Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?

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

By Patrick Marioné

A cardinal axiom of international human rights law is that the prohibition against torture, cruel, inhuman and degrading treatment is absolute in the sense that no exception can be accepted, defended, justified, or tolerated in any circumstance whatever. Yet, for several reasons this is deeply problematic. For a start, since absoluteness is not an express, inherent, self-evident, or necessary feature of the provisions in question, this status is a matter of attribution rather than, as the orthodoxy holds, inherent legal necessity. Other non-absolute interpretations are not only possible, but expressly underpin similar prohibitions in some celebrated national human rights instruments. It does not follow either, because the term ‘cruel, inhuman or degrading treatment’ is typically included in the same clauses which prohibit torture, that each of these very different types of harmful conduct must necessarily share the same status. The much-repeated claim that the prohibition is absolute in principle but relative in application is also unconvincing. Finally, it is not merely morally or legally, but also logically impossible for each of two competing instances of any ‘absolute’ right to be equally ‘absolute’ in any meaningful sense. The prohibition against torture, cruel, inhuman and degrading treatment in international human rights law can, at best therefore, only be ‘virtually’, rather than strictly, absolute. It applies, in other words, in all but the rarest circumstances but not, as the received wisdom maintains, to the exclusion of every possible justification, exoneration, excuse, or mitigation.

S Greer, ‘Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?‘ (2015) 15 Human Rights Law Review 101–137.

From the “Democratic Deficit” to a “Democratic Surplus”: Constructing Administrative Democracy in Europe

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By Dr Athanasios Psygkas, Lecturer in Law (University of Bristol).

When academics, policymakers, media commentators, and citizens talk about a European Union (EU) “democratic deficit,” they often miss part of the story. My new book, From the “Democratic Deficit” to a “Democratic Surplus”: Constructing Administrative Democracy in Europe (Oxford University Press, 2017), challenges the conventional narrative of an EU “democratic deficit.” It argues that EU mandates have enhanced the democratic accountability of national regulatory agencies by creating entry points for stakeholder participation in national regulation. These avenues for public participation were formerly either not open or not institutionalized to this degree.

By focusing on how the EU formally adopted procedural mandates to advance the substantive goal of creating an internal market in electronic communications, I demonstrate that EU requirements have had significant implications for administrative governance in the member states. Drawing on theoretical arguments in favor of decentralization traditionally applied to substantive policy-making, the book illustrates how the decentralized EU structure may transform national regulatory authorities into individual sites of experimentation and innovation. It thus contributes to debates about federalism, governance and public policy, as well as about deliberative and participatory democracy in the United States and Europe. (more…)

Brexit and Public Procurement Reform: What Next?

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By Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).*

Eight months ago, by giving formal notice under Article 50 TEU, the United Kingdom formally started the process of leaving the European Union (so called Brexit). This has immersed the UK Government and EU Institutions in a two-year period of negotiations to disentangle the UK from EU law by the end of March 2019, and to devise a new legal framework for UK-EU trade afterwards. The UK will thereafter be adjusting its trading arrangements with the rest of the world, and the Government has recently stated its intention for the UK to remain a member of the World Trade Organisation Government Procurement Agreement (GPA).

In this context, public procurement regulation is broadly seen as an area where a UK ‘unshackled by EU law’ would be able to turn to a lighter-touch and more commercially-oriented regulatory regime, subject only to GPA constraints. There are indications that the UK would simultaneously attempt to create a particularly close relationship with the US, although recent changes in US international trade policy may pose some questions on that trade strategy. Overall, then, Brexit has created a scenario where UK public procurement law and policy may be significantly altered. In a paper* recently published in the Public Contract Law Journal with Dr Pedro Telles, I speculate on the possibility for Brexit to actually result in a significant reform of UK public procurement law (of which I remain sceptical). (more…)

The Irish conundrum exposes the harsh realities of Brexit

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

On Monday 4 December 2017, we reached what may prove to be a key staging post on the long, and winding, road which may or may not be leading us towards Brexit. Progress to phase 2 of the withdrawal negotiations, in which the UK and EU will be able to begin to discuss their future relationship, is, as stipulated by the EU and agreed by the UK Government, dependent on ‘sufficient progress’ in relation to the divorce bill, citizens’ rights, and Ireland. The clock towards March 2019 is ticking.

By Monday morning, it appeared that a methodology for calculating the divorce bill had been agreed, and that sufficient guarantees relating to the protection of citizens’ rights had been offered (though it should be noted that various difficult issues, including in relation to the future role of the CJEU, appear to have been left to phase 2). It was also reported that an agreement had been reached that there was ‘to be no divergence from those rules of the internal market and the customs union, which now or in the future, support North South cooperation and the future of the Good Friday Agreement’, a form of words which appears to have been agreed in Brussels, Dublin and London. Reading that, it is not clear whether the leaked agreement contemplated harmonisation between the EU (including Ireland) and Northern Ireland specifically; or between the EU (including Ireland) and the UK as a whole.

