How to Set up and Run a Law Clinic

23 Jan 202423 Jan 2024 / essexlawresearch / Leave a comment

By Professor Donald Nicolson, Essex Law School

The dark days of December were somewhat relieved by the arrival of my book, How to Set Up and Run a Law Clinic: Principles and Practices (published by Edward Elgar). It was written with two friends and colleagues: JoNel Newman and Richard Grimes. I met JoNel at a workshop on teaching ethics at Atlanta and subsequently we have co-written articles and given papers on clinics and ethics, and ran a student exchange programme between her Health Rights Clinic at the University of Miami and the University of Strathclyde Law Clinic which I set up. Richard and I go even further back, as he is one of the leading UK figures in clinical legal education and I learnt a lot from him when he was an external examiner for the innovative Strathclyde Clinical LLB I developed.

When Edgar Elgar approached me to write this book, I immediately turned to JoNel and Richard to ensure a variety of perspectives on clinics and clinical legal education. Richard has been involved in clinics for even longer than me, having set up one of the first in England while being involved in many others ranging from Afghanistan to Vietnam, as well as the Clinical Legal Education Organisation (of which I am trustee). He has always seen clinics primarily as a vehicle for improving legal education – though he is also passionate about serving the community. As someone who was involved in University of Cape Town Legal Aid, a totally student-run clinic, designed to redress the dire state of access to justice in apartheid South Africa, my motivation for setting up two law clinics in the UK was rather different. I saw community service through voluntary, as opposed to curricular, student activities as the overriding goal and instinctively involved students in clinic development and the management of the clinics I set up (the University of Bristol and University of Strathclyde Law Clinics). Much later, I came round to formalising student learning, not least because this aids in the inculcation of ethical and justice values. Indeed, I set up the Clinical LLB to allow students to integrate their three to five years of clinical experience throughout the standard law curriculum. JoNel fitted somewhere between our perspectives: all her students get credit for their one year of clinic work, but her clinic also seeks to serve as many of the community as is possible. As expected, these different perspectives gave rise to many robust debates between us, but hopefully – along with being able to draw on more than a hundred years of clinical experience – it enabled us to provide a comprehensive guide to all the things prospective clinics need to think about and existing clinics might benefit from rethinking. Pearls, after all, are created by grit in the shell!

Turning to the book itself, Chapter One provides an introduction to student law clinics and clinical legal education and their long history (the first clinic was established in Denmark more than 130 years ago!). The second chapter then examines the different goals clinics might have, most notably educating students and serving the community – the tension between which runs as a theme running throughout the rest of the book – as well as enhancing student employability, universities’ reputation, and a more diverse legal profession. The next chapter then looks at basic organisational options clinics must consider: whether they are curricular or extra-curricular; voluntary or optional; live or simulated; run in-house or through placements; managed by staff or students; and finally whether they are free or (surprisingly to some) fee-charging.

The next three chapters look at the heart of clinic operations. Chapter Four surveys what services clinics can provide. These range from the more limited and individually oriented ones of legal advice or other limited forms of ‘unbundled’ services like form-filling to the more extensive representation of individuals in disputes and the provision of ‘transactional’ services to businesses and other organisations. Much wider in their impact are what we call ‘wholesale services’ which try to help large groups of people by changing the law either through legislative or administrative reform or strategic litigation, by assisting communities acting to bring about social changes, or by educating the public or other service providers about the law (public legal education or Street Law). Chapter Fives looks at choices relating to service delivery models: by whom (students only on or professionals); when (term-time only, day-time only); where (on campus or in the community); and how (face-to-face, online or via the web). Having extensively researched the hundreds of clinics world-wide, it was highly instructive to learn how many different ways there are of serving the public and enhancing student development. No one clinic can come close to offering the full range of services, but a major aim of the book is to help them make more informed decisions about which to develop, and to consider alternatives to their current model.

Chapter Six is devoted to how best to train, supervise, teach and assess students, as well as other means of quality assurance in clinics. Chapter Seven looks at various ways to ensure that they are effective and sustainable and then the final chapter provides a checklist for establishing and maintaining a successful clinic. Here, in particular, I have drawn on much we do at the Essex Law Clinic, such as our unique system of Bronze to Platinum progression and our ‘Summer List’ of possible improvements to the Clinic (so called because this is the only time we can take a breath from the helter-skelter of training, students, handling cases and running projects!).

However, the debt to Essex Law Clinic goes deeper than that. Having set up two law clinics based largely on my experience in the student-run University of Cape Town clinic, coming to a very different model forced me to rethink quite a lot of my assumptions and come up with new ways of ensuring that the clinic reaches its potential in serving the public and its student members. Hopefully, others will benefit from the extensive personal experiences and survey of the clinical literature we drew on to write this book.

‘This book is very comprehensive and well-researched. It will be particularly helpful to academics wanting or needing to start a clinic. It shows them the choices they need to make on key issues and the options they have. It will also be a useful resource for those who take clinic design seriously.’

– Jeff Giddings, Monash University, Australia

‘How I wish this book had been available when I set up my first clinic! A comprehensive and detailed resource, full of wisdom, experience and practical know-how that will prove a go-to text for clinicians new and experienced alike. I am delighted that I will have it to hand hereafter.’

– Linden Thomas, University of Birmingham, UK

‘This book is a tremendous resource for legal educators around the world. It includes a comprehensive examination of the challenges of setting up an effective and sustainable legal clinic, with insightful analysis of often competing academic and public service goals as well as practical approaches to meeting those challenges.’

– Frank S. Bloch, Vanderbilt University Law School, US

‘The book is a comprehensive smorgasbord of options for establishing, managing and developing CLE programmes with a social justice service element, based on the extensive international and national experience of the three authors and other clinical law teachers. It provides a valuable addition to the global publications in the field.’

– David McQuoid-Mason, University of KwaZulu

Tackling the Blind Spot of the UK Anti-Slavery Regime: Groundbreaking Research on Modern Slavery Survivors in UK Prisons

19 Dec 20231 Mar 2024 / essexlawresearch / Leave a comment

Groundbreaking research led by Essex Law School’s Senior Lecturer Dr Marija Jovanovic uncovers the realities of modern slavery survivors in UK prisons in a report published on 28 November 2023. The report, Tackling the blind spot of the UK anti-slavery regime: the role and responsibility of prisons in securing the rights of modern slavery survivors, contains findings from a 12-month research project conducted in partnership between the University of Essex, the International Organization for Migration (IOM) in the UK and Hibiscus Initiatives. It was commissioned by the Modern Slavery & Human Rights Policy and Evidence Centre (Modern Slavery PEC), which in turn is funded by the Arts and Humanities Research Council (AHRC).

The research combined a doctrinal analysis of the relevant law, policy, and secondary sources with interviews with a range of stakeholders including adult survivors of modern slavery who had been in prison in the UK, NGOs, prison administration and staff in all three devolved jurisdictions, solicitors, police officers, and other experts. A survey was also conducted with Modern Slavery Single Points of Contact (SPOCs) recently appointed in all prisons in England and Wales.

