Reforming Law Reform

One of the recommendations made in the report of the  Special Group on Public Service Numbers and Expenditure Programmes (‘An Bord Snip Nua’) concerns the Law Reform Commission, and it runs as follows:

The Law Reform Commission’s mandate is to keep the law under review and make recommendations for reform. The Law Reform Commission was set up on a statutory basis independent of the Oireachtas and as well as law reform has been accorded some other functions such as legislative restatement and legislative directory.  The Group holds the view that the Law Reform Commission could be used in a more targeted way by moving away from the model of a permanent commission towards one in which the commission is re-convened as required to address government mandated reform agendas. As a first step, the discontinuation of the Law Reform Commission should yield €2.8m in savings. The Group envisages that up to half of the Commission’s permanent staff could be assigned to the AGO on ongoing work such as legislative restatement and legislative directory.

The Law Reform Commission was established under the Law Reform Commission Act 1975. Section 4(1) of that Act sets out its agenda:

The Commission shall keep the law under review and in accordance with the provisions of this Act shall undertake examinations and conduct research with a view to reforming the law and formulate proposals for law reform.

In other words, the intention underlying the establishment of the Commission was to ensure that there is an independent body capable of addressing specific reform proposals, while also having the capacity to undertake a general analysis of the state of the law and put forward an agenda for reform. The first President of the Commission was the celebrated Supreme Court judge, Brian Walsh, and he was succeeded by High Court judge Declan Budd, and most recently by Supreme Court judge Catherine McGuinness. Apart from the President, the Commission itself is small, consisting of only one full-time Commissioner, and three part-time ones. However, it has a significant number of expert staff, including (as far as I can tell) 20 researchers. The permanent staff are led by Raymond Byrne, who is as it happens on secondment from DCU.

The Commission’s current programme includes alternative dispute resolution, sexual offences, e-conveyancing, children and the law, assisted human reproduction – which demonstrates the wide-ranging approach that the Commission can take.

The establishment of the Commission in the 1970s had been preceded by strong lobbying. Law Reform in Ireland had proved very hard to achieve, and by the mid-1970s the record of law reform consisted of some very imaginative pieces of legislation – generally prompted by the emergence of a (rare) reforming Minister – and of very occasional instances of reforming court judgements. An Example of the former would have been the Succession Act 1965 (initiated by Charles Haughey, and giving succession rights to spouses and children); and of the latter, the ground-breaking Supreme Court judgment of McGee v. Attorney General (1974, which changed the law on contraception). But there was no consistent programme of law reform. The model used by those who were lobbying at the time was the Law Commission, the law reform body for England and Wales and which had been established in 1965.

So what now? Of course we must understand the need for savings, and it’s easy to keep picking off Bord Snip proposals and say, in effect, that none of them will work. But there is a high price to be paid, in almost every walk of life, for failing to address law reform. The Bord Snip concept of law reform is project specific, but the need for law reform is not. Government departments are well able to handle many of the specific reform proposals that may come up, but there is a need for a much wider view of the problems and needs of our legal system, as it interacts with citizens and organisations.

It seems to me that this proposal should not be adopted. The cost of doing so would well exceed the savings made.

Reform of the legal system

It was reported recently in the Irish Times that a judicial committee was recommending the establishment of a new court of civil appeal in Ireland. This is a welcome recommendation, as its implementation would help end the severe congestion of the legal system, leading to long delays in appeals. 

There is probably a need for a more root-and-branch analysis of our legal system. We have inherited a common law framework which, in many ways, has served the country well, and certainly there have been many fine legal practitioners and judges who have helped ensure that we have a system that recognises and protects the main ingredients necessary for both a democratic state, a fair society and a functioning economy. However, it is a legal system that on the whole was developed in the 19th century, and aspects of it need serious overhaul.

It is arguable, for example, that the time has come for a professional judiciary – rather than one where judges are appointed to the bench after a long career in practice. We need a system of legal training that makes lawyers more familiar not just with the law, but the areas of life and work that they will have to adjudicate on. We need to organise the legal profession in such a way as to cut out restrictive practices. We need a courts system that is organisationally resourced sufficiently to dispense justice speedily. And we need to ensure a more realistic pricing of the service.

We also need to develop a way of ensuring that cases that ought to be resolved by other means – generally alternative dispute resolution – do actually go that way. And we need to have an understanding of legal processes amongst the general population that discourages people from unnecessary litigation, the costs of which are generally borne by the rest of society.

These are big objectives. But the time has come to discuss them, not perhaps in a piecemeal way (which is how our law reform process has tended to go), but in an overall analysis of the system and its problems.