ANDREW ARDEN, QC
Arden Chambers (housing)

In it is invidious to have to select a single area of law when so many are so much more complex than can be justified and, as such, so long overdue for reform. In Utopia, Thomas More wrote that "it is quite unjust for anyone to be bound by a legal code which is too long for an ordinary person to read right through, or too difficult for him to understand". When it comes to areas of social welfare law, welfare benefits in particular, it sometimes appears that it is positively intended that no one directly regulated by it should be able to comprehend it. I invite anyone who thinks this is hyperbole to read, for example, the Housing Benefit Regulations.

Naturally, as it is my own principal area of activity, I settle on housing law as the area most in need of, and overdue for, reform. Nothing is so elementary as the proposition that people ought easily to understand what their rights are in their homes - what they can do in them, what they have to pay for them, for how long they (and their families) can stay in them, what causes their loss, what their rights are in respect of the condition of their housing, when they are entitled to get housing and so on.

MILLY AYLIFFE
Norton Rose (rail)

My vote is for the law on execution of documents, which is basically a mess. There is remarkably little helpful case law, but many statutory provisions scattered across numerous pieces of primary and secondary legislation, some of which conflict with each other. One of the worst sources of confusion is the presumptions about certain matters in favour of certain classes of person. The recent Regulatory Reform (Execution of Deeds and Documents) Order 2005 has done a little to improve the situation but represents a missed opportunity to clean up this area of the law once and for all. The changes to the way in which companies can execute documents that are to be introduced under the new Companies Act taken in isolation represent some progress but further proliferate the sources of law on this matter. A great deal of time and money is wasted worrying unnecessarily about the way in which agreements are authorised and signed. We should start again with a blank sheet of paper.

ELIZABETH BARRETT
Slaughter and May (litigation)

The law most urgently in need of reform today is the Extradition Act 2003. Originally perceived as aimed at terrorist suspects, the Act hit the headlines with the extradition last year of the "NatWest Three" to the US. But that is the tip of the iceberg. Under the Act, the US is only one of 24 jurisdictions from Albania to Russia to which UK citizens doing business abroad could find themselves being extradited in similar fashion.

Normally, the English courts will only grant an extradition request where there is sufficient evidence. In short, this means that the country requesting extradition must establish that there is a case to answer and this provides UK citizens with comfort that they will not be extradited without cause. But, in respect of 24 jurisdictions, the Act waives this crucial requirement. And invoking the Human Rights Act has proved to be of little avail.

Knowing the case one has to answer is a cardinal principle of natural justice. The Act, which creates particular vulnerabilities for UK citizens doing business abroad, offends against this principle. If the UK is to maintain its position as a great trading nation, the business community needs to be reassured that its members can do business abroad without risk of extradition without due cause.

ALAN BLACK
Linklaters (energy)

I would amend the Misuse of Drugs legislation. There can be no argument that most, indeed possibly all, of the drugs proscribed by the Misuse of Drugs legislation are or can be harmful to those who use them. That will not, of itself, stop people using them. Society needs to ensure that those who are vulnerable are protected from harm (and from harming themselves) to the greatest extent possible. The existing legislation not only doesn't do that but seems actively to encourage the opposite.

Dealers and producers make such astonishing amounts from providing drugs that they will always find ways of ensuring that drugs are available and that their market is as large as possible. Prohibitionists may argue for more stringent penalties and stronger enforcement, but locking up all dealers, producers and users simply will not work. Apart from prison capacity, there will always be other dealers and producers if the profit is right; and a sizeable proportion of the population uses drugs.

People die from drug abuse; but people die from alcohol and tobacco abuse, and we do not proscribe them. Indeed, more people die nowadays from adulterated drugs and bad needles than from the "pure" drug itself. Making the trade illegal does not protect the vulnerable and does not assist those who want to escape it.

All drugs ought to be licensed, but that does not mean that they should be encouraged or that there should not be penalties for those who import or deal without a license. Education about the effect of drugs must be strengthened. There should be a proper gradation of drugs based on the harm they do. Some drugs must be prevented to the greatest extent possible from becoming used and available; others (although being discouraged) should be more easily available with proper protection. All drugs should be properly sourced, clean and unadulterated.

The details will be difficult to determine and it will not be easy to make it work in practice. Some people will suffer damage and some will even die as a result of using drugs - but they do nowadays. If, however, dealers and producers no longer find it worth their while to push drugs, use is likely gradually to diminish. As education builds on a common sense foundation, use is likely to become more "sensible" and less and less people will be tempted. Change is likely to be gradual; things will not happen overnight and it may even get slightly worse before it gets better. Any solution has to be over the long-term. The present law, however, is not working and needs to be reformed.

ADRIAN BRIGGS
Professor of Private International Law, Oxford University

I am not sure that I can identify a single law which above all other needs reform. The greatest need strikes me as being that the law as it affects ordinary people should be written in language which they can easily understand: if legislation is written in incomprehensible English, it will not convey the sense that it is the people’s own law. There are good examples of how to do it: the 1893 Sale of Goods Act was a remarkable piece of intelligible prose. A good test would be to ask whether the draftsman’s partner, parent, adult child could understand what it means. If not, it should not be enacted in that form. And if it has been, it should be repealed and re-enacted in that form.

KIRSTY BRIMELOW
187 Fleet St Chambers (crime)

I would change the sentencing provisions in the Criminal Justice Act 2003. Since April 4, 2005 a large number of Crown Court offences require the judge to consider imposing discretionary life imprisonment. The imposition of this sentence is subject to certain criteria but, ultimately, dependent upon the discretion of the individual judge. The specific result is arbitrary. The overall result is that the public is alarmed by the increase in such sentences but outraged that it equates to relatively few years in prison. The general public does not distinguish between mandatory and discretionary life sentences. Hence the term life imprisonment is ultimately devalued.

The reality is that offenders are sentenced to harsher sentences than more than a decade ago. We do not need window dressing for the statistics. Discretionary life sentences should be repealed in favour of imposing a determinate number of years’ imprisonment.

