Reviewing Judicial Review: The Constitutional Importance of the Independent Review of Administrative Law 2020

Photo credited to

Prof Theodore Konstadinides (Professor of Law, University of Essex), Lee Marsons (Postgraduate Research Student, University of Essex) and Prof Maurice Sunkin (Professor of Law, University of Essex)

Last year, the Government committed itself to establishing a Commission on the Constitution, Democracy and Rights, which would consider reform of the UK’s constitutional order, including judicial review and the Human Rights Act 1998. Instead, on 30 July 2020, the Government launched an ostensibly narrower Independent Review of Administrative Law (IRAL) to examine the need for reforms of judicial review in particular. This is to be conducted by an advisory panel of experts led by Lord Faulks QC. Any options for reform put forward by the Review will be considered by the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC MP and by the Chancellor of the Duchy of Lancaster, Michael Gove MP. Both the report of the Review and the Government’s response will be published by the end of 2020 or shortly thereafter.

The scope of the Review in context

The Review is expressly framed as an attempt to explore the balance ‘between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government’. In particular, the Review considers the:

(i) codification of the grounds of judicial review and the amenability to review of public decisions;

(ii) justiciability of certain executive decisions;

(iii) grounds and remedies available in justiciable claims and whether these should differ depending on the subject-matter of the case; and

(iv) any additional procedural reforms, such as time limits, costs, appeals, and standing.

The current Review is the latest in a series of exercises over the past decade directed at reforming judicial review. Recent consultations include:

While the current Review follows this reform trajectory, it is substantially different in its framing and objectives in several respects. In particular, this exercise is presented as being concerned with a range of broader issues than previous consultations, which largely focused on procedural and financial reforms. This is indicated by the Review’s function to provide an independent examination of ‘administrative law’, rather than ‘judicial review’ exclusively. This would be an ambitious project especially given the seemingly tight timeframe being set, not least for the initial consultation (some six weeks from start to end). However, the reality of the Review may belie its ambitious wording. In practice, it seems that the Review is considering ‘administrative law’ only in the narrowest of senses – that is, those aspects of administrative law that are associated with the grounds of judicial review.

In other words, the Review appears not to be concerned with the broader territory of administrative law or with the wider landscape of administrative justice. There is, for instance, no indication that it will examine statutory appeals, administrative reviews, the work of tribunals, or ombuds. The implication is not only that judicial review equates to administrative law, which many will recognise as being dubious, it is also that judicial review can be understood and reformed in isolation to those parts of the administrative justice system to which it is inevitably attached. This is an artificially narrow approach. After all, judicial review is a remedy of last resort and its use is intimately connected to the availability of other routes of redress, including those within public bodies themselves. This narrow approach to administrative law also runs the risk of producing reforms to one part of the wider system without adequate regard to other parts.

It is perhaps not surprising that, despite its title, the Review has not been established to consider wider issues of administrative law redress and justice. After all, these wider issues of redress are not the political priorities underlying the Review. The real priorities are likely to be those originally flagged by the government when it promised to establish a Commission on the Constitution, Democracy and Rights.  The real issues of concern are constitutional in character and this is why the Review differs substantially from previous consultations. The earlier concerns were to make procedural changes that would address the perceived growth in the use of judicial review that was thought to be largely driven by claimants seeking to abuse the system and to prevent judicial review impeding good government. The current call for reform builds on these concerns but now the priority has shifted away from procedural reform to more substantive constitutional reform. In particular, the Review is being asked to address fundamental issues concerning the appropriate constitutional place of judicial review, including: whether the courts are interfering inappropriately with executive decisions and if so whether certain types of executive decisions should be protected, whether appropriate tests of justiciability are being adopted, and most fundamentally of all whether judicial review should be placed on a statutory footing and the grounds codified.

Important omissions from the call for evidence

The omission of any reference to human rights is striking. This probably reflects an intention to draw a clear line between the focus of this IRAL’s work and future consideration of human rights issues and the Human Rights Act 1998. Indeed, one is left wondering whether the Government’s and Lord Faulks’s views about repealing the Human Rights Act 1998 have a bearing on this omission. But this too suggests that the IRAL is being asked to take an artificial and narrow approach to judicial review. It is difficult to see, for example, how the grounds of judicial review and issues such as justiciability can be considered without addressing human rights. After all, sections 6 and 7 of the Human Rights Act 1998 create an express statutory obligation on public bodies not to violate the human rights in Schedule 1 and provide victims of a violation the right to pursue legal proceedings against a public body. Moreover, the approach of the courts to such matters as rationality, procedural fairness, and proportionality is fundamentally affected by issues concerning human rights. Human rights are now fundamentally entwined into the life of judicial review and while surgical procedures may be used to try to separate them out, there is a real risk that the patient will not survive: that no sustainable reforms will be produced and that those reforms will ignore major issues at their core.

