Impact case study database

Lewis’s work helped to inform significant public and political debate in multiple jurisdictions. Providing an evidence-based approach, the research offered judges and policymakers an informed critique of possible regulatory regimes, which is needed for effective decision making. As such, Lewis’s work contributed directly to legal change in Canada and Australia, and influenced policy debates in Ireland, and England and Wales.

Changing the law to permit MAiD

Lewis’s work contributed directly to legal change on assisted dying in Canada. The Supreme Court of Canada struck down the federal prohibition on assisted suicide in 2015, resulting in the legalisation of MAiD by statute in June 2016 (Statutes of Canada 2016, ch. 3 – Royal Assent on 17 June 2016) [A].

In the REF period 2008-2013, Lewis acted as an expert witness for the claimants in the British Columbia Supreme Court case Carter v Canada (Attorney General) 2012 BCSC 886. Her affidavit drew on her underpinning research [1,4,5] and was cited 11 times in the British Columbia Supreme Court judgment to rebut the slippery slope arguments, which were central to the Canadian Government’s unsuccessful case. The Canadian Government had argued that, without criminal prohibition, it would be impossible to protect vulnerable people and the country would descend into condoning murder. Lewis’s evidence rebutting this included her research examining the Dutch data on termination of life without request and her evidence that the number of life-ending acts without explicit request in Belgium had declined since the legalisation of assisted dying [1].

The British Columbia Supreme Court’s decision was overturned on appeal: the Canadian Government argued that the Court had not been entitled to revisit the constitutionality of the legislation prohibiting assisted suicide because the Supreme Court of Canada had previously considered the issue in 1993. The claimants appealed to the Supreme Court of Canada and Lewis’s affidavit was again influential. In fact, her evidence was crucial to the appeal even being heard ( Carter v Canada (Attorney General) 2015 SCC 5) [B]. In 2015, the Supreme Court of Canada overturned the appeal decision on the basis that there had been “a change in the evidence that fundamentally shifts the parameters of the debate” [B, paras 44-45]. This new evidence included Lewis’s argument rebutting the slippery slope allegation [B, para 47]. Once the hearing began, the Government asked the Supreme Court of Canada to consider fresh evidence of a slippery slope in Belgium [B, paras 110-113]. The Supreme Court of Canada concluded: “… The trial judge, after an exhaustive review of the evidence [which included Lewis’s affidavit], rejected the argument that adoption of a regulatory regime would initiate a descent down a slippery slope into homicide… We find no error in the trial judge’s analysis” [B paras 120-121].

Since MAiD was legalised, there have been at least 13,000 reported cases of it [C]. For the individuals concerned (and others who are suffering and wish to receive MAiD), the change in the law provides both choice and control over their end-of-life decisions – something they did not have when MAiD was criminalised. Kate Alexander, whose father chose a medically assisted death, spoke of her “gratitude to the Canadian government for passing legislation allowing MAiD” for this reason [D].

Legislative reports from the Australian States of Victoria and Western Australia [E], where assisted dying was legalised in 2017 and 2019 respectively, also cite Lewis as having been a strong influence on the decision to legalise MAiD. In the Victorian report, for example, Lewis’s evidence was cited during the discussion of the Parliamentary Committee’s proposal for safeguards [E1]. The report refers to Lewis’s research [3], which proves that the requirement that a request must precede the provision of lawful assistance to die is respected in all reported cases in countries where MAiD is already legal [E1 p.113]. Lewis’s evidence reassured lawmakers about the effectiveness of the prior request procedure, which they then enacted.

Influencing policy debates

In jurisdictions where assisted dying remains criminalised, the experience of other countries is often drawn upon. Due to the sensitivity of the issue, the law will not change without lengthy political and public debate (as the Supreme Court of Canada acknowledged [B, paras 5-10]). Lewis’s work informed and enriched these debates in several countries, including England and Wales, and Ireland.

In the REF period 2008-2013, Lewis wrote a commissioned briefing paper for the Commission on Assisted Dying [4]. Together with her work critiquing the existing regulatory regime [5], the briefing paper significantly influenced policy debate in England and Wales. Her key conclusion – that the current policy ensures that assistance in suicide remains an amateur activity – is regularly invoked in Parliament, the media and the courts by those who emphasise the need to change the law. For example, in 2014, during Tony Nicklinson’s appeal to the United Kingdom Supreme Court [F], his counsel stressed that the current policy “encourages amateur assisted suicides, with the obvious risks of botched attempts and the considerable burden on friends and family members who will be treated as criminal suspects” [F, p.755].

In 2014, the former Lord Chancellor Lord Falconer referred to Lewis’s critique of the existing regime during a discussion of the Assisted Dying Bill in Parliament [G]. In articles written for The Guardian and The Economist [H], Lord Falconer advocated for a change in the law that enables MAiD while providing for effective safeguards that prevent pressure or abuse – the model recommended by Lewis. Her critique was again cited during a Westminster Hall Debate on Assisted Dying Law in January 2020 [G]. During this debate, Karin Smyth MP expressly rejected the slippery slope argument on the grounds of the lack of evidence [G], reflecting Lewis’s findings in [1]. This debate in the United Kingdom has begun to shift policy and practice, with Lord Falconer introducing to the House of Lords a new Bill in early 2020 (Assisted Dying Bill [HL] 2019-2021).

In Ireland, Lewis’s oral and written evidence to the Joint Committee on Justice and Equality was cited 24 times in their June 2018 Report on the Right to Die With Dignity [I]. This reflected Lewis’s reservations about the DPP’s Policy for Prosecutors in England and Wales, and the desirability of bringing the practice into the open and regulating it [2].

