Crofting Law Group Conference 2017 – Reflections of an Aberdeen law student delegate

This blog post is by Simon Boendermaker, a recent LLB (Hons) graduate of the University of Aberdeen. Comments from Brian Inkster, Hon. Secretary of the Crofting Law Group, and Malcolm Combe follow.

Recently I had the opportunity to attend the Crofting Law Group Annual Conference, this year held in Stornoway on the Isle of Lewis, thanks to the generosity of the Group providing free student tickets and subsidised travel and accommodation.

As my Honours courses at the School of Law included both the Rural Law and Law of Leases courses (co-ordinated by Malcolm Combe and Douglas Bain respectively), I did not want to miss the opportunity to take part in an event which appealed to my interests. Alongside this, the programme for the conference featured an afternoon of events dedicated to common grazings, which had been the subject of considerable controversy in crofting communities in the previous twelve months. The opportunity to see vigorous debate between the newly elected crofting commissioners and representatives of the Upper Coll and Mangersta grazings committees, who had been sorely affected by the actions of their predecessors, made for a captivating agenda.

The conference took place in the picturesque surroundings of Lews Castle, the ideal setting to soak in my first visit to the Hebrides. However, there was little time to admire the scenery as a packed schedule of events began with a warm welcome from Iain Maciver of the Stornoway Trust (the community landowner of property in and around Stornoway), followed by a brief introduction to the day’s events from Duncan MacPhee, vice chairman of the Crofting Law Group.

As the programme of the conference would focus on crofting law reform, Fergus Ewing, the Cabinet Secretary for the Rural Economy and Connectivity, gave a brief video outline of the stance of the Scottish Government on current legislation. Ewing highlighted that the Scottish Government agreed with the views of crofters that the law was in need of reform, expressing sympathy with the view that legislation had become overly complex for the average crofter. He also revealed that the Government was engaging with crofters over the direction that reform would take, with one approach being to consolidate legislation into a simpler Act or alternatively to adopt a clean sheet approach and developing a completely new legislative framework. However, his comments were tempered by his acknowledgement that the government currently has several “legislative priorities” which meant that crofting would be balanced alongside several competing interests.

The clean sheet approach which was mentioned by Fergus Ewing was rejected by Patrick Krause and Russell Smith, chief executive and chair of the Scottish Crofting Federation. Both noted that legislative reform was low on the list of priorities of the average crofter and that they were generally concerned with areas of practical concern, such as decrofting (that being the term used for taking land out of crofting regulation) and assignation (transfer). Smith noted that a clean sheet approach would risk “throwing the baby out with the bathwater.”

Much discussion followed the next item on the agenda, when Duncan MacPhee revealed he had successfully arranged a standard security (the Scots law term for a mortgage) over an entire croft without the need to decroft the house and restrict the scope of the security to the decrofted land alone.

Bill Barron of the Crofting Commission discussed “a year like no other” for the Commission, stating that the previous board of the Commission had witnessed deep personal splits, which had led to it failing to act as a corporate body. Barron said he was keen to learn from the mistakes of the previous year, where members of the Commission had made individual regulatory decisions which had resulted in the breakdown of trust between individual crofters and the Commission. With regard to crofting law reform, Barron insisted that the Commission would work with the Government to ensure that any new legislation would support opportunity for new entrants, an area which urgently required examination to secure the future of the sector. Finally, he expressed a hope that, with time, the Commission would be trusted to work for crofters once again.

After lunch, where I was able to speak further with Barron about his plans for the future of the Commission after the previous twelve months, Brian Inkster gave a presentation on the controversy surrounding the Commission. A complete chronology of that could take up several blog posts: Inkster’s Crofting Law Blog provides exactly that, so those interested in further reading on that topic are directed there.

The final portion of the day gave crofters a chance to discuss the current situation surrounding common grazings. Calum Maclean from Upper Coll gave a passionate account of the previous twelve months from the perspective of the grazings committee on Upper Coll. He could not understand how Barron and the new Crofting Commission could be expected to win back the trust of ordinary crofters when they had done little to actively address the effects of the decisions of the previous Commissioners in 2016. However, he was able to finish by stating that ordinary crofters did not want to abandon the current framework but that serious work would be required to secure the future of the sector.

Crofting Law Group Discussion
A discussion during the conference.

The lively debate provoked by the afternoon’s discussions continued well into the evening, when I spoke to several crofters who had attended the conference over dinner and gained some invaluable insights from these conversations. A desire for reform was evident and it is clear that stakeholders will need to undertake serious engagement to secure the bright new future that crofting is desperately in need of.

After writing my dissertation on agricultural holdings, I was able to draw a number of parallels throughout the day between the situation of crofters and issues faced in the agricultural holdings sector, where secure tenants also benefit from a parcel of rights (some which are particularly strong, perhaps even stronger than the rights of the landowner). All of this has ongoing implications for the wider rural sector. For my part, the conference and indeed the discussions over dinner brought to life some of the issues that had been discussed in my law degree. Thanks again to the Crofting Law Group for providing me with the opportunity to attend this year’s conference. I would not hesitate to recommend future conferences to other interested students.

