Dáil Éireann debate -
Tuesday, 4 Feb 1975

Vol. 277 No. 10

Law Reform Commission Bill, 1975: Second Stage.

Attorney General (Mr. Costello)

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.

Mr. G. Collins

I welcome the Bill on behalf of my party and I hope, with the co-operation of the House, that it will be legislation in a very short time. My party have proposed to the Government that the Committee Stage of the Bill be taken by a select committee of the House which I understand is to be set up this afternoon or whenever the Second Stage concludes.

The function now proposed to be passed to the Law Reform Commission referred to in the Bill was a function formerly performed by the Attorney General in his control of the law reform consolidation offices in the draftsman section of his Department. In the past few weeks the establishment of the office of Director of Public Prosecutions has relieved the Attorney General of all of the functions in relation to prosecutions formerly dealt with directly by the office of the Attorney General and by the Attorney General himself. This comprises approximately 75 per cent to 80 per cent of the work of the office.

I understand that prior to the advent of the Coalition Government the entire work of the Attorney General's office was carried out by the former Attorney General and two legal assistants so far as all matters other than the drafting of legislation were concerned. This meant the former Attorney General and two legal assistants dealt with all the work in relation to criminal prosecutions in the courts including the Special Criminal Court. They advised the Government and all Departments and, in addition, they prepared and dealt with preparations for entry into the EEC. They also prepared the entire preliminary work on the case of Ireland against Great Britain and its initiation at Strasbourg.

Following the change of Government, the present Attorney General had his staff augmented by four further appointments of experienced barristers, bringing the number of barristers as legal assistants in his office—quite apart from the parliamentary draftsman's office of the law reform and consolidation offices—to six highly qualified persons. There was need for this addition to the staff and it was being prepared for before the change of Government, but it was being prepared for on the basis that the workload of the Attorney General's office would remain the same as it had been and would not be diminished as has happened. What has happened is that a Director of Public Prosecutions was provided for by the Prosecution of Offences Act, 1974. The provision of this office meant that 75 per cent to 80 per cent of the work formerly the responsibility of the Attorney General was transferred to the new office. I should like the Attorney General to tell us if these assistants will remain in his office or if they will be seconded to the new commission.

The concept of a law reform commission is a good one but it is dependent on two vital matters. First, the persons who comprise the commission should be suitable and experienced and it should not be just another vehicle for the preferment of party supporters for which this Government have been notorious. Secondly, the commission should be seen to be a body that can produce reports speedily and whose proposals are implemented promptly.

We share with many countries the common law system. Those other countries, such as Britain, Canada and Australia have set up permanent law reform bodies. America, another country that shares the common law, has been engaged for many years in the task of codifying its laws. We have taken over much of what is outstanding in common law and we have included many of its concepts in our Constitution. The right to trial by jury, the right to a fair trial and the right to protect one's dwellinghouse are in the form of constitutional guarantees. During the years we have elaborated on and given extra meaning to many of these concepts; for example, the right to fairness in procedures applies not only in courts but in administrative tribunals. In our statute law we have been in advance of other countries in providing additional protection for certain classes of persons.

I will give three examples of this. We were ahead of Britain in providing compulsory motor car passenger coverage. The Succession Act is an outstanding example of providing proper protection for widows and children and I should like to pay tribute to Members of the Dáil and Seanad of all parties who helped to set up this legislation. Another example is the Civil Liability Act which deals with the whole field of negligence about which most court cases are concerned. This legislation is as advanced as any measures in other countries. Indeed, the idea of giving damages for mental distress is quite unique. At this stage I suggest that the Government should increase the amount which can be awarded under that heading which has been fixed at £1,000 since 1961. We all know too well what has happened to the value of money since then.

I suggest that the first task that the new commission should set themselves is a comparative examination of the statute law in the two parts of this island. When we talk of reconciliation it is essential that we should know what laws we share and where we differ and whether, in fact, there are any great fundamental differences. It is obvious to all that we share the same basic structure and it would be a pity if we could not keep our laws on parallel tracks.

In his announcement of the setting up of the Law Reform Commission the Attorney General said it might well be that reports from commissioners would draw attention to constitutional problems, particularly in the area of family law reform. The need for reform in this area has been increasingly recognised in recent times and I will be particularly attentive to any proposals which the Government may make in this respect. I am concerned that there should be an extension of legal aid to civil cases, particularly where family law is concerned, in connection with maintenance, separation, or guardianship of infants so that no one should be deprived of his or her rights in this regard because of a lack of money.

On a more domestic front we would need to improve our consumer protection laws. With spiralling inflation the housewife needs all the protection she can get through our legal system when she is purchasing items in shops. The last Act dealing with consumer protection was the Sale of Goods Act 1893. Clearly the law should move more with the times and steps should be taken to outlaw any conditions in a contract which would seek to cut down the protection which the law would give to any consumer. For example, a customer when he buys an article has the law on his side inasmuch as that the article must work. However, a customer is often persuaded to sign a so-called guarantee which in effect cuts down his legal rights.

Many areas of the criminal law require urgent reform. Our chief Act dealing with theft dates back to 1916. The Act dealing with malicious damage to property dates back to 1861. At present there is quite good legislation in draft form stockpiled in the Department of Justice—I am thinking of the Criminal Justice Bill that lapsed. There were many useful and controversial proposals for the reform of criminal law dealing, for example, with the prohibition of flick-knives, in that.

