Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

Inventing Drugs: A Genealogy of a Regulatory Concept

The trade in, and consumption of, illicit drugs is perhaps the archetypal ‘wicked problem’ of our time – complex, globalized, and seemingly intractable – and presents us with one of the very hardest legal and policy challenges of the twenty‐first century. The central concept of a ‘drug’ remains under‐theorized and largely neglected by critical socio‐legal and criminological scholars. Drawing on a range of primary archival material and secondary sources, this article sets out a genealogy of the concept, assembled a little over a century ago out of diverse lines of development. It is argued that the drug label is an invented legal‐regulatory construct closely bound up with the global drug prohibition system. Many contemporary features of the ‘war on drugs’ bear traces of this genealogy, notably how drug law enforcement often contributes to racial and social injustice. To move beyond prohibition, radical law and policy reform may require us to abandon the drug concept entirely.     

Regulatory Domain and Regulatory Dexterity: Critiquing the UK Governance of ‘Fracking’

This article provides a critique of the UK government's regulatory response to ‘fracking’. It shows how government has adopted two distinct schemas of regulation, which may usefully be classified under the headings ‘regulatory domain’ and ‘regulatory dexterity’. These schemas rely on very different interpretive conventions and are in many ways contradictory. Yet, government uses both ‘domain’ and ‘dexterity’ arguments simultaneously in order to advance its policy in favour of fracking. The article explains how two seemingly different regulatory approaches work together towards the same policy goal, and highlights the role of law in facilitating technological development.     

Open drug scenes and police strategies in Oslo,Norway

Harm reduction has since the late 80s gradually been part of Norwegian drug policy, challenging original working strategies for police in open drug scenes; places with extensive public trade and use of illegal drugs. This study addresses the research questions: What characterizes police work in open drug scenes in Oslo? How do the police solve the practical challenges of working within a ‘dual-track policy’ combining harm-reducing and punitive approaches? This historical analysis of police approaches to open drug scenes concerns the years 1993–2015. The open drug scene has moved continuously within a limited area around the Central train Station. The study uses data from newspaper articles, semi-structured interviews of responsible police in the area and public action plans by the Municipality of Oslo. Police strategies in Oslo’s drug scenes have changed from strictly punitive to a mixture of harm-reducing and punitive efforts. The police change back and forth between these strategies, and within the same time period they sometimes engage in both. Within the current drug policy, the dilemmas of practical police work persist, as inhabitants of the drug scene perform numerous criminal acts and simultaneously are in need of care.     

Administrative Justice in Wales

This article examines some of the synergies between Phil Thomas’ work and the authors’ research into administrative justice in Wales. Like him, they have examined the impact of new rights-based legislation on access to justice, and also share with him an interest in connections between politics, social policy, and access to justice. The article argues that Wales is not yet taken seriously as ‘a site in which [administrative] justice is done’, and that there remains an ‘implementation gap’ when it comes to putting innovative social policy into practice. The limited development of an administrative justice culture can hamper the achievement of social and economic justice in Wales; such a culture could be fostered with leadership from the Welsh Government and the Senedd, alongside improved training for administrators, and the potential addition of ‘a just Wales’ to the well-being goals contained in the Well-being of Future Generations (Wales) Act 2015.     

‘Ohana Ho‘opakele: The Politics of Place in Corrective Environments

Henri Lefebvre speaks of space as a social product. Spatially, law operates as a social product when considering sites of imprisonment. Call them prisons, jails, or correctional facilities, people who violate the law go to these places for purposes of confinement, punishment, rehabilitation. However, with decades of increasing rates of incarceration, we can see that these places fail both the jailed and the external society to which they will return. Through overcrowding, exploitative private companies, and defunded social services, these places continue to cause injustice as spaces in which the social product of rehabilitation is often lacking. However, on the Island of Hawai‘i, there is an alternative. In Hilo, the community-based organization ‘Ohana Ho‘opakele’ seeks to provide a Hawaiian holistic approach that will serve as an alternative to incarceration. Through wellness centers (pu‘uhonua) and the practice of traditional ho’oponopono (indigenous conflict resolution), this group advocates for a spatially-oriented rehabilitative approach to restorative justice. A central feature is the land upon which the program will be situated and its organization as a self-supported ahupua‘a. This indigenous land division contains diverse and sustainable resources where the participants will be connected to Hawaiian culture and practices central to the concept of wellness for the person and the community. The group’s vision for this program is far-reaching as it will serve as a model for justice in the Restored Hawaiian Kingdom. In this paper, we will explore the vision of ‘Ohana Ho‘opakele against the backdrop of a politically westernized legislative-based response to the diasporic urgency of Hawaii’s incarcerated.     

