On 6 July, groups and individuals from around the United Kingdom gathered to mark the annual LGBT+ Pride (‘Pride’) festivities in London. An estimated 1.5 million people filled the streets of the nation’s capital – proudly expressing their identity, supporting friends and family, or merely enjoying what has become one of the largest and most popular public celebrations across the country. In 2019, Pride events (both at home and abroad) have a particular significance – coming fifty years after the famous ‘Stonewall Inn Riots’ in New York City, which are often cited as a key moment for developing sexual orientation and gender identity (‘SOGI’) rights in the United States.
At the London Parade festivities last Saturday, representatives of most of the UK’s main political parties were present – publicly reaffirming their commitment to LGBT+ rights. However, it has been striking to observe the extent to which LGBT+ populations (and the potential impact of leaving the European Union upon their lives) have been absent from Brexit conversations.
In some ways, this lack of acknowledgment perhaps makes sense. As I have previously written elsewhere, while the European Union has been responsible for key SOGI-focused reforms in UK law, many of those developments (e.g. such as ‘sexual orientation’ and ‘gender reassignment’ employment protections) have now been enshrined in domestic legislation. The EU has been the catalyst for greater LGBT+ guarantees – but, without targeted repeal measures by future Parliaments, leaving the Union will not result in fewer SOGI-based rights.
Similarly, although EU membership has undoubtedly been a positive influence for LGBT+ people, it has not been directly responsible for many of the most high-profile developments. Reforms (such as decriminalisation in Northern Ireland, equal ages of consent and access to the military) are consequences of the European Convention on Human Rights (ECHR), while other advancements (such as same-sex marriage and extended adoption entitlements) are the result of political compromises in Westminster. Although many of these changes may have been inspired by the culture of openness and diversity which EU membership encourages (e.g. observing EU-peer countries, such as Belgium, Spain and Denmark adopting marriage equality), they were neither required by, nor will they be automatically lost after the disappearance of, Union law.
It is important, therefore, when considering the SOGI-related impact of Brexit, not to overstate or dramatize the potential consequences for LGBT+ communities. Yet, as I (along with barristers Jonathan Cooper, Anya Palmer and Keina Yoshida) have written elsewhere, there are legitimate reasons to be concerned.
First, although many SOGI-focused reforms, which have been mandated by EU law, are now enshrined in domestic statutes (and thus will survive post-Brexit), membership of the European Union currently maintains a minimum legislative floor. While UK lawmakers can provide (and have enacted) stronger equality protections, they must at least respect core EU guarantees. This is clear from the recent judgment of the UK Supreme Court in Walker v Innospec Ltd and Others – setting aside unequal survivor pension rights between different-sex and same-sex spouses. After Brexit, that important safety net will no longer exist, and Parliament will have greater latitude to amend key rights for LGBT+ communities (with only the more ambiguous requirements of the ECHR to observe). While no person is reasonably arguing that, once free of EU membership, Parliament will immediately affect wholesale removal of LGBT+ protections, there is a legitimate fear that future governments (perhaps with one eye on ‘trade competitiveness’) will reduce SOGI-based protections in subtle, yet important, ways. Recent comments during the Conservative Party leadership contest have certainly not helped to assuage concerns in this regard.
Second, while existing EU protections have been (for the most part) enshrined in domestic law, SOGI-focused guarantees within the European Union are constantly evolving. In 2018, the CJEU issued a landmark ruling extending the rights of individuals to travel with their third-country same-sex spouses throughout the Union. At present, various institutions within the EU are increasing their knowledge of, and seeking to formulate new policies which reflect, the reality of queer lives. When thinking about the benefit which LGBT+ persons in the UK derive from membership of the EU, it is important not simply to focus upon the existing acquis. Rather, in leaving the EU, queer communities in this country are also going to miss out on future developments. These potential future losses were brought into particularly sharp relief by the recent (2018) judgment of the CJEU in MB v Secretary of State for Work and Pension. In that decision, the Luxembourg judges extended their sex equality jurisprudence to condemn the UK for requiring that a trans woman annul her marriage before accessing pension entitlements which were consistent with her preferred gender. After Brexit, LGBT+ persons in this country will no longer benefit from SOGI-orientated advancements in EU law.
Finally, beyond legislative interventions, the EU is also a highly-effective soft law actor – undertaking or funding critical research into queer lives, supporting grassroots LGBT+ activism and mainstreaming SOGI-focused advocacy within core external relations. These steps have often been taken (and continue to be taken) against implicit (sometimes explicit) opposition from member state governments, including in the UK. By encouraging and supporting programmes to create visibility and understanding for queer lives, the EU – through its various institutions and agencies – has tangibly improved the social, political and economic position of LGBT+ individuals across the Union. No less than any other member state, queer populations and civil society in the UK have benefited from these soft law policies. In leaving the EU, and pulling away from the Union’s soft law programmes, LGBT+ communities in this country will be deprived of key resources, important opportunities and identity-affirming networks.
While the exact consequences of Brexit may be impossible to predict, for LGBT+ communities at least, there is much about which to be concerned.
On June 14th 2019, a group of academics, union representatives, civil society organisers, and members of food-related NGOs and think tanks gathered in Bristol along with the United Nations Special Rapporteur on the Right to Food, Professor Hilal Elver. The intention was to look closely at the condition of work and workers behind the UK food system. Throughout the day, we shared testimonies, experiences and accounts concerning the main challenges and obstacles faced by workers from farm to fork, including beyond the boundaries of the United Kingdom. We discussed trafficking, modern slavery, low wages, availability, technological innovation, migration, and several other issues that affect and characterize the life and the future of people who make our food possible. We have closely followed the ongoing conversations around the UK Food Strategy, including a consultation that opened just last week, along with the parliamentary debate around the Agricultural Bill and the proposals on the new post-CAP domestic settlement for agriculture. We have also been particularly attentive to the increase in household food insecurity in the country, in particular among farmworkers, farmers and workers within the food sector. It is striking that hunger, obesity and malnutrition are increasingly felt among those who produce and transform food.
In light of our research, experiences and conversations, we have listed below some of the main conclusions arising from our workshop. There is no food without labour, and because a healthy and justly rewarded workforce is essential to a sustainable food system, we consider that these elements should inform the whole process of the UK food strategy. When it comes to labour, the future of food is not only about a skilled workforce that knows how to use technology. It is about: an integrated approach and greater coordination within the food system; attention to the bottlenecks; a broad notion of food workers; intersectionality; transparency and visibility; protection, respect and fulfilment of the workers’ human and labour rights; access to justice and reliable enforcement; and fair access and use of technological innovation.
Integrated approach and greater coordination: A food strategy must be based on the recognition of the interconnected nature of all phases within the food system: from farm to post-consumption, food-related processes are interdependent. At the same time, a food strategy must recognise the central role that labour has in all phases (farming, transporting, processing, distributing, etc.), and that – given that 50% of the food consumed in the UK is imported – a significant part of the work behind our food is realised elsewhere. Thus, the UK food strategy must be structured around an interdependent approach to food which regards workers as one of its pillars (along with the environmental impact of the food system, the safety of food, the quality of food, its accessibility and sustainability, the fight against poverty and inequality, animal conditions, use, access and distribution of land and water) and that is not blind to workers and working conditions outside of the UK.
Attention to the bottlenecks: A food system is the combination of natural resources, ingredients, individuals, corporations, government actions, regulations, policies and any other element that define the way in which production, transformation, consumption and post-consumption of food take place. Each of the elements of the puzzle is connected with multiple levels though formal and informal links that are characterized by different levels of power. When it comes to workers and working conditions in the food system, the power of certain actors must be taken seriously. One of the priorities should be the assessment of major food retailers’ market power and the way in which it is exercised over suppliers in order to obtain cheaper products that often lead to a cut in workers’ protection and labour conditions. Given the expansion of private labelled products, our group suggests that the food strategy pays particular attention to the way in which vertical integration of supermarkets and retailers is affecting production and consumption beyond the usual patterns.
Broad notion of food workers: Food workers are not only those that are formally employed or officially self-employed, but also those that act informally, irregularly and without a proper status. Food workers are also the carers and volunteers (mainly women) whose non-paid labour is essential to the preparation of meals in the household, in a variety of community settings, in food hubs and in other social spaces. Food workers are also the volunteers of the food aid charities (like the Independent Food Aid Network – IFAN) and food banks, and their non-paid labour allows millions of people every year to access food aid in the UK. According to IFAN, volunteers contribute more than 4 million hours in support to UK foodbanks every year, an incredible amount of unpaid labour that is worth – at the national minimum wage – at least £30 million a year. Without the adoption of a broader definition of food workers, no food strategy could truly be integrated and holistic.
Healthy, Just and Safe works: Recently, some attention has been paid to the existence of modern slavery in the UK food system and in international supply chains that feed UK people and animals. Yet, the focus on contemporary forms of slavery as an exception of the food system has reduced the attention paid to other forms of exploitation. Be it the unsafe and unhealthy workplaces that lead to a large amount of injuries, the gap between current wages and real living wages, the combination of extended working hours, long commuting and the cost and scarcity of transportation, the non-existence of appropriate social provisions, and the inadequacy of support (including for mental conditions such as stress and depression) and benefits. A national food policy should put people at the centre, their health and safety as paramount, with just working conditions not being limited to forms of extreme exploitation like modern slavery.
