Durham University's Law School is hiring!

 As we enter my fifth and last year as Dean of Durham Law School, we are hiring in several areas:

Assistant Professor of Biolaw

Assistant Professor in Trusts Law

Assistant Professor in International Law

Assistant Professor in Commercial or Corporate Law

Assistant Professor in Employment Law

Professor of Global Law

Professor of Commercial or Corporate Law

Assistant Professor in Tort Law

Assistant Professor in Intellectual Property Law

ALL POSITIONS ARE FULL-TIME AND PERMANENT.

Please send any queries directly to me!

Joy Chaudhuri, obituary

In 1996, I was starting my final undergraduate year at William Paterson University. I had begun a music major, but by graduation day I had double-majored adding a fifth year to complete all requirements for a BA in Music and Political Science. I was taught by several brilliant music professors -- Hugh Aitken, Jeffrey Kresky and John Link come to mind -- and several terrific political scientists like Martin Weinstein, John Mason, my advisors and close friends Steve Shalom and Maya Chadda. 

The latter two - Shalom and Chadda - had been supportive of all my interests, including in political theory, but were big influences at the time in my looking critically at international relations with a specific focus on South Asia. My first work as a research assistant was for Chadda's book on democractization in India, Pakistan and Nepal (and first time my name appeared in any book when noted in the acknowledgements). If not for Steve or Maya, I would not have become an academic.

With my interests in political theory, IR and South Asian politics, I pursued various graduate programmes and came to apply to Arizona State University where I did my first MA in Political Science. A number of colleagues hugely impressed me - and still do - like Terence Ball (who joined in my second year), Jack Crittenden and Avital Simhony. But the main draw for me at that time was Joyotpaul ("Joy") Chadhuri.

Joy was brilliant, hilarious, engaging, supportive and eccentric in a majestic combination of these qualities and more. He nurtured my interests, but pushed me to explore the more philosophical side of political theory (as he had studied Philosophy earlier too). While I had taken a few Philosophy electives at William Paterson (including a highly memorable class with Daniel Kolak), I became far more serious about this at Arizona State. 

He seemed to know something about everything. He was a proud Bengali who told me of how he lowered the UK flag at his school in India to raise the newly independent country's flag claiming that for Hobbes life might be "short, nasty and brutish" but in India it was "short, nasty and British". When he learned I had studied music and played guitar primarily, he reminded me of the Indian origins of the instrument as "singing wire".

He encouraged me to read philosophers and works that stay with me like Santideva on the ways of the bodhissatva and work by Nagarjuna exploring a wide range of Hindu and Buddhist figures, but also Jain and Islamic political thought. While I've meant to write at some point about Ibn Kaldoun's thought, Joy's teachings (and anecdotes) about Jain philosophy and allegories left a mark -- and I developed them in a paper on the ethics of meat eating published a few years ago in Think.

And being taught about non-violence from the Jain tradition as well as Buddhist traditions has had a profound effect on my thinking. Their different understanding about self-defence and opposition to all forms of violence (especially for Jain) plays a central role in a major paper (and probably short book) I'm working on about why the just war tradition is based on a mistake. (Wait for the paper to get the full picture - or invite me to give the paper to your department!)

At the time, few in class seemed to appreciate my points as I would challenge individualistic conceptions of the person and the good referencing figures from classical Indian thought. This became easier when I took my first class - with Avital Simhony - on Hegel and the New Liberals. It was there I first studied Hegel and TH Green quickly seeing that I could make similar kinds of points but through more familiar Western figures like Hegel. This has had a very strong influence on me, too. Later I would pursue a MA in Philosophy at UCD (under Brian O'Connor) and then a PhD in Philosophy a Sheffield (under Bob Stern) to continue working on Hegel, and the topic of my first monograph.

But my main interests were in Indian thought. My dissertation under Joy was a very unusual topic of epistemology in Socrates and Mahayana Buddhism noting the many comparisons. I've done little comparative work since, but have still dabbled in Indian philosophy publishing a few papers and I'm Notre Dame Philosophical Reviews main editor for work this area.

And don't jest about the dissertation topic. Years later at a Hegel Society of Great Britain conference at St Edmund Hall, Oxford, there were various talks exploring Hegel on religion. Several speakers compared and contrasted Hegel's insights with others like Nietzsche. I don't recall my specific argument, but I had raised an objection about a comparison between Hegel and Nietzsche noting their different views on Buddhism. During the coffee break, one of the conference delegates -- Dr Rowan Williams, then Archbishop of Canterbury (and a serious scholar on the reception of Hegel's theological work in the Russian Orthodox tradition) -- remarked that he thought my point was a bit unfair on Nietzsche. (And I never thought I'd hear something like that from someone in his position - but Rowan was and is a remarkable man.) Our conversation had ended with my saying that, while I was not a Buddhist, if I was, then I'd be a Mahayana Buddhist motivated agreeing more with their view of the self and other. To my surprise - and delight! - Rowan replied that he was not a Buddhist either (in case I needed reminding) but, if he had to choose, he'd be a Mahayana too. (And I most certainly never thought I'd hear anything like that - which only endeared me to him even more.) But if not for Joy, I might not have delved deep enough to appreciate the differences between the Mahayana, Theravada, Tibetan, Zen and other Buddhist traditions.