Mr. Kelly

That is about the only non-controversial section in it.

Mr. G. Collins

There was a little more than that if the Parliamentary Secretary would go to the trouble of examining it.

Mr. Kelly

I examined it very well at the time.

Mr. G. Collins

From a political or professional point of view?

Mr. Kelly

Both.

Mr. G. Collins

We know that the commission will be expected to produce drafts of Bills and we hope that an effort will be made to simplify the language used in legislation. There are many areas in which the law should be consolidated. For example, the intoxicating liquor code is spread over a series of Acts from 1844 to 1962. The habit of having legislation by reference should be curtailed or abandoned altogether.

The basis for examination and investigation of matters related to law reform seems to be sufficiently covered by the provisions of section 4 of the Bill, that is if one takes it that the provisions of subsection (3) of that section are intended to give the commission a reasonably wide discretion and that the section does not envisage that they must go back and forth to the Government for confirmation, that any particular topic is within the programme for examination propounded under section 4, subsection (2) (a). However, it would appear that the function of the commission is to be confined solely to the suggestion of material suitable for examination and the examination of that material, if so permitted by the Government, and that the commission are without power to propound the nature and extent of the law reform which they may decide to be suitable to undertake.

This appears to be the clear effect of section 5 where the word "programme" seems to refer back to the meaning of the word as it is used in section 4 and not to be capable of any other meaning. If this is the extent of the powers of the commission then it would appear to be unsatisfactory. Some method should be found whereby a commission of this quality, having made the full investigation necessary, would have the power to propound the matter in which the particular aspect of law reform should be pursued. It can be considered that the present method of initiating legislation by which the first proposals come only from the particular Department concerned with the matter in hand is unsatisfactory. In many instances individual Departments have no expertise as to what is acceptable or desirable from a legal and constitutional viewpoint. There is major wastage of time and effort in propounding material that, in the end, must be rejected on, for example, constitutional grounds.

It is desirable in the highest degree that the present mode of propounding legislation from each individual Department without any real co-ordination between Departments and without any reference to expert legal advice in the first instance and before the proposals are submitted to the Government should at least be supplemented by giving to a commission such as is visualised in the Bill power to propound to the Government the nature and extent of the preliminary proposals for the law reforms they feel desirable. Therefore, this Bill should be strengthened by giving to the proposed commission at least some powers of this nature which do not seem to be visualised in the Bill as it stands.

In a matter of detail it is impossible to understand what is meant by the provision contained in section 10 (4) of the Bill. The subsection refers to the Attorney General making a designation but there is not a clue as to what the designation is to be about. Obviously, it is intended to refer to some kind of post or posts as an officer or officers of the commission but the word "designation" stands alone in subsections (4) and (5). It does not appear to relate to subsections (1), (2) or (3) to which it was intended, presumably, to relate. I think the provision is possibly an undesirable one and should be the subject of very serious debate and discussion.

The consequential provisions in section 14, together with the provisions of section 3, subsections (7), (9), and (11), indicate that it is proposed that one or more of the members of the commission is intended to be a judge of either the Supreme Court or the High Court. As to the latter, it might be the President of the High Court. It seems to be proper that if a judge is to be a member of the commission he should hold the office of president of the commission rather than being one of the four other members. The intention of the Government should be made clear in this matter. Clarification is certainly required. If it is the intention that more than one judge should be appointed to the commission it should be so stated in this House.

Looking at section 3, subsection (7), which deals with the qualification of persons to be appointed commissioners some explanation should be given for the inclusion of:

or by reason of other experience or of other special qualifications or training.

This is capable of any interpretation one wishes to put on it, and it is far too non-specific for comfort.

It is obvious from section 11 (7) that this provision is intended to include a civil servant and, perhaps, a civil servant with no very obvious claims to such an appointment. A provision like section 11 (7) almost always means that the appointment of a civil servant to the commission on their initiation is envisaged. I should certainly like this commission to be as independent a body as any body can be. I hope that, once the commission are set up, their independence will not be interfered with in any way, for any reason, by any member of the Fine Gael Party or the Labour Party in Government.

Mr. Kelly

I should like to compliment Deputy Collins on his new appointment on his party's front bench and also on his first handling of a legal matter in this House. I should like to begin by referring briefly to a few things he said. Perhaps I will be forgiven if I refer to the note on which he chose to end.

I should like to remind the Deputy and the House that the very same person who is promoting this Bill, which has attracted in Deputy Collins' opening speech the references to jobs being made for political supporters of the Government, is the person who promoted the Prosecution of Offences Act which, in effect, destroyed patronage of a political or any other kind at the Bar. While I will not play childish games with the Deputy opposite by pretending that things have not happened which have happened, and while he will not expect me to do that, he will, I hope, have enough grace to admit that the Prosecution of Offences Act, sponsored by the Attorney General in front of me, was intended to—and so far as I am aware has done so—put an end to political patronage in the assignment of State work at the Bar.

