Does X mark the spot?

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UK Supreme Court clarifies when local authorities have a duty of care to protect victims from harm when carrying out their statutory functions

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

The question of local authority liability in negligence for failing to intervene to protect vulnerable parties from harm has been discussed by the highest UK courts in recent years.  Local authorities have statutory powers to intervene to assist citizens in need.  When, then, should they be liable for failing to intervene to protect citizens from harm from third parties?  In recent years, the Supreme Court in two cases relating to the police sought to move away from policy-based analysis (seen famously in the controversial decision in X (Minors) v Bedfordshire CC [1995] 2 A.C. 633) to one based on traditional common law approaches to omissions and precedent: see Michael v Chief Constable of South Wales [2015] UKSC 2 and Robinson v Chief Constable of West Yorkshire [2018] UKSC 4.  These cases draw an important distinction between a defendant who harms the claimant and one who fails to stop a third party harming the claimant. The second situation will not generally give rise to liability unless:

  • A relationship exists between the parties in which one party assumes responsibility for the welfare of another; or
  • The authority can be said to have created the source of danger or
  • The third party who has harmed the claimant was under the defendant’s supervision or control.

The latest Supreme Court decision in Poole BC v GN [2019] UKSC 25, delivered on 6 June 2019, marks an attempt by the Court to provide clearer guidance to litigants, while trying to reconcile somewhat contradictory earlier case-law.  It is a rather complex decision – although given in a single judgment – and an important one.  The purpose of this blog, therefore, is to explain the Court’s reasoning and give some indication of its implications for future case-law development. (more…)

Controlling bank misconduct: how to improve consumer protection?  

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By Dr Holly Powley, Lecturer in Law and Prof Keith Stanton, Emeritus Professor of Law (University of Bristol Law School).

Background

In April the Financial Conduct Authority issued a Feedback Statement (FS19/2) on its Discussion Paper (DP18 /5) ‘A duty of care and potential alternative approaches’ affecting the financial services industry. The Feedback Statement reports on the outcomes of the consultation and summarises the views of those who responded to the consultation. This is a topic that has been on the regulatory agenda for several years, originally initiated by the Financial Services Consumer Panel (FSCP), but also considered by the Law Commission and the House of Lords Select Committee on Financial Exclusion, with varying degrees of support. The authors have assessed these reform proposals in an earlier blog post. Whilst it is difficult to draw any firm conclusions from this round of discussions as to the FCA’s future policy in this area, it does indicate how the FCA’s work on this topic is developing. (more…)

Some thoughts on the frustrations of carrying out Brexit-related research (in the UK)

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By Dr Pedro Telles, Senior Lecturer in Law (Hillary Rodham Clinton School of Law, Swansea University) and Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).

“Britain in the Crazed Brexit Vortex“

Brexit, its research and its teaching are increasingly becoming a field of study on their own—see eg the illuminating contributions to the special issue edited by C Wallace & T Hervey on ‘Brexit and the Law School’ (2019) 53(2) Law Teacher 133-229, some of which build on the earlier series of SLS ‘Brexit and the Law School’ Seminars, one of which Albert had the pleasure to host at the University of Bristol Law School in July 2017. This seems rather natural, as it is hard to overstate the impact that Brexit is having on the work of academics active in all areas, but particularly for public and EU law scholars. In this post, we offer some personal reflections on the frustrations of carrying out Brexit-related research, some of which are related to Brexit and its unforeseeability, while others are derived from more general constraints on the ways legal research is published and assessed.

