16 and 46: Preserving, Protecting and Defending

Aidan Flynn, Senior Lecturer in the Law Department, looks at some similarities and differences between the office of US President and the office of UK Prime Minister

New President

Joe Biden, of the Democratic Party, is now the 46th President.  At his inauguration ceremony he took the oath that is set out in the Constitution of the USA 1789, “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”  In his inauguration speech, President Biden quoted the 16th President, Abraham Lincoln (1861 to 1865), of the Republican Party, “in another January on New Year’s Day in 1863 Abraham Lincoln signed the Emancipation Proclamation.  When he put pen to paper the president said, and I quote, ‘if my name ever goes down in history, it’ll be for this act, and my whole soul is in it.’”  Mr Lincoln led his country in very difficult times with the years of the American Civil War coinciding with his period in office.  Referring to the present day, President Biden continued “here we stand just days after a riotous mob thought they could use violence to silence the will of the people, to stop the work of our democracy, to drive us from this sacred ground.  It did not happen, it will never happen, not today, not tomorrow, not ever.  Not ever.”  Like Lincoln, President Biden has a very difficult path in front of him, he faces a “pile of crises.”  Like ‘Honest Abe’ he is confronted by a series of stark challenges.  His long years of experience as an elected representative will stand him in good stead as he fulfils his oath to preserve, protect and defend the Constitution.

Head of what?

In the USA the President is both the head of state and head of government of the United States of America.  In the United Kingdom these roles are separate, the monarch being head of state and the Prime Minister being head of government.  Graubard states that “simplicity, the theme of the nineteenth-century American republic, made the president the first citizen amongst equals, but these practices gave way in the twentieth century to a new kind of presidential office that vaunted itself on its simplicity, but showed unmistakable signs of having assumed the trappings traditionally bestowed on European heads of state.”  The British monarchy is a constitutional monarchy, this means that while the Queen is head of state it is the UK Parliament that makes legislation.  The website of the monarchy tells readers that the Queen “undertakes constitutional and representational duties which have developed over one thousand years of history.”  The monarch has no political or executive role, it is the Prime Minister who is “the most important politician in the UK.”

Election

Presidential elections in the USA take place every four years and are held in November.  Every state in the USA has a different number of what are known as electoral college members.  The number of members per state is apportioned according to its population and representation in Congress.  The candidate who wins the most votes in a state controls all that state’s electoral college members.  The electoral college members cast the votes for President and the votes are formally counted at a joint session of Congress in January.  The figure needed to win is 270 and in 2020 Joe Biden received 306 to Donald Trump’s 232.  Sometimes the winning candidate will not have also won the biggest number of votes in the national popular vote.  For example, in November 2000, in the national popular vote Al Gore received over 540,000 more votes than George W. Bush.  What is crucial is to win in the electoral college process and George W. Bush became President in January 2001 having done that, receiving 271 votes to Mr Gore’s 266. 

In the UK the Prime Minister is appointed by the monarch either after a general election has taken place or when a sitting Prime Minister has departed the office at some point during the term of Parliament.  By convention, the Prime Minister must be an MP, that is a member of the House of Commons.  This contrasts with the position in the USA where the President is not a sitting member of either house of the legislature.

When the result of a general election gives one political party a clear overall majority in the House of Commons, the position is straightforward.  The leader of that party will, as in December 2019, be invited by the monarch to become Prime Minister and form the government.  When there is a hung Parliament, in which no one party has an overall majority, the position may not be as straightforward.  Le Sueur comments that “there is academic disagreement about the extent to which the monarch has discretion” in relation to a decision about who to appoint should the party leaders in the Commons be struggling to strike any kind of deal on government formation.

Timeline when entering office

In the USA there is always a gap of time between November’s election and the moment when a new President assumes office.  The 20th Amendment, to the Constitution of the USA, states that “the terms of the President and Vice President shall end at noon on the 20th day of January.”  By contrast, in the UK the timeline between a general election and the appointment of the new Prime Minister is usually a matter of hours rather than weeks.  This is illustrated by the transfer of power that occurred in May 1997 when the party led by the incumbent Prime Minister, John Major, was defeated in a general election.  The general election was held on the 1st of May and John Major left 10 Downing Street on the 2nd of May.  Having first travelled to Buckingham Palace and been appointed by the Queen as new Prime Minister, Tony Blair arrived in 10 Downing Street in the early afternoon, Mr Major having “walked out only moments before I had come in.”   If a general election produces a hung Parliament, the timeline will be different.  For example, in 2010 the general election took place on the 6th of May, but it was on the 11th of May that the incumbent, Gordon Brown, resigned and was succeeded by David Cameron.  Mr Brown recalls that once it was clear that the election result was a hung Parliament, “the senior civil servants at the cabinet office, primed for this situation and armed with their Cabinet Manual, now moved into action to host what they knew would follow – inter-party negotiations.”  He resigned five days after the election when he formed the view that those negotiations were not going to yield an outcome that would see his party remain in government.

