British and Irish Law Education and Technology Association Conference 2018 in Aberdeen

The Law School of the University of Aberdeen will be hosting the 2018 BILETA conference on 9-11 April. BILETA is one of the leading scholarly associations in law, technology and education and its annual conference – with its opportunities for dissemination, publication and friendship – is for many one of the highlights of the year.  The conference title is “Digital Futures: places and people, technology and data”; and reflecting contemporary challenges and the conference location, a particular emphasis will be placed on energy, sustainability, cultural, rural and development issues and pedagogy.

BILETA is both challenging and welcoming and PhD students are particularly welcomed (including through the availability of two prizes). There is also an overall Taylor and Francis prize. Key note speakers this year will be Professor Ronan Deazley (Queen’s University Belfast) exploring heritage and creativity; and Professor Margaret Ross (University of Aberdeen) exploring the impact of technology on the student experience, with particular reference to mental health.

Professor Abbe Brown, conference organizer, is excited at bringing the conference to Aberdeen. She sees this as an opportunity to showcase (in particular): ongoing work in information science at the University of Aberdeen; and innovative developments across Scotland in information technology and education, notably through law clinics. And perhaps most importantly, she has arranged for a cèilidh and piper…

The call for papers is here (deadline 26 January 2018) and proposals for papers and also for posters are most welcome.

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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.

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

Inheritance law and the European Union: the impact of ‘authentic instruments’

This blog post is by Dr. Jonathan Fitchen.

Aunt Jemima died last week. She was 102. She lived in Belgium and was so very fond of you – now her only surviving relative – that you went to stay with her on many happy family holidays. Jemima always promised that you would be left her money and property by her Belgian will. You heard of Jemima’s death from her neighbour, Jacques, who you phoned to find out why Jemima was not answering her phone. When you travel to Belgium to Jemima’s funeral you also learn from Jacques that as well as her Belgian will, Jemima entered into various other arrangements via a type of document called an authentic instrument. There are three authentic instruments, one each from Bulgaria, Italy and Spain. You don’t know what an authentic instrument is, and nor do you know if such things can affect your entitlement to Aunt Jemima’s money and property under the Belgian will.

An expert team from the Law School of the University of Aberdeen (consisting of Professor Paul Beaumont, Dr. Jonathan Fitchen and Ms Jayne Holliday) has worked for the European Parliament to address some of these questions by producing a comparative survey of the law concerning a special type of legal document called an ‘authentic instrument’ that is used in 22 of the 28 EU Member States in matters concerning wills and succession (‘succession’ being the word lawyers tend to use for ‘inheritance’). (The six Member States that do not are the UK, Ireland, Denmark, Sweden, Finland and Cyprus.) The matter has become more important because of a law called the European Succession Regulation (Regulation 650/2012).

Authentic instruments are formal documents created by public officials, such as notaries, from some civil law legal systems. They provide strong evidence of any officially verified facts that they contain.

The Succession Regulation applies directly in every EU Member State (except in the UK, Ireland and Denmark – but it can still affect their citizens in situations such as that in the example above). It determines issues such as: what the testator can do in a will to choose a law for the will before his death; or what law and procedures apply after his death if his estate is spread across different legal systems.

The Succession Regulation was created to deal with the problems of uncertainty arising from very different laws of succession across the legal systems of the EU. The worry was that the estate of an EU citizen from one EU Member State who then lived and worked in (or retired to) another EU Member State might be very much complicated by a patchwork quilt of different succession laws that could ALL be applicable to this single estate. The legal complexity would entail delays and extra costs many of which would be paid by the estate.

An important provision of the new Regulation is Article 59. Article 59 obliges the authorities in one Member State to accept an authentic instrument from another EU Member State by giving that document the same or very similar evidence effects to those that it would produce in the Member State from which it originated. To comply with Article 59 it is necessary to know what the evidentiary effects of authentic instruments in each of the 22 EU Member States that allow their creation are. This is what our Study does (PDF). We have explained what the domestic evidence effects of authentic instrument are in matters of succession so that lawyers and courts in other countries can properly comply with Article 59 of the Succession Regulation.