Dr Jovanovic and the IOM UK hosted a high-profile launch event on 28 November 2023 with more than 110 people in attendance, both online and in person. The speakers were the Chief of Mission of the IOM in the UK, the Executive Secretary of the Council of Europe’s expert group on human trafficking (GRETA), the Policy Lead on Modern Slavery at His Majesty’s Prison and Probation Service (HMPPS), the Director of Policy Impact at Modern Slavery PEC, and Head of Policy and Public Affairs at Hibiscus Initiatives.

**From left to right: Ann Snowden (HMPPS), Petya Nestorova (GRETA), Christa Rottensteiner (IOM UK), Marija Jovanovic (University of Essex), Olivia Hesketh (Modern Slavery PEC).**

**From left to right: Ann Snowden (HMPPS), Petya Nestorova (GRETA), Patrick Burland (IOM UK)**

The report reveals the reality of how countries treat modern slavery survivors, which is more complicated than commonly thought. Dr Jovanovic pointed out that contrary to the clear and express international obligations of states to identify and protect the survivors of modern slavery and prosecute and punish the perpetrators, “it is not out of the question that there might be more survivors than perpetrators in UK prisons”. Instead of being protected, many survivors are sent to prisons sometimes for the crimes they were forced to commit by their traffickers. Jakub Sobik from the Modern Slavery PEC said: “Prisons represent a missing piece in the UK’s response to modern slavery – this groundbreaking research is the first one to fill this gap, even though there’s clearly more to uncover.”

The research identified key challenges in the UK’s complying with its international obligations to identify and protect every survivor of modern slavery, including those in prisons. They include: the lack of systematic information-sharing between prisons and the designated Home Office Competent Authorities in charge of victim identification; insufficient training of prison staff about the issue of modern slavery; prison staff not being authorised to refer potential victims to the National Referral Mechanism designed to facilitate victim identification and support; and barriers to disclosure in prison.

The report also includes proposals for a number of legal, policy, and practical measures required to bring current practices in line with requirements arising out of international and domestic law.

For more details of the research and report, you can find the press release here and the full report here.

The Crown’s Final Act: Unveiling Insights into Public Law with Professor Maurice Sunkin

14 Dec 2023 / essexlawresearch / Leave a comment

Professor Maurice Sunkin discussed the new relationship between the Crown and the Government

The eagerly awaited concluding part of the series The Crown is set to arrive on 14 December 2023. Professor Maurice Sunkin recently engaged in an interview with Italy’s esteemed public national broadcaster RAI, delving into the intricacies raised by this acclaimed historical drama.

The show, a fictional portrayal of Queen Elizabeth II’s journey intertwined with the pivotal political events of her reign, prompted probing questions regarding public law. During the interview, Professor Sunkin provided insightful perspectives on topics such as the Crown’s impartiality and legitimacy. A noteworthy excerpt from his interview is highlighted below:

What will the reign of King Charles III be like?

His mother was very widely respected and admired and even loved by many. In part because she presented the image of a kindly grandmother. In part, because she had served the country for so long. In part, because people recognised the troubles that she must have confronted. And in part, possibly in large, part because she generally kept herself aloof and apart. She had a deep respect for the sanctity of the institution that she represented. For the most part she kept the Crown away from the trials and tribulations of daily life and politics. This has always been very important.

Charles III is a rather different person – his personal life has been much more public. He is known to have views on matters of public discussion, and has been willing to have his views expressed. In these senses he is much more likely to make the Crown a more engaged institution. But this carries risks. The Crown’s standing depends largely on its symbolic and institutional status as above and beyond politics and normal life. There are real risks that this status could be challenged if the King becomes more active and open to personal criticism.

So there’s a very fine balance – between modernising the Crown and shaking off the dust of previous periods while retaining the symbolic status of the Crown as an institution above and beyond day to day life and politics. We’ll have to see how well that balance is achieved.

How can he maintain his commitment to the environment while preserving impartiality as head of State?

This is one of the challenges that he and his advisers are no doubt thinking about very carefully. One the one hand he will not want to get too closely involved in political disputation or in direct campaigning. On the other he will be concerned to ensure that the Crown is seen to be aware of, and concerned, about the need for environmental protection. If he does too much he will damage the Crown by dividing opinion. If he does too little he will damage the Crown by presenting it as unaware, uncaring and out of touch.

The key will be in his and his family’s own actions. How he is seen to be managing his estates. How he is seen to be conducting his own affairs. Careful attention to matters such as travel. Sensitive organisation of the Crown’s affairs. Supporting environmentally friendly charitable activities

Considering the majority of the population declares themselves as non-Christian (Census 2021), what legitimises the role of bishops in the House of Lords and a King as both head of Anglican Church and State?

This is an important and big question. The King is the head of the Church of England. The Bishops are in the House of Lords because of the standing of the Church of England. Some will see these as out dated relics that no longer fit with a modern liberal pluralist democratic society. In these respects they represent the archaic character of the Crown itself – but they add an increasingly challenging dimension as the UK becomes more diverse and less religious.

When the King is crowned it will be a heavily religious ceremony rooted in Christian Anglicanism. It will be interesting to see if there is anything in the ceremony to reflect a non Anglican view of the world. Either way it will be interesting to see how people react. There can be little doubt that Charles III is alive to these issues and will do everything he can to strengthen links with non-Anglicans.

Could the reform of the House of Lords, a Labour proposal, change the institutional structure of the State?

Like the Crown, the House of Lords is a feature of the UK’s constitutional system that is not obviously democratic. But reform has been on the agenda for years and little has been achieved. Whether reform will alter the structure of the state depends of course on the nature of the reform. In my view a second chamber is valuable not least because it diffuses the power of the executive in the HC. But it’s clearly no longer appropriate to have a second chamber with no political legitimacy. So, a way needs to be found to provide political legitimacy without simply duplicating the power relationships in the HC. If this can be done it will significantly strengthen the work of Parliament.

Is it time for the UK to have a written Constitution?

This is a good exam question for first year law students. The UK constitution is a complete mystery to most people –even to those of us who haves studied or work with it for years. Every time public issues arise – such as around the power of the executive in relation to Brexit or its ability to prorogue Parliament – or about the powers of the executive to send troops abroad – we realise how little we understand about some of the basics of our constitution.

So, one of the key benefits of attempting to write down our constitution down is educational we would learn more about it. Key issues – such as around matters that we’ve been talking about – would be more widely discussed including in schools.

Setting things in written would also add clarity. If the key institutions and their powers and responsibilities were set out in a single clear document this would have tremendous value and add clarity and help most of us understand the system – it would in sense be a great boost to our democratic culture and to the rule of law.

