I remind Senators that they may speak only once on Report Stage. The proposer of an amendment may also reply to the discussion on that amendment. Report Stage amendments must be seconded.
Statute Law (Restatement) Bill, 2000: Report and Final Stages.
Amendments Nos. 2 and 3 are alternates to amendment No. 1 and may be taken together by agreement. Agreed.
Government amendment No. 1:
In page 3, to delete all words from and including "Acts" in line 15, down to and including "1800" in line 18 and substitute the following:
"Acts of the Parliament of the United Kingdom of Great Britain and Ireland passed in the period 1801 to 1922, Acts of the Parliament of Great Britain passed in the period 1707 to 1800, Acts of the Parliament of England passed in the period 1226 to 1707, Acts passed by any Parliament sitting in Ireland before the Union with Great Britain in 1801".
Amendment No. 1 is a technical amendment which states explicitly the different categories of Acts which may be included in a restatement. There was some confusion about this matter on Committee Stage.
Amendments Nos. 2 and 3 in my name seek to achieve what the Minister has included in her amendment. I suggest we insert "and" after "1226 to 1707" rather than a comma. The amendment covers laws dating back to 1226. We learned in history class about such things as Poynings' Law and the various Bills passed in England which became law in Ireland. This amendment is a useful improvement on the previous text. Perhaps the Minister of State will look at the wording as suggested.
We would be quite happy to replace the comma with "and".
Will Senator Costello formally move an amendment to amendment No. 1?
I move the following amendment to amendment No. 1:
That "," after 1707 be deleted and substituted by "and".
Amendment agreed to.
Amendment No. 1, as amended, agreed to.
Amendments Nos. 2 and 3 not moved.
Amendments Nos. 5 to 7, inclusive, are related to amendment No. 4 and they may be taken together by agreement. Agreed.
Government amendment No. 4:
In page 3, to delete lines 34 to 36.
There was much debate on this issue on Committee Stage. Having reviewed and discussed the matter with the Attorney General and the Director of Statute Law Revision, we have decided to delete section 2(3) of the Bill. What will happen in practice is that each restatement will be set out in numbered paragraphs, each paragraph will correspond to a section of the Acts being restated and a note will appear at the beginning of each paragraph indicating the derivation of the paragraph. Everyone will be able to see the relevant statutory material at a glance. Where there is a need for cross references, there will be a note indicating where a particular section will be found. Much of the concern expressed the last day centred on our not changing legislation. We are deleting the section to show we are not in any way changing it.
The Minister's amendment is worthwhile and reflects some of the discussion which took place. My amendments took a fall-back position because I was concerned about the effect renumbering and altering the form of statute might have. The deletion of the subsection will cover my concerns.
Amendment agreed to.
Amendments Nos. 5 to 7, inclusive, not moved.
Government amendment No. 8:
In page 4, to delete lines 1 to 6.
Discussion on this issue hinged on the last amendment also. We are trying to ensure there is no suggestion that we are changing the law. The amendment will ensure gender proofing, which was only a facilitative process, will not change any section. To make it clear that we are restating and not changing the legislation, we are deleting section 2(4).
I welcome the amendment which deals with the concerns I expressed regarding the Attorney General being responsible for gender proofing.
Amendment agreed to.
Amendments Nos. 8a and 9 are related and may be taken together by agreement. Agreed.
I move amendment No. 8a:
In page 4, between lines 21 and 22, to insert the following:
4–Before endorsing any restatement the Attorney General shall advise an Oireachtas Joint Committee on the reasons for, and the nature of, the restatement and receive the approval of the Committee for the restatement.
Amendments Nos. 8a and 9 are very different amendments, and that is the nub of the problem. I am baffled. General agreement was expressed during Second and Committee Stage debates that there should be a final link of parliamentary scrutiny of restatements. The points made across the floor of the House, including those made by former Northern Ireland Ombudsman, Senator Maurice Hayes, were that restatement may inadvertently lead to changes which were not intended. An extra layer of scrutiny at parliamentary level was an added safeguard that the substance of the law would not be changed either by inadvertence or by sleight of hand, though nobody suggested the latter would happen.
Two other points were made. The symbolic point that laws originate in Parliament, pass through it and carry its authority with them was also made. They carry that authority in the language in which they have been debated, presented and put on the Statute Book. That is part of what gives law its authority. The Bill proposes to allow the language in which the law is couched to be changed. Our laws should carry the imprint of Parliament.
