I today went to the Royal Court of Justice as part of my course requirement and was comparing the relative formality - compared to other countries - with which the interaction take place. No doubt laymen (as what lawyer seem keen to brand citizens) find the court environment so intimidating. I came across this interesting video that is not only funny bu also reflects a very different culture. This is just one small example and at any other day at another court the said person may actually have been thrown out or worse still found in contempt. Nonetheless this guy did it, everyone had a good laugh and then went about there own business probably becoming a highlight of the day.

You can bet you can't do such a thing here in UK. Not to mention this small decades old contempt legislation. But, come to think of it, it may also reflect the nature of the small strata of society that is represented in the legal system one that is old, arcane and desperate to cling on to anything that represent the heydays of yesteryear: the aristocracy.

Career Advice at Crescent Model School

Today while relaxing (read "procrastinating") after quite a hectic day at the Old Baily Central Criminal Court, London I stumbled across a -not so revolutionary- idea of giving something back to my school (where I spent 12 years of my education, yes from Grade 1 to 12) for what it has given back to me.

Let me start my saying a few words about my school, Crescent Model School. It is now about 35 years old and in its hay days it was the best school in Lahore my home town. It split up into boys only and girls only branches sometime back in the early 90s. The boys only has seen a steady decline in the quality of education it provides. Its part subsidized nature meant that it has never been able to pay competitive salaries to its teacher [Note I never knew about the exact figures teachers received so I cannot verify the veracity of this statement but this was almost universally agreed at the time I was in the school].

The result was that bar a few exceptions most of the quality teachers left the school for other private school that were charging higher fees and were able to offer better pays. I do not think Crescent School school could have done much other than to raise fees as well but that would have went against its philosophy of school for the middle class.

This being said there were a lot of things I did not like about my school at the time (most nothing to do with quality of teaching), and certainly do not like now after benefit of hindsight. Now I do not intend to list what was wrong with my school or what was good because things have moved on. It has been over 5 years since I last stood inside it as a student and knew the ins' and outs' so that information may well be redundant.

Now you must be asking where am I getting at, what is this idea? Patience I beg. While spending time at the school and college one thing I sorely missed was career guidance. Being children of middle class families there were not too many options we were all concerned with, doctor, engineer everyone wanted to be (something that has never been possible and never will). Even then, no one growing up until grade 8 and some, including me did not know what to do in order to be a doctor or an engineer. We certainly did not know how to pursue our interests in general and discover our talents in particular.

What I would dearly love is, have graduates come and visit the school, once a term [i.e. 3 times a year but it can be more or less periodical if necessary]. Graduates would mean university students to people with established careers and dare I say recently retirees, but people with a lot more "worldly" experience than the students themselves have. It can be as informal as it gets, over lunch, where children talk to these ex-students in one-one discussion to some form lectures with a lot of questions from the audience [which ever works best]. The idea being to talk about practical realities, more away from the books students are concerned with at all time and ensuring these youngsters are able to step back and look at the bigger picture. What the world is like. What there interests and ambitions are and how best to achieve those ambitions.

An idea in progress. If you are current student reading this I have two things to say, first I commend you for reading thus far and good luck for changing things around and putting into practice this or somewhat similar idea.

Ahmed Uzair [Class of 02[Matriculation] and 04[A-Level]]

I am going to start using the blogosphere a lot more than I have in the past. My vast majority of the source of information I obtain from the internet is raw data news research papers case law and so forth. I do not follow too (read "any") many blog, heck I havn't got my head around RSS feeds yet.

I also want to change the way I post on my blog. The entries are usually quite formal, often written for some other purpose. But now I want to change is in the air!

Police Academy Carnage: Is Pakistan's security situation out of control?

For starters, to think that the President or any politician would resign over what is ostensibly a failures of the state is wishful thinking. They would be more than willing to "dismiss" state officials, but that is only so that the blame rests on someone else.

I think I would have to answer the question in the affirmative. We have to accept that the situation is dire. There are many reasons, but for me 2 stand out.

WIDESPREAD ARMS PROLIFERATION

One of the legacy of the Afghan War is the gun proliferation throughout Pakistan (not just in North West). Until and unless this evil is routed out we have no way of stopping such incidents. There is an underground gun industry in Pakistan which regrettably is thriving. We cannot change the situation over-night and so this is where the second reason comes in:

GUN CULTURE

This has to change. It is only when the society will start to frown upon those with arms/ guns ( I will go so far as to say even for defense) will we see any effect of the laws against gun possession. While one can appreciate the argument that it is necessary for protection on an individual level it is not a state-wide solution. Imagine 160 million guns and you will see what I mean. In the mix is our Police. On the local news channels Police were seen firing guns in the air at the end the siege. There jubilation notwithstanding, this is wrong. The obvious risk of bullets coming down and hurting someone aside the idea of touting guns in the air is no way of ending this menace. It sends the wrong message. The sooner we realize that greater/ bigger/ better guns can never be a response to smaller guns the better off we will be.

In conclusion, this should be a somber day for the Pakistani people one that should convince us that we have to take a u-turn on the gun culture. Although, and regrettably, I don't see that happening.

Shorter version posted at www://english.aljazeera.net/your_views
On the day the Police Academy in Lahore was attacked.

The future post-Benazir Bhutto

The tragic death of Benazir Bhutto is the darkest event - by far - in a country where bloodshed and turmoil has become a daily routine; whether it is in the Swat valley or on the crowded streets of Karachi. Ms Bhutto was buried by the mass crowd of Larkana next to her father. It was the same district where – in September 1996 – the crowd that had gathered to bury her brother, Murtaza Bhutto, pelted stones at her car forcing her to leave. (She was Prime Minister at the time). It seemed though that the people of Larkana had forgiven her as hundreds of thousands mourned her death.

Some people criticized her, not least because of the approval of her husband's exploits, but also due to the feudal system she represented, her political opportunism and her autocratic party rule (of which she was chairperson for life). But she was loved by many. She promised to root-out religious extremism and so was the darling of the West. She persisted that she represented the poor, and lately – and most importantly – her anti - establishment and Musharaf stance gave her much support amongst the masses. Her death, on the other hand, is being increasingly attributed to the extremist (religious) zealots, by both people in Pakistan and in the West.

The truthfulness of this is unclear. However the chain-reaction that this attribution has started has made some to ask, has the widely predicted 'clash of fundamentalism' in Pakistan now irrevocably begun? Firstly, the definition of the involved fundamentals is in order. In simple, it is the clash between, liberalism (concerning religion) and religious conservatism (or extremism as is widely used in media). It is also between the ideas of laissez faire (as is promoted by the West) and poverty, the list goes on. The unfortunate aspect of all this is that these fundamentals are badly understood. The Bush statement, that the murder is "… cowardly act by murderous extremists …" is a telling example; if nothing comes to mind, blame it on (religious) extremists and the same applies vice versa.

Critically though, the answer lay not in what the extremists say on both sides, or the identity of the murderer or his accomplices/ masters who were involved in her death, but in us, all of us. This so called clash has - up till now - been restricted to minor incidents and occasional ruptures (Red Mosque and recently in Swat valley) but has remained largely underground. Another limiting factor has been that the huge majority - being moderates- have been uninterested and to a large extent uninvolved. The influence of the two extremes has oscillated throughout Pakistan's history while the majority has remained in a semi-sleep. But has this changed? Have most of us changed? Again only time will tell.

No doubt than – for Pakistan – the crucial question would be, what happens now? What lies ahead? All we have heard so far is from the Western politicians, save Imran Khan who has called for boycott to election. On Thursday Bush called on Pakistan "to honour Benazir Bhutto's memory by continuing with the democratic process for which she so bravely gave her life." Gordon Brown, similarly, asked Musharaf to "stick to the course he has outlined to build democracy and stability in Pakistan." He further said that "the international community is united in its outrage and determination that those who stoop to such tactics shall not prevail". Others have been less optimistic. John McLaughlin, former acting director of the CIA, predicted that the chaos would last for weeks at least if not more. The western political pundits have also wasted no time to blather on their fantasy of a jihadi finger on a nuclear trigger.

Our politicians, on the other hand have decided not to (publically) dwell on it - probably rightly so as well. While we have already started to see the blame games, the speculations, the conspiracy theories already grappling many, I see no reason to participate in the same. Doing so would be fruitless and wasteful -for now - because it surrounds too many uncertainties. If politicians use it, it would be nothing but playing with emotions and political cheapness.

On the news of Bhutto's death, vandalism and arson attack started. Trains have been burned and businesses destroyed. People were –understandably – outraged and so the chaos continues. Unfortunately, we act before we think. It is high time we reverse that. There is no other time for greater need for calmness, than now. It is time for flexibility and tolerance, more so by the politicians themselves than anyone else. The decision not to contest election by the Nawaz Sharif's PML-N was probably too hasty and therefore did not help the situation. What is needed is careful reflection on the events with guarded action. I pray for the safety and betterment of everyone and Pakistan.

