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You are here: BAILII >> Databases >> The Law Commission >> The Fortieth Annual Report of the Law Commission (Report) [2006] EWLC 299(3) (14 June 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/299(3).html Cite as: [2006] EWLC 299(3)

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PART 3

IMPLEMENTATION OF LAW COMMISSION REPORTS

INTRODUCTION

3.1      The Law Commission is responsible for a range of publications, including reports, consultation papers, discussion papers, scoping studies, and advice to Government. A law reform project is normally concluded by publication of a final report offering recommendations to the Government. Occasionally, a report may not recommend any change to the existing law. However, in the majority of cases, a report will make a number of recommendations for changing the law, and will append a draft Bill to give effect to those recommendations. The report will be laid before Parliament, and Government will decide whether, and if so how, to implement the recommendations.
3.2      Recommendations may be implemented by primary legislation (an Act of Parliament) or by secondary legislation (a Statutory Instrument). The Regulatory Reform Act 2001 enables Government to introduce secondary legislation, in the form of a Regulatory Reform Order (RRO), where its purpose is to reform legislation which imposes burdens affecting persons in the carrying out of any activity. It is also sometimes possible for recommendations to be implemented by the courts.
3.3      This Part together with Appendix B record the implementation status of Law Commission reports. They do not deal with consolidation or statute law revision reports.

ACTION DURING THIS PERIOD

In Summary

3.4      Between 1 April 2005 and the end of March 2006 the Law Commission published 2 law reform reports. In the same period, recommendations from 1 Law Commission report was enacted by Parliament.
3.5      In March 2006:

(1) 14 law reform reports that have been accepted by the Government still await implementation

(2) 12 other reports still await decisions by the Government^[1]

3.6      Diagram 3.1 above gives a five-year overview of the number of Law Commission reports submitted to the Government; the number agreed by the Government, but where legislation has not been introduced; the number awaiting a decision by the Government; and the number implemented by legislation or through court decisions.

Implemented Reports

EXECUTION OF DEEDS AND DOCUMENTS

3.7      This is our first report to be implemented through a Regulatory Reform Order. The report, published in 1998, aimed to simplify the formal requirements for deeds and company documents.^[2] It was implemented through The Regulatory Reform (Execution of Deeds and Documents) Order 2005 in the last reporting period and came into force in September 2005.

MENTAL INCAPACITY

3.8      The Mental Capacity Act 2005 was enacted in April 2005. The Act implements the majority of the recommendations in the Commission's 1995 report and draft Bill on this topic.^[3] The Commission assisted with the passage of the Bill through Parliament. We expect the Act to come into force in April 2007.

Interim responses from the Government

INVOLUNTARY MANSLAUGHTER

3.9      In 1996 the Law Commission published a report^[4] and draft Bill which 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. The Home Office published a draft Corporate Manslaughter Bill on 23 March 2005. The Bill proposed a new criminal offence of corporate manslaughter that would apply if the way in which an organisation's activities were managed or organised by its "senior managers" caused a person's death and amounted to a gross breach of a duty to take reasonable care for the safety of the deceased.
3.10      These proposals were considered by the House of Commons Home Affairs and Works and Pensions Sub-Committees. In December 2005 the Committees published a report criticising the proposed "senior manager" test and advising a return to the Law Commission's more general approach of 'management failure'. The Chairman for the joint inquiry, John Denham MP said:

The new Bill must be introduced this year, but it must take into account our recommendations if relatives of victims are not to feel cheated of justice in the future.

3.11      In March 2006 the Government published its response to the joint report of the Home Affairs and Works and Pensions Committees.^[5] The Government said that it welcomed the Committees' strong support for a statutory offence of corporate manslaughter, adding that it intended to legislate without delay as soon as Parliamentary time allows. The Government also said that it appreciated the concerns that the "senior management" test had given rise to, and that it accepted that "a new test should be brought forward that better captures the essence of corporate liability". The new test would retain the key element of management failure but "would be aimed at failures in the management overall of a particular activity".