From Great Britain to Sweden—The Import of Reassurance Policing. Local Police Offices in Metropolitan Stockholm

Martin Innes (2006) has called attention to a recent revitalization of community policing in the Anglo-American policing sphere, albeit in new forms and variations. The discursive and concomitant policy shift in Britain away from ‘community policing’ towards notions of ‘reassurance’ and ‘neighbourhood’ policing has not gone unnoticed in Sweden. Good ideas appear to travel readily eastwards from their British contexts to find translations in the Swedish context. Subsequently, in 2006 the regional police commander in the Stockholm metropolitan area initiated a new community policing programme with the establishment of 10–15 so-called local police offices in targeted depressed areas of the region, and by the end of 2009 there will be a total of 27. The overall goal of the programme is to create a sense of security among residents in these areas and to build upon and sustain the residents' trust and confidence in the police, while at the same time working towards achieving a reduction in crime and maintaining respect for law and order. In this paper I interrogate the translation processes whereby the notions of ‘reassurance’ and ‘neighbourhood’ policing have been partially adopted, adapted, and implemented in a Swedish policing context—collective translation processes that have been wrought with points of friction, i.e. both creative and unproductive resistance.     

‘European Governance’ or Governmentality? The European Commission and the Future of Democratic Government

The word ‘governance’ has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of ‘European governance’. The paper is set out in four steps. The first analyses the European Commission's claims for ‘governance’ as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion.     

The balance between equity and efficiency; reflections on the goals of the new Nigerian competition law

In January 2019, the Nigerian Government finally enacted its first competition law after several attempts to do so previously failed. Since all competition regimes advance one or more goals, the paper provides a critical evaluation of what the goals of the Nigerian Competition Law ‘is’ or ‘are’ and/or what they should be. This paper posits that discussion on goals must relate fundamentally to the true reason(s) the nation ‘needs’ an antitrust legislation and the relationship between these reasons (as reflected in the preamble of the legislation) and the prohibitory aspects of the law.Although the goal of competition is generally thought to be relating to promoting economic efficiency, however, for developing countries (including Nigeria), competition must compose of an important equity dimension. Ironically, the work uses the ‘developed’ experience of the EU in later stages to show that the goals of an antitrust policy are never static but dynamic and may not necessarily always admit of ‘efficiency’ considerations. This paper’s argument is that Nigeria needs a welfarist approach to competition which means efficiency should sit as a top objective and that any compromise on economic efficiency as the goal must be accommodated only to the extent that basic principles of a market driven competition is not harmed. Consequently, the work reflects on how the new Nigerian law has provided a balance between market efficiency and other goals of competition and how the new Nigerian competition body can operationalise this balance in the development of the nation’s antitrust policy. In this regard, the EU also provides some important enforcement lessons.     

European Civil Society: Shaped by Discourses and Institutional Interests

Abstract: During recent years, the concept of European civil society has gained increasing popularity. The European Institutions themselves have developed a discourse on civil society and civil dialogue. Institutional interests have shaped this discourse. Reframing the normative context for EU democracy, this discourse suits some institutions better than others. In particular, the European Economic and Social Committee and the European Commission have made recourse to it; the former to redefine its proper role and combat the risk of marginalisation within the European institutional set‐up; the latter first to build support for policy initiatives in the social sphere and subsequently to respond to the legitimacy crisis of the Brussels’ bureaucracy. These institutional interests have inspired a conceptualisation of civil society as ‘functional participation’ and ‘functional representation’ rather than as ‘politicisation’ or ‘decentralisation’. However, while the Commission and the ESC have had some success in selling their discourse, to be successful in the longer run some problematic assumptions of the discourse should be tackled and both the different rationales for civil society involvement as well as the multi‐level character of European civil society and European policymaking should be taken into account.     

The Swedish jury system in press cases: An offspring of the English trial jury?

