Event: Launch of the Law Reform Commission Report on ‘A Regulatory Framework for Adult Safeguarding’
Speaker: The Attorney General, Rossa Fanning S.C.
INTRODUCTION
President of the Law Reform Commission, distinguished guests, friends and colleagues, may I begin by saying it is a real pleasure to be here this morning to formally launch the Law Reform Commission’s Report on ‘A Regulatory Framework for Adult Safeguarding’.
The list of novelties for an Attorney General does start to reduce as time goes on, though I have had some new experiences in recent months, from appearing as an advocate in the ICJ in February, to going to a Council of State meeting and acting in the first Article 26 reference for 18 years, to being re-nominated by a new Taoiseach last week and to delivering a tribute only on Monday to a retiring Supreme Court Judge, Ms Justice Baker, who of course served as a part-time Law Reform Commissioner between 2012 and 2015.
But, this is the first occasion I have had the pleasure of attending at the launch of a Law Reform Commission Report, and I am delighted to tick that particular box today off my Merrion Street bucket list today.
In that context, and with the 50th anniversary of the establishment of the Commission falling next year, I thought it appropriate to briefly say something at the outset about the origins of the Commission, and in particular, its links with my Office.
In making such remarks, I am counting on not being subject to any hard questioning here this morning, such as that which my predecessor, Declan Costello SC, was obliged to weather when navigating the Law Reform Commission Act, 1975 through the Houses of the Oireachtas, from the likes of Major Vivion De Valera and Gerry Collins. In fact, so eager were parliamentarians to question my predecessor in relation to this legislation that the Seanad even amended its Standing Orders to enable the Attorney General, who was of course also a TD, to participate in the debates in the Upper House.1
However, it is, I think, worth recalling some of the comments he made in the course of those debates, and reflecting on the accuracy of many of the predictions that he made about the Commission.
Declan Costello was among the very first to recognise that law reform is one of the most important tools available to Government to meaningfully reform the society for which it is responsible.2
Such an approach to law reform was, he stressed, for the benefit of all, rather than “a concept of interest only, or indeed primarily for, lawyers”. 3
Rather, law reform provided an opportunity for injustices or inconsistencies in the law to be identified and rectified.
It also provided a clear opportunity to the legislature to intervene and re- adjust or re-balance an approach to a certain issue being taken by the Courts.
In a dynamic and fast-changing world, he said it was incumbent upon us to ensure the law is kept under constant review and regularly reformed.4
Even in those days, let alone now, the regulatory footprint of the State was expanding, and in that context, it would be hard to disagree with his conclusion that “virtually every important and significant private, economic and social relationship” is affected by the law. 5
He was anxious not only that the importance of law reform be recognised, but that this would be achieved in the right way.
In September 1974, James Downey writing in The Irish Times, reported from the Government press briefing announcing the legislation, noting Declan Costello as saying that:
“We are, I am afraid, very backward in this country in law reform, partly because we have not had the structures which we are now setting up”6
He emphasised that that the creation of a dedicated law reform body was required to give the attention and priority to law reform which was sometimes lacking and “too slow in the past”.7
It is I think, fair to say that this vision has been vindicated in the decades since, with the Commission taking a central place in legal discussions, both in Courts8 and in the drafting of new legislation.
The Commission itself has identified that approximately 70% of the various reports and papers it has issued in the years to January 2020 have had an influence on subsequent legislative reform.9
These reform efforts have come in areas of acute interest to the general public, with important and influential reports published in recent years in areas such as conveyancing, harassment and digital safety and consumer insurance contracts.10
However, even aside from its parent legislation being personally shepherded through the legislative process by the Attorney General, the Law Reform Commission continues to have a particularly close relationship with my Office.
Whilst entirely independent in its day-to-day operations, its statutory structure means the Commission is funded from the funds of the Office of the Attorney General, as voted by the Dáil on an annual basis.
The Commission also collaborates with my Office in maintaining a Legislation Directory for the Irish Statute Book website. This Directory tracks the commencements, changes of construction and amendments to legislation passed throughout not only the State’s history, but dating back centuries in certain rare cases.
And as it happens, the position of full-time Commissioner is presently held by one Richard Barrett, a former Deputy Director-General in the Office of the Attorney General.
Under the 1975 Act, I also have a statutory role in relation to the work of the Commission who must consult with me in relation to its Programmes of Law Reform.
