International Co-operation in Law Reform
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The Sri Lanka Law Commission has many significant achievements.
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“Reform, reform – aren’t things bad enough already?
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It is a great honour to have been invited to contribute to this journal which has been specially commissioned to commemorate the Sri Lanka Law Commission’s Twenty Fifth Anniversary. The Sri Lanka Law Commission has many significant achievements. It is also well-known in international law reform circles – which may make the subject of this article particularly relevant.
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A major feature of the legal world over the last 40 years has been the establishment and development of Law Reform Agencies. Even on a conservative basis, there are 60 Law Reform Agencies across the world. The term “Law Reform Agency” is used because it aptly describes the bodies covered. “Law Reform Commission” is perhaps the best and easily the most common term, as it indicates three key elements, ie law, reform and a process by which the body proposes or is requested, required or “commissioned” to review certain areas of law. “Law Commission” (although a term close to the heart of the writer!) is in fact incomplete and even misleading. Other titles in use include “Law Reform Committee” and “Law Development Commission”.
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Perhaps the most typical LRA2 covers a country or state3, 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:-
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(a) Some cover countries with populations of well over a hundred million people,4 while others are for countries with populations well under a million5 and many more are for countries with populations in between those numbers.
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* This article is written in the author’s private capacity and reflects only his personal views.
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1 An early 20th Century judge, when asked about proposals for law reform.
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2 “LRAs”, ie Law Reform Agencies, is used as an abbreviation in this article for Law Reform Commissions and other permanent Law Reform Agencies.
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4 Eg India, Indonesia, Pakistan and Bangladesh.
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5 Eg British Virgin Islands, Tonga, Northern Territory in Australia, and Solomon Islands.
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(b) The countries concerned vary greatly in other ways. Some are heavily industrialised, and others are much more agricultural. Some have high-density populations, and in others the populations are very scattered.
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(c) The LRAs vary greatly in their size and capacity. For example, while one may have one part-time Commissioner, another may have several full-time Commissioners.6 Some have very few staff, and others have large teams.
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(d) Independence from Government, and from all others, is the norm. However, it is rarely complete, perhaps because of financial dependence or because of the accommodation used. There are also some LRAs which have been established as a co-operative venture, for example with an academic institution (eg Alberta and Tasmania).
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(e) The responsibilities of LRAs most typically concentrate on straightforward reform of the law but that field can be viewed broadly or narrowly.7 Some also have other responsibilities eg keeping under review the system of judicial administration,8 making recommendations for the training of the judiciary9 or of both the judiciary and the legal profession10 and taking measures to harness law and the legal process in the service of the poor11.
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(f) While the majority are in countries with a long common law heritage, others are in countries with very different legal environments and traditions.
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(g) Although the great majority of LRAs are in Commonwealth countries, there is a significant minority outside the Commonwealth (eg in Hong Kong, Ireland, Indonesia and several states in the United States of America).
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(h) While the majority cover a complete country, a significant minority cover a single state (eg in Australia and Canada).12
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(i) While most are statutory, some are not. (eg in Alberta and Northern Ireland).13
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Some commentators would add to the above description those standing bodies which are established to keep certain limited areas of law under review, eg. criminal law, company law or criminal codification. Whether or not one includes bodies established to review a particular area of law, no doubt they too could receive some of the benefits of international co-operation.
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For all those reasons, it is clear that LRAs should work differently. In discussing co-operation, I am anxious to avoid giving any impression that I think all LRAs should operate alike.
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6 For convenience, “Commissioner” is used to identify those who formally constitute an LRA. In some countries they have other titles.
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7 Sec at Topics for Law Reform below.
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12 1 hope that they will forgive me if I refer throughout to an LRA as having jurisdiction in a particular country, without each lime mentioning the alternative of jurisdiction in a particular state or province.
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13 The Law Reform Advisory Committee for Northern Ireland is to be replaced under 2002 legislation by a statutory Northern Ireland Law Commission.
