In my view amendments Nos. 4 and 6 are directly related and I rule they can be taken together. The amendments are in the names of Deputies O'Malley and G. Collins.
SECTION 4
I move amendment No. 4:
In page 4, after line 31, to insert:—
" (4) The Commission shall from time to time prepare for submission by the Taoiseach to the Government proposals for law reform, and shall indicate the priority in which the Commission places the necessity for such law reform, and shall indicate the manner in which the Commission recommends that such law reform be initiated, and the scope and extent of such law reform ".
One of the difficulties of all commissions is that of resolving specific problems and that, coupled with a natural temptation to perfection, can bring about great delays. There should be some provision to ensure that activity is reported. On the amendment to section 4 the fundamental case to be made is that the commission could be delayed unduly and for this reason something on the lines of the amendment should be incorporated. In subsection (3) of this section the word " may " occurs and, without going into the question of the meaning of that word since the amendment is mandatory, it might be desirable that we incorporate a separate subsection. In my view there is a good case for inserting the amendment as a separate subsection.
One of the things we wanted to achieve by this amendment was that an order of priority be set out in the proposals of the commission because there will be no shortage of topics the commission may devote itself to. We would want to ensure that the commission would not confine itself to seeking out topics which were worthy of consideration but would assess the priority in which they should be taken. There are a number of topics which may be very long winded and detailed and if the commission devoted itself to trying to solve them it could spend the first few years not appearing to achieve very much.
I have in mind, particularly from my own experience, the consolidation of landlord and tenant law which I, hopefully, undertook at one stage and had to abandon for good reason. That was only an effort to consolidate the law from 1931 onwards, to codify the repeal of the 1931 and all subsequent Acts and re-enact them, hopefully, in one more simplified Bill. That proved a major undertaking and the Bill eventually produced came to 150 sections. I have vivid memories of one section being three pages and one sentence being 50 lines long.
I decided that this was not going to simplify the law and I had to send it back. I hasten to add that this was from the 1931 Act onwards, but it is necessary to consolidate the landlord and tenant law beginning with the Decies Act in 1860. That is again a major undertaking and that would have to be done on top of the 1931 Act. The reason I mentioned that is that if the landlord and tenant law was to be picked first by the commission it could spend a year or two on that. A matter like that should not get priority even though it is very important.
There are more urgent things to be reviewed. If a major review of the rent Acts was to be carried out by the commission it would bog the commission down. Undoubtedly, this will have to be done but we should know the order in which things are to be tackled by the commission. If the order of priority is wrong and some of the most complicated things are taken first, the commission will appear to be less useful than they might otherwise be.
One of the major problems in relation to this commission, and law reform generally, will be fixing priorities. It seems to me that the task of the commission will be to prepare a programme and, in doing so, it will take into account what its resources are and what resources elsewhere may be. It will also take into account what areas of law are most in need of reform. One of the problems will probably be that most people will have concepts of what is most urgently needed to be done and what the commission's task will be in reviewing the law in that area bearing in mind (a) the resources and (b) the urgency it places on the different aspects of the law. So that, in effect, when making its proposals and its draft programme it will be stating its priorities. If you look at the programmes that have been prepared by law reform commissions elsewhere you see that they set out a series of areas of law in which it is suggested examination should be undertaken.
In effect, what the commission will be doing when preparing a programme will be stating its priorities. What has happened elsewhere, and what I imagine will happen here, is that included in the programme will be certain proposals which may take considerable time; for example, codification, as mentioned by Deputy O'Malley, of landlord and tenant law, might be something that the commission would suggest should be undertaken. If it did so, it would only do so on the basis of resources being available for such codification.
It might also in its programme indicate other areas where immediate reform could be undertaken without very much research. The whole programme would be a balanced programme of law reform, some of it requiring considerable research and some of it being capable of speedy implementation. This is what happened in England. In England and in Scotland they proposed in their programme certain matters that should be taken; in fact, some matters took so long they had to give up—for example, codification of the law of contract.
I would envisage in the programme itself, the commission, having decided in what areas it will operate, in fact having decided its priorities, adopting a programme. I would prefer therefore not to tie the commission down, saying : " You will have to suggest to the Government that Nos. 1 and 2 are the most desirable ". Once they include them all, they will indicate their priorities.
