Interpretation Bill 2000: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Section 1: In page 5, subsection (2), line 14, "2004" deleted and "2006" substituted.

This amendment provides for a commencement date of 1 January 2006. A new commencement date was necessitated as the Bill passed by this House on 1 July 2003, providing for a commencement date of 1 January 2004. This amendment came in the form of a proposal from the Senate, which I accept.

This amendment was suggested by Senators Ryan and Hayes and the Minister's change is to be welcomed. Unfortunately, that was not the case with many of the amendments moved on Committee Stage. While many of the amendments we are dealing with here today are technical or are amendments that clarify certain sections of the Bill, the Minister did not accept some of the more important aspects of the amendments submitted in the Seanad. In particular, there was one issue the Minister promised to examine and that was in the area of interpretation by the courts of laws and the methods used for interpretation. The point was strongly made in the Seanad that it should be indicated in the Bill that the courts may have the authority to examine the transcripts of the Dáil, Seanad and committees when interpreting any particular section of a Bill. While it is not compulsory, it was felt that it should at least be mentioned in the Bill as a particular option. It is important that the conclusions arrived at by law makers are taken into consideration when such interpretations are being made.

I have no objection to the amendment, but can the Minister explain why it has taken so long for this legislation to pass through the Houses? I also share the concern about the Oireachtas being paramount in terms of laws we make in this House. In interpreting the laws, the courts should give primacy to the intention in this House, as we are the voices of the people.

This is very much a technical Bill. Work is on-going in every parliament on the issue of how we interpret law. It is the kind of legislation that would not excite the public to any great extent. The Law Reform Commission produced a report on this issue and work has been on-going on the legislation for years.

I will clarify the issues surrounding the interpretation of parliamentary debates. The Law Reform Commission produced a report entitled "Statutory Drafting and Interpretation: Plain Language and the Law" in December 2000. The report recommended that in examining an Act, regard should be had to extrinsic aids such as Dáil and Seanad debates. Senator Ryan proposed amendments which would have expressly allowed the courts to use debates of the Houses to assist in interpreting a Statute, but they were not accepted. Senator Ryan raised the matter on Committee Stage in the Seanad, was seconded by Senator Hayes and supported by Senator Quinn. I rejected the proposed amendment, which would have expressly authorised the courts to look at official reports of the debates, but I undertook to raise the matter in the Dáil if I could do so procedurally. Subsequently, I wrote to Senator Ryan and advised him that, having investigated the matter, I found that I could not raise it in this House. However, the grounds for rejecting Senator Ryan's amendment still stand. It is felt that the courts, through case law, should be allowed to develop the principles within which extrinsic aids to interpretation can be used. There is a body of case law developing on this matter, both from within this jurisdiction and from others. To provide for aid on a statutory basis at this stage could result in the debates of this House and of the Seanad being used in a manner unintended.

Chapter 5.09 of the Law Reform Commission states that in the context of using Dáil and Seanad debates:

More objections may be raised to the use of this type of extrinsic aid, than to the other types already discussed. This is principally because of the difficulty involved in distinguishing between the true intention of the legislature and the statements made by the government about that intention.

It should be noted that the courts can have recourse to extrinsic aid in the context of the interpretation of international treaties and most law originating from the European Union. This is necessary in the context of transnational matters for interpretation where other jurisdictions such as the continental European civil systems use extrinsic aids. It is felt that the Irish judiciary should be allowed to develop further the principles it applies to the use of extrinsic aids in respect of purely domestic legislation.

The Minister acknowledged in his reply to the Senate that the courts are beginning a process whereby they will take the transcripts of both Houses into consideration in certain circumstances. However, for some reason, we in this House are reluctant even to suggest that they may do so. When Senator Ryan dealt with this issue, he clearly stated that there was no obligation on the Judiciary, but that we should at least acknowledge this process as part of the legislation we are now passing into law. It seems odd that the courts are already setting the precedent, yet we seem to be afraid to include it in a Bill that will act as a guideline for the overall interpretation of legislation.

The amendment that was proposed in the Seanad would have expressly authorised the courts to look at the official reports of debates. The current position is that it does not prevent the courts from using debates of the Dáil and Seanad. That was the advice I was given, which I am glad to share with the House. It does not prevent the courts from using and looking at debates of the Dáil and Seanad.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 4: In page 6, subsection (1), line 26, "This Act" deleted and "A provision of this Act" substituted.

