Statute Law Revision Bill 2009: Second and Subsequent Stages.

Thursday, 10 December 2009

Seanad Eireann Debate
Vol. 199 No. 6

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Question proposed: “That the Bill be now read a Second Time.”

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  I welcome the Minister of State at the Department of the Taoiseach, Deputy Pat Carey.

Minister of State at the Department of the Taoiseach (Deputy Pat Carey): Information on Pat Carey  Zoom on Pat Carey  I am pleased to introduce the Statute Law Revision Bill 2009 to this House, it having already had the benefit of an interesting debate in the Dáil.

This Bill is being brought forward within the context of broader work on better regulation in Ireland as articulated in the 2004 White Paper, Regulating Better. At the centre of the better regulation programme is the belief that both the flow of new legislation and the stock of existing legislation must be addressed. The Statute Law Revision Bill 2009 addresses the stock of legislation on the Statute Book and seeks to repeal all local and personal Acts prior to 1851 and private Acts prior to 1751, which have become obsolete or spent. It is a key element of the statute law revision programme which has been established in the Office of the Attorney General under the ambit of the Department of the Taoiseach, to remove obsolete legislation from the Statute Book, reducing regulatory burden on both business and the citizen and moving towards the modernisation of Irish law.

The term “Statute Book” is neither a technical nor a legal term but simply refers to all primary legislation, such as statutes or Acts, as they may be called, and secondary legislation, such as orders, regulations, rules, schemes and by-laws, that have not been repealed or revoked. In terms of primary legislation, there are three categories, namely, public general Acts, which were dealt with by the Statute Law Revision Act 2007, and local and personal Acts and private Acts, which form the subject matter of the present Bill. In respect of all three categories, much material remains on the Statute Book merely because of inertia. While the Acts may contain a wealth of historical information, they have long since served their intended purpose and have become obsolete. However, until express removal, the obsolete Act retains its place on the Statute Book.

There are a number of reasons it is wholly undesirable for such obsolete pre-1922 legislation to remain on the Statute Book. First, it is misleading for users who may believe by virtue of an Act simply remaining on the Statute Book that it retains some modern effect or relevance. At present, for a user of the Statute Book to determine whether a statute may be of relevance, they may be obliged to undertake the time-consuming task of carefully analysing a statute only to come to the conclusion that it is obsolete or spent. Accordingly, the removal of legislation which has lost any practical utility or is obsolete provides valuable assistance in modernising the Statute Book and renders it clearer, shorter and more accessible for all users and facilitates the process of regulatory reform. Second, this initiative is an expression of this country’s independent, democratic outlook. It is not appropriate that laws from the pre-independence era should remain in force here indefinitely. This Bill is a further step in a process which ultimately will see pre-independence legislation removed from the Statute Book.

The Statute Law Revision Bill 2009 is the third Bill brought forward in the current phase of statute law revision. The Statute Law Revision (Pre-1922) Act 2005, which repealed 207 Acts, [377]was the first such measure and paved the way for the Statute Law Revision Act 2007. As Members will recall, that Bill, which expressly repealed more than 3,000 statutes, was the largest repealing Act applying in Ireland either before or after independence and was one of the most innovative pieces of legislation to be enacted in recent years. It has brought clarity for the first time regarding the public general Acts enacted prior to independence, by listing all public general Acts in Schedule 1 that were not repealed. This central feature of a scheduled “white list” of Acts which were not repealed has again been adopted in the present Bill.

The Statute Law Revision Bill 2009 is the third Bill brought forward in the current phase of statute law revision and deals with private Acts enacted prior to 1751 and local and personal Acts enacted prior to 1851. While the 2007 Act dealt with public and general Acts, a large number of local and personal Acts and private Acts remain on the Statute Book. This is part of the general body of statute law, which was enacted by various different Parliaments legislating for Ireland prior to 1922. These include Anglo-Irish Parliaments and English and British Parliaments, legislating for the whole of Ireland prior to 1800, and United Kingdom Parliaments legislating for Ireland and Britain after the Act of Union of 1800. These Acts continued in force by virtue of Article 73 of the Constitution of Saorstát Éireann and Article 50 of the Constitution of Ireland. The 2009 Bill will do for private Acts enacted before 1751 and for local and personal Acts enacted before 1851, what the 2007 Act did for the public general Acts enacted before independence.

