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…)
In July 2018, the University of Bristol awarded a Doctorate of Law honoris causa to Professor Bryan Stevenson.
Dr Devyani Prabhat had the honour of writing and delivering the Oration for Professor Stevenson. In her Oration, Dr Prabhat stresses the incredible and inspiring work of Professor Stevenson, and in particular his Equal Justice Initiative. Professor Stevenson delivered a very inspiring speech where he fleshed out his view of the ways in which recent law graduates, and all lawyers more generally, can make a meaningful contribution towards social justice. Prof Stevenson’s speech is available online. His acclaimed book Just Mercy: A Story of Justice and Redemptionalso offers gripping and extremely thought-provoking insights.
The full text of Dr Prabhat’s oration is now reproduced here as a token of the values that the University of Bristol Law School, as a community, strives to foster.(more…)
Mills v Mills  UKSC 38 is an example of a rare ‘everyday’ financial remedies case on divorce that has been decided at the highest appellate level – the Supreme Court. It was handed down in the middle of July. Costs, time, energy and a host of other factors involved in taking a case to an adjudicated final hearing, mean that over 90% of financial remedies cases settle before reaching this stage (Family Court Statistics Quarterly, January – March 2018) and it is only a tiny minority that end up being appealed, let alone appealed to the highest level. That one of those rare appellate cases is an ‘everyday’ case where the assets and finances involved are pretty ordinary, is particularly note-worthy. The usual wealthy entrepreneurs or celebrities are absent, and instead, the Mills case involves a couple, who on divorce in 2002, agreed a capital settlement of £230,000 to the wife, £23,000 to the husband, and ongoing monthly spousal periodical payments of £1,100 a month from the husband to the wife. This is not a case about millionaires or billionaires, but an ‘everyday’ couple, where the financial needs of the parties dominate.
Guidance provided from the higher courts has, to date, focused on the larger-money case and the associated issues relevant to those wealthy individuals who can afford to litigate on issues such as the nature of their ‘special contribution’ and whether this should result in an unequal division of the family assets due to one spouse’s exceptional skill or acumen in the business or entrepreneurial world. It was therefore to be hoped that the Supreme Court would seize this rare opportunity and provide some much-needed broader guidance for family lawyers on ‘needs-based’ cases – the usual ‘run-of-the mill’ case, which although does not usually make headlines, takes up the vast majority of Family Court financial remedy business up and down the country. (more…)
In 2016, the EU adopted the Web Accessibility Directive to foster better access to the websites and mobile applications underpinning public services – in particular by people with disabilities, and especially persons with vision or hearing impairments. This Directive is meant to complement the European Accessibility Act and to implement the EU’s commitments under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Article 9 UNCRPD requires the adoption of appropriate measures to ensure equal access to information and communication technologies, including the Internet, for persons with disabilities. Under the Web Accessibility Directive, this translates into an obligation for public sector bodies to ensure that their websites and apps comply with a 2014 EU standard adapted to the latest Web Content Accessibility Guidelines (WCAG) at level AA (currently WCAG 2.0).
The Web Accessibility Directive must be transposed into UK law by 23 September 2018 and will generate obligations for new websites from 2019, for pre-existing websites from 2020, and for all public sector apps from 2021. The UK Government is currently analysing the responses to a public consultation on the draft Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations 2018 (the Web Accessibility Regulations), and the Government Digital Service is developing a host of initiatives to roll-out accessibility policies throughout the public sector. This blog post explains that UK Universities and further education institutions are covered by the Web Accessibility Directive. They must be clearly placed under the scope of application of the future Web Accessibility Regulationsand be supported by the Government Digital Service and the Department for Education to ensure that their websites and apps comply with the relevant accessibility standards as soon as possible. This is not only legally mandated, but also essential to the public service mission of universities and other educational institutions. (more…)
In the light of the resignations of David Davis and Boris Johnson, it is time to reexamine the state of play in the Brexit negotiations. In this post, I seek to identify the various possible outcomes, and to provide some comments on the political ramifications of each.
The list of possible outcomes is almost as long as it was in March 2017, when Article 50 was triggered. That in itself is a cause of huge concern. What is also worrying, is that there does not appear to be a clear path to any of the possible outcomes. (more…)
On Thursday 28 June the Bristol Centre for Law at Work was launched. The Centre is based in the Law School, with Professors Alan Bogg and Tonia Novitz its founding Directors. It is supported by scholars from across the Law School who will come together to reflect upon legal issues relating to work and its regulation. Adopting an inter-disciplinary approach, the Centre aims to advance scholarly analysis of work-related issues, and to generate innovative perspectives. In so doing, it aims to shape policy at national, transnational and international levels using evidence-based interventions to influence current political debates. Centre members have already made high profile contributions to the recent Taylor Review of modern working practices.
