University of Bristol Law School Blog – Page 38 – A window into the legal research carried out at the Law School

Universities and Counter-Terrorism in the UK: ‘Educators Not Informants!’, ‘Boycott Prevent!’?

Posted on May 23, 2016May 19, 2016 by legalresearch

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

How – consistent with democracy, human rights, the rule of law, and the preservation of cosmopolitan community cohesion and public confidence in law and its enforcement – should the UK respond to the threat posed by terrorism and, in particular, how should it seek to prevent people, especially vulnerable young people, from being enticed into it? These questions have arisen in a particularly acute form as a result of the Counter-Terrorism and Security Act 2015 which, amongst other things, imposes a legal duty upon schools, universities, charities, the NHS etc – but not directly upon their staff individually – to ‘have due regard to the need to prevent people from being drawn into terrorism.’ This may include banning some activities, regulating others, and/or taking appropriate steps to identify those who may be at risk and to refer them to appropriate welfare agencies.

The policy of the University and College Union (UCU) – which represents over 110,000 academic and other staff in higher and further education in the UK – is to boycott the requirements of the Act and the wider ‘Prevent strategy’ of which it is a part, on the grounds that they seriously threaten academic freedom, stifle campus activism, require staff to engage in racial profiling, legitimize Islamophobia, and jeopardize safe and supportive learning environments. Hence the slogans ‘Educators Not Informants!’, ‘Boycott Prevent!’, ‘Prevent Prevent!’ and ‘I Dissent from Prevent!’ which circulate in and around the campaign. This blog summarises work in progress – part of a much larger project concerning terrorism, counterterrorism and human rights in the post-9/11 UK – which argues that the UCU boycott is not only illegal, illegitimate and deeply flawed, but also potentially dangerous and irresponsible.

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Time to listen: A spotlight on mental health

Posted on May 19, 2016October 1, 2019 by legalresearch

By Dr Judy Laing, Reader in Law (University of Bristol Law School).*

Recent research indicates that a large percentage of patients living with severe mental health problems do not feel actively involved in their treatment plans. In this blog, Dr. Judy Laing outlines how this runs contrary to basic human rights principles and how it’s time that patients’ rights and voices are put firmly at the centre of all decision-making about their care, treatment and admission to hospital. (more…)

Climate change and the new economy

Posted on May 18, 2016May 12, 2016 by legalresearch

By Prof Bronwen Morgan, Professor of Socio-Legal Studies (University of Bristol Law School).*

As 2016 lengthens its stride, the ambivalent euphoria of the Paris agreements on climate change gives way to a sense of ‘where to from here?’ While the technicalities of the Kyoto Protocol were never easy fodder for inspiring collective action, the new terrain is arguably even more forbidding on that score. Each country will submit Nationally Determined Contributions, a welter of sector-specific plans and measures which will be assessed, monitored, analysed and reviewed by carbon management professionals via procedures still being fought over. This is, from the perspective of global climate treaty processes, a ‘bottom-up’ approach to responding to climate change.

What if, instead, we were to turn our collective attention to a very different conception of ‘bottom-up’, a grass-roots process of building a new economy as a response to climate change? Not the new economy of the tech start-up world, itself an extension of arguably over-optimistic hopes that the economy-as-usual can, with the help of science and technology, provide products or processes that will decouple growth and carbon emissions. No, the ‘new’ here is more about the way ‘economy’, ‘market’ and ‘exchange’ can be re-imagined so that they move away from the extractive processes that damage our ecology. Innovation is socio-ecological more than technological, internalising a more generative relationship to the resource base upon which production and consumption depend. (more…)

The EU, Brexit and nature conservation law

Posted on May 16, 2016May 16, 2016 by legalresearch

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

The EU plays a fundamental role in shaping the environmental law regimes of its Member States and that of the UK is no exception. A significant proportion of current domestic environmental law derives from EU Regulations (that automatically become part of English law) and EU Directives (that are implemented through national legislation).

Nature conservation law, i.e. the legal regime used to protect environmentally significant habitats and species, is a case in point and the focus of this blog. Conserving nature is key not only from a purely biodiversity standpoint but also from an ‘ecosystem services’ perspective. Ecosystem services are the benefits nature brings to the environment and to people, including supporting services (e.g. nutrient cycling), provisioning services (e.g. food), regulating services (e.g. carbon capture) and cultural services (e.g. recreation). (more…)

For Africa, the International Community is a Myth

Posted on May 9, 2016April 12, 2016 by legalresearch

By Dr Foluke Ifejola Ipinyomi, Teaching Associate (University of Bristol Law School).

This post is based on an article* in which I argue that ignoring African particularity reduces the effectiveness of the international community and almost certainly ensures that international law is never obeyed… except in cases of self-interest.

What is the International Community?

At the sight of any potential cross-border malaise – disease, conflict, terrorism – calls are made to the international community to act. Why do the calls to the international community not go through? Is there a faulty connection? Or have we run out of airtime? The answer is quite simple. We are mostly dialling a wrong number. Depending on who is making the call, calls to ‘the international community’ could be obliquely referring to all states, all humanity, the UN, the US and Europe or states with liberal democracies. This identity crisis almost always results in a lot of buck-passing. As the poem goes ‘Everybody thought that Anybody could do it, but Nobody realized that Everybody wouldn’t do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.’

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The cost of using the Family Court

Posted on May 2, 2016April 13, 2016 by legalresearch

By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).*

The Family Court system costs a lot to run. Until 2008 much of the cost of running the courts came from taxes, but increasingly litigants are expected to foot the bill. So the court system cannot be thought of as simply part of securing a Just Society, like the Police, the Armed Services and Parliament, all of which are paid for from taxes. Rather courts exist as a service for those who want to litigate.

