Legal News - August 2018

Legal

NEWS

AUGUST 2018 THE MAGAZINE OF THE CONFEDERATION OF THE SOUTH WALES LAW SOCIETIES

an award-winning evening

The Monmouthshire Incorporated Law Society Summer Ball 2018

LEGAL NEWS

CONTENTS

PRESIDENT REPORTS

4 Jonathan Hine

REGULARS

8 Chancery Lane News

Holiday Ready...

FEATURES

10 Cardiff & District Law Society Visits the Estonian Parliament 12 #LegalCardiff Campaign Launched at the CDLS Managing Partners and Directors Lunch 2018

6 Clive Thomas In Full Swing!

7 Mel Bevan-Evans Representing the Region

14 A Sense of Self Editorial Board

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Emma Waddingham - Editor Michael Walters - Secretary Jonathan Hine David Dixon

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Printed By Stephens & George The articles published in Legal News represent the views of the contributor and are not necessarily the official views of the Confederation of South Wales Law Societies, Cardiff & District Law Society, or of the Editorial Board. The magazine or members of the Editorial Board are in no way liable for such opinions. Whilst every care has been taken to ensure that the contents of this issue are accurate, we cannot be held responsible for any inaccuracies or late changes.

No article, advertisement or graphic, in whole or in print, may be reproduced without written permission of the publishers.

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PRESIDENT REPORTS

holiday ready...

On the Presidential front, I was honoured to be invited to the Monmouthshire Law Society ball at the Celtic Manor on 15 June. In attendance were a wide range of members of the Society and guests.

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his event is a particular favourite of mine, as the Monmouthshire is my local law society. I thought the evening was a great success and was thoroughly enjoyed by those who attended. For a change, my wife was also invited to attend and she greatly appreciated and enjoyed the event. The invitation of partners or spouses of guests to this event is a particularly civil touch that is, as far as I am aware, unique to the Monmouthshire Law Society. At least locally anyway. My congratulations to the Society and its committee for all the hard work that evidentially went into this event to make it the success it was.

Prior to this, I was invited by the Law Society to their summer reception at the National Museum of Wales in Cardiff on the afternoon of 13 June 2018. The museum in Cardiff is a particularly interesting place in which to hold such an event and we were privileged by be addressed by speakers with particular connections with Wales. This event marked the swansong for David Dixon as Council member for Cardiff. David has enjoyed a long and distinguished career as Council member of the Law Society and his contribution to the profession both locally and nationally has been outstanding in his time in office. A former President (or Chairman in those days) of the Confederation, his contributions to Confederation business and to local law societies in wales has been outstanding over many years.

We all owe David a huge debt of gratitude that, sadly, none of us can really repay. The only realistic way to appreciate all he has done locally is to say a heart-felt ‘thank you’ and pass on all our best wishes for a well-deserved rest in future. I echo those sentiments with force.

In my last piece for this publication I mused that the spring had sprung. In the intervening few months spring has turned to a hot summer, no rain has fallen for many weeks and the old memories of the summer of 1976 are being wheeled out more and more. I am of an age when I can remember the summer of 1976, though I was only 10 at the time. My chief memories are endless days of sun, barbeques, buckets of water parked by the toilet to flush the same and my father’s ingenious syphon system that he erected from the bath on the first floor of our house to an outside water tank. My brother and I were under strict instructions to syphon the bath water from the bath when we had finished, down to the tank so Dad could use the water on the garden. It was an ingenious solution to the watering of the garden. Only problem was the pipe had to remain filled with water with a bung in the bath end, to ensure the syphon was preserved. In the hands of two young boys, the syphon had to be restored on a number of occasions due to inadvertent draining of the same! Heady days indeed!

Thanks to the foresight of Welsh Water since that long hot summer, at least in South Wales we have not suffered the privations of water rationing since and are unlikely to do so even now. Nevertheless, working in the heat in the ridiculous attire that the legal profession still insists on, has its issues. I have spent a lot of time in court in the last seven days; in fact, four of the last seven days. Modern court rooms are cool, airconditioned places. Fine to work in. It’s just the transit to and from Court that causes issues. I was in the Employment Tribunal in Bristol last week and, emerging at the end of day one, walked into a wall of heat outside the court building. I was on foot, heading to Temple Meads and the train 4

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home. It is only a short walk (probably 10 minutes), but by the time I reached the station (equally cool though no air-conditioning – Brunel was far ahead of his time in design terms!) I was dripping! When writing this piece I have had the luxury of retreating to an air-conditioned office for a change. Comfort indeed!