Comment from Brian Inkster

We have been running the assisted places scheme to our conferences for law students at the Universities of Aberdeen, Dundee, Edinburgh, Glasgow and Strathclyde for a few years now. It has been very well received by the Universities. It gives their students an opportunity to find out more about crofting law, a subject seldom touched upon at university. It is hoped that this exposure to crofting law may encourage those students to become tomorrow’s crofting lawyers. The Crofting Law Group will continue the assisted places scheme for next year’s conference which will be held in Edinburgh.

Comment from Malcolm Combe

The University of Aberdeen is very grateful to the Crofting Law Group for the support it gives to students from across Scotland. Whilst some courses at the Scottish universities touch on crofting matters, even with the best will in the world there is no way we could replicate a programme of events akin to the Crofting Law Group Conference for students to benefit from. We look forward to working with the Crofting Law Group in future, and if any other conferencing organisations would be interested in offering a similar student support scheme  we at the School of Law would be delighted to hear from you.

Crofting Students
From left to right: Brian Inkster (Secretary CLG), George MacDonald (Committee member CLG), Maureen Duffy (University of Strathclyde), Duncan MacPhee (Vice Chair CLG), Andrew Agnew (Dundee University), Fraser McDonald (Edinburgh University), Simon Boendermaker (University of Aberdeen), Gemma Thomson (University of Glasgow), Iain Maciver (Committee member CLG).

 

Reflections on “Land Rights and Land Responsibilities: An Audience with the Chair of the new Scottish Land Commission”

This blog post is by Malcolm Rudd, a recent Diploma in Professional Legal Practice graduate of the University of Aberdeen.

On 26 May 2017, the King’s Conference Centre at the University of Aberdeen hosted a lecture and panel discussion about Scotland’s land as part of the May Festival. This event built on a series of events that Malcolm Combe (a Lecturer at the School of Law) and colleagues at the University of Aberdeen have hosted on the topic of land reform, as digested on this blog.

Making More of Scotland's Land
(L-R): Anne-Michelle Slater; Andrew McCornick; Annie McKee; Malcolm Combe; Andrew Thin.

Andrew Thin, Chair of the Scottish Land Commission (Coimisean Fearainn Na H-Alba), provided the keynote presentation. He introduced that new body, which became fully operational on 1 April 2017, and said a few words about the forthcoming Land Rights and Responsibilities Statement, before considering what it and the Land Reform (Scotland) Act 2016 could mean for the management, use and regulation of land in Scotland.

The Scottish Land Commission was established under Part 2 of the new legislation. It is a Non-Parliamentary Departmental Body (or “Quango”), not completely independent of the Scottish Government but somewhat distanced. There are five land commissioners and one tenant farming commissioner with a range of experience and expertise of business, planning, science and public service.

Andrew Thin’s presentation was entitled “Making More of Scotland’s Land”. The principle of “more for more”, it was explained, will underpin the work of the Commission. Not “more” merely in the traditional sense of productivity, but in bringing greater benefits from the land to more of Scotland’s people. The forthcoming Land Rights and Responsibilities Statement, which is provided for in Part 1 of the 2016 Act, is intended to balance rights and responsibilities relating to land using a human rights based approach. The Scottish Government recently consulted on the contents of the Statement, and the Commission’s response (PDF) to that noted anxiety about ambiguity of language and lack of clarity of outcomes. Thin then outlined that the Commission’s role is to encourage flourishing communities, minimise dispute and pursue more diverse and disaggregated land ownership. Its strategic plan for 2018-2021 and some Codes of Practice relating to tenant farming (with agricultural tenancies being an ongoing issue for rural Scotland) will not be released until after the General Election on 8 June 2017.

Following Thin’s address members of an expert panel (reflecting sectoral, geographical and planning expertise) each contributed their perspective on the Statement and land reform policy.

The panel, led by Malcolm Combe, comprised:

Andrew McCornick, President of NFU Scotland
Dr Annie McKee, Social researcher in land management, The James Hutton Institute
Anne-Michelle Slater, Head of School, University of Aberdeen School of Law

Anne-Michelle Slater spoke first, addressing the role which planning law could play in land reform. Andrew McCornick raised his concern as to the perceived unclear trajectory of land reform. He explained that many farmers (both tenants and owners) felt overburdened by bureaucracy and were suspicious of what could be a threat to current land-based activities. Annie McKee focussed on community engagement and transparency in her contribution.

The audience were given an opportunity to ask questions and hear the response of the panel. Wide ranging discussion followed. There were questions about environmental matters, including biodiversity and water quality. Linked to this was land use, in particular forestry and deer management, and there was discussion about tenant farming (and the recent review of it) and the problem of rural community depopulation. One audience member, Professor Roderick Paisley of the School of Law, used the example of a farmer whose ownership allowed him to stay on land earmarked for the Trump International Golf Links to highlight the protective role that property rights can play. The questions were somewhat rural in focus, but it should be borne in mind that land reform policy also affects urban Scotland, that being a point Thin made in his presentation. Thin also stressed the Commission’s intent to engage with communities across Scotland (indeed, only the night before, such an event was held at Thainstone Mart in Inverurie).

The development of land reform in Scotland has been gradual. It will be fascinating to see the effect of the Scottish Land Commission and the Land Rights and Responsibilities Statement on the relationship between Scotland’s people and Scotland’s land. Perhaps this event, and indeed this blog post, might play a small role in highlighting that development.

