Statute Law Revision Bill 2012: Second Stage

Wednesday, 16 May 2012

Seanad Éireann Debate
Vol. 215 No. 8

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Senator Lorraine Higgins: Information on Lorraine Higgins  Zoom on Lorraine Higgins  I move: “That the Bill be now read a Second Time.”

Acting Chairman (Senator Paschal Mooney): Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  I welcome the Minister of State to the House.

Minister of State at the Department of Public Expenditure and Reform (Deputy Brian Hayes): Information on Brian Hayes  Zoom on Brian Hayes  I have had to come to the House so often in the past few days that I am reminded that I spent five years trying to get out of the House.

[441]Senator Denis O’Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  It might be a safety net.

Deputy Brian Hayes: Information on Brian Hayes  Zoom on Brian Hayes  That is up to the voters.

  2 o’clock

It is a pleasure for me to bring the Statute Law Revision Bill 2012 before this House. I contributed actively to the debate on a previous Statute Law Revision Bill in 2007 when I was privileged to be a Senator and I recall the substantial debate and cross-party welcome on that occasion for the important work of statute law revision. The officials in a number of Departments have been working on revising the statute law in this area for some time. The Bill is another phase of that work. It is appropriate to acknowledge the extraordinary work they have done to ensure we modernise, codify and bring up to date the legislative code before the foundation of the State.

Statute law revision concerns the removal of obsolete legislation from the Statute Book which is no longer relevant or whose purpose is exhausted, or which has ceased to be in force otherwise than by reason of express repeal. This Bill is being brought forward on behalf of the Minister for Public Expenditure and Reform further to the commitment made in the programme for Government to progress the statute law revision project in order to enhance public accessibility to the Statute Book.

The Bill identifies 796 Acts which are not suitable for repeal at this time and will be retained on the Statute Book. It will repeal all other legislation within its scope. It proposes expressly to repeal 2,983 Acts in total, including 1,358 obsolete local and personal Acts and 1,625 private Acts, while implicitly repealing 18,953 local and personal and private Acts. If the implied repeals are included, the Bill is the largest and most extensive repealing measure not only in the history of the State but also the most extensive single statute law revision measure ever brought forward in any jurisdiction.

This Bill which deals with local and personal Acts from 1851 to 1922 and private Acts from 1751 to 1922, is the final element of the review of primary legislation enacted prior to Independence and as such clears the way for my Department to proceed to review the large body of secondary legislation that pre-dates Independence.

“Private Acts” are those concerned with the affairs of a single individual or body. They are enacted under a different procedure from that used for public and general Acts. The private Acts listed in the Bill include many naturalisations, divorces and provisions in relation to certain landed estates. “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. In addition, it should be noted that prior to the enactment of company registration law in 1844 and the introduction of limited liability for companies in 1855, most commercial companies were incorporated by an Act of Parliament.

The statute law revision project has now assessed all 60,000 pieces of primary legislation enacted prior to Independence, of which 22,885 come within the ambit of this Bill, of which 153 were found to be already repealed. Of the 60,000 statutes, approximately 40,000 were identified as not having applied to Ireland. These Acts, though not listed in Schedule 2, have been implicitly repealed by virtue of their exclusion from Schedule 1. Of the 20,000 Acts identified as applicable to Ireland, approximately 10,000 were found to have been repealed already, leaving 10,000 Acts of potential ongoing relevance to be assessed. Of the 10,000 Acts with potential ongoing relevance, the Bill when enacted and its predecessors will have repealed approximately 7,800. The remaining 2,200 Acts have been assessed as not suitable for repeal and each have been listed for retention in Schedule 1 to the Bill or in the relevant Statute Law Revision Acts 2007 and 2009.

[442]I wish to outline to the House the major provisions of the Bill. Section 1 provides definitions of “statute”, “local and personal Act” and “private Act”. The definitions of the series of statutes are necessary to distinguish them from statutes of a public general nature which are not affected by the Bill. It should be noted that the definitions relate only to statutes and therefore do not include charters of a local and personal or private nature. Such charters are not revoked by the Bill. Charters in the nature of public general Acts are, however, included.

Section 2 is the central feature of this Bill. It provides for fundamental clarification and simplification of the Statute Book by drawing a line at Independence on 6 December 1922 and repealing all Acts passed prior to that point, with three exceptions. The first exception comprises those Acts listed in Schedule 1, which sets out a list of local and personal Acts from 1851 onwards and private Acts from 1751 onwards that were passed before Independence in 1922 and which are still relevant. The second exception comprises pre-1851 local and personal Acts and pre-1751 private Acts retained by the Statute Law Revision Act 2009 by virtue of their inclusion in Schedule 1 to that Act and which were not subsequently repealed. The third exception comprises pre-1922 public general Acts that have already been saved by Schedule 1 to the Statute Law Revision Act 2007 and which were not subsequently repealed.

Section 3 provides, for information purposes, a list of all statutes repealed by section 2. It is based on section 3 of the 2007 and 2009 Acts. This section proposes to list the specific Acts identified in the course of the review as being unnecessary or as being spent or obsolete. These obsolete Acts will be listed in Schedule 2 to the Bill. This section is not a repealing section, as the repeal is effected in section 2.

Section 4 will assign a Short Title to any Act saved by section 2 which does not already have a Short Title. This section is based on section 4 of 2007 and 2009 Acts.