The British are notorious for their conversations about the weather. I have no problem with sunny, hot weather. I just wish I did not have to work in it!

I am due to go on leave in about two hours time. What is the bet that the weather breaks and the conditions change just in time for my holiday? The law of you know who beckons!

In closing, I just wanted to share one story from the recent news. No headline grabber, no dramatic rescue or disaster. It concerned a man living on the Isle of Wight who, earlier in the week, took to Facebook to report the loss of a half-heart pendant on his way home. Nothing dramatic in that you might say, but the background was that the other half to that which he had lost he had given to his three year old daughter, who had died of cancer some time before. Her half had been buried with her. The loss of his half therefore was understandably heart-breaking (both metaphorically and literally).

I remember being greatly moved reading about the story recently. I was both astonished and in equal measures relieved and grateful to read today that he had found his missing half today, oddly in the road outside his home. This was despite looking for it every day since he lost it and not coming across it until now. The consolation that this must bring him is immeasurable and beyond our understanding. However, the point of all this was not only the tragedy turned happy ending, it was the 13,000 people who had bothered to stop what they were doing and post messages of support, consolation and understanding on his Facebook page. That is, ultimately, what both impressed me the most and, in equal measure, gave me a very positive outlook for the future.

There are many truly outstanding people in this world, far more than not.

We should remember that when life is difficult. I salute them all.

Have a great summer and, wherever you go on holiday whether abroad or at home, enjoy yourselves and the break. You all deserve it! I’m off to pack my sandals and extra black socks!!

Happy holidays! l Jonathan Hine President OF THE Confederation of South Wales Law Societies JonathanH@jacklyndawson.co.uk

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PRESIDENT REPORTS

In full swing!

My Presidential year is now in full swing! My first event at the helm was our Managing Partners and Directors Lunch. Thank you to all those who attended – it was a great turn out of the great and the good from the Cardiff legal world

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he event was very kindly sponsored by Lloyd’s Bank & Legal Network Wales. Paul McCluskey (UK Head of Professional Practices), Lloyds Bank and Nicola Watkins from Legal Network Wales gave very informative presentations. We also heard from two guests, Mumtaz Hussain, from the Legal 500, and Malcolm Davies of Welsh Government.

We also heard from Charlotte Leyshon of Lux with special advance notice of the planned Welsh Legal Awards next year. It was also a great opportunity for me to launch the campaign theme for my year, #LegalCardiff.

Cardiff has so much to shout about and we will be doing this through our #LegalCardiff campaigns to showcase what the legal scene and professionals have to offer. It’s a dynamic, and diverse capital city; Wales’s principal commercial centre and one of the UK’s fastest growing cities. Cardiff has been also recognised as one of the best places to live in the UK. Cardiff is also a city of sport - hosting major events and was the scene of great sporting success of our own last year - with Cardiff City, Cardiff Blues and the Cardiff Devils… we just need Glamorgan to step up now!

In my view, one of the other major strengths of Cardiff is its legal community. It is something to be very proud of and an important contributing factor to the growth of the City. The excellence of the Cardiff legal sector rivals any other region of the country, and comes competitively priced and wrapped up in the positive and approachable attitude that lawyers in Cardiff display. So we want to attract clients to do their legal business in Cardiff.

I am planning a series of events to promote and support the #LegalCardiff concept so please keep checking our events pages on our website for more information and to book (cardifflaw.org).

The next event is on 4 October at Cardiff Airport. I have arranged a breakfast event to find out what is changing at the airport. Qatar airlines, Flybe and KLM will be there and also to discuss opportunities overseas that this creates for law firms in Cardiff. I also hope to have some Cardiff law firms show-casing their successes overseas.

Cardiff is also home to world-class education facilities and universities, with Cardiff University a shining light as a Russell group University – an institution that has a fine reputation for its law degree and the Legal Practice Course. However, less well known is the innovation with regards to AI and legal tech courses going in in University of South Wales and Cardiff and the Vale College to - the LTC4 with legal technology core competencies and certification. The idea being that all legal professionals should be able to use technology efficiently. We are organising a course on legal tech, AI and digitisation before the end of the year.

