The Law Commission

Protocol between the Lord Chancellor (on behalf of the
Government) and the Law Commission




Law Com No 321

The Law Commission
(LAW COM No 321)




PROTOCOL BETWEEN THE LORD
CHANCELLOR (ON BEHALF OF THE
GOVERNMENT) AND THE LAW
COMMISSION



Presented to Parliament pursuant to section 3B(4) of the Law
Commissions Act 1965 as amended by section 2 of the Law
Commission Act 2009




Ordered by The House of Commons to be printed
29 March 2010




HC 499             London: The Stationery Office   

                                     © Crown Copyright 2010



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 PROTOCOL BETWEEN THE LORD CHANCELLOR
  (ON BEHALF OF THE GOVERNMENT) AND THE
             LAW COMMISSION
                                 CONTENTS


                                                                Paragraph   Page


INTRODUCTION                                                                1

SCOPE                                                           1.1         2

BEFORE TAKING ON A PROJECT                                      1.4         2
     Projects set out in a Commission programme of law reform   1.4         2
     Projects referred to the Commission by Ministers           1.8         3

OUTSET OF A PROJECT                                             1.10        4

DURING THE CURRENCY OF A PROJECT                                1.12        5

AFTER THE PROJECT                                               1.18        6




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                                          Introduction



We are pleased to present this protocol, agreed between the Lord Chancellor and the
Law Commission for England and Wales, on how Ministers of the Crown,
Government departments and the Law Commission should work together on law
reform projects. We see it as key to ensuring a more productive relationship, with
improved rates of implementation of Law Commission reports.


The Law Commission Act 2009, which came into force on 12 January 2010, amends
the Law Commissions Act 1965 to provide the statutory basis for the protocol. The
Act also introduces a duty on the Lord Chancellor to report annually to Parliament on
the extent to which Law Commission reports have been implemented by
Government.


Law that is fair, modern, simple and accessible is an aim shared by both the Law
Commission and the Lord Chancellor, on behalf of the Government. This document
and the commitments in the 2009 Act demonstrate our joint determination to increase
the momentum of law reform.




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The Rt Hon Jack Straw MP                                 The Rt Hon Lord Justice Munby
Lord Chancellor and Secretary of State for Justice       Chairman if the Law Commission




March 2010




                                                     1

SCOPE
1. This protocol sets out how Government departments and the Law Commission ("the
   Commission") agree to work together to deliver law reform in the most effective way
   possible.1

2. The Commission was set up under the Law Commissions Act 19652. In fulfilling its
   statutory duties under that Act, the Commission - while independent of Government
   - shares common purpose with the Government, in a commitment to law that is
   simple, fair, modern, accessible, fit for purpose (from the point of view of those who
   use it - whether professional practitioners, business users or the public) and cost
   effective.

3. This protocol covers the various stages of a project (before the Commission takes
   the project on; at the outset of the project; during the currency of the project; after
   the project). It applies both to projects set out in a Commission programme of law
   reform and to projects which arise out of individual referrals made to the
   Commission. The protocol applies only to projects which the Commission takes on
   after the date on which the protocol has been agreed, although Government
   departments and the Commission have agreed to take it into account, so far as
   practicable, in relation to projects which are ongoing as at that date. This protocol
   does not apply to Commission proposals for consolidation or statute law revision.3

BEFORE TAKING ON A PROJECT

Projects set out in a Commission programme of law reform
4. Most Commission projects originate as part of a three yearly Commission
   programme of law reform which must be approved by the Lord Chancellor.4

5. In deciding whether to include a project in the programme, the Commission will take
   account of:

         (1) the extent to which the law in that area is unsatisfactory;

         (2) the potential benefits that would flow from reform;

         (3) whether the independent non-political Commission is the most suitable
             body to conduct a review in that area of the law;

         (4) whether the Commissioners and staff have or have access to the
             relevant experience;


    1
        The protocol is made under section 3B(1) of the Law Commissions Act 1965 (as amended
        by section 2 of the Law Commission Act 2009).
    2
        Before the establishment of the Law Commission, a series of law reform committees had
        not proved equal to the task of planned and co-ordinated review, attracting criticism that
        the law remained unclear, inaccessible, outdated and unjust. The Law Commission was
        established as a full-time law reform body to keep all the law of England and Wales under
        review and to make recommendations for reform.
    3
        The term "statute law revision" includes statute law repeals.
    4
        Section 3(1)(b) of Law Commissions Act 1965.




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         (5) whether project-specific funding is available (if relevant);

         (6) the degree of departmental support, and the information provided by the
             department in accordance with paragraph 7 below;

         (7) the priority that should attach to the project when compared with other
             ongoing or potential projects;

         (8) whether there is a Scottish or Northern Irish dimension to the project that
             would need the involvement of the Scottish and/or Northern Ireland Law
             Commissions;

         (9) whether there is a Welsh dimension that would need the involvement of
             the Welsh Assembly Government.