Private Acts are those which are concerned with the affairs of a single individual or body. They are enacted under a different procedure entirely from that for public and general Acts. The private Acts listed in the Bill include many naturalisations, denizations, approvals of marriage settlements and divorces. The Bill contains a number of private Acts enacted by the Irish Parliament between 1534 and 1750. Unfortunately the original texts for these Acts did not survive the destruction of the Public Records Office in 1922. Extensive efforts have been made to track down copies of the texts of these Acts but despite that, it has become apparent that for a number of them, no text remains in existence in any form. Records of the subject matter of many of those private Irish Acts indicate they are now spent or obsolete. However, because of section 27 of the Interpretation Act 2005, any rights, privileges or obligations etc. that there might be under those Acts would be saved when those Acts are repealed. Consequently, it is proposed to repeal those private Irish Acts up to 1750 for which no surviving copy can be traced.

Local and personal Acts are concerned with matters affecting a very limited section of the community such as a single local authority, local area or company. Local and personal Acts were published in a separate series between 1797 and 1922. Prior to the enactment of company registration law in 1844 and of limited liability for companies in 1855, most commercial companies were incorporated by an Act of Parliament.

The statute law revision project under the ambit of the Office of the Attorney General embarked on a process of extensive analysis, research and consultation prior to publication of this Bill. While local and personal Acts and private Acts are not of general applicability as the public general Acts are, they still require careful analysis to identify those with ongoing relevance. There are 3,182 pre-1750 private Acts, including 175 private Irish Acts, and 7,543 pre-1850 local and personal Acts making a total of 10,725 Acts potentially coming within its scope. Of these, 8,957 Acts were assessed as not being applicable to Ireland. Of the applicable Acts, 139 have been identified as being not suitable for repeal as they contain provisions which may have ongoing relevance. The remaining 1,347 Acts have been assessed as suitable for repeal on the basis that they are spent or obsolete. As with the pre-1922 public and general Acts dealt with by the Statute Law Revision Act 2007, it is intended that the private Acts and local and [378]personal Acts that did not apply to Ireland will be implicitly repealed by their not being saved and referred to in Schedule 1 to the Bill.

Each of the 10,725 Acts within the scope of this Bill were individually assessed, first, except for the Irish Acts, in respect their applicability to Ireland, second, as to whether they had already been repealed and finally those that were deemed applicable to Ireland and unrepealed were analysed with regard to their suitability for repeal. An Act was deemed to apply if it had a tangible connection to Ireland. As a result of this cautious approach, some Acts appear in the Bill which, on a reading of their Short Title or subject matter alone, do not appear relevant to Ireland. These Acts were deemed to be applicable if they contained provisions relating to Ireland. For example, some Acts applied to Irish ships, to all ports in the United Kingdom or contain a provision which allows the Act to be enforced in the Irish courts of the time.

Other Acts related to the status of persons who were formerly foreigners and concerned denizations and naturalisations which would have been automatically recognised and applicable in Ireland. After the initial assessment was made, there was detailed consultation with all Government Departments and relevant State agencies, semi-State bodies and local authorities. Each Department was given the opportunity specifically to approve or reject the repeal of an Act or statute listed for repeal. In addition, public notices were placed on the website of the Office of the Attorney General and in a number of newspapers. The complete list of the Short Titles or subject matter of all pre-independence private Acts and local and personal Acts is also available on that website.

At all times, a cautious approach was taken in regard to the decision as to whether an Act was suitable for repeal or not. Acts are only listed for repeal where they are wholly obsolete or spent. If it became apparent that any of the provisions of an Act may have some ongoing relevance or effect, the Act has been retained for the present. Among the Acts retained by this Bill are Acts relating to Maynooth College, certain harbours and ports, various railways and a number of specific hospitals. As I have already indicated, Irish private Acts for which no copy can be found are proposed for repeal but this will not affect the saving provisions for rights, privileges and obligations etc. contained in section 27 of the Interpretation Act 2005.

