The facts
On 31st October 2011, the Secretary of State launched an 8 week consultation lasting until 23rd December which proposed to reduce tariffs from 43.3p per kilowatt hour to 21p with effect from 1st April 2012. The proposal would affect all installations eligible on or after 12th December 2011, even though this date would fall before the completion of the consultation. The effect of the proposal was that installations with an eligibility date on or after 12 December 2011 would receive a tariff of 43.3p per kilowatt hour until 31st March 2011 after which the tariff would be reduced to 21p. Any installations after 1st April 2012 would be subject to the modified tariff of 21p per kilowatt hour. The three claimants, Friends of the Earth, Homesun Holdings Limited and Solar Century Holdings Limited brought a joint claim for judicial review on three grounds. Firstly, that the Secretary of State was legislating retrospectively by announcing an effective date of 12th December 2011 before the completion of the consultation period and submission of any proposals to Parliament. The second claim related to the allegation that the consultation was pre-determined in as far as the announcement of the proposed 12th December effective date had already had an actual impact on people. The third issue was a claim that the Secretary of State’s proposal, if implemented would be an interference of the claimant’s rights under Article 1 Protocol 1 of the European Convention of Human Rights.

The authorities
Firstly, under the Electricity Act 1989 a license is required for the generation, transmission, supply and distribution of electricity. Section 6 of the 1989 Act gives OFGEM the authority to grant the various licenses with some specific conditions attached, breach of which would carry penalties. Secondly, the Secretary of State can modify the conditions of the licenses granted by OFGEM according to section 41 of the Energy Act 2008. The FIT scheme is an example of one such modification and therefore lends its legal foundation to the section. Section 42 of the 2008 Act requires the Secretary of State to set up a consultation and to lay any proposals to changes in tariffs before Parliament for a period of 40 days before any modifications can take effect.

Accordingly, the FIT scheme was initiated by the Feed-In Tariffs (Specified Maximum Capacity and Functions) Order 2010 following a consultation period and Parliamentary approval. Part 3 of the 2010 Order allows OFGEM to accredit any eligible installations for the FIT scheme. By article 10 of the Order, OFGEM is required to assign a tariff code to a FIT installation based on the description of the installation and the FIT year in which the installation is rendered eligible for accreditation. Article 17 of the Order requires OFGEM to maintain the FIT register which contains details about installation and tariff codes. Lastly, the conditions which apply to the various FIT installations are contained in the Standard License of Electricity Supply. The conditions also lay out a requirement for the Licensees to make payments to FIT Generators and any Nominated Recipients. The Eligibility period for receiving tariffs under the above statutory framework is 25 years. The Secretary of State therefore relied on the above legislation, specifically sections 41 & 42 Energy Act 2008 as authority for launching the consultation and making proposals to the FITs rate.

The claimant’s submissions

i. Presumption against retrospectivity
The claimants argued that under the current FITs statutory scheme, “the owner (“Mr A”) of a solar PV installation of 4Kw or less, installed on the roof of a building that is already occupied, with an Eligibility Date of, say 22 December 2011, is entitled to receive the FIT at 43.3p per KwH for a period of 25 years from 22 December 2011.” But the effect of the Secretary of State’s proposal was that an individual with such an entitlement would lose it following the consultation and modifications proposed. This would mean that it does not matter what the statutory entitlement is at the time that an installation becomes eligible under the FITs scheme, as long as the Secretary of State embarks on a consultation identical to the current one, that entitlement would be lost and changed to whatever rate is proposed by the Secretary of State. It was therefore argued that the proposal which was meant to be subject to consultation and Parliamentary approval had become a fait accompli as those in the market place had been forced to act as if it were already in force. The issue was therefore not about the Secretary of State’s right to make proposals but rather it was that the proposals would take effect retrospectively.

The claimants referred to Lord Bingham’s speech in Yew Bon Tew v Kenderaan Bas Mara , where it was stated that “. . . a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used.” In assessing retrospectivity, the court had to presume that Parliament did not intend for the applicable law to be “unfair to those concerned in them, unless a contrary intention appears…the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.” Additionally, the claimants identified a presumption against interference with vested interests in the speech of Dickson J in Gustavson Drilling where he stated that “The presumption that vested rights are not affected unless the intention of the legislature is clear applies whether the legislation is retrospective or prospective in operation.”

Even though the proposal would not apply until 1 April 2012 after the Secretary of State had completed the consultation, its effects would be to take away rights and entitlements gained on or after 12 December 2011 but before 1 April 2012. It was therefore irrelevant that the final decision had not yet been reached; the point was that a future decision would unfairly take away an entitlement gained under existing legislation.