TOM CASSELS
Baker & McKenzie (public)

Multiple damages would certainly increase the likelihood of private enforcement of competition law. Most businesses seem to oppose this as it may give a windfall, but the question is how important is it to have people other than competition authorities bring actions? All now seem to agree that competition is a good thing. This reform, although controversial, may be necessary.

SHAMI CHAKRABARTI
Director of Liberty

Asking the Director of Liberty which unjust law she would repeal is almost as impossibly tantalising as giving a wine buff the free run of every fine cellar in the land. In recent years, Parliament has too often legislated first and asked questions rather later and our statute book now bursts with umpteen dangerously broad criminal offences and police and government powers - a constitutional poverty only alleviated by the charitable restraint of those in power today - but for which our children and grandchildren are unlikely to thank us in the future.

So I have chosen section 133 of the Serious Organised Crime and Police Act of 2005, as much as a symbol and symptom of the wider malaise as for the particular injustices created by it. Under this provision, anyone wishing peacefully to demonstrate within a "designated area" in and around Parliament Square must apply to the Police for prior permission. The Police are then entitled to impose conditions on the protest. The law was introduced to prevent the irritation caused to politicians by Brian Haw’s long-standing peace protest and sits in addition to a whole armoury of pre-existing police powers designed to deal with people who actually cause a threat to public safety or order.

Last year Milan Rai and Maya Evans were arrested and then prosecuted under section 133 for doing nothing more than reading out the names of people who had died during the Iraq War. There are many laws that I could have chosen but how can we even begin to address those, if those in power treat dissent as disloyalty and muzzle free speech in this way?

KATHERINE DANDY
Sacker & Partners (pensions)

They say its much easier to write a long letter than a short letter and the same philosophy of "less is more" equally applies to the UK's pensions law. There have been many laws and regulations passed in the last few years but the law of pensions is still in need of a major overhaul. Why? Because the law at present is just too complicated and costly.

At a time when the Government is pressing people to save for their retirement, the country's final salary schemes continue to take a bashing. Employers wring their hands wondering how they are going to pay for past promises. A major reason for this has been poor financial performance, which is directly linked to low interest rates, increases in longevity and so on, but the sheer complexity of running a pension scheme in 2007 is another important factor. If pension law was simplified it would help enormously.

We have to go back to the Maxwell days in the early 1990s to understand how it all started. Clearly at that time there was a glaring absence of regulation and pension schemes funds could be abused and they were - there were many other Maxwell-type cases at the time that did not hit the headlines. Since then we have had the Pensions Acts 1995 and 2004 and another is in the pipeline. We have also had hundreds of regulations passed with these Acts.

The vast majority of pension schemes are run very well using a combination of fair minded trustees and highly specialised advisers. If we had a more relaxed regime and at the same time gave greater power to the Pensions Regulator to intervene when schemes are vulnerable, this would allow the vast majority of pension schemes to be run more efficiently and permit more flexibility and discretion which would be in the members' best interests. If this happened then we just might see more employers willing to take another look at their final salary schemes which would be good news for everyone.

MARTYN DAY
Leigh Day & Co (personal injury)

The law I would most like changing? That is the Development Risk Defence in product liability cases. The whole idea of the Consumer Protection Act was to provide strict liability for injury and damage resulting from defective products. All very good in theory but by allowing the defendants the let out of showing the defect was unknowable at the time, it has made the legislation almost worthless. A minute number of cases have ever got close to trial in this country and in Europe - which has similar legislation - the position is even worse. In my view, if a person can show they have suffered damage or loss as the result of a defective product they should be entitled to compensation, full stop, no argument. The fact is the defendants are the ones making a profit out of their products. If they are subsequently found to cause damage unknown at the time, then they should suffer the loss not the individual. That maybe thought to be tough on the defendant but it is a heck of a lot tougher on the innocent injured person.

JON EAST
European legal advisor, Samsung Electronics

The law in the UK that I believe is most in need of reform is that relating to residential conveyancing. This law is nothing to do with the industry within which I work but is one which touches the lives of so many people in the UK, the majority of whom will have been scarred on at least one occasion as the result of a sale or purchase, if not both, falling through. The law as it stands allows unscrupulous practices such as "gazumping" and means that, until the exchange of contracts, the parties are legally entitled to simply change their mind about the whole process and/or seek to renegotiate price and the other terms.

The practice of making an offer to buy a property is one which can almost be done on a whim since it does not entail the offeror undertaking or accepting any legal obligation. Similarly, accepting an offer merely means that the convoluted process can start – the seller remains legally free to decide to discontinue the process and/ or accept a higher bid at any stage prior to exchange. Since no deposit is required to be paid before exchange, it is possible for either party to drag a process out for weeks (if not months) without incurring significant costs – despite the other party proceeding in good faith and possibly at a significant cost in terms of legal and other fees.

GILL GRASSIE
Maclay Murray & Spens (intellectual property)

This is of course a very broad question and I can think of many examples that I would want to put forward. However, the area I would suggest that is most in need of reform is the mix up that is the current UK law on implementation of the European Convention of Human Rights, particularly when it comes to Article 8 and the right to privacy.

At present, there is no law of privacy as such in the UK. The Courts have instead tried to adapt the old law of confidence to fit. The result is that the law in the area of privacy is not logical and therefore cannot be applied consistently on a general basis. This can best be explained by looking at two recent cases:

The Douglas v Hello! case. The case has been running for about six years now and it is finally due to go to the House of Lords. The issue there was the Douglas's wedding photographs and whether there was a right in the nature of privacy which could be relied on to prevent their publication where the exclusive rights and rights to publish had been sold to OK! magazine. Hello! magazine published unauthorised photographs and was sued. There was some initial success against Hello! and the Douglas's were awarded some compensation for emotional stress. OK! is continuing with its argument that it has rights in the photographs as confidential information and this issue is now going to the House of Lords. If the House of Lords finds in OK!’s favour it is likely to change the law and effectively create a new right of personality image. This will not really assist the development of a UK law of privacy as such to be applied across the board as opposed to celebrities or people in the public eye. Also this case is not really about breach of privacy or confidentiality as the motivation behind the deal with OK! was in fact publication of the photographs. It is really about image rights. Nonetheless this and other celebrity cases have been the main context in which the human right of privacy has been most discussed and debated in the Courts.

