Oireachtas Joint and Select Committees
Wednesday, 25 September 2013
Joint Oireachtas Committee on Justice, Defence and Equality
Fourth Programme of Law Reform: Discussion with Law Reform Commission
From the Law Reform Commission we are joined by Mr. Justice John Quirke, president, Ms Finola Flanagan, Ms Marie Baker, Mr. Donncha O'Connell, Mr. Tom O'Malley and Mr. Ray Byrne. They are all very welcome. They have come before us to outline the draft fourth programme of law reform which the commission intends to undertake in 2014 and 2015. The work of the commission is very useful and important.
Before commencing, I draw the witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by it to cease giving evidence on a particular subject and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against an individual or an entity either by name or in such a way as to make him, her or it identifiable.
Members should also be aware that under the salient rulings of the Chair, they should not comment on, make charges against or criticise a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I invite Mr. Justice Quirke to make his opening statement.
Mr. Justice John Quirke:
Thank you Chairman for the invitation to appear before the committee. We are very glad to have this opportunity to discuss our proposed fourth programme and to outline why we have made these particular recommendations.
As the committee is aware, the commission was established with the remit, among other things, “to keep the law under review and undertake examinations and conduct research with a view to reforming the law”. The commission must “formulate proposals for reforming the law”. The committee is probably aware that we are now at an advanced stage in the completion of our third programme of law reform which comprised 37 separate projects, which is a very large number of projects. It was approved by the Government in 2008 and was to be completed by the end of 2014. Nine of the original 37 projects have been overtaken by events, by which we mean there has been an investigation of the topic by some other group or some matters may have been resolved by the enactment of legislation. At present we expect to have completed all of the projects, other than those which have been overtaken by events, by the end of this year. We have also undertaken three projects as a result of requests which are references from the Attorney General under the terms of section 4(2)(c) of the Act.
Incidentally, the three projects that were referred to us concerned the civil liability of good samaritans and volunteers, mandatory sentences and the report on intercountry adoptions and we have reported on all three. I should indicate this particular commission was only appointed last year and is less than 12 months old. In the course of the past 12 months, we have completed and published a final report on missing persons at which the Chairman was present and he kindly presided at that launch. In addition, we have published and launched another report on the law relating to juries, as well as our report on mandatory sentences earlier this year. Moreover, we expect to publish final reports on the remaining third programme projects before the end of this year. They will concern warrants, that is, bench warrants and search warrants, evidence, which will include separate details on hearsay, expert and documentary evidence, sexual offences and capacity to consent and insurance contracts. These will comprise a further four reports that we intend to launch and publish this year.
As I stated, the commission in its entirety was only appointed less than 12 months ago and we have been appointed for a term of three years from mid-2012. We therefore decided to recommend to the joint committee and to the Government a short and focused fourth programme that we hope will be capable of completion within the remaining two years of our term of office - as we have only two years left. While this may be somewhat ambitious, I will come to that, one reason we are recommending 11 projects is because at present, in any event, we see the commission with only two years remaining in its term of office. Consequently, we intend to change things slightly and have a short and focused programme. I acknowledge that 11 projects in a two-year or even in a three-year period is a substantial task and it may not be possible to complete it in that time. However, that is the reason we are recommending 11 projects. We want to do it, we want to do it properly and we want to do it in a focused manner.
Our recommendations result from consideration of submissions and ideas received during a wide-ranging consultation process. In fact, it includes proposals from the commissioners themselves as well. In October 2012, we sent letters to Departments, NGOs, other public interest groups and the public at large, inviting them to make suggestions for the reform of the law. That was the commencement of our project for the preparation of our proposed fourth programme. We held a number of public consultations designed to provide the widest possible opportunity for all interested parties to engage in the law reform process and to suggest areas of law they thought required to be reformed and we received a very large number of suggestions. We had more than 200 written submissions and suggestions although many of them overlapped, which is to say the same or a similar, almost identical, project was suggested by another party. When we whittled that down, as it were, we found ourselves with 69 viable projects we thought really deserved careful consideration. We then had our first public consultation and we devoted our annual conference in Dublin last December to that. That particular conference focused on the fourth programme with particular reference to the then and current economic and fiscal crisis, codification of our laws and the commission's role in criminal law, civil law and laws relating to ethical, moral and philosophical matters. We invited a number of eminent and helpful speakers to address the conference and invited anyone to participate who would do so, including all the interested parties who had shown an interest. We had other consultations and in particular, we had a public consultation in NUI Galway in February 2013. We met representatives of the Department of Justice and Equality in December 2012 and met representatives of the Irish Criminal Bar Association in March 2013. We then engaged in a process of reducing our 69 proposals to the type of programme we felt we could complete. We did this with a shortlisting measure, that is, through various shortlists that we repeatedly reduced until eventually, we identified 11 areas of law as being particularly in need of consideration. We submitted these proposed projects to the Attorney General earlier this year and are now placing them before the joint committee for its consideration.
