Skip to main content

Work of the Law Commission

Volume 728: debated on Wednesday 1 March 2023

Motion made, and Question proposed, That this House do now adjourn.—(Fay Jones.)

It is my pleasure to speak in this slightly early Adjournment debate on the work of the Law Commission. By that, I mean the Law Commission of England and Wales, as opposed to the Scottish Law Commission, founded in 1965, which does excellent work north of the border, and the Northern Ireland Law Commission, which sadly has not been functioning since 2015. On that note, as a member of the Northern Ireland Affairs Committee, I very much hope that as part of the normalisation of politics in Northern Ireland, we see that body working and contributing to better law and law reform in Northern Ireland. It is to the Law Commission of England and Wales that my remarks relate, and I am glad to see my right hon. Friend the Minister in his place.

First, I will talk about the purposes of the Law Commission. It is nearly 60 years since it was created by one of my predecessors, the noble Lord Gardiner. Since that time, it has enjoyed the stewardship of many distinguished senior judges and dedicated lawyers and civil servants. Its objectives remain clear: first, simplification and modification of the law; secondly, the law’s codification; thirdly, the removal of anomalies in the law; fourthly, the repeal of obsolete and unnecessary enactments; and, finally, the consolidation of legislation. Its objectives have been restated in recent years in its reports, and they are worth stating here on the Floor of the House. They are as follows:

“To be the authoritative voice on law reform; To make a difference through our law reform work; To be proactive in promoting the need for law reform in key areas and achieve ‘good law’;”—

a term that I will adopt—

“To have a strong reputation in the UK and abroad for being effective in the delivery of law reform; To attract the best talent and be an excellent place to work.”

I am pleased that as part of the Law Commission’s developing reform, back in 2020 when I was Lord Chancellor, I agreed a return to a full funding model for the Law Commission, with a focus on where law reform is most needed, rather it being a question of where the finances were available. While the cross-Whitehall funding source model, where other Departments were encouraged to work with the Law Commission on projects, was an interesting way to try to develop new initiatives on political priorities, it seemed to me that it did not provide the level of certainty needed for a longer-term view, for the retention of quality lawyers and researchers, and for the Law Commission to be able to plan with confidence over several years, rather than from year to year. The Law Commission works not just with the United Kingdom Government, but with the Welsh Government in Cardiff, and I will raise a very good example of that in a little while.

I draw the House’s attention to the important contribution that the Law Commission has made to the law as it has developed over the past few years. When the issue of the abuse of intimate images—a sensitive issue particularly affecting many women and girls and young men in our society—raised its head, the Law Commission was asked to review the law and publish its final recommendations last year. It created a new proposed framework that dealt with a range of issues that went well beyond the reform that we made to the law on upskirting, to deal with deepfake images and the like—current, relevant and important concerns of the general public. I am glad to say that the Government adopted those recommendations and that we now see them in the Online Safety Bill.

The Law Commission has fresh recommendations that merit close examination by Ministers in the Home Office. Last November, it produced a series of recommendations to reform the system for the recovery of the proceeds of crime—again, a germane and relevant issue when it comes to the need for those who profit from criminality to repay the proceeds of that conduct. In particular, I was struck by its sensible recommendations to accelerate confiscation proceedings, to allow the taking of assets if a particular order was not paid—a much stronger approach to enforcement—and to strengthen restraint orders themselves, which are so important at the early stages of confiscation of the proceeds of crime. The proposals in that report merit immediate adoption by the Government—if not in this Session than certainly in the final Session before the end of the Parliament.

I was struck by a report that the Law Commission published in 2020, which was compiled for the Commission by independent economists. They revealed in their analysis that if the Law Commission’s recommendations were implemented for five key projects that they examined, the economic value of that implementation would exceed £3 billion over a period of 10 years. That is a striking amount of money involving only five projects. There are many more projects that the Law Commission has commissioned and completed, and I suspect the overall financial benefit to our country would significantly exceed even that hefty sum. In a wider analysis of 11 projects completed by the Law Commission, the independent analysts discovered that those projects would positively contribute to the lives of well over 27 million people in our country. This is therefore not a niche issue or a dry matter just for lawyers; it is a matter of public good and public benefit.

