Legal Awareness Newsletter - Edition 8
January 30th 2024
Hey everyone! I hope week three of term is going well for you. This week we have a swathe of interesting articles. Given Trump’s recent taking of office, you can expect insight into how he’s spent his time in the White House.
As usual, we have 4 general article, 2 commercial articles, definitions, and links to further articles.
Please do enjoy!
All the best,
Jago Cahill-Patten
Publication’s Officer
General Section
Why a binary definition of gender legally makes no sense?
Oskar Puntmann
President Trump recently signed an executive order saying there are only two genders, male and female, based on the gender assigned at birth. Similarly, the UK legal definition restricts gender to the concept of sex. This article will explain why these interpretations are illogical and arbitrary.
Sex is often posited as a clear biological distinction of what is a man and a woman. Nevertheless, this argument has clear holes. Often, the concept of xx and xy chromosomes is seen as definitive. But this ignores intersex people. Is someone with xxy a man or a woman? Do they become a woman because they have a vagina? But then shouldn’t a post-operative trans woman be a woman by sex? Or if it is based on the genitalia at birth? What about intersex people born with both or neither genitalia? What if you then base it on reproductive roles? Is a man a man because he produces sperm? But what if he has had a vasectomy and no longer produces sperm. Is he then no longer a man? Sex, while it appears to have a firm base prima facie, nonetheless becomes incredibly arbitrary once considered in detail.
Gender is the cultural side of sex. UK law still equates it to sex, so I propose a better definition, namely that of Oxford University Medicine: “Gender is complex, encompassing the biological, psychological and social.” As such, gender is especially complex and cannot be arbitrarily restricted. Gender in our world was created by cisgender people, so the only two possibilities are man and woman. I say, our world - many pre-colonial and non-western societies already had a more complex interpretation of gender. Transgender and gender-non-conforming people are evidence that there are more than just two genders.
The case, For Women Scotland v The Scottish Ministers, was recently heard in the Supreme Court, aiming to define a woman, in relation to s.7 of the Equality Act 2010. While the result is yet to be heard, the court documents reveal the difficulties of this. UK law defines a female as a female of any age and the equivalent for a male. The Equality Act has the protected characteristics of sex (s.7) and gender reassignment (s.11). Thus, are both applicable to transgender people or only the latter? But if a female is a female of any age, then doesn’t s.7 apply to a transgender woman? Or is she only recognized as female for certain legal processes and the law regards her as both male and female? But then doesn’t that then affirm the notion that gender isn’t set in stone? Further, if we restrict sex for the purposes of s.7 to male and female, does that mean intersex people who don’t fit into that category don’t have a sex? Or do they gain a sex, once they identify as a man or a woman? But doesn’t that then encompass gender identity? If we were to remove the arbitrary definition of sex, the whole concept of s.7 protection falls apart.
Thus, sex and gender are much more complicated concepts than Trump or the Equality Act allows for. It is impossible to assess a clear determination without resorting to some level of arbitrariness.
Presidential Pardons in 2025: Mercy or Mistake?
Davon Pung
Background
The 24 hours spanning the end of former President Joe Biden’s administration and the beginning of President Donald Trump’s second term witnessed an unusual spate of presidential pardons. President Biden exercised this executive authority in the final minutes of his presidency, which was swiftly followed by newly-inaugurated President Trump lavishly exercising the same powers mere hours after taking office. As TIME magazine aptly described, while the quality of mercy is tough to measure, the quantity of mercy has not been strained in Washington recently.
What are Presidential Pardons?
Federal pardons in the United States are granted only by the sitting U.S. president; this clemency power is conferred by Article II, Section 2, Clause 1 of the U.S. Constitution to grant “Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”. The clemency can take on various forms including: commuting or postponing a sentence, remitting a fine or restitution, delaying the imposition of a punishment, and providing amnesty to an entire group or class of individuals.
