2

Committee

President Elin Thomas - The face and main external representative of the Society. Responsible for co-

ordinating sponsorship and formulating a strategy for the Society.

Vice President Sam Horn - The Society‘s second-in-command. Responsible for running things when the

President is busy and/or otherwise unavailable.

Treasurer Antoine Brier - Responsible for keeping track of, and allocating, the Society‘s funds.

Secretary Ellie Austin-Williams - Acts in a supporting role for the Society, with her main task being the

minuting of committee meetings.

Social Secretaries Colin Colas & Mark Primrose - In charge of arranging social events, including the win-

ter and spring balls, for law students and their guests.

Academic Events Coordinator Bash Mansaray-Savage - Organises and publicises law and non law aca-

demic events.

Sports Representative Jonny Patterson - Coordinates the Society‘s sporting activities, among them net-

ball, football, cricket and rugby.

Magazine Editors Dan Anghelache & Aaron Mulford - The editors decide on and source content for the

magazine, design the magazine and edit submissions, as well as writing some articles themselves.

Negotiations Officer Anca Chimirel - Responsible for organising and planning the negotiation workshops,

the negotiation competition and teams for national negotiation competitions.

IT Officer Milly Bygrave - Responsible for the administration of the website and the blog.

Non-law Reps Josh Darby-Maclellan & Harriet Millard - Promoting LawSoc events to non-law students.

USLS Committee Introducing your new Law Society Committee for 2013/2014

legalmattersmag @LegalMattersMag

Contents

4 Your Update

5 Islam and the Law: the

Debate about the Niqab in

Europe

8 The Trouble with Tweeting

11 COVER STORY - Interview

with Alastair Hudson

17 Constitutional law in the

world of Harry Potter

21 Air & Maritime Law – Costa

Concordia

24 Law ball

25 Sports

Welcome

Dan Anghelache

Aaron Mulford

Editors

Dear Readers,

We, as the new editors, would

like to welcome you to the

Winter 2014 Edition! An online

version of the magazine can be

found at our website:

www.legalmatters.wordpress.com.

This issue features an exclusive

interview with the one and only

Alastair Hudson, Professor of

Equity & Finance Law. A truly

excellent read !

Also, Fiona will take us through

the current debate centred

around the wearing of the Niqab,

specifically in the context of the

courtroom.

Finally, Mark gives us an

account of the wonderful event

that was the Christmas Law ball.

We would like to thank all of our

contributors for this edition.

Without their hard work and

dedication we would not be able

to produce the magazine.

We hope you enjoy the Winter

2014 edition of Legal Matters!

Dan Anghelache and Aaron

Mulford.

Editors Legal Matters 2013/2014

Credits

Editing, Design and Website by

Dan Anghelache & Aaron Mulford

Many thanks to

all of our

contributors

4

News

Your Update An update on the major changes in the law

since the last issue

Criminal Justice and

Courts Bill

In an effort to consolidate the

budget of the judicial system,

the Criminal Justice and

Courts Bill proposes that con-

victs should be the new

sponsors of the courts. If the

Bill is enacted into law, in the

future we will see criminals

literally paying for the crimes

they have committed as the

Bill is set to impose punitive

fines on inmates.

Scientology

The supreme court has re-

cently decided that Scientolo-

gy is a religion. It has been

speculated that the repercus-

sions of this decision will en-

compass several areas of the

law, including family and tax

law.

Russian Amnesty

The Russian State Duma, on

the 10th December 2013

passed an act that gave am-

nesty to at least 20,000 pris-

oners, which included mi-

nors, invalids, veterans, preg-

nant women, and mothers.

The two members of the im-

prisoned band ‗Pussy Riot‘

were released under this law.

Sexual assault acquittals

The former BBC DJ David

Lee Travis was cleared of 12

accounts of sexual assault.

This followed in the wake of

other high profile acquittals

involving historical sex abuse

such as the Coronation

Street actor William Roache.

5

Comment

Islam and the Law: the Debate about the Niqab in Europe

H ijab is the

requirement, as

decreed by the

Qur‘an, that both men and

women must dress

modestly. For women, this

means dressing modestly in

front of men who are not

family members. There are a

variety of sartorial hijab that

can be worn to achieve this

aim, however, the face veil

or the niqab, which can

either cover everything but

the eyes or just half the face,

has been the subject of

much legal debate in

Europe.

Headscarves and religious

symbols were banned in

schools in France in 2004

and there is consideration for

doing the same in

universities. The Act

Prohibiting the Concealment

of the Face in Public 2010

was passed in France

banning all face-coverings in

public, including the niqab.

France has the largest

Muslim population in Europe

and there are allegations

that human rights are being

infringed by making it illegal

for Muslim women to leave

the house in their religious

garments. The penalty for

breach is a fine, and a hefty

fine of €30,000 and a year

imprisonment for family

members who pressure a

woman to wear the niqab.

When the bill was first

proposed, France‘s

Constitutional Council

warned that it might be

unconstitutional. However,

after reviewing the actual bill,

the Council approved the

ban.

As France is a secular

republic, in imposing the ban

it seeks to promote gender

equality as it considers the

practice of women wearing

the niqab as promoting

inferiority of women.

However, it could be argued

that enacting legislation

which dictates what Muslim

women are allowed to wear

outside of the house is no

better than the alleged

reasons for banning the

niqab in the first place. The

law perhaps does more to

restrict Muslim women‘s

rights than wearing the niqab

does as they no longer have

the choice whether to wear it

as the government is now

making the decision for

them. Furthermore, it

stigmatises these women by

legislating that their personal

choice of clothing is now

considered criminal.

