Programme of law reform must identify priorities

Mon, Dec 17, 2012, 00:00

When the Law Reform Commission was set up in 1975, then attorney general Declan Costello intended to establish an institution similar to those already established in other common law jurisdictions which would systematically examine some of the most important matters of widespread interest and concern making proposals for their reform.

He instanced laws relating to the family, consumer protection, employer/employee relationships, landlord and tenant matters, the rights of persons suffering from personal injuries and citizens’ basic rights.

The idea was that there would be a systemic and wide-ranging approach to law reform by an independent body removed from urgent demands and political pressures. It was considered in the Oireachtas debates that ministers would be “more willing to accept patently correct suggestions” in a draft Bill attached to a commission report. Since its establishment, 70 per cent of the commission’s recommendations have been implemented in legislation.

The Act giving the commission this job defined “reform” to include “its development, its codification (including in particular its simplification and modernisation) and the revision and consolidation of statute law.” The statute book grows continuously: over 3,000 Acts have been enacted since the State’s foundation in 1922; and over 1,000 pre-1922 Acts remain in force.

The importance of reform, allied to consolidation, is therefore clear. The size of the statute book and the fact that the rules relating to a particular branch of the law can range across many legislative instruments mean not only that it is impossible for an ordinary person easily to find and understand the rules but also that the state of the law may not be clear even to the Oireachtas and specialists.

Sometimes the Oireachtas produces laws in the form of statutory consolidation or mini-codes for particular branches, for example, the Civil Liability Act 1961 or the Taxes and Social Welfare Consolidation Acts; but it often legislates in piecemeal fashion reacting to particular and recent events. In seeking to ensure that law be presented as coherently as possible, the commission has produced draft mini-codes of law such as in relation to non-fatal offences against the person, public order offences, land and conveyancing law and the Courts Acts.

Mr Justice Gerard Hogan spoke at the commission’s annual conference last week of the need for “a more systematic statute book, less impenetrable legislation and greater democratic accountability”. Other speakers at the conference called for clarity of the law relating to financial services regulation in particular.

The courts interpret the law and apply it according to the Constitution, the common law and, where relevant, European law principles, reforming it in the process. However, law reform founded on court decisions is inherently inadequate because courts cannot address difficulties that have not come before them in a case. Reform by the courts cannot therefore be systematic or comprehensive as the courts cannot legislate.

The commission is now developing its Fourth Programme of Law Reform. It is consulting with civil and political society and has already received nearly 40 responses with over 130 proposals for reform. Involving the community, government and public bodies in the selection of areas for law reform ensures that the commission identifies issues that are really in need of reform.

In choosing what to include in the new programme the commission must prioritise those reforms which are important and not just policy changes more appropriately decided by government and the Oireachtas without additional research from the commission. Ideally, a reform project should address a branch of the law and lead to a comprehensive statement of it that can be understood by the informed reader.

Such reform projects might be ones which react to existing law which has been found to be wanting. An example from the commission’s previous work is its examination of the Lunacy Regulation (Ireland) Act 1871, an old law which regulates the adult wards of court system and which remains in force unadapted to contemporary national or international standards concerning adult capacity and decision-making. (The commission’s recommendations to address this issue will be implemented in the Government’s forthcoming Assisted Decision Making (Capacity) Bill.)

At the commission’s conference, Paul Appleby, former director of corporate enforcement in Ireland, identified the need for reforms to the legal framework to enforce financial services legislation and prosecute white collar crime.

To fulfil its role, the commission also needs to undertake projects which are directed towards proposing a legislative framework whereby important changes in society can be anticipated, putting in place laws to address longer term needs.

For example, a rapidly developing cyber world needs comprehensive regulation. It has implications for a variety of human activity in the worlds of finance and commerce, privacy and information, in relation to such matters as bullying and harassment, human trafficking, criminal prosecutions and the laws of evidence, including discovery. Indeed it is difficult to imagine many areas of human activity unaffected by the cyber world and its international nature presents particular legal difficulties.

The commission looks forward to further submissions from interested parties that will provide us with challenging and important areas to review, out of which proposals for reform will emerge that address the needs of Irish society.

Finola Flanagan is commissioner of the Law Reform Commission

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