In January 2017, I published a blog on the decision of Judge Cotter QC in December 2016 in Bellman v Northampton Recruitment Ltd  EWHC 3104 (QB). This was a High Court decision determining whether an employer would be vicariously liable when a company’s managing director punched a fellow employee during an informal drinking session after the company’s annual Christmas party. Tort lawyers will know that vicarious liability is a rule of strict liability, by which a person (usually an employer) is held strictly liable for the torts of his employees provided that they take place “in the course of employment”. Following the House of Lords’ decision in Lister v Hesley Hall  UKHL 22, a tort is now deemed to be in the course of employment if it is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. In Bellman, the court was asked to apply the “close connection” test in the light of the Lord Toulson’s restatement of the test in Mohamud v Wm Morrison Supermarkets Plc  UKSC 11 in March 2016. In that case, Lord Toulson had stated that, in applying the test for “close connection”, the court has to consider two matters:
What are the functions or “field of activities” entrusted by the employer to the employee, or, in everyday language, what was the nature of his job?
Is there 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 under the principle of social justice?
Judge Cotter QC in 2016 ruled that the violent assault had not been closely connected to the managing director’s duties for the company. On 11 October 2018, a unanimous Court of Appeal allowed Bellman’s appeal and ruled in favour of vicarious liability:  EWCA Civ 2214. This blog will consider the implications of this ruling. (more…)
On 10 October 2018 five judges on a panel of the UK Supreme Court unanimously held that the owners of Ashers bakery in Belfast, Mr and Mrs McArthur, had not violated the rights of LGBT activist, Mr Gareth Lee, by refusing to supply a cake decorated with Sesame Street characters Bert and Ernie, the logo of the campaign group ‘QueerSpace’, and the slogan ‘Support Gay Marriage’. The bakery had initially accepted Mr Lee’s order but declined to complete it and returned his money on the grounds that the proposed message conflicted with the deeply held religious convictions of the proprietors, that the only form of marriage consistent with the Bible and acceptable to God is that between a man and a woman. Supported by the Equality Commission for Northern Ireland, Mr Lee brought a claim against the bakery and the McArthurs (‘the appellants’) for direct and indirect discrimination on grounds of sexual orientation and/or on grounds of religious belief and/or political opinion contrary to relevant legislation. In March 2015 a county court judge held that Mr Lee had been the victim of direct discrimination on grounds of sexual orientation, religious opinion and political belief. The Northern Ireland Court of Appeal subsequently upheld the sexual orientation complaint and decided there was no need to settle the other issues. Having earlier been joined as party to the appellate proceedings, on 28 October 2016, the Attorney General for Northern Ireland referred the matter to the UK Supreme Court where it was heard together with the appeal by the McArthurs and the bakery (more…)
‘Education does not change the world. Education changes people. People change the world.’ — Paulo Freire, Brazilian Philosopher and Educator
In the 2018/2019 academic year, Yvette Russell and I will be (for the first time) teaching a unit called Law and Race. It is a very exciting prospect, not least because there are very few law schools in the UK who teach race in any direct or focused way, and much fewer have a unit dedicated to race. This has been an intellectually stimulating enterprise for both of us, and in this article, I would like to explain why we have embarked on it and what we hope to achieve.
The history of the world can be perceived as the history of continuing inequalities. Oftentimes, race functions as the motivation for and justification of oppressive social, cultural, economic and political structures. This is evidenced by colonisation, slavery, and persistent global racial inequalities that cut across gender and class. Law has often been used to create, justify or maintain these demarcations. Notwithstanding this, legal study often ignores the correlation between race and law, as well as the paradox inherent in the use of law to both oppress and liberate. In our unit we aim to examine legal history and the current state of the law in a critical exploration of how legal evolution has impacted upon and caused racial disparities, and how these factors are continuously consciously and unconsciously embedded and reproduced within the operation of law. (more…)
Momentum seems to be building for a people’s vote. I argue here that there are a number of legal and political issues which need to be addressed before it is possible to decide whether a people’s vote is indeed ‘the answer’ to the mad Brexit riddle. My conclusion is that it is not.
The most common plea is for a people’s vote ‘on the final Brexit deal negotiated by the UK Government’. But, there are also calls for a people’s vote ‘if the Brexit deal is rejected by Parliament’. Scratch a little below the surface, and it becomes apparent that many of those who are now calling for a people’s vote are either uncertain, or perhaps deliberately vague, about the circumstances in which a people’s vote should be held. They are also uncertain, or again perhaps deliberately vague, about the nature of the question to be put to the people, the timing of the people’s vote, and indeed the consequences which should flow from such a vote. There are, as the Leave campaign should be able to testify, pros and cons for campaign groups who take this sort of stance. A vague plan might elicit support from a wide range of people. But then, it might turn out not to be able to deliver that which people were hoping for.
