Tag Archives: think piece

Dicta… Dictators and Law

By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).

One key piece of knowledge all law students are expected to grasp early on in their legal career is the difference between what a judge says – dicta or obiter dicta and what a case means – the ratio or ratio decidendi. Even when they know the difference, students and practising barristers often prefer to reach for a quotation from a case. It can be comforting to use a well-rounded phrase from Smith J or Jones LJ and it may at first glance suggest wisdom when it really is just about memory. However, reliance on dicta is a really bad habit, does not make better lawyers and can seriously undermine what the law means.

In the hands of some judges dicta are powerful ways of communicating ideas – judicial soundbites – which make the case and the judge memorable. Lord Denning was a past master at this, making it easy to remember the facts of cases, but not always the law. Indeed Lord Denning’s skill with language enabled him to make or even make up law. Of course he was largely dealing with Common Law, developing contract and tort law rather than interpreting statute. Continue reading

Time to be realistic about human rights?

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

© Deridder45

The case of Phil Shiner, struck off by the solicitors’ disciplinary panel for the attempted procurement by financial inducements of spurious abuse claims against the British army in Iraq, sadly illustrates that the ‘post-truth’ era has penetrated even the noble cause of human rights (‘Review of Iraq war cases after lawyer struck off’, Guardian, 3 February 2017).

While this episode is, of course, a grotesque aberration, myth, misinformation, misrepresentation, and intellectual tunnel vision, coupled with excessive and unsustainable demands, are, nevertheless, increasingly prevalent in the contemporary movement, and not confined to its opponents as many might suppose. This not only devalues the currency, it also stokes the scepticism towards human rights currently sweeping western states and societies. Continue reading

Article 50, the Supreme Court judgment in Miller ~ and why the question of revocability matters more than ever

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

With the Supreme Court having ruled on 24 January 2017 that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU has revolved around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the Government’s negotiation position. This post puts forward the hypothesis that such debates may be irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable (Prof Syrpis).

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the Government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50.  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s intention to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration. Continue reading

Protecting civil society against shrinking spaces

By Prof Sir Malcolm Evans, Professor of Public International Law (University of Bristol Law School) and Chair, United Nations Subcommittee for Prevention of Torture.

On Thursday 26th January a debate took place in Parliament* on the ‘shrinking space for civil society’ in international human rights protection. I was recently at a meeting where it was pointed out that this description of the problem – which is much discussed in international circles at the moment – made it sound vaguely as if it was something to do with washing things at the wrong temperature, and meant very little to most people. To the extent that effective human rights protection is based on openness and transparency, which might be summed up in the idea of ‘washing dirty linen in public’, the idea of human rights being ‘shrunk in the wash’ at the moment is not altogether a bad one – but this hardly helps convey the significance of what is taking place and why it matters enough to warrant a debate in Parliament. The reality is that there is something extremely worrying going on in many parts of the world – which is that those who stand up for those in need are themselves increasingly subjected to various forms of attack, including physical attack, for doing so. Continue reading

Transparency in public procurement is necessary, but not for all to see

By Dr Vitali Gretschko, Head of the Market Design Research Group (ZEW Mannheim) and
Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).*

The airport Berlin-Brandenburg, Stuttgart 21, and the Elbphilharmonie have one thing in common. Irregularities in the procurement process and delays in execution led to immense cost explosions to be covered by taxpayers. Thus, given the risks of corruption, favouritism and misuse of public funds, the award and management of public contracts requires a high level of scrutiny to avoid mismanagement and waste.

Moreover, even when things go well, improvements in public procurement law can have significant effects. Today, over 250 000 public authorities in the EU spend around 14 per cent of the GDP on the purchase of services, works, and supplies. Even small relative efficiency gains through carefully crafted rules can therefore result in savings in the billions. Therefore, the design of procurement rules need to reach a balance between safeguarding economic efficiency through competition and ensuring the proper level of transparency and accountability. Continue reading

December’s European Council meeting: No country for Social Europe

By Mr Konstantinos Alexandris Polomarkakis, PhD Candidate and Teaching Assistant (University of Bristol Law School).

customtileThe European Council is among, if not the most important of, the pivotal institutions of the EU, mapping out its direction for the near term. Its meetings act as the wayfinding system for the EU policies that are to be drafted and discussed in the coming months, affecting crucial issues that have been considered by the Member States’ leaders as pertaining to the Union’s top priorities. It sets the tone that the Member States as well as the rest of the EU institutions should follow.

In that regard, the latest European Council meeting in Brussels on December 15 touched upon the most pressing issues Europe is faced with at the moment. Managing migration flows and the Union’s asylum policy, ensuring an effective application of the EU-Turkey statement, deepening the common European security and defence policy while at the same time complementing the pertinent NATO mechanisms, the negotiation process on a settlement for Cyprus, as well as the future of the EU-Ukraine Association Agreement in the aftermath of the Dutch referendum in April, and the situation in Syria, all were at the spotlight of the summit. Even Brexit was dealt with by the means of a declaration following an informal meeting of the EU27.