In Belgium ―Law of June 1st

2011 on the introduction of a

ban on the wearing of

clothing that partly or

completely covers the face‖

or article 563bis, is a

provision the Belgian

criminal code which bans

facial coverings in public that

do not allow for the wearer to

be identified. The ban was

challenged in the Belgian

6

Constitutional Court by two

women who wear the niqab on

the basis of a claim of violation

of human rights such as

freedom of thought,

conscience and religion

(Article 9 of the European

Convention on Human Rights

(ECHR)) and respect of

private life (Article 8 of the

ECHR). Furthermore, the

applicants relied on article 23

of the Belgian Constitution

which ―protects the right to

lead a life in keeping with

human dignity‖ and Article 3 of

the ECHR, ―No one shall be

subjected to torture or to

inhuman or degrading

treatment or punishment.‖

They argued that criminalising

innocuous activity stigmatises

the Muslim population and

fails to uphold their dignity.

It was found that the ban,

however, was not an

infringement of human rights

as the aims of the ban - public

safety, gender equality and

integration – were found to be

legitimate so long as the law

was interpreted not to extend

to religious places of worship.

A Swiss canton of Ticino has

even voted to impose a ban

on face veils as well. What is

curious about these laws

banning niqabs and other face

-coverings is that despite the

potentially large populations of

Muslims in these countries,

such as 5 million in France

and 400,000 in Switzerland,

the number of women who

wear the niqab is very small,

estimated at approximately

only 2000 people in France

alone. Thus, it is questionable

why legislation banning niqabs

is necessary when it pertains

to so few people. This leads

one to the conclusion that

there necessarily must be

ulterior motives behind such

bans in Europe.

Given the small numbers of

women who actually do wear

the niqab, it is puzzling why

the niqab is so offensive a

symbol in a society that claims

to be democratic. Democratic

societies are supposed to

value freedom and liberty,

however, by legalising bans

on clothing worn by a small

minority of women,

governments in Europe are

putting the interests of the

many before those of the few,

what liberal John Stuart Mill

would call a ―tyranny of the

majority;‖ especially when it

would seem that most of these

women are doing nothing

more than following the

dictates of their religion.

In Britain, the debate over the

niqab began in 2006 with

comments made by Labour

MP Jack Straw that he would

prefer it if women did not wear

a niqab when they came to

speak with him. Straw argued

that niqabs were a sign of

―separation and difference.‖

In 2010, Conservative MP

Philip Hollobone tried to pass

a Private Members‘ Bill to

regulate ―certain facial

coverings‖ called the Face

Coverings (Regulation) Bill

2010. Hollobone argued that

he felt that facial coverings

such as the burka and niqab

were ―inappropriate‖ and

impeded integration into

British society. Hollobone was

17th on the list, and so, the bill

only reached the first reading

in the House of Commons and

failed to progress through

Parliament and be passed.

The issue of the niqab has

arisen again recently in British

media when Birmingham

Metropolitan College banned

face-coverings which prevent

an individual from being

identified, again including

niqabs. After the outcry, the

ban was reversed to allow

―specific items of personal

clothing to reflect their cultural

values.‖ Given the college‘s

decision to reverse its ban, it

would seem that at least on

paper in Britain the niqab for

now is generally accepted.

Unfortunately another area of

public life has recently called

wearing the niqab once again

into question: the courts.

The issue of niqabs in the

court first arose in 2006, when

a lawyer in Britain wearing a

niqab appeared at an

Comment

7

immigration tribunal hearing

representing a client and was

ordered to remove the niqab

when it was alleged that the

judge could not hear her while

she was wearing it. She

refused to remove it and the

dispute was taken to the

president of the court, the

Asylum and Immigration

Tribunal. At the time it was an

unusual dispute. This is no

longer the case.

Recently, a judge made legal

history when he ruled that a

Muslim woman wearing a

niqab while on trial for witness

intimidation could wear it in

court but had to remove it

while giving evidence so that

the jury could clearly see her

facial expressions. Judge

Peter Murphy also ruled that

the woman would not have to

give evidence in open court

without the niqab. She may

give evidence via videolink or

behind a screen with only the

judge, jury and her counsel

being able to see her face.

Also, an artist‘s sketch of her

face uncovered was not to be

drawn.

This is the first time this

strategy for dealing with

defendants in the court who

wear a niqab has ever been

carried out. Judge Murphy

stated that he felt that ―the

court should respect freedom

of religious expression‖ and

urged for legislation on the

matter.

The decision goes against a

previous ruling by a judge in

2012, in which it was decided

that a woman wearing a niqab

could not sit as a juror in an

attempted murder trial with her

face covered.

Some criticise Judge Murphy‘s

decision to allow the niqab,

arguing that a defendant‘s

face must be visible at all

times during a trial. However,

Judge Murphy defends the

decision as being in accord

with the Human Rights Act

1998, with respect to the right

to manifest one‘s religion. The

limitation on this right, he

argues is the need to have the

defendant remove the niqab

while giving evidence so as to

ensure a fair trial. The

defendant will be barred from

giving evidence at her trial if

she refuses to remove her

niqab.

While there are closed

material procedures in which

the principle of open justice

are somewhat eroded in

favour of the state, most

contrastingly, Judge Murphy‘s

ruling bends the principles of

open justice back in favour the

defendant, taking a hard

stance in favour of human

rights and the right to a fair

trial.

Laws enacted to promote

―integration‖ are always

troubling as they are

inherently xenophobic and

separationist in themselves,

as they necessarily exclude

those who fail to conform to

the ―ideal‖ cultural or national

identity. Furthermore, there is

no telling where the line will be

drawn – today it is face-

coverings and religious

symbols tomorrow who knows.

In the end, it is these laws,

rather than practices such as

wearing the niqab, that are

divisive forces in society.