WELSH DEVOLUTION
And the role of Legislative Committee post Government of Wales Act 2006 (came into effect April 2007)

1. Background

The start of the Welsh Assembly was peculiar; it was a body with no formal division between the executive and the legislature and with no primary law making powers. Despite this, there was an immediate shift away from ‘strong committee system’, envisaged by the Government of Wales Act (hereinafter referred as ‘GWA’) 1998, to the cabinet model.[1] Secondly, when it came to a ‘National’ representative institution capable of making laws[2], it became painfully clear that the devolution was in reality partial.[3] A good example would be the first Orders in Council[4] which was highly restrictive in nature and granted very little substantive powers.

However, as the Richard Commission noted that it would be ‘inaccurate to think of the [1998 settlement] as an executive devolution.’[5] Nevertheless, the legislative competence has rapidly increased in the fields originally set out under A Voice for Wales.[6] R. Rawlings rightly notes that, not only the Orders in Councils awarding competence to the Assembly have become wider in their scope; they have also become more frequent.[7] These greater powers have meant that the Assembly has been able to legislate e.g. by way of ‘Assembly Orders’ in greater areas.

2. The legislative Committee under the 1998 Act

2.1. Legal Base

To review inter alia Assembly Orders, Section 58 (1) of the GWA 1998 required the creation of Legislative Committee. While drafting the 1998 Government of Wales bill, keeping in view the ‘corporate model’, it was anticipated that the Legislative Committee would act as a ‘species of internal audit’.[8]

2.2. Committee Composition

The guidance for the composition of the Committee is provided by Section 59 of the GWA 1998 and the Standing Order (hereinafter referred as ‘SO’) 11.1, which provides that there be at-least 7 and no more than 11 members. The SO also provides that none of the Assembly Cabinet members’ shall be a member of the Committee. Section 59 (2) of GWA requires that there needs to be a balance of representation, reflecting the number members of individual parties in the Assembly. The Chair of the Committee is elected by the Assembly and (s)he cannot be member of the political party in government.[9]

2.3. Responsibilities

Under Section 58 (4) of the GWA 1998, the Committee is required to consider any subordinate legislation before the Assembly.[10] The Section requires that the Committee bring to the Assembly’s attention any matter that would be of its concern.[11]

SO 11 provides the detailed responsibilities of the Committee and SO 11.7 sets out the matters that need to be considered by the Committee. For example, whether the proposed measure is within assembly’s legislative competence or makes unusual or unexpected use of power (ultra vires),[12] whether it has retrospective effect,[13] whether it has drafting defect or fails to satisfy legal requirements, [14] or has inconsistency with the English and Welsh text[15] etc. On the 12th of July 2005, the Assembly approved in Plenary two additions matters which the Committee must address when assessing a draft measure, first, whether the draft legislation is gender specific and second, if the measure is not made in both languages.

2.4. Operations

By its’ last meeting of the second committee on 20th March 2007, the Committee had reviewed in total 1513 pieces of legislation. In practice it would present its’ concerns, corrections and recommendations to the Assembly.[16] Of the recommendations, well over half were related to ‘defective drafting’ or ‘inconsistency with the English and the Welsh texts’.[17] The fact that in the eight year period, there has not been a single challenge in Court of any Assembly measure goes some way for the quality of work done by the Committee. Out of all the recommendations almost all of them had been adopted by the assembly.[18]Furthermore, in many cases, the legal advisors to the Committee were consulted at early stages of the drafting.

The working of the Committee is interesting,[19] it meet every week whenever the Assembly is in session, SO 8.22 requires that all draft be provided to committee members two days before the meetings and following the meeting the recommendations are laid before the Assembly almost always the same day. Despite the limited time if there is a need the relevant Ministers can be called in, should a problem/ confusion regarding some proposed measure arise.[20] It is also interesting to note that there is an informal co-operation that exists between the government and the committee through the respective lawyers and many disputes are settled through this backdoor channel.[21]

During our meeting with the lawyers to the Committee, on the 20th March 2007, two points were raised which are of general importance. First, the committee ensures that there is no discussion on the policy aspect of the proposed measures. Secondly, with current membership the level scrutiny that has been possible in the past will not possible in the future due the gradually increased work load. I will look at these issues in more detail in following paragraphs when looking at post-2007 approach.


3. Work of the Legislative Committee under Government of Wales Act 2006

3.1. General

We know that under the GWA the Assembly has primary law making powers and that there is formal division between the executive and the legislature. While, before the 2006 Act the Assembly was involved with all the Communication and Orders in Council giving powers to the Welsh Assembly Government, now it is quite possible that the Assembly will be left out. This situation gets compounded by the ever increasing number measure coming under executive procedure.

3.2. Proposed Operation

The Legislative Committee on 23rd May, 2006 approved a paper[22] on its future workings post-2007. As we have seen, major part of the time is taken up by the review of differences English and Welsh texts, it was suggested that the best way to produce bi-lingual legislation would be co-drafting as this will give the Committee greater time and freedom to work on other areas. However to achieve this, more drafters would need to be employed.[23]

It is also proposed that the current role of technical scrutiny be continued and committee should be free to consider the merits of the proposed measure. The proposed SO for the legislative Committee post 2007, makes this distinction very clear. Under the proposed SO 15 there are two kinds of matters, those which the Committee must consider when reviewing any measure and matters which the Committee may consider. Most of the matters that are under the must category are those carried forward from previous two committees, e.g. whether a proposed measure is intra vires and has no retrospective effect etc. The addition seems to be that the Committee is required to consider whether there has been an unjustifiable delay in the proposed measure being brought before the Assembly.

3.3. Discussion of Merits by the Committee

A novel development has been the addition of matters that the committee ‘may’ consider. Although it seems that care has been taken to ensure the Committee room does not become an arena for policy debates. For instance, it was proposed by the committee paper[24] that matters discussed will not be of policy related, but only discuss the merits. For example, whether the proposed measure is the most effective way of achieving the objective it seeks to attain. To achieve this, the Committee may consider, inter alia the impact of the measure on the Welsh Consolidation Fund, e.g. if it requires payments to be made to the Government or results in a commitment on behalf of the Assembly. Others matters that may be considered are public policy, inappropriate application of EC law, or unsatisfactory outcome relating to the proposed measure etc.[25]

It is worth highlighting that the discussion on merits will invariably require a discussion on policies. Therefore, it will be for the Chair to ensure that the debates stay on track.

It may also be suggested that even if the Committee only discusses the merits of the proposed measures, the committee should not only be in a position to invite the relevant minister (or any expert on his/ her behalf) to give evidence, but also invite independent (non-partisan) experts to give their opinions.

Further more the Committee should be in a position to review any proposed Assembly measure which will be confer extra powers to the Welsh Assembly Government. [26] This will act as an extra check. However it is possible that there are other committees that would be better positioned to scrutinize the executive.[27]


4. Conclusion

There is no formal channel of communication between the Welsh Assembly and the Westminster Parliament. This connection is important, firstly because now the Welsh Assembly Government is a separate legal body and secondly, to ensure that there is an appropriate check on the powers being conferred to the Welsh Ministers directly via Order in Councils. In order to achieve this, the legislative committee can act as the connection between the Welsh Assembly and the UK Parliament. The Committee is required to report on the powers being given directly to Welsh Minister.[28] It can bridge the apparent communication gap when it is reviewing these proposed Orders in Council.

Lastly I would like to highlight that the committee members and staff are increasingly being made to work to their limits, under the current setup. Although the meetings are held once a week, if any greater work load is added there is a risk that the quality of will be reduced. Therefore if greater technical scrutiny is to be carried out, the number of staff or members, as it is appropriate, will need to be increased.




Bibliography

Ø R. Rawlings, Delineating Wales, university of Wales Press

Ø Devolution law making and the Constitution, R. Rawlings and Robert Hazell, Imprint Academic, 2005

Ø Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (The Richard Commission, 2004)

Ø K. Patchett, ‘Principle or Pragmatism? Legislating for Wales by Westminster and Whitehall’ in Hazell and Rawlings (2005 Imprint-Academic)

Ø Alan Trench, The Dynamics of Devolution, 2005 Imprint-Academic

Reports and Articles

Ø Legislative Committee, Second Assembly: Third Annual Report 2005-2006

Ø Legislative Committee, Second Assembly: Fourth Annual Report 2006-2007

Ø David Lambert, The Government of Wales Act- an Act for Laws to be Ministered in Wales in like for as it is in this Realm? 30 C. L. R. 60