The second matter raised in the amendment is to the effect that the commission would indicate the manner in which it recommends that such law reforms be initiated. I think that is covered already by the earlier subsection 2 (a) of section 4, which provides that a programme may recommend the agency, including the Commission or another body by which the examination is to be made. What is envisaged here and what I think is meant by the amendment is that in its programme the commission would say : " This is an area in which the commission itself will undertake, " or " This is an area in which a special committee should be established to investigate." Or the commission might say : " This is a matter which should be investigated by an existing committee," for example, the Walsh Committee on Practice and Procedure, or the Conroy Committee on landlord and tenant legislation. What is sought in the amendment is, I think, contained in subsection 2 (a).
The final point suggested is that the commission should indicate the scope and extent of such law reform. That, in fact, is what it will do in its programme when it sets out in a paragraph or two the area of law reform to be examined and in respect of which proposals are to be made. I would prefer not to specify it as a duty on the commission to state the scope and extent of law reform. It would be preferable if that were not a statutory duty, if it were something that would in practice be done, because if it were a statutory duty you could run into difficulty. There might be an area of law in respect of which in its report it had to give the scope and extent for examination, and as the area of law was being examined it might be found that other matters arose which would call for consideration and the commission might be precluded, on a strict reading of the statute, from going into them.
I suggest to Deputy O'Malley that the problem he has raised is one that the commission will be seized of and I would prefer that the commission would not be required to set out the scope and extent as it will in effect be doing so in any case. The other matters are, I think, covered by the section.
The essential part is in section 4. I hope I am not wrong in interpreting the Attorney General as conceding in principle that there is a desirability of ensuring that the commission reports, but he does not want to tie the hands of the commission.
First, as I said yesterday, there are three parties involved in this. The commission will not be able to do the mechanics and it will come back to the Attorney General, the Department of Justice or some other agency. The Dáil will perfect the operation. The commission is in between to guide and steer but the responsibility will be on the Taoiseach and the Government.
If I may interrupt, it is envisaged that the commission will have its professional staff.
Yes, but they would not have a staff sufficient to deal completely and to the exclusion——
No, but it is envisaged that the professional staff would itself engage in drafting reports.
Yes, but unless there will be colossal duplication and cost, the staff concerned could not possibly take on the necessary mechanical work that must devolve on the Attorney General's department and on other State Departments. That being so, the major task of the commission will be to get a principle, draft reports and do what I might call the spade work to get the thing going and the mechanics will be worked out thereafter, first, in the Department and later in the Dáil.
It is desirable—but whether what is desirable can be achieved is another matter—that the reports of the commission should contain draft Bills. This is happening in England and elsewhere and it is one of the reasons for the success of the Law Commission in England.
From my limited experience on committees which have dealt with Bills such as the Income Tax Bill and the Defence Forces Bill it seems to me that while the initial draft can be produced—and the Attorney General knows better than I do how initial drafts are circulated to Departments before they see the light of day in the Dáil and all the staff work that has to be done—unless there is to be an impossibly large staff and duplication of effort there is a limit to the amount of detailed work this commission can do. Furthermore, in principle it would be absolutely wrong to get the commission bogged down in detail because we would not see the wood for the trees and its value as a guide would be completely lost. It is a cardinal principle of military staff training that the commander of the force must never take executive control of a part of his force. If he does he will surely concentrate on one item of the battle and the rest of it goes hang. This commission is meant to be an overall co-ordinator to bring uniformity and efficiency into our whole legal system. Let it, therefore, get bogged down on one Bill and it is abdicating its whole function. In this Bill there should be a positive safeguard to prevent this happening. The actual working out in detail of any piece of legislation is surely a matter for the existing and efficient State organisations.
I think that is what would happen in practice. When the commission sits and deliberates and considers what its programme should be it will have many people making suggestions, one may be on landlord and tenant law, another on local government law and so on. The commission will have to weigh up the various alternatives and fix priorities. Having done so it will then indicate in its report that local government or landlord and tenant law should be consolidated as part of an overall programme but it may say the commission has not the resources to do this and suggest that the consolidation office, the Attorney General's office, should do it.
