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Appointment of Law Commissioners

Analysis of the responses to a DCA consultation paper 'Appointment of Law Commissioners' issued June 2004

Response to consultation carried out by the Department for Constitutional Affairs.

Response to Consultation CP(R) 14/04
02/06/2004

Contents

Introduction
Background
Summary of responses
Responses to Specific Questions
Conclusion and Next Steps
Consultation Co-ordinator contact details
The Consultation Criteria
Annex A - List of Respondents

Introduction

This document is the post-consultation report for the Department for Constitutional Affairs' consultation paper, 'Appointment of Law Commissioners', published on 2 June 2004.

It will cover:

the background to the report;
a summary of the responses to the report including a general overview and a summary of the responses to each question;
a detailed response to the specific questions raised in the report; and
the next steps following this consultation.

Further copies of this report and the consultation paper can be obtained by contacting Kirsty Milliam at the address below:

Her Majesty's Courts Service
Civil Law and Justice Division
Property Rights & Law Commission
1^st Floor Southside
105 Victoria Street
London
SW1E 6QT

Telephone: 020 7 210 2066
Email: Kirsty Milliam

Background

The Department for Constitutional Affairs' consultation paper 'Appointment of Law Commissioners' was published on 2 June 2004. It was prepared to seek views on the following recommendations made by John Halliday CB in his report on the Quinquennial Review of the Law Commission.
In recommendation 36 John Halliday proposed that the Lord Chancellor's Department should look for an opportunity to seek an amendment of the 1965 Act to allow for the appointment of additional part-time Commissioners. The purpose of recommendation 36 was to create greater flexibility to enable the Law Commission to take on the right projects at the right time. John Halliday was concerned that the scope of the Commission's programme at any given time was limited by the expertise of the current Commissioners. This theme was developed in paragraphs 2.3, 2.6 and 2.7 of the consultation paper which stated:

"The power to appoint part-time Commissioners would address the concern that a pressing need might arise for a major project that was outside the current Commissioners' area of expertise. It would be possible to appoint a suitable specialist on a part-time basis to lead on that project."

"It would be possible to re-appoint an outgoing Commissioner on a part-time basis so that he or she could see through any uncompleted projects on which they had been leading."

"..It would be possible to consider the appointment as Commissioners of people who, for whatever reason, were unable or unwilling to take on a full-time appointment. In particular it would be possible to access the skills of people with family, professional or other commitments which meant they were only willing or able to work for the Commission on a part-time basis. This may be particularly relevant to parents and others with caring responsibilities, but could also help attract leading solicitors who wished to remain involved in their practice."
The consultation paper suggested that the framework for setting the number of Law Commissioners should be as flexible as possible, and proposed that the Act should be amended to provide for a minimum of five Commissioners, but with an ability to change the minimum number up or down by secondary legislation as and when required (paragraph 2.11).
In recommendation 37 John Halliday proposed that the Lord Chancellor's Department should consider whether ways can be found of opening up the post of Chairman to all suitably qualified candidates without adverse consequences. If that proved impossible, he recommended that the restriction of the post to High Court judges should be formally declared and explained. He added that procedures should then be put in place to enable High Court judges to apply for the post in accordance with the Code of the Commissioner for Public Appointments. He did, however, acknowledge that High Court judges might be unwilling to enter a competition for the post of Chairman and that this might significantly reduce the pool of potential applicants.
The Law Commissions Act 1965 provides that Commissioners (including the Chairman) are to be recruited from judicial office holders, barristers, solicitors or teachers of law in a university. Since 1965 all the Chairmen have been recruited from the High Court bench.
The paper contained 9 questions. Question 1 sought views on the appointment of part-time Law Commissioners. Question 2 sought views on whether the Law Commissions Act 1965 should be amended to allow for flexibility in the number of Law Commissioners appointed. Questions 3 to 6 related to the appointment of the Chairman of the Law Commission and sought views on whether candidates for the post of Chairman should actively be sought from all three categories entitled to apply or whether candidates should be restricted to High Court judges. Questions 7 to 9 sought views on whether the proposals were suitable for implementation by a Regulatory Reform Order.
The consultation paper was aimed particularly at the judiciary, university law schools, professional bodies, Government Departments, bodies representing consumers and others with an interest in law reform in England and Wales. It was also aimed at law reform bodies in the UK and abroad.
A list of respondents other than the one who wished his response to remain confidential is at Annex A.

