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You are here: BAILII >> Databases >> The Law Commission >> Law Commission's 39th Annual Report 2004/05 (Report) [2005] EWLC 294(3) (14 June 2005) URL: http://www.bailii.org/ew/other/EWLC/2005/294(3).html Cite as: [2005] EWLC 294(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. 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 A records 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      In the last annual reporting period, that is between 1 April 2003 and the end of March 2004, the Law Commission published seven law reform reports. In the same period, recommendations from seven Law Commission reports were enacted by Parliament.

3.5      In March 2004:

(1) 17 law reform reports that had been accepted by the Government had not yet been implemented by legislation

(2) 13 other reports still awaited decisions by the Government

3.6      Between 1 April 2004 and the end of March 2005 the Law Commission published four law reform reports. In the same period, recommendations from four Law Commission reports were enacted by Parliament.

3.1
 


3.7      In March 2005:

(1) 16 law reform reports that have been accepted by the Government still await implementation

(2) 13 other reports still await decisions by the Government^[1]



3.8      Diagram 3.1 above gives a seven-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

BUSINESS TENANCIES

3.9      A Regulatory Reform Order^[2] came into effect on 1 June 2004. The Order implements a package of reforms based substantially on our report on business tenancies^[3] and amends the provisions of Part II of the Landlord and Tenant Act 1954. RROs are made under the Regulatory Reform Act 2001 and are designed to remove burdens on businesses and others carrying out activities.

THE EFFECTIVE PROSECUTION OF MULTIPLE OFFENDING

3.10      The Law Commission published a report in October 2002.^[4] We recommended that where a defendant has committed multiple similar offences, there should be a two stage trial procedure. The first stage of the trial would take place before judge and jury in the normal way on an indictment containing specimen counts. In the event of conviction on one or more counts, the second stage of the trial might follow, in which the defendant would be tried by a judge alone in respect of any scheduled offences linked to a specimen count of which the defendant has been convicted. The Domestic Violence, Crime and Victims Act 2004 contains provisions which substantially reproduce the scheme of our recommendations.

EXECUTION OF DEEDS AND DOCUMENTS

3.11      The Law Commission report, The Execution of Deeds and Documents by or on behalf of Bodies Corporate,^[5] is being implemented through a Regulatory Reform Order (RRO), rather than by primary legislation. The report, published in 1998, aimed to simplify the formal requirements for deeds and company documents.^[6] The order has passed final scrutiny and now awaits the formality of Parliamentary approval. We anticipate that it will be in force by Autumn 2005.

NON-ACCIDENTAL DEATH OF OR SERIOUS INJURY TO CHILDREN

3.12      In September 2003 the Law Commission published a report and draft Bill relating to criminal liability where a child is non-accidentally killed or seriously injured.^[7] The project was concerned with cases where a lack of evidence means that the court is unable to identify which of a limited number of defendants committed the crime, but where it is apparent that one or more of them must have done so.

3.13      The report recommended that there should be an aggravated form of the existing offence of child cruelty, punishable by a maximum term of imprisonment of fourteen years, together with a new offence of failing to protect a child, punishable by a maximum term of imprisonment of seven years. It also made recommendations for procedural and evidential reforms. The Domestic Violence, Crime and Victims Act 2004 contains provisions which draw on the concepts in our report and the structure of our recommendations. In important respects, however, the provisions depart from our recommendations.

MENTAL INCAPACITY

3.14      The Mental Capacity Act 2005 was enacted in April 2005. Although just outside the reporting period of this report, we have included it here as it falls so close to the reporting period. The Act implements the majority of the recommendations in the Commission's 1995 report and draft Bill on this topic.^[8] The Commission assisted with the passage of the Bill through Parliament.

Reports awaiting implementation

3.15      The following paragraphs set out the latest position on our reports still awaiting implementation. It is a source of concern that despite the Government having accepted our recommendations, in some cases a decade ago, it has not proved possible for Parliamentary time to be found to bring forward the necessary legislation. We have been discussing our concerns with the Department for Constitutional Affairs (DCA), the Cabinet Office and the Ministerial Committee and we hope to be able to report next year that progress has been made.

AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES

3.16      We published a report on this in 1997.^[9] In November 1999 the DCA said that it accepted our recommendations on aggravated and restitutionary damages and would legislate when a suitable opportunity arose. In practice, such an opportunity is unlikely to arise before a decision is taken on our other damages reports (see paras 3.34 – 3.37).

COMPANY LAW

3.17      We have published reports on Directors' Duties^[10] and Shareholder Remedies.^[11] Both were endorsed by the Company Law Review Steering Group.^[12] In May 2004, the Department of Trade and Industry (DTI) published a consultation document, which confirmed that the DTI intends to draft a new Companies Bill.^[13] The Bill will implement recommendations from the Law Commission on a statement of directors' duties and place so-called "derivative actions" by shareholders on a statutory footing. A White Paper was produced in March 2005, including draft clauses on a number of the areas covered by our recommendations.

