Bristol Law School launch inaugural UWE Bristol Student Law Review (UWESLR)

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This week the Bristol Law School proudly launched the inaugural issue of the UWE Bristol Student Law Review (UWESLR), edited by Dr Tom Smith, which showcases undergraduate student law research at UWE Bristol.

The future of legal research is, like the legal profession, dependent on our current students. We believe it is essential to both encourage the efforts of our students and to assist in the development of their research and writing skills.

This publication intends to do so by showcasing outstanding examples of research by undergraduate Law students at UWE. This fulfills twin objectives: to reward their endeavours by sharing their work with a wider audience, and to demonstrate to both their peers and others the quality of the research produced by our future academics and lawyers.

This issue includes three articles; these are based on the submissions of undergraduate students as part of the final year Dissertations module for the Law and Joint Awards programmes.

Annie Livermore writes about the use of surgical and chemical castration in the treatment of sex offenders; Amber Rush writes about the regulation, reintegration and rehabilitation of child sex offenders; and Georja Boag writes about the identification, protection, support and treatment of victims of human trafficking. All have produced excellent and engaging pieces of research, and should be congratulated for their efforts.

The Review represents part of an ongoing effort to make students a part of the academic research community within the Department of Law at UWE Bristol. The research culture of any university should reach beyond the individual and collective activity of professional researchers; students should feel part of the scholarly environment in which they are learning.

It is hoped that the Review will help to create an unbroken chain between academic and undergraduate research. In doing so, researchers can pass on their expertise and experience to the next generation of scholars, and students can better develop their skills.

We hope you enjoy reading it! The full  UWE Bristol Student Law Review (UWESLR) is available to read and download here.

UWE Bristol’s First Interdisciplinary Symposium on Organised Crime

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On Wednesday 10th October, the Centre for Applied Legal Research will be hosting their first interdisciplinary symposium on organised crime.

The Symposium is endorsed by the Criminal Justice Unit, the International Law and Human Rights Unit, and the Regional History Centre. The Symposium is in association with SOLON Interdisciplinary Studies in Law, Crime and History.

The symposium will be chaired by Senior Lecturer in Organised and Financial Crime in Offshore Financial Centres, Dr Mary Alice Young and Lecturer in History Dr Michael Woodiwiss.

Speakers include: 

• Dr Michael Woodiwiss (History, UWE).

• Dr Anna Markovska (Criminology, Anglia Ruskin).

• Professor Tim Hall (Human Geography and Criminology, Winchester).

• Mr Mark Berry, PhD Researcher, Cardiff University, Trustee for the International Association for the Study of Organised Crime.

• Mr Jonathan Benton, Freelance – Formerly Head of Proceeds of International Corruption Unit and Senior Investigating Officer leading the UK Anti-Corruption Task Force and Proceeds of Corruption Unit.

• Mr Mike Lewis, Freelance – Mike’s work documents and understands the activities of states, individuals, armed groups and companies in armed conflicts and vulnerable economies, primarily in sub-Saharan Africa but also in Northern Europe, the Middle East, South and Southeast Asia. More information about Mike Lewis’s research).

The symposium will take place in 4X113 in the Bristol Business School from 9am – 5pm.

The full event agenda can be viewed here. You can register for the event here.

If you have any further questions please email: calr@uwe.ac.uk

Jackie Jones addresses the United Nations on women’s human rights

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Professor Jackie Jones was one of only 9 representatives of all UK Non-Government Officials (NGOs) speaking at the United Nations in Geneva.

Professor Jones was author of the United Nations Wales Shadow Report on Women’s Human Rights that has been submitted to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW).  The Shadow Report compiles  evidence from the Third sector (NGOs) on how well the Welsh and Westminster governments are complying with their international law obligations.

The report highlights some serious gaps, including, closure of courts, rape crises centres, lack of funding opportunities and increases in violence to name but a few. It also calls for transposition of the CEDAW into domestic law to ensure no regression in rights for women in the future. The report has been received by the Committee and is on its website.

CEDAW monitors the implementation of the Convention on Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979).  Countries who have become party to the treaty (States parties) are obliged to submit regular reports to the Committee on how the rights of the Convention are implemented.

During its sessions, the Committee members discuss these reports with the Government representatives and explore with them areas for further action by the specific country. The Committee also makes general recommendations to the States parties on matters concerning the elimination of discrimination against women.

In this instance, Jackie Jones was giving evidence to the pre-session of CEDAW. The Committee heard evidence about the compliance of the UK with its human rights obligations towards women.

Professor Jones focused on domestic transposition/implementation of CEDAW into UK law – and the effects of devolution on women’s unequal position in the 4 nations – as reflected in British society, policy and law.

For more information about the process, please see:

https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx

Visiting Scholar Dr Philippe Karpe at the Bristol Law School

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Written by Dr Noelle Quenivet

Between 10 February and 10 March 2018 the Centre for Applied Legal Research hosted Dr Philippe Karpe as Visiting Scholar. Dr Philippe Karpe is a senior legal researcher and international expert working for CIRAD, a French agricultural research and international cooperation state organization working for the sustainable development of tropical and Mediterranean regions. Worldwide there are 850 CIRAD researchers assigned in 40 countries involved in an array of projects. Dr Karpe is currently posted in Nairobi, Kenya.