Intersectionality: Food workers (in the broad sense) are not only workers. They are people whose gender, race, class, disability, legal status, etc., define and affect their potential to work, to access food and to live a decent life. In some cases, these elements represent an obstacle to the achievement of decent working conditions, the possibility to work and the access to an adequate amount of food. A food strategy must recognise the multiple challenges that people in particular conditions face and adopt an approach that is aimed at addressing them with coherence and justice.
Transparency and visibility: As the title of our workshop denotes, the labour and the workers behind food are often invisible to the wider public and the regulator. This has strong repercussions in terms of health, adequacy of the policies, labour conditions and the fulfilment of the workers’ human rights. A food strategy should be based on the recognition of the essential role played by the collection of data, the guarantee of public access to workplaces (including through local and national unions) and the compilation of an updated and holistic record of food workers (that adopts a broad notion of food workers and integrates the intersectional elements discussed above). Particular attention should be paid to the role of recruitment agencies, in particular to better understand the distribution of value between employees and intermediaries and to obtain more accurate data and statistics concerning the state of the workforce in the country.
Protection, respect and fulfilment of human rights: The United Kingdom ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1976. This treaty covers important areas of public policy connected to workers and food, such as the right to work; fair and just conditions of work, social security, an adequate standard of living, including adequate food, clothing and housing and the right to health. Already in 2016, the UN Committee on Economic, Social and Cultural Rights published its concluding observations on the UK highlighting the importance of a right-based approach to several areas, including job security, trade union rights and the rights of the most marginalised. In light with the UN report, we consider that a food strategy must be based on the protection, respect and fulfilment of human rights, not only of the eaters of food (e.g. right to access adequate food) but also of the workers who make food possible (including their own right to food). A rights-based approach not only promotes dignity and justice, but recognises that human beings have a legal entitlement (a right) to social protection and the enhancement of their lives that is matched by the obligation of public authorities to guarantee it: the right to work, the right to adequate working conditions, the right to job security, the right to food and housing, etc., are not an optional but a central component of a democratic state based on the rule of law.
Access to justice and reliable enforcement: in the 2016 report, the UN Committee on Economic, Social and Cultural Rights stated that the UK government should act in order to make sure that “disadvantaged and marginalised individuals and groups should have access to justice and legal aid” and that “the Government should consider the impact on human rights in their international development work.” It is our shared understanding that the latest reforms of the Employment Tribunal System, including the introduction of the employment tribunal fees in 2013 then ruled contrary to UK and EU law in 2017, increasingly made it more difficult to bring cases against employers. The lack of an effective access to justice and a reliable enforcement of rights represents one of the main obstacles to the construction of a fair food system that treats workers fairly and according to their needs. Lack of funds, fear of retaliation, individual vulnerabilities, and the absence of adequate public support for workers, unions and civil society organisations significantly impede the realisation of the rights that should be at the centre of a holistic food strategy. Moreover, the food strategy should be structured having in mind that corporate decisions made within the UK and national policies may have an extraterritorial impact on the rights and conditions of workers operating in other jurisdictions. In accordance with the concept of Extraterritorial Human Rights Obligations of states (ETOs) developed in the Maastricht Principles, access to justice and reliable enforcement should also be guaranteed to individuals and groups working outside the UK who are directly affected by the actions and decisions made by UK private or public actors.
Enhancing Legal Awareness: A food strategy that takes workers’ rights seriously should make sure that employers, individuals, unions, civil society organisations and any other actors involved in the food system are fully aware of their rights and obligations. This includes, for example, the existence and role of the Gangmasters and Labour Abuse Authority (GLAA), the broad framework of human rights that are directly or indirectly recognised within the UK legal system, the role of the Competition and Market Authority in addressing abuses of dominant position and the existence of a Groceries Supply Code of Practices and a Groceries Code Adjudicator with the power to investigate and sanction retailers.
Fair access and use of technological innovation: A final point of concern regards the link between technology, labour and the future of the UK food system. Technological innovation has been permeating all phases of the food chain: precision farming, drones and hybrid seeds, smart-animal factories, bar codes, robotized warehouses and the expansion of food delivery apps (gig-economy or platform economy) are transforming conditions of labour from farm to fork. Although technology has the potential to improve the labour conditions by enhancing productivity and reducing intensity, there is a perceived risk that it can also lead to higher unemployment, higher intensity, increased dependency of farmers and workers (to costly machineries or to the intermediary platform), reduction of biodiversity, concentration of market power in the hands of a few companies and the harvesting and control of data generated when using these technologies. A food strategy that is based on the premises of a just and sustainable food system for the future should be aware of the double edge sword of technology and make sure that public interventions (i.e. subsidies to 5G and smart-agriculture) are realised only after an effective and comprehensive study of their social and environmental implications.
There cannot be a healthy food system without safe, healthy and fair working conditions. There cannot be a national food strategy without a strategy for workers in the food system (including those who are informally working and those who are providing care work). The principles, vision and aspirations presented above are just an overview of the interconnected and interdependent relationship between food and labour. We thus hope for this letter to become the starting point for a longer, horizontal and comprehensive conversation on the best ways to build a food strategy that is not oblivious of the people who make food and feeding possible.
Tomaso Ferrando, Lecturer in Law, University of Bristol Law School
Polly Lord, Exeter University
Matias Rodriguez-Burr, University of Bristol Law School
Hilal Elver, UN Special Rapporteur on the Right to Food
Deirdre Woods, Co-Chair of Trustees, IFAN
Vicki Hird, Convenor of the Farm and Food Policy working Group – a project of Sustain: the alliance for better food and farming
Jyoti Fernandes, Land Workers Alliance
Dan Crossley, Executive Director, Food Ethics Council
Donatella Alessandrini, Professor, University of Kent Law School
Susan Newman, Associate Professor, University of the West of England
Lydia Medland, University of Bristol
Heidi Saxby, University of Newcastle
Ronnie Draper, General Secretary, BFAWU
Huw David Thomas, Lecturer in Management and Industrial Relations, University of Bristol
The question of local authority liability in negligence for failing to intervene to protect vulnerable parties from harm has been discussed by the highest UK courts in recent years. Local authorities have statutory powers to intervene to assist citizens in need. When, then, should they be liable for failing to intervene to protect citizens from harm from third parties? In recent years, the Supreme Court in two cases relating to the police sought to move away from policy-based analysis (seen famously in the controversial decision in X (Minors) v Bedfordshire CC  2 A.C. 633) to one based on traditional common law approaches to omissions and precedent: see Michael v Chief Constable of South Wales  UKSC 2 and Robinson v Chief Constable of West Yorkshire  UKSC 4. These cases draw an important distinction between a defendant who harms the claimant and one who fails to stop a third party harming the claimant. The second situation will not generally give rise to liability unless:
A relationship exists between the parties in which one party assumes responsibility for the welfare of another; or
The authority can be said to have created the source of danger or
The third party who has harmed the claimant was under the defendant’s supervision or control.
The latest Supreme Court decision in Poole BC v GN  UKSC 25, delivered on 6 June 2019, marks an attempt by the Court to provide clearer guidance to litigants, while trying to reconcile somewhat contradictory earlier case-law. It is a rather complex decision – although given in a single judgment – and an important one. The purpose of this blog, therefore, is to explain the Court’s reasoning and give some indication of its implications for future case-law development.
GN raises once again the difficult question of the extent to which the law of tort should get involved in social strife. Here two children (one suffering from severe physical and learning difficulties) and their mother had, in May 2006, been given local authority housing next door to a family known for anti-social behaviour. Sadly, the mother and children were subjected to abuse and significant harassment by these neighbours over a number of years. The local authority and police tried to intervene, but without success. The younger child became suicidal and ran away aged 10. Finally, in December 2011, the family was rehoused. A Home Office independent report was critical of the police and of the council’s failure to make adequate use of powers available under anti-social behaviour legislation. During the period in question, both children had been identified by the council as children in need as defined in the Children Act 1989, and had social workers allocated to them. The claim then rested on the allegation that the council had been negligent in failing to exercise its powers under the 1989 Act so as to protect the children from harm at the hands of third parties.
The Court of Appeal
The Court of Appeal ( EWCA Civ 2185) had struck out the children’s claim. In its view, two considerations militated against liability: first, liability in negligence would complicate decision-making in a difficult and sensitive field and potentially divert the social worker or police officer into defensive decision-making (the policy argument) and secondly, in general, there was no liability for the wrongdoing of a third party, even where that wrongdoing was foreseeable (the omission argument). It also refused to follow the decision of D v East Berkshire Community Health NHS Trust  EWCA Civ 1151 which had suggested that a local authority might owe a duty of care to children in certain circumstances (here negligent investigation of suspected child abuse). The Supreme Court also struck out the claim, but for different reasons to the Court of Appeal.
