The great reformers: still quietly beavering away

Thirty years after its foundation, the Law Commission has come under fierce attack. Yet the argument for an independent law body is as strong as ever, says Roger Trapp
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The Independent Online
The current furore over a bunch of lawyers who recommend changes to the laws of the land might look extraordinary. But the Law Commission is responding in a low-key, seen-it-all-before fashion. Michael Sayers, the organisation's secretary, says: "There is always somebody who says the organisation should be abolished."

In taking this approach, it is probably buoyed by the fact that it enjoys cross-party support in Parliament. Lady Olga Maitland, the Tory MP who last month helped to force changes to the Family Homes and Domestic Violence Bill, might think that the Law Commission is "living on another planet". But the latest annual report states that the commission has been "very heartened" by the support it has received from leading lawyers in all three main parties in both Houses. In addition to the Lord Chancellor, a former member of the Scottish Law Commission, and his parliamentary secretary, John Taylor, it cites Lords Alexander and Rippon and Sir Ivan Lawrence for the Conservatives, Lord Irvine and Paul Boateng for Labour and Lord Lester and Alex Carlile for the Liberal Democrats.

The problem with this, of course, is that it implies that the commission is less enthusiastically received by non-lawyers.The report acknowledges this by admitting the need to "bring to life to non-lawyers the work we are doing in terms of its contemporary relevance to the life of the nation".

Mr Sayers says the commission has been "beavering away" for 30 years independent of the government (except for funding). Indeed, so quietly does it go about its work that some might be surprised it has not joined the National Economic Development Council and other organisations with origins in the Wilsonite Sixties that have been done away with since the Conservatives came to power.

Set up by Parliament in 1965, the commission got off to a good start with the help of Lord Gardiner, Harold Wilson's first Lord Chancellor, and Mr Justice (later Lord) Scarman as the inaugural chairman. Its job is to keep the law of England and Wales under review and recommend reform. The Lord Chancellor, whose department funds it, has to approve any recommendations before they are put to Parliament.

The five commissioners work full time, a conscious decision because predecessor committees always had difficulty in getting their eminent members to meetings. Besides the chairman who is always a High Court judge, members are made up of prominent barristers, solicitors and legal academics. The panel is currently headed by Mr Justice Brooke and includes Professor Andrew Burrows of University College London, Charles Harpum of Cambridge University, Stephen Silber QC and Diana Faber, a solicitor. The members retire in rotation after five years, but can serve additional terms.

The commission operates a two-tier system to look at legislation: it starts with a consultation document, known as a green paper because of its colour, and then produces a report out of responses. It produces about 10 publications a year, of which half are reports. Occasionally, as is happening with joint and several liability (a common law principle that enables aggrieved investors to obtain their total losses from belligerent advisers regardless of the degree of fault), it produces a feasibility study for internal use.

Recent days have seen accusations that the commission has a hidden, broadly liberal agenda. But Mr Justice Brooke has rejected this, and Mr Sayers says the work rate of the commissioners has not differed according to the party of government. In fact, it has increased in recent years.

What has given cause for concern, though, is a low implementation rate for several years until the early Nineties. Somewhat mischievously, Mr Sayers says he does not know whether there is a connection with the change in prime minister.

Whatever the cause, the commission was - according to Joshua Rozenberg's book on the legal system, The Search for Justice - "justifiably annoyed" that none of its bills was included in the Government's legislative programme in 1991 or 1992. Two reports were implemented in 1992, but they were Private Members' Bills, sponsored by individual peers. All this prompted the commission to tell the Lord Chancellor in 1993 that there was "a very serious backlog" of reports awaiting parliamentary consideration. Given that lawyers are not generally given to false alarms, this could be seen as a crisis as serious as the one in which the commission is now embroiled.

That problem seems to have been solved (at least to the extent that the commission is able to include in its latest annual report a cartoon from the time depicting a hapless commuter bearing a briefcase full of Law Commission reforms standing at the foot of an out-of-action escalator at Westminster Underground station). But some observers suggest that that solution might have sown the seeds for the current problem in that Parliament is considering a rush of reforms.

The improvement in the situation is largely attributed to changes in the procedure by which Law Commission law reform Bills become Acts. The House of Lords has modified the arrangements by which Jellicoe committees receive evidence, while the House of Commons has decided that Bills based on commission reports should be referred to a second reading off the floor of the House unless the House orders otherwise.

There seems to be widespread support in both Houses of Parliament, among lawyers and non-lawyers, for a fast-track procedure, provided the bills are politically non-contentious. This, of course, leads to the current difficulties. Mr Justice Brooke, the brother of Peter Brooke, the former Tory Cabinet minister whose three-year term as chairman of the commission ends at the end of the year, is understood to welcome public debate since that makes the organisation's work appear valued. But he criticised the Daily Mail, which stepped up the campaign over the divorce reform Bill by personally attacking former law commissioner Mrs Justice Hale. It was "deplorable" to personalise an attack on the proposals that had been formed by a five-person commission after a lengthy consultation period, he said.

Ironically, this comes not long after the organisation's annual report noted changes in the press's treatment of its work, in particular, "the keen interest in our theme that it was high time that more was done to make the law simpler, fairer and cheaper to use".

Such is the commission's dedication to this task, that it is unlikely to be swayed by recent events. After all, as Mr Sayers points out, reform is only one area of activity for the body set up by Parliament in 1965.

The other two are statute law revision and consolidation. They are not, Mr Sayers admits, "headline grabbing", but he insists they are still important. The first involves removing obsolete legislation from the statute book and the second is consolidation or bringing together acts without changing the law. In these areas, the body has a 100 per cent implementation record.

"I think there's a great need for a body that's independent of the government, and that can look at the thing in a measured way without the distractions of being in a government department," says Mr Sayers.

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