Tag: think piece

Celebrating the life and work of Professor Bernard Rudden (1933-2015): BACL Annual Seminar 2016

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By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School) and President of the British Association of Comparative Law.

ruddenProfessor Bernard Rudden DCL, LLD, FBA was Professor of Comparative Law at the University of Oxford from 1979-1999 and Professorial Fellow of Brasenose College, Oxford.  On 6 September 2016, the British Association of Comparative Law (BACL) held its annual seminar in his honour at St. Catherine’s College Oxford.  Its theme was: ‘Bernard Rudden – Comparativist, Legal Scholar, Polymath’.

Professor Rudden, a noted comparative private lawyer, passed away on 4 March 2015, aged 81. His obituary in The Times newspaper described him as a “legal polymath who published extensively on Soviet law”, but the seminar sought to go beyond this succinct description and identify not only Rudden’s contribution to comparative law scholarship but also his impact as a friend, colleague, teacher of law and mentor to numerous comparative law academics. (more…)

Immigration enforcement in the Byron aftermath: The legal limits of what can be required from employers

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By Dr Katie Bales, Lecturer in Law (University of Bristol Law School).*

36b0c79400000578-3714197-image-a-24_1469780776407In July 2016 the Byron hamburger chain colluded with Home Office officials in setting up immigration raids on their workforce which resulted in the arrest and detention of 35 of their workers. Following mass protests over their actions, Byron released a statement declaring that the firm ‘was unaware that any of our workers were in possession of counterfeit documentation’. Despite the fact that ‘vigorous right to work checks were carried out’, Byron claimed that ‘sophisticated counterfeit documentation was used’ by the workers meaning Byron had no idea that those individuals were without the right to work. Byron also claimed that they were under a ‘legal obligation’ to cooperate with the Home Office, suggesting that cooperation with Immigration enforcement was mandatory as opposed to voluntary.

A recent report from Corporate Watch indicates that this type of collusion is not uncommon as immigration enforcement officials often use financial sanctions as a threat to coerce employers into helping with their investigative and arrest operations. The financial sanction referred to exists in the form of a ‘civil penalty’ which stands at £20,000 per worker that is found to be working ‘illegally’ without the right to work. Discounts are made however where employers cooperate with the Home Office. A £5,000 discount will be made for example, where employers report workers and a further £5,000 for active cooperation, a full list of these discounts can be found in the Home Office code of practice on the civil penalty scheme for workers.

The questions raised by the Byron press release and the further report from Corporate Watch concern the extent of the legal obligations placed upon employers in terms of immigration enforcement. Are employers legally obliged to set up ‘arrest by appointment’ meetings for staff for example? And do any of the legal obligations owed to employees or workers conflict with those related to immigration enforcement? (more…)

We need a new corporate landscape

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By Prof Charlotte Villers, Professor of Company Law, and Ms Nina Boeger, Senior Lecturer in Law (University of Bristol Law School–Centre for Law and Enterprise).

© Childs & Sulzmann. Artist’s impression of Boxworks at the Engine Shed
© Childs & Sulzmann. Artist’s impression of Boxworks at the Engine Shed (Bristol)

Our corporate landscape has relevance for our post-Brexit future. Yet deep public distrust exists not just with regard to our politicians but also with regard to business. Recent debacles involving the now defunct British Home Stores and Sports Direct are just the tip of the iceberg in what is widely seen as a broken economic and political system that has given precedence to the leading market actors.

Corporate governance is the key means by which global wealth is distributed but that wealth is not distributed fairly. Two stakeholder constituents are prioritised: boardroom directors who frequently enjoy eye-watering pay and perks, and shareholders, at least in theory, through the profit maximisation imperative. Both groups have focused on making a quick buck rather than the long term interests of their companies. Workers, at the bottom of the corporate hierarchies, have little chance of improving their means of living and face greater levels of insecurity in their working and home lives. Workers further down the supply chain risk their lives trying to scratch a living in countries only too glad to gain trade from the powerful multinationals.  Consumers lose out as product quality and services are whittled down and the environment, as a natural resource constituency, barely gets a look in. (more…)

Keeping Procurement on the Rails: A Legal Perspective on UK Passenger Rail Franchising

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

© Colin G. Maggs, Ex LMS 46100 'Royal Scot' rests in platform 13 at Bristol Temple Meads having arrived from the north in July 1961
© Colin G. Maggs, Ex LMS 46100 ‘Royal Scot’ rests in platform 13 at Bristol Temple Meads having arrived from the north in July 1961

Since privatisation, passenger rail has fallen victim to a complex web of institutional and contractual relations, a matrix of network owners, service providers, regulators and oversight bodies with ever-changing remits. At the risk of oversimplification, rail provision involves the formal separation of Network Rail’s management of the infrastructure (the track etc) from the operation by Train Operating Companies (“TOCs”) of rail services on that infrastructure. The Department for Transport (“DfT”) opens the operation of rail services up to competition through a procurement process and invites qualified TOCs to bid, although some rail franchises may be directly awarded without competition. In turn, TOCs pay to access the network and lease rolling stock. All involve multiple contracts sharing subsidies, premiums and risks.