I'm sometimes asked about my close friendship with Martha Nussbaum at Chicago. This is another series of wonderful stories, but one core reason is our mutual interest in Indian philosophy that stays with me. Chadda gets credit (or blame) for first opening my eyes to this new world for me as it was then, but it was Chaudhuri that did so very much to encourage my passion and interest.

I served as a teaching assistant for Joy during my time at Arizona State. I supported his teaching political thought and a class he taught on "Legal Theory". This was my very first introduction to the subject (with the daunting challenge of having to mark undergraduate essays in a subject that I had not formally studied as an undergraduate myself). This has left a significant mark as I discovered how much I enjoyed jurisprudence which he introduced me to. After my MA, when I went to UCD, I took a class on jurisprudence (with Gerard Casey) and then, for my PhD, devoted a quarter of my thesis to Hegel on legal theory (comparing his views to those of Ronald Dworkin) and a further chunk to his theory of punishment. Joy gets much credit for introducing me to Hart, Austin, Dworkin, Fuller and more -- and, of course, many years later jurisprudence has become a part of my calling.

I further learned from Joy as a teacher. He taught the political theory core on my MA. This suited me beautifully as my interest - like his - was primarily historical and oriented towards non-Western ideas. So a class focused mostly on the history of political thought and ending with work on engaged Buddhism fit the bill. During this time, he fascinated me with the work of Dr Ambedkar, a hugely significant figure in India's independence.

I also sat his South Asian Politics class. This was more difficult. The class met Mondays, Wednesdays and Fridays for 50 minutes starting at about 7.30am. Joy would enter with his walking stick and little else. He would sit on the front table and, in an engaging conversational style, would enlighten as much as he would entertain.

Joy was also eccentric. He taught kung fu (if I recall) for many years and would regularly invite graduate students to punch his stomach to show his fitness. Of course, none of us dared as he was already nearing retirement at that time. But I know of one fellow student who agreed (happening after I left ASU) and, well, it didn't quite go as either imagined. But that was Joy. Full of life and ready for anything.

I owe Joy so much. He taught me more about curry than about anyone else long before I moved to England. He believed in me and my academic career at times I struggled to. At a time when I needed someone to champion me to support my continuing studies, Joy had my back. And he was a great example of how to be an engaged teacher.

I understand he has recently passed and saddened very much. Joy - I will miss you. And thank you. For everything. You touched my life and I am in your debt.

I'll end with a story he liked to tell. An old man was walking up a mountain. Along the way he lost various possessions including his mandala, his walking stick and more until it was just him alone - an blind - at the mountain's summit. "It was only then that he could see," Joy would say with his infectious smile. I very much hope Joy is in that same heavenly place.

Ok, one more. He also used to like a Buddhist parable where a man gave his life for his dog. (Joy loved his dogs.) And in so doing, he reached nirvana. Enjoy nirvana, Joy.

Adler's "Measuring Social Welfar"

I've just received a wonderful new book in the post: Matthew D. Adler's Measuring Social Welfare: An Introduction (OUP 2019). A fabulous, insightful book of one of the most powerful tools for evaluating government policies. VERY HIGHLY RECOMMENDED!

Durham Law School hiring -- ALL AREAS!!

Many apologies for slow blogging for a while. I blame heavy duties as Dean - all coming to an end in about 18 months when my five year term ends (and two years of research leave begins!).

A task that has kept me very busy has been our HUGE recruitment campaign. The Law School at Durham University is doubling the academic staff and this is our biggest round. 

ALL POSITIONS ARE FULL-TIME AND PERMANENT/TENURED:


Chair in Commercial & Corporate Law

Associate/Assistant in Intellectual Property Law (2x)

Associate/Assistant in Biolaw

Associate/Assistant in EU Law

Associate/Assistant in International Law

Assistant Professor in Commercial & Corporate Law

Assistant Professor in Criminal Law & Criminal Justice

Assistant Professor in Family Law

Assistant Professor in Private Law

Assistant Professor in Public Law & Human Rights

Assistant Professor in Legal Theory (political theorists & philosophers welcome)

Assistant Professor of Law (OPEN)

Please send any questions DIRECT TO ME. This is a major opportunity to help build a global top 50 law school. Check us out: http://www.durham.ac.uk/law  

15 facts that prove the Tory immigration system isn’t fit for purpose

I regularly advise the Labour Party's front bench on immigration law and policy issues, including on questions to put to government. During this Parliament, these enquiries have made a number of surprising findings. I've put the top 15 in a brief piece here.

Theresa May's poison chalice - for whoever succeeds her

 I wrote a piece on the Tory leadership contest shortly after it started, but did not publish at the time. Thought it might be fun to see how predictions actually did play out since....

Theresa May stepped down as leader of the Conservative Party last Friday after attending D-Day commemorations and receiving US President Donald Trump for a state visit. May will remain as Prime Minister until a new leader of the Conservatives is named.

 

The process is usually straightforward. Any Conservative MP needs only a couple supporters to get his or her candidacy considered. Tory MPs then vote for their preferred candidate with the name receiving the least votes being eliminated in each round until there are two names left. The final names are then presented to Conservative Party members for a vote. The winner becomes leader of the party – and the next British Prime Minister.