What does this mean for your entitlement to Aunt Jemima’s money and property? Well, if the authentic instruments from Bulgaria, Italy and Spain fall within Article 59 of the Succession Regulation they will (in nearly all imaginable circumstances) produce the same evidential effects in Belgium (or any of the other relevant EU Member States) as they produced domestically (with these points being covered in our Study): you may not get all of Aunt Jemima’s money after all!

Further details of this (and other) work undertaken by the Centre for Private International Law can be found here. An earlier blog post by Jayne Holliday looking at another aspect of Private International Law’s relationship with the EU is available here.

Tales of the Unexpected

This blog post by Jayne Hollidaydiscusses findings from the recently completed research project on the ‘Conflicts of EU Courts on Child Abduction’ conducted by the Centre for Private International Law in collaboration with the University of Sussex and funded by the Nuffield Foundation.

‘Children should be seen and not heard’ is not the most enlightened proverb and is one that really ought not to be prevalent in modern judicial proceedings within the European Union in cases that affect children. Yet ‘children not being heard’ is precisely what is happening at the moment in intra-EU parental child abduction cases.

What do I mean by parental child abduction cases? When people hear the phrase child abduction they often confuse it with trafficking or kidnapping but in these cases it is where a parent takes their child to another country to live without the permission of the other parent who also has custody rights. Many parents are unaware that to travel out of the country with their child they need the (usually written) consent of the other parent.

Child abduction of this type is by no means a small problem. In 2014, Reunite, a charity that provides support for people involved in these cases, stated that there were over 500 cases involving the UK alone, with the most frequent destinations being France, India, Ireland, Poland, Pakistan, Spain and the USA.

So what can a parent do if their child is abducted in this way? When a parent believes that their child has been abducted by the other parent to another country to live they are able to apply to the court to ask for the child to be returned under the 1980 Hague Child Abduction Convention. Under the Convention, the parents can also expect help with the process of solving the child abduction from the Central Authorities in the relevant countries.

So far 94 countries or Contracting States have signed up to this Convention and as it only operates between these Contracting States it is necessary to check to see if the relevant countries are party to the Convention and whether it applies between them. For further information click here.

If the 1980 Hague Convention applies (as it does in all cases between EU Member States) and the application for the return of the child is successful then the courts in the country where the child has been abducted to will decide whether or not to return the child. The process is supposed to happen quickly. Usually this works fairly well. The child and parent come back to the child’s habitual residence before the abduction and issues surrounding custody are dealt with there, working on the principle that those courts are best placed to deal with it.

Sometimes the courts in the country where the child has been abducted to decide not to return the child under Article 13 of the 1980 Hague Child Abduction Convention. Article 13 contains the exceptions to returning the child: the left behind parent consented or acquiesced to it, the child would be at grave risk of harm or otherwise placed in an intolerable situation if they were made to return or the child themselves objects to being returned and is old and mature enough for those views to prevail.

In the EU where a court in a Member State has said no to returning the child under Article 13 of the 1980 Hague Child Abduction Convention, the left behind parent uniquely has one more chance to ask for the return of the child. The Brussels IIa Regulation, which deals with parental responsibility and matrimonial matters, contains what on paper looks like a trump card.

Article 11(8) of that Regulation allows the courts in the country of the habitual residence of the child before the abduction to consider what is in the child’s best interests and if they disagree with the non-return order they themselves can issue an order to return the child. For that return order to be enforceable it needs to be accompanied by an Article 42 Brussels IIa Regulation certificate. This is to certify that the child has been given an opportunity to be heard in order to see whether they object to being returned, that both parents have been given an opportunity to be heard, that the court has taken account of the reasons for the non-return, and where applicable, measures to ensure the protection of the child on their return have been put in place.

