What I’m reading: on Higher Education, comparative health law, and Brexit

It’s been a while since I wrote about what I’m reading.  I was going to write separate blogs about each category of reading. But then I remembered: this blog is about my blended life.

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S Collini, Speaking of Universities (Verso, 2017).

I’d read some of Stefan Collini’s 2012 book before. His 2017 collection is a development of those ideas. I don’t dislike his style –  journalistic, punchy, pugnacious. It takes a bit of chutzpah to begin an academic piece with the chapter title ‘Handwringing for Beginners’, even when that’s a response to a critical review.

I’m particularly reading this with the purpose of reflecting on two things: equality and diversity in (legal) education; and what counts as ‘teaching excellence’. On the latter in particular, Collini has quite a lot to say, mostly indirectly (though not entirely: I enjoyed the riff on ‘excellence’ meaning both ‘good of its kind’ and ‘better than others’ on pp 42ff). One of his themes is that the very essence of the value of a university is that it cannot be measured in the ways in which contemporary western societies currently seek to capture ‘value’. A consumer-led notion of value, called ‘student satisfaction’, avoids the ‘difficult judgements about some human activities being more valuable than others’ (p 37). Education isn’t like a hotel experience (‘did you find the fluffy towels fluffy enough?’ (p 106)). Just asking consumer-students if teaching is excellent misses the point:

‘User dissatisfaction may sometimes be an important sign that genuine education is happening.’ (p 40)

‘The paradox of real learning is that you don’t get what you ‘want’ – and you certainly can’t buy it. I can bustle about and provide a group of students with the temporary satisfaction of their present wants, but in that case they would be right to come back years later and complain that I had not really made any effort to educate them. The really vital aspects of the experience of studying something … are bafflement and effort.’ (p 107)

‘A university education is what some analysts have called a ‘post-experience good’: a full understanding of the benefits cannot be had in advance.’ (p 139)

‘… good quality undergraduate education cannot be sustained in a void. … for the contagion of minds that is involved in good teaching to work, the teacher needs to be the product of a whole cultural and intellectual tradition, needs to understand the nature and status of the knowledge they are seeking to communicate, needs to be informed by a certain kind of professional ethos … and so on … universities have to be functioning healthily across the range of activities that constitute them if they are to successfully fulfil the task of undergraduate education at all.’ (p 216)

‘… [university] education relativizes and constantly calls into question the information which training simply transmits.’ (p 235)

Much as I want to agree with Collini – and I certainly agree with the observations above – this particular argument does worry me too. I know that sometimes students do have a bad experience; sometimes those who teach them in universities do not measure up to even the bare minimum of what would be expected by any reasonable outsider. Staff who don’t update their reading lists, who are late for class, who fail to do marking in time, who are unpleasant, sexist, racist – I have seen all of these over the 30+ years in which I have been engaged in HE. So I wouldn’t be for throwing out all attempts to set expectations of academic staff. I think there should be accountability when those expectations are not met. After all, even in the current way of funding universities, this is still public money that pays our salaries. But, as Collini puts it, ‘any genuine evidence [of teaching excellence] can only ever be a matter of judgement, not measurement’ (p 165). Academics are good at judgement: at articulating the reasons they reach the value positions they reach. Let us do this, not the ‘metrics’.

What this all means for equality and diversity is much more difficult. The massification of HE – one of Collini’s key themes – means that HE is now accessible to a more diverse body of students. But it also means that many of our students don’t share the cultural (and pedagogical) values that (in Collini’s words) ‘constitute’ a university. How far do we ‘educate’ students who don’t share those values into understanding and embracing them? How far to we meet them half way by seeking to understand the alternative values that drive them?

What it all means for equality and diversity is even more difficult in the other book I’ve been reading recently:

F Furedi, What’s Happened to the University? A Sociological Exploration of its Infantalisation (Routledge 2017)

I admit I am finding this book quite challenging. Its main thesis is that universities – along with the rest of society – have over-medicalised discomfort. Put very briefly, Furedi’s position is that 21st century students are encouraged to think of challenge, discomfort and difficulty as stress-inducing things from which they are entitled to protection, rather than inherent in the nature of higher education. Along with the culture of identity politics, ‘protest about discomfort’ becomes interwoven with ‘narrative about political oppression’ (p 48).

The implications for ‘teaching excellence’ are less directly articulated by Furedi than by Collini, but they are implicit.

