Moral and political debate

As befits a democracy, laws are made after extensive debate which should ensure that the law is unambiguous and necessary. However, this system can be a very time-consuming process delaying much needed new laws or changes to laws. Sometimes, because MPs are not necessarily lawyers, they do not word the law properly leaving it open to interpretation. This complex system can be very long-winded, sometimes taking years, and good bills can fail to become law, sometimes just because they run out of time.

This is particularly true of private bills which are given less time than public bills although they often achieve their aim by drawing attention to the issues often on behalf of particular interest groups raising concerns that may not be nationwide. Delegated legislation forms a large part of the legislature. This has the advantage of being presided over by experts and they are quick to introduce and easy to amend.

The disadvantage is that it is made by non-elected people but it is under both parliamentary and judicial control so it cannot go beyond its remit. However, the sheer volume along with highly technical wording means that this form of legislature is rarely questioned Family law is one area where there has been considerable change in recent years in order to incorporate the changing shape of society with such issues as non-marital cohabitation, same sex partnerships, divorce, adoption, and fertility treatment.

These changes in society affect such issues as inheritance law and taxation as well as on wider issues in criminal and civil law. There was much pressure, from groups such as The Odysseus Trust, to confer legal identity on non-married couples giving them the same rights as married couples. This, along with such cases as Anna Homsi's, (p52, Block 7, Justice) led to the Civil Partnerships Bill 2002 dealing with the 'legal anomolies between married and unmarried couples'.

However, when the Bill became law in 2005, it only covered same-sex relationships maintaining that heterosexual couples could marry while same-sex couples were not offered this legal protection. Following recommendations from the Law commission, a draft bill again addresses the concerns of co-habiting heterosexual couples. This century has seen many changes in Divorce law, including abandoning the need to apportion blame. As the moral standpoint on marriage and divorce, along with equal rights for women, has evolved so the law on these subjects has had to follow suit.

One of the reasons why the law-makers are reticent to change laws such as these is the concern over whether society changes to reflect the law or law changes to reflect society – does making divorce easier legally lead to more divorces? There are many medical and technical innovations necessitating changes in the law. For example the advent of DNA testing to prove parentage as in the case of Keith and Andrew (p67, Block 7, Justice). The changes in society during the 1960's led to the Adoption Act (1976) which allowed adopted children to search for their biological parents.

The advent of assisted reproduction has brought this issue back into the limelight particularly as infertility remains a somewhat taboo subject. The problems are confounded by the laws reluctance to trespass too far into people's private lives but this is a moral and political issue which will need to be addressed in order to safe guard the rights and obligations of all involved including the children particularly as modern society puts more importance on parenthood and the rights of children.

The legal issues concerned with human reproductive technology are beset with moral and political debate. This is an area where the law has been unable to foresee the rapid technological advances over the last 25 years in particular fertility treatment and embryo screening and such emotive issues as designer babies, saviour siblings and the creation of life. A central issue to the debate over these embryonic technologies has been determining when a legal personality starts before or after birth – legal rights before birth are limited.

The Government introduced the Human Fertilisation and Embryology Act 1990 to give legal control over the use of embryos. Allowing embryonic research so as to help eradicate illnesses or protect the embryos as 'having the capacity for life' involves moral, religious and political issues which must be combined to provide legal guidance. The House of Lords case AG Reference (No 3 of 1994), determined that an unborn child 'does not have a distinct legal personality' so an unborn foetus is not a 'legal person' becoming a legal person only once born.

This needs to be considered along with the Congenital Disabilities (Civil Liability) Act 1976 which helps to determine whether duty of care be owed to someone who legally does not exist. The developing technology was initially regulated by the medical profession but it soon became clear that legislation was needed to provide parameters on what should be permitted. There were a miriad of moral and ethical issues to be considered and there were many organisations wanting involvement in discussions including the medical profession, religious and child welfare organisations and infertile couples.

