Law Reform (OCR A-Level Law): Revision Notes
Advantages and Disadvantages of Influences on Law Making
Introduction to the Law Commission
The Law Commission is a permanent, independent body established in 1965 under the Law Commissions Act 1965. This statutory body plays a crucial role in reviewing and reforming English law to ensure it remains fit for purpose in modern society.
The Commission operates with a clear leadership structure. It is headed by a Chair, who must be either a High Court Judge or Appeal Court Judge, appointed by the Lord Chancellor and Secretary of State for Justice for a term of up to three years. Supporting the Chair are four other Law Commissioners, all of whom are experienced legal professionals—typically judges, barristers, solicitors, or academic teachers of law.
This composition ensures that law reform proposals are grounded in practical legal expertise and experience.
The aims of the Law Commission
The Commission's work is guided by four fundamental objectives, which shape all its reform proposals:
The Four Aims of the Law Commission:
- Fair: ensuring the law operates justly for all parties
- Modern: keeping the law up-to-date with contemporary society
- Simple: making the law accessible and understandable
- Cost-effective: ensuring legal processes do not impose unnecessary financial burdens
The work of the Law Commission
To understand the advantages and disadvantages of the Law Commission's influence on law making, it is important to recognise the four main areas of work it undertakes:
Reform involves updating outdated laws. The Commission identifies areas requiring modernisation either through its own initiative or through referrals from government via the Lord Chancellor. The reform process typically begins with a consultation document that sets out the current law, explains why reform is needed, invites responses from interested parties, and may include comparative analysis of how other countries handle the same legal issues. Following consultation, the Commission publishes a report, often containing a draft Bill ready for Parliament to consider.
Codification means creating a complete, comprehensive code of law on a single topic by reviewing all relevant legal provisions. When first established, the Law Commission aimed to codify major areas including family law, contract law, landlord and tenant law, and the law of evidence. However, the enormous scale of this ambition led to it being abandoned.
In 1985, the Commission published a draft criminal code containing all main general principles of criminal law, but successive governments never implemented it. By 2008, the Law Commission acknowledged that focusing on smaller, more manageable areas would be more likely to achieve governmental adoption.
Consolidation differs from codification in that it simply brings together all existing provisions in an area of law into one Act without reviewing or changing the substantive law. For example, in July 2017, the Law Commission launched a consultation on consolidating sentencing law to modernise it, increase transparency, and improve efficiency.
Repeal involves identifying Acts of Parliament that are no longer needed and recommending their removal from the statute book. Only Parliament has the power to repeal an Act, but the Law Commission advises on which Acts should be repealed.
This has been the Commission's most successful area of work, with 19 Bills enacted since 1965 that have repealed over 3000 redundant Acts, including ancient legislation such as the Statute of Marlborough 1267 from the reign of Henry III.
Advantages of reform through the Law Commission
The Law Commission's influence on law making brings several significant benefits to the English legal system. Each advantage demonstrates how specialist, independent expertise can enhance the quality and effectiveness of legislation.
Freeing up parliamentary time
One of the most practical advantages is that the Law Commission removes the burden of detailed legal research and drafting from Parliament itself. MPs and peers can focus their attention on politically significant matters and constituency issues, while this essential but time-consuming technical work is handled by a dedicated body.
Example: The Scale of Parliamentary Time Saved
Since 1965, the Commission has examined and identified over 3000 Acts as redundant and secured their repeal. This systematic clearing of obsolete legislation would have been impossible for Parliament to undertake alongside its other responsibilities.
Without the Law Commission, Parliament would need to allocate significant debating time to these technical legal matters, reducing the time available for political priorities and constituency representation.
Legal expertise and practical recommendations
The composition of the Law Commission ensures that all reform proposals are grounded in deep legal knowledge and practical experience. The Chair, as a High Court or Appeal Court Judge, brings judicial perspective and understanding of how the law operates in practice. The four other Commissioners, drawn from experienced judges, barristers, solicitors, and legal academics, provide diverse perspectives from different areas of legal practice and scholarship.
