1.
This report covers the period from 1 January 1980 to 31 December 1980 and deals with the activities of the Commission under section 4 of the Law Reform Commission Act 1975 and with other matters referred to in section 6 of the 1975 Act.
2.
The Law Reform Commission is a statutory body corporate, established under section 3 of the Law Reform Commission Act 1975, consisting of a President and four other members appointed by the Government. Mr Justice Brian Walsh is the President of the Commission. His original term of office of five years came to an end on 19 October 1980 and was renewed for a further period of five years.
3.
A number of other changes in the membership of the Commission took place this year. On 19 October 1980, the terms of office of Mr Justice Charles Conroy and Mr Martin E. Marren as Commissioners came to an end. The Commission wishes to record its sincere appreciation to them for their valuable contributions to the work of the Commission in its formative years. On 20 October 1980, two new members of the Commission were appointed: Dr James Casey, Professor of Law, University College, Dublin (and formerly a Research Counsellor in the Commission), and Miss Mary Finlay, a practising member of the Bar. Both new members were appointed for a term of office of five years as part-time members of the Commission.
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4.
The present membership of the Commission is therefore as follows: Mr Justice Brian Walsh, President; Professor James Casey, Miss Mary Finlay, B.A., Barrister-at-Law, Mr Roger Hayes, B.A., LL.B., Barrister-at-Law, and Professor R.F.V. Heuston, D.C.L. (Oxon), Regius Professor of Laws, Trinity College, Dublin.
5.
The staff of the Commission consists of the Secretary, two Research Counsellors, an Executive Officer and three Clerical Assistants. The position of a third Research Counsellor fell vacant on 30 September 1980 consequent upon Dr Casey's resignation from that post upon his appointment as Professor of Law in University College, Dublin. This position has since been advertised and interviews were held with selected applicants. The position has been offered to one of those applicants and he is expected to take up work with the Commission shortly. Mr John McKeon, Barrister-at-Law, was retained as draftsman and he prepared the draft Bill accompanying the Report on Family Law, namely the Family Life Protection Bill 1980.
6.
The Commission was set up to keep the law under review and, in accordance with the provisions of the Law Reform Commission Act 1975, to examine and conduct research with a view to reforming the law and to formulate proposals for law reform. The Commission has prepared a programme for the examination of administrative law, civil liability for animals, conflict of laws, criminal law, evidence, family law, privacy, sales, State Side orders and statute law. The Commission is devoting its attention to these branches of the law and has
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Copies of the Commission's publications are sent to each member of the Houses of the Oireachtas and to all the law schools and the law faculties in the country. Copies are also sent on a reciprocal basis to various law reform agencies outside the State. In performance of its obligations under section 6 of the Law Reform Commission Act 1975 the Commission presented its First Report (1977) (Prl. 6961) to the Attorney General on 1 March 1978, and its Second Report (1978–9) (Prl. 8855) on 8 April 1980. Both of these Reports were duly laid by the Taoiseach before both Houses of the Oireachtas. Copies of these Reports were sent to each member of the Houses of the Oireachtas.
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7.
Since the submission by the Commission of its Second Report to the Attorney General on 11 April 1980 the Commission has issued a Working Paper on the rule against hearsay as part of its study of the law of evidence. The Commission has also submitted to the Taoiseach on 18 September 1980 pursuant to section 4(2) (b) of the Law Reform Commission Act 1975 a Report on Family Law containing the Commission's final recommendations on matters covered in its Working Papers Nos. 4 to 7 and a draft Bill entitled the Family Life Protection Bill 1980 (containing ten parts and 34 sections embodying in legislative form the final proposals of the Commission) together with a comprehensive Explanatory Memorandum for circulation with that Bill.
8.
In this, its first Report to the Taoiseach, the Law Reform Commission makes final recommendations, which are radical and far-reaching, regarding the matters covered in four of its Working Papers:
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Working Paper No. 4–1978, The Law Relating to Breach of Promise of Marriage; Working Paper No. 5–1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse; Working Paper No. 6–1979, The Law Relating to Seduction
and the Enticement and Harbouring of a Child; and Working Paper No. 7–1979, The Law Relating to Loss of Consortium and Loss of Services of a Child. The Report was sent to the Taoiseach on 18 September 1980. |
9.
