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). Continue reading
By Ms Joanna McCunn, Lecturer in Law (University of Bristol Law School).
Contractual interpretation continues to be a controversial topic. In a recent speech, Lord Sumption attacked Lord Hoffmann’s judgment in Investors Compensation Scheme  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. Continue reading
By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School).
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.
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. Continue reading
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). Continue reading
After nearly two decades, the case overload afflicting the European Court of Human Rights has finally been reduced to more manageable proportions. However, it is too early to tell if this welcome trend will be sustained. But, if it is, the authors of this article argue it will have been achieved at considerable cost because, in the attempt to defend it, the cherished right of individual petition has, paradoxically, been undermined.They also claim that the Court has been confirmed as a“human rights small claims tribunal”, that structural violations are now more likely to be institutionalised than resolved, and that a golden opportunity to improve the protection of human rights across the continent has been missed.
Greer & Wylde develop these arguments in full in their publication ‘Has the European Court of Human Rights Become a “Small Claims Tribunal” and Why, If at All, Does it Matter?‘ (2017) 2 European Human Rights Law Review 145-154.
By Dave Cowan, Professor of Law and Policy (University of Bristol Law School).
Following a commission from Shelter, the housing charity, Dave Cowan and Edward Burtonshaw-Gunn, University of Bristol Law School, and Helen Carr and Ed Kirton-Darling, University of Kent Law School, conducted research into the law and practice around housing standards. Their conclusions – which draw on 940 responses to a questionnaire from professionals, landlords and occupiers – make for stark reading about the deficiencies in our current law. This is the Executive Summary to the report. The full report can be found at http://www.bristol.ac.uk/law/research/grenfell/.
The law relating to health and safety in people’s homes is piecemeal, out-dated, complex, dependent upon tenure, and patchily enforced. It makes obscure distinctions, which have little relationship with everyday experiences of poor conditions. Tenants wanting to remedy defects face numerous and often insurmountable barriers to justice. The law needs to evolve; no longer should occupiers be treated as posing health and safety risks; instead they should be treated as consumers of housing with enforceable rights to ensure minimum standards are adhered to. The state needs to accept its role as the primary enforcer of those standards.
Not only does the law require reform, there also needs to be a cultural change, so that those responsible for the health and safety of occupiers become pro-active in fulfilling those responsibilities.
We recommend a new Housing (Health and Safety in the Home) Act which is tenure neutral, modern and relevant to contemporary health and safety issues, and which encourages and provides resources for pro-activity by statutory authorities. In particular, the Act should
- Strengthen duties on local authorities to review housing and enforce housing health and safety standards
- Introduce a legal duty to review and update all guidance relating to health and safety in the home every three years
- Provide routes for occupiers to require local authorities to carry out housing health and safety assessments
- Remove unnecessary legal barriers preventing enforcement action being taken against local authority landlords and remove unnecessary procedural barriers which undermine the current regime
- Consolidate and up-date existing law
- Place clear responsibilities on bodies for breaches of fire and building regulations
- Provide routes for occupiers to hold landlords and managers to account for fire safety provisions
- Strengthen remedies against retaliatory eviction
Such an Act, either working alongside or incorporating a Homes (Fitness for Human Habitation) Act, would not only improve health and safety outcomes for occupiers, it would signify also that, as a society, we accept responsibility for those standards.
By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School).
October 2017 marked the publication of the Edward Elgar Research Handbook on EU Tort Law. This is part of the series of Research Handbooks in European Law published by leading Law publishing house, Edward Elgar, which offer authoritative reference points for academics, students, and practitioners studying or working in EU law, private law and comparative law. The aim is to be comprehensive and informative, but also accessible for those approaching the subject for the first time.
The Research Handbook on EU Tort Law is edited by University of Bristol Professor of Comparative Law, Paula Giliker, but also contains contributions from other Bristol academic staff including Dr Jule Mulder, Dr Albert Sanchez-Graells and Professor Keith Stanton, together with 14 other contributions ranging from the UK and Ireland to France, Germany, the Netherlands and Hungary. This truly international project seeks to examine the extent to which EU-sourced law (directives, judicial decisions, regulations, Treaty provisions) have created new rights in the law of tort on which claimants can rely in either the Court of Justice of the European Union (CJEU) or national courts.
The variety of areas of law in which EU-sourced tort law can be found is striking, as highlighted in Giliker’s introductory chapter, ‘What do we mean by “EU tort law”?’ Contributors discuss actions in the CJEU (Gutman), State liability for breach of EU law (Granger), product liability (White), competition law (Odudu and Sanchez-Graells), data protection law (Stauch), employment law (Mulder), insurance law (Davey), financial services law (Stanton) and the law relating to unfair commercial practices (Riefa and Saintier). Further contributions examine what we mean by compensatory remedies in EU law (Leczykiewicz), whether we can identify a culture of EU tort law (Niglia and Knetsch) and the possibility of harmonising European tort law more generally (Martin-Casals, Blackie and Faure). Finally, Giliker examines the future of EU tort law, both as a substantive area of law and as a concept in need of clarification and further academic debate. Continue reading
On 4 October 2017, we held an event at the University of Bristol Law School, funded by PolicyBristol, considering the dynamics of negotiation, implementation, and enforcement of North-South trade agreements.
The first panel (Clair Gammage, Maria Garcia and Tonia Novitz, chaired by Phil Syrpis) examined the external policies of the European Union (EU) particularly in the context of regionalism and free trade agreements (FTAs). The significance of power disparities between trading partners in the negotiation process was considered and it was argued that true ‘partnerships’ in trade will be established through an inclusive and participative approach, as advocated by Clair Gammage in her book on North-South Regional Trade Agreements as Legal Regimes (Edward Elgar, 2017).
The second panel (Emily Jones, Sophie Hardefeldt and Gabriel Siles-Brügge, chaired by Tonia Novitz) examined how the UK could – in the event of Brexit – depart from or improve on the practices of the EU. Issues regarding human rights protections, development and transparency were considered, echoing many of the themes emerging from the discussion of the first panel. Continue reading
By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School) and former President of the British Association of Comparative Law.
The British Association of Comparative Law (BACL) held its annual seminar, jointly with the Irish Society of Comparative Law, at University College, Dublin on 5 September 2017. The joint seminar was chaired and organised by Professor Paula Giliker. To celebrate BACL’s first annual seminar in Ireland, the seminar reflected on the relationship between UK and Irish law in the fields of land law, banking regulation, language legislation and consumer law. The seminar was sponsored by publishers, Intersentia.
The seminar sought to examine different features of the relationship between Irish and UK law: the tensions of the past, the similar problems faced by two common law jurisdictions in the light of a global banking crisis, linguistic diversity and demands for consumer law reform and the future, with one jurisdiction remaining within the European Union and the other deciding to leave. Continue reading