At the beginning of his remarks Deputy Collins referred to the fact that this is the second change which the Attorney General has sponsored since taking office. He spoke of what I do not think he would mind being paraphrased as an inflation of personnel in the Attorney General's office. There are three points which I would draw to his attention in that connection. I agree that the predecessor of the present Attorney General under the last Government carried out functions which will now be distributed, to some extent at least, between the Attorney General, the Director of Prosecutions and the Law Commission.

Many people welcomed the creation of the office of public prosecutions and I think the Opposition welcomed it—I give them credit for that—for the reason that its creation increased public confidence in the machinery which precedes the institution of a prosecution. It is an independent office and it is as clearly fenced around from interference of an improper kind, political or any other kind, as it possibly can be. That feature alone would have justified its creation, independent of the office of the Attorney General who, in the nature of things, must be a political animal if he is to attend Government meetings and advise the Government on the legal aspects of questions which may have very large political dimensions as well.

Secondly, I would have been happy if Deputy Collins had acknowledged that the present Attorney General and his staff have had to absorb, along with their other work, a colossal burden of business in connection with the Sunningdale talks, the Sunningdale Agreement, and the resultant efforts to implement aspects of that agreement. The fact that the Sunningdale arrangement seems to have run into the ground does not take away from its lasting value. It will remain a monument to the efforts of decent Irish and English people of all kinds to find a peaceful solution to the problem of the country. I cannot believe that the investment in that effort will have been wasted in the long term, even though it may have met with a temporary check at the moment.

Thirdly, I hope Deputies opposite will not take it as being intended offensively towards any previous holder of the office of Attorney General if I say that, perhaps as an indirect result of the inadequate staffing of that office, law reform, the very thing we are talking about here today, was left far behind. I quite understand and accept that it is not the sole function of the Attorney General to promote law reform but he certainly is a person who must take an interest in law reform. If one is asked to explain how it is that law reform proceeded so slowly here, over the past generation or two generations, it may very easily be that the overloading of the Attorney General's office and the singularity of the person who carried the responsibility for it were very large contributory factors.

All I want to do in welcoming the Bill and supporting it, is to draw the attention of the House to three or four instances of neglect which the absence of a dynamic law reform engine has caused within living memory, and within fairly recent living memory. Without going into detail which a layman would not be interested in, I should like to give a couple of very simple instances of which the most conspicuous is the law on contributory negligence.

Broadly speaking, it was the law here up to 1961 that, if the plaintiff in a road accident or a factory accident case had been guilty of any degree of negligence, notwithstanding the fact that the other party to the action, the other driver or the owner of the factory, had been guilty of gross negligence, the plaintiff would utterly fail to recover damages. Perhaps that is a crude statement of a different subject but broadly speaking it is true. In 1961 that law was changed by the Civil Liability Act which has since provided for an apportionment of damages in a percentage ratio to the degree of fault which the jury or the judge find to have existed on one side or the other. That accords with reason.

That change had been made in Britain in 1945, 16 years previously. I am assuming for the purpose of the argument something which I do not believe, namely, that we must trot after the British and not go ahead of them. I do not believe that, but let us assume it for the purpose of the argument. How many plaintiffs lost their actions and had to do without compensation for serious injuries, for which somebody was very substantially to blame, due to the delay in producing that piece of law reform which was crying out to be made and which our nearest neighbour had made 16 years previously?

Another instance of a slightly different kind is afforded by the law in regard to actions against the State where the State, through one of its servants, has inflicted injury on a citizen. That subject is entagled in antique constitutional difficulties. These difficulties were sliced through in Britain in 1947, by a Crown Proceedings Act which, since that year, has enabled citizens to bring actions without any bother against the Crown where one of the Crown's servants through negligence has caused damage or injury.

In 1962, 13 years ago, a very slim little booklet of not more than 12 or 16 pages was issued by the Department of Justice here called A Programme of Law Reform. It foreshadowed the early introduction of similar legislation here which would give the Irish citizen an analogous remedy against the State. Repeated questions were asked in this House over the following seven or eight years about when we would have a State Proceedings Act which would put the citizen, in his dealings with the State in this sort of setting, on the same footing as if he were suing one of his own fellow citizens. The reply was that it was coming up shortly. In the end, the Supreme Court caught up with the then Government. It was the Supreme Court in the end which established, in 1970, I think, the right of the citizen to sue Ireland in respect of injuries sustained through the negligence of a State servant.

To this day no legislation has arrived on our Statute Book which establishes what in Britain was established in 1947. The whole story has been overtaken by the Supreme Court and not by the Oireachtas which was the proper place to have regularised it because, if I may say so without disrespect to the courts, a court decision, although it may be very far-reaching in its results, is essentially directed to the facts of the particular case before it. That way of making the law is not necessarily entirely satisfactory, because a court, focussed, as it may be, on the facts of the case before it, cannot take into full consideration, in the way the Oireachtas can, all the various possibilities. It cannot on Committee Stage thrash out, so to speak, the various possibilities that may arise from a particular legal proposition being made into law. Not infrequently when law is made by the courts, consequences flow from it which have to be checked, impeded or inhibited by Parliament in case they go too far. That may not necessarily be the case regarding the decision which here has taken the place of what ought to have been a State Proceedings Act, but it may be.