Ironically, we were due to have a meeting last Tuesday afternoon, but it had to be postponed as, by virtue of the subtlety of Article 30 of the Constitution, I ceased to be Attorney General at 2.15pm last Tuesday on the appointment of a new Taoiseach, albeit that I regained the status about seven hours later in Áras an Uachtaráin.
I am a statutory consultee because, as Declan Costello stated:
“the Attorney General is especially qualified to discuss with the commission the needs of all Government Departments in matters relating to law reform”. 11
Positioned at the juncture of the legal and political arms of the State, my predecessor observed that the Attorney General of the day “is uniquely situated”12 to assess legal developments in the aggregate, and with a whole-of-Government perspective.
The Attorney General can also have a more direct influence, if he or she specifically requests the Commission to examine specific areas of law outside of the set Programmes of Law Reform, as provided for in section 4(2)(c) of the 1975 Act.13
To date, 43 reports have been published pursuant to a request by the Attorney General, from the first request in 1975 on the appropriate ages of majority and for marriage, to the last in 2017 on the mental element of consent,14 with none outstanding.
So President, we will re-arrange that meeting postponed from last week in early course.
I now turn to the subject of the Commission’s Report here today, the enormous industry underlying which I place on the record my commendation and appreciation of.
The area of adult safeguarding has been the subject of increased attention in recent years, in particular with the reforms implemented in line with the Domestic Violence Act 2018 and the commencement of the Assisted Decision Making Act 2015 in April 2023.
This Act was of course largely implementing recommendations made by the Commission its 2006 Report on ‘Vulnerable Adults and the Law’.15
However, notwithstanding this earlier work, the issue of adult safeguarding was also included in the Commission’s Fifth Programme of Law Reform, in response to a Private Members Adult Safeguarding Bill in 2017.16
Indeed, it was during the course of the Seanad debates on this Bill, that the then Minister for Health, who since Tuesday last occupies an office close to my own in Merrion Street, recognised:
“that there was a need for an appropriate statutory framework for the safeguarding of vulnerable or at-risk adults”.17
The publication of the Commission’s Report today, which expresses a preference for the term “at-risk adults” is therefore, an important and timely intervention.
At the heart of today’s recommendations is the Commission’s conclusion that there is a clear need for a statutory regulatory framework for adult safeguarding in Ireland.
Through its Report, the Commission traces the development of Ireland’s approach in this area, and highlights the “existing gaps and shortcomings” in the current position, based on a combination of guidelines, policies and administrative schemes rather than legislation.
To rectify these shortcomings, the Commission recommends a comprehensive and cross-sectoral legislative scheme, which clearly allocates responsibility and oversight to different groups interacting with at-risk adults in all manner of different settings across Ireland.
Whilst not a panacea, such legislation would, the Commission concludes, focus minds, facilitate cooperation and ultimately, foster an improved society for everyone.
Today’s Report also includes recommendations for the definition of key terms in statute, to provide functional and legal clarity to terms which are familiar to many of us, such as “safeguarding”, “harm” and “capacity”.
It is also suggested that such definitions would be accompanied by a set of guiding principles, to provide a backdrop against which powers and functions would be exercised in this area.
These principles, which include a commitment to a rights-based approach, proportionality and accountability, ensure that individual cases, which are often difficult for all involved, are considered in the appropriate context.
Whilst any regulatory framework for at-risk adults would inevitably impact settings across society, the Commission has also recommended that responsibility for leading and coordinating adult safeguarding practices would repose in a statutory “Safeguarding Body”.
This astute recommendation recognises the implicit truth that whilst there is great value to cooperation and collaboration, the diffusion of responsibility can, if taken too far, obscure accountability.
After all, if everyone is partially responsible, no one person or body is individually accountable.
The group, which today’s Report considers could be established either within the HSE or as an independent entity, would be social-work led and subject to meaningful scrutiny and oversight.
The Commission’s Recommendations strongly emphasise the duties of care owed by society to at-risk adults, including the duty to prevent harm to vulnerable adults.
However, in fulfilling these duties, the Commission emphasises that thinking has advanced significantly from the paternalistic notion that we must simply solve these people’s problems.
On the contrary, the Commission is clear that any legislation must aim to empower and assist, rather than control or direct.
