The Law Commission

THE LAW COMMISSION

(LAW COM No 299)

ANNUAL REPORT 2005/06
The Fortieth Annual Report of the

A Report

Laid before Parliament by the Secretary of State
for Constitutional Affairs and Lord Chancellor pursuant to section 3(3) of the Law Commissions Act 1965

Ordered by The House of Commons to be printed

14 June 2006

HC 1162 London: TSO

THE LAW COMMISSION

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

Commissioners:

The Honourable Mr Justice Toulson, Chairman

Professor Hugh Beale QC, FBA

Mr Stuart Bridge

Dr Jeremy Horder

Mr Kenneth Parker QC^[1]

Special Consultant: Professor Martin Partington CBE

Chief Executive: Mr Steve Humphreys.

The Commission is located at Conquest House, 37-38 John Street, Theobalds Road, London, WC1N 2BQ.

LAW COMMISSION ANNUAL REPORT 2005-06

To the Right Honourable the Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor

REFORMING THE LAW - 40 YEARS ON

'One of the hallmarks of an advanced society is that its laws should not only be just but also that they should be kept up-to-date and be readily accessible to all who are affected by them. The state of the law today cannot be said to satisfy these requirements….'

'…English Law should be capable of being recast in a form which is accessible intelligible and in accordance with modern needs….'^[2]

These two quotes are as true today as when they were written in the White Paper proposing the establishment of Law Commissions in England and Wales and Scotland, issued in January 1965. The White Paper is a model of conciseness at four pages long. It encapsulated precisely the desire of the Lord Chancellor, Gerald Gardiner, to improve the law. He felt that the repeal of huge areas of the law should not take place 'over tea on a sunny afternoon'. He wanted a professional permanent body to be set up under the chairmanship of a High Court judge, with a remit to assess and improve the law in a coherent and structured way.

In June 1965 the Law Commissions Act 1965 received Royal Assent and Commissions in both England and Wales and Scotland came into being. Leslie Scarman was appointed the first chairman in England and Wales, and led us with such distinction that our work soon won wide respect for its quality and its contribution to the development of the law. The example has been copied widely throughout the Commonwealth, where there are now over 60 similar law reform bodies.

Today, as in 1965, our principal objective is to seek to achieve a body of law that is accessible to those who are affected by it. The task that faced our predecessors in 1965 was great, but the inexorable increase in the pace of legislation, and the increasing readiness of Government to seek legislative solutions to problems has made it much greater. In a legislative programme that is so full of priority government measures, it is increasingly difficult for our work to find the time it needs to be made into law. We continue to be told that some reports issued more than 10 years ago will be implemented 'when parliamentary time becomes available'. This is a source of very real concern to us. Our process is thorough, involving wide consultation and careful analysis. The public money spent on enabling us to help provide the citizen with laws that are understandable and relevant to the 21^st century can only be justified if the Government is able to find time to implement those proposals it accepts.

We are looking critically at the way we are working to make sure that in selecting projects for our Programme, we are giving attention to areas of the law most in need of reform and where reform will deliver real public benefit.

Over the last year we have met with most Government departments. We have been reassured that there is a continuing need for the work that we do. Unsurprisingly, this is particularly acute for those departments for whom we are actively working, who find the work we do useful and relevant to their plans for the future. Unfortunately, this is not always matched by a readiness to devote Parliamentary time and departmental effort to implement our proposals.

The Legislative and Regulatory Reform Bill presently before Parliament seeks, amongst other things, to provide a means to give effect to non-controversial proposals that we have made. We welcome the Government's commitment to finding a way to improve the implementation rate of our reports. We will continue to work with the Government to devise ways to give Parliamentary time to proposals that have been approved and require primary legislation. We expect to be able to report more positively in next year's annual report about the number of accepted and implemented recommendations. See Part 3 for more information.

During the course of the Law Commission's 40^th year, there have been several high profile public events. We were particularly pleased with the inaugural Scarman Lecture, held on 20 February in honour of our first Chairman. The presentation was given by Justice Michael Kirby, the first Chairman of the Australian Law Commission (1975-84), and Justice of the High Court of Australia.

We have also held a three-month exhibition in the Royal Courts of Justice, which covers the History of Law Reform, and encourages people to get involved in changing the law. We sponsored the first conference of the Commonwealth Association of Law Reform Agencies (CALRAs), and held the first meeting of the Chairs and Chief Executives of the four Law Reform Commissions in the British Isles. We have led public debate on how to reform the law of homicide, and on how laws should be reviewed after implementation. We have discussed the future of insurance contract law with the British Insurance Law Association at an open seminar. We have also met with unprecedented numbers of people to assess how to alleviate the financial hardship suffered by cohabitants or their children on the termination of their relationship by separation or death.