Calls for a people’s vote come from a variety of sources. The most enthusiastic voices are the ‘remainers’. They tend to see a people’s vote as an opportunity – perhaps the last opportunity – to stop Brexit, and to enable the public to vote not, as in June 2016, on the abstract idea of leave, but instead on the Government’s concrete Brexit plans. They are confident that while there was a small majority for Brexit in 2016, there would not, given what we now know, be a majority for any of the Government’s possible plans, or indeed for a ‘no deal’ Brexit. Recent polls support their claim. They have been joined by a number of other groups, who argue that there is a tactical political advantage to be gained (for the Government and the Labour Party) in backing a people’s vote. (more…)
By Imogen Moore, Senior Teaching Fellow (University of Bristol Law School)
‘The Successful Law Student: An Insider’s Guide to Studying Law’ (Oxford, 2018), co-authored with Craig Newbery-Jones of the University of Leeds, was written with the aim of supporting and guiding law students through transition, the law degree, and beyond. One of the particular features of the book is the incorporation of authentic student comments to support, challenge and enrich the text. It is the value and significance of this student voice that I intend to focus on in this blog post.
As the slightly quirky design might indicate, ‘The Successful Law Student’ is neither a substantive law textbook nor a conventional legal skills compendium. Our goal was to create a ‘supportive friend’ to assist a law student through the challenges they might face, recognising that every student’s experience will be unique. The book is therefore aimed at any and all aspiring and current law students rather than directed toward any particular ‘type’ of law student, law degree, institution or career aspiration. And at its core is a definition of success rooted in the individual and not dependent on external validation.
A key element of our initial proposal was the inclusion of the authentic and reflective voice of our students, providing their take on aspects of the law student experience: a feature we dubbed ‘I wish I’d known’. This reflects the book’s origins in myriad conversations with prospective, current and former students over many years in different institutions, as well as our own interests, aims, experiences, and occasional frustrations. Our publisher, OUP, supported this by enabling us to communicate with a large number of students beyond our own institutions, ensuring the student voice incorporated within each chapter of ‘The Successful Law Student’ truly reflects the diverse law student community.
We were pleased – but perhaps a little surprised – at just how popular this feature proved to be with reviewers of early drafts. It appeared that using student voice in this way was really valued. Why might this be? (more…)
Although it can be rightly said that Michel Foucault is one of the most influential scholars of the 20th (and dare we say it? 21st) century, it is also easy to affirm that his ideas have always elicited a certain degree of scepticism. A degree of scepticism would be a suave euphemism to describe the reaction that Foucault’s ideas on power, subjectivity, and truth have caused in the legal field. Scholars as diverse as Jürgen Habermas, Duncan Kennedy, and Nicos Poulantzas (to name a few) have accused Foucault of excessively downplaying the role of law in modernity and of culpably disregarding the function of rights in protecting individuals against external interferences – either public or private. This line of reasoning found its most elaborate champions in Alan Hunt and Gary Wickham who, in “Foucault and law” (Pluto Press, 1994), advanced the so-called “expulsion thesis”: Foucault was guilty of having expelled law from the locus of power, depicting the legal discourse as a sort of veneer for real power with no substantive importance in modern societies.
It must be said that, notwithstanding such trenchant critiques, Foucault’s thought has continued to have a huge effect in many legal areas – from criminal law, to labour law, to international law and beyond. It must also be recognised, however, that the trope of the “expulsion thesis” has survived for almost two decades basically unchallenged (at least in the Anglo-Saxon academia), thus gnawing at the foundations of any Foucauldian-inspired reading of the legal field.
My own monograph “A Foucauldian Interpretation of Modern Law” (EUP, 2017), similarly to Ben Golder’s works on this topic – “Foucault’s law” (Routledge, 2009) together with Peter Fitzpatrick and “Foucault and the politics of rights” (SUP, 2015) – addresses exactly this problem, trying to solve the puzzle of the relationship between the legal discourse and contemporary forms of power as described by Foucault. My interest in this question was dictated not only by what I saw as gap in the literature, but also from a more general preoccupation. (more…)
As Brexit day approaches and the UK and the EU fail to complete their negotiations for a withdrawal and transition agreement to ensure an ‘orderly Brexit’, more and more voices will raise strong concerns about the impact of a no-deal Brexit for important sectors of the UK economy and public sector. In a leaked letter, the trade association of NHS providers sent a clear warning message to the public bodies in charge of running the English NHS (NHS England and NHS Improvement). As widely reported by the press, NHS providers made it clear that poor co-ordination by ministers and health service bosses means there has been a failure to prepare for the UK to be left without a Brexit deal, and that this could mean “both stockpiles and shortages of medicines and medical devices”.
NHS providers have thus requested that the Department of Health and Social Care, NHSE and NHSI accelerate preparations for a no-deal Brexit. In this post, I argue that there is very limited scope for no-deal preparations concerning medical equipment and consumables, and that this can have a very damaging impact on the running of the NHS post-Brexit, given that it annually spends approximately £6 billion on goods (such as every day hospital consumables, high cost devices, capital equipment and common goods). (more…)