Local Public Entities in Distress: An English Perspective

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By Prof Yseult Marique, University of Essex (ELS, UK), FöV Speyer (DE), UC Louvain (BE) and Dr. Eugenio Vaccari, Royal Holloway, University of London (UK)

Introduction

This is arguably one of the most difficult times in history for local authorities around the world. Authorities in developed countries like the UK are no exception. Councils in the UK face issues that are common to all types of local entities, such as inflationary costs for the provision of essential services (particularly social care) and reduced transfers and tax collection abilities due to the current global economic recession. In addition, they face unique challenges. These include increasing costs to service the commercial debt they had been encouraged to take in previous years, a dwindling and aging population, and increased demands of essential services from a more vulnerable population.

Building on a study funded by INSOL International and recently published in the INSOL International Technical Library, we discuss the treatment of financially distressed English authorities. The purpose of this short Inside Story is to uncover the causes of municipal failures, assess the remedies available under the law and discuss whether regulatory changes are needed to improve the status quo.

Why Do Councils Fail?

The short answer is: for a lot of reasons, and quite frequently for more than one reason. However, the recent experience of financially distressed local entities suggests that at least three triggering factors are recurring.

The first one is malpractice, and it is exemplified by the case of Liverpool. In November 2022, Rt. Hon. Michael Gove, Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations, appointed a financial commissioner at Liverpool to oversee the council’s dire financial situation. This appointment follows a second critical commissioners’ report. These commissioners were appointed in 2021 after an emergency inspection found a “serious breakdown of governance” and multiple failures to provide best value to taxpayers in the city. The inspection was triggered by the arrest of the city mayor and other top civil officers (December 2020) as part of a police investigation into allegations of fraud, bribery, corruption and misconduct in public office. Unfortunately, it does not seem that the changes introduced since 2021 have resulted in a marked improvement of the financial situation of the council. In October 2021, shortly after appointment, the commissioners reported that Liverpool faced a £33m shortfall for the 2022-23 budget. By the time of the second report in June 2022, this figure had increased to £98.5m to 2025-26, thus justifying the urgent appointment of a financial commissioner.

The second “triggering factor” is poor governance. Poor governance and accountability are common elements in almost all the recent cases of distressed councils in the UK. However, they were probably the determining factors for some of the best-known municipal fallouts in recent times, such as Croydon and Nottingham.

The London Borough of Croydon – whose case was analysed in detail in a report from the Housing, Communities and Local Government Committee – issued a section 114 notice (more on this in the next section) in 2020-21 after it emerged the authority was unable to balance its budget, effectively declaring itself bankrupt. A public interest report from the council’s external auditors (October 2020) highlighted that the council reported significant overspend in areas such as children’s and adult social care. However, the same report questioned the use of the flexibility granted by the government to deal with these issues. Finally, the report argued that the main factor for the council’s financial demise was its excessive corporate borrowing, which led the council to invest in under-performing companies and exposed future generations of taxpayers to significant financial risk. As a result of its financial difficulties, following a complete overhaul of its corporate structure, Croydon has received two capitalisation directions of £75m in 2020-21 and £50m in 2021-22 allowing the use of capital resources for revenue spending to cover budget deficits. Despite this, Croydon has received minded approval for a third direction in 2022-23 worth £25m.

The case of Nottingham is somehow similar to that of Croydon. The issues in the city became public knowledge after the council’s external auditors issued a public interest report (August 2020). The report raised concerns on how a wholly-owned subsidiary of the council, Robin Hood Energy, was being run, and the lack of financial information shared with the external auditors and the council itself. This report was followed by the government’s appointment of an improvement and assurance panel (November 2020) and finally by the council being forced to issue a section 114 notice in December 2021 after it emerged that the authority unlawfully used funding earmarked for its housing on revenue spending.

Finally, the third triggering factor is failure in commercial investments. Several councils are struggling financially to either refinance or service their commercial debt, especially at a time of rising interest rates. Some of them, such as Slough and Thurrock, failed in their efforts to avert external intervention and “bankruptcy”.

The case of Slough hit the news in July 2021, when its CFO issued a section 114 notice after some failed attempts to recapitalise the borough with funds from the government and financial investors. This procedure has led to the sale of most of its properties and assets at a loss – some of them bought just a few years before in an attempt to diversify and increase the revenue capacity generation of the authority.

This case shares some similarities with the demise of Thurrock. In May 2020, a major investigation from the Financial Times unveiled that Thurrock, a local authority in Essex, borrowed almost £1bn from 150 other UK local authorities and pension schemes to fund its renewable energy assets. However, the case did not result in governmental actions until recently, partly due to the Covid-19 pandemic. Only in September 2022, the government exercised its powers under section 15(11) of the Local Government Act 1999 to nominate Essex County Council as a commissioner for Thurrock, due to the scale of the financial and commercial risks potentially facing the authority and the lack of proper, timely and radical intervention from the council. This intervention was shortly after followed by an authorisation to borrow almost £840m from the Public Works Loan Board (PWLB) – a body attached to the Treasury that funds councils’ infrastructure spending – to refinance some of the loans taken from other UK local authorities.

Slough and Thurrock are not isolated cases. Local authorities such as Spelthorne in Surrey have borrowed heavily from the PWLB to offset the cuts in direct transfers from the central government. The issue is that if and when these investments fail – a circumstance that is rendered more likely by the lack of commercial and financial expertise in the councillors running these entities – local and national taxpayers are left to deal with the huge financial consequences of these failed entrepreneurial activities.