Professor Paul Beaumont and I (from the Centre for Private International Law at the University of Aberdeen) and Dr Lara Walker (from the University of Sussex), as part of a research project, gathered case law from every Member State within the EU where a left behind parent had initiated these Article 11(6)-(8) Brussels IIa Regulation proceedings. The aim of our research was to assess whether the courts were following the requirements needed to issue the Article 42 Brussels IIa certificate; one of those factors being whether the child had been given an opportunity to be heard, with their views being given due weight in accordance to their age and maturity.

This proved to be easier said than done, as many of these cases are unreported. After eighteen months of research – working with Central Authorities and volunteer researchers in every Member State, NGOs, judges and practitioners – a total of 66 intra-EU cases were collected and then analysed. All of these cases involved Article 11(8) Brussels IIa proceedings but not all the proceedings led to the decision to order the child’s return. However, out of these 66 cases, involving a total of 70 children, it turned out that only 14 children were heard by the courts usually through the Taking of Evidence Regulation.  

The question we then considered was why were these children not being heard? Could it be that the age of the children was a justifying reason?

The data proved to be concerning. We found that children as old as 15 had not been heard by the court even where the reason for not returning the child in the first place under the Hague proceedings had been due to their objection to being returned. Also, children under 12 were routinely not being heard in certain Member States. The national laws of some Member States require that all children are to be given the opportunity to be heard from the age of 12 even when it is commonly understood that children as young as 6 are routinely heard in some Member States in Hague cases, or even from 3 years of age as is the case in Germany. The original reason for the child being 12 years of age is that certain Member States held the view that they needed to protect the child from conflict and they could do this by keeping them away from the courts. However, this approach does not fit easily with the right of the child to be heard. The right of the child to be heard during civil proceedings that affect them is a requirement under international law within Article 12(2) of the United Nations Convention on the Rights of the Child and at EU level within Article 24(1) of the Charter of Fundamental Rights of the European Union, and is theoretically protected within these cases by it being a requirement of the Article 42 certificate before a return order can be enforced. But with only 20% of the children in these cases being heard, it is clear that the courts are failing to protect this right .

Additional reasons for the courts not hearing these children were also identified. In addition to the abducting parent in some cases obstructing the child’s opportunity to be heard, a lack of technology was put forward as a reason in many Member States. Not every Member State has arranged for video conferencing facilities to be available to the courts or if they have there is inadequate access. In an age where everyone with a mobile phone is used to having the ability to communicate easily and inexpensively with someone in another country it seems incredible that Member States have not yet put the infrastructure or the manpower in place to support the Taking of Evidence Regulation. But as with all things in life it comes down to a lack of money or in some cases a lack of prioritising the protection of the most vulnerable parties.

Not everything turned out to be doom and gloom. The sheer number of children not heard in these cases was indeed unexpected but it was also encouraging to see that some Member States were working hard to implement change. Judges told us that they now receive training on how to hear the child, and/or they are able to bring experts in. Rooms are being set aside in court buildings that are considered to be a less imposing environment than the court room for a child to be heard in. It is clear that some Member States in the European Union are slowly making the changes needed to protect the rights of the child.

With the revision of the Brussels IIa Regulation imminent we were able to send our interim findings and recommendations to the EU Commission. We await the outcome of the review with interest.

A brief summary of our findings and all the EU country reports can be found on the Centre for Private International Law’s webpage.

For those of you who are interested in finding out more, our overall findings from the research will be published in “Conflicts of EU courts on child abduction: the reality of Article 11(6)-(8) Brussels IIa proceedings across the EU” (2016) 12 Journal of Private International Law (forthcoming).

David Carey Miller: a tribute

This blog post is by Malcolm Combe.

On 6 and 7 March 2015 I was lucky enough to participate in a conference celebrating the life and work of Professor David L. Carey Miller at the University of Aberdeen. David was both a wonderful scholar and a wonderful man, and his conference and the related dinner was befittingly well attended. When “DCM” spoke at that dinner, it was with his usual modesty. Delegates listened to his downplayed anecdotes about his remarkable career, whilst his younger colleagues – and perhaps even not so young colleagues – reflected on his record of publications and achievements with a mixture of awe, envy and pride.