Contrast the celebrity cases with the recent case of Wainwright v the UK. In this case Mrs Wainwright and her son (who has cerebral palsy and severely arrested social and intellectual development) were strip searched in a very degrading manner while visiting a relation in prison. As a result of this strip search both suffered serious psychiatric problems afterwards. When they took action against the Home Office the English Courts decided that no wrongful act had been committed under UK law. That, despite the fact that UK law is supposed to implement the Human Rights Convention. The Wainwrights took their case to the European Court of Human Rights in Strasbourg relying on Article 8 of the Convention ie the right to respect for private and family life and Article 13 which requires member states to provide effective remedies for Convention rights which have been breached. The European Court of Human Rights decided in their favour and awarded compensation.

Whilst there is no doubt a law of privacy should have a place in some of the celebrity related cases, it is this kind of case where the law of confidence cannot be dressed up to fit which illustrates clearly the real gap in UK law. Arguably it demonstrates that there is a real void to be filled with a new and logically and legally sound UK law on the right to privacy.

CATHERINE HALLAM
Burges Salmon (family)

I would pick financial settlements in divorce cases. Married couples who divorce in England and Wales (and indeed civil partners whose partnerships break down) currently suffer real uncertainty about what the outcome of their financial settlements will be, particularly where the assets are substantial.

An equal division of assets on divorce is by no means the inevitable outcome. If an agreement cannot be reached the outcome is down to the discretion of a judge about what is fair in all the circumstances . As a result it is difficult for lawyers to predict with accuracy how assets will be divided. Efforts to reach agreed solutions can be frustrated by husband and wife getting conflicting legal opinions about the likely end result.

In the summer of 2006 the House of Lords in the landmark cases of Miller/MacFarlane missed a golden opportunity to provide clarification. While accepting in the judgment that "fairness is an elusive concept" and that a clearer system was needed, if anything greater uncertainty was created by the judgment. As a result there remains real lack of clarity about:

How inherited wealth, assets owned before a marriage, and business assets should be treated

How the length of marriage affects the outcome; the position for medium length marriages is particularly unclear

Whether exceptional contributions or business acumen will lead to a departure from equality

Whether pre-nuptial agreements will be followed

The percentages in which income will be divided between spouses, and for how long maintenance is payable

New legislation is needed to reform the Matrimonial Causes Act 1973 which provides too great a range of judicial discretion. Enthusiasts for the present system say that strict rules like those already in place in Scotland will create unfairness; only a discretionary system can adapt to the complexity of real life. However while the range of possible outcomes is so wide, genuine efforts to find agreed solutions will often be thwarted.

JONATHAN HERBST
Norton Rose (finance)

The legislation that I would seek to scrap would be the Identity Cards Act 2006, which received Royal Assent on March 30, 2006. The Act provides the legal framework required to establish a National Identity Register and to issue ID cards to those on this register. Why do we need identity cards? They will not prevent illegal immigration. Those economic migrants who want to enter the UK will continue to do so. Also, no act of terror has been stopped by ID cards, nor has a terror group been penetrated or monitored because of them. It will not prevent crime. Identity theft will not be stopped and it is suspected that ID cards will become a very attractive target for forgers. Also, serious criminals will probably carry everyone else’s ID card except their own. They will not magically allow you to get the job of your dreams. However, they will allow the Government to access your file on the National Identity Register which will contain details of you and your life. The issues surrounding ID cards are therefore not about crime and terrorism but about civil liberty, privacy and democracy and hence this Act should be repealed.

IAN KELCEY
Kelcey & Hall (crime)

I believe that the law most in need of reform is the law relating to Anti-Social Behaviour Orders (Asbos), which came into force under the Crime and Disorder Act 1998. No one would argue that the ideals were wrong; the difficulty that we now face is that it is being applied to situations where Parliament I suspect did no intend it to. Local authorities and police tend to use it as a catch-all provision towards what many regard as compulsive behaviour by people who often have personality or mental health disorders. Recent examples have been ordering defendants not to feed pigeons; not to make 999 calls; not to go near water; and ordering an alcoholic not to drink alcohol.

Clearly when this legislation was enacted it was intending to stop people writing graffiti, terrorising others on estates and so on, but you should not be able to use it as a means of imprisoning the mentally ill or sick as is now happening. We should be looking to see that mental health services are properly funded as are addiction centres rather than just imprisoning people. Prison will not solve the problem, many orders are now being made when courts know that they are setting up defendants to fail and therefore be subjected to in some cases lengthy terms of imprisonment for breach of the order.

SONYA LEYDECKER
Herbert Smith (litigation)

In my area, commercial law, one issue that continues to cause concern is the state of uncertainty over privilege for corporate clients. Not so long ago, it was accepted that privilege was a fundamental right. But in Three Rivers, for reasons that remain unclear, the Court of Appeal took a hostile approach to the principle of legal advice privilege, even going so far as to doubt the justification for privilege outside the context of litigation.

The House of Lords has since reaffirmed the importance of legal advice privilege, emphasising the need for a client to be able to seek advice from a lawyer with absolute candour whether or not litigation is in contemplation. However, the Court of Appeal's restrictive view of who is the "client" for the purposes of legal advice privilege continues to cause uncertainty for corporates, who of course can only communicate through their employees or officers.

It is in everyone's interests that clients can, in the words of one 19th century decision, "make a clean breast of it" to their lawyers, without fear that the information will be disclosed more widely. Anything that discourages this sort of open communication is, in my view, unfortunate.

