Author: legalresearch

Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges

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By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School), Prof Janneke Gerards, Chair in Fundamental rights law (Utrecht University), and Miss Rose Slowe, Barrister (Middle Temple) and Honorary Research Fellow (University of Bristol Law School).

In our experience the general public, some of our students, and even some of our colleagues, are confused about the differences between the 47-member Council of Europe, the parent body of the European Court of Human Rights, and the 28 (soon to be 27)-member European Union, in human rights and other fields. Confusion about the differences between the two organizations has also been compounded by increasing interaction between them, particularly over the past decade or so. The human rights-related literature is also dominated by separate studies, largely concerning their respective legal systems. As a result, more integrated accounts are increasingly required. This is the primary objective of our recently-published book – S. Greer, J. Gerards and R. Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge University Press, 2018). (more…)

Three stories about English land secrecy

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

Information about land is valuable, politically, fiscally and – increasingly – as geospatial data products ripe for commercial development. Since William the Conqueror’s Domesday Book was completed in 1086, politicians, campaigners and citizens have wanted to know who owns what. Taxation continues to matter but so does freedom of information. Microeconomics, for example, teaches us that a “free market” relies on symmetry of information: if one party knows more than another, the level playing field is distorted. Money laundering and terrorist financing justify the EU’s pursuit of registers of beneficial ownership. Transparency campaigners argue that open and free data on land ownership is both a citizen’s right and that open registers improve efforts to crack down on tax avoidance. Although rights to privacy continue to resonate in English politics, particularly to beneficial ownership in trusts, the calls for transparency grow louder.

And yet, as these three stories about land secrecy show, we still struggle for information about land ownership and deals. While land registry data is publicly available it is held by estate, rather than being mapped cadastrally, giving a birdseye view of land ownership by presenting the boundaries of land ownership spatially. The paradoxical result, as MSP Andy Wightman has pointed out, is that it is easier to assemble cadastral information for previous generations, based on historical surveys (Domesday, the 1830-1840s Tithe Maps, The Return of Owners of Land from 1873-5 or the 1940s Farm Land Use mapping in England) than map land ownership today. Of course, transparency could be achieved at the stroke of a political pen to find out who owns England (story 1), to understand the extent and range of beneficial ownership of land (story 2) or to avoid the use of “redacting” in “viability assessments” to reduce the amount of newly built affordable housing (story 3). Yet – so far – there is a lack of political will to end ongoing secrecy about land ownership and land deals. (more…)

Scarce regulatory resources: tactical enforcement and hybrid data governance in the cloud

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By Dr Asma Vranaki, Lecturer in Law (University of Bristol Law School).

© Ben O’Bryan

European data protection authorities (EU DPAs) play crucial roles in protecting personal data rights. However, many EU DPAs do not have adequate access to resources in order to be effective data privacy protectors. Although the data privacy law literature recognizes that many EU DPAs operate within such constraints, to date, there has been a dearth of empirical studies on how limited resources can impact on enforcement. A new article* makes a modest attempt to address this empirical gap by analysing selected empirical findings of a recent project which examined the investigations of multinational cloud providers by EU DPAs (Cloud Investigations).

This article draws on the fields of socio-legal studies and regulation to interpret these empirical findings and advances three arguments. First, due to their fiscal constraints, some EU DPAs often have to make tactical enforcement decisions about initiating Cloud Investigations as well as the foci and methods of Cloud Investigations. The decision-making process can be very complex for some EU DPAs as they have to not only consider but also at times balance a broad range of factors including external pressures, law and enforcement styles. Second, hybrid forms of data governance can often emerge during Cloud Investigations as EU DPAs delegate their regulatory tasks to private and governmental (other than EU DPAs) actors due to the limited resources. Finally, this article suggests that hybrid data governance needs to be carefully designed in order to ensure effective and robust data governance. Suggestions are made on how the ‘regulatory space’ can be designed in order to promote accountability, trust, robust data protection and effective multi-actor collaboration.

* This article is derived from the work which Dr Vranaki undertook for the ‘Accountability for Cloud’ research project which was funded by the European Commission Seventh Framework Programme. It can be freely downloaded from https://www.researchgate.net/publication/325451273_Scarce_regulatory_resources_tactical_enforcement_and_hybrid_data_governance_in_the_cloud.

