Law Reform

Question 1

Law reform

Answer 1

Law reform is the process of examining existing laws, and advocating and implementing changes in a legal system, usually with the aim of enhancing justice or efficiency.

Question 2

Judicial change

Answer 2

Judicial change is when courts perform law reform, through cases, by deciding points of law in cases (judicial precedent)

Question 3

Judicial change case that involves law reform

Answer 3

R v R (1991), in which the House of Lords declared that a husband who has sexual intercourse with his wife without her consent may be guilty of rape. Before this decision, the law on rape within marriage was based on an assertion by the eighteenth- century jurist Sir Matthew Hale, that ‘by marrying a man, a woman consents to sexual intercourse with him, and may not retract that consent ’In 1976, Parliament considered it during a debate on the Sexual Offences Act, but decided not to make changes at that time, and it was not until 1991 that the Court of Appeal and then the House of Lords held that rape within marriage should be considered an offence.

Question 4

Judicial change case that involves law reform part 2

Answer 4

R v Ireland and Burstow [1997] 3 WLR 534, psychological illness suffered by victims of the defendant’s harassment and intimidation would not have amounted to bodily harm. The House of Lords felt that the old Act had to be reinterpreted for modern times.

Question 5

Reform by Parliament The majority of law reform is therefore carried out by Parliament. It is done in four
ways:

Answer 5

Repeal.
Creation.
Consolidation.
Codification.

Question 6

Repeal

Answer 6

Repeal of old and/or obsolete laws.

Question 7

Creation

Answer 7

to create a completely new law or adapt an existing one to meet the needs of society.

Question 8

Consolidation.

Answer 8

When a new statute is created, problems with it may become apparent over time, in which case further legislation may be enacted to amend it. Consolidation brings together successive statutes on a particular subject and puts them into one statute.

Question 9

Codification.

Answer 9

where a new statute may be created to bring together all of the rules on that subject, case law and statute law, into one place

Question 10

what are the disadvantages of judges setting judicial precedent?

Answer 10

• judges are not elected, but they are clearly making law.
• they’re difficult to remove from office so they lack public accountability.
• they have to wait for a case to come up before they can change the law.
• they can’t consult an expert before they change the law, unlike Parliament

Question 11

Pressures for reform

Answer 11

The inspiration for reform may come from a variety of sources, alone or in combination. As well as encouraging Parliament to consider particular issues in the first place, they may have an influence during the consultation stage of legislation.

Question 12

Pressures for reform list

Answer 12

Pressure groups, Political parties, The civil service, Treaty obligations and Public opinion and media pressure

Question 13

Pressure groups,

Answer 13

Groups concerned with particular subjects may press for law reform in those areas. JUSTICE is a pressure group specifically concerned with promoting law reform in general. The anti-porn campaigner Mary Whitehouse almost single-handedly pressurized the Government to create the Protection of Children Act 1978, which sought to prevent child pornography.

Question 14

Public opinion and media pressure

Answer 14

As well as taking part in campaigns organized by pressure groups, members of the public make their feelings known by writing to their MPs, to Ministers and to newspapers. This
is most likely to lead to reform where the ruling party has small majority. The media can also be a very powerful force for law reform, by highlighting issues of concern. In 1997, media pressure helped secure a judicial inquiry into the racially motivated killing of South London teenager Stephen Lawrence.

Question 15

Agencies of law reform

Answer 15

The Law Commission, Royal Commissions and Public inquiries

Question 16

The Law Commission creation and personnel

Answer 16

Established in 1965,the Law Commission is a permanent
body, comprising five people drawn from the judiciary, the legal profession and legal academics. In practice, the chairman tends to be a High Court judge, and the other four members to include a QC experienced in criminal law, a solicitor with experience of land law and equity, and two legal academics. They are assisted by legally qualified civil servants.

Question 17

Under the Law Commissions Act 1965, the Law Commission’s task is

Answer 17

● codify the law;
● remove anomalies in the law;
● repeal obsolete and unnecessary legislation;
● consolidate the law; and
● simplify and modernize the law.

