Renaissance and reformation
Over half a century, the Law Reform Commission has helped shape the legal landscape, significantly contributing to family law, the rights of people with disabilities, criminal law, and the regulation of corporate entities. Sorcha Corcoran nails the theses
An independent institution, the Law Reform Commission (LRC) is responsible for researching and formulating proposals for reforming Irish law to bring it into line with international best practice.
Throughout its work, the commission has upheld its independence and commitment to meaningful legal reform based on transparency and public engagement.
To date, the commission has published 128 reports over five programmes of reform, each one developed to ensure that the law evolves with the times and reflects society’s values and needs.
Many of these reports have directly influenced Irish legislation. Indeed, the commission’s implementation rate of 70% is high by international standards.
The LRC was the brainchild of former Attorney General Declan Costello, who promoted the Law Reform Commission Act 1975 that provided for its establishment in October of that year.
In his address at the LRC’s 50th anniversary conference in September, Chief Justice Donal O’Donnell said that the provision in the 1975 act permitting non-lawyers to be appointed as commissioners remains an important and distinctive one to this day.
In 1975, Dr Helen Burke (lecturer in the Department of Social Science at University College Dublin) was the first non-lawyer to become a commissioner.
“At that time, it was clearly anticipated that one of the areas the commission would particularly focus on was the field of family law, where rapid social change was happening and there was a clear disconnect between social reality and legal provisions. In that context, it made sense to have, for example, a social scientist with expertise in that area,” said the chief justice.
Family-law modernisation
A significant step in the modernisation of Irish family law came in a report published by the commission in 1982.
It boldly proposed that the rights of children should not be restricted on the grounds of their parents’ marital status, and that the status of illegitimacy should be removed from the law.
This was later reflected in the Status of Children Act 1987, which abolished the legal concept of illegitimacy in Ireland.
Mr Justice O’Donnell described 1996- 2005 as “the golden age of the LRC”, which coincided with a new wave of commissioners.
Previously, adults lacking legal capacity were governed by the outdated Lunacy Act of 1871. The commission published the consultation papers Law and the Elderly in 2003 and Vulnerable Adults and the Law in 2006, followed by related reports, which proposed a major overhaul.
Recommendations to assess decision-making ability at the time of the decision and replace the wards of court system with a new adult-guardianship system were included in the Assisted Decision-Making (Capacity) Act 2015.
“The pro-capacity, issue-specific approach to determining decisionmaking capacity pioneered in the Vulnerable Adults and the Law report was hugely significant from a human-rights perspective and welcomed by families of adults with intellectual disability, dementia, and acquired brain injury,” said Prof Deirdre Ahern of Trinity College Dublin, who worked on this report as a legal researcher from 2004-2005.
“I was delighted to see that this foundational work of the LRC has been built upon since, with the commission proposing legislation to safeguard vulnerable adults from harm.”
Draft bills
The LRC has prepared two draft bills, the Adult Safeguarding Bill 2024 and the Criminal Law (Adult Safeguarding) Bill 2024, which are included in its 1,000-page report, A Regulatory Framework for Adult Safeguarding, published in April 2024.
The RTÉ Investigates Inside Ireland’s Nursing Homes programme, which aired in June, brought the urgent need for such an approach into sharp focus.
Dr Andrea Mulligan was the coordinating commissioner on the adult-safeguarding report, which she described at the conference as a “mammoth undertaking”.
“We’re involved in stakeholder engagement at the moment, and I’m very hopeful that it will be implemented,” she said.
“I think it’s important to acknowledge that law reform is not just about dry legal concepts, but also about major questions of ethics, morality, and justice. Within the adult-safeguarding context, there were many such huge conceptual discussions, such as, for example, to what extent must the State respect the right of a person to engage in self-neglect?”
Measures in criminal law
Turning to criminal law, Dr Liz Heffernan, associate professor and fellow at TCD, discussed the LRC’s report on Child Sexual Abuse and its report on Oaths and Affirmations, both published in 1990.
“That groundbreaking body of work resulted in the enactment of part of the Criminal Evidence Act 1992, which established a regime of special measures to support children and persons with intellectual disabilities in giving evidence in trials for violent and/or sexual offences,” she explained.
“It started out as, essentially, the provision of the use of a video-link. Since then, it has blossomed through the transposition of the EU Victims’ Rights Directive with the Criminal Justice (Victims of Crime) Act 2017. More recently, that regime has been, I think, buttressed by the enactment of a statutory provision for preliminary trial hearings – which was also something the commission had called for some time ago.”
