Category: Law & Politics

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Independent Learning Assignment Law & Politics Social Sciences

Pot-Luck Politicians, A Parliamentary Chamber from Sortition

This essay was written by upper-sixth former Tom Welsh, and a finalist for the 2020 Independent Learning Assignment. The following provides a short abstract to the full essay, which can be found at the bottom.

Estimated read time of abstract: 2 minutes
Estimated read time of essay: 1 hour

Sortition is the random selection of individuals, and in this paper I sought to understand its political application in legislatures before providing a potential application in the United Kingdom via a third House of Parliament. The motive being sortition’s inherent equality and true representativeness. 

In order to do so, an investigation of sortition’s use in history was made, before its role in political theory was considered. I then briefly looked at its current application in both juries and citizens’ assemblies, before considering sortition’s hypothetical applications and existing use outside of the United Kingdom. 

Once the theory was covered, I then took to explaining the functioning of the existing UK government before looking at current UK political participation in both formal methods (elections and referenda) and informal (social movements and pressure groups). 

Having discussing the underlying theory, and the use-case it was being applied to, a substantial portion of my paper attempted to outline a comprehensive description of why I believe sortition’s best application would be as an addition to the existing Parliament given the important role that both the existing Houses of Parliament play. That is not to say that I felt the chamber from sortition would have a small role to play – far from it. 

I then ended the paper with an overview of some of the potential issues that such an implementation might entail, with an attempt also being made to explain how they might be dealt with and why if they cannot, on balance, that is of little concern in any case given the many positives associated with sortition. Furthermore, if you have an interest in either Plato or Jean-Jacques Rousseau, the absolute ending of the paper comes in the form of a synthesis of both, achievable, in my opinion, through sortition. 

If I gone some way to perhaps intriguing you about my, perhaps controversial, proposition then do consider giving my ILA a read. In fact, even if I haven’t – undoubtedly it is not easy in a short abstract to fully convey the true nature of a piece of work – maybe consider giving it a read in any case. A word of warning though, perhaps read the paper one chapter at a time, as I apologise it is not exactly short. Nonetheless, if you do choose to read the full work, thank you. Yet more importantly, I hope I cause you, even if you disagree with my conclusions, to reconsider your own political views – indeed if you don’t already have any, that is fine too! 

To view Tom’s full article, follow this link below.

“Pot-Luck Politicians A Parliamentary Chamber from Sortition” by Tom Welsh
Categories
Law & Politics Social Sciences

How far should the Supreme Court be bound by its previous decisions on what the law is?

This article was the 2nd Prize winner of the Lord Toulson Essay Prize in Law competition, written by upper-sixth former Tom Welsh.

Estimated read time: 6 minutes

‘How far, if at all, should the Supreme Court be bound by its own previous decisions on what the law is?’

In the UK the principle of ‘stare decisis’ is key to our legal system. As the birthplace of common law, huge weight is placed upon judgements as they form precedent which sets the future direction of the law. Precedent is also firmly rooted in our hierarchy of courts with the Supreme Court the only court to be capable of overturning it. This is vitally important to the development of the law because, as the final court of appeal, often it must decide whether to continue the existing tradition of law or to flag it as outdated and/or inequitable when applied to the case before them and change it. It should though be recognised that as the final court of appeal for Scotland, a country with a hybrid legal system, the Supreme Court must also occasionally consider points from civil law too.

From the turn of the 20th Century until 1966 the predecessor of the Supreme Court, the House of Lords, did not have the ability to overturn precedent it had previously set. However the Practice Statement was then issued in order to provide for the adaption of English law to meet changing social conditions. This was a broader aim of Harold Wilson’s government, shown also through their widespread liberal reforming legislation. In effect, they wished for both the statutory and case law to be brought in line with their ‘civilised society’ and the associated moral values.

The statement also served as a recognition of various competing aims within the law: predictability through simplicity; its proper development, and the desire for fair outcomes. Essentially admitting that it may not be possible to serve all three in every case it thus pithily struck at the heart of the difficulties the Supreme Court faces.