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We will also be holding a number of Cardiff Legal Insights, beginning in September with an event in partnership with one of our annual sponsors, Penguin Wealth.

We have also had two social events recently. A ‘more than sold-out’ cheese and wine at Madam Fromage in June - a great success. We also had a trip to Chepstow Races for a Ladies night in July. It was kindly sponsored by Legal Network Wales and Legalinx, who ensured that all those who attended had a lovely evening at the races and the feedback has been excellent from attendees. One firm even won a few referrals which we like to hear!

I had the pleasure of attending the Monmouthshire Incorporated Law Society Ball in June. It was an excellent night, and I would like to congratulate its President Mel Bevan-Evans and all those involved in organising it.

I have also had the honour of visiting the Estonian Parliament recently with a delegation from the Cardiff Law Society, including CDLS Secretary, Michael Walters and CDLS Council member Phillip Griffiths, Senior Clerk at 30 Park Place. We had an excellent meeting with Jaak Madison,MP and Deputy Chairman of the European Union Affairs Commission (more in another article in this issue). We also visited to the plenary hall – a highlight for me was being allowed to sit in the seat of the President of the Republic of Estonia! The story of Estonia and its successful fight for independence, which the nation achieved in 1991, is fascinating and truly uplifting. Grateful thanks go to Phillip Griffiths and his Estonian wife Annika for arranging the trip and being wonderful ‘tour guides’!

As a final note, a reminder to save the date for an important event next year – the Cardiff & District Law Society Annual Dinner. Please add 10 May 2019 in your diaries for the dinner I will host at the end of my Presidential year – set to be even more spectacular than last year (if that’s possible!) as we return to the historic Exchange Hotel in Cardiff Bay. Tickets are on sale now via the events page on our website. l CLIVE THOMAS President OF THE Cardiff & District Law Society

Representing the region Mel Bevan-Evans, President of Monmouthshire Incorporated Law Society (MILS) has had a busy summer representing members & lining up a number of exciting events for lawyers in the region.

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was invited to attend an exclusive Women in Law Roundtable Event in July hosted by Christina Blacklaws, President of The Law Society. This took place in Cardiff and was attended by senior women in the law in the area, discussing the prejudices women face within their own workplaces.

There were very frank discussions during the event and each attendee was asked to host their own roundtable event locally to consider prejudices within firms currently – this is something I aim to organise very soon.

MILS Summer Ball Our Summer Ball and Awards Ceremony took place on 15 June at The Celtic Manor Resort and was a great success. The night included our first Awards Ceremony and we plan to expand this next year due to its success. Jamie Baulch was our guest speaker while Magician Joel Bentley and ‘The Brotherhood’ Band made our entertainment for the evening fantastic. Our raffle and auction on the night raised £3,500 for our nominated charity, Velindre Cancer Care Centre. The Ball always takes a great deal of organisation and all was worthwhile due to its success - especially for the charity.

pairing with food. The regular networking events are free of charge but there will be a cost involved in relation to the wine, gin and champagne tasting events. Details to follow on our website and facebook page – please follow us!

ASWLS Finally, when I attended the Association of South West Law Societies meeting on 19 July, I was nominated as Vice President of ASWLS so it’s going to be a busy year! l Mel Bevan-Evans President Monmouthshire Incorporated Law Society

Dinners I attended the DASLS Dinner and Excellence Awards Ceremony on 1 May that had been re-scheduled due to the snow! Mike Tyndall as Guest Speaker was very entertaining! There were very many awards during the Ceremony and the evening was very well attended – well done Sue Aggett, it was a lovely evening.

Unfortunately, I missed the 70th Anniversary DASLS event as I was away on holiday but Clive Thomas, CDLS President attended and spoke during the evening and I understand that it was thoroughly enjoyed by all.

I attended the Cardiff & District Law Society at Event Chepstow Races recently which was a very enjoyable way to spend the afternoon/evening – despite not predicting any winners!! This is something we at MILS have been planning to do for some time but not yet organised so it is now on the agenda for the next meeting – I hope many of you will attend!

Forum Our Managing Partners lunch this year will take place on 22 August at The Celtic Manor. Lloyds Bank has very kindly offered to sponsor this particular event and one of our other sponsors Watts Gregory Accountants is also arranging a topical presentation.