 

Last time, the process was only partly used. This is because a number of candidates either decided against standing for leader, like Boris Johnson, or dropped out during the contest, like Andrea Leadsom. Now the process has been changed while candidates have been making their pitches to supporters, such as raising the number of required supporters. This was justified to help shrink the field but the only effect has been to remove more pro-Remain and soft Brexit voices from consideration that will make some think the move was partisan-driven.

 

There are a large number of MPs in the running. The frontrunner is Boris Johnson – and never before in modern times has the Tory frontrunner won the contest. Johnson may win regardless of history being against him. It’s important to understand why. After speaking to a number of Tory activists and MPs, it has been surprising to see that their support is not for Boris but a wager that he’ll win and if so their support might win them a place in his team. This is not about backing the best candidate or vision, but a collective act of self-promotion – and for some self-preservation. Hardly an inspiring position to be in.

 

His main rivals appear to be Jeremy Hunt, who replaced Boris as Foreign Secretary, and Dominic Raab, who was temporarily Brexit Secretary. Hunt is the Tory mainstream candidate who has continuously served in Cabinet since David Cameron was Prime Minister. He is also the softest on Brexit. Raab, who achieved virtually nothing in his brief time in Cabinet, has courted controversy by declaring he’d effectively suspend Parliament from meeting until after 31 October to ensure Brexit happened deal or no deal.

 

Both are unlikely to succeed. Hunt was an unpopular Health Secretary and has flip flopped over what kind of Brexit, if any, he would support. He has been in favour of May’s current deal rejected by Parliament several times. Raab has also not been consistent on Brexit and his aim to stop Parliament from meeting – while MPs continue to receive full pay – for months so that Brexit can happen one way or another appears an overly reckless and partisan approach to the general public.

 

The remaining candidates have struggled to get attention or command support from their fellow MPs. Andrea Leadsom has been consistent on Brexit and was the last rival to May in the previous contest, but she has failed to garner more than a handful of supporters. Esther McVey’s push for a No Deal Brexit has been seen as extreme and economically damaging.

 

Most curious of them all is Home Secretary Sajid Javid, who holds May’s previous Cabinet position. He has publicly called for big increases in police and a softer approach to immigration, including students, that directly contradict the Prime Minister and, until now, Javid’s own repeated claims to the contrary.

 

Overall, it seems they are all – from Johnson to Javid – united in the view that there must be Brexit. But they no longer argue Brexit is best for the country, but rather necessary for the continuing survival of their political party. Their collective problem is that the public did not vote for Brexit by any means or at any costs. The public were promised that Britain would be better off and the benefits would extend to every region of the UK. Getting to Brexit only addresses the most pressing crisis facing the Tories, but does not make their problems go away.

 

However, the bigger political question might be not who might become Prime Minister, but what difference will this make to Brexit? All candidates have rejected calling a general election yet each thinks only he or she can make a difference in making Brexit a reality. But without a new election, the Tories are still without a majority in Parliament and so none of the tax cuts, Brexit plans, etc they cannot pass now will succeed in future. Only the Prime Minister is changing and not who the MPs are. A general election creating a new Parliament and potentially different numbers of MPs across the major parties seem the only way to break the current deadlock without a second referendum.

 

A further political question is whether whoever becomes the next Prime Minister will complete his or her first day in office. This is because it is almost certain a vote of no confidence will be held in the leader that could force a general election. At the moment, only the Tories look likely to get stung if an election took place. Since they do not control a majority in the House of Commons, this makes it all the more certain such a vote could succeed – and the balance of power shift fast under the gaze of whoever succeeds May in the next days.

 

Thom Brooks is Dean of Durham Law School @thom_brooks

Fulbright Scholar Award -- opportunities at Durham Law School (UK)

• Fulbright Scholar Award (USA – UK and UK - USA):  

 

Applications are now invited from academics in the USA to apply for the Fulbright Scholar award.  Monthly stipends are offered to cover living costs. The reciprocal programme for UK academics to lecture and/or research in the USA opens in August ’19 for 2020-21 onwards. More information can be found here. 

 

 

Readers should contact me if interested in spending time at Durham Law School. As the Dean, it would be a pleasure to host!

Restorative Justice - we can have more of it, if we expand its options

My submission to the Labour Party's Policy Commission:

Restorative Justice (RJ) is a progressive means to a more effective end. Research shows it leads to up to 25% less reoffending at 1/9th the cost - and with vast improvements in both victim and offender satisfaction in process.

But it's currently primarily used for teen offenders for non-violent crimes. How to get it better embedded and more widely used?

Two keys to unlocking this:

First is RJ requires offenders to admit guilt. They are then free to agree or reject contract at end of meeting. If they fulfil it, they are 'restored' avoiding court, prison and have a clean record. But if they don't do so, the consequences are almost trivial: a new process might start all over again or proceed to court where previous admission of guilt in RJ is inadmissable.

So first recommended change is to say RJ matters and an admission of guilt to victims counts. End inadmissibility of previous guilt confession. Consider further penalities, including suspended sentence for violent offenders who break RJ contract.