During recent legislative debate on the Dying with Dignity Bill 2020 in the Oireachtas (Parliament), Deputy Gino Kenny rejected the slippery slope argument based on the experiences of other countries, including Belgium and the Netherlands [J], which was laid out in Lewis’s research [4]. The Bill provides for assistance in achieving a dignified and peaceful end of life for qualifying persons. It is currently progressing through the legislature.

The empirical testing conducted by Mosey demonstrated the potential advantages of the FAC-1 as an effective collaborative contract, in particular for public bodies, local and central government. As a result, FAC-1 has been used extensively, underpinning new UK construction guidelines responding to COVID-19 and changing practices on construction projects in the UK and other jurisdictions.

Impact on key projects

The success of the early stages of the project led to Mosey’s appointment as lead mentor and academic partner for the UK Cabinet Office’s ‘trial projects’ initiative in 2013. This enabled the publication of guidance by the UK Cabinet Office in January 2014, recommending the use of preconstruction phase contractor appointments governed by collaborative contracts, incorporating the FAC-1 principles [A] and in turn leading to the publication of FAC-1. The results of these initiatives were compelling, with FAC-1 being adopted on procurements totalling over GBP45,000,000,000 in five countries between 2013 and 2018 [B]. From these initiatives, a range of tangible benefits emerged.

The use of FAC-1 has led to significant cost savings. For example, Surrey County Council and Kier Services Highways achieved savings in excess of 12% which were sustained over a five-year programme of work on local road infastructure. The Surrey-Kier alliance then secured savings of approximately 8% against prices under their previous contract model [C]. Futures Housing Group (which provides affordable housing) created an FAC-1 alliance with Travis Perkins and 21 small contractors which achieved average savings of 9 % against their previous framework in its first year [D]. These savings were partly due to FAC-1 connecting small contractors directly to national supplier Travis Perkins on more favourable terms than they could have obtained separately. Agreed alliance savings have since risen to between 16% and 22% [D]. Ian Skipp, Group Finance and Resources Director of Futures Housing Group, stated that in using the FAC-1 alliance, “the sense of truly belonging to a collaborative group is clearly apparent” [D].

FAC-1 has a focus on social value, ensuring that those at all levels of the construction process are considered. By enhancing collaboration and focusing on social value, FAC-1 has led to the development of significant employment and training initiatives. Futures Housing Group used FAC-1 to agree and implement support for small contractors through local training and employment initiatives, including creating their own Training Academy [D]. In addition, the Surrey-Kier alliance developed the award-winning S-Skills Programme that attracted almost 100 apprentices in 2019. All of them had been through the Youth Justice System and were generally people seen as “furthest from employment” [C]. The Surrey-Kier alliance also developed the Surrey Infrastructure Academy, aimed at filling professional and managerial shortages in the construction industry. Commitments from supply chain alliance members included local employment and skills development opportunities and encouraging local recruitment [C]. The positive environmental impact of FAC-1 has ranged from the greater use of local businesses and local workforces, to design innovations of subcontractors and manufacturers, and the improved recycling of materials [E]. FAC-1 has also helped to improve safety, user satisfaction, sharing of data and sustainability of projects.

Underpinning UK guidance: FAC-1 in national construction guidelines

The results from early adoption of FAC-1 in the sectors of social housing, highways and education led King’s research [1,2,3] directly to influence UK Government procurement practices. For example, as a result of close collaboration and consultation with King’s researchers, the UK Crown Commercial Service now uses FAC-1 for all its new frameworks [F]. In 2020 the UK Cabinet Office also recommended FAC-1 as the contract through which clients and teams can achieve improved outcomes from long-term commitments [G].

In response to the COVID-19 pandemic, the UK Government sought ways to stimulate the economy and, as part of this, the ‘build back better, build back greener, build back faster’ strategy seeks to accelerate construction procurement. On the basis on his published research, Mosey was the only legal academic invited by the Cabinet Office to join the consultation. He was part of the drafting group that produced The Construction Playbook Government Commercial Guidance, which gives specific advice on sourcing and contracting for public works projects and programmes [G]. FAC-1 underpinned this pan-government publication.

The Construction Playbook:

• Establishes 14 new policies for improved procurement practices designed to deliver ‘better, faster and greener solutions’ that support recovery from the pandemic, helping to build the economy while improving building and workplace safety, and including green initiatives to minimise waste and greenhouse gas emissions [G]. The 14 new policies are required to be adopted on a ‘comply or explain basis’ and the guide recommends FAC-1 to help achieve “many of the ambitions set out in this Playbook” [G].

• Details how government and industry can utilise collaborative relationships and contractual systems of the type underpinning FAC-1 to deliver public sector works in a more modern and efficient way. It states: “A successful framework contract should be based around principles that align objectives, success measures, targets and incentives so as to enable joint work on improving value and reducing risk. This should then be combined with transparent performance measurement and work allocation procedures. The FAC1 framework is a good example of a standard form framework contract that can achieve this” [G].

• Recommends FAC-1 as the means by which public sector clients and their teams should adopt long-term contracts, invest in modern methods of construction, embed the use of BIM as a digital solution, procure using early supply chain involvement and outcome-based performance measurement, and apply benchmarking for a better understanding of costs. It endorses FAC-1 as an effective contract that is structured to enable the efficient exchange of data, to drive collaboration, to improve value and to manage risk [G].