The claimants concluded that delegated legislation can therefore not be extended to favour retrospectivity if the primary legislation does not explicitly state so. Quoting from Lord Steyn in R v Home Secretary ex p Leech (No 2) , it was argued that the presumption against retrospectivity entails “…a presumption against a statute authorising interference with a vested common law right by subordinate legislation.” As such there was nothing in s.41 Energy Act 2008 enabling the Secretary of State to apply it retrospectively.

ii. Predetermination/abuse of power
The claimants argued that the proposal to consult on the 12 December 2011 effective date was illegal because of the real economic effects that it was already having and therefore circumventing the requirements of fairness stated above. Following Lord Woolf in East Devon Health Authority, ex parte Coughlan , the claimants argued that because the 12 December 2011 date had been reached before successful completion of the consultation and before taking into account all responses, the decision was unfair and by extension an abuse of power. Even though still only a proposal, the 12 December date had become a fait accompli because of its actual economic effects. Properly done, the Secretary of State ought to have formulated a proposal for modification, then under s.42 (1)(c) of the 2008 Act consulted on and laid it before Parliament before any proposals would take effect.

iii. Article 1 Protocol 1
The claimants, specifically Homesun Limited, argued that if the proposal as it stood were to go ahead, it would constitute an infringement of their property rights under Article 1 Protocol 1 of the European Convention on Human Rights. With reference to Clayton & Tomlinson , it was argued that ““It will be sufficient for the purposes of A1P1 that the applicant demonstrates an established interest with economic value.” Thus the claimants’ entitlement under the FITs scheme could be treated as a “possession” for the purposes of Article 1 Protocol 1 and any unlawful interference with it would fall under the A1P1 regime. Additionally, a reference to Lindblom J in R (on the application of Infinis plc and another) v The Gas and Electricity Markets Authority demonstrated that financial incentives could count as a “property right” within the context of A1P1.

The defendant’s submission

i. Retrospectivity
The Secretary of State summarized his argument on retrospectivity in 3 main ways. That it would not be unlawful to consult on a proposal simply because it would have retrospective effect if acted upon, that the proposals do not have retrospective effect and that even if they did, secondary legislation to give effect to the proposals would be permitted by the Energy Act 2008. Unless a legal basis could be found forbidding the Secretary of State to consult on a proposal with potentially retrospective effects, he should be allowed to go ahead with his consultation. He continued by arguing that the proposals would not be retrospective because they would only affect individuals from 1 April 2012. Citing Bennion he added that “Changes relating to the past are objectionable only if they alter the true legal nature of a past act or omission in itself.’’

Furthermore, the Secretary of State relied on two other cases to argue retrospectivity. In the case of Antonelli v Secretary of State for Trade and Industry a man was prevented from becoming an estate agent under a statute passed in 1979 for an offence committed in 1973. In spite of the offence having occurred before the passing of the statute, the court held that he could still be prevented from becoming an estate agent. In Leeds Group plc v Leeds City Council , a party claimed to register land as a village green. The right to do so arose under an Act passed in 2000 which required that it be demonstrated that the land had been used for 20 years. It was held that the 20 years could include periods which pre-dated the Act. As regard the question of fairness, the Secretary of State argued that it would not be appropriate to consider the fairness of the proposal because no final decision had flowed from it yet.

He added that in the event that the proposal were retrospective, the Energy Act 2008 allows him to make use of secondary legislation allowing for retrospectivity. He continued that the use of secondary legislation retrospectively would be permissible because the Court was not considering the vires of the secondary legislation and s.41 of the 2008 Act allows him to modify conditions relating to licenses under the scheme. The Secretary of State contended that the powers given to him by s.41 of the 2008 Act are wide and non-exhaustive and would include the ability to legislate retrospectively.

ii. Predetermination
The Secretary of State argued that merely making a proposal does not in itself result in a predetermined outcome. Citing Royal Brompton and Harefield NHS Trust v Joint Committee of Primary Care Trusts and Croydon Primary Care Trust , he argued that even when an authority launches a consultation with its mind set on a particular direction but subject to responses , this does not mean that a conclusion has been predetermined. Judicial review is not open to challenging a proposal for consultation, it only relates to decisions which have already had an effect.

