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 . 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 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 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. All consolidation Bills that have been introduced into Parliament since then have been enacted, usually without any, or any significant, amendments in Parliament.. Over the years a number of projects have been abandoned before being completed, for a variety of reasons. This is why it is important for the suitability of a proposed project to be considered carefully before it is begun (see paragraph 22 below).

20. In recent years the number of consolidation projects carried out has reduced, largely due to budgetary constraints applying to the Law Commission and the responsible Whitehall departments. But the

5 Commission still considers consolidation to be a useful tool in the right cases to improve the accessibility and operation of the statute book.

21. Consolidation makes statute law more accessible and comprehensible. This is not just because it brings together in one place a number of enactments that were previously scattered around the statute book. A good consolidation can also remove obsolete material, modernise language and resolve minor inconsistencies or ambiguities that can result both from successive enactments on the same subject and from more general changes in the law. It can also alter the structure of the legislation it replaces, which may have become unwieldy in the light of amendments made to the original Act.

Selection of suitable consolidation projects 22. The Commission always welcomes suggestions for future consolidation projects. Nevertheless it will undertake consolidation of an area of law only if the law concerned is suitable for and in need of consolidation. The process is labour intensive and so there needs to be a clear justification for carrying out a consolidation project. Moreover the law to be consolidated needs to remain reasonably stable over the expected life of the project. There are a number of other considerations that the Commission takes into account before undertaking a consolidation project. These include: • the size and complexity of the project — a large project could involve a significant commitment for a drafter over a period of years • the likely cost of the work involved — the policy Department concerned is usually expected to make a financial contribution to the Commission's costs in relation to the work of the drafter • the level of practical support available from that Department (who need to be in a position to answer the drafter's queries and comment on any issues of substance that the drafter has to resolve), and any likely changes in that support • the Commission's own drafting resources and any other drafting resources available to it (for example from the Office of the

6 Parliamentary Counsel or from retired or former parliamentary counsel willing to work on a freelance basis).

The drafting work involved can be demanding as the basic task is to produce a complete clean consolidated text (which often involves significant changes in the form and arrangement of the material as well as the removal of spent provisions) to supersede and repeal the previous legislation, but without changing its effect.

Changes to the substance of the law being consolidated 23. The parliamentary procedure for a consolidation Bill permits the inclusion of changes to the substance of the law (including changes of wording that carry a risk of changing the substantive effect) if recommended in a Report made by the Law Commission or the Scottish Law Commission (or both). The nature of the changes permitted is limited — essentially only changes that lead to a satisfactory consolidated text can be made. So in practice the changes will arise from the drafting process and will be initiated by the drafter and discussed in detail with the relevant Department, and then the Chairman of the relevant Law Commission, before being recommended by the Law Commission in a Report.

24. The Law Commission Report will usually be made around the time the Bill is due to be introduced in the House of Lords, and that Bill will include the changes being recommended. The Joint Committee that considers the Bill has to approve the recommendations The Committee does not see itself as a policy committee, so really significant policy changes, or policy changes wanted by the responsible department for their own reasons, are in principle not permissible.

25. Sometimes the legislation being consolidated is found to require more substantial amendment than the consolidation process permits. Or the department may wish to make various amendments before the consolidation Bill is enacted. In those circumstances there may be an

7 amending Bill (or occasionally an amending statutory instrument, if a suitable power exists) that takes effect before or at the same time as the consolidation Bill.- so that the Bill can include the effect of the relevant amendments. There have been a few examples of normal Bills containing a specific power to make "pre-consolidation amendments" by statutory instrument in order to facilitate a specific consolidation exercise.

26. In addition to the draft Bill the drafter also has to produce various documents necessary for the Parliamentary process. These always include (a) a table showing the origins of each provision of the consolidation Bill (the Table of Origins, known before about 2000 as the Table of Derivations), (b) a table showing what has happened to each provision repealed by the Bill (the Table of Destinations) and (c) a note to the Joint Committee explaining any points the drafter wishes to draw to their attention. That will usually consist of relevant background or explanation of decisions taken in the drafting process where the drafter has decided that a change in the form of the legislation does not change its effect.

Consultation 27. The drafter will prepare the Bill and other documents in consultation with the responsible department, and will explain points arising on successive drafts of the Bill that he or she thinks the department may wish to comment on. Occasionally the drafter requires factual information before considering how best to consolidate particular provisions and the Joint Committee considering the Bill expect to be given confirmation that the department do not object to any of the decisions made by the drafter or to any Law Commission recommendations.

28. The department may of course carry out its own consultations before commenting on a draft Bill or on a point raised by the drafter. And there may be stakeholders with particular expertise or responsibility in the particular area of law concerned who will be consulted on a draft Bill or point arising — for example a relevant academic author or expert practitioner.

8 29. It is now expected that a draft consolidation Bill will be published for more general consultation, before it is introduced. On our most recent project (the Co-operative and Community Benefit Societies Bill in 2013) that consultation was carried out by the Law Commission and Scottish Law Commission and included a draft Note to the Joint Committee, draft Law Commission recommendations and a draft Table of Origins. The exercise was based largely on material being posted on the Commissions' respective websites.

Implementation of consolidation projects 30. Much of what has been said above about the implementation of SLR projects applies equally to the implementation of consolidation projects. The Commission's consolidation Bills enjoy the same fast-track route into and through Parliament and are scrutinised by the same joint committee to guarantee their technical accuracy and the acceptability of any significant decisions taken by the drafter and and of any Law Commission recommendations. The scope of a consolidation Bill for purposes of debate and amendments is limited to those issues. Sometimes a Bill has to be amended in Parliament to reflect changes elsewhere (such as a new provision in another Bill or an order bringing provisions of an earlier Act into force). Occasionally, changes are made to correct a mistake or to reflect the views of the Joint Committee on a point, but that is relatively rare.

31. The existence of this procedure signifies the trust that Parliament has in the Law Commission and in its Parliamentary Counsel. It also ensures that consolidation Bills do not compete with other Bills for parliamentary time .This is essential because the work involved in a consolidation project (which can take two years or more for a larger Bill) would be completely wasted if the completed Bill is not introduced and enacted.

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