• Includes a Compact with Industry signed by representatives of 48 professional bodies, consultants and contractors. These signatories recognise the value of FAC-1 as the preferred medium for delivering better, faster, greener solutions through the establishment of new lateral relationships between team members and of new systems of timely information exchange [G].

The UK New Prisons programme is described as a pathfinder project for implementation of The Construction Playbook. Sue McElroy, Deputy Director, New Prison Capacity at the Ministry of Justice, stated: “ [Mosey’s] work has influenced and enabled the adoption of FAC-1 on our New Prisons procurement as a vehicle for the creation of a multi-party sub-alliance, a supply chain system for modern methods of construction and a collaborative BIM protocol” [H].

Influencing practice guidance: FAC-1 in industry

As a result of Mosey’s work in the construction sector and in developing the UK Government’s guidelines, the governing bodies of the construction industry have begun to move away from traditional contract models and to advocate the use of FAC-1 contracts. Practice guidelines across a wide range of governing organisations have changed significantly in using FAC-1 to address problems arising from the sector’s previous reliance on fragmented two-party appointments of consultants and contractors.

Guidance on how to use FAC-1 in projects is published by the Association of Consultant Architects (ACA), the national professional body representing architects in private practice throughout the UK [I]. Constructing Excellence, a platform for industry to achieve improvements in the construction industry, also endorsed FAC-1 in 2016 [I]. In addition, the Construction Leadership Council supported FAC-1 as the medium for the construction industry to become more cost effective, including in their 2018 guidance on Procuring For Value [J].

Arcadis’ Global Construction Disputes Report 2020 summarised a survey of the UK construction industry and concluded that “Greater use of more collaborative standard forms of contracts, i.e. … FAC-1, might provide more confidence in project delivery” [K].

In September 2020, FAC-1 was endorsed as an innovative contract that can govern programmes of work using modern methods of construction. ‘Build Homes, Build Jobs, Build Innovation’ – A Blueprint for a Housing Industrial Strategy explained how “more innovative and progressive contracts reflect earlier and closer engagement with manufacturers, for instance the ACA Framework Alliance Contract (FAC-1), for long-term strategic relationships enabling one or more clients to integrate housing programmes that are delivered through smart construction linked to separate design, construction and operation contracts” [L].

FAC-1 in action: changing working practices outside the UK

The FAC-1 contract has also been accepted in several civil law jurisdictions where clients and teams wish to adopt a collaborative approach to procurement. FAC-1 has been translated for adoption in Brazil, Bulgaria, Chile, Germany, Italy, Peru, Russia and Spain, and is being used by lawyers and construction professionals on projects in Germany, Italy, Kazakhstan and Spain.

The Liscate School project in Milan was completed in 2018 in collaboration with University of Milan using FAC-1. Professor Valaguzza of the University praised “the success of FAC-1 in supporting the realisation of this project on site, including the joint management of unforeseen events so as to minimise delays and additional costs” [M]. Additionally, University of Milan adopted FAC-1 on a EUR655,000,000 public-private partnership with Lendlease to create a new campus [M].

Italian multinational energy company Enel reported: “When Enel Green Power began looking into ‘alliance contracting’ and ‘collaborative’ approaches to procurement, we quickly narrowed our focus on the work of Prof Mosey and his colleagues due to its quality, clarity and empirical support ”. Mosey provided FAC-1 training, which gave Enel Green Power the “knowledge and confidence to trial FAC-1 in practice on the procurement of a wind farm project in Spain and on other pilot projects in Brazil and the USA” [N]. The wind farm in Spain brings to life the theme of sustainability explored in the research underpinning FAC-1. The Spanish translation and adaptation of FAC-1 was launched in December 2020 at online events hosted in Chile, Peru and Spain. Enel Green Power reported: “The launch of the translations and adaptations of FAC-1 in Spain, Brazil and other jurisdictions will also assist ENEL in putting into effect our transnational collaborative procurement strategy and systems” [N].

Since joining King’s in 1991, Wintemute has actively sought suitable cases to take to court to challenge discrimination, drawing on his detailed knowledge of discrimination law worldwide to improve the rights of LGB individuals and same-sex couples. Wintemute works closely with relevant non-governmental organisations (NGOs). He has drafted third-party interventions on behalf of LGB organisations in six successful cases (and four pending cases) and represented the applicants in two successful cases in the ECtHR. He has provided informal support and advice to individuals and legal advisers in multiple cases, including the 2018 UK Supreme Court (UKSC) decision that led to civil partnerships for heterosexual couples ( R. [Steinfeld & Keidan] v Secretary of State for International Development [2018] UKSC 32). His work has influenced legal decisions establishing important new principles prohibiting discrimination against millions of LGB persons worldwide. His research was referred to in the case that decriminalised gay sex in India [A] and in the case that outlawed employment discrimination in Latin America and the Caribbean ( Duque v Colombia, 26 February 2016). For clarity, this REF case study focuses on the most significant cases in UK and EU law, and under the ECHR.

Legislative reform

Helping the Parliamentary Assembly of the Council of Europe (PACE) to encourage national legislative reforms

Wintemute advised the Committee on Equality and Non-Discrimination of the PACE on ECHR case law during a conference on private and family life for LGBTI people in March 2018 [B1, p. 8, fn. 18]. He urged the PACE to go beyond the case law of the ECtHR, as it had done in prior resolutions. Resolutions of the PACE, which provide evidence of ‘European consensus’, can be persuasive in legal argument, driving national legislative reforms and ECtHR judgments. In October 2018, the PACE adopted Resolution 2239, ‘Private and family life: achieving equality regardless of sexual orientation’ [B2]. The PACE Resolution called on the 47 CoE Member States to go beyond the case law of the ECtHR by providing for joint adoption by same-sex couples, extending automatic co-parent recognition to the same-sex partner of the parent who has given birth, and granting to same-sex couples the same access to medically assisted procreation as unmarried different-sex couples.

