Author: legalresearch

Time to be realistic about human rights?

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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. (more…)

Law and Politics in the Supreme Court

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

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. (more…)

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

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By Miss Rose Slowe LLM, Senior Research Fellow (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. (more…)

Protecting civil society against shrinking spaces

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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. (more…)

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

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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. (more…)

Toward a ‘Global Britain’: The post-Brexit landscape

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By Dr Clair Gammage, Lecturer in Law (University of Bristol Law School).

In the Prime Minister’s speech of 17 January 2017, in which the Brexit trade negotiation strategy was announced, Theresa May was keen to reassure the world that a ‘Global Britain’ would rise from the ashes of the now infamous June referendum. Outlining twelve core objectives to be pursued in the process of withdrawal from the EU once Article 50 has been triggered, May revealed little substantive detail about what the UK wants from the EU and, indeed, from the rest of the world. Underpinning the strategy is the first objective of “certainty” – certainty for industries, for workers, and for the general population. We now know that the European Communities Act will be repealed but EU law will be translated into the UK legal system. Of course, it is then the choice of Parliament to decide which laws stay and which laws go – presumably depending on the extent to which those laws reflect our Global British values according to the legislature. Will the first objective of “certainty” allay the fears of industry, the public sector, and the general population? The answer to this question rests entirely on the way in which the negotiations are handled from this moment on. So, what does the speech tell us in terms of the post-Brexit trading strategy?

There are two key aspects of the trade strategy going forward: withdrawal from the EU and a renegotiation of our terms with the EU; and, the UK’s trading relationship vis-à-vis the rest of the world which will take the form of WTO compatible free trade agreements (FTAs). FTAs are economic spaces in which the countries to the arrangement reduce tariffs on substantially all the trade that falls under the agreement but each individual member retains its own external tariff with other countries on those goods. The first and second limbs of the trade strategy are interrelated and once Article 50 has been triggered a new form of foreign policy-making that I have (rather tongue-in-cheek) coined “Global Britain external relations law” will begin to manifest. (more…)

When Christmas drinks go wrong – Vicarious liability and the ‘course of employment’ test in the High Court

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

The office Christmas party is something many of us will have enjoyed recently.  In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14).  Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.

In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director. (more…)

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

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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. (more…)

The Ugandan Bridge Schools & Education as Freedom

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By Dr Foluke Adebisi, Teaching Associate (University of Bristol Law School).

© CCTV Africa
© CCTV Africa

On the 4th of November 2016, in Bridge International Academies Ltd v. Attorney General Uganda, a Uganda High Court judge ordered the closure of 63 Bridge International Schools. The judge cited the use of unqualified teachers, unsanitary learning conditions as well as the fact that the schools were not properly licensed as reasons for ordering the closures. The court also considered the poor quality of education provided in these schools.

Bridge schools are backed by Bill Gates and Mark Zuckerberg. The schools claim to have 12,000 students in Uganda and 100,000 students across Africa, mainly. According to their teaching model statement, teachers read scripted lessons from a tablet. The content of learning is standardised and not adapted to individual needs. It is suggested that this is an effective low-cost way of providing ‘quality’ education. Nevertheless, Bridge Schools in Africa have been the subject of much controversy. The UN has suggested that funding such schools could contribute to violations of international law. Those who suffer the most from this are poor Ugandans, they are caught at the intersection of a convergence of disadvantage: government education is unreliable, often unsanitary, and almost always underfunded. Private education is unaffordable and inaccessible for most Ugandans. Yet Bridge education is barely education at all. (more…)

EU Non-Discrimination Law in the Courts. Approaches to Sex and Sexualities Discrimination in EU Law

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By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

img_6534In January 2017, my first monograph entitled EU Non-Discrimination Law in the Courts will be published with Hart Publishing/Bloomsbury. The monograph compares the Dutch and German application of EU non-discrimination law focusing on discrimination on grounds of sex and sexual orientation. It includes an analysis of the case law on direct as well as indirect discrimination and covers the cases which are linked to Article 157 TFEU, the Framework and Recast Directives (excluding equal pay for equal value and social security law).

Since the year 2000, the material and personal scope of EU non-discrimination law has been significantly broadened and has challenged national courts to introduce a comprehensive equality framework into their national law to correspond with the European standard.

The book provides a multi-layered culturally informed comparison of juridical approaches to EU (in)direct sex and sexualities discrimination and its implementation and application in Germany and the Netherlands. It examines how and why national courts apply national non-discrimination law with a European origin differently, although the legislation derives from the same set of EU law and the national courts have to respect the interpretive competence of the Court of Justice of the European Union. As such, it provides an in-depth analysis of the national legal and non-legal context which influences and shapes the implementation and application of non-discrimination law and reveals how some of these factors affect the interpretation and application of national non-discrimination law with a European origin. (more…)