Thus, something must be

done to turn the tide of what

would seem to be legislated

Islamophobia.

It is left to be seen whether

Parliament will resume its

debates about face coverings

or provide legislation

regarding the use of the niqab

in courts.

By Fiona Raye Clarke

Comment

8

Comment

I t can be said that social

media facilitates

widespread

communication and the

creation of a means of

generating global discussion

about topical issues, which

engages millions of online

social media users every day.

Despite this not all topics up

for popular discussion can be

instantly published to an

audience of thousands without

a thought for repercussions.

The Attorney General Dominic

Grieve has issued advisory

notes, which are publicly

available online, to discourage

twitter users from expressing

remarks and opinions

concerning criminal cases

which could pervert the course

of justice through

compromising the integrity of

court proceedings. This need

to educate people about the

legal drawbacks of tweeting

concerning such cases is

imperative in protecting

people from publishing posts

that equate to contempt of

court.

All published comments must

comply with the Contempt of

Court Act 1981, which

encompasses a breadth of

behaviour types which

intentionally or accidently

undermine or could be

reasonably understood to

pose a high probability of

undermining a defendant‘s

right to a fair trial.

Interestingly, the Contempt of

Court Act pre-dates the

emergence of the Internet

thus the role of social media in

committing contempts may

become problematic if this

legislation fails to sufficiently

regulate this rising form of

publication.

In an attempt to deter potential

controversial publications, the

General Attorney has

expressed caution to users of

online social media that the

penalties for committing

contempt of court may

increase in severity. He also

said that claiming ignorance is

not a valid excuse. Similarly,

social media users must be

aware that re-tweeting is

equally as defamatory as

writing the original post.

“Re-tweeting is equally as

defamatory as writing the

original post”

A key example of this issue is

illustrated in the case of Chad

Evans (which generated in

excess of 6,000 tweets),

whereby nine people revealed

the identity of the victim,

through online social media,

which breached the victim‘s

legal right to lifelong

anonymity. The nine people

who used social media to

comment on the case not only

identified the victim but were

also the source of the abuse

directed at the victim, which is

a further aspect of online

social media all users need to

be aware of.

Under the Communications

Act 2003, section 127;

s.127 - Improper use of

public electronic

communications network

(1) A person is guilty of an

offence if he—

(b) causes any such

message or matter to be so

sent.

(2) A person is guilty of an

offence if, for the purpose of

causing annoyance,

inconvenience or needless

anxiety to another, he—

(a) sends by means of a

public electronic

communications network, a

The Trouble with Tweeting

9

message that he knows to

be false,

(b) causes such a message to

be sent; or

c) persistently makes use

of a public electronic

communications network.

This act outlines the details of

what constitutes as an

improper use of public

electronic communications

networks, as should be

adhered to by all those who

publish content online.

Equivalent in relevance is the

Public Order Act 1986, section

4A, which extends the

responsibility of online users to

act in ways that are not

deemed abusive.

s.4A - Fear or provocation of

violence.

(1) A person is guilty of an

offence if he—

(a) uses towards another

person threatening, abusive or

insulting words or behaviour,

or

(b) distributes or displays

to another person any writing,

sign or other visible

representation which is

threatening, abusive or

insulting,

with intent to cause that

person to believe that

immediate unlawful violence

will be used against him or

another by any person, or to

provoke the immediate use of

unlawful violence by that

person or another, or

whereby that person is

likely to believe that such

violence will be used or it is

likely that such violence will be

provoked.

These Acts are not

orchestrated with the objective

of restricting a person‘s right to

the freedom of speech but it

provides a framework from

which discussion can flourish in

lawful manner.

At the end of the day – would

you want your trial influenced

by online speculation?

By Milly Bygrave

10

Find us online!

Can be found at:

legalmattersmag

@LegalMattersMag

http://legalmattersmag.wordpress.com

11

A&D: Where are you from ?

A. Hudson: I am from North

London. My family is all from

the North-East and Scotland. I

was the first one that was born

outside the North-East.

What is your favourite

football team ?

Sunderland, it is an inherited

disease.

Where did you go to

university ?

I went to King‘s College

London, that is where I did my

undergraduate degree. This

was in 1987. This was the

time of the ‗Big

Bang‘ [Thatcherite de-

regulation of Finance Industry]

which probably led to my

interest in Finance. I went to

Bar School directly after

University because I had a

Scholarship and then I did my

pupillage with the LLM starting

at the same time. The LLM

was at King‘s London. I

finished it when I was working

at Citibank. I started my PhD

when I was at Goldman

Sachs. This was taken at the

Institute of Advanced Legal

Studies University of London.

What is your approach

on teaching and education

generally ?

Modern universities just make

me want to cry. Since they‘ve

decided to become

businesses they are just less

good at education. One might

look at the website of a

leading Russel Group

University not very far from

where we‘re sitting and notice

that its mission statement on

the front page of the website

does not include the word

‗teaching‘. I understand

research is a big part of what

Cover Story

Interview with Alastair Hudson, Professor of

Equity & Finance Law

12

we all do, I‘m big on my

research as well. But teaching

is obviously important. I like a

statement that a Professor in

Kennedy made at King‘s when

he was head of school, which

sums up my feelings about

teaching generally. He said

that undergraduate teaching

was the Sun around which all

the other planets revolve. I

really think that that is what

university law school should

be about. Nowadays, in the

real world, we‘ve got twin

Suns, we‘re on Tattooine. Us

academics are employed on

the basis of our research. I

think Southampton is starting

to change, but most

universities won‘t. They don‘t

promote on the basis of

teaching quality. You are

never asked about it very

much except for some passing

questions. Also, there are all

kinds of knock-on effects, as

ordinary academics become

pressured. You have to do

your research so it‘s difficult to

find time to do the things you‘d

like to do with students. The

new people coming into

academia are expected to do

their research and other things

tend to follow on as well.

