After a distinguished academic career, Nick Hopkins has returned to the Law Commission, where he was once a researcher. Estates Gazette found him very much at home in his new role as law commissioner for property, family and trust law
A young, freshly graduated Nick Hopkins first joined the Law Commission (“LC”) in 1992, working for a year as a research assistant, aiding the then-commissioner, Trevor Aldridge. A little over two decades in academia later – and now Professor Hopkins – he has returned. But this time he is the commissioner for property, family and trust law. After just over four months in his new role, he is fully up to speed: “It is thoroughly enjoyable, extremely rewarding. I am delighted to be back,” he says.
The system works
Hopkins is also glad to find that not much has changed. “The basic modus operandi, the way we do law reform, is pretty much the way it was then,” he says, before emphasising: “Because it works.”
The LC’s process of formulating a project, making provisional recommendations, publishing a consultation paper, having a wide consultation with stakeholders and using that consultation to inform the final recommendations remains the same. But what is different, he says, is the environment in which the LC operates.
“There is a much greater emphasis now on having projects and proposals that will be implemented,” he says. “We now work under a protocol that, when we take on a project, we have agreement with the relevant government department that there is a serious intention to undertake reform in that area. So, at the outset, we know that this is a project the department is potentially interested in taking forward. Because of that we are working much more closely with officials, developing our terms of reference for projects and working towards implementation. But, significantly, what has not changed is that our proposals are independent.”
Another difference, Hopkins says, is an increased focus on securing implementation of reform proposals in non-legislative measures, such as guidance, which have the advantage that they do not need parliamentary time, increasing the chances of successful adoption.
But, he is quick to point out, acknowledging this strategic focus of the modern day LC, more geared towards implementation, is not to say that effort was wasted before. “As an academic, even reports that were not implemented became quite a valuable point of reference, and were sometimes picked up by the courts,” he says.
Passionate about property law
Following his stint as a research assistant, Hopkins spent five years as a law lecturer at the University of Durham, before moving to the University of Southampton, where he spent 15 years, ultimately becoming professor of law. In 2013, he joined the University of Reading, before finally hanging up his gown to return to the LC in October last year.
Throughout his time as a lecturer and tutor, Hopkins has tried to instil in the next generation the same fascination with property law that quickly arose in him as a student at Queen Mary University of London. There, his attention was caught by the interplay of complex legislation – “a body of rules that seemed really technical, very conceptual and very difficult” – and the actual consequences for real people. “Once I had made that connection between something that seemed terribly abstract on one hand and its impact on people on the other, and realised that these rules are really socially interesting, that is what maintained my interest,” he says. “Teaching land has been a really important thing for me – trying to instil in my students that same spark of interest that I had instilled in me.”
The holistic approach
Hopkins’ research as an academic involved a holistic approach to property law that sought to view it in its wider context of other private and public law principles and societal factors. Such a way of working should stand him in good stead as a law commissioner, but he is clear about separating his former and current roles.
“I draw a line between what I did in my previous life and what I am doing now,” he says. “The holistic view that I have as a law commissioner is different from the one I had as an academic. As an academic, you try to step back and bring together disparate ideas and themes, whereas, as a law commissioner, that holistic approach is more to do with looking at different stakeholders, and looking at how reform proposals are going to work for different people. When, as a team, we are discussing possible proposals, we are always thinking what does this mean to different types of registered proprietors, from sophisticated landowners to someone who owns their own home? What does it mean to solicitors, conveyancers and professionals who are using the system?”
Land registration
High on Hopkins’ current agenda is land registration, with a consultation paper due this spring. But he stresses that the exercise being carried out by the LC this time is very different to the one that led to the Land Registration Act 2002 (“the 2002 Act”).
“We are not starting again,” he explains. “We are looking at the 2002 Act, at what works, and what doesn’t work as well as it could. This is a technical refinement of the Act. The reassurance is that the changes we are going to be consulting on are not going to be of the scale that the 2002 Act was compared to the Land Registration Act 1925, but they are going to be on areas that we have heard from stakeholders need to be looked at.”
While considering the merits of privatisation of the Land Registry is outside the LC’s remit, Hopkins acknowledges that that possibility, currently under consideration by the government, inevitably “forms part of the story” of its project.
“We are not carrying on in a vacuum,” he says. “We are writing a project consulting on reform of the 2002 Act at a time when the legal framework of the Land Registry is being consulted on separately. We have not closed our eyes to that; we are aware that is happening. But the kind of things we are looking at are things that land registration has to do, whatever the model it is operating under. How do you deal with title fraud? That question doesn’t go away, whatever legal model the Land Registry has.”
The land registration consultation, he adds, illustrates how, in a fast-changing society, the law is something that needs to be kept under review constantly. “The Land Registration Act 2002 was a huge improvement on where we were at that time, but now we have had 14-odd years of that legislation. Law reform is a continuous process, and I don’t think that will ever change,” he says.
A number of other LC reports of interest to property practitioners remain listed as “pending” on its website – among them decade-old proposals for Termination of Tenancies, the five-year old report Making Land Work: Easements, Covenants and Profits à Prendre, and 2014’s Rights to Light. According to Hopkins, the LC remains hopeful that implementation will happen: “We continue to have contact with government officials towards implementation of those projects. We are waiting for decisions on them.”
A March 2012 report entitled The Electronic Communications Code is “slightly further ahead”, after the government accepted the LC’s proposals, only for plans for an updated code to ultimately be removed from the Infrastructure Act 2015 in order for further consultation to be carried out. Hopkins is waiting to see the outcome of that, but is again hopeful.
The Law Commission needs you
In its three-yearly programmes of law reform, the LC goes out for consultation, asking the professions and the public what areas are in need of reform. In addition, it receives submissions on an ad hoc basis where a minister has picked up on an issue, and is keen to take reform forward. “But ministers are not plucking these out of thin air,” says Hopkins. “It is stakeholders bringing to government departments areas that are in need of reform. That can be a judge in a decision, it can be something that has come up in parliament, it can be the professions saying to government, ‘look, there’s a problem and here’s why it’s important’.”
And, with consultation set to begin on the LC’s 13th programme of law reform, Hopkins is also keen to hear from the professions directly. “We don’t necessarily know what the problems are unless we are told about them,” he stresses. “So I would like to hear from people in practice what difficulties they are facing, with as much evidence as they can give of what the problem is, and what the benefits of reform would be.
“The more evidence there is of a problem, the more evidence of the benefits of a solution to that problem, the more likely it is that a minister will pick up on that and it will become an LC project.”
This, he says, is just as important after the LC has made its proposals for reform in an area. Because the LC does not lobby for implementation, it is important that stakeholders facing problems keep making themselves heard.
“The more the government hears about that, that helps remind the government – that’s not this government, but any government – that technical land law is important,” he says. “The challenge there always is with reform in this area is keeping technical land law issues on the agenda of government – making it aware that these issues are really important to the people who are dealing with them and who are directly affected. Government might look at it, with all the pressures on them, and think ‘OK, it’s working, the sky isn’t falling in’. But the point is, it is really not working as well as it could, and that is actually having an impact on individuals.”
In the end, no matter how technical the law, it all comes back to people. The same thing that fascinated Hopkins about property law as a student continues to drive him as a law commissioner.
• Professionals seeking to highlight problem areas in property law can contact the Law Commission directly at: propertyandtrust@lawcommission.gsi.gov.uk
• Current and former projects undertaken by the property, family and trust law team can be found at: www.lawcom.gov.uk/project