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This article concentrates on the law reform activities of LRAs. That is the core activity of virtually all LRAs. It is recognised that, apart from the wider activities mentioned at (e) above, many LRAs are involved in work which is closely related to reform, including codification, revision, consolidation and repeals. It is not necessary here to give detailed explanations of these terms, which are anyway understood rather differently by different commentators. However, while “reform” tends to indicate fundamental change to the law, “revision” indicates less root and branch change, “consolidation” means putting together, in one piece of legislation, material which had previously been set out in different pieces of legislation – yet without change to the law itself, and “codification” indicates the provision of a single piece (or series) of legislation to cover – and probably to update and clarify and perhaps to reform – law previously both in legislation and in caselaw.
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The co-operation which takes place in law reform can in principle also take place in these other spheres.
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If it is Government which establishes an independent LRA, Government has seen the value of such a body – for example, the value of its independence, its expertise, its continuity arid its purpose.14 Government has also had the maturity and confidence to establish such a body to advise them. Government then has to appoint good people to the LRA and to trust it. For its own part, the LRA then has to earn that trust – which it does best by the high quality of its work, the importance of the areas in which it works, and the good sense of its recommendations.
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The most typical type of LRA has such a degree of independence that there are only certain steps which a Government could take against it. Their most extreme decision would be to abolish it, which would often require legislation and may provoke substantial opposition. Less extremely, they could ignore or reject its recommendations, starve it of resources, appoint second rate people to it, or exert pressure on it to recommend what the Government wants (which would be a dangerous and unreliable approach for Government to make).
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Inter-Agency Co-operation
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There is a great range of areas in which LRAs can assist each other. Most LRAs have been established within the last 40 years.15 Over those years there has been substantial co-operation between those agencies, especially in the Commonwealth. There are many examples of the way in which that co-operation is specifically forged. There is also considerable bilateral exchange of information and views between LRAs. This has been assisted by LRAs which have gathered law reform information together from a number of countries and have made it widely available to others, for example British Colombia’s Internet Catalogue of Commonwealth Law Reform materials, Alberta’s Internet Site and England’s Internet “Law Under Review”. It has also been assisted in
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14 See Michael Sayers, “Law reform and the Bangladesh Law Commission”, 1998, p. 36 (unpublished).
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15 Some LRAs can trace their origins to very much earlier days. For example, the Law Commission of India traces its ancestry back to a Commission of 1834.
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recent years by individual LRAs placing more and more of their publications on the internet.16
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However, there may be scope for taking such co-operation further, so as both to use the wealth of experience that LRAs have and to reduce unnecessary duplication of effort.
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LRAs normally have a role, often with Government, in identifying the topics which they propose to review. 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.
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It is interesting for LRAs to share information about how their law reform projects are chosen. There may be statutory requirements to be observed before the choices are made. Apart from that, many LRAs conduct some kind of consultation before settling on their programmes of work or agreeing to review areas of law upon request by Government.
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Some areas of law could be regarded as relatively standard or core subjects for law reformers. They would generally be substantive law, in areas such as criminal law, commercial law, family law and public 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 accustomed to investigating the law which covers all “life events”, ranging through birth, marriage, children, divorce and death. Other areas which are vital to the citizen are debt and housing.
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There are frequent debates about whether LRAs should confine themselves to reviews which are dominated by legal issues, or can legitimately review areas where (for example) social policy is the key.17
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Some LRAs may have the opportunity to be more adventurous18 and many do go far wider, eg:-
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restorative justice (Ireland) and transformative justice (Canada),
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sentencing powers (South Africa, New South Wales and Tasmania),
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a whole justice system (New Zealand, South Africa and Western Australia),
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electoral reform (Canada),
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age of criminal responsibility (Scotland),
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the relationship between public police and private security (Canada),
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harmonisation of laws with neighbouring states (Kenya),
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monitoring and co-ordinating law reform activity (Victoria),
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legislation for an independent Law Reform Commission (Kenya),
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16 See the list of Useful Databases at the end of this article.
