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Quinquennial Review
of the
Law Commission

by
John Halliday CB

March 2003

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• Executive Summary
• Chapter 1: Introduction
• Chapter 2: Overview
• Chapter 3: Setting the Work Programme
• Chapter 4: Programme and Project Management Systems
• Chapter 5: Working Methods
• Chapter 6: Managing Performance
• Chapter 7: Implementation of Reports
• Chapter 8: The Ministerial Committee on the Law Commission
• Chapter 9: Human and Financial Resources
• Chapter 10: Next Steps
  
  
• Acknowledgements
• Annex 1: Terms of Reference of the Quinquennial Review of the Law Commission
• Annex 2: Review Methodology
• Annex 3: Financial Resources: Total Costs of the Law Commission
• Annex 4: Performance Data
• Annex 5: Law Commissions in other Jurisdictions
• Annex 6: Ministerial Committee on the Law Commission: Membership and Terms of Reference
• Annex 7: Ministerial Committee on the Work of the Law Commission: Proposed Terms of Reference
  
  

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Executive Summary

Overview

0.1    The Law Commission's contribution to improvements in the law is held in high esteem by the wide variety of its stakeholders who were consulted during this review. The review has found no grounds for disturbing the present functions of the Commission, or for proposing fundamental changes in its methods of working. The thrust of this report is that the recent developments made by both the Commission and Government to strengthen working processes should be taken further over the coming years. The aim of such developments should be to maximise the public benefits to be derived from law reform: the delivery of public benefit should become a "golden thread" running through all processes, from project selection, through project management, recommendations, implementation, and final evaluation of outcomes.

0.2    The public is the ultimate customer for the product, or benefits, of law reform. Government is, and should continue to be, the primary customer for the product of the Law Commission's work, since Government is responsible for decisions and action on its proposals. The Commission should also continue to take into account, the additional interests of the judiciary in its work, and make sure that its working links with the judiciary, and the Judicial Studies Board, are as systematic and productive as they need to be.

0.3    The Lord Chancellor and his Department should continue to be responsible and accountable for managing the interests of Government as a whole in the work of both the Law Commission and its cost-effectiveness. Efforts made in recent years to strengthen the working relationship between Government and the Commission are welcome, but the review finds scope for further development. In particular both the Commission and Government must learn to appreciate that close and effective communication throughout the law reform process does not pose a threat to the independence of the Commission.

0.4    The review did not look in detail at individual projects. It is important, however, that the Commission's work on codifying criminal law should take account of the Government's latest thinking on how this should be achieved and by whom. The implications of the Government's decisions must be assessed and carried through into the Law Commission's programme.

0.5    The Law Commission has many strengths, especially the high quality of its output. These need to be sustained during any future improvement programme. Scope for improvement lies predominantly in the timeliness and impact of the Commission's work, rather than its quality. Performance will be at its best when:

• the projects selected are those most likely to result in public benefits through successful law reform;

• Government commits itself in advance to act on successful outcomes from those projects;

• projects are managed to the highest standards, with regular reviews to ensure timeliness and to reappraise likely outcomes

• links between the Commission and all its stakeholders are as strong as they can be;

• the Commission's internal systems, and the systems for managing the relationship between Government and the Commission, are efficient and effective; and

• the Commission and its "sponsors" in the Lord Chancellor's Department have the necessary vision, commitment, skills and resources.

Setting the Work Programme

0.6    The distinction traditionally drawn between "items" in the Law Commission's "programme", and "references" from Government Departments, is unhelpful, albeit understandable because of the way in which the statute founding the Law Commission is expressed. Government and the Commission should now move towards a work programme consisting of all the law reform, consolidation and statute law revision projects to be done by the Commission over a period of three financial years. The projects in that programme would be timetabled and costed. When urgent work has to be accommodated in the approved programme, deliberate decisions should be taken on how any new work is to be taken on, including if necessary what other work has to be deferred.

0.7    Wide, periodic consultation should inform the future strategic direction of the Commission's work. The aim of consultation would be to gather:

• proposals for projects; and

• evidence on costs and benefits, to underpin project selection.

Methods of consultation need to be imaginative and varied, reaching out to a wide range of stakeholders.

0.8    Projects should be specific, deliverable pieces of work, not open ended studies. They should be selected according to an assessment of:

• their likely public benefits, if completed successfully;

• the likelihood of the Commission being able to achieve a successful outcome; and

• the likelihood of the Government being willing and able to act on the recommendations (if not immediately then within a reasonable period).

If the Commission is convinced that a project is worthwhile, notwithstanding lack of Departmental support, it should be able to put the case to the Lord Chancellor for including it exceptionally in the programme. The size of the programme will depend on the needs identified, the capacity of the Commission, and the capacity of Government. A formulaic approach would not be appropriate.

0.9    A three-year programme should be published annually, so that an up to date account of the Commission's work plans (except for any necessary in-year variations) is always publicly available. The Law Commission should take the lead in compiling the draft programme, in consultation with stakeholders inside and outside Government. Before deciding whether to approve it, the Lord Chancellor would (as now) ask his Ministerial Committee for advice.

0.10    In order to discharge its responsibility on behalf of Government as a whole, the "sponsor" division for the Commission in the Lord Chancellor's Department needs to develop a network of officials from across Government who are prepared to take an overall view of their Departments' interests in the work of the Law Commission, potential as well as actual. That network would then be equally available to the Law Commission for its own purposes, alongside the contacts it needs for the successful management of individual projects.

Programme and Project Management Systems

(i)    Programme Management

0.11    The Law Commission has developed generally sound ways of managing its programme, but these could be further improved. The Commission's management plan should be developed as the primary means of monitoring and managing performance during the first of the three years in the published programme. The plan should be streamlined, so as to concentrate on the high level information needed to manage performance at "corporate" level, leaving more detailed plans to internal management in the teams.

0.12    A streamlined management plan would (as now) form the basis for periodic performance reports by team managers, with the aim of assessing performance against planned objectives and targets, and of identifying and managing risks. The existing meetings between the Secretary and team managers should be held regularly and redirected towards matters of collective importance bearing on successful delivery of the programme. Taken together these reports and meetings should form the basis of regular reports to the Commissioners about performance against plan.

0.13     The reports to the Commissioners, and discussions of them, should inform periodic external reports to the Lord Chancellor's Department. The Law Commission's Annual Report should provide a public account of performance against the objectives set out in the programme and the management plan.

0.14    The Commission's attempts to monitor the costs of projects are welcome, but the system designed for this purpose must meet users' needs, and steps need to be taken to ensure that this is achieved. The final report on a project can then - and should - include an estimate of the costs incurred by the Commission in completing it.

(ii)    Project Management

0.15    Both this review and a parallel internal audit (conducted by the Lord Chancellor's Department) have found generally sound project management systems in the Law Commission, that are capable of further development and improvement. Good progress has been made in the use of Project Initiation Documents. In further guidance that the Law Commission has prepared for its staff on their production, it would be helpful to take account of the proposals in this report for assessing the potential benefits of projects from the outset. The Commission's project methodology should also incorporate regular review points in the management of projects, including periodic "stop/go" decisions, and regular liaison with the lead Department.

