Posts Tagged ‘law reform’
Creating a Sentencing Code: proposals from the Law Commission
Way back in May 2016 I noted the publication of a Consultation by the Law Commission on the creation of a single code of law on sentencing for criminal offences. Well, the outcome of that consultation is now published. It is a great law reform effort and one that deserves to be implemented at the earliest opportunity.
To remind readers, the current law is so complicated that judges frequently get their sentencing decisions wrong. As the Commission itself noted:
The current law of sentencing is inefficient and lacks transparency. The law is incredibly complex and difficult to understand even for experienced judges and lawyers.
It is spread across a huge number of statutes, and is frequently amended. Worse, amendments are brought into force at different times for different cases. The result of this is that there are multiple versions of the law that could apply to any given case.
This makes it difficult, if not impossible at times, for practitioners and the courts to understand what the present law of sentencing procedure actually is.
This leads to delays, costly appeals and unlawful sentences.
There is near unanimity from legal practitioners, judges and academic lawyers that the law in this area is in urgent need of reform.
A new Sentencing Code has three key benefits:
- it makes the law simpler and easier to use;
- it increases public confidence in the criminal justice system; and
- it increases the efficiency of the sentencing process.
The benefits claimed for the new code are that it would:
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help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions and remove the need to refer to historic legislation;
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save up to £256 million over the next decade by avoiding unnecessary appeals and reducing delays in sentencing clogging up the court system;
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rewrite the law in modern language, improving public confidence and allowing non-lawyers to understand sentencing more easily;
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remove the unnecessary layers of historic legislation; and
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allow judges to use the modern sentencing powers for both current and historic cases, making cases simpler to deal with and ensuring justice is better served.
It is hoped that the Sentencing Code could be enacted as a Consolidation Bill which would take up far less Parliamentary time than a normal bill. Progress ought to be made on this during 2019, if the political will is there.
For further information see https://www.lawcom.gov.uk/project/sentencing-code/ which provides links to the Report and the Draft Code
The work of the Law Commission: Justice Committee inquiry 2018
In the summer 2018, the House of Commons Justice Committee announced that it would start an inquiry into the work of the Law Commission. To date it has received oral and written evidence from the Law Commission.
The evidence shows that over the last 8 years, the core funding for the work of the Commission has been cut by over 50%.
To make up the short-fall, the Commission has been undertaking a number of projects funded by Government Departments, which fall outside the programme of Law Reform which the Commission had itself determined and agreed with the Government.
In oral evidence, the then Chair, Sir David Bean made the point that, while funded projects were important, it could mean that other important projects would have to be dropped or postponed, because they did not fit the political priorities of the day.
The final outcome of the inquiry is currently awaited.
The written and oral evidence is available at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/work-of-the-law-commission-17-19/publications/
Law Commission: 13th Programme announced
After delay resulting from the calling of the General Election in May 2017, the Law Commission has just (14 December 2017) announced its latest programme of law reform projects which it intends to take forward over the next three years.
The list is an interesting one containing a wide variety of topics.
A number of these can be see to be a response to technological change. Projects on Automated Vehicles, Electronic Signatures, Intermediated Securities or Smart Contracts would not have been on such a list, even three years ago (when the 12th Programme was published).
The general area of property law attracts a number of projects. These include: Modernising Trust Law for a Global Britain, Registered Land and Chancel Repair Liability, Museum Collections, Residential Leasehold, and Unfair Terms in Residential Leasehold.
There is a number of projects that will examine how current processes, which affect the public, might be reformed. These include: Administrative Review, Employment Law Hearing Structures, and Simplifying the Immigration Rules.
Controversial issues concerning both the start and end of life are reflected in proposals to review Surrogacy and A Modern Framework for Disposing of the Dead.
In addition to these new projects, the Law Commission will continue to work on items brought over from the 12th Programme of work, including work on Sentencing, and Search warrants.
The Law Commission also lists a number of other topics which is considered for inclusion but which do not appear in the current programme.
Further details of all these projects can be found at https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/
Implementation of Law Commission reports
As a former law Commissioner, I retain an interest in the progress being made with the implementation of Law Commission reports. Under the Law Commission Act 2009, the Government is required to publish an Annual Report setting out progress with the implementarion programme. All went swimmingly up to March 2015 – annual reports were duly published, as required.
But nothing in 2016. The Government has now (January 2017) published the sixth report on implementation, setting out progress between January 2015 and January 2016 – but ‘updated to the point of publication’ – i.e. including details of what happened during 2016.
So what happens now? It seems unlikely that there will be a further formal report until early 2018. Reports every other year might actually make good sense. But that is not what the legislation requires. So long as the legal requirement for an annual report is on the statute book Government should take note of it.
Turning to the content of the report itself, if has to be said that, while no reports from the Law Commission have been definitively rejected by the Government, the list of reports still under consideration by the Government is considerably longer than the list of reports implemented either wholly or in part.
The main success stories were in the areas of consumer rights, contempt of court by jurors, and the rights of third parties against insurers.
Looking to the future, the administrative burden that will inevitably be associated with the Brexit negotiation is likely to result in even slower implementation of reforms which – by definition – will have lower political prioroty.
For details of the Implementarion report, see https://www.gov.uk/government/publications/report-on-the-implementation-of-law-commission-proposals-january-2015-to-january-2016
Implementation of Law Commission Reports
The 5th review of Implementation of Law Commission Reports was published in March 2015. This states that the number of Law Commission reports on which no further steps towards implementation are being taken has been reduce to 1 – on compensation for substandard administrative action. A reasonable number of reports have been implemented wholly or in part, while a longer list of reports is still subject to further consideration in Government.
While implementation of Law Commission reports will never reach 100%, there are indications that the success rate is improving slowly.
Law Commission – 12th Programme of Law Reform
The Law Commission published its 12th Programme of law reform in July 2014.
Nine projects have been accepted into the programme.
Two of these are specific to the Welsh Government:
- The form and accessibility of the law applicable in Wales: an Advice to Government, considering ways in which the existing legislation can be simplified and made more accessible, and how future legislation could reduce problems.
- Planning and development control in Wales: a law reform project to recommend a simplified and modernised planning system for Wales.
In terms of potential impact on the English Legal system, the most significant it a project on
- Sentencing procedure; a law reform project to recommend a single sentencing statute.
The rest of the projects relate to important areas of substantive law.
- Mental capacity and detention, a project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes. This follows sharp criticism of the present state of the law by Justices of the Supreme Court
- Land registration, a project that will comprise a wide-ranging review of the Land Registration Act 2002 (itself a Law Coimmission Act), with a view to amendment where elements of the Act could be improved in light of experience with its operation.
- Wills, a law reform project to review the law of wills, focusing on mental capacity and will making, formalities that dictate how a will should be written and signed, and how mistakes in wills can be corrected.
- Bills of sale, is a law reform review of the law relating to “bills of sale” loans, including logbook loans.
There are also two scoping exercises designed to see whether detailed proposals for law reform should be developed. These are:
- Firearms: a scoping exercise to consider the enactment of a single statute containing modified and simplified versions of all firearms offence.
- Protecting consumer prepayments on retailer insolvency: a scoping review to assess the scale of the problem and consider was to increase protection for consumers.
In addition, the Law Commission will continue to work on projects brought forward from the 11th programme that are still to be completed.
Details can be found at http://lawcommission.justice.gov.uk/areas/12th-programme.htm
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 