One of those five projects was the adoption of the sentencing code. For many years, the law of sentencing in England and Wales has been—from my own professional experience—a miasma of conflicting laws of various ages. It has often been more of a challenge for judges and lawyers to work out which provision applies in which area than it has been to focus on the outcome of sentencing, which surely has to be the justice of the case and the need for condign punishment.

The Law Commission’s work on developing a consolidated code, which would be much easier for judges and lawyers to use and would reduce the danger of mistakes or the need for appeal, was very much the preoccupation of the Court of Appeal, and something that I thought merited reform. I am glad that, as Lord Chancellor, I helped drive through both the paving Act and the Act that established the sentencing code in 2020. Why did I do that? Again, it was not just because of an obsession with neatness, though I do like neat and tidy laws; it was because the estimate of the reduction of costs was a grand total of up to £256 million over a period of 10 years. That is no small beer when it comes to the criminal justice system, and I am proud that the Ministry of Justice did that during my time as Lord Chancellor.

There are many other examples of how the Law Commission has benefited this country. The creation of the Fraud Act 2006, which simplified the law of fraud, making it easier and more straightforward to understand and use in prosecutions, was the work of the Commission. The Care Act 2014, which ensured that the rights of carers and their families were better enshrined in law—again, something I was involved in as a Back Bencher—was also the product of Law Commission work. This is not merely dry talk for lawyers; this is about good law and good law reform protecting citizens and saving resources.

Law reform can ensure that new technology is better and more safely used and that the environmental protections we need in the light of climate change are in place to promote sustainable growth. Good law can lead to improvements in wellbeing and welfare by opening up opportunities and helping to improve health outcomes. Good law leads to clear and streamlined processes. It reduces inefficiency and increases predictability, which is great for businesses and good for investors, for our public sector and for all our citizens. There is a strong economic case for good law. Above all things, it helps to maintain the integrity of our legal system and of the rule of law itself. Achieving greater certainty in the law will reduce the need for litigation or challenge via the courts, which is a powerful way of ensuring that not only access to justice, but justice itself, is strengthened and deepened.

A busy Government with a packed agenda will say—I heard this many times during my long service on the Parliamentary Business and Legislation Cabinet Committee —that there is no time in the legislative programme for such worthy projects. My argument is simple: let us make the time, and let us make this a priority. I am not sure that it is simply a question of having more hours during the week to do the work; I think it is much more about our sense of priorities. To allude to something Aneurin Bevan said in another context, it is about the religion of priorities. For example, if the Government made a couple of slots for law reform available in each King’s Speech, alongside the well-worn phrase that comes at the end of the Gracious Address about “other measures”, it could be incredibly helpful to business managers.

Law Commission Bills start in the Lords, where there is a special, well-established Committee procedure for suitably expert Members of that House to scrutinise and refine proposed legislation. In this House, we have Standing Order No. 59, which allows us to fast-track Law Commission Bills by referring them to a Second Reading Committee

“unless the House…otherwise orders”.

That is a very good head start, but I am not sure that it is enough for getting Law Commission Bills through this place.

Where the context and content of Law Commission Bills is entirely uncontroversial, there is no difficulty. Sometimes, however, although the content may not be controversial, the context is. There is always a danger present in the minds of business managers that the scope of such a Bill may be just wide enough to allow amendments of a controversial nature. Let us take firearms legislation as an example. The criminal legislation on firearms is a mess: we have very good, tight firearms legislation in this country, but anybody who has read the Firearms Act 1968 understands that it needs consolidation and a thorough spring clean to make it much more comprehensible to practitioners and the general public. That seems uncontroversial, but inevitably there might be amendments to such a Bill that would be very controversial indeed. That is just one example that I am sure business managers would be concerned about, and no doubt the Leader of the House would have a view.

