Improper use of public office

2 - The Establishment of a Law Reform Agency (cont'd)

2.2   Operation

2.2.1   Research programs

Before embarking on a research program, it is necessary to determine the subjects appropriate for law reform and the priority to be accorded them.

Law commissioners cannot go about reforming the law by isolating themselves. They have to be aware of the broad public and political issues of the day. Law does not operate in a vacuum, and reform initiatives must be prepared to look into the future. In this regard, one observer, who directed a small law reform division at the federal Department of Justice following the demise of Canada's first Commission, held that the Commission had lost touch with the important legal issues of the 1990s[207].

The degree of independence a law reform agency has in determining its own research program can affect the range of its activity. If, for example, a commission has both its own program and an obligation to carry out projects on reference from the government, it can become rapidly overwhelmed unless safeguards are in place. This is the dual mandate of the British Commissions, the federal Law Commission of Canada and the New Zealand Law Commission. References in Canada only occur after consultation with the Commission, and the government takes into consideration the latter's workload and available resources before any reference is made.

As already noted, opinion is divided on whether commissions should undertake extensive programs or engage in more modest projects. Large programs were strongly rejected by a former chair of the Law Commission for England and Wales because of the length of time needed to produce concrete results[208]. Another British observer suggested that there is little point in developing an extensive program and that a law commission should therefore limit itself to dealing with smaller issues. Professor S. M. Cretney, himself a former member of the Law Commission for England and Wales, is of the view that the government no longer has the will to accept large-scale reform proposals from a body over which it has no direct control. Even if it had the will, the legislative machinery is inadequate to handle the commission's proposals[209].

Regardless of the scope of a commission's mandate, preparation of some type of work plan should be encouraged. A work plan contributes to efficiency. When approved by the government, a plan also demonstrates that it has official support for the study of specific subject matters, making it easier for the commission to go further into the review of controversial issues than would otherwise likely be the case. Finally, a work plan makes it easier for a commission to concentrate on its priorities and avoid side issues.

In its original research program, the first Law Reform Commission of Canada tackled major legal and philosophical issues that required massive amounts of study. The result of this undertaking was that the Commission initially had little to show for its efforts. This outcome did not sit well with the Auditor General of Canada. In his report to the House of Commons on the fiscal year ending 31 March 1985, he suggested this situation had resulted in "insufficient emphasis on economy and efficiency"[210]. But once the Commission's work had progressed, the fruits of its labour became evident and resulted in more legislative reform during the 1980s. The Auditor General pointed out in 1988 that the Commission had acted positively on the 1985 criticism, but that there was still room for improvement[211].

Most governing statutes give wide latitude to what a law commission can examine. But a commission's resources and capacity are not limitless. Before undertaking new projects, the commission must realistically consider its resources and current work schedule.

There are several possible ways to determine a law reform agency's priorities. Among other things, a law commission's action plan can be dictated by the government, defined jointly by the commission and the government or determined freely by the commission itself. Allowing the government to have a say in a law reform agency's agenda can help to maintain good working relations between the two groups, which is essential for the future existence of the agency. If the government appreciates and supports the work of the agency, there is the possibility of adequate and steady funding, other support assistance and serious consideration of its recommendations for reform. Projects determined by government reference can enhance a law reform agency's credibility. But there are also downsides[212].

A law reform commission may also want to invite suggestions for projects from the community at large. This openness offers the potential for a wide range of proposals and also reinforces the notion that the law should be responsive to the people it serves. Advisory councils, such as the one currently in place with the Law Commission of Canada, are another source of ideas and public input. Such a council can include individuals from a wide range of professions who can offer advice and direction to the commission. Other sources of ideas for program studies include the commission's own staff. But there may be a potential drawback to consulting with this specialised group. It is internalised, narrowly focused and depends upon a small number of individuals who are likely to share the same thoughts on law reform matters and on the direction the commission should take to address them.

To provide realistic guidance on program selection, the establishment of guidelines will permit a systematic, consistent and objective approach[213]. At a consultation held after the demise of the Law Reform Commission of Canada, some observers expressed the view that the Commission's agenda should have been set in a more democratic manner. It should also have been a negotiated process[214]. With these criticisms in mind, the current Law Commission of Canada established criteria for the selection of its projects, and the manner in which the Commission is to pursue its mission is now determined by a set of clearly defined guiding principles[215].

