Adjournment Debate: Law Reform Commission Reports.

Thursday, 8 December 1977

Seanad Eireann Debate
Vol. 87 No. 9

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Mrs. Robinison: Information on Mary Robinson  Zoom on Mary Robinson  I want to raise on the Adjournment the requirement for laying the annual reports of the [902] Law Reform Commission before both Houses under section 6 of the Law Reform Commission Act, 1975. To my knowledge, although the Law Reform Commission have been in operation since October, 1975, no such annual reports has been laid.

Section 6 of the Act provides as follows:

As soon as may be after the end of each year, the Commission shall make a report to the Attorney General of its activities during that year under Section 4 of this Act, of any preliminary working papers published by it during that year, of any examination during that year of the legal system of a country other than the State and of the activities during that year of any working party or advisory committee established by it. The Attorney General shall, as soon as may be, send a copy of the report to the Taoiseach, who shall submit it to the Government and copies of the report shall, as soon as may be, be laid before both Houses of the Oireachtas.

In my experience this is a particularly elaborate and detailed provision for the laying of annual reports before the two Houses, both as to its content and because of the fact that the Attorney General would forward it to the Taoiseach who would ensure that it was laid before both Houses. The elaborate procedure reflects the emphasis which was placed on this section when the Bill was debated in the Seanad on 10th April, 1975. In introducing the Bill the then Attorney General, Deputy Declan Costello, who was a Member of the other House, said at column 210 of the Official Report:

It will be observed that section 6 of the Bill will require the commission to furnish an annual report of its activities during the year. The report will also contain references to other matters referred to in the section. After submission to the Government, copies of the report will be laid before both Houses of the Oireachtas. This section, together with the preceding section which provides that a copy of the commission's [903] approved programme is to be laid before both Houses of the Oireachtas, will facilitate discussion in the Oireachtas on law reform matters in general and the work of the commission in particular. I feel sure that Members of this House will welcome the opportunity which will thus be afforded to contribute to the ongoing work of the commission.

Subsequently, when section 6 was discussed on Committee Stage in this House I referred to the terms of the section and welcomed it. I was followed by Senator Alexis FitzGerald whose contribution at column 264 was as follows:

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.

Members of the Seanad had welcomed the fact that there would be an annual, detailed and meaningful report from the Law Reform Commission about their activities, about how they were performing in relation to their programme, about the working parties they might have established, about the extent at which they had examined the law in other countries. The Attorney General emphasised the importance of this and it was stressed by us on Committee Stage.

Regrettably, however, the clear legislative intent does not seem to have been carried out. The Bill was passed in April, 1975 and the commission were established and came into full working order in October, 1975, so that they have been more than two full years in working existence, but no annual report has been tabled. Consequently the Members of this House and the other House have not been able to fulfil that constructive role of examining the progress of the Law Reform Commission, of helping perhaps to reassess priorities and of contributing to the debate on law reform.

[904] I would like to make it clear from the beginning that my primary purpose in raising this matter is not to be critical of the Law Reform Commission, but rather to be supportive of the purposes of the Law Reform Commission. I warmly welcomed the Bill to establish it. In my view the necessity to concentrate on law reform is a real priority and it is because of this basic belief I want to insist that the annual reports are laid and do stimulate the type of debate which was intended and promote a constructive appraisal of law reform. The extensive scope of the first programme of the Law Reform Commission, which was submitted to the Government in December 1976 and laid by the Taoiseach before both Houses on 4th January, 1977 as provided in section 5 (2) of the Act makes this all the more important.

This programme is very broad and ranges over extremely important areas of law. It is important that both Houses monitor the progress on it of the Law Reform Commission. For example, it would be very interesting to Members of both Houses to know at what stage the commission are in their work. They have only published one occasional paper so far—working paper No. 1 of 1977 on “The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises”. That is an extremely important report which has very substantial implications. I would like to see the substance of that report debated in this House and, personally, I would like to see its recommendations implemented. Obviously I cannot go into detail on it now, on the Adjournment, but it is a very worthwhile report.

However, it is only one item in a very substantial programme of law reform. I would like to be able to ask to what extent the Law Reform Commission have contracted out work and research to other bodies as they are entitled to do under the terms of the Act. To what extent have they sought help from academics in the law schools or from other disciplines in the universities. To what extent have they made use of other research facilities in the country? It seems to me that if [905] the Law Reform Commission were not to produce substantial reports in the areas included in this programme, there is a danger that no law reform will take place in these areas. In that way the existence of the Law Reform Commission could delay the possibility of reform because it would be an excuse not to make progress in reforming the particular areas.

