JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS díospóireacht -
Wednesday, 26 Feb 2003

Vol. 1 No. 15

Law Reform Commission: Presentation.

Chairman

I extend a warm welcome to our guests attending the meeting today to discuss the work of the Law Reform Commission. This is the first occasion on which the Joint Committee on Justice, Equality, Defence and Women's Rights has held a meeting with the commission in this new Dáil term. It is timely to hold a discussion on the research currently being done with a view to reforming the law.

In the context of its work programme the joint committee will examine issues that surround the reform of current law and the formulation and implementation of policy. It is anticipated that the committee will want to explore further the issues raised at today's meeting and to hold regular meetings with representatives - I do not mean on a monthly basis but at times which the commission might suggest as appropriate, or otherwise that the joint committee might suggest - of the commission to tease out the various issues and, hopefully, to help us in our duties. This is our first meeting. I invite Ms Patricia Rickard-Clarke, commissioner of the Law Reform Commission, to introduce her colleagues.

Ms Patricia Rickard-Clarke

I thank you, Chairman, for the invitation to come before the joint committee. We are delighted to be here. I am a commissioner with the Law Reform Commission. I am accompanied by Mr. Pearse Rayel, project manager, Ms Marian Shanley, commissioner, Mr. John Quirke, secretary of the Law Reform Commission, and Mr. David Gwynn Morgan who, until recently, has been our director of research.

The commission is pleased at the opportunity to appear before the joint committee. The last time we appeared before the joint committee was in October 2002 when we discussed proposals for the second programme of the Law Reform Commission.

Chairman

Before Ms Rickard-Clarke begins I should mention the question of privilege of which I am sure the delegation is aware. Attention is drawn to the fact that members of this committee have absolute privilege. The same privilege does not apply to the delegation. Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside of the House of an official by name or in such a way as to make him or her identifiable. I invite Ms Rickard-Clarke to make her presentation after which I hope she will take questions.

Ms Rickard-Clarke

Absolutely.

Chairman

If any of her colleagues wish to make a brief presentation they may do so.

Ms Rickard-Clarke

Some of the members of the joint committee may not be familiar with the work of the Law Reform Commission. We have prepared a briefing document which members will have before them. That document sets out the membership and functions of the commission, the sources of the commission's work, how the commission does its work, the work in progress and the appendix contains a list of the commission's publications.

I shall refer to one or two points on page two of the presentation to highlight the sources of the commission's work. We receive our work from two sources, the first being a programme of law reform. We are now working to the second programme of law reform which was approved by Government in December 2002, and covers a span of seven years from 2000-07. The detail of the programme is contained in the appendix on page 11 of the document. The second source is references from the Attorney General.

Since the reason we were asked to come before the joint committee was to speak on work in progress, I shall highlight briefly a number of items that may be of interest. In relation to public inquiries, on Sunday last the Minister for Justice, Equality and Law Reform spoke about proposed legislation on committees of inquiry. In a few weeks we will publish a paper on public inquiries, including tribunals of inquiry. Our input has already been taken into account by the Department of Justice, Equality and Law Reform.

In March we publish a paper on business tenancies which reviews landlord and tenant legislation from 1980 to 1994. Our recommendations will complement the proposed legislation which has been initiated by the Department of the Environment and Local Government on residential tenancies.

We are preparing a paper on the law of the elderly. That topic will have wide appeal. The President, Mary McAleese, has agreed to launch that paper in June 2003. In that paper we will examine issues of capacity regarding the elderly and make recommendations for substantial reform of the wards of court system. We will also address issues such as undue influence and unconscionable bargains, particularly with regard to the elderly.

In January we commenced a two-three year project in the area of e-conveyancing. We decided to do this in light of the Government's commitment to e-government. We propose to have a comprehensive examination of conveyancing law and practice and, hopefully, make recommendations that will lead to less expensive conveyancing for house purchases, etc. The general remit is for domestic residential house purchases.

In January we launched a paper on the procedures in judicial review cases. There is also in the legislative programme a Trust Bill, which has arisen out of a report we prepared in 2000 on variation on trusts. We are also doing further work which we hope to incorporate in that Bill.

