Law reform agencies

2 - The Establishment of a Law Reform Agency

A number of different and sometimes even conflicting considerations must be taken into account when establishing a law reform agency. It seems useful to identify and assess these matters.

2.1   Organisation

2.1.1   Creation

Within the Commonwealth, law reform bodies are usually created by a specific law. This statute normally determines such issues as the commission's mandate, powers and duties, reporting procedures and general organisational matters. A law commission could also conceivably be provided for in a country's Constitution. The latter approach might be appropriate in the case of an ongoing revision and restructuring of the law, since a constitutionally guaranteed agency would lend credibility to the reform process.

Examples of statutorily created bodies are the two British Commissions, the former and current Canadian federal Commissions, most of Canada's provincial commissions and the New Zealand Law Commission. The New Zealand Law Commission was created by statute in 1985[122], although the country established a Law Revision Committee as early as 1937. The Commission is an independent organisation that examines areas of the law in need of updating, reform or development[123]. It also helps government departments and agencies with legal review and is often called upon to assist Parliamentary select committees[124].

There are alternatives to creation by specific legislation. Law reform agencies in Northern Ireland and India were not established by statute. In Canada, the province of Alberta's Institute of Law Research and Reform was created in 1967 by agreement between the University of Alberta, the Law Society of Alberta and the provincial government. The Institute has always been a university-based undertaking. Other approaches include the New Brunswick example of locating law reform activities within the provincial Department of Justice ; incorporation under the provincial Society Act, as is the case with the British Columbia Law Institute ; and dealing with law reform matters as the need arises, as is done in Canada's three territories. Nevertheless, there seems to be general agreement that a law commission should normally be a permanent institution and preferably one created by statute[125]. According to a former president of the Law Reform Commission of Canada, the creation of a law reform agency by statute clearly demonstrates the importance that Parliament attaches to the reform process and highlights the independence accorded to the agency. Furthermore, a law reform body created by statute becomes more difficult to abolish[126].

2.1.2   Financial resources

The level of funding provided to a law reform body naturally affects its overall activities. In 2002, the Law Commission for England and Wales had a staff of 19 lawyers, apart from the commissioners and the legislative drafters from the Parliamentary Counsel Office. The cost of the Commission was £4.5 million[127] (approximately $7.5 million USD as of September 2003). The government funds the totality of its operations. The Law Commission of Canada receives all its funding from the federal government in Ottawa. However, its financial resources are more limited than those of the former Law Reform Commission of Canada. While the former Commission had a staff of 45 and a budget allocation of nearly $5.5 million Canadian (about $4 million USD) in the 1983-1984 financial year, the current Commission had a staff of 12 and a $3.2 million ($2.4 million USD) budget for the 2002-2003 financial year.

The New Zealand Law Commission is entirely funded by the central government. The Commission had a total staff of about 25 and a budget of approximately 4 million New Zealand dollars (about $2.4 million USD) in 2002[128]. In Australia, the federal Parliament also fully funds the Australian Law Reform Commission. Revenues from the government for 2001-2002 were 3.1 million Australian dollars (approximately $2.1 million USD)[129].

Government funding is not the sole basis of support at the provincial level in Canada. With provincial government assistance greatly reduced, other sources of funding have been identified. Law foundations, which receive the interest income earned on money held in lawyers' trust accounts, have been particularly active in funding provincial law reform activities. As of December 2001, Alberta and British Columbia received 61 percent and 65 percent respectively of their financial resources from their provincial law foundations. Half of Saskatchewan's funding and 37 percent of Manitoba's funding come from their law foundations. The Law Reform Commission of Nova Scotia received all of its funding from the provincial law foundation after the provincial government cut its support on 1 April 2001. During fiscal year 2001-2002, the Commission received $250,000 ($185,000 USD) from the provincial law foundation. However, the provincial government started providing again financial support in 2004. The British Columbia Law Institute also received no direct provincial government funding until 2003, although the province had provided the Institute with funds in the form of project grants[130]. In an effort to be partially self-sufficient, the Institute has carried out various fundraising activities and charges a fee for most of its reports. Although fundraising activities have generally been a success, the Institute does not expect them to generate more than about $8,500 ($6,300 USD) a year. The sale of reports realised $3,400 ($2,500 USD) during the Institute's 2002-2003 fiscal year[131]. Aside from the law foundation, other sources of funding have included the Canadian Bar Association, the Law Society of British Columbia and a city bar association.

