LAW REFORM
I should not be an advocate for the repeal of any law because it happened to be in opposition to temporary prejudices, but I object to certain laws because they are inconsistent with the deliberate and permanent opinion of the public.—SIR JAMES MACKINTOSH.
Compared with some of the other great questions involved in Reconstruction, mere reforms in the law may often seem almost trivial, but they have the advantage of being easier to handle than social and economic reforms. It is not so difficult to state exactly what is wanted, to embody the proposals in definite shape in a Bill, and to pass it if the Parliamentary machine is properly used. The incapacity of Parliament to deal with remedial legislation embodied in a Bill clearly drawn is often exaggerated. A reform merely in Parliamentary procedure would go far to remedy the existing congestion. A case could be quoted from very short Parliamentary experience where a private member, surprised at getting first place in the ballot, adopted a friend's suggestion to attempt a long-needed practical reform. The subject has too much technical difficulty to be explained here, but the Bill was drafted in an hour or two, passed the House of Commons early one afternoon without alteration, and the House of Lords with slight verbal changes. It became law in two or three weeks, and the Act is now used with beneficial results in the Courts almost daily. A real injustice was prevented and practical inconvenience removed, but the measure was nearly wrecked by some theorists who wished to extend the principle of the Bill logically, as they said, but in a manner which would have made it virtually
unworkable, without benefit to a single human being. A small matter, but instructive.
Much may be learned from the procedure of Grand Committees. In some, at least, the average length of speeches is about three minutes, and they are confined to the definite point in hand. Members vote according to their view of the merits, knowing what they are voting about, and may defeat the Government without causing a political crisis. A case has occurred where the representative of the Government, who knew little of the subject in question, was left in a minority of one against a solid vote of the rest of the Committee. "Downstairs" the point might have been decided the other way by a score or two of members rushing in, as Sir George Trevelyan once described it, "between two mouthfuls of soup," asking, "Are we Ayes or Noes?" and shepherded into a division lobby accordingly.
Another step needed to aid Law Reform would be the appointment of a Minister of Justice, whose business it would be to consider proposed reforms, to see that they were put into proper shape and to assist in getting them passed. The same Minister might have the duty of attending to arrangements for the convenient and prompt administration of justice, but should have no judicial functions of any kind and should not interfere in any way with the action of the Courts. It is impossible to guard too jealously against substituting decisions of any department of Government for the law of the land as declared and administered by the regular Courts of Justice. Mr. Samuel Garrett, the President of the Law Society, dealt with the question very fully in January, 1918, in an address which has since been published. We may view the establishment of another new Ministry with something like horror, but a strong case is made out for it here. Definite functions are suggested for such a Ministry, and it is probable that it might in the long run save expense as well as promote efficiency. Mr. Garrett very forcibly says:
"
Law Reform hangs fire for want of an officer of State armed with the power of conducting the necessary inquiries and investigations, and supplying the necessary driving force to initiate and prepare the requisite legislative measures and to pass them through Parliament, and with strength to overcome the vis inertiae of a preoccupied and ill-informed public and the active opposition of vested interests. Without such an officer the cause of reform is hopeless." It is now and in the immediate future that such reform is, and will be, most pressing. A reformed is naturally also a reforming Parliament as it was after 1832.
There are a large number of reforms in the law which ought to be taken in hand at once. The nature of the amendments needed is clear; all that is required is that they should be brought in proper form before Parliament, and that the Government should use its influence to get them passed. It would be difficult for the Lord Chancellor to see to this work efficiently and regularly along with his other duties, and it is certainly impossible for the Law Officers, whose duty it is to represent the Crown in the Courts and to advise the Government on questions of law, to undertake this duty. It could be done if a capable solicitor or barrister who had experience of cases relating to property, not just a successful advocate but a lawyer well acquainted with the practical difficulties which make amendment in the law desirable, were put in charge of the work.
It is a complete mistake to imagine that devolution to other bodies of the legislative powers of Parliament would do what is required in this respect. Such a delegation as regards many subjects would make confusion worse confounded. Questions relating to marriage and personal status, naturalisation, the law of companies, all branches of commercial law, the law of contracts, and the law relating to devolution of property, should be dealt with by one body, whose aim should be to assimilate the law on these subjects over as wide an area as possible. Endless trouble,
litigation and uncertainty arise from an unnecessary variety of laws on such subjects as these. It would be well, indeed, with regard to such subjects, to endeavour to assimilate the law of the Colonies and of the Mother Country, and to enter into negotiations with other countries to facilitate their commercial intercourse by enacting similar laws on subjects of this kind as far as may be.
It is impossible, without taking up too much space and entering too much into technical detail, to do more than indicate in general terms some of the reforms in the law which demand early attention. The following may be given as examples:
(1) The complete revision of the Statute Law, consolidating the law on each subject as far as possible, and in some cases amending it at the same time. The present state of English Statute Law is a disgrace to any civilised nation. There are subjects on which it is almost impossible to say what the law is, owing, amongst other causes, to the pernicious habit of legislation by reference from one statute to another. Judges, the legal advisers to parties in litigation, clerks to local authorities, and others, ought to have in compendious form before them the whole Statute Law on a subject under discussion. Much good and very laborious work has been done under the direction of the Committee on Statute Law, but their duties should be extended and fuller facilities afforded for more complete and more rapid revision. These powers should include that of presenting at the same time to Parliament minor incidental amendments in the Statute Law which would remove doubts and inconsistency, and get rid of obsolete provisions. Either a Minister of Justice or one of the existing Ministers along with his other duties should be definitely responsible for seeing that the work is done without undue delay or expense. Probably a small Joint Committee of Lords and Commons might consider any cases where amendments were made, and, if they approved of the revised and consolidated Statutes,
the Committee stage in both Houses might be dispensed with, and a single reading of the Bill of revision or even merely "to lay it on the table" would be quite sufficient to preserve the general authority of Parliament over legislation of this kind. A small executive department should be established under the direction of the Minister for dealing with all details and drafting the proposed Bills. There should be a permanent head of such a department with a small but efficient staff and proper accommodation for carrying on the work, which would be continuous, in order not only to put but to keep the Statute Law in proper form. The head of such a department should have a very free hand as regards the mode of carrying on the work, subject to certain general regulations laid down as to the scope of his duties, and the expense that might be incurred, and the department should be free from some at least of the ordinary conditions relating to the Civil Service. With the advantage of existing experience, such a department might be constituted on sound lines within a week or two, and its work would result in saving time and trouble to Courts, to local authorities, to private individuals, and to various government departments themselves. The cost of such a department would be covered over and over again by the improvements effected. It is a comparatively small matter, but the lines of action are so clear and so definite, and it would be so easy to make the necessary arrangements in a few days, that it might be taken as an example of the way to effect a reform promptly.
