strengths of the system of judge-made law is its flexibil-
ity; judges can adapt or re-work the rules of common
law or equity to meet changing circumstances. Although
modern judges have shown themselves willing to take a
bold approach to the task of keeping case law in tune
with the times, there is a limit to what can be achieved.
Judicial law reform is likely to lead to haphazard, unsys-
tematic changes in the law. Legal change becomes de-
pendent on the chance of an appropriate case cropping
up in a court which can effect change. Furthermore, our
adversarial trial system is not the best vehicle for invest-
igating the likely consequences of changing the law.
Judges cannot commission independent research or
consult interested bodies to gauge the effect of the pro-
posed change. The limitations of a system of judge-led
law reform led to the setting up of an official law reform
agency, which, along with other methods of effecting
change in the law, will be considered below.
The sources of legal change
Ideas for changing the law flow from many sources:
Official law reform agencies
The main agent of law reform in England and Wales is
the Law Commission, which was established by the Law
Commission Act 1965. The Commission consists of a
Chairman, a high court judge who may be appointed
for up to three years, and four other Commissioners,
who may be judges, solicitors, barristers or academic
lawyers and may be appointed for up to five years. The
Commission’s job is to keep the law as a whole under
review, with a view to its systematic development and
reform. Its statutory duties include:
■codification of the law;
■elimination of anomalies;
■repeal of obsolete and unnecessary enactments;
■securing a reduction in the number of separate
enactments;
■simplification and modernisation of the law.
A Law Commission project starts life by appearing as
an item in its programme of work which is approved by
the Lord Chancellor (who is also the Secretary of State for
Justice). The Commission’s full-time staff of lawyers then
prepare a working paper containing alternative proposals
for reform. Following consultations with the legal pro-
fession, government departments and other interested
bodies, the Commission submits a final report on a firm
proposal for reform accompanied by a draft bill. The Law
Commission’s programme of work must be approved
by the Lord Chancellor. A Ministerial Committee of the
Law Commission advises the Lord Chancellor on the Law
Commission’s proposed programme, monitors the Law
Commission’s progress in delivering the programme
and reviews actions taken by government departments
in response to Law Commission Reports.
Another law reform agency is the Civil Justice Council
which was set up under the Civil Procedure Act 1997,
following recommendations by Lord Woolf in his 1996
report, Access to Justice. Membership of the Council must
include members of the judiciary, members of the legal
professions, civil servants concerned with the administra-
tion of the courts, people with experience and knowledge
of consumer affairs and the lay advice sector, and people
able to represent the interests of particular kinds of litig-
ants, e.g. business or employees. The Council has a duty
to keep the civil justice system under review; to consider
how to make the civil justice system more accessible, fair
and efficient; to advise the Lord Chancellor and the judi-
ciary on the development of the civil justice system,
referring proposals for change in the civil justice system
to the Lord Chancellor and the Civil Procedure Rules
Committee; and making proposals for research.Government departments
Each government department is responsible for keeping
the law in its own field of interest under constant review.
Where issues involving policy consideration rather than
technical law reform arise, ministers may prefer to set
up a departmental committeeto investigate the subject,
rather than leave it to the Law Commission. Particularly
important or controversial matters may lead to the set-
ting up of a Royal Commissionby the Crown on the
advice of a minister. The dozen or so members of a Royal
Commission usually reflect a balance of expert, profes-
sional and lay opinion. They work on a part-time basis,
often taking several years to investigate a problem thor-
oughly and make recommendations. Examples of Royal
Commissions include the Benson Commission on Legal
Services (1979) and the Philips Commission on Criminal
Procedure (1981). Royal Commissions and departmental
committees were notable by their absence during the
1980s. The appointment of a Royal Commission onPart 1Introduction to law