Law 2 7 NOV 2074 ft The Rt. Hon. Sir David Lloy '` otithi C4 OrnIniSSkin Chairman Law Commission Reforming the law sI 1 Floor, Tower, Post Point 1.50, 62 Queen Anne's Gate, London. SW1H 9AG (access via 102 Petty France) t 020 3334 5270 f 020 3334 4198 e [email protected] Hon. Kate Doust MLC Chair, Standing Committee on Uniform Legislation and Statutes Review, Parliament House, Perth, Western Australia. 6000 27 November, 2014 eak 4 ivis. 40ust, REVIEW OF THE STATUTE BOOK I enclose an account of our statute law repeal and consolidation work which has been produced by John Saunders, who leads our SLR team, and Adrian Hogarth who is our lead Parliamentary Counsel. I hope you find it of assistance. Please let me know if you have any further questions or if we can assist in any other way. 'MK tiatiataI ?tdi 4 I i 1 / %A • 1 f etviok 1 i 'IP # ' A www lawcom.gov.uk REVIEWING THE STATUTE BOOK THE ROLE OF THE LAW COMMISSION FOR ENGLAND AND WALES About the Law Commission 1. The Commission was established by the Law Commissions Act 1965 to promote the reform of the law of England and Wales. 2. In carrying out its statutory duties, the Commission operates independently of the Government of the day. It cannot be required to exercise its functions in any particular manner, nor can it be directed to make recommendations to suit political expediency. Nevertheless the Commission shares common purpose with the Government in a commitment to law that is simple, accessible and cost-effective. The Commission's statutory duty in relation to reviewing legislation 3. Under section 3(1) of the Law Commissions Act 1965 the Commission has a statutory duty to keep under review all the law of England and Wales with a view to its systematic development and reform including, inter alia, the repeal of obsolete and unnecessary enactments and the reduction of the number of separate enactments. The Commission has separate teams to handle the repeal of obsolete legislation and to carry out the consolidation of legislation. STATUTE LAW REPEALS 4. Within the Commission a dedicated team works on repeals of obsolete or otherwise unnecessary legislation - its work is known as "SLR" (Statute Law Repeals). Its purpose is to modernise and simplify the statute book, reduce its size and save the time of lawyers and others who use it. This in turn helps to avoid unnecessary legal and research costs. Methodology 5. SLR work at the Commission is carried out by a small specialist team, with assistance from colleagues from the Scottish Law Commission. The team reviews the 40,000 or so Acts of Parliament that remain in existence and 1 identifies candidates for repeal on the basis that they are no longer of practical utility. They also consider suggestions from others, including Government Departments, as to provisions that might be suitable for repeal. 6. The team works through the statute book, on a topic by topic basis (in other words, broad policy areas such as agriculture, education, employment, tax, transport, and so on) and carries out detailed analysis and research on each Act (or any part of it) that appears to serve no useful purpose. The topics chosen for consideration in this way form part of each programme of SLR work carried out by the Commission in advance of the next SLR Bill. Historically, each programme usually contains about a dozen topics. Working through the topics within each programme usually takes around three years although an individual project will typically take a few months to complete. 7. Before deciding which topics to review, the team invite Government Departments and other bodies to identify areas of the statute book or perhaps just individual Acts or parts of Acts that appear to be obsolete and in need of consideration for possible repeal. This supplements the team's ongoing review of the statute book for likely repeal candidates. 8. The team look particularly closely for legislation that appears to be time- limited in any way, whether this is because it contains sunset or other expiry provisions or whether the legislation is enacted to authorise a particular event or activity that will cease to be relevant after it has taken place. Although no central databases hold this information, the team's periodic reviews of the statute book regularly reveal legislation that has become obsolete for this reason. Focus on primary legislation 9. The Commission's SLR team concentrates its work on primary legislation — that is, Acts that have been considered and passed by Parliament. Primary legislation requires an _Act of Parliament to repeal it. Secondary legislation (such as regulations and orders) usually falls outside the work of the SLR 2 team. This is because secondary legislation does not require an Act of Parliament to repeal it. Indeed much secondary legislation lapses