Image shows the scales of justice

Table of contents

1. What is the Law Commission and what does it do?

The Law Commission is an independent body with a remit to keep the law of England and Wales under review and make systemic recommendations for consideration by Parliament.[1] It may also recommend changes to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and/or reduce the number of separate statutes.[2] A separate commission operates in Scotland: the Scottish Law Commission.[3] The Northern Ireland Law Commission has been “non-operational” since 2015 due to funding constraints.[4]

The commission in England and Wales was established by the Law Commissions Act 1965.[5] It is chaired by a judge of the High Court or Court of Appeal in England and Wales, appointed by the lord chancellor and secretary of state for justice for up to three years.[6] The current chair is Sir Peter Fraser, who was appointed Queen’s Counsel (QC) in 2009. He sits both as a judge of the Technology and Construction Court and the Commercial Court. The lord chancellor also appoints four commissioners, who are experienced judges, barristers, solicitors or teachers of law. They are appointed for up to five years, although their terms may be extended.[7]

The commission regularly consults on new projects to form part of future programmes of law reform, including with stakeholders such as judges, lawyers, government departments, the voluntary and business sectors, and the general public.[8] Proposals are then submitted to the lord chancellor for approval. Government departments may also refer projects to the commission directly.

The commission has produced more than 350 sets of law reform recommendations since its creation.[9] The commission has observed that, historically, around two-thirds of its recommendations for reform have been implemented.

The commission launched a consultation on its next programme of law reform in March 2021.[10] It received around 500 responses to this consultation, covering nearly 200 possibilities for law reform.[11] Although the commission has since extended the timetable for finalising this next programme, it has taken forward some of the proposals from the exercise as ‘ministerial references’. This included a review of the Arbitration Act 1996, which respondents to the consultation supported in 2021. This review led to the Arbitration Bill [HL], currently before the House of Lords.[12]

As with the Arbitration Bill [HL], the commission may propose draft bills for the government to introduce in Parliament or make recommendations which find their way into other government bills. As well as seeking changes to codify the law in particular areas, however, Law Commission bills may also take the form of either statute law (repeals) bills or consolidation bills. In its most recent annual report, the commission explained the importance of each of these bill types as manifestations of two important Law Commission functions:[13]

  • Removing legislation that is obsolete or which has lost any modern purpose. The legislation appears to be still in force, but this is misleading because it no longer has a job to do. This may be because the political, social or economic issue an act was intended to address no longer exists or because an act was intended to do a specific thing which, once done, means it has served its purpose.
  • Replacing existing statutory provisions, which are spread across multiple acts, may have been drafted decades ago and have been amended multiple times, with a single act or series of related acts, drafted according to modern practice. This process of ‘consolidation’ does not alter the effect of the law, but simply updates and modernises it.

Regarding the commission’s statute repeals work, 19 statute law (repeals) acts have passed to date, between them repealing over 3,000 acts in their entirety and partially repealing thousands of others. The commission also made further repeal proposals in a statute law (repeals) report in 2015.[14] This recommended the repeal of more than 200 acts, together with a draft bill to implement the proposals.[15] The earliest repeal proposal was from the Statute of Marlborough 1267. Passed during the reign of Henry III, the statute is one of the oldest surviving pieces of legislation. The most recent proposal was the part repeal of the Consumers, Estate Agents and Redress Act 2007. The draft bill awaits its introduction in Parliament.

On its consolidation work, the commission has noted it was responsible for 220 consolidation acts between 1965 and 2006.[16] Since then it has had three further proposals passed by Parliament: the Charities Act 2011, the Co-operative and Community Benefit Societies Act 2014 and the Sentencing Act 2020.

2. How does the House of Lords consider Law Commission bills?

Law Commission bills are invariably introduced in the House of Lords. In October 2010, the House agreed to a House of Lords Procedure Committee proposal to make procedures used on a two-year trial basis for certain non-controversial Law Commission bills permanent.[17] Explaining the changes at the time, Lord Brabazon of Tara, the then chairman of committees, explained:

My Lords, a couple of years ago, in April 2008, the House agreed to new procedures for consideration of certain non-controversial Law Commission bills on a trial basis. They involve holding the second reading debate in the Moses Room, with a motion for second reading subsequently being taken formally in the chamber. The committee stage is then generally conducted by means of a special public bill committee, and then report and third reading take place in the chamber, as with other bills.[18]

These procedures have been followed for the Arbitration Bill [HL]. Consolidation bills are subject to additional scrutiny by the Joint Committee on Consolidation etc Bills.[19]

3. Read more

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References

  1. Law Commission, ‘Homepage’; and ‘About us’, accessed 18 January 2024. Return to text
  2. Law Commission, ‘Statute law repeals’; and ‘Consolidation’, accessed 18 January 2024. Return to text
  3. Scottish Law Commission, ‘Welcome to the Scottish Law Commission’, accessed 18 January 2024. Return to text
  4. Northern Ireland Law Commission, ‘Welcome to the Northern Ireland Law Commission website’, accessed 18 January 2024. Return to text
  5. Law Commission, ‘Homepage’, accessed 18 January 2024. Return to text
  6. Law Commission, ‘Who we are’, accessed 18 January 2024. Return to text
  7. As above; and ‘Law commissioners’, accessed 18 January 2024. Return to text
  8. Law Commission, ‘How we work’, accessed 18 January 2024. Return to text
  9. Law Commission, ‘Government publishes Law Commission implementation report’, 4 August 2023. Return to text
  10. Law Commission, ‘Generating ideas for the Law Commission’s 14th programme of law reform’, March 2021. Return to text
  11. Law Commission, ‘An update on the 14th programme of law reform’, 16 February 2023. Return to text
  12. Law Commission, ‘Review of the Arbitration Act 1996’, accessed 18 January 2024; and UK Parliament, ‘Arbitration Bill [HL]’, accessed 18 January 2024. Return to text
  13. Law Commission, ‘Annual report 2022–23’, 18 December 2023, HC 301 of session 2023–24, p 68. Return to text
  14. As above. Return to text
  15. As above, p 51. Return to text
  16. As above, p 69. Return to text
  17. HL Hansard, 7 October 2010, col 224; House of Lords Procedure Committee, ‘2nd report of session 2010–11: Law Commission bills’, 27 July 2010, HL Paper 30 of session 2010–12; and ‘1st report of session 2007–08: Law Commission bills’, 25 February 2008, HL Paper 63 of session 2007–08. Return to text
  18. HL Hansard, 7 October 2010, col 224. See also: House of Lords, ‘Companion to the standing orders and guide to the proceedings of the House of Lords’, updated 28 November 2023, para 8.49. Return to text
  19. House of Lords, ‘Companion to the standing orders and guide to the proceedings of the House of Lords’, updated 28 November 2023, para 8.215; and UK Parliament, ‘Joint Committee on Consolidation etc Bills’, accessed 18 January 2024. Return to text