Summary of responses

Only 30 responses were received to the consultation paper. Of these, 9 responses came from 11 senior judges (1 of the responses was a joint response from Lord Justice Peter Gibson, Lord Justice Brooke, Lady Justice Arden, Lord Justice Carnwath and Mr Justice Silber). Lady Justice Arden also sent in a separate response. 8 of the 11 senior judges were former members of the Law Commission. 1 response came from Baroness Hale of Richmond and Dr Julian Farrand (both former Law Commissioners). 4 responses came from academics (of whom 3 were former Law Commissioners). 4 came from legal professionals (of whom all 4 were former Law Commissioners). 4 came from civil servants (of whom 1 was a former Secretary to the Law Commission and 1 is currently the senior Parliamentary Counsel at the Law Commission). 2 came from foreign law reform bodies. A reply was also received from the Law Commission and a Sheriff Principal from Scotland (who was a former Commissioner of the Scottish Law Commission). In all, 21 of those who responded are or had been members of, or employed by, either the English and Welsh, or the Scottish Law Commissions.
The remaining responses came from a professional body, an academic organisation, a business association, a member of the public and a person who wishes to remain anonymous. We are very grateful for all of the responses that we received.
Responses were analysed for:
- level of support for each proposal; and
- for any possible new approaches to the issues.
It should be noted that not all respondents answered every question.
Responses to question 1, on the usefulness of appointing part-time Commissioners were fairly evenly divided. The view expressed by respondents, whether they agreed or disagreed, was that the collegiality of all the Commissioners engaging in and sharing responsibility for the whole of the work of the Law Commission was a great strength and needed to be safeguarded. There was also a strong view that there should not be a reduction in the number of full-time Commissioners.
Responses to question 2 rejected the proposal to amend the Law Commissions Act 1965 to change, by secondary legislation, the minimum number of Commissioners from five.
The majority of responses to questions 3, 4, 5 and 6, on who should be eligible for the post of Law Commission Chairman were firmly of the opinion that the practice of appointing only High Court judges as Chairmen should continue. These respondents believed that any change to the current policy would have a detrimental effect on the standing of the Law Commission as a body, and on the numbers and calibre of those applying for appointment as Law Commissioner.
Questions 7, 8 and 9, on whether the proposals were suitable for implementation by an order under the Regulatory Reform Act 2001, were highly technical and drew few responses. The majority of those who responded to these questions considered that the proposals could be implemented under the 2001 Act.

Responses to Specific Questions Part-time Law Commissioners

Q.1 Do you agree that the ability to appoint part-time Commissioners would be useful for any or all of the reasons described in paragraphs 2.3, 2.6 and 2.7 (set out in the background to this response paper)?

28 (93%) of the 30 respondents answered question 1. 13 (46%) agreed (4 senior judges, 3 civil servants, 1 legal professional, 1 academic, 1 academic organisation, 1 business association, 1 professional body and the Law Commission). 12 (43%) disagreed (3 senior judges, a joint response from 5 senior judges, 1 Sheriff Principal from Scotland, 1 civil servant, 3 academics, 1 legal professional, a joint response from a House of Lords judge and an academic, and a confidential response).
Those in favour generally supported the perceived value of appointing part-time Commissioners. Five respondents, however, added a caveat to their answer and three respondents (this includes two from the five already mentioned) commented further on the issue:
- The five respondents said that any appointment of part-time Commissioners should only be made in addition to five full-time appointments.
- The three respondents were concerned that having part-time Commissioners should not detract from the resources available to full-time Commissioners.
Those who disagreed viewed part-time Commissioner appointments as disadvantageous. Two main reasons were given:
- The Commission would not be able to function properly as a true collegiate body, which in turn would have a detrimental effect on the quality and authority of Reports; and
- The output of work would slow down because of the limited availability of part-time Commissioners to control and guide their teams.
The following quotes are from respondents who favoured the ability to appoint part-time Commissioners.
Mr Ben White said, "The potential to make additional part-time appointments is supported for the reasons outlined in the consultation paper".
The Law Commission said, "We agree that it may be useful to make additional appointments of part-time commissioners but caution that in order to allow part-time commissioners to play a full part in peer review and corporate life of the Commission that appointment must be for a sufficient period each week (probably at least half-time)."
Lady Justice Arden said "I would not for my part be against the recommendation made in the Halliday report for the appointment of additional commissioners who would be part-time, provided that they were appointed on terms which the Law Commission then considered would be workable."
The Society of Legal Scholars said, "Yes, the Society firmly supports the proposal to appoint part-time Commissioners for all three of the reasons stated in the consultation paper. We have only two reservations (i) we would be concerned if more than one or two part-time Commissioners were to be appointed at any one time, as we believe this could make it more difficult for the Commissioners to operate in a truly collegiate fashion; (ii) we believe that very careful thought would have to be given to the practicalities of how such part-time appointments would work within the overall structure of the Commission."
The following quotes are from respondents who disagreed with the ability to appoint part-time Commissioners.
Sir Peter North said, "A great strength of the Commission is its collegiality the ability of all five Commissioners to engage in and share responsibility for the whole of the work of the Commission. Furthermore, experience has shown that Commissioners do not need to be "expert" in a field at least when reform activity in that field begins in order to be effective in driving forward a programme of reform. If more significant experience is sought, it can be better provided by the appointment of experts medium term and part-time as consultants. I see no force in the point in paragraph 2.6 on the use of part-time Commissioners in order to complete projects. That can be, and has been, readily achieved by ways other than the re-appointment of an out-going Commissioner on a part-time basis."
Dr Charles Harpum said, "First……...an outgoing Commissioner who wishes to finish his or her projects but does not wish to stay on full-time…..can be retained as a consultant. Secondly, there are…resource implications. If there are to be additional part-time Commissioners, they will require research and other assistance from lawyers employed at the Law Commission. Either this means that there will have to be additional staff or those staff will have to be drawn from existing teams and will mean that there are fewer staff available for full time Commissioners. Thirdly, one of the main functions of Commissioners is to consider collectively the work of every other Commissioner. It is a major and very important task….If there were part-time Commissioners they would have to do this just as much as full-time Commissioners. It would reduce the amount of time that they could devote to their particular projects. Fourthly…there is a grave danger that a solicitor might have an axe to grind because of some case in which he or she was acting or client for whom he or she was acting. This could influence the policy which he or she might try to adopt."
Sheriff Principal Iain Macphail said, "As to paragraph 2.3, when I was at the Scottish Commission no problem arose because of a need for a major project that was outside the Commissioners' area of expertise. If a part-time Commissioner were to be appointed ad hoc to take responsibility for such a project, it would also be necessary to form a supporting team from the existing staff of the Commission who would inevitably be taken away from their current work.
Paragraph 2.6 is concerned with the re-appointment of an out-going Commissioner on a part-time basis to see through an uncompleted project. In practice there were at the Scottish Commission two different ways of dealing with a project that was incomplete when the lead Commissioner left. One way was for the Commissioner who had departed to continue to advise on an informal basis….The other was for the project to be taken over by the incoming Commissioner…Neither course caused any difficulty.
Paragraph 2.7 points out that it would be possible to consider the appointment as Commissioners of people who were unable or unwilling to take on a full-time appointment. My experience of the Scottish Commission suggests that a successful practitioner would be most unlikely to be able to commit himself or herself to a Commission project to the extent necessary for timely and satisfactory completion. A part-time Commissioner who had family responsibilities would not have the distractions of practice, but, like a practitioner, would be unlikely to be able to take a full part in the consideration of other Commissioners' projects and drafts which make a vital contribution to the quality of the Commission's recommendations".
3 (11%) respondents (2 law reform bodies and 1 legal professional) did not provide an answer to this question but commented generally on part-time Commissioners. 2 of these respondents provided models of their respective law reform commissions. Both law reform bodies employ part-time Commissioners. The other respondent saw both the advantages and disadvantages of part-time Commissioners, and provided a view that neither agreed nor disagreed.
Overall summary of responses to question 1
Respondents were fairly evenly divided on the question of the appointment of part-time Commissioners. There was a slight majority favouring the appointment, albeit subject to conditions. Principal among these conditions was that there should not be a reduction in the number of full-time Commissioners. Those who opposed the proposition did so mainly on the grounds that such appointments would slow down work and undermine the collegiality of the Commission.

