Impact case study database

Immigration represents a crucial legal and political challenge in South America. The emigration of approximately 5 million Venezuelans since 2015, mostly to other countries in the region, has put the regulation of the legal status of non-nationals at the centre of political debate. In December 2019, there were 366,596 Venezuelans in Ecuador and 253,495 in Brazil.Footnote:

Information available here for Ecuador: https://r4v.info/es/situations/platform/location/7512 (accessed 25 March 2020). For Brazil please see: https://r4v.info/es/situations/platform/location/7509 Despite the increasing number of immigrants in both countries during the twenty-first century, national immigration laws remained outdated, as they had been adopted during periods of military regimes: in 1971 in Ecuador and in 1980 in Brazil. The three principles that Professor Acosta develops in his work ((1) Non-criminalisation of irregular migration; (2) The right to migrate as a fundamental right and; (3) The construction of a South American citizenship)) were completely absent in these previous legal frameworks.

Acosta´s work has had two different types of impact and beneficiaries. First, his research decisively affected the introduction and content of a number of key provisions in the new immigration laws in 2017 in both countries. Parliamentarians in Ecuador and the Ministry of Justice’s drafting Committee and the National Immigration Council in Brazil used his research and written advice to amend the wording of several provisions in the laws, as well as to justify the inclusion of others.

Second, the laws’ implementation has had a positive impact on the lives of thousands of migrants in both countries who have obtained a residence permit and thus access to the right work, education, health care and family reunion, which depend on having a residence permit.

The following two sections further describe the impact of Acosta’s research and its beneficiaries by dividing the presentation between Ecuador and Brazil.

Ecuador

In Ecuador, Acosta´s work decisively influenced the incorporation of a whole chapter (Chapter IV, Arts. 83-89) on South American citizenship in the final version of its 2017 Law on Human Mobility (6 February 2017), which repeals the previous 1971 law that had been adopted during dictatorship. In turn, at least 128,617 South American nationals – the majority of them Venezuelans – obtained a residence permit in the country between 2017 and 2019 [5.9] under Chapter IV of the law.

In July 2015, Acosta produced, together with Ramírez (an Ecuadorian sociology scholar), a 16-page written submission for the Ecuadorian Parliament [3.6]. Several legal suggestions were put forward, in particular on a South American citizenship. The report was presented in front of the International Relations Committee – which was in charge of drafting the new migration law – by Ramírez on several occasions in 2015 and 2016, as well as before the Plenary in 2016 [5.6-5.8]. Acosta visited Ecuador’s Parliament in December 2015, attended the Committee´s sessions and met with several MPs and advisors to discuss the draft bill [5.6].

As confirmed by the President of Parliament at the time of the adoption of the law, “ the report, contribution and commentaries of Professors Acosta and Ramírez decisively influenced the inclusion of Chapter IV (Articles 83-89) on South American citizenship in the final text of the law adopted” [5.6]. This has also been confirmed by the former President and Vice-President of the Parliament’s International Relations Committee [5.6]. As the then Vice-President of the International Relations Committee corroborates, “ one of the main points of their report was the need to more clearly regulate the legal status of nationals coming from countries in the region, something that was not included in the original proposal for the law” [5.6]. The main impacts, which draw upon key findings from Acosta’s research [3.1-3.6] can be summarised as follows:

(1) Non-criminalisation of irregular migration: the Acosta-Ramírez Report emphasised the “ importance of incorporating a permanent mechanism of regularisation for nationals coming from UNASUR Member states”, a regional organisation that, at the time, included all 12 countries in South America [5.6]. Article 85 of the 2017 law was directly affected by this proposal and “ establishes a mechanism to access temporary residence, and regularisation when needed, that nationals of UNASUR member states must follow” [5.6].

(2) The right to migrate as a fundamental right: Acosta-Ramirez’s report also highlighted “ the need to include family reunification in a concise manner for South American nationals” [5.6]. This was enshrined in Article 87 of the law which “ establishes the rights of family members of South American citizens” [5.6].

(3) The construction of a South American citizenship: Finally, the report also urges “ the necessity to include in the Draft Bill the rights of entry, exit, circulation, residence and work for South American citizens” [5.6]. As the former President of Parliament confirms, “ Article 84 of the law finally adopted includes the right of entry, exit and circulation for the nationals of UNASUR member states” [ibid].

In brief, “ it can be proved how each one of these articles follow the suggestions that Professors Acosta and Ramírez had made, and that such suggestions played a decisive and central role in the final text of the law” [ibid].

Following the publication of Acosta’s landmark book on South American migration and citizenship [3.1] in 2018, the new President of the International Relations Committee invited Acosta to present his vision on how to reform and improve certain aspects of the 2017 migration law, coinciding with the increasing immigration to Ecuador of Venezuelan nationals [5.6 and 5.7]. Before the presentation on 10 January 2019 [5.6], Acosta sent a 10-page document with legal suggestions, which was taken into consideration by the President and her team, as well as circulated to all MP members of the Committee and to government officials [5.6]. Acosta, who was the only non-Ecuadorian academic to be invited to present, devoted his presentation to the need of enhancing permanent regularisation mechanisms. In fact, despite the approval of the 2017 migration law, and the 128,617 South American nationals who obtained a residence permit under its Chapter IV, there were still thousands of Venezuelan nationals who could not fulfil certain conditions and remained in an irregular situation. During his visit in January 2019, Acosta discussed this issue with different officials at the Ministry of Foreign Affairs and, later, with the Vice-Minister of Human Mobility in May 2019 in Quito, within the framework of an academic conference to which he was invited by an Ecuadorian University. This discussion with the Vice-Minister continued in July 2019 within the framework of an event organised by the international organisation ICMPD. On 25 July 2019, Ecuador adopted a regularisation procedure for Venezuelan nationals that lasted until 13 August 2020 [5.10]. This partly addressed the concerns expressed by Acosta, and the plight of those previously unable to obtain a residence permit. As of 14 August 2020, this had benefited 38,243 Venezuelan nationals [5.9].

