Comparative public law in Europe
On September 29th-30th 2016, the Essex School of Law hosted the first workshop on “Comparative Public Law and European Legal Identity” thanks to the generous financial support provided by a British Academy Rising Star Engagement Award. Two other events are scheduled: one workshop to be held in Brussels on 16th December 2016 and one conference to be held at the British Academy on 24th March 2017. The aim of this project is to bring together a group of young scholars to benefit from the extensive practice of experienced academics and from the insights of non-academics used to engage with academic researchers. The Essex workshop was convened by Dr Yseult Marique (Essex) and mentored by Professor John Bell (Cambridge). The workshop featured five panels. The first and last panels consisted in presentations by two senior academics where they were reflecting on their experience of engaging with non-academic actors. The second, third and fourth panels consisted in three to four paper presentations by early career researchers. They had kindly supplied the participants with a summary of their research as well as an overview of their engagement strategy a week in advance. The aim of these panels was to provide a brief introduction to their research and then explore and discuss their engagement strategies. A large time allowance for each panel facilitated extensive discussions of the matters arising. This report briefly presents the panels and the stimulating discussions they triggered.
The first panel entitled Engaging with non-academic actors – Challenges, opportunities and strategies featured presentations by Professor Chris Backes (Utrecht: Some challenges of comparative (legal) research) and Dr Albert Sanchez-Graells (Bristol: Some thoughts on “being an expert” and pathways to impact). In his presentation, Professor Backes explained how he uses various approaches such as case studies to be resolved by practitioners coming from different jurisdictions as well as questionnaires to be answered by practitioners and reviewed by peers coming from the same jurisdiction. The discussions and perspectives that these exercises trigger allow to gather a wide range of information on the law in action (vs. law in the book) as well as the redirection of research questions if needed. Dr Albert Sanchez-Graells shared his impressive career development in EU economic law based on defending controversial opinions in public procurement. He gave three key pieces of advice: first, seek a high quality standard in your research; secondly, develop extensively the visibility of your research profile (in making papers available on ssrn; using blog posting; twitter and social media for instance); and thirdly, think about the long-term and do not look for short-term glittering kudos of impact. The discussions highlighted very well that becoming an expert, engaging with non-academic actors and then maybe having impact does not happen overnight: it is a long-term process, built very patiently.
The second panel entitled Regulation and the public/private divide featured presentations by Dr Akis Psygkas (Bristol: From ‘democratic deficit’ to a ‘democratic surplus’: constructing administrative democracy in Europe), Oliver Butler (Cambridge: Development of public private divide in European data protection law) and Liesbeth Todts (Antwerp: Towards a general assessment framework for administrative and criminal restrictions of the right to freedom of movement imposed in order to maintain public order). In his presentation, Dr Akis Psygkas explores how public consultations undertaken in the telecommunication sector enhanced the involvement of stakeholders in the decision-making in such a way that the gap between public authorities making decisions and the addressees of these decisions is reduced. Based on a historical approach, Oliver Butler suggested a four-types model for mapping the tensions between the public and the private in UK information law: 1) individual approach; 2) market approach; 3) state-facilitative approach; 4) state-restrictive approach. He suggests that this could provide a useful tool to understand further legal changes in this field. Liesbeth Todts’ presentation suggested that the increasing threat of dangerous situations and threats, such as terror threat, calls for setting more clearly the criteria allowing public bodies to restrict the individual’s right to freedom of movement (eg electronic tagging, football stadium ban, etc). She especially sought to develop a general human rights assessment framework, containing the criteria that must be met when freedom-restricting public order powers are imposed.
The discussions in this second panel turned towards the main routes for us to gain the necessary information to engage with non-academic actors. Key points revolved around: obtaining the necessary training for our research purposes (such as interview with practitioners or actors); bringing our research within the policy agenda of the institutions we seek to engage with (eg: the internal market strategy if one engages with the European Commission); the importance to go beyond the “usual suspects” (eg if one wants to gain more information about policing, one can engage with police force, but one can also discuss with the teachers at the college of policing) and the need to turn research-led pieces into action point papers or policy papers that can make clear to non-academic actors how our research can be used in practice.
The third panel entitled Social policies and solidarity featured presentations by Mary Guy (University of East Anglia/Lancaster: Sectoral regulation in Dutch and English healthcare), Dr Margarite Zouteweij (Fribourg: Seasonal workers EU Directive and Switzerland) and Dr Emilie Chevalier (Limoges: The promotion of social rights, a core feature of the European model). Mary Guy’s research compares the Dutch and English healthcare systems, the first one representing a Bismarck social insurance model and based on mandatory private heath insurance, and the second one a Beveridge taxation-funded system. Her project focuses on the consequences of introducing competition within these different healthcare systems, in particular the growing reliance on independent agencies (such as sectoral regulators and competition authorities) and the evolving role of ministerial oversight of healthcare. Dr Margarite Zouteweij showed the piecemeal development of labor protection across various groups of migrants, the most vulnerable among them (ie seasonal workers) being offered the lowest protection overall. Dr Emile Chevalier seeks to assess the effectiveness of the right to social housing under different jurisdictions (France, Spain, Denmark and the UK). She especially investigates this issue under a collective as well as an individual perspective.
The discussions in this third panel revolved first around our sources of information outside the traditional sources of legal authority (eg policy papers from public bodies, reports by government agencies or NGOs etc.) and the ways in which we can assess them. This led us to discuss our roles as researchers in the policy discussions: do we try to steer the directions of policy-making? Are we at risks of doing so? of developing a policy agenda? How do we develop criteria for assessing policy (eg its effectiveness)? What are the concrete implication of our choices for our research?
