We propose that the courts should have a constitutional duty to actively maintain the integrity of the law. faq
Given that a primary purpose of law is to pre-empt conflict, it seems perverse that the courts are apparently only able to amend out-dated common law – or even correct their own mistakes – in the context of a dispute. The fact that, currently, anyone who is a victim of incoherent law must take a huge financial risk to get it amended – even if the shortcomings of the particular law are widely acknowledged – is highly unsatisfactory.
Perversely, if a dispute is necessary to get a flawed point of law changed through the courts, the only ones which can be changed that way are the ones which are in fact likely to lead to a dispute in court. The more obviously derelict a law is, the less chance there is that it will actually come before a court; if one party demonstrates in preliminary exchanges that it will clearly be overturned, the dispute will evaporate and the opportunity to bring the law under scrutiny evaporates with it.
If legislation were expected to be rooted in principle, and legal practitioners were expected to understand the basis of any laws they encounter, that might not matter too much. But when the law is treated as a set of arbitrary rulings, as it is currently, the dependencies between different aspects of the law become invisible. The rationale behind particular points of law can rest on prior points of law and if those prior laws change then the consequential laws become unreliable and need to be reconsidered. A mature legal system has to have some mechanism for addressing that need. faq
Approaching the question from another angle, it seems unreasonable that the gatekeepers of the legal system (whose livelihoods come from guiding people through its complexities) are under no obligation to seek improvements in the law even when they recognise its faults. Legal practitioners are in a privileged position with regard to the law, and the benefit that accrues to them from its complexity needs to be balanced by a responsibility to help keep it as simple as possible. They are also uniquely placed to fulfil that responsibility; they encounter the problems within it in a way that legislators don’t and many of them will have useful insights into how those problems can be resolved. By contrast, if the legal system relies on Parliament to maintain the integrity of law the flexibility of common law is lost, the minor details of the law become hostage to political timetables, and political energies get diverted from the broader principles and end up mired in minutiae.
To ensure that laws are kept consistent with fundamental principles, we believe the following reforms are needed:
- Every officer of the court (which includes every practising lawyer) should be expected to recognise incompatibilities or inconsistencies within the law which they encounter in the course of their duties, and should be required to report them. faq
- The courts should establish a body to collate and consider such reports; to provide and manage a semi-formal pro bono forum where such problems, and possible solutions, can be discussed; to authorise public funding for disputes on points of law which are recognised as being unsatisfactory; and to submit uncontentious amendments to the court. faq