Of Law Commissioning
| Published date | 01 May 2013 |
| Pages | 119-151 |
| DOI | 10.3366/elr.2013.0152 |
| Date | 01 May 2013 |
Many factors shape legal history, among them, in recent decades, law reform commissions. Such commissions have attracted some literature,
Two books merit particular mention. R T Oerton,
Hereafter referred to as the “SLC”.
Playing a part in making legal history is fun. All the serving or former commissioners that I know on either side of the border have told me that they found the work fascinating and rewarding, and that was likewise my own experience. One has the privilege not only of enjoyable work, but also of learning about law in a new way. Long have I have bored anyone polite enough to listen with a little adage of my own making, which is that there are three ways to learn law, namely studying it, practising it and teaching it, and that each offers something that the others do not, but now I would add a fourth: one can learn about law by seeking to reform it. I do not mean simply learning new facts about law, though one certainly learns new facts. I mean new understandings about the nature of law, the way it works.
What is a law reform commission? In most jurisdictions there are commissions that are set up for particular purposes, such as the drafting or redrafting of a civil code, or of a new insolvency law, and so on. They are single-purpose and time-limited. In the UK too there have been countless such commissions, committees, working parties and so on and they continue to be set up, live their lives and die. I have sat on some myself. What distinguishes a law reform commission is that it is not single-purpose but multi-purpose, and not time-limited but open-ended, at least in intention.
It is often supposed that the London and Edinburgh commissions were the beginning of the idea of law reform commissions. Indeed the Law Commissions Act 1965 began a trend, being copied in many countries, and neither
Gerald Gardiner and Andrew Martin (eds),
Cmnd 2573: 1965.
Of course, something depends on what counts as a “law reform commission”. Some of the bodies about to be mentioned are in many ways unlike the SLC. One precedent that cannot be discussed here is the International Law Commission established by the UN in 1948.
And the Ontario Law Commission (formerly the Ontario Law Reform Commission) established in 1964, but (in the Canadian tradition) abolished in 1996. There is now a non-governmental successor, the Ontario Law Commission.
There were also UK precedents. The Law Revision Committee was set up in 1934 and existed until the war. In 1952 a similar committee was set up, the Law Reform Committee.
The pre-war committee “was not revived because… no one wanted to tell its distinguished but elderly members that they should be replaced”: P Gibson, “Law reform now: the Law Commission 25 years on” (Denning Lecture, 1991) at 27, available at
See H L MacQueen, “Legal nationalism: the case of Lord Cooper”, in N M Dawson (ed),
I have not discovered the date of death. In 1986 Hurlburt noted that “it continues to function”:
H R M Macdonald, J C Mullin, T B Smith and J F Wallace, “Law reform”, in
Criminal Law Revision Committee,
The immediate trigger for the UK law commissions was
See n 4 above. It was the second in a trilogy. The first and third – more or less forgotten today – were G Williams (ed),
Leaving out of account Northern Ireland (for which see n 19 below).
A few words about Northern Ireland – a subject meriting more than a few words. The 1965 Act gave to the London commission power to review the law of Northern Ireland, except “any law of Northern Ireland which the Parliament of Northern Ireland has power to amend” (s 1(5)). The word “amend” suggests only statutory law. If that is right then the London commission's purview extended to all Northern Ireland common law plus all reserved areas of Northern Ireland statutory law. But that seems absurd. It seems more likely that the intention was that the London commission's purview should cover all reserved, but no devolved, areas. The London commission has in fact tended to keep off Ireland's green lawns, whether reserved or devolved. The Northern Ireland Parliament could have set up its own commission in Belfast but did not do so. Section 50 of the Justice (Northern Ireland) Act 2002 (a Westminster statute) established a commission in Belfast, though the doors did not open until 2007. (It may be added that its funding is exiguous.) At the same time sch 12 para 8 and sch 13 para 1 of the 2002 Act took Northern Ireland outwith the purview of the London commission.
The Queen's Speech on 3 November 1964 announced: “My Government will propose the appointment of Law Commissioners to advance reform of the law”.
HL Deb 3 Nov 1964 cols 9–13.
The wording is non-committal. Ten days later there was a meeting ofTo continue reading
Request your trial