What Are the Remedies Available to Financially Distressed Councils?

The general approach followed by English law is to provide a series of mechanisms to local authorities to deal with financial difficulties before they become insolvent. These preventive restructuring measures include reducing costs, sharing services with other local authorities, and mergers between local authorities. It is also possible for councils to rely on loans from PWLB, bonds, and loans, as well as raising local taxes.[1] Should these measures fail, the framework for dealing with councils in financial distress is outlined by the Local Government Finance Act 1988 and the Local Government Act 1999. The key figures are the CFO of the local authority and the Secretary of State.

Uniquely across the public sector, CFOs have the power and legal responsibility to suspend a local authority’s spending for a period of time if they consider the council not to have a balanced budget or if there is an imminent prospect of default. In serious cases of financial distress, CFOs have a more general power to stop a local authority from entering into new transactions and performing some of the existing ones. This power is granted by section 114(3) of the Local Government Finance Act 1988 (“section 114 notice”).

CFOs will only issue such a notice if they have formed the view that future expenses are out of control, to the point that the local authority to which they are appointed is likely to end the financial year with a budget deficit and that it is impossible to broker a solution without issuing a section 114 notice.

It is quite likely that the procedure will result in the appointment of new independent commissioners for the local authority in debt. Newly-appointed independent commissioners will deal with a local authority’s financial distress without liquidating it as, under English law, local authorities cannot be liquidated. They can only be rescued. Local authorities cannot be subject to other debt resolution mechanisms (for example, state oversight, active supervision, or financial assistance from other authorities) apart from those outlined in this section.

What Else Can Be Done?

Section 114 notices are late warning signals. The consequences of issuing such notices are severe for the councils that issue them. All but essential expenses are frozen, and councils may be forced to merge with neighbouring ones; for instance, Northamptonshire councils were forced to merger in two unitary authorities in 2018.

The harshness of the consequences associated with section 114 notices have been designed to push councils to take timely decisions to avoid experiencing serious financial pressures. Yet, the changed policy and funding environment described in this paper coupled with a lack of expert auditors to supervise a council’s activities may lead to local authorities experiencing serious financial difficulties. If this happens, the consequences for councils, their workers, the services they provide and their existing procurement contracts are draconian.

This punitive approach towards failure has no equivalent in the English corporate or personal insolvency law framework, and it lacks proper theoretical justification. As mentioned in our paper submitted to INSOL International, reforms aimed at supporting local authorities experiencing financial difficulties, rather than punishing them for being indebted, are needed to realign the treatment of local public entities in distress with the rest of the English insolvency framework.

The UK’s legislative framework for dealing with local authorities in distress is inadequate. No day passes without news that other councils are likely to issue a section 114 notice – see, for instance, the recent warning about the Tory-run councils of Kent and Hampshire. These procedures have lasting impacts on local taxpayers and, especially, on vulnerable citizens. We believe that the time is ripe to discuss the implementation of a more mature, comprehensive framework aimed at addressing the causes of municipal failures. This framework should result in the implementation of an alert, modular system designed to take prudent fiscal measures at the first signs of crisis, without necessarily resulting in the displacement of the council’s existing management.


[1] For a clear outline of the preventive restructuring solutions, see Nick Gavin-Brown, “Restructuring Options for UK Local Authorities” (20 August 2018), available at: <https://www.pinsentmasons.com/out-law/analysis/restructuring-options-uk-local-authorities>.


This piece was first made available on the website of INSOL Europe and is reproduced on the ELR Blog with permission and thanks.

DCMS Report on Influencer Culture: Regulatory Gaps and Government Response to Calls for Reforms

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By Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 9 May 2022, the House of Commons Digital, Culture, Media and Sport Committee (which is responsible for scrutinising the work of the Department for Digital, Culture, Media and Sport and its associated public bodies, including the BBC) published its report on influencer culture, following the conclusion of its inquiry into influencers’ power on social media. Whilst acknowledging the benefits and the significant returns that influencer culture brings to the UK economy, the Committee emphasised that the industry needs to be given more serious consideration by the government. In the words of the DCMS Committee Chair Julian Knight MP, “as is so often the case where social media is involved, if you dig below the shiny surface of what you see on screen you will discover an altogether murkier world where both the influencers and their followers are at risk of exploitation and harm online”.

Devising a formal definition of the term ‘influencer’ is challenging, yet necessary in effectively enforcing rules and regulations. For the purposes of its report, the DCMS committee defined an influencer as “an individual content creator who builds trusting relationships with audiences and creates both commercial and non-commercial social media content across topics and genres” (para. no: 3). Influencer culture was taken to mean ‘the social phenomenon of individual internet users developing an online community over which they exert commercial and non-commercial influence’ (para. no: 1).

On the whole, the Committee found low rates of compliance with advertising regulation and concluded that employment protection has failed to keep up with the growth of online influencer culture, leaving those working in the industry unsupported and child influencers at risk of exploitation.

Four broad key issues pertaining to influencer culture emerged from the Committee’s inquiry, in particular.

