Sale of the Mendham Collection

The sale of valuable books from the Mendham Collection, which has been in the possession of the Law Society since 1869, has been causing controversy. It is astonishing that this has not been reported in the Law Society Gazette and that the Law Society has not responded to the recent letters in the Times. More information about the history of this collection and the Law Society’s involvement is to be found on the website of David Shaw,

https://sites.google.com/site/davidshaw61/publications/mendham-collection

and the tweets of Dr Alixe Bovey of the University of Kent’s Centre for Medieval and Early Modern Studies @alixebovey. I gather that the University has contacted the Attorney General of England and Wales who does not agree that the Law Society received the books on trust or conditionally.

The controversy has spread to the Netherlands and Germany – see http://kulturgut.hypotheses.org/194.

The Law Society has now replied to my letter, in which I queried whether the Royal Charter powers of the Society included the acquisition of a collection like this, which the Law Society has recognised does not serve its purposes. It never did serve its purposes and so acquiring it was in my view clearly beyond the powers of the Society. It was only authorised by the Royal Charter to acquire items that it considered ‘requisite’. This means that the ownership never passed to the Law Society. Also it was the Law Society of the United Kingdom in 1869 which then included the whole of Ireland and Scotland as well as England and Wales. Ireland, Northern Ireland and Scotland now have their own Law Societies which surely must be entitled at least to a share of the proceeds, and to be consulted, even if the Law Society of England and Wales can claim to be the same body (with some limbs lost) as the 1869 Society (which I doubt). I do not agree that trading in books which are part of the historical heritage of our countries and which properly belong in a University or Cathedral Library, does anything to enhance the public standing of our profession.

The Law Society has sent me a copy of the minutes of the meeting of the Council of the Law Society meeting on Friday 4th June 1869 which read as follows:

“Read the following letter from Mr Collette 23 Lincoln’s Inn Fields London WC – 1 June 1869

“Dear Sir

The late Joseph Mendham made a very valuable collection of Tracts & Books on the Roman Controversy, and also of works of the old Fathers. These Books have come to the Widow of Mr Mendham’s Brother, and by her are placed at my disposal.

She is most anxious that they should be kept together & be called the Mendham Collection. I have got her permission to present them to the Library of the Law Institution. If they do not go there they go to the King’s College Library. The collection is more valuable than at first sight appears. I send an Index of some of them. If your Library will accept them & call them the Mendham Library I shall be able to have them duly presented. Your answer will oblige. Yours truly. To the Secy of The Law Institution – A H Collette.”

Resolved that the Secretary be directed to thank Mr Collette for his letter and request him to express to Mrs Mendham the acknowledgments of the Council for the handsome offer which she has been so kind as to make, and to state to her that the Council will have great pleasure in accepting it.”

If the Law Society had power to accept this gift, on these conditions, the offer and its acceptance, consideration, and the intention to create legal relations, create a clear and legally binding contract. If this is now repudiated to the shame of the profession, arguably title passes to King’s College or reverts to the Mendham family or if extinct the Crown as bona vacantia.

If acceptance was not authorised by the Royal Charter, the title never passed to the Society and it remained with the donor.

Councillors can say prayers

bideford-judgment-final

I find it ludicrous and outrageous that the National Secular Society objects to prayers being said at the start of Council meetings, and even more objectionable that a judge has accepted their fallacious argument that, just because prayers are not mentioned in the Local Government Act 1972, it is unlawful for prayers to be said at meetings.  Contrary to what was said in court on behalf of the claimant, there is no list of things councils can do in the Act. Anyway it is the councillors and the chaplain who pray not the council which is an artificial person and therefore cannot pray. Councillors and their chaplains do not need permission from Parliament to speak in any way they like, which is presumably why the legislation does not give them that permission.

It is right and proper for prayers to be said at Council meetings, for councillors and the public to join in. In a multi-cultural society this may involve inviting representatives of the different religions which are active in the council area, like on Thought for the Day. I resent unnecessary interference with customs and traditions that most people respect, when as it is quite clear to me that there are no legal grounds for the interference.  It is entirely a matter for each council to decide whether to hold prayers and what form of prayers to use.

I have written to the Lord Chancellor 11.02 and await with interest the appeal decision.

