THE law commission. 'Faceless lawyers' who caused a storm
13 February 1996
6 January 2014
7 August 2013
18 July 2014
27 January 2014
28 October 2013
The Law Commission is never likely to underestimate the power of the popular press again.
Twice now it has seen its work lambasted in the huffing columns of the Daily Mail. First on its Domestic Violence Bill and now over its Bill on mental incapacity.
It is uncomfortable enough for any organisation to find itself taken to pieces and branded a social evil but the impact on this particular body, unused to adverse publicity, is hard to gauge.
The Law Commission does not set out to court controversy. It does not organise press conferences for many of its reports because, as one insider says, "people wouldn't be interested". You could never accuse it of being publicity hungry or fighting for air time.
It is staffed by civil servants who virtually never speak on the record, and its commissioners are relatively low profile, although usually available for comment. The commission building is quiet and uninspiring. If you ever needed to know that tax payers' money was not being frittered away on extravagant comforts, then you need only visit its headquarters in London's Holborn.
It is above all fiercely proud of its independence, its unflagging attention to the small print of English statute and its necessarily unglamorous remit.
Set up in 1965 by an Act of Parliament by the then Lord Chancellor Lord Gardiner, its aim is to keep English law under constant review (a Scottish Commission does the same job north of the border). It does this by producing detailed studies (in ready-made Bill form) of areas which need reform, removing obsolete laws and by "consolidating" or updating unwieldy pieces of statute.
For England and Wales, five commissioners and 65 civil servants, including government lawyers, parliamentary counsel (who draft the Bills) and research assistants, are responsible for keeping an eye on the current state of legislation and informing the Lord Chancellor of areas which need change.
It produces regular reports - 120 have appeared - and they can either be implemented straight away, rejected, reworked, or hang around for a while for implementation. To date 82 have been implemented, 11 have been accepted by the Government (three of them introduced in this parliamentary session and eight awaiting parliamentary time) and 14 are awaiting the Government's decision. The remaining few have been rejected.
So why did all this get the Mail so upset? Primarily because the commission looked at the two subjects which are intrinsic to our lives and which could never be tackled without response from the public and the voice of the public - sex and death.
Five years ago it set out to look at the sensitive subject of mental incapacity and the legal minefield surrounding decisions on matters of life and death. About the same time it also considered the law in relation to marriage and the country's changing domestic complexion.
In an age of confused moral imperatives and an apparent longing for so-called Victorian order, the backlash was easy to predict.
"Legal Commissars subverting Family Values" said an outraged Mail article last November on the commission's Family Homes and Domestic Violence Bill - dubbed the "live-in lovers' Bill". Claiming to "focus on the faceless lawyers behind these disturbing measures", it focused instead on a former commissioner, Mrs Justice Hale, and the commission's so-called "hidden agenda" of feminism.
Beside her picture ran the caption: "This woman believes marriage may be dead. Why then, in God's name, has she been allowed to shape laws that affect the lives of the majority of Britons who DO believe in matrimony?"
Working God into this outcry was significant and a clue to the reception the commission's mental incapacity Bill was to attract. Religious groups were on the case as soon as this Bill went to consultation. It was consulted over all of four times.
This time, the Mail wrote about a "mercy killing storm", whipping up anxiety over the contents of the report. The commission has always maintained that the report does not deal with euthanasia. The newspaper thought differently and so, in the end, did the Lord Chancellor and the Government, which dumped it.
The Mail described the commission as "set up in the sixties by Labour", thus, with those simple words, bringing out into the open the two horrors that were bound to terrify its readership. But is there anything really so sinister about these "commissars" and what is the philosophy behind their remit?
Origins and role
The origin of the commission was outlined in a book published in the early 1960s and written by Gerald Gardiner and Andrew Martin.
Gardiner went on to become the Lord Chancellor and Martin a commissioner. The commission's first chairman was Lord Scarman, described as "tailor-made" for the job.