0.16    It would also be helpful if the Commission were to have more explicit and accessible guidance on the project management approach it expects its staff to adopt. It should take measures to ensure that all staff are familiar with the guidance and have the necessary skills and training to put it into practice.

Working Methods

0.17    In some of its work the Commission has already developed imaginative ways of "reaching out" to parties interested in a project and engaging them in its work. This could be done more widely. Although needs vary between projects, a flexible and targeted approach to consultation, rather than a reliance on paper based consultation, is likely to bring additional benefits. Government Departments need to be involved as fully as non-governmental parties during the life of a project.

0.18    By focusing more directly on the possible costs and benefits of recommended law reforms, the Law Commission ought to be able to make a significant contribution to the Regulatory Impact Assessments (RIAs) that are now required within Government as part of the pre-legislative process. It makes sense for the Commission to take this process as far forward as it can, because impact assessment is an integral part of policy development and implementation. Government Departments and the Commission need to work together to ensure that the right questions are being asked about costs and benefits and that the best possible estimates are made. In some cases the Commission should be able to produce what amounts to a partial RIA.

0.19    The Commission is rightly investing time (mostly at Commissioner level) in "after-sales" services, in the form of advice to interested parties on completed projects. Performance in this area seems likely to be varied, because of differing understandings about the types of services that are appropriate or desirable and the level of resources that can reasonably be invested in them. It would be helpful if the Commission were to develop a more explicit policy in this area, and enable staff as well as Commissioners to play a part in it, with appropriate guidance and supervision.

0.20    In general, the successful delivery of benefits could be facilitated by more corporate discussion of working methods and sharing of best practice between teams.

Managing Performance

0.21    Existing information systems have not enabled the review to draw detailed conclusions about the performance of the Law Commission or Government Departments. At present management information has to be drawn out ad hoc. A high priority for action on this report is the development of a performance management system that enables the Commission and Government to monitor and manage routinely their respective contributions to the law reform process. Such systems need not, and should not be complex, but their design may require expertise that will need to be specifically recruited for the purpose.

0.22    The performance management system will need to cover:

• time taken to complete projects

• time taken to reach decisions on completed projects

• time taken to implement action on completed projects

• the extent to which completed projects are acted on.

Ideally, at some stage, information systems should also provide feedback from Government Departments to the Commission on the outcomes of law reform - on the actual benefits delivered. This will probably need to be attempted selectively.

0.23    The available evidence strongly suggests that there is scope for improvement in the timeliness of both the reports and the decisions made on them. Projects will inevitably and justifiably be of variable duration, but the average length of completed projects is a useful indicator and should support a reasonable target for reduction. In terms of decision making, there is an existing target of six months for Government Departments to provide an interim response to a Commission report. This is useful and should be retained, but given the long delays that still occur, it makes sense to supplement it with a target reduction in the average time taken to reach final decisions. In due course, a similar target could be set in relation to the average time taken to act on reports.

0.24    The Commission has made its own estimate of the rate at which its work has been implemented. The review has produced a different estimate based on the Commission's work between 1985 and 2001. Once a method of measuring the implementation rate routinely has been established, thought can be given to whether performance can be improved, and if so how.

0.25    In addition to quantitative measures of the sort discussed so far, the Commission should consider other qualitative means of assessing its performance from time to time, for example through a survey of stakeholders or use of the EFQM Excellence Model.

0.26    The "sponsor" division of the Lord Chancellor's Department should take over responsibility from the Law Commission for collecting, interpreting and acting on information bearing on Departments' performance in responding to and acting on Law Commission reports. It is more appropriate for this to be done within Government, and will free the Law Commission to concentrate on its own responsibilities.

0.27    In assessing their respective performances, the Commission and Government need to avoid a "blame culture" and adopt instead a "listen and learn" approach. This means looking at the performance data and seeking to understand why poor performance (if it exists) is happening, and what realistic means can be identified of bringing about improvements. The Ministerial Committee, supported by the Lord Chancellor's Department and its network of officials has an important part to play in setting the right tone.

Implementation of reports

0.28    The Law Commission should retain the capacity to draft Bills and Regulatory Reform Orders (RROs). The drafting process is the ultimate test of the viability of proposals. Before proceeding to the drafting stage, however, project managers should consciously decide whether the prospects of action on the report are good enough to justify the drafting effort required. If not, a report with recommendations could be published without a draft Bill or Order.

0.29    Through the periodic reviews in project management the Commission should ensure that opportunities to use RROs as well as primary legislation are identified and taken. By tightening Departmental commitment to project selection and following through the "golden thread" of benefits management, the likelihood of implementation should increase.

0.30    Reforms of Parliamentary procedure that are now in train could have some benefits for Bills resulting from Law Commission reports. For example, the Government's business managers may include a Bill (that would not otherwise have been included) in the legislative programme on the grounds that it could be introduced late in one session and carried forward into the next, taking advantage of September sittings of the Grand Committee in the House of Lords. The prospects of this happening, however, are uncertain at present, and the benefits of the current reforms to the Law Commission may turn out to be marginal at best. It would therefore be worthwhile looking carefully at existing and potential special procedures that could lend themselves to Law Commission Bills while meeting the needs of Parliament. Such an effort would require a high level of energy and enterprise if it were to have any chance of being successful, but the existence of the special procedures created to facilitate legislation flowing from the Tax Law Rewrite Project suggests that the effort could be productive.

The Ministerial Committee on the Law Commission

0.31    The Lord Chancellor's Ministerial Committee on the Law Commission has an important part to play in supporting the relationship between the Law Commission and Government Departments. It could usefully develop its existing role if its terms of reference focused on three main tasks:

• approval of the three-year work programme of the Commission

• annual performance of the Commission in delivering the planned programme

• annual performance of Departments in acting on Law Commission reports.

If approved plans need to be varied during the year in question the Committee may also need to be involved ad hoc. In each task the Committee should ensure that the interests of all parts of Government (and not just those on the Committee) are represented; particularly in ensuring that all parts of Government are fully aware of the ways in which the Law Commission could contribute to their objectives. The Committee should continue to be advisory to the Lord Chancellor.

0.32    With a remit of this sort the Committee could establish a more regular cycle of meetings, directed at more specific purposes, than has been possible so far. It could also play a part in advising the Lord Chancellor on the action resulting from this report, and in monitoring the delivery of change.

0.33    It is very important that the Law Commission should have its own place on the Committee and be fully engaged in its proceedings. The Committee, or its Chair, might also from time to time usefully have a general discussion with the Commission as a whole about matters of common interest.

Human and Financial Resources

(i)     Human Resources

0.32     The Commission has developed imaginative and successful recruitment policies that fit its needs well, although it would like to be more successful in recruiting from the Government Legal Service. In general, staff like their work and find the Commission to be an agreeable and friendly place in which to do it. There are some specific issues, however, that staff-surveys suggest need to be addressed. With the limited resources available, the Commission sometimes finds it hard to follow up good action plans in order to see whether aspirations for improvement have actually been achieved.

0.33     The Commission makes frequent use of consultants, and gets good value from its research assistants. At Commissioner level, flexibility could be increased if additional part-time appointments could be made. Increasing the pool of Commissioners' expertise would allow the programme to be developed more easily in response to an assessment of needs and benefits. The present statutory restriction to five Commissioners should be removed, if an opportunity can be found, so as to facilitate additional part-time appointments. (An additional appointment could only be made when the need arises and when resources are available.) Any part-time Commissioner should play a full part in the Commission's excellent peer review processes for published reports.

