Recent development in law reform in the United Kingdom
By NORMAN MARSH, Q. C., Law Commissioner
Law reform can mean a number of things. As most of the main features of a country's political, economic and social life are to a greater or less extent embodied in statutes or codes of law, the idea of law reform is sufficiently wide to cover virtually any changes which involve changes in the law. In the English context, for example, the Education Act of 1944, which reorganised the system of State education, would come within this definition of law reform. Similarly the measures which after the Second World War nationalised the coal mines would come within the definition. For the purposes of this article, however, this concept of law reform would be much too wide. At the other extreme law reform can be taken to mean changes in the organisation of the legal system, covering, for example, such matters as the arrangements of the courts and the procedure laid down for bringing cases before the courts: such matters, in other words, as primarily concern lawyers or at least are really only understood by lawyers. This second meaning of law reform is in contrast to the first meaning far too narrow to cover the developments described in this article. There is in fact no precise way of defining the field of legal change in a country which, in terms of machinery and techniques, presents special problems of particular interest to lawyers. But a working definition of law reform for the purposes of this article might be: changes in the law which, even if they involve major political, economic or social questions, are in view of their legal complexity unlikely to be realised without special institutional techniques. A foreign observer should, in this connection, bear in mind that the Parliamentary procedure in the United Kingdom has not developed, to the same extent as in some other countries, a system of specialised committees under which a legal committee, for example, presents to the whole Chamber a predigested and organised argument for a particular project involving major changes of the legal system. It may be, therefore, that the developments considered in this article have only a limited relevance outside the United Kingdom and other
countries of the Commonwealth which more or less follow its Parliamentary pattern. It is hoped, however, that some aspects of the United Kingdom experience both as regards the substance of changes in law effected or contemplated and in respect of the techniques developed may be of general interest.
A lawyer from Continental Europe might naturally expect that the planning and introducing in Parliament of law reforms in the abovementioned sense would be a major task of the equivalent in the United Kingdom of a Ministry of Justice. As far as civil law in England is concerned the nearest equivalent to a Minister of Justice is the Lord Chancellor, but he is a very heavily burdened Minister with many responsibilities apart from law reform; he presides, for example, in the House of Lords in its legislative capacity, can and does occasionally sit in the House of Lords (or more accurately in the Appellate Committee of the House of Lords) when it functions as the Supreme Court of Appeal and is a senior and active member of the Cabinet involved in its political decisions, while at the same time acting as its legal adviser.1 In any event overall planning of law reform is at least complicated, if not made more difficult, by the responsibility of the Home Secretary for criminal law and by the special claims of the Minister for Trade and Industry to exercise control over broad areas of commercial law (notably, company law). It must be added that, as Scotland has a separate legal system, the ultimate authority, as far as law reform in that field is concerned, is divided between the Secretary of State for Scotland and the Lord Advocate.2
It is perhaps remarkable, considering the organisational complications, that before the Law Commissions Act 1965, important law reforms were in fact achieved. The first great period, not indeed of permanent law reform but of the elaboration of plans for reform, which for the most part have been gradually implemented over the succeeding centuries, was between 1640 and 1660.3 The second great period of law reform may be roughly fixed by, on the one hand, a famous six-hour speech on law reform of Lord Chancellor Broughamin 1828 and, on the other, the abortive draft of a criminal code which was the work of a Royal Commission set up in 1878. In this period important reforms were achieved particularly in the fields of civil
procedure, real property and criminal law. The characteristic method of reform was to appoint a body of lawyers as Commissioners with fairly wide terms of reference, usually covering a whole legal topic, such as the criminal law. However, apart from the general philosophic influence of Bentham's utilitarian philosophy (which waned in the second half of the century) there was no very effective planning of law and legal institutions as a whole; the Commissioners, although they often functioned for a number of years, were not regarded as a permanent feature of the legal system. The enthusiasm for law reform died away in the last decades of the nineteenth century. It would be going too far to speak of a third period of law reform before 1965. But a landmark of significance was the setting up of a standing committee, the Law Revision Committee, in 1934, which after World War II was reconstituted in 1952 as the Lord Chancellor's Law Reform Committee. This Committee dealt—and still deals—with the civil law only; the Home Secretary set up a parallel Criminal Law Revision Committee in 1959.4 The record of work done by these Committees is impressive, but as a method of law reform this committee system has several serious disadvantages. Firstly, they only deal with matters referred to them by the Lord Chancellor or the Home Secretary; they cannot therefore consider law reform in a very broad context. Indeed, and this constitutes their second limitation, they have not the time to do so, as the members of the two committees are busy judges, practitioners and academic lawyers, who give their services for meetings of a few hours on the average perhaps oncea month. It follows, thirdly, that the work of these Committees has to be confined to law reform proposals primarily in the field of "lawyers' law" that is to say to those aspects of the law where the social, political and economic implications are relatively uncontroversial; the Committees do not have the time or the organisation to undertake the extensive consultation not only with legal but also with other specialized, as well as lay, interests which more debatable issues require.