CORRUPTION OFFENCES

3.18      In 1998 the Law Commission published a report^[14] and draft Bill which recommended the creation of four new offences to replace those in the Prevention of Corruption Acts 1889-1916. The Home Office published its own draft Bill (Cm 5777) in March 2003, giving broad effect to the Commission's recommendations. The Joint Committee was critical of a number of aspects of the draft Bill, however the Home Office has announced it will take into account some of the Joint Committee's recommendations and introduce a revised Bill when Parliamentary time allows.

DISTRESS FOR RENT

3.19      The Commission's report on this subject was published in 1991.^[15] It recommended the abolition of distress for unpaid rent for both commercial and residential tenancies.

3.20      In March 2003, the Lord Chancellor's Department published a White Paper as part of its Enforcement Review.^[16] 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. The Commission understands that the Courts and Tribunals Bill will contain provisions for distress for rent along these lines. This Bill will be introduced when Parliamentary time allows

FRAUD

3.21      In July 2002 the Law Commission published a report and draft Bill on the law of Fraud.^[17] It 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. The Commission believes 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.

3.22      The Commission 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.

3.23      In April 2004 the Home Office issued a paper seeking views on its proposals to reform the law of fraud.^[18] The proposals in that paper reflected the Law Commission's recommendations. In October 2004 Baroness Scotland of Asthal QC announced that the Government intended to take the proposals forward in a Fraud Bill when Parliamentary time allows. The Government believes that the offence of conspiracy to defraud should be retained, but in other respects, has accepted the substance of the Commission's recommendations.

FRAUDULENT TRADING

3.24      One recommendation in our report on The Effective Prosecution of Multiple Offending^[19] 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. In October 2004 Baroness Scotland of Asthal QC announced that the Home Office proposes to include within a future Fraud Bill a provision creating a new offence of non-corporate fraudulent trading.

INVOLUNTARY MANSLAUGHTER

3.25      In 1996 the Law Commission published a report^[20] 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 based on our recommendation on creating a new offence of corporate killing. The Bill proposes a new criminal offence of corporate manslaughter that will apply when someone has been killed because the senior management of a corporation is in gross breach of a duty to take reasonable care for the safety of employees or others. The period of consultation lasts until 12 June 2005.

LIMITATION OF ACTIONS

3.26      In 2001 we published a report and draft Bill on Limitation of Actions, in which we recommended replacing the many complex rules within 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.

3.27      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".^[21] We receive many enquiries about whether there has been any more progress on implementing this report.

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.^[22] In 1998 the Home Office published a consultation paper^[23] 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.^[24]

PERPETUITIES AND ACCUMULATIONS

3.29      DCA announced its acceptance of the Commission's report^[25] on this topic in an answer to a Parliamentary Question in March 2001. Since then, attempts to implement the report in part by way of a regulatory reform order and Private Member's Handout Bill have been unsuccessful. The preferred method of implementation is now a Private Peers' Bill which it is hoped will be introduced during 2005.

RESPONSIBILITY FOR STATE AND CONDITION OF PROPERTY

3.30      The Law Commission's report on Responsibility for State and Condition of Property was published in 1996.^[26] The recommendations in that report concerned private law rights, but were dependent upon the criminal enforcement sanctions that existed at that time in respect of unfit properties.^[27]

3.31      The Housing Act 2004^[28] contains provision for a new Housing Health and Safety System. This sets out new criminal sanctions for unfit properties and repeals section 604 of the Housing Act 1985. The Office of the Deputy Prime Minister will reconsider the Law Commission's recommendations in light of the Housing Act.

Reports awaiting Government decisions

3.32      In February 2005, the Ministerial Committee agreed that Government Departments should be in a position to say intelligently 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^[29], we are currently awaiting a response from the Government on 13 of our reports.

COMPULSORY PURCHASE

3.33      The Law Commission published its report on Compulsory Purchase (Compensation) in December 2003^[30] and its report on Compulsory Purchase (Procedure) in December 2004.^[31] The Office of the Deputy Prime Minister has indicated that it intends to prepare a formal response dealing with both reports.

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,^[32] Damages for Non-Pecuniary Loss,^[33] Damages for Medical, Nursing and Other Expenses^[34] and Claims for Wrongful Death.^[35]

3.35      Some of our recommendations have been implemented. Most notably, in February 2000, the Court of Appeal increased the level of awards for non-pecuniary loss in cases of severe injury.^[36] 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.^[37]

3.36      However, the remaining recommendations await a decision on implementation. In November 1999, the Government announced that it had carefully considered our reports and would undertake a comprehensive assessment of their individual and aggregate effects. In last year's Annual Report, we reported, that

this work is nearing completion. The Department for Constitutional Affairs intends to issue a Consultation Paper on the subject in summer 2004.

3.37      No consultation paper has been published.

PARTIAL DEFENCES TO MURDER

3.38      In August 2004 the Commission published its report on Partial Defences to Murder,^[38] 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.

3.39      The report also recommended that there should be a comprehensive review of the law of murder. In October 2004 the Home Secretary announced that the Government had accepted that there should be such a review.

PARTNERSHIP LAW

3.40      Our joint report with the Scottish Law Commission on Partnership Law was published in November 2003.^[39] 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.