The Supreme Court
Despite rejecting the children’s claim on the facts, the importance of GN lies in the UK Supreme Court taking the opportunity to offer guidance on the potential liability of local authorities for negligent failures to exercise its statutory powers to intervene to protect victims from harm caused by third parties. Reviewing the leading cases on this point over the last 25 years, Lord Reed (giving judgment) outlined three key principles
Public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived. In that way, says the Court, the courts can continue to take into account the difficult choices which may be involved in the exercise of discretionary powers (para 75);
Public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and
Public authorities can come under a common law duty to protect individuals from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty. This would include where the local authority has created the source of danger or has assumed a responsibility to protect the claimant from harm (again unless the imposition of such a duty would be inconsistent with the relevant legislation).
The Court reiterated the fundamental division between situations where the local authority via its staff actively harms individuals (as in Robinson) and where it fails to act (as in Michael). Different rules will apply. What is noticeable, however, is that the policy debate found in X v Bedfordshire is no longer part of the court’s reasoning. Indeed, X, states the Court, “can no longer be regarded as good law in so far as it ruled out on grounds of public policy the possibility that a duty of care might be owed by local authorities or their staff towards children”: para. 74 (emphasis added). Under the new approach, then, the court must consider in the first place whether the case is one in which the defendant is alleged to have harmed the claimant, or one in which the defendant is alleged to have failed to provide a benefit to the claimant, for example by failing to protect him from harm. If it is a case in the latter category, then generally liability will only arise if there has been an assumption of responsibility. Policy does not come into it.
How easy will it be to prove an assumption of responsibility?
This is key and will depend heavily on the facts of each individual case. The court will look for evidence of an express or implied undertaking amounting to an assumption of responsibility. In most cases, such an undertaking will be implied; the court finding it foreseeable that the claimant would rely on the authority exercising reasonable care towards them – note that this is an objective test. Going back to X v Bedfordshire, the Court held that the social workers had correctly not been found liable in the child abuse cases. They had not assumed any responsibility towards the claimants. They had been providing their professional services to their employers, not the claimants, and it was not reasonably foreseeable that the claimants would rely on these reports. In contrast, in Phelps v Hillingdon  2 A.C. 619, where the child (through his or her parents) was the intended recipient of professional advice, or could be expected to rely on advice provided to the local authority, there could be an assumption of responsibility giving rise to a duty of care. Equally, unlike the Court of Appeal, it was happy to stand by the decision in D v East Berkshire but reframed the case as one involving doctors and social workers allegedly causing harm to the child by separating her from her father due to unfounded allegations of sexual abuse and not one of failing to protect her from harm.
The test, then, is whether the local authority has undertaken the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken. The Court was happy to accept that a public body which offers a service to the public will often assume a responsibility to those using the service e.g. hospitals, private or public, offering medical treatment to patients. However, by simply investigating and monitoring the position of the claimants, the local authority here had not provided a “service” on which the children or their mother could be reasonably expected to rely. Further, even though individual social workers and/or social work managers and other staff employed by the defendant had been tasked with investigating the plight of the claimants, the assessments of the claimants’ needs had been carried out on the council’s instructions, and provided the council (and others who may have been involved in decision-making) with information and professional advice about the children for the purpose of enabling the council to perform its statutory functions. There are been therefore no individual assumption of responsibility to the children by the social workers for which the council could be vicariously liable.
In GN, the Supreme Court has established a legal framework for future claims. It has made it very clear that no longer will arguments based on “policy” be sufficient to justify rejecting the imposition of a duty of care on local authorities for failing to protect victims against harm caused by third parties. Instead, the court will follow a set procedure with a primary focus on whether an assumption of responsibility has given rise to a duty of care. Lord Reed reiterated the concerns in Robinson that the policy arguments found in Caparo v Dickman  2 A.C. 605 had proven too influential and that they should be confined to novel cases where the question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. Over-enthusiastic application of the Caparo test “had in practice led to evaluations of public policy which the courts were not well equipped to conduct in a convincing fashion”: para 30.
The fact remains, however, that the claimants in this case lost. As in Michael, it seems that the less that is done for the claimants, the less likely the local authority will be deemed to assume responsibility to them for their welfare (here, if the council had taken the children into care, for example, it would have owed them a duty of care). How easy, then, will it be in practice to show an assumption of responsibility? Let us consider briefly X v Hounslow LBC  EWCA Civ 286. Here no assumption of responsibility was found towards vulnerable adults where the housing and the social services departments were found to have simply been trying to exercise their statutory functions, no more and no less. Much seems to lie on the precise interaction between the parties and the readiness of the courts to find an assumption of responsibility. If, as indicated in the Michael and Hounslow decisions, the courts take a tough line on this, we might wonder whether the Supreme Court is giving with one hand (no policy bar to a duty of care) and taking with the other (no assumption of responsibility for exercising statutory function in the absence of clear evidence of an undertaking to the victim). The burden will, of course, lie on the victims to provide evidence of this undertaking.
The reality of the GN case is that a vulnerable family had been brutally harassed by their neighbours. The easiest solution would have been to rehouse the family, but this requires resources and there was no statutory duty on the local authority to do so; the House of Lords having ruled that the provision of residential accommodation to rehouse a child in need so that he can live with his family is not the principal or primary purpose of the 1989 Act: R (G) v Barnet London Borough Council  UKHL 5. Criminal law had failed the family. Tort law, as we can see, does not lend itself well to the broader questions of social policy raised in this case. GN, however, leaves one final question unanswered: in the light of Michael (no assumption of responsibility) and GN (ditto) just how willing will the courts be to find a duty of care in this category of cases?
In April the Financial Conduct Authority issued a Feedback Statement (FS19/2) on its Discussion Paper (DP18 /5) ‘A duty of care and potential alternative approaches’ affecting the financial services industry. The Feedback Statement reports on the outcomes of the consultation and summarises the views of those who responded to the consultation. This is a topic that has been on the regulatory agenda for several years, originally initiated by the Financial Services Consumer Panel (FSCP), but also considered by the Law Commission and the House of Lords Select Committee on Financial Exclusion, with varying degrees of support. The authors have assessed these reform proposals in an earlier blog post. Whilst it is difficult to draw any firm conclusions from this round of discussions as to the FCA’s future policy in this area, it does indicate how the FCA’s work on this topic is developing.
What has the consultation shown?
Possibly the most interesting fact to emerge from the consultation is that there is a widespread belief that the working of the financial services industry is causing harm to consumers, although few firm examples of such harm are offered. It is not clear whether this criticism is directed exclusively at banks or extends to the whole of the financial services industry. The FCA has called for respondents to the survey to provide evidence supporting this assertion.
Despite the work in this area being structured around the suggestion of a new ‘duty of care’, there is no reference in the paper to the traditional ‘tort’ style duty of care. The decision which was made earlier to widen the scope of the discussion has left that approach way behind. In line with the focus of the Discussion Paper, the FCA references a ‘New Duty’ to discuss the various options for reform, however the discussion must now be seen as one on the creation of new consumer protection duties within the financial services industry, rather than one concerning new duties of care. The title of the Feedback paper is therefore misleading.
However, there is little enthusiasm for a solution which would require legislation. The FCA does not currently feel that there are compelling reasons for legislative reform and the majority of respondents opposed the creation of a statutory duty of care. The reasons given for this were that such a duty would be vague, would duplicate existing provisions and would raise issues of consistency between various remedies. Litigation based on breach of such a duty would take a long time to produce useful guidance, would produce stress for those pursuing a remedy and could be prohibitively expensive in many cases. The fear was expressed that such a duty would have a negative impact on the industry.
There is no explicit reference to SMEs at any point in the Statement, but the reluctance to support new litigation remedies suggests strongly that the recent reforms to the Financial Ombudsman Service (which mean that a greater number of SMEs now receive the FOS protection previously confined to private persons and micro-businesses and that there is a higher limit on awards) are taken to be sufficient to protect their interests. There is no suggestion that the FCA is considering the creation of a Financial Services Tribunal as a way of improving the protection of consumers. The clamour in favour of the creation of such a tribunal seems to be waning.
There is also considerable opposition, although it is not unanimous, to the solution of making a breach of the FCA’s Principles for Businesses actionable by those who have been harmed. This opposition is linked to support for the view that the FOS is a more suitable forum for the resolution of consumer claims than litigation.
The FCA’s apparent rejection of a ‘one size fits all’ solution suggests that it is accepted that this debate has been centred on the behaviour of banks and that the impact of changes on the wider financial services industry needs to be taken into account. It also acknowledges the complexity of the challenges faced when tackling the question of reform in this area: any additional obligations placed on firms needs to be proportionate to the harm posed and different products can cause different types of harm to different groups of consumers.
There is little enthusiasm for a solution which would place a fiduciary standard, such as to avoid all conflicts of interest, on the industry and only passing reference is made to levels of duty stricter than those of reasonable care, such as a requirement to act in the customer’s ‘best interests.’ Given the importance of such standards in the FCA’s current Handbook, it is strange that a discussion of this did not feature more prominently in the Statement. It creates a complex web of differing duties targeted at specific functions which wide ranging general duties must take into account. For example, a financial adviser who recommends an investment to a private client is concerned with satisfying the detailed MiFID ‘suitability’ requirements, not with a general obligation to take reasonable care. This demonstrates how different standards are being utilised within the existing FCA Handbook and could inform the discussion surrounding any reform in this area.
