Work of the Law Commission

Robert Buckland Excerpts

Wednesday 1st March 2023 Commons Chamber

[Sir Robert Buckland (South Swindon) (Con)]

It is my pleasure to speak in this slightly early Adjournment debate on the work of the Law Commission. By that, I mean the Law Commission of England and Wales, as opposed to the Scottish Law Commission, founded in 1965, which does excellent work north of the border, and the Northern Ireland Law Commission, which sadly has not been functioning since 2015. On that note, as a member of the Northern Ireland Affairs Committee, I very much hope that as part of the normalisation of politics in Northern Ireland, we see that body working and contributing to better law and law reform in Northern Ireland. It is to the Law Commission of England and Wales that my remarks relate, and I am glad to see my right hon. Friend the Minister in his place.

First, I will talk about the purposes of the Law Commission. It is nearly 60 years since it was created by one of my predecessors, the noble Lord Gardiner. Since that time, it has enjoyed the stewardship of many distinguished senior judges and dedicated lawyers and civil servants. Its objectives remain clear: first, simplification and modification of the law; secondly, the law’s codification; thirdly, the removal of anomalies in the law; fourthly, the repeal of obsolete and unnecessary enactments; and, finally, the consolidation of legislation. Its objectives have been restated in recent years in its reports, and they are worth stating here on the Floor of the House. They are as follows:

“To be the authoritative voice on law reform; To make a difference through our law reform work; To be proactive in promoting the need for law reform in key areas and achieve ‘good law’;”—

a term that I will adopt—

“To have a strong reputation in the UK and abroad for being effective in the delivery of law reform; To attract the best talent and be an excellent place to work.”

I am pleased that as part of the Law Commission’s developing reform, back in 2020 when I was Lord Chancellor, I agreed a return to a full funding model for the Law Commission, with a focus on where law reform is most needed, rather it being a question of where the finances were available. While the cross-Whitehall funding source model, where other Departments were encouraged to work with the Law Commission on projects, was an interesting way to try to develop new initiatives on political priorities, it seemed to me that it did not provide the level of certainty needed for a longer-term view, for the retention of quality lawyers and researchers, and for the Law Commission to be able to plan with confidence over several years, rather than from year to year. The Law Commission works not just with the United Kingdom Government, but with the Welsh Government in Cardiff, and I will raise a very good example of that in a little while.

I draw the House’s attention to the important contribution that the Law Commission has made to the law as it has developed over the past few years. When the issue of the abuse of intimate images—a sensitive issue particularly affecting many women and girls and young men in our society—raised its head, the Law Commission was asked to review the law and publish its final recommendations last year. It created a new proposed framework that dealt with a range of issues that went well beyond the reform that we made to the law on upskirting, to deal with deepfake images and the like—current, relevant and important concerns of the general public. I am glad to say that the Government adopted those recommendations and that we now see them in the Online Safety Bill.

The Law Commission has fresh recommendations that merit close examination by Ministers in the Home Office. Last November, it produced a series of recommendations to reform the system for the recovery of the proceeds of crime—again, a germane and relevant issue when it comes to the need for those who profit from criminality to repay the proceeds of that conduct. In particular, I was struck by its sensible recommendations to accelerate confiscation proceedings, to allow the taking of assets if a particular order was not paid—a much stronger approach to enforcement—and to strengthen restraint orders themselves, which are so important at the early stages of confiscation of the proceeds of crime. The proposals in that report merit immediate adoption by the Government—if not in this Session than certainly in the final Session before the end of the Parliament.

I was struck by a report that the Law Commission published in 2020, which was compiled for the Commission by independent economists. They revealed in their analysis that if the Law Commission’s recommendations were implemented for five key projects that they examined, the economic value of that implementation would exceed £3 billion over a period of 10 years. That is a striking amount of money involving only five projects. There are many more projects that the Law Commission has commissioned and completed, and I suspect the overall financial benefit to our country would significantly exceed even that hefty sum. In a wider analysis of 11 projects completed by the Law Commission, the independent analysts discovered that those projects would positively contribute to the lives of well over 27 million people in our country. This is therefore not a niche issue or a dry matter just for lawyers; it is a matter of public good and public benefit.

One of those five projects was the adoption of the sentencing code. For many years, the law of sentencing in England and Wales has been—from my own professional experience—a miasma of conflicting laws of various ages. It has often been more of a challenge for judges and lawyers to work out which provision applies in which area than it has been to focus on the outcome of sentencing, which surely has to be the justice of the case and the need for condign punishment.

The Law Commission’s work on developing a consolidated code, which would be much easier for judges and lawyers to use and would reduce the danger of mistakes or the need for appeal, was very much the preoccupation of the Court of Appeal, and something that I thought merited reform. I am glad that, as Lord Chancellor, I helped drive through both the paving Act and the Act that established the sentencing code in 2020. Why did I do that? Again, it was not just because of an obsession with neatness, though I do like neat and tidy laws; it was because the estimate of the reduction of costs was a grand total of up to £256 million over a period of 10 years. That is no small beer when it comes to the criminal justice system, and I am proud that the Ministry of Justice did that during my time as Lord Chancellor.