Behind the camera

Despite the industry’s popularity, earning a living from social media influencing appears challenging. The report takes a look behind the scenes and goes beyond the superficial glamour and public perception, often involving paid-for holidays and free gifts. The report highlights that influencers face a range of challenges including hacking, impersonation, algorithmic unpredictability, mental health issues, online abuse, trolling and harassment. This appeared to be a bigger problem for women (compared to men) which is exacerbated by the “lack of developed support from the surrounding ecosystem of platforms, regulators, talent agencies and brands” (para. no: 15).

Transparency around pay standards and practice

Despite social media influencing being a rapidly expanding subsection of the UK’s creative industry, making a living in it remains difficult. Only few influencers appear to take the lion’s share of well-paid work, but many others struggle to make a living. Similar to other professions in the creative sector, many influencers classify as self-employed, which may mean that they experience uneven revenue streams and lack of employment protections (e.g., maternity or sick leave).

Moreover, the Committee points out the lack of payment transparency which has resulted in pay gaps between different demographic groups, affecting particularly influencers from ethic minority groups. Despite the fact that social media platforms understand the value that influencers bring to their business model, they do not always “appropriately and consistently” (para. no: 58) compensate influencers for the work that goes into producing content that attracts users.

The state of influencer compliance and gaps in advertising regulation

The scale of the sector and the volume of content generated across multiple platforms has outpaced the capabilities of UK advertising regulation. According to the UK’s Competition and Markets Authority, influencer compliance rates with UK advertising regulations remain “unacceptably low” (para. no: 74). Earlier in March 2021, the UK’s Advertising Standards Authority had reached similar conclusions in its research on influencer ad disclosure. The advertising watchdog’s report revealed a “disappointing overall rate of compliance” with its rules requiring ads on social media to be clearly signposted as such (see IRIS 2021-5/7 for more).

Despite platform-specific guidance on ad labelling and training for influencers, brands and agencies, the messaging around the rules on advertising transparency still lacks clarity and disclosure requirements are practiced with a high degree of variation. New entrants to the influencer marketplace, who may not receive adequate support, are still unaware of their obligations under the advertising rules.

Children as viewers and children as influencers

Influencer content on social media is becoming increasingly popular with children, but the close bond children develop with online figures leaves them at risk of exploitation. Evidence suggests that children are more vulnerable to native advertising as they find it challenging to distinguish and identify. Current advertising regulation does not appropriately consider their developing digital literacy and sufficiently address the need for enhanced advertising disclosure standards that meets children’s needs.

Furthermore, influencers may be financially incentivised to share “extreme content” (para. no: 104) that includes misinformation and disinformation which may affect children and other vulnerable groups susceptible to harms arising from this type of content. Influencer promotion of unattainable lifestyles and unrealistic beauty ideals was flagged as a particular issue, especially because its consistent message (i.e., ‘what you look like matters’) and the damaging pressure it generates are likely to contribute to mental health issues such as depression, anxiety, body dysmorphia and eating disorders. Currently, there is not enough regulation to protect children from this.

Concerns are expressed over the lack of protection for children participating in this new industry as successful influencers themselves (e.g., through gaming channels) and the impact this may have on their consent and privacy. Child influencers do not enjoy the same standard of protection around pay and conditions of work as traditional child performers in the entertainment industry. This is because child performance regulations do not currently apply to user-generated content.

Committee recommendations

In response to the issues identified earlier, the Committee makes a range of recommendations that call on the government to strengthen both employment law and advertising regulation. Specifically, the Committee recommends that the government: (a) conducts an industry review into the influencer ecosystem to address knowledge gaps; (b) develops a code of conduct for the industry as an example of best practice for deals between influencers and brands or talent agencies; (c) gives the ASA statutory powers to the enforce advertising standards under its Code of Non-broadcast Advertising and Direct & Promotional Marketing; (d) updates the same Code to enhance the disclosure requirements for ads targeted to audiences composed predominantly of children; and (e) addresses gaps in UK labour legislation that leave child influencers vulnerable to exploitation (including working conditions and protections for earnings).

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The government response: no indication of a change in mood

On 23 September 2022, the House of Commons Digital, Culture, Media and Sport (DCMS) Committee, which is responsible for scrutinising the work of the Department for Digital, Culture, Media and Sport and its associated public bodies (including the BBC), published the government response to its report Influencer Culture: Lights, camera, inaction? (previously reported on IRIS 2022-7/18).

The Committee had found low rates of compliance with advertising regulation and concluded that employment protection had failed to keep up with the growth of online influencer culture, leaving those working in the industry unsupported and child influencers at risk of exploitation. It made a range of recommendations that called on the government to strengthen both employment law and advertising regulation.

The Advertising Standards Authority (ASA), which monitors advertisements across the UK (including influencer marketing) for compliance with advertising rules, as well as the Competition and Markets Authority (CMA), which enforces competition and consumer laws and has powers to conduct investigations in suspected violations of these laws in the market, submitted separate responses to the Committee’s recommendations earlier in July 2022.

Recommendations concerning the ASA and the CMA

The government welcomed the Committee’s recommendations on strengthening the ASA’s regulatory tools (e.g., to be given statutory powers to enforce its rules) but pointed to the work currently undertaken as part of its Online Advertising Programme, which aims to improve transparency and accountability across the online advertising supply chain. The government also agreed that the CMA should have more powers to enforce consumer protection law and stated that it will bring forward its Digital Markets, Consumer and Competition Bill (announced in the 2022 Queen’s Speech) to provide for regulatory changes (including giving CMA the ability to decide for itself when consumer law has been broken and to impose monetary penalties when breaches are established).