Like every other institution of whatever kind within the State at present, the commission must now operate with greatly reduced financial and human resources and our budget has been reduced by approximately 35%. We understand that fully and are managing that. We have given careful thought to this fact and in light of that, it is our intention to keep our various projects and our methodology under constant review in order that neither the commission's productivity nor the quality of its work will suffer. Our traditional approach has been to publish, in respect of each project, a consultation paper that invites submissions upon the provisional recommendations that are contained within that consultation paper. It usually takes approximately one year to publish this and under this traditional method, we can ask for submissions based on those provisional recommendations. That then is followed by a report with final recommendations and as I stated, usually there is at least a year between the publication of the consultation paper and the final report.
At present, we are developing working methods to ensure that each project is dealt with discretely in a way that is appropriate to that individual project. Some projects may be more amenable to the earlier production of discrete issue papers. I mean by this that after an investigation, we can discover there are particular issues relating to a particular topic that are becoming highly significant, are attracting significant attention and need to be addressed. We already have started to publish issue papers and to send such papers to interested parties and to make them available to the public on our website. This indicates that these are issues within this particular project that are attracting attention and which we are considering carefully and are matters on which we would like to have the views of the interested parties and members of the public.
This is a change, to some extent, in our methodology, which will fit into some particular projects because some projects hopefully will be bigger than others and some may be relatively discrete. Moreover, we intend to send out, as we have done successfully in the past, issue papers and to ask for comments, observations on submissions. This is a change in our methodology and we intend to continue to look at methods and ways in which we can change. In respect of the aforementioned issue papers, I should indicate that we already have published two such issue papers in two of the third programme projects already. One was on the law of evidence, the other was on domestic violence and the results in that regard were encouraging. Consequently, we intend to adopt a highly flexible approach to the presentation of projects included in the fourth programme in order that the format of each project can be individually tailored to the subject matter of the project.
The word "reform" of the law, for the purposes of the commission's function, is defined in section 1 of our establishing Act as including "its codification (including in particular its simplification and modernisation) and the revision and consolidation of statute law". It is true to state that comparatively ready access to our law reform is part of what I believe is described therein as "simplification and modernisation". For that reason, and as part of its general statutory mandate to keep the law under review, the commission presently maintains three ongoing and highly important accessibility projects as part of its core activity. These projects are first, a legislation directory, which is a searchable guide to amendments made to Acts and a publicly-available database, which is available online and is maintained on an ongoing basis by the commission. The directory documents all of the amendments to primary legislation made since 1922 and is an important and perhaps essential source of information for legal professionals, legislators and indeed laypersons or any person who so wishes.
I intend to return to the subject of access to law.
The ongoing maintenance of the directory assists the commission's work on the second accessibility project, which is what we call the statute law restatement project. This provides administrative consolidation of the Acts, resulting in what are called restatements or revised Acts. The process makes it easier to see the up-to-date text of the law. It brings together in a single text all the amendments and changes made to individual statutes. It is an ongoing and helpful service, which is also available on the commission's website.
Third, we maintain as a project the classified list of Acts in force in Ireland. There are over 2,000 Acts classified within the list under 36 subject headings. Each Act is linked to its relevant Department. The project supplements and complements the others but does not necessarily provide the sort of access to law that we believe is necessary.
As stated, an establishing Act requires us to seek to provide for codification in addition to simplification and modernisation. Codification is a topic that was discussed during our annual conference last year, notably by Mr. Justice Gerard Hogan. Very few people would deny that the codification of our laws and their consequently greater accessibility to all citizens is a very desirable objective. Very few would deny, however, that the achievement of that objective could take decades, even with the application of very great resources. The reality is that the ordinary man or woman on the street simply believes that our laws are incomprehensible because, understandably, he or she cannot access them. This is a perfectly reasonable position. The commission should take responsibility for making our laws accessible. It is an enormous project and would require enormous financial resources. We know that. It would require considerable time. As indicated, it could take up to a century, but it would certainly take decades and considerable resources. However, that does not mean we should not start. We believe we have started to some extent but that we need to do so in a careful way that makes the law genuinely accessible. We should proceed on a stage-by-stage basis. The fact that our laws are not accessible does not preclude us from investigating whether and how we can commence an accessibility project on legislation. Members may note that our 11th project operates very much on that basis.
I do not know whether the Chairman would like me to go through the various projects one by one.
Mr. Justice John Quirke:
If I may, I will call on my colleague to assist me in regard to each project. The first project we are recommending concerns corporate offences and regulatory enforcement. Members will not be surprised by the inclusion of this project within our proposed programme. The issues of corporate offences and enforcement were given considerable attention during our annual conference. That resulted, of course, from the events of recent years.
In the expectation that this may form part of our programme, which expectation I hope is not misplaced, we have taken the liberty of doing a certain amount of research on this matter. We believe, in the first instance, that it is necessary for us to examine our existing laws on the commission of offences, particularly criminal offences, that relate to corporate misconduct or inappropriate corporate behaviour. For that purpose, we suggest we should examine our existing laws, such as they are, to determine whether they are sufficient and adequate. If they are not, we suggest that we should investigate methods by which they can be improved. Alternatively, new laws might need to be enacted to ensure that what has occurred will not recur.
