Before going on to the Bill, could I take this opportunity of expressing my appreciation to the Seanad at its recent decision in relation to the amendment of Standing Orders to enable my participation in the deliberations of the Seanad? I hope that both myself and my successors in the office I now hold will frequently be able to avail of the opportunity which you have given to the Attorney General for the time being.
Law Reform Commission Bill, 1975: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
Most informed members of the public are quite satisfied of the need to improve, modernise and reform many of the laws of this country. Most lawyers would agree with them. So do the Government. And so to set about the task of reforming, simplifying, modernising, codifying and consolidating our laws in a planned and systematic way it seeks the enactment of the Bill which the Seanad is now considering.
This Bill, when enacted, will establish an institutional framework by means of which law reform can be undertaken more effectively and more expeditiously than heretofore. Briefly I would like to outline how the Law Reform Commission which will be established under this legislation will function and what its responsibilities will be. It will be a permanent independent body. It will prepare from time to time programmes of law reform and will either itself carry out the necessary research and prepare proposals for reform or suggest how best research could, otherwise, be undertaken.
In addition to the work set out in the programmes it will, by means of the mechanisms outlined in the Bill, have power to undertake examination of and conduct research into particular matters of law which may be specifically referred to it from time to time. It will have freedom to regulate its own procedures and business but it is to be anticipated that, in the light of past experience in this country and recent experience elsewhere, it will find it desirable to establish working parties to assist in the preparation of its reports, that it will produce consultative documents circulated for consideration by interested parties prior to the formulation of its final reform proposals and that it will include draft Bills annexed to its reports.
Being a permanent independent body, it will be able to assess priorities, bearing in mind both the needs for reform in particular areas and the resources available to undertake the necessary research. The consultation procedures which it is likely to adopt will help to ensure wide and rapid acceptance of its proposals, and the inclusion of draft Bills in its reports should help to obviate unnecessary delays in the implementation of its recommendations which could otherwise arise. Law reform necessitates research; research and consultation take time. But the methods which I have just outlined will help to combine thoroughness with expedition. It is to be anticipated that the proposals contained in this Bill will ensure that law reform will be undertaken speedily, efficiently, and in a manner beneficial to the entire community.
I would hope that when the provisions of this Bill are understood and contemplated procedures appreciated, a misunderstanding which may have arisen about this Bill may be dispelled. The criticism is often voiced that Governments establish commissions for the purpose of delaying action or postponing difficult decisions. The unprepossessing list of commissions whose reports have long awaited implementation is not infrequently urged as an argument against the principle of the establishment of commissions as an aid in the legislative process. Such opinions have led some commentators to the view that the establishment of the commission proposed in this Bill will delay the implementation of the desired reforms in the law. The very opposite is, in fact, the case. It is because the Government are concerned to ensure that the maximum amount of law reform is enacted in the shortest possible time that they recommend the establishment of a permanent statutory independent commission with the functions proposed in this Bill. Experience elsewhere supports the Government's view. Far from hindering law reform a commission established on the lines contemplated in this legislation will considerably speed the whole process of law reform. It is for this reason that its establishment is sought by the Government.
I should like to expand slightly on a point touched on earlier. Law reform is not a concept of interest only, or indeed primarily for, lawyers. It is true that the complexity of modern society produces complex laws and the knowledge and skills which lawyers have acquired are frequently necessary for the purpose of modernising, consolidating, simplifying, or codifying much of our law. While a programme of law reform will therefore necessitate the assistance of specialists with legal training and knowledge such a programme need not, and indeed should not, be a matter of interest only to members of the legal profession or to small exclusive groups in our society.
I do not wish to anticipate in any way the areas in respect of which priorities will be given in the early programmes of law reform to be proposed by the commission. It is however quite clear that many aspects of our laws relating to the family, to landlord and tenant matters, to rights and duties arising from the relationship of employer and employee, rights arising from torts, the criminal code, as well as laws which touch on important aspects of basic human rights, require as a matter of urgency immediate careful examination with a view to their reform.
It will be clear therefore that a comprehensive programme of law reform will produce proposals which will vitally effect the lives of many people in their most important relationships. This being so, it should be appreciated that programmes of law reform can play an important role in the task of reforming Irish Society.
The Bill is proposing new methods to effect reforms in our laws. They are not however untried ones. In framing these proposals consideration has been given to the provisions of the Law Commission Act, 1965, which established law commissions in England and Scotland; the Canadian Law Reform Commission Act, 1971, and the Australian Law Reform Commission Act, 1973, which established similar commissions. The experience of these countries has been drawn upon and the Government's proposals follow the general principles which these countries have found to be effective.
In introducing this new institutional framework it would be wrong to think that this implies any criticism of those who have participated in methods which may now be superseded. On the contrary the unselfish service of those who have served in the past on special committees or commissions is widely recognised. It is to be anticipated that there will be many opportunities for persons to serve on working parties to be established by the commission and it is to be hoped that the co-operation with those with special knowledge and experience will be forthcoming. It must however be said that the old methods employed in the past did not produce the action which was so clearly needed in many areas of our laws and that the progress of law reform in the past has been at an unacceptably slow pace.
In turning to deal with the principle features of the Bill, there are two aspects of section 1 to which particular attention should be drawn. The commission will be charged with the responsibility of keeping "the law" under review. It is proposed that "the law" in this context will include all the law of the State and will embrace matters of private and public international law as well as matters of legal practice and procedure. This means that in fulfilling its tasks the Commission will have the widest possible terms of reference and in preparing its programmes it can review the whole law of the State with a view to considering which areas should be given priority and how best to utilise the resources available to the commission or elsewhere for the fulfilment of its purposes.
Secondly, Senators will observe that the term "reform" in section 1 is so defined as to permit the commission to formulate proposals not just for updating or amending laws but also for their codification and consolidation. There can be no doubt that the simplification of the law is a desirable end. Ease of access to law is important not just to help the work of practising lawyers but also in the interests of the public. It is to be anticipated that law reform programmes will include proposals for codification and consolidation in appropriate areas.
Section 2 provides that the Taoiseach may by order appoint a day to be the Establishment Day for the purposes of the Act. When the members of the commission have been appointed by the Government then the commission can be established by virtue of an order under this section. It is hoped that the members of the commission will be appointed at the earliest possible opportunity so that the Commission can undertake its important responsibilities as soon as possible.
The Law Reform Commission is to comprise five persons. The Government are only to appoint persons who are suitably qualified by the holding of judicial office, by experience as a barrister or solicitor or as a teacher of law or by reason of such other special experience, qualification or training as in the opinion of the Government is appropriate. This subsection (7) of section 3 is so drafted as to permit the appointment of persons to membership of the commission who are non-lawyers but whose expert knowledge, qualification or training could be of assistance to the commission. For example, an expert social scientist might well be available whose particular experience would be of considerable value to the commission. I am aware that the view prevails in England at the present time that only persons with legal qualifications should act as members of a law commission. I am also aware that the view is held that law reform is too important a matter to be left to the lawyers. I do not think it is necessary to take up an intransigent position on either of these points of view. It has however been thought desirable to make provision in the Bill which would allow the Government to appoint a person from a discipline other than a legal one if his qualifications are suitable and a suitable vacancy exists.
In connection with subsection (7), I would draw the attention of the House to section 14. This latter section provides that if a judge of the High Court or the Supreme Court is appointed to membership of the commission, an additional judge may be appointed in such circumstances. A judge who is appointed a commissioner does not cease to hold judicial office but he will not be required to perform his duties as the holder of a judicial office. It is however recognised that the appointment of a High Court or Supreme Court judge to membership of the commission may make it desirable or necessary for an additional judicial appointment to be made. Section 14 will permit such an appointment.
Subsection (8) of section 3 provides that the term of office for which a commission is to be appointed is not to exceed five years. Apart from this restriction the length of appointment and the terms and conditions of appointment are not spelled out in the section. The reason for this is that it is important that the Government should have considerable discretion in fixing the terms and conditions and length of office of the persons to be appointed. Some commissioners may be whole-time, some part-time. It may be possible to obtain a suitable person only for a limited period. So the terms of appointment and the length of office of appointees should not therefore be laid down in advance.
It is specifically provided, by virtue of subsections (14) of section 3, that the commission is to regulate its procedures and business. It is clearly desirable that the commission should be independent in the discharge of its functions and so it is right that the Commission should itself decide how best to regulate its procedures and business. This subsection is however to be read in conjunction with subsection (3) of section 4 which lays down certain guidelines which the commission may, if it considers it appropriate so to do, follow. I will deal with this subsection in greater detail in a moment or two.
The general functions of the commission are set out in subsection (1) of section 4. By charging the commission with the general responsibility of keeping the law under review, a systematic approach to the problem of law reform can be ensured. Procedures which have been adopted in the past have tended to result in an unplanned approach to law reform, an approach which has meant that many desirable reforms have not been undertaken. By keeping the law as a whole under review, the commission will be able not only to ascertain the areas where reform is needed but also to assess the areas where priority should be given. It will from time to time prepare law reform programmes. In submitting such programmes the commission may recommend the agency by which the necessary examination and research should be undertaken.
