Impact case study database

Advancing public knowledge and understanding

Barnard used a variety of formats (townhall events, podcasts, vodcasts, blogs as well as a film) to chart what the UK public wanted out of Brexit in respect of migration and to contribute to improved public understanding of Brexit-related issues. Prior to the 2016 referendum, she was involved in numerous ‘town hall’ and ‘Question Time’ style events (Norwich 27.01.16; Exeter 25.06.16; Aylsham 4.05.16; Spalding 23.05.16; Canterbury 31.05.16 and Belfast 07.06.16); a panel discussion at UCL, ‘Brexit Divisions II’ 22.03.16; and a students’ mini-referendum and quick response event). The vodcast ‘What would Brexit mean for free movement?’ had over 11,000 views. See [S1] for further details of all the above.

Barnard also undertook extensive media engagement (see [S2], with details of over 700 interviews). These included: interview on immigration, BBC Trending/Google Trending, Nottingham (16 June 2016); interview with Time Magazine about the migration crisis (3 June 2016); interview with Sky News on migration and deportation (2 June 2016); interview, ITV News at 10 about migrant rights (1 June 2016); ‘Migrant workers – lessons from the research – and round table with EU migrant workers in the UK’, Radio Cambridgeshire (31 May 2016); interview in International Business Times, New York, on Brexit and free movement (18 May 2016); free movement of workers in the agriculture sector, Farmers Weekly (6 May 2016); Migration and the EU, interview with LBC/Heart FM, (29 April 2016); Brexit and migration, ITV news, (13 April 2016); would Brexit make it harder to hire EU workers?, The Guardian, (30 March 2016); World at One, interviewed on immigration and changes introduced by renegotiation deal (20 Feb 2016). See [S3] for details of media impacts. These engagements drew directly on Barnard’s migration research (in particular [R4], **[R5]**).

Extensive public engagement continued after the referendum. On 22 May 2017 she made a launch of a report and film on public attitudes in the aftermath of the 2016 vote. She took part in the Citizens’ Assembly on Brexit, 9-10 Sept 2017, organised by UCL’s Constitution Unit, which involved working closely with EU nationals contemplating the future of migration. The demographically mixed audience voted in favour of limited controls on migration. It was followed up by a briefing session for MPs in Westminster 13 Dec 2017, discussed by Polly Toynbee in the Guardian ( **[S4]**).

Barnard also appeared on television ( Question Time, BBC Breakfast) and radio ( Any Questions, Brexit for the Perplexed, Law in Action, the Today programme, The World Tonight, World at One and regularly on 5Live). Examples of work in the print media include: Prospect, 2 Nov 2017, interviewed and featured in ‘Can Britons keep their citizenship after Brexit?’; Economist, 12 Apr 2017; briefing discussion with Anushka Asthana, Guardian, on citizens’ rights, 26 June 2017; briefed and was cited in ‘Would Brexit Violate EU citizens’ rights’, EU Reality Check, BBC, 4 July 2016); NS interview with John Humphrys on Today and BBC World; interview on Channel 4 News’ special programme on migration post Brexit with Krishnan Guru-Murthy, 22 June 2018. The Public Policy Editor at the Financial Times describes in his testimonial how he has ‘often relied’ on Barnard to inform his reporting in much of his coverage of Brexit ( **[S4]**). In addition, the BBC Political Correspondent for the World Service has added on air and in correspondence that he and many other journalists are hugely in debt to Barnard for her willingness to share her expertise and learning, a willingness the Correspondent refers to as a ‘public good’. [S5]

Barnard launched her own podcast @2903cb, made further podcasts with UKICE, and participated in University of Cambridge’s Talking Politics podcast (REF2021 case study being submitted to UoA19).

From a listener to the 5Live, 22 Jan 2019: ‘ …I just wanted to say how helpful I found your explanation of the Brexit options on the Emma Barnett programme this morning. I’m just the man on the Clapham Omnibus. So nice to have things explained, not simplistically, but clearly.’ [S5]

Briefing policy makers

Barnard used research findings [R4, R5, R6, R7, R8] as well as her broader expertise in EU law [R1, R2] to advise and brief a range of politicians and civil servants, from the UK and EU, on legal aspects of the Brexit process. This included briefings to MPs in the SNP, Conservative Party, the Labour Party and the Liberal Democrat Party (see **[S6]**). She briefed a core group of Conservative MPs, on the day of the meaningful vote, on ‘What is a Customs Union?’; briefed Rory Stewart MP on the differences between a customs union and a free trade area; worked with House of Commons library staff and MPs on the impact of ‘no deal’; gave evidence to select committees, including the inaugural meeting of the Brexit select Committee, the Home Affairs Select Committee and the Treasury Select Committee; briefed the EU’s Taskforce on Article 50 negotiations with the United Kingdom (TF50, led by Michel Barnier) and German Chancellor Angela Merkel’s Brexit team in Berlin on the politics and policy of withdrawal from the EU in the UK; briefed the Cabinet Office and the Foreign Office on the European Union (Withdrawal) Act 2018, the Home Office on migrant rights, and the Department of International Trade on GATS; gave confidential briefings to the Bill team on the early text of the EU(W)Bill; and took part in the Bingham Law project, led by Dominic Grieve MP, briefing, inter alia the Solicitor General on how the EU(W)Bill could be improved.

Feedback and reports from government officials indicate that Barnard’s work had tangible impacts on Brexit debates. A blog post on the problems of putting a definite Brexit date in the legislation was picked up and cited extensively by the Duke of Wellington in the House of Lords and led to an amendment (which was then partially reversed in the Commons). Evidence given to the Justice Select Committee was cited by Baroness Ludford in further debates on the EU(W)B ( **[S7]**).

Barnard worked directly with parliamentarians on what a future UK migration policy might look like. She gave evidence to the House of Lords Select Committee (Justice and Home Affairs) on Brexit, human rights, free movement of persons, and alternative remedies, on 2 November 2016. The report was published and featured in the Guardian which referred to evidence Barnard gave. She gave evidence to the House of Lords Internal Market Select Committee on GATS, 20 October 2016; to the House of Commons Home Affairs Select Committee, on the alternatives to free movement of persons with Mats Persson, 27 February 2018; and to the House of Lords European Affairs Select Committee and Justice Committee on the current state of play and the parliamentary infrastructure necessary for scrutiny post Brexit, 22 January 2019 ( **[S8]**).

Barnard briefed a number of MPs on migration issues pre- and post-Brexit. She was instructed to draft advice for Ian Murray MP when considering an amendment to the Customs Bill (11 July 2018), having already been involved in working on and drafting the EU Citizens Right to Stay Bill prior to its first reading 12 July 2016 [S2 p. 49]. She also wrote a briefing for Yvette Cooper MP, Chair of the Home Affairs Select Committee, on options available under the EU Citizens Rights Directive. She worked with Peter Hain on the drafting of questions to government ministers on migration; for the government’s non-response see. On 2 July 2019, the House of Commons European Scrutiny Committee opened an inquiry into post-Brexit scrutiny of EU law and policy and what changes would be needed to the current scrutiny system, once the UK was no longer involved in EU decision-making. Barnard was called as one of the first witnesses before the committee. [S10]

Barnard briefed Hilary Benn MP, Chair of the House of Commons Select Committee on the Future Relationship with the EU (formerly the Select Committee on Exiting the EU), on a number of occasions. She advised him on the drafting of an amendment to the Withdrawal (Amendment) Bill on 22 October 2019, spoke to an adviser to his Select Committee adviser on Brexit and higher education on 3 April 2017, and gave a keynote speech to an All Party Parliamentary Group dinner on 30 October 2017 [S2 p.47, 54, 65]. Hilary Benn writes in a testimonial:

‘Professor Barnard has made an important contribution to the work of the UK in a Changing Europe project which has been immensely valuable to me as Chair of the [Select Committee] and to the Committee’s consideration of the many complex issues raised by Brexit, including migration and interpretation of treaties and EU law. We have greatly benefited from Professor Barnard’s testimony in front of the Committee. The fact that she has appeared before us on so many occasions is a testament to her in-depth knowledge and her ability to explain complex issues. I also know from the Committee’s team of clerks how valuable they have found the opportunity to share thoughts and ideas with Professor Barnard’. [S9]

Barnard also engaged widely with civil servants on migration issues. She contributed to a private roundtable with DExEU/Home Office civil servants on the future of immigration policy (17 July 2018). She gave a number of invited lectures on migration, including to the Bank of England law and policy teams and to the Bank of England legal team on the Withdrawal Agreement and citizens’ rights and dispute resolution. [S2 p. 49] In response to a lecture she gave to the Home Office Legal Advisors on migration policy: ‘ We have received great feedback from colleagues on your session. You managed to bring great clarity and authority to a really complex set of issues’. (Home Office Legal Adviser and Director General Legal Services Directorate C, Government Legal Department **[S11]**). Barnard was also involved in a private briefing with officials on the Immigration White Paper.