There is an aspect of law reform in the broadest sense not so far mentioned which is in the English context of particular importance. It generally presents a less serious problem in other countries, including those which for the most part have followed the English legal tradition. The problem in question has three aspects. First, there is the task of codifying the mixture of statute law and judge-made law which
is characteristic of the English and Scottish5 legal systems. It is easy for a foreign observer unduly to minimize the extent to which law in the United Kingdom is to be found in statutes, but it is true that much of the complexity of that law comes from the necessity of interpreting the statutes against a background of common law principles. Thus, although company law is embodied in a statutory form which comes close to a "code" of the type familiar to Continental Europe, it presupposes a basis of contract law which for the most part is to be found not in statutes but in court decisions. Secondly, there is the difficulty created by a very long parliamentary history during which statutes, from the thirteenth century to the present day, have been passed often in a piecemeal manner on a variety of subjects. As in England at all events6 legal effect has to be given to all statutes, however ancient, which have not been repealed, it is sometimes a complex task to ascertain by reference to a long series of statutes the existing state of the law on a particular subject. To overcome this difficulty, it has for the past hundred years been the responsibility of the relatively small and much overworked office of the Parliamentary Counsel to undertake the consolidation of statutes, that is to say, the preparation for enactment by Parliament of a single new measure covering the subject matter dealt with in a number of old statutes but, as far as possible, rationally arranged and expressed in modern language. Thirdly, and closely allied with the need for consolidation of statutes, there is the task of clearing the statute book of enactments which, without ever being formally repealed, no longer have any practical effect, either because they have been superseded by later statutes or because they deal with situations which in their nature can never arise again. This third task is technically known as statute law revision. It also has been a responsibility of the office of the Parliamentary Counsel, but, like the consolidation of statutes, it has necessarily had to be rather a secondary duty of that office, the primary function of which is to draft all the central Government Bills.
The urgent need for new machinery to undertake reform of the substance of the law as well as improvement (by codification, consolidation and statute law revision) of the form in which it was expressed
was a central theme of the book Law Reform Now, published in 1963. The key chapter on the machinery of law reform was written by Gerald Gardiner, Q.C., and Andrew Martin, who where also the editors of the book. In 1964 Mr. Gardiner, by now Lord Gardiner, became Lord Chancellor in the new Labour Government. In 1965 Mr. Martin, now Q.C., became one of the five Law Commissioners appointed to the Law Commission for England and Wales under the Law Commissions Act of that year.
Under the Act of 1965 two Law Commissions were set up, one for England and Wales and one for Scotland. Each Commission consists of five Commissioners, appointed in the first instance — they can be, and have been reappointed — for a period not exceeding five years. The Lord Chancellor appoints the English Commissioners and nominates from amongst them a chairman.7 The chairman for the first five years, who has been reappointed, was, and continues to be, Mr. Justice Scarman, a High Court judge. It is important to emphasise that, although the Act does not require it, all the English Commissioners and two of the Scottish Commissioners have been appointed ona fulltime basis. Further, the Commissioners are assisted by a professional and secretarial staff: the English Commission has a staff of slightly over fifty of whom about half are trained lawyers, but the establishment of the Scottish Law Commission is much smaller.
What are the characteristic features of the Law Commissions system, having regard to the deficiencies of the machinery for law reform as it existed up to 1965? Some of them may be attributed to the provisions of the Law Commissions Act itself, but of considerable importance are those which have developed in the practical working of the Commission; the latter moreover are perhaps of particular relevance for this article, as they cannot easily be ascertained by reference to the statutes or the ordinary text-books.
First, the Law Commissions (respectively for English and Scottish law) are required to take under review all the law. In other words there is provision for comprehensive reform, rather than the piecemeal system—or lack of system—which existed before 1965. This does not mean that the Law Commissions undertake reform in all
areas, where reform is required, immediately. Their Act provides that they should work to stated programmes which they themselves propose in broad terms but which have to be approved by the Lord Chancellor or, in the case of the Scottish Commission, the Secretary of State for Scotland and the Lord Advocate. Thus, the English Law Commission has had so far two programmes each for, on the one hand, the reform of substantive law and, on the other, the improvement by consolidation and statute law revision of statute law. On the other hand the Commissions can and do undertake minor reforms outside their programmes, where the changes can be made without serious disturbance of the rest of the legal system and where the reform is of sufficient urgency and importance in itself to justify some deflection of effort from the more long-term tasks of the Commissions. Sometimes the request for such a limited reform comes from the Lord Chancellor or other relevant Minister on behalf of the Government, sometimes it is proposed by the Commissioners themselves who may have acted on their own initiative or have taken up a suggestion madeto them by some outside body (such as the Bar Council or LawSociety) or by an individual.