Without the slightest disrespect—I hope there is no need to say that— I recall a decision given by the Supreme Court in the matter of bail, which proved in effect something of an embarrassment to the police. It is fairly common knowledge that a good proportion of offences are committed by persons, already at liberty on bail, and awaiting trial on charges relating to other offences. The granting of bail, no doubt as a result of extremely well-meaning and liberal interpretation of the Constitution, is much more common than it used to be. The police are in a much weaker position than they used to be. I do not want to sound illiberal about this. I recognise that personal liberty is not a trivial thing, but it seems it would have been preferable if the Oireachtas had faced up to the problem presented by bail and tried to regularise it by statute rather than wait until the Supreme Court, in a particular decision which was inspired by the facts of that case, set out guidelines without the matter being thrashed out on Committee Stage and without having what I may call departmental advice behind the court.

Naturally, a statute enacted here is not protected and cannot be protected against attack in the courts. That is as it should be. We could pass laws until we were blue in the face and if the Supreme Court found them repugnant to the Constitution they would keep on cutting them down. But the chances of finding ourselves in a condition of embarrassment either from the point of view of the police or any other section of the community is a good deal less if the Oireachtas have had a chance to look at a particular problem and legislate about it. I think if this Bill when it becomes law has the effect of enabling that to be done more commonly, it will be very beneficial.

I shall give two more examples of gaping holes in the law which I hope this commission will close. One of these is another matter of which reform was foreshadowed in the 1962 law reform programme, the malicious injuries code, which is based on the idiotic assumption that the inhabitants of a particular county must bear some imputed liability for criminal acts committed within their county even in the case where it is clearly known and proved that the person who committed the Act is not only not a resident of the county but may not even be an Irish citizen or a resident of the country. In 1962 the programme foreshadowed the possible reform of this area of the law but it has been reformed only piece-meal— it has not been really reformed. Mitigations of it have been carried out by the Government in cases where a particularly heavy award in regard to malicious injury has fallen on a particular county; but the problem of principle represented by the malicious injuries code has not been faced up to 13 years after it had been adverted to by the Department of Justice in their law reform programme.

I shall not blame one side or the other for that, although it would be easy to do so. It may in part be due to overwork, overpressure and lack of individuated responsibility for doing this particular job in two or three separate Departments of State. Lack of pinpointing responsibility for getting something done in this regard will, I believe, be removed by this Bill and to that extent I would be more optimistic that in the future we shall not be complaining about very long delays in reforming the law in directions where we are all agreed it should be reformed.

The last example I shall give is perhaps the most frightening. It is certainly more sensitive and delicate than the other ones. It is the area of matrimonial law. The civil matrimonial law of the State is unbelievably antique; it has been far overtaken in liberality and sophistication by the canon law of the Catholic Church; and in regard to having marriages annulled, I do not need to tell the House that the code of canon law and civil law are completely independent systems and the fact that your marriage is annulled in canon law does not relieve you from the obligation, if you wish the State to treat it as a nullity, from having it annulled in the civil court also. It seems to be a ridiculous anomaly that the Church should now be more liberal and sophisticated than the State in its interpretation of the rules regarding nullity, whether consent is defective and so on, and it seems indefensible that this situation should be allowed to continue. Not being an expert on it, and speaking subject to correction, I do not think our law regarding nullity has been touched by statute since the State was founded. I do not think there has been a line of legislation since this State was founded 53 years ago which has modernised or in any way affected the civil law of nullity of marriage, although the perceptions won by modern psychology have advanced out of all recognition in the same period. Medical and sociological knowledge and psychological understanding have advanced, but our law of nullity remains the same as it was in 1922; and I would guess that the law then was probably not much different from what it was in 1822.

These are a few examples in which I hope there is nothing controversial. I could extend the list very much, but there is no sense in pushing what is evidently an open door. I welcome the Opposition's attitude to the Bill and hope it will have the effect which I, and I think all of us, desire for it.

It is true, as Deputy Collins said, that the Opposition suggested sending this Bill to a special committee and that suggestion was willingly and gladly accepted by the Government. It will save this House some time. I do not know how long the Bill would have taken in Committee, perhaps two or three hours, but that time will be saved. In case Deputy Collins' words may have inadvertently created a wrong impression I should like to say, that that suggestion from the Opposition, constructive and welcome though it is, was made only after repeated pressure from our side, that we should go ahead and make use of the special committees which were, in fact, suggested by a committee over which Deputy O'Malley had presided. The suggestion was made by us in connection with another Bill and was rejected by the Opposition. But they have come back now and made this suggestion in regard to this Bill, and certainly it is welcomed on this side. I hope this committee will work well and will persuade both sides of the House to make greater use of committees in the future.

Mr. O'Malley

Like the last speaker, I am glad to see this Bill introduced. I am sure it will have a speedy passage, particularly as it is going to a committee outside the House. I do not see much likelihood of conflict on the terms of any of the sections. For that reason I regard it as suitable, unlike certain other Bills that have been suggested for these special committees. Because there is considerable political ideological differences in relation to certain other Bills, they are not suitable to be debated in a room by a small group of people, in private, outside the House. This one is because I do not foresee any conflict about its principles or to a great extent its terms.