That’s not to say that everything could be written down. We shouldn’t assume that setting out the basics would resolve all the problems or tensions. The system would still have to operate and practice and culture would still evolve. But we would have a clearer written starting point would be a great help. I’m a great enthusiast for trying to present the nature of our system as clearly as possible and at the moment too much power is in the hands of those on the inside who have the ability to determine what the constitution requires.

Human Rights is a good example. The Human Rights Act 1998 which incorporated the Convention Rights made these rights much clearer and accessible. Now there are threats to repeal the Act and replace it with more amorphous principles. Such a reform will not add clarity but will make the system less clear and possibly open the UK to greater scrutiny from the ECtHR.

Decoding Historical Power Struggles and Shifting Paradigms in Assisted Death: In Conversation with Dr. Rees Johnson

6 Dec 2023 / essexlawresearch / Leave a comment

Assisted death remains a complex and polarising issue. On one hand, proponents highlight the need to preserve dignity in dying calling for a more compassionate response to the law. Opponents object, emphasising concerns about diminishing the sanctity of human life, the risks of introducing a slippery slope, and highlighting negative impacts on the doctor-patient relationship. The debate around assisted death is staggering which begs the question: what more could be said of the problem of assisted death that has not been said 100 times over?

For Dr Rees Johnson, there is an important underlying context that is essential to future reform attempts. Dr. Johnson is a Lecturer at the Essex Law School. His research interests include end-of-life matters and the racial/cultural contexts of end-of-life care. He teaches Medical Law and Property Law. Rees recently concluded his PhD: Situating Medical Power within the Modern (Legal) History of Assisted Death: 1936 – Present.

The Research Visibility Team interviewed Dr. Rees Johnson to find out more about his thesis and research.

In layman’s terms, what is the problem your research aims to fix and how would you describe your contribution to your subject area?

My PhD was borne out of frustration. The frustration I had was with the state of the academic debate and how I felt the way the problem of assisted death was being debated. After conducting an extensive literature review, I felt that the conventional framing of assisted death as a legal and/or ethical problem created a cyclical effect. Ethical and legal discourses have been deployed to advocate reform; and yet the same ethical and legal discourses have been inverted to argue the opposite. Rinse and repeat for nearly 100 years.

Considering this circular argumentation, how could the law progress when it is hindered by uncertainty and indeterminacy? What is the function of this uncertainty and indeterminacy? Who stands to benefit from this uncertainty and indeterminacy? What strategies have been deployed to preserve this uncertainty and indeterminacy? These were some of the questions I felt needed answering.

By adopting a critical historical analysis inspired by Michel Foucault, I examined the legal history of assisted death to determine whether something else was going on beneath the conventional framing.

I came to realise that the legal developments of assisted death have been constrained by an underlying tension: the tension between preserving medical power and authority on the one hand; and subverting it on the other.

My PhD therefore mapped out the ways this tension has played out. Using a historical frame, it charted the interest-driven strategies, interpretive struggles, and discursive practices of institutional actors (judges, lawyers, academics, medical professionals etc.) as well as the impact of these on the legal development of assisted death.

If your thesis was a front-page story in a newspaper, what would be the headline?

Facing the Challenge of Medical Power: A Call for Assisted Dying Law Reform

What inspired you to delve into the intersection of law, ethics, and power dynamics within the context of assisted death?

My background is in environmental law, having done Law with Environmental Science LLB at Northumbria University in 2014 and an LLM in Sustainable Development and Environmental Regulation at Newcastle University in 2016. I wrote my LLM dissertation on the legal rights of nature and the need for a pragmatic middle-ground.

During the LLM, I was introduced to the work of Michel Foucault when I studied ‘Critical Geopolitics’ in the Politics Department at Newcastle University, following a three-month trip to Israel in 2015. This introduction changed my worldview about pretty much everything – especially the law, and the way law supports and fosters power relations to the detriment of those at the margins.

After the LLM, I received a £30,000 funding package from Newcastle University to develop a SmartBot that could write a will for the purpose of estate planning. It was here that I became interested in death and dying. This seems like an unusual trajectory, but the PhD is simply a meeting of these two worlds.

Your thesis employs a critical historiographical method inspired by Michel Foucault. What key insights does this approach offer that traditional legal and ethical frameworks might overlook?

I think adopting a method of legal analysis that moves away from concentrating on formal modes or structures of power and authority is important. Foucault teaches us to consider the underlying, subtle ways in which power is exercised that are not immediately obvious, such as through discursive practices like medicalisation and expertise. In parliamentary debates or case law on assisted dying, it is difficult to unsee how politicians and judges help to legitimise and uphold these techniques.

The methodological approach was also helpful in that it allowed for the explication of power relations inherent in the development of legal knowledge and how this unfolds over time. Legal knowledge is not neutral but historically contingent and situationally negotiated through a constellation of power relations. This helps us to adopt a more critical approach to the development of legal knowledge and legal ideas.

Your thesis suggests the need to draw a line as a matter of policy to avoid conferring too much power and authority to the medical profession in the context of assisted death. Could you elaborate on potential alternative approaches or policies that could genuinely empower patients while ensuring a balance between autonomy and medical authority? What considerations should future proposals take into account?

In my PhD, I argue that the reason the law has not changed is that current and historic proposals would undermine the status quo of medical power and authority.

The issue the medical profession has had with reforming the law is that reformers have proposed bringing in third parties, such as referees/judges, into proceedings. As long as these safeguards remain, the dominant medical culture will remain opposed where external involvement risks undermining its professional autonomy. These are too explicit terms, however. Often you will hear about the need to preserve the doctor-patient relationship which seems noble. However, the foundation of this power relationship is trust; and trust is essential to maintaining the professional autonomy of the medical profession. It is from this autonomy that the profession derives its power and authority.

To circumvent this, I drew upon the work of Suzanne Ost and Margaret Brazier to propose de-medicalising assisted death to enable people to have an assisted death beyond the grip of medical power and authority. I see no reason why assisted death needs to be within the domain of medical practice. There are important policy/social reasons why we might not want to extend the power of the profession to encompass power and authority over death itself. For that reason, I would reject the need to strike a balance between patient autonomy and medical authority.

Reflecting on your research journey, what challenges did you encounter in examining the historical contingency and power relations surrounding assisted death?

The project was a huge undertaking. The debate in Britain is nearly a century old. There have been a lot of shifts in the debate, its discourses, and the range of institutional actors that have emerged within the debate at different historical points. Trying to capture this in 80,000 words meant I had to be very selective. A lot of my ‘darlings’ had to be killed, and so learning to let certain ideas or contexts go was difficult.

The biggest hurdle was attempting to incorporate Foucauldian philosophy into an ethico-legal analysis of assisted dying. I faced difficulties trying to convince others of the value or utility of my theoretical and methodological choices especially those who have fed into the conventional frame.

My critical approach is not traditional within the bioethical intellectual space. Whilst others were saying assisted death is a legal problem, or an ethical problem, I was arguing that the frameworks of law and ethics occlude an underlying context –– that assisted death is better problematised as a problem of ideology, of power.

