Sir Terence Etherton - Law Commission

ePolitix.com speaks to Sir Terence Etherton, chairman of the Law Commission, about developments in the 10th programme of law reform.

Question: You have launched a web discussion forum to consult on your 10th programme of law reform. What do you hope to achieve from this forum?

Sir Terence Etherton:

It has always been our policy to consult widely on all our projects and reports.  We always have at least one public consultation on every project. The consultation paper is placed on our website for every body to see.

As part of our policy of consultation, we not only consult widely on particular projects, but also on what should be part of our programme of reform. What we are hoping to do, by using the web forum, is to expand the reach of people with whom we consult and effectively use it as a way of engaging all of our stakeholders.

When I say stakeholders, I mean everybody who may be affected by any of our projects or proposals for reform and anybody else who is otherwise interested.

We believe that people should have the opportunity to tell us which laws are not working, and the web forum is a very direct and highly desirable way of allowing them to express their views and comment on the views of others.

This web forum  is part of an online consultation pilot being run by the Hansard Society and the eDemocracy unit of the DCA. Every contribution will be carefully considered when we are putting together our next Programme.

Question: What responses have you had so far?

Sir Terence Etherton: The response so far has been very good. We have had a total of 2,848 visits to the site, of which 2,364 are unique visitors spending time on the site. The home page has been visited 2,355 times, the forum page, where we ask about law reform, 1,237 times, and a total of 77 people have formally registered on the site.  It is very exciting to see eDemocracy in action.

We have recently restructured the forum to make it even more user-friendly. Visitors will now find separate discussion pages for different areas of the law. We based these discussion areas on responses to date. We are hoping for even more visits before the consultation closes on 30 March.

Question: Very impressive figures. Are any consistent messages coming through?

Sir Terence Etherton: To be perfectly frank no, except that there are many areas of the law people want to have looked at.

What is really very encouraging and interesting is the variety and range of matters that people want us to examine. They cover every major field you would expect the public to be interested in. For instance, they cover a range of criminal law matters, property law, family law, local authorities, planning law, freedom of information, environmental law and so on.

Question: Do you invite a response from government as part of the consultation process?

Sir Terence Etherton: Yes. We have actually sent out over 500 individual letters or individual communications to people in addition to the general invitation to the public through the web forum and newspapers and so on. Amongst this communication is a letter to each  government department inviting them to suggest projects for our consideration. In addition, each Law Commission Programme of Reform must be sanctioned by the Ministerial Committee for the Law Commission.

The Ministerial Committee for the Law Commission was set up by Lord Irvine when he was Lord Chancellor in 2000. It is chaired by the Minister responsible for the Law Commission, presently Vera Baird QC, and comprises Ministers from the various departments with which we deal.

Question: How will the responses be used in helping you decide which projects to take forward?

Sir Terence Etherton:

The responses will first be analysed by the law teams here at the Commission. They will then be presented to Commissioners, who will collectively decide which projects we take forward.

 

The context of this analysis is our overall remit, imposed on us by the Law Commissions Act 1965 which set us up. This gave us a very broad remit to review the whole of the law with a view to its systematic development and reform, particularly with a view to its simplification and modernization, and to promote fairness.

 

With that in mind we are guided by three main criteria in deciding which of the very many projects suggested to us should be taken forward. The three criteria are importance, suitability, and resources.

 

As far as importance is concerned, we intend to evaluate the extent to which any area of the law proposed for reform is unsatisfactory, and in particular to what extent is it unfair, complex, and outdated.

 

As part of the importance issue we want to know the magnitude of the potential benefits likely to accrue from reform. If there was an area of the law which affected only a very small number of people, however important it might be to them, we would have to take this into account when assessing other areas of the law which may affect a larger amount of people.  

 

Moving on to suitability, we tend to avoid areas which are politically controversial and which are for politicians to debate in parliament and initiate.

 

Finally, on resources, we are limited by both our financial resources and our personnel resources. You have to bear in mind that each of the projects in which we are engaged would normally last at least two years, and very often three years if they have a draft bill attached to the final report, which they normally do. We also need to have a good mix of projects covering different areas. Therefore resource considerations come into play.

 

The interplay of those three different criteria will have a significant impact on our choice.

Question: What is the timetable for this?

Sir Terence Etherton: The Tenth Programme will start at the beginning of April next year. At the moment we assume it will be a three-year programme.

After the close of the consultation period on 30 March, the Commissioners, of which there are five, will consider, together with the teams within the Commission, the various proposals in light of the criteria I have mentioned. They will then form a preliminary assessment of projects which should be selected. Those will then be discussed with the Ministerial Committee for the Law Commission.

A consensus will be reached between the members of the Committee and the Commission. The Committee will  then advise the Lord Chancellor prior to his approval of our Programme. Once he has approved it, the Programme is laid before Parliament.

That process of vetting by the Ministerial Committee and the Lord Chancellor will probably take place either at the very end of this year or early next year, with a view to the approved Programme being laid before Parliament early April next year.

Question: Can you give me an indication of current projects that may be carried forward?

Sir Terence Etherton: There are certain projects in the current Programme, the Ninth Programme, which are likely to be taken forward. One concerns the range of remedies available to citizens against public bodies for breach of duty.  Another concerns certain methods of appeal from Crown Courts and Magistrates Courts. Another is a review of insurance law.

Another is a review of property law relating to land obligations. We will also continue to look at areas of criminal law with a view to its codification.

Question: Do you have plans to consult in this way again in the future.

Sir Terence Etherton: If this experiment works well, and it looks as if it will, we want to use this, and other online tools, in future consultations. With the help of the Hansard Society, which is supporting us with this pilot, we will evaluate how this web forum has worked and use this knowledge in carrying out future initiatives. We will try to develop new and effective means of engaging the public in our work. Parliamentarians have expressed an interest in the success of our project as it has  implications for any for any public body.

Question: Do you have any final messages for ePolitix.com’s readers?

Sir Terence Etherton: Yes, I do. The final message I have is that we are engaged in the extremely important exercise of setting the Programme of our reform projects over the three years, beginning in April next year.

History has shown that since 1965, of the 250 odd projects we have completed, about 2/3 are eventually implemented in whole or in part. If somebody has a project they want us to look at, with a view to improving the lives of ordinary people, then I would urge them to put it forward. We will consider every single suggestion that is made.