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17 Audrey Macklin, “Law reform error: Retry or abort”, [1993] Dalhousie Law Journal 395 at 400 – 401 and 411.
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18 See at Innovation below.
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the laws which affect the poor and post-audit for socio-economic legislation (India), educational programmes in connection with their law reform projects (Victoria), security legislation (South Africa), criminal procedure (South Africa), private international law (UK) and electronic equipment in court (South Africa).
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It clearly makes sense for an LRA which is reviewing an area of law to consider reviews of that area which have been conducted elsewhere – rather as the courts are well-used to looking at authoritative decisions in the courts in other jurisdictions. Having made due allowance for all the differences between the countries and jurisdictions and the factors surrounding the area of law, an LRA can often find extremely useful ideas in the reports and recommendations of another LRA. Frequently, LRA reports cite reviews in other countries – ideally with an evaluation of how implemented recommendations have worked in practice. Indeed, some LRAs are required by their founding legislation to examine the law in other jurisdictions.19
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Some LRAs may have additional common interests. For example, some may need to be mindful of legal agreements in their region, eg., regional Treaties and Conventions on Human Rights, on business, on trade, or on the treatment of women, of children or of minorities. It could be useful for LRAs within a region to pool information and ideas about the effects of those agreements.
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It may also be worthwhile for LRAs to share beyond their own regions. For example, some may have a specific remit to consider the rights of indigenous people. In addition, some international legal agreements (eg United Nations Conventions) go wider than any one region. Besides, sometimes a legal agreement (eg on human rights) for a particular region is liable to have some common ground with a similar agreement elsewhere. How different LRAs and different countries apply such agreements is of mutual interest.
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This is one of the largest areas for pooling ideas. LRAs have far greater capacity than ad hoc part-time committees.20 That capacity needs to be well-used. It can only be helpful to share experience on methods and good practice for carrying out law reform. For example, practices no doubt differ about the methods and timing for consultation,21 about how consultation responses are analysed, about the use of outside consultants and of public meetings, about project management, about the value of including draft legislation in final reports, and about the benefits of advisory groups and working parties. Some LRAs might find it useful to explore with other LRAs how they divide work between Commissioners, legal staff, researchers and policy-makers .
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19 For example, the Law Commission for England and Wales and the Scottish Law Commission are required “to obtain such information as to the legal systems of other countries as appears to the Commissioners likely to facilitate the performance of any of their functions”.
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20 “You cannot reform the law of England in your spare time on an occasional afternoon” : Lord Chancellor Gardiner, during the passage through Parliament in 1965 of his Bill to establish the British Law Commissions.
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21 See Michael Kirby, the Hon Mr Justice, “Reforming Law Reform – New Methods of Law Reform in Australia”, paper delivered at the UK National Committee on Comparative Law Colloquium on “Methods of Law Reform”, September 1979.
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Modem means of communication are an example of an area where information might usefully be exchanged. This can relate to methods of presenting and publicising the views of LRAs. It can also relate to more mundane matters such as IT systems.
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At a higher level, some LRAs now have considerable knowledge of different models for the constitution and establishment of LRAs themselves. Although there is not a large amount of published material on this subject, some comparative work has been done, perhaps when reviewing LRAs or considering establishing new ones.22
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3. Impact of Law Reform Agencies
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The most typical impact of law reform recommendations is by way of legislation. Experiences undoubtedly differ between LRAs. The rate of legislative implementation varies between LRAs and over different times in their histories.23
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It can also be valuable to share experience about other ways of using LRA work. Many LRAs publish reports which do not call for legislation at all. This may be because they do not recommend any change in the law, because their recommendations can be implemented without legislation or because they are intended purely as guidance, as advice or as vehicles for discussion rather than for law reform.
