I move: "That the Bill be now read a Second Time."
Modern Governments who consciously undertake the task of reforming society have many means available to achieve this end. Taxation policies can be used to redistribute wealth; physical resources can be so allocated as to help the most needy; social welfare, health and education policies can be so formulated as to alter radically unjust social conditions. A series of comprehensive and systematic well-conceived programmes of law reform is yet another means available to a Government which wishes to reform a society for which it is responsible. In present times virtually every important and significant private, economic and social relationship is conditioned and controlled in some way by our great body of laws and legal rules.
Laws affect the citizen as a member of a family, as consumer, as tenant or property owner, as employee or employer, as a party to a contract as victim of a tort, as participant in court proceedings, as vendor or purchaser. If a community's laws become inadequate for the functions for which they were designed, if they become obsolete, or are too numerous, or over-refined by judicial interpretation, then cases of individual injustices will multiply and society as a whole will suffer. Governments in a dynamic fast-changing world should ensure that the laws are kept under constant review and are regularly and systematically reformed.
It should, of course, be made clear that the proposed legislation which the House in considering is concerned with the concept of law reform, a term which has a distinct and definable meaning. It is used, generally, to refer to the activity of reforming laws which require legal knowledge and expertise if reforms are satisfactorily to be effected. Obviously many legislative changes or innovations which could properly be classed reforms in the law require no specialised legal knowledge to bring them about; an alteration in the age qualification for the old age pension, or alternations in the local authority tenant purchase schemes do not require a law reform commission to assist in their enactment.
There are, however, many areas of possible legislative action which would require expert legal knowledge for adequate action to be taken. It is with such areas that this Bill deals. These are not confined to what is sometimes referred to as "lawyers law", that is to say laws with a highly technical content of concern to a limited group of persons only. Law reform in the context we are now discussing will deal with reforms in the laws relating to some of the most important matters of widespread interest and concern—laws relating to the family, laws relating to consumer protection, employer and employee relationships, landlord and tenant matters, the rights of persons suffering from personal injuries and many aspects of the citizens basic human rights.
I feel that there will be general agreement that there is a constant need to develop and implement detailed programmes of law reform. The Bill before the House proposes an institutional framework which would, it is submitted, assist in such development and implementation. The framework suggested is basically similar to that adopted in England and Scotland by the Law Commission Act, 1965, in Canada by the Law Reform Commission Act, 1971, and in Australia by the Law Reform Commission Act, 1973. It is necessary to have an agency for law reform capable of reviewing the law as a whole; it is desirable that the agency should be at once impartial and expert; it should be composed of persons engaged full-time in the task of law reform; it should be able to consult freely with members of the legal profession and obtain the assistance of outside experts from other disciplines; it should command respect; it should work in close co-operation with the Government and through the Government with Parliament. These diverse and wholly desirable ends can best be achieved by the establishment of a Law Reform Commission on the lines suggested in the Bill before the House.
Whilst the commission which is now proposed will be independent and adopt its own procedures it is certain that experience gained elsewhere will be utilised. In the light of that experience it can be anticipated that the commission will operate, broadly, on the following lines. The five commissioners will be assisted by a full-time professional staff. Obviously legal knowledge and expertise will be necessary to examine the legal problems with which it will be seized, to draft reports and prepare legislation. Equally obviously the assistance of outside experts from other fields, such as the social sciences, would greatly facilitate the work of the commission and it can be anticipated that such experts can be associated with the commission in some appropriate form. The commission will make proposals from time to time for the examination of the laws with a view to their revision and programmes prepared by the commission will suggest how such examination should be carried out, that is to say whether the commission itself should undertake the work or some other agency or body, for example a Government Department or a special committee established for the purpose.
The commission will no doubt seek to achieve the maximum amount of consultation with members of the legal profession, other experts and interested members of the public on projects undertaken by it and in this connection it may seek the assistance of established expert agencies such as the Economic and Social Research Institute. It may, in this connection also, issue working papers which will analyse a particular problem with which it is concerned and which will outline the commission's provisional views on possible solutions to it. Following consultation the commission would then submit a report which would embody its own considered proposals, giving reasons for them and, it is hoped, incorporating its recommendations in a draft Bill. Its staffing policy can be flexible so that it can, in addition to full-time staff, employ special experts on special subjects for limited periods.