Brazil

In Brazil, Acosta’s research decisively influenced the final drafting of several provisions of its 2017 Lei no. 13.445, which repealed the 1980 Migration Law adopted under a previous dictatorship. In turn, these provisions have led to the granting of residence permits to thousands of South American nationals (22,851 in 2018 alone) [5.5].

The origin of the new migration legislation was as follows. In 2013, the Brazilian Ministry of Justice created an expert Committee, composed only of Brazilian nationals, to draft what would become Lei no 13.455. The Committee met seven times between July 2013 and May 2014 [5.3]. A report by Acosta, commissioned by Brazil´s Ministry of Labour and the International Centre for Migration Policy Development (ICMPD) had a major impact on the work of the Committee, as detailed below. The Report, published in June 2014, analysed the 1980 Brazilian Immigration law, as well as a 2009 Brazilian government proposal for reform, and compared it with the immigration laws in Spain and Portugal. Based on this analysis, it suggested key elements that should be part of any new legal framework (3.3).

Acosta's report consists of six sections, three of which were written in August and September 2013, ahead of a presentation explaining some key findings that he gave in Brasilia in front of top Ministry of Labour officials on 13 September. He used feedback from that event to finalise an initial draft of his Report, which he sent to the Committee in charge of preparing the new migration law on 16 October 2013. The Report was read by all the Committee members: it constituted one of the core references they used [5.4]. Further, in May 2014, Acosta, drawing on (3.3), produced a 10-page legal commentary that was sent to the Committee between the publication of the first draft of the Committee’s proposal in April 2014, and the final draft bill published in July 2014 [5.4]. The Committee acknowledged this contribution in its final draft [5.3]. Brazil’s National Immigration Council also drafted a parallel proposal and published it in December 2014. The National Immigration Council had also received Acosta’s legal commentary in May 2014. Acosta then visited Brasilia again in July 2015 and met with several Senator advisors and top public officials in Brazil´s Ministries of Labour, Foreign Affairs and Justice where he continued presenting his arguments and influencing the debate. Following debate by Congress and Senate, the final bill 13.445 was adopted and published on 24 May 2017.

As confirmed by the corroborating statement of the Secretary of State for Justice at that time, who also chaired the Committee in charge of drafting the law, “ both the report as well as the written contribution were very important and used extensively in the debates of the Committee. Some of the Professor´s suggestions in his documents decisively influenced articles adopted in the final proposal” [5.2]. Another corroborating statement by the then President of Brazil’s National Immigration Council adds that Acosta’s work “ has enormously contributed to the discussions on the new law and to the drafting of some of its articles” [5.1]. In particular, Acosta’s instantiation of the three key principles noted above were taken on board by the Committee and by the National Immigration Council:

(1) Non-criminalisation of irregular migration: First, Acosta´s work “played a fundamental role” in the introduction of a permanent mechanism of regularization for undocumented migrants. The former Secretary of State for Justice explains, “ this is very clear from the difference between the first version (of the Committee´s report) of 28 April 2014, which did not include such mechanism, and the second version of 31 July 2014 which clearly introduces in Article 34(1) the obligation of the migration authorities to offer the migrant a period to have an opportunity to regularise his situation” [5.2]. He further confirms that this had been the first point of Acosta’s legal commentary, as well as the first section of his chapter in the 2014 Report [3.3]. Acosta’s work was also “essential” to the inclusion of a similar provision in Art. 55 (III) of the National Immigration Council’s proposal [5.1]. The mechanism was finally enshrined in the renumbered Article 50 of the 2017 migration law and is very similar to the mechanism in place in Argentina, “ which the Professor specifically mentioned in his contribution as a good practice” [5.2].

(2) The right to migrate as a fundamental right: Acosta’s suggestions “influenced in a direct manner” the introduction of a subjective right to family reunification for migrants in Brazil in both the Committee and the National Immigration Council draft bills [5.1 and 5.2]. As the former Secretary of State for Justice mentions: “ Article 26 of the final version included the suggestion by the Professor (in his legal commentary) in the sense of clarifying the migrant´s right to family reunification. This can be seen in the addition to Article 26.2 of the words ‘or of the migrant who is a beneficiary of a residence permit’ as the Professor had suggested”, which was missing in the first draft of the bill from April 2014 [5.2]. This same wording was also inserted into Art. 37 of the 2017 law finally adopted.

(3) The construction of a South American citizenship: Acosta’s work was central in incorporating a reference to the MERCOSUR Residence Agreement. This agreement, adopted by the regional organisation Common Market of the South (MERCOSUR) offers South American nationals from nine countries, excluding Venezuela, a right of residence, as well as other entitlements, in each other´s territory. The former Secretary of State for Justice explains: “ This reference was absent in the first version and the Professor insisted on its importance (in his legal commentary) and the need to incorporate it and how this could be done in Art. 145” [5.2]. The provision was finally included in Article 110 of the Committee´s final proposal, which substituted Art. 145. This provision then became Article 111 in the 2017 law finally adopted and kept the reference to MERCOSUR. There were 22,851 residence permits granted under the MERCOSUR agreement in Brazil in 2018 [5.5]. In 2018, Brazil permanently extended the validity of the agreement to include Venezuelans as well. By October 2020, 148,782 Venezuelans had obtained a residence permit through this route [5.5].

Over the last forty years, the UK has witnessed an erosion of labour rights through national policies of substantive and procedural labour market deregulation. A key brake on that process of deregulation has been the guarantee of fundamental rights through the Council of Europe and the EU. Ford's work has been pivotal in supporting the continued role of this European 'floor of rights' in resisting substantive and procedural deregulation. First, Ford’s work had a substantial impact on the stance of the TUC (representing 48 UK trade unions), major trade unions and the Labour Party on the substantive deregulation of workers’ rights threatened by Brexit. Second, Ford’s research underpinned key arguments made before the Supreme Court, which successfully challenged procedural deregulation in the form of draconian Employment Tribunal fees.

