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What area of law needs reforming?

Ok it's a question whihc may come up in interviews but still its quite interesting. I'd like to see the 42 day detention proposal scrapped because its a n invasion of civil liberties. Not sure I would use this in an interview though...

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Reply 1

kalokagathia

Anything and everything relating to the Second Company Law Directive; property law offences, inchoate offences, child sex offences; the absolutely huge amount of Tax Law not covered in the Rewrite, plus most of the bits of Tax Law already Rewritten; locus standi of private parties before EU Courts (even under the TFEU as amended)

Reply 2

jaybc

I don't agree with the balance of probabilities liability (civil standard) attached to ASBO's. An ASBO is a 'criminal' sanction and as such, in my opinion, should carry the criminal standard of proof, rather than the reduced civil standard.

In fact, I'd probably scrap the ASBO altogether because it doesn't seem to be solving the problem of anti-social behaviour, instead it has become a bit of a joke and is seen as a 'badge of honour' amongst urban gang cultures.

I'd also like the UK to have its own written constitution, particularly if the HRA is to be repealed. Our Commonwealth countries have them and indeed we helped draft them, but somewhere along the line we forgot to draft one for ourselves.

Reply 3

Lewisy-boy

I'd agree almost word for word with what Kalok said, especially the second company law directive. But I'd add to the list a change to the law on charitable/public purpose trusts - I'd adopt the proposal of Lord Cross in Dingle v Turner that the validity of a purpose trust should be divorced from the question of its fiscal privileges, for almost the exact reasons he has proposed both in that case and writing extra-judicially.

Reply 4

kalokagathia

Lewisy-boy

Hahahaha.. I honestly came on here just now intending to post exactly that. Great minds eh? :biggrin:

Reply 5

kalokagathia

Oh, and of course what will shortly become Criminal Justice and Immigration Act 2008, ss.62-65..

Reply 6

kalokagathia

jaybc

Actually, the House of Lords has held that the criminal standard of proof applies with ASBOs for precisely that reason: R (McCann v Crown Court at Manchester) [2002] UKHL 39

Reply 7

Sophie_10

the offences agaisnt the person act 1861 - that's what are teacher always tells us anyway! :wink:

Reply 8

kalokagathia

Sophie_10

the offences agaisnt the person act 1861 - that's what are teacher always tells us anyway! :wink:

The OAPA 1861 is always used as an example of law ripe for reform, but I'm not convinced. Yeah, a few things could be ironed out (the bizarre differences in terminology between s.18 and s.20, the lack of a coherent hierarchy of sentences etc.), but frankly the reforms which the Law Commission has been proposing periodically over the years are not much of an improvement on what we have at the mo.. I think there are far more obvious areas for reform (even in the narrow area of offences against the person - the law on provocation, diminished responsibility and insanity for example..)

Reply 9

kalokagathia

..and how could I forget the law on co-habitation.. (*ahemBaronessHaleshouldlistentochancerylawyerswhoactuallyhaveaclueLordNeubergerforexamplecough*)

Reply 10

kalokagathia

...and the relationship of the law of privacy to the law of defamation to the law of freedom of expression..

Reply 11

kalokagathia

Put it this way: the OAPA 1861 shows greater drafting adeptness and proximity to the current ideal of good law in its particular field than the Fraud Act 2006, much of the Sexual Offences Act 2003, the Serious Crime Act 2007, elements of the Companies Act 2006 (albeit within the constraints of the 2nd Co Dir) and 90% of the utter nonsense that the Law Com churns out every year..

Reply 12

Edmund Blackadder

Speaking broadly, I'd support a repeal of the blasphemy and religious hatred laws. I'd also look at enshrining the right to criticise and insult religions and life styles etc... (but not races).

I'm almost an absolutist on free speech though.

Reply 13

Wangers

Family law - the man should have the right to ask for an abortion. If the woman refuses, then she should lose all rights to child maintenance.

Reply 14

Lewisy-boy

Haha the law on cohabitation, I assume you mean Stack v Dowden etc, I just had my trusts exam and evaded the essay on it like the plague :biggrin:

. As for charities, I do indeed think that and was ready to rip into it in trusts had it come up, but it didn't :frown:

. I also agree with you on the OAPA and the law of privacy comments...

