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Brian Sloan
An academic lawyer's view on life, law and liberalism
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2nd-Apr-2009 03:33 pm - Owing more than one has to give
I'm sympathetic to the plight of Brian Myerson (to the extent that I'm capable of being sympathetic to an individual whose wealth was once so great). He and his soon to be ex-wife agreed that he would transfer to her by installments a sufficient amount of his property and the value of his shares that she would end up with 43% of their combined assets (as valued at the time of the agreement). The agreement was rubber-stamped by the judge and therefore binding for almost all intents and purposes.

Given the economic climate that subsequently prevailed, it is unsurprising that the value of the shares plummeted. Under the terms of the agreement, Mrs Myerson became entitled to 105% of their combined assets, such that Mr Myerson will probably have to borrow money in order to meet his obligations. Yesterday, he lost his appeal against the order rubber-stamping the agreement (although he can still try to have it varied to a limited extent).

I understand how the court reached its conclusion on the basis of existing legal principles. Of course, there was an inherent risk in Mr Myerson choosing to transfer a fixed amount and yet retain his shares. But I'm not convinced that a fall in the value of the shares from £2.77 1/2 each on the date of the order (19th March last year) to 27.5p can be described as part of the "natural processes of price fluctuation".

In the commercial context, of course, Mr Myerson would receive no sympathy: these things happen. But it is somewhat ironic that such inflexibility has been shown in an area characterised by judicial discretion and the aim of a fair distribution of the parties' assets, where courts have refused to make pre-nuptial agreements binding. If such a catastrophic change in fortune had occurred before this couple had divorced, both of them would have had to tighten their belts. It is difficult to see why the same should not apply now that their marriage has been dissolved.
12th-Jan-2009 10:46 am - Social mobility and the professions
So the government is on a drive to promote social mobility, with particular focus on apparently "elitist" professions. I'm in favour of this in principle. In some cases, the statistical bias towards those who are privately educated means that the profession in question cannot possibly reflect the diversity of the available raw talent.

My concern, however, is that we will lose sight of the primary function of each of the sectors in question. The main function of the bar, for example, is to provide high-quality legal services to the public. Of course, in doing so, it should ensure that there is a genuinely level playing field for those who aspire to be barristers, and certain allowances must be made for those whose talents have not had the opportunity to manifest themselves fully. Social mobility will of course be a beneficial side-effect of this.

The problem comes if there is a noticeable drop in standards as a result of a disproportionate focus on social mobility. I don't necessarily think that this will be the case, but I think it's something that we should be vigilant about if we are going to use entry to the professions to serve wider social goals in a utilitarian manner. The same can be said of universities. Admittedly, this is true to a lesser extent since universities serve a legitimate and important social goal, and provide vital opportunities for social mobility as well as striving for academic excellence.

But the fundamental point is that neither the professions nor the universities can or should be expected to compensate fully for deficiencies (i.e. governmental failings) in the education system or other areas of social policy. This initiative could easily turn into an exercise in buck-passing.
1st-Oct-2008 10:10 am - Fathers and Contact
There has been an angry reaction to a government-backed report, which effectively concluded that family courts were not biased against non-resident parents (usually fathers) on the whole. There are indeed problems with drawing this conclusion from the fact that most NRPs are successful with their contact applications, and that only 10% of cases require a court order at all. The researchers themselves avoided such a simplistic conclusion, which overlooks, inter alia, the difficulty of enforcing contact and the fact that an NRP has to even consider going to court in the first place in order to secure what he or she probably considers a right.

One of the solutions suggested by those reacting to the report is a "presumption" of 50:50 residence. There is a certain elegance about this solution on paper. But it is so easy to forget the child in these discussions. Think about how you would feel if you were forced to split your life down the middle for the benefit of someone else, with two different homes and possibly two different sets of friends. It is unlikely that a court would enforce a presumption if it required a child to attend two different schools that were miles apart, but it may be undesirable even to think in terms of one.

Children are vulnerable individuals, and society has an obligation to ensure that they flourish. Part of that obligation, in most cases, entails a requirement that a child should develop or sustain a meaningful relationship with both his or her parents. But a child should not be used as a pawn in a point-scoring exercise between those parents.

An alternative to a presumption might be a "yardstick", similar to that introduced in the division of property on divorce. This could mean that any departure from 50:50 residence has to be carefully considered and justified. But it may be so easy to justify a departure in the interests of child welfare that the yardstick itself is meaningless.

A presumption, in any case, would be too difficult to implement, and it would not prevent legal wrangling either. There are two common features of separating couples: ignorance of their legal position and differences of opinion. If those differences of opinion are serious enough, they will remedy the ignorance of their legal position, and some will end up in court in the process. By the time the court comes to make an order, it will be upsetting the status quo that has inevitably developed in the interim. This, in turn, may well be considered detrimental to the child's welfare in itself. In many cases, we would therefore end up in exactly the same position as that which currently exists.

I do not intend to propose a solution to the problem of the relationships between non-resident parents and children. NRPs are often given a raw deal by a combination of factors, and resident parents should not be allowed to use their position to their advantage by stalling and flouting court orders. All I wish to say is that we should not forget the child, and as far as possible avoid characterising these disputes as a battle between two parents.
25th-Sep-2008 07:13 am - Modernising Monarchy
There are proposals to remove the bar on Catholics from succeeding to the throne. A first-born daughter would also be allowed to succeed in preference to a second-born male, among other things.