Number of Law Commissioners

Q.2 Do you agree with this approach to amending the requirements in the 1965 Act about the number of Law Commissioners (set out in paragraph 2.11 of the consultation paper)? If not what approach would you prefer?

This question is divided into two parts. The first part of question 2 was:

Do you agree with this approach to amending the requirements in the 1965 Act about the number of Law Commissioners?

18 (60%) respondents answered this part of the question. 7 (39%) agreed (2 senior judges, 2 civil servants, 1 legal professional, 1 business association and 1 professional body). 11 (61%) did not agree (2 senior judges, a joint response from 5 senior judges, 1 legal professional, 1 civil servant, 4 academics, 1 academic organisation and the Law Commission).
Three of the respondents gave the following reasons for their support.
The International Underwriting Association agreed on the basis that they would like to see a minimum number of five full-time Commissioners who would deal with the main bulk of the work, but with the facility to appoint a part-time Commissioner to provide expertise on a particular project.
The Law Reform Committee of the General Council of the Bar agreed on the basis that the "minimum should not include part-time Commissioners, lest the strength and standing of the Law Commission be diluted."
Mr Stephen Edell said, "Certainly if there are any difficulties in relation to Regulatory Reform Orders, and in view of the chronic shortage of parliamentary time, I consider that maximum flexibility is desirable. I would therefore not limit the power to appointing extra part-time Commissioners, but allow further full-time appointments as well."
Those who did not agree with the proposed approach gave one or all of the following reasons.
- On the basis of the responses given in question 1, question 2 did not arise;
- There was no justification for change; and
- Implementing any changes that would see a reduction in the size of the Commission should be dealt with by primary legislation.
The joint response from 5 senior judges said, "…we are opposed to the appointment of part-time Law Commissioners….We think it inappropriate that the Lord Chancellor of the day be given the power exercisable by secondary legislation to make alterations to the number of Commissioners. That would leave him or her free to reduce the important role which Parliament thought fit to give the Law Commission in 1965 by cutting the number of Commissioners available to perform its functions. Given the continuing heavy workload of the Commission, there is no justification for this change."
The Society of Legal Scholars said, "The Society firmly believes that it is not appropriate simply to amend the law so that the Lord Chancellor (or his or her successor) may appoint whatever number of Commissioners he or she deems suitable. In our view this places far too much power in the hands of the Executive. Nor, for similar reasons, are we convinced that the alternative proposal providing for a minimum of five Commissioners, with the potential to be varied down by secondary legislation is ideal……we would be concerned about the level of parliamentary scrutiny involved."
The second part of question 2 was:

If not what approach would you prefer?

