Speech by the Hon Michael Kirby AC CMG* at the Conference on Law Reform on Hong Kong: Does it Need Reform? The University of Hong Kong, Deparmtent of Law, 17 September 2011
Of teddy bears and whisky
At the end of an intensive day symposium on law reform in Hong Kong, we will depart with a vivid image in our minds. It will haunt us far away in time and space. I do not refer to the image of the young Sun Yat-Sen, graduate of the Hong Kong Medical College, a century ago leading the first Chinese Revolution. Nor even the image of the founders of the University of Hong Kong who, at the same time, were laying the foundations of the institution whose achievements we celebrate. These are vivid but optimistic images in our minds. They teach us the capacity of human beings to think bold thoughts. And to translate them into action.
No, the image that will haunt us is that of the over-nourished, sleepy teddy bear, reclining lazily in a comfortable armchair, with a glass at his side. The glass contains vintage whisky. The picture is one of self-contentment and indolent inactivity. It was presented as the last slide in the Powerpoints of Privacy Commissioner Allan Chiang. The image reminds us of the traditional way in which law reform was performed in English-speaking societies, before Lord Scarman provided the challenge of full-time institutional law reform in 1965. Self-satisfaction was the name of the game. Such law reform as was proposed had to be done in very small bites; by part-time committees; meeting at the end of busy days; generally in armchairs; followed at the end by a stiff glass of whisky to banish the troublesome cares of reform.
If there is one significant lesson from this dialogue, it must be of the decline and fall (at least temporarily) of the full-time, professional, well resourced law reform agency. In Canada, the federal body created to perform the task has been abolished: not once but twice. In Ontario, where a major full-time institution, described by Patricia Hughes, long flourished, it has been replaced by a part-time body with a small budget. In several Australian states, a hybrid institute has replaced the earlier models, reliant on busy academics and robbed of significant public subventions. Even the Australian Law Reform Commission, despite the marked success of its implementation track record, has suffered serious blows to its personnel, facilities, programme and funding.
So the question presented at the end of this dialogue is not how institutional law reform can be improved in Hong Kong, and elsewhere. It is whether full-time law reform agencies have any realistic part to play in the legal systems of common law countries. What are the reasons for the apparent rise in hostility to the Scarman idea? If we can analyse them, we may well be able to overcome them and breathe fresh life into the concept of institutional law reform that looked so promising just 45 years ago. The value of this engagement is that it has obliged us to think deeply about the institutions and processes of law reform. We have done so not only for Hong Kong, but also for the other countries, with similar legal systems, that have participated: the United Kingdom, Canada and Australia.
Reasons for hostility and standstill
1. Institutional territorialism
One possible reason for the ‘standstill’, Allan Chiang’s descriptive noun that captures the reality of much institutional law reform today, would seem to be the territorialism of power. Those who have, and wield power over the development of legal change, legislative and executive, sometimes like to retain complete control over the process.
By definition, law reform bodies are likely to be independent. Their staff, consultants and other participants may see issues and urgencies of reform in ways different from government. In particular, as one speaker pointed out, finance ministers, and their officials, in any government, tend to resent lawyers and other interlopers who intrude into areas that they regard as their own. Unfortunately, some law reform projects, as for example on bankruptcy, insolvency and insurance contracts, can have significant economic consequences. In the nature of politics today, finance ministries tend to have and wield enormous power. And that includes the power to frustrate and terminate the reform process.
2. Government sensitivity
Occasionally, excuses for delay will be offered by reference to the sensitivity of proposals made to elected governments, and especially when they are at or near the times of elections. Whereas a minister can effectively control over the timing of activities by officers in the executive government, there may not be the same control over timing of law reform reports. Some delay in tabling such reports and making them public may afford a breathing space. But, in the nature of the operation of executive government, public officials will generally be more attentive to political sensitivities than independent law reform bodies which see their duty as being owed to a longer term ideal of law improvement. Officials in government departments and agencies can be extremely risk-averse, as can some politicians. Many projects of law reform may be seen, rightly or wrongly, to be risky and controversial. This may help to explain the inclination of some officials never to lose control over any topic that could come back to cause annoyance or embarrassment.
