Module 6 - Law reform (C7)

Question 1

When was the Law Commission established?

Answer 1

1965

Question 2

What does the Law Commission do?

Answer 2

Considers areas of law which are believed to be in need of reform
> Law Commission researches the area of law and then published a consultation paper seeking views on possible reform

Question 3

How are topics selected at the Law Commission?

Answer 3

Topics may be referred by the Lord Chancellor on behalf of the government or it may itself select areas in need of reform and seek governmental approval to draft a report on them.

Question 4

What is the Lord Chancellor?

Answer 4

A government minister responsible for overseeing the efficient functioning and independence of the courts.

Question 5

What is reform?

Answer 5

The process of updating or changing the law to make it fairer, clearer, or more relevant to current society.

Question 6

What is the consultation paper, and what does the Law Commission do after the paper?

Answer 6

The consultation paper describes the current law, sets out the problems and looks at options for reform.
> After the consultation paper, the law commission will draw up positive proposals for reforms, presented in a report

Question 7

What other types of reports does the Law Commission do?

Answer 7

Public inquiries (one-off temporary committes)

Question 8

What are five examples of public inquiries that the Law Commission did/does?

Answer 8

Hillsborough
Stephen Lawrence
Harold Shipman
Railway accidents
Test-tube babies

Question 9

What is the structure of the Law Commission?

Answer 9

Made up of;
- A chairman (Court of Appeal judge appointed for up to three years)
- Four commissioners (appointed by LC and Secretary for Justice)
- Members of the Government Legal Service
- Two parliamentary counsel
- Law graduates working as research assistants

Question 10

What are the advantages of the Law Commission?

Answer 10

• Areas of law are researched by experts
• Law Commission consults before finalising its proposals
• Whole areas of law can be considered
• Law is in one Act if enacted; easier to understand (i.e. Fraud Act 2006, Contract Act 1999, Land Registration Act 2002)

Question 11

What are the disadvantages of the Law Commission?

Answer 11

• The government is often slow to enact reform
  > Limited time for reform; other matters like budget, tax, war, health
• Areas of law which may need reform can be ignored by the government (i.e. OAPA 1861; Law Commission issued a report yet the government has never proceeded with the bill)
  > Law Commission is only effective if Parliament finds the time

Question 11

What are three Acts which the Law Commission have written reports on, making the law easier to understand (within one Act)?

Answer 11

Fraud Act 2006
Contract Act 1999
Land Registration Act 2002

Question 12

What is the problem with the Offences Against The Person (OAPA) Act 1861?

Answer 12

• Law Commission drafted a report on the OAPA 1861, yet the government have not yet proceeded with the bill
  > Extremely outdated
  > Clearly shows the weakness of law reform agencies; only effective if Parliament finds the time

Question 13

What are the problems with law reform agencies?

Answer 13

• Very little power
  > No obligation for the government to follow proposals and recommendations
  > Little influence over how proposals are put into practice
• Agencies tend to compromise too much
• Waste of expertise; play no further role in the law-making process once disbanded
• No single government ministry for law reform

Question 14

What is consolidation?

Answer 14

Combining all statutory provisions in a particular area into one Act of Parliament to simplify the law.

Question 15

What does it mean to ‘repeal’?

Answer 15

The process of removing or revoking an existing law so that it no longer has legal effect.

Question 16

What is a public inquiry?

Answer 16

A temporary investigation set up to examine major issues of public concern, such as disasters or miscarriages of justice.

Question 17

What is the 1966 Practice Statement?

Answer 17

A statement issued in 1966 allowing the House of Lords (now the Supreme Court) to depart from its own previous decisions “where it appears right to do so.”

Question 18

Before the 1966 Practice Statement, what case served what purpose in the House of Lords?

Answer 18

As held in London Tramway v LCC (1898), the House of Lords was bound by its own previous decisions.

Question 19

What did the Law Lords think about the Lords being bound by previous decisions?

Answer 19

Lords believed that “too rigid adherence to precedent may lead to injustice… and also unduly restrict the proper development of the law”

Question 20

What are the problems with the 1966 Practice Statement?

