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Law reform agencies
Gavin Murphy
2 - The Establishment of a Law Reform Agency (cont'd)
2.1 Organisation (cont'd)
2.1.4 Nature and scope of work
Mandate
There is a broad range of opinions on what the appropriate mandate of a law reform agency should be. The traditional functions of a law commission have been to keep the law constantly under review, to consult widely to find new solutions to law-related problems and to make proposals for reform of the law. There are many conceivable variations of what the mandate of a law commission should actually be. For example, a commission could be responsible for :
- identifying areas of the law needing reform
- partnering with other organisations, assuming a consultative and coordinating role, and assigning research activities to selected private organisations such as universities and law schools
- identifying areas of the law that have already been researched, nationally or internationally, and coordinating the dissemination of this information
- supporting legal reform initiatives in the community, for example, pilot projects
- developing legislative proposals
- providing public education and bringing law reform activities to the public through various channels[169]
- providing general public input into the reform process by the inclusion of citizens' advisory councils in law research initiatives
At one end of the spectrum, some observers believe that a law commission's role should be limited to recommending non-controversial changes aimed at increasing the efficiency of the law without affecting its policy content. In the British-inspired view prevailing in Canada and other Commonwealth countries, this approach to legal reform has historically resulted in an emphasis on matters perceived as strictly legal or procedural in nature. But this role has often been criticised as being overly conservative. It has been argued that as long as the final choice on what action to take remains with elected representatives, it is wrong to suggest that law reform bodies exceed their jurisdiction when considering policy matters[170].
Commissions in Canada were historically formed with legal personnel. Their functions were therefore defined and their priorities set according to a legal framework. The most important policy decisions in law reform are the choice of subjects for study and the analytical approach to be taken. These choices have traditionally been made more in response to lawyers' dissatisfaction with the law and its processes than to the injustices felt by citizens. This result is hardly coincidental[171]. As long as these matters are left to lawyers, this cycle is unlikely to change. If the law-versus-policy distinction is to continue as the basis for defining the role and ordering the priorities of law reform agencies, it should be recognised that these agencies are specialised legal research bodies concerned with only one aspect of the legal order, namely the written law. Yet other commentators are of the view that a law reform commission should be the prime instrument for the advancement of social change.
A balanced position between these two views seems desirable, if only for practical reasons. The focus of law reform should arguably be limited to law and legal institutions, but always viewed within the larger social context. This approach means taking a middle position between the extremes of obsession with statutes and legal doctrine on the one hand and, on the other, an excessively broad concern with social policies and priorities that would make a super-legislature of a law reform commission[172]. Policy issues should not automatically be excluded from the subjects that a law commission can review[173].
A case has been made for taking a broader view of appropriate subjects when setting up the program of a law commission[174]. As has long been noted, serious consideration should be given to moving beyond the traditional areas of law reform examination, such as criminal and family law[175]. A dynamic and contemporary law commission should apply its collective mind to complex fields of law such as computer law, competition law, environmental protection law and trade law. But a law reform body must guard against moving too far in areas having little or no practical application. It should not interpret its independence as a freedom to pursue the irrelevant[176]. Realistic and responsive priorities cannot be established in isolation from the major points of contact between the legal system and the people it serves.
Scope of work
Law commissions will always be pressured by the government to conduct limited projects of smaller scope and less importance as political needs and opportunities arise. This is not to say that the study of narrow subjects is invariably of limited use, for relatively small projects can be of significant value in the legal reform field. But the law reform commission framework, by its nature, generally lends itself best to the examination of large and complex matters.
The importance of this particular aspect of law commission operations cannot be overemphasised. Yet there are practical limits to the scale of reform, and some law reform commissions have moved from one extreme to another as a result of embarking on programs that were perhaps too elaborate. For example, the Law Commission for England and Wales started operating on the basis of a very ambitious plan of action. However, the many difficulties that arose led it to progressively narrow its scope of activity and, ultimately, to cease updating its program. The Commission has taken on work in response to specific references from the government and given this work a higher priority than completion of its own program. Convenience has often been the approach it followed, as the following example shows.
The Commission came to identify a growing problem in the inability of many elderly people to appoint substitute decision makers to look after their property interests. This finding led the Commission to accept a reference from the government on the subject. The Commission originally took the view that the problem was not one that should be dealt with in isolation and that what was needed was a complete review of the procedure for dealing with the property of persons incapable of making decisions. But the Commission soon realised that it would be better to deal with a specific issue and get results than to become involved in an inevitably lengthy and controversial exercise. As a result, the legislation on the appointment of substitute decision makers proposed by the Commission was speedily enacted and put into effect[177].