Invited by the International Law and Human Rights Unit and the Environmental Law Research Unit it was a pleasure to have Dr Karpe with us as he took part in a wide range of teaching and scholarly activities offered by the Bristol Law School whilst also pursuing his own research on indigenous people and the management of natural resources. By education Dr Karpe is a public international lawyer who studied at the universities of Nancy, Paris 10 and Strasbourg in France and holds a ‘habilitation à la direction de recherche’ (Accreditation to supervise research,) a French post-doctoral degree allowing him to supervise PhD students. Besides supervising PhD candidates at CIRAD he also teaches at the universities of Strasbourg (France) and Hokkaido (Japan). The bulk of his work however consists in planning and running projects with and for international organisations (eg United Nations Development Programme-UNDP, World Bank), NGOs (eg Rainforest Foundation Norway, Organisation des Nations Autochtones de Guyane-ONAG) and other stakeholders applying his expertise on governance and rule of law, including indigenous peoples’ rights (general and particular rights, especially land rights, forest’s and carbon’s rights, forest users’ rights, women’s rights), socio-environmental safeguards, sustainable forest management, rural and forest land tenure (including for the implementation of the Voluntary Guidelines on the Responsible Governance on Tenure of Land, Fisheries and Forests in the Context of National Food Security-VGGT), participative management of lands (including the use of artificial intelligence), participative mapping, institutional arrangements and stakeholder commitments (civil society, forest communities, etc.).

Dr Karpe led workshops on three modules (‘Natural Resources’, ‘Corporate Governance and Corporate Social Responsibility’ and ‘European Environmental Law and Policy’) offered on our LLM programmes. In each of these modules he shared with the students his extensive knowledge and practical expertise in the relevant fields. In particular he brought law to life by using concrete legal problems he had been confronted with in his own field work. For example in the module ‘Natural Resources’ led by Prof Jona Razzaque Dr Karpe produced real forest legal texts that were enacted by regional, national and local public authorities. The students could thus see how forests are protected (or not). This undoubtedly allowed the students to understand better the practical applicability and application of the law as well as its (sometimes unintended) consequences on local populations. In the module ‘Corporate Governance and Corporate Social Responsibility’ the students were asked to engage in a discussion on ethical aspects of activities carried out by multinational enterprises using real contracts that were agreed upon between indigenous people and organisations. Passionate discussions in this workshop run by Dr Karpe and Dr Sabine Hassler on for example the protection of traditional knowledge in India and the protection of the intellectual property rights of the indigenous peoples ensued. This inquisitive and practice-oriented type of engaging with the students was again displayed in the workshop on the EU Common Agricultural Policy (CAP) in the module ‘European Environmental Law and Policy’. Together with the module leader, Christian Dadomo, Dr Karpe challenged the students to analyse the current CAP reform and its interface with the environment and, more largely, the future shape of the society. He notably discussed with the students the negative and positive connections between agriculture, the society and the environment (eg pollution, deforestation, drying up of rivers, etc) and how the reform of the CAP deals with these issues. Dr Karpe’s visit to UWE was no doubt an asset to further nurture our practice-led and student-centred teaching culture on the LLM programme at UWE.

Throughout his stay at UWE Dr Karpe also took the opportunity to attend a number of external engagement events organised by the units of the CALR such as the Brexit and Corruption talk by Dr Lorenzo Pasculli and the Brexit and Trade Relations panel discussion. As a scholar working often far away from European legal issues he particularly enjoyed this insight into one of the most commonly debated issue in the UK: the withdrawal of the UK from the European Union. In this context, he sincerely enjoyed the great variety and quality of the different UWE’s opportunities to develop and enrich the knowledge on many scientific and political vital present concerns.

Dr Karpe had the opportunity to deepen his present academic research especially on Harmony with Nature, the Commons, the indigenous peoples and the farmers by collecting many references and academic articles on the UWE’s virtual library and by daily discussions with colleagues on a variety of topics, some of them relating to research methods and methodology (eg epistemology, social-legal studies and critical legal studies). Furthermore his stay at UWE gave him the opportunity to consider some new academic concerns such as conflict, war and the humanitarian legal framework.

On two occasions Dr Karpe presented his work to UWE staff and students. At a first event he shared with us his practice-based research and at a second reflected upon his work as a lawyer in the field. A roundtable on ‘The Future of the Commons’ was organised on 28 February 2018 to discuss the definition of the concept of the ‘Commons’ and develop the ‘Commons Thinking’. Dr Karpe’s intervention focused on his own experience of the commons in the African context. For example he was once confronted with what appeared to be an odd situation in a village. The local population did not seem to be related or linked, the concept of society did not seem to apply either and it appeared that each person was working for him/herself. A positive, classic lawyer would have undoubtedly failed to realise that there was something beyond that and that in fact these individuals were connected by a common, shared ‘space’. Dr Karpe then questioned whether the concept of the commons was an answer to this practical/technical problem which could be turned into a political concern. He posited that current values do not conform to aspirations of justice and that contemporary laws do not help support, protect and promote the life of individuals who live in such a situation. Yet, as a lawyer, his job is to establish justice between people and to find solutions to concrete technical as well as political problems. Thus in his view the concept of the Commons appear to be the most suitable tool. However, when trying to write the law of the Commons the lawyer faces the harsh reality of having to acknowledge that law simply is not the most appropriate tool. For example, law is usually split in different areas such as contract law, family law, property law, etc and yet the Commons transcend these separations. Also the Commons are a ‘space for development’ as they create opportunities for changes and evolution. This all makes it difficult to freeze the Commons into law. Dr Karpe then argued that for him it was crucial that human rights be at the centre of all these activities. Law should be created around human rights. He also challenged the vertical relationship of law whereby constitutional law sits at the top of the hierarchy of any national legal system. Whilst he admitted that this might sound revolutionary as lawyers struggle to understand law in anything but hierarchical terms and categories he emphasised that only a horizontal understanding of the law could avoid corrupting the Commons. As he explained his support for the Commons he however warned that the concept of the Commons might in specific contexts be used as a new form of colonialism enabling State and organisations, for example to deny rights to indigenous people on the basis that under the principle of non-discrimination and shared access to resources no special rights should be given to them.