1. Informing political debate around Brexit and workers’ rights. Ford’s Advice for the TUC on the substantive threat to workers’ rights from Brexit [3.1] directly influenced the TUC’s stance of supporting ‘Remain’ in the referendum, as reflected in the General Council Report for 2016 [5.3] and a letter to the Financial Times from TUC General Secretary, Frances O’Grady, the latter stating: “ Last week the TUC published an independent legal opinion on Brexit and workers' rights ... Michael Ford QC's opinion makes it abundantly clear that no EU-derived workplace right would be completely safe post-Brexit.” [5.4]. As O’Grady later commented: “ The quality of the analysis contained in the opinion, combined with Professor Ford’s standing in the legal profession, ensured that the opinion carried significant weight with both journalists and policymakers” [5.1]. The TUC disseminated Ford’s Advice to its member unions and referred to it in press releases, Twitter, and a video on YouTube, resulting in wide coverage in the press, including in the Independent, Financial Times, and New Statesman [5.4]. A House of Commons Library briefing paper for MPs referred to it as “ the best discussion of the potential employment law consequences of Brexit” and it was cited in parliamentary debates [5.5]. As well as the TUC and its members, it influenced the approach of the Labour Party in the referendum. As Sir Keir Starmer, now Labour Leader, then Shadow Brexit Secretary, comments:

“The Advice…had a significant impact on Labour Party policy running up to the Referendum, and the warnings we issued of a potential “bonfire” of workers’ rights in the event of a leave vote. It provided the background material to substantiate that claim, and I referred to it in speeches I gave prior to the Referendum. The warnings in the Advice also prompted a Private Members’ Bill, promoted by the Labour MP Melanie Onn and supported by me, which attempted to give a measure legal protection to EU-derived rights after Brexit, but which was predictably talked out by Conservative MPs” [5.2].

The Onn Bill, however, helped keep pressure on the Government on the issue and provisions protecting workers’ rights post-Brexit were included in the Government’s original EU (Withdrawal Agreement) Bill in October 2019. Moreover, as promised in the revised Political Declaration between the UK and EU, the Trade Agreement between the EU and the UK reached in December 2020 [5.6] contains pledges ‘to strive to increase’ protection for labour rights and not to ‘weaken or reduce’ current levels of protection for labour and social rights in a manner affecting trade’ (Article 6.2). Subsequently, the British Government stated that it had no plans to dilute workers’ rights, post-Brexit [5.6].

Ford’s work continues to be seen as the key reference point for trade unions and the Labour Party on these issues. As O’Grady puts it: “ The quality and importance of Professor Ford’s work” means his research “ continues to form the bedrock for TUC analysis of workplace rights in the context of the UK’s exit from the European Union… it is ‘regarded as the “go-to” document for staff at all levels of the TUC, and in the wider trade union movement and beyond, when working on issues relating to Brexit and workers’ rights” [5.1]. Starmer confirms that “ Michael’s Advice remains highly relevant whenever there are policy discussions and political debates about workers’ rights after Brexit. Its high quality of analysis means it remains the key text to refer to in this area” [5.2].

(2) Resisting procedural deregulation: protecting access to justice in the UNISON case UNISON relied solely on EU law in the initial stage of its judicial review challenging fees of up to GBP1,200 for workers wishing to take their employers to court. However, a senior EHRC lawyer confirms that it was Ford’s submissions for the EHRC which originally argued that fees could also interfere with the right of access to a court enshrined in Article 6 of the ECHR and the analogue but undeveloped common law right [5.7]. These arguments in the event proved decisive before the Supreme Court (SC), which, in 2017, overturned three courts below, upheld the arguments and declared that employment tribunal fees were unlawful.

Ford’s Case for the EHRC [3.4] was described by a QC involved in the case as “ of the highest quality and well-researched, meaning that [its arguments] were particularly convincing. This proved to be especially helpful to the Claimant, UNISON, in what was a difficult case, but one of great constitutional importance” [5.7]. Ford’s Case had three impacts on the way the case was reasoned and argued. First, it was a significant reason why the arguments based on the common law and Article 6 ECHR could be raised before the SC in the first place, as confirmed by lawyers for EHRC and UNISON [5.7]. Second, as the solicitor for UNISON explains, Ford’s arguments in the Case “ were picked up and developed by Dinah Rose QC”, the lawyer acting for UNISON, in her submissions to the SC [5.7].

Third, the judgment of the SC adopted or drew on Ford’s EHRC Case in several places. For example, Lord Reed in his leading judgment drew on material in the Case at paras 42-44 to explain the low level of awards made by Tribunals and the claims before a Tribunal that often result in nil or very low damages (judgment, paras 31-34) [5.7]. In other places, Lord Reed’s judgment lifted material directly from the EHRC Case as follows: para. 33 of the judgment echoed para. 45 of the Case; paras 35-37 of the judgment (discussing the low level of tribunal awards) is drawn from paras 47-48 of the Case; para. 40 of the judgment, on the drop in claims of small value, largely echoes para. 44 of the Case; paras 43-44 of the judgment, setting out how few claimants obtained remission from the fees, draws on paras 35-36 of the Case. Moreover, in the words of the solicitor for UNISON, paras 47-48 of the judgment, giving Lord Reed’s assessment of the ACAS valuation survey evidence on the effect of fees, “ drew heavily” on Ford’s Case (paras 23-26) and “formed the basis of [Lord Reed’s] *second reason for holding that fees were an unlawful interference with access to justice (judgment para. 93)*” [5.7].

Finally, an important section of the judgment found that the fees were in breach of Article 47 of the EU Charter of Fundamental Rights, which is closely modelled on Article 6 ECHR (paras 105-117). In making this finding, Lord Reed accepted the argument made in the Case at paras 8-9 and 30-38, also advanced by UNISON, that ability to pay was not the sole relevant factor. In particular, Lord Reed relied at para. 115 on the decision in Kniat v Poland as demonstrating this point, which is the very case cited and explained in Ford’s Case for the EHRC at paras 9 and 30. As a senior solicitor for EHRC summarises: “ in several respects Lord Reed in his judgment drew directly” on arguments in the Written Case “on the low levels of awards in the tribunal, the poor record on enforcement, the limited effect of exceptional remission and how ability to pay is not the sole relevant legal factor” [5.7].