For the benefit of the young students in the Gallery, if they have time it would be an interesting exercise to go through the fascinating document which is available on the website of the Attorney General. If they want to talk to the person who did a lot of work, Mr. Richard Humphreys, is sitting beside them in the Gallery.

Senator Donie Cassidy: Information on Donie Cassidy  Zoom on Donie Cassidy  Hear, hear.

Deputy Pat Carey: Information on Pat Carey  Zoom on Pat Carey  The Bill lists many Acts for repeal which, although now obsolete, have an enduring interest from a historical or sociological perspective and provide a fascinating insight into life at the time and the measures adopted by Parliament to deal with issues which arose. For example, the Bill contains an Act of 1825 which aimed to facilitate steam navigation between the United Kingdom and the continent and islands of America and the West Indies. The American and Colonial Steam Navigation Company was established and the purpose of the Act was to facilitate the beneficial removal of the surplus population of Ireland to a healthy and thinly-populated country.

The Bill contains many private Acts relating to divorces and naturalisations. Until 1844 a resident born outside of the United Kingdom could only become a British citizen by means of an Act of Parliament. This process was known as naturalisation and required individuals to take the oaths of supremacy and allegiance. From 1609 the individual concerned had to produce a certificate testifying that holy communion according to Anglican rites had been received. [379] Contained in this Bill is an Act of 1726 which provides for the naturalization of George Frederick Handel, whose naturalization coincided with him being commissioned to write a piece for the coronation of George II. The resulting piece, one of his most famous, has been used in every coronation since.

I will now discuss the sections of the Bill. Section 1 provides definitions of “local and personal Act”, “private Act” and “relevant statute”. The definitions of the series of statutes are necessary to distinguish them from statutes of a public general nature which are not affected by this Bill. It can be noted that the definitions relate only to statutes and therefore do not include charters of a local and personal or private nature, and thus such charters are not revoked by the Bill.

Section 2 is the central feature of this Bill. It will provide for a fundamental clarification and simplification of the Statute Book by expressly repealing all local and personal Acts up to and including 1850 and all private Acts up to and including 1750, with only two exceptions. These exceptions are the Acts listed in Schedule 1, that is, the local and personal Acts and private Acts which are still relevant, and the pre-1922 Acts which have already been saved by Schedule 1 to the Statute Law Revision Act 2007 and which are still in force. It is necessary to include reference to the public Acts in order to ensure the scope of this Bill dovetails with that of the Statute Law Revision Act 2007. This is because some of the Acts in the 2007 Act were published or listed both as public and private Acts.

For reference purposes, section 3 provides for the list in Schedule 2 of statutes repealed by section 2 which, wholly or to some extent, were applicable to Ireland. Section 4 will assign Short Titles to any Act which is saved by section 2 and which does not already have a Short Title. Section 5 makes provision for the amendment of any unconventional or inappropriate Short Titles in respect of Acts saved by section 2, in order to facilitate the citation of those Acts in the future.

Section 6 provides for standard savings clauses. For clarity, as with the Statute Law Revision Act 2007, reference has also been inserted to the application of statutes to the State, in order to ensure that the saver clause is wide enough to preserve statutes which have been applied to Ireland by statutes repealed by this Bill. Subsection (2) of section 6 is designed to preserve the status of bodies which may have been established by a charter made consequent on a statute which is being repealed by this Act. Section 7 provides for a Short Title and collective citations. These are standard form provisions.

Schedule 1 provides a list of pre-independence statutes for each period concerned which are not being repealed. Again, those periods are before 1 January 1751 for private Acts and before 1 January 1851 for local and personal Acts. Schedule 2 lists the Acts specifically repealed by the Bill. These are the Acts which, while applicable to Ireland, have been identified in the course of the review as appropriate for repeal because they are spent, have become obsolete or are otherwise unnecessary.