The Minister will say that these are matters for the House, not for the Government, but I think it would be helpful if he took the message to the Leader of the House —I know he will do so, because he is a former Paymaster General and knows the machinery of government—and asked her to work with the Procedure Committee. They could look again at how Standing Order No. 59 and the fast-track procedure in Standing Order No. 58 could allow Law Commission Bills to go straight from Second Reading to Third Reading without the need for a full Committee stage. That would be a sure-fire way to ensure that we can use Law Commission’s recommendations more frequently and make good law more regularly.

I pray in aid a very good example from Wales. The Law Commission’s report “Regulating Coal Tip Safety in Wales”, which was laid before the Senedd on 24 March last year, is very important in the context of the management of disused coal tips. I can tell the House from considerable knowledge, as a former Secretary of State for Wales and a proud Welshman, that the issue is very resonant and salient in many parts of south Wales, particularly the old coalfield.

The Law Commission report then allowed the Welsh Government to produce their White Paper in May last year. A full response is coming this month, and I hope that primary legislation will follow in this current Session of the Senedd. That is a good example in Wales of everybody working together. We also do it well here in the United Kingdom Parliament, or we can do it well, but I do think we need more moments such as that when sensible provisions, such as the ones I have outlined—and there are many more that the Law Commission has proposed—can be done.

Before I end, let me say that I am particularly pleased that the Government are going to act on a very important Law Commission recommendation on economic crime. We debated that legislation some weeks ago, and it is currently before the other place. That is another example of how we can use its work to great effect.

Finally, all the arguments we had about the law of nuisance were strengthened by the fact that the Government were acting on a Law Commission recommendation to codify the common law of nuisance and put it into statute. Those were the arguments that I deployed when I was at the Dispatch Box on Second Reading of the Police, Crime, Sentencing and Courts Bill, which is now law. There are many other examples I could give.

I know that my right hon. Friend the Minister, in his response, will pay more than lip service to what his colleagues in the Ministry of Justice are saying. I know that he, as a supporter of the Law Commission and the work of Sir Nicholas Green and all the team there, will want to shower praise on them, and rightly so. What I am looking for from my Government is a sense of commitment to making sure that we can create more good law, and that law reform is not a mere adjunct for the lawyers, but is at the heart of what it will take to make this economy grow and make this country more productive in the future. That, of course, is the key challenge for our Government and, indeed, future Governments.

I am grateful to my right hon. and learned Friend for securing this important debate and, more broadly, for his contribution to this country’s criminal justice system as a lawyer, somebody who sat on the bench, a Justice Minister, a Solicitor General, and a distinguished and reforming Lord Chancellor and Secretary of State for Justice. There is much from his tenure in that office of which he should rightly be proud. I also had the privilege and the pleasure, when an Under-Secretary of State for Justice, of serving under his leadership. I will also highlight at the outset, in response to one of his comments—and with more than a nod to the Whip, my hon. Friend the Member for Brecon and Radnorshire (Fay Jones)—that many things are done very well in Wales.

Let me start by offering my thanks on behalf of the Government to Sir Nicholas Green and his team for the hugely valuable work that the Law Commission undertakes, working with experts and the public to make sure the law in England and Wales remains modern, simple and fair. The sheer scale and variety of its contribution to law reform since it was established is extremely impressive, and it is difficult to find an area of the law that has not been improved in some way at some time by its work and its recommendations.

As my right hon. and learned Friend has set out, the Law Commission was created by the Law Commissions Act 1965 for the purpose of recommending reform to the law. It is a statutory arm’s length public body sponsored by the Ministry of Justice, and its principal objective is to promote the reform of the law by reviewing given issues and making appropriate recommendations for change. In making those reform recommendations, its main aim is to seek to ensure that the law remains fair, modern, simple and cost-effective.

A number of specific types of reform are covered by the 1965 Act and have been enacted by the Law Commission through its work. They include the simplification and modernisation of the law through recommendations on codification, the removal of anomalies, and the repeal of obsolete and unnecessary enactments. Its remit also covers the consolidation of legislation and the streamlining of overcomplicated law, as well as the formulation of new legal approaches to emerging high-profile social policy issues.