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In addition, legislation is not the only way in which the recommendations can take effect. Some can in effect be implemented by the courts. For example, in Hell v Rankin24 a specially convened five-judge Court of Appeal in England heard eight joined appeals on the issue of the appropriate level of damages for non-pecuniary loss for personal injury. The hearing was arranged in response to the Law Commission’s report on the subject, published less than a year earlier. The Commission had recommended that the levels of those damages should be increased, in specific ways and that that increase should be made by the courts, the normal arbiters of the level of damages. The Court of Appeal accepted the recommendation that the level of awards for non-pecuniary loss should be increased, while the court did not wholly follow the Commission’s recommendations.
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LRA reports also have a significant effect in changing views and in providing guidance to the courts on particular subjects. This can lead to a gradual change in the law by developments through the courts or by other means. In reported cases in England in a recent period of under two years, over forty referred to the Law Commission’s work: in eight, the courts cited Law Commission recommendations or commentary in support of their decisions
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22 Eg., Brice Dickson and Michael Hamilton, “Re-forming Law Reform in Northern Ireland” 2000, Research Report for the Criminal Justice Group in Northern Ireland.
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23 “Truly strait is the gate, and narrow the path which, so far as law reform is concerned, leads to the statute book.” Lord Hailsham of St Marylebone, Lord Chancellor, in “Obstacles to Law Reform”, Current Legal Problems, 1981 at page 283.
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The Court of Appeal has said “Where a statute has been enacted as a result of the Law Commission, it is, as I see it, both appropriate and permissible for the court to consider those recommendations in order to help to identify both the mischief which the Act is designed to cure and the public policy underlying it”: Clarke LJ in Yaxley v Gotts.25
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It is also important that from time to time the courts comment, with varying degrees of vigour, that particular areas of law merit review by the Law Commission.
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An area which is particularly difficult for an LRA is to monitor and evaluate their work and the success of legislation or other change which results from their recommendations. LRAs may be able to exchange information about methods for achieving this.
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LRAs are agents of change. They may have the opportunity to be at the forefront of legal development. For example, they may be able to lead the way nationally in identifying areas of law where there is a need for the intervention of the law, in reviewing areas of law which are being affected by new features of life and in recommending new imaginative new legislation.
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Examples of such fields of law are
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LRAs may also be able to use initiative and innovation in methods of law reform. They may be able to lead the way in responsiveness to the needs of the public, as in Australia, Canada and Victoria. They may be able to publish their work with an eye to capturing the attention and imagination of their readership – on the internet, or on CD as well as in printed text, with a range of summaries for different readerships, with part-reports geared to special interests or special needs of language, culture, disability etc.
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As purely advisory bodies, LRAs may need to combine, on the one hand, the high standards which are needed to gain the respect of those with whom they deal and, on the other hand, the dynamic and imaginative approach which – where appropriate – can lead to ground-breaking work and radical ideas.
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5. Information and Other Support
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(a) Information about law and practice
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If an LRA wishes to discover the current law in other countries, it is not always easy to do so. Too often it depends upon individual contacts. It is even more difficult to explore the realities of how the current law works, whether it is likely to be changed and, if so, how. An obvious source of such information is the local LRA.
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If an LRA wishes to gain expertise in a particular area of law in another jurisdiction, it may hesitate to approach an LRA in that jurisdiction. Likewise, an LRA may wish to find an expert in an area of law and, if there is no suitable expert available in their 25 [1999] 3 WLR 1217 at 1232.
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own jurisdiction, to seek that expert elsewhere. The expert could be a member of another LRA, a consultant, an academic, a judge or a practitioner.
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Some LRAs exchange their publications, or alert each other of their new publications.
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Information databases are an important aid to co-operation between LRAs. There are already several extremely useful databases about law reform. However, it may need a central association of LRAs to establish (perhaps mainly by links rather than by an entirely new information database) and keep up to date a comprehensive database. Some of the most useful current law reform databases are listed at the end of this article. Several of them maintain internet links to other LRAs.
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(c) Benefits of Law Reform
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There may be scope for individual LRAs, or groups of them, to pool their experience in providing more and better information about the benefits of law reform and of LRAs. This could be beneficial both in countries where LRAs exist and elsewhere. This could apply both in and outside the Commonwealth.