Secondly, and by way of an important limitation on the first characteristic, the Law Commissions system, although comprehensivein its scope, allows for reform by other methods. It has been added to, rather than entirely superseded, the older ways of changing the law. Thus an important reorganisation of the courts outside London which deal with serious crime (Assize Courts and Quarter Sessions) was recommended by a Royal Commission set up by the previous Labour Government and carried out by the Courts Act 1971 for which the present Conservative Government was responsible. Indeed, the Law Commissions themselves may recommend, and have on several occasions in fact recommended, that a particular item in one of their programmes of reform, should be investigated by some other body, as, for example, the still surviving Law Reform Committee or Criminal Law Revision Committee, of which mention has been made previously. This non-exclusive character of the Law Commissionssystem is a recognition of the tremendous size of the task of comprehensive law reform and of the political and practical desirability ofenlisting in its carrying out all possible support.
Thirdly, the Law Commissions are independent. The Law Commissioners (in contrast to their staff) are not civil servants and, although those appointed have in fact come from the two branches of the practising legal profession (barristers and solicitors) and from the faculties of law of the universities, with a judicial chairman, they
are not representatives of particular legal interests. They see their function rather as one of presenting to Parliament proposals for there form of the law which from a technical point of view are sound (in the sense they can be conveniently fitted in to the legal system as a whole) and, so far as they raise political, social or economic questions, are (after wide-reaching consultation) put forward with a clear statement of the issues involved. The Commissions are not competent to decide such issues, but this does not mean that they can evade their responsibility of dealing with law reform proposals which are controversial. In the light of their consultations they set out the arguments for and against various courses of action and the differing legal consequences which they would involve, normally stating their own preference although sometimes putting forward alternative solutions to Parliament. In emphasizing the independence of the Commissions, however, it must be conceded that the Government of the day (through the Lord Chancellor or corresponding Ministers for the law of Scotland) can veto an enquiry which one of the Commissions suggests should be undertaken, although once an area of law has been approved for enquiry, the resulting report has to be laid before Parliament. Further, the Commissions have the right, and indeed the statutory duty, to make an Annual Report, which has to be laid before Parliament; and in that Report they make such comment as they think appropriate on any topic which by reason of the operation of the ministerial veto they have been unable fully to investigate.
The fourth and fifth characteristics of the Law Commissions systemare of great practical importance; they serve to strengthen the independent position of the Commission, although they have developed in the course of the working of the Commission rather than on the basis of any very specific statutory authority. Reference has already been made in passing to the role of consultation, but it deserves separate mention. That law reforming bodies should consult the various interests having been, or likely to be affected by, proposals is not of course new. The Law Commissions' approach is of interest in the manner and scale of the consultation carried out. Once an area of the law has been proposed for investigation by one of the Commissions, and the requisite ministerial approval given, the Commission (in facta "team" within the Commission consisting of one or two Commissioners and two or more members of the legal staff)8 prepares a "Working Paper". When this Paper has been discussed and finally approved
by the whole Commission it is given a very wide circulation to many lay bodies and individuals (women's organisations, for example, when family law is in question or consumers' organisations when such topics as "standard contracts" and exclusions from contractual liability are being discussed) as well as to individual lawyers and their representative organisations. The circulation may well amount to a thousand or more copies, and the Working Paper will also be referred to, and probably summarized, in the legal journals and, in a shorter form, in the ordinary newspapers. The Commissions have generally found that this method of consultation is more profitable (in the sense that it provokes a more informed reaction and, incidentally, in the sense that it helps to educate the public as to the issues of law reform) than other and hitherto (in the United Kingdom at least) more favoured methods of consultation, such as oral hearings or questionnaires. The essence of the Commissions' typical Working Paper is that it provides for the layman, as well as for the lawyer (who may be too busy to undertake the specialized research involved) a fairly detailed survey of the existing law concerned, a tentative outline of the difficulties to which it appears to have given rise and suggestions (with usually an indication of the Commissions' own preference) as to how these difficulties might be overcome. It may take six months to a year to collect the comments on the Working Paper. When they have all been received and considered, the original "team" assigned to the topic prepare a draft Final Report which, with a draft Bill prepared by the Parliamentary Counsel attached to the Commission, is then discussed, and often substantially amended, by the full Commission. The Final Report describes at some length the process of consultation and the views which it elicited and explains, if necessary, why one set of views have been rejected and another followed. The aim is to assist Parliament in the ultimate discussion of the Bill in a way which may not always be possible in the cut-and-thrust of political debate.