I note the Bill proposes that the five commissioners will be appointed by the Government. In the normal way, I suppose, that is fair enough but, unfortunately, one cannot but advert to the unhappy history of legal appointments by the Government since they assumed office 23 months ago. Regrettably, it has been an unhappy and sorry history. Not the least of the various unhappy aspects of this has been the question of the appointment of the Director of Public Prosecutions to which the Parliamentary Secretary was referring in the course of his speech when I came into the House and on which he considered the Government had done a splendid day's work by establishing that office and by taking about 80 per cent of the Attorney General's work away from him, leaving him and his staff in a situation that one would think possibly they were candidates for payments under the Redundancies Acts. I have no wish in any way——

Mr. G. Collins

If the fund is still there.

Mr. O'Malley

——to appear critical of the eventual appointee to the office whom I knew in my time as Minister as a competent and very hard-working public servant. He is a man well capable of performing the functions of the office. But it is very disturbing that the unanimous recommendation of the committee which was established under that Act to vet candidates was ignored by the Government even though the committee, from what I am told, expressed the view that their nominee was clearly more suitable than any other.

It will be recalled that this matter was raised in the House by way of question by, I think, Deputy Andrews to the Taoiseach, who asked him two fairly harmless questions: how many applicants there were for the post in question and how many, if any, of them were women. The reply of the Taoiseach to both questions was that he did not know how many applicants there were and he did not know if any of them were women. I would venture to think that it would be impossible for the Taoiseach not to know as the whole operation was carried on in his Department.

The committee was set up by him and the report of the committee on their interviews with the various candidates, and their selection and positioning of the various candidates was sent, in the first instance to the Taoiseach. I believe the reason the Taoiseach gave the answer he did was that he could not stand over what the Government did in relation to the recommendations of that committee, which was totally to ignore them. Of course, the reason they did so was that the man recommended by that committee as being far superior to any other candidate was well-known to be closely associated with this party. That fact, and that fact alone, disqualified him and the committee concerned—which was a representative one and included people such as the Chief Justice, the President of the Incorporated Law Society, the Chairman of the Bar Council, the Senior Assistant in the Attorney General's office, the Secretary to the Government and, I think, one other equally eminent person— found themselves in the situation that their recommendation was totally ignored by the Government for the reason I have given.

I am afraid that that action by the Government came simply as the latest in a succession of judicial appointments which have given rise to a fair amount of disquiet generally and in the legal profession in particular. The qualification of most recent appointees to the Bench is that they were unsuccessful parliamentary, presidential or Seanad candidates for one or other of two political parties in recent years. Defeat in a parliamentary or Presidential election may well not carry with it any great stigma, and it does not so far as the practice of the law is concerned, but it stretches coincidence a little far in the eyes of many people that defeat in Seanad, Dáil or Presidential election seems to be the sine qua non of obtaining judicial appointment in the past 23 months. I do not need to remind the House how considerably the practice of the past 23 months contrasts with that before then, where, indeed, it was alleged——

Mr. Costello

Might I ask, Sir, is all this relevant?

Mr. O'Malley

Where it was alleged that the very opposite——

Mr. Costello

How is this relevant?

Mr. G. Collins

Arising out of what the Parliamentary Secretary said, it was he who introduced it, he who tried to whitewash the appointment about which Deputy O'Malley is speaking.

An Leas-Cheann Comhairle

Deputy O'Malley has replied to that. It would be much better to adhere to the Bill.

Mr. O'Malley

One section of the Bill provides that the members of the Commission shall be appointed by the Government. I started off to point out that I had certain misgivings about that. Admittedly, perhaps, with the indulgence of the Chair, I gave at some length the reasons for my misgivings. I revert now to the section of the Bill which provides for the appointment of the commissioners by the Government. I express the hope, even though I do not do so with any great confidence in the light of events of the past 23 months, that the five commissioners who will be appointed by the Government, after the passage of this Bill, will be appointed on their merits and that it will not have been necessary for them to have been former Members of this House or former candidates for election to this House on behalf of either the Fine Gael or Labour parties.

An Leas-Cheann Comhairle

I think the Deputy will agree that details in regard to sections of the Bill ought to be retained for Committee Stage of the proceedings. The general principles of a Bill are dealt with on Second Stage.

Mr. O'Malley

I should think it is a general principle that a commission appointed by the Government could have been appointed by other bodies such as the committee which was set up to deal with the appointment of the Director of Public Prosecutions but there is no such facade in this Bill. It is clear from the start that the Government will make the appointments. On behalf of the legal profession and of the many others who are interested in these matters and who are concerned in regard to them I urge the Government—but not with a great deal of confidence—to ensure that the most suitable people are appointed to act as commissioners. All that needs to be taken into account are their knowledge of law and legal procedure, their ability to recommend modernisation and reform and, in particular, to prepare legislation arising out of such recommendations.

One of the various places which was concerned in recent years with law reform was the Department of Justice. This was one of the main Departments in which law reform was expected to be carried out. I was in that Department for almost three years but, unfortunately, I did not achieve very much in the way of law reform although we brought forward and had passed some useful Bills. However, the reason for our not achieving more in this sphere was that neither I, personally, nor the appropriate officials in the Department were in a position during most of that period to devote to law reform the sort of time that such work requires if it is to be undertaken successfully.