Cabinet

As head of government in the UK, the Prime Minister leads the executive, one of the three branches of government, the other branches being the legislature and the judiciary.  Government ministers are formally appointed by the monarch, but it is the Prime Minister who makes the decisions on who becomes a minister.  Similarly, it is the Prime Minister who has the power to make a decision as to when a minister must leave the government.  It is a convention that a minister must be a member of one of the houses of Parliament, most ministers are members of the House of Commons.  Senior ministers sit in the Cabinet, a body that holds regular meetings chaired by the Prime Minister.  Most of these senior ministers head up a government department, examples being the Secretary of State for Education, the Secretary of State for Transport.  Barnett outlines how it is the Cabinet that represents “the nucleus of government” adding that it is “the Cabinet as a whole which, at least in theoretical terms, formulates, initiates and implements the policy of the government.”  In the USA the Cabinet is also an important aspect of the executive branch of government.  The Cabinet is made up of the fifteen heads of the executive departments.  They are appointed by the President and confirmed by the Senate.

The requirement for there to be confirmation hearings, in the upper house of Congress, has no equivalent in the UK.  Persons picked by the Prime Minister to serve in Cabinet do not face confirmation hearings in Parliament, the legislature of the UK.  In the USA members of the Cabinet will not also be serving in either house of Congress, unlike the convention in the UK that a Cabinet minister must be a sitting member of the legislature.  This is a notable difference between the systems of the two countries, it means that in the UK members of the Cabinet have a role in two of the three branches of government.  They are simultaneously members of the executive and legislative branches whereas in the USA Cabinet ministers only serve in the executive branch.  Another difference in the two systems relates to the Attorney General.  In the USA the Attorney General is a member of the Cabinet and is head of the Justice Department.  In the UK the Attorney General is a member of the government and attends Cabinet meetings but she is not a member of the Cabinet.

Length of term

In the USA the President is, under the 22nd Amendment to the Constitution, limited to two four-year terms.  The 22nd Amendment was ratified in 1951.  Franklin Delano Roosevelt is the only President to have served more than two terms, being elected four times and serving from 1932 until his death in 1945.  It is possible for a President to remain in office for ten years.  This applies in specific circumstances and can be examined by looking at the presidency of Lyndon Johnson.  He was Vice President in November 1963 when President John Kennedy, who had been inaugurated in January 1961, was assassinated.  Mr Johnson was sworn in as President on the day that the assassination occurred and then won the November 1964 presidential election.  He could have stood as a candidate again in 1968 but opted not to do so.  However, had the assassination of Mr Kennedy taken place at a point during the first two years of his term, Mr Johnson would not have been eligible to enter the 1968 contest.     

In the UK there is no limit on the length of time that someone can serve as Prime Minister.  Since 1940, there have been three Prime Ministers who held office for longer than eight years, Winston Churchill (1940 to 1945 and 1951 to 1955), Margaret Thatcher (1979 to 1990) and Tony Blair (1997 to 2007).

Departure

A president’s time in office will end when he has completed two terms or if he is defeated in the election that occurs at the end of the first term.  Of the last seven presidents, four left office after eight years, these are Reagan (1989), Clinton (2001), GW Bush (43)(2009), and Obama (2017).  The other three, who were unsuccessful candidates when they campaigned for a second term, are Carter (1980), GHW Bush (41)(1992), and Trump (2020).  Eight presidents have died in office, four of whom were assassinated, Abraham Lincoln (1865), James Garfield (1881), William McKinley (1901) and John Kennedy (1963).

The 25th Amendment to the Constitution, adopted in 1967, sets out some circumstances in which it is possible for the Vice President to take over the powers and duties of the President, and operate in the capacity of Acting President.  This Amendment is relevant where the President is “unable to discharge the powers and duties of his office.”  In January 2021 Vice President Mike Pence rejected calls for him to invoke provisions of the 25th Amendment in relation to President Donald Trump.