We will be considering the question of corporate criminal offences. For that purpose, we anticipate international consultation with other common law countries, EU countries and the United States, where we believe there is experience. We can give members some information on the position in our neighbouring jurisdiction, which has had similar difficulties. We know there are laws in Australia covering offences that have not been enacted in this jurisdiction or the United Kingdom. I refer in particular to section 184 of the Australian Corporations Act. We can discover whether that has been successful. We note that the authorities in New Zealand do not intend to enact similar legislation, and we need to find out why.
There is a large range of white-collar criminal offences in the statute books in various parts of the United States and there are federal offences. We would like to investigate whether these particular offences are effective in regard to the appropriate conduct of corporate law. We intend to examine this in considerable detail. We will also examine the question of deferred prosecution agreements, which the members may know about. They are in force in parts of the United States. The Federal Government of the United States operates with reference to that particular mechanism, which indicates that a party that has engaged in inappropriate corporate conduct may be prosecuted. The prosecution may be deferred if the party under investigation co-operates with the prosecuting authority, is of assistance and, perhaps, co-operates with regard to information concerning other potential prosecutions. At the conclusion of that process, the party concerned may have the prosecution deferred, dependent upon the nature and level of co-operation provided to the state. We have considered this type of system and would like to do so more carefully. We believe, in a very preliminary manner, that if it were to be adopted in this jurisdiction, it would certainly require significant judicial oversight, for all sorts of reasons with which members will probably be familiar.
I am very much summarising what we are doing and what we intend to examine. We will examine whether corporate offences of a criminal nature are in existence in our jurisdiction. We know, for instance, that there is no offence of reckless trading and we will examine whether there should be. We will examine what sorts of offences are in force in other jurisdictions and whether we should enact legislation that would make certain conduct a criminal offence. We will examine other types of remedy, such as deferred prosecution agreements. That is the first part.
The second part we would like to look at is the question of regulation. In that respect, we had some assistance during our conference in December from the Office of the Director of Corporate Enforcement, and also from the then regulator, Mr. Matthew Elderfield. We believe that the whole question of the regulation of banking and financial institutions, and corporations generally, needs to be considered and investigated to see if it is adequate. Mr. Elderfield was certainly of the view that administrative sanctions of one kind or another could be helpful in some circumstances and perhaps more appropriate and useful than criminal sanctions in the sense that they could be more readily dealt with. They might not be as difficult to prove and might be less expensive than a full criminal prosecution. In that respect, we are talking about potential financial penalties and reputational sanctions in what is known as naming and shaming, and also what is called the identification principle. We can consider sanctions of that kind, which may or not have potential drawbacks or questions associated with them. However, we would like to examine whether regulation of financial institutions and corporations generally could be improved by whatever methods, including the enactment of corporate powers for regulators to impose administrative sanctions.
The third part of this project is an examination of whether regulators generally should be provided with powers of a particular kind. By that we mean not just regulators dealing with financial institutions, banks or corporations but also the Medicines Board, the Commission for Energy Regulation and all sorts of other regulators. We must examine whether it is feasible, possible or desirable to enact legislation which would confer particular powers upon all sorts of regulators - possibly identified regulators, but a large number. As far as I am aware, the only regulators who have the power to impose administrative sanctions are the Central Bank and the Revenue Commissioners. Other regulators do have different types of powers but not the power to impose administrative sanctions.
Those are the three limbs of the project. I am explaining this in a general fashion and am open to correction by my colleagues if I have misstated anything, but that is roughly what we are examining as regards that particular project. Does the Chairman wish me to continue?
Yes, if members of the joint committee are happy with that. Perhaps Mr. Justice Quirke can give us a brief overview of what they are. I hope there are others out in media-land listening to this because it is important. We want to get it on the record.
Mr. Justice John Quirke:
The second question is one with which most members of the committee will be familiar - it concerns disclosure and discovery in criminal cases. Commissioner O'Malley will be of considerable assistance on this. Disclosure and discovery in criminal cases is quite a delicate matter. Accused persons in criminal cases are facing the loss of liberty. Prima facie, they are and should be entitled to any documents which are relevant to the matters which may result in their incarceration and loss of liberty. That proposition sounds straightforward enough but there are difficulties, including questions of privacy, personal health and children. I will ask Commissioner O'Malley to give the committee further assistance on this.
Mr. Tom O'Malley:
Essentially, when it comes to an ordinary criminal case the Director of Public Prosecutions is obliged - as a matter of law and, perhaps, as a matter of constitutional law - to hand over to the defence all relevant material in their possession. That is uncontroversial. The issue that arises here, and the reason we have put it on our agenda, is that for the past decade or more a problem has arisen - not exclusively, but in particular - whereby somebody who is charged with a sexual offence perhaps against a child, or a person who was a child many years ago when the offence was allegedly committed, may seek discovery of material relating to the complainant which is not in the possession of the DPP but is in the possession of a health board, a doctor, a rape crisis centre or a counsellor. As Mr. Justice Quirke has said, it is a sensitive issue because there are a number of competing interests at stake. There is the right of the accused person to a fair trial, which would point to the discovery or disclosure of the material. However, the material which they are seeking to have disclosed will often be of a deeply personal and private nature. There may be content in that material which is not strictly relevant or necessary.