Influencer careers and influencer harassment

The government agreed with the Committee that pursuing a career as an influencer often came with challenges, including a worrying rise in the amount of online abuse, harassment and intimidation directed towards them. Reference was made to Online Safety Bill (OSB), which will require technology companies to improve their users’ safety and take action against online abuse and threats on their services. The Bill places, in particular, a statutory duty on in-scope services to operate complaints procedures that provide for “appropriate” action to be taken by the provider in response to relevant complaints (clauses 18(2b) and 28(2b)). Services will be thus expected to consider the nuances of different types of harm and the appropriateness of their action in response to the complaints they receive. However, the progress of the Bill towards becoming law has been (at the time of writing) paused, with some of its most controversial elements being subject to government review.

Influencer code of conduct

In its response, the government expressed strong support for the Incorporated Society of British Advertisers’ (ISBA) Influencer Code of Conduct, noting that the ASA had already published guidance for influencers which existed alongside the Code of Conduct for the Influencer Marketing Trade Body. The government agreed with the Committee’s proposal to develop a code of conduct which would complement ISBA’s existing work by promoting good practice in the coordination between influencers, brands as well as talent agencies. It is unclear though how the different codes of conduct and guidelines will work together effectively.

Media literacy and children influencers

Children are often unable to differentiate undisclosed advertising from other types of content they access on social media. The Committee had found in its report that both children and parents were not being adequately supported in developing media literacy skills to make informed choices online. Although the government appreciated the risk of children being exploited as consumers of influencer content, it referred to its ongoing work on the Online Media Literacy Strategy, which is designed to equip users with the knowledge and skills required to become more discerning consumers of information. The OSB is also intended to strengthen Ofcom’s (the UK’s communication regulator) media literacy functions by including media literacy within the new transparency reporting and information-gathering powers.

The government also recognised the regulatory gap in relation to safeguarding children acting as “brand ambassadors” themselves. Under existing law (i.e., section 37 of the Children and Young Persons Act 1963), a licence must be obtained before a child can legally participate in certain types of performance and activities in Great Britain (including for example any live broadcast performance or any performance recorded to be used in a broadcast or a film intended for public exhibition). However, this protection does not extend to user-generated content, e.g., where young people or a family record themselves and share it on social media. The government pointed out that the Department for Education is open to exploring legislative options that may provide more effective protection to children but there was no express commitment to this.

Overall, the government welcomed the Committee’s comprehensive inquiry into influencer culture and recognised that it shed much-needed light on the influencer ecosystem and its impact on both traditional and digital media. However, the government’s response provides little indication of what concrete frontline actions will be taken.


This post replicates articles published earlier on the IRIS Merlin legal database. The original pieces can be viewed in IRIS 2022-7:1/18 and IRIS 2022-10:1/17.

A Right Not to Be Trafficked

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What is ‘modern slavery’ and who is responsible for it?

What is the relevance of human rights law, which primarily regulates state conduct, for practices predominantly committed by private actors?

Where can victims seek justice and redress when national authorities fail to protect them?

In her new book State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked, Dr. Marija Jovanovic analyses the role and responsibility of states for addressing ‘modern slavery’ – a diverse set of practices usually perpetrated by non-state actors – against the backdrop of international human rights law. Her work explores the dynamic between criminal law and human rights law and reveals the different ways these legal domains work to secure justice for victims.

In particular, the book considers the ‘absolute’ nature of the prohibition of modern slavery in human rights law, the range of practices covered by this umbrella term and their mutual relationships, the positive obligations of states established by international human rights tribunals owed to individuals subject to modern slavery, and the standards for assessing state responsibility in these situations.

By engaging with the concept of exploitation in human rights law, Dr. Jovanovic glues together diverse practices of modern slavery, including servitude, forced labour, and human trafficking, into a coherent concept.

State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked elucidates the theoretical foundations of this fundamental human right and explains why human trafficking has an independent place within it.

In addition to providing a comprehensive critique of the existing human rights jurisprudence, the book offers a roadmap for the future development of law on this subject, emphasising the limits of human rights law as a tool for addressing modern slavery.

Dr. Jovanovic’s book will be published by Oxford University Press in January 2023.

Financial Assistance Conditionality and Effective Judicial Protection: Chrysostomides

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By Anastasia Karatzia, Essex Law School

Dr. Anastasia Karatzia and Dr. Menelaos Markakis (Erasmus University Rotterdam) jointly published an article in the Common Market Law Review titled ‘Financial assistance conditionality and effective judicial protection: Chrysostomides‘. 

The article is a commentary on the ECJ’s judgment in the case of Council v K. Chrysostomides & Co. and Ors. It analyses the reasoning behind the ECJ’s findings regarding the legal nature of the Eurogroup, explores the implications of these findings for the accountability of the Eurogroup, and looks at the justiciability of the actions of the Council, Commission, and ECB in the context of the financial assistance programme for Cyprus and the EMU more generally speaking. 

The authors argue that the ECJ could have concluded that the Eurogroup is an EU institution within the meaning of Article 340(2) TFEU and that the theoretical possibility to hold the other EU institutions involved in financial assistance programmes accountable for their actions does not always suffice to guarantee the effective judicial protection of aggrieved individuals. This is the culmination of years of research on the topic of judicial protection in financial assistance given to EU Member States.

