"One of the hallmarks of an advanced society is that its laws should not only be just but also that they should be kept up-to-date, and be readily accessible to all who are affected by them...
...English Law should be capable of being recast in a form which is accessible, intelligible and in accordance with modern needs." [Endnote 1]
The first part of this paper sets out a shared vision between Government and the Law Commission about how they will work together to deliver benefits to the public through reforming the law.
The second part contains detailed guidance to officials in Government departments and the Commission about how this is to be achieved.
The purpose of law reform is to deliver law that is simple, fair, modern and as cost effective as possible.
1.1 The Law Commission and Government will work together to achieve this in ways that are consistent with the founding principles of the Commission and its independence as a statutory body.
1.2 A recent report set out more fully the benefits that can flow from reform of this kind:
"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:
1.3 Delivering public benefits will be the objective throughout the law reform process, when the Law Commission's programme is being set, during the course of the Commission's work, and when the Government is considering and implementing the Commission's reports.
The Law Commission has a well-balanced rolling programme of work, consisting of projects on topics where there is a well-demonstrated case that reform is likely to produce real benefits.
1.4 The Commission and the Government agree that in settling its programme of work, their joint objective must be to identify projects that will produce real benefits for citizens and organisations by improving the operation, clarity and accessibility of the law.
1.5 To this end, the Government and the Commission are committed to wide consultation about possible topics for new Law Commission projects, to help identify areas where the need for reform is greatest.
1.6 To be included in the programme, projects will be assessed against the following criteria.
1.7 There is little point in the Commission taking forward projects if there is no prospect that a Government at a suitable moment would implement its recommendations. Implementation may require legislation (although it will not always do so). Consequently:
The Law Commission produces high quality reports, subject to wide consultation, including with Government, that are timely and persuasive.
1.8 The Commission is committed to:
1.9 The Government is committed to respecting the independence of the Law Commission as a statutory body. Through the relevant department, it is also committed to open communication about the progress of projects, and to informing the Commission as soon as appropriate about its views on the policy and practical issues arising.
Government responds promptly to Law Commission recommendations and, where appropriate, brings forward timely legislation.
1.10 law Commission reports can lose their value by becoming out of date if Government does not take them forward in a timely fashion.
1.11 The Government is therefore committed to providing a detailed response to all Commission reports - setting out which recommendations it accepts, rejects or intends to implement in modified form - as soon as is practicable. In any event, the relevant department will provide at least an interim response to the Commission within six months of publication of each report.
1.12 To assist this, the Commission will continue to provide an 'after sales service' to departments, including explaining or elaborating its recommendations.
1.13 The Government and the Commission are also committed to the greatest possible use of recent reforms of Parliamentary procedure, including the Regulatory Reform Act 2001, to accelerate the implementation of Law Commission recommendations.
This section sets out detailed guidance on procedures through which the Vision in Part I is given effect. It is aimed at officials in government and at the Law Commission. Its purpose is to ensure that there is a 'shared.... practice of the Law Commission working closely with... Government Departments, to deliver public benefits through Law Reform' [Endnote 4]. It reflects, in large part, working practices that have developed in recent years, particularly since the establishment of the Ministerial Committee on the Law Commission in 1999 (see section 2.2). It also gives effect to some specific recommendations of the QQR.
2.1.1 The Law Commission and the Scottish Law Commission were established by the Law Commissions Act 1965 (the Act). The Commissions have a statutory 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."
2.1.2 The Act provides for the Lord Chancellor to appoint five Commissioners, one of whom is the Chairman. The Act provides that the Commissioners are to be recruited from judicial office holders, barristers, solicitors or teachers of law in a university, and are to be appointed for periods of not more than five years, with provision for their tenure to be extended or renewed. Since 1965 all the Chairmen have been recruited from the High Court Bench and they have been appointed for three years.
2.1.3 The Law Commission is a Non-Departmental Public Body [Endnote 5]. As an NDPB the Commission is able to sustain strong working relations with departments while at the same time preserving its independence of thought. In practice, this means that the Commission can co-operate with departments on the development and selection of projects for inclusion in the Commission's programme of work, by regular communications and co-operation on impact assessment during the carriage of projects, and by providing advice and assistance to departments after it reports to facilitate implementation, while at the same time retaining its independence to report as it finds. This is clearly evidenced by the fact that departments do not always accept the Commission's final recommendations. It was also stressed by the QQR [Endnote 6].