In addition, Barnard has been sought out to talk on the future of migration policy to audiences outside the UK. She made presentations to the EFTA Court, the FIDE conference, the European Law Academy (see [S1] for details).

Based on his research, Bartels has had a significant impact on the UK’s Brexit trade negotiations; informing several hundred government officials and the wider public (Bartels has over 9,000 Twitter followers and his Parliamentary appearances are often broadcast publicly) around the technical and legal aspects of the new arrangements that will be required and analyzing their legal implications. This has led to greater understanding by policy makers and enhanced skills and capacity of the executive in a very specialized area at a crucial time for policy makers and others in official capacities.

Supporting parliamentary and government committees through official appointments and expert evidence

During late 2016 Bartels was invited to give evidence as part of an expert panel to the House of Commons International Trade Committee. As a result of his expertise and also ‘ ability to communicate with [committee members] as lay people in an intelligible and accessible manner’. Bartels was appointed as the first Specialist Adviser to the Committee, helping to produce the Committee’s first report, UK Trade Options Beyond 2019. [ E1] The report set the framework for a series of further reports, and early in the Brexit process, was a point of reference for those (including MPs) grappling with a set of new and complex issues. In this capacity Bartels ‘ helped to plan and conduct the inquiry, which involved selecting themes and witnesses […33], as well as advising on areas of questioning for nine oral evidence sessions.’ He provided regular face-to-face briefing to the committee so that they were ‘ able to make the best use of the witnesses appearing’ and ‘assisted in digesting and analyzing 46 written evidence submissions’. [ E1] At the end of the inquiry, Bartels assisted in ensuring that the report was ‘ factually accurate in respect of any matters relating to trade law’. According to the chair of the committee, ‘ Dr Bartels worked closely with the Committee staff, both helping them to assist the Committee and significantly raising their level of understanding … in relation to trade law … and ‘providing assistance to staff on other committee teams who were dealing with aspects of Brexit that were relevant to trade law’. [ E1]

Bartels was invited to give expert evidence to several parliamentary committees, including the UK House of Commons Committees on International Trade (2018, 2019 and 2020), Exiting the EU (2018), and Public Bills (2018); UK House of Lords Subcommittee on Financial Affairs (2019); UK Joint Committee on Human Rights (2019); and Scottish Parliament Committee on Culture, Tourism, Europe and External Affairs (2019). His testimony was broadcast on the UK Parliament TV website, and gained a significant audience, and it was quoted in the Committee on Exiting the EU’s report The future UK-EU relationship [ E2 pp. 14, 17 and 18] and International Trade Committee’s report UK-US Trade Relations [ E3 pp. 25 and 26]. The chair of one of these committees said that ‘ in his evidence he greatly clarified for us the trade-law implications of possible arrangements to avoid a hard border on the island of Ireland as a result of Brexit’, and, in relation to another appearance as witness in July 2019, that he ‘ considerably enhanced our understanding of the trade-law issues around the possibility of a “no deal” Brexit occurring at the end of October 2019’. ‘ In conclusion, the Committee’s level of understanding and the quality of its output has undoubtedly been much enhanced by his involvement’. [ E1]

On more than one occasion, Bartels’ testimony was the basis for questions to other subsequent witnesses in parliamentary committee inquiries, including then Minister for Exiting the EU, Mr David Davis [ E2 p. 14]. His work [ R5] was cited in parliamentary proceedings [ E4 p. 21].

In 2019 Bartels was appointed to the UK Government Technical Advisory Group on alternative arrangements to the Northern Ireland ‘backstop’. This was an advisory committee chaired by a UK cabinet minister, and its meetings were also attended by other ministers, including at cabinet level. Bartels was the only generalist trade lawyer appointed to this group, and he contributed to finding a means of facilitating trade in goods across the border [ E5].

Bartels also contributed to professional and industry bodies in order to provide expert, independent advice on the development and delivery of UK trade policy to government. Since 2019 he has participated in the Professional Business Services Expert Trade Advisory Group, organized by Deloitte, at which civil servants give regular briefings on Brexit preparations and receive input from the professional services industry. In this capacity Bartels authored a report on the UK’s ability to export legal services to the EU in a ‘no deal’ scenario. He was also a major contributor to policy notes produced by the Law Society (on customs unions) and the Financial Markets Law Committee on other aspects of government trade policy [ E6]. He also sits on the consultative group on Business and Professional Services (Deloitte Trade Technical Group ‘MMWG’, an industry/government forum).

‘Lorand Bartels’ research on WTO law and policy is the most frequently cited work that I have seen in internal working documents. This has made an important contribution to the development of policy across a number of Government Departments particularly as it concerns the development of WTO schedules of concessions and commitments’ (statement from permanent civil servant, UK department for International Trade, May 2019) [ E7].

Use of expert analysis by UK government in trade negotiations

Expert analysis by Bartels has had a major impact on the formulation of UK Government policy on its position in the WTO in the immediate aftermath of Brexit. The current UK government’s policy on its WTO ‘schedules’ of trade concessions has followed the analysis presented in [ R4] extremely closely: *‘As the UK’s Ambassador to the WTO during this period, I can confirm that [ R4] was highly influential in shaping our policy response. I first came across the article on Twitter, and promptly circulated it to colleagues in the UK Mission in Geneva and Whitehall … It is fair to say that it shaped the policy for our transition in the WTO agreed by the Cabinet in October 2016, and remains our policy today’.* [ E8]

Training government officials

Since 2017 Bartels has been academic director of the Linklaters Trade Institute, established to train UK civil servants under contract with the UK Foreign and Commonwealth Office’s Diplomatic Academy, which has responsibility for training UK trade negotiators. Bartels has had oversight of content and together with Linklaters project managers and partners, delivery of training on all aspects of free trade agreements as well as negotiation skills for which he drew significantly on the material contained in [ R2-R6]. Training was delivered in 13 separate four-day modules from 2018-2020 to over 500 civil servants, including FTA ‘chapter leads’ and chief negotiators [ E9]. The Dean of the FCO’s Trade Policy and Negotiations Faculty, has stated that:

‘The impact of this expert programme, steered by Bartels, has been considerable. Over 500 civil servants are now prepared for frontline trade negotiations and have increased their awareness of the implications of policy choices. … [H]is session for Chief Negotiators on the use of law during a trade negotiation was taken up by the Chief Negotiators for the UK’s future trade negotiations with the EU, US and other countries.

Bartels’ extensive knowledge of trade policy and law has had a uniquely significant and positive impact on the way UK civil servants prepare for and conceive of trade policy and negotiations” [ E9] .

Another civil servant states that ‘[the programme] has provided the platform for policy debate and formulation in the trade sphere and ensured that the required level of expertise was acquired rapidly and effectively. The material developed has been subsequently reused in different ways for different cohorts of policy makers. Lorand was central to this programme not only putting faculty together but developing materials and delivering much of the content. It was a major milestone in the establishment of the Department for International Trade.’ [ E7]

Increasing understanding and learning about UK trade relations

Bartels has been heavily engaged in disseminating his knowledge about and research on the UK’s trade relations in various fora. [ R4] is the only treatment of one of the foremost issues in both substantive and public debates around Brexit; namely, the legal nature of a ‘standstill’ FTA in the event of a hard Brexit. The paper was cited in a UK House of Commons Library Briefing, ‘No-deal Brexit and WTO’, which had wide circulation, and was picked up for discussion by experts in a session of the UK House of Commons Committee on Exiting the EU at which he was not present (Oral Evidence, The progress of the UK’s negotiations on EU withdrawal). Building on this, and to illustrate the point practically, Bartels wrote a short ‘one-page’ FTA to show what is required at a minimum by WTO law and to refute notions that ‘GATT 24’ (as it has become known) can be unilaterally invoked by the UK. This exercise had a dramatic impact on public debate, as shown by the attached graph, which shows the increasing number of citations of the phrases GATT 24 and Article 24 in thirty-two UK media outlets, Hansard, Twitter, and Facebook over the period from Jan 2017 to Jun 2019. [ E10]

Since the Brexit referendum Bartels has provided expertise on trade law for journalists and commentators and is regularly quoted. In a piece entitled ‘Brexit and the issue of the WTO schedules’ (28 February 2017), the Financial Times correspondent and senior legal practitioner David Allen Green refers to the use of Bartels’ work [principally R1] by the UK Ambassador to the WTO as well as referring directly to Bartels’ work on the obligations of WTO members and necessity of WTO renegotiation following Brexit. He states that ‘As Cambridge trade law academic Dr Lorand Bartels explains (in the fascinating comments under that post by Mr Braithwaite [UK Ambassador] – some of the best “below the line” comments I have seen on any post): The other 163 WTO members do not have a veto of the UK’s scheduled commitments’. [ E11] Green goes on to directly reference further work by Bartels in the article.