The impacts of UNISON itself were momentous: it is generally agreed to be the most important employment law decision of the past 50 years, since it directed affected the ability to seek effective redress for almost every statutory employment right in the UK. First, all Tribunal and Appeal Tribunal fees paid from when fees were introduced on 29 July 2013 until the date of the judgment had to be repaid. These amounted to 74,000 fees repaid, at an estimated cost of GBP33 million [5.10]. Second, a very significant number of employment tribunal cases that had been dismissed because of non-payment of fees were reinstated [5.10].

Third, and most significant of all, fees ceased to be payable from the day of the SC judgment. This led directly to a dramatic increase in claims. According to the official statistics, in the three years from 2014/15 to 2016/17, when fees were payable, the mean number of single claims per year was 16,787 (an average of 1,398 per month). After the judgment, from August 2017 to June 2020, the average was 3,067 single claims per month – more than double [5.8]. Therefore, more than 20,000 workers a year now bring tribunal claims which, but for the SC judgment, would never have been brought. Fourth, the effects of the decision extend beyond employment: it is being relied on in other cases concerned with access to courts or tribunals, such as R (Law Society) v Lord Chancellor [2018] EWHC (Admin) 294 (a challenge to restrictions on criminal legal aid). It will constrain and guide future government policy in relation to fees and other impediments to tribunals or courts in all jurisdictions, as the former Lord Chancellor Dominic Raab explained to the Justice Committee of the House of Commons on 19 December 2017 [5.9].

The research underpinning Ford’s Case, as summarised in output [3.5], was referred to by Shantha David, the solicitor for UNISON, when she gave her evidence to the House of Commons Justice Committee. Pointing out how Ford’s arguments directly resonated with Lord Reed in the Supreme Court, she said: “ I recommend [his] article… in the Industrial Law Journal … He points to the fact that employment tribunal claims promote labour standards. In the rush to reduce costs, the Government lost sight of the benefits of individual [employment tribunal] claims as a means of promoting labour standards. Lord Reed, as you will recall, identified that as important and said that individual tribunal claims had public benefits, not just for those individuals but for society as a whole.” [5.9]. David concludes that the UNISON decisions “ had enormous implications for the thousands of claimants denied access to the employment tribunal because of fees, for the upholding of labour standards in all workplaces, and for impediments to access to the courts in all spheres.” [5.7].

During this REF period, Cowan’s research has helped reform both housing law in Wales, and fitness for human habitation law in England, impacting approximately 9 million households/tenures across the two nations.

Housing Law Reform in Wales

Cowan’s research had a direct impact on the Renting Homes (Wales) Act 2016. The Act was based on Law Commission reports and the Commissions’ draft Bill, to which Cowan contributed in 2005-2007, when seconded to the Law Commission, but contains some significant changes in response to the research above. The Act creates a unified rental housing market, clearer rights and responsibilities for tenants and landlords, and a radical overhaul of repairing standards, thus responding to the reasoned case for such reforms made in [3.1] and [3.3]. The Policy Director of the Residential Landlords Association (RLA) comments that it will have an ‘ enormous impact’ on residential housing [5.2] as it re-writes every existing short tenancy agreement in Wales, whichever landlord granted it. The benefits of the Act were put succinctly by a representative of the Housing Law Practitioners’ Association, in evidence to the National Assembly, Communities, Equality and Local Government Committee, 20^th May 2015 [5.8]: ‘ If you pass this in something vaguely approaching the form that it’s in at the moment, I will be able to take my clients—landlord or tenants—to hopefully no more than one, possibly two, pieces of legislation and say, “These are the source of your rights”. Whereas, at the moment, I have to take my clients through a mishmash of common law, statutory law and some bits tucked away in obscure statutory instruments’.

The background to the Bill was the recognition by the National Assembly for Wales (once it was given devolved powers over housing in 2011) of the serious inadequacies of current law and the compelling need for legal reform. An initial 2011 discussion paper on options for reform, which, as the Project Manager for the Welsh Government on the legislation, remarks, drew heavily on [3.3] [5.1, esp. para 2.1] led to Cowan’s appointment to the expert panel advising on the legislation, attending key stakeholder meetings prior to 2015.

In March 2014, Cowan drafted the legal instructions to the Office for Legislative Counsel, on behalf of the Welsh Government, ‘ ensur[ing] the Bill accurately addressed [their] policy intentions, as well as helping to shape policy’ [5.1]. As the relevant Team Leader at the Law Commission commented, it is very rare for instructions to be drafted other than by a Government lawyer [5.3]. He further commented:

My assessment is that, without Professor Cowan’s contribution, it is likely that either the Instructions would have taken a considerably longer time to produce and/or they would not have been of an adequate quality. If they had taken longer to produce, the legislative timetable would have been upset, and the much-needed reforms would have been at best delayed. Inadequate quality would also have resulted in delay (because it would cause difficulties with Legislative Counsel); and would have resulted in a less robust final draft. The quality of the final draft of the bill was an important factor in assuring its passage through the Assembly largely unscathed.