Other local and personal Acts and private Acts for the periods concerned which do not relate to Ireland or have only a tenuous and indirect connection with Ireland will not be included in Schedule 2 but will be impliedly repealed by virtue of the general repeal provision in section 2. Accordingly, this approach, which was also adopted in the Statute Law Revision Act 2007, will improve clarity as to the repeals relevant to Ireland and provide greater transparency with respect to relevant repeals.

This Bill, in tandem with the Statute Law Revision Act 2007, constitutes one of the most extensive statute law revision programmes ever undertaken anywhere in the world. This Bill when enacted will for the first time provide a complete list of all private Acts up to 1750 and local and personal Acts up to 1850 which have not been repealed. I am quite satisfied, from [380]the work undertaken by the statute law revision project, that the Acts specified in Schedule 2 to this Bill are no longer necessary as their purpose has ceased. The time has come to remove them from our Statute Book and with it to take a step closer to our ultimate aim of a clear, concise, coherent and accessible Statute Book.

As of last Sunday, it is 87 years since Ireland gained independence. This Bill is a step in a process which will ultimately see pre-independence legislation removed from the Statute Book. While some of it will be reproduced in a modern form, it will be a form which more appropriately reflects the conditions of a sovereign, independent Ireland, as we begin the approach to 100 years of independence. I commend the Bill to the House.

Senator Paul Bradford: Information on Paul Bradford  Zoom on Paul Bradford  I welcome the Minister of State. It is a calmer place for him than the other House was yesterday. I apologise for my learned colleague, Senator Regan, who would have brought a great deal of legal precision to the debate. I am an inadequate substitute for him today.

I listened with interest to the contribution of the Minister of State. I was unaware that we were being observed by one of the authors of the Bill. It is fascinating to examine the old laws, and their Titles and details. In our country we have had a very interesting history and engagement with our neighbouring island. There has been a great deal of conflict down through the generations. We must also recognise that much of our current law stems from another jurisdiction and is part of the thread of history which intertwines the two nations.

Some of the Titles of the old Acts, statutes and provisions are fascinating, such as the Town of Fermoy Act, the Mallow Railway Bridge Act and the Youghal Bridge Act. It brings the issue closer to all of us. In the copy I received from Senator Regan he had noted some of the Bills that related to his area, Dún Laoghaire, which is referred to as Kingstown on some occasions. The Bill is necessary and welcome. The staff of the Office of the Attorney General and all those who have been involved must be thanked. I am advised that the cost of the project to date is minimal and that very good value has been obtained. It is a necessary project. Presumably the former Taoiseach, Deputy Bertie Ahern, initiated this statute revision. For modern Ireland it is a necessary tidying up exercise. Some 87 years since gaining independence it is better that our body of law more fully reflects the Republic of Ireland and its legislation.

It is difficult to raise any issues with the legislation. As the Bill passes through the House, we can simply reflect that with so much legislation now being passed by the Oireachtas, particularly in the justice area, we must be cognisant that our primary role in this House as elected Members is to pass legislation. Obviously, as politicians, we have various duties, sometimes very far removed from the legislative side of the equation. However, our primary duty, as legislators, is to reflect on, amend, if necessary, and propose legislation. Probably the task of Oireachtas Members in coming decades, as we tackle the big economic challenges of our time, will be to take their legislative role more seriously and engage more fully in the process. Outside the House there is considerable debate on Oireachtas reform, the role of politicians and how we are elected. However, it should be all about legislation. The number of Acts, statutes and Bills introduced through the generations shows that there has always been and always will be the concept of legislation which must be at the core of our work.

The title of the Bill refers to the citation of Bills. As we plough through Bills of all kinds in the House, I am often struck by how they are named in a cumbersome way with very distant phraseology removed from reality. Legislation in the United States is generally termed in user-friendly language. In particular, I recall the proposal of former President Bush on education policy in allowing access and guaranteed delivery of education. The Bill was called the No Child Left Behind Bill. If we were doing something similar here, we would probably call it the [381]“Education (No. 7) (Amendment)(Guarantee of Rights to Education) Bill 2011”. By using such language we remove law from the public. If we were to use more user-friendly titles for legislation, it might help the public to understand what we are about and the legislation we were passing. It is a moot point, probably one for another day. However, as we look through so many titles in this legislation, it is a matter on which we might reflect.

