1. The Law Commission (like the Scottish Law Commission in relation to Scottish law) was set up by the Law Commissions Act 1965. Its statutory duty is to keep under review the law of England and Wales with a view to its systematic development and reform. The principal work of the Law Commission is producing recommendations for the reform of the law, and its recommendations are contained in reports which are laid before Parliament.

  2. Law reform is the process by which the law is kept up to date and injustices removed. Law reform plays an essential part in good democratic government. It is contrary to the public interest that law reform should be delayed longer than is absolutely necessary to ensure that the reforms are properly considered.

THE NEED TO CHANGE PARLIAMENTARY PROCEDURES FOR CONSIDERING LEGISLATION BASED ON LAW COMMISSION RECOMMENDATIONS

  3. Over the years Parliament has implemented many Law Commission reports in whole or part. The Law Commission is extremely grateful for this. However, two problems are evident. First, in many cases there has been a considerable delay between acceptance of the report by Government and the introduction of legislation to implement it. The reason for this is often said to be the lack of Parliamentary time. Second, there is a separate problem in that there is often a considerable period of time between the date of the Law Commission's report and the date of the Government's response. This submission is directed to the first of these problems. The Law Commission submits that Parliamentary procedure should be such as to permit legislation designed to implement (in whole or part) recommendations of the Law Commission for reform of the law to be considered without undue delay.

THE BACKLOG OF UNIMPLEMENTED LAW COMMISSION REPORTS

  4. The Law Commission's Annual Report for 1996 (Appendix C - attached)[39] shows that since 1981 the Law Commission has produced 19 reports which still await implementation. This includes five reports which had been expressly accepted by the then Government subject to Parliamentary time being available. These, in turn, include three reports dated 1981, 1984 and 1989, which were accepted by Government in March 1985, July 1991 and July 1994 respectively. In the last Session, some of the Law Commission reports implemented (in whole or part) by legislation were accepted as long ago as 1991. It can thus be seen that, even when Law Commission reports are accepted by Government, their implementation is often delayed for a considerable period of time. Subsequent events may delay implementation, but one of the reasons often given for delay is the bottleneck in Parliament.

TIME TAKEN ON THE FLOOR OF THE HOUSE TO CONSIDER LAW COMMISSION BILLS IN THE PAST

  5. There is in some places a misconception that Law Commission bills absorb large amounts of time on the floor of the House. In fact this is generally not so. A Law Commission study in 1994 showed that the 15 smaller Law Commission bills in the 10 years from 1984-85 took an average of only 1 hour 11 minutes on the floor of the House of Commons. (Four larger Government bills also implemented Law Commission recommendations and took longer, but those recommendations formed only part of the whole). In 1994-95, 1995-96 and 1996- 97 there were a total of 12 bills which were passed to implement the Commission's recommendations. Leaving aside the Family Law Act 1996, these bills took only 24 hours together in both Houses (an average of 23 minutes per bill on the floor of the House of Commons) and this includes time spent on provisions not resulting from the Commission's work. The Family Law Act 1996, which was based on two Law Commission reports, took longer but this was exceptional.

THE LAW COMMISSION'S WORKING METHOD

  6. The Law Commission's recommendations are the subject of extensive consultation before they are included in a final report. The Law Commission starts a law reform project by investigating the law and the deficiencies in it. This involves informal pre-consultation with Government departments and users of the law in question. Then the Commission issues a consultation paper summarising the present law, its defects, the relevant law of other jurisdictions, some options for reform and the Commission's own provisional recommendations. The paper is published by The Stationery Office and copies are sent to representatives of users and other persons thought likely to be interested to respond (including the judiciary, practising lawyers, academics, Government bodies and professional organisations). The responses to the consultation are analysed and a final report published, accompanied by a draft bill prepared by Parliamentary Counsel attached to the Commission. The Law Commission does not undertake formal consultation on its final report, but its final recommendations are based on the options put forward in the consultation document. From start to finish the entire process may take three or more years.

  7. Since the recommendations for reform will have been the subject of extensive scrutiny before legislative proposals are introduced into Parliament, bills based on Law Commission recommendations are in general, in the Law Commission's submission, appropriate for some streamlined Parliamentary procedure.

RECENT CHANGES IN PARLIAMENTARY PROCEDURE

  8. Some progress has been made in this regard. HC Standing Order 59 now provides for any public bill, the main purpose of which is to give effect to proposals contained in a Law Commission report, to be referred automatically to a second reading committee unless the House otherwise orders. In the Lords, the new Special Public Bill Committee procedure (the Jellicoe procedure) has been used on two occasions to effect scrutiny of Law Commission bills, but this procedure was not used in 1996. This procedure enables the House to receive evidence from experts.

  9. However, the backlog remains and moreover these changes do not offer a radical solution. There is still often a concern by business managers that bills based on Law Commission recommendations might prove controversial and require more time on the floor of the House than is available.

PREVIOUS SUGGESTIONS FOR REFORM OF PROCEDURE

  10. On two occasions, the special standing committee procedure has been used in the House of Commons for Law Commission bills, and the House of Commons Select Committee on Procedure has expressed the view that the procedure might be suitable for bills which are controversial but not in the party political sense (1984- 85 HC 49, memorandum paragraph 28). However the procedure has not been used since 1983-84. The report of the Hansard Society Commission on the Legislative Process (the Rippon Commission) recommended that unless they actually disagree with the proposals, Governments should normally give time for consideration and passage of all Law Commission bills (paragraph 499). The Report anticipated that Law Commission bills would be considered by special standing committees in the House of Lords and expressed the view that if the bill was uncontroversial there would be no need for further evidence to be taken in the House of Commons. The report considered that any suggestion of short-cutting in the House of Commons would be resisted (paragraph 500). Accordingly there was no recommendation in that report for Law Commission bills to be considered by committees of the House of Commons. It was considered that in general the Government might be able to rely on timetabling if the bill was controversial.

  11. In our Annual Report for 1994, we suggested that bills to implement Law Commission recommendations, which had been cleared for the Jellicoe procedure, should survive at the end of a session and remain live for a period of 12 months from the date of introduction.

ISSUES FOR CONSIDERATION

  12. The Law Commission is an independent statutory body whose principal function is to make recommendations for law reform. Its recommendations are carefully considered, and it undertakes extensive and public consultation. In those circumstances (as stated in paragraph 3 above) the Law Commission submits that Parliamentary procedure should be such as to permit legislation designed to implement (in whole or part) recommendations of the Law Commission for reform of the law to be considered without undue delay. In addition, the Law Commission submits that consideration needs to be given to the question of whether, and if so how, complex questions of law reform, which often involve questions of policy, can be dealt with off the floor of the House should they require detailed scrutiny by Parliament. There are areas in the law where major reforms are needed, such as criminal law, but the prospects for achieving these with the present pressures on Parliamentary time are very low indeed unless Parliamentary procedures are suitably modernised.

June 1997