To follow the event as it happened, relevant tweets from the @RuralLaw account can be found here.

Malcolm Rudd has recently worked as a research assistant at the School of Law, looking at aspects of land law with Malcolm Combe, with the support of the Carnegie Trust for the Universities of Scotland. He presented a paper on land reform and succession (inheritance) at a conference on 26 August 2016, also at the University of Aberdeen.

Perceptions of Corruption and Corporate Mobility: Malta as a real-time case study

This blog post is by Justin Borg-Barthet, a lecturer in EU law and Private International Law. Dr Borg-Barthet is the author of The Governing Law of Companies in EU Law (Hart/Bloomsbury 2012) and several other publications on corporate mobility. He recently formed part of a steering committee overseeing an extensive study for the European Commission on the law applicable to companies.

It is fairly well-established that cost is the primary driver for corporate choice of law and the choice of the physical location of a company’s business. Becht et al, for example, note that entry cost is the primary consideration for choice of corporate law. These authors also note that non-price factors in choice of law have been minimised through the intervention of intermediaries. Recent developments in Malta, however, suggest that non-price factors have some bearing on choices of establishment destinations in the internal market, at least insofar as they concern physical location as opposed to mere choice of law.

By way of background, following the publication of the Panama Papers, allegations concerning kickbacks have emerged involving the current Maltese Prime Minister, his chief of staff, a close aide, and a senior minister. I make no comment here on specific allegations. I am concerned, rather, with the effects of perception on inter-jurisdictional competition for incorporation and physical relocation of businesses.

Anecdotal evidence has emerged suggesting the some companies seeking to relocate from the United Kingdom to an EU-27 jurisdiction are influenced in their choices by the reputation of regulators. Hiscox Ltd, in particular, has chosen to situate its EU business in Luxembourg, having weighed up Malta and Luxembourg as its final shortlist. This cannot be explained with reference to entry cost. Operational costs in Malta are significantly lower than those in Luxembourg. Nor can it be explained with reference to familiarity with laws. Relevant Maltese laws are closely modelled on UK acts, whereas Luxembourg is of a civilian tradition. The key, instead, appears to be in Hiscox’s reference to Luxembourg’s “well-respected regulator”. It is not beyond reasonable interpretation to read this statement in its broader context; that is to say that the alternative regulator is no longer as well-respected, and that this affected choice.

Of course, this could be an isolated example. But it is consistent with the notion that choices of law and physical location are motivated by more than cost; or, more accurately, more than direct pricing. As noted by Devrim Dumladag, among others, ‘corruption in the political system is a threat to foreign investment’. It constitutes a risk which cannot be measured accurately, and which therefore cannot be accounted for with any degree of precision. Perception, therefore, is important. In 2017, Malta dropped ten places in the international Corruption Perception Index. Risk, therefore increased.

What is more, further evidence is emerging of a direct correlation between the ability to exploit the internal market and political reputation. It emerged on 14 May 2017 that, as a consequence of money laundering concerns, Commerzbank AG will no longer accept at face values audits conducted by branches of international firms situated in Malta. There have been no legislative changes in Malta which could have informed Commerzbank’s decision. The motivator appears instead to be political and administrative developments. It seems, therefore, that political branding matters.

Indeed, branding could, in principle affect not only physical corporate mobility, but also the legal fiction of mobility in the form of choice of corporate law. Drury argues, albeit in a quite different context, that a choice of corporate law – and with it the national suffix attached to a company name – affects public perception of a company. ‘Such labels give that company a distinctive national flavour in the minds of the public.’ Clearly then, it is not just the price of entry that would affect incorporation decisions, but also the associations arising from the national label which comes with incorporation.

This suggests that further evidence may emerge of downturns in the establishment of legitimate businesses under Maltese law. In other words, it is quite likely that both de facto and de jure mobility in the internal market may be affected by perceptions of corruption. While any evidence will likely be anecdotal in the absence of sustained academic investment, there is certainly some scope to qualify assumptions concerning price as a driver for corporate mobility.

Panama Papers.jpg

Syrian Refugees in Europe: what’s happening?

The following is the text of remarks made by our Dr Justin Borg-Barthet at a panel discussion organised by the Aberdeen University Yad’am Society on 6 February 2017.

Introductory remarks

To begin with, it is worth considering why we in Europe should be concerned about the Syrian refugee crisis.  Syria, after all, is not a European state and Syrians do not traditionally consider Europe to be their most immediate cultural hinterland.  It is arguable, therefore, that Syria and Syrian refugees are not European problems.

But let’s be clear that since the end of the Second World War, at least, we have all embraced the principle of a common humanity.  This is not merely a political statement, but is a principle entrenched in international law – like the 1951 Refugee Convention – and in the human rights law of the European Union and the European Convention on Human Rights (ECHR).

In the spirit of a broader humanity, I will not confine my comments to matters solely pertaining to the Syrian crisis.  That crisis is simply the most recent in a series of developments which have seen the European Union fall short of its humanitarian and human rights obligations in respect of refugees and asylum seekers.  It illustrates, in stark terms, an ongoing systematic and systemic problem in the EU’s relations with its neighbourhood.

