Law Reform (AQA A-Level Law): Revision Notes
Law reform
Assessment: This content will be assessed in Paper 2.
The work of the Law Commission
Establishment and composition
The Law Commission was established in 1965 under the Law Commissions Act 1965. This body operates on a full-time basis to improve the quality and accessibility of English law.
The Law Commission consists of:
- A Chairperson (a High Court Judge or Appeal Court Judge, appointed by the Lord Chancellor and Secretary of State for Justice for up to three years)
- Four other Law Commissioners (experienced judges, barristers, solicitors, or legal academics)
- Support and research staff who assist with investigations and drafting
Core aims of the Law Commission
The Law Commission works to ensure that English law meets four key objectives:
- Fair – the law should operate justly and equitably
- Modern – the law should reflect contemporary society and values
- Simple – the law should be accessible and easy to understand
- Cost-effective – the law should work efficiently without unnecessary expense
These aims guide all of the Commission's work and help determine which areas of law require attention.
Functions of the Law Commission
The Law Commission carries out several distinct functions to improve English law. Each function serves a different purpose in maintaining and developing the legal system.
Reform
Reform means updating the law to ensure it remains relevant and effective. The Law Commission can either select areas of law that need updating based on its own assessment, or the government can refer specific areas through the Lord Chancellor.
The reform process involves several stages:
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Consultation stage: The Commission publishes a consultation paper that:
- Sets out the current law in the area under review
- Explains why reform is necessary
- Identifies problems with existing law
- Suggests potential solutions
- Includes questions for interested parties
- May provide comparative analysis of how other countries handle the same legal issue
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Response period: Interested parties, including legal professionals, academics, public bodies, and affected individuals, submit their views
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Report stage: After analysing responses, the Commission publishes a final report that often includes a draft Bill – a proposed Act of Parliament ready for the legislative process
Worked Example: The Reform Process in Action
In July 2017, the Law Commission launched a consultation on the law of wills, noting that Victorian-era legislation needed modernising to account for changes in society, technology, and medical understanding.
This demonstrates all three stages:
- Consultation: Published a paper identifying problems with outdated wills legislation
- Response period: Solicited views from legal professionals, will-writing services, and the public
- Report stage: Analysed responses to develop reform proposals
Codification
Codification is a comprehensive process that involves reviewing all existing law on a single topic, creating a complete legal code, and integrating all relevant provisions into one new Act of Parliament. This differs from simply consolidating existing laws because codification involves reviewing and potentially rewriting legal principles.
Codification is more ambitious than consolidation because it doesn't just reorganise existing law – it involves reviewing and potentially rewriting all legal principles on a topic to create a complete, unified code.
Historical context and challenges:
When first established, the Law Commission aimed to codify major areas of English law, including:
- Family law
- Contract law
- Landlord and tenant law
- The law of evidence
However, the scale of this ambition proved too large. Each area contained centuries of common law, statutory provisions, and case law that would require extensive review and drafting.
The criminal code project:
In 1985, after years of research, the Law Commission published a draft criminal code containing all major general principles of criminal law. Despite this significant achievement, the government has never implemented this code.
In 2008, the Law Commission acknowledged the practical difficulties of large-scale codification and announced it would focus on smaller, more manageable projects. This pragmatic approach recognises that the government is more likely to implement targeted reforms than wholesale rewrites of entire legal areas.
Consolidation
Consolidation means bringing together all existing statutory provisions in an area of law into one Act of Parliament. This differs fundamentally from codification because the law itself is not reviewed or changed – it is simply reorganised for clarity and accessibility.
Consolidation makes the law easier to find and use because practitioners and the public can refer to a single Act rather than searching through multiple pieces of legislation spanning many years.
Worked Example: Sentencing Code Consolidation
Following a July 2017 consultation on sentencing law, the Law Commission recommended consolidation to 'modernise the law, bring greater transparency and improve efficiency'.
This work resulted in the Sentencing Code enacted by the Sentencing Act 2020, which brought together all sentencing procedure law into one accessible statute.