‘In the UK, what’s referred to as ‘the student experience’ is deemed to be of fundamental importance … Universities are rated according to the quality of the student experience they provide. Ensuring that undergraduates have a problem-free and pleasant life is the precondition for gaining high ranking in the university league tables.’ (p 46)

Again, some of this resonates. I recall very well the robust interactions I had with our disability support unit about whether a student was entitled to more time to complete the assessment in a module that I used to lead. The assessment questions were given out at the beginning of the year. Students were encouraged to work on them throughout the semester. There was a system of ‘feedforward’ on their work in progress. We then told them, with 48 hours notice, which of the three questions they should hand in, to be marked. This particular student was accustomed to a blanket 25% extra time in examinations. My position was that giving 25% extra time in this assessment was not a ‘reasonable adjustment’ in the terms of the Equality Act.* The student claimed that my position caused her ‘stress and anxiety’.

But the thing is, students do suffer mental ill-health. And the more diverse the student body, the more difficult it is for those of us who comfortably inhabit the world of Higher Education to claim that we should not adjust for those who do not do so. It’s about power too. That’s what equality and diversity agendas require: the acknowledgement of difference, and the adjustment of notions of ‘the norm’ that operate institutionally and structurally to perpetuate (dis)advantage.

Comparative health law

I’m working away with David Orentlicher to get together our line up (of some 50 contributors) to the OUP Research Handbook on Comparative Health Law. Thinking about the research design (pairs of ‘American’ and ‘European’ authors, each agree what the ‘issues’ are in their particular topic of health law, write a piece together that articulates those issues (eg as a ‘problem question/scenario), then each explain and analyse how their jurisdiction(s) respond), and about whether one can ever really do comparative law has me returning to a theme of my academic life. So I’ve re-read some old favourites; and got up to speed with some new literature on comparative law generally. The 132pp Legrand piece in the 2017 American Journal of Comparative Law defeated all but a light scan, but I had a lovely email correspondence with Peer Zumbansen about his, and the other responses in the special issue. In particular, the responses got me thinking about how comparative legal method must involve a deep respect for the other, as well as a habit of critical reflection to try to see beyond those invisible intellectual habits that define what we think ‘count(s)’ as our particular (sub) discipline(s).

In terms of comparative health law, I’ve particularly enjoyed reading a trio of John Harrington’s publications, which draw out questions of the temporal, and, implicitly, spatial/jurisdictional, in medical/health law. When we take into account time (and, implicitly, space or place) as a dimension of medical/health law ‘we are thus required to take seriously its rhetorical form, meaning that legal reasoning establishes only provisional or contingent truths’ (2012: 495) This immediately sets us apart from ‘foundationalist’ (or others might call ‘positivist’) approaches to law and legal reasoning, according to which ‘the right’ legal answers can be deduced logically from relevant legal texts. Harrington draws on Mariana Valverde’s Chronotopes of Law (2015). His argument is that medical law ‘is marked out by a distinctive ensemble of chronotopes’ (2015, 362). Hence ‘the work of the critical scholar will involve investigating the cultural and social contexts in which these figures and forms gain plausibility’ (2015, 362).  And so ‘historicization remains an important task [for sociolegal scholars] given the tendency to abstraction and a-contextuality in liberal law more generally and in medical law, under the influence of bioethics, specifically’ (2015, 362-3).

Reading this is making me think (a) comparative health law is never feasible; and (b) the design of our comparative health law handbook will get us closer to feasibility than other designs would.

K Armstrong Brexit Time (CUP 2017)

I was lucky to read much of this in advance of publication. But it’s great to see it together in a physical book (I’m still a sucker for physical books). Armstrong’s theme of time has infused pretty much all of his scholarship, but it works particularly well for this account.

Michael Dougan’s Brexit edited collection is on order.

Most of my “Brexit and health” reading comes from links in Twitter though.

And there’s the ongoing interest in EU Health Law more generally: Andre den Exter has just generously sent me a copy of his edited collection on the subject. EU health law and policy without the UK will be, I imagine, quite a bit different to the way it is with the UK. That’s something the (just-landed) Jean Monnet Network, led by Katherine Fierlbeck, will be investigating over the next three years.

To summarise: the themes of my current reading

  • comfort/discomfort
  • time

Blending different types of reading brings out resonances and dissonances which I don’t think I’d get to enjoy if I stuck to just one project at a time, or compartmentalised the things I’m interested in.

*More on this to come: I’m collaborating with several others on a journal article on the topic.

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What does the EU (Withdrawal) Bill mean for health law?

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Here (and here in longer form) is my take* on what the EU (Withdrawal) Bill means for health law and policy. The analysis is necessarily speculative: the Bill is just published, and hasn’t yet been through Commons or Lords. With the government’s narrow majority, it’s even more so.

The Withdrawal Bill repeals the European Communities Act 1972 and creates a new formal source of UK law: ‘retained EU law’ (an umbrella term in the Bill).

‘Retained EU law’ includes ‘domesticated EU law’ and EU-derived domestic law.