It will be recognised that the resources available to the commission will not be unlimited. Furthermore, there may well be elsewhere—for example, in Government Departments —suitable resources which are not directly available to the commission. Accordingly, whilst the commission will in all probability itself carry out much of the research necessitated by its programmes and formulate proposals arising from this research, nontheless it may be necessary to permit the commission to indicate how research can best be undertaken elsewhere. Subsection (2) (a) of section 4 provides for the programmes to be drawn up in consultation with the Attorney General. Obviously the Attorney General is especially qualified to discuss with the commission the needs of all Government Departments in matters relating to law reform. When, after this consultation, its programme has been prepared it will then be submitted by the Taoiseach to the Government. After approval by the Government, which may be given with or without modification, a copy of the programme is then laid before both Houses of the Oireachtas.
The procedures which I have outlined will ensure that law reform will be undertaken in a planned and systematic way. It must however be recognised, that it is desirable that power be given to the commission to carry out research and make proposals in areas not referred to in a programme. Accordingly, the necessary statutory authority to do so is given in subparagraph (c) of subsection (2) of section 4.
Subsection (3) of section 4 is an important subsection. For reasons already outlined, it is not desirable that the Oireachtas should lay down rigid procedural rules which the commission must follow. This subsection does not purport to do so. However it makes certain suggestions which the commission may decide to adopt. First, it is suggested that the commission might receive proposals from members of the public on matters to be included in law reform proposals. This procedure has been adopted with success elsewhere, and important assistance has been obtained from the views expressed by interested members of the public to the commission. Secondly, in subparagraph (b) it is suggested that the commission should, when it considers it appropriate, examine the legal systems of other countries. I know that many members of this House will share the view that although our system of law is derived from the Common Law the commission could with advantage consider the laws in civil law jurisdictions when suggesting reforms and improvements in the laws of this country. Thirdly, a reference is made in subparagraph (c) to the inclusion of draft Bills in the commission's reports. Such a procedure can obviously materially reduce the length of time between the publication of a commission's proposals and their implementation into law and it is hoped that it will be possible for the commission to adopt this procedure when formulating its Law reform proposals.
Subparagraph (d) of this subsection refers to consultation, subparagraph (e) to the establishment of working parties or advisory committees, and subparagraph (f) to the publication of preliminary working papers. These subparagraphs contain provisions relating to the process of consultation to which I have already referred. Adequate consultation prior to the formulation of final recommendations can be of very considerable assistance both in helping to formulate workable and just proposals and also in ensuring their speedy acceptance and enactment. It is hoped that lawyers, both practising and academic, will take part in working parties or advisory committees and that interested members of the public will avail of the opportunity to comment on preliminary working papers which may be published prior to the final formulation of law reform proposals.
The last subparagraph, subparagraph (g) of this subsection, suggests that the commission may in its programmes or reports indicate priorities as well as the desirability, scope and extent of any proposals for law reform which may be made. I know that this House will appreciate that in this field, as in many others, the scarcity of resources —both financial and otherwise—must be recognised. This limitation exists, and of course the commission will be well aware of it. Accordingly, the commission may well consider it appropriate to point out the particular areas in which priority should be given.
It will be observed that section 6 of the Bill will require the commission to furnish an annual report of its activities during the year. The report will also contain references to other matters referred to in the section. After submission to the Government, copies of the report will be laid before both Houses of the Oireachtas. This section together with the preceding section, which provides that a copy of the commission's approved programme is to be laid before both Houses of the Oireachtas, will facilitate discussion in the Oireachtas on law reform matters in general and the work of the commission in particular. I feel sure that Members of this House will welcome the opportunity which will thus be afforded to contribute to the ongoing work of the commission.
Sections 7, 8 and 9 of the Bill make provision relating to the financial aspects of the establishment and operation of the commission. In estimating its financial requirements, the commission will have to bear in mind the amount of remunerated professional assistance which it will require to discharge its obligations under a programme. As the Attorney General will have special knowledge and experience to assist in evaluating the commission's requirements, it has been considered desirable to provide in section 8 that the grants to be paid in each financial year to the commission will be such amount or amounts as the Minister for Finance, on the recommendation of the Attorney General, may consider necessary.
In accordance with the Government's desire to maintain the independence of the commission, it is proposed in section 10 of the Bill that the commission will appoint its own officers and servants. The size of its staff and their terms and conditions will of course have to be approved by the Minister for the Public Service, but the commission's freedom of choice as to the persons to be appointed will not in any way be interfered with. In this connection, I should refer to a misunderstanding which arose concerning the purpose of subsections (4) and (5) of section 10. These subsections do not interfere in any way with the commission's freedom of choice. Their purpose is to provide machinery for the laying down of methods of selecting applicants for offices under the commission. These subsections could be used, if it was thought necessary, to shield the commission from any possible criticisms of unfairness in selection processes.
This section again reflects the view of the Government that it is desirable to provide for a flexible approach to the manner in which the commission will carry out their functions. By virtue of subsection (2) of section 10 the commission will be able to engage persons in a part-time capacity who may be remunerated by the payment of fees. Whilst undoubtedly it will be highly desirable that the members of the commission will have available the services of a whole-time professional staff, it will be appreciated that in addition to full-time professional staff the commission should have power to engage, on a fee basis, outside experts to assist in the task of research and preparation of their reports. In this connection I feel sure that the commission will appreciate the desirability of having available to them, either by engagements made under this subsection or by membership of working parties which they might establish, the advice of non-legal experts from disciplines connected with the subject which the commission are studying. A distinction is drawn in this section 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. The reason for this distinction stems from the aim to permit the maximum amount of flexibility in the appointment of the professional staff of the commission.
Sections 11 and 12 will permit the making of superannuation schemes for the commissioners and 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.
By virtue of section 13 it will not be possible for a person to be an employee of the commission and a Member of either House of the Oireachtas at the same time. Senators will have noted that because of subsection (13) of section 3, a person cannot be a Member of the Oireachtas and a commissioner at the same time. These provisions have been inserted because it is believed that employment with the commission or membership of the commission would not be compatible with the duties of membership of the Dáil or Seanad.
References has already been made to one aspect of the consequential provisions contained in section 14. Subsection (2) of this section was inserted so as not to place any barrister or solicitor who may have become a whole-time commissioner or a whole-time officer of the commission at a disadvantage in relation to qualification for appointment to a judicial office. 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.
In asking the approval of this House for the proposals contained in the Bill, I would like to conclude with a final comment. The problems of Irish society are many. Some are of long standing and are particularly intractable; some are susceptible to solution. A Government wishing to improve conditions in this country must act on many fronts—the economic, the financial, and the social. I believe, that in the past, not enough attention has been given to the important beneficial effects which can be brought about by a comprehensive, planned programme of law reform. The failure to realise this has meant that cases of individual injustice have multiplied and the whole of Irish society has been adversely affected. Many and dramatic changes cannot immediately be brought about as a result of the enactment of the legislation this House is now considering, but its enactment will establish a framework which will enable the difficult task of reviewing, reforming and up-dating our laws to commence on a systematic and planned basis. The cumulative effect of the work which the commission will undertake will, it is confidently believed, be far reaching, for lasting value, and will result in many improvements for many people living in this country.
I have much pleasure in welcoming this Bill which is a very worthwhile one and which I believe will produce very useful reforms in the future. There is a great deal of useful work to be done in this respect and I believe that the commissioners who will initially be appointed for five years will, no matter how hard they work, do not much more than scratch the surface of the work that needs to be done. It is a very good thing that they are about to be appointed and that they will be able to catch up on a backlog of work that needs to be done. I welcome the assurances of the Attorney General that the maximum of consultation will take place with those interested in law reform. The legal profession do not presume to dictate legislation of this kind but they are more than anxious to help to consult and to give their views on the kind of Bills that should be introduced and on the form of those Bills.
It is necessary that consultation with the legal profession should take place because very often they can point out, from their experience from the practical point of view, proposals that in practice would prove unworkable or would create great difficulties. From that point of view I think it is important that the legal profession should be consulted and in that way we would avoid having Bills which would be too academic and too theoretical.
In stressing the necessity for and the desirability of consulting the legal profession, the practitioners, I am not of course for one moment suggesting the academics, the university faculties of law and so on should be ignored. On the contrary, they in their turn have a very useful and important contribution to make to law reform. What I am saying merely is that there should be consultation with all sections who can help in the framing of these Bills including, as the Attorney General has said, the non-legal people, so that the Bills will, in fact, be the result of a balanced approach and will have the benefit of views from all interested sections of the community.
The success of legal Bills in the past, if we can describe them as that, has very often been measured by the amount of consultation that took place. In some of the Bills that we have had of this kind where there was the maximum consultation the Bills turned out to be very good ones indeed. In a few cases where there was a minimum of consultation, where the draftsmen of the Department concerned felt that they knew all the answers themselves and did not have consultation with practitioners and others, the Bills turned out in practice to be not as good as they might have been.
In approaching the question of reform consolidation of the law is essential. I am very glad that the Attorney General has mentioned that this will be within the terms of reference of the commissioners because it seemed to me from reading the Bill that there was some doubt whether consolidation would be within their terms of reference. In many branches of the law there were numerous Acts over the years which together make up the law on the subject and it is imperative to have consolidation so that one can get a picture of what the law is on that particular subject. It is not until one can get a fairly comprehensive picture of the total law on the subject that one can get around to deciding what amendment and reforms are necessary. I am glad that consolidation will be something that the commission will be dealing with.
