Statute law revision

Statute law revision may refer to the printing of, or the editorial process of preparing, a revised edition of the statutes, or to the process of repealing obsolete enactments to facilitate the preparation of such an edition, or to facilitate the consolidation of enactments.

United Kingdom

History

Early efforts

Revision of the statutes was regarded by the Parliament of England as desirable as early as 1563 (see the preamble to the act 5 Eliz. 1. c. 4). It was demanded by a petition of the Commons in 1610. Both Coke and Bacon were employed for some time on a commission for revision. ^[1]

Commission on Public Records

In the United Kingdom, acts of Parliament remain in force until expressly repealed. Blackstone's Commentaries on the Laws of England, published in the late 18th-century, raised questions about the system and structure of the common law and the poor drafting and disorder of the existing statute book. ^[2]

The Parliament of the United Kingdom, formed in 1800, following the Acts of Union 1800 devoted much attention to the consolidation of public records. ^[3] On 18 February 1800, the Select Committee on the State of Public Records was appointed to inquire into the state of public records in England, Scotland and Ireland. ^[4]

Following the report of the committee and humble address to the Sovereign from the House of Commons, the first Record Commission was established on 19 July 1800. ^[3] Successive commissions were issued in 1806, 1817, 1821, 1825, 1831 and 1837. ^[5]

In 1806, the Commission on Public Records passed a resolution requesting the production of a report on the best mode of reducing the volume of the statute book. ^[3] From 1810 to 1825, The Statutes of the Realm was published, providing for the first time the authoritative collection of acts. ^[6] In 1816, both Houses of Parliament, passed resolutions that an eminent lawyer with 20 clerks be commissioned to make a digest of the statues, which was declared "very expedient to be done." However, this was never done. ^[7]

Criminal Law Commissions

In the 1820s, the Home Secretary, Robert Peel, led reforms of the criminal statute book, known as Peel's Acts. ^[2] In 1828, Henry Brougham MP made a famous six-hour speech in the House of Commons, considered to be the longest in the history of Parliament, which paid tribute to Bentham and set in motion reform of the British legal system. ^[8] Following the fall of Wellington's administration, Brougham became Lord Chancellor and made codification a matter of official policy. ^[9]

The Royal Commission on the Criminal Law was established in 1833 and issued its final report in 1845, proposing a draft bill digesting criminal law and procedure. ^[3] However, the ambition for such a comprehensive legal was dissipating. ^[2] Lord Brougham introduced a bill embodying the digest, but it was withdrawn on an undertaking by Brougham's opponent, Lord Lyndhurst, that a second Commission would be appointed to revise it.

The Royal Commission on Revising and Consolidating the Criminal Law was established in 1845 and issued its final report in 1849. ^[3] In autumn of 1852, the Lord Chancellor, Edward Sugden, 1st Baron St Leonards, directed James John Lonsdale and Charles Greaves to prepare Bills for the codification of criminal law based on the reports of the Criminal Law Commissioners. ^[3] Two major Bills based on the work of the Commission covering offences against the person and larceny were introduced in 1853 and continued under Lord Cranworth. The bills made no progress, principally because of the unanimously unfavourable judicial reaction to the prospect of the common law being embodied in statutory form. ^[10]

The first Statute Law Revision Act

At the start of the parliamentary session in 1853, the Lord Chancellor, Lord Cranworth announced his intention to the improvement of the statute law, remarking that: ^[11]

"I think it may be safely said that it is not creditable to any country that its statutes should be in such a condition. ... The great number is of itself a circumstance that affords an irresistible argument for the necessity of doing something, but independently of their enormous quantity, there are other reasons which suggest themselves. They are in a most repulsive form: there is no classification, but they are huddled together in the most complex fashion."

Lord Cranworth went further, proposing steps towards a Code Victoria: ^[11]

"The mere enumeration of the statutes that have been repealed would be something; the consolidation of some of the statutes more easy to be dealt with would be something. To simplify our statutes and improve their style would be something,—would be a great deal. But I look further: I conceive there is no reason why this proposed step should not at some future time, some years hence, constitute the formation of that which I have always looked forward to as the most desirable, though hereto I have feared to be unattainable, a Code Victoria."

In March 1853, Lord Cranworth appointment of the Board for the Revision of the Statute Law to repeal expired statutes and continue consolidation, with a wider remit that included civil law. ^[3] The Board issued three reports dated 18 August 1853, 31 January 1854 and 2 June 1854, recommending the creation of a permanent body for statute law reform.

In 1854, Lord Cranworth appointed the Royal Commission for Consolidating the Statute Law to consolidate existing statutes and enactments of English law. ^[3] The Commission made four reports dated10 July 1855, 5 March 1856, 11 June 1857 and 21 June 1859.

