Annual Report 2016 -17 Annual Report 2016 Law Com No 378 Law Commission Annual Report 2016-17 Law Com No 378 The Law Commission Annual Report 2016-17 (Law Com No 378) The Fifty First Annual Report of the Law Commission Presented to Parliament pursuant to section 3(3) of the Law Commissions Act 1965 Ordered by the House of Commons to be printed on 14 December 2017 HC 639 © Crown copyright 2017 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/government/publications Any enquiries regarding this publication should be sent to us at [email protected] ISBN 978-1-5286-0145-0 ID CCS1217559096 12/17 Printed on paper containing 75% recycled fibre content minimum Printed in the UK by the APS Group on behalf of the Controller of Her Majesty’s Stationery Office Law Commission Annual Report 2016-17 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. This annual report covers the period 1 April 2016 to 31 March 2017, although we have also included references beyond the reporting period, up to and including 30 October 2017 when the terms of this report were agreed. Law Commission staff, Chief Executive and Commissioners at our London office Contents Chairman’s introduction 1 Chief Executive’s comment 5 Part One: Who we are and what we do 7 Feature: Bronwen Maddox, non-executive board member 12 Part Two: Review of our work for 2016-17 13 Commercial and common law 14 Feature: Intellectual Property (Unjustified Threats) Act 2017 18 Criminal law 20 Feature: Sentencing code 24 Property, family and trust law 26 Feature: Charity law reform 28 Public law and Welsh law 30 Feature: Form and accessibility of the law applicable in Wales 32 Statute law 33 Part Three: Implementation of Law Commission law reform reports 2016-17 34 Reports implemented 35 Reports in the process of being implemented 37 Reports awaiting implementation 38 Reports awaiting a Government decision 41 Other reports and scoping papers 49 Part Four: How we work 50 Feature: The Scarman Lecture 58 Part Five: Our people and corporate matters 60 Appendix A: Implementation status of Law Commission law reform reports 67 Appendix B: The cost of the Commission 78 Appendix C: Our business plan priorities for 2016-17 79 Appendix D: Targets for 2016-17 and 2017-18 80 Index of projects, Bills and Acts 81 Chairman’s introduction Chairman’s introduction On 31 May 2016 Phil Golding joined us as Chief Executive. His career to date includes tours of duty in the Private Offices of the Lord Chancellor and the Senior Presiding Judge, a year at the Law Commission as Head of Corporate Services, and work for HM Courts and Tribunals Service as head of the administration team running criminal courts in South West England. He also sits as a lay magistrate in Kent. He has brought to the post his energy, experience and commitment to public service, and has already had a major and positive impact on the work of the Commission. To the Right Honourable David Lidington MP, Lord Chancellor and Secretary of State for Justice After more than 10 years’ outstanding service as team manager for commercial and common law, Commissioners, board members and staff Tamara (Tammy) Goriely retired from that position but, following a three-month sabbatical, has returned During the year ending 31 March 2017 the five to work part time at the Commission as Head of Commissioners remained unchanged. My colleagues Policy in the commercial and common law team. are Professor Nick Hopkins (property, family and Laura Burgoyne has taken her place. David Connolly trust law), Stephen Lewis (commercial and common continues as team manager for public law and Welsh law), Professor David Ormerod QC (criminal law) law; Jessica Uguccioni for criminal law; and Matthew and Nicholas Paines QC (public law and Welsh Jolley for property, family and trust law. Matthew has law). Nicholas Paines has also been the lead in addition been appointed Head of Legal Services, Commissioner for projects specific to Wales, and last with a particular role in assembling the Commission’s year was designated as Commissioner for Public Law 13th Programme of Law Reform. and Welsh Law. Jessica de Mounteney continues as our senior Following the recommendations of a Triennial in-house Parliamentary Counsel and Vindelyn Review into the workings and governance of the Smith-Hillman as the Commission’s economist. Julia Law Commission, Sir David Bell KCB was, as Jarzabkowski remains responsible for statute law noted in the last annual report, appointed in 2015 repeals, although during the year under review she as our first non-executive board member (NEBM). was in fact assisting with the Intellectual Property He has now been joined as from November 2016 (Unjustified Threats) Bill noted