There is a finite limit to the amount of funding that any government will provide to a law commission. One of the more innovative approaches that was suggested during the creation of Canada's second law commission was that the commission see itself less as the main organisation doing law reform work and more as a partner in a network of individuals and organisations cooperating to accomplish complementary law reform objectives. The role played by the commission would then depend on what is needed, given the strengths and weaknesses of other partners within particular alliances. It can be argued that this approach has several benefits. Partnering requires less funding from the commission itself to accomplish results. It can also lead to more diverse, persuasive and learned research. The Law Commission of Canada has produced two joint publications, one in partnership with the National Association of Friendship Centres[132] and the other a joint effort of the Commission, the Canadian Association of Law Teachers, the Canadian Law and Society Association and the Council of Canadian Law Deans[133]. But critics of this approach would contend that partnering hampers the Commission's capacity to conduct comprehensive research.

Through the allocation of financial resources, the government can exert a significant influence on a law commission's activities. The Law Commission for England and Wales has no control over its budget. Furthermore, it is the government that decides the seniority of the staff assigned to the Commission and also the total number of staff. In the mid-1980s, it was decided that lawyers of junior rank should replace the senior government lawyers who headed the Commission's four teams. The resulting loss of expertise to the Commission was considerable, but it was minimised by the allocation of funds to hire up to an additional 15 research assistants, as well as by the ability to employ external consultants on a casual basis. The additional assistants, while they provide a useful research function, normally come to the Commission for only a year after university study. This short-term approach has created problems with continuity in the Commission's work where projects normally span several years[134].

Some law reform bodies are looking to other avenues for assistance. For example, the British Columbia Law Institute is designated as a charitable organisation and supporters receive tax credits for donations. The Institute also sells its publications. Nevertheless, the most common source for funding outside governments in Canada is currently the provincial law foundations.

The province of Manitoba provides a good illustration of the role law foundations play in funding law reform activities. The Law Reform Commission Act of Manitoba did not initially allow the Commission to receive funds from any source other than the provincial government. The Manitoba Commission's funding was appropriated by the provincial government out of general revenues and approved by the legislature during debate on the provincial spending estimates. An amount was provided for the operating costs, and an additional sum was allocated for salaries. But this arrangement changed in 1986 with the establishment of the Manitoba Law Foundation. The foundation was created to promote legal education, legal research, legal aid services, law reform and the development and maintenance of law libraries in the province. The legislation creating the foundation provided that the Commission would receive a grant of $100,000 for the three years ending 31 March 1989. But no benefit to the Commission materialised during this time, notwithstanding assurances from the government. The foundation paid the grant not to the Commission but to the government because of the requirement that the Commission only receive funds from the provincial government. Rather than passing all or part of these funds through to the Commission, the government retained them and reduced its contribution to the Commission by the corresponding $100,000. As a result, the Commission received no additional funding and the government saved $100,000[135]. A law reform bill before the provincial legislature then called for extending the funding of the Commission to institutions other than the provincial government. But before action could be taken, the government announced in December 1987 that it intended to abolish the Commission. As noted earlier, a new government in April 1988 re-established the Commission, but it was announced in 1997 that the Commission would be eliminated. Public outcry forced the government to back down, and the Commission functions today with the help of grants from the provincial Department of Justice and the Manitoba Law Foundation.

At the other extreme, as one writer has noted, it is possible to cripple a law reform agency by giving it too much money[136]. Excessive resources could easily force a law commission to focus on high-profile activities that either drag on indefinitely or seldom come to fruition, thus preventing the commission from carrying out a structured process of the inquiry, consultation, reflection and recommendation that are the true hallmarks of effective law reform.

A former secretary of the Law Reform Commission of Canada said that the Commission was adequately funded while he was there. The Commission lived within its budgetary means and did not have a large staff, relying on outside consultants when necessary[137]. Two former presidents of the Law Reform Commission of Canada also agreed that the budget of the Commission was sufficient during their tenure[138].