In a testimonial, Tony Connolly, the Brussels-based Europe Editor for the Irish broadcaster RTE, states that ‘I've found Lorand's writings and social media contributions absolutely invaluable in providing an immediate, accessible, and understandable guide to whatever issue involving world trade which the Brexit machine has spun into the foreground. The role that Lorand plays has been vital in equipping journalists like me with knowledge that can refute, or support, a particular claim by one side or another’. [ E12]

It is vital for international organisations and national governments to have reliable data on labour laws and a solid evidence base for assessing their social and economic impacts. The CBR dataset was designed to meet these needs. Through direct collaboration by the Cambridge team with agencies and governments and through the wider use of the index by, and its growing reputation within, the research community, the dataset is having a tangible impact on labour market policy making. In particular, its use is strengthening the case for labour law reforms targeted at reducing inequality and promoting worker voice while maintaining sustainable economic development. This change is reflected in the policy position taken by global and regional-level agencies, in the advice they give to national governments, and in the implementation of reforms at national level.

(i) Co-production with the ILO, 2014-15

The CBR-LRI dataset was extended from an initial five countries in 2007 to over 60 countries in 2014 in collaboration with the International Labour Organization (ILO), a UN agency with a global remit to raise labour standards and promote inclusive growth. The results of the collaboration were published in Chapter 4 of the ILO’s flagship World employment and social outlook report in 2015 (ILO, 2015). The chapter ‘builds on the ILO’s consideration of how labour regulation – considered as a labour market institution – can contribute to equitable and sustainable development’. It describes the CBR-LRI as ‘a rich new dataset’ (ILO, 2015, p. 111), and ‘uniquely detailed and comprehensive’ (ILO, 2015, p. 112). Analysis of the dataset by ILO economists concluded that ‘if carefully designed, employment regulation can provide protection to workers in different types of employment without harming job creation’ (ILO, 2015, p. 122). [E6]

The Head of the Labour Law and Reform Unit at the ILO since 2015, writes in a testimonial:

‘The ILO has collaborated closely and to very good effect with the CBR over a period of some years. At different times the ILO has provided facilities and also funding for the development of the CBR Labour Regulation Index. The 2015 World Economic and Social Outlook, the ILO’s flagship publication on the world of work in global perspective, made use of the dataset to show the overall generally positive effects of labour regulation in the long run for development, among other things’ [E1].

(ii) Knowledge exchange with the Asian Development Bank, 2017-2020, and the OECD, 2019-2020

In 2017 the Cambridge team was approached by the Asian Development Bank (ADB) for assistance with a report being prepared on the relationship between employment protection laws, productivity, and employment. The ADB is a regional agency with a developmental remit which includes advice and knowledge transfer. ADB officials used CBR data to prepare an internal working paper (Ranjan et al., 2018 **[E2]**) and a chapter in the ADB’s flagship publication, the Asian Development Outlook 2018 (Asian Development Bank, 2018, **[E3]**) .

The ADB official who commissioned the CBR data, has written in a testimonial: ‘for any analysis of labor regulations, I think the CBR LRI database is an indispensable resource. We found the CBR LRI database very useful for the purpose of comparing labor regulations across countries and over time’ [E4].

In 2020 the CBR received a further request for data from the ADB, this time for an updating of the dataset to cover a number of countries for the years 2013-2020. The updating was completed in September 2020.

In July 2019 and November 2020 Deakin participated in workshops organized by the OECD to discuss labour market data. The OECD is an intergovernmental agency charged with promoting economic policy coordination and information exchange. The OECD invited Deakin to offer advice on the updating of Professor Jelle Visser’s index on collective bargaining over wages and conditions of employment, which relies significantly on data collated in the CBR index for certain of its categories (Visser, 2019 **[E5]**).

(iii) National-level knowledge exchange and influence over labour law reforms

Labour law reform has for some time been a major issue in several Latin American countries. After he gave a keynote lecture at a regional labour law congress in Lima in 2016, Deakin was approached by the Peruvian Ministry of Labour for republication of the work on the basis that it contained ‘several ideas that would be useful to improve the Peruvian reality’ (testimonial from an official in the Ministerio del Trabajo y Promoción del Empleo, Lima, 2018 **[E7]**). In 2020 Deakin was due to give a series of lectures at the University of the Republic (Uruguay) and to meet labour market policy makers and stakeholders in Montevideo; this visit was postponed because of the Covid-19 emergency but will take place at the earliest opportunity.

East Asia is another context in which labour law reform is under active consideration. In 2015 and 2016 Deakin discussed labour law reform at meetings of the Chinese Academy of Social Sciences in Beijing. In 2015 he visited Hanoi and Ho Chi Minh City to present a report to labour ministry officials and senior judges on reform of the Vietnamese labour laws and labour court system. In 2019 the Vietnamese authorities announced a major reform of laws governing freedom of association. The ILO provided advice to the Vietnamese government, using the IRLex index to carry out impact assessments. Dr. Chang-Hee Lee, who collaborated with Deakin and Bishop in the construction of IRLex and later became the Director of the ILO office in Vietnam, has written in a testimonial:

‘The National Assembly adopted a revised Labour Code in November 2019, which brings fundamental changes to the ways industrial relations would function, as it brings new rights of freedom of association at enterprise level, with strengthened provisions on collective bargaining. Throughout the process of the revision which began in 2016, IR Lex was actively used whenever drafters of the government and National Assembly wanted to know about comparative information on certain legal provisions on IR (registration of unions, most representative union status. unfair labour practices, for example). ILO was able to provide almost immediate response to request of the drafters, and some drafters who have English capacity accessed directly to IR Lex. IR Lex index has been highly instrumental for drafters who have to prepare and submit the impact assessment report to the legislature. It truly helped the complicated process of labour law reform in Viet Nam’ [E8].

The onset of the Covid-19 emergency put labour law reform in the spotlight in several countries. In September 2020 Deakin was approached by stakeholders in South Africa for feedback on data contained in the CBR index relating to the economic impact of dismissal laws. In October 2020 he was contacted by European-level trade unions interested in using the CBR’s methodology to track changes to labour laws in EU countries in response to the Covid crisis.

The research led by Fenton-Glynn and Scherpe has directly informed the recent joint recommendations on surrogacy law reform by the Law Commission of England and Wales and Scottish Law Commission, as well as the work of the UN Special Rapporteur on the Sale and Sexual Exploitation of Children, who in July 2019 published a report on the protection of the rights of children born through surrogacy arrangements.

The research has reached the wider international community of stakeholders, including academics, legal practitioners, judges, law reform bodies and international organisations, as well as, through media coverage, surrogates and intended/surrogate parents.

The regulation of surrogacy is a particularly sensitive issue, and fast progress in this area is not to be expected. The research carried out by Fenton-Glynn and Scherpe has improved public and official understanding of the complex global issues involved in regulating this practice, and clarified the options for policy makers, and directly informed the content of the law reform process in the UK.

Impact on the Law Commission of England and Wales

The Law Commission of England and Wales had a close relationship with the research from the beginning. Members of the Law Commission had already accessed work by Fenton-Glynn [R1], [R2] at the initial stage of considering whether to take on a project on surrogacy. They attended the international conference organised by the researchers in Hong Kong in September 2016, on

‘Eastern and Western Perspectives on Surrogacy’. A testimonial provided by the, Law Commissioner, Law Commission of England and Wales, reports that this conference was found ‘ to be very useful in understanding the different ways in which surrogacy might be regulated, and in gaining a much deeper appreciation of its global context’ [S3].

Scherpe and Fenton-Glynn subsequently provided a response [R3] to the Law Commission’s 13th Programme consultation ‘Surrogacy: Is the law governing surrogacy keeping pace

with social change?’. The Law Commissioner reports in his testimonial that this response ‘ helped inform our thinking about the current problems with the way in which the UK law is framed and its interaction with the global practice of surrogacy. Dr Fenton-Glynn’s article ‘International Surrogacy before the European Court of Human Rights´ [R4] was also helpful in this regard.’ [S3].

