All companies are equal, but some companies are more equal than others

The new Industrial Strategy under the May Government and its implications for regulating takeovers in the UK

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

© Barnyz https://www.flickr.com/photos/75487768@N04/

The regulation of takeovers constitutes a highly sensitive topic insofar as takeovers may be the means by which control over a typically dominant corporation in one EU Member State is transferred from its holder to a foreign acquirer. The issue of how takeovers are regulated is therefore not only of interest to investors and the broader business community, but is ultimately an issue which attracts the interest of national governments and industry-specific authorities, as it can affect important institutions within a Member States’ economy.

The phrase ‘All animals are equal, but some animals are more equal than others’ is one of the most memorable phrases of George Orwell’s highly political literary book ‘The animal farm’. The story narrates how the animals of the farm attempt to revolt against man as their ruler in order to create a farm which will be run by all animals on an equal basis. However, certain animals eventually prevail over others abusing their power, collaborating with the former ruler and dominating in the same way in which the ruler they had overthrown had. ‘The animal farm’ constitutes a satirical allegory of the Russian Revolution and in essence criticizes the way in which control is in fact exercised in societies that have otherwise been founded on the ideology of equality. Though not a society per se, but rather a union of Member States, the EU has been founded on similar principles of equality or rather principles of ‘non-discrimination’ introducing the four freedoms which apply to natural, as well as to legal persons throughout the Union. Continue reading

A good year for torturers?

By Prof Nicholas Hardwick, Professor of Criminal Justice (Royal Holloway, University of London) and collaborator of the Human Rights Implementation Centre (University of Bristol Law School).

2017 looks set to be a good year for torturers.

Most noteworthy, they have received a glowing endorsement from President Trump. When it was put to him in a recent ABC interview that during his election campaign he had said he would “bring back waterboarding…and a hell of a lot worse” he did not demur. “Would I feel strongly about waterboarding?  As far as I am concerned we have to fight fire with fire,” he said.  “Absolutely I feel it works”, he went on.

It is true he qualified his remarks by stating that he would defer to the views of his defence secretary, James Mattis, and CIA director, Mike Pompeo, both of whom have said they would abide by the existing prohibition, and it is true there would be formidable political and legal obstacles to overturning the ban on torture. But it cannot be denied that the moral and operational case against torture has been dealt a heavy blow. Torturers worldwide can claim Trump has said torture is acceptable and it works. Continue reading

Dicta… Dictators and Law

By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).

One key piece of knowledge all law students are expected to grasp early on in their legal career is the difference between what a judge says – dicta or obiter dicta and what a case means – the ratio or ratio decidendi. Even when they know the difference, students and practising barristers often prefer to reach for a quotation from a case. It can be comforting to use a well-rounded phrase from Smith J or Jones LJ and it may at first glance suggest wisdom when it really is just about memory. However, reliance on dicta is a really bad habit, does not make better lawyers and can seriously undermine what the law means.

In the hands of some judges dicta are powerful ways of communicating ideas – judicial soundbites – which make the case and the judge memorable. Lord Denning was a past master at this, making it easy to remember the facts of cases, but not always the law. Indeed Lord Denning’s skill with language enabled him to make or even make up law. Of course he was largely dealing with Common Law, developing contract and tort law rather than interpreting statute. Continue reading

Time to be realistic about human rights?

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School).

© Deridder45

The case of Phil Shiner, struck off by the solicitors’ disciplinary panel for the attempted procurement by financial inducements of spurious abuse claims against the British army in Iraq, sadly illustrates that the ‘post-truth’ era has penetrated even the noble cause of human rights (‘Review of Iraq war cases after lawyer struck off’, Guardian, 3 February 2017).