Reassurance about the place of fundamental rights in judicial review would have been particularly welcome since the EU Charter of Fundamental Rights (which sets out individual rights and freedoms emanating from CJEU case law, the ECHR and common domestic constitutional traditions) will cease to have effect in the UK at the end of the Brexit implementation period. This development will affect constitutional checks that are currently capable of correcting outdated legislation. For instance, after 31 December 2020, claimants in cases like Benkharbouche(where the Supreme Court held that the State Immunity Act 1978 was unlawful for breaching Article 6 ECHR and Article 47 of the EU Charter of Fundamental Rights) will not be able to get a remedy beyond a declaration that their rights have been breached under s.4 of the Human Rights Act 1998.

More stark is the omission of any reference to the most fundamental premise of British constitutionalism; namely, parliamentary sovereignty.  Indeed, there is no reference to Parliament in either the terms of reference or the call for evidence. Instead, the IRAL’s work is expressly framed as an exercise to determine the appropriate balance between executive action and the individual’s ability to challenge the executive, whitewashing Parliament from view. This neglects that the executive is the junior constitutional partner (as Lady Hale put it at [90] in Miller I) and that Parliament is sovereign. Government is not entitled to ignore the law as enacted by Parliament, even if this would substantially improve its efficiency and accomplish its objectives. This is basic Entick v Carrington (1765). The Review locates judicial review within a struggle between executive and judges when that is not necessarily its primary and exclusive place within the constitution – arguably, its basic and core role is to ensure that government acts within the powers granted by Parliament (Padfield v Minister of Agriculture, Fisheries and Food). This essential point has not even a footnote in the IRAL’s extant documents.

Also concerning is the lack of any express or implied recognition of the potentially major constitutional consequences of codifying the grounds of judicial review, particularly for the accountability of the executive to the common law. For many commentators, the experience of the Australian codification of the grounds of review in the Administrative Decisions (Judicial Review) Act 1977 has been the ossification and stunting of judicial developments in the grounds of review e.g. Mark Aronson, ‘Is the ADJR Act hampering the development of Australian administrative law?’ (2004) 15 Public Law Review 202 and T.H. Jones, ‘Judicial Review and Codification’ (2000) 20 Legal Studies 517. A similar eventuality could arise with these reforms – an executive with a large majority in the House of Commons inveigles Parliament to codify judicial review so as to prevent or hamper the courts from developing and increasing its accountability at common law.

Evidence and methodology

A final comment concerns the method by which the IRAL seeks to obtain evidence. The Review is rightly concerned to base its deliberations on the available evidence, including on such matters as the trends in judicial review over the last thirty to forty years. However, the challenges in identifying, marshalling and understanding that evidence in the short time available cannot be overestimated. It is noteworthy that the IRAL’s secretariat quickly produced a full questionnaire to government departments. The responses are likely to provide significant evidence relating to how government departments experience and perceive judicial review. This will be a valuable addition to our knowledge base. 

However, and this is to say the obvious, that evidence will only provide a partial view of the working of the system – the view of defendant public bodies subject to judicial review. Ideally, a similar exercise would be conducted to seek the views of claimants and their lawyers, as well as other users of the system.  Such an exercise would ideally enable the responses to be analysed and coherently presented as a corrective to defendant-focused evidence.  This of course would supplement but not replace individual submissions. It would help ensure that the IRAL has access to a full range of experiences and opinions.  Undertaking such an exercise in the time available will be a real challenge but one that is extremely important, and this exercise is something that we are currently considering with The Law Society.

The authors of this blog post are involved in a project funded by the ESRC with the objective of assisting The Law Society of England and Wales to amass an evidence-base that will help inform the Society’s response to the Review’s call for evidence and eventual reform agenda. The Law Society is the independent professional body representing solicitors in England and Wales. This blog post offers some initial observations about the Review and is written in a purely personal capacity and does not necessarily represent the views of The Law Society.