This is something that the High Court and the Supreme Court have almost had the opportunity to deal with on several occasions over the past decade. It always so happened, however, that some settlement was reached prior to the date on which the case was due to be heard. The last occasion was a case that came before the Supreme Court a few years ago involving this kind of issue, as it happens in a manslaughter case, but the matter was settled.
The reason we think this is something that would be uniquely suited to being considered by the Law Reform Commission - and I gather the Department of Justice and Equality may also be considering it - is that there are so many different constituencies that need to be heard. They include, for example, people in the medical, caring and legal professions as well as victim support groups. All their voices need to be heard. There are a few useful models from Canada, Australia and elsewhere which are probably quite readily adaptable in this country but it is just a question of deciding which one is the best.
Mr. Justice John Quirke:
As regards that project, the Department of Justice and Equality may be considering something. We will keep in contact with that Department which intends to do something on that matter also. We can assure the joint committee that we will liaise at all times with the Department.
I thank Mr. Justice Quirke and Mr. O'Malley for their presentations. On foot of a recent Seanad debate on this issue, the Minister for Justice and Equality indicated to myself and Senator Jillian van Turnhout that the Department is undertaking an active review of this area. It is conscious of the need for reform and the rape crisis centres have also been pressing for this. There is a protocol currently in place between the DPP's office and rape crisis centres.
Mr. Tom O'Malley:
It is between the HSE and the DPP's office. There may be one with the Rape Crisis Centre as well, but I am not sure. At the annual conference last year it was announced that a protocol had been agreed between the HSE and the DPP. The general feeling from the conference floor was that it was no substitute for legislation.
Mr. Justice John Quirke:
Yes. As regards No. 3 we have a similar situation in the sense that something is being done elsewhere about this. We are talking about sexual offences against children in which there has been a huge amount of interest. We have been asked by quite a number of people to deal with it but we will have to liaise. I will now hand over to Mr. O'Malley again.
Mr. Tom O'Malley:
Ideally, we need a comprehensive review of sexual offences generally within the country. Most of the legislation we now have resulted from recommendations made by the Law Reform Commission in the late 1980s and early 1990s. It was very good legislation in its day and some of it still is.
It has become something of a patchwork. That is one area in which people deserve clarity and consistency in the legislation. We have reason to believe there is an overall review of this area going on in the Department of Justice and Equality. There are certain gaps in the sexual offences area, particularly for those against children. For example, we still do not have an offence of child sexual abuse. When there is an allegation of sexual abuse, the Director of Public Prosecutions, DPP, has to rely on certain specific offences like rape, sexual assault or incest. Sometimes there can be gaps in these areas. We need to identify the gaps. There are certain offences under the Children Act which fill in these gaps.
There is also the whole area of trial procedures and how children should be dealt with when they are appearing as witnesses. This is an area in which there has been a significant amount of research and developments by psychologists and those who work in the field of child care. These have given tremendous insights into the kind of issues that arise, for example, what is the best way to question a child to elicit the truth.
There is a review of the sex offences legislation going on in the Department of Justice and Equality. The legislative programme also contains proposals for a Bill with a general review of sex offences to be published in 2014. I know the Minister has been promising that for some time, so it may slip again. Has the Law Reform Commission a specific mechanism for ensuring the work it does gets fed into the departmental review process?
It would seem a shame that there would be duplication. The Minister has said on several occasions that he hopes the review will lead to legislation next year. He has told this committee that he hopes it will be a comprehensive codifying sex offence statute.
There are 11 projects, each one very important. How will the commission decide which ones to prioritise? In the area of corporate enforcement, the question arises as to who regulates the regulators. For example, we are cognisant that government needs to be separate from corporate regulation. However, sometimes one can want regulation and regulatory investigations to go a bit faster.
Mr. Justice John Quirke:
We will be conducting an overview of the development of regulation in the 20th century. For the first half of the century much of the regulation in corporate affairs was dealt with by corporatism while in the second half of the century it tended to be influenced by social partnership. We will also examine how it has been influenced by recent domestic and international events. This will also take into account who regulates the regulator.
All of the 11 projects will be started immediately. We have a significant number of researchers and we will not be giving priority to any particular project.
Ms Finola Flanagan:
We have a limited number of researchers working with us but we will try and move all the projects along together. If it were indicated to us that the results of a particular project were required urgently, it would be prioritised. If the Department was doing work in a same area, we would ensure there would be no duplication. We have started scoping the first project and I assume we will move with that one quickly.
