The case for revoking the A50 notification

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

This blog is written after the European Council conclusions were agreed yesterday, on 21 March, on the assumption, which is widely shared, that the EU’s extension plan is accepted by the UK.  It is in two parts. In the first, I explain the nature of the choices ahead. In the second, I seek to make a positive case for revoking the A50 notification.

The choices ahead

As has been the case for a while now, there are four possible outcomes to the Brexit process.

  1. The UK leaves the EU under the Withdrawal Agreement
  2. The UK leaves the EU with no deal
  3. The UK leaves the EU under a different deal
  4. The UK does not leave the EU

The first option is Theresa May’s preferred outcome: that we leave the EU under the terms set by the Withdrawal Agreement. Under the terms of the conclusions, the European Council agreed to an extension until 22 May ‘provided the withdrawal agreement is approved by the House of Commons next week’. The European Council reiterates that there can be no reopening of the Withdrawal Agreement, adding that ‘any unilateral comment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement’. This looks very much like the ‘technical extension’ Theresa May asked for in her letter of 20 March, with the 22 May date chosen so that the UK leaves the EU before the elections to the European Parliament occur, and with a clear indication that no sugar-coating of the backstop will be tolerated. (more…)

Why a no-deal Brexit on 29 March is unconstitutional, not the “legal default”

By Rose Slowe LLM, Honorary Research Fellow, University of Bristol Law School. Author on EU Law and Barrister at Foundry Chambers.

Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.

Article 50(1) of the Treaty on European Union (‘TEU’) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court, the highest judicial authority responsible for interpreting our unwritten constitution, confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The Miller litigation, while lacking in a critical respect, as discussed elsewhere, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate. (more…)

Land, law and life: the unexpected interest of medieval tenancy by the curtesy

By Prof Gwen Seabourne, Professor of Legal History (University of Bristol Law School)

Window from St Mary’s church, Ross-on-Wye, Joseph with Jesus.

Even for those who enjoy spending their time with historical legal records, plea roll entries relating to medieval land law cases may not be high on a list of interesting areas to investigate. The vocabulary is often off-putting and the records somewhat formulaic and repetitive. Nevertheless, patient digging in these apparently monotonous sources can turn up information on some big, important issues of medieval thought and belief. My recent research on an area of medieval land law, published in the Journal of Legal History,[i] sheds some light on one of the biggest questions of all (in the medieval period or subsequently): what is life?

Juries and lawyers sometimes had to wrestle with questions of the presence and proof of life in cases involving tenancy by the curtesy. This was the widower’s life interest in land, following the death of his wife. Crucially, in order to qualify for this right, the widower had to have produced live offspring with his wife. Because of this requirement, medieval courts and lawyers had to make decisions in some very difficult cases in which there was doubt and disagreement as to whether a baby, now definitely not alive, had ever been alive. How did medieval people distinguish life from its absence, the fleetingly alive from those who were (in modern English) stillborn? (more…)

Shamima Begum: legality of revoking British citizenship of Islamic State teenager hangs on her heritage

By Dr Devyani Prabhat, Reader in Law (University of Bristol Law School)

Sajiv Javid’s decision to revoke the citizenship of Shamima Begum, the 19-year-old from Bethnal Green who left to join Islamic State in 2015, has been met with mixed reaction. While some supported the home secretary’s decision, others have expressed concern about its implications.

In these debates, there is much confusion about what cancellation of citizenship entails: whether this is just the cancellation of Begum’s passport, whether she is becoming stateless or whether she could be sent to Bangladesh because she comes from a family of Bangladeshi heritage.

In reality, cancellation of British citizenship means people can be left in limbo in war zones because they lose the right to re-enter the UK and to receive any diplomatic protection.

Begum’s case, while high profile, is not unique, and in 2017, there was a large spike in cases and the citizenship of 104 people was revoked on grounds where it was deemed “conducive to the public good”. (more…)

Understanding Vicarious Liability in Tort – The value of a comparative perspective

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

In this blog, I will discuss two recent publications which address comparatively the doctrine of vicarious liability in tort and demonstrate the value of a comparative perspective in this field.  Vicarious liability is a rule of responsibility which is found across the common law of tort and typically renders an employer strictly liable for the torts of its employees provided that the tort takes place in the course of employment.  The idea of holding an employer liable to pay compensation to victims of its employees’ torts, regardless of the absence of personal fault, is not, however, unique to the common law.  Ideas of strict liability for the torts of others may also be found in civil law systems, although in some systems it is subject to a rebuttable presumption of fault (see, generally, Giliker, Vicarious Liability in Tort (CUP, 2010) and J Spier (ed), Unification of Tort Law: Liability for Damage Caused by Others (Kluwer Law International, 2003)).  In all systems, it has proven controversial with some commentators arguing that the imposition of no-fault liability on employers conflicts with notions of corrective justice and notably, in a number of systems, it has been questioned to what extent liability can be said to be founded on economic justifications based on enterprise risk and loss distribution via social or private insurance. (more…)

Three cheers for the independent review of Prevent

By Prof Steven Greer, Professor of Human Rights and Dr Lindsey Bell, Lecturer in Law (University of Bristol Law School).

