Meeting with the Law Commission 14/12/2009

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Published: Thursday January 14 2010

Further Details

 

Meeting between the law commission, the society of legal scholars, the socio-legal studies association and the association of law teachers, 14/12/2009

 

In Attendance:           Sir James Munby                    Professor Fiona Cownie

Professor Elizabeth Cooke     Chris Maguire

David Hertzell                          Dr Amanda Perry Kessaris

Professor Jeremy Horder       Professor Lucy Vickers

Robin Dormer

Mark Ormerod

Laura Giles

 

 

the law commission and its use of empirical research

General method of gathering research

                   1.1          Professor Cooke spoke to a paper she had circulated which detailed the ways in which the Law Commission (LC) used empirical research.  Two main points were emphasised: the examples of the numerous different ways in which research was used, and the rarity of situations where the Commission was in a position to fund research itself.

                   1.2          Professor Cownie identified from the document four ways in which the Law Commission acquired research:

Through open competition and bidding;

By using an individual seconded to the Commission to undertake it;

The use of existing research, and

By appearing as a supporter on a bid for externally funded research.

                   1.3          Professor Cownie, Chris Maguire and Dr Perry Kessaris all suggested that it would be helpful to the academic community, and useful in the interests of transparency and fairness if these four ways were publicised and explained. This was particularly so as young academics might be happy to bid for research projects even where very little financial support was available from the Law Commission. Similarly organisations wanting to build up a research profile might be willing to undertake research for the Commission with little funding support.

                   1.4          Professor Cooke agreed that more information would be helpful, but noted that secondments (although unusual at the Commission) were externally advertised. The Commission's website was the main way in which information about research needs could be communicated, and it was agreed that this should give information on the four research methods.

                   1.5          The key needs of the Law Commission with respect to research were variety and speed. The most important consideration for the Commission was that the research was of a high quality. Professor Horder gave an example of a project where a previously sceptical Government department had been convinced by the quality of empirical research conducted by an established academic.

Commissioning and lending support to research.

                   1.6          Although the Law Commission did sometimes plan the way it would acquire empirical research, generally it acted on a more ad hoc basis. Researchers would sometimes contact the Commission first, as had happened with the Fitness to Plead project by the Criminal Law Team. Similarly the research undertaken for Marital Property Agreements had been the result of a family law academic contacting the Family Law Team. This had led to a useful dialogue, in which the Commission had been able to support the funding bid, and used the results of the research in its project.

                   1.7          Given the benefits deriving from academics being aware of Law Commission projects and contacting the Commission with information about related research, it was agreed that greater dissemination of information regarding projects would be helpful. This could be done both through the Law Commission website and by the Society of Legal Scholars, Socio-Legal Studies Association and the Association of Legal Teachers.

                   1.8          It was stressed that the Law Commission could not be seen as 'rubber-stamping' or endorsing research, as doing so might undermine the appearance of both the Commission and individual researchers' independence. Professor Cownie agreed and stated that this was another reason that a clearer outline of how the Commission used empirical research would be useful.

                   1.9          The Commission was not usually in a position to fund internal research, and so looked mostly for established academics receiving external funding. The Commission did not however, endorse research of a general nature, but only that which was specific to the projects that it was undertaking at the time.

Communication between the Society of Legal Scholars, Socio-Legal Studies Association, Association of Legal Teachers and the Law Commission

               1.10          Professor Cooke referred to the importance of "impact" for the purposes of the research Excellence Framework, and noted that the Law Commission was now publishing analyses of responses to consultation on its website, and that it would be useful to disseminate information about this. Academics would then be able to track comments they had made during consultation and to see how these had been used and responded to.

               1.11          Turning to impact in a very different sense, it was noted that with the increasing importance attached to impact assessments for all Law Commission projects, there was an increasing need for statistical material and for anything that would be of assistance in quantifying the impact of reform.. It was agreed that the weekly round-robin emails of the Society of Legal Scholars, Socio-Legal Studies Association and the Association of Legal Teachers would be helpful for passing on information about this.

               1.12          It would also be helpful to circulate or place on the Law Commission website information about the various types of research that the Commission used (socio-legal, attitudinal etc). It was suggested that the Commission should use internet forms to allow academics to present their research in a way focussed on its current needs. This would reduce the likelihood of the Commission being 'flooded' with offers of irrelevant research, although there was little risk of this happening as relatively few legal academics undertook empirical research.

