Student Law Journal, Volume VIII (2016) (PDF)

GRAY’S INN STUDENT LAW JOURNAL VOLUME VIII EDITED BY EDWARD DEAN Association of Gray’s Inn Students LONDON · 2016 CONTENTS Foreword To what extent have our courts adopted a coherent approach to proportionality? Thomas Phillips (Winner of the Michael Beloff Essay Prize) 1 Does the criminal law of joint enterprise cause injustice? Henry Moore (Winner of the Lee Essay Prize) 11 Burying the bomb: the wider lessons that can be drawn from the 2015 Iranian nuclear deal on the law on the non-proliferation of nuclear weapons John Churchill 35 The jury system in modern rational law: is the jury system an absurd institution whose only claim to legitimacy is its archaic root? George Mavrantonis 43 The evolution of procedural exclusivity: Is it time to Strike out the rule in O’Reilly v Mackman? Siân McGibbon 52 Presumed consent: the Human Transplantation (Wales) Act 2013 Michael O’Reilly 60 A principled reform of the Lord Chancellorship Fraser Peh 75 The demise of ‘doctor-knows-best’: development of the law of consent from Sidaway to Montgomery Charley Turton 88 Should the penalty rule be abolished? Phoebe Whitlock 99 A critical assessment of the law on assisted reproduction and legal parentage 108 Grace Wright Should torture be permissible when there is a ticking time bomb? 116 Dilan Yaslak Case notes Davies v Davies [2015] EWHC 015 (Ch) Luke Tattersall 126 FOREWORD Edward Dean I have enjoyed editing and compiling this year’s volume of the Student Law Journal. Given the incredible number of submissions received, I have had to be particularly judicious in deciding which would make the cut. The articles below cover a wide range of topics. There is a strong international theme this year, with submissions on the international law aspects of torture and non-proliferation. Constitutional law is also addressed in submissions on reform of the Lord Chancellorship and the conceptual foundations of the jury system. Importantly, cutting-edge developments are analysed; included are submissions on the new Welsh opt-out system of organ donation, medical consent and the state of fertility and parentage law. I hope that my selection offers readers the opportunity to engage with areas of law they would otherwise not encounter. I also hope that it inspires both current and future members of the Inn to get involved with next year’s publication and with the AGIS community more generally. I am grateful for the participation and effort of all of those who submitted articles this year – long may it continue. TO WHAT EXTENT HAVE OUR COURTS ADOPTED A COHERENT APPROACH TO THE ISSUE OF PROPORTIONALITY? Thomas Phillips The argument of this essay is that the courts have failed to adopt a coherent approach to the issue of proportionality. The essay chooses to focus on our courts’ approach to proportionality in purely domestic cases. This choice is a result of the author’s understanding that the English courts have greater agency in respect of the common law than in respect of European law. Given that the ability to adopt a coherent approach must be premised upon the assumption of agency, it is suggested that a cogent answer to the question at hand must be focused on the common law. In order to draw its conclusion, this essay seeks to address three distinct, but interrelated, questions in respect of the coherency of the courts’ approach towards: 1. The content of proportionality. 2. The relationship between proportionality and Wednesbury1 unreasonableness. 3. The status of proportionality at common law. The reason for tackling the issues in this particular order is that the author hopes that the discussion of the first two questions will inform the subsequent discussion of the status of proportionality at common law. It will be argued that the courts have adopted an incoherent approach to the issue in all three respects and ultimately that the question concerning proportionality will remain unanswered until the Supreme Court authoritatively grapples with this issue. TO WHAT EXTENT HAVE OUR COURTS ADOPTED A COHERENT APPROACH TO THE CONTENT OF PROPORTIONALITY? It is the argument of this essay that although there has been some agreement, the courts have failed to coherently demarcate the content of proportionality at common law. It is argued that, in this respect, there are 1 Wednesbury unreasonableness refers to the test originating in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 1 two key areas of difficulty. Firstly, our courts have not made clear whether the application of proportionality (in terms of the test to be applied) is uniform or whether it is dependent on the