The Gazette 1987

JULY/ A UGUST

1987

GAZETTE

apparent than in the huge volume of uncollected tax which has presented successive administra- tions with so major a problem. Nor can there be any escaping the widespread dissatisfaction with the system of compensation in per- sonal injury cases currently being administered by the Courts. Because these topics are so unarguably urgent and relevant to people's real needs, some degree of optimism as to the prospects of any recommendations being im- plemented might seem reasonable. But to have the machinery of law reform in place is one thing: to secure its effective implementation in legislation is quite another. This is a problem which is common to law reform agencies in jurisdictions similar to our own to a greater or less degree. Ultimately, of course, the Commission's role must remain advisory, but we are convinced that it will become not merely ad- visory but futile as well, unless considerable care and thought is given to devising procedures which give the ultimate recommendations made by the Commission the op- timum prospects of success in terms of implementation. The traditional method of pro- ducing reports has been to publish a "Working Paper" in the first in- stance, await reactions to it and then publish a final report. The ex- perience of law reform agencies, including this Commission, of this procedure has been singularly dis- heartening: the gloomy experience has been — and I stress again that this is not a problem unique to Ireland — that the response tends to be minimal. Since the Working Paper is published to the world at large and necessarily contains a detailed statement of the law and its defects along with provisional suggestions as to its reform, it must be produced with meticulous care. Mo r eove r, since it is necessarily on occasions highly technical in its approach, a decent interval must be allowed for those who take the trouble to read it, to digest its comments and come up wi th helpful suggestions. This whole process is immensely time consuming and, in the vast majori- ty of cases, wasteful. It has no doubt the useful by-product of making available to lawyers and law students an up-to-date state- ment of the law, but this is hardly

a major function of a body such as this. An extreme response to this pro- blem would be simply to dispense with any prior consultation before the publication of a final report and recommendations. The Commis- sion favours a more flexible ap- proach, which it has been putting into practice during the first months of its existence. In some cases, where the contents of any preliminary examination of the pro- blem is necessarily technical and legalistic, no useful purpose is serv- ed by publication to the world at large. In such a case, one option which is being availed of is to cir- culate on a limited basis preliminary findings by the Commission in the form of Discussion Papers. Another is to form Working Groups of per- sons with an interest in the topic to assist the Commission in identi- fying where the practical problems are and how they can best be tackl- ed. Yet another is to commission other State or outside agencies to conduct empirical research so as to ensure that recommendations are not divorced from what is actually happening in the problem areas. In the field of legal research, which is obviously the most important instrument at the Commission's disposal, there can be fruitful co- operation with the law faculties of the third level instututions. In this latter field, particularly valuable results may be achieved by harnes- sing the capacity for work and in- tellectual energy of our young law graduates. All these approaches should, in the view of the Commission, facilitate the formulation of pro- posals for law reform which are soundly based in empirical and academic research, while avoiding the frustration and delays which seem inevitably to flow from the old fashioned "Working Paper" procedure. There will, of course, be circumstances in which the topic being dealt with raises policy ques- tions of such a nature as to require more than the circulation of a Discussion Paper on a limited basis before the Commission frames its proposals for reform. If I may illustrate what has been done so far to put these new prac- tices into operation, I might refer to the areas of conveyancing, debt collection and compensation for personal injuries. In each case,

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Wo r k i ng Groups have been established consisting of experts in the various fields to identify pro- blems which have arisen and in- dicate possible solutions. In the area of criminal law, they have selected for initial examination the question of the receiving of stolen goods, which has been giving rise to serious problems in practice and which clearly lies at the root of much of the crime in our society. A detailed Discussion Paper setting out the existing law in this area, identifying the problems, sum- marising what has been done in other jurisdictions and indicating possible areas for reform has already been produced by the Com- mission and is being circulated on a limited basis with a view to stimulating comments. I have referred earlier to the preliminary investigations which are being car- ried out in the area of child sexual abuse. They have already involved discussions with people involved in the front line, such as the Rape Crisis Centre and the Sexual Assault Treatment Unit at the Rotunda Hospital. The Commission are also anxious to bring to comple-

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