the law is never static; it is always changing, being interpreted or redefined

This purpose of this essay is to analyse the quotation “…the law is never static; it is always changing, being interpreted or redefined, as regulators and judges strive, with varying degrees of success, to ensure that the law constantly reflects changes in society itself”. In order to do this, there will be a consideration of the law and its main sources as well as discussion of how these laws can and must change to reflect the needs of society. There will be an assessment of the relationship between the law and social change and an evaluation of the success of regulators and judges to ensure that the law reflects these changes.

Firstly, consideration of how laws in the UK are made; Laws made by Parliament, Acts, start in various ways as Bills presented to Parliament and must go through various stages of approval, by both the House of Commons and the Lords and formally agreed to by the reigning monarch, in the form of Royal Assent in order to become part of the UK Law or change an existing law.

The majority are Public Bills, presented by a minister, dealing with matters affecting the general population. Private Members Bills are similar except they are presented by MPs or Lords who are not government ministers. A minority of these become law as less time is allocated to them but, by creating publicity around an issue, they may affect legislation indirectly. Private Bills are usually promoted by organisations, such as local authorities or private companies. These bills can only change or over-ride the law towards a specific minority rather than the entire country. They can be opposed by people who would be directly affected by the outcome for example. if a company wanted to build a new railway line. Most government bills become Acts of Parliament while very few of the many private Bills pass through.

Bills originate in various ways: Party manifestos where a government promises something, such as economic stability or improved schooling, as part of its election campaign and then implements its promise with a bill. Bills can arise in response to national emergencies or in response to new technology such as human reproductive technologies.

There are many influences operating on Parliament during the legislative process including Law commissions, Royal commissions and pressure groups. The law commission established by the Law Commission Act 1965 is an independent body which reviews UK law and recommends reforms, suggesting abolishing old laws or amendments to existing laws, for example the 1956 Royal Commission on Marriage and Divorce (p58, Block 7, Justice), Pressure groups have the advantage of allowing particular concerns to be raised within the political system but they may clash with authorities and even stop beneficial change.

EU law despite not having been approved by the UK parliament still has an influence over UK law and, where relevant, the UK is bound by that law and cannot make conflicting laws. The UK is also party to the European Convention of Human Rights which has been assimilated into English law covering basics such as the right to life, and anti-discrimination. Any new legislation must be compatible with the Convention which can be problematic.

Historically, the judiciary has affected the law in the UK. Judges would travel the country ensuring that the law was implemented becoming a ‘common law’ rather than regional law, bringing about a consistency and fairness to the law. The law develops in the courts over time, case by case and through established practice or ‘precedent’ known as stare decisis meaning ‘to adhere to decided cases‘. The advantage of precedent is that previous interpretations of laws can be cited ensuring consistency although sometimes this is a disadvantage as it does not allow for change for example in the law concerning marital rape. Judges, who are practicing the law, are able to ensure that a statute is interpreted correctly, giving a flexibility without waiting for Parliament’s lengthy processes. This ‘statutory interpretation’ influences future use of the law and help it to adapt in a workable way, keeping up with modern social developments. While this system leads to the fairness and clarity of statutory interpretation judges are not elected but have an effect on our laws and so on our lives.

The UK courts are split into a hierarchy which practices the law at all levels, interacting with the general public across both civil and criminal matters. The hierarchy system means that decisions can be checked or overruled by higher courts to take into account changing social conditions. This starts with the Magistrates courts, the Crown and County Courts, High Court, Court of Appeal and finally the House of Lords. Each court is bound by the decisions of its superior court and must follow the higher courts principles in future cases. The House of Lords’ decisions are binding over ...

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The Law-making system in England and Wales is based on a democratically elected Parliament so that the general public can have an effect on changing laws. A general election every five years ensures that the government does not remain in power against the wishes of the people. There are flaws to this - people vote according to manifesto promises but these are not always adhered to after election to government as they are not legally enforceable. However, the government must account for broken promises. The election system is not proportionally representative so a government may not have a majority of public support despite winning a majority of constituent seats. This means that a powerful government can push a law through despite having the support of a minority of the country. Occasionally the government tries to keep its manifestos promises but the lengthy procedures make it impossible. The system does allow for a speedier procedure if necessary in response to an unexpected event for example, The Human Reproductive cloning Act 2001 which was enacted in just nine days.

As befits a democracy, laws are made after extensive debate which should ensure that the law is unambiguous and necessary. However, this system can be a very time-consuming process delaying much needed new laws or changes to laws. Sometimes, because MPs are not necessarily lawyers, they do not word the law properly leaving it open to interpretation. This complex system can be very long-winded, sometimes taking years, and good bills can fail to become law, sometimes just because they run out of time. This is particularly true of private bills which are given less time than public bills although they often achieve their aim by drawing attention to the issues often on behalf of particular interest groups raising concerns that may not be nationwide.

Delegated legislation forms a large part of the legislature. This has the advantage of being presided over by experts and they are quick to introduce and easy to amend. The disadvantage is that it is made by non-elected people but it is under both parliamentary and judicial control so it cannot go beyond its remit. However, the sheer volume along with highly technical wording means that this form of legislature is rarely questioned

Family law is one area where there has been considerable change in recent years in order to incorporate the changing shape of society with such issues as non-marital cohabitation, same sex partnerships, divorce, adoption, and fertility treatment. These changes in society affect such issues as inheritance law and taxation as well as on wider issues in criminal and civil law. There was much pressure, from groups such as The Odysseus Trust, to confer legal identity on non-married couples giving them the same rights as married couples. This, along with such cases as Anna Homsi’s, (p52, Block 7, Justice) led to the Civil Partnerships Bill 2002 dealing with the ‘legal anomolies between married and unmarried couples’. However, when the Bill became law in 2005, it only covered same-sex relationships maintaining that heterosexual couples could marry while same-sex couples were not offered this legal protection. Following recommendations from the Law commission, a draft bill again addresses the concerns of co-habiting heterosexual couples.

