Law Reform by the Law Commission (OCR A-Level Law): Revision Notes
Law Reform by the Law Commission
Introduction to law reform
Law reform is the process of updating, improving, and modernizing legislation to ensure it remains relevant and effective. In England and Wales, there are three main methods through which law reform takes place:
- Parliamentary legislation or judicial decisions – Laws can be reformed through Parliament passing new Acts or through the development of common law by judges in court decisions
- The Law Commission – A dedicated statutory body specifically tasked with reviewing and recommending legal reforms
- Royal Commissions – Temporary bodies established to investigate specific issues and make recommendations
The Law Commission represents the most systematic and organized approach to law reform, operating as a permanent independent body dedicated to keeping the law under continuous review.
Establishment and structure of the Law Commission
Legal basis
The Law Commission was established by the Law Commissions Act 1965 as a statutory independent body. This means it was created by an Act of Parliament and operates with independence from political pressures, allowing it to take an objective, expert-led approach to law reform.
The primary purpose of creating this body was to provide a dedicated organization that could systematically review the law and recommend reforms where necessary, rather than relying solely on Parliament to identify areas requiring change.
The Commission's independence from political pressures is crucial to its effectiveness, enabling it to make recommendations based on legal merit rather than political considerations.
Composition and membership
The Law Commission is a full-time professional body with a specific structure designed to ensure expertise and continuity:
- Chair – A serving High Court Judge who leads the Commission
- Four Law Commissioners – Legal experts who work alongside the Chair
- Support and research staff – A team of legal researchers and administrative staff who assist the Commissioners in their work
This composition ensures the Commission benefits from both senior judicial experience and specialist legal expertise across different areas of law.
Aims of the Law Commission
The Law Commission operates with four core objectives, which guide all of its work. The law should be:
- Fair – Legal rules should be just and equitable, treating all people appropriately
- Modern – Laws must reflect current social values, technological developments, and contemporary needs
- Simple – Legal provisions should be clearly drafted and accessible to those who need to understand them
- Cost-effective – The law should operate efficiently without imposing unnecessary costs on the justice system or society
These aims reflect a recognition that outdated, complex, or unfair laws can create injustice, confusion, and unnecessary expense.
These four objectives work together to ensure that the law serves society effectively. A law that is fair but impossibly complex, or simple but outdated, would fail to meet the Commission's standards for reform.
Work of the Law Commission
The Law Commission performs four main tasks in fulfilling its role. Each involves a different approach to improving the legal system.
Reform
Reform means updating existing law to make it more suitable for current conditions. This is the Law Commission's most active area of work and involves several stages.
How reform works:
The Law Commission can either select areas of law that it believes need updating or can work on areas referred to it by the government through the Lord Chancellor. Once a project is identified, the Commission follows a structured process:
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Consultation stage – The Commission launches a consultation document that sets out the current state of the law and explains why reform is needed.
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Gathering responses – The consultation invites responses from interested parties including legal professionals, academics, affected groups, and members of the public. The consultation paper typically includes:
- A detailed explanation of the problems with current law
- Potential suggestions for how the law could be reformed
- Specific questions for respondents to consider
- Examples of how other countries handle similar legal issues
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Final report – After reviewing all consultation responses, the Commission produces a report containing its recommendations. Crucially, these reports often include a draft Bill – a ready-made piece of legislation that Parliament can use as a starting point if it decides to implement the reforms. This significantly reduces the work Parliament needs to do.
Example of Successful Reform: The Digital Economy Act 2016
In July 2017, the Commission launched a consultation regarding the law on wills, which had become outdated. Following its earlier work, the Digital Economy Act 2016 was passed by Parliament, implementing recommendations from the Law Commission's 2013 report. This demonstrates how the Commission's thorough research and consultation process can lead to actual legislative change that modernizes the law.
Codification
Codification is an ambitious form of law reform that involves reviewing all the law on a particular topic and creating a complete, comprehensive code. This differs from simple reform because it attempts to bring together all legal rules on a subject into one unified document.
The original ambition:
When the Law Commission was first established in 1965, it had an extremely ambitious goal: to codify entire areas of law including:
- All of family law
- All of contract law
- All landlord and tenant laws
- All laws of evidence
However, this proved to be an enormous undertaking. The task of reviewing every single rule, case law principle, and statutory provision in these vast areas was so complex that the idea had to be shelved.
The 1985 draft criminal code:
The Commission's most significant codification project came in 1985 when it published a draft criminal code. This comprehensive document attempted to bring together all the main general principles of criminal law into a single code. Despite the quality of this work, successive governments have never implemented it.
By 2008, the Law Commission acknowledged that full codification was too ambitious and stated it would focus on smaller, more achievable projects that governments would be more likely to adopt. This represents a significant shift in strategy from comprehensive reform to targeted, practical improvements.
Why codification matters:
If successful, codification would make the law much more accessible. Instead of having to research numerous Acts and case law decisions, lawyers and citizens could refer to a single comprehensive code. However, the practical difficulties and the reluctance of Parliament to commit to such large-scale reform have limited the success of codification efforts.