Whilst David’s career was worthy of celebration in and of itself, another point of the conference was to showcase new ideas. The various papers from that conference are slowly being drawn together to form a “festschrift” for David. That process of bringing together a collection of essays to celebrate his contribution to Scots law and – given David’s fluency in a number of legal systems – his native South Africa and indeed further afield has perhaps taken a little longer than it might have, mainly because some contributors have been tardy in submitting developed versions of their conference papers. (The present writer included.) It is now to my eternal regret that David will not see the published version of that festschrift, or even a draft version of the words I planned to submit to it. Nor will he read the words in this crudely and hastily shunted together blog post. That is because David died suddenly at the weekend. His death leaves a void in the community in which he had been based for many years.

What follows is a short, personal reflection of what David meant to me. I am conscious of the dangers of making a piece about someone else all about me, but I am confident my own interaction with David will go some way to demonstrating the kind of man he was. No doubt others will have similar stories. (If so, please feel free to comment below or get in touch by any other means.)

Despite our respective connections to Aberdeen, I first met David in Glasgow, at the University of Strathclyde. That place of useful learning played host to the 2005 Society of Legal Scholars conference. David was a delegate at that event, whereas I had just finished my law degree and was one of a number of students (and recently ex-students) who acted as guides. On the basis that I was about to move to the University of Aberdeen to study the Diploma in Legal Practice (as the postgraduate phase of legal education in Scotland was called at the time), I was able to speak to David and strike up the beginnings of a relationship that resulted in me being both a research student and a tutor for the School of Law whilst working towards my postgraduate diploma. The fact that David was Head of School during that year no doubt helped with those appointments, but the most important factor in all of this was his taking the time to speak to and encourage a young whippersnapper when he had absolutely no obligation to do so.

Some of my research in my Diploma year was independent, but the most significant works were produced in partnership with David. This collaboration came to fruition in the form of two pieces of work: one on the boundaries of property law; and another on one of David’s specialist subjects, corporeal moveable property (co-authored by Andrew Steven and Scott Wortley). David’s contribution to my own development was immeasurable, both in terms of guidance and in his willingness to list me as an equally-ranked co-author. I can think of several others who similarly benefited from his benevolence towards more junior partners.

After completing my Diploma, I moved to Edinburgh to train then practise as a solicitor, but David fostered a continued link between me and Old Aberdeen. I taught an honours LLB seminar and participated in the Baltimore/Maryland Summer School, both at the invitation of David. (David’s enthusiasm for and dedication to that Summer School is something else worthy of celebration.) I rejoined the School of Law as a lecturer in 2011, a step made all the simpler by that ongoing relationship, then continued to work with David on an eclectic range of matters: teaching for the undergraduate property law course; submitting a response to the Scottish Law Commission on the reform of security for corporeal moveables; and presenting to a delegation of Norwegian judges about aspects of Scottish land law.

It is the first of those activities which brings me to my most personal insight into David, but it is one which also gives a great insight into him as a man.

On 20 August 2013 the summer diet of exams at the University of Aberdeen was in full flow. A number of students were tackling the Law of Property exam that David, me and others had set. With apologies to those students, I am afraid your travails are not important to this anecdote. The more noteworthy travails were mine. To put it mildly, I was not at my best that day. I was finding exam invigilation to be nigh on the most difficult thing I had ever done: for context, I was no longer able to walk the relatively short distance from my home to the university, my breathlessness and groin strain being attributed to a recently diagnosed hernia, so I had been forced to drive to the campus. David had kindly volunteered to help with invigilation that day, but the main thing he witnessed – with some concern – was me hirpling around the exam hall. He accompanied me back to the School of Law after the exam, carrying more than his fair share of exam scripts on my behalf. Clearly something was wrong with me, and the next day I was admitted to Aberdeen Royal Infirmary after blood tests showed something of concern that was decidedly not a hernia. The next again day I was diagnosed with stage 4 testicular cancer: this went some way to explaining my breathlessness, and a few other things besides.