In the forty years following its introduction, the power to overturn previous precedent was used sparingly. The crucial dilemma being when was it to be deemed that the law was outdated and that the precedent needed changing. Many judges, with their tendency towards being cautious and conservative, would posit that this need for reform of the law must entirely outweigh the benefit of sticking to clearly defined principles. This does however lead to cases where the Supreme Court may believe an outcome to be unfair, but that the judgement should not be overturned due to the damaging effect on core principles of law.

Moving to the question of why overturning of precedent should be avoided. The law in its origins, exists in order to benefit those subject to it. In order to achieve this it must be clear to people what is and what is not legal.

This has obvious merits. A product of the modern legal system is that there are many definites in the eyes of the law. If one person kills another they are liable to be charged with and tried for murder. Even young children are aware that some actions have legal consequences. It is not just criminal law that this certainty applies to though. Within contract law there are rules and principles that can be taken for granted. In fact, it is entirely logical to suggest that the modern economy is predicated on the Rule of Law. Predictability of the law is of huge benefit to society. It must however be remembered though that the law only reached its current state incrementally over time; if we wish it to evolve further it must change to do so.

In addition, as new technology emerges the law must adapt. It often falls to case law to determine what the law will be in cases lacking relevant legislation. Looking strictly at past precedent, which by nature is based on past fact, would make this task hard to achieve.

Another benefit of precedent is its capability of minimising judicial tyranny. Humans lack moral and mental perfection and thus it is of benefit that modern judges must outline a ‘ratio decidendi’ for a decision; it prevents arbitrariness. Further there can be renegade judges who propose radical legal reform through judgements in line with their opinion rather than relevant prior precedent. For the Supreme Court to have a last say on things is crucial in preventing power being too centralised on individuals. Not in the least because it sits in larger panels of judges.

The many apparent benefits of precedent lead one to the conclusion that in the main it is a good thing. There must, in my view, exist a strong reason to change the legal precedent if it is to be done. The Supreme Court agrees, with the original wording of the Practice Statement suggesting that precedent should only be overturned ‘when it appears right to do so’.

One strong argument to be made in favour of overturning precedent is that the Supreme Court should be capable of rectifying its own recent mistakes. The law frequently assumes that the existing precedent is infallible, and whilst this seems more reasonable for long-standing principles that laid the foundations, recent decisions cannot be argued to be so. If the Supreme Court believes it made a mistake, it should be dealt with now before it plagues centuries of subsequent cases due to binding precedent.

Further, if the law is to work for the people it cannot exist in a vacuum. Opinions on human behaviour change, and social and cultural norms frequently expire. There exist many cases where miscarriages of justice occurred resulting from views we hold to be incompatible with modern life. A counterargument to be made is that moral questions belong in the realm of politics and its elected representatives and should not be addressed by case law but by legislation. This view is, in my opinion, too doggedly apologetic for previous custom to hold much weight. This is especially true since it is not the role of the Supreme Court but the Law Commission to actively review the state of the law and suggest improvement through legislation. The Supreme Court can only address an issue of law as and when a relevant case comes before it; as such it has a relatively low impact on the changing of controversial issues in the law.

There can also be seismic events that change the legal groundwork. For example, the long-established supremacy of EU law is soon to be abolished and consequently the Supreme Court will face cases were its previous rulings will be incompatible with the cases before it. The inflexibility of a final court of appeal being strictly bound by its own decisions would severely hamper that second aim of the law, namely its proper development.

In conclusion then, one could make a claim that the legal orthodoxy should always be maintained in order to safeguard the integrity of the principles of the common law. Under such a scenario the Supreme Court could, as it already does in certain situations, merely highlight areas of the law that the government should re-consider in legislation.

