Society of Legal Scholars Conference 2016 Legislation or judicial law reform: where should judges fear to tread? Lady Hale, Deputy President of The Supreme Court 7 September 2016 James Lee set me a challenge in his paper on ‘The Etiquette of Law Reform’ at the seminar held last year to celebrate 50 years since the creation of the Law Commissions1: why, he asked, was the Law Commission’s competence a factor against judicial development of the law on pre-nuptial agreements in Radmacher v Granatino 2 (or, he might more pertinently have asked, on witness immunity in Jones v Kaney3) but not similarly a factor in the joint ownership cases of Stack v Dowden4 and Jones v Kernott?5 Although generally a respecter of the judicial motto, ‘never explain and never apologise’, this is a fair question and I shall attempt to give it a fair answer. The wider question is ‘when should a judge feel free to develop, change or reform the law rather than leaving it to Parliament?’ In trying to answer the question, please forgive me for concentrating on the cases in which I have been involved. Recently in the Supreme Court There is a tendency, noticeable among some law students, but not among the members of this Society, to think of Stack v Dowden and Jones v Kernott as family law cases, concerned with discretionary property adjustment when an unmarried couple’s relationship breaks down. They were no such thing. They were property law cases concerned with deducing the intentions of the 1 Ch 29 in M Dyson, J Lee and S Wilson Stark (eds),Fifty Years of the Law Commissions (2016) Bloomsbury; see also Ch 20, Andrew Burrows, ‘Post-legislative Scrutiny, Legislative Drafting and the “Elusive Boundary”’. 2 [2010] UKSC 42, [2011] 1 AC 534. 3 [2011] UKSC 13, [2011] 2 AC 398. 4 [2007] UKHL 17, [2007] 2 AC 432. 5 [2011] UKSC 53, [2012] 1 AC 776. 1 parties as to their beneficial interests in a family home which was conveyed into their joint names. Whether there should be financial and property adjustment remedies available between unmarried couples is quintessentially a law reform project, conducted by the Law Commissions both north and south of the border,6 leading to similar solutions which have been implemented in Scotland but not yet in England and Wales. They both envisaged a brand new remedy unlike anything there had been before. The project raised the empirical issue of how far the need for such a remedy could be demonstrated. It raised the fundamental policy question of how far the remedies available to unmarried couples should be assimilated to, or different from, those available to married couples. It required that the principles underlying such a remedy be worked out in detail. It required a statutory scheme to give effect to those principles. In short, it was a project for which the techniques established by the Law Commissions were particular well suited – research into the incidence and circumstances of unmarried relationships; consultation and consensus-building; and careful attention to working out the details. To my mind, according binding force to pre-nuptial agreements, as the majority did in Radmacher v Granatino, was the same sort of project. Admittedly, the original policy argument against doing so - that it encourages marital breakdown if spouses have agreed in advance what the consequences of their separation shall be - has lost much of its force. These days the law does not regard marital breakdown as something to be discouraged at all costs. It carries little if any social stigma and the law is no longer concerned to use matrimonial remedies as a punishment for the crime of breaking up. These days there is much to be said for the couple knowing in advance where they will stand if things go wrong. The problem is that the object of such agreements, at least in this country, is to deprive one of the spouses of the divorce settlement to which he or she would otherwise be entitled: it is to limit rather than to enhance the claim. There may be good reasons for this. But 6 Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown, (2007) Law Com No 307; Scottish Law Commission, Report on Family Law, (1992) Scots Law Com No 135. 2 there is also a strong public interest in ensuring that people who can afford to provide for needs which have arisen from their marriages are obliged to do so. And other common law countries which have recognised the validity of pre-nuptial agreements have also recognised the need for procedural safeguards: even if there is no inequality in bargaining power, people intending to marry are not always in the most rational or commercially astute frame of mind. At the very least, they need full disclosure of the resources upon which they might otherwise have a claim. And they need independent legal advice as to the effect of the agreement, what they are gaining and what they are giving up, and whether there should be break clauses or renegotiation should circumstances change. None of this comes cheap. But the devising of limits and safeguards such as these is exactly the sort of thing that is better suited to a legislative scheme than to judicial law making. I also took the view that the same applied to lifting the immunity of expert witnesses from actions in negligence brought by their clients in Jones v Kaney. That involved, of course, a particularly egregious piece of professional negligence, which probably deprived the client of the damages to which he should have been entitled. It is easy to see why the majority thought that he should have a cause of action. But that was to open a Pandora’s box without a thorough examination of the arguments or a carefully designed scheme to flesh out the details: which actions, which experts, which clients, which activities and in which circumstances. The policy arguments in favour of witness immunity are not the same as the policy arguments in favour of advocates’ immunity, but it appears that it was the removal of the latter which convinced the majority that it was appropriate to remove the former. I do accept, however, that this case was much closer to the borderline than others and deeply regret any offence that I may have caused by calling it ‘irresponsible’. 3 Lord Nicholls and I might equally have been thought irresponsible in OBG v Allen,7 but I am unrepentant. It was our view that the tort of conversion should be extended to intangible as well as tangible property. This was not to create a new tort or a new remedy. It was not to remove a long-held immunity granted on public policy grounds. It was to recognise that in modern times the debts owed you by your creditors are just as much your property as the cash under the bed and should be protected by proprietary as well as contractual remedies. If the debt represented by a cheque can be converted, why not debts represented in other ways? The majority thought that it should be left to Parliament. Stack v Dowden and Jones v Kernott were similarly an exercise in adapting well-established principles of the common law to meet modern circumstances. As Lord Reid suggested in Hedley Byrne and Co v Heller and Partners,8 ‘the law ought so far possible to reflect the standards of the reasonable man’ (or, of course, woman). The reasonable person would assume that if a home is put into joint names the couple intend to own it jointly unless there is a good reason to think otherwise. The competing presumptions of advancement and resulting trust were themselves an attempt to reflect what the reasonable man would assume the intentions of the parties or party to be. Regrettably the House of Lords had declined to remove the sexism in the presumption of advancement when they might well have done so in Pettitt v Pettitt.9 But if there had been no Matrimonial Causes Act giving property adjustment remedies on divorce, I think that the courts would have had little difficulty in assuming that, at least when it came to the family home, joint meant joint: the most commonly cited reason for putting a home into joint names is the right of survivorship. There cannot at one and the same time be an intention to hold jointly and an intention to hold in unequal shares. This is not to say that intentions cannot change over time. The only truly innovative feature of these 7 [2007] UKHL 21, [2008] 1 AC 1. 8 [1964] AC 465, at 482. 9 [1970] AC 777. 4 decisions was to recognise this, in what Lord Hoffmann referred to as the ‘ambulatory constructive trust’. So I hope that I can defend myself against any charge of inconsistency. But should we distinguish between the incremental development of the law in this way and deliberately changing it, particularly where it has been decided at the highest level? We have just had a trilogy of cases in which the Supreme Court has done just that. First to be handed down was R v Jogee,10 where we decided that the criminal law had ‘taken a wrong turning’ in the Privy Council in Chan Wing-Sui v The Queen11 [1985] AC 168 and adopted by the House of Lords in R v Powell; R v English.12 If two people set out to commit crime A and one of them committed crime B, the other was guilty as an accessory to crime B if he foresaw that it might happen, even if he did not intend it to do so.