Maximising the Legitimacy of the EU’s Regulation of Geoengineering Research

By Dr Janine Sargoni, Lecturer in Law (University of Bristol Law School).*



In what has been described as ‘nature’s own great climate experiment’, the 1992 eruption of Mount Pinatubo in the Philippines provided scientists with data to refine their climate models.   After the eruption, average global temperatures dropped temporarily as particles released into the stratosphere increased the Earth’s albedo.   Solar Radiation Management (SRM) – or ‘reflecting sunlight to cool earth’ – developed notionally thereafter as a means of reducing global average temperatures resulting from increased greenhouse gases.

Pinatubo provided all kinds of data which helped increase the accuracy of climate models eventually predicting with relative certainty the temperature-cooling climatic impacts of SRM, whilst leaving relatively uncertain – or unknown – the extent of environmental impacts, such as those arising from changing patterns of rainfall.  The current limitations of models in telling us about localised environmental uncertainties could be reduced if research into the effects of SRM took place outdoors, or in the field, so to speak.  But that research would actually constitute deployment which itself would generate uncertain environmental effects.   Given these significant constraints it is not possible to establish to what extent SRM technologies are effective or reliable and therefore it is imperative that a legitimate regulatory process is secured in which decisions about its research and deployment can be taken.

This new article* sets out how risky SRM field research might be regulated in the EU in such a way as to maximise legitimacy.  It suggests that under particular conditions the EU could delegate to an independent agency powers to undertake what I call an incorporated risk assessment; an assessment in which science and politics, expertise and lay-knowledges are combined.  Legitimacy would be maximised because the EU’s regulatory framework relating to the risks of SRM field research would be legal and also responsive, flexible, deliberative and inclusive. Continue reading

It’s time for change: World Mental Health Day 2016

By Dr Judy Laing, Reader in Law (University of Bristol Law School).

world-mental-health-dayToday is World Mental Health Day and time for us to spare a thought for the millions of people around the world suffering from mental health problems. The World Health Organization (WHO) estimates that one in four people in the world will be affected by mental/neurological disorders at some point in their lives. Approximately 450 million people in the world are suffering from these conditions at any one time. This means that mental disorder is among the leading causes of ill-health and disability worldwide.

The WHO has urged governments to move away from large mental institutions and towards health care in the community. Governments must also ensure that mental health care is well integrated into the general health care system. Whilst many Western governments have adopted this de-institutionalisation approach, treatment facilities and standards in many countries, especially in the developing world, are still woefully inadequate. Indeed, the WHO reports that more than 40% of countries have no mental health policy and a quarter of countries don’t even have any form of mental health legislation or regulation of mental health care. Added to this is the troubling fact that mental health services across the globe are continually under-funded: 33% of countries spend less than 1% of their total health budgets on mental health care/services. Continue reading

Exploring legal approaches to climate justice: Reflections from the South Pacific

By Alice Venn, PhD Candidate (University of Bristol Law School).*

south-pacificThe South Pacific is one of the most vulnerable regions in the world to climate change impacts. The images conjured up of sinking small islands surrounded by miles of rising oceans however do little justice to the vibrant cultures, diverse landscapes and close-knit communities I recently encountered there. As part of my PhD project exploring the legal protection available to climate vulnerable states and communities I was fortunate enough, with the support of the South West Doctoral Training Centre, to be awarded a three month visiting researcher position at the University of the South Pacific in Port Vila, Vanuatu. I spent my time there gathering data, primarily through a series of interviews with key stakeholders from national government, local law firms and NGOs, as well as with a number of regional organisations during a short trip to Fiji. Continue reading

Celebrating the life and work of Professor Bernard Rudden (1933-2015): BACL Annual Seminar 2016

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School) and President of the British Association of Comparative Law.

ruddenProfessor Bernard Rudden DCL, LLD, FBA was Professor of Comparative Law at the University of Oxford from 1979-1999 and Professorial Fellow of Brasenose College, Oxford.  On 6 September 2016, the British Association of Comparative Law (BACL) held its annual seminar in his honour at St. Catherine’s College Oxford.  Its theme was: ‘Bernard Rudden – Comparativist, Legal Scholar, Polymath’.

