Weekly Update – 1 October 2021

Dear Friends,
The Bingham Centre welcomes the initiative of the Scottish Government in setting out proposals to establish a public inquiry into the handling of the COVID-19 pandemic in Scotland.  

In this week’s Update we share our submission on the scope of the Scottish inquiry, in which we emphasised that it should examine Rule of Law issues.  We also bring you news of an inquiry submission on Closed Material Procedures, our public engagement activities in schools, publications on European Rule of Law developments and the latest funding calls advertised by the Modern Slavery and Human Rights Policy and Evidence Centre, which the Bingham Centre leads.

The Rule of Law and the Coronavirus pandemic

First Minister Nicola Sturgeon speaks at a Coronavirus briefing
The Scottish Government is currently consulting on the terms of reference for a proposed public inquiry into the handling of COVID-19 in Scotland. This week, our Research Fellows, Katie Lines and Dr Richard Mackenzie-Gray Scott, made a submission recommending that the inquiry consider both the extent to which the Scottish Government's response to the COVID-19 pandemic complied with the Rule of Law and principles of good governance; and how the Rule of Law and good governance can best be secured in future public health emergencies.

In their submission, Katie and Richard, argue that the inquiry should consider parliamentary scrutiny of coronavirus legislation; transparency of scientific evidence; clarity of coronavirus legislation and Government messaging; the necessity and proportionality of measures adopted to address coronavirus; and impacts of the pandemic on the court system and access to justice. These are themes that the Bingham Centre has frequently discussed in relation to the UK pandemic response through our Rule of Law Monitoring of Legislation project, and our UKRI-funded project on The Role of Good Governance and the Rule of Law in Building Public Trust in Data-Driven Responses to Public Health Emergencies.

Security and the Rule of Law
Earlier this year Dr Lawrence McNamara, Fellow of the Bingham Centre for the Rule of Law and a Reader in Law at the University of York, submitted a joint response to Sir Duncan Ouseley's review of the use of Closed Material Proceedings (CMPs). The submission has just been published on our website. Building on the Bingham Centre's project “Opening Up Closed Judgments: Secrecy, Security and Accountability", the submission sets out the serious Rule of Law concerns that CMPs continue to raise.

The submission puts forward 14 substantive recommendations for reform to the current framework and procedures to ensure increased compliance with Rule of Law standards, particularly natural justice, open justice and equality of arms. The recommendations include improved transparency in the recording and reporting of cases where CMPs are used; a prohibition on destroying CMP related judgements; the development of a system for periodic review to determine whether  these judgements can (either fully or in part) be made open if publication would not pose a risk to national security.

Citizenship and the Rule of Law
The right to protest is a fundamental requirement of participatory democracies. This was one of the themes of a talk given by Michael Abiodun Olatokun, our Research Leader in Citizen and the Rule of Law to undergraduate students at Goldsmiths University, this week. Michael’s talk explored the origins of the right and went on to examine trends in recent case law including the Jones (Extinction Rebellion) and Ziegler (international arms fair) cases. Michael argued that the jurisprudence of the European Court of Human Rights is not sufficient to protect the right to protest in the UK, and that citizens must lobby their politicians to introduce additional safeguards where it is under threat. This talk was an adaptation of a paper that Michael wrote for Justice Week 2020, available here.
Public and Youth Engagement programme training via Zoom
The Public and Youth Engagement Programme is the latest initiative of the Bingham Centre designed to equip 16-18 year olds with the knowledge, skills and confidence to deal with law-related issues in their lives. It involves young lawyers delivering interactive democracy workshops in schools in order to help pupils to engage with politics. The Bingham Centre team responsible for this programme, Michael Abiodun Olatokun and Michelle Kamya, delivered the first of its training sessions on Wednesday via Zoom and further sessions are planned for volunteers from around the country.
Europe and the Rule of Law
Dr Oliver Garner, our Maurice Wohl Research Fellow in European Rule of Law, contributed a chapter on “Justice and Home Affairs” to The Law & Politics of Brexit. Volume 3. The Framework of Future EU-UK Relations, edited by Federico Fabbrini, which was published by Oxford University Press this week.
In his chapter, Oliver argues that the new security arrangements between the EU and the UK move away from the paradigm of legal supranationalism towards diplomatic relations. The chapter also considers the suspension mechanisms if either Party undermines the Rule of Law and fundamental rights. A working paper version of the chapter can be accessed here.

The Bingham Centre is one of 18 partner organisations participating in a Horizon 2020 EU-funded project, ‘Reconciling Europe with its Citizens through Democracy and the Rule of law’ (RECONNECT). Along with the University of Leuven, we are responsible for the project blog.
Recent blog posts have included:
- ‘Authority, Legitimacy and Rule of Law in EU Migration Policy’ by Julinda Beqiraj of the Bingham Centre, Katri Gadd and Barbara Grabowska-Moroz. In a context of hardening attitudes towards immigration and public concerns revolve around security threats, the authors argue that compliance with Rule of Law standards legitimises migration policies, as well as their implementation by domestic authorities.

- ‘The EU’s Face in Łukašenka’s Mirror’ by Dimitry Kochenov and Barbara Grabowska-Moroz examines the situation of Afghan refugees at the Polish-Belarusian border, arguing that their lack of access to food, water or medical aid amounted to cruel and inhuman and degrading treatment contrary to Article 3 of the ECHR.

- ‘Democracy, the Rule of Law and Terrorism: What is the Relationship between governance conditions and terrorist threats?’ by Asif Evrat, Sivan Hirsch-Hoefler and Amichai Magen considers a wide range of perspectives on how democracy and the Rule of Law affect terrorist threats and their handling by governments.
One of our Research Fellows in the Rule of Law who focuses on the RECONNECT project, Dr Daniela Nadj, was interviewed by Christian Science Monitor for an article Journalist's slaying: Have Dutch values fostered a crime problem?, in the wake of the killing of Dutch investigative journalist Peter De Vries in a suspected assassination by organised crime. Daniela described the Netherlands as “an open society with strong rule of law,” and argued that despite the assassination it “will remain a very liberal society, proud of its constitution, but bound by international law and very much aware of its place in the world.”
Modern Slavery and Human Rights Policy and Evidence Centre
Five new calls for research proposals
The Modern Slavery and Human Rights Policy and Evidence Centre (the Modern Slavery PEC), which is led by the Bingham Centre, has announced five new calls for research. The announcement includes four responsive research calls on subjects such as evaluating the provision of distributed technology to adults with lived experience of modern slavery, accessing legal advice for survivors, identification of survivors, and establishing visibility over long and complex business supply chains. The Centre also pre-announced an open call for research on the links between modern slavery in the UK and wider laws and policies. You can read the full story and details on the Modern Slavery PEC website.
If you have found this Update useful we would be grateful if you would forward it to those in your network who you think might be interested in the activities of the Bingham Centre, and encourage them to subscribe by clicking on the link below.

Murray Hunt
Director, Bingham Centre for the Rule of Law
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