Answer 20

• There is a reluctance to use the power; therefore, not often used
• Power only applies to the Supreme Court and Court of Appeal; lower courts are technically bound by their own decisions
• Constitutional role of the judge is not to make law; must be careful
• Phrase “when it appears right to do so” is vague; little guidance on what this actually means

Question 21

What are five civil cases in which the 1966 Practice Statement was used?

Answer 21

Conway (1968)
Herrington (1972)
Jones (1972)
Knuller v DPP (1973)
Pepper v Hart (1993)

Question 21

What happened in Conway (1968)?

Answer 21

Used the Practice Statement to overrule, but only on a technical point

Question 22

What happened in Herrington (1972)?

Answer 22

First major use of the Practice Statement
> Departed from Addle (1929); on the basis that social and physical conditions had changed since 1929

Question 23

What happened in Jones (1972)?

Answer 23

Reluctant to use it; four out of the seven judges agreed precedent was wrong but were reluctant; could have departed from Re Dowling (1967)

Question 24

What was the statement made in Knuller v DPP (1973)?

Answer 24

“We must be sure that there is some very good reason before we act”

Question 25

What happened in Pepper v Hart (1993)?

Answer 25

Most famous use
> Overruled a previous ban on the use of Hansard in statutory interpretation

Question 26

What are two criminal cases in which the 1966 Practice Statement was used?

Answer 26

R v Shivpuri (1986)
C v DPP (1995)

Question 27

What happened in R v Shivpuri (1986)?

Answer 27

Departed from Anderton v Ryan (1985)
> Recognised the most important thing is to make the law right; understood errors can be made

Question 28

What happened in C v DPP (1995), in the High Court?

Answer 28

Under common law, a defendant aged between 10-14 could only be liable in criminal law if the prosecution could prove the child knew what they were doing was seriously wrong
> In the High Court, an appeal was launched on the basis that they could not change the law as they were bound by precedent

Question 29

What was the outcome of C v DPP (1995) in the House of Lords?

Answer 29

In the House of Lords, it was considered whether it was right to use the Practice Statement; decided it would not be appropriate; Lord Lowry issued important guidelines on its use

Question 30

What were Lord Lowry’s five guidelines?

Answer 30

1. Where the solution is doubtful, judges should be wary of imposing their own remedy.
2. Where Parliament has rejected opportunities to legislate, judges should be cautious.
3. Disputed matters of social policy are less suitable for judicial law making.
4. Fundamental legal doctrines should not be lightly set aside.
5. Judges should not change the law unless they can achieve finality and certainty on the issue.

Question 31

What did Young (1944) establish in the Court of Appeal?

Answer 31

Establishes that the CoA is bound by the decisions of the SC/HoL, but it is also bound by its own decisions except in limited circumstances set out in Young;

Question 32

What are the limited circumstances in which the Court of Appeal is not bound by its own decisions in both civil and criminal proceedings?

Answer 32

• Where there are two conflicting previous decisions
• Where a previous decision has been overturned by a later HoL/SC decision
• Where the previous decision was ‘per incuriam’ (wrongly decided)

Question 33

What is the additional limited circumstance in which the Court of Appeal is not bound by its own decision in criminal proceedings?

Answer 33

Where the law was misapplied/misunderstood resulting in a conviction (i.e. in R v Taylor (1950))

Question 34

Why is there a further limited circumstance in which the Court of Appeal is not bound by its own decision in the criminal court?

Answer 34

Extra flexibility is allowed due to the fact that they are dealing with the liberty of a citizen

Question 35

What is a remedy?

Answer 35

A legal solution or enforcement provided by the court to resolve a breach of rights or address a legal wrong

Question 36

What is common law?

Answer 36

Law developed by judges through decisions in court cases, forming precedent.

Question 37

What is precedent?

Answer 37

A legal principle established in a previous case that must be followed by courts in future cases with similar facts.

Question 38

What is a short definition for the Law Commission?

Answer 38

An independent body established in 1965 to review and recommend reforms to improve, simplify or modernise the law.