In addition to the preparation and implementation of its programmes the commission should be able to undertake special reviews from time to time of particular problems which may not have been included in its programmes but which require its urgent and expert attention. It should publish annually a report which, together with its programmes and reform proposals, should be laid before both Houses of the Oireachtas to facilitate discussions and comments on its work and on matters relating to law reform generally.
I have mentioned in passing the importance of co-operation between the commission and the Government and, through the Government, the Oireachtas. Such co-operation is of great importance; indeed it is crucial to ensure the speedy formulation and implementation of law reform. The commission is to be independent in the proposals which it formulates but such independence will not preclude close liaison with the Government in this field of law reform. The skills and knowledge available to the commission will eminently qualify it to advise and consider the programmes of law reform to be undertaken and whilst it is clear that the Government must approve such programmes—it must accept ultimate responsibility for priorities in this field—the commission's independence is not affected by this fact and its considered expert professional judgment will be given without fear or favour. Its link with the Administration will be through the office of the Attorney General. The reasons for this are readily understandable. The Office of the Attorney General advises all Government Departments and is uniquely situated to appreciate the needs for legislative changes which become apparent from the work in the office. A free flow of information between the Government and the commission will be made possible by the arrangements which are envisaged.
It will be widely appreciated that the tasks facing the commission are considerable and formidable. As most members of the public have their own particular idea of which branch of the law needs immediate reform, it is obvious that it will be difficult to find widespread agreement as to what areas of law should first be tackled in the commission's initial programmes. A start however must be made and it is believed that the institution proposed in this Bill will in a comparatively short space of time be a means for bringing about desirable and significant reforms in the laws of our country.
Before turning to the details of the Bill it is right that this opportunity be taken to pay tribute to the small group of officials in the public service who have in the past been involved in law reform; to the members of the Judiciary, both branches of the legal profession and academic lawyers, as well as lay people, who have in the past contributed to the work of committees engaged in reforming some aspect of our laws. It is right, too, to give public acknowledgement to the members of the Judiciary who have in the past, interpreted our laws in a humane and liberal manner so as to help, in so far as their office would permit, this development in accordance with the current social concepts.
I should now like to deal briefly with the principal features of the Bill before the House.
It will be noted that the definition of "the law" contained in section 1 is a wide one. "The law" which the commission is to keep under review, and in respect of which it is to prepare reform programmes, includes all the law of the State and embraces private and public international law as well as matters of legal practice and procedure. I am sure it will be agreed that it is desirable that the commission should have the widest possible terms of reference given to it by the Act.
The term "reform" is also given a wide definition in section 1. Law reform is often regarded as a process of updating laws by means of statutory amendments. It should have a wider connotation under this Act. The commission should not be excluded from considering and formulating proposals for codification which would result in the simplification and modernisation of our laws. It should also be able to make proposals for the revision and consolidation of statute law. The statute law reform and consolidation office will of course be unaffected by this Bill, but the commission's programmes may indicate specific areas in the field of statute law revision and consolidation in which it considers the office should be involved.
Under section 2, the establishment day is to be appointed by the Taoiseach. It is to be hoped that appointments to membership of the commission will be made as soon as possible after the Bill is enacted and that it will be possible to appoint the establishment day within a short time thereafter, so that the commission can begin its important work without delay.
Section 3 provides for the establishment of the Law Reform Commission and its constitution. Section 4 provides for its functions. The commission is to comprise five persons, one of whom is to be its president, appointed by the Government. Subsection (7) is to be read in conjunction with section 14, which latter section will provide that, if a judge of the High Court or the Supreme Court becomes a member of the commission, an additional judge may be appointed. This power is necessary to avoid the possibility of delays which could otherwise result from the reduction in the number of judges available to fulfil judicial functions in the courts. In this connection it is to be noted that a judge who acts as a commissioner will not cease to hold judicial office but he shall not be required to perform his duties as the holder of judicial office while he remains a member of the commission.
