Category Archives: Bristol Scholars

Transgender Rights in the United Kingdom and Ireland: Reviewing Gender Recognition Rules

By Mr Peter Dunne, Lecturer in Law (University of Bristol Law School).

In the coming months, the United Kingdom (UK) and Irish governments will (separately) review the legal processes by which transgender (trans) persons can have their preferred gender (currently referred to as the ‘acquired gender’ in UK law) formally recognised. Drawing upon my scholarship from recent years, in this post, I consider current movements for reform in the UK and Ireland, with a particular focus on trans minors (who are largely excluded from the UK and Irish frameworks) and non-binary individuals. I conclude this discussion, in the last section, by reviewing the question of ‘self-determination’, and asking if/how the UK can move beyond its current diagnosis-orientated recognition model. Continue reading

Banking misconduct and SMEs: protection for small businesses?

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

By Dean Hochman

The Royal Bank of Scotland (RBS) has been placed under the spotlight with regards to its treatment of small and medium sized enterprises (SMEs) that experienced financial difficulties and were referred to its Global Restructuring Group (GRG). The Financial Conduct Authority (FCA), heavily criticised for its failure to publish the full report of an investigation into the business practices within RBS’s GRG has, in the last fortnight, released an interim summary of the report. The report itself makes for an uncomfortable read, highlighting serious issues with regards to the treatment of SMEs within RBS, amid allegations that it was this treatment that led to the failure of these SMEs, detrimentally affecting the livelihood of those involved with the businesses as a result.

This episode serves to highlight the lack of options available to SME customers who feel that they have been mistreated by their bank. Despite the FCA now indicating that they will take steps to extend the scope of the Financial Ombudsman Service (FOS) to enable SME access to the service, there are still questions about the scope of the regulatory regime and its applicability to SMEs. As will be demonstrated, the structure of the regime itself has, thus far, operated to exclude SMEs from access to redress. This blog will analyse the current position for SMEs and will assess the viability of potential reform to the FOS.  Continue reading

Closing the Gaps: Health and Safety in the Home

By Dave Cowan, Professor of Law and Policy (University of Bristol Law School).

Following a commission from Shelter, the housing charity, Dave Cowan and Edward Burtonshaw-Gunn, University of Bristol Law School, and Helen Carr and Ed Kirton-Darling, University of Kent Law School, conducted research into the law and practice around housing standards.  Their conclusions – which draw on 940 responses to a questionnaire from professionals, landlords and occupiers – make for stark reading about the deficiencies in our current law.  This is the Executive Summary to the report.  The full report can be found at http://www.bristol.ac.uk/law/research/grenfell/.

The law relating to health and safety in people’s homes is piecemeal, out-dated, complex, dependent upon tenure, and patchily enforced. It makes obscure distinctions, which have little relationship with everyday experiences of poor conditions. Tenants wanting to remedy defects face numerous and often insurmountable barriers to justice. The law needs to evolve; no longer should occupiers be treated as posing health and safety risks; instead they should be treated as consumers of housing with enforceable rights to ensure minimum standards are adhered to. The state needs to accept its role as the primary enforcer of those standards.

Not only does the law require reform, there also needs to be a cultural change, so that those responsible for the health and safety of occupiers become pro-active in fulfilling those responsibilities.

We recommend a new Housing (Health and Safety in the Home) Act which is tenure neutral, modern and relevant to contemporary health and safety issues, and which encourages and provides resources for pro-activity by statutory authorities. In particular, the Act should

  • Strengthen duties on local authorities to review housing and enforce housing health and safety standards
  • Introduce a legal duty to review and update all guidance relating to health and safety in the home every three years
  • Provide routes for occupiers to require local authorities to carry out housing health and safety assessments
  • Remove unnecessary legal barriers preventing enforcement action being taken against local authority landlords and remove unnecessary procedural barriers which undermine the current regime
  • Consolidate and up-date existing law
  • Place clear responsibilities on bodies for breaches of fire and building regulations
  • Provide routes for occupiers to hold landlords and managers to account for fire safety provisions
  • Strengthen remedies against retaliatory eviction

Such an Act, either working alongside or incorporating a Homes (Fitness for Human Habitation) Act, would not only improve health and safety outcomes for occupiers, it would signify also that, as a society, we accept responsibility for those standards.