Second is RJ options. These include non-punitive measures almost by definition: community sentences, drug and/or alcohol treatment, cognitive behaviour treatment sessions, etc.

It's certainly true that a punitive system is problematic and, as found, can be very counterproductive. Progressives shoudl support a less punitive system.

While clear a punitive-driven approach is mean spirited and counterproductive, it is also clear that no punitive options doesn't enable 'restoration' in every case.

So second recommended change is greater range of options for different kinds of offences (perhaps categorised A, B, C) where in some exceptional cases hard treatment in the form of residential drug and alcohol treatment, etc is on offer.

These more taxing options are justified purely on grounds of restoration where less taxing options ineffectual or likely to be so. They could build confidence that RJ is no 'easy' option - nothing easy about receiving treatment, doing community sentence, etc. - with added teeth of consequences if contract broken.

I note the greater use of RJ - even with more taxing options - will necessarily reduce the punitiveness of the overall system.

I've referred to this different approach in my research as "punitive restoration" only to highlight the more taxing nature.

Capabilities, Freedom and Severe Poverty

Appearing in Thom Brooks (ed.), The Oxford Handbook of Global Justice. Oxford University Press, 2019

Abstract:

Severe poverty is a key challenge for theorists of global justice. Most theorists have approached this issue primarily by developing accounts for understanding which kinds of duties have relevance and how responsibilities for tackling severe poverty might be assigned to agents, whether individuals, nations or states. All such views share a commitment to ending severe poverty as a wrongful deprivation with profoundly negative impact on affected individuals.

While much attention has prioritised identifying reasons for others to provide relief, this chapter will examine the nature of the wrongful deprivation that characterises severe poverty. One influential view is championed by Martha Nussbaum in her distinctive capabilities approach. An individual might be considered to experience severe poverty where she is unable to enjoy the use of her capabilities which should be available to her. But this position raises several questions. Take the fact that about 1 billion people are unable to meet their basic needs today. Would the capabilities approach claim the number is much higher given its wider grasp of human flourishing beyond mere material subsistence – and what implications would flow from this? Or would the capabilities approach claim only a portion of those unable to meet their basic needs are in a wrongful state because their circumstances are a result of free choice – and what would this mean? These questions indicate a potential concern about whether the approach is over- or under-inclusive and why.

This chapter will proceed by first providing a general overview of Nussbaum’s capabilities approach providing an indication about how her list of ten capabilities might be reformulated differently. The next section applies this approach to severe poverty in a critical discussion of how such poverty is best understood within the capabilities framework. The penultimate section considers the importance of freedom and choice that underpins the approach and its implications for how we apply it to severe poverty. The chapter ends with some concluding remarks about the broad limitations for understanding severe poverty as a kind of capabilities deprivation.

READ HERE

Climate Change Ethics and the Problem of End-State Solutions

The Oxford Handbook of Global Justice. Oxford University Press, 2019

Abstract:

How best to response to climate change is one of the most pressing challenges facing us all. There is no uncertainty about whether it is happening, only the likely negative effects beyond the short-term. The need for a compelling analysis of what to do is more than a question of justice, but a matter of human survival. The stakes could not be higher.

Proposed solutions come in one of two approaches. Each takes a different route to addressing the negative effects of climate change. The first is conservationist and seeks to minimise these effects by reducing, if not eliminating, them by bringing climate change to a stop. This can take form of advocating the use of an ecological footprint or implementing a polluter pays principle. The second is focused specifically on adaptation mostly through technological advances to help us endure climate change by minimising its effects on us. Many theorists advocate some use of both approaches in tandem as climate change is happening making necessary some form of adaptation and conservationism together. Yet it is also clear that most give greater weight to either conservation or adaptation as the primary mode of securing climate change justice.

The dilemma for these proposed solutions is in their aim of being a solution to the problems that climate change brings. In short, they mistake the kind of challenge that climate change presents us. This is what I call the problem of “end-state” solutions. It is where we attempt to bring to an end a circumstance that might be influenced positively or otherwise by our activities, but beyond our full control. So to claim a so-called “solution” to such an everchanging problem could make it better or worse without concluding it. If climate change is this kind of problem – and I will claim it is – then end-state “solutions” can be no more than a band aid (or sticking plaster) and the nature of our challenge is different requiring an alternative future strategy. This chapter will set out how the problem of climate change is understood through attempted solutions that do not succeed. It concludes with some ideas about why this matters and the arising implications for how we should think about climate change justice beyond the false prism of end-state solutions.

READ HERE

Introduction to Plato's The Republic

"Introduction" in Thom Brooks (ed.), Plato's The Republic. New Delhi: South Asia Press, 2019.

Abstract:

Plato’s The Republic is the greatest work by one of the greatest philosophers. This short essay is a general introduction to the overall structure presenting the key ideas and themes. The essay is published in a new edition of The Republic (2019).

READ HERE

Second Referendum only choice if Parliament gridlocked, says advisor

An expert who advised the Electoral Commission on the wording of the EU Referendum is recommending a second referendum has become necessary if Parliament remains gridlocked.

Professor Thom Brooks, Dean of Durham Law School, says that should MPs be unable to agree a deal the decision on how to proceed should be put to the public. “A second referendum cannot be justified as a re-run of the last one. But it is our only choice if Parliament remains unable to agree our future relationship with the EU.”

