University of Bristol Law School Blog – Page 37 – A window into the legal research carried out at the Law School

UK Trade after Brexit: Is the WTO a suitable alternative?

Posted on June 21, 2016June 13, 2016 by legalresearch

By Dr Clair Gammage, Lecturer in Law (University of Bristol Law School).

As a regional integration lawyer, I have become increasingly concerned about the arguments put forward by both camps in the Brexit debate which, in my opinion, overlook the complexity of international trade. As the world has become increasingly multilateralised, the power base has shifted from the traditional “sovereign State” toward international institutions and regional organisations. States are no longer the only governing organisations in the international order.

We are witnessing the proliferation of regional trading arrangements and the EU has been a leader in the regional project. Regionalism is the coming together of a group of countries that may or may not be geographically proximate for a common purpose – usually, trade. While the Southern African Customs Union (SACU) is the oldest regional arrangement, the EU is perhaps the best known because of its relative success at economic, political and social integration. The EU remains the biggest global economy and a world leader in the liberalisation of commercial services and investment. Alongside the US, the EU is the largest trade partner for almost every other country in the multilateral trading system. It is a highly diverse and competitive market, and one which is very attractive as a region to other countries.

If the UK votes to leave the EU on 23 June, what will happen to our existing trade deals? The first issue to be addressed is leaving the EU, which is a type of preferential trade agreement in itself: a customs union. Article 50 of the Lisbon Treaty provides the legal basis for exiting the customs union. However, what is not accounted for is the impact that leaving the customs union will have on the concessions the UK currently enjoys by being part of the EU. When the World Trade Organisation (WTO) was created in 1995, the UK had been a part of the negotiations in the preceding Uruguay Round, albeit as part of the EU. In this regard, it is difficult to assess what concessions might be agreed for individual UK membership if Brexit becomes a reality. Negotiations for new concessions and market access might need to be approved by other WTO Members, and their agreement to such a schedule of concessions might not be forthcoming. (more…)

Legal implications of Brexit on UK Defence Procurement

Posted on June 20, 2016June 13, 2016 by legalresearch

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

Defence procurement may not be at the top of the Brexit agenda but it has courted some controversy in the press.[1] It has also been considered as part of the broader arguments about the impact of Brexit on the UK’s defence and security posture. [2] This blog hones in on a more mundane but no less important issue: what, if any, are the implications of Brexit for the legal regulation of defence procurement? There are at least two good reasons why it is useful to consider the legal position. Firstly, defence procurement, like public procurement, is now firmly within the legal remit of EU public procurement Directives. There is already an emerging discourse on the implications of Brexit for public sector procurement regulation; a perspective on defence procurement adds a further contribution.[3] Secondly, as will be discussed, the UK’s defence acquisition as a whole is undergoing unprecedented domestic reform. My ongoing research examines defence procurement regulation as part of this systemic whole and which is likely to be impacted by any change to the regulatory environment. (more…)

Would A Brexit Significantly Change The Way The English Public Sector Buys Supplies And Services?

Posted on June 17, 2016June 13, 2016 by legalresearch

By Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).

With a few days to go for the all important UK referendum on EU membership, it may be worth focusing the analysis on one of the issues that can affect trade between the UK and the EU to a very large extent: that is, the regulation of public contracts.

There has been some serious thought put into the potential implications of Brexit for the ways in which the UK public sector buys supplies and services—or, in technical terms, on the Brexit implications from a public procurement perspective. Academics, such as Dr Pedro Telles, and practitioners such as Michael Bowsher QC, Peter Smith, Roger Newman or Kerry Teahan have started to reflect on the likely consequences from a legal and business case perspective. (more…)

Brexit and collective labour rights

Posted on June 16, 2016June 13, 2016 by legalresearch

By Prof Tonia Novitz, Professor of Labour Law (University of Bristol Law School).*

There has been considerable concern expressed regarding the employment rights that British workers would lose by virtue of Brexit. But this is not straightforwardly the case in respect of collective labour rights. Although European Union (EU) directives offer some protection of collective labour rights, national trade union freedoms regarding collective action have arguably been undermined (rather than bolstered) by EU hard and soft law. This means that the worker and trade union case for resisting Brexit remains complicated. While the over-arching aim is to stay in the EU for the sake of many individual and some collective worker entitlements, reform remains on the agenda.