Between Rock and a hard place: MWB Business Exchange Centres v Rock Advertising

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By Ms Joanna McCunn, Lecturer in Law (University of Bristol Law School).

Since the 19th century, contract law in England has been strongly influenced by will theory: the idea that all contractual liability is founded on the intentions of the parties. Enthusiasm for this model dipped during the 20th century, as it became clear that many contracting parties were being strong-armed into contracts they only vaguely understood. However, will theory is now back with a vengeance, at least in the commercial sphere. Its implications can be seen clearly in the recent case of MWB Business Exchange Centres v Rock Advertising [2018] UKSC 24, judgment in which was helpfully handed down by the Supreme Court the day after the Bristol contract law exam.

In November 2011, Rock Advertising began to occupy offices which were managed by MWB Business Exchange Centres. Rock were unable to meet the licence fee, and within a few months had fallen into arrears of over £12,000. On 27 February 2012, Rock proposed to defer some of its payments to MWB. The result would be that MWB would recoup the arrears, but at a later date, losing interest on the money in the meantime. In a phone conversation, MWB’s representative initially accepted the proposal. However, after consulting with her manager, she later emailed Rock purporting to reject it. On 30 March, MWB locked Rock out of the office for non-payment of the arrears, and gave notice to terminate their licence. The question was whether Rock could enforce the 27 February agreement. (more…)

Analysis of the New EU General Data Protection Regulation

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By Mr Andrew Charlesworth, Reader in IT Law (University of Bristol Law School).

On Friday 25 May 2018, the EU General Data Protection Regulation (Regulation (EU) 2016/679), commonly referred to by its acronym of GDPR, comes into force across the EU. In the UK, this will be accompanied by the coming into force of the Data Protection Act 2018 which received Royal Assent on 23 May 2018. The new Act repeals the existing Data Protection Act 1998 and revokes the secondary legislation made under the 1998 Act.

The GDPR is directly applicable, which means that with the exception of limited areas of Member State discretion, it applies in the UK without further need for national legislation. The Data Protection Act 2018 addresses those areas of Member State discretion, and also implements the new Data Protection Directive for Police and Criminal Justice Authorities (Directive (EU) 2016/680), which is designed to protect individuals’ personal data when their data is being processed by police and criminal justice authorities, and to improve cooperation in the fight against terrorism and cross-border crime in the EU by enabling police and criminal justice authorities in EU countries to exchange information necessary for investigations efficiently and effectively.

Andrew Charlesworth, Reader in IT law at the University of Bristol Law School, is currently actively engaged in the analysis of the new rules through a series of short articles on the GDPR in conjunction with Cloudview (UK) Limited. Andrew is also providing key expertise in the development of the Privacy Flag initiative. You can access Andrew’s analysis and other work through the links provided in this post. (more…)

Regulatory defection in electricity markets

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By Dr Colin Nolden, Vice Chancellor’s Fellow researching in Sustainable City Business Models (University of Bristol Law School).*

Graphic by Sarah Harman. Taken from energy.gov.

Electricity systems are undergoing rapid transformation. An increasing share of previously passive consumers is defecting energy demand and supply from the public electricity network (grid) as active ‘prosumers’ while technological and business model innovation is enabling demand-side resources to provide reliable and cost competitive alternatives to supply capacity.

Yet, centralised supply-focused market structures dominated by legacy infrastructures, technologies and supply chains associated with path-dependencies and technological lock-ins continue to dominate. Regulation has been designed around these existing supply-focused markets and structures rather than networks of the future capable of integrating and facilitating smart, flexible systems. Current systems and their regulatory frameworks are struggling to engage and integrate a range of technological, economic and social innovations promising consumer-oriented solutions to environmental problems. (more…)

Is mental health finally emerging from the shadows into light?

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By Dr Judy Laing, Reader in Law and Co-Director of the Centre for Health, Law, and Society (University of Bristol Law School).