Websites

Ø http://www.assemblywales.org/bus-home/bus-committees.htm

Ø http://www.bbc.co.uk/wales/history/sites/language/pages/devolution.shtml

Ø http://www.answers.com/topic/government-of-wales-act-1998

Ø http://new.wales.gov.uk/?lang=en

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[1] See M Laffin and A. Thomas, ‘Designing the National Assembly for Wales’ (2000) 53 Parliamentary Affairs 557
[2] See for example T. Jones and J. Williams, Wales as a Jurisdiction, [2004] Public Law 78
[3] R. Rawlings, Law making in a Victual Parliament: The Welsh Experience, Chapter 3 in, Devolution law making and the Constitution, Imprint Academic, 2005 page 72
[4] The National Assembly for Wales (Transfer of Functions) Order 1999 (S. I. 1999/672)
[5] Richard Report, Chapter 14, Para 7
[6] Ibid, Chapter 9
[7] See supra note 3
[8] Memorandum from the Leader of the House, 27th Report of the Joint Committee on Statutory Instruments, HC 33 of 1997-8, at xxvii
[9] GWA, section 59 (3)
[10] GWA 58(4) a
[11] GWA 58(4) b
[12] SO 11.7 (i)
[13] Ibid (ii)
[14] Ibid (iii)
[15] Ibid (vi)
[16] Legislative Committee, Second Assembly: Third Annual Report 2005-2006
[17] Ibid
[18] Legislative Committee, Second Assembly: Third Annual Report 2005-2006, page 8
[19] Though the work itself as, R. Rawlings said, is ‘exceptionally tedious’, standing for the grimmer realities of the life of the Assembly as a legislature!
[20] SO 11.6
[21] R. Rawlings, Law making in a Victual Parliament: The Welsh Experience, Chapter 3 in, Devolution law making and the Constitution, Imprint Academic, 2005 page 87
[22] Scope and remit of the legislative Committee post-2007. Although the complete text was not availably to this writing, the final recommendations were available in the annual report of the legislative committee2005-06.
[23] Ibid
[24] Ibid
[25] Proposed SO 15.3
[26] Ibid
[27] E.g. Committee for the Scrutiny of the First Minister.
[28] see proposed SO 15.6 (ii)

Appurtenant Rights

INTRODUCTION

The Law commission once described the law on appurtenant rights to land as “illogical, uncertain, incomplete and inflexible”[1], this is especially true the in areas such as covenants and easements. Our discussion starts from the foundation land law[2]. It is a feature of our law that people deal with are only estate or interests and not land itself. So stricto senso, land law is a collection of rights, i.e. rights of one individual against or in-relation to another. Among these rights there are some minor rights[3] and might be referred as appurtenant rights.

These rights can be divided into two distinct categories. First are incorporeal hereditament[4], which are well settled private rights on land, where the grantee does not occupation of the land[5], e.g. easements, profit[6] and rentcharges[7] The second category of rights, called covenants, or Intangible rights[8] are those rights that are created by agreements in the form of a contract (under seal)[9] and can be of many kinds. We will look at both of these categories individually.

INCORPOREAL HEREDITAMENT

As suggested earlier, these are specific rights whose, nature, creation and enforcements have been defined by judicial rulings[10] and statutes[11]. The most common kind of incorporeal hereditament are easements and profits. We will Look at there nature, rules of creation and enforcement separately and the reforms that need to be taken.

NATURE AND ENFORCEMENT

a) There Must Be Dominant And Servient Tenement and they must be different persons

The requirement that there needs to be dominant[12] and servient[13]tenement[14] is true for easements. This rule emanates from the general principle that one cannot have a claim against oneself[15]. The Courts have refused accept rights to lie in gross because, as it has been suggested, new and unusual rights might be created[16]. It is generally argued that the appropriate approach to such rights is contractual licenses.[17]

The strictness of the rule that the dominant and servient tenement must be different persons[18] has resulted in the concept of quasi-easements. The rule is relatively straight forward i.e. where easements would have existed but for the reason of single owner ship and subsequent conveyance results in two different owner easement come into existence by virtue of this quasi-easements. A typical scenario is where a land lord sells her land to the tenant.

b) The Right Must Accommodate the Dominant Tenement

The scope of this requirement has generally been difficult to define. The courts have used different criteria e.g. proximity[19] to define the scope of the rule. Generally these rights are created between neighbors[20] but this is not necessary. Often cited example is Pugh vs. Savage[21] however an older authority is the case of Re Ellenborough Park.[22]

The courts also refer to the nature of the right claim. This is not as straightforward. Often cited conflicting cases on the issue are Moody vs. Steggles (1879)[23] Hill vs. Tupper (1863).[24] In the former the courts recognized the existence of an easement and not in the latter.[25] Plainly, the question is whether easements should be recognized or not.

It is submitted that easements in gross should be recognized by statute.[26] Support can drawn from U.S. law where it has been held that easements can lie in gross[27]. In some states different phraseology is used; equitable servitude[28]. It may also be argued that in U.K. land law some easements in gross are recognized but they aren’t termed as easements. See for example the right to maintain pipelines, sewers, to occupy pews in churches, franchises and manors etc[29]. The Courts have merely called them “rights in gross analogous to easements.”[30]

The Courts have generally refused to accept this right on three grounds, one, recognition of the right would result in unusual right being created[31]. It is submitted that this in it self is not a sufficient reason to deny a party to deal with appurtenant rights. Second, and a more plausible argument is that, allowing such rights would result in unnecessary burden being placed on the servient tenements. It is submitted that there is no statistical evidence to suggest that such will be the case. Even if we accept this argument there are two strong counter arguments. In the modern land law where all the rights and burdens on land can easily be discovered from registers and more recently the introduction of Home Information Pack (HIP)[32]. So the current situation is considerably different from what it used to be hundred and fifty years ago. The second way is making a fast scheme under which these appurtenant rights that become redundant or out of use, to be removed, e.g. by way of a court order. This method can be based on the scheme similar to that provided by section 84 of Law of Property Act 1925 for restrictive covenants. Thirdly, it has been argued that, judicial recognition of such rights will create more confusion and problems than solutions. The courts’ reluctance in this area of law is understandable because this is such a complex area of law but this creates a compelling case for parliament’s intervention after a careful study by the law commission.

c) The right must lie in grant and nature mustn’t substantially change

The essence of this rule is that the right claim must be clear and precise. Claim for the use of land for general recreation is too vague[33] or if the land affected (servient tenement) is not specified by the deed.[34]

Second part requires that nature of the claim should not change over time. So if there is a substantial change over time the right might not remain enforceable. Mackenzie and Phillips identify two types of cases that can arise, if the land changes character, or the owner of dominant tenement uses the easement for the benefit of the land not specified by the deed. The area is sufficiently clear after the recent cases of Atwood vs. Bovis Homes Ltd[35] and Peacock v Custins[36]. [37]

d) Recognition of new easements and negative rights

Generally the courts have said that the law should be prepared to accept changing social circumstances and hence the creation/ judicial acceptance[38] of these new rights are not closed.[39] Having said that, the Courts have generally been reluctant to recognize negative rights,[40] indeed it has been argued that court will not recognize any new one except the ones that already exist.[41] The two rights that do exist are right to light, recognized by section 3 of the Prescription Act 1832, and right to support from the case Darley Main Colliery vs. Mitchell (1886).[42]

CREATION

This is arguably one of the most complicated areas in the law of appurtenant rights. But before we go on to the detail, I must mention a few words on the procedure requirement of deed. We know that under Law of Property Act 1925 easements,[43] rentcharges[44] can only be legal if they fee simple or for a term of years absolute. We also know that Section 52(1) required that for an easement to be legal it needs to be created by deed.[45]

It is submitted that the requirements of deed under Section 52 (1) be abolished. The requirement that for a transfer of legal interest a deed needs to be sealed is old and out dated. There has been a legislative trend away from the requirement[46] as well. The Explanatory Memorandumof Land Registration Act, 2002, on e-conveyancing, says[47] that "the section does not disapply the formal statutory or common law requirements relating to deeds and documents but deems compliance with them. When the section applies, the electronic document is therefore to be treated as being in writing, having been executed by each individual or corporation who has attached an electronic signature to it, and, where appropriate, as a deed."[48]

Moving now to the modes by which these rights are created. In general there are three ways[49]. These are, a) expressly created reservations and grants, b) implied reservations and c) presumed grant or prescription/ long use. A person can claim a right by virtue of prescription either under the common law, the doctrine of lost modern grant or under the Prescription Act 1832.

EXPRESS RESERVATION / GRANT

The concept of express reservation is relatively straight forward and it need not be repeated here. However the rules on express grant are more complicated. It is worth remembering that Section 62 of the Law of Property Act 1925 operates to import words in a transfer making all easements run with the land that were enjoyed in the past. The Courts, on the other hand, following the case of International Tea Stores Co. Ltd vs. Hobbs[50] have found a peculiar interpretation so that the section changes ordinary licenses to full easements upon conveyance. It is submitted that this approach needs to be examined. It is difficult to understand how a personal arrangement can change to appurtenant right. Historically, Section 6 of the Convayencing Act 1881 (predecessor to the Section 62) was enacted to simplify and shorten the rights that already existed[51]. See Also the reservation expressed by fox L.J. in Dewsbury vs. Davies when he said “it seems rather and odd result that a section whose purpose was to shorten conveyances should have the effect that, turning what was, as here, a permissive and precarious right into a irrevocable easement[52].” The Law Commission[53] has suggested an amendment to section 62. Upon division of land, the purchaser would have

(a) any facilities which were previously available to the occupier of that part of the land and which in all the circumstances it is reasonable to contemplate as continuing; and
(b) any new facilities which are either necessary to the proper enjoyment of that part at the time of the transaction or which in all the circumstances it is reasonable to contemplate as having been intended by the parties to be imposed upon completion of the transaction.

