Family Law and legal aid .... do families not bleed?

The High Court has quashed the tendering process used by the Legal Services Commission to award legal aid contracts to family law firms - see Law Society and Law Society Gazette.  See also the earlier post on Law and Lawyers.   Unfortunately, this is likely to be akin to winning a skirmish whilst eventually losing the war.  The government plans to turn the Legal Services Commission into an executive agency of the Ministry of Justice - (Guardian 3rd March).  There is little doubt that the objective will remain to reduce the number of legal aid firms practising in this area.  Arguments that vulnerable children may well suffer appear to cut no ice.

The Times 30th September, published an article by Camilla Cavendish - "If we cut legal aid, do families not bleed?"  Cavendish pointed to a care case relating to three children in which Coventry City Council had pressed ahead with proceedings but eventually had to admit that it lacked evidence to support its claims.  After hearing an application brought by the BBC, the judge ordered that the Council could be named.  In an earlier judgment on the case (here), the judge noted that costs were approaching £400,000 and this was a matter of concern when the children were "happy, settled and, within the bounds of what is possible in the confines of their overcrowded home, well cared for".  The family could not have defended itself without legal aid used wisely by a good lawyer.

High Court rules family contract round unlawful - Solicitors Journal 30th September 2010.

Coventry City Council v X, Y and Z (Care Proceedings: Costs: Identification of Local Authority) [2010] EWHC B22 (Fam) 

Addendum 18th October:  The judgment of the High Court quashing the tender process is at Law Society v Legal Services Commission [2010] EWHC 2550 (Admin).

The law of murder - changes to the partial defences

As discussed here, changes to the law relating to the partial defences to murder come into force on Monday 4th October.  A slide (powerpoint) presentation - prepared by Crimeline (Solicitor Andrew Keogh) - may be viewed here.

Changes to the law on homicide 'reduce options for men' - Solicitors Journal 4th October 2010.

Fixed-term Parliaments Bill ... more constitutional tinkering ....

In July 2010, the government introduced a Bill to establish five year fixed term Parliaments - see Fixed-term Parliaments Bill. Is this Bill either desirable or necessary?

Under present arrangements, a Parliament has a maximum term of 5 years - Septennial Act 1715 (as amended by the Parliament Act 1911).  The present Parliament was elected under present constitutional arrangements.  The Bill will fix the term of even this Parliament at 5 years and the next general election will be held on 7th May 2015.  No doubt this will suit most politicians in the present coalition government but, as political events continue to unfold in the present difficult climate, whether it will prove to suit the nation is an entirely different matter.

Prior to the coalition government being formed, the Liberal Democrats had argued for fixed term Parliaments of 4 years.  They argued that it was wrong for the incumbent P.M. to be able to dictate the timing of the election.  In effect, the party in power had the starting pistol for the race.  The Conservatives did not make any commitment though, in May 2009, David Cameron expressed interest in the idea.  Labour also included them in their 2010 manifesto but did not specify the length.  They also proposed an "All Party Commission to chart a course to a written constitution".   After the general election, the idea became a key element in the Coalition Agreement.

The Bill will abolish the ancient power of the Crown to dissolve Parliament and general elections will only occur as provided for by the Bill.  At present, the power to dissolve Parliament is exercised by H.M. The Queen on the advice of the Prime Minister.  Thus, the Bill effectively removes the right of a Prime Minister to simply request, - (and, by convention, be granted) - a dissolution of Parliament.  Traditionally, this has placed Prime Ministers in a very powerful position and the threat of holding an election could be used to bring awkward M.P.s to heel.   It has also retained flexibility within the constitution which could be of benefit in some, perhaps unforseen, circumstances.

General election on a Motion of the Commons:

Under the Bill, one way in which a general election might be called is Clause 2(1) - if the Speaker of the House of Commons issues a certificate certifying that the House has passed a motion that there should be an "early parliamentary general election".  The drafting of Clause 2(1) is interesting.  It does not appear to actually require a "division" (in which votes are counted).  However, if there is a division then the number of members voting in favour must reach a "number equal to or greater than two thirds of the number of seats in the House (including vacant seats).  The Speaker's Certificate is to be "conclusive for all purposes" and, before issuing a certificate, the Speaker must consult the Deputy Speakers (so far as practicable).  The purpose of such consultation is not entirely clear and the "so far as practicable clause" might be thought in the future to enable a Speaker to avoid consultation.  It is difficult to see why it might not be practicable to consult.

