The Work of the British Law Commissions: Law Reform... Now?

by Shona Wilson Stark

Overview

The Law Commission (of England and Wales) and the Scottish Law Commission were both established in 1965 to promote the reform of the laws of their respective jurisdictions. Since then, they have each produced hundreds of reports across many areas of law. They are independent of government yet rely on governmental funding and governmental approval of their proposed projects. They also rely on both government and Parliament (and, occasionally, the courts or other bodies) to implement their proposals. This book examines the tension between independence and implementation and recommends how a balance can best be struck. It proposes how the Commissions should choose their projects given that their duties outweigh their resources, and how we should assess the success, or otherwise, of their output. Countries around the world have created law reform bodies in the Commissions' image. They may wish to reflect on the GB Commissions' responses to the changes and challenges they have faced to reappraise their own law reform machinery. Equally, the GB Commissions may seek inspiration from other commissions' experiences. The world the GB Commissions inhabit now is very different from when they were established. They have evolved to remain relevant in the face of devolution, the UK's changing relationship with the European Union, increasing pressure for accountability and decreasing funding. Further changes to secure the future of independent law reform are advanced in this book.

Product Details

ISBN-13:	9781509934645
Publisher:	Bloomsbury Academic
Publication date:	11/28/2019
Pages:	320
Product dimensions:	6.14(w) x 9.21(h) x 0.66(d)

About the Author

Shona Wilson Stark is Affiliated Lecturer in the Faculty of Law at the University of Cambridge, and Fellow and College Lecturer in Law at Christ's College, Cambridge.

Table of Contents

Acknowledgements v

Table of Cases xi

Table of Legislation xiii

Table of GB Commission Material xvii

1 Introduction 1

I Lifting the Law Reform Bonnet 3

II Beyond Great Britain 6

III Overview 7

IV Some Final Preliminaries 11

2 The Origins of the Law Commissions 13

I Pre-1965 13

A Previous Law Reform Bodies 13

i England 13

ii Scotland 15

B Law Reform Now 16

II How Soon is 'Now': Why 1965? 18

A Social Reasons 19

B Legal Reasons 21

C Political Reasons 23

III Pressures for a Scottish Law Commission 25

A 'English Circumstances and English Pressures' 25

B Thomas Broun Smith 26

C The Secretary of State for Scotland and the Lord Advocate 29

IV The Law Commissions Act 1965 33

A The Compromise 34

B Passage Through Parliament 36

C The Enactment of the Commissions' Six Duties 40

i To Propose Areas of Examination and to Suggest How Those Areas Should be Reformed 41

ii To Consolidate, Repeal and Generally 'Tidy Up' Existing Law 43

iii To Strive for the Codification of the Law 43

iv To Report to the Ministers 44

v To Receive References from Government and Proposals from Other Bodies or Persons 45

vi To Act in Consultation with Each Other 46

D Composition of the Commissions 47

V Consequent Issues 50

3 The Scope of Commission Activity 53

I The 1965 Act and Discretion 54

II The Need to Control and Facilitate the Exercise of Discretion 56

A Confining Discretion 58

B Structuring Discretion 58

C Checking Discretion 59

III Previous Deficiencies in the Control and Facilitation of the Commissions' Exercise of Discretion 60