On whether checks exist on presidential pardon power, Virginia Tech political expert Karen Hult said: “pardons constitutionally are an unchecked presidential power, which some date back to the British crown. Although the federal courts might rule otherwise, and Congress could pass a ‘sense of Congress’ resolution that questions such actions, it would seem that amending the Constitution is the only formal — and unlikely — response”.
Although a pardon means that recipients cannot be charged with federal crimes, it is not to be mistaken for a blanket immunity to forms of recourse, legal or otherwise. The individuals in question remain susceptible to state-level investigations, civil suits and certainly persecution in the court of public opinion.
Who was pardoned?
Biden issued preemptive pardons for several family members, including his brothers James and Frank Biden, and his sister Valerie Biden Owens; He remarked that the pardons were intended to shield his family from politically motivated attacks and should not be mistaken as an acknowledgement of any wrongdoing. Similar reasons—that “politics has infected this process and it led to a miscarriage of justice”—were cited for the December 2024 pardon of Biden’s son, Hunter, for tax and gun crimes despite his repeated pledges not to interfere with the courts’ decisions.
Additionally, he issued pardons for Dr. Anthony Fauci, retired General Mark Milley, and members of the House committee that investigated the January 6 Capitol attack, despite none of these individuals facing criminal charges at the time, intending to protect them from potential retribution by the incoming administration.
Contrastingly, President Trump granted “a full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021”. This nullifies years of work by the prosecution, having to-date charged nearly 1,600 people and convicted 1,300 of them. Among those pardoned are members of far-right militant groups Oath Keepers and Proud Boys and their respective leaders, Enrique Tarrio and Stewart Rhodes.
Separately, infamous Silk Road founder Ross Ulbricht, who used Bitcoin to facilitate over $200 million in illicit trade primarily involving narcotics, has also been pardoned by Trump. This marks the end of the two life sentences and 40 years he had been serving.
Implications
The world is no stranger to the United States’ complicated political landscape. This saga underscores the deep divide and mistrust that pervades its political parties and their leaders.
Concerningly, this further signals to both presidents’ already polarised supporters that the pillars of the criminal justice system under their respective political rivals’ administration are not to be trusted.
While politically motivated pardons are nothing new, the nature and scale of these actions leave a bad taste in one’s mouth. Even if we choose to believe that mercy, in and of itself, is a noble undertaking—the heavy-handed manner of execution or the wider context that necessitated them is certain to taint its meaning and spirit.
UK Government reintroduces the Higher Education (Freedom of Speech) Act 2023
Walter Cheung
UK Secretary of State for Education Bridget Philipson has affirmed the UK Government’s commitment to reintroduce the Higher Education (Freedom of Speech) Act 2023. The Act was passed by the previous Conservative Government, but its implementation had been discontinued by the current Labour Government after it took office in 2024.
Details of the Act and Labour’s reforms
Aimed at promoting academic freedom and safeguarding those who express contentious views in academic contexts, the Act generally requires higher education institutions to take reasonable steps to promote and protect ‘lawful free speech’ on campus, subject to provisions in the Public Order Act 1986 and the Equality Act 2010. Universities are also prohibited from using non-disclosure agreements to stop complaints of harassment or bullying. In particular, the Office for Students (OfS) is given statutory power to investigate complaints over free speech violations, oversee universities’ implementations of ‘robust codes of practice’ to protect free speech, and issue penalties for non-compliance. The Act’s provisions apply to all students, staff, academics, and external speakers speaking at society events.
Labour’s reintroduction of the 2023 Act would bring back most provisions, albeit with a few reforms upon consultations with academics, unions and minority groups. In particular, the OfS’ investigatory powers will be fully replacing the ‘statutory tort’ in the original Act. The tort was previously used by claimants to directly claim damages from universities for infringements of freedom of speech. This means universities are relieved of the possibility for litigation arising from complaints over free speech but remain accountable to complaints filed to the OfS. Additionally, the reintroduced Act will relieve student unions of duties to uphold free speech conferred by the original Act, which Philipson described as “overly burdensome” and “distracting from work to support students.” This would leave university administration as the sole body accountable for free speech violations on campus.