As things stand consolidation and amendment of consolidation and reform are to some extent mutually exclusive. As I understand it, when the law on a particular subject is to be consolidated in one Act it is not permissible to amend the law in any respect, the consolidated Bill must be exactly what was existing up to then, no more and no less. In order to combine consolidation and reform it would be necessary in such a case first to introduce an amending Bill and then consolidate all the existing law, including the more recent Bill, into one consolidated Act. This is a rather complicated and slow way of dealing with the situation. Perhaps the commissioners will be able to look at this precedent which exists as far as I am aware and perhaps this rather restrictive way of dealing with it can in some way be amended so as to make it more speedy and efficient.
In this connection I understand that in some European countries, in Germany for example, most Bills which go through are in a sense consolidation Bills to the extent that where there is an existing code of law and where it is proposed to amend it in any way the Bill which is introduced is a Bill incorporating all the existing law plus the amendment. Consequently, the Bill which is eventually passed is the existing law as amended and there is one Bill dealing with all the law on the subject. If this kind of approach to our legal Bills in the future could be introduced here I think it would be a very useful way and it would avoid the situation which keeps occurring where one has to go back through several Acts to know the law on a particular subject. It seems to me there should be no reason why amendments in the future should not be done by way of a Bill which would incorporate all the existing law. I certainly hope the commission will consider whether this procedure should be adopted in the future.
It is essential that the commission should get under way as quickly as possible and produce some Bills as quickly as possible. In the past there has been very often a long delay between the time when it was apparent that reform was necessary in regard to a particular branch of law and the time when the Bill was actually introduced. It is essential that the commission should act speedily in the future in regard to branches of the law which obviously need reform and act quickly where, for instance, Supreme Court decisions are given which necessitate an amendment of the law, or in the present context where EEC legislation is introduced which makes it necessary for us to amend the law. I hope the commission will act quickly.
There is no doubt that in the past we have been very slow in introducing law reform. This was understandable when we consider the amount of work the Attorney General had in the past up to the introduction of the recent Bill appointing the Director of Public Prosecutions, and having regard also to the fact that his staff for law reform was a very limited one. The commission, under this Bill will, I understand, be given a fairly big staff; there will be five commissioners dealing with law reform and there should be no reason why law reform should not be speeded up very much indeed as compared with the past. I hope this will be done. They should take a cue from the Revenue Commissioners who are the only Department who act very very quickly indeed if anything happens which makes it appear to them that they are going to lose taxes or duties of any kind. This is a precedent which the commissioners should consider.
One of the things which occurs to me about the Bill and about the Attorney General's speech is the reference to the drawing up of programmes, submitting them to the Government, getting their approval and so on. This sounds as if it could bog down procedure to some extent. It sounds as though the commission might fall into the trap of getting too involved in programmes, what particular branch of the law they should take first and how they should approach it. They might spend too much time drawing up such programmes and submitting them to the Government and waiting for their approval. I hope that kind of situation will not arise; I hope the commission will show that they realise the urgency of the position by producing a few Bills as quickly as possible as an earnest of their good intention to get their work under way quickly.
As well as introducing major reforms which, of course, is what the commission are being set up to do, I hope they will also introduce some precedent or rule in regard to the way in which drafting of Bills should be approached. As far as draftsmen are concerned styles have varied very much in the past. It is important that some rules should be laid down. I am thinking in terms of things such as the position of definitions in Bills and the listing of repeals in Bills. It very often happens that there is a list of definitions at the beginning of the Bill but in addition to that list throughout the Bill there are further definitions. This certainly makes life very difficult for anybody reading the Bill or referring to it for help in deciding what is the law.
There is also the position of repeals. In a Bill which is, in fact, repealing several earlier Acts, the ideal is that there should be a schedule at the end of the Bill setting out the repeals and, if possible, a schedule setting out what Acts have been amended as well as repealed. This would enable the practitioner or anybody who wants to refer to the Act to see at a glance in what way the law has been amended by that Act and in what way previous Acts have been affected by it. This would be very useful indeed and would save a lot of time and prevent mistakes which can be made if this is not done. I would ask the commission not to make it their major objective but to bear in mind to try to introduce codes of drafting to which draftsmen will conform in future and which will give a certain amount of conformity in regard to points such as the ones I have mentioned.
I would like to say that the kind of Bill which the Law Reform Commission are likely to introduce would in many cases be the kind of Bill which would be appropriate to be introduced in the Seanad. I can assure the Attorney General that if such Bills are introduced here they will almost certainly get a better welcome than another Bill got here today. In conclusion, I would like to welcome the Attorney General on his first appearance in this House.
I should like to welcome the Bill and, at the same time, welcome the first Attorney General to be permitted under the Rules of this House to address us and to introduce the measure. I welcome the man with the measure, which one does not always find oneself being able to do easily.
I do not propose to delay the House on this Bill. It might be correct to say more expressly than the Attorney General has said in his address, though he has implied it, that really our record with regard to law reform is nothing short of lamentable. It has been extraordinarily bad. The failure to make progress in this area was most evident when a good deal of light was being shone in the paths of the people whose duty it was to walk there. For example, the Bankruptcy Law Committee was set up in August, 1962. It took almost ten years to report its extraordinarily good document, which it did at the beginning of March, 1972. I am not competent to pronounce on the decisions they reached and the recommendations made on the various aspects of the whole creditor-debtor relationship but I can say this about it: nobody charged in the future even with the new law of bankruptcy will be able properly to advise on it without the assistance of this report. They did not merely make a report or an analysis of the problem with which we were faced: they actually drafted a Bill, which has been there for two years.
The Committee on Court Practice and Procedure have been there for 13 years, since about 1962 or 1963, and have made 19 reports. During that period, six people have been working voluntarily—and I think their names should go on the records of this House—two judges: Judge Walsh, Judge O'Flynn; a solicitor, Brendan McCormack; Dr. Andrews, Juan Greene and Kenneth O'Reilly Hyland. They have been working for nothing in relation to this matter for that long period, and have prepared 19 reports. Of these, three have been adopted. I think I am correct in my analysis, but Senator Lenihan may——
I happen to have been the Minister for Justice who——
As regards the political distribution of blame in this, if we want to go into it——
We shall not go into it.
I could follow Senator Lenihan, but it would not be wise or helpful to this debate. But many of them have been totally ignored. One of them did not make a recommendation. Those that have been ignored include matters of such importance as the service of court documents by post, which is a reform intended to save expense and cost; a recommendation for a sweeping reorganisation of the Circuit Court and the District Court; a recommendation, again to save expense, an extension of on-the-spot fines where no moral blame attaches; improvements in the machinery for the enforcement of monetary judgments, and desertion and maintenance. I must admit that recommendation was not made sufficiently long ago for anything to be done about it.
In addition to that, there was the consumer protection law paper, the National Prices Commission: we had the National Consumer Advisory Council report; and the Kennedy report. I accept that there were certain contentious matters involved which may finally involve a decision for or against by the Minister in charge. However, these decisions do not appear to be made or if made were not published. I am saying all that with a view to asking ourselves why it is so. Why has our record been so poor? How can we be hopeful that that may be changed, as I hope it will be, and suggest reasons for it?
Incidentally, if one is a member of a commission that sits for ten years and really works on it, it is very distressing and most chilling for one's energies and hope for doing any good if you see no action on your recommendations. If you are in Bleak House operating the bankruptcy law, knowing the whole thing is antiquated, archaic and absurd, and inappropriate to achieving justice, the very administrators of justice themselves must feel: "What are we doing this for?" They must lose heart in the process.
I should like to suggest to the Seanad that there are some good reasons for this being the situation. This Bill may—hopefully—solve the problem. It should be said that we have had good Ministers for Justice during this period. They were not all good Ministers for Justice, but some were good and we have a good one now. During a large period of the time of this State, the Minister for Justice has been performing the duties of another Minister primarily, that is, he has been a Minister for the Interior. He has been wholly engrossed with the security problems of this State. He has been involved in day-to-day contests with the people who have questioned the legitimacy of the State, who feel entitled to take up arms to overthrow it. That is one reason there has been such slow progress. The Minister's and the Department's orientation in the direction of the maintenance of order has distracted attention from the law reform aspect of the Department's duties.
Another reason is a weakness which is general in the administration of our affairs. It is this: the bad is certainly the enemy of the good, but not nearly as effective an enemy as the best. For example, the report on bankruptcy could presumably have been laid before the House shortly after it was read. This was not done because, as everyone is aware, there is a harmonisation of this law going on in the EEC and we want to end up with a code which is exactly right. Meanwhile we continue to tolerate wrongs that could be cured, while we wait for the best to happen. That is a mistake. Part of the blame should be taken by lawyers as such, who are prepared to tolerate, without expressing sufficient concern, defects that they are perfectly well aware exist, and there has been insufficient lobbying on their part to change the law. Not merely do I wish to see the law being reformed, but lawyers also.
I like particularly the reference of the Attorney General to the idea that this commission will not merely be looking to the disciplines of law but to other disciplines—sociologists, psychologists and economists. Of course, the law and economics and sociology were once very close together. Their separation is bad, not merely for the lawyers, but for the solution of social problems.
In my own profession we are affected by the fact that traditionally we are the rich man's man of business. He is too damn bored to look after all that stuff, so he hires a character such as myself to take it all over from him. Our concern about the minutiae of the wealth tax is real. Our ability to detect flaws and injustices in it is considerable, and our desire to change it is very real.
Our interest in that is more immediate. Whatever might be our concern for a woman who got cut in her pension because she had a few hens in her backyard, we do not naturally give the same attention to social welfare legislation as we give to capital taxation. That has tended to reduce our social concern as a profession. We have insufficiently made the public aware of the injustice done through bad laws not having been changed. We take part of the blame.