In the area of press freedom the English influence has for more than 200 years been strongly felt in Sweden. The introduction of a jury system in press cases in 1815 was clearly inspired by the English example. The Swedish variant had, admittedly, some strange features but it was nonetheless, in essence, a jury. Thus it should, historically and systematically, be looked upon as an offspring of the English trial jury.

Since 1815 the Swedish jury has grown more ‘English’ in some respects. Those greater similarities notwithstanding, there are still important differences between the two systems. At least two of the differences are the result of Swedish innovations.

In 1949 the Swedes in the new Freedom of the Press Act included a provision, stating that the court of first instance not only may but must review a verdict of conviction. If also the court convicts and, consequently, fixes the penalty, the defendant can always take the case at least to the appropriate court of appeal. Thus, there is a double‐check or even a triple‐check against an unwarranted conviction. From the defendant's point of view the Swedish jury system can be described as fool‐proof.³⁵

In 1949 the Swedes also introduced a new method of choosing the jury. The jurors are drawn by lot but not, as in England, with the electoral register as the starting point but from a panel chosen by politically elected councils. Furthermore, one third of the jurors must be present or former lay assessors. Through that method of selecting the jurors the Swedes have reasonably counteracted the traditional charges that juries are ignorant or confused or both. On the other hand, the Swedish system may be sensitive to political influence on the administration of justice since the composition, not exactly of this or that jury but of the whole panel, is the indirect result of political elections. However, once more, unwarranted convictions are almost certainly reversed by the courts.

With their method of choosing the jurors the Swedes also avoid a problem which has, in recent years, caused considerable disquiet in Great Britain ‐ jury vetting. The ancient practice of ‘Stand by for the Crown’ is still a reality in English courts. How often the prosecution uses its right to influence the composition of juries by vetting proposed jurors is not known. However, the practice has caused serious concern among lawyers. ‘The fear of “packed” juries is still with us’, to quote an expert in the field, John F. McEldowney.³⁶

The Swedish jury in press cases is certainly not the most important or the best known offspring of the English trial jury ‐ that is, of course, the American jury. However, the Swedish jury has survived for more than 165 years and is still going strong. It is quantitatively of modest significance ‐ there are in ‘normal’ years no more than a dozen cases in the country. However, the jury has an umbrella effect outside the printed media, i.e. what you are allowed to say in a newspaper or in a book you can almost certainly say at a public meeting or on a stage.

In recent decades the Swedish jury has shown a considerable capability of development. It has approached the English model on some points while, at the same time, making innovations on others. It is possible that Sweden during the 1980s may somewhat expand the jury system within the area of free speech, i.e. outside the printed media.     

The Representation of Two Competing Visions on the Fundamentals of Copyright: A Content Analysis of Associated Press News Coverage on Copyright, 2004–2009

The importance of the public's understanding of copyright has increased in the digital age, and mainstream media play a significant role in informing the public of copyright law and policy. This study identifies two competing visions on the fundamentals of copyright—the private property vision and the public policy vision—and examines which vision is more predominantly covered by mainstream news media via a quantitative content analysis of Associated Press wire service stories on copyright. The findings suggest that, although the number of sources favoring copyright users’ rights has somewhat increased in the most recent two years, overall the private property vision has been more dominantly covered than the public policy vision in the AP news stories. The study concludes that the mainstream media coverage on copyright needs to move toward a more balanced point where both sides of the debate have an equal chance to present their views.     

Business Collusion as a Criminological Phenomenon: Exploring the Global Criminalisation of Business Cartels

Over the last dozen years or so there has been a burgeoning of criminal law for purposes of dealing with business cartels in a number of jurisdictions (for instance, the new ‘cartel offence’ introduced under the Enterprise Act 2002 in the UK). The discussion here provides first of all some account of this process of criminalisation, mapping it in terms of jurisdictions and the legal character of this category of cartel offending. It then seeks to explain and account for the phenomenon and more particularly to determine the extent to which it may be seen either as an element of more forceful prosecution strategy, or alternatively as a sea-change in moral perception and evaluation. Put another way, is this a development led by legal policy, or a genuine shift in outlook, which has produced a new legal policy? It will be argued finally that, in a more pragmatic perspective, the success of the criminalisation project in any case depends on the emergence of a genuine sense of ‘hard core’ delinquency, without which effective regulation by means of criminal law is unlikely to be achieved. In this respect, a manufactured sense of moral censure, fostered by prosecutors to facilitate leniency programmes, may (outside the US) eventually prove to be a point of vulnerability in such strategies.     