Law Reform Commission of Canada
Budget in Canadian dollars
1972-1973 $997,000
1973-1974  $1,587,000
1974-1975 $1,795,000
1975-1976 $1,863,000
1976-1977 $1,852,000
1977-1978 $2,408,000
1978-1979 $2,575,000
1979-1980 $2,369,000
1980-1981 $2,757,000
1981-1982 $3,302,000
1982-1983 $4,734,000
1983-1984 $5,417,000
1984-1985 $5,013,000
1985-1986 $5,049,000
1986-1987 $4,799,000
1987-1988 $4,691,000
1988-1989 $4,717,000
1989-1990 $4,796,000
1990-1991 $4,841,000
1991-1992 $4,922,000
1992-1993 $4,822,000

2.1.3   Membership

In establishing a law reform agency, a number of decisions must also be made regarding the personnel of the body.

Governing personnel
Number of members

Deciding on the optimal number of commissioners necessarily involves compromises among a number of objectives. The executive must represent diversified interests, legal or otherwise, but at the same time it must not be too large or unwieldy. The volume of work that is to be undertaken by the commissioners must also be considered. A small group of about three to seven members appears to be ideal, and this membership level is the general standard in Commonwealth countries[139].

Full-time or part-time appointments

Historically, both full-time and part-time commissioners have been selected, and the matter is often determined by the legislation that establishes a commission. All members of the Law Commission for England and Wales are appointed on a full-time basis. A former president of the Law Reform Commission of Canada feels that a law reform agency should only include full-time members. He suggests that part-time members are often busy with other matters, and valuable time can be lost helping them catch up with the work done by others. Furthermore, part-time members cannot benefit from the collegial atmosphere created by working on law reform issues on a full-time basis[140]. Nevertheless, the current Law Commission of Canada has only one full-time member, its president, and the other four commissioners are part-time appointees. By way of comparison, in the province of Nova Scotia all commissioners serve on a part-time basis since budgetary restraints make full-time appointments impracticable[141].

The New Zealand Law Commission includes a mix of full- and part-time commissioners. The Commission consists of no less than three or more than six commissioners, appointed by New Zealand's Governor General on the recommendation of the Minister of Justice. One commissioner must be a judge or retired judge, or a lawyer of not less than seven years' practice, who is appointed president of the Commission[142]. The president is the Commission's chief executive officer and supervises its work. Not all members of the Commission are legally trained, and as of 31 March 2002 the Commission consisted of three full-time and three part-time members[143]. Every commissioner holds office for up to five years and is eligible for reappointment.

Strict eligibility requirements for commissioners were included in the legislation establishing Canada's first Law Reform Commission. The Act required four of the six commissioners to serve full-time. At least three of the four full-time members, including the chair and vice-chair, and one part-time member had to be senior members of the legal profession[144]. Of the three full-time and one part-time members having a legal background, the chair or vice chair and at least one other member had to be from the province of Quebec[145]. Amendments introduced in 1975 established five full-time commissioners only[146]. The chair, the vice-chair and at least one other commissioner had to have extensive legal backgrounds. The chair or vice-chair and at least one of the other commissioners from the legal profession had to come from Quebec. The chair and vice-chair were renamed president and vice-president respectively in 1981. Commissioners were eligible for reappointment.

Opinion varies widely among Commonwealth agencies on the question of whether commissioners should be full-time or part-time. But it seems reasonable to suggest that, other things being equal, an agency with full-time members, or at least some full-time representation, is likely to be a more efficient instrument for law reform than one that depends exclusively on part-time representation[147]. Two former presidents of the Law Reform Commission of Canada are of the view that a law reform body's membership should only consist of legally trained full-time members[148]. Former president Antonio Lamer also holds that the chair should be a superior court judge on leave from judicial duties. This requirement will guarantee that the law reform body will not be afraid to make recommendations that may be critical of the government.

Two alternatives were frequently suggested to Canadian officials during the planning of the new commission that was eventually established on 1 July 1997 : a larger and more representative executive, composed of a combination of full-time and part-time members ; or a smaller executive supported by an expanded advisory group or by project-specific groups. It would not have been efficient to create both an expanded commission and an advisory group, as each could very well have ended up duplicating the work of the other. Moreover, the cost would also have been prohibitive. In the end, it was decided to have a five-member commission, along with a 24-person volunteer advisory council.

