Programme of law reform must identify priorities

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.