It is recognised in subsection (7) that, apart from members of the Judiciary or members of the legal profession and academic lawyers, persons with qualifications other than those of a legal character could contribute to the work of the commission, and subsection (7) is so drafted as to permit the appointment in appropriate cases of such persons to membership of the commission. In addition the commission will itself have powers which will enable it to employ experts in the social sciences if it considers it helpful to do so. It is considered desirable to provide for a flexible approach to the terms on which commissioners are to be appointed. Whilst full-time appointments are obviously desirable, it must be recognised that special circumstances may require that some, at least, of the commissioners should act in a part-time capacity.
Subsection (8) will permit such a flexible approach. It also places a limit of five years on the term of office of a commissioner as lifetime appointments might not be conducive to the attainments of the tasks which the commission will be established to fulfil.
The commission is to be an independent body. It is right therefore that it should be free to regulate its own procedures and business as it thinks proper and this is so provided for in subsection (14) of section 3. The remaining subsections are formal and require little comment at this stage. As a matter of practical convenience the commission is to be a body corporate and the section gives the commission the necessary powers ancillary to a body with such a status.
Section 4 sets out the commission's functions. It is to keep the law under review. It is empowered, in accordance with the provisions of the Act, to undertake examinations of the law, conduct research with a view to reforming the law and to formulate proposals for law reform. One of its most important functions will be the preparation, from time to time and in consultation with the Attorney General, of law reform programmes for submission to the Government. It is important to have a planned and systematic approach to law reform. It is important to define clearly priorities in the field of law reform and to sensibly allocate scarce resources both of skills and money. The commissioners' qualifications will ensure that their tasks are expertly fulfilled.
The law reform programmes will not only recommend the particular branches of the law which should be examined with a view to reform but should suggest the agency which should carry out such examination and formulate proposals. For example, a programme might suggest that an existing committee could undertake an examination of a particular branch of the law or it might suggest that the commission itself should do so or that a special committee be established for the purpose. When required to do so by the terms of an approved programme the commission itself is empowered by subparagraph (b) of subsection (2) to undertake an examination of and conduct research and formulate proposals for law reform. The commission's proposals will in the first instance be transmitted to the Taoiseach who, as head of the Government, can decide how best they should be submitted thereafter to the Government and which should be the sponsoring Department.
Subparagraph (c) of subsection (2) of section 4 is included so that the assistance of the commission can be sought from time to time in areas not included in an approved programme. A decision of the Supreme Court may bring to light an anomaly in the law as a result of which immediate legislative action is desirable. A proposed development in the secondary legislation of the European Communities or in the rules of public international law may require the sort of expert examination which the commission could bring to bear on the problem. These are examples of instances in which the provisions of the subparagraph could be utilised.
I should like to draw particular attention to subsection (3) of section 4. This is an important subsection. It would obviously be impracticable, and in any event undesirable, to lay down by statute rigid procedural rules which the commission should follow in the fulfilment of its tasks. It is however desirable that the Oireachtas should set out certain guidelines for the consideration of the commission which the Oireachtas considers might assist it in carrying out its statutory responsibilities. These guidelines are set out in this subsection. It is suggested that the commission might receive proposals for law reform from members of the public, which would of course include members of the Oireachtas, and that it would consider such proposals for inclusion in any programme for law reform which it may formulate. Obviously most lawyers, many lay people and probably all engaged in social work have ideas as to what areas of our laws call most urgently for reform. It is equally obvious, as I have already pointed out, that it will be impossible to adopt every suggestion, no matter how meritorious it may be. The views of interested members of the public would however clearly be of assistance to the commission in assessing correct priorities and degrees of urgency of particular reforms. For these reasons subparagraph (a) of subsection (3) has been inserted.
It has been considered desirable to express in subparagraph (b) of this subsection the view that the commission need not feel constrained in any way by the legal system which pertains in this State and this subparagraph suggests that if it considers it appropriate so to do the commission should examine the legal systems of other countries. There are many aspects of the Scottish legal system and of the legal systems of our EEC partners which would repay careful examination for the purpose of formulating suitable reforms in the laws of this country.
Experience both in this country and elsewhere shows that inordinate delays may occur between the presentation by a commission or committee of its report and the implementation of its recommendations in legislation. Delays of this sort can be considerably reduced if the report contains a draft Bill incorporating its recommendations. It must be recognised that a shortage of skilled draftsmen may hinder the implementation of subparagraph (c), but it is hoped that ways of overcoming this difficulty may be found.
