Laying down the law

Andrew Towler looks at the work of the people who make sure our justice system remains up to date and relevant

Major law reform is very much in vogue this year with the passing of the Land Registration Act (LRA) and long-running debate about the criminal justice system, culminating in the White Paper 'Justice for All'.

While these particular reform issues grabbed the headlines, there is a constant stream of other proposals being passed on to government throughout the year courtesy of the Law Commission.

In September, the Lord Chancellor's Department (LCD) published three consultation papers about possible regulatory reform orders to implement commission reports on third party rights against insurers, execution of deeds and documents on behalf of bodies corporate and the rules against perpetuities and excessive accumulations.

Using the orders could cut out the parliamentary delays that commission reports usually face.

As well as other recent reports on bail, housing laws governing the rental sector, and sentencing for multiple offences, it was the Law Commission that has spent the past six years in collaboration with the Land Registry doing the leg-work that culminated in the LRA.

The commission is an independent body created by Parliament in 1965, and is based a stone's throw away from Gray's Inn in London.

It is headed by five LCD-appointed commissioners led by chairman Sir Roger Toulson, a High Court judge who took up the post in September for a three-year tenure.

The four other commissioners, each with expertise in separate areas of law, are Professor Hugh Beale QC, Stuart Bridge, Judge Alan Wilkie QC and Professor Martin Partington.

They lead teams of lawyers and researchers examining commercial and common law, property and trusts, criminal law, and housing and administrative justice respectively.

Prof Partington, a qualified barrister and formerly dean of the law faculty at Bristol University, says of the commission's remit: 'We have a statutory responsibility, under the Law Commission Act, to review all the law of England and Wales - which is of course nonsense in practice.

Each commissioner and his team of lawyers must be practical about the number of projects they undertake, but having three to four running concurrently per commissioner is not unusual.'

The selection of which areas of law to examine is obviously a precise science as projects must be costed and can run for three years or, in the case of the Land Registration Bill, six.

Prof Partington says: 'Two years ago we conducted a broad consultation exercise to see what the public and profession thought we should be looking at.

We try and address legal areas of public importance, but sometimes the government ask us to look at areas they consider a priority.'

Michael Sayers, a barrister and the commission secretary since 1994, says many sources suggest investigations: 'These include government, the commission as the reform experts, the legal profession, interested professional groups such as accountants or doctors, or simply the public.'

Mr Sayers says the three criteria taken into consideration when deciding an area for review are its importance (if it is a major legal problem or affects a great number of people), whether the resources - financial or human - are available, and whether it is a suitable project for the Law Commission.

'For example, changing the speed limit would be a change in the law, but would not be a legal issue as such,' he says, with reference to the third criterion.

Once a project is completed, it is released for consultation and then compiled into a report, usually accompanied by a draft Bill, and sent to the government for consideration.

Since the inception of the commission, more than 100 of its reports have been implemented as law and it currently boasts a 65% success rate, suggesting a harmonious and fruitful relationship with the government.

Yet there remains some consternation within the commission over its relationship with ministers.

A regular complaint is the length of time it often takes for commission reports to be taken forward, hence the experiment with regulatory orders.

Part of the problem is that while, for all intents and purposes, the Law Commission is an independent body, the Lord Chancellor not only selects commissioners but also approves their work programme every couple of years.

Prof Partington, who says he works in 'constructive tension' with government departments, explains: 'As a commission, the proposals we make are our proposals, independ-ent of policy, but if our work is to get into the statute books, then the government must approve it.

'The price of independence is that the government don't always find time to address situations that don't fit in with their agenda, so we have had to take on board projects that wouldn't necessarily be our priority or don't meet our criteria.'

Each body is conscious of the other's independence, says Mr Sayers, who 'fully accepts we are an advisory body and the government is free to reject our proposals'.

'The reservation we have is that there are currently nearly 30 reports outstanding,' he continues.

'While there are good reasons why some of these haven't been implemented yet, others have simply been left too long and we will pursue these quite hard for progress.'

Such interaction with the government, as well as the opportunity to influence and change laws, is seen as a major job attraction by Elaine Brown, team manager of the property and trusts law team.

Ms Brown's team is currently undertaking projects looking at easements and the termination of tenancies.

'At the Law Commission, you get the opportunity to look at law and really get to grips with it from an angle you are unlikely to experience anywhere else.

In my previous job, working in the trust office for the Government Legal Service, you would deal with legal problems on an individual case basis, whereas now the work I do affects so many more people.'

Ms Brown, also a qualified barrister, was involved in the land registration project and says she took great satisfaction from 'being at the forefront of a team that was bringing up to date a statute that had existed for 75 years'.

So how frustrating is it occasionally to see the government reject a proposal she has spent years working on? Ms Brown replies: 'A proposal becoming legislation is the ultimate, but there are other ways your work can influence the law.

Judges often see the reports you submit and adjudicate in court in a slightly different manner because of your efforts.'

Those views are shared by Liz Finlason, another GLS lawyer and now a member of the criminal law team pushing hard for the codification of criminal law.

'I don't find it particularly frustrating that your work doesn't always go to the final stage of implementation,' she says.

'From my position as a lawyer, I get satisfaction from having my work looked at and thought about by the government - you produce a product you think offers a solution and that provokes thought.'

Ms Finlason's work resulted in the Law Commission's guidance to the profession on the compatibility of bail law with the Human Rights Act - an example of other types of work the commission undertakes.

'Other roles we have involve the consolidation of statutes - putting widespread legislation on the same subject into a single act - and the abolition of statutes that have become obsolete,' says Mr Sayers.

'The process of improving the law may seem to take a long time and sound dry, but our ultimate goal is to improve law and thus life.'

Prof Partington concurs.

'I firmly believe we are a public service that affects a lot of people's lives, without them necessarily realising it,' he says.

'But I would add that we are genuinely dependent on an informed response to our consultations from practitioners, so we can continually improve the quality of our proposals - that way everyone can have a say in the laws of the future.'