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(d) Support between law reform agencies
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Mutual support could be particularly helpful for new LRAs and for those which are threatened with closure, downsizing or sidelining. It could also be very valuable for an LRA to receive support from other LRAs when facing new trends or difficulties. LRAs have expertise, experience and solidarity which could be of great practical and psychological benefit. For example, in the last 10 or so years, many LRAs have been established, replaced by successors, abolished or reviewed. The following are examples:-
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Australia (established in 1975) – reviewed in 1994, and continued without substantial change British Columbia (established in 1969), ceased to exist in 1997, when replaced by the British Columbia Law Institute Canada (established in 1971), abolished in 1992 and replaced by the Law Commission of Canada in 1997 England and Wales – reviewed in 2002/03, and continued without substantial change Indonesia established in 2000 Malaysia – being established Newfoundland (established in 1981), ceased to exist in 1992 New Zealand – reviewed in 1999, and continued without substantial change Northern Ireland – being established Ontario (established in 1964), abolished in 1996 Queensland (established in 1968) – reviewed in 1997, and continued without substantial change Singapore – established in 2000 Tasmania (established in 1974), substantially reduced in size in 1989, ceased to exist in 1997 and replaced in 2001
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Victoria had an office of Law Reform Commissioner from 1974 to 1984, which was then replaced by a Law Reform Commission – which was abolished and replaced by the Attorney-General’s Law Reform Advisory Council from 1992 to 2001, when it was itself replaced by the Victorian Law Reform Commission – while a Parliamentary Law Reform Committee has worked alongside since 1992 Western Australia (established in 1972) – reviewed in 1995, and continued with substantial changes.
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There could be mutual benefit in a survey of LRAs, perhaps by means of a questionnaire. The responses could provide a variety of information about the work and methodology of LRAs.
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It might be useful to have an occasional newsletter about matters of interest to law reformers across the world. The Commonwealth Law Bulletin, produced by the Commonwealth Secretariat, includes useful references to recent law reform but the Bulletin is understandably directed very largely to other issues.
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LRAs can learn from each other, or even together in some instances, so as to, improve and maintain standards in a whole range of subject matter, for example:-
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particular areas of law criteria for selecting projects26 independence: its value and its limits27 legal research socio-legal, economic and other empirical research corporate planning project management writing skills the value of non-lawyer Commissioners28 staff selection, development, appraisal and career opportunities use of consultants presentation of material eg length, style of writing, use of graphics, supplementary material such as separate summaries the balance between the law being in a constant, unsettled state of revision, and the law being stable and permanent29 handling the media
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26 A continuing need for law reform: The case for the Law Reform Commission of Nova Scotia, 2001, p 23: available at www. lawreform.ns.ca
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27 Christopher Curran, “Law reform in the lean, mean 1990s”, p 2, Atlantic Institute of Criminology, [Canadian] Federal Law Reform Conference, Final Report.
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28 Sir Geoffrey Palmer, “Evaluation of the (New Zealand} Law Commission”, 2000, p 19.
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29 Albin Eser. “Major Stages of Criminal Law Reform in Germany” (1996) 30 Israel Law Review 28 – 35
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approaches to diverse populations eg indigenous, ethnic minorities, scattered communities, large populations, small populations, disabled, illiterate relationships with Government, the judiciary, the legal profession, Non-Governmental Organisations and academic lawyers and interest groups measures of success, and performance indicators values.
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On recruitment of Commissioners and legal staff, for example, it would be useful to know whether LRAs have found that – apart from lawyers in the civil service – secondments from universities have proved more (or less) practicable and successful than secondments from the legal profession, the judiciary or elsewhere.
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Many LRAs would also find it valuable to know where other LRAs have obtained financial resources. Some may receive all theirs from their sponsor Government Department or Ministry. Others may have obtained significant sums from other Government Departments or Ministries. Some may also have obtained small but significant sums of money, or other assistance with their work, from other sources eg organisations such as professional bodies and from fee income for consultancy work. It would also be interesting for some LRAs to know of funding sources for law reform in less developed countries, eg., the World Bank.
