Abstract/Summary

Member States of the European Union all grapple with the challenge of implementing consumer law into their legal order. For many civil law countries, the exercise has always proven rather more complex than it has historically been in England. Indeed, in countries where law is already codified, each new Directive requires careful analysis as to how it can be best integrated and accord with already established rules. In England, the practice has long been much simpler, the product of a mixture of specialised regulatory rules existing alongside the common law and some ‘copying and pasting’ of EU legislation. However, this resulted in consumer law becoming a strange area of law, not least because it is incredibly complex. Consumer law is currently undergoing a significant transformation and a new Consumer Rights Bill was introduced in 2013. It ‘is the biggest overhaul of consumer rights for a generation. It sets out a simple, modern framework of consumer rights that will promote growth through confident consumers driving innovation and more competitive markets.’ The Bill is unquestionably ambitious. It pulls together the provisions of numerous pre-existing statutes (most of which are procedural). The main reforms include the consolidation of sales law (including goods, services and hire-purchase), the introduction of rules for digital content; the reform of unfair terms (pulling together the main two pieces of statute governing this area and clarifying the scope of application of the review of unfair terms) and the rationalisation of enforcement rules that were, to this point, governed by over 60 separate pieces of statutes. The complex web of legislation that developed across the decades, evolving from the common law to a statutory system strongly inspired by European law, is therefore undergoing significant rationalisation. So much so that one can venture that consumer law, first conceived as an ad hoc and pragmatic system, is slowly moving towards codification. While codification is far from achieved, nor forecasted in the way member states of civil law heritage would perhaps conceptualise it, the process of consolidation into a single piece of statute of some consumer rights marks the start of a more accessible and organised consumer law. It therefore appears timely to reflect on how English consumer law ought to develop in the future and whether the embryonic codification should be pursued, replaced by some other form or abandoned altogether to a return to its judge-made common law roots. This article starts with clarifying the terminology used and defining codification. It then proceeds with looking at codification in England and demonstrates that it is in fact an idea that is deep in the roots of the common law. Based on this, it discusses the codification of consumer law, charting its evolution. It continues with a discussion of two case studies showing how complex the system has actually become and justifying that full attention is given to reforms and codification. Finally, this article reviews the latest efforts to reform consumer law. It argues that UK consumer law would benefit from fuller codification. While the latest wave of reform falls significantly short, it marks a change in the way consumer law is being thought of in the UK and paves the way for future codification efforts.