Domesticated EU law is EU law which is currently ‘directly applicable’ in UK law (applies without further ado once adopted at EU level). Health law examples include: Advanced Therapy Medicinal Products Regulation 1394/2007; the Data Protection Regulation 2016/679. One to look out for: the new EU Clinical Trials Regulation is yet to enter into effect. It would have to be operative immediately before Brexit day to be covered by the Bill’s terms. It will not be because the relevant database will not be operative in time.

EU-derived domestic law is UK law derived from EU law that is already incorporated into UK law. A health law example is UK compliance with Human Tissue and Cells Directive through the Human Tissue Act 2004, the Human Tissue (Scotland) Act 2004, and the Human Fertilisation and Embryology Act 1990.

Retained EU law will be amended.

It will be amended through primary legislation: e.g. an Immigration Bill. This has been misleadingly portrayed as ensuring continuity for EU citizens in UK unless changes are approved by Parliament. In reality, everything will change and this has serious implications for health and social care staffing and recruitment to health research posts in UK. It also has implications for UK nationals in the EU-27. When the Immigration Bill emerges, health law and policy community should therefore pay careful attention.

It will also be amended through delegated legislation. The Withdrawal Bill confers a great deal of power on ministers to address ‘deficiencies’ in retained EU law.

A ‘deficiency’ is defined by implication by reference to the view of the relevant minister. It is not defined any more than this, but the Government’s Explanatory Notes preclude its interpretation as merely any EU law ‘a minister considers… was flawed prior to exit.’

If the executive power to address ‘deficiencies’ is as sweeping as it appears, every aspect of health law pertaining to the UK’s withdrawal agreement could be altered by executive powers. For example, a change to the rights of R-EU nationals to healthcare access in UK negotiated by the withdrawal agreement/due to no-deal Brexit could be implemented via delegated legislation. Functions of EU entities (like the European Medicines Agency) that must, following Brexit, be carried out by existing UK public authorities or newly-established bodies could be defined by ministers alone. Where EU law currently requires and facilitates information-sharing with EU institutions, such as sharing data on cancer outcomes or sharing information about adverse effects of pharmaceuticals, executive decisions could decide what UK law will require. What’s more – even though health is a devolved power – the Bill essentially gives power to Westminster/Whitehall, and effectively undermines the role of the devolved nations/regions completely.

All of this is particularly worrying if there is a ‘no deal’ Brexit. The Withdrawal Bill (if adopted as it stands) gives executive power to remove regulatory oversight. If there’s no deal, there will be no external source of regulatory standards as there is now. If the UK government pursues a low regulation economy, as it has at times threatened, there will be serious ramifications for health law.

The overall lack of parliamentary scrutiny of changes to health law is particularly problematic: Even where health law is notionally ‘technical’, the ‘technical’ choices made have significant normative implications, including for individuals’ lives, their dignity, and perhaps even their identities. Thus democratic processes are necessary to its fair implementation.

What should we be doing?

Anyone who is worried about these proposed changes to UK health law – health lawyers and health policy stakeholders – should be persuading Parliament to provide effective scrutiny of the Withdrawal Bill. We should also watch what is proposed in the UK withdrawal agreement, primary legislation, and delegated legislation, and be clear about what it means for health.

There may be some small opportunities in this landscape of chaos. We’d be healthier overall in the EU: that much is clear. Much of what we need to do now is to secure as healthy a Brexit as we can – it’s damage limitation. But we could make some small changes to UK health law for the better. For instance, some want to change working time rules for the NHS. We could review our position that NHS plasma for those under 21 comes from Austria. We could bring together rules on marketing pharmaceuticals with those on more complex medical devices.

There are huge dangers. We stand to lose a human-rights inspired approach to health regulation, which has implications for public health issues such as tobacco or alcohol regulation. A low taxation and regulation agenda would be not far short of a disaster for health and the NHS.

What we do have on our side is the political capital of the referendum to use to get a seat at the table when the implications of Brexit for health are discussed.

Brexit bus

*with huge thanks to Sarah McCloskey, Brexit Intern, and Sheffield Law School for funding the internship

One year on

I couldn’t let the anniversary of the EU referendum pass without note. So I changed my Facebook profile pictureThe Plough to one that reminds me that it’s important to try to have in mind the biggest possible picture, and to take the long view.

And Jo Shaw and I wrote this blog, based on her work. It’s about the notion that the EU referendum represents ‘THE will of THE people’.

Writing about writing and research

keyboardA colleague asked me to respond to five questions about writing and research. The idea is that “experienced researchers” share their views, so that students in Sheffield Law School who choose to write research papers in their final UG year may draw guidance, confidence, and inspiration for their own projects.

Here are the questions, and my answers:

  1. How did you become interested in your research areas?
I have three main research areas: the law of the EU, particularly its social aspects; health law, particularly EU health law; and equality, particularly its implications for legal education.