The huge mass of emergency legislation which has come into existence since the War would no doubt require separate consideration. That exceptional legislation will have to be revised and almost the whole of it repealed, in some cases at once and in others within a short time after the close of the War. This question is already engaging the attention of the Government. It is not an easy task, but the transition to freedom should be made as rapidly as possible. The action to be taken, however, in many cases, will very closely
affect trade, and in these cases the question is not one primarily for lawyers; even the officials with most experience will require the advice and guidance of those who know each trade practically. The more anyone in the discharge of official duties learns of the course of trade in any commodity the more he will recognise the necessity for practical knowledge of the conditions of that trade, and the futility of attempting to deal with any question affecting it without hearing those who have been actually engaged in it. What an intelligent open-minded man might expect to happen is very often exactly what does not in fact happen. It is tempting to give concrete examples which have forced themselves into notice, but limitation of space forbids.
(2) The law on certain subjects should now be codified. This is a different question from the revision of the Statute Law and the introduction of something like order into that chaos. It is, however, probable that a general codification now would do harm, and there are strong grounds for contending that Case Law, with its capacity for growth and adaptation to new conditions as they arise and to unforeseen circumstances, is often more convenient and indeed more scientific than a code. Criminal Law, however, at least so far as it relates to indictable offences, ought to be embodied in a definite and complete code, and in the process of codification certain amendments might be made.
(3) The law as to murder and homicide, for example, urgently requires considerable amendment. The present state of the law classing together as murder acts of totally different character and decreeing the punishment of death for all alike is most unsatisfactory, and in some cases revolting to the moral sense. The whole doctrine of "constructive murder" should be done away with, and only those acts treated as murder and punishable with death where the accused intended deliberately the death of his victim, and was not acting under great provocation or under the kind of mental distress or anxiety which might be reasonably supposed
to affect his—it might indicate the usual nature of such cases better to say "her"—judgment and power of control.
There are also a number of alterations in the law relating to the devolution of property, and to personal status which ought to be made by the new Parliament at an early date. Most of them have been suggested long ago, but as no party capital was to be made out of law reforms, such reforms have generally been neglected unless taken up by a Lord Chancellor or some other legal authority with political influence. A few of these alterations may be enumerated.
(4) The devolution of real estate in case of intestacy should be assimilated to that of personal estate. The present state of the law is often a great injustice, especially to women, and women will now be in a position to demand its amendment. If a man dies intestate, leaving a wealthy son and half a dozen daughters quite unprovided for, the son takes all the real property, and the daughters may be left penniless, but if the property happens to be leasehold for 1,000 years, the daughters share equally. The present state of the law is a survival of the time when ownership of freehold land implied personal service.
(5) Estates tail might be abolished or at least alienation of such estates made simpler.
(6) Copyhold tenure with its inconvenient incidents should be converted into freehold.
(7) Both as a means of raising revenue, and to prevent useless litigation without in any way discouraging thrift or disappointing legitimate expectations, the State should take the whole property as to which anyone dies intestate without leaving near relations. The whole subject of Death Duties needs reconsideration; a mere increase of these duties all round would cause intolerable hardship in some cases and would discourage people from attempting by careful foresight to make provision for those dependent on them, but when very large sums devolve on death to persons who are not dependents, the State might
take a much larger portion of a deceased person's property than it does at present. If a multi-millionaire dies without leaving a wife or lineal descendants, there would be no hardship in taking fifty per cent. of his property—not devoted to charitable purposes—for the State. It would not be difficult to frame provisions to meet the possibility of settlements being made to evade the duty.
(8) Legitimation by subsequent marriage would remove many cases of great hardship, and might aid in inducing fathers to recognise their duties to children for whose existence they are responsible, and also to the mothers of such children.
(9) A regular form of legal adoption should be provided by which, subject to some form of public sanction to secure that the adopting parents are fit and able to take such responsibility, persons might give children, whom they desire to adopt, a recognised legal position. The losses caused by the War make this question one of increased practical importance.
(10) The reform of the law as to marriage ought not to be longer delayed. The question has already been carefully considered by the Commission of which Lord Gorell was chairman. This subject will, no doubt, provoke controversy, and it is impossible to discuss it fully here, but delay may have serious consequences.
The above incomplete list will be sufficient to indicate in a fairly definite way some of the work that has to be done in Law Reform. It is certainly a heavy task, but in almost all cases the lines on which reform could be carried out are clear, and it only requires that the matter should be resolutely taken in hand. If a small expert committee to consider each branch of the subject and draft the necessary Bills were appointed, or some Minister were made definitely responsible for attending to such matters, and if the procedure in Parliament were reformed as suggested, the congestion in Parliament need not prevent these reforms from being carried through rapidly.