25 August 2012

The Rt Hon Mr Kenneth Clarke MP PC, Lord Chancellor and Secretary of State for Justice, has still not replied to my letter of 11 February. I know that he is a busy man,  and will have received a large number of letters on this subject.  There will be no appeal decision, and matters have now been overtaken by the Localism Act 2012, which has confirmed that principal Councils have the same powers as a natural person.

Legal Aid under threat

Kenneth Clarke complains that legal aid is costing the average taxpayer £39 per year. Under the Legal Aid, Sentencing and Punishment of Offenders Bill, now before Parliament, legal help, and representation in family and other civil proceedings will be severely curtailed, which will do severe harm to the rule of law, and cause widespread injustice. It will cause chaos in the civil courts as there will be more litigants-in- person who are unable to prepare and present their cases properly.
The Liberal Democrat Lawyers Association has published its Autumn 2011 Journal which is dedicated to the issue of legal aid. LEGAL DEMOCRAT JOURNAL Autumn 2011 PDF 23.9.11
which I hope all in Parliament will read and take note of. I suggest that the Bill is withdrawn and that the Justice Select Committee conducts a review of legal aid and comes up with some new ideas which will enable everyone in society to benefit from legal advice and assistance when they need it. The existing householders legal protection insurance is inadequate but surely the average taxpayer would be happy to pay £39 per year for an effective insurance policy. In this way access to justice would be enabled.

Defamation Bill

I have responded to the Ministry of Justice Consultation Paper on the Defamation Bill expressing my own views.
Generally I don’t think the draft Bill goes far enough, and wider definitions are needed for qualified privilege. It needs to be made easier for those who are defamed to get redress and easer for those falsely accused of defamation to defend themselvesdefamation-consultation-questionnaire. This means not front loading the procedure too much. I don’t think the single publication rule will improve the law, as there is a very short limitation period and there is no need for libellous allegations to be repeated after the limitation period has expired. If there is to be a single publication rule, there needs to be a safeguard to prevent injustice resulting.
Costs need to be more strictly controlled.
Claimants are free to choose the most expensive lawyers, but they cannot reasonably expect defendants to pay all their costs if they do so and win.
The deadline for submissions is 10 June and the draft Bill is already being discussed by a pre-legislative scrutiny committee. All submissions will be reported to the committee. Anyone who has differing views should make his or her own submission.

Marriage Visas: Pre-Entry English Requirements for Spouses

Marriage Visas: Pre-Entry English Requirements for Spouses.

Human Rights – marriage and family life

O’ Donoghue v The United Kingdom [2010] ECtHR Case on Right to Marry

Written ministerial statement on English language requirement | Home Office.

marriagevisasthewayforward

Quila v Home Secretary [2010] EWCA Civ 1482

ILPA and JCWI LETTER TO DAMIAN GREEN 1.10.10

Damian Green’s Letter

I have been reading on another WordPress blog about the problems faced by anyone from abroad who is marrying a UK citizen getting the visa required to enable them to settle together in this country.

I have checked back and see that several respondents to the consultation paper warned the Minister Liam Byrne that this change would probably infringe Articles 8 and 12 of the European Convention on Human Rights.

Theresa May as Home Secretary then introduced the new immigration rules shortly after coming to office – see the link above to the Ministerial Statement.  The Labour Party and the Conservatives are jointly responsible for this breach of human rights.

The Courts have said they could not annul the Immigration Rules, but in the Quila case (link above) the Courts have already declared that the rule about the sponsorship of people under 21 in the Immigration Rules, which was based on the 2008 Consultation Paper,  should not be followed as it is an arbitrary rule, contrary to Article 8.

I thought the same would happen with the rule about English language testing.  The High Court has now decided otherwise, in the case of R (Chapti) v Home Secretary [2011] EWHC 3370 (Admin), on the narrow ground that the language testing rule does not prevent a couple being reunited and marrying abroad, so Article 12 is not engaged.  The judge said Article 8 was engaged, but that the rule was not in itself a disproportionate interference with family life. He recognised, however that “it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual’s Article 8 rights”.

The question is, should not the UK respect the right of its citizens to to marry, by allowing them to do so here, rather than relying on the another state to allow the British citizen to enter it to marry?  How would we feel if we were not allowed to enter Pakistan to marry, without having learnt Urdu first?

It remains to be seen whether this decision will be reversed on appeal or by the ECtHR.