Mr. Justice John Quirke:
The commission believes the offence of contempt of court requires serious attention. The Law Reform Commission published a paper in 1994 on this area but nothing has been done on it. The problem is that there is considerable confusion about the two types of contempt of court, civil and criminal. There is one being punitive in nature and the other being an attempt to be coercive. Recent matters have highlighted this problem. The Supreme Court has indicated that there is confusion in this area and a necessity to look at providing statutory assistance to it. We also have to take into account principles that the European Court of Human Rights has set down in this area and we need to conform to these.
The 1994 commission paper will not be of much assistance because so much has happened since then. We will examine the whole area again as well as issues such as embracery - that is interfering with jurors - and scandalising the court.
Members will see them there. It is simply to bring them into the 21st century. We think we need to deal with that. I doubt that we will receive much opposition in respect of that and many people have complained about it. It is important we have clarity about it.
Mr. Tom O'Malley:
Again, we hope this would be a reasonably short project. The reason we put it on the agenda is because in 2006 for the first very time in this country, the suspended sentence was given a statutory foundation. Everybody here knows that a suspended sentence is where a court imposes a term of imprisonment but suspends it for a certain period of time and the sentence will not then be enforced if the person keeps the conditions imposed on them during that period. It has been in existence for well over a century but it was given a statutory foundation in 2006 in section 99, which is now rather infamous because it has caused an enormous amount of legal problems in terms of the detail of its implementation and has constantly been the subject of judicial reviews in the courts. Therefore, we thought it would be a good idea to look at the suspended sentence to review the way in which section 99 has operated and to deal with any outstanding aspects.
Again, I am speaking off the cuff but no more than previous stories, it is fair to say that perhaps the Department, the Director of Public Prosecutions and other State offices might already be looking at the technical side of this. They were of the view that if they were to do that, there was still useful work for us to do in this regard by, for example, producing a report, which will be a short one, on the principles that should govern the use of the suspended sentence such as when it is appropriate for a court to use a suspended sentence. It will produce general guidelines on the circumstances in which it might be appropriate to use it. That is probably where it will go.
It was really helpful of Mr. O'Malley to set that out. As he says, looking at this from a more theoretical perspective is long overdue in addition to the practical problems that have arisen with section 99. Last year, this committee produced a report on penal reform, looked at some aspects of sentencing and suggested law reforms through statute. Again, the Minister has the working group on penal reform. I will send Mr. O'Malley a copy of our brief report because there are some proposals in it that might be of use in formulating the commission's report on suspended sentences.
Mr. Tom O'Malley:
I should mention that one of the very valuable innovations over recent years has been within the Courts Service on the initiative of the current Chief Justice called the Irish Sentencing Information System, ISIS. Even though it is starved of funds like everything else, it is very promising in terms of the amount of information it is making publicly available about sentencing. We hope that all this would feed into the overall ISIS project.
Mr. Justice John Quirke:
We have one view, which is that we do not want to confuse it with the wider question of incitement to hatred. We think that is a very difficult project that is far too wide-ranging and has run into difficulty in other jurisdictions because of its nature and extent. We think this should be confined literally to cyberbullying via communications of this kind. As the Chairman has indicated, there is significant interest in and concern about the need to deal with it. Even on its own, it will be a difficult project with international implications. Some of the issues include the nature and feasibility of enforcement and the extent of it. We believe it must be addressed because it is such a significant matter, but we think it needs to be confined within the cyber area, if that is coherent, which it probably is not.
Mr. Justice John Quirke:
It is anything communicated by technology, be it on a telephone or computer. It is technologically transmitted. We should do this rather than going into the wider question of incitement of one kind or another or hate offences, because they are enormously wide and difficult to prove. That has been established elsewhere. If we went into all of that, it would probably not be feasible and would be enormous. There have been difficulties in the UK where they have had to reduce it but still cannot do so. We think that if we can do it at all, it will be difficult, but it should be restricted to the question of offences committed through the use of technology. By that and being careful to indicate what they are, I mean offences affecting personal safety, privacy and reputation. It relates to anyone who, through the use of technology, causes harm to the personal safety, privacy and reputation of another person.
As the Chairman says, it is very timely for us to be talking about that because we hear so much about the bullying of children and teenagers on social media which, regrettably, has caused many of them to take their own lives, which is tragic. On the other hand, one has the more subtle bullying of politicians on the Internet, including Facebook. Mr. Justice Quirke mentioned incitement to hatred and privacy. A certain group advertised a protest outside my home a few weeks ago. We all get protests outside our constituency offices, which is fine and with which I have no problem. However, for a group of people to come along with megaphones was an infringement of my privacy and that of neighbours. They advertised it on social media and I think that is a step too far. I would imagine it would be very hard to make recommendations for legislation.
Mr. Justice John Quirke:
Other people have asked us to consider the question of incitement of the kind spoken about by the Deputy relating to people in housing estates and inciting hatred against one particular group or family. We thought that would require a separate project if we were to do it because the question of incitement is very difficult. We thought the only way we could handle it would be by restricting it to doing so through the use of technology. If, in the circumstances described by the Deputy, other persons were contacted by means of technology and asked to turn up at the Deputy's house, perhaps they might be subject to a law of that kind.
