COMMONWEALTH COMMONWEALTH SECRETARIAT Changing the Law A Practical Guide to Law Reform Commonwealth Secretariat 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 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. ISBN 978-184929-174-3 Commonwealth Association of Law Reform Agencies 7818499 291743 Changing the Law A Practical Guide to Law Reform Commonwealth Secretariat Commonwealth Association of Law Reform Agencies Commonwealth Secretariat Marlborough House Pall Mall London SW1Y 5HX United Kingdom © Commonwealth Secretariat 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or otherwise without the permission of the publisher. Published by the Commonwealth Secretariat Edited by Prepress Projects Ltd Typeset by Nova Techset Private Limited, Bengaluru & Chennai, India Cover design by Commonwealth Secretariat Printed by Commonwealth Secretariat Views and opinions expressed in this publication are the responsibility of the authors and should in no way be attributed to the institutions to which they are affiliated or to the Commonwealth Secretariat. Wherever possible, the Commonwealth Secretariat uses paper sourced from responsible forests or from sources that minimise a destructive impact on the environment. Copies of this publication may be obtained from Publications Section Commonwealth Secretariat Marlborough House Pall Mall London SW1Y 5HX United Kingdom Tel: +44 (0)20 7747 6534 Email: [email protected] Web: www.thecommonwealth.org/publications A catalogue record for this publication is available from the British Library. ISBN (paperback): 978-1-84929-174-3 ISBN (e-book): 978-1-84859-966-6 Office of Civil and Criminal Justice Reform The Commonwealth Office of Civil and Criminal Justice Reform supports Commonwealth countries in delivering access to justice and sustainable development through the creation of fair and effective national laws. [email protected] iii Foreword The Rt Hon Patricia Scotland QC Secretary-General of the Commonwealth In 2015, the global Sustainable Development Goals included the principle that the development aspirations of all people everywhere are intimately linked with the promotion of the rule of law. While this depends on many factors, at a fundamental level the rule of law depends on the quality of the laws that are made and upheld. That is, the rule of law requires good law. Law reform is the process that makes law good, and good law better. Institutions and systems that provide fair, modern and cost-effective law reform underpin the rule of law, and therefore serve an important role in delivering sustainable development. It is for these reasons that the Commonwealth Secretariat has for many years supported national law reform efforts. Our recently launched Commonwealth Office of Civil and Criminal Justice Reform will carry forward this work by making available for use by all Commonwealth member countries legal tools, knowledge and good practice manuals – such as this guide. Our objective in doing so is to strengthen the rule of law, and to facilitate swift and equitable access to justice for all. In matters of law and law reform, as in everything else, there is considerable diversity within the Commonwealth. There are, however, many common threads that run through this diversity and connect most, if not all, Commonwealth jurisdictions. Regardless of similarities and differences, all Commonwealth countries stand to benefit from the accumulated practical wisdom generously shared in these pages. The Commonwealth Secretariat is indebted to our principal partner in this venture, the Commonwealth Association of Law Reform Agencies, and to the many others who have contributed. The outcome of our collaboration, this guide to law reform, will help us all to meet our Commonwealth Charter commitment to upholding the rule of law as an essential protection for all the people of the Commonwealth. iv Changing the Law: A Practical Guide to Law Reform Foreword The Hon Philip Cummins AM President of the Commonwealth Association of Law Reform Agencies To sustain the rule of law, law reform needs to be principled, based on sound methods, and to take full account of the views of civil society and of experts. It should be respected, reliable, rigorous and responsive. Experience and specialist knowledge are needed when seeking to deliver law reform that is successful by these measures. This guide provides practical guidance on the day-to-day process of carrying out law reform in any jurisdiction. Much has been written about law reform, but this guide is the first to have a practical and multi-jurisdictional focus. The need for such a guide has been widely acknowledged. The guide takes the reader in a very practical way through a typical law reform project. It aims to be accessible and engaging, whether read as a whole or referred to when questions arise. The guide sets out the stages of a project, providing ideas and discussing practical options. It suggests the advantages of different approaches, explaining the reasons and providing examples. The guide is intended for all those involved in law reform in any capacity, including within dedicated law reform agencies, as well as within government ministries and agencies. There will also be particular benefits if this guide serves to stimulate interest in and support for high-quality law reform in jurisdictions where reform is currently given low priority. The Commonwealth Association of Law Reform Agencies and its members have long hoped and planned for the production of such a guide. Together with the Commonwealth Secretariat, we are proud to present this guide to law reform. As a significant undertaking, it has been written with assistance from a wide variety of contributors, including many experienced law reformers from across the Commonwealth and beyond. The experience from this range of jurisdictions will enable countries to learn from each other. Our association is grateful to the Secretariat for working with us to produce this guide. It has been an effective and valuable partnership – with, we hope, significant benefits to law reform. v Acknowledgements This guide was produced by the Governance and Peace Directorate of the Commonwealth Secretariat, jointly with the Commonwealth Association of Law Reform Agencies. Editor: Richard Percival, Senior Research Fellow, Law Reform and Policy Analysis, Cardiff Law School. Associate Editor: Michael Sayers, former Chief Executive, Law Commission for England and Wales, and Hon General Secretary of Commonwealth Association of Law Reform Agencies. Commonwealth Secretariat team: Steven Malby, Head, Office of Civil and Criminal Justice Reform; Segametsi Mothibatsela, Legal Adviser; and Matthew Moorhead, Legal Adviser. Serving members and staff of many law reform agencies have assisted with the drafting and revision of this guide, along with others. The Commonwealth Association of Law Reform Agencies and the Commonwealth Secretariat are most grateful to all of them, and thank them most warmly. They are mainly members of the Commonwealth Association of Law Reform Agencies. They include the main authors, listed below, who drafted sections of the guide, those from different jurisdictions, who commented on the drafts – and especially the Editor, assisted by the Associate Editor. Alberta Law Reform Institute Peter Lown QC (former Director) Australian Law Reform Commission Professor Rosalind Croucher AM (former President) Bangladesh Law Commission British Columbia Law Institute Cayman Islands Law Reform Commission Law Commission for England and Wales Tamara Goriely and Vindelyn Hilman-Smith Ghana Law Reform Commission Law Reform Commission of Hong Kong Stuart Stoker (formerly the Secretary) vi Changing the Law: A Practical Guide to Law Reform Law Reform Commission of Ireland Raymond Byrne Legal Reform Department, Ministry of Justice, Jamaica Maurice Bailey Kenya Law Reform Commission Law Reform Commission of Mauritius Pierre Rosario Domingue Law Reform and Development Commission of Namibia Yvonne Dausab, Felicity Owoses and Robert Xamseb New Zealand Law Commission Scottish Law Commission Malcolm McMillan South African Law Reform Commission Samoa Law Reform Commission Law Reform Commission of Tanzania Aloysius Mujulizi Law Reform Commission of Trinidad and Tobago Uganda Law Reform Commission Vastina Ruki-Nsanze Victorian Law Reform Commission vii Contents Foreword by the Rt Hon Patricia Scotland QC, Secretary-General of the Commonwealth iii Foreword by the Hon Philip Cummins AM, President of the Commonwealth Association of Law Reform Agencies iv Acknowledgements v 1 Introduction 1 1.1 The purpose of this guide 3 1.2 The approach of the guide 5 2 Law Reform and Law Reformers 9 2.1 What is law reform? 11 2.2 Who does law reform? 16 2.3 Legislation and law reform