Section 1(1) of the Law Commissions Act 1965 provides that the purpose of the Law Commission is to promote the reform of the law of England and Wales. The 1965 Act also established the Scottish Law Commission, but the Northern Ireland Law Commission was not set up until 2007. Although the three law commissions have their own territorial spheres of influence, they can work together on projects that concern the UK. One example of this is the Joint Report on the Regulation of Healthcare Professionals that was submitted in March 2014 (Law Com No 345/Scot Law Com No 237/NILC 18 (2014)).
Law reform duties
The work of the Law Commission divides broadly into two parts. The first part involves the Commission undertaking particular law reform projects at the request of the Government. The second part involves the submission, from time to time, of programmes of reform to the Lord Chancellor. This means that about every three years the Commission embarks upon a new programme of law reform, which begins with a consultation exercise. During the consultation window anyone can write to the Commission with their ideas for reform. Once the window has closed, the Commission sifts the suggestions until only the most promising remain. These are then included in a reform programme that is sent to the Lord Chancellor for his approval. The current reform programme was submitted on 22 July 2014 and is the Commission’s twelfth to date (Law Com No 354). The consultation exercise for the Twelfth Programme resulted in the Commission receiving over 250 proposals from 180 consultees.
Once the Law Commission takes on a proposal for law reform, it has a number of options at its disposal. If the scale of the problem under consideration is unknown, the Commission can issue a scoping paper to seek views from consultees about the type of reform that is needed. One recent example of a scoping exercise concerns the reform of firearms legislation. Alternatively, if the scale of the problem is known the Commission can issue a consultation paper that sets out in detail the existing law and its defects, giving the arguments for and against the possible solutions and inviting comments. Once responses have been received to the scoping paper/consultation paper, the Commission will submit a final report to the Lord Chancellor and the relevant Secretary of State containing the Commission’s recommendations. Where necessary, the Commission will include a draft Bill as well. The scoping papers, consultation papers and final reports offer an incredibly valuable resource for anyone interested in the area of the law under consideration. Copies are available either on the Law Commission website or on the BAILII portal. It is estimated that around 70% of the recommendations put forward by the Law Commission become law.
Codification and simplification: a short history
Section 3(5) of the 1965 Act sets out the duty of the Law Commission “to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law”. The wording of the subsection makes it clear that the codification of the law is a particular duty that Parliament has imposed on the Commission. Gerald Gardiner QC (one of the founding fathers of the Law Commission and later the Lord Chancellor), in the opening chapter of Law Reform Now (1963), stressed the “extremely strong case” for codification across all areas of English law. So far as codification of the criminal law is concerned, in 1967, the Home Secretary, Roy Jenkins, endorsed the views of Gardiner at a Labour Party Conference in Plymouth and said: “The time has now come to have a complete Criminal Code. Arguments in its favour are no less compelling to-day than they were when the suggestion was first proposed.”
One of the very first proposals to codify the criminal law of England and Wales came from the Criminal Law Commissioners who looked into the issue between 1833 and 1849. Judicial hostility towards the proposals was sufficient to bury them. Fresh from his codifying exploits in India, Sir James Fitzjames Stephen produced a draft Code of Criminal Law and Procedure in 1878 and introduced it into Parliament. After the second reading it was withdrawn. A Royal Commission, which included Sir James himself, then considered his draft Code and issued its own draft Code in 1879. This too stagnated and was abandoned when Parliament was dissolved. Thereafter the issue of criminal codification floated in limbo until the Law Commission embraced it in its Second Programme of law reform in 1968. With the assistance of a Working Party, the Commission began the task of drafting reports on a number of areas of substantive criminal law, evidence and procedure. By the late 1970s, however, the Commission had come to realise that its limited resources were a serious impediment to the fulfillment of that aspect of its statutory duty. With considerable reluctance, the Commission set its plans for codification to one side in order to focus on other areas. In 1980, the Criminal Law Sub-Committee of the Society of Public Teachers of Law proposed that a team drawn from its members should reinvigorate the debate about the need for criminal codification and pass its conclusions on to the Commission. The Commission was receptive to the idea. The head of the new Criminal Code team was Professor J C Smith QC. Their report –Codification of the Criminal Law (Law Com No 143) – was submitted to the Law Commission in November 1984. The Commission absorbed the team’s recommendations and, in 1989, published its response in two volumes entitled A Criminal Code for England and Wales (Law Com No 177). The Commission unhesitatingly recommended that there should be a Criminal Code for England and Wales and so included with its report a Draft Code Bill. It became apparent, however, that there was no prospect of sufficient Parliamentary time being set aside to consider such a large measure and so the Commission decided not to press on with the Code, but rather to review discrete topics of the criminal law instead. The Commission hoped that if its resulting recommendations were accepted by Parliament the piecemeal legislation could eventually be bolted together to create a Code.