Question 18

4 main teams of the Law commissions

Answer 18

Criminal Law and Evidence;
Public Law;
Property and Trust Law; and
Commercial Law and Common Law.

Question 19

Process of reform

Answer 19

1. LC decided remit of project, investigates the issues and identifies defect
2. Research areas with experts in the field as well as those the law in that area will affect
3. Then publish a ‘Scoping Paper’ that investigates the issue
4. Then produce a ‘Consultation Document’ that explains the findings of the previous papers and outlines their recommendations
5. Then produce ‘Draft Proposal’ which is sent to parliament for discussion. If parliament accept the proposal, then it goes through legislative process

Question 20

Changes the law commission made

Answer 20

1 Contract law by recommending control of exclusion clauses which led to the passing of the Unfair Contract Terms Act 1977.
2Criminal Law: Conspiracy and Criminal Law Reform (1976), helped shape the Criminal
Law Act 1977
3 Its working paper, Offences Against Public Order (1982), was instrumental in creating the Public Order Act 1986.
4 The Computer Misuse Act 1990 introduced new criminal offences relating to the misuse of computers;
5 The Family Law Act 1996 changed the law on domestic violence and divorce.
6The Fraud Act 2006 which reformed the law on fraud and deception offences

Question 21

Royal Commissions

Answer 21

Royal Commissions are ad hoc (not permanent; set up for one task and then disbanded) advisory committees established by the government – though formally appointed by the Crown (hence ‘Royal’) to investigate a matter of public concern and make recommendations on any actions to be taken in connection with it, including changes in the law. A government is not, however, bound to accept the advice of any Royal Commission. Lord Runciman, which reported in 1993. Royal Commission reports are often referred to by the name of the Chairman; so we refer to this report as the Runciman Report.

Question 22

Royal Commissions effectiveness

Answer 22

The most successful action done by the Royal commission in recent years has been the Royal commission on Assizes and Quatar Sessions, which was reported in 1969. The Royal commission proposals for the reorganization of criminal courts were speedily implemented. Some of its recommendations were introduced in the Criminal Justice and Public Order Act 1994 and the Criminal Appeal Act 1995, which created the Criminal Cases Review Commission in response to the Commission’s criticism of the criminal appeals system

Question 23

Public inquiries

Answer 23

Where a particular problem or incident is causing social concern, the Government may
set up a one­off, temporary committee to examine possible options for dealing with it.
Major disasters, such as the Hillsborough football stadium disaster,Shipman. These
inquiries usually comprise individuals who are independent of Government, often with
expertise in the particular area. Academics are frequent choices, as are judges – Lord
Scarman headed the inquiry into the Brixton riots and Lord Hutton (2004) headed
the inquiry into the suicide of Dr David Kelly following the war in Iraq.

Question 24

Public inquiries, Effectiveness

Answer 24

Lord Scarman’s investigation into the Brixton riots is seen as a particularly effective public inquiry, getting to the root of the problem by going out to ask the people involved what caused it (his Lordship, then retired, shocked his previous colleagues by taking to the streets of Brixton and being shown on television chatting to residents and cuddling their babies). His proposals produced some of the steps towards police accountability in PACE. Public inquiries are often set up after a major disaster or matter of controversy, where
there is suspicion on the part of the community involved. For example, an inquiry was
set up after Harold Shipman was convicted of murdering a large number of his elderly
patients. People demanding an inquiry are usually looking for an independent and open
examination of the facts to determine what exactly happened and to prevent this happening again.

Question 25

Other temporary inquiries

Answer 25

From time to time, various Government departments set up temporary projects to investigate specific areas of law. One of the most important examples is the inquiry by Lord Woolf into the Civil Justice System (p. 567 ).

Question 26

Other temporary inquiries( Effectiveness )

Answer 26

The Civil Justice
Review was also instrumental in bringing about reform, though views on the success of
the changes are mixed and the area has subsequently been tackled again by Lord Woolf.

Question 27

Problems with law reform agencies

Answer 27

Political difficulties
Lack of influence on results
Too much compromise
Influence of the legal profession
Waste of expertise
Lack of ministerial involvement