Book reviews: July 2021

Paul Reid

PUBLISHER: W GREEN
ISBN: 978-0414060524
PRICE: £40

This is the fourth edition of this core text on public law. It provides comprehensive, up to date and accessible coverage of the key areas of Scottish public law. The book is equally of value to those newly entering the law, this field of law, or practitioners who come into contact with public law.

That is a wide area of law, ranging from the obvious such as the courts and their function, to maintenance of the rule of law, to local authorities. However, one might suggest that every practitioner who has an interest in how public law shapes and influences daily life, as well as an insight into the legal aspects of a constitution which has been vigorously tested, would learn all they need from this text.

One has to step back and consider the areas of public law which may become of ever increasing focus in the course of the next few years.

Judicial review is under reconsideration. The UK Government commissioned Lord Faulks to produce a report on judicial review and its practical operation in England & Wales, published in March 2021, which was accompanied by a Government response. Commentators anticipate legislation before long. The Faculty of Advocates' view on the availability of judicial review, in response to the UK Government review of administrative law, is now available.

The Government has also commissioned an independent review on “how the Human Rights Act is working in practice and whether any change is needed”.

Finally, the legal consequences of the decisions of the Supreme Court following the 2016 referendum are covered. In discussing those consequences for UK ministers exercising the prerogative, Reid observes: “in previous editions of this book, it was said that those ministers were answerable to Parliament for such advice and thus any controls were political and not legal… That… can no longer be said to be the case”.

The book opens with a legal analysis of the 2014 and 2016 referendums. The author notes: “those votes have seen the constitutional arrangements of the United Kingdom tested to the extreme”. He uses the legal issues arising from them to frame “the rest of this book in its contemporary context”.

Thereafter, over 15 chapters, the author shines a bright and penetrating light on the subject, ranging across the basic foundations such as elections, rule of law, parliaments, governments, the courts, tribunals and the judiciary to the more complex areas of human rights, the continuing relationship between the UK and EU, and judicial review.

What was the chapter on judicial review has been divided into two chapters in this edition. The first deals with the principles of judicial review and the appropriate procedure to be adopted, including a discussion on standing. The second chapter deals with the remedies available. Again, the author leads us deftly through this area of law.

The chapter on EU law and, in particular, retained EU law is an exposition of clarity. This is not straightforward legislation, no matter how clear the policy objective. There are interesting observations such as “the exclusion of the Charter [of Fundamental Rights] is likely to make little practical difference”, its purpose being to “reaffirm existing rights”. The continued competence of the Scottish Parliament to legislate, which was the subject of some legislative amendment during the withdrawal procedure, is likewise clearly explained.

The author (like the reviewer) offers no personal view on any of these issues. However their importance is undeniable and this text provides insight into these areas with immense clarity. Public law may not be your area of practice. Read this book and you will appreciate more than ever how much public law impacts on all of us, whether as practitioner or citizen.

David J Dickson, solicitor advocate and review editor

Edited by Carsten Stahn, Carmel Agius, Serge Brammertz and Colleen Rohan

PUBLISHER: OXFORD UNIVERSITY PRESS
ISBN: 9780198862956
PRICE: £95

The international war crime tribunals and courts that have come into existence over the last 20 years all tend to self-promotion in which they boast of their achievements. There are a variety of reasons for this, both good and bad. In one sense this book is a continuum of that self-congratulatory process, published by OUP as the ICTY's mandate comes to an end. Though the book is a worthy effort, it is far from scintillating. For one thing it is probably too long (perhaps because it is determined to be a tome), although it is possible to dip into the different chapters and themes, most of which are relatively short.

Having spent five years defending at the ICTY, I headed to the parts dealing with defence issues. The chapter called “Defence Investigative Ethics: Practical Lessons from the ICTY's Legacy for Counsel Practising in the Region”, by the Alaskan defence attorney, Michael Karnavas (who undoubtedly has significant experience of ICTY work), purports to explain to lawyers from civil systems how to act for accused persons in adversarial proceedings. It contains much on the author's favourite topic, the “theory of the case”, which he summarises as follows: “Defence counsel must select the most persuasive (and therefore the most plausible) theory of the case before preparing and presenting that theory of the case to the Trial Chamber.” (Italics as per the original text.) He is dogmatic in his view that this is the way to defend at the ICTY, but it was most certainly not my experience of how to get satisfactory results for clients there. 

In addition, the author talks a lot about diligence and zealousness. No one who knows Karnavas could doubt his commitment to the former – he worked prodigiously and unrelentingly for his clients. He certainly practised the latter, but arguably rather too much. In one mammoth case lasting many years he was effectively sinbinned (prevented from speaking in court for a week) for offending the bench in his trademark overbearing manner, and left his co-counsel to do the advocacy in that period. To be fair he accepted his punishment with contrition. He was perhaps a strange choice for the editors to commission to write this particular chapter.

Among the editors is the well respected Californian attorney Colleen Rohan, who also has extensive ICTY defence experience. Her chapter deals with the history and effectiveness of the Association of Defence Counsel, the “closed shop” organisation that worked with the ICTY to assist and to some extent control defence counsel. Though it was quite an important body in the everyday life of those defending at the ICTY, the chapter is unlikely to have widespread interest, nor is it insightful as to how lawyers from very different legal systems and, in particular, from the former constituent and warring parts of Yugoslavia worked and for the most part thrived together.

There has long been a sort of conspiracy theory among defence advocates at the ICTY that the judgments were written by, and the real decisions made by, judicial assistants (called “legal officers”) rather than the judges themselves. It was too much to hope that the chapter on “Judgments and Judgment Drafting” by two such legal officers might reveal such secrets. Having said that, the amount of assistance on offer to international judges would, I suspect, astonish a judge of the Court of Session.

A thought provoking chapter, “A Partial View of History”, by an academic and legal officer duo, examines the tension at ICTY trials between creating a historical record as against the far narrower issue of whether the prosecution has proved the indictment against a particular accused beyond reasonable doubt. Like much of the book, the chapter is at times too academic, but its assessment of the Milosevic trial and how it allowed his “right to challenge the prosecutor’s version and to present his own narrative” is interesting. Indeed, soon after I started in this work, my first client, a prominent Bosnian Serb politician, explained to me that as far as he was concerned there were three trials happening simultaneously: (1) the trial in relation to the charges he faced; (2) the trial of history; (3) the trial of public opinion in Bosnia and Serbia.

Though the ICTY has taught the International Criminal Court a great deal (and many feel the latter could learn more from it still), the attention of the international criminal legal world has shifted rapidly to the newer and permanent institution. As a result, this book is largely describing legal history and is likely rapidly to gain dust on the shelves of international law departments.

David Josse QC, 5 St Andrew's Hill