Fifty Years of the Law Commissions

The Dynamics of Law Reform

Matthew Dyson, James Lee, Shona Wilson Stark, Matthew Dyson, James Lee, Shona Wilson Stark

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781849468596
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book brings together past and present law commissioners, judges, practitioners, academics and law reformers to analyse the past, present and future of the Law Commissions in the United Kingdom and beyond. Its internationally recognised authors bring a wealth of experience and insight into how and why law reform does and should take place, covering statutory and non-statutory reform from national and international perspectives. The chapters of the book developed from papers given at a conference to mark the fiftieth anniversary of the Law Commissions Act 1965.

Part 1

Introduction

1

Introduction

MATTHEW DYSON, JAMES LEE AND SHONA WILSON STARK

This collection arises from a conference held at the United Kingdom Supreme Court in July 2015 which marked the fiftieth anniversary of the Law Commissions Act 1965. The book celebrates fifty years of institutional law reform in the United Kingdom, embracing the Law Commission of England and Wales and the Scottish Law Commission, as well as the Northern Ireland Law Commission. Law reform bodies are not a new concept in England. Attempts were made to tidy the statute book as far back as 1593,¹ and Sir Matthew Hale’s seventeenth century commission has been described as the ‘first law commission’.² Law reform bodies have at least as long a history in Scotland. As long ago as 1425, an Act sought to appoint a commission to ‘examyn the bukis of law of this realme … and mend the lawis that nedis mendment’.³ In the event, this early commission was ‘fruitless’, and over the years many other similarly unsuccessful attempts were made.⁴ The Law Commissions of 1965 appear to have been planted in more fertile soil.

The book is divided into eight parts reflecting the panels at the conference combined with the introductory and concluding keynote addresses. Each panel was chaired by a distinguished law reformer who has also written a brief introduction to that panel for this volume. The panels were selected to frame key aspects of the Commissions’ role in law reform:

1.Introduction

2.The First Half-Century of the Commissions

Reflecting on the origins and development of the Commissions

3.Institutions, Commissions, Committees, Codifiers

Analysing the legal actors and configurations of reformers and their work

4.The Many Faces of Law Reform

Surveying and critiquing the non-legislative means of law reform

5.Implementation by Statute

Examining the role of statute in calculating the success of reform

6.How Law Commissions Work

Exploring the ways the Commissions do, could and should function

7.Courts and Commissions

Studying the relationship between the Commissions’ work and the courts

8.Commissioning the Future

Looking forward to the challenges and reforms of the future

This Introduction will pick out some of the themes that have emerged across the parts of the book. For the sake of convenience, when we refer here to ‘the Commissions’, we mean both the Law Commission of England and Wales (Law Commission) and the Scottish Law Commission.

The collection brings together judicial and academic perspectives with commentary from past and current Commissioners on the issues relating to law reform. Thus we have essays from those who have served as Chairs of the Law Commission (Etherton, Carnwath, Toulson, Arden, Munby, Lloyd Jones) and the Scottish Law Commission (Drummond Young and Pentland). In addition, there are essays by former and serving individual Commissioners from England and Wales (Hale, Burrows, Paines, Beale, Beatson, Lewis, Harpum, Ormerod, Cooke) and from Scotland (Hodge, Clive, Gretton, Dunlop, MacQueen, Johnston). The Chief Executives at the time of the conference (Lorimer and McMillan) offer comments on the operation of the Commissions today. There are external perspectives, from academics and parliamentarians independent of the Commissions (Mitchell, Beith, Dennis, Stark, Lee and Dyson) and from law reformers from other legal systems drawing comparisons on a wider scale: Northern Ireland (Faris), Australia (Cronin and McDonald), Canada (Le Bouthillier), Ireland (Binchy) and New Zealand (Hammond and Keith).⁵

IWHOSE ROLE IS LAW REFORM?

Lord Reid once opined that ‘[p]eople want two inconsistent things; that the law shall be certain, and that it shall be just and shall move with the times’.⁶ The need for a legal system to be both predictable and certain as well as to develop and adapt to societal changes is one of the fundamental tensions the Commissions were created to ease. The creation of statutory bodies to review law and recommend reform clearly raised questions of their relationships with other reforming bodies and which matters the Commissions are best suited to examine and on which to propose reform. Here we briefly consider the Commissions’ relationship with four bodies: government, Parliament, the courts and the wider reform community.