Cowan’s insights from [3.1], in particular, assisted with the ‘ complex interactions between housing and human rights law’ [5.1], and his academic position enabled the civil servant responsible for delivering the Bill, against a backdrop of the opposing views of landlord and tenant bodies, to garner cross-interest group acceptance of the proposals. As the RLA’s Policy Director states, ‘ [Cowan] has been a powerful force in the Welsh legislation and it is clear that it would not have been as effective or as tidy without his input at the drafting stage…the RLA … is clear that his involvement has been crucial’ [5.2]. The Welsh Government’s Project Manager for the legislation notes:

… the direct and highly constructive contribution [Cowan] made … to the Bill itself, and continuing to assist in advising on queries arising during the legislative scrutiny, has made a significant contribution to the Bill successfully completing its passage through the Assembly. I would highlight the particular policy matters which have benefitted from the insights developed in [Cowan’s] research as being recognition of the separation between social and market tenure, the abolition of mandatory Ground 8 in respect of rent arrears, and the interaction between human rights law and that applying to anti-social behaviour. [5.1]

The abolition of Ground 8 – mandatory ground for possession based on rent arrears of two months or more – was specifically argued for in [3.1] and [3.3] as a consequence of moving towards a tenure-neutral framework; the development of human rights law had been a particular focus of Cowan’s research following from his intervention in [3.1]. Cowan’s research on the values of administrative justice in housing law and policy [3.1], as well as the relationship between regulation and rights/responsibilities [3.1] and [3.3], were reflected in the final draft of the Bill, which included greater use of review processes than those in the original Commission draft Bill. Those provisions in the final Act were regarded by the RLA as being reflective of ‘ [Cowan’s] views on the use of administrative justice and the proper place of due process. More specifically this is visible in the use of fixed penalties and practical consequences to drive compliance rather than a resort to the Courts. This is also visible in the novel approaches to retaliatory eviction, a topic which is of increased interest and in which Welsh thinking has informed action elsewhere’ [5.2].

In one respect, Cowan was unsuccessful in translating his research into the provisions of the Bill – in seeking to ameliorate the position of minors in rented accommodation [3.2]. However, while this part of the Bill was dropped, his research has put this issue firmly on the policy agenda for possible future action. This provision, in the original Bill, applied the principle that the rules should apply to all tenancies, including those granted to those between the ages of 16 and 18. It did not make it into the final Act due to concerns regarding the enforceability of other contracts and their vulnerability. However, the RLA believes that, while ‘ It was unfortunate that [Cowan’s] ideas around rights for minors in rented accommodation were so watered down in the final legislation as to be almost invisible […] this is an idea that is likely to resurface in future’ [5.2]. This is because discussion of this issue during the passage of the Bill through the National Assembly, particularly the expert witnesses before the Communities, Equality and Local Government Committee, put it firmly on the political radar. For example, there was support for the provision from a range of other sources, including the Welsh Local Government Association and Community Housing Cymru, which regarded the provision as a homelessness prevention device [5.9].

The reforms within the Renting Homes (Wales) Act 2016 have directly affected the lives of approximately half a million households who are private or social tenants, and their landlords.

Influencing Fitness for Human Habitation Law in England

Drawing on and developing the work he did with the Welsh Government leading to the 2016 Act, Cowan with his colleagues (Carr and Kirton-Darling (Kent), and Burtonshaw-Gunn (Bristol)) have influenced: (i) Shelter’s lobbying strategy regarding housing conditions in England; and, (ii) the successful passage in the Westminster Parliament of the Homes (Fitness for Human Habitation) Bill (a private member’s Bill sponsored by Karen Buck MP that obtained Government support). That Bill, now enacted, will affect every social and private rented tenancy of less than seven years in England, involving around 8.8 million properties (Ministry of Housing, Communities and Local Government, Dwelling stock Estimates: 2017, England). As the name suggests, the Act creates an implied covenant into every such tenancy that the dwelling be fit for human habitation at the commencement of and during the term of the tenancy. The Act amends the largely redundant section 8, Landlord and Tenant Act 1985, which implied a similar covenant but only to tenancies with rent levels of less than GBP80 pa in London and GBP52 elsewhere (figures that had not been updated since 1957).

Shelter has attested to the way in which the Closing the Gaps research [3.6] enabled it to focus its lobbying strategy in this area, and influenced their presentation to the Communities and Local Government Select Committee (in both written and oral evidence), as well as their other lobbying positions. Shelter comments that Closing the Gaps [3.6] ‘… informed our decision to prioritise the fitness [Karen Buck] bill for short-term influencing. We integrated the findings of the report into our messaging on the Bill, particularly around framing of the problem. [It] helped us to broaden out the scope of our evidence, pointing to deficiencies in the legislative framework on top of quantifying the extent of poor conditions/Category 1 hazards’ [5.6]. Shelter added: ‘ It’s fair to say that the findings in the report have influenced the perspective of Committee members. … in subsequent sessions, MPs have used those observations from the report – particularly the legislative framework being piecemeal – to pose questions to other witnesses, including the Homelessness Minister’.

Closing the Gaps [3.6] was cited consistently throughout a House of Commons Library Report [5.4], prepared to assist MPs’ appreciation of the issue. The Report cited the key findings of [3.6], including that the law ‘… is piecemeal, out-dated, complex, dependent on tenure, and patchily enforced. It makes obscure distinctions, which have little relationship with everyday experiences of poor conditions’.

Karen Buck MP cited Closing the Gaps [3.6] when opening the debate on the Second Reading of her Bill [5.5], and has said that she regarded it as a ‘ very timely and valuable contribution to the debate’ [5.7]. Indeed, she noted that, ‘ As I was preparing for the critical Second Reading stage and lobbying for government support, having such a comprehensive and rigorous report could not have been more useful, and I made extensive reference to it’ [5.7]. Consequently, the research had a direct influence on the proposer of the Bill, which was also used by her to enrol other actors, thus giving rise to the broad coalition of support for the Bill. This support across Parliament was, in many ways, a remarkable thing given that, as the Project Leader from the Welsh Government noted, there had been historical antipathy since 1957 to updating the rent levels in the previous provision [see 5.1].

Shelter confirmed that Closing the Gaps [3.6] was used to provide ‘… an additional, independent endorsement of the policy solution i.e. the fitness standard. This was valuable for discussion with potentially sceptical MPs and helped to give our recommendations more weight. Given that Shelter had campaigned on the Bill before, its position was perhaps seen as “predictable” and being able to point to other organisations making the same policy recommendation was helpful for engaging with a broader range of MPs’ [5.6].

