The importance of the advice sector in the context of legal aid cuts

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By Dr Sarah Moore, Lecturer in Sociology (Department of Social and Policy Sciences, University of Bath).

The Law School blog has the pleasure of welcoming this guest post by Dr Sarah Moore, who was one of the participants in the recent book launch of Advising in Austerity. Reflections on challenging times for advice agencies (Policy Press, 2017). Dr Moore is also the co-author of Legal aid in crisis. Assessing the impact of reform (Policy Press, 2017) and offers here her insightful views on the need to boost the activities and funding of the legal advice sector.

Anyone familiar with legal aid reform will know that the Legal Aid and Sentencing of Offenders Act 2012 (LASPO) has dramatically altered the meaning and nature of legal aid. It has meant, amongst other things, a significant reduction in funding, largely achieved by taking a large number of areas of civil law out of scope, including private family law cases, and almost all cases involving social welfare, housing, medical negligence, immigration, debt, and employment.

The most strenuous critics of LASPO have pointed out that the recent funding cuts restrict people’s access to justice. In answering to these problems, LASPO incorporated a set of exceptions. Those who could provide evidence that they had been victims of domestic violence, for example, were to be given access to legal aid to pursue family law cases. And an Exceptional Case Funding caveat was incorporated in the Act for those who could successfully make a case that their human rights would be breached without publicly-funded legal assistance. Both have been woefully inadequate. (more…)

Abortion rights in Northern Ireland

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A comment on R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41.

By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).

The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties.  On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.

The case

In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].

A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2. (more…)

‘Bare’ arbitration clauses under the UNCITRAL Model Law on International Commercial Arbitration

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

As every student of international commercial arbitration ought to know, an arbitration agreement should not only impose on the parties a binding obligation to refer a certain dispute (or certain types of dispute) to arbitration but also, as a minimum, indicate the place (or seat) of arbitration and provide a mechanism for the appointment of the arbitral tribunal. Unfortunately, the drafting of arbitration clauses in commercial contracts often leaves much to be desired; in a case involving a badly-drafted arbitration clause, disputing parties who are unable to resolve their disputes by negotiation may find themselves getting bogged down in one or more of the procedural problems to which pathological arbitration clauses frequently give rise.

Particular difficulties may be posed by so-called ‘bare’ clauses – that is, clauses which merely provide for submission of disputes to arbitration without specifying the place of the arbitration, the number of arbitrators or the method for establishing the arbitral tribunal. If, once a dispute has arisen, the parties are unable to agree on the appointment of an arbitral tribunal, the claimant may encounter practical difficulties in activating the arbitration machinery and getting the arbitral tribunal established. (more…)

The Freedom of Religion: A threat to global security, or a means of enhancing it?

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By Prof Sir Malcolm Evans, Professor of Public International Law (University of Bristol Law School) and Chair, United Nations Subcommittee for Prevention of Torture.*

N White, Genesis (1999).

In recent years the relative importance of religion as an issue of legal and political significance has increased considerably.  For example, it took nearly forty years before the first human rights case concerning freedom of religion or belief came to be considered by the European Court of Human Rights; and in the 1990s official reports of the Council of Europe could express surprise that religion was still proving to be an important political factor in some parts of Europe. Few would advance such a claim today.

Some put this down to the rise in the numbers of religious believers globally; that is, religion is becoming more important simply because there are more religious believers.  It is certainly the case that there are now more people with religious beliefs on the face of the planet than at any time in history. But this does not explain the rise in the importance of religion in global politics. Nor does the increase in the absolute numbers of religious believers necessarily undermine the argument – so popular in Europe for so long – that religion is becoming increasingly unimportant to public life. (more…)

ESG investing and section 172 of the Companies Act 2006: Desperate times call for soft law measures

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By Dr Georgina Tsagas, Lecturer in Corporate Law (University of Bristol Law School).

In this blog entry, Dr Tsagas provides an overview of her proposal for the reform of the UK’s Corporate Governance Code. Her full arguments will soon be published in G Tsagas, “Section 172 of the Companies Act 2006: Desperate times call for soft law measures”, in N Boeger and C Villiers (eds.), Shaping the Corporate Landscape: towards corporate reform and enterprise diversity, Oxford: Hart Publishing, forthcoming.

Section 172 CA 2006: Not worth the paper it is written on?

Section 172 of the Companies Act 2006 has been afforded much attention during Parliamentary discussions on the codification of directors’ duties and has since the enactment of the Companies Act 2006 occupied much space in discussions among scholars who share an academic interest in the shareholder/stakeholder debate, in policy documents on law reforms following a series of corporate failures, as well as in company law lecture notes provided by Law Schools across the UK.

The previous duty to act bona fide in the interests of the company has been substituted by section 172 CA 2006, which imposes on a director the duty to ‘act in a way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole’ and in doing so must have regard to a series of factors listed in the section. The factors are: (a) the likely consequences of any decision in the long term, (b) the interests of the company’s employees, (c) the need to foster the company’s business relationships with suppliers, customers and others, (d) the impact of the company’s operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f) the need to act fairly as between members of the company.

With the UK leaving the EU, it is a critical time to discuss enlightened decision-making on boards, considering that, arguably, one of the key benefits of joining the EU with regard to UK company law, was that the UK was prompted to consider incorporating provisions affording a certain level of protection to the interests of other constituencies across a wide range of company and securities law Acts and regulations. What often escapes the attention of participants in discussions surrounding s. 172 CA 2006, is the section’s limitations not so much in terms of it prioritising the interests of shareholders over the interests of other constituencies, but with regard to its enforcement and utility overall. (more…)

Advising vulnerable young people

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By Mr John Peake, Director of the Law Clinic (University of Bristol Law School).

