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and family life. Using examples from Block 7, analyse how the lawmaking process responds to these changes and whether it is effective in keeping pace with them.
The past century has been a period of rapid change both socially and technologically. This essay will look at how the law, and law making process, have dealt with some of the changes that have occurred in the areas of family, reproductive technology and corporate responsibility and evaluate the success of the law in providing justice in this rapidly changing national landscape.
In order to look at how the law reacts to societal changes it is important to understand the processes by which law may be made and implemented. In England there are two principle courses of law domestically: statute law; created by Acts of Parliament which are debated, scrutinised and voted upon by the Houses of Parliament and case law; generated by the rulings of the judiciary under the system of precedent or stare decisis.
As well as these two principle methods there is also delegated legislation: where Parliament gives the power to a body to create laws defined by the original legislation. There is also European legislation: the findings of the European Court of Human Rights and the European Court of Justice.
Over the course of the twentieth century the familial landscape of the United Kingdom has changed dramatically. Prior to the 1960’s it was rare, and considered by many shameful, for an unmarried couple to live together, the norm was for a couple to wed before cohabiting or bringing a child into the world. 1
ECA Greg Baker - Personal Identifier A8321851 This societal norm has changed beyond recognition: according to the Office of National Statistics in 2000, almost half of all children were born out of wedlock. This change brought about a number of legal quandaries concerning the rights for spouses and children in such circumstances. An example is the case of Anna Homsi in 2000. Homsi’s long-standing partner, a member of the SAS, died on active duty, she found herself ineligible to claim a war widow’s pension. While the case was settled ex gratia the moral implications of failing to support the partner of a deceased serviceman are stark. 1
Another area where society has changed has been in regards to homosexuality: prior to the Sexual Offences Act 1967, homosexuality was a crime under English law and while the Act did decriminalise consenting sexual relations between men over the age of 21 years there was no legal framework wherein a homosexual couple could declare a commitment and receive subsequent protection and rights under law in the way a marriage provides for heterosexuals.
In order to deal with the anomalies to justice such as these, Lord Lester of Herne Hill proposed the Civil Partnerships Bill in 2002, which was to allow for unmarried couples to obtain similar rights to married ones by registering their relationship. During the process of the Bill becoming an Act the issue of different sex relationships was dropped from the Bill on the basis that marriage already provided the required protections for heterosexual couples as it stood. 2
Within a year of the publication of the Civil Partnerships Bill, the Law Commission presented the Government with a series of recommendations designed to ensure some
W100 Block 7, Justice Pages 54-55 Open University 2009 W100 Block 7, Justice Page 55 Open University 2009
ECA Greg Baker - Personal Identifier A8321851 legal protection for unmarried couples in matters of property and pensions.3 Whilst the Civil Partnerships Bill may be said to have addressed issues that concerned the homosexual community, it has arguably failed to protect the heterosexual one.
Another aspect of family life that has changed is the nature of parenthood. Until 1926 the nature of the parent-child relationship was strictly considered to be one of blood ties. The Adoption of Children Act 1926 changed this and allowed for a family to take in a child that was unrelated to them by blood but would be treated, under law, in the same way as the natural offspring of the parent.4
Another challenge to the concept of family came in 1978 with the birth by In Vitro Fertilisation of Louise Brown. This new technology created many dilemma’s both ethical and legal to be tackled: what was the status under law of children born with donor sperm or eggs, what rights would the child have to find their biological donor parent, what techniques would be deemed legal and what legal framework would best provide the flexible, but effective, cover a rapidly emerging technology would require? 5
Initially assisted conception was regulated by the medical profession itself. However, due to the ethical, moral and legal complications surrounding it in 1982 the Warnock Committee was set up to provide advice and guidance to Parliament on the technology and on the issues surrounding it: the committee reported in 1984.6
The report provided a number of suggestions on clarification of the status of children born as a result of assisted conception, protections that would be required for infertile
W100 Block 7, Justice Pages 55-56 Open University 2009 W100 Block 7, Justice Pages 71-72 Open University 2009 5 Ibid Pages 82-84 6 W100 Block 7, Justice Pages 84 Open University 2009
ECA Greg Baker - Personal Identifier A8321851 parents, a framework for medical professionals working in the field and provisions for embryo research. Another two reports followed and the findings of the assembled reports were not put to a white paper in Parliament until 1987. 7
