Generating ideas for the Law Commission’s 14th Programme of law reform
- Introduction by Sir Nicholas Green, Chair of the Law Commission of England & Wales.
- The types of projects we undertake
- Building the 14th Programme of Law Reform
- Some possible themes for the 14th Programme
- Some ideas for possible projects
- 13th Programme projects not yet commenced
- Please do get involved
Introduction by Sir Nicholas Green, Chair of the Law Commission of England & Wales
Every few years, in accordance with our statutory obligations, the Law Commission undertakes a public consultation with a view to submitting to the Lord Chancellor a draft Programme of Law Reform. Our 13th Programme was agreed in late 2017 and included 14 projects – which have been supplemented by subsequent additional projects referred by Ministers. Some of the 13th Programme projects have not yet been undertaken and will roll forward. However, given the seismic changes which have occurred in the intervening period we believe the time is right to consult again with a view to agreeing a new 14th Programme.
We recognise that, in addition to our core value of supporting the creation of fair, modern and clear law, we must continue to demonstrate that we are agile, adaptable and swift. The Commission has a role to play in the crucial tasks of helping the country recover from the effects of the COVID‑19 pandemic and in addressing some of the consequences for the law of leaving the EU.
These web pages include details of a number of themes and ideas which we think could feature in the 14th Programme. We would like to hear your views about them. I emphasise that these are only initial ideas. We suggest them to help demonstrate the breadth and scope of the issues the Commission is able to consider. It is important that I emphasise that we are not restricting ourselves to these or related areas and we very much want to hear your new ideas as well as your reaction to our thinking.
This is a period of acute social, technological and political change and I am keen to hear your views about any aspect of the law which you consider is in need of reform.
I am very grateful to you for engaging with us. Please send us your ideas for reform by 31 July 2021.
The Rt Hon Sir Nicholas Green
Chair, Law Commission of England & Wales
The types of project we undertake
Recent projects on hate crime, harmful online communications, weddings and surrogacy demonstrate that we consider high profile areas of the law which will be important for any Government. The fact that we are independent and undertake consultation on a wide scale is a key asset when trying to build consensus on sensitive issues across a broad range of different interests. Given the enormous pressures which operate across Government, we believe the Commission’s approach can be of increased value in helping to deliver these important government priorities.
The Commission has a strong reputation for considering technically complex areas of the law, for example planning law in Wales, electronic signatures or the Sentencing Code. These specialist projects may not always be an immediate priority for Government but will still be recognised as being of great significance for individuals and businesses. As recent circumstances have shown, issues which may once have been seen as low priority can suddenly become important and high-profile. It is therefore vitally important that the Commission retains the capacity to address areas of the law which are not an immediate priority for Government, but which can still offer significant benefits to wider society.
The Commission’s Programmes generally incorporate both specialist law reform projects and projects focusing upon more pressing issues for Government.
Not all legal reform is suitable for the Law Commission. We cannot for example provide solutions to problems where the underlying issues relate to how funding is allocated. We are resolutely non-political and do not get involved in party political issues. Our law reform programme will not include subjects where the relevant considerations are shaped primarily by political judgements (for example, abortion, capital punishment, decriminalisation of drug use) or issues of established Government policy such as taxation. We do not consider problems that relate only to a particular individual’s experience of the law as opposed to a more general problem. We cannot work on issues that arise only in Scotland or Northern Ireland.
Building the 14th Programme of Law Reform
There are many factors affecting whether a suggested project makes it into a programme of law reform. These include whether Government supports the work and whether the Law Commission is the most suitable organisation to undertake it.
The Lord Chancellor must approve any law reform project being included into the 14th Programme.
It is also necessary to obtain Ministerial support from the department with policy responsibility for the relevant area of law. If Government does not intend to see the law reformed, and there is no realistic prospect of any recommendations we make becoming law, then there is no reason for the Law Commission to embark upon a law reform project.
We need to demonstrate the real value and importance of any proposed reforms. Sometimes even that is not enough, and many strong ideas cannot be taken forward, perhaps because of capacity issues or because Government does not support reform in a given area. By way of context, the 13th Programme public consultation received over 1300 responses and approximately 230 individual ideas for law reform. We finally agreed on 14 projects for the Programme.