In addition to those general topics from the programme, we have had a number of references from the Attorney General recently. The first one which is of relevance and which will be published in the next few months arose out of the parliamentary inquiry on DIRT. The Attorney General asked us to consider issues of a fiscal prosecutor and a fiscal court. Just a few weeks ago we received two new references from the Attorney General, one on the conferring of power on the DPP to appeal lenient sentencing, and the second on the establishment of a DNA databank and, in particular, to consider the constitutional and human rights issues of having such a databank. On Monday last we published our final report on a further reference received two years ago from the Attorney General on collateral benefits. Our recommendations were that double compensation should not apply in respect of a claim for personal injuries. That is a brief outline of some of the topics. It will be clear from the detail of the programme that quite a number of the topics of that seven-year programme are already in train or nearing completion. We will be delighted to answer questions on any of the topics, even those I have not mentioned.

Another point we would like to mention is the question of the implementation of our programme. There is reference on page ten of the document to the Attorney General's consultative committee. That committee was set up a number of years ago and one of its terms of reference was to formulate the second programme, which is now being done. Another term of reference was the implementation of the Law Reform Commission's reports. There is a procedure in England of fast-tracking certain legislation. We believe there are advantages to that procedure and we have some ideas on it. If the committee members were interested, we could do a note on that but the remit of the consultative committee is the implementation of the work of the commission. I will conclude on that.

Chairman

Thank you. We will now open the debate to questions from members. Ms Rickard-Clarke or her colleagues may intervene to reply as appropriate.

Deputy F. McGrath

I welcome the commission members and thank them for their work which we, as legislators, value. On a personal note I particularly welcome John Quirke, who is a neighbour of mine. We live in the same estate on the northside.

I want to refer to the 23rd report which was given to us some months ago. Page 10, which deals with section 4(1) of the Act, states that the commission shall undertake examinations and conduct research with a view to reforming the law. I presume that is a broad spectrum of research but is the commission aware of the public's alienation from and lack of confidence in our justice system, particularly on the part of victims of crime, those living in the poorer sections of society and the elderly? Has the commission come across that in its research? We have also seen a dramatic increase in violent crime, drug abuse and gang-related crime and the sad reality that only one in four crimes are reported to the Garda. When the commission makes its deliberations, is it aware of that crisis and what is its response?

On page 11 of the same report the commission outlines a strategy and business plan. That is welcome because it is essential that the commission plans for the future. There is provision for a strong consultation process, contact with the law society, websites, etc., but does the commission have adequate staff and resources to do its job effectively? What would it like us, as legislators, to do in that regard?

On page 15 of the report there is reference to the consultation paper on homicide and the mental element in murder. Many of us have serious concerns about violent, mentally ill people in our community who are not under any care or supervision. That lack of care or supervision is a major contributor to violent crime in our society. As a councillor and a Deputy I would like to know if there are many people in the wider community who are a threat to society.

On page 17 there is a reference to the court poor box and concern is expressed about the lack of accountability. I do not have a major concern about that issue because before I was elected to the Dáil I worked in an inner city school which got a regular contribution from the court poor box. We spent that money on trips for the poorest children in our school. We accounted for that money by way of reports to the judges who made it available to us. The commission need not be concerned about the money put into court poor boxes because it is spent on excellent projects.

On public inquiries, there was mention earlier of the Tribunals of Inquiry (Evidence) Act 1921. That legislation, referred to on page 19 of the report, appears to be outdated. Has the commission any experience of the German system? Under Article 44 of its constitution it set up an excellent committee system which allows inquiries to take place without major cost to taxpayers. Would the commission consider examining that system?

On page nine of the commission's report presented to us today, there is reference to landlord and tenant law and the working group. When talking about landlords and tenants it must be remembered that only 27% of landlords are registered. Landlords exploit many people, including students, by imposing massive rents. That is an area we need to regulate more strongly.

The commission's report on the law and the elderly will be published in June. That issue needs to be fast-tracked because lack of respect for elderly people is a major problem in society. We need to take practical action to deal with that problem.

The commission should be concerned with implementation of legislation. Its contributions and ideas are valuable. I would like to get some advice on the areas it would prioritise in terms of fast-tracking. I thank the commission representatives for attending the meeting today.

Chairman

Rather than take questions from the other members, perhaps we could hear the replies to the large number of questions posed by Deputy McGrath, for which I am grateful.

Ms Rickard-Clarke

Yes, Chairman, but if you do not mind I will not take them in the order they were put.