With reference to R v Worcestershire Health Council he argued that the court would be exceeding its authority if it sought to delimit what the Secretary of State could consult on as there is no duty to consult on what issues to consult on. He continued that just because people are treating the 12 December date as if it were already in force does not mean the Secretary of State may not depart from the proposal after the consultation. As long as it remains the case that the Secretary of State could reach a range of other conclusions, there was no predetermination involved.

iii. Article 1 Protocol 1
The Secretary of State accepted that the entitlement to receive tariffs under the FIT scheme was a possession for the purposes of A1P1. However, this right was subject to whatever the governing rate was from time to time and the content of the possession was subject to the right of the Secretary of State under Article 13 of the 2010 Order and S.41 of the 2008 Act to modify the rate of the tariffs. The right to possessions under A1P1 does not include the content or level of payment to receive. Thus as long as the Secretary of State does not completely take away the right, even a reduced amount will continue to constitute a possession.

He referred to the case of Stec v UK , where it was stated that there was no right to receive a particular amount of state benefits even though a general right to receive benefits at an amount determined by the state existed. Therefore those with an eligibility date after 12 December 2011 did not have a right under the FITs scheme as A1P1 does not guarantee the right to acquire new possessions nor any future rights to receive possessions .

The decision
In addition to determining the three issues above, the court also looked at the two points below:
i. Whether the court had power to judicially review the Secretary of State’s proposal since it had not yet been passed into law.
ii. Whether s 41 of the 2008 Act gave the Secretary of State authority to modify the feed-in-tariffs.

In assessing whether Judicial Review was available as a means of challenging the Secretary of State’s proposal, the judge looked at the evidence produced by the claimants concerning the significant impact of the proposals. These impacts were said to be contrary to the intention of Parliament in s 41(1) of the 2008 Act which was to encourage small scale low-carbon generation of electricity. Accordingly Judicial Review is available because the Secretary of State’s proposal was deemed not to further the intentions of Parliament and therefore unlawful. The Secretary of State’s decision to consult on a proposal was not in itself amenable to judicial review, but it was the effect that his proposal was having that made the decision amenable to judicial review. The judge looked at the Royal Brompton case and stated that a proposal must remain lawful and that Judicial Review could be extended to such a proposal particularly if it had an immediate and significant effect. He added that Judicial Review is concerned with actions of substantive consequences and it may accordingly come in advance of the impact of a proposal.

On the question of whether the 2008 Act gives the Secretary of State power to amend or modify the Feed-in-tariffs the Judge doubted whether any such power existed. The judge’s view was that Parliament intended that Ofgem regulates the Energy sector rather than the Secretary of State. But because the claimants had not sought any direction on this, the judge put his doubts aside and proceeded on the grounds that the Secretary of State does in fact have authority to modify the conditions.

Moving on to the question of retrospectivity, the judge stated that there was a strong presumption against retrospective legislation unless there was express statutory language to the contrary or a clear Parliamentary intention in favour of retrospectivity. He argued that the effect of the current proposals was to undermine confidence in those intending to install the solar panels contrary to the spirit of s 42 which envisaged a prospective process. The process of modification was not intended to have the kind of adverse effects currently in place before the date of modification had come into force. He accordingly concluded that the decision to implement the modification with reference to 12 December 2011 would be unlawful.

On the questions of predetermination and A1P1, the judge did not express a view as the Secretary of State’s decision was declared to be unlawful and therefore amenable to judicial review. The Secretary of State was initially denied an immediate appeal because the Court felt confident in its decision. The Secretary of State subsequently sought permission to Appeal from the Court of Appeal which was granted and a hearing scheduled for 13 January 2011.

Reflection
The case reflects the increasing use of judicial review to bring the government to account over its decisions. But more importantly, the issue of retrospectivity has implications beyond the present case. If the Secretary of State’s decision were declared lawful, it would give the government a mandate to legislate on past events. In the absence of a clear intention from Parliament to allow for such decisions, the law would become uncertain and unpredictable and it would, in my view, allow the government to arbitrarily interfere with individual rights. Whilst no one disputes that the government should reconsider its commitments in light of pressing developments, such as the deficit reduction program, there is a lawful and prescribed way of doing this which does not adversely interfere with acquired rights. In the present case this would involve a consultation followed by a period when any proposed modifications are laid before Parliament for approval. Additionally, because of the nature of the solar industry and the work that goes into preparing for an installation, the court was right to place an emphasis of the impacts that the government announcement had had. In the absence of such obvious effects, the Secretary of State could perhaps have been justified in arguing that a proposal alone was not enough to constitute unlawfulness.