(Note: That the rule of contrary intention under Section 62 should continue to apply.)

IMPLIED RESERVATION OR GRANT

The courts are generally reluctant to imply reservations but there are certain situations where this might be possible. A likely scenario is where the estate is land locked[54] or in the situation where it could be inferred that parties did intend to create a reservation[55]. A grant can also be implied by te rules of Wheeldon vs. Burrows[56]Thesiger L.J. said

“ … on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, … all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners …”[57]

Note that this rule is similar to Section 62 (especially after the Law Commission suggested reform to it.) It has been proposed in the Land and Conveyancing Law Reform Bill 2006 (Irish Parliament) Section 38 that the rule be abolished. The provision replacing the rule is provided by section 38 (2) is similar to that provided by the Law Commission in its 1971 report as discussed above.

PRESCRIPTION

Third and final way by which easement can be created are by prescription i.e. long use. The rules under common law, the fictitious doctrine of lost modern grant and persecution Act 1832 are out dated and complex. It has been suggested[58] that the doctrines of lost modern grant (which has long been discredited for been to archaic) and prescription at common law be abolished. It has been suggested that a single period for of twelve years[59] for all easements and profits be created. The legal right might only be obtained by virtue of a court order and than registration of the order in the appropriate register[60]. A commendable discovery in the Land and Conveyancing Law Reform Bill 2006 (Irish Parliament) is rule under Section 37. The section introduces the extinguishment period. i.e. the right once the there has been no use for over 12 years is extinguished. This is undoubtedly an impressive innovation[61].

It is submitted that if the suggested reforms are adopted into the law relating to easements will be greatly improved. However some caution need to be taken in certain areas, for example the discretion of the court to give orders needs to be clearly defied etc

INTANGIBLE RIGHTS OR COVENANTS

NATURE

These are the second type of appurtenant rights. As freehold owners, people generally have the freedom to use their estate in which ever way they want. They may sell some rights or create specific. In the current state of the law some these rights are recognized as appurtenant e.g. some restrictive covenants but not others e.g. positive covenants.[62] In general, it has been argued in the past that covenants are contracts and by virtue of their nature and the doctrine of privity[63] a third party, e.g. a subsequent buyer, cannot be held burdened/benefited by it. This rule had been criticized by a number of authors[64] and members of the judiciary[65] until The Contracts (Rights of Third Parties) Act 1998 came into force.[66] Coming back to covenants, they generally take the form of land restriction/ obligations. These covenants are widely used especially in areas such as flats where the individual flat are separately sold. Property developers have used various ways[67] to come around these rules of covenants. These back door channels and the rigid rules of covenants warrant a general simplification of the law.

CREATION & ENFORCEMENT

Covenants take the form of contractual arrangement and thus can be of any kind. All the rules of contract law apply. The question we are mostly concerned here is whether benefit/ burdens runs with the land after conveyance. Again the rules are complex and need of reform, for example the courts treat statutory legal and equitable easements considerably differently[68] and the contrasting approach taken by the courts to restrictive and positive covenants at times difficult to fathom.

STATUTE

By virtue of Section 56 of the Law of Property Act 1925 a person may take benefit of a covenants relating to the land after the purchase[69]. Further Section 78 has the effect that burdens are deemed to intend to pass. Under Section 136 of the Law of Property Act 1925 an easement can be assigned to any third party[70].

COMMON LAW

At Common law the approach taken by the courts differ in relation to positive and restrictive covenants. With regard burden, after the case of Austerberry vs. corporation of Oldham[71] it has been a general rule that burden does not run in law; i.e. after conveyance the burden shall not run with the land.[72] This is not the case with benefits as they can run in law after conveyance, under Smith & Snipes Hall Farm Ltd vs. River Douglas Catchment Board[73].

EQUITY

Under the equitable rule of Tulk vs Moxhay (1843) 2 Ph. 773 the Courts of equity took a different approach to that of the common law. Lord Cottenham said that if equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from that of the party from whom he purchased. The judgment did not restrict the application of the rule restrictive covenants but has been construed as such[74]. This interpretation was challenged[75] in Rhone vs. Stephens [1994] 2 A.C 310 however the House of Lords refused[76] and confirmed the rule in Haywood.

The Courts take different approach to rights claimed on registered land and unregistered land. In unregistered land, if the covenant is registered[77] by virtue of the Section 198 of the LPA 1925 it will constitute actual notice and will bind any purchaser for money or money’s worth. If it is an unregistered right, the Section 4(6) of Land Charges Act 1972 will render it void and thus unenforceable. In registered land a covenant must be entered into as a notice to bind a purchaser.
For a benefit to run in equity there are the complex rules of Renals vs. Cowlishaw[78] i.e. by annexation, assignment; and Scheme of development.

As a general rule currently positive covenants do not run at common law or equity (subject to the exception of rule in Halsall vs. Brizell[79] and the rules in the Common Hold and Leashold Reform Act 2002). As we have seen the different treatment of covenants under statue, common law and equity have rendered the law too obscure.

In pursuing possible reforms, again, useful guidance may be taken from the Land Law and Conveyancing Law reform Bill 2006. For simplification purposes the Bill abolishes all the rules under common law and equity[80]. The Bill purports to run all the benefits and burdens in law thereby completely deviating from the old principle in Tulk and Austerberry. It should be noted that when such an expansive extension to the law is created the ways by which these covenants can come to an end need to be wider than the mechanism provided by Section 84 of Law of Property Act 1925. The Courts should be able to remove a covenant a) is interfering with the reasonable enjoyment of the property; or b) has become absolute and the grantee is refusing to negotiate a demise. In such a case a Court should be in a position to end the covenant and award any compensation to the grantee or as appropriate.

It can been seen now from the above discussion that the law relating to appurtenant rights is need of reform and a number of reforms have been suggested the Law Commission is currently working on deferent types of appurtenant. An interesting observation is that it seems after any of the suggested reforms coming into force, the rules of corporeal hereditament and covenants are converging. In fact the Law commission did try to bring them together[81] but in retrospect they might be seen as too ambitious. However it is submitted that there nature is quite distinct and they both serve separate purpose for now and need to be treated as such. The reason why those reforms have not resulted into legislation is debatable. Is it political? Maybe Conveyaning Law is not on the priority list of Government legislations. If that is the case it certainly does not reflect the need of reform in this area of law.

Bibliography

Books

Ø Text book on Land Law, Judith-Anne Mackenzie & Mary Phillips, 10th & 11th Ed, OUP

Ø Modern Land Law, Mark P. Thompson, 3rd Ed. OUP

Ø Neighbours and the Law, John Pugh-Smith, 2nd ed., Sweet & Maxwell

Journal Articles

Ø Law Commission: Transfer of Land. The Law of Positive and Restrictive Covenants, P. Polden The Modern Law Review, Vol. 47, No. 5. (Sep., 1984), pp. 566-576.

Ø Enforcement of Positive Covenants Affecting Freehold Land Nigel P. Gravells L.Q.R. 1994, 110(JUL), 346-350

Ø Judicial Supervision of Servitudes by Uriel Reichman, The Journal of Legal Studies Vol. 7, No. 1. (Jan., 1978)

Ø Commonhold: A Prospect of Promise D. N. Clarke The Modern Law Review, Vol. 58, No. 4. (Jul., 1995), pp. 486-504.

Ø Subdivided Buildings: Developments in Australia, Singapore and England, Alice Christudason The International and Comparative Law Quarterly, Vol. 45, No. 2. (Apr., 1996), pp. 343-364

Ø A Birthday Present for Lord Denning: The Contracts (Rights of Third Parties) Act 1999, Catharine MacMillan, The Modern Law Review, Vol. 63, No. 5. (Sep., 2000), pp. 721-738.

Ø Assignability of "Easements in Gross" Columbia Law Review, Vol. 7, No. 7. (Nov., 1907), pp. 536-538.

Ø Easements of Light and Air over Streets, Harvard Law Review, Vol. 15, No. 4 (Dec., 1901), pp. 305-306.

Ø The Assignability of Easements in Gross in American Law, Lewis Mallalieu Simes, Yale Law Journal, 32 Yale L.J. (1922-1923) page 814- 815

Ø Easement Draftsmanship and Conveyancing, Robert Kratovil, California Law Review, Vol. 38, No. 3. (Aug., 1950), pp. 426-451.

Ø Michigan Law Review, Vol. 22, No. 6. (Apr., 1924), pp. 521-540.

Ø On Duties to Oneself, Marcus G. Singer, Ethics, Vol. 69, No. 3. (Apr., 1959), pp. 202-205.