The European Court of Human Rights has already ruled on the approved certificate scheme in the O’Donoghue Case, which infringes the Convention and the Government is now bringing in a remedial order to abolish the scheme. This was partly because  Church of England marriages were exempted from marriage restrictions, which was considered discriminatory.

There is the problem of forced marriage and sham marriage, but it is wrong that those who have genuine marriages or other relationships should be adversely affected by a rigid and unreasonable law which inteferes with their personal freedom in a very serious way.

It is clear from David Cameron’s latest speech that he is unwilling to pay heed to the Liberal Democrats in Government who want to rectify this.  Even decisions of the European Court of Human Rights are ignored.

It still seems to me that the English language requirement is discriminatory, disproportionate and unnecessary. A spouse who is allowed to live with his or her partner in this country is far more likely to be able to learn English than one who is kept out. This has been presented as a way of helping immigrants to integrate when they are allowed to come here, but the delay in coming here caused by the  need to learn English first does not reduce the time required for integration at all – it only lengthens it.  This applies to families and couples of all kinds, not just married couples.

I see that the Joint Council for the Welfare of Immigrants and the Immigration Law Practitioners Association wrote to Damian Green the Immigration Minister about this (see link above).

I have been provided with a copy of Damian Green’s reply (see link above).   I think this shows how much we need to be concerned about the Tories’ attitude to human rights.

Abolition of Chancel Repair Liability

One of the law reforms I would like to see is finally to lift the burden of chancel repairs from the shoulders of home owners.

Of course, this reform would not relieve the Church Commissioners of their existing liabilities to parishes for chancel repairs, nor those of, for example, Oxford and Cambridge colleges, based on their receipt in 1936 of the compensation stock from the Government, on the extinguishment of tithe rentcharges by the Tithe Act 1936.

The extent of the Church Commissioners’ liabilities (and by extrapolation, the size of the whole problem) can be judged from the Church 2010 AGM Pastoral Committee report which can be found on http://www.churchofengland.org.

It is not enough that the Government has made chancel repair liability an “overriding interest” only until 12 October 2013.  The generally accepted wisdom is that after that date it will only affect existing property owners who bought before 13 October 2013 or who buy after registration.  Perhaps it is assumed that the Chancel Repairs Act 1932 will be amended before 13 October 2013 to state that owners whose registered title has priority over the chancel repair liability, will have a defence to any claim.  But the Government has not expressed any willingness even to consider making any such change, or any change at all, to this legislation.  Chancel repair liability does not, to my mind, fall within the definition of an interest in land, some right over or affecting land, in section 32 of the Land Registration Act 2002.  This means registration is unnecessary, pointless and irrelevant.  It should not be registered at all.

It is a shame that the Government refused to do anything about it when the Law Society made it clear in its Submission submission_ChancelRepairLiability 6 years ago that Solicitors generally felt the liability was an anachronism that caused unnecessary expense in conveyancing and no longer served any practical purpose.

We now know that the Church is actively looking for properties to register the liability against.  A case in point is Broadway in Worcestershire, where the PCC has actually applied to register chancel repair liability notices against the titles of 30 people, who are alleged to own land which was allotted to the Earl of Coventry as lay rector under an enclosure award of 1771.  They are all entitled to object and will be advised by their solicitors how to do so.  The Bishop of Worcester and the PCC argue that all this is having a damaging effect on the mission of the Church, but they  seem to have been intimidated by someone into thinking they have to register unless the Charity Commission agrees otherwise. This is really no business of the Charity Commissioner.  I am pleased to hear that the Charity Commission is supporting the decision of the PCC of Broadway not to pursue its applications.

Mark Hill the well known ecclesiastical lawyer has argued in Church Autonomy in the United Kingdom by Mark Hill that the Church of England should have autonomy.  However, privileges come with duties and one is surely to observe the human rights of parishioners.

Andreas Whittam Smith, the Church Commissioner, has stated publicly that the Church should be more hard-nosed in managing its investments, so abandoning the ethical investment principles which were defended by Lord Harries when he was the Bishop of Oxford. Harries v The Church Commissioners for England (1993)

It is also a shame that there has been no recent debate in the General Synod. Still the impression is given that the Church is not particularly interested in the effect the old ecclesiastical law still has on ordinary people who may not be church-goers, or what the preservation by neglect of outdated ecclesiastical law says to the public about the Church.

