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Seanad Éireann debate -
Wednesday, 4 May 1983

Vol. 100 No. 5

Statute Law Revision Bill, 1981: Second Stage.

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

Limerick East): This Bill, which is the result of much research into the entire surviving body of statute law until 1922, continues the process of eliminating from the Statute Book enactments which have become obsolete, irrelevant or unnecessary. The repeal of archaic enactments is not a mere academic exercise. The object of these statute law revision measures is to facilitate the compilation of an up-to-date index of statutes in force in the State and, eventually, the production of a new set of revised statutes. This will reduce the labours of all who have occasion to consult the law — whether as legal practitioners, administrators, businessmen or private citizens. However, I should like to make it clear that further statute law revision measures, in addition to the Bill before the House at present, will be needed before it will be possible to complete this process.

The Statute Law Revision (Pre-Union Irish Statutes) Act, 1962 revised statutes of Irish Parliaments down to the Act of Union of 1800. The Bill, now before the House undertakes a further review of such statutes. It is, however, in the main concerned with the repeal of unnecessary English and British statutes. The Bill proposes to repeal over 500 enactments covering a period of 685 years.

At this stage, I think I should explain the use of the terms "English" and "British" as applied to statute law. The terms have commonly been used to describe statutes passed since the Union of England with Scotland in 1707, and that description is followed in the heading to Part III of this Bill. Our Interpretation Act, 1937, gives the term the narrower meaning of "an Act of the Parliament of the late United Kingdom of Great Britain and Ireland", and, of course, all the statutes in Part IV of the Schedule fall within this category.

Mention of the language in the older statutes may be of interest. From the time of the early writs and ordinances, going back to the time of John, Lord of Ireland, 1199 to 1216, Latin was the language invariably used. It gave way to Norman-French, though the person before whom the Parliament was held and the places of assembly were always referred to in Latin, "Coram" and "apud", respectively, being the descriptions used.

As late as the Parliament of Henry VII (1493), Norman-French continued to be the language employed. The first occasion on which the Statutes of Ireland were written down in the English language was in the year of Poynings' Parliament (1495). Thereafter, the use of the printing press having been introduced, English was the sole language employed.

Perhaps I might also draw attention to the italicised notes in the second column of the Schedule. These notes, which do not form part of the Bill, explain the reasons for the repeal of the enactments concerned. Terms used in these notes to indicate why a given enactment is being repealed are explained in the explanatory memorandum circulated with the Bill. In the great majority of cases the reasons for the repeal will be self-evident, even on a cursory view of the statute.

May I, at this point, assure any Senator who is interested in any particular matter in the Bill that I will be happy to arrange that an official from my office or from the Statute Law Reform and Consolidation Office will be available to give the Senator a full explanation, or supply the Senator with such information as the Senator may require?

I should like to take this opportunity to correct a slip in the explanatory memorandum. The reference in page 3 to "Edward" Curtis should be to "Edmund" Curtis, who for nearly 30 years, 1914-1943, was a Professor of Modern History in the University of Dublin and one of Ireland's most distinguished historians. His works on Irish history were consulted extensively by the Statute Law Reform and Consolidation Office in preparing this Bill and I think it is due to his memory that I should put the record straight by giving him his proper name.

Section 1 of the Bill gives life to the Schedule by providing for the repeal of the listed enactments, to the extent set out in the third column of the Schedule. It will be noted that, in Parts I and II, the enactments referred to for repeal are termed "statutes", whereas in Parts III and IV they are referred to as "Acts". The reason is historical. The term "statute", which is nowadays used as equivalent to "Act", was at one time taken as meaning all the enactments of one session of Parliament, each enactment being referred to as a Chapter of the Statute, because the royal assent was given to them collectively. However, "Act" has long since been used to refer to each enactment separately and, when old statutes have been given short titles by modern enactments, the title always used the word "Act".

Section 2 sets out limitations on the effect of repeals. The section is a form common to statute law revision Acts and serves as a useful reminder of some important safeguards — which are spelt out more explicitly in subsection (1) of section 21 of the Interpretation Act, 1937 — notably that existing rules of law and equity, and established practices and procedures, which may have derived from, or been confirmed by any repealed enactment are not affected by the repeal.

Part I of the Schedule is the result of a further revision of the pre-Union Irish Statutes which, as I have mentioned, were the subject of the Statute Law Revision Act of 1962. This was made necessary by the proposed repeal of pre-Union English statutes which were ordered to be observed in Ireland by royal writ or ordinance — that is, orders of the King in Council — or afterwards applied to Ireland by a statute of an Irish Parliament, such as Poynings' Act, 1495. Where, therefore, an English statute is listed for repeal in Part II of the Schedule, its "Irish" counterpart is listed in Part I.

Part I contains a few enactments passed by the Irish Parliament, which were not concerned with English Acts. In due course a further fairly extensive Revision Act will be required to deal with the enactments of the Parliaments of Ireland prior to Poynings' Parliament of 1495.