Post-privatisation, it was predicated that the contractualisation of rail would lead to “government by lawyers”. Yet, I have always been surprised at the relatively limited engagement of legal research on UK rail since.[1] This blog seeks to renew conversation by arguing that there is a high degree of legal and practical uncertainty in the route to effective franchise procurement and which has not been significantly improved by recent reforms.[2] (more…)

Inside San Diego’s Otay Mesa Detention Centre

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By Dr Diego Acosta Arcarazo, Senior Lecturer in Law (University of Bristol Law School).*

Otay Mesa Detention Centre, San Diego
Otay Mesa Detention Centre, San Diego

Although much of my research focuses on legal aspects of undocumented migration, I’d never visited a detention centre for irregular migrants. So when the opportunity arose in May this year to see inside the Otay Mesa detention facility near San Diego (where a Russian citizen had died just days before), I couldn’t pass it by.

The first thing that strikes the observer is how far the facility is located from downtown San Diego. Indeed, it’s very close to the Mexican border. Having finally arrived after more than an hour’s drive, and after going through a double electrified fence and registration, we are conducted into a room where we are given a presentation by CCA personnel. CCA — the Correction Corporation of America — is a private company making huge profits on running such centres ($227 million in 2015). With some notable exceptions, scholars have neglected the business aspects of the migration industry, perhaps due to the opaque nature of some of the arrangements between governments and companies working in the sector. Yet these aspects raise innumerable questions as to whether one can reconcile the profit-seeking interests of shareholders in such companies with human rights, as well as to what extent legislation might be influenced by powerful lobbies interested in perpetuating the detention cycle. (more…)

Criminal Law to the Rescue? ‘Wolf-Whistling’ as Hate Crime

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By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*

Eugène Delacroix’s Liberty Leading the People
Eugène Delacroix’s Liberty Leading the People

On July 13, 2016 Nottinghamshire police became the first force in the UK to recognise misogyny as a hate crime.  Hate crime is defined as ‘any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a personal characteristic’. In practical terms, this means that in Nottinghamshire police can record reported incidents such as wolf whistling, verbal abuse, taking photographs without consent, and using mobile phones to send unwanted messages with an additional ‘flag’ or qualifier on their incident log as hate crime.  It appears that the move is largely symbolic, as gender animus is not a relevant aggravating factor for the purposes of sentencing under relevant UK ‘hate crime’ legislation,[1] and does not create any new criminal offences.  However, the initiative has been supported by the force working in partnership with the Nottingham Women’s Centre and has involved the specialised training of officers to better identify and respond to the public harassment of women by men.

The announcement last week of the initiative was met with the predictable level of teeth gnashing and cries of ‘political correctness gone mad’ characteristic of any policy announcement addressed to countering gender inequality.  While the move may be largely bureaucratic, it does present an opportunity to look again at the spectre of criminalisation in our time and consider a related question: What is the role of the criminal law in regulating gender (in)equality, and what should it be? (more…)

Singling Out Defence Procurement: Contract Pricing under the Single Source Contract Regulations

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

38611963Whatever the fallout of Brexit, the UK will continue to take a leading role in the defence of Europe. In an age that will be defined by reduced defence budgets and increased security threats, the Government must ensure that the way it organises, procures and manages its defence capability delivers value for money. Historically, the legal aspects of defence acquisition have been largely underresearched. My latest monograph, UK Defence Acquisition: Organisation, Process and Management (Hart Oxford, forthcoming) will offer a first systematic analysis of an area currently undergoing unprecedented domestic legal reform. This blog focuses on efforts to regulate the escalating costs of defence contracts. (more…)

The National Preventive Mechanism of the United Kingdom

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By John Wadham, Visiting Senior Research Fellow at the Human Rights Implementation Centre (University of Bristol) and NPM Chair.*

john wadhamThe National Preventive Mechanism (NPM) describes the network of independent statutory bodies that have responsibility for preventing ill-treatment in detention.[1]  In every jurisdiction of the UK – England, Northern Ireland, Scotland and Wales the bodies in this network have the job of inspecting or monitoring every place of detention to try to prevent the ill-treatment of those detained. The inspection and monitoring bodies provide essential protections for anyone detained anywhere in the UK, many of whom are vulnerable.  Whether a person is compulsorily detained in a prison, an immigration detention centre, a psychiatric hospital, or as a child in a Secure Training Centre there is an organization designed to ensure that no ill-treated will be tolerated. (more…)

“Brexit means Brexit”: What next for UK Trade?

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

empiretradeThe 13th July 2016 is likely to be remembered as one of the most significant dates in Britain’s recent history. Following the political fall-out from the EU Referendum our newly appointed Prime Minister, Theresa May, has taken office. In one of her opening statements, May has confirmed that “Brexit means Brexit” and it seems that the triggering of Article 50 TFEU is an inevitability – it is now a matter of when, and not if, the trigger is pulled. With this in mind, we should perhaps pause and reflect on the Cabinet reshuffle with a view to considering some of the possible negotiation strategies we may see in the near future. The negotiation strategy will be twofold: in one respect the UK must negotiate its way out of Europe, and in another respect the UK must formulate a coherent external trade policy in order that relationships with non-EU countries can be developed. (more…)

Brexit and private international law

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

GlobesIt is unlikely that many voters, when deciding how they would vote in the recent EU referendum, would have given any thought to the implications of Brexit for private international law in the United Kingdom. Nevertheless, Brexit is likely to have profound consequences in this (admittedly) complex and specialist field. The greatest effect will be felt in the commercial arena: in the context of cross-border litigation, for example, the EU has established, in civil and commercial matters, a common framework for the jurisdiction of national courts, the determination of the applicable law and the reciprocal recognition/enforcement of judgments granted by Member State courts. Brexit will also take the United Kingdom out of the EU-wide systems for the allocation of divorce jurisdiction and the mutual recognition of divorces and nullity decrees. (more…)