Duty to maintain the integrity of the law

Phase 2 version:

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

  • 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 [within the constraints of generally acceptable behaviour];
  • 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;
  • shall authorise public funding for disputes on points of law which are formally acknowledged as being unsatisfactory;
  • 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;
  • 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.

 

Phase 1 version:

In a previous contribution in this section – https://constitutionuk.com/post/84153 – I proposed a reform which would allow the courts to demand much higher legislative standards from Parliament. Here I look at the same issue from a different angle and propose that the courts should have a constitutional duty to actively maintain the coherence of the law, and I make some suggestions as to how such a duty might operate.

It's always seemed to me that a primary purpose of law is to pre-empt conflict, so it's somewhat 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 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 – seems to me to be wholly unreasonable.

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 disputable. The more clearly 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 now, 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.

Approaching the question from another angle, it seems incomprehensible that the gatekeepers of the legal system (whose livelihoods come from guiding people through its complexities) seem to be 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, I 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.
  • 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.

I've focused here on duties within the court system but I suggest that, even under the existing system, Ministers have a duty of care to help maintain the integrity of the law and should be held negligent if they allow derelict or incoherent law to persist without attempting to get it reformed. This last point may perhaps offer an opportunity to force reform onto the agenda: a Minister charged with such negligence would have to argue in court that incoherent law is acceptable.

 

edited on Apr 18, 2015 by Malcolm Ramsay

Tom Austin Apr 8, 2015

I still think Malcolm, that 'be required to' is a stumbling block. As much as anything else, I fear traps could be set by the unscrupulous Lawyer to ensnare the unwary - or worst still, embroil (into questions of professional competence) an opponent in a live-action.

Malcolm Ramsay Apr 8, 2015

I'm not sure what you're concerned about, Tom. I don't see why this would be any more liable to cause trouble than anything else which is required of officers of the court. In the short term it would be a (relatively small) added burden but, in the long term, it should make life easier for everyone.

For some reason, since I read your post, I've had two imps whispering in my ears; 'contradiction in terms' says one of them, 'tautologous' says the other. I'm refusing to listen to either of them.

Tom Austin Apr 8, 2015

I'm sure Malcolm that I have said this before...One man's inconsistency is another man's bread and butter. (OK, I have made this up, but...) Nowhere is this more true than in the Legal profession.

It may be that we are considering different orders of mismatch. In any case, given the brain power expended and the hours spent upon the Law, one can hardly imagine there would be a total conspiracy of silence: The truth will out.

But to require an 'Undertaking' from every practitioner, that they will drop everything and attend to this, if soever and whensoever, it may occur, imposes an impossible burden.  

Consider: Such a forum exists within the Dictionary division of the OUP, should every novelist, journalist, professor of English etc. be required to report on every neologism, every split infinitive, (Oh, I could go on, as you know by this time.)? Under threat to their livelihoods?

Malcolm Ramsay Apr 8, 2015

Who's suggested that they must drop everything and attend to this? It'll be another duty alongside the others and the requirement is only to file a report. I wouldn't expect regulators to demand unrealistic levels of compliance; as far as I'm concerned, pragmatism is a well-established principle of law.

But I've edited it to say 'serious incompatibilities and inconsistencies'. Are you more comfortable with that?

Tom Austin Apr 8, 2015

Malcolm, I'm all for reducing trivialities that may clog-up the system.

I am also a little nonplussed that you will attend to anything but that thing I bring up: Requirement.

Let's leave it for now, on the high-note of 'serious'. I am with you in this generally, but surely we both want to hear from the other subscribers.

Malcolm Ramsay Apr 8, 2015

As I said in my initial reply, Tom, I don't see why this would be any more liable to cause trouble than anything else which is required of officers of the court. If you want me to attend to it more than that, you're going to have to make your objection clearer. Why exactly do you regard requirement as a problem?

Yes, it would be good to hear any views others have on the proposal.

Tom Austin Apr 8, 2015

'Requirement' is simply too strong a term. Below is a link to a pdf of The Bar Standards Board Handbook. The strongest term they use is "obliged". Why not, "obligated to report..."?

https://www.barstandardsboard.org.uk/media/15...ok_jan_2014.pdf

Malcolm Ramsay Apr 9, 2015

Thanks, Tom. I'm not sure what the distinction is, but I'm happy with 'obligated' and have edited it accordingly.

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Ian Smith Apr 8, 2015

I continued to be very keen to see this idea go forward, as I belive that it may help resolve legal uncertainties outside of and in a way which will really benefit potential litigants.  Lawyers act under a large number of professional constraints and duties, in relation to their clients, the courts and society at large and the duty/obligation suggested in this idea would I think probably count as a relatively easy and pleasurable duty to fulfill.  I look forward to seeing a draft clause.  Kind regards, ian

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