In 1987, there were heated debates in Parliament when the proposals of the Warnock committee were finally presented following Private members bills, reports, consultations and a white paper 'Human Fertilisation and Embryology'. Despite some MPs wanting to ban embryonic research, the Human Fertilisation and Embryology Act, 1990 was eventually passed but, as it was based on 1984 research, much of the act was outdated.

The Human Fertilisation and Embryology Authority (HFEA) was created to keep the law flexible in light of fresh medical advances and to help the courts to apply the 1990 Act. The flaws in the law have been challenged by individual appeals, particularly over consent, as in the case of Diane Blood. (DVD, Unit 25 Activity 2) who, after seven years of legal battles, was allowed to take her dead husband's sperm to Belgium for fertility treatment, subsequently giving birth to two sons.

She then went on to challenge her right to put her husband's name on the birth certificates. Another way in which the law has altered to fit a changing society is with the introduction of the Corporate Manslaughter Act which was needed to respond to societies dissatisfaction with the lack of successful corporate prosecutions such as the case concerning P & O's Herald of Free Enterprise where the law was not sufficient to bring a successful prosecution despite a coroners verdict of 'unlawful killing'.

It has taken a long time for the Act to come to fruition and there remains controversy over its effectiveness and limitations. Changes in society have meant that incidents which used to be considered accidents are now viewed as someone's fault. This means that the law must cover the accountability of organisations and their failings.

The law has developed a mechanism, vicarious liability, making employers responsible for the actions of their employees and giving legal personality to a corporate entity. This corporate criminal accountability remains controversial. The idea of a corporate legal personality developed with the changes in social perception and the Bill makes provision for the offence of corporate manslaughter holding companies responsible for certain deaths.

The Police, along with the Health and Safety Executive can investigate if a work-related death was the result of an individual's negligence and, if that person held a senior position in the company, whether the company or organisation could also be considered guilty as in the case of the Lyme Bay canoeing disaster where OLL Ltd became the first company to be convicted of corporate manslaughter leading to a custodial sentence for its MD.

Following this Act, it is still difficult to determine the line between an offence under the Health and Safety Act and one under the Corporate Manslaughter Act particularly as one of the main impacts of the act has been to highlight the importance of complying with the Health and Safety Act, which has been continuously updated since its inception in 1874. In conclusion, the law-making system in England and Wales is never static because society is constantly changing and evolving so the law is under continuous change by both elected and non-elected people.

Many of these changes are brought about in response to social changes which render some laws outdated as with the old laws against theft which did not incorporate identity theft. There are systems in place to ensure clarity and feasibility as well as evolution. All of this input should ensure as fair and reasonable a system as possible. Law cannot remain reliant on tradition and sometimes there is an urgent need for either new laws or changes to the older laws.

As society changes the law must change to accommodate it. The law must meet the challenges and needs of modern society taking into account not just social issues but developments in medicine and technological innovations both of which raise moral as well as legal issues.

Bibliography

Weait, M. (2008) 'Unit 1 Thinking about rules' Block 1 Rules and Rule Making, W100 Rules, rights and justice, Milton Keynes, The Open University. pp 7-44 Weait, M. (2008) 'Unit 2 Making, interpreting and applying rules' Block 1 Rules and Rule Making, W100 Rules, rights and justice, Milton Keynes, The Open University. pp 45-85 Arthur, R. (2008) 'Unit 3 Making rules: (1) Parliament' Block 1 Rules and Rule Making, W100 Rules, rights and justice.

Milton Keynes, The Open University. pp 86-137 Slapper, G. (2008) 'Unit 4 Making rules: (2) common law' Block 1 Rules and Rule Making, W100 Rules, rights and justice, Milton Keynes, The Open University. pp 143-195 Goodey, J. Howells, C. Zambellas, A. (2008) 'Unit 5 Making rules: (3) Europe' Block 1 Rules and Rule Making, W100 Rules, rights and justice, Milton Keynes, The Open University. pp 197-232 Zambellas, A. Voiculescu, A. (2008) 'Unit 23 Law, justice and social change: (1) Corporate Manslaughter', Block 7 Justice, W100 Rules, rights and justice, Milton Keynes, The Open University. pp 6-32.