Waiting for those five magic words...
13 May 1997
7 June 2013
12 February 2014
13 September 2013
12 September 2013
17 July 2013
Now the election is over, we can all focus on what legislation we would like to see introduced in the next Parliament.
This is the stage at which a new long-term policy can be put in place. The Law Commission is particularly keen that time should be allowed for law reform since most of its law reform recommendations involve new legislation. Law reform is a necessary part of good government in an advanced democracy such as our own. Laws continually need to be modernised and adapted to new circumstances.
To find out what the new Government intends we will have to wait to hear the Queen's Speech when Parliament reassembles. In previous years, the speech has included the magic words "other measures of law reform".
This phrase is important because it signals the intention of a government to bring forward measures to implement law reform, including Law Commission recommendations, even if those measures have not been expressly mentioned in the Queen's Speech. In the past, Law Commission bills have received broad cross-party support and we hope that that will continue in the next session.
Law Commission bills can also be introduced by private members of Parliament or peers. This enables such bills to go through Parliament without encroaching on the time the Government needs for its own bills.
One of the advantages of the practice of having draft bills attached to Law Commission reports is that they are ready to be introduced. We hope that private members will take this course in the new Parliament.
There are a number of Law Commission bills ready for implementation by Parliament. When we published our Annual Report for 1996 in March of this year, we included a list of 19 Law Commission reports which have been published since 1981 but not implemented. This list excluded any that the Government of the day had already rejected.
In that list there were five reports which have been accepted but for which Parliamentary time had not been found. A substantial backlog of unimplemented Law Commission reports has built up due to lack of time. This has happened even though large numbers of Law Commission reports have been implemented in the past two years in particular.
The backlog includes a number of important measures designed to improve the law. For example, in 1996, the commission recommended that Parliament should create a new offence of corporate man-slaughter (Law Com 237 Involuntary Manslaughter). At present prosecutions can rarely be brought against larger companies because it cannot be shown that those responsible are sufficiently senior to be identified with the company.
Also in 1996, the commission published an important report recommending changes to the doctrine of privity of contract (Law Com 242 Privity of Contract: Contracts for the benefit of Third Parties).
These recommendations would enable third parties to enforce contracts for their benefit in certain circumstances, thus modernising this aspect of contract law and making it accord with the lay person's expectations.
Proposals of these kinds do not have the same wide interest as some other legislation which a government promotes, but they nonetheless achieve useful changes in the law. We must have an ongoing programme for implementing law reform otherwise the backlog of unimplemented Law Commission reports will grow.
What are the prospects for implementation? The House of Lords has in recent years developed a process, called the Jellicoe procedure, that is well suited to the consideration of law reform measures. Detailed consideration of a bill takes place in committee and not on the floor of the House. Moreover, the committee can receive evidence from experts. This procedure therefore facilitates the whole process by scrutinising the proposed measures.
We hope that the new Government will take the decision to ensure that law reform measures are considered by Parliament on a regular basis. In that way the notorious backlog of Law Commission bills awaiting implementation may finally be conquered.