Ideas for law reform
The Law Commission has spent some time considering some ideas for potential areas of law reform. We have suggested a number of these ideas below. We emphasise that these are only our initial ideas and we are in no way prioritising these areas over any other which may be suggested as part of the 14th Programme consultation. We have also not tested these ideas widely, including assessing whether they are likely to be supported by the Government. They are intended to give an idea of the breadth and scope of work we may consider. We are, however, keen to hear your thoughts on these suggestions.
If you have comments on these ideas or other ideas for law reform, please visit our consultation, here.
- Arbitration Act 1996 and trust law arbitration
- Automated decision-making
- Commercial Leasehold
- Conflict of laws and emerging technology
- Contempt of Court
- Data sharing and information law
- Deeds and variation of contracts
- Family law
- Home Buying
- Justice in the digital age
- Legal Protection for our Environment
- Ownerless land
- Peer to peer sales
- Product liability and emerging technology
- Review of Appeal Powers in the Criminal Courts
- Technological Advances and Procedural Efficiency in the Criminal Courts
- The Search, Production and Seizure of Electronic Material
- The UK statute book
Arbitration Act 1996 and trust law arbitration
How do we ensure the UK remains at the forefront of dispute resolution?
The Arbitration Act 1996 has been praised for helping to make the UK – and London in particular – a leading destination for commercial arbitrations. However, this year sees the 25th anniversary of the Arbitration Act 1996 which presents a good opportunity to revisit it, particularly as other jurisdictions have enacted more recent reforms. This potential project would review the 1996 Act, and, if necessary, suggest possible amendments. The aim would be to maintain the attractiveness of England and Wales as a “destination” for dispute resolution and the pre-eminence of English Law as a choice of law.
We have previously been told that stakeholders supported the introduction of an express power for a summary judgment-style procedure. We would like to know whether this is still the case.
Stakeholders have also suggested that the scope of a Law Commission review could be widened, potentially considering issues including a power to strike out unmeritorious claims; the procedure for challenging a jurisdiction decision and whether it should be easier to appeal awards; ensuring legal resilience (for example, by allowing for service of notice by email); setting out remedies for delays in the arbitral process; and clarifying the distinction between the enforcement mechanism for Part I awards and NYC awards. We would welcome views on these issues.
Separately, responses to previous programme consultations have made a strong case for the introduction of trust law arbitration, which is not possible under the current law. We are continuing to examine the case for work in this area, which could possibly be taken forward alongside the Commission’s wider trust work, which has yet to be commenced.
Should a legal framework be developed to support the increased automation of public decision-making?
Automated decision-making systems use algorithms – a set of rules or instructions to be followed – in order to assist humans in making decisions. Some are rule-based systems which apply a “decision tree” to model and apply a set of rules. Others involve more sophisticated machine learning, using statistical models and datasets to make ever-better predictions. All such systems aim to save time, reduce cost, and improve the quality and consistency of decisions made, usually, by human users.
Harnessing the potential of technology to improve and modernise public services will be a key challenge in the coming years. In regulating interactions between government and citizens, administrative law focuses on the legality of decisions by officials, rather than the IT systems used in the background. But the relationship between technology and public decision-making is changing. As adoption rates of sophisticated algorithmic platforms in the public sector increase, questions will emerge about the risk of error, bias, transparency and public confidence in outcomes. The public seek assurance that these automated processes are fair and objective. Officials who wish to harness technological developments equally seek legal certainty. Costly reversals in the courts, perhaps months or years down the development cycle, should be avoided. We believe that the 14th Programme offers a timely opportunity to examine what changes to the legal framework are required alongside existing developments in best-practice, data ethics, and best procurement practices.
We therefore welcome views on whether our next Programme of law reform should include a review of the legal framework governing the role of automation in public decision making. We are particularly interested in whether there are particular policy areas – for example social security, or local government – which would benefit from early attention.
Are there areas of commercial landlord and tenant law which create unnecessary restrictions, inefficiencies or costs?
Part 2 of the Landlord and Tenant Act 1954, which provides security of tenure for business tenants, has been criticised as not meeting the needs of businesses. Reform in this area could contribute to regenerating the high street, particularly in the context of COVID recovery. A project could consider the extent to which security continues to perform an important function, as well as (or instead of) considering less radical, but significant technical changes to the existing regime including streamlining of the process by which a tenant can opt out of security.