0.34     The post of Secretary is in effect one of chief executive and would more appropriately and helpfully be designated as such. Given the predominantly managerial nature of the job, there is a good case for opening the post to non-lawyers as well as lawyers. To meet present and foreseeable needs, the post holder needs to commission a review of the support they needed from the Corporate Services Team, both in the medium, transitional term, and further ahead. Managing the changes recommended in this report will require a high level of energy and a wide range of skills, some of which can be brought in temporarily, but only under suitable internal leadership, at a sufficiently senior level accountable to the Secretary/Chief Executive.

0.35     Procedures for the appointment of the Chairman of the Commission need to be brought into line with the Code for Public Appointments. The review finds a strong theoretical case for opening the post up to all qualified candidates, instead of restricting it (as it has been up to now) to a High Court judge. There are likely to be practical difficulties in such a course, however, and it should be adopted only if they can be overcome.

(ii)    Financial Resources

0.36     The review has not found any reason to doubt the adequacy of the Law Commission's system of basic financial control, although some discrepancies were found between the financial information held by the Lord Chancellor's Department and that held by the Commission. The Lord Chancellor should continue to fund the Commission, on behalf of Government as a whole. This should not prevent the present practice whereby Departments supplement the Commission's budget in support of specific projects in which they have the leading interest, and whose progress would otherwise be frustrated.

0.37     Within the Lord Chancellor's Department, the "sponsor" Division should be enabled to take a more prominent part in financial planning and monitoring of the Commission. This should ensure there is a clearer link between setting the programme and allocating the budget.

0.38     Given the significant extra demands that a programme of codification could place on the Commission's resources, and the prospective benefits of codification for the criminal justice system as a whole, the relevant Departments should consider the possibility of jointly funding any expanded programme.

Next Steps

0.39    This report is intended to provide a basis for actions to be implemented over the next few years. Many of the recommendations go with the grain of what the Law Commission is seeking to do, and in part already doing. The challenges are as much for its sponsoring Department and the rest of Government as for the Law Commission itself. The collective challenge is to work more effectively together, standing not on dignity but on mutual respect and a shared determination to secure beneficial outcomes for the public.

0.40     The relatively limited resources available to the Commission make it important that a programme of action is carefully prioritised and resourced, using "borrowed" or "hired" skills when they are not available in-house. It will be necessary to ensure that there is sufficient skill in-house to appreciate what is required and how it may be achieved. It will be important to make an early start on some of the more difficult, and longer projects, alongside some that can be completed more quickly and easily.

0.41    The main benefits of acting on this report should lie in:

• an increased likelihood of action by Government on successfully completed projects;

• a clearer statement of the costs and benefits to be expected from acting on completed projects;

• a higher proportion of projects completed on time;

• reduced average time for completion of projects;

• reduced average time for decision making on completed projects; and

• better feedback about the benefits and costs resulting from implementation of completed projects.

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Chapter 1: Introduction

The Law Commission

1.1    The Law Commission is a non-departmental public body (NDPB), sponsored by the Lord Chancellor's Department. The functions of the Commission are set out in the Law Commissions Act 1965, which places it under a duty to "keep under review all the law with which [it is] ... concerned with a view to its systematic development and reform". The Act draws particular attention to the:

• codification of the law;

• elimination of anomalies;

• repeal of obsolete and unnecessary enactments;

• reduction of the number of separate enactments;

• and generally the simplification and modernization of the law.

1.2    Amongst other things, the Act also places the Commission under duties:

• to submit programmes for the examination of different branches of the law with a view to reform, including recommendations as to the agency by which any such examination should be carried out; and

• to prepare at the request of the Lord Chancellor comprehensive programmes of consolidation and statute law revision.

1.3    The Lord Chancellor is required to lay before Parliament both the Law Commission's programmes as approved by him, and the Law Commission's proposals for reform that emerge from those programmes.

The Review

1.4    The Government requires all NDPBs to undergo regular reviews in order to ensure that their functions meet current requirements. These reviews take place every five years, and are therefore called quinquennial reviews (QQRs). A previous quinquennial review of the Law Commission was completed in 1997.

1.5     The current review was announced on 23rd July 2002. The terms of reference assume that a body like the Law Commission will continue to be needed for broadly its present purposes. The review has not been asked to question whether the functions of the Law Commission are necessary, nor whether they need to be performed in the public sector. Rather, it has been asked to consider how the Commission's programme of work is set, how efficiently and effectively it performs, and how efficiently and effectively the Government and Parliament act on its reports. It has accordingly been about the whole law reform process, and especially the interdependent relationships between the Law Commission, as an advisory NDPB making proposals for law reform; the Government, as recipient of its advice and decision maker on its proposals; and Parliament, as deliberator on the Government's proposed legislation and ultimate enactor of it. The full terms of reference of the review are set out in Annex 1 and the review team's methodology is outlined in Annex 2.

1.6    This review has been free to make recommendations that would require legislation to amend the Law Commissions Act 1965. It has taken into account, however, the extent to which the current legislation allows room for discretion, and the desirability of avoiding fresh legislation unless it is essential for the delivery of sufficiently important benefits.

The Report

1.7    It is easy for a report of this sort to concentrate on scope for possible development, with the result that an unbalanced picture is painted, implying that "all is not well" and conveying less credit than is due to the organisations under review. This report tries at all stages to register strengths as well as scope for development. Evidence to the review shows that strengths, actual and perceived, are many and considerable. In the Law Commission the review has found:

• high levels of expertise, and of analytical and problem solving skills

• a strong tradition of openness and consultation

• responsiveness to points made in consultation and to requests for new work

• independence of judgment, and integrity

• an excellent peer review process

• papers and reports of high quality

• an informal, engaging management style

• high levels of personal accountability and motivation

• a conscientious and constructive response to recent demands for change

• flexible recruitment policies.

1.8    Nevertheless, evidence to the review also shows that the Law Commission, Government and Parliament can further develop their systems and practices so as to improve overall performance. The main questions dealt with in this report are:

• whether the Law Commission and Government have appropriate joint working methods for the delivery of public benefits over the coming years;

• whether the Law Commission and Government can work together more efficiently and effectively for that purpose;

• and whether Parliamentary procedures are as suitable as they might be for the consideration and implementation of proposals based on Law Commission reports.

1.9    The review has found that there are ways in which the law reform process, as supported by the Law Commission, could be improved. The Commission rightly and worthily aspires "to make the law fairer, simpler, more modern and cheaper to use" Endnote 1. The recommendations in this report are intended to help maximise its impact through Government and Parliament in fulfilment of those aims. Subsequent chapters spell out the detail. In broad terms these are:

• focusing more directly on the specific public benefits to be delivered through individual projects;

• creating a more comprehensive and measured way of setting the Law Commission's agenda through its work programme, on the basis of assessed needs, potential public benefits and the availability of resources;

• establishing a more specific and timetabled approach to programme and project management, keeping progress, including costs and delivery of anticipated benefits, under review and redirecting projects as turns out to be necessary;

• supporting Government Departments in the completion of Regulatory Impact Assessments to help gauge benefits and secure implementation;

• improving managerial systems (planning and reporting; performance management and monitoring resources and project costs) to support the above;

• further strengthening relations with stakeholders outside and inside Government making full use of consultation and adopting an "outreach" philosophy; and

• exploiting fully the available Parliamentary procedures, including where appropriate Regulatory Reform Orders.