Impeachment of a President is covered by Article 2, Section 4 of the Constitution.  It provides for removal from office on “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  In 1974 Richard Nixon resigned before he could be impeached, he is the only president to ever resign the office.  Andrew Johnson (1868) and Bill Clinton (1998) were both impeached by the House of Representatives but acquitted after a trial in the Senate.  In December 2019 Donald Trump became the third president to be impeached when the House of Representatives voted to adopt articles of impeachment. Like Johnson and Clinton, he was acquitted after a trial in the Senate.  The Senate voted to acquit him 52-48 on charges of abuse of power and 53-47 on obstruction of Congress.  On the 13th of January 2021 President Trump became the first president to be impeached twice  when the House of Representatives voted to adopt articles of impeachment.

Seven prime ministers have died in office, one of whom was assassinated, Spencer Perceval (1812).  The most recent instance of death in office was Lord Palmerston (1865).  In certain circumstances a prime minister could be dismissed by the monarch.  This happened in 1834 when King William IV dismissed William Lamb.   On departure through dismissal, it is also relevant to recall what occurred in Australia, a member of the Commonwealth, in 1975.  The Prime Minister, Gough Whitlam, was dismissed by the Governor-General, the Queen’s representative in Australia.

The departure of most prime ministers is brought about by resignation.  A prime minister will resign upon being defeated at a general election, the most recent example being Gordon Brown in 2010.  An exit by way of resignation can also occur where a prime minister faces a leadership challenge in her party.  In 1990 Margaret Thatcher resigned amidst substantial internal divisions, about her leadership, within the Conservative Party.  Describing how what he calls “the most striking ‘boss’ prime ministership of the post-war period” came to an end, Hennessy relates that nearly two-thirds of her Cabinet told her she could not go on.  He adds that “this was the crucial moment when she realized that her pyrotechnic command premiership was finished.”  Another reason for resignation can be the rejection, in a national referendum, of a major policy position advocated by the Prime Minister.  The departure of David Cameron, in 2016, illustrates this and he records that “Britain was leaving the EU and I was leaving the job I loved.” 

There is a convention that if a government loses a vote of confidence in the House of Commons, the Prime Minister should resign, and a general election take place.  This occurred in 1979 when the government of Prime Minister James Callaghan lost a vote of confidence, by one vote 311 to 310.  The Fixed-term Parliaments Act 2011 modified the position where a government loses a vote of confidence in the Commons.  This Act provides that an election is only triggered if, within fourteen days of the vote, neither the previous administration nor an alternative government has secured the confidence of the House of Commons.

Democracy

The most significant similarity between the US President and UK Prime Minister is that both are world leaders elected in countries with a democratic system of government, the USA a republic and the UK a constitutional monarchy.  Abraham Lincoln summed up the nature of democracy in his famous address at Gettysburg, “that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.”  The first President, George Washington, entered into office in 1789 and the Constitution that came into effect that year is still the fundamental document underpinning the governance system.

The year 2021 is the 300th anniversary of prime ministers.  The period in office of Robert Walpole, who is listed as the first Prime Minister, was 1721 to 1742.  Hennessy states that “each new arrival in No. 10 experiences it and manages it afresh, which is why transitions of governing and prime ministerial power repay especially close study.”

Close study of the last five years shows very vividly that the ability to command a parliamentary majority is a key element in determining how a premiership will go.  A Prime Minister with a good-sized majority in the House of Commons has greater authority than one who lacks this.

Barnett comments that “whatever the personal power of the Prime Minister, he or she is ultimately dependent upon the support of Cabinet, party and Parliament; and, in turn, that support is dependent upon the support of the electorate expressed not just through the vote at a general election, but continually expressed in that amorphous concept ‘the mood of the people.’”  Power rests with ‘the people’, every aspiring Prime Minister knows that, and every Prime Minister knows that he must never forget that.

 

 

 

 

Video: unique footage of secret WW2 ‘Scallywag Bunkers’ that were Britain’s lethal last line of defence

(Geoforensic Researcher and Lecturer in Chemistry at Staffordshire University), Jamie Pringle (Keele University) and Peter Doyls (London South Bank University) have written an article on The Conversation about the unique footage of the secret WW2 Scallywag Bunkers. You can read the article and watch the video here

Spending Review 2020: the experts react

“The chancellor claimed the spending review ‘strengthens the United Kingdom’s place in the world’, and that the UK will remain ‘open and outward looking’. However, the financial resources required to make a convincing case for a global Britain were lacking.”

Associate Professor Simon Smith (Security and International Relations) shares his reaction to the Spending Review in a co-written piece on The Conversation. You can read the full article here.

My Journey to Study the LPC at Staffs Uni

Jacqueline Hazel Adams, a Legal Practice PgDip graduate, tells us why she decided to make the career change to pursue a career in Law and why she chose to study the Legal Practice Course (LPC) with us at Staffordshire University.