Brooks proposes the second referendum must be different from the first. The choice would be between the Prime Minister’s Brexit deal or remaining in the European Union.

“Theresa May’s deal is the only Brexit on offer and there is no mandate for new negotiations without a snap election. We cannot hold a referendum every time a government wants support for a new deal because that would be re-opening this issue repeatedly until a ‘correct’ result is reached which is intolerable and disrespects public.”

He advises against including No Deal as this was never an option in the first referendum where the idea of leaving the EU without an agreement was widely mocked as Project Fear. Including No Deal as a third option would also split the Brexit vote with May’s deal undermining integrity of result.

Brooks says: “Many in Parliament seem split. They have doubts about May’s deal, but do not want to act against the public’s wishes. This is understandable. Now that Brexit means 500+ pages of detail, it should be left to the public to decide whether or not to accept the view it is the Brexit they voted for or not.”

The Electoral Commission recommended the last referendum’s wording was changed to ensure fairness and impartiality, quoting and citing written evidence from Professor Brooks in its final report to David Cameron’s government.

Brooks evidence to Home Affairs Committee: Post-Brexit Migration Policy Consultation

HOME AFFAIRS COMMITTEE

Post-Brexit Migration Policy Consultation

Name:        Professor Thom Brooks FAcSS FHEA FRHisS FRSA Job title:     Dean & Chair in Law and Government Address:     Durham Law School, Durham University, Durham, DH1 3LE Email:        thom.brooks@durham.ac.uk Website: http://thombrooks.info

 

 

 

 

 

OBJECTIVES

1.       What should the Government’s objectives be in drawing up a post Brexit immigration system?

This moment should be seized to overhaul the immigration system. For over 20 years, there have been countless Acts of Parliament relating to immigration and sometimes annually. These can be amended almost as soon as they come into force. An immigration commission is needed urgently to effectively tidy this up with a new draft Bill that harmonizes existing laws. This would be one small, but important, step towards making the system more transparent and less complex.

The next step would be to ensure Britain’s competitiveness with an immigration system that both attracts the world’s best and brightest – but without separating British citizens from their families. I would recommend an end to points-based migration, the use of post-study visas, and a new Tier 6 stream for EU (and Commonwealth) citizens based on the UK’s longstanding and deep connection with each.

There should also be fundamental reforms to the family rules. The minimum income threshold, if it were to remain, should account for income by the couple and not only the UK citizen earned in the UK. Non-EU citizens cannot claim public benefit anyway and the income threshold aimed at cancelling out any such benefit burden is a red herring. But denying income earned from the non-UK citizen in calculating the threshold increases risk of separating lawfully recognised marriages of British citizens with no convincing public policy benefit.

2.       What are the implications of the net migration target?

The net migration target is a smokescreen. As I have argued elsewhere and many times, the government could reach its target of 100,000 or less within 12 months if it wanted to.[1] At present, we see non-EU citizens within the government’s full control rising while the EU citizens it claims are unrestricted falling fast. The net migration target could be reached by ending visas for entrepreneurs, skilled professionals, students and more for non-EU citizens. But there has not been deep cuts for these areas because of the evidence-based benefits they deliver for the UK. This raises a question about why have a net migration target that could be reached but isn’t. Brexit is not a cause.

In fact, there has been what I have called ‘the free movement myth’ that EU migration is unregulated.[2] This is untrue. What is true is the UK has done much less at imposing existing powers that could be used to restrict EU migration than other EU countries, such as France and Germany.

It has been alarming to see the continued exodus of British citizens, which I have also written about repeatedly.[3] Net migration not only includes estimates of foreign students, but British citizens. Neither should be included lest it incentivizes the government to encourage more UK citizens to leave to achieve a net migration drop, that is justified as an attempt at improving public confidence.

Of course, the biggest problem with net migration is that it does not address the root issues. The public’s concern – rightly or wrongly – with immigration has much more to do with perceptions of their adverse impact on access to public services. A cut in migration numbers is thought to lead to shorter A&E queues, more available housing or better job prospects. Putting aside the issue of underinvestment in public services, less migration is likely to counterintuitively contribute to more adverse impact. Migrants in A&E are more likely to be the doctors and nurses than patients – fewer of the former will lead to longer waiting times for the latter. And so on. Cutting net migration may well fuel further anti-immigration sentiment based on an intuitive, but false, perception of how migration impacts on public services.

3. How should the UK address skills shortages which are currently met by EU migration?

I strongly recommend significantly reforming the Migration Advisory Committee. The MAC is a group of five economists providing macroeconomic advice. The government would benefit far more than a slightly expanded MAC including 2-3 additional experts in law and social policy that could help assess the wider social impacts of changes. This is currently overlooked. Plus, the MAC should provide more evidence on microeconomic impacts on regions.

Such a reformed MAC would be better placed to assess where skills shortages are locally as well as nationally with a view to the wider potential impacts.

4. Should a post-Brexit immigration policy seek to reflect regional variations?

Yes. I would strongly recommend a national quota system for Tier 1 and 2 visas with additional quota made available by region on evidence-based application for this additional quota by regions. This would keep the standard sufficiently high in terms of accountability and transparency. Too rarely do we hear our elected officials espouse the known benefits that immigration has brought to Britain. This system would share this responsibility nationally and locally while engaging the public to support such cases.