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Chapter 2: Overview

Findings

Current role of the Law Commission

2.1    Although the existence of the Law Commission was not put into question by the review, it is important to state that it has found overwhelming support for a continued capacity to review the law independently from Government with the aim of securing benefits for the public. Law reform is not an end in itself, or an activity only of interest and benefit to lawyers and legal academics. Its purpose is to achieve real benefits for the public (citizens, organisations and institutions) that live under and use the law. It can do this in a number of ways:

• It may make substantive (qualitative) changes to the law to produce a fairer balance between the various rights and obligations that the law creates and to bring it into line with changes in social attitudes, for example reforms that extend the rights of married couples to co-habitees.

• It may make the law simpler, by removing unnecessary procedures, duplications or by permitting the use of modern technology, so that it becomes easier, quicker and cheaper to undertake the fundamental transactions that the law governs. For example, the Land Registration Act 2002 is intended to make the conveyancing process quicker, more certain and possibly cheaper.

• It may make the law clearer and more accessible, by modernising and changing the language, codifying, consolidating and repealing obsolete provisions from the statute book, so that individuals, organisations and their legal advisors can more readily ascertain and understand their rights and responsibilities.

People are more likely to comply with the law if it is simple, clear and accessible and they consider it up-to-date and fair. So successful law reform should also result in more compliance, fewer disputes and therefore less need for expensive legal advice when disputes do arise, as well as a greater confidence in the administration of justice.

2.2    This report takes the approach that delivering public benefits should be a "golden thread" running throughout the programme setting, programme and project management, report writing and implementation stages of the law reform process.

2.3    The review has largely found widespread and strong support for all three of the Law Commission's existing core functions: law reform, consolidation and statute law revision. However, one or two contributors have raised questions about the added value of consolidation in some cases. They, rightly, point out that there are inherent risks in embarking on major consolidation projects. To be worthwhile, the effects of such projects need to be long lasting, but it is often difficult to predict with any certainty whether any branch of the law is likely to remain unreformed for a long period.

2.4    The resource committed to consolidation is relatively small and has been reducing in recent years. The review has considered whether separate developments, especially the prospect of further development of the Statute Law Database, might reduce the need for this sort of work by the Commission. It seems that even if the Statute Law Database is developed as currently intended the need for consolidation or statute law revision will not diminish or be removed. A reliable and accessible database will simply make the disadvantages of proliferated and potentially inconsistent legislation more obvious. It will not produce the rationalisations and simplifications that are possible through consolidation (and any related paving legislation).

2.5    Some worthwhile consolidation requires a measure of substantive law reform as part of the process. Bringing consolidation projects into the programme setting process, as proposed in chapter 3, will enable the necessary, sometimes difficult, judgements to be made about whether the necessary expenditure of time and effort on a consolidation project is sufficiently likely to be worthwhile. Where substantive law reform is needed as part of a consolidation, special Parliamentary procedures may be appropriate, and chapter 7 recommends renewed effort to explore the scope for such procedures. The review also received a suggestion that the existing Advisory Committee on Statute Law could help to identify areas of law that would benefit from consolidation. This is worth further consideration. The review has not found grounds for doing away with the Law Commission's capacity to undertake consolidation projects.

2.6    In its primary function of law reform, the Commission has long since moved on from the original aspirations of its founders. It realises that, without prejudice to its duty to keep all law under review, it can only pay detailed attention to the possibilities of reform in a finite number of discrete areas at any one time. The Commission recognizes that it needs to focus on those aspects of law reform that are suitable for its organisation and expertise, and capable of being managed within its available resources. This approach is sensible and should continue. The Commission does not, as a rule, attempt to influence or oversee the law reform programmes of other organisations, nor to "outsource" projects to them, as appears to have been envisaged in the 1965 Act. It makes sense for the Commission to concentrate on its core business of developing and delivering its own work programme, bringing in "outsiders" to help where necessary.

2.7    This review has not sought to examine individual projects. One piece of work, however, requires comment: codification of the criminal law. This has long been a goal of the Commission, and recently the Government has adopted the goal more explicitly itself. The review was glad to find that the Government, led by the Home Office, is urgently working on what a programme of codification might consist of and how it might be managed. Meanwhile, the Law Commission continues to work on the project as part of its approved programme. In some scenarios, the work entailed in codifying criminal law could have a major impact on the Commission's resources (see 9.39). Furthermore, if codification of criminal law is to be attempted, means of keeping the resulting criminal code up to date will have to be found. One, perhaps strong, possibility is that the consolidation of subsequent legislation would be needed to keep the code (or codes) up to date.

2.8    As soon as possible, the Government should clarify and seek to agree with the Law Commission what it will be expected to do towards codification, over what period, and with what resources. Meanwhile, the Law Commission should establish whether there are risks that the work it is already doing may prove nugatory and if so how those risks should be managed. This is an area where there needs to be a very clear and shared understanding between Government and Law Commission over precisely what is to be done, by when. The conclusions should then be incorporated in the planning process advocated in the next chapter. Potential customers of the Law Commission's work

2.9    The ultimate "customers" of the Law Commission are the public, whose interests any law reforms are intended to serve. The intermediate "customer", however, is the Government, both as custodian of the public interest in law and its reform and the body that proposes measures to Parliament. The review has considered whether, in addition to Government, the Law Commission should develop its relations with the judiciary, making them too a formal intermediate "customer". This could be done by redirecting the work programme in two different ways, in order to:

• secure law reform through judicial decision making, as distinct from legislation; and

• clarify the current state of the law through judicial training.

2.10    On the first point, the review has found a good deal of evidence that the senior judiciary places a high value on the contributions that Law Commission reports can and do make towards informing judicial decision making, often by clarifying the scope and limitations of the current law or by outlining the law in other jurisdictions. On the other hand, there is widespread caution about whether any development beyond this would be desirable or useful. This review has found no grounds for arguing that a section of the Commission's programme should be dedicated specifically towards supporting or assisting judicial thinking and decision-making. Rather, it is important that the Commission should consistently identify such opportunities, when they arise, and maximize their contribution to judicial thinking. This could be done through their consultation papers and reports or through a short paper to the judiciary.

2.11    On the second point, the review has found evidence that a number of Law Commission reports have been used as the basis for advice and training for the judiciary, through the Judicial Studies Board (JSB). For example, during the course of the project on Bail and the Human Rights Act 1998 (Law Com No 269) it became apparent that the existing problems were not due to the law itself, but rather the way that it was being interpreted and applied. In order to deliver benefits, the Commission produced a report clarifying the existing law and the key messages were disseminated to the judiciary. However the review has not found support for the idea that part of the Commission's programme should be dedicated towards this function. Again, needs and opportunities should be managed as and when they arise. In order to identify and take advantage of such opportunities (as well as benefiting from practitioners' views on programme setting and proposals for reform), good, two-way communications between the Law Commission and the JSB are required. In criminal law, the need is well met by the involvement of the relevant Law Commissioner in the work of the relevant Committee of the Board. It is worth considering whether comparable arrangements would be beneficial in the non-criminal sphere.

