The Law Commission

PART III

IMPLEMENTATION OF LAW COMMISSION REPORTS

INTRODUCTION

3.1     Most of the Commission's law reform reports include recommendations for changing the law. The most frequent method of implementing those recommendations is by Act of Parliament, if the Government and Parliament accept the recommendations. 

However, a small but significant number of our reports

Do not call for legislation at all, for example because they do not recommend any change in the law or because they are intended as advice or guidance rather than as vehicles for law reform;

Are in effect implemented by the courts;

Could possibly be implemented by Statutory Instrument; or

Are scoping studies.

This Part sets out the position on implementation,^[1] referring first to action taken during April 2003 to March 2004 inclusive and then to the overall position.

ACTION DURING THIS PERIOD

Summary

3.2     At the end of March 2003: 

(a) Legislation had yet to be introduced in respect of seventeen of our reports which had been accepted by the Government, in full or in part, and

(b) Thirteen other reports still awaited decisions by the Government.

3.3     By the end of March 2004: 

(a) Seven of our law reform reports had been enacted in Parliament;

(b) The number of law reform reports that had been accepted by the Government and were still awaiting implementation stood at seventeen.

(c) Thirteen other reports of ours awaited decisions by the Government.

(A) IMPLEMENTATION

Double Jeopardy and Prosecution Appeals

3.4     In March 2001 we published a report on both these issues.^[2] They arose from separate references^[3] from the Home Secretary but, for convenience, we published a single report. In relation to double jeopardy our recommendation was that it ought to be possible for there to be a retrial in cases of murder where there was reliable and compelling new evidence. With regard to prosecution appeals we recommended that the prosecution should be able to appeal against an acquittal which results either directly from any ruling made by a judge at any stage prior to the conclusion of the prosecution case or from a ruling at the close of the prosecution's case that there is no evidence of the alleged offence.^[4] The Criminal Justice Act 2003 contains provisions on both double jeopardy and prosecution appeals which substantially reproduce the schemes of our recommendations, although the legislation on each goes beyond what we had recommended. 

Hearsay in Criminal Proceedings

3.5     In 1997 we published a report and draft Bill in which we made recommendations for the reform of the law governing the admissibility of hearsay evidence in criminal proceedings.^[5] In essence we recommended that there should be three separate categories of automatic admissibility – unavailability of defendants, reliable hearsay and admissions/confessions. In addition, we recommended that there should be a limited inclusionary discretion to admit hearsay where the court is satisfied that, despite the difficulties in challenging the statement, its probative value is such that the interests of justice require it to be admissible. One of our recommendations (the repeal of section 69 of the Police and Criminal Evidence Act 1984, relating to evidence generated by computers) was implemented by section 60 of the Youth Justice and Criminal Evidence Act 1999. The substance of the remainder of our recommendations has been effected by the Criminal Justice Act 2003. 

Evidence of Bad Character in Criminal Proceedings

3.6     In October 2001 we published a report and draft Bill on the admissibility in criminal proceedings of evidence of bad character, including previous convictions.^[6] 
3.7     We recommended that, with certain exceptions, evidence of the bad character of any person should only be admissible with the leave of the court, and that such leave should only be granted in certain defined circumstances. In the case of a defendant's bad character, we recommended that the court should normally^[7] grant leave only if it is satisfied that the interests of justice required the evidence to be admitted notwithstanding any risk of prejudice. The relevant provisions in the Criminal Justice Act 2003 reproduce our recommendations in relation to persons other than the defendant. With regard to the latter, the Act in some important respects differs from and goes further than our recommendations. 

Bail and the Human Rights Act 1998

3.8     In June 2001 we published a report on this topic.^[8] Our primary object was not to reform the existing legislation but to determine whether it can be applied in a way which is compatible with the European Convention on Human Rights. We concluded that it can, although we suggested ways in which it might be clarified so as to minimise the risk of the Convention being infringed. 
3.9     We made three recommendations all of which related to amending specific provisions of the Bail Act 1976. The Criminal Justice Act 2003 implements the thrust of those recommendations. 

