Creating a law reform agency
Decision-making framework

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The idea of establishing an agency endowed with a fair degree of independence to review broad areas of the law over a relatively long time is rather widespread in states of British legal tradition. The present document identifies the main considerations to take into account when establishing such an institution, which is often called a law reform commission.

Organization

Mandate

The role of the law reform commission should be as clear as possible. Since such an agency does not have a monopoly on legal improvement, this requires determining where the agency fits within the overall law reform framework of the country. Identifying at the outset the specific contribution expected from the agency can make it easier to deal with many other matters.

Independence

The distinctive element of a law reform agency is that it benefits from a wide degree of independence in the carrying out of its mandate. It is therefore essential to be prepared to accept the practical consequences of such a freedom of action.

Creation

• How will the agency be created:
  • by the country's Constitution?
  • by statute?
  • by some other mean?

Financial resources

• What will be the level of funding of the agency?
• Who will provide the funding?

Governing personnel

• How many governing members (commissioners) will the agency have?
• Will the commissioners be full-time or part-time?
• For how long will commissioners be appointed?
• What will be the procedure for removing commissioners?
• Will it be possible to reappoint commissioners?
• Will commissioners come exclusively from the legal profession?
• Will commissioners be paid?

Research personnel

• Will the agency have a permanent research staff?
• Who will be employing the research staff:
  • the agency itself?
  • a government ministry?
• Will the agency rely entirely or partly on external experts?
• Will there be advisory bodies?

Relationships

• To whom will the agency report?
• How often will it report?
• On what will it report?
• What will be the agency's relationship with elected representatives?
• What will be the agency's relationship with the legal profession?
• What will be the role of academics in the agency's activities?
• What will be the agency's relationship with the civil service?

Functioning

Work program

• Who will set the work program of the agency:
  • the agency itself?
  • the government?
  • a mix of the two?
• Will there be a large-scale research program?
• Will the agency undertake both long-term and short-term projects?
• Will there be expressly stated criteria on the basis of which the agency will select the subjects it will study?
• Who will be consulted in setting the research program?

Work method

Law reform agencies typically operate in four stages: research, development of a discussion paper, consultations, production of a final report. In light of this:

• What will be the process by which the law reform agency carries out its work?

Law reform agencies must also manage their relations with the media.

• What will be the policy of the agency on relations with the media?

Work results

If, on any subject it examines, the agency is normally expected to produce a final report outlining its findings and recommendations:

• What will be the main elements of the report?
• Will draft legislation need to be included in the report?
• Will the government be formally required to indicate how it intends to follow up on the report?
• Will the report be made available to the public, and if so, how?

Performance

Measure

• On the basis of what criteria will the agency's performance be measured?