Law Reform Lecture Notes
"Heart-breaking delays and ruinous costs were the lot of suitors.Justice was dilatory, expensive, uncertain, and remote. To the rich it was acostly lottery: to the poor a denial of right or certain ruin. The class whoprofited most by its dark mysteries were the lawyers themselves."
Although this could be a fair comment on the legal system in the 1990s, thesewords were written by Sir Thomas Erskine May in 1861 (Constitutional History ofEngland).
The social reformer Jeremy Bentham (1748-1832), argued for constant radicallegislation to achieve the greatest happiness of the greatest number. From thistime efforts were made to demystify law and to see it as a set of practicalrules. From the Reform Act 1832 onwards, a series of reform measures werepassed. The Judicature Acts 1873-75 were followed by a series of Acts codifyingsubstantive branches of law, like the Sale of Goods Act 1839 and the Partnershipact 1890. This continued with a series of reform Acts on land, eg, the law ofproperty legislation of 1925. These various measures, however, were ad hocresponses to particular problems. There was no overall plan or consistency ofeffort and this was to remain the situation until the 1960s.
The need for continual reform arises for a number of reasons. Statutes remainin force until repealed and some statutes get overlooked, like the InnkeepersAct 1424. The vast amount of law and the increasing rate at which it is beingmade has become overwhelming; an example of this is that, according to the HomeOffice, the number of criminal offences is over 70,000. In a rapidly changingsociety new laws have to be made to meet new needs, eg, the Criminal Justice andPublic Order Act 1994 makes it an offence to make, distribute, advertise orpossess child pronography which is simulated by computer graphics.Responsibility for the law is somewhat diverse as the Home Secretary isresponsible for the criminal law, while the Lord Chancellor is responsible forthe courts and both civil and criminal procedure. There is no single body orperson who can accept responsibility for reform.
WHY NOT LEAVE LAW REFORM TO THE COURTS?
The courts, through their use of the doctrine of precedent, could bring aboutchanges in the law. Some academics favour judge-made law, because it is based onreal cases rather than legislation which is made in an artificial way. However,judges changing the law conflicts with their constitutional position, as it isup to Parliament to do this. Other arguments against judges reforming the lawhave been put forward by Norman Marsh, a former Law Commissioner:
(a) A judge cannot make assumptions about people's values, this is betterleft to Parliament;(b) reform depends on a case coming before the courts;(c) a reforming decision may be hard on the losing party;(d) the system of precedent is slower than legislation;(e) the courts are not well informed on the background to problems as theycannot consult experts or interested bodies.
ESTABLISHMENT OF THE LAW REFORM AGENCIES
In 1921 an American lawyer, Benjamin Cardozo, in "A Ministry ofJustice" Harvard Law Review, 1921, suggested a permanent body:
"The courts are not helped as they could and ought to be in theadaptation of law to justice. The main reason they are not helped is becausethere is no one whose business it is to give warning that help is needed..."
In 1934 the Lord Chancellor set up the Law Revision Committee which becamethe Law Reform Committee in 1952. It is a part time body of practitioners andacademics whose task is to examine and report on any matters of civil lawreferred to it by the Lord Chancellor.
In 1959 the Home secretary set up the Criminal Law Revision Committee, a parttime body, to carry out a similar role as regards criminal law, and it examinesmatters referred to it by the Home Secretary.
In 1965 a White Paper proposed setting up a full time body:
"One of the hallmarks of an advanced society is that its laws should notonly be just but also that they be kept up to date and be readily accessible toall who are affected by them."(Proposals for English and Scottish Law Commissions 1965 (Cmnd 2573.)
This was quickly followed by the Law Commissions Act 1965, which set up twoCommissions, one for England and Wales (jointly) and one for Scotland. Section 3of the Act provides:
"It shall be the duty of ... the Commissions ... to keep under reviewall the law ... with a view to its systematic development and reform, includingin particular the codification of such law, the elimination of anomalies, therepeal of obsolete and unnecessary enactments, the reduction of the number ofseparate enactments and generally the simplification and modernisation of thelaw ..."
The section went on to provide that the Commissions should:
(a) consider proposals for reform made to them;(b) prepare and give to the Minister programmes for the reform of differentbranches of the law;(c) prepare draft bills for matters approved;(d) prepare the consolidation of statutes on request by the Minister;(e) give advice on reform to Government departments and others;(f) obtain information about other legal systems which might help in the task ofreform.