There is no doubt that it may be necessary for us or someone else to address the question of people inciting others to intimidate other citizens, but we do not think we can do both in the same project. We have considered it very carefully. We tried to do it that way and at one point considered it to be a project that should encompass both. However, we came to the conclusion after much discussion that we could not do both. We had to do them separately.
Ms Finola Flanagan:
In the context of domestic violence, we are examining the question of harassment under section 10 of the Non-Fatal Offences Against the Person Act for the Department of Justice and Equality. One of the things we will examine is whether cyber harassment might be comprehended in that section. There have been calls for explicit legislation in this area. so we will examine that. It is not quite cybercrime, but it is cybercrime affecting personal safety, privacy and reputation. We think that is a sufficiently discrete area on which we can produce something and, one hopes, in a reasonable time.
Cyberbullying is such a huge area. I put in something short about cybercrime generally. Will the programme focus not only on the substantive offences and sanctions but on mechanisms for enforcement? The focus of the British Government on cybercrime is whether action can be taken. It is a hybrid of civil and criminal law against the Internet service providers. Some of this must be done at EU level or beyond at transnational level. Will that be in the scope of the study?
This is huge and has implications for the media as well, so it is very important and is up to date. One of the first Bills I dealt with here was the Copyright Bill 2000. The preceding Act had been enacted in 1963, when people were worried about the impact of the advent of television. In 2000, we were worried about the advent of the Internet, but now we have gone way beyond that. It is developing as we speak and getting increasingly invasive. We will move on to aspects of succession law.
Ms Marie Baker:
We thought of this as being a relatively short report. A number of discrete issues seem to have been identified in the context of the Succession Act 1965. The general view is that it works reasonably well, but in the recent past, a number of discrete issues have been raised in litigation. One arose in the context of what should happen to jointly owned property, property held under joint tenancies, when the co-owner has unlawfully killed his or her co-owner. There is a decision of Miss Justice Mary Laffoy to the effect that the co-ownership rights, being property rights or whatever, would continue notwithstanding the unlawful killing but that there would be deemed by the court to be a constructive trust for one half share. It is a very technical, complex question which raises questions of property rights, the meaning of joint tenancy, the meaning of succession etc. It would be a discrete question. Miss Justice Laffoy, in the course of her judgement, identified the need for clarity in the legislation as to what should happen and we had a number of requests on that topic, so it seems worthwhile to include it in a review of the Succession Act. It is not proposed that the entire succession scheme be reviewed but that a number of issues be identified.
Another anomalous situation was identified recently in another case, namely, the admissibility of a conviction of murder regarding an application under section 120 of the Succession Act which allows the court to declare somebody to be unworthy to succeed. One kills one's spouse, one is convicted of murder or manslaughter, but one is not necessarily excluded from inheritance on intestacy or under intestate succession. Section 120 of the Act has four or five subsections. Mr. Justice Nicholas Kearns recently identified a difference in the wording between subsections (1) and (4) as giving rise to this problem. Is the conviction admissible in a civil trial? Is it hearsay evidence? Clearly, it is. Is it admissible? What weight is to be given to it? Is it to be conclusive evidence of the fact of unlawful killing or prima facie evidence? Can one re-try the question again? That is a fairly discrete issue but seems to deserve some inquiry and we would not think of it as taking a very long time.
Those two issues arose from particular cases where the points were raised by the courts, but another issue arose in the context of our consultation process. Section 117 of the Succession Act allows the child of a testator to come to court to seek provision to be made. If it can be shown that proper provision was not made for the child, the court can make proper provision and the court is at large as to how it makes that provision. The original 1960 Act provided for a 12 month time limit, but that was reduced in 1995 to six months and there is no availability under the legislation for an extension of time. In the UK, there is the possibility of applying to the court in exceptional circumstances for an extension of time.
A number of persons who wrote to us following our consultation process suggested that perhaps that was harsh and needed to be examined to determine whether there are circumstances where the court could grant an extension of time. A period of six months is very short. The legislation was designed to ensure an estate can be administered with due expedition. We do not want people coming back ten years later, but perhaps six months might cause some harshness or unfair results in certain circumstances.
Another interesting and perhaps discrete question that was identified by somebody who wrote to us was an issue that has arisen following the enactment of the civil partnership legislation. On the death intestate of a married person, the children automatically receive one third, but on the death intestate of a civil partner, the child of the civil partner may seek more and may go to court for a declaration for whatever percentage the court decides is appropriate. A number of people who wrote in suggested to us that this perhaps creates an anomalous distinction. It may or may not be a deliberate distinction that deserves to be drawn but it certainly bears examining. We thought of the Succession Act project as comprising relatively discrete topics, but this legislation is almost 50 years old. Some examination of it would not go astray and there were a number of requests from members of the legal profession on issues that arose.