Researching a moving target …

The first issue that concerns us is the need to try to foresee what is likely to happen along the Brexit process (itself unknown and highly volatile), which puts legal scholars in a difficult bind because this is clearly a politics-driven phenomenon that curbs almost every imaginable rule or precedent remotely applicable to a comparable situation. We are not sure that legal scholars are in the best position to offer policy forecasts but producing research that is of any use to policy-makers requires such an effort. (more…)

The Cost of ‘Justice’: Sexual Offence Complainants and Access to Personal Data

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By Dr Yvette Russell, Senior Lecturer in Law and Feminist Theory (University of Bristol Law School)

Photo Credit: Flickr

Monday last week saw the announcement of a new national policy requiring criminal complainants to sign consent forms authorising detectives to access data in their mobile phones. Conveyed in a joint briefing by Metropolitan police assistant commissioner Nick Ephgrave and director of public prosecutions (DPP) Max Hill QC, the new policy is designed to ‘ensure all relevant lines of enquiry are followed’ and that any material that undermines the case for the prosecution or assists the case for the accused is detected and disclosed to the defence.  While the forms are not to be used solely for sexual offence complainants the use of the forms in these cases was a major focus of Monday’s briefing.  While the CPS noted that not all sexual offence complainants will be asked to divulge digital data it is likely, given that most sex crimes occur between parties who are known to each other, that a high proportion of those complaining will be asked to sign a consent form and hand over their phones and the data therein.

Following the robust objections of many rape survivors’ advocacy groups to the new policy, the CPS and police late last week invited victims’ groups to discuss their concerns about the new consent form.  Over the weekend, the Association of Police and Crime Commissioners took the unusual step of publicly objecting to the introduction of the consent form, labelling it a risk to public confidence in the criminal justice system. (more…)

Privatising Land in England

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By Prof Antonia Layard, Professor of Law (University of Bristol Law School)

While land law often hits the front pages of the Daily Mail (“Homeowners back from vacation encounter a motormouth squatter”), two recent books have taken the UK broadsheets by storm. The first is Brett Christophers’s The New Enclosures: The Appropriation of Public Land in Neoliberal Britain, the second is Guy Shrubsole’s Who Owns England: How We Lost Our Green and Pleasant Land. Both books are concerned with transparency (and the niceties of land registration) as well as why ownership matters.

Building on years of work by Kevin Cahill, Doreen Massey, Andy Wightman, Anna Powell-Smith and James Meek – along with Domesday Book, the 1873 Return of Owners of Land and Lloyd George’s 1910 Valuation Office Survey – Shrubsole is able to build a picture of property dominance by a few, estimating that half of England is owned by less than 1% of the population (at least 30% of whom are aristocracy and gentry). According to Shrubsole, the state now owns 8% of England’s land mass, although it used to be much more. In fact, Christophers estimates that approximately two million hectares, or ten percent of the Britain landmass, have left the public sector for private ownership between 1979 and 2018.

So why does land ownership matter? As all law students learn, land ownership brings with it rights and privileges (as well as obligations, in respect of taxation and occupiers liability). Unless there are specific exceptions, the land is mapped as right to roam access land, for instance, or as a highway, the landowner can ask any person to leave: refusal converts entry into a trespass. As owners, landlords can charge market rents to let out their houses, developers can – subject to planning – transform former libraries and convert them into flats. Land ownership brings prestige, power and the potential for profit. (more…)

Promoting the next generation of health law scholarship

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By Prof John Coggon and Prof Judy Laing (Bristol University Law School)

In October 2017, we were proud and honoured to mark the launch of the Centre for Health, Law, and Society (CHLS) in the University of Bristol Law School. The Centre is founded on ambitious aims to push the boundaries of scholarship in health law: expand its methods and approaches; broaden its practical reach and points of focus; enhance its place in shaping education; and increase its engagement with, relevance to, and impacts on people, organisations, regulators, and policy-makers across society.

Our launch event allowed a showcase of the breadth of scholarly interest and inquiry within CHLS, as well as an opportunity to hear presentations from leading figures in health, law, and associated disciplines. We start from a basic premise that the value and significance of health requires understandings from ranging disciplinary perspectives, looking across social sectors and actors. We are interested in the roles served by law to protect and promote rights, achieve greater social justice, and to ensure that health and other fundamental values are secured fairly for all.