This blog was originally posted on the UK Constitutional Law Blog on 24th September 2020 and is available here.

If I could turn back time: the confusion between two TENETs and the role of trade marks

Image from Wikimedia Commons, the free media repository

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

Christopher Nolan’s much-anticipated “mind-bending” film Tenet was released in the UK in late August 2020 to mixed reviews. Nevertheless, it performed well internationally. This is not, however, surprising for Nolan, whose blockbusters Inception, Dunkirk and The Dark Knight trilogy saw massive box office returns.

“The story [in Tenet] takes on ideas of time and how we experience it – interacting a science fiction component with the classic elements of the spy genre”, Nolan said. The first trailer of the movie arrived with a simple title logo in which the last two letters, i.e. E and T, were inverted, making an indirect reference to the concept of time inversion which provides a framework for the film’s plot.

When the first trailer dropped in December 2019, a bicycle components brand based out of Bellingham in the US state of Washington, also named Tenet, published the following post on Instagram:

View this post on Instagram

𝟱/𝟮𝟱/𝟮𝟬 𝗨𝗣𝗗𝗔𝗧𝗘: 𝗔𝗽𝗽𝗮𝗿𝗲𝗻𝘁𝗹𝘆 𝗜 𝗻𝗲𝗲𝗱 𝘁𝗼 𝗵𝗶𝗴𝗵𝗹𝗶𝗴𝗵𝘁 𝘁𝗵𝗮𝘁 𝘁𝗵𝗶𝘀 𝗽𝗼𝘀𝘁 𝗶𝘀 𝗻𝗲𝗮𝗿𝗹𝘆 𝟲 𝗺𝗼𝗻𝘁𝗵𝘀 𝗼𝗹𝗱. 𝗦𝗶𝗻𝗰𝗲 𝗽𝗼𝘀𝘁𝗶𝗻𝗴 𝘁𝗵𝗶𝘀 𝗠𝗿. 𝗡𝗼𝗹𝗮𝗻 𝗮𝗻𝗱 𝗪𝗕 𝗵𝗮𝘀 𝗯𝗲𝗲𝗻 𝗶𝗻 𝗰𝗼𝗻𝘁𝗮𝗰𝘁 𝘄𝗶𝘁𝗵 𝘂𝘀 𝗿𝗲𝗴𝗮𝗿𝗱𝗶𝗻𝗴 𝘁𝗵𝗲 𝘀𝗶𝘁𝘂𝗮𝘁𝗶𝗼𝗻. 𝗜𝗳 𝘆𝗼𝘂 𝘄𝗼𝘂𝗹𝗱 𝗹𝗶𝗸𝗲 𝘁𝗼 𝗿𝗲𝗮𝗱 𝗠𝗿. 𝗡𝗼𝗹𝗮𝗻’𝘀 𝗲𝗺𝗮𝗶𝗹 𝗮𝘀 𝘄𝗲𝗹𝗹 𝗮𝘀 𝗼𝘂𝗿 𝗿𝗲𝗽𝗹𝘆 𝗶𝗻 𝘁𝗵𝗲𝗶𝗿 𝗲𝗻𝘁𝗶𝗿𝗲𝘁𝘆 𝘄𝗲 𝗵𝗮𝘃𝗲 𝗽𝗼𝘀𝘁𝗲𝗱 𝘁𝗵𝗲𝗺 𝗼𝗻 𝗼𝘂𝗿 𝘄𝗲𝗯𝘀𝗶𝘁𝗲. • ORIGINAL POST FROM 2019 -> No, despite the striking similarities, we are not making a movie with Christopher Nolan. Maybe it was a coincidence, or maybe Nolan was inspired by our branding; regardless the apparent negligence is frustrating to say the least. Thank you to all the people that have reached out in support of Tenet (the bike brand). When we became aware of this, our biggest fear was that many of our peers who haven’t heard of Tenet (the bike brand, shit this is going to get old quick) might think WE stole the logo from Nolan, when in reality, we launched long before this movie was announced. If you would like to share this post to help spread the word, it would be greatly appreciated. I’m sure one day we’ll all look back on this and shake our heads in disbelief. #supportriderowned #damntheman

A post shared by TENET COMPONENTS ™️ (@ride_tenet) on

Christopher Nolan was seemingly unaware that a strikingly similar logo was already being used by the bicycle making company. Tenet Bicycles holds a registration for the mark (USPTO, registration number 5581507) since 9 October 2018, i.e. prior to its adoption for the film. However, in trade mark law, this registration only protects them from the use of the word within the biking industry.

