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TORT LAW AND THE LEGISLATURE Themes in an Evolving Relationship TT Arvind and Jenny Steele.

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Presentation on theme: "TORT LAW AND THE LEGISLATURE Themes in an Evolving Relationship TT Arvind and Jenny Steele."— Presentation transcript:

1 TORT LAW AND THE LEGISLATURE Themes in an Evolving Relationship TT Arvind and Jenny Steele

2 Tort Law and the Legislature (2013) How does the work done by the contributors affect our reading of the evolving relationship between legislators and the courts, where tort law is concerned?

3 An evolving relationship? Five recent (and proposed) statutes Defamation Act 2013 Enterprise and Regulatory Reform Act 2013 Social Action, Responsibility and Heroism Bill Infrastructure Bill Proposals to repeal the Human Rights Act 1998 Consider in the light of: Styles of legislation Themes underlying the relationship between tort and statute

4 Styles of legislative intervention Introduction, TLTL 1. Amending ‘bad’ rules. Often lawyers take the lead. Eg FAA 1846; LR(CN)A 1945; OLA Carving out new exceptions/ interests 3. ‘Political’ changes to tort law. Might these disrupt the underlying pattern? 4. Multiple contexts and spread of concepts: legislating legal principle?

5 Styles of legislative intervention 5. Procedure and remedies: may affect the entire shape of tort law in practice (compulsory insurance regimes; costs legislation; historical accounts of courts and the rise of the action on the case) 6. The relationship with regulation: alternate remedies / administrative processes / regulatory control may affect tort remedies (Marcic; Health and Safety law; river pollution; Highway code)

6 Themes from the essays Narrowness if legislation is excluded from scope. Social, political, as well as conceptual elements overlooked. Legal evolution. Omission of statute gives a distorted sense of how the law changes over time – and how much its core principles change. The impact of practicality and social/ political change on legal principles and concepts.

7 Themes from the essays Generality and particularity. Is legislation conceived of as achieving only specific, particular changes, leaving the structure untouched? (Contrast eg HRA 1998 – diffuse influence) Public well-being. The law of tort does not stand apart from issues of common, public well-being.

8 Recent developments? Naturally, the longer-term influence of current change cannot yet be traced. But what sorts of relationship between courts and legislature is illustrated by subsequent developments?

9 Defamation Act 2013 Partnership between courts and legislator More clarity and decisiveness achievable by statute, but courts showed the direction to go Corporate defamation and procedural changes: beyond the courts Eg Reynolds: courts could not quite realise its potential Note role of HRA (legislation!) in judicial developments; not so much in legislative solution

10 s.69 ERRA Out of sympathy with 150 years of development in courts and legislatures Resistance in HL: few lawyers involved in the Bill and predecessor Report ‘Political’ in the sense of pursuing a party political mandate, not within the ‘styles’ of intervention set out

11 SARAH Like s1 CA 2006 – seems to declare an existing position Does this alter the balance between courts and legislature? Criticised for legislative time-wasting: ‘declaratory’ legislation Can courts develop the law satisfactorily? Will it have unexpected influence? Or be narrowly read, like s.1.

12 Infrastructure Bill Substantive intervention in law of trespass for particular purposes Compensation regime Resistance: criticised as undemocratic intervention in individuals’ rights Private law as rights after all?

13 Proposed replacement of HRA Direct intervention into how courts should reason with Convention rights Interaction with Strasbourg jurisprudence in tort context has been evolving What would be the effect of this on the law of tort?

14 A working relationship? At its best: Legislation contributes to collaborative, empirical, and democratic evolution of the law “One complex phenomenon” But reality can bite back: Narrowness / breadth of motives underpinning legislation Narrowness / breadth of contributions to legislation Narrowness / breadth of interests protected Narrowness / breadth of possibilities taken into account in drafting The eventuation of the unexpected Broader lessons?


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