Ø Lawyers and Land Law Revisited, Avner Offer, Oxford Journal of Legal Studies, Vol. 14 Page 269- 278

Ø A Study of Rights Incident to Realty. I. Real Property Rights Reclassified Henry Upson Sims

Ø Virginia Law Review, Vol. 7, No. 5. (Feb., 1921), pp. 327-342.

Ø The Assignability of Easements, Profits and Equitable Restrictions Charles E. Clark The Yale Law Journal, Vol. 38, No. 2. (Dec., 1928), pp. 139-164.

Ø Exception and Reservation of Easements Harry A. Bigelow; J. W. Madden Harvard Law Review, Vol. 38, No. 2. (Dec., 1924), pp. 180-201.

Ø Theories of Property and Economic Development Joshua Getzler Journal of Interdisciplinary History, Vol. 26, No. 4. (Spring, 1996), pp. 639-669.

Ø The Content of Covenants in Leases Harry A. Bigelow Michigan Law Review, Vol. 12, No. 8. (Jun., 1914), pp. 639-659

Ø Contracts. Contracts for Benefit of Third Party. Right to Sue, Virginia Law Review, Vol. 3, No. 6. (Mar., 1916), pp. 464-466

Ø Some Fundamental Legal Conceptions as Applied in Judicial Reasoning Wesley Newcomb Hohfeld

Ø The Yale Law Journal, Vol. 23, No. 1. (Nov., 1913), pp. 16-59

Ø Metamorphoses and Section 62 Of the law of Property Act 1925, Louise Tee, Conveyancer and Property Lawyer, Conv. 1998, Mar/Apr, 115-124

Ø “Lateral Support of Buildings from Adjoining Land?” Tang Hang Wu, [2002] 66 Conv 237.

LAW COMMISSION REPORTS

Ø Law Commission Transfer of Land: Appurtenant Rights(1971) Paper 36

Ø Transfer of Land: The Law of Positive and Restrictive Covenants (HC201)

Ø Transfer of Land: Implied Covenants for Title (HC437)

Ø Law Reform Commission (Ireland), Report On the acquisition of easements and Profit a prendre by Prescription (LRC 66 - 2002)

Ø The Law reform Commission (Ireland), Report on Land Law and Conveyacing Law: Positive Covenants over freehold land and other proposals (LRC 70 - 2003)

Ø Law Reform Commission (Ireland), Consultation paper on reform and modernisation of land law and conveyancing law (LRC CP 34 – 2004)

Ø Law Reform Commission (Ireland), Report on reform and modernisation of land law and conveyancing law (LRC 74 - 2005)

E-Journal

Ø The Requirements of Writing for Electronic Land Contracts – The Queensland experience compared with other jurisdiction, E LAW Murdoch University Electronic Journal of Law by S. Christenser, W. Duncan and R. Low. http://www.murdoch.edu.au/elaw/issues/v10n3/christensen103.html
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[1] Law Com. W.P. No. 36 Appurtenant Rights (1971) see Para 31
[2] See for general debate S.F.C Milsom The Legal Framework of English Feudalism (Cambridge University Press 1976)
[3] Consultation paper on Reform And Modernisation Of Land Law And Conveyancing Law (LRC CP 34 – 2004) see page 91
[4] Neighbours and the Law, John Pugh-Smith, 2nd edition, Sweet and Maxwell see page 33
[5] See further below on page 2
[6] They are also referred as profit-à-prendre meaning "right of taking"
[7] The creation of all new rentcharges has been prohibited by the Rentcharges Act 1977 ( subject to certain exception, see Land Registry Practice Guide 41 Oct 2005
[8] See Page 19 Mark P. Thompson 3rd edition, Oxford Press. See also Page 69.
[9] Section 52 of the Law of Property Act 1925 requires that all convayecing of legal interest needs to be done by way of a deed
[10] An ideal example of a new right (check which right it was) being recognized in Re Ellenborough Park [1956] Ch 131 or [1955] 3 ALL ER 667
[11] See Prescription Act 1832 section 3. Also building developers can create statutory easements for the provision of essential services under section 88B Conveyancing Act 1919, see also Section 68 of the Countryside and Rights of Way Act 2000 under which a grantor can grant statutory right of way for the access of vehicle.
[12] Land on which the easement is to be enjoyed
[13] Land which is burdened with an easement
[14] Rule in Re Ellenborough Park [1955] 3 ALL ER 667
[15] For a discussion on the issue see Discussion On Duties to Oneself Marcus G. Singer Ethics, Vol. 69, No. 3. (Apr., 1959), pp. 202-205
[16] Mark P. Thompson 3rd edition, Oxford Press Page 474
[17] See below
[18] See Re Ellenborough Park infra note 22 page 680
[19] See Bailey vs. Stephens (1862) 12 C.B (N.S.) 91
[20] See Part 7 of explanatory Notes to the Land Law Reform bill 2006 of the Irish Parliament.
[21] [1970] 2 QB 373
[22] [1955] 3 ALL ER 667 see page 669
[23] 12 Ch. D. 261
[24] EWHC Exch J26
[25] On a glance both of the rights claimed seem to facilitate the business. The reasons for the conflict are also disputed. M. P. Thompson argues that in the former the right claimed supported the business whilst in the later the claim was the business itself. Mackenzie and Phillips argue that in former the business had been there for a very long time and had become intrinsic part of the land where as in the later the claimed right supported the business i.e. it was plainly an ‘easement in gross’ which the court refused to accept.
[26] see for example M F. Sturley ‘Easements in gross’(1980).
[27]
[28] Judicial Supervision of Servitudes by Uriel Reichman, The Journal of Legal Studies Vol. 7, No. 1. (Jan., 1978), pp. 139-164
[29] For further discussion see Yale Law Journal Issue 32 page 815 and for U.S. approach to easements “The Assignability of Easements in Gross in American Law” by Lewis Mallalieu Simes, Michigan Law Review, Vol. 22, No. 6. (Apr., 1924), pp. 521-540.
[30] See Vestry of St. Mary vs. Jacobs (1871) L. R. 7 Q. B. 47
[31] Mark P. Thompson 3rd edition, Oxford Press Page 474
[32] under the Housing Act 2004
[33] Mousney vs. Ismay (1865) 3 Hurl. & C. 486 However see Re Ellenborough Park where the right claimed was general recreation.
[34] Chaffee vs. Kingsley [2000] 79 P & CR 404
[35] 1 WLR 1815 Ch 371. Here the land changed character (agriculture to business) the easement continued because there was not a substantial increase, had that been the case the court would have been reluctant to accept the easement
[36] [2002] Here the court held that the right could not be used for the benefit of an adjacent property to the dominant tenement that the owner of dominant tenement later bought as that property was not mentioned in the deed creatig the easement.
[37] Note that space does not permit any further discussion where as there is certainly some anomalies in the rule the require addressing.
[38] London and Blenhein Estates Ltd vs. Ladbroke Retail Parks Ltd [1992] 1 W. L. R. 1278 at 1287 per Judge Baker Q.C and see also Horton vs. Tidd (1965) 196 E. G. 697
[39] Despite this many new rights have been refused in the recent past, these include right to privacy (In Browwne vs. Flower [1911] 1 Ch. 219), right to uninterrupted flow of air (In Bryant vs. Lefever (1879 4 C.P.D 172) and right to uninterrupted flow of television signals (In Hunter vs. Canary Wharf Ltd [1997] A.C. 655) have all been held not to be easements.
[40] Subject to two exceptions, which are Right to Uninterrupted light (section 3 of the Prescription Act 1832) and Right to support (Darley Main Colliery vs. Michell (1886) 11 App. Cas. 127. For a discussion on the issue see Tang Hang Wu “Lateral Support of Buildings from Adjoining Land?” [2002] 66 Conv. 237
[41] See Page 477 Mark P. Thompson 3rd edition, Oxford Press. However MacKenzie and Phillips 10th Edition (at page 501 suggest that any new easement might be recognized provide that it satisfies the Re Ellenborough test and it, doesn’t exclude the servient owner, is in-fact a right and does not involve expenditure.
[42] 11 App. Cas. 127
[43] Section 1(2) (a) see also the effect of Section 187 of the Law of Property Act 1925
[44] Section 1(2) (b) as amended by the Rent Charges Act 1977
[45] Exception is by prescription and the easements created under the Section 31(7) of the Common Hold and Leasehold Reform Act 2002. See below for details on prescription.
[46] See the application of Section 31(7) of the Common Hold and Leasehold Reform Act 2002 and Section 98
[47] Para 148
[48] See for further discussion The Requirements of Writing for Electronic Land Contracts – The Queensland experience compared with other jurisdiction, E LAW Murdoch University Electronic Journal of Law by S. Christenser, W. Duncan and R. Low.
[49] Note also that the rules on grants and reservations are different
[50] [1903] 1 Ch. 165
[51] Conv. 1998, Mar/Apr, 115-124 Conveyancer and Property Lawyer, Metamorphoses and Section 62 Of the law of Property Act 1925
[52] Ibid
[53] Law Com. W.P. No. 36 Appurtenant Rights (1971)
[54] Pinnington vs. Galland (1853) 9 Exch. 1
[55] Peckham vs. Ellison [1998] 31 H.L.R. 1031
[56] (1878) 12 Ch. D. 31
[57] (1878) 12 Ch.D. 31 Page 50.
[58] See Law reform Committee (14th Report, Cmnd 3100 ); See also Land and Conveyancing Law Reform Bill 2006 (Irish Parliament) Section 31-48
[59] Ibid also see section 31 of the Bill
[60] Ibid section 32-33
[61] It should be noted that the scope of the rule is very restrictive and it only applicable to acquisitions of easements by implications. The rule can be expanded to expressly created and registered easements since twelve years is a reasonably long period of inactivity and it is highly unlikely that once a right has not been used for over 12 years would suddenly come back into use.
[62] Subject to one exception of fencing
[63] The authority for the rule are the cases of Price vs. Easton 4 B. & Ad. 433, the more famous is Tweddle v. Atkinson (1861) 1 B&S 393.For a brief discussion on the issue see Contracts for Benefit of Third Party. Right to Sue Virginia Law Review, Vol. 3, No. 6. (Mar., 1916), pp. 464-466 and http: //en. wikipedia.org / wiki/ Privity_of_contract
[64] See for example Removing a Blot on the Landscape: The Reform of the Doctrine of Privity. Journal of Business Law, Meryll Dean [2000] JBL 143.
[65] Para 2.64-2.69 of the Report by the Law Commission Privity of Contract: Contracts for the Benefit of Third Parties (Law Com No 242 Cm 3329 July 1996)
[66] This legislation does relax the doctrine of privity and under section (1) rights and benefit directly conferred by the contracting parties can be enforced by the benefited party against either of the contracting parties.
[67] E.g. very long leases, see further below
[68] Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403, 46 JP 356
[69] At first it was used to stop the application of Doctrine of Privity of Contract by Lord Denning in Drive Yourself Hire Co (London) Ltd -v- Strutt [1954] 1 QB 250 in which he said “It is often said to be a fundamental principle of our law that only a person who is a party to a contract can sue on it. I wish to assert, as distinctly as I can, that the common law in its original setting knew no such principle. Indeed, it said quite the contrary. For the 200 years before 1861 it was settled law that, if a promise in a simple contract was made expressly for the benefit of a third person in such circumstances that it was intended to be enforceable by him, then the common law would enforce the promise at his instance, although he was not a party to the contract.” . This expansive application of the section was later curtailed by the House of Lords in Beswick vs. Beswick (1966) Ch. 538, [1968] AC 58. However as discussed this position has changed for covenants entered into after 2000 in which case The Cotracts (Rights of Third Party) Act 1998 came into force see section 1 (3) and 10 (2) .
[70] Page 539 MacKenzie and Phillips, 10th Edition, Oxford University Press.
[71] (1885) 29 Ch.D 750
[72] See also Rhone vs. Stephens [1994] 2 A.C 310
[73] [1947] 2 K.B. 500. There are certain requirements that need to be satisfied and the most important of whom is that the covenant must touch and concern the land, successor in title must have legal estate, the benefited land be easily identifiable from the deed and the parties must intend for the benefit to run (This last conditions is automatically satisfied by section 78 of the Law of Property Act 1925). See Page 502 - 505of Mark P. Thompson 3rd edition, Oxford Press
[74] Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
[75] Even Nourse L.J. at the Court of appeal expressed his view that the Rule in Tulk vs. Moxhay (1848) 2 Ph. 774 should extend to positive covenants
[76] It is interesting to note the grounds on which the court based it’s decision. Lord Templeman said that “… your Lordships were invited to overrule the decision of the Court of Appeal in the Austerberry case. To do so would destroy the distinction between law and equity and to convert the rule of equity into a rule of notice. It is plain … that judicial legislation to overrule the Austerberry case would create a number of difficulties, anomalies and uncertainties and affect the rights and liabilities of people who have for over 100 years bought and sold land in the knowledge… that positive covenants affecting freehold land are not directly enforceable except against the original covenantor. Parliamentary legislation to deal with the decision in the Austerberry case would require careful consideration of the consequences …” (emphasis added).
[77] It needs to be registered as a Class D (ii) under Section 2 of the Land Charges Act 1972
[78] (1878) 9 Ch.D. 125 at 129
[79] [1974] Ch. 169. The rule suggests that you cannot enjoy rights without accepting the correlative burden
[80] Section 37 of Land Law and Conveyancing Law reform Bill 2006
[81] The commission proffered the comprehensive code of “Land Obligations”