IV The Project-Selection Criteria 62

A The Introduction of the Criteria 62

B The LCEW's Use and Development of the Criteria 64

C The SLC's Use and Development of the Criteria 66

V Developing and Strengthening the Criteria 67

A The Content of the Criteria 68

i Availability and Economical Use of Resources 68

ii Suitability of Subject Matter 71

iii Importance of Subject Matter 81

iv Summary: Improved Sub-Criteria 83

B The Use of the Criteria and Transparency 83

i When and by Whom the Criteria Should be Used 83

ii How the Criteria Should be Used and their Weighting 86

iii The Legislative Enactment of the Criteria 89

VI Conclusion: Clarifying and Securing the Scope of Commission Activity 92

4 The Extent of Implementation 93

I Preliminary Issues 94

A The Meaning of 'Implementation' 94

B Focus on Substantive Reform 100

C The Manner of Non-Implementation 100

II Reasons for Non-Implementation 101

A Disagreement 102

B Governmental and Parliamentary Lack of Interest in Law Reform 104

C Lack of Leadership in Parliament 109

D LCEW: Institutional Bias 112

i Government Departments 112

ii Lord Chancellor 113

E LCEW: Changes to the Role of Lord Chancellor 114

F SLC: After Devolution 115

III The Importance of Being Implemented 118

A The Commissions' 'Only raison d'etre'? 118

B 'Never Work Wasted' 120

i Use and Implementation by the Courts 121

ii Pushing the Boundaries of Legal Thinking 126

C Assessing Output as a Whole 126

IV Attempts to Improve Implementation 128

A Attempts Affecting Both Commissions 128

i Second Reading Committee 128

ii Jellicoe Report 128

iii Legislative Reform Orders 129

iv House of Lords Procedure 130

B Attempts Affecting the LCEW 132

i Ministerial Committee 132

ii Quinquennial Reviews 133

iii 2004 Protocol 134

iv Law Commission Act 2009 and the Protocol 134

C Attempts Affecting the SLC 144

i Scottish Ministers' Undertaking 144

ii New Parliamentary Procedure 146

V Conclusion: Quality Over Quantity 148

5 The Codification Task 153

I Definition of Codification 154

A Two Traditional Definitions 154

B The Commissions' Definitions 155

C The Codification Spectrum 157

II Reasons for Tasking the Commissions with Codification 159

A Dissatisfaction with the Common Law and Legislation 160

B Desire for Simultaneous Reform and Codification 163

C Joining the European Union (EU) 164

III Pre-Existing Obstacles to Codification 166

A The Commissions' Resources 166

B Parliamentary Problems 167

C Common Law Tradition 169

IV Developments Reducing the Need for Codification 173

A The Practice Statement 173

i The Making of the Practice Statement 173

ii Use and Effect of the Practice Statement 175

iii Interpretation of Statutes 177

B Other Judicial Changes 178

i Judgments 178

ii Reforming Judges 180

iii Diversification of the Judiciary and Judicial Training 182

iv The Supreme Court 184

C European Dimensions 185

i European Union 185

ii European Convention on Human Rights 185

V The Commissions' Codification Track Records 187

A LCEW 188

B SLC 193

VI Conclusion: Substance Over Style 199

6 From Harmonisation to Devolution and Brexit 203

I Collaborative Projects 204

A The Commissions' Statutory Duty to Consult Each Other 204

B Practical Difficulties 206

i The Difference in the Commissions' Sizes 206

ii The Northern Ireland Law Commission 210

C Varying Degrees of Harmonisation 211

D The Way Ahead 212

II Individual Projects 215

A European Pressure and Scottish Concerns 215

B Intentional and Incidental Harmonisation 218

i The SLC's Use of English Law 219

ii The LCEW's Use of Scots Law 224

iii The Harmonisation Track Record Across Different Areas of Law 225

C The Overall Goal of Improvement 228

III Devolution 229

A Scotland 229

B Wales 231

C Northern Ireland 236

IV Conclusion: Separate Commissions Working in Sync 238

7 Law Reform… Now? 241

I Servicing our Law Reform Machinery 241

II Proposed Amendments to the 1965 Act 244

III Final Remarks for Great Britain and Beyond 247

Appendix 1 GB Chairmen and Commissioners 1965-2016 255

Appendix 2 Law Commissions Act 1965 with Proposed Amendments 259

Bibliography 269

Index 281

Editorial Reviews

"...it is certainly a work which adds to the sum of knowledge in this important field. It should find a place on the shelves of academics who research the British legal system and share that learning with their students." --The Theory and Practice of Legislation

"Bringing together significant information about the nature and development of the Law Commissions, including insightful anecdotage from previous Chairs and members, this book cannot avoid being a useful contribution to the literature on law reform ... a book that brings together some significant and helpful discussion of the role of the Law Commissions and will be a helpful research tool in that context." --Statute Law Review

"[A] well-researched, clear and extended analysis of the work of the Commissions." --Oxford Journal of Legal Studies

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