Changing the Law

Changing the Law

A Practical Guide to Law Reform You do not have access to this content

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Commonwealth Secretariat
09 Dec 2017
9781848599666 (PDF)

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Law is always in need of reform. To enhance justice and legal efficiency, and contribute to socio-economic development, reform needs to be of a high standard. Across the Commonwealth, there is a need for information and guidance about the different ways in which law reform can be undertaken.

Changing the Law: A Practical Guide to Law Reform is designed to provide practical assistance to users seeking to deliver high-standard law reform outcomes. Using examples and experience from around the Commonwealth and beyond, it guides users through each phase of a successful reform, from initiation to final implementation. It is the first general guide to conducting law reform in Commonwealth countries.

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  • Foreword by The Rt Hon Patricia Scotland QC, Secretary-General of the Commonwealth
  • Foreword by The Hon Philip Cummins AM, President of the Commonwealth Association of Law Reform Agencies
  • Acknowledgements
  • Introduction

    Law is always in need of reform. To be successful, law reform must be of a high standard. This guide is designed to provide practical assistance to users seeking to deliver high-standard law reform outcomes. Using examples and experience from around the Commonwealth and beyond, it guides users through each of the phases of a successful reform. It is the first general guide to conducting law reform in Commonwealth countries.

  • Law Reform and Law Reformers

    Chapter 2 explores the nature of law reform as it has developed over the past 50 years. The chapter goes on to consider how law reform legislation fits into the legislative scheme in general, and then surveys the key features of law reform agencies and their values. In this connection, it considers the nuanced way in which law reform agencies and governments have separate roles. It provides a characterisation of the institutional models that presently exist – the standard model of a statutory law reform agency; the institute model sometimes used at sub-state level in Canada and Australia; and the in-government unit.

  • The Initiation of Law Reform Projects

    Chapter 3 looks at how law reform projects are initiated. The starting point is the mandate – statutory or otherwise – of the agency, which is usually very broad. It then looks at how an agency can select types of project, and discusses the advantages and disadvantages of each. Under the theme of relations with government, it looks at the ways in which a law reform agency receives or decides upon work, whether in references from government or in programmes of work generated by the agency itself (albeit usually approved by governments). The chapter also looks at the institutionalisation of relations with governments as an integral part of the process. The selection criteria for law reform projects are then considered. Finally, the chapter looks at how law reform fits the contemporary context, as well as some of the current challenges to law reform.

  • The Planning and Management of Projects

    Chapter 4 considers the planning and management of projects. It starts by looking at how project teams are formed, and then considers the basic elements of project management – a timeline and a budget; evaluation of progress; co-ordination of inputs; and risk management. The chapter goes on to discuss key mechanisms for project management. These include task lists, the identification of responsibilities, dependencies and timelines.

  • Pre-consultation: Research and Pre-consultation: Research and Drafting

    Chapter 5 considers the first stage of a law reform project – research and drafting in the period before the start of consultation. A variety of first stage documents are examined, including documents that provide background, analysis and initial conclusions for consultation. The chapter considers legal research, as practised in law reform agencies. This means not only research into the law, and its development within the jurisdiction, but also comparative legal research and empirical social science research. The chapter then considers the nature and value of pre-consultation engagement with stakeholders. It provides guidance on the drafting of consultation documents and the development of legal policy in a consultation document, as well as the balance between provisional proposals and questions.

  • Consultation

    Chapter 6 addresses the role of consultation as a definitive element of law reform. Following a discussion of why consultation is important, the chapter considers different forms of consultation process. It goes on to discuss identification of the audience for consultation and the publication process. The chapter then looks at active consultation – how law reform agencies reach out to the communities with which they aim to engage through advisory groups, meetings and events, and observational consultation and site visits. It underlines the importance of record keeping. It examines the persistent problem of difficult-to-reach interests – how do law reform agencies reach out to those communities that are not organised in such a way as to be readily accessible to the law reformer? Finally, the chapter considers some of the practical issues in relation to written responses, such as time extensions and confidentiality.

  • Policy-making

    Chapter 7 turns to policy-making after consultation. It considers how the fruits of consultation are analysed, understood and fed into the policy-making process, leading law reform agencies to come to conclusions. The chapter looks at the development of documents by which law reform

  • Publication, Implementation and Following Up a Report

    Chapter 8 covers the last stage in a law reform project – publication, implementation and following up a report. The chapter starts by considering the very real challenge of implementation to law reform agencies. It looks at the process of publication and the government’s response. The chapter goes on to discuss how law reform agencies can support governments in implementing recommendations after they have been reported. This involves the consideration of possible avenues of influence, such as various forms of engagement with government and the role of supportive interest groups. Finally, the chapter considers the development in a small number of jurisdictions of a special parliamentary process for law reform agency bills, and discusses whether the model could be more widely used.

  • Law Reform: Standards, International Obligations and Sustainable Development

    Chapter 9 discusses the impact of international law and standards on law reform processes, including international human rights law, as well as non-binding model laws. It also explores the important contribution that law reform can make to the realisation of the United Nations Sustainable Development Goals.

  • Law Reform in Small States

    Chapter 10 turns to the particular challenges of law reform in small Commonwealth states and jurisdictions. Of the 52 members of the Commonwealth, 30 are classified as small states. In addition, law reform agencies exist in a number of non-state jurisdictions. Chapter 10 covers the challenges and advantages of a small population and land area, and the impact that can have on the structure of law reform agencies there, including the particular pressures on staffing. The chapter looks at how such agencies adapt the law reform process, and the particular significance of comparative research for them. It goes on to outline how, despite the challenges, small state and jurisdiction law reform agencies have made very considerable contributions to the law. Finally, the chapter assesses the particular utility of co-operation between law reform agencies, including through regional associations.

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