               1.13          There was some concern that some members of the academic groups still lacked knowledge about the Law Commission and its use of research. In the area of family law Professor Cooke and the Chairman explained that information about academics' research proposals and the Commission's own projects was widely known through networks established at family law conferences etc.

               1.14          However, there was concern that in areas of law where there was a larger and more loosely associated group of practitioners and academics, (for example the areas of law covered by the Commercial and Common Law Team) such a clear circle of communication did not exist. This, it was noted, was unhelpful for both academics and the Commission, and there was need for better communication.

ACTION POINT: Professor Cooke would draw up an explanatory document that all parties could endorse, detailing the resources and opportunities available at the Law Commission for researchers; the document could appear on both the Commission's website and those of the subject associations.

Current law commission projects

The ongoing 10th Programme of reform

               1.15          Chris Maguire asked about the progress on the Insanity project, and for the Law Commission's response to the Coroners and Justice Act 2009 regarding provocation and diminished responsibility.

               1.16          Professor Horder drew a distinction between the Fitness to Plead and Insanity projects, and stated that Fitness to Plead was being taken forward first. This was because the deficiencies on the law relating to Fitness to Plead were of a wider impact.  They could affect every stage of the criminal trial process. With regard to the Coroners and Justice Act, the legislation had incorporated much of the Law Commission's proposals, although there had inevitably been some changes as it had passed through the legislative process.

Suggestions for projects to be considered for the 11th Programme

               1.17          Public consultation for the 11th Programme would begin in summer 2010, and the Chairman noted that the Commission hoped to have as wide an input as possible. The proposals from SLS members as to possible future projects were therefore particularly welcome. It was hoped that the Commission's feedback on them would provide helpful information as to the types of proposals needed and the way in which they should be submitted for more members to contribute during the consultation period.

Proposal to reform damages for misrepresentation

               1.18          David Hertzell explained that the Commercial and Common Law Team had already been given funding by the Department for Business Innovation and Skills to review misrepresentation in a consumer context. The project was expected to last two years. As yet there were no plans to extend the project to non-consumer contracts, so comments from Society of Legal Scholars members regarding this area would still be welcome.

Harmonising copyright law for different types of work

               1.19          An immediate difficulty with this proposal was that there was no-one currently working at the Law Commission with the expertise to handle it. Although this would not rule a project out, it would make it difficult for the Commission adequately to assess in advance the aim of such a project and its potential impact. More detail on how such a large and complex project could be possible would be needed in any further proposal on the subject.

               1.20          The proposal also highlighted the weight the Commission gave to consultation when deciding projects for reform. In this instance there were concerns that there would be numerous, large, opposing trade bodies involved, and this could complicate the consultation process. Similarly the potentially broad economic impact of reform could make consultation difficult.  The time necessary to conduct consultation on this topic (which would include seminars, talks and interviews etc) might be beyond the resources of the Commission.

               1.21          Finally, given the complexity of the matter, the Law Commission might struggle to provide an adequate economic impact assessment. The detail required for the scoping work alone might prove an immediate bar to pursuing the issue. It was felt that in such projects, leadership from the relevant Government department might be necessary.

The legal status of 'target duties' in legislation

               1.22          It was unclear what the precise proposal for reform was. If the suggestion was that the functioning of these duties should be assessed, it was noted that this would be apt for academic research but was not a reform project that the Law Commission could undertake.

               1.23          The Law Commission worked by considering either parts of the common law or specific statutes, and reforming these. Target duties were a technique of legislative drafting and overtly political; it was therefore difficult to see how they could be a subject of law reform.

Breach of statutory duty

               1.24          This proposal also raised an issue that was essentially a problem of statutory drafting. Although the legal world in general agreed that it was an area in need of reform, and there had been numerous calls for Parliament to express its intent regarding actionable duties more clearly in statutes, these had had no effect. It was difficult to see how reform proposals from the Law Commission could have much influence.

Evictions and article 8 of the ECHR

               1.25          The proposal was again unclear, being simply a list of cases.

               1.26          The Chairman noted that there had been a recent case considering whether a social housing association was a public body for the purposes of article 8, and that the Supreme Court had also suggested that it would be ready to clarify this area of law when a suitable case came before it. The question therefore seemed to be one of interpretation of the ECHR and if so was not suitable as a project for the Law Commission.

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