The article can be accessed in full here.

The Constitutional and Administrative Justice Initiative (CAJI)

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In October 2022, the Essex Law School launched the Constitutional and Administrative Justice Initiative (CAJI). This builds on and extends the work of the UK Administrative Justice Institute which was established in 2014 with funding from the Nuffield Foundation to kickstart the expansion of empirical research on administrative justice in the UK. Since 2018, the Institute has been funded by Essex Law School to progress the priorities set out in its Research Roadmap.

Establishing CAJI reflects the importance of connecting research and scholarship on administrative justice with Essex Law School’s broader public law scholarship on constitutional justice, judicial review, comparative public law, constitutional theory, social justice and human rights.

CAJI’s core team

Maurice Sunkin KC (Hon), Professor of Public Law and Socio-Legal Studies, is co-director of CAJI and a member of the team that originally established the UK Administrative Justice Institute.

Theodore Konstadinides, Professor of Law, co-director of CAJI.

Lee Marsons, CAJI’s research officer.

CAJI also has an advisory group comprising of colleagues from the Essex Law School as well as other departments of the University of Essex and external participants from academia and NGOs.

The importance of constitutional and administrative justice

Constitutional justice concerns matters critical to the relationship between the citizen and the state, including adherence to the principles of supremacy of law, accountability before the law and fairness in its application. At its core, it concerns state protection of our constitutional rights such as liberty, equal protection under the law and procedural due process. This requires decision-makers to respect their constitutional responsibilities: that the legislature legislates, and the executive governs according to established constitutional principles and that both branches are politically and legally accountable. Hence, constitutional justice is often discussed in the context of constitutionalism meaning that in serving the people the legislature and the executive are themselves governed by fundamental rules rooted in the consent of the people.

A commitment to the rule of law and avoidance of arbitrary exercise of power by the executive and those acting on its behalf are vital components of constitutional justice and good government. The decisions of independent courts demand respect and play a vital role in providing redress to those adversely affected by state action, constraining the unlawful exercise of state powers, and safeguarding fundamental constitutional values.  

The impact of the European Union and the Council of Europe and its advisory bodies such as the Venice Commission have become key in the globalisation of constitutional justice. This development entails the consolidation of constitutional principles common to their signatories and the maintenance of coherent standards of constitutional rights protection.  Recent threats to the independence of the judiciary in several European countries show that we cannot assume that appropriate constitutional standards are easily enforced.

At its core, administrative justice is about ensuring that those delivering public services act justly and make correct decisions and about what can be done when things go wrong. It encompasses matters of everyday importance that affect most of us at some point, such as education, health care housing, immigration, land use planning, social security and taxation.

We are interested in how public services are designed and delivered, how legislation is drafted, how people are consulted about laws and policies, how people can challenge decisions by public bodies, how redress bodies consider those challenges, and how learning from such challenges is used to improve delivery and decision-making in the first place. These matters are of vital importance to society.

Professor Theodore Konstadinides, CAJI co-director and Academic Lead for Public Law, stated:

“The CAJI is a research hub within the Essex Law School that builds on the legacy of the UK Administrative Justice Institute and pays tribute to all the amazing research that colleagues like Andrew Le Sueur and Maurice Sunkin have undertaken in public law and socio-legal studies.

CAJI’s research agenda is ambitious in that it draws on many issues pertaining to the exercise of public authority at all levels with the aim of improving the quality of decision making and access to justice in the UK and at international level.

While it is an active research hub of the Law School, CAJI embraces academics from multiple disciplines and  acts as a forum to discuss how we conduct research where the doctrinal meets the empirical.

CAJI is also interested in how academic research can contribute on the ground by advising public bodies and NGOs about pertinent issues of public life and commenting about complex topics in a way that is accessible to the wider public. Questions related to institutional independence, just government, states’ international obligations, modern living environments, provide exciting opportunities for interdisciplinary research and postgraduate research study. Our work dovetails neatly with the University’s research priorities in social deprivation, sustainability and health and wellbeing.

We therefore invite prospective visiting researchers and PhD students to contact us in order to discuss their ideas and potential opportunities for future collaboration.”

How to find us

CAJI is based in the Essex Law School at Wivenhoe Park.

As part of this change, UKAJI’s website – available here – will be migrated to a dedicated webpage on Essex Law School’s website. All original content will be protected.

UKAJI also has a Twitter account which will be maintained during this process.

Regulation and Governance of Mutual Funds: United Kingdom and United States of America Perspectives on Investor Protection

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By Dr Mohammed Alshaleel, Essex Law School

Dr Mohammed Alshaleel recently published Regulation and Governance of Mutual Funds: United Kingdom and United States of America Perspectives on Investor Protection. This book provides a detailed analysis of mutual fund regulations and governance in the UK from the investor protection perspective. It comprehensively describes mutual funds by their function, social utility, and legal attributes, examining the level of protection provided to retail investors under existing regulations.

Mutual funds are externally managed with fund ownership separated out from their management, which carries a potential conflict of interest between the self-interests of the fund management and each fund’s investors. The book provides an in-depth analysis of this agency problem in the mutual fund industry, comparing the competing governance models in the UK and the US and the supervision of management activities.

