think piece – Page 6 – University of Bristol Law School Blog

Transparency in public procurement is necessary, but not for all to see

Posted on January 30, 2017January 19, 2017 by legalresearch

By Dr Vitali Gretschko, Head of the Market Design Research Group (ZEW Mannheim) and
Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).*

The airport Berlin-Brandenburg, Stuttgart 21, and the Elbphilharmonie have one thing in common. Irregularities in the procurement process and delays in execution led to immense cost explosions to be covered by taxpayers. Thus, given the risks of corruption, favouritism and misuse of public funds, the award and management of public contracts requires a high level of scrutiny to avoid mismanagement and waste.

Moreover, even when things go well, improvements in public procurement law can have significant effects. Today, over 250 000 public authorities in the EU spend around 14 per cent of the GDP on the purchase of services, works, and supplies. Even small relative efficiency gains through carefully crafted rules can therefore result in savings in the billions. Therefore, the design of procurement rules need to reach a balance between safeguarding economic efficiency through competition and ensuring the proper level of transparency and accountability. (more…)

December’s European Council meeting: No country for Social Europe

Posted on January 9, 2017December 29, 2016 by legalresearch

By Mr Konstantinos Alexandris Polomarkakis, PhD Candidate and Teaching Assistant (University of Bristol Law School).

The European Council is among, if not the most important of, the pivotal institutions of the EU, mapping out its direction for the near term. Its meetings act as the wayfinding system for the EU policies that are to be drafted and discussed in the coming months, affecting crucial issues that have been considered by the Member States’ leaders as pertaining to the Union’s top priorities. It sets the tone that the Member States as well as the rest of the EU institutions should follow.

In that regard, the latest European Council meeting in Brussels on December 15 touched upon the most pressing issues Europe is faced with at the moment. Managing migration flows and the Union’s asylum policy, ensuring an effective application of the EU-Turkey statement, deepening the common European security and defence policy while at the same time complementing the pertinent NATO mechanisms, the negotiation process on a settlement for Cyprus, as well as the future of the EU-Ukraine Association Agreement in the aftermath of the Dutch referendum in April, and the situation in Syria, all were at the spotlight of the summit. Even Brexit was dealt with by the means of a declaration following an informal meeting of the EU27.

On top of these issues, a whole section of the meeting’s conclusions was dedicated to what was designated as ‘economic and social development, youth’. This is, at first glance, a welcome addition, considering the uncomfortable position the EU is currently sitting at, with high levels of discontent, and, consequently detachment from the European project by its citizens, manifested in the recent public opinion polls and the rise of –primarily far-right- populism in its territory. Social Europe could be a vehicle, which if employed effectively, has the potential to revive the long-lost interest towards and engagement with the EU. (more…)

What is the point of Business?

Posted on December 5, 2016 by legalresearch

By David Hunter, Consultant, Charity & Social Enterprise Department (Bates Wells Braithwaite LLP) and Knowledge Exchange Fellow (University of Bristol Law School)[1] and Ms Nina Boeger, Senior Lecturer in Law and Director of the Centre for Law and Enterprise (University of Bristol Law School).

Businesses are, in some respects, like cement. They are an integral part of the society we inhabit, and yet for the most part invisible to us as tangible entities. We give them little thought, but our lives would be very different were we to wake up to a world without either.

In April 2016, the UK government did invite us to think about the nature of business though as part of what it called a Mission-led Business Review. It set up an Advisory Panel and ran a public consultation and, seven months on, the Panel has reported back to the government with its recommendations[2]. The timing is interesting, with the review commencing when David Cameron was still Prime Minister, before the UK’s Referendum on EU membership and the US election, but the publication of the Panel’s findings coming when those events have demonstrated a clear sense of public discontent with the status quo.

What was the Review about, what is a ‘mission-led business’ and what are the likely responses to and impact of the Panel’s findings? (more…)

Culture in the banking regulators: the need for challenge

Posted on November 21, 2016November 11, 2016 by legalresearch

By Dr Holly Powley, Lecturer in Law (University of Bristol Law School).

In the aftermath of the financial crisis, a debate has been raging about the culture of financial services institutions – both in terms of how individuals working with financial institutions conduct themselves, but also on attitudes towards risk-taking within these institutions. Given that banks are now considered to provide consumers with a service that is essential to the operation of the modern economy, this is an important debate.