Last but certainly not least Dr Karpe gave a talk entitled ‘Has the Wandering Lawyer Reached his Destination? – The Adventures of a Lawyer Working in the Field’ which gave him the opportunity to reflect on his work. It was an enlightening talk as Dr Karpe shared with us over 25 years of research in Cameroon, the Central Republic of Africa, Madagascar, Democratic Republic in Congo, Gabon, etc. He kicked off this presentation by asking ‘What am I? What is my purpose as a lawyer?’. Looking at the type of jobs he usually carries out he acknowledged that his work tends to touch upon a range of topics (eg weddings, contracts, etc) though it does focus on forestry. Yet, as a human being he questions what his real role is. For him, he should be promoting justice and more specifically social justice. As a result he does not question the abstract internal coherence of the texts, the content of texts or their effectiveness and efficiency as such. Rather, these are only steps in this research work. The basic research question is ‘under which conditions may the lawyer contribute to improving the living conditions of the local population?’. The objective is thus to understand how law can contribute to improving the living conditions and ensure the protection of a certain idea of a community of life. For this, four assumptions – in the meantime, he challenged them –  must be made: 1) laws and rules may contribute to social change and lawyers are thus useful; 2) laws and rules have a political function; 3) there is a community of life and 4) the function of laws and rules is to guarantee social peace. Likewise Dr Karpe conceded that there were a number of challenges: 1) working with disadvantageous groups such as indigenous people, rural women, etc; 2) the status of users’ rights in developing countries and 3) the status of peasants. All these challenges relate to various aspects of vulnerability and deprivation of rights. With this in mind the lawyer must think about how he can have a positive impact on society. In Dr Karpe’s eyes the most suitable way to understand societies and to then be in a position to support them is to conduct extensive research in the field. For example this means using involved, immersed and applied research techniques so that a concrete and continuous contact with the relevant people can be established. Closer to the problem one can feel it. Dr Karpe also stressed that the nature of the field obliges all actors to adopt an interdisciplinary approach and so he works with economists, anthropologists, biologists, pharmacologists, etc, bearing in mind that each person brings his/her own views and perceptions of the situation and that all these views as well as methodologies need to be integrated into one’s work. Does that mean that the lawyer disappears? As Dr Karpe stressed he remains a positive lawyer (one that is trying to find the best solution to a problem that affects people), a humanist (there is no doubt a need for empathy and humility in these circumstances) and a ‘questionnaire’ (a person who asks questions) and thus a ‘wandering lawyer’. In his opinion this ‘wandering lawyer’ has a fundamental political and moral obligation to remember, think, defend and realise the key destiny of a lawyer: social justice. As a result he/she must revise his/her vision of the law, its essence, substance and form. Four main research themes derive from this stance towards law and the role of the lawyer: 1) the commons, the harmony between nature, humanity and values (justice); 2) the nature and the content of the law (juridicity); 3) the tools for implementing the law and 4) the methodologies of knowledge of law. Dr Karpe presented some of the results of his reflection, explaining that the law should not be in the form of specific provisions, that the new ‘Common Law’ should correspond to a right of communion, a transcendental right and that the new Common Law must correspond to an idea, that of a community of life. Under the Common Law individuals enjoy the same rights and there is no hierarchy of rights. That being established, Dr Karpe questioned the way law is created, articulating the idea that law is often crafted by a certain type of persons for a certain type of person and for a specific objective and that consequently law may not be really that ‘common’ in fact.

As Dr Karpe left UWE he had made contact with many colleagues in the Bristol Law School and hoped to be able to involve these colleagues in his work. He proposed to establish an opened think-thank on the Commons, the Wandering Lawyer, Law and the Juridicity, named: “the Rainbow Team”. Discussions were also had about future collaboration notably in the form of common projects relating to the protection of the environment, biodiversity and conflict. It was with regret that we had to let Dr Karpe go back to his work as it was such a pleasure to talk to him on a variety of topics.

Guest Lecture: Dr Jane Rooney: Article 2 of the European Convention on Human Rights in Armed Conflict

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By Noelle Quenivet

On 14 March 2018 the Centre for Applied Legal Research welcomed Dr Jane Rooney, Lecturer at the University of Bristol, to present a paper on ‘Article 2 of the European Convention on Human Rights in Armed Conflict’. Dr Rooney began by explaining that she was challenging the commonly held view that human rights law and the European Convention on Human Rights more particularly subject States to a higher threshold than international humanitarian law.

To support her key argument Dr Rooney took the example of internal disturbances that are not covered by international humanitarian law as they do not reach the required levels of violence and organisation of non-State actors. In such instances Article 2 ECHR becomes of paramount importance. Under this provision force may not be used unless absolutely necessary and so the European Court of Human Rights will examine whether force has been used in a proportionate manner as well as how the operation was planned and controlled. As she explained, Article 2 ECHR contains two types of positive obligations (substantive and procedural) and negative obligations. With regard to negative obligations, Dr Rooney observed that they are never looked at in an extra-territorial context. She added that even in an internal context they are only examined in cases relating to terrorism, high levels of violence and internal disturbances but not armed conflicts. As a result a human rights paradigm is applied because the situation at hands is not one that falls within the remit of international humanitarian law. A law-enforcement perspective is thereby espoused.

Dr Rooney focused her attention on three cases against Russia: Isayeva (2005), Finogenov et al (2011) and Tagayeva et al (2017) as they provided good examples of high levels of violence yet not necessarily falling within the scope of international humanitarian law. The first case relates to the bombardment of civilians leaving the siege of Grozny, the second examines the hostage crisis in a Moscow theatre and the third looks at the hostage take-over of school in Beslan.