Enter the DUP. Arlene Foster made it clear that the DUP would not accept ‘any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom’. Suddenly, the deal was off. Had the UK been agreeing to a lack of divergence between Ireland and the UK as a whole, the DUP’s concern would not have resonated. It is only possible to conclude that, in order to allow the withdrawal negotiations to move forward, the UK Government was contemplating a regime in which divergence within the island of Ireland was to be managed, while the rest of the UK retained the freedom to distance itself more sharply from EU (including Irish) rules. A chorus of voices, from Scotland, Wales and London (and also, I believe, Grimsby), predictably rose to demand an equivalent right to similar special treatment, seeking to protect their own special relationships with the EU. We wait to see how the Government will react.

This short contribution aims to illustrate that there are now hard questions for the Government to confront. If Ireland is in the single market and customs union and Northern Ireland is not, there will need to be a border on the island of Ireland, and, as Anand Menon wrote yesterday, any increase in regulatory divergence in Ireland would impact significantly on people’s lives there (he references health care, agriculture, transport, and energy). If the island of Ireland is to remain in the single market and customs union (or, and I will come back to this shortly, be the subject of an equivalent arrangement ensuring continued regulatory alignment) and the rest of the UK is not, there will need to be a border across the Irish Sea. (more…)

The Models of Parliamentary Sovereignty

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By Mr Marc Johnson, Teaching Associate in Law (University of Bristol Law School).

By Mайкл Гиммельфарб (Mike Gimelfarb) – https://commons.wikimedia.org/w/index.php?curid=5049123

The concept of Parliamentary Sovereignty (also referred to as Parliamentary Supremacy and Legislative Supremacy) deals with several concurrent principles and this makes it a complicated concept to grasp in its entirety. Coupled with this, the media portrayal of this subject through the campaigns on the referendum on exiting the European Union often gave a disingenuous or incomplete view of the Sovereignty of Parliament and as such there are many misconceptions.

This blog piece will address those misconceptions by setting out the models of Parliamentary Sovereignty. These models attempt to explain the way which sovereignty operates, though it may not have escaped the reader’s attention by this blog’s conclusion that each model has positive and negative attributes. This blog offers some opinion on each model of sovereignty to incite further discussion and debate on the topic.  (more…)

Has the European Court of Human Rights Become a “Small Claims Tribunal”?

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By Prof Steven Greer, Professor of Human Rights, and Ms Faith Wylde, Research Assistant (University of Bristol Law School).

View of the Court’s main entrance

After nearly two decades, the case overload afflicting the European Court of Human Rights has finally been reduced to more manageable proportions. However, it is too early to tell if this welcome trend will be sustained. But, if it is, the authors of this article argue it will have been achieved at considerable cost because, in the attempt to defend it, the cherished right of individual petition has, paradoxically, been undermined.They also claim that the Court has been confirmed as a“human rights small claims tribunal”, that structural violations are now more likely to be institutionalised than resolved, and that a golden opportunity to improve the protection of human rights across the continent has been missed.

Greer & Wylde develop these arguments in full in their publication ‘Has the European Court of Human Rights Become a “Small Claims Tribunal” and Why, If at All, Does it Matter?‘ (2017) 2 European Human Rights Law Review 145-154.

Transgender Rights in the United Kingdom and Ireland: Reviewing Gender Recognition Rules

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

In the coming months, the United Kingdom (UK) and Irish governments will (separately) review the legal processes by which transgender (trans) persons can have their preferred gender (currently referred to as the ‘acquired gender’ in UK law) formally recognised. Drawing upon my scholarship from recent years, in this post, I consider current movements for reform in the UK and Ireland, with a particular focus on trans minors (who are largely excluded from the UK and Irish frameworks) and non-binary individuals. I conclude this discussion, in the last section, by reviewing the question of ‘self-determination’, and asking if/how the UK can move beyond its current diagnosis-orientated recognition model. (more…)

Banking misconduct and SMEs: protection for small businesses?

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

By Dean Hochman

The Royal Bank of Scotland (RBS) has been placed under the spotlight with regards to its treatment of small and medium sized enterprises (SMEs) that experienced financial difficulties and were referred to its Global Restructuring Group (GRG). The Financial Conduct Authority (FCA), heavily criticised for its failure to publish the full report of an investigation into the business practices within RBS’s GRG has, in the last fortnight, released an interim summary of the report. The report itself makes for an uncomfortable read, highlighting serious issues with regards to the treatment of SMEs within RBS, amid allegations that it was this treatment that led to the failure of these SMEs, detrimentally affecting the livelihood of those involved with the businesses as a result.

