What is the point of Business?

By David Hunter, Consultant, Charity & Social Enterprise Department (Bates Wells Braithwaite LLP) and Knowledge Exchange Fellow (University of Bristol Law School)[1] and Ms Nina Boeger, Senior Lecturer in Law and Director of the Centre for Law and Enterprise (University of Bristol Law School).

img-20161127-wa0001Businesses are, in some respects, like cement. They are an integral part of the society we inhabit, and yet for the most part invisible to us as tangible entities. We give them little thought, but our lives would be very different were we to wake up to a world without either.

In April 2016, the UK government did invite us to think about the nature of business though as part of what it called a Mission-led Business Review. It set up an Advisory Panel and ran a public consultation and, seven months on, the Panel has reported back to the government with its recommendations[2]. The timing is interesting, with the review commencing when David Cameron was still Prime Minister, before the UK’s Referendum on EU membership and the US election, but the publication of the Panel’s findings coming when those events have demonstrated a clear sense of public discontent with the status quo.

What was the Review about, what is a ‘mission-led business’ and what are the likely responses to and impact of the Panel’s findings? Continue reading

Same old, same old: The European Court of Justice’s fixation with the Plaumann test for individual concern

By Mr Konstantinos Alexandris Polomarkakis, Graduate Teaching Assistant and PhD Candidate (University of Bristol Law School).

© Trevor Parker

© Trevor Parker

In its Judgment in Ackermann Saatzucht and Others v Parliament and Council, joined Cases C-408/15 P and C-409/15 P, EU:C:2016:893, the European Court of Justice was given yet another chance to set out its position on the admissibility criteria, and more specifically on that of individual concern, for individuals to bring an action for annulment under the fourth paragraph of Article 263 TFEU.

This Judgment follows its recent rulings in T&L Sugars (C-456/13 P), Stichting Woonpunt (C-132/12 P), Stichting Woonlinie (C-133/12 P), Telefónica (C-274/12 P) and Inuit (C-583/11 P). The cases at hand were decided by the ECJ on appeal, lodged by two groups of German and Dutch operators active in the field of plant breeding, following the rejection by two orders of the General Court (in cases T-559/14 and T-560/14) of their  annulment actions against Commission Implementing Regulation (EU) No 511/2013 establishing the standard import values for determining the entry price of certain fruit and vegetables into the EU’s internal market.

The annulment of the said regulation was sought on the basis of it being incompatible with the content of Regulation (EC) No 2100/94 and the International Convention for the Protection of New Varieties of Plants. These laid down the breeders’ exemption granting plant breeders unrestricted access to protected varieties without a duty to disclose any information, something that was allegedly hampered by the entry into force of Article 4(3) of Regulation 511/13, which bestowed upon them an obligation of disclosure. Nonetheless, the said operators’ actions for annulment were dismissed by the General Court as inadmissible due to the lack of individual concern. In their appeal to the ECJ, they contested this finding, pleaded that the Regulation runs counter to higher ranking rules, and, also, claimed that because of the inadmissibility of their action, their right to effective judicial protection has been impinged. Continue reading

A law and political science analysis of the reform of EU public procurement rules

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

olykke-reformationMy most recent edited collection has now been published:
GS Ølykke & A Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar, 2016). It features contributions from a gender-balanced group of 16 young political science and EU economic law scholars based in 9 different EU/EEA Member States, including a number based at top UK universities. It is the result of a two year research project generously funded by the Copenhagen Business School and the Danish Gangstedfonden.

Using an innovative  interdisciplinary ‘law and political science’ methodology, the book carries out a critical assessment of the reform of the EU public procurement rules in the period 2011-2014. It does this by a detailed assessment of the initial Commission proposal for new rules, the travaux preparatoires behind it, as well as the several inter-institutional negotiation and compromise texts that resulted in the 5th generation of EU public procurement directives in 2014. Continue reading

Culture in the banking regulators: the need for challenge

By Dr Holly Powley, Lecturer in Law (University of Bristol Law School).

city-of-london-1In the aftermath of the financial crisis, a debate has been raging about the culture of financial services institutions – both in terms of how individuals working with financial institutions conduct themselves, but also on attitudes towards risk-taking within these institutions. Given that banks are now considered to provide consumers with a service that is essential to the operation of the modern economy, this is an important debate.

However, those tasked with regulating and supervising the banking sector haven’t escaped this scrutiny either. If the UK is to avoid a future financial crisis of the magnitude experienced between 2007 and 2009, there also needs to be a culture change within the institutions tasked with overseeing the UK’s financial services sector. The regulatory bodies need to be capable of challenging themselves, their policies, and the institutions they are tasked with supervising: they need to question the status quo. This means a move away from the ‘light touch’ approach that encompassed the Financial Services Authority’s (FSA) regulatory philosophy, avoiding ‘box ticking’ and introducing the exercise of judgement when making decisions about the supervision and regulation of the banking sector. Before the financial crisis, regulators didn’t challenge the conventional wisdom. It was believed that markets were stable, and that institutions were unlikely to fail. There was very little focus on financial stability issues, a point reflected by the fact that (as highlighted in the report on HBOS’s failure) only one of 61 issues discussed by the FSA’s board in the build up to the crisis related to financial stability. The crisis itself highlighted the flaws in that approach. To avoid this in the future, regulators have to ask difficult questions of themselves, and of the regulated sector. Continue reading

Brexit and Parliament: Doubting John Finnis’s Dualism

By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).