The dilemma of choosing between large and narrow subjects reflects a more fundamental issue of selection between the important and the urgent. The appeal of the urgent should not be underestimated. Due to the generally short-term tenure of commissioners — as well as the politicians to whom a law commission ultimately reports — relatively modest projects might be preferred. This preference can ensure that tangible contributions and concrete results are achieved during specific appointments.
The inherent tension between the political advantages of limited and visible initiatives and the need to conduct in-depth research on fundamental matters constantly appeared during the existence of the Law Reform Commission of Canada. The issue was also raised during the Parliamentary debates on the proposed legislation to create the Commission. During the second reading debate on Bill C-186 to establish the Commission, the Minister of Justice, John Turner, said that the new Commission would be looking in a long-term way at the "general federal statutory fabric of the laws of Canada"
, adding that it would also be provided with adequate time, expertise, independence and "tranquillity from everyday activity"
to carry out this task[178]. But Gordon Blair, the Member of Parliament for the district of Grenville-Carleton, also hoped that the new Commission would be mindful of the need to also take on smaller reform measures[179].
In the end, the legislation creating the Law Reform Commission of Canada in 1971 left all the possibilities open. The new agency was given a general mandate to study the laws of Canada and keep them under review on a continuing and systematic basis. The first of the five presidents that the Commission had over the span of its existence, Patrick Hartt, steered a careful course by stating that the role of his organisation was to strike a balance between major projects and minor initiatives[180]. The fourth president, Allen Linden, made statements along the same lines[181]. In reality, however, it appears that the Commission had moved quite early toward the consideration of broader questions, leaving the correction of small defects to government officials. It seems that the second president of the Commission, Antonio Lamer, was the only one to be completely unapologetic about this approach[182]. Nevertheless, in later years he also acknowledged the value of shorter-term projects, accepting that a law reform commission can, and should, engage in both types of studies[183]. The Commission's last president, Gilles Létourneau, agreed that a law reform agency should essentially engage in longer-term projects, but he also recognised the value in shorter-term projects in appropriate circumstances. In contrast with the practice in Canada, the New Zealand Law Commission's activities are decidedly weighted toward long-term projects[184].
2.1.5 Independence and accountability
Relationship with elected representatives
A fundamental consideration in designing a law reform agency is the need to strike a balance between maintaining the independence of the agency and ensuring that its work remains relevant.
A law commission that frequently antagonises the government could not survive unless it is created by the country's Constitution and guaranteed unlimited resources. Some form of accountability is needed. The Lord Chancellor in England and Wales and the Secretary of State in Scotland must approve law commission research programs before work can commence. Thus, the Commission can develop its own program, but the government holds a veto power over the contents of that program. The federal Law Commission of Canada has the power to initiate research on reform matters without government authorisation. But the Commission must consult with the Minister of Justice with respect to the annual program of studies that it proposes to undertake. Annual research programs are also submitted to the Minister of Justice in New Zealand. An annual report is tabled in the United Kingdom, New Zealand and Canadian Parliaments, detailing each respective commission's activities from the previous year.
Reporting requirements ensure that a public body created by Parliament is accountable. Reporting obligations also foster transparency and good working relationships with the government and Parliament. This process will, in turn, improve Parliament's understanding of the law commission's activities and help to increase the potential for implementation of reform recommendations. The reporting function can also lead to greater public appreciation of the commission's activities[185].
It is essential that a law reform agency's relations with the legislature promote respect for its work. But no commission is totally free from political accountability or fiscal reality. A law reform body can cease to exist at the stroke of a pen, as shown by the fates of the first federal Law Reform Commission of Canada and several provincial agencies. While a commission always hopes that its recommendations will be implemented in the form of legislation, there is no guarantee that this will happen. Since law reform bodies are advisory in nature, the government and Parliament have the discretion to take action or not on proposals. As one Attorney General of Canada observed, no legislative body elected by the people for the purpose of amending the law is going to delegate this responsibility to another organisation[186]. Further, under the basic principles of constitutional law, Parliament cannot delegate its primary law-making authority.
As a result of tight Parliamentary timetables, government departments, which always have a variety of legislative initiatives under consideration, are often reluctant to see scarce time absorbed in detailed discussion of reforms for which there is little evident political or departmental benefit. Codification of the law may be something everyone praises in the abstract, but there is little enthusiasm for the results. No Cabinet minister expects to obtain voter support for matters that are dry and not immediately relevant.
Likewise, the prospect of contentious or highly technical law reform proposals being tabled in the legislature — and their consumption of valuable time in debate — is also unappealing. This consideration tends to exclude proposals that do not command broad all-party Parliamentary support, regardless of the intrinsic worth of these measures. To propose complex reform measures requires knowledge of the inner workings of government and an acceptance of the fact that recommendations will not always be adopted. According to Professor Peter North, a commissioner with the Law Commission for England and Wales from 1976 to 1984, the process should be changed. Reforms should initially be assessed in Parliamentary committees prior to the introduction of legislation in Parliament[187].
