At the symposium last Friday where Hugh Beale was presented with a fine book of essays in his honour (see preceding post) Andrew Burrows spoke on “Alternatives to Legislation: Restatements and Judicial Law Reform”. He rather favoured such alternatives. I would like to suggest that they are very inadequate alternatives to legislation as law reforming tools.
What is meant by a restatement of an area of the law? “Restatement” is an ordinary word of the English language and tells you nothing about form, method of production or orientation. It just tells you that the law is being stated again. It can be restated in narrative form or in the form of rules and commentary. It can be restated by a single author (with or without an advisory group) or by a team of authors (with or without an advisory group). None of these is a new technique. It can have a regressive orientation, deploring every attempt to change an established rule or classical doctrine, or a progressive orientation, favouring a reformist interpretation whenever possible. It was clear from Andrew’s presentation that the type of restatement he had in mind was one consisting of rules and commentary, produced by an academic lawyer with the aid of an advisory committee including judges and practitioners and with a progressive orientation. He has produced one such restatement – A Restatement of the English Law of Unjust Enrichment (2012) – and he is working on another, on the English law of contract. He described the orientation as follows.
What is being aimed for is the best interpretation of the present law. In some limited circumstances (perhaps less limited in the law of unjust enrichment than the law of contract because the latter is more settled), one may require a decision of the Supreme Court to lay down the law as set out in the Restatement. In other words, on some matters the Restatement takes a principled interpretation of the law that may be regarded as going further than the existing cases. The commentary makes clear where this is so.
This is a most worthy enterprise – a great thing to do and a great contribution to legal thinking – but can it be regarded as an adequate alternative to legislation? I do not think so. Such a restatement (with or without a capital R) cannot of its very nature change the law. It can just point – no doubt in a very informed, well-reasoned and persuasive way – to what might be desirable reforms. And even the role of a sort of support for progressive and principled judicial interpretations of the law can be usefully played, as Andrew concedes, only in those areas of the law which are not largely statute-based. The reforms suggested have to lie “within the interpretative reach of the courts”.
On judicial law reform Andrew confessed “to not being a great fan of legislative reform of the non-criminal common law”. His main arguments were first that it can be very difficult for time to be found for law reform legislation and, secondly, that legislation “may freeze the law in a way that makes desirable change, and the correcting of mistakes, difficult”. Neither argument is convincing. It is true that it can be very difficult to find time for legislation designed to reform areas, or even small points, of traditional private law but this is a fault of the political system which could be remedied. It has nothing to do with the inherent merits or demerits of legislation as a law reform technique. And legislation to correct mistakes can be passed when the government wants it to be passed. Correction of mistakes by judicial means (if possible at all) has to wait until a suitable case comes up and gets, at considerable expense, to a suitable level. This is even more of a problem in a small jurisdiction than in a big one. Legislation has other obvious advantages over judicial law reform. It can do more: it can repeal statutes, abolish settled rules of law, set up regulatory and administrative structures and provide for sanctions of all types: it can restructure whole areas of the law: it can make consequential changes in related areas, whereas a court by contrast is confined to the issue before it. It can be better informed on the wider, non-legal context: it can take more background considerations into account: it can proceed on the basis of scientific research, public consultation and debate: it can take account of the points of view of different interest groups. It can proceed on overtly policy-based grounds: it does not need to pretend to be interpreting or selecting from what has gone before. And it is almost always prospective in effect, very often, indeed, setting some future date as the date of commencement of the new law: a court in theory is just declaring what the law has always been.
Perhaps, however, I am assuming too much hostility to legislation on Andrew’s part. After all, he confines his remarks expressly to the non-criminal common law – a comparatively small part of the law which actually governs people’s lives on a day to day basis. Indeed his main point was that if judges have a chance to move the law forward in a way which they think is desirable they should seize the opportunity and not say that the matter is one for the legislature: it should not be assumed that legislation will be easy to obtain. I would agree with that, although the scope for this sort of judicial law reform is limited and caution is needed because there is always the danger of unintended consequences. A reform which seems useful in the narrow context of the case being argued could have implications in a wider social context of which the court is unaware and cannot be expected to be aware. There is also the problem of retrospectivity noted above..
In fact the last part of Andrew’s stimulating contribution dealt with the converse situation: where a legislative agency has the chance to recommend moving the law forward but fails to seize the opportunity and says that the matter can be left to the courts. This happened in relation to the reform of the English law on the defence of illegality. The Law Commission in a consultation paper on this subject had provisionally favoured legislation to give the courts a “structured discretion” to decide on the effect of illegality on a claim based on contract, unjust enrichment or trust. This would have enabled the courts to take various factors into account in order to ensure that the illegality defence only applied where it was a just and proportionate response to the illegality involved in the light of the policy considerations underlying it. Later, in their report, they concluded that, with one limited exception, reform could be left to the courts.
Andrew Burrows himself was initially doubtful whether reform of this nature was in fact within the interpretative reach of the courts but, when he wrote his contribution to the book, was greatly reassured by two decisions of the English Court of Appeal which followed the Law Commission’s recommended approach. Unfortunately for his thesis that this was “a great example of what can be achieved by judicial law reform” he had to inform the symposium, with some wry amusement, that the Supreme Court had given a judgment on one of those cases on 29 October 2014, only nine days before the symposium. See Les Laboratoires Servier v Apotex Inc  UKSC 55. The Court reached the same result as the Court of Appeal but did so on the ground that the conduct in question (the infringement of a Canadian patent) did not amount to an illegality as that word was understood in this context and not by saying that it was an illegality but that its effects could be modified in the exercise of a policy-based discretion. Lord Sumption, with whom Lord Neuberger and Lord Clarke agreed, went out of his way to pour cold water on the discretion-based approach recommended by the Law Commission and used by the Court of Appeal.
This decision is a fine example of a clever application of the law to produce a reasonable result and of a useful clarification of the meaning of “illegality” for the purpose of the illegality defence but it is certainly not a vindication of the Law Commission’s decision to leave comprehensive reform to the courts. It reinforces my view that legislation is the tool of preference for law reform.