Worlds we have lost and worlds we may regain: two centuries of changes in the life course in Sweden.

"The article seeks to place into historical context the familial changes in ?post-industrial' Sweden during the past two decades, by comparing them with general characterizations (based on documented life-course experiences) of the traditional Swedish agrarian society (before 1800), the transitional society (c. 1800-1870), and the industrial society (c. 1870-1980). Familial lives in traditional Swedish society tended to be stable. By contrast, during the agrarian-to-industrial society, especially since World War II, stability became once again the hallmark because of general government social policy."     

Punishing Drug Possession in the Magistrates’ Courts: Time for a Rethink

A lively drug policy debate is going on in the UK, and a central theme emerging is the punishment of drug offenders. The main contributing voices draw attention to the largely futile position of prosecuting offenders through the criminal justice system who are drug addicted and/or who are caught in possession of small quantities of drugs for personal use. This paper adds to this discussion by reporting findings from observations carried out in London Magistrates’ Courts. It notes the relatively high prevalence of small quantity drug possession cases that appeared before the courts over the study days, and questions the value of this type of crime arriving here in the first place. It examines the resultant financial penalties that are most commonly dispensed, and asks whether they can be reasonably justified. It states these are harsh and depriving given the already economically disadvantaged status of most defendants. In addition, case details revealed issues of policing approach involving ‘stop and search’ and the variable application of police discretion. The paper calls for thought to be given to the damage caused to peoples’ lives through pursuing criminalising drug policies, and to the time and economic cost to stretched policing and criminal justice resources. It suggests we learn lessons from other European jurisdictions who assign drug possession for personal use cases, to an arm of the prosecution service where they are processed as ‘out-of-court’, ‘administration offences’.     

Prostitution as Vagrancy: Sweden 1923–1964

This article argues for the need of a historical perspective when discussing the construction of social and criminal state policy and legislation. The article discusses prostitution and women in prostitution as these were perceived in different commissions in Sweden during 1923–1964. During the period women in prostitution went from being characterized as ‘normal’ but a menace to society, to having hereditary deficiencies, to psychopathological and later to be seen as sociopaths. They should be corrected for the sake of the nation and society but also for their own sake. This article also shows that the conceptualization of prostitution as a question of male demand rather than female supply could be seen as early as in the 1950s. This demand of a change of policy, unheard for decades but then picked up again, has to be seen as a liberal feminist legacy rather than as a social democratic welfare development.     

What's the Use of a Hashtag? A Case Study

Although there are now sophisticated techniques for the analysis of social media, socio‐legal studies has yet to draw on them fully. In this article, we demonstrate how Twitter can produce insights about protest, law, and legality, through a case study of protests against the ‘bedroom tax’. The first involved challenging a policy in the courts using a test case or cases. We discuss the litigation strategies and the mess they created and counterpose those strategies with those of four prolific ‘tweeps’ who participated in our study. We argue that, despite the small number of participants, these people have, in their own way, been enormously influential and made things happen. Our position is not evaluative of the different strategies – but, rather, one that recognizes that legality is mobilized in different ways.     

Constitutive Criminology and the ‘War on Terror’

This article presents a constitutive criminological perspective of the ‘war on terror’. The article will first deconstruct the ‘war on terror’; showing how constitutive criminology provides a framework in which foreign policy, the UK state; the police, and society can be systematically analyzed in relation to one another. Second, the article explores how constitutive criminology enables a critical analysis of the dominant state-centric ‘war on terror’ discourse. The article through discussing the multifaceted ‘war on terror’ demonstrates the relevance of constitutive criminology, as a non state centric approach to critical perspectives in criminology.     

Doing family

This paper draws on how constructions of ‘the migrant family’ in political discourse influence migrants' and their families' lives. In specific national contexts, ‘the migrant family’ is determined according to the national and European debates and expressed by their respective rules and regulations. By ‘doing family’, migrants and their families develop strategies in order to fit these requirements of living a certain family life. Fulfilling specific norms and perceptions which are not necessarily required for the majority of society is a precondition to succeed. Who is and who is not part of the family, who holds responsibility — such aspects have to be proved and repeatedly reproduced by migrants and their families. This not only affects their position in society, but also has strong implications on their lives as a couple and family, since it requires the continuous adaptation and reconstructions of their everyday reality.