Professor Rudden, a noted comparative private lawyer, passed away on 4 March 2015, aged 81. His obituary in The Times newspaper described him as a “legal polymath who published extensively on Soviet law”, but the seminar sought to go beyond this succinct description and identify not only Rudden’s contribution to comparative law scholarship but also his impact as a friend, colleague, teacher of law and mentor to numerous comparative law academics. Continue reading

Immigration enforcement in the Byron aftermath: The legal limits of what can be required from employers

By Dr Katie Bales, Lecturer in Law (University of Bristol Law School).*

36b0c79400000578-3714197-image-a-24_1469780776407In July 2016 the Byron hamburger chain colluded with Home Office officials in setting up immigration raids on their workforce which resulted in the arrest and detention of 35 of their workers. Following mass protests over their actions, Byron released a statement declaring that the firm ‘was unaware that any of our workers were in possession of counterfeit documentation’. Despite the fact that ‘vigorous right to work checks were carried out’, Byron claimed that ‘sophisticated counterfeit documentation was used’ by the workers meaning Byron had no idea that those individuals were without the right to work. Byron also claimed that they were under a ‘legal obligation’ to cooperate with the Home Office, suggesting that cooperation with Immigration enforcement was mandatory as opposed to voluntary.

A recent report from Corporate Watch indicates that this type of collusion is not uncommon as immigration enforcement officials often use financial sanctions as a threat to coerce employers into helping with their investigative and arrest operations. The financial sanction referred to exists in the form of a ‘civil penalty’ which stands at £20,000 per worker that is found to be working ‘illegally’ without the right to work. Discounts are made however where employers cooperate with the Home Office. A £5,000 discount will be made for example, where employers report workers and a further £5,000 for active cooperation, a full list of these discounts can be found in the Home Office code of practice on the civil penalty scheme for workers.

The questions raised by the Byron press release and the further report from Corporate Watch concern the extent of the legal obligations placed upon employers in terms of immigration enforcement. Are employers legally obliged to set up ‘arrest by appointment’ meetings for staff for example? And do any of the legal obligations owed to employees or workers conflict with those related to immigration enforcement? Continue reading

The EU public procurement remedies directive needs some revision, and the Commission should not shy away from it

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

my-performance-reviewEU public procurement law relies on the specific enforcement mechanisms of the Remedies Directive, which sets out EU requirements of administrative oversight and judicial protection for public contracts. Recent developments in the case law of the CJEU and the substantive reform resulting from the 2014 Public Procurement Package may have created gaps in the Remedies Directive, which led the European Commission to publicly consult on its revision in 2015. One year after, the outcome of the consultation has not been published, but such revision now seems to have been shelved. In a chapter* I am contributing to an edited collection, I take issue with the shelving of the revision process and critically assesses whether the Remedies Directive is still fit for purpose. Continue reading

We need a new corporate landscape

By Prof Charlotte Villers, Professor of Company Law, and Ms Nina Boeger, Senior Lecturer in Law (University of Bristol Law School–Centre for Law and Enterprise).

© Childs & Sulzmann. Artist’s impression of Boxworks at the Engine Shed

© Childs & Sulzmann. Artist’s impression of Boxworks at the Engine Shed (Bristol)

Our corporate landscape has relevance for our post-Brexit future. Yet deep public distrust exists not just with regard to our politicians but also with regard to business. Recent debacles involving the now defunct British Home Stores and Sports Direct are just the tip of the iceberg in what is widely seen as a broken economic and political system that has given precedence to the leading market actors.

Corporate governance is the key means by which global wealth is distributed but that wealth is not distributed fairly. Two stakeholder constituents are prioritised: boardroom directors who frequently enjoy eye-watering pay and perks, and shareholders, at least in theory, through the profit maximisation imperative. Both groups have focused on making a quick buck rather than the long term interests of their companies. Workers, at the bottom of the corporate hierarchies, have little chance of improving their means of living and face greater levels of insecurity in their working and home lives. Workers further down the supply chain risk their lives trying to scratch a living in countries only too glad to gain trade from the powerful multinationals.  Consumers lose out as product quality and services are whittled down and the environment, as a natural resource constituency, barely gets a look in. Continue reading

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