I agree with that approach but that approach must be practical and what alarmed me was the Attorney General's statement that they would produce draft Bills. Up to a point that is all right. I do not want to labour that. Let me get back to what I see to be the absolute essential, with that background, having regard to the commission's overall function. We have the Attorney General's office and other Departments as good as we will get and I do not mean that to be a back-handed compliment. They have been extremely efficient in the whole history of the State and extremely good at the production of legislation. It is not the commission's job to take over from them. Having more or less agreed in principle on what the function of the commission is to be, I strongly support this amendment. In order to avoid delays and complaints about delays and to bring a certain urgency into it, which the experience of 50 years shows is necessary with commissions generally, some such provision should be in the Bill. What are the commission's most useful indications? There are four—the priority of legislation, the desirability, the mode of attack and the scope of the legislation. Those are the four guides that are needed for the commission. After that it is a matter for the Government and the executing Departments. The Attorney General seemed to construe the word " indicate " as a mandatory, statutory word, that they would have to say precisely what was undertaken. This word was chosen by the tablers of the amendment deliberately and any reasonable person would take it on its face value as meaning " indicate ". " Specify " would be a different word. " Indicate " is quite wide. I would strongly urge that the Attorney General should accept this word.
In amendment No. 4 if the words : " and shall indicate the priority in which the Commission places the necessity for such law reform " were taken out of that and placed at the end of 4 (2) (a) after " formulated ", I think it would meet the point adequately and the rest of the amendment could be dropped if it is felt that the other points are already covered in different sections. That is at the end of line 2, page 4.
Would the Deputy not consider that " may " would be a better word than " shall "? I would like to give some discretion to the commission and if it is " shall " it is quite clear it has to give this indication.
I agree with that—" and may indicate the priority in which the Commission places the necessity for such law reform " to follow the words " should be formulated ".
Would it not be better to put that in under subsection (3) where we have the general guidelines to the commission? It has various things it may do. We could put in a (g) there : " may indicate the desirability, priority, scope and extent of any law reform proposed ".
We could leave out the word " may " because it is already there and say " indicate the priority ".
In (3) you have a new subparagraph (g) and you add " indicate the desirability, priority, scope and extent of any law reform proposed ".
Even though I am in a minority, I should like to press my point. I accept the position as regards priority and desirability but I feel we should have something inserted to have the commission report to the Government, have it tied to time.
That is covered. Deputy O'Malley's point is different. I should like to point out that the commission must submit an annual report; it must explain how work is progressing.
That is covered in section 6.
I know that but I should like to tie the commission to a time within which to report. I accept the Attorney General's view but consideration should be given, before Report Stage, to the points I raised in this regard and the danger of confusing the duties of the Departments with the duties of the commission.
That is something everybody will be delighted to do.
There is a problem in relation to the sort of legislation I was referring to earlier. It is not just a question of getting the law into a more understandable form, but there is a high degree of social and political policy in Rent Restrictions and Landlord and Tenant Acts. For example, I am sure many Members feel there should be much more severe rent restrictions than at the moment and, equally, some Members feel there should be no restrictions.
In regard to the Landlord and Tenant Act I imagine different groups and different people have varied views as to the renewability of leases and the terms under which they should be renewed. It would be wrong to leave it entirely to the commission such as is proposed. The commission is not responsible, directly or indirectly, to the Dáil in deciding on matters such as this. These are matters of social policy and would have to be decided by the Government of the day in the first instance, and approved by the Dáil.
That is a problem that has been faced by all law reform commissions. In England a similar commission put up alternative proposals for dealing with it. It is a matter of seeing how this commission works but, honestly, the Government cannot abdicate their responsibilities for policy, or the Dáil its responsibility for legislation. If there is a matter of high policy content involved then, obviously, the Government will decide whether this question of policy is right or not.
I should like to refer back to the amendment and suggest that we add a new subsection (g) on the following lines:
indicate the desirability, priority, scope and extent of any proposals for law reform.
Is Deputy O'Malley prepared to withdraw amendment No. 4 on the basis that we put in the new subsection?
Subsection (g), as it stands, is all right from my point of view. The only problem is that this is subject to the first phrase of subsection (3) of section (4):
Where in the performance of its functions it considers it appropriate so to do, the Commission may—
In other words it is totally within the discretion of the commission and the commission need not bother to do any of these things from (a) to the proposed (g) if it does not want to.