While this episode is, of course, a grotesque aberration, myth, misinformation, misrepresentation, and intellectual tunnel vision, coupled with excessive and unsustainable demands, are, nevertheless, increasingly prevalent in the contemporary movement, and not confined to its opponents as many might suppose. This not only devalues the currency, it also stokes the scepticism towards human rights currently sweeping western states and societies. Continue reading

Law and Politics in the Supreme Court

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

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. Continue reading

Article 50, the Supreme Court judgment in Miller ~ and why the question of revocability matters more than ever

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

With the Supreme Court having ruled on 24 January 2017 that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU has revolved around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the Government’s negotiation position. This post puts forward the hypothesis that such debates may be irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable (Prof Syrpis).

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the Government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50.  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s intention to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration. Continue reading

Protecting civil society against shrinking spaces

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

On Thursday 26th January a debate took place in Parliament* on the ‘shrinking space for civil society’ in international human rights protection. I was recently at a meeting where it was pointed out that this description of the problem – which is much discussed in international circles at the moment – made it sound vaguely as if it was something to do with washing things at the wrong temperature, and meant very little to most people. To the extent that effective human rights protection is based on openness and transparency, which might be summed up in the idea of ‘washing dirty linen in public’, the idea of human rights being ‘shrunk in the wash’ at the moment is not altogether a bad one – but this hardly helps convey the significance of what is taking place and why it matters enough to warrant a debate in Parliament. The reality is that there is something extremely worrying going on in many parts of the world – which is that those who stand up for those in need are themselves increasingly subjected to various forms of attack, including physical attack, for doing so. Continue reading

Transparency in public procurement is necessary, but not for all to see

By Dr Vitali Gretschko, Head of the Market Design Research Group (ZEW Mannheim) and
Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).*

The airport Berlin-Brandenburg, Stuttgart 21, and the Elbphilharmonie have one thing in common. Irregularities in the procurement process and delays in execution led to immense cost explosions to be covered by taxpayers. Thus, given the risks of corruption, favouritism and misuse of public funds, the award and management of public contracts requires a high level of scrutiny to avoid mismanagement and waste.

Moreover, even when things go well, improvements in public procurement law can have significant effects. Today, over 250 000 public authorities in the EU spend around 14 per cent of the GDP on the purchase of services, works, and supplies. Even small relative efficiency gains through carefully crafted rules can therefore result in savings in the billions. Therefore, the design of procurement rules need to reach a balance between safeguarding economic efficiency through competition and ensuring the proper level of transparency and accountability. Continue reading

Toward a ‘Global Britain’: The post-Brexit landscape

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

In the Prime Minister’s speech of 17 January 2017, in which the Brexit trade negotiation strategy was announced, Theresa May was keen to reassure the world that a ‘Global Britain’ would rise from the ashes of the now infamous June referendum. Outlining twelve core objectives to be pursued in the process of withdrawal from the EU once Article 50 has been triggered, May revealed little substantive detail about what the UK wants from the EU and, indeed, from the rest of the world. Underpinning the strategy is the first objective of “certainty” – certainty for industries, for workers, and for the general population. We now know that the European Communities Act will be repealed but EU law will be translated into the UK legal system. Of course, it is then the choice of Parliament to decide which laws stay and which laws go – presumably depending on the extent to which those laws reflect our Global British values according to the legislature. Will the first objective of “certainty” allay the fears of industry, the public sector, and the general population? The answer to this question rests entirely on the way in which the negotiations are handled from this moment on. So, what does the speech tell us in terms of the post-Brexit trading strategy?

There are two key aspects of the trade strategy going forward: withdrawal from the EU and a renegotiation of our terms with the EU; and, the UK’s trading relationship vis-à-vis the rest of the world which will take the form of WTO compatible free trade agreements (FTAs). FTAs are economic spaces in which the countries to the arrangement reduce tariffs on substantially all the trade that falls under the agreement but each individual member retains its own external tariff with other countries on those goods. The first and second limbs of the trade strategy are interrelated and once Article 50 has been triggered a new form of foreign policy-making that I have (rather tongue-in-cheek) coined “Global Britain external relations law” will begin to manifest. Continue reading

When Christmas drinks go wrong – Vicarious liability and the ‘course of employment’ test in the High Court

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

The office Christmas party is something many of us will have enjoyed recently.  In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14).  Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.

In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director. Continue reading