2.12    In summary, there are advantages in sustaining a clear focus on one main "customer" - the Government - for bringing about worthwhile improvements in law on the public's behalf. It is a reasonable supposition that, as a rule, such improvements will require legislation. Such benefits as undoubtedly do flow from the Commission's work, from the point of view of the judiciary, are none the less valuable for being incidental to its primary purpose.

The Independence of the Law Commission

2.13    The Commission has frequent contact with relatively few Government Departments, including currently the Department of Trade and Industry, the Home Office, the Office of the Deputy Prime Minister and the Lord Chancellor's Department (as both "sponsor" and customer of its reports). Since the last quinquennial review, the Commission has worked hard to develop its relations with Government Departments with the aim of ensuring that both the selection of projects and its actual proposals for reform take account of Governmental views. It is notable that the number of projects referred by Government Departments has increased significantly in recent years (see Annex 4). This review welcomes and supports the continuing development of close working relations between the Commission and Government, while safeguarding the Commission's independence. Some contributors to the review have expressed anxiety about the ability of the Commission to sustain its actual and perceived independence if it works closely with Government Departments. This concern needs to be addressed.

2.14    As things stand, the perceived risk to the Commission's independence seems to be that, by working closely with Government Departments, the Law Commission will become, or will be seen as, an "extension" of Government Endnote 2. The fear is that the Commission could become so sensitive to Governmental concerns as to be indistinguishable from a Departmental legal advisory service. This fear is held both inside and outside the Commission. For example, contributions to the review revealed that a number of Departments do not respond to the Commission's consultation papers, even when they have some responsibility for the recommendations, believing that this would compromise the Commission's independence. There are two dimensions to this question, which need to be considered separately:

• the process by which the Law Commission's programme of work is developed; and

• the way which the projects within the programme are managed and delivered.

2.15    When developing the work programme, this report takes the view that the Law Commission and the relevant Government Departments should aim to agree on the most appropriate projects for inclusion. As a general rule, any project should have a sufficient degree of commitment from the relevant Government Department to justify going ahead. This means that Departments should agree to inclusion only when they are happy to endorse the prospective benefits of the work to be done, and are satisfied that there is a reasonable chance of action being taken if the project is completed successfully. (A reasonable chance is one where it is judged that action, on successful completion, is more likely than not. Departments should be free to approve inclusion of projects when the timing of action on a successful outcome is uncertain.) When necessary, however, the Law Commission should be free to press the case to the Lord Chancellor for the inclusion of projects that lack support in the relevant Government Department. The Lord Chancellor will weigh up this risk against the potential benefits of the project when deciding whether to approve the programme. The programme setting process is dealt with more thoroughly in the next chapter. The point is made here to show that working closely with Government Departments need not prejudice the ability of the Law Commission to press independently for the inclusion of projects it thinks are worth doing, still less its ability to report independently on the projects contained in its programme.

2.16    When carrying out the programme of work there is again everything to be said for sustaining regular and open communications with the relevant Government Department, just as with all other stakeholders. Departments should not receive preferential treatment, but the "outreach" approach advocated in this report should extend equally to them along with other interested parties. Seeking to gain maximum possible information does not prejudice the independence of the Commission's findings and recommendations. There is strong evidence that the Law Commission has been developing this sort of mature, managed relationship with Government and other stakeholders. This development is to be encouraged, and the proposals in the rest of this report are intended to support it. As part of this both the Law Commission and Government will need to promulgate the fact that close working relations do not threaten the Commission's freedom to reach its own conclusions after considering all the available evidence, opinions and arguments.

Performance

2.17    The performance of the Law Commission, Government Departments and Parliament in the law reform process can be assessed according to the following criteria:

• quality

• timeliness

• impact

These factors are interdependent. If the Commission's output is not of high quality, or timely, it is less likely to have beneficial impact. Similarly, the Commission, Government and Parliament depend on each other to achieve public benefits. Only where all three demonstrate the necessary will and ability to deliver will positive outcomes ultimately emerge. This review has found that the Commission has a high reputation for the quality of its work. The concerns voiced by contributors, and by this report, are about timeliness and impact. It is in those areas that the scope for further development and improvement lies.

Conclusions

2.18    The rest of this report is based on the following broad conclusions:

• the main focus of the Law Commission's work should be on delivering proposals for law reform that will result in public benefit

• the performance of the Commission, and the law reform process as a whole is to be judged by the quality and timeliness of its output, and - ultimately - by the delivery of the anticipated net benefits through implementation of its proposals

• the primary "customer" for the Law Commission's work should continue to be the Government, through the Lord Chancellor, but the interests of the judiciary as another potential "customer" should be kept in view

• in developing and managing its work programme, the Law Commission should work closely with Government and other interested parties, while retaining the right to argue independently for inclusion of projects in its programme, and to report independently on the outcomes of its work

The Law Commission and Government Departments are already working along these lines. The thrust of this report is "more of the same", not a radical upheaval.

Recommendations

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Chapter 3: Setting the Work Programme

Findings

Structure of the Programme

3.1    The way in which the Law Commission's programme of work is constructed owes much to the originating statute, which distinguished between the Law Commission's duty to develop a "programme" of law reform, and its duty to accept "references" from Departmental Ministers. The Commission has customarily distinguished between what it calls "items" in its "programme" and "references" from Ministers. The implication is that the Commission initiates "items" and that Government initiates "references", although that does not appear always to be the case. (The Commission believes that it initiated five of the eight "references" in the Eighth Programme, but the review has not sought to check this with Departments.) Again, owing to the statute, a "programme" of consolidation and statute law revision is set separately from the law reform projects. This segmentation of the overall programme of work is apparent not just in the published programmes of the Law Commission, but also in the ways in which the Commission, the Lord Chancellor's Department and the Ministerial Committee on the Law Commission, approach their work.

3.2    There are significant disadvantages in this segmented approach to law reform projects. "References", the review was told, tend to be defined more specifically, to be more tightly timetabled and more deadline driven than "items". As a result, observation and evidence suggested that "items" can stay in the "programme" for long periods, even when little or no work is being done on them. The Commission's record and reputation for timely outputs can suffer as a result. At a more mundane, but still significant level, the distinction between "items" and "references" creates confusion, even amongst those relatively familiar with the work of the Commission, and it complicates the public presentation of the Commission's work, making it less accessible.

3.3    There is also a less tangible disadvantage. There is a tendency to regard "items" as if they were "owned" by the Commission, and less subject to the principle of Departmental commitment. The Ministerial Committee has begun to address this point, with the aim of subjecting "items" to the same disciplines as "references", but there is a case for taking a more fundamental look at the distinction itself.

3.4    Since the creation of the Law Commission in 1965 there have been eight programmes, which have varied in length. In the past, the Law Commission and the Lord Chancellor's Department have sought to retain a degree of flexibility around the programme setting process. In 1999 it was agreed that the Commission would have some resource, perhaps 10% of its budget, available for unanticipated work arising during the course of the programme. The recommendations put forward in this report should remove the need for this arrangement.

