“Perspectives”: “Reforming the Law: the importance of consultation” by Professor Nick Hopkins

 

As part of our on-going “Perspectives” series of blogs from those involved in Property Litigation outside private practice, Professor Nick Hopkins, the Law Commissioner for property, family and trust law,  gives his thoughts on the importance of consultation process to law reform.

Reforming the Law: the importance of consultation

Consultation lies at the very heart of how we make recommendations for reform at the Law Commission. The publication of one of our consultation papers is followed by a consultation period. We don’t sit back and wait for the responses to roll in – we work proactively to create awareness of our work amongst stakeholders, to discuss key issues, and to encourage people to write consultation responses. Consultation events are held across England and Wales, and take a variety of forms: including symposia where we bring together key stakeholders; professional-only events, where we present our policy and invite Q&A or hold a round-table discussion; and events directed at members of the public who are impacted by the laws we are considering.

We know how busy lawyers are, and we are often asking a lot of you – we are not known for short consultation papers! In technical areas, our consultation papers can run to hundreds of pages, and contain detailed questions. We wouldn’t ask you to spend your time engaging with our work if we did not take your views seriously. But the fact is, we take what consultees say very seriously, and consultation responses are the basis on which we decide our final recommendations. In addition to what we say and quote from responses in our reports, we publish an analysis of responses, so that people can see how we reached our conclusions. Nothing is hidden in this process; our analysis is there for everyone to see, and so we want to ensure that it’s as robust as possible.

When we review consultation responses, we do not simply count the numbers and follow the majority. We undertake a careful analysis of the arguments that are put to us. As we sometimes explain the task, we “measure” responses, rather than simply “weigh” them. In that process, the views of professional bodies, including the Property Litigation Association’s Law Reform Committee, can carry particular weight, because they represent the members who are working with the current law on a day to day basis. Hence, our Report on Updating the Land Registration Act 2002 contains numerous references to the Property Litigation Association’s response to the consultation paper. A number of these note agreement with aspects of our provisional proposals. In some cases, the Association would have gone further – for example, in reform of notices. While we ultimately did not agree with the Association’s conclusions, we hope that our discussion explains why that was the case.

While the consultation period is the centrepiece of our project consultation, it is only part of the story. Engagement with key stakeholders often provides the starting point for a project, and can be pivotal in gathering evidence of the need for a law reform project. In the summer of 2016 we held a public consultation for our 13th programme of law reform. We asked what areas of law people thought needed review, and we highlighted leasehold law as one area that had already been brought to our attention.

Our 13th programme contains a large and significant project on residential leasehold and commonhold, covering enfranchisement, the right to manage, and commonhold. The consultation period for our enfranchisement project closed on 7 January. We’re very grateful that the Property Litigation Association responded to that consultation, and we have started the process of analysing responses. As I write, the consultation period is currently in full swing for the other projects. Hopefully those reading this blog will have booked onto one of the professional events that are going on during February and March.

Residential leasehold has a direct impact on how millions of people own their home. Problems with the law in this area provided us with one of our biggest postbags in our programme consultation, with numerous issues referred to us. It would be impossible to tackle them all at once – and the need for reform is pressing, and so prioritisation has been inevitable. But we hope that our comprehensive reviews of enfranchisement and the right to manage will be the first steps towards a modernisation of residential leasehold law, while our commonhold project reinvigorates commonhold as a viable alternative to leasehold.

The work of the Property Litigation Association on commercial leasehold has played a key role in efforts to prompt a long-overdue review of the Landlord and Tenant (Covenants) Act 1995 Act. The Association has given us extensive evidence of difficulties caused by the legislation, both in its response to our programme consultation, and in its response to our earlier consultation on the Land Registration Act, in which we had aired the issue. While the 1995 Act plays an important role in protecting tenants, it is currently operating to block or complicate standard and commercially important consensual transactions by tenants to assign their leases. This is giving rise to costs to businesses of £100,000s, and huge losses to the value of freeholds (we have seen examples of losses of over £100m and of £25m). Ultimately, we were not able to include the project in our 13th programme. Under our Protocol with government, we can only take on work where the Minister states that there is “a serious intention to take forward law reform”. Support under the Protocol was not forthcoming for a review of commercial leasehold law at this moment. However, the problems with the current law are not likely to go away, and the project could be undertaken in future if supported by the Government. The Property Litigation Association’s work continues to be significant in highlighting the need for such a review.

Professor Nick Hopkins

Law Commissioner for Property, Family and Trusts Law