In these brief remarks, I will address two main points.  First, I wish to highlight a failure to comply with obligations.  Secondly, I will consider briefly the constitutional policy implications of this failure, and make modest recommendations about how the Union could seek to address persistent problems.

Humanitarian and human rights obligations

EU human rights law has come a long way since the first steps towards European integration in the 1950s.  This is most clearly seen in recent judgments of the Court of Justice of the European Union (CJEU) regarding relocation of asylum seekers.  In the NS case, Afghan asylum seekers in the UK were to be returned to Greece, which was their point of entry into the EU.  Under the Dublin Regulation, Greece was responsible for processing the asylum claim.  It was found, however, that the applicants’ right to be free from inhuman and degrading treatment would be at risk due to systemic problems in Greece.  It followed that the UK could not return the asylum seekers.

The decision of the CJEU is, of course, to be applauded.  It demonstrated a shift in emphasis from the rights of states to those of individuals.  However, that judgment did nothing to alter the facts on the ground for most asylum seekers in Europe.

Reception conditions

Greece, Italy and Malta are the main ports of entry for refugees and asylum seekers from Africa, the Middle East and further afield.  Each of those states has been found to be in breach of the European Convention on Human Rights due to their inadequate treatment of refugees (e.g. M S S v Belgium and Greece (2011) 53 EHRR 2; Aden Ahmed v Malta ECHR App No 55352/12 (23 July 2013); Hirsi Jamaa v Italy (2012) 55 EHRR 21).  In particular, reception conditions have been found to breach the prohibition of the right to liberty (due to forced detention) and, consequently, the prohibition of torture (due to the adverse effects of detention on mental health).

The problems in these three states are compounded by the fact that they bear the brunt of responsibility for dealing with migration to the EU.  Whatever lofty declarations are made in the north and west of Europe, and despite images of hundreds of people trekking across a continent, the fact remains that pressures are concentrated in a small number of member states, which brings us to another problem of so-called burden sharing.

Burden sharing

A number of EU member states have long argued that there should be a system of compulsory burden sharing.  In other words, the responsibility for hosting and processing asylum seekers should be shared between the Member States rather than being concentrated in border-states.  The Geneva Convention arguably requires burden sharing as a matter of international law.  EU law itself is founded on the principle of solidarity between states and people.

But still, wealthier states which are geographically insulated from the crisis have resisted compulsory burden sharing.  Instead, they initially accepted a voluntary system.  Latterly, a system of agreed relocation has been put into place, but the Member States have been very slow in taking any practical steps to ensure that pressures are distributed.

This is important to member states which face significant financial and social burdens.  And because of those burdens, it is also important to asylum seekers.  No member state is able single-handedly to accommodate and welcome the numbers that have been crossing the Mediterranean Sea.  In the absence of collective action, asylum seekers remain vulnerable to the inadequacies of ill-equipped states.

Relocation to third countries

Following repeated failures in seeking compulsory burden-sharing within Europe, southern EU member states have changed their strategies.  Rather than advocating relocation of asylum claimants within the EU, they have successfully argued for the externalisation of problems through so-called reception centres in Turkey and Libya.  An agreement with Turkey is now fully operative.

Of course, there is nothing wrong, in principle, with supporting Turkey in its own efforts to provide reception to migrants, or in discouraging dangerous sea-crossings.  But the fact is that, for all the failures of EU member states, the treatment of asylum seekers in Turkey and Libya leaves far more to be desired.

You may recall that I mentioned the judgment in NS earlier.  In that case, it was decided that Member States could not return migrants to other EU States if there were systemic problems in the destination state.

There is no logical reason why that principle should not be applied between the EU and third countries in the same manner as it is applied within the EU.  Fundamental rights, after all, bind the member states whether they are acting unilaterally or collectively.  The principle of non-return in the judgment in NS should preclude the return of asylum seekers to Turkey.  Yet, just last week, the informal council meeting in Malta concluded that the Turkey agreement should be replicated in Libya.  Far from questioning the strategy, the Member States are seeking instead to entrench and extend it to ever more questionable destinations.

Tellingly, humanitarian corridors were not addressed in the council conclusions, but were determined to be a matter for the future.  We will deal with that once we have secured the border.  Now where have we heard that before?

Constitutional observations

The refugee and migrant crises expose cracks in the institutional architecture of the European Union.  There has been a consistent failure to act according to constitutional principles due to the stranglehold that the member states hold over law and policy-making processes.  If they refuse to act, the Union’s principles are meaningless in practice.  While the EU rightly baulks at President Trump, its own record of treatment of refugees has not been pristine.

Of course, it is difficult for the Union and Member States to act when public opinion is unsupportive.  But let’s not forget that public opinion is divided.  It is far from unanimous in its opposition to migration.

And there is equally a great danger in failing to uphold and defend principles.  If constitutional principles are not upheld, this lends an air of legitimacy to the ideologies that are threatening the EU’s collective model itself.  By reducing the stranglehold of states, and focusing instead on representation of people and rights of people, the Union could ensure that collective action remains possible, and that it is given further effect in future.

In other words, far from the answer being less Europe; far from the answer being the dismantling of Schengen; and far from the answer being border fences between states; the answer is a more principled Europe – a more meaningful European Union that is capable of acting internationally in accordance with its founding principles.