Key outcome: Legal professionals can now refer to one comprehensive Act instead of searching through numerous pieces of legislation passed over many decades.
Repeal
Repeal occurs when an Act of Parliament ceases to be law. Only Parliament has the power to repeal legislation, but the Law Commission plays an important advisory role by identifying statutes that are no longer needed or relevant.
The Commission examines old legislation to determine whether it still serves any purpose in modern society. Some Acts remain on the statute book despite being completely obsolete.
Worked Example: Ancient Legislation
The Statute of Marlborough 1267, passed during the reign of Henry III, remained law for centuries despite being irrelevant to modern society. This demonstrates why the Law Commission's repeal function is essential for decluttering the statute book.
Success in this area:
Repeal represents the Law Commission's most successful function. Since 1965, the Commission's work has led to 19 Bills being enacted by Parliament, which together have repealed more than 3000 Acts. This significant achievement has helped declutter the statute book and make English law more accessible.
Advantages of reform through the Law Commission
The Law Commission offers several significant benefits as a law reform body. Understanding these advantages helps explain why this institution plays such an important role in the English legal system.
Parliamentary time savings
Parliament faces constant pressure on its legislative time. Political matters, urgent policy decisions, and government business compete for limited parliamentary hours. By delegating law reform work to the Law Commission, Parliament can focus on political priorities while ensuring technical legal improvements still occur.
The examination and repeal of over 3000 Acts demonstrates how much parliamentary time the Commission has saved. If Parliament had to review each outdated statute individually, it would consume enormous amounts of time that could be better spent on new policy initiatives.
Expert legal research
The Law Commission consists of highly qualified legal professionals who bring specialist knowledge to their work. This expertise ensures that reform proposals are practical, legally sound, and properly researched.
The Chairperson is always a senior judge (High Court or Appeal Court level), bringing judicial experience and understanding of how law operates in practice. The four other Commissioners are experienced legal professionals – judges, barristers, solicitors, or academic lawyers – who contribute diverse perspectives and specialist knowledge.
This combination of judicial, practitioner, and academic expertise means recommendations are based on thorough understanding of both legal theory and practical application.
Comprehensive consultation
Before proposing reforms, the Law Commission conducts extensive consultation with interested parties. This inclusive process ensures that those affected by legal changes can contribute their views and expertise.
Worked Example: Sentencing Code Consultation Process
The consultation on the Sentencing Code (published 27 July 2017 with responses due by 26 January 2018) gave all interested parties six months to consider proposals and submit detailed responses.
Timeline:
- July 2017: Consultation published
- January 2018: Responses deadline
- December 2020: Sentencing Code came into effect
Result: The Sentencing Code consolidated existing sentencing procedure law into the single Sentencing Act 2020, reflecting insights from the comprehensive consultation process.
This consultation process means reforms reflect a wide range of perspectives, not just the Commission's initial views.
Holistic approach to legal areas
The Law Commission considers whole areas of law together, rather than making isolated changes. This comprehensive approach ensures that reforms in one area do not create unforeseen problems in related areas.
Worked Example: Contempt of Court Project
In 2012, the Law Commission published a paper on Contempt of Court that addressed multiple related issues:
- Contempt in the face of the court
- Court reporting restrictions
- Juror misconduct and internet publications
- Scandalising the court
By examining these interconnected issues together, the Commission could ensure that proposals in one area complemented rather than contradicted proposals in related areas. This holistic approach prevents fragmentary reforms that might create inconsistencies.
Improved accessibility through consolidation
When the Law Commission brings together laws on one topic into a single Act, it makes the law significantly easier to find and understand. Legal professionals, businesses, and ordinary citizens can refer to one statute rather than searching through multiple Acts passed over many years.
The Powers of the Criminal Courts (Sentencing) Bill consolidated various sentencing provisions that had previously been scattered across different statutes. This consolidation made sentencing law far more accessible to practitioners and the public alike.