© Nick Weall

© Nick Weall

The news that the appeal will be heard by a full panel of 11 Justices of the Supreme Court confirms that the High Court’s ‘Brexit Judgment’ is of the highest constitutional significance. So the attention devoted to the judgment by eminent constitutional lawyers is hardly surprising. One powerful argument against the judgment, which is attracting a growing number of supporters, is made by Professor John Finnis in papers for the Judicial Power Project.

Finnis argues that the court mistakenly assumes that EU rights are ‘statutory rights enacted by Parliament’. On his view, the European Communities Act 1972 simply provides a means for making EU law rights enforceable in English law; they are not ‘statutory rights’ as such. Finnis draws an analogy with double-tax treaties. These serve to relieve individuals with connections to more than one country from being taxed twice on the same income. In order for this to apply, both state parties must maintain the international agreement. If one of them gives notice to rescind, as they are typically entitled to do under the treaty, the immunity lapses. In dualist systems such as the UK, there is thus an asymmetry between the creation and removal of rights. There are two conditions precedent for the enjoyment of any new right: an international treaty conferring that right, and an Act of Parliament giving effect to that treaty in domestic law. Both elements are needed to create the right, but if either condition precedent fails, so does the right. The mere fact that Parliament has to provide the domestic conduit does not stop the Government from turning off the international tap.

I am not convinced that this argument works in the context of the UK-EU relationship. Continue reading

EU rights as British rights

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).

eca-1972-imageAccording to a carefully argued contribution by Professor Finnis in the Miller debate, rights under the European Communities Act 1972 ‘are not “statutory rights enacted by Parliament”’; they are only ‘rights under the treaty law we call EU law, as it stands “from time to time”’. Finnis thus purports to have broken the chain of the claimant’s main argument.

In that connection, Finnis considers the somewhat recherché example of taxation treaties and the Taxation (International and Other Provisions) Act 2010 to be a useful analogy. The point of the present contribution is to suggest that a more natural analogy would be the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Like the ECA 1972, the HRA 1998 conditions the legal relationship between citizen and state in an overarching manner and deals with fundamental constitutional rights. There is also particularly instructive judicial authority on the HRA 1998 specifically on question of the nature of its relationship with the international treaty whose obligations it mirrors. Continue reading

Brexit, Environment and Devolution: the Welsh case

By Dr Margherita Pieraccini, Senior Lecturer in Law (University of Bristol Law School).

© BBC

© BBC

These were notes prepared for a seminar held by the External Affairs and Additional Legislation Committee of the National Assembly for Wales on the 31st of October 2016 to discuss the implications of Brexit for Wales in the field of environment and marine policy in particular. The notes discuss a number of constitutional and sector specific issues, key challenges and present some suggestions.    Continue reading

Tesco Bank and Cybercrime

By Mr Andrew Charlesworth, Reader in IT Law, and Prof Keith Stanton, Professor of Law (University of Bristol Law School).

© Tesco Bank

© Tesco Bank

The day has arrived on which a cyber attack has succeeded in breaching a bank’s security with the result that customers’ money has been taken from their accounts. According to press reports the accounts of around 40,000 customers of Tesco Bank have been accessed and the bank has refunded £2.5 million to 9,000 who have had money removed.

Banks’ IT systems are an obvious target for cybercriminals.  The fact that such systems contain both money and data on customers makes them extremely tempting. As banks have developed new channels for delivery of services, such as websites, mobile applications and social media, these have often been added, or linked, to existing out-dated systems. This increased complexity may mean that new avenues of attack are inadvertently created, and make it difficult for a bank to rapidly pinpoint the source of system risks and breaches. The increased use of distributed computing, with multiple systems running across multiple servers, can also create new system risks and simultaneously increase the number of staff requiring access.  While external threats are increasing, it appears that industry insiders remain responsible for a significant share of bank fraud.  How the Tesco cyber attack was carried out remains unclear, but the scale and speed of the transfer of funds suggests a degree of sophistication. Continue reading

Miller: Why the Government should argue that Article 50 is reversible

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

© PA

© PA

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.  Continue reading

The forgotten victims of Somali piracy

By Dr Sofia Galani, Lecturer in Law (University of Bristol Law School).

20110205_irm919In October 2016, Somali piracy made headlines again, and the release of a group of seafarers who had been in captivity for nearly five years, reminded the international community of the adverse impact piracy has had on seafarers.

Piracy had always been a major maritime security threat, but the first two decades of the 21st century were marred by an unprecedented scale of pirate attacks off the coasts of Somalia. Between 2010 and 2014, almost 9,688 seafarers were attacked by Somali pirates and 2,060 seafarers were taken hostage. The estimated cost of ransom payments for the vessels and crews seized during the period 2005-2014 was between US$340 million and US$435 million. Somali pirate attacks have significantly dropped over the last two years, but Somali piracy has not come to end yet. In 2015, five hijackings were reported in the Western Indian Ocean where a number of seafarers remained in captivity. Continue reading