2.1.4 The Government values and is committed to uphold and respect the Law Commission's independence. This independence is itself an important component of quality and credibility of the Commission's work. It enables the Commission to attract experts of the highest calibre to serve on the Commission, and ensures projects are carried out dispassionately, free from political or other undue influence, and subject to wide and open consultation.
2.1.5 The Act requires the Law Commission to propose "programmes for the examination of different branches of the law with a view to reform." The Commission is required to submit its proposed programme to the Lord Chancellor for his approval. Ministers may also refer additional projects to the Commission during the currency of a programme.
2.1.6 The Lord Chancellor, before deciding whether to approve proposed programmes and projects, now seeks the advice of the Ministerial Committee on the Law Commission.
2.1.7 The Law Commission can undertake projects aimed at a variety of outputs. In particular:
2.1.8 The Commission also produces consolidation bills and bills repealing obsolete and unnecessary enactments.
2.1.9 The Chairman promotes the role and work of the Law Commission and is its principal public face. He or she leads the Commissioners and represents their views to Ministers and other stakeholders. The Chairman also leads on particular law reform projects and has the special responsibility for overseeing the Commission's consolidation and statute law repeal work.
2.1.10 The Commissioners are responsible for leading the work of the projects in the Law Commission's programme of work. They engage with Government departments and other stakeholders on the implementation of published reports in their area of expertise (including any produced under a previous Commissioner). Commissioners also participate in a process of 'peer review' which establishes collective quality assurance and ownership of the Commission's products. Before the Commission's publications are finalised, all the Commissioners must agree to them.
2.1.11 The Chief Executive is the senior official at the Law Commission. He has overall responsibility for the organisation, management, staffing, resources and budget.
Sir Terence Etherton
Chairman
Appointed by the Lord Chancellor on 1 August 2006, for up to three years. Called to the Bar in 1974. QC since 1990. High Court Judge since 2001 (Chancery Division).
Kenneth Parker QC
Public Law
Appointed 1 January 2006, for up to five years. Before coming to the Bar in 1976, was a Fellow of Exeter College, Oxford and a University lecturer in law. Leading practitioner in European, competition and public law. Appointed Queen's Counsel in 1992 and has appeared in a number of high profile cases in his specialist fields. Made Recorder in 1999 and in 2000 became a Member of the Information Tribunal with special responsibility for appeals concerning national security. A Bencher of Gray's Inn.
Mr Stuart Bridge
Property and Trust Law
Appointed July 2001, for up to five years.
Re-appointed 2 July 2006 - 1 July 2008.
Lecturer in Law at Cambridge University since 1990, Fellow of Queens' College. Called to the Bar in 1981. Has been in part-time practice at the Bar since 1992.
Professor Hugh Beale QC
Common Law and Commercial Law
Appointed 1 January 2000, for up to five years. Re-appointed 1 January 2005 - 30 June 2007. Has been Professor of Law at Warwick University since 1987. Lectured at the University of Connecticut, University College of Wales at Aberystwyth and the University of Bristol. Called to the Bar in 1971.
Dr Jeremy Horder
Criminal Law and Evidence
Has been a Porjes Trust Fellow and Tutor and C.U.F Lecturer in Law since 1989, at Worcester College, Oxford. Chairman of the Oxford University Faculty of Law 1998 - 2000. Was University Proctor in the Proctorial year 1996-7 and former Chair of the Trustees of the Oxford Institute. Was Junior Research Fellow at Jesus College, Oxford from 1987-9. As a Commissioner, key projects that Dr Horder will be taking forward are codification of the criminal law and the law on criminal evidence.
Mr Steve Humphreys
Chief Executive
Appointed 1 January 2004. Joined the Lord Chancellor's Department in 1978 and was appointed to the Senior Civil Service in 1999. His most recent previous appointments were Secretary to the Corporate Board of the Department for Constitutional Affairs and before that Deputy Secretary of Commissions responsible for the appointment of Justices of the Peace, district judges and masters.
2.2.1 The Ministerial Committee on the Law Commission was established by the then Lord Chancellor in 1999. Its function is to take an overall view on the Government's interests in the work of the Law Commission, and in particular to advise the Lord Chancellor on the Commission's programme of work and proposed additions to it.
2.2.2 The Committee's terms of reference were revised in the light of the recommendations of the 2002-3 Quinquennial Review (QQR). [Endnote 7] The revised terms are set out below.