When determining what reforms to recommend, from time to time the Law Commission consults widely, taking views from judges, lawyers, Government Departments, the voluntary and business sectors and the general public, to help draw together new programmes of law reform that are then submitted to the Lord Chancellor for their approval before undertaking the work. It can also take on individual ad hoc projects referred by Government Departments.

Before the Law Commission decides to review an area of law reform, it considers them against certain criteria, including their importance or the extent to which the law is unsatisfactory and the potential benefits of reform. It considers whether the independent non-political organisation is the most suitable body to conduct a review of the law in that area. Lastly, it considers resources, so that full consideration is given to whether the valid experience of its commissioners and staff is engaged, whether funding is available and whether a project would meet the requirements of other work, if included as part of a programme.

It is fair to say that the Law Commission has a strong and well-founded reputation for considering immensely technically complex areas of the law, which can be significant for individuals and businesses. Its independence and commitment to open consultation is a key asset when trying to build consensus on sensitive issues across a broad range of different interests.

My right hon. and learned Friend rightly alluded to the economic value of the Law Commission’s work. In analysis undertaken by two independent economists in 2020, the figures are impressive. Its five largest projects over recent years have generated a net present value of more than £3 billion over 10 years. Even its most technical codification projects can save money. For example, the sentencing code reforms enacted in the Sentencing Act 2020 are estimated to generate savings in the justice system of up to £250 million over 10 years. The Electronic Trade Documents Bill, based on Law Commission recommendations, is an example of the Law Commission’s value and influence on Government business currently before Parliament. The impact assessment for the Bill estimates net benefits to UK businesses of £1.137 billion over 10 years when enacted. These are not insignificant sums.

Recommendations from at least four of its recent criminal law projects are currently in or about to be before Parliament. They include the protection of official data project, leading to new espionage offences in the National Security Bill; the modernising communications offences project, which has led to communications offences in the Online Safety Bill; the intimate image abuse project, alluded to by my right hon. and learned Friend, where the Government have publicly committed to partial implementation in respect of the sharing offences in the Online Safety Bill, reflecting the scope of that legislation; and the corporate criminal liability project, from which the Government have publicly committed to including a new “failure to prevent fraud” offence in the Economic Crime and Corporate Transparency Bill.

On the implementation of the Law Commission’s work more generally, my right hon. and learned Friend has set out his concerns—if I can put it that way—that there can sometimes be unnecessary delays implementing its recommendations, and some may remain unenacted after publication. There are many reasons why some recommendations are not taken forward. Sometimes, there is a simple change of ministerial priorities or possibly, in recent years, of Ministers. There may be a lack of parliamentary time.

However, in addition to ministerial commitments, as he alluded to, a new parliamentary procedure was introduced for uncontroversial—if I may put it that way—consolidating Law Commission Bills. This procedure helps to reduce the time that this type of Bill spends on the Floor of the House, by providing for certain stages to be carried out in Lords Committee. That makes perfect sense where a Bill consolidates existing provisions without making substantive changes, and where that consolidation has been done by the experts at the Law Commission to accurately reflect the existing law passed by Parliament.

My right hon. and learned Friend mentioned Standing Order No. 59 and its procedures. I hear what he said, but any changes to Standing Orders would be a matter for the House to consider. He may wish to raise this matter with the Lord President of the Council, my right hon. Friend the Member for Portsmouth North (Penny Mordaunt), and I will ensure that her office is made aware of what he has said. The Procedure Committee may also wish to take a view on that. I am fortunate in that my Parliamentary Private Secretary, my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell), is a member of that Committee, so I am sure he will be able, in that capacity, to ensure that it is aware of the views that my right hon. and learned Friend has expressed today.

Implementation rates can, of course, vary wildly year on year, depending on a number of factors. It is not unusual for implementation to happen some time after the publication of final reports. If we look at implementation over the last 10 years since 2013, 61 projects have been completed but only 13, or 21%, have been implemented, although 22, or 36%, have been accepted by Government either in full or in part. In the last five years since 2018, 27 projects have been completed, with only one, 4%, implemented in full or in part, although 12 reports have been accepted either in full or in part.

