Category Archives: Bristol Scholars

Oration for Lady Hale on the occasion of her receipt of an Honorary Fellowship at the University of Bristol in July 2017

Written and orated by Prof Joanne Conaghan, Professor of Law and Head of School (University of Bristol Law School).

In July 2017, the University of Bristol awarded an Honorary Fellowhip to its former Chancellor the Rt. Hon. the Baroness Hale of Richmond, DBE. Professor Joanne Conaghan, Head of the University of Bristol Law School, had the honour of writing the Oration for Lady Hale.

In her Oration, Professor Conaghan stresses the many strengths and achievements of Lady Hale in a career dedicated to the law as it applies to those most vulnerable, such as in the areas of mental health and family law, and to combat inequality, in particular on the basis of gender. Lady Hale’s achievements are indeed particularly remarkable due to the unequal society she lived in through her early years; a society which she is shaping and pushing for transformation, very soon from the seat of the President of the Supreme Court, to which she has been appointed.

The full text of the oration is now reproduced here as a token of the values that the University of Bristol Law School, as a community, strives to foster. Continue reading

Setting aside of arbitral awards under the Arbitration Act 1996 and the UNCITRAL Model Law on International Commercial Arbitration: failure to deal with all the issues

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

© liza31337 (Flickr)

Back in the 1980s, the Departmental Advisory Committee on Arbitration Law recommended against England adopting the UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’ or ‘ML’). Nevertheless, during the course of the reform process that led to the Arbitration Act 1996, the Model Law played a significant role and its impact can clearly be seen in terms of the 1996 Act’s structure, style and content. Nevertheless, English law retains a number of distinctive features and, even in those areas in which the objectives of the 1996 Act broadly mirror those of the Model Law, there are places where the two legislative schemes diverge.

One significant area of difference is the setting aside of awards. On this issue, the Model Law is, at first blush, simplicity itself. The six grounds for setting aside under art 34 ML replicate bases set out in article V of the New York Convention of 1958 (‘NYC’) on which an award rendered in country A may be refused recognition/enforcement in country B. (For obvious reasons, art 34 ML contains no provision corresponding to art V.1.e NYC.)

The Arbitration Act 1996 approaches setting aside in a very different way. First, in keeping with the traditions of English arbitration law, the 1996 Act provides that, albeit in carefully circumscribed and narrow circumstances, an award may be set aside on the basis that, as regards the merits of the dispute, the arbitral tribunal made an error of English law (s 69). The Model Law, by contrast, follows the modern international practice of making no provision for setting aside because the tribunal did not reach the correct result, either on the facts or the law. Secondly, the 1996 Act separates ‘jurisdictional’ defects (s 67) from ‘procedural’ and other defects (s 68). Thirdly, section 68 lists a total of twelve ‘procedural’ grounds on which an award may be set aside. This contrasts with the ML’s two ‘procedural’ grounds (art 34.2.a.ii and iv). Fourthly, whereas article 34 ML provides simply that an award ‘may’ be set aside if one of the grounds is established (giving the supervisory court a degree of flexibility), an award cannot be set aside under section 68(2) unless the procedural defect relied on by the applicant has caused or will cause substantial injustice to the applicant.

The combined effect of these differences is to produce setting-aside regimes which, although largely seeking to implement the same policies, work in rather different ways. This point can be illustrated by the quite common scenario in which, after an award has been rendered, one of the arbitrants (typically, a respondent whose defence was wholly or partly unsuccessful) challenges the award on the basis that it fails to address an issue which was raised in the arbitration. Continue reading

‘Paid work’ or underpaid labour? The labour exploitation of detainees within immigration detention

By Dr Katie Bales, Lecturer in Law (University of Bristol Law School) and Dr Lucy Mayblin, Assistant Professor in Sociology (Department of Sociology, Warwick University).*

© Chloe Juyon

In June 2017, ten immigration detainees launched a judicial review action against the Home Office challenging the payment of ‘slave’ like wages for labour undertaken within immigration detention.

