Will Judicial Deference to Medical Opinion Undermine the Patient-Focused Standard of Informed Consent to Medical Treatment?

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By Mrs Louise Austin, Associate Teacher in Medical Law and PhD Candidate in Law (1+3 ESRC) (University of Bristol Law School).

© Rookuzz..

Following the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board, which moved away from a model of medical paternalism and established a model of patient autonomy for informed consent to medical treatment, the High Court has recently had the opportunity to apply the new test in Grimstone v Epsom and St Helier University Hospitals NHS Trust. This blog post provides a summary of my case commentary in the Medical Law Review exploring this decision and its implications, which is now available as ‘Grimstone v Epsom and St Helier University Hospitals NHS Trust: (It’s Not) Hip To Be Square’. (more…)

Why the current DPP must be replaced with immediate effect and a royal commission on disclosure is urgently needed [with postscript]

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By Dr Michael Naughton, Reader in Sociology and Law (University of Bristol Law School and  School of Sociology, Politics and International Studies (SPAIS)).

Last Thursday (18 January 2018), the Director of Public Prosecutors (DDP), Alison Saunders, made the remarkable statement on BBC Radio 4’s Today Programme that ‘no innocent people are in prison because of failures to disclose vital evidence, despite admitting there is a “systemic issue”.’

Whatever her precise intentions, there is little doubt that the most senior prosecutor in England and Wales’s wilful refusal to acknowledge the reality of miscarriages of justice and that innocent people can be and are wrongly convicted and imprisoned only stoked the burgeoning crisis in the existing disclosure regime that governs alleged criminal investigations and prosecutions.

Variously described as ‘ill informed’, ‘complacent’ and ‘part of the current problem’, in this blog I critically evaluate the DPP’s statement in the context of her duties under the terms of the Code for Crown Prosecutors and the perennial problem of miscarriages of justice and wrongful imprisonment in England and Wales.

Moreover, in the context of a growing lack of confidence in the DPP and the disclosure regime in alleged criminal investigations and prosecutions, I will make the case that the DPP should be immediately replaced and for governmental intervention in the form of a royal commission to get to the heart of the apparent problems and devise solutions to fix a system that is clearly broken and in urgent need of repair. (more…)

Six myths about the ‘Prevent duty’ in universities

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By Prof Steven Greer, Professor of Human Rights, and Dr Lindsey Bell, Lecturer in Law (University of Bristol Law School).

The Counter-Terrorism and Security Act 2015 (CTSA) has aroused great controversy by imposing a legal duty upon schools, universities, the NHS and other institutions to ‘have due regard to the need to prevent people from being drawn into terrorism’ (the ‘Prevent duty’). However, in an article published in the current issue of the academic journal Public Law, ‘Counter-Terrorist Law in British Universities: A Review of the “Prevent” Debate’, we argue that the campaign against the Act and the duty in higher education rests largely upon myths, six of which are particularly prevalent. In this blog, we provide a summary of those myths (you can also watch a short video outlining the main arguments). (more…)

Contractual interpretation: from the Tudors to Lord Hoffmann

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By Ms Joanna McCunn, Lecturer in Law (University of Bristol Law School).

© Folger Shakespeare Library

Contractual interpretation continues to be a controversial topic. In a recent speech, Lord Sumption attacked Lord Hoffmann’s judgment in Investors Compensation Scheme [1998] 1 WLR 896, still the leading case in the area. For Lord Hoffmann, the key question was what a reasonable person would understand the parties to have intended by their contract, even if this was something different to the ordinary meaning of the words they had used. Lord Sumption, however, argued that the courts must give primacy to the meaning of the words.

It is sometimes suggested that Lord Hoffmann’s approach is an aberration in the common law of contract, which has consistently prioritised the meaning of the words over the parties’ apparent intentions. In fact, however, it bears a striking resemblance to the approach taken by the courts in sixteenth century England, where a very similar debate about interpretation was playing out. In a recently-published book chapter*, I explore this history and what it means for contract lawyers today. (more…)

Do arbitral errors on the law governing the merits of a dispute referred to arbitration justify setting aside or non-enforcement of the award?

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

© Pedro Ribeiro Simões

Assume that contracting parties (C and R) agree that their contract is governed by English law and that any dispute arising in connection with the contract should be referred to arbitration. A dispute arises which C refers to arbitration. An arbitral tribunal is appointed and, in due course, the tribunal renders an award ordering R to pay damages for breach of contract. R seeks either to have the award set aside (by the courts at the seat of arbitration under the lex arbitri) or to resist enforcement of the award (in another country under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘NYC’)) on the basis either that the tribunal applied French law to the dispute, instead of English law, or that the tribunal decided the dispute ex aequo et bono (ie, by the application of an equitable standard), rather than through the application of legal rules and principles. In such circumstances, does R have a legitimate ground for having the award set aside or for resisting enforcement?

If the seat of arbitration is in a country which has implemented the UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’ or ‘ML’), such as Singapore, Hong Kong, New Zealand, Australia or Canada, this question should receive the same answer whether the context is setting aside or enforcement under the NYC: this is because the grounds for setting aside under article 34 ML are almost identical to the grounds on which recognition and enforcement may be refused under article V NYC. This blog post discusses this issue in depth. (more…)

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…)