What’s interesting to Heffernan in terms of impact here is the transformative effect on legal culture: “There has been a softening in the adversarial and confrontational style of traditional courtroom practice. I think we’ve also seen some move away from categorised assumptions about victims, witnesses, and vulnerable persons towards a more individual-centred approach,” she said.
“In terms of rights, these changes have involved a recognition that the criminal trial is not just about the binary relationship between the State and the accused, but it’s also about the rights of others, notably victims and witnesses.”
Game-changing projects
In his speech, Attorney General Rossa Fanning SC highlighted examples of what he regards as “game-changing projects” undertaken by the LRC that have shaped various aspects of the Irish legal system.
“In its report Non-Fatal Offences Against the Person in 1994, the commission recommended reform of both common law and statutory rules on non-fatal offences. It also recommended that most of the Offences Against the Person Act 1861 should be repealed. These recommendations were realised in the Non-Fatal Offences Against the Person Act 1997,” the attorney general said.
“I would also draw attention to the Mediation Act 2017, which was influenced by the commission’s report Alternative Dispute Resolution: Mediation and Conciliation from 2010.”
The commission’s Reform and Modernisation of Land Law and Conveyancing Law report in 2005 spanned almost 400 pages in length, he added.
“After that report was published, Michael McDowell (then Minister for Justice) requested the assistance of the commission to prepare a bill to implement the recommendations fully. This ultimately resulted in the enactment of the Land and Conveyancing Law Reform Act 2009,” said Fanning.
Legislation Directory
Part of the LRC’s remit is to ensure that Irish legislation is accessible to all. It does this by maintaining the Legislation Directory on the electronic Irish Statute Book, by publishing legislation as amended and undertaking research to enable obsolete legislation to be repealed.
Raymond Byrne, a full-time commissioner of the LRC from April 2016 to July 2021, focused on this aspect of the LRC’s work in his conference presentation.
“The commission has made many significant contributions to the fundamental aim of law reform, which the Law Reform Commission Act 1975 defines as involving, among other matters, codification of law [including its simplification and modernisation], and the revision and consolidation of statute law,” he said.
“To take just two examples, virtually all land law and conveyancing law was codified in the Land and Conveyancing Law Reform Act 2009, and virtually all the key principles of insurance contract law were codified in the Consumer Insurance Contracts Act 2019.”
The commission’s long-established work on access to legislation includes publishing and maintaining over 500 revised acts (the full text of acts in their ‘as-amended’ form), tracking amendments to all acts (formerly the Chronological Table of Statutes), ensuring that the Statute Law Revision Programme completes the removal of all obsolete pre-1922 legislation, and publishing and maintaining the Classified List of Legislation (all in-force acts of the Oireachtas and their statutory instruments, organised under 36 titles).
Byrne noted that, in 2020, the commission proposed that a small group with specialist regulation expertise should be brought together to prepare planned programmes of consolidated legislation.
“The aim would be to consolidate some of the most frequently used legislation, especially where their subject matter has become less accessible through numerous amendments over time. These planned programmes would make the law a bit more accessible and make a contribution to the simplification element of codifying the law, as mandated by the 1975 act,” he concluded.
Sorcha Corcoran is a freelance journalist
THE THICK OF IT
Dr Joseph Spooner of the LSE’s Law School started work at the Law Reform Commission on 1 September 2008, when he was presented with a brief to research the law relating to the enforcement of judgment debts.
“After two weeks on the job, Lehman Brothers collapsed. Within my first month, the Irish banking system closely followed – housing prices crashed, economic turmoil ensued, and there was mass household over-indebtedness,” he recalls in the report Fifty Years of the Law Reform Commission, produced for its anniversary conference.
“Suddenly, questions of how the law deals with household debt and default became crucial, and my research brief was expanded to include a comprehensive reshaping of Irish bankruptcy law, which at the time was outdated and draconian.”
Tireless and visionary campaigning from stakeholder groups at the time highlighted debtor-creditor law as an important area for reform.
“Their input was indicative of the widely collaborative consultative approach taken by the commission during its reform projects. I had the privilege of meeting stakeholders from across Government, international organisations, industry, legal practice, NGOs and academia,” said Spooner.
Two years of intense work produced three publications – a consultation paper (2009), interim report (2010) and final report on Personal Debt Management and Debt Enforcement (2010).
The Government promptly developed the recommendations for a new system of personal insolvency law, and the result was the Personal Insolvency Act 2012.
“There has been a comprehensive cultural change in how Irish law and society think about personal debt, over-indebtedness, and insolvency. The leadership of the LRC played a significant role in realising this change,” said Spooner.