Discrimination Against Pregnant Women in the Workplace

Millie Parkes (Student)

It has become a well-known fact that the United Kingdom is suffering hardship in many sectors, but the threat of job-loss and redundancy for pregnant and women with young children is widely increasing.

Joeli Brearley, founder of the charity Pregnant Then Screwed, has recently said that the pandemic has caused a surge of discrimination against pregnant women and mothers at work.

The Law

The main law which should prevent such discrimination is The Equality Act 2010.

For pregnant women specifically, the Act states that it is unlawful to be discriminated against for being pregnant or suffering a pregnancy-related illness. If you are it may mean that you can take your employer to a tribunal.

Protection from Discrimination as a Pregnant Woman (and After!)

From the time that you become pregnant until when your maternity leave ends (if eligible) or two weeks after you child was born (if not eligible), there is a protection period. This protection period protects you against discrimination within the workplace.

Even after giving birth and returning to work, if you have been treated unfavourably after this, you could still be protected against discrimination because of your sex.

Similarly, it is unlawful to discriminate against you for:

  • Being on maternity leave
  • Having been on maternity leave
  • Trying to take maternity leave, which you are entitled to.

Reversing the Progress During the Pandemic

Brearley highlighted that 15% of mothers and pregnant women (in a survey of 20,000 mothers) have been made redundant or expected to be, during the pandemic. This is said to be reversing the progress of an increase in maternal employment by 9% in the last 20 years.

Brearley’s charity ‘Pregnant Then Screwed’ also emphasised that prior to the pandemic, they would provide legal advice to around 3,000 women per year, who were experiencing pregnancy and maternity discrimination in the workplace. Since the pandemic, they have provided legal advice to over 32,000 women – an almost 1000% increase.

The Women’s Budget Group also explains their findings for women to have been discriminated against more-so throughout the pandemic compared to their spouses, by finding that ‘ Of those furloughed, mothers were more likely to be put on furlough to look after their children (27%) than fathers (23%) and One in five mothers were made redundant or lost hours because of caring responsibilities, compared to 13% of fathers.

Traditional stereotyping

Brearley added that ‘there are deeply entrenched gender stereotypes that mean women blame themselves when they get pregnant and get pushed out of their jobs.’ This basic sexism is all too clear according to the British Social Attitudes Survey, which highlighted that one in five people think women with child under school age should stay at home.

However, it is hoped that  the pandemic has brought some positive changes to families, with some fathers being able to spend more time caring for their children than before March 2020. The Fawcett Society have stated that if this became the norm, it could reduce the ‘motherhood pay penalty’ and help aid maternal and pregnancy employment within the workplace.

At Staffordshire University Legal Advice Clinic (SULAC) we offer free legal advice on Equality and Discrimination related matters. If you wish to book an appointment with us call 01782 294 800 or alternatively email SULAC@staffs.ac.uk

 

 

 

 

 

 

 

 

 

Possession suspensions ‘put neighbours at risk’

Lucy Cooper (Student)

The pandemic has been very hard for many people, some of whom have lost their jobs, aren’t receiving the same income as they used to or are simply struggling with their mental health. To help people who may not be able to afford their rent the government put into place an eviction ban meaning that people could not be evicted, during the pandemic. 

Whilst this has clearly helped some people, some law firms have highlighted the problem this has caused for people who are suffering with anti-social behaviour from their neighbours. Housing Associations have reported that due to the ban on possession action they have not been able to take any action against tenants who were being anti-social, which was having a huge impact on the neighbours and other tenants. One property owner explained that he had experienced significant antisocial behaviour from a neighbour and he has now lost two tenants because of this.  

The stay on possession proceedings was lifted in September of last year, meaning that many solicitors saw the opportunity to sort the anti-social behaviour out and began to use what they called the ‘last resort’ to evict the tenants after giving them multiple warnings and chances to change their actions. 

Solicitors have stressed their concerns about the rise in anti-social behaviour during lockdown and what impact it is having on other people, in a situation which is already mentally challenging. It can have a catastrophic effect on the people who have to endure these issues ever day on top of trying to cope with a global pandemic, some people have been spat on by neighbours, during the pandemic, causing them to have a mental breakdown. 

Solicitors have stressed that there needs to be focus on this by the government as anti-social tenants can seriously impact their local community.