The situation was that officials who were skilled particularly in various aspects of law reform had to be taken away from that work and, in the national interest, deployed on other work in which, perhaps, they were less skilled but in which their talents were needed urgently. Likewise, as Minister, I was unable to devote anything more than a small fraction of my time to considering the problems that were involved in relation to law reform. The problems are considerable but I am hopeful that this proposed commission, since it appears that they are to have full-time members, will be able to go ahead with this work quickly and that as a result Bills dealing with law reform will be brought before the House in the shortest time possible.

The commission will not have to start from scratch. To my personal knowledge large amounts of work have been carried out in the Department in this field but, unfortunately, in many cases it has not been completed. This is because there has not been available enough time to complete the work. In particular I recall a major landlord and tenant Bill being produced to me in 1971 after several years of drafting but which, unfortunately, was so complex that I had to suggest it be redrafted. If the commission were to work on that Bill and have it produced here, they would be doing a very good day's work.

I am glad to note that the commission are to be encouraged to draft Bills and not merely to bring in reports. One of the major causes of the delays in the past was that although one might receive a very good report the chances were slim of having it drafted into legislation within a reasonable period. In my time in the Department I can recall only one commission bringing in a report to which they appended a Bill in draft form. This was the Bill which proposed to reform and modernise the law on bankruptcy. It was presented to me in 1972 by a commission who had sat for ten years. I discovered then that it was not clear whether the Minister for Justice or the Minister for Industry and Commerce should deal with bankruptcy but I was prepared to take it on myself to introduce the Bill. Unfortunately, however, very shortly afterwards there was the general election of 1973 and, consequently, I lost the opportunity of introducing that Bill. It is a huge Bill, very complicated but very necessary because of our bankruptcy law being so much out of date. All of the law in this regard is about 100 years old and the commercial conditions at that time were totally different from what they are now.

The procedure that must be adopted in the bankruptcy office is extremely unwieldy, slow and tedious. Bankruptcies which, unfortunately, because of the economic recession of the past 18 months, are becoming an increasing feature of life, are slow proceedings to hear. Creditors are receiving smaller dividends than might otherwise be the case if we had a more up-to-date system of law in this sphere and the bankrupt is being kept in bankruptcy for a far longer period than is usual in other countries and for a far longer period than is necessary. I hasten to add that this is not the fault of the assignee of bankruptcy or of any official. It is a result of the system. I urge whichever Minister is responsible to bring forward that Bill. Perhaps it is not perfect in its present state but we could go into it in detail on its Committee Stage. It is a Bill that could be dealt with ideally in detail by a committee outside the House.

The fact that this commission are to draft Bills as well as to make recommendations should speed up the whole question of reform generally. Another reason why I am glad the commission are being set up is that their existence should be the means of getting rid of a practice that has developed in this House during the past ten or 12 years whereby when a Bill that was of a general law reform nature was brought before the House, one or two sections of it became controversial, the reason for the controversy being that, while drafted by academic lawyers who had no political interest but who endeavoured simply to modernise the law as they saw fit, the Bill was introduced by a Minister whose opponents decided to tackle him about various provisions of the Bill with the result that good Bills became bogged down completely for long periods and, in some cases, were never passed. The provisions in those Bills were not such as to justify the rumpus raised in relation to them. In future, because of this commission a Minister may come into the House with a Bill and in addition to laying the Bill before the House, he may lay before the House also the report and draft relating to the Bill which he received from the commission and may say: "These are not my suggestions. They are the work of the commission who believe they should be implemented, subject to the views of the House. I am merely promoting them here". One would hope that in that way Bill of the kind I have in mind would be less controversial than they were in the past.

I should hope also that there would arise a situation that because a Bill is not the Minister's as such but is something adopted by him he would consider himself freer to accept any useful suggestion that might be made on Committee Stage or elsewhere in relation to any of the Bill's provisions than has been our experience in the past 23 months. During that time we have had situations of Bills being brought forward by various Ministers but in respect of which changes that were seen to be desirable were not made.

Apparently the Minister concerned in each case felt that in some way he would be letting himself down or that it would be a political victory for the Opposition if he were to accept the amendment. That is foolish. Bills have gone through this House in the past two years which were not as good as they could have been if our suggestions had been accepted. I hope that because a Bill will be seen to emanate from this commission in future rather than from a Department, Ministers will be more willing to accept patently correct suggestions made here than they have been during the period about which I have spoken.

I note it is intended that the commission should set out programmes of what they propose to do and should obtain the consent or approval of the Government for these programmes. It would be wrong to tie the commission to precise implementation of these programmes because frequently it is necessary at short notice to make some change in the law. I hope this Bill will be flexible enough to allow the commission to deal with such a situation in an ad hoc fashion.

Is it proposed to close down the law reform section in the Department of Justice and transfer all its staff to the commission? Or, if it is proposed to maintain the section, on what basis? I note from what the Attorney General said that it is proposed to maintain the statute law reform and consolidation office. I would have thought that that might profitably be merged with the commission because in many ways their functions will run parallel. We have not seen in this House in recent years much codification or statute law reform of the kind done by that office. I had hoped that a number of such measures would have been introduced here over the past two years.

I welcome this Bill and hope that the approach to the appointment of the five commissioners will be different from that adopted in regard to other legal, judicial and quasi-judicial appointments over the past 23 months. They caused much disquiet in the legal profession and the country generally.