General Election after a Vote of Confidence:

If, in the future, a disastrous administration is in power how can it be forced out of office if they have a fixed term?  The current method is that the government loses a Vote of Confidence in the House of Commons.  This occurred with the Labour government under James Callaghan which lost a Vote of Confidence on 28th March 1979 by one vote - (311: 310).  The Bill alters this arrangement.

Under Clause 2(2), the Speaker of the House of Commons may issue a certificate - (under the Bill it seems that he is not actually required to) - stating that on a specified day the House passed a motion of no confidence in H.M. Government (as then constituted) AND that 14 days after the specified day there has not been a motion expressing confidence in ANY government.  On the face of the Bill, there is nothing to indicate what the governmental position would be during those 14 days.  Could the Party which had just lost the vote somehow reconstitute itself and go on to win a further vote?  In practice, it would usually be one of the other parties which tried to form a government but on what democratic basis should they be allowed to do this without an election?

What if there were to be an early election?

The Bill contains some clauses aimed at dealing with the length of a Parliament following an early election.

The 5 year term - is it absolute?

The Bill - Clause 1(5) - enables an outgoing Prime Minister to fix the general election date within certain limits.  Polling day may not be more than 2 months earlier or later than the basic (5 year date).  It is argued that this is needed to "accommodate short term crises or other conditions".  Foot and Mouth (as in 2001) is given as an example in the Explanatory Notes to the Bill.   It is very much a moot point whether this is either necessary or desirable and, in reality, seems to be included to give some tactical advantage to an incumbent Prime Minister.  There is nothing in the Bill to limit the reasons why a P.M. should use this power.  However, if a P.M. wishes to do so then he must make an Order by Statutory Instrument and a draft must be laid before and approved by a resolution of each House of Parliament.

On one view, Clause 1(5) can be seen as a Bill to extend the lifetime of a Parliament beyond 5 years - even if only marginally and with Parliamentary approval.  If that view prevailed, then the Bill could be vetoed by the House of Lords and could not be passed using the Parliament Acts 1911-49 procedure.  However, one suspects that this argument is weak.

The Clerk of the Commons raised concerns:

Concerns about the Bill were raised by Mr Malcolm Jack - Clerk to the House of Commons - see The Guardian 7th September 2010.  He expressed the view that the judges might end up being drawn into political controversy and that there might be the possibility of challenge under Protocol 1 Article 3 to the European Convention on Human Rights.  He was also concerned that the Bill had not been presented in draft form for scrutiny.  See the Political and Constitutional Reform Committee at which Mr. Jack gave evidence.  His views are entitled to great respect.

The Head of Legal Blog has raised other concerns about the Bill - it is well worth a read and discusses the views of Mr Jack.  Further comment may be read at "Of Interest to Lawyers".

Our constitutional arrangements in this area have served us well overall.  The Bill would not actually prevent a Prime Minister getting a general election if he wanted one though he would have to obtain a motion in favour - Clause 2(1).  In effect, the government could vote itself out of office!  Furthermore, if the 2005 German experience is any guide, even Clause 2(2) might be used.  In 2005 Gerhard  Schröder deliberately set out to lose a Vote of Confidence.  This Bill is ill-considered, it is self-serving on the part of the coalition government  and it is potentially riddled with problems.  It adds complexity to the constitution and it is unnecessary.

Further and more detailed material:

Explanatory Notes to the Bill

Fixed-term Parliaments - Parliament and Constitution Centre Standard Note - 6th September 2010.

House of Commons Research Paper

Making a will? See a competent expert ...