A very successful launch of the Centre was held at the close of the first day of Professor Alan Bogg and Dr Jennifer Collins’ workshop, Criminality at Work. Professor Mark Freedland, opening the Centre, commented on Bristol’s global reputation in work-related legal scholarship. He was also deeply impressed by the excitement and enthusiasm across the University for the objectives and activities of the Centre for Law at Work. Professor Paddy Ireland, Dean of the Faculty of Social Sciences and Law, commented that the Law School has attracted fantastic interdisciplinary scholars who will contribute to the work of the Centre. The Centre will build links across the wider Faculty, based around the Faculty Research Group on Work. It will also connect with a global network of academic centres through its formal affiliation with the Labour Law Research Network. (more…)
Earlier this year, the Government fulfilled one of its General Election Manifesto commitments by appointing Sara Khan as the first chair of a new Commission for Countering Extremism. The Commission’s task is not an enviable one, since if not exactly an admission of failure, its establishment represents at least a significant pause for thought. Its job will be to support society in countering extremism and to advise the Government on new policies and powers. We have some idea of what it aspires to achieve, and how it will work, but as yet no concrete proposals have emerged.
The creation of the Commission is the latest stage in a fairly rapid process of policy development. In its current guise, the idea of countering extremism first emerged in the 2011 version of Prevent, the counter-terrorism strategy. Extremism was defined there as ‘vocal or active opposition to fundamental British values including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs’. It was identified as a problem because, it was claimed, extremist ideologies can lead to terrorism – the use or threat of serious violence or other damaging attacks on the public to advance a political, religious, racial or ideological cause. However, at that point the only thing the Government suggested should be done about it was ‘challenge’ – in other words the use of informal social and political pressure to reinforce liberal values in the face of illiberal ones.
In October 2015 – after the ending of the Conservative/Liberal Democrat Coalition – the Government’s counter-terrorism policy took another turn. A new counter-extremism strategy identified extremism as a harm in its own right, requiring new legal responses and new Government powers. Ever since, the Government has been trying to work out what these should be. (more…)
On 20 June 2018 the US announced that it was leaving the United Nations Human Rights Council (UNHRC) because it was ‘a cesspool of political bias’ particularly against Israel. Although this decision has been condemned by human rights activists and NGOs around the world, and/or ‘regretted’ by other western states, sadly, the claims upon which it is ostensibly based are not without foundation.
The protection of human rights is one of the UN’s key objectives and a formal element in all its activities. But, since 2006, the UNHRC has been particularly entrusted with this task. The final nail in the coffin of its discredited predecessor, the UN Commission on Human Rights, was the election of Libya as chair in 2003. Composed of officials from 47 UN member states, the UNHRC is elected on a secret ballot by simple majority of the UN General Assembly (UNGA). Thirteen seats are set aside for African states, thirteen for Asian, eight for Latin American and Caribbean countries, six for Eastern Europe, and seven for Western Europe and the rest. Any member state of the UN, irrespective of its own human rights record, is eligible to stand. The UN requires states, when casting their votes, to take the contribution of candidates to the promotion and protection of human rights into account, and the vast majority of those seeking election make written pledges and commitments to this effect. But it is widely believed that diplomats horse trade with each other about who to vote for, with the usual back room deals and political partisanship this entails. (more…)
It is a truism that, although the ultimate purpose of an arbitration is the rendering of an award which definitively determines the disputes that were referred by the parties to arbitration, in practice, the making of the final award may well not be the end of the road. This truism is graphically illustrated by the events following an arbitration conducted around ten years ago under the auspices of the Singapore International Arbitration Centre (SIAC); the dispute had arisen out of a failed joint venture between two groups of companies, a Malaysian media group (Astro), and various companies, including First Media (FM), which were part of an Indonesian conglomerate known as Lippo. During the arbitration, in which the Astro companies were the claimants, the tribunal made a number of awards; in 2010, the arbitration culminated in a final award of US$250 million in the claimants’ favour. Since then, the Astro companies have been trying to enforce the awards through the courts against FM (and others), most notably in Singapore and Hong Kong. Following decisions by the Singapore Court of Appeal (PT First Media TBK v Astro Nusantara International BV  SGCA 57) and, more recently, by Hong Kong’s Court of Final Appeal (Astro Nusantara International BV v PT Ayunda Prima Mitra  HKCFA 12), those attempts now appear to have failed.
In terms of the substance, the case seems, at first glance, to be a relatively simple one. The problems were, to a large extent, procedural and those problems were exacerbated by the fact that the courts of two jurisdictions were required to address the same – or very similar – questions. In total, there were five judicial decisions – two in Singapore – High Court (SGHC) and Court of Appeal (SGCA) – and three in Hong Kong – Court of First Instance (HKCFI), Court of Appeal (HKCA) and Court of Final Appeal (HKCFA). In both jurisdictions, Astro’s application to enforce the awards succeeded at first instance; it was only at the highest level in each jurisdiction that FM prevailed. This blog is divided into six substantive sections; after a brief consideration of the arbitration (I), the most significant features of each of the five court decisions are analysed (II-VI). Some of the lessons that can be learned from the whole saga are summarised in the Conclusion. (more…)