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The Queen's Speech: proposals will be interesting to current GDL and LPC students
The Queen’s Speech takes place today on Wednesday 9 May 2012. Its full contents are yet to be published. Some of the proposals below, if included, might see themselves in future in the GDL or LPC. Please note that this blogpost is not to be interpreted as evidence that there will be changes to the substantive teaching of the GDL or LPC in any learning providers. All or none of these proposals may be included by HM The Queen on behalf of HM Government today.
Lords Reform Bill – Constitutional and Administrative Law, Graduate Diploma in Law
Despite tension between the Coalition partners, a Bill to bring in an elected senate to replace the House of Lords is expected to be announced, to be introduced within the next 12 months. A lot of this business has already taken place in the Commons Select Committees. All three main parties committed to reform in their 2010 manifestos. Under current Government plans the new senate would be made up of 300 members, with 80% of them elected. The Bill is controversial, and face substantial opposition in both chambers. Conservative backbench MPs have warned that reform is a distraction from more pressing concerns about the economy.
Defamation Bill – Law of Torts, Graduate Diploma in Law; Civil Litigation CPA, Legal Practice Course
The Government has already investigated ways in which to reform libel laws, which could include claimants having to show they have suffered serious harm before suing for defamation. There could also be a system of preliminary hearings in which a judge could throw out spurious cases. Following a draft bill last year, a full bill is now expected.
The Joint Committee on the Draft Defamation Bill published its report on 19 October 2011 on defamation law and welcomes many of the reforms proposed in the draft Bill. That unanimously-agreed report proposed many detailed amendments to the defences available against libel claims, mainly designed to strike a fairer balance between the protection of reputation and freedom of speech. For example, greater protection is proposed for scientists and academics writing in peer-reviewed articles and for publishers in reporting on their debates at conferences.
As well as making recommendations for legislative change, the committee seeks far stronger and more urgent action by judges to manage cases efficiently. An essential step in encouraging early resolution of disputes is the abolition of jury trials in defamation actions, in all but exceptional cases. Judges will then be required to take key decisions affecting the outcome of the case at an early stage, before massive legal costs are incurred.
Banking Reform Bill – “Commercial awareness” CPA in Business Law & Practice, Legal Practice Course
The most widely trailed measure expected to be included in the Queen’s Speech is the long awaited move to split banks into their retail and investment banking functions. The aim is to prevent the investment activities of a bank jeopardising its retail (high street) operations. A detailed blogpost has been previously published on this blog. The retail arms would not be allowed to trade in derivatives or other exotic financial instruments blamed for the financial crash. Banks would have until 2019 to make the changes. A white paper is expected in June with draft legislation to follow in the autumn.
Crime, Communications and Courts Bill – Criminal Litigation CPA, Legal Practice Course
Driving under the influence of drugs could be made its own specific offence in this bill. Offenders could face a fine of up to £5,000, a driving ban of at least 12 months as well as a prison term. The exact drugs covered by the offence and the specified limits for each will be decided following advice from a scientific review panel and public consultation. As previously disclosed by The Daily Telegraph, the new law will cover the abuse of prescription drugs as well as illegal narcotics. The new offence will be enforced by the introduction of “drugyalysers” – drug screening devices – which should be in place by the end of the year. A roadside device would be used to enable a police officer to make an arrest without being required to make motorist perform a Field Impairment – or FIT -Tests of their co-ordination by carrying out tasks such as standing on one leg.
National Crime Agency – Criminal Litigation, CPA Legal Practice Course
Back in 2010, the Government pledged to establish a new National Crime Agency “to lead the fight against organised crime”, enhance border security and fight fraud and cyber crime. Some have dubbed it ‘Britain’s FBI’.
According to the Home Office website, “the government’s vision for the NCA was set out in the NCA Plan published in June 2011. It was also a commitment in the first UK strategy on organised crime, Local to Global: reducing the risk from organised crime. Subject to the Queen’s Speech in May 2012, and the passage through Parliament of a bill to create the NCA, the ambition is that the NCA will be fully operational by December 2013.”
Apparently, the NCA has a number of functions. The NCA will be an operational crime fighting agency that will:
- tackle organised crime
- strengthen our borders
- fight fraud and cyber crime
- protect children and young people
It will apparently build on the work of the Serious and Organised Crime Agency, the Child Exploitation and Online Protection Centre, and will incorporate some of the functions of the National Policing Improvement Agency which fit the agency’s crime fighting remit.