The more recent statistics are reflective of the fact that the last five years, as I think right hon. and hon. Members will agree, have certainly not been typical in parliamentary terms, in relation to the nature of what this House has had to deal with—hence the vast majority of projects that still require further consideration before they receive a Government response. Looking over a longer period, the overall figures on the implementation of the Commission’s work are very impressive. In fact, between 1965 and 2022, 64% of Law Commission law reform reports were implemented, in whole or in part, with only 13% rejected or 5% superseded. Therefore, in total, about two thirds of all Law Commission recommendations have been implemented to date, with only a small fraction being explicitly rejected by Government.

Full details of the implementation status of all Law Commission reports—whether they have been implemented, are still awaiting a response or are in the process of implementation—will be set out in the next edition of the Government’s implementation report, which is currently being drafted and is expected to be published shortly. Until it is published, I hope my right hon. and learned Friend will accept that I cannot pre-empt the status of any particular project, but I know he will take a close interest in it when it is published.

Impressive though the overall implementation rate is, there is always room for improvement. One obvious and immediate opportunity might come out of the increased engagement that the Government will have in the formation of the Commission’s next, and 14th, programme of law reform. As my right hon. and learned Friend will be aware—he certainly should be aware—that is the result of the new funding and operating arrangements he introduced in 2020 as Lord Chancellor and Secretary of State for Justice. They create a new model to give the Commission better financial stability during the year so it can better prioritise resources on established projects, while seeking new work. To facilitate that, the Commission now receives 100% of its funding directly from the Ministry of Justice. My right hon. and learned Friend has ensured that the Commission’s foundations in respect of its resourcing are sound and provide a solid base from which it can move forward.

The majority of the work that the Commission undertakes is in programmes of work submitted for approval to the Secretary of State for Justice, as its sponsoring Minister, every four to five years. The Commission recently announced that it had decided to extend the timetable for finalising the content of the programme in view of the Government’s focus on priorities for the remainder of this Parliament. Given the time remaining, it simply does not consider that now is the right time to establish a new long-term programme of work that would cover the next five years and beyond.

However, thanks to the new arrangements that my right hon. and learned Friend put in place, the work on it current and 13th programme, launched in 2017, can continue at pace, including on projects such as smart contracts, electronic signatures, automated vehicles, intermediated securities and modernising trust law. Others focused on the way in which the law works for the individual or businesses, such as on surrogacy, residential leasehold, unfair terms in residential leasehold, disposing of the dead, simplifying the immigration rules, employment law hearing structures, administrative review, museum collections and liability for chancel repair. I think that gives a sense of the breadth of the work undertaken by the Commission.

I am happy to report that the new model has already proven extremely successful since it was introduced, suggesting a fair degree of foresight on the part of my right hon. and learned Friend, allowing the Commission the flexibility to undertake more ad hoc work for Government, as well as the capacity to continue to work on any projects from its current 13th programme that are either yet to be started or completed. It is currently working at full capacity and is likely to remain so for some time. Given that the new funding model will rely on increased and proactive engagement between the Department and the Commission during its planning and development, more thought can be given to the prospect of implementation during the process.

The Commission has already consulted publicly on ideas for the projects that the 14th programme might contain, in addition to its own ideas on themes such as emerging technologies, the law following our exit from the EU, the environment, legal resilience and other ideas for simplification or codification of the law. It has continued to refine and develop those and all other ideas received since then. That in itself should present a much clearer picture to the Government of the likelihood of eventual implementation when they ask the Commission to take forward a piece of work in the new programme.

Let me end by reassuring my right hon. and learned Friend—my friend, indeed— that implementation will be a closely considered part of the approval process for the next programme of work, and that the Government still fully intend to agree a new programme with the Commission in due course, allowing it to build on its work to date and the strong foundations put in place by my right hon. and learned Friend.

Question put and agreed to.

House adjourned.