2.2.3 The membership of the Ministerial Committee is primarily made up of ministers from those government departments who have current projects with the Law Commission. In addition, the Cabinet Office is represented for its overall view and its interest in the legislative programme, regulatory reform and impact assessment. The Office of the Leader of the House of Commons and the Whips are represented because of their interests in the future legislative programme and Parliamentary procedure. The Law Officers have a general interest in the reform of the law, in particular criminal law. The Scottish Executive is included because the Law Commission sometimes carries out joint reviews with the Scottish Law Commission.
The present members are:
2.2.4 The Ministerial Committee is supported by a Secretariat made up of officials from the Law Commission sponsorship team in the Department for Constitutional Affairs.
2.2.5 The Secretariat can provide advice and assistance to government departments on the procedure for getting work to the Law Commission; and is responsible for monitoring departmental progress in responding to Law Commission reports and reporting to the Ministerial Committee.
Andrew Frazer
Head of Civil Law & Justice Division
Secretary to the Ministerial Committee
tel: 020 7210 1205 / email
Paul Hughes
Head of International and Property Branch
Tel: 020 7210 1765 / email
Jackie Littlechild
Policy Manager, Law Commission Section
020 7210 0788 / email
2.2.6 In response to a recommendation of the QQR, [Endnote 8] the Department for Constitutional Affairs has established a network of senior officials in all main domestic Whitehall departments, with responsibility for contributing to the strategic development of the law reform process and the Government's working relationship with the Law Commission.
2.2.7 In particular, the network members will:
2.2.8 The network is primarily made up of Board level 'Champions for Better Regulation', as these tend to have an overview of their department's policy and legislative agenda, as well as an interest in the related issues of regulatory reform and impact assessment. Departments have also nominated working level contacts to be responsible for general Law Commission issues (as distinct from policy on particular Commission projects). Contact details are in the table below.
| Department | Senior Contacts | Working Level Contacts |
|---|---|---|
| Department for Transport | Simon Webb 020 7944 3240 / Email |
Lynn Stevens 020 7944 4307 / Email |
| Home Office | Deborah Grice 020 7035 6964 / Email |
Roderick Macauley 020 7273 2911 / Email |
| Department for Education & Skills | David Noble 020 7273 5865 / Email |
Lesley Jones Morgane Parain 020 7925 7460 / Email Jim Constantinou 020 7925 6498 / Email |
| Office of the Deputy Prime Minister | Sandra Unerman CBE 020 7944 6090 / Email |
David Plant 020 7944 3009 / Email |
| Department for Trade and Industry | Sally Moss 020 7215 3006 / Email |
|
| Department for Environment Food and Rural Affairs | Donald Macrae 020 7238 3298 / Email |
|
| Department for Constitutional Affairs | Currently vacant. In interim - Andrew Frazer 020 7210 1205 / Email |
See 2.25 above |
| Department for Culture, Media and Sport | Alan Davey No tel given / Email |
|
| Department of Health | Santosh Dass 020 7210 5217 / Email |
|
| Her Majesty's Treasury | Stephen Parker No tel given / Email |
Catherine Moody 020 7270 4358 / Email |
| Cabinet Office | Philip Clarke 020 7276 2197 / Email |
|
| Department for Work and Pensions | John Griffiths 020 7962 8541 / Email |
|
| Scottish Executive | Valerie MacNiven 0131 244 8491 / Email |
Brian Peddie 0131 244 0357 / Email |
2.3.1 The Law Commission's work is planned and managed in a series of programmes. It began its 9th Programme on 1 April 2005. Programmes are 'rolling programmes' in that projects not completed in one programme are rolled over to the next. Programmes are subject to approval by the Lord Chancellor and are laid before Parliament.
2.3.2 In the past, the length of programmes and the time between new programmes have varied. In future, programmes will set out the planned projects for the following three years, and will be aligned with financial years and the Government's spending review cycle. This means that each programme will be superseded by a new one at the start of its third year, creating a one-year overlap. [Endnote 9] Progress against the current programme, and details of projects referred to the Commission during the previous year, are included in the Commission's Annual Report. The same information is also updated annually on the Commission's web site.
2.3.3 During the second year of its then current programme, the Law Commission will consult widely, including with Government departments, about its own ideas for new projects to be included in the next programme and seeking suggestions from others.
