What is the Law Commission?

The Law Commission is the independent body set up by Parliament in 1965 (along with a similar Commission for Scotland) to keep the law of England and Wales under review and to recommend reform when it is needed.

Our law is a combination of the common law - decisions of judges of the higher courts - and of statute law enacted or authorised by Parliament; sometimes those decisions and statutes may go back many centuries.

Reform of the law is a task for Parliament and not for the judges who, in the course of deciding a particular case, are not usually able to consider the wider social and legal implications of a particular decision. But proposals for reform may well not be satisfactory unless they are preceded by research and by wide consultation with experts and with those who may be affected by the reforms.

Their job is to carry out this research and consultation, and to modernise, improve and simplify the law by formulating proposals on a systematic basis for consideration by Parliament.

Who are the Members of the Law Commission?

There are five Commissioners all of whom work full-time at the Commission. The Chairman is a High Court judge. The other four Commissioners are experienced barristers, solicitors or teachers of law.

They are appointed by the 'Lord Chancellor and Secretary of State for Justice' for up to five years, and their appointments can be extended.

They are supported by a Secretary to the Commission and 15 other members of the Government Legal Service, four or five Parliamentary Counsel (who draft the Bills to amend and consolidate the law), and about 15 research assistants (usually recently qualified law graduates), as well as a librarian and other administrative staff.

What does the Law Commission do?

Their main work is the reform of the law, but they also work on consolidation of statutes and statute law revision. The Commission does not give legal advice to individuals, nor does it investigate complaints.

Law Reform Projects

At any one time the Commission will be engaged on between 20 and 30 projects of law reform, at different stages of completion. A typical project will begin with a study of the area of law in question, and an attempt to identify its defects. Foreign systems of law will be examined to see how they deal with similar problems.

It will usually appear that a number of different solutions are possible, and a consultation paper will be issued setting out in detail the existing law and its defects, giving the arguments for and against the possible solutions, and inviting comments.

The paper will be circulated widely to practising and academic lawyers, and other interested persons and bodies including the media. It will be available to the public at The Stationery Office and on order from other bookshops.

This process enables the Commissioners to draw, not just on their own experience, but also on that of others - lawyers, other professionals, interest groups, the public and especially those likely to be particularly affected by a change in the area of law in question.

In the light of the comments they receive, and of their own knowledge of the law, they will decide on the solution which seems to them best.

They will prepare a report to the 'Lord Chancellor and Secretary of State for Justice', giving their final recommendations with the reasons for them; and if, as is nearly always the case, they recommend a change in the law, they will append to their report a draft Bill to give effect to their recommendations.

That Bill is ready to be introduced into Parliament. The report, like the consultation paper, will be available to the general public.

Reform of What?

The Law Commissions Act requires the Commission to keep "all the law" under review. In choosing the projects on which to work they are guided by the views of judges, lawyers, government departments and the general public, who tell them of the difficulties they have experienced in applying the law or in seeking legal remedies.

The main areas of law on which they work are included in law reform programmes approved by the 'Lord Chancellor and Secretary of State for Justice'. They include contract, the law of landlord and tenant, the law on transfer of land, criminal law, family law, trusts, the law relating to mentally incapacitated adults, Judicial review and damages. In addition they work on other law reform projects, which have been referred to them usually (but not exclusively) by the Government.

Some examples of legislation following their reports are the

• Unfair Contract Terms Act 1977, restricting the ability to limit or exclude liability in consumer contracts; the

• Family Law Reform Act 1987, removing the legal disadvantages attached to illegitimacy; the

• Children Act 1989, rewriting the whole of the law on children; the

• Computer Misuse Act 1990, introducing new criminal offences relating to the misuse of computers; and the

• Access to Neighbouring Land Act 1992, allowing the courts to make access orders giving people the right where necessary to enter onto their neighbours' land.

Codification and consolidation

• Codification gathers all previous statutes and case law together in one act for example Sale of Goods Act 1994 codified the law.

• Consolidating Act does not include the case law gathers together all previous statutes into one act, contains no new provisions.

Codification

In most countries whole areas of law are contained in a single code rather than, as in England, being divided between the common law, which is derived from decisions of judges over the centuries, and statute law enacted by Parliament.

