On 14 December, the Law Commission announced that leasehold, trust law, smart contracts and chancel repair liability are among the 14 projects that the Law Commission will look at over the next three years. A number of these projects are associated with “law and religion” and related issues, including: A Modern Framework for Disposing of the Dead; Employment Law Hearing Structures;  Registered Land and Chancel Repair Liability; Surrogacy.

Background

Announcing its 13th Programme of Law Reform, the Commission said that its consultation on what areas of law it should explore attracted more than 1,300 submissions: a record response since the Commission was set up in 1965. The Press Release stated:

“Subjects are chosen based on the extent to which the law is unsatisfactory. The commission can only take on projects where the government seriously intends to reform the law. Law Commission chair Sir David Bean, a Court of Appeal judge, said: ‘We want to help tackle injustices by making the law simpler, clearer and fit for the future. We will also be making sure the law supports cutting-edge technical innovation such as automated vehicles and smart contracts. Although we are operating in uncertain times, I am confident that our independence and ability to build consensus will help ensure that parliament can take forward law reform in these areas.’

Extracts from the relevant parts of the programme are reproduced below.

A Modern Framework for Disposing of the Dead 

“The law governing how we dispose of the bodies of our loved ones when they die is unfit for modern needs. New methods of disposal such as resomation (a process using alkaline hydrolysis to reduce the body to ash) and promession/cryomation (a process using liquid nitrogen to crystallise the body and vibration to disintegrate it into particles) which are used overseas are completely unregulated here.

The legislation governing more traditional methods of disposal – burial and cremation – is outdated, piecemeal and complex. And the law does not ensure that a person’s own wishes as to the disposal of their remains are carried out, leading to disputes where family members disagree.

We want to create a single, clear, futureproof legal framework governing methods of disposing of the dead. This will bring the existing law into line with modern practices and enable safe and dignified new processes to be made available in England and Wales.

The project would also seek to provide greater certainty that a person’s wishes about what happens to their body after death are respected, whilst ensuring that the public interest in this sensitive area of law is properly respected.”

Employment Law Hearing Structures

“The Civil Courts Structure Review noted that there is an ‘awkward area’ of shared and exclusive jurisdiction in the fields of discrimination and employment law. This creates boundary issues between the courts and Employment Tribunal System which can mean both delays and that the best equipped judges aren’t appointed.

The project will seek to resolve problems caused by this allocation of jurisdiction, as well as investigating the outdated and in some respects arbitrary limits on the Employment Tribunal’s jurisdiction in the employment field.

The Ministry of Justice and the Department of Business, Energy, Innovation and Skills are in the process of reforming the Employment Tribunal system as part of modernisation work. They have indicated that there are no plans to consider radical structural change and as a result we will consider reform by other means.”

Registered Land and Chancel Repair Liability

“Liability for chancel repair is the liability of certain landowners to pay for repairs to a local church. Under the Land Registration Act 2002, such liability should not bind purchasers of land after 2013 unless protected on the register. However, since the act was brought into force, questions have been raised about the liability’s legal status.”

The Commission says its project will aim to “close the loophole”. It adds: “Doing so would eliminate the current standard of practice of purchasers searching and/or insuring against the risk of liability, which costs an estimated £20M each year.”

Surrogacy

“Surrogacy is where a woman bears a child on behalf of someone else or a couple who intend to become the child’s parent or parents. Over the past 10 years the use of surrogacy has risen, but the law in the UK is outdated and unclear and requires comprehensive reform to keep up with the modern world.

The project will consider the legal parentage of children born via surrogacy, and the regulation of surrogacy more widely.

It will take account of the rights of all involved, including the question of a child’s right to access information about their origin and the prevention of exploitation of children and adults.”

Next steps

The Law Commission’s announcement concluded with the following caveat:

“This is a substantial body of law reform work on which the Commission hopes to start work over the next three years. However, given the uncertain climate in which we are operating, the Commission recognises the need to remain flexible in terms of being able to react to potential new priorities during the course of the Programme.

As such, inclusion in the 13^th Programme is not a guarantee that the Commission will be able to take forward work immediately across all areas. This is in no way a reflection of the priority the Commission attaches to individual projects”.