2.3.4 In the light of comments received and the selection criteria set out in the shared vision (Part 1, paragraph 1.8), the Law Commission will then draw up a list of candidates for inclusion in the next programme for discussion with the Government department responsible for the area of law concerned and other interested groups which can help it define suitable projects. The discussions with departments will seek to identify, and so far as possible agree:
2.3.5 Following these discussions and the outcome of the spending review, the Law Commission will draw up a draft proposal for is next programme, incorporating outline details of new projects as above and the remaining stages of existing projects to be carried forward.
2.3.6 The proposed new programme will then be considered by the Ministerial Committee, usually at a meeting in the January before it is due to start. Finally the programme, together with the committee's advice on it, will be put to the Lord Chancellor for approval.
2.3.7 It is likely to be unusual for the Law Commission to press for the inclusion of a project does not have the backing of the relevant department. But it may do so if it believes the project is worthwhile, perhaps initially limited to a scoping study to explore further the case for reform. The Commission should put its case to the Ministerial Committee and the Lord Chancellor, so that they can decide whether the merits justify the risks of going ahead with a project that may never be implemented. [Endnote 10]
2.3.8 New projects can also be referred to the Law Commission by departments at any time, and the scope of proposed projects can be extended. Departments should discuss the proposed project (or extension) with the Commission with a view to preparing a paper setting out:
2.3.9 The department should then submit its proposal to the secretariat to the Ministerial Committee. All proposals for new full-scale law reform projects will be put to the committee (and any other ministers with an interest in the topic) for consideration. This will usually be done by correspondence, with members being given at least 10 working days to respond. The chairman of the committee will then decide whether to approve the project on behalf of the Lord Chancellor or whether it requires his personal consideration.
2.3.10 Other types of work, such as scoping studies or changes to the terms of reference of existing projects, do not necessarily require consideration by the full Ministerial Committee, and may be approved by the chairman alone. The secretariat will advise on the best approach for handling each proposal.
2.3.11 If approval is given the secretariat will inform the relevant department and (where the Scottish Law Commission is involved) the Scottish Executive. The department may then, in writing, formally refer the project to the Law Commission.
2.4.1 The role of the Law Commission contributes to the aim of the Department for Constitutional Affairs (DCA) to build fair, effective and accessible justice services and to modernise the law and constitution. In view of this, the DCA funds the Commission on behalf of Government as a whole [Endnote 11]. It is responsible for securing the Commission's funding in spending reviews and for the allocation and monitoring of its budget.
2.4.2 The planning of the Law Commission's programme now aligns with the spending review cycle. This should ensure that, the programme reflects the financial resources likely to be for the following few years.
2.4.3 It is also possible for other departments to provide additional funding within a spending review period. The need for this may arise where the department wishes to refer a new project to the Law Commission or where the need for unforeseen additional work is delaying an existing project. The supplementary funding should relate to additional costs generated by the work or project in question that cannot be absorbed within the Commission's existing budget. It might be required, for example, to take on additional staff or consultants, to stage a consultative conference with stakeholders or to pay for an unplanned publication.
2.4.4 The Law Commission is responsible for agreeing the need for supplementary funding with other departments. It should also obtain agreement to the amount of funding and the required method for making the necessary budgetary transfers (see below). It should then inform the sponsorship team and the finance division in DCA.
2.4.5 When supplementary funding from a department is agreed, there are two options for effecting the transfer of funds:
2.4.6 Supplementary Estimates relate to the current financial year. There are also two options when the transfer affects more than one financial year:
2.4.7 For one-off projects/payments, paragraph 2.4.5a is likely to be the more appropriate method, given the relatively small sums that will tend to be involved. It is also simpler in that the paying policy division would not need to involve its departmental finance division. For projects spanning more than one year, a combination of paragraphs 2.4.5b and 2.4.6a will probably be preferable.
2.5.1 This section summarises the stages of a typical Law Commission law reform project, and the contribution that Government departments can make.
2.5.2 Section 2.3 describes the process by which projects are included in the Law Commission's programme. This includes discussion between the Commission and the responsible Government department, leading to a paper summarising the scope and purpose of the project, the likely impact of the recommendations and the timetable.
2.5.3 Once a project is approved, the Law Commission will usually prepare, for internal purposes, a more detailed project initiation document and project plan. The Commission will also contact other stakeholder departments that may have an interest in the project. Departments should respond within one month indicating whether they do have an interest.