What can people do in the meantime? 

If you are someone who is experiencing anti-social behaviour it is initially best to try and speak to the neighbour (provided it is safe to do so). If this does not help, then keep a diary of all the issues that you have encountered so that if court proceedings are necessary you will be able to show a clearly logged diary of what has happened. 

The next step would be report the problem to the council, it may then be possible for the council or the police to meet with the person who is causing the problem and speak to them and help them come to an agreement about how they should change their behaviour. This agreement can then be put into writing. This is known as an acceptable behaviour contract.

Staffordshire University Legal Advice Clinic Offers free legal advice on all housing issues. If you would like an appointment please call 01782 294458 or emails SULAC@staffs.ac.uk

 

Is Staying Home Protecting Everyone?

Shivam Kaushik (Student)

The government has implemented measures to reduce the spread of Covid-19 since March 2020. Since then, there have been lockdowns, closures of non-essential businesses and a very strong message from government to remain at home unless absolutely essential. The advertisement for this is “Stay Home, Stay Safe, Save Lives” and this message is broadcast everywhere on government pages, posters and on several official media platforms. During such  time, having a safe place to call home is critical especially when being at home is more important and one is home more now than ever.

Support services are struggling to provide help and resources to those struggling in their households. The restrictions on leaving home result in further barriers in seeking help and reporting any abuse. Gender based violence (“GBV”)has increased. The UN defines gender based violence as as harmful acts directed at an individual based on their gender. There has been a sharp rise in the prevalence of such abuse in recent times and has been compounded further by lockdown measures. GBV mainly relates to interpersonal violence, domestic abuse, sexual violence and other forms of abuse. In the UK, 1 in 4 women experience domestic abuse and 1 in 5 will experience sexual assault in her lifetime. GBV does not because of lockdown, nor does it stem from the stress, hardship and economic difficulties which arise from the existence of a pandemic, however, the pandemic and lockdown measures have increased the risk factors for GBV such as substance abuse, being unable to support one’s family, crowding and female isolation.

Services supporting victims of gender-based violence are reporting an unprecedented increase in demand for support and assistance. Domestic abuse charity, Refuge, have reported a 700% increase in contact compared to pre-lockdown levels. Similarly, the Respect phone line has reported a rise of 125% in web traffic and a 16.6% increase in number of calls received. Even during stable periods, GBV is under-reported in the UK. The Home Office found that 83% of victims do not report their experiences to the police. The reporting of such experiences will be further decreased during the pandemic.

 These are very concerning statistics that highlight the scale and urgency of these issues and their impact on the most vulnerable members of society. The added difficulty in reporting abuse and seeking assistance during lockdown is leading to many abusers escaping accountability and punishment. More importantly, it has further eroded the ability for victims and survivors to seek immediate protection for themselves and their children. Access to justice is one of the biggest issues faced by victims of GBV and the government measures have only compounded such difficulties. The continuation of such measures will only worsen the impact the pandemic has had on GBV victims and survivors. The government measures as a result of the pandemic have raised the question whether staying home is truly saving lives and at what cost?

If you have experienced any of these issues and require more advice at Staffordshire Legal Advice Clinic (SULAC) we offer free legal advice. Students are supervised by a qualified solicitor, if you wish to book an appointment with us, then please either call us on 01782 294800 or email us at SULAC@staffs.ac.uk. 

 

Gender Equality in the Workplace

Charmaine Watkins (Student)  

The Law 

In 2010, the Equality Act was introduced to legally protect people from being discriminated against in the workplace as well as in the wider society. This Act replaced the previous Laws on Anti-discrimination with one Act. In the UK, there are 9 protected characteristics under the Equality Act 2010. These are: 

  • Race and Ethnicity
  • Disability 
  • Religion or belief
  • Age 
  • Sexual orientation 
  • Sex
  • Gender reassignment
  • Pregnancy and maternity
  • Marriage and civil partnership

The Act provides a framework to protect against direct and indirect discrimination as a result of one of these characteristics. 

Direct discrimination is when someone is treated unfairly because of one of the characteristics, whereas indirect discrimination happens when there are rules or arrangements that apply to a group of employee causing them a disadvantage because of one of the characteristics. 

The impact of the Covid-19 Pandemic  

The Fawcett Society has indicated that Covid-19 has had a ‘devastating’ impact on gender equality in the workplace.