I was glad to note the tone in which the Attorney General ended his submission or his address. People can learn from lawyers who concern themselves about these things. The general idea is that the only welfare that is worth agitating for is welfare obtained from the central Government through a distributive system of taxation, whether of income or capital; but law reform is of course part of social reform and injustices between people are very real. If injury is done, if the innocent suffer and the guilty go unrebuked, somebody ends up with something in pocket that he ought not to have. If through our national concern about improving court procedure and practice, court costs became too high, who pays for that? Is it the people who can afford to go and get it or the people who do not try to obtain it because they cannot afford it because of the enormous cost and are deprived of proper free legal aid?
Many people could relate their experiences in this field. People may promise to do something and, when they fail to do it, say "I did not put it in writing, I cannot be sued". In general, that is not true but there are cases where it is, unfortunately, true because of a statute enacted in the seventeenth century, in 1689, in Ireland, the Irish Statute of Fraud which someone has said is an instrument responsible for more fraud than any other like statute. Similar legislation has been abolished in Britain since 1954—21 years ago. Why have we waited 21 years to do something similar? Why was there not provision regarding contracts that take more than a year to perform. That is one you cannot escape by merely saying you did not put it in writing. People should not be able to avoid their responsibilities by saying there was nothing in writing.
Take, for example, the question of recovering interest on late payment of debts. That derives from a law that was enacted in 1833 and it means that there are people who owe others money who delay improperly in paying their debts, and for whom it is cheaper, having regard to interest rates at present, to pay law costs of defending the proceedings than to pay interest on the money owed. The person who is being deprived of his money may be the weak one. It is very often the position that the plaintiff who is looking for recovery of his money can ill-afford its loss. It must not be assumed that the boot is on the other foot. Even in the Middle East, where usury is regarded as being religiously wrong, you can get a proper interest return if you have a commercial contract. If you sue a man in Teheran you find they have a more up-to-date code than we have at the moment.
In regard to limitation of actions, there is the case where a person does not know he is injured until the period has expired. There should be provision for relief in such cases. On one occasion my daughter had just left a room when the ceiling fell in on the place where she had just been sitting. On investigation we found that the builder, about 12 years previously, had erected the ceiling with one inch lath instead of two inch lath. There was no legal right of recovery against him. There is no doubt about that because I did consider it.
Again, take the case of the sale of consumer durables, where there are guarantees. It should be an offence to use the word "guarantee" in respect of what one gets because the manufacturers are giving them so as to exclude the liability they would be under if no guarantee were given. Why do we tolerate this? This ought to be a matter for social concern and social injustice results from our failure to do anything to remedy the situation.
In relation to proceedings, is the adversary procedure right in all cases? Is it appropriate for family cases? Do we need a special procedure for small claims which would reduce expense? Do we need a system where assessors could be brought in to help a judge to understand matters of which he has very little knowledge? Do we need changes in our labour law in regard to dismissals? In due course all these different fields should be covered by changes in the law. This would bring about great benefits in the relief of social tension and would let people know that our law courts were busy about securing justice for them, in protecting their rights.
The law would be more clearly enforceable if it were more obviously acceptable and if people felt more clearly that they were getting justice through its provisions. If the lawyers who work on this commission consult with their colleagues in other fields I have mentioned, there could be enrichment for all. It is a great mistake for disciples to stand apart. The legal training is a good one and social workers would be greatly strengthened in assisting clients to establish their rights and cope with their problems if they also had legal training. In so far as they make lawyers more aware of social problems, these provisions will be good for them.
This Bill is worthwhile because it shows a frank recognition that under the existing system we have been unable to get law reform despite all the good work done by people in giving advice, because of the engrossment of the officers of the Department of Justice and the Minister with all his problems. Now we have got an effective transference of function with regard to law reform to an office which has been relieved of their burden to enable them to take on this additional duty. That is an encouraging thing and affords reasonable hope for the future. There is also a structure in the Bill itself with regard to programming and reports to the Houses of the Oireachtas which will enable us to have full discussion on several matters. Among those interested in social welfare and social reform, I hope to see an increase in awareness of the importance of law reform. For that reason I certainly welcome this Bill.
This is a Bill which undoubtedly one must welcome in that it expedites in practical terms the administration of law reform. If that is achieved, certainly it is welcome.
We have had reports over a number of years, some of which I was associated with as Minister for Justice. I refer in particular to the Criminal Procedure Bill based on one of the earlier reports of the committee appointed to recommend reform of the law, which abolished the old-fashioned deposition system in criminal proceeding. There is a number of such reports in the archives of the Department of Justice and I take it they will be transferred to the new institution to be established under this Bill.
I welcome the fact that there is a specific institution now being established to do this because what has been happening heretofore is that what one might charitably call an administrative blockage has been occurring between the Department of Justice and the Attorney General's office so that excellent reports on which people have given excellent service over many years were rarely implemented. I would like to see expedition under this Bill when it becomes law because we do not want a new commission going back over the old course again. There is a number of excellent recommendations under the chairmanship of Mr. Justice Brian Walsh, chairman of the committee, that can be implemented almost forthwith provided the administrative procedure is established to do the job.
I could talk for three hours, as could Senator Alexis FitzGerald, and some of my colleagues on the various areas of reform. We have positive reports on the desk that need to be implemented and can be incorporated into legislation. All we want is to set up the machinery now. I would appeal to the Attorney General now that he has taken responsibility for this particular area, and if this commission are going to be established to ensure that this legislation will not be just another delaying bureaucratic exercise.
The merit I see in the Bill is that an institution will be established that will get work done. We do not want an institution to be established to investigate the law reforms that are necessary. The law reforms that are necessary are adumbrated already in a number of reports which the Attorney General has to hand. Further law reforms are obviously necessary but they are immeasurable because we have been so slack in this respect both in Britain and Ireland. Without going into any outline of the details of the reforms that are necessary in the law reform area my only strong appeal to the Attorney General is that in the establishment of this commission it will not be manned or staffed by people who bring it on themselves to go into a further reinvestigation of law reform that has been taking place over the past 15 years. The reforms are so obvious and patent that any commission worth its salt can bring in recommendations to the Attorney General very quickly.
One aspect of the Bill which meets the point I am making is the provision in subparagraph (c), subsection (3) of section 4 for draft Bills to be submitted by the commission. It states:
prepare, or cause to be prepared, and include in its proposals for law reform, draft Bills.
I welcome this very much because it puts the matter on the Attorney General's table. They can, if they wish, include in their proposals actual, specific Bills. That cuts through many bureaucratic processes and it means that the commission, if properly composed, can say to the Attorney General: "We believe this is how it should be done but in addition to that, we have considered the matter in detail and here is our proposed Bill in draft form."
I welcome that from the point of view of expedition because everybody knows so well what needs to be done in so many areas that this commission does not have to embark on any great area of research initially.
The final point I wish to make is that the committee recommendations are there gathered over the whole area from bankruptcy law to criminal law. The areas have been defined; the recommendations are there and any group of competent lawyers can discuss the matter over an hour and recommend what should be done. It is simply a matter of doing it and this is where the real crunch comes and this is why I welcome the Bill. It is an attempt to establish or institutionalise an office which would be properly staffed with a full secretariat to get on with the job. There is no reason why law reform proposals should not emerge from this commission implementing all the reports that are already on hand over the next 12 months. Everything is there except the simple matter of execution.
That is the pragmatic side of it. I welcome the Bill generally as an ongoing Bill that will be there to deal with further social and legal reforms as they arise in the years ahead. I hope —and I would like to hear the Attorney General's view on this—that the Bill will not enable the commission when established to go into yet another delaying investigation process but that they will proceed in a practical manner to adopt reforms that are so obvious, have been recommended and are there for all to see.
I would like to extend a very warm welcome to the Bill. Indeed, I cannot think of any Bill to which I would extend a warmer welcome than one which would, at this point in time, establish a serious commission on law reform. We must fault ourselves as a nation for not having appreciated the very significant social function which law has and the necessity for a constant monitoring of our laws in the broad sense of both statute and judge-made law, substantive and procedural law. I am glad that Senator FitzGerald broadened the scope of his contribution by analysing in some detail our attitude towards law and legal research. He was right to place some of the blame on lawyers and I would go even further than he went and put much of the blame on the universities and law schools for not having had sufficient consciousness of the importance of law reform and not having initiated and sponsored research in the absence of a Government-established commission of this kind. The sad thing is that, although we inherited a Common Law system subject to our Constitution, we did not inherit the noticeable zeal for law reform of the British jurisdiction. We did not inherit their capacity to establish various types of committees at a high level, such as the law reform commissions, the criminal law reform committee and the private international law committee which have monitored the law in that jurisdiction and which have brought in a considerable number of reports.
It might be useful to refer in passing to the existence of a comprehensive analysis of law reform in general in Britain including the work of the law commissions which were established under the 1965 Act. This work, which came out last year is Law Reform and the Law Commission by J.H. Farrar. It contains a series of appendices at the end which show just how many reports were brought out by the various law reform committees including the law commissions and the degree of implementation of their reports.
I should like to reinforce very strongly what Senator Fitzgerald said about the very bad record of implementation of the recommendations of our own Committee on Court Practice and Procedure. Perhaps we should ask ourselves why the reports of this Irish committee, including the many important recommendations for reform contained in them have not been implemented. If one looks at this record one must contrast it with the record of the Law Reform Commission in England which has a remarkable record of success in having its reports implemented into specific legislation. I think the reasons behind this contrast provide the justification for establishing a Law Reform Commission.
