Amendments Nos. 1, 4 and 5 are related and may be discussed together by agreement.
Statute Law (Restatement) Bill, 2000: Committee Stage. SECTION 1.
Acting Chairman
I move amendment No. 1:
In page 3, subsection (1), line 14, after "includes" to insert "statutory instruments and".
These amendments suggest that statutory instruments should be included in the definition of statute. The amendments are technical in nature and are designed to discover whether the Attorney General will be responsible for dealing with and providing restatements in respect of both forms of legislation – statutes and statutory instruments.
Amendments Nos. 1, 4 and 5 do not offer the best way forward because we are trying to confine our efforts to dealing with primary legislation. In effect, it would be easier to revoke, re-enact and restate all statutory instruments rather than including them under the Bill. In the interests of efficiency and effectiveness, I cannot accept the amendments.
Do I take it that statutory instruments are included under the Bill?
No.
The Bill seems to include statutory instruments but it does not state that they are included. If they are not included, are they excluded?
They are specifically excluded. The Bill deals solely with primary legislation.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 2 and 3 are related and may be discussed together by agreement.
I move amendment No. 2:
In page 3, subsection (1), line 16, after "Ireland" to insert "Acts of the Parliament of the former United Kingdom of Great Britain or of England which applied to Ireland".
These are technical amendments which refer to the application of statutes. The Bill appears to apply to Acts passed by the Westminster Parliament after 1800 but not to those passed before 1800. I am seeking to ensure that all legislation will be covered by the Bill. Two Acts of Union were passed during the period to which I refer, one at Westminster and the other in Ireland, but the Bill appears to refer only to the Westminster Act of Union. It would be more appropriate for the Bill to refer to the Act of Union passed in Ireland.
I wish to take this opportunity to ask the Minister of State a question to which I am sure she does not have the answer. However, perhaps her learned advisers may be in a position to provide the information I am seeking. How many Acts of Parliament passed before and after the Act of Union remain on the Statute Book?
I am reluctant to provide an answer to a question asked by an historian such as Senator Manning. However, I am advised that the bulk of Acts which remain in force are those which were passed after 1800. I do not know the exact number but I will ask my officials to provide the Senator with the information he requires.
With regard to amendments Nos. 2 and 3, section 1 states that the term "statute" refers to Acts of the Oireachtas and Saorstát Éireann, Acts of Parliament of the former United Kingdom of Great Britain and Ireland and Acts of a Parliament sitting in Ireland at any time before the coming into force of the Union with Ireland Act, 1800. I accept Senator Costello's point that two Acts of Union were introduced. We will check if a gap exists between these Acts and if legislation exists which might fall outside that gap, if that is the case we will return to this matter on Report Stage. Amendment No. 2 is unnecessary but we will consider the position in respect of amendment No. 3 prior to Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Section 1 agreed to.
SECTION 2.
Amendments Nos. 4 and 5 not moved.
I move amendment No. 6:
In page 3, subsection (2), line 33, to delete "materials" and substitute "provisions".
The word "materials" is an unusual word which, to my knowledge, has not previously appeared in legislative text and I feel it would be preferable to substitute the word "provisions".
In the interests of simplicity, I will accept the amendment.
Amendment agreed to.
I move amendment No. 7:
In page 3, lines 34 to 36, to delete subsection (3).
I referred to this matter on Second Stage. There appears to be a very fine line in the Bill, at times, between restatement and amendment. Section 2(3) seems to be amending legislation. It states:
A restatement may renumber the provisions of a statute or portion of a statute and otherwise alter the form of a statute or portion of a statute.
I do not believe that a restatement should renumber the provisions or alter the form of a statute because to do so would interfere with the work of the Oireachtas. Perhaps the best way of getting around this problem is to delete the subsection and not allow it to comprise part of the restatement. Surely one would want the restatement to be as true as possible to the actual text. If people want to look for particular provisions, there is not much sense in restating, renumbering or altering the form of a statute. Although the form may be altered textually to make legislation more understandable, every other aspect of the statutes should be kept as close as possible to the original legislation. If legislation is altered, that will interfere with the legislative process.