EUTHANASIA and RIGHT TO DIE

A case study of Dianne Pretty

Imagine we live in a world where medical science has made such advancements that it is possible to predict the personality; behavior and life of a person. Just imagine that science can (to a level of statistical precision) predict the life expectancy and death of a person at any time. In other words the uncertainties regarding illnesses that exist today are no longer their.

This dream is far from reality and even though science has made astonishing discoveries; improved the standard of life and found cure for diseases, but there is a long way to go. Motor Neuron Disease is such a disease to which science has not yet been able to find an answer. This was the same disease from which Mrs. Dianne Pretty was suffering. It is gradual degeneration of nerves that ultimately result in death. This fact was known to Mrs. Pretty and she wanted to end her life while she was in her senses and at a time she thought appropriate. She had perfectly legal right to do that[1]. However due to her inability caused by the same disease meant that she could not physically kill herself. She required assistance and wanted her husband to do that. This was not legal under the current law of the England and Wales. Suicide Act [hereinafter ‘the Act’] s2 (1) states that “a person who aids … another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years”.

Further, a consent from the Director of Public Prosecution[2] (hereinafter D.P.P.) was needed before a case could be brought before the court. Mr. Pretty was willing to help his wife but only if D.P.P gives an undertaking not to prosecute him. The D.P.P refused to give such an undertaking. It needs to be added that this was the norm and he was entitled to do follow it. Against this decision Mrs. Pretty brought judicial review proceedings at the High Court and than House of Lords. When House of Lords rejected her claim of a right to be assisted in dying she brought proceeding in-front of the European Court of Human Rights (hereinafter ECtHR) for breach her Convention rights 2 (Right to life), 3 (Prohibition of torture), 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion), and 14 (Prohibition of discrimination).

Finally on 29 April 2002 the ECHR unanimously rejected Mrs. Pretty contention of breach of any Convention Right[3]. The decision immediately ran into criticism by popular media and right to die movements. However it is submitted that we can spare the media for falling to the situation. The circumstances faced by Mrs. Diane Pretty were truly frightening[4] and it is in this context the media’s response can be understood.

The starting point of our discussion is the interest of an individual against, inter alia social well being of a state. This question though in its’ very basic state, is highly subjective and value laden and therefore eludes any legal definition or rigidity.

Having said that, and as Dr. Campbell explains, our problem does not end here. It runs much deeper. That is, before we even consider the question of the interest of state versus the right of the individual we need to first overcome our prejudice against illnesses and disabilities. She argues that before we start talking about the right to die we fully appreciate the value of life.

However prior to our own discussion; we first need to identify the nature of our rights’ discourse i.e. philosophical, legal, or political. In legal forums in UK the request to end life had not come up before; and the debates in media are often of a social and political level. Same is true for Parliamentary debates[5]. I am not suggesting that all of the discussions are mutually exclusive or the distinction is easy to maintain; rather, if we just look at an argument in its context we can better appreciate it. And it is through this prism we need to look at Dr. Jane Campbell’s arguments and her apparent hostility to the media.

A humble effort is made henceforth to identify the difference between these natures in light with the questions asked the Dianne Pretty Case. I will approach this by looking at the arguments raised by the counsel for Mrs. Pretty under each article[6], the European Court of Human Rights’ response (hereinafter: ECHR) and wider social and political aspect of the case.

ARTICLE 2

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

§ in defence of any person from unlawful violence;

§ in order to effect a lawful arrest or to prevent escape of a person lawfully detained;

§ in action lawfully taken for the purpose of quelling a riot or insurrection.

René Descartes the famous French rationalist argued that life and health are chief among all goods. In other words we need life and good health if we want to do anything else. On the other hand we have personal autonomy and individuals’ right to self determination. Mrs. Pretty argued that Article 2 of the convention gave her the right to self determination and therefore a right to do die. The Director for Public Prosecution by not granting her husband the immunity from prosecution under Sec. 2 of the Suicide Act 1961 had deprived her of that right. She argued that Article 2 protects right to life not life itself. For instance it protects against interference by the State. If a person wanted to kill him/herself than he/she may do so and if that person is not able to do that (due to a disability) the person should be able to get assistance. If state did not allow this it will be in breach of this article.

We know from L.C.B. v U.K. (1998) that state is under a negative as well positive obligation under this article. That is, not only should there be no threat to life to an individual by any action of the state, the state needs to take steps to ensure that such is the case.[7] Having said that the Court (ECHR) said that there was no right to die and as long ago as 1979 it was noted by the Commission that Art.2 exists to, "Primarily provide protection against deprivation of life only"[8] Court also referred the wording of the Article and the sanctity it holds in the European Culture. Further possible explanation is that the Court has over the years emphasized how important the article is and to keep the sanctity it was felt that the scope ought to be kept narrow[9]. The view that death or dying was a natural ‘corollary’ of life was rejected.