The Warnock Committee’s suggestions were, in the main, incorporated into the Human Fertilisation and Embryology Act 1990 after heated debate in both Houses of Parliament. This Act provided a definition for certain underlying principles that were to be upheld in matters of assisted conception, banned certain forms of treatment and paved the way for a regulatory body to both license treatment and adapt to future scientific developments – The Human Fertilisation and Embryology Authority (HFEA)8
One of the principles of the Act was that of effective consent. This meant that in order for treatment to be ethical and legal that the parties undergoing treatment must have been made aware of the considerations of the process, and have provided written consent for it. 9
This concept was challenged by the case of Dianne Blood. In 1995, Stephen Blood had contracted bacterial meningitis and rapidly deteriorated into a coma before dying of the condition. During the period in which Mr. Blood was in a coma, Dianne Blood requested that the medical staff extract sperm from him and store it for later use. Importantly there was no written consent provided by Mr. Blood for the procedure.10
After Stephen Blood’s death Mrs Blood requested that she be impregnated using her deceased husband’s sperm, this was turned down by the HFEA on the grounds that no
Ibid page 84 Ibid page 89 9 Ibid page 91 10 Ibid Page 92
ECA Greg Baker - Personal Identifier A8321851 written consent existed to undergo the procedure. In response Mrs Blood sought a judicial review to overturn the ruling. The case, R v Human Fertilisation and Embryology Authority, ex parte Blood  focussed on two aspects of the Human Fertilisation and Embryology Act 1990: whether it was possible to release sperm in the absence of written consent and if the HFEA had acted ultra vires in their refusal to allow the sperm to be transported to another EU member state for the procedure to be carried out there.11
On the issue of consent, the court found that there had been no written consent, as required under the Act, and as such Mr. Blood’s sperm should not have been extracted or held for use in the first case.
On the second issue, the HFEA was considered to be acting within the framework as set up in the Act. This decision was later overturned on appeal as the decision had not taken into account Articles 59 and 60 of the EC Treaty, which provided Diane Blood with the enforceable right to have treatment in any EU member state. The refusal to allow for the sperm to be transported had effectively removed this right12.
Another area of dispute lay in the status of a father who was deceased at the time of conception. The Warnock Committee discouraged this practice in its findings and, rather than provide an absolute prohibition in the 1990 Act, there instead was a deterrent: the donor of the sperm used after his death would not be treated as the child’s father under law. This was challenged by Dianne Blood and, in 2003, as the challenge was listed for its hearing it was accepted that the existing law was incompatible with the European Convention on Human Rights. This resulted in the
Ibid Page 93-94 Ibid Page 95
ECA Greg Baker - Personal Identifier A8321851 law being changed by The Human Fertilisation and Embryology Act (Deceased Father’s) Act 2003. 13
It would be fair to say that the Human Fertilisation and Embryology Act 1990 was overall successful in its goals, and indeed was well received internationally as a baseline for many other nations own legislation. However while it did manage to provide a framework, the changing nature of the technology and the complex moral dilemmas that it has attempted to deal with has allowed for there to remain a good deal of uncertainty over more unusual cases. Also the sheer length of time that the law took to hit the statute books from the arrival of the first in vitro fertilisation birth would make it hard to argue that the law responded in a swift manner over the issue.
The final area of change this essay will consider is that of corporate social responsibility. Over the past thirty years several incidents have brought the issue of corporate accountability into the public consciousness. Although large-scale disasters brought about by corporate, or organisational, activities are not a new phenomenon, the public attitude to these occurrences has changed markedly and the common perception is that it is vital that such bodies must be properly held legally accountable for their activities.14
Companies have been held accountable under the law historically via a variety of mechanisms: through the laws of contract to enforce obligations to individuals and bodies under contract and the tort of negligence when the company’s actions have caused, or been found vicariously liable, for injuries caused. 15
Ibid Page 100-101 Ibid page 10 15 Ibid Page 9-10
ECA Greg Baker - Personal Identifier A8321851 In order to provide additional safeguards for employees and the public the Government brought into being The Health and Safety at Work Act 1974. This Act provides a statutory framework of responsibilities on companies and organisations. Breaches of this Act are considered criminal and have a strict liability, meaning that there is no requirement to prove mens rea when prosecuting a breach of the legislation. That is: in order to gain a successful prosecution the company’s intent does not need to be proven, the breach is in itself enough to be considered criminal. 16
There is also the offence of gross negligence manslaughter. This is when someone is undertaking a legal activity but due to the negligent manner in which they perform it kills another as a result. Whilst this law is adequate for individuals who perform grossly negligent acts, for companies its effectiveness is debateable.