The preservation of medical power and authority is the root of the failure of past reform attempts. In knowing this, future reform attempts can concentrate their efforts on new points of resistance that can overcome the constraining effects of medical power and authority.

Now that you submitted your thesis, how do you plan to move forward in terms of your research?

Having examined the ways in which medical power and authority have shaped legal developments of assisted death, I am now keen to examine the other aspect of the power relationship: the patient.

I am interested in those patients who are more susceptible to the effects and constraints of medical power and authority.

Currently, I am exploring the racial and cultural contexts of assisted dying reform and how changes in the law might impact people of colour and, importantly, what we ought to do about this.

Elevate Your Academic Journey: SENSS and Essex Law School Unite for Excellence

1 Dec 20231 Dec 2023 / essexlawresearch / Leave a comment

If you are an aspiring legal scholar seeking advanced training in law within a dynamic research environment that encourages innovation and interdisciplinary exploration, the SENSS Doctoral Training Partnership at Essex Law School could be your gateway to an exciting academic journey.

What is SENSS?

The South and East Network for Social Sciences (SENSS), an ESRC-funded Doctoral Training Partnership (DTP), is dedicated to fostering innovative and inclusive social science research training and collaboration. Among the eight distinguished institutions comprising SENSS, the University of Essex plays a pivotal role as the coordinating institution.

SENSS provides fully-funded doctoral studentships, mentorship from global experts, personalised research methods training, and diverse placements as part of its Doctoral Training Partnership. These opportunities empower researchers to extend their social scientific skills beyond academia.

Here at the Essex Law School and Human Rights Centre, aspiring PhD students can apply for SENSS studentships, unlocking comprehensive support and collaborative excellence in their academic journey.

Why choose the Essex Law School?

Choosing where to pursue your doctoral training is a significant decision. At the Essex Law School, we have meticulously crafted an environment that champions excellence and fuels innovation. Here is why you should join us:

We are a research powerhouse. Our Law School has been ranked 3rd in the UK for research power in law according to the Times Higher Education research power measure (REF2021). Law at Essex is also ranked 47th in the THE World University Rankings, which show the strongest universities across the globe for key subjects (and 9th for UK Universities). This speaks volumes about the calibre of research conducted within our School. Our academic staff collaborates globally, working with the United Nations, the European Union, governments, and non-governmental organisations.

We believe in the power of interdisciplinary research. Our dynamic research clusters foster collaboration across diverse backgrounds, creating a vibrant intellectual space for innovative and stimulating legal exploration.

With expertise spanning diverse legal disciplines, our academics are the driving force behind the Law School’s excellence. Our faculty boasts exceptional scholars, providing intellectual leadership in key areas, including Human Rights Law, led by Dr. Andrew Fagan who is Director of the Human Rights Centre; International & Comparative Law led by Professor Yseult Marique, an associate member of the International Academy of Comparative Law; Private and Business Law, led by Professor Christopher Willett who also spearheads the Law, Business and Technology Interdisciplinary Hub; as well as Public Law & Sociolegal Studies, led by Professor Theodore Konstadinides, who is also a founder member of the Constitutional and Administrative Justice Initiative (CAJI).

Our academic leads are ready to guide you and link you with the ideal academic mentors.

Our research student community is central to our success. These talented individuals explore a broad range of exciting topics under expert supervision, forming a vibrant tapestry of ideas.

Our Essex Law Research Blog features Vanessa Topp, a SENSS-funded doctoral candidate at the Essex Law School & Human Rights Centre, who offers below her insights into the application process and provides valuable advice for prospective candidates.

Can you share your experience with the application process for the SENSS Doctoral Training Partnership and highlight how the partnership’s collaborative approach influenced your decision to apply?

“I applied for the student-led studentship with SENSS, and throughout the application process, I received invaluable support from my supervisors and my department which allowed me to refine and greatly improve my proposal.”

“While the multiple rounds of review and steps involved in the application process initially felt somewhat intimidating and fast-paced, the ability to receive and implement feedback from several different perspectives was ultimately crucial to building a successful application.”

“There are several reasons why I was particularly drawn to SENSS. I am particularly excited to be a part of the SENSS network because it allows me to collaborate with academics from other institutions that are part of the DTP working on research relevant to my own and I look forward to participating in cross-institutional knowledge sharing.”

“I also appreciate the opportunities provided through SENSS to conduct fieldwork in collaboration with external partner organisations or to potentially participate in an overseas institutional visit at another university which I feel will lead to more meaningful and impactful research.”

Reflecting on your successful application, what tips or insights would you offer to prospective candidates aiming to secure SENSS funding and maximise the opportunities offered by this collaborative platform of universities?

“Start the process as early as possible so you can revise your application several times and be open to taking on board feedback, while also remembering that ultimately it is your project, and you have to be happy with the proposal you design.”

“The SENSS application contains a lot of different elements – not just the proposal – so make sure to take your time with these as well. The space to write your proposal in the application form is quite compact, so these other parts of the application form can provide an important opportunity to provide more information that you could not include in the proposal for space limitations; about your project, who you are as a candidate, and how you are the best fit to your project.”

“SENSS is a collaborative network, so it is also important to look into what this means and to highlight what aspects you would like to participate in and what your contributions will be.”

Where can you find out more?

Explore the opportunities offered by the SENSS scholarships at the Essex Law School on our informative webpages. Discover eligibility criteria, application processes, and the outstanding benefits that await you by accessing the downloadable documents provided below.

For inquiries about legal research and the SENSS scheme, please contact Dr. Anil Yilmaz Vastardis, our Postgraduate Research Director.

Specific questions about academic disciplines? Reach out directly to our dedicated Academic Leads (mentioned above) who can put you in touch with suitable supervisors.

Embark on your journey to become a world-leading scholar in law. Do not miss the chance to join SENSS at the Essex Law School, where innovation, excellence, and transformation define the doctoral experience.

Navigating Challenges and Solutions in Grandparental Rights: Insights from the 2023 Grandparents United for Children Conference

29 Nov 202329 Nov 2023 / essexlawresearch / Leave a comment

The Grandparents United for Children Conference at Leeds Beckett Law School on 21 November 2023 saw a gathering of individuals passionate about addressing the challenges faced by grandparents who lose contact with their grandchildren.

The hybrid presentation by Dr. Samantha Davey of the University of Essex and Dr. Charlotte Bendall of the University of Birmingham on their research into mediation shed light on the complexities and potential solutions surrounding this issue.

Drs. Davey and Bendall delved into the intricacies of mediation, focusing on the formidable challenges encountered by grandparents in contact disputes. The discussion centred on the notable absence of explicit references to grandparents in the Children Act 1989, rendering them devoid of certain rights. This regulatory gap exposes the vulnerability of grandparental contact, with subsequent re-establishment proving to be particularly challenging.