This builds on the approach taken under the Assisted Decision Making Act 2015 and is reflective of international best practice, whereby the most vulnerable people in our society are heard as well as seen.
Throughout the Report, the Commission makes various civil and criminal law recommendations with the primary objective of putting measures in place to safeguard at-risk adults in this jurisdiction.
The Commission’s recommendations are reflected in two very useful draft pieces of legislation that accompany the Report: the Adult Safeguarding Bill 2024 and the Criminal Law (Adult Safeguarding) Bill 2024.
In closing, can I reiterate that the publication of this Report and its recommendations today is an impressive achievement, and one of both practical utility and admirable legal scholarship.
I would suggest that today’s Report is a fine model of the contemplative and considered approach to law reform which Declan Costello envisioned in the 1970’s at the time of the establishment of the Commission.
I want to publicly extend my appreciation to the Commissioners in situ for the lion’s share of the duration of this lengthy project – Mr. Justice Clarke, the President, Richard Barrett the full-time Commissioner, and Mr. Justice Maurice Collins, Ms. Justice Niamh Hyland and Dr. Andrea Mulligan, whilst also thanking Ms. Justice Hyland for her recently-concluded service to the Commission and welcoming Ms. Justice Eileen Roberts as her recently-appointed replacement.
I note from the Report that Andrea Mulligan was the Coordinating Commissioner, and that the Research manager was Leanne Caulfield and I draw special attention to their prominent role in this work, in addition to that of the cohort of principal legal researchers that are identified as having worked on the project - Colin Grant, Clodagh Hunt-Sheridan, Síona Molony, Ciara O’Brien and Katey Tolan.
I might also take this opportunity to congratulate my friend and long-time colleague at the Bar, Siobhán Ní Chúlacháin, on her recent appointment as Director of Research and I wish her well with her career with the Commission.
I have no doubt that the Report, its contents and recommendations will be given the careful consideration by Government that it deserves, which is of course the ultimate goal of the Commission’s work.
Thank you very much for listening to me, and I have no doubt that an interesting morning’s discussion awaits.
1 Seanad Deb 10 April 1975, vol 80, no 2.
2 Dáil Deb 4 February 1975, vol 277, no 10.
3 Seanad Deb 10 April 1975, vol 80, no 2.
4 Dáil Deb 4 February 1975, vol 277, no 10.
5 Dáil Deb 4 February 1975, vol 277, no 10; see also Seanad Deb 10 April 1975, vol 80, no 2.
6 James Downey, ‘Government to set up law reform body’ (The Irish Times, 17 September 1974).
7 Dáil Deb 4 February 1975, vol 277, no 10.
8 See, for example, DPP v Fergal Cagney [2008] 2 IR 111, O’Shea and O’Shea v Attorney General [2007] 2 IR 313 and DPP v McNamara [2021] 1 IR 472.
9 ‘What We Do: Measuring the impact of our work’ (Law Reform Commission): https://www.lawreform.ie/law-reform/overview.445.html.
10 Law Reform Commission, ‘Report on Reform and Modernisation of Land Law And Conveyancing Law’ (LRC 74 – 2005); Land and Conveyancing Law Reform Act 2009; Law Reform Commission, ‘Report on Harmful Communications and Digital Safety’ (LRC 116 - 2016); Harassment, Harmful Communications and Related Offences Act 2020; Law Reform Commission, ‘Report on Consumer Insurance Contracts’ (LRC 113 – 2015); Consumer Insurance Contracts Act 2019.
11 Seanad Deb 10 April 1975, vol 80, no 2.
12 Dáil Deb 4 February 1975, vol 277, no 10.
13 Law Reform Commission Act, s 4(2)(c).
14 Law Reform Commission, Report on the age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983); Law Reform Commission, Report on Knowledge or Belief Concerning Consent in Rape Law (LRC 122-2019); See further ‘Attorney General References’ (Law Reform Commission): https://www.lawreform.ie/law-reform/attorney-general-references.246.html
15 Law Reform Commission, ‘Report on Vulnerable Adults and the Law’ (LRC 83 – 2006).
16 Law Reform Commission, ‘Report: Fifth Programme of Law Reform (LRC 120 – 2019), para 1.05.
17 Law Reform Commission, ‘Report: Fifth Programme of Law Reform (LRC 120 – 2019), para 1.05.
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