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You are here: BAILII >> Databases >> The Law Commission >> Law Commission's 39th Annual Report 2004/05 (Report) [2005] EWLC 294(8) (14 June 2005) URL: http://www.bailii.org/ew/other/EWLC/2005/294(8).html Cite as: [2005] EWLC 294(8)

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PART 8

STATUTE LAW

TEAM MEMBERS

Consolidation^[1]

The Chairman, Sir Edward Caldwell, Francis Coleman, Louise Davies, Jessica de Mountenay, and Chris Packer.

Statute Law Revision

The Chairman, John Saunders, Jonathan Teasdale, Claire Fox, and Sarah McCosker.

CONSOLIDATION

8.1      An important aspect of our work is the consolidation of statute law. Consolidation consists of drawing together different enactments on the same subject matter to form a rational structure and of making more intelligible the cumulative effect of different layers of amendment. Usually this is done by preparing a single statute. However, in the case of a large consolidation, it may be done by means of several statutes. The aim is to make the statutory law more comprehensible, both to those who have to operate it and to those who are affected by it.

8.2      Our programme of consolidation measures has over the years reduced in quantity, partly because of changes made in the 1970s to the way Parliament amends legislation. This is now routinely done by textual amendment. With modern electronic sources of legislation and existing reference material, anyone wishing to see the latest version of an Act can readily do so. The need to consolidate simply to take account of textual change has largely gone.

8.3      But there is still a need for consolidation, particularly in those areas where there has been a considerable amount of legislative activity. Now, when the Commission comes to consolidate the legislation on a particular subject, it tends to find that the total amount of legislation to be consolidated is large.

8.4      Consolidations of this kind are by their nature difficult and call for a considerable amount of work. It is not just a matter of identifying the amendments that have been made to the enactments being consolidated. Changes elsewhere in the statute book, in European law, or resulting from decisions by the courts may need to be reflected in the consolidated text. Provisions that have become obsolete need to be identified and included in the provisions to be repealed by the consolidation. The effect of devolution needs to be worked out. In some cases the law needs to be altered before a sensible consolidation can be produced. This work has to be done with meticulous accuracy so as to avoid inadvertent changes in the substance of the law. It places a serious strain on resources — both within the Law Commission and in the responsible Department. Departments are never short of pressing priorities to which they need to devote scarce resources.

8.5      Finally, the rate at which the statute book grows is a problem in itself. Parliament enacts several thousand pages of new primary law every year and repeals relatively little. Consolidation cannot be undertaken unless the law remains relatively settled. Several times over the past decade, legislation has been changed radically, just when a consolidation was being prepared. This has inevitably stopped the consolidation. Our attempted consolidation of the legislation on financial services is a good example of the problem. Although well-advanced, the consolidation had to be abandoned when the Government introduced the totally new regulatory regime established by the Financial Services and Markets Act 2000. The work on the consolidation was totally wasted.

8.6      During the year, in the absence of a consolidation bill before Parliament, we have been looking to establish a consolidation programme that will run over the next few years.

8.7      Our consolidation of the legislation on wireless telegraphy and the management of the radio spectrum was delayed for some time by the work involved in implementing the new regulatory regime created by the Communications Act 2003. But the consolidation is now well on the way to completion. On 4 August 2004 the Department of Trade and Industry published a consultation paper with a copy of the Consolidation Bill annexed. The period allowed for consultation ended on 28 October 2004. When the results have been assessed and any necessary adjustments made to the Bill it will be ready for introduction in Parliament.

8.8      A small consolidation of nineteenth century legislation about parliamentary costs is nearly finished. There is a considerable amount of old legislation in the statute book which is still live and so cannot be removed by a Statute Law (Repeals) Bill but which would benefit from being modernised.

8.9      Work on consolidating the legislation about the National Health Service is progressing well. Because of the amount of legislative activity in this area since 1997, the consolidation is difficult and the Bill will inevitably be long. The legislation about the National Health Service has been significantly affected by devolution to the National Assembly for Wales, which is a further complicating factor.

8.10      Work is about to start on consolidating the legislation about private pensions. The Department for Work and Pensions has made funds available to enable the Commission to employ a freelance drafter (an experienced drafter who used to be in the Office of the Parliamentary Counsel) to undertake the consolidation. This large and extremely difficult project will take some time to complete.

8.11      The only disappointment in the year is the consolidation of the legislation about representation of the people which, although well advanced, remains suspended. Delays were caused on more than one occasion by a reorganisation of Ministerial responsibility for the subject. Work on the consolidation was finally suspended at the request of the Department for Constitutional Affairs pending the Government's decision on the Electoral Commission's report Voting for Change, which recommended significant changes to the law. A decision on when the consolidation can safely be revived has yet to be taken.

STATUTE LAW REVISION

8.12      Statute law revision is the process of removing legislation from the statute book if it is obsolete or if it otherwise has no further practical utility. The work helps to modernise the statute book, leaving it clearer and shorter, and is an integral part of the general process of statute law reform. The vehicle for repealing legislation is the Statute Law (Repeals) Bill. The Law Commission has drafted 17 such Bills since 1965. All have been enacted and have repealed more than 2000 Acts in their entirety and have achieved the partial repeal of thousands of other Acts.

8.13      The most recent Bill, annexed to the Seventeenth Report on Statute Law Revision^[2], received Royal Assent on 22 July 2004^[3]. This resulted in the repeal of 68 whole Acts and the removal of redundant provisions from over 400 other Acts.

8.14      The work of the statute law revision team during 2004 has concentrated on the criminal law. This has been a large project with the team examining enactments dating back many centuries. For example, the project has uncovered several Acts from the reign of Edward III which were intended to protect the citizen from abuses of the judicial powers of the King's Council in determining criminal proceedings. These Acts have been superseded by the Human Rights Act 1998 and are therefore now unnecessary. Other Acts being considered for repeal include the Sale of Offices Act 1551, the Disorderly Houses Act 1751 and the Servants' Characters Act 1792.

8.15      Consultation on these repeal proposals started in early 2005. Other repeal projects in 2005 are likely to include town and country planning, the police and the armed forces.

8.16      In all statute law revision work the team produces a consultation document inviting comments on a selection of repeal proposals in each area. These documents are then circulated to Departments and other interested bodies and individuals. Subject to the response of consultees, repeal proposals relating to all the projects mentioned above will be included in the next Statute Law Revision report which is planned for 2008.

8.17      Much of the Law Commission's work on statute law revision is conducted jointly with the Scottish Law Commission and many of the repeal candidates contained in Statute Law Revision Reports extend to Scotland. Indeed because Statute Law (Repeals) Acts extend throughout the United Kingdom and the Isle of Man, the Law Commission liaises regularly on its repeal proposals not only with the Scottish Law Commission but also with the authorities in Wales (the Office of the Secretary of State for Wales and the Counsel General to the National Assembly for Wales) and with the authorities in Northern Ireland and in the Isle of Man. Their help and support in considering and responding to the repeal proposals is much appreciated.

Note 1    Including Parliamentary Counsel who were at the Commission for part of the period.    [Back]

Note 2    Joint Report with the Scottish Law Commission (2003), Law Com No 285, Scot Law Com No 193.    [Back]

Note 3    Statute Law (Repeals) Act 2004 (c14).    [Back]