This expert composition means that recommendations are not merely theoretical but take into account how proposed changes would work in real courtroom situations and legal practice. The practical nature of these recommendations increases the likelihood that reforms will achieve their intended objectives without creating unintended problems or requiring subsequent amendment.
Comprehensive consultation process
Before finalising any reform proposals, the Law Commission conducts extensive consultation with all interested parties. This democratic and inclusive approach ensures that those who will be affected by legal changes have an opportunity to contribute their views and expertise.
Example: The Sentencing Code Consultation
When the Commission published The Sentencing Code consultation on 27 July 2017 (with responses due by 26 January 2018), it invited input from judges, legal practitioners, academics, and other stakeholders.
This consultation process serves multiple purposes:
- It identifies practical concerns that legal experts might not have anticipated
- It builds consensus around reform proposals
- It gives legitimacy to the final recommendations
- It helps ensure that reforms will work effectively in practice
The consultation typically includes an explanation of current problems, suggestions for reform, questions for consideration, and comparative examples from other jurisdictions.
Holistic consideration of whole areas of law
Unlike ad hoc legislative reforms that may focus narrowly on one issue, the Law Commission examines entire areas of law systematically. This comprehensive approach ensures that the impact of proposed changes on related legal principles is fully explored and understood.
Example: Contempt of Court Reform
A clear example of this holistic approach is the 2012 Law Commission paper on contempt of court, which examined multiple interconnected aspects including:
- Contempt in the face of the court
- Court reporting restrictions
- Juror misconduct and internet publications
- Scandalising the court
By considering all these related matters together, the Commission could ensure that reforms in one area would not create problems or inconsistencies in another.
This comprehensive methodology contrasts with piecemeal legislative reform, which can create gaps, overlaps, or contradictions between different provisions.
Consolidation and accessibility
The Law Commission's work in bringing together all provisions on a single topic into one Act significantly improves legal accessibility. When law on a particular subject is scattered across multiple Acts passed over many years, legal practitioners, judges, and citizens find it difficult to identify what the current law actually is.
The Powers of the Criminal Courts (Sentencing) Bill exemplifies this consolidation work, gathering together sentencing provisions previously spread across various statutes. This consolidation makes the law easier to find, as all relevant provisions are located in one place, and it facilitates legal research and advice, as practitioners do not need to search through decades of legislation.
Improved accessibility benefits not only legal professionals but also ordinary citizens seeking to understand their rights and obligations.
Simplification and modernisation
Beyond merely consolidating existing law, the Law Commission works to simplify and modernise legal language and concepts. Complex, archaic legal terminology and outdated concepts can make the law unnecessarily difficult to understand and apply. By translating these into clear, contemporary language and updating concepts to reflect modern society, the Commission makes the law more accessible to all users of the legal system.
Example: Criminal Law Simplification
The Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Law Com No. 358) demonstrates this work, translating complex common law offences into clear, modern statutory language.
Simplification is particularly important for areas of law where non-lawyers need to understand their legal position, such as consumer law, employment law, or everyday criminal offences. When the law is expressed in plain, modern English using concepts that make sense in contemporary society, compliance increases, disputes decrease, and justice becomes more accessible.
Disadvantages of reform through the Law Commission
Despite the substantial advantages, the Law Commission's influence on law making faces significant practical limitations that can undermine its effectiveness and waste considerable public resources.
Slow governmental implementation
A persistent and serious problem is that governments are often extremely slow to implement Law Commission reforms, particularly when these reforms lack political importance or urgency. Large areas of carefully researched work can remain unimplemented for years or decades because they are not politically prominent or electorally significant.
Example: Offences Against the Person
A notable example is the Offences Against the Person (Law Com No. 218), which proposed comprehensive reform of Victorian-era assault and wounding offences. Despite the clear need for modernisation identified by legal experts, successive governments have failed to find parliamentary time to implement these reforms.
This delay means that courts continue to apply outdated and sometimes contradictory Victorian legislation, and the considerable public money and expert time invested in researching and drafting the reforms is wasted. The problem is particularly acute when governments prioritise politically visible initiatives over technical legal improvements, even when the latter would significantly benefit the administration of justice.
