Date: Thu, 9 Oct 2008 20:10

From: Robert Stevens

Subject: Law Commission and Public Bodies

This is a reminder to colleagues that the closing date for responses to the Law Commission's proposals in relation to the liability of public bodies is 7 November. The Paper is here. 

I would strongly urge anyone interested in the (private) rights citizens have against the State to read these proposals. Law Commission consultations frequently receive very little response. It would be a scandal if that occurred on this occasion.

Responses from those with an interest in the law of torts coming from jurisdictions other than England would, I think, be helpful. For example anyone interested in corrective justice should read Appendix A, and may wish to write in explaining why what is proposed is not a 'modified' version of corrective justice at all, but is in fact antithetical to it. Similarly, Canadian colleagues may wish to explain the reaction to Saskatchewan Wheat Pool, which the English Law Commission seems to be unaware of, despite making proposals to move English law in the same direction.

The proposals include

(i) the abolition of breach of statutory duty (cf Law Commission, The Interpretation of Statutes (Law Com paper no 21));

(ii) the abolition of joint and several liability (cf Law Commission, Feasibility Investigation of Joint and Several Liability);

(iii) the abolition of misfeasance in a public office;

(iv) allowing recovery for 'pure' economic loss;

(v) confining the liability of public bodies in carrying out public activities to cases of serious fault;  

(vi) abandoning the difference between misfeasance and non-feasance;

(vii) allowing all those who suffer loss as a result of a public law wrong to claim damages.

Brevity is a virtue, but on this occasion the quality of this document may, on one view, be ascertained from its length. These proposals to radically re-write the relationship between citizen and state, abandoning Dicey's principle of equality before the law, are 131 pages long (excluding brief appendices). Within those pages the Paper attempts first to comprehensively describe the position in relation to both the rights of public redress against public bodies and the position as a matter of private law, second to diagnose defects in the law, and third to propose far-ranging proposals for fundamentally altering the relationship between citizen and State.

This may be usefully contrasted with any number of other Law Commission Consultation Papers, but one current example is the Law Commission’s proposals in relation to Easements, Covenants and profits a prendre. The latter is obviously both a much smaller topic and far less controversial. That Consultation Paper (excluding lengthy appendices) is 280 pages long.

I have written a lengthy response, which anyone is welcome to see. What I think may be guessed.

I urge you to write a response to this Law Commission Consultation.

Robert Stevens

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