Responsibility for defining the program areas of the two Commissions in the United Kingdom is shared by the Commissions themselves and the Lord Chancellor and Secretary of State in Scotland. Under section 3(1) of the Law Commissions Act 1965, the Commissions are required to keep the whole of the law under review with regard to its systematic development and reform and, for that purpose, to prepare and submit to the Lord Chancellor programs for the examination of different branches of the law. The Lord Chancellor must approve the proposed programs before the Commission can initiate work. The Lord Chancellor must also lay before Parliament any approved program. The Commission has the right to propose a program, but it is for the government, through the Lord Chancellor, to decide if the Commission is permitted to proceed. This procedure has merit, according to former Law Reform Commission of Canada president Antonio Lamer. He notes that ministerial approval makes sense as ministers can help decide priorities and "are elected and accountable to the people"[216].

The New Zealand Law Commission's work program is approved by the Minister of Justice at the beginning of the government's fiscal year, which starts 1 July. Nevertheless, the final program is flexible, and priorities may change and deadlines be altered during the course of the year. Projects for consideration can be referred to the Commission by the Minister, or they can be initiated by the Commission itself.

2.2.2   Method of work

Commonwealth law reform agencies generally operate along similar lines, although there are no set rules on the documents produced or the procedure followed. The initial work method is consistent with that highlighted by a former chair of the New York Law Revision Committee forty years ago[217]. The key elements of the standard process are as follows.

Research

When carrying out legal reform studies, the agency's personnel or outside researchers initially analyse the present situation domestically. They conduct preliminary research to determine if the same problem has been dealt with in a comparable state. They also examine any relevant legislation, court decisions, academic literature and other sources of specialised information. Sometimes empirical research or surveys will be undertaken. There may be discussions with specialists or with interested members of the public. Complementary fields of study such as economics, sociology, political science and other empirical research must also be considered. The application and inclusion of these disciplines will be helpful in improving the overall analysis and ultimate recommendations for reform.

Discussion or working papers

Initial comments and further data are then compiled into a discussion or working paper. Once a first draft of the paper has been completed, all commissioners will review it to ensure general agreement on basic principles and conclusions. After revision and preparation of the final version of the paper, commissioners review it again and, if acceptable, it is published. This paper will describe the present law and its perceived shortcomings, and usually contain a number of possible options for reform. This discussion or working paper will indicate the commission's preliminary preferred choices and seek comment through consultation. It should therefore be written in a manner appropriate for the target audience. For example, it should not be overly complex in its approach, nor should it include an excessive amount of legal language.

Consultation

A law commission must have an effective consultation process to allow all interested parties to express their views on the reform process. Consultations should embrace all those who have a genuine interest in the subject. In fields such as family law and juvenile justice, direct consultation with the public can produce valuable results. On the other hand, the response of the general public to proposed reforms in highly technical areas of the law, such as competition law, could be less illuminating. Nevertheless, a commission should not leave itself open to criticism that it formulated its recommendations without adequately consulting relevant sectors of society.

The necessity for consultation arises from the very nature of a law reform agency, which is neither a law-making authority nor a judicial body appointed to resolve legal issues. Its role is to provide advice and recommendations to the legislature on what the law should be and how it can better reflect society's values. Legislatures legitimately expect law commissions to provide not only reform recommendations but also a thorough analysis of all the evidence, both positive and negative, on the subject under consideration. Consultation will help the commission broaden the scope of its work. This will, in turn, help the legislature determine if the commission's recommendations have been thoroughly evaluated and are appropriate for implementation.

Yet in some quarters the importance of consultation is the subject of dissent. While the prevailing view is that there can never be too much consultation, doubts about its usefulness have also been expressed. A former commissioner of the Law Commission for England and Wales has suggested that consultation may be more for show than actually valuable in terms of results[218]. Peter North argues that the process rarely achieves its objectives, adding that formal consultation is time consuming and its benefits questionable. At least one third of the time required for taking a law reform measure through from start to finish at the Law Commission for England and Wales was devoted to consultation. While the period can be shortened and fewer persons consulted, there is a price to pay — those not consulted will probably scorn the proposals as ill conceived. North claimed there is simply too much consultation, with the result that it can actually be counter-productive[219]. Less effective consultation by law reform agencies and general consultation fatigue may be the unintended results of the trend to wider government consultation on a range of other issues[220].

Analysis of responses and further research

The comments gathered through the consultation process are then analysed. Further revisions and research may be undertaken to ensure that the report reflects, or at least has considered, the relevant observations received. At this stage, an options paper may also be released, setting out any suggested improvements that emerge from the discussion paper review and consultation process.

Internal policy paper

One commentator has suggested that it may be useful to have an intermediate stage before work begins on preparing the final report[221]. An internal policy paper at this middle stage would highlight the results of the consultation process and incorporate any additional proposals resulting from the consultation. This paper would set out the basic conclusions and recommendations that would be included in the final report. This additional step would prevent time, effort and scarce resources being spent on drafting a final report, only to find that the commission does not agree with its conclusions.