Of the 11 respondents who disagreed with the first part of the question, 3 (27%) offered alternative approaches (the Law Commission, 1 academic and 1 academic organisation).
The Law Commission said, "We believe that the 1965 Act should be amended to provide that the Commission should be composed of a minimum of five full-time Commissioners but with no delegated power to reduce the minimum number of full-time Commissioners to below five."
Sir Peter North said, "If there were to be a change (which I do not support) then a variant of paragraph 2.11 should be considered, namely a statutory minimum of five with power to increase but not decrease by secondary legislation. A reduction in the total number of members of a statutory body of this kind must be a matter for primary legislation."
The Society of Legal Scholars suggested that the Commission should be composed of a minimum of five Commissioners, as now, but empowering the Lord Chancellor to appoint further Commissioners as the need arises.
1 respondent (3%), Mr Trevor Aldridge did not directly answer this question, but commented generally on the number of Commissioners. He said, "The number of Commissioners needs to have limits. First, there must be enough Commissioners to ensure that they take a broadly-based view of proposals; five should be made the minimum number. Secondly, there must not be so many that reform suggestions cannot be given vigorous and detailed examination; eight or nine should be the maximum number."

Overall summary of responses to question 2

Respondents were strongly opposed to the Government's proposal to amend the Law Commissions Act 1965 to allow for a minimum of five Commissioners but with an ability to change the minimum number up or down by secondary legislation as and when required. The majority of respondents, both for and against, were of the opinion that the Commission should consist of a minimum number of five full-time Commissioners with no delegated power to amend that number to below five. The Law Commission is currently made up of five Commissioners, all of whom work on a full-time basis.

Appointment of the Chairman

We asked four questions on the procedure for appointing the Law Commission Chairman. We consider them each in turn.

Q.3 Do you think that High Court judges would be unlikely to apply to an open competition for the Chairmanship? (We would be particularly interested in the views of High Court judges.) How could this be reduced? Would the same problem arise if there was a formal recruitment competition restricted to the senior judiciary?

This question is divided into three parts. Not all those who responded to the question answered all 3 parts. The first part of question 3 was:

Do you think that High Court judges would be unlikely to apply to an open competition for the Chairmanship?

12 (40%) respondents answered this part of the question (4 senior judges, a joint response from 5 senior judges, 1 legal professional, 1 civil servant, 1 academic, 1 academic organisation, 1 professional body and the Law Commission). All 12 (100%) were of the view that High Court judges would not apply to an open competition for the Chairmanship. The main justification given for this view was that the Chairmanship was not always perceived as an attractive appointment and opening up the position would only exacerbate the problem, as fewer High Court judges would be willing to apply.
The second part of question 3 was:

How could this be reduced?

4 (13%) respondents offered alternative recruitment methods (1 senior judge, a joint response from 5 senior judges, 1 civil servant and 1 professional body).
Mr Justice Beatson said, "While the method of appointment needs to be open, rational and fair, it is important not to adopt a method, which precluded "headhunting" of suitable candidates."
The joint response from 5 senior judges said, "As for the system for appointment, we suggest that the appointment of Law Commission Chairman should be left to the Lord Chief Justice as part of his judicial function in relation to the deployment of judges (subject to any involvement of the Minister that might be necessary in accordance with the Concordat)."
Mr Stuart Evans and the Law Reform Committee of the General Council of the Bar both suggested restricting the competition to the senior judiciary.
The third part of question 3 was:

Would the same problem arise if there was a formal recruitment competition restricted to the senior judiciary?

4 (13%) respondents answered this part of the question (1 senior judge, 1 academic, 1 professional body and the Law Commission). Three respondents, Lord Justice Longmore, Sir Peter North and the Law Commission, thought that the same problem would arise, that is, High Court judges would be disinclined to apply.

Overall summary of responses to question 3

The general consensus was that High Court judges would be unlikely to take part in an open competition for the Chairmanship, but a minority thought that this reluctance might be reduced if the competition was restricted to the judiciary. Some respondents suggested that the post should be characterised as a judicial deployment.

Q.4 Do you think that other candidates for Commissioner would be put off if the Chairman was not a High Court judge?