The General Synod of the Church of England debated this in 1982 and accepted the report of its standing committee, calling on the Government to phase out the liability over 20 years.  This would have meant that property owners would not longer be liable for chancel repairs. Most of the liability passed to the parochial church councils in 1936, as the Government paid compensation to the Churches when it ended tithe rent-charge, under the Tithe Act 1936.

The remaining liability is an anomaly and an unnecessary complication to the conveyancing process for home buyers.

The standing committee report General Synod Standing Committee – Chancel Repair Liability – Report GS 515  is clear about the reasons why the Synod wanted Parliament to abolish the liability.

The debate on the report in the General Synod also makes interesting reading -Transcript of Proceedings of General Synod 18.2.1982.

It is the parish churches, rather than the Synod or Church Commissioners, that in theory might gain from the liability, but in practice hardly anyone in the parishes wants to know.

I have submitted a paper on this to the Ministry of Justice and the Law Commission.  You can read an abridged version of it hereCHANCEL REPAIR LIABILITY LAW COMMISSION SUBMISSION 18.03.2011

Repeal of the Chancel Repairs Act 1932 would simplify conveyancing, and make the law fairer to everybody, including the churches.

Chancel repair liability is a complicated subject, as you can see from some of the case reports I have looked at:

Bishop of Ely v Gibbons

Walwyn v Awberry

Wickhambrook[1]

Wise v Metcalf

Representative Body of the Church in Wales Case

Chivers v Air Ministry

Duke of Rutland v Bagshaw

PCC of Aston Cantlow v Wallbank:

http://www.bailii.org/uk/cases/UKHL/2003/37.html

Aston Cantlow PCC v Wallbank [2001] Court of Appeal EWCA Civ 713

How our forebears tied themselves in knots over this ludicrous law!

The Law Commission has decided not to include chancel repair liability in its 11th review programme this year, but Lord McNally  told me that he has referred my submission to his ministerial colleague Jonathan Djanogly MP in the Ministry of Justice.  Mr Djanogly decided to leave the law unchanged.  The Law Commission will only consider proposals for law reform if government ministers are at least willing to look at implementing its recommendations.

The Legal Advisory Commission of the Church of England has given advice to PCCsLegal Advisory Commission advice on chancelrepairliability that members of PCCs could become personally liable (presumably to the PCC itself) if they decide not to enforce the liability. But the PCC is independent of the Church of England’s central institutions and neither they or the Charity Commission can in reality interfere with a genuine decision of the incumbent and PCC made on the basis of Christian charity and good neighbourliness.

The Legal Advisory Commission itself recognised the serious pastoral difficulties which could result from a divisive legal case in which the Church took certain individual parishioners to court, who had no particular moral obligation to the Church.

A Westminster Hall Debate on Chancel Repair Liability 17.10.2012 debate on this subject took place on 17 October 2012 in Westminster Hall – the informal debating chamber of Parliament.

Any letters from campaigners on this subject should be addressed to Helen Grant MP, Ministry of Justice, 102 Petty France London SW1H 9AJ, or your MP.  In the debate Helen Grant (the Under-Secetary of State who took over from Jonathan Djanogly) helpfully promised to keep this matter under review.

I have now written to Vince Cable MP who is the Secretary of State for Business Innovation and Skills, who responsibility for the Land Registry. Vince Cable 14.08.2012. He should now revoke the land registration provisions while the debate takes place on repealing the Chancel Repairs Act 1932.  There may have to be a judicial review of the registration order. I have also sent a copy to the Archbishop of Canterbury.

I am pleased to report that my letter was referred by Dr Cable to the Land Registry Head Office, who considered the points I raised (though their role is not to campaign for law reform).  In response I have drafted a new Land Registration (Transitional Provisions) Order Draft Statutory Instrument, which would, if signed by Dr Cable, immediately stop the registration process and allow the Land Registry to cancel the notices which have already been registered blighting people’s property titles.  I have sent it to the Land Registry Head Office.

This would then enable Chancel Repair Liability to be forgotten about again and to take its proper place once more as a historical quirk of our law which is of no practical application, and allow time for a debate in Parliament on repealing the 1932 Chancel Repairs Act.

If you receive a letter from the Land Registry saying that the a Church PCC has applied to register a notice of chancel repair liability against your title, it is advisable for you to consult a solicitor or barrister immediately.  There are in general objections that can be made to these applications. Nothing in my blog is to be contrued as legal advice.