Identifying potential projects

3.5    Both the Law Commission and Government Departments identify and put forward proposals for potential projects, although the review has found that some Departments are much less aware than others of how the Commission might be able to help meet their objectives. There are occasions when Government Departments do not think of the Commission as potentially undertaking work in their spheres. For example, it is possible that the Commission could work with a broader range of Departments and/or undertake the work necessary to implement certain European Community Directives. This should be explored further.

3.6    The last quinquennial review recommended wide consultation in drawing up possible projects for inclusion in the programme. In practice opportunities for new projects have recently been relatively few. The Commission has tried to tap into the experience of practitioners and other interest groups, in order to find out where the law is not working as it should, and where work by the Law Commission is likely to be of benefit. Nevertheless, this review found potential contributors to be less of aware of this process than might have been expected; suggesting that consultation could be further developed. Regular, wide consultation would be useful, not just to identify immediately foreseeable opportunities but also to take a more strategic view of where the Commission should be planning to put its efforts in the medium to longer term. Part of this process would be to make sure that all those capable of making a contribution to programme setting are given the opportunity to do so, especially voluntary organisations such as Citizens Advice Bureaux, Law Centres and others working in specific fields, for example housing.

Selecting Priorities

3.7    When it comes to identifying and selecting projects, the review has received differing views about whether the Commission should concentrate on "technical", "legal" issues or take on topics with a greater policy content. Some find this distinction artificial. They point out that all law has underlying policy intent. A more meaningful distinction might be the extent to which the solution to a policy problem lies in solving a related legal problem. Some have argued that the Commission should be prepared to draw up law reforms for differing policy options, although the nugatory work on options not chosen is an obvious disadvantage.

3.8    It has been put to the review that the Commission has become more risk averse over recent years and many have warned that the Commission should not be put off from a subject just because an important or controversial policy issue is involved. The current desire of the Commission to ensure that it identifies areas where vulnerable people suffer from inadequacies in the law is welcome. The likelihood is that, at any given time, the Commission's programme will include a range of projects, from the "drier" end of the spectrum in terms of policy or controversy, to the more "high profile" end. Indeed, such a spread is desirable in terms of spreading risk, provided other selection criteria are met.

3.9    Some put it to the review that, historically, the Commission's programme had tended to reflect the interests and expertise of the individual Commissioners. The approach taken by this review is that programme planning should reflect an assessment of where the current law is working so badly, with such severely adverse impacts on the public interest, that effort by the Law Commission to solve problems and deliver benefits would be justified. The Commission has already developed some excellent project selection criteria, which can be built on. It currently selects projects on the basis of:

• the importance of the issues;

• the suitability of the issues to be dealt with by the Commission; and

• the availability of resources in terms of both expertise and funding Endnote 3.

One or two have argued that the notion of benefits (and costs) is either irrelevant to the Commission's work, or (if relevant) too difficult to be manageable in any meaningful way. This review believes this to be overly pessimistic and suggests greater attention to the "golden thread" of delivering public benefits would be a natural development of the Commission's existing criterion of "importance".

Approving the Programme

3.10     It seems to be common ground that the Commission does not, and should not be completely free to "set its own agenda", in whole or in part. Nobody has argued against the current need for the Lord Chancellor to approve the Commission's programme, which is clearly intended to ensure that the programme has Governmental support. This review accepts this model for the relationship between Government and the Commission. The Lord Chancellor funds the Commission on behalf of Government as a whole. He is custodian of the public interest in approving the Commission's programme, and the value for money to be obtained from it. He can weigh up the risks and uncertainties that are unavoidable in an enterprise of this nature. At the outset of a project there can be no certainty about outcomes, whether from the Law Commission or from Government. Uncertainties and risks need to be managed, however, with the aim of maximising beneficial outcomes that will justify the costs involved. These considerations should underpin all aspects of programme planning.

Conclusions

Structure of the Programme

3.11     The Law Commission should take the lead in preparing its draft programme, working with the Lord Chancellor's Department in its capacity as "sponsor" Department. The programme should be defined as comprising all the work to be done by the Commission over a given period, irrespective of where the project proposal originated. The programme would include law reform, consolidation and statute law revision. The distinction between "items" and "references" should be removed, in theory and in practice. The Commission should move away from open-ended projects (typical of "items" in the past) and towards more tightly focused and time bound work. Long term, multi-faceted pieces of work should be broken down into discrete projects. This will facilitate the project management proposals put forward in Chapter 4.

3.12     The programme planning period should be three years, set over financial years, but the work would be specified in more detail in the first than in the subsequent years. The plans would be as precise as possible, but like all such plans would be capable of modification in response to changing circumstances. The programme should include key milestones, review points and performance indicators. It would be redefined annually.

3.13     If worthwhile projects cannot be accommodated in the programme, they could be identified as approved projects in waiting. A list of the approved projects in waiting could be annexed to the programme. The Commission would then be able to take up any opportunities to start them during the year, subject to securing approval of a timetabled project in the next annual programme review.

3.14     The Law Commission will need to consider the implications of this approach for its traditional publication of "Programme" documents. The Eighth Programme included a good deal of information about completed work, and action on completed work. In future, it would be sensible to differentiate more clearly between the Programme, as a forward plan (including its estimated costs), and the Annual Report, as a report on out-turn, which would be the better context in which to deal with action on completed reports (see 4.22). Both the published programme and the Annual Report should be based on financial years, in line with the programme itself.

3.15     The sort of integrated, timetabled, and outcome oriented programme advocated in this report is comparable to the sort of business plans that are now commonplace in the public sector. Such a plan, presented on a three-year basis, subject to annual revision and publication, would meet both a need for regular access by stakeholders to the work of the organisation, and the organisation's own need for a plan against which to manage and account for performance. Publishing a programme of this sort once a year would meet the Commission's statutory obligation. The published plans would also become the basis for the Annual Report on performance.

Identifying Potential Projects and Selecting Priorities

3.16     As part of the programme setting process the Law Commission should trawl widely for:

• ideas for potential projects; and

• evidence of prevailing problems and potential benefits, with which to prioritise project proposals.

3.17     As a first step, the Commission will need to conduct an exploratory "outreach" exercise to make sure it is tapping into all possible interest groups, inside as well as outside Government. As part of this they should consider:

• working with a wider range of Departments across Whitehall (on law reform and consolidation) and engaging with European issues;

• working with a wider range of interest groups;

• ways of enabling the public to put project proposals or views on the programme directly to the Commission, for example through an interactive website; and

• establishing an advisory panel, to offer views on the programme setting process and potentially worthwhile projects.

3.18     Following the outreach exercise the Commission should conduct a broad survey to gain views and evidence on where it could most usefully do work in future. This survey should be addressed to the judiciary (at all levels), the Judicial Studies Board, the Law Society and the Bar Council, Government Departments, legal scholars, non-governmental organisations with an interest in socio-legal issues and other stakeholders identified by the "outreach" exercise. The Commission should consider establishing and maintaining an up to date database of stakeholders for this sort of purpose. They could also look at ways of making effective use of research conferences and their existing annual meetings with the Law Society, Bar Council and the Society of Legal Scholars. The approach should not be based solely on the circulation of a single document, leaving it to recipients to respond if they choose. Carefully targeted consultation, including face to face discussions, aimed at stimulating and exploring ideas, needs to be part of a periodic review of future priorities. Timing should be a matter of judgement, but a thorough review of options seems likely to be necessary about every two or three years.