2.5.4 Before writing a full consultation paper, the Law Commission may want to know more about how other people view the issues and their areas of concern. It can do this in a number of ways, by:
Interested departments should participate as appropriate.
2.5.5 It may be necessary to conduct technical research, for example economic analysis. For this purpose, the Law Commission may employ expert consultants. It may also seek specialist assistance from the lead department.
2.5.6 The Law Commission's research will be based on a detailed study and analysis of case law, legislation, academic and other writing, law reports and other relevant information both in the United Kingdom and overseas. The Commission will seek to establish the legal position existing in England and Wales and in other jurisdictions.
2.5.7 The conclusions drawn from the research will help the Commission decide on the main issues and the options for change. The Commission may decide to collaborate with the department on some aspects of the issues raised. In particular, the Commission should build on the assessment of the likely impacts discussed with the department at the planning stage (see section 2.6).
2.5.8 The Law Commission will draft and publish a consultation paper, publishing it in a press release or at a press briefing. The Commission will give notice of the timing of publication to interested departments, and usually let them have sight of the text of the paper. Copies of the consultation paper will be circulated to all interested parties, and will be made available on the Commission's web-site.
2.5.9 Departments should consider whether they wish to respond to the consultation paper and, if so, do so within the period indicated by the paper. Responses should indicate whether they represent the views of ministers or just officials; and whether or not they should be treated as formal responses to be included in any analysis of the consultation that the Commission may publish.
2.5.10 The Law Commission will thoroughly examine the responses received. It will be looking for new approaches, new arguments and new evidence. The Commission will make available, on request, responses to its consultation paper except to the extent that consultees have expressly or implicitly made their responses in confidence
2.5.11 It is usual for the Law Commission to follow up the consultation exercise, often by holding meetings with the main respondents. It is also common practice for the Commission to hold further seminars to discuss detailed points. Again, departments should participate as appropriate. In particular the Commission is likely to want to discuss its relevant emerging conclusions with departments.
2.5.12 The Law Commission will decide and formulate its policy from the conclusions of the detailed analysis of the consultation exercise. It will then draft a report and, if appropriate a bill, regulatory reform order or other secondary legislation. The report will include a discussion of the views expressed during the consultation.
2.5.13 The Law Commission will give interested departments reasonable advance notice of publication of the report and, if possible, early sight of the text. The Commission will publish its report, setting out its conclusions and recommendations, normally with an executive summary.
2.5.14 If the department consults formally or informally before reaching conclusions on a report, it will share any views received with the Commission (except to the extent they were made to the department in confidence). Section 2.7 describes the process for responding to Law Commission reports.
2.6.1 Government departments seeking ministerial agreement to policy recommendations (including those arising from Law Commission reports) are required to include assessments of the likely impact on others. In view of this, the Commission has agreed to help departments, so far as practicable and appropriate, to assess the impact of its proposals at an early stage by incorporating as much as possible of the ground-work (analysis and information-gathering) in its own processes. This section sets out the respective roles of the Commission and the department with lead policy responsibility.
2.6.2 Impact assessments can only be undertaken effectively and swiftly if the relevant issues are considered from the start of the policy development process. It can seriously delay Government's response to a Law Commission report if the responsible department has to start the impact assessment process from scratch after the Commission reports.
2.6.3 Annex A sets out the main types of impact assessment that may be needed. An impact assessment is a short, structured document, which is published with proposals and new legislation. It briefly describes the issue that has given rise to a need for reform or regulation and compares various possible options for dealing with that issue. The costs and benefits of each option are identified - and quantified wherever possible - to assist informed public debate.
2.6.4 An impact assessment is not an add-on to the policy process, but an integral part of policy development culminating in the advice that goes to ministers. It is better understood as a process than a document. This process, described here, is based on that for regulatory impact assessments. [Endnote 12] There are three main stages:
2.6.5 The procedures set out below seek to adapt this process to the particular circumstances of Law Commission projects. They should be read and applied flexibly. Different topics will require different approaches in terms of level of detail, presentation etc.
2.6.6 At the stage before a proposed project is put to the Ministerial Committee, the Commission and the lead department will discuss and briefly outline the main impacts of the recommendations which might flow from the project (see section 2.3).
2.6.7 So far as is necessary and practicable given the substance of a particular project, the Commission will seek to elaborate the initial impact assessment and identify information that would assist the lead department to develop any full impact assessments that may be needed. Where they think this would be helpful, the Commission will seek non-legal expert input, for example economic analysis. Lead departments should be prepared to provide this where appropriate.