Section 5 makes provision for the amendment of certain unconventional or inappropriate Short Titles in respect of Acts saved by section 2, in order to facilitate the citation of those Acts. This section is based on section 7 of the 2007 Act and section 5 of the 2009 Act.

Section 6 provides for the standard saving clauses. Sections 6(1) and 6(3) are similar to the corresponding subsections in section 9 of the 2007 Act and section 6 of the 2009 Act. They are standard forms in Bills of this nature. For clarity, as with the previous Acts, reference has also been inserted to the “application” of statutes to the State to ensure the saver clause is wide enough to preserve statutes which have been applied to Ireland by statutes repealed by this Bill. Section 6(2) 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. It corresponds to section 9(2) of the 2007 Act and section 6(2) of the 2009 Act.

Section 7 provides for the remedying of an omission in the Adaptation of Enactments Act 1922. This provided for the automatic adaptation of pre-1922 statutes with a power to make further adaptations by order. The definition of pre-1922 statute was couched in terms that applied only to Acts of the Parliament of the “United Kingdom of Great Britain and Ireland” and did not apply to Acts of the Irish or English Parliaments or the Parliament of Great Britain — that is, the Parliament after the union with Scotland. The amendment rectifies this omission. I am sure that meets with the approval of all sides of the House.

Section 8 provides for a Short Title and collective citations. This is a standard provision and is equally based on the 2007 and 2009 Acts.

Schedule 1 provides a list of pre-Independence statutes for each period concerned which are not being repealed. Those periods are from 1 January 1751 to 6 December 1922 for private Acts and from 1 January 1851 to 6 December 1922 for local and personal Acts.

[443]Schedule 2 lists the Acts specifically repealed by the Bill covering the same period of time as those in Schedule 1. The Acts listed in Schedule 2 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 that do not relate to Ireland, or have only an exceptionally minimal connection with Ireland, will not be included in Schedule 2 but will be implicitly repealed by virtue of the general repeal provision in section 2. Accordingly, this approach, which was also adopted in the Statute Law Revision Acts 2007 and 2009, will improve clarity as to the repeals relevant to Ireland and provide greater transparency with respect to relevant repeals.

Having regard to the volume of legislation involved and the careful analysis given to each Act, it is clear that this Bill is the culmination of significant work for those involved. I thank the researchers and management of the statute law revision project, as well as the staff of the Parliamentary Counsel and the Office of the Attorney General for their dedicated work on this Bill. As I said, this extraordinary piece of work has spanned the terms of a number of Governments over a ten-year period, culminating in the Bill before the House and the two previous Acts I have mentioned. It has required meticulous research on the part of those who have worked to bring our statute revision up to a standard which is well beyond what other Parliaments have provided for. I congratulate all concerned for that work.

I would like to acknowledge the indispensable assistance provided to the State by the UK parliamentary archives at the House of Lords and the House of Commons in Westminster. Over a number of years, the parliamentary archives have kindly lent the statute law revision project various texts of Acts which are not available in any form in Ireland. When project members travelled to the archives last year to view specific texts on site, they were provided with every assistance by the staff there. In extending my sincere appreciation to the staff of the UK parliamentary archives, I acknowledge that without their generous and public-spirited assistance and co-operation, it would not have been possible to produce this Bill. The project staff also received texts of Acts and valuable assistance and co-operation from the Honourable Society of King’s Inns, the Oireachtas Library, the National Library and the National Archives. I wish to express my gratitude to those institutions for their support and assistance.

Ireland’s unique legislative past has left us with a complex stock of legislation with enactments from the Parliaments of Ireland, England, Great Britain and the United Kingdom of Great Britain and Ireland. The importance of simplifying this complex stock was noted recently by the OECD in its 2010 review of better regulation in Ireland, which reported that initiatives such as the Statute Law Revision Acts were impressive efforts to address this challenge and to improve accessibility and understanding of the law. This Bill, in tandem with the Statute Law Revision Acts 2007 and 2009, constitutes the most extensive set of repealing measures in the history of the State. As far as the Office of the Attorney General is aware, it is the most extensive statute law revision programme ever undertaken anywhere in the world. That is a large claim to make. I am sure the authorities in some country will pop up and say they did a more extensive trawl. We should make the claim anyway.

These repeal proposals were developed following a rigorous research and consultation process. All of those interested in the proposals, including members of the public, were given an opportunity to contribute their views. The process of statute law revision will help to simplify and modernise our law and make it more intelligible. It will save time and costs for lawyers and others who need to know what the law actually is. It will make it easier for citizens to access justice. The Bill, when enacted, will achieve the following — facilitate the process of regulatory reform; ensure that the Irish Statute Book is significantly more modern and enhance public accessibility to the Statute Book in line with the programme for Government commit[444]ments; facilitate future legislative measures to repeal, re-enact, where necessary with amendments, and consolidate the statute law of the State; assist the Law Reform Commission in its task of preparing the legislation directory; and enable, for the first time since the foundation of the State, the compilation of a complete list of all primary legislation up to Independence that has not been repealed.

I am satisfied, from the significant work undertaken by the statute law revision project, that the Acts specified in Schedule 2 to this Bill are now either spent or obsolete. It is time to remove this legislation from our Statute Book and take another step towards the ultimate aim of a clear and concise Statute Book which reduces the regulatory burden on business and enhances accessibility for the general public. I commend the Bill to the House.