Their interest extended towards a comprehensive examination of grandparents’ encounters with both court processes and mediation, drawing insightful comparisons between the two. A key objective was to gain an understanding of grandparents’ experiences and to explore avenues for improving the existing system.

The event was organised by Tina Gallagher from Grandparents United for Children and chaired by Jasvinder Sanghera, a prominent advocate for women’s human rights. The conference provided an important platform for grandparents, academics, legal practitioners, and child welfare professionals to share their experiences and expertise.

The conference featured the perspectives of both grandparents and grandchildren. It also included a poignant and personal address from Jay Kontzle, an actor from the popular ITV soap opera Emmerdale Farm.

Jay’s heartfelt reflections on being raised by his maternal grandparents resonated deeply with the audience, reinforcing the importance of intergenerational relationships and how grandparents can influence the identity of their grandchildren.

The experience of a grandparent, estranged from her grandchild.

Overall, the Grandparents United for Children Conference was a success, fostering thought-provoking conversations, and serving as a catalyst for meaningful action to support grandparents and grandchildren facing these challenging circumstances.

Drs. Bendall and Davey are currently recruiting grandparents, mediators, and solicitors for a research study on their experiences of court and mediation. If you are interested or know someone else who would like to participate, please contact Dr. Davey at smdave@essex.ac.uk.

recruitment-poster-for-grandparents Download

Essex Law Scholars Tackle Corporate Accountability and Human Rights at the U.N. Forum on Business and Human Rights

23 Nov 20236 Dec 2023 / essexlawresearch

**The UN Human Rights Council room ceiling in Geneva**

From 27-29 November, the United Nations in Geneva will host its 12th annual U.N. Forum on Business and Human Rights. Essex Law School scholars Drs Jessica Lawrence and Tara Van Ho and Professors Sabine Michalowski and Clara Sandoval will attend to share their work and insights in the field.

In addition to hosting an event for our Alumni, Professors Michalowski and Sandoval and Dr Van Ho will speak at side events, focusing on issues arising from business operations in conflict-affected areas.

Professors Michalowski and Sandoval will address a side event organised by the Colombian Mission on the potential of securing accountability for business actors by that state’s Special Jurisdiction for Peace (JEP). They will join Roberto Vidal, a member of the JEP. This event, titled “Accountability of economic actors for grave human rights violations as part of transitional justice processes” will be delivered in English on Monday, 27 November from 11-12.30pm in Room VII at the Palais des Nations.

This year, Dr Van Ho will speak at a side event organised by Pax for Peace and Swedwatch on the controversial corporate merger and acquisition of Swedish company Lundin with Norwegian company Aker BP. The event is taking place on Tuesday, 28 November from 10:45-12:00 GMT (11.45-13.00 CET).

The remainder of this post will address the controversy of the Lundin-Aker case and information about our alumni gathering in Geneva.

Allegations of war crimes by Swedish company Lundin

Non-governmental organisations and victims have long alleged that Lundin was complicit in war crimes committed in Sudan between 1998-2002 (the location is now located in South Sudan following the state’s 2011 independence). Allegedly, Lundin asked the Sudanese military to ensure the security of their oil field with either knowledge or indifference that this would result in the commission of war crimes.

In 2010, Swedish prosecutors opened an investigation into the allegations. Under international law, statutes of limitations should not apply to war crimes. On 11 November 2021, Swedish prosecutors charged the company’s then-Chief Executive, Ian Lundin and its former vice president, Alex Schneiter, with complicity in those crimes. Both the company and the two men deny the allegations. After a challenge from Schneiter was denied by the Swedish Supreme Court, the case was scheduled for trial, which began earlier this year.

As Dr. Van Ho has previously discussed on the prominent international justice podcast Asymmetrical Haircuts, transnational criminal prosecutions of corporate executives for war crimes remain rare, despite a large number of significant and well-substantiated allegations against multinational corporations.

In 2014, Dr. Van Ho published her chapter on the rarity of successful corporate criminal prosecutions for human rights and humanitarian law violations in conflict-affected areas and oppressive regimes. Since then, the landscape of corporate criminal prosecutions has not significantly changed, making the Lundin case the most significant prosecution of corporate executives since the Nuremberg trials.

The 2014 piece was only one in a series by Dr. Van Ho exploring the responsibility of corporations for terminating and remedying human rights violations committed in the context of conflicts. She now has a grant from Open Society Foundations for a study into the business responsibility to remediate international crimes, including war crimes, and the standards businesses should apply when exiting a conflict-affected area.

The controversial acquisition by Aker

On 21 December 2021—approximately five weeks after the Swedish prosecutors announced its charges—Aker announced its acquisition of Lundin, to be carried out in three stages starting in July 2022. The merger allegedly leaves just enough assets to cover any criminal fines levied as a result of the prosecutions but would deny remedies to Sudanese and South Sudanese victims.

Those victims were expected to make civil claims against the company following a successful criminal prosecution, a common practice in civil law states that both reduces the potential of conflict civil and criminal judgements as well as the costs and risks victims must otherwise undertake themselves when litigating a civil claim against a large multinational company. The arrangements for the merger and acquisitions also appear to include a clause indemnifying Aker from any further claims brought against Lundin as a result of its actions in Sudan.

In other words: the acquisition appears to deny the South Sudanese victims of war crimes an opportunity to pursue their right to an effective remedy.

A Panel Discussing the Effort to Secure Justice

In response to the merger and acquisition, 8 South Sudanese and European NGOs have filed a complaint before the OECD National Contact Point in Norway alleging Aker BP failed to adequately conduct the human rights due diligence expected of the company under the OECD’s 2011 Guidelines for Multinational Enterprises.

Dr. Van Ho has a forthcoming book chapter, co-authored with Dr Eugenio Vaccari of Royal Holloway, on the need for human rights due diligence during corporate insolvency proceedings, a topic intimately related to the denial of remedies through corporate mergers and acquisitions. She has spoken with Dr Vaccari and others about the issue of remedies in corporate insolvency proceedings as part of the INSOL International podcast.

In Geneva, Dr. Van Ho will discuss the intricacies of this case, focusing on how the right to an effective remedy should factor into mergers and acquisitions and what both the prosecution and the OECD complaint should tell us about the state of corporate accountability in the context of conflict.

While in-person capacity in Geneva is limited, the event will also be live-streamed and you can register to attend the event here.

From Judgment to Justice: Discussing the Implementation of International Judgments on Socio-Economic Rights in Johannesburg

21 Nov 2023 / essexlawresearch / Leave a comment

**Dr. Casla’s visit to the South African Constitutional Court**

By Dr Koldo Casla, Senior Lecturer in Law and Director of the Human Rights Centre Clinic

In the first week of November, I participated in a workshop on advancing the implementation of positive rulings on economic, social, cultural and environmental rights. The event took place in Johannesburg, South Africa, and it was jointly convened by Amnesty International and the International Network for Economic, Social and Cultural Rights (ESCR-Net). Taking stock of the discussion, some of us also held a meeting of the steering committee of the working group on strategic litigation of ESCR-Net.

