Tag Archives: think piece

The Irish conundrum exposes the harsh realities of Brexit

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

On Monday 4 December 2017, we reached what may prove to be a key staging post on the long, and winding, road which may or may not be leading us towards Brexit. Progress to phase 2 of the withdrawal negotiations, in which the UK and EU will be able to begin to discuss their future relationship, is, as stipulated by the EU and agreed by the UK Government, dependent on ‘sufficient progress’ in relation to the divorce bill, citizens’ rights, and Ireland. The clock towards March 2019 is ticking.

By Monday morning, it appeared that a methodology for calculating the divorce bill had been agreed, and that sufficient guarantees relating to the protection of citizens’ rights had been offered (though it should be noted that various difficult issues, including in relation to the future role of the CJEU, appear to have been left to phase 2). It was also reported that an agreement had been reached that there was ‘to be no divergence from those rules of the internal market and the customs union, which now or in the future, support North South cooperation and the future of the Good Friday Agreement’, a form of words which appears to have been agreed in Brussels, Dublin and London. Reading that, it is not clear whether the leaked agreement contemplated harmonisation between the EU (including Ireland) and Northern Ireland specifically; or between the EU (including Ireland) and the UK as a whole.

Enter the DUP. Arlene Foster made it clear that the DUP would not accept ‘any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom’. Suddenly, the deal was off. Had the UK been agreeing to a lack of divergence between Ireland and the UK as a whole, the DUP’s concern would not have resonated. It is only possible to conclude that, in order to allow the withdrawal negotiations to move forward, the UK Government was contemplating a regime in which divergence within the island of Ireland was to be managed, while the rest of the UK retained the freedom to distance itself more sharply from EU (including Irish) rules. A chorus of voices, from Scotland, Wales and London (and also, I believe, Grimsby), predictably rose to demand an equivalent right to similar special treatment, seeking to protect their own special relationships with the EU. We wait to see how the Government will react.

This short contribution aims to illustrate that there are now hard questions for the Government to confront. If Ireland is in the single market and customs union and Northern Ireland is not, there will need to be a border on the island of Ireland, and, as Anand Menon wrote yesterday, any increase in regulatory divergence in Ireland would impact significantly on people’s lives there (he references health care, agriculture, transport, and energy). If the island of Ireland is to remain in the single market and customs union (or, and I will come back to this shortly, be the subject of an equivalent arrangement ensuring continued regulatory alignment) and the rest of the UK is not, there will need to be a border across the Irish Sea. Continue reading

The Models of Parliamentary Sovereignty

By Mr Marc Johnson, Teaching Associate in Law (University of Bristol Law School).

By Mайкл Гиммельфарб (Mike Gimelfarb) – https://commons.wikimedia.org/w/index.php?curid=5049123

The concept of Parliamentary Sovereignty (also referred to as Parliamentary Supremacy and Legislative Supremacy) deals with several concurrent principles and this makes it a complicated concept to grasp in its entirety. Coupled with this, the media portrayal of this subject through the campaigns on the referendum on exiting the European Union often gave a disingenuous or incomplete view of the Sovereignty of Parliament and as such there are many misconceptions.

This blog piece will address those misconceptions by setting out the models of Parliamentary Sovereignty. These models attempt to explain the way which sovereignty operates, though it may not have escaped the reader’s attention by this blog’s conclusion that each model has positive and negative attributes. This blog offers some opinion on each model of sovereignty to incite further discussion and debate on the topic.  Continue reading

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

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.

 

 

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

Re-Imagining Land Law & the SQE

By Prof Antonia Layard, Professor of Law (University of Bristol Law School).

© Neil Howard

On Tuesday, 26th September, 45 self-confessed land law nerds travelled to the University of Birmingham for a workshop on Reimagining Land Law organised by Emily Caroll. The workshop – the latest in a series run by the Centre for Professional Legal Education (CEPLER) at the University of Birmingham – saw thirteen law teachers, a barrister and a judge, presenting on how to teach, assess and craft a syllabus for land law.

While the workshop’s aims were lofty (how do we teach the subject we love most effectively?) there was much debate about the proposals released in June 2017 by the Solicitors Regulation Authority for the Solicitors Qualifying Exam (SQE). The SRA Board has decided to introduce the SQE as a common assessment for all would-be solicitors from late 2020. The new qualification will consist of four elements so that, by the time candidates seek admission as a solicitor, they must: (1) have passed SQE stages 1 and 2, demonstrating that they have the knowledge and skills set out in the competence statement to the standard prescribed in the Threshold Statement; (2) have been awarded a degree or an equivalent qualification, or have gained equivalent experience; (3) have completed qualifying legal work experience under the supervision of a solicitor or in an entity under SRA regulation for at least two years (or full-time equivalent); and (4) be of a satisfactory character and suitability, to be assessed at point of admission. 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