The complexity of modern life and the complexity of legislation, together with the necessity to monitor judge-made law in order to ensure that defects or anomalies do not go undetected, require the establishment of a permanent commission with sufficient staff, with a central role, and with a very direct relationship with the Attorney General and with the Government if they are to bring in a series of recommendations for reform, which will gain political acceptance in such a way as to be implemented into legislation very quickly. Therefore I would also like to support the provision in the Bill requiring the Law Reform Commission to draw up programmes of law reform in particular areas, because I think this will be a very useful framework in which to consider the reform of the law and it will allow outsiders not involved with the Law Reform Commission to express views and make recommendations. I am thinking of universities, not just the law schools but also the other disciplines; interested individuals or groups; the professional bodies; the Incorporated Law Society and the Bar Council who should be encouraged to address themselves to a programme of law reform and to have detailed comments and observations on that programme.
It would be wrong not to place very strong emphasis on the social function of law. The Attorney General in introducing the Bill to the House left this aspect to the end of his speech. I would have liked a speech of similar length developing what he was saying in the final paragraphs about the importance of law and its significant social function, in reinforcing attitudes and in preventing opinion changing especially in areas of family law.
I think we saw a good example of this in the Seanad earlier this year when debating our present law in Ireland in relation to the illegitimate child. The concept of illegitimacy is reinforced by the law which we have allowed to remain on our statute books without any regard or concern for its reform. This could be significant in preventing the evolution of a genuine reform of attitudes in the community in Ireland. There are many other examples illustrating that because we have allowed Victorian statutes to govern the particular area the law does not reflect modern developments and thinking and is alien and static in its response to the needs and the values of the people. The law is in danger therefore of being regarded as irrelevant or obstructive rather than something which can have an enormously creative element which can lead and stimulate changes which respond to the changing attitudes of a particular society.
This point is made very well indeed by Lord Scarman in his Hamlyn lectures which have been published as English Law, The New Dimension, where he analyses the way in which the whole social welfare code has developed, and that it has evolved away from the field of operation of lawyers. As a result most lawyers now know nothing whatsoever about social welfare and are not interested. It has become a technical area of administration which is not of concern to them. I would agree with Lord Scarman's plea for a re-analysis of the position and for an attempt by lawyers to evolve their own discipline and to be interested in broader areas than just what is now construed as lawyers' law, the criminal law or the law of property in a narrow sense.
Undoubtedly, the practitioners—the barristers and solicitors—and the academic lawyers have allowed the field of law itself and the scope of what they consider to be lawyers' law to become very narrow, rather rigid and unresponsive to modern developments. For example, this is evident in the approach to legal education, which I think is a very key part of this.
It is interesting to note the extent to which the law of property is still primarily concerned with the personal occupier of property and the trespasser upon his property and so on and is not in fact related to urban legal studies or even planning and the social implication of law. It is a very narrow focus. This reflects a tradition that we have inherited from another jurisdiction, which we have done very little to assess and to examine as to whether we have cast the whole discipline of law much too narrowly and whether it would be possible for law to play a much more creative and stimulating role in achieving social reform.
I should like before looking in more detail at the proposals in this Bill to ask what is almost a rhetorical question, how far one can seriously consider law reform here without having inevitably the problem of the barrier —I use the word deliberately—of certain provisions of the Constitution. I would now like to ask the real question of the Attorney General if he would indicate in his reply whether the reform of the Constitution, or certain aspects of it are within the terms of reference of the Law Commission? They could deal with many areas— trade union law, collective bargaining and be unable to introduce reform because of the problem posed by the wording of the Constitution itself. The Law Reform Commission will only go a very small distance indeed in these areas if it cannot recommend amendments of the Constitution. Another field would be the area of education. It would be very welcome if the Law Commission were not debarred from considering reform of either the Constitution itself or certain specific Articles of the Constitution. I would place a high priority, particularly in the area of family law, on the necessity to reform the Constitution.
It might be useful to look at the way in which the English Law Commission, established under the 1965 Act, approached their task because in many ways their terms of reference were similar to the terms of reference proposed in this Bill. If I might just quote briefly from the book I mentioned; Law Reform and the Law Commission, by J.H. Farrar. He says on page 72:
The statement of the basic general values of the English Law Commission is contained in the First Programme.
They felt that the law should be simpler, more widely accessible, more easily understandable and more certain than it was. Statistics should be interpreted with common sense. A proper balance should be struck between the rule of law and the administrative technique of a highly developed industrial society. The legal system should be brought into harmony with the social and economic requirements of a modern state. In particular, the operation of the legal system should be adjusted to changes in prices, wages and relevant factors affecting the cost of living. Lastly, the legal system should be capable of making a rapid remedial response to defects exposed by judicial comment and other informed criticism.
Then Mr. Farrar points out that these values and the approach of the Law Commission to its task were, in fact, very consumer orientated—orientated to the consumers of law in a sense and also to the practitioners in the field. He would have welcomed a more radical and fundamental approach and analysis. We face a different situation in a sense in this country, because we have not had the updating, recasting and codification of as many of the old British statutes which have long since been repealed or amended in Britain.
I agree with the point made by Senator Lenihan that the Law Commission could even approach its task at two levels. One level could be the level for the homework that was either being done or does not need to be done because the point is so obvious. For example, it must be obvious beyond belief that the criminal age of responsibility of a child of seven is not acceptable. Perhaps that is rather a bad example because it is in a complex area of family law which may require further study. But, in my view, we could find several examples in the criminal law. There is the anomalous distinction here between felonies and misdemeanours. The Larceny Act 1916 has been very well analysed and proved to be quite defective and there is even a problem in extraditing between the two jurisdictions because of the lack of equivalence of the offences involving fraud and dishonesty. These are areas in which the Law Commission could act quickly and could bring in miscellaneous Law Reform Bills or Bills relating to particular subject matters.
Another area that is badly in need of reform is the jury system—the establishment of the jury system under the 1927 Act. There are many examples of this sort. I am glad to see, both explicitly and implicitly, in the thinking of the Attorney General introducing this Bill that he is envisaging that the Law Commission will look at social areas, such as family law. Here I should like to ask him if the Committee on Court Practice and Procedure will continue to have, as part of its terms of reference, the study of family law? The terms of reference of the Committee on Court Practice and Procedure were broadened not so long ago to include the study of and recommendations on family law. Although I share Senator FitzGerald's respect for that body—and it has been a very hard-working, very unselfish and unpaid committee—I do not think its composition, its original terms of reference or its structure make it a suitable body for the study of family law.
It would be much better to remove family law from the Committee on Court Practice and Procedure and to place family law, including the procedural aspects about a concept of a family tribunal, securely in the lap of the Commissioners on Law Reform. Those who have been agitating for so long about reform of family law—I am thinking of voluntary organisations such as CARE, AIM, ALLY and all the other organisations who are impatient with the lack of progress in the field of family law— may feel that to hand it over now to the Law Reform Commission, when established, will mean a delay of another six months, a year or two years. For this reason the question of priorities will be very important and to what extent the Attorney General will influence this choice of priorities. If family law is to come squarely within its terms of reference the Law Reform Commission must of necessity make it the top priority, because this is the area in a real sense in which we most need law reform.
Another aspect receiving scrutiny at the moment, but which is singularly unsatisfactory, is the area of legal aid. I am aware that the Pringle Committee is sitting and is to bring in recommendations on civil legal aid. But, as I know, and other Senators will agree, since we discussed this on the adjournment of the House a very short time ago, the situation relating to criminal legal aid is deplorable. One branch of the legal profession, the solicitors, have opted out of the scheme since last December. The other branch, the barristers, are to consider doing likewise tomorrow.
It is interesting that the emphasis is not, as it has been over the past few years, primarily on remuneration for the job. It stems from a complete frustration with the terms of the 1962 Act and a desire for a radical overhaul of the system of criminal legal aid. Once again, is this something which could be a priority of the Law Reform Commission? If they were to undertake it, would that in itself necessitate the sort of delay which would not be tolerable in the circumstances? This is a very key point—how quickly the Law Commission will be able to get into a working pattern and how quickly it will be able to approach the very general areas, the fairly systematic codification and improvement in the lawyer's law in the narrow sense, where either anomalies have arisen or the law is quite obviously and demonstrably out of date.
We have the very useful reference point of reforms in another jurisdiction, or perhaps several other jurisdictions, with the advantage of having seen how the changes in legislation work out. It is of enormous assistance to be able to look at precedents in other countries and see how the reforms worked in practice.
There is also very urgent need for reform in areas where agreement on the nature of the reform is not quite so automatic and about which there needs to be considerable thought. In a sense we need two law reform commissions—one in this second area where the changes in the law will have very considerable social implications.
I should like to express support for the view that membership of the Law Reform Commission should not be confined exclusively to lawyers or people with legal training. The Attorney General in his introductory speech made it clear that he appeared to have an open mind and certainly to be aware of the two schools of thought and of the fact that the Law Commission in Britain is confined to people with legal training.
The present development, thinking and analysis is attempting to broaden our concept of the role and function of law, to get away from a narrow approach to it and be aware of the essential contribution of other disciplines and the essential comment and contribution which they have to make on law reform. I welcome the fact that the Law Reform Commission might have from the beginning a non-lawyer, somebody from another appropriate discipline such as social science, as a member of the Law Commission.