2.6.8 The Commission will include in its consultation paper an analysis of the impact of the options discussed (or a statement that the impact is likely to be negligible or is impossible to ascertain) - this is akin to the partial IA stage. This will usually be set out in one place, possibly as an annex if the analysis is detailed, and include:
2.6.9 The Commission will pass to the lead department any relevant views and non-confidential information received. It will also summarise consultees' views about impact in its report or separately to the department on or before publication of its report.
2.6.10 It is for the lead department to prepare any necessary full impact assessments, to submit these to ministers when seeking a policy decision on the report and subsequently to publish them. The fact that publication of the formal impact assessments will take place some time after publication of the Law Commission's report should help prevent any confusion about the respective responsibilities of the department and the Commission, and serve to safeguard the latter's independence.
This Annex lists the main formal impact assessments that departmental policy makers are required to undertake before submitting policy proposals to Ministers. It seems unlikely that any but the first two would be relevant to the great majority of Law Commission projects.
Regulatory Impact Assessment
The Cabinet Office guidance on RIAs can be found on the cabinet office website.
2.7.1 Once the Law Commission has produced a report, it is important that Government considers and responds to it as soon as practicable. If there is delay in reaching conclusions on a report, or in implementing recommendations that have been accepted, there is a risk that the proposals will become out of date. This in turn can create more work for departments, in terms of further analysis and drafting, if and when the matter is eventually taken forward.
2.7.2 The Government department with lead responsibility for the subject matter of a Law Commission report is responsible for ensuring, in consultation with other interested departments, that the Government reaches a timely decision whether to accept, modify or reject each recommendation in the report. It should then provide a written response to the Commission, itemising these decisions.
2.7.3 The Ministerial Committee on the Law Commission has agreed that departments should aim to respond to a Commission report within six months of its publication. Where this is not possible, the department should provide a detailed interim response within the same time-frame, indicating so far as possible which recommendations it is minded to accept, modify or reject, together with a timetable for further consideration and decision. In any event, departments are required to give a definitive decision on whether they intend to implement a report, within two and a half years of its publication. Interim and final responses should be sent to the Chief Executive of the Law Commission and copied to the Ministerial Committee secretariat.
2.7.4 If, when considering a report, officials are minded to advise ministers either to reject it or substantially modify any of its significant recommendations, the department should first give the Law Commission the opportunity to discuss and comment on officials' reasons before they finalise their advice for ministers.
2.7.5 Once conclusions have been reached, it is usual for the lead department to announce the outcome, probably to Parliament by way of written Ministerial Statement in the Commons and Parliamentary Answer in the Lords. The department should give the Commission reasonable notice of the content and timing of the announcement.
2.7.6 The secretariat to the Ministerial Committee on the Law Commission is responsible for monitoring progress on responding and implementing Commission reports. When a report is published the secretariat will write to the appropriate department reminding it of the requirement to respond within six months. A further reminder letter will be sent after 5 months. The secretariat also seeks brief updates from departments on all outstanding reports each January and July to inform the Ministerial Committee of progress in implementing Commission recommendations.
2.7.7 Within two and a half years of a report being published, departments must provide a final response, by taking one of the following three actions: 1. provide a final decision on the report, 2. confirm that it is under active consideration - and give a firm date by which a decision will be reached or 3. explicitly state that no further work on the report is planned. In the latter event, the secretariat will treat the Commission's report as 'not implemented' and remove it from the system for monitoring outstanding reports. This process becomes increasingly artificial and burdensome with the passage of time, as it becomes increasingly more likely that the recommendations and any draft Bill would require substantial reconsideration, and that those who worked on the report at the Commission would no longer be available to assist. Departments should send their final response to the Chief Executive of the Law Commission and copied to the Ministerial Committee secretariat.
2.7.8 The Law Commission naturally takes a considerable interest in the outcome of its work following publication of its reports. The Commission is very willing to try to assist Government (in practice, generally the lead department) in this regard. This applies both while Government decides whether to accept or reject the recommendations, and, if it decides to accept them, through to implementation. This assistance is sometimes known as the Commission's 'aftersales service'. The Commission may be able to assist in a range of ways, for example:
2.7.9 However, the Law Commission's capacity to assist depends on its resources. It especially depends on whether those who took the leading role in the Commission's work on the project are still working at the Commission. The closer it is to the publication of the report, the more likely it is that the relevant Commissioner and staff will still be at the Commission and able to assist.