15 (50%) respondents answered this question. 11 (73%) respondents felt that having a High Court judge as the Chairman of the Law Commission was paramount to the Law Commission's standing in society. If the chairmanship were to be given to someone other than a High Court judge, it would send out negative and damaging signals. As a result, the number of candidates applying for Law Commissioner posts would decline (3 senior judges, a joint response from 5 senior judges, 3 academics, 1 professional body, 1 legal professional, 1 civil servant and the Law Commission). 4 (27%) respondents thought that candidates would base their decision to apply for the post of Commissioner on career aspirations, the standing of the Law Commission and the standing of the Chairman, rather than on the basis that the Chairman was a High Court judge (2 civil servants, 1 legal professional and 1 academic organisation).
The following quotes are from some of the respondents who felt that candidates for Commissioner would be put off if the Chairman was not a High Court judge.
The joint response from 5 senior judges said, "To appoint someone other than a judge to so important a post will be widely perceived, rightly or wrongly, to be a down-grading of the status of the Law Commission. That would have the consequences of making (the) recruitment of Commissioners…….more difficult…"
Sir Peter North and Professor Andrew Burrows both felt that the position of Law Commissioner might become less well regarded and unattractive.
The Law Commission said "We believe …that a Commission without a High Court judge among our ranks, will be a less appealing prospect and consequently the standard of applicants for the post of Commissioner is likely to decline even if the numbers applying are not affected."
Four of the respondents, all former Law Commissioners said that the fact that the Chairman of the Law Commission was a High Court judge was an important factor when they were considering applying for the post of Commissioner.
The following quotes are from two of the respondents who felt that candidates for Commissioner would not be put off if the Chairman was not a High Court judge.
The Society of Legal Scholars said, "We regard it as unlikely that candidates for other Commissioner posts would be deterred from applying in the event that the Chairman is not a High Court judge. Academic applicants are much more likely to have regard for other considerations (career advancement, a new intellectual challenge…) than the identity and status of the Chairman."
Mr Stuart Evans said, "In my opinion candidates for Commissioner would not be put off if the Chairman was not a High Court judge so long as the Chairman was not a political appointee."

Overall summary of responses to question 4

The majority of respondents were of the view that candidates for Commissioner would be put off if the Chairman was not a High Court judge. They considered that a High Court judge as Chairman was fundamental to the Law Commission's success. The general view was that appointing a Chairman who was not a High Court judge would have a detrimental effect on the Commission as a whole, not least on the number and quality of applicants applying for Commissioner posts. A minority took the view that if the Chairman was not a High Court judge this would not, in itself, put off able candidates.

Q.5 Do you think the standing or reputation of the Law Commission would be damaged if the Chairman (or any other Commissioner) was not a High Court judge? What effect do you think this would have?

This question is divided into two parts. The first part of question 5 was:

Do you think the standing or reputation of the Law Commission would be damaged if the Chairman (or any other Commissioner) was not a High Court judge?

24 (80%) respondents answered this part of the question.
17 (71%) respondents were of the view that a judicial Chairman strengthens the independence of the Commission, ensures that the Commission's recommendations for law reform carry authority, and allows an easy channel of communication with the senior judiciary. Without a High Court judge as Chairman, both the Law Commission's standing and reputation would be damaged. (4 senior judges, a joint response from 5 senior judges, 3 academics, 3 legal professionals, 1 professional body, 1 confidential response, 2 civil servant, the Law Commission and a joint response from a House of Lords judge and an academic).
Mr Justice Lloyd said, "…the Chairman ought to be a High Court judge, in order to ensure proper weight and authority for the Commission's recommendations and its status generally."
Mr Trevor Aldridge said, "There have been clear advantages in having a High Court judge as chairman of the Commission. The most obvious is the esteem in which the Commission is held and the respect given to its proposals…"
Dr Stephen Cretney said, "…the appointment of a High Court judge has special advantages. First (at least in my experience) Chairmen were able to engage in a considerable amount of informal 'consultation' with judicial colleagues on a daily basis. Secondly, other members of the judiciary would readily be satisfied that the Commission's recommendations were grounded in practical understanding of the working of the litigation process. Thirdly, the Chairman's judicial status made it less difficult for him to keep a certain authoritative distance from the other Commissioners, and this could sometimes be valuable. The Chairman's status also had an especial value when representing the Commission in the media, with professional groups, or indeed Government. Finally, the fact that the Chairman is a High Court judge gives the Commission a certain prestige, which may have an impact on those minded to accept appointment as Commissioners."
4 (17%) respondents were of the view that the standing or reputation would not be damaged (1 senior judge, 1 academic organisation, 1 civil servant and 1 business association). Three respondents justified their answers.
The International Underwriting Association said, "We do not think that the reputation of the Law Commission will necessarily be damaged by not appointing a High Court judge as Chairman, as long as the appointed Chairman had similarly recognisable qualities."
Sir Roy Beldam thought that the appointment of a highly regarded academic would not affect the Commission's standing.
The Society of Legal Scholars said, "In our view the standing and reputation of the Law Commission depends for the most part on the quality of its consultation papers and reports. If the best candidates are appointed to Commissioner posts, and they continue to have the best research support staff and to be adequately resourced, then we see no reason why the standing and reputation of the Commission should diminish."
1 (4%) respondent, Mr Donald Macrae, said, "The standing of the Law Commission could be damaged if the Chairman was not a High Court judge, because of the assumptions that people outside the profession make. However, this is not a popularity contest and I would hope that the Law Commission's ability to deliver results did not depend on the standing or reputation of its Chairman."
2 (8%) respondents, the Australian Law Reform Commission (ALRC) and an Australian academic, Mr Ben White, did not directly answer the question but instead commented on the status of the Australian Law Reform Commission. Mr White made a comparison between the ALRC and the Law Commission of England and Wales. He was of the view that "the ALRC, while very highly regarded, was not as respected as the Law Commission (of England and Wales), in legal circles….due partly to the lack of a judicial President."
However, in contrast the ALRC itself said, "it did not consider that its (own) reputation or standing within the legal profession has been diminished by the fact that the President is not a judicial officer."
The second part of question 5 was:

What effect do you think this would have?