Implications
With the ‘statutory tort’ for free speech revoked, the complaints scheme overseen by the OfS would become the centralised pathway for free speech complaints by university members. Students, meanwhile, can apply for alternative dispute resolution (ADR) procedures via the Office of the Independent Adjudicator for Higher Education (OIA). This change was justified in light of “disproportionate costs for legal disputes.” Indeed, the risk of being involved in litigation could deter universities from touching on sensitive issues to begin with, such as refraining from inviting controversial external speakers. This was put by Philipson as “hurt[ing] rather than help[ing] free speech”, especially given financial burdens most universities are currently facing. Furthermore, the trend towards using ADR may widen accessibility to free speech claims, considering that doing so would be less costly. However, resorting to either the OfS or OIA requires that internal complaint procedures are fully exhausted, which contrasts the ways in which students can directly hold institutions to account via the ‘statutory tort’. This may exacerbate the bureaucracy and time involved in free speech disputes.
Finally, the quality in which OfS can manage free speech complaints has raised questions. As commented by Rose Stephen, Director of Policy and Advocacy at the Higher Education Policy Institute, the OfS carries discretion as to which complaints to consider or ignore, and has no binding duty to assess all complaints. While this was intended to prevent unnecessary assessment of “nonsensical complaints”, it is critical that the OfS provides more detailed guidelines and regulations as to how the process of handling complaints will be implemented. This would bring much-needed clarity for when the Act formally comes back into force.
Not breaking the law, but upholding it’: Last-Minute Pardons Issued to Biden’s Nearest and Dearest
Elise Lunt
In the eleventh hour of his presidency, Joe Biden issued a number of pre-emptive pardons to members of his family. This includes his brothers Frank and James Biden, and his sister Valerie Biden Owens. These pardons follow various others issued in his final days in the White House; pardons intended to protect his family and closest political aides from Trump’s expected pursuit of “retribution”.
This follows the controversial ‘unconditional’ pardon of his son, Hunter, at the beginning of December, who had pleaded or been found guilty in two criminal cases and was, at the time of the pardon, awaiting sentencing.
Biden justified these familial pardons by emphasising that, rather than absolving them or any guilt and excusing them from the consequences of any illegal activity, his family had been wrongly and repeatedly “subjected to unrelenting attacks and threats”, which he has “no reason to believe... will end”. In regard to his son, Hunter, he repeatedly emphasised that his son has been “singled out” by the legal system and those within it, calling the cases “a miscarriage of justice”.
Among those pardoned were a number of Biden’s closest political aides, or at least, politicians and civil servants that he considered most at risk of facing Trump “revenge”. Anthony Fauci, who served as COVID-19 response chief under the first Trump administration and who regularly clashed with Trump over appropriate pandemic measures and messaging, expressed his gratitude at receiving the pardon to ABC News. He asserted that he would have faced “politically motivated” investigation and prosecution were it not for the pardon.
General Mark Milley also expressed gratitude for his pardon: “I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights... [for] not breaking the law, but upholding it.”
Maryland Democrat Jamie Raskin told the New York Times: “Innocent people are being pardoned in the morning, and guilty people are being pardoned in the afternoon.” He described it as unsettling that those pardoned were being pardoned “simply for doing [their] job and upholding [their] constitutional oath of office”, but he believed it was necessary as the “incoming administration has been consistently levelling threats”.
The extent of both political and legal controversy these pardons will attract is undeniable. Nevertheless both ‘sides’ of the political conversation are at fault, if there is indeed a fault that can be attributed to circumventing the justice system and using the presidential power of pardon as a political ploy, rather than the symbolic and meaningful power it was intended to be. Of course, each side argues that they are issuing these pardons for the right reasons, claiming they are only pardoning the innocent, that the ‘other side’ is pardoning those who ought to face retribution. This is for the reader, and potentially history, to decide.