I have a feeling that this is why, after an interval of 30 years of the Scarman model, a new generation of officials, with strong instincts of control have reacted with less open-mindedness than their predecessors did to the advantage of external stimuli for the development of the law. Putting it quite bluntly, some officials are what are popularly described today as “control freaks”. Timid, elected politicians can come to appreciate such officials and to accept their assertions that their main object in life is to protect the minister from danger. In the surprisingly accurate BBC television programme, Yes Prime Minister, the leading dramatis personae illustrated the symbiotic relationship that can quickly develop between elected politicians and government officials. The circumstances in Hong Kong may require some adjustments. But the basic integers of the relationship are the same.
3. Staffing and drafting
An instance of the foregoing problem can be seen in the disinclination to provide proper resources to institutional law reform, which now exists in many (perhaps most) jurisdictions of the common law world in one form or another. Institutional law reform was never well resourced or strongly supported. Still, by comparison to today, the situation in the 1970s looks like a ‘golden age’. Although law reform agencies have emphasised the utility of securing available drafting skills, to convert law reform proposals into statutory form where that is appropriate, this facility has generally been denied to the agencies in recent years. The consequence is that proposals are rarely, if ever, ready in Australia (as once they were) for rapid adoption where the political will exists. There is always now the ‘pause that refreshes’ because of the necessity to secure a legislative draft before anything serious would happen.
The large reduction in the staff component of the ALRC, in Australia, in recent years contrasts markedly with the huge contemporary growth of the staff of the Federal Attorney-General’s Department. In the 1970s, when the latter was much more modestly staffed, the excellence and centrality of its legal role in government was universally acknowledged. Its leaders, who were officers with enduring federal experience and a broad vision, appreciated the institutional value of stimulating proposals for law reform from a source different from the permanent bureaucracy. In this, they had their eyes fixed on a longer term perspective; not necessarily the short-term political agenda and programme of the government of the day. The result of this change has been a demoralisation of those, in several jurisdictions, who work in law reform. The brave hopes of the 1970s have all too often been dashed by the perceived need to control political outcomes and to avoid risks that are viewed as unnecessary.
4. Avoiding controversy
One source of risk is controversy. The very process of institutional law reform is designed to address and harness controversy by regular procedures of consultation. Such procedures are likely, on occasion, to encourage controversy as regularly happened in the work of the ALRC. Even a project on child welfare law became ‘hot’ because of questions that were raised in a discussion paper about corporal punishment of children; their access to sex education; and their lawful age of consent for medical treatment. Controversy is the stuff of modern societies. However, many politicians and permanent officials feel a keen desire to control, limit and disguise such controversy, although this may simply delay its emergence to circumstances providing less structured influence over outcomes.
5. Change and fragility of government
Whether in circumstances of universal elections or otherwise, governments can sometimes be or feel fragile, resulting in a desire to avoid challenges that demonstrate vulnerability. The close general election results in recent years in Australia, the United States of America, Canada and the United Kingdom, suggest an interval of weakness in electoral democracy responding to current policy divisions.
This, in turn, may make governments and officials nervous about the controversies they cannot fully control. This may help to explain the diminished enthusiasm today for the structured controversies of institutional law reform, compared with what existed in the 1970s and 1980s. It may help to explain the disinclination to spend resources on institutional law reform and a preference for resources to be expended on government officials whose thinking and outcomes can more easily be controlled and influenced. Thus, the independence of law reform agencies may be seen as a challenge to many proponents of ‘strong’ and ‘decisive’ government, according to party political programmes.
6. Political opposition
Some analysts suggest that social democratic governments may be more supportive of institutional law reform than conservative governments. The idea of creating the United Kingdom Law Commissions was first advanced by Lord Gardiner LC before and during the Wilson Labour Government. Similarly, the ALRC was created by the Whitlam Labor Government, under a progressive Attorney-General, Lionel Murphy. On the other hand, some politicians, nominally in conservative governments, prove strong advocates of law reform. In a sense, true conservatives will seek to make the institutions of law and law making more effective and responsive to community needs.