Execution of Deeds and Documents

3.10     Our report, published in 1998, aimed to simplify the formal requirements for deeds and company documents. In July 1999 the Government announced that it accepted our recommendations. In September 2002 it issued a consultation paper which suggested implementing the recommendations through a Regulatory Reform Order.^[9] In January 2004 it published an analysis of responses, which showed that most respondents welcomed our proposals.^[10] A draft Regulatory Reform Order is being prepared for presentation to the relevant scrutiny committee. 

Business Tenancies

3.11     A Regulatory Reform Order^[11] was made on 1 December 2003 and will come into effect on 1 June 2004. The Order implements a package of reforms based substantially on our report^[12] and amends the provisions of Part II of the Landlord and Tenant Act 1954. 

(B) GOVERNMENT DECISIONS ON OUR REPORTS

The Effective Prosecution of Multiple Offending

3.12     In October 2002 we published a report on this topic.^[13] We recommended that in cases of those who commit multiple offences there should be a two stage trial procedure. The first stage of the trial will take place before judge and jury in the normal way, on an indictment containing specimen counts. In the event of conviction on one or more counts, the second stage of the trial may follow, in which the defendant would be tried by judge alone in respect of any scheduled offences linked to a specimen count of which the defendant has been convicted. 
3.13     The Government accepted the recommendations in our report and they are reflected in clauses of the Domestic Violence, Crime and Victims Bill which is currently before Parliament. 

Non-accidental Death of or Serious Injury to Children

3.14     In September 2003 we published a report and draft Bill^[14] which we refer to in Part V of this Report.^[15] The Domestic Violence, Crime and Victims Bill incorporates a scheme for addressing the problem which we addressed. The Government's proposed scheme adopts a number of the key features and concepts contained in our recommendations but is different in its structure, extent and effect. 

Third Parties' Rights against Insurers

3.15     Our report, conducted jointly with the Scottish Law Commission, was published in July 2001. It was designed to strengthen the rights of claimants to seek a remedy against their defendant's insurer where the defendant was in financial difficulties. In July 2002 the Government accepted our recommendations in principle. Then in September 2002 it issued a consultation paper stating that it intended to implement our report by way of Regulatory Reform Order (RRO).^[16] In February 2004 it published an analysis of responses, in which it reported that the Law Officers had advised that only certain recommendations could be carried out by way of an RRO. The others do not fall within the scope of the Regulatory Reform Act 2001.^[17] 
3.16     As a result, some of our recommendations will be implemented by RRO. These will simplify the procedural hurdles, so that a claimant need only issue one set of proceedings. Claimants will not be required to restore a defendant company to the register so that it can be sued in its own name before the insurer is involved. Claimants will also be granted improved rights to obtain information about the defendant's insurance policy. However, other proposals will require primary legislation. These include widening the list of situations where an insurer may be pursued directly, and removing insurers' ability to rely on certain technical defences. The Government has said that these will be implemented "when an opportunity arises". 

(C) CURRENT POSITION OF SOME OF OUR REPORTS AWAITING IMPLEMENTATION

Offences against the Person

3.17     It was eleven years ago that we published our report^[18] and draft Bill recommending an extremely important overhaul of the current legislation, which dates back to 1861. In 1998 the Home Office published a consultation paper ("Violence: Reforming the Offences against the Person Act 1861") setting out their initial proposals for reforming the law in this area, based on our report. More recently the Court of Appeal has referred to the "need for radical reform" of section 20 of the 1861 Act.^[19] We continue to press for implementation. 