Following the Commission's second report, which recommended the appointment of an officer or board to revise and improve current legislation, the House of Commons resolved on 25 April 1856, requesting a "Copy of the Memorandum of the Attorney-general as to the plan of proceeding in Consolidation of the Statutes". ^[12] The memorandum, dated 2 April 1856, was published on 9 May 1856. ^[12] Attorney General, Alexander Cockburn, proposed a plan of proceeding for the consolidation of the statutes, remarking that: ^[13]

"In order to form a correct judgment as to the course of proceeding which it is expedient to adopt in the Consolidation of the Statutes, it is, in the first place, necessary to have a clear view of what is the true nature and extent of the work which the Commission is called upon to execute. It will then be seen how far what has hitherto been proposed is adequate to the magnitude and importance of the work to be accomplished. To me, I must acknowledge, it appears that the view which has been taken of the object has been too limited and narrow, and that the mode of proceeding has, in consequence, been far from commensurate to the magnitude of the undertaking.

It can scarcely be denied that the state of the law of this country is discreditable to us as a great and enlightened people. Partly written, partly unwritten, that part of our law which is unwritten, is to be gathered from the decision sand dicta of judges, dispersed over many hundreds of volumes of reports, or from the opinions of text writers, of various degrees of authority, contained in innumerable works; while the written law is scattered over thousands of statutes, strung together without any attempt at order or arrangement, and forming no less than forty ponderous volumes; the whole body of the law thus consisting a chaotic mass, to which the 'many camel-loads' of jurisprudence, of which the Roman jurists complained, hardly afford a parallel. A life of labour scarcely suffices to the professional lawyer to master, even imperfectly, this vast amount of legal learning; while to the body of the people, whose rights and duties are to be determined, and whose conduct is to be regulated by the law, that law is practically a sealed book.

The time is at length come for remedying, at least in part, this mighty grievance. Although it is still deemed too difficult a task to attempt to embody, in the more tangible form of writing, the floating rules of the unwritten law, we are called upon by the high authority of the Crown to devise means for reducing into shape and order the heterogeneous mass of written laws which now swell and encumber our Statute Book."

The Attorney General criticised the course of action proposed by the Commission, which recommended selecting particular sets or bundles of the statutes for consolidation, for not wholly digesting the statute book and for not expurgating the statute book of obsolete, spent, unnecessary or superseded enactments. ^[13] The Attorney General proposed alternative aims to the Commission: ^[13]

1. To collect all statutes in force under appropriate heads, i.e., to consolidate.
2. To arrange these heads under the different branches into which the whole body of law divides itself, i.e., to digest.
3. To do this as a great, entire and comprehensive whole into a consolidated and digested body of statute law to be published at once.

To do so, the Attorney General proposed a plan of proceeding, which he suggested would be able to be done in 12-months: ^[13]

1. To survey the whole body of the law under branches, divisions and subdivisions.
2. To set aside and omit statutes repealed expressly or by implication, or which have expired.
3. To present consolidating statutes to Parliament with a provision that all statutes not included be expressly repealed (with the exception of the Magna Carta and the Bill of Rights, seen as a "profanation" to repeal).

An alternative approach, focusing on expunging obsolete laws from the statute book, followed by consolidation, was proposed by Peter Locke King MP , who was heavily critical of the expenditure of the Commission and the lack of results. ^[14] On 29 April 1856, Locke King introduced the Sleeping Statutes Bill, which implemented some recommendation for repeals made by the Commission. ^[12] This led to the passing of the Repeal of Obsolete Statutes Act 1856 (19 & 20 Vict. c. 64), described by Halsbury's Laws, ^[15] and Courtenay Ilbert, ^[3] as the first act for statute law revision (in the sense of repealing enactments which are obsolete, spent, unnecessary or superseded, or which no longer serve a useful purpose).

In 1857 a Select Committee was appointed to consider the Commissioner's second report to improve the manner and language of current legislation. The Committee took evidence from Coulson, Ker, and Coode, but their proceedings were interrupted by the dissolution of Parliament before they had time to make a report. ^[3]

In April 1859, the Attorney General, Sir Fitzroy Kelly, introduced a series of bills to consolidate the criminal law, which had been prepared by the Commission. ^[3] The bills became Charles Greaves' Criminal Law Consolidation Acts 1861. Speaking in Parliament, Kelly said:

"A plan had been proposed to the Commission which had been to a considerable extent acted upon, and in accordance with which ninety- three Bills were then ready, or nearly ready, which would consolidate the whole of the criminal statute law, the whole of the mercantile statute law, and the whole of the real property statute law."