This, I believe, would be the wrong course of action though. Partially due to its castrating of the development of the common law but also due to the unintended consequences such as increased legislative slowdown and issues regarding statutory interpretation. Additionally, when counsel draft legal argument, the exception to precedent would become crucially important. What might happen upon the reinstatement of prior precedent from the Supreme Court being binding on itself is that the court would frequently find that the particulars of a given case are an exception to the rule of a precedent. This would lead to a state where, rather than consolidating and clarifying the principles underpinning the common law, there would exist an intricate web of exceptions to rules.

It is worth noting at this point that when the Supreme Court was founded from the House of Lords it adopted the Practice Statement because it believed the right to overturn its own precedent was essential to its ability to function as the court of final appeal.

Where I believe the fine line exists that balances the aims of the common law in perfect harmony is for the Supreme Court to be allowed to overturn its own previous precedent only when it believes it was previously incorrect to such an extent that: not only is it the wrong stance for the common law to take on an issue; but that it was, all importantly, unfair retrospectively and also unfair if it is applied to the case before the court. English law has always found ways to improve itself, often by recognising its own pitfalls and providing solutions; the emergence of equity for example. And just like the motive behind equity, the issue of a final court of appeal being able to overturn its own previous decisions on what the law is revolves upon avoiding unnecessary inflexibility. Law should be assessed by the ends it achieves, and clear and principled law, whilst elegant, is only good law to the extent that it leads to justice in the majority of cases, not solely by virtue of its nature.

Categories
Arts & Humanities History Law & Politics Social Sciences

Irving vs Lipstadt- The Precedent on History

This article was written by sixth-former Omeet Atara.

Estimated read time: 3 minutes

In the case of Irving vs Penguin Books Ltd, the law was embroiled in a difficult case, which forced them to decide on the validity of a historical claim. Whilst it was labelled a libel case, this was a fundamental question about history. Experts included Richard J Evans were called to the stand to work as witnesses throughout the trial. The significance of this trial is not in the actual arguments, but the result delivered by the judge and historical judgements made.  

History is a complex subject and is about interpreting and understanding the past. Historians use a variety of primary and secondary sources to, put colloquially “work out what happened”. By using these sources, they can justify arguments and theories about past actions. However, historians do disagree and in this case, the argument was over the Holocaust. David Irving brought a British libel suit against Deborah Lipstadt and her publishers Penguin Books for claiming he was a Holocaust denier her book, Denying the Holocaust. Significantly, the case was brought in Britain rather than America, where Lipstadt was based; in British libel suit, the defendant holds the burden of proof whilst in America, it is the other way around. Hence, Lipstadt was forced to legally and historically show her claim about Irving was true. The mixing of historical information and legal complexities caused this trial to gain widespread media coverage within historical circles but also the academic media.  

The case itself was a bench trial and both sides hired high-quality reputable lawyers in what was not just a legal case but a defining moment in academic history. The lawyers for Lipstadt spent significant periods, with expert historians, trawling through the works of Irving. They were ultimately forced to prove that Irving was historically incorrect, and they did this by reading the footnotes. They would search through each of his sources and ensure that they represented the view Irving took. What they found was a group of misused and distorted historical sources. They were able to argue the comments by Deborah Lipstadt to be true. Therefore, this proof made the libel claim impossible to justify- it was not libel but academic truth. 

However, they also asked key historians like Richard J Evans to look at the work of Lipstadt and Irving to try and gain his expert opinion. This brings in the idea of historiography; which is simply the study of written history. He writes the book In Defence of History, which explores the value of history and historiography in the modern age. This has been a key debate at university and in academic history over how we should use this skill. As the expert witness, he concluded that Irving had been factually and intellectually incorrect in denying the Holocaust. He compared the reasonings and the factual evidence provided to make this judgement. He presented written and oral testimony to the court; he was also subject to a cross examination. This formed the basis of the Lipstadt defence which can be described as the justification defence. Rather than use legal escapism, she simply ensured her actions were shown to be fair and justified. 

Irving and his lawyers began with the advantage due to the burden of proof. However, the irreconciled actions of falsely manipulating sources inevitably caused significant difficulties when he came to argue his side. Ultimately, his defence was doomed because there was no libel case- what Lipstadt had said was blatantly true now that the sources had been explored.  