The Landlord and Tenant (Covenants) Act 1995 causes practical problems in commercially important assignments of leases. In particular, “Authorised Guarantee Agreements” and the effect of anti‑avoidance provisions, that were originally intended to benefit tenants, create problems for intra‑group and other consensual assignments.
We believe there are other areas that could be reviewed. For example, the project might consider the complex terminal dilapidations regime.
Government has announced a review of commercial landlord and tenant legislation, to commence later this year. We will watch that review with interest to see whether and how any Law Commission work might align. In the meantime, we welcome your insights on any problems you have encountered.
Conflict of laws and emerging technology
What are the jurisdictional challenges presented by emerging technologies?
The Law Commission’s recent tech-related projects have identified several conflict of laws issues, such as the problem of determining whether a particular court will have jurisdiction to hear a dispute in relation to a smart contract. With intangible assets and smart contracts having become so common in the “virtual world”, there are inherent difficulties in determining the geographical location of acts, actors, and intangible objects. For example, when a digital asset is hosted on a decentralised, distributed ledger, where is it? And if transferred or misappropriated, where has it moved from, and where has it moved to?
This area of law is presently uncertain, and there is a sense that the international commercial community is waiting for a jurisdiction to grasp the nettle. A lack of clarity in relation to the rules may be inhibiting the uptake of new, and potentially more efficient, technology. The Law Commission could clarify the domestic legal position, and identify situations that may require the development of new rules rather than the analogous extension of existing ones.
We seek consultees’ views on whether the industry would find it useful for the Law Commission to undertake a piece of work in this area. Given the international nature of this area of law, we would need to consider whether recommendations for reform of domestic law would be helpful or appropriate. Alternatively, we could produce a range of options for reform, for discussion and negotiation at an international level.
Contempt of Court
Is there a need for greater clarity in relation to contempt in the face of the court and the law of contempt more widely?
The Law Commission has produced three reports in this area, relating to ‘scandalising the court‘, ‘juror misconduct and internet publications’ and ‘court reporting’. Many of our recommendations in the first two Reports have been implemented. We are waiting to hear from Government on the recommendations we made in the third Report. We consulted on contempt in the face of court but work on this part of the law was suspended in order to take forward other more pressing law reform projects.
There have been several recent high-profile cases on the law of contempt, most notably: Director of the Serious Fraud Office v O’Brien; Attorney General v Yaxley-Lennon; Gubarev v Orbis Business Intelligence Ltd; and, R (Finch) v Surrey. Taken alongside the views of stakeholders with whom we have spoken, we suggest that the time may be right to re-commence our work in this area.
In our earlier work on contempt we identified a lack of clarity surrounding what behaviour counts as a contempt in the face of the court and the fact that it is dealt with differently by different courts. We would need to revisit these preliminary conclusions in light of contemporary developments.
There could also be merit in considering a more general review and codification of the law. Contempt of court is not fully codified in England and Wales. The Contempt of Court Act 1981 modified the way in which the common law relating to strict liability operated, and the Criminal Justice and Courts Act 2015 created new offences relating to juror contempt via amendments to the Juries Act 1974. But there remain inconsistencies in the protection of judicial bodies by the law of contempt: the Upper Tribunal has power to proceed against contempt of it, but the First-tier Tribunal and other tribunals do not. The distinction between “civil” and “criminal” contempt does not correspond to the generally accepted distinction between civil and criminal wrongs; the Victorian Law Reform Commission recently recommended that the distinction between civil and criminal contempt should be abolished. Is the concept of contempt of court, with its overtones of disrespect and affront, the best mechanism for countering disobedience to non-financial orders of courts and tribunals? We have not considered the case for a full review in our previous work and would welcome views from consultees.
Data sharing and information law
Should there be a review of the principles of information sharing between public bodies?
In 2014, we recommended that a law reform project should look into establishing a single framework for data sharing between public bodies and organisations carrying out public functions. We had been told the law was complex and unclear, resulting in both actual and perceived obstacles to desirable sharing of data in the public interest. Since then, the Digital Economy Act 2017 introduced new information sharing provisions to support more efficient and effective digital public services. But there remain many sector-specific gateways on the statute book, and the policy and technological background has moved on significantly.