While there is a degree of consensus on what a ‘New Duty’ should not be, there does appear to be widespread support for the view that improvements need to be made in the regulatory system. It is felt that the FCA should act more rapidly when regulatory breaches occur and that the Authority needs to be more transparent about the standards which it expects the industry to meet: it needs to be clearer about what comprises good practice. Some commentators are of the view that the current regulatory system remains a rule based one which encourages a ‘tick box’ approach to compliance. This seems to indicate that the concerns surrounding consumer treatment in the financial services sector are the result of regulatory failings and poor enforcement, rather than of those in the regulated sector.
Where are we going on this?
The FCA has committed itself to concentrating the next phase of its work on two issues: the way in which it applies the regulatory framework and the development of new or revised Principles for Businesses. Consumer protection remains central to these issues. It is these areas which will be the primary focus of the Authority as it takes this work forward. This approach is a considerable way distant from the original proposals for a new duty of care which emerged a few years ago. As there is considerable opposition to the creation of new litigation remedies and to making the Principles for Businesses actionable, it is now unlikely that this project will lead to any new rights for those damaged by bank misconduct.
For this discussion to arrive at sensible conclusions as to potential reform, the FCA needs to provide clarity as to the type of consumers they are concerned about and the harm they are seeking to address. Currently, it appears that ‘consumers’ is widely defined, thus incorporating a variety of interests affecting all consumer types. It would be useful for confirmation from the FCA as to whether or not this work is intended to increase protection for SMEs given the historical challenges they have faced.
But, the substance of what is being proposed remains undefined. The nature of the harm being suffered is not spelt out and no clear solutions have emerged. Indeed, the FCA accepts that one of the key things which it must do in taking this project forwards is to understand the different kinds of harm suffered by consumers. If changes in this area are to be effective, it is important to distinguish between areas of harm where the FCA has, or is, taking action to remedy problems faced by consumers and new areas of harm that do not fall within the current legal or regulatory framework. It also needs to be asked whether problems identified are actually covered by existing controls. Identifying the underlying problems will enable an assessment as to whether or not these problems fall within the existing regulatory framework and there has been a failure of regulation or in the enforcement of existing regulation. Currently, however, the only examples provided in the Statement are those of bank branch closures and the removal of ATMs. These examples are particularly problematic ones: they are areas of commercial decisions which impact customers, not misconduct by banks. Indeed, they illustrate a problem that can arise when a commercial company (in this case a retail bank) provides a public service (access to the payments system) which ceases to be commercially viable. Whether any reform should impact the bank’s ability to make decisions as to their commercial strategy needs to be considered. The tension between the interests of the bank and the customer in this situation is clear. Yet, in this context, the recent Treasury Committee publication on Consumers’ Access to Financial Services has indicated that if the number of bank closures does not decrease, steps should be taken to mitigate the impact of these closures.
Although it is planned to consider possible revisions, as yet no gap in the Principles for Businesses has been identified. Indeed, they seem to be relatively comprehensive. Some suggestions for revising the Principles are noted, but all, such as the introduction of a reasonable foreseeability test, would seem likely to introduce new vagueness into a system which is being criticised for its lack of clarity. Any changes to the Principles would also require the FCA to consider its principles for good regulation in the course of doing so. A key feature of these principles that has arisen throughout this debate is the requirement that the Authority consider the general principle that consumers take responsibility for their own actions. Getting the balance right between introducing changes to the Principles for Businesses whilst ensuring that consumers take responsibility where it is appropriate for them to do so will be challenging in an industry as diverse as the financial services sector. The FCA have committed to initiate work assessing the operation of their Principles for Businesses, but as the majority view in the consultation has opposed making the Principles actionable any revisions would only operate at regulatory level or in claims made to FOS.
It must also remain doubtful whether any changes in the Principles for Businesses will have a substantial impact on the culture in the industry. Indeed, nothing emerges in the feedback which suggests that there is a consensus on how the culture in the industry can be improved. Considerable faith appears to be being placed on the Senior Managers and Certification Regime achieving significant cultural changes. However, there does not seem to be an obvious way forward if that development is unsuccessful.
It is likely that the attention which is to be paid to the FCA’s enforcement strategy will emerge as the most significant element of this exercise. In their ‘Approach to Enforcement’ document, the FCA emphasises that there needs to be serious misconduct for the FCA to decide to act with regards to misconduct. It is, therefore, questionable what impact any changes on the Principles for Businesses will have without changes to this enforcement approach too. The reality is that the FCA’s enforcement work is bound to be limited both by the resources available to it and by practical issues concerning the rights of those individuals whose conduct is being investigated. The Authority may be able to improve its performance, but it has to be recognised that it is regulating a complex and devolved industry.
This debate has brought several significant questions regarding the regulation of the financial services sector to the fore. To what extent does the current regulatory regime need to be reformed to improve the protection available to consumers? This discussion has moved the debate forward and helped to clarify potential routes the regulator might pursue to improve consumer protection. However, it remains to be seen exactly what is going to come out of this particular project; it is possible that the focus on enforcement and the Principles for Businesses will feature in the future. It is also possible that changes in this area will have very little impact.
It is expected that this debate will continue. Since the publication of the FCA’s Feedback Statement, the Treasury Committee have reported on consumer access to financial services, indicating in this report that if the FCA is unable to resolve the difficulties in this area through the use of their existing powers, they would support the introduction of a legal duty of care. It is hoped the FCA’s planned Autumn 2019 publication on the duty of care work will produce some firm conclusions as to the future of this area of regulation.
Brexit, its research and its teaching are increasingly becoming a field of study on their own—see eg the illuminating contributions to the special issue edited by C Wallace & T Hervey on ‘Brexit and the Law School’ (2019) 53(2) Law Teacher 133-229, some of which build on the earlier series of SLS ‘Brexit and the Law School’ Seminars, one of which Albert had the pleasure to host at the University of Bristol Law School in July 2017. This seems rather natural, as it is hard to overstate the impact that Brexit is having on the work of academics active in all areas, but particularly for public and EU law scholars. In this post, we offer some personal reflections on the frustrations of carrying out Brexit-related research, some of which are related to Brexit and its unforeseeability, while others are derived from more general constraints on the ways legal research is published and assessed.
Researching a moving target …
The first issue that concerns us is the need to try to foresee what is likely to happen along the Brexit process (itself unknown and highly volatile), which puts legal scholars in a difficult bind because this is clearly a politics-driven phenomenon that curbs almost every imaginable rule or precedent remotely applicable to a comparable situation. We are not sure that legal scholars are in the best position to offer policy forecasts but producing research that is of any use to policy-makers requires such an effort.
This seems to broadly lead to two alternative approaches. First, a descriptive approach resulting in research that outlines multiple different scenarios and provides limited additional guidance on what the researchers think is the most likely outcome. The difficulty with this research is that it may enable policy-makers to opt for any of the described scenarios and claim it has academic backing, regardless of the likelihood or desirability of such scenario. Second, a prescriptive approach resulting in research that stresses what should happen and probably also covers an analysis of alternative scenarios and the reasons why they are not desirable. The difficulty with this research is that the moment the favoured scenario is discarded in the political process, the entirety of the research loses relevance.
Opting for one approach or the other is difficult and, in our experience, trying to avoid that choice is increasingly conditioning the type of research that is carried out. It is also pushing legal scholars to act as practicing lawyers or consultants and pepper their research with caveats to avoid being seen as too clearly pegged to any specific future outcome. The problem is that this obscures legal analysis. Of course, offering an unqualified opinion has its risks. Most recently, we were proven mostly right regarding the process for the UK’s accession to the World Trade Organisation Government Procurement Agreement—except for a timing issue. However, this required us to take a jump and our first ‘Brexit and procurement’ piece could have been a disaster if things had turned out differently. It would have been frustrating to see our research shelved simply because some of our predictions turned out to be wrong. Adding this element of risk-taking to legal research makes researching on moving targets such as Brexit less than plain sailing. Was that a fair risk to take? Would we do it again?
… with an eye on how that research will be evaluated
The second issue we find troubling concerns the impossibility of squaring the circle between producing ‘high quality’ peer-reviewed publications and keeping up with the developments of the Brexit process in a timely manner. Given the requirements of the REF2021, UK-based academics are under pressure to meet requirements of ‘originality, significance and rigour’ that are assessed in a qualitative manner that is (largely?) driven by reputation-based criteria such as eg the journal where research articles are published. This puts pressure on submitting research to a relatively limited number of prestigious journals that are increasingly clogged (as the REF deadline approaches) and thus have a long lead time between acceptance of a piece and its publication.
To put it plainly, in the Brexit context, this results in the eventual publication of outdated analysis, which is also a source of frustration for legal scholars. Once again, this happened to us with our second ‘Brexit and procurement’ piece, which has been published after some political developments have put a massive question mark on the practical relevance of most of our analysis of the procurement chapter of the UK EU’s Withdrawal Agreement now repeatedly rejected in Parliament. Whether our research will be of use or a piece of extemporary legal fiction is out of our control.