Chairman

Other members have questions and because of time constraints I would be grateful if you could be as brief as possible.

Ms Rickard-Clarke

On the question of the law and the elderly, we have consulted widely with various people. We have a formal consultation process for the papers but we also participated with the group that studied abuse of the elderly. We participated with the Human Rights Commission on the elderly in institutions. We consulted widely with many age associations and organisations and with practitioners dealing with elderly issues. We are aware that major problems have not been addressed for years and that there is urgent need for legislation in this area.

On the landlord and tenant issue, we are concentrating on business tenancies. The registration the Deputy spoke about concerns residential tenancies and that legislation will come from the Department of the Environment and Local Government. We are not dealing with residential tenancies.

I will ask Professor Gwynn Morgan to comment on public inquiries and the issue of the court poor box. Unfortunately, Professor Barry McAuley, who is our criminal law expert, is not here, but on the question of figures, the Courts Service Board has only recently been set up and there is a dearth of statistical data on which we can base our findings or make comments. The position in that regard has improved greatly since the Courts Service Board came into existence in that it is now aware of our need for empirical data for our reports.

On the question of the problems in society, we try to make ourselves aware of those by consulting widely with various people at the initial stages.

On the point with regard to prioritising, whatever we receive from the Attorney General gets absolute priority. In the second programme some of the items we consider should be given priority are asterisked. Other than that, we have regular meetings with various Departments, including the Department of Justice, Equality and Law Reform. We would examine the legislative programme and prioritise in line with what we believe will be proposed in that regard.

Professor David Gwynn Morgan

There is more than one type of public inquiry. There are tribunals of inquiry, which are the best known type, but there are others which labour more quietly, economically and quickly and, therefore, perhaps more successfully. I am thinking of company inspectors and people who investigate a number of flying accidents where an accident occurs or nearly occurs. They operate probably more successfully. We have been studying those as well as tribunals of inquiry to establish what is the secret of their success. Something that is too well known to be a secret is that if one is having one's character traduced in public, the judges have said that it is a constitutional right to have representation and a feeling has grown that the State has to pay for the lawyer.

One of the ideas on which we have been working, having examined the way company inspectors and aeronautical surveyors operate, is the same sort of idea that the Minister, Deputy McDowell, is now bringing forward, that there may be something to be gained by having an inquiry sit in private, investigating the evil rather than the evil-doer with a view to preventing it from happening in future, rather than perhaps giving the culprit his or her day in the stocks in public. The advantage of doing it that way is that probably the people involved cannot claim any constitutional justice rights. Therefore, the inquiry will proceed more quickly and more cheaply. Without going into detail, those are the lines along which we are thinking in respect of public inquiries.

As regards the poor box, there are two aspects to it. The first was covered by Deputy Finian McGrath, the question of keeping track of the money being well spent. I am glad to know that it is well spent in his area, although it may be the case that it is not so well spent throughout the Twenty-six Counties. The public are more likely to have confidence if there is some kind of tracking system. The second aspect to it is that the person who has paid that money does not have any kind of conviction against him or her. This relates to the Chairman's earlier remarks about people having confidence in the justice system, in particular, the criminal justice system. To put this in an exaggerated kind of form, there may be a sense that middle class people with influence and effective lawyers benefit from getting the prosecution against them withdrawn because, for example, Daddy pays €1,000 to the poor box, whereas their equivalent from less well-informed sections of the community may be convicted, even imprisoned and will certainly have a mark against his or her character. One needs to take account of those two elements, first, what happens to the money and, second, what happens to the people who are convicted or not convicted and whether this undermines confidence in the justice system.

Ms Rickard-Clarke

Chairman, you asked about resources. While no organisation would admit to having sufficient resources, the true point is we have received three new references from the Attorney General in the past year. We are extremely busy and have a busy programme. There are issues in society that need to be addressed and if we had more resources, we could do more research.

Chairman

I have three questions and then I will call Deputy Paul McGrath, the Vice-Chairman of the committee. Are there lessons to be learned from the UK in fast-tracking certain legislation? I am thinking of legislation on terrorism or other such legislation. On the law of the elderly, which the commission is examining, a number of elderly and not so elderly parents, some of whom would be in their late fifties, who have sold their house, moved in with a daugher and son-in-law or a son and daughter-in-law and subsequently fallen out with them, have come to me seeking local authority housing and they deeply regret having sold their house in the first place. Is the commission considering that area in its examination of the law of the elderly?

