Lucky 13 for the Law Commission
Author: Peter Williams
Applies to: England, Wales and Scotland
The Law Commission has issued a consultation asking for suggestions for projects for its 13th programme, covering the period from 2017 to 2020.
The Law Commission is an independent body set up by the Law Commissions Act 1965. One of its principal purposes is to carry out law reform projects with the aim of making the law fair, simple, clear and cost-effective. It makes proposals to the government, many of which have been enacted in recent times. The Land Registration Act 2002, for example, was the result of a Law Commission project.
On 14 July 2016 the Law Commission issued a consultation calling for suggestions for reform of laws or areas of law that are:
- causing substantial unfairness;
- widely discriminatory or disproportionately costly; or
- caused by laws or policies that are complex, hard to understand or have fallen out of step with modern standards.
However, the Law Commission's resources are limited, and it cannot take on every project that is suggested. First of all, it looks at how important reform is in that particular area, and the potential benefits of reform. It also considers whether the Law Commission is the most suitable body to conduct the project and whether it has the necessary resources available for the reform project.
Even then, before it can include a project in its programme, its protocol with government also requires it to have confirmation from the relevant government department that it has a 'serious intention' to take forward law reform. The government has never been busier, now that it has to prepare for Brexit, and in these post-referendum, pre-Brexit days there must be a fear that some worthwhile law reform projects might lose momentum, or indeed never get started in the first place.
Suggestions from the Law Commission
Shoosmiths will be submitting its own suggestions for law reform projects, one of which will be the Landlord and Tenant (Covenants) Act 1995. Recent cases have shown that the extremely wide anti-avoidance provision in that statute is being interpreted by the courts in a manner that is preventing some transactions taking place and requiring others to be restructured. It would be helpful for the Law Commission to consider alternative ways of achieving the purpose of the anti-avoidance provision.
The Law Commission has also put forward a number of its own suggestions for projects that it might undertake, should there be enough popular support. Among these are the following:
- Banks' duties to customers - should banks' duties to customers be reviewed and restated to make them more effective?
- Confiscation - the law on the confiscation of proceeds of criminal conduct is notorious for being difficult to apply and enforce. Could it be made simpler and more effective?
- Leasehold law - are there areas of the law which impose unnecessary restrictions, inefficiencies or costs?
- Legislative standards for Wales - should Welsh legislation be subject to new objective legislative standards?
- Surrogacy - is the law keeping pace with social change?
- Weddings - should the Marriage Act 1949 be reformed to provide greater choice for couples within a simpler legislative structure?
The consultation period lasts for over three months, ending on 31 October 2016. Should you wish to respond, please speak to your contact at Shoosmiths or respond directly to the Law Commission.
You can download the Law Commission's questionnaire to use for your response from this page of the Law Commission's website.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.