This is a technical drafting amendment to simplify the language.

Seanad amendment agreed to.

Amendments Nos. 4 to 7, inclusive, are related to amendment No. 3 and these amendments will be discussed together by agreement.

Seanad amendment No. 3:

Section 5: In page 6, subsection (1), lines 33 and 34, ", other than a provision that relates to the imposition of a penal or other sanction" deleted and "(other than a provision that relates to the imposition of a penal or other sanction)" substituted.

These amendments to section 5 are all technical drafting amendments to simplify the language. Many of the amendments are like this.

Seanad amendment agreed to.
Seanad amendment No. 4:
Section 5: In page 7, subsection (1)(b)(ii), lines 1 and 2, “the definition of ‘Act’ in section 2(1)” deleted and “that definition” substituted.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 5: In page 7, subsection (1), lines 4 and 5, "the literal interpretation may be departed from and preference given to an interpretation based on the plain intention of the Oireachtas" deleted and "the provision shall be given a construction that reflects the plain intention of the Oireachtas" substituted.
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 5: In page 7, subsection (2), lines 8 to 10,", other than a provision that relates to the imposition of a penal or other sanction" deleted and "(other than a provision that relates to the imposition of a penal or other sanction) substituted.
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 5: In page 7, subsection (2), lines 16 to 18, "the literal interpretation may be departed from and preference given to the interpretation based on the plain intention of the maker of the instrument" deleted and "the provision shall be given a construction that reflects the plain intention of the maker of the instrument" substituted.
Seanad amendment agreed to.

Amendments Nos. 8, 9 and 10 are related and will be discussed together by agreement.

Seanad amendment No. 8:

Section 6: In page 7, line 22, "an Act" deleted and "that Act" substituted.

These amendments to section 6 are all technical drafting amendments to simplify the language. They align subsequent references to Acts and statutory instruments back to the reference to any Act or statutory instrument.

Seanad amendment agreed to.
Seanad amendment No. 9:
Section 6: In page 7, line 24, "the Act" deleted and "that Act" substituted.
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 6: In page 7, lines 24 and 25, "the statutory instrument" deleted and "that statutory instrument" substituted.
Seanad amendment agreed to.

Amendments Nos. 12 to 15, inclusive are related to amendment No.11 and these will be discussed together by agreement.

Seanad amendment No. 11:

Section 7: In page 7, subsection (1), line 28, after "set out", "in" inserted.

This is another highly technical amendment.

Seanad amendment agreed to.
Seanad amendment No. 12:
Section 7: In page 7, subsection (1)(a), line 29, after “Oireachtas,”, “in” deleted.
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 7: In page 7, subsection (1)(b), line 34, “in” where it firstly occurs deleted.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 7: In page 7, subsection (1), lines 39 and 40, paragraph (c) deleted and the following substituted: “(c) in the case of any other Act, such text of that Act as corresponds to the text of the Act enrolled in the manner referred to in paragraph (a) or (b).”.
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 7: In page 7, subsection (2), line 42, "which" deleted and "that" substituted.
Seanad amendment agreed to.

Amendments Nos. 17 and 19 are related to amendment No. 16 and these shall be discussed together by agreement.

Seanad amendment No. 16:

Section 8: In page 8, paragraph (a)(ii), line 6, “it” deleted.

These four amendments to section 8 are all technical drafting amendments to shorten and simplify the section.

Seanad amendment agreed to.
Seanad amendment No. 17:
Section 8: In page 8, paragraph (a)(ii), line 6, “other” deleted.
Seanad amendment agreed to.
Seanad amendment No. 18:
Section 8: In page 8, paragraph (b), line 9, “other” deleted.
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 8: In page 8, lines 13 and 14, "is specified to bring such proceedings" deleted and "is authorised by that other Act to bring such proceedings" substituted.
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 9: In page 8, subsection (1), line 17, after "a" where it secondly occurs "Part, Chapter, section, Schedule or other" inserted.

This is a technical drafting amendment to section 9. In this case the clarity of the subsection is improved by repeating the words, "Part, Chapter, section, Schedule or other". It improves the language in this section.

Seanad amendment agreed to.
Seanad amendment No. 21:
Section 11: In page 8, line 30, "that" deleted and "such" substituted.

This is a technical drafting amendment to section 9 so that the reference in line 29 to a provision relates back to it when the example is in the Schedule.