The Society said that women are more likely to lose work or be burdened with childcare during the crisis then men, and during the pandemic out of 8400 people surveyed, a third of working women reported a loss of work or hours. 

The Fawcett society stated that there is a danger that the gender pay gap (the average difference in pay between men and women) may widen as a result. This has been described as a coronavirus crossroads which may impact the progress of workplace equality for years. 

The UK government has said they are “committed to ensure that everyone has an equal opportunity to progress in the workplace”.

However, it is hoped that the pandemic could have brought some positive changes. Some fathers have said that they now spend twice as much time caring for their children then before March 2020. The Fawcett Society have stated that if this became the norm, it could reduce the “motherhood pay penalty” and curb the gender pay gap. 

At Staffordshire University Legal Advice Clinic (SULAC) we offer free legal advice on Equality and Discrimination related matters. If you wish to book an appointment with us call 01782 294 800 or alternatively email SULAC@staffs.ac.uk 

 

International Book Giving Day

The 14th February is not only Valentine’s Day, it is also International Book Giving Day. The day is a volunteer initiative aimed at increasing access to books. We asked staff to suggest some books from their subject areas (both fiction and non-fiction) that they enjoyed reading and that others may find interesting.

 

 

Blue: A memoir: Keeping the Piece and Falling to Pieces by John Sutherland

Suggested by: Dr Lauren Metcalfe, Policing Course Director

 

 

 

 

 

Court Number One: The Old Bailey Trials that Defined Modern Britain by Thomas Grant

Suggested by: Jo Beswick, Law Lecturer

 

 

 

 

 

 

 

Crossing the line: Lessons from a Life on Duty by John Sutherland

Suggested by: Dr Lauren Metcalfe, Policing Course Director

 

 

 

 

I am Pilgrim: Can You Commit the Perfect Crime by Terry Hayes

Suggested by: Dr Fran Stubbs-Hayes, Forensics Lecturer

 

 

 

 

In Spies We Trust: The Story of Western Intelligence by Rhodri Jefreys-Jones

Suggested by: Associate Professor Tony Craig, Lecturer in International Studies

 

 

 

 

 

In Your Defence: Stories of Life and Law by Sarah Langford

Suggested by: Jo Beswick, Law Lecturer

 

 

 

 

Isis: The State of Terror by Jessica Stern and J.M Berger

Suggested by: Aman Jaswal, PhD Researcher

 

 

 

 

 

 

On The Farm: Robert Pickton and the Tragic Story of Vancourver’s Missing Women by Stevie Cameron

Suggested by: Emma Tilley, Policing Lecturer for the Institute of Policing

 

 

 

Police Socialisation, Identity and Culture: Becoming Blue by Sarah Chapman

Suggested by: Dr Lauren Metcalfe, Policing Course Director

 

 

 

 

 

Research Ethics: In the Real World by Helen Kara

Suggested by: Sarah Page, Criminology Lecturer

 

 

 

 

Stories of the Law and How It’s Broken by The Secret Barrister

Fake Law: The Truth About Justice in an Age of Lies by The Secret Barrister

Suggested by: Dr John McGarry, Law Lecturer

 

 

 

Forensics: The Anatomy of Crime by Val McDermid

Suggested by: Professor Graham Williams, Forensics Lecturer

 

 

 

 

 

The Cyber Effect by Mary Aiken

Suggested by: Abbeygail Standen, Policing Lecturer for the Institute of Policing

 

 

 

 

 

When the Dogs Don’t Bark: A Forensic Scientist’s Search for the Truth by Angela Gallop

Suggested by: Professor Graham Williams, Forensics Lecturer

Wills and Covid

Charmaine Watkins (Student) 

For a Will to be valid there are three main requirements, as set out in the Wills Act 1937, these are: 

  • It must be in writing
  • Signed by the testator, who is over 18
  • Witnessed by two witnesses, who are over 18, in the presence of the testator

Creating a will is important for protecting your assets including property, money and sentimental objects. A will is a legal document that ensures your wishes are fulfilled.  

However, Covid changed this. In September 2020 a statutory instrument was introduced to allow for wills to be witnessed virtually. This allows the will to be sent to the various parties and witnessed using a virtual platform such as Zoom or Microsoft Teams. This allows for wills to be executed even during lockdown. 

