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You are here: BAILII >> Databases >> The Law Commission >> The Fortieth Annual Report of the Law Commission (Report) [2006] EWLC 299(8) (14 June 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/299(8).html Cite as: [2006] EWLC 299(8)

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PART 8

STATUTE LAW

TEAM MEMBERS
Consolidation
The Chairman
Sir Edward Caldwell
Francis Coleman
Louise Davies
Jessica de Mountenay
Chris Packer.
Statute Law Revision
The Chairman
John Saunders
Jonathan Teasdale
Ruth Wilkinson.
Post-Legislative Scrutiny
The Chairman
Lydia Clapinska.


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 the law of the European Union or resulting from decisions by the courts (including the European Court of Human Rights) may need to be reflected in the consolidated text.
8.5      Provisions that have become obsolete need to be identified and included in the provisions to be repealed by the consolidation. The effect of devolution and the impact of the Human Rights Act 1998 need 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.
8.6      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 wasted.
8.7      We have been continuing to look at establishing a consolidation programme that will run over the next few years.
8.8      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. On 4 August 2004 the Department of Trade and Industry published a consultation paper with a copy of the draft Consolidation Bill annexed.
8.9      As a result of the consultation, the provisions concerning appeals to the Competition Appeal Tribunal about wireless telegraphy decisions are not to be consolidated. The Bill was introduced in the House of Lords on 20 April 2006.
8.10      A small consolidation of nineteenth century legislation about parliamentary costs is nearly ready for introduction. The final text of the consolidation was published for consultation. The consultation period ended on 31 January 2006^[1]. 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. So, for example, further consolidations concerning game and the Ordinance Survey are under consideration.
8.11      Work on consolidating the legislation about the National Health Service has continued to progress well. Because of the amount of legislative activity in this area since 1997, the consolidation is difficult and the resulting legislation will inevitably be sizeable. 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. It is expected that the consolidating legislation will be introduced in the current Parliamentary session. There will be a separate Bill relating to the health service in Wales.
8.12      After the consolidation of the legislation concerning the national health service has passed, we aim also to consolidate the legislation relating to the Health Service Commissioner for England. Work on this consolidation has begun.
8.13      Work has started 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.
8.14      The consolidation of the legislation about representation of the people 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. The Government has now introduced a Bill (the Electoral Administration Bill) in response to that report, the Electoral Commission's report on the future of postal voting and its own consultation paper "Securing the Vote", published in the light of concerns raised in relation to allegations of electoral fraud in the 2005 General Election. No decision on when the consolidation may safely be revived has yet been taken.
8.15      This session's Charities Bill contains a power to make pre-consolidation amendments. The suggestion that there should be a consolidation of the enactments relating to charities has received widespread support in debates. The Commission is hoping to be able to embark on a consolidation in this area once the Charities Bill has been enacted.

STATUTE LAW REVISION

8.16      The principal purpose of statute law revision is the repeal of statutes that are obsolete or which otherwise no longer serve any useful purpose. It is to modernise the statute book and leave it clearer and shorter. This helps to save the time of lawyers and others who need to use it. The work is carried out by means of Statute Law (Repeals) Bills, which the Law Commissions publish periodically in draft in their Statute Law Revision reports. There have been 17 such Bills since 1965. All have been enacted, thereby repealing more than 2000 Acts in their entirety and achieving the partial repeal of thousands of other Acts.
8.17      During 2005 the Statute Law Revision team has concentrated on three main projects – the police, the armed forces and county gaols. The police repeals project included many 19^th century enactments that had been superseded by changes in policing law during the 20^th century, particularly in relation to police pensions. The armed forces project uncovered 30 obsolete enactments, many passed to provide pension benefits for retired service personnel and their dependants. Five of the Acts related to the Royal Naval School which was established in 1833 for the education of the children of officers in the Royal Navy and Marines. The school closed its doors in 1910. Finally, in the large county gaols project the team has reviewed nearly 50 statutes (dating back to 1700) covering the development and operation of gaols for criminal convicts, civil debtors and vagrants across 22 counties in England and Wales. Most of the institutions have long ceased to exist (some without physical trace), and all the statutes have been overtaken by more modern legislation governing today's Prison Service. London alone produced seven Acts, dating from 1766 to 1815.
8.18      Consultation on all these repeal proposals was carried out during 2005 or in early 2006. Other repeal projects in 2006 are likely to include turnpikes and taxes.
8.19      In each area of statute law revision work the team produces a consultation document inviting comments on a selection of repeal proposals. 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.

POST-LEGISLATIVE SCRUTINY

8.20      In July 2005, we started a new project to determine the need for post-legislative scrutiny, which concerns the review of Acts of Parliament once they have been brought into force. We are concerned both at the volume of legislation that is passed by Parliament and whether it delivers the underlying policy aims. We are also concerned if new law has unintended consequences which make the law less certain and more complex.
8.21      There is currently no systematic practice of reviewing laws after they have been brought into force to ensure that they are working as intended. There are many issues that arise when one considers post-legislative scrutiny. The key questions include the purpose of post-legislative scrutiny, which legislation should be subject to such scrutiny, what form the scrutiny should take and by whom should it be undertaken, and perhaps most importantly, who should be responsible for making decisions about all of these issues.
8.22      A consultation paper was published on 31 January 2006. In the consultation paper, we consider the potential for developing a more formal system of reviewing laws and encouraging better regulation.
8.23      We aim to publish our final report in the Summer of 2006.

Note 1   http://www.dca.gov.uk/consult/parliamentarycosts/cp3305.htm    [Back]