Tag Archives: research nutshell

Dignity or Discrimination: What paves the road towards equal recognition of same-sex couples in Europe?

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

EU and Rainbow flag

Dr Jule Mulder’s article ‘Dignity or Discrimination: What paves the road towards equal recognition of same-sex couples in Europe?’ has been published in the Journal of Social Welfare and Family Law. The article explores whether the principle of dignity can help advance the Court of Justice of the European Union’s (CJEU) approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering dignity-based arguments in a comparative perspective.

The European courts’ approach, mostly focusing on the concept of direct discrimination, seems insufficient to ensure the equal treatment of same-sex couples. The comparative experience, successfully invoking the dignity-principle to advance same-sex couples’ rights, challenges us to review the EU non-discrimination law and invites us to reconsider the concept of dignity and its value to foster substantive equality and equal treatment within the EU legal framework. Accordingly, recognising the limited reach of the CJEU current approach that focuses on direct sexuality discrimination only and adheres to the comparator paradigm, the article analyses possibilities to challenge de facto discrimination within the EU legal framework going beyond the concept of direct discrimination. In doing so, the article evaluates the potential of the dignity-centred approach within the context of EU equality law. Hence, the article evaluates whether the CJEU case-law’ limited substantive reach could be remedied by a more detailed engagement with the concept of dignity to provide substantive meaning to the analysis. Ultimately rejecting the usefulness of dignity, the article proposes that a more consistent application of the concept of indirect discrimination could push courts towards legal recognition of rights of same-sex couples.  Continue reading

Bad Work: the Government’s Response to the Taylor Review

By Dr Katie Bales, Prof Alan Bogg, Prof Michael Ford QC, Prof Tonia Novitz and Ms Roseanne Russell, Centre for Law at Work (University of Bristol Law School).

© Alexander Baxevanis

Don Lane was a DPD courier, whose written contract described him as an ‘independent contractor’, aiming to ensure that he was neither an ‘employee’ nor a ‘worker’ and therefore was not entitled to the legal rights such as  protection against dismissal, the national living wage, paid holidays, or even statutory sick pay. He suffered from diabetes and, having already been fined £150 for attending a hospital appointment earlier in the year, died in January 2018 after working through the Christmas season despite illness. His employers knew that he had suffered from a diabetic collapse at work but adopted a system which strongly discouraged him taking any time off for sickness: no income for sick leave and, worst of all, fines. The media has documented other examples of the abusive treatment of ‘gig’ workers in courier companies such as Hermes and Amazon.

In July 2017, ‘Good Work’, Matthew Taylor’s Review of ‘Modern Working Practices’ was published. The Report aimed to promote ‘good work’ through the adoption of 53 recommendations. In February 2018, the Government published its response, also entitled Good Work, mostly accepting the Review recommendations, but ducking their implementation by offering further ‘consultation’. Accompanying the thinly reasoned Response were four hastily drawn up consultation papers, on employment status, transparency in the labour market, agency workers and enforcement of employment rights.

While the Government says it is contemplating ‘the single largest shift in employment status since the Employment Rights Act in 1996’, its focus is on clarifying rather than extending its ambit. The reason seems to lie in its endorsement of the ‘flexibility’ of the current UK labour market, following Taylor’s lead, enabling individuals and employers ‘to make the choices that are right for them’. The notion that such choices are structurally constrained is ignored; rather the blame is laid at the door of the exceptional ‘bad’ employer. While some improvements are contemplated, they do not broaden the scope of access to statutory rights at work in a way that would have helped Don Lane or will prevent other forms of abuse. Continue reading

Planning Law and the Housing Crisis in Bristol

By Mr Ed Burtonshaw-Gunn, PhD Researcher and Land Law Tutor (University of Bristol Law School).

The housing crisis ignites local and national media coverage. It is near impossible to pick up a newspaper or turn on the evening news without reading or hearing a story about the nation’s obsession with (or need for) housing. Soaring house prices, new housebuilding targets championed by politicians or think tanks, or calls to abolish on the much-loved green belt land protection are all on the news agenda. Yet, while covering these stories the media often focus on the effects of the housing crisis, and not the root cause(s). My research is examining how planning law, policy, and practice, shape the production of housing in Bristol, and argues that the housing crisis can be fundamentally reduced to one major factor. For 40 years, the supply of new housing has failed to meet nation’s demand.

On the 6th December, I was invited to present my research to the Property Network of the Bristol Junior Chamber. The audience was made up of a range of Bristol housing stakeholders; property and planning lawyers, planning engagement and public-relations consultants, and housing association managers. The presentation covered three areas; the national housing crisis, house building in Bristol, and a prominent finding from my research, the importance and methods of delivering affordable housing in Bristol. Continue reading

New book on enforcement of labour standards through public procurement

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

Smart procurement aims to leverage public buying power in pursuit of social, environmental and innovation goals. Socially-orientated smart procurement has been a controversial issue under EU law. The extent to which the Court of Justice (ECJ) has supported or rather constrained its development has been intensely debated by academics and practitioners alike. After the slow development of a seemingly permissive approach, the ECJ case law reached an apparent turning point a decade ago in the often criticised judgments in Rüffert and Laval, which left a number of open questions.