In McCann et al the European Court of Human Rights scrutinised the planning of the operation as and applied an honest belief test to establish whether the principle of proportionality had been complied with. Yet, in Armani da Silva (2016) the Court applied a subjective test of proportionality. Dr Rooney argued that it seemed that increasingly the European Court of Human Rights was adopting a rather deferential attitude towards the State. For example in Finogenov it used the margin of appreciation doctrine to allow the State a certain degree of discretion. Usually, the Court sets out the test and applies it. Another exampled used by Dr Rooney was the use of poisonous gas. In Finogenov the Court deemed it proportionate whereas under international humanitarian law such weapons (ie riot control agents) are banned. Dr Rooney pinpointed that whilst political considerations were embodied in international humanitarian law this was not the case of human rights law. Was it however possible that the Court was building political considerations into its jurisprudence?

In an armed conflict paradigm, force will be used and individuals will be killed but the principles of distinction, discrimination and proportionality will set the limits to the use of force. In other words the use of force is intimately related to the designation of people in an armed conflict.  The reason for this is that international humanitarian aims to protect those who are not taking part in hostilities. The principle of proportionality under this legal regime allows for incidental loss of civilian life but only on the basis that it is proportionate to the military advantage. Thus international humanitarian law is more permissive in relation to the lethal use of force.
In Tagayeva the Court appeared to use international humanitarian law to decide on the legality of the attack carried out by the Russian forces with a view to freeing the hostages in the school. After all it did refer to Article 51(4) of Additional Protocol I to the Geneva Conventions and Articles 1 and 2 of the Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Incendiary Weapons) in describing the relevant legal framework. However, it turns out that although the Court mentioned international humanitarian law it did not use it. In fact the Court examined whether the basic principles on the use of force and firearms by law enforcement officials had been complied with. Here the Court examined whether a legal framework was in place on the national level, concluding that it had failed to set the key principles of the use of force as required by the Convention. In fact the Court seemed to focus its attention on the negative obligation of Article 2 ECHR, investigating the planning and control as well as the investigation after the attack. It observed that Russia had failed to take precautionary measures although it was aware that the individuals had travelled to North Ossetia, similar attacks had been carried out and no warning was issued to the school administration. As for the investigation since no inventory of the weapons used was made, the evidence was disposed of summarily, etc it failed to comply with the principles of Article 2 ECHR. Interestingly, as the Court concentrates on issues prior and after the attack it seems that it is using these tools to deter States from using force, stressing the importance of working on prevention and investigation and the need for States to put in place appropriate measures to avoid the recurrence of such unlawful uses of force.

The European Court of Human Rights defers to the state on proportionality of use of force on the grounds that the judiciary is not equipped with the expertise or democratic legitimacy for making such a decision that is vital to national security. An evaluation of the jurisprudence indicates that adopting a human rights/law enforcement paradigm can result in a more permissive regime of use of force than under the armed conflict paradigm.  International humanitarian law should serve as a point of reference for the European Court of Human Rights in ‘internal’ disturbances, especially where the alternative is a more permissive regime of use of force on the part of the state; where politics dictates the characterisation of the violence as a domestic disturbance rather than an armed conflict; as well as its characterisation as internal or transboundary. Dr Rooney concluded by stating that there needs to be further assessment of the cross-section between counter-terrorism and armed conflict regimes in order to clarify our expectations of state behaviour in these difficult circumstances.

Workshop ‘The Future of the Commons’ with Keynote Speaker David Bollier

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Photo by Liam Pozz 

On 28 February 2018 while Dr Philippe Karpe, Visiting Scholar of the Environmental Law Research Unit (ELRU) and International Law and Human Rights Research Unit (ILHRU), stayed at UWE Elena Blanco chaired and organised a roundtable on ‘The Future of the Commons’ as one of the events during his month long stay.

Philippe Karpe’s work for CIRAD in Kenya on natural resource management and his scholarship had touched and explored this alternative, sustainable discourse of ‘The commons’ not just as a natural resource management tool but, more importantly, as a challenge to traditional law practice and a re-framing of law as an instrument of social and environmental justice.

We were extremely fortunate to have David Bollier, the main authority in ‘The Commons’ scholarship and practice, to accept our invitation and join us via (green) Video Conferencing to share his latest work on the understanding of ‘value’ and its influence and articulation in policy. David has inspired a large number of researchers and activists through with his best known work ‘Thinking Like a Commoner’ and, after his keynote, he engaged in a lively discussion with invited participants and discussants.

With a topic as poignant as this paradigmatic ‘Commons Thinking’ we decided that this first roundtable (we would like more events like this to follow) would be critical and conceptual while a later event (which will be organised by the ELRU in June) will engage with practical perspectives and activism. Hence, the invited discussants to this event were critical thinkers and theorists like Dr Sam Adelman (Associate Professor at the School of Law of the University of Warwick), Dr Vito de Lucia (Researcher at the KG Jebsen Centre for the Law of the Sea, UiT Arctic University of Norway) and Professor Anna Grear (Professor at the School of Politics and Law of the University of Cardiff) to join Dr Philippe Karpe and his very interesting practical and theoretical insights into the potential of ‘commons thinking’. The audience included members of the ILHRU, the ELRU, FET and the Bristol Business School, including our doctoral students.

