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You are here: BAILII >> Databases >> The Law Commission >> Protocol between the Lord Chancellor (on behalf of the Government) and the Law Commission [2010] EWLC 321 (29 March 2010) URL: http://www.bailii.org/ew/other/EWLC/2010/321.html Cite as: [2010] EWLC 321 |
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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
ii
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
iii
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.
4
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.
2
(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.
3
(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.
4
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.
5
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
6