Complete non-implementation of some reforms
Even more problematic than delayed implementation is the complete abandonment of certain Law Commission proposals. When reforms are never implemented despite clear expert recommendations, significant public resources are entirely wasted.
Example: Psychiatric Illness Liability
The report on Liability for Psychiatric Illness (Law Com No. 249) exemplifies this problem. The Commission invested considerable time and expertise in researching this complex area of law and producing detailed reform proposals, yet these recommendations have never been enacted.
This non-implementation means that identified problems in the law remain unresolved, creating ongoing injustice or uncertainty for those affected. It also damages the morale and credibility of the Law Commission itself, as legal experts see their careful work ignored for political reasons.
The waste of public money is significant: the Commission employs highly qualified legal professionals and support staff, all funded by taxpayers, yet their work product may simply be shelved indefinitely.
Insufficient parliamentary time for debate
Even when government decides to implement Law Commission reforms, lack of parliamentary time can mean that proposals are not thoroughly debated and scrutinised before enactment. This rushed process increases the risk that unintended consequences or practical problems will not be identified until the legislation is in force.
The Danger of Insufficient Scrutiny
When Parliament fails to properly examine and debate reform proposals, it may:
- Not fully understand the changes being made
- Not identify potential conflicts with other areas of law
- Not appreciate how the reforms will operate in practice
This undermines one of the key advantages of the Law Commission—its expert analysis—because Parliament does not take sufficient time to benefit from that expertise through proper consideration and debate.
Example: Coroners and Justice Act 2009
The Coroners and Justice Act 2009 provides a clear example of this danger. The Act selectively incorporated elements from Law Com No. 290 without comprehensive parliamentary scrutiny of what the implications would be.
Parliamentary amendments without legal expertise
Perhaps the most problematic disadvantage occurs when Parliament makes changes to carefully drafted Law Commission proposals without the benefit of legal expertise. The Law Commission's recommendations are the product of extensive research, expert analysis, and comprehensive consultation.
When Parliament amends these proposals—often for political reasons or in response to media pressure—it may undermine the coherent legal framework that the Commission carefully constructed.
Example: Political Amendments Undermining Expert Analysis
The Coroners and Justice Act 2009 again demonstrates this problem. Parliamentary amendments to Law Commission proposals in this Act were made without the rigorous legal analysis that went into the original recommendations, potentially creating inconsistencies or unintended effects.
This selective cherry-picking of reforms, combined with political amendments, means that the final legislation may lack the coherence and effectiveness of the original Law Commission proposals. It also represents a waste of the Commission's expertise, as Parliament overrides specialist legal knowledge with political judgments.
Remember!
Key Points to Remember:
- The Law Commission is an independent body of legal experts established in 1965 to ensure the law is fair, modern, simple, and cost-effective
- Major advantages include saving parliamentary time, providing expert research, conducting comprehensive consultation, examining whole areas of law holistically, and improving accessibility through consolidation and simplification
- Significant disadvantages centre on implementation problems: government delays, complete non-implementation of some reforms, insufficient parliamentary debate time, and political amendments that undermine expert legal analysis
- The Commission has achieved notable success in repealing over 3000 obsolete Acts but has seen important reforms like Offences Against the Person remain unimplemented for decades
- The Coroners and Justice Act 2009 illustrates how political imperatives can override careful legal expertise, with Parliament selectively adopting reforms without proper scrutiny
Key Terms:
- Law Commission: statutory body of legal experts that reviews and recommends reforms to English law
- Reform: the process of updating and improving existing law
- Codification: creating a comprehensive code that brings together all law on one topic
- Consolidation: gathering existing legal provisions into one Act without changing the substance of the law
- Repeal: the formal removal of an Act of Parliament from the statute book
- Consultation: the process by which the Law Commission invites responses from interested parties before finalising reform proposals
Critical Examples:
- Offences Against the Person (Law Com No. 218): demonstrates how important reforms can remain unimplemented despite clear need
- Liability for Psychiatric Illness (Law Com No. 249): illustrates complete non-implementation and waste of resources
- Coroners and Justice Act 2009: shows the problems of selective implementation and political amendments without proper legal expertise
- Over 3000 Acts repealed: evidences the Commission's success in clearing obsolete legislation