My name is Jacqueline Hazel Adams. I am a citizen of the Republic of Trinidad and Tobago, twin islands in the Caribbean.

Having come from parents who were teachers, I gravitated towards a career in teaching. Every opportunity was taken to improve my skills. I obtained the Teachers Diploma at the Mausica Teachers Training College 1971; Certificate in Guidance and Counselling at the University of the West Indies, St Augustine Campus 1993; BSc Educational Services at Andrews University Berrien Springs, Michigan 1995.

Coupled with encouragement from family members who are Attorneys-at-Law, my interest in Law was peaked in 2009 when I attended a court matter. The magistrate conducted her affairs in such an engaging and courteous manner that I knew what my next stage would be. Retirement in 2010 as a School Supervisor heralded my entry into the field of Law. I was awarded the LLB (Hons) in 2013. My search for a University to write for the LPC and one which suited my needs and personality began.

I found you. In 2019 my journey to Staffordshire University commenced. As expected, the buildings, facilities, your situation within walking distance from the railway station, cleanliness, living accommodation, everything within arm’s length were just the tip of the iceberg. You did not disappoint.

Then I met students and some of the lecturers, Paul, Andrew, Ayesha, Sallyann, Anna. The atmosphere was exhilarating. The interest shown by the students and the caring, patience and love for what they do exuded from the lecturers. I knew that I was in good hands. I soon realized that I had to ‘take off running’ as there was a huge syllabus to cover. I was up to the challenge.

As a student doing the blended programme, the best part of my experience was the manner in which each course was handled by the respective tutors. No stone was left unturned. It was as though they knew what one was going to ask before the question was posed. The avenues for feed-back, the introduction to Blackboard and the collaborate sessions before exams were second to none. Our hands were held through it all so that we understood what was expected. It was our job to deliver at exams. This was by no means, a walk through the park. One takes out what one puts in. I was awarded the LPC Commendation in 2020.

At present, I am into my six months internship at a Law firm in my country. It is expected that on completion, I would be accepted to the Bar. I intend to join my daughter in her Law practice where I intend to specialize in Family Law. It is also my deep desire to educate my fellow citizens on various aspects of Family Law e.g. wills and estate planning. My motto, ‘To whom much is given, much is expected’ empowers me in going forward.

To all who intend to achieve the LPC, it is my experience, and thus, opinion, that the Staffordshire University is the place to be.

As a matter of information, my new life has begun at 70. As a matter of inspiration, I implore you, “never give up on your dreams.” I extend much thanks and appreciation to the staff of the LPC programme at the Staffordshire University and wish you God’s continued blessings in all your endeavours.

Do the police of Kosovo abuse their power? A student perspective

To begin with, I will introduce myself. I am Leona Shala, a Law student from Staffordshire University, and I have chosen to briefly talk about the corruption within the police system in Kosovo, due to my own experiences in Kosovo with the police. Kosovo is a small country with a lot of potential, which is held back due to corruption.

I will begin with one of my experiences in Kosovo with the police this year (2020). Being stopped by the police, [made me aware of] the lack of law-governing authorities. In England and Wales, we have the Police and Criminal Evidence Act 1984 which governs the police, but in Kosovo there is no [strict] legislation. There is not a specific format that is followed when stopping someone. For example, in the England And Wales the police must follow PACE code of conduct when stopping [citizens] and citizens have rights: [such as the well-known] ‘you do not have to say anything- but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence’. However, in Kosovo this does not exist. Evidently, it could be argued that authorities abuse their powers due to the lack of law and protocols.

Kosovo does have regulations put in place for the police, however these regulations are not followed [and] many of them are breached on a daily basis.

Based on Article 65 (1) of the Constitution of the Republic of Kosovo; Article 1 concerns itself with the guiding principles, these being:

  1. The actions of the Kosovo Republic Police shall be guided by the following principles:

1.1. fair and equal treatment of all persons;

1.2. respect for human rights and fundamental freedoms;

1.3. neutrality and impartiality regarding persons’ political views and affiliations;

1.4. integrity, honesty and accountability in public service;

1.5. transparency – providing information to the public and being open to public;

1.6. legitimacy, suitability and proportionality;

1.7. commitment to employment, advancement and assignment of duties in comprehensive, merit-based and non-discriminatory manner, by reflecting the multi-ethnic character of Republic of Kosova and by recognising the principles of gender equality and human rights foreseen by the Constitution.