The judge delivered a crushing 397-page verdict in which he ruled in favour of Lipstadt and gave a damning report of Irving. They concluded him to be a holocaust denier, disappointing historian and the defence was entirely correct. This was a judgment that has set an important legal and historical precedent for the future.  

The law and history interacted in what was a case of incredible interest and importance. David Irving was proven to factually incorrect and it established the value of evidence in historical law. Despite the claim from Irving about the personal, economic and academic hardship he suffered the truth and history remained prioritised. The competition between historians over finding the truth makes it an interesting discipline. Regardless of the topic or personalities involved the history and evidence should come first rather than persona and economic disputes. Academic history which has a reliance upon evidence was strengthened once again. 

Further to this, the law was integrated with historical debate. Legally, the precedent was set for the value of evidence and removed the potential for other historical libel cases. This is a topic with no legislative agenda and hence the civil case uses precedent entirely. Hence, this ruling will be significant for years to come. The law also proved the strength of evidence no in academia but also in legal cases.  

History and law are both academic and complex subjects however and have been discussed and debate together in this example. The intertwining of topics has caused civil law to address historical issues; it is impressive to see how the law controlled and acted upon these issues. The Holocaust was a tragedy and to be debating abut its existence is disgusting- that is not the significant thought here. It is that the law sets a precedent for historical works on evidence, not personality.  

Categories
Features Law & Politics Social Sciences

Should legal disputes be decided by artificial, rather than human means?

Winner of the Trinity College Robert Walker Essay Prize, written by sixth-former George Hargreaves.

Estimated read time: 7 minutes

Artificial intelligence (AI) has the potential to resolve some legal disputes more accurately, and with greater consistency, than humans are able to. Practical advantages, such as speed and cost of resolution, have already led to its limited adoption in some countries. This is likely to increase as AI continues to evolve rapidly, both through development of the algorithms with which it is programmed and through machine learning. But it is unlikely at any point that AI will be able to update fast enough to reflect ever-changing and infinitely complex real world circumstances, or to master the (also ever-changing) linguistic subtlety upon which much legal argument is based. Many disputes involve unique circumstances which cannot be fully encapsulated by pre-set algorithms: human oversight will be necessary. Furthermore, AI’s inherent lack of transparency means that it will fail to meet the principle of open justice, except in limited circumstances: both users and subjects of AI may not understand the decisions it makes. This would risk society losing confidence in its legal system. While some disputes should be determined by AI, even these must be subject to human checks. In many cases, however, AI’s best use will be as an expert advisor (or “co-bot”, perhaps) for human arbitrators. Society is likely to consider it morally unacceptable for life-changing decisions (where the death penalty could be imposed, for example) to be made by a “robot judge”. Ultimately, law evolves to reflect changes in society and life itself; an inanimate entity such as AI will be incapable of comprehending the infinite complexity of life in the conceivable future. It would thus be mistaken to devolve all power to AI for deciding legal disputes.

Practicing lawyers have made increasing use of AI over the last decade. A survey of the websites of the UK’s 12 largest solicitors[1] indicates that this will continue, albeit with AI typically being used for back office functions and organising and categorising “Big Data” sources. It is often used for the retrieval of precedents for use in upcoming cases, for example, or for reviewing contracts. AI can perform many such tasks far more quickly, accurately and comprehensively than human solicitors would find possible. While programming and other costs are not insignificant, these solicitors all note that AI is allowing them to deploy more staff in areas where greater specialist skills are required, while automating more routine tasks. While AI has been contributing to dispute resolution for some years, it is now starting to come into use in the decision making process itself, having performed well in a series of robot v human contests. In 2018, for example, a LawGeex AI system achieving 94% accuracy in reviewing a set of non-disclosure agreements, compared with 85% by a group of legal experts in that field. Even more strikingly, AI took 26 seconds to review each agreement, while the humans required 51 minutes on average[2]. Cambridge-based Case Cruncher Alpha also had notable success in such competitions. In China, there are now over 100 robots in use in courts[3] while they have also been introduced in countries as diverse as Colombia[4] and Estonia[5]. However, their use remains limited to that of an advisor in high-volume, low-value cases, with a human judge in attendance making any final decision. Nevertheless, AI’s use here has clear practical benefits and may help improve the consistency of penalties or sentences being given. The UK too has recognised these advantages, with the Civil Justice Council recommending as long ago as 2015 the introduction of Her Majesty’s Online Court to resolve some disputes where the value is under £25,000[6]. However, the implementation of this has been delayed until at least 2023[7], partly due to the technology available remaining inadequate. This highlights the difficulties that the sheer complexity and holistic nature of many legal disputes poses AI.