The Report also contains recommendations on an important matter on which the observations of the public had not been sought in previous Working Papers. In its further analysis of the property questions relating to broken engagements to marry, the Commission came to the view that it would also be appropriate at this time to make recommendations relating to matrimonial property; and specific proposals for the reform of the law in relation to such property are made in the Report and implemented in the Bill accompanying the Report. The proposals are of quite a substantial nature and take account of a number of recent cases in England and Ireland in regard to family property.
10.
On central questions of principle, the Commission, after due consideration in the light of comments made upon the Working Papers, does not recommend any fundamental change in the recommendations in the Working Papers. The theme that runs throughout Papers No. 5 to No. 7 is that of protection of the family against damage to its continuity and stability and to the relationships between its members. This is to give statutory effect to the provisions of Article 41 of the Constitution, in particular section 1.2°, wherein the State guarantees “to protect the Family in its constitution and authority” and section 3.1°, wherein the State pledges itself “to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”, and to make available procedures for civil remedies for the protection of family life against external attack and thus
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11.
Much of the comment that has been made in public discussion of the subjects covered in Working Papers No. 5 to No. 7 has concentrated on the one-sided character and the alleged historical proprietorial aspect of the tort of criminal conversation (which the Commission proposes to abolish) without consideration of the merits of protecting the family in its constitution and authority through the process of the civil law.
12.
In the Report, a brief discussion of the separate aspects of the different subjects of the four Working Papers is made. The Report does not re-argue the advantages and disadvantages of the main recommendations, since the Working Papers already contain an analysis in considerable detail of the various issues.
13.
The Report recommends that the action for criminal conversation should be abolished – Part II of the Bill (s. 3). It does, however, recommend that there be instituted a family action for adultery, available to either spouse, for the benefit of both spouses and the other members of the family living with the spouses. The Report recommends that the action should be available only where the spouses are ordinarily residing together at the time of the adultery. The proposal is based on the assumption that adultery is injurious to the family and causes damage to the innocent spouse and children. The Commission's proposals are implemented in Part III of the Bill (ss. 4–8).
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14.
The Report recommends that the present action for enticement of a spouse should be retained as a family action for damages but with certain amendments to the existing law. One limitation on the right to recover under the new action proposed in the Report is that the damages should be for the benefit of both spouses and the other members of the family living with the spouses. The new action is also dealt with in Part III of the Bill (ss. 9–11).
15.
The Report recommends that the tort of harbouring of a spouse should, in the light of modern circumstances, be abolished; and this is effected in Part III of the Bill at section 3.
16.
The Report recognises that the existing action for loss of consortium appears to give no redress to a wife or to the members of the family for the disruption to family life caused by personal injury to a husband or parent and for the mental distress, however serious, caused to a husband. Similarly, the law at present gives no redress to the parents or other members of the family for similar consequences following personal injury to a child. The Report proposes that the existing causes of action (loss of consortium and loss of services of a child) should be replaced by single family actions for loss of consortium and for damages for personal injury to a child (Part IV of the Bill – ss. 12 to
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17.
The Report recommends that the existing action for seduction of a child should be abolished and replaced by a single family action for seduction of a female child. Under the proposed new law it should no longer be necessary for the plaintiffs to prove a service relationship between themselves and the seduced child. The Report recommends that the action should be available for the benefit of all the members of the family to be defined as comprising the parents and the children (including adopted children and children to whom either parent is in loco parentis) ordinarily residing with the child, and that the Court should award damages to each of the members of the family as it shall consider proportioned to the damage suffered by her or him.
18.
The Report recommends that the female child's action should be merged in the family action. It proposes that the action should be limited to the case where the seduced child is under the age of eighteen years at the time of the seduction and was not or had not been married either at that time or at the time of
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19.
The Report recommends that the actions for the enticement and harbouring of a child (irrespective of sex) should be retained as single family actions, the child's right of action being merged in the family action, as in the case of actions for seduction of a female child. The Report recommends that the actions should be limited to cases of enticement or harbouring of children under the age of eighteen years who are not or have not been married. It proposes that the present law regarding damages should be retained (except in so far as concerns any change necessitated by the abolition of a service relationship). This proposal is subject to the qualification that the Court should be required, in assessing damages, to have regard to the extent, if any, to which the welfare of the child has been affected by the enticement or wrongful harbouring.
20.