However, according to the government guidance on video-witnessed wills,virtual witnessing should be the last resort and people should attempt to arrange for physical witnessing of wills where it is safe to do so. 

A spokesman from the ministry of justice has stated; ‘We know the pandemic has made it more difficult to make a will. That’s why we are changing the law to ensure video-witnessed wills are legally recognised. These changes will give peace of mind to many that their last wishes can still be recorded while maintaining all the existing safeguards against fraud or disputes.’ 

Simon Davis the Law society president has welcomed this decision however has said that solicitors will need the correct training to ensure this is done correctly. And that in the long term, wider reforms for the wills Act will be needed to bring it into the 21st century.  

There has however, been more recent criticism with this reform, probate specialists have called it ‘pretty unattractive’ as the remote system can cause delays because the will has to be physically signed by three people, the testator and the two witnesses, who can be all over the country, who will need the will to be posted to each member to be signed which will cause a delay between each signature.  

She also added that there are issues with ensuring the testator has capacity and is not acting under undue influence as well as making sure the client is correctly identified.  

At Staffordshire University Legal Advice Clinic (SULAC) we offer free legal advice on probate matters (although we do not draft wills). If you wish to book an appointment call us on 01782 294 800 or alternately email us at SULAC@staffs.ac.uk 

 

Lasting Power of Attorney & the Ability to Plan Ahead

Harry Gabell (Student)

A Lasting power of attorney (LPA)  is something which you can (and perhaps ought to) have set up before your health deteriorates An LPA is a legal document whereby a trusted friend or family member is given the powers to make some decisions on your behalf, if you no longer have the mental capacity to make these decisions by yourself. Generally speaking, LPA’s are usually considered by the elderly, but the option is available to anybody over the age of 18.

What does an LPA do exactly?

The LPA formalises a relationship between a ‘donor’, who creates the power, and the ‘attorney’, who may use the power if the donor loses mental capacity. To have capacity, a person must be able to understand the information they need to make a decision, evaluate it, and then communicate their intentions. So, while you still have mental capacity, you can appoint somebody to make decisions on your behalf in two areas, should you ever lose it. These are:

  • Health and welfare
  • Property and finance

Your attorney can cover just one of these areas, or both, but they must be arranged using different forms. Also, by creating these arrangements, it does not mean that the donor is giving up any control. The powers should only be used at the point of the loss of mental capacity.

Health and welfare power of attorneys concern medical treatment and other interactions with healthcare staff. Health and welfare powers could also cover more serious medical decisions, but these kinds of decisions could already be made by the donor in advance using a ‘living will’.

Property and finance powers cover money, tax, bills, accounts, property, pensions and benefits, among other things. They could also deal with situations where there is a need to pay for equipment or supplies, for example a wheelchair, or new clothes. Wherever possible, the donor’s property and finance should be kept separate from the attorney’s, although some couples using shared bank accounts won’t be able to do this. Unlike health and welfare powers, property and finance powers may be used before the loss of mental capacity.

What does an LPA cost?

In England and Wales, setting up an LPA carries a cost of £82 (for both health and welfare and property and finance, that would be £164). This is the fee for the compulsory registration of the power of attorney. If you instruct solicitors to help you get the power there will be further fees..

Arranging an LPA comes strongly recommended from both a financial and a personal protection standpoint. Staffordshire University Legal Advice Clinic (SULAC) offers free legal advice and can advise on matters of lasting powers of attorney arrangements (although we do not draft the applications). SULAC is offering appointments online, through Microsoft Teams due to COVID – 19. For additional information, or to book an appointment please call on 01782 294800 or email at SULAC@staffs.ac.uk

 

 

 

Changes to Divorce Law

Emma Peake (Student)

The law on divorce us due to undergo a radical change. The changes are likely to come in effect in the Autumn of 2021 or early 2022.

Under the current law you must prove that your marriage has broken down irretrievably. You show this you must prove one of the five grounds: 

  • Adultery
  • Unreasonable behaviour. This can include:
    • Physical violence,
    • Verbal abuse- such as insults and/or threats,
    • Drunkenness and/or drug-taking,  
    • Refusing to pay towards shared living expenses. 
  • Desertion- your husband or wife has left you for at least two years since separation 
  • You have been separated for at least two years and the opposite spouse agrees to the divorce, or
  • You have been separated for five years; the opposite spouse does not need to agree to the divorce.