The core aim in registering a trade mark is to acquire a monopoly right over a sign that distinguishes a trader’s goods or services from those of others. But, that sign gives in principle protection in the class or classes of goods and services for which it is registered (there are 45 classes under the NICE classification system). For instance, the name Lloyds is used in various classes: a bank, a pharmacy chain and an insurance market, but only one bank, one pharmacy chain, etc. can register the mark Lloyds. Special rules apply, however, to very strong and vulnerably famous marks, which are afforded in trade mark law stronger protection against use by third parties, even on dissimilar goods or services and even if no confusion will arise on the part of the average consumer.

In the case at issue, there was understandably a real concern that people unfamiliar with the Washington-based brand, which launched in June 2018, would think that the recently established company attempted to ride on the coat-tails of the logo used to promote the forthcoming film of a reputable director in order to benefit from its prestige and power of attraction. Being minded to mitigate the risk of confusion, the founder of Tenet Bicycles, Tyler Deschaine, said in a public statement:

I don’t have any issue with them using the word Tenet, there are thousands of trademarks for that word across dozens of industries. My issue is with the stabilization, but that is neither here nor there. I’ve spoken with lawyers and despite the validity of my concerns; I’ve been advised not to pursue it. Even sending a letter could potentially open myself up to a pre-emptive lawsuit from Warner Brothers. These sorts of things can get dragged on for years and the legal fees can go well into the hundreds of thousands of dollars. We’re a tiny component company that is taking baby steps to carve out a place for ourselves in the industry. We in no way want to get raked through the coals of litigation. That would end poorly for us. Also, we’ve got more important things to focus on, like developing new product and creating rad content. I want to make it clear that I never thought of this scenario as a get rich quick scheme. At the end of the day, I just want to avoid potential damages to my brand’s reputation and I suppose this article will help clear the air.

After the publication of this statement, Warner Bros., the production company behind Nolan’s film, reached out to the bike parts manufacturer, with the following response by the director:

Dear Tyler,

Warners just showed me the logo for your company, so I wanted to reach out directly and reassure you that our logo was arrived at without reference to yours. I know this because I designed ours myself, evolving it over the last six years, driven by a fascination with the symmetries of a word which is central to my story and its themes. I thought I’d done something unique – but clearly, you were driven by the same creative impulse. I guess lightning can strike twice, and obviously I understand that you would not want anyone thinking that you had been inspired by our movie’s title treatment – feel free to quote me in shooting such misunderstandings down. I love our logo so I hope you won’t feel this is necessary, but if you like, I can stop using it since it seems you went public with yours first.

Yours respectfully.

Chris Nolan

This story is a useful reminder that not all trade mark disputes have to result in bitterly fought litigation. Both Deschaine and Nolan took this matter as a simple coincidence, though Tenet Bicycles did ask Warner Bros. to refrain from using the partially inverted logo with the same font for Nolan’s film. The producers followed up by slightly amending the film’s logo in its latest trailer, which premiered with a plain title card instead. This mutually acceptable outcome represents an amicable compromise and reasonable settlement of the issue, which led to positive publicity for both sides involved, the bicycle company and the film producers.

Another key take-away message is that brands must learn to carefully pick their battles. Warner Bros. producers could have been left with a PR nightmare on their hands, had they attempted to ‘discipline’ a small company. Resorting to legal correspondence with a threatening tone or aggressive point-scoring enforcement practices that frustrate lawyers and the public might not always be the best way forward. Instead, it is wise to determine on a case-by-case basis how best to address potentially infringing activities. The type of business being written to, the precise nature of the alleged infringement as well as the risk of future litigation and the management of commercial risks to the business itself should be carefully considered. The legal and public relations teams of brands need to work together in assessing whether to pursue cases of infringement, and if so, in what way. The balance between brand protection through robust legal enforcement and the risk of adverse publicity is a delicate one.

This piece first appeared on INFORRM, the International Forum for Responsible Media Blog, and is reproduced here with permission and thanks.