There are many other examples of how the Law Commission has benefited this country. The creation of the Fraud Act 2006, which simplified the law of fraud, making it easier and more straightforward to understand and use in prosecutions, was the work of the Commission. The Care Act 2014, which ensured that the rights of carers and their families were better enshrined in law—again, something I was involved in as a Back Bencher—was also the product of Law Commission work. This is not merely dry talk for lawyers; this is about good law and good law reform protecting citizens and saving resources.

Law reform can ensure that new technology is better and more safely used and that the environmental protections we need in the light of climate change are in place to promote sustainable growth. Good law can lead to improvements in wellbeing and welfare by opening up opportunities and helping to improve health outcomes. Good law leads to clear and streamlined processes. It reduces inefficiency and increases predictability, which is great for businesses and good for investors, for our public sector and for all our citizens. There is a strong economic case for good law. Above all things, it helps to maintain the integrity of our legal system and of the rule of law itself. Achieving greater certainty in the law will reduce the need for litigation or challenge via the courts, which is a powerful way of ensuring that not only access to justice, but justice itself, is strengthened and deepened.

A busy Government with a packed agenda will say—I heard this many times during my long service on the Parliamentary Business and Legislation Cabinet Committee —that there is no time in the legislative programme for such worthy projects. My argument is simple: let us make the time, and let us make this a priority. I am not sure that it is simply a question of having more hours during the week to do the work; I think it is much more about our sense of priorities. To allude to something Aneurin Bevan said in another context, it is about the religion of priorities. For example, if the Government made a couple of slots for law reform available in each King’s Speech, alongside the well-worn phrase that comes at the end of the Gracious Address about “other measures”, it could be incredibly helpful to business managers.

Law Commission Bills start in the Lords, where there is a special, well-established Committee procedure for suitably expert Members of that House to scrutinise and refine proposed legislation. In this House, we have Standing Order No. 59, which allows us to fast-track Law Commission Bills by referring them to a Second Reading Committee

“unless the House…otherwise orders”.

That is a very good head start, but I am not sure that it is enough for getting Law Commission Bills through this place.

Where the context and content of Law Commission Bills is entirely uncontroversial, there is no difficulty. Sometimes, however, although the content may not be controversial, the context is. There is always a danger present in the minds of business managers that the scope of such a Bill may be just wide enough to allow amendments of a controversial nature. Let us take firearms legislation as an example. The criminal legislation on firearms is a mess: we have very good, tight firearms legislation in this country, but anybody who has read the Firearms Act 1968 understands that it needs consolidation and a thorough spring clean to make it much more comprehensible to practitioners and the general public. That seems uncontroversial, but inevitably there might be amendments to such a Bill that would be very controversial indeed. That is just one example that I am sure business managers would be concerned about, and no doubt the Leader of the House would have a view.

The Minister will say that these are matters for the House, not for the Government, but I think it would be helpful if he took the message to the Leader of the House —I know he will do so, because he is a former Paymaster General and knows the machinery of government—and asked her to work with the Procedure Committee. They could look again at how Standing Order No. 59 and the fast-track procedure in Standing Order No. 58 could allow Law Commission Bills to go straight from Second Reading to Third Reading without the need for a full Committee stage. That would be a sure-fire way to ensure that we can use Law Commission’s recommendations more frequently and make good law more regularly.

I pray in aid a very good example from Wales. The Law Commission’s report “Regulating Coal Tip Safety in Wales”, which was laid before the Senedd on 24 March last year, is very important in the context of the management of disused coal tips. I can tell the House from considerable knowledge, as a former Secretary of State for Wales and a proud Welshman, that the issue is very resonant and salient in many parts of south Wales, particularly the old coalfield.

The Law Commission report then allowed the Welsh Government to produce their White Paper in May last year. A full response is coming this month, and I hope that primary legislation will follow in this current Session of the Senedd. That is a good example in Wales of everybody working together. We also do it well here in the United Kingdom Parliament, or we can do it well, but I do think we need more moments such as that when sensible provisions, such as the ones I have outlined—and there are many more that the Law Commission has proposed—can be done.

Before I end, let me say that I am particularly pleased that the Government are going to act on a very important Law Commission recommendation on economic crime. We debated that legislation some weeks ago, and it is currently before the other place. That is another example of how we can use its work to great effect.

Finally, all the arguments we had about the law of nuisance were strengthened by the fact that the Government were acting on a Law Commission recommendation to codify the common law of nuisance and put it into statute. Those were the arguments that I deployed when I was at the Dispatch Box on Second Reading of the Police, Crime, Sentencing and Courts Bill, which is now law. There are many other examples I could give.

I know that my right hon. Friend the Minister, in his response, will pay more than lip service to what his colleagues in the Ministry of Justice are saying. I know that he, as a supporter of the Law Commission and the work of Sir Nicholas Green and all the team there, will want to shower praise on them, and rightly so. What I am looking for from my Government is a sense of commitment to making sure that we can create more good law, and that law reform is not a mere adjunct for the lawyers, but is at the heart of what it will take to make this economy grow and make this country more productive in the future. That, of course, is the key challenge for our Government and, indeed, future Governments.