How is the law reformed, and what was the influence of the European Union on UK law before and after Brexit?
Law reform: the influences on reform and the role of the Law Commission, and the European Union: its institutions and sources of law, and the post-Brexit status of retained (assimilated) EU law.
An OCR A-Level Law guide to law reform and the European Union. Explains the influences on reform and the role of the Law Commission, the EU institutions and sources of law, and the post-Brexit status of retained (assimilated) EU law, with worked exam answers and the AO3 evaluation the paper rewards.
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What this dot point is asking
OCR Component 2 Section A requires you to know how the law is reformed, especially the role of the Law Commission, and the influence of the European Union on UK law: its institutions and sources of law while the UK was a member, and the post-Brexit position of retained (now assimilated) EU law. The skill is to describe these for AO1 and to evaluate the EU's influence and the success of law reform for AO3.
The answer
Law reform and the Law Commission
The law is reformed in response to the government's manifesto and programme, criticism by judges in their judgments, campaigns by pressure groups and the media, the recommendations of public inquiries and Royal Commissions, and international obligations.
The Law Commission has a strong record (its work contributed to reforms such as the Consumer Rights Act 2015 and proposals to reform the non-fatal offences), but its proposals only become law if the government finds parliamentary time and is willing to act, so some reports are never enacted.
The European Union
While the UK was a member of the European Union, EU law was a major source of UK law:
- Institutions. The European Commission (proposes law), the Council of the European Union and the European Parliament (enact it), and the Court of Justice of the European Union (CJEU) (interprets it and gave preliminary rulings to national courts).
- Sources. Treaties (primary law), Regulations (directly applicable without national implementation), Directives (binding as to the result, requiring national implementation) and Decisions.
- Effect on UK law. The European Communities Act 1972 gave EU law effect in the UK, and EU law had supremacy over conflicting domestic statute in areas of EU competence (Factortame, where a UK Act was disapplied).
The post-Brexit position
Examples in context
A strong evaluation links the EU's past influence and the post-Brexit change to the doctrine of parliamentary supremacy.
Try this
Q1. Explain the difference between consolidation and codification as functions of the Law Commission. [10 marks]
- What the marker wants. Precise AO1: consolidation brings scattered statutory provisions on one topic into a single Act without changing the law; codification restates a whole area (including common law) in one comprehensive Act, which may change the law.
Q2. Discuss the extent to which the Law Commission is an effective body for reforming the law. [20 marks]
- Cue. An AO3 evaluation: weigh its independence, expertise, consultation and research against its dependence on government time and the fact that many reports go unimplemented, then judge its effectiveness.
Exam-style practice questions
Practice questions written in the style of OCR exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
OCR H418/02 2020 (Section A style)15 marksDescribe the role of the Law Commission in the reform of the law. [a medium-tariff Section A question; true tariff varies between 10 and 15 on the real paper]Show worked answer →
A Section A knowledge question, mainly AO1, rewarding the Law Commission's role and an example.
Establishment and nature. The Law Commission was set up by the Law Commissions Act 1965 as an independent, permanent body to keep the law of England and Wales under review.
Functions. Repeal of obsolete laws; consolidation (bringing scattered statutes into one Act); codification (restating a whole area, such as a proposed criminal code); and systematic reform of specific areas, producing consultation papers and final reports with a draft Bill.
Evaluation point. Many proposals are implemented (for example contributing to the Consumer Rights Act 2015 and offence reforms), but implementation depends on government time and willingness, so some reports are not enacted.
A top answer states the establishment, the functions and an example, and notes the dependence on Parliament.
OCR H418/02 2022 (Section B essay)20 marksDiscuss the extent to which the European Union influenced law making in the United Kingdom, and how that influence has changed since Brexit. [Section B extended-response evaluation, AO3]Show worked answer →
An AO3 evaluation essay marked by levels of response. The top level explains the past influence, the change, and judges.
The past influence. As a member, the UK gave effect to EU law through the European Communities Act 1972; EU law had supremacy over conflicting statute (Factortame); regulations applied directly and directives were implemented; the Court of Justice gave preliminary rulings.
The change after Brexit. The European Union (Withdrawal) Act 2018 repealed the 1972 Act, ended the supremacy of EU law for the future, and created retained EU law (now relabelled assimilated law), so existing EU-derived rules continued but Parliament regained the freedom to amend or repeal them.
Judgement. Conclude that EU membership was a major qualification of parliamentary supremacy, and that Brexit has restored Parliament's legal freedom while leaving a large body of assimilated law in place. The top level judges rather than lists.
Related dot points
- Parliamentary law making: the influences on Parliament, Green and White Papers, the legislative process through both Houses, and the doctrine of parliamentary supremacy (sovereignty) and its limits.
An OCR A-Level Law guide to parliamentary law making. Explains Green and White Papers, the legislative process through both Houses to Royal Assent, the influences on Parliament, and parliamentary supremacy and its limits, with worked exam answers and the AO3 evaluation the paper rewards.
- Delegated legislation: the three types (Orders in Council, statutory instruments and bylaws), the reasons for it, and the parliamentary and judicial controls including the ultra vires doctrine.
An OCR A-Level Law guide to delegated legislation. Explains Orders in Council, statutory instruments and bylaws, the reasons for delegating law-making power, and the parliamentary and judicial controls including the ultra vires doctrine, with worked exam answers and the AO3 evaluation the paper rewards.
- Statutory interpretation: the literal, golden and mischief rules, the purposive approach, the rules of language, and the internal and external aids to interpretation.
An OCR A-Level Law guide to statutory interpretation. Explains the literal, golden and mischief rules, the purposive approach, the rules of language and the internal and external aids, with key cases, worked exam answers and the AO2 application the paper rewards.
- Judicial precedent: stare decisis, ratio decidendi and obiter dicta, the hierarchy of the courts, binding and persuasive precedent, and the methods of avoiding precedent (overruling, reversing, distinguishing).
An OCR A-Level Law guide to judicial precedent. Explains stare decisis, ratio decidendi and obiter dicta, the court hierarchy, binding and persuasive precedent, and the methods of avoiding precedent, with key cases, worked exam answers and the AO3 evaluation the paper rewards.
- The extended evaluation essay (AO3): building a balanced critical argument with examples, weighing strengths and weaknesses, and reaching a reasoned and supported judgement that answers the question.
An OCR A-Level Law guide to the extended evaluation essay. Explains how to build a balanced critical argument, weigh strengths and weaknesses with examples, and reach a reasoned judgement, with a worked plan and the AO3 evaluation the paper rewards across all three components.
Sources & how we know this
- OCR A Level Law (H418) specification — OCR (2017)
- European Union (Withdrawal) Act 2018 — UK Parliament (2018)