Obliging the police across Europe to investigate anti-LGB ‘hate speech’

In 2017, the Lithuanian Gay League asked Wintemute to represent the applicants in the case of Beizaras and Levickas v Lithuania [2020] ECtHR (41288/15) . Prosecutors had failed to investigate hateful comments posted on Facebook in response to a photograph the male couple posted of themselves kissing. Wintemute framed his legal submissions based on his research [3], asserting that the ECHR can be interpreted as imposing a positive obligation on governments to prosecute anti-LGB hate speech, and that comparable comments about a different-sex couple or a Jewish person would have been investigated. The ECtHR ruled unanimously that the Lithuanian authorities’ failure to act was sexual orientation discrimination and that they must pay EUR10,000 to each of the applicants within three months of the judgment. As confirmed by Tomas Vytautas Raskevičius, who initiated the case as an independent LGBT human rights advocate, “the Professor’s knowledge and contribution was of crucial importance in defending the rights of the applicants” and his involvement in leading the case “significantly contributed to the systematic changes in responding to the negative phenomenon of hate speech and hate crimes in the Republic of Lithuania” [C].

The judgment requires the 47 CoE countries (with a combined population of over 830 million) to investigate and prosecute anti-LGB hate speech. The European Parliament Resolution of 18 December 2019 on Public Discrimination and Hate Speech against LGBTI people (2019/2933(RSP)) recommended inter alia that Member States establish simple procedures enabling individuals to report online hateful content and to ensure that any alleged hate crime or hate speech is effectively investigated, prosecuted and tried [D]. It called on the Commission to support training programmes for law enforcement and judicial authorities [D, paras 8-10]. Raskevičius confirmed that, following the judgment, “ [Lithuanian] law enforcement agencies are more comprehensively engaged in investigating the instances of hate speech and hate crimes… Also, a working group has been founded within the Ministry of the Interior of the Republic of Lithuania… with the aim of improving the institutional response to the negative phenomenon of hate speech and hate crimes… Non-governmental organizations have started trainings for law enforcement officers” [C].

Equal pension rights for surviving same-sex spouses and civil partners

In Walker v Innospec Limited [2017] UKSC 47, the UKSC took the unusual step of disapplying the provisions of the Equality Act 2010. This had allowed employers to refuse to pay a widow’s pension where a same-sex partner had made all the pension contributions before same-sex civil partnerships were allowed. The UKSC found unanimously that the exception was discrimination based on sexual orientation with regard to pay (which includes pension benefits) contrary to EU Directive 2000/78. Wintemute supported the case by publishing articles about decisions of the lower courts [2,6], advising Mr Walker’s barristers and commenting on drafts of their written arguments.

Max Schaefer, a barrister working on the appellants’ case, stated: “Professor Wintemute’s academic work played an important role in helping develop, and externally validating, the arguments that the Supreme Court eventually accepted” [E]. Lord Kerr quoted directly from Wintemute’s article [6], accepting the argument “that, from 1980 to 2003, Mr Walker had been paid the lower ‘gay wage’ (one with no expectation that a survivor’s pension would ever be paid …), rather than the higher ‘heterosexual wage’ (one with an expectation that a survivor’s pension might be paid)” [F]. If Mr Walker divorced his husband and married a woman, Innospec would pay her a pension of over GBP40,000 per year. The judgment gives financial security not only to Mr Walker’s husband but also to all same-sex spouses or civil partners who are in a similar position.

Marriage and civil partnerships

Ensuring that bi-national, same-sex couples can legally live together in Europe

After being contacted by Arcigay, Italy's first and largest national gay organisation, Wintemute encouraged an unmarried same-sex couple to challenge the anticipated refusal of a residence permit. At that time, foreign same-sex partners of Italian citizens were not accorded any immigration rights to permit a family to live together in Italy. Italy had treated the applicants as an unmarried different-sex couple (who would be able to marry in Italy and thus obtain a residence permit), even though, as a same-sex couple, they were unable to marry. Wintemute became their legal representative at the ECtHR in the case Taddeucci & McCall v Italy (2016). Drawing on his research on indirect sexual orientation discrimination [5] and on same-sex partner immigration [2,3], he persuaded the ECtHR to apply, for the first time outside the context of religious beliefs, its reasoning in an earlier case that discrimination may include “fail[ure] to treat differently persons whose situations are significantly different” [G, p. 15]. The ECtHR ruled that Italy's failure to provide any means for a same-sex partner to qualify for a residence permit was discrimination based on sexual orientation. This judgment was the first ever by an international tribunal regarding the immigration rights of a same-sex couple.

The judgment now benefits same-sex partners from any country in the world who seek a residence permit in one of the 47 CoE countries on the basis of a relationship with a citizen. This avoided considerable suffering for many lesbian and gay couples who may have found themselves forced to live in separate countries. As the successful applicants Roberto Taddeucci and Doug McCall explained, “ [Wintemute’s] legal strategy allowed us to stay together as a couple over the entire period and enjoy a life together with our wider Italian family … Because of our sexual orientations we were deemed not worthy of equal treatment by the Italian state. Professor Wintemute skilfully took our experiences to the Court who validated the discrimination. The result was incredibly empowering” [H].