Interestingly, the judge expressed some doubts over the Secretary of State’s powers to modify the FITs rate under the Energy Act 2008. His view was that Parliament’s intention was for Ofgem to regulate the electricity market including modifying the rates of the FITs scheme. This argument did not gain much momentum since the claimants did not seek the courts view on it. However, a decision on this issue would have profound implications for the entire scheme as it would bring into question the basis of the Secretary of State’s actions to this point.

*A version of this article was featured in BPP Law School’s Legal Incite

It is therefore fitting that the Legal Services Industry is making the right noises in looking ahead. This is especially true for the Bar where the message for the past two years has been one of how to adjust to a quickly changing landscape. The Bar, once admired and revered in equal measures for its archaic and quaint nature is visibly being steered in the direction of “modernization”, a loose term which I can only interpret as an order to catch-up with the times. As the push for direct access to barristers gathers momentum so does the need for direct marketing to “consumers”. Chambers are being variously exhorted to consider what “Business Consultants, PR Advisers, marketing experts and brand gurus” could do for them in the wake of the Legal Services Act 2007. The times have moved on, is the suggestion, the Bar ought to move on or risk getting left behind. Solicitors have been equally affected by this push for modernization with the implementation of the Legal Services Act 2007 bringing a radically different legal landscape. The question therefore is that where does the aspiring legal practitioner fit in this changing landscape? What does the lawyer of tomorrow look like?

The prospects today
It is worth pointing out that the prospects are not all together dull for the aspiring lawyer today. In a general survey by the Telegraph , it was reported that graduate vacancies are set to rise this year to a rate of 6.4pc from that of last year. In a separate survey, the Telegraph reported that those embarking on a career in law had the second best starting salary at an average of £38,000 at the top law firms. This was only bettered by investment banking which had an average starting salary of £45,000. But the multi-disciplinary nature of law graduates means that they can work in a range of fields including the oil and energy sector, media, consulting, banking and finance, armed forces, professional services and the public service, all of which were picked out for their above average starting salaries. This means that there is an equally optimistic outlook for those individuals with legal qualifications who do not embark on a career in law.

Caution
It is however necessary for anyone looking to join the legal profession that they are prepared to fit into the new legal landscape. In his speech at the 2011 Bar Conference, the outgoing Chairman of the Bar, Peter Lodder QC, exhorted the attendees to “shape the future or become the past.” He reminded them of the inevitable coming changes with a quote by J.F Kennedy that “…time and the world do not stand still. Change is the law of life.” From that speech, the message to the aspiring lawyer was that change is on the horizon and they would only fit in if they were happy to adapt to the shifting landscape. I will highlight in the paragraphs below a few of the changes facing the legal profession and some of the ways that those intending to join the profession can prepare for them. It is worth pointing out that it is not entirely clear how or to what extent the legal landscape will change, but there is a strong emphasis on being prepared to adapt to any changes.

The Alternative Business Structure
The coming of the Alternative Business Structures will mean that there will be more providers of legal services than just the traditional law firm or set of Chambers. Accordingly, prospective lawyers should be prepared to offer more in an environment of increased competition and an expanding legal market. Expanding their skill sets and being prepared to work in more than one area of law will be a great step towards fitting into the changing landscape. Additionally, the image of a solicitor being based at a law firm or a barrister at a set of Chambers will have to be shuttered. While ABSs do not come close to spelling the end of the traditional law firm or Chambers, there is no doubt that aspiring lawyers will have to be prepared to work in a non-traditional setting. The ABS system will allow non-lawyers to run legal services and this could bring about a different working environment, culture and emphasis in the provision of legal services. Those aspiring to practice should therefore ensure that they are not fixated on one way of doing things. The Guardian recently reported that the Co-op is one of the first companies to apply for licenses under the ABS scheme. Exactly how they will be set up and where their legal services will be based is irrelevant, what is relevant is that a different way of providing legal services is coming which may affect most people in the legal profession. It will therefore help for those aspiring to work in these environments to be prepared to take a broad and adaptable way of functioning.

Cuts to the legal aid budget
At the same time that the legal profession is considering the impact that ABSs will have on their work, some aspects of the Bar will have to face the prospect of diminished earnings as a result of cuts to the legal aid budget. So far, it is difficult to judge whether any attempts to get the government to change its mind about the cuts have had any effect. Ken Clarke on 1 December 2011 announced that he would be delaying the planned £350m cuts to the legal aid budget for 6 months. Whether or not there will be a better deal for the legal profession at the end of the 6 months is not clear. What is certain is that there will be a reduction to the legal aid budget and this will in turn have an impact on the earnings of those practitioners who rely on publicly funded work.

