by Professor Nick Hopkins, Law Commissioner
In this contribution I consider how law reform and, particularly, the work of the Law Commission, can be used in teaching land law. After my appointment at the Law Commission, I continued to lecture land law for a term, during which I became ever more conscious of the extent to which Law Commission recommendations have shaped the topics that we teach. From formalities and trusts of land, through to easements and covenants, mortgages and, of course, the Land Registration Act 2002, the Law Commission’s work – implemented, soon to be implemented, rejected, under consideration and on-going – permeates the syllabus. We encourage students to read Law Commission consultations and reports, to see the direction of the law, past, present and possible future, and to understand how and why the law has (or may) change.
The Law Commission does not set out to write text book accounts of the law, but the structure of many of our publications inevitably lends itself to what we hope is an accessible and free-standing account – typically explaining what the law is, what problems with the law have been raised with us, the possible solution or solutions, and our provisional proposal or final recommendation for reform.
Our publications are, therefore, a valuable resource to students as they first encounter land law, but how can law reform and the Law Commission’s work be used beyond that, to encourage students to think more deeply and more roundly about the subjects that we teach? I want to outline three ways in which our publications can encourage students to think about land law.
The practical significance of land law: students often find land law a technically difficult and abstract subject that is difficult to relate to their life experience. Law Commission work is guided by understanding how the law applies to those most directly affected by it. Abstract discussions of (for example) the nature of a registered title and the statutory guarantee of title, are brought home by considering how the law responds to a simple form of registered title fraud. The title of our work on easements, covenants and profits a prendre – Making Land Work – reflects the fact that our practical experience of the land we live on is often dependent on our relations with neighbours and neighbouring land.
Different approaches to land law: Sue Bright and Sarah Blandy’s excellent collection, Researching Property Law (2015) is an invaluable guide to the variety of methodologies used in property law scholarship. Law Commission publications show the inter-relationship of different methodologies and the roles they can play in understanding how the law works, and how it can be improved. Our work on cohabitation is a clear example of the need to consider doctrinal, empirical and socio-legal approaches to devise a solution to what has proved to be one of the most difficult issues for the law to resolve.
The law needs to work on the ground: turning policy into law is one of the most challenging aspects of law reform. The best ideas will remain just that, unless they can be made to work in practice. In a subject like land law, where much of the law is statute-based, the exercise of drafting is possibly the most crucial and difficult part of law reform. Many of our final reports are published with a draft Bill, written by Parliamentary Counsel who are seconded to the Law Commission. The ability to provide legislation, which is ready to be picked up and introduced into Parliament, is one of the keys to our success in obtaining the implementation of our recommendations. Reading our reports, and examining our Bills, provides a first-hand account of the relationship between policy and law, and an insight into the nature of law reform as the art of the possible.