Fifty Years of the Law Commissions: The Dynamics of Law Reform Now, Then and Next
01 Thursday Dec 2016
The following extract is taken from the book “Fifty Years of the Law Commissions: The Dynamics of Law Reform” (2016) and is published here with the kind permission of Hart Publishing. Blog readers can get an exclusive 20% off the book when they use discount code CV7 when ordering online.
There are several strong arguments against judicial law reform: (1) The law should be clear and predictable. (2) The judges should be, and be seen to be, impartial and not to have an agenda of their own. (3) Well-meaning judicial law reform may plug the worst holes and thus hold up more systematic statutory reform. (4) Litigation is not a suitable tool for law reform. Too much is under the control of the parties, especially in our adversarial system, where even in the Supreme Court we debate whether it would be proper to decide the case on a basis not put forward by either party. (5) Judges by themselves are not well equipped to do law reform – they cannot do the empirical research, the public and professional consultation, the deep consideration of several options that the Law Commissions can do. (6) Once judges step out of the realm of applying legal principles to particular facts, and start considering policy and even common sense, subjectivity and inconsistency are bound to creep in. (7) The judges lack the seal of approval from the people that elected politicians enjoy.
On other hand, there are many disadvantages in relying on Parliament to reform the law: (1) It freezes the law in a particular place, when the evolutive development of the common law would have been more adaptable to new situations and new problems. For example, it would probably not have been possible to develop the law of privacy had the Law Commission’s 1981 Report on Breach of Confidence been implemented. (2) Parliamentary intervention may deter judges from further sensible developments. A prime example is OBG Ltd v Allan. One of the reasons why the majority were unwilling to extend the tort of conversion to choses in action was the Torts (Interference with Goods) Act 1977, the result of a perfectly sensible report by the Law Reform Committee on reforming the law of conversion and detinue. Both the Committee and Parliament had assumed that these torts were confined to chattels. Lord Nicholls took the view that ‘Parliament cannot be taken to have intended to preclude the courts from developing the common law tort of conversion if this becomes necessary to achieve justice’, but he was in the minority. (3) Parliament may mess up a perfectly sensible scheme by well-meaning but less than fully thought-through amendments. I am tempted to give Part II of the Family Law Act 1996 as an example, because it did not take long for everyone to realise that the amendments to the Law Commission’s simple scheme for a new divorce law had made the Act unworkable. (4) There are some things that Parliament is most reluctant to touch, however strongly it is urged to do so by the courts, who are only too aware of the problems of making law on the subject. The best example is their Lordships’ unanswered plea in the case of Tony Bland. (5) Parliament may do nothing, but a judge must always do something, even if it is not at all clear what he or she should do. Cardozo, in his discussion of ‘The Judge as Legislator’, quotes article 4 of the French Code Civil:
“Le juge, qui refusera de juger, sous prétexte du silence, de l’obscurité ou de l’insuffiance de la loi, poirra être poursovo comme capanle de déni de justice.”
So it is a fascinating idea that the Law Commission itself could stimulate judicial law reform, by a providing fully researched, reasoned and consulted upon policy case for developing the law in a particular area in a particular way.