Archive for the 'Law' Category

Understanding the rise of populism and addressing its challenges

etzioni, amatai

Amitai Etzioni

Amitai Etzioni, author of Law and society in a populist age, examines the emergence of populism and suggests ways in which law-based approaches and political institutions can both understand and manage the challenges these movements present.

“Much attention has been paid, for good reason, to the rise of right-wing populism in many countries. Emerging notably in opposition to immigration, and Britain’s decision to leave the EU, this type of populism plays out as a direct political bond between a charismatic leader and the masses, which occurs outside established institutional channels.

Left-wing populism, on the other hand – seen in movements such as the rise of Syriza in Greece and Podemos in Spain – is often all too overlooked but must be taken into account.

To take an example from the US, when Bernie Sanders ran for nomination as its presidential candidate he was not a member of the Democratic Party and was about as critical of it as Trump was of the Republican Party. Both candidates were initially opposed by the establishment of the two parties they came to represent. Likewise, Macron won the French presidential election, against all candidates of established parties, and created his own party in the process.

Their success demonstrates that, although right-wing populism is not embraced by the majority of the public in most of the nations in which it is rising, if one adds those on the left who are deeply troubled by the existing political regime, the combined result is a large majority of citizens who are alienated and distrust major institutions of their countries. Unexpected alternatives become viable options.

“The populist response to loss of jobs and benefits, increased economic insecurity, and accelerating social and cultural changes is deeply troubling and must be corrected, but their disaffection is driven by valid concerns.”

These emerging majorities have strong reasons to be disaffected. To dismiss their concerns as merely reflecting ignorance, prejudice, or credulity is both empirically wrong, and unhelpful in dealing with the crisis they pose to the legal order of liberal democracy. The populist response to loss of jobs and benefits, increased economic insecurity, and accelerating social and cultural changes is deeply troubling and must be corrected, but their disaffection is driven by valid concerns. To go forward, we must look for paths toward the reintegration of these masses into a society based on the rule of law, even if some of the laws involved may have to be recast in the process.

Modernity is characterized by technological and economic developments that underpin the existing legal, ethical, and political institutions. As populist movements grow, these institutions lose their ability to ensure that these developments will be dedicated to pro-social rather than anti-social purposes.  Like Golem, or the Sorcerer’s Apprentice, society has lost control of these developments and is buffeted by them.  This institutional lag should be closed and society—drawing on its law-making, policy-setting institutions—can then guide the forces that have been unleashed, rather than be captured by them.

This is just one of the ways in which law-based, political institutions in many democratic societies are being challenged by populist movements, parties, and leaders. Changes such as this necessitate greater attention to the role society plays in forming and challenging laws—and to the role of the law in coping with these challenges. An agenda is needed for research and deliberations by those interested in these law-in-society considerations.

“In order for the public at-large to be served, rather than having large segments of the population feel left out and antagonized, we need a major reallocation of power as well as a new source of legitimacy.”

Part of this agenda is to examine how the challenges posed by specific sources of alienation must be addressed. These include the privatization of force, the capture of the public domain by concentrations of private power, and ways in which obsolescent legitimacy can be replaced by newly-formed legitimacy.  In order for the public at-large to be served, rather than having large segments of the population feel left out and antagonized, we need a major reallocation of power as well as a new source of legitimacy. Both of these developments require the kind of major societal change historically brought about only by social movements.

An agenda must acknowledge the tensions between those who seek ever more governmental powers to bolster national security and defense (as well as environmental protection and climate control), and those who believe that such concentrations of power undermine their rights.  The very concept of the common good is contested by libertarians and introduces a liberal communitarian conception of a balance between individual rights and social responsibilities.

Finally, relations are needed between the national communities and the attempts to build more encompassing, so-called supranational (or regional) communities. The most advanced of these is the European Union (EU). The fact that Britain chose to leave the EU is often cited as a key example of the rise and victory of populism. One can also see it as an example of multilateral overreach; of concentrating power in Brussels and violating national sovereignty—before most people transferred their loyalty to the nascent European community.

