What arrangements does the English legal system make for dealing with outdated statutes? How effective is this system?
Answer Plan
Parliament has been enacting statutes for over 750 years. While many of the older statutes have been repealed, many remain that are obsolete or unnecessary. Through a programmatic survey and evaluation of statute law, the Law Commission works to recommend which Acts should be abolished. It then makes reports, which Parliament uses periodically to legislate the repeal of anachronistic law.
The Law Commission is an independent body for law reform, established by statute in 1965. Its aims are to ensure that the law is ‘as fair, modern, simple and as cost-effective as possible’. It conducts research and consultations in order to make systematic recommendations for consideration by Parliament. It acts to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes.
Following the Law Commission’s recommendations, Parliament uses Statute Law (Repeals) Acts as the instruments by which the old law is abolished. These enable a large number of statutes which are no longer of any practical use to be repealed together. However, while it is important to clear outdated law from the statute book, it is equally important to avoid accidentally removing a useful law (e.g. one that is the legal basis for someone's rights), and, therefore, a great deal of consultation is needed. A great deal of editing out of old law has been achieved. Since 1965, the whole, or part, of nearly 5000 enactments has been repealed by Statute Law (Repeals) Acts.
The latest report (the eighteenth since 1965) resulted in the Statute Law (Repeals) Act 2008. This repeals the entirety of 260 Acts of Parliament, and repeals parts of another 68 Acts. The old statutes included laws on scores of things, from undesirable street musicians to a 1973 scheme to finance a channel tunnel, a work which was eventually completed in 1994.
Sir Terence Etherton, Chairman of the Law Commission for England and Wales, said, at the launch of the eighteenth report on 29 January 2008,
Dead law can lead to false expectations and consequent costs. People need to be clear about what is in force and what is not, and an oversized statute book filled with out-of-date information wastes everybody’s time. As part of our drive to modernise and simplify the law we want to rid the statute book of meaningless provisions from days gone by which are no longer relevant in our modern world.
A great range of Acts is repealed by the 2008 legislation. The areas of abolished law include the repeal of 40 Acts dating from 1700 for building local prisons across 19 counties in England and Wales, repeal of 12 obsolete Acts relating to the former East India Company, and the repeal of obsolete laws on turnpikes dating back to a time when roads were maintained locally, with travellers having to pay a toll to cross a turnpike.
One Act abolished in 2008 was the Disorderly Houses Act of 1751. It was passed to regulate disreputable ‘places of publick entertainment’. Disorderly houses were seen as a major cause of theft and robbery because they encouraged people to fritter away their earnings, and then resort to crime to survive. Most of the Act had been previously repealed but until 2008 one last part remained – a section aimed at convicting anyone who was factually in charge of such houses. The Act noted that by many ‘subtle and crafty contrivances’ of managers it was difficult to prove who was in charge of a bawdy house (brothel) or disorderly house, so it said anyone could be convicted of running such a place if they appeared to be running it or behaved like they were in charge. The Act became unnecessary as modern legislation more clearly criminalises running a brothel and unlawful gaming.
Also repealed was the Servants’ Characters Act 1792. This was passed to stop what was seen as a dangerous ruse. A crook applying for a job as a servant for a wealthy master would fix it so that his character reference would come from an accomplice posing as a master at another grand address. Once in the job, the servant would case the joint, quit the job, then go back later and burgle the place. The Act was passed to prevent ‘evil-disposed persons’ giving ‘false and counterfeit Characters [job references] of Servants’. It made that a crime. However, this crime was prosecuted only once in the last two hundred years, and, in any case, there are now other criminal and civil laws that can be used against people who get jobs by false representations.
The Wapping Workhouse Act 1819, which was also repealed, was designed to get funding for a new workhouse in Upper Wall Alley in London. The funding was procured and the workhouse built. It is mentioned by Charles Dickens in The Uncommercial Traveller.
We shall always need to be ruled by some volumes of old legal rules because law is built solidly and expected to apply for a long time. That is what the American judge Justice Holmes meant when he said (1930) that law was ‘the government of the living by the dead’. None the less, it is desirable to have a periodic rationalising of law when all the anachronistic statutes are sheared away. The methodical and highly expert way in which the Law Commission scrutinises statute law with a view to recommending the abolition of defunct law is highly effective.
One problem for the English legal system, however, is that although the Law Commission is very efficient in its work of systematically editing away outdated law, parliament is creating law so prodigiously that the overall stock of law is augmenting, not diminishing. Since 1997, the Government has passed 400 Acts of Parliament and more than 32,000 statutory instruments. The legislation runs to more than 120,000 pages. In 2007 over 3,000 pages of new law were added to the statute books.