A number of commentators have expressed concern that Biden’s pre-emptive pardons set a precedent for President Trump to do the same. This seems a touch naïve: Trump had made his intentions, vis-à-vis pardoning those convicted after January 6th and others, clear. It seems unrealistic to assert that, had it not been for Biden ‘clearing the path’ toward easier and more justifiable pardons, Trump would not have issued the pardons he was planning. However, what is incontrovertible is that any future criticisms levied by the Democrats at similar conduct from the Trump administration will appear as disingenuous and hypocritical.
Commercial Section
Merger:
A merger occurs when two companies combine to form a single entity. This is often done to increase market share, reduce operational costs, or expand into new markets. However, mergers in industries like mining can trigger antitrust (competition law) concerns, as fewer players controlling a market can lead to price manipulation and reduced consumer choice.
Simone Liang
Digging Deep: The Potential Rio Tinto – Glencore Merger
Adrien Charles
Reports have emerged about early-stage talks between Rio Tinto and Glencore on a potential merger that would rank as the largest-ever mining deal. Whilst discussions are not presently active, the initial talks reveal a significant departure from when Rio Tinto rejected a takeover approach from Glencore in 2014. This kicked off a months-long public feud that made painfully clear a vast gulf between the two companies’ cultures. In anticipation of future developments, it is worth assessing the potential benefits and obstacles this unprecedented merger might entail.
Why would the merger make sense?
The merger rumours come at a time when the mining industry is experiencing a wave of major dealmaking, a trend reflecting the growing urgency to bulk up in energy transition metals, specifically copper. A highly conductive metal, copper is expected to face shortages due to its use in powering electric vehicles, wind turbines, solar panels and energy storage systems, among other applications.
At the same time Rio Tinto is feeling the strain to move beyond its heavy reliance on iron ore, a market that is showing signs of long-term weakness; the company faces pressure to strengthen its position in copper. This pressure has been further amplified by BHP's failed attempt to acquire Anglo American in 2023. Although the deal collapsed due to structural issues, it has been widely seen as a key catalyst for the ongoing merger discussions between Rio Tinto and Glencore.
With Glencore holding a 44% stake in the Collahuasi mine in Chile – one of the richest copper deposits in the world – a merger between the two companies would create a market leader in copper mining, positioning the combined entity at the forefront of the energy transition metals sector. Acquiring existing shares in copper mines is also considered more strategic than developing new ones, given the challenges in bringing new projects online. Rio Tinto’s delayed and controversial Resolution copper mine in the U.S. highlights the complexities involved with bringing these projects to fruition. Acquiring Glencore’s stakes in established mines offers a quicker path to expanding copper operations with fewer hurdles.
Potential Hurdles
As discussions remain on hold, doubt persists over whether Rio Tinto can move past its aversion to large-scale deals that has lingered since its ill-fated acquisition of Alcan in 2007, often regarded as one of the mining industry’s most disastrous deals. It remains to be seen whether BHP’s bold move is enough for Rio Tinto to emerge from the deal-making sidelines.
From a strategic standpoint, the main hurdle lies in the limited overlapping assets between both companies. In the last decade, Rio Tinto has made efforts to pivot away from fossil fuels in favour of energy transition metals. By contrast, Glencore has expanded its coal operations, with shareholders voting last year to retain the highly lucrative business instead of spinning it off. The Swiss company also has mines in the Democratic Republic of Congo – a difficult place to operate which Rio Tinto has long avoided. This divergence in strategy and risk appetite could overshadow the potential synergies of combining their copper production, making the benefits of a merger less compelling.
Lastly, the merger will undoubtedly draw lengthy antitrust scrutiny from regulators given the scale and potential market impact of combining two of the world’s largest mining companies. Such reviews are likely to be rigorous, spanning multiple jurisdictions, and could delay or potentially derail the deal altogether.
The Private Credit Sector – Too Good to be True?
