Law Reform Flashcards
what are 4 sources of law reform?
government
judiciary
pressure groups
law reform agencies
SOURCE OF LAW REFORM: government
the government has the main say in what laws will be enacted
it will set out its agenda for law reform in each session of parliament
however, most of this reform is politically motivated rather then reforming the law to make it clearer
there is also a lack of parliamentary time for reform of “lawyers law” like criminal and contract law
SOURCES OF LAW REFORM: judiciary
judges play a role in law reform by means of judicial precedent
in some instances they may actually create new law as in R v R (1991) when the courts ruled that a man could be guilty of raping his wife
in some cases the courts may feel unhappy with the decision they have had to come to due to an existing act of parliament or because they are bound by a previous precedent — in this situation, judges may give judgment and draw attention to the need for reform at the same time
SOURCES OF LAW REFORM: pressure groups
pressure groups advocate for social and political change
pressure groups often lobby MPs and campaign for popular support to try and get the law changed
a topic with a high profile will often result in parliament bowing to public opinion and altering the law
SOURCES OF LAW REFORM: law reform agencies
the Law Commission was set up to try to oversee the development of the law in a more controlled way so that it adapts to the changing needs of society
what is the Law Commission?
set up in 1965 by the Law Commissions Act
it is a full time independent body tasked with the systematic development and reform of the law
consists of a chair who is either a high court or an appeal court judge + 4 other commissioners who are also experienced judges, barristers or solicitors
appointed by the Lord Chancellor and Secretary of State for Justice for up to 5 years, their appointments can be extended
commissioners are supported by a Chief Executive and about 20 members of the Government Legal Service, 2 Parliamentary Counsel (who draft bills to reform and consolidate the law) and a number of research assistants
work of the Law Commission
systematically keep all english law under review
receive and consider proposals for law reform and consult relevant parties
put forward proposals for reform for consideration by parliament
repeal out of date and unnecessary statutes
consolidation — combining the law from several acts of parliament into one act to make the law more accessible
codification — bringing together all the law on one topic into one complete code of law to make the law simpler and easier to find
how do the Law Commission carry out their work?
- REFERRAL — topics in need of reform may be referred by the Lord Chancellor on behalf of the government or the Law Commission itself may select areas for reform and seek government approval to draft a report on them
- RESEARCH — researches the area for reform and publishes a consultation paper seeking views on possible changes
- CONSULTATION — a consultation paper will describe the current law, set out the problems with it and look at options for reform
- PROPOSALS FOR REFORM — will be presented in a report which will also set out the research that led to the conclusions, there will often be a draft bill attached to the report
implementation of the law commission’s proposals for reform
the law commission has produced over 300 reports proposing reform of the law in a wide variety of areas
however, in order to be effective, proposals have to be passed as law by parliament
implementation of the law commission’s proposals for reform: success statistics
first 10 years of existence — high success rate, 85% of its proposals were enacted by parliament
next 10 years — only 50% of its proposals became law
1990 — hit an all time low, not one of its proposals was enacted by parliament
this lack of success is due to lack of parliamentary time and an apparent disinterest by parliament in technical law reform
implementation of the law commission’s proposals for reform: measures
measures to ensure that more reforms are implemented:
- Law Commission Act 2009 — amended the 1965 act, places a requirement on the Lord Chancellor to report to parliament annually on the government’s progress in implementing reports
- dedicates parliamentary procedure — to implement Law Commission reports regarded as “uncontraversial”
implementation of the law commission’s proposals for reform: recent successes of the Law Commission
- Coroners and Justice Act 2009 — abolishes the defence to murder of provocation and replaced it with the defence of loss of control
- Criminal Justice and Courts Act 2015 — includes reform of contempt of court by jurors and created new offences of juror misconduct in relation to using the internet
- Consumer Rights Act 2015 — gives consumers the legal right to reject faulty goods and the right to a refund if they act within a reasonable time
5 advantages of reform through the Law Commission
- areas of law are researched by legal experts
- non political
- consults before finalising proposals
- whole areas of law can be considered, not just small issues
- reform can simplify and modernise the law
5 disadvantages of reform through the Law Commission
- government is often slow to enact reforms
- some law commission reports may never be implemented
- lack of parliamentary time and lack of political will for law reform
- changes to a bill as it goes through parliament may mean that the final law is very different to that proposed by the law commission
- its work is affected by staffing and budgetary constraints
