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You are here: BAILII >> Databases >> The Law Commission >> The Fortieth Annual Report of the Law Commission (Report) [2006] EWLC 299(7) (14 June 2006)
URL: http://www.bailii.org/ew/other/EWLC/2006/299(7).html
Cite as: [2006] EWLC 299(7)
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PART 7
PUBLIC LAW TEAM
KENNETH PARKER QC COMMISSIONER
TEAM MEMBERS[1]
Lawyers
Richard Percival (Team Manager)
Tola Amodu, Helen Carr, Eleanor Cawte,
Charlotte Crilly, Elizabeth Saunders
Visiting Academic Consultants
Professor David Cowan, Alex Marsh
Research Assistants
Mike Atkins, Daniel Bovensiepen,
Ed Kirton-Darling, Regan Morris,
Doug Rhodes, Richard Turney
7.1 Kenneth Parker QC became the Commissioner for the Public Law Team at the beginning of 2006. Although Martin Partington's term of office as Commissioner ended on 31 December 2005, he has agreed to stay on as a special consultant to undertake the Commissioner's role in relation to the team's continuing housing projects.Commissioners
7.2 As a result of the consultations leading up to the publication of the Ninth Programme of Law Reform, problems with the incidence of monetary remedies against public bodies were drawn to the Law Commission's attention. The argument is that there are gaps in the availability of compensation where a public body has wrongfully caused loss to a citizen. Compensation is available where governmental action breaches human rights or European Union law, and public bodies' liability in negligence has been significantly extended. However, no monetary compensation is available where a public body has acted in a way that is unlawful in public law, and has caused loss to the citizen. 7.3 We published a discussion paper in October 2004, followed by a seminar in November 2004. Most of those attending the seminar thought that the concentration on monetary remedies was too narrow. The feeling was that it was necessary to consider what kind of remedies against public bodies people wanted, and how these remedial mechanisms could improve public services. The importance of taking account of the resource implications of the liability of public bodies was also emphasised. 7.4 A proposal that a scoping study be undertaken to determine the parameters of a substantive law reform project to consider these issues was included in the Ninth Programme. Further thinking within the Public Law Team led to the conclusion that concentrating on the remedial consequences of actions that were unlawful in public law terms was itself too narrow. It would be impossible to properly consider the desirability of individual remedies without a clear view of the various ways in which the actions of public bodies could be held to account by citizens, and from which various remedies flowed. 7.5 The Commission will be publishing a scoping paper in summer 2006. The subsequent project will consider the range of claims and remedies available to the citizen to challenge unlawful action by public bodies. It will consider the remedies where a public body is found to have behaved unlawfully, the basis of remedies in negligence and in the intentional torts (where compensation does not depend on fault), and damages for breaches of human rights and of European Union law. The project will also consider the role of ombudsmen, mediation, internal review mechanisms and complaints procedures. A key element in the proposed project is the need for a sound empirical understanding of the impact of liability and remedies on resources and the practice of government. The project will ask whether litigation and compensation are good uses of public funds that could otherwise be spent on service provision. It will also be necessary to consider whether liability encourages defensive administration to the detriment of the public good, or whether it encourages good practice.Citizen's redress against public bodies
Housing projects
7.6 The project was originally commissioned by Nick Raynsford, the then Minister of Housing, in 2001. An important element in the project from the Department's point of view was that it took forward work on a "single social tenancy". Our recommendations will result in the use of an identical contract by local authorities, registered social landlords (that is, most housing associations), and indeed those private landlords[2] who choose it, or for whom public funding makes it a requirement, such as those providing social housing for those in need. Current legal differences which inhibit the flexible delivery of policy will be removed. 7.7 This will help provide essential flexibility in the rental market. It will facilitate new partnerships between local authorities, registered social landlords and private investors, contributing to greater social stability and cohesion and therefore to more sustainable communities. 7.8 Establishing a modernised, and stable, legal regime governing rented housing is, also a pre-condition to overcoming other problems, in particular the continuing low reputation of the private rented sector. 7.9 Plans to finalise the draft Bill in 2005 were defeated by continuing drafting challenges. However, the draft Bill and the final report were published shortly after the close of the reporting period for this Annual Report.[3] This report marks the culmination of the principal project which Martin Partington lead during his time as a Commissioner. The Government's response is awaited.Renting homes
7.10 Work has continued on the project on housing disputes, following the reference from DCA in 2004. In March 2006, an issues paper was published: Housing Disputes: Proportionate Dispute Resolution.[4] 7.11 The issues paper used the broad, socio-legal approach identified for this project by DCA.Resolving housing disputes
(1) It analysed existing methods of resolving housing disputes in terms of the key concept of proportionality, and concluded that they were, or were capable of operating disproportionately.
(2) It provided an outline of an alternative system, central to which is a role with the (provisional) designation "triage plus". Triage plus providers would be the first port of call for people experiencing housing problems. Triage plus would signpost individuals through the system, showing them the best ways to resolve their dispute; maintain oversight of the system as a whole, both nationally and locally, so that the system can respond flexibly to the needs of the public; and gather intelligence, providing a knowledge bank in support of the other two functions.
(3) The paper identified three particular non-court techniques for managing disputes that could offer more as part of a triage plus-directed disputes system. These were first, using management responses, particularly within large public landlords to improve the "quality control" of decision making and dispute handling; secondly, ombudsmen, and thirdly, mediation.
7.12 Alongside the consultation paper itself, the Law Commission also published a more detailed "further analysis", which provided fuller details of the theoretical approach adopted, and the academic literature drawn on in the development of the proposals. In addition, 18 working papers, amounting to 779 pages, were made available on the Commission's website.(4) It considered whether, where a dispute needed formal adjudication, the forum for adjudication should be generalist or specialist, a court or a tribunal.
7.13 This project was included in the Ninth Programme. However, further work has been significantly held up by the continuing priority being given to Renting Homes during 2005. Although the genesis was the recommendations for projects on harassment/unlawful eviction and anti-social behaviour in the private sector, it became clear that both were aspects of the regulation of the rented sector. 7.14 A seminar was held on 21 March 2006, bringing together academics and key officials and policy makers. The aim of the seminar was to bring to bear on the rented sector the considerable learning on regulation. A summary is available on the Commission's website.[5] 7.15 The results will be very helpful in informing the further development of the Team's thinking. A consultation paper is planned for the end of 2006.Housing: ensuring responsible renting
Note 1 Including those who were at the Commission for part of the period. [Back] Note 2 Subject to a very minor difference relating to the right to exchange. [Back] Note 3 Publication details. [Back]
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