The International Cooperation Group

Publications

LAW REFORM AGENCIES

Gavin Murphy

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].

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].