Following the consultation, the Law Commission made the decision to include the issue of surrogacy in its next programme of reform. Representatives from the Law Commission attended all subsequent events in the project including the joint conference with the European Academy of Law (the leading provider for practical training to practitioners in Europe) on Law and Practice of Surrogacy (Cambridge, 2018). In July 2019, the England and Wales Law Commission, in conjunction with the Scottish Law Commission, published their proposals for law reform. The edited collection [R5], as well as individual papers written by Fenton-Glynn, was cited extensively in their joint Consultation Paper, which contains proposals for surrogacy reform in the United Kingdom [S1].

The Law Commissions’ proposals for surrogacy reform include the introduction of a new system of laws surrounding surrogacy, based on the assessment of surrogacy arrangements before, rather than after, birth, building directly on Fenton-Glyn’s research. They envisage the removal of the requirement of a genetic link between the intended parents and the child, where medically necessary (in the new pathway, and potentially for all domestic arrangements; genetic link still required for international arrangements). This builds directly on [R3] and [R5]. For international surrogacy arrangements, the Law Commissions recommend provision for recognition of legal parenthood across borders, where appropriate, to help those who have had a surrogate child overseas to bring the baby into the UK. This proposal builds on [R4] and [R5].

According to the Law Commissioner for England and Wales:

‘The book emanating from the conference, Eastern and Western Perspectives on Surrogacy,

edited by Professor Scherpe and Dr Fenton-Glynn, proved an invaluable resource when

preparing the consultation paper. It provided an overview of approaches to surrogacy across the

globe, signposted to further comparative law resources and allowed us to consider surrogacy law in jurisdictions about which it would otherwise have been difficult to access information. The

book’s classification of approaches to surrogacy (prohibitive, tolerant, regulated and free

market) gave us a better understanding both of how UK law is currently understood in a global

context, and the likely way in which particular reforms would be perceived. Access to this book

directly informed our provisional policies for reform contained in the consultation paper’ [S3].

Immediately following publication of the Law Commissions’ consultation in June 2019, Fenton-Glynn and Scherpe organised a further international surrogacy conference – the ‘International Surrogacy Forum’ – in collaboration with the International Academy of Family Lawyers (IAFL) and American Bar Association (ABA) in 2019, which the Law Commission attended. At this event, and an additional in-depth event immediately after the conference organised by Scherpe and Fenton-Glynn specifically for the Law Commissions, the Law Commissions’ proposals were discussed with an international audience. The Law Commissioner writes: ‘ That conference, in particular, has led to us considering a further means of enforcement of any limitations on the payments that intended parents can make to the woman acting as their surrogate, which had not been raised prior to the publication of our Consultation Paper’ [S3].

Already the work is influencing legal practice in the UK. For example, [R2] was recently cited by the UK Supreme Court ( Whittington Hospital NHS Trust v. XX [2020] UKSC 14) [S6 p.6] The case concerned damages for infertility following medical negligence, and the question before the Court was whether compensation could be awarded to cover a commercial surrogacy arrangement in California. Previously, this had not been permitted, on the grounds that such an arrangement would be contrary to UK public policy. However, the Court ruled that it should now be permitted, with Fenton-Glynn’s work quoted to demonstrate that English law does not treat commercial surrogacy as an inherent wrong, but more as a contextual issue - depending on the circumstances in which it is carried out.

More generally, by working with the ERA, IAFL and ABA, the project has been able to engage with the wider legal profession – ensuring that the research engages with, and informs, practising barristers and solicitors from all over the world. Thus these events have ensured a wide jurisdictional reach, crossing multiple continents, for the research.

Impact on the work of the UN Special Rapporteur on protection of rights of children

At the International Surrogacy Forum in 2019 organised by the researchers, three side meetings were held. The first was organised with the Law Commissions to allow selected individuals from academia, government, stakeholders, the judiciary and practice from multiple jurisdictions to engage in consultation concerning their proposed reforms. The second and third were organised with the UN Special Rapporteur on Sale of Children, who at the time was developing guidelines for the protection of the rights of children involved in surrogacy [S2]. These meetings, which were explicitly referenced in her subsequent report allowed the Special Rapporteur to hear from individuals, stakeholders (including surrogates, intending parents and children born through surrogacy), government representatives, judges and practitioners from multiple jurisdictions and engage in debate on the core issues around the phenomenon of a global surrogacy market.

The subsequent report focused on the protection of the rights of children born through surrogacy arrangements. As well as citing the edited collection on several occasions, the Special Rapporteur explicitly relied on the novel classification of forms of surrogacy regulation developed by the authors in order to analyse the responses received by States to her consultation, and thus develop her proposals [S2, refs on p. 4, 9, 12, 15]. Recommendations in the UN Special Rapporteur’s report focus on developing future legal and policy arrangements that prioritise the rights of the child. Building on the Cambridge research, the report acknowledges that with diverging approaches to surrogacy, it is essential to develop a set of minimum safeguards that can be applied regardless of the stance of individual states on surrogacy.

Engaging with civil society and the wider public

In addition to engagement with academia, civil society and governmental organisations, the project has also sought to engage with the wider public. The initial Hong Kong conference as well as the first Cambridge conference were open to the public, allowing the participation and engagement with stakeholders outside of academia. Recorded talks from the International Surrogacy Forum in 2019 and other resources were made available online. These resources have had 30,062 views so far (January 2020), by viewers from more than 90 jurisdictions and continue to assist those seeking information on the regulation of surrogacy and raise awareness of the underlying issues. Fenton-Glynn was approached by BBC News website to write a piece for their ‘Experts Network’ which would help increase understanding of the issues involved in international surrogacy. The piece, entitled: ‘Surrogacy: Why the world needs rules for “selling” babies’ (26 April 2019) had 433,000 views in the first three days alone. [S5]

Engagement with platform companies on content relating to commercial surrogacy

In 2019, Fenton-Glynn provided advice to Facebook concerning the establishment of a policy to prohibit the advertising of ‘exploitative’ forms of surrogacy from their platform. Facebook was seeking to determine whether and how to action content on its platform relating to commercial surrogacy. The challenges relate to acknowledging legitimate clinics and providers using Facebook to offer information and support around surrogacy, whilst recognising that sometimes arrangements can result in the exploitation of women. Facebook’s Stakeholder Engagement Manager relates that consulting Fenton-Glynn ‘ helped us gain fresh perspectives on these issues and allowed us to scope out the path forward more clearly.’ Fenton-Glynn highlighted the imbalances in bargaining power that frequently exist between people which may lead to exploitation, and distinguished between altruistic and commercial surrogacy would be very difficult to do on the platform. ‘ While there are no easy answers, your input had impact and significantly contributed to our thinking on this policy development’ [S4].

The impact of EBP has been extensive and includes: changes to the methods by which police select locations to patrol against knife crime; UK police agencies adopting the Cautioning and Relationship Abuse (CARA) programme for first offenders in domestic abuse; introduction by the Office of National Statistics of a weighted crime severity score; and the widespread global adoption of body-worn video cameras after the first test led by the Cambridge team.

London Knife Crime Targeting

The Cambridge team’s London knife crime targeting article, published in April 2019 [R2], was downloaded over 1,900 times in the first two weeks after its publication, and 2,700 times by the middle of July in the same year. Following an initial BBC News report [E1], it was reported in 89 news outlets in eight countries, including Australia, South Africa, Brazil, Canada and the USA. Its impact within the Metropolitan police was substantial, rapidly leading to initiatives to improve the precision with which police were assigned to deal with knife crime, including the use of data-driven approaches to concentrate patrols. In her 2019 address to the 12^th Cambridge International Conference on Evidence-Based Policing, entitled ‘Policing in the Digital Age’, Met Police Commissioner Dame Cressida Dick outlined the new initiatives she had led at the Met to both generate and apply evidence-based policing much more widely, including the creation of a 50-member insight team and the training of hundreds of crime analysts by Cambridge criminologists to use evidence-based policing methods [E2].

Informing Police Services on Crime Hot Spots

Building on the Cambridge team’s research on police patrols at crime hot spots, which received wide media coverage including reports on BBC News, the Daily Mail, and the Daily Telegraph [E11], a randomised controlled trial testing hot-spot police patrols against no-treatment controls was conducted with the collaboration of Bedfordshire Police. Following the success of this project, the Home Office announced in 2020 over 100 million GBP of ‘surge funding’ for 2020-21, to enable the hot spot patrols to be replicated by other police authorities.

