EMBARGO: MIDNIGHT TUESDAY 4TH JUNE 2019
LAW REFORM COMMISSION PUBLISHES
FIFTH PROGRAMME OF LAW REFORM
COMMISSION’S FIFTH PROGRAMME OF LAW REFORM, PREPARED AFTER EXTENSIVE PUBLIC CONSULTATION, CONTAINS 15 PROJECTS
ONE PROJECT WILL EXAMINE WHETHER IT IS CONSTITUTIONALLY PERMISSIBLE OR OTHERWISE DESIRABLE TO LEGISLATE FOR CAPS ON GENERAL DAMAGES IN PERSONAL INJURIES CASES
ANOTHER PROJECT WILL EXAMINE THE NEED FOR AND FORMAT OF A REGULATORY FRAMEWORK FOR ADULT SAFEGUARDING
Wednesday 5th June 2019. The Law Reform Commission’s Fifth Programme of Law Reform / Tuarascail An Chuigiu Clar un Athchoiriu an Dli (click here for Irish version) is being launched at 5pm this evening at the Commission’s offices by the Attorney General, Séamus Woulfe SC.
The Commission’s statutory role under the Law Reform Commission Act 1975 is to review the law and to make proposals for law reform. This role is carried out primarily under a Programme of Law Reform. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act.
Fifth Programme Follows extensive consultation and contains 15 projects
This Fifth Programme was prepared by the Commission following extensive public consultation throughout 2017 and 2018, which included publishing a list of selection criteria that the Commission would apply in considering suggestions for inclusion in it. The Commission received over 70 written submissions from individuals, NGOs, representative groups and Government Departments; as well as many other proposals from those who attended the public consultation meetings held in Limerick, Dublin, Galway, Dundalk and Cork. In total, the Commission received and considered over 150 proposals for consideration, and concluded that it would be possible to examine 15 identified projects within a reasonable timeframe of about 3 years. The draft Fifth Programme with these 15 projects was then discussed and approved by the Attorney General’s Consultative Committee in 2018 and by the Oireachtas Joint Committee on Justice and Equality in February. Following this, and in accordance with the 1975 Act, the Fifth Programme was approved by the Government without modification on 20th March.
The Fifth Programme contains 15 projects, organised under 6 general subject headings
A. COURTS, PUBLIC LAW AND THE DIGITAL ERA
- Reform of Non-Court Adjudicative Bodies and Appeals to Courts
- A Regulatory Framework for Adult Safeguarding
- Privacy and Technology in the Digital Era
B. CRIMINAL LAW AND CRIMINAL PROCEDURE
- Structured Sentencing
- Review and Consolidation of the Law on Sexual Offences
- Compensating Victims of Crime
- Regulation of Detention in Garda Custody
C. CIVIL LIABILITY AND CIVIL PROCEDURE
- Caps on Damages in Personal Injuries Litigation
- Protective Costs Orders
- Liability of Hotels and Related Establishments
- Liability of Unincorporated Associations
- Aspects of the Law of Evidence
- bad character evidence;
E. FAMILY LAW
- Aspects of Family Law
- proper provision on divorce;
- foreign divorces
F. LAND LAW
- Aspects of Land and Conveyancing Law
- adverse possession;
- prescriptive easements.
Outline of some projects in the Fifth Programme of Law Reform
Project 2: A Regulatory Framework for Adult Safeguarding. In a Seanad debate on a Private Member’s Bill, the Adult Safeguarding Bill 2017, the Minister for Health stated that the Government agreed that there was a need for an appropriate statutory framework for the safeguarding of vulnerable or at-risk adults. The Department of Health and a number of other bodies also made detailed submissions requesting the Commission to include this matter in the Fifth Programme. The Commission has previously completed work in this general area, including a 2006 report which recommended the replacement of the adult wardship system with legislation on adult capacity based on a functional test of capacity, largely reflected in the Assisted Decision- Making (Capacity) Act 2015 (which has not yet been fully commenced). This project will consider a range of matters, including co-ordination of any new proposed powers of existing or new bodies with other regulatory and oversight bodies, such as the Health Information and Quality Authority on health matters, the Central Bank on financial matters and the Department of Employment Affairs and Social Protection on social welfare matters. It will also consider what regulatory powers may be needed in this area, including those considered by the Commission in its Fourth Programme project on Regulatory Powers and Corporate Offences, on which the Commission published its Report in 2018.
Project 3: Privacy and Technology in the Digital Era. This project will consider aspects of the impact of the digital era on the law. The Commission will give priority to examining how technology in the digital era has affected traditional views of privacy. In particular, it will explore to what extent the Commission’s previous work in this area in the late 1990s, concerning privacy and surveillance, needs to be reconsidered in the context of the internet era, and to what extent this area (where the State and, increasingly, private sector actors are involved) has evolved in the interim. The project may also examine a discrete area concerning the future impact of interconnected digital devices – the Internet of Things (IoT). For example, the development of autonomous vehicles and vessels is likely to have significant effects on the interaction between road traffic law or maritime regulations on the one hand, and product liability law on the other, and such a discrete project could therefore identify reforms that would be required.