In the UK, the book investigates the main governance mechanisms, including disclosure, the effectiveness of voting rights, and the role of the Financial Conduct Authority in protecting investors. It also considers the role of prudential regulations in protecting mutual fund investors, with a particular focus on risk management and mutual fund liquidity crisis. The book further investigates the impact of the withdrawal of the UK from the European Union (Brexit) on the industry and what this means for the future of the undertakings for collective investment in transferable securities (UCITS) in the UK.

The concept of mutual funds is still not clearly understood, so this book will clearly define the different legal and practical aspects of mutual funds. It will be the first substantial study of mutual fund governance mechanisms under the existing mutual fund laws and regulations in the UK.

Further information on this book can be found here.

The Legalisation of Assisted Dying: The Experts’ View

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By Louise Millescamps, Essex Law School

La légalisation de la mort assistée, un sujet sociétal au cœur des débats

Ces podcasts correspondent à la deuxième partie d’un projet de recherche sur la légalisation de la mort assistée en France et en Angleterre. Après avoir publié un article décrivant les lois actuelles dans les deux pays et les raisons de chacun de refuser la légalisation de la mort assistée, j’ai eu l’opportunité d’interviewer deux expertes sur ce sujet et d’engager la discussion quant à l’état de la législation actuelle et ses possibles évolutions. Nous avons également abordé d’autres questions comme la responsabilité de l’équipe médicale dans le cadre de la mort assistée.

Aujourd’hui, ces discussions sont d’autant plus importantes qu’en France, le débat sur la législation de la mort assistée est d’actualité. Le 13 septembre 2022, Jean-Luc Godard, cinéaste franco-suisse, a délibérément mis fin à ses jours grâce au suicide assisté, une pratique légale en Suisse. Le même jour, le Comité Consultatif National d’Ethique a rendu un avis sur la fin de vie ouvrant la voie à une «aide active à mourir». Une convention citoyenne sur la fin de vie va également être prochainement organisée. Alors que les discussions sur la fin de vie prennent de plus en plus d’importance, il paraît crucial d’en apprendre davantage sur la législation en vigueur et ses possibles évolutions.

Le premier podcast est une interview de Sabine Michalowski, Professeure de Droit à l’Université d’Essex, co-directrice du projet: Essex Transitional Justice Network. Elle est aussi membre du Human Rights Centre et du Essex Autonomy Project.

Le deuxième podcast contient une discussion avec Aurore Catherine, maître de conférences en droit public à l’Université de Caen Normandie, membre de l’Institut Caennais de Recherche Juridique et présidente du groupe de Réflexion Ethique du Centre de Lutte contre le cancer François Baclesse.

Ces deux podcasts, bien qu’ils traitent des mêmes sujets, présentent deux points de vue différents.

Dans son interview, Madame Catherine commente la loi en vigueur en France. Elle rappelle que le but de cette loi est de soulager les souffrances. Selon elle, il faudrait d’abord s’assurer que cette loi est bien appliquée avant de se pencher sur la légalisation de la mort assistée:

«En 2015, une critique a été soulevée: notre législation était philosophiquement, éthiquement bien fondée, simplement on n’arrivait pas à l’appliquer parce qu’elle était insuffisamment connue des soignants, insuffisamment connue du grand public».

Concernant Professeure Michalowski, il lui semble important de se focaliser non pas sur l’application de la législation actuelle mais sur la nécessité de légaliser la mort assistée. Selon elle, il serait préférable d’adopter une nouvelle loi plutôt que de se reposer par exemple sur l’«état de nécessité», un moyen de défense utilisé lors de certains procès mais qui se révèle «totalement imprévisible». Pour Professeure Michalowski, il est important de laisser le choix aux individus et de leur permettre ainsi de décider de leur vie comme de leur mort. Elle affirme à cet égard que: «Pour certaines personnes, une meilleure fin de vie serait d’avoir accès à la mort assistée».  

Interview with Dr. Catherine
Interview with Prof. Michalowski

The Legalisation of Assisted Dying

These podcasts are the second part of a research project on the legalisation of assisted dying in England and France.

In the first interview, I had the honour of talking to Sabine Michalowski, Professor of Law at the University of Essex, co-director of the Essex Transitional Justice Network and a member of the Human Rights Centre and the Essex Autonomy Project. 

In the second interview, I had the opportunity to interview Aurore Catherine, Lecturer in Public Law at the University of Caen Normandie, member of the Institut Caennais de Recherche Juridique and President of the Ethical Debate Group at the François Baclesse cancer centre.

In both podcasts, we are going through different themes on the topic of assisted dying. Similar questions are asked to both interviewees in order to grasp the differences between both jurisdictions.

From the definition of dignity at end of life, to the powers of the courts and the physicians’ responsibilities, we discuss the challenges associated with the legalisation of assisted dying. 

Although dealing with the same topic, the two podcasts present two different points of view.

In her interview, Dr. Catherine focuses on the current legislation in France. She recalls that the purpose of the law is to relieve suffering. According to Dr. Catherine, it would first be necessary to apply this law properly before debating on legalising assisted dying:

“In 2015, a criticism was raised: our legislation was philosophically, ethically well-founded, however, we could not apply it because it was insufficiently known to caregivers, insufficiently known to the general public”.

For Prof. Michalowski, the importance of the debate lies in the legalisation of assisted dying. According to Prof. Michalowski, adopting a new law would be a better option than relying for instance on the defence of necessity, a means of defence used in some trials but which turns out to be “totally unpredictable”. She focuses on the idea that it is important to ​​leave everyone to choose and decide about their own life and death. In this regard, she says that “for some people, a better end of life would be to have access to assisted dying”.