Seanad amendment agreed to.
Seanad amendment No. 22:
Section 14: In page 9, subsection (1)(c), line 13, after “one”, “parliamentary” inserted.

This is a technical amendment to section 14. Contextually, "session" must be a reference to a parliamentary session. However, for the sake of greater clarity it was felt appropriate to expressly refer to "parliamentary session".

Seanad amendment agreed to.

Amendments Nos. 23, 24 and 25 are related and will be discussed together by agreement.

Seanad amendment No. 23:

Section 18: In page 10, paragraph (c), line 43, “so read” deleted and “read accordingly” substituted.

These three amendments to section 18 are all technical drafting amendments to improve clarity. In the case of amendment No.24 the final phrase in paragraph (d), namely, “whose adoption is recognised by virtue of the law for the time being in force in the State;” can logically only refer to a child adopted outside the State. The adoption of children under the Adoption Act is recognised by the State. This amendment ensures that the final phrase refers only to foreign adoptions recognised by the State.

Seanad amendment agreed to.
Seanad amendment No. 24:
Section 18: In page 11, paragraph (d)(ii), lines 9 and 10, “or, where the child has been adopted outside the State, whose adoption” deleted and “or a child adopted outside the State whose adoption” substituted.
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 18: In page 11, paragraph (f), line 17, "Description” deleted and “description” substituted.
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 18: In page 11, lines 21 to 31, paragraph (g) deleted and the following substituted: “(g) Marginal and shoulder notes, etc. Subject to section 7, none of the following shall be taken to be part of the enactment or be construed or judicially noticed in relation to the construction or interpretation of the enactment:
(i) a marginal note placed at the side, or a shoulder note placed at the beginning, of a section or other provision to indicate the subject, contents or effect of the section or provision,
(ii) a heading or cross-line placed in or at the head of or at the beginning of a part, chapter, section, or other provision or group of sections or provisions to indicate the subject, contents or effect of the part, chapter, section, provision or group;".

The reference in section 18(g), “subject to sections 6 and 7”, is inappropriate as only section 7 qualifies this section. The wording in paragraph (g) has also been rearranged for clarity. In addition, the opportunity has been taken to deal with any further developments in the layout of Bills that might be adopted by providing for shoulder notes.

The amendment by the Seanad merely facilitates any change in layout that may be adopted in the future. No change in layout is required as a consequence of this amendment. For example, it will facilitate replacing marginal notes which are expressly referred to in this section with shoulder notes which are not at present dealt with in the text. In any event, it is now more common for large statutory instruments made by Ministers to have shoulder notes rather than marginal notes in cases where such a note is provided.

It sounds confusing. Is it possible to clarify it? I assume it will not alter the way in which Bills are already laid out.

No. It is a permissive provision. Shoulder notes appear at the top of a page and marginal notes appear on the side. It is to allow for changes that may occur.

Seanad amendment agreed to.
Seanad amendment No. 27:
Section 18: In page 11, paragraph (i), line 38, “, for general purposes in the State,” deleted.

In section 18(1), the words the Seanad amendment deleted add nothing to the text. If an Act refers to another time zone, this will be clear from the context of the reference. This provision will not apply by virtue of section 4 of the Bill.

I have a brief question which also refers to the previous amendment in respect of the marginal and shoulder notes. The Minister of State spoke specifically in respect of legislation and statutory instruments, ministerial orders in particular. On the basis of a number of recent court decisions that have questioned the legitimacy of ministerial orders, will this change in the legislation prevent such decisions being made in the future?

To clarify, it simply allows for possible changes decided by the House, bearing in mind that we are simply talking about the layout of legislation. I understand all legislation is included, including primary legislation and statutory instruments. It is to allow any changes in respect of shoulder notes and marginal notes.

Will it affect possible decisions such as those made recently by the courts on the proper application of ministerial orders? Did the decisions have to do with layout?

In our system, shoulder notes are not part of legislation.

Seanad amendment agreed to.
Seanad amendment No. 28:
Section 20: In page 12, lines 1 to 4, subsection (1) deleted and the following substituted:
"(1) Where an enactment contains a definition or other interpretation provision, the provision shall be read as being applicable except in so far as the contrary intention appears in——
(a) the enactment itself, or
(b) the Act under which the enactment is made.”.

As is the case with many of the other amendments, this is a drafting change to improve clarity. It is to ensure the provision is interpreted in such a way that the words "except in so far as the contrary intention appears in" relate to what is now provided for in paragraphs (a) and (b) and not just paragraph (a).

