University of Bristol Law School Blog
A window into the legal research carried out at the Law School
by Judy Laing, University of Bristol Law School
‘A sad soul can kill you quicker, far quicker, than a germ’.
John Steinbeck, Travels with Charley: In Search of America.
Mental Health Awareness week this year is focusing on loneliness. As the Chair of the Mental Health Foundation explains, loneliness is a ‘significant public health issue’ and ‘remains one of the key indicators of poor mental health’. (more…)
by Peter Andersson, University of Gothenburg and Tonia Novitz, University of Bristol Law School
The crisis which arose in March 2020 regarding the coronavirus pandemic immediately centred on risk. Predictions had to be made swiftly regarding how the virus would spread, whom it might affect and what measures could be taken to prevent exposure, including in the workplace. As part of a broader Swedish Research Council project (2018 – 2022), we have conducted a comparative study of English and Swedish responses to the pandemic, focussing on their treatment of risk.
It was apparent that the two countries took very different approaches to COVID-19. For example, ‘lockdowns’ like those implemented in the UK were not imposed in Sweden, although Swedes were requested to work at home as much as possible.
We recognise that risk assessment plays two key roles. One is pre-emptive, namely to prevent harms rather than only compensating for such harms after the fact. The second role is defensive, protecting an employer from liability by demonstrating that due care was taken. We have found that the Swedish approach is more pre-emptive, while in the UK risk assessment is used more defensively in criminal and civil litigation.
The pre-emptive role of risk assessment, or the scope of any ability to prevent harms, is inherently limited by who is identified as the legitimate subject of risk assessment: ‘employees’, ‘workers’ or ‘independent contractors’? This has been the subject of a judicial review action brought by the Independent Workers’ Union of Great Britain (IWGB) against the Secretary of State for Law and Pensions. A significant outcome of the judgment delivered by Chamberlain J, which sought to implement the European Union (EU) Framework Directive on Health and Safety and the Personal Protection Equipment (PPE) Directive, was the extension of entitlement to PPE to so-called ‘limb(b) workers’ (as designated under UK statute) as opposed to merely ‘employees’. Moreover, the judgment recognised the right of ‘workers’ to refuse to work where there is serious or imminent danger under section 44 of the Employment Rights Act (ERA) 1996 without detriment. However, only those workers deemed ‘employees’ could claim protection from dismissal under section 100 of the ERA.
By way of contrast, Swedish work environment law has long recognised that a broader range of persons qualify for health and safety protections as ‘employees’ or ‘equivalent to employees’. A specific project was created extending protections to self-employed platform workers. After legal challenges in which employers successfully argued that they did not have ‘employer responsibility’, the Swedish Work Environment Authority abandoned this scheme, but a proposed EU Platform Work Directive (if adopted) may enable its reinstatement. In this sense, EU law has a significant effect on the coverage of risk assessment, which raises important issues regarding protection of those at work in the UK post-Brexit.
There is also a vital difference between England and Sweden in terms of the statutory funding and powers of relevant supervisory bodies. While both countries have comparable statutory agencies engaged in promoting assessment of risk by employers and its amelioration, the UK Health and Safety Executive (HSE) and the Swedish Work Environment Authority (SWEA), there were notable disparities between their capacities in the context of the pandemic. Both actively advocated that employers undertake additional risk assessment during the pandemic. However, funding of the HSE had declined dramatically in the years preceding the pandemic (from £331 million in 2009/10 to £226 million in 2019/20), such that a temporary injection of £14 million in May 2020 could not readily revive its supervisory functions, nor did the HSE intervene with detailed advice as regards what risk assessment in English workplaces should entail. Instead, it appeared that the HSE had ‘gone missing’. It was the English Government that issued sometimes questionable guidance on what was ‘COVID-secure’, with prominent advice from what was ‘Public Health England’ (since October 2021 replaced by two bodies, the UK Health Security Agency (UKHSA) and the Office for Health Improvement and Disparities, which places health-related issues more directly under UK Government control). Risks identified in such guidance tended to be solely physical and not psycho-social, despite forms of stress created by combined teleworking and home schooling, especially for women. It remains probable that in England, few civil and criminal cases will be brought, given that employers did follow the bare bones of this guidance. In this sense, risk assessment in England has served its defensive function for employers, but the rates of deaths and long-COVID now being reported suggest that the workforce did not go unharmed.
Finally, there is a significant difference between England and Sweden regarding the extent of collective worker representation promoted in OSH. In publications issued by the HSE during the pandemic, recommending that employers ‘talk to’ their workers, statutory requirements to inform and consult workers were glossed over. By way of contrast, the SWEA received more complaints and carried out more inspections, prompted by the active statutory role which trade union representatives play. There are wider ranging entitlements in Sweden to call for a stoppage of work until OSH issues are addressed and these were deployed in the context of the COVID-19 pandemic on 328 occasions.
In February 2022, most COVID-19-related public health restrictions ended in England and Sweden, despite criticism from scientists and medical professionals, giving further cause to reflect on different responses to management of risk assessment and their effects. While coronavirus variants spread globally and other issues concerning viral contagion remain, we consider there remain compelling arguments for legal, policy and institutional reform that deserve continued attention.