It would be a great mistake to talk about the membership of the Law Commission in a half-hearted or mean way. One of the mysteries of this Bill is what will be the end-product. If it is a part-time Law Reform Commission with a small staff and with people who have other serious commitments, it will not take much of an impact and will become like the Committee on Court Practice Procedure, whether it likes it or not. It is therefore essential to emphasise that the members of this Law Reform Commission, at least for the first five years, when it can make an impact, should be fulltime people and have sufficient backup services, staff and moneys to go outside for part-time expertise in particular areas.
For once do not let us be mean or petty in setting up this commission. Let us give it a full mandate and put all the resources of what is, I admit, a small country which has to be careful how it deploys its resources at its disposal. Let us be generous in this matter if we really want to get full benefit from the impact of the Law Reform Commission.
I would welcome some clarification on the precise relationship which the Law Commissioners will have with the Attorney General's Office and also with the Department of Justice. The Bill quite rightly places emphasis on the independence of the Law Commission. Yet I can see in some sense that the commission must respond and shape its priorities in the light of what is considered to be the areas which most crucially and imperatively need law reform. I would welcome details in his reply by the Attorney General.
That will be a thorny nettle.
There is nothing like introducing a thorny nettle, rather than looking specifically at various provisions of the Bill that are more appropriately examined on Committee Stage. It would be interesting at that stage to examine in more detail the precise functions of the commission and the way in which it is enabled to set about its task.
That is all I want to say on this Bill. I welcome the Attorney General on his first visit to this House, and, as far as I am concerned, he could not have brought in a more desired package.
I should like to join with Senator Robinson in welcoming the Attorney General to the Seanad. I also welcome the introduction of the Bill. There are a few points I should like to make. I am very glad he has decided that, in the process of examining the priorities for law reform and the pattern which that law reform should take, he has decided there is a need to broaden the approach to a new and more up-to-date understanding of the whole question of criminality in particular and of the origins of criminal acts in society— the psycho-dynamics of criminality in human beings. This would entail a commission which would have, as he mentions, five people, one of whom would probably be a social scientist. I welcome that. I wonder to what extent the social scientist, no matter how talented or knowledgable he may be, will be able to survive the four-to-one loading against him in any such commission when he attempts to bring in reforms in the laws in Ireland. It is again one's sad duty to have to comment that since the new State was set up even in relation to law reform very little original contribution has been made by successive Governments of all parties to initiate laws of which one might feel proud.
It may not be possible for the Attorney General to tell us but it would be of interest to know what he would consider to be his priorities were he to tell this commission his priorities for examination in relation to the law and criminality generally. One of the problems which have puzled me over the years, when discussing the Department of Justice Estimate, was how it happened that successive generations of legislators, most of whom spent some time in prisons and jails, appear to have learned so little about what should happen to somebody who is put in prison or confined to jail under our laws. There does not appear to have been any attempt made by any of those who happened to have the power, or eventually were given the power in any party, to use their experience of the horrible life of the prisoner or the person isolated from society—to give the public some idea of the humiliation, the degradation, the suffering, the sense of isolation and the whole undermining of self-respect implicit in our penal system, including our prisons. How is it that none of them has made any attempt to humanise the prison system, the court system, the legal system generally or the penalties extracted for what are called crimes in our society?
The general overall determinant in the way in which we deal with people considered to be criminals is nearly universally a punitive one. It is based on the assumption that the person is a bad person and that he must be isolated from society and that this in some way will make him better. Of course the general experience is that it does not make persons better. It makes them worse—it simply reinforces any character defects they have and makes sure that recidivism is nearly an inevitable consequence of imprisonment.
I wonder whether it will be possible for the commission so to slant their recommendations in relation to law reform that they will try to introduce an element of understanding of the origins of abberant behaviour by human beings in society—that this does not stem from the fact that they are the bad people and that we are the good people. It nearly inevitably stems from the fact that because of social pressures, environmental pressures, family stress of one kind or another—broken homes, drunken homes, institutional life, lack of love and the various pressures which go to create the product—the disturbed personality becomes the criminal.
The main point is, of course, that he is the innocent end product of the kind of society in which he grew up— the too large family, the family where there was not enough wealth, where the father was out of work, where there was drunkenness, overcrowding of the home and so on, where frequently the parents had little or no responsibility. It was not their fault, the lower income group, but because of that they suffered and because of that their children suffered. Least of all, the most innocent persons of all, is this end product who end up in our courts, humiliated and degraded and sent off to our prisons with lectures from members of the Judiciary as to how they should behave themselves, treated in such a way as to end up being demoralised. They feel that the easiest thing for them to do is to continue to be angry with this society that had the lack of concern to make them like this in the first instance and then treat them with such a lack of compassion and understanding in the second.
That is a particularly important general principle which I hope the commission will try to import into the recommendations which they give to the Attorney General and to the Government of the day, which will try to change altogether the general pattern of the indictment in court and then the general pathway towards inevitable punishment, the contempt and the anger that we have for the psychopath who of course has become like that because of the way in which he was treated. Instead of understanding his problem we punish him for it and make him worse.
It is quite obvious that the implementation of the law or the use of the courts or the activities of the courts has now become very diversified with the introduction of social workers, psychologists, probation officers, psychiatrists and so on. Therefore it would appear to me that the commission could usefully be rather more diversified than is proposed by the Attorney General. The commission seem to be greatly overloaded on the side of the law. Whatever about any of the other professions in our society—none of them has a particularly brilliant social enlightenment—I would be inclined to put the legal profession pretty low in the list of those with advanced or radical or even forward looking views on these matters. Have they begun at all serously to understand the idea that the person before them is a victim of society and should be treated like that rather than somebody who must be sent away and punished?
I would be interested to know whether the Attorney General thinks there is anything that can be done or whether he thinks it will be one of their problems, that is, the question of the assessment of the present position in relation to the McNaughton rules, the question of criminal responsibility. I know that it is a very old question, it is one that is being debated in every country in the world —the implications of it, anyway. Criminal responsibility is being debated in all the law courts in the civilised world. So far there does not seem to be any satisfactory outcome of it. There have been advances made from the original McNaughton rule about the responsibility of the individual once the crime has been proved to have been committed by him.
Certain advances have been made from that time, but now we know that human motivation is a very complicated thing indeed between the psychological pressures, social pressures and the pressures of unconscious drives of one kind or another, and the uncontrollable impulse. I fully appreciate that it is a very dangerous quicksand for anybody to get involved in, to try to come up with a solution to the problem of the culpability of the individual or the responsibility of the individual in any particular crime. At the same time, I feel it is about time that many of the extremely talented people whom the Attorney General will have at his disposal came to some kind of decision on this particular issue to try to get it away from the very uneven kinds of judgment which are given under the McNaughton rules.
There are a number of other points that I should like to suggest that the Attorney General might care to put to the Law Reform Commission. One of them is—I am sure it will be dealt with under the Mental Treatment Acts—the fact that the criminality of the attempted suicide is obviously absurd, but it is an interesting reflection on the kind of thinking that went on at one time in our society and that is in my time. In my experience I have had reason to get people away from the courts by certification rather than permitting them to go through the outrageous performance of being arraigned for having attempted suicide. That does not happen any more, I know, but it is an interesting reflection of the extraordinarily inhuman kind of thinking that was associated with our laws in relatively recent times. That now appears to be clear to most people and I would imagine accepted by most people.
I would then go on to try to suggest that there are other attitudes, affecting minorities admittedly, in relation to a number of our laws which I am quite certain in ten, 15 or 20 years will be looked back on as archaic and unthinkable and inhuman. That was our attitude, and still is according to statute, in relation to the unfortunate suicides. What happens now is that everybody does what he can to help them and to deal with the problem that makes them get to that stage of depression which makes them wish to end their lives.
There are other attitudes in our laws which are just as intransigent and inhuman, and just as unthinking. One of them is in relation to the homosexuality question. I wonder if the Attorney General will ask that consideration be given to this. Homosexuality is simply a kind of sexuality completely normal for the homosexual. There is nothing abnormal in being homosexual if you happen to be born that way or become a homosexual. It is no more credit to me to be a heterosexual or no more wrong for me to be a heterosexual than it is for the homosexual to be a homosexual. Unfortunately it is not looked on in that way and it is still a crime in our society.
The odd thing is that no attempt has been made to deal with this matter in a very long time. As far as I know our statute goes back to 1885. I know that attitudes can be taken up in regard to this question and I do not object to that at all—both for and against the idea of homosexuality— but it is absurd, like suicide or illegitimacy or any of these problems which we choose to pretend do not exist here, to pretend that there is no such thing as a homosexual problem in Ireland. Of course there is. There is no sense whatever in ignoring the fact that it is the cause of an enormous amount of great distress for many people.
In psychiatric practice I find it to be a very common presenting problem by people, presenting in different ways in the form of depression and alcoholism, people who are simply misfits in life and drop out in all sorts of ways. But they all conceal this kind of homosexuality of one kind or another—the appalling sense that they are outcasts and not wanted in society, which they are not, and the whole Irish society is very unkind to them and very unchristian if I might use that much abused word. Because of that, suicide is another very common sequel to the unfortunate homo-sexual's attempt to live with this disability, which should not be a disability. It is not a disability. It is perfectly normal, but in our society it is a very crippling disability.
