This consultation closed on 2 September 2004.
This paper sets out for consultation whether recommendations 36 and 37 of the Quinquennial Review of the Law Commission 2002/03 should be taken forward and, if so, how they should be implemented. The proposals relate to the appointment of Commissioners.
The consultation is aimed particularly at the judiciary, university law schools, professional legal bodies, other Government Departments and bodies representing consumers and others with an interest in law reform in England and Wales. Also, at law reform bodies in the UK and abroad.
This consultation is being conducted in line with the Code of Practice on Consultation issued by the Cabinet Office and falls within the scope of the Code. The Consultation Criteria which are set out in this document have been followed.
An initial regulatory impact assessment indicates that only the Law Commission and its current and potential members and staff are likely to be directly affected by the proposals. The proposals which relate to the appointment system and not to substantive law reform will not, however, lead to additional costs or savings for businesses, charities or the voluntary sector, or on the public sector. Consequently, this paper does not contain a Partial Regulatory Impact Assessment. If you disagree with this conclusion you are invited to send your reasons as part of your overall response to this paper.
Copies of the consultation paper are being sent to:
However, this list is not meant to be exhaustive or exclusive and responses are welcomed from anyone with an interest in or views on the subject covered by this paper.
Please send your response by 2 September 2004 to:
Kirsty Milliam
Department for Constitutional Affairs
Civil Law and Justice Division
Law Commission Branch
1st Floor Southside
105 Victoria Street
London SW1E 6QT
Tel: 0207 210 2066
Fax: 0870 739 4260
Email:
Further paper copies of this consultation paper can be obtained from this address.
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential.
If you are replying by e-mail, your consent overrides any confidentiality disclaimer that is generated by your organisation's IT system, unless you specifically include a request to the contrary in the main text of your submission to us.
Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Respondents should also note the disclosure provisions under the Regulatory Reform Act summarised in paragraphs 8-10 of [Annex A] and paragraphs 17-20 of [Annex B].
A paper summarising the responses to this consultation will be published in six months time. The response paper will be available on-line.
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.
Alternatively, you may wish to write to the address below:
Laurence Fiddler
Consultation Co-ordinator
Department for Constitutional Affairs
5th 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 under the How to respond section of this paper.
The six consultation criteria are as follows:
This consultation paper takes forward two recommendations, concerning the recruitment of Commissioners, contained in the report of the quinquennial review of the Law Commission published in March 2003.
The Law Commissions Act 1965 provides for the Lord Chancellor to appoint five Law Commissioners, one of which is to be the Chairman. Commissioners must be recruited from judicial office holders, barristers, solicitors or teachers of law at a university.
The first recommendation was to amend the 1965 Act to allow for the appointment of additional part-time Commissioners. This would enable the Law Commission to take on the right projects at the right time and it should ensure that the scope of the Commission's programmes would not be limited by the expertise of its current Commissioners.
It would also allow for an out-going Commissioner to be re-appointed on a part-time basis to allow for him or her to finish the project they had been working on; and it would allow for consideration to be given to candidates who could only take on part-time appointments.
The consultation paper argues that the framework setting the number of Law Commissioners should be as flexible as possible, and proposes 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.
The second recommendation was concerned with the long-standing practice of only appointing High Court judges as Chairman. It proposed that consideration should be given to finding ways of opening up the Chairman's post to all suitably qualified candidates. If this could not be done without adverse consequences, the existing policy should be made clear and a recruitment process introduced that was acceptable to the Office of the Commissioner for Public Appointments.
There are obvious benefits for the Commission in pursuing this recommendation. The use of a broader pool of candidates would enhance the chances of getting the best person for the job. It would address any issues of diversity that may arise from restricting the post to High Court judges, and it would be more consistent with the Government's policy on open and transparent recruitment.
However, there are also disadvantages. High Court judges might be reluctant to apply for the post by way of open competition, and their absence from the Commission would break the direct link to and free interchange of ideas with the senior judiciary that it now enjoys. It might also effect the Commission's high standing and damage its reputation for producing high quality work.
The paper suggests that any amendments that may be necessary to the Law Commissions Act 1965 as a result of the responses to this consultation could be achieved by an Order under the Regulatory Reform Act 2001 and seeks views on that way forward.
1.1 The Law Commission and the Scottish Law Commission were established by the Law Commissions Act 1965, (the Act). The two Commissions have the duty to "take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law." The Law Commission achieves this through its programmes of work that are approved by the Lord Chancellor and laid before Parliament (The Government intends to abolish the post of Lord Chancellor and transfer its ministerial functions to the Secretary of State for Constitutional Affairs. Meanwhile this Consultation Paper refers throughout to the Lord Chancellor in whom the relevant statutory powers are currently vested).