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There may be scope for LRAs to share their resources rather further – ranging from legal textbooks30 to technological expertise or equipment.
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It is possible that some of the current co-operative activities between LRAs could be developed further. The following are examples.
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(1) Exchange of Information
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There has long been a practice, used by a few, of corresponding with other LRAs when information is needed. This potential has increased with the use of e-mail, to which the great majority of LRAs now have access. Even so, such exchanges often depend upon individual contacts.
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To a relatively small extent, information is already exchanged between LRAs. This may cover current work, information on previous projects and information about current law and legal developments.
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30 Eg., via Book Aid International – www.bookaid.org
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A good deal of interaction between LRAs already takes place by way of visits. Such visits generally prove extremely useful. They may be made by Commissioners or senior staff. They may generally last up to a day. They currently appear largely to be fitted in around other meetings – which is understandable because of the time and cost involved in visits which are often many thousands of miles away.
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It can be extremely valuable for one or more Commissioners, legal staff or other staff to visit another LRA. There may be potential for more visits by Commissioners and staff. They could last a few hours, days or even weeks. They could be for information-gathering or deeper study. Some might be prepared to have a Commissioner or staff member seconded to them. There may also be a place for exchanges of personnel.
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Some LRAs have especially close relationships, perhaps because of geographical proximity or for historical reasons.
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There might also be advantages in twinning arrangements being formed between certain LRAs, most obviously between a larger and a smaller LRA.
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There have been some useful conferences and meetings between a number of LRAs. This could profitably be extended.
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For many years, the Commonwealth Law Conference (the most significant single conference for the most senior lawyers within the Commonwealth) has been preceded by a day conference in the same venue for LRAs.
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Regional conferences of LRAs have taken place in some parts of the world, and are hoped for in some others: for example, for Australasia, for Canada, for Eastern and Southern Africa and for the Indian Sub-continent.
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Cross-fertilisation between LRAs is difficult: they are busy, different and often geographically distant. They have Commissioners and staff who tend to be with an LRA for a fairly limited period, generally without prior involvement in law reform. It is inevitable that co-operation tends to be patchy, and more reactive than proactive.
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There has been widespread support for the idea of establishing a Commonwealth Association of LRAs. It could encourage, facilitate and take forward initiatives such as those mentioned in this article
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The concept has the strong support of the Commonwealth Secretariat, which is aware of the benefits which Commonwealth Associations have found in other comparable spheres, both in legal and other contexts.
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The establishment of such an association might be particularly appropriate at this time. Most LRAs are now well established, many are in a time of change – both in the law, in legal systems and in public sector management – and it is a time of particular pressure on many and not least on their resources.
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The practicalities would need careful thought in advance. It might be best to establish a small and relatively informal body, not least because the resources available would undoubtedly be very limited. As important as the funding, which need not be great, are the availability and commitment of one or more people to establish and develop it.
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Many of the facilities which such as association could offer could also be made available beyond the Commonwealth.
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Many of the issues which have arisen in my time as Secretary of the Law Commission in London are issues which may well have arisen in other LRAs. The views, experience and practice of other LRAs either has been valuable to us or might have been if we had sought or had easy access to that kind of information. It may be of interest to summarise just a small selection of those issues, to share our experience and to describe areas where greater inter-agency co-operation could assist.
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Many of the law reform projects which have been undertaken have also been addressed at some time by other LRAs. They range from offences of fraud to decision-making on behalf of the mentally incapacitated, and from damages for personal injury to the property rights of those who live together without being married.
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When deciding whether to press Government for agreement to an LRA review of an area of law, what importance do LRAs give to those topics which involve particular types of issue? They could be issues concerning individuals, for example respect for the dignity of the individual (and his or her fallibility), respect for the rights and liberties of the citizen, and fair and equal treatment for everyone. They could be issues about changes in society, eg., changes in formal and informal relationships, changes to community and cultural attitudes and expectations, and keeping pace with scientific and technological developments. They could be issues about the effectiveness of the law, eg., its accessibility to the citizen, its cost-effectiveness, and the speedy resolution of disputes without unnecessary confrontation and litigation.