Information law is now generally governed by a mixture of domestic and retained EU law contained in the Data Protection Act 2018 and the GDPR UK. The Centre for Data Ethics and Innovation (CDEI) in a recent report highlighted the importance of addressing trust and confidence in public sector data processing and sharing. As the Government develops its policy on data strategy, the next few years could prove ripe for law reform in this area. This might focus on harmonising the existing legislation after leaving the European Union. It might be that the law is in need of adaptation to modern demands, for example in relation to non-personal, anonymised, or pseudonymised data, for example. We are keen to hear ideas about this area of the law.
Deeds and variation of contracts
How do we modernise the law of deeds for commercial parties whilst still protecting vulnerable individuals?
Certain documents must be executed as deeds (meaning that they must be signed, witnessed and attested) in order to be valid. Some stakeholders have said that these requirements are outdated and no longer fit for purpose, making them unduly onerous for commercial parties, particularly in the context of the Covid-19 pandemic and lockdown.
A Law Commission review would build on our previous work on electronic execution, assess the current requirements for the execution of deeds (both in electronic form, and on paper) and make proposals for reform. We think that the review should include careful scrutiny of the need to protect vulnerable people signing documents with significant legal consequences. For example, it may be that different proposals should be developed for individuals and commercial bodies.
There should also be examination of the extent to which deeds are currently used by commercial parties to circumvent the need for consideration (which requires that something of value must be provided for a promise), particularly in relation to variation of a contract. The Supreme Court recently noted in Rock Advertising v MWB Business Exchange Centres Ltd that the issue of consideration for variation of a contract was “difficult” and “ripe for re-examination”.
We considered deeds in our 2019 Electronic Execution of Documents report and recommended that the Government should ask the Law Commission to carry out a review of the law of deeds. The Lord Chancellor has said that the Government will ask the Law Commission to undertake this review, although the timing for the project is subject to overall priorities. We seek views from consultees as to the priority we should give this project, and evidence as to any difficulties experienced in executing deeds, particularly in the context of the Covid-19 pandemic.
What areas of family law are in need of reform?
The Commission is currently conducting projects on Surrogacy law and Weddings law. We would like to include a new family law project in our 14th Programme, and invite suggestions from consultees. New work might be related to areas that the Commission has considered in the past or to entirely new aspects of family law.
In identifying whether a family law project is likely to be suitable for the Law Commission, it is important to separate problems that are capable of being solved by detailed legal analysis and addressed by structural changes to the law, from problems with how the law is being applied in practice. Issues relating, for example, to funding and resources, are not suitable for the Law Commission. Likewise, the Government is unlikely to provide the necessary agreement for the Law Commission to work on politically sensitive areas on which it has already taken a policy view.
We are aware of particular concern among some stakeholders around aspects of children law; for example, the extent to which the law effectively gives a voice to children in matters affecting them and supports the rights given to children under article 12 of the United Nations Convention on the Rights of the Child. But we are also interested in issues affecting adults, including the legal consequences of relationship breakdown, and issues affecting particular groups, such as access to information about their origins (for example, for those who are born via assisted conception). Please tell us your ideas.
Is it time to rethink the home buying process?
Buying a home can be one of the most important transactions that a person enters into in their lifetime, but it can also be one of the most stressful. The home buying process can be slow, complex and opaque, and there is the potential for significant upfront costs to be incurred without any guarantee that a sale will proceed.
With around one million residential transactions each year in the UK, improving the way homes are bought, and speeding up that process, has the potential to improve the lives of, and generate savings for, a large number of people and their families. Improvements could also help to bring efficiencies to the housing market, as well as better enabling conveyancers to give accurate and timely advice, and improve their practice and procedures.
Reform of the home buying process was raised with us at the time of our Thirteenth Programme of Law Reform, but, due to Government’s own work in this area, we concluded that the time was not right for the Law Commission to undertake a project. Government’s interest in this area continues. However, we welcome your views on whether the Law Commission might undertake a project in this area during the currency of our Fourteenth Programme of Law Reform.
We also welcome your views on what a project might consider. For example, we could explore the regimes in other jurisdictions and consider whether the buyer-beware principle, which requires each purchaser to investigate title, is the appropriate starting point for home purchases. A project might also examine the role of technology in the home buying process, and whether there are barriers to it transforming processes and procedures, as it has done for other transactions.
