12
The Structural and Operational Framework
What sort of organisation is required to deal with this specific and unique role?
Dedicated law reform agencies like those we are each involved with do not have a
monopoly on this revision and improvement. Politicians and civil servants often do
reform. So do Judges, although if it is too obvious they are doing so, they are at risk of
being pejoratively labelled as activists by critics of an outcome. So by what are we to
be known?
Statutory independence I see as essential. In my judgment a Law Commission must
never be constrained in its ability to approach a problem as it sees fit, to assess an issue
and all its ramifications and have the ability to recommend and report without inhibition
or constraint. That does not mean that a law reform agency can or should act in a way
which is theoretically or practically unrealistic, lacking in principle, inconsistent or
inequitable. But the controls should not be external and certainly should not come from
any of the branches of government. A law commission cannot be beholden to a party
political agenda. It should not be responding to the demands of an interest group nor in
a particularised way be reacting to an individual case. It cannot be a body which is told
what the answer is to be before its inquiry ha s begun. There must be a vision and
principle at the core of the investigation which must nonetheless be locked in reality.
Those of us involved need to remember that the more ambitious recommendations are,
the more opportunity is presented for those who are uncomfortable with the thrust, or
unhappy with the prospect of change, to go on the defensive and lobby against reform.
The challenge for law reformers is to find a resolution of the tension between what is
pragmatically achievable and what principle and integrity suggest. There is an ongoing
challenge for us all in how we engage with politicians, the bureaucracy, the judiciary
and the wider community without being captured by any of them. We cannot hope to
be relevant or effective if we have an agenda which is unrelated to current needs,
perceptions and aspirations. But law reform bodies must be alongside these other parts
of the community and not submerged by them.