1. Wouldn’t expecting the legal profession to help maintain the integrity of law create confusion between the roles of the legislature and the judiciary?
  2. Should the judiciary be entitled to change the law without gaining the agreement of parliament?
  3. Would lawyers who report incoherent law be expected to suggest reforms?
  4. Wouldn’t the duty to report incoherent law be a significant burden on the legal profession?
  5. Isn’t this kind of review of the law already done by the Law Commission?
  6. How exactly would this reform be implemented?

 

Wouldn’t expecting the legal profession to help maintain the integrity of law create confusion between the roles of the legislature and the judiciary?

It doesn’t matter if there are overlaps in legislative responsibility, as long as it’s clear whose view should prevail in the event of a clash. What is important is that there shouldn’t be any gaps. The reason pernicious laws persist is largely due to the fact that, in our current system, there is a gap between legislative and judicial responsibilities. A mature constitution shouldn’t require the public to agitate to put something right which is obviously wrong but, if the courts can’t change bad laws and Parliament won’t, then public agitation is the only way it can happen.

Our primary reform (the requirement that law be coherent) would allow the courts to demand much higher legislative standards from Parliament. Our secondary reform (the duty of legal professionals to help maintain the integrity of the law) would bring incoherent laws to light. However, it would generally only be common law which the courts would amend without reference to Parliament; they would only be able to overturn statute law if Parliament wilfully ignored the problem.

Should the judiciary be entitled to change the law without gaining the agreement of parliament?

The courts do already routinely change common law – with the passive consent of Parliament, which has the power to enact statutes to override any change the courts introduce. The courts’ power to overturn statute law under this reform would be limited to circumstances where Parliament had wilfully ignored a conflict between the statute and deeper principles of the law, and it would be a highly visible process which, under our proposals, would need the consent of a jury.

These reforms would not diminish Parliament’s legitimate sovereignty in any way; they would merely reduce the probability of bad laws being introduced through accident, or remaining in force through negligence.

Would lawyers who report incoherent law be expected to suggest reforms?

Under this proposal, reporting incoherent law would be a requirement, but working out suitable reforms would not be.

Our reform would establish an official forum where people could debate whatever is reported on a pro bono basis. We believe there are enough people who care about the integrity of law that the forum would be very active and could make a significant difference. It’s also possible that the people who engaged in it could become the preferred candidates for the judiciary, because their engagement there would demonstrate their care for the integrity of law.

Wouldn’t the duty to report incoherent law be a significant burden on the legal profession?

Would it be a significant burden? It is certainly possible that, initially, the forum would be overwhelmed with reports of unjust law. But we regard that as a purely transitional issue, a function of how bad the existing body of law is. There would no doubt be a period when all sorts of inconsistencies and injustices were being reported but many of them would have common roots in a failure to respect particular principles. So it would be onerous in the short term perhaps but, in the long term, we expect it to lead to much smoother operation of the legal system.

Isn’t this kind of review of the law already done by the Law Commission?

The Law Commission, as it currently operates, is nowhere near being an adequate solution to incoherent law. Not only do they report to government, everything they propose must be agreed with the Lord Chancellor. They are therefore heavily constrained by political considerations.

Our reform would establish a (firmly moderated) open forum which would attract people interested more in legal principles than in legal practice. Many of them would be practising lawyers, of course, but others would no doubt also be drawn to it. As a pro bono forum it could cover far more territory than the Law Commission (which must be constantly aware of its limited resources) at much lower cost and it would be free of the political considerations which the Law Commission currently operates under.

How exactly would this reform be implemented?

We propose the following draft clauses:

Every officer of the court shall be expected to recognise serious incompatibilities or inconsistencies within the law which they encounter in the course of their duties and shall be obligated to report them to the court.

The court

  1. shall establish and manage a forum where such reports can be collated and where the problems identified, and possible solutions, can be freely discussed by anyone who wishes to do so;
  2. shall provide for one or more members of the judiciary to oversee the forum, to consider such problems and proposed solutions and, where appropriate, to formally acknowledge the problems and submit proposed solutions for consideration by the court;
  3. shall authorise public funding for disputes on points of law which are formally acknowledged as being unsatisfactory;
  4. shall make formal rulings on uncontentious amendments to common law without requiring such amendments to be presented to it in the context of a specific dispute;
  5. shall, where appropriate, make Declarations of Incompatibility to Parliament without requiring such incompatibilities to be presented to it in the context of a specific dispute.

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