Senator Denis O’Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  Seldom will a piece of legislation come before the House that will have so much support and lack of objection from the Fianna Fáil benches, either technically, politically or otherwise. There is no cause for such objection. We wholeheartedly support this revision, consolidation and repeal of certain obsolete pieces of legislation. I searched the Schedule for an example of some of the Acts we are repealing. With regard to 1779-80, the time of King George III, the Bill refers to “Enabling William Sherlock, Esquire, to make leases, and to charge portions for his younger children, and for other purposes”. Such an item is a clear example of matters that should not trouble us any longer in this State.

It is amazing that, when this Bill is enacted, the total number of repeals will rise to almost 8,000, together with an additional 40,557 Acts which were deemed inapplicable or implicitly repealed by the legislation — an astonishing statistic. While it is probably an academic exercise, as the Minister of State pointed out, great research and painstaking work was put in by the officials, and the Minister also thanked the House of Lords and the archives service at Westminster, which it is important to acknowledge.

I come from the old school of law. When I was studying law initially in UCC so many years ago that I would hate to put the year on record in case I would be seen to be older than I look——

Deputy Brian Hayes: Information on Brian Hayes  Zoom on Brian Hayes  It was not pre-Independence anyway.

Senator Denis O’Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  It was not that far back. In first year law, we were obliged to take two non-law arts subjects. I chose Latin, because I was relatively good at it, and modern history, because of the lecturer at the time, the great Professor John A. Murphy, who was subsequently a Member of this House and who is still alive and well. We had our arguments due to our political differences but they were friendly fire. In those years, I studied Roman law, which was interesting, although I do not believe it is now on any curriculum in the Irish universities, and also ancient legal history, which included cases, jurisprudence and so on. My niece was recently studying for her FE1, the Law Society entrance exam, and if I told her stories like that, she would certainly believe I was much older than she ever thought I was. That was the way things were at the time.

It is important to reflect on this when enacting laws. We think we are modern and far advanced but if we look at the Brehon laws or Roman laws, or go back to the Stoics and the Sophists, we must ask whether our system of justice has really advanced in great strides. We think we have, but if the old Roman laws had been in place in recent times for the banking crisis and the political crisis, many of those involved would have been beheaded. There are many people out on the streets who would nearly wish for that again, but we have moved on.

[445]I was not aware that until relatively recently there was an obligation on every citizen of Ireland to own a bow and arrow and to practise archery, although this has been withdrawn. Equally, I never realised where the word “pillory” came from until I discovered the now obsolete Act dealing with pillory, the act of locking someone into stocks so they could be pelted with tomatoes — we learn something every day. Other legislation dealt with the regulation of children who worked as chimney sweeps. As coal is seldom burnt any longer, perhaps we should send some of that legislation to China, where there are many coal burning facilities. The Adulteration of Coffee Act imposed a £20 fine on “evil disposed persons who have at the time or soon after the roasting of coffee made use of water, grease, butter or such like materials, whereby the same is rendered unwholesome and greatly increased in weight”. The Adulteration of Tea Act was passed in 1776, two years after the Boston Tea Party which triggered the American revolution.

This is of only historical benefit. As I said at the outset, I welcome the legislation. In conclusion, I make a point which is perhaps most appropriate to the Minister, Deputy Shatter, namely, I have always sought as a Deputy and Senator that we should work towards the codification of criminal law, even if only up to the year 2000. I accept much work has already been done in this area. It is relevant for anyone going to court in regard to road traffic or other offences and, while it is not the most urgent priority, the Minister might explain the position with regard to codification of statutes, particularly in the area of criminal law.

The Minister of State, Deputy Brian Hayes, has our full support in this regard. There will no demand for a vote on Second Stage and it is unlikely on the other Stages also.

Senator Tom Sheahan: Information on Tom Sheahan  Zoom on Tom Sheahan  I welcome the Minister of State and reiterate his point regarding the work that has gone into this Bill. Over the weekend, I gave the Bill to a solicitor friend of mine and the comment he made was “about time”. As alluded to by my esteemed colleague on the other side, much of the legislation being updated is obscure and irrelevant. I appreciate the painstaking work done and the time that has been required to bring the Statute Book up to date.

Do I take it this will be a continuous, ongoing process given I do not believe the Statute Book will be updated in one fell swoop? Will the legal profession be involved? I have been asked whether there will be consultation with it in the future. Having its input would make for better legislation. As Senator O’Donovan has said, this revision is long overdue and it is good that both sides of the House welcome it. We look forward to dealing with the legislation as briskly as we can.

Senator Feargal Quinn: Information on Fergal Quinn  Zoom on Fergal Quinn  I welcome the Minister of State to the House again. He is obviously getting very fond of us. Touching on something Senator Sheahan said, I remember a similar Bill to this just a few years ago, in 2009. Review is ongoing and we need to do it every so often.

It was interesting to hear Senator O’Donovan talk about learning Latin. I met an American lady the other day who asked about my children and mentioned that I had encouraged them all to learn Latin. She responded that this would be very useful if they ever visited Latin America.

I am delighted with this Bill and am delighted these steps are being taken. As Senator Sheahan said, review should be ongoing. In 1971, I had the pleasure of ending up in court and winning a case, based on an Act introduced in 1938, that related to shop closing hours. I won my case, but the State appealed against me because the Act had been in existence from 1938 until 1968 or 1969. The issue went to the Supreme Court and again I won the case there. This was one of the few Acts with which I got involved. I learned constitutional law in college as part of my commerce degree and little thought I would ever use it. However, I used it in this particular case. Article 44 found that any legislation passed that discriminated on the grounds [446]of religion was unconstitutional. The statutory instrument that provided that all butcher shops should close at 6 p.m. had excluded shops that sold kosher meat under the Jewish ritual method of killing and on that basis, I was able to find that the shop closing hours legislation was unconstitutional.

