Katherine Jones

— Katherine Jones is a law graduate who trained with McKinnells Solicitors in Lincoln. She is now a solicitor in the busy personal injury department.

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Two teenagers, Katy Moore and Callum Hurley, have taken the government to court to challenge the rise in university tuition fees up to £9,000 per year from September.

They lost the case, but their action raises some interesting issues about who actually makes the law in England and Wales (not Scotland or Northern Ireland, which have their own legal systems).

Up until about 50 years ago the answer was fairly straightforward. Parliament made the law and judges interpreted it. Then along came Lord Denning who decided that judges could make law by a very wide interpretation of legislation.

He brought a fierce moral compass to the court and usually tried to find for the individual against governments or big business. The problem with making it up as you go along, though, is that the law does need some certainty and following his retirement there was a retreat by judges back to simply interpreting the law.

In the 1990’s European law became a part of domestic law and today more law in England and Wales comes from Europe than it does from Westminster. This has coincided with judges being more willing to challenge legislation rather than just interpret it. This is what Katy and Callum were hoping for with their court action.

They applied for what is called a judicial review of the regulations that introduced the increased tuition fees. If the court decided the regulations had not been properly made, the judge could in effect quash them.

They had two arguments: The first was that under the Human Rights Act there was a right not to be discriminated against in the provision of education and that the changes would discriminate against the less well off.

This argument failed because university education is optional rather than compulsory and because the court decided that the availability of loans created a level playing field.

Their second argument was that the minister responsible (Vince Cable) had not carried out an assessment to see if the changes would have an adverse impact on protected disabled groups. This obligation is a recent development imported directly from European discrimination legislation.

The court decided he had not followed the proper process but that, if he had, the outcome would not have been any different.

So, Katy and Callum failed in their application, although they do have something rather special to put on their CVs. As for Mr. Cable, well he did get a shot across the bows, being told to make sure he does better next time.

If he does not follow proper process in the future then there is a real risk that a law passed by Parliament will be held by judges not be valid because of laws passed in Europe.

Whether that is right or wrong is, of course, a matter for debate.

— Katherine Jones is a law graduate who trained with McKinnells Solicitors in Lincoln. She is now a solicitor in the busy personal injury department.

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To be able to claim compensation, any accident victim has to show that the accident was someone else’s fault, that they have been injured (proven by an independent specialist doctor or medical consultant) and that they have suffered loss. If they can’t show this, they won’t be paid a penny, despite what you might read in the newspapers to the contrary.

The prime minister has said he wants to ”wage war” (something recent prime ministers seem to do rather a lot) against an all-pervasive compensation culture. This simply ignores the government’s own research evidence. This found that, in fact, there is no such culture in the UK.

Narrowing the attack even more, the government is now demonizing victims of whiplash injuries, suggesting that in many cases where a claim is brought, there is no such injury.

Imagine you are driving home one night. You stop at traffic lights. Someone driving a car behind you is driving too quickly and not paying attention. Their car rams into yours. You are taken unaware. Your head snaps backwards, hits the seat rest and jerks forward.

Sometime later the symptoms emerge, you have headaches, nausea, stiffness and lack of mobility. Your neck is affected, but your back could be too. You can hardly move. The symptoms could last a few days or a few months. All of which are medically recognized symptoms.

In the legal text book which sets out details of reported accident cases there are over 200 pages dealing with successful whiplash claims, so it is hard to see where the government is coming from in doubting its existence.

So, still imagining you have had this injury, how are you going to feel if when you want to claim back your lost earnings because you could not go to work, the cost of prescriptions for painkillers, the excess on your car insurance policy for the repairs, let alone compensation for the pain and suffering, you are made to feel like a benefits cheat or a shoplifter, as if what you were doing was somehow wrong?

All anyone wants, in these circumstances, and all the law allows them to receive, is to be put back in the position they would have been in as if the accident had not happened. So there is no profit element.

Ask accident victims if they would have preferred not to have had the accident in the first place or to have had it and been paid some compensation, most would chose not to have had the pain, distress, inconvenience and cost. Hardly a compensation culture, Mr. Cameron.