We would also welcome views on whether problems in buying homes can be solved by market action, or whether law reform is needed.
Justice in the digital age
What are the key principles underpinning the expansion of digital justice?
The coronavirus pandemic accelerated the use by courts and tribunals of online hearings to deliver justice. Remote participation in court proceedings is likely to be enduring. Recent experience in this and other jurisdictions is likely to inform debates on how online hearings are best conducted, and how they can promote and improve access to justice and effective decision-making. The Law Commision could be well placed to work closely with the Government, HMCTS, the judiciary and others to assist in the process of capturing and embedding the valuable lessons of these times.
Consideration will need to be given to how digital participation in judicial proceedings aligns with long-established legal principles developed for a different age. In order to maintain both public and judicial confidence, it is important that these principles are developed in line with technological advances. Examples might include: principles and rules concerning courts and tribunals procedure; witness handling; access to court information; and protecting the integrity of the judicial process.
We are keen to hear whether there is a place for a project to complement and take stock of these changes. The Law Commission could for instance undertake a deep and comprehensive consultation of all involved to identify all that has worked well and all that has not worked so well and seek to identify specific suggestions for reform.
Other topical issues include whether the presumption that computer-generated evidence is reliable unless proved otherwise should be changed in the light of the damaging findings in the Royal Mail sub-post offices Horizon IT litigation, and whether public bodies should be liable for the other party’s costs where the public body loses in litigation. One of the judges in a Court of Appeal case on the topic last year suggested that there may be merit in the issue being considered by the Law Commission. We would welcome views.
Legal Protection for our Environment
Does the law protect our environment and promote environmental innovation?
The environment will be an area of focus for law reform over the coming years. In some areas, it is a question of removing unjustified legal impediments to achieving environmental policy, including inaccessible, complex or outdated laws. In others, it may be a question of facilitating innovations that will help the nation achieve its climate change commitments. Leaving the EU, meanwhile, required the transposition, through complex retained EU law statutory instruments, of thousands of pages of rules governing our terrestrial and marine environment and wildlife.
We are keen to hear ideas about this area of the law more generally and, below, tentatively suggest three possible areas which may be worth exploring further.
Clear and accessible law is important in ensuring that people understand and comply with their obligations and, where they do not, effective enforcement action can be taken by public agencies. Excessive detail and complexity can blur the message; a possible example of this is the law on protected area designations. Protected areas provide value by preserving heritage and protecting biodiversity and are also important sources of carbon sequestration, so there is value in having legal designations which signal their importance. But the law on protected areas currently uses eight different statutorily protected designations, as well as four international designations and three non-statutory designations (some of which have statutory protection). This creates what was described to us as a “blizzard of acronyms”, and means that different rules apply to permitted activities on sites depending on their designation.
Our current work on Coal Tip Safety in Wales includes protecting against the effect of extreme weather conditions. Our work in this area is already highlighting areas where the law lacks modern tools to deal sensibly and proportionately with the risk to the public. One example is the law governing arrangements for determining responsibility for surface water and drainage, which involves a complex and overlapping mixture of public and private landowners, regulators and public authorities.
Finally, we are interested in the ways in which property law might be failing to develop so as to support environmental efforts, or might actively be hampering them. We have heard that private land law obligations might be forcing property owners to take steps which are not in the wider environmental interest, for example, in relation to coastal erosion. Particularly in relation to the built environment, we have been told that landlord and tenant law may be standing in the way of using property in the most environmentally efficient manner. And while “conservation covenants” are now being introduced based on Law Commission recommendations, we are aware that there be other areas in which new property law tools are required to achieve environmental objectives.
We would welcome views on the above suggestions but also seek other ideas about how the law can best protect and promote our natural environment.
Can land that has passed to the Crown because it has no owner be more effectively managed?
When land becomes ownerless due to the death of a former owner who has nobody to inherit the land, or on the dissolution of a company, it can vest in the Crown. Lawyers call that land “bona vacantia”. Land can also revert to the Crown through escheat – a process that occurs when a freehold in land is extinguished, often due to it being disclaimed during insolvency proceedings.