Dr Borg-Barthet is the co-author (with Carole Lyons) of an analysis article in the 2016 Edinburgh Law Review. ‘The European Union Migration Crisis’ is currently the ‘Most Read’ article online.

yadam-syria-poster
The poster for the recent event hosted by the Yad’am Society

2016 Graduation Address by Dr. Catherine Ng, considering Aberdeen graduate the Hon. Bertha Wilson

On Monday 13 June 2016 the University of Aberdeen LLB “class of 2016” graduated. This is the text of the Graduation Address by Dr. Catherine W. Ng at that occasion.

Vice-Chancellor, Ladies and Gentlemen:

We are gathered here today to mark a very important milestone in the lives of our graduates. This is a good moment to take stock before we all march onto the beautiful lawn outside and enjoy some well-deserved celebrations with friends and families. I imagine that is the immediate short term plan for almost all our graduates here.

What then of the medium and long term plans? Many of you will be entering careers that you have prepared for at least in part during your time here at Aberdeen. Above all, my hope is that you will fulfil your potential as individuals unhindered by any preconceptions that you or others may hold about you. I hope that by keeping an open and inquiring mind, and by constantly challenging preconceptions, you will also see possibilities in others, and that you will help them to reach their potential too.

Reading law does train us to challenge preconceptions. When we study case law, statutes, and treaties and their applications and implications, we try to overcome preconceptions and figuratively step into the shoes of each of the parties in a litigious dispute, or the parties negotiating a piece of legislation or a treaty in order to appreciate their perspectives. We do this to try to understand their concerns and interests at stake, and to assess the way the law seeks to resolve their differences. It is important to look beyond the law to the communities, the individuals, and the lives that the law touches. These exposures through the law let us glimpse a vast and diverse range of human experiences and conditions.

It is also important to view these experiences and conditions with a sense of compassion, empathy, and an open and learning mind. Your experiences here at Aberdeen may illustrate the point. At the start of your time here, you all arrived from different backgrounds, stages and walks of life. Most of you had a common cause which I hope was to study law. Along the way, you made friends and supported one another through both happy times and challenging times. You celebrated one another’s birthdays away from home, and you comforted one another through essay deadlines and examination nerves. With compassion and empathy, you formed common bonds to help one another to step closer to achieving each individual’s potential. In time, some of your preconceptions and initial impressions of differences melted away as barriers. Rather often apparent differences became points of interest that broadened your horizons. Some of you may have already visited one another in your home towns or countries, or learned something about them from one another. Keeping an open mind and not shying away from differences let you broaden your perspectives to be open to new ideas and to adapt to new circumstances in our globalised world.

Laws too change because of new ideas and new circumstances. Above all, laws advance because of individuals who can realise their potential to effect change. Let me give you an example of how putting aside perceptions and preconceptions has allowed one of your predecessors to realise her potential. Back in 1944, a 20 year-old raised here in Old Aberdeen graduated with an MA degree from the University of Aberdeen. She married a clergyman and they moved to Canada in 1949. When she looked to apply for Law School admission in Canada in 1954, she was told instead to consider crocheting because law was a tough subject and not for dilettantes.[1] Now there is nothing wrong with crocheting.  It is worthwhile and honourable work. Hospitals appeal for crochet hats and blankets to keep premature and sick babies warm, to help save lives. My point here is simply about how perceptions and preconceptions could have limited potential. This Aberdeen graduate’s opportunity to read law could have been limited because of another’s perception of her as a clergyman’s wife who happened to have had some time on her hands at that point. This Aberdeen graduate’s vision for herself could have been limited because she was then that rarity as a woman applying to study law, and moreover as a mature student seeking to re-enter mainstream education at age 31. Undeterred, she applied, was accepted, and completed her LLB degree three years later.

Fast forward to 1982: this Aberdeen graduate, now the Hon. Bertha Wilson, was appointed as the first woman judge to serve on Canada’s highest court, the Supreme Court of Canada.  Also in 1982, the Canadian Charter of Human Rights and Freedoms was enacted. She and her fellow judges were setting ground-breaking constitutional precedents on human rights issues. As a pioneering woman judge, she was pressed on the questions of how far she as a judge was or should be representing the voice of Canadian women. She responded by challenging the perception of the impartiality of judges as individuals and raised the question of whether men and women with their broadly diverse experiences would bring different perspectives to certain legal issues.[2] Still challenging perceptions, you see?!  Bertha Wilson served on the Supreme Court of Canada until her retirement in 1991.[3]  The University of Aberdeen recognised her achievements and awarded her the degree of Doctor of Laws, honoris causa, in 1989. Whether or not one agrees with her views, by her having shattered some of the stereotypes about the role of women, the late Bertha Wilson opened the vision for other Canadians to realise their potential.

Today in 2016, at the University of Aberdeen, our graduates are awarded their MA (Arts and Social Sciences), PhD, and LLB degrees. Seeing others take steps to realise their potential is one of the most gratifying experiences that life offers. We are on stage now to help highlight the achievements of our graduates. Graduates, it is indeed an extraordinary privilege to see you walk across the stage to mark these achievements. Later, as we join you on the beautiful lawn outside, I hope we can meet each other on that proverbial ‘even playing field’. Life is never even among individuals. We all carry with us different backgrounds and experiences. Life is unpredictable, and not all of it within our control.  Each one of us will be different tomorrow from today in our own individual ways. But what may allow individuals to be even is in the way we keep our minds open to be compassionate and to learn from one another, to be informed by diversity and not to prejudge differences, to be edified by the past and yet never be defined by it, and so to pioneer – take chances on ourselves and on others too.