In the past, governments needed either to set up special committees for individual reforms or it was done by government departments. A commission could bring the work under one roof and do it more efficiently and quickly.
The commission was designed to answer to the Lord Chancellor's Department. The staff is currently headed by the commission's secretary, Michael Sayers.
The five commissioners, appointed for a fixed term which can be extended, must be a combination of solicitors, barristers and legal academics. Their areas of responsibility range from company and commercial to criminal and they work as a team, all of the commissioners signing each report.
The commissioners earn £69,500 and the chair, who is always a member of the High Court judiciary, is paid a High Court judge's salary (about £103,000).
According to Sayers, the type of people who become commissioners are those ardently interested in law reform, who are good at writing, and are "clever" and good team players. He said: "Our job is not fly by night. We don't do things in six months. We take a measured look. We have to produce a very large number of reports, and a large number of them have been implemented."
How it works
At any time the commission will be busy with 20 to 30 reform projects. Reform may be its main occupation but not the sole one. Staff are also responsible for consolidating law or "putting together in one Act of Parliament, or in a group of Acts, all the existing statutory provisions previously located in several different Acts, all of which can then be repealed" (from The Law Commission - Working for Better Law).
Its third role is to scan the books for obsolete or unnecessary statutes. All those elements of statute which are of no use are repealed together. These have included statutes preventing a creditor charging a debtor more than 15 pence if he took steps to levy distress for a debt less than £20 or to penalise masters of vessels on the Thames for firing guns at night.
On the reform front, the subject matter can come from different quarters. Sayer says some cases stem from a prestigious inquiry, such as when the commissioners looked into criminal evidence for the Royal Commission on Criminal Justice, but it is often initiated by the commission itself.
The body has on-going programmes of reform, the next one due to be finished by 1998.
In brief, the research work can last from months to years and then the report is put out to consultation. This takes some time and there can be several stages. Finally, the report is nothing without implementation.
The worst scenario is backlog. As Bills, the reports need to be passed in Parliament. Sayer explains the implementation situation is much better now than it was between 1991 and 1994, when take-up was very poor.
"This year is the only year that implementation is higher than the report rate," he said.
The backlog caused some concern for the previous chair, Mr Justice Brooke, who spoke out about the Government's tardiness. The situation was eased in 1994 by the introduction of a parliamentary fast-tracking method known as the Jellicoe procedure. The first report to pass through the new procedure was the Law of Property (Miscellaneous Provisions) Act.
Politics and the non-political organisation
The commission is non-partisan and non-political. It slavishly adheres to regulations and if the Government decides to drop one of its reports there is little it can do.
But commissioners put years into their research and their consultations are thorough. To drop a report is to ignore all that work and expense and, therefore, they are rarely abandoned.
But it did happen last month when the Lord Chancellor decided not to implement the report on mental incapacity. The move left many disappointed, not least the commission itself.
The commissioners are already working on other projects but others ask whether politics could intrude into their work again. Diane Burleigh, the Law Society's head of court business, is one of those who felt the commission's "excellent" report was dropped because it was a "hot potato the Government could do without".
A fan of the commission, she says of the decision: "When one's done a piece of professional work it's a bit galling for it not to be appreciated. On the other hand, they have a big agenda and go on from one thing to another."
The commissioners are recruited through advertising, are appointed by the Lord Chancellor and stay in their jobs for five years.
Mrs Justice Arden: took over as chair from Mr Justice Brooke in January. The first woman judge in the High Court's Chancery Division with a very strong reputation in company law.
She follows in the footsteps of the committed and outspoken former chair, who, in his last year, called for more support from the Government to stop the commission's criminal Bills getting "edged out".
Professor Andrew Burrows: law professor at University College, London University, responsible for common law.
Diana Faber: Richards Butler solicitor, responsible for company and commercial law.
Charles Harpum: legal academic from Cambridge University, responsible for property and trust.
Stephen Silber QC: barrister and Crown Court Recorder, responsible for criminal law.