I was very disappointed to find that the term of appointment of one of the five commissioners had expired on 20th October, 1977 and was not renewed.

An Leas-Chathaoirleach:  I would like to remind the Senator that she may only discuss the laying of the report before the House.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  It is in the context of the absence of the laying of any annual report that I am refraining from going into the substance of the working paper that was published. So I am making real efforts to be good and I am not going to delay the House much further on the point. If an annual report had been laid we would have had an opportunity to comment on the fact that the mandate of one of the commissioners, Mrs. Helen Burke, was not renewed and that she was replaced by somebody from a very different background—a civil servant with legal training. The significance of this does not stem from the personalities involved, but from the fact that during the debate in the Seanad emphasis was stressed on the importance of including a non-lawyer on the Law Reform Commission—someone from a related discipline.

An Leas-Chathaoirleach:  I must again remind the Senator that she is outside the scope of the motion which is on the laying of the report before the House.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  I appreciate that it is your job to keep me within the terms of reference, and I am not going to make it more difficult. Nonetheless, the parliamentary intent was very clearly stated by the Attorney General in introducing the Bill in 1975 and by Senators in welcoming the terms of [906] the Bill. Members of the House made it clear what they felt was important and that the annual report of the Law Reform Commission would give an opportunity to comment on progress on law reform, priorities in law reform and in particular the area of family law reform which is so critical in Ireland at the moment. We are being deprived of this opportunity to contribute. Moreover, there is a danger that no other agency would be actively involved in law reform—be it the Department of Justice or another Department—so there is a potenial negative effect of establishing the Law Reform Commission unless they react very positively, get through their volume of work in a satisfactory way, and in particular discharge their responsibilities for that part of the programme which concerns family law reform. I regret that the individual member of the Law Reform Commission who had a particular contribution to make in that area was not reappointed.

I would like to ask the Parliamentary Secretary, to indicate when the first annual report of the Law Reform Commission will be laid before the Houses under section 6? Furthermore, would he ensure that in future years the annual report is laid within the calendar year so that the Houses are afforded an opportunity to examine progress and to make a constructive contribution to the work of the Law Reform Commission.

I repeat that the motivation behind this motion on the Adjournment is more to be supportive of the vital work the Law Reform Commission are doing than to criticise in a negative sense. The Seanad cannot be supportive of law reform if we do not have the opportunity in both Houses of examining progress to date and commenting on it.

Parliamentary Secretary to the Minister for Foreign Affairs (Mr. D. Andrews): Information on David Andrews  Zoom on David Andrews  I take the Senator's point. I accept the spirit in which she placed the motion before the Seanad. If I may deal with one point. She mentioned a member of the commission, Dr. Helen Burke. As I understand it, Dr. Burke, who gave inestimable service and who is a very highly respected person in [907] her own professional vocation, was a member of the commission for the full period of her appointment, namely, two years. The expiration of her period of appointment coincided with her appointment as a full-time statutory lecturer in University College, Dublin.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  As I understand it, she would have been willing to continue.

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  I do not have the background to that aspect readily available I understand that she would not have been able to give more than half the time she devoted to the commission as a part-time commissioner. She would understand the realities of that, having regard to the fact that the Senator said an awful lot of work would have to go into law reform and that the people who are giving such devoted service to it will have to give as much time as they physically can.

The Law Reform Commission were formally established on 20th October, 1975. They had no office until April, 1976. The first member of their professional staff joined the commission in July, 1976; the second member in October, 1976, and the third in January, 1977. Effectively they only commenced operation in April, 1976 and then on the very limited scale available to them in the absence of professional staff and in a building which has not yet been completed. Section 6 of the Act provides that as soon as may be at the end of each year the commission shall make a report to the Attorney General (a) of their activities during that year under section 4 of the Act and (b) of any preliminary working paper which was published by them during the year, (c) of any examination during the year of the legal system of a country other than the State, and (d) of the activities during the year of any working party or advisory committee established by them.

The commission did not in either 1975 and 1976 establish any working parties or advisory committees. They did not undertake the examination of [908] the legal system of any country other than the State, save in so far as, in the course of the work they did undertake, it was necessary to make certain inquiries from other States on particular points, the answers to many of which did not arrive until 1977. No preliminary working papers were published by the commission during the years 1975 or 1976.

