Richard Calnan on jurisprudence

Law reform is important. We all need to keep up with change. Even better if we can anticipate it—and better still if we can be involved in the process. We might then be able to influence the direction of the reform; and be better able to assimilate the change.

As a profession, we are not very good at this, at least not in England and Wales.

For many years, I was a member of the financial law committee of the City of London Law Society. One of our principal tasks was to review proposed changes to financial law. We were, however, too often asked to comment on new law when it was too late to make a difference. The policy had been set, the drafting done, and our role confined to the periphery.

Successive UK governments have tried to tackle the reform of secured transactions law in England and Wales. The Law Commission published three substantial papers over a three-year period almost twenty years ago. Its goal was to replace the existing law with a completely new system. The overwhelming majority of practitioners thought this the wrong approach. What happened then and what happened next provides an illustration of the frustrations of law reform and possibilities for change, even reform, of the process.

The committee that I was a member of was heavily involved in those discussions around secured transactions and produced many responses to the Law Commission’s consultation. In the event, the government recognised that there was no consensus of support and the proposals were quietly shelved. Four years of work had achieved precisely nothing.

One conclusion was clear. Practicing lawyers should be involved in the reform process at a much earlier stage. Practitioners can, and should, play a broader role in the development of law reform.

The members of the financial law committee, myself included, decided to give this a try. Our starting point was to decide what, if anything, needed reform in the area of secured transactions. We looked at this, and then circulated a number of papers among interested parties. Our view was that the basic structure of the underlying law worked well but that there were problem areas which could usefully be fixed. We decided to codify the law. Our current law has grown up over a period of four hundred years and contains complications and elaborations which tend to confuse the issues. We set out to smooth those barnacles away. Logic suggested that it would then be possible to create a new law, based on the existing law but clearer, simpler and more accessible.

The code is now drafted and has gone through any number of iterations. The discussions are continuing in typical painstaking, unglamorous fashion. But we have a goal in sight, and that is a proposal for law reform which meets the requirements of those who use it in practice and which has been tested by experts in the field. If we achieve this, we may have set a valuable precedent.

First published in RE: issue 16 (2019)