This legislation is a welcome piece of housekeeping that gets rids of laws that may cause confusion and demonstrates that we should not wait hundreds of years for the next clean up. It was interesting to hear Senator O’Donovan talk about some of the laws that existed. I would like to discuss the issue of reviewing laws in a more general way. We could follow the example of Germany, which conducts what it calls “spring clean ups” on a much more regular basis. Recently, it reduced approximately 2,000 laws to approximately 1,700. The Federal Ministry of Justice, the Parliament and the Cabinet there collaborate to write new orders and codes and to revise the old ones. Since 1976, they have created new codes of administrative law and have modernised the civil and criminal code. German laws use an open textured language of flexibility that also guides solutions to future problems, rather than the language of micro regulation more common in American law and in our laws. Section 242 of the German civil code is famous for how it tempers the code’s rules with the general obligation of what they call “good faith”. We all talk about making the Oireachtas more accessible to citizens and there have been calls to write laws in more simple and accessible language. However, the lawyers have always argued that we need complicated language in order to guard against misinterpretation. The German example however seems to work well.

We must also remember that the OECD regulatory reform programme encourages EU member states to conduct housekeeping of old laws, based on economics. It also encourages them to create new permanent high level government institutions to conduct economic policy reviews of both old and new laws to ensure that the economic burden of laws and regulations never outpaces their social utility. We do not have this function in Ireland, but it is needed. We need it to look at laws and see how they affect issues like business and the economy. In Germany, the national regulatory control council, which provides such a function, reports on the fifth anniversary of its establishment that it has saved Germany nearly €12 billion in unnecessary costs. Therefore, one of the reasons for us to do this is to reduce our costs.

The amount of red tape and bureaucracy involved with dealing with old laws makes things very difficult. I mentioned before that I was in Panama a few years ago. Panama wanted to become the country most attractive to new businesses and it aimed to establish the shortest timeframe for the setting up of a new business. I thought the target would be a few days, but it was seven hours. I do not think Panama has achieved that and I believe Singapore and Hong Kong have remained quicker, with a set up time of a few days. However, this example is a reminder that we can do something about the amount of bureaucracy and red tape that attaches to our legislation. One of the easiest ways to do that is through what is being done today, reviewing and abolishing old laws and ensuring we become a more attractive place in which to start a business.

Senator Lorraine Higgins: Information on Lorraine Higgins  Zoom on Lorraine Higgins  I welcome the Minister of State to the Chamber and thank him for his detailed and informative submission in which he went through the provisions of the Acts. It was good to hear their relevance to today’s debate.

I welcome the opportunity to lead this debate on behalf of the Labour Party group in the Seanad and to contribute on such an important piece of legislation. As legislators, we have a tendency to add laws to the Statue Book, but rarely do we remove any. On that basis, I commend the Minister of State and his Department on this legislation. As he claimed in his speech, this is the most extensive statute law revision ever attempted anywhere. We can be [447]proud to undertake this course of action as it marks us out as reformers in the true sense of the word. It is clear that a great job has been done in combing through the Statute Book for material which should no longer be there. I understand that throughout this process a number of Bills have come through the House in previous years in this regard and that in total, approximately 8,000 Acts have been identified for repeal. Together with these, some 40,557 Acts have been automatically repealed by the legislation.

Along with the Office of the Attorney General, the Minister and his Department have outlined a purposeful project to review all legislation on our Statute Book and to repeal any legislation that is spent, obsolete and no longer of practical use. As a barrister — I think I speak for most members of my profession on this — I welcome this development. At least, now I do not have to worry about some ancient, archaic law tripping me up in the courtroom when fighting a case. This is welcome. More seriously, the Statute Law Revision Bill 2012 is designed to repeal all such obsolete Acts, such as the Local and Personal Acts enacted between 1851 and 1922 and private Acts enacted between 1751 and 1922. This constitutes almost 3,000 obsolete laws which were passed before Ireland gained independence. It is part of an earlier programme undertaken by the last Administration in 2003, whereby 5,000 obsolete Acts were eliminated.

As with earlier phases, this Bill has been widely canvassed and accompanied by a consultation process with the various Departments, local authorities and other relevant companies, bodies and organisations. Some of these laws date back to 1542. While these are completely obsolete, they have enjoyed the full force of law, notwithstanding their age and the fact they were designed for a different era. One might question why these laws survived our independence from the British Crown. However, by virtue of an Act passed in 1922, many ancient laws were transposed into Irish law. While we might be thankful that time has moved on, in legal terms it has not, until now. The Schedule to this Bill contains a comprehensive list of both the Acts to be repealed and those to be retained. In particular, Schedule 1 contains those Acts which continue to have some relevance and are provisionally proposed for retention, because they have been identified as neither wholly spent nor wholly obsolete. Schedule 2 contains a list of Acts which when enacted, or subsequently, have had some relevance to Ireland but are provisionally being identified as wholly spent or wholly obsolete and, therefore, suitable for repeal.