Senator Costello raises a very important point but it is one with which I would tend to disagree. As far as I am concerned, this section is central to the efficacy of the Bill. Unless those carrying out the restatement process are allowed to simplify provisions or delete extraneous matter, the process will not be successful and we will end up with the same type of bulky, cumbersome legislation we set out to restate.
I acknowledge Senator Costello's concerns but I believe that my forthcoming amendment, which would ensure that concerns would be met on an ongoing basis, will meet his concerns. Senator Maurice Hayes made the point earlier that while the intention might not be to change the nature of the law, that could happen. This section is essential to the working of the Bill.
Section 2(3) states:
A restatement may renumber the provisions of a statute or portion of a statute and otherwise alter the form of a statute or portion of a statute.
While I did not have any problem with the first part of the subsection when I read it initially, I was somewhat concerned about the words "or otherwise" which seemed to confer a very broad scope until I went on to read "alter the form". I am not sure I understand the word "form". Perhaps the Minister would clarify its meaning. If "form" merely refers to the order or layout of provisions, which is clearly the Bill's primary objective, I would not have any difficulty with its use. However, it may mean something other than that and, if it does, I would support Senator Costello's amendment.
I concede that there is a difficulty here which is probably a language difficulty, the very difficulty the Bill seeks to address. It seems to me that the restatement would merely seek to make it easier to lay out provisions in an orderly sequence but that point may not be sufficiently explicit. It is possible to interpret this subsection in another way, namely, the way in which Senator Costello has interpreted it.
The primary difficulty seems to relate to the word "form" rather than the renumbering. If the content of the subsection were to mean that the form of legislation could be fundamentally changed, difficulties could arise. However, I believe the word "form" refers to the layout of legislation rather than its substance, and the alteration of that layout may be necessary in order to make the legislation more accessible. I am aware that there is a difference between the words "form" and "substance". We are back to pedantry again here. There is a difficulty with the clarity of the subsection.
Perhaps it would be helpful to use the word "presentation" rather than "form". That would make it clear that the substance of legislation is not at issue.
The word "form" refers to the appearance or layout of legislation as opposed to its substance or content which the Attorney General would not intend to alter in any way. The central purpose of this Bill is to make the layout of legislation more clear. If, after discussing Senator Manning's forthcoming amendment, it is necessary to clarify the matter further, we will return to it on Report Stage. The Attorney General felt that this subsection was necessary in order for the option to reorder paragraphs, etc., in legislation to be available.
Will the Minister give us an undertaking that she will consider the point made by Senator Hayes prior to Report Stage?
Absolutely.
All the contributions made were very helpful. Will the Minister address the point in regard to the renumbering of provisions? Surely such renumbering would lead to confusion. Why should provisions be renumbered? The provisions in the restatement should be in accordance with the original legislation.
Renumbering is probably the most crucial element of restatement which seeks to put all consolidated Acts into a simplified form. It would be necessary to renumber provisions in order that people would not have to go from one end of a statute to the other to see what amendments were made. The purpose of restatement is to link provisions while ensuring at all times that the content of legislation is not interfered with. That would make the legislation more readable.
It would make it more readable but it would certainly lead to confusion if somebody wanted to look up a provision referred to by one number in the restatement and another in the original legislation. That will not be helpful.
The primary legislation will not be changed. It will merely be reformatted.
I am aware of that. I am only trying to be helpful.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 4, subsection (4), line 6, after "genders" to insert "provided that such amendment has been effected by an Act of the Oireachtas, either by way of specific amendment or of a general amendment of references of a particular category specified in such Act".
My concern is that when we are restating the law, where masculine and feminine are intended to be construed, this should be specified in the restatement. I understand the Intepretation (Amendment) Act, 1997, will cover this. However, to transfer to the Attorney General the authority to conduct his own gender proofing as he thinks fit encroaches on the responsibility of legislators. The Attorney General and not the legislators will decide what was intended and will be responsible for interpreting gender proofing when restatement takes place.