BREXIT NEGOTIATIONS

5.       To what extent will trade and immigration arrangements be linked in the negotiations and in the legal text on the UK’s future relationship with the EU?

This is uncertain at present, but migration can regularly feature in such arrangements. I would expect it to feature here.

6. What are the likely trade-offs?

This will depend on which arrangement is agreed.

MIGRATION CONTROLS WITHIN EU SINGLE MARKET RULES

7.       Could the UK seek to continue to participate fully in the Single Market while satisfying public demand for control of immigration?

Yes and no. Some segments of the public have been led to believe that the Single Market’s “free” movement means uncontrolled mass migration. They will not be satisfied.

But this view rests on a substantive mistake about “free” movement. Like any freedom (such as free speech or free assembly), there are reasonable restrictions to its use. The EU’s “free” movement is not a right to go here or there at will, but a freedom of labour to cross borders. There is no unconditional right of travel, benefits acquisition or permanent settlement. Some countries like the UK might choose to not utilise the full range of existing powers than others like Germany, and this may contribute to the false belief that freedom of movement is anarchic. Such a perception can and should be challenged. The government could ensure less abuse of the system, etc if it wanted to while remaining in the Single Market. Other EU countries manage this with greater migration flows. There is no reason to think the UK could not do so too.

8. What controls to EU migration or employment, additional to those currently used, are presently available to the UK Government within the single market and what might be the impact were they to be adopted by the Government? What measures are used in other EU countries?

The European Commission lists the rules here: http://ec.europa.eu/social/main.jsp?catId=460

MIGRATION CONTROLS IN AN EEA-TYPE FRAMEWORK

9.       Would there be benefit in any future deal between the UK and the EU containing an ‘emergency brake’ or similar safeguarding clause? If so, what might such a provision look like and how might it be activated?

No. The issue would be justifying the activating threshold. If this was not suitably robust, it would be difficult to defend. If every country could pull the brake (so to speak) willy nilly, then it would undermine any shared system.

However, if there could be found an agreed threshold, this could make such a scheme potentially workable.

10. What kind of emergency brake might be available within an EEA type framework?

See previous answer.

MIGRATION CONTROLS WITHIN A FREE TRADE AGREEMENT

11.    What UK/EU immigration controls would be possible in a free trade agreement, what relevant precedents exist and what would be the likely trade-offs if the UK pursued an FTA?

See answer to 8.

12. What would be the advantages and disadvantages of having the same immigration arrangements for EEA and non-EEA citizens? Would it be practical to apply existing non-EEA rules to EEA citizens after Brexit?

I would recommend treating EEA and non-EEA citizens differently, as an individual originally a non-EEA citizen. The UK has had a deep, longstanding relationship with the EEA sharing a common citizenship framework. There are common systems, standards and understandings above and apart from many other non-EEA countries. Plus there are benefits to providing a more beneficial scheme given both the proximity of the EU market to the UK and the interest of UK citizens wanting reciprocal rights in the EEA.

I would recommend this is formalised in a new Tier 6 visa scheme. I would also recommend including some Commonwealth citizens especially post-Windrush – and for the same reason of sharing a deep, longstanding relationship. Less than 100 years ago, Citizens of the UK and Colonies was a shared passport from the Caribbean to Cumbria and beyond. This should not be forgotten for its significance in contributing to British identity, and neither should Britain’s place in EU be forgotten or overlooked.

13. Is visa liberalisation likely to be a priority for the UK’s trade partners in any potential future FTA negotiations? To what extent can the UK hope to strike trade deals without migration provisions of some kind?

It is difficult to see free trade deals of the kind discussed by ministers lacking any migration provision.

LABOUR MARKET CONTROLS

14.    Is there evidence that free movement has had a negative impact on workers’ pay and conditions in the UK? If so, to what extent could such issues be addressed by reforms to labour market regulations? Are there relevant practices from other EU countries that the UK could adopt should such reforms be required?

The main negative impact has been in temporary work in the agrarian economy. Labour market regulations could be reformed, but prices at supermarkets would likely rise.

15. What steps should the UK take to encourage UK businesses to employ workers already resident in the UK?

The best step is to invest more substantially in education. The UK will flourish from being a world leader. This means attracting the best talent, but also developing homegrown talent of equal or better quality. Closing ourselves off will not raise our competitiveness nor improve future prosperity.

---

[1] See Thom Brooks, ‘May doesn’t have to wait for Brexit to cut immigration’, The Times (11 April 2017).

[2] See Thom Brooks, Becoming British: UK Citizenship Examined. London: Biteback Publishing. 2016.

[3] See Thom Brooks, ‘Mrs May must urgently address the exodus of UK citizens or risk undermining Brexit’s potential’, The Daily Telegraph (24 August 2017), Thom Brooks, ‘Theresa May’s strict immigration rules are keeping numbers down – by driving British citizens out’, The Independent (26 April 2017) and Thom Brooks, ‘Net migration is a hollow victory’, The Times (26 May 2017).

External examiners: expert viewpoint or out of date?

