The Law Commission: True Dawns and False Dawns
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02684.x |
| Published date | 01 September 1996 |
| Author | S. M. Cretney |
| Date | 01 September 1996 |
THE
MODERN LAW REVIEW
Volume
59
September
1996
No.
5
The
Law Commission:
True
Dawns and
False
Dawns
S.M.
Cretney
*
Introduction
Sir Henry Brooke’s three years’ as Chairman of the Law Commission were
characterised by a skilful and determined attempt to bring about a positive response
to the ‘mounting concern’ increasingly felt by the Commission about
implementation of its reports.2 The Commission’s public image was to be
transformed, and the contemporary relevance of its work brought to life.3 To this
end, the design and appearance of the reports were dramatically modernised.
Photographs
-
including a photograph of the Chairman and others receiving a
petition apparently urging reform of the year and a day rule in homicide4
-
pie
charts and bar charts figured prominently
in
the
Annual Reports laid before
Parliament. The Chairman and
his
colleagues
-
in this and other respects’
following the example and building on the achievements of their recent
predecessors6
-
devoted much time and effort to explanation and exhortation.
Influential evidence was given to the House
of
Commons Home Affairs
C~mrnittee,~ and constructive discussions took place
with
the Lord Chancellor’s
*Solicitor, Fellow of
All
Souls College, Oxford.
Two of the original Law Commissioners (Professor L.C.B. Cower OBE,
QC,
FBA and Mr Noman
Marsh CBE,
QC),
one recently retired Law Commissioner (Professor Jack Beatson), one of the first
members of the Law Commission’s legal
staff
(Mrs Ruth Deech), two former officials of the Lord
Chancellor’s Department (Sir Wilfrid Bourne KCB,
QC
and Sir Derek Oulton
GCB,
QC)
and two
academic lawyers with interests in public law (Miss A.L.C. Davies and Professor David Feldman)
accepted the author’s invitation to read
a
draft of this paper, and he has benefited greatly from comments
made by them (and
also
by Mr Cyril Glasser). The author is responsible for any errors and for
all
statements of opinion.
1
From
1
January
1993
to
31
December
1995.
2
Twenty-Eighth Annual Report
1993
(Law Corn No
223, 1994)
para
5.1.
3
ibidpara
1.1.
4
See the Law Commission’s
Twenty-Ninth Annual
Report
1994
(Law Corn No
232, 1995)
p
35.
The
Commission recommended that the rule
be
abolished:
Legislating the Criminal Code: The Year and
a Day Rule in Homicide
(Law Com No
230, 1995).
5
The modernisation of the appearance of Law Commission annual reports dates back to the
Twenty-Sevenrh Annual Report
1992
(Law Com No
210, 1993),
which was the first to contain bar
charts.
6
Sir Peter Gibson’s
Denning Lecture,
‘Law Reform Now: The Law Commission
25
years on’
delivered on
19
March
1991,
is
an admirable account of the work of the Commission and the
challenges of translating its recommendations into legislation.
See
Home
Affairs Committee: The
Work
of
the Law Commission
(Minutes of Evidence,
18
May
1994,
HC Session
1993-94,418-i).
7
63
1
0
The
Modern Law Review Limited
1996
(MLR
59:5.
September). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4 IJF
and
238
Main
Street,
Cambridge,
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USA.
The
Modern
Law Review
Department about how to tackle the backlog of unimplemented Reports.8
These efforts began to bear fruit. Sir Henry Brooke had understood the need for
the Commission to learn new methods of communi~ation;~ and at last the relevance
of
law reform to the needs of
the
people began to
be
appreciated. ‘Striking
changes’ took place in the press’s treatment of the Commission’s work. Legal
correspondents gave the Commission ‘prominent treatment.’ Home affairs editors
and political editors began to show ‘keen interest’ in the Commission’s message: it
was ‘high
time
that more was done to make the law simpler, fairer and cheaper to
use.’
lo
The Law Commission carried out research into parliamentary procedures.
The ‘Jellicoe’
l2
procedure (under which Bills are considered in the House of Lords
by a Special Public Bill Committee) was improved in an attempt to meet the need
to put politically non-contentious Law Commission law reform Bills onto a fast-
track parliamentary process, and a number of Bills were successfully dealt with
under that procedure in
1995.
Whereas in
1994
Sir Henry Brooke had com-
plainedI3
-
in language which might well have been used by those responsible for
setting up the Commission more than a quarter of
a
century ago
-
that much of the
law
remained ‘riddled with faults and flaws’ only concealed by the imagination
and ingenuity of the judges, these developments encouraged him to take a
cautiously optimistic view: ‘The recent past has been wintry. There is now
a
rosy
hue
on the horizon, but should I fear a false dawn?’14
Perhaps the rosy dawn hue should have conveyed the proverbial warning:
a
sudden and violent storm was about to break. In November
1995
the Government
-
amidst an angry campaign about its commitment to ‘family values’
-
withdrew, at
a desperately late stage, the Bill15 it had introduced to give effect to the
Commission’s
Report on Domestic Violence and Occupation
of
the Family
Home.I6
It certainly became difficult any longer to describe accurately the
Law
[Vol.
59
8
9
10
II
12
13
14
15
16
Law Corn,
op
cit
n2, para 5.16. The ground had been well prepared: see, for example, the attention
given to the need for parliamentary procedural change in Part
I
of the Law Commission’s
Twenty-
Sixth Annual Report 1991
(Law Com
No
206, 1992).
Sir Henry Brooke records that
a
former MP told him he ‘had to realise that MPs are now besieged by
pressure groups, selling their wares to them by inviting them to
smart
parties
or
to meals at
expensive restaurants. What hope,
I
thought, had the law of England when
it
was up against this kind
of Competition
.
.
.
The relevance of the Commission’s work to the needs of their constituents simply
wasn’t being taken on board.
In
his book called
Our Age,
Lord Annan describes how
in
the 1980s
the great and good
in
Oxbridge colleges began to realise that the world
in
which they used to
flourish and have influence was now passing them by. Our plight appeared to be very similar’
Thirty
Years
of
the
Law Commission,
1%5-95
(Law Commission,
1996)
p 16.
Law Com,
op
cit
n4, para
5.15.
See also Sir Henry Brooke’s speech,
op
cit
n9, particularly at p 16.
Hopkins,
Parliamentary Procedures and the Law Commission:
A
Research Study,
with
a
foreword
by the Law Commission (1994).
So
called by reference to the
Report
of
the
Select Committee
on
the Committee Work
of
the House
of
Lords
(Chairman: the
Earl
Jellicoe) Session 1991-92, HL 35-i; and note
also
the
First Report
of
the
Select Committee on Procedure,
Session 1992-93, HL
I
1.
In
the Chairman’s foreword to the Law Commission’s
Twenfv-Eiahth Annual Renort 1993
(Law
~1
Com,
op
cit
n
2).
The
House Manazine.
October 1994 Ithe ‘Darliamentarv weeklv magazine which Drides itself on
v-
.
being the most widely read magazine in Paiiament’: La; Com,
?wen&-Ninth Annu& Report 1994,
op
cit
n4, para
5.9,
footnote 19).
The Family Homes and Domestic Violence Bill. This had
been
regarded
as
an uncontroversial
measure, apt for the special ‘fast track’ Jellicoe procedure incorporating examination of the Bill by
a
Special Public Committee of the House of Lords.
A
full account of the parliamentary history is
given by Lord Brightman in the debate on the third reading of the Family Law Bill,
OficCial Report,
HL Deb col 708 11 March 1996.
Law Com
No
207, 1992.
632
0
The
Modem
Law Review
Limited
1996
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