3.19     The size of the work programme at any one time will depend on the volume of worthwhile work identified; the resources available to the Commission; the resources available to the Government, in acting on the Commission's work; and the likely space in the Government's legislative programme.

3.20     In selecting the work to be done, the Commission should build upon their current criteria, taking into account:

• the best possible assessment of likely benefits, if solutions could be found;

• the likelihood of the Commission being able to arrive at those solutions, including the likelihood of it being able to secure the skills necessary to do so; and

• the likelihood of the Government being willing and able to implement the solutions.

As part of this approach to programme setting, the Commission will need to consider the skills it needs to identify, assess and measure beneficial impacts, and then take steps to fill any gaps.

3.21     The ideal outcome of such a process would be a draft programme of work based on an assessment of:

• the problems resulting from inadequacies in the law and prospective benefits of solving them;

• the Law Commission's capacity to deliver solutions; and

• the relevant Department's commitment to act on the outcome of a successful project.

Approving the Programme

3.22     The Commission's proposed programme (of law reform, consolidation and statute law revision) would go annually to the Lord Chancellor through his advisory Ministerial Committee, along with a commentary justifying it (see 8.8-8.9), a large measure of which would have already been agreed with the relevant Departments. In accepting any projects not supported by the relevant Government Department the Lord Chancellor would be accepting and underwriting the risk of work by the Commission proving nugatory.

Network of Whitehall Officials

3.23     In order for the Lord Chancellor's Department to manage Government-wide interests in the work of the Law Commission (including programme setting, the delivery of programmes, the implementation of completed projects and the collection of management information) it needs access to a network of officials from across Whitehall. Within the network each official would be responsible for representing the interests of their Department in collective decision making. This would be separate from the contacts needed in relation to individual projects. The Law Commission should have equal access to this network for its own purposes.

Recommendations

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Chapter 4: Programme and Project Management Systems

Findings

4.1    The review has looked at the way in which the Law Commission manages its overall programme of work and the individual projects within its programme.

4.2    The Law Commission's project management arrangements towards the end of 2002 were subject an Internal Audit report (conducted by the Lord Chancellor's Department). The findings and recommendations of this review are consistent with those of the Internal Audit and vice versa.

Managing the Programme

4.3    The Commission has a relatively lengthy management plan, covering one financial year, which it uses to support the management of its programme. The plan is also produced in summary form (the summary costed plan) as a more convenient basis for periodic reporting. In the plan, the aim of the Commission is expressed as being "to promote the reform of the law". This is supported by a single strategic objective "to publish recommendations to make the law simpler, fairer, more modern, and more cost effective". There are six operational objectives, drawn from the Law Commissions Act 1965:

1. To take forward the programme of law reform in the Eighth Programme
2. To respond to references
3. To prepare consolidation Bills on discrete areas of statute law
4. To prepare statute law repeal Bills
5. To provide timely and appropriate advice and information to government departments and other bodies concerned with the reform of the law
6. To prepare and submit to the Lord Chancellor an Annual Report.

The main body of the plan describes the activities to be carried out under each of the teams in the Commission, and lists the related milestones. (The summary costed plan expresses these activities much more briefly, whilst attributing costs to each.)

4.4    The plan is a good basis for managing the work programme and its constituent parts, but the Commission can and should continue to look for ways of developing it so as to make it even more fit for purpose. A more streamlined plan, geared to the needs of programme management at senior level, could remove the need for two separate plans; be more accessible and useful to its users; and contribute to more timely and better informed decision making. In line with the recommendations throughout this report, the Commission should make a tangible connection between its work and the delivery of public benefits. The management plan persuasively links the work of the Commission to the aims and objectives of the Lord Chancellor's Department and to the Government's aims for the criminal justice system. However, it is important that this link is clearly made in the Commission's own overarching aim and that its strategic objective goes beyond publication of reports to include the excellent "after-sales service" offered by the Commission, whereby they offer advice and commentary on implementing their proposals (see 5.10 for more information).

Reporting against the Management Plan

i)    Reporting Internally

4.5    Each month the team managers complete a management plan return, providing information on the:

• progress against the milestones in the summary plan; and

• number of hours worked on individual projects (theoretically allowing the Commission to calculate the cost of projects).

4.6    The review has not been able to identify ways in which information collected about costs of projects is used, but has been told by the Commission that it uses the information from time to time to monitor and compare the costs of projects, and to help predict such costs. Teams themselves did not seem to be aware of this and the review was told of difficulties in processing and interpreting the information collected. Work is in hand to develop a suitable financial information system but the review was unable to locate a user requirement, setting out what the system is intended to achieve. The Commission has so far concluded that such a user requirement is unnecessary, as the system is not new but the development of an existing system. This creates an unacceptable risk that user needs will not be met. The Commission should take steps to satisfy itself that the work being done can confidently be assumed to meet an agreed requirement, including the costing of projects.

4.7     The monthly returns on progress against the management plan are collated by the Corporate Services team, and any problems are flagged up to the Secretary. The review was not able to establish precisely what use team managers themselves make of the returns. At present, issues of importance tend to be raised and dealt with informally, between team managers and the Secretary. There is nothing wrong with this, provided that resolution of potentially important issues is not left to chance. This review supports the idea that a great deal of problem solving and troubleshooting can still best be done informally and bilaterally but questions whether this is enough, on its own, to deliver the work programme as efficiently and effectively as possible. It is suggested that both the Secretary and the team managers could make more effective use of the management plan and the periodic reports on it for strategic management of the Commission.

4.8     Separate, at present, from the reports against the management plan, the Secretary also holds regular meetings with team managers. These are currently used to pass on information bearing on the work of the Commission. The agendas can be long and difficult to complete. Furthermore, the amount of information to be conveyed can be so great that it leaves no opportunity to identify and resolve strategic issues affecting the Commission's work (for example, a media handling strategy or the need for socio-economic research or the use of experts). This review suggests that the Secretary's team manager meetings should be refocused, to support programme management. They should address issues of corporate importance, including delivery of the management plan and the management of associated risks, costs, and benefits. If necessary, separate ways of simply passing on information should be found.

ii)    Reporting Externally

4.9    The Commission's meetings with the Lord Chancellor's Department currently have a narrow focus, discussing only those reports awaiting acceptance or implementation from Government. In the future these meetings should be broadened to include oversight of the Commission's progress against its plan.

Managing Projects

4.10     The Commission has established well-designed procedures for initiating individual projects through formal Project Initiation Documents (PIDs). At the time of this review the Secretary was on the point of issuing revised guidance on their design and content, which should bring about further improvements. The proposed revisions are very close to meeting the needs identified in this report, and are to be welcomed, for example in their coverage of risks, equality and diversity, estimated costs, and a wide variety of other factors.