The law of gross negligent manslaughter requires that the defendant owes a duty of care to the deceased, that the duty was breached by the activity and also that the risk was such as to have been foreseeable by a prudent individual and of such gravity that the foreseeable risk was that of fatality, not merely of injury.17
Although these requirements, in and of themselves, do not amount to an insurmountable barrier to a successful prosecution, when it is applied to a corporation there is an additional complication. In order to mount a prosecution for gross negligent manslaughter as well as the above it is also required to prove, as in most criminal charges, mens rea. While for an individual this may be a relatively simple affair, a corporation, being an artificial construct, is not capable of having criminal intent.
Ibid page 22 Ibid page 13
ECA Greg Baker - Personal Identifier A8321851 As such a doctrine was developed, known as the identification doctrine, which allowed for the potential of a successful prosecution. Under this approach, the court must be able to identify that the acts, or lack thereof, by individuals of enough seniority within the organisation as to constitute the ‘controlling or directing mind’ of the company.
Whilst the identification doctrine provided some ability to prosecute the directors of smaller companies, it was proven to be insufficient when applied to larger organisations. This problem is illustrated clearly by the unsuccessful prosecution of P&O and several of its directors and senior managers after the capsizing of the Herald of Free Enterprise in 1987.18
In this case the Crown failed to prove there was a case to answer and the case collapsed before the defence against the company directors and a senior manager and furthermore that it would not be in the public interested to continue with a prosecution against the Assistant Bosun and Chief Officer of the ship. Although the company’s conduct had been strongly criticised by the Sheen Inquiry and these inadequacies had led to 19219 fatalities; the organisation of the company was such that providing a charge of negligence against the directors and senior manager proved impossible. 20
This case was not alone: between 1997 and 2002 several major rail disasters occurred and, despite a catalogue of organisational failures and evidence of incompetence, no convictions were obtained.21 The Law Commission published a reported in 1996 proposing the creation of a new offence in order to deal with the difficulty in
W100 Reader 3, Reading 27 Recklessness in The boardroom, Page 66-9, Open University 2009 W100 Reader 3, Reading 28, Corporate Manslaughter: The changing legal scenery Page 72, Open University 2009 20 W100 Reader 3, Reading 27 Recklessness in The boardroom, Page 66-7, Open University 2009. 21 W100 Book 7 Justice, Page 20, Open University 2009
ECA Greg Baker - Personal Identifier A8321851 obtaining convictions under the existing legislation.22 The incoming Labour Government promised reform in its 1997 manifesto and resulted in the Corporate Manslaughter and Corporate Homicide Act 2007.23
This Act diverged from the requirements for a successful gross negligent manslaughter conviction in that it requires that the way that a company is organised or managed brought about the fatality and was a gross breach of the duty of care owed to the deceased party. The term ‘a gross breach of care’ is also defined as ‘conduct that falls far below what can reasonably be expected of the organisation in the circumstances’. 24
Whilst this law does allow for large and medium sized organisations to be prosecuted successfully and allows for an unlimited fine and a remedial order, demanding that the causes of the breach are remedied, the Act does not allow for direct punishment of directors, making the Act’s deterrent role somewhat limited. When it comes to holding such individuals to account for their negligence, the law has made little or no impact.25
As this essay has demonstrated the law struggles to keep up with fast moving changes in society in an effective and timely manner. Although the Corporate Manslaughter and Corporate Homicide Act 2007 is undoubtedly an improvement on the previous legislation there are certainly questions regarding its effectiveness in bringing reckless individuals in larger organisations to account.
Ibid Page 28 Ibid page 28 24 W100 Reader 3, Reading 32, The Corporate Manslaughter and Homicide Act 2007: Unfinished Business Page 89-90 25 Ibid page 91
ECA Greg Baker - Personal Identifier A8321851 In the case of Civil Partnerships the law envisaged in providing protection for all unmarried couples has been restricted to those of the same sex only and as such provides no refuge for the large number of heterosexual families not bound by wedlock.
And finally in the case of the technology surrounding assisted conception, it took 12 years from the birth of the first ‘test tube baby’ for the Act of Parliament to gain Royal Assent causing a long period where there was no easily defined legal certainty over the issue and, even after the Human Fertilisation and Embryology Act 1990 became law, large areas of dispute exist that have required extensive court cases, further Acts and common law rulings to remedy.
Word Count: 2490
W100 Reader 3 Open University 2009
W100 Block 7, Justice, Open University 2009
W100 Block 1, Rules and Rule Making, Open University 2009
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