When I talk about teaching

excellence people look at me

rather oddly. However, if I‘d

have a philosophy, it‘s about

success. Everyone talks about

excellence in teaching, and I

don‘t really know what

excellence means in that

sentence. For me it‘s about

the success of the individual

students and them becoming

the students that they want to

be. I think education is about

people coming here at 18,

growing out of the chrysalis of

their parental home and

becoming themselves. You

can see when they come,

three weeks into term

suddenly they have new

clothes, a new haircut. As a

teacher I feel that I am partner

in students achieving success

on their own terms.

Do you think your politics

informs your law ?

Undoubtedly. My politics isn‘t

an external thing, I can‘t stop

myself from seeing things in

political terms. For example, I

have a friend that loves Jane

Austin, and I can see the

point. However, the trouble is I

always get bothered by Pride

and Prejudice. For example

where the woman has to get

to the other place and has to

walk over the wet and cold in

order to do this. They send the

servant girl to walk through the

woods, in the dark, to inform

everyone in the house from

which the upper class lady

came form that she is ill and

will be staying over. What

always bothers me is that no

one cares about the poor

servant girl and she is never

mentioned again. She is just a

conduit for a message and for

me the politics just screams

out. I am sure you‘re going to

lose your home, but then

again you‘re the bourgeoisie

and this is the system that‘s

kept you and now it‘s spitting

you out. Politics is almost like

a lens through which I see a

lot of things.

Are you involved in the

arts?

I am a fellow of the Royal

Society Arts. It is the Royal

Society of Arts, Manufacture

and Commerce. It was started

in the 19th century, this fits in

with my 19th century

Fabianism. I love it as a

century. A fascinating change

in our politics, literature and

modern capitalism starts

there. It [the RSA] was

supposed to be a society that

promotes the Arts,

Manufacture and Commerce,

Dickens was its Secretary for

a while. My mum wanted to

get a qualification and so the

RSA gave a huge number of

correspondence courses.

They don‘t offer courses

anymore and I wish they did.

Who was your favourite

tutor? Who inspired you to

take up teaching ?

Tricky. If you look at my

Understanding Equity you‘ll

see that it is dedicated to

someone called Jeff Price who

was my personal tutor at

King‘s while I was an

undergraduate, so it had to be

him. Very welsh, very gay, his

words. I became senior tutor

at Queen Mary and I modelled

myself around him really, he

had that same role at King‘s.

He had the picture of the

13

Queen Mother on his wall and

he used to describe himself to

the effect that he had been

mother to the entirety of the

undergraduate population. He

died a few years ago

unfortunately. He came into

teaching trusts law before

David Hayton came, who was

another great influence to me.

The way he taught trusts and

started off by telling us about

the crusaders and doing a very

simple analogy with the

crusaders that had to come

back and reclaim their land,

English law saying that it was

held on trust for them. It was

such a simple way of cutting

through history and getting to

the heart of what the problem

was. I remember thinking that

it was very clever how he

managed in such an easily

comprehensible way to cut

through really difficult stuff in a

few minutes. Another formative

influence for me was that we

did not have lectures at King‘s,

everything was done in

tutorials and we had to do all

the reading ourselves when we

prepared for seminars. We had

to prepare a huge amount of

material each week as we had

two seminars per module. The

amount of work was

staggering. Jeff was incredibly

good at pulling all this together

and had so much time to give

to the students. Eventually, we

became very good friends.

What’s your favourite case?

My favourite case might well

be Hammond Mitchell as I get

to act that one out as well. It

involves a couple. He is a 45

year old used car salesman

who‘s driving through Epping

Forrest one day and passes by

a woman who‘s in her twenties

and is a Bunny Girl at the

Playboy Nightclub. He picks

her up and they start this 11

year tempestuous relationship.

What‘s hilarious is imagining a

used car salesman driving a

big Jag, seeing this woman,

who was presumably dressed

for work, and immediately

hitting the brakes. We‘re told

that they‘re relationship started

immediately. And you just

think: that means they had sex

that day doesn‘t it ? It is a

great case because it brings to

life who are these people, how

the judge is interacting with

them as human beings and

how is he seeing the need not

to use abstract rules to decide

the ownership of their homes

but to think about what it

means to these people . I like

also Burns v Burns. The case

where the old man is given an

annuity to pay for residential

nursing care for the rest of his

life rather than a right in his

home. That‘s wonderfully

humane, they were looking at

his needs. I love trusts of

homes as there is so much in

it. Actually, I am going to write

a book on trusts of homes, this

is one of my great projects for

2014-2015.

Who is your favourite

judge ?

I suppose I am grateful to Lord

Browne-Wilkinson for

Westdeutsche Landesbank

and for putting trusts law back

where it should have been by

just telling everyone: ―Hold on

now, let‘s start off from the

beginning‖. He and David

Hayton are quite alike, they are

physically big men, taller than

me. I like his really steady ―let‘s

rethink trusts law from the start

and let‘s number the

propositions‖. Browne-

Wilkinson probably gets the

vote from me. People like

Denning are fascinating. I don‘t

think I could ever love

Denning. His politics are

obnoxious. I mean… ―The EU

is an incoming tide‖… ― Men

and women are inherently

different‖. These are just

attitudes from another age.

He‘s fun in the way he tried to

rewrite the law, an activist

judge is always interesting. He

also hated the trade unionists.