The event gave us the opportunity to talk about specific examples of what is working and what not in strategic litigation around the world, with a particular focus on cases from Africa (South Africa, Kenya, Gambia and Malawi), but also from India (workers’ rights and the right to food), Canada (right to health of undocumented migrants), Ecuador (land rights of Sarayaku indigenous people) and Spain (evictions in the private rental sector).

The team deliberated on strategic approaches to address the challenges posed by the uncertainties associated with litigation and its enduring consequences. Emphasis was placed on the critical role of civil society in spearheading the identification of concerns and the implementation of judicial decisions.

We had the privilege of visiting the South African Constitutional Court, possibly the most important national court as regards the justiciability of socio-economic rights globally. The building is full of symbolism appealing to values of transparency, culture and accessibility of justice. It is built on top of the remains of a brutal prison of the apartheid regime. Gandhi and Mandela spent time there. The location is a powerful message about learning from the past to build a more promising future founded on the principles of the rule of law and human rights.

*From the cells in the prison on Constitution Hill, where the Constitutional Court is located.*

The occasion was also an opportunity to express solidarity with the Ogiek indigenous people in Kenya. Some of the community leaders were present at the workshop. Despite several rulings from the African Commission on Human and Peoples’ Rights, the Ogiek have suffered repeatedly violations of their human rights, including further evictions from their ancestral land.

An action in solidarity with the Ogiek people of Kenya, who have suffered multiple evictions and other human rights violations, as documented by the African Commission and Court of Human and Peoples’ Rights.

At the event, I talked about the UN Committee on Economic, Social and Cultural Rights (CESCR) as a venue for strategic litigation on housing rights in Spain. The Optional Protocol on Economic, Social and Cultural Rights was adopted in 2008 and entered into force in 2013. It allows individuals to lodge complaints in front of the CESCR against States Parties for violations of socio-economic rights. To this day, 26 countries have ratified this treaty. Spain was the third country to do so, the first one in Europe.

More than 90% of CESCR decisions concern Spain, and the vast majority of them are about the right to adequate housing. One of the most significant cases is Ben Djazia and Bellili v Spain (2017), where the CESCR made two big contributions to international human rights law: firstly, it established that the proportionality test applies to the private rental sector as well as the public one; and secondly, it ruled that the State had breached the principle of non-retrogression because in the background of the eviction there had been a large-scale sale of some 4,000 social housing units by regional authorities in Madrid to transnational real estate investment trusts.

*Dr. Casla presented the* **Ben Djazia** *case at the workshop*

Since 2019, Spain’s legislation has been amended several times, and some of those amendments have brought to life some of the recommendations of the CESCR. Not all recommendations have been taken onboard yet; in particular, the issues of progressive realisation and the adoption of a national plan have not been given due consideration.

However, judges are now given the opportunity to look at personal circumstances (while not obliged to do so), and there is an expectation of coordination between the judiciary and social services before an eviction is executed (but not a specific timeframe or duties on public authorities). Housing laws at regional as well as central/national levels have created additional duties for large landlords over small landlords, which the CESCR considers part of the proportionality test (López Albán v Spain, 2019).

The experience of strategic litigation on housing rights in Spain has taught us some valuable lessons.

Firstly, sometimes human rights progress comes from non-human rights litigation. In the case of Spain, the first major court victory was the Aziz case (2013), where the Court of Justice of the European Union ruled that foreclosure procedures must give judges the chance to look for potential unfair terms in the contract, opening the door to a kind of proportionality test. This ruling was based on consumer law (EU 1993 Directive), not human rights law.

Secondly, recent legal developments in Spain are a reminder that parliaments can play a central role in the implementation of international human rights rulings. After all, hardly anything can beat securing a majority in parliament for human rights-friendly legislation.

Thirdly, recent developments also show that in federal or quasi-federal countries, regions can indeed learn from each other in a sort of laboratory for democracy. As I show in Chapter 5 of Spain and Its Achilles Heels, I would argue that this is precisely what happened between several of Spain’s regional legislative chambers between 2013 and 2017.

Finally, we must not make perfect the enemy of the good. Not all of the CESCR recommendations have been implemented in Spain. The situation is far from perfect. Even those that have been implemented have been implemented only to some extent. However, in the spirit of joyful advocacy, it is important to celebrate victories when they occur, including partial victories, even if we do not achieve everything we may hope for.

The Rwanda Plan is Unlawful, the Supreme Court Rules

16 Nov 202320 Dec 2023 / essexlawresearch / 2 Comments

The UK’s Supreme Court on Parliament Square, Westminster

The UK’s long-delayed and controversial proposal to deport asylum-seekers to the central African state of Rwanda was rejected by the Supreme Court on Wednesday 15 November 2023.

The Supreme Court unanimously dismissed the Home Secretary’s appeal and upheld the Court of Appeal’s earlier conclusion that “the Rwanda policy is unlawful”. This is because there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda. Lord Reed and Lord Lloyd-Jones gave a joint judgment with which the other members of the Court agreed.

The Supreme Court cited evidence by the UN refugee agency indicating Rwanda’s lack of adherence to the non-refoulement principle and raised doubts about the Rwandan authorities’ fairness of asylum claim assessments and human rights violations.

The Court made it clear that it was “not concerned with and should not be regarded as supporting or opposing any aspect of the political debate surrounding the policy”. However, its decision deals a blow to the government’s pledge to “stop the boats”, and with the Rwanda plan being at the centre of the recently passed Illegal Migration Act, a reassessment of asylum policies seems inevitable now.

In October 2022, the House of Lords International Agreements Committee published its 7th Report of Session 2022–23 on its inquiry into the Memorandum of Understanding (MoU) between the UK government and the government of the Republic of Rwanda for the provision of an Asylum Partnership Arrangement, citing written evidence submitted by Professor Theodore Konstadinides and Dr Anastasia Karatzia of the Essex Law School.

Prof. Konstadinides and Dr. Karatzia had questioned whether an MoU is an appropriate vehicle for the relocation of asylum seekers deemed to have arrived illegally in the UK, “especially given: (a) the implications it has for individual rights, and (b) the assurances and safeguards included in the MoU, particularly those relating to inspection and monitoring, a relocated individuals’ access to legal assistance, and data protection which give rise to legitimate expectations as to the other party’s conduct.”

The Research Visibility Team interviewed Prof. Konstadinides, co-director of the Constitutional and Administrative Justice Initiative (Essex CAJI) and academic lead for Public Law, to find out more about the Supreme Court’s ruling and its implications.

The Supreme Court’s ruling emphasised serious flaws in Rwanda’s asylum procedures. Could you elaborate on these shortcomings that led the court to determine it wasn’t a safe option for asylum seekers?

