Monthly Archives: May 2016

Some thoughts on European and national non-discrimination law and Brexit

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

largeEuropean non-discrimination law is a great example of how legal ideas travel around the globe and are modified and improved in the process. As well demonstrated by Fredman[1] and Schiek,[2] non-discrimination law did not originate in Europe nor can the European influence be negated. For example, the concept of indirect discrimination can be traced back to international law and was also pioneered in the US case of Griggs v Duke Power,[3] which challenged under the Civil Rights Act 1964 employment practices that required High School diplomas in order to access specific jobs. This US legal development then inspired European Common Law jurisdictions—most notably the UK—to incorporate similar concepts in their national law (see e.g. Sex Discrimination Act 1975 and Race Relations Act 1976), and the concept of indirect discrimination finally reached the EU in the early 1980s when the Court of Justice of the European Union (CJEU) explicitly referred to the Griggs in its Jenkins Judgment,[4] a case which also originated in the UK.

However, this initial influence from the UK and other common law jurisdictions did not halt in this development. Rather, what started as a relatively insignificant equal pay provision in the Treaty of Rome (Article 119 EEC) and a political compromise between Germany and France,[5] has developed into a large equality framework protecting the characteristics of sex, race and ethnic origin, religion and belief, age, disability, and sexual orientation (e.g. Directives 2000/43, 2000/78 and 2006/64) and goes beyond employment discrimination by also tackling sex and race discrimination within the access to and supply of goods and services (Directives 2000/43 and 2000/113). The 2000 directives expanding the personal scope of EU non-discrimination law were particularly affected by Anglo-Dutch intellectual thought and influence,[6] as jurisdictions that had most significant experience with non-discrimination law covering a wide number of protected characteristics. These new directives, alongside the CJEU interpretation of all the directives and equal pay provision (now Article 157 TFEU), then in turn influenced the law of the Member States including the UK legal framework. Continue reading

Brexit and Worker Rights

By Prof Michael Ford QC, Professor of Law (University of Bristol Law School).

walker-recall-workers-rights-sign-matt-schilder-630x4001

It is now pretty well-known that most of the employment rights in the UK are guaranteed by EU law—the principal exceptions are unfair dismissal and the national minimum wage —as I explained in a recent advice for the TUC. UK legislation on race discrimination, sex discrimination, equal pay and disability discrimination may have pre-dated EU Directives in these areas, but EU law led to protection against other forms of discrimination, such as detrimental treatment owing to age, sexual orientation and religion and belief. Over the years EU law has greatly supplemented or overwritten the domestic regime, almost always in favour of workers’ rights – removing limits on damages, recognising that pregnancy discrimination did not need a comparator, changing rules on the burden of proof, allowing equal pay claims for work of equal value, protecting against harassment and post-employment victimisation. I could go on.

Now extending far beyond discrimination, the EU-guaranteed rights include almost all the working time protections, including paid annual leave and limits on working hours; the protection of agency, fixed-term and part-time workers; rights on the transfers of an undertaking (extremely significant in a world dominated by out-sourcing); many rights to information and collective consultation; the most important health and safety regulations; the right to a written statement of terms of employment; protections in insolvency derived from the EU Insolvency Directive, which led to important extensions to the state guarantee of pension benefits and protection of other claims where the employer is insolvent (no doubt to be in play in relation to British Home Stores); and EU data protection law, the driving force behind the Information Commissioner’s Employment Practices Code, providing some controls over the monitoring and surveillance of workers. Continue reading

Universities and Counter-Terrorism in the UK: ‘Educators Not Informants!’, ‘Boycott Prevent!’?

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

PreventHow – consistent with democracy, human rights, the rule of law, and the preservation of cosmopolitan community cohesion and public confidence in law and its enforcement – should the UK respond to the threat posed by terrorism and, in particular, how should it seek to prevent people, especially vulnerable young people, from being enticed into it? These questions have arisen in a particularly acute form as a result of the Counter-Terrorism and Security Act 2015 which, amongst other things, imposes a legal duty upon schools, universities, charities, the NHS etc – but not directly upon their staff individually – to ‘have due regard to the need to prevent people from being drawn into terrorism.’ This may include banning some activities, regulating others, and/or taking appropriate steps to identify those who may be at risk and to refer them to appropriate welfare agencies.