That is so and that is why, in relation to the second proposal of Deputy O'Malley, I suggested that it should be " may " rather than " shall ". It should be discretionary that the commission should not have to indicate its priorities. If it is agreed in principle that we think it undesirable to force the commission to declare its priorities and if it is left to its discretion then it is a question of how we word this particular discretion. In my view it fits in better in (g) rather than 2 (a) as suggested.
It is true that matters in subsection (3) are purely discretionary and are only guidelines. The reason for that is that one could not say that it must in every instance establish a working party or prepare a preliminary working paper. We are setting for the commission in a statute guidelines which have worked well elsewhere. In other jurisdictions they have prepared and produced working papers. The House of Commons subsequently prepared a report. We are suggesting that in this legislation these things should be indicated as desirable without tieing the commission in any particular case.
Does that not come back to the first point I made, that it is desirable that priorities be indicated?
Yes, it comes back to that.
That it should be mandatory?
Yes. The point I was making was that by preparing a programme it is in itself listing priorities without putting them in any particular order. If one looks at the law reform commission programmes one will see that they may produce 12 or 14 different areas where reform is needed but they do not say which should be carried out first. I do not think we should force the commission to say which should be done first because, in fact, what we are saying is that they should all be done.
Perhaps that is the trouble.
In view of the fact that we are discussing amendment No. 6 with No. 4, that is a point which we have been trying to cover in the second part of the amendment No. 6. That amendment is to the effect that the commission would set out certain proposals in a programme to be given to the Taoiseach and submitted by him to the Government for approval. The Government need not approve of it; as the position is they can amend it. We thought it desirable that if the Government's views are different from those of the members on the commission on what needs to be done that difference should be disclosed. The commission's proposals should be set out on one side and the Government's amendments to these on the other.
In the light of the amendment which it is proposed to make in section 4 the first part of amendment No. 6 can be dropped because it does not arise now, that is the one which starts as subsection (3) but the one which is subsection (4) in amendment No. 6 should stand. The distinction should be made between the views of the commission and the views of the Government because the public at large would be entitled to know if the commission have a different view on these matters from the Government.
The public will know. It has happened in England that the commission put up proposals which were not accepted by the Government and this came out in its annual report. The commission can say they suggested that an inquiry into a particular area should be carried out but the Government decided it would not. There is no question of hiding it; it will be known at the time of the preparation of the annual report and at the time the programme is being printed.
How will it be displayed?
It will be laid before the Houses of the Oireachtas.
One of the difficulties of a commission where a Government disagrees with it is that of, shall I say, solidarity. A member of a commission, although he may feel very strongly about something on principle, has a dilemma. He either has to resign or do something prejudicial to the smooth working of the order of business, if he expresses a different view and, on the other hand, Governments can be pretty determined and can override and do things and say nothing about them. This is the managerial approach. It is somewhat analogous to the state of a Deputy supporting a Government in the House.
This is slightly different from the case of a Government considering the report of a commission and turning it down. This is an area where the commission will be merely suggesting certain things as things that should be undertaken. If the Government disagree it will probably be because they do not think they have the resources and there will not be any great clash.
Not a very great clash of principle but in practice Ministers may sometimes find that they are presenting something in the House quite bona fide—I hope—and either through their brief misquote, or principally by omission, or unwittingly represent a situation to be slightly different from what it is and those on commissions and so on the other side—the other parties involved—can be placed in a dilemma unless there is some clear method by which their point of view can be brought before the Dáil and can be equally assessed.
The only point I think with which we need to deal further is if the draft programme is prepared by the commission and the Government turn it down or modify it, whether the two should be published side by side. I suggest that is not even necessary because any modification will be known.
We have had quite a lengthy discussion on this amendment. May I ask if Deputy O'Malley is prepared to withdraw amendment No. 4?
I shall withdraw amendment No. 4 but amendment No. 6 is still to be dealt with.
Amendment by leave, withdrawn.
Perhaps the Attorney General would propose amendment No. 4a:
I move amendment No. 4a:
In page 4, after line 31, to insert the following: " (g) indicate the desirability, priority, scope and extent of any proposals for law reform ".
I agree with that.
Amendment agreed to.
Section 4, as amended, agreed to.