Essex Expertise Informs Facial Recognition Decision

The expertise and leading-edge research of three Essex academics has informed a landmark judgment on police use of facial recognition.

On Tuesday 11 August, the Court of Appeal delivered its judgment in a case brought by civil liberties campaigner Ed Bridges and the campaigning organisation Liberty, challenging a previous decision in favour of South Wales Police.

Mr Bridges, who lives in Cardiff, argued that it was possible South Wales Police had captured an image of his face on two occasions, as a result of facial recognition technology being deployed.

He brought a claim for judicial review, arguing that South Wales Police’s approach to deployment was incompatible with the right to respect for private life under Article 8 of the European Convention on Human Rights, data protection legislation, and the Public Sector Equality Duty under section 149 of the Equality Act 2010.

Professor Pete Fussey, from the Department of Sociology and Professor Lorna Woods and Dr Daragh Murray, both from the School of Law, contributed to a ‘Friends of the Court’ submission by the Surveillance Camera Commissioner to the Bridges appeal.

In addition, an annex, detailing Professor Fussey and Dr Murray’s findings in relation to the Metropolitan Police Service, was attached to the Surveillance Camera Commissioner’s submission.

The Court of Appeal upheld the Bridges appeal on four of its five grounds.

Commenting on the judgment, Professor Pete Fussey said: “The Court’s findings in relation to the use of live facial recognition technology by South Wales Police are consistent with our findings regarding the Metropolitan Police Service, in particular that such deployments are not ‘in accordance with the law’, and that too much discretion is given to police in determining who should be placed on a watchlist. The Court of Appeal was entirely correct in concluding that facial recognition cannot be considered as equivalent to the use of CCTV. The use of advanced surveillance technologies like live facial recognition demands proper consideration and full parliamentary scrutiny.”

Dr Daragh Murray said: “The use of advanced surveillance technologies, like live facial recognition, represent a step change in police capability, with potentially significant consequences for the functioning of our democracy, in terms of how individuals develop and interact and how challenges to, or protests against, government policy evolve. The Court of Appeal’s findings today regarding South Wales Police are consistent with many of our own conclusions regarding the Metropolitan Police Service. This is an important decision, particularly the conclusion that deployments were not ‘in accordance with the law’. However, many issues remain to be addressed, including the broader societal impact of facial recognition. What is abundantly clear is that all police forces should pay greater attention to human rights law considerations before deciding to deploy new surveillance technologies.”

Professor Lorna Woods said: “The judgment in ruling that the police use of Automated Facial Recognition as it stands is unlawful is welcome, but it also highlights the problems arising from a system where new surveillance technologies can be deployed based on very general common law powers without adequate safeguards. New legislation on this topic is required, to address not only the proposed use of facial recognition technology, but police use of Artificial Intelligence generally.”

Professor Lorna Woods is Professor of Internet Law. She has extensive experience in the field of media policy and communications regulation, including social media and the Internet and developed, with Will Perrin, a social media duty of care, which has had significant influence on the direction on the UK Online Harms debate. Professor Woods is an established member of a broader network of advisors who support the Surveillance Camera Commissioner in his role.

Professor Pete Fussey and Dr Daragh Murray are co-authors of the independent report into the London Metropolitan Police Service’s trial of live facial recognition technology, published by the ERSC Human Rights, Big Data and Technology Project in July 2019. It remains the only fully independently-funded report into police use of live facial recognition technology in the UK.

South Wales Police said it would not be appealing the Court of Appeal judgment.

This story originally appeared on the University of Essex website and is reproduced on our blog with permission and thanks.

The Coronavirus Act 2020 and Guidance Governing Social Relationships and Communication: An Orwellian Dystopia or a Protective Bubble?

Photo by Unsplash

On 10 September 2020, Dr Samantha Davey, Lecturer in Law at the University of Essex, presented her paper entitled ‘The Coronavirus Act 2020 and Guidance Governing Social Relationships and Communication: An Orwellian Dystopia or a Protective Bubble?’ at the digital conference ‘Are Emergency Measures in Response to COVID-19 a Threat to Democracy? Fact and Fiction,’ co-organised by the Institute of Advanced Legal Studies (IALS) and the Westminster Foundation for Democracy (WFD). 