The  majority of applications rely upon adultery or unreasonable behaviour. The very process of listing allegations can often aggravate the other party and can sometimes mean that negotiations in respect of children and the finances can become very acrimonious.

So what is changing? 

The changes involve the introduction of the concept of “no-fault divorce”. The new procedure will no longer require blame to be put on the other party. The main benefit of this change is to reduce blame and acrimony and allow parties to deal with finances and children in a more constructive manner. 

Lord Chancellor Robert Buckland said, “The bill reform will not come into force upon Royal Ascent because time needs to be followed for careful implementation.” This means that once the bill has been accepted as new law, the law will not be enforced immediately on that date until it is fully satisfied that is has been interpreted correctly.  

What triggered the need for change?  

Practitioners have been suggesting that this would be beneficial for some time. The issue was highlighted in the case of Owens V Owens Their marriage had completely broken down, but none of the grounds for divorce could be fully satisfied, they just simply “fell out of love”.  Mr Owens was able to successfully contest the divorce. The case then went to the Court of Appeal, who agreed with the decision but highlighted the difficulties arising from this case.

What are the changes? 

The new legislation will: 

  • Replace the five facts with a new requirement to provide a statement of irretrievable breakdown, 
  • Remove the possibility of contesting the divorce,
  • Introduce an option for a joint application, and
  • Make sure that language is in plain English, for example changing “decree absolute” to final order and “decree nisi” to conditional order. The “petitioner” of the divorce will become the applicant. 

This has been the biggest shake-up for divorce law in fifty years.  The no-blame divorce is more administrative than a court procedure. Baroness Hales said that being able to say that the marriage has simply failed, without holding the other party accountable, could ease some stress. The process will be easier.  

Staffordshire University Legal Advice Clinic (SULAC) provides free legal advice on all family related matters. We are working remotely during the pandemic and interviews are conducted via Microsoft Teams. If you would like to make an appointment, please contact us on01782 294800 or email us onSULAC@staffs.ac.uk 

 

  

 

16 and 46: Preserving, Protecting and Defending

Aidan Flynn, Senior Lecturer in the Law Department, looks at some similarities and differences between the office of US President and the office of UK Prime Minister

New President

Joe Biden, of the Democratic Party, is now the 46th President.  At his inauguration ceremony he took the oath that is set out in the Constitution of the USA 1789, “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”  In his inauguration speech, President Biden quoted the 16th President, Abraham Lincoln (1861 to 1865), of the Republican Party, “in another January on New Year’s Day in 1863 Abraham Lincoln signed the Emancipation Proclamation.  When he put pen to paper the president said, and I quote, ‘if my name ever goes down in history, it’ll be for this act, and my whole soul is in it.’”  Mr Lincoln led his country in very difficult times with the years of the American Civil War coinciding with his period in office.  Referring to the present day, President Biden continued “here we stand just days after a riotous mob thought they could use violence to silence the will of the people, to stop the work of our democracy, to drive us from this sacred ground.  It did not happen, it will never happen, not today, not tomorrow, not ever.  Not ever.”  Like Lincoln, President Biden has a very difficult path in front of him, he faces a “pile of crises.”  Like ‘Honest Abe’ he is confronted by a series of stark challenges.  His long years of experience as an elected representative will stand him in good stead as he fulfils his oath to preserve, protect and defend the Constitution.

Head of what?

In the USA the President is both the head of state and head of government of the United States of America.  In the United Kingdom these roles are separate, the monarch being head of state and the Prime Minister being head of government.  Graubard states that “simplicity, the theme of the nineteenth-century American republic, made the president the first citizen amongst equals, but these practices gave way in the twentieth century to a new kind of presidential office that vaunted itself on its simplicity, but showed unmistakable signs of having assumed the trappings traditionally bestowed on European heads of state.”  The British monarchy is a constitutional monarchy, this means that while the Queen is head of state it is the UK Parliament that makes legislation.  The website of the monarchy tells readers that the Queen “undertakes constitutional and representational duties which have developed over one thousand years of history.”  The monarch has no political or executive role, it is the Prime Minister who is “the most important politician in the UK.”