The supposedly exhaustive Irish Statutes at Large, 1310 to 1800, published by authority in 20 volumes, omits all pre-1310 writs and ordinances and a considerable amount of post-1310 legislation as well. Recourse has therefore been had to the Irish Record Office Series of Early Irish Statutes published in four volumes, the first three edited by Henry Berry and the fourth by James Morrissey in 1939. A footnote at the bottom of the first page of the Schedule gives the references.

Part II deals with enactments relayed to Ireland by Poynings' Parliament and for the first time a drastic pruning has been effected. For the future, only a very small portion of the extensive legislation of the Parliament of England then applied remains.

Part III of the Schedule deals with statutes extended to Ireland by Irish statutes after the comprehensive Poynings' Act, 1495. Those still enforceable are the Maintenance and Champerty Act, 1634, Wentworth's Act, which relates to the illegal involvement in other persons' litigation for the sake of monetary gain and similar abuses, and Yelverton's Act, 1781, which applied a number of English statutes of which only those relating to the calendar now remain.

The only statute in this group which calls for mention is the Act of Union. This Act was passed by both the Irish and the British Parliaments. The Irish version was repealed by the Statute Law Revision Act of 1962 and under the present Bill the British version also will be removed from the statute roll of this State.

Part IV of the Bill deals with British statutes since the Union which applied to Ireland. A word of explanation may be helpful in regard to one class of those statutes, namely, those concerned with the former United Kingdom Parliament. The Electoral Act, 1963, repealed most of the statutes relating to that Parliament, although on a strict view it should be said that few of them applied to the Oireachtas of 1922 or the present Oireachtas established by the Constitution of 1937. They could not apply except by express adaptation, since the Oireachtas was in each case a new institution. However, by way of abundance of caution most of them were repealed, and for consistency others — relating in the main to eligibility of holders of certain offices for membership of the House of Commons — are now proposed for repeal. These were all recommended for repeal in the Final Report of the Joint Committee on the Electoral Law, 12 July 1961.

I feel sure that Senators will agree that this Bill, being a purely technical measure, is entirely non-controversial, though, as I hope I have indicated, a highly desirable piece of proposed legislation. It is as such that I commend it to the House and ask that it be given a Second Reading.

I welcome the Bill. It is obviously a very necessary and useful one. It is essential that statutory deadwood should be removed from the Statute Book. When I say "deadwood", of course many of these statutes are full of historical interest and even though they have to go from the Statute Book they will still play an important part in the history of this country.

I would like to compliment the Minister and the Statute Law Reform and Consolidation Office for the interesting and erudite explanatory memorandum. It seems inconceivable that we will have at least one more Bill and apparently more than that before all these Bills are gone. Over the years a tremendous number of statutes have been passed and are continually becoming either entirely irrslevant or almost entirely irrelevant, and this process must go on. I certainly welcome this Bill.

I, too, welcome the Bill. It is a meticulous tidying up measure, removing old statutes which are either obsolete or virtually redundant. To that extent it is a measure of reform, although the reform is, as Senator Ryan has said, "the removal of deadwood". In welcoming it I hope it is an indication that we will get more rapid progress on the other kind of law reform: on the reform of very important areas of our social legislation which badly need to be reviewed and which are very old British statutes.

For example, the main law governing marriage in Ireland dates from a British Act of 1870. It is therefore 113 years old. The main law governing children in this country is an old British Act of 1908 and is therefore 75 years old. Recently the Supreme Court considered sections of two old British Acts, the 1861 Offences Against the Person Act and the 1885 Criminal Law (Amendment) Act. Although a majority of the Supreme Court did not find the sections unconstitutional there was criticism of them in the High Court and the Supreme Court as being a matter for the Legislature to consider: these old, harsh, dated provisions which criminalise all activity of consenual male homosexuals. That is another area in which as a matter of urgency we must consider the need for reform.

Apart from inheriting the statutes of the British Parliament — the former Parliaments referred to by the Minister in his speech — we have also inherited the procedures and the structure of the legal profession and a good deal of the structure in relation to the provision of legal services and presenting of cases in court. It is surely time that we looked also at part of the inheritance law, and I would like to draw the Minister's attention to a motion on the Order Paper — Motion No. 17 — which calls for the establishment by the Government of an independent working party to carry out a comprehensive assessment of access to legal education and the provision of legal services in the State. I would hope the Minister might come back into the House at an early date to have a discussion on that motion and to look at whether the present structure of the legal profession and the present inheritance in a broader sense of the procedural aspects of the law are in the best interests of the public and serve us well, or whether they have become dated.

I might end by commenting on the reference in the Minister's opening sentence in his speech introducing the Bill, to the fact that it is part of the process of eliminating from the Statute Book and I quote him "enactments which have become obsolete, irrelevant or unnecessary". Alas, it looks as if later on this afternoon we may be moving to put on to our Statute Book something that is obsolete, irrelevant or unnecessary. I certainly hope not, but I was struck by the Minister's words because whatever about obsolete I shall be arguing later on that the proposal we are going to consider is certainly irrelevant and unnecessary.