I am not sure if this matter is best dealt with by this amendment or by Senator Manning's. I look forward to hearing the Minister of State's reply.
I see no reason to return to this amendment on Report Stage. We are dealing with consolidated legislation. This might involve legislation passed in the last ten years which would have been gender proofed being added to earlier legislation which would not. In some cases the form he/she would be used and in others it would not. In no circumstances would the actual meaning of the legislation be changed. This is a matter of simple gender proofing and does not affect the meaning of legislation. The same applies to forthcoming amendments.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
Section 3 agreed to.
NEW SECTION.
I move amendment No. 8a:
In page 4, before section 4, to insert the following new section:
"4.–Before endorsing any restatement the Attorney General shall advise a special Oireachtas Joint Committee on the reasons for, and the nature of, the restatement and receive the approval of the Committee for the restatement.
This matter has been discussed already by almost everyone who has spoken. The amendment will improve the Bill for two reasons. It is important that the principle of parliamentary involvement and accountability be expressed in the Bill. Such a committee would embody that principle. My proposal is merely a statement of principle rather than a suggestion regarding the shape of the committee. A sub-committee of the committee on legal affairs or preferably a dedicated joint committee to which the Attorney General reported on a regular basis would be very useful. Such a committee could be in a position to get its own independent legal advice as to what is being proposed, where necessary. There is a danger, despite the best intentions of the Attorney General and those who draft restatements and all the expertise available, that changes may occur or things appear which were not intended in the original law. A level of scrutiny of restatements is important.
The amendment is also important in terms of communicating with the public so they can see what the changes are, hear them discussed and be made more fully aware of what is happening. This could best be done through some sort of committee.
We should examine carefully what has happened to the old committee on statutory instruments, which are little devils which need to be examined on a regular basis. Things can happen under statutory instruments which legislation never intended or they can develop out of proportion to what was intended in the legislation.
I will be happy if the Minister of State can accept the principle of my amendment and give some thought to the nature of the committee between now and Report Stage.
I support Senator Manning. I understand his objectives. He hopes to copperfasten the security that no changes will take place which are not open and understandable. This amendment may not be the ideal way to ach ive his objective; the Minister of State may say there is another way. However, we must overcome this problem. Senator Manning's amendment is sensible and appears to be valid and operable. It may well be that the Minister has an alternative which can be discussed on Report Stage. The objective of the amendment is to make sure nothing slips through without being open and clear. Senator Manning's wording is a sensible way of achieving that.
I was conscious, when we were ordering the business this morning, that this would need to be looked at. That is why we did not propose to discuss all Stages today. It is right that we take time to reflect on what has been said.
In her reply on Second Stage, the Minister of State referred to the matter raised by Senator Manning. It would be appropriate to find some procedure to ensure a degree of scrutiny. An important reason for this is contained in section 5 and relates to the prima facie aspect, to which reference has been made. If a restatement is to have standing before the courts, difficulties could arise if it were not subject to some sort of parliamentary scrutiny. This is an added reason to give this amendment some consideration. I have no fixed views regarding the wording of the amendment so long as the principle is taken into account. Senator Manning appears to take a similar view.
Senator Manning has attempted to deal with our concerns regarding this legislation. The amendment proposes that the Attorney General advise a special Oireachtas joint committee regarding the reasons for and nature of restatements of legislation. If section 5 gives a strength of law to a restatement by making it prima facie evidence, we must be very careful what is contained in it. Members of both Houses must be aware of the text of any restatement and be satisfied that it conforms to the provisions of the legislation. If not, a conflict will arise and the restated legislation will not have been dealt with by the Houses of the Oireachtas.
I wonder if this amendment meets all our needs. What is the standing of a joint committee of the Oireachtas? It does not enact legislation. What would be the strength of the approval such a committee could give to a restatement? Let us suppose a constitutional question arises with regard to a restatement of legislation and to items of change in the legislation and it is left to the discretion of the Attorney General to make his decision on it. If we move that a step further and the Attorney General advises the joint committee, can we leave it at that? That still does not fulfil the duties of both Houses.