Removals to Rwanda, a practice established by the Home Secretary’s immigration rules, were held to be unlawful by the Supreme Court because of substantial evidence, including over 100 examples from the UN Refugee Agency, regarding Rwanda’s inadequate system of processing asylum claims. Rwanda’s poor human rights record and the lack of guarantees that upon arrival to Rwanda asylum seekers would have their claims properly examined by the respective authorities could result to further removal and repatriation where they would face a real risk of ill-treatment. The Supreme Court took this possibility very seriously despite the Home Secretary’s reassurance that Rwanda entered the deal in good faith.

There is a legal rule, or prohibition if you may, that refugees must not be returned to their countries of origin if their life or freedom will be under threat. This principle is known as ‘non-refoulement’ and it is a core principle of international law. Our colleague Prof. Geoff Gilbert is an expert in international refugee law and could tell you more about it. Suffice to say for now that asylum seekers are protected against refoulement by several international treaties to which the UK is a party including the UN Refugee Convention, the UN Convention against Torture and the European Convention on Human Rights (ECHR). As Lord Reid emphasised it is not, therefore, only the ECHR which is triggered here regarding the returning of asylum seekers in their country of origin without proper examination of their claims. The obligations under these international treaties are also reflected in our statute book for some time now, see for instance, the Asylum and Immigration Appeals Act (1993); the Nationality, Immigration and Asylum Act (2002) and, last but not least, the Human Rights Act (1998).

This explains in a way why the Supreme Court was unanimous that, once there are substantial grounds for believing that asylum seekers who are sent to Rwanda will be at real risk of ill-treatment or refoulment, there is only one way to decide this case.

The government is considering emergency legislation to declare Rwanda a safe country for asylum seekers, bypassing the Supreme Court’s judgment. What legal and political challenges might arise from such a move, and how could it impact the ongoing debate within the Conservative Party on issues like leaving the European Convention on Human Rights?

The government will try to negotiate changes and inject extra safeguards to the Rwanda deal. Of course, a revised or renewed deal cannot stop fresh litigation, especially challenges against the decisions of the Home Secretary made in light of such deal. Following the Court’s decision on the 16th of November, the Prime Minister expressed the will to use Parliament as a vehicle to reverse the Supreme Court’s unanimous decision.

If Parliament were to pass such legislation that would override the ECHR and the HRA (which gives the ECHR domestic effect) in relation to non-refoulment claims that would be the law of the land due to Parliamentary Sovereignty. But that would not be the end of the matter as far as international law is concerned: the government’s policy could still be in breach of international law. Also, as Lord Reid emphasised, the ECHR and the HRA are not the only relevant pieces of international and national legislation that protect asylum seekers from refoulment.

This takes us to your question about leaving the ECHR altogether, getting Parliament to repeal the HRA and either resuscitating Dominic Raab’s Bill of Rights Bill or relying on a combination of rights under the common law and statute and other international obligations that have found their way into our statute book. I don’t personally think it is a good idea to establish a record of treaty withdrawal every time we are unhappy with the outcomes that international law produces, although I worry that leaving the ECHR will become part of a future Tory Manifesto that has been flirting for some years now with the idea of repealing the HRA or “updating” it.

Unfortunately, this government has been too ready in its rhetoric to breach international law, albeit in a specific and limited way which is worrying in terms of the rule of law which requires compliance by the state with its obligations in both national law and international law.

Given the ruling on the Rwanda plan and its implications for the UK’s asylum policy, what do you foresee as potential avenues for the government to reconsider its approach? Could the quest for a new safe third country lead to similar legal challenges, and how might this affect the broader discourse on asylum processing in the UK and globally?

A new Bill that will, according to Suella Braverman’s response on X (formerly Twitter), “block off ECHR, HRA and other routes of legal challenge” is a legal fiction. As Prof. Mark Elliott (University of Cambridge) responded to her post, domestic legislation cannot just “block off” the ECHR, which the UK will still be obliged in international law to comply with for as long as it remains a member of the Council of Europe. Prior to legislation, a new treaty with Rwanda or another safe third country is possible, however. The Supreme Court, and the Court of Appeal before it, said explicitly that if there are no grounds for believing that asylum seekers who are sent to Rwanda or a third state for that matter will be at real risk of ill-treatment then the policy is sound and lawful.

The current memorandum of understanding between the UK and Rwanda provides some reassurance but being an expression of political will and not legally binding, it cannot be relied upon by asylum seekers. A treaty, however, can better protect such commitments, something that I initially argued with Dr. Anastasia Karatzia in our evidence to the International Agreements Committee of the House of Lords that got cited in the end. Following the judgment yesterday, the UK’s Prime Minister publicly stated that his government has been working on “a new international treaty with Rwanda” which will push to “ratify without delay” in Parliament and “will provide a guarantee in law that those who are relocated from the UK to Rwanda will be protected against removal from Rwanda”.

Some people, including myself, will still find this solution to the issue disappointing given Rwanda’s poor track record of human rights protection, judicial independence, and lack of adherence to the terms of similar agreements with other countries in the past, especially on non-refoulment of asylum seekers. However, yesterday’s judgment is a small legal victory insofar as the rule of law is concerned.

Unlike the initial memorandum that the government signed with Rwanda, a treaty will be subject to Parliament’s statutory role in scrutinising treaties as set out in the Constitutional Reform and Governance Act 2010. In the grand scheme of things, this may look like a small step. But let me remind readers that the UK-Rwanda memorandum was only published when it became operational on signature which left no space for any type of review or revisions by Parliament.

If the House of Commons passes a resolution opposing the ratification of a new UK-Rwanda treaty, it triggers an extra 21-day delay, preventing the government from proceeding with the ratification during this time. However, there is a catch: a minister has the authority to ratify a treaty without following this process, but this option becomes void if either House passes a negative resolution. Essentially, this represents a modest legal triumph.

Unlocking Urban Futures: The Role of Contracts in Contemporary Town Planning

15 Nov 202316 Nov 2023 / essexlawresearch / Leave a comment

On Thursday 14 December 2023, Dr. Edward Mitchell will deliver a lecture as part of the flagship Current Legal Problems lecture series, hosted by University College London’s Faculty of Laws.

Dr. Mitchell’s contribution to the lecture series and the accompanying volume will address the role of contract in contemporary town planning processes. Dr. Mitchell will argue that contract has the potential to work in town planning practice to offer administrative efficiency and secure binding commitments from landowners and developers. However, he will also explain that, while contract mechanisms often contribute to the successful performance of planning processes, there are significant gaps in the existing practice.

Interested readers can find more details about Dr Mitchell’s contribution to the lecture series, including booking details, on the Current Legal Problems website.

The Essex Law School Research Visibility Team had the opportunity to interview Dr. Mitchell about his research and his forthcoming contribution to the Current Legal Problems lecture series.

Could you explain, in simple terms, the role of section 106 agreements in the development of land and how they affect residential property development in England?