Election

Presidential elections in the USA take place every four years and are held in November.  Every state in the USA has a different number of what are known as electoral college members.  The number of members per state is apportioned according to its population and representation in Congress.  The candidate who wins the most votes in a state controls all that state’s electoral college members.  The electoral college members cast the votes for President and the votes are formally counted at a joint session of Congress in January.  The figure needed to win is 270 and in 2020 Joe Biden received 306 to Donald Trump’s 232.  Sometimes the winning candidate will not have also won the biggest number of votes in the national popular vote.  For example, in November 2000, in the national popular vote Al Gore received over 540,000 more votes than George W. Bush.  What is crucial is to win in the electoral college process and George W. Bush became President in January 2001 having done that, receiving 271 votes to Mr Gore’s 266. 

In the UK the Prime Minister is appointed by the monarch either after a general election has taken place or when a sitting Prime Minister has departed the office at some point during the term of Parliament.  By convention, the Prime Minister must be an MP, that is a member of the House of Commons.  This contrasts with the position in the USA where the President is not a sitting member of either house of the legislature.

When the result of a general election gives one political party a clear overall majority in the House of Commons, the position is straightforward.  The leader of that party will, as in December 2019, be invited by the monarch to become Prime Minister and form the government.  When there is a hung Parliament, in which no one party has an overall majority, the position may not be as straightforward.  Le Sueur comments that “there is academic disagreement about the extent to which the monarch has discretion” in relation to a decision about who to appoint should the party leaders in the Commons be struggling to strike any kind of deal on government formation.

Timeline when entering office

In the USA there is always a gap of time between November’s election and the moment when a new President assumes office.  The 20th Amendment, to the Constitution of the USA, states that “the terms of the President and Vice President shall end at noon on the 20th day of January.”  By contrast, in the UK the timeline between a general election and the appointment of the new Prime Minister is usually a matter of hours rather than weeks.  This is illustrated by the transfer of power that occurred in May 1997 when the party led by the incumbent Prime Minister, John Major, was defeated in a general election.  The general election was held on the 1st of May and John Major left 10 Downing Street on the 2nd of May.  Having first travelled to Buckingham Palace and been appointed by the Queen as new Prime Minister, Tony Blair arrived in 10 Downing Street in the early afternoon, Mr Major having “walked out only moments before I had come in.”   If a general election produces a hung Parliament, the timeline will be different.  For example, in 2010 the general election took place on the 6th of May, but it was on the 11th of May that the incumbent, Gordon Brown, resigned and was succeeded by David Cameron.  Mr Brown recalls that once it was clear that the election result was a hung Parliament, “the senior civil servants at the cabinet office, primed for this situation and armed with their Cabinet Manual, now moved into action to host what they knew would follow – inter-party negotiations.”  He resigned five days after the election when he formed the view that those negotiations were not going to yield an outcome that would see his party remain in government.

Cabinet

As head of government in the UK, the Prime Minister leads the executive, one of the three branches of government, the other branches being the legislature and the judiciary.  Government ministers are formally appointed by the monarch, but it is the Prime Minister who makes the decisions on who becomes a minister.  Similarly, it is the Prime Minister who has the power to make a decision as to when a minister must leave the government.  It is a convention that a minister must be a member of one of the houses of Parliament, most ministers are members of the House of Commons.  Senior ministers sit in the Cabinet, a body that holds regular meetings chaired by the Prime Minister.  Most of these senior ministers head up a government department, examples being the Secretary of State for Education, the Secretary of State for Transport.  Barnett outlines how it is the Cabinet that represents “the nucleus of government” adding that it is “the Cabinet as a whole which, at least in theoretical terms, formulates, initiates and implements the policy of the government.”  In the USA the Cabinet is also an important aspect of the executive branch of government.  The Cabinet is made up of the fifteen heads of the executive departments.  They are appointed by the President and confirmed by the Senate.