For instance, some of the laws which are to be scrapped relate to the removal of the 700-year old obligation for every citizen of Ireland to own a bow and arrow and to practise archery, as mentioned by Senator O’Donovan. The Act concerned with locking people into stocks so that they could be pelted with tomatoes is another Act to be repealed, as are the private divorce Acts, which are obsolete in light of our judicial divorce Acts of 1996, and the statutes relating to conferring of citizenship on non-nationals, where Ministers had no power to confer naturalisation. This had to be done by Parliament. While I have outlined only some of the Acts to be consigned to history, this Bill will also specify approximately 780 old Acts which are to remain in effect. These include the Saint Stephen’s Green (Dublin) Act 1877, which formally opened the green to regulated public use, and the Dublin Science and Art Museum Act 1877, which formally established the entities now known as the National Museum of Ireland and the National Library of Ireland.

As well as shedding light on Ireland’s economic, social and political life this constant renewal of legislation saves time and money. Our Parliament passes laws to deal with current circumstances and when these circumstances no longer apply the legislation should cease to apply immediately. It is important that we remove legal deadwood from our Statute Book to facilitate a process of regulatory reform. A modern democracy requires us to replace outdated legislation with laws that are passed by the democratically elected representatives of the people. Obsolete [448]laws have survived for too long because of the belief that they were not causing any harm. That is where people are wrong, however. Many of these archaic laws have frustrated the legal and judicial system and hampered its efficient operation because of the time legal practitioners were required to spend in the Law Library to determine the legal standing of a particular point. This Bill reflects the Government’s agenda for better regulation. I thank everybody who has worked on this Bill and I commend it to the House.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  While I commend the Minister for bringing this Bill before the House, I do so with reservations. It may be quaint to ponder life in the 1800s and the legislative cures required at the time but I question the Bill’s value in improving the accessibility of legislation for those who need to consult the law today. I acknowledge the work that has gone into this Bill and other statute law revision Acts in recent years but the fact remains that it is a rather grand academic exercise. The bulk of the laws governing Irish society today were introduced in the past 50 years. Repealing or retaining a specific list of pre-1922 statutes may constitute good housekeeping but it will do nothing to make the law more accessible. Statute law revision is a luxury we cannot afford. If the Statute Book can be compared to an old and dilapidated house, instead of spending money on careful restoration we are spending it on the equivalent of a lavish swimming pool.

The problems individuals experience in understanding legislation can be revealed from a random examination of virtually any area of the law. For example, the legislation directory entry for the Roads Act 1993 reveals that it has been amended more than 170 times by 12 or 13 different Acts. Anyone who wants to understand the law in that area must grapple with these latter Acts. The Freedom of Information Act 1997 has been amended more than 100 times by a multitude of Acts. These are not isolated examples.

Some of the big law firms around town charge €300 or €400 per hour. When a client approaches them with a legal query, one of the first things they must do is identify the law applicable to the problem. This is no easy task because, as my colleagues will be aware, legislation on any given matter can be found in a principle Act and layer upon layer of amending Acts. To understand the current law the reader has to piece together the principle Act along with all the amendments. This can take a lot of time and when one is paying a solicitor by the hour it adds up to a considerable sum simply to understand the legislation. I hazard the guess that hundreds of thousands of euro, at a minimum, are paid to lawyers every year by individuals and businesses trying to figure out the law. That hardly makes us a competitive economy. This cost does not even take account of the amount of time Departments and State bodies spend on trying to understand the legislation which governs us. The Minister of State need not take my word that Irish legislation can be impervious to the most diligent lawyer, never mind the layperson. This is recognised by the review of better regulation in Ireland published by the OECD in 2010, which states:

Our legal system relies heavily on the principle that ignorance of the law is no defence. In practice this means that a person who is charged with an offence cannot claim in court that he or she was unaware that the law prohibited his or her action. In theory this presumes that citizens know every section of every Act or statutory instrument but if we are to sustain this principle we must do more to make the law accessible to citizens. As matters stand, Acts are [449]published only in their as enacted form. When we pass a Bill amending pre-existing law it simply adds another layer onto the original law. No effort is made to incorporate the new law into the old law and republish it as amended. Several countries have moved to a system of making laws as amended available online.

The Law Reform Commission has for several years been driving the statute law restatement project, which it produces versions of selected laws in their amended form. I commend the commission for its work in this regard but a severe lack of funds mean that it is only able to tackle a tiny portion of the legislation in force.

The unavoidable conclusion of an examination of the current situation is that one side of the Office of the Attorney General, the statute law revision team, is spending years tidying the Statute Book, while the legislative drafting side is applying its industry to foster incoherence and inaccessibility by persisting with the old approach of amendment heaped on amendment, combined with inadequate publication. Approximately 3,300 post-1922 Acts are on the Statute Book. In these days of limited resources we should focus our efforts on making those Acts more accessible. The State needs to work towards the development of a database of revised statutes which would contain legislation in its in force condition, incorporating the effect of all amendments while omitting spent Acts or repealed provisions. By removing the deadwood and reflecting the effect of amendments, the publication of revised statutes would vastly improve the accessibility of legislation. This has already been achieved in other countries, as was pointed out by the Law Reform Commission in its report on the legislation directory. Out of the 33 European legal systems it examined, 27 had at least one official collection of consolidated texts of legislation and 25 made their collections available on-line.

For these reasons I commend the Bill but question the value of an exercise focused on repealing or retaining pre-1922 statutes when the post-1922 Statute Book is in such a poor and inaccessible state.