I welcome the legislation and thank all of those involved. As reported to me by Senator Regan, the cost has been very modest and the money well spent. I ask the Minister of State to indicate the rate of progress and when it might be finished. As we have now started the process, I hope we can finish the job and put the new proposal in place. I thank the Minister of State for his interesting contribution which, like my own, strayed slightly from the Bill; otherwise we might have had little more than a sentence to say. It is fascinating reading. While the parliamentarians of yore might have had more comfortable and safer seats than we have, it appears they were quite active. Long may that continue with us.

Senator Donie Cassidy: Information on Donie Cassidy  Zoom on Donie Cassidy  I also welcome the Minister of State at this busy time with the budget in the Dáil. The Bill lists some fascinating legislation. Over the 258 years, how many parliamentarians have passed through all parliaments? Dealing with the 10,725 Bills which are all interconnected is a mammoth task for Dr. Richard Humphreys and the eminent individuals in the Office of the Attorney General with whom I have worked so closely during the years. I propose a vote of congratulations to them. It is hard to imagine the Parliaments in existence in 1751. However, it is interesting to look at some of the Bills and consider how they might be relevant to the country. I picked out one relating to the Liverpool East India Warehouse Company. The project needed to be undertaken. I congratulate everyone concerned on their commitment and dedication. The previous speaker mentioned that the former Taoiseach, Deputy Bertie Ahern, had played a role in initiating the project. If that is the case, I congratulate him and everyone involved in bringing it to the House for our approval today. I support the passage of the Bill.

Senator Dominic Hannigan: Information on Dominic Hannigan  Zoom on Dominic Hannigan  I welcome the Minister of State. I also welcome this rather curious legislation which essentially clears out many thousands of private statutes and local and personal Acts that have fallen into obsolescence and irrelevance during the years. It is an extraordinarily diligent piece of work to have to go through in excess of 10,700 Acts. I compliment the Attorney General and his staff on the work done. I also congratulate Dr. Richard Humphreys who is present in the Visitors Gallery on the effort he has put in and what he has achieved in the legislation.

As the Minister of State pointed out, this is another stage in the work that began with the Statute Law Revision Act 2007, dealing with public Acts. The body of legislation before us today includes private, local or personal Acts, which are not really a feature of our system nowadays. It is a reflection of the evolution of our parliamentary system and governance generally that a great deal of regulation that used to be engaged in directly by Parliament in earlier times is now exercised by a host of other agencies. This is the case with, for example, company registration and the naturalisation of foreigners. I note that one such Act dating from 1726 dealt with the naturalisation of a certain George Frederick Handel. Even the marriage of certain citizens and making children legitimate are matters included in previous Acts.

The statutes being repealed relate to a period well before we attained our independence. It is interesting to look at the long list involved because it gives a sense of the social and economic life at the time the measures were enacted. For example, one Act relates to “Weirs upon the Boyne”, which was passed in 1537. Another Act dating from 1569 deals with “Uniting of the See of Clonvicknoishe with the See of Meath”. Another Act from 1747 dissolved the marriage of Georges Lowther, Esq., of County Meath with Judith Usher to enable them to marry again. [382] I spotted also an intriguing enactment from 1662 providing for the raising of £30,000 for the use of the Duke of Ormond. We would never imagine now that a politician or public figure would have a Bill drawn up specifically to allow him or her to raise a bit of money. That would never happen these days, or perhaps it is best not to go there.

Our Cork colleagues will note with interest a 1703 enactment which provided for cleaning of the channel of the harbour of Cork, and may wonder why the Attorney General feels so confident in repealing a measure for which there may after all be some continuing necessity. Perhaps Senator Boyle will address that.

