Lincoln Contribution to celebrate world judge’s 90th birthday

Professor Duncan French, Head of Lincoln Law School and Professor of International Law, has recently contributed to a new book to celebrate the 90th birthday of His Excellency, Justice Christopher Weeramantry, a former Vice-President of the International Court of Justice.

Judge Weeramantry has had a long and distinguished judicial and academic legal career. Lincoln Law School was fortunate enough to host Judge Weeramantry in 2015 to celebrate the launch of the Lincoln Centre for Environmental Law and Justice.

Professor French noted: “I have met Judge Weeramantry numerous times, and he always speaks articulately and passionately about the role of international law in solving global challenges. It was a real honour to contribute to a book marking his 90th birthday.”

The collection is – One World, One Home, One Law for All : A tribute to Judge Christopher Weeramantry, Stamford Lake Publication

Weeramantry contribution

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Lincoln Law School Collaborations in Guangzhou, China

Professor Duncan French, Head of Lincoln Law School, recently visited a number of universities in Guangzhou, China to discuss opportunities for collaboration as well as to discuss UK legal services and Brexit.

He was one of the keynote speakers at the South China Normal University’s international conference on the Reform and Development of China’s Lawyer System at which he spoke about recent consultations in England and Wales on legal training and legal regulation, as well as the potential effect on legal services of Brexit.

Whilst there, he signed a collaboration agreement with the Law School of South China Normal University.

He also visited South China University of Technology to renew its relationship with Lincoln Law School and to discuss future research and teaching collaborations.

Text of Professor French’s presentation on Lawyer Reform

Legal practice in England – recognising that the United Kingdom has multiple legal jurisdictions – is undergoing significant change and subject to substantial challenge.

In this short presentation, I want to outline three ongoing developments, relating to first, the training of lawyers, secondly, the regulation of lawyers and thirdly, the business environment of lawyers. Unsurprisingly, the third point relates to the UK’s decision to leave the European Union (so-called “Brexit”).

But first, legal training. As many of you will be aware, lawyers in England are divided between solicitors and barristers, the vast majority of lawyers being solicitors who while they have historically handled client work they have had fewer rights of audience before the courts, though this has changed dramatically over the last two decades.

For a long time, the training of solicitors has been separate from legal education. After a law degree (or an academic law conversion course following a non-law degree), students must undertake a one year practice-orientated diploma – the so-called Legal Practice Course, followed by two years of training with a law firm.

This model seemed to suit both the universities and many legal firms. However, the regulator – the Solicitors Regulation Authority (the “SRA”) – and some of the larger law firms have for sometime not been convinced as to the value of this approach, in terms of the financial cost of legal training to the student and doubts whether a decentralised approach to legal training can guarantee that the general public receives the same quality of legal advice.

The SRA is now proposing fundamental change, seeking to develop a standardised model involving common assessment of all prospective solicitors, but importantly without specifying the necessary routes to prepare for such an examination. The first of these examinations may be taken straight after a student’s law degree.

It could therefore mean that such preparation might be provided long-distance by legal training companies, it might form part of a law degree, or even theoretically that a student might self-study for the assessment.

The regulator believes this proposal will reduce costs while at the same time ensuring uniform entry standards of all future solicitors. As a legal educator, I am worried that students are being introduced into practice too early before they have learnt enough basic law (English law degrees are already usually only three years in length) and that no prescribed pathways to prepare for the assessment are being considered.

Moreover, I am not at all convinced that costs to the student will automatically fall or that legal advice will be guaranteed to improve.

What it seems to me to be about is an attempt by the regulator to try to achieve three things at once; first, an attempt to reduce the regulatory burden, secondly,  to reduce costs but thirdly, for the regulator to retain oversight and control. A paradox, which might be referred to as centralised deregulation.

And this paradox is reflected in the second development; namely changes to the regulation of lawyers.

The regulator is currently consulting on a significant reduction in the number and prescription of the rules which legal firms must comply with (referred to as the solicitors’ handbook and its code of conduct). A separate consultation is seeking to simplify the management of client accounts.

Again, these proposals are explicitly premised upon reducing bureaucracy and cost, while at the same time seeking not to undermine the care that clients receive. A regulatory system premised on broad principles, rather than detailed rules, certainly has the potential to achieve this, but equally it raises a genuine debate as to how far such an approach moves invariably towards open standards, greater self-policing and ultimately shifts more of the risk onto clients.

And finally, the current business environment; and upmost in my mind here is “Brexit”. How will the UK’s departure from the EU – likely sometime in the next three years – affect lawyers?

It is undoubtedly the case that any regulatory change provides opportunities for lawyers. Advising clients and operating in a new legal environment will always provide work for lawyers.

And if, as is likely, the UK leaves – wholly or in part – the EU single market and / or its customs union, businesses will be faced with new legal challenges, including but not limited to the added transactional burdens of continuing to trade in goods and services with traditional partners. For instance, if the UK were to leave the single market, there would be many additional regulatory and technical barriers to trade.

But if leaving the EU might provide opportunities for lawyers – especially in the short-term – there are many risks. Many English lawyers are, by definition, EU lawyers as their work has significant EU potential.

