Law Reform
Processes of law reform
Notes:
Law Reform Notes Law Reform Questions
Task: Read the notes on Law reform and complete the worksheet.
1. Parliament
Government Bills; Private Members Bills
Problems - shortage of parliamentary time; lack of interest in "lawyers' law reform"
2. Judiciary
Usually judges develop the law slowly via the doctrine of precedent.
Note the important role of the H/L since the Practice Statement 1966 e.g.
Anderton v Ryan overruled in Shivpuri; Lynch overruled in Howe; Caldwell, overruled by R v G and R etc.
Certain major developments e.g. the tort of negligence (Donoghue v Stevenson); marital rape (R v R)
3. Law reform bodies / agencies
(i) Law Commission (and the Scottish Law Commission)
Existed since Law Commission Act 1965
Made up of five commissioners - both academics and practitioners - and a staff of civil servants, both lawyers and lay personnel.
Only full-time body. Very capable and widely respected.
Produced many reports (including draft Bills) and working papers.
Many successes - Animals Act, matrimonial property reform, Land Registration Act.
Many draft Bills ignored - lack of political will and parliamentary time
(ii) Criminal Law Revision Committee
Home office based, but usually regarded as independent.
Made up of both academics and professional lawyers and judges.
Part time and not called together since 1985
Some successes e.g. Criminal Law Act 1967, Theft Acts 1968 and 78
Many failures e.g. evidence reform, mental element in crime.
(iii) Law Reform Committee
Part of the Lord Chancellor's Dept.
Made up of academics, lawyers and judges
Again not a permanent body and little used recently
Overshadowed by the Law Commission
Some useful reforms
Other reports ignored
4. Royal Commissions e.g. Benson, Runciman
Formed to investigate and suggest reform in particular areas of the law
Made up of practitioners and academics
Produce comprehensive reports and proposals into their areas of inquiry
5. Pressure Groups, public opinion. E.g. Greenpeace, the anti abortion lobby etc.
6. Government Departments
e.g. Home Office, Lord Chancellor's Dept, etc. do introduce their own limited reforms but only to the extent that they can by delegated legislation, i.e. under powers already granted by Parliament. Ultimately it is only 1 and 2 above (Parliament and the courts) who actually have the authority to make new law. All that 3,4 and 5 can do is propose changes.
THE LAW COMMISSION
This was set up in 1965 by the Law Commissions Act. The idea behind it was to consider questions of law reform because of the difficulty of finding time for this in the parliamentary timetable. The Act has now been amended by the Law Commission Act 2009.
Task: Read the article in the Law Society Gazette about the new Law Commission Act and answer the questions in the attached worksheet.
It is the only full time law reform body and consists of a chairman and four other commissioners assisted by a support staff of legally qualified and lay civil servants. It is usually chaired by a a High Court Judge and the other four commissioners will be from the ranks of senior academics, solicitors and barristers.
It has a duty to keep the law under review with the aim of developing and reforming it through codification, consolidation, the simplification and modernisation of the law and the repeal of obsolete Acts
The Commission may be asked by the Lord Chancellor to consider an area of law, or it may select areas it believes are in need of reform
Watch the video given by a retired chairmen of the Law Commission outlining its role in the Law Reform process:
When it was first formed in 1965 an ambitious programme was announced aimed at codifying family law, contract law, landlord and tenant law and the law of evidence, but this was gradually abandoned and the Law Commission has been more successful in dealing with smaller areas of law.
Its proposals are laid before Parliament each year and some important Acts of Parliament have subsequently been passed; including the Criminal Attempts Act 1981, the Unfair Contract Terms Act 1977 and the Supply of Goods and Services Act 1982.
However since the late 1980s very few proposals have been enacted because of lack of parliamentary time, and to date more than 20 of its reports have not been implemented.
One such omission is the implementing of the draft Bills which, if passed, would enact the Commission's draft criminal code. If Parliament could only find time for these Bills they would simplify and clarify most of the criminal law.
The main difficulties the Commission faces are:-
1 low levels of implementation because of problems in finding time for the enactment of its proposals
2 slow or no progress on its proposals for codification and
3 keeping clear dividing lines between its work and that of other law reform agencies
Success rate:-
first 10 years 85%
second 10 years 50%
1990 no enactments
1994 onwards greater action using something known as the Jellicoe procedure
2004 some improvement - 7 recent reports implemented, 17 more accepted by the Government and 15 still awaiting attention.
2005 The Government has taken up the Commission's call for a review of the law of murder.
Recent reforms which have been enacted:-
Civil Evidence Act 1995
Law Reform (Year and a day rule) Act 1996
Land Registration Act 2002
Methods of law reform used by the Law Commission
consolidation
codification (e.g. Draft Criminal Code)
simplification
modernisation
elimination of anomalies
Click on this link to see how the Law Commission review an area of Law.
Consolidation
When a branch of law has evolved piecemeal so that there are a number of separate Acts of Parliament on related topics these statutes are sometimes consolidated into one for greater convenience and clarity. Examples of such consolidating statutes are the Tribunals and Inquiries Act 1992 and the Powers of the Criminal Courts (Sentencing) Act 2000. When consolidation takes place the law is not changed in anything other than minute details, if at all. There may be "corrections and minor improvements" or at the most a few amendments recommended by the Law Commission. The passage of the Bill through Parliament is a formality. There is no debate on it.
Codification
Codification differs from consolidation in that consolidation is only putting together into one statute what was previously found in several, whereas codification brings together both the existing statutes and the case law on a particular topic and makes them into one statute. With codification the law is more likely to be changed in the process but nevertheless it is similar in function to consolidation in that in both cases the object of the exercise is to simplify and clarify the existing law and not to make substantial changes to it. Notable examples of codifying statutes are the Sale of Goods Act 1893, the Bills of Exchange Act 1882 and more recently the Theft Act 1968.
Click here to see what the draft criminal code is. Click here for the document containing the draft criminal code.
Arguments for codification
the great bulk and unwieldiness of our present law
the need to remove uncertainties and irrational distinctions
the need for modernisation
the usefulness of a systematic, compact and more accessible law
Arguments against codification
the problems of creating a complete code
the difficulty of future alterations of any code
the risk that a code would be more rigid than our present common law system if made too detailed, or if drafted in broad terms without detail, it would need interpreting by the courts and hence be just as uncertain as the existing common law.
Repeal
When statutes no longer have any "practical utility" Statute Law (Repeal) Acts can be passed to remove them from the statute book.
Task: take the quick quiz on Law reforms to see if you understand the key points.