In regard to insurance, the question of the adversarial system here in which there is senior and junior counsel on both sides and a judge, compared to the European model, which adopts an inquisitorial approach in which there is one judge who takes a hands-on approach, asks the questions and makes a decision on the case, was discussed on a radio programme today. Is there some way that our system can be better dealt with in terms of reducing insurance costs? I ask the representatives to bank those questions and I call Deputy Paul McGrath.

Deputy P. McGrath

I welcome the representatives. It is nice to put faces to the names we see on many of the documents we get from time to time.

With regard to Deputy Finian McGrath's point concerning the court poor box and Professor Gwynn Morgan's response to it, will he elaborate further on it? I am interested in the work the commission is doing on it and what it will bring forward. While Deputy Finian McGrath outlined that in his experience the money emanating from the poor box was well spent in his area and no doubt it was, is there a requirement that the District Court has accounting procedures for how the poor box money is spent? People sometimes wonder where it is spent. Is there a requirement in law that it be accounted for to the court? Who is in charge of looking after that or is it the largesse of the judge to say, for example, that Deputy Finian's McGrath's outfit down the road seems to do a good job, he writes back to us and the judge decides to give him more of that money again? It is a question of accountability. There would be a 5% cream off in respect of it - I jest of course.

Deputy F. McGrath

I object to that.

Deputy P. McGrath

What type of accounting mechanism is in place?

Professor Gwynn Morgan mentioned the other side of the equation. Is there a sense among the public, which perhaps recent events have helped to heighten, that if one arrives at court, is well attired with senior and junior barristers and a PR person, and has a fairly fat chequebook, that one is likely to get a different outcome from the court than if one is in receipt of unemployment assistance or unemployment benefit, one's parents are not accompanying one or there is no one in the court to say a good word for one? Is there not a grave danger in that regard? Is there not a sense among the public, particularly in recent times, that perhaps one can buy the outcome of a court case? I hope the commission's paper on this area will examine this issue and I hope it has the resources to do that. It might be opportune for the commission to indicate what it is doing at this time in this area.

The commissioner indicated that she would like more resources. Can she give us a ballpark figure in regard to the commission's budget, how many people are working in the commission and are all the staff working full time? I do not want all the details, merely ballpark figures.

To what extent is the Law Reform Commission a resource tool of the Attorney General's office? Is that, in effect, what it is - an outpost of the Attorney General's office acting entirely at its behest and producing material for it? The commissioner mentioned the contact that has been established between the Attorney General's office under the 1998 Act and the commission seems to have regular briefings from it. Has that brought the commission closer to that office to the extent that, in effect, the commission is acting at the behest of the Attorney General's office most of the time?

Professor Gwynn Morgan mentioned the input of the Minister, Deputy McDowell, in relation to the tribunals, how they work and what will happen in that regard. Were the thoughts that have come forward from the Minister in recent times generated within the Law Reform Commission or by the Minister in respect of which the commission is following up and producing material to back them up? Where were these new ideas generated?

Chairman

Could the Deputy be more specific about the new ideas?

Deputy P. McGrath

They are the ideas of being able to run tribunals more cheaply and being able to do the work more efficiently. Professor Gwynn Morgan talked about it a few minutes ago. Has the Minister had sight of the report that will be produced over the next couple of months? Is he working from your report or is this something that arose independently?

Ms Rickard-Clarke

I will address the two lots of questions together. With regard to the question about the elderly, the scenario that was painted is a serious problem. Where we come to this topic our aim is to try and inform people to act in the best interests of the elderly at all times. In the enduring power of attorney legislation there is a requirement that people act in the best interests of the donor of the power. That does not permeate other legislation and we will be following that trend. In other words, an adviser, in looking at an elderly person going to live with children or whatever, will perhaps advise against that because of the problems that may arise at a later stage. One hears the advertisements advising people to release equity in their homes to pass it on to the next generation. Again, we will highlight the point that the obligation of elderly people is, first and foremost, to themselves and that people do not have a right to inherit and so forth. They are relevant issues.