Subsequently, the government supported the Bill, and Buck suggests ‘… that something – and perhaps more than one thing – changed the political conditions and I would be confident that the appearance of the report [3.6] at exactly the right time armed Ministers with arguments to explain the new, supportive, position’ [5.7]. Shelter also notes that ‘ We know that the report was well received by senior officials, who commented that it made a valuable contribution to the debate. We’d be comfortable to predict that it helped inform the government’s thinking’. Shelter also noted a further concrete sign of approval of the research was ‘… the director at MHCLG [Ministry of Housing, Communities, and Local Government] waving the report while proclaiming “I love stuff like this”’ [5.6].

The Bill was given Royal Assent on 20 December 2018 and came fully into force on 20 March 2020 in respect of virtually all existing tenancies, whether granted before or after the Act.

The underpinning research detailed above has been used to help bring about improvements to the policies and practices of key UN treaty bodies – the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Discrimination Against Women – the African Commission, African Court, governments and civil society organisations (CSOs).

Improved visibility of decisions and status of implementation within the African system

As a result of HRIC’s engagement with the African Commission [3.3], it held a panel during its Session in the Gambia, October 2018, and invited HRIC researchers to regional seminars on implementation of decisions. The Commission’s strategy [5.4] and revisions to its new Rules of Procedure (Rules 125(2) and (10)), adopted in June 2020, incorporated two of HRIC’s recommendations: first, that the African Commission call on other actors, such as national human rights institutions, to provide it with information on the measures taken by the state to implement the decision and remedy the violations to the victims; second, that the Commission will start to publish information on its website on the status of such implementation. These measures will increase the visibility of the decision and the availability of information on its implementation, ultimately improving the likelihood of implementation.

Improved monitoring of the implementation of judgments, decisions and recommendations of UN and African bodies

The UN Treaty Bodies (including the Subcommittee on Prevention of Torture (SPT), the Committee on the Rights of the Child) are independent bodies that monitor implementation of their respective human rights treaties. HRIC’s research [3.2], as well as Evans’ ten-year practical experience as Chair of the SPT, resulted in the establishment of a high-level group to develop a common position by Treaty Bodies for the General Assembly’s 2020 review of the UN human rights treaty body system. This process was achieved through Danish funding of a Wilton Park Meeting and Outcome Document [5.5] and a key meeting in Copenhagen. The meetings generated the position adopted by the Chairs of Treaty Bodies in June 2019 and which now represents the position of the Treaty Bodies entering into the 2020 Treaty Strengthening process. That the position of the Chairs of the Treaty Bodies, led by Prof Evans, is taken seriously is attested by the UN High Commissioner for Human Rights [5.8]. Much of what they proposed is already being operationalised.

One of the most radical proposals – conducting reviews of human rights reports in regional settings rather than in Geneva – has now been implemented in March 2020 by the UN Committee on the Rights of the Child, meeting for the first time in Samoa. The opening of that session [5.9] makes it clear it is doing so because of the Chairs' position: ‘ *This is an historic and ground-breaking moment for the history of United Nations human rights treaty bodies. For a long time, stakeholders and beneficiaries, including Governments and civil society organizations, have been asking to have meetings of treaty bodies closer to where they live. The Chairs of the treaty bodies in their most recent meeting in June of 2019, identified “review in the region” as one of their priorities for the future of the treaty body system. They agreed “that there are considerable benefits in conducting dialogues with States parties concerning their reports at a regional level”. So here we are!*’ [5.9]. Research from HRIC staff [3.2], therefore, has had far-reaching impacts not only on the strategic direction of the UN treaty bodies’ work but also on their practical operations.

Based on their research [3.1], [3.3], HRIC staff, on the advice of the litigants, were granted leave to submit an amicus curiae brief in a Ruling on Reparations pending before the African Court against Kenya (App.No.006/2012, African Commission on Human and Peoples’ Rights v Republic of Kenya). The amicus related to the implementation of the judgment and has been cited as influential in the litigants’ arguments: ‘ the submissions’ focus on the level to which the Court should detail the specifics of the remedy will be crucial to establishing a meaningful ruling which is capable of implementation. In addition, the focus on possible Court monitoring of the steps that the State has taken to execute the judgment will assist with setting a vital precedent for state reporting in respect of all future Court reparations rulings’ [5.1]. The African Court has since sought further advice from HRIC on how it could hold compliance hearings.

Drawing upon HRIC research [3.1], [3.2], Murray commented on the framework proposed by a legal expert appointed to develop an implementation strategy for the African Court. One of her key recommendations was that the State be explicitly required to identify national focal points to facilitate follow-up communication with the Court. This and other suggestions from HRIC research were incorporated into the strategy, with the expert noting that Murray’s comments ‘ made so much sense that I reworked the draft framework based on them’ [5.3]. The revised strategy, with the incorporated comments, was ultimately adopted by the African Court [5.10]. This will direct how the African Court approaches its role in monitoring implementation and what it will require of States.

Working closely with the Network of African National Human Rights Institutions (NANHRI) and drawing upon HRIC research that underscores the role of other actors [3.1], Murray drafted NANHRI’s Guidelines on the Role of National Human Rights Institutions in Monitoring Implementation of Recommendations of the African Human Rights Bodies. These were adopted by NANHRI in 2015. As NANHRI attest: ‘ The Guidelines have also been utilised in NANHRI’s support to [National Human Rights Institutions] in targeted countries such as Cote d’Ivoire and Kenya, where follow-up activities on implementation of specific decisions of regional human rights bodies have been conducted. They have also been utilised in regional workshops for exchange of NHRIs experiences in the monitoring of implementation of decisions of regional human rights bodies, which have evolved to the Annual Exchange Forum at the margins of the Ordinary Sessions of the African Commission of Human and Peoples’ Rights. In light of this, it is without doubt that the Guidelines have immensely contributed to the improvement of NHRIs’ role in monitoring implementation of decisions and recommendations of regional human rights bodies in Africa’ [5.6].