The workshop began with David Bollier’s keynote speech. He pointed out that that there are a multitude of ways to approach the concept of the common. Whilst many politicians and individuals working on issues relating to economics and property rights focus on the resources aspect of the commons it should in fact be viewed as a social system with a community of values, rules and practices relating to resources. Traditionally, natural resources such as fisheries, farmland and wild game have never been considered as significant for economic purposes because there is no direct cash attached to it. Anthropologists appear to be the ones most able to understand the concept as they view the commons as a food system in a community, be it in an urban or agricultural setting. Indeed the commons can be seen as a new movement enabling ordinary people to use and more importantly share and manage resources (eg community garden, public common partnership, wifi nets, etc). Often, the key features of these communities are open design and sharing.

David Bollier stressed that there is a burgeoning world of very diverse commons initiatives, all based on shared benefit, fairness, equality and inclusive participation which are the core elements of the commons. The idea is that individuals negotiate, collaborate and come to an agreeable conclusion. As a result the commons create social bonds, a social movement that exists outside of the State and politics. However, because it is non-conventional it is often viewed as irrelevant. Yet, this discourse and vehicle of expression can be used to counterbalance the politics of market. It is a new vision and paradigm of politics and governance as it is a politics of belonging. The commons are a different philosophy of human aspiration and existence, away from the capital market and liberalisation philosophies and values. In this view radical individualism is destroying social bonds.

That being said, the commons is not only a critique that challenges the systemic limitations of the neoliberal economics and political culture but also an inspiring platform for reform. A long history of the commons allows for the concept to be anchored in political and legal tradition. As the concept of the commons allows for transnational collaboration it reimagines the State and law more generally. It opens up spaces that are contextual. Moving forward, David Bollier suggested that the next step should be to bring together small initiatives with a view to develop horizontal relationships between the movements. This would allow the organisation of politics beyond political parties as well as be the opportunity to create a theory of values that focuses on non-monetarised elements. David Bollier concluded his keynote speech by sounding a note of caution: by ushering the commons into mainstream it should not lose its true meaning.

Several important insights arose from the event including many critical ‘cautions’ such as the danger of top-down (even if green) approaches, the need for participatory structures, the importance of formulating alternatives to development and the importance of escaping the ‘value trap’ that dominates all aspects of our lives at the moment.

The idea of ‘Legal Hacks’ was discussed at the end of the event and put forward by David as a way of transitioning to a sustainability informed, participatory approach to social, economic and environmental approaches. He also linked his work to that of his good friend George Monbiot who as a public figure regularly formulates alternatives to mainstream destructive economic approaches.

We think we speak for others when we say we left the event inspired, hopeful and determined to take this thinking and scholarship further. Elena Blanco was able to bring some of the insights of the day to the ‘Repair Acts Network’ event which took place in 13 March (see separate post).

If anyone is interested in participating in a ‘local-global’ commons inspired multidisciplinary project, please get in touch with Elena Blanco at Elena.Blanco@uwe.ac.uk .

Elena Blanco (Associate Professor on International Economic Law, Acting Head ELRU) and Noelle Quenivet (Associate Professor in International Law, Head ILHRU)

Panel Discussion with Christian Dadomo, Dr Clair Gammage and Dr Maria Garcia: Brexit and Trade Relations

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The talk was organised by the lecturers of the module ‘EU Law’ offered to Year 3 students and the International Law and Human Rights Unit of the Centre for Applied Legal Research.

Since the beginning of this academic year 2017/2018 third year students on the LLB degree have had the opportunity to listen to a number of internal and external speakers on the issue of Brexit. On 16 February 2018 the team teaching EU law convened a panel discussion on ‘Brexit and Trade Relations’ comprised of Christian Dadomo, Senior Lecturer at UWE, Dr Clair Gammage, Lecturer in Law at the University of Bristol, and Dr Maria Garcia, Senior Lecturer in International Political Economy at the University of Bath. Each of them shared his/her thoughts on the topic and the session was then run in a Question Time format as students had been asked to send questions in advance to the chair, Dr Noëlle Quénivet, Associate Professor in International Law.

Dr Garcia began the session by setting the scene of the Brexit campaign and Brexit in relation to trade. She pointed out that whilst contestation of trade was a global trend and protests and concerns had been voiced against eg genetically modified organisms, chlorinated chicken, the privatisation of the NHS no such discussion was held during the Brexit campaign. Brexit did not seem to be about contesting global trade and its effects but migration and ‘taking back control’. The fact that there was so little discussion on trade might be explained by the fact that trade negotiations could only be held once the UK had left the EU since the EU has exclusive competence in negotiating trade agreements. Also she explained that if references were made to trade during the campaign it was usually about agreements with other States rather than trade as such. As a matter of fact the best prediction about individuals voting leave/remain was not the trade issue but education, attitude towards migration, etc. In preparation to Brexit trade has been becoming increasingly important as Prime Minister Theresa May referred to it in her Lancaster and Florence speeches and Foreign Minister Boris Johnson talked about it to recently. This has no doubt shifted the debate. Still, no discussion is being had on the contestation of trade policies. Dr Garcia suggested this might be due to the fact that it is too early to do so in light of other significant and more urgent problems. It might also be the case that the government has no clear idea of the precise content of future trade agreements. Moreover the UK government appears to send mixed messages, asking for a seamless trade relationship and yet being unable to adopt a clear position on how to tackled the issue of the two land borders through which it will trade (between Ireland and Northern Ireland and between Gibraltar and Spain). The UK White Paper on Trade reflects an inclusive and pro-development approach to trade that will however be difficult to deliver. Indeed, it appears that at the moment the UK is training individuals on issues relating to financial services rather than goods that are key to trade agreements with development features. Further, if the aim of Brexit is to regain sovereignty why should the UK accept American standards as well as dispute settlement mechanisms enshrined in trade agreements? Dr Garcia explained that it appeared that the UK was in fact anchoring itself in a thinking that supported what Steven Gill has described as the constitutionalisation of a neo-liberal regime through trade agreements.