I will ask David to talk about fast-tracking in the UK and the point made about insurance. With regard to Deputy Paul McGrath's point about the accountability of the District Court and who is in charge of the court poor box, that question was raised by the Committee of Public Accounts. David has already spoken on that and will refer back to it. With regard to the court poor box, we have carried out a survey of all district judges and asked them when it is applied and other questions. Hopefully, we will have full details of that in our paper.

I will ask John Quirke, the secretary, to speak on the budget. One member asked if we are a tool of the Office of the Attorney General. Absolutely not. We are an independent statutory body. The member mentioned regular briefings from the office. There are representatives on that consultative committee not only from the Office of the Attorney General but also from various Government Departments. It enables us to ask what is happening to the implementation of various reports.

With regard to prioritising, usually issues are referred to us because they are urgent. They have arisen from various parliamentary committees, such as the reference for a fiscal court, which also arose out of the Committee of Public Accounts, and the fiscal prosecutor. Again, as they have been aired in Parliament, we believe they deserve priority and deal with them on that basis. We mainly work according to the programme, which is a seven-year programme, unless we get work which we must prioritise for the various reasons I mentioned.

I will ask John to discuss the budget and then call on David.

Mr. John Quirke

The budget for 2003 is €1.56 million. That is to cover all activities of the Law Reform Commission and salaries.

Chairman

Is that the amount requested from the Government or was more sought?

Mr. Quirke

That is the amount requested.

Ms Rickard-Clarke

The resources we have do not cover the significant voluntary input we receive from many people. Our working groups work for nothing. They come in every month or whatever when we run a programme on a particular topic. On judicial review, for example, we had a number of judges, senior counsel, junior counsel, solicitors and others. All willingly give us their time without any remuneration. It is done on a voluntary basis because people are interested in law reform and the law. If we did not have that input, we would not be able to produce at the current rate or level. The budget does not cover that significant voluntary effort.

Chairman

Legislators are grateful to the people who voluntarily give their time to these most important tasks.

Professor Gwynn Morgan

I will outline how fast-tracking works in Britain. A law reform measure is one that is not politically controversial or policy laden. It is regarded as having those qualities if it emerges from the Law Commission or is mainly based on a law reform proposal from the commission. It does not have to be debated in plenary on the floor of the house. It is heard in committees.

Chairman

That is the equivalent of our Second Stage.

Professor Gwynn Morgan

That is right. Even the Second Stage, the discussion on the principle and shape of the measure, goes to a specialised committee. Then there is the detailed line by line discussion, probably in the same committee. Then the review, which is the equivalent of the Fourth and Fifth Stages, also goes to that committee. The committee will call experts, legal practitioners, planners, accountants or whoever happens to be relevant before it.

We hope to get advice from members of this committee as to whether this might be something which would go down well in Leinster House. The difference a law reform measure would make is that, unlike an ordinary Bill, it would not take up the precious commodity of time in the House. It would take up the time of a committee. I do not know whether that would fit in with the new status Oireachtas committees will have under the Houses of the Oireachtas measure. The committees will have more authority and more to do and this would be a way of showing the public greater productivity.

Sometimes parliaments are good at introducing new laws on equality and other reforms but they are not so good at uprooting old laws which might harm somebody without doing any meritorious person any good. One thinks of the rule against perpetuities, for example, which can be damaging in its effect. It is appropriate that these things should be uprooted. It is probably not necessary that they should come before all Deputies and Senators but Members who have an interest in them can do the job on behalf of the House. That is fast-tracking. I am interested to know whether the committee thinks there is anything in it for this Parliament.

The second question was about the poor box. The poor box is a rather lawless thing. The kindest thing one can say about it is that it is Portia's idea of the quality of mercy. However, it is uncontrolled and there is no audit of what happens to the money. There is a statutory equivalent, the Probation Act, and it usually is a District Court judge who would be involved. If the well-known example of the Dingle forgeries case had ever come to court, it might have been appropriate for the Probation Act. There is a statutory authority and the culprits are not convicted but they are put on probation. There is, therefore, some type of control. The poor box, however, is a lawless institution and it probably would be appropriate that more use is made of the Probation Act, possibly with some reforms.

Chairman

There was another question regarding the adversarial versus inquisitorial approach to insurance claims. I do not know if it is relevant here or if you can make a comment on it.