I'm going to put out there that we should recognise 'remedial constructive trusts' as they do in the USA and Canada because, although they're discretionary, they're undoubtedly more appropriate for dealing with the 'family property' situation than the traditional resulting/constructive trusts which focus too exclusively on intention and various other areas also, notably the use of constructive trusts in AG for HK v Reid and various other cases for breach of fiduciary duty which I'm sure all trusts lawyers are familiar with (and in the context of restitutionary remedies - restitution is ****ing hard and my last exam, not looking forward to that)!

Sorry for my focus on trusts, but I had that exam today ... will come up with something for Insolvency as that is my next exam, but there isn't that much rubbish on our syllabus: except perhaps for extended retention of title clauses: we should expressly make them registrable under statute and allow them to have effect, in my opinion.

Reply 15

jaybc

kalokagathia

Actually, the House of Lords has held that the criminal standard of proof applies with ASBOs for precisely that reason: R (McCann v Crown Court at Manchester) [2002] UKHL 39

Just shows how long ago I studied criminal law :redface:

(McCann was at Court of Appeal stage, who decided that a flexible burden, standard could be applied, according to severity of anti-social behaviour). I stand corrected - good to know that HOL get it right sometimes :smile:

Reply 16

kalokagathia

Lewisy-boy

I'm going to put out there that we should recognise 'remedial constructive trusts' as they do in the USA and Canada because, although they're discretionary, they're undoubtedly more appropriate for dealing with the 'family property' situation than the traditional resulting/constructive trusts which focus too exclusively on intention and various other areas also, notably the use of constructive trusts in AG for HK v Reid and various other cases for breach of fiduciary duty which I'm sure all trusts lawyers are familiar with

Ooooooooooooo.. Controversial! So you'd just allow them in the family property context and let a schism develop or introduce them in the wider law? Personally I think Birks was absolutely right ([1997] NZLR 623: "a nightmare trying to be a noble dream" /"rightlessness implicit in discretionary remedialism") and Everton J is absolutely wrong (London Allied Holdings v Lee [2007] EWHC 2061 (Ch)).

As Lord Neuberger points out with characteristic adroitness in Stack v Dowden, just go back to the basic first principles of equity: it's amazing how 99% of contemporary 'equitable problems' actually have a very easy solution based on orthodox principles if you think outside the box slightly..

Reply 17

kalokagathia

Rimer J's purported 'critique' of Lord B-W in Westdeutsche in Shalson v Russo [2003] is a good example of how not to think outside the equitable box..

Reply 18

jaybc

Wangers

Family law - the man should have the right to ask for an abortion. If the woman refuses, then she should lose all rights to child maintenance.

Bloody hell Wangers, thought I was out of date, but you take the biscuit. If you don't want babies, wear a condom, have the snip or keep your pecker in your pants. :p:

Reply 19

Lewisy-boy

Well I'm of the opinion that remedial constructive trusts can be useful in limited areas, as Lord Browne-Wilkinson said in Westdeutsche, I certainly wouldn't allow them in all areas as that would just be asking for more Lord Denning's who love little old ladys... I just like to throw the controversial into my exams because hardly anyone argues that line and tend to go for the safe option - to be truthful, remedial constructive trusts can be pretty dubious but I've looked at some American cases and they can allow for fairer results than, for example, Lord Bridge's suggestion in Lloyds Bank v Rosset that the claimant in Eves v Eves would have got nothing had it not been for the 'express bargain common intention' in that case which, as I'm sure you're aware, was found on the basis of an excuse which is capable of extreme criticism, most notably by Gardner! It seems especially harsh given that such 'non-financial' contributions can contribute substantially in value to the life of the parties - see the case of Burns v Burns for a particularly telling and harsh example!

I must admit I'm a fan of Lord Neuberger as much as you are, Baroness Hale ... what a crock of crap, just shows what women in such high positions do (ooooooooooooooh now THAT'S controversy for you).