1.2 The Act provides for the Lord Chancellor to appoint a Chairman and four other Commissioners. Commissioners must be recruited from judicial office holders, barristers, solicitors or teachers of law in a university. Those who hold judicial office may be appointed without the need to relinquish that office.
1.3 The Act provides for Commissioners to be appointed for a period of not more than five years. In practice the Chairman is appointed for three years and other Commissioners for five. Their periods of appointment may be extended or renewed. To date all appointments have been full time, but there is nothing in the Act to prevent part-time appointments.
1.4 All the Chairmen have been recruited from the High Court Bench. It has been the practice of the Lord Chancellor, when appointing the Chairman, to consult with the senior judiciary on the suitability of potential candidates before appointing one of them. The recruitment of other Commissioners has always been done through an open competition.
1.5 A quinquennial review of the Law Commission was carried out during 2002 and 2003 by John Halliday CB. Mr Halliday produced his report in March 2003.
1.6 The review found that the Law Commission's contribution to improvements in the law was held in high esteem and that there were no grounds for disturbing the present functions of the Commission, or for proposing fundamental changes in its methods of working.
1.7 Halliday made 42 recommendations in his Report, two of which relate to the appointment of Commissioners and the Chairman. This consultation is about those two recommendations.
2.1 Hallliday recommended 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" (recommendation 36).
2.2 The purpose of this recommendation was to create greater flexibility to enable the Law Commission to take on the right projects at the right time. Specifically, he was concerned that the scope of the Commission's programme at any given time was limited by the expertise of the current Commissioners. For example, none of the current Commissioners are family law specialists and the Commission is not undertaking any projects in this field.
2.3 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.
2.4 Halliday stressed the value of the collective process of peer review by all the Commissioners of every Commission publication, and felt that any part-time Commissioner should play a full part. The Government agrees with this objective, but recognises that, depending on their individual circumstances, it may not always be possible for part-time Commissioners to play as full or intensive a part in this as their full-time colleagues.
2.5 A power to appoint part-time Commissioners could have two other uses.
2.6 It would be possible to re-appoint an out-going Commissioner on a part-time basis so that he or she could see through any uncompleted projects on which they had been leading.
2.7 And 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 with their practice.
2.8 Although it is possible in principle now to appoint part-time Commissioners, doing so would reduce the effective size of the Commission, as there must be exactly five individual Commissioners. The proposed power might allow, say, two half-timers to be appointed instead of one full-timer. The two individuals would probably need to lead different projects, which might or might not be in the same area of legal specialism. This could have two benefits. Commissioners could be appointed from a more diverse pool. And the resulting Commission would have a somewhat broader range of expertise, facilitating a greater range of projects.
2.9 This proposal would require an amendment to the Law Commissions Act 1965. Halliday recommended only that the Act should be amended to enable the appointment of additional part-time Commissioners. But this has some disadvantages in policy and legislative terms. It would not allow for the 'job-sharing' described above in paragraph 2.8, and it would create a statutory distinction, which might be difficult to define clearly, between full and part-time Commissioners.
2.10 The Government considers that, if the Act is to be amended, it should be done in a way that provides the greatest possible flexibility. We do not have any plans to change the overall effective size of the Commission either up or down (other than by short-term appointments for particular projects). But either course may become appropriate in future (It would in theory be possible now to reduce the effective size 'by the back door' by making only part-time appointments). The simplest way to achieve this flexibility would be an amendment allowing the Lord Chancellor to appoint such numbers of Commissioners as he thinks appropriate, one to be Chairman. This would allow a larger or smaller number of Commissioners to be appointed, in any combination of full and part-timers, to meet the needs of the day.
2.11 But this might be considered too wide a delegated power. An alternative would be to provide that the Law Commission would consist of a minimum of 5 Commissioners, but with power to change the minimum figure by secondary legislation. This would allow for job-sharing or the appointment of additional part-timers (which is the immediate objective); but also create flexibility to appoint more full-timers or, subject to Parliamentary approval of the necessary secondary legislation, to appoint fewer Commissioners in total. And it would avoid the complexity of a statutory distinction between full- and part-time Commissioners.
2.12 Halliday recommended 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 proves impossible, and the post is reserved for High Court judges, that decision should be formally declared and explained, and procedures put in place to enable High Court judges to apply and be considered for the post in accordance with the Commissioner's Code for Public Appointments" (recommendation 37).
2.13 Halliday thought that, ideally, the Chairman should be appointed by open competition among all qualified candidates. But he was concerned that it was likely that High Court judges might then be reluctant to apply, so that a major part of the potential pool would be lost.