2.7.10 The Law Commission may also follow up the report in a number of other ways, according to the circumstances of the particular project. For example:
2.7.11 The Law Commission will of course observe any necessary confidentiality about its discussions with Government.
2.7.12 If the Law Commission's Report was produced jointly with any other organisation (for example, the Scottish Law Commission), the Commission would liaise with that organisation in providing its aftersales service.
2.7.13 The value of the Law Commission's work ultimately depends on its delivering the expected benefits to the public when its proposals are accepted and implemented. As with any policy change, it is the responsibility of the implementing department to monitor the outcome and evaluate the success of the reform. Departments should copy to the Commission the results of their evaluations of reforms stemming from its work. [Endnote 13] It can inform both the content of future programmes and the way the Commission approaches projects generally, if it knows whether or not previous reforms have been successful.
2.8.1 This section discusses the issue of finding Parliamentary time to pass the legislation necessary to give effect to Law Commission recommendations. Most of the Commission's proposals for law reform do require legislation. [Endnote 14] The Commission's work will be wasted or lose much of its value if Parliamentary time cannot be found, or if legislation is so delayed that the recommendations are overtaken by other changes to the law or in society.
2.8.2 Once the Commission has reported, it is the responsibility of the relevant department to decide whether to accept all or some of its recommendations, accept them with modifications or reject them. And, if it is required, it is the responsibility of the department to secure the necessary legislation. In most cases, it will be necessary for the department to get policy clearance from the relevant Cabinet Committee and bid for a place in the Government's legislative programme, although some smaller bills may be suitable for handing out to a private member or peer.
2.8.3 Over the last two decades there has been an increasing problem in getting Law Commission recommendations implemented. The pressure on parliamentary time, and the inevitable focus that brings on legislating the Government's immediate priorities has meant that Commission proposals have either had to wait longer than desirable to be implemented or have not been implemented at all. The Commission's proposals may in some cases be either uncontroversial or technical (or both) and as such may be suitable for streamlined special Parliamentary procedures. Departments should consider, when putting together their bids for the legislative programme, bidding for time for outstanding Law Commission bills and whether they can use the available streamlined procedures in appropriate cases.
2.8.4 Some Law Commission proposals will be suitable for implementation by Regulatory Reform Order (RRO) under the Regulatory Reform Act 2001 (RRA). This should be preferred to primary legislation wherever appropriate.
2.8.5 The RRA provides wide powers to amend and re-enact legislation. The main requirements are that the reform includes measures to reduce burdens imposed by Statute, and that the sponsoring minister is satisfied that it meets various tests. There is also a requirement for the minister to consult before laying an RRO before Parliament. Further guidance on RROs can be found at: www.cabinet-office.gov.uk/regulation/act/index.htm
2.8.6 It is possible that when departments and the Law Commission are considering a possible law reform project, it will be apparent that the likely outcome of the project will fall within the scope of the RRA. Departments and the Commission should be alive to this possibility. It is more likely that it will not be until the Commission is beginning to formulate its policy and recommendations that the means of implementing its proposals can sensibly be considered. The Commission will always consider whether its proposals could be implemented by RRO and will seek the views of the lead department as soon as the possibility of using the RRO procedure becomes apparent. It may also seek advice from the Cabinet Office on whether the kinds of reform that might be proposed are of a similar nature to those Parliament has already accepted as being within the scope of the RRA. The department should give an indication of whether ministers are likely to consider that the proposals are suitable for an RRO in terms of being uncontroversial and passing the statutory tests.
2.8.7 If the possibility of using an RRO emerges before the Law Commission consults on the options for reform, the Commission's consultation paper should refer to this possibility.
2.8.8 Where the Law Commission believes its proposals can be implemented by RRO, and in the light of discussions with the department concludes this is the appropriate legislative mechanism, it will prepare a draft Order to include in its report.
2.8.9 Once the possibility of an RRO has been identified, and in particular when the Law Commission is drafting an Order to be included in its report, the department should consider the timing of the statutory ministerial consultation. Where the department is likely to accept most or all of the Commission's recommendations, it may be appropriate to draft and publish the ministerial consultation in parallel with the Commission's report. This will help reduce the time needed between publication of the report and laying the RRO. Also, because the Commission always consults widely on its proposals, it may be possible to keep the ministerial consultation document relatively short, concentrating on the suitability of the proposals for implementation by RRO, and cross-referring to the Commission's consultation on the policy.