Of course, there are some ways in which researchers can try to mitigate this issue—such as eg posting drafts on institutional repositories or databases such as SSRN, or publishing blogposts—but the fact remains that those are not (suitably) ‘REF-able’ outputs and thus researchers still need to repackage their research and try to have it published (properly).
Given these potential sources of frustration, we would not be surprised if more and more scholars moved away from Brexit-related research—at least in traditional formats. We would however be very surprised if the way legal research (and that of other social sciences) is assessed was to be impacted by Brexit, in the sense of adapting evaluation rules to cover non-traditional research outputs (ie blogs and, increasingly, twitter threads) and to reduce the perverse incentives for the gamble of taking up journal space with research that may or may not ever be of relevance.
Monday last week saw the announcement of a new national policy requiring criminal complainants to sign consent forms authorising detectives to access data in their mobile phones. Conveyed in a joint briefing by Metropolitan police assistant commissioner Nick Ephgrave and director of public prosecutions (DPP) Max Hill QC, the new policy is designed to ‘ensure all relevant lines of enquiry are followed’ and that any material that undermines the case for the prosecution or assists the case for the accused is detected and disclosed to the defence. While the forms are not to be used solely for sexual offence complainants the use of the forms in these cases was a major focus of Monday’s briefing. While the CPS noted that not all sexual offence complainants will be asked to divulge digital data it is likely, given that most sex crimes occur between parties who are known to each other, that a high proportion of those complaining will be asked to sign a consent form and hand over their phones and the data therein.
Following the robust objections of many rape survivors’ advocacy groups to the new policy, the CPS and police late last week invited victims’ groups to discuss their concerns about the new consent form. Over the weekend, the Association of Police and Crime Commissioners took the unusual step of publicly objecting to the introduction of the consent form, labelling it a risk to public confidence in the criminal justice system.
There is a lot to unpack in this announcement and in the new policy. The policy is almost certainly a response to the revelation last year that 47 rape or sexual offence prosecutions (from a review of cases proceeding during only January and February 2018) were discontinued when it was alleged the CPS had failed to disclose exculpatory evidence, much of it digital, to defence teams. The policy must also be assessed with the most recent Home Office statistics bulletin in mind, which showed that in the year ending December 2018, only 1.7% of recorded rapes had proceeded to prosecution. A cynical reading of this policy announcement might suggest that the DPP and his associates appear to be buffering themselves against criticism of their increasingly risk averse approach to prosecution of sex crimes and in preparation for the next round of what is sure to be more dismal figures of criminal justice outcomes by laying the blame for failed or declined prosecutions elsewhere.
And what of the consent form itself? According to the CPS:
The form makes clear investigators should respect individual rights to privacy and not go beyond reasonable lines of enquiry. They set out what they consider reasonable in the context of the allegation and why. These requests must not be purely speculative.
While this type of reasoning might appear at first glance logical and reassuring, to anyone with any knowledge of the past and present of criminal justice treatment of sexual violence complainants it is alarming. If we have learnt anything from sustained feminist analyses of the use of sexual history evidence in sexual offence trials, recourse to the reasonableness or ‘common sense’ judgement of criminal justice actors is often barely disguised cover for the status quo in which rape myths govern the boundaries of relevance (Conaghan and Russell 2014, 42-43). Another aspect of the form that has barely received a mention in mainstream coverage over the last week is a clause stating that if investigators find any information from a complainant’s device that suggests the commission of a separate criminal offence, other than the one under investigation, the data may be retained, investigated and shared. For vulnerable or precarious complainants who may be engaged in illegal work or have indeterminate immigration status this clause is of particular concern. The entreaties of Hill and Ephgrave for victims to just have ‘trust and confidence’ in the criminal justice system ring particularly hollow given the consistent failure of the bodies they lead to improve outcomes for sexual violence survivors.
While these foregoing points deserve sustained treatment, I am interested here mainly in the language deployed by criminal justice actors and their critics in announcing and responding to the policy and what they can tell us about the treatment and role of sexual violence complainants within the system more generally. Opening their report on the briefing, the Guardian paraphrased Hill and Ephgrave as follows: ‘Victims of rape and serious sexual assault who refuse to give police access to their mobile phone contents could allow suspects to avoid charges, two top officials have said.’ Everyone needs to understand, Hill is quoted as saying, ‘that if they get caught up in a crime, whether as witness or complainant, there may be information on their mobiles that is relevant.’ Complainants have the opportunity to say I don’t wish to hand over their digital data, added Ephgrave, ‘but we also have to make it clear that if that’s the position then it may not be possible for the case to proceed.’
It is hard to avoid the symbolic mirroring of an offence like rape itself in the framing of the issue of giving or withholding consent to disclose digital data by Hill and Ephgrave here. Victims are said to allow suspects to avoid charges; their decision to withhold consent for police to access their personal data causally related to sexual offenders avoiding criminal justice. We see similar causal reasoning in several important rape myths: a victim enables or provokes a rape by being too intoxicated, by dressing salaciously, by flirting, by not saying no enough times etc. So too with Hill’s warning that victims must understand that if they ‘get caught up’ in a crime their data may be relevant to an enquiry. If you are caught up in something, ‘you are involved in it, usually unwillingly.’ To get caught up is ‘to become unexpectedly involved in an unpleasant or annoying situation.’ An example of common usage might be: ‘He got caught up in the demonstrations and got arrested.’ What does it mean to say: ‘She got caught up in a rape’? Though it was unwilling involvement, it was incidental in a sense to everyday life or to the circumstances in which one finds oneself, ‘unexpected’, ‘unpleasant or annoying’. This unconscious trivialising of sexual violence in the language of the DPP is telling, in my view. As I’ve argued elsewhere, the law is almost structurally incapable of comprehending the harm of sexual violence, particularly those that occur between current or former intimates and lack the indicia of what is commonly referred to as ‘real rape’ (Russell 2013).
Ephgrave makes a similar move when he says that complainants ‘have the opportunity’ to decline their consent for police to access their data, but that the consequence of exercising such a choice is that ‘it may not be possible for the case to proceed.’ The implication here is that there is a price to be paid for justice, that price might be measured in the privacy or dignity of a complainant, but that is what access to the system costs. I’m interested in the way that privacy is mobilised here and also picked up by some feminist commentators as the right that is being most egregiously violated by the use of a blanket power to access digital data and the requirement that a complainant agree to the use of this power, or else.
As Lise Gotell notes, sexual violence complainants occupy a liminal position in the criminal justice apparatus between the state and the (presumed innocent) accused. While a complainant’s interests are usually aligned with the state’s they are often expendable, necessarily yielding to the defendant’s right to a ‘fair trial’ (Gotell 2005, 775). The individualised norms of criminal law exacerbate this process in which ‘the recognition of substantive equality and … acknowledge[ment of] the collectivized realties of systemic privilege and dispossession’ is frequently missing (761). Privacy, its emptiness, ‘nothingness and negativity’ when relied on to express the concerns of complainants, will often be subordinated to the rights of the accused, ‘viewed within the traditional framework of criminal law as more compelling and significant’ (752-753).
I argue that we need a much more historically situated and theoretically dexterous understanding of what is occurring within the criminal justice system in sexual offence cases if we are to grasp what is required to resist it. While pragmatic legal solutions to ameliorate the effects of a policy like the one currently under discussion are important, we must place a policy like this within the broader machinery of criminal justice to observe its function. It is common to hear victim/survivors of sexual violence refer to their experience of interacting with the criminal justice system (and in particular, the court process) as being like a ‘second rape.’ In recent work I argue that it is important to try and understand what precisely this means and what contributes to it. I mention this because I think there is continuity between the ‘second rape’ of the courtroom and what amounts to the bullying of complainants to disclose ever-greater levels of personal information to criminal justice actors to earn the chance to have their claims validated.
What does it mean to say that one has been raped by the law, or by the courtroom? Through what conceptual frame can we understand such a claim? I think that question is best understood as one about the nature of Being. Stephen Seely’s reading of Irigaray in conversation with Heidegger on the ontology of modern planetary technicity is instructive here (Seely 2017). In his work concerning the question of technology, Heidegger claims that planetary technicity is the ontology of the modern age. ‘Modern technicity… is identified… by a general ontological comportment in which everything is positioned as inventory in a “standing reserve” that is constantly available for human appropriation and manipulation.’ Under these conditions, Being is reduced to a simple process of the ordering of parts of the standing reserve, and thinking is merely a functional or calculative exercise to determine the most efficacious mode of accumulation (45).
The tekhne of ancient Greece represents the origin of modern technicity, which captured the revealing of Being by human know-how rather than by physis (nature) (45). ‘Technicity is a progressive process of converting everything that is into a product of tekhne, that is, of stripping it of any natural ends or principles so that technics can relate only with themselves’ (47). Regardless of their own intentions or motivations, humans are themselves conscripted into the production line of technicity, ‘which seeks only its own totality’. ‘The planet is nothing but an assemblage of technical possibilities and goals that are ontologically equivalent’ (46).