Restatement of laws would receive necessary publicity if they were discussed before a committee of the Oireachtas. The principle that an element of parliamentary scrutiny should be involved was accepted on the last occasion. I tabled an amendment which I accept may not be couched in perfect parliamentary language, but I left this House last Thursday with the strong impression that my amendment would be drafted in the appropriate parliamentary language, with the provision for some form of committee scru tiny being at the centre of it. I was less than happy when I received a copy of the proposed amendment which simply states that each restatement shall be laid before each House of the Oireachtas and that the Attorney General ". . . shall not publish or otherwise make available such restatement until the expiration of twenty-one days on which each House has sat".
We all know this is a passive way of examining legislation. On how many occasions has a restatement or a document which is left sitting before the House for the statutory number of days been brought before either House? I remember only once that such a process was used which was in the case of a former Minister, Máire Geoghegan-Quinn and related to health and children. We all know what happens – a document is laid before the Houses but Members are busy, 21 sitting days elapse and nobody really reads it. It is the lazy, passive way of adding an extra dimension of scrutiny.
I am totally dissatisfied with amendment No. 9, which bears no relation to what we were told we would have when we last debated this Bill. It is not a satisfactory substitute for or alternative to what the House wanted last week. I await an explanation from the Minister of State of what has happened and how she thinks she can pass this off on us as being an adequate substitute for what the House agreed last week.
I endorse almost everything Senator Manning said. My understanding last week was that while Senator Manning's amendment may not have been quite correct, it was necessary to do something rather similar in that regard and that it was the Minister of State's intention to do so. When I saw the Minister of State's amendment I thought it was interesting, a new way of looking at this matter and that we should see whether it might work. I agree entirely with Senator Manning in that I cannot see it working. I know the Minister of State is anxious to ensure the legislation will be firm, strong and solid and will last for many generations, enabling restatements to be made.
One concern expressed last week was that if a challenge was made in court to a statute that was restated, it might not stand up unless it was very securely enshrined in law. Senator Manning accepted – as I do in supporting him – that perhaps a Joint Committee of the Oireachtas was not technically a correct mechanism but that it was very close to what would probably be needed to make any restatement stand solidly in law. This amendment does not do that and it does not go far enough towards doing so. It is not watertight and is not built on solid ground.
While the Minister of State may have been advised that this provision will be adequate, I have grave doubts as to whether it would stand up in court. A restatement needs more solid and secure backing than just being left in abeyance without anyone commenting on it for 21 days. Putting it before a Joint Committee of the Oireachtas, if that is the best way, would ensure it is examined and passed even if no comments were made and on that basis I support Senator Manning's views. The Minister of State would be well advised to accept his amendment rather than the one she proposes.
These two amendments change the situation from our last discussion. The Minister of State has agreed already to delete section 2(3) and (4) – we expressed our concern that the Attorney General might wander from the substance of the legislation in those subsections when providing his or her restatement. We felt the Attorney General might embark on changes in relation to renumbering, altering the form or gender proofing which are not within his remit any longer, but those have been taken out. Section 5, which states that any restatement will operate as prima facie evidence, is subject to changes as a result of the changes made to section 2(3) and (4), given that sections 4 and 5 clearly indicate that they will only have the prima facie strength subject to subsection (3). I take this as meaning the Minister of State is abandoning to a considerable extent the power to make a substantial change in the text. We must take that on board when discussing these amendments. It is an improvement and means that the protections we need will be somewhat less as a result.
The protection the Minister of State offers is now in amendment No. 9 in which she proposes that a copy of each restatement will be laid before both Houses. Obviously this is a negative form of approval, if that is not a contradiction in terms, but it allows the Attorney General to present the documentation, although the Attorney General is already cautioned against making the substantial changes we were concerned about and wandering from the text. The measure then comes before the House.
This is a meaningful development of the matters we debated the last day, but I am not sure the Minister of State has gone far enough. I see this as the bare minimum if we are to deal with the questionable matter of the Attorney General having sole responsibility, subject to the measure being laid before the Houses for three weeks. Something more proactive is desirable if we are to satisfy ourselves as to our duties as legislators. Despite the protections in place, there is no guarantee that what is stated in the restatement will be in accordance with what is in the legislation. How do we ensure that the Attorney General does not go into fresh matter in his restatement? If the restatement is to be used then prima facie evidence will be open to challenge. We need protective mechanisms.
