Law Reform Agencies: Their Role and Effectiveness

Pages:39-53
Author:Commonwealth Secretariat
SUMMARY

Background. The number and types of Law Reform Agencies. Their Growth. Law reform agencies. What they are. What they do. The advantages of independent law reform agencies. Independence. Aspects of Independence. Safeguarding Independence. Volunteer Input. Expertise. Focus. Continuity. Role and effectiveness of law reform agencies in the commonwealth. Standards and Values. Successes. Problems. The... (see full summary)

 
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Executive summary

1. Increasingly, law reform is vital to any legal system and to any nation. Law reform is also a key leader and participant in ensuring the practical application of the Commonwealth's agreed fundamental values. Independent law reform has particularly significant benefits. Independent Law Reform Agencies (LRAs) have been established in many jurisdictions, mostly in the Commonwealth and often with success.

2. Key features of LRAs are their independence, their expertise, their focus on law reform, and their continuity. Other important characteristics are their commitment to full consultation and public participation and their ability to handle new and complex problems, together with their thoroughness, use of outside volunteer experts, openness and accountability. Rightly, they vary greatly according to local circumstances. Especially in smaller jurisdictions, they do not need to be large to be worthwhile.

3. While independent law reform often works well, there is still considerable need for improvement.

* LRAs need to be established in more Commonwealth countries.

* LRAs need high quality personnel, organisational structures, methodology and resources.

* LRAs need projects of real importance, in appropriate numbers and with practicable timetables.

* There needs to be even more co-operative working across the Commonwealth, with special regard to LRAs in smaller jurisdictions.

* Governments need to give full and prompt consideration to LRA recommendations - and to avoid unnecessary delay in any implementation.

4. This paper invites Law Ministers to consider a set of recommendations to help meet these needs.

Law reform agencies: their role and effectiveness

Background

The number and types of Law Reform Agencies

1. A major innovation in the legal world over the last 40 years has been the establishment and development of Law Reform Agencies (LRAs). They have a variety of names such as Law Reform Commission, Law Reform Committee, Law Commission and Law Reform Institute. They have brought whole new features to the legal landscape. They can provide principled and imaginative new law, and can be catalysts of change, responsive to the world around and to the public they serve. Even on a conservative basis, there are some 60 LRAs across the world, with responsibilities to many millions of people. The great majority are in the Commonwealth. The most typical LRA covers a country or state, is substantially autonomous and has authority to review a wide range of areas of law. However, LRAs come in many shapes and sizes. For example:

(a) Some cover countries with populations of well over a hundred million people (for example, India, Pakistan and Bangladesh) while others are for jurisdictions with populations well under a million (for example, British Virgin Islands and the Northern Territory of Australia), and for many more there are populations in between those numbers.

(b) The countries concerned vary greatly in other ways. Their Gross Domestic Product varies immensely. Some are heavily industrialised, and others are much more agricultural. Some have high-density populations, and in others the populations are very scattered.

(c) The LRAs vary greatly in their size and capacity. For example, while one may have one very part-time Commissioner (such as Mauritius), another may have several full-time Commissioners (such as Australia, with 3 full-time and 3 part-time).1 Some have very few staff, and others have large teams.

(d) The responsibilities of LRAs most typically concentrate on straightforward reform of the law but that field can be viewed broadly or narrowly. Some also have other responsibilities - for example, taking measures to harness law and the legal process in the service of the poor and keeping under review the system of judicial administration (India).

(e) While most are in countries with a long common law heritage, others are in countries with very different legal environments and traditions.

(f) While the majority cover a complete country, a significant minority cover a single state, territory or province (for example, in Australia, Canada and Nigeria) with other LRAs often covering the remainder.

(g) While most are statutory, some are not, for example in India, Alberta (Canada) and Northern Ireland.2

(h) LRAs vary greatly in how long they have been established, as demonstrated immediately below.