During the general strike he

went to the barricades to resist

them. I don‘t mind him as a

judge, as he is interesting to

study and think about as a

scholar. First years seem to

love him at first because he

seems to be doing the right

thing, but after a while they get

bored with him upsetting every

rule. However, in terms of

judges I know, I am big fan of

Baroness Hale. She is a

fantastic human being. For the

record, I think her partially

dissenting judgment in Prest v

Petrodel is a work of lyrical

genius. This will upset all

company lawyers in the

14

building. I sent her a copy of

Understanding Company Law,

as we were in

correspondence, and that is

where I advanced the my idea

on the issue. She rather liked

it and mentioned it in her

judgment.

Have you considered

writing another book on the

law on homelessness ?

I actually have a contract with

a publisher to update and

rewrite that book in effect. The

law on homeless was quite

controversial at that time as

there was a little group of

housing barrister that liked to

think that they owned housing

law, and that was quite

annoying. Unlike their book

which was a kind of manual

for the housing lawyer, my

book was about the homeless,

about the way in which the

way the law treated the

homeless. There is a lot in

there about how squatting was

often treated, how operation

Scarecrow involved moving on

the homeless. Hundreds of

people were moved off the

street by this deliberate policy

of encouraging to commit

offences, so that censuses

showed there were less street

homeless, as they were all in

cells. The rule was that in

order to get it published it had

to be enough for practitioners

to be able to use. On the next

one I would instead write

instead much more of a

monograph about how the law

and the homeless interact.

There is a lot of law on this at

the moment, legal aid and

everything. The problem is

that this book seems to go

further and further down the

queue and I know it needs me

to take a year or two to really

get back into the subject

again, to get involved with the

charities. I used to advise the

Big Issue and wrote in some

of their early issues. I was at it

in the old days. I used to go

and talk to their vendors when

they were just starting out.

When the first edition came

out I think everyone though it

would last a few months and

that would be it. I remember

sitting at a dinner at Lincolns

Inn and someone said: ―You

know what we should do? We

should go and find homeless

persons and we should

represent one of them each‖.

The problem with me is the

next morning I think ―Yeah

let‘s do that thing we said we

were going to do last night!‖

and everyone else goes ―What

are you talking about?‖. And

so, no one actually wanted to

go represent people so I got in

touch with the Big Issue telling

them I wanted to help.

Was Goldman Sachs the

vampire squid when you got

there ?

No one said Goldman Sachs

were saints when I got there.

But it was a very different

organisation indeed. Matt

Taibbi writes a fantastic article

called the ―Great American

Bubble Machine‖ which is in

the Rolling Stone .It has this

marvellous sentence at the

beginning where it says that

GS is vampire squid sticking

its blood funnel anywhere it

can smell money. What he

doesn‘t unpack however is

that there are at least three

stages of GS. There was the

GS that was in large part

responsible for the 1929 crash

in New York, as it fuelled a lot

of that leverage. Then,

somewhere in the 20th

century, it began to learn a

lesson about how it ought to

be and it decided that it was a

New York Jewish firm that had

New York Jewish morals.

Jewish morality has a lot to do

with principles of acting in

good conscience and integrity.

When I started at Goldman it

was a partnership, now it is a

corporation, which is phase 3.

So in phase 2 all the partners

were individually liable if the

firm suffered losses so they

had very good risk

management. Also, they had

business principles. They had

12 of them, a very good

biblical number. On starting, if

you were on one of their kind

of sensitive positions, like I

was as a lawyer, you had to

have lunch with one of the

partners. They devoted a lot of

time to us. We had to have

looked at the business

principles and thought about

them and they threw lots

hypotheticals at us: ―what

would we do if… ?‖. The

whole idea was to inculcate us

15

their business principles. Very

much like the principles of

businesses rulebook now in

the FSA handbook. I really

liked that, I felt that there was a

moral background. As a

lawyer, if there was something

problematic, I felt I could stop

the machine and even did on

one occasion. The partners

were always behind you. A

very good book by William

Cohan discusses GS since it‘s

become a corporation. All of

that moral connection seems

to have gone, as well as the

legal liability connection. I think

they are in a 3rd

phase now

where they are behaving as

they are behaving. There‘s and

old expression from one of

their old senior partners which

said ―we should be long term

greedy‖. This means you don‘t

piss off your customers, you

don‘t take advantage of

anyone, you seek instead to

establish a good name in the

market, which is actually the

business ethic that Warren

Buffet adopts.

Not saying that Alastair

Hudson is a child of the 80’s

but here are all the Star Wars

references:

Was the federation evil [the

Trade Federation in the Star

Wars prequels]? We need to

discuss what those trade tariffs

were about? I think the

prequels make for a new story.

The original trilogy is all to do

with the American Civil War. It

is all the renegades, the

‗Dukes of Hazards‘ resisting

the North in their uniforms. I

was never sure was the

Empire actually elected? There

is a Parliament. I always

wondered what happened after

the Universe wide revolution

[in Return of the Jedi]. The

Empire Strikes Back is just a

pirate film. They even swing

across things on ropes. All he

[George Lucas] has done is

copy other genres. The

‗Restitution school‘ are now

splintered in the fight, it is a bit

like the Jedi‘s were at one

point in the films.

Which are your Desert

Island discs ?

What would the eight be? I

have a list somewhere on my

iPod, although this is more of a

playlist:

The Cure - A Forest (Live

version from 1994 live in

Oxford from the concert

album).

The Stone Roses - Made of

Stone.

The Smiths - Handsome Devil

or This Charming Man.

Bauhaus - Bela Lugosi‘s Dead

(Classic Live version).

Underworld - Dirty Epic.

Michael Haydn or Nicholas

Harnoncourt - Mozart‘s Prague

Symphony (Symphony No.38)-

particularly the first movement.