It has always been the Commission's objective that English law should similarly be governed by a series of statutory codes, to make the law more accessible to the citizen and easier for the courts and litigants to understand and handle. For instance, in family law much of the Commission's work has resulted in the production of what is in effect a code, though contained in a series of separate Acts of Parliament.

More particularly, since 1968 the Commission has had in hand a project to produce a criminal code, such as exists in almost every other country in the world. In 1989 they published a Draft Code in rational and modern form and language, and they have now embarked upon a programme to produce a series of draft Bills, based on the Code but incorporating appropriate law reform treatment, which will in themselves make substantial improvements in the law. If enacted, these Bills will form the criminal code, which this country has lacked for so long.

Consolidation

Law reform is the Commission’s main concern, but not its only one. Another important activity is the consolidation of statute law, putting together in one Act of Parliament, or in a group of Acts, all the existing statutory provisions previously located in several different Acts, all of which can then be repealed.

In 1992 all the law on social security was consolidated into three Acts. The law itself remains unchanged, but those who use it - both lawyers and the courts, and the general public - can now find it all in one place.

Statute Law Revision

This activity is also aimed at simplifying the statute book, but in a rather different way. Parliament has been enacting statutes for over 700 years. The majority of the older statutes have been repealed, but there remain on the statute book a number that are obsolete or unnecessary.

A Statute Law (Repeals) Act, prepared at the Commission, will enable a large number of statutes, which are no longer of any practical use to be repealed together.

While it is important to tidy up the statute book, it is just as important not to accidentally remove the legal basis for someone's rights, and this activity, too, therefore has to be preceded by a great deal of consultation. Since 1965 nearly 5000 enactments have been repealed by Statute Law (Repeals) Acts.

The Statute Book

"Statute Book" is the collective noun for statutes. A metaphor for all the laws of England and Wales. There is no general book that contains all statutes.

Over 700 years they have been produced on various materials, either in scrolls or flat documents. The nearest modern equivalent of a statute book is the UK Statute Law Database (SLD).

The SLD carries most (but not all) types of legislation, both primary and secondary.

Most types of primary legislation are held in updated form incorporating amendments. Most types of secondary legislation on SLD are not revised and are held only in the form in which they were originally made.

Jellicoe Procedure (Special Public Bill Procedure)

The Special Public Bill Procedure (the Jellicoe Procedure) is available in the House of Lords, but has had limited success. It was used for two Law Commission Bills in 1995 and apparently none since. The Jellicoe Procedure is still available but was certainly not used between 1998 and 2003. In 2004, Lord Brightman said in the Lords that Jellicoe had been unused since 1995.

The procedure is available for Law Commission Bills, to examine non-controversial but technical Bills, which receive appropriate expert scrutiny without delaying business on the floor of either House.

When the Jellicoe Procedure is used in the House of Lords, the committee stage is taken in a committee room and not on the floor of the House. Witnesses can attend and be heard.

Sometimes it is referred to as ‘fast track’, which is a misnomer, as the speed of a Bill through Parliament is not necessarily quicker. Experience of Jellicoe has been disappointing, particularly because the evidence stage was found to consume considerable amounts of Ministerial and official resource, without sufficiently beneficial reduction in time on the floor of the House.

The Family Homes and Domestic Violence Bill in 1995 was considered under the Jellicoe Procedure. The Law Commission, following extensive consultation, had proposed the Bill However it was not possible to resolve those issues in time for the Bill to complete its stages in the last Session. The Bill was later considered by Parliament under the usual procedure.
 

Is it all worth it?

The Commission's recommendations for law reform will have a profound practical effect on the legal rights, duties and liabilities of a large number of people - but only if they are implemented by Parliament. They can make recommendations, but only Parliament can change the law.

So far, however, more than two-thirds of the Commission's law reform reports have been implemented, and a number await the Government's reactions, or Parliamentary time.

As a result of the Commission's ongoing work, large areas of the law have been the subject of systematic investigation and improvement.

Antiquated laws have been abolished, and new remedies devised appropriate for the times in which we live. Much has already been done, but there is still much more to do.