Law Reform

An effective legal system cannot stand still. The laws we live by must adapt to social changes if they are to retain the respect of the society within which they operate. It is therefore important to keep the law under constant review to ensure it is reformed when necessary and kept in an accessible and manageable state.

There are many influences on the way our laws are formed and reformed. Some are more effective than others and in some situations there may be competing interests in the way that the law should be reformed.

The Government of the day effectively has the major say in what laws will be enacted. Their proposals will be set out in their election manifesto (when campaigning for votes) and then (when in power) announced each year at the opening of each new session of Parliament in the Queen’s speech. 

However much of this will be concerned with more politically motivated areas, such as education, health and foreign policy rather than ‘pure law reform’. In addition, Acts of Parliament can actually lead to more confusion and complication, such as the Dangerous Dogs Act 1991. This is especially true where one Act is used to amend another so that the law is contained in multiple Acts.

PUBLIC OPINION: 

Where there is strong public opinion about a change in the law, the Government may bow to such pressure. This often happens towards the end of a term of Government when a general election is looming and the Government wants to remain popular with the voters.

The unelected judiciary sometimes have to decide a new point of law not covered by legislation and thus reform the law. This effectively allows them to ‘make’ law (but consider Montesquieu’s separation of powers theory).

Decisions over the years have added to the tort of negligence created in Donoghue v Stevenson [1932] which allows people to claim compensation when they have been injured by another person’s negligence in the absence of a contractual relationship.

A landmark decision also came in R v R [1991] when courts ruled that a man could be guilty of ****** his wife contrary to the previously held notion that “by marrying a man, a woman consents to sexual intercourse with him – and may not retract that consent.”

However, major reforms like this are rarely produced by the courts and so judicial reform does not represent an adequate method for reform alone because courts can only deal with cases that are before them. Judicial reform therefore proceeds, not on the basis of which areas need changes, but on a haphazard presentation of cases as it is reactive only.

MEDIA: The media often play a large role in bringing public opinion to the Government’s attention. Where issues are given a high profile on TV and in newspapers, it brings it to the attention of other members of the public and therefore adds weight to the shared opinion. The media can be a very powerful force; media pressure helped secure a judicial inquiry (Macpherson report) into the racially motivated killing of Stephen Lawrence. Public opinion and the media interact; the media often claiming to reflect public opinion, but sometimes it can actually ‘whip it up’ and manipulate the news in order to ‘create’ public opinion.

In 2000, following the murder of Sarah Payne by known sex offender Roy Whiting, there was a high profile campaign by the News of the World to ‘Name and Shame’ **********s. This led to angry mobs terrorising those they suspected of being child sex offenders, which included several cases of mistaken identity, including one instance where a paediatrician had her house vandalised and another where a man was confronted because he had a neck brace similar to one a ********** was wearing when pictured.

The aim of the campaign was for the government to allow controlled access to the Sex Offenders Register so parents could know if a child sex offender was living in their area. This scheme was introduced in four pilot areas of England and Wales in September 2008 and has rolled out to other areas in the years since.

Pressure groups can ‘encourage’ the Government to consider issues and often have an influence during the consultation stage of the legislative process. For instance, in 2004 the Hunting Act was passed which banned hunting foxes with dogs. Two pressure groups went head to head: League against Cruel Sports wanted fox hunting banned, whilst Countryside Alliance wanted it to be allowed to continue.

JUSTICE: A human rights organisation working to improve the legal system and the quality of justice. They were instrumental in the passing of the HRA 1998 and have been heavily involved in many high profile cases, such as Diane Pretty and in the high profile case of the Birmingham Six and intervened in A and others [2004].

LIBERTY: uses a variety of tactics, including lobbying MPs, gaining media publicity, petitions, encourage individuals to write to their local MPs etc.

Fathers 4 Justice:  They feel that fathers are not treated with the same equality as mothers, and wish for the law to be reformed. They have not been successful yet in bringing about any change, they have had an enormous impact in terms of the awareness that has been generated by some outrageous stunts.

Friends of the Earth: An environmental pressure group whose main aims are to encourage people to be more ‘green’, and improving the environment generally. They were responsible for the Household Waste Recycling Act 2003 which made doorstep recycling a reality.

