Law reformers at risk
Outgoing chair speaks of ‘systemic risks’ to Law Commission independence
The outgoing chair of the Law Commission has spoken of “systemic risks” to its independence. Sir Nicholas Green, who retires from the commission today and will serve as deputy senior presiding judge of England and Wales next year, made his comments in the introduction to a new 240-page book about its work called Inside Modern Law Reform.
The independence of the Law Commission is “utterly fundamental to its success and effectiveness and, as such, to our ability to produce work of the highest quality and utility to the state”, Green wrote. “There are however pressures which potentially impact upon our independence.”
The most potent of these, he explained, had come from budget cuts. They started in 2010 and by the time he became chair in 2018 the budget was less than half its level eight years earlier.
In governmental terms, said Green, the Law Commission’s budget was a tiny amount. “We cost a speck of a fragment of a governmental peanut.” And yet potential benefits were huge. “When, as is often the case, a single project costing, say, £350,000 can generate a societal benefit measured in billions it makes no sense to underfund us.”
In 2019, the then lord chancellor Sir Robert Buckland agreed that the Law Commission should return to a fully-funded body. “This new model has worked well,” Green wrote.
“A second pressure concerns appointments,” he continued. “There is across Whitehall and arm’s length bodies a process for making senior appointments which, unless care is taken, carries with it risks to independence.”
Those appointments included the Law Commission’s chair, commissioners, chief executive and non-executive board members. The process involved an independent selection panel. It was “fundamental that a candidate would not be considered if it was thought that he or she would seek to introduce personal political views into their role within the commission”.
There are two systemic risks. The first is that, as these are ministerial appointments, they are capable of being influenced by political considerations. It would be anathema to the impartial, apolitical and independent nature of the commission if a person otherwise considered to be suitable for appointment was vetoed for some perceived “political” reason.
The second is the time taken for appointment processes to complete. All due allowances must be given for the pressures that the public appointments team work under, but it causes real damage to an arm’s length body, such as the commission, if the process takes so long that we are without senior personnel for months or even longer.
That was all Green had to say on the issue. But it is not difficult fill in some of the background from information already in the public domain.
Green was appointed in August 2018 for a period of three years. That term was subsequently extended for a further year to the end of July 2022. Three weeks before he was due to return to the Court of Appeal, and with no appointment in sight, the justice secretary Dominic Raab announced that Green would stay on until three months after his successor had been named. That proved to be particularly important because the post of chief executive remained unfilled for more than two months at the end of last year. This summer, Raab’s successor Alex Chalk announced that Sir Peter Fraser would take over from Green on 1 December.
The appointment of non-executive board members is even more convoluted. In its annual report for 2021/22, published at the end of last year, the commission said this:
During the course of this year we have been fortunate to have in place three very experienced and knowledgeable non-executives, who have provided very valuable insight to the board over the last year. They are: Baroness (Ruth) Deech DBE QC (hon), Bronwen Maddox and Joshua Rozenberg QC (hon).
However, next year will see change. Baroness Deech has decided not to seek renewal after the expiry of her three-year term in May 2022 and Bronwen Maddox will reach the end of her second term of three years in November 2022. We are working with the Ministry of Justice to run a campaign to find successors as the work of the Law Commission is greatly enhanced by the experience and skills of our non-executive board members.
Perceptive readers will infer from this that, unlike Deech, I did seek a second three-year term, to run from May 2022. It’s also a matter of public record that the Law Commission advertised for two new non-executives in the summer of last year. Applications closed on 31 August 2022.
Nothing more was heard until last month, when three appointments were announced:
Hannah White and Claire Bassett were appointed on 27 September 2023 while Baroness Gohir will be succeeding Joshua Rozenberg KC (hon) from 1 March 2024.
White, who began her career in government as a parliamentary official, succeeded Maddox as chief executive of the Institute for Government. Gohir, like Deech, is a cross-bench peer. Bassett has run a series of public bodies. It’s worth stressing that none of us is politically active.
Readers will see that the commission would have had no non-executives at all for most of this year if my term had not been extended. They may also infer that I was not offered a full three-year second term. And they can see that it took more than a year after applications closed for the new appointments to be announced.
What readers will not know is why this took so long. But we can be confident that the Law Commission now has the non-executive board members it wished to appoint — as well as a top quality new chair.
That’s because blocking an appointment for what was perceived to be political reason would be anathema to the commission’s impartial, apolitical and independent nature — as Green rightly said.
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