Obliging Italy to create a new, alternative registration system for same-sex couples

Wintemute drafted a third-party intervention by ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans & Intersex Association) and other NGOs in Oliari v Italy (2015) [J]. This argued that European governments have an obligation to create an alternative registration system for same-sex couples, who are excluded from marriage. Wintemute’s research-based intervention not only demonstrated why a framework for recognition should exist as a human right, but also provided quantitative research on the number of CoE Member States where marriage or other forms of recognition existed. As Arpi Avetisyan, Head of Litigation at ILGA-Europe, explained: “The third party intervention was extensively (almost in its entirety) cited and reflected in the judgment, which is very uncommon in Court’s practice. Remarkably, the Court delivered a positive judgment which very much read in line with our third party intervention drafted by Professor Wintemute” [I].

The intervention helped to persuade the ECtHR that Article 8 of the ECHR imposes a positive obligation on Italy to create a ‘specific legal framework’ for same-sex couples. The ECtHR devoted over eight pages of its judgment [J, paras 134-143] to a summary of the research [5] and arguments presented in the intervention (including Wintemute’s [5] above, cited at para 135) regarding legal recognition of same-sex couples in CoE countries and other democratic societies. The ECtHR reached the same conclusion in Orlandi v Italy (2018, para 210) with regard to same-sex couples who had married outside Italy, after citing the intervention (paras 172-175) [K].

The 2015 Oliari judgment was followed by new laws recognising same-sex couples in six countries: Cyprus, Greece, Italy, Monaco, Montenegro and San Marino. Avetisyan from ILGA-Europe recognised the wide-reaching impact of Wintemute’s contribution: “While the judgment itself has been a beacon in Court’s jurisprudence to pave the way for advancement of human rights of LGB persons, the research in Professor Wintemute’s brief has served as grounds for lawyers and policy makers to make arguments in their advocacy and litigation efforts at the national level ” [I].

In 2016, as part of the State aid modernisation programme, the European Commission published a public consultation on the Draft Notice on the Notion of Aid. The Notice transcended the technical issues of State aid, altering the distribution of powers between the national and EU levels of governance. Drafted in response to frequent requests from stakeholders, the Notice aimed to streamline and improve existing rules to provide faster and better-informed decision making. It also sought to define the legal criteria for State aid, which were contradictory and constitutionally dubious, and to codify the case law of the CJEU.

Despite such admirable goals, the Draft Notice contained important flaws. In response to the Commission’s public consultations on the Draft Notice, Ștefan and Biondi drew on their academic analysis [6] to write a policy paper [A] addressing these flaws and suggesting solutions. The specific amendments proposed were incorporated by the Commission in the revised final version of the Notice on the Notion of Aid [B]. This both improved the quality of the final document and helped to preserve national sovereignty. Without the implementation of the technical amendments Ștefan and Biondi suggested, the Notice would have been an ultra vires document, failing to achieve its full potential. Even more worryingly, such shortcomings could have gone unchallenged as judicial review is difficult in practice for such instruments. As noted by the Commission Head of Unit in charge of the drafting, “[T]he Commission services took [Ștefan and Biondi’s] comments into account and found them very useful in finalising the Notice on the Notion of State Aid. Particular suggestions made in [their] comments were taken into account in the final text in, e.g., paragraphs 61, 70, 100, 135, and 229” [C]. The Notice has had widespread application and impact across the EU.

Challenging the legal status of the Draft Notice

Ștefan and Biondi’s analysis [6] emphasised the importance of specifying the legal status of the Notice and its impact on both general principles of law and previous legal instruments. These recommendations were taken into consideration in the final text [B, para. 229]. The Commission implemented these suggestions, adding a commitment to constitutional principles such as transparency and legal certainty that gave the Notice more caution in order to avoid unintended repeals of previous guidance [B, para. 229]. These changes not only ensured the legality of the document and its consistency with CJEU case law, but also reinstated and promoted the Commission’s commitment to legal certainty, openness and accountability, all essential for the EU’s supranational democracy. This improved the legal status of the Notice, which ultimately enhanced rule of law protection in the EU.

Improving specific provisions of the final text of the Notice

Relying on substantive research on State aid [2,3,4,6], Ștefan and Biondi offered concrete recommendations to improve several technical elements of the Notice. As confirmed by the Commission Head of Unit [C], their suggestions contributed to the following technical points:

1. They helped better define the conditions under which public spending on services of general economic interest could be allowed [B, para. 70]. This enabled a wide array of activities beneficial to the community to be carried out, such as, in a recent case before the CJEU, the enhancement of local Italian railways [D].

2. The criteria to determine whether transactions between businesses and the State take place under normal market conditions were better outlined [B, section 4.2.3]. The Commission acknowledged Ștefan and Biondi’s contribution to establishing the appropriate benchmark to distinguish between activities undertaken by the State in its capacity as market participant or as public authority [B, para. 100]. This distinction is vital, as it is not always easy to determine whether the authorities grant financial aid to the economy or whether they behave like any other rational investor in the market. Following Ștefan and Biondi’s suggestions, these provisions were altered and have had an impact on judicial practice. For example, they assisted a Dutch court to determine whether the offering of public spaces for advertising was based on sound transparent market criteria [E, para. 4.1.2.6].

3. Following Ștefan and Biondi’s suggestions, the Commission streamlined the criteria employed when determining whether a State measure was discriminating unjustly between different firms [B, para. 135]. The incorporation of this suggestion proved useful to settle a dispute, at the EU level, where the Court’s Advocate General found that a national tax measure did not breach EU State aid rules in Germany in 2018 [F, para. 149].