IN THE PUBLIC INTEREST: PUBLICATION OF LOCAL AUTHORITY REPORTS

3.12      Our report "In the Public Interest: Publication of Local Authority Inquiry Reports" was published in July 2004.^[6] It recommended that local authorities should have available to them a new defence in defamation where the allegedly defamatory statement is contained in the report of a local authority inquiry, provided that the inquiry was itself fair. It also recommended a new statutory power for local authorities to conduct inquiries, which would include a procedure for an application to be made to the High Court to compel a recalcitrant witness. The Government was expected to deliver its response on the proposals in early 2005. We have still not heard from the Department for Communities and Local Government (the successor to the Office of the Deputy Prime Minister).

PARTNERSHIP LAW

3.13      Our joint report with the Scottish Law Commission on Partnership Law was published in November 2003.^[7] It recommended that a new Partnerships Act should be enacted, under which partnerships in England and Wales would become legal entities. This would reflect the reality of their role in the commercial life of Britain, and bring together the law of partnership across England, Wales and Scotland.
3.14      The Department of Trade and Industry (DTI) issued a consultation paper as part of its regulatory impact assessment of our proposals in May 2004. We await the Government's conclusions.

Reports awaiting implementation

3.15      It is a source of increasing concern that despite the Government accepting our recommendations, in some cases over a decade ago, it has not proved possible for Parliamentary time to be found to bring forward the necessary legislation. We hope that the Regulatory and Legislative Reform Bill, if enacted, will enable some of the non-contentious proposals which have been accepted to be implemented. However, the lack of commitment to find Parliamentary time to implement accepted recommendations costs significant amounts of public money. More importantly, the individuals and businesses that Government accepts would benefit from our suggested reforms are denied those changes. The affected areas of law remain archaic, uncertain, unduly complex or simply unfair. We report below on the current position on some of our reports awaiting implementation

AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES

3.16      We published a report in 1997.^[8] In November 1999 the Department for Constitutional Affairs (DCA) said that it accepted our recommendations on aggravated and restitutionary damages, though not those on exemplary damages, and would legislate when a suitable opportunity arose. We understand that in view of the length of time that has elapsed DCA intends to reconsider the recommendations on aggravated and restitutionary damages in its consultation on our other damages reports (see paras 3.34-36).

CORRUPTION OFFENCES

3.17      In 1998 the Law Commission published a report^[9] and draft Bill which recommended the creation of four new offences to replace those in the Prevention of Corruption Acts 1889-1916. In 2000 the Government consulted on the Law Commission's proposals and in 2003 presented a draft Corruption Bill, based on the Commission's work, for Pre-Legislative Scrutiny (PLS). The Joint Committee which gave the Bill its PLS recommended abandoning the Commission's scheme of reform. It proposed an alternative scheme which the Government rejected. The Government issued a Consultation Paper in December 2005 in an effort to build a new consensus. The opportunity to comment closed on 1 March 2006.

DISTRESS FOR RENT

3.18      The Commission's report on this subject was published in 1991.^[10] It recommended the abolition of distress for unpaid rent for both commercial and residential tenancies.
3.19      In March 2003, the Lord Chancellor's Department published a White Paper as part of its Enforcement Review.^[11] This confirmed the Government's acceptance of the Commission's recommendations to abolish distress for rent as it concerns residential tenancies, but proposed its reform rather than abolition in commercial cases. A Bill will be introduced when Parliamentary time allows.

FRAUD

3.20      In July 2002 the Law Commission published a report and draft Bill on the law of Fraud.^[12] We recommended the introduction of a single general offence of fraud that could be committed in one of three ways to replace the current patchwork of offences. We believe that a single clearly defined 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.
3.21      We also recommended that the common law offence of conspiracy to defraud should be abolished and that there should be 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.
3.22      A Fraud Bill was introduced in the House of Lords in May 2005 which included a provision creating a new offence of non-corporate fraudulent trading. Amongst other things, the Bill proposes that the existing eight deception offences in the Theft Acts should be replaced with a general offence of fraud. It will produce a clear and robust framework which is flexible enough to deal with increasingly sophisticated kinds of fraud. However, the Bill contains no provision for abolishing the offence of conspiracy to defraud.