Enterprise and Regulatory Reform Bill – Employment Special Elective, Legal Practice Course
A wide-ranging bill which will reportedly bring in changes to the pay of top executives, rules on employment tribunals and redundancy and cut red tape for businesses. Companies such as Aviva and Barclays have recently seen embarrassing shareholder votes on the pay of their senior managers. Liberal-Democrat Business Secretary Vince Cable is said to be keen change the rules to give shareholders a binding vote on on top pay policies. A requirement for a majority of 75% of shareholders to approve pay deals is thought to have been dropped following opposition from business leaders. This follows outcry over the packages awarded to many business leaders, sometimes in spite of poor performances by companies.
Public Sector Pensions – Employment Special Elective, Legal Practice Course
Proposed changes to public sector pensions have led to large scale industrial action, but the Government looks set to move forward with its proposals. The Government has talked of the need to legislate for changes, such as a move to career average schemes, in the next parliamentary session. This will allow the new schemes to start from 2015.
Lord Hutton of Furness has previously published his final report on public service pension provision on 10 March 2011 in which he set out his recommendations to the Government on pension arrangements that are sustainable and affordable in the long term, fair to both the public service workforce and the taxpayer and consistent with the fiscal challenges ahead, while protecting accrued rights.
Is this where the Big Society came from?
The explanation that the Big Society was an altruistic exercise to help the disadvantaged was clearly a non-starter from the beginning.
There has historically been a lack of clear account of where the Big Society in the UK came from. Notwithstanding its precise source, it was undoubtedly a massive political mistake to attempt to launch it on numerous occasions in a background of austerity and cuts and increasing unemployment. This was bound to lead to stories in the popular press about how people had lost their job, but were being invited to apply ‘for their own job’ as an unpaid volunteer. When you consider the Coalition’s attempt to introduce workfare, you can see how the policy mix became explosive.
This Coalition doesn’t do ‘organic’. For example, in the non-top reorganisation that constitutes the NHS Act, stakeholders were not consulted leading to the majority of the Royal Colleges, including the GPs shared by Clare Gerada, to oppose this key piece of legislation. We were introduced to the notion of the NHS Commissioning Board, and asked to learn to love the idea. In the same way, the Big Society is not about community investment where the ordinary public decides what programmes to flourish.
I believe a big mistake was for Lord Wei and his colleagues to mix and match social enterprises and venture philanthropy, and to repackage seductively as ‘The Big Society’, hoping nobody would smell a rat. The fact that this Coalition doesn’t do organic is manifest openly in the fact that the Big Society Bank will decide where to invest its money (rather, in part, our money as it comes from unclaimed account in the UK). It then decides where it wants to invest the money, and decide which metrics it wants to pursue to decide what a good outcome is. The investors will want something back for their money – doh.
It is particularly not clear where the architects of the Big Society got “their big idea” from. In the US, there has been a history of philanthropy, and indeed organisations in the US are successful are providing such services. Maybe Lord Wei got their inspiration from abroad. Housing cooperatives are well-known about, and serve as a a legal mechanism for ownership of housing where residents either own shares (or share capital co-op) reflecting their equity in the cooperative’s real estate, or have membership and occupancy rights in a not-for-profit cooperative (non-share capital co-op), and they underwrite their housing through paying subscriptions or rent.
However, looking at the small print of how or why we differed from the U.S. has been difficult, as we have never been given adequate explanation of how or if recipients of awards would repay their money, over what time scale, and with what rate of interest. The New York Co-operative does provide ‘some flesh on the bones’ where we are able to make some conclusions about how a co-op award may compared to a mortgage (see for example this well known article in the New York Times), but we need some detail on the operation of the Big Bank here to ensure that vulnerable people are not subject to a problem they cannot easily get out of. It is also interesting to note that further criticisms from the housing sector have already begun to emerge here in the UK. According to the Financial Times today, “Phil Shanks, director of SAF Housing, a fund for the provision of housing for those in need of extra care, said the Big Society Capital concept is flawed because it does not overcome the main concern that many institutional backers of social enterprises have: the security of funding for public services”.
The implementation of the Big Society has been a huge mess thus far, but like all its non-organic projects, unless there is better detail and more substantial support from those who do give up a lot of their time in the third sector currently, the Coalition will find a substantial failure on its hands. Hopefully, their other non-organic project, the NHS restructuring, will go better.
(c) Legal Aware 2012
A very serious issue for a political party claiming to be Liberal
In fact, you can see the full judgment hosted on the HSJ website here.