  1. Police officers shall exercise their authorisations and perform their duties in a lawful manner, based on the Constitution, on other applicable laws, and in the Code of Ethics compiled by the Police of Republic of Kosovo and approved by the Ministry of Internal Affairs.
  2. The Code of Ethics should be in accordance with the above-mentioned principles and with the European Code of Police Ethics.

If you ask any person who has travelled to Kosovo, they will most likely tell you that they have been stopped many times just because they have had foreign number plates (for example driving a car with a  British number plate). Recently, Kosovo implemented guidance that police officers must stop harassing tourists. I have heard many people tell me that the police, upon stopping them, have asked for money [in order to waver the] fine [and] a criminal record; now this can sound like hearsay but it has evidently been proven that this happens. This form of corruption breaches many of their regulations which I have stated above.

On one occasion, I was stopped by the police in Kosovo. A young officer approached me and asked me for my driver’s licence and vehicle documents (this is one protocol the police follow). He stopped me due to not having a face covering on in my vehicle when I was the only one in the vehicle. There was no law stating that I had to wear a face covering in my vehicle. The first thing I picked up on was the fact that he did not state his name, station or even let me know what my rights were; he himself did not have a face covering on. 

This then made me think that there must be a significant number of vulnerable and less confident citizens who pay fines in a corrupt system, in which some police officers abuse their power. I know of many situations where police officers have stopped young women just so they can get their names and then have followed them on social media, [from asking] for their driving licence. [Asking for a driving licence is normal protocol, but] where does the line stop? It is not okay for male police officers to use their power to harass young women or any citizen regardless of gender.

The officer would have breached several procedural codes in England and Wales in this stop alone. It is clear this is probably the case with other individuals who are stopped daily and [are] uncertain about the law[ and their rights] and thus end up paying fines for offences that do not exist. It was useful to see the contrast between a country with a highly developed criminal justice system, compared to a very young country with a developing administrative system and administrative laws which have only recently been introduced.

 

 

 

 

An Update from a Researcher in Forensic Handwriting and Document Examination

Nikolaos Kalantzis, a Forensics Researcher at Staffordshire University, has had some exciting months discussing and presenting his research.

I was invited to deliver a webinar for Namirial’s partner campus [in August]. It is a company that sets up Biometric Signature solutions worldwide & the webinar was attended by more than 40 people from all over the world. The title of the webinar was Forensic Handwriting Experts taking digitally captured signatures seriously and parts of our PhD research were presented.

There is more information on this here:

https://www.linkedin.com/feed/update/urn%3Ali%3Aactivity%3A6694249770623479808/

https://www.linkedin.com/feed/update/urn%3Ali%3Aactivity%3A6696833862539976704/

I also presented three (& co-authored one more) presentations at the 78th Annual Meeting of the American Society of Questioned Document Examiners (ASQDE). Two of those included parts of our PhD research.

You can watch a recording of one of the presentations here

The other two presentations that are related to our research are here (but require free registration to access):

https://chartoularios.clickmeeting.com/force_asqde_78

https://chartoularios.clickmeeting.com/the-use-of-digitally-captured-signature-technology-in-everyday-casework-phu-111-wacom-clipboard

The Chinese government liked these presentations so much that they translated them & gave me the chinese versions, so those are also available here:

https://chartoularios.clickmeeting.com/chforce

https://chartoularios.clickmeeting.com/cn-phu-asqde

Upcoming plans

Three publications from my collaboration with the ENFHEX STEFA G8 group are underway.

I will be presenting content (including parts of our research) for Wacom’s Connected Ink event in November 2020.

I have been invited to present specifically Biometric Signature lectures & a workshop (so content directly connected to our research) for the American Academy of Forensic Sciences (AAFS) meeting in February.

You can also read  “Assisted vs. Guided Handwriting: a current approach to an old problem” from Niko Kalantzis & Leonidas Gigogiannos here

Just what would a local lockdown mean for Wolverhampton?

Before a second lockdown was enforced around Birmingham and Wolverhampton, Lecturer in Law, Aidan Flynn was consulted on the topic for an article in the Express Star.

‘Aidan Flynn, a senior lecturer in Law at Staffordshire University and an expert in Government powers around coronavirus, believes Wolverhampton would most likely follow other towns which have brought in restrictions.

He said: “The two main issues would be the number of people gathering together in one area and restrictions on how certain businesses might operate in relation to times of opening. Broadly speaking, that’s what’s going on in Bolton at the moment.

There could be restrictions on food outlets. If there was to be a decision to tighten things in Wolverhampton in a similar way to Bolton then we could be looking at that situation of restricting opening hours.” 