EFFECTIVE PROSECUTION OF MULTIPLE OFFENDING

3.23      The Fraud Bill also addresses a recommendation from our report on The Effective Prosecution of Multiple Offending.^[13] This was that the offence of fraudulent trading by companies contrary to section 458 of the Companies Act 1985 should be extended to non-corporate fraudulent traders, irrespective of whether they are in any relationship such as a partnership.
3.24      We are pleased to note that another recommendation regarding the introduction of a two-stage trial process in certain multiple offending cases has been legislated for in the Domestic Violence Crime and Victims Act. However a commencement date has not yet been set.

LIMITATION OF ACTIONS

3.25      In 2001 we published a report and draft Bill on Limitation of Actions, in which we recommended replacing the many complex rules by a single "core regime". Most claimants would have three years to bring an action, starting 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.
3.26      In personal injury cases, we recommended that the court should have a broad discretion to allow late claims at any stage. We thought this was particularly important in sex abuse cases where, at present, adults must bring claims within six years, and those abused as children must bring claims before their 24^th birthday. Victims may often take longer to recover sufficiently from the trauma to consider bringing proceedings. During the year, another case arose which illustrates the potential use of such a discretion.^[14] The victim of an attempted rape was advised that it would be pointless to try to bring an action against her attacker because he had no money. When he was released on parole, the attacker won the lottery. His victim attempted to recover compensation against him for the attempted rape that had taken place 17 years earlier, but failed because of the fixed 6-year limitation period. We believe that this is excessively rigid, and that the courts should have the discretion to allow late claims. The Court of Appeal expressed its dismay that our report had not been implemented,^[15] as it has done on a previous occasion.^[16]
3.27      In July 2002 the DCA 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".^[17] We receive many enquiries about whether there has been any more progress on implementing this report, and hope that legislative time will be found soon.

OFFENCES AGAINST THE PERSON

3.28      Twelve years ago the Law Commission published a report and draft Bill recommending an overhaul of the current legislation, which dates back to Offences Against the Person Act 1861.^[18] In 1997 the Home Office partially accepted these recommendations in principle. In 1998 the Home Office published a consultation paper^[19] setting out their initial proposals for reforming the law in this area, based on the Commission's report. More recently, the Court of Appeal has referred to the "need for radical reform" of section 20 of the 1861 Act.^[20]
3.29      One of the report's recommendations, namely that common assault should be an arrestable offence, has been implemented by the Domestic Violence Crime and Victims Act 2004. The Government has said that it plans to legislate on the other recommendations that it has accepted in principle when Parliamentary time allows.

PERPETUITIES AND ACCUMULATIONS

3.30      The Government announced its acceptance of the Commission's report on this topic in an answer to a Parliamentary Question in March 2001. However, Parliamentary time has not yet been found for it. We were disappointed to learn that despite a peer being willing to take the Bill through as a Private Peer's Bill, the Government was unable to find time in the Parliamentary timetable in this session. We have noted the possibility that the recommendations might be suitable for enactment by means of an order under the Legislative and Regulatory Reform Bill.

THIRD PARTIES' RIGHTS AGAINST INSURERS

3.31      In 2002, we published a report jointly with the Scottish Law Commission to strengthen the rights of claimants to seek a remedy against their defendant's insurer where the defendant was in financial difficulties.^[21] In July 2002 DCA accepted our recommendations in principle. Then in September 2002 it issued a consultation paper proposing to implement our report by way of Regulatory Reform Order (RRO).^[22] In February 2004 DCA published an analysis of responses, which reported that the Law Officers had advised that only certain recommendations could be carried out by way of an RRO. The others did not fall within the scope of the Regulatory Reform Act 2001.^[23] We hope that a slot on the legislative programme will be found soon.