Networking events A number of us attended the networking event at The Pod, Newport on 19 July and very much enjoyed the Street Food with cocktails. We have arranged for a regular Networking event to take place at The Pod in Newport every second Thursday of the month. We’re also arranging specific events such as wine tasting, gin masterclasses and champagne

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REGULARS

chancery lane David Dixon reflects on 12 years of life as at Chancery Lane in his last article for Legal News.*

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his is my final Chancery Lane chronicle. On 5 July, at the annual general meeting, I stood down from the Law Society’s council after 12 years. Sarah Watkins of NewLaw is the new council member for South Wales. Members of Cardiff & District law society council have remarked that future meetings will be shorter without my oral reports. Perhaps Legal News will become smaller without my articles!

Life in 2006 When I joined council in July 2006 there were no iPhones or iPads technology trendies had a Blackberry. After nine years of a financially prudent Labour government, many thought the days of boom and bust were over. How wrong they were! Although the UK had not joined the Euro, the country was committed to the EU. It was a different world.

The legal landscape was different, too. The Clementi report recommended legal professional bodies should keep their regulatory functions at arms-length (how could what Clementi called a regulatory arm be at arms-length?) so in 2006/07, council monitored the progress of the Legal Services Bill through Parliament. There was no Solicitors Regulation Authority (SRA) - it was the Regulation Board of the Law Society. It renamed itself on 1 January 2007. There was no Legal Services Board (LSB) or Legal Services Ombudsman. Complaints against solicitors were investigated by an agency of the Law Society that kept changing its name - in 2006 it was the Consumer Complaints Service.

There were no ABSs, COLPs or COFAs. There was no entity-based regulation or outcomes-focused regulation. The profession was free of professional regulators who, with the here today and gone tomorrow impermanence of cabinet ministers, now spend a few years, before they move on, applying to our profession their crazy theories about regulation in spite of the hostile responses they receive to their consultations. In 2006, solicitors were still a profession. Although we are still a profession nominally, in substance we have been downgraded to a trade.

Some important issues in 2006, such as home information packs, which the Labour government withdrew after promoting them as a panacea to hasten and cheapen conveyancing transactions, seem dated. Others, such as the legal aid dilemma - we can’t afford it, but can’t afford not to have it - are still with us. A succession of ministers from different political parties have waged a sustained and largely successful campaign against legal aid, culminating in the mendacious malevolence of Chris Grayling and his shameful LASPO. In 2006 the Lord Chancellor was a lord and a barrister, as all of them had been for the preceding 450 years, but Grayling, a former television producer, (what rubbish did he produce?) broke that tradition. He started a new one - the dispatching of poorly performing ministers to the Justice portfolio. Michael Gove succeeded Grayling and he was replaced by the gloriously vacuous Liz Truss. Within weeks of swearing her oath of office she was handed a golden opportunity to defend the independence of the judiciary after the press’s hysterical reaction to the High Court decision that Parliament should invoke Article 50 to begin the withdrawal

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from the EU. It seems she either forgot the words of her oath or didn’t understand them. In 2006 we were in the first phase of Welsh devolution, in which the National Assembly could make statutory instruments in limited areas of competence, but could not pass primary legislation.

Today we have moved to phase 4 of devolution, in which the Assembly finally has a conferred powers model of devolution, like Scotland - though the devolution settlement is much more complicated and its legislative competence is much more limited.

Current issues The scale of the changes since 2006 is so great that it is futile to predict the issues that will confront the profession in the future. Nevertheless I will mention four issues which Sarah Watkins and her fellow council members will have to deal with.

Brexit and its consequences Everyone would like the best possible deal for the UK when it leaves the EU. The sooner the uncertainty is resolved, the better. Yet as time passes with no prospect of a deal emerging, one cannot help fearing that the Government is making a dog’s breakfast of the negotiations - a continental Brexit rather than a full English Brexit.