This practice, termed ‘paid work’ by the Government, is remunerated at a rate of £1.00 or £1.25 per hour and includes work as cleaners, cooks, hairdressers, gym orderlies and gardeners – roles that are essential to the running of the immigration removal centres. In 2014 this practice resulted in 44,832 hours’ worth of work.

In this blog, we argue that this work is exploitative and ‘unfree’. In recognition that many detainees wish to work however, we do not call for an end to this practice; rather we highlight the structural conditions that render detainees more likely to accept exploitative conditions of work (including but not restricted to low pay), and argue that, at the very least, detainees should be provided with the national minimum wage. Continue reading

Half-hearted, half-baked and stuck in the rut of business as usual: The Government’s Response to the Green Paper Consultation on Corporate Governance Reform

By Prof Charlotte Villiers, Professor of Company Law and Corporate Governance (University of Bristol Law School).

The UK currently faces huge economic and political challenges. The Brexit negotiations are clearly of central importance and the outcome will strongly influence our country’s future as a trading nation. Our economic prospects will also be dependent on the strength of our corporate governance system. During the past couple of years, a number of corporate scandals and failures such as the demise of BHS with its huge pension losses and the worker exploitation at Sports Direct as well as continued publicity of ‘fat cat’ executive pay have threatened the reputation of the UKs corporate governance framework. In light of these negative reports a corporate governance inquiry was launched by the House of Commons Committee of the Department for Business, Energy and Industrial Strategy and the Government published a Green Paper on Corporate Governance Reform in November 2016. Despite a busy schedule with Brexit and a slimmed down Queen’s Speech, the Government continues to pursue its plans for corporate governance reform with its publication of a Government Response to the Green Paper in August 2017.

When Theresa May made her speech launching her campaign to become Prime Minister in July 2016 she announced her intention to ‘have not just consumers represented on company boards, but employees as well.’ She repeated the promise as Prime Minister at the Conservative Party Conference in the same year. In that same campaign speech in July Theresa May also noted that during the previous eighteen years executive pay had more than trebled and there was ‘an irrational, unhealthy and growing gap between what these companies pay their workers and what they pay their bosses’. She said that she wanted ‘to make shareholder votes on corporate pay not just advisory but binding’ and ‘to see more transparency, including the full disclosure of bonus targets and the publication of “pay multiple” data: that is, the ratio between the CEO’s pay and the average company worker’s pay’ and ‘to simplify the way bonuses are paid so that the bosses’ incentives are better aligned with the long-term interests of the company and its shareholders.’

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Cowboys of the wild west? — Some context on the influence of fee-charging McKenzie Friends in family law

By Dr Leanne Smith, Senior Lecturer in Law (School of Law and Politics, Cardiff University) and Dr Emma Hitchings, Senior Lecturer in Law (University of Bristol Law School).*

© Christopher Dombres

In mid June 2017, the report of our Bar Council commissioned research on fee-charging McKenzie Friends in private family law cases was published (the full report can be accessed here and an executive summary here).

One of the report’s key messages is that we found little evidence of McKenzie Friends seeking to exercise rights of audience on a regular basis and plenty of evidence that the bulk of the work done by McKenzie Friends is done outside of court. The work McKenzie Friends do in court, we said, is ‘the tip of the iceberg’. This was the finding that the Pink Tape blog outlining Lucy Reed’s perspective on the research focused on, indicating that it was not at all surprising. We hope we can be forgiven here for indulging in a few words in defence of the utility of the research.

We readily accept that many in the legal professions have been aware for some time that paid McKenzie Friends operate predominantly outside court, but research has an important role to play in interrogating anecdotal evidence and providing more systematically derived evidence in order to validate or debunk it.  This is no less true because perceived experience is validated by a set of results. In this instance, our hope is that the findings of the research will function as a turning point for discussion on the subject of fee-charging McKenzie Friends in a way that the observations of some professionals who encounter them has not. In addition there are, of course, some more granular observations that we consider important buried in our report, though we will resist spoilers for those who haven’t yet finished reading it…

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Who Do You Think You Are, Fearne Cotton and her conscientious objector great-grandfather

By Prof Lois Bibbings, Professor of Law, Gender and History (University of Bristol Law School).

