Month: April 2020

As the Corona pandemic worsens, EU borders shut down: “A new low point for the EU’s respect for refugee rights and international law”

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By Prof Elspeth Guild, Queen Mary University of London and Kathryn Allinson, Research Assistant, Queen Mary University of London and Teaching Associate, University of Bristol.

On 3 March 2020, the heads of the key EU law-making institutions met at the Greek-Turkish border to support the efforts of the Greek border guards in pushing back and refusing crossing to a number of people (apparently not Turkish or Syrian nationals) seeking to flee Turkey and enter the EU. On 4 and 6 March respectively, the EU Councils for Home Affairs and Foreign Affairs, made statements applauding the action of the four heads of EU institutions in support of Greek border guards stating “The EU and its Member States remain determined effectively to protect the EU’s external borders. Illegal crossings will not be tolerated.”

The problem in international law with the actions of the Greek border guards, and their encouragement by the four heads of the EU institutions, is that they are not consistent with the obligations of the Member States and the EU (as stated in Article 78(1) Treaty on the Function of the European Union). This provision states that the EU is committed to respecting the UN Convention Relating to the Status of Refugees 1951 and the 1967 Protocol. Article 33 of that Convention provides that ‘no one shall be sent back to a state where he or she is at risk of persecution.’ This principle of non-refoulment is thus protected in international refugee law but is also a non-derogable obligation under international human rights law and considered to have customary law status. (more…)

Covid-19 and homelessness applications

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

The onset of Covid-19 gave rise to a massive effort to provide health care services and accommodation for homeless persons.  This includes not just those people who are rough sleeping, but also those otherwise at risk without a home, such as those living in hostels and B&B accommodation.  A range of organisations have assisted in this process, from medical health professionals to local authorities, who have procured empty hotels and other spaces for homeless persons to self-isolate as well as acted on the government’s guidance to keep temporary accommodation open.

In this post, I consider whether homeless persons who come to the attention of the local authority should be regarded as having made an “application” for homelessness assistance.  The homelessness legislation is one of the most litigated areas in public law, and I have recently drawn attention to the supposed cultural change brought about by the Homelessness Reduction Act 2018.  It is particularly relevant to students taking our unit in Rich Law, Poor Law, or engaging in work with our law clinic. (more…)

A Prime Minister in Hospital: the Constitutional Implications

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By Prof Gavin Phillipson, Professor of Law (University of Bristol Law School) and Prof Jeff King, Professor of Law (University College London).

Following the news that the British Prime Minister, Boris Johnson, has been taken to hospital for treatment for COVID-19, there has been much discussion about what should happen if he should die or become incapacitated.  Who would take over and how would such a successor be chosen? What is the role of Dominic Raab, the Foreign Secretary, who has been designated to deputise for him in his absence? And how do we find the answers to the above questions, given the UK has no codified Constitution to consult? (more…)

Parks in the time of Covid-19

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

The Covid-19 virus has thrown both housing inequality and its corollary, a lack of access to green or open space, into sharp relief. For some, being told to stay home is boring, awkward and restrictive. For others, home has become a site of confinement, lacking any opportunity to play on grass, sit down in the sunshine or socialise at a safe distance.

At this time of national crisis, local authorities have demonstrated their powers to close parks without public consultation. Lambeth Council temporarily shut Brockwell Park for Sunday 5th April, announcing the news on Twitter, describing the revellers’ behaviour as “unacceptable” saying that it was acting “to comply with the national guidelines on social distancing needed fight Covid-19”. Victoria Park is closed for the foreseeable future, Tower Hamlets reaching their decision jointly with Hackney Police, due to “the failure of some visitors to follow social distancing guidance”. On Radio 4, Communities Secretary Robert Jenrick confirmed that these were decisions for the councils to make, noting only that: “I have asked them to be very judicious in taking that step and only to do that where they feel it is impossible to maintain social distancing rules within their parks or open spaces”. (more…)

Covid-19 Lockdown: A Response to Professor King

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By Robert Craig, PhD Candidate and Tutor in Law (University of Bristol Law School)

This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

In two recent posts for the UK Constitutional Law Association (here and here), Professor Jeff King has set out a focused analysis of key elements of the recent Regulations (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8)) that purport to place severe restrictions on the ability of ordinary citizens to leave the place where they are living. (more…)

Vicarious Liability in the Supreme Court: Can we finally say it is no longer on the move?

