2A.5.2 Law reform by the Law Commission

Question 1

The Law Commission

Answer 1

Set up by the Law Commission Act 1965. It is a full-time body, which consists of:
- A chairperson
- A High Court Judge
- Four other Law Commissioners who are experts in certain areas of law

There are also researchers and draftsmen who prepare proposed Bills.

Question 2

Main roles of the Law Commission, as set out in s3 Law Commissions Act 1965

Answer 2

The role of the Commission is to consider areas of law that need reform.

Their main roles include:
- To review areas of law
- To codify or consolidate areas of law
- To repeal old unnecessary law
- Simplify and modernise law

Question 3

How does the Law Commission work?

Answer 3

Topics may be referred to it by government, or it may select itself areas of law in need of reform. The process is as follows:

1) The Commission researches the area of law needing reform.

2) It punishes a consultation paper, seeking views on possible reform from lawyers, academics and anyone with an interest in the area under investigation. The consultation paper will suggest options for reform.

3) Following responses to the consultation paper, the Commission will then draw up proposals for reform presented in a researched report. There will often by a draft Bill attached to the report which can be considered by Parliament.

Question 4

Repeal of existing law

Answer 4

There remain in force many old, unnecessary and irrelevant statutes. In order to deal with these, the Law Commission investigates whether they are still required and will prepare a Repeals Bill for Parliament to consider for those that are unnecessary or irrelevant.

By 2015 there had been 19 Statute Law (Repeals) Acts, and the whole of 3000 old Acts had been repealed.

This ‘tidying-up’ of the statute book helps to make the law more accessible.

Question 5

Consolidation

Answer 5

In some areas of law there are a number of statutes which set out a small part of the total law. The aim of consolidation is to draw all the existing provisions together in one Act to make the law more accessible.

The Law Commission produces about 5 Consolidation Bills each year. However, consolidation is not always successful. For example, for many years the law on sentencing practice and procedures was contained in:
* The Powers of Criminal Courts (Sentencing) Act 2000
* The Criminal Justice and Public Order Act 1994
* The Criminal Justice Act 2003
* The Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Question 6

Codification

Answer 6

This involves bringing together all the law, both statutory and judicial precedent, on a topic into one single law. Again, the intention is to make the law more understandable, consistent and easier to find.

The Law Commission worked on producing a Sentencing Code so that all the law on sentencing adult and young offenders is in one document instead of all the Acts referred to above. This was achieved by the passing of the Sentencing Act 2020, which came into force on 1st December 2020. The Sentencing Code is concerned with sentencing procedure and does not introduce any new law or change any sentences. It will apply to all offenders convicted of an offence after 1st October 2020.

Question 7

Give examples of laws which have been enacted by Parliament following suggestions by the Law Commission

Answer 7

• Occupiers’ Liability Act 1984, which extended occupiers’ liability to include a duty to trespassers
• The Fraud Act 2006, which simplified the law on fraud
• The Criminal Justice and Courts Act 2015, which included reform of contempt by jurors and the creation of new offences of juror misconduct in relation to using the internet.

Question 8

What percentage of suggestions by the Law Commission have become law?

Answer 8

Only 50% - mainly due to a lack of parliamentary time and interest.

Question 9

Advantages of reform through the Law Commission

Answer 9

• Law Commission consults before finalising its proposal.
• Areas of law are researched by legal experts.
• Non-political.
• Reform can simplify and modernise the law.
• Whole areas of law can be considered, not just small issues.
• If Parliament enacts the reform of a whole area of law, then the law is in one Act, such as the Powers of Criminal Courts (Sentencing) Act 2000 and it is easier to find and to understand.

Question 10

Disadvantages of reform through the Law Commission

Answer 10

• The government does not have to consult the Law Commission on changes to the law. This can mean that major changes are made without the benefit of the Law Commission’s legal knowledge and extensive research.
• Changes can cause the law to be less satisfactory than the original proposals.
• Lack of parliamentary time.
• Government may not follow all of the Law Commission’s recommendations when reforming the law
• Changes to the wording as the Bill goes through Parliament. Therefore, the act will be very different to the Bill.
• Failure of Parliament to implement reforms.