I hope that during your time at Aberdeen, you have not only gained knowledge and understanding of the law, but also perspectives, life experiences, and friendships which you will cherish for the rest of your lives, which will help you realise your potential, and which you will in turn use to help others to realise theirs. I hope that you will lead fulfilling lives, and that you will continue to challenge perceptions and preconceptions.

On behalf of us all, our warmest congratulations to you, our graduates. Please do keep in touch with us through our alumni networks, and do keep us broadening one another’s horizons.

Thank you.

LLB Graduation 2016
Students on the aforementioned beautiful lawn enjoying some well-deserved celebrations with friends and families.

References

[1] Ellen Anderson, Judging Bertha Wilson – law as large as life (U Toronto Press 2001) 3 – 38

[2] Bertha Wilson, ‘Will Women Judges Really Make a Difference?’ (1990) 28(3) Osgoode Hall LJ 507

[3] Supreme Court of Canada, ‘The Honourable Bertha Wilson’ <http://www.scc-csc.ca/court-cour/judges-juges/bio-eng.aspx?id=bertha-wilson>  accessed 4 August 2016

Gotta catch ’em all, but what about the law? Access to land and #PokemonGO

This post is by Malcolm Combe

Amidst all that is going on in the world just now, I bet you a Jigglypuff you will have heard someone talking about Pokémon. You might not exactly know what this is, but you can still be affected, as this church in Glasgow discovered. You might have been bemused by the idea of people wandering around, smartphone in hand, chasing imaginary creatures in the augmented reality world of Pokémon GO. Or you might be an avid fan, so much so that you can identify with those who crowded into New York’s Central Park when a Vaporeon popped up.

This advance into augmented reality is a fun development for many and, it appears, a profitable one for Nintendo. That being the case, as the app has been rolled out across the world (launching in its native Japan today, as reported by BBC News) it has not been without issues. That news report highlights the first Japanese accident associated with the game has already occurred, after someone fell down some real stairs whilst distracted by the game. As it rolls across reality, it is clear there are safety issues involved with immersing yourself in augmented reality: in Scotland it might be mountainous terrain, in Bosnia it might be landmines. Its augmented reality has also rolled over the legal reality of various jurisdictions. The reality of realty, that is to say the reality of property law, allows landowners to take steps to retain and regain exclusive possession of their land in many circumstances. What those steps are will depend which jurisdiction a Pidgey nests in.

Scotland

What can a Scottish landowner do? In principle, the owner of land can get an interdict (a court order prohibiting certain conduct, equivalent to an English injunction) to prevent someone encroaching on her land by, for example, building on it. Similar orders could be obtained if someone was to undermine it or periodically intrude on it by swinging the jib of a crane over it. What about someone who turns up uninvited to your land without such profound plans? All they want to do is catch a Pikachu and move on, (hopefully) leaving the land itself undamaged and any real animals on it undisturbed. Can they do that?

Access to land in Scotland has been much discussed and often misunderstood. A commonly expressed sentiment is that there is no law of trespass in Scotland. That is not quite right, but from the other end of the spectrum a landowner putting up a sign saying ‘TRESPASSERS WILL BE PROSECUTED’ is likely to be sorely disappointed if it comes to an attempt to do so. Such signs might well suggest a desire to instigate criminal action against uninvited guests, but that is normally a matter for a public prosecutor in Scotland, namely the local procurator fiscal, rather than a landowner. Meanwhile, there are some circumstances when being on land can be a criminal offence, particularly if you are part of a disorderly group or if you cause damage to property or wildlife, but a careful Pokémon hunter should be able to avoid such offences. Indeed, a one-time, harmless trespasser might not even be liable for civil damages to a landowner in Scotland, although that should not be taken as an invitation to strut anywhere with impunity. Scotland is also criss-crossed by a number of defined public rights of way, allowing people to travel from one public place to another without fear of landowner challenge.

Private Property
This sign located off the old Deeside Railway promises prosecution for trespass. Good luck with that.

That gives an idea of the underlying Scots law position. That position has actually been liberalised by recent reforms, making the legal terrain even friendlier for access takers. The key legislation that does that is Part 1 of the Land Reform (Scotland) Act 2003. It gives everyone – yes, everyone, that is exactly what the statute says – rights to cross land or to be on land for certain purposes, including recreational purposes, subject to certain exceptions based on the character of the land or the conduct that is undertaken.

Those access rights are not unchecked: they must be exercised responsibly. Activity is not responsible if it interferes with the rights of other people, which includes other access takers as well as the landowner: if one person is lazily approaching a Snorlax, perhaps you should think carefully before you barge past them. There are also certain things that can never be classed as responsible, such as ‘hunting, shooting or fishing’ or taking motorised access (unless doing that in a vehicle which has been constructed or adapted for use by a person who has a disability). Although the term ‘hunting’ is not defined, it is respectfully submitted that hunting relates to real animals as opposed to augmented reality imaginary creatures.

