asked the Taoiseach whether he is aware that the multiplicity of Orders made under the Emergency Powers Act has made it almost impossible to ascertain from time to time the precise state of the law; and whether he will appoint an officer of his Department to codify all such Orders, Department by Department, at six-monthly intervals and make copies of such codifications available to the public through the Stationery Office.
Ceisteanna—Questions. Oral Answers. - Codification of Orders.
While I am very sympathetic to the general idea indicated in the Deputy's question, I am not clear as to what precisely he means to convey by the word "codify". I understand that lawyers draw a distinction between consolidation and codification. The term "consolidation" as applied to statute law is apparently interpreted as meaning the combination in a single measure of enactments relating to the same subject matter but scattered over different Acts. It involves the re-writing of laws, the substitution of modern for antiquated language and machinery and the bringing into a harmonious whole of apparently inconsistent enactments. At the same time the work must be done in such a way as to effect only the minimum change in expressions which have been the subject of judicial decisions and on which a long course of practice has been based. The word "codification", on the other hand, while it is sometimes employed loosely so as to imply the consolidation of statutes, means in its stricter sense an orderly and authoritative statement of the principles and leading rules of law on a given subject whether these rules are to be found in statute law or in common law. It is more difficult than consolidation and would take more time because the setting down of rules of common law or of custom would have to be done carefully and would require harmonious blending with statutory provisions.
For a considerable time I have had under consideration the question of making arrangements for the consolidation of some of the more complicated branches of statute law. This work would probably require the whole-time attention of at least one highly trained draftsman. The setting up of a committee of eminent lawyers to supervise the work would probably be a part of the necessary arrangements. In view of present conditions it may be some time before the work can be taken in hand.
With regard to the Emergency Powers Orders the term "codification", as I understand it, would not properly be applicable and consolidation would not at the present time be practicable. Arrangements were, however, made some time ago for the preparation of an index to the Emergency Powers Orders (both of the Government and of Ministers) published in 1939, 1940 and 1941. This publication, which will not be available for some time, will include in addition to a subject index a list of the Orders (showing amendments made by subsequent Orders) and also tables showing the effect of the Orders upon previous enactments.
It is intended to publish a revised edition of the list from time to time.
While I appreciate the exhaustive courtesy of the Taoiseach's reply, all I want to know is to whom I can sell a quarter of a lb. of cocoa. There have been about five Orders made in relation to the sale of cocoa and about 45 Orders in relation to the sale of everything else. The average citizen does not know what he should do in order to comply with the multitude of Orders which the Taoiseach's colleague, the Minister for Supplies, has been making for the last nine months. All I want the Taoiseach to do is to collect the whole bundle, to find out what the Minister really means, and to tell the public in a codification or a consolidation, or whatever he likes to call it, what they are obliged to do by the law, as the law has been altered by the Minister on any given date. Is the Taoiseach aware that no citizen knows what the law is at present and cannot find out, because the majority of the Orders made by the Minister for Supplies and signed by the Taoiseach are not printed for months after being made and are not available? All I want is that they should be all gathered together at regular intervals and a document prepared which will inform the public what is in them all, so that those of us who want to obey the law —and we are becoming a diminishing number—will be able to do so.
I am not to be taken as accepting all the statements made by the Deputy. The whole point is that the law is changing and, if it is changing, you cannot have it in a fixed form which will be available for all time. Those who are interested will have to follow the changes that have been made, and it is possible to do it. There is a certain amount of difficulty, as I have admitted already, and to enable Deputies like Deputy Dillon, and other members of the public to do it, the best we can do is to give them an index. From that they will be readily able to find out what are the Orders issued. I am afraid they will have to get the Orders in order to do that. I am not aware that the Orders are not published for months afterwards. I think that is an overstatement.
While I admit that, in the emergency conditions in which we find ourselves, it is natural that the law should change more frequently than in normal times, may I suggest to the Taoiseach that what is necessary is that we should have, say, two dates in each year each of which might be regarded as a root to which you can go back? At present, in order to follow the state of the law in the light of amending Orders, it may be necessary to follow a series of amending Orders right back to 1939. What I suggest to the Taoiseach is that we should have a bi-annual bringing up to date of all Orders, so that if I wanted to find out what amending Orders recently published had done to the law I would not be required to go behind the 1st January, 1942, and then read the amending Orders in the light of what the law was found to be on the 1st January, 1942. Again, I suggest that such a milestone should be fixed for 1st July, 1942, so that this interminable watching of a long series of Orders would not be necessary in order to determine from day to day what the law is.
In that regard we will do everything that is possible in the sense that we will have this index, which I have urged should be published. As to the view which the Deputy has expressed that there should be some date beyond which you need not go, and what I take to be the other suggestion that, after a certain period, there should be one new Order, so to speak—at least that is the practical way I would take the suggestion—consolidating the previous ones made over a period, that may be extremely difficult and I would not like to promise that. At the moment all I am promising is an index and that that index will be published covering the Orders that will have been made previous to its publication and that it will be published at as frequent intervals as we can reasonably manage. I have been asking the Department about it. There was a suggestion, first of all, of a year. I think a year is a rather long period. If we can get it down to a half-yearly period or a quarterly period, all the better. That is in reference to the index. The index does not go as far as the Deputy wishes, or as I would wish, because I have experience myself in other connections of trying to get a series of Acts in order to know exactly what is the present state of the law in regard to some matter. It may not be possible, and I am not making a promise; but I will ask the Department if it is possible to get out for a period, say, of six months a single Order relating to a particular thing and to see whether they could not get all the previous law in regard to that into such an Order. I doubt if it will be possible.
If consolidating Orders could be got out for the Orders made under the Department of Supplies, the index might serve for the Orders made by the other Departments. I fully recognise the difficulties and I am grateful to the Taoiseach for the assurance that what can be done will be done.
I can give no promise as regards that. I have not gone into the details and I do not know what amount of difficulty there may be.
While appreciating the difficulties spoken of by Deputy Dillon, I ask the Taoiseach to consider that it may be bad enough to have the bulk of the Orders changed from time to time and changed in respect of a lot of details without having the codification method on top of it. Also, while the index is a necessary and valuable thing, I think an index will mean that the unfortunate person, who wants to see what a newly issued Order means, on referring to the index will find that he has to refer to 14 or 15 different Orders which he has not any chance of laying his hand upon. While there is a difficulty no doubt in creating a completely new Order to bring a particular matter up to date, it is really the sound thing to do. If it cannot be done, instead a description could be given in front of every new Order or a note indicating the Orders that have preceded it and upon which it is based. It could be a boiling down of some of the descriptions which appear in the Irish Trade Journal. Something like that is necessary. There could be at least a very considerable amount of elimination of amendment by way of reference, and that is what is so tantalising about some of the Orders at the present time.