Patience is a virtue
There is no secret recipe to getting reform proposals through government, but solicitors can play a major role, explains Professor Nick Hopkins, law commissioner for property, family, and trust law
Q. How does the Law Commission decide what to work on?
Work comes to us in two different ways. Some of the work we do comes to us by a so-called ministerial reference so at any time a minister may ask us to consider taking on law reform work in a particular area.
We also have our programmes of law reform, which we decide every three years or so. The latest public consultation was last summer. Out of the 1,300 responses we received, we had around 220 unique law reform suggestions so we’re now in the process of turning those suggestions into what becomes our next programme.
What we look at in making that decision is how much of a problem has been identified with the law. There could be a problem because it affects lots of people or it doesn’t affect as many people but it affects them in a very significant way. For example, we asked people whether leasehold law was an area we should be looking at. That affects everybody who owns their home on a long lease, so a few million people potentially. We also asked about surrogacy. That doesn’t affect as many people but the impact it has on them is extremely significant because the current law can leave children born through surrogacy agreements, as well as the parents and surrogate mothers, in a very uncertain position.
We also consider whether it’s an area that we as an independent non-political body and a group of lawyers are best placed to resolve, whether it’s a suitable question for us to look at; we also have to take into account practicalities such as resources.
Q. What is the best part about being a law commissioner and why?
That opportunity to create recommendations that ultimately are going to make life a lot better for people who are affected by the laws you’re looking at. We’re currently approaching the consultation stage on our wills work. The area of wills hasn’t been updated since the Victorian times and it’s estimated that only about 40 per cent of people have a will. Because of complexities in the law the validity of those wills may not be as assured as it could be. We’re dealing with laws that don’t reflect modern understanding of capacity that weren’t designed for a period where we outlive our minds in some instances. You have an opportunity there to produce a piece of legislation that can impact on everyone in a very positive way.
Q. What are the biggest challenges a law commissioner faces?
On top of that we work to a protocol with government so before we start work on a project we have to have an assurance by the minister that there is a serious intention to take forward reform.
The biggest challenge we have is that we’re looking at what the law says now and we’re looking at a range of possibilities of how the law will be reformed. We’re trying to find that recommendation that’s going to have consensus among the people most directly affected by the law, and if legislation is required, whether it can be implemented.
Q. Can it be frustrating when the government doesn’t implement your recommendations?
Historically, if you look at our overall record as a commission, about two-thirds of the reports that are published have been implemented in whole or in part so we’ve got quite a good implementation rate. The protocol should help that because it means that we’re not going to start work in an area where there’s a settled government policy.
I don’t find it frustrating if the government doesn’t because we’ve put forward our independent view. It’s part and parcel of being independent that we can’t decide whether the government accepts our recommendations. Sometimes governments act for other reasons. The flip side of the coin of being independent is that the government may decide it’s not going to accept your recommendations.
As a law reformer, you have to be both pragmatic and patient. On easements, you could have looked at that and said, ‘you published that in 2011 then nothing happened for a long time’. In the Queen’s Speech last year, it was announced that the government would bring forward a bill to implement our work on easements and that was repeated in the recent housing white paper.
Recently the work the criminal law team did on firearms was picked up for implementation immediately. Work within the property, family, and trusts team on social investment by charities was implemented very quickly as well.
Q. Is there a secret recipe to getting a proposal through government?
No. There are so many variables that can affect whether and when a recommendation is implemented. Part of what will make a proposal attractive is the fact that you have built consensus around those most directly affected and so what you’re proposing to the government in your report is a change that people want.
Because the minister or the government may not be the same as when the project started, government priorities may change; ministerial priorities may change. That can be for or against what we’re recommending.
Sometimes if our bill is considered by the house authorities to be uncontentious then the Law Commission’s special procedure can be used. This doesn’t reduce the amount of scrutiny the bill has but it reduces the amount of time the bill needs on the floor of the house. It means it can go through without being part of a programme bill so it’s extra legislation.
Because of the demands on parliamentary time, if your recommendation doesn’t need parliamentary legislation then that increases your chances of it being implemented. As long as the government accepts our proposals it doesn’t have to find the legislative vehicle. For example, part of our report on matrimonial property needs and agreements was a recommendation of advice being given to judges and to parties on the meaning of needs on a divorce so that didn’t need legislation. It wasn’t advice we were writing. That has been implemented by the guidance being issued.
Q. What areas of property law reform are in most need of reform and why?
Leasehold, which we’ve highlighted in our 13th programme consultation. Residential leasehold was one of our biggest postbags. What people had said to us came from a range of groups – some of them around the terms of a lease such as ground rents but also matters relating to the landlord-tenant relationship, for example the really complex enfranchisement legislation that we have as well as rights to manage, and then a whole number of miscellaneous areas, such as commonhold. The fact is that we have commonhold legislation on the books that hasn’t taken off practically. We’ve heard from stakeholders who would like to see commonhold looked at to see if that is ready to work.
As far as commercial leasehold is concerned, what we hear from stakeholders is that the legislation is often not working to help business, that to some extent it’s the legislation which was set up with particular policies in mind. They question whether those policies actually reflect modern needs, and also some of the detailed operation of the legislation. If it’s not working for business and making it more expensive, for example, then that suggests the legislation needs to be looked at again.
Q. What role can solicitors play in shaping law reform?
They can really help by responding to our consultation papers because the responses have a direct impact on the recommendations we make and our work on easements is a really good example of that. If you look back at our consultation [Easements, Covenants and Profits a Prendre] and our final report, we changed our mind quite significantly because of the responses we had.
Q. Why should solicitors consider a career here?
That’s a question you ought to ask some of our lawyers. However, what they get is the opportunity to shape law reform, to engage people who are directly affected by the areas of law that they’re working in, and to help formulate the policy.
Matthew Rogers is a reporter at Solicitors Journal