The Provision of Legal Services to Government
13 Pages Posted: 12 Dec 2012 Last revised: 22 Feb 2015
Date Written: 2000
This lecture discusses law reform and the organisation of legal services within the New Zealand Government. The most difficult challenge for any government is the achievement of coordination and integration of its policies. The pervasive character of overall legislative and constitutional policy makes the task of integration still more difficult. If one examines the law enterprise within government, one cannot find a principled distinction between litigation, legal advice and opinion writing, and legislation (whether delegated or Act of Parliament). Legal policy within the Government also crosses all department boundaries.
The manner in which the legal services are delivered to the Government is deficient in multiple ways, the most pressing of which is structural. Legal services within the Government have been restructured and Balkanised so that by the time a problem reaches the Crown Law Office, it is sometimes too late to rectify. Serious policy failures are not being addressed because no one organisation has responsibility for addressing them. The author recommends reorganising multiple offices into one department known as the Law Department and giving that department responsibility for providing legal advice as well as control functions in respect to the legal activities of other departments. This would ensure that one department gains authority and responsibility for the efficiency and effectiveness of the provision of legal services. This recommendation is not engaged in for its own sake. Ministers need and deserve better and more comprehensive strategic advice than they can obtain from the existing disparate structures.
The author suggests that many Crown entities should be abolished or returned as departments of State. Current work on reforming Crown entities is being done by Treasury and the State Services Commission. The problems in the system are structural, legal, constitutional and legislative. These agencies do not have expertise in these areas and are not therefore the appropriate instrument to carry out reform. The Government is entitled to have an agency capable of advising on those issues in a comprehensive, competent and strategic manner.
The only way to achieve such appropriate constitutional and legal standards may be to adopt a written constitution as higher law. A written constitution brings with it a degree of prominence and permanence that a code of legislative practice is unlikely ever to approach. It also entrusts ultimate responsibility for governmental standards with the courts, rather than with a bureaucratic agency of necessary vulnerability.
Keywords: law reform, legal services, policy, Crown entities, government, constitution
JEL Classification: K19, K39
Suggested Citation: Suggested Citation