The Work of the British Law Commissions, 2017

The Work of the British Law Commissions, 2017 Bringing together significant information about the nature and development of the Law Commissions, including insightful anecdotage from previous Chairs and members, this book cannot avoid being a useful contribution to the literature on law reform. A number of very minor points occur in the course of reading this excellent and well-written book. It might have been helpful to have more discussion of the nature of the Commissions’ independence and the extent to which their operational and strategic independence is under pressure. The fundamental paradox is noted early on in the book in the following sentence: ‘the Commissions are technically independent from government, yet they rely on government for their funding and for approval of their proposed projects’. Clearly, this acts as a significant constraint on the practical independence of the Commissioners and it would have been helpful to have more discussion about this, apart from occasional references throughout the book. In particular, it would have been interesting to have some direct comparison with those jurisdictions around the world where the Law Commission is effectively a branch of government and those in which its independence is constitutionally guaranteed. In describing the Commissions’ terms of reference surprise is expressed as to how broad their remit is: but it is difficult to see how in practice it could have been drawn any more narrowly, and the text does not discuss what limitations or constraints might sensibly have been imposed, or might be imposed in future in order to enhance the efficiency or effectiveness of the Commissions. In discussing the considerations relevant to the availability and economic use of resources of the Commissions, there is a glancing reference to the potential for project-specific funding: but this issue is insufficiently developed in the rest of the book. The concept of sponsorship of Law Commission projects raises both significant opportunities and significant challenges, and it would have been helpful to have these discussed in some detail, together with notes on the experience and opinions of former Commissioners. The passage on the difficulty of determining in advance whether or not a project will be controversial should probably have included a full analysis of the history of the Family Homes and Domestic Violence Bill 1994–95. That Bill is a significant cautionary tale for Law Commissions in the United Kingdom and abroad: it started to attract criticism only having completed its passage in the House of Lords and having made initial progress in the House of Commons. It was timetabled on the basis that it was uncontentious but it became clear that, to put it bluntly, as soon as the press had noticed and understood it, it raised some very serious social issues that were clearly not appropriate for a Law Commission measure. Some suspect that the potential for controversy should have been noted at a very much earlier stage in that project and that the result could have been serious reputational damage for the Law Commission had the issues been exposed even later than they eventually were. Some analysis of how that particular story unfolded and how recurrence could be avoided would have been particularly helpful. In discussing the issues raised by pressure on Parliamentary time in the chapter on reasons for non-implementation, more analysis of the impact of the expedited procedures for implementation of Law Commission Bills in the two Houses would have been helpful. There is cursory discussion of the impact on the Law Commissions of the changing role of the Lord Chancellor, but again it would have been interesting to have more reflections on that, particularly from Lord Chancellors before and after the change, and from Commissioners who remember a close and effective working relationship with early Lord Chancellors. The brief reference to the origin of the Law Commission Act 2009 and its description as ‘a private peer’s Bill’ should have made due acknowledgement of the fact that it was, in effect, a handout, and should have documented properly the Government’s involvement. In the chapter on the extent of implementation, the reference to the use that judges make of the reports of the Law Commission fails to measure the extent, if any, to which this exceeds the modern use of background and explanatory material generally. One suspects that the authority of Law Commission reports as evidence of the legislative intent of an implementation Bill is no greater than the authority nowadays accorded to, for example, departmental consultation papers preceding government Bills. The statement that legislative reform orders ‘can only make amendments to existing legislation, not the common law’ is an oversimplification. In the discussion of the issues around codification, more could have been said, in particular, about the most important reason why codification has not been attempted more than it has, lack of resources. The potential overlap between codification and consolidation also deserves more detailed analysis. All these are mere quibbles in the context of a book that brings together some significant and helpful discussion of the role of the Law Commissions and will be a helpful research tool in that context. © The Author(s) 2016, 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