Interview with Dr. Catherine
Interview with Prof. Michalowski

Police relational accountabilities: The paralysis of police accountability?

Image by James Eades

In his new article published in Policing: A Journal of Policy and Practice, Dr Simon Cooper of Essex Law School examines the new relational accountabilities of Chief Constables, Police, and Crime Commissioners [PCCs] and Crime Panels [PCPs] in England and Wales. 

Referring to a number of recent reports and reviews, the discussion initially focuses on the effectiveness of these relationships and, in particular, the inefficiency of PCPs. 

Dr Cooper’s article develops current understanding, showing that PCPs may cause a new unforeseen consequence. Namely, the exercise of accountability and the governance of policing may be unusually reactive to the ‘one-to-one’ accountability relationship between PCCs and Chief Constables.

Such recommendations are made to strengthen the exercise of accountability and the governance of policing. Specifically, the Home Secretary is encouraged to review the Policing Protocol Order (2011) and issue a Memorandum of Understanding to ensure ‘effective, constructive working relationships’ are not just a quixotic pursuit but a practical reality that safeguards the governance of policing.

Dr Cooper’s research is all the more important in light of Her Majesty’s Inspector of Constabulary and Fire & Rescue Services finding in 2022 that there is an ‘atmosphere of mistrust and fear’ between PCCs and Chief Constables and The Police Foundation reporting ‘a crisis of confidence’, recommending ‘root and branch reform.’

The article can be accessed in full here.

Who Owns Justice? When States Refuse to Provide Justice, Let the People Make Their Own Justice

By Professor Carla Ferstman, Essex Law School

Image credit: Aban Tribunal website

I have recently had the honour to be part of the panel of judges of the Aban Tribunal – a People’s Tribunal established by civil society to review evidence of atrocities allegedly perpetrated by the Islamic Republic of Iran as part of its crackdown on the mass protests that had engulfed Iran in November 2019, sparked by massive rises in fuel prices but fundamentally were about social and economic rights and governance in the country. Our judgment, in which we found that acts of extrajudicial killings, torture, sexual violence, arbitrary detentions, enforced disappearances and persecution amounted to crimes against humanity, was released on 1 November 2022.

This was my first foray into the world of People’s Tribunals, a concept which originated with the Russell Tribunal, named after Bertand Russell. That was a process he initiated together with Jean Paul Sartre, Simone de Beauvoir and other luminaries of the day to consider the American role in Vietnam. Since then, the People’s Tribunal concept has developed and evolved and many other tribunals have been established to consider a wide array of issues ranging from the coalition-led invasion into Iraq, the situation in Palestine, the situation in Kashmir, Japanese wartime practices related to sexual slavery, the treatment of refugees and migrants, the treatment of Uyghurs, climate change and the murder of journalists. And the list goes on.

People’s Tribunals tend to come into play when more traditional justice avenues are completely blocked or when the official narrative about what happened denies the space for other voices or perspectives. Either a regime has no interest in any kind of justice and will not be cajoled into a justice process. Or, there is a particular issue that is completely taboo in a country or which cannot be solved by bringing a case to court.

In the case of the Aban Tribunal, the Islamic Republic had authorised the violent crackdowns on protesters and in the aftermath of those events, had instituted a devastating campaign of intimidation against family members who had sought out information about how their loved ones had died or were calling out for justice. Authorities had also interrupted families’ burial rituals in order to deflect attention away from the many killings, preventing families from grieving their loved ones. Thus, there was no realistic prospect of domestic investigations or prosecutions of those responsible or any likelihood of an official acknowledgment of the wrongs done and the harms caused. Victims and witnesses, who faced significant risks of reprisals for their participation, testified, often by video link – with faces covered and voices distorted, from inside Iran. The opportunity to tell their stories to the world was one they could not pass up lightly.  

People’s Tribunals are about drawing attention to problems that are not being solved by traditional courts, governments or others. These tribunals are intended to bring public attention to issues not sufficiently in the public domain; to build solidarity with victims; to provide some kind of ritualised forum in which evidence is evaluated and the moral weight of a conclusion is given; to serve as a catalyst either for later formal justice processes or for changing public opinion or inspiring political debate.

In the case of the Aban Tribunal, the goal was to do all these things. And, to draw attention to the patterns of repression; impunity breeds recurrence and we are seeing this every day with the Iran Government’s brutal repression of the ongoing protests into the killing of Mahsa Amini. These tribunals can also serve as an end in and of themselves, by serving the goal of acknowledgement of wrongs and doing justice that otherwise would never had been done.

Who gets to decide what justice looks like?

What makes “justice” justice? This is perhaps a philosophical or sociological question, it can also be considered anthropologically – what do we turn to a justice system to do for us? And when do we see that it has the power to deliver?

Do we do a disservice to victims if justice is not sanctioned by a government; if the results of this “contrived” justice process cannot result in “real” sanctions?

In some cases, a People’s Tribunal might make it more difficult to have a formal justice process afterwards (but sometimes the opposite with be the case). But often “real justice” is symbolic – victims will take cases to human rights courts that they know will not get enforced; but often the reason why victims bring cases to court is for an official body to acknowledge that they were wronged and that they suffered. It is important that there is official recognition that what was done to them was wrong and that they – the victims, are not to blame.  

