LAW REFORM

Introduction

– An effective legal system cannot stand still. The law as well as legal procedures must adapt to
social change if they are to retain the respect of at least most of the society.
– Many laws which were made even as short time ago as the nineteenth century simply do not fit
the way we see society today-until the early part of this century married women were
considered the property of their husbands!
– The law needs to be kept in an accessible and manageable state and reformed where necessary.
For instance the offence of eavesdropping remained an offence till it was repealed in the
Criminal Law Act 1967.
– The government of the day has a major say in the law and will set out its agenda for law reform
in each session of Parliament. Much of this is concerned with politics. When it is clear that the
law may be out of step with social conditions, there are many ways of bringing about a change.
Judicial change

– Case law can bring about reform. A recent example can be seen in the case R v R .
– In some cases, the courts may feel unhappy with the decision they have come to because of
the clear wording of an Act of Parliament or because they are bound by previous precedent.
The judges may then draw attention to the need for reform when giving their judgment.
– However, courts are not adequate as the sole agency of reform because there is no systematic,
state funded process for bringing points of law in need of reform to the higher courts.
– Secondly, judges have to decide cases on the basis of the way the issues are presented to them
by the parties concerned. They can not commission research or consult with interested bodies
to find out the possible effects of their decision.
– Judicial change is unfair to the losing party since it may have retrospective effect as opposed to
law reforms made by Parliament which are prospective.
Reform by parliament

– It is done in four ways:

– Repeal of old/obsolete laws
– Creation of completely new law or adaptation of existing provisions to meet new needs.
– When a new statute is made, it may need to be amended by another statute because
problems with it will become apparent only with time. Consolidation brings successive
statutes on a particular subject and puts them together into one statute.
– Codification-Where a particular area of the law has developed over time to produce a
large body of case law and statute, a new statute maybe created to bring together all
the rules on that subject in one place. The Police and Criminal Evidence Act 1984 is an
example of a codifying statute.
PRESSURES FOR REFORM

– Pressure groups: Groups concerned with particular subjects may press for law
reform in those areas. Professional organizations such as the law society as well as
certain charities, the British Medical association are some groups concerned with
promoting law reform. Pressure groups use a variety of tactics including lobbying
MPs, gaining as much publicity as possible for their cause, organizing petitions and
encouraging people to write to their own MP or relevant Minister.
– Political parties
– The Civil Service
– Treaty obligations
– Public opinion and Media pressure
LAW REFORM BODIES
1)THE LAW COMISSION
– This is the main law reform body. It was set up in 1965 by the Law Commissions Act.
– It is a full time body and consists of a chairman who is a High Court judge and four other Law
commissioners( one experienced in criminal law, a solicitor experienced in land law and equity
and two legal academics).
– They are assisted by legally qualified civil servants. There is staff to assist with research and four
Parliamentary draftsmen who helps with the drafting of proposed Bills.
– The commission considers areas of law which are believed to be in need of reform. The aims of
the law commission were set out in s 3 of the Law Commission Act 1965 which included the
systematic development and reform including the codification of such law, the elimination of
anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of
separate enactments (consolidation) and generally the simplification and modernization of the
law.
– The Law Commission first researches the area of law in need of reform and then
publishes a consultation paper seeking views on possible reform.
– This consultation paper will describe the current law, set out the problems and
look at options for reform.
– Following the response to the consultation paper, the Commission will then draw
up positive proposals for reform. There will often be a draft Bill attached to a
report which sets out the details to the research.
– It is up to the Government to decide whether it accepts the recommendations
and whether the Bill should be introduced into Parliament. The draft Bill will go
through the necessary Parliamentary stages for approval to become law.
PERFORMANCE OF THE LAW
COMISSION
– The Law Commission prepares a Statute Law (Repeals) Bill in order for old and ridiculous statutes to be
repealed. By 2015, there had been 19 Statute Law (Repeals) Acts. Over 3000 out of date statutes have
been repealed. The ‘tidying-up’ of the statute book helps to make the law more accessible.
– The Commission also produces about five Consolidation Bills each year in order to consolidate areas of
law where there are a number of statutes. However, it is a never ending process because as one area of
the law gets consolidated, another area is being fragmented by further Acts of Parliament.
– The law was consolidated in the Criminal Courts (Sentencing) Act 2000. However, within a few months
the law was changed again by the Criminal Justice and Courts Services Act 2000, which created new
powers of sentencing.
– In 2012, the Legal Aid, Sentencing and Punishment of Offenders Act made further changes in the law on
sentencing. It has now been suggested that there should be a new consolidation Bill for sentencing
Codification