Duration of appointments

While the issue of full - or part-time membership should be assessed on a case-by-case basis, appointments should be restricted in duration but long enough to enable commissioners to make a significant contribution to the agency's work.

As the Lord Chancellor's Department in the United Kingdom was apparently unconvinced of the need for a separate law reform body, and anxious to retain control over the law reform process, it ensured that appointments to the Commission were of a temporary nature[149]. Under the Law Commissions Act 1965, the department is vested with the appointment of the chair and other commissioners. The post of commissioner was confined by the 1965 legislation to university teachers, practising lawyers or judges. The chair is generally a member of the High Court who holds the agency post on secondment. After serving five or six years at the Commission, the chair returns to the judiciary and often becomes Lord Justice of Appeal. The four other commissioners are frequently on secondment from a university.

A former president of the Law Reform Commission of Canada suggests that the position of president should not be renewable, thereby ensuring that this person remains impartial throughout the appointment period. He also notes that this procedure would ensure that there is no perceived indebtedness to the government or expectation of having one's term renewed[150].

Background of members

In the early days of law reform in Canada some observers felt that agencies should consist exclusively of legally trained members, but this view was already coming into question by the time the Law Reform Commission of Canada was created in the 1970s[151]. Many now feel that the legal profession does not have all the answers when it comes to legal reform and that, in some cases, non-legal responses may be just as effective in handling certain contemporary problems. It is often said that the inclusion of commissioners without a legal background will help bring balance to the reform process. Reflecting this view, the second Law Commission of Canada provides that, in recommending persons for appointment as commissioners, the Minister of Justice shall not restrict consideration to members of the legal community. Collectively, the commissioners should reflect the socio-economic and cultural diversity of the country, represent various disciplines and embody the country's common law and civil law legal heritage[152]. Likewise, for example, the Acts governing the Manitoba Law Reform Commission and the Law Reform Commission of Nova Scotia also make specific reference to the possibility of non-legal appointments. A recommendation was made in 2000 that New Zealand follow this multidisciplinary approach[153], and its Commission now includes non-legal representation.

The appointment of non-legal commissioners to law reform agencies in Canada is considered important to achieving a good balance of views, and this approach was endorsed in 1974 by J. N. Lyon of the faculty of law at McGill University[154]. Lyon considered that commitment to the myth of the expert was a costly error in the development of law reform in Canada. According to him, one can challenge as nonsense the notion that law professors, judges and senior lawyers are experts in matters of law reform. While no one doubts their expertise in legal research and analysis, these attributes relate to the written body of laws, which is just one component of the legal process. To force all reform activities into a model developed by this group of legal experts is to ensure failure by neglecting systematic development and treatment of the balance of the reform process[155]. Lyon added that lawyers are generally a group with strongly conditioned attitudes for avoiding any matter that is controversial or raises strong value conflicts in the community[156]. Contentious issues are designated as policy matters not appropriate for legal treatment. Rather, lawyers are concerned with law and legal matters only. They do not take positions on fundamental value questions, nor do they speculate. Lawyers draw on expertise in an objective area of decision where logic applied to settled doctrine produces legal answers. The truth, in Lyon's view, is that when it comes to law reform, there are no experts. There are various complementary skills and experience that are necessary to the process, and the critical question is how these attributes should be fused to get the best results.

These sentiments are echoed by Arleen Paris, a retired medical laboratory technologist appointed to the Law Reform Commission of Nova Scotia in January 2002. She notes that a law reform agency should represent a cross-section of society, and she feels that, as a non-lawyer, she is able to bring a different perspective to the law reform process. Commissioner Paris cited the example of a January 2003 Commission discussion paper on reform of the Mechanics' Lien Act[157], where her input resulted in the elimination of overly complex legal language, thus making the document more accessible to the general public[158].