The current usage of AI is limited to relatively simple and clearly defined situations, where organising known facts, which may not in themselves be disputed (in some divorces, for example) is what is required. There are many examples of “bots” being used outside the court system too – the donotpay.com site being one of the most well-known. Originally designed to help the public to obtain refunds for parking tickets wrongfully issued, donotpay.com has now extended its scope to help receive compensation where it is due from airlines, or to force companies to cancel subscription services when they seem reluctant to do so.

AI has some clear practical benefits which are leading to its increased adoption. While its capabilities are insufficient to deal with most decision-making tasks at present, the pace of technological change (estimated in Intel co-founder Gordon Moore’s “Moore’s Law” as a doubling of processing power every 2 years) should not be underestimated. It is clear that these capabilities will advance to a position where it could be used far more widely in future – at least theoretically.

However, there are overwhelming arguments against allowing AI alone to decide many legal disputes. These arguments may be classified broadly as practical, legal and moral.

Practically, an important difficulty is that the world is constantly evolving in unexpected ways and AI will itself need time to absorb and process new laws which may themselves be passed rapidly. In response to the coronavirus pandemic, a new UK Coronavirus Act was swiftly drawn up in early March and given royal assent on 25th March 2020. This will potentially lead to many legal disputes for which there are no precedents, and to as yet unforeseen consequences. Both programmers updating AI logarithms and machine learning will struggle to incorporate this new information in the short term. Similarly, programmers will more generally find it difficult to ensure that changes made to an AI system are not having unintended consequences on the algorithms which are already in place – particularly as the majority of programmers will not be lawyers. Neither will they be perfect individuals, so there is significant potential for their conscious or unconscious biases to be incorporated in an AI system (just as there are in any human system). Large and complex AI systems could also well be open to cyberattacks which have already led to major financial losses for many organisations; any such malicious attack on the legal infrastructure (possibly not identified for many years afterwards) could have extremely damaging consequences on the legal system.

The philosopher John Searle’s Chinese Room Argument[8] drew a distinction between the syntax and the semantics of language and argued that AI could never fully replicate human understanding. While AI may recognise words in themselves, it will always struggle to understand, or even recognise, the multiple linguistic subtleties upon which many legal disputes turn. In essence, many disputes are too complex to be simplified in digital format. If AI cannot understand arguments in their human form (instead merely simulating this), it is unlikely to be able to administer justice fairly to the satisfaction of the humans who need it. An analogy with the recent introduction of the Video Assistant Referee (VAR) in football is interesting as, even when rules were relatively simple and well understood, the attempt to implement them, using artificial means, has been widely deemed unsatisfactory and inconsistent by players and fans alike. VAR, applied strictly, lacks any capacity for discretion.

This complexity, and AI’s inherent lack of transparency, are at the heart of major counterarguments to its use in the legal system. Centrally, the principle of open justice – whereby the law should be clearly comprehensible to all, with decisions clearly communicated – is unlikely to be satisfied by AI, except in limited circumstances. Re and Solow-Niederman have identified “a range of concerns relating to [AI’s] tendency to make the legal system more incomprehensible, data-based, alienating, and disillusioning”[9]. Were this to be the case, using AI alone would in many cases very likely lead to society losing confidence in legal systems which it has used for centuries to provide an agreed framework for it to operate within. Another academic, Sourdin[10], notes “questions such as who makes the decision, and who possesses the legal authority to make such a decision. Is it the computer programmer, the policymaker, the human decision-maker or the computer or automated system itself” – these cannot easily be answered and raise further crucial problems, such as how and to whom appeals might be made.

