Tag Archives: case comment

Abortion rights in Northern Ireland

A comment on R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41.

By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).

The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties.  On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.

The case

In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].

A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2. Continue reading

‘Bare’ arbitration clauses under the UNCITRAL Model Law on International Commercial Arbitration

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

As every student of international commercial arbitration ought to know, an arbitration agreement should not only impose on the parties a binding obligation to refer a certain dispute (or certain types of dispute) to arbitration but also, as a minimum, indicate the place (or seat) of arbitration and provide a mechanism for the appointment of the arbitral tribunal. Unfortunately, the drafting of arbitration clauses in commercial contracts often leaves much to be desired; in a case involving a badly-drafted arbitration clause, disputing parties who are unable to resolve their disputes by negotiation may find themselves getting bogged down in one or more of the procedural problems to which pathological arbitration clauses frequently give rise.

Particular difficulties may be posed by so-called ‘bare’ clauses – that is, clauses which merely provide for submission of disputes to arbitration without specifying the place of the arbitration, the number of arbitrators or the method for establishing the arbitral tribunal. If, once a dispute has arisen, the parties are unable to agree on the appointment of an arbitral tribunal, the claimant may encounter practical difficulties in activating the arbitration machinery and getting the arbitral tribunal established. Continue reading

Penalty clauses and the courts – Does the UK approach differ from the rest of Europe?

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

Contractual penalty clauses raise questions going to the heart of contract law: should the courts enforce clauses which make payment of a large sum of money due on breach of contract? The argument is that such clauses act as a penalty for breach and are used by economically stronger parties to “discourage” the other party from breaching the contract. The sums in question are often extortionate and bear no resemblance to the true losses of the parties. Should the courts intervene – and diminish the parties’ freedom to contract as they will – or should they simply enforce the contract?

This question was addressed by the UK Supreme Court in Cavendish Square Holdings BV v Makdessi; ParkingEye Ltd v Beavis ([2015] UKSC 67) and raises profound questions of the role of judges in policing contractual agreements and the “morality” of contract law. Continue reading

Hostages and Human Rights at the European Court of Human Rights: The Tagayeva and Others v Russia Case

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

On Thursday, 13 April 2017, the European Court of Human Rights released one of the most anticipated decisions in the Court’s history – the Tagayeva and Others v Russia case. The judgment concerned the siege of the Beslan School, North Ossetia by Chechen fighters in September 2004 and the ensuing rescue operation by the Russian forces. During these tragic incidents, 330 people lost their lives, including more than a hundred children. Almost 180 of the victims were burnt to an extent that the identification of the remains and establishment of the cause of death were impossible.

The purpose of this blog is to summarise the key findings of the Court’s 239-page decision and provide a brief overview of the human rights obligations of states in the context of hostage-taking as discussed by the Court. Although this hostage-taking incident was of an unprecedented scale, terrorist groups have never stopped taking hostages within or outside Europe, and as a result European states have been involved in a number of rescue operations. Therefore, this judgment can help clarify the obligations that states have before, during and after a hostage-taking incident occurs. 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

Rape Investigations and police accountability: the case of the Black Cab Rapist

By Prof Joanne Conaghan, Professor of Law (University of Bristol Law School).

The case of the Black Cab rapist, John Worboys, may well qualify as one of the most egregious failures of modern policing of our times. Alleged to have assaulted over 100 women using his taxi as a lure and a crime site, Worboys terrorised women in the London Metropolitan area for the best part of a decade before eventually being apprehended and imprisoned in 2009 for 19 separate sexual assaults.  This week the Worboys case is once again in the public eye as a claim by two of his victims, DSD and NBV, that the Metropolitan Police violated their human rights by failing adequately to investigate their claims comes before the Supreme Court.

One has to wonder how such serious criminal activity in a public setting could go unchecked for so long. The simple answer is that the Metropolitan Police failed Worboys’ victims utterly and unequivocally, their investigation marred by multiple systemic and operational failings, as elaborated in painstaking detail by Mr Justice Green in a High Court judgment in 2014.  Continue reading

The law governing an arbitration clause

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

A leading commentator has observed that ‘[t]he choice of the law applicable to an international commercial arbitration agreement is a complex subject’ (Born, International Commercial Arbitration (2nd edn, 2014) p 472). This complexity is reflected by the case law illustrating that the courts of different countries adopt different approaches to certain common scenarios. One area of divergence is the case where parties to a contract containing an arbitration clause choose state A as the seat of arbitration, but the law of state B as the law governing the matrix contract: which law governs the arbitration clause – the law of the seat or the law of the country chosen to govern the substantive contract?

Some legal systems, influenced in part by the doctrine separability (according to which a contractual arbitration clause is, conceptually, treated as a contract separate and independent from the matrix contract) and article V.1.a of the New York Convention of 1958, take the view that, in the absence of an express choice by the parties of the law applicable to the arbitration clause, the law of the seat should govern questions of material validity. English law, however, has never taken this view – although, arguably, the Court of Appeal came close to doing so in C v D [2007] EWCA Civ 1282. Continue reading

Law and Politics in the Supreme Court

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

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. Continue reading

When Christmas drinks go wrong – Vicarious liability and the ‘course of employment’ test in the High Court

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

The office Christmas party is something many of us will have enjoyed recently.  In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14).  Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.

In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director. Continue reading

The Ugandan Bridge Schools & Education as Freedom

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

© CCTV Africa

© CCTV Africa

On the 4th of November 2016, in Bridge International Academies Ltd v. Attorney General Ugandaa Uganda High Court judge ordered the closure of 63 Bridge International Schools. The judge cited the use of unqualified teachers, unsanitary learning conditions as well as the fact that the schools were not properly licensed as reasons for ordering the closures. The court also considered the poor quality of education provided in these schools.

Bridge schools are backed by Bill Gates and Mark Zuckerberg. The schools claim to have 12,000 students in Uganda and 100,000 students across Africa, mainly. According to their teaching model statement, teachers read scripted lessons from a tablet. The content of learning is standardised and not adapted to individual needs. It is suggested that this is an effective low-cost way of providing ‘quality’ education. Nevertheless, Bridge Schools in Africa have been the subject of much controversy. The UN has suggested that funding such schools could contribute to violations of international law. Those who suffer the most from this are poor Ugandans, they are caught at the intersection of a convergence of disadvantage: government education is unreliable, often unsanitary, and almost always underfunded. Private education is unaffordable and inaccessible for most Ugandans. Yet Bridge education is barely education at all. Continue reading