Some land is excluded from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are simply incompatible with certain features on or of excluded land, such as a building, the ‘curtilage’ immediately surrounding a building, or a reasonably sized garden next to a dwelling. From this, we can glean that the interior of the church mentioned above would not be included in Scotland’s liberal access regime. Other exclusions include longstanding attractions where a fee is payable for entry, like Blair Drummond Safari Park, a sports field when it is in use, or farmland where crops are growing. Anyone seeking entry to such should ideally obtain permission: the ‘gotta catch ’em all’ defence will not wash here. In fact, Farmers Weekly has already carried an article warning Pokémon Go players to keep clear of farms.

Assuming the land itself is not excluded from access rights, can playing an augmented reality video game be classed as recreation? Recreation is not defined, but the Scottish Outdoor Access Code‘s (PDF) explanation of the term (at paragraph 2.7) is that it includes:

  • pastimes (such as watching wildlife, sightseeing, painting, photography and enjoying historic sites);
  • family and social activities (such as short walks, dog walking, picnics, playing, sledging, paddling or flying a kite);
  • active pursuits (such as walking, cycling, horse riding, orienteering, caving, air sports and wild camping); and
  • participation in events (such as walking or cycling festivals, hill running races, and orienteering events.

It does not seem a massive stretch to include Pokémon chasing as analogous to some of these activities, most notably orienteering.

England

All in all, it seems Scotland has a regime that is quite conducive to catching ’em all. What would be the position of an English landowner? It would be fair to say that England is not traditionally viewed as having a liberal access regime. Crucially, in England the very act of being on another person’s land without permission can give the relevant landowner a claim in damages, but England has also witnessed some important statutory reforms that widen access rights away from the traditional (delimited) public footpaths and occasional voluntary agreements.

The Countryside and Rights of Way Act 2000 applies to mapped open access land, which includes mountains, moor, heath and down, and registered commons (making a much smaller proportion of the country available for access when contrasted with Scotland, in the region of 865,000 acres). That legislation confers the right to enter and remain on land for the purposes of open-air recreation, but that right is restricted by twenty exceptions listed in a schedule to the statute.  The overall effect of this scheme would allow someone to walk on land, accompanied by a dog (but no other animal) and stop for a picnic, but not use a metal detector, camp or bathe in non-tidal water.  What about gaming? There is an exception relating to ‘organised games’. Previous DEFRA guidance suggested ‘organised games’ included ‘those which use a set pitch or defined area of play, organised starts and finishes and associated infrastructure, and which involves the participation of a number of people or a competitive element.  On the other hand, we do not consider that a family group or a small group of friends engaging in an ad-hoc game of rounders or cricket, playing with a frisbee etc are “organised games”.‘ As such, Pokémon hunting might just be alright in the areas mapped as open land, and perhaps also in coastal areas by virtue of the Marine and Coastal Access Act 2009.

Important as those areas are, what about the substantial area of land not covered by such legislation? In those circumstances, players may have to hope their desired Pokémon appears on an existing village green (which might not actually need to be green at all), or will be relying on a sympathetic landowner to allow access.

Conclusion

Each legal system may have different insights to bring to this new legal situation. Of particular interest to the liberally minded are the Norwegian friluftsliv, which translates as the ‘open air life’, and the Swedish allemansrätten and Finnish jokamiehenoikeus, which translate as ‘every man’s right’. For those in favour of a stricter approach, that mindset seems to be evident in many states in the USA. Wherever you are, there will be some considerations for landowners and access takers to work through: putting up a sign berating all things Pokémon is all well and good, but will it be enforceable?

STAY OUT OF MY YARD
Image credit: @davidharvey

Of course, there are other legal issues that might need to be considered. There might be a new issue for the future: should there be a remedy for a landowner against the person who projects augmented reality apparatus onto her land? This would not quite be analogous with a traditional nuisance by a neighbouring landowner or the situation of a photo or political slogan being projected onto a landmark. Alternatively, might there be some kind of negligence if people are lured to an unsuitable location?

Those challenges are for another day. All in all, it might be an idea to embrace the technology and make the best of it. That is what my own university seems to be doing, after all.

Although the allegedly grown-up Malcolm Combe is a lecturer in the School of Law, he remembers fondly the carefree days when he would come home from school to watch a TV double-header of Pokémon then cult Channel 4 quiz show ‘Countdown’. He also went to see ‘Pokémon: the First Movie’ in the cinema with his wee sister. He is delighted to find his latent knowledge of things like Team Rocket and Charmanders are once again relevant, and even more delighted to have combined that with some legal analysis.

UPDATE: A Drowzee and a Caterpie have been sighted in the Law School office. Staff are understandably concerned.

Presenting as an Integral Part of Research

This blog post is by Dave Lorimer, an LLM by Research candidate at the University of Aberdeen. In this post – the second this blog has hosted from a postgraduate student – he reflects on a recent interdisciplinary event at the University of Aberdeen.

The inaugural Granite Symposium on 25 April 2016 provided a good opportunity to present some postgraduate thoughts. The event allowed discussion of interdisciplinary issues, in particular where the social sciences meet technology, with a view to publication in a special edition of Granite Online Journal .

The keynote presentation by Prof Karen Kelsky was an enlightening review, albeit a very trans-Atlantic one, of where to go after ‘grad school’ and how to get there. Tricky questions for many of us. There was some thought-provoking advice about pacing the publication of research and how to tie it into an academic career.