One hot sunny day in the middle of June I set out on the train, bacon butty and extra strong coffee in hand, for an afternoon of secret filming at a location I couldn’t talk about.

Weeks earlier I had been contacted by a production company, researching for possible programme content. It soon became clear that others working in the relevant area had had similar approaches. The company, Wall To Wall, the programme, Who Do You Think You Are.

Each episode of WDYTYA takes a celebrity on a journey, investigating their family history. It seeks to tell historical stories in an engaging, human way, with the featured celebrity discovering a gradually unfolding narrative about some of their ancestors. There have been a fair few surprises and twists in the tales told over the 13 series to date, with Danny Dyer’s shock at uncovering a royal lineage perhaps one of the most memorable for me. At the point I was contacted they were working on series 14 and the celebrity at the centre of their investigations remained unknown. Initially I was asked about my research on WW1 conscientious objectors. Then I was given was a name, Evan Meredith, and a little information about the part of his story Wall to Wall were interested in.

Having conducted some initial research, looked at some documents and been sounded/sussed out in person by the director and assistant producer, I was signed up to appear. I was to cover some aspect of one of the stories investigated. It was at this point that everything became pretty clandestine – I signed a scary non-disclosure agreement and, as if by magic, was sent the name of the celebrity.

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Challenge to ‘Prevent duty’ in universities rejected in judicial review proceedings

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

On 3rd August 2017 it was announced that, a week before, the High Court had rejected a claim, brought in judicial review proceedings by Dr Salman Butt, that the inclusion of his name in an official press release about tackling extremism in universities and colleges was unlawful and in breach of his human rights (Salman Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin)). Relying on information provided by the Home Office Extremism Analysis Unit (EAU), which had opposed the publication of any names, the press release referred to 70 events on university premises in 2014 featuring ‘hate speakers’. However, as the result of an ‘oversight’, six people including Dr Butt, were also identified as ‘expressing views contrary to British values’ on campus. The judgment in this case is the first significant judicial contribution to the debate about the ‘Prevent duty’ created by s.26 of the Counter-Terrorism and Security Act 2015 (CTSA) which requires schools, universities, the NHS and other institutions to ‘have due regard to the need to prevent people from being drawn into terrorism’. Continue reading

A new duty of care for banks and other financial institutions? The Financial Services Consumer Panel’s proposal

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

© Chris Brown

The past few years have witnessed a debate in the field of banking and broader financial services law: should the law relating to the duty of care owed by financial services firms to their customers be reformed? The Financial Services Consumer Panel (FSCP) argues that the answer to this question is yes; the current law does not provide consumers with adequate levels of protection, and thus the law needs to be. The current regulatory regime requires firms to treat their customers fairly, however the FSCP believes that banks and other financial services firms should be held to a higher standard and for this reason have advanced reform proposals to address this issue.

The purpose of this blog post is to analyse the content of the reform proposals and assess the viability of any reform, in light of the existing legal regime. It will be argued that, as indicated by the Parliamentary Commission on Banking Standards (PCBS) and the Financial Conduct Authority (FCA), the proposal advanced by the FSCP is unlikely to improve the law in this area. Continue reading

European Union (Withdrawal) Bill: Paving the way towards a very uncertain future

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

The stated aim of the, then Great, Repeal Bill was to provide clarity and certainty for citizens and businesses, and to ensure a functioning statute book on exit from the EU. The key statement of principle in the White Paper was as follows: ‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before’ (for analysis, see here).

However, the continuity provided by what is now the European Union (Withdrawal) Bill, published last week, must be seen in the context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame (see here). After all, the Government’s aim is that, as a result of Brexit, the UK will be able to decide which parts of EU-derived law to keep, and which to amend or repeal. A number of Brexit Bills, which will change the law in relation to, among others, immigration, trade, customs, agriculture and fisheries, were promised in the Queen’s speech. The clarity and certainty promised in the White Paper, which at first glance appear to provide comfort to citizens and businesses concerned over the effects of Brexit, are more elusive than ever. Continue reading

New Challenges for European Comparative Law

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

Dr Jule Mulder has published an article on European comparative law methodology entitled New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multilayered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization.[1] This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. Continue reading