Professor Gwynn Morgan

I suppose a toe, or perhaps a foot, has been dipped in the water with the new compensation tribunal that is being tried out even as we speak. That does not go the whole way as it only deals with the amount on the basis that liability for an accident has been admitted. The argument then is about how much the damages should be. This is currently being tested and we look forward to seeing the outcome. Our programme includes the question of personal injuries. Like everyone, we are waiting to see how this experiment is going to work.

Chairman

Recent research work has been done on e-conveyancing and how it ties in with the modernisation of land registration. What is the commission's view on the compulsory registration of land?

Deputy P. Power

I welcome the members of the secretariat of the commission to this meeting. I do not underestimate the enormous contribution the Law Reform Commission has made to the reform of law in this State. One only has to look to the establishment of the commission in 1996 and the prodigious number of publications that have been undertaken by it to realise the contribution it has made. Reports have been published on the civil liability of animals, illegitimacy, divorce, nullity and foreign divorce. These now form the basis of our laws and the commission is to be commended for its work in this regard. It is useful to have a meeting such as this as the commission obviously hopes the work it does will form the basis of real law reform that can only take place in the Oireachtas. This kind of interaction is very important. I found the contributions made by the commission to be informative and I hope Members can inform it of our approach to law reform.

I echo what the Chairman has said about the voluntary contribution many people make to the Law Reform Commission. The budget of €1.56 million is minuscule when one notes the amount of work produced by the commission. I am not talking about flimsy reports or reports that catch the public mood. All the reports have withstood the test of time because of the huge amount of research that has gone into them. The reports are weighty documents in their own right. The return we get for the small outlay of €1.56 million is great.

We could be here all night discussing the elements of the future programme of work. While I am conscious that it is the commission and not members that is expert in this area, it is fair that we should comment on some of the work that it is undertaking. I am also conscious that many of the reports do not relate to the glamorous area of law reform. As Professor Gwynn Morgan has said, some of it deals with the boring reform of arcane laws. The law of perpetuities does not catch the public imagination and I can assure Professor Gwynn Morgan that if he comes before this committee with a report on this I will absent myself, as I have no wish to be involved in the reform of that law.

Much work could be done on the reform of business tenancies. These have become incredibly complex over the past ten to 15 years and I blame members of my former profession for this. I have often met clients who are exasperated by the amount of excessive detail they have to go through to establish even a small business. Add to that the enormous costs they face to secure ordinary commercial leases. If there were any way of bringing standardisation to this area I would welcome it. I commend to the commission future reform in terms of statutory rights to the renewal of tenancies. The rules regarding three and five years were increased a number of years ago and a valid case can now be made to increase this to a longer period. People are now much more aware of their statutory rights than heretofore. The rules can stifle the development of small businesses in this country.

There was a report in yesterday's newspapers arising from the Supreme Court decision on Carrickmines Castle that suggests the cost of compulsorily acquiring the last 10 kilometres of the M50 is going be €300 million. This is an insane amount of money and is greater than the cost of the vast majority of infrastructural projects that are currently under way. This money will be used to compensate landowners with prices vastly greater than their initial investment, or the value when they inherited it in many cases. The commission would spend its time wisely if it considered how the laws regarding compulsory purchase might be reformed. Given the rights to the protection of private property, the commission will have to look at the question of constitutional rights.

Professor Gwynn Morgan asked if we could give any input regarding the tribunals of inquiry and how they may be undertaken in a more cost effective way. The professor is an eminent constitutional lawyer and will recognise how far the Oireachtas has come in organising its work. This work has now been brought to a very sophisticated level by our system of committees, I am thinking specifically of the DIRT inquiry. This is a prime example of how complex public issues have been dealt with in a cost effective way. Had the DIRT inquiry been conducted by way of a public inquiry and given the involvement of the banks, its costs would dwarf those of some of the ongoing inquiries.

I would welcome Ms Rickard-Clarke's views on what could be done if the Law Reform Commission was given an increased budget. To what degree are the commission's reports incorporated into statute law, which is our remit? Despite concerns about fundamental human rights, I and most of my colleagues fully support the proposal to establish a DNA databank. We should consider such an initiative as the benefits deriving from a DNA databank far outweigh the potential consequences in terms of interference with human rights.

