The Gazette 1987

GAZETTE

JULY/

UGUST

1987

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-

133