Abortion in Northern Ireland: The Ewart Judicial Review Judgment

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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

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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

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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

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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…)

Know Your Enemy: Racism and Islamophobia

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

According to a recent report by a cross-party group of MPs, ‘Islamophobia is rooted in racism and is a type of racism that targets expressions of Muslimness or perceived Muslimness’. This definition has, however, been rejected by the government and criticised by others[1] not least on the grounds that, although Islamophobia coincides with racism in certain contexts, this is not always the case. Understanding the differences and similarities between various kinds of social prejudice is important not only for intellectual reasons, but also because a lack of clarity may militate against tackling them effectively.

In the popular sense, ‘race’/‘ethnicity’ involves shared physical identity (particularly skin colour and facial features), plus assumptions about kinship and origins more often imagined than real. Standard components of ‘racism’, typically based on myth, caricature and stereotype, generally include the belief that races possess distinct and inherent characteristics including social practices, the sense that one’s own race is superior to most if not all others, and express or implicit prejudice against people of races apart from one’s own.

‘Islamophobia’ generally refers to irrational antagonism towards Islam and/or Muslims also typically based on myth, caricature and misleading stereotype. Strictly speaking, a ‘phobia’ is a clinically observable anxiety disorder defined by recurrent and excessive fear of an object or situation. The term has, however, been extended to include individual and collective hostility towards minorities such as homosexuals (homophobia), foreigners (xenophobia) and Islam/Muslims (Islamophobia).

Racial and anti-Muslim discrimination can clearly overlap, particularly in England and Wales where over 90% of Muslims are non-white. (more…)

Big divergences in procurement transparency across the EU – even under the new Open Data Directive

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By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School), Dr Kirsi-Maria Halonen, Senior Lecturer in Law (University of Lapland, Finland), Prof Roberto Caranta, Professor of Administrative Law (Turin University, Italy)

Together with competition and integrity, transparency is one of the fundamental pillars of every procurement system around the world. Much of the efforts to ensure probity in the expenditure of public funds through procurement concentrate on mandating competition-enabling transparency of contract opportunities and accountability-facilitating transparency of the outcome of procurement processes. In the European Union, the 2014 Public Procurement Package continued to place the principle of transparency amongst its general principles and established rather detailed disclosure obligations, including the mandatory publication of a wider range of electronic notices (including for contractual modifications), a consolidation of the tenderers’ rights to access information about the procurement process, and higher standards for documentation and record-keeping by the contracting authorities.

More generally, the push for the development and adoption of open data standards for public procurement—in particular by the Open Contracting Partnership—has renewed efforts to bring procurement under the open government umbrella and to facilitate higher levels of transparency and accountability, in particular through big data analysis. In the European Union, the Commission highlighted the importance of procurement transparency in its 2017 Communication on ‘Making procurement work in and for Europe’, stressing that ‘The digital transformation, the growing wealth of data in general and the availability of open data standards offer opportunities to create better analytics for needs-driven policy-making and warning systems to signal and tackle corruption in public procurement’. The Commission thus established the goal of increasing transparency, integrity and better data as one of its six key strategic priorities. In particular, the Commission advocated the creation of national public contract registers by the Member States, providing transparency on awarded contracts and their amendments to enable dialogue with civil society and hold governments more accountable. (more…)

Britain’s unaccompanied migrant children should be supported, not abandoned

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By Dr Devyani Prabhat, Reader in Law (University of Bristol Law School)

Photo from Flickr

Unaccompanied asylum-seeking children often get short term leave to remain in the UK for only 30 months or until they turn 17-and-a-half, whichever is the shorter period of time. While they may get extensions at the end of such periods often they simply get removed from the country. Thus, age 18 is a time of heightened uncertainty and fear for these children.

In April this year, the Independent reported that hundreds of asylum-seeking children were removed to disturbed regions which the UK government deems too dangerous to visit, such as Afghanistan, Iraq, Somalia and Sudan. A year back, the Guardian covered a number of suicides by young people who had taken their own lives after years of negotiating the asylum system.

These young people committed suicide around age 18. Instead of the age of majority, it was the time of deepest despair for them.   (more…)

Is freedom of expression in academia under threat from academics themselves?

