Monday, 18 October 2010

The week ahead - Monday 18th October

The Supreme Court is hearing argument in the M.P.'s expenses case - (R v Chaytor and others).  This is an appeal from the Court of Appeal Criminal Division which held that the Bill of Rights 1688 Article 9 did not protect Members of Parliament from criminal process.  The Supreme Court's website informs us that the issue now is whether the Crown Court has jurisdiction to try a Member of Parliament in relation to the submission of an allegedly dishonest claim for Parliamentary expenses or allowances, or is the court deprived of jurisdiction by either or both of (i) Article 9 of the Bill of Rights 1688; or (ii) the exclusive jurisdiction of Parliament.  Read the Court of Appeal's judgment here.

The appellants have each been committed for trial in the Crown Court on charges of false accounting contrary to s 17(1) Theft Act 1968 arising from their submission of claims for parliamentary expenses and/or allowances at a time when each appellant was a sitting Member of Parliament.

The Supreme Court's judgment in Radmacher v Granatino is expected on Wednesday 20th.  This case concerns the effect of "pre-nuptial agreements."  The details may be read here.  The Court of Appeal's decision handed down in July 2009 may be read here- Court of Appeal.  There is now something of a legal conundrum.  The agreement is not binding but may be taken account of by a judge when making an order under the Matrimonial Causes Act 1973 s.25.  Nine justices of the Supreme Court heard the case.  There is bound to be differences between them.  We shall see.

Delivering the 2010 Tom Sargent Memorial Lecture, Rabinder Singh QC has taken up the theme of whether we need a written constituion.  He thinks that we do.  This is a subject "Law and Lawyers" has touched on previously and will do so again.  There are strong arguments for and against though one feels that the balance of the argument is now tilting towards the need for a written constitution if only because it might prevent politicians changing the playing field for short-term political advantage.

Of course, the news this week is likely to be dominated by the announcement of the Government's Spending Review.  The likely impact of that on justice is expected to be massive and some of the areas for cuts have already been heralded - e.g. magistrates' court closures; reductions in legal aid etc.  One seriously hopes that we do not reach a situation in which access to the courts becomes beyond the ordinary person.  The courts and tribunals of the land must never be allowed to become the playground of just the rich.

Addendum 20th October:  The judgment in Radmacher v Granatino is now available - here. By a majority of 8 to 1, the Supreme Court has upheld the Court of Appeal's decision which, in the circumstances of the case, gave decisive weight to the pre-nuptial agreement entered into in Germany.  Lady Hale was the dissenting justice.  The judgment contains a number of caveats - e.g. pre nuptial agreements will not be allowed to prejudice the reasonable expectations of children of the marriage.  Further analysis will undoubtedly become available from the divorce law experts.

Addendum 21st October:  The Guardian published one view of the Radmacher decision which, according to the writer, is likely to lead to exploitation - here.

Addendum 25th October:  See "The Supreme Court and pre-nups: a victory for 40-year-old law?"  Marilyn Stow blog.  A further view is that of Jeremy Abraham writing in the Solicitor's Journal - "Untold riches."  Yet another view appears in The Lawyer 20th October - "Leaning one way."  The there is the view that the decision might have a gender bias - see Hayley Trim's analysis: Conscientious objections: The Dissent of Woman."


  1. The issue in *Radmacher* was never whether the agreement would be binding, but always how a judge should treat it. The treat the Court of Appeal gave it was that it should be all but determinative of the ancillary relief due.

  2. Marcin - thank you. I have taken the liberty of amending the post accordingly.

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