Simplification and modernisation
The Commission actively works to make law simpler and more accessible to non-lawyers. This democratises legal knowledge and helps ensure people can understand the laws that govern them.
The Commission's report on Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Law Com No. 358) aimed to clarify these ancient common law offences and make them comprehensible to modern users.
Disadvantages of reform through the Law Commission
Despite its strengths, the Law Commission faces several significant limitations that reduce its effectiveness as a law reform body. These disadvantages often stem from the Commission's relationship with Parliament and government rather than the quality of its work.
Slow government implementation
The government controls which Law Commission proposals become law. Even when the Commission identifies clear problems and proposes detailed solutions, political priorities may delay or prevent implementation. Large reform projects can remain unimplemented for years or even decades because they are not politically important enough to secure parliamentary time.
Critical Issue: Offences Against the Person
The Law Commission's report on Offences Against the Person (Law Com No. 218) proposed comprehensive reforms to Victorian-era violence offences. Despite clear need for modernisation and detailed proposals, the government has not implemented these reforms.
This delay means that problems identified by legal experts continue to affect the justice system while the Commission's solutions gather dust.
Some reforms never implemented
In the most severe cases, Law Commission proposals may never become law at all. Years of expert research, consultation, and drafting can be entirely wasted if the government decides not to proceed.
Evidence of Implementation Failure
The Commission's report on Liability for Psychiatric Illness (Law Com No. 249) proposed reforms to clarify when claimants could recover damages for mental harm. Despite the project consuming significant time and public money, the government has not implemented these proposals.
This represents a serious waste of resources – expert legal professionals spend months or years developing solutions that never benefit the public, despite clear evidence of problems in the existing law.
Lack of parliamentary scrutiny time
When the government does implement Law Commission proposals, parliamentary time constraints may prevent thorough debate and scrutiny. MPs may not have adequate opportunity to examine complex legal changes before voting on them.
The Coroners and Justice Act 2009 adopted selected elements of Law Com No. 290 (the Commission's proposals on homicide law reform) without implementing the complete package. Parliament did not properly scrutinise what implications this selective implementation would have, potentially creating new inconsistencies in the law.
This "cherry-picking" approach undermines the Commission's careful work and may create unforeseen problems.
Changes without legal expertise
Parliament may amend Law Commission proposals during the legislative process without the benefit of legal expertise. When politicians make changes for political reasons, they may inadvertently undermine the legal coherence that the Commission's experts worked to achieve.
The legal expertise invested in developing reform proposals can be ignored or contradicted by parliamentary amendments made without equivalent specialist knowledge.
Evidence from Homicide Reforms
The homicide reforms in the Coroners and Justice Act 2009 departed from the Law Commission's recommendations in several respects, leading to criticism that the final legislation was less coherent than the Commission's original proposals.
This demonstrates how political amendments without equivalent legal expertise can compromise the quality of law reform.
Exam guidance: When evaluating law reform through the Law Commission, always explain why each advantage or disadvantage matters – do not simply list points. Support your analysis with specific examples such as Law Commission report numbers, statutes that implemented (or failed to implement) proposals, and evidence of success or failure. Demonstrating knowledge of current Law Commission projects shows up-to-date understanding and can strengthen exam responses.
Key Points to Remember:
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The Law Commission was established in 1965 under the Law Commissions Act 1965 to keep English law fair, modern, simple, and cost-effective
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The Commission's key functions are reform (updating law), codification (creating comprehensive legal codes), consolidation (bringing existing laws together), and repeal (removing outdated legislation)
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The reform process involves consultation, analysis of responses, and production of reports containing draft Bills for Parliament
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Major advantages include saving parliamentary time, providing expert legal research, conducting thorough consultation, and making law more accessible
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Key disadvantages include slow government implementation, some proposals never becoming law, limited parliamentary scrutiny time, and political amendments that undermine legal expertise
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The Commission has achieved greatest success with repeal work – over 3000 Acts repealed since 1965