A law reform project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes has been included in the Law Commission’s 12th programme of law reform.
The advisory body has also included two important projects for Wales:
- A project to advise the Government that will consider ways in which the country’s existing legislation can be simplified and made more accessible, and how future legislation could reduce problems;
- A review that will recommend a simplified and modernised planning system for the country.
Another significant project potentially affecting the public sector is one that will examine the extent of Land Registry's guarantee of title, rectification and alternation of the register, and the impact of fraud.
The Law Commiission said the Deprivation of Liberty Safeguards (DoLS) had been heavily criticised since their introduction in 2007 for being overly complex and excessively bureaucratic. “It is said that staff often do not understand them and that there is confusion over the differences between the powers of the Mental Health Act 1983 and DoLS.”
A House of Lords select committee earlier this year concluded that the safeguards were “not fit for purpose” and called for them to be replaced. The committee also recommended that the new system should extend to cover people in supported living arrangements, not just hospitals and care homes.
The Supreme Court shortly afterwards issued its landmark Cheshire West ruling, which resulted in more persons being considered to have been deprived of their liberty than was previously the case. The President of the Court of Protection recently held a hearing on the impact of the case for the courts.
The Department of Health had accepted that there are difficulties with DoLS and had announced various measures designed to improve the way the safeguards operate, the Law Commission said.
“Our project considers how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes, where it is possible that Article 5 rights would otherwise be infringed,” it explained.
“In addition to considering these settings, the project will also assess the implications of this work for DoLS to ensure that any learning which may be relevant is shared.”
A report, including recommendations for reform and a draft Bill, is expected to be published in summer 2017.
In relation to the advice to the Government on Welsh legislation, the Law Commission said problems with the form and accessibility of the law relating to Wales had “been apparent for some time, and are becoming more serious”.
It added: “The process of devolution had led to a situation in which it is difficult for both professionals and the public to access the law relating to Wales.”
The Law Commission said the problem was particularly acute in respect of executive powers, but was not confined to them. It expects to publish its advice late in 2015.
In relation to planning, the advisory body said the Welsh regime was even more complex than in England.
“Some, but not all, of the recent English legislation is applicable to Wales, while some provisions are specific to Wales only and some have been commenced in England but not in Wales,” it said.
“This means that it is very difficult, even for professionals, to understand which parts of the planning law apply in Wales, leading to increased costs to individuals, communities and businesses, as well as to local planning authorities.”
The Law Commission said the Planning (Wales) Bill reformed plan-making functions in Wales but did not fundamentally address the distinct process of development management and consideration of planning applications, nor the relationship between development management and local development plans.
“This project considers the benefits of a simplified and modernised system that reflects the needs of Wales, a smaller country with different types of land use, and where there is a close connection between government bodies.
“The main focus is the reform of the development control process, and the relationship between this and plan-making. A simplified and modernised planning system for Wales will have the potential to promote economic growth, housing supply and protection of the environment, as well as increasing efficiency and reducing transaction costs.”
As with the mental capacity project, a report with recommendations and draft Bill is expected to be published in 2017.
The other projects contained in the 12th programme are:
- Bills of sale: A law reform review of the law relating to “bills of sale” loans, including logbook loans.
- Firearms: A scoping exercise to consider the enactment of a single statute containing modified and simplified versions of all firearms offences.
- Protecting consumer prepayments on retailer insolvency: A scoping review to assess the scale of the problem and consider was to increase protection for consumers.
- Sentencing procedure: A law reform project to recommend a single sentencing statute.
- Wills: A law reform project to review the law of wills, focusing on mental capacity and will making, formalities that dictate how a will should be written and signed, and how mistakes in wills can be corrected.
More information on the various projects can be found here.
Under the terms of its Protocol, before the Law Commission can include a project in its programme, it must also have confirmation from the relevant Government Department that it has a “serious intention” to take forward law reform.