During the course of the past year, Sir Roger Toulson agreed to extend the tenure of his Chairmanship until July 2006 and Stuart Bridge, Commissioner for Property, Family and Trust Law agreed to stay at the Commission until July 2008. In January 2006 Kenneth Parker QC took over as Commissioner for Public Law from Professor Martin Partington CBE. Martin has stayed on as a special consultant in order to complete the major work on rented housing which we have been doing at the request of Government. It has been a uniquely demanding project and we are profoundly grateful to Martin for providing the leadership from start to finish.

The Ninth Programme is now well under way. Over the course of the next year, consultation and public discussion will begin to decide the content of the Tenth Programme of Law Reform. As part of this process we invite comments and suggestions on any area of the law from any body or member of the public.

CONTENTS

REFORMING THE LAW – 40 YEARS ON
PART 1: THE COMMISSION	PART 1
Who we are	1.1
What we do	1.5
Consultation methods	1.6
Developing the programme of work	1.8
The Law Commission's role and methods	1.11
Equality and diversity	1.16
Code of best practice for Law Commissioners	1.17
What's in this Annual Report?	1.18
PART 2: A REVIEW OF 2005-06	PART 2
Work of the Commission	2.1
Publications in 2005-06	2.1
Appointment of Commissioners	2.5
Targets 2006-07	2.8
PART 3: IMPLEMENTATION OF LAW COMMISSION REPORTS	PART 3
Introduction	3.1
Action during this period	3.4
In summary	3.4
Implemented reports	3.7
Execution of Deeds and Documents	3.7
Mental Incapacity	3.8
Interim responses from the Government	3.9
Involuntary Manslaughter	3.9
In the Public Interest: Publication of Local Authority Reports	3.12
Partnership Law	3.13
Reports awaiting implementation	3.15
Aggravated, Exemplary and Restitutionary Damages	3.16
Corruption Offences	3.17
Distress for Rent	3.18
Fraud	3.20
Effective Prosecution of Multiple Offending	3.23
Limitation of Actions	3.25
Offences against the Person	3.28
Perpetuities and Accumulations	3.30
Third Parties' Rights against Insurers	3.31
Reports awaiting Government decisions	3.32
Company Security Interests	3.33
Damages for Personal Injury	3.34
The Forfeiture Rule and the Law of Succession	3.37
Pre-judgment Interest on Debts and Damages	3.39
Unfair Contract Terms	3.40
Reports not implemented	3.42
Partial Defences to Murder	3.46
Land, Valuation and Housing Tribunals: The Future	3.48
PART 4: COMMERCIAL LAW AND COMMON LAW	PART 4
Company Security Interests	4.1
The Forfeiture Rule and the Law of Succession	4.6
Insurance Contract Law	4.8
Property Interests in Investment Securities	4.11
Illegal Transactions	4.14
PART 5: CRIMINAL LAW, EVIDENCE AND PROCEDURE	PART 5
Review of Homicide	5.1
Assisting and Encouraging Crime	5.7
Judicial Review of Crown Court Decisions	5.12
Codification of the Criminal Law	5.15
PART 6: PROPERTY AND TRUST LAW	PART 6
Cohabitation	6.1
Easements and Covenants	6.4
Termination of Tenancies for Tenant Default	6.8
Trustee Exemption Clauses	6.11
Capital and Income in Trusts: Classification and Apportionment	6.14
The Rights of Creditors against Trustees and Trust Funds	6.18
Feudal Land Law	6.19
PART 7: PUBLIC LAW TEAM	PART 7
Commissioners	7.1
Citizen's Redress against Public Bodies	7.2
Housing Projects	7.6
Renting Homes	7.6
Resolving Housing Disputes	7.10
Housing: Ensuring Responsible Renting	7.13
PART 8: STATUTE LAW	PART 8
Consolidation	8.1
Statute Law Revision	8.16
Post-Legislative Scrutiny	8.20
PART 9: EXTERNAL RELATIONS	PART 9
Parliament and Ministers	9.3
Consultees and Stakeholders	9.6
Seminars, Lectures and Conferences, etc.	9.8
Socio-Legal Research	9.16
Law Commissions in the British Isles	9.23
International Relations	9.26
PART 10: STAFF AND RESOURCES	PART 10
Recruitment and working patterns	10.1
Staff	10.3
Legal staff	10.4
Research assistants	10.7
Corporate Services Team
Library staff	10.11
APPENDIX A: THE LAW COMMISSION'S IMPLEMENTED REPORTS SINCE 1992	A
APPENDIX B: LAW COMMISSION REPORTS AWAITING IMPLEMENTATION	B
APPENDIX C: STAFF	C
APPENDIX D: THE COST OF THE COMMISSION	D

Note 1    Kenneth Parker was appointed on 3 January 2006, succeeding Professor Martin Partington as Commissioner of the Public Law team.    [Back]

Note 2    p2 Proposals for English and Scottish Law Commissions (Cmnd 2573) HMSO 1965.    [Back]