© David McKelvey

Kate Aubrey-Johnson writes that vulnerable children are not impressed by barristers’ textbooks. But then who would be. Certainly not the majority of young people who are drawn into the criminal justice world.

But the points she makes about the need for youth advocates to be specially trained and equipped with the communication skills needed to engage with vulnerable young people are as valid when advising the majority of young people as when representing those young people who are brought into the youth justice system.

For the first few months of my time as Director of the University of Bristol Law Clinic we were running drop in sessions initially with Creative Youth Network and then in conjunction with Kids Company. Both of these sessions operated from premises in Silver Street in the centre of Bristol but there was a marked disparity between take up. In the three months we were running sessions through Creative Youth we maybe saw two people. In contrast we would normally see at least two young people at each of the weekly Kids Company sessions. Some of the Kids Company young people continue to receive help from the Clinic. So why the difference?  (more…)

Penalty clauses and the courts – Does the UK approach differ from the rest of Europe?

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by Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School).*

Contractual penalty clauses raise questions going to the heart of contract law: should the courts enforce clauses which make payment of a large sum of money due on breach of contract? The argument is that such clauses act as a penalty for breach and are used by economically stronger parties to “discourage” the other party from breaching the contract. The sums in question are often extortionate and bear no resemblance to the true losses of the parties. Should the courts intervene – and diminish the parties’ freedom to contract as they will – or should they simply enforce the contract?

This question was addressed by the UK Supreme Court in Cavendish Square Holdings BV v Makdessi; ParkingEye Ltd v Beavis ([2015] UKSC 67) and raises profound questions of the role of judges in policing contractual agreements and the “morality” of contract law. (more…)

Bristol Law Review’s 2017 Edition Published

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By Miss Christina Chambers, Law Student (MA, 2017) and Editor-in-Chief of the Bristol Law Review for the 2017 Edition (University of Bristol Law School).

The University of Bristol Law School is proud to announce the publication of this year’s edition of the Bristol Law Review, which is freely accessible at https://bristollawreview.co.uk/print/. The Law School Blog also warmly welcomes its Editor in Chief’s reflections on the importance of this project for our students and as an opportunity to further develop the Law School as a learning community.

It was my great privilege to be the Editor-in-Chief of the Bristol Law Review for the 2017 Edition. The Bristol Law Review represents a platform for exceptional students to showcase their writing and also provides a unique educational experience for its editors. As Dr Eirik Bjorge so rightly pointed out in the preface to this year’s Law Review, “[m]any of today’s law students strive first and foremost to be qualified for ‘jobs in the modern world’, and believe that the study of law in a university should be geared in the first instance towards learning just about enough successfully to answer four prepared questions in an examination.”

At times the pressure to consider a law degree as a means to an end is overwhelming. I am sure that there are a great number of students who would consider the process of spending hours reading, editing and critiquing the work of their peers to be some sort of punishment, but this is to ignore the great benefits that come with such an endeavor. Of course, there is the instant benefit of reading in great detail the best work that has been produced at all levels of study and incorporating the strongest elements of this into your own work. The feedback I received from the editorial board this year following their training session certainly attests to this! However, there is also the long term benefit of truly engaging with law as an academic pursuit, something that I believe is sometimes overlooked in the effort to simply make it through your degree. (more…)

Hostages and Human Rights at the European Court of Human Rights: The Tagayeva and Others v Russia Case

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By Dr Sofia Galani, Lecturer in Law (University of Bristol Law School).

On Thursday, 13 April 2017, the European Court of Human Rights released one of the most anticipated decisions in the Court’s history – the Tagayeva and Others v Russia case. The judgment concerned the siege of the Beslan School, North Ossetia by Chechen fighters in September 2004 and the ensuing rescue operation by the Russian forces. During these tragic incidents, 330 people lost their lives, including more than a hundred children. Almost 180 of the victims were burnt to an extent that the identification of the remains and establishment of the cause of death were impossible.

The purpose of this blog is to summarise the key findings of the Court’s 239-page decision and provide a brief overview of the human rights obligations of states in the context of hostage-taking as discussed by the Court. Although this hostage-taking incident was of an unprecedented scale, terrorist groups have never stopped taking hostages within or outside Europe, and as a result European states have been involved in a number of rescue operations. Therefore, this judgment can help clarify the obligations that states have before, during and after a hostage-taking incident occurs. (more…)

New LLM: Health, Law, and Society

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By Prof John Coggon, Professor of Law and Co-Director, Centre for Health, Law, and Society (University of Bristol Law School).

Scholars at the University of Bristol Law School have enjoyed a longstanding presence at the forefront of research in health law, and the undergraduate unit in Medical Law has become one of the most popular options on our degree programme. The School is home to leaders in fields that examine health law topics such as reproduction, mental health, public and global health, medical innovation, public procurement, and professional regulation. Our academics explore these issues from critical perspectives that include ethical, justice-based, historical, regulatory, economic, political and socio-legal approaches. As well as leading in research and education, we have close engagement with bodies responsible for advocacy, regulation, standard-setting, professional training, and providing ethical review and advice.

In reflection of this excellent concentration of expertise and experience, we have founded a new research Centre and are launching an exciting LLM Programme in Health, Law, and Society. Our aim with this innovative degree is to advance a course that looks at, but also reaches far beyond, questions concerning medicine and healthcare, to incorporate knowledge and understanding of how law and governance across all social and political sectors may impact health—for better or for worse. The breadth and depth of study on the course, reflecting directly our diverse range of teaching and research interests, is enhanced by the inclusion throughout the year of guest sessions led by scholars and specialists whose work and practice afford them unique insights and perspectives. (more…)