Tuesday, December 13, 2005

Law Reform and Law Commissions

Law reform is not normally something I spend time on. In my field, of socio-legal studies, law is there and is interpreted through interactions. The rules are almost of secondary importance. But today I had to attend a meeting of the English Law Commission for a colleague who was unable to go.

The aim was for the Law Commission to explain what it had been doing to a group of academic representatives of learned societies. We were the Socio-Legal Studies Association, the Society of Legal Scholars, and the Association of Law Teachers. The idea was that we could explore possibilities of collaboration in the future.

Law Commissions are plentiful. Google law commissions and you will receive over 20 pages of hits, and Globallawreview.com lists over 35 law commissions. Their justification is to reform the law, which can be done in a number of ways. One is to remove obsolete laws; another is clear up anomalies. The real challenge for law commissions is to find areas of law that need a big overhaul. One that was mentioned today was insurance law, where the practice and the law have drifted apart.

It all sounds necessary and worthy. And when the English Law Commission was established in 1965, the merits of a commission were clear. Forty years on the merits remain clear, but the political case for the Law Commission has waned. One reason is the change in the institutions of government. Today the Cabinet Office, which is the prime minister's fiefdom, likes to plan strategy and conceive how delivery of policies will be effected. These have to be done quickly, that is, within electoral cycles. They have to be responsive to political needs. This is where the votes are. Consultants are born to this work, which is why so many McKinsey alumni are found in government.

Law commissions are generally staffed by judges, lawyers, and academics who live in the long term. To them law reform is something to be performed with care, attention to detail, consultation, and reflection. Government doesn't allow itself these luxuries anymore. Even when law commissions negotiate reform projects with government departments, who become their sponsors, realpolitik may intrude and render the project redundant. The type of law reform done, in the main, by the Law Commission doesn't attract votes. As important as the reform of trustees exemption clauses is, to the populace at large it's a dead letter. No government campaigns on that cause. Even if the Law Commission brings a reform project to fruition and drafts a model bill for legislation, there is little guarantee that government officials will be able to find time to slot it into the legislative timetable.

Nevertheless, law commissions through their work are able to build a "bank" of future potential legal reforms which governments can draw on as they want. Law commissions also have the benefit of being small and relatively inexpensive to run. And this is probably why their tasks haven't yet been outsourced to McKinsey. Law reform is a pedantic world, in the best sense of the word, and a necessary one. I hope it continues.

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