“This acknowledgement that law and society are deeply intertwined will help to address the challenges posed by both right and left wing populism in these troubled times.”

In one major arena after another, specific sources of alienation require deliberations on how the challenges they pose should be faced. According to Lawrence Friedman, one of the leading thinkers in the law and society field, we must look at “ways in which law is socially and historically constructed, how law both reflects and impacts culture, and how inequalities are reinforced through differential access to, and competence with, legal procedures and institutions.” This acknowledgement that law and society are deeply intertwined will help to address the challenges posed by both right and left wing populism in these troubled times.

Law and society in a populist age FCLaw and society in a populist age by Amitai Etzioni is available with 20% discount on the Policy Press website. Order here for £15.99.

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The views and opinions expressed on this blog site are solely those of the original blog post authors and other contributors. These views and opinions do not necessarily represent those of the Policy Press and/or any/all contributors to this site.

Repealing the 8th: how new legislation on abortion should be designed

Fiona de Londras

Fiona de Londras

Mairead Enright

Mairead Enright

Fiona de Londras and Mairead Enright – authors of ‘Repealing the 8th: Reforming Irish abortion law‘ – respond to the announcement of the Irish Cabinet of its intention to hold a referendum to repeal Article 40.3.3 in May 2018. The book, now publishing on Thursday this week, looks beyond the referendum to what might come next, presenting detailed proposals for new legislation.

Chapter 4 from the book – Accessing abortion care: principles for legislative design – is now available to download free on our website. 

In 1983 the Irish Constitution was amended by the insertion of Article 40.3.3, now known as ‘the 8th Amendment’. This provides that “the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

At first glance, the 8th Amendment may seem innocuous or merely aspirational. However, over time, this provision has led to a near-absolute prohibition on abortion in Irish law and serious infringement of pregnant people’s rights. Under the current law, abortion is only lawfully available in Ireland when a woman will almost certainly die without it, and even then multiple doctors usually have to agree that this is the case.

“More than three decades of activism have come together in a large, vocal, visible and highly effective campaign for political and legal reform.”

Now, though, there are signs of change. More than three decades of activism have come together in a large, vocal, visible and highly effective campaign for political and legal reform; for the removal of the 8th Amendment and introduction of a law that will enable women to exercise agency in pregnancy and ensure that, for those who want to avail of it, abortion care is available at home in Ireland.

On Monday, the Irish Cabinet announced its intention to hold a referendum to repeal Article 40.3.3 in May 2018. The People will be asked to delete this Article and to insert a provision that expressly says that provision may be made by law for the termination of pregnancy. The Taoiseach said that the referendum will present the People with a choice to enable the Irish parliament to legislate for abortion care at home, or to continue to export abortion to other jurisdictions and to put the lives of women in Ireland at risk.

The Cabinet will publish indicative legislation for a GP-led abortion service ‘on request’ up to 12 weeks, and more limited access to abortion in later pregnancy.

Hamill Aoife - 205kTravelled - Signs - London Irish Arc 2

After the referendum

In the book we look beyond the referendum, to what might come next once the 8th Amendment no longer absolves the Oireachtas of the responsibility to make law to provide for the needs of women in Ireland. We include detailed proposals for how new legislation on abortion might be designed, including draft legislation that gives effect to the proposals that appear to have received Cabinet support this week in a way that respects the rights of pregnant people in Ireland.

“…the rights of pregnant people can be developed in ways that truly respect and protect bodily integrity, privacy, and the right to be free from inhuman and degrading treatment.”

In doing this, we argue that repeal of the 8th Amendment would create opportunities for the progressive interpretation of the Constitution, so that the rights of pregnant people—for so long narrowed down to a bare right to life said to be equal in stature to that of an unborn foetus—can be developed in ways that truly respect and protect bodily integrity, privacy, and the right to be free from inhuman and degrading treatment. This, we argue, would compel the Irish state to provide for lawful abortion, but would allow it to pursue the socially valuable objective of preserving foetal life provided in doing so it respects the constitutional rights of pregnant people.