The Report recommends that the legislation should provide that the wrongful taking of a child and the keeping of it from those entitled to its custody should fall within the definition of enticement, even where the child who is taken has been in no sense willing to go. The classic example of the type of case envisaged here is where a baby is snatched from his or her pram. Another type of case would be where a child is wrongfully taken from the custody of a parent by a parent who is not entitled to the child's custody or by someone acting on the latter parent's behalf. Part VII of the Bill (ss. 18, 19)
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21.
The law relating to the property relationships between spouses is a matter within the Commission's First Programme for Law Reform (December 1976: Prl. 5984). Aspects of the subject are dealt with in the Report. These aspects reflect, so far as spouses are concerned, issues similar to those regarding the property relations of engaged persons, which are the subject of separate proposals in the Report. (See para. 26 infra.)
22.
Firstly, the Report recommends that section 12 of the Married Women's Status Act 1957 be repealed and re-enacted in an extended form, designed to ensure that the Court can do justice in cases that may be regarded as falling outside the present scope of section 12, as where the defendant spouse has disposed of the property before application is made to the Court and has not made just and equitable payment to the plaintiff in respect of the property. Sections 20 and 21 in Part VIII of the Bill provide a comprehensive summary jurisdiction and comprehensive powers for the High Court and for the Circuit Court in the determination of property questions between spouses.
23.
The sections specifically cover applications by parties to a void marriage, or to a voidable marriage that has been annulled under the law of the State, or to a marriage that has been annulled or dissolved under the civil law of any other State and that is, by reason of that annulment or dissolution, no longer a subsisting valid marriage under the law for the time being in force in the State. In regard to applications by
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24.
Secondly, the Report recommends that, where a spouse, whether directly or indirectly, makes a contribution in money or money's worth to the acquisition, improvement or maintenance of the family home, then, subject to any agreement, arrangement or understanding between the parties, he or she will acquire a beneficial interest (or an enlarged share in the beneficial interest) of such an extent as appears just and equitable to the Court. In this regard the Report proposes that a “contribution in money or money's worth” should include, inter alia, the contribution made by each spouse to the welfare of the family, including any contribution made by looking after the home or caring for the family. The Report's recommendation is implemented in Part VIII of the Bill at section 22.
25.
As mentioned in the Report, the Commission deliberated at some length on the question whether the provisions of section 22 of the Bill should be extended so as to cover all matrimonial property (including property other than the family home). Having regard to the broad range of policy and legal issues that such a step would involve, the Commission felt that this matter could best be dealt with in the context of community of property or co-ownership of property as between husband and wife.
26.
The Report recommends that the action for breach of promise of marriage should be abolished. In its place, it recommends that there be enacted provisions specifying the rights of the parties to the terminated engagement to marry
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27.
All the recommendations contained in the Report are similar in substance to those set out in Working Paper No. 4, subject to one important modification regarding unjust enrichment. The Commission is of the view that it would be better to frame the legislative provisions in somewhat different terms to those originally proposed. Where a party to an agreement to marry that is terminated has received from a third party a substantial benefit other than a gift, the Report proposes that the Court should be able to make such order (including an order for compensation) as appears to it just and equitable in the circumstances. The purpose of this recommendation is to lay less stress on the parties' conduct in respect of the termination of the engagement. The Report's recommendation is implemented in section 27 of the Bill.
28.
Another modification contained in the Report may be mentioned briefly. Where either party to the terminated agreement to marry has incurred substantial expenditure by reason of the agreement to marry, the Report proposes that he or she should be permitted to apply to the Court for the recovery of any such expenditure and the Court may make such order as appears to it just and equitable in the circumstances. Again, it seems desirable to place less emphasis on the conduct of the parties to the engagement than is placed in the Working Paper. (Cp. section 28 of the Bill
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29.
All of the aforementioned recommendations were embodied in legislative form in the Family Life Protection Bill 1980, which, together with a comprehensive Explanatory Memorandum, accompanied to the Commission's Report submitted to the Taoiseach. The Commission also took occasion to draft the Bill in a manner which it believed would make its purpose easily understood. Paragraph 17 of the First Programme of Law Reform indicated that the Commission proposed to examine ways in which the present method and style of drafting statute law might be improved.1
30.
In this Working Paper, the Commission addresses itself to the law of evidence. It recommends that in civil cases, at least, the rule against hearsay should not be retained in its present form as a rigid exclusionary rule.