Senator Cáit Keane: Information on Cáit Keane  Zoom on Cáit Keane  With the exception of Senator Mullen, every speaker in this debate welcomed the Bill. As a layperson who is somewhat familiar with legal terminology I agree with anything that makes the system more accessible. The Senators who have practised as lawyers pointed out that their work is made easier if they know they will not be tripped up by legislation that has been on the Statute Book since 1800 and is no longer relevant. In repealing these Acts, any rights, privileges and obligations that were inherent in them will be carried over in amendments to new Acts. The Bill does a service to the public, although it may do a disservice to barristers and solicitors who want to charge a mountain of money for going through 2,000 documents. That is going to change. I presume solicitors and barristers have a problem with that but, as a lay person, I have no problem with anything that makes it easier. Is an attempt being made to get the repealed Acts online for research purposes? We know how easy it is to scan material and put it online, even if it is time consuming. That would facilitate the research suggested by Senator Mullen and I recommend it. He said that 27 of the 33 countries surveyed by the Law Society have such a facility. If it is not in place, we should examine doing it.

This step was taken in 2007 but it strikes me that this is the most extensive statute law revision programme attempted anywhere in the world. For the first time, it enables the compilation of a complete list of all pre-Independence primary legislation relevant to Ireland that is still in force. That is a historic day for Ireland and I commend the Minister of State and particularly the staff in the Office of the Attorney General and elsewhere. They pored over and analysed 22,855 statutes. I am indebted to the Oireachtas library and research service for the research; I did not do it. There are no Exchequer cost, staffing or other implications following the enactment of the Bill, which will produce savings in legal and business costs. We sometimes [450]hear criticism of civil servants for not doing work but there is no extra cost in this case. It will produce savings in legal and business costs. Savings in legal costs are always welcome. I note the South Dublin Railway (Abandonment) Act of 1879. I am sorry that we lost the infrastructure, rather than the legislation, because the old tramway passed by my house. We had 60 miles of it from the beginning of 1879. We have repealed the legislation but perhaps we could put tramways there again.

Senator David Cullinane: Information on David Cullinane  Zoom on David Cullinane  I welcome the Minister of State to the House again. The arrival of this Bill in the Seanad marks the completion of an important job of work by the Office of the Attorney General. It took almost a decade to complete and I pay tribute to the office and its staff. What has been achieved is no mean feat and the Office of the Attorney General must be commended. I hope the Minister of State passes along the gratitude of all parties in the House. It is a remarkable and unique item of legislation and I do not envy those whose task it was to conclude that the Clanricardes Estates Act 1770 ought to be preserved but the Limerick and Ennis Railway Act 1870 ought not. These are the choices they had to make.

Legal certainty is essential; it is a cornerstone of the law. Perhaps one of the most well-known passages from a legal text is Lon Fuller’s allegory of King Rex, contained in The Morality of the Law, in which the hapless fictional monarch attempts takes it upon himself to improve the law of the land. The Minister of State might like the story. One of the ways in which he fails is because his subjects cannot keep the law as they are not aware of what they are required to do under it, as the law has not been published or promulgated. Another problem is that the law is unreadable, excessively complex and obscure. He illustrates what he considers certain routes of failure for any legal system. A lack of certainty and clarity on the law is one such route and the purpose of this Bill is to bring clarity and make it easier for us all. Clarifying of the Statute Book is helpful and adds to the clarity of property law and land law in particular.

However, I wish to raise some concern about the manner in which the project was carried out and the apparent dearth of resources in the Office of the Attorney General. It is alarming that the statute law revision project would not have been completed were it not for the retention of interns from the work placement programme and JobBridge national internship scheme. The Attorney General is perfectly entitled, and ought be encouraged, to give young graduates a valuable opportunity to gain experience in such a key project, notwithstanding my very clear concerns about the manner in which the JobBridge programme operates. However, as legislators it would be reckless of us not to question the decision of the Executive to pare back resources in the Office of the Attorney General. Responsibility for this dates to the previous Government. A project such as this should not rely almost entirely on graduates.

The regulatory impact analysis of the Statute Law Revision Bill of 2009 correctly acknowledged the impact of not proceeding with the project. The lack of a coherent list of all statutes in force in the State would have financial implications for the public purse. Time is money and, in the absence of a complete revision of old obsolete legislation, time continues to be wasted researching and sifting through the potential impact of such Acts. This would also be an unnecessary cost for the legal fraternity and associated service providers. The regulatory impact analysis warned that the lack of a coherent Statute Book could affect foreign inward investment if the regulatory impact is difficult to comprehend or ascertain. In addition, the benefit of the Exchequer funds already invested in the initial phases of the statute law revision project would not be achieved if the project was not completed. This would not reflect well on the State’s commitment to regulatory reform. We are all conscious of this because of the failure of regulation over the past number of years. Once begun, it would have been extremely foolish and wasteful not to complete the programme. Completion of the project will have positive impli[451]cations for quality regulation, employment, industry and small business in that the proposals will assist in reducing the regulatory burden for users of the Statute Book, including business users, and will provide legal certainty. It will be an improvement for ordinary citizens who come in to contact with the law.