Therefore I would ask the Attorney General that we do something about at least having a debate on this subject and let people decide for and against as they did in relation to contraception. We can keep on working to change, but the law as it is at the moment is in psychological and psychiatric terms outrageous—the fact that a person can go to gaol simply for being a homosexual. This leads to various pathetic devices being adopted by these people in order to avoid the consequences in our society of being discovered to be homosexual. The only reference I can find is in the Criminal Law (Amendment) Act, 1935 where there is a reference to public indecency, offending modesty and so on. I think that is the circumstance in which they can be charged. What happens mostly is that they are encouraged to get out of the country, like pregnancy in the old days—the young ladies who were pregnant, had their babies in England, or as they are now being encouraged to get out of the country in relation to therepeutic legal abortion. The 1935 Act dealt with rape, brothels, indecent assault, prostitution and contraception but it did not deal with the problem of homosexuality.
I know that the Attorney General happens to be a very enlightened person. In all his expressions in the past he has shown himself to be an enlightened person and not afraid of taking an independent stand if he is really convinced on a particular issue, and I would ask him that he do what he can to try to see that this matter is dealt with as it should be dealt with by a Government rather than being introduced by an individual like myself or some other Senator. This is the responsibility of a society and a great hardship is being imposed on a minority. I know it is a minority, but they all have rights in our society, rights to be cared for and cherished equally. At present the law is very much slanted against them. The time will come when we will look back on our laws in relation to homosexuality in the same amazement as we are now looking back on our attitude to censorship or suicide.
The other question I know is premature and over the years I have been involved in introducing subjects which after a time become more acceptable and for that reason I felt it was wise to at least start things going. That is the law relating to therapeutic legal abortion. There is no doubt that again this is a minority problem but it is a real problem. The figure is an increasing one, 2,000 I think was the last one. I read of young Irish girls going to England for therapeutic legal abortion. I have spoken about this subject before and I do not intend to deal with it at any length. My motivation is primarily the undesirability of the unwanted child being born into society. Because of my association with young people, psychopaths in particular, most of the people that I have dealt with in pursuit of my practice—the unwanted individual, the unwanted child—are people with a very bad prospect of happiness in society.
The other side concerns the right of the woman if she decides she does not wish to have the child, the right to exercise that wish. One is dealing with a process which has the phrase "therapeutic legal abortion". This is where the law of the land, in this case Britain, has agreed that in certain cases it is a therapeutic act to carry out an abortion on a particular individual. There is involved in that the decision of the law officers of the State, of the elected representatives of the State, backed up by the opinion of reputable medical, psychiatric, gynaecological opinions, who having assessed the rights and wrongs of the particular question at any time have decided that in those circumstances this procedure should be permitted.
Important yardsticks that will have to be invoked by the Law Reform Commission will be in the areas of homosexuality, therapeutic abortion and, of course, divorce. I shall be interested to note what the belief of the Attorney General is if something is considered to be unconstitutional as it is in relation to divorce in our society. Can the commission deal with that kind of question because it is considered to be forbidden under the Constitution? Equally, in relation to our marriage laws, there is the question of the rights of the majority religion in mixed marriages. Can these things be dealt with by the commission? Can they examine our marriage laws and can they establish the civil right in relation to all these questions —homosexuality, therapeutic legal abortion, contraception, divorce?
One of the greatest impediments against the unity of our people is the idea that the civil law is the moral law. We must decide as parliamentarians what we consider to be desirable civil laws for the ordering of our society. The attitudes of the majority religions must be considered in assessing the desirability of introducing any new measure to amend the law. In the final analysis, we must do what we believe to be correct in the interests of all our people.
I should like the new Law Reform Commission to try to understand more the motivation in the whole question of criminality. Certainly, people who are seriously disturbed must be isolated from society. Those who do terrible things such as trying to kill or maim people or indulge in other anti-social acts must be dealt with and, in some cases, isolated from society, but they must be dealt with in a compassionate, understanding way, not in a punitive way. At present our whole approach to the prison service is exorcising our own guilt feelings because all those who go to jail, whom we call criminals, are the products of our society. They are products of our families and homes; they are products of our schools and colleges; they are products of our culture.
It is remarkable how proud we can be of the achievements of many of our people in the professions or in trades or crafts or sports and so on but we get so angry with the non-conformists, those who let us down. Remember they are still products of our society. We like to boast of what a wonderful thing Irish family life is, what a wonderful thing our Constitution is, what our State laws are. We become quite euphoric about our virtues and advantages but we should not at the same time, forget those whom we have failed. We may have given them a bad start in life whether in education, in the family and in the home or in some other way. They simply react by getting extremely angry with our society and protest in the only way they can, by refusing to conform. We should examine ourselves and ask what did we do wrong which affected these people in this way, rather than punishing them. The blame lies with us.
Young people who may be involved under the Criminal Law (Jurisdiction) Bill, 1975, which we discussed this morning, are the products of our culture and of our society. Yet, instead of understanding that all we do is to repress and to suppress. As far as I know this is true of all our criminal law.
Reform is long overdue and I welcome the decision of the Attorney General to introduce this measure. I wish him well in his efforts. In the Library of Leinster House there is a beautiful bookcase full of commission reports about which very little has been done, so he must forgive us our scepticism on this occasion. But, at the same time, we wish him well.
I thank Senators for the welcome they have given this legislation. There is considerable agreement in the House as to its desirability and there is also a considerable area of agreement as to how the commission will operate. Therefore, in replying to the debate, I shall pick up points which have been made and comment briefly on them. The general principles were widely accepted and it is on matters of detail that the debate has generally turned.
I agree with the views expressed by Senator E. Ryan as to the desirability of consultation. The point which he made is a valid one. It is important that consultation takes place with practising lawyers as well as academic lawyers. Both Senator Ryan and myself come from the practising side of the law and it is often said that a division of thought may exist between the practising and the academic lawyers. It would be a mistake to overestimate this. Both sides of the profession have considerable expertise and knowledge from their own particular disciplines to give to the work that is to be undertaken by the commission. But I should like to stress— and it is something I may refer to in a moment when I have referred to what Senator Browne has said—I hope that consultation will take place not merely with lawyers, and that this is not a Bill which will involve the expertise merely of lawyers. For example, in the case of the criminal code the views of psychiatrists and psychologists will be obtained and in the social field we will need the views of experts other than lawyers.
With regard to the criminal law the views of psychologists and psychiatrists would be obtained and in the social field that the views of experts, other than lawyers—for example, social scientists and social workers—would also be obtained.
The question of consolidation of statutes is an important aspect of the work which I hope the Commission will undertake and give advice on. As I indicated at the outset in my remarks on moving the Second Reading of this legislation, it is not a question of assisting lawyers and easing their burdens. It is a question of making the law more easily accessible to the concerned and interested lay person. I would hope that the Commission would indicate the areas of law in which consolidation could take place. The points raised by Senator Ryan are interesting ones in relation to the procedures that have been adopted in Germany. We have a great deal to learn from other jurisdictions, not merely our neighbouring jurisdiction. I would hope that the work of research and consultation that will go on will include research into such concepts as he has raised.
There is one point in Senator Ryan's speech which I wish to clarify. He referred to the delays which have occurred in the past in relation to this area and to the fact that the Attorney General has had many responsibilities in the past and his staff have been taken up with them. I would like to make the point clear that the Attorney General's role in law reform has been negligible. The Attorney Generals in the past have had no role to play in determining what laws are to be reformed. The role of the Attorney General's Office in the past has been merely in respect of legal advice on any matter that may arise in relation to any proposed legislation, and of course, also on the drafting side in relation to the Parliamentary Draftsman's Office. The Attorney General's Office in the past has not had any responsibility in the area of law reform other than the technical ones to which I have referred.
I feel sure the commission will share Senator Ryan's view that it would be very inappropriate if they started off their work by getting bogged down in details as to what work they were to undertake. Experience elsewhere would indicate that this need not happen. We are all agreed that the work the commission have to undertake is of immense dimensions and it will be a daunting task to decide priorities, but I would anticipate that the commission would undertake this task immediately and adopt a programme within a very short space of time, bearing in mind that they could start work immediately and then bring in subsequent programmes in the light of the experience they have gained.
The delays which have occurred in the implementation of reports of past commissions have been referred to by Senator FitzGerald. He drew attention to the fact that the excellent committee which have been sitting for a number of years have drawn up reports which have not been implemented. I think his analysis of the reason for the delays is an accurate one. I would add a further reason for the delays and that is the lack of legal expertise available in the Department of Justice particularly and in other Departments and also in the Attorney General's Office. In fact the public service has been understaffed in legal expertise and the result has been that the proposals which are made by commissions and which are then sent to the Government, or to Government Ministers in the first instance, do not have the expert advice available in Government Departments for their speedy consideration and subsequent implementation.
The legal profession must carry a share of responsibility, as Senator FitzGerald has said. However, while saying that and while saying that lawyers can be complacent in admitting this fact, lawyers can also be very frustrated from the undoubted injustices which they see and in respect of which they can do nothing. It is true that submissions have been made from time to time by members of the legal profession for changes in the law and little has been done about them.
Senator FitzGerald drew up a very short list of obvious areas in which reforms are urgently needed. I think anybody in this House or on the street could do the same. The task this commission will have is to try and see where to begin, the very onerous job of deciding where first to tackle the injustices in our laws and where first to give priorities, bearing in mind the limitations of personnel which, unfortunately, will exist. He also drew attention—correctly, I believe—to the cross-fertilisation that can occur when people from different disciplines meet. It is a valid criticism that in the past in relation to law reform there have not been enough experts from outside involved, but it is equally true to say that experts from other disciplines can benefit from the assistance, experience and knowledge which lawyers have gained particularly in the field of social sciences.