Pursuant to an order of the House of Lords dated 5 July 1859, the Register of Public General Acts, which had been prepared by the Commission and consisted of two volumes from 1800 to the end of 1858, was published. ^[3]

Further Statute Law Revision Acts

By 1859, efforts of statute law revision faced wide criticism from politicians, legal academics and commentators, who focused on the high expenditure to date by various Commissions and Boards (£768,438 since 1830—1859), especially on the salary and motivations of the Commissioners and draftsmen, including Charles Henry Bellenden Ker, the proposed approach taken by the Board to proceed with consolidation before expurgation, and the lack of results to show for it. ^[11]

On 17 February 1860, the Attorney General, Sir Richard Bethell told the House of Commons that he had engaged Sir Francis Reilly and A. J. Wood to expurgate the statute book of all acts which, though not expressly repealed, were not in force, working backwards from the present time. ^[3]

This led to the passing of the Statute Law Revision Act 1861 (24 & 25 Vict. c. 101), which repealed or amended over 800 enactments, the Statute Law Revision Act 1863. (26 & 27 Vict. c. 125), which repealed or amended over 1,600 enactments for England and Wales and the Statute Law Revision Act 1867 (30 & 31 Vict. c. 59) was passed, which repealed or amended over 1,380 enactments.

Preparation etc. of revised editions of the statutes

O. Hood Phillips defined statute law revision as "the reprinting of statute law with the omission of obsolete matter". ^[16]

Legislation.gov.uk uses the terms "revise", "revised" and "revision" to refer to the editorial process of incorporating amendments and carrying through other effects into legislation. ^[17]

Repeal of obsolete enactments

The Law Commission said that statute law revision originally referred to the repeal of enactments which had become inoperative, in order to facilitate the preparation of a revised edition of the statutes. They said that they intended to adopt a more forceful approach by also repealing enactments which no longer served a substantial purpose, and that they hoped that this would also facilitate consolidation. ^[18]

Duty to prepare programmes of statute law revision

It is the duty of the Law Commission to prepare from time to time at the request of the Lord Chancellor comprehensive programmes of statute law revision, and to undertake the preparation of draft Bills pursuant to any such programme approved by the Lord Chancellor. ^[19]

It is the duty of the Scottish Law Commission to prepare from time to time at the request of the Scottish Ministers comprehensive programmes of statute law revision, and to undertake the preparation of draft Bills pursuant to any such programme approved by the Scottish Ministers. ^[20]

What legislation effects statute law revision

In 1971, the Law Commission said that not all statute law revision was being done by Statute Law Revision Bills or Statute Law (Repeals) Bills. They said that an example of this was the statute law revision effected by the Theft Act 1968. ^[21]

Ireland

In the law of the Republic of Ireland, the Law Reform Commission (LRC) is involved in several types of statute law revision: consolidation of dispersed statutes, repeal of dead statutes, and "restatement" (publication of revised, current versions) of amended statutes. As regards consolidation and repeal, the LRC only makes recommendations, which are implemented by act of the Oireachtas (parliament). The LRC's remit under the Law Reform Commission Act 1975 is to make proposals for law reform, defined as "its development, its codification (including in particular its simplification and modernisation) and the revision and consolidation of statute law". ^{[22] [23]} The Statute Law (Restatement) Act 2002, modelled on the schemes in New South Wales and Queensland, ^[24] empowers the Attorney General to authorise official restatements, which do not have force of law but are prima facie evidence of the state of the law. ^[25] After four pilot restatements, responsibility for restatements was transferred from the Attorney General's office to the LRC in 2006. ^[26] The Attorney General's electronic Irish Statute Book (eISB) includes the text of all statutes as enacted, each of which links to the LRC's corresponding revised version where available; ^[27] as of 12 April 2021 ^[update] the LRC has restated 408 acts and two statutory instruments. ^[28] Repeal of dead statutes falls under the Statute Law Revision Programme, begun in 2003 in the Attorney General's office, transferred in 2012 to the Department of Public Expenditure and Reform, and retransferred in 2020 to the LRC. ^[29]

See also

• Law Reform Act
• Statute Law Revision Act
• Statute Law (Repeals) Act

References

• Law Reform Commission (July 2008). Statute law restatement. LRC reports. Vol. LRC 91-2008. Ireland. ISSN   1393-3132.