By extension, any aspiring lawyers intending to get involved in publicly funded work would have to bear in mind the prospect of reduced earnings and therefore think creatively about ways of boosting their incomes especially in the early years of a career at the Bar. Some of the areas that would be affected include aspects social welfare, crime, employment, immigration and family and the advice available to those intending to practice in these areas is to diversify. It will not suffice to only have one area of law in mind, develop other practice areas in order for you to appeal to a wider audience.
Additionally, aspiring practitioners will also have to think critically about how their pro bono output could be impacted by reduced earnings. Would this mean less time on free work and more time on the sort of work that actually pays? But if we are all focused on making more money then what impact would a reduced output of pro bono work have on the reputation of the legal profession and those in society who cannot afford legal representation? It isn’t my intention to argue for or against cuts to publicly funded work or to preach about the merits of pro bono work but my intention is to provoke some thoughts on how a young practitioner would react in a climate of reduced earnings and increased competition.

Other professions
Additionally, there are plenty of other professions which offer similar intellectual challenges and financial rewards as the legal profession. Most do not even need any additional qualifications. As stated above, individuals with legal qualifications are generally regarded as the most sought after in some of the UK’s top professions including banking and finance, media, politics and the armed forces with law graduates generally considered the most employable. The deep analytical skills, advocacy and hard working ethics of most law graduates means they can work and succeed in a range of professions. An apt example is the Editor of the Independent, Chris Blackhurst, who having graduated with a law degree worked on a legal magazine before moving on to Fleet Street and eventually editing the Independent. And there is an expanding list of individuals who have forged very successful careers outside the law. Without undermining the value of a career within the legal profession, it is worth pointing out that there are other equally intellectually stimulating and financially rewarding professions.

In-house lawyers
There was a moving moment at the 2011 Bar Conference when Robert Webb QC, during his keynote speech, remarked on a moment in 1998 when he notified his acquaintances of his intention to leave the self-employed Bar for the employed Bar. He recalled that one of the most frequent responses he got were words of sympathy almost as if joining the employed Bar spelt the terminal end of any barrister’s career. Contrary to the sympathetic sentiments of the well wishers, Robert Webb QC went on to become General Counsel of British Airways where he worked from 1998 to 2009. During his time as General Counsel, he oversaw a very illustrious period including air travel in the wake of September 11 attacks, the grounding of the Concorde and the opening of Heathrow Terminal 5 to mention but a few. In addition to legal and regulatory affairs, he also oversaw government and industry affairs, risk management and the environment . He has since moved on to other challenges but the rest of his achievements and continuing success is available for anyone to view on the internet.
Robert Webb QC pointed out to the Conference that a career as an in-house practitioner is a route that should be actively considered in the current changing legal landscape. His story demonstrates that you do not even have to leave the law to pursue the non-traditional route of not working at a set or law firm; a lot of organizations across different professions employ in-house lawyers so it is certainly worth looking into being an in-house practitioner. And for those set on a career at the Bar, the employed Bar presents the added advantage of a regular salary at the end of the month and depending on where you choose to be employed, the work will still be challenging, intellectually stimulating and financially rewarding plus most companies have opportunities of giving back to society so you will have the opportunity to play your part.

Looking international
Lastly, Peter Lodder QC implored the 2011 Bar Conference to also look international for work opportunities as a way of preparing for the changing legal landscape. With the established reputation of the English Legal system, this does not sound bad at all. Add to this too, the international nature of the most prominent law firms and their increasing portfolio of international annexes as well as the international work carried out at most established sets. It would therefore help for those intending to practice in England and Wales to be prepared to seize opportunities in other countries should they arise. The concept especially sounds appealing in an age where travel is easy and business is largely international and not confined to one jurisdiction.

Conclusion
In conclusion, change is on the horizon and it is incumbent on anyone planning on a career in the legal profession to prepare accordingly. The picture is not yet fully clear of the extent to which the legal landscape will change but the message is that we ought to be flexible enough to adapt to the new changes. Additionally, it is not yet clear whether the changes will mean a better deal for the legal profession but there is nothing to suggest any dramatically adverse effects. The profession is cautiously optimistic and the view is that most of the changes are needed for the profession to be more accessible to the general public and in sync with the times.

