Counter-terrorism was ignored in the UK general election – it must not be forgotten in 2020

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)

The killing of the Iranian military strategist Qasem Soleimani at the start of 2020 may not have much, if any, direct effect on terrorism in the UK. But it was always unlikely that threats from jihadis, dissident Irish republicans and the far right would decline significantly as the new decade unfolds. Dealing with these threats must remain a top political priority.

And yet, in spite of the horrific incident in London on 29 November, counter-terrorism did not feature prominently in the campaign for the UK’s 2019 general election, two weeks later. Indeed, neither of the two main parties had much to say about it. (more…)

A Governance Revolution or Costly Distraction? Reassessing the promises of blockchain for public procurement governance

By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School).

Blockchain or, more generally, decentralised ledger technologies (DLTs), are capturing the attention of policymakers. ‘Blockchain’ has become shorthand to refer to technology usually identified with the properties of a decentralised, trustless and immutable (or at least, tamper-proof) mechanism for information verification and recording that can enable self-executing digital transactions between anonymous parties (‘smart contracts’).

Blockchain’s touted tamper-proofness and potential to enable smart contracts are driving initiatives that seek to create automated ‘trust in trustless environments’ for public sector use cases, in particular concerning activities highly-exposed to corruption risks and/or the automation of administrative procedures devoid of discretion.

There are high economic stakes at play in public procurement—which represents around 12% of GDP and over a third of public expenditure in OECD countries, and even higher proportions in other economies. Coupled with the growing (over)reliance of policymakers on business consultants, the hype around blockchain—and, more generally, about public procurement 4.0—is perhaps particularly intense in this field of GovTech and RegTech.

Some legal scholars are rather optimistically jumping on the ‘disruptive technologies bandwagon’ and identifying blockchain as a main tool to increase the probity and efficiency of procurement governance at a national level.1 Some officially-backed ‘visions for the future’ go as far as promising blockchain-supported global e-procurement platforms capable of covering the entirety of procurement transactions carried out worldwide.

This is creating a set of expectations about how blockchain will revolutionise public procurement governance that does not translate into real action. Even further, I submit, blockchain is and will remain structurally inapt to generate such a governance revolution, for several reasons. (more…)

Deradicalization and the London Bridge attack of 29 November 2019

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)

Two central questions are raised by the horrific knife attack by Usman Khan upon some of those attending a criminal rehabilitation workshop at Fishmonger’s Hall, London Bridge on 29 November: how, if at all, could it have been prevented? And how, if at all, could other similar incidents be averted? While there are, regrettably, no entirely reassuring answers to either question, there are, nevertheless, ones we must be content to live with.

Khan, from Stoke-on-Trent, joined the jihadist movement al-Muhajiroun in 2006 at the age of 15 and was arrested for terrorism in 2010. Two years later he was convicted with several others, of involvement in planning to establish terrorist training camps in Pakistan, and conspiracies to attack several London targets, including the Stock Exchange, the US Embassy, and the home of the then Mayor, Boris Johnson. He was sentenced to an indeterminate term of imprisonment with a recommendation that he spend at least eight years behind bars. This was, however, altered on appeal to a fixed term of 18 years with the standard entitlement to automatic release after half the sentence had been served. Khan is said to have been a model prisoner. By contrast with the majority of his terrorist peers, he willingly cooperated with the available opportunities for deradicalization and rehabilitation. But it is not entirely clear what precisely these involved. It has also been reported that he applied to join a more intensive programme but was unsuccessful. The reasons have not yet been fully disclosed. But it is said that there is a long waiting list. (more…)

Mental disability and voting rights: Bridging the knowledge and uptake gap

By Prof Judy Laing, Professor of Mental Health law, Rights and Policy (University of Bristol Law School)

As the general election approaches and you consider whether to use your vote, spare a thought for the thousands of people who are detained in psychiatric hospitals or living in residential care/nursing homes, and who may not even realise that they are entitled to vote, or be given the opportunity to do so.

