Looking at the Law Commission’s web-site recently (as you do) I noticed that they had published the text of a recent lecture (20/02/05) – Law Reform and Human Rights – Scarman’s Great Legacy, by the Hon Justice Kirby (an Australian Judge). So in rash moment I downloaded it and printed it out.
It was most interesting. Kirby compares Lord Scarman to Lord Denning as typifying two different judicial approaches – Scarman judging very much by the letter of the law on the basis that change should come about by Parliament amending the law, as opposed to Denning’s view that Judges had made the common law in the past and could make and remould it for the present and for the future.
However Scarman was not just a boring Judge, judging only by the letter of the law. He accepted that in many aspects the law is deficient and worked to improve this. The lecture looks at two great initiatives championed by him.
The first is the Law Commission. This was set up in 1965 as an independent body to continually review, reform and codify the law, and Scarman was its first chairman. The Law Commission is of course very active today and does excellent work (in my own field it has been looking to review housing law). However there are problems, identified by Kirby. One is the sheer volume of published law nowadays, and the fact that there that there is no guarantee that the carefully considered proposals for reform will actually make it onto the statute book. Another is that powerful ministers often like to have control over the law making process themselves.
The other great reform, championed by Scarman, was an enforceable statement in English law of fundamental human rights. This finally came to fruition as the Human Rights Act in 1988. Judges can now use this to help them ‘attend to injustices that Parliament have created thoughtlessly or overlooked’. However unlike the Denning approach, this is one enshrined in statute.
This is a ridiculously brief overview of an extremely erudite lecture which runs to some 64 pages. However if you have found it interesting I would suggest you read the lecture for yourself, which can easily be downloaded from the Law Commission home page. It is written clearly in an approachable style and will be particularly interesting for anyone interested in Law Reform and its history.