The complexity of the law is a mess, says Chief Justice

Ireland has 99 different bodies with regulatory functions

Chief Justice Frank Clarke: some elements of the law, particularly environmental law, have become so complex that not even expert planning lawyers can make sense of them. Photograph: Brenda Fitzsimons

Chief Justice Frank Clarke: some elements of the law, particularly environmental law, have become so complex that not even expert planning lawyers can make sense of them. Photograph: Brenda Fitzsimons

 

The lrish legal system has become extremely unwieldy due to the ever increasing numbers of regulatory bodies and appeal mechanisms, according to Chief Justice Frank Clarke.

Other elements of the law, particularly environmental law, have become so complex that not even expert planning lawyers can make sense of them, Mr Justice Clarke said on Wednesday.

The Chief Justice was addressing a conference of the Law Reform Commission conference, which is seeking submissions from the public as part of its fifth programme of law reform.

Mr Justice Clarke compared the law to a house that has been built “higgledy-piggledy” over the years; a new part of the house is built on whenever a new need is identified. The end result was a house that looks awful and doesn’t fulfil its function, he said.

The Office of the Ombudsman has 31 regulatory bodies under its remit, he noted. The Department of the Taoiseach lists 99 bodies that have regulatory powers in Ireland, not including local government bodies.

Judicial review

“It seems to me that what we have in Ireland is that every time there is a new form of right or obligation...we create a new regulatory body.”

He said that when a new body was set up, an associated appeal body was sometimes required. In some areas, there was a further right to appeal to the Circuit Court, in others to the High Court. Some bodies only allow appeals to the courts on a point of law while others allow an appeal on the merits of a case. And all parties have a right to mount a judicial review at any stage of the proceedings.

“I think we have got ourselves into the significant mess in this area. Perhaps the judiciary has played a role in creating this mess by creating concepts which make sense in a limited way but not quite so from a bigger picture point of view,” Mr Justice Clarke said.

‘Too unwieldy’

The current system of ad hoc bodies which are set up as the need arises is unwieldy, costly and “less likely to deliver on rights and obligations”, he said.

“It’s far too unwieldy. I find it difficult not to believe that a more streamlined, straightforward and simplified system would make it much clear for parties.”

Chairwoman of the Free Legal Advice Centre Eilis Barry said better decision-making process in regulatory bodies were needed, particularly in the area of social welfare appeals. Such bodies often have very high rates of appeal, she said.

Former attorney general and former minister for justice Michael McDowell told the conference that Ireland’s current legal system was “not sustainable” and that “the volume of cases is such that it cannot be managed”.

He asked why the regulatory bodies of professions such as nurses, pharmacists and dentists could not take steps to discipline a member without referral to the High Court.

Mr McDowell also cited the discovery process in civil cases as an area in which “we have overcomplicated our law”. He said he was aware of one case where the claim was for €250,000 and the discovery process alone cost €200,000.