This can be done by introducing law that makes abortion available without restriction as to reason up to at least the twelfth week. After that such a law might make lawful abortion available on broadly drawn health grounds so that pregnant people can truly determine the course of their own reproductive lives, and so that victims of sexual violence or those who have received unexpected foetal diagnoses will be able to be supported through a decision to an end a pregnancy, rather than forced through a punitive ‘qualification’ processes. This is what we are calling for now that the Referendum has been announced.

Like the Citizens’ Assembly and Joint Oireachtas Committee on the 8th Amendment, we draw distinctions between the availability of abortion after 12 weeks and after 24 weeks, with later abortion (after 12 weeks) being truly exceptional in law, just as it is in life. Illustrating the feasibility of such an approach, we include in the book draft legislation that gives effect to this approach. This makes our book essential reading for anyone involved in the campaign.

Our objective in writing this book was threefold. First, we wanted to make the constitutional arguments about the 8th Amendment clear and accessible and, in so doing, to show that from a legal perspective there is nothing unusually difficult about legislating for abortion and no reason why, uniquely among medical procedures, it should be regulated within the text of the Constitution. Second, we wanted to show how the Constitution itself could develop after repeal to reinvigorate the personal rights of pregnant people and to strike a balance between protecting these legal rights and pursuing the social objective of preserving foetal life through voluntary, consensual, and well-supported pregnancy. Finally, we wanted to show that, by drawing on experience in other countries and on international human rights law, and by committing to ensuring that pregnant people have sufficient certainty and support to make decisions about their own reproductive lives, a workable, reasonable, and rights-based law on access to abortion can be imagined and designed for Ireland.

Now, with the announcement of the Referendum on the 36th Amendment to the Constitution, we are a step closer to achieving some of these goals, but there is still much work to do. Given this week’s developments, Policy Press has brought forward the publication of the book to 1 February: please circulate information about it to anyone who is involved in the debates around the referendum.

 

Repealing the 8th: Reforming Irish abortion law‘ by Fiona de Londras and Mairead Enright  is publishing on 1 February 2018 and is available with 20% discount on the Policy Press website. Pre-order here for just £10.39.

It will be available Open Access under CC-BY licence.

Find out more about impact, influence and engagement at Policy Press here.

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The views and opinions expressed on this blog site are solely those of the original blog post authors and other contributors. These views and opinions do not necessarily represent those of the Policy Press and/or any/all contributors to this site.

The importance of the advice sector in the context of legal aid cuts

Originally published by PolicyBristol on the 19th June 2017.

Dr. Sarah Moore

The PolicyBristol blog has the pleasure of welcoming this guest post by Dr Sarah Moore, who was one of the participants in the recent book launch of Advising in Austerity. Reflections on challenging times for advice agencies (Policy Press, 2017). Dr Moore is also the co-author of Legal aid in crisis. Assessing the impact of reform (Policy Press, 2017) and offers here her insightful views on the need to boost the activities and funding of the legal advice sector.

Anyone familiar with legal aid reform will know that the Legal Aid and Sentencing of Offenders Act 2012 (LASPO) has dramatically altered the meaning and nature of legal aid. It has meant, amongst other things, a significant reduction in funding, largely achieved by taking a large number of areas of civil law out of scope, including private family law cases, and almost all cases involving social welfare, housing, medical negligence, immigration, debt, and employment.

The most strenuous critics of LASPO have pointed out that the recent funding cuts restrict people’s access to justice. In answering to these problems, LASPO incorporated a set of exceptions. Those who could provide evidence that they had been victims of domestic violence, for example, were to be given access to legal aid to pursue family law cases. And an Exceptional Case Funding caveat was incorporated in the Act for those who could successfully make a case that their human rights would be breached without publicly-funded legal assistance. Both have been woefully inadequate.

