Law Reform Flashcards
Reasons For Law Reform
- Mistakes In The Law
- Events e.g. 9/11 Terrorism Act 2001
- Changing Social Circumstance e.g. Herrington Case (Practice Statement).
- Confusion In The Law That Needs To Be Clearer
Methods Of Law Reform
Political Parties
Current Government will have their own agenda for Law Reform, called a Manifesto. This outlines their political agenda, which they spend the majority of their time in Parliament implementing.
Private Members Bills-
These are prepared by an individual MP, possibly with the backing of a Reform Body. The MP then argues for Parliamentary time. These Bills are rarely successful but can be very significant e.g. abolishment of the year and a day rule in the Law Reform (Year and a Day Rule) Act 1996.
Royal Commissions or Government Committees
Temporary Committees, set up at the request of Government, to investigate and report on a specific area of the Law. Gov. often ask a Judge to lead the Committee and it is then known by the Judge’s name e.g. Phillips Commission. Royal Commissions have led to important changes in the Law e.g. Royal Commission of Police Procedure led to Police and Criminal Evidence Act 1984. Once any reports are done, the Commissions/Committees disband.
Judicial Influence On Law Reform
Case Law can create Law Reform e.g. Declaratory Theory used in Donoghue v Stevenson. or Herrington v British Railway.
This is rare because:
-Courts can only deal with cases brought to them.
-Judges are unable to consult experts or commission research.
-Judges are unable to make change where the Doctrine of Precedent applies.
-Judge made law is Retrospective.
-Judges are unelected, don’t have position in society to Reform Law.
Law Reform Bodies:
History
History
There has always been the need for a supervisory reform body. In 1616 Lord C’s called for commissioners to suggest reform. Law Reform, though, didn’t start until the 19th Century.
1934-
Law Revision Committee created. Described as ‘source of the modern machinery of Law reform’. Only existed until WW2 started in 1939.
1952-
Law Reform Committee created. Focused on Civil Law rather than Criminal. Acts such as Occupiers Liability Act 1957 and Civil Evidence Act 1968 were passed because of their recommendations. It was shut down in 2005.
1957-
Criminal Law Revision Committee set up. Produced 18 reports before it was disbanded. One important achievement was the Theft Act 1968, which codified law and is still used today. Disbanded in 1986.
1965 Law Commission Created
Law Commissions Act 1965 set up 2 Commissions; a joint English-Welsh one and a Scottish one.Section 3 in the Act says “It shall be the duty of..the commissions..to keep under review all the law..with a view to it systematic development and reform..”.
Law Reform Bodies:
1965 Law Commission
2nd Law Commission Act in 2009
Made the Law Commission (LC) more powerful and influential. Now:
- Lord C must make a statement to HoC every year on whether LC reports are being implemented and why/why not.
- Chairman of LC is automatically promoted to a CoA judge because they have more status and influence.
There are 5 Commissioners including the Chairman. They are appointed on a full time basis but can undertake other work e.g. Judicial Training. Chairman is appointed for up to 3 years, they can then go back to being a Commissioner, who are appointed for 5 years. Commissioners are supported by 20 members of Gov. Legal Service, 2 Parliamentary Counsel and many research assistants.
Law Commission's Role To Recommend:
- New Laws Where Necessary.
- Repeal of Obsolete/Unnecessary Acts.
- Codification of Law.
- Interpretation of Wording of Acts.
- Finding Anomalies in Statutes.
- Reduction of Number of Acts on a Specific Subject.
How Does The LC Work?
Reform Projects are referred by the Lord C on behalf of Gov. However, LC cannot be forced to investigate because they are an independent body. They can also investigate anything else they think needs reform, with Gov. Permission (which is never usually refused).
Each of 5 commissioners has a different area of expertise. They choose laws they want to investigate and organise a team. The team may publish a Consultation Paper asking for opinions on possible reform. The paper will detail the current law, the problems and options for reform.
Following the response from the Consultation Paper, the team will draw up a proposal for reform. The Commissioner heading the team will report to the relevant Minister, who can take the reform to Court. Draft Bills will often be attached to Proposals so Ministers don’t have to do any work. They also don’t necessarily have to present it to Parliament.
Jellicoe Committees
Civil Bills
After 2nd reading at HoC/HoL, a Bill can go to a Special Public Bill Committee. This Committee can hear written and oral evidence on the content within the Bill. This allows non-controversial, technical Bills to be given expert scrutiny without taking up Parliamentary time. These Committees are known as Jellicoe Committees.
How Is Law Reform Made?
Repeal-
Law Commission have found 19 Acts to do with repealing old laws that are no longer in use. Statute Law (Repeals) Act 2013 is the largest statute law repeals act LC has ever produced. It contains repeals for 817 whole Acts and partial repeals for 50 other Acts.E.g. of Repealed Law: 1679 Act to run a workhouse in Exeter.
Consolidation-
LC suggest Parliament brings together all existing legislation on a certain topic, into a singular Act. Law is unchanged but easier to find. E.g. Equality Act 2010.