4. Ștefan and Biondi’s contributions changed the way in which the Notice defined the notion of State control over public resources, a crucial criterion that needs to be met for the activation of the Treaty prohibition on State aid [B, para. 61]. As such, Member States now have a bigger margin of manoeuvre to help their economies, which is crucial, especially in light of the COVID-19 crisis.

In broad terms, Ștefan and Biondi’s recommendations improved the quality of the final document and helped to preserve the national sovereignty of Member States. Without these technical changes, the Notice would have been ultra vires and could have been subject to challenge in the Courts.

Impact of the Notice on administrative and judicial practice in the UK and EU

The Notice has rapidly become the main instrument relied on in relation to State aid, both at the EU and at the national level. It shapes the decision making of national authorities on public spending, with a direct impact on local communities and industry. It distributes powers between the national and EU levels of governance, enabling better and more accountable public spending. For example, ministries of Finance use the Notice extensively. In France, it is relied on at length in the national rules on State aid [F], and in countries such as Slovenia, the Notice is referred to in around half of the cases dealing with the notion of aid [G].

Litigation in the field of State aid varies, but since the Notice was issued, judges frequently refer to it at the national level [G]. In the UK, the High Court and the Court of Appeal relied on the Notice to determine the conditions under which a City Council could lease a sports ground, thus impacting local communities [H]. In the Netherlands, the Notice was instrumental in a case allowing funding for initiatives promoting local culture [I].

The Notice has also been referred to in 15 cases dealing with the notion of State aid before the CJEU. These are landmark judgments, which constitute reference points for subsequent case law. In one such judgment, the CJEU relied on the Notice to enable Spain to introduce supplementary taxation on the large retail sector [J, para. 39]. This policy, aimed at environmental protection, forced business to act responsibly and allowed sustainable outcomes to benefit society at large. In another case, the CJEU relied on a specific paragraph of the Notice [B, para. 135] to confirm the sovereign right of Germany to grant tax relief to firms, allowing German businesses to benefit from tax exemptions to restructure their operations and save jobs. There is thus a concrete impact on the distribution of powers between the national and EU levels of governance, enabling better and more accountable public spending [K].

In the UK, the Notice was used within the Department for Business, Energy & Industrial Strategy (BEIS) as an important source of information and guidance when drafting the 2015 BEIS State Aid Manual, which acts as the UK’s own guide to State aid rules and how they should be interpreted and applied. A document of high national relevance, it is meant to “help public sector officials understand the state aid rules and how they apply in practice” [L]. As Deputy Director, Construction at the BEIS stated: “The work of Oana Stefan and Andrea Biondi on soft law, which was submitted as part of a formal public consultation by the European Commission, has made a valuable contribution to the development of the Notice. The research undertaken … identified a number of areas where the text of the Notice could be clarified or supplemented to aid comprehension and ensure that the Notice can be more easily understood and applied, and a number of the proposals made have been incorporated into the revised Notice. This is a good example of how academic research can be applied to positively influence the development of public policy and achieve beneficial outcomes within society” [M].

The financial and banking crisis of 2007–09 had a particularly devastating effect on the Italian banking sector, which was characterised by its many small and medium-sized banks that were trusted by citizens because of their long-established links with local communities. There was a risk of several banks becoming insolvent, with the potential for taxpayers having to compensate depositors or depositors losing their savings, as well as businesses losing access to finance. Bank failures can cause an increased risk of systemic default, having negative repercussions for the financial industry as a whole. Thus, the issue of State aid and State regulation is one of international, as well as local, concern.

By 2015, Italy had the largest number of non-performing loans in the entire European banking sector, peaking at EUR349,000,000,000. These were loans characterised by borrowers no longer paying interest to lenders. To counteract this, the Italian Government set up a mandatory deposit guarantee fund to save failing banks. The scheme was operated on behalf of the Italian Government, with banks obliged by law to participate. The Italian Government exercised considerable influence over its operation, and the Bank of Italy had to authorise any rescue loan. In December 2015, the European Commission determined that this support constituted unlawful State aid. Its view was based on its purely economic rationale for State aid, a view that had already been contested by Biondi’s research outlined above [1,4,5].

The research-based solution: The Atlas Fund designed by Professor Biondi

On 5 January 2016, Biondi was appointed as Legal Advisor to the Italian Prime Minister due to his expertise on State aid and EU law and his innovative reworking of the definition of ‘State aid’ [1,4,5]. Judge Antonella Manzione, then Head of the Italian Prime Minister’s Legislative and Regulatory Affairs Department, asked Biondi to join her committee of experts to address EU law issues in general and EU State aid law issues in particular. Biondi was tasked with assisting the Italian Government with the establishment of an EU regulation-compliant ad hoc fund in order to rescue the ailing banks [A]. Judge Manzione chose Biondi on the basis of his “international standing and his numerous contributions of influential scholarship on the subject of EU State aid law ” [B].

In January 2016, Biondi was instructed to work on a new legislative framework – later named the Atlas Fund after the Titan who bore the weight of the heavens on his shoulders – to replace the scheme rejected by the European Commission. In drafting the new scheme, Biondi drew upon his research on State aid categorisation, focusing on the degree of State involvement [1,2], and on economic transactions carried out by the State to rescue failing banks. A key question was whether such transactions were carried out in line with normal market conditions (MOP) [4,5].

