TORT LAW AND THE
LEGISLATURE
Themes in an Evolving Relationship
TT Arvind and Jenny Steele
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?
An evolving relationship?
• Five recent (and proposed) statutes
• Defamation Act 2013
• Enterprise and Regulatory Reform Act 2013
• Social Action, Responsibility and Heroism Bill 2014-15
• Infrastructure Bill 2014-15
• Proposals to repeal the Human Rights Act 1998
• Consider in the light of:
• Styles of legislation
• Themes underlying the relationship between tort and statute
Styles of legislative intervention
Introduction, TLTL
1. Amending ‘bad’ rules. Often lawyers take the lead. Eg
FAA 1846; LR(CN)A 1945; OLA 1957
2. 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?
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)
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.
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.
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?
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
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
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.
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?
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?
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?