Because nothing has any value in itself, says Seely, technicity is fundamentally nihilistic: ‘Planetary technicity then is both “biopolitical” and “necropolitical” as it works to denature life and death by converting them into objects of technical-scientific representation, production, management, and administration’ (47). Seely highlights in Irigaray’s dialogue with Heidegger the importance of seeing this process first and foremost as sexuate:
…[I]t begins with the ontological annihilation of birth and the living sexuate body and is, therefore, a death project from the start; it is only on the basis of this ontological annihilation of life – this Being-towards-death – that the global death project of technicity, and that of European Man’s technical domination of the rest of the planet can proceed. …Irigaray understands the project of technicity as a sexuate project that is grounded in the desexuation and devitalisation of the cosmos, which conflates a phallocentric understanding of Being with Being ‘as such’ (48).
I think we can see the global death project of technicity quite clearly through the operation of the criminal justice system as it interacts with sexual violence complainants. In such a system legal processes are productive of a particular nihilistic becoming; a Being-unto-death. This occurs via the rendering of complainants as tools or objects in the service of maintaining the integrity or coherence of the system. Stripped of their lived, or sexuate, being-ness they are converted into standing reserve in the service of the machinery of criminal justice. The complainant here functions primarily as the mirror or the matter upon which the criminal justice apparatus constructs itself (Russell 2016). In a system whose primary goal is its own totality and which seeks the ever more efficient ordering of objects of ontological equivalence it might become easier to understand why the experience of that interaction could be realistically described as like a ‘second rape.’
If we can see policies like the state-sanctioned bullying of complainants to disclose personal data to criminal justice actors to earn the chance to have their claims validated as not an anomaly or aberration in an otherwise functional system with which we share the same goals, but as a component part of a machinery whose primary goal is merely the reproduction of itself we may be able to grasp better the techniques required to resist it. Until that time and always, solidarity with all rape victim/survivors and fuck the patriarchy.
Building on years of work by Kevin Cahill, Doreen Massey, Andy Wightman, Anna Powell-Smith and James Meek – along with Domesday Book, the 1873 Return of Owners of Land and Lloyd George’s 1910 Valuation Office Survey – Shrubsole is able to build a picture of property dominance by a few, estimating that half of England is owned by less than 1% of the population (at least 30% of whom are aristocracy and gentry). According to Shrubsole, the state now owns 8% of England’s land mass, although it used to be much more. In fact, Christophers estimates that approximately two million hectares, or ten percent of the Britain landmass, have left the public sector for private ownership between 1979 and 2018.
So why does land ownership matter? As all law students learn, land ownership brings with it rights and privileges (as well as obligations, in respect of taxation and occupiers liability). Unless there are specific exceptions, the land is mapped as right to roam access land, for instance, or as a highway, the landowner can ask any person to leave: refusal converts entry into a trespass. As owners, landlords can charge market rents to let out their houses, developers can – subject to planning – transform former libraries and convert them into flats. Land ownership brings prestige, power and the potential for profit.
When land is privatised there are four key consequences of this “denationalisation” (apparently, Margaret Thatcher’s preferred term in the 1980s, but considered too negative to be electorally popular in the 1980s United Kingdom). These are the loss of public law framework and management, the implications for housing, the consequences for open and communal spaces and – perhaps the most important of all – the loss of a discourse of public property, where citizens can question land use and exclusion.
Taking the legal framework first, it is evident that publicly owned land (to keep things simple, it’s best to think of this as land owned by national and local governments, rather than becoming embroiled in the intricacies of the Crown Estate and Royal Parks) is subject to public law. While in land law terms there is no difference between privately and publicly owned land – the rules on freeholds, leaseholds, mortgages, easements and registrations apply regardless – the requirements of public law apply. Public landowners must not act ultra vires, they must observe the public sector equality duty as well as “best value” requirements, and are public authorities for the purposes of human rights (under section 6 of the Human Rights Act 1998). As was held in Fewings, where Somerset County Council wanted to forbid stag hunting on its land in the Quantock Hills, there are limits to how a Council can act. There the Court of Appeal overturned the council’s landowning decision, upholding Laws J. finding that the Council “enjoys no such thing as an unfettered discretion”. Prohibiting hunting was a step too far (although bylaws to that effect would have been fine).
As well as being subject to public law, publicly owned land is subject to a wealth of government guidance including as part of the increasingly centralised Government Estate and as assets for the purposes of HM Treasury’s Managing Public Money. This guidance exhorts public sector organisations “to take stock of their assets from time to time and consider afresh whether they are being used efficiently and deliver value for public funds. If there is irreducible spare capacity there may be scope to use part of it for other government activities, or to exploit it commercially for non-statutory business.” Efficiency is key.
The second consequence of privatisation affects housing. It is thought that nearly two million homes have been sold under the right to buy, the largest privatisation of all. While the tenure shift from renting to owner occupation can be life-changing, recent estimates suggest that approximately 40% of right to buy properties are now in the private rental sector, with 40-50% privately rented out in London, and 70.9% in in Milton Keynes (“the buy to let capital of Britain”). For this 40%, the differences between socially and privately rented homes are generally threefold: (1) higher rents (particularly in London and other popular rental markets); (2) less security of tenure and (3) poorer quality of accommodation. Taking the estimate at face value, this means that 800,000 homes that used to have lower rents, more security and were more likely to be of habitable quality, are now in the private sector, bringing profit to individual landlords, with tenants paying more for less.
This change in privatising housing is exacerbated by the fact that of the new land released for up to 160,000 homes by 2020, where privatisation and sale is routinely justified as addressing housing shortages, only a small proportion will be socially rented. Almost all central land deals have been concluded with private developers with affordability considered under planning rules rather than using central government ownership to transfer land directly to affordable housing providers or community land trusts. While many local authorities are trying to use their disposals to develop more affordably, central government departments have preferred private contractors who make their own development choices.
The third consequence of privatisation is the loss of particular spaces that are publicly owned. Libraries, allotments and playing fields, whilst not always public, are generally so and have born the brunt of austerity cuts and “repurposing”. While the numbers on library closures are disputed (staggeringly, the Department of Culture, Media and Sport keeps no central records on the basis that these are local decisions), the Chartered Institute of Public Finance and Accountancy estimates that 127 libraries closed in 2018 alone. When libraries are closed, parks are privatised – either for years or weeks – or playing fields are sold for housing, land that was once accessible by many becomes inaccessible, reducing yet again the spaces in which it is possible to be in public at all.
The fourth consequence of privatisation of land is discursive. For while in land law terms the differences between public and private land ownership are limited, public landowners can be called on to justify their decisions to exclude or limit use in a way private – particularly corporate – landowners are not. The decision by Haringey Council to licence Finsbury Park for the Wireless Festival, for example, has been widely challenged by residents concerned about noise, exclusion and damage. While the legal arguments that the festival should not have gone ahead in 2016 failed, the discursive arguments continue to resonate. Haringey are required to justify how much they have charged and to what use the profit will be put (it is to be reinvested in Finsbury Park). These are questions that would simply not be asked of a private landowner.
Privatisation is widespread, happening at an extraordinary scale whether by sales of freeholds, leases or licences. If leases for retail regeneration are for 250 years, the silver is gone for a really long time. When freeholds are sold, the family silver is gone for good. Network Rail, a public sector company, recently sold the spaces beneath the railway arches for £1.46 billion to Telereal Trillium and Blackstone Property Partners, who have created t, the single largest small business landlord in England and Wales. It is unlikely that these spaces will ever come back under public control (or scrutiny). Profit will not only be not justifiable but expected: corporate owners are accountable to their shareholders.
Land privatisation rests on profoundly ideological practices and it is brilliant that writers such as Christophers and Shrubsole are bringing this to light. The metaphorically small state produces a physically small state. Long may land ownership – and land law – continue to be front page news.
In October 2017, we were proud and honoured to mark the launch of the Centre for Health, Law, and Society (CHLS) in the University of Bristol Law School. The Centre is founded on ambitious aims to push the boundaries of scholarship in health law: expand its methods and approaches; broaden its practical reach and points of focus; enhance its place in shaping education; and increase its engagement with, relevance to, and impacts on people, organisations, regulators, and policy-makers across society.
Our launch event allowed a showcase of the breadth of scholarly interest and inquiry within CHLS, as well as an opportunity to hear presentations from leading figures in health, law, and associated disciplines. We start from a basic premise that the value and significance of health requires understandings from ranging disciplinary perspectives, looking across social sectors and actors. We are interested in the roles served by law to protect and promote rights, achieve greater social justice, and to ensure that health and other fundamental values are secured fairly for all.
Since the time of our launch, CHLS has gone from strength to strength. Our community of students, academics and collaborators continues to grow. And we are delighted in March 2019 to publish a Special Issue of the Northern Ireland Legal Quarterly (NILQ), which shows well the depth, range and reach of our ambitions. The Special Issue comprises contributions from 11 of CHLS’ members, as well as from colleagues from other universities. They represent legal scholarship that engages with ethical considerations and social justice, history, human rights, philosophy, politics and social sciences. They approach questions spanning from very individualised rights, to population- and systems-level analyses.