Government statistics suggest that there were 21,439 people reported as being subject to compulsory detention under the Mental Health Act 1983 on 31st March 2018, and over three quarters of these people were being detained in hospital in England.[1] The majority of these detained patients have the same right to vote as the general population, but they are one of the most disenfranchised groups in society.  Surveys have found that psychiatric in-patient uptake and knowledge of voting rights is generally poor. For example, a study on the general election in 2010 found that eligible psychiatric in-patients were half as likely to register as the general population; half as likely to vote if registered, and patients who had been in hospital for longer periods were particularly affected.[2] Moreover, research also suggests that knowledge of patients’ voting rights amongst mental health professionals could be improved.[3] (more…)

Sound Scholarship

By Dr Chathuni Jayathilaka and Prof Gwen Seabourne, Centre for Law and Historical Research (University of Bristol Law School)

Although based in England, the Law School is home to experts on a variety of different jurisdictions – for example, Dr Chathuni Jayathilaka, who teaches contract, commercial comparative and Roman law is a specialist on Scots private law and Scots Legal History. She has recently published a monograph entitled Sale and the Implied Warranty of Soundness and here, she explains it to Gwen Seabourne of the Centre for Law and History Research.

GS: So, Chathuni, tell us about your new book (with translation for common lawyers!). It’s about a topic in Scots private law, isn’t it?

CJ: Yes. Sale and the Implied Warranty of Soundness deals with an under-researched area of Scots law: the common law contract of sale. This contract, which still regulates transactions featuring real property (i.e. land) and intangible property, has been subjected to little analysis in the past two centuries. The last book on this topic, Mungo Brown’s A Treatise on the Law of Sale, was published almost 200 years ago, in 1821.

As a result, there are a number of gaps in knowledge in this area. One of the major issues is that the default rules which apply under the Scots common law contract of sale have never been coherently systematised. Another is that it is not clear whether the same default rules applied to all contracts of sale, regardless of whether the property involved was real, personal or intangible. Historically, a number of the default rules developed exclusively through case law featuring one type of property, and there is disagreement about whether such rules apply to transactions featuring other types of property. (more…)

Abortion Law Reform in Northern Ireland

By Dr Sheelagh McGuinness, Reader in Law (University of Bristol Law School) & Professor Sir Jonathan Montgomery, Professor of Healthcare Law (UCL Laws).

Credit: Rossographer

October 22nd 2019 marked a momentous day for those who have advocated for decades for liberalisation of Northern Ireland’s restrictive abortion laws.[1] Following the implementation of Section 9 of the Northern Ireland Executive Formation Act 2019, abortion up until 24 weeks gestation is decriminalised. In addition to this, an obligation has been placed on the Secretary of State for Northern Ireland to ensure that adequate regulations are in place by the end of March 2020 to ensure a human rights compliant framework for provision of abortion care.

This is the first of a two-part blog. Here we focus on what decriminalisation of abortion means for regulation of abortion in Northern Ireland.[2] In the next part we will provide an account of what the content of human rights compliant abortion regulations should be. (more…)

Abortion in Northern Ireland: The Ewart Judicial Review Judgment

By Dr. Jane Rooney, Lecturer in Law (University of Bristol Law School)

NB: Abortion law in Northern Ireland is set to change on 22nd October 2019 if the suspended Northern Irish Assembly continues to not function on or after 21st October. This blog post contextualises and recognises the continued relevance of judicial review proceedings challenging the prohibition on abortion in Northern Ireland in cases of fatal foetal abnormality within a dynamic, multi-layered legal, political and social context.

On 3rd October 2019, the High Court of Justice in Northern Ireland decided that Northern Irish abortion law was incompatible with the Human Rights Act 1998 (HRA) insofar as it prohibited abortion in cases of fatal foetal abnormality (FFA). Justice Keegan decided to refrain from pronouncing on the remedy before hearing further submissions by the parties involved: she delayed the decision over whether to make a declaration of incompatibility (DOI) pending further submissions.[1]  This judicial review case follows a momentous year in activism, litigation, and legislative reform on abortion in Northern Ireland. The following provides context to the judgment, and a summary of the key reasoning employed. It then focuses on the DOI point which is yet to be concluded. A DOI should be made for two primary reasons. First, this remedy is warranted in the circumstances of the prohibition on abortion in cases of FFA. It can be distinguished from Nicklinson which introduced the idea that a DOI need not be made despite finding an incompatibility. Second, to proceed with refusing a DOI despite finding an incompatibility, and normalising Nicklinson, would have broader consequences for the human rights protection system in the UK. (more…)

AI & sustainable procurement: the public sector should first learn what it already owns

By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School).

