Dáil Éireann debate -
Wednesday, 12 Mar 1975

Vol. 279 No. 3

Law Reform Commission Bill, 1975: Report and Final Stages.

Attorney General (Mr. Costello)

I move amendment No. 1:

In page 3, lines 11 and 12, to delete "in a university, or by reason of other experience or of other special qualifications or training" and to substitute "or by reason of such other special experience, qualification or training as, in the opinion of the Government, is appropriate having regard to the functions of the Commission.

This amendment is designed to deal with two matters which arose during the discussion in the Special Committee. It was pointed out that there are teachers of law in institutions which have not got university status and that the Bill as drafted, when referring to the qualifications of persons for appointment to membership of the commission as teachers of law, limits such qualification to teachers of law in a university. By deleting the words "in a university" it will be made clear that teachers of law in all institutions will be eligible for appointment. Secondly, the amendment deals with the suggestions made in the Committee that the last part of this subsection should be more specific. The suggestions were considered by the parliamentary draftsman and the wording now proposed takes into account the views that were expressed. The result will be that the section will provide that persons eligible for appointment to membership of the commission will include persons qualified by reason of such other special experience, qualification or training as, in the opinion of the Government, is appropriate having regard to the functions of the commission. This will make it clear that the qualifications referred to are relevant to the functions which the commission have to perform.

Major de Valera

The amendment is highly desirable and does, in my interpretation, widen it enough to bring anyone in from a particular area who can help the commission and whose opinion or advice can be worthwhile irrespective or restrictions as to qualifications. Would the Attorney General agree with that interpretation?

Mr. Costello

Yes, I would.

Amendment agreed to.

Acting Chairman

Recommittal is necessary in respect of amendments Nos. 2 and 3 because they involve new matter of substance which does not effectively arise from the Committee proceedings.

Bill recommitted in respect of amendments Nos. 2 and 3.

Mr. Costello

I move amendment No. 2:

In page 8, both in lines 31 and 32 and in line 49, to delete "the Courts (Supplemental Provisions) Act, 1961" and to substitute "the Act of 1961".

If the House agrees, amendments Nos. 2 and 3 could be taken together. Amendment No. 2 is a drafting amendment which can be made if amendment No. 3 is accepted. Amendment No. 3 proposes the insertion of a new subsection. As Deputies are aware, the membership of the commission will be for a limited period only and the Bill likewise envisages that persons may be appointed to the professional staff of the commission for a special purpose and for limited periods of time. It has been pointed out to me that a person who leaves his practice as a barrister or a solicitor for a period of time could be placed at a disadvantage if the subsection proposed was not enacted. It is proposed therefore that service as a commissioner or as an officer of the commission will be deemed to be practice at the Bar or practice as a solicitor for the purpose of the relevant provisions of the Courts (Supplemental Provisions) Act, 1961 and the Courts of Justice Act, 1936.

Major de Valera

This is really a drafting amendment. This is a wise, fair and equitable addition and I am sure the committee would have readily agreed to it had it been adverted to. The Attorney General is right to introduce it and we will take it as agreed. Subsection (3) of amendment No. 3 reads:

For the purpose of qualification for appointment—

(a) under section 29 (2) of the Act of 1961 as a justice of the District Court,

(b) under section 51 (as so amended) of the Act of 1936, to act temporarily as such a justice,

in subsection (2) of this section, the reference to a barrister shall be construed as including a reference to a solicitor and the reference to practice at the Bar shall be construed as including a reference to practice as a solicitor.

This is unobjectionable and is perfectly correct. I have an instinctive objection to getting over drafting niceties by this device, in other words, by describing something as something which it is not. There is an essential difference in the legal system and in legislation between the two branches of the profession. Although I have no objection to what is happening in this Bill I do not like this method. I should have preferred to treat the two as separate. I hasten to assure the Attorney General that I will not make a point of this now.

This is one of the rare occasions when we have the Attorney General in his ministerial capacity in the House. As his responsibility is drafting generally, I wanted to make that point in drafting law. The description of something which is different from another thing, such as a solicitor is different from a barrister, seems dangerous and can lead to absurdities. The classic absurdity occurred during the war when the hard case made the bad law. At the beginning of the war a statutory order was made forbidding the export of scrap iron. At that time there was a run on the export of horses. In order to prevent the export of horses an amazing order appeared defining a horse as scrap iron. As far as I remember the order read the term "scrap iron" shall include "horse". I hope the Attorney General takes my point. I will not delay the House any further. This amendment is acceptable. As a member of the committee I can say that it would have been accepted without objection had the point been adverted to.