Across the past decades, much scholarship in health and law has limited its focus to matters within health care practice. As indicated by the Special Issue, we recognise the importance of law to good, ethical health care. However, it is problematic if a focus on health care exhausts our inquiry, and leads scholars to miss wider impacts on health: to ignore historical context; to sideline neglected areas such as mental and public health; and to fail to account for the perspectives of ranging actors and persons affected by law and policy both within and beyond the healthcare system. As scientific understandings evolve, and the boundaries between health and social care and welfare shift, it is crucial to identify and approach these matters with critical understandings of the strengths and limits of law and governance, and the complementarity of cross-disciplinary and cross-sector approaches.
The NILQ Special Issue captures the essence of this crucial agenda for the next generation of health law scholarship. We hope that readers will enjoy each of the papers taken individually. But crucially, we also hope that what they represent as a collection is well understood, and helps motivate and contribute to new and exciting research and teaching agendas, and wider- and deeper-reaching collaborations and engagement with the many and multifarious persons, actors, and agencies whose lives, well-being, and practice are impacted by health law and policy.
*This blog originally appeared on the Northern Ireland Legal Quarterly Contributors Blog*
This blog is written after the European Council conclusions were agreed yesterday, on 21 March, on the assumption, which is widely shared, that the EU’s extension plan is accepted by the UK. It is in two parts. In the first, I explain the nature of the choices ahead. In the second, I seek to make a positive case for revoking the A50 notification.
The choices ahead
As has been the case for a while now, there are four possible outcomes to the Brexit process.
The UK leaves the EU under the Withdrawal Agreement
The UK leaves the EU with no deal
The UK leaves the EU under a different deal
The UK does not leave the EU
The first option is Theresa May’s preferred outcome: that we leave the EU under the terms set by the Withdrawal Agreement. Under the terms of the conclusions, the European Council agreed to an extension until 22 May ‘provided the withdrawal agreement is approved by the House of Commons next week’. The European Council reiterates that there can be no reopening of the Withdrawal Agreement, adding that ‘any unilateral comment, statement or other act should be compatible with the letter and the spirit of the Withdrawal Agreement’. This looks very much like the ‘technical extension’ Theresa May asked for in her letter of 20 March, with the 22 May date chosen so that the UK leaves the EU before the elections to the European Parliament occur, and with a clear indication that no sugar-coating of the backstop will be tolerated.
If, as seems more likely, the Withdrawal Agreement is rejected for a third time in the House of Commons next week, the European Council has agreed to an extension until 12 April ‘and expects the United Kingdom to indicate a way forward before this date for consideration in the European Council’. The effect of this is simply to defer the moment of decision – from 29 March to 12 April. If the UK accepts this proposal, it means that the UK will no longer be leaving the EU on 29 March; and as a result, the UK will need to make changes to domestic law to amend exit day. The UK will have a narrow window of opportunity to decide on a way forward. It could decide to leave the EU with no deal, which remains the default outcome, or it could decide to revoke the Article 50 notification. Alternatively, it could decide, before 12 April, to request a longer extension. We do not know how an extension request would fare. It seems clear that the EU will, as it has consistently said, assess the reasons for such an extension, and seek to determine whether they provide a credible path forward. It is almost certain that any extension agreed in April will involve provision for UK participation in the forthcoming elections to the European Parliament.
The case for revoking the Article 50 notification
The effect of the European Council conclusions is to give the UK an extra two weeks to decide how best to take Brexit forward. It is no more than a small window of opportunity. The pressure on MPs to find a path forward remains intense.
In what follows I continue to make the case, which I first made in December 2018, for revoking Article 50; not as a last resort, but as the best solution to the situation in which the UK now finds itself. The case for revoke has three strands. First, each of the alternatives is hugely problematic. Second, the objections to revoke, based on the fact that it represents a betrayal of the will of the people, are hollow. And third, the consequences of revoke are largely misunderstood.
The problems associated with the alternatives
The simplest choice would be for MPs to approve the Withdrawal Agreement, and, as the Prime Minister might put it, to ‘deliver Brexit’. The agreement, reached in November 2018, is the product of the 2-year Article 50 negotiations. It is – no more or less – a withdrawal agreement, settling the divorce bill, providing protection for EU citizens in the UK and UK citizens in the EU, and seeking to guarantee, via the controversial backstop, that there will be no hard border in Ireland. The terms of the future relationship are addressed in an aspirational political declaration, with negotiations on the terms of that relationship set to start as soon as the UK has formally left the EU. Clair Gammage and I, writing on this blog in November 2018, explain why the withdrawal agreement should satisfy neither leavers nor remainers. Since then, the Agreement has been rejected in the House of Commons in January 2019 by a historic margin of 230 votes. It was rejected again earlier this month, this time by 149 votes. All the signs are that, even if, as seems likely, Speaker Bercow is prepared to allow a third ‘meaningful vote’ next week, it will be rejected again. Were the agreement to be approved, the Withdrawal Agreement Bill would then have to pass through Parliament. The scene would then be set for negotiations with the EU relating to the future relationship, in which the hard questions concerning the nature of the UK’s relationship with the EU would finally have to be confronted.
If the Withdrawal Agreement is rejected, the default is no deal. The Government’s own forecasts suggest that no deal would be chaotic and that it would result in a 9% fall in the UK’s GDP. Various preparations for no deal have been made (see here), and billions of pounds have been spent, by the Government and business, but there is no sense that the UK is ready for such a disruptive outcome. Citizens and businesses are crying out for certainty; no deal provides just the opposite. In any event, votes on the various amendments which have been tabled to the Government’s motions in the last months, indicate that there is a large majority in the House of Commons against no deal. The onus on those seeking to avoid such an outcome is either to pass the Withdrawal Agreement, or to point towards an alternative way forward.
The European Council conclusions give Parliament two or three weeks to make a reasoned request for a longer extension which indicates a way forward which the EU will then assess. The main contenders are that this House of Commons calls for a different way forward (perhaps, following a series of ‘indicative votes’, a path based on the existing Withdrawal Agreement and a refashioned Political Declaration which commits the UK more strongly to a close alignment with the EU); that a General Election is called, to enable a differently constituted House of Commons to chart a different way forward; and that provision is made for a people’s vote, allowing a choice to be made by the people between ‘remain’ and a version of ‘leave’ (most likely the Withdrawal Agreement, perhaps with an amended political declaration; but also possibly allowing a choice to be made between remain and a menu of leave options, perhaps including no deal).
Many in Parliament feel that the Government’s stubborn approach has denied them the opportunity to make a case for alternative versions of Brexit. And it is possible, though by no means inevitable, that a different version of Brexit would command greater support than the current Withdrawal Agreement. The problem here is time. The UK has had the opportunity to explore what Brexit means since 2016. But, the debate about the pros and cons of proximity with the EU and alignment with its regulatory orbit has quite simply not occurred. Worse than that, the inevitable trade-offs have barely been recognised. Too many still think that Brexit is a straightforward exercise. The idea that MPs can easily alight on a path forward, and that any such plan forward will have popular support – so that the UK will be able to demonstrate to the EU before 12 April that the way forward is credible – appears unduly optimistic.
There are also calls for a people’s vote, for example, under the Kyle/Wilson amendment, explained here. It is a very different path forward to the one suggested above. While the first is a search for a better Brexit, Kyle/Wilson results in a choice between the Withdrawal Agreement and remain. It allows the people, with more information than was available in 2016, to choose between remain and a concrete version of leave; but it provides little or nothing to the many MPs (in both the Conservative and Labour parties) who are committed to Brexit but who oppose the Withdrawal Agreement. I fear that it is embraced far too easily by many ‘remainers’, who appear to overlook the difficulties involved in framing the leave option. As I argued in September 2018, the people’s vote is not the answer to the Brexit riddle. The greater the opposition (in particular from supporters of Brexit) to the Withdrawal Agreement, and the more there is a sense that a better Brexit can still be found, the weaker the legitimacy claim of the people’s vote becomes.
A betrayal of the will of the people
Once the Withdrawal Agreement and no deal are both rejected, and the obstacles facing calls for a new path forward (whether through the fashioning of a different Brexit deal or via the people’s vote) are acknowledged, attention turns towards the revocation of the Article 50 notification. I have long been surprised that it has barely featured in the discussions of the credible options. But gradually, as alternatives have foundered, it has begun to attract attention. Suddenly, this week, a petition calling for Article 50 to be revoked has attracted (at the time of writing) over 3 million signatures; a simply staggering number.
There is no doubt that revoke faces strong opposition. The strongest objections focus on the undeniable fact that revoke would breach the referendum mandate, and that it would amount to a clear, and unconscionable, disregard of the will of the people. The idea that the (advisory) referendum amounted to a mandate from the people to Parliament to ‘deliver Brexit’ may be legally absurd, but it has a certain moral force. The problem with the moral argument is that the will of the people does not provide any path forward. In 2016, 52% voted to leave, but had very different ideas about how to replace the UK’s existing relationship with the EU. As a cursory look at the debates over the last months amply demonstrates, the disagreements are profound. The Government argues that the Withdrawal Agreement represents the will of the people. The European Research Group argue that the Withdrawal Agreement represents a betrayal of the will of the people, and argue instead for no deal, or some version of ‘managed no deal’, such as the so-called Malthouse Compromise. From a very different political perspective, others argue for Norway plus (or Common Market 2.0), or for a permanent customs union and for membership of, or privileged access to, the single market. There is no doubt that there is a huge public demand for MPs to ‘get on with it’, but, if one probes a little, one quickly sees that the demand is for MPs to move, simultaneously, in a number of different directions. A majority of people in 2016 voted for an abstract leave over remain, but there is no concrete leave towards which Parliament was directed to chart a path.
