Author Archives: legalresearch

New LLM: Health, Law, and Society

By Prof John Coggon, Professor of Law and Co-Director, Centre for Health, Law, and Society (University of Bristol Law School).

Scholars at the University of Bristol Law School have enjoyed a longstanding presence at the forefront of research in health law, and the undergraduate unit in Medical Law has become one of the most popular options on our degree programme. The School is home to leaders in fields that examine health law topics such as reproduction, mental health, public and global health, medical innovation, public procurement, and professional regulation. Our academics explore these issues from critical perspectives that include ethical, justice-based, historical, regulatory, economic, political and socio-legal approaches. As well as leading in research and education, we have close engagement with bodies responsible for advocacy, regulation, standard-setting, professional training, and providing ethical review and advice.

In reflection of this excellent concentration of expertise and experience, we have founded a new research Centre and are launching an exciting LLM Programme in Health, Law, and Society. Our aim with this innovative degree is to advance a course that looks at, but also reaches far beyond, questions concerning medicine and healthcare, to incorporate knowledge and understanding of how law and governance across all social and political sectors may impact health—for better or for worse. The breadth and depth of study on the course, reflecting directly our diverse range of teaching and research interests, is enhanced by the inclusion throughout the year of guest sessions led by scholars and specialists whose work and practice afford them unique insights and perspectives. Continue reading

Age discrimination is not in fashion: AG Bobek’s Opinion in Abercrombie & Fitch v Bordonaro

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

This blog post provides a case comment of AG Bobek’s Opinion C-143/16 in Abercrombie & Fitch Italia Srl v Antonino Bordonaro delivered 23 March 2017. This comment was first published on EUtopia law on April 7, 2017 and is reproduced here with thanks.

The Facts

The case is concerned with the conformity of Italian law on on-call contracts with the EU principle of non-discrimination on grounds of age. Antonino Bordonaro was employed under an on-call contract (similar to a zero-hour contract) by Abercrombie & Fitch Italia Srl on a permanent basis. Upon his 25th birthday Mr Bordonaro was dismissed due to the fact that he no longer complied with the conditions for the intermittent contract, as laid down by Article 34(2) Legislative Decree No 276/2003 applicable at the time he was hired.

The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers. While on-call contracts under Italian law are usually subject to objective reasons and certain conditions, the provision allowed for such contract to be offered ‘in any event’ to workers under the age of 25 or above the age of 45. At the time of Mr Bordonaro’s dismissal, Article 34(2) had been modified. The older age bracket was lifted from 45 to 55 years of age. Moreover it was specified that an on-call contract can ‘in any event’ be concluded ‘with a person under 24 years of age, on the understanding […] that the contractual service must be performed before the age of 25 is reached’. The modified provision thus allowed automatic termination of permanent on-call contracts with younger workers once they reached the age of 25, in addition to allowing more flexibility regarding younger and older workers’ exposure to on-call contracts.

Unsurprisingly, the Supreme Court of Cassation (Corte Suprema di Cassazione) identified the direct and clear reference to age in Article 34 as potentially problematic and asked the Court of Justice of the European Union (CJEU) to rule on its compatibility with the principle of non-discrimination on grounds of age in Directive 2000/78 and Article 21 of the EU Charter. Continue reading

The dualist system of the English Constitution and the Victorian acquis

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

The Supreme Court in Miller set out the model that ‘the dualist system is a necessary corollary of Parliamentary sovereignty’ (para 57), or in the words of Campbell McLachlan in his admirable Foreign Relations Law, cited by the Supreme Court:

If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged (para 5.20).

As the Court said, this passage ‘neatly summarises’ the position: but, beyond the neatness of summarization, does it correctly capture the constitutional position? Continue reading

Advising in Austerity

By Prof Morag McDermont, Professor of Socio-Legal Studies, and Mr Ben Crawford, Knowledge Exchange Fellow (University of Bristol Law School).

