Blake Morgan Looks 'Back to the Future' in Law

Posted by Bruce Potter on

Fans of the classic film 'Back to the Future' will be all too familiar with today's date, 21 October 2015, as the date Marty Mcfly and eccentric Doctor Emmet Brown travelled forward, in the DeLorean. Fast forward 30 years from when the film was first shown, and we find ourselves in a slightly different world to the one predicted in the film. Laws were very different back in 1985, and none of us could have predicted just how much the times have changed. Here at Blake Morgan, we have decided to go 'Back to the Future' law-style, reviewing how things have evolved over the last 30 years.

Health Law- Back to 1985 via 2015, and forward to 2045

What has changed in health laws from 1985 compared to 2015? And how does 2045 look to shape up in terms of the law? What will change and most importantly - how do we get our hands on a DeLorean?

Look back first to 1985, and you see health organised in (integrated) regional health bodies with little or no provider /commissioner divide; block budgets; GP-based primary care and free at the point of delivered care, but effectively rationed by capacity and medical capability. Improving poor outcomes, quality and time to treatment; diagnostic technology emerging but not widespread.

Look forward to 2045, and you see integrated regional care providers with little real commissioner/provider divide, capitated (but really block) budgets; co-funded care which is still free at point of care but service enhancement is a voluntary extra. Nurse-led integrated primary health and social care delivered in the community and spearheaded by proactive 24/7 monitoring and wearable tele-health gadgets, with a focus on risk assessment and acute admission pre-emption for an overwhelmingly elderly population.

And today? A bit “stuck in the middle” neither up nor down, with the provider/commissioner split weakening, tariff giving way to capitated/ACO, GP-led primary care, not yet community integrated and under real stress. Good or great care recognised but slipping out of reach due to demand and affordability; technology offering solutions but we cannot deliver at scale or in the right settings for an ageing population. Oh well, at least we still build great looking cars!

Housing Law- Would Marty and Jennifer have had the 'right to buy?'

The 'Right to Buy' scheme was originally introduced in 1980, making Marty and Jennifer the perfect candidates for Part V of the Housing Act, brought in in 1985. The Housing Act 1980 has since formed the basis of the 'Right to Buy', for the last 30 years.  It was preserved for stock transfer tenants in 1993, granted to some Housing Association tenants in 1997 by the outgoing government of the day in the muted form of the Right to Acquire, then curtailed in 1997 by the incoming government who imposed substantially lower caps on the discounts available.  In 2004, it was further curtailed by requiring tenants to live in their properties for a minimum of 5 years (rather than the previous 3 years), increasing the time for the discount to be repaid to 5 years, and requiring tenants to offer the property back to the former landlord for the first 10 years of ownership. 

In 2012, the 'Right to Buy' was reinvigorated with the trebling (and in London quadrupling) of discounts.  In 2014, those discounts were increased further and pegged to increase with CPI annually.  Part V of the Housing Act 1985 has seen much debate and is perhaps one of the most divisive pieces of legislation in the last 30 years, however, it largely remains unchanged during that time and now, some 30 years later, it is formed the part of the governments home ownership drive and, somewhat controversially, is to be extended to all Housing Association tenants.

Family Law- Marty and Jennifer’s marriage is looking rocky…

If Jennifer and Marty had decided to end their marriage in the late 1980s, their family lawyers would have been working through the Matrimonial Causes Act 1973 (as they do today) to negotiate a financial settlement, whether or not they had hoped to regulate their family finances in a certain way.

Fast-forward to 2015, and there has been a notable shift towards respect for the individuals' autonomy, moving away from a more paternalistic approach of the Courts. Case law has evolved over time so that respect for the couples' autonomy and preference for the division of their assets is likely to be respected, provided that their position is appropriately recorded and entered into (in a pre-marital or post-marital agreement), with legal advice followed by the parties to maximise the chance of this being upheld. Currently, there seems to be a fine balancing act between the individuals' autonomy and the Court's guiding hand. Going forward it is likely that spouses will increasingly want to be masters of their own destiny, putting together a bespoke arrangement (during their marriage) to determine the outcome, if they are to separate or divorce.

But what if Marty and Jennifer had decided not to get married and to co-habit instead? Currently, the legislation is very different for married and unmarried couples, despite the fact that they will no doubt share the same challenges and triumphs through life. 30 years ago, had Marty and Jennifer decided to cohabit and not marry, their rights would not have been high on the agenda. The myth of the 'common law man and wife' still lurks at the back of our minds; this area of the law needs to be clarified for couples who separate, having not married. The current law, based on property ownership, is a minefield of archaic Trust principles that are no longer acceptable, in the eyes of the modern family and some provision for children. Is it not time to set out legal protection for cohabitants? Should this be a proactive choice or should this be something that evolves with the relationship?  These are likely to be areas of debate for the future family lawyer.

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Bruce advises both private and public organisations on all aspects of commercial, corporate policy and governance advice.

Bruce Potter
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