He added: “There is the chance of the law being discredited if it is not properly enforced. You would probably have the chief constable and the police and crime commissioner thinking about how they can get more out of their special constables.” ‘

You can read the full article here

Law Graduate Secures Training Contract with Law Firm

Law graduate, Jessica Latham has secured a Training Contract with Peninsula Law firm in Manchester. She shares her experiences of studying, both undergraduate and postgraduate, at Staffordshire University and her experience finding a Training Contract.

I had always wanted to pursue a career in Law, but it never felt like the right time to take that initial step. I was living in Thailand at the time, with nothing but a backpack with a few necessities in and an uncertain future. One day, I found myself using a communal PC, scrolling through courses in Law and routes to qualify as a solicitor. The next day I was on UCAS applying to do a degree in Law.

I applied for the foundation degree, as well as the three-year degree, at Staffordshire University; I had been out of education for some time and didn’t have the required UCAS points to qualify for entry requirements. To my surprise, I secured a place on the three-year LLB law degree. I packed my bag and got on a plane back to England to start my new venture at Staffordshire University.

Throughout my Law degree, I gained an array of knowledge of the different areas of Law. In the final year, I was able to choose practical electives, such as Mooting and Legal Advice Clinic. When I started the LLB, I didn’t know whether I wanted to be a Solicitor or Barrister. However, now my ultimate goal is to become a Solicitor Advocate.

Whilst in the last year of my law degree, I was chosen to be part of the team for the International Criminal Court Moot (ICC) in The Hague, Netherlands. This was an excellent experience as we battled through rounds in front of judges and professionals from all over the world.

Staffordshire University’s Legal Advice Clinic (SULAC) is an invaluable experience for a student and gave me a plethora of skills that I believe moulded me from a student into a trainee solicitor. SULAC is a fantastic edition to Staffordshire University’s Law department, allowing students to give legal advice to the public under supervision. I gained confidence, communication skills, problem solving, attention to detail and resilience, to name a few. The transferable skills that I gained enabled me to confidently start work in my first role as a Paralegal, fresh out of university, interviewing a client by myself on my first day.

I then decided to stay on at Staffordshire University to do my Legal Practice Course (LPC) with a Masters (LLM in Legal Practice). This was more practical than the LLB and prepares you for practice. The LPC is very intense, but the lecturers are so supportive and want to see you succeed.

My journey has not been plain-sailing and I have had setbacks throughout my studies. In the last year of the LLB, I was under mental health hospital care due to past trauma. Staffordshire University was my safe place for a long time, turning up to lessons as if nothing was wrong. In 2020, during my LPC, I was under mental health hospital care once again; the Law department and Well-Being team could not have been anymore supportive. I managed to complete my studies and these setbacks were all to become part of my success.

Now, as my time comes to an end with Staffordshire University and I hand in my dissertation (my last ever submission), I leave with fond memories and have secured a Training Contract as an in-house, Trainee Solicitor with an international firm. The interview involved questions on current case law, which I had studied on the LPC and had access to sources – such as Practical Law and Law Works – to maintain my commercial awareness.

Without the knowledge and experience gained throughout my time at Staffs and the support of lecturers, I very much doubt I would be living the life that I am today. It seemed a million miles away for someone who was once a mental health hospital patient, from a deprived area and low income family (that would be the first to go to university).

I started Staffordshire University with nothing but bad A-levels and no future prospect [other than] a dream to be a Solicitor one day. I leave Staffordshire University no longer a dreamer; I leave as a goal setter, with a first-class Law degree, an LLM in Legal Practice and a secured role as a Trainee Solicitor.

I no longer dream ‘one day’. Today I said, ‘it’s day one’.

My goal is to have my own law firm one day, offering students work experience placements to help future generations from all backgrounds to achieve their dreams too.

#ProudToBeStaffs

Law Alumni Wins Judicial Review in High Court

I am Michael Connor, proud to be an alumni of Staffordshire University. I studied for the two-year, accelerated LLB (Hons) at Staffordshire University from 2015 to 2017. I graduated with a first class honours Law Degree. I also achieved a Scholarship from Law Society to study the LPC at Nottingham Trent University.

My time at Staffordshire University was very rewarding. I found the Law School to be a nurturing, supportive and encouraging environment. Even though I am a mature student, both students and staff welcomed me with open arms. A law degree is challenging and requires dedication to achieve[, but] I will always have the best memories of my time at Staffordshire University. Before attending university I was in the Welfare Rights profession for twenty years.

I have put my law qualifications to work  for the benefit of our most vulnerable citizens [and made] legal history. I successfully applied for a judicial review in the High Court. This is now case law: (I think this is OSCOLA compliment!)

