Thirty Years of Law Reform 1975-2005 delivered by Ronan Keane Former Chief Justice and Former President of the Law Reform Commission To Mark the Thirtieth Anniversary of the Law Reform Commission At Farmleigh House, Phoenix Park, Dublin 23 June 2005 1 Thirty Years of Law Reform 1975-2005 Introduction: of the Code Civil and Law Commissions Two years ago in a great amphitheatre in the Sorbonne the two hundredth anniversary of the Code Civil, the instrument embodying the civil law of France, was celebrated with characteristic Gallic style and elegance. The heroes of the occasion were the great jurists - led by Portalis - who were associated with the birth and development of the code, but those present were of course reminded that its creation is also forever linked with Napoleon, then the First Consul and after whom it is frequently called. He would surely have been surprised by this glowing tribute to his greatness as a law reformer paid by Lord Brougham in the House of Lords a mere thirteen years after he had been defeated at Waterloo: “You saw the greatest warrior of the age – the conqueror of Italy – the humbler of Germany – the terror of the North – account all his matchless victories poor compared with the triumph you are now in a condition to win – saw him condemn the fickleness of fortune while, in despite of her, he could pronounce his memorable boast, ‘I shall go down to posterity with the Code in my hand.’ You have vanquished him in the field; strive now to rival him in the sacred arts of peace! Outstrip him as a lawgiver, whom in arms you overcame!” This rhetorical tour de force came towards the end of an oration which even by the standards of the time must have sorely taxed its audience, lasting as it did for over six hours. That of itself was impressive testimony to the passionate commitment of Brougham to the cause of law reform. The rigidities and anomalies of the common law had given rise to the equitable jurisdiction which in turn had become as fossilised as the system which at one stage it was leavening with justice and fairness. The interventions of the legislature were sporadic. The time had come, he urged, for parliament to establish a body charged with examining the whole body of law governing Britain and Ireland and bringing forward proposals for its modernisation. This was his frequently quoted peroration: “It was the boast of Augustus... that he found Rome of brick and left it of marble... But how much nobler will be our Sovereign’s boast, when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter – found it the patrimony of the rich – left it the inheritance of the poor; found it the two edged sword of craft and oppression – left it the staff of honesty and the shield of innocence.” But for all Brougham’s eloquence, the common law world waited until the middle of the following century before establishing the independent law reform bodies which he had in mind. In the interval, of course, the problems which had exercised him had grown far more acute. The volume of precedents which constituted the common law had increased enormously and statute law consisted of a huge range of acts and instruments stretching over the centuries. Not only was the law disfigured by unjust and anomalous rules: its complexity and obscurity had grown so much that Brougham’s hope that it could be made simple, clear and easily accessible seemed a distant dream. The magnitude of the task facing such bodies, including our own, cannot be overestimated. The role of the courts and the legislature in law reform In Ireland, as elsewhere, the primary role in law reform must be played by the legislature. While the development of the common law by the courts continues to be an important feature of our law, in a modern democracy it is the role of parliament to take the lead in ensuring that our law is just and fair, that anomalies and anachronisms are eliminated and that it is available to everyone in a simple and accessible form. Judges can only decide cases which come 2 before them and, in such cases as do, are bound by the principle of the separation of powers enshrined in the Constitution not to usurp the roles of the legislature and the executive. This is not to underestimate the role played by the courts in the development of the law. The theory that judges simply pronounced what the law was and never themselves effected changes in the law has long been recognised as having no basis in reality: in cases for which the legislature had made no provision and there was no existing precedent to guide the court, judges were bound to formulate principles of law which ruled not only the case before them but other cases with similar facts. That was as much a form of law making as the enactment of a statute but as an instrument of law reform it was of its nature haphazard and lacked a democratic mandate. But it was also ultimately accepted that leaving the reform of the law to the operation of normal political processes frequently resulted in no change, in areas where there seemed no prospective dividend from the electorate, and ill-considered and incoherent changes, in areas in which the voters were seen to be interested. Thus the case for the establishment of a permanent independent body composed of experts in the law charged with keeping it under review and bringing forward proposals for its reform was eventually seen as unanswerable. The nature and functions of successful law reform bodies The experience of law reform agencies in the various common law jurisdictions where they have been in operation suggests that two elements must be present if they are to be successful. Independence First, they must be independent of the government. A body which is simply another branch of the executive will inevitably be perceived as being concerned with implementing whatever may be government policy at any particular time rather than bringing forward proposals for law reform which, viewed objectively, can be seen as being in the interest of society as a whole. That independence is facilitated in Ireland as elsewhere by giving the Commission a statutory basis and by requiring the commissioners to be appointed for a fixed term. That independence is not, however, absolute: the Commission is not left entirely free to decide what subjects it will tackle. I shall return to that topic shortly, but in general it has to be recognised that even a statutory body such as the Law Reform Commission may have its existence terminated by the legislature which brought it into being. Moreover, a government which is sceptical as to the value of a law reform agency may leave it to perish from lack of support as indeed seemed likely to happen at an early stage in the history of the Irish Commission when the government of the day simply left vacancies in the position of commissioners unfilled. Ultimately, there was an acceptance of the need for a body such as the Commission and there seems no serious support now for the view which some ministers apparently had at one stage that it is an expensive and irrelevant luxury. Reform proposals that are relevant to society’s needs The second precondition for a successful law reform agency is that the body must bring forward proposals for changes in the law which have a reasonable prospect of making our laws fair, relevant to society’s needs, easily understood and accessible to everyone. At one time, the view was frequently expressed that law reform agencies should confine themselves to what is sometimes referred to as “lawyers’ law,” by which was meant the elimination by statute of absurdities and anomalies in the law the removal of which would create no controversy. Advocates of that view also urged that the agencies should avoid becoming engaged in areas of policy since that would inevitably involve the making of what might be called in a broad sense political judgements which, it was said, should be left to the executive and the legislature. 3 Law reform in a changing society I think that most people who have worked in the law reform area would agree that this is an unduly narrow view of the proper functions of such bodies. Laws to be fair and relevant must take account of changes in society and advances in human knowledge and understanding in various areas. Experience suggests that leaving the necessary alterations to the vicissitudes of the political process is not a sensible option: governments are inevitably preoccupied for much of the time with responding to the pressure of events and law reform bodies can perform a vital function in drawing the attention of both politicians and the public to changes in the law which are plainly desirable but which for a variety of reasons are unlikely to figure prominently in the election manifestoes of the political parties. Clearly there are areas of intense social controversy in which it would not be appropriate for the Commission to become involved: thus, while family law has been one of the areas in which the Commission has always been particularly active, it was obviously no part of its function in the era before the Constitution was amended to make any proposals for or against the introduction of divorce. It can indeed be said that the Commission has not, in general, seen the advocacy of constitutional change as within its remit, although it has of necessity drawn attention to any constitutional inhibitions which may affect otherwise desirable proposals.