6. Where the Commission is considering including a project in a Commission
   programme, the Commission will notify the Minister with relevant policy
   responsibility. In deciding how to respond to the Commission, the Minister will bear
   in mind that, before approving the inclusion of the project in the overall programme,
   the Lord Chancellor will expect the Minister (with the support of the Permanent
   Secretary):

         (1) to agree that the department will provide sufficient staff to liaise with the
             Commission during the currency of the project (normally, a policy lead, a
             lawyer and an economist);

         (2) to give an undertaking that there is a serious intention to take forward law
             reform in this area (if applicable in the case of the particular project).

7. In discussion between the department and the Commission, the department will,
   insofar as is possible at this stage, provide views to the Commission on:

         (1) what it considers to be the most appropriate output for the project (for
             example, policy recommendations, a draft bill, draft guidance) and the
             likely method of implementation;

         (2) any risks associated with that method of implementation which might
             lead to non-implementation or significantly delayed implementation (for
             example, difficulties in obtaining legislative time if the method of
             implementation is legislation).

Projects referred to the Commission by Ministers
8. Some Commission projects arise as referrals from Ministers5. Where a Minister
   asks the Commission to take on a new project, he or she must (with the support of
   the Permanent Secretary in the case of points 2 and 3):

         (1) explain why the law in that area is unsatisfactory and the potential
             benefits that would flow from reform;


    5
        Section 3(1)(e) of the Law Commissions Act 1965.




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        (2) agree that the department will provide sufficient staff to liaise with the
            Commission during the currency of the project (normally, a policy lead, a
            lawyer and an economist);

        (3) give an undertaking that there is a serious intention in the department to
            take forward law reform in this area (if applicable in the case of the
            particular project);

        (4) provide views on the matters listed at paragraph 7 above (insofar as is
            possible at this stage);

        (5) make funding proposals for the project.

9. In deciding whether or not to accept a referral, the Commission will take account of:

        (1) the extent to which the law in that area is unsatisfactory, and the potential
            benefits that would flow from reform (including the Minister's views on
            these matters - paragraph 8(1) above);

        (2) whether the independent non-political Commission is the most suitable
            body to conduct a review in that area of the law;

        (3) whether the Commissioners and staff have or have access to the
            relevant experience;

        (4) the information provided by the Minister (see above), including whether
            sufficient funding is available;

        (5) the priority that should attach to the project when compared with other
            ongoing or potential projects;

        (6) whether there is a Scottish or Northern Irish dimension to the project that
            would need the involvement of the Scottish and/or Northern Ireland Law
            Commissions

        (7) whether there is a Welsh dimension that would need the involvement of
            the Welsh Assembly Government.




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OUTSET OF A PROJECT
10. At the outset of a project, the relevant department and the Commission will agree:

          (1) the terms of reference for the project, including the output;

          (2) appropriate review points at which to consult with the Minister on the
              progress of the project;

          (3) the overall timescale for the project.

11. At the outset of a project, the departmental officials (to include, unless otherwise
    agreed, a nominated policy lead, a lawyer and an economist) and the Commission
    will agree a programme of regular communication, to include meetings which will
    normally be at least every quarter while the project is live.

DURING THE CURRENCY OF A PROJECT
12. The officials and the Commission will maintain the programme of communication
    agreed at the outset of the project, subject to any agreed changes.

13. The Commission will communicate promptly and openly with the officials about the
    progress of the project. Officials will also communicate promptly and openly with the
    Commission about wider policy developments and changes in priorities that may
    affect implementation, on the mutual understanding that the confidentiality of
    information will be respected (subject to any applicable legal obligations).

14. The Commission will keep the progress of the project under review and may decide,
    in discussion with the relevant department, to change one or more elements of the
    project or to discontinue the project.

15. A Minister may not require the Commission to stop working on an ongoing project
    but in deciding whether, and if so how, to continue with the project at the review
    points, the Commission will take full account of the Minister's views and all relevant
    factors affecting the prospects for implementation.

16. The Commission will prepare an impact assessment (which will comply with the
    government guidance on impact assessments) to accompany a final report.

17. Officials will assist the Commission in drawing up the impact assessment, including
    by providing information (where available) and by commenting on the impact
    assessment in draft. Where possible, the impact assessment will be jointly agreed.




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       AFTER THE PROJECT

       18. The Minister will provide an interim response to the Commission as soon as
           possible and in any event within six months of publication of the report unless
           otherwise agreed with the Commission.

       19. The Minister will provide a full response to the Commission as soon as
           possible after delivery of the interim response and in any event within one
           year of publication of the report unless otherwise agreed with the
           Commission. The response will set out which recommendations the Minister
           accepts, rejects or intends to implement in modified form. If applicable, the
           Minister will also provide the timescale for implementation.

       20. If the department is minded either to reject or substantially modify any
           significant recommendations, it will first give the Commission the opportunity
           to discuss and comment on its reasons before finalising the decision.

       21. The Minister will send his or her final response to the Chairman of the
           Commission.

       22. If the Minister intends to implement recommendations, the Commission and
           the department will agree what additional support (if any) the Commission iiIl
           provide to the department to assist implementation and whether additjnal
           funding is necessary.                                            
                                                                        
     


    The Rt Hon Jack Straw MP                           The Rt Hon Lord Justice Munby

    Lord Chancellor and Secretary of                   Chairman of the Law Commission
    State for Justice

                                       March 2010




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