Significant collective labour rights could be lost should Brexit occur and the UK remove itself from the established social pillar of legislation established under EU law. EU directives protect information and consultation rights concerning redundancies and transfers of undertakings, as well as provide for collective representation through European works councils and in European companies. Further, collective agreements may shape the domestic application of EU norms such as working time or provide the basis for entitlements at work such as those for posted workers or workers taking parental leave. However, this is not the only possible narrative regarding collective labour rights in the EU. (more…)

Interpreting freedom from religion: A step too far?

Posted on June 13, 2016June 13, 2016 by legalresearch

By Caroline K Roberts, PhD Candidate (University of Bristol Law School).

If conference themes are any indication of ‘hot topics’ then ‘freedom from’ religion is certainly one. The past year has seen the ‘Freedom of (and from) Religion’ conference at the University of California and the Ecclesiastical Law Society’s ‘Freedom of/from Religion’ conference in London, at which Baroness Hale of Richmond presented the keynote address. And, in September 2016, the International Consortium for Law and Religion Studies (ICLARS) will be holding the ‘Freedom of/for/from/in Religion’ conference at the University of Oxford.

The language of ‘freedom from’ religion is not, however, just growing in academia. It is increasingly being used by practitioners, organisations and activists in discussions of the right to freedom of thought, conscience and religion. It is often claimed that if there is a right to freedom of religion, there must be an equal right to freedom from religion.

But what does ‘freedom from’ religion actually mean? And does it mean the same to everyone using the phrase? At the Law and Religion Scholars Network (LARSN) Conference, I took the opportunity to address these questions in my paper, entitled ‘Is there a right to be ‘free from’ religion under Article 9 of the European Convention on Human Rights (ECHR)?’. The following is a summary of that paper. (more…)

Commemorating Conchies: A time to remember the men who rejected military conscription in WW1

Posted on June 10, 2016June 12, 2016 by legalresearch

By Prof Lois Bibbings, Professor of Law, Gender and History (University of Bristol Law School).*

A hundred years ago general military conscription was introduced into Britain. The Military Service Acts of 1916 meant that men aged between 18 and 41 were deemed to have enlisted and decisions as to what happened to them were now in the hands of the state. However, in a controversial and seemingly contradictory move, the Act allowed men to be exempted from military service on the grounds that they had a conscientious objection to the undertaking of combatant service. These conscientious objectors (COs) deserve to be commemorated – and that is precisely what a series of events around the country are seeking to do.

Although no exact figures exist, Cyril Pearce, the brains behind the marvellous Pearce Register of British World War One Conscientious Objectors, estimates that there were 20,000 COs – a very small number as compared to the around 5 million men who joined the military, most of whom were conscripts. Objectors were a diverse group. Their widely varying perspectives on the Act and their consciences led them to take very different courses. What is clear though is that they displayed remarkable conviction and courage, both as individuals and collectively. (more…)

Testing the boundaries of fraud by abuse of position

Posted on June 6, 2016May 17, 2016 by legalresearch

By Dr Jennifer Collins, Lecturer in Law (University of Bristol Law School).

The Court of Appeal has delivered an important judgment in R v Valujevs [2015] 3 WLR 109, on the scope of fraud by abuse of position under section 4 of the Fraud Act 2006 (on which see J. Collins, ‘Fraud by Abuse of Position and Unlicensed Gangmasters’ (2016) 79 Modern Law Review 354). The importance of ensuring legal certainty in drafting a general fraud offence was emphasized when the Fraud Bill was debated in the House of Commons a decade ago (Hansard, HC 12 June 2006, col 549). Dominic Grieve MP’s concerns that fraud by abuse of position was ‘too widely drafted’, and would lead to ‘a catch-all provision that will be a nightmare of judicial interpretation’ (Standing Committee B, 20 June 2006, col 25) remain relevant to what has resulted in sections 1 and 4 of the Fraud Act 2006. Does R v Valujevs shed new light on the principled operation of the offence? And is the Court of Appeal’s interpretation in line with concerns at the Committee stage to safeguard vulnerable categories of persons (Standing Committee B, 20 June 2006, col 26)? (more…)

Let’s Take Back Control – Or Should We?