Improved Zambian governmental strategy on international human rights law compliance

One of the key findings from HRIC research was the importance of having domestic mechanisms that coordinate or take responsibility for the implementation of decisions [3.5]. The Zambian government, backed with funding from the Open Society Foundations, notes the crucial role of the HRIC, which led to the government amending its strategy on compliance and establishing a database to facilitate follow-up and improve inter-ministerial coordination. The Solicitor General noted that the HRIC involvement ‘ has supported ongoing efforts to streamline the national process for the implementation of recommendations. … In particular, with your continued support, we are in the process of establishing a database for all communications, decisions and recommendations and reports received by the Ministry of Justice from the UN and African human rights bodies’ [5.7].

Improved strategy and practice of leading human rights litigators

Drawing upon the findings of the ESRC-funded project [3.3], Murray developed a strategy for CSOs that litigate before supranational bodies, outlining practical ways that those organisations can encourage implementation. Murray is Vice Chair on the Board of the Institute for Human Rights and Development in Africa (IHRDA), one of the leading litigators in the African system. The Institute used her strategy to craft the reparations in their submissions when they filed the Kilwa case (Communication 393/10: IHRDA, ACIDH and RAID v DRC) [5.2] relating to the massacre of over 70 people in Kilwa. Victims were granted compensation of over USD2.5 million and the Democratic Republic of Congo (DRC) was called upon to prosecute those responsible, including a mining company complicit in the violations; provide apologies and construct a memorial; give psycho-social support for victims; and rehabilitate the socio-economic infrastructure including the school and hospital. The strategy was the basis for a workshop with local partners and victims in the DRC after the African Commission adopted the decision in 2018 when subsequently working towards its implementation.

The Chief Executive of IHRDA said the Murray strategy ‘ has since become one of the most important and useful documents for the IHRDA. …It has made us rethink and refine our work on implementation. We now, for example, begin to think about implementation from the time a case is conceptualized, not after a decision is adopted or judgment delivered. We also have used the Strategy to develop roadmaps on implementation of decisions and judgments we have won recently’ [5.2].

McGuinness and Rooney’s research brings together key insights on the regulation of reproduction, human rights, constitutional law, and healthcare law and policy. This has led to: (1) The decriminalisation of abortion and subsequent provision of abortion services in Northern Ireland (NI); (2) UK-wide changes in practice, policy and training to improve support and care from clinical staff, crematoria and General Registrars for parents who experience miscarriage or stillbirth.

1. Reforming abortion law in Northern Ireland

Prior to October 2019, abortion was criminalised in Northern Ireland (NI) with very narrow exceptions. This did not stop women in NI obtaining abortions but made it both difficult and unsafe. During 2019, McGuinness and Rooney provided expert advice to MPs on abortion law in NI and its human rights implications which played a crucial role in the successful campaign to decriminalise abortion in NI. This included providing written evidence to the pre-legislative committee on the Domestic Abuse Bill in April 2019 (originally the target legislation for an amendment on abortion law reform) where they set out key arguments for reform [5.1]. Their evidence, drawing on [3.1], made the case that it was constitutionally legitimate for Westminster to legislate to direct the Secretary of State for NI to change the law on abortion in NI, insofar as it was incompatible with international human rights law, specifically, the Istanbul Convention which seeks to protect women against violence. Their evidence also drew on [3.2] and [3.6] to detail what appropriate regulation of abortion in NI should be. In October 2019, McGuinness provided written evidence on the cross-jurisdictional implications of abortion policy to the British-Irish Parliamentary Assembly [5.1]. She provided expert advice in October 2019 and March 2020 on law and good clinical practice to Karin Smyth, Shadow Minister for NI, during debates on the abortion regulations for NI consequent to the 2019 Act (below) [5.2].

Most crucially, McGuinness and Rooney provided extensive advice to Stella Creasy MP, who in July 2019 tabled a successful amendment that became Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. The amendment decriminalised abortion in NI and required the Secretary of State for NI to make provision for abortion services in the province. Creasy called on McGuinness and Rooney’s expert advice, even on the day of the parliamentary vote on the amendment, to provide legal arguments demonstrating that human rights were not a devolved issue and hence remained with Westminster. McGuinness and Rooney advised both on the amendment’s wording and the content of briefings used to garner support for it [5.2]. Stella Creasy summarises how their contributions shaped decision-makers’ understanding of abortion law and led to its reform: “ their research was extensively used in developing the campaign to decriminalise abortion in Northern Ireland…[and] provided the basis for [the] successful amendment…section 9 of the…[2019 Act]”. Additionally: “ Dr McGuinness’ research argued that appropriate healthcare is properly determined in this context by the perspective of the individual…This concept underpinned the campaign for decriminalisation of abortion in Northern Ireland. [Her] work [also] provided a comparative lens through which to develop abortion policy for Northern Ireland, and her research into the shortcomings of abortion law in [other countries] provided a basis for how we conceptualised a human rights-based reform for NI. Overall, Dr McGuinness’ research has had a clear and significant impact on MPs considering abortion law reform [in NI], and within the wider community of those working for [such] reform.” [5.2].

Creasy further confirms: “ Dr Rooney’s research contributed to law change by enabling us to convince actors within the parliamentary process, clerks, and MPs that abortion was not an exclusively devolved issue…insofar as it was human rights incompatible, and that the devolution settlement legally required devolved institutions to legislate and create policy that was compatible with human rights. Her research enabled us to argue that it was therefore legitimate for Westminster to legislate to direct the Secretary of State…to change the law on abortion in Northern Ireland...Her arguments were vital in securing the political impetus for reform.” [5.2].

In addition, a Parliamentary Adviser to Creasy detailed how Rooney provided advice: “ literally while Stella [Creasy] was about to make the speech which won the first amendment which I truly believe is the vote that paved the way for decriminalisation. You can see on Hansard [Robin Walker, HC Debate (June 4^th 2020) vol. 676, col. 1018] that the arguments you gave us on devolution and human rights were what won it in the chamber, and those arguments have now been taken on by the government are used by ministers to defend the [abortion regulations].” [5.2].