For the reason which I outlined in my opening remarks the procedures adopted in the past have not, I believe, worked, and the new procedures will produce speedier results. The role of the Attorney General in relation to this matter is one of consultation with the Law Reform Commission. I know Senators will understand that the Attorney General will be in a position to assess from his knowledge of Government Departments what their needs are and pass on the benefit of his knowledge to the Law Reform Commission who will themselves be undertaking an examination of the areas requiring reform. This will be a new procedure. Instead of setting up ad hoc bodies from time to time whose reports, as Senators FitzGerald and Browne have said and as every Senator here knows, are in the Library downstairs gathering dust and are not being implemented, it is hoped that a standing committee with a professional research team available to it and with the collaboration of outside experts will be able to draw up reports more speedily with Bills annexed to them. It will then be a matter for decision by the Government of the day to decide as a matter of policy whether the matters are to be introduced or not. The experience in England has been that this procedure results in much speedier effect being given to the Law Reform Commission's reports than our experience here has been with regard to ad hoc commissions.
The point made by Senator Lenihan in relation to the delays was that an administrative blockage had occurred between the Attorney General's Office and the Department of Justice. I should like to clarify the position as far as I have been able to find out, because there has not been any blockage between the Attorney General's Office and the Department of Justice in matters of law reform. Policy decisions have to be taken on, for example, the report of the Walsh Committee. The reports are there. It is a question of taking a policy decision whether they should be implemented or not. That having been done, it is a question of going to the Government with the policy decision and when the policy decision is taken by the Government then the question is sent to the Parliamentary Draftsman's office. The Attorney General is consulted on any legal problem that may arise. It should be clarified that the role of the Attorney General in the past has not been one of any significance in the law reform processes. It is proposed that it will be different in the future.
I agree with what Senator Lenihan and Senator Robinson said that where the homework was already done the matters should be implemented. The problem has been in the past that it is not a question merely of doing the homework, it is a question of getting decisions after the homework has been done. These reports to which reference has been made are there, the homework has been done, and it is a question of having the staff and the resources for the Minister to arrive at a decision whether the recommendations should be implemented and then for the Government to approve or otherwise the advice given in relation to them. It is true that the procedures in the past have not been conducive to speeding up the proceeds of law reform.
I should like to have taken up more of the time of the Seanad on the point which I touched on briefly, and to which Senator Robinson made reference, namely, the social aspect of law reform. I did not do so because I did not wish to delay the Seanad at any great lengths and I felt it was a point that would be readily understood. This is one of the reasons I would so strongly urge the implementation of this piece of legislation. Law reform is not merely concerned with lawyers' law. Law reform is not a matter of concern to a small clitest group of professional people or of concern to a small group in society. We are not talking about amendments of the law, for example, for increasing old age pensions or for improving grants under the Housing Acts. These are areas in which the law can be reformed. Law reform is a different concept. It is a concept which is concerned with areas of the law which requires legal expertise to effect. The point that is not sufficiently understood—it is understood here but not outside—is that this concept of law reform is one which concerns social reform.
As Senator Robinson has said, such things as family law, such very important human relationships as the relationship between husband and wife, the relationship of children to their parents, such very important social and economic relationships as the employeremployee relationship, because of the complexities of the laws all these require legal expertise for their improvement and amendment. It is because this Law Reform Commission will be involved in areas like this that I am especially interested in seeing its early establishment.
Senator Robinson asked whether the Law Reform Commission would have jurisdiction in constitutional law matters. Clearly they will have such jurisdiction. The definition of reform and law in section 1 is wide enough to cover these matters. The Government's responsibility in this area is the final one. Whether or not the Constitution is amended is a matter first of all for Government decision and, secondly, for the Oireachtas to decide. The Government cannot abdicate their responsibility.
If the Government of the day were to decide that the Constitution should be amended as a matter of policy, I could see the Law Reform Commission playing an important role in certain instances in advising how best this could be undertaken. The point raised by Senator Robinson is, of course, an important one, namely, the relationship between the law reform programme that will be undertaken by the Commission and Government policy. Ultimately, responsibility for introducing legislation and passing it in the Houses of the Oireachtas rests on the Government of the day and the Deputies and Senators who support the Government. Finally, whether or not the law is to be amended will be matters of policy for the Government.
Be that as it may, there are still undoubtedly many areas in which the policy content may be high but where, nonetheless, a report from the Law Commission would be of assistance. I can give in this connection an example of what happened in one particular area of the law of torts in England where there was a suggestion that the Law Reform Commission should consider it. The Government of the day decided that it was a matter of policy and they set up a special committee and did not use the Law Reform Commission for this purpose. In another area, in an area of divorce procedure, the Law Reform Commission were given responsibility for it, and in fact produced two separate proposals as to how the law could be amended depending on a policy decision. Our approach to this must be a flexible one, but I would hope to see the Law Reform Commission involved in the social area to a considerable extent.
I do not think we need two Law Reform Commissions and I do not think Senator Robinson was literally suggesting that. Senator Robinson's point is a valid one, that the work to be undertaken is very considerable and it can be undertaken on different levels—one level where it can be done quickly and the other level where more time is necessary. In this connection I am sure the commission will draw on the experience in England where the English Law Commission set out to codify a branch of the law and after some years found that it was physically impossible to do so.
If the English Law Reform Commission with all their very great resources could not do it, our Law Reform Commission, which will obviously have less resources, will be alive to this. They will, I am sure, try to strike a balance between what can be done speedily and what will require fairly lengthy research and make sure that their resources will not be taken up in an unbalanced way with research that is going to take a very considerable length of time.
In relation to the specific point that Senator Robinson raised in relation to the present work of the Walsh Committee, this is going to be a matter for the Law Reform Commission in the first instance. The Law Reform Commission will be able to examine the areas of law which are at present being studied. Senators know that the Conroy Commission exists in relation to landlord and tenant matters. It may well be that the Law Reform Commission would indicate that the Conroy Commission should consider an aspect of landlord and tenant law rather than the Law Reform Commission. Similarly, the Law Reform Commission might well decide that their resources would be better employed in family law matters and might recommend that they rather than the Walsh Commission would undertake a particular aspect of that branch of the law. In this connection I should say that there is a Statute Law Revision and Consolidation Office attached to the Attorney General's Office and the Law Reform Commission may well say that that office should undertake a particular aspect of consolidation rather than undertake it themselves. This is as I would hope it would work.
I do not think I would describe the relationship between the Attorney General's Office, the Department of Justice and the Commission as a nettle to be grasped. I hope that common sense will prevail and that good relations will exist. It will be a statutory duty on the Law Reform Commission to review the law. There will be a statutory duty on them to consult with the Attorney General. The Department of Justice obviously will be concerned and will have views on areas of law with which they are primarily concerned to administer and so their views will be conveyed to the Law Reform Commission. No doubt their views will be considered by the Government when the programme of the Law Reform Commission comes before the Government.
I fully share the view that this process should not take a long time. I am hopeful it will not and that the Law Reform Commission will be able to set out their priorities fairly quickly, the views of Government Departments obtained on them and the Government decision taken quickly.
Senator Browne is perfectly correct when he urges the necessity for the greater understanding that modern psychiatry and psychology can give to persons who are called criminals in our society. I sincerely hope that in improving the criminal code the Law Reform Commission will obtain the benefit of the advice of psychologists and psychiatrists in this connection. The limitations in this legislation we are considering must be understood, because of course the whole area of penology and the whole area of the treatment of offenders is a vast one. I certainly hope that the emphasis on rehabilitation will be maintained all the time. It must also be recognised that the law can play an important part in having a compassionate and, at the same time, a just approach to the law-breaker and in particular the question of the review of the McNaughton Rules is one which obviously is of very great importance. There is at the moment a committee sitting under the chairmanship of Judge Henchy who are reviewing the technical problem of the unfitness to plead rule, the guilty but insane concept and also the concept of reduced criminal responsibility. It would be a matter for discussion, depending on how far Judge Henchy's Committee have considered the matter, whether the Law Reform Commission would be seized of such matters. I understand, however, that Judge Henchy's Committee have practically completed their work and their proposals would obviously be of very considerable interest to Senators as well as to the proposed Law Reform Commission.
I know that Senators have ideas of priorities. Some of them have been given today by Senator FitzGerald, Senator Robinson, Senator Browne and other Senators. I am afraid I cannot accept the invitation to express my own views for the reason that I will have a statutory function to perform in this area and I will have to give advice both to the commission and the Government. Therefore I do not think I can make known in advance what my views are in this field. Bearing in mind that limitation, I think I can express with propriety the view that I hope the commission will not be concerned merely with the minutiae of the law or with technical aspects of law but that they will be concerned with much wider issues and will work with the expedition for which we all wish.
May I thank the Seanad for the welcome they have given to this piece of legislation. It would be wrong for us to have too much faith that our society is going to be changed dramatically by this legislation overnight. It is not merely a question of greater redistribution of wealth by means of the tax code. It is not a question merely of increasing the social content of the capital budget. It is not a question of allocating resources in some way or of economic planning. All these things are involved in reforming Irish society, but also involved in it is the prospect and concept of law reform, and for this reason this could be an important piece of legislation on our Statute Book.
Question put and agreed to.
Agreed to take remaining Stages today.