Citations

1.  One or more of the preceding sentences incorporates text from a publication now in the public domain : Williams, James (1911). "Statute". In Chisholm, Hugh (ed.). Encyclopædia Britannica . Vol. 25 (11th ed.). Cambridge University Press.
2. Farmer, Lindsay (2000). "Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45". Law and History Review. 18 (2): 397–425. doi:10.2307/744300. ISSN   0738-2480. JSTOR   744300.
3. Ilbert, Courtenay (1901). Legislative methods and forms. Oxford: Clarendon Press. p. 57. Retrieved 9 September 2024. This article incorporates text from this source, which is in the public domain .
4. Commons, Great Britain House of (1799). Journals of the House of Commons. H.M. Stationery Office. pp. 201, 215, 410, 411, 701, 729, 752–753, 764, 790, 792.
5. Mullett, Charles F. (1964). "The "Better Reception, Preservation, and More Convenient Use" of Public Records in Eighteenth-Century England". The American Archivist. 27 (2): 195–217. ISSN   0360-9081.
6. Ilbert, Courtenay (1901). Legislative methods and forms. Oxford: Clarendon Press. p. 57. Retrieved 9 September 2024. This article incorporates text from this source, which is in the public domain .
7. Gerald Gardiner, Baron Gardiner (5 June 1967). "Consolidation Bills". Parliamentary Debates (Hansard) . Vol. 283. Parliament of the United Kingdom: House of Lords. col. 179.
8. Vaux, Henry Brougham Baron Brougham and (1828). Present State of the Law: The Speech of Henry Brougham, Esq., M.P., in the House of Commons, on Thursday, February 7th, 1828. Carey, Lea & Carey.
9. Wright, Barry (2007). "Self-Governing Codifications of English Criminal Law and Empire: The Queensland and Canadian Examples" (PDF). The University of Queensland Law Journal. 26 (1): 39–65.
10. "Criminal Law: Codification of the Criminal Law: A Report to the Law Commission" (PDF). Law Commission. p. 7. Retrieved 10 September 2024.
11. The Westminster Review. Vol. 67. J. Chapman. 1857. pp. 73–98.
12. Comons, Great Britain House of (1856). The Journals of the House of Commons (PDF). Vol. 111. pp. 158, 190.
13. Commons, Great Britain Parliament House of (1856). Accounts and Papers of the House of Commons. Vol. 50. Ordered to be printed.
14. "Supply—Miscellaneous Estimates". Parliamentary Debates (Hansard) . Vol. 142. Parliament of the United Kingdom: House of Commons. 2 June 1856. col. 865–880.
15. Halsbury's Laws of England. Fourth Edition. Reissue. Butterworths. London. 1995. Volume 44(1). Note 3 to paragraph 1227 at page 725.
16. O. Hood Phillips. A First Book of English Law. Fourth Edition. Sweet & Maxwell. 1960. Page 90.
17. Legislation.gov.uk. Glossary.
18. The Law Commission. Law Commission's First Programme on Consolidation and Statute Law Revision. HMSO. London. 1966. Paragraph 14 at page 6.
19. The Law Commissions Act 1965, section 3(1)(d) (as read with section 6(2))
20. The Law Commissions Act 1965, section 3(1)(d) (as read with section 6(2) as amended by articles 1(2) and 4 of, and paragraph 36(6) of Part I of Schedule 2 to, the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (SI 1999/1820)).
21. The Law Commission. Law Commission's Second Programme on Consolidation and Statute Law Revision. Law Com 44. HMSO. London. Ordered to be printed 20 April 1971. Paragraph 16 at page 6.
22. "Law Reform Commission Act 1975". Revised Acts. Law Reform Commission. 5 March 2019. §§1, 4(1). Retrieved 12 April 2021.
23. Law Reform Commission 2008, p.6 §1.03
24. Hanafin, Mary (15 June 2000). "Statute Law (Restatement) Bill, 2000: Second Stage". Seanad Éireann (21st Seanad) debates. Houses of the Oireachtas. Retrieved 12 April 2021.
25. "Statute Law (Restatement) Act, 2002". electronic Irish Statute Book (eISB). Retrieved 12 April 2021.
26. Law Reform Commission 2008, p.1 §2; p.103 §4.35
27. "Frequently Asked Questions". electronic Irish Statute Book (eISB). Tracking amendments to legislation > Where can I find the text of an Act with the amendments included (Revised Act)?. Retrieved 12 April 2021.
28. "Alphabetical List of Pre and Post 2006 Revised Acts". Dublin, Ireland: Law Reform Commission. Retrieved 12 April 2021.
29. "LRC takes over scrutiny of obsolete laws". Gazette. Law Society of Ireland. 19 Mar 2020. Retrieved 12 April 2021.

Further reading

• Jowitt. Statute Law Revision and Consolidation. 1951.
• Strickland, P. English Statute Law Revised. Analysis of the effect of the Legislation of 1895 and 1896. 2 vols. 1896 - 1897.
• Marshall, "Statute Law Revision in the Commonwealth" (1964) 13 International and Comparative Law Quarterly 1407
• Carrington, "Statute Law Revision" (1890) 4 Timehri 226
• Francis Savage Reilly. Statute Law Revision: Observations on the New Edition of the Statutes in Preparation under the Authority of Her Majesty's Government. James Ridgway. Picadilly, London.1862. "Method of Legislation". Papers and Discussions on Jurisprudence: Being the Transactions of the National Association for the Promotion of Social Science. London Meeting, 1862. Butterworths. Fleet Street, London. 1862. pp 23 to 29.