Photo credit: Flickr

While carrying out research on the impact of digital technologies for public procurement governance, I have realised that the deployment of artificial intelligence to promote sustainability through public procurement holds some promise. There are many ways in which machine learning can contribute to enhance procurement sustainability.

For example, new analytics applied to open transport data can significantly improve procurement planning to support more sustainable urban mobility strategies, as well as the emergence of new models for the procurement of mobility as a service (MaaS).* Machine learning can also be used to improve the logistics of public sector supply chains, as well as unlock new models of public ownership of eg cars. It can also support public buyers in identifying the green or sustainable public procurement criteria that will deliver the biggest improvements measured against any chosen key performance indicator, such as CO2 footprint, as well as support the development of robust methodologies for life-cycle costing.

However, it is also evident that artificial intelligence can only be effectively deployed where the public sector has an adequate data architecture.** While advances in electronic procurement and digital contract registers are capable of generating that data architecture for the future, there is a significant problem concerning the digitalisation of information on the outcomes of past procurement exercises and the current stock of assets owned and used by the public sector. In this blog, I want to raise awareness about this gap in public sector information and to advocate for the public sector to invest in learning what it already owns as a potential major contribution to sustainability in procurement, in particular given the catalyst effect this could have for a more circular procurement economy. (more…)

Brexit and counter terrorism in the UK

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)

Speculation about the consequences of Brexit for the UK has, not surprisingly, focused much more upon the economy, trade, migration, and self-governance than upon countering terrorism. While the most important contribution to the latter lies, in any case, with states themselves, the UK’s departure from the EU will, nevertheless, have counter terrorist implications. The two principal ones are likely to concern the effects upon the UK of its disconnection from the EU’s relevant policy frameworks, data bases and networks, and the galvanising effect a ‘hard’ border, ie one with physical impediments between Northern Ireland and the Republic of Ireland, may have upon dissident armed Irish republicanism with the risks this could pose for the peace process in Northern Ireland.

In order to assess these issues more fully, three core questions need to be addressed: what kind of counter terrorist relationship did the UK have with the EU before Brexit? How might this be affected by Brexit? And what kind of alternative arrangements, if any, might be provided afterwards? (more…)

In Good Order: Deaths, Disputes and Default Rules

By Dr Joanna McCunn, Lecturer in Law (University of Bristol Law School) and Dr Andrew J Bell, Research Assistant (Institute for European Tort Law of the Austrian Academy of Sciences and University of Graz, Vienna).

Shipwrecks were a common cause of commorientes cases.

The ‘extraordinary’ recent case of Scarle v Scarle[1] has brought national press attention to a property law rule dating from 1925. Though little-known and seemingly bizarre in application, the rule stands atop millennia of legal thinking and is a useful and pragmatic tool for solving this instance of an unusually challenging evidential problem. This problem, of intractable uncertainty, occurs across the legal system, and the various rules used to address it can have surprisingly extensive policy benefits.

Scarle v Scarle

John and Ann Scarle were discovered dead at their home, having both succumbed to hypothermia under mysterious circumstances. It became vital to know which of the two had died first. If Ann had outlived her husband, she would have inherited the whole of their jointly owned property; if Ann had died first, it would have passed to John. Dispute arose because each of the spouses was to be succeeded by a daughter from a previous relationship; each daughter thus stood to inherit all or nothing from her parent.

The dispute coalesced around a presumption known as the ‘commorientes rule’. Found in section 184 of the Law of Property Act 1925, this provides that, where it is uncertain which of two or more persons has outlived the other(s), a younger person is deemed to have survived an elder.[2] While the rule itself is clear, it has been unclear what kind of ‘uncertainty’ is required for the rule to apply. Does a sequence of deaths have to be proven beyond reasonable doubt to avoid the presumption (the criminal law standard), or only on the balance of probabilities (the civil standard)?

HHJ Kramer decided that the ordinary civil standard applied: the commorientes rule is only engaged when it cannot be proven on the balance of probabilities (i.e. >50% probability) which person survived longer. In Scarle, however, even that hurdle was not met. The evidence as to the order of deaths was too equivocal and section 184 therefore kicked in: Ann Scarle was younger than, and so taken to have outlived, her husband. Her daughter inherited everything. (more…)