Proposal to abolish law reform body criticised

 

THE ABOLITION of the Law Reform Commission, as proposed by the McCarthy group, would be “a highly retrograde step”, according to the Director of Public Prosecutions.

“Proper regulation and proper laws are absolutely vital to economic development,” James Hamilton told The Irish Times. “For the savings involved, it would be absolutely crazy to get rid of it.”

Mrs Justice Catherine McGuinness, the president of the Law Reform Commission, said it was “very unfortunate” the McCarthy group had not spoken to the commission, as it was clear from the group’s report that it did not fully understand what its mandate and methodology were.

The McCarthy group’s recommendation comes in its section on the Department of the Taoiseach, which includes the Attorney General’s Office, responsible for funding the research and advisory body.

It says: “The group holds the view that the Law Reform Commission could be used in a more targeted way by moving away from the model of a permanent commission towards one in which the commission is reconvened as required to address government mandated reform agendas.” This would save €2.8 million, it says.

Mrs Justice McGuinness told The Irish Timesthat the commission already worked to a Government-mandated reform agenda. Each of its Programmes of Law Reform was agreed with the Government. In addition it was sometimes asked by the Attorney General to research a specific matter of law. “It is the Government’s programme of law reform,” she said.

Commissioner Patricia Rickard Clarke said if the commission was convened on an ad-hoc basis, it would lose all corporate intelligence. The commission was in a position to obtain legal expertise for little or nothing that would cost an enormous amount of money on the open market.

“Three of our members are part-time and are paid €25,000 a year. You would not get a leading practitioner to take a case for that.”

Before the commission even began outlining a project, the commissioners spoke to everyone with an interest in it, not only legal practitioners, but, as in the case of vulnerable adults, other specialists in the area and members of the public likely to be affected.

New laws they had proposed, such as that on multi-unit developments, required input from those living in them, along with the Government departments dealing with company law, planning law, consumer law and land law, she said.

The commission was able to combine the work of bright young researchers, who were not paid very much, with its own senior legal people and the commissioners and, through the consultation process, draw on the expertise of a wide range of senior people who gave their services for nothing.

During the consultations on the reform of land law, for example, people from both the public and private sectors came in for discussions on it at least once a month for three years, she said.

Mrs Justice McGuinness also noted that, ironically, many of the other McCarthy proposals had originated with the Law Reform Commission, including that digital recording be rolled out in the courts, that there be periodical payments in catastrophic personal injuries cases and that there be mandatory arbitration and mediation by State bodies.

Mr Hamilton said that in the past, the State had paid “through the nose” for not keeping its laws up to date. “An awful lot has been done” by the commission, he said.

“By and large they have pioneered all that reform of the criminal law. It is quite a cheap service for very high quality work. Criminal law is more or less up to date, but not our law on bio-ethics, for example.” This was exactly why there was a need for the Law Reform Commission.

Former Supreme Court judge Mr Justice Donal Barrington also said it “would be a shame” if the body involved in ongoing law reform was done away with, but he would be surprised if this happened in the light of its work.

Recent reforms

The Law Reform Commission says that 70 per cent of its reports end up in legislation. Some of the recent legislative reform is listed below.

  • Report on Multi-Unit Developments published in 2008. Multi-unit Development Bill published May 2009.
  • Report on Inter-country Adoption Law published in 2008. Adoption Bill 2009 at second stage in Dáil in June.
  • Report on General Law of Landlord and Tenant published in 2007. Landlord and Tenant Bill to be published.
  • Report on Spent Convictions published in 2007. Spent Convictions Bill 2007 was at the Committee Stage in Dáil in June.
  • Report on Vulnerable Adults and the Law published in 2006. The scheme of a Mental Capacity Bill was published in 2008.
  • Report on Rights and Duties of Cohabitants published 2006. Part 7 of the Civil Partnership Bill provides for cohabitants.
  • Report on Prosecution Appeals and Pre-Trial Hearings (2006) included recommendation for “without prejudice” appeals by prosecution. Introduced in 2006. Report on Establishment of a DNA Database published 2005. Scheme of Criminal Justice (Forensic Sampling and Evidence) Bill published in 2007.
  • Report on Reform of Land Law and Conveyancing published in 2005. Land and Conveyancing Reform Bill passed all stages in Dáil this month.
  • Report on Public Inquiries including Tribunals of Inquiry published 2005. Tribunals of Inquiry Bill 2005 passed all stages in Dáil in May 2009.
  • Report on Surveillance and Interception of Communications published 1998. Privacy Bill 2006 at second stage in Dáil in June; Criminal Justice (Surveillance) Bill published April 2009.