Mental Health Awareness Week (14-20th May) is a good opportunity for us to reflect on how far mental health has emerged from the shadows over the last decade. For too long, mental health has been neglected in England and Wales, and this is particularly true for our main political parties, where up until quite recently, mental health has rarely featured in pre-election manifestos. There are now positive signs that this is changing and the nation’s mental health is now firmly on the political agenda.

As the King’s Fund identified in a report in 2015, mental health has finally become a political priority for the major political parties. We saw evidence of this in Theresa May’s Conservative party conference speech in October 2017, as she expressed her desire to tackle the injustice and stigma associated with mental health. This was accompanied by a government pledge to direct additional resources to frontline mental health services and staff. This rhetorical commitment to prioritise mental health is welcome and long overdue, but of course, it must be followed by clear action on the ground in terms of additional staff, services and support, if we are going to witness a radical change in the reality of life for the 1 in four of us who will suffer from a mental health problem each year. (more…)

Working together to combat global health inequalities

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By Prof John Coggon, Professor of Law, and Dr Judy Laing, Reader in Law, co-Directors of the Centre for Health, Law and Society (University of Bristol Law School).

The World Health Organization (WHO) celebrated its 70th anniversary last month, on 7th April 2018, which is World Health Day. The WHO was established in 1948 and one of its founding principles provides that:

the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

The WHO has achieved a considerable amount in that time by focusing on many of the key challenges to reducing global health inequalities. Some of the most recent challenges faced by the WHO are the rise in drug resistance across the globe, as well as the threat of global pandemics, as witnessed with the Ebola virus outbreak in West Africa in 2014, and the burdens of noncommunicable disease. International organisations such as the WHO have a crucial role to play in tackling these threats to our health fairly and effectively, but it cannot achieve change alone. The WHO must do so in partnership with national governments and other key actors. Within these agendas, there are crucial roles for law and governance as levers to help create the conditions in which people can enjoy good physical and mental health.

One of the world’s leading global health law scholars, and one such key actor and WHO collaborator, Professor Larry Gostin, visited the Centre for Health, Law, and Society (CHLS) at the University of Bristol in April 2018 as a Benjamin Meaker Visiting Professor. He came to talk about his collaborations with the WHO, and to explore some of the key global health challenges with staff and students from across and beyond the university. A key focus throughout his visit was the ways that we can and should link scholarship with activism, policy, and practice: a question at the heart of the mission of CHLS. (more…)

Why Read Kant’s Anthropology?

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By Dr Basil Salman, Teaching Associate in Law (University of Bristol Law School).

When I was a graduate student, I became very interested in one of Immanuel Kant’s lesser-known works, his Anthropology from a Pragmatic Point of View. In this weird and wonderful book, which has received renewed attention in recent years, we see a very different side of Kant to the one we are used to. It is a Kant removed from the transcendental idealism of the Critique and the abstract principles of the Groundwork; and with the aim, not of explaining the basis of knowledge or morality, but of offering a practical guide to living. What we find in the Anthropology is a kind of applied ethics: a number of observations about human activity, coupled with guidance on how to live successful lives. We find advice on how to use the imagination, how to remain good-tempered, and even how to hold a good dinner-party.

One may well wonder why we should be concerned with a work like this. No doubt there are a number of reasons why I myself became attached to it (some of these strategic of course—the most obvious being that I wanted something new and interesting to write about for my dissertation!). But despite the fact that numerous passages from Kant’s Anthropology strike us as odd, undeveloped, and rather disconcerting today, I think there is a lot in it that recommends itself to us as legal scholars. Indeed, going back and revisiting my thinking from that time, I should like here to offer some reasons why I think legal philosophers should go ahead and read it.  (more…)

Google: is the competition truly just a click away?

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By Ms Beatriz Marques, LLB (Hons) (2011 alumna) (University of Bristol Law School).*

Google has faced heightened scrutiny by numerous competition authorities worldwide since 2007. Most significantly the European Union (EU) fined Google a record €2.4bn ($2.7bn) for abusing its dominant position as a search engine. This blog post examines Google’s recent antitrust troubles in the EU and the United States (US) and analyzes whether the EU fine is likely to ignite further investigations against Google. (more…)