A former chair of the Law Commission for England and Wales saw no problem with the requirement for government approval to initiate the Commission's research programs. This view is based on what is seen to be the safeguard of accountability, both political and financial[188]. The procedure can be seen as the balance between executive control vested in ministers to approve programs and the wide powers given to the Commission to consider any aspect of the law within these programs. This independent power can also extend to working with the government, if this collaboration will be beneficial in the Commission's reform analysis[189]. As regards the Law Commission of Canada, independence from the government allows it to develop proposals that are not tied to the political mandate set by Parliament[190]. Nevertheless, formal and informal linkages and partnerships with government departments in appropriate instances are common.
A law commission must be permitted to suggest ways of improving the law that may not have occurred to the government and to take into account perspectives on the law that the government may not have considered. A commission's constituents are not only the legal community but also every citizen affected by the law. This principle also implies that a law commission should have the right to present its views in public. Nevertheless, there is a need to ensure that independence does not lead to isolation, irrelevance or complete autonomy. A law commission is, after all, a public institution funded by public resources. It is therefore legitimate to expect a balance between independence and accountability[191].
A law commission must also recognise Parliamentary priorities when setting its own agenda or making recommendations. But this appreciation of political reality can lead to an inherent dilemma. If the agency is not sufficiently assertive and does not conduct in-depth research and propose innovative proposals, it is not fulfilling its mandate. But if it moves too far from what is acceptable to Parliament, its proposals will be ignored. If an agency wants to see its recommendations brought forward in the form of legislative initiatives, it must therefore ensure that it has the support of the executive branch of government or at least that its proposals minimise the level of controversy.
The government of the former British colony of Hong Kong resolved this problem by including members of the executive on its law commission. The commission examined subjects that were referred to it by the Attorney General and the Chief Justice. Both the Attorney General and the Chief Justice were also members of the commission. Thus, the commission essentially reported to itself, with the result that there was a high probability of executive approval of its recommendations. While such an arrangement has undoubted advantages for the effectiveness of the law reform process, the danger of a perceived lack of objectivity is one against which the commission must constantly guard itself[192].
Canada's first federal Law Reform Commission, which existed from 1971 to 1992, reported to Parliament through the Minister of Justice[193]. This arrangement made it clear that the Commission was ultimately accountable to Parliament, which helped foster the agency's independence from the Minister of Justice. At the same time, it was apparent that the Commission also had a special relationship with the Minister, who had the power to comment on Commission recommendations when they were presented to Parliament[194]. When planning the establishment of the second federal law commission, consideration was given to other reporting arrangements, including one in which the commission informed Parliament directly. However, the types of institutions that report directly to Parliament, such as the office of the Auditor General of Canada and the office of the Chief Electoral Officer of Canada, are unlike a law reform commission. They oversee the actions of the government on behalf of the House of Commons, to which the government is responsible. Other institutions, like the National Energy Board, report annually to Parliament through the responsible minister, in this case the Minister of Natural Resources Canada. This reporting relationship, by which ministers table annual reports in Parliament, does not seem to hamper the independence of these organisations. Thus, the current Law Commission of Canada, while an independent law reform agency, submits its reports to Parliament through the Minister of Justice. The Minister is also bound to respond to the Commission with respect to any report received from it, and is further obligated to cause a copy of the response to any Commission report to be tabled in both Houses of Parliament. Once tabled, the Minister's response is available for public and Parliamentary scrutiny. This process is a tacit recognition of the principle that the Minister must seriously consider a Commission's report and not simply ignore its conclusions. Furthermore, the process acknowledges that the Commission is an advisory body to Parliament.
The proposed reporting relationship was also the subject of debate during the second reading of the bill[195] to establish a law reform commission in the province of Ontario[196]. The opposition in the Legislature called upon the Attorney General to elaborate on what procedure was contemplated for the new commission. He told the Legislature that he personally favoured reports being made available to the public, but that the final decision on how to proceed should be left open until the personnel of the commission was appointed[197].
There were also debates on the reporting relationship of the Law Commission for England and Wales. At the time of the Commission's formation in 1965, it was believed that the Commission would gain strength and influence from a close association with the Lord Chancellor's Department. There is certainly something to be gained from strong identification with a particular department and close connections with an individual minister. Yet, there are also associated dangers : such relationships tend to erode independence and to arouse suspicions and rivalries elsewhere[198].