An internal policy paper would remain strictly confidential and would not be circulated outside the commission. The paper would set out the framework of the proposed reforms without attempting to include all the details and reasoning behind each recommendation. Rather, the policy paper would highlight the overall approach to be taken in the final report and essentially serve as a summary of that document.

Final report[222]

Once the final report has been drafted and approved by all commissioners, it is submitted to Parliament through the designated minister for consideration[223]. The value of the final report will depend to a large extent on the quality of research and appropriateness of its recommendations.

2.2.3   Form of report

A law reform agency must do more than simply state in its final report what the law should be. If its conclusions are to receive serious consideration, the agency must ensure that its findings are supported with comprehensive, compelling and rational arguments. The agency has to show that it has consulted widely, considered alternatives and determined on the basis of logic and sensitivity what the best possible solution is to the matter under review. This level of thoroughness means that law reform reports by their very nature are likely to be lengthy. It is therefore necessary that they be drafted in plain, uncomplicated and easy-to-read language, employing a minimal amount of legal language and legal citations. If a law reform agency's final report is to achieve an improvement in the law, it must be intelligible to the general public. Otherwise the entire process is hardly effective.

The final report can contain draft legislation, which may encourage speedy adoption of the proposed reform in Parliament. However, the inclusion of this material could also have an unfavourable effect on the legislative process. As with virtually all things relating to the functions of a law reform agency, there are two schools of thought on the utility of appending draft legislation to final reports. In the United Kingdom, it is usual for the law commissions to present their recommendations in the form of draft Bills or clauses[224], even though they are not required to do so by the Act that created them. Draft legislation is also often appended to New Zealand Law Commission reports. In Canada, on the other hand, no draft legislation is attached to the reports of the current Law Commission and, in the days of the former Law Reform Commission of Canada, it was included only on occasion. Current procedure among Canada's provincial agencies varies. For example, a June 2001 report from the Saskatchewan Law Reform Commission concerning the division and sale of land by co-owners contains a proposed Act, but draft legislation has not been included in recent reports of the Law Reform Commission of Nova Scotia. Draft legislation used to be appended to Law Reform Commission of Nova Scotia reports, and one commissioner believes that the old practice should be reinstated[225].

While the final form of a Commission's report in the United Kingdom will include proposed legislation reflecting the recommended changes in the law, this procedure has not escaped criticism[226]. The inclusion of draft legislation may stem from the fact that the Commission has several legislative drafters on its staff seconded from the Parliamentary Counsel Office. As Parliamentary Counsel are responsible for drafting all government legislation, the feeling may be that they can also be effectively deployed for the same purpose at the Commission[227].

The proponents of this approach see professional legislative drafters playing an essential role at the commission[228]. Legislative drafters can provide the knowledge and expertise needed to ensure the soundness of the proposed changes in the law and the quality of thinking behind them. These specialist skills also offer another advantage. When legislative drafters prepare a proposed bill to accompany a law commission report, the report is able to offer the added convenience and efficiency of providing ready-made legislation to those responsible for legislative initiatives[229]. Indeed, it has even been suggested that the absence of drafters on a commission's team would seriously slow down the pace of reform[230]. Gilles Létourneau, a former president of the Law Reform Commission of Canada, also endorsed the view that a law reform agency should append draft legislation to its reports[231].

An equally valid case can also be made for not including the preparation of a draft bill among the responsibilities of a law commission. The main argument against presenting law reform proposals in the form of draft legislation is that the practice is likely to shorten debate on the issue under review. Draft legislation prepared by the law commission may actually lead to the commission usurping Parliament's legitimate role in developing and approving the law. While the inclusion of draft legislation may help to explain the law to the public and provide greater transparency in the law-making process, it can also run the risk of instituting reform without thorough consideration and debate by the legislature. This view is held by a former secretary of the Law Reform Commission of Canada, who said it is not the role of a commission to draft legislation. It should give direction and explain the law, but drafting should be left to experts in the legislative drafting field after all matters of policy have been thoroughly considered[232].

It is instructive to note the evolution of the thinking of the first president of the Law Reform Commission of Canada, Patrick Hartt, on this particular matter. In 1971, in one of the first speeches he made after his appointment, Hartt unequivocally stated that he considered it of vital importance that any reports of the new agency include draft legislation. He was of the view that the measure of success of the Commission's work would be reflected in legislation that was adopted by Parliament with a minimum of amendment. Unless the Commission could formulate its recommendations in the form of proposed legislative action, he was concerned that many valuable suggestions would never become law[233]. Two years later, Hartt held entirely different views. As regards criminal law, he had reached the conclusion that the Commission would perform a more useful role by producing carefully researched and clearly written reflections on fundamental issues, and by placing a greater emphasis on experimentation and public education. He went so far as to suggest that the inclusion of draft legislation in the Commission's reports was potentially counterproductive[234].

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