Covid-19 Lockdown: A Response to Professor King

Posted on by lee.mcconnell

By Robert Craig, PhD Candidate and Tutor in Law (University of Bristol Law School)

This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

In two recent posts for the UK Constitutional Law Association (here and here), Professor Jeff King has set out a focused analysis of key elements of the recent Regulations (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8)) that purport to place severe restrictions on the ability of ordinary citizens to leave the place where they are living. (more…)

Vicarious Liability in the Supreme Court: Can we finally say it is no longer on the move?

Posted on by lee.mcconnell

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

In Various Claimants v Catholic Child Welfare Society (CCWS) [2012] UKSC 56, Lord Phillips famously stated that “The law of vicarious liability is on the move.”  This leading case also made it clear that two elements have to be shown before one person can be made vicariously liable for the torts committed by another:

  1. a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other; and
  2. a connection between that relationship and the tortfeasor’s wrongdoing.

Later cases such as Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire CC [2017] UKSC 60  have shown that the relationship, while primarily that of employer and employee, can extend to relationships akin to employment, including the relationship between a priest and his bishop[1] and a local authority and the foster parents to whom it entrusts children in care.  The Supreme Court in Mohamud v Wm Morrison Supermarkets Plc [2016] UKSC 11 also broadened the “connection” test to impose vicarious liability for torts which were connected to the field of activities of the employee, and where there was a sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable. (more…)

Procurement in the time of COVID-19

Posted on by lee.mcconnell

By Prof Albert Sanchez-Graells, Professor of Economic Law and Co-Director of the Centre for Global Law and Innovation (University of Bristol Law School).

Public procurement is at the forefront of the response to the challenges of COVID-19. Only well-equipped hospitals can save patients’ lives without endangering those of the medical, nursing and support workers in the NHS. Shortages of relatively simple consumables such as personal protection equipment (PPE), but also cleaning and hygiene products, can endanger lives and have devastating effects on the resilience of the healthcare system to (continue to) cope with the pandemic. Shortages of essential equipment such as ventilators can have even more direct nefarious impacts on individual lives.

The importance of public procurement and supply chain management has rarely been so prominently in the public eye and political debate—except, perhaps, in the case of notorious procurement scandals, such as the recent Brexit-related #ferrygate. In this blog post, I reflect on some of the emerging issues in the procurement response to COVID-19 and on the perhaps even bigger challenges that will follow, from a regulatory perspective. (more…)

Beyond liberty: social values and public health ethics in responses to COVID-19

Posted on by lee.mcconnell

By Prof John Coggon, Professor of Law (University of Bristol Law School)

Legal and policy responses to COVID-19 rest on and express the balance of different basic values and principles. Earlier and current regulatory approaches bring into sharp relief how liberty must be understood and weighed against other values. This is for the sake of liberty itself, but crucially too for other compelling aspects of social justice.

Emergency powers and pandemic ethics

COVID-19 is a global problem, albeit one that governments across the world have been approaching differently. Over the past weeks we have seen fast changes in policies as different countries have sought to anticipate and respond to the extraordinary scale of the challenges that we face and which lie ahead. (more…)

COVID19 and the Future of Work

Posted on by lee.mcconnell

By Dr Katie Bales, Lecturer in Law (University of Bristol Law School)

The current COVID19 crisis has shone a light on the world of work by interrupting the supply and demand necessary for global capitalism to function. In the UK context, it has drawn attention to the inadequacies of our current employment rights framework; the ways in which certain types of work is insecure and de-valued;  the racialised, gendered and classed boundaries of some ‘front-line’ jobs; the vast power disparities between employers and employees; and called into question the necessity of office work, or indeed a 5 day working week.

Perhaps then this period of reflection might open up new perspectives and ideas amongst the public which could radically transform the future world of work, pushing forwards positive change which forefronts worker protection, adequate remuneration, recognition, work-life balance and interests outside of traditional ‘work’ under industrial capitalism. Below, I outline some of the areas in which these changes should take place. (more…)

A Legal Landmark in Reproductive Rights: The Abortion (Northern Ireland) Regulations 2020

Posted on by lee.mcconnell

By Dr Sheelagh McGuinness, Reader in Law and Dr Jane Rooney, Lecturer in Law (University of Bristol Law School)

On 31st March, 2020, The Abortion (Northern Ireland) Regulations 2020 came into force. This is a landmark in reproductive rights in Northern Ireland. Many were sceptical as to whether this day would ever arrive. The regulations represent the culmination of decades of activism across civil society, grassroots and medical organizations, legal representatives, and political actors. They constitute a huge step forward in the protection of the reproductive health of women. However, the scope of protection afforded will depend on how they are interpreted and implemented. In this blog we give an overview of the regulations and highlight some areas of on-going concern. (more…)

Teaching IEL as a Nigerian Teacher in the Era of Decolonisation (IEL Collective Symposium II)

Posted on by lee.mcconnell

By Suzzie Onyeka Oyakhire, Lecturer, Faculty of Law, (University of Benin, Nigeria; suzzie.oyakhire@uniben.edu)

This piece reflects on the teaching of International Economic Law (IEL) in Nigeria specifically within the legal education curriculum of undergraduate studies. It considers the status of IEL as a course of study and considers some epistemological challenges encountered in teaching IEL, including the content to be covered within the curriculum.