A balance between independence and accountability can also be achieved by specifying the types of matters on which reporting should take place. For example, Canada's first Law Reform Commission had a duty to prepare and submit detailed research programs to the Minister of Justice[199]. The Minister, in turn, had the power to request that the Commission give special priority in its research plan to any study that, in the Minister's opinion, was in the public interest[200]. The Commission was bound by such a request. The Commission therefore had the authority to develop its own research programs independently of government, but this ability was accompanied by a duty to inform the Minister of the contents of the program. In this way, programs could not be developed in isolation. Through the power to request priority studies, the Minister was also given an opportunity to influence the Commission's agenda. Only twice did the Minister make a special request for a Commission priority study.
Other, less formal, methods were also used to strike a balance and enhance good working relations with the government. The former Commission regularly consulted with representatives of the federal and provincial governments on work-in-progress. Advance copies of Commission reports were often supplied to federal government officials for their consideration. Nevertheless, the notion of independence could be stretched. For instance, notwithstanding the duty to prepare research plans at regular intervals, the first Commission had no explicit obligation to keep the Department of Justice informed of its current projects. Since the Minister was consequently unaware at times of the Commission's activities, the Minister was not well placed to suggest areas in which the Commission's proposals would be particularly useful.
Relationship with the civil service
The machinery of government must be relied upon to effectively promote those changes that a law reform agency deems are desirable and Parliament wishes to pursue. Persuading the civil service, converting ministers and politicians to innovative ideas of law and justice and obtaining the necessary legislative time to debate reforms are all necessary, but frequently unseen, processes without which the work of advisory bodies can amount to nothing. Progress in law reform cannot be effected without active cooperation from those who prepare, promote and advise on legislative proposals. A law reform body must win the support of the relevant department by demonstrating the value of the proposed reform in terms of that department's own priorities.
Law reformers and the civil service should view each other not as rivals but as partners in the law reform process[201]. Agencies must accept that the civil service will not embrace each and every law reform proposal with unqualified enthusiasm. They must acknowledge that additional consultation and reflection at the bureaucratic level can help to refine and improve ideas and make them more acceptable to political leaders. In the same manner, the civil service must remain open-minded and not dismiss law reform proposals outright without due consideration. It is essential, but generally difficult, for all parties involved to understand that particular views on law reform are to a very large extent influenced by respective positions within the law-making hierarchy. The constraints inherent in every function shape an individual's perspective. A person advocating sweeping and rapid reforms is more likely than not, once becoming Minister of Justice, to soon advise caution[202].
Relationship with the legal profession
For its own sense of well-being and credibility, a law reform commission cannot afford to be closely tied to the legal profession. The profession not only has vested interests, it also is often blind to the need for genuine and responsive change in society and the law[203]. According to Professor Robert Samek[204], the adequacy of a law cannot be evaluated on the basis of purely legal criteria since its legal value does not guarantee its social utility. A law may merely be a cloud that obscures the real problems in society. For the lawyer, there is the constant danger of surveying the social scene from only a narrow legal perspective. Since a lawyer's legal training is so strong, it often automatically results in the imposition of a legal framework — with its special concepts, classifications, procedures and institutions — on the world around. Law reformers must take special care to avoid this pitfall, for otherwise they fall back into the very system that they are mandated to change. Changing simply the letter of the law does not cure social ills. A more encompassing reform of society is often required.
The whole issue of relations with the legal profession is a relevant one in Canada since provincial law foundations play an important role in funding law reform activities. It has sometimes been argued that law reform agencies should maintain a distance from these organisations if their recommendations are to achieve public support and Parliamentary endorsement.
Relationship with the academic world
The involvement of academic lawyers is valuable to the reform of laws[205]. The quality of law reform measures will generally be dictated by the excellence of intellectual thought brought to bear on them. It is not uncommon for a law reform agency to either appoint commissioners with an academic background or hire them on a contractual basis for specific projects. Academics have played a central and full-time role with the Law Commission for England and Wales, the Scottish Law Commission and Canada's two federal commissions.
The importance of academics is also clearly recognised in Canada's provincial law reform agencies. Specific provisions to appoint commissioners who are legal academics are contained in the governing legislation of the Law Reform Commission of Nova Scotia and the Manitoba Law Reform Commission. The governing provisions of the British Columbia Law Institute authorise the deans of law at the two provincial law schools to appoint one member each. In the case of the Alberta Law Reform Institute, one of the three founding partners is the faculty of law at the University of Alberta.
Antonio Lamer, a former president of the Law Reform Commission of Canada, expressly acknowledged the value of academic involvement. He observed that practising lawyers are often case-oriented and their contribution will essentially be of a practical nature, whereas academics by and large take a conceptual approach to law reform issues, thus facilitating the transposition of legal concepts into concrete ideas[206].