The fourth panel entitled Institutional level of decision-making featured presentations by Luigi Pedreschi (EUI): Public services in EU law – an external perspective), Ana Bobic (with Dr Josephine van Zeben – Oxford: European Union as a joint venture by the CJ and national courts), Dr Carlo Colombo (Tilburg: Smart transformation in city regional law and governance) and Dr Nikos Skoutaris (University of East Anglia: State-region relations at the time of Euro-crisis). Luigi Pedreschi’s presentation set public services in the context of an evolving European policy, with strong ramifications in international law: the EU’s bilateral and multilateral trade agreements of the future may influence how public services are both organized and provided in the EU and its member states. Ana Bobic and Josephine van Zeben’s research has been triggered by inconsistencies in the case law of the Court of Justice of the European Union, especially the case law revolving around EU citizenship. Their research is not focused solely on the possible deference shown by the Court towards national courts, but also includes the national follow up of CJEU’s decisions (in Poland, Italy and Austria). It seeks to suggest possible patterns to explain the supposed inconsistencies in the case law under analysis. Dr Carlo Colombo explained his interdisciplinary research that focuses on both the legitimacy and transferability of different hybrid forms of governance at city-regional level. By engaging with non-academic partners from four city-regions in Europe (Brainport Eindhoven; Berlin Neighborhood management; OresundDirekt; Zurich Metropolitan region) in city-region labs, the research seeks to assess if and how traditional public values are protected when public and private actors develop urban projects together. Dr Nikos Skoutaris is interested in tracing the migration of a constitutional idea (the golden rule) in a series of jurisdictions. He suggests that the mechanisms developed to implement the golden rule and to monitor the public deficit have a centralizing effect in (quasi-)federal states, reducing the fiscal autonomy of sub-national entities.
The discussions in this fourth panel explored ways in which researchers can understand better what motivate non-academic actors to engage with researchers: what are the practical changes that our research will seek to achieve? Where is the demand for the research or the funding for the research coming from? How can researchers communicate their findings to practitioners in an effective way? Transversal ideas then emerge: interdisciplinary work may be needed to develop a wider picture of the concrete reality in which non academic actors live. We may need to extend our collaboration to geographers or economists for instance. This may lead us to understand economic or social commonalities (or differences) between the different jurisdictions that we are studying.
The last panel entitled Mapping the next steps featured Dr Carlo Panara (Liverpool John Moores University: Pathways to Heaven – A Divine Comedy-Style Tale of a Possible Research Journey) and Professor John Bell (Cambridge: Navigating multiple identities as researchers). Dr Carlo Panara illustrated the different stages through which research and engagement with non-academic actors go through. He shared with us how from a rather minute legal question (such as a comparison between Italian and German sub-national entities) two different exciting research strands can develop: on the one hand, questions of multi-level governance in Europe; on the other hand, engaging with the European Offices of the English Local Authorities in Brussels. Professor John Bell mapped the role of the comparative law researcher within a broader conversation involving other academics (in our field or in other fields) as well as practitioners. These different discussants will help us check out our thinking and contribute their own insights to our research questions. Humility as well as enthusiasm are key to suggest new perspectives on legal (and not so legal) issues. Researchers have to juggle and balance their multiple social and academic identities so that they can clearly identify their role, contribution, skills and background without falling into the trap of becoming a mere technician providing automatic (so called neutral or objective) information when required to do so. So we need to build collaboration, working in interdisciplinary teams or networks; seek audiences where we can test our ideas and seek to develop our own (original) voice and be mindful of the kinds of products that are expected of us at different times of our careers (eg monograph to get promoted?) or very carefully crafted policy papers where each word matters. The language of each will differ. Time is needed to develop such skills.
This last panel triggered a discussion about our workload as researchers having to balance teaching – research and management. It also made us reflect on the different means of communication. A book conveys a sophisticated argument spanning a whole mental field, while an article seeks to argue one or two points as well as possible and a blog post is more suitable to broaden our audience, make our research known outside our direct research field to academics in other fields, other countries or practitioners and wider audiences. There is an overall package of communication that we need to develop step by step so that our research becomes visible to the external world.
From this first workshop emerges a very rich picture of the approaches taken by researchers to engage with non-academic actors. This workshop very usefully helped us in at least three ways. First, the exchanges helped us to map a few key opportunities we may want to explore when we start the process of a two-way conversation with non-academic actors: with whom do we engage? Why do we engage? Which tools do we have to engage with non academic actors? Here is a link for the provisional ideas surfacing from our discussions. Secondly, this workshop helped us to identify the potential obstacles or challenges we may face at one point or another, with more or less intensity, when researchers seek to engage with non-academic actors. Here is a link to some of the difficulties highlighted during the workshop. Finally, this workshop helped develop a narrative for us – researchers in search of developing a better informed research and so hoping to contribute to policy-making, law-making, and/or wider discussions within our society. We are very much looking to our further discussion at the next workshop in Brussels, on December 16th.
Yseult Marique, Essex School of Law
(Suggested citation: Y. Marique, “Report – First workshop – Comparative public law and European Legal Identity – Opportunities and Challenges when engaging with non-academic actors” available at https://europeancommonwealth.org/2016/10/24/report-first-workshop-comparative-public-law-and-european-legal-identity-opportunities-and-challenges-when-engaging-with-non-academic-actors)