Lord Toulson

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.

Historical consciousness is an essential factor for anyone taking a serious interest in the development of our law.  For this reason it is imperative that we never lose sight of the common law principles and methods which provide our legal soil and bedrock, while recognising uksc-blogthat they have been and are capable of accommodating cultivars from elsewhere.

By those sentiments I do not mean to give a misty-eyed impression that everything about the common law is a model of perfection, I shall have something to say about reform of the common law, but first I would like to share some thoughts about the state of the statute book 50 years on from the establishment of the Law Commission.

In our jurisdiction Parliament is recognised to be the supreme law maker, the interpretation of the law is recognised to be the function of the courts and the executive branch of government is recognised to be subject to the law, but the way in which the law is shaped is more complex than those simple statements might suggest.  Many modern statutes give powers to the executive including delegated legislative powers.  Moreover if the government has a working parliamentary majority it is in a strong position to change the law, including in ways which may be popular at large but discriminatory and oppressive towards unpopular minorities.  Much of the development of constitutional law and of the concept of the rule of law over the last 70 years has been concerned with ways of handling the conflict between the democratic power of an elected Parliament to make laws as it thinks fit, and the protection of rights which have come to be regarded as fundamental for all members of society.

In his seminal book, The Rule of Law, Lord Bingham described the core of the principle of the rule of law in these words:

“[T]hat all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”

This formulation was not intended to be rigid or comprehensive but to capture the central concept, which he supplemented with a number of supporting propositions or principles.  The first is of particular interest: “The law must be accessible and so far as possible intelligible, clear and predictable.”

The idea is scarcely new or revolutionary.  Among earlier eminent scholars, Professor Lon L Fuller of Harvard Law School set out a number of necessary elements of the rule of law in his book, The Morality of Law, published in the year before the passage of the Law Commissions Act.  They included requirements of reasonable clarity to avoid unfair enforcement and the need to avoid contradictions.

Nor is the idea unique to western democratic society.  The communique from the Chinese fourth plenum stated:

To construct a Socialist legal system with Chinese characteristics, we must persist in giving precedence to legislation, giving rein to the guiding and driving role of legislation, and grasp the crucial matter of raising legislative quality … We must let the principles of fairness, justice and transparency penetrate into the entire process of legislation, perfect legislative systems and mechanisms, persist in simultaneously carrying out legislation, revision, abolition and interpretation, strengthen the timeliness, systemic nature, focus and effectiveness of laws and regulations.”

Compare those objectives, particulars the references to fairness, transparency, revision and systemic nature, with the words of section 3(1) of the Law Commissions Act:

It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law.”

Like the Chinese, we have a problem and it is serious.  In 2013 the Office of Parliamentary Counsel (OPC) and the Cabinet Office began a “good law initiative” with the publication of a report entitled When Laws Become Too Complex.  The OPC identified the qualities of good law as law which is “necessary, effective, clear, coherent and accessible”.  But there is a gulf between how the law should be and how it is.  The OPC correctly observed that the problem is not new, but it continues to grow with the ever-increasing volume of legislation.  The OPC acknowledged that the volume of statutes and regulations, and their level of detail and frequent amendments, make legislation hard to understand and difficult to comply with.  It recognised that “there is no compelling incentive [within government or Parliament] to create simplicity or to avoid making an intricate web of laws even more complex”, and that every addition has the potential to cause an exponential increase to the overall complexity.  Good law requires us to consider how the situation can be reversed, for as the OPC candidly recognised, inability to access and understand the law “undermines the rule of the law”.