We have been told of uncertainties about the extent to which the Crown may incur any liability for ownerless land. In many cases, liability is thought to depend on whether the Crown takes possession or performs an act of control. But it is unclear what constitutes an act of control. Consequently, the Crown’s agents can be reluctant to participate even in uncontentious proceedings relating to the land. There are also uncertainties about which interests in land may survive escheat, and whether they will bind a new freehold in the land granted by the Crown. Where land becomes ownerless, it can impact on neighbours and others who may have an interest in a property. A review of ownerless land could clarify both the Crown’s liability and the survival of interests affecting the land, improving the position for all those affected.
A project might also include a review of the powers of local authorities to carry out necessary works on ownerless land where it is contaminated, or contains dangerous structures.
Peer to peer sales
How can the law best protect individuals entering online marketplaces?
Transactions between individuals – known as peer to peer sales – have become increasingly common with the growth of online marketplaces such as eBay, Facebook Marketplace, Etsy, Amazon Marketplace and even through Instagram. These are websites or software-based applications on which individuals can buy goods and sell goods. Online marketplaces are popular: Which? estimates that 90% of UK adult consumers have purchased goods on an online marketplace.
Although, in many cases, both the individual buyer and the individual seller in a peer to peer transaction will be acting as “consumers” in the eyes of the law, the Consumer Rights Act 2015 is silent about these types of sales. These transactions are instead governed by other legislation, principally the Sale of Goods Act 1979. That legislation was drafted primarily for business to business transactions in the pre-internet era and provides the consumer buyer with very limited rights.
The law appears to be unclear (for example, as to when an individual will be treated as a “trader” under the Consumer Rights Act 2015) and appears to provide limited protection to a consumer in a peer to peer sale. While the platforms themselves often provide dispute resolution mechanisms, these are not a replacement for appropriate legal rules. We think that there may be a case for the Law Commission to undertake a project in this area. Do you agree? Have you been affected or suffered loss in a transaction on an online marketplace?
Product liability and emerging technology
Should the strict liability product regime be extended to cover all software and other tech developments?
We are increasingly relying on technology in our daily lives: from smartphones to MedTech; automated vehicles to 3D printing. Such developments in our homes and in our lives have the potential to provide huge benefits and transform how we live and work. However, there is also a need for robust legislation to support such developments: what happens when defective technology causes injury to an individual or their property?
The Consumer Protection Act 1987 protects consumers against harm caused by defective “products”, but it was not designed to accommodate software and related technological developments such as 3D printing or machines that “learn”. Gaps in this regime may leave injured consumers without adequate protection, and manufacturers and insurers uncertain as to their liabilities. For example, it appears that software will not amount to a “product” unless it is supplied to the consumer in a tangible form (for example, on a USB). A consumer harmed by defective software supplied electronically (for example, online) is unlikely to have a statutory (and therefore strict) product liability claim. Some of those we have spoken to have said that this distinction is arguably unprincipled and unfair to consumers and should be reviewed.
We think that the Law Commission could consider the current statutory product liability regime and make proposals, where necessary, to ensure that consumers are adequately protected in relation to software and related technological developments. We welcome your views as to whether there is a need for review and reform of the law in this area.
Review of Appeal Powers in the Criminal Courts
How could we improve the coherence of criminal appeal rights and powers?
We have previously raised the possibility of undertaking a review of the Court of Appeal (Criminal Division)’s (CACD) powers. After speaking again to stakeholders, we continue to believe that a project examining criminal appeals has significant merit.
The primary focus of this project would be a range of potential technical reforms to solve the problems which have been generated by incremental legislative change to the CACD’s powers over decades.
The project would aim to ensure that the powers of the CACD to guarantee public protection are adequate and that the CACD has appropriate powers to deal with offenders in accordance with the will of Parliament. Finally, the project would consider procedural reforms to appeals, which could result in financial savings and improved efficiency.
In addition, there is scope to consider a wider review of the myriad appeal rights spread across legislation outside of the Criminal Appeal Act 1968 and the merits of rationalisation. There is also the potential to explore reforms to the tests governing appeals against conviction and sentence (both by the defendant and by the Attorney General under the unduly lenient sentence scheme), and the legislation governing referrals between the CACD and the Criminal Cases Review Commission (CCRC), the latter having been recommended by the Westminster Commission into Miscarriages of Justice and supported by the CCRC. Stakeholders have also suggested that this project might usefully extend to consideration of the Crown Court’s exercise of its appellate capacity.
