I am aware that when the Law Commission Bill in England in 1955 was being debated that there was an enormous fracas because somebody had leaked the names of the commissioners before the Bill was through the Houses. I am not asking the Attorney General to leak any names, but I wonder whether he might be in a position to indicate to the House when the establishment day might be; for example, is it a matter of weeks or will there be much delay? It might be important if the Law Reform Commission were well established before the summer.
Law Reform Commission Bill, 1975: Committee and Report Stages.
Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
That would be my hope, too.
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Very briefly on section 3, which deals with the establishment of the Law Reform Commission, I return to what I said earlier in relation to the practicalities of this issue. In my view the commission should be equipped with the proper secretariat and given a clear mandate. There are already so many reports to hand over the whole range of civil and criminal law that I would ask the Attorney General to ask the commission as an immediate task to consider them. The Attorney General has referred to the immense dimensions of the job on hand, the very wide complications and the various social implications that are involved. We are all aware of this and I share the views of Senators Browne and Robinson in this area but there are very practical remedial measures that are there on the table for practical recommendation. All that has to be done is to get this commission going, get the secretariat established and in particular use the powers in section 4.
I would again make the point in regard to the commission that it be not just another commission as such, that it be a working body with priorities that are already there in the form of practical recommendations. The commission should be got under way, as Senator Robinson suggested, within a matter of months and the Attorney General has agreed. The Commission have enough on their plate already to produce sufficient legislation by way of practical improvements in civil and criminal law for the Attorney General to introduce in this House over the next 12 months. We would welcome the introduction of such legislation in the Seanad. These measures will be introduced here in the Seanad, where, I can assure the Attorney General as far as this side of the House is concerned, they will get total, sensible and rational consideration on their merits. The reports and recommendations are there and the commission can get on with them straight away.
On that point I share the Senator's view that this commission will have to be a working commission. I am sure they will be and that they will produce results. I think that I should clarify what the position is in relation to reports that exist at present. There is the Bankruptcy Report which Senator FitzGerald referred to and that has legislation annexed to it. It took ten years to produce. It reported in 1972. What is the delay about that? This cannot be sent to the Law Reform Commission. It is purely a question of a policy decision to be taken whether this is good legislation or not. One could multiply the delays if the Bankruptcy Report had to be sent to the Law Reform Commission. It is a question of a decision to be taken on whether or not proposals which have already been made are desirable or not.
In relation to the Walsh Committee Report, what is important to note and for Senators to understand, is that these reports are in very minute areas of the law. These are important reports and, as Senator FitzGerald pointed out, some of them involve the identification of considerable injustices and methods for remedying them. It seems that delays here are not delays due to drafting but delays in taking decisions on the recommendations. While I am sure the commission will consider any of these matters it could usefully be seized of it would be wrong to think that by setting up the commission we would get all the Walsh Committees reports to it and then we would have legislation. Decisions will have to be taken on principle in these matters. I would anticipate that one of the results of setting up the commission might be to have decisions on these matters taken because it will mean that officials who have been working on other matters will be freed and will be able to give attention to these.
Before referring to the specific queries that I have on this section I would like to say that it is very pleasant to hear a sharp analysis and criticism of lack of Government decision-making coming from the person in that chair during this debate. I do not want to be misunderstood but it appears that decision-making in this instance must be undertaken by the Government and is their responsibility. On section 3, I have a number of specific queries. On subsection (4) it is provided that where a vacancy occurs among the members of the commission, the Government shall appoint a person to fill the vacancy as soon as may be after they are informed by the Attorney General that the vacancy exists. Presumably the persons who are appointed would be a Law Reform Commission for the duration of the term.
I do not think that would necessarily follow under this section. As soon as a vacancy occurs it would be a question of the other part of the Bill applying and the terms and conditions of appointment would be decided by the Government.
Thank you for that clarification and it brings me on to the next query which relates to the terms and conditions under subsection (8). In the speech of the Attorney General introducing this Bill there was, I think, a desire to remain very flexible on this point and not to be too specific. At the same time it is important that we emphasise in the House that the work of the Law Reform Commission is going to be of very considerable importance and complexity and that the commissioners therefore must be drawn from very senior members either of the legal profession or the legal-academic sphere or other outside specialist interests. I would presume that the terms and conditions would reflect this importance and I would welcome some clarification as to whether it is anticipated that either all initially, or at least the majority of the five, will be appointed for the full period of five years.