The repercussions of a poor (or no) deal could be catastrophic. If London ceases to be the financial capital of Europe the large City firms will shed jobs because work has dried up. They will compete with the large commercial firms in the provinces to recover work that had trickled down to them. That could put pressure on those firms to bid for work that has passed down to smaller provincial commercial firms, with further aftershocks hitting other firms. The Law Society will have to help wean the government off the remnants of its EU derived legislation. There will be a vast number of consultations on changes to law and procedure (e.g. issue and service of proceedings and enforcement of judgments in the EU) and the Law Society’s law reform committees will be busy advising on the ramifications of proposed reforms. It is vital that the Society works with the Bar, the judiciary and the government to preserve the jurisdiction of England and Wales as the jurisdiction of choice.

Regulation The Government will not reform the regulation of legal services until it has crossed the whirlpool of Brexit transition and has either an adequate majority or cross-party support. But the present structure of two tiers of legal services regulation is unstable and unsustainable. The Law Society, as the representative body, should seek to profit from playing the two regulators against each other because ultimately there is room for only one regulator.

When the LSB started operation, I thought the SRA was easier to do business with. However, since 2014 when the rude and arrogant David Edmonds retired as chair of the LSB and the able but even more arrogant Paul Philip became chief executive of the SRA, I’ve changed my mind. The LSB censured the Law Society in June after it upheld the SRA’s complaint that the Internal Governance Regulations (IGR - which the Law Society

and SRA had agreed and the LSB had approved) interfered with the SRA’s independence. The complaint was justified, but the ruling was made after the SRA and Society had agreed to change the IGR to overcome the problem and the LSB had approved the change. The Law Society should not have been censured. On this occasion, one regulator supported the other. That must not happen again. I am afraid that its regulation will continue to concern the profession over the coming years.

Devolution There remains a colossal ignorance of (or indifference to) Welsh devolution in England. This is shown by the SRA foolishly imposing a common exam for all intending solicitors in England and Wales when the law in Wales is diverging from the law in England and the National Assembly’s legislative competence is expanding. The SRA and the LSB were surprised by the Welsh language issue for the SQE. They shouldn’t have been. All legal services regulators and representative organisations in England and Wales must understand and monitor developments in Welsh devolution and the extent to which the law of Wales differs from that of England. The strains and stresses on the single jurisdiction of including three strands of law - those of England only, Wales only, and England and Wales - must be managed sensibly and sensitively. The three strands can be entwined to form a rope that binds the laws of England and Wales together. The rope should not be placed around the neck of the single jurisdiction to choke the life out of it.

Council reform When Catherine Dixon was chief executive she deluded herself that she was a liberal meritocrat who would reform council. In the spirit of equality, diversity and inclusivity she criticised council members for their age, sex, sexual orientation and the colour of their skin, all of which are, according to Equality Act 2010, protected characteristics. Although Pandora opened the box, she left before she could close it. Council is still trying to shut the lid. Council has agonised over its size and composition for years. In 1954, it increased its size from 50 to 65 seats. It was then too large to fit into its Council Chamber so it moved to the current Council Chamber. Last year I persuaded council to rename the Old Council Chamber. It is now called the David Lloyd George Room.

Council expanded to 75 in 1969. In 2000 president Robert Sayer wanted to shrink it. I was a member of the Council Membership Committee when Sayer told us to reduce council to 30 seats. We recommended its increase to 100. Council was then too large for the Council Chamber; it met in the Common Room until 2008 when the Council Chamber was re-fitted.

Since those reforms, which added seats for various specialisms and demographic characteristics, other efforts have been made to shrink it. Council has never allocated all of its seats (I think only 97 have been allocated). In 2007 reform was abandoned because the debates were so unpleasant. Thanks to Pandora, this issue has been revived. I hope it is aborted again.

New office-holders For the first time in several years, there is stability at the top of the Law Society. In June, Paul Tennant, the interim chief executive since February 2017, was given the job permanently. Paul has done an excellent job in improving staff morale and leading the Society’s transition to its new form of governance.

Christina Blacklaws, the president, is a New Zealander who specialised in child care law. She is an experienced speaker and spokesperson and will acquit herself well in the media. Simon Davis, the vice president is a partner in Clifford Chance and is extremely bright, articulate and sensitive.

David Greene, the deputy vice president, is an experienced civil litigator with a high profile. He acted for Gina Miller’s co-claimant in the Article 50 case and is a former editor of the Green Book. The Law Society’s leadership is in excellent hands.