These paragraphs are particularly noteworthy.
From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide- ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament. The whole process had to be paused because of the general alarm at what was happening.
This is a difficult case. The public interest factors for and against disclosure are particularly strong. The timing of the request is very important. We find the weight we give to the need for transparency and accountability in the circumstances of this case to be very weighty indeed. We find that at the time the TRR was requested and the DOH dealt with the application of the public interest test, the public interest in maintaining the s.35(1)(a) exemption did not outweigh the public interest in disclosure.
In contrast we find that at the time the SRR was requested and the DOH dealt with the application of the public interest test, the public interest in maintaining the exemption did outweigh the public interest in disclosure.
[SRR = Strategic Risk Register.]
Some would say that there are very serious questions for a political party purporting to be espousing liberal values to have allowed the tribunal to be forced to make such a judgment.
Best wishes to @legalbizzle for a new start tomorrow!
Very best wishes to @legalbizzle for his fresh start tomorrow.
Regular readers of this blogpost this morning will have wondered whether it was an April Fools’ Day joke, but it’s certainly true that @legalbizzle starts his new job tomorrow. @Legalbizzle strikes anyone reasonable as being inclusive of stakeholders in society, being very hard-working himself, incredibly patient, seen as a respected team leader, and passionate about explaining the complex relationships between law and business.
I certainly wish @legalbizzle well – he’s one of the good guys. He’s also an outstanding blogger – here’s when he hit the big time with an article in “The Guardian” on Nov 18 2011, which many of us very fondly remember.
Very best wishes!
[This video also stars @_millymoo, @obotheclown, @paulbernaluk, and @princessofvp.]
Best wishes video for @LegalBizzle
The Knowledge
In this blogpost, I won’t mention the “cab rank rule”, though I will devote the content of this blogpost to the characteristics of the London cabbies. In a nutshell, I think London cabbies are absolutely brilliant! I’m in an unusual situation of virtually having to use up all my quota of journeys in a fortnight. I am given a set number of journeys per year, and I’ve been going to and from Primrose Hill and the St Mary Axe and Holborn sites all year using a private hire cab. It costs me a huge amount of money, but now I have the luxury of spending my ‘ComCab’ card all at once as I’ve saved up so many journeys.
As a profession, I really admire London cabbies who are far superior to private hire cab drivers. It’s not that often they better nous than a satnav; take for example the cabby who avoided Euston Road tonight because of gas works and took me down Hampstead Road to avoid us being stuck in traffic for many minutes. I am talking about the two attributes which they seem to have, as a result of having survived “appearances”. Firstly, I understand examiners weed out any candidate who is prepared to lie to a candidate with questions like ‘Are you sure?’ Cabbies have told me it’s always best to acknowledge when you’ve reached the limits of your knowledge, and simply say when you don’t know something, even though customers like certainty. Secondly, examiners ensure that future cabbies are not easily wound up by the general public by asking provocative questions sometimes, I hear.
You can see how both attributes would be sought after in a City lawyer too…
Not to worry. It's the NHS, stupid!
What do you get when you fall in love?
A Tory with a pin to burst your bubble
That’s what you get for all your trouble
I’ll never fall in love again
I’ll never fall in love again
What do you get when you kiss a LibDem?
You get enough germs to catch pneumonia
After you do, the LibDem’ll never phone you
I’ll never fall in love again
I’ll never fall in love again
Don’t tell me what it’s all about
‘Cause I’ve been there and I’m glad I’m out
Out of those chains those chains that bind you
That is why I’m here to remind you
What do you get when you fall in love?
You only get lies and pain and sorrow
So for at least until tomorrow
I’ll never fall in love again
I’ll never fall in love again
I’ll never fall in love again
I’ll never fall in love again
A nice song though…
Work Fare or Time to Play Fair?
In November 2011, the Coalition announced proposals under which Jobseeker’s Allowance claimants who have not found a job once they have been through a work programme will do a 26 week placement in the community for 30 hours a week.
According to The Guardian in 2012, under the Government’s Community Action Programme, people who have been out of work for a number of years “must work for six months unpaid, including at profit-making businesses, in order to keep their benefits”. The Child Poverty Action Group said in 1999 the government’s announcement that lone parents and the disabled would have to attend repeated advice interviews for jobs under threat of losing benefits was “a step towards a US-style workfare system”.