Consolidation
Consolidation means bringing together all existing legal provisions in a particular area into one Act of Parliament. This is important to distinguish from codification:
- Codification involves reviewing and potentially changing the law as it is brought together
- Consolidation simply gathers existing laws together without reviewing or changing their content
The purpose of consolidation:
Over time, laws on the same subject can become scattered across numerous Acts passed at different times. This makes the law difficult to access and understand. Consolidation creates a single, organized source without altering the substance of the law.
Example of Consolidation: Sentencing Law
In July 2017, the Law Commission launched a new consultation to consolidate sentencing law. The aim was to modernize the law, increase transparency, and improve efficiency by bringing all sentencing provisions together rather than having them scattered across multiple pieces of legislation. This makes it easier for judges, lawyers, and defendants to understand the applicable sentencing rules.
Repeal
Repeal means that an Act of Parliament ceases to be law – it is removed from the statute book. While only Parliament has the power to formally repeal legislation, the Law Commission plays a vital role in identifying which Acts should be repealed.
The Commission's role:
The Commission examines old legislation to identify Acts that are:
- No longer relevant to modern society
- Made obsolete by subsequent legislation
- Never actually used in practice
Example of Outdated Law: The Statute of Marlborough 1267
The Commission has identified truly ancient legislation such as the Statute of Marlborough 1267, passed during the reign of Henry III over 750 years ago, as being ready for repeal. This demonstrates how the Commission works to clear the statute book of laws that have no place in modern society.
The Commission's greatest success:
This area represents the Law Commission's most successful work. Since 1965, 19 Statute Law (Repeals) Bills have been enacted, which collectively have repealed more than 3,000 old Acts. This has significantly simplified the statute book and made it easier to identify which laws are actually in force.
Advantages of reform through the Law Commission
It saves Parliament's time
One of the most significant benefits of having a dedicated Law Commission is that it frees Parliament to focus on its primary political functions. Reviewing and reforming law is an extremely time-consuming process that requires:
- Detailed research into current legal provisions
- Consultation with experts and stakeholders
- Drafting of complex legal documents
- Consideration of how changes will interact with existing law
By delegating this work to a specialist body, MPs and peers can concentrate on debating and passing legislation rather than conducting the preliminary research and drafting work.
The evidence of this benefit is clear: over 3,000 Acts have been examined, found to be redundant, and repealed through the Commission's work – a task Parliament would never have had time to complete on its own.
Objective legal expertise
The Law Commission is staffed by experienced legal professionals who can approach law reform without political bias. As an independent statutory body, it can:
- Take an objective view of what reforms are needed, based on legal principles rather than political popularity
- Draw on specialist expertise across different areas of law
- Plan comprehensive reforms that consolidate and modernize the law
- Make the law more accessible to all citizens through clearer drafting and better organization
This objective, expert-led approach contrasts with Parliamentary reform, which can be influenced by political pressures, short-term thinking, or the need to respond quickly to public opinion.
Thorough consultation process
The Commission's consultation process ensures that reforms are based on wide-ranging input from:
- Legal practitioners who work with the law daily
- Academics who study legal principles
- Interest groups affected by the law
- Members of the public
This thorough approach helps ensure that reforms are practical, fair, and take account of different perspectives.
Disadvantages of reform through the Law Commission
Despite its many strengths, the Law Commission faces significant limitations:
Parliament is not obliged to implement recommendations
The most serious limitation is that Parliament is under no legal obligation to act on the Law Commission's recommendations. The Commission can spend years researching an area of law, consulting with experts, and drafting a Bill, only for Parliament to ignore its work entirely.
Critical Limitation: Parliamentary Discretion
Even the most carefully prepared and well-reasoned Law Commission reports may have no practical effect if Parliament chooses not to act. This significantly reduces the Commission's effectiveness and means that much of its excellent work has no practical impact on the law.
Example of Ignored Recommendations: Non-Fatal Offences
The Law Commission has produced numerous reports suggesting reform of non-fatal offences against the person. Despite the acknowledged problems with this area of law (which dates back to the Offences Against the Person Act 1861), Parliament has consistently ignored these recommendations. The law remains outdated and problematic, demonstrating the fundamental limitation of the Commission's advisory role.
Remember!
Key Points About the Law Commission:
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The Law Commission was established by the Law Commissions Act 1965 as an independent statutory body to keep the law under review and recommend reforms
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The Commission consists of a High Court Judge as Chair, four Law Commissioners, and support staff, and aims to make the law fair, modern, simple, and cost-effective
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The Commission performs four main tasks: reform (updating law), codification (creating complete codes), consolidation (bringing laws together), and repeal (identifying obsolete laws)
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Its greatest success has been in repeal work, with 19 Bills enacted since 1965 that have repealed over 3,000 obsolete Acts
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The main disadvantage is that Parliament is not obliged to implement the Commission's recommendations, meaning many excellent reports are ignored, such as repeated recommendations to reform non-fatal offences