The studying and teaching of IEL in Nigeria is largely undeveloped. This is because within the legal curriculum of undergraduate studies, IEL is not prioritised in the research agenda and teaching within the Faculties of Law. For several years IEL was excluded as a course of study in Nigerian universities and, where it is taught, it is relegated to the status of an optional course. Consequently, over the years, several lawyers have graduated without any significant exposure to IEL. Often, the earliest exposure with IEL occurs during postgraduate studies overseas in which the knowledge and understanding of IEL is influenced by the perspectives of their teachers, usually teaching from, or at least influenced by a Eurocentric position. (more…)

‘Doing and knowing’ IEL through the lens of Caribbean Rastafari philosophy (IEL Collective Symposium II)

Posted on by lee.mcconnell

By Yentyl Williams, PhD Candidate (Bristol University Law School)

Third World Approaches to International Law (TWAIL) scholarship over the past 21 years has innovated how we know and do international law. Yet, I argue that TWAIL scholarship can better connect to the Caribbean in general, and the Rastafari, maroon and indigenous knowledges/epistemologies and being/ontologies. Indeed, despite the growth in TWAIL scholarship, neither Westlaw nor HeinOnline contain any entries that refer to Rastafari philosophy. This, I argue, is a missed opportunity or a shortcoming, given the intellectual convergences of TWAIL and Rastafari philosophy. There are epistemological and ontological convergences of TWAIL and Rastafari scholars and activists across, at least, six concepts of Rastafari philosophy: Babylon, ‘poly-tricks’, ‘fire’, ‘livity’, ‘know thyself’ and ‘I-an-I’. (more…)

A Neo-Gramscian Analysis of the Neoliberal Discourse of the WTO Judge (IEL Collective Symposium II)

Posted on by lee.mcconnell

By Dr Edoardo Stoppioni, Senior Research Fellow (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law).

This post aims at using the work of Gramsci to analyse the hegemonic structures of the discourse of the WTO judge and to disentangle its relation to the neoliberal structural bias of its normative space. The objective is to transpose to international economic law the critical lenses that neo-Gramscian scholars, like Robert Cox, used in international relations. A neo-Gramscian approach focuses on the « material structure of ideology », in order to show how certain norms and practices emerge in a certain context and what is their emancipatory potential concerning a given legal order. By so doing, Cox enlarged the notion of hegemony to include those institutional practices of internalization of a certain ideology and the way they project it externally.

Critical doctrines on international law’s “fragmentation” have demonstrated that certain jurisdictions are capable of exercising hegemonic power in the international legal sphere and that a link should be established in that regard with the peculiar bias of economic jurisdictions, such as the WTO judge and the investment arbitrator. The WTO judge is a perfect example thereof (“judge” as, en passant, I find the judicial nature of the mechanism largely demonstrated and recently reaffirmed). As I previously theorized using Gramscian concepts, its discourse constantly oscillates between two poles. The first pole is the one of “prestige” or hegemony via expansion: the judge uses a language of dissemination; it exercises pedagogy to make its own idiom (the language of trade values) the dominating form of legal expression. The second pole is the one of “economism”, or of hegemony via isolation. The judge prefers using a discourse of self-containment to make its power uncontested. It refuses to listen to a foreign language not to put into danger its domination over its own normative regime. (more…)

The Coronavirus Crisis: Compassionate Leadership is Relevant Now More than Ever

Posted on by lee.mcconnell

By Prof Charlotte Villiers, Professor of Company Law and Corporate Governance (University of Bristol Law School)

The world is now in almost complete lockdown as this Covid-19 public health crisis has reached its ‘boom’ stage[1] for many countries. People are frightened for the health of themselves and their loved ones and the financial security of huge numbers of workers is at risk. In the UK, the front-line workers with the task of treating the sick and caring for them are the care professionals, clinicians and nurses in the NHS. One of the key words that guides the NHS and is embedded within its constitution is ‘compassion’.  Principle 3 states that: ‘Respect, dignity, compassion and care should be at the core of how patients and staff are treated not only because that is the right thing to do but because patient safety, experience and outcomes are all improved when staff are valued, empowered and supported.’ In its Values section, the constitution adds: ‘compassion is central to the care we provide and respond with humanity and kindness to each person’s pain, distress, anxiety or need. We search for the things we can do, however small, to give comfort and relieve suffering. We find time for patients, their families and carers, as well as those we work alongside. We do not wait to be asked, because we care.’

It was notable that in recent announcements from our new Chancellor, Rishi Sunak, and Scotland’s First Minister, Nicola Sturgeon, both expressed the need for compassion. Rishi Sunak said: ‘Now more than at any time in our history we will be judged by our capacity for compassion. Our ability to come through this won’t just be down to what government or businesses do but the individual acts of kindness that we show each other.’[2] Nicola Sturgeon also said ‘This crisis is reminding us just how fragile our world is. But it is also reminding us what really matters – health, love, solidarity. With compassion and kindness – and with the dedication and expertise of our NHS – we can and we will get through this.’[3] These speeches indicate that our political leaders recognise that compassion is a necessary response to the crisis that we must confront, collectively, as human beings. (more…)