Involuntary Manslaughter

3.18     In 1996 we published a report and draft Bill on Involuntary Manslaughter^[20] in which we recommended the replacement of the common law offence with statutory offences of "reckless killing" and "killing by gross recklessness", together with a new offence of corporate killing. We regard this as of considerable importance. In the past ten years, despite the fact that over 3000 workers and 1000 members of the public have died, very few companies have been prosecuted for corporate manslaughter and the majority of prosecutions have been successful. We are pleased to note that the Government has announced its intention to legislate on corporate manslaughter. 

Corruption Offences

3.19     In 1998 we published a report^[21] and draft Bill in which we recommended the creation of four new offences to replace those in the Prevention of Corruption Acts 1889-1916. In March 2003 the Government published its own draft Bill (Cm 5777) which included giving broad effect to our recommendations. Subsequently the Bill was scrutinised by a House of Lords and House of Commons Joint Committee. The Joint Committee was critical of a number of aspects of the Bill and invited the Home Office to bring forward a revised Bill taking account of the criticisms advanced by the Joint Committee. 
3.20     In December 2003 the Government published a reply to the critique of the Joint Committee. It stated that it was unable to agree with the view of the Joint Committee as to the definition of "corruption" but that it would take into account some of the Joint Committee's other recommendations. 

Fraud

3.21     In July 2002 we published a report and draft Bill on the law of Fraud.^[22] It recommended the introduction of a single general offence of fraud. We believe that this offence would make the law more comprehensible to juries, especially in serious fraud trials, and provide a useful tool for the effective prosecution of fraud. The single, clearly defined, offence would replace the current patchwork of offences. 
3.22     We also recommended an offence of obtaining services dishonestly. This is intended to be a "theft-like" offence which would make it unlawful to "steal" services by simply helping oneself to them. It would not require proof of deception or fraud. 
3.23     After the period covered by this report the Government issued a consultation paper in which it sought views on legislation to reform the law of fraud in accordance with our recommendations. 

Limitation of Actions

3.24     In 2001 we published a report and draft Bill on Limitation of Actions, in which we recommended replacing the many complex rules with a single "core regime". Most claimants would have three years to bring an action, starting with when they knew, or ought reasonably to have known, the relevant facts. Except in personal injury claims, defendants would be protected by a "long stop", preventing claims brought more than 10 years after the relevant events took place. The Court of Appeal recently commended our proposals, commenting that "early statutory implementation of it would obviate much arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit".^[23] 
3.25     In July 2002 the Government accepted our recommendations in principle, saying it "would give further consideration to some aspects of the report, with a view to introducing legislation when an opportunity arises".^[24] We receive many enquiries about whether there has been any more progress on implementing this report. Unfortunately, we have heard nothing further. The position remains as it did in 2002. 

Damages for Personal Injury

3.26     During the late 1990s we carried out a major review of damages, which resulted in reports on Liability for Psychiatric Illness,^[25] Damages for Non-Pecuniary Loss,^[26] Damages for Medical, Nursing and Other Expenses^[27] and Claims for Wrongful Death.^[28] 
3.27     Some of our recommendations have been implemented. Most notably, in February 2000, the Court of Appeal increased the level of awards for non-pecuniary loss in cases of severe injury.^[29] In April 2002, the Government increased the level of bereavement damages from £7,500 to £10,000. The Government has also made provision to extend the recovery of National Health Service costs from road traffic accidents to all personal injury claims.^[30] 
3.28     However, many recommendations await a decision on implementation. In November 1999, the Government announced that it had carefully considered our reports and would undertake a comprehensive assessment of their individual and aggregate effects. We understand that this work is nearing completion, and that the Government intends to consult further on the issue. 