when its parent act is repealed. Moreover it can also usually be revoked using the same powers that created it. The importance of consultation 10. Thorough, focussed consultation on the legislation proposed for repeal is crucial. The purpose of consulting is to establish whether the provision proposed for repeal really is no longer of practical utility. In order to establish this, the team consults Departments, local government, representative bodies, individuals and anyone else who appears to have a relevant interest. Every consultation is published on the Commission's website for public comment. The length of the consultation period is appropriate to the complexity of the legislation. Typically the consultation on each topic takes about 3 months. 11. Once the consultation is complete, the Commission publishes a report recommending the repeal of every Act that it is able to confirm is obsolete. The report explains in some detail the reasons for this recommendation. Each report contains a draft Statute Law (Repeals) Bill to give effect to the repeal proposals. The reports are laid before Parliament as Command Papers. 12. The meat of an SLR Bill is always the long Repeals Schedule annexed to the Bill. The introductory clauses and any transitional or consequential provisions seldom occupy more than a couple of pages. The Bill is drafted by the SLR team, but the team is able to consult Parliamentary Counsel at the Commission on any difficult drafting points (such as transitional or consequential issues that sometimes need to be addressed before it is safe to repeal a provision). 3 The Commission has the trust of Parliament 13. The independence of the Commission in the performance of its statutory functions means that Parliament, when considering the Commission's SLR Bills, knows that the repeal proposals are legally sound and have not been influenced in any way by the vagaries of political consideration or expediency. The Commission has no axe to grind in proposing reform. This trust has been built up over 50 years, resulting in the passage of each of the Commission's 19 SLR Bills. The Commission's fast track parliamentary procedure for SLR Bills 14. SLR Bills enjoy a fast-track route into and through Parliament. The practical advantage is that these Bills do not have to compete with other Government Bills for parliamentary time. It is possible for Parliament to amend an SLR Bill (whether to drop a repeal or to make a correction to the drafting), but that happens only rarely. 15. The Ministry of Justice has responsibility for SLR Bills in both Houses. They are usually introduced into the House of Lords within a matter of months, sometimes weeks, of their being produced by the Commission. They follow the same Parliamentary procedure as consolidation Bills. Accordingly, after the Second Reading stage in the House of Lords, SLR Bills are considered by the Joint Committee on Consolidation Bills, a Committee appointed by both Houses to consider consolidation Bills and SLR Bills. The Committee considers each SLR Bill in detail and takes evidence from members of the Commission's SLR team. The Bill then returns to the House of Lords for the remaining stages. The House of Commons stages are usually taken together some weeks later. 16. The Commission's most recent SLR Bill was introduced in Parliament in October 2012 and received Royal Assent on 31 January 2013. The total amount of Parliamentary time taken up by the Bill was 74 minutes, of which 59 minutes were taken in the Joint Committee off the floor of Parliament. Only one minute of the House of Commons' time was taken. 4 Our Implementation Record 17. The Commission has a 100% success rate in the implementation of its SLR work. All 19 of its draft Bills produced since 1965 have been enacted, between them repealing more than 3000 whole Acts and part-repealing thousands of other Acts. The most recent Bill became the Statute Law (Repeals) Act 2013 which repealed more than 800 whole Acts including 31 Tax Acts and old pensions legislation. CONSOLIDATION OF STATUTES Nature of consolidation 18. A consolidation Bill draws together different enactments on the same subject to produce a single statutory text while preserving the effect of the current law. The single text usually replaces provisions in a number of different Acts or secondary legislation. Occasionally a Bill has consolidated the provisions of a single Act that has been heavily amended; but nowadays we would not normally contemplate doing that unless an "as amended" text of the original Act is not satisfactory. 19. Consolidation at the Commission is carried out under arrangements made by Parliamentary Counsel who work in-house at the Commission's offices. More than 220 consolidation Acts have been enacted since the Commission was established in 1965.