2.14 Halliday did not suggest any change in the role of the Chairman. It has been suggested in the past that the Chairman should have a more managerial role, and that, say, a senior businessman might be appointed. Following the adoption of his recommendation that the post of Secretary should be converted to one of Chief Executive, this idea is no longer relevant. The Chairman will continue to have three main roles:
2.15 The first and last of these require that the Chairman should continue to be a senior figure recruited from within the same pool as Commissioners generally. The issue is whether senior academics and practitioners should be considered as well as High Court judges.
2.16 The advantages of this would be that:
2.17 The disadvantages would be the risk that:
2.18 If the post were opened to all qualified candidates, future vacancies would be subject to open competition, as now with all other Commissioner posts. The vacancy would be openly advertised to those who qualified. Those interested would be required to submit full applications. There would be a sift of the applications, and then interviews before a panel containing an independent assessor.
2.19 If the policy of only appointing High Court judges were confirmed, changes would still be needed to the appointment process so that it satisfied the requirements of fairness and transparency set by the Office of the Commissioner for Public Appointments for public appointments by Ministers. There would probably also need to be an amendment to the Law Commissions Act in due course to bring the statutory position into line.
2.20 If only senior judges were to be appointed, the vacancy would still need to be advertised to all potential candidates. The advert could invite full applications to be followed by a formal interview process as above. Alternatively, in view of the small pool involved, it might be sufficient to invite simple expressions of interest. The Lord Chancellor in conjunction with the senior judiciary would consider all such expressions and identify one or more suitable candidates, who could be invited to an informal interview with the Lord Chancellor. In either event, the appointment would be by the Lord Chancellor either with the concurrence of or jointly with the Lord Chief Justice given his responsibility for the deployment of the judiciary.
2.21 Any change to the required number of Commissioners would require an amendment to the Law Commissions Act 1965. The Government believes that this can be achieved by an order under the Regulatory Reform Act 2001. The requirements that need to be satisfied to legislate in that way are set out in detail in Annexes A and B.
2.22 An order under the 2001 Act must reduce or remove a burden that a statute has the effect of imposing on a person carrying on an activity. A burden includes a legal restriction or requirement or a limit on a statutory power. In this case, the order would remove the burden of having to appoint exactly 5 Commissioners which the 1965 Act imposes on the Lord Chancellor as the minister responsible for the Law Commission and the appointment of Commissioners.
2.23 But the 2001 Act does not allow the removal of burdens that only affect ministers or Government departments. Someone else must benefit from the reform too; but there is no requirement that the other beneficiaries should do so in carrying on an activity. In this case, we think that greater flexibility in the number of appointments will benefit the Law Commission and its stakeholders, because it will be easier to ensure that its members have the necessary expertise to undertake the right projects at the right time. It will also benefit those who may be appointed to posts that would not otherwise have existed, and any appointed on a part-time basis who could not have taken a full-time position.
2.24 The proposal would allow fewer Commissioners than now to be appointed. We do not consider that the requirement for 5 Commissioners is a 'necessary protection' in the sense of the 2001 Act. But if it is, the proposal to introduce a minimum of 5 that can be reduced by secondary legislation would provide adequate Parliamentary protection against an unjustified reduction.
2.25 The proposal is concerned solely with the number of appointments. It does not affect the right of those qualified to seek appointment; rather, it broadens the pool by facilitating the appointment of those who can only work part-time. Nor does it affect the independence of Commissioners - their right and freedom to report as they find - once appointed.
2.26 If ministers conclude following consultation that the post of Chairman should continue to be held by a High Court judge, we believe that an appropriate amendment to the 1965 Act could be included in an order reforming the requirement about the number of appointments. This change would impose a new burden (legal restriction) on the Lord Chancellor who would be required to appoint a High Court judge as Chairman.
2.27 This provision would not affect any protection or freedom. It would remove the right, in principle, of barristers, solicitors and law professors to be appointed as Chairman. But as the Chairman has always been a High Court judge and there has never been an open competition for Chairman since the Commission was founded in 1965, we do not consider that this is a right that those theoretically affected could reasonably expect to enjoy. For the same reason, i.e. that there would not be any change in practice, we consider that a decision to impose this new burden in law will meet the 2001 Act tests of proportionality, fair balance and desirability.
We would welcome responses to the following questions set out in this consultation paper. Please give reasons for your answers wherever possible, and feel free to make any other comments you consider appropriate.
Name: ________________________________________
Date: ____ / ____ / ____
Organisation: ___________________________________
Address: ______________________________________
If you are a representative of a group, please give a summary of the people and organisations you represent:
Please send your completed response to:
Kirsty Milliam
Department for Constitutional Affairs
Civil Law and Justice Division
1st Floor Southside
105 Victoria Street
London SW1E 6QT
Tel: 020 7210 2066
Fax: 0870 739 4260
Email: