A Cohort of Law Commissions

A cohort of law commissions or a covey? We’re not militarily inclined, but we are associates, so cohort kind of works. We are, alas, a small group, but would run of the risk of being thought of as “grouse” if we used “covey” – and this might be a misleading or incomplete connotation, since we are “constructive grousers”. I’ve decided on “cohort”.

From March 8th to 10th, the British Columbia Law Institute hosted a meeting of the Federation of Law Reform Agencies of Canada in Victoria (yes, it snowed there). FOLRAC is a loose cohort of law reform agencies in Canada. Currently, BC, Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia have law reform commissions, albeit differently funded and resourced and with somewhat different approaches to carrying out law reform activities. FOLRAC meets every couple of years to consider issues of common interest to all of us. (We also send representatives to the Uniform Law Conference of Canada annual meeting and get together over lunch then.) We talked about everything from how we develop projects to developments in funding to how we can better use technology.

The BCLI were great hosts and ran a well-organized symposium. They arranged a visit to the British Columbia Parliament buildings, a lovely stately building, the only time some of us ventured a walk outside in blistery Victoria weather, and were otherwise diligent in their hosting duties. Of particular value to meetings was the inclusion of members of government and funding reps (and as it happened, a visitor from the new law reform commission of Somoa, who was spending a couple of weeks in BC and more time in Alberta with their respective law institutes). For me, one of the more important discussions involved the relationship between the expectations of government and funders and the kind of work we law commissions do and how our work is measured. (I should say there were no government reps or funders from Ontario, but will otherwise leave the jurisdictions unnamed.)

There’s no doubt that all of us in law commission work want to see our recommendations implemented in law or policy. This is a good thing. But there are two consequences we need to be aware of if we put too many eggs in this basket. The first is that we must be wary of becoming an arm of government and losing our independence. Sometimes we need to be “ahead” of government in our recommendations, sometimes we need to challenge government’s view, sometimes we need to address issues that aren’t even a twinkle in the government’s eye. I want to be clear that these are not mutually exclusive ways of looking at the law reform mandate; on the contrary, in my view our project mix should include projects with a good chance of implementation (although there’s never a guarantee) and projects that may be broader, more future-looking and not necessarily on the government’s agenda. Too great a focus on framing our work to respond to what government might need (for example, it was suggested that “objective” measures are important) can distort the law reform agenda in one direction. (Other government reps were supportive of a broader contribution, it must be said, and the emphasis on objective measures was intended to be helpful to getting our recommendations accepted.)

How does this relate to funding? The law commissions are funded in different ways, some on a project basis, some on annual funding, some on more long-term funding. And they are funded from different sources, often from law foundations, most by government to different degrees, and a few from other sources, including universities and law societies. One is funded by the province’s Real Estate Foundation. I want to be clear here, too, that we have had no suggestion that funders have tried to influence the recommendations of law commissions. To the extent they “influence” the selection of projects, it would be more likely on a project funding basis and on measures that do not include “political” considerations. But there is one aspect of funding that overlaps with my point above, the need for commissions to engage in a mix of projects, if they have the capacity to do so, if they are to provide added value to the law reform landscape. Funders have to answer to their own funding sources. It is easier to answer with more objective measures, such as success in having recommendations adopted by the government, than with measures such as contributing to or even shifting the tone of the debate around a particular legal or legal/social issue. If law commissions are to be able to make a contribution that few other bodies can, funders must be tolerant of the different ways in which their performances can be assessed. This is not to forget assessment, rather it is to appreciate the potentially distinctive nature of law reform commission work.

Law commissions are not immune from the concerns of us all given the global economic crisis and we know our funders are not immune, either. We have to be practical. We do have to have a mix of projects (indeed, it is possible that one project will involve both short-term and long-term recommendations). We should look at narrowly defined legal issues. But we also have to be cognizant of the way in which we can make long-term contributions to the development of law, of legal knowledge and to the relationship between law and other ways of organizing society, if we do our work well.

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