The Law Commission (of England and Wales) plays an important role in our legal system. Its purpose is to keep the law under review and to recommend reform where it is needed. This involves:
- seeking to ensure that the law is as fair, modern, simple and cost-effective as possible,
- conducting research and consultations in order to make recommendations for reforming the law, and
- developing proposals to consolidate existing law into a more accessible and modern form, and to repeal obsolete laws.
The Law Commission is a statutory body and was created by the Law Commissions Act 1965. Although it is sponsored by the Ministry of Justice, it is an advisory body which is independent of government. Its head must be a judge of either the High Court or the Court of Appeal, and its four other Commissioners must either hold judicial office, have rights of audience in the courts or teach law in a university. The current Chairman is the Right Honourable Lord Justice (Sir David) Lloyd Jones and the four current Commissioners are: Professor Elizabeth Cooke; Stephen Lewis; Professor David Ormerod QC; and Nicholas Paines QC.
The Law Commission is an influential body, and the majority of its recommendations are accepted by government and the law changed accordingly. A protocol governs how government departments and the Law Commission should work together on law reform projects. This protocol is key to ensuring a productive working relationship between the Law Commission and government. A central part of the protocol is the publication of an annual report by the government setting out progress on implementation of Law Commission recommendations, and explaining the reasons why some recommendations have not been taken forward.
Although the law may differ between Wales and England (and increasingly does so since devolution), England and Wales nevertheless share a single system of law. In other words, England and Wales is a single legal jurisdiction. Scotland and Northern Ireland, on the other hand, have their own separate legal jurisdictions and, to reflect this, there is a separate Scottish Law Commission and Law Commission for Northern Ireland.
The Law Commission undertakes law reform work in three different ways. First, from time to time the Law Commission draws up a formal programme of law reform. It consults widely before deciding which areas of law to work on. The Law Commissions Act 1965 requires the Law Commission to submit “programmes for the examination of different branches of the law” to the Lord Chancellor (a senior member of the UK Government and head of the Ministry of Justice) for his approval before undertaking new work. The Law Commission then considers whether the law is in need of reform in those areas, and produces reports containing recommendations and sometimes a draft Bill to effect those recommendations. Secondly, the Law Commission undertakes law reform projects which are referred to it by government Ministers. Where such projects are undertaken, a Memorandum of Understanding is agreed between the Law Commission and the appropriate government department which sets out the broad aims of the reform project, and the key milestones which it will deliver. Finally, the Law Commission undertakes statute law reform work through proposing the repeal of statutes which are no longer of practical utility or through making legislation more accessible by proposing the consolidation of different statutes into one single piece of legislation.
In undertaking all of its work, the Law Commission places significant emphasis on thorough research and extensive consultation with those who have an interest in, or are impacted by, the area of law it is considering for reform. The Law Commission also considers the economic impact of its proposals for reform.
The Law Commission and Wales
The Law Commission’s projects and proposals may relate to matters which are devolved or not devolved. The Wales Act 2014 makes changes to the Law Commissions Act 1965 that reflect the National Assembly for Wales’ powers to make primary legislation for Wales and enables Welsh Ministers to refer projects to the Law Commission, in much the same way as UK government Ministers have already been able to do.
In order to govern such projects, the Welsh Government and the Law Commission may agree a protocol, similar to the one detailed above with the UK Government, to govern the working relationship between the Law Commission and the Welsh Government when the Commission undertakes projects related to matters which are devolved in Wales. The approval of the Lord Chancellor is required for such a protocol.
The change in the law also requires the Welsh Ministers to report annually on how they have dealt with the Law Commission’s proposals insofar as they relate to matters which are devolved in Wales. The Welsh Ministers accordingly need to address any recommendations made by the Law Commission in relation to:
- any matter which would be within the legislative competence of the National Assembly for Wales; and
- any matter in relation to which functions have been devolved to the Welsh Ministers, the First Minister for Wales, the Counsel General or the Assembly Commission.
Under this process, if the Welsh Ministers decide to reject a proposal for law reform made by the Law Commission, they must give reasons for doing so.
Many of the provisions of the Social Services and Well-being (Wales) Act 2014, the Renting Homes (Wales) Bill and the Regulation and Inspection of Social Care (Wales) Bill derive from Law Commission recommendations.