By the time of submitting its Tenth Programme in June 2008, the Law Commission had come to reappraise its overall codification project. Its belief in the desirability of codification was undimmed but after 42 years of seeking to codify the criminal law, the Commission felt that a change of emphasis was needed “to make codification more achievable”. The Commission decided that its main priority should be to “reform an area of the law sufficiently to enable it to return and codify the law at a subsequent stage”. This meant that for the first time, mention of a codification project in relation to criminal law was removed from the Commission’s programme of reform to be replaced by a new item “which seeks to undertake projects to simplify the criminal law… as a necessary precursor to any attempts to codify the criminal law.” The latest proposal in this vein is Simplification of Criminal Law: Kidnapping and Related Offences (Law Com No 355).
Where does this leave the Law Commission and its desire to codify the criminal law? The impetus to codify is still there but the historic stumbling block to codification was and remains Parliament. There does, however, appear to be a real political consensus behind the Commission’s current push to codify sentencing procedure, which bodes well both for the prospects of statutory enactment of the eventual recommendations and for the approval of any future codification programme. It is also worth pointing out that codification does not always require legislation. In the case of criminal procedure, the twinning in 2014 of the Criminal Procedure Rules and the Criminal Practice Direction has created “a single procedural code”, as Lord Thomas LCJ remarked at page 7 of the Lord Chief Justice’s Report 2014, all without the need for Parliamentary intervention. The answer to Lord Bingham’s question – “A Criminal Code: Must We Wait Forever?”, published in The Business of Judging (2011) – is now an optimistic “no”.
Reports that became law
- Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com 245) and Evidence of Bad Character in Criminal Proceedings (Law Com) 273 were substantially enacted in Part 11 of the Criminal Justice Act 2003.
- Children: Their Non-Accidental Death or Serious Injury (Law Com 282) was substantially enacted in Part 1 of the Domestic Violence, Crime and Victims Act 2004.
- Fraud (Law Com 276) was substantially enacted in the Fraud Act 2006.
- Inchoate Liability for Assisting and Encouraging Crime (Law Com 300) was substantially enacted in Part 2 of the Serious Crime Act 2007.
- Partial Defences to Murder (Law Com 290) was substantially enacted in Chapter 1 of Part 2 of the Coroners and Justice Act 2009.
- Reforming Bribery (Law Com 313) was substantially enacted in the Bribery Act 2010.
- Contempt of Court (1): Juror Misconduct and Internet Publication (Law Com 340) is partially enacted in the Criminal Justice and Courts Act 2015.
Reports that did not become law
- Participating in Crime (Law Com 305). The law on complicity in criminal cases is a minefield that successive Governments have declined to cross. The call for reform has grown louder with the publication of two reports by the House of Commons Justice Select Committee, the second of which came in late 2014. The Government has indicated that the question of whether the Law Commission should be invited to look again at this difficult area will have to be asked after the general election.
- Expert Evidence in Criminal Proceedings (Law Com 325). Although the Law Commission’s recommendations did not find their way onto the statute book they are now reflected in the Criminal Practice Direction 2014.
Contributor Paul Jarvis
Barrister at 6KBW College Hill