The Minister of State says that the mechanism she proposes is that the restatement be laid before the House, while Senator Manning feels it should be put before an Oireachtas committee first. I have my doubts about the restatement going before a Joint Committee of the Oireachtas, as such a committee has no standing. Unless we give it some standing and function we cannot know what we are talking about when referring to such a committee. If we establish a Joint Committee of the Oireachtas which approves of the restatement, what will that mean? It does not mean either of these Houses has approved of it. However, if the restatement was run past the committee first and then put on the floor of the House, perhaps that would be a sufficient check and balances.
The Minister of State might consider both Senator Manning's amendment and her own amendment, although I would like something more proactive, such as a motion on the Order Paper as appears today in relation to the renewal of the Offences Against the State Act. A restatement of legislation would appear on the Order Paper and if we felt it needed debate we could do so. We could consider whatever legislation comes before us, such as happens with some but not all of the directives from Europe. We could have it before us and decide as legislators if we wanted to take further action.
This is an improvement on our earlier discussions. I am not sure it fulfils all our objectives and perhaps it requires further examination before it goes to the other House.
I find myself in some difficulty about this matter. I indicated my support for what Senator Manning talked about last week. I still take the view that there is a requirement for scrutiny. I made the point last week that it might not necessarily be the particular mechanism which Senator Manning advocated at that time but I think he was flexible on that, as I was. This may technically fulfil a requirement but I think it does no more than that. We will probably have to take a broader look at it. I suppose, in some ways, it is regrettable that we are dealing with this on Report Stage because if we teased it out in somewhat greater detail, perhaps it would be possible to arrive at a consensus on the issue.
I do not object, in principle, to Senator Costello's suggestion that restatements be put on the Order Paper but it would cause practical difficulties because, by virtue of the number of Bills being dealt with, it could make the Order Paper quite congested. In any event, it is not remaking legislation, it is just looking at the wording being used. Nevertheless, it would be useful to have a mechanism, as I said last week, whereby the matter is looked at because we frequently find errors. It is not a question of difficulties about the nature of the Oireachtas committee or whatever body would look at it. Some questions were raised about that last week – for instance, how could we make legislation? We are not making legislation but looking at legislation which has been made and its so-called translation.
I come back to the point I raised last week, to which Senator Quinn referred, that there are plenty of precedents whereby the courts would take the view – they have a standing in the courts as we know from dealing with the Bill last week – that if this did not go through the Oireachtas, it does not have a standing before the courts. There is a difficulty there. I do not know what can be done in practical terms to resolve this impasse. Perhaps it could be looked at between now and the time it goes to the Dáil but I am aware that we are running out of time and that it will have to come back to us if it is amended in the Dáil. I await what the Minister has to say with interest.
I understand it is up to the Houses to regulate their affairs and to establish whatever committees they might wish rather than proceed by diktat, so to speak. Although frequently the genesis of the committee starts at Government, it is the Houses which ultimately decide what committees are required and what the membership should be. There is probably some reasonable ground for compromise. I think I understand that the Government amendment fulfils the requirement – the Minister will probably be able to clarify this – but it is a minimum. There should be a greater degree of scrutiny, by whatever mechanism, to ensure things do not slip through, so to speak.
This afternoon I heard the Ombudsman say in regard to some other matters that he regarded secondary legislation as important. Senator Manning made that point last week. It is slightly separate from this but if there was to be a committee on secondary legislation, that would be another appropriate place where this could be looked at. I am uncomfortable with what is before us.
I was in agreement with Senator Manning last week in regard to the inclusion of some mechanism whereby the Oireachtas would have some say. I was quite happy with the amendment when I read it this morning until I met Senator Manning who told me he was completely dissatisfied with it. Some 21 sitting days is about seven weeks because sometimes we sit two days per week, sometimes three days. Even if we sit three days per week, it is approximately seven weeks.
The matter will be laid before the two Houses but my questions is, how will it be laid before the Houses? How will we know it has been laid before the Houses? We have for two or three years brought resolutions and motions before the House with the agreement of the Opposition. They have been circulated to the House and there has been no debate. Members read them and are quite happy with them. Will this be laid before both Houses in that way or, as Senator Costello said, will it be printed on the Order Paper?