4.11     The sections of the guidance on the identification and management of potential benefits should, however, be re-examined. As it stands, the draft guidance asks project initiators to identify the reasons for undertaking the project, including a number of possible disbenefits in the existing law, and the number of people affected by them. In a separate section, it asks project initiators to identify the possible impacts of the project on various groups, including the "regulatory impact" (on which it refers to separate guidance). The review suggests that these two sections should be brought together, in order to link the "golden thread" of benefits management. It is acknowledged that costs and benefits are often hard to identify, and even harder to measure, especially at the outset of a project. The PID should offer a first shot at this, while also saying how the necessary further work is to be done. Even a broad definition of anticipated impacts including costs and benefits will be enough to provide a basis for review, during the project, of the extent to which anticipated impacts remain likely to be realised and the extent to which they can be further quantified.

4.12     Taken as a whole, the PID should form the basis of individual project plans. Neither this review nor the Internal Audit has identified an explicit project methodology adopted by the Commission, and used as a basis for induction and training. If such a methodology does not already exist, steps should be taken to put a system in place. Nothing complex is needed. A basic approach, including timetabled planning of work streams, built in review points, the identification of a critical path, and the use of Gantt charts should meet foreseeable needs. The Commission will need to ensure that all necessary staff are familiar and comfortable with the above.

4.13     Perhaps the most important development here is to ensure that all projects normally include built in review points. The Commission has begun to make use of scoping studies to help decide whether a full-scale project is worth doing, and, if so, how precisely it should be defined and run. The end of a scoping study is an obvious review point. Even when full scale projects are undertaken project leaders need to satisfy themselves at set intervals that the project remains on course, in terms of its:

• projected timetable;

• objectives and content;

• relations with interested parties outside the Commission;

• expected method of implementation; and

• anticipated costs and benefits.

For example, project leaders should consider the scope for implementation of recommendations through judicial decision making (see 2.10) or Regulatory Reform Orders (see chapter 7) at built in review points throughout the project. A section on the purpose and timing of these review points may need to be incorporated into the new PID guidance.

4.14     In addition, some projects may need formally identified points for "stop/go" decisions. The Commission has already shown its willingness to abandon a project when it no longer looks like delivering anticipated benefits. That readiness needs to be built into its project management arrangements, and not left to individual initiative.

Conclusions

4.15     The suggestions offered in this section of the report are given by way of illustration, and to start the ball rolling. It is important that the Law Commission should work out for itself which programme and project management systems will best meet its needs and those of its customers.

Developing the Management Plan

4.16     The Commission should consider whether a single management plan, covering the first financial year of the current three year programme plan and concentrating on high-level milestones, could be constructed for all purposes, both internal and external to the Commission. The plan should support corporate management of the programme rather than individual team management. (The Secretary and team managers could have more detailed plans and targets for their own purposes, if necessary.) The Law Commission already has a good basis on which to build. In developing the plan, they should consider whether:

• the Commission's aim adequately express its goal of securing benefits for the public;

• It is necessary or desirable to have both an aim and a more operationally focused strategic objective, or whether these be rolled into one aim, or mission, that goes beyond the Commission's published work;

• the Commission's operational objectives be usefully simplified and widened to:

  1. cover all its major operations, including the objective of preparing and submitting draft work programmes;
  2. provide a framework for reporting progress, so that the management plan would be structured around the objectives rather than round the teams.

4.17     For example, a unified aim and strategic objective might be: to achieve benefits for the public through law reform; and a simpler structure of operational objectives might be:

1. Prepare and submit draft programmes of law reform, including consolidation and statute law revision

2. Deliver the approved programme of law reform, consolidation and statute law revision

3. Contribute to action on completed reports

4. Provide necessary support for delivery of the work programme, and account for performance.

The first of these would help to focus the Commission's efforts to keep the rolling programme of law reform under review, and plan new work. The second would cover the whole of the approved law reform programme. The third would cover what is currently described as the Commission's "after sales" role. The fourth would cover more completely than at present the important work of the Corporate Services Team, and all efforts aimed at managing performance and accounting for it, including the Annual Report.

Reporting against the Management Plan

(i)    Reporting Internally

4.18     The periodic reports from team managers should highlight significant risks needing to be managed, actions needed to manage them, and any unavoidable variations from the plan. Ideally, the Commission should be estimating the cost of projects and monitoring actual costs against those estimates. As soon as the necessary information can be reliably collected this can be done, and published reports should then include a statement of the estimated costs to the Commission of completing the project. This will improve the Commission's ability to account for its use of resources, by linking those resources more directly to its main outputs.

4.19     At set intervals the Secretary should meet team managers to review progress against the plan and resolve any issues requiring collective discussion. It would be important not to suck into these high-level discussions those issues that could be satisfactorily dealt with through bilateral discussions between the Secretary and the relevant team manager. In advance, the Secretary would therefore decide (with help from the Corporate Services team) which matters to discuss bilaterally, and which collectively. Whether bilateral or collective, discussions would focus mainly on risks threatening the programme and measures to manage those risks. Such risks could include threats and adjustments to the planned timetable of the project; fresh assessments of the benefits previously anticipated from the project; other barriers to progress, such as skill shortages, information needs, disagreements amongst contributors; decisions whether to redirect or abort projects etc. The Secretary's meetings with team managers collectively should concentrate on overall management of the programme and issues of collective concern and importance. The outcome of discussion with team managers, along with the information supporting them, would provide the basis for a report from the Secretary to the Commissioners on progress against plan; any recommended adjustments; and any issues receiving attention.

(ii)    Reporting Externally

4.20     Systematic, yet informal, reporting arrangements should be put in place between the Law Commission and the Lord Chancellor's Department, making effective use of the existing meetings held three times a year. In order to avoid duplication, the Secretary's report to Commissioners of progress against the management plan would ideally serve the further purpose of such periodic reports to the Lord Chancellor's Department.

4.21    When considering the Commission's progress against plan the Lord Chancellor's Department should keep in mind the possible need to engage with its Whitehall network over an issue of sufficient importance (see 3.23). The network will not, however, replace the need for the Commission to liaise directly with their "customers" for specific projects and to keep them informed not only of the substance of the work (see chapter 5), but of the project's progress against plan. They should alert the relevant Department to any significant changes in the timing or direction of the final report, thus enabling them to plan for implementation.

4.22     The Annual Report should provide a public report of progress in the preceding year against the forward plan set out in the published programme and the management plan (also see 9.31). If the proposals in chapter 3 are accepted, the Commission's entire programme, and thus its reports, will be set over financial years. To allow time to assess performance over the year, and to benefit from the lessons that may emerge from this assessment, the Commission should aim to publish its Annual Report relatively early in the following financial year.

Developing Project Management

4.23     The Law Commission has already made headway in developing its project management systems. This review suggests that they build upon this by:

• doing more to estimate the potential impacts of a project in terms of the costs and benefits for those it will affect

• ensuring that a "user-friendly" guide to good project planning and project management is available to all relevant staff, along with suitable training when needed

• using fixed review points to keep costs and benefits under review and to ensure that opportunities to assist judicial decision making or use Regulatory Reform Orders are identified and taken wherever possible.

Recommendations

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Chapter 5: Working Methods

Findings

5.1    This section of the report considers some of the ways in which the Law Commission performs and delivers its work - its processes. It examines how these should be undertaken in order to follow through the "golden thread" of delivering public benefits.

Outreach and consultation

5.2    Outreach and consultation enable the Commission to make use of external experience and expertise - both inside and outside of Government - thus improving the quality and impact of their reports. The term "ivory tower" did not feature much in discussion during the review, but cropped up enough to suggest