WHO CONTRIBUTES TO REFORM OF THE LAW?
As we have seen above the judges play a part in reform of the law by adaptingold decisions to new situations. The example is often given from the law of torthow the principle in Donoghue v Stevenson, ie, that you must not injure yourneighbour, has been used to impose liability in a wide range of situations.
THE LAW REFORM COMMITTEE
This committee has produced a range of reports which have been followed bylegislation. The Occupiers' Liability Act 1957 and the Latent Damage Act 1986are examples of this.
THE CRIMINAL LAW REVISION COMMITTEE
This committee also produces reports from time to time, and the Theft Act1968 was the product of one report. However, its report on criminal procedureentitled "Evidence General" which was made in 1972 after eight yearsof investigation, was never implemented. This was partly because of therecommendations which it made, which included the abolition of the right ofsilence when a suspect is arrested.
Note: The problems faced by the above two committees are that they are parttime, have limited resources, cannot initiate reports but have to wait for theMinister to tell them what to examine, and often take a long time to produce areport. The consequence is that their reforms have been piecemeal.
The Law Commissions are dealt with separately below.
Parliament has numerous committees which investigate various aspects of lawreform from time to time. In July 1988, eg, a Select Committee of the House ofLords was appointed to review the law and procedure relating to murder and lifeimprisonment. It recommended that the sentence for murder be changed from afixed sentence of life imprisonment to a maximum of life imprisonment, ie thecourt would have power to give a lesser term. In December 1995, the House ofCommons Home Affairs Committee produced a report on the mandatory life sentenceand recommended that the sentence should stay.
These constantly keep under review the law within their particular ambit.They may appoint a committee from within the department to review a topic or mayhelp in directing the work of an independent advisory committee.
One example of a committee within a Government department comes from theOffice of Fair Trading. Following numerous complaints about timeshare selling, adepartmental report was made calling for legislation. The Timeshare Act 1992 nowgives a consumer a right to cancel within 14 days, if a timeshare agreement ismade with a business.
Government ministers may also refer matters to the Law Commission. In 1994,the Home Secretary referred the hearsay evidence rule to the Commission. Thisrule prevented a witness in court giving evidence about something which someoneelse had told him or her, and it was widely believed that this operated toexclude important evidence. The Law Commission recommendations were implementedby the Civil Evidence Act 1995, which abolishes the hearsay rule in civilproceedings.
These bodies also produce ideas for reform, eg, the Royal Commission on CivilLiability and Compensation for Personal Injury reported in 1978 (PearsonReport). One of its recommendations was a "no fault" compensationscheme for the victims of road accidents, funded by a tax on petrol, but thiswas not implemented. It has been said that such commissions are merely a way ofpostponing dealing with a problem for at least two years. This criticism cannotbe made about the report of the Royal Commission on Criminal Justice in July1993, swiftly followed by the Criminal Justice and Public Order Act 1994, whichimplemented many of its recommendations.
UNIVERSITIES AND COLLEGES
Some academics in certain universities and colleges are constantly carryingout research in various areas of law. One example of such an institution is theCentre for Socio-Legal Studies at Oxford University.
Pressure groups with widely differing aims also contribute to law reform; eg,the National Consumer Council which promotes consumers' interests; the HowardLeague for Penal Reform which campaigns for prisoners; the Justice organisationwhich upholds the principles of justice and the right to a fair trial and theLegal Action Group which campaigns to improve legal services for disadvantagedmembers of society.
The influence of the media must not be forgotten, especially with suchpioneering programmes as "Rough Justice".
THE LAW COMMISSION
Although reference will be made to the Law Commission, it must be rememberedthat there is also a Commission for Scotland. The two Commissions co-operate onmatters which affect both Scotland and also England and Wales.
There are five members, namely the chairman and four others who must bebarristers, solicitors or university teachers. They are appointed initially forfive years but may be asked to stay for longer. They work part time for theCommission. There is currently a staff of 20 lawyers including four draftsmenfrom the Office of Parliamentary Counsel. There are also 15 research assistants,normally appointed for one year, an administrative staff and consultants who areused on an ad hoc basis. The Commission is financed by the Lord Chancellor'sDepartment and in 1997 the cost was £4 million. There is a separate "ConveyancingStanding Committee" which deals with matters concerning land.
