1. Courts, Public Law and Regulatory Enforcement

1.1 Contempt of court and other offences and torts involving the administration of justice

In 2016, the Commission published its Issues Paper on Contempt of Court and Other Offences and Torts Involving the Administration of Justice (LRC IP 10-2016) (4th Programme of Law Reform, Project 4).

The issues paper examines offences involving the administration of justice, including the law of contempt of court, and takes account of recent developments in this area since the publication of the Commission’s 1994 Report on Contempt of Court (LRC 47-1994), which recommended that the common law rules on criminal contempt and civil contempt should be replaced with statutory provisions.

The issues paper also looks at the legal problems that can arise for journalists if they are asked to reveal the sources of their published material given that refusal by a witness in a court case to answer a relevant question can constitute contempt of court.   The European Court of Human Rights decision in 1996 in Goodwin v United Kingdom case that an order requiring the disclosure of a source could only be justified under the European Convention on Human Rights by “an overriding requirement in the public interest.” has been considered by the courts in Ireland on a number of occasions, but the law on disclosure of journalists sources remains unclear. The Issues Paper asks to what extent this could be clarified.

Finally, the issues paper also examines related offences and torts involving the administration of justice, including embracery (influencing or attempting to influence a juror), champerty (which involves a third party supporting litigation without just cause) and maintenance (where a third party supports litigation without just cause in return for a share of the proceeds). It asks whether it is appropriate to retain these crimes and torts and whether there is a case for their regulation.

1.2 Reform of Non-court adjudicative bodies and appeals to courts

n 2019 the Commission began work on its project concerning the reform of non-court adjudicative bodies and appeals to courts (5th Programme of Law Reform, Project 1).

As with most jurisdictions, Ireland now has a great array of quasi-judicial bodies empowered, usually by legislation, to adjudicate issues and disputes in particular areas. They include An Bord Pleanála, the International Protection Appeals Tribunal, the Residential Tenancies Board and the Social Welfare Appeals Office.

The profusion of such adjudicative bodies is inevitable in the modern administrative state, but they have grown up over many decades on a case-by-case basis, without any standard

approach to procedural matters or their relationship with the courts, including by way of

appeal or review.

The Commission noted in its 2016 report on the law of evidence the varying procedures and

rules of evidence among quasi-judicial bodies[1]. A number of submissions received during the consultation process for this Fifth Programme have drawn attention to the great multiplicity of avenues of appeal from these bodies, and the confusion that this generates. Questions pertaining to related issues, such as the standard of proof to be applied, and access to legal representation, may also be examined.

This project will therefore examine the case for a reformed system, including the approach to evidential matters and simplifying the avenues of appeal to the courts from such bodies. The Commission notes that significant reforms have been enacted in the UK in the Tribunals, Courts and Enforcement Act 2007, which implemented the majority of the recommendations in the 2001 Leggatt Report[2]. The 2007 Act lays down a single basis for appeals from the quasi-judicial bodies within its scope, and the project will examine to what extent this may be a useful reform model for this jurisdiction. The Commission is conscious that other aspects of the reforms in the UK 2007 Act, notably the consolidation of the various bodies into a single tribunal structure with uniform powers and procedures, may present constitutional questions in Ireland under Articles 34 and 37. The Commission will have regard to these important questions in developing the project, and will also review relevant reforms in jurisdictions other than the UK.

 

[2] Sir Andrew Leggatt, Tribunals for Users: One System, One Service (2001)

 

1.3 A Regulatory Framework for Adult Safegaurding

In 2019 the Commission began work on its project concerning a regulatory framework for adult safeguarding (5th Programme of Law Reform, Project 2).

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 the 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.

In developing this project, the Commission will (taking account of any parallel work in this area) consider a range of matters, including:

  1. 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;
  2. powers of entry and inspection, in particular the question of being able to gain access not only to commercial premises but also to a private dwelling;
  3. other powers, such as 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, and
  4. access to sensitive data, including financial information.

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