The Act came into force in October 2019 and abortion in NI was immediately decriminalised. Hence the prosecution of a woman for procuring abortion pills was formally dropped on 22^nd October (reported in Irish Legal), and the Abortion (Northern Ireland) Regulations 2020 came into force on 31^st March 2020 with services established shortly thereafter, meaning women and girls were able to access abortion. While this landmark legal reform has yet to be fully implemented, it has allowed 664 women to access medical abortions in the six months to October 2020 (reported in the Belfast Telegraph), as compared to eight reported abortions in the year 2018/19 ( NI Termination of Pregnancy Statistics). It enabled healthcare professionals who have been prevented from providing appropriate care to do so and removed the threat of prosecution for healthcare providers helping women to access abortions.

2. Transforming UK policy and practice for reproductive loss

McGuinness’s research has improved healthcare and support services provided to parents who experience miscarriage and stillbirth. In the UK, approximately 25% of pregnancies end in miscarriage (250,000/year) and stillbirth occurs in 1 in 224 births (3000/year).

Development and implementation of national guidance

The Human Tissue Authority (HTA) has statutory responsibility for regulating the removal, storage, use and disposal of human bodies across the UK through its Guidance and Inspection procedures. McGuinness, as part of the ESRC-funded Death Before Birth (DBB) project [i], examined whether the HTA Disposal of Pregnancy Remains Guidance “(i) was being implemented; (ii) was known about by women; (iii) was fit for purpose” [5.3]. Her findings [3.3; 3.4] informed the HTA’s position that, while the current guidance is “fit for purpose”, there is a lack of informed choice and variation in the standard of information provided to women. This led the HTA to update “the advice and guidance we provide to the sector…and inspections of HTA licensed establishments” [5.3]. As HTA’s Head of Regulation commented: “The valuable work from the [DBB] project has played a key part in our efforts over the last six years” to produce “guidance that is relevant and meaningful” for “potentially vulnerable” individuals. The DBB findings have also been used in guidance which informs clinical practice across the UK and provides the basis for hospital and clinic protocols on the management of pregnancy remains. The Royal College of Obstetricians and Gynaecologists incorporated DBB’s recommendation for “ a standardised approach to provision of information about options for disposal of pregnancy remains” in 2018 guidelines, whereas previous guidance did not address this at all [5.3]; and the Royal College of Nursing cite DBB in their national clinical guidance on miscarriage care (2018) [5.3].

Since its launch in October 2017, The National Bereavement Care Pathway (NBCP) has improved the quality and consistency of bereavement care provided by healthcare practitioners to parents following reproductive loss across UK healthcare settings. From the earliest stages, McGuinness and DBB’s findings [3.3; 3.4] provided evidence-based recommendations for the NBCP. The UK Lead for NBCP states: “ *The DBB Report was used in a number of important ways in formulating the NBCP. The Report provided clear evidence for what we needed to make explicit in development of the Pathway. … Furthermore, we also used the DBB in the actual development and progression of the pathway. The recommendations … brought our attention to the importance of sensitivity, clear communication with parents, consent and parental choice …These are areas… now fully incorporated in the NBCP documentation and guidance, which provides specific instructions* [on] these issues.” [5.4].

These areas appear in the NBCP’s nine Core Standards and, as of July 2020, 69 of England’s 137 Hospital Trusts had signed up to the NBCP. In an independent evaluation of the NBCP pilot in 2019, 89% of parents said they were communicated with sensitively; 89% felt the decisions they made in the hospital were the right ones. 76% of healthcare professionals who were aware of the pathway agreed that bereavement care improved in their trust during the pilot [5.4]. McGuinness was also a member of the Mothers and Babies: Reducing Risk through Audits and Confidential Enquiries across the UK working group established to address radical variation in recording and reporting signs of life in pre-term births at the limits of viability. Her arguments for the importance of legal frameworks facilitating high quality clinical care [3.4] and the legal implications of inconsistent practice [3.6] informed the group’s subsequent ‘Guidance on Establishing Signs of Life in Babies Born at or Before Limits of Viability’ (November 2020), endorsed by all four governments and relevant Royal Colleges setting standards for UK-wide care [5.5].

New training resources

To ensure that professionals have access to the training and support necessary to provide excellent care to parents who experience reproductive loss, McGuinness and other DBB researchers worked with professional organisations to develop professional development materials using insights from the DBB project [3.3, 3.4, 3.5]:

1. Two Royal College of Midwives iLearn Modules on ‘Disposal of Pregnancy Remains’ and ‘Supporting Parents through Registration of Stillbirth’ [5.6]. Available to approximately 4,000 midwives/support workers; completion contributes to on-going professional revalidation. According to iLearn’s Professional Lead : “as a result of these modules, midwives, support workers and students are better equipped to provide effective and compassionate care and support for parents who have experienced pregnancy loss.” [5.6].

2. The Federation of Burial and Cremation Authorities’ (FBCA) ‘Best Practice Guidance for Infant Cremation – England and Wales’ training for the FBCA training and examination certificate for crematorium technicians, available to members at 236 UK crematoria. This training is the first in the sector to explain “ the importance of recovering the ashes from a parent’s perspective and provides examples of the types of uncertainty that parents express”. FBCA’s Secretary & Executive Officer explains “ It was only through [UoB’s] research, guidance and input that we became aware of the central role of the ashes to many parents and the important role they play for many in a healthy grieving process” [5.7].

3. Sands (the leading stillbirth and neonatal death charity in the UK) and the General Registrars Office materials to improve stillbirth registration practice, including training videos and online materials for midwives and registrars [5.8]. According to Sands’ Training and Learning Resources Manager, DBB “findings have been integral to informing and guiding our work with a range of professional bodies”. [5.8].