This was the approach of Prime Minister Malcolm Fraser and his Attorney-General, Robert Ellicott QC, in Australia. By comparison to the present severe cutbacks of the ALRC, the past President (Professor David Weisbrot) has described the years of the conservative Howard Government as a ‘golden age’ for the ALRC. Conservative governments can find utility in institutional law reform for carrying forward dialogue, consultation and engagement that find ways to secure reform. Occasionally, governments with narrow, particular-interest agendas of reform, may not be much interested in the broader issues of technical or non-political law reform, that typically tend to engage law reform agencies.
7. Jealousy and hostility
An effective law reform agency, by its processes of consultation, may prove more capable of engaging with the public over issues of law reform that matter to many community groups. This engagement (and the attendant publicity) can sometimes irritate politicians and officials. They may contrast the lack of public and media attention to their own agendas and, in fairness, to their own large and perhaps greater contributions to effective law reform because they have the direct support of government. These considerations have, from time to time, affected governmental and official attitudes to institutional law reform in Australia.
8. Disappearing political champions
Anyone who has much to do with the process of law reform will affirm the high importance of having political champions who support both the process and most outcomes. This was certainly so in Australia in securing the major reforms of administrative law under successive Coalition and Labor governments. Strong support from the political top can even help to overcome doubts and cautious hesitations on the part of officials (frequently a voice for leaving things well alone). Those who try to get significant reforms of social legislation often recount the key roles played by particular individuals, convinced of the importance of reform or perhaps are aware from family circumstances of the injustice of present laws. At a recent symposium in the Caribbean, Dame Billie Miller, a leading woman politician, told of the key part played by a male prime minister who was converted to the need to change the laws on women’s reproductive health. Likewise, particular champions of gay law reform have played a role in securing the repeal of anachronistic sodomy laws, including in Britain, Australia and Hong Kong. In the United Kingdom, the chance fact that Sir John Wolfenden (Chair of the Committee of Homosexual Law Reform) had a gay son may have opened his eyes to the need for reform. But in the absence of champions and chance events of this kind, hostility and political official caution may help impede law reform.
Finding champions for law reform agencies and specifically for particular projects is a time-consuming search. In Australia, Mr. Ralph Jacobi MP, a Labor backbencher, was a prime mover in securing the enquiry into insurance contracts law reform and in demanding legislative follow up. How do we secure such champions? To what extent can law reform agencies themselves promote and encourage their emergence?
9. Confusing consensus and unanimity
The present symposium revealed a frequent logjam in Hong Kong in action on law reform reports. A repeated phenomenon is the need for a report upon the report. Although, in Australia, the ALRC has provided at least two major reports on reform of the law for the protection of privacy, a cautious government has now produced a still further discussion paper to explore options on the subject. In earlier times, government would simply make up its mind on the basis of the law reform report.
Likewise, in Hong Kong, on subjects such as insolvency law and also privacy protection, much caution is exhibited. There appears to be a confusion in contemporary politics between requiring a broad consensus in favour of a reform proposal (perhaps with necessary variations) and waiting for complete unanimity to emerge in society. In most topics of law reform, particularly those related to controversial questions of social policy, unanimity will never emerge. That is the nature of a community that permits free discussion, a vigorous media and active civil society organisations. The logjam in building agreement to law reform is a major obstacle today to securing legislative action. Endless committees and enquiries seem to have become a hallmark of contemporary elected governments.
10. Faults in law reform
It must be conceded that some of the faults that have arisen in the process of law reform derive from law reform agencies themselves. All too often, they have been over-ambitious in exploring projects on which they embark. And slow in executing their reports. Where the project is assigned by, or with the input of, government, delay will risk the possibility that those who were behind the reform project in the first place may have moved on and out of politics. In such circumstances, the law reform agency may have lost its relevant champion and supporters.
Law reform itself needs to be efficient in producing reports, whilst allowing fully for social survey examinations of aspects of reform that may be neglected in the standard preparation of legislation. In the ALRC, early delivery of law reform reports was often seriously delayed. This problem has been substantially overcome by the Attorney-General (whose reference is required for a project) fixing a deadline for reports, which has ordinarily been adhered to.
11. Fear of economic costs
Most law reform proposals have an economic cost attached to them. Many court decisions, where the common law is re-expressed, have cost implications. Thus the United States Supreme Court decision in Gideon v Wainright and the High Court of Australia’s decision in Dietrich v The Queen had most significant economic implications. As a result of them, effectively, the state was required to provide legal counsel to indigent accused facing serious criminal trials.
Virtually every law reform report involves cost consequences. Yet, until recently, these costs were rarely spelt out. Necessarily, finance officials and ministers have to weigh up such costs consequences against other competing priorities, including other possible law reforms. Because few, if any, law reform bodies have members or consultants who are skilled in economics, they may not always have taken into account all of the cost implications of their proposals. Occasionally, this could have been a reason why reform proposals were put on the backburner or rejected altogether.
Where proposals have important cost consequences for business, it is to be expected that well-organised lobbyists will oppose the suggested changes in the law and urge revision, delay or rejection. To overcome such hurdles, law reform agencies need to obtain, and record, cost advice so as to counter the opposition. As Professor Martin Partington told this conference, the Law Commission of England and Wales has recruited experienced economists to help with at least those projects having potential cost significance to government. Sometimes such voices are needed as counterweights to the usually conservative attitudes in Treasury to any proposal that might involve the need to raise more revenue or to find funds from other sources. At the very least, access to Treasury, for advice on costs implications may be essential in cases involving business and administrative law, with their high cost potentials.
12. Timing is all
One lesson of the stories recounted at this symposium was that timing can be crucial to the success of law reform proposals. Especially in the instance of long serving governments, weak governments, unstable governments or governments lacking in self-confidence, gaining the ear of crucial politicians and officials becomes critical.
A common problem mentioned in these discussions has been that officials, who may have been tutored in the theoretical and practical necessities of a particular reform, tend to move on and upwards. They are then lost to the law reform agency and replaced by new officials (or perhaps new ministers) with different personalities, attitudes and levels of knowledge and empathy for the reform proposal. A change in government can also be vital. Sometimes it can be positive, as was the election of the Hawke Labor Government in Australia in 1983. This led to virtually immediate steps taken to implement the ALRC proposals on insurance contracts and privacy law reform. However, it can also be very damaging to the reform process, as Professor Partington explained in the case of the Law Commission’s recommendations for reform of the law on housing. A new generation of politicians and officials had to be educated on the proposals. And time eventually ran out.
13. Full-time staff and volunteers
Law reform agencies have always invoked the assistance of volunteers, most especially part-time commissioners, consultants, academics, experts and community groups. Yet the big change that was introduced in the 1970s was a shift in the appreciation that the core functions of the agency needed dedicated, full-time personnel, both commissioners and staff. A worrying feature of the current trend has been the noticeable shift back to volunteers.
The demands that can be placed upon volunteers are necessarily more modest, as explained by Professor Kate Warner (Tasmanian Institute) and Ms. Hughes (Ontario). Anyone wanting to maintain a facade of law reform activity, whilst spending virtually nothing on it and ensuring that the output would never seriously burden the decision-making capacity of government, will return to the safe haven of part-time volunteers. Those who see the challenges of law reform as larger and more urgent, will regard such a shift as deleterious and retrograde.
14. Social justice and lawyers’ law
The realities of small part-time bodies is that normally they will, effectively, be restrained from entering upon large-scale projects that would involve social science research and questioning of fundamental values in the law. Of course, a more modest conception of the role of law reform will tend, at least for a time, to present fewer challenges to governments and officialdom. However, the difficulty of this approach is that the larger and more controversial challenges of law reform may then be neglected or ignored altogether. Or powerful interests in society (such as the print media in relatively few hands) will mobilise a bullying campaign to prevent politicians and officials tackling the truly urgent challenges that confront society: such as media invasions of individual privacy, telephone hacking, highly partisan reporting and excessive political manipulation.
To examine issues of this kind, unless ad hoc enquiries outside the bureaucracy are to be established, it is essential to have a regular system of law reform which, like the judiciary, will be independent, of powerful interests courageous and thorough and thereby of greater support and assistance to the law making institutions of society.
One of the features that flourished after the first wave of Scarman-model law reform agencies was the exchange of information and materials between professional law reform bodies throughout the English-speaking world. Whilst this no doubt continues to some extent and is enhanced by the internet, the cutbacks in resources made available to law reform agencies, have reduced the personal and other exchanges. Whilst Professor Michael Tilbury is correct to say that, it is not, as such, one of the functions of a law reform agency to support governments and law reform agencies in other places, the common language, similar legal systems and institutions and shared professionalism was a distinctive advantage of the growth of institutional law reform that is now under threat.
It is not sufficient that a report should be implemented in other jurisdictions (as the ALRC report on Human Tissue Transplants was copied throughout South America), the sharing of reform proposals reflected the identical problems faced by differing countries at roughly the same time and often because of much the same technological and social stimuli. Contacts between professional law reform agencies, across national borders, helped many with the efficient discharge of the law reform task. The same level of co-operation may not exist between officials working solely for the executive government of their own jurisdiction.
16. Enhanced and diminished consultation
In the context of the Ontario agency, Patricia Hughes explained the steps that are taken to consult vulnerable groups or categories of the population who may need special help to be able to express their experience and explain their concerns about the current law. In Canada, this includes, for example, a true dialogue between Anglophone and Francophone citizens and lawyers. It also includes, in particular projects, the need to consult children, migrants, deaf and otherwise impaired physically citizens and groups. Although government will increasingly be obliged to take such measures seriously, law reform agencies pioneered the diverse processes of public consultation. By thorough procedures to test the waters and to secure widespread feedback, the chances of achieving long-term reforms were greater than the situation where, traditionally, the changes were worked up internally by hard-pressed officials, often working to a severe deadline.
17. The need for crises
Allan Chiang, describing the acceptance of privacy law reform in Hong Kong, in the context of data protection, described the beneficial impact of the European Union Directive on privacy that presented a danger that Hong Kong might lose access to personal data because it was unable to guarantee effective legal protections for data privacy. ‘There is a need for more crises’, he said. Certainly, where a law reform report dovetails successfully into a solution for a current matter of high controversy, there is a greater chance of action to implement the report. It should not, perhaps, be so. But these are the realities of the ways in which law is conceived, evolves and is developed in common law countries.
The Law Commission idea was aimed at providing institutional mechanisms that would make the process of law reform more logical, systematic and effective. Yet is the flame that was lit by Lord Scarman only flickering now? What can be done to restore it to full force?
Marginal utility and marginal costs
If, as we were urged in this dialogue, we reflect upon the impediments to institutional law reform disclosed during these discussions, we will come to a number of conclusions.
First, law reform is not the most important challenge for society. Large social and economic reforms are often stimulated by international movements and by events that have little to do with the law at all. Even in the world of law reform itself, at least some enquiries will conclude that no change to the law is required. This was the result to which the ALRC came when it investigated the possibility and need for introducing systems of inquisitorial procedure in the place of the adversarial tradition of the common law. The ALRC concluded in favour of the status quo.
Likewise, some changes that are required in society are purely administrative or economic. It is a mistake to consider that a law reform project has failed if it does not result in legislation. All of this being said, the fact remains that some changes in legislation are required from time to time and the current procedures are simply inadequate and too slow to adjust and update the legal system in a way that will effectively renew it, modernise and simplify it, and adapt it to a rapidly changing global environment. This is where the shoe currently pinches. An efficient law-making system would deliver more effective machinery for regular change and improvement in the law.
Secondly, once law reform is achieved, it is a mistake to believe that it is accomplished forever. A failing even of the Scarman model was the inadequacy of the institutional attention to follow up and auditing law reform legislation to make sure that it continues to be relevant and effective. This too constitutes a continuing institutional failing of the operation of law-making in contemporary societies. It is a particularly acute failing in common law countries because the underlying legal system is built on the model of judge-make law. This responds in a pragmatic way to individual problems brought to the courts. At least the civil law system proclaims a search for underlying broad concepts. In the common law world, the legal system is a kind of chaos, that tends to disdain codification. It is highly detailed, particular and technical. It therefore presents greater challenges for institutional renewal. Unfortunately, the institutions of renewal frequently fail to deliver.
Thirdly, the most serious defect in the model of institutional law reform developed by Lord Scarman, was its failure to provide an effective process to translate the proposals in law reform reports into parts of the living law.
This omission was not the fault of Scarman, as such. It was just assumed that, when thorough processes of investigation and consultation were concluded, the well-reasoned suggestions of such accomplished commissioners would be quickly translated into action by a grateful legislature. The dangers in that assumption were drawn to notice in the first annual report of the ALRC in 1975. Even then, at the very outset of well-funded institutional law reform, priority attention was urged to the question of implementation. Various efforts were made in that direction in Australia. They were sometimes supported and encouraged by the Parliamentary Committees on Constitutional and Legal Reform. At one stage, they procured an undertaking from the Hawke Government to provide responses to law reform reports, one way or the other, within a short period. However, these became somewhat formal. And then they faded away.
In New Zealand, a similar process evolved in relation to the reports of the Law Commission of that country. But its implementation showed, once again, that a great deal depended on the personalities, commitment and interest of the relevant ministers. These were to prove variable.
Appropriately, perhaps, the greatest progress in this area has been achieved, and that quite recently, by the Law Commissions in the United Kingdom. In March 2010, a protocol was agreed between the Law Commission of England and Wales and the Government, with a view to improving the rate at which Law Commission reports were implemented. The protocol was not withdrawn when the Brown Government was defeated and replaced at the general election by the Coalition Government led by Mr. David Cameron.
In devising its eleventh programme of law reform, published on 20 July 2011, the Law Commission of England and Wales worked in accordance with the protocol. As yet, it is still uncertain as to whether the protocol will operate successfully. This will only be known when the projects started under the protocol have been reported and the government of the day responds as was contemplated. The idea is that the heightened government support for the Commission’s projects and the requirements for liaison during the lifetime of those projects would ensure that the reports were implemented more often and more quickly. According to the information received, the government departments in the United Kingdom have so far been following what they needed to do under the protocol. In its terms, the protocol stated that it would be applied “as far as possible” to projects then already in the pipeline. The response to this promise has apparently been disappointing because the British Government has not, so far, been able to meet the requirements for responding to reports, either on an interim basis (as soon as possible or within six months) or finally (as soon as possible or within 12 months). However, hope springs eternal. None of the reports published since the signing of the protocol, and for which a response is due in the stated time scales, has yet been treated in such a way.
The first of the reports by the Lord Chancellor to Parliament on how matters stand on the unimplemented reports of the Law Commission, was presented by him in January 2011. There was some degree of disappointment in the lack of information then provided. However, it is still hoped that the time will come when this annual procedure will become a useful additional way of ensuring that the Commission’s reports are not forgotten. Moreover, the fact that a report is made to Parliament will hopefully provide an opportunity to government and opposition members to call the government to account.
The introduction of these changes in the United Kingdom is definitely a step in the right direction. Still the problem remains of securing governmental attention and focus upon an agenda which has essentially been fixed elsewhere and may not accord with the priorities of the government’s own agenda. In the United Kingdom, at the moment, the Government’s agenda involves its declared determination to restore the country’s financial position. The Law Commission has played its part in this process by reducing its budget by 5% in 2010/11, and by accepting a reduction in the grant from the Ministry of Justice of 25% over the ensuing four years. It is hoped that this reduction (comparable to that faced by the ALRC in Australia) will be mitigated in Britain by the Commission’s ability to attract income from other government departments.
Good news has followed with the approval by the House of Lords of the procedure for considering Law Commission bills. These followed a pilot run in which two Bills, drafted by the Law Commission, were placed on the statute book in accordance with the semi-automatic procedure adopted for such consideration. These were the Perpetuities and Accumulations Act 2009 (UK) and the Third Parties (Rights Against Insurers) Act 2010 (UK). A third measure, the Consumer Insurance (Disclosure and Representations) Bill 2011 (UK) is currently proceeding through the House of Lords. It is hoped that another Bill, the Trusts (Capital and Income) Bill 2011, will be introduced this year. The object of this procedure is to allow uncontroversial and technical Law Commission Bills to proceed by way of second reading debate in a committee room rather than on the floor of the House of Parliament. Time on the floor of the House is always at a premium. In the United Kingdom as elsewhere, the new procedure is hoped to allow more such Bills to be taken forward. It all depends on the selection of uncontroversial and technical programme items and acceptance of the procedures by those who have the power to stop it.