This was quite clearly the view of the regulatory impact analysis also. Completion of the statute law revision programme would simplify the Statute Book and reduce legal and business transaction costs. In 2010 the project stalled due to Government cuts to the budget of the Office of the Attorney General. By the end of 2010 the Attorney General, in an effort to complete the project in the face of increasing cuts to resources and staff, decided to recommence the project on a greatly reduced cost achieved using the JobBridge national internship scheme.

This is an important project and I commend those involved. I commend the Minister of State on introducing the Bill. It is possibly one of the most comprehensive Bills even though some people question whether it is important. The need for proper regulation and a clear understanding of the law means it is worthwhile work.

Senator Paul Bradford: Information on Paul Bradford  Zoom on Paul Bradford  I welcome the Minister of State to the House. He was a Member of the Seanad during the debate on the 2007 Act.

Deputy Brian Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Yes, I took it for our side.

Senator Paul Bradford: Information on Paul Bradford  Zoom on Paul Bradford  There is life after the Seanad.

Deputy Brian Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Just about.

Senator Paul Bradford: Information on Paul Bradford  Zoom on Paul Bradford  If I checked the Official Report, I am sure I would find my contribution to this process in 2007 and 2009. I will probably make the same meandering contribution now. It is an interesting item of legislation and, as the previous speaker said, a major amount of physical work goes into the compilation of the constituent elements of the Bill. There is a lesson here for parliamentary democracy, the law of the land, law and order and the proper running of the State. We now claim to live in a very modern Republic.

The legislative process through the Houses of the Oireachtas and to the President is lengthy. In so-called far less advanced times, parliamentary intervention was a frequent occurrence and hopefully on many occasions it righted wrongs and brought clarification in answer to doubt. These thousands of Acts and orders which have been examined cover the length and breadth of the country and deal with all possible subjects. I note, for example, lists of hundreds of people who had applied and were accepted for naturalisation. The current naturalisation process may be regarded as lengthy yet the process has been on the Statute Book for hundreds of years.

I commend all those involved in the detailed work which is tedious, slow and laborious. This work has updated as much as possible the appropriate laws and will make it easier for all legal practitioners to give the appropriate advice.

As Senator Cullinane noted, there are many problems facing the country and people may ask why so much time and effort has been expended on this project but it is a necessary part of the tidying up process which is now complete. A total of 22,885 statutes were analysed, 3,000 are under consideration here and presumably the other statutes are not relevant or cannot be acted upon. This progress in bringing the Statute Book up to date is welcome and there will be no political division. The history and politics buffs such as the Minister of State will find a great amount of fascinating material contained within the Bill and of interest to every townland and parish in the country. It could serve as bed-time reading for people who are so minded. I [452]commend the Minister of State and his officials and all those involved in the project for a job well done which will provide the clarification and certainty in areas where there might have been doubt.

Senator Tom Sheahan: Information on Tom Sheahan  Zoom on Tom Sheahan  With the indulgence of the Chair, I wish to make a point which I omitted in my contribution. This Bill is a cleaning up exercise for the Statute Book. I ask if the language used in legislation could be simplified for use by the public. Several people have said to me that the language used in Bills is such that one would need a law degree to understand it. I ask if this simplification could be incorporated into how Bills are drafted.

Minister of State at the Department of Public Expenditure and Reform (Deputy Brian Hayes): Information on Brian Hayes  Zoom on Brian Hayes  I thank the House for a very interesting and stimulating debate on this important piece of legislation. This country has a unique parliamentary tradition. Given the history of the pre-Independence period and the period from Independence to the present and despite the turmoil, the violence and difficulties, this is the fourth oldest parliamentary democracy in Europe. We did not go the way of fascist Europe in the 1930s and 1940s and throughout that period, even with the difficulty of the Civil War, our Parliament has remained in place since Independence. Even though we are a young State, we are an old parliamentary democracy. Even in the period before Independence, the parliamentary tradition was very strong and with such a tradition it is inevitable that laws are passed which rightly focus on the rights of individuals and of companies and associations. This unique parliamentary experience has produced all these rights in such a way that is comprehensible to the public and available to them.

  3 o’clock

Before I reply to the individual points made by Senators in their contributions, this Government is very aware of the need, when introducing new laws, to ensure those laws are put through a robust test which we describe as the regulatory impact assessment process. It is an ambition in the programme for Government that any new legislation must be filtered out, as it were, by way of a regulatory impact assessment before it is published. This process gives us the confidence to know that proper consultation has occurred at drafting and pre-drafting stages so that there is an engagement with stakeholders and that some of the issues are teased out before Committee Stage. I cannot say if this is what happens in all cases but I refer to a Bill which was introduced in this House by Senator Quinn before the last general election, the construction contracts Bill, and which is now before the other House. That Bill underwent a fully published regulatory impact assessment and the Bill will be the better for it, in my view.

This revision should not be regarded merely as a theoretical exercise or some kind of academic reading of books which takes years and whereby obsolete legislation is removed. There are real and practical benefits from this exercise which were clearly demonstrated in the OECD report in 2010 which highlighted the work of the statute law revision project and commended the then Government for continuing that work. I echo the points made by Senator Quinn because once legislation is tidied up and obsolete statutes are removed, the cost of red tape to business is reduced and this is a service to the professions, to business, to ordinary citizens and there is clarification of entitlements under the law. There is nothing theoretical about this project because its results are practical and real and it will make a significant difference to practitioners and the general public.