31.
The rule against hearsay is central to the common law trial system. It makes inadmissible as evidence of any fact a statement other than one made by a person while giving oral evidence. Its effect is that a witness may testify only as to what he has seen or heard himself. It is rooted in the belief that truth is best ascertained by the unrehearsed answers on oath of witnesses who can be examined on what they perceived themselves. The rule is subject to a number of
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exceptions, the most important of which enables evidence to be given of an admission by a party adverse to his own case.
32.
The Working Paper, which runs to 248 pages, contains a full statement of the existing law on hearsay statements in both civil and criminal cases. It contains detailed reference to the Irish cases on the subject, including the pre-1922 decisions of the Irish courts. This is the first time that the Irish law on the subject of hearsay has been set out in detail. Comparison is made with the law and proposals for reform in other comparable jurisdictions and the statutory provisions which have been adopted in Northern Ireland are set out in the Appendix. However, the Paper expressly excludes from its consideration the rules regulating the admissibility of confessions in criminal cases to ensure that they are voluntary as this matter was examined by the Committee to Recommend Certain Safeguards for Persons in Custody and for Members of the Garda Siochana under the chairmanship of Mr Justice Barra O Briain, which reported in April 1978 (Prl. 7158).
33.
The Working Paper criticises the present law because it is unnecessarily complex and can have the effect of excluding evidence of probative value, such as a written medical report of a doctor who dies before the trial or an out-of-court confession of guilt by a person other than the accused. Major problems can arise at present where evidence has to be given from business records, especially those compiled by computers.
34.
In the Working Paper, the Law Reform Commission affirms its belief in the principle underlying the present law that as a general rule the truth is best ascertained by the viva voce examination of witnesses who have personal knowledge of that to which they testify. In order to ensure that witnesses testify if they are available, it recommends that the evidence
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35.
While recognising that the arguments put forward in the Working Paper for the relaxation of the rule against hearsay apply to criminal as well as civil cases, the Commission has reserved its position as to whether the changes suggested might go beyond what is necessary as a matter of practice in criminal cases. Accordingly, it presents the arguments in the Working Paper without making firm recommendations as to the law to be applicable to the admissibility of out-of-court statements in criminal cases until such time as observations have been received from interested persons.
36.
A General Scheme of a Bill containing 14 heads to give effect to the recommendations of the Commission is included in the Working Paper. The inclusion of such a Scheme is common practice in Working Papers. The idea is to indicate to the reader what the legislation will look like in legislative form. Moreover, the Scheme acts as “Instructions” for the Commission's
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37.
The Working Paper was circulated for comment and criticism and the Commission requested that observations on the Working Paper should be submitted before 1 August 1980. Sad to relate no observations have yet been received; so the Commission takes this opportunity to renew its request for observations.
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38.
A Working Paper containing draft legislation on the law relating to the liability of builders, vendors and lessors for the quality and fitness of their premises was published in July 1977 as the Law Reform Commission Working Paper No. 1. Observations on the Working Paper were invited to be made by 1 November 1977. The Commission has considered the submissions received by it in response to the invitation. The necessary Bill is now being drafted and will be included in the Report of the Commission on the subject.
39.
The Law Reform Commission's Working Paper No. 2 published in December 1977 dealt with the law relating to the Age of Majority, the Age for Marriage and some connected Subjects. Observations on the Working Paper were invited to be made before 1 March 1978. The Commission has considered the submissions received by it and a draft Bill is in course of preparation in accordance with its instructions and will be included in the Report of the Commission on the subject.
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40.
Civil liability for animals was the subject matter of the Law Reform Commission Working Paper No. 3 published in January 1978. Observations on the Working Paper were invited to be made before 1 April 1978. The Commission has considered the submissions received by it in response to the invitation. The necessary Bill is now being drafted and will be included in the Report of the Commission on the subject.
41.
A draft Working Paper and a three-part Background Paper have been completed on nullity of marriage which was referred to the Commission by the Attorney General. These have been under consideration by the Commission for some time. The intractable nature of some of the issues raised has prevented this matter from being brought to as rapid a conclusion as had been hoped. A draft Working Paper is being prepared on the law relating to illegitimacy.
42.