The next speaker, Christian Dadomo, shared his thoughts on what the deep and comprehensive trade agreement favoured by the UK government could look like. Mr Dadomo first explained that before even starting discussions on such an agreement the UK and the EU needed to negotiate and agree on a withdrawal agreement focusing on three priority issues: EU and UK citizens’ rights, a financial settlement and the situation in Northern Ireland. The result of these negotiations were presented in a joint report on 8 December 2017. Such agreement also needs to take into account the future framework arrangements. As Mr Dadomo observed a number of elements are known. First, all free trade agreements the EU has negotiated are different: there is no one, unique solution as it is important that such agreements fit the various interests of the parties. The UK claims that as a soon-to-be former Member State of the EU it already complies with EU law and thus it should not be difficult to agree on such a trade treaty. Any solution between the UK staying a party to the European Economic Area Agreement to the UK applying the World Trade Organisation rules is on the table. On one end of this continuum of solutions is a very close association with the EU. Yet, it is already known that as the UK wants free trade and control over immigration it has expressed its clear wish to leave the Customs Union and the Single Market. Yet, the EU has specified no cherry picking is possible. It is also known that the UK rejects the Norway model as it would mean paying to get access to the Single Market whilst having no say in the law-making process and being obliged to comply with all EU rules, including those on the free movement of persons. On the other end of this spectrum lies the application of WTO rules which is often viewed as the worst scenario possible as it involves the imposition of tariffs on trade and rules of country of origin. In between these two extreme options two types of agreements, modelled on either the EU-Canada Comprehensive Economic and Trade Agreement (CETA) or the EU-Ukraine Deep and Comprehensive Free Trade Area, are available. Mr Dadomo contrasted the two agreements: whilst Ukraine accepts the acquis communautaire, Canada does not; whilst CETA is focused on trade (goods, intellectual property) the agreement with Ukraine also includes provisions relating to security, home affairs and justice. The key problem is that it is still unclear which kind of agreement the UK wishes to have with the EU apart from a ‘deep and comprehensive one’. The possibility of a ‘CETA +++’ has also been formulated. Mr Dadomo stressed that in any case the agreement will have to be bespoke but the possibility to customise some elements also means that conditions can be attached to them. The Swiss model that is highly bespoke is off the table as the EU does not wish further agreements of this type to be negotiated. Mr Dadomo finished his presentation by stating that until the UK clearly specifies what it wishes the agreement to contain it is difficult to provide a legal commentary, ascertaining whether the EU first can legally enter into such an agreement and second would be amenable to conclude such an agreement.

Dr Clair Gammage then turned her attention to the impact of Brexit on trade and human rights. She highlighted the complexity of the issue as it covers a variety of legal regimes and political opinions greatly differ on the subject-matter. First, she reminded the audience that the UK is still a member of the World Trade Organisation in its own right but that negotiations at the WTO are undertaken by the EU. Second, she pointed at the lack of understanding of how trade works on a multilateral level and that the lack of expertise in the UK relating to negotiating trade agreements. Indeed, tariffs (of eg agricultural products) are set by the EU in the WTO and these will need to be renegotiated by the UK. Tariff-free trade might be a solution. The UK has submitted a solution to the split between the EU and itself but other WTO members (eg the US) have already voiced their concerns or even opposition to the proposal. Unfortunately for the UK it is not allowed to discuss any trade agreements until it is outside the EU and this is not only due to the exclusive competence of the EU but such negotiations would also violate WTO rules. The WTO recognises two forms of free trade agreements: free trade areas and customs unions, both covering a wide range of treaties which means that the UK is likely to negotiate successful suitable trade agreements with third parties. The problem is time as such treaties take several years to be negotiated and concluded. Another problem faced by the UK relates to the existing free trade agreements between the EU and third parties. Dr Gammage shared her view that there is no automatic roll over for such treaties which means that they would need to be renegotiated. As for trade standards, she explained that the UK will be bound by WTO standards (including those relating to sanitary and phytosanitary regulations) and, should it wish to export its goods to the EU, such goods would need to comply with EU law. Dr Gammage then moved on to discussing the effects of Brexit on human rights, arguing that at first sight it appears that there is no erosion of rights. Yet, the situation relating to Northern Ireland that is regulated by the 1998 Peace Agreement is not entirely clear. Further and more generally, the Charter of Fundamental Rights of the European Union will not apply in the UK anymore. This needs to be given proper consideration as a number of rights enshrined in the Charter are not protected elsewhere (eg in the Convention for the Protection of Human Rights and Fundamental Freedoms) and even though the government is committed to retaining EU law it should be borne in mind that such laws can be changed both by Ministers and Parliament and that devolved administrations might not be involved in such decisions. This will have considerable impact on economic rights but could, as Dr Gammage argued, be included in the withdrawal agreement. Moreover the right to equality does not exist as such in the UK as it is entirely based on EU law. Such a right, different from the prohibition of discrimination based on various factors, could be lost. As for the interrelationship between Brexit, trade and human rights Dr Gammage explained that changes in trade relations should be made with great care as a viable economy is of paramount importance. A further complication relates to accepting, even if reluctantly, trading standards in free trade agreements that might directly impact on the local population. For example, the issue of trade in agricultural products must be carefully thought through as the mass import of agricultural goods may lead to less employment which itself can bring salaries and wages down. Also the UK could be bound by trading standards that apply extra-territorially (eg EU animal welfare rules). Dr Gammage thus suggested it might be better to align UK standards on EU regulations for such matters. However, in the grand scheme, the UK will have to find funds to cover for the lost trade and subsidies to eg agriculture and such funds might in fact be divested from assistance to eg disabled and homeless persons. Dr Gammage concluded on the sad note that the UK will in the long term be vulnerable to internal and external troubles.