The purpose of the Commission is to keep the whole of the law of England andWales under review and promote the reform of the law. Its aims include thefollowing:
(a) to simplify the law;(b) to codify the law;(c) to eliminate anomalies;(d) to reduce the number of separate Acts on a particular matter;(e) to repeal obsolete Acts.
HOW DOES THE LAW COMMISSION CARRY OUT ITS WORK?
The Commission publishes a consultation paper (formerly called a workingpaper) on a particular matter, explaining the problems and making provisionalrecommendations. These are circulated to lawyers, academics, Governmentdepartments and other interested bodies, asking for comments. After a suitableperiod to allow for comments to be collated and discussed, a draft report isprepared, usually with a draft bill attached and this report is presented to theLord Chancellor. The Commission has so far produced approximately 150consultation papers and 250 reports and publishes an annual report. The maininterests of the Commission are family law, criminal law, the law of property,common law and statute law revision.
EXAMPLES OF THE COMMISSION'S WORK
Programmes for reform
One of the tasks of the Commission under the Law Commissions Act 1965 was toprepare programmes for reform and to submit these to the Minister. The followingprogrammes have been produced:
(a) the first programme (1965) contained 17 items, including the codificationof the entire law of contract;(b) the second programme (1968) included the codification of criminal and familylaw;(c) the third programme (1973) dealt with private international law;(d) the fourth programme (1989) covered nine items on such diverse matters asthe modernisation of conveyancing, and the law relating to mentallyincapacitated adults;(e) the fifth programme (1991) dealt with two items, ie, judicial review and theuse of damages in personal injury litigation.(f) the sixth programme (1995) covered 11 items, ie the law of contract,damages, limitation periods, illegal transactions, landlord and tenant, transferof land, trusts, family law, company law, third party rights against insurers,and criminal law (including involuntary manslaughter and offences against theperson).
Listed below is a very small selection from the reports.
(a) Family Law: Review of Child Law Guardianship and Custody (Law CommissionNo. 172): the Children Act 1989 was partly based on this.
(b) Statute Law Revision: 13th Report (Law Commission No. 179). This includeda draft bill which was presented to Parliament in May 1989 and passed as theStatute Law (Repeals) Act 1989 in November 1989. It repealed a number of disusedstatutes, including the Innkeepers Act 1424. More recently, the Statute LawRepeals Act 1993 contains 64 pages of statutes and parts of statutes which havebeen repealed, from the Ordinances of Corporations Act 1503 to the present time.
(c) Criminal Law: Computer Misuse (Law Commission No. 186) was presented toParliament in October 1989 and became the Computer Misuse Act 1990 in June 1990.
(d) Family Law: The Ground for Divorce (Law Commission No. 192). This wasproduced in October 1990 and included a draft bill. It suggests that the aim ofdivorce laws should be to dissolve the marriage with the minimum of distress, toencourage the amicable resolution of practical issues about the home, money andchildren, and to minimise the harm to children.
(e) Distress for Rent (Law Commission No. 194) was issued in April 1991. Itexamines the existing system, under which a landlord who is owed rent can enterthe property and take the tenant's goods, to sell them in order to pay the rentowed. It describes the right as being wrong in principle.
Approximately 150 consultation papers have been issued. For example, in 1995,the Commission published 'Liability for Psychiatric Illness' (Paper No 137).This paper examined, in particular, the situation where someone sufferspsychiatric illness following the death or injury of a third party caused by thedefendant's negligence. The Commission believes that the requirements forliability laid down in Alcock v CC of South Yorkshire Police (1991) are toostrict and that it is sufficient if the plaintiff can establish a close tie oflove and affection with the victim.
The Commission's work on the codification of contract law was eventuallyabandoned, one reason being the difficulty of what to do when faced withconflicting case law. The Commission currently hopes to codify the criminal law.Report No 218 Criminal Law: Legislating the Criminal Code: Offences Against thePerson and General Principles (November 1993). The Commission points out thatthis area of non-fatal offences against the person is in urgent need of reformand cites the archaic language of the Offences Against the Person Act 1861.
The Commission is constantly looking at areas which would benefit fromconsolidation measures. Examples resulting from the work of the Commissioninclude the Merchant Shipping Act 1995, the Employment Rights Act 1996, theIndustrial Tribunals Act 1996 and the Justices of the Peace Act 1997.
