Welcome to Law Making: Law Reform and the European Union
Welcome to one of the most essential units in your AQA A Level Law (7162) Paper 1 revision! In Paper 1, Section A evaluates your understanding of The Nature of Law and the English Legal System. Law reform and EU law are regular features in multiple-choice, 5-mark short answer, and 10/15-mark evaluation questions.
Don't worry if this topic feels a bit technical at first. We will break everything down into bite-sized, straightforward steps with clear examples, memory tricks, and direct warnings about common exam traps.
Part 1: Law Reform and the Law Commission
1. What is the Law Commission?
The Law Commission is an independent, permanent, full-time law reform body set up by Parliament under the Law Commissions Act 1965. Its main job is to keep the law of England and Wales under constant review to ensure it is fair, modern, simple, and cost-effective.
Composition of the Commission:
• 1 Chairperson: A High Court or Court of Appeal Judge (appointed for up to 3 years).
• 4 Commissioners: Highly experienced legal practitioners (barristers, solicitors) or academic lawyers.
• Supported by research assistants, government legal staff, and parliamentary counsel (expert legal draftsmen).
2. The Four Core Functions of the Law Commission
To remember the four functions, use the memory trick R-C-C-R ("Really Clever Commissioners Reform"):
1. Reform: Updating and improving substantive areas of law that are outdated, unfair, ambiguous, or overly complex. The Commission reviews whole areas of law and proposes modern statutory replacements.
2. Codification: Bringing together all the law on a particular topic—both statutory rules and judge-made common law—into one single, comprehensive, logical statute or code (e.g., the Draft Criminal Code or the Sentencing Code within the Sentencing Act 2020).
3. Consolidation: Drawing together statutory provisions that are scattered across several different Acts of Parliament into a single new Act. Crucial note: Consolidation cleans up the statute book without changing the underlying legal principles (e.g., Powers of Criminal Courts (Sentencing) Act 2000, Equality Act 2010).
4. Repeal / Statute Law Revision: Identifying obsolete, redundant, and dead Acts of Parliament and recommending that Parliament formally scrap them using Statute Law (Repeals) Acts. This removes old, useless laws that clutter the legal system.
Analogy to remember Codification vs. Consolidation:
• Consolidation is like tidying your messy bedroom by moving all your scattered shirts into one wardrobe drawer (nothing new is created; things are just gathered in one place).
• Codification is like designing an entirely new wardrobe system from scratch that organizes shirts, trousers, and shoes together according to a brand-new, logical plan.
3. The Law Commission Reform Process
The Law Commission works through a systematic four-step procedure:
• Step 1: Selection & Reference: Topics are referred by government departments / the Lord Chancellor or proposed independently by the Commission in its periodic programmes.
• Step 2: Research & Consultation Paper: The Commission conducts research and publishes a detailed working paper setting out current law, highlighting defects, and presenting options for reform. It invites responses from judges, lawyers, academics, and the public.
• Step 3: Final Report & Draft Bill: After reviewing the consultation feedback, the Commission publishes an official report containing firm recommendations. Crucially, it attaches a ready-made Draft Bill written by expert draftsmen.
• Step 4: Implementation: The Draft Bill must be debated and passed by Parliament to become law. To improve slow uptake, the Law Commission Act 2009 created a legal duty for the Lord Chancellor to report annually to Parliament on the implementation status of Law Commission proposals.
4. Evaluating the Law Commission (Exam Essay Points)
Strengths / Advantages:
• Expertise and Independence: Staffed by leading legal experts and judges free from party political bias.
• Thorough Consultation: Gathers views from legal professionals, interest groups, and the public, resulting in well-scrutinized proposals.
• High Quality Draft Bills: Produces complete, ready-drafted legislation, saving Parliament valuable drafting time.
• Simplification & Modernization: Makes the law clearer, more accessible, and easier for citizens and lawyers to understand.
Weaknesses / Disadvantages:
• Lack of Parliamentary Time & Political Will: The Commission is purely advisory and cannot pass laws itself. Many detailed reports are delayed or shelved for decades because governments prioritize politically popular legislation (e.g., long-delayed reforms to non-fatal offences under the Offences Against the Person Act 1861).
• Slow Codification: Ambitious plans to codify large swathes of the law (such as the entire general criminal law) proved overwhelmingly complex and have largely stalled.
Key Takeaway for Law Reform: The Law Commission is an advisory body created under the Law Commissions Act 1965. It carries out Reform, Codification, Consolidation, and Repeal, but relies on Parliament to enact its Draft Bills into law.
Part 2: Law Making and the European Union
Why do we still study EU Law? Although the UK formally departed from the EU on 31 January 2020 under the European Union (Withdrawal) Act 2018 and European Union (Withdrawal Agreement) Act 2020, the AQA specification requires you to understand the EU's institutions, sources of law, and historical/constitutional impact on the English legal system.
1. The Four Key EU Institutions
1. The European Commission:
• Composition: One Commissioner from each Member State, acting independently in the interest of the EU as a whole.
• Functions: The executive arm of the EU. It holds the primary power of legislative initiative (proposes new EU laws), manages EU policies and budgets, and acts as the "Guardian of the Treaties" by taking Member States to court if they fail to follow EU law.
