Key to reform

The speed at which the Government implements the Law Commission's recommendations is a cause for concern, writes Anita Rice.


‘One of the hallmarks of an advanced society is that its laws should not only be just but also that they should be kept up to date and be readily accessible to all who are affected by them.’ So said the 1965 White Paper proposing the creation of the Law Commissions in England and Wales, and Scotland.



Given law dominates all our lives, one would think it best all round that the law is relevant. Better still, that it is also widely and easily understood – which is exactly what the Law Commission is charged with ensuring.



Sir Terence Etherton, chairman of the Law Commission in England and Wales, is quick to defend its record: ‘The Law Commission is vital in making the law more just and more accessible, and plainly plays a great role in making the lives of all our citizens easier and better. We have produced 250 final reports since 1965. These projects cover every major area of law – criminal, family, property and many others.



‘We are not slavishly following the political or public view of the moment. We are a unique body, the only permanent body that can research the law in depth, including comparative law, and take a long-term view, even if it takes two, three, five years,’ he says.



Recently, the commission closed a web discussion forum to consult on new projects to be included in its tenth programme of law reform. Some 180 people contributed. Sir Terence says: ‘We are always looking for new ways of doing this [involving the public]. Just to put this in context, one of the distinguishing features of our law commission – one of over 60 worldwide – is that on every single one of our projects there has always been a full public consultation. This feature does endorse the principle that we are here to recommend law is made simpler and more just for everyone. It is very important to us that when we write reports they are not just for specialist lawyers, but for anybody who would be affected by our proposals or has an interest in our proposals.’



To date, the commission has successfully repealed more than 2,000 obsolete Acts and partially repealed thousands of others.



While its mission is rarely disputed – most professionals readily note the value of having an apolitical, expert body systematically examine the law of the land – the speed with which its recommendations are acted upon is often cited as a cause for concern.



In its latest annual report, published last spring before Sir Terence was appointed chairman, the commission itself singled out the fact that 26 of its reports were awaiting implementation.



‘We continue to be told that some reports issued more than ten years ago will be implemented “when parliamentary time becomes available”. This is a source of very real concern to us,’ the report said.



Gary Slapper, professor of law at the Open University, cuts straight to the chase. ‘It is a matter of annoyance both in legal circles and in political ones that several of the commission’s important proposals, like those concerning criminal law, have not been swiftly implemented,’ he says.



Plans to update anti-corruption legislation have, for example, been debated for a decade. As public life regularly throws up scandals – witness cash for honours and the BAE affair – commentators are concerned current laws dating back to 1889, 1906 and 1916 are seriously out of date.



The government has also just asked the commission to look at the law of bribery.



Last month, Home Secretary John Reid told MPs there was so much ‘significant and influential opposition’ to the planned corruption legislation reform that it was being sent back to the Law Commission for reconsideration. All this ten years after the commission’s original 1997 report and nine years after the then Home Secretary, Jack Straw, promised to introduce the reform ‘as soon as possible’.



Professor Slapper highlights corporate manslaughter legislation as another bone of contention. He recalls: ‘On 30 June 1999, at the Old Bailey, in the prosecution for common law manslaughter of Great Western Trains following the Paddington rail disaster, Mr Justice Scott Baker regretted that the Law Commission’s 1996 recommendations in this area had been ignored by the government “to live for years on a shelf gathering dust”. Too much of the excellent analysis and draft legislation of the commission is allowed to suffer a similar fate.’



The proposed reforms mean organisations could to be tried for corporate manslaughter if the way any of their activities are managed by senior managers causes a person’s death through a gross breach of a duty of care.



The Corporate Manslaughter and Corporate Homicide Bill is still making its way through Parliament. Having been heavily amended during its recent second reading in the Lords, the home secretary and the Attorney-General are in talks about how to take the legislation forward. There is no date set for its return to the Commons for a third and final reading.



Even the Lord Chief Justice, Lord Phillips, recently expressed frustration at how the commission effectively had ‘one hand tied behind its back’ over its high-profile homicide law review because it was required to take account of the continuing existence of mandatory life sentences for murder. Under the Criminal Justice Act 2003, judges are obliged to fix the minimum tariff that killers must serve before being considered for parole.



The Law Commission recommendations would divide homicide into three categories instead of the two – murder and manslaughter – currently in use. First-degree murder, the most serious category, would be restricted to killings with intent to kill or cause serious injury and the defendant is conscious of the risk. Second-degree murder would including killings where the defendant intended to harm, rather than kill, or was provoked. For this category, a life sentence would be discretionary.



The government is now consulting on the commission’s latest proposals, submitted in December last year and superseding previous recommendations in past years to reform specific aspects of homicide legislation.



Lord Phillips said he hoped, but was not ‘optimistic’, that the Law Commission’s reform would be successful. ‘Murder is a political hot potato and that is why altering the mandatory life sentence is not on the agenda,’ he said.



Sir Terence declines to comment further on Lord Phillips’ comments, saying it would not be appropriate, but adds that he is optimistic about the government responding positively to the homicide report. However, he strongly rebuts suggestions that the commission lacks teeth.



‘The Law Commission is not a neutered animal – that conveys the wrong impression,’ he says. He notes the government must provide a provisional response within six months, and a final one within two years of a report being submitted. But he acknowledges that the government deals with issues of the day while the commission deals in the medium to long term. And, of course, parliamentary time is limited. That said, he concedes he would like to see a parliamentary mechanism in place to speed up the process.



Lack of time, says Professor Slapper, is never an excuse. While acknowledging a sovereign political body cannot be bound to legislate according to commission proposals, he argues that ‘there should be legislated a mechanism by which government is required to report to its employer – the general public… and if by deliberation or lassitude does nothing about what the commission recommends, we should be told why, explicitly’.



Law Society President Fiona Woolf echoes this sentiment, saying: ‘The government should have not only to respond to Law Commission reports in a timely fashion but also set out a timetable for implementation or clear reasons why it is not proposing to implement the recommendations, in whole or in part.’



Whatever form such a ‘mechanism’ takes, most agree that given the government’s seemingly limitless appetite for passing legislation – 365 Acts of Parliament and more than 32,000 statutory instruments have been passed since 1997 – the commission’s role is more important than ever.



Attention is now turning not just to the speed of reform, but to the quality of new legislation. Ms Woolf says: ‘There should also be a proper system of post-legislative scrutiny, where a proper examination of what worked, what didn’t and why, could help improve the legislative process for the future.’



A Department for Constitutional Affairs spokesman says: ‘It is vital the law is constantly kept under review to reflect changes in society. The government must consider any proposals of law reform in the context of wider policy issues. This means that recommendations by the Law Commission cannot always be implemented within a specified timeframe.’