University of Bristol Law School Blog – Page 34 – A window into the legal research carried out at the Law School

EU rights as British rights

Posted on November 14, 2016March 15, 2021 by legalresearch

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).

According to a carefully argued contribution by Professor Finnis in the Miller debate, rights under the European Communities Act 1972 ‘are not “statutory rights enacted by Parliament”’; they are only ‘rights under the treaty law we call EU law, as it stands “from time to time”’. Finnis thus purports to have broken the chain of the claimant’s main argument.

In that connection, Finnis considers the somewhat recherché example of taxation treaties and the Taxation (International and Other Provisions) Act 2010 to be a useful analogy. The point of the present contribution is to suggest that a more natural analogy would be the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Like the ECA 1972, the HRA 1998 conditions the legal relationship between citizen and state in an overarching manner and deals with fundamental constitutional rights. There is also particularly instructive judicial authority on the HRA 1998 specifically on question of the nature of its relationship with the international treaty whose obligations it mirrors. (more…)

Brexit, Environment and Devolution: the Welsh case

Posted on November 14, 2016November 7, 2016 by legalresearch

By Dr Margherita Pieraccini, Senior Lecturer in Law (University of Bristol Law School).

These were notes prepared for a seminar held by the External Affairs and Additional Legislation Committee of the National Assembly for Wales on the 31^st of October 2016 to discuss the implications of Brexit for Wales in the field of environment and marine policy in particular. The notes discuss a number of constitutional and sector specific issues, key challenges and present some suggestions. (more…)

Tesco Bank and Cybercrime

Posted on November 11, 2016 by legalresearch

By Mr Andrew Charlesworth, Reader in IT Law, and Prof Keith Stanton, Professor of Law (University of Bristol Law School).

The day has arrived on which a cyber attack has succeeded in breaching a bank’s security with the result that customers’ money has been taken from their accounts. According to press reports the accounts of around 40,000 customers of Tesco Bank have been accessed and the bank has refunded £2.5 million to 9,000 who have had money removed.

Banks’ IT systems are an obvious target for cybercriminals. The fact that such systems contain both money and data on customers makes them extremely tempting. As banks have developed new channels for delivery of services, such as websites, mobile applications and social media, these have often been added, or linked, to existing out-dated systems. This increased complexity may mean that new avenues of attack are inadvertently created, and make it difficult for a bank to rapidly pinpoint the source of system risks and breaches. The increased use of distributed computing, with multiple systems running across multiple servers, can also create new system risks and simultaneously increase the number of staff requiring access. While external threats are increasing, it appears that industry insiders remain responsible for a significant share of bank fraud. How the Tesco cyber attack was carried out remains unclear, but the scale and speed of the transfer of funds suggests a degree of sophistication. (more…)

Miller: Why the Government should argue that Article 50 is reversible

Posted on November 7, 2016 by legalresearch

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

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50. (more…)

The forgotten victims of Somali piracy

Posted on November 7, 2016March 15, 2021 by legalresearch

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

In October 2016, Somali piracy made headlines again, and the release of a group of seafarers who had been in captivity for nearly five years, reminded the international community of the adverse impact piracy has had on seafarers.

Piracy had always been a major maritime security threat, but the first two decades of the 21st century were marred by an unprecedented scale of pirate attacks off the coasts of Somalia. Between 2010 and 2014, almost 9,688 seafarers were attacked by Somali pirates and 2,060 seafarers were taken hostage. The estimated cost of ransom payments for the vessels and crews seized during the period 2005-2014 was between US$340 million and US$435 million. Somali pirate attacks have significantly dropped over the last two years, but Somali piracy has not come to end yet. In 2015, five hijackings were reported in the Western Indian Ocean where a number of seafarers remained in captivity. (more…)

Is the Treasury taking over land use planning?

Posted on October 31, 2016October 20, 2016 by legalresearch

By Prof Chris Willmore, Professor of Sustainability and Law (University of Bristol Law School).

Housing supply was marked as one of the key issues by the incoming government in 2015. Treasury estimates put the need for additional housing in England at between 232,000 to 300,000 new units per year, a level not reached since the late 1970s and two to three times current supply.

Aiming to tackle this issue, Communities Secretary Sajid Javid took the opportunity at 2016 Autumn Conservative Party Conference to announce a package of measures to speed up house building. Successive Secretaries of State have made similar pronouncements, to be followed by rather quieter explanations of why the measures failed, with blame variously afforded to councils, developers, or ‘nimbyism’. This time the ‘nimby’s were at the front of the queue for blame. What is surprising is not the announcement, but what it tells us about the role of the town and country planning, a massive and complex regulatory system that aims to chart a path through the conflicting environment, economic and social pressures affecting decisions about the use of particular pieces of land. (more…)

Allowable Costs under the Single Source Contract Rules: Costs for work undertaken at risk before entering into a defence contract

Posted on October 28, 2016 by legalresearch

By Dr Luke Butler, Lecturer in Law (University of Bristol Law School).