2.8.10 Many Law Commission proposals will still require primary legislation. For example, it will not be possible to use an RRO to implement reforms that deal solely with common law or recently amended statutes. Departments will need to bid for a bill as part of the normal process for planning the legislative programme.
2.8.11 The Chair of the Cabinet Committee on the Legislative Programme (LP) normally seeks bids from Cabinet colleagues for places in the Government's main legislative programme for forthcoming Parliamentary sessions at least one year in advance. Bids for 'handout' bills (short uncontroversial measures which can be offered for use by private members) are also sought around six months before the start of each session. To inform these bidding rounds, a list of all outstanding Law Commission bills will be circulated to departments. [Endnote 15] Departments should ensure that ministers consider the bills for which they have lead responsibility alongside their other legislative priorities.
2.8.12 Departments other than those with lead responsibility are also invited to consider whether any outstanding Law Commission proposals could be included within the scope of bills for which they intend to bid. As Commission proposals tend to be relatively uncontroversial, their inclusion in a wider bill will often not add much in terms of additional debate or other workload and handling issues.
2.8.13 In bidding for a slot for a Law Commission bill, departments will be able to stress the benefits of the proposed reforms identified through the impact assessment process described in section 2.6. [Endnote 16] They can also point to the advantages that many Law Commission bills enjoy in terms of the two main constraints on space in the legislative programme.
2.8.14 The pro-forma used by LP Committee has been amended to allow departments to indicate whether a bill implements Law Commission proposals. This will ensure that the Parliamentary business managers, when planning the Parliamentary programme, are aware of the scope for taking advantage of these accelerated procedures.
2.8.15 Departments should also consider whether a bill should be offered for pre-legislative scrutiny. The availability of a draft bill in a Law Commission report will often enable earlier submission. Pre-legislative scrutiny does not guarantee a place in the legislative programme, although in some cases these bills may experience a smoother Parliamentary passage. Further guidance on pre-legislative scrutiny can be found in Chapter 17 of the Cabinet Office's Guide to Legislative Procedures
2.8.16 Finally, departments should consider whether a bill is suitable to start its Parliamentary passage in the Lords. This will often be the case with Law Commission bills which tend not to have a high political profile. This is also helpful to business managers in planning the legislative programme.
Extracts from Proposals for English and Scottish Law Commissions, 1965, Cmnd 2573
Quinquennial Review of the Law Commission, John Halliday, March 2003, paragraph 2.1
In some cases, of course, the department may reject some or all of the Commission's recommendations and legislate in different terms, or decide in the light of the report that 'no change' is the better option. Nor can departments commit to legislate in a particular time scale; timing will depend on depend on the Government' other legislative priorities and the availability of Parliamentary time.
Quinquennial Review of the Law Commission, John Halliday, March 2003, ("the QQR") Recommendation 1
'A body which has a role in the process of national government but is not a government department or part of one and which, accordingly, operates to a greater or lesser extent at arms length from Ministers'; extract from Cabinet Office Guide to Non-Departmental Public Bodies.
"This review welcomes and supports the continuing development of close working relations between the Commission and Government, whilst safeguarding the Commission's independence" Chapter 2, QQR, paragraph 2.13
Recommendation 31 that the Committee should oversee action on the QQR report and review its own terms of reference and procedural guidance to departments. This document is the outcome of that review.
Recommendation 9.
This reflects QQR recommendations 5, 6 and 8, except that a new programme will start every second year (in April) rather than annually. However, progress with the planned programme, including any new projects referred to the Commission and added to the programme, will be reported annually.
QQR recommendation 7.
Quinquennial Review Recommendation 39: "The DCA should continue to fund the Law Commission on behalf of Government as a whole, while also continuing to enable departments to top up the core programme in order to expedite its successful completion".
Better Policy Making: A Guide to Regulatory Impact Assessment. Cabinet Office. The scope for regulatory impact assessments is being extended to include impact on delivery of Government services.
QQR recommendation 26.
As do its proposals for statutory consolidation and repeals, but these enjoy a much accelerated Parliamentary procedure under Standing Order 140.
This will be provided by the Law Commission sponsorship team in the Department for Constitutional Affairs.
The QQR (recommendation 28) specifically urged this.