7 (23%) respondents answered this part of the question (2 senior judges, a joint response from 5 senior judges, 1 legal professional, 1 academic, 1 professional body and the Law Commission). All of them felt that the overall structure of the Law Commission would be damaged without a High Court judge as Chairman of the Law Commission. Respondents made the following comments:
Lord Justice Longmore said that "…the Law Commission would become more like other quangos and lose its distinctive status."
The joint response from 5 senior judges said, "…this would adversely affect recruitment as well as the co-operation of consultees. We do not believe that any High Court judge would agree to serve under a Chairman who was not a High Court judge."
The Law Commission said, "Without a High Court judge among our numbers we shall lose the easy channel of communication with the senior judiciary; the forensic skill and practical knowledge that a senior judge brings to bear on issues; the public affirmation of the importance the Government attaches to our work; and the guarantee of independence that having a senior judge as our Chairman brings."
Mr Stephen Edell was of the view that if a change took place, it would be regarded as a "demotion."
The Law Reform Committee of the General Council of the Bar said, "It would reduce the prospect of implementation of the Law Commission's recommendations and reduce the quality of future applications for the post of Law Commissioner (not merely from other judges, but from practitioners and others)."

Overall summary of responses to question 5

The majority of respondents who answered this question were of the opinion that without a High Court judge as Chairman, the Law Commission's standing and reputation would be damaged. They considered that a judicial Chairman brought significant benefits in terms of the independence, standing and authority of the Law Commission.

Q.6 On balance, do you think the Chairmanship should be open to anyone qualified to be a Commissioner or restricted to High Court judges?

25 (83%) respondents answered this question.
2 (8%) respondents, the New Zealand Law Commission and the Australian Law Reform Commission, did not answer the question in terms. Instead, they described the qualifications for the appointment of President of their respective Commissions. These are as follows:
New Zealand Law Commission
The Law Commission Act 1985 states that the President shall be a judge or retired judge of the Court of Appeal or the High Court or a barrister or solicitor of the High Court of not less than 7 years' practice.
Australian Law Reform Commission
Section 7(2) of the Australian Law Reform Commission Act 1996 provides that a person must not be appointed as President or a member unless he or she:
1. is a judge of a Federal Court, or of a Supreme Court of a State or Territory; or
2. is, and has been for at least 5 years, a legal practitioner of the High Court, or of the Supreme Court of a State or Territory; or
3. is a graduate in law of a university, and has experience as a member of the academic staff of a tertiary educational institution; or
4. is, in the Governor-General 's opinion, suitable for appointment because of the person's special qualifications, training or experience.
On the assumption that these two bodies are content with their legislative arrangements for President, we would place these views with those who do not think that the role of Chairman should be restricted to High Court judges. On this basis 6 (24%) respondents were of the view that the Chairmanship should be opened up to anyone qualified to be a Commissioner (1 senior judge, 2 civil servants, 1 business association and 2 foreign law reform bodies).
1 (4%) respondent, the Society of Legal Scholars, was split equally, with 50% of its members supporting open competition, advocating that the key drivers for appointment should be transparency and merit.
Of those who favoured the proposition that the Chairman should be a High Court judge, 9 (36%) respondents were of the view that the Chairmanship should be restricted to High Court judges (3 senior judges, a joint response from 5 senior judges, 1 academic, 1 professional body, 1 legal professional, 1 civil servant and the Law Commission). A further 9 (36%) respondents were of the view that the Chairman should continue to be a High Court judge (1 senior judges, 3 academics, 1 confidential response, a joint response from a House of Lords judge and an academic, 2 legal professionals and 1 civil servant).

Overall summary of responses to question 6

The majority of respondents were of the view that on balance the Chairman should continue to be a High Court judge. It is not clear to what extent respondents thought that the appointment should be expressly restricted to High Court judges only by the Act. Nonetheless, a significant minority put forward arguments for a different approach, which seems to have been based on merits of encouraging diversity and the benefits of open competition.

Making the Changes by Regulatory Reform Order

The Regulatory Reform Act 2001 enables primary legislation to be amended by a special form of secondary legislation known as Regulatory Reform Orders.
We asked three questions on the suitability of a Regulatory Reform order for taking forward the proposals.

Q.7 Do you agree that these proposals are suitable for implementation by an order under the Regulatory Reform Act 2001?