I am afraid I cannot answer Senator Robinson on that because it all depends on the availability of the persons and, obviously, I am not in a position to inform the Senator who will be appointed as commissioners. The length of time which a person serves will depend on a great many matters. A person may be at retiring age; he may be available for five years. A person may be in a university and may not be free to serve for five years. A person may be of junior rank in a profession and may not wish to commit himself for the full length of time. So the position is a flexible one and I would agree with what I understand is the general view of Senator Robinson, that continuity will be of some importance. That will, obviously, be borne in mind. The idea of limiting the term to five years was to make it clear that we did not want life-time appointments. This has been learned from experience elsewhere. There is this flexibility but continuity will be important, certainly at the beginning.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
I should like the Attorney General's view on subsection (3) (c) in regard to the functions of the commission which it is envisaged under that subsection are to prepare, or cause to be prepared, and include in their proposals for law reform, draft Bills. I would regard this as very important in regard to expedition of the work that is envisaged by this Bill. Traditionally, not alone here but in Britain and throughout the world, one has commissions of different kinds established, reports drawn up and memoranda submitted, but nothing done. The administration of the draftsmen's office should be linked in with this work so that along with the actual memorandum or proposal the commission or the Attorney General may recommend a specific drafting proposal in the form of legislation. From the administrative point of view this would break an administrative bottleneck to a tremendous degree and would be a great help. Would the Attorney General like to elaborate on that?
I agree very much with Senator Lenihan. Senators who have looked at the reports of the Law Reform Commission in England and the Scottish Law Reform Commission will see that invariably they have appended a draft Bill. Work which Senator Robinson referred to and other reports on the work of the Law Reform Commission and, indeed, personal information given to me by the Law Commission would indicate that one of the secrets of the success of the English Law Reform Commission have been the fact that a Bill has been annexed to its report. Parliamentary draftsmen are scarce and this is a field which requires considerable expertise. I would hope that the expert assistance in the Parliamentary Draftsman's Office attached to the Attorney General's Office and in the Office of Statute Law Reform and Consolidation will be available to the Law Reform Commission.
May I just ask a question on this section? Is the Attorney General satisfied, having regard to the definition in subsection (2) which is subject to the generality of subsection (1) setting out the functions of the commission, and, again having regard to the provision in subsection (3) that the Government will be free to appoint people with qualifications other than that in law? It would seem from subsection (7) of the section which has just been passed that the ability to appoint people other than barristers, solicitors or teachers of law is limited to the ability of the Government to form an opinion that the person to be appointed is appropriate from the experience, qualification and training he has for appointment to a commission having the functions set forth in section 4.
If we look at subsection (3) of section 4 we see that it is possible to consult persons qualified to give opinions on different matters. Whether that kind of provision and the establishment of working parties for advisory committees could be held to indicate that it is only in that way people not qualified in law could be listened to in this matter, I do not know. If one looks at the actual special declaration of the functions in subsection (2) these seem to me, reading them at (a), (b) and (c), to be all matters which could be performed by lawyers only.
I see the point that Senator FitzGerald is making. However, I would be of the view that subsection (7) of section 3 is wide enough to permit the appointment of a non-lawyer, notwithstanding the wording of section 4. It is true that the functions of the commission are functions in relation to examination of the law and research into the law. But I think subsection (7) of section 3 will permit the Government to examine the qualifications of a non-lawyer and quite properly come to the conclusion that this particular non-lawyer has sufficient qualification to undertake research into some aspect of the law and make recommendations and formulate proposals upon it. For example, in the field of family law it seems to me that a social scientist would be very well qualified indeed to examine the law and make recommendations concerning it. I would think, therefore, that subsection (7) of section 3 is wide enough to permit what we all want to do being done.
May I comment on the point raised by Senator FitzGerald before raising a specific query on the section myself? I would agree with the Attorney General that the wording of section 7 appears to be broad enough to allow a non-lawyer to be a member of the Law Reform Commission and still carry out functions under section 4. There are different arguments that one could put forward in support of having one non-lawyer—I think it would be sufficient to have one non-lawyer, taking into account that the functions of the Law Reform Commission do require legal expertise—and one is that, although the Law Reform Commission can of course consult experts or set up expert working parties which can have experts from particular disciplines or with practical experience of them, it is the impact on the Law Reform Commission itself which one would be considering in deciding its composition. I would certainly think that it would be an important richness within the Law Reform Commission that it was not just five lawyers, whether some of them were practising or members of the Judiciary or academic lawyers.
I think that this is particularly necessary because of the very narrow approach to legal education which would have formed the background to these lawyers. In the last couple of years the approach to legal education has broadened. We now have family law on the courses. But this was not so in the past and if one is thinking of fairly senior members of the profession, of the Judiciary, their background is narrow. Their experience is an expert experience from a legal aspect, but they would benefit, I think, from a colleague and the continuity of the observations of a colleague, somebody who in the estimation of the Attorney General and the Government would be able to fulfil the functions as set out in the section. I, certainly, would express a very strong view in favour of having a non-lawyer on the Law Reform Commission. If the commission are to have a serious impact and a proper perspective on family law reform, this proposal commends itself very strongly.