I would like to join with the previous speakers in welcoming this Bill and in welcoming the Minister to the House. This is the first occasion he has come here and he is a Minister who has won the confidence of the Irish people. I know that in the years ahead, while he holds the office he has, he will continue to retain that confidence.

As previous speakers have said this Bill has the effect of removing from the Statute Book legislation that is obsolete or irrelevant, removing, in effect, deadwood from our Statute Book. That is a very good thing because the Statute Book should merely contain that which is relevant and that which is current and that which has use in the present day. Therefore, I join in welcoming the Bill.

I would like to join with Senator Ryan in complimenting the Department of Justice and the Law Reform Commission for producing this Bill because the amount of research that went into the production of this Bill was extensive. Even though the Bill itself is extremely short, the Schedule to the Bill is very extensive and shows the amount of work that was undertaken. It is important that we have an up to date index of Irish statutes and, as the Minister said, one of the purposes of this Bill will be to facilitate that. It is important that we have available to us as soon as possible volumes of extant pre-1922 statutes, so that the written law of that jurisdiction be available at an easy glance. It is not so available at the moment. It is important also, when we are speaking on statute law, that we have available to us easily post-1922 statutes. It is an appalling situation in this country that one cannot readily obtain from the Stationery Office the bound volumes of statutes as produced by the Houses of the Oireachtas since 1922. It is unfortunate that independent bodies such as the Law Society and private publishers have had to undertake the production and the reprinting of bound volumes of statutes. It is something that the Minister should direct himself to, and the Minister for Finance, if it comes under his jurisdiction, should see that the bound volumes are available.

With regard to statute law, it is also important, and I would ask the Minister to direct his attention to it, that we have available composite volumes of statutes. In the recent past we had steps taken by various Ministers to consolidate the law in various areas, and the best example of that would be the Fisheries Consolidation Act, 1959, which had the effect of consolidating into one volume a substantial amount of statutory fishery law. Since 1959 we have seen many amending fisheries Acts and we now have the situation when once again the fishery laws of this country are to be found in many volumes, and I cannot understand from a practical point of view why it is not possible to obtain a composite volume, one volume which would contain all the amendments. A good example of where that can be found is in the Standing Orders of this House which would have been amended on numerous occasions and yet they are available in one single volume.

Other than that, I join with other Senators in welcoming the Bill. I hope, as Senator Robinson said, that whereas this in one sense is a negative piece of legislation, we have moved and I hope we will see a positive step in the area of statute law along the lines I mentioned being taken by the Minister and by his Department in the future.

I am nervous about treading in this area after the various practitioners and the Minister and his advisers. There is one piece of legislation which is anachronistic and which in the past the State has shown a distinct unwillingness to revise, and that is the Vagrancy Act. Among other objectionable clauses there is one clause which states that anybody found wandering abroad without visible means of support, or living in any shed or outhouse, or in the open air, shall be deemed to be a rogue and a vagabond, which effectively brands as a criminal anyone who is homeless. I would simply commend that piece of legislation to the Minister's attention. It quite possibly would be unconstitutional but there has been a distinct unwillingness to repeal it in the past and I would sincerely ask the Minister that we could at least get away from the state of branding the unfortunate victims of our organised society who are homeless as criminals. To coin a phrase which is appropriate today, the homeless have a right to life too.

In welcoming the Bill I note that its object is to eliminate from the Statute Book enactments which have become obsolete, irrelevant and unnecessary. I would like to see eliminated words used in Bills which are obsolete, unnecessary and irrelevant. I would like to see the day when we can come into this House as ordinary Members of the House, not having the grounding in the niceties of legal statutes, able to understand the words that are being used in Bills, which are totally irrelevant to today's language. There is not a single child I know of 20 years of age, 18 years of age or 15 who can read a Bill and say "What is in that Bill I recognise as the normal language of today". 90 per cent of it is for people who are in the legal profession so that they can continue in their privileged position of being able to read words and language which have no relevance to today's language.

Except for Senator B. Ryan the people who have contributed so far were two senior members of the Bar and a member of the solicitor's profession, and there are times when I wonder are we initiating legislation here which only they can read and in doing so preserve their own jobs. We have a situation at present in the legal profession where we have a doubleedged knife. One cannot go to court without having a solicitor and a barrister, and now solicitors and barristers are charging VAT on their input in the case, which means that not alone——

Will the Senator come back to the Bill?

I am speaking on the Bill. The client is charged VAT by the solicitor and by the barrister and unfortunately, this, to me, is irrelevant, obsolete and unnecessary.

The Minister to conclude.

Limerick East): Thank you very much, Sir, for initiating me into the Seanad in such an efficient way. I thank the Senators who have spoken for their contributions. Senator Robinson has called for reform of other areas of the law and I have taken note of what she has said in the matter. I have noted Senator Durcan's criticism about lack of comprehensive collection of all statutes in existence. Certainly I will be considering these matters. I have sympathy with the non-legal Senators as I am a non-legal person myself but I will take their views, also, into account.

Question put and agreed to.
Agreed to take remaining Stages today.