This is what I had to say of the UK's external examining system for the Times Higher Education magazine (the piece and a symposium can be found here):

‘In place of external examining as it currently operates, let’s introduce more rigorous programme reviews’

External examining is no longer fit for purpose.

The problem is not the increasing numbers of student assessments to review or degree programmes to check. It is the failure of universities to increase their resources for external examination in proportion with the sector’s expansion. They largely still pay the same paltry fee for the same few hours of externals’ time as they always did.

The result is that, apart from for dissertations, externals can rarely alter individual marks any longer. They simply don’t have the time to go through them all. So they are limited to either agreeing with everything, warts and all, making some systematic adjustment to marks, or calling for everything to be done again. In my experience, they typically approve just about everything without change, confining themselves to making various comments – usually enormously helpful – on how modules and programmes might be improved further.

Some colleagues argue that we should turn back the clock. If external examining is becoming too much of a rubber-stamp process, we need to increase the powers, time commitment and remuneration of externals, so they can do the job they once did. However, it is unclear how many colleagues would be willing to take on such an onerous task, even with greater compensation.

The right-of-centre think tank Reform argues that national standards should be guaranteed by pegging the distribution of degree classifications on particular courses to their students’ performance in national final-year assessment for each subject. This would seemingly cut out external examiners altogether, but it is a thoroughly bad idea as it would stifle innovation in curriculum design while encouraging teaching to the test.

Universities all claim to engage in some form of research-led or informed teaching. Yet many regulators and managers place research and teaching in different silos. If teaching should have parity with research, then it is high time it was considered in tandem with it.

So I’d propose a US-inspired approach. Let’s leave the annual ritual of marking and exam boards to academic departments and universities. In place of external examining as it currently operates, let’s introduce more rigorous programme reviews, involving external input, every five or so years.

Crucially, these would consider a department’s teaching and research strategies together, in terms of how they cross-pollinate to shape the curriculum.

Such reviews could feed into departmental planning and be of even more use than comments in the truncated tick-box forms used by examiners at present. What we have is formal sign-off that all is well; what we need is genuine challenge to improve.
Bureaucratic micromanagement for its own sake is not the road to climbing in
ternational league tables, reassuring students that their education is world class, or assuring employers that our graduates are ready for any challenge. It’s time we moved on.

Thom Brooks is dean of Durham Law School.

Chancellor must make immigration system self-funded and sustainable in post-Brexit budget

The Chancellor Philip Hammond has an opportunity to get Britain’s immigration system into a more Brexit-ready shape if he has the political courage – and economic nous – to do it. We will find out either way tomorrow, but here’s the issue. Whatever Brexit will mean in terms of any final deal, there is a strong likelihood it could profoundly impact how the immigration system works. This is no bad thing. The Home Office requires urgent reforms and public support for new immigration controls helped win the referendum for Brexit. Change is needed.

But these changes come at a cost. Britain will need to find funding support – and fast – for more border agents and new border controls, especially if the UK is out of the EU single market and customs union. No free movement from Europe means restrictions to and from Britain must work differently. Only yesterday, the Independent reported the Home Office might be forced to hire European workers to register EU nationals without increases in staffing. Yet problems remain for where the funding might come from without increasing taxes on the public.

I recommend the Chancellor takes a bold step by making the immigration system fully self-funded on a sustainable footing. If the system could stand on its own feet funded entirely by fees set on immigration-related applications, this could help raise the profile of migrants by ensuring they do not take a penny from taxpayers – any funding for immigration-related activities is created within the immigration system.

The system’s fees are big business. Immigration-related income raises over £2 billion each year. At least £106 million was raised and spent on non-immigration matters in a consolidated fund according to the Home Office’s annual report of accounts for last year. If Hammond is looking for cash that could help pay for more agents or new controls post-Brexit, the current immigration system could pay for itself in a sustainable way at a critical time.

Home Office figures show how reliant it has become on immigrants to fund non-migration services. For example, the annual surplus earned from border, immigration and citizenship services in 2014-15 was more than £468 million. This was enough to absorb an overall deficit of £266 million leaving an overall surplus of £200 million or more. The truth is that immigration isn’t just helping sustain the British government, but their application fees keep the Home Office afloat with much of the funding earned spent on anything but migration. This is a mistake.

The public has voiced concerns about immigration for being uncontrolled long before the vote for Brexit. Britain’s leaving the European Union will impose costs at least in the short-term for border management and security whatever the new deal in place might be. The UK must be prepared and part of its plans must include funding reserves that can enable the delivery of a new immigration strategy.

The Chancellor has an opportunity he should grasp to ring fence immigration as a self-funded zone that must live within its means on a sustainable basis with no recourse to public funding. This is a promise he can make for a system that needs more of the funding it is already generating to support significant reforms in the short-term. The only question is whether there is enough political will to act now before it is too late. The biggest cost to be paid is to ending the view of migrants as a cash cow to be milked benefiting other pet projects. This is a price worth paying.

Thom Brooks is Dean of Durham Law School @thom_brooks

Brooks on Trump - at Peoples, Pits and Politics

I'm thrilled to be speaking about "What’s Wrong With Donald Trump?" at @peoplepitspoli next Friday at 2pm. Tickets here: https://pppfestival.com/events/whats-wrong-with-donald-trump/

Congrats to the Durham Law School class of 2018!