Forum shopping for interim measures in international commercial arbitration

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

Interim measures of protection have an important role to play in international commercial dispute resolution. Because of the inevitable time delay between a dispute coming to a head and the resolution of that dispute by arbitration or another formal dispute-resolution process, a claimant (C) faces a number of risks. For example, the respondent (R) may attempt to make itself ‘award-proof’ by hiding or dissipating the assets against which C, if successful in the arbitration, might reasonably hope to enforce the award; or R might take steps to destroy evidence which is crucial to C’s claims; or R may engage in conduct which, if allowed to continue unchecked, will exacerbate the dispute or even render any arbitration of the parties’ dispute nugatory. Because of such risks, most systems of arbitration law confer on arbitral tribunals the power to order interim measures of protection, whose purpose is, depending on the circumstances, to maintain the status quo, provide a means of preserving assets out of which an eventual award may be satisfied or preserve evidence that may be relevant to the resolution of the dispute (see, eg, art 17.2 of the UNCITRAL Model Law on International Commercial Arbitration).

However, conferring powers on the arbitral tribunal may be inadequate. Unlike national courts, arbitral tribunals do not have coercive powers to back up their orders and have jurisdiction only over the parties to the arbitration. Furthermore, if interim measures are required as a matter of urgency, giving powers to the arbitral tribunal is frequently meaningless; once a dispute has been referred to arbitration, it may well be weeks or months before the arbitrators can be appointed. Accordingly, some mechanism is needed to fill the gap between C’s triggering of the arbitration clause and the constitution of the tribunal. The rules of an increasing number of arbitration institutions fill this gap by making provision for the appointment of an emergency arbitrator (see, eg, art 29 of the ICC Arbitration Rules; art 9B of the LCIA Arbitration Rules). Failing such a procedure, the gap can be filled only by national courts.

But, as with many issues involving the relationship between international commercial arbitration and national legal systems, there is a territorial issue to be addressed: which national court (or courts) should be competent to exercise the power to grant interim measures of protection in support of arbitration and which competent court(s) should actually exercise such powers? This is an issue which had to be addressed by the High Court in the recent case of Company 1 v Company 2 [2017] EWHC 2319 (QB).  Continue reading

Researching European Union Tort Law in the Era of Brexit

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

October 2017 marked the publication of the Edward Elgar Research Handbook on EU Tort Law. This is part of the series of Research Handbooks in European Law published by leading Law publishing house, Edward Elgar, which offer authoritative reference points for academics, students, and practitioners studying or working in EU law, private law and comparative law. The aim is to be comprehensive and informative, but also accessible for those approaching the subject for the first time.

The Research Handbook on EU Tort Law is edited by University of Bristol Professor of Comparative Law, Paula Giliker, but also contains contributions from other Bristol academic staff including Dr Jule Mulder, Dr Albert Sanchez-Graells and Professor Keith Stanton, together with 14 other contributions ranging from the UK and Ireland to France, Germany, the Netherlands and Hungary. This truly international project seeks to examine the extent to which EU-sourced law (directives, judicial decisions, regulations, Treaty provisions) have created new rights in the law of tort on which claimants can rely in either the Court of Justice of the European Union (CJEU) or national courts.

The variety of areas of law in which EU-sourced tort law can be found is striking, as highlighted in Giliker’s introductory chapter, ‘What do we mean by “EU tort law”?’ Contributors discuss actions in the CJEU (Gutman), State liability for breach of EU law (Granger), product liability (White), competition law (Odudu and Sanchez-Graells), data protection law (Stauch), employment law (Mulder), insurance law (Davey), financial services law (Stanton) and the law relating to unfair commercial practices (Riefa and Saintier). Further contributions examine what we mean by compensatory remedies in EU law (Leczykiewicz), whether we can identify a culture of EU tort law (Niglia and Knetsch) and the possibility of harmonising European tort law more generally (Martin-Casals, Blackie and Faure). Finally, Giliker examines the future of EU tort law, both as a substantive area of law and as a concept in need of clarification and further academic debate. Continue reading

Automated and Electric Vehicles Bill – An Infographic

By Prof Ken Oliphant, Professor of Tort Law and Deputy Head of School (University of Bristol Law School).

Together with Prof Keith Stanton, I recently led a discussion of the Automated and Electric Vehicles Bill (for House of Commons Library background and analysis, see here). This is the infographic I used.

 

 

North-South Free Trade Agreements – Trade, Policy and Europe

By Dr Clair Gammage, Lecturer in Law, and Prof Tonia Novitz, Professor of Labour Law (University of Bristol Law School).

On 4 October 2017, we held an event at the University of Bristol Law School, funded by PolicyBristol, considering the dynamics of negotiation, implementation, and enforcement of North-South trade agreements.

The first panel (Clair Gammage, Maria Garcia and Tonia Novitz, chaired by Phil Syrpis) examined the external policies of the European Union (EU) particularly in the context of regionalism and free trade agreements (FTAs). The significance of power disparities between trading partners in the negotiation process was considered and it was argued that true ‘partnerships’ in trade will be established through an inclusive and participative approach, as advocated by Clair Gammage in her book on North-South Regional Trade Agreements as Legal Regimes (Edward Elgar, 2017).