R (CONNOR) V SECRETARY OF STATE FOR WORK AND PENSIONS [2020] EWHC 1999 (Admin)

After hundreds of hours looking at case law on Westlaw and Lexis, my own case is on there! I progressed this claim as a litigant in person. I had learned valuable in-court advocacy skills from taking part in extra curricular mooting sessions facilitated by Staffordshire University. I also learned about judicial review in the Administrative Law classes.

My judicial review is allowed. Mr Justice Swift in the High Court has declared that it is unlawful for the Department for Work and Pensions (“DWP”) to require Income Related Employment and Support Allowance (“ESA”) claimants to have a mandatory reconsideration by the DWP, before they can appeal adverse benefit decisions to a first tier tribunal.

This is because it is disproportionate that such claimants can access an appeal pending rate of ESA when an appeal is lodged, but cannot when a mandatory reconsideration is requested. This is incompatible with the fair trial and right to tribunal provision of Article 6 of European Convention on Human Rights. It is therefore unlawful per section 6 of Human Rights Act 1998.

BACKGROUND

This case arose after the DWP took 18 weeks to reconsider my personal ESA claim, after they incorrectly refused entitlement. During this time I had no right of appeal to the independent first tier tribunal. As I am a carer for my mother, who is severely affected by Parkinson’s Disease, I was able to claim Carers’ Allowance. However, for most ESA claimants there are no alternative benefits that can be claimed. This causes severe financial hardship and destitution for ESA claimants. Only when the DWP finally complete their internal review can an appeal be lodged. An appeal pending rate of ESA can be paid until the appeal is heard. This creates a disproportionate anomaly that makes the mandatory reconsideration requirement incompatible with the fair trial and tribunal right contained in article 6 of European Convention on Human Rights.

I conducted this judicial review claim as a litigant in person. I did all the court claims and submissions myself. I also presented my case in person at Birmingham High Court on 19 March 2020. I was supported by a  successful crowdfunder campaign. Ms Lauren Bicknell, also a Staffordshire University alumni , assisted as Mckenzie’s Friend.

Although not officially a barrister I do have a recent first class honours Law degree, a Master of Laws with distinction and achieved a legal practice certificate. I have also had a twenty-year career as a Welfare Rights professional. Presenting  as an LIP gave me a unique opportunity to have High Court advocacy experience.

PERSONAL REFLECTION

I am a confident and effective advocate through years of representing at Social Security Tribunals. Legal research is also something I enjoy and am very effective at. I also very much like to think outside convention to find new approaches to old problems. I was therefore confident that I could progress this judicial review as a litigant in person.  Good understanding of the civil procedure rules really helped. I submitted a “N244” application for a court order for a judicial review cost capping order of zero costs to be claimed from me as the claimant. Had I not done so I could not have afforded to proceed. Thanks very generous donations to a crowdfunder campaign, raising over £7,000, I was able to raise the money for court fees and my own costs.

I know from experience that when in court it is best not to be rigid with one’s submission and to know your material inside out. This allows one to be flexible in court. If the judge is just not accepting a line of argument or submission, try another until one bites. Also keep the Judge happy. If she or he is hinting pursuing a line or to stop, go with it. I had a very inquisitorial Judge, Mr Justice Swift. It was a challenging time in court. For me though the harder the better, I can think on my feet. I also was very fluent with my law, case law and facts of the case. Not so for the two DWP barristers who had a very hard time in court. However, unlike me they have to go with their client’s instructions. And their lead Barrister, Ms Apps, was very helpful in preparing the court bundles and drafting agreed court orders. Always make bridges and connection with the opposition lawyers. They are only doing as instructed, it is not personal that they oppose you in court.

Judicial review is unusual as there is a requirement to reach agreement and the court has to seek the least intrusive method of addressing any government unlawfulness or illegality. Therefore I was very happy with the final order, a declaration of unlawfulness for the mandatory reconsideration rules for ESA claimants.

LAW NOTES

The mandatory reconsideration regulation is 3ZA of Social Security and Child Support (Decisions and Appeals) Regulations 1999

Article 6 of European Convention on Human Rights states that,

 “in determination of his civil rights and obligations everyone is entitled to a fair and public hearing, within a reasonable time, by an independent tribunal established by law.”

Section 6 of Human Rights Act 1998 states:

“it is unlawful for a public authority to act in a way that is incompatible with a convention right.”

Swift J applied the proportionality test in Bank Mellat v HM Treasury (No.2) [2014] AC 700:

could the objective have been pursued by a less intrusive measure without compromising its achievement; and having regard for the objective pursued and the severity of the consequences of the measure enacted, has a fair balance been struck between the interests of those affected and the general public  interest?”