Research led by Prof Morag McDermont of University of Bristol Law School has explored the ways in which advice organisations such as Citizens Advice (CA) have become key actors in legal arenas, particularly for citizens who face the most disadvantage in upholding their rights. Findings from a four year study in partnership with Strathclyde University, highlight the importance of free-to-access advice in enabling people to tackle problems and engage with the legal and regulatory frameworks that govern their lives.

The advice sector, however, is under threat, as a new book Advising in Austerity: Reflections on challenging times for advice agencies (edited by Samuel Kirwan and published by Policy Press ) demonstrates. The book, co-written by the research team and advisers in the field, highlights both the possibilities and the challenges for an advice sector that largely relies on volunteers to provide a vital interface between citizens and the everyday problems of debt, health, employment and much more.  Despite the skills and enthusiasm of the workforce, many services are caught between rising demand and large-scale funding cuts, as traditional sources of revenue from local authorities and legal aid are dramatically reduced. Across the network, reductions in core funding are forcing agencies to reduce or reconfigure services. In particular, the face-to-face, generalist advice model that provides a holistic assessment of client’s problems is under pressure as services are reduced in favour of telephone or online support.

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The Future of Banking Regulation

By Dr Holly Powley, Lecturer in Law, and Prof Keith Stanton, Professor of Law (University of Bristol Law School).*

© Crowdfund Insider.

The regulation of banks is a difficult and high profile task.  The banking industry is complex and plays a fundamental role in the UK’s economy.[1] The financial crisis highlighted the importance of the UK having a regulatory regime that can maintain the health and stability of the banking sector. Banks provide payment and funding services that are central to the successful operation of the modern economy. Regulation therefore needs to ensure that the banking sector is healthy. This blog post will briefly outline the main developments in the UK’s regulatory approach in recent years, and will identify the key areas of concern facing the regulators. Continue reading

Never Mind the Bake Off, here’s the Great Business Bake In?

By David Hunter, Knowledge Exchange Fellow (University of Bristol Law School).

It seems much of the UK will be focused this year on The Great British Bake Off and whether it will be quite the same, or as successful, as it was in its previous incarnation. Away from popular culture, but with an even more pervasive impact on the lives of the nation, it could be a baking in, rather than a bake off, that is significant in 2017. The ingredient is mission, or purpose, being baked into the constitutions and cultures of business. Continue reading

What Boko Haram Taught Me about the Right to Education

By Dr Foluke Adebisi, Teaching Associate (University of Bristol Law School).*

© Tony Karumba / AFP

On 14 April 2017, it will be three years since we heard the news that 230 schoolgirls had been kidnapped by Boko Haram, causing global shock and horror. Since then, some have been released, and some escaped. However, focus on the Chibok schoolgirls, often overshadows the greater tragedy.

Amnesty International suggests that over 2,000 girls and women have been abducted by Boko Haram across the North of Nigeria. Though, Borno state, (with a landmass slightly larger than Croatia) and its people have borne the brunt of Boko Haram. Boko Haram is the sobriquet for a group whose activities are predicted on a violent abhorrence for ‘Western’ education. The Arabic names they call themselves translate into ‘Group of the People of Sunnah for Preaching and Jihad’ and ‘Islamic State West Africa Province.’ Their vicious campaigns have kept an estimated 120,000 students from education of any kind. Andrew Walker’s book ‘Eat the Heart of the Infidel examines how Boko Haram trades on the currency of religion and the politicisation of education to sell violence to its adherents.