Mr. Toal

I welcome the setting up of this Law Reform Commission and wish them well in their work. Law reform has been with us since the rule of law was first established here. This is not the first time serious consideration was given to law reform. A system of precedents has built up over the years.

Hardly a month or a week passes that a judge does not give a decision which throws new light on a certain aspect of law. In recent years much good work was done on statute law. I refer in particular to the Succession Act, 1965. We did not just follow the English and copy them, we took a bold step and drew up a code of law for the inheritance of property which fits Irish conditions very well.

That leisurely pace of development might have been all right in the old days when a man visited a solicitor once or twice or at most three times in his lifetime. He probably went when he got married to make a will, went back when he bought a house to draw up a mortgage and when his father or mother died he went to prove the will. Nowadays all individuals, regardless of age, see a solicitor many times in their life. They might have an accident going home from work. The Land Commission might step in and take an interest in their holding. A multitude of things could happen which would necessitate their visiting a solicitor. However simple the problem might be, very often a solicitor will not have the answer. Even the counsel, when the case is presented to him, will not know the answer.

I read somewhere that there are over 3,000 statutes and over 300,000 reported cases. I hope the Law Commission will not delve into all this to try to bring the law up-to-date because that would be an impossible task. All I want them to do is keep their ears tuned to public opinion and root out the areas where reform should take place. I can think of several areas but the most glaring at the moment is the law dealing with malicious damage to property. This law was introduced before we had a police force. When property was damaged, the owners, the innocent victims and their neighbours, had to pay for the damage. This system has continued down through the years. There was a study carried out in 1965 but its recommendations were not acted upon. This area should get the attention of the Law Commission with a view to its complete reform. I would like the commission also to look across the water to the EEC and try to get the laws not just in uniformity but in conformity with the broad concept of law throughout the Community.

Deputy O'Malley's remarks on the commission and their formation were typically cynical. No matter what is brought into this House he says it means jobs for the boys. There was a Bill introduced in this House very recently and it certainly did not provide any jobs for the boys. It was set out in a very impartial way and I feel this commission will be set up in the same manner.

As some of the commissioners will gain very valuable experience during their term of office, I would not like to see them being dropped at the end of the five-year period. Some of them should be reappointed. I do not know if that is set out in the Bill but if not it should be——

An Leas-Cheann Comhairle

The Deputy will agree that details will be set out by the committee.

Mr. Costello

I am glad the House has given a welcome to this measure. I would like to repeat the view expressed on both sides that there is a need for a systematic approach to law reform. The institutional framework we are proposing will be a means for fulfilling this need. In view of the general welcome given to the Bill, our main discussions will probably be in the Special Committee to be established. Accordingly, I need not detain the House at any great length on matters of detail which we can discuss later.

I would like, however, to pick up a few points made in the course of the discussion. I can assure Deputy G. Collins that the officers of my office will not apply for redundancy payments nor would they qualify as a result of the appointment of the Director of Public Prosecutions and the creation of his office. It is a matter of detail which I think I should correct for the purpose of the record. In fact, the amount of time spent by officers of the Attorney General was approximately 50 per cent in relation to crime and 50 per cent in relation to other work. As far as I personally was concerned I can inform the House that a much greater percentage of my time was taken up on non-criminal matters and I would imagine that this was the experience of my predecessors in office too.

The establishment of the Director of Public Prosecutions will of course raise problems in relation to the staffing both of his office and of the Attorney General's office. These are problems which obviously will have to be considered very shortly and I do not wish to anticipate the solutions to them but I would like to take up something Deputy O'Malley said with which I agreed very strongly. The problem we have faced in this country in the past in relation to the area of law reform generally has been a shortage of skilled personnel. It is generally true to say that the legal services available to the Government, throughout the whole Government, have been inadequate. This has put a tremendous burden on the legally qualified people in the different branches of the public service including the Office of the Attorney General. Far from there being too many redundant legal officers available to the Government for legal advice, it seems to me that one of the matters which should give concern is that delays occur due to the fact that the number of legally qualified personnel is small.

One of the very considerable new factors that has arisen in relation to the legal services available to Government Departments has been our entry into the EEC. There is now a great volume of advice being sought by many Government Departments from the office of the Attorney General of a sort which never arose before our entry into the EEC. Government Departments are being faced virtually daily with important decisions which require the assistance of the legal expertise available to the Office of the Attorney General. Therefore the character of the work of the Attorney General's office has undoubtedly been changed as a result of the establishment of the office of Director of Public Prosecutions but it has also been changed very considerably by the fact that we are now in the EEC and a great deal of the time of the officers of the Office, which heretofore might have been available purely for advising Government Departments on their ordinary legal problems, is now taken up with the special, new, very difficult and very intricate problems arising from our membership of the EEC. In addition, the question of servicing expert committees of the EEC has arisen in a very acute form and all this has placed the officers of the Attorney General's Office under considerable strain and has indicated very clearly the need for expanding the legal advice available to the Government.