CARA

The CARA programme (2017) for first offenders in domestic abuse was applied as it was tested by Strang et al [R6] with Hampshire police, in collaboration with the Hampton Trust. Following this randomized controlled trial, the Trust has tracked the adoption of the programme in Avon & Somerset, Dorset, West Midlands, Leicestershire, Cambridgeshire and Norfolk. The CARA programme was awarded a Community Service award by the Howard League for Penal Reform in 2015. The Howard League’s commendation refers to project CARA as ‘an exemplary model of statutory and third sector agencies bringing their expertise together’ and describes the collaboration between Cambridge University and the Hampton Trust as ‘the gold standard in terms of research and [the] first of this type both nationally and internationally for testing this approach’ ( E3).

Measuring Crime Statistics

Shortly after the publication in 2016 of the Cambridge team’s research demonstrating the use of weighted data for measuring crime rates ( **[R3]**), the Office of National Statistics developed an ‘experimental statistics’ programme of its own, reporting crime trends using weighted index of average sentence length for each offence type multiplied by the N of each offence type, summed across all crimes reported to police ( **[E4]**). Since 2018, the ONS has published both national and local crime trends using its weighted harm index alongside the raw counts of all crimes weighted equally. In 2019, the Met Police decided to adopt the Cambridge EBP method over the ONS model to track more reliably the proportion of harm to victims for which an offender is detected with a sanction. Police forces have used the CCHI to identify the crime victims who suffer the most harm, the offenders who cause the most harm, and the people associated with the most harm as both offenders and victims. This was initially done in Dorset and subsequently in Northamptonshire and Leicestershire (sources referenced in **[E5]**). Other countries which have developed their own Crime Harm Indices, using the Cambridge model, include Denmark and Australia (sources referenced in **[E6]**).

Online EBP Course

Following the development of the CCHI, an online course was provided for police leaders. Learners were able to take part in the course remotely, removing the need for travel and accommodation, and empowering them to take the course alongside their daily operational duties over a 10-week period. Almost 400 learners have completed the course, with most UK learners supported by Home Office funding. [E7]. The course has allowed graduates from the UK, EU, USA, and elsewhere to use the CCHI, identify people most likely to be victimised, track and deter criminal networks, and test the violence-reduction impact of police strategies. Recent graduates have pointed to the value of the course to their everyday work:

‘The course was exceptional. I've attended nationally recognized courses in the United States and the value in this course exceeded those courses in many ways by offering more content based on strong scientific evidence. In the current era of police reform, leaders must use Evidence Based Policing if they want to improve and maintain community trust in the police.’

Lieutenant, Burlington Police Department, USA. [E7]

‘It now makes me consider everything that I do, not just in terms of business, but hotspots and offender management, family violence, public order, and how I can apply evidence-based practice to it.’

Inspector, Victoria Police, Australia [E7]

Body-worn Cameras

The Cambridge team’s first body-worn video experiment (reported in [R4], which had been downloaded over 50,000 times by February 2020), was cited in a New York Times article arguing that body-warn cameras would ‘enhance trust between communities and police’ [E8], and then by a federal judge in a 2017 ruling requiring New York City police to wear them. Since then the original study [R4] has become the tipping point for a major global change in police practice, which has in turn sparked a huge body of replication research covering dozens of studies of its take up in the US and other countries [E9]. The Cambridge research was cited by the 2015 US President’s report on 21^st century policing, and in an article by President Obama in the 2016 Harvard Law Review [E10 p.55], written after he distributed USD75 million for use in buying cameras for US police agencies based on the Cambridge research. Obama’s article evidences the impact of research on body-worn cameras, its take-up in the USA and its widespread influence on policy, up to and including the most senior levels of government:

‘[The Obama] Administration has invested millions of dollars in not only deploying thousands of body-warn cameras to our law enforcement officers, but also promoting research and education so we can identify and scale the programs and policies that best enable our law enforcement officers to serve their communities and promote public safety. We built a comprehensive Body-Warn camera toolkit to help communities implement body-worn camera programs. The federal government and our state and local partners must continue to work together to ensure that adequate funding is provided for body-worn cameras for the women and men that police our cities and towns. Government officials, law enforcement leadership and officers, advocates, and community members will also need to continue this dialogue as the technology of body-worn cameras evolves so that law enforcement can most effectively utilize this technology in ways that benefit departments and the communities that they serve.’

A number of engagements and interventions by Erdos in policy debates led to an ‘academic’ expression category being included within the special expression regime within European data protection law for the first time (General Data Protection Regulation 2016/679, art. 85(2)). They also helped ensure that most national legal implementations of the GDPR, including that of the UK, recognised this new concept. Furthermore, they led to this new concept being incorporated within broader professional discourses concerning the appropriate governance of scholarship within the social sciences and humanities. Finally, although originally focused on Europe, these concepts have also influenced wider geographic regions, as highlighted by the recent shielding of academic expression within Brazil’s new data protection legislation (Lei No. 13.70 de 14 de Agosto 2019, art. 4.II.b [E1]). The principal beneficiaries have been academics, research institutions, European legislators and, more widely, legislators in a wide range of other countries drafting data protection laws. Without Erdos’s research, there would not have been the same pressure to amend the GDPR in the course of its drafting. Had it been left unamended, much humanities and social science research would have been at severe risk of being chilled or curtailed by data protection. More specifically, the GDPR’s default transparency rules would have run the risk of outlawing the use of covert and other non-transparent methodologies, whilst its restrictions on the processing of special (and socially-interesting) categories of data such as political opinions and philosophical or religious beliefs would have posed a specific threat to critical research including on public figures.

Erdos was the only academic representative (appointed by the Lord McNally, the Minister for data protection in 2012) on the UK Government’s Data Protection Advisory Panel which engaged in online discussions and met periodically through the process of drafting the GDPR. Erdos was therefore able to voice the case for investigations within the humanities and social sciences to be conceived as a special form of freedom of expression and to detail the difficulties which default data protection norms and even the specific regime for ʻscientific researchʼ posed here. These concerns were fed into pan-European policy discussions. Erdos worked with the Wellcome Trust, who were also represented on the panel. Although Wellcome were principally concerned with the rules applicable to biomedical research, working with Erdos ensured that the humanities and social science case for the expansion of special expression was included within the July 2015 Wellcome Trust briefing on the draft General Data Protection Regulation (GDPR) [E1]. This briefing was then endorsed by over ninety research-related organisations and distributed amongst all relevant policymakers including the European Commission, MEPs and members of the EU Council. Erdos’s contribution is explained in a testimonial from the head of UK and EU policy, Wellcome Trust, Dr Beth Thompson:

‘The original version of legislation published in 2012 did not include academic expression within the freedom of expression clause that covered art, literature and journalism. Dr Erdos' research provided context on two critical aspects related to this. First, that academic scholarship within the humanities and social studies represented a core exercise of freedom of expression. Second, that the scientific research provisions within the GDPR were, at a practical level, fundamentally incompatible with the nature of humanities and social studies research. Successful advocacy based on both strands of this research meant that academic expression was included within the freedom of expression in the final version agreed in 2016.

Dr Erdos played an important role in this success, which required sustained advocacy efforts over four years. His contribution included policy submissions, presentations, blogs and articles, letters and conversations with MEPs and others, and liaison with professional associations and research councils. Dr Erdos sat on the UK Government’s GDPR Advisory Panel, as the only academic representative, which informed the UK’s negotiating position. Dr Erdos also provided advice to me on Wellcome’s related advocacy work on scientific research.’ [E12]

The GDPR was finalised in May 2016 and, in stark contrast to the initial Commission draft ([E2], at Recital 120 and Article 80), did include new protection for academic expression alongside journalism ([E3], at Recital 153 and Article 85(2)). Erdos then worked with the Wellcome Trust on the effective implementation of these new provisions within EU Member State law, ensuring in July 2016 that a paper targeted at all Member States made it crystal-clear that special derogations to facilitate ‘ research in the arts and humanities’ were required [E4, p. 10]. In addition, he reached out to both the British Academy (BA) and the Economic and Social Research Council (ESRC) and helped draft a detailed response to the UK Government’s consultation on derogations within the GDPR scheme which was finalised in July 2017 [E5]. This submission was publicised on both the ESRC and BA websites ([E6] and [E7]) and a summary produced [E7]. Its arguments were picked up by a wide range of relevant actors, not only in the UK but also elsewhere in Europe (see [E8], referring to Norway, and [E10], demonstrating pan-European influence via the European Sociological Association).