The Commission applies criteria which have been agreed with the Lord Chancellor. We will consider:
- Impact: The extent to which law reform will impact upon the lives of individuals, on business, on the third sector and on the Government. Benefits derived from law reform can include:
- modernisation, for example supporting and facilitating technological and digital development;
- economic, for example reducing costs or generating funds;
- fairness, for example supporting individual and social justice;
- improving the efficiency and/or simplicity of the law, for example ensuring the law is clearly drafted and coherent to those who need to use it;
- supporting the rule of law, for example ensuring that the law is transparent; and,
- improving access to justice, for example, ensuring procedures do not unnecessarily add to complexity or cost.
- Suitability: Whether an independent, non-political, Law Commission is the most suitable body to conduct a proposed project.
- Opinion: The extent to which proposed law reform is supported by Ministers/Whitehall, the public, key stakeholders, Parliament and senior judiciary.
- Urgency: Whether there are pressing reasons (for example, practical or political) why reform is required. To ensure a manageable programme of work, the Commission seeks a mix of: (a) urgent projects with tight or fixed timeframes and (b) longer-term projects where there is more flexibility over delivery. There has to be a realistic assessment of the time and resource required to undertake the work to the quality expected from the Law Commission.
- Balance: so far as possible the Commission seeks a portfolio of work which takes account of: (a) the statutory requirement to keep all areas of the law under review; (b) the balance of work across Government departments (i.e. different departmental law reform priorities); and (c) the balance of legal skills and expertise available to the Commission.
It is important that the Law Commission’s role in relation to the people of Wales is recognised in any Programme. We have therefore agreed with the Lord Chancellor that, wherever possible, each Law Commission Programme should contain a minimum of one Wales-specific project.
Some possible themes for the 14th Programme
We think that there may be some common themes which run across many potential future law reform projects. These are not, however, exclusive, and we are keen to hear from you whether or not your ideas fall into these categories:
- Emerging technology: The Commission has traditionally been associated with reform of existing laws. But over recent times we have developed real expertise in designing legal frameworks that both anticipate and confront the implications of future technologies, for example automated vehicles and support the digital economy. There will be a growing need in the future for law which reflects developments such as AI and the use of algorithms in decision-making. In all of these areas it is necessary to consider not only the commercial and economic implications but also the need for proper consumer protection.
- Leaving the EU: Now that we have left the European Union, it is essential that we demonstrate to the world that Britain is a great place in which to live, work and invest. Clarity, modernity and accessibility of the law will help secure that position and ensure that legal services are at the forefront of enhancing the UK’s competitiveness. We welcome suggestions for areas in which the law must keep pace if we are to maintain and strengthen our standing internationally, and about areas of retained European law which should be reformed, rather than simply being reabsorbed unchanged into domestic legislation.
- The environment: There is widespread domestic and international interest in promoting reforms to safeguard our environment and this will affect existing legal structures in a myriad of ways. We are keen to hear whether there may be legal barriers which might be restricting the adoption of greener initiatives.
- Legal resilience: The COVID-19 pandemic has highlighted areas of the law which are outdated or which contain weaknesses which could not bear the stresses of emergency conditions. When strong law was required to meet the challenge, it proved wanting because it lacked the flexibility to meet the change of circumstance. Ensuring that the law is resilient enough to cater for exceptional circumstances should be an important aspect of the Commission’s future work.
- Simplification: A founding principle of the Commission is the simplification of law, including through codification or consolidation. Such work has not always been in vogue but its value is increasingly again being understood. For example, the new Sentencing Code, based on the Commission’s recommendations, will save up to £250m over ten years and help avoid sentencing errors. We are interested in hearing about ideas where simplification of the law can bring about real and lasting benefits to individuals or organisations.
Some ideas for possible projects
In addition to these wider themes, we have identified a number of specific potential projects which we think might have merit – available here. We would welcome comments on these project ideas – either argument or evidence supporting them, or reasons why they should not be taken forward. This is an indicative list only of some of our initial thinking; we are not restricting ourselves to these or related areas and want to hear your new ideas as well as your reaction to our thinking.
13th Programme projects not yet commenced
The following projects were included in our 13th Programme but have not yet commenced. They will roll over into the 14th Programme, so we do not require further submissions in support of this work.
- A Modern Framework for Disposing of the Dead
- Administrative Review
- Modernising Trust Law for a Global Britain
- Museum Collections
- Registered Land and Chancel Repair Liability
- Unfair Terms in Residential Leasehold
We also note that our 12th Programme project on Wills, which we agreed with Government to pause in order to prioritise work on Weddings, will recommence as soon as resources allow.
Please do get involved
If you have ideas for law reform and comments on our ideas, please complete and submit the online 14th Programme consultation form.
The consultation closes on 31 July.
If you have any questions, please contact us using email@example.com