Diane Pretty was able to show that if State allowed assisted suicide the it will not be in breach of it’s obligations under Article 2. Having said that, and as the House of Lords highlighted, this was not enough. She had to show that State is in breach of Article 2 for prohibiting assisted suicide. This she was not able to do and therefore the claim under the Article was rejected.

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This Article is one of rights which are absolute, i.e. there are no exception and therefore no justification. Further more the State is under positive obligations; so mere inadvertence is not enough. Mrs. Pretty argument was primarily based on the cases[10] A v United Kingdom[11] and D v United Kingdom[12], where it was held that state were in an obligation not to inflict the proscribed treatment[13] and suffering attributable to another factor (disease) may amount to such [proscribed] treatment if the State can prevent it and does no do so, respectively. Failing to allow her assistance in death, left her to suffer inhuman and degrading treatment. However as their lordship highlighted that the word ‘treatment’ needs to have some limits and it was difficult to see how the actions of the UK government amounted to proscribed treatment. The Court went on to say that the concept of treatment is subjective and has been developed on a case to case basis but (what Mrs. Pretty is asking) this would be new and extended construction on the concept of treatment if this is allowed. The Court also said that the minimum level of severity required by the Article was not reached. This was due to the fact that palliative care and all possible medical treatment was available (and being provided) to Mrs. Pretty[14].

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 is unique in its wording. Its broad and vague it calls for ‘respect’ of private/ family life as apposed to ‘right’ in other articles. This apparent distinction however has not dissuaded the Court to treat the Article as any less important. And it is this article and the Court’s ruling under this it that has come under fierce criticism[15]. Dianne Pretty argued that this Article protects her from external interference and gives her a right of self determination[16]. She argued that she had a right to die so that she could avoid the indignity and suffering caused by her illness. She also argued that if it can be shown that there is interference, it is for the state to justify it under sub para 2 of Article 8[17] and had failed to do so as no consideration was given to her situation.

The Court in response to this said that it recognizes the domestic law which gave people a right to refuse treatment of any kind. The Court referred to Lord Hope’s judgment in the same case said that “…in an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age”. Therefore it concluded that there was interference on part of UK. Then there was the question of justifiability of this interference under sub para 2 of the Article.

The margin of appreciation in certain intimate matters (such as sexuality) is narrow than others. For example in Dudgeon v. UK and A.D.T v. UK the Court said that matters of sexuality are so intimate that the margin of appreciation is ‘narrow’. The Court went on to say that in this case the margin was much wider. At first glance it seems as though the Court is suggesting that issues of life/ death are not as intimate as sexuality[18]. However this is not the case, the court is suggesting that there is no real consensus between member states on the issue. This observation is true if we see that lately only Netherland and Belgium have legalised euthanasia. The court said that “… the more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy.”

The European Court referred to the flexibility provided by the Act, which requires an approval from the D.P.P before a case is brought against a person. This coupled with the fact that only on 1 case has been brought since the Act took effect. This observation has been criticised and in fairness does seem out of line with the previous case law.

In Dudgeon v UK even though the law prohibiting homosexuality was ‘not used’ its existence was accepted as a violation Article 8. The two decisions do seem opposite. It is submitted that the two situations are quite different and so cannot be compared because the legalizing of assisted suicide does entail risks to a vulnerable group of people which is not the case with homosexuality.

Dan Morris suggests an alternative observation to Court’s on Article 8. He builds his arguments by, referring to the case Botta vs. Italy where it was accepted that personality and personal development as intimate part of private life and thus covered under Article 8. He suggests that dying is part of personal development and personality and the Court protects “posthumous autonomy”[19]This argument though valid again runs victim to the general issue at hand that there are simple too many variables. For example Dan Morris argues that there is no evidence to support the slippery slope argument. He refers to two different researches carried out in the Netherlands; the findings suggest that in Netherland in the year of the survey % 0.7 people where euthanized without consent as apposed to % 3.5 in Australia (where euthanasia is illegal). The % 0.7 still means 1000 people[20] I.e. that legalising will not result in many unwanted deaths. However it is suggested that where important issues of life and death are concerned one need to be ever more careful. It has also been suggested that matters of (medical) ethics should be left to doctors[21]. It is for this reason the medical profession is against any legislation to regulate such a sensitive issue[22].

There can be a number of options for the future. For instance, the 1994 Report of the New York State Task Force on Life and Law concluded on that basis that the legalizing of any form of assisted suicide or any form of euthanasia would be a mistake of historic proportions, with catastrophic consequences for the vulnerable and an intolerable corruption of the medical profession[23]. Alternatively, as Richard H. S. Tur suggests, there is a less need for radical reform as apposed to need for transparency in law[24].

After discussing the Pretty case one has to accept that result was based on a policy; a policy to prefer protection of weak and vulnerable as apposed to personal autonomy; a social question that needs acceptance from the society before it can be legally accepted. Dr. Jane Campbell gives evidence to suggest how our society gives credence to beauty and physical appearances. Until such stigmas exist or the futuristic picture presented at the start of this article are met euthanasia should not be legalized.

BIBLIOGRAPHY:

• Assisted suicide under the European Convention on Human Rights: A critique Dan Morris
• http://dignityindying.nvisage.uk.com/information/factsheets.asp?id=84
• British woman denied right to die at http://news.bbc.co.uk/1/hi/health/1957396.stm
• The Assisted Dying Bill – ‘Death Tourism’ and European Law by John Coggon and Søren Holm
• Diane Pretty: The fight continues available at at http://news.bbc.co.uk/1/hi/health%20/1682321.stm
• Dying woman loses her battle for assisted suicide by Clare Dyer available at http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1123022
• Euro court rejects Diane Pretty's 'right to die' appeal by David Barrett and Geoff Meade
• Is assisted suicide a human right? a public debate on the issue at http://newsvote.bbc.co.uk/1/hi/talking_point/1500552.stm
• Suicide tourism a grisly problem for the Swiss by Antonio Ligi
• 2006: Not a good year for the right-to-die movement; available at http://www.internationaltaskforce.org/iua38.htm
• Assisted Dying for the Terminally Ill Bill Written evidence collated by The Royal College of Physicians of London On behalf of The Academy of Medical Royal Colleges; available at http://www.aomrc.org.uk/pdfs/assisteddying.pdf.
• No way to protect the vulnerable; available at http://observer.guardian.co.uk/uk_news/story/0,,824890,00.html
• Disability Rights Commission Policy statement on voluntary euthanasia and assisted suicide. Link http://www.drc-gb.org/library/policy/health_and_independent_living/drc_policy_statement_on_volunt.aspx
• Just How Unlawful is “Euthanasia” by Richard H. S. Tur
• A Pretty fine line: life, death, autonomy and letting it B by Hazel Biggs

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[1] Suicide Act 1961 sec 1

[2] Section 2 (4) provides:

“No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”

[3] Case of Pretty v United Kingdom (2346/02) 29 April 2002

[4] See for example Lord Bingham in House of Lords “ No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs. Dianne Pretty ..."

[5] There has been long debates on the issue in the House of Lords for and against it and despite Lord Joffe’s persistence the bill has still not passed through.

[6] Apart from Article 2, 3 and 8 Article 9 and 14 were also raised by Dianne Pretty but they are beyond the scope of this essay and will not be discussed.

[7] L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36

[8] X v Austria Appl. 8278/78, 18 D.R. 154 at 156

[9] Assisted suicide under the European Convention on Human Rights: A critique Dan Morris para. 12- 15.

[10] ECHR para 11

[11] (1998) 27 EHRR 611

[12] (1997) 24 EHRR 423

[13] Proscribed treatment implies that treatmet needs to be directed from the state, in other words there needs to be a causal link between individual’s suffering and State.

[14] See for example Ireland v. the United Kingdom judgment, p. 66, § 167 and V. v. the United Kingdom [GC] no. 24888/94, ECHR 1999-IX, § 71 ; ECHR para 52.

[15] Assisted suicide under the European Convention on Human Rights: A critique Dan Morris. See also the case of R (on the application of Burke) v General Medical Council [2004] All England Reports (D) 588. The High Court in the case said that patient had complete autonomy in matters of life and death. See also Just How Unlawful is “Euthanasia” by Richard H. S. Tur

[16] X & Y v. the Netherlands (1985)

[17] She referred to the ECHR case of R v. A (No. 2) [2001]

[18] ECHR see para 71.

[19] X v. Germany App. No.8741/79, 24 D.R. 137

[20] This is quite a large figure It is submitted that there is no evidence to the contrary as well!

[21] Jonathan Montgomery (2006) Law and the demoralisation of medicine Legal Studies 26 (2), 185–210

[22] In a survey by Association of Palliative Medicine, 2006 % 94 of the medical professionals are against a change in law.

