News

Autistic man’s phone marriage invalid

A telephone marriage between a woman in Bangladesh and an autistic man in England was not valid under English law, the Court of Appeal has ruled. In City of Westminster Social and Community Services Department v C the parties agreed the marriage was legal according to Sharia and Bangladesh law and that, under Sharia law, it had taken place in Bangladesh. However, the appeal judges ruled that under English law, the groom’s disability prevented him from being able to validly consent to the marriage. The court was also swayed by the fact that C’s parents intended that C and his wife should live permanently in England. Thomas Eggar associate, Margaret Hatwood, says: “It would be quite wrong to find the marriage valid where one party did not have the mental capacity to enter into a marriage. “Moreover C lacked the capacity not only to consent to the marriage itself but also to sexual intercourse.” Lord Justice Wall said the appeal threw up a profound difference in culture and thinking between domestic English notions or welfare and those embraced by Islam.

“This is a clash which…this court cannot side-step or ignore,” he stated. (See law reports, p 479.)

Information Commissioner to focus on reducing risk

Reducing the risks associated with abuses of personal data, rather than enforcement will be the future focus of the Information Commissioner’s Office (ICO), according to a new strategy document. The ICO says it doesn’t have the funds to tackle everything in its remit comprehensively and needs to prioritise resources to reduce data protection risk as far as possible, and deal with cases where the greatest number of individuals are suffering the most harm. Areas the ICO says it will focus on include fighting the unlawful trade in personal information, resisting the increasing surveillance of UK residents, scrutinising increasing information-sharing between organisations, and carrying out data protection supervision. Rollits associate Tom Morrison says the idea of encouraging compliance rather than just punishing breaches of law is not new, but that the ICO seems to be suggesting the public sector will be under sharper focus than those in business in future: “The danger is that the private sector perceives this latest move as a lowering of the risks associated with non-compliance, although one would hope that recent high-profile incidents involving household-name businesses will still be fresh in the minds of those sat around many boardroom tables.” He adds that the cases the ICO fails to pursue could still be progressed in private actions.

Court clarifies confidentiality in arbitration proceedings

Courts will not allow arbitrating parties to hide behind the cloak of confidentiality if it means foreign courts may be misled, the Court of Appeal has ruled.

In Emmott v Michael Wilson & Partners Ltd the court confirmed that the confidential nature of arbitration should be respected and that it will guard this “substantive rule of arbitration law” with vigour—but that exceptions will be made. Arbitrating parties, it said, can or even must disclose details of the arbitration where: the arbitrating parties consent; disclosure is necessary for the protection of the legitimate interests of an arbitrating party; the court permits it; or the interests of justice require it. The court said the latter exception was not limited to the interests of justice in England, but also extended to cases with an international element.

Alexander Gunning, a barrister at 4 Pump Court, says the ruling clarifies that a party seeking to rely on arbitration documents against another party should apply to the arbitral tribunal for permission to disclose: “This case serves to underline the fact that it is not open to a party, an expert or a witness to advance materially different cases before different tribunals with impunity—and that where this appears to be happening the ‘cloak of confidentiality’ will be lifted.”

Gunning says it remains to be seen to what extent the courts will require disclosure of documents from arbitration proceedings to third parties. “The judgment seems to suggest that a wider disclosure of the outcome of certain kinds of arbitration proceedings—particularly those arising in the London insurance market—may be desirable. I doubt that is right,” he adds.

All change to the UK’s constitution

Sweeping changes to Britain’s constitution will be made if new proposals announced last week by the government come into force.

A white paper—Governance of Britain: Constitutional Renewal—and an accompanying draft Constitutional Renewal Bill, includes plans to revamp the role of the attorney general, strengthen the Law Commission’s role and aims to give Parliament more ability to hold government to account.

The prime minister’s power to declare war will be curbed, with the draft Bill forcing him to seek the approval of the commons before committing forces into armed conflict abroad. The prime minister will also no longer have a say in appointing Supreme Court judges, and the Lord Chancellor’s role in judicial appointments below the High Court will be reduced. Greater input in the selection of some public officials will be given to the House of Commons.

In a U- turn which will be applauded by free speech advocates, restrictions on protests around Parliament will also be lifted. There will now be no legal requirement to give notice of demonstrations around Parliament or get the authorisation of the Metropolitan Police Commissioner. The government has also pledged to place a statutory duty on the Lord Chancellor to report annually to Parliament on the government’s intentions regarding outstanding Law Commission recommendations.

Commenting on the draft Bill, Bar chairman Tim Dutton QC says: “We welcome any move on the part of the government to strengthen the relationship between Parliament and British citizens, and which renders government accountable. It is vital that any Constitutional Renewal Bill results in an improved balance of power between Parliament and government, and we hope the Houses of Parliament will consider carefully all the proposed changes to our constitution.” Law Commission chairman Sir Terence Etherton says: “The Lord Chancellor’s proposal, together with other current proposals, would, if implemented, constitute the most important structural changes in the relationship between the commission and Parliament and the executive since the establishment of the commission in 1965. They would improve significantly the promotion of the citizen’s right to accessible and intelligible law.”

Coroners Bill revamped after consultation

Government plans to reform the coroner system have been significantly revamped following a consultation process with bereaved families.

Changes announced to the draft Coroners Bill include a strengthened obligation on organisations to respond to coroners’ recommendations to prevent future deaths, a revised appeal system and new inspection arrangements for the coroners service.

Bolt Burdon Kemp partner Rosamund Rhodes-Kemp says it is refreshing to see the consultation dialogue actually working and modifications being made to the Bill in such a clear and open way. She says, however: “It is disappointing that in civil cases public funding for the families of the subject of the inquest will remain available in only a very few situations. There will continue to be a huge imbalance between the families and the organisation or person on the other side as they will inevitably have insurance and legal representation.”

Recent well-publicised deaths overseas, she says, makes the removal of limitations to investigate deaths abroad pertinent and timely and the provision for notification of relevant deaths by doctors will hopefully make another Shipman scenario less likely. She continues: “The extension of the decisions that can be appealed is surprising and may put a strain on the new system if multiple appeals clog up the existing resources of time and staff.

“The most fundamental aspect of the changes is that we may now see a transparent, unified and consistent system for the appointment and training of coroners and their staff which should go a long way to ensuring a more transparent, unified and consistent inquisitorial process.”

Rhodes-Kemp maintains that proper maintenance and modernisation of coroners courts by local authorities is welcome as many of the courts are in a dilapidated state. “External inspection of these courts is a necessary safeguard to ensure standards and consistency are maintained,” she adds.