The fifth characteristic of the Law Commissions system must be stated in a rather tentative form; to over-emphasize its importance would be to ignore the ultimate responsibility to the public of the Government and Parliament for law reform. Nevertheless the Commissions attach great importance to their own relations with the public, as can be seen in a number of ways. Mention has already been made of consultation. It should be added that when a Final Report is published, a good deal of thought is given to the summary made available to the Press, particularly when the general interest of the subjectmatter may be obscured by an inevitable mass of technical de-
tails. Apart from this, the policy of the Commissions has always been to work "in a glass cage" and to welcome visitors and enquiries and to make available any information or papers in which, for example, research workers may be interested. Recognizing that the current wave of interest in law reform may, if we can judge from legal history, always be in danger of losing some of its impetus, the Commissionersalso speak, broadcast or write fairly frequently about their work.
Lastly, it is, particularly for the foreign observer of the Law Commissions' system, relevant to add that their constituent Act specifically requires them, in formulating their proposals, to study the law and legal institutions of other countries. Such comparative research is of course not new; Royal Commissions and ad hoc committees considering aspects of law reform frequently refer to the example set by foreign legal systems and the debt which the British Parliamentary Commissioner owes to the Swedish and Danish and New Zealand Ombudsmen is well known. It is however the first time that comparative research in connection with law reform has been made a statutory requirement. The practical effect may be traced in a number of the Commissions' Reports. For example, in the field of family law, the recommendations which eventually led to the Divorce Reform Act 1969, making "breakdown" rather than a "matrimonial offence" the central principle of divorce, were preceded by study of Scandinavian experience, as well as of recent matrimonial legislation in Australia and New Zealand. And in its Report on the Interpretation of Statutes, in which the Law Commission argued in favour of a less literal and more purpose-directed approach, a fairly extensive explanation (at least at the Working Paper stage) was given of the systems of interpretation prevailing in Scandinavia, Germany, France and the United States. In the light of pending British entry of the Common Market it is clear that, with the demand for harmonization of laws, the comparative aspect of the Commissions' work will gain added importance.
Machinery for the reform of the law is one thing; concrete recommendations, and still more implementing legislation, are another. In the course of six years the two Commissions have produced about sixty reports. What is more significant is that, contrary to some misgivings when the Commissions were first set up, Parliament has given statutory effect to the great majority of these reports, while others are still under consideration; few, if any, proposals have been completely rejected.
The Law Commissions are jointly engaged in preparing a common code of the law of contract, the law being somewhat different in England and Scotland; in both countries it rests at present primarily on judge-made law rather than on statute. Other codifying projects of the English Law Commission cover the law of landlord and tenant, the entire criminal law and family law. The contract code and the landlord and tenant code are major relatively long-term operations each to be presented to Parliament as a whole, but individual subjects within the subject matter of these codes have been investigated in advance of these codes.9 The criminal code and the code of family law are being built up stage by stage and a number of statutes marking stages in this process have as a result of Law Commission Reports already been passed.10 Apart from the codes, and work on "consolidation" and "revision" of statutes (the nature of which has been described above), the English Law Commission is preparing a variety of reform projects aiming at the simplification of the transfer of land and has dealt or is still dealing with various subjects concerned with the law of "torts" (e.g. limitation of actions, assessment of damages, civil liability for animals and for defective buildings). It has surveyed the present law of "strict liability" to the limited extent that it exists in English common law, but it has not been able to undertake any far-reaching enquiry into some of the now frequently discussed alternatives to liability based on negligence (such as, for example, strictliability for a wide category of risk-creating objects or activities or, as is now in course of introduction in New Zealand, a compulsory scheme of insurance against accidents giving rise to personal injury). This is
one of the rare cases where the ministerial "veto", referred to above, on an item in a Law Commission's programme has come into operation. Finally mention may be made of a Working Paper which has been published on administrative law. It is far from being true that the English legal system has no system of administrative law but it has been developed piecemeal and is very technical. The Law Commission previously recommended a wide-ranging enquiry into administrative law but this recommendation has not, at least so far, been accepted by either the present or the previous Government. Meanwhile the Law Commission has been asked to carry out a limited enquiry into the existing remedies whereby judicial control is exercised over administrative acts and omissions and this it has done in the abovementioned paper; it provisionally recommends a single comprehensive "application for review" flexible in its scope and in the type of relief which it can afford.
In spite of these not inconsiderable achievements in a relatively short time, it is too early to generalize about the pattern of English or Scottish law which is likely to emerge as a result of the law reforming activities which have been described in this article. What should be emphasized is that the United Kingdom has now relatively firmly established institutions for keeping the law abreast of the needs of the times. This in itself is "a law reform" of some magnitude.