Reports awaiting Government decisions

3.32      In February 2005, the Ministerial Committee agreed that Government Departments should be in a position to say how they are going to respond within six months of receiving recommendations from the Law Commission. If, after two and a half years, the Department has still not reached any conclusions, the Committee will stop pursuing them. As stated above, we are currently awaiting a response from the Government on 13 of our reports.

COMPANY SECURITY INTERESTS

3.33      In August 2005 we published a final report and draft legislation on Company Security Interests recommending major reforms.^[24] The DTI is currently considering whether to introduce an amendment to the Company Law Reform Bill now going through Parliament, to take a power that would enable the Secretary of State to make regulations to implement a reduced version of our scheme. We understand that the DTI intends to circulate draft regulations for consultation over the summer recess. We await the Government's decision with interest.

DAMAGES FOR PERSONAL INJURY

3.34      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]
3.35      Some of our recommendations have been implemented. 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 Lord Chancellor's Department 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]
3.36      On the remaining recommendations however, we still await a decision. In November 1999, the Government announced that it would undertake a comprehensive assessment of their individual and aggregate effects. In 2004, we were told that a consultation paper would be issued shortly. The current position is that DCA has indicated that a consultation paper will be published in summer 2006. It is extremely disappointing that after six years the Government has not been able to proceed even to the stage of issuing a consultation paper on whether to implement our proposals.

THE FORFEITURE RULE AND THE LAW OF SUCCESSION

3.37      In July 2005 we published a final report and draft Bill to solve problems with both intestacy and wills. We recommended that where a person forfeits the inheritance of property because they kill the person from whom they would inherit, the property should be distributed as if the killer had died. The effect is that property will normally pass to the next in line, such as the grandchildren. Our recommendations would also apply where the heir voluntarily disclaims the property.
3.38      We were expecting an interim response from the DCA in early 2006, but have not yet heard anything.

PRE-JUDGMENT INTEREST ON DEBTS AND DAMAGES

3.39      Our report was published in February 2004.^[31] It recommended giving the courts more guidance on interest rates, by specifying a rate each year, set at 1 per cent above base rate. We also thought that the courts should have the power to award compound interest in appropriate circumstances. We received an interim response from the Government in August 2004, but have not yet heard whether our recommendations will be accepted.

UNFAIR CONTRACT TERMS

3.40      The present law on unfair contract terms is unacceptably confusing. It is covered by two pieces of legislation, containing inconsistent and overlapping provisions. In February 2005 we published a report and draft Bill jointly with the Scottish Law Commission.^[32] The draft Bill rewrites both laws as a single regime, in a way that is much more accessible to consumer and business advisers. The report also recommended improving protection for the smallest and most vulnerable businesses, employing nine or fewer staff.
3.41      We expect to receive an official response from the DTI in the near future stating whether this report has been accepted in principle.

Reports not implemented

3.42      The Law Commission was invited to review the law on Compulsory Purchase Orders by the Department of Environment, Transport and the Regions (DETR, subsequently ODPM and now the Department for Communities and Local Government) and the Lord Chancellor's Department (now DCA) following a recommendation to the DETR from an Advisory Group. The Advisory Group described the law on compulsory purchase compensation and procedure as "an unwieldy and lumbering creature".
3.43      The Law Commission published its report on Compulsory Purchase (Compensation) in December 2003^[33] and its final report on Compulsory Purchase (Procedure) in December 2004.^[34]
3.44      In December 2005 ODPM issued a formal response to the Commission's recommendations. Government accepted that it would like to have a single simple compulsory purchase code expressed in modern English but considered that finding legislative time in order to achieve such an objective needed to be balanced against its many other priorities. The response went on to state that in view of certain changes "providing immediate and tangible improvements" having been introduced in the Planing and Compulsory Purchase Act 2004 so recently, "implementing the Law Commission's proposals is not a practicable proposition for the foreseeable future".
3.45      Government recognised in its response that the complexities of the existing legislation "have contributed nonetheless to the reluctance of many authorities to make full and effective use of their compulsory purchase powers to facilitate land assembly for regeneration and major infrastructure projects". In the circumstances, the Commission is disappointed that the recommendations made in the course of its important three year project should not be given greater legislative priority.