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

Freedom of expression has long been extolled by those who love freedom generally. For example, attempting to capture Voltaire’s commitment to it, historian Evelyn Beatrice Hall coined the famous phrase, wrongly attributed to the French philosophe himself – ‘I disapprove of what you say but will defend to the death your right to say it’. George Orwell also once memorably quipped: ‘If liberty means anything at all, it means the right to tell people things they don’t want to hear’. And, according to the European Court of Human Rights, this includes offending, shocking and disturbing.[1]

Spats, fall-outs, intellectual and personal feuds, have, of course, been commonplace amongst scholars since antiquity. And before the institutionalisation of the right to free speech in the west, the consequences could be much more serious than ruffled feathers. In the 16th century, for example, questioning the Catholic doctrine of transubstantiation – that the wine and wafers used in the Mass miraculously turn into the physical body of Christ upon consumption – could result in being burned at the stake as a heretic. In the centuries since, the west has become accustomed to vigorous, legally-protected, yet not always even-tempered academic debates. For example, arguably making a bid for the most disrespectful scholarly put-down on record, nineteenth century German philosopher, Arthur Schopenhauer, denounced his much more famous and influential contemporary, Hegel, as a ‘flat-headed, insipid, nauseating, illiterate charlatan’. (more…)

Brexit and LGBT+ Rights

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By Dr. Peter Dunne, Lecturer in Law (University of Bristol Law School)

On 6 July, groups and individuals from around the United Kingdom gathered to mark the annual LGBT+ Pride (‘Pride’) festivities in London. An estimated 1.5 million people filled the streets of the nation’s capital – proudly expressing their identity, supporting friends and family, or merely enjoying what has become one of the largest and most popular public celebrations across the country. In 2019, Pride events (both at home and abroad) have a particular significance – coming fifty years after the famous ‘Stonewall Inn Riots’ in New York City, which are often cited as a key moment for developing sexual orientation and gender identity (‘SOGI’) rights in the United States.

In the UK, Pride is a time to both celebrate recent advances and to highlight the many, complex challenges which LGBT+ communities still confront. The limited efficacy of non-discrimination frameworks, deficiencies within LGBT+ asylum processes and on-going controversy surrounding the Gender Recognition Act 2004 are just three (among many) challenges which impede full SOGI-related equality within this jurisdiction. Yet, despite the pressing needs of LGBT+ populations in the UK (as emphasised by the National LGBT Survey), issues relating to sexual orientation and gender identity have – like many other important political concerns – been largely drowned out by the all-consuming Brexit debates.

At the London Parade festivities last Saturday, representatives of most of the UK’s main political parties were present – publicly reaffirming their commitment to LGBT+ rights. However, it has been striking to observe the extent to which LGBT+ populations (and the potential impact of leaving the European Union upon their lives) have been absent from Brexit conversations. (more…)

Conclusions from the Workshop on Labour Behind the Food System

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On June 14th 2019, a group of academics, union representatives, civil society organisers, and members of food-related NGOs and think tanks gathered in Bristol along with the United Nations Special Rapporteur on the Right to Food, Professor Hilal Elver. The intention was to look closely at the condition of work and workers behind the UK food system. Throughout the day, we shared testimonies, experiences and accounts concerning the main challenges and obstacles faced by workers from farm to fork, including beyond the boundaries of the United Kingdom. We discussed trafficking, modern slavery, low wages, availability, technological innovation, migration, and several other issues that affect and characterize the life and the future of people who make our food possible. We have closely followed the ongoing conversations around the UK Food Strategy, including a consultation that opened just last week, along with the parliamentary debate around the Agricultural Bill and the proposals on the new post-CAP domestic settlement for agriculture. We have also been particularly attentive to the increase in household food insecurity in the country, in particular among farmworkers, farmers and workers within the food sector. It is striking that hunger, obesity and malnutrition are increasingly felt among those who produce and transform food.

In light of our research, experiences and conversations, we have listed below some of the main conclusions arising from our workshop. There is no food without labour, and because a healthy and justly rewarded workforce is essential to a sustainable food system, we consider that these elements should inform the whole process of the UK food strategy. When it comes to labour, the future of food is not only about a skilled workforce that knows how to use technology. It is about: an integrated approach and greater coordination within the food system; attention to the bottlenecks; a broad notion of food workers; intersectionality; transparency and visibility; protection, respect and fulfilment of the workers’ human and labour rights; access to justice and reliable enforcement;  and  fair access and use of technological innovation. (more…)