Dame Nicola Davies Dame Nicola Davies, who was Presiding Judge of the Wales circuit from 2014 - 2017, has been appointed to the Court of Appeal. She is the first Welsh woman to become a Lady Justice of Appeal. Since she trained as a solicitor before she qualified as a barrister, we can count her as one of our own. Congratulations, Dame Nicola.

Statistics The Law Society has published its Annual Statistical Report (ASR) for 2017. It attracted press coverage because it revealed that on 31 July 2017, for the first time, there were more women solicitors with practising certificates (69,993) than men (69,629). This year I found a horrifying new statistic. In 2017, 41.5% of PC holders had been admitted for less than 10 years. Assuming an equal spread throughout England and Wales, and adding the solicitors who qualified in 2006-07 and since 31 July 2017, more than 41.5% of the solicitors in this constituency (possibly as many as 45%!) have been admitted since I became your council member in 2006.

Shocked by this, I looked up the age profile of the profession. In 2017 the average age for solicitors with practising certificates was 43. I’m older. I remember trolley buses in Cardiff. I was living in Cardiff when it became the capital city of Wales. Mr Churchill was prime minister when I was born.

I reflected on this and concluded it was time to retire from council.

Thanks I have worked closely with the Wales office so I’d like to thank Lowri Morgan and Kay Powell in particular for their support, and Richard Jones, Gareth Williams, Rhys Jones and Charlotte too. All the past and current members of the Wales committee have been very supportive (particularly my fellow council members Carolyn Kirby (the third president from Wales), the late Robin ap Cynan, John Pickup, Jonathan Stephens, Mark Evans and Patricia Beeching). I am grateful to Mark Evans, the chair of the Wales committee, for his generous tribute at the Law Society’s Wales Summer Reception. I am also grateful for the support I have had from the council of Cardiff law society and each of its presidents. I am also grateful for the support from Cardiff University, particularly from Ian Brookfield, Byron Jones and Jayne Woodward.

And thanks to those who voted for me (or, more precisely, didn’t vote against me!) who gave me the opportunity to be your council member. It’s been an honour and a pleasure. Thank you! Diolch yn fawr. l David Dixon DixonD@cardiff.ac.uk Twitter: @saldixie * Editor’s note: Our greatest thanks to David for his significant commitment, time and wit in representing Wales and for drafting his excellent and engaging articles for Legal News over the last 12 years.

His accounts and analysis will be truly missed. THANK YOU David. Enjoy your retirement from office!

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FEATURES

Cardiff & District Law Society visits the Estonian Parliament A delegation from Cardiff Law Society recently visited the Estonian Parliament. It consisted of Clive Thomas, the President of the Society, together with Secretary Michael Walters & Phillip Griffiths Council member and Senior Clerk at 30 Park Place.

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hey had an excellent meeting with Jaak Madison,MP and Deputy Chairman of the European Union Affairs Commission. He explained the work of the commission and discussed Brexit issues. Our delegation also explained our concerns and those of the Law Society, regarding the future collaboration between lawyers in Europe and the UK, the choice of jurisdiction, the law and enforcement of judgments and also security and policing. They also discussed Wales, the Legal scene in Cardiff and the growing body of laws emanating from the Assembly and calls for a separate jurisdiction.

Our delegation was then treated to a very informative tour that included a visit to the plenary hall - where they were allowed to sit in the MPs places - even the seat of the President of the Republic of Estonia!

The story of Estonia and its successful fight for Independence, which it achieved in 1991, is fascinating and truly uplifting.

Grateful thanks go to Phillip Griffiths and his Estonian wife Annika for arranging the trip and acting as our ‘tour guides’! l

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FEATURES

#LegalCardiff campaign launched at the CDLS Managing Partners & Directors lunch 2018 The President of Cardiff & District Law Society launched its #LegalCardiff initiative at Cardiff City Stadium at its annual Managing Partners and Directors lunch. The initiative is set to help build on CDLS’ considerable existing links between the Cardiff legal industry and other legal and commercial industries in Wales, the UK and beyond.

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ith speeches from President of the Society Clive Thomas, Muntaz Hussain of the Legal 500 and Malcolm Davies from Welsh Government, the event, sponsored by Legal Network Wales and Lloyd’s Bank, saw senior lawyers and directors representing the leading law firms in the area discuss the opportunities for the legal sector in Cardiff.