Government. The Commissions are advisory bodies and the primary addressee of their advice is the government. The government is vital in approving programmes of reform and indicating willingness to reform in the areas examined in specific projects, as well as playing a role in the Commissions’ long-term funding. The relationship between the Law Commission of England and Wales and government has seen significant changes recently, with the Law Commission Act 2009 and the protocol made under it, as discussed in, for instance, Sir Terence Etherton’s chapter, and our section II below. Recent changes made by the Wales Act 2014 have increased the Welsh Government’s stake in Commission-driven law reform, as discussed in Sir David Lloyd Jones’ chapter.

While the legal framework may be different, the Scottish Law Commission too has been nurturing its relationship with the Scottish Government, as the chapters by Hector MacQueen and Malcolm McMillan demonstrate. In fact, these relationships have changed and developed over time, however much it is easy to imagine the events of today are particularly important or novel. The relationships depend strongly on the actors involved at the relevant time. The cycle of re-negotiating the formal and institutional connections can also function as a strengthening of the underlying personal relationships and their legacies. The Commissions’ relationships with government require a careful balancing of the need to maintain implementation rates with the need for independence in project selection and reform proposals. That balance is explored in various essays in this volume, particularly those by Sir Terence Etherton and Sir Jack Beatson.

Legislators. Even if the government is the first addressee of the Commissions’ work, the Westminster and Scottish Parliaments and the Welsh Assembly are key to the success of the Commissions’ goals. The governmental duty to lay Commission reports before the legislatures is crucial in disseminating the Commissions’ work to a wider audience. This volume contains numerous examples of the importance of parliamentary support and supporters. Just like government, this relationship requires care and respect, as well as periodic renewal. As Sir Terence Etherton notes, reform of the governmental mechanisms for law reform naturally dovetail with giving Parliament greater oversight of the work of the Commission in England. The relationship with Parliament is also a two-way street, independent lanes but ideas moving in both directions. On the one hand, the Law Commission’s Bills must go through Parliament, surviving whatever changes are made or attempted during that passage. The Law Commission also needs more general political support for its mission. Going even further, Kathryn Cronin in her chapter stresses the need for reformers to attend to delegated legislation, especially in a federal system. On the other hand, parliamentarians recognise the expertise of both Commissions and the quality of their work. Lord Beith provides good examples of the problems and possibilities of parliamentary engagement. As chairman of the House of Commons Justice Committee, he himself had called for the Law Commission to examine or re-examine areas of law.⁷ Competition for parliamentary time and attention has led to procedures where uncontentious Commission Bills can more easily find a place in the parliamentary timetable. This procedure is used carefully, for fear of one even mildly contentious Bill being met with a backlash and the closing of the route altogether. Further innovation for more than completely uncontroversial Bills could well be important for the future. The possibilities are fascinating: Sir Grant Hammond considers some alternatives in parliamentary practice, and Matthew Dyson considers comparisons in law making both internationally, and between Commission proposals and the quality of non-Commission proposals. Similarly, the story does not end with legislation: as Andrew Burrows notes, post-legislative scrutiny is an important part of gauging the success of a law reform enterprise, and it is one that the legislator could meaningfully be involved in.

Courts. The Commissions and the courts are engaged in, as Lord Drummond Young puts it in his paper, a ‘continuing dialogue’. Several chapters throughout the volume consider when it is appropriate for the courts to develop the law and when reform should be enacted by legislation, what Andrew Burrows calls the ‘elusive boundary’.⁸ Lady Hale and Sir Kenneth Keith each argue for flexible approaches, depending upon the context. As James Lee points out, there are many reasons why Commission material might be used, let alone why it might be decisive. For his part, Burrows’ view is that the Commissions should focus their energies on areas which the higher courts cannot realistically be expected to reform. For the future, English higher courts will hopefully continue to receive the cases that allow difficult areas to come to light and then be resolved, but that is not certain. Movements away from expensive litigation, whether towards arbitration or mediation, or other forms of resolution, may deprive courts of the material. The lack of material is a problem known well to the Scottish legal system. As Hector MacQueen notes, Scotland lacks the ‘steady stream and quality of case law’ which might give judges the opportunity to develop the law and this, he argues, contributes to the distinctive role of the Scottish Law Commission. Lord Pentland also sees the Commission’s role as particularly important in contrast with the constraints and political priorities affecting government departments.

Occasionally, a Commission may appeal directly to the courts to develop the law. In certain cases, the courts do pick up Law Commission recommendations and run with them, as happened in respect of damages for personal injury, as Lords Toulson and Carnwath note. In Lee’s essay, the recent history of the illegality defence in private law is given as an unfortunate example of the Law Commission deferring to the courts but the judges...