In an earlier blog, I introduced the Defence Reform Act 2014 (DRA), the Single Source Contract Regulations (SSCR) and the Single Source Regulations Office.[1] Collectively, these regulate the pricing of defence contracts awarded by the Ministry of Defence to a single source contractor. It is recalled that contractors can recover certain “Allowable Costs” incurred under a Qualifying Defence Contract (QDC) if they are appropriate, attributable to the contract, and reasonable in the circumstances (the so-called “AAR test”).[2]

But what if, ahead of the agreement of the contract, work relating to the contract is undertaken at risk pursuant to an “intention to proceed” (ITP) arrangement?[3] Unless the ITP fulfills the requirements for a legally binding contract, it cannot itself constitute a QDC.[4] This leaves the question whether this kind of pre-contractual work can constitute an Allowable Cost recoverable under the QDC once the QDC is in place. (more…)

Bank Regulation and Money Laundering

Posted on October 24, 2016April 11, 2018 by legalresearch

By Prof Keith Stanton, Professor of Law (University of Bristol Law School).

It has not been a good few weeks for the banking industry. In America Wells Fargo has been rocked by a scandal in which staff have been found to have fraudulently opened accounts for customers as a way of meeting sales targets. Deutsche Bank has teetered on the brink of disaster as a result of the size of the penalty it is facing in the US for misselling mortgage bonds. In Singapore the Monetary Authority has penalised two banks for anti-money laundering failures and control lapses and has withdrawn the license of a third bank for such failures. For once, the major UK based banks have been out of the headlines. However, the Financial Conduct Authority has added to the picture by penalising the Bangladeshi Sonali Bank (UK) Ltd £3.11 million and Steven Smith, the bank’s Compliance Officer and Money Laundering Reporting Officer (MLRO) a further £17,900 for anti money laundering (AML) failures. The bank was also prohibited from accepting deposits from new customers for a period of 168 days and Smith prohibited from performing a range of functions in the industry.

The Sonali Bank decisions are further examples of the FCA using its enforcement powers to send messages to the industry. It is part of the attempt to change the culture in banking and to reduce, if not eliminate, risk which might threaten the integrity of the banking system as a whole. It is widely accepted that money laundering poses a significant threat to the integrity of the financial system. As a result, firms are required to adopt rigorous controls aimed at minimising the risk of money laundering occurring. The facts of Sonali concerned these AML obligations. The case is a good example of the fact that the criminal offences which are commonly said to place banks under a stringent obligation to guard against money laundering are, in practice, of much less significance than regulatory action concerning failures taken by the FCA. (more…)

Researching fee-charging McKenzie Friends in private family law cases

Posted on October 21, 2016October 19, 2016 by legalresearch

By Dr Emma Hitchings, Senior Lecturer in Law (University of Bristol Law School).

In the wake of legal aid cuts, individuals in the midst of a family law dispute who cannot pay for legal representation are faced with a stark choice: settling the dispute outside of court or representing themselves as a litigant in person. However, a new market has emerged to plug this post legal aid funding gap: the fee-charging McKenzie Friend. A non-lawyer assistant who charges a fee for services provided to litigants in person.

Fee-charging McKenzie Friends are a current hot topic in the legal press. Only this week a fee-charging McKenzie Friend was jailed for perverting the course of justice in a private family law case and earlier this year the Judiciary conducted a consultation into the courts’ approach to McKenzie Friends. (more…)

Maximising the Legitimacy of the EU’s Regulation of Geoengineering Research

Posted on October 17, 2016September 23, 2016 by legalresearch

By Dr Janine Sargoni, Lecturer in Law (University of Bristol Law School).*

In what has been described as ‘nature’s own great climate experiment’, the 1992 eruption of Mount Pinatubo in the Philippines provided scientists with data to refine their climate models. After the eruption, average global temperatures dropped temporarily as particles released into the stratosphere increased the Earth’s albedo. Solar Radiation Management (SRM) – or ‘reflecting sunlight to cool earth’ – developed notionally thereafter as a means of reducing global average temperatures resulting from increased greenhouse gases.

Pinatubo provided all kinds of data which helped increase the accuracy of climate models eventually predicting with relative certainty the temperature-cooling climatic impacts of SRM, whilst leaving relatively uncertain – or unknown – the extent of environmental impacts, such as those arising from changing patterns of rainfall. The current limitations of models in telling us about localised environmental uncertainties could be reduced if research into the effects of SRM took place outdoors, or in the field, so to speak. But that research would actually constitute deployment which itself would generate uncertain environmental effects. Given these significant constraints it is not possible to establish to what extent SRM technologies are effective or reliable and therefore it is imperative that a legitimate regulatory process is secured in which decisions about its research and deployment can be taken.

This new article* sets out how risky SRM field research might be regulated in the EU in such a way as to maximise legitimacy. It suggests that under particular conditions the EU could delegate to an independent agency powers to undertake what I call an incorporated risk assessment; an assessment in which science and politics, expertise and lay-knowledges are combined. Legitimacy would be maximised because the EU’s regulatory framework relating to the risks of SRM field research would be legal and also responsive, flexible, deliberative and inclusive. (more…)