The policy of the University and College Union (UCU) – which represents over 110,000 academic and other staff in higher and further education in the UK – is to boycott the requirements of the Act and the wider ‘Prevent strategy’ of which it is a part, on the grounds that they seriously threaten academic freedom, stifle campus activism, require staff to engage in racial profiling, legitimize Islamophobia, and jeopardize safe and supportive learning environments. Hence the slogans ‘Educators Not Informants!’, ‘Boycott Prevent!’, ‘Prevent Prevent!’ and ‘I Dissent from Prevent!’ which circulate in and around the campaign. This blog summarises work in progress – part of a much larger project concerning terrorism, counterterrorism and human rights in the post-9/11 UK – which argues that the UCU boycott is not only illegal, illegitimate and deeply flawed, but also potentially dangerous and irresponsible.

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Time to listen: A spotlight on mental health

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

Recent research indicates that a large percentage mental health awareness week hp-handsof patients living with severe mental health problems do not feel actively involved in their treatment plans. In this blog, Dr. Judy Laing outlines how this runs contrary to basic human rights principles and how it’s time that patients’ rights and voices are put firmly at the centre of all decision-making about their care, treatment and admission to hospital. Continue reading

Climate change and the new economy

By Prof Bronwen Morgan, Professor of Socio-Legal Studies (University of Bristol Law School).*

57038b77a959739f43138d18_Issue13Spring2016As 2016 lengthens its stride, the ambivalent euphoria of the Paris agreements on climate change gives way to a sense of ‘where to from here?’ While the technicalities of the Kyoto Protocol were never easy fodder for inspiring collective action, the new terrain is arguably even more forbidding on that score. Each country will submit Nationally Determined Contributions, a welter of sector-specific plans and measures which will be assessed, monitored, analysed and reviewed by carbon management professionals via procedures still being fought over. This is, from the perspective of global climate treaty processes, a ‘bottom-up’ approach to responding to climate change.

What if, instead, we were to turn our collective attention to a very different conception of ‘bottom-up’, a grass-roots process of building a new economy as a response to climate change? Not the new economy of the tech start-up world, itself an extension of arguably over-optimistic hopes that the economy-as-usual can, with the help of science and technology, provide products or processes that will decouple growth and carbon emissions. No, the ‘new’ here is more about the way ‘economy’, ‘market’ and ‘exchange’ can be re-imagined so that they move away from the extractive processes that damage our ecology. Innovation is socio-ecological more than technological, internalising a more generative relationship to the resource base upon which production and consumption depend. Continue reading

The EU, Brexit and nature conservation law

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

Crane-Photo1-351x185The EU plays a fundamental role in shaping the environmental law regimes of its Member States and that of the UK is no exception. A significant proportion of current domestic environmental law derives from EU Regulations (that automatically become part of English law) and EU Directives (that are implemented through national legislation).

Nature conservation law, i.e. the legal regime used to protect environmentally significant habitats and species, is a case in point and the focus of this blog. Conserving nature is key not only from a purely biodiversity standpoint but also from an ‘ecosystem services’ perspective. Ecosystem services are the benefits nature brings to the environment and to people, including supporting services (e.g. nutrient cycling), provisioning services (e.g. food), regulating services (e.g. carbon capture) and cultural services (e.g. recreation). Continue reading

For Africa, the International Community is a Myth

By Dr Foluke Ifejola Ipinyomi, Teaching Associate (University of Bristol Law School).

© Ann Moore

© Ann Moore

This post is based on an article* in which I argue that ignoring African particularity reduces the effectiveness of the international community and almost certainly ensures that international law is never obeyed… except in cases of self-interest.

What is the International Community?

At the sight of any potential cross-border malaise – disease, conflict, terrorism – calls are made to the international community to act. Why do the calls to the international community not go through? Is there a faulty connection? Or have we run out of airtime? The answer is quite simple. We are mostly dialling a wrong number. Depending on who is making the call, calls to ‘the international community’ could be obliquely referring to all states, all humanity, the UN, the US and Europe or states with liberal democracies. This identity crisis almost always results in a lot of buck-passing. As the poem goes ‘Everybody thought that Anybody could do it, but Nobody realized that Everybody wouldn’t do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.’

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The cost of using the Family Court

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

Proposed-£75-increase-to-possession-claim-court-feeThe Family Court system costs a lot to run. Until 2008 much of the cost of running the courts came from taxes, but increasingly litigants are expected to foot the bill. So the court system cannot be thought of as simply part of securing a Just Society, like the Police, the Armed Services and Parliament, all of which are paid for from taxes. Rather courts exist as a service for those who want to litigate.

Court fees have been raised repeatedly, and for some types of proceedings, including divorce, actually exceed what it costs to provide the service. The court fee for divorce is £550. Applicants for divorce subsidize other cases where the full economic cost cannot be charged. The courts have a monopoly over divorce, which is secured by the criminal law! Remarrying whilst still married is a crime – bigamy.

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