* A version of this article was published in BPP Law School’s Legal Incite

Kenya adopts new constitution

Nearly three months ago, on the 27th August 2010, the government of the Republic of Kenya excitedly promulgated a groundbreaking document, nearly twenty years in the making – its new constitution. The event was so significant that tens of thousands of Kenyans flooded the streets to witness the ushering in of what many regard as a new era in the country’s sovereignty and nationhood. Also in attendance was internationally controversial Sudanese President Omar al-Bashir, whose presence is seen by some as demonstrating an appreciation for impending innovations upholding the rule of law on the entire continent and a “peace” between the neighbouring countries – as enunciated by Kenyan President Mwai Kibaki.

The document is hoped to provide more transparency within the countries political system and promote a greater sense of democracy through the decentralisation of the President’s powers by creating a second parliamentary body, the Senate. In addition to this the new constitution establishes a system of local county assemblies, abolishing the old system of provincial government, which is hoped to eradicate corruption.

Kenya’s new constitution declares that the country’s national values and principles of governance include “human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.” It is envisaged that these values will be both promoted and protected by a newly-formed National Human Rights and Equality Commission, which is given the authority to “to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct,” among other things. These principles are important in a modern democracy, especially one that has experienced decades of discrimination, tribal conflict and corruption.

It also seeks to ‘right the wrongs’ of the past and protect the transparency of land dealings by establishing a Land Commission that is to “manage public land on behalf of the national and county governments.”
Although very timely in its conclusion, the new Kenyan constitution provides a comprehensive legal framework for the emerging developing nation, enabling the protection of those that are most vulnerable and the abolishment of widespread corruption and discord. It is now only to be seen the outcome of its full implementation. The first hurdle has now been overcome and places Kenya well on the road to democratic progression and sovereign growth.

The UK validates prenups

Prenuptial agreements are contracts entered into before marriage or civil union which speak to the terms on which the separation is to take place. Often one partner encourages the other to sign this contract on the rationale that their marriage is founded solely on love and not an interest in the finances of the more affluent of the two. This was very important to Katrin Radmacher when she signed a prenuptial agreement with Nicolas Granatino in Germany before marrying him in the United Kingdom in 1998. In 2006, Granatino and the heiress to a paper firm empire separated and applied for divorce with Granatino challenging the legality of the pre nuptial agreement.

Unlike the United States and a cross- section of Europe, pre nuptial agreements carry no legal weight/force in England with the family courts preferring to rely on the dictum of an equal division of the marital assets between both partners.

Radmacher’s counsel argued that in keeping with the fairness principles often espoused by the courts that it can be argued that once the pre nuptial agreements are conscionable; they should be binding as couples make crucial decisions in the best of times and should be able to do the same in the worst of times.

Commentary on this subject has been rife in recent times with one line of criticism of pre nuptial agreements being that they facilitate one partner being severely disadvantaged financially with this partner usually being the wife.

In this case however, the wife won the right to rely on her pre nuptial agreement with a majority decision with ironically the only woman on the bench, Lady Hale dissenting. It is her position that a pre nuptial agreement is only one of a number of factors that need to be taken into consideration in divorce proceedings.

This decision is set to open the floodgates of reliance on pre nuptial agreements and it is reasonably foreseeable that they would be given more legal force in times to come.

California Proposition 8

The ongoing debate on the definition and the scope of marriage especially pertaining to same-sex unions has recently taken an interesting turn. On the 4th August 2010, a United States district judge ruled that the ban on same-sex marriages imposed by the Proposition 8 referendum in 2008 was a breach of the constitutional right to equal protection.

Attempts by California legislators to restrict and contain the definition of marriage to a union solely between a man and a woman have been ruled against by the court as being unconstitutional despite receiving the support of 52% of California voters in the recent state elections. It facilitated the inclusion of a provision to the California Constitution that “only marriage between a man and a woman is valid and recognised in California”.

This sparked fierce protestation for Lesbian and Gay Rights groups who argued that their constitutional rights had been infringed with religious groups principally Christian groups, community leaders and pro-family organisations crying out for the maintenance of the Proposition 8 amendment in order to defend and restore the definition of marriage, as they understand it.

There is definitely a long road ahead with much room for the development in the law as this case makes its way to the Supreme Court. The eyes of the Lesbian, Gay, Bisexual and Transsexual community are on California.

Lord Bingham is a name so well known in the legal profession that any book with his name attached to it is going to be credited with due respect, he has sat in all the great positions in the legal world and shaped many cases as any law student will know. His book ‘The Rule of Law’ takes us through some of those cases, listing what he finds to be some of the greatest moments for the Rule of Law, with his detailed perspective on them. There is little history between these events he describes.
He takes the reader through what he sees the Rule of Law to be and where it may have originated from, before exploring the examples he provides. This makes the book accessible to anyone with an interest in our legal system (and occasionally others that exist) while still maintaining a different depth for anyone with background knowledge in legal study, which I imagine will be and has been the main audience for this read.
As one of the most influential and well known Lords to sit in the House of Lords his perspective on the legal world and what shapes it as it is, and what it should be, and if it is that, is a read I would recommend to anyone studying a law degree. It brings an important perspective that should not be missed, from one of the most eminent legal minds of our time.