Generally, it is desirable to make a will and to avoid the rules applicable upon intestacy (death without a will).  When a will is “executed” (i.e. made) certain strict formalities apply – (Wills Act 1837).  In addition, at the time of giving instructions for the making of a will, a testator must have “testamentary capacity”.  The basic test for capacity was set out 140 years ago in Banks v Goodfellow (1870) LR 5 QB 549.  The testator must understand the nature of the act (i.e. making a will) and its effects.  He must also understand the extent of the property and be able to understand and appreciate the claims to which he ought to give consideration.

This test, whilst remaining good basic law, has given rise to considerable difficulties.  Some of these are discussed by Peter Boynton in the Solicitor’s Journal – “The Last Litigation” - 27th September 2010. The article highlights some of the considerable difficulties which have arisen in recent cases :-

In the Estate of Key [2010] EWHC Ch 408

Charles and others v Fraser [2010] EWHC 2154

Perrins v Holland and others [2010] EWCA Civ 840 – (here, the costs of the case exceeded the value of the estate).

These cases are not necessarily straightforward to understand without a good grasp of “succession law” but they show that it is essential for those who prepare wills to adhere to the relevant guidance and to be sure that the testator has testamentary capacity.  Sometimes, medical opinion may be needed to assist with this  – see BMJ “How to assess capacity to make a will”   This is a difficult area of both law and practice.

Most consumers appear to think that all will writers are solicitors.  This is far from the case – see Law Gazette January 2010.  Unfortunately, will writing remains an unregulated activity and this makes it very important to be sure about the qualifications of anyone undertaking this work.

Interestingly, there is no legal requirement to register a will but it should be retained in a safe place.  Many testators either leave the will with their solicitor or, often, it is simply kept somewhere at home.  However, there is a registration service available – see here.   This could be worth considering since some problems regarding “lost wills” might be avoided.  It is only necessary to register the place where the will is kept.

See Law Society - Wills

See also Fellowship of Will Writers and Probate Practitioners.

British Government was aware that the U.S. was mistreating British nationals

It appears that the Labour government (under Tony Blair) was aware that the United States was mistreating UK nationals and residents after January 2002 - (and for some years afterwards) - but they did not seriously protest about it.  This has emerged from documents - (which continue to be heavily redacted) - presented in a case concerning 6 men which is being heard in the High Court.  See The Guardian 28th September 2010. 

As mentioned in the post immediately below, the U.K. adopted the Convention against torture and other cruel, inhuman or degrading treatment or punishment in December 1988 and the USA did so in October 1994 - also, see here.  As a Convention aimed at the prevention of cruelty to fellow human beings, this must rank as one of the most important conventions entered into by government and the High Court case raises serious questions about the ethical standards of Ministers at the time.

Addendum 29th September 2010: "Torture warnings pushed aside for Britain to join U.S. in war on terror" - The Guardian 29th September.

Further - see BBC - former Attorney-General Lord Goldsmith QC told BBC's Panorama programme that queries about the legality of hooding detainees were not put to him by the Ministry of Defence.  He indicated that there is some reason to believe that not asking was deliberate.

Questions are also raised about the system of military justice and whether military police can really be trusted to investigate the military.  This arises from the aftermath of the action now referred to as The Battle of Danny Boy - see here and here. 

The Panorama programme "Britain in the Dock" may be viewed HERE.

As much as politicians may wish to "move on" from these matters, it is not going to be possible to do so.  A number of inquiries have yet to report - Baha Mousa and, of course, Chilcot.  In addition, proceedings are on-going in the High Court against the British government.

Addendum - 5th October 2010:   All Party Group on Extraordinary Rendition sends letter to Sir Peter Gibson

The Equality and Human Rights Commission challenges the government ...

Earlier this year, the government, very commendably, made public "consolidated guidance" to Intelligence Officers and Service Personnel on the detention and interviewing of detainees overseas and on the passing and receipt of intelligence relating to detainees.  It now appears that the Equality and Human Rights Commission is claiming that the guidance is unlawful (here) whereas the government disagrees (here).  The Commission has suggested ways in which, in their view, the guidance might be amended to make it lawful.  Unless the matter can be resolved then it is likely that the Commission will apply for judicial review of the guidance.