In 1976 the commission spent some time in drawing up a programme for submission to the Government pursuant to section 4 (2) (a) of the Act. The study and choice of subjects for inclusion in that programme was a matter which in itself took some time and finally the programme was submitted, on 1st December, 1976, to the Government for approval. The programme, having been approved by the Government was laid before the Houses of the Oireachtas on 4th January, 1977.

The programme, as well as setting out the matter which the commission propose to deal with as part of their programme, also referred to matters which had been submitted to them by the Attorney General, pursuant to section 4 (2) (c) of the Act. These latter matters are referred to at page 4 of the programme, the first two of which were submitted by the Attorney General to the commission on 23rd December, 1975, and the other two on 26th August, 1976.

The first of these subjects—the law relating to the age of majority— required a great deal of research and study and the working paper on the same is now with the printers and will be published within the next week or so. The second subject—the law relating to the domicile of married women—required a very considerable degree of research and a draft working paper on that subject has already been prepared but is currently being reviewed by the commission and should be published in the near future. It might be added that this particular subject is an extremely complex one and will affect not simply married women only but also must necessarily relate to the domicile of children and husbands and to the question of whether the concept of domicile as [909] such should be retained or should have some other concept substituted as a connecting factor in conflicts of laws.

Items 3 and 4—the prohibited degrees of relationship in the law of marriage, and the application of foreign law in cases in which the courts of this country have jurisdiction to grant a decree of nullity of marriage —are to be taken together with the examination of the law of nullity which was referred to the commission by the Attorney General on 24th August, 1977.

In regard to the subjects contained in their programme, the commission have already published a working paper on the law relating to the liability of builders, vendors and lessors for the quality and fitness of premises and this paper was completed for publication on 22nd June, 1977, and was published within a matter of two or three weeks afterwords. Each Member of the Oireachtas has already received a copy of this paper. Also in pursuance of their programme, the commission have completed a working paper upon the civil liability for animals which is also with the printers at the moment and should be available for distribution early in January.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  Are the recommendations of the first working paper acceptable to the Government?

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  I am not privy to that, so consequently I cannot answer that question.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Family pets before family law.

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  The question might be raised by the Senator some time next week and I hope to have the information for her then. As the First Programme of the Law Reform Commission was laid before both Houses of the Oireachtas on 4th January, 1977, every Member of the Oireachtas was thereby informed of the programme of the commission and of the matters which had been referred to them specifically by the Attorney General.

[910] Nineteen seventy-seven has effectively been the first full working year of the commission and the report for 1977 which will be published early in 1978 will deal not merely with the work which has been carried out in 1977 but will also give an account of the activities of the commission prior to that year. For the reasons stated there was really nothing concrete to report in respect of 1975 or 1976——

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  It is just as important to report that there was nothing concrete to report, both in 1975 and 1976.

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  That is what I am doing. Arising out of what the Senator said I am reporting——

An Leas-Chathaoirleach:  The Parliamentary Secretary to continue without interruption, please.

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  I am reporting to the Senator that there was nothing to report in 1975 or 1976——

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  They should have reported that.

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  ——and it is considered that the end of the first complete working year is the most appropriate time to publish the first statutory report. I would just like to put on the record of the House again, for the benefit of the Senator who has an interest in this matter, a list of matters referred by the Attorney General to the Law Reform Commission under section 4 (2) (c) of the Law Reform Commission Act, 1975—this is the Act that set up the Law Reform Commission—to conduct research and, if thought fit, to formulate proposals for the reform and submit them to the Attorney General—they are independent of the commission's own programme of law reform: first, date of reference, 3rd December, 1975, subject: the law relating to the age of majority; second, date of reference, 3rd December, 1975, subject: the law relating to the domicile of married women; third, date of reference, 26th August, 1976, subject: the prohibited degrees of relationship in the law of [911] marriage; fourth, date of reference, 26th August, 1976, subject: the application of foreign law in cases in which the courts of this country have jurisdiction to grant the degree of nullity of marriage; and fifth, date of reference, 24th August, 1977, subject: law relating to nullity of marriage.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  May I ask the Parliamentary Secretary——

An Leas-Chathaoirleach:  The Chair cannot allow any further discussion.

[912]Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  ——a simple question about contracting out work. Has the Law Reform Commission contracted out work?

An Leas-Chathaoirleach:  I must inform the Senator that further discussion cannot be allowed.

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  The answer to the Senator's question is no.

The Seanad adjourned at 5 p.m. until 2.30 p.m. on Wednesday, 14th December, 1977.


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