The Work of the British Law Commissions, 2017

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Publisher
Oxford University Press
Copyright
© The Author(s) 2016, 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0144-3593
eISSN
1464-3863
D.O.I.
10.1093/slr/hmx021
Publisher site
See Article on Publisher Site

Abstract

Bringing together significant information about the nature and development of the Law Commissions, including insightful anecdotage from previous Chairs and members, this book cannot avoid being a useful contribution to the literature on law reform. A number of very minor points occur in the course of reading this excellent and well-written book. It might have been helpful to have more discussion of the nature of the Commissions’ independence and the extent to which their operational and strategic independence is under pressure. The fundamental paradox is noted early on in the book in the following sentence: ‘the Commissions are technically independent from government, yet they rely on government for their funding and for approval of their proposed projects’. Clearly, this acts as a significant constraint on the practical independence of the Commissioners and it would have been helpful to have more discussion about this, apart from occasional references throughout the book. In particular, it would have been interesting to have some direct comparison with those jurisdictions around the world where the Law Commission is effectively a branch of government and those in which its independence is constitutionally guaranteed. In describing the Commissions’ terms of reference surprise is expressed as to how broad their remit is: but it is difficult to see how in practice it could have been drawn any more narrowly, and the text does not discuss what limitations or constraints might sensibly have been imposed, or might be imposed in future in order to enhance the efficiency or effectiveness of the Commissions. In discussing the considerations relevant to the availability and economic use of resources of the Commissions, there is a glancing reference to the potential for project-specific funding: but this issue is insufficiently developed in the rest of the book. The concept of sponsorship of Law Commission projects raises both significant opportunities and significant challenges, and it would have been helpful to have these discussed in some detail, together with notes on the experience and opinions of former Commissioners. The passage on the difficulty of determining in advance whether or not a project will be controversial should probably have included a full analysis of the history of the Family Homes and Domestic Violence Bill 1994–95. That Bill is a significant cautionary tale for Law Commissions in the United Kingdom and abroad: it started to attract criticism only having completed its passage in the House of Lords and having made initial progress in the House of Commons. It was timetabled on the basis that it was uncontentious but it became clear that, to put it bluntly, as soon as the press had noticed and understood it, it raised some very serious social issues that were clearly not appropriate for a Law Commission measure. Some suspect that the potential for controversy should have been noted at a very much earlier stage in that project and that the result could have been serious reputational damage for the Law Commission had the issues been exposed even later than they eventually were. Some analysis of how that particular story unfolded and how recurrence could be avoided would have been particularly helpful. In discussing the issues raised by pressure on Parliamentary time in the chapter on reasons for non-implementation, more analysis of the impact of the expedited procedures for implementation of Law Commission Bills in the two Houses would have been helpful. There is cursory discussion of the impact on the Law Commissions of the changing role of the Lord Chancellor, but again it would have been interesting to have more reflections on that, particularly from Lord Chancellors before and after the change, and from Commissioners who remember a close and effective working relationship with early Lord Chancellors. The brief reference to the origin of the Law Commission Act 2009 and its description as ‘a private peer’s Bill’ should have made due acknowledgement of the fact that it was, in effect, a handout, and should have documented properly the Government’s involvement. In the chapter on the extent of implementation, the reference to the use that judges make of the reports of the Law Commission fails to measure the extent, if any, to which this exceeds the modern use of background and explanatory material generally. One suspects that the authority of Law Commission reports as evidence of the legislative intent of an implementation Bill is no greater than the authority nowadays accorded to, for example, departmental consultation papers preceding government Bills. The statement that legislative reform orders ‘can only make amendments to existing legislation, not the common law’ is an oversimplification. In the discussion of the issues around codification, more could have been said, in particular, about the most important reason why codification has not been attempted more than it has, lack of resources. The potential overlap between codification and consolidation also deserves more detailed analysis. All these are mere quibbles in the context of a book that brings together some significant and helpful discussion of the role of the Law Commissions and will be a helpful research tool in that context. © The Author(s) 2016, 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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Statute Law ReviewOxford University Press

Published: Feb 1, 2018

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