Since the time of our launch, CHLS has gone from strength to strength. Our community of students, academics and collaborators continues to grow. And we are delighted in March 2019 to publish a Special Issue of the Northern Ireland Legal Quarterly (NILQ), which shows well the depth, range and reach of our ambitions. The Special Issue comprises contributions from 11 of CHLS’ members, as well as from colleagues from other universities. They represent legal scholarship that engages with ethical considerations and social justice, history, human rights, philosophy, politics and social sciences. They approach questions spanning from very individualised rights, to population- and systems-level analyses. (more…)

The case for revoking the A50 notification

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By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

This blog is written after the European Council conclusions were agreed yesterday, on 21 March, on the assumption, which is widely shared, that the EU’s extension plan is accepted by the UK.  It is in two parts. In the first, I explain the nature of the choices ahead. In the second, I seek to make a positive case for revoking the A50 notification.

The choices ahead

As has been the case for a while now, there are four possible outcomes to the Brexit process.

  1. The UK leaves the EU under the Withdrawal Agreement
  2. The UK leaves the EU with no deal
  3. The UK leaves the EU under a different deal
  4. The UK does not leave the EU

The first option is Theresa May’s preferred outcome: that we leave the EU under the terms set by the Withdrawal Agreement. Under the terms of the conclusions, the European Council agreed to an extension until 22 May ‘provided the withdrawal agreement is approved by the House of Commons next week’. The European Council reiterates that there can be no reopening of the Withdrawal Agreement, adding that ‘any unilateral comment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement’. This looks very much like the ‘technical extension’ Theresa May asked for in her letter of 20 March, with the 22 May date chosen so that the UK leaves the EU before the elections to the European Parliament occur, and with a clear indication that no sugar-coating of the backstop will be tolerated. (more…)

Why a no-deal Brexit on 29 March is unconstitutional, not the “legal default”

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By Rose Slowe LLM, Honorary Research Fellow, University of Bristol Law School. Author on EU Law and Barrister at Foundry Chambers.

Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.

Article 50(1) of the Treaty on European Union (‘TEU’) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court, the highest judicial authority responsible for interpreting our unwritten constitution, confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The Miller litigation, while lacking in a critical respect, as discussed elsewhere, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate. (more…)

Land, law and life: the unexpected interest of medieval tenancy by the curtesy

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By Prof Gwen Seabourne, Professor of Legal History (University of Bristol Law School)

Window from St Mary’s church, Ross-on-Wye, Joseph with Jesus.

Even for those who enjoy spending their time with historical legal records, plea roll entries relating to medieval land law cases may not be high on a list of interesting areas to investigate. The vocabulary is often off-putting and the records somewhat formulaic and repetitive. Nevertheless, patient digging in these apparently monotonous sources can turn up information on some big, important issues of medieval thought and belief. My recent research on an area of medieval land law, published in the Journal of Legal History,[i] sheds some light on one of the biggest questions of all (in the medieval period or subsequently): what is life?

Juries and lawyers sometimes had to wrestle with questions of the presence and proof of life in cases involving tenancy by the curtesy. This was the widower’s life interest in land, following the death of his wife. Crucially, in order to qualify for this right, the widower had to have produced live offspring with his wife. Because of this requirement, medieval courts and lawyers had to make decisions in some very difficult cases in which there was doubt and disagreement as to whether a baby, now definitely not alive, had ever been alive. How did medieval people distinguish life from its absence, the fleetingly alive from those who were (in modern English) stillborn? (more…)

Shamima Begum: legality of revoking British citizenship of Islamic State teenager hangs on her heritage

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

Sajiv Javid’s decision to revoke the citizenship of Shamima Begum, the 19-year-old from Bethnal Green who left to join Islamic State in 2015, has been met with mixed reaction. While some supported the home secretary’s decision, others have expressed concern about its implications.

In these debates, there is much confusion about what cancellation of citizenship entails: whether this is just the cancellation of Begum’s passport, whether she is becoming stateless or whether she could be sent to Bangladesh because she comes from a family of Bangladeshi heritage.

In reality, cancellation of British citizenship means people can be left in limbo in war zones because they lose the right to re-enter the UK and to receive any diplomatic protection.

Begum’s case, while high profile, is not unique, and in 2017, there was a large spike in cases and the citizenship of 104 people was revoked on grounds where it was deemed “conducive to the public good”. (more…)