Her paper examined the distinction between legally enforceable status of the Coronavirus Act 2020 and the persuasive status of various Government guidance on the coronavirus on social relationships and communications. Her paper placed a particular focus on social distancing, social gatherings and the use of face masks.

Just to provide an overview, the Coronavirus Act 2020 was created via emergency powers and was fast-tracked into existence in just four days. As a consequence, this statute lacked the usual prolonged scrutiny which legislation receives from the Houses of Parliament. The urgency to create new law was to address the high numbers of people becoming seriously ill or dying due to contracting the coronavirus. The Conservative Government was under pressure to impose practical measures via law to reduce the spread of the virus, which had swept across the world, and to provide special protection for vulnerable members of society including the elderly and disabled.

Dr. Davey’s paper sought to address the legitimacy of ministerial coronavirus guidance which has been created through powers under the Coronavirus Act.

It placed a focus  on social distancing, social gatherings and the use of face masks. In doing so, her paper explored the legitimacy of the coronavirus guidance and its application by public bodies, with reference to three of the Nolan principles on integrity, accountability and openness, which guide the conduct of public officials such as ministers.

The discussion considered how social and familial relationships are being increasingly regulated, including by criminal law, due to the guidance created by the Executive and applied by public bodies such as the police. A particular cause for concern is the extent to which members of the public and public bodies (such as police and councils) can fully appreciate the distinction between guidance, which is not usually legally enforceable, and legislation, which is legally enforceable.

Supporting the Colombian Transitional Justice Process

Image by Pixabay

GCRF@Essex interview questions: Prof. Sabine Michalowski and Prof. Clara Sandoval-Villalba

Partners/organisations: Dejusticia, a Colombian Think-Do-Tank

What is your research about?

Colombia and the FARC (Revolutionary Armed Forces of Colombia—People’s Army; Spanish: Fuerzas Armadas Revolucionarias de Colombia) signed a comprehensive peace agreement in 2016 which devises a transitional justice system to respond to the atrocities suffered by more than 9 million victims over various decades of armed conflict. The focus of our research is the transitional justice system (mechanisms and processes) which was designed by the peace agreement. In particular, our research focuses on one of the key transitional justice mechanisms: the Special Jurisdiction for Peace (SJP), which was created to ensure accountability for the atrocities, especially on how its work can be supported and strengthened to fulfil victims’ right to justice, reparation, and truth.

What activities did your GCRF@Essex funding support?

Our GCRF@Essex funding supported trips to Colombia to build and strengthen networks and contacts, hold events such as meetings with colleagues at the Special Jurisdiction for Peace about the challenges they are facing. We also organised meetings to receive feedback from relevant stakeholders on our research, and on future research that would be of relevance for Colombian transitional justice actors.

We also hired Colombian researchers to write policy papers and other documents, for example, a guide on how the Colombian Special Jurisdiction should deal with economic actors and how to define legal concepts that are of crucial importance for the work of the Special Jurisdiction for Peace. We launched these publications at events in Bogota.

We also obtained GCRF@Essex funded fellowships for several Colombian colleagues to attend the Human Rights Centre Research Methods summer school at Essex or to spend some research time at Essex to develop further research projects. For example, a key GCRF@Essex funded activity was to carry out joint research with Dejusticia, a Colombia-based research and advocacy organisation dedicated to the strengthening of the rule of law and the promotion of social justice and human rights in Colombia and the Global South. We successfully applied with Dejusticia colleagues to an AHRC GCRF urgency funding call and are currently working with Dejusticia and the Bonavero Institute for Human Rights at the University of Oxford on the AHRC funded project: Legitimacy, accountability, victims’ participation and reparation in transitional justice settings – lessons from and for Colombia. GCRF@Essex funds have supported our work on various legal and other issues that have emerged from this AHRC grant. For example, work on potential alternative sanctions for those responsible for mass atrocities who confess their crimes before the Special Jurisdiction for Peace.

You have been looking at the Special Jurisdiction for Peace (SJP) in Colombia, how is your project benefitting the country and which Sustainable Development Goals (SDGs) are being addressed?

