European Union (Withdrawal) Bill: Paving the way towards a very uncertain future

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

The stated aim of the, then Great, Repeal Bill was to provide clarity and certainty for citizens and businesses, and to ensure a functioning statute book on exit from the EU. The key statement of principle in the White Paper was as follows: ‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before’ (for analysis, see here).

However, the continuity provided by what is now the European Union (Withdrawal) Bill, published last week, must be seen in the context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame (see here). After all, the Government’s aim is that, as a result of Brexit, the UK will be able to decide which parts of EU-derived law to keep, and which to amend or repeal. A number of Brexit Bills, which will change the law in relation to, among others, immigration, trade, customs, agriculture and fisheries, were promised in the Queen’s speech. The clarity and certainty promised in the White Paper, which at first glance appear to provide comfort to citizens and businesses concerned over the effects of Brexit, are more elusive than ever. Continue reading

New Challenges for European Comparative Law

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

Dr Jule Mulder has published an article on European comparative law methodology entitled New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multilayered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization.[1] This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. Continue reading

Grenfell Tower – learning from air accident investigations

By Prof Chris Willmore, Professor of Sustainability and Law (University of Bristol Law School).

When accidents happen, supporting those affected should be everyone’s first step. But then, rapidly, we need to ask two further questions:

  • how can we prevent future accidents (causation)?
  • who is responsible (liability)?

This blog suggests we are not effectively distinguishing between these two questions, and this may undermine the effectiveness of the investigations now under way. Continue reading

Scoping the impact of Brexit for NHS procurement

By Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).

NHS England spends over £20 billion every year on goods and services, which typically accounts for around 30% of the operating costs of each hospital. A significant part of the remainder of NHS non-salary budget involves the commissioning of health care services. This expenditure and commissioning is controlled by NHS procurement rules, which in part derive from EU law. Different procurement rules apply in different countries within the UK, and both Scotland and Northern Ireland both have separate regulatory schemes. Even though this post only focuses on the situation in England, some issues reflect broader concerns in the UK context. Generally, NHS procurement rules are regularly criticised for imposing excessive red tape and compliance costs on the NHS, and calls for NHS procurement reform to free it from such strictures are common.

In this context, Brexit could be seen as an opportunity to overhaul NHS procurement and to move away from the perceived excesses of EU law (see eg Cram: 2016). However, I think that it is far from clear that such reform could not fit within the blueprint of EU law, and that most of the constraints on NHS procurement rather derive from independent decisions adopted by the UK over the last 25 years. Moreover, from an economic perspective, Brexit will probably hurt the functioning of the NHS (including its procurement), with or without significant regulatory reforms.

This post is based on my presentation at the event Brexit, Regulation and Society, held by ManReg on 13 June 2017, and concentrates on two issues. First, does EU law prevent significant reforms of NHS procurement and, if so, can Brexit suppress such constraints? Second, is the way the Brexit process is unfolding conducive to an improvement of NHS procurement, both from an economic and a regulatory perspective? Continue reading

The importance of the advice sector in the context of legal aid cuts

By Dr Sarah Moore, Lecturer in Sociology (Department of Social and Policy Sciences, University of Bath).

The Law School blog has the pleasure of welcoming this guest post by Dr Sarah Moore, who was one of the participants in the recent book launch of Advising in Austerity. Reflections on challenging times for advice agencies (Policy Press, 2017). Dr Moore is also the co-author of Legal aid in crisis. Assessing the impact of reform (Policy Press, 2017) and offers here her insightful views on the need to boost the activities and funding of the legal advice sector.

Anyone familiar with legal aid reform will know that the Legal Aid and Sentencing of Offenders Act 2012 (LASPO) has dramatically altered the meaning and nature of legal aid. It has meant, amongst other things, a significant reduction in funding, largely achieved by taking a large number of areas of civil law out of scope, including private family law cases, and almost all cases involving social welfare, housing, medical negligence, immigration, debt, and employment.

The most strenuous critics of LASPO have pointed out that the recent funding cuts restrict people’s access to justice. In answering to these problems, LASPO incorporated a set of exceptions. Those who could provide evidence that they had been victims of domestic violence, for example, were to be given access to legal aid to pursue family law cases. And an Exceptional Case Funding caveat was incorporated in the Act for those who could successfully make a case that their human rights would be breached without publicly-funded legal assistance. Both have been woefully inadequate. Continue reading

Abortion rights in Northern Ireland

A comment on R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41.

By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).

The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties.  On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.

The case

In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].