Justin Fu
Context: Private Credit Boom
Over the past decade, debt financing from Private Credit (PC) has risen in prominence. As opposed to traditional bank loans, loans from PC are subject to far less regulatory stringency. This also allows increasingly flexible loan structures. For example, in July 2024, Pluralsight took a loan based on projected revenue, rather than current cash flow or earnings, a novel structure that would be seen as overly risky by traditional banks. The ease of access to capital and overarching flexibility makes PC a lucrative option for startups looking for debt financing.
This increased capital has caused rapid growth in the sector. One key feature is the rise of asset management firms, with separate branches offering services such as PC, private equity and hedge funds. However, the growth of the industry is not without risk.
This risk can be examined from both the narrow perspective of individual investors and the broader perspective concerning the stability of the entire sector.
Investor Risk
Investor risk stems from a lack of transparency across the entire sector. Unlike securities, private loans are not typically traded in the market. The lack of real-time pricing information makes it difficult to gauge the valuation of the borrower or their assets. Instead, valuations are subjectively ascertained by individual fund managers. The lack of standardisation creates discrepancies that make it near impossible to ascertain the credit rating or financial health of the management firm’s investment. Moreover, there often exists an information gap between fund managers and investors. Unlike traditional bonds, investors are often not entitled to access detailed financial statements or data directly from borrowers. In this sense, they are less capable of making informed decisions, and increasingly reliant on the management firm.
Sector Risk: Borrower Default
Like all economic bubbles, it is only a matter of time before the PC sector pops.
Ironically, the greatest threat to the sector is what drove it to prosper in the first place. The minimal regulatory oversight, exacerbated by the inflow of capital in the sector, means that lenders may be more willing to finance borrowers even if they have low credit ratings. The reduction in quality of due diligence means that borrower default is a very real concern. This holds true especially in light of US interest rates declining at a rate lower than initially projected. Smaller businesses who have taken out floating loans may not have accounted for this rise in borrowing costs, potentially increasing risk of default. Furthermore, the aggressive trade policy proposed by US President Trump could lead to economic volatility and uncertainty in the long run. Thus, credit rating agency KBRA has predicted an increase in default rates from 1.9 to 3% in 2025.
This risk is perpetuated by the rapid expansion of management firms, which has driven many to pursue public listings. As a byproduct, they face increased pressure to up the quantity of their assets under management (a metric indicative of the size of the management firm). However, excessive focus on upscaling may cause many firms to prioritise growth at the expense of thorough borrower due diligence. The quality of investments may diminish, ultimately increasing the risk of the sector’s collapse.
Terms and Links:
Simone Liang
Market Dominance:
Market dominance happens when a company (or a few companies) control a significant portion of an industry. This is common in Big Tech, where firms like Google, Meta, and Amazon acquire smaller companies, potentially reducing competition.
Regulatory Action: The European Commission enforces EU competition law, which prevents companies from using their dominance to eliminate competition unfairly.
Potential Outcomes: If a tech giant acquires too many competitors, regulators may block the deal, impose fines, or force structural changes (e.g., requiring the company to sell off parts of its business).
EU Regulators Tighten Oversight on Big Tech Acquisitions:
European regulators have introduced stricter measures to scrutinize acquisitions by major technology firms, aiming to prevent monopolistic practices. The move follows concerns that tech giants are consolidating power by acquiring smaller rivals, reducing market competition.
Cryptocurrency:
Cryptocurrency exists in a legal gray area—is it a security, a commodity, or a currency? This classification matters because:
If crypto is a security, it falls under Securities and Exchange Commission (SEC) regulations, requiring stricter compliance.
If it’s a commodity, it may be regulated like gold or oil, under different financial laws.
Why This Case Matters? The US Supreme Court decision could set a legal precedent, meaning future crypto cases would follow this ruling. A strict ruling could lead to heavier regulations, while a lenient ruling could increase market growth but also risk less investor protection.
US Supreme Court Hears Landmark Case on Cryptocurrency Regulation
The US Supreme Court is currently deliberating a significant case regarding the regulation of cryptocurrencies. The ruling could set a precedent for how digital assets are classified and controlled, potentially shaping the future of the crypto industry worldwide.