The Commission is chaired by the Secretary for Justice who, together with the Chief Justice, decides which aspects of the law should be referred to the Commission for consideration. These will normally be chosen from suggestions made by members of the Commission itself, the legal profession, the public at large, or the Administration.
Since its establishment in 1980, the Commission has considered a wide variety of subjects of varying complexity and breadth. There are no hard and fast rules as to which subjects are suitable for referral to the Commission, but a number of factors will usually be considered by the Secretary for Justice and the Chief Justice:
- Is there a problem or shortcoming in the law of general application? The problem or shortcoming should be identifiable, and should not be one which relates only to a particular individual or case.
- Are the issues raised more ones of policy than law? As a broad rule of thumb, a subject is not likely to be best suited for consideration by the Commission if the issues it raises are essentially ones of Government policy, rather than law or legal policy. While it would be unlikely, for instance, that the Commission would be asked to consider questions of taxation or immigration, as these are both areas where Government policy concerns predominate, that does not mean that the Commission could not be asked to consider the general policy issues raised in respect of a subject such as, say, the legal age of majority.
- Could the subject be more effectively considered elsewhere? Where there is a specialist body with expertise in the particular area of law in question, then the subject is unlikely to be referred to the Commission. So, for instance, the Standing Committee on Company Law Reform, or the Court Users' Committees, would be better placed than the Commission to consider company law or court procedural matters respectively.
- Is there a realistic prospect of implementation? The purpose of the Commission's work is to improve the law. Its resources are limited, and it would be wasteful of those resources to embark on a project if it was unlikely that any resulting proposals would be implemented. The Commission would therefore be unlikely to consider an area of law where the Government had clearly indicated that it saw no need for change.
In addition to these factors, the Secretary for Justice and the Chief Justice need to consider the question of timing, and decide when the Commission is able to take on a new project.