OWEN LOMAS
Allen & Overy (environment)

The wheels on the bus, do, indeed, go round and round all day long. But, to our environmental shame, the chatter chatter of the "people on the bus" is heard less and less. We apparently have more of them than any other country but there is a problem – Britain's buses run half empty. The reasons are manifold – infrequent, expensive, unreliable services with ramshackle old fleets that should have been consigned to the scrap – sorry, recycling, yard years ago. A surfeit of buses on potentially profitable routes in the major cities leads to supply massively outstripping demand. The economic, social and environmental consequences of this bus baloney are pitiful: roads clogged with yet more cars, as well as buses, with consequent adverse impacts on economic growth and quality of life. Transport pollution, including carbon emissions, is far higher than it need be. The list goes on.

So who, or what is to blame for this sorry state of affairs? The answer is, of course, more complex than one person or one law or policy but a start has to be made somewhere. Where better then than Margaret Thatcher's Bus Deregulation Act of 1985? This law, aimed at introducing competition in the bus industry, has done more than anything else to destroy an effective network of public road transport to the detriment all of us – whether we are bus users or not. Its repeal and replacement by a new regime designed to tackle social, economic and environmental need as part of an integrated road and public transport policy, is desperately overdue.

JAN LUBA, QC
Garden Court Chambers (housing)

The most urgent need for reform in the property sector relates to the legal arrangements for residential letting in both the private-rented and social housing sectors. The present law is hopelessly complex for both landlords and tenants, and the judges and tribunals who have to resolve disputes between them. That complexity has a real cost: both tenants and landlords suffer uncertainty about their rights and obligations and over frequently need legal advice; unscrupulous parties on both sides exploit the uncertainties; the county courts are clogged-up with unnecessary possession claims which are really debt-collecting exercises for tenants with modest arrears; and the legal aid fund bears the burden of securing protection for the most vulnerable occupiers.

How, after all, would a tenant and landlord readily understand which "species" of tenancy they had? The portfolio of possibilities includes: assured shorthold, introductory, secure, protected, full assured, demoted, unprotected, excluded and many others. The terms and conditions on which tenancies are held are infinitely varied and the cause of much confusion.

Happily, sanity is capable of being easily restored. The Law Commission has recently finished a comprehensive review and come up with draft legislation in a draft Rented Homes Bill. This will enact a simple, comprehensive and standardised legal regime for the letting sector. Landlords will know and understand their obligations. Tenants will know whether they can be secure in their homes and enforce their rights.

The reform is politically "neutral" (representing no change in the underlying balance of the current law as between landlord and tenant). It will transform a "mess" into a clear legal regime.

All that is needed is the political will to invite this Housing Cinderella to the Law Reform Ball.

CLARE MAURICE
Allen & Overy (private client)

My candidate is the Inheritance Tax Act 1984 and related legislation. Whatever your position on inherited wealth, the current arrangements are a shambles. The present Government has turned what was a reasonably fair system into one which is nasty, complicated, backward-looking and catches innocent arrangements. The unfairness challenges the honesty of otherwise law abiding citizens.

In the absence of a root and branch reform two elements in particular need attention:

This Government has gone to extreme lengths to handle what it sees as rampant tax avoidance. Instead of targeting the specific evils identified by them, they have, perhaps lazily, adopted a very broad brush approach with the result that innocent arrangements have been caught up when this could not have been the intention. In particular:

(i) Section 84 and Schedule 15 Finance Act 2004 imposing the pre-owned assets tax

This legislation is an example of the sledgehammer v nut syndrome. The particular arrangements the Government wanted to eliminate could have been dealt with by more targeted legislation. Instead of which we have what amounts to a general avoidance rule which not only scoops up all manner of arrangements not originally contemplated but is also retrospective. Indeed actions taken as far back as 1986 can have consequences for individuals.

(ii) Inheritance tax: rules for trusts, Schedule 20 Finance Act 2006

The provisions introduced last year can only be described as vicious. A trust is a concept which has been around for centuries. This attack, without any consultation, has many unforeseen consequences. But the most ludicrous thing of all is that we now have a position where A can make a gift outright to B of £1 million upon which there will be no tax to pay if B survives seven years, yet a similar gift into trust for B generates a liability of 20 per cent. Moreover the creation by A of a trust for himself triggers a tax charge even though there is no loss to his estate. The rationale given by Dawn Primarolo for this singling out of the trust was flimsy.

I would suggest that the laws relating to the taxation of inheritance need a considered review so that the nastiness and complexity of them can be eliminated. Perhaps the fairest solution, if there is to be a tax on death, is for there to be capital gains tax liability which more fairly achieves some funds for the Exchequer.

SIMON MYERSON, QC
Park Court Chambers (crime)

Although it’s tempting to nominate the Criminal Justice Act 2003 (as I’m sure a great many people will) I would actually cast the net wider. The country badly needs the Discretion in Sentencing Act 2007. The Act would be a simple affair. Part 1 would repeal all other Acts relevant to sentencing. Part II would establish the need for the Sentencing Guidelines Council to issue guidelines in two forms – as consultation exercises and as policy. It would obligate the government of the day to take into account the view of the judiciary and to consult the bar, the solicitor’s profession, the police, victims’ organisations, the Prison Service, the Probation Service and NACRO, before publishing a consultation guideline. It would provide that no consultation guideline could be issued as policy within 6 months of the consultation exercise being completed. That might stop the onrush of reflexive legislation.

Part III would make it mandatory for the Home Secretary to publish the government’s sentencing policy in full. That would cover what the policy was aimed at achieving in specific areas – youth, sexual crime, violent crime, financial crime, drugs and so on. The policy would be judicially reviewable by any of the bodies mentioned above – the new LCJ’s office being empowered to do so for the Judiciary in the name of the LCJ himself. Part III would also provide for Parliamentary sovereignty by ensuring that any part of the sentencing policy expressly approved by Parliamentary vote could only be judicially reviewed on the grounds of uncertainty or irrationality. That would encourage a national political debate on sentencing and prisons, which was backed up by properly drafted aims and ensure that the issue was debated in Parliament unless the government was sure that it was sensible. Which would be a change.