2. It is clear that, rightly, LRAs may work differently from each other, for all those reasons. In addition, while law reform is the core activity of virtually all LRAs, many are also involved in other work that is closely related to reform, including codification, revision, consolidation and repeals. A generous definition would include, among LRAs, those standing bodies which are established to keep certain limited areas of law under review, for example, criminal law, company law or criminal codification.

Their Growth

3. The number of LRAs has grown considerably over the last 50 years. Some LRAs have been established now for many years: for example, India (55 years, apart from earlier origins since 1834), England and Wales and Scotland (40 years), the Australian Law Reform Commission (30 years) and Sri Lanka and Pakistan (over 25 years). Others have been formed far more recently or are being established. The following are just a few very recent examples:

* Canada (established in 1971) - abolished in 1992 and replaced by the Law Commission of Canada in 1997;

* Malawi established in 1998;

* Northern Ireland - being established, to replace an Advisory Committee; and

* Victoria (Australia) - several different bodies succeeded each other since 1974 - new LRA established in 2001.

4. This growth has been intermittent, has sometimes stalled badly, and has a long way still to go. A few LRAs have been abolished, and others have been replaced: for example Canada, as well as for two Canadian provinces (British Columbia and Nova Scotia) and two Australian States (Tasmania and Victoria).

5. Apart from numerical growth, there seems to be, very broadly and with exceptions, a sense of confidence about independent law reform. Many LRAs are working to capacity, or even beyond it. Several have more, or more important, work than for several years, with government support steady or increasing. There is often bipartisan political support for the work of independent law reform. There are several jurisdictions where steps are currently being taken towards the establishment of a new LRA - for example, Northern Ireland and South Australia. At the same time, there are parts of the Commonwealth where there is little independent law reform or where LRAs are not as active or well supported as they would wish.

The number of Commonwealth countries with and without national LRAs

6. Independent national LRAs exist in approximately half of all Commonwealth countries.

Law reform agencies

What they are

7. LRAs are expert, advisory law reform bodies, independent of government. They are established to review a variety of areas of law and to recommend any changes needed. Their programmes of work need to be agreed with government, and they are normally accountable to government. They have lawyers of considerable ability. They are standing bodies, ready to take on new work quickly.

8. Until an LRA is established, law reform is usually undertaken by government ministries, governmental committees, parliamentary committees and other committees and bodies established for one-off reviews and inquiries constituted especially to consider a particular aspect of the law. This is generally done on a part-time and temporary basis. Such alternative mechanisms are worthwhile but very far from ideal. An LRA is established to overcome the disadvantages of transient bodies.

What they do

9. Some areas of law are relatively standard or core subjects for law reformers. They include substantive law in areas such as criminal law, civil law, family law, commercial law, and public and administrative law. In fact, LRAs frequently review key areas of law which affect large sections of society. The criminal law is clearly central in any country, providing justice as well as seeking to safeguard victims. LRAs are also accustomed to investigating the law which covers all "life events", ranging through birth, marriage, children and death.

10. The following are just a few examples of important recent projects by LRAs:

* a whole justice system (New Zealand, South Africa and Western Australia);

* sentencing powers (Uganda, Nigeria and South Africa, and New South Wales and Tasmania in Australia);

* transformative justice (Canada);

* security legislation (South Africa);

* anti-terrorism legislation (India and Pakistan);

* bribery and corruption (Fiji);

* domestic violence (South Africa);

* electoral laws (Canada and India);

* harmonisation of laws with neighbouring states (Kenya);

* money laundering (South Africa); and

* establishing a family court (Mauritius).

11. Different jurisdictions use different methods for identifying topics for review by LRAs. However, it is important that LRAs have a role in identifying them, often with government. Indeed, in some jurisdictions LRAs take by far the major part in identifying and deciding about their future work. This process is clearly of central importance because it not only dictates the work of the LRA over the period of the project but it is also closely connected with the ultimate "success" of the LRA's work.

12. Suggestions for new reform projects may...

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