A history of law in England

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Date added: 17-06-26

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Rules are necessary in a civilised society to assist us in solving disputes, arising between “the state and the citizen, or between citizens themselves” (Portsmouth NHS Trust v Wyatt and Wyatt [2005] per Hedley J at [4]). However, in any dispute, each party will have rules and principles that best suit their own beliefs or interests. These may vary, depending on their religion, their profession or their status (for example, as a parent, family member or teacher). It is therefore necessary to have a single set of rules that govern everyone equally, so that the decision reached in a dispute is external to the beliefs of any particular group (Arthur et al, Unit 26, p.150). The formal rules governing citizens of a country are described as laws. In order for laws to gain the respect of society, they must follow common values that society holds. Society expects laws to be just and to always be tied to justice (Arthur et al, Unit 26, p.147). But the values held by the public and society generally change and evolve, and the law therefore has to, and indeed does, evolve in an attempt to meet those values. This can be demonstrated by the evolution of the law relating to corporate manslaughter. During the period 2005-2006, 212 workers were killed at work and an additional 146,076 non-fatal injuries were reported (Health and Safety Commission, 2006). Successful prosecutions for such incidents were extremely rare. A number of large scale disasters, such as the Clapham Junction crash in 1997 and the Potters Bar crash in 2002 (Arthur et al, Unit 23 p.18) also saw companies escape liability for serious loss of life, despite evidence of major failings in the organisation, due to lack of evidence. Such incidents might have been treated as unfortunate accidents, but changes in the perceptions of society mean that today people are more concerned that organisations should be held accountable for their failings (Arthur et al, Unit 23 p.8). The law has had to evolve to meet these views. Previously, in order to secure a conviction against a company, it was necessary to identify a ‘controlling mind’ in that company that was responsible for the particular failings. But as for the P&O ferry disaster, it was often the case that the failings of many different people at all levels contributed to the disaster. The introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 made it easier to prosecute medium and large-sized companies where gross failures of management have led to death. Under the Act, it is now only necessary per Section 1(1) to establish that the way in which the senior management has managed or organised the activities of the organisation is a substantial element of the breach that caused the death. This is no easy feat, as identified by Harris (Harris, cited in Arthur et al, Unit 23 pp.27-29), but it is thought that the Act will improve accountability. However, this is still against the corporation as a legal entity, rather than the individuals concerned. This means that whilst the changes demonstrate the evolution of the law to meet society’s demand for accountability, further change may be necessary in the future, as society may not be satisfied that the Act does enough to address its demands. Such a process reflects how the law has evolved to deal with the demands of society, and this process shows that it is “never static” and is “always changing” (Harris, 2007, p.1). The variety of disputes that are brought before the courts is endless. Whilst Parliament strives to produce a comprehensive law that covers as many of these disputes as possible, it is part of the Courts’ role to ‘flesh out’ this law by applying it to new circumstances not previously contemplated by the Legislature. This process expands the law; and sometimes, the Courts redefine their application, changing the way they have viewed an Act of Parliament previously. Although the Courts are not rule-makers, in this way, they “reinterpret” and “redefine” the law (Harris, 2007, p.1). Such redefinition may not just result from the values of society but also the way society is constructed. For example, the concept of ‘family’ has changed a great deal through the years. Traditionally a family consisted of a married couple, together with (usually) two children (Arthur et al, Unit 24 p.36). Nowadays, this is far from the ‘norm’. One in eight children experience life in a step-family by the age of 16 (Arthur et al, Unit 24 p.37) and in 2007, 14% of ‘families’ were cohabiting rather than married (BBC, 2007). Unfortunately, the law does not define the term ‘family’ (Arthur et al, Unit 24 p.43) – this is left for the Courts to do – but it would certainly be unjust to apply the traditional concept of the ‘nuclear family’ when applying the law, since this does not represent the reality. Case law has understood ‘family’ to be those with consanguineous or affinal ties, but this does not always reflect how society defines family. Homosexual couples have historically not had affinal ties because they have not been permitted to marry. Under the Matrimonial Causes Act 1973, a marriage would not be legal when the parties are not male and female respectively (Arthur et al, Unit 24 p.46). The Civil Partnership Act 2004 now allows homosexuals to partner in a marriage-like relationship, and thus, the law treats them as family, entitling them to similar legal rights as a traditional married couple. However, the Civil Partnerships