It goes without saying this was not a great time for me, but I was lucky enough to have many colleagues who sprung into action to help. Special mention must go to the property law team of Roddy Paisley, Andrew Simpson, Douglas Bain and Abbe Brown, but extra special mention goes to David. Not only did he immediately step up to replace me as class coordinator of that course for the impending term, he also furnished me with copious supplies of books, butteries and best wishes when he visited me in the hospital at the first possible opportunity. When I was well enough to participate in academic tasks, he was happy enough to let me do so, but when I was not I was able to rely on him to deliver a course in my absence.

Fast forward to February 2016 and I can offer two further recent anecdotes. When I last saw him in person, I asked him if he would be kind enough to look over my contribution to his festschrift. He agreed, of course, but I had not quite finished it to a standard that I felt David would have been proud of. Following his sudden death he will never get to see it. Whilst I am grateful he was there to hear my oral tribute to him at his conference last year, the regret that he was not able to see even a form of those words written down is something that will linger with me for some time.

As for my last communication with David, this began with an email attaching a short “case commentary” note. The case my draft article related to was a dispute about corporeal moveable property. On Friday, he sent me some helpful points for consideration. I replied to thank him, offered him some counter-analysis, and also noted that I was actually on annual leave that day (albeit I was replying to emails). David then sent me some further thoughts and source material, whilst simultaneously imploring that I did not reply to his correspondence on my day off. I followed his order. I am strangely gutted that I did, as I did not get to finish that last conversation with him, but I think even that abrupt ending, at his behest, tells something of the man: not only was he keen to help in that specific instance, he was also looking out for my best interests as a whole.

Other tributes to David will follow, from friends and family who knew him for longer than I did. Until then, I hope this short note goes some way to set out what a special person David was. He leaves behind a staggering body of scholarship, which will be documented in the forthcoming festschrift, but he also leaves many fond memories. Even so, I will miss him terribly.

DCIM100PHOTO
Professor David Carey Miller is second from the left, receiving a presentation from a delegation of Norwegian judges. In the centre is Håvard Steinsholt, from that delegation. Malcolm Combe is second from the right, former colleague Dr Aylwin Pillai is on the right.

 

Historical documents reveal University’s opposition to Nazis

This is the inaugural blog post of the School of Law at the University of Aberdeen. As noted in our “About” page, this blog will showcase a variety of material, whether that is a work in progress, some published output, participation in a seminar or a conference, or anything that a news item on our website will not quite do justice to.

This post falls into the latter category. Recently, some fascinating minute books of the Faculty of Law (the precursor to our School of Law) resurfaced, leather bound and beautifully hand-written.

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Old documents of this nature have a certain curiosity value, but the minutes for the period from 7 December 1938 to 22 February 1939 are remarkable. The minutes reveal that the School of Law received correspondence from the Faculty of Law at the University of Amsterdam. That Dutch Faculty of Law did not have the North Sea keeping it a relatively safe from Hitler’s gathering military might and that Faculty wanted to highlight “with sorrow and dismay” that people were “being persecuted and tormented on account of their faith race or political convictions”, with a particular mention for the “so-called concentration camps”.  The Faculty of Law at Amsterdam sought support from “all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland”: the Faculty of Law, with the concurrence of the Principal of the University, unanimously supported their resolution.

The minutes imply that Aberdeen was not alone in receiving correspondence, and this resource and this post from Berkeley Law show that this was indeed the case. Beyond that, no other information is available at the School and no warranty is given as to the veracity of the minutes (although we have no reason to doubt them).