Some pressure groups are more effective than others, depending on their size and persistence. A pressure group can even succeed with just one member, as MARY WHITEHOUSE who almost singlehandedly pressurised the Government to create the Protection of Children Act 1978 which sought to prevent child ***********.

Pressure groups made up of ordinary individuals can have an overwhelming impact. This was seen in the SNOWDROP CAMPAIGN following the shooting of 16 children and their teacher in Dunblane, Scotland. Following the SNOWDROP CAMPAIGN, consisting of a petition with more than 705,000 signatures, the Conservative Government proposed changes to gun ownership laws and introduced the Firearms (Amendment) Act 1997 which meant that all handguns could no longer be bought, sold or possessed in Britain. When the Labour Government took power later that year, further legislation was proposed to declare all hand guns illegal.

The problem with the mentioned methods of law reform is that they do not look at the law as a whole and so cannot ensure that laws develop in an organised and controlled way.

• The government has a political agenda and so might be less interested in ‘pure law’ reform.
• Judges can only deal with the particular question of law in the case before them, not wider reforms.
• Public opinion may not always be based on accurate information, and will often only focus on topics capable of grabbing attention, not the more technical areas of law.
• Pressure groups are generally only concerned with their specific narrow aim.

Therefore, an INDEPENDENT BODY was needed that could supervise the systematic development and reform of the law. This need was recognised by Lord Chancellor: “One of the hallmarks of an advanced society is that its laws should not only be just but also that they be kept up to date and be readily accessible to all who are affected by them...”

This passage from a government white paper led to the introduction of the independent Law Commission by virtue of the Law Commission Act 1965.

Set up by the Law Commission Act 1965 that consists of a chairman and 4 other Law Commissioners. Each Commissioner is appointed for a 5 year period and is responsible for a different area of the law. Commissioners are drawn from both the senior ranks of the legal profession and the academic world, except for the chairman who must be a High Court/Court of Appeal judge. Support staff assist with research and parliamentary draftsmen help with the drafting of proposed Bills. It will consider any area of law believed to be in need of reform. s.3 Law Commission Act 1965 outlines their basic role, which is:

• To codify the law
• Simplify and modernise the law
• Remove anomalies in the law,
• repeal obsolete and unnecessary legislation.

Topics may be referred to it by the Lord Chancellor on behalf of the Government (reactive) or it may select areas in need of reform, approach the Government for their approval, then draft a report on it (proactive). It will research the area and publish a consultation paper seeking views on possible reforms. Following any responses, the Commission will then draw up proposals for reform which will be presented in a report which often includes a draft Bill.It will then pass through the legislative process where it may may be altered.

CODIFICATION:

This involves bringing together all the law on a topic into one source of law. The Law Commission approaches this in a ‘building block’ manner, codifying small sections of law rather than tackling huge areas. Those in favour of codification say that it increases accessibility, consistency and certainty as the law is contained in one place. Opponents argue that a very detailed code could make the law too rigid.

REPEAL:

There are many very old and sometimes ridiculous statutes still on the statute book, but which have long since ceased to have relevance. To remedy this problem, Law Commission prepares a STATUTE LAW (REPEALS) BILL for Parliament to pass.

The Statute Law Repeals Act 1995 repealed (cancelled) 223 Acts and redundant parts of 259 others. Since 1965, 18 such Bills had been enacted leading to the repeal of over 2,500 obsolete laws. This ‘tidying up’ helps make our laws more cohesive (unified) and more accessible.

CONSOLIDATION:

This brings together statutes that individually cover smaller parts of a larger law. The aim is to draw all existing provisions together into one single Act to make the law more accessible, rather than having to check several Acts to get an up to date idea of what the law is. For example, before 2000, the law on sentencing offenders under 17 had been amended ten times and it was necessary to consult each of these alterations to get an overall view of the law. Much of the law on sentencing was consolidated in the Powers of the Criminal Courts (Sentencing) Act 2000.

The Law Commission produces around 5 Consolidation Bills each year but the need to consolidate quickly comes around. For instance, only months after the Powers of the Criminal Courts (Sentencing) Act 2000, Parliament then passed the Criminal Justice and Court Services Act 2000 altering some of the available sentences and creating new ones. Then the Criminal Justice Act 2003 changed much of the sentencing law again!