PARTIAL DEFENCES TO MURDER

3.46      In August 2004 the Commission published its report on Partial Defences to Murder,^[35] which recommended that the law on provocation should be retained, but in a narrowed form. We proposed that provocation could be pleaded by those who either had a justified sense of being seriously wronged, or feared serious violence towards them or another, provided that a person of ordinary tolerance and self restraint in the circumstances might have reacted in the same or a similar way. Consequently, we did not recommend that there should be a specific partial defence to murder based on the excessive use of force in self-defence.
3.47      In July 2005 the then Home Secretary announced a comprehensive review of the law of murder. This has superseded the recommendations on Partial Defences to Murder. See para 5.1 for further information on the wider review.

LAND, VALUATION AND HOUSING TRIBUNALS: THE FUTURE

3.48      In last year's report we omitted to mention that following the Government's White Paper Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243) published in July 2004, our recommendations for reform^[36] of the Land Valuation and Housing Tribunals have been superseded by the wider plans for reform in this area.

Note 1    For details of all reports that have not received a decision from the Government, or where a decision has been made but the report has not been implemented, see Appendix B.    [Back]

Note 2    The Execution of Deeds and Documents by or on behalf of Bodies Corporate (1998) Law Com No 258.    [Back]

Note 3    Mental Incapacity (1995) Law Com No 231.    [Back]

Note 4    Legislating the Criminal Code: Involuntary Manslaughter (1996), Law Com No 237.    [Back]

Note 5    Cm 6755.    [Back]

Note 6    (2004) Law Com No 289.    [Back]

Note 7    (2003) Law Com No 283, Scot Law Com No 192.    [Back]

Note 8    (1997) Law Com No 247.     [Back]

Note 9    Legislating the Criminal Code: Corruption, Law Com No 248.    [Back]

Note 10    Landlord and Tenant: Distress for Rent (1991) Law Com No 194.    [Back]

Note 11    Effective Enforcement Cm 5744. This followed a consultation exercise in May 2001 (Distress for Rent, Enforcement Review Consultation Paper No 5).    [Back]

Note 12    Fraud, Law Com No 276.    [Back]

Note 13    (2002) Law Com No 277.    [Back]

Note 14    See, for example, The Guardian and The Times, 13 February 2006.    [Back]

Note 15    A v Hoare [2006] EWCA Civ 395, paras 5 to 6.    [Back]

Note 16    KR v Bryn Alyn Community Ltd [2003] EWCA Civ 85 at para 100.    [Back]

Note 17    Hansard (HL), 16 July 2002, col 127.    [Back]

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

Note 19    Violence: Reforming the Offences against the Person Act 1861.    [Back]

Note 20    Cort [2003] 3 WLR 1300, 1304.    [Back]

Note 21    (2002) Law Com No 272, Scot Law Com No 184.    [Back]

Note 22    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 23    Department for Constitutional Affairs, Analysis of Responses to the Consultation Paper, Third Parties – Rights against Insurers February 2004. For a short summary of which proposals could be implemented by RRO, see last year’s Annual Report, pp 12-13.    [Back]

Note 24    Company Security Interests (2005), Law Com No 296.     [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 No 262. The Department of Health produced a consultation paper in September 2002 (The recovery of NHS costs in cases involving personal 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    Pre-Judgment Interest on Debts and Damages (2004), Law Com 287.    [Back]

Note 32    (2005) Law Com No 292, Scot Law Com No 199.    [Back]

Note 33    Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286.    [Back]

Note 34    Towards a Compulsory Purchase Code: (2) Procedure (2004) Law Com No 291.    [Back]

Note 35    (2004) Law Com No 290.    [Back]

Note 36    (2004) Law Com No 281.    [Back]