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A way in which LRAs can assist Government, society and themselves is in the timing of their work. Proper law reform should not be rushed: part of the justification for LRAs is that they do their work properly. It is generally accepted that sound law reform needs time, and the legislative results are liable to be in place for many decades.
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While those principles need to be firmly in view, it is still important that an LRA does not take too long over a project. What is “too long” will differ substantially between projects, in their particular context. For example, while there may be no intrinsic reason why one particular project needs to be completed by a particular date, there may be other projects where timing is very important. There may be a really grave injustice which needs a rapid remedy
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LRAs should always estimate the completion date for a project from the outset, whether or not they are required to agree that date in advance with the Government. Of course many LRAs also publish their targets. It is extremely difficult to make those esti-mates and in my experience nearly everyone new to law reform underestimates the time that the work will take, quite apart from all the factors which can delay a project – such as other priorities, an important relevant case arising in the higher courts, unexpected difficulties in the project, or unexpected shortage of resources. The London Commission has not resolved the difficulties of forecasting completion dates but we are better than we used to be. This has been one of the advantages of the improved project management, systems which we introduced some years ago.
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An important factor in timeliness is the overall workload of the LRA. The recent trend of the London Commission has been to have many fewer projects at any one time, partly with a view to completing them more quickly. We are currently undertaking about two-thirds of the number of projects which we were undertaking seven years ago, and that is not because of lack of demand!
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We live in a world where there is greater and greater competition for the attention of those with influence and power. The demands upon Government, the professions and others are ever-increasing. These trends have consequences for bodies like LRAs which are purely advisory. We need to ensure that our work is of the highest quality, formulated after full study and consultation.
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It is vital that our publications are written with an eye to their most important readership. We at the London Commission seek to write for the intelligent non-lawyer. For example, if it is necessary for a publication to refer in detail to legal or technical issues, that can be set out separately, after the main thrust of the document. Consultation Papers are primarily written to elicit views from those with particular knowledge or views. Final reports are written rather more for governmental decision-makers. All publications need to attract the reader to realise the importance of the subject. This may depend upon the subject itself, on the way the publication is written and on its presentation.
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We have increasingly tried to ensure that our reports make it unmistakably clear to our readers what impact we forecast if our recommendations are implemented. Most LRAs are predominantly legal and may not have experience of the factors which influence governments towards accepting recommendations for new legislation. If we can spell out in a single place in our publications both how the present law in the area is causing significant problems for a significant number of people and how our recommendations would overcome those problems, Government is far more likely to implement them. For example, if the review is of partnership law, it would be desirable to include statistics about such matters as: the number of different types of partnerships in the jurisdiction, their financial turnover and number of employees
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We also need to do more than merely present our final reports to Government and hope that they will implement them without more ado. While studiously maintaining our independence and avoiding any resemblance to a pressure group or interest group, we need to galvanise interest in and support for the report. This can be done at the time it is published, with written material, meetings, interviews and seminars. We may need to address various interested parties and, often importantly, the media. That may need to be followed in the next months by a variety of activities, ranging from articles in legal journals to meetings with Government Ministers and officials.
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(e) Co-operation with Government
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LRAs which are independent of Government are rightly insistent on maintaining that independence and on making it clear to all concerned. While firmly sustaining that position, we have increasingly tried to cooperate with Government. So it is that, compared with past practice, we have far more detailed discussions with them before we start a project – about the real problems in the area, about the real need for review, about possible reform and about ultimate legislation. During the project we keep the Government informed of progress and consider their views along with those of others. After the project, we may have detailed discussions with Government. Although this involves additional and unfamiliar work for us, we find that this is one way of trying to ensure that our work does not fall on stony ground. We have also forged agreements with Government Departments so that, for example, they are committed normally to responding in some way to our reports within six months of their publication and, if they are minded to reject important parts of our recommendations, to discussing the issues with us before making a final decision.