2. The Council of the European Union (Council of Ministers):
• Composition: Government ministers from each Member State. The exact ministers present change depending on the topic (e.g., Agriculture Ministers for farming debates; Finance Ministers for economic debates).
• Functions: The principal decision-making and legislative body of the EU. It debates, amends, and adopts legislation (usually jointly with the European Parliament) and approves the EU budget.
3. The European Parliament:
• Composition: Members of the European Parliament (MEPs) directly elected by EU citizens every 5 years.
• Functions: Acts as a co-legislator alongside the Council of the EU under the Ordinary Legislative Procedure. It exercises democratic supervision over the European Commission (holding the power to approve or censure the Commission) and votes on the EU budget.
4. The Court of Justice of the European Union (CJEU / ECJ - Luxembourg):
• Composition: One judge per Member State, assisted by independent Advocates General.
• Functions: Ensures that EU law is interpreted and applied consistently across all Member States. It hears enforcement actions against Member States for treaty breaches and answers preliminary references sent by domestic national courts under Article 267 TFEU on how to interpret EU law.
2. Sources of EU Law: Primary vs. Secondary
Primary Source — Treaties:
Foundational agreements signed and ratified directly by the Member States (e.g., Treaty of Rome 1957, Treaty on European Union [TEU], Treaty on the Functioning of the European Union [TFEU]). Treaties are the supreme constitutional rules of the EU.
Secondary Sources — Regulations and Directives:
• Regulations: Laws that are directly applicable in all Member States from the day they take effect. They automatically become part of national domestic law without national parliaments having to pass any implementing legislation.
• Directives: Laws that are binding on Member States as to the result to be achieved, but leave national authorities the choice of form and methods to implement them within a set deadline. In the UK, Directives were usually incorporated into national law using Statutory Instruments.
3. Key Principles of EU Law in the Domestic Legal Order
1. Direct Applicability:
The legal rule applies automatically inside the domestic legal system without requiring an Act of Parliament (applies to EU Regulations).
2. Direct Effect:
Established in Van Gend en Loos, direct effect allows an individual citizen to enforce an EU law provision directly before their national courts if the provision is clear, precise, and unconditional.
There are two types of direct effect:
• Vertical Direct Effect: An individual can enforce the EU law against the State or an organ/emanation of the State (such as local authorities, state schools, or national health authorities). Established in cases like Marshall and Foster v British Gas. Treaties, Regulations, and properly eligible Directives (where the implementation deadline has expired) have vertical direct effect.
• Horizontal Direct Effect: An individual can enforce the EU law against another private individual or private company (e.g., Macarthys Ltd v Smith; Defrenne v Sabena). Treaties and Regulations have horizontal direct effect.
CRUCIAL RULE: Directives DO NOT have horizontal direct effect. You cannot enforce an unimplemented Directive against a private employer or private citizen (confirmed in Duke v GEC Reliance and Farrell).
3. The Supremacy of EU Law:
Under EU jurisprudence (Costa v ENEL), EU law takes precedence over conflicting national law.
In the UK, Parliament recognized this supremacy by passing the European Communities Act 1972 (ECA 1972 s.2(1) and s.2(4)). This was famously demonstrated in the landmark case of R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1990], where the House of Lords suspended the application of the UK Merchant Shipping Act 1988 because it conflicted with EU law.
Key Takeaway for EU Law: Treaties are primary; Regulations and Directives are secondary. Directives have vertical direct effect only, whereas Treaties and Regulations have both vertical and horizontal direct effect. Through the European Communities Act 1972 and Factortame, EU law held supremacy over conflicting domestic UK legislation.
Part 3: Common Pitfalls & Exam Traps to Avoid
Trap 1: Confusing European Courts and Bodies
• The Court of Justice of the European Union (CJEU) is based in Luxembourg and is the supreme court for EU law.
• The European Court of Human Rights (ECtHR) is based in Strasbourg and is part of the Council of Europe (which deals with the European Convention on Human Rights, NOT EU law). Never mix these two up!
Trap 2: Confusing the Law Commission's Role
Never write that the Law Commission "passes" or "enacts" laws. The Commission is an advisory and drafting body. Only Parliament has the constitutional authority to pass Acts of Parliament.
Trap 3: Mixing up Codification and Consolidation
• Consolidation brings scattered statutory sections together without altering the substance of the law.
• Codification gathers both case law and statute law together, creating a unified and structured code from the ground up.
Trap 4: Claiming Directives Have Horizontal Direct Effect
Examiners frequently test this. Remember: Directives can never be directly enforced against private individuals or private businesses—they only have vertical direct effect against the State or public bodies.
Part 4: Quick Summary Checklist
Before sitting your exam, make sure you can confidently answer the following:
• Can you state the statutory origin of the Law Commission (Law Commissions Act 1965)?
• Can you explain the 4 functions: Reform, Codification, Consolidation, Repeal?
• Can you evaluate the strengths and weaknesses of the Law Commission?
• Can you name the 4 core EU institutions and outline what each does?
• Can you explain the difference between an EU Regulation and an EU Directive?
• Can you distinguish between vertical and horizontal direct effect with cases (Marshall, Foster v British Gas, Duke v GEC Reliance)?
• Can you cite the UK constitutional mechanism for EU supremacy (European Communities Act 1972 and Factortame)?