Professional Documents
Culture Documents
responsibility and family life. Using examples from Block 7, analyse how the law-
making 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
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
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
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
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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
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
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
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
Within a year of the publication of the Civil Partnerships Bill, the Law Commission
1
W100 Block 7, Justice Pages 54-55 Open University 2009
2
W100 Block 7, Justice Page 55 Open University 2009
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the Civil Partnerships Bill may be said to have addressed issues that concerned the
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
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
technology and on the issues surrounding it: the committee reported in 1984.6
born as a result of assisted conception, protections that would be required for infertile
3
W100 Block 7, Justice Pages 55-56 Open University 2009
4
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
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embryo research. Another two reports followed and the findings of the assembled
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
paved the way for a regulatory body to both license treatment and adapt to future
(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
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
7
Ibid page 84
8
Ibid page 89
9
Ibid page 91
10
Ibid Page 92
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judicial review to overturn the ruling. The case, R v Human Fertilisation and
Embryology Authority, ex parte Blood [1997] 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
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
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
11
Ibid Page 93-94
12
Ibid Page 95
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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
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
Companies have been held accountable under the law historically via a variety of
bodies under contract and the tort of negligence when the company’s actions have
13
Ibid Page 100-101
14
Ibid page 10
15
Ibid Page 9-10
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Government brought into being The Health and Safety at Work Act 1974. This Act
Breaches of this Act are considered criminal and have a strict liability, meaning that
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
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
criminal charges, mens rea. While for an individual this may be a relatively simple
intent.
16
Ibid page 22
17
Ibid page 13
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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
the company.
Whilst the identification doctrine provided some ability to prosecute the directors of
P&O and several of its directors and senior managers after the capsizing of the Herald
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
proposing the creation of a new offence in order to deal with the difficulty in
18
W100 Reader 3, Reading 27 Recklessness in The boardroom, Page 66-9, Open University 2009
19
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
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Government promised reform in its 1997 manifesto and resulted in the Corporate
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
legislation there are certainly questions regarding its effectiveness in bringing reckless
22
Ibid Page 28
23
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
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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,
Bibliography
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