Any project could be focused fundamentally on uncontroversial, technical law reform, or it could extend into more substantive matters. In either case it could generate much needed efficiencies within the criminal courts, which could in turn help to reduce backlog, and produce substantial savings. We welcome views on the value of such reform and the scope of any potential project.
Technological Advances and Procedural Efficiency in the Criminal Courts
Has the criminal law kept pace with technological change?
This project would assess how well the criminal courts are keeping pace with advances in technology and seek to ensure that the law allows efficient and effective use of the opportunities new technology offers. In tandem it would seek to resolve technical glitches in the law which are themselves causes of inefficiency.
The rapid acceleration of the transition to the remote delivery of justice is discussed elsewhere. Although many of the same issues will arise in the civil and criminal jurisdictions, there will be particular, and particularly acute concerns in the criminal courts which may require separate attention. By way of example, stakeholders argue that the way in which witness evidence is adduced has not kept pace with modern technology and is neither the fairest nor the most effective way of conducting trials. The project could therefore examine whether pre-recorded evidence in chief should be more widely used, including recording of witness statements by police officers using body-worn cameras.
It is important to note that while this project would seek to improve the efficient administration of criminal justice, it would also be informed by the need to ensure that the rights of those involved in hearings, and the rule of law, are properly protected.
We would value consultees’ views on the issues we raise here, and any other issues they are aware of either in how technology is currently deployed in the courts, opportunities that are being missed, and inefficient practice in need of a legislative fix.
The Search, Production and Seizure of Electronic Material
Does the law cater for the increasing role electronic evidence plays in criminal investigations and prosecutions?
The Law Commission has a history of working to address the legal implications of new and emerging technology. Our recently completed project on search warrants noted that electronic evidence and materials are increasingly important in criminal investigations and prosecutions. We made recommendations specifically relating to electronic material and search warrants in that report. The Government is currently considering these recommendations and we expect to hear back from them in due course. We also noted that the laws currently governing the search, production and seizure of electronic material are not fit for purpose.
It is unclear whether law enforcement agencies have the powers necessary to investigate crime and obtain evidence, especially where overseas, and whether adequate safeguards apply to ensure the use of powers is appropriate.
In our view a number of topics merit further examination, which could be done by way of a distinct project. First, the desirability of powers to search electronic devices not contingent on premises, or to search electronic data directly. Second, the operations of sections 19(4) and 20(1) of the Police and Criminal Evidence Act 1984, which permit a constable to require electronic data accessible from premises to be produced. Third, to consider whether further work is required on the regulation of data extraction devices to build on the consensual extraction of data from complainants’, witnesses’ and others’ devices which is currently before Parliament in the Police, Crime, Sentencing and Courts Bill.
The project would consider how the law governing the acquisition and treatment of electronic material in criminal investigations could be updated and simplified. Whether this is done via recalibration of the existing legal framework or by way of new powers and protections could be explored in detail through engagement with key stakeholders.
The UK statute book
How best to enhance clarity and coherence?
European and UK law have coexisted since 1973, but the process of leaving the EU has required a great deal of EU law to be brought into the UK legal system. Although some modifications have been made to EU law as part of this process, several stakeholders have already told us that more work is needed. Mismatches between retained EU law and domestic law and unnecessary structural complexity in the newly combined provisions could have damaging practical consequences. There are dangers for the accessibility and transparency of the law, plus a risk of business uncertainty and litigation. Mismatches could be the result of longstanding tensions between EU and UK concepts or legal approaches; or they may have been caused by the process of adding a vast amount of material to UK law in a relatively short period.
Now the UK has control of all the relevant legislation, there are opportunities to bring greater coherence to the areas of domestic legislation most affected by leaving the EU. We recognise that individual government departments will already have identified specific high priority areas in need of reform. The Law Commision could consider an overarching project to investigate areas where legislative repair has the potential to bring the greatest benefits, working closely with the Office of Parliamentary Counsel and the Government Legal Department. It may be that such work would identify, thematically, priority areas of the law in need of rationalisation, which in turn would help lay a firm platform for future development of the law. Alternatively there could be specific areas of retained EU law which can already be identified as being in need of reform.