As such, it becomes a question of whether the People’s Tribunal is imbued through the rituals it cloaks itself with, with enough internal legitimacy that victims and communities see it as having the power to do justice in the form of acknowledgement.

In some cases, it will be important for the judges of People’s Tribunals to don robes, to use gavels, and to seem otherworldly, and to speak the language of the courtroom for the victims to believe that the justice ritual they are part of is “real” and “meaningful”. This was the case with the Aban Tribunal – it was our determined belief, based on our understanding of the situation and speaking with civil society that there was this overwhelming sense of impunity – the total and absolute absence of justice. Donning the rituals of the courtroom was therefore an important part of our process.

In other cases, it is the formal justice system that is alienating and has failed victims in the past; the People’s Tribunal will be embraced and seen as legitimate only if it gets stuck in with the community in a more visceral way.  

Can justice exist without a government legitimising it?

In most societies, justice is like a social contract – the justice process helps reinforce the rules by which the society lives by. Justice that is fair makes communities feel comfortable to abide by the rules. Everyone knows their place. In this sense, justice is something a  government uses to reinforce the rule of law within the society. When state actors commit crimes, subjecting them to the same scrutiny, to the same justice, reinforces the sense that everyone plays by the same rules. When the state exempts itself from the rules, this undermines the rule of law in society.

Before embarking on this People’s Tribunal journey, I was convinced that for justice to be meaningful it had to be done by the decision-makers. As someone who has worked a lot on the issue of reparations or remedies to victims, – reparations were always something the government or the direct perpetrators should provide – indeed, this was part of their social contract, their role in reinforcing the rule of law. When civil society groups or development agencies started getting involved in reparations, my sense was always that they were just muddying the waters; reparations means something specific; it is special – it is about the wrongdoers acknowledging the wrongs and harms that they caused. So similarly, a justice process needed to be set up by governments because of the role governments play, or should play, in society, in reinforcing the rule of law.

But with People’s Tribunals, I realised, the idea that victims and civil society create their own framework of justice when justice is not otherwise going to happen, recognises that a government does not have the power to deny justice – this itself is really powerful. When the government does nothing, the victims, the civil society, the international community say no – that is not alright; we deserve justice; if you won’t provide it, we will not allow you to block it for us; we will take matters into our own hands and create our own justice.

It recognises that justice as acknowledgement is a ritualised project, and it is not owned by governments.  

The result can be very creative; participatory; and if done well, a really positive experience for victims that they wouldn’t get in a traditional courtroom.

How to avoid the accusation of Kangaroo Justice?

There will always be arguments that Peoples’ Tribunals are one-sided; that they are just a politically motivated tirade against a government. For any People’s Tribunal to have a positive effect, it must guard against this. It is the judges of the People’s Tribunal who need to control the process. They must give space for nuance, hear all possible arguments even if not all sides are participating, recognise that there are defence rights even if there are no accused. This is difficult, and not always as obvious as it should be.

The truth is never simple, the organisers of tribunals are advocates, with advocacy positions – it is important for judges/deciders of fact to be independent of that, to be as neutral as possible.  

Another line of argument is that a Peoples’ Tribunal should not seek to resemble a court – the more they don the rituals of a court, but do not have the necessary checks and balances of a court, the more they veer towards kangaroo justice. However, one needs to consider the purpose of the People’s Tribunal – in some cases, it is set up precisely because the community has a real need for justice – and there is no accountability in the society – so becoming as “court-like” as possible is really important, for the victims and the ritual of the process.

For the Aban Tribunal, it was really important that we were a court – we wore robes, the witnesses were sworn in, the judges spoke in legalese and the judgment is a judicial ruling – but this obviously raises other challenges – we had to take special care about process, about fairness, about our own accountability.

Conclusions

People’s Tribunals play a really interesting part of the mix of justice processes. They are particularly important to adjudicate situations or issues which would not otherwise have benefited from adjudication. They also play an important role in expressing solidarity with victims and affected communities who often feel isolated in authoritative regimes.  

The idea that justice comes only in one shape, or size, is evolving. This evolution is necessary in light of the many instances of absolute impunity around the world. But also, it can be very empowering and freeing to develop conceptions of justice that are centred on the needs of victims and communities.

The Politics of European Legal Research: Behind the Method

Image credit: e-elgar.com

Dr Jessica Lawrence of Essex Law School and Professor Marija Bartl of Amsterdam School of Law have recently produced a jointly edited book publication with Edward Elgar titled The Politics of European Legal Research: Behind the Method. This book looks behind different methodologies to explore the institutional, disciplinary, and political conflicts that shape questions of ‘method’ or ‘approach’ in European legal scholarship. It offers a new perspective on the underlying politics of method and identifies four core dimensions of methodological struggle in legal research – the politics of questions, the politics of answers, the politics of legal audiences, and the politics of the concept of law.

In addition to her editorial role, Dr Lawrence contributed chapter 2 of the book titled ‘Governmentality as reflexive method: excavating the politics of legal research’. Here, she argues that researchers should be conscious of the impact that their ontological, epistemological, political, and normative commitments have on their work, and maintain an awareness of the fact that these assumptions are contingent, constructed, and politically significant. She argues that consciousness of these impacts is a tool researchers can use to better examine the forms of knowledge they (re)produce to determine what type of order, and what type of politics, they perpetuate.

Further information on this book can be found here.