The Law Commission: reforming the law

This blog was contributed by Charlotte Crilly, Teaching Fellow for Undergraduate Laws.

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The work of the Law Commission

Society changes all the time, and the law must try to keep pace. New technologies in particular require the law to adapt to provide for situations that are completely new. How should the law deal, for example, with driverless cars, which may soon become a reality but which are not envisaged by any laws now in force.

Of course the courts can adapt the common law and parliament can enact new statutes, but sometimes a more detailed analysis of law reform is needed. This is the work carried out by the Law Commission for England and Wales.

The Commission was created by statute, the Law Commission Act 1965. It is independent of government and aims “to ensure that the law is as fair, modern, simple and as cost-effective as possible”. It works by identifying potential projects in regular programmes for law reform, which must then be agreed by the Lord Chancellor.

  • Once a law reform project starts, the Commissioners, lawyers and research assistants research the area of law in detail and formulate provisional proposals for reform.
  • Then a consultation paper is published, setting out in detail the existing law and its defects, and giving the arguments for and against possible solutions.
  • There is then a period of consultation on the provisional proposals, when any interested party can give their views.
  • At the end of the project, a report is submitted to government, giving the final recommendations for the reform of the law.

 Justice Committee Inquiry

The Law Commission is currently the subject of an ongoing Inquiry by the House of Commons Justice Committee. The Inquiry is considering the Commission’s funding and its current programme of law reform. This blog post draws on oral and written evidence given by the Law Commission to the Justice Committee Inquiry. If you’d like to see the evidence yourself, or watch a video of the oral evidence, you can access this at: https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/work-of-the-law-commission-17-19/

Law reform projects

In evidence to the Justice Committee Inquiry, the Chairman of the Law Commission emphasised the real impact that law reform projects can have on people’s lives. He gives the example of the law on wills, noting that the present legislation on wills dates from the 19th Century, and not much has been done to it since. The formal requirements for making a valid will are very strict, so that if one of the two witnesses to a will was not in the room when the testator signed, the whole will is invalidated. This can cause very serious hardship for families affected by this feature of the law.

The Commission’s projects span a diverse range of legal topics. Some of the projects in the current law reform programme include:

  • A Modern Framework for Disposing of the Dead
  • Automated Vehicles
  • Electronic Signatures
  • Simplifying the Immigration Rules
  • Smart Contracts
  • Surrogacy

 The problem of implementation

Although a lot of work goes into the Commission’s recommendations, the government is under no obligation to enact the proposals as law. This is one significant weakness of the Law Commission as a law reform body. There are many competing demands for parliamentary time, and the Commission’s proposals may simply not be the highest priority. Law Commission reports will almost always deal with quite technical and detailed areas of the law, which may not be seen as political priorities by the government.

Measures have been put into place to address this problem. Some projects which are regarded as uncontroversial may benefit from a special parliamentary procedure which was approved in 2010 in order to improve the rate of implementation of reports. The allows some law reform bills to be considered and scrutinised despite the pressures of parliamentary time.

Following a Protocol agreed between the Law Commission and the government in 2010, once the  Commission has published a final report, the government must then provide a response within a year. And under the Law Commission Act 2009, the Lord Chancellor must report to parliament annually on the government’s progress on the implementation of reports.

Despite these recent measures, the problem of implementation is still a fundamental difficulty for the operation of the Law Commission. It is open to the government to completely reject a law reform report, and indeed it has sometimes done so. Even where proposals are enacted as law, this often takes a long time, by which time society and the law may have moved on. In evidence to the Justice Committee, the Chairman gives the example of a report in the late 1990s about damages in fatal accident cases, which successive governments failed to implement. Subsequently a case went to the Supreme Court, and the court decided to make the change the Law Commission had recommended in 1999. It therefore took 16 or 17 years for these reform proposals to become law, and in the end they were implemented by the judiciary rather than by the government.

The problem of independence

One of the strengths of the Law Commission is that operates independently from government; it is not bound by government policy.

As with most public bodies in the UK, the Law Commission has seen a significant reduction in funding in recent years. It is still able to accept direct references for a law reform project from government departments when the department agrees to fund the project. It is more difficult to do other, projects which are not directly funded in this way. This means that there are many important law reform projects which may never be completed. As the Commission states in its evidence to the Justice Committee:

“The fact that we cannot find a department willing to fund a law reform project does not mean that the work is not important. Many projects which aim at ensuring fairness, increasing legal efficiency or improving the transparency and accessibility of the law will struggle to attract funding.”

If the Commission only takes on projects for which it is directly funded by government departments, these will be projects which are politically expedient for the government, rather than those which are legally important. Although the Chairman makes it clear that government departments cannot tell the Commission what law reform conclusions to come to, there must be at least a perception of a lack of independence if the government are paying for a law reform report. As the Commission states in its written evidence to the Justice Committee,

“The cumulative effect of the reduction in our core funding is that the Law Commission is in danger of becoming like a barrister waiting for the next brief, with no choice in the projects we take on and no ability to give sufficient priority to important work that will benefit a great many people. The independence of the Commission, its standing in the eyes of stakeholders and the statutory functions for which it was set up may be compromised by the impression of skewed priorities and limited independence.”

Law Commissions around the world

Despite these problems, the Law Commission has been recognised as being successful at what it does. A recent government review commented positively on the quality and value of its work (see https://www.lawcom.gov.uk/document/law-commission-triennial-review/) .

The Law Commission model has been replicated in countries around the world, for example New Zealand, Australia, India and Hong Kong, each of which have similar law reform bodies.  Why not have a look at the website of either the Law Commission of England and Wales, or another Law Commission, to learn more about the work they do.

Further reading

The Law Commission’s website is at: https://www.lawcom.gov.uk/ and you can also follow the Commission on Twitter: @Law_Commission.

You can use the Online Library to access these articles about the Law Commission:

  • Sir Geoffrey Palmer Q.C., ‘The law reform enterprise: evaluating the past and charting the future’. Law Quarterly Review 2015, 131(Jul), 402-423.
  • Philip Sales, ‘Law reform challenges: the judicial perspective’. Statute Law Review, 2018, vol 39, No 3, 229 – 243.
  • Julien Du Vergier, ‘Instruments of law reform: the Supreme Court and the Law Commissions of the United Kingdom’. Cambridge Journal of International and Comparative Law 2012, 1(2), 47-54.

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