Dizzy Gillespie - Jordu

(Maybe) Bob Marley - No

Woman No Cry (Live Version

from the Lyceum Theatre).

16

17

Feature

Constitutional law in the world of Harry Potter

I t is often

said that

one of the

primary merits

of literature is

its ability,

through paro-

dy and satire,

to cogently

and relateably

embody com-

plex real world

problems.

This is evi-

dent, particu-

larly, in the

works of

Charles Dickens whose nov-

els, such as Oliver Twist,

Hard Time and David Copper-

field, can be seen as a cri-

tique of the norms in Victorian

society. Of modern authors,

this can probably only be said

of one other individual, anoth-

er writer with a penchant for

obscurely grandiloquent char-

acter names. This is Joanne

(JK) Rowling, the author of

the immensely successful

Harry Potter books. Although

ostensibly classified as

‗children‘s‘ literature, a disput-

able argument given the latter

books darker tone, one of the

many merits of the books is

Rowling‘s use of the

‗Wizarding World‘ to lampoon

21st British culture. This is no

less obvious than in the in-

stance of the wizarding gov-

ernmental body the ‗Ministry

of Magic‘. It is therefore the

aim of this article to consider

how this fictional organisation

functions, from which the

reader is welcome to draw

any conclusions as to Rowl-

ing‘s insights as to contempo-

rary governance.

The place to begin, then, is

with the founding of the British

Ministry of Magic (note other

countries have their own Min-

istries of Magic as well,

whose functioning is not dis-

cussed in great depth in the

books). In contrast to the Brit-

ish Parliament, which was

born of the monarch‘s need

for support by the nobility and

clergy to enact their policies,

the British Ministry of Magic

was the successor to the

‗Wizards‘

Council‘ which

had been the

governmental

body in Great

Britain before

this point

(although inter-

estingly not Ire-

land). What ex-

actly the Wiz-

ards‘ Council

involved has

not been speci-

fied by Rowl-

ing, although it

is very possible

it evolved into the Wizenga-

mot, on which see below. This

in itself is probably based up-

on the Witenagemot, which

was the pre-Norman Con-

quest equivalent of Parlia-

ment which had the power to

enact legislation and, alleged-

ly, the power to choose the

King. This may be relevant to

keep in mind when consider-

ing the issue of how the Min-

ister of Magic is chosen,

which Rowling does not ex-

plain, although seeing the

Witenagemot itself only, in

practice, anointed the chosen

successor, this may not shed

much light.

It will also be stated, seeing

the former section is evident

of Rowling being inspired by

the history of the British con-

18

Feature

stitutional system, how the

British Ministry of Magic re-

lates to the government of the

UK. From the name, it being a

‗ministry‘ with a ‗minister‘, it

could assumed that the Minis-

try is simply a department

within the UK (Muggle) Gov-

ernment. It is also worth not-

ing that the Ministry is found

in Whitehall, where all other

government ministries are

found.

However, this is not the case,

as it is by convention the pow-

er of the Prime Minister to

control the many departments

within the government. It is

imagined that, if the Prime

Minister were to try merge the

Ministry of Magic with the

Home Office or get rid of it

entirely he would assumed to

be under the influences of a

Confundus Charm (not that

he necessarily isn‘t already

anyway). This is further evi-

denced by the fact that the

Ministry of Magic has been

around longer than Cabinet

government, at least since

1629, (which does rather beg

the question as to whether the

latter was inspired by the for-

mer, and whether an early

Prime Minister was not a

squib, which would explain

how the portrait in the Prime

Minister‘s office came about).

The evidence is, from the

meetings of the Prime Minis-

ter and the Minister of Magic

in the books, that there is no

deference to the Prime Minis-

ter by the Minister of Magic

and the Minister rather sees

themselves as the superior. It

is also worth noting that the

monarch seems also to be

aware of the existence of the

Minister as well, although this

is unlikely a constitutionally

significant point. The Minister

is also, unlikely other Minis-

ters, not a MP or a Lord (as

all other cabinet ministers are)

and does not come to cabinet

meetings. There is also the

fact that, although the remit

for the cabinet is the entirety

of the UK that of the Minister

of Magic is confined to Great

Britain.

On a side note it should be

pointed out that Rowling has

overlooked the fact that differ-

ent Prime Ministers use differ-

ent offices in Downing Street,

meaning that the application

of permanent sticking charm

to the portrait was actually not

as wise a move as thought

(although the individual in the

painting could probably seek

out the Prime Minister through

the various other portraits in

Downing Street).

In contrast to the latter point,

Rowling put a great deal of

effort into the structure of the

Ministry itself. The Ministry is

made up of seven major de-

partments, although there are

others and new ones are

sometimes created. The

most noteworthy of the seven

are the Department of Magi-

cal Law Enforcement,

the Department of Magical

Accidents and Catastrophes,

the Department for the Regu-

lation and Control of Magical

Creatures and the Depart-

ment of Mysteries. The latter

is important due to the fact it

houses the ‗Death Room‘ the

placement of which might ex-

plain the reason for building

the Ministry where it is.

The Ministry‘s employees are

on the whole unelected, very

much akin to the civil service,

in contrast to the Minister for

Magic who is elected in some

way (see above). There are

also other positions that seem

to be created ad hoc to suit

the Minister, such as Advisor,

Senior Undersecretary and

Junior Assistant.

If the Minister be can said,

contrary to Montesqueu‘s

‗separation of powers‘ to be

both executive and legislator

in one then the Wizengamot

can said to constitute the

court. This is made up of fifty

members, although trials with

less presiding judges are pos-

sible, and seems to be by ap-

pointment of the Minister. The

Wizengamot also involves an

individual called the ‗Chief

Warlock‘ who is either the

head judge or, possibly, some

sort of benign executive figure

comparable to the Queen

(see the discussion of the

Wizard‘s Council above). The

trials, when they occur, are

fairly short with witnesses and

representation being allowed.