Part IV would provide that a judge must sentence in accordance with the policy from time to time and provide – as an additional and alternative ground of appeal – that a sentence could be altered by the Court of Appeal if it was not in accordance with the published policy. That would ensure consistency in sentencing without making it a tick-box exercise.

Part V would create a new offence of contempt which would be committed if a Judge’s decision was criticised by an elected politician or paid member of the staff of a political party before that person had obtained a full transcript of the proceedings and written to, or asked to speak to the Judge involved, and less than three days had passed since the writing of such a letter or the making of such a request.

JACK RABINOWICZ
Teacher Stern Selby (education, corporate)

Despite the high profile in the press of children with special educational needs (note for example that both David Cameron and Gordon Brown have children who have significant learning problems) decisions made for children with such needs are not determined by what would be in their best interest. Unlike the position in care issues, decisions in respect of special educational needs are made on the basis of what is necessary (and some would say minimally necessary) to meet those needs.

This leads to real conflict with Education Authorities and Tribunals as to how a child’s needs should be appropriately assessed and met. A greater emphasis (which would require a very limited amendment to the legislation) requiring all decisions in connection with a child’s learning disabilities to be made in their best interests would significantly make the system more child centric.

LEE RANSON
Eversheds (real estate)

In 2003, the Government reformed the stamp duty system replacing it with a new, more complex, tax called stamp duty land tax. Each year since then, Mr Brown has tinkered with the system adding to its complexity, partly to be fair in response to the property industry’s attempts to save stamp duty land tax by using artificial schemes. However, a vicious circle has developed where the additional complexity is used to develop further saving schemes. The fallout from this is that stamp duty land tax now involves large doses of bureaucracy and administration, not just at the point when land is acquired but sometimes many years later.

A good example of the level of administration and bureaucracy is the taxation of leases. On the grant of a lease, complex calculations have to be carried out to work out the tax payable and a copious number of forms completed. Then during the life of the lease, you have to think of stamp duty land tax every time there is a change in the terms of the lease or there is a rent review to see if more tax may be payable. When a lease comes to an end, further tax may be payable within 30 days if the tenant remains in occupation of the property - and the tenant will probably have forgotten about stamp duty land tax at this point anyway leading to the likelihood of interest and penalties. Anyone who does not have a PhD in advanced mathematics, several cold towels and the patience of several saints should not attempt to work out what happens if the tenant then takes a new lease of the property!

A fair tax system should be simple to operate, the tax should be easy to calculate and it should be clear when tax becomes payable without having to make diary entries years into the future.

MARK RAWLINSON,
Freshfields (corporate)

I really dont like the recent statutory codification of directors’ duties in the Companies Act 2006 which will come into force by October 2008. Directors will be obliged "to promote the success of the company for the benefit of its members as a whole" . This is a new formulation which leaves unclear whether the company will continue to have interests as an entity separate from its members or whether the interests of current shareholders will always be paramount.However, given that the Government is introducing these changes they are unlikely to welcome its further reform!

Apart from that, a pressing area for review is the rules on distributions or more broadly the laws relating to capital maintenance. With the move to IFRS it will become increasingly difficult for companies to pay dividends. What the UK can do is constrained for PLCs by the Second Directive. The UK government has been pressing the EU to look at this. Unfortunately (or inevitably, depending on your perspective) much of what the UK can do is driven by the EU - so just looking at UK law doesn’t get you very far.

DAVID RUEBAIN
Levenes (education)

Currently, children who are looked after by a local authority are disproportionately more likely to be disabled, or to have special educational needs, than otherwise. Accordingly, it is especially important that provision determined to meet their needs might be scrutinized by the Special Educational Needs and Disability Tribunal (in Wales, the Special Educational Needs Tribunal Wales) where there may be a disagreement about what is right for them. However, an appeal to a Tribunal can only be brought by a "parent" or somebody who has care for a child.

If the child is in the care of a local authority, particularly where that child does not have an involved biological parent or carer, the only "parent" who might bring an appeal to the Tribunal is the very same authority who is making the initial decision about their education. In other words, for an appeal to be brought, the authority would have to appeal against itself! Not surprisingly this is virtually unheard of and the consequence is that for these particularly vulnerable children, they are effectively denied the scrutiny that a Tribunal would bring to their educational provision.

Accordingly, I would suggest an amendment to the law to enable someone other than a parent or carer to bring an appeal to a Tribunal; for example an advocate or independent person assigned to monitor and advance the educational needs of a child in care. In addition, the law would need to establish and resource a body of individuals who can take on this role of advocacy for such children.

JO RICKARDS
Peters & Peters (fraud)

The current anti-corruption law stretches across common law and at least eleven overlapping statutes with most of the important anti-bribery law being contained in four statutes ranging over 100 years (1889 to 2001). These should be swept away in favour of a single Anti-corruption Act. The Law Commission has periodically looked at corruption and it suggested new legislation when it last considered the issue in 1998. Although a Corruption Bill, based on the Law Commission’s recommendations, was published by the Home Office in 2003 it was never tabled to Parliament, although it went as far as being examined by a Joint Committee of both Houses.

Last year Transparency International introduced a Private Members Bill to tackle corruption but it was withdrawn in October before its second reading. The UK has been the subject of criticism by the OECD for not being tough on corruption. Leaving aside everything that has been written elsewhere about prosecuting corruption, it would surely demonstrate the Government’s commitment to implement the OECD and UN Conventions Against Corruption if we were to have a single, clear, comprehensive and up to date statute dealing with corruption in the 21st century.

PHILIPPE SANDS, QC
Matrix Chambers (public international law)

Given my public international law focus I don’t think can add much on specific English law issues. The only thing I would say that it is time that Parliament had an opportunity, through committees, to scrutinise all international agreements which the UK is thinking about signing on to. The executive needs to be restricted. Similarly, exchanges of letters between governments need to be subject to parliamentary scrutiny. There is one exchange in particular between Messrs Blunkett (UK) and Ashcroft (US) that should be revoked.