Aggravated, Exemplary and Restitutionary Damages

3.29     We published a report on this in 1997.^[31] In November 1999 the Government said that it accepted our recommendations on aggravated and restitutionary damages and would legislate when a suitable opportunity arose. In practice, such an opportunity is unlikely to arise before a decision is taken on our other damages reports, discussed above. Meanwhile, the Government rejected our recommendations to extend the availability of exemplary damages, in the absence of a clear consensus on whether they should be extended or abolished. However, as we reported last year, the House of Lords' decision in Kuddus v Chief Constable of Leicestershire goes some way towards implementing our recommendations, by widening the types of action where exemplary damages are available.^[32] 

Company Law

3.30     We have published reports on Directors' Duties^[33] and Shareholder Remedies.^[34] Both were endorsed by the Company Law Review Steering Group.^[35] In its 2002 White Paper the Government broadly accepted our proposals on directors' duties.^[36] Although the White Paper did not specifically mention shareholder remedies we remain hopeful that these will form part of any comprehensive review of company law. 
3.31     In July 2003 the Government announced that its plans for reforming company law would be implemented in two stages. Early legislation would concentrate on preventing major corporate failures. Meanwhile a second Bill on more comprehensive company law reform would be postponed until later. We anticipate that our reports would be implemented as part of the second stage. 

Mental Incapacity

3.32     We published our report and draft Bill on this topic in 1995.^[37] The Government published a Green Paper^[38] in 1997 and a statement of its plans to reform this area of the law in 1999. ^[39] This statement accepted the majority of, but not all, our recommendations. 
3.33     The Government published a draft Mental Incapacity Bill in June 2003. A pre-legislative Joint Scrutiny Committee considered details of the Bill and reported in November 2003. The Government published its response in February 2004. The Bill will be introduced in the current Parliamentary Session. 

Perpetuities and Accumulations

3.34     The Government announced its acceptance of our report^[40] in answer to a parliamentary question in March 2001. Since then, attempts to implement the report in part by way of a regulatory reform order and Private Member's Handout Bill have been unsuccessful. The Department for Constitutional Affairs, with assistance from the Law Commission, is working towards introducing a Bill when Parliamentary time allows. 

Distress for Rent

3.35     We published our report on this subject in 1991.^[41] It recommended the abolition of distress for unpaid rent for both commercial and residential leases. 
3.36     Following a consultation exercise by the Lord Chancellor's Department (as it then was) in May 2001^[42] the Government published a White Paper and its Enforcement Review,^[43] in March 2003. It confirmed the Government's acceptance of our recommendations to abolish distress as it concerned residential leases, but proposed the reform rather than the abolition of distress in commercial cases. We understand that the Government is looking to implement these changes by legislation as soon as Parliamentary time allows. 

Responsibility for State and Condition of Property

3.37     A Housing Bill containing clauses on a new Housing Health and Safety System is currently before Parliament. The Bill modernises the enforcement regime in respect of residential property found to be in an unsatisfactory condition for occupation. Following the enactment of the new legislation, the Office of the Deputy Prime Minister will reconsider the proposals in our report on Responsibility for State and Condition of Property.^[44] The recommendations in that report concerned private law rights rather than enforcement but were complementary to the criminal sanctions that existed at the time in respect of unfit properties. 

Compulsory Purchase

3.38     The Law Commission published its first report on Compulsory Purchase in December 2003.^[45] This is due to be followed by a second report, dealing with procedure. The Office of the Deputy Prime Minister intends to prepare a formal response to the two reports once the second one has been published. 
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Note 1    We are here referring to implementation of our work on law reform, rather than on consolidation or on statute law revision.     [Back]

Note 2    Double Jeopardy and Prosecution Appeals, Law Com No 267.    [Back]

Note 3    In respectively, July 1999 and May 2000.    [Back]

Note 4    Under the first limb of Galbraith [1981] 1 WLR 1039.    [Back]

Note 5    Evidence in Criminal Proceedings: Hearsay and Related Topics, Law Com No 245.    [Back]

Note 6    Evidence of Bad Character in Criminal Proceedings, Law Com No 273.    [Back]

Note 7    Except where it is another defendant who seeks to adduce the evidence.     [Back]

Note 8    Bail and the Human Rights Act 1998, Law Com No 269.    [Back]