19

Feature

It is imagined that wizarding

trials are much easier, given

spells like priori incantatem

(from the latin ‗before spell‘

that is the previous spell

used) guilt can very easily be

conclusively proven. The de-

cision is taken by a majority.

The final very important point

to make about the Ministry is

its relations with the Ministries

of other countries. In the

books Rowling alludes to an

international organisation

known as the ‗International

Confederation of Wizards‘. As

this is a confederation as op-

posed to a federation the best

comparator for this is proba-

bly the UN in comparison for

this is to the EU. If this is the

case it is likely that each Min-

istry sends one representative

to the Confederation. The

aims of the organisation are

likely international co-

operation on issues such as

sporting events (such as the

Quidditch

World Cup and

the Triwizard

Tournament)

and interna-

tional defence

(against indi-

viduals such

as Voldermort

and Gellert

Grindlewald).

The organisa-

tion does also

seem to facili-

tate the sign-

ing of treaties

as evidenced by the Interna-

tional Statute of Wizarding

Secrecy 1689 which stated

that the entire wizarding world

shall be hidden from Muggle

view. The British ministry

does; however, seem to need

to bring legislation in to bring

about reforms, such as in the

case of Directives in the EU,

as the Statute was not

brought into effect until 1692.

The Confederation is led by

the Supreme Mugwump, who

seems to be appointed from

the various representatives

sent by each country, alt-

hough how this is done is not

explained.

To conclude, it must be point-

ed out that Rowling‘s

‗Ministry‘ was merely created

as window dressing to the

more important questions the

Potter books raise such as

morality and mortality. JK

Rowling, though blessed it

seems with an imagination

the scale of which has not

been seen since JRR Tolkein,

only created the Ministry to

serve this end. One must

therefore be careful, in con-

sidering her achievement, to

not use these to extrapolate

fantastical truths about the

workings of the British consti-

tution. If, however, the reader

approaches it with this fact in

mind, then it is perhaps possi-

ble that these arrangements

can offer up some modest

truths to any enquiring and

diligent Muggle who happens

to glance through this article.

By Aaron Mulford

20

Costa Concordia - Who is paying for this ?

21

Air & Maritime Law

Costa Concordia - Who is paying for this ?

G et on board,

get on board,

damn it! Many

of you probably will remem-

ber the telephone call from

the Coastguard to Schiettino,

in which the enraged captain

De Falco ordered captain

Schiettino to return to the

ship from his lifeboat after he

abandoned the Costa Con-

cordia while almost 100

people were still on board.

That order, spoken by De

Falco in coloured Italian

words, soon become a motto

in Italy, and then spread

through YouTube and

Facebook across the world.

―Italy wants to have steady

nerves because we have

already done the cabaret

route‖ the Corriere della Sera

columnist, Beppe Severgnini

said.

The 952 ft. length

Italian cruise ship Costa

Concordia was sailing off

Isola del Giglio, Tuscany on

13th January 2012 carrying

4,252 people on board,

having just left the harbour of

Civitavecchia towards

Savona, for a several - days

planned cruise across

Mediterranean sea.

At 9:45 PM, during a devia-

tion from the computer-

programmed route tooken by

captain Francesco Schiettino

for an unofficial ―touristic-

salute‖ to the local inhabit-

ants, the ship struck her port

side on a reef, causing a 70

metre tear in the ship‘s hull.

As soon as water started to

flood the engine rooms, the

ship lost her propulsive

power and commenced to

shift only by means of

inertia. Notwithstanding,

Schiettino decided not to

notify the nearby port

authorities of collision and

tried to resume the original

route – investigation later

revealed this decision to be

crucial in the disaster. The

SOS was only sent 40

minutes after the impact

just as the Concordia was

progressively increasing

the tilt starboard and running

aground in proximity to the

coast of the island. The

captain Schiettino ordered

the ship to be abandoned

and Coastguard vessels

were sent to the rescue, but

during the rescue operation

the captain left the ship

jumping into a lifeboat when

there were still almost

hundred persons on board.

Then, the phone call from the

captain De Falco to Schietti-

no occurred, in which the

latter was colourfully asked to

go on board in order to

supervise the rescue. He

refused: ―do you realize it’s

dark out here and we can’t

see anything?” Schiettino

defended. ―What do you want

to do? Do you want to go

home? It’s dark so you want

22

to go home?” De Falco replied

sarcastically.

During the six-hour evacuation

carried by the Coastguard

most passengers were brought

ashore, although 32 people

lost their lives in the Italian

waters – one of the two miss-

ing bodies were found a few

months ago during the refloat-

ing of the ship.

Today, two years after that

dreadful night, after the shouts

and panicking has ceased, it

remains a million dollar wreck-

business, capable of attracting

maritime industry giants which

had contracted what is ex-

pected to be the biggest

salvage operation ever at-

tempted. As of September

2013 the salvage has cost over

$800 million.

The trial in which Schiettino

faces charges of manslaugh-

ter, causing a maritime disaster

and abandoning ship is still

ongoing. However, on July

2013 five people were found

guilty of manslaughter, negli-

gence and shipwreck - the

company‘s crisis director, the

cabin service director and

three crew members - receiv-

ing sentences between one

and two years. The position of

the captain seems to be much

more severe, who will face up

to 20 years in prison if convict-

ed.