Seanad amendment agreed to.
Seanad amendment No. 29:
Section 22: In page 12, subsection (3), line 23, "the power" deleted and "a power" substituted.

This is a technical drafting amendment. The use of the indefinite article rather than the definite article is more appropriate in the context of subsection (3).

Seanad amendment agreed to.

Seanad amendment No. 31 is related to Seanad amendment No. 30 and they may be discussed together, by agreement. Is that agreed? Agreed.

Seanad amendment No. 30:

Section 24: In page 12, line 33, "confers new jurisdiction" deleted and "confers a new jurisdiction" substituted.

Seanad amendments Nos. 30 and 31 are minor technical amendments.

Seanad amendment agreed to.
Seanad amendment No. 31:
Section 24: In page 12, line 38, "the court" deleted and "that court" substituted.
Seanad amendment agreed to.
Seanad amendment No. 32:
Section 25: In page 13, line 3, "proved" deleted and "proved," substituted.

This is also a very minor technical amendment.

Seanad amendment agreed to.

Seanad amendments Nos. 34 to 36, inclusive, are related to Seanad amendment No. 33 and they may be discussed together, by agreement. Is that agreed? Agreed.

Seanad amendment No. 33:

Section 26: In page 13, subsection (1), line 9, after "provisions", "for the enactment so repealed" inserted.

Seanad amendments Nos. 33 to 36, inclusive, are minor technical amendments to section 26.

Seanad amendment agreed to.
Seanad amendment No. 34:
Section 26: In page 13, subsection (2), line 11, "the" deleted.
Seanad amendment agreed to.
Seanad amendment No. 35:
Section 26: In page 13, subsection (2), line 12, "in" deleted and "by" substituted.
Seanad amendment agreed to.
Seanad amendment No. 36:
Section 26: In page 13, subsection (2), line 13, "the new enactment" deleted and "new enactment" substituted.
Seanad amendment agreed to.
Seanad amendment No. 37:
Section 26: In page 13, subsection (2)(c), line 23, after “may”, “, subject to section 27(1),” inserted.

This amendment is to prevent section 26(2)(c) being interpreted in a manner that would result in interference with the judicial process, in other words, when a provision is repealed and re-enacted, with the modification that section 26(2)(c) cannot be used to override section 27(1), and enable the modification to be used to affect any case already before a court when the modification became operative.

This expresses more pertinently the concern I wanted to express earlier. There have been a number of court cases in recent years concerning the proper application of ministerial orders. Some would have concerned whether the right dates were being used and others would have concerned whether the power the relevant Minister was taking upon himself was actually in the legislation to which the order pertained. This amendment would seem to be trying to close loopholes of this type to the advantage of a Minister. Is that the intent?

My advice is that it is to prevent the Oireachtas from interfering with a case before the courts.

That is precisely the case I am making because courts have made decisions on ministerial orders that have resulted in this House having to pass, in the past two years alone, a number of emergency Bills. I suspect the intent of this amendment is to prevent this from occurring in the future.

We must respect the independence of the courts in this matter and ensure the Dáil does not interfere with them. I understand the Deputy's point.

Seanad amendment agreed to.
Seanad amendment No. 38:
Section 26: In page 13, subsection (2), lines 27 to 34, paragraph (d) deleted and the following new paragraph substituted:
"(d) if after the commencement of this Act—
(i) any provision of a former enactment, that provided for the making of a statutory instrument, is repealed and re-enacted, with or without modification, as a new provision, and
(ii) such statutory instrument is in force immediately before such repeal and re-enactment,
then the statutory instrument shall be deemed to have been made under the new provision to the extent that it is not inconsistent with the new enactment, and remains in force until it is repealed or otherwise ceases to have effect;".

This is a technical amendment to improve the clarity of section 26(2)(d).

Seanad amendment agreed to.
Seanad amendment No. 39:
Section 26: In page 13, subsection (2), lines 35 to 40, paragraph (e) deleted and the following substituted:
"(e) to the extent that the provisions of the new enactment express the same idea in a different form of words but are in substance the same as those of the former enactment, the idea in the new enactment shall not be taken to be different merely because a different form of words is used;”.