I was, and remain, inspired by:

  • my background and upbringing (I had Hungarian, Russian and English grandparents; my father was a refugee and always felt ‘European’ rather than ‘British’);
  • those who taught me (particularly Professors Noreen Burrows and Esin Orucu);
  • my sense of justice and the importance of equality (my mother still recounts how from an early age I would respond to her ‘life is not fair’ with ‘but then we should do all we can to make it as fair as possible for as many people as possible as much of the time as possible’); and
  • my political orientations (I would describe myself as socially progressive).

I am also constantly inspired by intellectual curiosity: I just want to understand what the law is, why, and how it could be better.

 

  1. What project are you working on now and what motivated you to look at that topic?
I’m working on several overlapping projects: transnational, global and comparative health law; EU health law and UK health law post-Brexit; learning and teaching law and diversity ‘beyond the state’; law students’ learning about diversity and unconscious bias; and ‘reasonable adjustments’ duties of HE institutions for students with ‘unseen disabilities’. Some of these projects will have several ‘outputs’ (presentations, publications); others just one or two.

The motivations vary. The Brexit work is motivated by political developments and a desire to inform the public debate with accurate information. The legal education and equality work is motivated by a desire to blend research with learning and teaching, and to work in partnership with students. The transnational, global and comparative health law is because I care about health as an indicator of equality, and the roles of law in supporting that, as well as the very instrumental career aim of securing a non-EU expertise for when the UK leaves the EU.

 

  1. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?
I have a routine of having ‘work from home’ or writing days or half days, which are blocked out in my diary well in advance. But I also write in the interstices of the day (and sometimes the middle of the night/early morning), particularly when something is time-critical. I remind myself that the 8 hour sleep pattern we assume is ‘natural’ is actually a product of the industrial revolution.

I use many different writing techniques, depending on the type of writing involved. Mostly I first map out what I want to describe, argue, or find out, often phrasing it as a question. Then I sketch the sections of the piece, and what order these will come in. Getting this right takes several iterations. I try to be able to say (and write down) in a few sentences what the overall ‘arc of the narrative’ is before I write anything much. If this overall narrative hasn’t distilled, I think about it in the back of my mind, when running, showering, cleaning, playing with the cats, until it does. I usually work directly onto a blank screen, but sometimes with pen and paper. If I’m flagging, I have a change of scene, to a different room, library, café. But mostly I’m standing (with a vari-desk) or sitting at a pc with the window beside me. Each time I finish, I write a note to myself on what is coming next. I read over and polish from the beginning every time I add more. I typically redraft at least seven times in this way before showing to someone else. I then get two or more colleagues to read and give feedback, and rewrite in response to that. After that, there is the peer review process.

Because I have several projects on the go at the same time, I leave things and then revisit them and redraft them with a fresh pair of eyes. It takes me around 2 years (from first idea to submission of revisions following peer review) to complete an article in a journal like the Modern Law Review.

 

  1. What do like and dislike about the research process?
I enjoy many things – particularly collaborative research. I like to organise events where people get together to discuss work in progress; I like to edit other people’s work and offer advice on how it can be improved, and to bring together the parts of a whole in a research project. I like to work with students, who bring fresh perspectives and energy. I like the satisfaction of seeing something finally in print. I like tracking down the answer to a descriptive/analytical legal question (what is the law on X?) to my satisfaction, using the primary texts.

I have learned to cope with and not dislike too much the feeling that I will never be able to read as much as I would like to read, and the feeling of having to begin writing something from a blank sheet of paper, as well as the horror of how awful my early drafts are.

 

  1. What advice would you give to somebody beginning their first research project?
  • Collaborate.
  • Work hard. Harder than you think you need to. Actually working (ie focused on the task, no social media or phone distractions, etc).
  • Talk to other people about what you are researching and why it matters. (Anyone. Your granny. The cat. Just practise saying it out loud, in sentences, without hesitations, uming and erring, or ‘like’. Listen to your voice in your head. Use the same register as the things that you read, which you admire. Then transcribe your voice onto paper. Use short punchy sentences. Just get it down.)
  • Seven redrafts. Then show someone else for feedback. Three more redrafts. Leave enough time.

 

 

Farewell to my 40s

“the only time you should ever look back is to see how far you have come” (unknown)

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“Sometimes
Sometimes things don’t go, after all,
from bad to worse. Some years, muscadel
faces down frost; green thrives; the crops don’t fail,
sometimes a man aims high, and all goes well.
A people sometimes will step back from war;
elect an honest man; decide they care
enough, that they can’t leave some stranger poor.
Some men become what they were born for.
Sometimes our best efforts do not go
amiss; sometimes we do as we meant to.
The sun will sometimes melt a field of sorrow
that seemed hard frozen; may it happen for you.”

To my mind anyway – one of the best things about this poem is that the poet actually does not like it – to the extent that she does not want to be named as the author.

If in any way writing is part of what you do for a living, you will TOTALLY understand this.