'Always Speaking’ Provisions: Legal Transplants Gone Awry

In-person at UCL's Faculty of Laws and Online on Zoom Webinar

‘Always Speaking’ Provisions:
Legal Transplants Gone Awry

Lecture to be given by Dr Martin David Kelly, University of Edinburgh

About the talk

The principle that laws are typically ‘always speaking’ is perhaps the most important legal principle that lawyers have never heard of. Lord Burrows has claimed that the principle is ‘trite law’ but that what it ‘precisely means is open to debate’, and Lord Leggatt recently described the ‘always speaking’ metaphor as ‘enigmatic’. The lack of clarity over this principle is exacerbated by the fact that many Interpretation Acts (and some Constitutions) of common-law jurisdictions stipulate that their laws are presumed to be ‘always speaking’.

In this lecture, I trace the origins of such ‘Always Speaking’ Provisions, back to 1840s ‘Canada’, and show how they spread across the common-law world. I argue that the label “the ‘always speaking’ principle” is now used to name at least four different types of principle, each of which responds to a different issue (albeit that they share a theme: the relationship between law and change over time). I then show that, through a series of misunderstandings and transplantation errors, ‘always speaking’ provisions have come to mean something very different from what they were originally intended to mean.

About the speaker

Dr Martin David Kelly is a Lecturer in Legal Theory at the University of Edinburgh and a former practising solicitor (England & Wales)

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