This last aspect relates to a third strand of impact, namely, ensuring that the new shielding of academic expression within data protection was integrated into the thinking of academics themselves. Erdos gave a number of presentations on this topic including at a conference looking at regulation in the context of data intensive research [E8]. He was invited to deliver a keynote address to the annual conference of the Norwegian National Committees for Research Ethics Annual Conference in 2018 [E9]. These presentations also drew on further research on the detail of the GDPR, which was definitively published in Erdos’ OUP monograph the following year [R1]. In 2018, the BA-ESRC research was specified in a Joint Statement by the Association for Social Anthropologists, British Sociological Association, European Sociological Association and Royal Geographical Society which stressed that ‘ when universities implement the GDPR it is crucial that they make full use of the derogations designed for enabling academic research’ and that ‘[ t]he reference in the GDPR to academic expression was designed to ensure a similar shielding within data protection as that provided for journalism’ [E10]. The statement welcomes the opportunity to ensure university regulation for data protection and ethics review is robust, and appropriately matched to the breadth and depth of methodological practices in the social sciences.

These initiatives have since been adopted overseas leading, in particular, to the protection of academic expression alongside journalism within the new Brazilian Data Protection Act which was adopted in 2019 [E11].

As stated by the former Chief Executive of the National Offender Management Service (NOMS) and HM Prison and Probation Service, the research cited above ‘has had a direct and profound impact on the development of operational policy and management of long sentenced prisoners across the prison estate’ [S4].

Influence on the direction of high security prison management

In response to Liebling et al.’s 2011 ethnographic study An exploration of staff-prisoner relationships at HMP Whitemoor: 12 years on, NOMS initiated the ‘Liebling Project’, which aimed to redress problems specific to the high security estate and long-term prisoners (such as trust, recognition, and the understanding and policing of new faith identities) as highlighted in the research [S3, S4]. In 2013, the Project’s high-level steering board (which included Liebling) began to develop operational practice and policy action points with the objective of improving and sustaining healthier prison cultures that promoted safety, inter-faith dialogue, and prisoner hope and progression, in an extremely high risk climate [S6]. Considerable work has been carried out since to identify and develop features of prison regimes that ‘make a difference’ to prisoners. This work is ongoing under the title ‘rehabilitative cultures’ ([S7] see also the Liebling Project summary) and has been rolled out across the prison system (i.e. beyond the high-security estate). Overall, the research has ‘had a direct and lasting impact not only on the management of that individual establishment but also on policy and practice across the High Security Estate - particularly influencing our response to the increased risks in prisons linked to Islamic Extremism’ [S4].

Influence on the management and progression of long-term prisoners

The Trust project led to a review of procedures leading to de-categorisation (significantly more attention paid to trust-building and educational and other accomplishments) and parole processes, as well as to a review of the treatment and experience of BME and Muslim prisoners, who are disproportionately represented in high-security prisons (2014-2016). ‘Her [Liebling’s] research in 2010/11, at HMP Whitemoor, developed understanding of radicalisation in prison and helped prevent the introduction of politically attractive but ill-advised policies that would have exacerbated the problem’ [S8]. ‘It was absolutely pivotal in shaping our approach to the threats created by extremist offenders […] and was invaluable in providing the Prison Service with an evidenced based response to ill informed commentators’ [S4]. Liebling hosted a day seminar on request as part of the Lammy Review of Racial Bias in the CJS.

Empirical evidence from a 2014 MQPL + research exercise linked to the Locating Trust project in one of these maximum-security prisons identified the outstanding moral and relational quality of life within a theoretically-informed ‘enabling environment’ or Psychologically Informed Planned Environment (PIPE). This unit successfully operated according to a ‘whole person approach’ to prisoners in which personal development, care, and engagement was possible, despite the highly complex nature of its prisoner population. Following this work, a further policy-led research programme developed [S7]. In 2016, a NOMS working group was established to reduce the use of long-term segregation within the high security estate, to radically improve the culture of segregation units, and to ensure progression out [S3]. This work also built on findings from Crewe, Hulley and Wright’s research, leading to a number of specialised, progressive units within the long-term and high-security estate, and to a reconsideration of the manner in which long-term prisoners are managed at different sentence stages, based on ‘the specific needs of the long term prisoner group which you highlighted in your research’ [S4]. Overall, Crewe, Hulley and Wright’s study ‘has been a major influence (indeed a driver) of change in the management of long term prisoners’, including ‘a fundamental restructuring of the long term prison estate’, leading to the creation of a ‘new expanded High Security and Long Term Prison Estate to cater for the now much larger group of younger long term prisoners’ [S4], including 13 establishments overall. The recent establishment of an advisory group on ‘Managing long-sentence men at the early stages of their sentence’ draws directly on research findings from Crewe’s study [S3]. Crewe et al’s and Liebling et al’s research findings provide the main basis for an internal HMPPS evidence summary of research on long term indeterminate sentences, with Crewe et al’s findings also the basis of an infographic on how people experience and cope with long term prison sentences [S10]. Senior and operational practitioners are engaged with the team in active discussions of the new empirical-conceptual dimensions of 'intelligent trust' and 'political charge' to better understand their prison establishments, and so to improve outcomes. In 2019, members of the team were asked to return to HMP Whitemoor to evaluate its progress, and have reported our findings directly to senior managers in the Prison Service.

In this way, research by Liebling, Crewe and colleagues has assisted in empirically informing and shaping the effort to adopt ‘rehabilitative cultures’ in prisons with the intention of promoting the reduction of violence, and contributing positively to human survival, personal growth, and hope among long-term and high-security prisoners. It has also been ‘central to re-thinking [the] strategic priorities’ of the Prison Reform Trust [S1], and in helping them to obtain and plan a major, five-year grant from the National Lottery Community Fund (titled: Realising potential: making sense of long-term imprisonment) to fund a programme of research, advocacy, reform and public/political engagement in this area.

Influence on the direction and management of specialist prison units

Crewe and Liebling sit on a number of advisory groups whose decisions directly impact on the management of specialist units within the high-security and long-term prison estate. These include the advisory panels for the Close Supervision System, which holds around 60 prisoners deemed too difficult or dangerous to manage in normal high-security conditions, and the Separation Centres, which have recently been opened as a way of managing prisoners considered to represent a significant risk to other prisoners, prison order, or national security as a result of extremist activities.

Influence in relation to the operation of the common-law doctrine of joint enterprise

A high proportion of long-term and high-security prisoners have been convicted under the doctrine of joint enterprise. Work by Crewe, Liebling and colleagues has exposed the disproportionate number of black and ethnic minority prisoners who have been convicted using this doctrine, and the deep feelings of resentment and illegitimacy that joint enterprise sentencing produces. In 2014, based on findings from Crewe et al’s research, Crewe presented evidence to the Justice Committee Second Inquiry on Joint Enterprise in Parliament (2014) [S2]. The data and evidence that he provided, through both written and verbal testimony, were widely cited in the report produced by the committee [S2], and were subsequently used by the appellants in the Supreme Court appeal R v Jogee [S5]. The case resulted in a unanimous ruling that that the law had ‘taken a wrong turn’ in its interpretation of this doctrine, leading to changes in sentencing practices and a number of further appeals.

External recognition by end-users and policy-makers

Liebling received the ICPA Research Award in 2018 (see references by Porporino and Wheatley) and the Prison Service’s Perrie Lectures Lifetime Achievement Award in 2016 [S9]. Liebling was invited to participate in a two-day event led by Lord Rowan Williams, in Dialogue with the Dalai Lama ('Growing wisdom, changing people') at the University of Cambridge, on the theme of Universal Responsibility, as a result of the findings of this study. Liebling, Crewe and other members of the PRC are frequently asked by HM Prison Service and other prison services to advise on matters relating to long-term and high-security imprisonment, for example, talks on trust, risk and building hope, International Prison Chaplaincy Conference (2017), Scottish Prison Service conference (2015). Liebling and Crewe are/have been both members of the HMPPS Rehabilitative Culture working parties, and are current members of the HMPPS Close Supervision System Advisory Panel, and the HMPPS Separation Centres Advisory Panel. Crewe is the only academic member of the HMPPS advisory group on ‘Managing long-sentence men at the early stages of their sentence’ and is a trustee of the Prison Reform Trust. Hulley has been appointed to the advisory board for the Prison Reform Trust’s Building Futures project on long-term imprisonment.