Even as a republican (note the small "r"), I welcome these proposals. But there's one slightly delicate matter that would have to be resolved: what would happen to the position of the monarch as Head of the Church of England if a Catholic did succeed to the Crown?
14th-Sep-2008 09:15 am - Proms
Did anyone else notice that Bryn Terfel's jacket had an Irish tricolour on the sleeve, but the Cross of St Patrick was nowhere to be seen? Controversial!
3rd-Sep-2008 11:04 am - Cambridge to phase out the LNAT
The University of Cambridge has announced that it will stop using the Law National Admissions Test after this year's application process (for 2009 or deferred 2010 entry). It says that:
...the numerical scores awarded to applicants in the multiple-choice section of the test do not provide sufficiently distinctive and useful information within the Cambridge admissions process to justify applicants being required to sit the LNAT and pay the fee involved in doing so.
It's likely that future applicants will be required to write a timed essay in Cambridge as part of the interview process.

I fully understand why this decision has been taken. Numerical scores produced by a multiple-choice test do not sit well with the qualitative Cambridge interview process for a largely literary subject like Law. Moreover, I'm sure applicants did not relish the prospect of paying an additional fee or of taking yet another exam in school.

On the other hand, the decision removes an element of standardisation that may have been important in encouraging some people to apply to Cambridge, especially given the mystique that can be generated (unfairly in most cases) by the interview process.
So Sarah Palin has a 17-year-old daughter who's pregnant and unmarried. I agree that this is a private matter and it's been good to see people from across the political spectrum emphasising that.

But the difficulty with some Republicans (though not necessarily Ms Palin) is that their policies are dressed up in such conservative moralising rhetoric that intrusion into their family lives becomes easier to justify. Put simply, if a politician does not consider certain things to be "off limits" in terms of law and policy as far as ordinary citizens are concerned, one might wonder why it should be "off limits" for him or her.
27th-Jul-2008 11:33 am - Lord Carey on the Mosley Debacle
Overall, I'm very disappointed with Lord Carey's comments on the Mosley case in today's News of the World. (If I'm honest, I'm disappointed by the fact that he has chosen to write in that particular publication at all, albeit suprisingly briefly. But I suppose he has to find a way to reach people.)

I have to admit that I haven't made up my mind about the result in the case itself. On the one hand, privacy is an immensely important value. Moreover, it is increasingly under threat in modern society, even if that threat is caused by the state rather than the media for most of us.

On the other hand, press freedom is of course vital in a democratic society. The public interest test applied in these cases, admittedly, is subjective and effectively retrospective. Newspaper editors are expected to take a gamble before publishing certain material, one that they may be less willing to take as a result of this case.

That said, I reject Lord Carey's contention that Eady J. has created a "wholly new privacy law". Privacy has permeated several areas of English Law for centuries. The Human Rights Act (an Act of Parliament) has enabled privacy to be referred to more explicitly than before, and Eady J. may have extended the notion too far. But it's worth bearing in mind that part of Mr Mosley's action was argued in terms of breach of confidence. A famous case on the doctrine dates from the Victorian area, and involved an action brought by Prince Albert about some etchings of the Royal Family! Perhaps unsurprisingly, the Right have used this case as an opportunity to attack something with a vague connection to Europe.

What really bothers me, however, is that Lord Carey (and others) have conveniently espoused the cause of press freedom, thereby sanctioning the kind of underhand dealings that led to the publication of this story, mainly because of their moral repugnance about the particular kind of activities in which Mr Mosley engaged. Lord Carey complains about our "celebrity-obsessed" age, while failing to acknowledge that publications of this kind are both a cause and a consequence of that obsesssion.

Would I engage in sado-masochistic activities myself? No. Do I find it strange and slightly uncomfortable that some people choose to engage in them? Yes. Do I think it's morally justifiable for married men to engage in this sort of thing? Not particularly.

Nevertheless, I am concerned at the idea of excluding others from performing certain functions because of what they do with consenting adults in private, especially if it does not reduce their capacity to do the job. I admit that Max Mosey's position has in fact been compromised, but that is purely because of the (apparently unlawful) publication itself. Moreover, if adultery were sufficient to disqualify people from holding any public office, as Lord Carey appears to suggest, we as a society would be worse off for it.

Lord Carey apparently finds it "deplorable" that what consenting adults do behind close doors should be considered private. This argument that there is no distinction betwee public and private, and that such actions can damage "the fabric of our society", smacks of Lord Devlin's legal moralism. That is a theory that most legal writers and philosophers have rejected for decades. Whatever conclusion we reach about the proper balance between privacy and press freedom, a liberal democracy should recognise that both are valuable and consign Devlin's arguments to history.
The government is to fund a board of Islamic scholars, to be hosted by the universities of Oxford and Cambridge, who will debate "critical issues affecting Muslims in the UK".

I'm all for engagement and scholarly debate, and I'm sure that the members of the board will adopt a rigorous academic approach. More importantly, I despise incediary religious extremism in all its forms.

Nevertheless, I remain uneasy about the consequences for freedom of religion if the government is seen to "approve" particular interpretations of religious texts. I also think there's some truth in the MCB's allegation that the government views British Muslims "through the narrow prism of security".
I don't wish to speculate on who killed Robert McCartney, who else may have been involved or why few witnesses have come forward. Nevertheless, I was struck by the reaction of Mr McCartney's sister, Catherine, after the murder trial. While admitting that she was "very disappointed" about the acquittal of the main suspect in the case last week, she said:

"Given the evidence, I believe that the judge's verdict was correct".

This is an admirable counter-example of the tendency to bay for blood in the aftermath of a tragedy (regardless of whose it is) and forget entirely about the importance of a fair trial. The tendency is exhibited not only by the relatives of the victim (who may be excused), but also by the tabloids and the general public (who may not).
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