Act applies only to homosexual couples – heterosexual couples were dropped from its scope – meaning that unmarried couples still have issues like Anna Homsi, who was told she could not claim the war widow’s pension in respect of her long term partner with whom she had a child, as she was unmarried (Arthur et al, Unit 24 p.53). In this respect, the concept of ‘family’ in a legal context has been redefined to reflect changes in society, but as for corporate manslaughter, the principles relating to marriage and family need addressing further (and indeed have been subject to further proposed reform) to accurately deal with the new types of families and relationships that are prevalent in society (Arthur et al, Unit 24 p.52-54). The rules set out by Parliament in the form of the law cannot be overridden by the Courts. If Parliament has made its intention clear in the words of a statute, the Court has no place to decide a case in conflict with that statute (bar situations where Parliament has said it can – for example, by agreeing on the supremacy of European Law). Parliament strives to update the law to reflect changing values in society so that whilst not every faction of society will agree with every law, generally the law enacted is representative of society as a whole. This is reflected in the way that every new piece of legislation is generally subject to a lengthy consultation process where bodies such as the Law Commission collect the views of as many stakeholders as possible, before evaluating the best way for the law to evolve, and making recommendations to this end. In this regard, “regulators… strive… to ensure that the law constantly reflects changes in society itself” (Harris, 2007, p.1). Where a matter does not fall under a particular Act, the Courts’ role will be to extend the law to apply to a given scenario. It may be that the Courts have already done this in the past and thus there is an example decision to follow. The doctrine of precedent, holding that previous decisions made by higher courts are followed in future cases where the facts are similar, may determine a particular direction is taken in deciding a case. However, the higher Courts sometimes depart from precedent to ensure that the law continues to reflect the values held by society. Arthur et al gives an example of a situation where sticking to a precedent would produce an unjust result. The example is of a swimming race, the rules to which stated “the winner is the first swimmer to touch the side of the pool with both hands”. The winner of the race in question had only one arm and was consequently disqualified (Hutchinson, 1988, p. 23). In such a scenario, clearly it would be appropriate not to apply the rule, as drafted, quite literally. The result would be unjust. In such circumstances, the courts may have to read additional words into the rule to produce a just result, although they cannot read words into the statute that go against the will of Parliament. As noted, if the law is applied unjustly it will lose its credibility and fail to gain the support of society. It is essential that judges keep this in mind when applying the law. As well as interpreting Acts of Parliament in such a way as to reflect changes in society, judges may be required to define their scope. Where an Act does appear to clearly set out the views of Parliament, the limitations of its application may be determined by the Courts. For example, Article 2 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), brought into effect in English law by the Human Rights Act 1998, denotes that: “Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law”. In Portsmouth NHS Trust v Wyatt, this right is qualified. The case involved a seriously ill baby, Charlotte Wyatt, who had no sensation other than that of pain. The parents naturally wanted to prolong her life, but the doctors felt to resuscitate her, if she stopped breathing, would prolong her pain and distress. In reaching a decision, Hedley J makes reference to Re J (A Minor) (Wardship: Medical Treatment) [1991], in which Lord Donaldson notes that a balancing exercise is to be performed in assessing the course of action to be adopted that represents the best interests of the child” (cited in Portsmouth NHS Trust v Wyatt, at [24]). Lord Donaldson goes on to say that there is a strong presumption in favour of treatment to prolong life – but this is not irrebuttable. Account must be made of the pain and suffering involved in the proposed treatment. In the Wyatt case, Charlotte already had a very limited life expectancy and so Donaldson’s comments in Re J (A Minor) that a treatment would not be in the best interests of the child where it would “cause increased suffering and produce no commensurate benefit” (Lord Donaldson, Re J (A Minor), at 46–47 and 375) were particularly relevant to Charlotte. Hedley J also makes reference to Taylor LJ in the same case who stated that the absolute right to life would certainly not prevail where “the only way of preserving life [is] by the continuous administration of extremely painful treatment”. Since the absolute right to life was rejected, the criteria was then “a matter of degree”. Treatment should be withheld only in extreme cases but Taylor suggested that these cases would be where the child in question, if capable of exercising sound judgment, would consider the life tolerable under the proposed treatment (per Taylor LJ, Re J (A Minor), at at 55 and 383). Taking these judgements into account, the Court in Portsmouth NHS Trust v Wyatt reached the conclusion that it would not be in