In light of Brexit, the increasing separation of judicial and legislative powers for Wales and opportunities to do more on our own doorstep with new international brands coming into South Wales, CDLS is taking a proactive and productive step to raise the profile of the region’s legal prowess and work hard to increase opportunities for our members. You will see the hashtag #LegalCardiff used extensively throughout the tenancy of Clive Thomas as CDLS President and, hopefully, as a legacy for future presidents to build upon.

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A SENSE OF SELF...

Both the Commons and the House of Lords have recently voted for the UK to be the first to accept the creation of a baby using DNA originating from three different people.

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his IVF (in vitro fertilization) technique is known as mitochondrial replacement therapy and concerns the prevention of certain genetic diseases, which could potentially assist up to 2,500 women of reproductive age in the UK. The popular press, perhaps unfortunately, coined the phrase “three parent babies”, which immediately upped the ante in the debate and brought forth intense discussion involving church and pro-life groups. In particular this has concerned the ethics of this procedure, set against long held fears of designer babies and eugenics. Safety concerns have also surfaced and there have been warnings that any children of this technique could be born sterile or be at risk of cancer and premature aging. There has also been international condemnation where authors have commented that, because these children would have heritable genetic changes, that there are significant risks to the health of future generations.

Mitochondria are present to generate energy for the cell. They come from the mother and have their own genetic material, which sits alongside the germ line DNA of the “conventional” mother and father. The thought that this DNA might constitute parentage (i.e. the third parent) brings forth some interesting legal points. Parenthood has both a genetic and social meaning, although the former is regarded as the fundamental tie between parent and child. This contribution must be both direct and immediate.

To clarify, grandparents provide a quarter of a child’s DNA but are not accorded the status of “half“ genetic parents. The recent proliferation of assisted reproductive technologies has of course complicated matters and given that the donor of the mitochondria is making a direct and immediate contribution of generic material, then in my view, we have a new biological parent. In preparation of this article, I have found it difficult to make the counter argument. Pertinent to this of course, is now the fact that the new (third) parent is a second female parent. Avoiding this issue by trying to claim mitochondrial donation is merely a tissue donation is not adequate. Others may say that the contribution of the third parent to the child’s DNA is low, less than 0.1%, but in the world of genetics, where we are examining disease-causing changes which occur at a frequency of one in three thousand million (the size to the human genome), this is significant. We simply do not know enough to say that the mitochondrial DNA will have no material effect on the characteristics of the child.

In the UK, the mother is the person who carried the child and gave birth, the father is the man who provided the sperm. So what could be the status of the donor of the mitochondria? Is it that they have the same status as a donor of an egg or sperm for IVF or perhaps the status of those who donate blood, organs or bone marrow? Egg or sperm donation is in effect normal reproduction from a genetic point of view but the donation of mitochondrial DNA does not fall into that category; it may create a set of unique parental rights. Equally, mitochondrial donation cannot be considered simply as a tissue donation; there is an impact on future generations, as the DNA will be passed on.

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WWW.CARDIFFLAW.ORG

Since the courts quite rightly take the view that a child should “know” its biological parents, the second female parent may well wish to take an interest in the child (via appropriate application of her Parental Responsibility rights) or they may wish to give up Parental Rights. Their view may change over time; how the donor feels at the time of donation could be very different to how she feels once the child is born. Current provisions under the Human Fertilisation and Embryology Act 2008 do not cover this situation adequately. For example, a Parental Order as it relates to surrogacy (to gain or relinquish parental rights) can only be granted after a child has been born (and then for a fixed period only), not at the point of conception. Perhaps the mitochondrial donor will be able to gain Parental Responsibility via a court order or a formal ‘parental responsibility agreement’ with the child’s birth mother (let us presume that she is the egg donor as well...it gets even more complicated if she is not!).

If the premise of the second female parent is accepted, which I believe it should be, then we are in new legal territory as it relates to assisted reproduction and it is likely that several legislative amendments will be required to provide for mitochondrial donation. l Dr Neil Sullivan, BSc., MBA (DIC), LLM, PhD. General Manager, Complement Genomics Ltd. trading as www.dadcheckgold.com Dr Neil Sullivan is General Manager of Complement Genomics Ltd, which provides the dadcheck®gold service for parentage testing. He is a PhD level molecular biologist with a LLM in commercial law and has a particular interest in consent