Moreover, there is significant risk of a substantial economic downturn in the UK economy because of Brexit, and this would equally impact upon the work of lawyers. A slow economy is always bad news for law firms.

And this does not just raise domestic issues. There is particular concern for the City of London and its financial market; will it continue to benefit from its present position as the preeminent financial city in Europe or will that diminish if the UK is no longer in the EU? And will London continue to be a centre for international arbitration?

These are important questions, for which there are no answers yet. And all of this raises a further issue; the ongoing political uncertainty as to when the UK will leave, and what Brexit will finally look like. Even if the ultimate outcome is beneficial for the UK, the transitional period risks doing substantial harm to the business opportunities and reputation of the legal environment in the UK.

As with all such developments, whether they are viewed positively or negatively is a matter for debate and perspective.  But never has it been so important for lawyers to think beyond their own individual legal specialisms and examine the broader regulatory structure.

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Professor French discusses climate change & President-elect Trump

Professor Duncan French, Head of Lincoln Law School and Professor of International Law, was interviewed recently on BBC radio about the Paris Agreement on Climate Change and the implications of the election of President-elect Trump.

Discussing the issue on Paul Hudson’s weather show, Professor French highlighted the significant implications for a Trump presidency for the Paris Agreement. If the US were to withdraw from the Paris Agreement, while it would not (at least immediately) jeopardise the agreement as a legally binding treaty on other States, it would have a profound effect on the international community’s ability to meet the temperature goal of keeping global temperature below the 2 degrees C increase on post-industrial levels.

http://www.bbc.co.uk/programmes/p04d6f21

 

Article 50 and international treaty-(un)making: An Overview

The recent High Court judgment on whether the Government can notify, under article 50 TEU, withdrawal from the EU unilaterally without recourse to Parliament raises significant constitutional issues.

In particular, it required consideration of the overarching principle of Parliamentary sovereignty, the extent of the residual nature of the Crown’s Prerogative and the effect of the enactment of the 1972 European Communities Act.

The High Court found that the Government did not have a “prerogative” right to notify withdrawal without Parliamentary approval.

The full judgment is here: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

From an international law point of view, there are four points which I think are worth highlighting.

First, “Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation. Put shortly, Parliament has power to repeal the ECA 1972 if it wishes” (para 21)

Secondly, as the High Court noted at paragraph 30: “Another settled feature of UK constitutional law is that, as a general rule applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers”.

Thirdly, the Government had argued that, in accordance with the above, there is a “proper sequencing of the respective functions of the Crown and of Parliament”, namely “the withdrawal treaty would in any event have to be approved by Parliament by way of the negative resolution procedure in the [Constitutional Reform and Governance Act 2010] before that occurred; if it contained provisions requiring application in domestic law, primary legislation would also need to be introduced to allow that” (para 76(7)). This reflects the old Ponsonby convention dividing powers between the Government on the international plane and Parliament domestically.

Fourthly, notwithstanding the validity of this approach generally, in relation to the European Communities Act however “Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers” (para 94).

It is thus right to identify the judgment as a fundamental reassertion of Parliamentary sovereignty, but equally it is not as sweeping as might be thought – the judgment relates to EU law, not to treaty-making (and unmaking) generally.

There is some suggestion that a similar argument might apply to the Human Rights Act / European Convention on Human Rights but this must be conjecture at this stage.

Of course, the judgment is to be appealed to the Supreme Court, and from an international law perspective, I would suggest keeping an eye on three things:

1) how will the Supreme Court deal with the argument that the moment of article 50 notification does not per change British law, but that this occurs later at the point of withdrawal (and by repeal of the ECA)? This was the finding of a Northern Ireland court on a similar (though not exactly identical) claim. How far notification – in contrast to the later withdrawal treaty – is itself perceived as affecting domestic law will be fundamental to how the Supreme Court determines the appeal. In part, but only in part, the question of the revocability of article 50 is relevant here.

2) how will the Supreme Court approach the earlier case of ex parte Rees Mogg, that the High Court distinguished, but which had said that “When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms” or arguably at least by necessary implication? Even if this is true, does it apply to withdrawal, in contrast to situations of “alter[ing] or add[ing] to the EEC Treaty”?

3) in short, will the Supreme Court agree with the High Court that the ECA and the incorporation of EU law into British law displace the traditional rules (see above paras 30 and 76(7))?

These are only a small number of the questions that the Supreme Court will need to consider.

Professor Duncan French

Discussing Law, Anthropocene and climate change

It has been a busy week for environmental law for academics at the Lincoln Centre for Environmental Law and Justice. Professor Duncan French, Dr Stephen Turner and Visiting Professor Louis Kotze spoke at the University of Strathclyde recently on international law and the Anthropocene. The fact that humanity is directly affecting the geological processes of the Earth is frightening and international rules will have to respond accordingly in a proactive and meaningful manner. Later in the week, Professor French spoke at a workshop on Governing the Planet at the University of Warwick on climate change and recent regulatory innovations in the Paris Agreement, the ICAO civil aviation organisation and as regards the Montreal Ozone Protocol.

The beautiful countryside around The Clark