Some seek to supplement arguments based on the 2016 referendum with arguments based on the result of the 2017 general election, in which both the Labour and Conservative Parties committed to deliver Brexit in their manifestos. Once again though, while they were committed to Brexit, they were not committed to the same version of Brexit. We are where we are today because they have been unable to make common ground, and agree a concrete path forward, which is able to attract majority support in the House of Commons.
All the while, there is growing evidence that the attempt to deliver Brexit is causing huge problems. The prevailing uncertainty has contributed towards business decisions to leave the UK. The very fabric of the constitution is being damaged – within Westminster, and as between Westminster and the devolved assemblies. And opinion polls suggest that there is now a small – but growing – majority of the people who are in favour of remaining in the EU.
The consequences of revoke
The Wightman case made it clear that the withdrawing state has a unilateral, sovereign, right to revoke the Article 50 notification (I first raised the issue here in the immediate aftermath of the referendum). In order to comply with EU law, revocation has to be ‘unconditional and unequivocal’ and in accordance with the UK’s constitutional requirements. Revocation brings the Brexit process to an end. The UK remains an EU member state, with rights and obligations intact. As an EU member state, it retains the right, with a fresh democratic mandate, to trigger Article 50 again.
There is no doubt that any decision to revoke – and this is what makes it difficult for many MPs to countenance – would be the result of a profound failure of the political class to make sense of, and to seek to implement, the 2016 referendum result. But, as indicated above, it does not amount to a betrayal of the will of the people. It is better seen as a failure, in trying political circumstances, to grapple effectively with the huge challenge of seeking to deliver Brexit, seeking to marry continuity with change and to reconcile a huge number of contradictory voices.
It is, of course, very difficult to predict how a decision by Parliament to instruct the Prime Minister to revoke will be received. Many on the remain side will celebrate the result as a huge ‘win’. But, for better or worse, revoke will not herald the end of the Brexit debate. It is difficult to imagine the Government surviving the failure of the third meaningful vote, and the (putative) subsequent decision by MPs to instruct the PM to revoke the Article 50 notification. So, a general election is very likely to follow. Those who want various versions of leave will put their case. It is not impossible that a fresh democratic mandate to leave will emerge.
The key point, is that revoke opens up a broad space in which the UK’s relationship with the EU can be reconsidered. Of course, that would also have to occur if the Withdrawal Agreement is passed, but in the guise of a debate on the future relationship, framed by the Withdrawal Agreement and the commitments made relating to the Irish border. It could also occur in a long extension, but only if a way forward is clearly signalled before 12 April, and only within the terms (to be agreed with the EU-27) of the second extension agreement.
The new 12 April deadline affords the UK only a small window of opportunity. It allows time for MPs to debate revocation, and to adopt the legislation which is almost certainly needed to enable revocation to occur (see here). Revoke is, it seems to me, an appropriate conclusion to a Brexit process which has been badly mismanaged, and which, on any sensible measure, has failed. It enables the UK, and politics within the UK, to reset. It provides the opportunity for the debate which we could and should have been having since 2016 to start to occur, and for the divisions in the UK can begin to heal. The challenges are immense. Revoke and reconsider provides the best path towards their resolution.
By Rose Slowe LLM, Honorary Research Fellow, University of Bristol Law School. Author on EU Law and Barrister at Foundry Chambers.
Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.
Article 50(1) of the Treaty on European Union (‘TEU’) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court, the highest judicial authority responsible for interpreting our unwritten constitution, confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The Miller litigation, while lacking in a critical respect, as discussed elsewhere, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate.
The 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), enacted in response to Miller, did not satisfy this constitutional requirement as it merely permitted the Government to give notice under Article 50(2). As set out in the so-dubbed Three Knights Opinion, the only way that the Notification Act could serve as the legislative basis for the UK’s withdrawal from the EU would be if it was ‘read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the EU, or by leaving the EU without an agreement.’ Especially now that the Commons has voted against both the deal negotiated and withdrawal without a deal, to infer such abdication of parliamentary responsibility from the Notification Act would fly in the face of the Supreme Court’s ruling in Miller, in which paramount constitutional importance was placed upon Parliamentary sovereignty and express statutory authorisation. Such an inference would, in effect, diminish the role of Parliament in the constitutional checks and balances of powers to nothing more than writing a blank check for withdrawal at a time when there was no indication what Brexit could, or would, look like.
Indeed, at the time Notification Act was passed, it was impossible for Parliament to expressly authorise Brexit as the terms, and concomitant change to domestic law and rights that would result, was a matter for negotiation with the European Council. It follows that further statutory authorisation was always required to give legal effect to the UK’s decision to leave the EU upon conclusion of Article 50 negotiations. As the Three Knights Opinion reasons,
‘Parliamentary sovereignty and the principle of legality require Parliament expressly to authorise withdrawal from the EU on the terms agreed with the EU, or to authorise withdrawal if no acceptable terms can be agreed.’
Support for this protestation can be inferred from even the dissenting judgment of Lord Carnwath in Miller :
‘whatever the shape of the ultimate agreement, or even in default of agreement, there is no suggestion … that the process can be completed without primary legislation in some form’ (emphasis added).
In summary, it was an Act of Parliament that brought the UK into the European Union thereby giving EU law domestic effect, and so only an Act of Parliament, rather than merely a meaningful vote, can undo this as a matter of constitutional law. Therefore, the UK can leave the EU only when Parliament has legislated to approve the terms of a withdrawal agreement or to authorise withdrawal without any agreement.
Although Article 50(3) specifies that ‘The treaties shall cease to apply to the State in question… two years after the notification referred in paragraph 2’ (emphasis added), with only an option for bilateral extension of the negotiation period provided, it would be at odds with the other provisions in this Treaty Article, and indeed the EU Treaties and other General Principles of Community Law as a whole, for this to be interpreted as a foregone conclusion. Indeed, the ECJ has ruled that notice under Article 50(2) is unilaterally revocable by the withdrawing Member State, thereby adding judicial authority to the following legal analysis.
First, pursuant to Article 50(1), a decision to withdraw must be in accordance with the Member State’s constitutional requirements. However, for the reasons set out above, these requirements cannot necessarily be satisfied at the time when notice is given. Article 50(1) and (2) must therefore be read concurrently as opposed to sequentially, meaning a Member State’s constitutionally compliant decision to leave the EU does not have to be effective before notice under Article 50(2) is given. This is supported by the language of Article 50(2), namely the use of ‘intention’ and the present tense ‘which decides’, rather than ‘has decided’.
Second, it would be incompatible with the EU Treaties for Article 50 to have the effect of ejecting a Member State against its will, or contrary to its own constitutional requirements. Article 50 is a mechanism for voluntary withdrawal, not expulsion, as it is inconsistent with the fundamental principles and aims of the EU for a Member State to be expelled. Even Article 7 TEU, the most severe sanctioning mechanism the EU has at its disposal, stops short of ejecting a Member State found to be in breach of the Union’s founding values. If withdrawal would be unconstitutional at the national level, it would be inconsistent with the Treaties’ integrationist rationale, their emphasis on shared democratic values and indeed ECJ jurisprudence – an important and longstanding principle of which is that of respect for, and deference to, national constitutional traditions – for Article 50 to be interpreted so as to have an effect that is incompatible with domestic constitutional law.
The question then arises as to the consequences if the constitutional requirement of Parliament’s express statutory approval is not satisfied upon conclusion of Article 50 process. If Parliament were unwilling to pass legislation authorising the negotiated agreement or withdrawal without any agreement in place, the constitutional requirements for Brexit would not have been met. The intention expressed in the Article 50(2) notification has to be read as subject to the fulfilment of subsequent constitutional requirements, and if those conditions remain unsatisfied at the end of the Article 50 negotiation period when the terms of withdrawal, or lack thereof, are known, the conditional notification given would have to be treated as having lapsed, if not unilaterally withdrawn, because the constitutional requirements necessary to give effect to it have not been met. Article 50(3) would not automatically expel the UK as no Member State can be forced to withdraw otherwise than pursuant to a voluntary decision taken in accordance with its own constitutional requirements.
In conclusion, if the UK is unable to leave the EU in a constitutionally compliant manner by 29 March 2019, as in by an Act of Parliament, then we cannot lawfully withdraw. If an extension of time is not agreed by the EU, or as and when that extension expires, the UK’s Article 50 notice will lapse as a matter of national and supranational law, if not unilaterally withdrawn. A no-deal Brexit in the absence of parliamentary approval is, therefore, not the legal default.