The official solicitor. A fine balancing act
28 January 1997
8 November 2013
4 February 2013
7 January 2013
16 October 2013
4 March 2013
Since the Middle Ages, there has been an official in the English justice system responsible for looking after the interests of children, the mentally ill, prisoners and others who cannot defend their legal rights.
For the past 110 years this role has been taken by the Official Solicitor to the Supreme Court, appointed by the Lord Chancellor but independent of him, answerable to judges but not to the Government.
The role of the Official Solicitor - held by 59-year-old barrister and former Naval officer Peter Harris since 1993 - has evolved over the centuries without the post's powers ever being clearly defined.
This anomaly was seized on by the media and politicians during the furore over Harris's handling of mass-murderer Fred West's estate.
Required to maximise the financial return on behalf of West's children, Harris first sold the rights to West's papers to a publisher in 1995 and then, last year, granted a film company rights to use the material.
The outcry prompted the Lord Chancellor, Lord Mackay, to order an inquiry into his legal duties. Its terms of reference have still to be decided but many lawyers have dismissed it as a knee-jerk reaction which should not be allowed to undermine the importance of the job.
Elizabeth Lawson QC, chair of the Family Law Bar Association, says: "Setting up an inquiry was a sop to media concerns that will have faded if and when it ever reports. It was classic Sir Humphrey."
It is the delicate distinction between the Official Solicitor's appointment by the state but his independence from it that has caused incumbents to become caught in high-profile clashes with the authorities.
Harris started 1997 back in the headlines after deciding to take the Government to the European Court of Human Rights. He accused it of violating the human rights of five children by denying them a legal remedy for alleged delays by a local authority in taking them into care.
In the 1970s, his predecessor, Norman Turner, provoked a similar furore when he intervened in the case of three London dockers jailed for contempt at the height of a docks dispute. The dockers were released following Turner's intervention.
But contempt cases make up only a tiny percentage of the Official Solicitor's 7,000 active cases. About 60 per cent involve children.
Harris is responsible for a staff of 130, based in Chancery Lane, London, including 13 lawyers and 60 caseworkers, and a budget of £6.5m, around a quarter of which is paid by the Legal Aid Board.
If he is involved in private law proceedings, he generally looks to the parties involved to pay his costs. If a local authority is involved, he normally requires it to pay half his costs.
Broadly, the Official Solicitor's work falls into six categories - family work, such as wardship and adoption, and the Lord Chancellor's Child Abduction Unit; prisoners who have been refused bail or jailed for contempt; litigation on behalf of children or the mentally disabled; Court of Protection; trusts and the administration of estates; and as an amicus curiae to the court.
Over the past six years, there has been a huge increase in the number of medico-legal cases that the Official Solicitor has become involved in, often at the frontiers of developing law. These include the treatment of patients without their consent, such as adolescents suffering from anorexia, as well as limiting treatment, for example, when babies are born with severe brain injuries.
Harris is refusing interviews pending the inquiry into his legal duties. But in a recent speech describing his work, he highlighted the difficult ethical decisions the medical profession has to make in some cases.
He believes legislation is required to fill the gap when cases involve children, and sometimes adults, who suffer from severe psychological disturbances but do not fall within the terms of the Mental Health Act 1983.
"The doctors and the court are then thrown back on the common law, and the extent to which treatment can, and should, be forced upon an unwilling patient can create great difficulty," he says.
In cases involving children, Harris regards himself as the "alter ego of the child litigant". However, he is also under a duty to the court, which at times causes conflict because the outcome might not be what the child wanted.
A new role "thrust" upon him involves him imposing restraints on the freedom of the Press and media through the use of injunctions. For example, he successfully applied for an injunction prohibiting publication of the whereabouts of the two boys who murdered Merseyside toddler Jamie Bulger.
According to Lawson, the principal advantage of the Official Solicitor's office is that it has built up a special expertise which is very valuable.
"If you talk to High Court judges, they will say the Official Solicitor's department is marvellous," says Lawson.
"What has given rise to concern is one particular case which raises the wider question of whether or not the Official Solicitor ought to have a role beyond that of actually representing people in proceedings and whether he should represent children or other people proactively or once somebody else has started proceedings."
Naomi Angell, a child law specialist with Goodman Ray in London, thinks the whole area of child representation should be looked at.
She says: "The Official Solicitor has a clear role in big child abuse cases, tricky medical ones, in cases with a strong international element needing liaison between government departments, and as an amicus curiae in advising the court. But it is just not so clear in the more run-of-the-mill cases. There is an inherent conflict in the Official Solicitor's role which means he does not represent children's views in the same way a guardian ad litem would."
Iain Hamilton, who specialises in child law at Jones Maidment Wilson in Manchester, highlights practical concerns - delays, remoteness from cases outside London, lack of social work or legal training among the department's caseworkers. But he says these are counterbalanced by high quality lawyers and the funding of cases.
Hamilton says: "I would like to see a review of his powers so there is some sort of written understanding which members of the public, lawyers and others can refer to so they know from where he derives his authority."
He says of Harris: "He is involved in cases which would test anybody's ingenuity, responsibility, conscience even. He has to deal with urgent life-and-death situations, ask courts to give permission to sterilise somebody against their will, to authorise a Caesarean section on someone who is still a child in law - people would be horrified at some of the things that have to be done."
Peter Harris Fact file
Peter Harris has held the title of Official Solicitor to the Supreme Court since 1993. The controversy over his handling of the estate of serial killer Fred West, which started in 1995 with his arrangement of an official biographer, is a rare foray into the limelight.
A quiet man caught in the centre of the row over West's grim legacy, Harris was the first person appointed Official Solicitor who had to fight external competition for a post previously filled from within government legal ranks.
Educated at Cirencester Grammar School, he spent 17 years in the Royal Navy before retiring in 1972 as a Lieutenant Commander, shortly after completing his Bar Finals.
Harris did his pupillage in London before practising at the Bar for two years, specialising in crime, common law and family law. He joined the Lord Chancellor's Department as a legal assistant in 1974. Married, with one son and two daughters, he worked his way up through a variety of legal and administrative posts, including head of the Property and Family Law Division.
His last post before becoming Official Solicitor was Circuit Administrator for the Northern Circuit between 1986 and 1993. During that time, he wrote a procedural handbook on the Children Act 1989.