Codification-
LC suggest Law on specific area is written as a ‘code’ in one massive book. Every word should be interpreted and explained. LC goal to codify Criminal Law and they published Draft Criminal Code in 1989. Code never got to Parliament and they gave up pushing it forward in 2008. One e.g. of Act that has been codified is parts of the Theft Act 1968 & the Fraud Act 2006
Success of Law Commission
1965-1975:
Initially Successful. 1st reforms implemented within average of 2 years. These included Occupiers Liability Act 1984 & Unfair Contract Terms Act 1977. 85% success rate for reforms being enacted.
1975-1990:
Parliament lost interest in Reform.Only 50% proposals inacted. In 1990, no Reforms were enacted. Government didn’t respond to many proposals for Criminal Law Reform.
1991-2005:
In 1992, backlog of 36 Bills waiting to be introduced to Parliament. In 1999, backlog had increased to 102. 2001-2005 LC published 20 reports; 35% accepted and implemented, 25% accepted but not implemented, 20% await response. From 1996-2000, 47% reports not rejected but not implemented either.
2006:
Only one report enacted, although it was a major Reform. The Fraud Act 2006, consolidated all of the Law relating to Fraud into one Act.
Response to Lack of Success Before 2009 Act
Ways Government tried to improve LC success rate:
1994- Jellicoe Procedure
Success. Improved rate of passing Civil Law, Non-Contreversial Bills. 13 passed between 1994-1995.
2000- Ministerial Committee for the LC
Unsuccessful. Lord C (Lord Irvine) created Committee to promote LC as a ‘Resource within Government’. Advised Lord C to accept LC proposals for 3 yearly programmes of Reform (meetings about Reform). Only 3 people attended.
2001- Regulatory Reform Act 2001
Unsuccessful. Clause allowed certain Reforms to be implemented by a ‘Reform Order’ rather than Act of Parliament. Order written by Minister responsible but still had to be approved by both Houses of Parliament. HoL had it removed because they were unhappy with lack of scrutiny available.
2003- Halliday Report
Unsuccessful. Report recommended Protocol. It said departments should aim to respond to reports within 6 months and must declare within 2.5 years wether they intend to implement them. No one read it.
Has Law Commission Act 2009 improved success?
Since LC Act 2009 was passed, there have been 3 reports made by the Lord C; which state Acts cited as successful implementations of LC Reports:
2011 Report:
- Coroners and Justice Act 2009
- Bribery Act 2010
- Third Parties (Rights Against Insurers) Act 2010
- 20 reports not implemented.
2012 Report:
- Estates of Deceased Persons Act 2011
- This was only Act passed that implemented an LC report.
2013 Report:
No Lc Reports implemented.
Why is it Difficult for LC Reports to Become Law?
Most successful period was 1966-1970, when Lord Gardiner was Lord C. He was passionate about reform. He was also Head of Judiciary so his dual role meant he was more involved with law reform. Constitutional Reform Act 2005 meant Lord C couldn’t be Head of Judiciary because of separation of powers. This means Lord C is just a minister, with reform being a much lower priority.
Parliament also have their own agendas, which means they have their own Laws to implement. They are unable to spend time on reform because they need to make law that will secure votes. Ministers also change departments every few months. However, a Draft Bill can take 3 years to be completed. this means the new Minister might not be interested in the reform by the time the Draft is made.
Use of Law Commission Reports in Court
First use of LC Reports:
Davies v Johnson 1978-
Lord Denning used LC Report on Domestic Violence in his judgement. It was against rules of Precedent and Separation of Powers, because LC Reports were considered Political Documents. However, Denning’s judgement was upheld by the Supreme Court. The SC then set precedent for LC reports to be available for Judges use.
Other Examples of LC Reports use in Court:
R v Stringer and Stringer 2011-
LC Report on ‘Participating in Crime’ used to define “Aiding and Abetting” and was given to a jury. D accused of participating in stabbing and had been convicted of Murder.
R v Inglis 2010-
Tom Inglis suffered catastrophic head injuries when he fell out of Ambulance taking him to hospital. His mother kept trying to kill him by injecting him with heroin. She eventually killed him and the LC Report on ‘Murder, Manslaughter and Infanticide’ was used to define “Mercy Killing”.
Law Commission: Advantages
- Made up of expert Lawyers and headed by CoA Judge. Commissioners change every 5 years so a range of views are brought into Reform process.
- Permanent, full time body that have freedom to investigate anything they this needs Reform.
- Produce Draft Bills ready for Parliament, which reduces workload for Minister.
- Able to undertake extensive research and consultation, so are well informed when recommending Reform.
- 2009 Act gives them more status and makes Government more likely to listen.
- LC Reports are ‘Extrinsic Aids’ which help Judges interpret Statutes.
Law Commission: Disadvantages
- No Gov. Department to implement Reform. LC must rely on Minister.
- Ministers/Parliament often ignore their proposals.
- LC proposals are rarely vote winners and don’t suit political agenda.
- Lc isn’t considered as thorough as a Royal Commission, because LC looks at 20-30 areas of Law at once. RC looks at one.
- By time proposal is complete, interested Minister may have moved to another department.
