Legal updates

Walker — Thu, 03 Dec 2009 19:54:19 +0000

Keep up with the ever-changing position of law with our summary of recent legislation
As a student reading law, with all the usual obligations we have (such as seminar preparation, coursework and exam revision), many forget to pay attention to the ever-changing position of the law. Although not the most interesting of things to do, updating your legal awareness is paramount to pursuing a career in law. Here, we have summarised a few of the recent laws to have been enacted and legal principles that have been confirmed by the courts.
Legislation
The Employment Act 2008
The reformation of employment law in respect to employment protection rights and industrial relations have led to the repeal of certain provisions of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. The 2002 Act had been initially aimed at encouraging the resolution of individual disputes at the workplace and the reformation of employment tribunal procedures, although upon practical application this had unforeseen adverse effects. Consequently, the objective of the Employment Act 2008 is to promote the use of informal methods in remedying employment disputes. The Act appears to achieve this by replacing the previous statutory dispute resolution scheme with a contemporary non-regulatory structure while suggesting potentially more participation from the Advisory, Conciliation and Arbitration Service (ACAS).
The Act also seeks to clarify the enforcement structure in place for the National Minimum Wage. Alongside this, it reinforces standards relevant to the employment agency to attend to significant concerns regarding vulnerable workers. In effect, the 2008 Act alters labour legislation to achieve conformity with the judgment held by the European Court of Human Rights in the case of ASLEF v UK. Prior to the case, the UK courts had held that trade unions were incapable of expelling British National Party activists and those belonging to similar organisations for their association with those factions.
Child Maintenance and Other Payments Act 2008
According to its preamble, this Act seeks ‘to establish the Child Maintenance and Enforcement Commission; to amend the law relating to child support; to make provision about lump sum payments to or in respect of persons with diffuse mesothelioma; and for connected purposes’. The key topics of the Act include child support and mesothelioma. Prior to the Act, the system for child support maintenance had, since 1993, been governed through the Child Support Agency (CSA). It had been intended to make parents financially responsible for their children. Nevertheless, in practice, it proved unable to sufficiently achieve this. In 2006, the matter received attention and recommendations were put forth to the government by Sir David Henshaw, with further detailed proposals later published in the White Paper A new system of child maintenance in 2006. The present Act aims to provide quicker compensation to people diagnosed with mesothelioma, providing financial maintenance within six weeks to persons made vulnerable to asbestos outside the workplace. The Act offers choice in that persons receiving benefits may, as those not on benefits, make arrangements themselves or alternatively use the new Child Maintenance and Enforcement Commission (CMEC), now in place of the CSA. New support for mesothelioma sufferers is also available under the Act. Previously, there had been a few lump-sum payments via the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, with several victims missing out. Due to the 2008 Act, after diagnosis many will obtain some compensation following claims regardless of employment status.
Common Law
Bocardo v Star Energy [2009] EWCA Civ 579
The Court of Appeal has recently addressed an important lacuna in land law. The case considered whether or not the owner of an estate of land actually retains a claim to that below the surface of the land or if one is restricted to surface ownership. Bocardo involved a claim of trespass against an oil company that had worked underneath the land of the claimant to retrieve petroleum where the estate owner had not granted access rights. The Court referred to common law, including the case of Mitchell v Moseley, which pointed out certain goods, including gold and silver, are of the Crown’s ownership, while other
mineral produce, such as coal, may be claimed by the owner of the land surface. Thus, providing there is no statute or common law ruling regarding specific property as being that of the Crown, the surface owner will also be held as the owner to anything beneath. However, in the court’s judgment in offering legal clarity, it is now apparent that use and enjoyment are highly significant to the value of that under the surface. This was made clear by the Court of Appeal’s reduction of the damages awarded to the claimant by the High Court.
Attorney General’s Reference (No 3 of 1999) [2009] UKHL 34: Application by British Broadcasting Corporation to set aside or vary a reporting restriction order
In June 2009, the House of Lords held that a right to privacy retained by an acquitted defendant under Article 8 of the European Convention on Human Rights (ECHR) failed to surpass the BBC’s right under Article 10, concerning freedom of expression. In this case, a defendant, acquitted of rape, sought to keep a prevention order in place, restricting the publishing or broadcasting of his acquittal circumstances or potential retrial information, unless his identity remained anonymous. The BBC made an application to the House of Lords regarding the order, as it wanted to feature the defendant’s acquittal in an episode of a proposed programme. The House of Lords therefore had to decide which right under the ECHR took precedence in this situation. In judgment, the Lords considered the balancing of the right to privacy against the right to freedom of expression. The anonymity order was discharged because the BBC was incapable of enjoying freedom of expression without revealing the defendant’s identity. The case provides clear confirmation that where an unarguable public interest is concerned, Article 10 takes priority when weighed against article 8’s interests.
Other enactments
Parliament has now enacted the Finance Bill, as the Finance Act 2009. The Act includes all alterations applied to the law of tax for the year. The official explanation, as per the preamble, is that it is ‘an Act to grant certain duties, to alter other duties, and to amend the law relating to the National Debt and the Public Revenue, and to make further provision in connection with finance’. Intentions mentioned in the Budget provided by Alistair Darling, the Chancellor of the Exchequer in April 2009 are included in the Act. Prominent amendments to income tax will materialise commencing April 2010. For such, enabling provisions of the Act involve an increased rate of income tax of 50% on income above £150,000, alongside a reduction of the personal allowance for those with incomes exceeding £100,000. The Criminal Evidence (Witness Anonymity) Act 2008 has also been established by the government. The Act restricts the common law policies concerning witness anonymity orders in criminal trials, replacing these with statutory controls. The Act is a result of the decision in R v Davis, wherein it was decided that instructions commissioned by the court to provide for anonymity of witnesses surpassed its jurisdiction and were unlawful. The 2008 Act is consequently an emergency measure, as the judgment would potentially increase the amount of prosecutions dealing with cases where courts have advanced similar measures, alongside convictions, and trials where witnesses provided evidence anonymously. Updating your legal awareness is one of the ways in which you may gain a competitive advantage while reading law. Although at first mention, the idea of researching recent Acts of Parliament or common law may seem to deter the average student preoccupied with going to the bar at the weekend, the process is less daunting than it is perceived. Only a selection of recent legal updates have been mentioned here, so it would be worth checking the current status of the law yourself, much of which can be done via the parliamentary website (www.parliament.uk).
Aaron Green is in the third year of a Law LLB

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