I agree completely with the points raised in a general way by Deputy Collins. We have in the past been able to develop our law in certain areas in a way different and in advance of that in the neighbouring jurisdiction. While that is true and reference has been made in particular to the Succession Act, undoubtedly it is also true that the United Kingdom, with its vastly greater resources, has been more successful than we have in programmes of law reform. The United Kingdom has resources which must be the envy of most countries in the world in this sphere and we cannot hope to emulate them, but the experience which they have had is of benefit to us. The experience which they have had in Canada and Australia can also be of benefit to us. This institutional framework of a full-time commission with an expert staff is something which we will adopt, I hope, in this legislation and which will enable us, by bringing in a whole lot of new expertise to this field, to expand the programmes of law reform which it must be agreed have been too slow in the past.

I think there would be general agreement on the desirability of more consolidation. Consolidation of statues is of very great importance and I hope that shortage of skilled staff will not hinder this very important work. It is not quite correct, as Deputy Collins seemed to say, that what the Law Commission will do is to take over some of the work in this field which heretofore was undertaken by the Attorney General. This is not so. The Attorney General has no function at the moment in relation to law reform. In so far as the Office of Law Reform and Consolidation is concerned, it depends on instruction from other Departments and it carries out the views that are conveyed to it from other Departments through the Government in relation to consolidation of statutes. I do not think there is any question of transferring from the Office of the Attorney General to the new commission any functions which heretofore were in the Office of the Attorney General.

Certain views were expressed by Deputy Collins in relation to what he regarded as defects in the proposals in relation to the drafting of the programmes which the commission would draw up. We can discuss these in the Committee but it is not intended in any way to constrain the commission in the preparation of its draft programmes. Frankly, what we had in mind when putting forward these suggestions were ideas based on the experience in the United Kingdom in relation to the Law Commission of Scotland as well as the Law Commission of England and Wales. Deputy Collins will see in the programmes prepared by those two bodies the manner in which they have approached their task of preparing programmes and it is envisaged that the commission here will do likewise. Therefore in preparing a draft programme the commission here would be absolutely free to outline the problem which it sees and recommend how the programme of research should be undertaken.

In relation to the point raised by Deputy O'Malley in regard to the programme, it is provided in the Bill already that the commission can be seised of problems and be requested to undertake research into problems which are not included in the programme. This is provided for in section 4 (2) (c). I dealt with this in my opening remarks. Briefly the position would be that situations could well arise, and experience elsewhere has shown that they do arise, which are not covered by the programme on which the advice of the Law Reform Commission would be desirable and which should be referred to it. This mechanism is provided for in the subsection to which I have referred.

We can probably discuss more appropriately in committee the designation order. The concept here is that the situation could develop. If, for example, the committee are expanding their staff considerably, without any interference in any way with their freedom to appoint members of their staff it may be thought desirable to have some form of competitive examination, perhaps have an advertisement, for the selection of candidates. The concept here is if this is thought desirable there should be some provision in the Bill for it. We can discuss this in committee.

It would be wrong to refer in any way, as Deputy O'Malley did, to the absolutely confidential proceedings of the selection committee in relation to the DPP and also the confidential proceedings of the Cabinet and I do not intend to do so. I am entitled to say it is not proper for a Deputy to make statements based on what could only be the assumption that this highly qualified, responsible group of people, the selection committee, informed a Deputy of what their recommendations were. I do not think it is proper to refer to this in any way and I do not intend to do so.

Deputy O'Malley was correct when he underlined the difficulties he had as Minister for Justice. Obviously, he was Minister at a time when his attention and the attention of his officials were very much exercised by the needs of the security situation among others. Equally obviously, the staff available to the then Minister for Justice and the present Minister for Justice was not sufficient to carry out the reforms in the law which would be the particular concern of the Minister for Justice.

Of course, law reform does not cover merely the Minister for Justice. It covers the whole gamut of Government and the whole concept behind the establishment of an independent body outside the Government is that it can review the whole law, not merely from the point of view of a Department and make appropriate recommendations. Deputy Toal's point in relation to the re-appointment of the commissioners is obviously one we can discuss in committee. It is undesirable that there should be full-time life appointments as commissioners. The reasons for these are fairly obvious but I think it is also desirable if a particular person was highly qualified and suitable and desired to continue his appointment he could continue beyond the five year period. It is not intended that such a development is to be stopped by the Bill and it is not intended if somebody acted for five years he would not be eligible for re-appointment. This is a matter to see to when the time comes and the views of the committee of what is appropriate in this connection can, of course, be canvassed. I think this is all I need say at this stage of the legislation.

I welcome the idea that this Bill is to go to a special committee. I have long favoured the use of special committees of this House. A great many of our problems in the House and in the Oireachtas generally could be overcome by much greater use of special committees and a transfer of legislation from the Dáil to special committees. I hope this Bill will set a precedent which will be followed later.

Mr. G. Collins

Can the Attorney General say when the names of the special committee will be submitted to the House for approval?

Mr. Costello

I understood it was agreed that the members of the committee would be nominated by the Committee of Selection and that this can be done immediately. As the Deputy knows, there are two ways in which the members can be appointed. They can be appointed either in the resolution or in the usual way by the Committee of Selection. I understand from the Chief Whip that the names can be submitted almost immediately. I understand also that there has been agreement that the committee shall consist of 11 members, that the quorum will be six and I will move such a motion now. The only matter that remains for discussion is when the first meeting of this committee will take place.

An Ceann Comhairle

May I first have agreement that the Second Stage of the Bill be agreed to?

Question put and agreed to.