Certainly, section 106 agreements play a crucial role in shaping residential property development in England. Section 106 agreements are a type of contract used in town planning processes. Local authorities and property developers negotiate these contracts when a developer applies for permission to carry out a property development project. In the context of residential property development, these section 106 agreements operate as a set of contractual rules designed to regulate what developers do when they’re building new housing projects.

Let’s say that a property developer has purchased some land on the edge of Colchester and wants to construct 100 new homes on that land. That developer can’t start building those homes unless it has obtained permission to do so from Colchester City Council. Of course, a development of 100 new homes will increase demand for school places and healthcare services in the local area, as well as placing pressures on transport networks and existing open spaces. Consequently, Colchester City Council will probably not grant planning permission unless the developer agrees to provide or fund improvements to local infrastructure.

The purpose of creating section 106 agreements often relates to this infrastructure provision. These agreements should ensure that new developments benefit local communities in some way and do not place excessive pressure on local infrastructure, like schools, hospitals, transport networks, and so on.

Section 106 agreements seem to play an essential role in shaping the built environment. Could you provide one or two examples of how these agreements impact the places where people live?

There are lots of possible examples! Local authorities and property developers negotiate these agreements for most types of property development activity. For a large project with 1,000 new homes, a local authority may expect a developer to allocate 30% of these homes as ‘affordable’ housing, create substantial public open spaces, provide a site for, and fund the construction of, a new primary school and a community building, and to fund improvements to both the local transport network and local healthcare provision.

On the other hand, for a smaller development of around 15 new homes, a local authority might expect a developer to provide just 4 or 5 affordable homes, a small amount of public open space and a small financial contribution to a community resource (like a contribution to the maintenance of a village hall, or a local public swimming pool).

In other words, for developments big, small and somewhere in between, local authorities seek to use section 106 agreements to secure the delivery of these community benefits. Local authorities and property developers usually work out the details of these community benefits in section 106 agreements, which allows for a negotiated arrangement between the developer and the local authority.

In your research, you mention that the existing methods for affordable housing delivery in England cause instability and tension. Could you explain how these methods operate?

My research took place in the context of an acute shortage of safe, warm and genuinely affordable homes in England.

The Government defines ‘affordable housing’ as residential properties provided to occupants at below-market value, either through discounted sales or discounted rents. Current Government policy requires local authorities to set rules outlining the amount of affordable housing that developers should provide in new housing projects. Local authorities then use section 106 agreements in an attempt to secure the delivery of this affordable housing.

You examine the power dynamics visible in these section 106 agreements. Can you elaborate on how these dynamics influence the outcomes of affordable housing delivery?

My research argues that there is a one-sided power dynamic running through some section 106 agreements. I argue that this dynamic enables property developers to exercise significant control over affordable housing delivery, exacerbating pre-existing problems relating to a shortage of warm, safe and genuinely affordable homes.

This lopsided power dynamic arises because current affordable housing policy relies upon developers providing this affordable housing alongside private market housing in the projects they build. This affordable housing delivery method depends, therefore, on a developer being able to project a profit from a development project. If a developer concludes that providing affordable housing would undermine a project’s profitability, that developer might seek to negotiate a reduction in its affordable housing obligations before signing a section 106 agreement with a local authority.

These negotiations often lead to the creation of highly complex contractual arrangements in section 106 agreements. Moreover, and as noted in various mainstream media outlets, there is evidence suggesting that some developers have sought to manipulate these negotiations to secure significant reductions in the amount of affordable housing that local authorities expect them to deliver.

I argue that these outcomes are an inevitable product of a tendency to prioritise private profit-making over public housing need in current policy relating to affordable housing delivery.

You mentioned the complexity of the contractual arrangements governing affordable housing delivery. Can you share some specific examples of these complexities and how they affect ordinary people’s lives?

I’m interested in the way that any given section 106 agreement can appear to commit a particular property developer to a very specific course of action. For example, a local authority that receives an application from a developer for permission to build 100 new homes might agree to grant planning permission to that developer if that developer promises to provide 30 of those homes as ‘affordable’ housing. This might then lead to the creation of a series of complex clauses in a section 106 agreement, stipulating the deadline by which the developer must provide those affordable homes, and giving the local authority a right to enforce that commitment if the developer fails to fulfil it.

However, my research shows that the ostensibly prescriptive clauses in section 106 agreements relating to affordable housing can sometimes operate as part of a wider and sometimes hidden network of flexible contractual arrangements. My research offers a case study of three inter-linked development projects that illustrates how an intricate network of contractual arrangements can empower developers to choose not just when but also where and how they fulfil their public policy obligations.

Of course, it shouldn’t surprise us that, when local authorities rely on property developers to provide affordable housing, those developers will seek to create outcomes that are favourable to them. But my research provides new perspectives on opportunism and the pursuit of control in town planning processes and shows how developers can create flexibility even amidst highly formal contractual behaviour.

This affects ordinary people’s lives because it disrupts the equitable supply of safe, warm and genuinely affordable housing in our communities.

The government proposes to reform the existing system of developer contributions to the provision of affordable housing and other types of infrastructure in England. Is this reform welcome and could you elaborate on how this change might impact the contractual arrangements in section 106 agreements for affordable housing development?

In its 2020 White Paper, Planning for the Future, the Government proposed to reduce the role of section 106 agreements in town planning processes by implementing a new ‘Infrastructure Levy’. This new Infrastructure Levy will be a mandatory, nationally set land value-based flat rate charge that developers will pay to local authorities during the property development process. The Government has since taken these proposals forward in the Levelling-Up and Regeneration Act 2023, which received Royal Assent on 26 October 2023. The 2023 Act empowers the Secretary of State for Levelling Up, Housing and Communities to make regulations to facilitate the implementation of this levy. While the Secretary of State has not yet exercised this power, the prospect of doing so is an important legislative development.

The Government’s proposals envisage that local authorities will use the proceeds that the levy generates to fund the provision of affordable housing and other types of infrastructure that is needed in their communities. The idea is that this will improve the speed of town planning decision-making and provide both greater certainty and simplicity in town planning processes by removing the scope for negotiation that currently exists in affordable housing delivery.

Some reform of the current system for securing affordable housing does seem necessary given the current shortfall in provision. Research commissioned by the Government suggests that, in some property development settings, the Government’s proposals might generate greater developer contributions to local infrastructure provision and alleviate some of the complex and time-consuming negotiations that the current system causes. However, other town planning stakeholders question whether this proposal will either simplify town planning processes or provide more funding for affordable housing provision.

Moreover, the Government has acknowledged that section 106 agreements will still play an important role in securing developer contributions to community infrastructure needs. I’m interested in exploring this further in my next research project by looking beyond affordable housing to examine the other developer commitments commonly incorporated into section 106 agreements. If there is still a role for section 106 agreements, we need a better understanding of the way the current system operates. I think that we need to get inside the text of section 106 agreements to understand the possibilities that they enable and the problems that they create. By doing this, I think we’ll know more about the appropriateness of the use of contract to secure the delivery of vital public services.