On top of these issues, a whole section of the meeting’s conclusions was dedicated to what was designated as ‘economic and social development, youth’. This is, at first glance, a welcome addition, considering the uncomfortable position the EU is currently sitting at, with high levels of discontent, and, consequently detachment from the European project by its citizens, manifested in the recent public opinion polls and the rise of –primarily far-right- populism in its territory.  Social Europe could be a vehicle, which if employed effectively, has the potential to revive the long-lost interest towards and engagement with the EU. Continue reading

What is the point of Business?

By David Hunter, Consultant, Charity & Social Enterprise Department (Bates Wells Braithwaite LLP) and Knowledge Exchange Fellow (University of Bristol Law School)[1] and Ms Nina Boeger, Senior Lecturer in Law and Director of the Centre for Law and Enterprise (University of Bristol Law School).

img-20161127-wa0001Businesses are, in some respects, like cement. They are an integral part of the society we inhabit, and yet for the most part invisible to us as tangible entities. We give them little thought, but our lives would be very different were we to wake up to a world without either.

In April 2016, the UK government did invite us to think about the nature of business though as part of what it called a Mission-led Business Review. It set up an Advisory Panel and ran a public consultation and, seven months on, the Panel has reported back to the government with its recommendations[2]. The timing is interesting, with the review commencing when David Cameron was still Prime Minister, before the UK’s Referendum on EU membership and the US election, but the publication of the Panel’s findings coming when those events have demonstrated a clear sense of public discontent with the status quo.

What was the Review about, what is a ‘mission-led business’ and what are the likely responses to and impact of the Panel’s findings? Continue reading

Culture in the banking regulators: the need for challenge

By Dr Holly Powley, Lecturer in Law (University of Bristol Law School).

city-of-london-1In the aftermath of the financial crisis, a debate has been raging about the culture of financial services institutions – both in terms of how individuals working with financial institutions conduct themselves, but also on attitudes towards risk-taking within these institutions. Given that banks are now considered to provide consumers with a service that is essential to the operation of the modern economy, this is an important debate.

However, those tasked with regulating and supervising the banking sector haven’t escaped this scrutiny either. If the UK is to avoid a future financial crisis of the magnitude experienced between 2007 and 2009, there also needs to be a culture change within the institutions tasked with overseeing the UK’s financial services sector. The regulatory bodies need to be capable of challenging themselves, their policies, and the institutions they are tasked with supervising: they need to question the status quo. This means a move away from the ‘light touch’ approach that encompassed the Financial Services Authority’s (FSA) regulatory philosophy, avoiding ‘box ticking’ and introducing the exercise of judgement when making decisions about the supervision and regulation of the banking sector. Before the financial crisis, regulators didn’t challenge the conventional wisdom. It was believed that markets were stable, and that institutions were unlikely to fail. There was very little focus on financial stability issues, a point reflected by the fact that (as highlighted in the report on HBOS’s failure) only one of 61 issues discussed by the FSA’s board in the build up to the crisis related to financial stability. The crisis itself highlighted the flaws in that approach. To avoid this in the future, regulators have to ask difficult questions of themselves, and of the regulated sector. Continue reading

Brexit and Parliament: Doubting John Finnis’s Dualism

By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).

© Nick Weall

© Nick Weall

The news that the appeal will be heard by a full panel of 11 Justices of the Supreme Court confirms that the High Court’s ‘Brexit Judgment’ is of the highest constitutional significance. So the attention devoted to the judgment by eminent constitutional lawyers is hardly surprising. One powerful argument against the judgment, which is attracting a growing number of supporters, is made by Professor John Finnis in papers for the Judicial Power Project.

Finnis argues that the court mistakenly assumes that EU rights are ‘statutory rights enacted by Parliament’. On his view, the European Communities Act 1972 simply provides a means for making EU law rights enforceable in English law; they are not ‘statutory rights’ as such. Finnis draws an analogy with double-tax treaties. These serve to relieve individuals with connections to more than one country from being taxed twice on the same income. In order for this to apply, both state parties must maintain the international agreement. If one of them gives notice to rescind, as they are typically entitled to do under the treaty, the immunity lapses. In dualist systems such as the UK, there is thus an asymmetry between the creation and removal of rights. There are two conditions precedent for the enjoyment of any new right: an international treaty conferring that right, and an Act of Parliament giving effect to that treaty in domestic law. Both elements are needed to create the right, but if either condition precedent fails, so does the right. The mere fact that Parliament has to provide the domestic conduit does not stop the Government from turning off the international tap.

I am not convinced that this argument works in the context of the UK-EU relationship. Continue reading

Brexit, Environment and Devolution: the Welsh case

By Dr Margherita Pieraccini, Senior Lecturer in Law (University of Bristol Law School).

© BBC

© BBC

These were notes prepared for a seminar held by the External Affairs and Additional Legislation Committee of the National Assembly for Wales on the 31st of October 2016 to discuss the implications of Brexit for Wales in the field of environment and marine policy in particular. The notes discuss a number of constitutional and sector specific issues, key challenges and present some suggestions.    Continue reading