– One of the principal tasks of the commission at its inception was codification.
– When the Law commission was first formed in 1965, an ambitious programme of codification was
announced, aimed at codifying family law, contract law, landlord and tenant laws and the law of
evidence.
– This has not been too successful and soon the Commission abandoned these massive schemes. This
was because draftsmen, judges and legislators were doubtful about the concept of a huge Bill which
would attempt to state the law in a vast area.
– The whole concept of codification is subject to debate. Those in favour of it say that it makes the law
accessible and understandable, gives consistency and certainty. A code allows people to see their
rights and liabilities more easily than a mixture of case law and separate statutes.
– The opposite viewpoint is a detailed code makes the law too rigid, losing the flexibility of the
common law. Also this code would have to be interpreted by the courts which would make it as
uncertain as the existing common law. Creating a whole new body of case law around it would
defeat the purpose of codification (Zander).
– Although the Law Commission has not achieved its original ideas of codification,
it has been successful in dealing with other smaller areas of law.
– The Commission has radically changed contract law by recommending control
of exclusion clauses which led to the enactment of the Unfair Contract Terms
Act 1977.
– Following its recommendations, the Computer Misuse Act 1990 introduced new
criminal offences relating to the misuse of computers. The Family Law Act 1996
changed the law on domestic violence and divorce. The Criminal Justice and
Courts Act 2015 include the reform of contempt by jurors and the creation of
new offences of juror misconduct in relation to using the internet.
– The first 20 law reform programmes were enacted within an average of 2 years. In the
first 10 years of its existence, it had a high success rate of 85% of its proposal being
enacted by Parliament.
– During the next 10 years 50 % of its reforms became the law. This was due to the lack of
Parliamentary time and the disinterest by Parliament in technical law reform.
– The rate hit an all time low in 1990 when not even one of its reforms was enacted. In
2011-2012, the statistics were that there were 15 reports awaiting implementation.
– Although not all its reports are implemented, the Law commission has effects in other
ways. In its report for 2014-15, it was pointed out that the Law Commissions work had
been cited in 404 cases in the UK. In 2014-15, its report showed that overall about two
thirds of the reforms have been implemented.
– However, the government has completely rejected about 1 in 6 of the Law Commissions
2) LAW REFORM COMMITTE

– This was created in 1952.

– It is a part time body and only considers small areas of the civil law.
– The law commission often consults this committee.
3)CRIMINAL LAW REVISION
COMMITTE
– This was set up in 1957 and was another part time body which recommended
changes to the criminal law.
– Many of its smaller specific recommendations became law though is
recommendations for broad changes were met with strong opposition.
– It recommended a string of measures including abolishing the right to silence
for defendants. This met with a strong opposition from both Houses and civil
liberties campaigners and was not implemented.
– One of its main achievements was the codification of the law on theft in the
Theft Act 1968.
4)ROYAL COMMISSIONS

– Temporary committees or Royal commissions set up to investigate and report on one specific area of law. These
are dissolved after they have completed their task.
– They are made of a wide cross section of people with expertise in the area concerned. Only a minority are legally
qualified. The commissions are supposed to be independent and non-political.
– A Royal Commission can commission research and take submissions from interested parties. It produces a final
report detailing its recommendations, which the government can choose whether to implement or not.
– The Royal Commission on Police Procedure (Phillips Commission) reported in 1981 and many of its
recommendations were given effect by the Police and Criminal Evidence Act 1984, but subsequent criticisms of
PACE means that it is less of a success than it appears.
– In 1999, a Royal Commission (the Wakeham Commission) considered how the HOL should be reformed. This has
been partly implemented by the government, but full reform of the HOL is still awaited. The 1993 Royal
Commission on Criminal Justice has met with mixed success. Only some of its proposals were introduced in the
Criminal Justice and Public Order Act 1994 and the Criminal Appeal Act 1995, which created the Criminal Cases
Review Commission. However, other proposals have been ignored.
5) REVIEWS BY JUDGES

– Judges may be asked to review technical areas of the law such as the Woolf
Committee on civil justice.
6) PUBLIC INQUIRIES

– Where a problem is causing social concern, the government may set up a one-off temporary
committee to examine possible options for dealing with it.
– These usually comprise individuals who are independent of government often with expertise in
the particular area. Academics and judges may be part of such committees. Public inquiries
consult interested groups and attempt to reach a consensus between them.
– Such inquiries are usually held after a disaster and the purpose of these inquiries are to make
recommendations on legislation to avoid a repeat.
– Governments can refuse to hold a public inquiry which they feel may prove politically
embarrassing. The decision of whether to have a public inquiry is not a legal one. It is a political
one.
– The labour Government was concerned by the inefficiency and cost of recent public inquiries. For
example, the inquiry into bloody Sunday in Ireland cost 195 million pounds and lasted 12 years.
7) OTHER TEMPORARY
INQUIRIES
– The government departments set up temporary projects to investigate specific
areas of law.
– One of the most important recent examples is the inquiry by Lord Woolf into
the Civil Justice System.
– The problem with such temporary inquiries is that they rely on political will and
their proposals often get rejected.
PROBLEMS WITH LAW
REFORM AGENCIES
– Lack of power
– Political difficulties
– Lack of ministerial involvement
– Lack of influence on results
– Where temporary law reform committees have a high proportion of non lawyers, the result can be
more innovative, imaginative ideas than might come from legally trained people as lawyers are
accustomed to seeing problems in a particular framework. However, this benefit is heavily diluted by
the fact that the strong influence of the legal profession on any type of reform can defeat such
proposals even before they reach an official report.
– The Royal commission and other temporary committees are dissolved after they produce their final
report and this is a waste of all the expertise they have build up.
– A problem is that the influences on law making do not lead to the law developing in an organized or
controlled way.
Question

– It is essential that law reflects the needs of society. Describe the role of the formal law reform
bodies and consider how successful they have been in reforming the law. [25]
– Intro: The law must always be kept under review and must be reformed in order to reflect changes
in society. Law reform is essential to ensure that the law commands the respect of the citizens.
There are various law reform bodies who supervise the systematic development of law. This essay
seeks to explore the extent to which these agencies of law reform are successful in achieving the
aim of law reform. It can be argued that the ultimate power to reform the law rests with
Parliament and law reform initiated by such agencies of law reform often becomes a fruitless
exercise.
– Explain all law reform bodies along with evaluation
– Explain problems with law reform agencies
– conclusion