The Guardian newspaper further claimed in February 2012 that businesses in the UK which take staff via “work for your benefits programmes” include Sainsbury’s, Argos, Asda, Maplin, TK Maxx, Matalan, Primark, Holland & Barrett, Boots, McDonald’s, Burger King and the Arcadia Group of clothes stores. Bookstore Waterstones withdrew from the scheme in early 2012. There has, however, been concern that the scheme offends the Human Rights Act [1998]:
The high street book store Waterstones has pulled out of a government scheme that employed unpaid jobseekers in its stores after a Guardian investigation uncovered the practice at one of its outlets.
More than a dozen other high street chains have been taking on unemployed workers for weeks without pay as part of the government’sWork Experience scheme and others like it.
In a case lodged in the high court, the government has defended itself against claims that the unpaid work experience schemes are contrary toHuman Rights Act legislation on forced labour.
(source: Guardian)
There was controversy later in February 2012 following the involvement of the Tesco supermarket chain in a government workfare scheme linked to the payment of benefits. An advert appeared on the Jobseekers’ Plus website in which Tesco sought permanent workers in exchange for expenses and jobseeker’s allowance. After the advert was highlighted by users of Facebook and Twitter, the supermarket claimed its appearance was a mistake and that it was intended to be “an advert for work experience with a guaranteed job interview at the end of it as part of a Government-led work experience scheme”. Here is one of the tweets caught in the crossfire:
A protest about this advert later caused the temporary closure of a Tesco store. Right to Work Campaign and unemployed activists protested against Tesco’s involvement in the Government’s “Workfare” Scheme, occupied a Tesco Express below Portcullis House on Bridge Street, opposite Parliament.
Clothing retailer Matalan subsequently suspended its involvement in the scheme in order to conduct a review of the terms of such placements.
Many thanks to Jamie Glenday who provided this perspective on this issue.
@JonSnowC4 discusses the summit for the Health and Social Care Bill
Dr Carter and Dr Poulter discuss with Jon Snow this evening today’s summit concerning the implementation of the Health and Social Care Bill.
Fair access to education, promoted by Prof Les Ebdon, is important for law students
Prof Les Ebdon CBE DL is to become Director of Fair Access to higher education.
It has been remarked that Ebdon, throughout his 44 years in higher education, and in particular his period as a vice chancellor, has developed an impressive record in improving access among lower socio-economic groups, from neighbourhoods with low rates of participation, and from black and minority ethnic groups.
Prof Ebdon is currently the Vice-Chancellor of the University of Bedfordshire. He attended Hemel Hempstead Grammar School (became The Hemel Hempstead School in 1970). Ebdon obtained both his BSc in Chemistry in 1968 and PhD in 1971 at Imperial College London. Ebdon was appointed Vice Chancellor and Chief Executive of the University of Luton in 2003, replacing Dai John. With the merger of the University and De Montfort’s Bedford campus in 2006 he became the Vice Chancellor of the new University of Bedfordshire. In August 2009 Ebdon, via the think tank “Million Plus”, made the controversial suggestion that students from less wealthy families be allowed entrance to universities based on lower grades.
BPP University College offers a unique opportunity for widening access to higher education. Like the new University of Luton and Bedfordshire, students want a high-quality professional education, and I am proud to be a student at a place which encourages excellence which is recognised by a plethora of employers. Recently, the Guardian newspaper observed the following.
With shrewd timing, as Scottish universities prepare to charge £9,000 a year to non-Scottish UK students from 2012, BPP University College – the UK’s only for-profit private provider with degree awarding powers – has announced it will set fees at £5,000 a year for its three-year programmes, and £6,000 a year for two-year programmes.
The announcement wasn’t only significant for the contrast with the Scottish universities, but more pertinently because it has deliberately moved to undercut all English universities with the exception of the Open University, which has set its fees at £5,000 for 120 credits (equivalent to a full year of study in a traditional university).
So with BPP aggressively positioning itself to undercut mainstream provision, and with a confident pitch of career-focused courses to deliver on the employability agenda, the foundations are surely set for an aggressive growth strategy to start snapping up increasing numbers of undergraduate students.
Whatever the official statement of BPP is regarding this appointment, which I have nothing to do with, my fellow students at BPP work very hard, and many of us will support the idea of people succeeding irrespective of whether or not they have gone to a ‘prestige’ university at some time in their life. That Les Ebdon has a proven track record in this impresses me. I am also mindful of fair access to education is vital in the wider context of fair access to the legal profession, which many of us have a vested interest in.