In March 2003, David Blunkett (as Home Secretary) entered into an exchange of letters with John Ashcroft (then US Attorney general), giving an undertaking that the UK would contest any request from the International Criminal Court to surrender any person extradited from the US to the UK under the new bilateral US-UK extradition treaty. That undertaking should be revoked immediately. Apart from being inconsistent with the UK’s obligations under the ICC Statute, it sends out a bad signal to the rest of the world. The executive should not be entitled to give such undertakings free of parliamentary scrutiny.

CHRISTOPHER SAUL
Slaughter and May (corporate)

We in the world of corporate law have been transfixed by the progress, over the last year, of new companies legislation. Finally the Companies Act 2006 has received Royal Assent and is on the statute book. It is apparently the longest ever UK statute. It contains most controversially a codification of the duties of directors of UK companies but also a raft of other changes and reforms.

This new "aircraft carrier" piece of companies legislation makes it all the more curious that inconsistency continues to prevail in the realm of UK partnership law. Partnership, of one form or another, is a prominent vehicle of commerce in the UK and it is surprising that the law in the area is as uncoordinated and out-of-date as it is. There are three cornerstone statutes: The Partnership Act 1890, The Limited Partnerships Act 1907 and The Limited Liability Partnerships Act 2000. Some key curiosities and deficiencies which arise in relation to this group of statutes are as follows:

General partnerships, in which all partners have joint and several liability for the liabilities of the business, do not have separate legal personality in England – although they do in Scotland. It follows that, curiously enough, an English general partnership cannot enter into a contract for itself and contracting by a general partnership has to be done, in effect, by the body of all the partners. Whilst one can understand that this absence of separate legal personality does have a certain logical consistency with joint and several liability it still seems an outdated notion in 2007. Why, moreover, should things be different as between England and Scotland?

In The Limited Partnerships Act 1907, the concept of partnership is varied to enable the liability of some partners who do not take an active role in management to be limited to the amount which they contribute to the partnership. So far so good. However, the statute is now out-of-date and infelicitously drafted such that, for example, a mistake in the initial registration forms may mean that the limited partnership will in fact be a general partnership so that the benefits of limited liability would be lost. Given that limited partnerships have become increasingly important as investment entities used in private equity and venture capital investments this is a curious result.

Lastly, it is undoubtedly helpful that a new form of entity, the limited liability partnership, was introduced in 2000. This entity allows partners who are actively involved in the business of the partnership to limit their liability. This comes, however, at the price of increased regulation and disclosure and the apparent oddity that the limited liability partnership is in fact a "body corporate" and more like a company than a partnership.

It does seem that now would be the moment to modernise UK partnership law. It would be a major step forward if some consistent proposals for general and limited partnerships could be put into one consolidating partnership Act.

This is something which has been recommended by a recent Law Commission but the consultation process has not suggested sufficient economic benefit to reform (although some reform in relation to limited partnerships is to be proposed). It does seem to me, however, that the law in this area is simply out-of-date and this is not consistent with the continuing role which we all would like to see for the UK as a vibrant centre of business and finance.

RABINDER SINGH, QC
Matrix Chambers (public)

The UK needs a written constitution. In my view the single most important law reform measure that would improve things in this country is to have a written constitution like the vast majority of democratic societies around the world. The UK does have a constitution but it is not easy to find it because it is not written down in a single, accessible document with its own special status. Citizens should be able to point to it, cite it, debate about it – literally hold it in their hands.

If we do embark on this process of writing down the basic principles which govern us, including setting out clearly the powers of the legislature, the executive and the courts, I think we should also give it a special status by entrenching it, as most democracies do. This would not mean that it could never be changed to meet the needs of society but it would mean that changes would require a special process to be followed, perhaps a two thirds majority in Parliament. As things stand the theory of Parliamentary sovereignty suggests that any statute, however fundamental, can be repealed or amended by ordinary procedure in Parliament. So, with us, an act laying down the right to vote or other fundamental human rights is treated in exactly the same way as legislation governing a local authority’s powers to instal sewers and drains. That does not reflect the reality of the situation – most people know that some laws are more fundamental than others. A mature and thriving democracy like ours should have a written constitution reflecting that reality.

MICHAEL STANCOMBE
Lovells (real estate)

On a slightly bucolic note there is the issue of Chancel Repair Liability. This affects properties in England and Wales obliging the landowner to contribute to the costs of chancel repairs which can in some cases be significant. However it is currently very difficult to ascertain whether a property is subject to this liability. The liability only affects those parishes in which a medieval church is located so the majority of properties affected would be in rural communities but it can affect urban areas and is not restricted to residential properties but extends to commercial and industrial buildings. It is possible to carry out a search at the Public Records Office in Kew to try and discover whether a liability exists but this is time consuming and expensive and is not always conclusive.

There has in the past been a recommendation to abolish the liability but instead the current position under the Land Registration Act 2002 is that the parochial church councils have until October 13, 2013 to record the liability against the properties affected at the Land Registry. Failure to do so by that date means that the liability will not affect future purchasers of affected properties. However, the liability will remain with the current owner until that property is sold. In a large number of cases the current owner will be unaware that their property is subject to such a liability which may prove to be a substantial burden.

Maybe now is the time to look again at this issue to remove the current uncertainties faced by landowners trying to discover if they are affected by a potential liability or not.

DAVID TAYLOR,
Freshfields (tax)

The corporation tax system as it relates to international business needs to be overhauled. Aspects of the system have been under ongoing threat from the jurisprudence of the European Court of Justice, particularly in connection with principles of freedom of establishment and free movement of capital, and the case law has hitherto led to a somewhat narrow and defensive response from the Treasury and HMRC. This can be seen for example in connection with a recent case (Cadbury Schweppes) concerning the anti-avoidance regime for controlled foreign companies (CFCs). A response to the case announced in December is widely regarded as insufficient and, unless replaced by something more sustainable, likely only to lead to further litigation.