Under the guidance, British officers may not cooperate with foreign forces over the interrogation of terror suspects if they “know or believe” that torture will take place.  There is no such restriction where officers believe there is only a “serious risk of torture”, which the commission argues is not consistent with the UK’s international obligations, including the UN convention against torture. - see (link).  A further issue relates to "cruel, inhuman or degrading treatment" where the guidance appears to be somewhat less rigorous.


The European Convention on Human Rights Article 3 also outlaws torture, inhuman or degrading treatment or punishment.  In a number of cases, the European Court of Human Rights has given general descriptions of what makes treatment or punishment "inhuman" or "degrading".  Inhuman treatment has included hooding; continuous loud noises, sleep deprivation, reduced diet and being made to stand against a wall in a painful posture for a lengthy period: Ireland v U.K. (1979-80) 2 EHRR 25.  Degrading treatment has been described as treatment which humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or which arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance: Pretty v United Kingdom (2002) 35 EHRR 1


After the general election, the government announced an inquiry into allegations of British complicity in  torture - The Guardian 21st May.   The Foreign Secretary (Mr William Hague) stated - "It is vital to remember that torture does not help us defeat terrorists; it helps them to try to justify their hostility to us".

See also Cabinet Office - "UK involvement with detainees in overseas counter-terrorism operations" 

Detainee Legacy Issues - post on Watching the Law

Making the law; deciding what it means and Bills now before Parliament

Within the U.K. sovereignty rests with "The Queen in Parliament" (Q in P).  Thus, the Q in P is the supreme law making authority for the U.K.  New laws start their lives as "bills" presented to parliament and the bills before parliament at the moment may be seen here.  When a bill has gone through all of the required stages in parliament AND has received the Royal Assent it becomes an Act.   As a basic rule it would become law from the beginning of the day on which Royal Assent was given.  However, it is common practice to delay commencement and to use Commencement Orders as a method of implementation.  Commencement is made even more complex because, very often, different sections of an Act are brought into force on different dates.

The actual interpretation of an Act is a matter for the judges.  The Interpretation Act 1978 sets out a number of key points which commonly arise in interpretation but there are judicial rules and techniques which are used when a court has to decide what legislation means - see here for some of the methods used.  Interestingly, it used to be the rule that the judges would not look at Hansard in order to find out what had been said in Parliament during the passage of an Act.  This rule was changed as a result of the House of Lords decision in Pepper v Hart 1993.  In practice, many judges played mere lip service to the rule - see "Statute Law: Judges as Legislators" (Francis Bennion).  In addition, the Human Rights Act 1998 section 3, states that - "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

In the process of interpretation the judges create additional law. - see Open University Judges and the Law.  An older theory that judges do not make but merely declare the law which they have discovered is now largely discredited - see Declaratory Theory.  The eminent judge Lord Reid said - "We do not believe in fairy tales any more, so we must accept the fact that for better or worse judges do make law."

Where does the European Union fit into this?  There is a massive amount of law making carried out by the European Union.  However, strictly speaking, it only has effect in the United Kingdom by virtue of the Economic Communities Act 1972.  This Act came into force on 1st January 1973 when the U.K. acceded to the communities.

Bills currently before Parliament:


The bills currently before Parliament can be categorised into public bills; private member's bills and private bills.  Public Bills of particular constitutional importance are the Fixed Term Parliaments Bill and the Parliamentary Voting and Constituencies Bill .  There is good reason to be concerned about these - see the comments about the Fixed Term Parliaments Bill on Head of Legal and Of Interest to Lawyers.  Private Members Bills are those raised by individual members of either the Commons or the Lords.  Only a few of these Bills ever get to become law since the government's legislative programme usually dominates.  For example see the Defamation Bill introduced by Lord Lester of Herne Hill QC and the Anonymity (Arrested Persons) Bill.   Private Bills are a third category.  These are bills promoted by some person or body outside parliament e.g. The Leeds City Council Bill.   They are very expensive to promote and follow a particular route through parliament - see Private Bills Factsheet August 2010.

Occasionally a bill appears which has both public and private effect.  This is referred to as a Hybrid Bill.

For completeness it should be added that Parliament also enacts "Measures" for the Church of England - see. for example, here.