Of the four ‘Ps’ which frame the UK’s counterterrorist strategy – Pursue, Prepare, Protect and Prevent – the latter is by far the most controversial. It aims to stop people from becoming terrorists, or from supporting those who already are, by countering terrorist ideology and challenging those who promote it (‘counter-radicalization’), steering vulnerable individuals away from it (‘de-radicalization’), and working with sectors and institutions where these risks are considered high. Over 50,000 people and over 2,500 institutions – including schools, universities, mosques, and faith groups – engage with Prevent in over 40 priority areas and over a million people have received relevant training. De-radicalization is coordinated by Channel, an official multi-agency initiative offering non-compulsory, tailor-made support plans based on counselling and encouragement of approved activities, to those willing to receive them. On 22 January 2019 the security minister, Ben Wallace, announced that Prevent would be independently reviewed in accordance with an amendment to the Counter-Terrorism and Security Bill currently wending its way through parliament. This should be welcomed by everyone with an interest in effective, human rights-compliant counterterrorist law and policy and particularly by those, like us, who have long contested the mythology of the anti-Prevent movement. (more…)

Parliamentary Sovereignty: Brexit and Schrödinger’s cat

By Marc Johnson, Lecturer in Law (Truman Boddon Law School)

Photo: Flickr

Brexit has been a source of emotionally-charged debate. One point which has received plenty of attention is the sovereignty of Parliament and its relationship with EU membership. It is often explained that the EU’s ability to make laws (which can apply in the UK) is some form of forfeiture of sovereignty. However, this statement has a number of shortcomings, not least that it ignores the election of Members of the European Parliament by the UK, providing (at least to some degree) a democratic mandate to the European Parliament. I will use Schrödinger’s cat to suggest that sovereignty can be present in multiple places and remain intact, allowing the normal operation of both the UK Parliament and European Parliament, without offending a nuanced view of sovereignty. In order to do this, one must cast aside the orthodox views of sovereignty and start with a pragmatic and philosophical approach to Parliamentary Sovereignty as it today. Brexit is akin to lifting the lid of Schrödinger’s box to observe the actual state of sovereignty at a specific point in time, but in doing so it reduces the observers to that of a quantitative measurer, and asks ‘is it dead or alive’ – when, in fact, reality is far more complex than this. (more…)

Legal Authority Beyond the State – Towards New Insights into International Law

By Prof Patrick Capps, Professor of International Law (University of Bristol Law School) and Prof Henrik Palmer Olsen (University of Copenhagen Faculty of Law)

Two new edited volumes, which add new perspectives on international law, have recently been published by OUP and CUP. The first is International Court Authority (published by OUP during the summer of 2018 and edited by Karen Alter, Laurence Helfer and Mikael Rask Madsen), and the second is Legal Authority Beyond the State (published by CUP early in the spring of 2018 and is edited by Patrick Capps and Henrik Palmer Olsen (the writers of this blog)). The books are similar insofar as they present interdisciplinary scholarship on the authority of international law. Both are, at root, an exploration of how legal authority is established and evolves in international organizations, such as international courts. An important difference between the two books is how each sees the plausible limits of theoretical inquiry into the nature of authority. International Court Authority is more empirical, while Legal Authority Beyond the State is situated in the rationalist philosophical tradition. We argue that the empirical inquiry found in International Court Authority is limited to measure factual, observable behavior which appears to be engaging with international organizations and their laws, but it cannot account for authority per se, which is commonly accepted (in both books) to be the self-conscious orientation of actor’s behavior towards international law, so that it is consistent with the practical reasons offered by international organizations. (more…)

Nanny states and grown-up debates on alcohol policy

By Prof John Coggon, Professor of Law (University of Bristol Law School)

Photo: Flickr

Debates on alcohol policy are necessarily complex and controversial, and a complete consensus on how we should regulate this area will not be achieved. Like other lawful but regulated products, alcohol presents benefits and harms that may be understood from ranging perspectives. These include views based in cultural, economic, ethical, historical, legal, medical, population-based, religious, and social understandings. Of necessity, outlooks on alcohol policy and the role of regulation therefore vary both within and across such differing sources of critique. The values—positive and negative—of alcohol at individual, familial, community, commercial, and population levels thus call for careful, reasoned, and respectful public debates.

Even within the context of public health analysis, we cannot just look to scientific studies to inform and determine policy: we are required to consider forms of ‘evidence’ from different disciplines and sectors. This is well explained in a recent publication by the Health Foundation, with papers applied to child obesity but with lessons that are generalisable across health policy. However, for many working in public health, or members of wider communities who have interests in what makes good health policy, challenges emerge in relation to the conduct of public debates: often care, reason, and respect are replaced by simplistic slurs and assertions. And in this context, accusations of nanny statism are a key and persistent example. (more…)

Sex, Gender and the Trans Debate

By Prof Joanne Conaghan (University of Bristol Law School)

The recent debate on gender recognition reform, as played out in the press and on social media, has been painful to behold. With passions running high, much of the discourse has been marked by a lack of regard for the viewpoints of others, on occasion spiralling into professional and even personal abuse online. That the pursuit of equality should unleash such unkind sensibilities is troubling, particularly in a feminist context in which values such as inclusion, empathy, and respect for different standpoints have generally commanded wide respect.

What lies behind the apparent deadlock in debate between transgender activists and ‘gender critical’ feminists? On the one hand, there is the perfectly proper concern of trans people to have access to a legal process of gender recognition which they do not experience as invasive, cumbersome, and pathologizing. On the other, there are misgivings expressed by some in the feminist community that a legal regime of gender recognition, understood as ‘self-declaration’ and operating in various forms in Argentina, Belgium, Brazil, Chile, Columbia, Denmark, Ireland, Malta and Norway, will weaken the hard-won gains of decades of feminist activism particularly with regard to securing women’s access to safe sex-segregated spaces such as rape crisis centres and women’s refuges. The fact that existing equality legislation already provides a level of protection allowing same-sex service providers to deny access to transgender individuals where they can show this is a proportionate means of achieving a legitimate aim (for example, a counselling service might reasonably be concerned that sexually abused women will be less likely to attend group counselling if  ‘male-bodied’ trans women are also in attendance)[1] does not seem to have allayed these concerns, though surely they should, particularly as the Government has made clear that they have no plans to change equality law. (more…)