3.41      The Department for Trade and Industry (DTI) issued a consultation paper as part of its regulatory impact assessment of our proposals in May 2004. That consultation ended in July 2004. We are awaiting Ministers' decisions in light of that consultation.

PRE-JUDGMENT INTEREST ON DEBTS AND DAMAGES

3.42      Our report was published in February 2004.^[40] It recommended giving the courts more guidance on interest rates, by specifying a rate each year, set at 1 per cent above base. We also thought that the courts should have the power to award compound interest in appropriate circumstances. The Government has not yet indicated whether it accepts these recommendations.

PUBLICATION OF LOCAL AUTHORITY REPORTS

3.43      Our report "In the Public Interest: Publication of Local Authority Inquiry Reports" was published in July 2004.^[41] 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 continues to consider its response.

THIRD PARTIES' RIGHTS AGAINST INSURERS

3.44      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.^[42] 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).^[43] 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.^[44] There are no further developments to report.

UNFAIR CONTRACT TERMS

3.45      We published a report and draft Bill jointly with the Scottish Law Commission in February 2005.^[45]

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 A.    [Back]

Note 2    The Regulatory Reform (Business Tenancies) (England and Wales) Order 2003.    [Back]

Note 3    Landlord and Tenant: Business Tenancies – A Periodic Review of the Landlord and Tenant Act 1954 Part II (1992) Law Com No 208.    [Back]

Note 4    The Effective Prosecution of Multiple Offending (2002), Law Com No 277.    [Back]

Note 5    (1998) Law Com No 258.    [Back]

Note 6    For the Government’s response, see the Lord Chancellor’s Department documentThe Execution of Deeds and Documents: A Consultation Paper on the implementation of the Law Commission’s report by way of a Regulatory Reform Order, September 2002; and the Department for Constitutional Affairs documentResponse to the Consultation Paper, The Execution of Deeds and Documents, January 2004.    [Back]

Note 7    Children: Their Non-accidental Death or Serious Injury (Criminal Trials) (2003), Law Com No 282.    [Back]

Note 8    Mental Incapacity (1995) Law Com No 231.    [Back]

Note 9    (1997) Law Com No 247.     [Back]

Note 10    Company Directors: Regulating Conflicts of Interest and Formulating a Statement of Duties (1999) Law Com No 261, Scot Law Com No 173.    [Back]

Note 11    (1997) Law Com No 246.    [Back]

Note 12    Final Report, DTI, June 2001.    [Back]

Note 13    DTI, Company Law – Flexibility and Accessibility: A Consultative Document, May 2004.    [Back]

Note 14    Legislating the Criminal Code: Corruption, Law Com No 248.    [Back]

Note 15    Landlord and Tenant: Distress for Rent (1991) Law Com No 194.    [Back]

Note 16    Effective Enforcement Cm 5744. This followed a consultation exercise in May 2001 (Distress for Rent, Enforcement Review Consultation Paper No 5).    [Back]

Note 17    Fraud, Law Com No 276.    [Back]

Note 18    Fraud Law Reform: Consultation on Proposals for Legislation    [Back]

Note 19    (2002) Law Com No 277.    [Back]

Note 20    Legislating the Criminal Code: Involuntary Manslaughter (1996), Law Com No 237.    [Back]

Note 21    Hansard (HL), 16 July 2002, col 127.    [Back]

Note 22    Legislating the Criminal Code: Offences Against the Person and General Principles (1993), Law Com No 218.    [Back]

Note 23    Violence: Reforming the Offences against the Person Act 1861.    [Back]

Note 24    Cort [2003] 3 WLR 1300, 1304.    [Back]

Note 25    The Rules Against Perpetuities and Excessive Accumulations (1998) Law Com No 251.    [Back]

Note 26    Landlord and Tenant: Responsibility for the State and Condition of Property (1996) Law Com No 238.    [Back]

Note 27    Housing Act 1985, s 604 which defines fitness for human habitation.    [Back]

Note 28    Which received Royal Assent on 18 November 2004.    [Back]

Note 29    Para 3.6(2).    [Back]

Note 30    Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286.    [Back]

Note 31    Towards a Compulsory Purchase Code: (2) Procedure (2004) Law Com No 291.    [Back]

Note 32    (1998) Law Com No 249.    [Back]

Note 33    (1999) Law Com No 257.    [Back]

Note 34    Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits, (1999) Law Com No 262.     [Back]

Note 35    (1999) Law Com No 263.    [Back]

Note 36    Heil v Rankin [2000] 3 WLR 117.     [Back]

Note 37    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 38    (2004) Law Com No 290.    [Back]

Note 39    (2003) Law Com No 283, Scot Law Com No 192.    [Back]

Note 40    Pre-Judgment Interest on Debts and Damages (2004), Law Com 287.    [Back]

Note 41    (2004) Law Com No 289.    [Back]

Note 42    (2002) Law Com No 272, Scot Law Com No 184.    [Back]

Note 43    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 44    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 45    (2005) Law Com No 292, Scot Law Com No 199.    [Back]