below. I have to note by Bronwen Maddox. Bronwen is a former Chief with regret that the draft Statute Law Repeals Bill Foreign Correspondent of The Times and editor produced by the Law Commission in 2015 has not of Prospect Magazine, who is now Director of the been introduced into Parliament. respected and influential think tank the Institute for Government. Our two NEBMs assist in the The Commission is extremely fortunate to have at its governance of the Commission, offering constructive disposal such a talented cadre of senior staff. challenge based on their wide experience. They are not responsible for the choice of our projects, nor for Our corporate services team (CST) – that is to the contents of our consultation papers and reports. say our support staff who are not lawyers – has We are fortunate to have wise advice from two such undergone streamlining and transformation. Eight distinguished colleagues. members of the team, with a total length of service of 142 years, have left us either on retirement or on moving to posts elsewhere. Our thanks go to all of them for their loyal service to the Commission. The 1 LAW COMMISSION ANNUAL REPORT 2016-17 new CST is led by Gulzar Gill as team manager. Commission Bills particularly valuable, ensuring as it Patrick Coyne joined us as Head of Communications does that the main work of scrutiny is carried out by a in January 2017. The members of the new CST Special Public Bill Committee of the House of Lords are already making a very positive contribution to and only a bare minimum of “floor time” is needed, our work. especially in the House of Commons. Four statutory provisions enacted during or Constitution Committee just after the year under review gave effect to recommendations in reports of the Commission. On 21 December 2016 Professor David Ormerod and I gave oral evidence to the House of Lords Select Part 5 of the Enterprise Act 2016 gave effect to one Committee on the Constitution as part of its inquiry outstanding recommendation from our 2014 report into the legislative process.1 The Law Commission on the law of insurance contracts which had not been also submitted written evidence. The committee took included in the Insurance Act 2015. It gives a remedy a particular interest in codification and consolidation. to a policy holder who has sustained further loss Our evidence dealt with the work being done from an insurer’s unreasonable delay in payment of to prepare, in the form of a consolidation Bill, a a claim. This reform was enacted with cross party Sentencing Procedure Code which would streamline support in both Houses and came into force on and codify the mass of legislation on the subject. We 4 May 2017 as section 13A of the 2015 Act. also argued that it would be highly desirable for the notoriously long and complex Immigration Rules to Part 6 of the Policing and Crime Act 2017 gave be streamlined and made more coherent, and for the effect to our report on pressing problems in firearms primary legislation on immigration to be consolidated law published in December 2015, including closing in due course. a loophole which allowed defendants to rely on an exemption for possession of antique firearms even if In its report The Legislative Process: Preparing the weapon was fully effective. Legislation for Parliament,2 published on 25 October 2017, the select committee recommended that “the The Intellectual Property (Unjustified Threats) Act Government should, as a priority, provide the Law 2017, which had been introduced in the House Commission with the necessary resources to start of Lords under the special procedure for Law consolidating those areas of the law where consistent Commission Bills, completed its passage through the application of the law is now under threat from the House of Commons on 21 March 2017 and received sheer complexity of the statute book”, mentioning the Royal Assent on 27 April 2017, the last sitting day immigration and sentencing law in particular. before the dissolution of Parliament. 13th Programme of Law Reform Part 2 of the Digital Economy Act 2017, also enacted at the end of the last Parliament, implemented (with The public consultation on what projects should be some modifications) our recommendations for a included in our 13th Programme began with a launch modernised, simplified and more efficient Electronic event at the Supreme Court on 11 July 2016. Communications Code. The keynote speakers were the then Deputy President of the Supreme Court, and former Law It is obvious that during the period leading up to Commissioner, Baroness Hale of Richmond and the British withdrawal from the European Union pressure Attorney General, Rt Hon Jeremy Wright QC MP.