Amendment agreed to.

Mr. Costello

I move amendment No. 3:

In page 8, between lines 49 and 50, to insert the following subsections:—

"(2) When a person who is a barrister is appointed to be either—

(a) a Commissioner in a whole-time capacity, or

(b) a whole-time officer of the Commission,

then, for the purpose of qualification for appointment—

(c) under section 5 (2) (a) of the Act of 1961, as a judge of the Supreme Court or the High Court,

(d) under section 17 (2) (a) of the Act of 1961, as a judge of the Circuit Court,

(e) under section 14 of the Act of 1936, to act temporarily as a judge of the Circuit Court,

(f) under section 29 (2) of the Act of 1961, as a justice of the District Court,

(g) under section 51 (as amended by section 48 (8) of the Act of 1961) of the Act of 1936, to act temporarily as a justice of the District Court,

service by him as such a Commissioner or as such an officer of the Commission, as may be appropriate, shall be deemed to be practice at the Bar.

(3) For the purpose of qualification for appointment—

(a) under section 29 (2) of the Act of 1961 as a justice of the District Court,

(b) under section 51 (as so amended) of the Act of 1936, to act temporarily as such a justice,

in subsection (2) of this section, the reference to a barrister shall be construed as including a reference to a solicitor and the reference to practice at the Bar shall be construed as including a reference to practice as a solicitor.

(4) In this section—

‘the Act of 1936' means the Courts of Justice Act, 1936;

‘the Act of 1961' means the Courts (Supplemental Provisions) Act, 1961."

Amendment agreed to.

Amendment Nos. 2 and 3 reported and agreed to.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Major de Valera

As the Attorney General does not want to say anything on this Stage, I am sure he will not object if I say a few words. This Bill is a useful and desirable measure. On other occasions here we complained about the prolixity of law. In recent times I complained constantly about the form in which financial legislation came before the House. We will later be dealing with a classic example of legislation by reference—the Social Welfare Bill. It is very difficult in modern times to avoid this type of legislation because one Bill is adding to another. Legislation by reference makes it practically impossible for anybody but the trained lawyer who is pursuing his profession to grasp the totality of the legislation, unless the person in question happens to be engaged in the administration of the code concerned.

There have been efforts, sometimes successful, to consolidate. One of the difficulties about consolidation is that amending legislation takes place so quickly that it is an on-going process. In other words, we have no sooner consolidated than we are preparing for further consolidation in the future.

In the social context there is a need for a revision of law, legal thinking and legal formulation to meet current requirements. These functions make a commission as envisaged in this Bill desirable. In my view it would be a mistake to think that this Bill will deal totally with consolidation or that it will be the mechanism for preparing Bills or doing the Government's job as regards policy, legislation or the work of the House. The provision of this commission will supplement or be another organised arm of the area under the immediate direction of the Attorney General and, to some extent, the Department of Justice in the preparation and anticipation of legislation and the recommendation of areas in which legislation is to take place.

I take it this commission will not be fixed with functions appropriate to the Attorney General's office in regard to drafting. I take it the Bill does not cut across in any way the functions of a Minister in his Department in proposing legislation for the particular purposes of his Department. Nevertheless an agency such as the Bill contemplates is necessary to deal with law reform, to look at law from a legal and from a general point of view and to complement existing agencies at the disposal of the Attorney General. That is what I conceive this Bill to do. Other people may have different conceptions of how it fits into the scheme of things. The Bill will provide a commission of intelligent people—I hesitate to use the word "expert" because that can be open to a too narrow and too technical interpretation—a group of reasonable people, people who will know what they are doing, undertaking a task they are highly competent to undertake and, above all, possessing the qualities of broadmindedness and good judgment to offset a too purely technical approach on the one hand and a purely administrative or managerial approach on the other. In that way a balance will be provided in the discharge of the very necessary functions of this House and the Government in modern times to see that law is practicable, that it is intelligible to citizens as a whole, that it is simple, workable and competent to cater for the needs of the community in the social circumstances of the times and that it is in accord with current ruling social and economic factors. In that sense I commend the Bill.

Mr. Costello

I should like to express my thanks for the welcome this Bill has received from both sides of the House. Sponsors of legislation may sometimes take an exaggerated view of the importance of the proposals they are sponsoring. I trust I am not doing that when I express the view that this legislation could well be the means of bringing about considerable constructive change in Irish society in the years ahead.

Question put and agreed to.