There was a feeling among advisers that another recent case (the FII Group Litigation case, on dividend taxation) would force more fundamental change but the ECJ decision, which was released in December, may not compel reform to the extent some had expected. Nonetheless something needs still to be done and it is to be hoped that a broad approach will be adopted, which is not based on preserving the current system as far as possible but rather is designed to ensure that the UK remains an attractive base for large business. This would include more fundamental attention to CFCs, reform of the taxation of dividends and possibly reviewing the CGT substantial shareholdings exemption. It should also involve more basic matters such as simplification and whether a corporation tax rate (30 per cent) that used to be competitive needs now to be reduced.

DAN TENCH
Olswang (media)

I would amend section 8 of the Contempt of Court Act 1981 which makes it a contempt of court to "obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings". This means that we are prohibited by law from knowing anything about the way juries reach their decisions and what influences and distractions are likely to affect them. I would amend this to allow academic studies, sanctioned by the Lord Chancellor, into the functioning of juries.

First, this would elicit useful information concerning the conduct of criminal trials (as well as the few civil trials) heard before a jury. This may result in more effective means of delivery and presentation leading to fairer and perhaps more cost-effective justice. Second, such studies may lead to a better understanding of what factors and, in particular, what media reporting, adversely affect the jury process. By allowing limited studies of this type, all parties will be in a better position to ensure that news reporting does not undermine the fairness of the trial process.

CHRISTOPHER THOMAS
Lovells (EU/competition)

I'd change the rules on standing to challenge European legislation. European legislation affects us all. Moreover, its impact can be very substantial indeed, whether we are talking about primary legislation adopted by the European Parliament and the governments of the member states, or more technical measures adopted by the European Commission. The legality of that legislation can be tested before the European Courts, which have developed a sophisticated jurisprudence to ensure that the European Community stays within the powers allocated to it and that its legislation complies with the Treaties and a host of other rules and principles that you would expect to find in a society governed by the rule of law.

But there is a problem. The EC Treaty says that either legislation is in essence aimed at and addressed to you (in which case, of course, it isn't really legislation at all), or you can't attack it directly before the European Courts. You have to wait until some implementing measure is addressed to you that leads to a dispute in the UK courts, in which case the question of the legality of the European rules can be referred to the European Courts in Luxembourg. In many circumstances, this means that the individual or company concerned has a very unpleasant choice to make: if they want to challenge the legality of the European rules, they may have to break them first.

Clearly it would be unmanageable to have a situation where anyone who wanted could challenge any legislation they pleased, regardless of their real interest in the matter. But there have been a number of proposals to achieve a better balance. The time has come for action on these proposals.

JOHN TUCKER
Linklaters (banking)

Back in 1965, the White Paper proposing the establishment of the Law Commission said: "English Law should be capable of being recast in a form which is accessible, intelligible and in accordance with modern needs". Admirable stuff but new and reforming law, whilst often addressing modern needs, seems rarely to be accessible or intelligible, as the Law Commission itself observed last June. So which law in the UK is most in need of reform and why? In the financial and commercial arena, ignoring the monolithic legislative tomes on tax and company law, the humble field of contract law is clearly out of step with modern needs. The requirement for consideration and the procedural distinction between deeds and simple contracts are archaic. For domestic facility as well as an enhancement of English law as a modern, flexible and reliable legal system for international work, simplification of those aged rules would be very welcome.

JAMES TURNER, QC
1 King's Bench Walk (matrimonial finance, family)

The piece of legislation which needs to be repealed, although it is not yet in force, is section 20(1) of the Road Safety Act 2006, which creates the criminal offence of causing death by careless driving, with a maximum penalty of five years imprisonment. Most drivers are guilty of careless driving every time they drive - we all lose concentration momentarily from time to time, whether because of some distraction outside the car or because of children fighting in the back seat or because we look away from the road to adjust the radio. Usually such failures result in no adverse consequences, but if they now result in a death the driver will face a possible five years in chokey for conduct of the sort committed by every driver every day, and which involves no criminal intent. It is a shameful piece of legislation which subverts the whole rationale of criminal law, which should be directed at those who commit harmful acts intentionally; the civil law is the proper way to deal with other matters.

IAN WARING
Berwin Leighton Paisner (real estate)

One topical issue in the field of property development, and one that might benefit from legislative intervention, is how to deal with rights to light enjoyed by the owners of neighbouring buildings - in other words, the extent to which the owner of building A should be able to constrain what his neighbour can build on site B due to building A losing light as a result of the new building.

English law on the point is an amalgam of common law principles. Every now and again, the courts are asked to adjudicate on a right to light case and with every decision the pendulum of judicial pronouncement swings back and forth depending on the merits of the particular case. So, a case involving a major city centre development and neighbouring office block owners appears to give a relatively developer friendly result, whereas only a year or two later a case involving part of a residential flat being plunged into near darkness goes against the developer.

Each perceived shift in the pendulum creates fresh uncertainty for any developer and his neighbours. In the wake of a case finding against a developer the door opens for neighbouring owners to raise what are often thinly disguised ransom demands – pay up or risk a long and expensive court case to test whether that neighbour has grounds to curtail or even prevent the developer’s scheme. Bear in mind also that such a claim may be made long after the developer, via the local planning authority, has invited that neighbour to comment on the developer’s scheme as part of the planning process.

Where landowners have freely agreed to constrain development, by way of a restrictive covenant for example, then that is something a developer can factor into his sums and scheme design. Something that is peculiarly English however is the principle that a right to light can be acquired through prescription by virtue of 20 years continuous passage of light. Other common law jurisdictions, including Australia and New Zealand, seem to get by well enough without this quirk, as does the USA. In all of those countries, contractual arrangements pertaining to rights to light are recognised but that is it.