Obviously, if any case is to be made against them as regards the abductees, a cause of action would properly lie within national criminal laws or for crimes against humanity. However, due to the ESC nature of the right to education, the 120,000 students who have been excluded from school seem to have very little recourse to contest the violation of their right to education. This is because ESC rights are largely seen as non-justiciable. Also, the demarcation of rights into ESC and civil/political rights does not reflect the historicity and needs of the populace. An interesting approach to this incongruous distinction is taken by the Inter-American Court of Human Rights (IACrtHR). What lessons, I ask, can we learn from the court? Continue reading

The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive

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

In her letter to Donald Tusk the Prime Minister outlined the UK’s starting position in negotiations with the EU. The EU Council of Ministers responded by producing draft negotiating guidelines (to be confirmed by the European Council at the end of April). These guidelines create the framework within which negotiations on withdrawal, and those on the future relationship between the UK and the EU, will occur. Meanwhile, a White Paper on the Great Repeal Bill was presented to Parliament, promising on the one hand to repeal the European Communities Act (ECA) and end the supremacy of EU law in the UK, and on the other to convert the acquis communautaire into UK law, so that ‘EU-derived rights’ (as we will need to get used to calling them) will, as far as possible, be unaffected.

The opening exchanges between the UK and EU have generated a lot of comment. Much of it has focused on the unlikely subject of Gibraltar (Michael Howard’s crass evocation of the Falklands conflict will have done nothing to lower simmering tensions). In relation to the White Paper, most attention has been devoted to the role of Parliament and the devolved assemblies. Rather less attention has been paid to many of the EU law aspects. In this short note, I focus on those. I first consider what new light has been shed on the way in which the Article 50 negotiations will proceed, drawing attention to the host of issues which remain unanswered. I then consider the EU law questions raised by the repeal of the ECA, and the conversion of the acquis into UK law. Michael Ford has already commented on this blog on the applicability of judgments of the European Court of Justice in the post-Brexit era; so there is no more on that subject here.

My overarching concern is that the Government, in particular in the White Paper, has failed to provide a clear sense of the size of the task which lies ahead. It is impossible to know whether this is because the Government itself does not appreciate the magnitude of the challenge, or because it is trying to conceal the difficulties. The Government has, for months, struggled to articulate just what Brexit might mean, and has made a series of disparate promises which a range of different constituencies have, if so minded, been able to rely on, or cling to. It will now start making hard choices. It has not prepared the ground well. Continue reading

The Great Repeal Bill, Workers’ Rights, Henry VIII and the ECJ

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

The key words in the recent White Paper, Legislating for the United Kingdom’s Withdrawal from the European Union, are ‘certainty’ and ‘clarity’ in the interests of a ‘smooth and orderly Brexit’, repeated in the forewords and the text.  To that end, the envisaged Great Repeal Bill (GRB) will initially convert the existing acquis of EU law into domestic law, including directly effective EU laws, such as Article 157 of the TFEU on equal pay. Also in order ‘to maximise certainty’ the meaning of EU-derived law will be determined ‘by reference to’ – note the vague words – the case law of the Court of Justice (ECJ) existing on the date of Brexit. This means, the White Paper happily explains in a user-friendly example in a shaded box, that workers’ rights will ‘continue to be available’ after Brexit, giving ‘certainty to service providers and users, as well as employees and employers’. In this way the GRB will apparently deliver on the Prime Minister’s promise in October last year that workers’ rights ‘will continue to be guaranteed in law’ post-Brexit.

Despite being thin on the detail of the GRB, so far all appears so good. But scratch the surface and things are not so simple underneath. Continue reading

Roundtable on Comparative Law and Interdisciplinarity: Practical Approaches

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

The University of Bristol Law School hosted a roundtable on Practical Approaches towards Comparative Law and Interdisciplinarity on 8 February 2017. It was organised by Dr Giorgia Guerra (University of Padua, Italy) and Dr Jule Mulder (University of Bristol, UK). The roundtable brought together a number of comparative law researchers and provided a small and informal forum to consider interdisciplinary approaches within the context of European comparative private law and constitutional law. It explored how research on modern technologies, social sciences and arts and humanities can enrich comparative law projects within the context of (European) private and constitutional law. The presentations were chaired by Dr Athanasios Psygkas and Prof Paula Giliker. Continue reading