Taken as a whole, about two thirds of the Law Commission reports have been enacted. In 2004 7 reports had been enacted, 17 had been accepted and were waiting implementation and 13 were awaiting a decision. Mr Justice Carnwarth stated that these were areas in which the Government had asked the Law Commission to review thereby prompting speculation that the Law Commission that the Law Commission was not working very well independently. He also commented that although 70% of the Law Commission’s recommendations do eventually make it into legislation that “the timing has been unpredictable and the process haphazard”.
A major failure of the Law Commission, which was one of it aims when it was set up, was to codify all legislation so that it would be more accessible and understandable. The codification of criminal law has still not been achieved. Even thought the Draft Criminal Code was published in 1985, no parliamentary time was given to it. For example the Offence Against the Persons Act 1861 is used in 10,00 prosecution cases yet lawyers still argue over the interpretation. Nothing is done about it even though Labour did promise in it’s White Paper Justice for All, 2002 to introduce the Bill to Parliament. This could be due to the fact that there is little media coverage of the issue. Sir Henry Brooke is very critical of the Government’s role in responding to the recommendations of the Law Commission particularly criminal law and the OAPA, even 130 years after it has been passed.
Consolidation is also an issue where the Law Commission is concerned. The Law Commission produces about five consolidations Bills each year. A recent example is the Powers of the Criminal (Sentencing) Act, 200 which drew together from some 14 statutes dating from 1993 to 1999. This made the law much simpler so mistakes were less likely to happen. However, it was of little use as the law changed again in the Criminal Justice and Courts Act, 2000. Unfortunately, this happens a lot with consolidation acts.
There have been great successes in the work of the Law Commission such as the enactment of The Unfair Contract Terms Act 1977 and The Occupiers Liability Act 1984. Also, they have been successful in Statute Law Revision as its all it recommendations for repealing obsolete enactments are dealt with and over 2000 old Acts have been repealed in their entirety. However, there have been some significant failures in law reform due to their work. This is because of the failures in codification and consolidation.
There has also been the set up of Royal Commissions in addition to Law Commissions. The Government sets up Royal Commissions to work on specific areas of law which need reviewing. Royal Commissions are formed of experts in a specific area of law. After the work of a Royal Commission is completed, they disband and go back to their other work. Because those working in the Royal Commission only work part-time Some Royal Commissions have been highly effective such as The Philips Commission’s Report led to the Police and Criminal Evidence Act 1984 providing a codification of the law on police powers. Another example of Royal Commission’s doing good work is The Royal Commission on Criminal Justice which led to the Criminal Appeals Act 1995 and the Criminal Procedure and Investigation Act 1996, and its recommendation that a new body should be set up to review miscarriages of justice was implemented. The Criminal Cases Review Commission has been responsible for having many cases referred back to the Court of Appeal.
However, some of the Royal Commission’s have been largely ignored such as the Royal Commission on Civil Liability and Personal Injury (The Pearson Commission). Also, some of the issues brought into question by Royal Commission’s are completely ignored, such as the recommendation to reform the law on jury secrecy so research could be done.
The Law Commission had an excellent start in their work, but have gradually become less valuable over the years; the fact that 70% of their work is eventually made into legislation does show that they are still effective in their work in law reforms. However, this may be more due to the fact that the topics they choose to review are less of a matter of public interest, and also the failures in codification and consolidation reflect badly upon them. Royal Commissions have proven not to be as effective in changing the law, but this might be more due to the fact that they do not choose the topics that they review and they do not carry as much weight with the Government as they can ignore a Royal Commission’s recommendations, which it seems is often the option that they go with. Overall, I think that little can be done about Royal Commissions as they have such limited powers. However, the Law Commission should apply more pressure to the Government to commit to carrying out its recommendations and taking their reviews further into consideration, otherwise their existence may become questioned.