Ms Marie Baker:
This is boring. I never took account of this, but we had a number of requests for clarification on the compulsory purchase legislation. This legislation is almost 200 years old. The primary legislation dates from 1845. Compulsory purchase of land arises in the context of roads, ESB, railways and service providers of all sorts. A number of local authorities wrote to us. The legislation is exceedingly difficult. It uses very outmoded language.
I am not even going to outline the words in it. It identifies different legislation and different start dates for valuation. Different legislation identifies different measures of compensation and there were requests from a number of bodies that this be looked at. If nothing else, it would be worthwhile to prepare a list of the statutes to consider whether one set of rules should apply and whether the language of injurious affection and the other heads of damage deserve to be brought into the 21st century. This is dull but important.
This is not dull at all. This is an area in which any Member would be interested. There was an issue in my own constituency, which I raised at the Committee of Public Accounts when I was a member, regarding the acquisition of land through CPO by the local authority. Contracts were signed in the first few weeks but because of debt, disputes about who owned the land and this, that and the other, it took approximately five years for the local authority to pay the price agreed for the land, which had been agreed during the Celtic tiger era. The price was €3.5 million but this went to arbitration because the land was only worth €350,000 at that stage. I raised this with officials from the Department of the Environment, Community and Local Government when they appeared before the Committee of Public Accounts and I was told this was a case of swings and roundabouts and it could have been the other way round. I urged at the time that the legislation be reviewed and I am not surprised that many local authorities have been in touch with the commission. There has to be leeway or some way to address this valuation issue.
Ms Marie Baker:
And interest in many cases. The circumstances of the initiating notice is the crystallising date for valuation and this gives rise in the example given by the Deputy to a situation where a hearing before an arbitrator can take days because there are many valuers giving different views. The valuers, with hindsight, can say it was not worth that at all and it was an illusory price, while the valuer giving evidence on behalf of the landowner will say that the price agreed was what they would have got on the day.
Mr. Justice John Quirke:
This is another area about which we received a large number of submissions. There were a diverse number of requests dealing with, particularly, whether there should be a distinction between people who want to remain as long-term tenants and others who want to be limited in the term of their tenancy; how mechanisms for owners to recover possession of premises should be arrived at; a variety of questions on landlord and tenants generally; and the question of whether amendments should made to the legislation covering the agency. I am not fully familiar with all this and I will hand over to Ms Baker.
Ms Marie Baker:
There were many questions in this area. Since 2004, there has been a separate scheme for residential tenancies and a Bill has been published regarding the general creation of the landlord and tenant relationship and certain arrangements for commercial tenants. We had many questions, some of which were almost philosophical. In other words, should we as a nation consider long-term tenure for residential tenancies? There were more discrete questions as to whether the means of gaining possession of land are sufficiently user friendly. They are too complex, as there are too many forms of action.
We are aware that legislation has been published and work is being done by the Department but we thought, having regard to the fact that there were so many requests for consideration of landlord and tenant issues, it was a topic worth considering to feed in perhaps to the work being done in the Department. We have a number of discrete questions.
Mr. Justice John Quirke:
There is the question of renewal of leases and whether tenants should have the right to renew and in what circumstances that should be looked at again. The general view is that the earlier legislation is now out of date and out of kilter with current circumstances both in the property market and the economic climate. Is the Private Residential Tenancies Board, PRTB, adequate? It is a diverse area but because there is so much interest, we thought we had better look at it. Other questions include: whether the mechanisms for owners to recover possession are sufficient; classification of tenancies - should there be a distinction between people who wish to remain long term and others; funding of public services to the property and maintaining the property and its environment; provision regarding deposit arrangement, including the purpose, use and repayment of the deposit; landlord and tenant ground rents; discrimination between local authority tenants and private law tenants; issues under section 62 of the Housing Act; the amendment of section 17 of the Statute of Limitations arising out of the decision which held that a periodic tenancy ranks as a lease for the purposes of the 1957 statute; and a look at the 2006 Law Commission of England and Wales report on "renting homes". That is wide ranging and not compact but we thought we should have a look at landlord and tenant law generally having regard to the consideration questions and almost demands that we do so again.
One of the issues that comes up from time to time is neighbours from hell who are renting privately. Even the PRTB is having problems dealing with that. If somebody complains that the person next door is the neighbour from hell, the landlord has a problem but how can that be dealt with? The criminal justice system has issues with this as well. It can make life miserable for those who behave responsibly. There are no questions on this.
The next section is on domestic implementation of international obligations.
Mr. Donncha O'Connell:
Interest was expressed both by Departments and non-governmental organisations in this area. Under the Constitution, international obligations or international instruments do not form part of domestic law unless it is determined by the Oireachtas that they do but there are many ways of implementing international obligations into domestic law. This project will not result in a report but a discussion document to be descriptive in the sense that it will outline the different ways of implementing, incorporating or transposing international obligations, including those that might be taken on by the EU and, therefore, have consequential implementation questions for Ireland.