This century has seen many changes in Divorce law, including abandoning the need to apportion blame. As the moral standpoint on marriage and divorce, along with equal rights for women, has evolved so the law on these subjects has had to follow suit. One of the reasons why the law-makers are reticent to change laws such as these is the concern over whether society changes to reflect the law or law changes to reflect society - does making divorce easier legally lead to more divorces?

There are many medical and technical innovations necessitating changes in the law. For example the advent of DNA testing to prove parentage as in the case of Keith and Andrew (p67, Block 7, Justice). The changes in society during the 1960’s led to the Adoption Act (1976) which allowed adopted children to search for their biological parents. The advent of assisted reproduction has brought this issue back into the limelight particularly as infertility remains a somewhat taboo subject. The problems are confounded by the laws reluctance to trespass too far into people’s private lives but this is a moral and political issue which will need to be addressed in order to safe guard the rights and obligations of all involved including the children particularly as modern society puts more importance on parenthood and the rights of children.

The legal issues concerned with human reproductive technology are beset with moral and political debate. This is an area where the law has been unable to foresee the rapid technological advances over the last 25 years in particular fertility treatment and embryo screening and such emotive issues as designer babies, saviour siblings and the creation of life.

A central issue to the debate over these embryonic technologies has been determining when a legal personality starts before or after birth - legal rights before birth are limited. The Government introduced the Human Fertilisation and Embryology Act 1990 to give legal control over the use of embryos. Allowing embryonic research so as to help eradicate illnesses or protect the embryos as ‘having the capacity for life’ involves moral, religious and political issues which must be combined to provide legal guidance. The House of Lords case AG Reference (No 3 of 1994), determined that an unborn child ‘does not have a distinct legal personality’ so an unborn foetus is not a ‘legal person’ becoming a legal person only once born. This needs to be considered along with the Congenital Disabilities (Civil Liability) Act 1976 which helps to determine whether duty of care be owed to someone who legally does not exist.

The developing technology was initially regulated by the medical profession but it soon became clear that legislation was needed to provide parameters on what should be permitted. There were a miriad of moral and ethical issues to be considered and there were many organisations wanting involvement in discussions including the medical profession, religious and child welfare organisations and infertile couples. In 1987, there were heated debates in Parliament when the proposals of the Warnock committee were finally presented following Private members bills, reports, consultations and a white paper ‘Human Fertilisation and Embryology’. Despite some MPs wanting to ban embryonic research, the Human Fertilisation and Embryology Act, 1990 was eventually passed but, as it was based on 1984 research, much of the act was outdated. The Human Fertilisation and Embryology Authority (HFEA) was created to keep the law flexible in light of fresh medical advances and to help the courts to apply the 1990 Act. The flaws in the law have been challenged by individual appeals, particularly over consent, as in the case of Diane Blood. (DVD, Unit 25 Activity 2) who, after seven years of legal battles, was allowed to take her dead husband’s sperm to Belgium for fertility treatment, subsequently giving birth to two sons. She then went on to challenge her right to put her husband’s name on the birth certificates.

Another way in which the law has altered to fit a changing society is with the introduction of the Corporate Manslaughter Act which was needed to respond to societies dissatisfaction with the lack of successful corporate prosecutions such as the case concerning P & O’s Herald of Free Enterprise where the law was not sufficient to bring a successful prosecution despite a coroners verdict of ‘unlawful killing’. It has taken a long time for the Act to come to fruition and there remains controversy over its effectiveness and limitations. Changes in society have meant that incidents which used to be considered accidents are now viewed as someone’s fault. This means that the law must cover the accountability of organisations and their failings. The law has developed a mechanism, vicarious liability, making employers responsible for the actions of their employees and giving legal personality to a corporate entity. This corporate criminal accountability remains controversial. The idea of a corporate legal personality developed with the changes in social perception and the Bill makes provision for the offence of corporate manslaughter holding companies responsible for certain deaths. The Police, along with the Health and Safety Executive can investigate if a work-related death was the result of an individual’s negligence and, if that person held a senior position in the company, whether the company or organisation could also be considered guilty as in the case of the Lyme Bay canoeing disaster where OLL Ltd became the first company to be convicted of corporate manslaughter leading to a custodial sentence for its MD. Following this Act, it is still difficult to determine the line between an offence under the Health and Safety Act and one under the Corporate Manslaughter Act particularly as one of the main impacts of the act has been to highlight the importance of complying with the Health and Safety Act, which has been continuously updated since its inception in 1874.

In conclusion, the law-making system in England and Wales is never static because society is constantly changing and evolving so the law is under continuous change by both elected and non-elected people. Many of these changes are brought about in response to social changes which render some laws outdated as with the old laws against theft which did not incorporate identity theft. There are systems in place to ensure clarity and feasibility as well as evolution. All of this input should ensure as fair and reasonable a system as possible. Law cannot remain reliant on tradition and sometimes there is an urgent need for either new laws or changes to the older laws. As society changes the law must change to accommodate it. The law must meet the challenges and needs of modern society taking into account not just social issues but developments in medicine and technological innovations both of which raise moral as well as legal issues.

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