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In some countries, the media can be important to an LRA, either as an ally or as an enemy. Such an LRA needs to have a strategy. It may involve a number of elements.
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It may include a proactive approach, ensuring that the LRA’s work is presented clearly and positively to the media. Some newspapers may be willing to publish an article written by the LRA on the day of publication of the LRA’s report. Many parts of the media will welcome the opportunity to interview a Commissioner or attend a Press conference.
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Especially if the LRA is working on a sensitive or high profile project, it may also be important to avoid adverse publicity. This may involve the LRA, on the one hand,
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making contact with the media and trying to ensure that they do not misunderstand or misrepresent the LRA’s work and, on the other hand, being ready if they do.31
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Because of its intrinsic worth and value, law reform is an attractive type of work for some lawyers – although particular skills and experience are needed. Because the salaries available for working in an LRA, which is generally in the public service, tend to be considerably lower than those in the private sector, inventiveness may be necessary if an LRA is to have a full complement of good quality legal staff.
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In London we have been able to develop a number of ways of attracting lawyers to the staff, apart from the interest of the work itself to those who would like to participate in some way in improving the law. Apart from a range of recruitment activities and arrangements (eg., we welcome appropriate secondments and short-term fixed contracts), we have introduced a large variety of work/life balance arrangements for such a small workforce, including many flexible working arrangements (eg., home-working). the Commission’s staff are committed to ensuring that equality and diversity issues are taken fully into account in personnel matters, and we make real efforts to train and develop staff.
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Many Law Reform Agencies co-operate with each other in a number of different ways. However, there is scope for further co-operation, taking into account both the benefits of co-operation and the work that it involves. Some of the areas which could be further enhanced are:-
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Sharing information about how law reform projects are chosen Identifying subjects for law reform Providing information about each other’s projects and recommendations Sharing experience on methods and good practice for carrying out law reform Sharing experience about the impact and implementation of law reform recommendations, and about ways of nurturing implementation Providing advice about alternatives to legislative implementation Exchanging information on monitoring and evaluating the success of law reform measures Providing access to information about current law in the respective countries Providing ready means of access to experts and expertise in particular areas of law in other jurisdictions Learning from each other about relationships with Government, professionals, the media, etc
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31 The London Law Commission has certainly been the butt of extraordinary Press articles and even campaigns, being accused as “Legal commissars subverting family values” and being given descriptions like “trendy, left-wing academic quango”, reported in “The Law Commission: True Dawns and False Dawns” [1996] 59 Modem Law Review at 633.
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Making arrangements for personnel, including possible visits and exchange
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Introducing new or creative initiatives and methods of work
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Seeking training and advice from each other, in a great variety of subjectmatter
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Giving mutual support when facing new trends or difficulties
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Assisting in achieving and sustaining high standards and values
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Advancing the cause of law reform and of Law Reform Agencies.
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* Australian Law Reform Commission: www.alrc.gov.au
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* British Colombia Law Institute, with a very substantial index to law reform materials from around the world (www.bcli.org)
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* Cambridge University: www.law.com.ac.uk
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* Commonwealth Parliamentary Association, with links to a wide range of Commonwealth, Parliamentary and Governmental websites (www.comparlhq.org.uk)
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* Foreign Law Guide, describing the holdings of foreign, international and comparative law in the national and university libraries of the United Kingdom (http:ials.sas.uk/flag.htm)
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* Hong Kong: www.info.gov.hk
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* Law Commission of Canada: www.lcc.gc.ca
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* Law Commission of England and Wales: www.lawcom.gov.uk at Law under Review
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* New South Wales Law Reform Commission: www.lawlink.nsw.gov.au
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* New Zealand Law Commission: www.lawcom.govt.nz
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* Queensland Law Reform Commission: www.qlrc.qld.gov.a
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