We would like it to provide an inventory of the different methods of implementation or transposition available to the Oireachtas. We would like it to be evaluative in the sense that it will evaluate the different models and methodologies of implementing international law domestically and, perhaps more importantly for a forum like this, we would like it to be useful so that this kind of discussion document can present to Members of Parliament the variety of ways of doing that. It will not advocate a position. It will not be about trying to displace domestic law or arguing that domestic law is in some sense inferior to international law. In fact, it is far more about constructively getting our domestic system of municipal law as provided for in the Constitution to dialogue more effectively with the international obligations the State takes on in the exercise of its sovereignty.
I thank Mr. O'Connell. Looking at this area is a huge task. Will he also provide a list of the international obligations, including treaties we have signed or ratified? As I say that, I wonder if it is even feasible. It can be difficult to find specific information on such international treaties.
Mr. Donncha O'Connell:
Obviously we will have discussions with Departments such as the Departments of Foreign Affairs and Trade, Transport, Tourism and Sport, and Agriculture, Food and Marine. Many issues have nothing to do with human rights. We will try to make it as comprehensive and useful as possible. On the enormity of the task, the Senator might think we are all starting at the same time and are all working equally, but that is not the case. We are five co-ordinating commissioners for particular projects and we have an excellent staff, led on the research side by Ray Byrne. Many people will be working on these projects. I will have responsibility for this but some of my colleagues have much more responsibility than I do. We will be able to give this quite a bit of attention.
Mr. Justice John Quirke:
We will look at the drafting of Bills to see whether that can link to our classified list of things like that. It relates to accessibility. We will try to link with the Attorney General and see if we can make the enactment of Bills and the drafting of Bills as coherent and consistent as possible. We will see if we can assist in ensuring everything links up and that we can make it accessible to members of the public.
Ms Finola Flanagan:
Unlike with other projects, this is not a specific issue of law but rather how law looks when it is made. In all the submissions we got, while we got many suggestions for specific items that people want us to review, the constant comment was that people could not find out what the law was. They could not find it or see it because it was amended and re-amended and so on. This led us to suggest that legislation might be kept in another way. For instance, it might be consolidated first and then codified so that all the law on one topic might be kept in a mini-code and then, when amended, it would remain within that code and not spread out across a range of other legislation which can only be found by looking at the legislation directory that we produce. That is just a list of amendments and is designed to tidy up a very difficult situation. In the end we would hope to suggest that law might be brought into force in a way that remains tightly contained.
We produce a classified list of subject matters, which might provide the basis for the various codes. While not specifically identified, this was perhaps the single most constant request if the suggestions are examined closely. It must be very difficult to legislate if one finds it hard to know what the law is. Amendments cannot be readily understood particularly if they are dealt with urgently. If they were to be slotted into a law that comprehensively dealt with a topic, this might be much more comprehensible over the long term.
Ms Finola Flanagan:
That is the restatement or revision. However, here we take an Act, for instance the Firearms Act 1925, which happens to be in front of me, we look at all the amendments made to it and we set it out in amended form. However, if an amending Act then introduces new material, that does not go into it so that we do not end up with this code that deals solely with all the legislation concerning firearms. A better example might be the Road Traffic Acts which affect citizens considerably more than the Firearms Act. It really would help if they could all be kept together and tightly contained.
That would be greatly welcome because it is an immense problem for lay people, lawyers and legislators. As with so much else, work has already been done on this. Just today the Department of Public Expenditure and Reform announced a review of the Statute Book in terms of overhauling. The criminal law codification project took place in UCD for a number of years and it did quite a bit of work on how to codify, so that would be of help. We would be delighted with anything that does away with civil law (miscellaneous provisions) Acts and criminal law (miscellaneous provisions) Acts that make piecemeal amendments every year.
Mr. Tom O'Malley:
I know it produced an excellent report on the general part of the criminal law. I understand it was moving on to deal with sex offences, but I am not sure whether that came out.
Further to what Mr. Justice Quirke and Ms Flanagan said, what we are recommending is now possible because of information technology. It was not possible to do readily what we are proposing when Acts appeared in print form only. However, now it is very easy to slot in and revise the sections. It is possible to check out a New Zealand criminal Act from 1961 on the Internet and find that it is updated to today. In other words it is not just the Act as originally enacted but it has built into it every amendment in the meantime, which would probably run into the hundreds. That is the general system in Australia and New Zealand. It is excellent from the point of view of the user.
It really is fascinating. I thank the witnesses for coming today. We may seek further engagement with them. We do not want to take them away from the valuable work they are doing. When they produce a report, we may discuss coming together again for a discussion. There was the recent one on missing persons and I do not know we did much on it afterwards. The committee produced its own report on missing persons, but the Law Reform Commission work on it was quite interesting and useful. Senator Colm Burke has produced a Bill on it which is before the Seanad. At some stage we might consider doing something on that in conjunction with the Law Reform Commission, perhaps a pre-legislative discussion on the Bill.
On behalf of the committee I thank the witnesses for their attendance today and I wish them every success with their programme.
In accordance with Standing Orders the following message will be sent to both Houses, "The Joint Committee on Justice, Defence and Equality has completed its consideration of the fourth programme of law reform prepared by the Law Reform Commission."