What difference did the stance of the Faculty of Law at the University of Aberdeen make? At one level, precious little. Hitler’s Germany looked east to Poland, then west to the Netherlands, and the rest is history. Not only that, the North Sea did not exactly keep Aberdeen entirely safe: the writer of this blog lost his great-grandfather to a German bombing raid on the city. Be that as it may, it is heartening – even just slightly – to note that the University was not completely inactive in the face of the challenges of the time. In fact, there is a certain resonance with the University of Aberdeen’s “Shining Lights” Scholarship Fund, which aims to support those who have refuges status (as reported on the BBC).

It seems fitting to give the final words of this blog over to the minutes themselves, which are transcribed below.

Blog by Malcolm M. Combe

7 Dec 1938

At a special meeting of the Faculty of Law held on the 7th day of December, 1938.

Present: Professors Taylor (Dean of the Faculty) and Morrison, Mr Esslemont, Mr Masson and Mr Mackinnon. The Principal was also present by invitation of the Faculty.

Minute Approved

The minute of meeting of 23rd November 1938 was read and approved.

Faculty of Law of the University of Amsterdam

A telegram of date 30th November, 1938 was submitted from the Faculty of Law of the University of Amsterdam.

After discussion, it was agreed to report to the Senatus as under:-

Intimating that the Faculty of Law had received the following telegram from the Faculty of Law of the University of Amsterdam:-

371 6.6.6.1843 30 Amsterdam 179

R.P 2/- Faculty of Law University of Aberdeen        30:11:38

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution this invitation has been wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland:- “The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith race or political convictions and that particularly in the so called concentration camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated, voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man, appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective Governments” and that the Faculty with the concurrence of the Principal has sent the following reply:- “Faculty of Law University of Aberdeen unanimously support your resolution.

Thereafter the Secretary was instructed to send a copy of the reply to the Faculties of Law of the Universities of Glasgow and Edinburgh and to enquire what steps they propose to take with a view to publishing the resolution and the action taken by them and to suggest that, if they concur a joint communication should be sent by the three Faculties of Law of the Scottish Universities to the leading newspapers in the country and that a joint communication be sent to the Government.

At the next meeting on 25 Jan 1939

Faculty of Law of the University of Amsterdam

In answer to the remit of 7th December, 1938, the Secretary reported that he had sent copies of the Faculty’s reply, regarding the resolution of the Faculty of Law of the University of Amsterdam, to the Faculties of Law of the Universities of Glasgow and Edinburgh. The University of Glasgow replied that it did not propose to take any action as no telegram was received by it. The University of Edinburgh replied that it had sent the following telegram to the Law Faculty, Amsterdam – “Telegram received, sympathise but deprecate action on these lines at this time” and stated that it was not proposed to take any further action.

Thereafter the Secretary submitted a copy of the resolution together with a list of the Universities (a) who had seconded the resolution and (b) who had adopted the resolution.

It was agreed to communicate the resolution to the Government and it was remitted to the Secretary to ascertain from the Secretary of State for Scotland as to whom the resolution should be addressed.

It was further agreed that when the Secretary had ascertained as above, copies of the resolution be published in the “Scotsman”, “Glasgow Herald” and “Aberdeen Press and Journal”.

22 Feb 1939

Faculty of Law of the University of Amsterdam

In answer to the remit of the Faculty of 25th January, 1939 anent the Resolution of the Faculty of Law of the University of Amsterdam, the Secretary reported that he had received a letter of 30th January, 1939 from Mr C C Cunningham of the Scottish Office Whitehall, intimating that it would be quite appropriate to communicate the Resolution to the Secretary of State for Scotland and he saw no strong objection to sending it to the Prime Minister if so preferred.

After discussion the Faculty resolved to send copies of the Resolution to the Prime Minister and to the Secretary of State for Scotland with the following covering letter approved by the Faculty:-

Sir

I have the honour to send you herewith copy of a resolution which has been adopted amongst Law Faculties, by the Faculty of Law of the University of Aberdeen.

I am directed to state that the Senatus Academicus of the University of Aberdeen has also approved of this resolution and of its being forwarded to you.

I have the honour to be, Sir

Your obedient Servant

Secretary

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