Our project benefits the country by strengthening the work of the Colombian Special Jurisdiction for Peace (SJP), which plays a central role for ending impunity, achieving accountability for conflict related crimes and justice for victims. Through assisting the SJP we ultimately support the goals of consolidating peace and promoting reconciliation. The SJP is working under enormously challenging circumstances, as Colombia is a highly polarised country and the implementation of the peace agreement, and the legitimacy of the SJP, are highly contested. In that context, it is of crucial importance to support the SJP’s work. The legal framework within which this jurisdiction is working is new not only in Colombia but also worldwide. Colombia’s transitional justice approach is highly innovative and ambitious and that translates into big challenges that need to be overcome on a daily basis. The daily work of the SJP raises many conceptual challenges that are relevant for advancing SDGs 16 (Promoting Peace, Justice and Strong Institutions), 10 (Reducing Inequalities), and 5 (promoting gender equality). Our research contributes to Colombia’s achieving these goals by providing urgently needed recommendations to the SJP, particularly on key legal concepts such as the criteria for the selection of cases, victim participation and reparation. All of this strengthens the work of the SJP.

What tips would you give to other people applying for projects funded by the Global Challenge Research Fund?

The main advice would be to invest a lot of time and effort in building in-country academic and non-academic networks and devise projects with partners and stakeholders in the relevant countries to maximise the impact of the research.

Your GCRF activities have involved various colleagues from Colombia, especially Dejusticia and the SJP, how did you find your collaborators?

Initially, we built the connection with Dejusticia more than a decade ago, in the context of a project focused on linking corporate accountability and transitional justice, funded by a British Academy UK Latin America links grant. To that event, we invited a colleague from Dejusticia to a seminar at Essex who then contributed to an edited collection that followed from that project. We sustained and broadened our links with Dejusticia through regular visits to Colombia where we would hold meetings with them and gradually started to design and carry out joint projects.

Collaboration with the Special Jurisdiction for Peace partly came about through professional contacts who work at the SJP, but also through regular meetings jointly organised with Dejusticia where we would provide a space to exchange experiences and be kept updated with the main challenges the SJP is facing. This information feeds back into our work and makes it relevant to the work of the SJP which in turn helps to broaden our networks in Colombia.

What were the main challenges you encountered working on these collaborative projects?

Obtaining the necessary funding to keep the projects going and finding the time for our involvement.

How do your GCRF funded projects support your wider research plans?

Our research plans have greatly benefited from GCRF funding, as our research is impact focused and the GCRF funded projects permitted us to focus on our areas of interest while at the same time devising impact work which we consider of significant importance in the area of transitional justice. Importantly, GCRF funding has permitted us to tackle relevant issues that have come to our attention in the middle of other research, and to respond to them effectively by having access to the necessary human and other resources to carry out quality and timely research.

This interview first appeared on the website of the University of Essex and is reproduced on our research blog with permission and thanks.

The Essence of Slavery: Exploitation in Human Rights Law

Dr Marija Jovanovic, Lecturer in Law, University of Essex, has published a new article on ‘The Essence of Slavery: Exploitation in Human Rights Law’

child labor, historic, people, children, black and white, sepia, mining, hard work
Image courtesy of

The article is one of the few attempts to explore the meaning of exploitation in international law and the first to try articulating its legal parameters in the context of the human rights prohibition of ‘modern slavery’. This is a pressing task because of the proliferation of legislation, policy instruments, and academic work on ‘modern slavery’ and human trafficking, which rely heavily on the concept but do not define it.

By articulating the necessary and sufficient conditions for the notion of exploitation, the present study contributes to a better understanding, interpretation, and application of the prohibition of slavery, servitude, forced or compulsory labour, and human trafficking. 

The article was published in the Human Rights Law Review. For access, contact the author directly at:

The UK and the EU’s Fifth Anti-Money Laundering Directive: Exceeding Expectations

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Dr. Mohammed Khair Alshaleel, Lecturer in Law, University of Essex, published a new article on ‘The UK and the EU’s Fifth Anti-Money Laundering Directive: Exceeding Expectations’.

The article considers the UK implementation of the Fifth Money Laundering Directive. It examines the key changes introduced by the new Directive and their impact on the UK anti-money laundering regime.

Given the evolving nature of threats relating to money laundering and the latest technological developments, this article argues that the UK has decided to go beyond the EU minimum requirements.

The paper outlines the concept of money laundering and the UK legal framework of anti-money laundering, before assessing the main changes and their effects on the UK anti-money laundering regime.

The article was published on European Company Law (Volume 17, Issue 4, pp. 123-132), and can be access here.