The law relating to the domicile of married women was referred to the Commission by the Attorney General in 1975. Following consideration of the draft Working Paper on the subject the Commission decided that it would be desirable to
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43.
In October 1980 at its Fourteenth Session the Hague Conference on Private International Law adopted a Convention on the Civil Aspects of International Child Abduction. The object of this Convention is to secure the immediate return of children under sixteen who are wrongfully removed from the country where they are habitually resident. A draft Working Paper has been prepared on the legislation which will be necessary if Ireland is to become party to the Convention. The draft Paper also treats the more general question of the legal measures which might be adopted to prevent the kidnapping of children out of the jurisdiction. The matter will be considered by the Commission shortly.
44.
As part of its undertaking to revise and reform the law of evidence, both civil and criminal, and with a view to ratifying the various Hague Conventions on procedure, a draft Working Paper has been prepared containing a General Scheme of a Bill to implement the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970). The question of what, if any, legislation is required to implement the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (1961) and the Convention on Service
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45.
The preparation of a draft Working Paper on the protection of privacy is at an advanced stage. It will soon be examined by the Commission and will form the subject of a Working Paper.
46.
A draft Working Paper on the Dublin Police Acts and the Vagrancy Acts has been completed and is being examined by the Commission.
47.
The Law Reform Commission Working Paper No. 8 published in December 1979 dealt with this topic. Observations were invited before 1 April 1980, but as indicated this was not a final date. The preparation of a Report will begin later in the year and the Commission would welcome further observations.
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48.
By arrangement with the Department of Justice, Ireland was represented at the Fourteenth Plenary Session of The Hague Conference on private international law (6–25 October 1980) by the President of the Commission, Mr Justice Brian Walsh. Mr Justice Walsh had already been invited to act as Chairman of the Fourth Commission, which is the general or steering commission and which makes recommendations to the Netherlands State Commission as to the future work of the Conference. Two draft Conventions were completed in final form at the Session. They are a Convention on the Civil Aspects of International Child Abduction and a Convention on International Access to Justice.
49.
The President of the Commission, Mr Justice Brian Walsh, has, since Ireland's accession to the European Communities, been a member of the EEC Committee of Experts from the nine Member States. The Committee was set up by the European Commission to harmonise the rules of private international law within the Communities. The Committee completed its work in 1980 and the Convention was signed by seven of the nine Member States (including Ireland). It now awaits legislative implementation by the Oireachtas.
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50.
The Law Reform Commission has always been of the view that it should be represented on Irish delegations to international meetings of legal organisations and to international conferences that deal with branches of the law within the First Programme of the Commission. It is of interest to note that in the United Kingdom, these organisations and conferences are serviced by members of the English and Scottish Law Commissions.
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51.
In previous Reports reference has been made to the difficulties that the Commission has experienced resulting from the lack of proper accommodation. These difficulties continued during 1980. However, the Commission is at present seeking alternative accommodation; and it is hoped to obtain suitable premises in the very near future.
52.
The superannuation scheme that the Commission has prepared pursuant to section 12 of the Law Reform Commission Act 1975 has now been completed and it will be brought into effect shortly.
53.
The laws in other common law jurisdictions and in civil law jurisdictions are examined by the Commission in its publications. The Commission is grateful for the continuing assistance in this research provided by foreign embassies and legal authorities in foreign countries.
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54.
The Commission wishes to record its appreciation of those Departments of the State that have been of assistance to the Commission in carrying out its functions. The Commission wishes to thank especially the Department of Justice. It also wishes to thank the Office of Law Reform at Stormont, Belfast, with which it continues to have excellent and fruitful relations.
55.
The Commission has expanded its library. Apart from the normal run of textbooks and law reports it was decided to acquire certain journals which are not readily available elsewhere in other libraries. Accordingly full sets have been acquired of the Cornell Law Quarterly, the McGill Law Journal, the North Western Law Review, the Osgoode Hall Law Journal, the Saskatchewan Bar Review, the Texas Law Review, the University of British Columbia Law Review, the University of Chicago Law Review, the Virginia Law Review and the Yale Law Journal.
56.
The process of law reform is dependent on an interaction between the Commission and interested and informed persons. The Commission has been disappointed by the response to its invitation for observations on its various Working Papers. It takes this opportunity to appeal for a better response in the future, especially from bodies representing the various branches of the legal profession.
31 March 1981
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