The second panel (Emily Jones, Sophie Hardefeldt and Gabriel Siles-Brügge, chaired by Tonia Novitz) examined how the UK could – in the event of Brexit – depart from or improve on the practices of the EU. Issues regarding human rights protections, development and transparency were considered, echoing many of the themes emerging from the discussion of the first panel. Continue reading

On Harvey Weinstein the Sexual Predator, or Business as Usual

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*

By David Shankbone – CC BY 3.0

The last few weeks have seen the revelation that Harvey Weinstein, renowned Hollywood producer of such award-winning films as Gangs of New York, Pulp Fiction, and Shakespeare in Love, moonlighted as a prolific sexual predator. A significant number of women have now made public complaints of sexual harassment and assault against Weinstein, including well-known Hollywood stars Gwyneth Paltrow, Rose McGowan, and Angelina Jolie. Weinstein is also reportedly facing allegations of rape. His wife, Georgina Chapman, announced she was leaving him, the company he co-founded fired him, and police on both sides of the Atlantic have opened investigations into him.

The media discourse that greeted the revelations has been characterised by astonishment at the scale of the alleged offending, and the failure of those making allegations to have come forward sooner. In fact, there is often evidence of a long line of complaints against men who are finally revealed in mainstream media to be chronic sexual predators. In Weinstein’s case there is evidence of three decades of prior complaints by women, at least two of which were reported to police. The public disclosure of these allegations was repeatedly thwarted by the use of non-disclosure agreements, the alleged ‘killing’ of news stories on the topic, and the habitual capacity of those who knew about it to ignore it. In the case of Jimmy Savile in the UK, believed to have preyed unimpeded for 60 years on around 500 vulnerable victims as young as two years old, a 2013 HMIC report found at least seven complaints against Savile in police records since 1964.  Continue reading

A call to stop Brexit

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

Increasing frustration with the Brexit process has prompted me to write this. I have tried to keep it short. My main argument is that the perceived obligation to implement ‘the will of the people’, felt by a large majority of politicians on both sides of the House, is creating a political, legal, social and economic crisis in the UK.

The time has come to demand that Brexit be stopped. A transition period, in which EU law rights and obligations are maintained for a time, now seems inevitable. Opinion in the country seems, slowly, to be beginning to shift. The sunlit uplands, as we are reminded on all almost daily basis, are no more than an illusion. Policy makers are seeking to find second-best solutions, and engaging in attempts to salvage what they can from existing arrangements (which work, at least tolerably, well). Unless advocates of the Brexit cause can point to political, social and economic benefits associated with Brexit, and unless they can demonstrate, in concrete terms, how these benefits are to be realised – and thus far, they have singularly failed to do so – we should not be prepared to allow them to indulge in their reckless fantasy. Continue reading

Why do proposed national security measures get dropped? The four months after the Paris attacks and the French national debate on cancellation of citizenship

By Miss Rachel Pougnet, PhD Candidate (University of Bristol Law School).

Bourgoin jallieu le 29/12/2015: Photo illustration du code Civil/Credit:ALLILI MOURAD/SIPA/1512301245

On 16 November 2016, three days after the terror attacks in Paris, the then-French President François Holland gathered both houses of Parliament (the National Assembly and the Senate) in Versailles. He started his speech with a grave tone, by noting that “France was at war”, and that the country needed to be “ruthless” in “such times of exceptional gravity”. He called for “national unity” and proposed a revision of the Constitution.

His proposal was to enshrine in the Constitution the procedure of the state of emergency (article 1) and the cancellation of citizenship for dual nationality holders (article 2). As Holland then put it

We must be able to strip the nationality of an individual who has been condemned for acts contrary to the fundamental interests of the Nation or acts of terrorism, even if the individual was born French, and I mean it “even if the individual was born French” so long as the person has another nationality (Holland’s speech, 5).

The proposal was eventually dropped on March 2016, following the failure of both houses to agree on a similar text on article 2, cancellation of citizenship, as required by article 89 of the Constitution. This article spread intense debate across French society and enjoyed widespread press coverage from French newspapers of all kinds. More than ten public opinion polls were issued on the subject and it prompted the resignation of Christiane Taubira, the Secretary of State for Justice. All this for a relatively short debate: 136 days in total.

It is unclear whether this failure can be attributed to the specific political context at the time (a right-wing Senate and left-wing National Assembly, the low popularity of President Holland and the uncertainty of the regional elections (which were to take place in June 2016), to the rigidity of the French Constitution (article 89 requires a majority of 3/5 of both houses gathered together in Congress), or to the importance of citizenship-nationality in the French national narrative. Perhaps the truth lies somewhere in between these lines. But in the broader context of an increase in recourse by states to the deprivation of nationality as a counter-terror measure (see for example the Netherlands or the UK), a closer analysis of the debate around the contested measure is warranted. Continue reading