IT OCCUPIES an unobtrusive building near Gray’s Inn, close to London’s legal square mile. Few people outside the law know it exists — or what it does. But the Law Commission, the Government’s law reform agency, is a powerful quango that makes waves when it wants to — and sometimes when it doesn’t.
At the moment, things are relatively quiet. But the commission has had its share of shouting headlines. “Like a chicken which has passed its sell-by date — not just dubious but downright dangerous,” the Daily Mail once described it. It has faced calls for abolition, been told it should be “consigned to the graveyard of the Wilson era” and been accused of housing subversives bent on undermining family values.
Sir Roger Toulson, 57, is the High Court judge who chairs it. It is a three-year post and he is halfway through his stint. “We were set up nearly 40 years ago. It was the brainchild of Lord Gardiner, the Lord Chancellor under Harold Wilson, at a time when the law was fixed in a pretty conservative mould. When areas of the law were thought to need reform, there were occasional one-off committees. But there was no attempt to keep the law under review. He had the inspirational idea of a standing law commission or commissions (there is also one for Scotland) to examine the law and produce reports recommending ways to simplify, modernise and reform it.” Today that remains its aim, he says — and it is a model that has been successfully copied throughout the Commonwealth jurisdictions.
Sir Roger heads a tiny staff. There are four other commissioners who are lawyers — either practising or academic: Professor Hugh Beale, QC; Stuart Bridge; Professor Martin Partington and Judge Alan Wilkie, QC. Each leads a small team of eight to ten in the areas of common law and commercial; criminal; housing and administrative justice; property and trust law and statute law and each team has a programme of work. Much of it seems legalistic and dry, such as trustee exemption clauses or registration of security interests. But all of it, Sir Roger argues, has wide impact. “We identify areas that need reform and tend to look at branches rather than one-off issues. Then we research it and come up with provisional proposals and usually a discussion paper.”
The whole process is exacting and thorough — and inevitably lengthy. It can take years before proposals are enacted. But such depth of research and width of public consultation, in today’s political climate, is a rare jewel. The process is the opposite of current government thinking — policy first, consultation afterwards. “It was Lord Scarman, the commission’s first chairman, who is credited with the innovation of the Green and White Papers,” Sir Roger says. “He said that from an early stage, before recommendations, we should provide a consultation paper and government consultation papers are modelled on that.”
The papers give the public a direct role in shaping the outcome of reform. The commission tries, too, to tap into the public mood and concern as to what is wrong with the law — something it wants to do more. On the recent poll by the BBC Today programme on what laws people would like to see changed, he says: “They had 11,000 responses and we asked if we could see them. A team worked through about 5,000. Most people were griping about single issues. But one area that did come up that we’re potentially interested in is public health — if we have another Sars or bird flu outbreak, what public health laws are needed and appropriate to tackle that sort of problem?”
As history has shown, the commission has a delicate role. At arm’s length from government, it nonetheless has a close relationship — arguably one that is closer than before the mid-Nineties when it became the target of tabloids over the Conservative Government’s divorce reforms. The ill-fated Family Law Act was based largely on the commission’s work, led at that time by Brenda Hale, now a law lord. At the same time, its proposals on domestic violence — wrongly depicted as giving cohabitees the same rights as wives — also came under fire.
Ministers now take a closer interest: the commission puts forward its plans to a ministerial committee and ministers, in turn, ask for specific laws to be looked at. “In the early days, the commission’s three-yearly programme of work was nodded through. We still produce a programme for government approval but it tends to take a closer interest than it did before,” he says.
“I’ve not personally had experience of the committee turning down our proposals but we’d be slow to propose a project in which the relevant government department had no interest or that ran contrary to government policy, because there’s always more than enough law reform we can do than resources available (its annual budget is £6.2 million).”
The Government, for instance, asked for the current review of the law on defences to murder. “We would like to look at the mandatory life sentence as part of that review — but it will be up to the Government as to whether it wants to widen the terms of reference.”
A perennial complaint of successive chairmen is that after all the work, its reports, with draft Bills, lie gathering dust. The rate of implementation has improved, Sir Roger says, and now stands at 65 per cent of all its reports. “The Government is producing a protocol to remind departments of the need to implement our Bills.”
He admits that sometimes the proposals may be out of step. “The government of the day may think them not right or ahead of their time. But we have to be concerned with the end-term development of the law. It’s a long game. We recognise the political priorities of any government are likely to be rather different — and on a shorter timescale.”
CASE STUDY
HELEN LAW is one of fifteen graduates working as research assistants with the Law Commission (Frances Gibb writes). They spend one or two years on research projects before the next stage in their careers. “I read law at Bristol and then studied public international law at the University of Leiden in the Netherlands. I wanted a gap year before training for the Bar — and my family saw this ad in the Times Law supplement.”
Helen, 24, applied to be attached to the criminal law team where she has been working on “defences to murder”, sifting responses, meeting with legal groups and others. The assistants are allocated to one particular lawyer: hers is also dealing with the codification of the criminal law so she has also worked on the age of criminal responsibility.
“It’s a marvellous opportunity and I can’t recommend it highly enough,” she says. “It gives a different perspective from academic law — this is workable law that the Government needs.”
The commission’s work stretches to every corner of the law, ranging from bind overs to distress for rent, fraud to rape within marriage. One change is the “sheer volume of law” — in the criminal sphere alone, are new laws coming through every few months rather than every few years. The European dimension is now a big factor, as is human rights.
The reforms affect people’s daily lives. Sir Roger Toulson cites the Mental Incapacity Bill, which gives rights and protections to vulnerable adults and their carers.
Other reforms such as the Land Registration Act have modernised the process of land sales; projects on the law of rented housing and unfair terms — all, Toulson says, have an impact on a huge number of people.