More recently, Bundesdruckerei and RegioPost have furthered the ECJ case law on socially orientated smart procurement and aimed to clarify the limits within which Member States can use it to enforce labour standards. This case law opens up additional possibilities, but it also creates legal uncertainty concerning the interaction of the EU rules on the posting of workers, public procurement and fundamental internal market freedoms. These developments have been magnified by the reform of the EU public procurement rules in 2014.

This freshly-released book assesses the limits that the revised EU rules and the more recent ECJ case law impose on socially-orientated smart procurement and, more generally, critically reflects on potential future developments in this area of intersection of several strands of EU economic law. The book includes four contributions by Bristol scholars, including Prof Phil Syrpis‘ perspective from an EU constitutional law standpoint, Prof Tonia Novitz‘s reflections on collective bargaining and social dumping in posting and procurement, Ms Nina Boeger‘s thoughts on public procurement and business for value, and my own views on the competition and State aid implications of the use of procurement to enforce labour standards.

The collection of essays includes additional insights by colleagues at Oxford, Cambridge, Turin, Birmingham, Leicester, Warsaw, and the UNCITRAL, and is the result of a conference held at the University of Bristol Law School in May 2016. The papers have been constantly updated and include an assessment of the agreed revision of the Posted Workers Directive in the fall of 2017.

Full details of the book are as follows: A Sanchez-Graells (ed), Smart Public Procurement and Labour Standards–Pushing the Discussion after RegioPost (Hart, 2018).

Sex and the City Culture

By Ms Roseanne Russell, Lecturer in Law (University of Bristol Law School).

Last week’s reports of the Presidents Club charity dinner once again revealed the troubling culture of the City: ‘that weird mix of cutting-edge high finance and caveman misogyny’ (Patrick Jenkins, Financial Times, 24 January 2018). Journalist Madison Marriage’s exposé recounted how 130 ‘hostesses’ were recruited for a fundraising dinner to be attended by 360 men from the worlds of politics, business and finance (Financial Times, 23 January 2018). Although it is not clear who attended, press reports have stated that the guest-list included senior executives from well-known corporate groups, bankers and hedge fund managers.

The well-intentioned aim of the evening’s auction was to raise money for charity. According to the Club’s website, ‘over the years, esteemed members of the investment, real estate, sports, entertainment, motor industry and fashion world have come together to support and raise millions of pounds for the trust in its work to help as many worthy children’s causes.’ Marriage’s report, however, painted a picture of the highly sexualised City culture that Linda McDowell so vividly captured in her 1997 book Capital Culture and by the Fawcett Society in its 2009 report on Sexism and the City. While ‘hostesses’ were apparently groped, subjected to lewd comments, and, in one instance, asked to join an attendee in his bedroom, the men attempted to outdo each other’s bids for lots including ‘an exclusive private night’ at a strip club, plastic surgery to ‘take years off your life or add spice to your wife’, and a combined lot of lunch with the Foreign Secretary and tea with the Governor of the Bank of England. The winning bid for this last lot was reportedly £130,000. The hostesses were asked to dress as though attending a ‘smart, sexy place’ and asked to sign a non-disclosure agreement (“NDA”) relating to the evening. Continue reading

Will Judicial Deference to Medical Opinion Undermine the Patient-Focused Standard of Informed Consent to Medical Treatment?

By Mrs Louise Austin, Associate Teacher in Medical Law and PhD Candidate in Law (1+3 ESRC) (University of Bristol Law School).

© Rookuzz..

Following the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board, which moved away from a model of medical paternalism and established a model of patient autonomy for informed consent to medical treatment, the High Court has recently had the opportunity to apply the new test in Grimstone v Epsom and St Helier University Hospitals NHS Trust. This blog post provides a summary of my case commentary in the Medical Law Review exploring this decision and its implications, which is now available as ‘Grimstone v Epsom and St Helier University Hospitals NHS Trust: (It’s Not) Hip To Be Square’. Continue reading

Six myths about the ‘Prevent duty’ in universities

By Prof Steven Greer, Professor of Human Rights, and Dr Lindsey Bell, Lecturer in Law (University of Bristol Law School).

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

Contractual interpretation: from the Tudors to Lord Hoffmann

By Ms Joanna McCunn, Lecturer in Law (University of Bristol Law School).

© Folger Shakespeare Library

Contractual interpretation continues to be a controversial topic. In a recent speech, Lord Sumption attacked Lord Hoffmann’s judgment in Investors Compensation Scheme [1998] 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

Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?

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

By Patrick Marioné

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.

From the “Democratic Deficit” to a “Democratic Surplus”: Constructing Administrative Democracy in Europe

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