Rebuilding Britain: A Survey of Problems of Reconstruction After the World War

by Sir Alfred Hopkinson

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