Project 5: Review and Consolidation of the Law on Sexual Offences. During the public consultation process for the Fifth Programme, the Commission received a large number of submissions concerning the need to review specific aspects of sexual offences law and for the consolidation of the law. The project will therefore examine the case for reform of certain specific aspects of sexual offences law, including: the definition of rape; sexual history evidence; the high attrition rate in sexual offences cases, and whether procedural and other reforms could have an impact on this; and separate legal representation for complainants. As to consolidation, while the enactment of the Criminal Law (Sexual Offences) Act 2017 has provided for significant reform, it did not involve consolidation of the law, and it remains the case that some sexual offences on the statute book date back to the 19th century. Both aspects of this project will take account of relevant work by the Department of Justice and Equality in relation to sexual offences, and of the Commission’s current project on knowledge and belief as to consent in rape law (which arises from a request by the Attorney General under the 1975 Act to examine this issue).
Project 8: Regulation of Detention in Garda Custody. This project will examine the potential for consolidation and reform of the legislation concerning the detention of persons in Garda custody, which is principally regulated at present by the Criminal Justice Act 1984 and relevant Regulations made under the 1984 Act, such as the Treatment of Persons in Custody in Garda Síochána Stations Regulations 1987, the Electronic Recording of Interviews Regulations 1997 and the Suspension of Detention under section 4(3A)) Regulations 2011. The 2018 Report of the Commission on the Future of Policing in Ireland (the O’Toole Commission Report) recommended that such a project would be valuable. In developing the project, the Commission will have regard to the relevant provisions in the Constitution, EU law and the European Convention on Human Rights. The Commission will also ensure that work on this project complements the Government’s implementation plan for the O’Toole Commission Report.
Project 9: Caps on Damages in Personal Injuries Litigation. This project will consider whether it would be constitutionally permissible and, if so, whether it would be desirable to legislate for statutory caps on general damages (damages for pain and suffering) in personal injury cases. The Costs of Insurance Working Group and the Personal Injuries Commission recommended that the Commission should consider including this project in the Fifth Programme. The project will take into account that the courts have, in a number of cases in recent years, laid down what have been described as “caps” or “tariffs” on general damages which take account of the injuries suffered by a plaintiff and, in some instances, the level of special damages awarded (for example, for loss of earnings and medical care costs). These caps or tariffs have been adjusted by the courts over the years, taking account of general economic conditions and medical costs inflation. The project will also take account of the proposal that the Judicial Council will include a Committee that could develop further guidance in this area.
Project 14: Family Law: proper provision on divorce; recognition of foreign divorces. Article 41 of the Constitution and the Family Law (Divorce) Act 1996 provide that, in a divorce case, a court must determine whether proper provision has been made for the spouses involved. Considerable case law has arisen on this issue, and while the 1996 Act provides for certain matters to be taken into account, the determination of “proper provision” remains primarily a matter for judicial discretion. Among the issues that have given rise to debate in the case law is the extent to which ongoing payments or lump sum awards may be made. The project will consider to what extent any further guidance may be provided in order to ensure a consistency in the approach taken to the exercise of this judicial discretion, in particular to assist spouses to reach settlements and resolve disputes more efficiently and at lower financial cost.
Several submissions to the Commission also raised concerns about the uncertainty surrounding the basis for the recognition of foreign divorces. In a case called H v H in 2015, the Supreme Court held that the current test was based on whether one of the spouses was domiciled in the foreign jurisdiction, as opposed to one of the spouses being habitually resident in that jurisdiction. The determination of “domicile” includes an assessment of the intention of the person to remain in the foreign jurisdiction, which has proved complex to determine in some instances, whereas a test of habitual residence can be determined by factual circumstances alone, which may be less complex. The Supreme Court considered that the test could be changed by legislation, and this project will therefore consider whether the current test should be reformed.
Completing current projects and work underway in the Fifth Programme
The Commission is completing work on the remaining projects in its Fourth Programme of Law Reform (including a project on the methods for implementing international obligations in Ireland and a project on the consolidation and online publication of legislation) as well as on two projects arising from requests from the Attorney General (on privilege for court reports under the Defamation Act 2009 and on knowledge and belief as to consent in rape law).
The Commission has also already begun work on some of the projects in the Fifth Programme. This includes the project on A Regulatory Framework for Adult Safeguarding and on the project on Caps on Damages in Personal Injuries Litigation. On these projects, the Commission intends to publish Issues Papers, seeking the views of the public and any interested parties, by the end of the year.
The President of the Law Reform Commission, Ms Justice Mary Laffoy, comments in her Foreword to the Fifth Programme:
“The importance of public consultation in relation to the content and the Commission’s development of a Programme of Law Reform cannot be emphasised too strongly, nor can the invaluable contribution which members of the public, private organisations, and public organisations make to such content and development...
The Commission has started working on some of the projects in the Fifth Programme and it is hoped that it will publish Issues Papers and Reports in relation to most, if not all, of those projects over the next three years, over which period the collaborative and consultative processes will continue.”
For further information/interview with the Commission President Ms Justice Mary Laffoy or other Commission representative contact:
Winifred McCourt, McCourt CFL T: 087-2446004
Background Note for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 200 documents (Consultation Papers, Issues Papers and Reports) containing reform proposals, available at www.lawreform.ie. Over 70% of these proposals have influenced the drafting and content of reforming legislation. The Report on the Fifth Programme of Law Reform will be available on the Commission’s website on the morning of 5th June.