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

In Various Claimants v Catholic Child Welfare Society (CCWS) [2012] UKSC 56, Lord Phillips famously stated that “The law of vicarious liability is on the move.”  This leading case also made it clear that two elements have to be shown before one person can be made vicariously liable for the torts committed by another:

  1. a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other; and
  2. a connection between that relationship and the tortfeasor’s wrongdoing.

Later cases such as Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire CC [2017] UKSC 60  have shown that the relationship, while primarily that of employer and employee, can extend to relationships akin to employment, including the relationship between a priest and his bishop[1] and a local authority and the foster parents to whom it entrusts children in care.  The Supreme Court in Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11 also broadened the “connection” test to impose vicarious liability for torts which were connected to the field of activities of the employee, and where there was a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable. (more…)

Procurement in the time of COVID-19

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By Prof Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School).

Public procurement is at the forefront of the response to the challenges of COVID-19. Only well-equipped hospitals can save patients’ lives without endangering those of the medical, nursing and support workers in the NHS. Shortages of relatively simple consumables such as personal protection equipment (PPE), but also cleaning and hygiene products, can endanger lives and have devastating effects on the resilience of the healthcare system to (continue to) cope with the pandemic. Shortages of essential equipment such as ventilators can have even more direct nefarious impacts on individual lives.

The importance of public procurement and supply chain management has rarely been so prominently in the public eye and political debate—except, perhaps, in the case of notorious procurement scandals, such as the recent Brexit-related #ferrygate. In this blog post, I reflect on some of the emerging issues in the procurement response to COVID-19 and on the perhaps even bigger challenges that will follow, from a regulatory perspective. (more…)

Beyond liberty: social values and public health ethics in responses to COVID-19

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

Legal and policy responses to COVID-19 rest on and express the balance of different basic values and principles. Earlier and current regulatory approaches bring into sharp relief how liberty must be understood and weighed against other values. This is for the sake of liberty itself, but crucially too for other compelling aspects of social justice.

Emergency powers and pandemic ethics

COVID-19 is a global problem, albeit one that governments across the world have been approaching differently. Over the past weeks we have seen fast changes in policies as different countries have sought to anticipate and respond to the extraordinary scale of the challenges that we face and which lie ahead. (more…)

COVID19 and the Future of Work

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By Dr Katie Bales, Lecturer in Law (University of Bristol Law School)

The current COVID19 crisis has shone a light on the world of work by interrupting the supply and demand necessary for global capitalism to function. In the UK context, it has drawn attention to the inadequacies of our current employment rights framework; the ways in which certain types of work is insecure and de-valued;  the racialised, gendered and classed boundaries of some ‘front-line’ jobs; the vast power disparities between employers and employees; and called into question the necessity of office work, or indeed a 5 day working week.

Perhaps then this period of reflection might open up new perspectives and ideas amongst the public which could radically transform the future world of work, pushing forwards positive change which forefronts worker protection, adequate remuneration, recognition, work-life balance and interests outside of traditional ‘work’ under industrial capitalism. Below, I outline some of the areas in which these changes should take place. (more…)

A Legal Landmark in Reproductive Rights: The Abortion (Northern Ireland) Regulations 2020

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By Dr Sheelagh McGuinness, Reader in Law and Dr Jane Rooney, Lecturer in Law (University of Bristol Law School)

On 31st March, 2020, The Abortion (Northern Ireland) Regulations 2020 came into force. This is a landmark in reproductive rights in Northern Ireland. Many were sceptical as to whether this day would ever arrive. The regulations represent the culmination of decades of activism across civil society, grassroots and medical organizations, legal representatives, and political actors. They constitute a huge step forward in the protection of the reproductive health of women. However, the scope of protection afforded will depend on how they are interpreted and implemented. In this blog we give an overview of the regulations and highlight some areas of on-going concern. (more…)