Research led by Rights of Women indicates that, even after the government relaxed the rules on domestic violence evidence and legal aid eligibility, a significant proportion of female victims (38% in their 2014 survey) did not have the mandatory evidence to receive publically-funded support. And the Exceptional Case Funding (ECF) scheme has been a disaster by anyone’s standards. In the first year post-LASPO, the Legal Aid Agency received only 1,520 applications for ECF. According to the Public Accounts Committee, only 69 were granted funding. That is far, far fewer than the Ministry of Justice and Legal Aid Agency had predicted in the post-LASPO period. Applications have picked up in the last year, as has the acceptance rate, but the fact remains that this safety net is sorely under-used.

Assessing the impact of LASPO

In assessing the impact of LASPO, academics and policy-makers have tended to focus on the impact of reform on the courtroom and litigation. There is certainly much to talk about here. Funding for civil representation and litigation now stands at about two-thirds of its pre-LASPO level, and this has led, amongst other things, to a steep rise in people representing themselves in the courtroom, so-called litigants in person.

All this has been well-documented, not least of all by Trinder et al’s (2014) excellent review of the difficulties faced by litigants in person in family law courts. What has received less attention is the steep decrease in funding for legal advice, with government funding for this form of support now at around one third of its pre-LASPO level. That is a staggeringly sharp decline in a four year period, one that even took the Legal Aid Agency and Ministry of Justice by surprise. This cut to funding has led to a radical change in the landscape of legal advice by prompting the closure of Law Centres, solicitors’ firms where legal aid was previously bread-and-butter work, and, of course, organisations in the advice sector.

The role of the advice sector post-LASPO

What does all this mean for the advice sector, and how might we start to think about the distinctive value of these organisations in a post-LASPO world? For one thing, the steep decline in state funding for legal advice has had the dual-effect of decreasing advice agencies’ budgets and increasing the unmet need for sources of support. And, as mentioned earlier, legal advice has been particularly hit by the cuts, making need for this support especially acute. It is therefore no surprise that, post-LASPO, the advice sector has played a crucial role in plugging the gap in legal support, even whilst it has undergone its own funding struggles.

The value of the advice sector post-LASPO also lies in its role in signposting people to exceptional case funding and, where capacity allows, supporting people in making applications. If LASPO’s exceptions and special provisions are to work, there needs to be support for people to make an application — people, it bears repeating, who are particularly vulnerable and ill-equipped for legal dispute. This lack of support is the principle reason for the failure of the Exceptional Case Funding caveat, and, as a set of organisations that tend already to have contact with the most vulnerable members of our society, the advice sector is potentially key to improving the take-up of this funding and thereby providing access to justice.

Lastly, the advice sector has a valuable role to play in improving public knowledge about eligibility rules for legal aid. Year on year post-LASPO, there has been a drop in casework for civil legal aid work. That downward spiral is not due to a decline in need. It reflects, amongst other things, the public’s understandable confusion about eligibility, and the presumption that legal aid no longer exists — that, at least, is the explanation offered by the House of Commons Justice Committee. And, again, as the advice sector necessarily plays a key role here in informing the public about what is available.

Advice as access to justice

The advice sector can play a really important role, then, in mitigating the effect of LASPO and making real its promise to offer a safety net. It can only do that with proper funding and support, and that requires a major shift in public debate so that the role of advice in ensuring access to justice is recognised. Herein lies a major challenge for the advice sector. Advising people on legal matters (or matters that have a legal dimension) is crucial work; it is also poorly-understood (in academic and policy terms) and relatively neglected in mainstream media coverage of legal aid cuts. This is despite the fact that public need for advice is growing as we enter a seventh year of ‘austerity’.