On the other hand, the exclusive appointment of commissioners with a legal background finds favour in the United Kingdom. The five full-time commissioners of the Law Commission for England and Wales must be legally trained, while all five members of the Scottish Law Commission also come from the legal community. But not all Scottish commissioners serve on a full-time basis. The United Kingdom's approach of appointing commissioners solely with a legal background has developed from history, tradition and lessons learned from the failures of previous bodies. Whether it is the best approach for England or anywhere else is a question that is still not settled[159]. Nevertheless, Lord Scarman, the first chair of the Law Commission for England and Wales, strongly endorsed the United Kingdom approach. He noted that the day-to-day work of a law reform agency consists largely of research and drafting. Laypersons unfamiliar with the law would have to stand on the sidelines, their contribution to reform coming at the stage when initial research has provided a description of the law as it is and a provisional identification of the matters requiring reform. At this stage, they could play a vital role and may see problems not evident to lawyers. But they were not to have a part in the initial stages of research and development[160]. Other Law Lords took the opposite view when the British Commissions were created[161].

In the final analysis, of fundamental importance is the proper mix of talent and skill necessary to ensure a positive law reform environment. As the Attorney General of Canada remarked in 1955, "No legislative body is going to act upon the suggestion of any research body unless the credentials of that body for disinterestedness, competence and public interest are beyond question."[162] According to a British observer, law commissioners should have the following attributes : an inquiring mind ; awareness of the possible consequences of any proposed changes in the law ; and possession of a sound understanding of the attitudes of the society they serve[163].

Nevertheless, the intense debate over the background of appointees may actually be unnecessary. The nature of the agency's structure and mandate, as well as the subject areas it is to examine, should be the essential criteria for consideration when selecting members. If an agency is to review matters having broad social implications, it could be appropriate to appoint commissioners with a non-legal background. If, on the other hand, an agency is to study issues that are more closely related to highly specialised aspects of the law, it might be mistaken to rely exclusively on non-legal representation.

Remuneration of members

As for remuneration, an English commentator suggested, almost half a century ago, that members of the agency should be volunteers, while staff should be salaried[164]. The current Law Commission of Canada reflects this approach to some extent. The Commission's only full-time paid commissioner is its president, and there are four part-time members who are paid on a daily basis only. The advisory council and study panel members are all volunteers. The Commission's staff are members of the civil service.

The approach to compensation will of course be influenced by a number of factors. Nevertheless, it seems doubtful that a law reform agency should be left to rely exclusively on volunteer work. Any expectation that an agency could function effectively on the basis of goodwill alone is, in fact, inconsistent with the fundamental reasoning behind the creation of a specialised reform body. For law reform to be taken seriously, it should be conducted by individuals who can devote the totality of their experience and knowledge to the work at hand. This expertise usually comes with a price. If a country expects its commission to produce persuasive reform recommendations, it should also consider the allocation of sufficient financial resources to help attract leading intellectuals and jurists to the cause.

Research personnel

Those designing a law reform agency must also consider how many researchers are needed on staff. It is important to have a dedicated core of full-time personnel to ensure continuity, coordination and quality in the work of the commission. A permanent staff can also maintain presence in the community, as well as assist in overall public legal education through the provision of information in a way that is not possible with part-time consultants.

Full-time staff may also be needed to carry out consultations and to forge links with other organisations. The degree to which a commission will rely on full-time staff or external contractors should also vary according to the availability of the latter and to the nature of the projects the commission undertakes. There need not be full-time experts on a law reform body's staff. Experts could be engaged to conduct research or write papers only when necessary. In the Canadian context, one observer considers that having a large team of permanent employees is counterproductive and urges a greater reliance on experts for specific matters[165].

As a measure of economy in 1984, four of the five senior positions of assistant solicitor at the Law Commission for England and Wales were abolished with a view to reliance on outside experts. This move was seen by some as detrimental to the status of the Commission and an indication of an intention on the part of the Lord Chancellor's Department to use the Commission more for its own short-term purposes[166]. Even now, jurists of high quality are brought into the Commission, but are not really capable of identifying with the organisation for more than a short period of time. At least one commentator believes that the effectiveness of the Commission would be strengthened if it could be seen to offer within itself a permanent career ladder for able lawyers[167].

Personnel with the skills and creativity required to produce meaningful law reform proposals are often hard to find. Not every lawyer is keen on research work, and in many countries in transition there is a shortage of qualified lawyers. Nevertheless, a mix of permanent and outside research staff is the ideal situation, according to a former secretary of the Law Reform Commission of Canada. But he cautioned that not having the external staff regularly on site could be detrimental to the agency's work. Since the participation of outside staff is generally more limited, this situation may result in greater reliance on the efforts of the permanent staff[168].

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].

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