In its first 10 years, the Law Commission had a high success rate with around 85% of its proposals being made law by Parliament. In the next 10 years, this fell to around 50% due mostly to a lack of Parliamentary time. All time low came in 1990 when not one of its reforms was successful. By 1992, there was a backlog of 36 Bills which Parliament had failed to consider.

Matters have improved in recent years with more reforms being enacted, including the Land Registration Act 2002 which simplified registering ownership for anyone buying or selling a house, flat or any building or land.

In 2006 the Law Commission produced an enormous review of the law relating to murder and manslaughter but the government only implemented reforms in relation to two defences to murder: provocation and diminished responsibility (in the Coroners and Justice Act 2009).

However, full successes were seen in their reports on the year and a day rule in relation to murder and manslaughter (abolished by the Law Reform (Year and a Day Rule) Act 1996), and in relation to double jeopardy (amended by the Criminal Justice Act 2003).

The reform of the criminal law is the biggest unresolved problem. The Law Commission and 3 leading academics produced a draft Criminal Code in 1985 but it was not considered by Parliament. It was then broken down into 3 manageable sections, each presented to Parliament in separate draft Bills but Parliament again failed to find the time to debate the proposals. By 2008, the Law Commission announced that it would no longer seek to codify the criminal law and would instead focus on reforming specific areas. Lord Scarman (the first Chairman of the Commission) has said that:

“Parliament, in matters of law reform, is an extremely amateur and indolent body."

The Law Commission can only be effective if the Government and Parliament are prepared to find time to enact reform. Some commentators refer to 1990 – 2000 as being a lost decade of law reform for the criminal law.

The greatest criticism relating to the Law Commission, therefore, centres on the implementation of their reforms, rather than their quality. This is in part due to the priority given to legislation implementing government policy rather than pure law reform, and the fact that each piece of legislation is more detailed now than in 1965. 

To aid matters, the Law Commission Act 2009 introduced a “new protocol” which firstly creates a duty on the Lord Chancellor to report annually to Parliament on the implementation of Law Commission proposals and secondly places a duty on government departments to ensure that they provide a response within 6 months of a Law Commission proposal and a full response within a year in an attempt to promote greater cooperation between ministers, government departments and the Commission to ultimately increase the number of proposals being implemented.

In summary, the Law Commission is successful. Costing a mere £4 million annually, it remains as important today as it was when first created in 1965.

“It is probably true to say that, outside of Parliament itself and the Government Departments, no body has had greater impact on the law and the lives of our citizens than the Law Commission since 1965.”

Sir Terence Etherington, former Chairman, 2007.

1. ROYAL COMMISSIONS:

These are temporary committees set up by the Government to investigate and report on a specific area of law, usually as a result of criticism. People with expertise in the area being consulted on will make up the Committee. Once they have completed their task and reported on the issue the Commission is disbanded. Royal Commissions were used frequently during 1945 – 1979. During Margaret Thatcher’s reign however, none were set up, but the 1990s saw a return of the Royal Commissions. Some Royal Commissions have led to very important changes in the law, e.g. Royal Commission on Police Procedure (Phillips Commission) reported in 1981 and many of its recommendations were given effect by Police and Criminal Evidence Act 1984 (PACE). Another example is the Wakeham Commission of 1999 which considered how membership of the HL could be reformed (abolishing right of hereditary peers to sit in HL etc.).

2. REVIEWS BY JUDGES:

An individual judge may be asked to lead an investigation into technical areas of law and make proposals for reform. A key example is the WOOLF REPORT “Access to Justice” on the civil courts system and led to major changes to the civil justice system in 1999.

3. OTHER REVIEWS:

As well as judges, the Government has asked business people to review the workings of some areas of the justice system, e.g. SIR DAVID CLEMENTI was asked to report on the legal profession. This report led to the Legal Services Act 2007.

4. PUBLIC INQUIRIES:

Public inquiries may be held following high profile ‘disasters’. These are one off temporary committees that investigate and examine possible options for dealing with the crisis. For example an inquiry was set up following the horrific child abuse and murder of Victoria Climbie, and following the fatal shooting of Jean Charles de Menezes. Another example was the Hutton Inquiry into the suicide of Dr David Kelly.