My message to students:

Dear students,

 

On behalf of my Durham Law School colleagues, I wanted to write to everyone and congratulate you on your outstanding success this graduation day. We’re a top 5 UK law school ranked in the top 50 internationally. Our undergraduate and postgraduate programmes from LLB to PhD have high entry standards and our degrees are highly valued world-wide. This is all partly thanks to the hard work of our academic and support staff, but also partly thanks to the hard work of all you during your studies.

 

One of my particularly enjoyable tasks as Dean is meeting with firms, chambers and other employers. These visits are so enjoyable for me because I hear from everyone I meet about how impressed they are by the quality of our programmes and the students they produce.

But I enjoy even more reaching out to our brilliant alumni and hearing about their happy and memorable times at Durham, but their continuing life-long interest in the rising success of our Law School. Your being a member of our Law School might have started when admitted, but it does not end at graduation. I encourage everyone to please keep in touch and let us know how we might be in touch with you about Law networking events and more in the UK and around the world that are a new permanent feature of how we will connect and support our students from entry throughout their careers.

You’ll know we always welcome our graduates back – from Lord Hughes and Lady Black on the Supreme Court as well as Lord Justice McFarlane on the Court of Appeal (who receives an honorary doctorate this afternoon) to partners, trainees, barristers-in-training and much more – because we care about your success. Your stories will inspire our future students just as our alumni’s stories have inspired you.

Your alma mater is moving in the right direction. We are increasing academic staff and expanding options, starting with Chinese Law on the LLB in Michaelmas. We’ll be launching the UK’s largest Centre for Chinese Law this autumn. From September, BARBRI will hold on-site tutorials for the New York State Bar Exam (and the California State Bar Exam) at Grey College – more info: https://www.barbri-international.com/bar-review/  And there is more to announce soon.

 

So many congratulations to you all from all of us in Durham Law School! Please keep in touch and we wish you every success for the future.

 

Warmest wishes,

 

Thom

The SQE is like Brexit. Public didn't ask for it, it promises everything but hasn't existed yet - and might not even happen

This is a sketch of my TED talk for Legal Cheek's Future of Legal Education Conference delivered in London on 23 May 2018:

Like Brexit, the SQE is causing upheaval. It could make things worse rather than better and may not even happen.

There are many parallels between Brexit and the SRA's SQE.

The decision to hold a referendum was not driven by public demand. Leaving the EU was not one of the top 10 demands by the public prior to PM Cameron calling a referendum. It was mostly about an internal matter of keeping Tories unified and killing off support for Ukip which was hampering Tories at the polls.

Likewise, neither firms nor universities asked for the SQE. This is mostly about an internal matter about the SRA and its own perception of how it plans to regulate in future.

We know more about what Brexit is not than what it might do. But what it might do is anything and everything that sounds good. More freedom, greater sovereignty, taking back control. How? Well, there's nothing yet to point to as it hasn't happened nor is there a deal.

Likewise, the SQE is claimed to improve access, raise standards, etc. But no exam has been written or even provider chosen to write the exam which doesn't yet exist. Much of its justification rests on its effects - and without anything in existence it's all question begging. No wonder the LSB has refused to approve its use before it exists. The many promises need to have some evidence first.

The more we learn about details concerning Brexit the less appealing it looks to even many of its original supporters. Details around Customs and the Northern Ireland border a case in point.

Likewise, the SQE is supposed to be raising standards missing in young trainees. But what of the QLD did the SRA not like? I know of no reports of anyone seeing a lecture, reading a module guide or even taking a look at a hand-out. There is little to no knowledge about what's actually happening in our classrooms which makes the certainty for a change all the more suspicious.

Since the BSB is keeping the QLD, many law schools will keep teaching the QLD subjects so students can qualify to train for the Bar. But with the SQE demanding different content from the QLD, this means that a degree programme already about 50% fixed becomes even more fixed with additional required content. This content will concern more practical, and it seems less academic, issues. And it will drive out areas like comparative and international law modules precisely at the time our students need to be ready for a global world.

(It is also revealing in new research discussed at the conference this morning about what law firms most want but don't get that none of this covered by the SQE - despite the fact the SQE is supposed to ensuring this gap is covered by it. In fact, the opposite.)

While there is a kind of inevitability about Brexit, much could cause it to go off the tracks or stop. We hear of transition periods and they get longer and longer.

Likewise, the SQE's roll-out changes again and again. Just before I spoke, we've heard the SRA claim that the transition period looks set to grow longer again now too. But what if it didn't happen? It seems to me this would do no harm - and probably a lot of good.

If we want to raise standards or improve diversity, we don't need a multiple choice exam to achieve it. In fact, such an exam might undermine doing so. It can be far easier to use the existing framework which looks at widening participation, employability, salaries, etc than creating an exam from scratch.

If only the SRA would have the leadership to think again. There is a constructive dialogue waiting to happen between the SRA, BSB, firms, universities and more to ensure the UK continues to have a global leading legal educational system. But proceeding with a SQE for internal SRA-related reasons doesn't improve things for students learning law, for universities educating students, for firms hiring graduates or the profession in the long-term.

END