However, those tasked with regulating and supervising the banking sector haven’t escaped this scrutiny either. If the UK is to avoid a future financial crisis of the magnitude experienced between 2007 and 2009, there also needs to be a culture change within the institutions tasked with overseeing the UK’s financial services sector. The regulatory bodies need to be capable of challenging themselves, their policies, and the institutions they are tasked with supervising: they need to question the status quo. This means a move away from the ‘light touch’ approach that encompassed the Financial Services Authority’s (FSA) regulatory philosophy, avoiding ‘box ticking’ and introducing the exercise of judgement when making decisions about the supervision and regulation of the banking sector. Before the financial crisis, regulators didn’t challenge the conventional wisdom. It was believed that markets were stable, and that institutions were unlikely to fail. There was very little focus on financial stability issues, a point reflected by the fact that (as highlighted in the report on HBOS’s failure) only one of 61 issues discussed by the FSA’s board in the build up to the crisis related to financial stability. The crisis itself highlighted the flaws in that approach. To avoid this in the future, regulators have to ask difficult questions of themselves, and of the regulated sector. (more…)

Brexit and Parliament: Doubting John Finnis’s Dualism

Posted on November 16, 2016 by legalresearch

By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).

The news that the appeal will be heard by a full panel of 11 Justices of the Supreme Court confirms that the High Court’s ‘Brexit Judgment’ is of the highest constitutional significance. So the attention devoted to the judgment by eminent constitutional lawyers is hardly surprising. One powerful argument against the judgment, which is attracting a growing number of supporters, is made by Professor John Finnis in papers for the Judicial Power Project.

Finnis argues that the court mistakenly assumes that EU rights are ‘statutory rights enacted by Parliament’. On his view, the European Communities Act 1972 simply provides a means for making EU law rights enforceable in English law; they are not ‘statutory rights’ as such. Finnis draws an analogy with double-tax treaties. These serve to relieve individuals with connections to more than one country from being taxed twice on the same income. In order for this to apply, both state parties must maintain the international agreement. If one of them gives notice to rescind, as they are typically entitled to do under the treaty, the immunity lapses. In dualist systems such as the UK, there is thus an asymmetry between the creation and removal of rights. There are two conditions precedent for the enjoyment of any new right: an international treaty conferring that right, and an Act of Parliament giving effect to that treaty in domestic law. Both elements are needed to create the right, but if either condition precedent fails, so does the right. The mere fact that Parliament has to provide the domestic conduit does not stop the Government from turning off the international tap.

I am not convinced that this argument works in the context of the UK-EU relationship. (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…)

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…)

It’s time for change: World Mental Health Day 2016

Posted on October 10, 2016October 1, 2019 by legalresearch

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

Today is World Mental Health Day and time for us to spare a thought for the millions of people around the world suffering from mental health problems. The World Health Organization (WHO) estimates that one in four people in the world will be affected by mental/neurological disorders at some point in their lives. Approximately 450 million people in the world are suffering from these conditions at any one time. This means that mental disorder is among the leading causes of ill-health and disability worldwide.

The WHO has urged governments to move away from large mental institutions and towards health care in the community. Governments must also ensure that mental health care is well integrated into the general health care system. Whilst many Western governments have adopted this de-institutionalisation approach, treatment facilities and standards in many countries, especially in the developing world, are still woefully inadequate. Indeed, the WHO reports that more than 40% of countries have no mental health policy and a quarter of countries don’t even have any form of mental health legislation or regulation of mental health care. Added to this is the troubling fact that mental health services across the globe are continually under-funded: 33% of countries spend less than 1% of their total health budgets on mental health care/services. (more…)

Exploring legal approaches to climate justice: Reflections from the South Pacific

Posted on October 3, 2016September 22, 2016 by legalresearch

By Alice Venn, PhD Candidate (University of Bristol Law School).*

The South Pacific is one of the most vulnerable regions in the world to climate change impacts. The images conjured up of sinking small islands surrounded by miles of rising oceans however do little justice to the vibrant cultures, diverse landscapes and close-knit communities I recently encountered there. As part of my PhD project exploring the legal protection available to climate vulnerable states and communities I was fortunate enough, with the support of the South West Doctoral Training Centre, to be awarded a three month visiting researcher position at the University of the South Pacific in Port Vila, Vanuatu. I spent my time there gathering data, primarily through a series of interviews with key stakeholders from national government, local law firms and NGOs, as well as with a number of regional organisations during a short trip to Fiji. (more…)