This is a technical amendment to improve the clarity of section 26(2)(e). It substitutes “express” for “appear to have expressed”. This reflects the greater use of the present tense, which is appropriate in this case. The word “but” is inserted after “form of words” to improve clarity and the reference to “ideas” has been made singular to reflect the first reference to the word “idea” in the paragraph.

Seanad amendment agreed to.
Seanad amendment No. 40:
Section 28: In page 14, lines 22 to 30, section 28 deleted.

On Committee Stage in the Seanad I did not deal with section 28 of the Bill as passed by this House. Acts of the European Communities and European Union, normally directives and regulations but also the Treaty of the European Community, are often referred to in Acts of the Oireachtas and statutory instruments. From time to time, these regulations and directives are revoked and made again with or without modification. The question arises as to what effect a revocation has on references in our Acts and statutory instruments to these European references. It was hoped that section 28, as passed by this House, would deal with this. However, most references are references to directives and the majority of these are given effect by ministerial regulations made under the European Communities Act 1972. The regulation making power in that Act is contained in section 3. In its application in a European directive, it is limited to giving effect to the directive. Section 3 of the Act states, "may contain such incidental, supplementary and inconsequential provisions as appear to the Minister making the regulations to be necessary for the purpose of the regulations".

If a replacing directive makes material modifications, as many of them do, to what has been provided by the directive being modified, and the directive being modified has been implemented by regulations made by a Minister under the 1972 Act, those ministerial regulations might not be capable of being kept alive simply by the device provided for by section 28 of the Bill. The scope of the regulation making power that the Minister concerned can exercise to give effect to the new directive could have increased or decreased in comparison with a corresponding power that was exercised to give effect to the replaced directive. On that basis, it is better to address this issue as it arises on a case by case basis, rather than providing generally for it in the Interpretation Bill. An attempt was being made to tidy up the legislation, especially in terms of primary legislation, but the advice is that it is better to deal with this type of situation on a case by case basis.

That sounds like good advice. In a Bill such as this, making a generalised statement concerning EU regulations and directives would seem to be taking a chance in terms of subsequent problems. While it is difficult to understand the advice given by the Minister of State on this matter, it appears to make more sense to deal with it on a case by case basis. There would be more clarity and assurance with regard to the legal translation of EU directives into Irish law.

Some of this is very technical. An example supplied by my officials concerned a directive on trout. If there was secondary legislation for this matter and Brussels decided to introduce a new directive on trout and salmon, new legislation would be necessary. It would be difficult to connect the two. We were trying to connect one directive with another but I was told that it is safer in such a situation to renew the earlier legislation.

My understanding is that European directives, if not implemented in national law on an EU law basis, became de facto national law anyway after two years. I am confused as to why this provision is needed. If EU directives are changed but no Irish legislation has been introduced within the two years, surely the EU law takes precedence.

This kind of effort to connect one piece of legislation with another would work in primary legislation. However, in terms of secondary legislation, the advice is that it is best to deal with issues on a case by case basis rather than provide generally for them in the Interpretation Bill. It is a matter of using language in our statute law which may be re-used. That is the background to this Interpretation Bill. That is why we propose to delete lines 22 to 30.

Seanad amendment agreed to.
Seanad amendment No. 41:
Schedule: In page 16, line 1, "Valuation Acts" deleted and "Valuation Act 2001" substituted.

This is a technical amendment which deletes an obsolete definition of Valuation Acts and inserts the appropriate reference to the Valuation Act 2001.

Seanad amendment agreed to.
Seanad amendment No. 42:
Schedule: In page 16, line 25, after "‘year"', ", when used without qualification," inserted.

The additional words inserted by the Seanad are in the definition of "year" in the Interpretation Act 1937. They were not carried over into the Bill because a general provision was included in section 4 of the Bill providing that the proposed Act would apply except in so far as the contrary intention appears. However, the words when used without qualification in the definition of "year" in the Interpretation Act 1936 could also be regarded as having a technical meaning to others, known as a qualified year.

A solar year, the time it takes for the earth to go around the sun once, may be classified as a qualified or an unqualified year. A qualified year relates to where the start and end points are expressed or otherwise ascertainable and an unqualified year relates to where it is equal to the solar cycle, which has no specified starting point. I hope this is clear to Members. When used without qualification, the year starts on 1 January of any year. It is no wonder that we need Interpretation Bills to deal with these issues. A qualified year means that the starting point is identified, such as from the present.

Seanad amendment agreed to.
Seanad amendments reported.

A note will be sent to the Seanad acquainting it accordingly.