I should like to refer to subparagraph (f) of subsection (3), which gives the Law Reform Commission power to publish preliminary working papers prior to formulating any proposals for law reform, and to welcome this provision very much. If I understand it correctly, this gives the Law Reform Commission power to publish, and presumably therefore it will have the resources to do this. This is very important. I think one of the reasons the Committee on Court Practices and Procedure has been so handicapped was that it could not get many of its reports published. It may be one of the very constructive tools in the hands of the Law Reform Commission if it can publish position papers, preliminary reports on particular subcategories of the area it is studying in depth in order to get a feedback, in order to get a response. Therefore, I think that this section has given the Law Reform Commission the necessary powers to execute the functions of the section. I welcome this power to publish the preliminary working papers prior to formulating any proposal for law reform.
I know Senators will appreciate that I cannot express an opinion in relation to the personnel of the Law Reform Commission but the point that Senator Robinson has made—and I know that it has been very very carefully considered by the Government—seems valid. In relation to the second point made by Senator Robinson, the experience in England and Scotland has been that the preparation of preliminary working papers is a very important part of the whole process in the preparation of these proposals. This does give power to publish, and it is an important power. If one reads the reports of the Law Reform Commission in England one will see that they had arrived at a preliminary view, they published it in their working paper and then having got further views they changed their view. This is a desirable approach to the whole problem of law reform and I would hope that it is a power that will be utilised by the commission.
Question put and agreed to.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."
This is relevant also to what we have been discussing in regard to section 4. Under subsection (1) every programme prepared by the commission will be submitted by the Taoiseach to the Government, which can approve, modify or reject the programme. I strongly approve of that. Subsection (2) says that where a programme submitted pursuant to the section is approved by the Government a copy of the programme so approved shall be laid before the Houses of the Oireachtas. What about the programme that is not approved? Does this come in under what we have been previously talking about on section 4? Senator Robinson suggested that there is the power under subparagraph (f) of subsection (3) of section 4 to publish preliminary working papers prior to formulating any proposals for law reform. If there is a specific law reform proposal prepared by the commission, submitted to the Government and rejected by the Government or modified, what is the situation under section 5 or section 4—which we have been just discussing—in regard to the publication of such original proposals by the commission?
If my recollection is correct, in England the Law Reform Commission has proposed that it should examine a particular area and the Lord Chancellor has said "No." We have no Lord Chancellor and it is not the Attorney General but the Government who will say "No" if they do say "No." If this is something that is not hidden in the files of Government Departments or the Law Reform Commission this comes out in annual report, and the Government will have to give their reasons for saying no. If the annual report of the Law Reform Commission says: "We proposed such-an-such a programme and when the programme was published the Government did not include it," this matter will be subject to questions in both Houses as to what happened and if the Government decide not to include it, they will have to give reasons.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Very briefly, on section 6, I welcome the way in which it is set out because it appears to place a statutory duty on the Law Reform Commission to bring in a substantial report. As somebody who has tabled endless motions in this House to consider various reports—which have not always been debated—it is frustrating to see how reports can be reduced to such a minimum that they do not convey any real sense of the activity of the particular body. I think the wording of section 6 will necessitate that the Law Reform Commission give a full and clear account of what has happened. I agree with the Attorney General that this would obviously have to include a programme for law reform which was not acceptable to the Government and of which the Government did not approve. This, in itself is a very important aspect of the work of the Law Reform Commission and over a period of years should allow the building up of a certain expertise and continuity in the sense of being a monitoring of the law through the annual reports of the Law Reform Commission which will be very helpful.
I would just like to say that it is because of the existence of this section and the preceding section that I welcomed this Bill as creating a structure which should ensure that we will get law reform and that it is meaningful. It is very important that the provisions of this section seem to me to go very far and they will have to give a full account of themselves.
Question put and agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
I make this point subject to it being possible for us, collectively, in this House to convey to the Minister for Finance the importance we place on the commission and on the fact that the order of moneys that should be available to enable them to carry out their work should be such as will allow them to perform their functions fully. I emphasise this as someone who feels, as other Senators here present who were also appointed to the Joint Committee of the Oireachtas on European Community Secondary Legislation may also feel, that this committee did not get into full operation because of a certain reluctance at the beginning to give them the resources that were needed. I hope the same mistake will not be made in relation to the Law Reform Commission.
With a full heart and with deep conviction I will pass on the Senator's views.