After the presentations questions from the floor focused on (1) the impact of Brexit on the 1998 Northern Ireland Peace Agreement, (2) the potential checks at the border between the EU and the UK, (3) the impact of Brexit on trade between the UK and South America as well as (3) the future shape of trade agreements between the UK and African States and the Commonwealth.

 

 

 

Guest Talk – Dr Lorenzo Pasculli: The Impact of Brexit on Integrity and Corruption: Local and Global Challenges

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The talk was organised by the Commercial Law Unit and the International Law and Human Rights Unit on behalf of the Centre for Applied Legal Research.

On 14 February 2018 Dr Lorenzo Pasculli, Senior Lecturer in Law at Kingston University London challenged the audience to look at Brexit through the prism of corruption. No doubt this was an insightful and out of the ordinary guest talk for those who suffer from Brexit fatigue.

Dr Pasculli started by explaining that since Brexit or anything similar has never happened before it is difficult to find a theoretical framework to reveal what the consequences of Brexit will be on corruption. That being said, Dr Pasculli stressed that in his opinion Brexit has and will have an impact on integrity at a variety of levels as well as anti-corruption laws and policies.

In relation to integrity, the impact of Brexit can be felt in three areas: political, financial and commercial as well as systemic social. Dr Pasculli explained that the impact of Brexit on political integrity can be analysed at both macro- (ie public bodies, corporations and the media) and micro-level (ie individuals working in the public service) on the one hand and from an internal (ie British politics) and external (eg foreign affairs as well as other States) perspective. This risk factors relating to political integrity are chiefly due to the multiple and complex interests which create division as well as confusion and so mistrust that is amplified by what Dr Pasculli calls, ‘the wrong choice of decision-making device’ which was the referendum. At the internal micro-level there has always been a solid tradition of political integrity even when there were conflicts between personal views and the views of the party. The risk here is that if individuals externalise their dissent they might be reprimanded or marginalised for doing this (as it happened in some recent case). This might lead to the repression of pluralism and dissent. At the internal macro-level, the UK which is often viewed as the beacon of the rule of law is performing very poorly as politicians with undermined integrity did not explain the complexity of the issues and certain lobbying and media stained the Leave campaign of misinformation. Dr Pasculli pointed out that the lack of regulation of the British press exacerbated the influence of lobbies on certain press. The dearth of effective sanctions facilitates partisan press and political misinformation. Further the lack of mechanisms for politicians to step back, apologise for and correct the effect of misinformation on the general public (eg £350 million for the NHS campaign) undermines political integrity. Overall this atmosphere has led to (1) a phenomenon of deresponsabilisation; (2) reliance on emotions rather than reason and information when law and politics should be based on rationality, reasonableness and evidence; (3) general deterioration of political integrity and standing. The consequences of Brexit on external politics (outside the UK) should not be underestimated too. Discussions were had on possible emulations in the form of Grexit and Exitaly but they did not materialise. Most importantly Brexit has strengthened the global trends of populism and nationalism that clearly undermine political integrity as voters are given information that is not built and/or supported by evidence. Brexit, in other words, nurture the global trend of irrationality. After Dr Pasculli argued that this erosion of political integrity leads to ‘legalised forms of corruption’ (eg press being lobbied and lack of regulation of the press) he called for a widening of the definition of corruption in line with the anti-corruption convention. He highlighted the revolving door appointments as an example of lawful practice and stressed that research shows a disconnection between what people believe is unlawful and the actual regulation of particular activities. Dr Pasculli explained we should seize Brexit as an opportunity to raise awareness about these problems as well as ensure a better responsabilisation of certain politicians. Both internal and external pressure can be used to persuade the UK to adopt necessary regulatory measures.

Dr Pasculli then moved on to examine the impact of Brexit on financial and commercial corruption. Dr Pasculli started by explaining that the UK government has clearly explained that the UK will leave the single market even though the EU market is crucial. The conditions imposed by the European Union to the UK in relation to market access might be viewed by the general public as unreasonable and unfair. Such a perception could lead to a violation of legal rules, for there is a tendency to the rationalisation of corrupt practices when the law is seen as useless and/or unfair. This inevitably creates a subculture that encourages corruption more generally. Furthermore, Dr Pasculli observed that as the UK is looking to negotiate trade agreements with non-EU States it must be wary of such business opportunities. First a number of such countries do not comply with anti-money laundering and anti-corruption regulations. Second, companies might have to use corruption in order to pursue their business activities in corrupt-ridden countries. Looking at the countries mentioned by the UK government as potential business partners it is clear that the UK is looking at doing business in places that are high on the corruption index of Transparency International. In other words, British companies are going to move the trade to an environment which is more corrupt. As Dr Pasculli stressed, there is a need to raise awareness about this potential corruption threat. Nonetheless it might be possible to view these business opportunities in a positive light and argue that British companies could become exporters of good practices, strengthening the rule of law and global governance in these countries and more particularly in the Commonwealth.

In relation to systemic social integrity Dr Pasculli noted that the UK government is supporting high-skilled migration only. This, he believed, is extremely short-sighted. Research shows that corruption causes emigration, particularly of high-skilled migrants looking for opportunities in other countries as they are unable to move on in their home country. This however does not necessarily mean that high skilled migrants are immune to corruption. On the contrary studies demonstrate that immigration from corrupt countries boosts corruption in destination countries. As a result, Dr Pasculli suggested that to avoid the spread of corruption in the UK thorough background checks at the port of entry need to be carried out.

