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EVERYDAY LAW: Law reform must match the times


marciadottin, [email protected]

EVERYDAY LAW: Law reform must match the times

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“The truth is that law reform, if it is to be done properly, is a slow, complex and time-consuming business, involving major research to ascertain what the existing law is; what are its defects; what has been done to correct those defects in other jurisdictions; and stemming from that, what tentative solutions can be suggested to meet these deficiencies; followed by consultation with professional bodies and other interested groups; and finally the framing and submission of concrete proposals for reform.” – Professor KCT Sutton, former member of the Law Reform Commission of New South Wales.
Law commission Law reform, in its widest sense, can be viewed as any changes to existing laws whether they be instituted by Parliament or through the decisions of the courts, which can sometimes result in changes to the common law.
The above quotation speaks to reform initiated or facilitated by a reform commission. It is this aspect of law reform that I propose to discuss in this article.
Typically, the law reform agenda is set by political parties. A political party will tend to focus its energies on making legislative changes which permit it to achieve its policy goals. The result of this process is that areas of the law that may need improvement are left untouched for long periods since there is no comprehensive review of the broad areas of the law.
In 1965, acting on a pledge made in the elections by the British Labour Party in the previous year, the Law Commission Act 1965 established the Law Commission in Britain as an independent body with the specific objective of keeping the law as a whole under review and making recommendations for reform.
The Law Commission was established as an independent body with full-time members. Its main remit was law reform.
The model of a permanent commission with full-time members who keep the entire body of laws under review was duplicated in several countries.
For example, commissions were established in several states in Australia, in New Zealand, Ireland and other countries that shared with Britain a common law tradition.
Typically, commissions are made up of judges, lawyers and academics. They will usually investigate topics assigned to them by the attorney general.
The reason for setting up a commission to oversee the law as a whole is captured in the following extract from the attorney general of Ireland when the Irish Law Commission was being established:
“If a community’s laws become inadequate for the functions for which they were designed, if they become obsolete, or are too numerous, or over-refined by judicial interpretation, then cases of individual injustices will multiply and society as a whole will suffer.
“Government in a fast-changing world should ensure that the laws are kept under constant review and are regularly and systematically reformed.”
The value of having a commission is seen by the significant changes of the law that originated from recommendations in the very comprehensive report of the National Commission on the Status of Women (set up in 1976 by the Barbados Labour Party Government). That commission had a specific focus, as its name clearly suggests and resulted in many changes in the law, including the current family law regime.
The establishment of a law commission in Barbados with an emphasis on law reform, perhaps using the experience of a retired judge or an experienced legal draughtsman as chairman, is worth serious consideration; for there is little doubt that some laws have become inadequate and others obsolete.
Additionally, reforms are needed to meet the demands of a modern society.

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