Keeping Procurement on the Rails: A Legal Perspective on UK Passenger Rail Franchising

By Dr Luke Butler, Lecturer in Law (University of Bristol Law School).

© Colin G. Maggs, Ex LMS 46100 'Royal Scot' rests in platform 13 at Bristol Temple Meads having arrived from the north in July 1961

© Colin G. Maggs, Ex LMS 46100 ‘Royal Scot’ rests in platform 13 at Bristol Temple Meads having arrived from the north in July 1961

Since privatisation, passenger rail has fallen victim to a complex web of institutional and contractual relations, a matrix of network owners, service providers, regulators and oversight bodies with ever-changing remits. At the risk of oversimplification, rail provision involves the formal separation of Network Rail’s management of the infrastructure (the track etc) from the operation by Train Operating Companies (“TOCs”) of rail services on that infrastructure. The Department for Transport (“DfT”) opens the operation of rail services up to competition through a procurement process and invites qualified TOCs to bid, although some rail franchises may be directly awarded without competition. In turn, TOCs pay to access the network and lease rolling stock. All involve multiple contracts sharing subsidies, premiums and risks.

Post-privatisation, it was predicated that the contractualisation of rail would lead to “government by lawyers”. Yet, I have always been surprised at the relatively limited engagement of legal research on UK rail since.[1] This blog seeks to renew conversation by arguing that there is a high degree of legal and practical uncertainty in the route to effective franchise procurement and which has not been significantly improved by recent reforms.[2] Continue reading

When is an applicant an applicant? — About the potential abuse of non-discrimination law, ‘Equality Law-Hoppers’ and the EU equality law directives

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

sparbuch-DW-WebWelt-SchwerinIn its Kratzer judgment of 28 of July 2016,[i] the Court of Justice of the European Union (CJEU) responded to the German Federal Labour Court’s preliminary reference concerned with the question what qualities are required to be an applicant who seeks access to employment, to self-employment or to occupation within the meaning of Article 3(1)(a) of the Framework Directive 2000/78/EC and Article 14(1)(a) Recast Directive 2006/54/EC. In it, the CJEU essentially rules that unserious applicants who do not actually seek employment but only apply for the purpose of claiming compensation do not fall under the scope of the directives and their respective articles. The case does not mention Article 3(1)(a) Race Directive 2000/43/EC but there is no reason to believe the conclusion would be any different regarding its application to employment and occupation.

The brief judgment, which was decided without prior opinion of the Advocate General, is unlikely to stir-up the European-wide debate on equality and non-discrimination law and may seem all too obvious to many commentators. However, for the German legal context, the judgment is very significant because it approves the national courts’ case law on the so called Equality Law-Hoppers (AGG-Hoppers) and leaves significant discretion to the national courts to counteract apparent as well as alleged abuses of the General Equal Treatment Act (Allgemeine Gleichbehandlungsgesetz, hereafter AGG)[ii] implementing the EU equality directives. Continue reading

Inside San Diego’s Otay Mesa Detention Centre

By Dr Diego Acosta Arcarazo, Senior Lecturer in Law (University of Bristol Law School).*

Otay Mesa Detention Centre, San Diego

Otay Mesa Detention Centre, San Diego

Although much of my research focuses on legal aspects of undocumented migration, I’d never visited a detention centre for irregular migrants. So when the opportunity arose in May this year to see inside the Otay Mesa detention facility near San Diego (where a Russian citizen had died just days before), I couldn’t pass it by.

The first thing that strikes the observer is how far the facility is located from downtown San Diego. Indeed, it’s very close to the Mexican border. Having finally arrived after more than an hour’s drive, and after going through a double electrified fence and registration, we are conducted into a room where we are given a presentation by CCA personnel. CCA — the Correction Corporation of America — is a private company making huge profits on running such centres ($227 million in 2015). With some notable exceptions, scholars have neglected the business aspects of the migration industry, perhaps due to the opaque nature of some of the arrangements between governments and companies working in the sector. Yet these aspects raise innumerable questions as to whether one can reconcile the profit-seeking interests of shareholders in such companies with human rights, as well as to what extent legislation might be influenced by powerful lobbies interested in perpetuating the detention cycle. Continue reading

Criminal Law to the Rescue? ‘Wolf-Whistling’ as Hate Crime

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*

Eugène Delacroix’s Liberty Leading the People

Eugène Delacroix’s Liberty Leading the People

On July 13, 2016 Nottinghamshire police became the first force in the UK to recognise misogyny as a hate crime.  Hate crime is defined as ‘any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a personal characteristic’. In practical terms, this means that in Nottinghamshire police can record reported incidents such as wolf whistling, verbal abuse, taking photographs without consent, and using mobile phones to send unwanted messages with an additional ‘flag’ or qualifier on their incident log as hate crime.  It appears that the move is largely symbolic, as gender animus is not a relevant aggravating factor for the purposes of sentencing under relevant UK ‘hate crime’ legislation,[1] and does not create any new criminal offences.  However, the initiative has been supported by the force working in partnership with the Nottingham Women’s Centre and has involved the specialised training of officers to better identify and respond to the public harassment of women by men.