Biondi’s novel framework and substantive recommendations for the scheme proved essential in changing the approach of the European Commission, which found the scheme compatible with EU law. The scheme had the following significant and innovative features:

1. It was based on a voluntary deposit guarantee fund, managed by a private equity fund manager.

2. It was financed by commercial banks, to exclude involvement from the Government (except in relation to the regulatory framework of the scheme). As a result, the cost to taxpayers was kept to a minimum, being limited to costs associated with the Government’s regulatory functions, rather than to its role as a financial guarantor.

3. It contained provisions that its loans would be subject to the rules applicable to commercial loans and guarantees.

4. It emphasised protecting depositors, through ad hoc guarantees or direct compensation, as a key factor in determining the scheme’s legality. This was based on Biondi’s argument [4,5] that social needs should be included in assessments of fair market competition.

Gaining European Commission approval and implementing the Atlas Fund

Biondi’s intervention had two major areas of impact:

• it changed the Commission’s view on the purely economic rationale of State aid to allow social factors; and

• the scheme devised by Biondi balanced the economic considerations of the Commission (the MOP) and social considerations [B].

The European Commission approved the new scheme on 10 February 2016 [C]. The ‘Atlas decision’ is one of the very few (out of around 500 Commission decisions regarding State aid to banks) that the Commission qualified as ‘free of State aid’ and thus lawful under EU law [D].

The Commission also expressly acknowledged that: “in situations where banks that have mis-sold financial instruments have left the market, it is up to Member States to decide whether to take exceptional measures to address [the] social consequences of mis-selling as a matter of social policy. This falls outside the remit of State Aid rules” [E]. This was a significant change from the view that the Commission expressed towards the mandatory deposit guarantee fund developed by the Italian Government in 2015 and was enabled by Biondi’s research-based intervention. Mario Draghi, the then chairman of the European Central Bank, described the Atlas Fund as a first “step in the right direction ” [G, (i)].

After receiving the European Commission’s approval, the Italian Government swiftly implemented the new scheme on 8 April 2016 [F]. Articles 3 to 13 of the Decree-Law, which Biondi drafted, were reproduced verbatim in the final text. As Judge Antonella Manzione wrote: “Prof Biondi not only offered his advice but in some cases drafted specific provisions, deleted others and designed their replacements… I can strongly express my firmly held opinion that Professor Biondi’s contribution was of the highest quality and has had a decisive and direct impact on the outcome of several legislative proposals now fully implemented and enforced ” [B].

Beyond legislation: The real beneficiaries of the Atlas Fund

The Italian authorities launched the Atlas Fund in 2016 to support banking system stability. As explained in an International Monetary Fund Working Paper, the Atlas fund was “aimed at backstopping the capital issuance of smaller (distressed) banks and, possibly, buying junior tranches of NPL securitization transactions ... [It was] funded by the largest Italian banks, nonbank financial institutions and banking foundations, with an 8 percent minority stake held by the largely publicly-owned Cassa Depositi e Prestiti (CDP)” [H, (i), p15].

The Atlas Fund had initial capital of EUR4,250,000,000, guaranteed by 67 private undertakings over five years. The cost of all Atlas operations was close to EUR11,500,000,000 for 2016–19. In 2017, the Atlas Fund used around EUR2,500,000,000 to prevent the collapse of two medium-to-large banks and ensured that their depositors were protected. The Fund also purchased 99% of the shares of Banca di Vicenza [see analyses in H, (i), p15 and H, (ii), p25-26]. Matteo Renzi, the then Italian Prime Minister, stated “thanks to Atlante [Atlas], Vicenza is saved” [G, (ii)].

After the bailout of Vicenza, Atlas guaranteed a EUR1,000,000,000 capital call at another regional bank, Banca Veneta, purchasing around 70% of its shares, thus rescuing the bank. The Atlas Fund was later used to rescue four smaller local banks: Banca Marche, Banca Etruria, CariChieti and CariFerrara. In total, the Fund paid EUR181,000,000 in compensation to depositors who would otherwise have lost all their money [G, (iii)]. This is nearly half of the EUR340,000,000 of toxic obligations sold by the banks to depositors (or the savings that would otherwise have been wiped out) [G, (iv)].

The shoulders of the Atlas Fund proved capable of carrying at least some of the burden of the continuing impacts of the devastating financial crisis of 2007-09, which affected not just Italy, but also elsewhere in Europe and the wider international financial world. Its pragmatic approach played a role in reassuring markets by preventing financial panic from spreading. In 2017, the European Commission approved ‘Atlas 2’ to replace the Atlas Fund with an increased availability of capital [I].

The ILO estimates that, by its definition, over 40 million people are in some form of slavery today. The lack of a universally agreed definition of modern slavery makes it challenging for policymakers to prevent and address this problem. King’s research has helped policymakers to interpret and develop legislation that protects victims and holds the perpetrators of modern slavery accountable. Addressing major existing issues within the UK legal system, in developing countries in Asia and the Middle East, and in international law, the research has contributed to the fight against modern slavery and human trafficking.