baby Charlotte’s best interests for her great pain and distress to be allowed to continue if, after she ceased to breathe, she was deliberately resuscitated. In this way, they qualified the Human Rights Act 1998 and the scope of Article 2 ECHR. This qualification did not reflect any particular view of Parliament but instead reflected the views of society, embodied in the professional medical opinion of the doctors. In this way, the judge can be seen to have strived “to ensure that the law constantly reflects changes in society itself” (Harris, 2007, p.1). Whilst it is clear from the way the law develops that the Legislature and Judiciary both strive to ensure it reflects changes in society, its evolution cannot always be described as ‘successful’. As noted, the law must be just and applied justly, without which it has no value (per Mummery LJ, quoted in Flannery, 2006). However, the Legislature can only enact laws that meet with the values of the majority. This means that not everyone will share the same values that the law purports to uphold. For example, society has increasingly recognised the rights of children as being equal to those of adults, and consequently the Children Act 1989 gave children the right to express an opinion about matters affecting their welfare, to which the Court must have regard when deciding issues such as where the child should live. The Act also permits children to apply for court orders in their own right. Certain groups have denounced the Act as ‘a Brat’s Charter’, claiming it undermines parental responsibility and adult power over children (Arthur et al, Unit 24, p.65; Lansdown, 1994). In this regard, the changes that the Legislature makes can be seen to have ‘varying degrees of success’ in that they perhaps go far beyond what was required, empowering children to ‘divorce’ their parents or ‘demanding the right to do whatever they wanted’ (Arthur et al, Unit 24 p.65), not what was originally intended by the enactment of the Act. Further, the Courts cannot apply the law in such a way that goes against the will of Parliament. This means that they may strive to reinterpret or redefine the law to meet changes but there is a limit to how far they can do this. Thus in Cairns and Gamble, the Court, with regret, were not able to extend the definition of the word ‘family’ to assist Miss Cairns in obtain protection of her tenancy under the Rents Act (Reader 3, Reading 36, p.97). The Court was bound to consider the legal meaning of family and could not depart from this, even though society (particularly in the area concerned) would have recognised Miss Cairns as living in a family relationship, albeit without consanguineous ties. It is clearly not always possible for the judge to refine the law to meet changes in society when the degree of change required would go against what Parliament intended. In conclusion, it is clear that the set of enforceable rules that make up our law are ever changing, evolving, being reinterpreted and redefined. We have seen how both the Legislature strives to change the law to meet society’s demands and the Judiciary strives to apply the law as far as possible to meet the values of society as a whole. However, both experience varying degrees of success. Because values are so diverse, changes will not be approved by every member of society. The passage of legislation, from the initial consultation to the final enactment, is sometimes extremely prolonged and complicated - the Deceased Wife’s Sister Act 1907, for example, took 65 years, 46 debate sessions and 18 successful second readings in the House of Commons before it became law (Arthur et al, Unit 24 p.47). Similarly, the Judiciary are faced with the difficult task of applying the law uniformly whilst upholding the quality of justice in their decisions. Even where a conclusion seems morally unjust, sometimes judges are limited in the action they can take, since their role is to apply and interpret, not to make the law. Arthur R. et al. (2007) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University BBC News, Tuesday, 6 November 2007, The UK family: In statistics http://news.bbc.co.uk/1/hi/uk/7071611.stm [Accessed 1 September 2008 via Google using keywords ‘uk typical family’] Diduck, A. and Kaganas, F. (1999) ‘Cairns and Gamble’, Family Law, Gender and the State, Oxford, Hart. ‘Reading 36’, Reader 3, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.97 Harris, P. (2007) An Introduction to Law (7th edn), Cambridge, UK, Cambridge University Press, p. 1 cited in W100 Assessment Guide Part 3 (2008) p.3 Health and Safety Commission (2006) Health and Safety Statistics 2005/6 (online), available at www.hse.gov.uk/statistics/overall/hssh0506.pdf quoted in Arthur R. et al. (2007) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.9 Hutchinson, A. (1988) Dwelling on the Threshold, Toronto, Carswell, quoted in Arthur R. et al. (2007) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.138 Lansdown, G., (1994) ‘Children’s Rights’, in Mayall, B. (ed.) Children’s Childhoods: Observed and Experienced, London, The Falmer Press, p.37; cited in Arthur R. et al. (2007) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.65 Mummery LJ, quoted in Flannery, L. (2006) ‘In the eye of the beholder?’, New Law Journal, vol. 156, no. 7212, pp. 279, in Arthur R. et al. (2007) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University p.155 Cases Portsmouth NHS Trust v Wyatt and Wyatt [2005] 1 FLR 21 Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, [1991] 1 FLR 366
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