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Apply for your LPC
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Closing date for first round selection: Wednesday 1 December 2010
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The BPTC can be done full time or part time. This course is highly demanding and well respected in the legal field. If you think you have what it takes then fill out an application!
When you complete your BPTC at The College of Law you will earn 60 Masters level credits, that’s one third of the way to achieving your LL.M Masters of Laws Degree.
Apply for your BPTC
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Our GDL has been designed in consultation with leading law firms and will give you the head start you need to have a highly successful legal career. The course can be adapted to you with full time, part time and online study options. The GDL will enhance your legal knowledge and skills through small workshops and lectures to a very high standard.
Apply for our GDL
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Office Hours: Wednesdays 10-12pm and Thursdays 12-2pm
Contact: westlaw@kent.ac.uk
By Imogen Canavan, Westlaw Representative, Second Year LLB Student.

Lexis Nexis
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With LexisLibrary students, lawyers and information professionals can quickly find up-to-date information on cases and legislation, resources including journals and expert opinion from established names such as Butterworths, Tolley and Halsbury’s.
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Office Hours: Tuesdays 10 – 12 or Thursdays 12 – 2.
Contact: njc27@kent.ac.uk
By Natasha Connors, Lexis Nexis Representative, Third Year LLB Student.

The result of this case and the court’s final decision, according to my personal opinion, show that important factors were wrongly ignored. The man’s honourable earlier life, his obedience to the laws and the loyalty to the state are things which are worth certain attention. The abandonment of such ‘details’ could lead to tremendous results not only to the accused personally, but also to his family. The man’s story can provide a good example about these necessary criteria which I believe should be taken into consideration in order for justice to be achieved in the best possible way. The prisoner’s family was stigmatised, something which becomes even more unbearable in small, closed societies. The wife of the accused who is a teacher in a primary school, as well as his two children who are students in high school, had to face the great possibility of a changed attitude towards them from their social environment. Another result which is of great importance is the possibility that the accused would lose his job, something which could bring severe economic problems and a big change to the family’s lifestyle. Despite these, the most severe effect that imprisonment under these circumstances could bring is the troubled psychological health of the accused, something that of course depends on the prisoner’s personality as persons deal with situations differentially. It is important that I stress that these factors vary according to the situation, the people involved and the time the ‘crime’ was committed.
Despite the great importance that these factors have on the restoration of justice, the role of law and for the state has also a major significance. Law’s function to such cases is to apply some order and of the state to treat its citizens in an equal manner. But is the law widely acceptable? What are the expected results of the punishment in such situations? Looking back to the aforementioned case, even though law was applied, its harshness can be questioned. In my view, theoretically, the idea of imprisonment has an educational character for criminals, something which I believe does not imply to the specific case, if not to any case. Imprisonment only traumatised the man’s dignity and his psychic health together with that of his family. In my view, one can easily claim that such a punishment is too harsh for this type of crime. Additionally, we can observe that law is not always accepted from the majority of people, since it sometimes can deal unfairly or harshly on people that do not deserve punishments of that weight.
Justice is a difficult idea to grasp due to its different approaches by people placed in different situations. People cannot always find complete justice since by itself, justice is a subjective idea. The role of laws should undoubtedly not be ignored in such situations and should always be followed since they were made by people to help other people and the society in which we live in. Even though I might proceed to a risky statement which might not be widely accepted, I would like to mention that lawyers, judges and ordinary people should not stay only on the surface by merely following laws since other factors taken into account, different each time, might provide a clearer road to the restoration of justice.

With pride the legal world looks at its products, the likes of Nelson Mandela, Gandhi and various leaders and appreciates their work. Legal education in the case of these reformers gave them an understanding of the black letter law. The most crucial feature was that they could interpret the law and thus seek its validity and understand its implications. St Augustine said, and Martin Luther King Jr quoted in his letter from Birmingham Jail, ‘An unjust law is no law at all.’ This concept of ‘righteousness’ and ‘justice’ is something that legal educationists should make students sensitive to. By understanding law, and engaging with it, concepts of power and the rule of law emerge and this gives space for people to see right and wrong law. Law, for most students is an almost ‘divine’ object that is right by virtue of being a law. However we need to be made aware that Law is not beyond critical questioning. An example that I was given was that of the Nazi Law- laws were equally legitimate but used for the wrong reasons. This understanding of law as a set of rules empowered me to engage with it and question its implications. Most importantly, it was studied through the appreciation and understanding of Rule of Law.