Is the UK continuing to be a global example in relation to anti-corruption practices? Dr Pasculli began by asserting that the UK has often been used as a model for anti-money laundering and anti-corruption measures and policies. The possibility of deregulation once outside the European Union might be viewed as a threat to the excellent contemporary regulation. Whilst some scholars argue that Brexit is a distraction from the anti-corruption agenda, Dr Pasculli contended that this is not necessarily the case. In fact in the past year a variety of institutions (eg the International Anti-Corruption Coordination Centre, the Office for Professional Body Anti-Money Laundering Supervision) have been set up and strategies (eg anti-corruption strategy) and laws (Criminal Finances Act 2017, implementation of the fourth money-laundering directive) drafted and adopted.

Brexit will also have an impact on UK financial sanctions which could potentially lead to an increase in corruption and money-laundering practices. Dr Pasculli first observed that financial sanctions are imposed on individuals in relation to their access to financial assets and services and are imposed with a view to pursue specific foreign and national security policies. Then Dr Pasculli noted that at the moment such sanctions can be imposed by the United Nations Security Council, the European Union (often in implementation of UN Security Council resolutions) and the UK Office of Financial Sanctions. After Brexit there will be no need for the UK to comply with the EU sanctions regime anymore. Dr Pasculli underlined that the new Sanctions and Anti-Money Laundering Bill 2017-2019 endows the executive with large powers for a broad range of purposes (eg fighting measures that challenge the rule of law). Further, it is flanked by weak individual safeguards such as ex post judicial review and no jurisdiction of the Court of Justice of the European Union (which had in the Kadi case protected individuals’ human rights against the application of UN Security Council resolutions). Post-Brexit the UK will not be able to sit in EU meetings that relate to sanctions and as its strong voice on sanctions usually gathered support from other Member States it is argued that that without the UK taking part in such discussions divisions amongst EU member States might show more prominently. That being said if the UK imposes sanctions that are not aligned to other States it will feel the pressure of other States as well as companies that are trading in such States. This in turn might increase the potential for corruption.

Last but not least Dr Pasculli stressed that as the UK will be drafting a new raft of laws it must be careful that such laws are not providing opportunities for corruption and crime. Criminogenic lawmaking is indeed a potential risk post-Brexit with new schemes and laws being designed and individuals as well as companies finding ways to abuse or misuse such schemes (eg welfare benefit, taxes/fees/obligations, access to goods and services). Such potential for corruption is heightened if broad regulatory powers are given to authorities.

Looking forward Dr Pasculli shared with the audience his recommendations: (1) there must be some form of responsabilisation of politicians and companies, (2) education and ethicisation are key to maintaining integrity in public affairs, (3) ‘corruption proofing’ of legislation must become an established practice, (4) external controls must be increased.

 

Centre for Applied Legal Research to present at SLSA Conference 2018 

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The Annual Conference of the Socio-Legal Scholars Association is one of the high points of the legal academic calendar, and this year UWE’s Centre for Legal Research will be out in force showcasing current research at “the other place”. Bristol University is hosting the conference this year from March 27 – 29.

Emma Whewell is presenting a paper in the mental health stream entitled “Pre-proceedings and capacity: the impact of professional language and other barriers on parents with learning disabilities”. Emma has undertaken research into pre-proceedings protocols in Family Law, and this paper will showcase some of her research. Laura Walker has done research on resilience and mental health, but for the SLSA she is presenting a paper in the Law and Emotion stream entitled “The Role of Empathy in the Sentencing of Women in England and Wales”, one of several papers from the Centre for Legal Research that looks at criminal justice either directly or indirectly.

Ed Johnston will be presenting his paper entitled “The Defence Lawyer in the Modern Era and the Evolving Criminal Trial” reporting on his research in the criminal justice field. He is not the only UWE researcher presenting on criminal justice topics as Professor Phil Rumney is chairing two panels in the Sexual Offences stream and is presenting a paper with Duncan McPhee (Criminology) entitled “Exploring the Impact of Multiple Victim Vulnerabilities on Rape Investigations in England and Wales”. Tom Smith will be reporting on a pilot study undertaken at the Bristol Magistrates Courts looking at the lack of local newspaper reporting of the courts. Tom will be presenting with Marcus Keppel-Palmer and the partners from the Journalism Department, Sally Reardon and Phil Chamberlain. An early report was made to the Society of Editors and quoted by John Whittingdale MP.

Looking at criminal offences in the context of sports law is Matt Hall who is presenting a paper based around his PhD research into the offences around alcohol and drunkenness at football stadia. Matt will be arguing the case for liberalising the laws which apply only in the context of football and not other sports. Matt will also be co-presenting a second paper in the Sports law stream with Marcus Keppel-Palmer reporting on their content analysis of sports photographs in national newspapers in a paper entitled “The Connoted Message of Sports Photography in National Newspapers”. Marcus will have a busy conference as he is also presenting a paper in the Law and Music stream entitled “Law, Outlaw and Deviancy in Bro Country”.

The week before Easter also sees the Association of Law Teachers Conference, to be held at Keele University, and amongst UWE’s researchers presenting papers there are Kathy Brown, Rachel Wood and Thomas Webber.

Amnesty International Expert Meeting on Brass Plate Companies and Illicit Weapons Trafficking

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Following Dr Mary Alice Young’s participation at the Amnesty International Expert Meeting on Brass Plate Companies and Illicit Weapons Trafficking in October, Dr Young’s suggestions have been included in a follow up report which will be presented to the newly re-established Committee on Arms Export Controls, with a view to presenting the work in an oral evidence session.

Dr Young’s recommendations include alternative methods to investigate, prosecute and stop the formation of brass-plate arms dealers who benefit from the UK’s relationship with financial secrecy jurisdictions.