The codification of law is in all our interests. I refer to Senator O’ Donovan’s point about codification of the criminal law and I raised this matter with my colleague, the Minister for Justice and Equality. In order to effect codification, the obsolete legislation must first be removed because the total burden of legislation needs to be reduced. I fully agree with his remarks that we need a simple codified body of legislation not only in criminal law but also [453]for financial dealings. Every year I make the same criticism of the Finance Act because it amends all the preceding principal Acts. This is not a good way to do business because people find it difficult to understand where the law stands.

To reply to Senator O’Donovan, the first objective of this revision exercise, which has been ongoing for the best part of a decade, is to remove the obsolete legislation and then to look at the post-Independence legislation which is obsolete and which is the next part of the work and which needs to be changed.

I wish to reply to a number of points raised by Senator Sheahan about the continuation of the project. As I indicated, I envisage that subject to appropriate consultation, resources and a Government decision, attention will need to be given in early course to statutory rules, orders and charters. I am also keen to look at post-1922 legislation, if possible. It will therefore not be just up to Independence but also post-Independence. I am hoping to have the support of the House for any further amendments that my Department might bring forward in the course of the statute law revision project.

He also correctly raised the question on detailed consultation, asking if we had consulted widely with stakeholders to ensure we are getting it right in removing obsolete law. The contribution of relevant bodies and interested parties has always been welcomed. Draft schedules have been available on the Attorney General’s website and contact details have invited submissions. I understand that submissions have been made. I would envisage that any further phase will also welcome such contributions from interested parties. I want to assure the Senator, therefore, that that has occurred.

Senator Feargal Quinn referred to what he described as a glorious spring clean of legislation, and he is right in that respect. I agree with his remarks concerning the need to reduce bureaucracy and red tape, while ultimately introducing codified law. I also agree with him and other colleagues that when we are introducing legislation it should be written as plainly and simply as possible. It is more complicated when one is cross-referencing new law with existing law, which comprises a number of Acts. Nonetheless there is a responsibility for plain speaking and clear laws, which help the public and practitioners to understand what is in the mind of the Oireachtas when it passes laws.

I am aware of fascinating discussions that occur when the High Court or Supreme Court tries to get into the mind of the Oireachtas and discern what it meant when passing a given law. Frequently, judges read the Official Report of debates to get a sense of what was in the mind of Members of the Oireachtas when a certain law was passed. I agree with colleagues therefore that we have an obligation when introducing laws to write them as plainly and straightforwardly as we possibly can so that there is clarity, and that ultimately these matters are not open to judicial contest if a legislative action is not clear.

I agree with Senator Lorraine Higgins who, from her professional perspective, made the point better than I did about the need to remove obsolete legislation. She put on the record the practical benefits this legislation will give to legal practitioners. When they are presenting submissions to the courts, they will not have to go back through pre-Independence legislation, much of which is obsolete and will be removed as a result of this Bill. That point was well made.

Senator Mullins introduced some other arguments. While I accept the point he is making about codification, I think he has got the wrong end of the stick when it comes to this Bill. His basic premise was that we should just be concerned about what has happened since Independence, and that nothing that happened before Independence has any great practical impact or effect. With respect to Senator Mullins, however, he is not right about that. There are many pieces of pre-Independence legislation which we are keeping and which have a direct impact on organisations, groups and rights that currently exist. I will refer to two of them. The Dublin [454]Fire Brigade and Dublin Corporation Act of 1862 is being retained in law largely because it is still of benefit. In addition, the Coroners and Mortuary Act of 1907 is also being retained. The Senator proposes that our task should be to examine everything post-Independence and that we should forget the historical, academic pre-Independence exercise. It does not stack up that way, however. This is not an academic process, it is a wholly practical one. I have cited those two pieces of legislation which we will retain because they are still of significant benefit.

I want to thank Senator Keane for her contribution which referred to the publication of pre-1922 legislation on the Internet, of which I would be supportive. At present, the publication of legislation on the Internet is a function of the Law Reform Commission, which I understand is in the process of arranging to make available electronically certain pre-1922 Acts. That is the point Senator Keane raised.

I also wish to thank Senator Cullinane and others for their kind and generous remarks about the Attorney General’s office. Senator Cullinane referred to the fact that interns were working on this project, but I think that is an entirely good thing. They were working with experienced legal researchers and colleagues in the Attorney General’s office, and I hope they have got some good experience from doing so. It is good that they were involved in this project and their enormous enthusiasm and assistance for the process is rightly appreciated. I hope they have obtained something from that training.

In conclusion, this has been a very useful Second Stage debate on an important Bill, which will have a practical impact on the business community, legal practitioners and citizens generally. It will bring to the next stage of development a piece of work that has gone on for the best part of a decade and from which there are real benefits. It reminds us all of our continuous responsibilities in this House and the other House, whether we are introducing new law or amending existing law, to do so in a way which is modern and brings maximum clarity to bear. In that way people can know what exactly is in the mind of the Oireachtas and where the balance lies in any legislation initiated by any Member or any Government.

I look forward to Committee Stage which I understand, with the agreement of the House, may be taken next week. If there are specific issues I will deal with them on that occasion. I have been reliably informed that witchcraft laws were repealed in 2007, so we do not have to re-examine them.

Question put and agreed to.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  When is it proposed to take Committee Stage?

Senator Denis O’Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  Next Tuesday, 22 May 2012.

Committee Stage ordered for Tuesday, 22 May 2012.

Sitting suspended at 3.20 p.m. and resumed at 3.30 p.m.


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