Colleagues may amuse themselves by looking down through the lists set out in the Schedules, which really give one a flavour of the times and a sense of what preoccupied people in times past. However, is does occur to one while reading the material that the laws were largely for one class, the landed gentry. Presumably these were people who could afford to have laws introduced in Parliament to address their concerns and problems. We have moved on somewhat from those times and most people would be surprised at the notion of a person’s private issues appearing on the Order Paper for any Parliament in a modern democracy. It would be anathema to our idea of what a Parliament should be.

One could also argue that the rich and powerful nowadays have a more sophisticated way of achieving their objectives. They do not need private Acts of Parliament to get their way. Events of recent years in which some public representatives allowed themselves to be used and corrupted by private interests spring to mind. It could be argued that yesterday’s budget, or the NAMA bailout, while ostensibly being in the common good, are in reality measures in the interests of a relatively small but highly influential section of our society.

I have no difficulty in welcoming this Bill on behalf of the Labour Party. It will make life much easier for people who are unsure whether certain rather ancient Acts still have legal effect. It will simplify things for lawyers and may even mean we need fewer of them. I commend the people involved for going through all the relevant material in such a careful and scholarly manner. I will be supporting this Bill.

Senator Dan Boyle: Information on Dan Boyle  Zoom on Dan Boyle  I will not detain the House long. This Bill, which is the third in a series of similar Bills to come to the House, is to be welcomed. The aim is to clean up our Statute Book and remove superfluous legislation. The introduction of the Bill is an important action for the Government to take and part of a valuable process. While detailed in its scope, the Bill is mainly a listing of all Acts to be excised as a result of its passage.

Most of the interest is in the historical nature of the Bill and the activities of predecessor Parliaments. I note that the Irish Parliament, before the Act of Union, engaged in much citizenship work, naturalising quite a number of citizens. There even seems to have been a version of NAMA in 1748, when Viscount Dillon’s estates in Mayo and Roscommon were sold for the payment of debts, which seemed to exercise people greatly at the time. Many of the Acts instituted after the Act of Union in 1801 affect this country only indirectly, and those have been superseded by other, more detailed Acts.

I note Senator Hannigan’s comments about the cleaning of Cork Harbour. I am not sure whether that would solve any of the current difficulties. In view of the fact that we have just had a meeting with the ESB about Inniscarra dam and how we can prevent future incidents of flooding, it would be more in order for this and our sister House to consider what legislative means, as well as appropriate resources, are required to prevent events such as have occurred in recent weeks.

[383]I welcome the Bill and look forward to the completion of the process. We are doing the country a service in creating a canon of law that is more logically structured and reflective of the needs of our current citizens. I thank the Minister of State for introducing the Bill to the House.

Minister of State at the Department of the Taoiseach (Deputy Pat Carey): Information on Pat Carey  Zoom on Pat Carey  I thank Members for their contributions. The Bill, if nothing else, is an interesting and absorbing study of past legislation, but it does encompass an important principle: that we establish our own statute law here.

A question was asked about the continuation of the project. We are committed to doing that but, like everything else, it must be done within the available resources. We will see how it can be done.

With regard to the Bill pertaining to the cleaning of Cork Harbour, I understand it was one of those that was lost in the conflagration of 1922.

Senator Paul Bradford: Information on Paul Bradford  Zoom on Paul Bradford  Nice terminology.

Deputy Pat Carey: Information on Pat Carey  Zoom on Pat Carey  I suppose it is a case of getting rid of the evidence. Like others, I thank the team in the Office of the Attorney General and the Taoiseach’s office for the work they have done. This process was initiated under the previous Attorney General, Rory Brady. He and Richard Humphreys, who is in the Visitors Gallery, did an extraordinary amount of work and I thank them for their commitment, dedication and scholarly endeavour which will stand the test of time. If ever a Member needs really interesting information for his or her constituents, it is worth looking at the website of the Attorney General which details matters pertaining to every county. I thank the House for supporting for the Bill.

Question put and agreed to.

Bill reported without amendment, received for final consideration and passed.


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