context. Secondly, the courts have taken an incoherent approach to the role played by the four stage test identified in Bank Mellat v Her Majesty’s Treasury2 in the application of proportionality. In respect of the first area of difficulty, our courts have posited two conflicting approaches to the issue. On the one hand, there has been a tendency to understand proportionality review as a singular doctrine of judicial review which could be applied to all appropriate cases. Support for this view can often be found in recent case-law: Lord Neuberger’s judgment in Keyu v Secretary of State for Foreign and Commonwealth Affairs3 appears to cast proportionality as a singular concept which is to be contrasted with rationality; Lord Sumption remarks in Pham v Secretary of State for the Home Department4 that ‘English law has not adopted the principle of proportionality generally’ (emphasis added) and Lord Carnwath, in Kennedy v The Charity Commission,5 questions ‘to what extent the proportionality test… has become part of domestic public law.’ (emphasis added). On the other hand, it has been argued that proportionality is to be applied differently on the basis of the context. Proportionality might have one use as a general ground of review and a different use as a tool for reviewing interference with fundamental rights. Lord Mance, in Pham, argued6 in favour of this approach: ‘It may be helpful to distinguish between proportionality as a general ground of review of administrative action, confining the exercise of power to means which are proportionate to the ends pursued, from proportionality as a basis for scrutinising justifications put forward for interferences with legal rights.’ Lord Kerr in Keyu7 subsequently cited this passage with approval and Lady Hale’s judgment8 in the same case also expressed agreement with this distinction. However, given the alternative approach taken by Lords Neuberger, Carnwath and Sumption, a conceptual difficulty persists. It remains unclear 2 The test was identified by Lords Sumption and Reed; Bank Mellat v Her Majesty’s Treasury [2013] UKSC 39, [20] and [74] respectively. 3 Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [131]–[134]. 4 Pham v Secretary of State for the Home Department [2015] UKSC 19, [104]. 5 Kennedy v The Charity Commission [2014] UKSC 20, [214]. 6 Pham, [113]. 7 Keyu [280]. 8 ibid, [304]. 2 whether proportionality should be understood as having a uniform application, regardless of context, or whether it is to be applied differently in cases where it is used as a general ground of review than in cases where a fundamental right is in play. The essay will now turn its attention to the second difficulty, the courts’ treatment of the Bank Mellat test in respect of proportionality at common law. The case in question, Bank Mellat, was decided within the context of European Law. Nonetheless, Lords Sumption and Reed formulated a four- stage proportionality test which they believe could be derived as much from the common law as from European law. The question, which has since been touched upon in the Supreme Court, is whether or not this is the test which would be applicable in a common-law proportionality review. Lord Sumption’s formulation of the test was as follows: ‘(i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.’ Although Lord Reed’s formulation of the test was marginally different at the fourth stage, he was quick to note that there was “no difference in substance” between the two tests. Lords Carnwath and Neuberger, in Youseff v Secretary of State for Foreign and Commonwealth Affairs9 and Keyu10 respectively, appear to be of the opinion that this test would be the test to apply if proportionality were accepted as a ground of review at common law. Lord Kerr11 appears to occupy something of a middle-ground on the issue: although he implies the Bank Mellat test is suitable in cases concerning an interference with a fundamental right, he argues that the test would be inappropriate if proportionality were to be used as a general ground of review: ‘In the first instance, there is no legislative objective and no interference with a fundamental right; secondly, it is difficult to see how the “least intrusive means” dimension could be worked into a 9 Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3, [57]. 10 Keyu, [133]. 11 ibid, [281]. 3 proportionality exercise where the decision did not involve interfering with a right.’ Lord Kerr then goes on to explain that he: ‘Envisage[s] a more loosely structured proportionality challenge where a fundamental right is not involved.

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