Broader impact

A half hour documentary on Trust in prison was broadcast in 2016, and Liebling was interviewed for a 30 minute Social Science Bite podcast in 2018 and a 90 minute Justice Focus podcast in 2020. Substantial reference to the Whitemoor Report and research project was made (and acknowledged) in a novel by the prizewinning author Susie Steiner ( Missing, presumed, p. 405-6) who cast one of her characters as a Cambridge postgraduate working on the study. Crewe, Hulley and Wright wrote the ‘Long View’ section to the Prison Reform Trust’s highly influential Bromley Briefings in January 2020 on changes in sentence lengths for murder [S11]. The accompanying press release led to articles citing the authors/ university in the national broadsheet press ( The Guardian, The Daily Telegraph, The Independent) and Inside Time, the national newspaper for prisoners and detainees. The Bromley Briefings launch at the Houses of Parliament in February 2020 was attended by around 60 people, including a number of MPs and members of the House of Lords. Crewe was interviewed about his research project for the Justice Focus podcast series and the Growth Uncut podcast series. Crewe, Hulley and Wright were interviewed for a documentary on Joint Enterprise, being made by Movement in Media, and contributed a chapter to the Monument Trust’s publication, Crime and consequence entitled What should happen to people who commit murder? A podcast version of this chapter, recorded by Crewe, was released by National Prison Radio in 2019, and Crewe spoke on this topic at the 2019 annual general meeting for Clinks, an umbrella organisation which represents the voluntary sector working with people in the criminal justice system. In October 2020, Crewe, Hulley and Wright’s online book launch was attended by over 350 people from practice and academia, in the UK and overseas [S12], while their ‘HMPPS Insights’ seminar in February 2020 was attended by over 70 practitioners working in prisons and probation.

Turenne’s research on recruitment, retention and motivation of UK judges has had a tangible impact in advancing understanding of key issues among key policy makers and stakeholders. Her practice of substantiating scholarly research with stakeholders’ interviews has enabled her to gain the trust of senior judges and practitioners. Key policy decision makers including the Senior Salaries Review Body and other parts of government, have relied on her work in reforming the process of judicial selection.

Turenne’s research was the basis for recommendations she made to the Judicial Appointments Commission (JAC) in 2016, with a view to achieving greater fairness in and professionalisation of the judicial selection process. The JAC discussed Turenne’s findings as part of internal strategic discussions in 2017. Recommendations which came into force after that process of consultation included i) introduction of a more rigorous framework for drafting selection tests; ii) putting in place a career development pathway with a specific selection track for current judicial office-holders (including a fast-track process for the Section 9(4) DHCJ exercise in 2017); iii) introduction of a co-ordinated approach to pre-appointment training and mentoring, with the ‘Pre-Application Judicial Application’ project launched in April 2018; iv) greater attention paid to forecasting needs and selection exercises, with a view to facilitating candidates’ career planning. The Lord Chief Justice, Lord Burnett of Maldon, who was Interim Head of the JAC at the relevant time, writes in a testimonial that Dr. Turenne’s research, and the related recommendations she made to the JAC in 2016, were ‘extremely valuable’. His testimonial further notes that Dr. Turenne’s recommendations on issues of career appraisal and flexibility were later taken forward under the remit of the Judicial Office, for which the Lord Chief Justice is responsible. Her research led to ‘extensive work [being] undertaken to ensure that career development for judicial office holders is maximised, with particular improvements in appraisal, flexibility and mentorship. This has also incorporated an increased focus on developing the diversity of the judiciary and ensuring that judicial office holders are equipped with the necessary opportunities to develop their skills’ ( **[S1]**).

Impact on and through the SSRB

Further impact was achieved with the publication of the report by Turenne and Bell, The Attractiveness of Judicial Appointments in the UK [ R6] in October 2018, along with the SSRB Major Review of the Judicial Salary Structure [ S2]. The report resolved key questions over why legal practitioners at various levels were not applying for judicial posts, and suggested how to reverse the decline in applications from candidates with different legal specialism and those with care responsibilities. According to the testimonial provided by Sir Geoffrey Vos, Chancellor of the High Court, the Turenne-Bell Report provided ‘the evidence needed to show that senior practitioners were genuinely less willing to apply for judicial appointment’ [ S3]. The Report’s findings provided new knowledge and altered policy makers’ perceptions: they ‘were not quite as expected by the AEG’, according to Sharon Witherspoon, Chair of the SSRB Judicial Sub-Committee, also the Chair of the Advisory and Evidence Group (AEG) which was supporting the SSRB’s work [ S4]. Pay and pensions were shown to be an important factor in some cases, but they were not the only, nor a universal, deterrent to applications for judicial appointment. Vos, who was a member of the Senior Salaries Review Board at this time, reports that the SSRB was ‘particularly grateful’ that the report ‘imposed some analytic ordering in their own view of the implications’ of their findings, as it ‘uncovered’ various concerns about what it meant to be a judge, such as the fear of losing specialist knowledge upon appointment [ S3]. Discussions subsequently took place with the Judicial Appointments Commission (which was represented on the AEG) and senior judges about taking more account of applicants’ expertise and interests in decisions on the allocation of judges’ caseloads [S1], and the need for more nuanced ways of measuring workload [ S4].

According to the SSRB, the Turenne-Bell report ‘demonstrated what national and regional issues needed to be addressed to rectify’ the unwillingness of qualified candidates to come forward across ‘different levels of the judiciary’ [ S4]. Evidence of procedural obstacles led to the JAC to change the timetable for applications. They also altered their approach to demonstrating competence with respect to judicial appointments, thereby emphasising that a merit-based approach remained a distinct and essential aspect of the appointment process, as Turenne’s research had consistently recommended [ R2]. In these respects, ‘the agenda had been set by [the Turenne-Bell report]’ [ S3].

[ R2] also ‘informed [the SSRB’s] recommendations in particular about why there were more significant recruitment issues for the higher judiciary’ [ S4], with the SSRB’s recommending significant pay increases with a view to addressing recruitment needs with regards to the senior ranks [ S3]. The Report also queried whether the judicial retirement age (70 years) was acting as a disincentive to judicial recruitment. ‘As a direct result’ a government consultation began on 16 July 2020 on whether the judicial retirement age should be increased, and the UK government is considering a reconsideration of the rule preventing judges returning to practice, in both cases as the Report suggested [ S4].

Overall, ‘the Report was, in effect, extremely influential in persuading the SSRB, and thence the Government, to deal with the serious questions that faced both judicial retention and recruitment…It improved the outcomes, in terms of remuneration and other issues, for the judiciary’[ S4]. Findings and policy implications were further disseminated, with Turenne making presentations to key stakeholders including the JAC and Ministry of Justice representatives, senior judges and practitioners. Forty judges and practitioners attended a Chatham House seminar in March 2019 on the subject of judicial recruitment and remuneration. In two articles in January 2019, The Times described the ‘research by Sophie Turenne and John Bell’ as ‘a stark illustration of how the work of a judge has lost its appeal, fuelling the present crisis in recruitment’ [ S5]. The Times cited the Lord Chancellor’s response to Turenne & Bell’s evidence, promising ‘careful consideration to the issues that have been raised’ [ S5]. For The Times, ‘The report, which was posted on the SSRB website, will fuel the case for higher salaries, improvements to pensions and more money generally into the courts system’ [S5].

Impact in France and Italy

Turenne’s wider research is leading to impact outside the UK. The OSCE has promoted the 2010 OSCE-Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia in relation to countries including Poland. Turenne took part in the training of French judges between 2016 and 2019, at the invitation of the French School of the Judiciary. In October 2018 she was invited by the OECD to discuss, in a government roundtable, the likely benefits of court-based adjudication in state/investor disputes, as part of impetus to reform investment arbitration so as to align it more closely with core principles of judicial practice. In March 2019 she gave the keynote speech at a swearing-in ceremony of judicial office holders (London Inner South Coroners, Southwark). From 2019 she has been advising Italian academics based at the University of Milan on approaches to research on these issues, and conducting interviews with members of the Italian judiciary, with a view to completing a book project on judicial independence in Italy.

Elliott has contributed to two pivotal legal developments relating to Brexit; the Supreme Court’s landmark judgments in the Miller I and Miller II cases and the enactment of the European Union (Withdrawal) Act 2018 (‘EUWA’). The Miller cases concerned the legal preconditions to the initiation of the process for the UK’s withdrawal from the EU and the legality of the Government’s attempt to prorogue Parliament at a particularly sensitive time in relation to Brexit. The EUWA is widely considered to be the most constitutionally significant piece of legislation since the ECA.

Elliott’s impact in respect of these two matters has been secured via publications posted on his blog, Public Law for Everyone, and his role (with Tierney, University of Edinburgh) as legal adviser to the House of Lords Select Committee on the Constitution. Elliott served as one the Committee’s two legal advisers from 2015 to 2019.