For my part I presented on my latest numerical analysis on aspects of the criminal law. Having had an interesting and varied career as an engineer in the oil and gas industry, my early retirement (at a time when ‘bean-counting’, diminishing local reserves, standardization and ‘business modelling’ was taking much of the creative fun out of engineering) allowed me to pursue a life-long fascination with the law. It struck me in the course of my LLB that there were a number of analogous processes in the logic of the law and the logic of engineering. In fact, much of the work towards the end of my engineering career was primarily determined by a Law Lord.

The technical quality of Lord Cullen’s report on the likely chain of events leading to the Piper Alpha disaster would have made any experienced engineering professional proud. His review and recommendations on the use of Quantitative Risk Assessment (QRA) as a predictive tool in industrial safety management, for me at any rate, now resonate with a defeasible approach (as often used in artificial intelligence work) to assessing the ‘unknowable’ using the logic of numbers in a legal context; QRA predicts the likelihood of possible future events in order to identify the optimum approach to the best outcome – so why not seek to apply the same logic to the understanding of past events? So far I’ve worked on four discrete numerical applications within the area of criminal law. I presented separately on the first three at Strathclyde and Aberdeen, namely: 1) the risk reducing nature of corroboration with respect to wrongful conviction; 2) a numerical view of the criminal process as a chain of events; and 3) an exculpatory assessment of defence witness reliability in a murder case-study. The Granite Symposium allowed the opportunity to present on the fourth: a numerical assessment of information transfer by witnesses at trial. Each time I present, not only do the ideas under consideration become better understood but new facets are revealed in the process of receiving feedback from the audience, which ultimately strengthens and further develops the thinking.

Information transfer by witnesses at trial

At the heart of the witness accuracy model is some Enlightenment philosophy that I gleaned during the relatively brief study of McCoubrey and Whyte’s Jurisprudence as a law undergraduate, in conjunction with a curiosity about the history of philosophy as integrated with fiction by Jostein Gaarder and Robert Pirsig, plus a schoolboy interest in the writings of Jean-Paul Sartre. The Existentialist/Kantian view that what we see is not what we think we see and that the real world is unknowable is readily transferable to the analysis of the perceptive capacities of a jury. Information transfer from crime to witness to jury in the course of a trial may be broken down into seven stages and High (> 95%), Medium (50% mid-range) and Low (< 5%) rates of information transfer accuracy can be applied at each stage to give an overview of the ultimate extent of ‘erosion of truth’ in the picture as perceived by the jury. The seven ‘Kantian’ stages can be broken down as follows;

Event occurs – Witness perceives – Witness reflects – Witness recalls – Witness testifies – Jury perceives – Jury reflects.

The idea of ‘reflection’ after perception comes from David Hume (the philosopher, uncle of the institutional writer Baron David Hume) as do a number of other ‘Kantian’ concepts (the possibility that Kant believed he had a Scottish grandfather makes one wonder if he had read Burns too; ‘To see oursels as ithers see us’, ‘A man’s a man for a’ that’  and ‘That sense and worth o’er a’ the earth’ are well reflected in Kant’s moral philosophy; in this author’s humble view, they represent the Scotsman’s equivalent to Kant’s Categorical Imperative and its various formulations).

The surprising thing was that this ‘Kantian’ breakdown of stages raised the majority of feedback after the Granite Symposium presentation, in particular from researchers variously asking about applications with regard to:

  • advertising design development processes;
  • studying the history of theology;
  • computer science and the possibility of empirical work on the seven stages; and
  • neuroscience research, raising the question of whether Magnetic Resonance Imaging (MRI) scanning of the brain (known as functional MRI or ‘fMRI’) could lead to real-time assessment of information transfer accuracy at any or each of the seven stages. The state of the art with respect to the current size of MRI machines presents obvious practical issues with this but the idea that one day witnesses (and even jury members??) could wear an MRI scanner as a hat, may ultimately make polygraph (lie-detector) machines as obsolete and humour-inspiring as the wind-up gramophone.

The initial perception that this fourth and latest numerical application was of little more than scene-setting or background interest turned out to be wrong, at least as far as the Granite Symposium feedback is concerned. Some interesting ideas have been generated and the strength of the analysis – as in many if not most numerical assessments of this type – is not necessarily in the final arbitrary or defeasible numbers generated. As with experience in numerical risk analysis in industrial projects, much of the real value is in the analytical process of categorising inter-related parameters and the comparison of a range of inputs from a cause and effect perspective, as well as development of deeper understanding of the overall process and identification of key issues and new ideas. This is at the heart of a reasoning process and the numerical approach may be seen as a thread that binds or a link that chains – or even a kernel that continues to grow.

As far as academic presenting is concerned, any form of peer review – which includes presenting and discussing the issues with people of sound intellect and experience, plus any ‘digital dialectic (reasoning)’ such as blogging – also becomes part of the research and reasoning process. In fact, with respect to the research under consideration here, it seems at first thought perhaps a pity that jury members no longer get to question witnesses directly… but that’s another story.

Granite Q&amp;A with Karen Kelsky
Photo Credit – Granite: Aberdeen University Postgraduate Interdisciplinary Journal