I would like the Minister to respond on that point because if there is an initial difficulty in terms of us, as legislators, doing our business my fear is that a special Oireachtas joint committee will not do the business for us. I understand Senator Manning's point that this should be examined by the Minister of State, the draftspeople and the officials and that we might come back to it on Report Stage.
We discussed this issue earlier. I support Senator Manning's draft proposal and I welcome the Minister of State's willingness to consider it. It is important to remember that the substance of the law would not be at issue, rather whether restatement has unwittingly or otherwise effected a change in the law. We need to devise a procedure which focuses on that point and prevents somebody going to town in an attempt to change the law itself. There was a time I would have dismissed that possibility but having witnessed the ingenuity of some of my colleagues in making debates on the Order of Business I can quite easily see how any sort of opening could be taken.
There is a suggestion, which I offer to the Minister, that possibly a variant of the negative resolution procedure might be used, where the matter is scrutinised by the committee, is laid before the Houses and can be taken as having been approved unless we move against it.
On the point raised by Senator Costello on the status of a joint committee, it would be quite sensible to do it by joint committee because the function would be to spot the error, so to speak, and in the event that the error is spotted it can be referred to the House. The House can then deal with it. It is not as if we are making legislation, if so it would have do it by select committee. It is a matter of scrutiny and in the event that a defect appears the House can deal with it.
On the point made by Senator Costello, I agree with Senator Dardis that effectively the committee would first scrutinise and, thereby, reassure both Houses that no liberties have been taken or that there are no changes. As to what powers the committee would have, in the real world if a joint committee made up of all parties felt uneasy or unhappy with the changes then it would be a very foolish Attorney General or Government which would not listen to what was being said and seek to put it right. We are not discussing issues of confrontation or the principle of Bills, we are simply discussing procedures and ensuring that matters are dealt with properly. I would not have any worries on the matter.
To protect the authority of the Houses of the Oireachtas and to ensure that all restated legislation has a standing in court, while not accepting the amendment, I am happy to accept the principle and to return to it on Report Stage in order that we might work out a process by which this can be done, taking account of the comments of Senators.
I thank the Minister of State.
Amendment, by leave, withdrawn.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.
I move amendment No. 9:
In page 4, line 38, to delete ", or the date of the passing,".
This amendment relates to the date of the passing of the legislation. It seems relevant to include it because otherwise it would lead to confusion and it would be difficult to ascertain the date of passing. I do not understand why the Minister of State is providing that it could be left out of the restatement. It seems to be quite relevant. There may well be amending legislation but the date of passing would be valuable for citizens dealing with the matter.
I support Senator Costello. I do not see the point of leaving out the date which is often a good guideline or benchmark of legislation. Perhaps the Minister of State will explain why this is included.
On the basis that this is the second of Senator Costello's amendments which aims to simplify a Bill which aims to simplify legislation, I am happy to accept the amendment.
I thank the Minister of State.
Amendment agreed to.
Section 7, as amended, agreed to.
Sections 8 and 9 agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next week, subject to the agreement of the Whips.
Report Stage ordered for Tuesday, 20 June 2000.
As we are approaching 1 o'clock, I propose that the sitting be suspended from now until 2 p.m. and that No. 3, Harbours (Amendment) Bill, 2000 – Committee and Remaining Stages, be taken then.
Is that agreed? Agreed.
Sitting suspended at 12.50 p.m. and resumed at 2 p.m.
I call the Acting Leader of the House.
I apologise to the House because I have just been informed of the unavailability of the Minister for the Marine and Natural Resources until 2.20 p.m. I sincerely regret this but it is out of my control, as I explained to the Leader of the Opposition. I propose the suspension of the sitting until 2.20 p.m.
The matter is clearly not the responsibility of Senator Fitzgerald and I in no way blame for him for that. He has been courteous and he went out of his way to inform me. This is not the way to run a House. The Minister should be here. He had plenty of notice to be present and it is discourteous to the House. However, I agree to the suspension.
I thank you, a Chathaoirligh, and the Leader of the Opposition.
Sitting suspended at 2.05 p.m. and resumed at 2.20 p.m.