Subparagraph (d) refers to consultation between the commission and outside qualified persons, subparagraph (e) to the establishment of working parties and advisory committees, subparagraph (f) deals with the publication of preliminary working papers prior to the final formulation by the commission of its reform proposals. These subparagraphs are interlinked and are informed by a common concept. It can be laid down as a general rule that the greater the degree of preliminary consultation that occurs the better will be the final proposals for reform and the speedier will be their implementation.
Obviously the nature and degree of consultation will differ from subject to subject; the views of members of the legal profession, academic lawyers, as well as those with specialist qualifications in the subject under examination would obviously assist the commission in the preparation of its proposals. Such views can be obtained by means of the establishment of working parties and advisory committees as well as by the publication of preliminary working papers on which views of professional bodies and others will be sought. The different ways in which consultation may take place are obviously matters for consideration by the commission itself. The Bill outlines in these subparagraphs some of the ways in which the commission may operate and, by so doing, expresses a point of view in which the commission will, it is believed, fully concur.
Section 5 provides that after a programme has been approved by the Government a copy of it is to be laid before both Houses of the Oireachtas and section 6, which makes provision for the submission of an annual report by the commission to the Attorney General, likewise provides that the annual report which is to be submitted to the Government will be laid before both Houses of the Oireachtas. Procedures contained in these sections will not only ensure that Members of the Oireachtas are kept informed of the work of the commission and the progress of law reform undertaken by it but also should afford an opportunity for debates in both Houses on appropriate occasions.
Sections 7, 8 and 9 make provision for the financial aspects of the establishment and operation of the commission. The commission's expenses will be met out of moneys provided by the Oireachtas by means of grant or grants—section 8. The Attorney General will have special knowledge and experience which will enable him to express a recommendation to the Minister for Finance in the budgetary proposals which the commission may make each year. The accounts of the commission are to be submitted annually to the Comptroller and Auditor General for audit in the usual way.
The remaining sections of the Bill, other than the section dealing with the Short Title and section 14 to which reference has already been made, make provision for and in relation to the staff of the commission. In accordance with the independent status which the commission is to enjoy, it is provided by section 10 that the commission is to appoint its own officers and servants. In so doing it will consult the Attorney General, and the numbers of officers and servants which it may appoint are to be subject to the approval of the Minister for the Public Service. A distinction is drawn between the clerical staff, to whom the Civil Service Commissioners Act, 1956, and the Civil Service Regulation Act, 1956, will apply and other officers and servants of the commission. Because of the nature of the work which the commission will be undertaking it is considered desirable to allow the commission considerable flexibility in the appointment of its professional staff.
By virtue of subsection (2) of section 10, the commission may engage a person in a part-time capacity and by means of the payment of fees rather than on a salary basis. It is easy to envisage circumstances in which the commission might wish to retain the services of a professional person for a limited period on a fee basis, or in which an academic lawyer may be seconded to the commission for a particular task and so it is important so to legislate that the commission will be empowered to function in this way.
Subsections (4) and (5) of section 10 refer to a situation which could arise in the expansion of the staff of the commission. While these subsections do not permit any interference in the independence of the commission in their choice of staff, it was considered desirable to provide that, in the circumstances set out in these subsections, appointments may be subject to methods specified by the Attorney General. It is, for example, possible to contemplate a situation in which it may be desirable to provide for the advertisement of posts and for the selection of officers by means of an interview board, examination or otherwise.
Sections 11 and 12 deal with the making of superannuation schemes for the Commissioners and for the whole-time officers of the commission. The provisions of these sections are in the form usual in enactments of the sort now being considered and do not call for any special comment at the present time. Section 13 will render it impossible for a person to be an employee of the commission and a Member of either House of the Oireachtas at the same time. It would appear to be clear that employment with the commission would not be compatible with the duties of membership of the Dáil or Seanad and thus it was considered necessary to insert the provisions contained in section 13.
I believe that this Bill, in time, will prove an important means for the improvement of many aspects of Irish society and I would hope that this view would be shared by Members of this House.