With regard to the proposed reform of condominium or apartment law, it is vital that this area is reformed. It has become far too complex, specifically in relation to the corporate structure of multi-tenant buildings. In rural areas, where multi-tenant buildings are small, the cost of maintaining corporate structures to manage them are far in excess of what one should need to spend on the management of such units. I apologise to the Chairman for speaking at length, but I find the interaction between the Law Reform Commission and the committees of the Houses to be a worthwhile and important exchange which should take place at least once a year.

Deputy Moynihan-Cronin

I welcome Ms Rickard-Clarke and her colleagues. This is a most interesting discussion, which we would all like to continue for the rest of the evening. Unfortunately, this is not possible. I have been a Member of the House for ten years. With the benefit of hindsight and acquired wisdom, it is possible to contend that some of the legislation passed years ago could have been drafted differently. Legislation should be reviewed and perhaps the committee system is the best way to go about it. Unlike the House, we can invite experts to appear here to give their opinion. As I am not an expert in law - I read up on it - it would be useful to get expert opinions. We should take up this matter up. While I accept there is a large volume of legislation, in certain circumstances it would be preferable to re-examine legislation already on the Statute Book than to introduce new legislation.

The last working group on conveyancing law was established in 1987. Were changes made to conveyancing law following the group's last report? With regard to the law on the elderly and wardship, the rights of people in institutions has been a long-standing concern of mine. This is a delicate matter, which must be addressed, particularly as regards psychiatric units in which people have been confined for years. Is the Law Reform Commission examining this issue?

I recently tabled a question to the Minister on the waiting times for free legal aid in various regions. It transpires that some people must wait for six months to receive it. The anomaly here is that people with money have access to legal representation, whereas people without money have not, particularly in the area of family law where many of the cases are urgent. Is the commission addressing this issue? What proposals does it have to reform the system of free legal aid? While people in County Kerry wait for six months, people wait shorter periods in other areas. The system should be fair to everybody.

Chairman

Would it be possible for the commission to produce a brief report, perhaps one or two pages in length, on the question of the committee performing the fast-tracking function? I understand that in the not too distant future, plenary sessions will be held for three weeks at a time, followed by one full week for committees. We could then distribute the report to the appropriate bodies and members to find out if they are interested in the proposal.

Deputy P. Power

Will Professor Gwynn Morgan consider the possibility of the Law Reform Commission helping the process of fast-tracking proposals by drafting legislation?

Ms Rickard-Clarke

We do that already.

Deputy Hoctor

I thank the Law Reform Commission for attending and providing the committee with an informative presentation. The rapid pace of change in society has undoubtedly placed greater demands on its resources. On behalf of the committee, I commend the commission for the work it has done and will, no doubt, continue to do.

I commend the work of the commission's working group on the landlord and tenant law, a very important area. My colleague, Deputy Finian McGrath, has already referred to the exploitation experienced by some tenants, particularly students living in sub-standard accommodation. Has the working group addressed the anomaly of health boards seemingly having no difficulty in subsidising tenants living in sub-standard accommodation? Landlords have a duty to provide adequate accommodation, yet State funds are being used to subsidise poor quality accommodation. This matter needs to be examined.

The section of the report dealing with criminal law refers to restorative justice and alternatives to the current judicial system. I commend the commission on this. Such alternatives have been employed in New Zealand and have proved fruitful. It is important we investigate this issue further. I understand, however, that certain measures will be taken in 2004 and positive projects are already under way. For example, I was closely associated with a community reparation project in my home town of Nenagh. What approach will the Law Reform Commission take to addressing the restorative justice alternative?

The commission's intention to examine further the rights of cohabitees and adoption law is commendable. In recent times, Deputies have been lobbied by various men's groups on family law. Is the commission considering ways in which family law can be addressed? I am not arguing that the issue should be addressed because it is currently controversial, it is a serious matter. What is the commission's position?

Chairman

Does the LRC plan to undertake further research in the near future on intoxicating liquor licensing reform, an area the committee will touch upon? I ask the commissioner to do her best to respond to as many questions as possible.

Ms Rickard-Clarke

On the last question, we do not have any proposals on intoxicating liquor licensing. I will first address the question raised about e-conveyancing in the context of the working group on land law and conveyancing law which was set up in 1987. A question was asked about the implementation of the group's reports. Arising out of the group's reports, legislation was introduced on powers of attorney. In addition, as I mentioned earlier, variation of trusts is on the legislative programme, as are certain other minor issues.