The requirement for there to be confirmation hearings, in the upper house of Congress, has no equivalent in the UK.  Persons picked by the Prime Minister to serve in Cabinet do not face confirmation hearings in Parliament, the legislature of the UK.  In the USA members of the Cabinet will not also be serving in either house of Congress, unlike the convention in the UK that a Cabinet minister must be a sitting member of the legislature.  This is a notable difference between the systems of the two countries, it means that in the UK members of the Cabinet have a role in two of the three branches of government.  They are simultaneously members of the executive and legislative branches whereas in the USA Cabinet ministers only serve in the executive branch.  Another difference in the two systems relates to the Attorney General.  In the USA the Attorney General is a member of the Cabinet and is head of the Justice Department.  In the UK the Attorney General is a member of the government and attends Cabinet meetings but she is not a member of the Cabinet.

Length of term

In the USA the President is, under the 22nd Amendment to the Constitution, limited to two four-year terms.  The 22nd Amendment was ratified in 1951.  Franklin Delano Roosevelt is the only President to have served more than two terms, being elected four times and serving from 1932 until his death in 1945.  It is possible for a President to remain in office for ten years.  This applies in specific circumstances and can be examined by looking at the presidency of Lyndon Johnson.  He was Vice President in November 1963 when President John Kennedy, who had been inaugurated in January 1961, was assassinated.  Mr Johnson was sworn in as President on the day that the assassination occurred and then won the November 1964 presidential election.  He could have stood as a candidate again in 1968 but opted not to do so.  However, had the assassination of Mr Kennedy taken place at a point during the first two years of his term, Mr Johnson would not have been eligible to enter the 1968 contest.     

In the UK there is no limit on the length of time that someone can serve as Prime Minister.  Since 1940, there have been three Prime Ministers who held office for longer than eight years, Winston Churchill (1940 to 1945 and 1951 to 1955), Margaret Thatcher (1979 to 1990) and Tony Blair (1997 to 2007).

Departure

A president’s time in office will end when he has completed two terms or if he is defeated in the election that occurs at the end of the first term.  Of the last seven presidents, four left office after eight years, these are Reagan (1989), Clinton (2001), GW Bush (43)(2009), and Obama (2017).  The other three, who were unsuccessful candidates when they campaigned for a second term, are Carter (1980), GHW Bush (41)(1992), and Trump (2020).  Eight presidents have died in office, four of whom were assassinated, Abraham Lincoln (1865), James Garfield (1881), William McKinley (1901) and John Kennedy (1963).

The 25th Amendment to the Constitution, adopted in 1967, sets out some circumstances in which it is possible for the Vice President to take over the powers and duties of the President, and operate in the capacity of Acting President.  This Amendment is relevant where the President is “unable to discharge the powers and duties of his office.”  In January 2021 Vice President Mike Pence rejected calls for him to invoke provisions of the 25th Amendment in relation to President Donald Trump.

Impeachment of a President is covered by Article 2, Section 4 of the Constitution.  It provides for removal from office on “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  In 1974 Richard Nixon resigned before he could be impeached, he is the only president to ever resign the office.  Andrew Johnson (1868) and Bill Clinton (1998) were both impeached by the House of Representatives but acquitted after a trial in the Senate.  In December 2019 Donald Trump became the third president to be impeached when the House of Representatives voted to adopt articles of impeachment. Like Johnson and Clinton, he was acquitted after a trial in the Senate.  The Senate voted to acquit him 52-48 on charges of abuse of power and 53-47 on obstruction of Congress.  On the 13th of January 2021 President Trump became the first president to be impeached twice  when the House of Representatives voted to adopt articles of impeachment.

Seven prime ministers have died in office, one of whom was assassinated, Spencer Perceval (1812).  The most recent instance of death in office was Lord Palmerston (1865).  In certain circumstances a prime minister could be dismissed by the monarch.  This happened in 1834 when King William IV dismissed William Lamb.   On departure through dismissal, it is also relevant to recall what occurred in Australia, a member of the Commonwealth, in 1975.  The Prime Minister, Gough Whitlam, was dismissed by the Governor-General, the Queen’s representative in Australia.

The departure of most prime ministers is brought about by resignation.  A prime minister will resign upon being defeated at a general election, the most recent example being Gordon Brown in 2010.  An exit by way of resignation can also occur where a prime minister faces a leadership challenge in her party.  In 1990 Margaret Thatcher resigned amidst substantial internal divisions, about her leadership, within the Conservative Party.  Describing how what he calls “the most striking ‘boss’ prime ministership of the post-war period” came to an end, Hennessy relates that nearly two-thirds of her Cabinet told her she could not go on.  He adds that “this was the crucial moment when she realized that her pyrotechnic command premiership was finished.”  Another reason for resignation can be the rejection, in a national referendum, of a major policy position advocated by the Prime Minister.  The departure of David Cameron, in 2016, illustrates this and he records that “Britain was leaving the EU and I was leaving the job I loved.” 