As we restrict people’s access to state services and welfare, people’s legal needs become more multifaceted and interwoven with social and psychological problems, as the accounts in Advising in Austerity (Kirwan, 2017) so neatly illustrate. The young woman seeking advice on an illegal eviction may also be managing a cut to her benefits, her employment may have become more erratic, and the public services in her local area may have deteriorated. This is what austerity means ‘in the round’, and it is just such a holistic conception of need that the advice sector is well-able to attend to, with its distinctive ability to provide advice on legal matters and information about broader social services. And, of course, in doing this important work, advice agencies do more than simply fill an information gap; they help explain official rules and decisions, often to people who are especially prone to feeling like they’ve been left behind and let down by social authorities. This, too, is what access to justice looks like. Making this case is all the more important in a post-LASPO era.

This blog post was first published in the Bristol Law School blog.

Legal aid in crisis [FC]Legal aid in crisis by Sarah Moore and Alex Newbury is available with 20% discount on the Policy Press website. Order here for £10.39

Find out more about impact, influence and engagement at Policy Press here.

Policy Press newsletter subscribers receive a 35% discount – sign up here.

The views and opinions expressed on this blog site are solely those of the original blog post authors and other contributors. These views and opinions do not necessarily represent those of the Policy Press and/or any/all contributors to this site.

The perversity in planning

Adam Sheppard, co-author of The essential guide to planning law, discusses planning policy and, in particular, the Prior Approval system and how this affects the delivery of homes in our communities. 

Adam Sheppard

“Planning is attempting to achieve things. It is trying to make things better.

Planning policy, from the national to the local to the neighbourhood is geared around enabling and realising improvement and forward progress. The regulatory decision making construct then provides the system to support the realisation and manifestation of these aspiration. Why then, is planning today steeped in perversity which serves to undermine it?

There is a specific example here that illustrates this point. This involves the Prior Approval approach – in brief, if something needs oversight because of a potential impact a full planning application is required and approval (hopefully) comes via a Planning Permission from the Local Planning Authority, whereas more minor matters can proceed with the benefit of ‘Permitted Development Rights’ and no such approval is required.

Continue reading ‘The perversity in planning’

Advising in Austerity

Originally published on the Policy Bristol blog on 26 April 2017.

Ben Crawford

Professor Morag McDermont

Research led by Prof Morag McDermont of University of Bristol Law School has explored the ways in which advice organisations such as Citizens Advice (CA) have become key actors in legal arenas, particularly for citizens who face the most disadvantage in upholding their rights.

Findings from a four year study in partnership with Strathclyde University, highlight the importance of free-to-access advice in enabling people to tackle problems and engage with the legal and regulatory frameworks that govern their lives.

The advice sector, however, is under threat, as a new book Advising in Austerity: Reflections on challenging times for advice agencies (edited by Samuel Kirwan and published by Policy Press ) demonstrates. The book, co-written by the research team and advisers in the field, highlights both the possibilities and the challenges for an advice sector that largely relies on volunteers to provide a vital interface between citizens and the everyday problems of debt, health, employment and much more.

Continue reading ‘Advising in Austerity’

Article 50: where we are now

Janice Morphet, author of Beyond Brexit, looks at what the future holds for the U.K. after the triggering of Article 50 and the formal beginning of the Brexit process. 

Janice Morphet

As the UK government faces its two-year roller coaster ride of negotiation, following the Prime Minister’s triggering of Article 50, many pressure points have already been revealed while some remain as haunting unknowns.

The first challenge that has emerged is how ill prepared the UK government finds itself. While the letter triggering Article 50 and the subsequent White Paper on the Great Reform Bill are full of words addressing internal political party agendas, any pretence of maintaining a united view across the UK has been abandoned.

No legal basis for devolution

Although stating in the White Paper that everything would remain the same until dismantled and changed through Parliamentary procedure, this is completely undermined in the chapter on devolution which confirmed the re-centralisation of returned powers on agriculture, environment and some transport issues.

Subsidiarity is based on principles laid down in the Treaty on European Union and there are no guarantees that it will survive Brexit as a principle of the UK state. Following Brexit all devolution within the UK, including to cities in England, will transfer to the whim of each five-year Westminster Parliament and cannot be agreed in perpetuity.

Continue reading ‘Article 50: where we are now’


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