We are about to publish the seventh report of the group, which has been reconstituted in a new e-conveyancing group. This was done following a close examination of its work. It was pointed out that we have archaic laws which should be made more realistic in terms of what is needed in a modern society. We then addressed the e-conveyancing issue and established a new group with three strands. The three strands are to deal with the archaic law of substantive law issues; administrative law to bring matters into the remit all the Departments and public utilities to co-ordinate the whole thing; and technology. Technology means one must have an absolute registration of title system, which we do not have at the moment. Legislation was introduced in England on e-conveyancing which will come into effect in October of this year. However, they started from a basis where they had almost 90% registered land. I was asked whether it ties in with the modernisation of the Land Registry. The answer to that question is "yes" because what it is doing will fit in neatly with what we are suggesting. In fact, a senior registrar of titles is working in one of our groups as is the chief systems information officer of the Land Registry and, indeed, people from many other Departments and public utilities, etc. We have only just started and that whole project is being led by Professor John Wylie, as is the project on landlord and tenant law.

Moving on to landlord and tenant law, Deputy Power asked about business tenancies. To come back to Deputy Moynihan-Cronin's question as well, our landlord and tenant working group, which commenced work in 2001, is producing a report on business tenancies and it is confined to commercial tenancies, not residential ones. It will be the first of a number of reports on commercial landlord and tenant issues.

On the issue of rights of renewal, statutory renewal and so on, as members will know the 35 year lease gave rise to huge problems and it was reduced back to 21 years. There is very limited contracting out even where commercial landlords and tenants know what they are entering into, yet people are tied into these arrangements which are not commercial, etc. That is an issue at which we will look and on which we will make suggestions.

On the Carrickmines issue, one of the problems there is the lack of legislation where planning permission has been given and then a national monument is discovered. We have national monuments legislation but it does not deal with the situation after the granting of planning permission. I take the point on CPOs. It is an issue which is not on our list at the moment.

In regard to an increased budget, without going into basic details of housekeeping, we would like to have a much bigger budget for pay for research so we could contract in people. We contract in people at a junior level, at postgraduate level, for a year or two but we cannot get people at a higher level because we cannot afford to take them out of academia or practice for three or five years. We would like to be able to do that.

On the level of implementation of the proposals, we did a review about two years ago and the figure seems to be around 50% to 60%, which is not bad. Our view was that it was much less. We are reviewing that issue again because we are due to meet the consultative committee and the Departments and we wish to again stress the implementation point with them.

We have commenced research on condominium law. One of the issues which arose was the corporate structure. We made submissions to the company law review group which is looking at the issue of different types of corporate structure. We have put that on hold. That group is due to produce its second report this year. I hope there will be something in it which we can hang on to and then make further proposals.

Deputy Moynihan-Cronin asked about the working group in relation to implementation. I mentioned the enduring powers of attorney and variation of trusts. She mentioned elderly people in institutions and the rights of those people. We are not looking at that but the Human Rights Commission recently completed research work on that. It is due to report shortly on the elderly in institutions, if it has not already reported. We sat on one of its advisory committees in order to tie in with our preliminary suggestions. Free legal aid is a policy issue in terms of money, so it would not fall within our remit. Of course, we are very aware, particularly in family law cases, of the huge delays.

Deputy Hoctor asked about restorative justice. We have just started on that and have looked at New Zealand. The rights of cohabitees and the issue of men's groups were raised. Last July the Law Reform Commission in England reported on cohabitation. It spent nine years looking at the issue from a property law point of view and it came up with no proposals. We are looking at it but are concentrating on the family law issues. I hope we are narrowing down to issues of people living in a sexual relationship, although we have not really decided, or something in a family context. That will include single sex as well as heterosexual couples. That is the way we seem to be approaching it. I hope I have answered all the questions.

Chairman

Thank you very much. It was a most interesting discussion. As a number of members said, we would like you to come back on a regular basis. I receive copies of LRC publications at all times but to ensure they are brought to the attention of the committee, I would ask you check the mailing list to ensure publications are sent directly to the secretary of the Oireachtas joint committee. If there are any other matters you wish to bring up and which might be pertinent to this committee and which might be of interest to us to discuss, please let us know. We would be delighted to hear from you. We look forward to seeing you again in the not too distant future. You have raised a number of matters which will get many of us thinking and on which, I hope, we will act.

Ms Rickard-Clarke

Thank you.