An appreciation of the doctrine of ‘rule of law’ ensures that law is equally applied and does not discriminate. This understanding of equality is among the most needed concepts today because of the justice that comes with an equal application. An equal application of law ensures eradication of unfairness. Understanding law and then scrutinizing it under the rule of law ensures that everyone is given an equal playing ground and discrimination is ended on the basis of minority views, gender, race, colour, religion, beliefs, etc. Appreciating and understanding the concept of rule of law also broadens horizons of the questioning student and gives them a microscope to scrutinize law. Questions like, whose interests do particular law serves? Why the law is the way it currently is? What is the purpose of law? And so on. In my case an interdisciplinary approach- particularly the study of Literature, philosophy and politics helped me gather answers to some of these questions.

Teaching and learning law as a multi disciplinary subject broadens horizons and allows a better engagement with law by arousing interests in a spectrum of subjects. In my education, the concepts of philosophy, politics and literature were intricately woven into the study of law. Philosophy lends its concepts of righteousness and morality. Politics helps in understanding power relationships and the social implications of law. Literature plays a particularly important role as well, because much literature is about the use of language and convincing- a function that forms an important feature of law. For me, studying law as a multi disciplinary subject made it more interesting and gave me a better understanding of its various components, like persuasion techniques, use of rhetoric and power equations. This also helped me in engaging with law rather than simply cramming the legal rules because I had the option of looking at law from my own point of view- philosophically, literarily or politically.

Lastly, Legal education has a ‘courtroom scene’ at its apex. A courtroom is a place where essentially two parties bring their claim and one gets the victory after assessing and weighing the facts of both the sides. This is the crucial most thing in law. The acceptance that the other party has a valid claim and finding of discrepancies in their claim, as well drafting your own claim gives the lawyer a two-sighted vision. Not only does the lawyer appreciate what the other party says, but it also leads to introspecting our own claim. This concept of appreciating and understanding a conflicting claims leads to a more tolerant and open minded view of the opposition. Rather than preaching one’s own side, the other side’s argument is also considered and checked for its reason. Our own claim is also checked for the same reasons and backed with rationality and authority. This dualist approach of not having any ‘right’ or ‘wrong’ argument ensures that no claim can be fitted into these water tight compartments of right or wrong. As lawyers, we are given the power to seek ‘reason’ to profess our claims.

To conclude legal education gives the power to understand and hence criticise and modify law. Legal Education gives us the tools to ‘respect strength and not power,’ the strength of reason, justice and rationality. Law, being a multi disciplinary subject enhances the vision to approach things from different perspectives. It also gives one a dualistic perspective of any point of view and appreciates opposing views, as well as forming well researched, rational and well developed views. The ability to rationalise opinions and to enhance tolerance is needed today and legal education can at least give us the skills to do it.

The Negotiation Programme is aimed at teaching students the skill of resolving disputes with other parties as less formal, pre-action measure. Negotiation in the context of legal disputes has become a crucial component of the law for law students, both in understanding the use and application of legal doctrines and also in practice. The importance of acquiring an understanding of the skill of negotiation is valued by the KLS and valued as a “life skull that is crucial to legal education.”

The programme at Medway is the brainchild of former KLS law student and now Associate Lecturer Janie Clement-Walker, recipient of the prestigious Queen Mother’s Prize from the Honourable Society of the Middle Temple and former Negotiation team member. She describes her involvement in the regional negotiations competition, making to the semi-finals as having “gone a long way” in helping her secure her scholarship from the Middle Temple. Janie also shared that it have her “confidence and a distinct advantage” on Bar Vocational Course (as it once was called) where negotiations forms an important part of the curriculum.

The Negotiation programme at Medway is now underway and involves twenty-six Second and Third Year law students at Medway. Due to the demand for spaces on the programme there is also a waiting list for those waiting to get involved. After weekly training and educational seminars the students will compete in an in-house competition working through set scenarios. Lawyers and academics, including former Kent Law Clinic Barrister Francis Wildman, will judge the competition.

The winner of this competition will go on to compete in the College of Law Negotiations Competition in February.

For further information about the Negotiations Programme at Medway contact Janie Clement-Walker at jtc@kent.ac.uk