Court fees have been raised repeatedly, and for some types of proceedings, including divorce, actually exceed what it costs to provide the service. The court fee for divorce is £550. Applicants for divorce subsidize other cases where the full economic cost cannot be charged. The courts have a monopoly over divorce, which is secured by the criminal law! Remarrying whilst still married is a crime – bigamy.

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Conflicting jurisdiction and arbitration agreements: Exmek Pharmaceuticals SAC v Alkem Laboratories Ltd

Posted on April 25, 2016April 12, 2016 by legalresearch

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

A previous blog addressed certain problems surrounding the interpretation of arbitration clauses, particularly in relation to a lack of transparency concerning the parties’ choice of the seat of arbitration. This blog continues the same theme – albeit in the context of different interpretative questions.

Although the notion of the ‘pathological’ arbitration clause has been part of the international arbitration literature for nearly half a century, difficulties generated by poor drafting continue to bedevil both arbitral tribunals and the courts. Notwithstanding the availability of a wealth of clear and helpful advice (see, for example, Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4^th edn, 2014), a surprising number of those who draft commercial contracts seem to be either unaware of the available advice or incapable of heeding it. (more…)

Can English universities adopt a more commercial approach and stop complying with EU public procurement law?

Posted on April 18, 2016April 12, 2016 by legalresearch

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

Since the introduction of student fees, and particularly after the 2011 White Paper ‘Students at the Heart of the System’, English universities have been exposed to increasing commercial pressures. This has encountered significant opposition, and both the path of reform of the higher education sector and the resistance against it are echoed overseas.

However, this trend will not reverse in the immediate future, whatever the outcome of the consultation based on the 2015 Green Paper ‘Fulfilling our Potential: Teaching Excellence, Social Mobility and Student Choice’. English universities will continue needing to adapt to increasing commercial pressures. However, they seem to have the cards stacked against them. English universities are not entirely free to pursue whichever commercial approaches they see fit. Their activity is highly regulated, and they are bound by significant constraints, both under domestic and EU law.

One area of increasing controversy is the possibility for English universities to move away from what are considered burdensome and restrictive public procurement procedures and adopt a strict commercial approach to the way the purchase supplies, services and commission works. Such flexibility would allow them to choose their suppliers and contractors more freely, reduce the red tape associated to their day to day operations, and some claim that this would unleash innovation. Unsurprisingly, this is catching the attention of practitioners in the field, and the Higher Education Procurement Academy is prioritising this issue. The trouble is that, while some practitioners have made claims supporting the adoption of such a commercial approach, others consider that reforms in the English higher education system are insufficient to warrant such a change.

In order to tackle these issues, together with my colleague Andrea Gideon, I looked in detail into the constraints that EU public procurement law impose on English universities. In our paper*, (more…)

Homelessness internal reviews – The long view

Posted on April 13, 2016March 22, 2016 by legalresearch

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

Applicants for homelessness assistance who are aggrieved by a local authority’s discretionary decision against their interests, can request a review of that decision. These reviews are an incredibly important part of the homelessness decision-making process – a negative decision made by a local authority can leave an applicant with what one Judge has described as the “mark of Cain”. An applicant who does not seek a review cannot appeal a negative decision; if the applicant does appeal their decision, but fails to make all the relevant points, judicial guidance is that such matters cannot be raised on a subsequent appeal. So, both substance and procedure are in play at this crucial stage of internal review.

Since the early 1990s, myself and my colleagues Caroline Hunter and Simon Halliday, (both currently at York Law School) have conducted research in to homelessness internal reviews—on which we published The Appeal of Internal Review. Law, Administrative Justice and the (non-) Emergence of Disputes (Hart 2003) and ‘Adjudicating the implementation of homelessness law: The promise of socio-legal studies’ (2006) 21(3) Housing studies 381. Our research has been both qualitative and quantitative. (more…)

What is Legal Geography?

Posted on April 11, 2016March 22, 2016 by legalresearch

By Prof Antonia Layard, Professor of Law (University of Bristol Law School) *

Legal geography is an exciting and emerging cross-discipline, exploring how people and places co-constitute the world. It proceeds from the premise that the legal co-creates the spatial and the social while the social and the spatial co-create the legal. There is reflexivity. Once we accept this premise, however, the hard work begins. How do we work out what ‘work’ legal provisions and practices are doing to create spaces (national, regional, local or private) and how do spatial and social settings inform the application of legal rules and principles?

In a piece that was commissioned by Geography Compass, both to provide an overview of where legal geography is today as well as to consider where it is heading, Luke Bennett and I developed the idea of becoming a ‘spatial detective’. We suggested that there is much to learn by both legal scholars and geographers becoming ‘spatial detectives’ – of learning, Sherlock Holmes-like, to search out the presence and absence of spatialities in legal practice, and of law’s traces and effects embedded within places. To make this argument, we revisited the debates around the case of R –v Dudley & Stephens ((1884) 14 QBD 273, still a classic in Law Schools).

On 6^th September 1884, three sailors arrived in Falmouth and reported to the local Customs House, resenting sworn statements there about their recent activities. One month later, these candid statements became evidence in their trial for murder held at the Devon & Cornwall Winter Assizes, in Exeter. This case, R –v Dudley & Stephens, proved to be one of the most contentious legal decisions in English legal history. For the courts ruled that the killing and eating of a cabin boy by these sailors, was a crime under English Law. This was so, even though the sailors would have died had they not done so, as they drifted helplessly aboard a lifeboat in the South Atlantic, 1600 miles off the Cape of Good Hope. (more…)