The announcement last week of the initiative was met with the predictable level of teeth gnashing and cries of ‘political correctness gone mad’ characteristic of any policy announcement addressed to countering gender inequality.  While the move may be largely bureaucratic, it does present an opportunity to look again at the spectre of criminalisation in our time and consider a related question: What is the role of the criminal law in regulating gender (in)equality, and what should it be? Continue reading

Singling Out Defence Procurement: Contract Pricing under the Single Source Contract Regulations

By Dr Luke Butler, Lecturer in Law (University of Bristol Law School).

38611963Whatever the fallout of Brexit, the UK will continue to take a leading role in the defence of Europe. In an age that will be defined by reduced defence budgets and increased security threats, the Government must ensure that the way it organises, procures and manages its defence capability delivers value for money. Historically, the legal aspects of defence acquisition have been largely underresearched. My latest monograph, UK Defence Acquisition: Organisation, Process and Management (Hart Oxford, forthcoming) will offer a first systematic analysis of an area currently undergoing unprecedented domestic legal reform. This blog focuses on efforts to regulate the escalating costs of defence contracts. Continue reading

Brexit and Notions of British Citizenship

By Dr Devyani Prabhat, Lecturer in Law (University of Bristol Law School).

DevIn a recent article, published in the inter-disciplinary journal Law, Culture, and Humanities, I have argued that a surge in number of cases of cancellation of British citizenship indicates a return to a loyalty-protection model of citizenship which was popular earlier during the two World Wars. Here, I will go further, and say that Brexit and the debates of exclusion of EEA nationals from the UK, are also influenced by the very same loyalty-protection view. The loyalty-protection view had become unfashionable in the aftermath of the Second World War but is now back in vogue. Continue reading

Potions and prosecution: a case from medieval Herefordshire

By Dr Gwen Seabourne, Reader in Legal History (University of Bristol Law School).*

© M.J. Seabourne. Tomb of John de Swinfeld, Hereford Cathedral

© M.J. Seabourne. Tomb of John de Swinfeld, Hereford Cathedral

In 1292, Herefordshire, close to the Welsh border, received a visit from the royal justices, touring England with a view to hearing legal disputes, investigating crimes and making a tidy profit for the king from the various fines imposed upon individuals and communities. Precociously bureaucratic, the machinery of royal government recorded much of what went on before the justices, bequeathing to future generations priceless insights into life and law at this early time.

One intriguing case from the rolls of this 1292 session gives important glimpses of several different aspects of medieval law and life. As I have noted in a recent article in Social History of Medicine, Isabella Plomet, a woman from Hereford, managed to obtain some measure of legal redress from Ralph de Worgan, a surgeon of sorts, who was found to have agreed to treat her for leg problems, but actually gave her a drug called dwoledreng and proceeded to rape her. Continue reading

The National Preventive Mechanism of the United Kingdom

By John Wadham, Visiting Senior Research Fellow at the Human Rights Implementation Centre (University of Bristol) and NPM Chair.*

john wadhamThe National Preventive Mechanism (NPM) describes the network of independent statutory bodies that have responsibility for preventing ill-treatment in detention.[1]  In every jurisdiction of the UK – England, Northern Ireland, Scotland and Wales the bodies in this network have the job of inspecting or monitoring every place of detention to try to prevent the ill-treatment of those detained. The inspection and monitoring bodies provide essential protections for anyone detained anywhere in the UK, many of whom are vulnerable.  Whether a person is compulsorily detained in a prison, an immigration detention centre, a psychiatric hospital, or as a child in a Secure Training Centre there is an organization designed to ensure that no ill-treated will be tolerated. Continue reading

“Brexit means Brexit”: What next for UK Trade?

By Dr Clair Gammage, Lecturer in Law (University of Bristol Law School).

empiretradeThe 13th July 2016 is likely to be remembered as one of the most significant dates in Britain’s recent history. Following the political fall-out from the EU Referendum our newly appointed Prime Minister, Theresa May, has taken office. In one of her opening statements, May has confirmed that “Brexit means Brexit” and it seems that the triggering of Article 50 TFEU is an inevitability – it is now a matter of when, and not if, the trigger is pulled. With this in mind, we should perhaps pause and reflect on the Cabinet reshuffle with a view to considering some of the possible negotiation strategies we may see in the near future. The negotiation strategy will be twofold: in one respect the UK must negotiate its way out of Europe, and in another respect the UK must formulate a coherent external trade policy in order that relationships with non-EU countries can be developed. Continue reading

Embracing the Uncomfortable Complexity of Police Legitimacy: The Only Way Ahead for Democratic Accountability?

By Ms Clare Torrible, Teaching Associate (University of Bristol Law School).

© Guardian

© Guardian

It can sometimes be easy to lose sight of the wood for the trees. The Policing and Crime Bill suggests a number of changes to the police complaints system and, having received its third reading in Parliament on June 13th looks set to make the statute books in due course.

However, as I have recently argued,* academic debate on police complaints can be conflicted and circular. Further, the reasoning in public debate is peppered with assertions (which seem to be presumed rather than tested) that reforms will deliver improvements in what, to my mind, is a worryingly ill-defined ‘public confidence’.

Policing is a necessarily conflicted social function. So by what measure can we assess the multiple reforms to police complaints and discipline that are about to be ushered in? In a recent article ‘Reconceptualising the Police Complaints Process as a Site of Contested Legitimacy Claims‘ I take a step back from the current academic and public debates and outline a new framework by which the true impact of these reforms might be assessed. Continue reading