A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2. Continue reading

‘Bare’ arbitration clauses under the UNCITRAL Model Law on International Commercial Arbitration

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

As every student of international commercial arbitration ought to know, an arbitration agreement should not only impose on the parties a binding obligation to refer a certain dispute (or certain types of dispute) to arbitration but also, as a minimum, indicate the place (or seat) of arbitration and provide a mechanism for the appointment of the arbitral tribunal. Unfortunately, the drafting of arbitration clauses in commercial contracts often leaves much to be desired; in a case involving a badly-drafted arbitration clause, disputing parties who are unable to resolve their disputes by negotiation may find themselves getting bogged down in one or more of the procedural problems to which pathological arbitration clauses frequently give rise.

Particular difficulties may be posed by so-called ‘bare’ clauses – that is, clauses which merely provide for submission of disputes to arbitration without specifying the place of the arbitration, the number of arbitrators or the method for establishing the arbitral tribunal. If, once a dispute has arisen, the parties are unable to agree on the appointment of an arbitral tribunal, the claimant may encounter practical difficulties in activating the arbitration machinery and getting the arbitral tribunal established. Continue reading

The Freedom of Religion: A threat to global security, or a means of enhancing it?

By Prof Sir Malcolm Evans, Professor of Public International Law (University of Bristol Law School) and Chair, United Nations Subcommittee for Prevention of Torture.*

N White, Genesis (1999).

In recent years the relative importance of religion as an issue of legal and political significance has increased considerably.  For example, it took nearly forty years before the first human rights case concerning freedom of religion or belief came to be considered by the European Court of Human Rights; and in the 1990s official reports of the Council of Europe could express surprise that religion was still proving to be an important political factor in some parts of Europe. Few would advance such a claim today.

Some put this down to the rise in the numbers of religious believers globally; that is, religion is becoming more important simply because there are more religious believers.  It is certainly the case that there are now more people with religious beliefs on the face of the planet than at any time in history. But this does not explain the rise in the importance of religion in global politics. Nor does the increase in the absolute numbers of religious believers necessarily undermine the argument – so popular in Europe for so long – that religion is becoming increasingly unimportant to public life. Continue reading

ESG investing and section 172 of the Companies Act 2006: Desperate times call for soft law measures

By Dr Georgina Tsagas, Lecturer in Corporate Law (University of Bristol Law School).

In this blog entry, Dr Tsagas provides an overview of her proposal for the reform of the UK’s Corporate Governance Code. Her full arguments will soon be published in G Tsagas, “Section 172 of the Companies Act 2006: Desperate times call for soft law measures”, in N Boeger and C Villiers (eds.), Shaping the Corporate Landscape: towards corporate reform and enterprise diversity, Oxford: Hart Publishing, forthcoming.

Section 172 CA 2006: Not worth the paper it is written on?

Section 172 of the Companies Act 2006 has been afforded much attention during Parliamentary discussions on the codification of directors’ duties and has since the enactment of the Companies Act 2006 occupied much space in discussions among scholars who share an academic interest in the shareholder/stakeholder debate, in policy documents on law reforms following a series of corporate failures, as well as in company law lecture notes provided by Law Schools across the UK.

The previous duty to act bona fide in the interests of the company has been substituted by section 172 CA 2006, which imposes on a director the duty to ‘act in a way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole’ and in doing so must have regard to a series of factors listed in the section. The factors are: (a) the likely consequences of any decision in the long term, (b) the interests of the company’s employees, (c) the need to foster the company’s business relationships with suppliers, customers and others, (d) the impact of the company’s operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f) the need to act fairly as between members of the company.

With the UK leaving the EU, it is a critical time to discuss enlightened decision-making on boards, considering that, arguably, one of the key benefits of joining the EU with regard to UK company law, was that the UK was prompted to consider incorporating provisions affording a certain level of protection to the interests of other constituencies across a wide range of company and securities law Acts and regulations. What often escapes the attention of participants in discussions surrounding s. 172 CA 2006, is the section’s limitations not so much in terms of it prioritising the interests of shareholders over the interests of other constituencies, but with regard to its enforcement and utility overall. Continue reading

Advising vulnerable young people

By Mr John Peake, Director of the Law Clinic (University of Bristol Law School).

© David McKelvey

Kate Aubrey-Johnson writes that vulnerable children are not impressed by barristers’ textbooks. But then who would be. Certainly not the majority of young people who are drawn into the criminal justice world.

But the points she makes about the need for youth advocates to be specially trained and equipped with the communication skills needed to engage with vulnerable young people are as valid when advising the majority of young people as when representing those young people who are brought into the youth justice system.

For the first few months of my time as Director of the University of Bristol Law Clinic we were running drop in sessions initially with Creative Youth Network and then in conjunction with Kids Company. Both of these sessions operated from premises in Silver Street in the centre of Bristol but there was a marked disparity between take up. In the three months we were running sessions through Creative Youth we maybe saw two people. In contrast we would normally see at least two young people at each of the weekly Kids Company sessions. Some of the Kids Company young people continue to receive help from the Clinic. So why the difference?  Continue reading