Question put and agreed to.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
I am not suggesting there is any other way this could be put but I do not like the look of subsection (1) of this section. Inevitably one sees this kind of thing:
The Commission shall, in consultation with the Attorney General——
I am not worried in the least about that end of it.
——appoint such and so many persons to be officers and servants of the Commission as the Commission, subject to the approval of the Minister for the Public Service as to the number, from time to time thinks proper.
In other words, we are back to the good old days, and it is I admit, inevitable, that the amount of staff that this body will be allowed to have will be dependent on the Minister for Public Service who, of course, for practical purposes is the Minister for Finance. It is very important that the staff of the commission should not be too small. I do not know how to secure it but one hopes that the Department of Finance or of the Public Service do not adopt the sort of penny-scraping process that they do so often in relation, for example, to this House. I would like to think the staff would be adequate but I am by no means confident.
I think it is obvious to Senators that there must be some control; there is no way to avoid that. Allocation of resources is I suppose a constant problem for the Government and again they must try to find out what resources can be allocated here.
I hope the Government, and particularly the Minister concerned, are aware that they are wasting their time in having a body of this kind unless there is a pretty adequate staff. Really, three or four men and a dog will be able to do nothing.
That is very true.
On a point which may have been clarified and I may not have taken the point—what precisely is meant under subsection (4) about the designation of offices? What type of offices are envisaged here and what is the power the Attorney General has arrogated to himself for cancelling the designation of an office if necessary?
I did make it clear that one of the principal concepts behind this subsection was to protect the commission from criticism that they are not carrying out their appointment procedures fairly. The commission can appoint their own staff. They can appoint anyone they want subject, of course, to getting permission from the Minister of the Public Service as to their number. If the commission went ahead and appointed people who were say, from one academic institution rather than from another, this could mean they would be subject to criticism. The idea of this subsection, taken in connection with subsection (5), is that the Attorney General of the day may say to the commission: "Before you fill these posts of research officers, it is desirable that you should advertise these posts. You, of course, will decide who is to get them." Or he might well say: "You should set up an outside commission to decide who the appropriate people are." It is really to protect the commissioners that this has been provided.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
I want to make the point that there is a reference to the president. What function has the president as such? Is he simply called the president of the commission? I am sure it is appropriate that if we were discussing his superannuation we should ask what his duties should be. Also, do they come in early on Monday morning and work until late on Sunday night? Do they decide all these matters themselves? Is there necessity for any power to be given to them to regulate their own procedures? If their superannuation was imperilled, through it being found that they had not the power to do any of these things, how would they stand?
I suppose it is a question of preference. In section 3 (1) it is provided that there is to be a commission consisting of a president and four other members appointed by the commission. We could have put chairman instead of president but it was considered that the title should be "president" rather than "chairman". Subsection (11) gives power to allow for the superannuation of the president and members of the commission. Whether they clock in at nine or ten and leave at five or 5.30 will be a matter for them to determine themselves. The Government will determine the terms and conditions under which they are appointed but if a person is appointed full-time I imagine it would be a matter for him to realise that he must fulfil those statutory obligations.
"President" is an "in" word.
What happens if, when the five meet together, they elect somebody else as chairman?
I have been wondering about this because it is not clear from the Bill. Is it the intention that all these people be full-time or that some will be full-time and some part-time?
The Bill is flexible. It will depend entirely on the availability of certain people and of financial resources. Obviously if they can all be full-time people this would be best. In Scotland they started off without full-time members. Later they had one full-time, then two full-time Commisioners and have only recently had five full-time members. I do not think we can say in advance what it will be. It would be desirable if they could all be full-time but this may not be possible.
Question put and agreed to.
Sections 12 and 13 agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
Again, I am rising without perhaps having read the section carefully enough. Am I correct in understanding that if a person who at present holds a position as a High Court or Supreme Court judge is appointed to the Law Reform Commission that another judicial appointment will be made to bring the number——
Can be made.
This was my query. Is there the problem of the appointment being made for a term of years? What happens when the Law Reform Commission judicial appointee comes out of the Law Reform Commission after five years?
We will have an extra judge, if in fact we have appointed another judge to take his place.
He will be appointed?
That is what I anticipate. If a judge of the High Court or Supreme Court is appointed say, for five years and then goes back, in the meantime I would imagine it would be necessary to have another judge there. At the end of the five years, if the judge of the High Court or Supreme Court decides not to continue but to return to his judicial functions, it would be anticipated that another judge would be appointed to the Law Reform Commission. If he was not, we would have an extra judge. There would be few that would object to that.
Question put and agreed to.
Section 15 agreed.
Title agreed to.
Bill reported without amendment and received for final consideration.