Academic Articles and Commentaries

This section contains a library of academic and professional articles and commentaries relating to all aspects of European Law and EU Affairs, and how the EU legal system engages with national law in the EU member states.

Articles may be reviewed and commented upon by site users, all comments will be moderated, and only constructive comments accepted.

We have no pre-conceptions of the topic areas that may be covered by articles submitted, merely that they should be EU-centric and relate in some way to the EU legal and social framework, or the relations of the EU with the wider world.

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Details: Written by: Claire Bradley; Published: 31 July 2025

A detailed legal analysis which explains why the case of For Women Scotland was wrongly decided by the UK Supreme Court

This paper undertakes a detailed critique of the UK Supreme Court’s judgment in For Women Scotland (“FWS”), arguing that the Court misapplied both the correct interpretative approach and the relevant EU‐derived equality law, and as a result, has potentially put the UK in breach of its obligations during the transition period.

The paper sets out to examine each of the seventeen “premises” summarised by the UKSC at para 265 of its judgment. After outlining the background and procedural history of FWS, the paper analyses premises 1–17 in sequence, before assessing whether the Court’s ultimate conclusion that sex in the Equality Act 2010 relates to biological sex rather than certificated sex is factually, legally and procedurally justified.

The paper concludes that, on a proper purposive, EU‑conforming reading—reflecting the directives’ definitions and the CJEU’s settled caselaw—the term “sex” in the Equality Act must be given a “certificated” (acquired) sex reading. The Supreme Court’s contrary conclusion is factually, legally and procedurally flawed, and may well have placed the UK in breach of its transition‐period commitments under the EU-UK Withdrawal Agreement.

Details: Written by: Claire Bradley; Published: 21 January 2025

EU AI Act - An initial Look

AI has been in the news quite a lot lately, and therefore we thought it would be a good idea to write a short overview of the EU’s AI Act, so that people would understand what it is, to whom it applies, how it aims to manage some of the risks associated with AI (particularly those AI practices that the EU’s AI Act prohibits) and our view on whether the Act is sufficiently robust to effectively mitigate the risks of AI in relation to people’s fundamental rights.

What is the EU AI Act?

The EU AI Act is the first binding worldwide horizontal regulation on AI. The Act aims to foster responsible artificial intelligence development and deployment in the EU and it came into force on the 1^st August 2024. It sets a common framework for the use and supply of AI systems in the EU.

This Act classifies AI systems with different requirements and obligations depending on whether the AI system poses unacceptable risks to fundamental rights and EU values, high risk AI systems that can have a detrimental impact on people’s health, safety or on their fundamental rights, as well as AI systems that pose low or no risk. The AI Act also lays down specific rules for general purpose AI models, although these will not be the focus of this article. We will be covering these in subsequent articles.

The status and authority of the Johnson government – is it a caretaker government and what does that mean for Brexit and the prorogation of Parliament?

Introduction

In the wide ranging constitutional debates seen recently (summer 2019), one point that has not really been discussed is the status and authority of the Johnson government. In some ways this is surprising. The question is, is it a government ruling with its authority arising from the confidence of the House, or is it merely a “caretaker government”, and if it is a caretaker government, what does that mean?

Since Boris Johnson took office following his election as Party Leader of the Conservative Party by 160,000 Conservative party members, there have been many calls for a vote of no confidence in the Johnson government because of its approach to Brexit. With no majority, and Parliament and the country in uproar at Johnson’s questionable decision to prorogue Parliament for five weeks, it seems clear that the Johnson government does not have the support of the House.

This article explores the principals of a caretaker government and asks the questions: is the Johnson government a caretaker government? And what would it take for the caretaker conventions to apply? If the caretaker conventions were applying, in what ways would that constrain the government and would it even have the authority to deliver a "no deal" Brexit, which is Johnson's stated aim?

Details: Written by: Claire Bradley; Published: 23 July 2012

The implications and possible legal consequences of the UK Government’s failure to correctly implement the Directive on Privacy and Electronic Communications into S1(1) of the Regulation of Investigatory Powers Act 2000 with regard to the phone hackiing offences

Author: Claire Bradley BA, MSc, ILEX, MA (European Law)

Abstract: This paper examines the implications of an EU Member State failing to correctly transpose an EU Directive into national law and the principles that might subsequently affect the application of national law in the light of the conflicting directive.

In particular, it looks at the example of how the failure of the UK Government to transpose Directive 2002/58/EC (The Directive on Privacy and Electronic Communications) into UK law might impact upon claims made regarding the unlawful interception of communications under s1(1) and s1(2) of The Regulation of Investigatory Powers Act 2000 (RIPA). It looks at the regulatory framework established by RIPA and compares this to the provisions contained in Directive 2002/58/EC, and the Data Protection Directive, and explores how the principles of harmonious interpretation of national law in the light of the wording and purpose of a directive, is likely to change the effect of that regulatory framework in both criminal and civil cases.