From the foregoing, it is clear that some progress is being made in Britain, inch by painful inch, in improving the parliamentary machinery of law-making to cope with the modern necessities of institutional law reform. It has not yet reached a post-modern era in the United Kingdom. However, if the protocol agreed between the Government and the Law Commission operates to produce a speedier ministerial acceptance of reports, with prompt moves towards legislation, Bills drafted in the Commission will be able to go through the Law Commission procedure in Parliament or to be picked up immediately by the relevant Departments of State. If all of this can come together, it will be a distinctive step forward. It will be one that gives encouragement, inspiration and a model for institutional law reform agencies elsewhere in the world.
Throughout the English-speaking world, the growth of the functions of government and of its complexity has imposed enormous burdens on legislators. Those burdens meet an absolute barrier when they effectively make demands upon legislators which exceed those that reasonably be imposed upon them as human beings. Moreover, as elected officials, they must constantly be engaged with the society they represent. This is why the search is now on for machinery of law-making that can expedite effective responses to law reform reports and provide fast-track mechanisms to implement those reports into law, particularly where the proposals are of a technical and non-controversial kind.
Even where there is some risk of controversy in a report from a law reform agency, the position is now surely approaching in our law-making mechanisms that the slow, highly particular and individual examination of reform proposals has become, in itself, part of the obstacle to translating those proposals into action. Eventually, an economic equation has to be considered in the social context to which law responds. Is the marginal utility of such individualised consideration of detailed proposals that have already been examined most closely by a law reform agency equal to or greater than the marginal cost of the delay in justice involved in such examination; and the risk of inertia and complete failure of the law-making process?
When the answer to this last question is in the affirmative, attention begins to shift to two procedural reforms in law reform that will facilitate improvement of the process of law-making. The first is a restoration of the procedure still followed in the Law Commissions in the United Kingdom, and originally followed in the ARLC, of providing draft bills with all reports where legislative reform is recommended, so as to expedite implementation and to ensure consideration of the relevant governmental choices. Secondly, there is a need for two further procedures for implementation of law reform proposals. The first is the traditional, full debate procedure. The second, for non-controversial and technical matters, is a fast-track of the kind now being implemented experimentally in the United Kingdom.
Those who are concerned with the effectiveness of law-making and the continued relevance of electoral democracy in a complex world of enormous ongoing change will turn their attention to this institutional need for adjustment. Without such adjustment, our legislators will be of increasing irrelevance to a large portion of law-making in society. They will increasingly fail to deliver on the urgent needs of law reform presented to society by technology and social change. They will render even more fictitious the assumptions that electoral democracy can serve a modern, complex, dynamic and changing community effectively. They will put great pressures on other law-makers (such as courts and officials) to remake the law whilst pretending otherwise.
It is because these are large questions, effectively about the effective operation of elected institutions and maintenance of the rule of law in contemporary society, that they deserve close attention. And action. This is needed not only by those who are engaged in, and committed to, institutional law reform. It is required by all those who truly respect elected legislatures; favour the rule of law; and seek to promote their continued relevance to today’s world of complex and rapid change.
The issues facing legal reform in Hong Kong arise in a somewhat unusual and peculiar constitutional setting. They are therefore distinct, special, even unique. However, because the issues are shared by every modern community, as it seeks to reconcile democratic institutions with contemporary realities, the subject matters of this dialogue are as important in Australia, Canada and the United Kingdom as they are in Hong Kong and in many places beyond. Progress is being made. But it is very slow, uneven and in some places non-existent.
When the challenges seem overwhelming, daunting and discouraging, we can look about us in Hong Kong to the mighty changes that have been achieved both here and in a China in a mere hundred years. Then we can take encouragement from the astonishing capacity of the human species to adapt to changing times and to be a force for change and hopefully for human and environmental betterment.
 The Law Commission Act 2009 (UK) http://www.legislation.gov.uk/ukpga/2009/14/contenst.
The protocol http://www.justice.gov.uk/lawcommission/about/381.htm.
Lord Chancellor’s Report to Parliament: http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/publications/report-law-commission-proposals-jan-2011.htm.
Law Commission’s annual report 2010/2011 http://www.justice.gov.uk/lawcommission/publications/annual-reoports.htm
Law Commission’s 11th Programme of law reform: http://www.justice.gov.uk/lawcommission/publications/programmes-law-reform.htm
Law Commission’s work 2011-2015: http://www.justice.gov.uk/lawcommission/publications/programmes-law-reform.htm.