There is a convention that if a government loses a vote of confidence in the House of Commons, the Prime Minister should resign, and a general election take place.  This occurred in 1979 when the government of Prime Minister James Callaghan lost a vote of confidence, by one vote 311 to 310.  The Fixed-term Parliaments Act 2011 modified the position where a government loses a vote of confidence in the Commons.  This Act provides that an election is only triggered if, within fourteen days of the vote, neither the previous administration nor an alternative government has secured the confidence of the House of Commons.

Democracy

The most significant similarity between the US President and UK Prime Minister is that both are world leaders elected in countries with a democratic system of government, the USA a republic and the UK a constitutional monarchy.  Abraham Lincoln summed up the nature of democracy in his famous address at Gettysburg, “that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.”  The first President, George Washington, entered into office in 1789 and the Constitution that came into effect that year is still the fundamental document underpinning the governance system.

The year 2021 is the 300th anniversary of prime ministers.  The period in office of Robert Walpole, who is listed as the first Prime Minister, was 1721 to 1742.  Hennessy states that “each new arrival in No. 10 experiences it and manages it afresh, which is why transitions of governing and prime ministerial power repay especially close study.”

Close study of the last five years shows very vividly that the ability to command a parliamentary majority is a key element in determining how a premiership will go.  A Prime Minister with a good-sized majority in the House of Commons has greater authority than one who lacks this.

Barnett comments that “whatever the personal power of the Prime Minister, he or she is ultimately dependent upon the support of Cabinet, party and Parliament; and, in turn, that support is dependent upon the support of the electorate expressed not just through the vote at a general election, but continually expressed in that amorphous concept ‘the mood of the people.’”  Power rests with ‘the people’, every aspiring Prime Minister knows that, and every Prime Minister knows that he must never forget that.

 

 

 

 

What is the future for the Human Rights Act?

Charmaine Watkins (Student)

In October 2020, the Government released a statement proposing that the Human Rights Act would be reviewed and reformed, if necessary. Sir Peter Gross, a retired Court of Appeal judge along with eight other senior lawyers and academics have been announced as being the panel who will be reviewing the current Human Rights Act.  

What is the Human Rights Act? 

The Human Rights Act sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It includes the rights set out in the European Convention of Human Rights and embodies that into domestic UK law. This came into force in 2000. The Act has three main effects: to seek justice in UK courts, for public bodies to respect the rights and for new laws to be compatible with the convention of rights.  

The Lord Chancellor, Robert Bucknall has recently said that is time ‘to take a fresh look at the Human Rights Act, to see how its provisions are operating and consider whether the framework could be improved’. This review will be happening in the summer of 2021. He has said that the government does not have any preconceived ideas and that there are some areas which need to be focused on during the review.  

What will be considered in the review? 

  • The relationship between domestic courts and the European Court of Human Rights
  • The impact that the Human Rights Act has on the relationship between the judiciary, executive and parliament and whether domestic courts are being unduly drawn into areas of policy 
  • The way that the Act impacts outside the territory of the UK 

This announcement also stated that the UK will remain committed to the European Convention on Human Rights as the review is limited to the framework of the Act rather than the Rights themselves.  

This announcement of the review however has come under criticism from other political parties, with members of the Labour party saying “unlike the conservatives, Labour is proud of this country’s leading role in  developing Human Rights following the second world war. There is no need for a review into the rights and freedoms that underpin out democracy and all of us enjoy”.

David Greene, the President of the Law Society has defended this by saying: “the rights enshrined in the Act are core to the UK’s identify as a democratic, fair and just nation. These core values will be front and centre for the panel whose jobs will be to ensure that they are not rolled back or compromised.” 

Despite the criticisms the review will still be taking place in summer 2021, however, until then, the Act will still be functioning in the way it has for the past 20 years.  

At Staffordshire University Legal Advice Clinic (SULAC) we offer free legal advice on human right related matters. If you wish to book an appointment with us call 01782 294 800 or alternatively email SULAC@staffs.ac.uk