Re and Solow-Niederman ask “can a prearranged decision procedure really incorporate an idea like mercy or develop fact-sensitive balancing of mitigation factors in a criminal case?” The principle of equitable justice might mean a recently unemployed husband stealing medicine for his sick wife could be treated more leniently than a drug dealer stealing drugs to sell on the street, when it came to a human judge passing sentence. Whereas AI, certainly for the foreseeable future, would not be capable of taking every extenuating circumstance into account. Particularly as every case will have unique surrounding circumstances; and the more complex the case the more complex those circumstances are likely to be.

But, even if developments in AI made it possible in the distant future to overcome all of the practical and legal issues outlined, there are critical moral problems which will remain impossible to solve.

The UK’s legal system (and that of most other countries’) has had human interaction woven into it ever since it was created, or naturally evolved from primitive, informal justice methods. This not only enables a judge to exercise discretion, or mercy, but it is also considered to be a fundamental right for litigants to be able to make their case personally – and to fell that they are being heard and understood. Similarly, a jury decision making process places much emphasis on human interaction and argument. If AI displaced all such human interaction, litigants would be likely over time to become disaffected, eventually losing faith in the system of justice itself.

Where very serious cases were involved, with very serious potential consequences (in some countries, the death penalty for example) it will be considered morally unacceptable for life-changing decisions to be made by a “robot judge”. It is inconceivable that the degree of technological development that would be necessary to overcome these reservations is within human reach.

Finally, privacy issues, both for individuals and for countries when national security matters might be involved, further complicate the landscape for AI. The extent to which these are concerning depends partly on political ideology: in China today, for example, all citizens are subject to “social scoring” based on their internet presence – with low scores affecting individuals’ rights to have a passport or to get a loan. This would be considered too intrusive in many other countries. In any event, AI may find itself denied information which it had in previous instances needed to make a fair decision. The withholding of information for reasons of privacy will continue to be seen as a necessary human “judgement call” – albeit clearly capable itself of abuse. This is an area where politics and law meet. The extent to which AI will improve in the future should not be underestimated. This will increase its use, which is currently limited to relatively routine, standardised tasks. Its ability to assimilate and organise data is already vastly superior to any human’s. However, it will always struggle to understand the linguistic complexity which is central to much legal argument, or the complexity of life itself, which is also often central to such argument. Without humans being part of legal dispute resolution, it is fundamentally impossible for the principles of open justice or of discretion to be met. Lower cost and greater speed will tempt rule makers, but AI’s most appropriate use is as an expert advisor to human judges.

[1] https://www.linklaters.com/en/insights/online-services/artificial-intelligence

[2]https://www.cicerosoftware.com/en/blog-robot-lawyers-lawyers-compete/

[3]https://www.worldgovernmentsummit.org/observer/articles/could-an-ai-ever-replace-a-judge-in-court

[4] https://www.garrigues.com/en_GB/new/artificial-intelligence-international-arbitration-legal-prediction-awards-issued-robots

[5] https://www.lexisnexis.ca/en-ca/ihc/2019-06/from-estonian-ai-judges-to-robot-mediators-in-canada-uk.page

[6] https://www.judiciary.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf

[7] https://www.lexology.com/library/detail.aspx?g=10651420-b002-4626-8a01-4c88411be9ff

[8] In “Minds, Brains, and Programs” (1980)

[9] “Developing Artificially Intelligent Justice”, Stanford Technology Law Review 242 (2019)

[10] “Judge v Robot?” AI and Judicial Decision-Making”, UNSW Law Journal vol 41