Soon after the tragedy

however, another legal battle

took place. Passengers are

seeking compensation at least

to ease the pains of a night-

mare that they will never

forget. In order to try to keep at

bay individual lawsuits Carnival

Cruise Lines – Costa Cruise‘s

holding company - offered

11,000 euro per passenger

compensation plus any extra

refunds after reaching an

agreement with some consum-

er groups coordinated by Astoi

Confindustria Viaggi. Neverthe-

less, Codacons association did

not sign the agreement,

regarding the proposed settle-

ment as ―insulting‖ and sug-

gesting not taking the offer.

Only around one third of

passengers accepted the deal.

Thus, the American law firm

Proner & Proner, Codacons

and Bern Law Firm filed a

class-action lawsuit together in

Miami (where Carnival group is

headquartered) considered as

the proper place of jurisdiction

and for sure a better legal

battleground. The team,

representing two Italian and

four American passengers,

stated to possess valid ele-

ment to avoid the exception of

―forum non convenies‖ - the

doctrine employed when the

court chosen by the plaintiff is

inconvenient for witnesses or

poses an undue hardship on

the defendants, who must

petition the court for an order

transferring the case to a more

convenient court. The claim,

for which the firms will bear all

expenses until the final verdict

in return for 40% contingency

fee, accounted for $10 million

damage and $450 million

punitive damages – in accord-

ance with the Italian civil code.

On the other hand, another

claim was filed in the country of

the disaster, whereby the

lawyer Giulia Bongiorno

gathered about 50 survivors for

a class-action lawsuit seeking

about $160,000 each, including

material damages (physical

damages, lost properties) but

also moral ones (such as fear

and terror suffered). However

those are not the only class

actions commenced and many

others survivors joined to them.

Indeed, there will be a

lot of work to do for the Carni-

val and Costa Cruise lawyers

in the next few years if they

want to make the passengers

regret not having accepted the

11,000-euro offer.

Lorenzo Macchi

23

Do you

want to write

for the next edition

of

? We are always looking for new writers

to submit to the magazine.

If you have a great article idea, or a

willingness to write for the magazine,

please email us at

lawmag@soton.ac.uk

24

USLS

Christmas Law Ball

A lthough it seems like

quite some time ago,

the University of

Southampton Law Society

Christmas Ball no doubt glows

fondly in the memories of all

the those who attended. Very

generously sponsored by

Baker & McKenzie, the event

had a truly classy air about it.

The ‗Tinsel Town‘ Hollywood

theme gave the occasion the

starry feeling Law Society

Members have become

accustomed to with all our

Christmas Balls. With an

trophy or two and Jennifer

Lawrence it could have been

the Oscars. The Grand

Harbour Hotel, a venue for the

first time, fitted the

specification perfectly. Glitter

balls span all over,

transforming the location into a

sparkling zone of festivity, with

beautifully guests completing

the scene.

Magicians glided between

tables dazzling onlookers as

three luxurious courses were

served. After everyone was full

of food and sufficiently

liberalized by beverages

provided in ice buckets and by

serving staff, a mass exodus to

the dance floor took place.

Cheesy songs played and

lawyers swayed as the night

went on. A raucous after party

took place at Oceana, leaving

many a bleary eye the next

day.

Really, everything came

together perfectly. This has to

be put down to the fantastic

spirits of all our members and

their guests. Organisation of

the event by Mark Primrose

(me-winky face) and the Great

Colin Colas cannot be

forgotten though.

By Mark Primrose

25

I am writing this article with

just under a fortnight to go

until our 12th annual

Banners sports tournament,

which I have been organising

since November. Competitors

can take part in 6-a-side

football, rugby 7s or netball (7-

a-side).

For those who are not aware,

the tournament is held in

memory of a former law

student here, Arijit Banerjee.

Having read up on the files

handed over by previous

Sports Representative‘s, I read

that Arijit had been suffering

from depression and low self-

esteem. I therefore got in

touch with a mental health

charity (SANE) to offer to

fundraise in aid of the charity,

which they gladly accepted.

SANE has high-profile support

from the likes of Bradley Walsh

and Ruby Wax. The Society

will not be taking any profits

from the event – the surplus

from sponsorship and team

entry will be donated solely to

the charity.

Furthermore, I have

got in touch with RAG

(Raise and Give) who

are going to be offering

volunteers to accept donations

on the day.

Preparations have been

extensive – from booking Wide

Lane‘s Sports Grounds, to

hiring caterers, to making sure

that qualified first-aiders and a

qualified rugby referee are

present, to sorting out

equipment and engraved

trophies and medals for

winners, to ensuring that the

event complies with health and

safety regulations and having

risk assessments approved for

the purposes of insurance and

charity fundraising.

My approach to inviting firms

to sponsor or compete in the

event was to target a number

of firms whom we had close

connections with, rather than

sending out blanket initiations.

Fortunately, we have accrued

joint sponsorship from Norton

Rose Fulbright and Bond

Dickinson. Additionally, both

firms will be attending on the

day and competing in football

and netball. The other firm

taking part on the day is Blake

Lapthorn – also entering teams

in football and netball.

Competing against the firms

will be some of our alumni –

there are two football teams of

Southampton ‗Old boys‘ – one

team of which Jack Steer,

beginning pupillage later this

year, will be competing in and

current law and non-law

students. A broad range of

teams will be competing from

outside of law, including

University and halls teams, as

well as those from history,

languages, English,

psychology, medicine and the

African Caribbean Society.

Of course, our Law Society‘s

teams will be present and

favourites for their respective

titles in football and netball –

there was not enough demand

for a law rugby team. LAW

Galaxy have two teams

entered; as do the netballers

(Hale‘s Angels and Denning‘s

Devils).

By Jonathan Patterson

Law Society Sports

Law Sports - Banners 2014

USLS

26