9 (30%) respondents answered this question. Of these, 6 (67%) agreed (1 senior judge, a joint response from 5 senior judges, 2 civil servants, 1 professional body and the Law Commission). Explanations for this view were not given.
3 (33%) disagreed (1 senior judge, 1 civil servant and 1 academic organisation).
Mr Justice Beatson simply said, "The description of the benefit/burden impact of an order under the 2001 Act given in paragraphs 2.22 2.27 seem rather artificial."
Mr Stuart Evans said, "I do not necessarily think that the proposals are suitable for implementation by an order under the Regulatory Reform Act 2001; surely it should be a matter for the House of Commons."
The Society of Legal Scholars said, "Even assuming that the Regulatory Reform Act 2001 procedure is technically feasible, the Society does not believe that any proposal which might result in fewer than five Commissioners being appointed should be implemented this way. We accept that any actual reduction in future might have to be effected through secondary legislation. However, we are not convinced that this provides adequate parliamentary scrutiny unless there is a guarantee that any such regulations would necessarily be subject to the affirmative procedure. If the substance of the proposal is to go ahead we believe that Parliament, and especially the House of Lords should have the opportunity to debate the proposal. If the final proposal is amended so that the number of Commissioners cannot be fewer than five, then it may be that the Regulatory Reform Act 2001 procedure may be appropriate."

Overall summary of responses to question 7

The general consensus of the relatively small number of respondents who replied to this question was that the proposals were suitable for implementation by an order under the Regulatory Reform Act 2001. A sizeable proportion did, however, have reservations.

Q.8 Do you agree that the proposals would not remove any necessary protection or prevent any person from continuing to exercise any right or freedom that they might reasonably expect to?

10 (33%) respondents answered this question (3 senior judges, a joint response from 5 senior judges, 3 civil servants, 1 professional body, 1 academic organisation and the Law Commission). All 10 (100%) agreed. The Law Commission agreed, but with the following provision. It said "We agree that allowing Commissioners to be appointed in addition to the current five would not prevent any person from continuing to exercise any right or freedom that they might reasonably expect. We do however consider that any power to reduce below five the number of Commissioners would remove a necessary protection to ensure a Commission that was viable and could discharge the duty placed upon it by s3 of the 1965 Act."

Overall summary of responses to question 8

All of the respondents who replied to this question agreed that the proposals would not remove any necessary protection or prevent any person from continuing to exercise any right or freedom that they might reasonably expect to exercise.

Q.9 Do you agree that a statutory burden on the Lord Chancellor to appoint only a High Court Judge as Chairman of the Law Commission would be proportionate to the benefit and strike a fair balance between the interests of those affected and the wider public; and that an order including this measure would be desirable overall?

11 (37%) respondents answered this question. 9 (81%) agreed. (3 senior judges, a joint response from 5 senior judges, 1 academic, 1 civil servant, 1 professional body, 1 academic organisation and the Law Commission).
2 respondents, Mr Justice Beatson and the Society of Legal Scholars, qualified their answers by reserving their views subject to what they had said in question 7 above.
2 (19%) disagreed (2 civil servants). One respondent, Mr Stuart Evans, justified his answer. He said, "I do not agree with this statement and consider that this power should be taken away from the Lord Chancellor and the position of Chairman should be open to all with suitable qualifications."

Overall summary of responses to question 9

The majority of the respondents who replied agreed that a statutory burden on the Lord Chancellor to appoint only a High Court judge as Chairman would be proportionate to the benefit and would strike a fair balance between the interests of those affected and the wider public, and that an order to that end would be desirable.

Conclusion and Next Steps

We received a small but well-informed response to the consultation paper. We are very grateful to all those who replied. The majority of respondents were, or had been, closely associated with the Law Commission.
The consultation paper sought responses to nine questions, which we have divided into four groups. We will consider each group in turn.

Part-time Law Commissioners

The respondents were fairly evenly divided on the desirability of appointing part-time Commissioners. In our view, although some advantages would be gained by such appointments, the reservations expressed about their possible effect on the collegiate working of the Commission and the resource implications have persuaded us that the case for change has not been made out. Experience has shown that Commissioners do successfully take on projects outside the narrow confines of the area of expertise in which they previously practised. In those cases where additional expertise is necessary, the Commission is able to employ consultants. In these ways, many of the advantages that part-time Law Commissioners might have brought can be obtained, without complicating the working of the Commission. In addition, although the content of the Commission's work will always to some extent be influenced by the interest and expertise of the Commissioners themselves, the improved methods of setting the programme and working with Government should help to ensure that the Commission's projects are timely and relevant. No change is proposed.

Number of Law Commissioners

The approach of specifying a number of Commissioners variable by secondary legislation did not find favour with the majority of respondents. Of those who agreed with the approach, almost all specified that the minimum should never go below five. On balance, although there was some support for appointing part-time Commissioners, there is clearly no consensus for a flexible power to change the strength of the Commission. As in the case of part-time appointments, many of the possible advantages can equally be obtained by the constructive use of consultants. No change is proposed.