Implementing a victim-centred approach in the UK’s Modern Slavery Act

Juss’ research-based recommendations contributed to the passing of the Modern Slavery Act 2015 (MSA), which incorporates the victim-centred approach advanced at King’s [A]. This was enabled by his participation as the sole human rights expert in the Slavery Working Group of the Centre for Social Justice (CSJ). This highly influential political think tank reviewed modern slavery in the UK. The group’s findings resulted in the 2013 seminal report It Happens Here: Equipping the United Kingdom to Fight Modern Slavery [B1]. Lucy Maule, senior researcher at the CSJ, gave evidence during the first sitting of the Public Bill Committee on the Modern Slavery Bill, citing some of the report’s recommendations based on Juss’ research [C, p.2]. For example, she identified the NRM’s lack of transparency as a concern: Juss had similarly questioned whether the NRM was sufficiently independent and to what extent its decision-making processes were influenced by elements of immigration control [2]. Consequently, legislators repeatedly selected Juss’ victim-centred recommendations included in the CSJ report throughout the enactment process of the MSA [C]. The CSJ acknowledged Juss’ contributions, saying it was “extremely grateful for the valuable insights and expertise provided by Professor Satvinder Juss in the drafting of the CSJ report, as they have contributed to the passing of the Modern Slavery Act, which has played, and will continue to play, an immensely important role in the UK’s fight against slavery and human trafficking” [B2].

The MSA not only included a commitment to protect victims of modern slavery in its preamble, but also implemented many other research-based recommendations [1,2,3] put forward by Juss in the CSJ report. For example, it defined the meaning of ‘consent’, emphasising that in the context of human trafficking, where a person has arranged or facilitated the travel of another person to exploit them, the consent of the victim is irrelevant [A]. The MSA also addressed Juss’ concern about the State’s excessive focus on prosecuting victims for immigration or criminal infractions rather than protecting them [A]. Provisions for the protection of victims of slavery through their non-prosecution were ultimately adopted under s45 of the MSA [A]. Other recommendations implemented by the Act include increased rights for overseas domestic workers, a reform of the NRM [D1] and the requirement for large UK companies with a turnover of more than GBP36,000,000 to report measures taken to ensure that their supply chain is free of modern slavery [D2, p.5].

Influencing the ILO’s policy and fighting human trafficking in Asia and the Middle East

Since 2013, Kotiswaran has been a member of the advisory board of the ILO’s Work in Freedom (WIF) Programme (funded by the UK Department for International Development). Its aim is to reduce vulnerability to trafficking and forced labour for women undertaking garment and domestic work in Bangladesh, India, Jordan, Kuwait, Lebanon and Nepal. Kotiswaran’s work has directed the policy component of WIF away from criminal justice approaches to trafficking, to a labour law and development approach. Igor Bosc, Chief Technical Adviser of the WIF, said that “Kotiswaran’s paper [4] grounded the rationale for our policy work.” It prompted several policy changes, including ending its support for anti-trafficking vigilance committees, which were creating problems for women seeking employment abroad [E].

Kotiswaran’s critical analysis of policy responses to sex work led the WIF programme to include sex workers when engaging with women workers and forced it to review its perspectives on gender and informality. Bosc stated that “the WIF shifted from a service delivery approach to a self-empowerment approach informed by an adaptive learning strategy advised by Prof Kotiswaran” [E]. The UK’s Independent Commission for Aid Impact praised the WIF, mentioning that “it had made individuals better placed to make informed choices about whether or not to migrate and, if they chose to proceed, equipped them to make safer choices” [F, p.37].

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Influencing the UN debate on State responsibility and shaping legal change in the UK

King’s research on State responsibility for modern slavery [6] contributed to a shift in the narrative of the international public discourse on modern slavery from non-state actors to States. This led to a ground-breaking judicial decision in this field [K]. Following the publication of the policy paper based on their research [6], Webb and Garciandia launched their legal recommendations at the UN Headquarters in New York to representatives of States, international organisations and civil society organisations [I1]. Urmila Bhoola, the UN Special Rapporteur on contemporary forms of slavery, including its causes and consequences, was enthusiastic about their novel approach. She referred to their research in her report to the Human Rights Council [I2]. During the 42nd Session of the Human Rights Council, she based her recommendations on their research, stressing the need for states to hold each other to account in relation to modern slavery [I3]. [Text removed for publication].

The UN report was read widely, including by Nusrat Uddin, the legal aid solicitor working on a case in front of the UK Employment Tribunal in which a Saudi diplomat was arguing that diplomatic immunity protected him against claims of human trafficking and modern slavery in a case of domestic servitude [K1]. The solicitor asked Webb and Garciandia to work on the case pro bono as she found “their research innovative and unique” and believed “it could help shape strategic litigation in this field” [L]. Uddin’s legal strategy was informed by their research recommendations [6] and led to the ground-breaking Tribunal ruling that diplomatic immunity does not protect against claims of human trafficking and modern slavery [K1]. The decision was widely shared among civil society organisations engaged in strategic litigation in the UK, USA and continental Europe. Uddin stated that Webb and Garciandia’s research “directly influenced and helped shape crucial legal change in this field, contributing to developments in courts concerning a new interpretation of the commercial exception to diplomatic immunity” [L]. The decision was appealed to the Employment Appeal Tribunal and Webb appeared for the respondent [K2] Although her arguments were rejected and the appeal was allowed, the judge decided to issue a ‘leapfrog’ certificate pursuant to section 37ZA(1) of the Employment Tribunals Act 1996 because of the importance of the issues raised by the case [K3]. This meant that a further appeal could proceed directly to the UK Supreme Court. The Supreme Court on 9 November 2020 granted permission to appeal, recognising that the case raised a point of law of general public importance. The case was one of only two cases featured in the Senior President of Tribunals’ Annual Report 2020, again highlighting its public significance. The case will be heard by the Supreme Court in the autumn of 2021 and the legal submissions will likely draw heavily on the arguments made by Webb in the Employment Appeal Tribunal. The Supreme Court’s decision will be critical to diplomats in the UK, who bring to the country an estimated 200-300 migrant domestic workers each year.