Most right minded developers recognise that they cannot expect to obliterate the passage of light to a neighbouring property with impunity. It is the uncertainty as to the timing and quantum of any right to light claim that causes frustration and expense. There are undoubtedly sensitivities with residential and owner-occupied buildings that will ordinarily not apply in the case of investment properties (where the building owner is in it for a financial return and more often that not prevents any of its tenants gaining rights to light anyway). Nevertheless, once one accepts that developers are not inherently evil and development can be a good thing (and in the context of UK cities increasingly having to compete on a global stage any unusual constraint to delivering a modern working environment is probably better avoided), there should be enough of a middle ground to codify some principles such as:

Below a certain threshold of lost light (say 25 per cent), a neighbouring owner should only be entitled to compensation for his loss of light and cannot claim injunctive relief. Compensation to be assessed on a statutorily prescribed scale by reference to the loss of residual value of the neighbour’s property

Above the compensation threshold, the assumption is that the neighbour will be entitled to injunct the developer’s scheme. Of course the neighbour remains free to negotiate away his rights to light for a premium above the prescribed compensation

A lower threshold might apply for residential properties – say 10 per cent loss of light – before the right to claim an injunction applies

The timing of any claim for infringement of a right to light should be brought forward to be addressed as part of (or in parallel to) the process of obtaining planning consent for the developer’s scheme. Conceivably, the grant of planning consent could override any rights of light – akin to the appropriation of private rights under a CPO - but even if not, the planning process can be used to accelerate the timing of related rights to light claims

A bolder reform would be to simply prevent rights to light being acquired by prescription and/or to provide a statutory mechanism for challenging existing rights of light (whether prescriptive or express) on the grounds of antiquity or their being a unreasonable fetter on development – along the lines of the limited statutory scheme for modifying restrictive covenants affecting land use.

MAURICE WATKINS
Brabners Chaffee Street (sport)

The recent death of five-year-old Ellie Lawrenson following an attack by a pit-bull hybrid illustrates the failings of the Dangerous Dogs Act 1991. This attack comes only three months after a five month old baby was mauled to death by rottweilers in Leicester. Given that over 3,000 people in the UK are injured by dogs every year, many of them children, it is no surprise that the effectiveness of this Act has been called into question. Furthermore, the ambiguity of a number of sections of the Act has caused confusion over the remit of its regulation.

Section 1 of the Act bans the breeding and sale or exchange of four types of dog - the "pitt-bull terrier", the Japanese Tosa, the Dogo Agrentinos and the Filo Braziliero. The Act also made it illegal to own any of these dogs without special permission; banned dogs needing to be kept on a lead, muzzled in public, micro-chipped, registered and insured. The classification of banned dogs has caused problems in practice given the delay and cost of genetically proving that a dog is a banned breed. Controversially, these rules also apply to any other dog "appearing… to be bred for fighting or to have the characteristics of a type bred for that purpose". This vague and subjective provision has caused confusion for both owners of cross-breeds and enforcers of the Act and has lead to numerous disputes regarding the applicability of the Act.

Section 3 of the Act affects all dogs regardless of breed, making it a criminal offence to allow a dog to be dangerously out of control in a public place. If a dog is dangerously out of control in a public place (or a private place where the dog is not permitted), the dog may be seized and destroyed and the owners may face a maximum fine of £5,000 or up to six months imprisonment. Where the dog injures someone, however, the prescribed maximum penalty increases to two years imprisonment in addition to a possible fine. However, it must be stressed that such a penalty is only applicable to incidents in public places. This flaw is best illustrated in the Ellie Lawrenson case where the owner can only be prosecuted under Section 1, which provides for a maximum fine of £5,000 and six months imprisonment as this attack occurred on private property.

The Act has been criticised since it targets particular breeds of dog rather than the owners themselves. A fundamental amendment to the Act should be that dog owners should be required to attend training courses in which they are taught how to best control their dogs - the length and intensity of such courses perhaps being determined by reference to the dog’s breed. The reintroduction of dog licences may also assist. The revenue generated from these licence fees and training courses could then be used to fund dog wardens to clamp down on problem dogs and chase up on worries expressed by the public.

With regard to specific amendments to the Act, definitions should be made clearer, particularly with regard to the definition of what constitutes a "dangerous dog". Section 3 should also be amended to include private premises as most dog attacks occur on private premises and are therefore not covered by the current legislation. Moreover, the Act should surely provide for a sliding scale of penalties (and moreover meaningful ones) available to the courts dependent on the severity of the damage caused.

It is accepted that no amount of re-drafting, reform or re-classification of criminal sanctions will ever fully prevent dog attacks in the UK. The objective of these proposed changes is to educate owners on how to best control their dogs, to provide for stricter monitoring with the reintroduction of dog licences and street wardens, together with the introduction of more severe penalties for irresponsible owners. Such amendments are long overdue and are needed to address the inherent flaws of the Act.

TOM WEISSELBERG
Blackstone Chambers (public, fraud, commercial litigation)

I am a strong believer in the need to separate Church and State. In my view, it is quite wrong for the State to be bound up with various religions in the myriad ways in which it currently is; it is wrong that the Head of State is head of the Church of England, it is wrong that the State punishes people who blaspheme and (most pernicious of all) it is wrong that the State finances religious schools.

I am particularly concerned about the State’s role in financing religious schools. A generation of atheists and agnostics is being forced to attend church in order to try to obtain a place at a good state-funded school. Every Sunday they are required to live a lie and attend a church pretending to be religious. The State is complicit in this pretence by financing schools that oblige parents to undertake this process of apparent religious adherence. The State should not be assisting religious bodies in their attempts to make good the well-known Jesuit motto (slightly modified to match current educational jargon) "Give me a child until Key Stage 1, and I will give you the man". It will be interesting to see how these atheists and agnostics cope with their children coming home repeating religious dogma taught during the school day.

As a symbolic beginning of the reform process, I would repeal the Submission of the Clergy Act 1533, one of the remaining relics of the peculiarly Henrician solution to royal marital difficulties. The Act operates to prevent the Church of England from regulating its own affairs without Royal Assent (and was used at the Restoration to repudiate changes made to the constitution of the Church of England during the Commonwealth). The reform of other statutes would then follow so as to give effect to a worthy Enlightenment goal – the separation of Church and State.

Explore Law

• Corporate Law

• Public Law

• Columnists

• Law Panel

• Student Law

• Law Reports

Times Recommends

• Future Stars of the Bar 2008
• The £60 million makeover: new building, new law lords
• Jobs: be careful how you ring changes