Swift J therefore concluded;

“It is anomalous that the payment pending appeal arrangements for ESA under regulation 30(3) of the ESA Regulations do not extend to ESA claimants who are required by regulation 3ZA to request the Secretary of State to revise a decision and await her decision on that request before initiating an appeal.

 My conclusion is that regulation 3ZA of the Decisions and Appeals Regulations is a disproportionate interference with the right of access to court, so far as it applies to claimants to ESA who, once an appeal is initiated, meet the conditions for payment pending appeal under regulation 30(3) of the ESA Regulations.

In my submission I also relied on Golder v United Kingdom (1979) 1 EHRR 524 and Ashingdane v United Kingdom ECHR case 8225/78 to support my proposition. Namely, that disproportionate hindrance to potential appellants to tribunals and courts is incompatible with Article 6 ECHR

MICHAEL CONNOR  

Staffordshire University Alumni

International Day of the Victims of Enforced Disappearances: How Can Forensics Assist in the Location and Identification of Victims of Enforced Disappearances?

Please note this blog post addresses deceased individuals and human remains.

 

The International Day of the Victims of Enforced Disappearances takes place on Sunday 30th August 2020. According the United Nations Committee on Enforced Disappearances (2010), an enforced disappearance can be defined as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” Enforced disappearances are not confined to one country or continent, nor did they only happen in the past. Thousands of children and adults disappear on a yearly basis around the world.

Those working within Forensic Archaeology and Anthropology have been involved in the search, recovery, and identification of victims of enforced disappearances for several decades. At Staffordshire University, this an area covered on our Forensic Science and Forensic Investigation Undergraduate degree programmes. Our Forensic Investigation students not only have the opportunity to learn how to identify skeletal remains, but they also develop the skills needed to construct biological profiles for the purposes of identification. Students will also learn how to identify skeletal remains that have been subjected to taphonomic processes, which may occur naturally or may be an intentional act to conceal remains (e.g. burning). Identification skills are developed and put into context through the use of scenario based practicals and case studies are used to enable exploration of how forensic anthropologists have identified victims of enforced disappearance around the world, e.g. from present-day Mexico, Argentina’s military Junta, and the Spanish Civil War. Enforced disappearances are focused upon in detail, including the protocols that are followed in the search, recovery, and identification of human remains from a range of contexts in Iraq, Cambodia, Argentina, and Bosnia, to name but a few.

The importance of locating and, indeed, identifying those that have lost their lives following enforced disappearance is two-fold. Firstly, we must consider human rights of the deceased. As Claire Moon (2019, 55) highlights, the deceased “have the rights to identity, to return to families, and to proper burial”, and such rights may act “to compensate for rights that have been stripped away in life”. Secondly, we must assist the living that are left behind when family members and friends disappear. Without the identification of their loved ones, family members are left searching for answers and, in some cases, take it upon themselves to try and locate their kin. For example, in Argentina in the mid-1980s, families would carry out searches for the disappeared, whilst in present day Mexico, families are employing forensic techniques to locate and identify their kin (Moon 2020). Enforced disappearances destroy the lives of families and communities, but those of us working within forensics can give the living and the deceased a voice. We should not only be training the next generation of forensic scientists, but carrying out outreach to support the families that have been left behind.   

If you would like to know more about enforced disappearances, there is a plethora of resources online. However, I would recommend the following Twitter accounts for up-to-date information.

Twitter

Equipo Argentino de Anthropología

Human Rights, Human Remains (research project led by Claire Moon): 

United Nations

UN Human Rights

 

Dr Kirsty Squires

Senior Lecturer in Forensic Anthropology

Kirsty.Squires@staffs.ac.uk

 

 

References

Moon, C. 2019. What Remains? Human Rights After Death, pp.39-58. In: Squires, K., Errickson, D. and Márquez-Grant, N. (eds.) Ethical Approaches to Human Remains: A Global Challenge in Bioarchaeology and Forensic Anthropology. Cham: Springer.

Moon, C. 2020. Extraordinary deathwork: New developments in, and the social significance of, forensic humanitarian action, pp.37-48. In: Parra, R.C., Zapico, S.C. and Ubelaker, D.H. (eds.) Forensic Science and Humanitarian Action: Interacting with the Dead and the Living. London: John Wiley and Sons Ltd.

United Nations Committee on Enforced Disappearances. 2010. International Convention for the Protection of All Persons from Enforced Disappearance [online]. Available at: https://www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED.aspx