Note 9    Lord Chancellor’s Department, The Execution of Deeds and Documents: A Consultation Paper on the implementation of the Law Commission’s report by way of a Regulatory Reform Order, September 2002.    [Back]

Note 10    Department of Constitutional Affairs, Response to the Consultation Paper, The Execution of Deeds and Documents, January 2004.    [Back]

Note 11    The Regulatory Reform (Business Tenancies) (England and Wales) Order 2003.     [Back]

Note 12    Landlord and Tenant: Business Tenancies - A Periodic Review of the Landlord and Tenant Act 1954 Part II (1992) Law Com No 208.     [Back]

Note 13    The Effective Prosecution of Multiple Offending, Law Com No 277.    [Back]

Note 14    Children: Their Non-accidental Death or Serious Injury (Criminal Trials), Law Com No 282.    [Back]

Note 15    See Part V, para 5.2.    [Back]

Note 16    Lord Chancellor’s Department, Third Parties – Rights against Insurers: A Consultation Paper on the implementation of the joint Law Commission and Scottish Law Commission report by way of a Regulatory Reform Order, September 2002.     [Back]

Note 17    Department of Constitutional Affairs, Analysis of Responses to the Consultation Paper, Third Parties – Rights against Insurers February 2004.     [Back]

Note 18    Legislating the Criminal Code: Offences against the Person and General Principles (1993) Law Com No 218.    [Back]

Note 19    Cort [2003] 3 WLR 1300, 1304.    [Back]

Note 20    Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237.    [Back]

Note 21    Legislating the Criminal Code: Corruption, Law Com No 248.     [Back]

Note 22    Fraud, Law Com No 276.    [Back]

Note 23    KR v Bryn Alyn Community (Holdings) Ltd (in liquidation) [2004] 2 All ER 716.     [Back]

Note 24    Hansard (HL), 16 July 2002, col 127.    [Back]

Note 25    (1998) Law Com No 249.    [Back]

Note 26    (1999) Law Com No 257.    [Back]

Note 27    Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits, (1999) Law Com No 262.     [Back]

Note 28    (1999) Law Com No 263.    [Back]

Note 29    Heil v Rankin [2000] 3 WLR 117.     [Back]

Note 30    This was raised in Law Com 262, above. The Department of Health produced a consultation paper on the issue in September 2002 (The recovery of NHS costs in cases involving person injury compensation) and published a summary of the outcome in September 2003. Provision for the extension is included in the Health and Social Care (Community Health and Standards) Act 2003, s 150.    [Back]

Note 31    (1997) Law Com No 247.     [Back]

Note 32    [2002] 2 AC 122. The case abolished the extremely technical rule in AB v South West Water [1993] QB 507 that exemplary damages could only be granted if a pre-1964 precedent established that they were available for that particular cause of action.     [Back]

Note 33    Company Directors: Regulating Conflicts of Interest and Formulating a Statement of Duties (1999) Law Com No 246.    [Back]

Note 34    (1997) Law Com No 246.    [Back]

Note 35    Final Report, DTI, June 2001.    [Back]

Note 36    Department of Trade and Industry, Modernising Company Law, Cm 5553, July 2002.     [Back]

Note 37    Mental Incapacity (1995) Law Com No 231.     [Back]

Note 38    Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults (Cm 3803).    [Back]

Note 39    Making Decisions (Cm 4465).     [Back]

Note 40    The Rules Against Perpetuities and Excessive Accumulations (1998) Law Com No 251.     [Back]

Note 41    Landlord and Tenant: Distress for Rent (1991) Law Com No 194.     [Back]

Note 42    Distress for Rent, Enforcement Review Consultation Paper No 5.     [Back]

Note 43    Effective Enforcement Cm 5744.     [Back]

Note 44    Landlord and Tenant: Responsibility for the State and Condition of Property (1996) Law Com No 238.     [Back]

Note 45    Towards a Compulsory Purchase Code (1) Compensation (2003) Law Com No 286.     [Back]