Appointment of the Chairman

The overwhelming majority of respondents supported the practice of appointing a High Court judge as Chairman. They thought this brought real benefits to the Commission, enhancing its reputation and the quality of its work. Appointing a Chairman who was not a High Court judge would, in their opinion, damage the Commission. A minority of respondents considered that the qualities required of a good Chairman could be found in candidates from other backgrounds. Such an approach would, in their view, promote diversity and opportunity.
There is considerable force in both these points of view. The Chairmanship of the Law Commission is an important public appointment. It should be filled by the person best able to meet its demands and that person should be appointed by a procedure that accords with the best principles of proper public administration. To date, it has been the practice of successive Lord Chancellors to appoint a High Court judge as Chairman. As can be judged from the responses to the paper, this has been a very successful policy, which has brought real benefits to the Law Commission.
We do not, however, think that this means that the post should, as of right, be restricted to High Court judges. Exceptional candidates from other qualifying backgrounds might well be able to fulfil the requirements of the post and maintain the standing of the Commission. Closing the post to everyone except High Court judges would remove the possibility that other candidates could emerge for consideration. Such a narrowing of the field might also seem to sit oddly with the aims of increased diversity and opportunity in public appointments.
We do, however, note the generally held view among those who replied to the consultation paper that any competition, whether open to all qualified persons under the 1965 Act or restricted to High Court judges, is unlikely to attract applications from High Court judges. This is an issue of some concern as it is obviously likely that at any one time there will be suitable candidates for the chairmanship sitting on the High Court bench. To lose the contribution that they might bring would be disappointing at the least and might be seriously detrimental.
With these considerations in mind we have decided that it would be premature to seek to amend the 1965 Act to restrict the post of Chairman to High Court judges. We shall continue to work closely with the office of the Lord Chief Justice and the office of the Commissioner for Public Appointments to develop the best procedures for the appointment of future chairmen.

Making the Changes by Regulatory Reform Order

The relatively small number of respondents who replied to these questions broadly agreed that the legislative changes under discussion could appropriately be made by way of a Regulatory Reform Order. However, as we are not persuaded of the case for change, no amending legislation is now planned. Should such legislation become necessary we would consider whether the changes proposed could be effected by means of a regulatory reform order.

Alternative suggestions put forward by respondents

Mr Grahame Cave MBE made the suggestion that the Law Commissions Act 1965 should be amended to allow one lay member to join the Commission who is not a judge, practitioner, or university law teacher. We are grateful to Mr Cave for his suggestion, which raises a question beyond the scope of the consultation paper. Opening the post of Law Commissioners to non-lawyers would be a significant departure from the present arrangements. Nonetheless, if it should be decided that the objectives of the Commission might be better achieved by bringing in a Commissioner who was, for example, an expert economist or social scientist, the proposition would then merit serious consideration. For the present, we do not propose to take forward Mr Cave's suggestion.

Consultation Co-ordinator contact details

If you have any complaints or comments about the consultation process rather than about the topic covered by this paper, you should contact the Department for Constitutional Affairs Consultation Co-ordinator, Laurence Fiddler, on 020 7210 2622 or email him at consultation

Alternatively, you may wish to write to the address below:

Laurence Fiddler
Consultation Co-ordinator
Department for Constitutional Affairs
5^th Floor Selborne House
54-60 Victoria Street
London
SW1E 6QW

If your complaints or comments refer to the topic covered by this paper rather than the consultation process, please direct them to the contact given on page 3.

The Consultation Criteria

The six consultation criteria are as follows:

Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.
Be clear about what your proposals are, who may be affected, what questions are being asked and the timescale for responses.
Ensure that your consultation is clear, concise and widely accessible.
Give feedback regarding the responses received and how the consultation process influenced the policy.
Monitor your department's effectiveness at consultation, including through the use of a designated consultation co-ordinator.
Ensure your consultation follows better regulation best practice, including carrying out a Regulatory Impact Assessment if appropriate.

These criteria must be reproduced within all consultation documents.

Annex A List of Respondents

A total of 30 responses were received. Only 29 are listed below, as one respondent wished their response to remain confidential.

The Right Honourable Lord Justice Buxton
The Honourable Mr Justice Beatson
The Right Honourable Lord Justice Longmore
Mr Donald Macrae
Dr Stephen Cretney FBA QC
Mr Ben White
The Honourable Mr Justice Lloyd, Vice-Chancellor of the County Palatine of Lancaster
Sheriff Principal Iain Macphail QC
Sir Edward Caldwell KCB QC
Mr Trevor Aldridge QC
Sir Peter North CBE QC DCL FBA
Mr Grahame Cave MBE
Joint response from The Right Honourable Lord Justice Peter Gibson, The Right Honourable Lord Justice Brooke - Vice-President Civil Division of the Court of Appeal, The Right Honourable Lady Justice Arden DBE, The Right Honourable Lord Justice Carnwath CVO and The Honourable Mr Justice Silber
The Right Honourable Lady Justice Arden DBE
The Society of Legal Scholars
The Law Commission
Mr Norman Marsh CBE
The International Underwriting Association
The New Zealand Law Commission
Professor Andrew Burrows QC
The Right Honourable Sir Roy Beldam
Dr Charles Harpum LLD
The Australian Law Reform Commission
Mr Stuart Evans
The Honourable Mr Justice Crane
Mr Stephen Edell
The Law Reform Committee of the General Council of the Bar
Joint response from The Right Honourable The Baroness Hale of Richmond & Dr Julian Farrand LLD QC
Mr Michael Sayers