The Miller I case

The Miller I case concerned whether the UK Government had legal authority to trigger the Article 50 withdrawal process under the royal prerogative. In a blog post in June 2016, Elliott argued that it did. The Divisional Court and subsequently the Supreme Court rejected that view. However, Elliott’s arguments on this point were influential in two ways. First, the UK Government adopted Elliott’s arguments when arguing the case before the UK Supreme Court. Second, the leading dissenting judgment, given by Lord Reed, accepted key aspects of the Government’s argument, which were themselves premised upon arguments first advanced by Elliott [ E1]. Elliott’s work thus impacted on how the Miller case was argued by the UK Government and upon the leading dissenting judgment.

Elliott’s impact has been clearly acknowledged by other leading scholars. Phillipson [ E2] comments that by the time Miller ended up in the Supreme Court, the Government had ‘re-tooled’, ‘formulating a set of more sophisticated arguments that drew heavily on academic commentary, in particular that published by John Finnis, a notable legal philosopher and constitutional theorist, and Mark Elliott, one of the UK’s leading public lawyers’. Phillipson goes on to say that a ‘new line of argument’ used by the Government in the Supreme Court was ‘taken directly from commentary written by Finnis and Elliott’, while another argument ‘was first advanced’ by Elliott. Phillipson thus says that Elliott’s arguments ‘were adopted wholesale by the Government’ and that its printed case ‘appears to quote Elliott directly’ (but without attribution).

The Miller II case

In its historic judgment Miller II, the UK Supreme Court held that the Government’s attempt to prorogue Parliament for a five-week period was unlawful. Prior to the hearing, Elliott published a blog post arguing that, contrary to the view of many of the High Court’s judgment in Miller II, it would not be constitutionally improper for the Supreme Court to consider and to rule unlawful the Government’s attempt to prorogue Parliament. During the hearing, Lord Pannick QC, lead counsel for one of the parties, relied and quoted extensively from Elliott’s blog post, summarising and distilling his wider research on this matter [ E3].

“In seeking to persuade the Supreme Court in favour of Mrs Miller's case, I heavily relied on the blogs published by Professor Elliott addressing the issues in the case. His analysis of justiciability, the role of the courts in assessing prerogative powers and whether the Prime Minister may use his powers in a manner which avoids Parliamentary scrutiny were central to the arguments which I advanced … and central to the reasoning of the Supreme Court in favour of Mrs Miller … he was able - at great speed, given the urgency with which the case came before the courts - to apply that knowledge to the circumstances of the Gina Miller case and explain its application in this novel context. I have no doubt that Professor Elliott's contribution was very significant in helping the Supreme Court to understand the constitutional law context and implications, and in assisting them to the answer at which they arrived. [ E4]

The Supreme Court held both that this was a question it was constitutionally entitled to consider and that the attempt to prorogue was unlawful [2019 UKSC 41].

The European Union (Withdrawal) Act 2018

The House of Lords Constitution Committee issued three reports on the EUWA, in March 2017 [ E5], September 2017 [ E6] and January 2018 [ E7]. Each was designed to influence a crucial stage of the process: the drafting of the Bill, its Commons stages and its Lords stages. The reports are widely considered to have played a key role in causing the Government to accept amendments to the Bill (the Government tabled 170 amendments to the Bill, many in direct response to the Committee’s recommendations), and, in doing so, alleviating a number of serious constitutional problems in the original Bill. Elliott and Tierney were actively involved in advising the Committee on the Bill’s constitutional defects, influencing the deliberations of both the Committee in frequent meetings and the Government Bill Team in a closed session, and in helping to draft each report.

“Professor Elliott's work was crucial in enabling the Constitution Committee to understand the problems, to produce a report explaining them, and to propose amendments to remedy the defects. Almost all of those amendments were accepted by the Government during the passage of the Bill through Parliament. Professor Elliott played a very major role in these matters.” Statement from Lord Pannick, member of the House of Lords Constitution Committee. [ E4].

The committee and its parliamentary support also made use of Elliott’s expertise, accessed via his blog summarising his wider research on these issues. According to a testimonial from the Senior Library Clerk, House of Commons Library:

“Mark Elliott’s blog, Public Law for Everyone, was widely read by officials in the House of Commons, including myself. Elliott’s analysis in his posts was especially valued because they produced so quickly on topical public law issues that are often the focus of officials working with MPs and because of their analytical rigour. Elliott’s posts were also valued because his work is studiously non-political. I relied on his posts a great deal in my work briefing MPs on EU (Withdrawal) Bill, before and after it was published” [ E8] .

“My first briefing on the subject Legislating for Brexit: the Great Repeal Bill cited Elliott’s blog posts 5 times - including the post from 2 October: Theresa May’s “Great Repeal Bill”: Some preliminary thoughts. This briefing was one our most viewed briefings for a number of months. It also received positive feedback from MPs and their staff.” [ E8] .

Elliott also gave briefings to parliamentary officials on the bill. The Senior Library Clerk writes:

“I organised a seminar in Parliament for officials in both Houses to discuss the Bill. The seminar was well attended by staff from the Committee office, the Office of Speaker’s Counsel and the Libraries of both Houses. Elliott was the main speaker, and he gave an incredibly detailed but also accessible analysis of all the constitutional issues in the Bill, which given the Bill’s complexity was extremely valuable. This analysis played a major role in informing my work on the briefing on the Bill for members, which was published before second reading in September 2017. [ E8] .

Some of the main changes to the Bill which were influenced by Elliott’s and Tierney’s input include the following:

Status of ‘retained EU law’ after Brexit

The Constitution Committee identified a number of serious problems relating to the status of ‘retained EU law’ under the Bill. The Government accepted that the Committee had highlighted an ‘undeniably important issue’ (letter to Committee [ E9]). This led the Government to radically reshape the status of retained EU law, delineating different forms of retained direct EU legislation as respectively ‘principal’ and ‘minor’ to which different forms of parliamentary scrutiny will apply [ E10]. This significantly enhances parliamentary control over retained EU law.

Status of European Court of Justice case-law after BrexitThe Constitution Committee raised concerns about a lack of clarity in the Bill on this issue. Elliott and Tierney helped formulate a detailed alternative approach which the Committee adopted [ E7]. In light of the Committee’s recommendations, the Bill was amended and a much clearer formulation is now contained in Section 7(2) of the Act. This is likely to have highly significant consequences for how EU law will continue to apply in the UK after Brexit.

Delegated powers: International obligationsA major area of concern with the original version of the Bill was the extensive delegated powers it gave to the Government and how this would unsettle the balance of executive-legislative power, which is crucial to the UK constitution [ E7 pp. 45-50, E6 pp. 11-15]. Elliott and Tierney in their capacity as legal advisors informed the Committee’s strong critique of an international obligations-related power in the Bill (original clause 8). This was removed by the Government through an amendment tabled in the Lords.

Delegated powers: ScopeThe Committee, in the light of analysis provided by Elliott and Tierney, criticised the unlimited range of discretionary powers in what is now Section 8 of the EUWA. The Government accepted this criticism. The Bill was amended so that the Section 8 power could not be used to create new public authorities, or amend the devolution statutes for Scotland and Wales. [ E6 p.18]

Delegated powers: Scrutiny

Elliott and Tierney gave detailed advice on how to improve scrutiny of delegated powers under the Bill. The Committee recommended the more extensive use of affirmative procedure for regulations which make policy changes and a sifting procedure by committees to decide if negative or affirmative procedure should be used [ E5 p.32-33]. The Act now makes provision for a ‘sifting’ process in respect of statutory instruments that do not automatically fall within the affirmative procedure. The Committee also recommended that the use of the powers should be time limed. The Bill was amended to include a sunset clause in respect of Section 8. These detailed changes give Parliament a significantly greater role in controlling the Government’s delegated law-making power after Brexit.

The European Union (Withdrawal) Act 2019

In early 2019, Yvette Cooper MP and Oliver Letwin MP steered legislation through Parliament in unprecedented circumstances to try to avert a no-deal Brexit. When the Bill, which later became the European Union (Withdrawal) Act 2019, was published, Elliott wrote a blog post on it and advised the House of Lords Constitution Committee which then produced a report in only 24 hours to inform the House of Lords debate. The blog post and the report highlighted concerns relating to the drafting of the Bill, including one aspect that might in fact have increased the prospect of a no-deal Brexit by eviscerating the Prime Minister’s negotiating discretion. The Bill was amended in the House of Lords. During the Lords’ debate both the Constitution Committee’s report and Elliott’s blog post were cited. Lord Hunt of Wirral described Elliott’s analysis of the Bill as “brilliant”, while Lord Anderson of Ipswich said that Elliott, in his blog post, had “done a very thorough job” and that “we in Parliament should all be very grateful to him for the work that he has done” [ E11].