The quotation is from an article which first appeared in the Guardian here written by Aaron Porter on 8 September 2010, entitled “First or fail: BPP University College and Edinburgh University fees”. Shibley, the author, is the President of the BPP Legal Awareness Society, a Society run by BPP students for BPP students, to promote the importance of law and regulation to corporate strategy.
Is the purpose of the State to intervene when things go wrong?
Politicians have got to the point of indoctrination about the State being a drain on resources, and indeed the State, in the form of NHS spending, welfare benefits, defence and education does require much investment. Recent years have seen a blurring of liberal and libertarian values recently, with an accident coalition of Tory and liberal ideologies. This has not led to a consensus in key policy areas, for example control orders from the legislature’s perspective, but has unwittingly produced a sense of inertia. Prof Jeff Sachs writing about libertarianism and saying:
Yet the error of libertarianism lies not in championing liberty, but in championing liberty to the exclusion of all other values. Libertarians hold that individual liberty should never be sacrificed in the pursuit of other values or causes. Compassion, justice, civic responsibility, honesty, decency, humility, respect, and even survival of the poor, weak, and vulnerable — all are to take a back seat.
A major bone of contention is the welfare state, for example, has in fact improved the lives of the poor, weak, and vulnerable, nor that it and other forms of state intervention have served the causes of compassion, honesty, etc.. An argument can be made that the market can be left to look after itself, and indeed more tax interference leads to misuse of monies, and an ineffective State. However, this is to deny that the bankers in the financial markets, not the less well off members of the Society, were directly to blame for the market failure. So it’s clear to many that the State does need to intervene in the activities of some overpaid irresponsible people. What is less clear is how to deal with people with multi-million pound salaries who are not doing anything fundamentally more difficult than putting in a central line into a comatosed patient with hepatorenal syndrome on the ITU.
David Cameron has again criticised the ‘out of control’ City bonus culture and called for a new moral capitalism, and this is a carbon-copy of Ed Miliband’s conference speech in Liverpool at the Labour Conference in September 2011. This is no wonder as excessive bonuses largely do not act as an incentive, and indeed can be deincentivising or demotivating in relation to performance. Deincentivising not only for the individuals concerned who will take their foot off the pedal regarding their own performance, unless there is a strong performance-related pay relationship, and also demotivating for less well paid employees. This potential mismatch in interestsbetween the shareholders and the stakeholders interests in England can lead to the situation where a company makes millions in profits, while simultaneously laying off thousands of hard-working employees.
It’s perhaps unfortunate the government’s effort to crack down on excessive boardroom pay proposals – due by the end of the month – has coincided with the arrival of the bonus season at the big banks. There’s a danger that two related issues become condensed into one. Bonuses will fall because profits in investment banking, the source of most of the big handouts, will be down. The critical issue in banking is whether the bonus machine has been programmed to privilege employees over shareholders. Barclays is a useful example. It’s has been one of the healthier banks during the crisis but this superiority requires heavy qualification. For the past three years Barclays hasn’t earned returns in excess of its cost of capital, a basic measure of success at any profit-seeking company. Yet last year 231 key staff at Barclays earned an average of £2.4m each and chief executive Bob Diamond’s right-hand men, Jerry del Missier and Rich Ricci, got £10m each. Competition for investment bankers is almost non-existent. It is possible that the mechanisms of shareholder resolution in voting against excessive pay is not strong enough.
It is possible that the purpose then of the State is to intervene when things go wrong. This is the exact opposite to the philosophical argument presented by the Conservatives and the Liberal Democrats Party. It is the same argument for the State intervening in the market failure which means consumers have to pay high prices for utilities in an oligopolistic markets. Why Labour failed to do this is utterly irrelevant now, as Labour will not be in government until 2015 at the very least. And the state can intervene – the Coalition, if it wants to, can regulate on the payment of board directors. Most directors of FTSE 100 and mid-250 companies now enjoy at least two incentive plans and an annual bonus. It is only in cases of extreme catastrophe that a bonus is not awarded. These multi-headed arrangements are one of the chief reasons why board pay over the past decade and a half has comprehensively outpaced share prices: at present the FTSE 100 index stands at 1998 levels. A ban on executive directors chairing other companies’ pay committees would also be a sensible development. A ban would not be unhelpful, but nor would it be a cure-all. If greater shareholder involvement is considered a good thing (and it seems to be), why not allow investors to propose their own candidates to chair pay committees?