[23] ECHR para 30

[24] Just how Unlawful is “Euthanasia” by Richard H. S. Tur

PAKISTAN – US FREE TRADE AGREEMENT

This article is an attempt to answer some of the basic questions regarding, free trade agreements. It also focuses on questions, such as, whether developing countries should enter into such free trade agreements? Is it in Pakistan’s interest to sign a free trade agreement with US and what are the consequences of such an agreement? Finally, what step should the Government of Pakistan follow in order to curtail any short term, adverse effects of the free trade agreement?

HISTORY

For thousands of years now, nations have entered into agreements for their mutual benefits. Classical Athens was known for its trading activity as early as 4th Century BC. It was said to have imported grain from Russia, Sicily and Egypt and Salt fish from Spain or the Black Sea. Trade was regulated by local legislations. Similarly Romans too attracted huge international trade. However, unlike classical Athens, Roman Empire entered into commercial treaties with many nations from time to time. Romans used these treaties to resolve disputes between themselves and foreigners.

In the last quarter of a century, globalizations and rapid growth of the world economy has forced the world nations to compromise some of their own interests for the mutual benefit of all. World Trade Organization is an example of such compromise.

WHAT IS A FTA?

In a Bilateral Trade Agreements (hereinafter: BTA), countries liberalize their trade by minimizing artificial barriers and other restrictions e.g. quotas, tariffs and subsidies that countries use for the protection of their own domestic industries. Free Trade Agreements (hereinafter: FTA) are intended to eliminate all these restrictions.

WHY JOIN A FTA ?

Countries enter into FTAs for various reasons. It provides for greater market access through reciprocal exchange of trade concessions and realignment of resources towards more efficient sectors. As tariffs are lifted, more imports enter the country resulting in drop of domestic prices. This drop in prices results in greater consumption of goods. In the end there are more goods, of greater variety and cheaper than under a tariff regime.

Secondly, if a competing country (a country whose exports are same) enters into a FTA with the intended country e.g. US in our example, it runs the risk of being left out and the cost of exclusion is associated with lost trade opportunity which is not very easy to quantify.

Thirdly, Political reasons may also encourage a country to enter into a FTA e.g. strategic alliance or better bargaining position in multilateral negotiations e.g. SAARC or ASEAN.

Lastly, Countries, especially developing countries are more interested to enter into FTA, owing to the relative slow progress of multi-lateral trade organizations, e.g. WTO. The huge size of such organizations and the competing interests of member countries have dampened the momentum of progress. On the other hand, FTA proves to be a much quicker way to open market and greater economic integration.

Increased returns and competition are some of the likely dynamic benefits arising from FTAs. Another consequence of market integration is the access to the larger markets, which makes it possible for producers to attain economies of scale in their output levels. Efficiency gains are thus realized from opening up local markets to external competition and potentially allowing producers to operate at a higher (and more efficient) level of output.

IS IT IN PAKISTAN’S INTEREST TO SIGN A FTA WITH A DEVELOPED COUNTRY LIKE THE US?

A move towards freer trade would certainly favor Pakistan’s industries (e.g. cotton, textiles and apparel, rice, and leather) that are already engaged in exporting to the US. Their access to the existing markets could only be enhanced.

FTA stimulates greater investment. The incentive to invest, for both member-country and foreign investors, depends on current and future trade policies, on the nature and level of uncertainty, and on the general macroeconomic and political environment. FTA with US can underline Pakistan’s commitment to cross-border trade and encourage Foreign Direct Investment (hereinafter: FDI). In other words, this incentive appeals to countries that may wish to ‘broadcast’ or make known to the international community its resolve to pursue a liberal regime.

Secondly, FTA acts as an assurance, whereby US guarantees Pakistan’s continued access to its market. This motive can be especially relevant if future trade restrictions are likely. It may explain why some agreements (BTA/FTA), particularly those involving a large and a small country have the smaller entering on relatively unfavorable terms. The worse terms can be considered as the premium for the insurance against future trade barriers of partners.

Thirdly, with an export market perspective, U.S. is already an important market for Pakistani export accounting for nearly one fourth of its total exports. FTA can secure continuous access even if the US decides to raise its tariff levels for other countries. This, in essence, is tantamount to buying guarantees. The recent protectionist move of the US is one of the motives that prompted Pakistan to engage in negotiations for bilateral arrangements. For small developing economies, like Pakistan a FTA will be a guarantee against market closure.

Lastly, Pakistan’s FTA with US would possibly make it a favored low cost supplier and will become more attractive to investors than the other low cost countries that are not party to any BTA. Under these circumstances, developing countries tend to enter into FTAs with larger partners for “fear of being left behind.”

SHORTCOMINGS IN SIGNING A FTA WITH US

It is submitted that one of the most contentious issues is the effect of free trade on the “import competing industries”. The brunt of the adjustment costs arising from the FTA will be shouldered by these industries. There would be little popular support for the FTA if the costs would be far greater than the benefits arising from the improved market access of the current exporters.

Negotiating with larger economies has its downside. Larger economies negotiating a FTA enjoy greater bargaining power and are in a position to successfully extract concessions of all kinds. These concessions are not just trade related but also include non-trade issues. For instance, USA is likely to demand concessions in intellectual property protection or investment guarantees from Pakistan in exchange for market access. Secondly, US has fairly, if not quite, liberalized economies. Consequently, Pakistan may get only small tariff concessions.

The adjustment costs involved during the transition may be quite severe and prolonged. For example, the unemployment costs may be too high for Pakistan especially in the light of very high poverty. At the same time, real life imperfections in the labor or financial markets may impede the resource allocation as proposed by theory. It is the lack of the necessary conditions, as assumed in theory, that may frustrate the desired outcomes of free trade and which ultimately lend capital to the growing view that free trade, though desirable, should be not be pursued as the overriding policy goal.

Ultimately, national interest will be the motivating factor in entering into a FTA. If national interest were defined in terms of the interests of exporters, import-dependent local producers, and the consuming public, then there could be broad public support for an FTA. If viewed from the perspective of job preservation or job creation, there might be opposition. Inasmuch as trade liberalization serves to render import competing domestic industries uncompetitive, resulting unemployment will increase resistance against entering an FTA.

PAKISTAN-UNITED STATES TRADE

The United States is by far Pakistan’s leading export market, accounting for nearly one-quarter of the total export. Pakistan’s primary exports are cotton, textiles and apparel, rice, and leather products. During 2005, total Pakistan’s exports to US were worth $3.25 billion (up 13% over 2004). About two-thirds of this value came from the purchase of cotton apparel and textiles. Pakistan’s imports from US during the same period were worth $1.25 billion (down 31% from 2004), led by fertilizers and cotton fiber. The State Bank of Pakistan reports a steady increase of FDI in the country with a total exceeding $1 billion for the year ending June 2005. More than one-quarter of this amount came from the United States. It is also estimated that total US assistance to Pakistan for the Year 2006 will be $781 million. Nearly half of that will be military assistance ($300 million).

CONCLUSION

If Pakistan’s “imports competing industries” have to survive, there are reforms that the Pakistan government will have to take. These include economic reforms to reduce the cost of business e.g. rationalization and simplification of tax regimes, regulation in the prices of the factors of production e.g. energy, real-estate, communication, transportation, implementation of rule of law, friendly governance and improving quality of workforce (leading to efficiency gains). BTA are undeniably the need of the hour but are we ready for the re-arrangements that ensue immediately after the FTA is a question still unanswered.

Nevertheless it is highlighted that, the benefits of FTA, for Pakistan, go beyond trade. It is submitted that FTA with US will enhance the attractiveness of local region for FDI. Thus to the extent that the employment generated from foreign investments can make up for the losses of the import competing industries that fail to compete. This approach should underscore that in evaluating joining FTA, the impact of investments should be factored in along with the trade issues. Furthermore, the gains will be greater for Pakistan if the FDI that were generated actually stimulate local investment as well. For this reason, the decision to join FTA should be tied up with investment policy reforms. Simply pursuing FTA without facilitating the investment process may not ameliorate the negative effects on employment in the short run.

On the occasion of President Bush’s visit to Pakistan the President said that the United States wants to “build a broad and lasting strategic partnership with the people of Pakistan.” This partnership is to be implemented through a new Strategic Dialogue in seven major issue-areas as found in the March 4 Joint Statement issued by President Bush and Pakistani President Musharraf. The Joint Statement emphasizes shared U.S.-Pakistan interests and calls for a significant expansion of bilateral economic ties. It is submitted that, sustained economic progress will only be ensured by trade agreements and not by aid and loans.


REFERENCES

Looking before leaping into Bilateral FTAs: Issues in Asian Bilateralism by John Lawrence Avila, Michael Lynch and George Manzano.

A brief History of International Commercial Law.

Free Trade Agreements: US Strategies and Priorities. Edited by Jeffrey J. Schott
Global Trends by Martin Khor
CRC Issue Breif for Congress: Updated 6 March 2006.

The Pros and Cons of Pursuing Free-Trade Agreements: A series of issue summaries from the Congressional Budget Office July 31, 2003