This episode serves to highlight the lack of options available to SME customers who feel that they have been mistreated by their bank. Despite the FCA now indicating that they will take steps to extend the scope of the Financial Ombudsman Service (FOS) to enable SME access to the service, there are still questions about the scope of the regulatory regime and its applicability to SMEs. As will be demonstrated, the structure of the regime itself has, thus far, operated to exclude SMEs from access to redress. This blog will analyse the current position for SMEs and will assess the viability of potential reform to the FOS.  (more…)

Closing the Gaps: Health and Safety in the Home

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By Dave Cowan, Professor of Law and Policy (University of Bristol Law School).

Following a commission from Shelter, the housing charity, Dave Cowan and Edward Burtonshaw-Gunn, University of Bristol Law School, and Helen Carr and Ed Kirton-Darling, University of Kent Law School, conducted research into the law and practice around housing standards.  Their conclusions – which draw on 940 responses to a questionnaire from professionals, landlords and occupiers – make for stark reading about the deficiencies in our current law.  This is the Executive Summary to the report.  The full report can be found at http://www.bristol.ac.uk/law/research/grenfell/.

The law relating to health and safety in people’s homes is piecemeal, out-dated, complex, dependent upon tenure, and patchily enforced. It makes obscure distinctions, which have little relationship with everyday experiences of poor conditions. Tenants wanting to remedy defects face numerous and often insurmountable barriers to justice. The law needs to evolve; no longer should occupiers be treated as posing health and safety risks; instead they should be treated as consumers of housing with enforceable rights to ensure minimum standards are adhered to. The state needs to accept its role as the primary enforcer of those standards.

Not only does the law require reform, there also needs to be a cultural change, so that those responsible for the health and safety of occupiers become pro-active in fulfilling those responsibilities.

We recommend a new Housing (Health and Safety in the Home) Act which is tenure neutral, modern and relevant to contemporary health and safety issues, and which encourages and provides resources for pro-activity by statutory authorities. In particular, the Act should

  • Strengthen duties on local authorities to review housing and enforce housing health and safety standards
  • Introduce a legal duty to review and update all guidance relating to health and safety in the home every three years
  • Provide routes for occupiers to require local authorities to carry out housing health and safety assessments
  • Remove unnecessary legal barriers preventing enforcement action being taken against local authority landlords and remove unnecessary procedural barriers which undermine the current regime
  • Consolidate and up-date existing law
  • Place clear responsibilities on bodies for breaches of fire and building regulations
  • Provide routes for occupiers to hold landlords and managers to account for fire safety provisions
  • Strengthen remedies against retaliatory eviction

Such an Act, either working alongside or incorporating a Homes (Fitness for Human Habitation) Act, would not only improve health and safety outcomes for occupiers, it would signify also that, as a society, we accept responsibility for those standards.

Forum shopping for interim measures in international commercial arbitration

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By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

Interim measures of protection have an important role to play in international commercial dispute resolution. Because of the inevitable time delay between a dispute coming to a head and the resolution of that dispute by arbitration or another formal dispute-resolution process, a claimant (C) faces a number of risks. For example, the respondent (R) may attempt to make itself ‘award-proof’ by hiding or dissipating the assets against which C, if successful in the arbitration, might reasonably hope to enforce the award; or R might take steps to destroy evidence which is crucial to C’s claims; or R may engage in conduct which, if allowed to continue unchecked, will exacerbate the dispute or even render any arbitration of the parties’ dispute nugatory. Because of such risks, most systems of arbitration law confer on arbitral tribunals the power to order interim measures of protection, whose purpose is, depending on the circumstances, to maintain the status quo, provide a means of preserving assets out of which an eventual award may be satisfied or preserve evidence that may be relevant to the resolution of the dispute (see, eg, art 17.2 of the UNCITRAL Model Law on International Commercial Arbitration).

However, conferring powers on the arbitral tribunal may be inadequate. Unlike national courts, arbitral tribunals do not have coercive powers to back up their orders and have jurisdiction only over the parties to the arbitration. Furthermore, if interim measures are required as a matter of urgency, giving powers to the arbitral tribunal is frequently meaningless; once a dispute has been referred to arbitration, it may well be weeks or months before the arbitrators can be appointed. Accordingly, some mechanism is needed to fill the gap between C’s triggering of the arbitration clause and the constitution of the tribunal. The rules of an increasing number of arbitration institutions fill this gap by making provision for the appointment of an emergency arbitrator (see, eg, art 29 of the ICC Arbitration Rules; art 9B of the LCIA Arbitration Rules). Failing such a procedure, the gap can be filled only by national courts.

But, as with many issues involving the relationship between international commercial arbitration and national legal systems, there is a territorial issue to be addressed: which national court (or courts) should be competent to exercise the power to grant interim measures of protection in support of arbitration and which competent court(s) should actually exercise such powers? This is an issue which had to be addressed by the High Court in the recent case of Company 1 v Company 2 [2017] EWHC 2319 (QB).  (more…)