The Commission has been working for some time on a programme ofrationalisation of local legislation. The Statute Law (Reform) Act 1989, forexample, included the rationalisation of approximately 2,900 local and privateacts for South Yorkshire which had been passed between 1850 and 1864. The LawCommission published a chronological table of local legislation in 1996 coveringover 37,000 Acts of Parliament. This table covers both public local Acts andprivate local Acts and gives details of those still in force.
The Law Commissions Act 1965 sets out codification as one of the duties ofthe Commission. The idea of a code is quite simple as the rules from one branchof law would be put together in to one book or "code". This has itsattractions, eg, the opportunity could be taken to simplify the law, to useclearer language and all the law on a particular matter could be found in oneplace. The Commission is continuing its work on codifying the criminal law bydegrees. It has emphasised the need for the criminal law to be 'more accessibleand comprehensible to ordinary people'. The Commission is currently working onthe sentencing powers of courts. However, there are difficulties associated withcodification apart from the practical implications of codifying vast areas ofthe common law. For example: all earlier cases would not be good law; the codeitself would need to be interpreted and until this was done, the law would beuncertain; if the code did not cover a particular matter, the courts would haveto create a precedent; the code would eventually become outdated and have to bereplaced.
There are also problems concerned with the type of code to be chosen. Wouldit, eg, be a very detailed one like the German Civil Code with 2,385 sections,or like the French "Code Civil" which sets out basic principles,leaving the courts to fill in the details? A detailed code is more certain butless flexible. The idea of a code is alien to the common law system, although inparts it has been codified, eg, the Sale of Goods Act.
A MINISTER OF JUSTICE
The Haldane Committee in 1918 suggested a Minister of Justice in charge ofthe legal system. The present system divides responsibility between the HomeSecretary and the Lord Chancellor and other Government departments, eg, theDepartment of Trade is in control of consumer protection. It is said that such aMinistry would have better control over law reform.
EVALUATION OF PRESENT POSITION ON LAW REFORM
The Law Commission has made progress in some areas, eg, it has achieved therepeal of outdated laws and it has made innovations like the preparation ofdraft bills containing reform measures, to save Parliament time. The success ofLaw Commission recommendations for reform has varied over the years of itsexistence, but the overall success rate for implementation of the Commission'sreports is 70 per cent. Since 1984, 45 reports have been implemented, and at theend of 1997 22 reports were outstanding. Recent successes have included theFamily Law Act 1996, the Trusts of Land and Appointment of Trustees Act 1996 andthe Land Registration Act 1997. A recent report published in 1978, Report onInterest, recommended that a creditor should have an automatic right to intereston unpaid debts, and the Late Payment of Commercial Debts (Interests) Bill isbefore Parliament.
This success rate may in part be due to gaining support for law reformmeasures from all political parties. New parliamentary procedures have alsohelped. Under one procedure, after the second reading in the House of Lords aBill can go to a Special Public Bill Committee, which can hear written and oralevidence. This allows technical Bills, such as those produced by the Commission,to be given expert scrutiny without taking up time on the floor. Thesecommittees are known as 'Jellicoe Committees'. A second change in procedureallows a public Bill to be automatically referred to a Second Reading Committeeif the Bill is to give effect to a Law Commission report.
The system of programmes for reform has not been consistent, with a 16-yeargap between the third and fourth programmes. Problems have arisen with theschemes for the codification of certain areas of law.
In spite of the difficulties the Commission has faced, in its Sixth Programmeof Law Reform (No 234), published in June 1995, it set out the advantages ofhaving a Commission as having independence of the Government, a single purposeof law reform and expertise developed over 30 years.
The general public now demand that the law should be clear, accessible to alland cheap to use. In the face of these demands the work of the Commission shouldbe given a higher priority and more resources should be allocated to it. Inspite of recent successes, it must be remembered that implementation of itsreforms is still very much in the hands of the Government. Although the LawCommission is developing initiatives for working closer with the Government andhas set targets for achieving quicker responses from the Government to itsreports, this is at a time when funding has been cut and the Commission has hadto reduce the number of free consultation papers it distributes.
Notes adapted from: T. Blakemore & B. Greene, Law for LegalExecutives,Second Edition, 1998.