See further:
by Michael Naughton, Reader in Sociology and Law, University of Bristol Law School and School of Sociology, Politics and International Studies (SPAIS)
The Criminal Cases Review Commission (CCRC) is the last hope for alleged innocent victims of wrongful convictions who fail in their attempts to overturn their convictions within the normal criminal appeals system. It was established as the main recommendation of the Royal Commission on Criminal Justice (RCCJ), which was announced on the day that the Birmingham Six overturned their wrongful convictions in the Royal Courts of Justice. It was the case of the Birmingham six and other now notorious miscarriage of justice cases including those of the Guildford Four, the Maguire Seven, Judith Ward, as well as a host of lesser known cases that were overturned around the period, that were able to cause a widespread lack of confidence in the workings of the entire criminal justice system in the late 1980s and early 1990s. The public awareness that the criminal justice system was convicting innocent victims and then failing to provide the necessary mechanisms for them to overturn their wrongful convictions was something that was deemed to be unacceptable and something that needed to be urgently addressed to restore public confidence. (more…)
This post is part of a short series of blog posts exploring the recent Russian invasion of Ukraine against the background rules of international law. The posts are based on presentations given at an event on the subject on 7 March that was organised by the University of Bristol Law School’s Centre for International Law. In this second blog post of the series, Dr Kathryn Allinson of the School of Law, University of Bristol, considers the possibility of invoking responsibility against Russia for their invasion of Ukraine.
Dr. Kathryn Allinson, University of Bristol Law School
In the early hours of 24 February, President Putin set out his justifications for the use of Russian military force against Ukraine. This was followed by the commencement of aerial strikes across Ukraine and the invasion by ground troops of Ukrainian territory. In this blog, I will explore the role that the international law on state responsibility (as articulated in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)) can play in responding to this conduct by Russia.
by Mark Campbell, Senior Lecturer, Law School
Within English private law (and indeed other common law systems) many legal tests adopt a reasonableness standard. Various aspects of negligence liability are assessed in that way. The same is true in the law of contract: consider, for example, contractual formation and remoteness of damage.
by Judy Laing & Rachel Jenkins
Over the last 20-30 years, the prevalence of eating difficulties has increased to become a widespread experience across the UK and worldwide. Worryingly, levels have risen significantly since the COVID pandemic began in 2020, particularly in children and young people. The Parliamentary Health and Social Care Committee recently examined children and young person’s mental health in England and commented that: (more…)
by Steven Greer, Professor of Human Rights, University of Bristol Law School
Twenty years ago the world witnessed the horrific events of 9/11. A great deal has happened on the counterterrorist front since. For one thing, the term ‘war on terror’, which never had any official traction in the UK anyway, has all but disappeared from the serious debate. Nevertheless, the threat of terrorism, and the struggle against it, persist around the globe. The UK is no stranger to either, at home or abroad. In fact, taking various forms and manifesting in several phases, the British experience has spanned at least a century and a half rather than simply the past two decades. Today, three distinct types of domestic terrorism – dissident Irish republican, far right, and particularly jihadi – predominate. A suite of counterterrorist laws and policies has been deployed to address the challenges they present. (more…)
By Professor Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School)
Preventing, detecting, and sanctioning corruption in public procurement is one of the main goals of all systems of regulation applicable to the expenditure of public funds via contract (see eg Williams-Elegbe, 2012). Despite constant and regularly renewed efforts to fight procurement corruption at an international (such as the UN Convention against Corruption, or the 2016 OECD’s Preventing Corruption in Public Procurement report) and domestic level (see eg the UK’s 2020 ‘Local government procurement: fraud and corruption risk review’), corruption remains a pervasive problem in any given jurisdiction. Of course, there are different forms and degrees of corruption infiltration in different procurement systems but – if any evidence was needed that no system is corruption-free – pandemic-related procurement served as a clear reminder that this is the case (see eg Transparency International, 2021; as well as Good Law Project v Cabinet Office [2021] EWHC 1569 (TCC)). It should then not be surprising that the possibility that artificial intelligence (AI) could ‘change the rules of the game’ (eg Santiso, 2019) and bring procurement corruption to an end is receiving significant attention. In a recent paper*, I critically assess the contribution that AI can make to anti-corruption efforts in the public procurement context and find that, while it could make a positive incremental contribution, it will not transform this area of regulation and, in any case, AI’s potential is significantly constrained by existing data architectures and due process requirements. (more…)
by Robert Craig, University of Bristol Law School
[The introduction to the series can be found here]
This post is written as if addressed to a student who is about to attempt a formative in my subject which is constitutional law.”
Writing legal essays is probably the most important key skill you need to master. Try to structure your answer in a logical manner. Human beings like stories and those of us who mark your formatives and summatives are, contrary to certain vicious rumours put about by second year law students, definitely human. One helpful idea is to imagine you are writing to a senior professor in another subject (e.g., the Head of Bristol Law School, Ken Oliphant, who for some weird reason is not a public lawyer. He is, sadly, a tort lawyer – such a waste of a fine brain). (more…)
by Andrew Charlesworth, Professor of Law, Innovation and Society, University of Bristol
As any local solicitor can tell you, some of the most bitter legal disputes originate from disagreements between neighbours. Whether it’s property boundaries, loud music or parking spaces, what might initially be minor irritations can gradually lead to a full-blown court battle. A relatively recent development in neighbour conflicts are clashes centred on home surveillance products, such as CCTV cameras and smart doorbells. These technologies, which may capture footage beyond the householder’s property, can pit householders against neighbours who feel their homes and private lives are being unfairly spied upon. (more…)