Posted on June 2, 2016June 1, 2016 by legalresearch

By Dr Phil Syrpis, Reader in Law (University of Bristol Law School).

The EU referendum campaign has been wide-ranging; with the debate largely focusing on the economic aspects. Arguments which focus on democracy have, however, tended to be the preserve of the leave campaign. The rallying cry to ‘take back control’ of ‘our’ laws and borders, has become something of a mantra.

My aim here is to assess the leave campaign’s case. I consider the impact which the EU has on the freedom of movement of the UK government; and evaluate the extent to which continued membership of the EU represents a threat to democracy in the UK. (more…)

Some thoughts on European and national non-discrimination law and Brexit

Posted on May 30, 2016March 9, 2018 by legalresearch

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).*

European non-discrimination law is a great example of how legal ideas travel around the globe and are modified and improved in the process. As well demonstrated by Fredman[1] and Schiek,[2] non-discrimination law did not originate in Europe nor can the European influence be negated. For example, the concept of indirect discrimination can be traced back to international law and was also pioneered in the US case of Griggs v Duke Power,[3] which challenged under the Civil Rights Act 1964 employment practices that required High School diplomas in order to access specific jobs. This US legal development then inspired European Common Law jurisdictions—most notably the UK—to incorporate similar concepts in their national law (see e.g. Sex Discrimination Act 1975 and Race Relations Act 1976), and the concept of indirect discrimination finally reached the EU in the early 1980s when the Court of Justice of the European Union (CJEU) explicitly referred to the Griggs in its Jenkins Judgment,[4] a case which also originated in the UK.

However, this initial influence from the UK and other common law jurisdictions did not halt in this development. Rather, what started as a relatively insignificant equal pay provision in the Treaty of Rome (Article 119 EEC) and a political compromise between Germany and France,[5] has developed into a large equality framework protecting the characteristics of sex, race and ethnic origin, religion and belief, age, disability, and sexual orientation (e.g. Directives 2000/43, 2000/78 and 2006/64) and goes beyond employment discrimination by also tackling sex and race discrimination within the access to and supply of goods and services (Directives 2000/43 and 2000/113). The 2000 directives expanding the personal scope of EU non-discrimination law were particularly affected by Anglo-Dutch intellectual thought and influence,[6] as jurisdictions that had most significant experience with non-discrimination law covering a wide number of protected characteristics. These new directives, alongside the CJEU interpretation of all the directives and equal pay provision (now Article 157 TFEU), then in turn influenced the law of the Member States including the UK legal framework. (more…)

Brexit and Worker Rights

Posted on May 27, 2016May 26, 2016 by legalresearch

By Prof Michael Ford QC, Professor of Law (University of Bristol Law School).

It is now pretty well-known that most of the employment rights in the UK are guaranteed by EU law—the principal exceptions are unfair dismissal and the national minimum wage —as I explained in a recent advice for the TUC. UK legislation on race discrimination, sex discrimination, equal pay and disability discrimination may have pre-dated EU Directives in these areas, but EU law led to protection against other forms of discrimination, such as detrimental treatment owing to age, sexual orientation and religion and belief. Over the years EU law has greatly supplemented or overwritten the domestic regime, almost always in favour of workers’ rights – removing limits on damages, recognising that pregnancy discrimination did not need a comparator, changing rules on the burden of proof, allowing equal pay claims for work of equal value, protecting against harassment and post-employment victimisation. I could go on.

Now extending far beyond discrimination, the EU-guaranteed rights include almost all the working time protections, including paid annual leave and limits on working hours; the protection of agency, fixed-term and part-time workers; rights on the transfers of an undertaking (extremely significant in a world dominated by out-sourcing); many rights to information and collective consultation; the most important health and safety regulations; the right to a written statement of terms of employment; protections in insolvency derived from the EU Insolvency Directive, which led to important extensions to the state guarantee of pension benefits and protection of other claims where the employer is insolvent (no doubt to be in play in relation to British Home Stores); and EU data protection law, the driving force behind the Information Commissioner’s Employment Practices Code, providing some controls over the monitoring and surveillance of workers. (more…)