I do not go along with the idea that it is bad to lay it before each House of the Oireachtas. Although I have not participated in some of these debates, Members have continually argued for certain Bills, which have gone through the House, to be laid before both Houses of the Oireachtas. That is regularly included in Bills which pass through this House. I cannot remember an instance but I am sure Senators will agree it is regularly included in Bills that they be laid before each House of the Oireachtas on a yearly basis. We dealt with one such Bill today, the Offences Against the State (Amendment) Act, 1998. When that Bill was enacted, it stated that the Minister for Justice, Equality and Law Reform would have to come back to the House on a yearly basis.
I agree with Senator Manning and Senator Quinn about the workload Senators, Deputies and Ministers have in trying to watch everything going through the House. Some vital legislation which is restated could go through unknown to us. I am satisfied with the amendment that we regularly seek that legislation be laid before both Houses of the Oireachtas, sometimes on a yearly basis.
Referring back to comments Senators made about last week, the one thing which was accepted was the principle that the Dáil and Seanad should have accountability and the final say in relation to legislation and restatements. The initial view last week was that a restatement was just that, not new legislation or a change, it was only an administrative matter and that it would not be necessary to come back to the House. The points were very well made last week and I fully endorse what was said in relation to accepting the principle of accountability.
What was also said last week was that we would try to work out the best process by which that could be done. I know there were differing views, particularly between Senator Manning and Senator Costello, as to whether it should be by way of an Oireachtas committee. We said we would try to work out this process. What has come up today gives the House of the Oireachtas the accountability and the final say but does not set up a special committee on that basis because it is for the Houses of the Oireachtas to decide how to regulate their business. Equally, we are not suggesting placing an obligation on the Houses of the Oireachtas to pass a special resolution in this regard.
The amendment states that the Attorney General will be obliged to lay a copy of the restatement under this Act before each House of the Oireachtas as soon as is practicable after it is made and to do so for 21 days. There would be a strict statutory obligation on him to do this, to make the Houses of the Oireachtas aware of his work in the field of restatement and to enjoin him from publishing or otherwise make available a restatement before the Houses have had an opportunity to review the restatements.
It refers to 21 sitting days which is, in effect, as Senator Fitzgerald said, perhaps seven working weeks. The Houses may decide how to deal with laying restatements before them. For example, there are eight different documents before the Seanad which are laid out on the Order Paper under statutory and non-statutory headings. It could be included with those and would have to be on the Order Paper. Alternatively, the House may decide to include a special heading under that section and to draw particular attention to it so that Senators and Deputies would be aware this restatement had been made before the House.
Senator Costello used the word in a negative way and may be right in many cases. If, in reviewing a restatement, a Senator found something with which he or she was not happy or to which he or she felt attention should be drawn, a negative resolution could be passed in the Seanad prohibiting the Attorney General from publishing the restatement or making it available as it was not in line with the views of the Houses of the Oireachtas, or perhaps because it deviated from what the original legislation was meant to be.
This amendment gives the Oireachtas the final say but also upholds Article 15 of the Constitution which gives the Houses powers to make their own rules and Standing Orders. The Houses can make special rules concerning restatements and how to deal with them if they so wish. This amendment does not propose to prescribe how the Houses should deal with this issue.
Questions have also been raised as to how these restatements would be handled in court. It is important to state that where there is prima facie evidence, any challenge would not be made to a restatement per se but to the underlying Act. This is a reformatting of the initial legislation which does not change that legislation.
There are two strong sides to this debate. The initial argument last week was a procedural matter in that a restatement does not need to be scrutinised by the Houses. However, by accepting the various amendments last week and today as to the numbering of paragraphs, gender proofing and so on, we are recognising that anything which would lead people to believe we are changing the legislation should be and has been removed from the Bill.
On the other hand, there were valid arguments that the Houses should be involved in the scrutiny and this is a method of doing so. The amendment gives the Houses the final say. It is left to the Houses as to how they ensure we give a restatement particular attention when it appears on the Order Paper. We must always bear in mind we are not changing legislation in any way, but that this involves a restatement. However, the Houses need to be assured this is what is happening.
I have listened carefully to the debate and see and approve of what the Government is trying to do. However, my central argument was different and comes close to what Senator Costello said in the second part of his contribution. We are dealing with a fundamental issue. We live in an age in which people need to be given information and in which changes need to be explained. Decisions by Government or authorities must be taken in the most open and accountable manner and the public must be involved in what is being done, particularly when there is a possibility of change.
I was non-dogmatic last week as to the form my proposal should take. I suggested that when changes are being made, it would be useful if the Attorney General was present to speak to Members of the Houses and to explain what was being done. This is carried on television, is reported and is on the record. Therefore, if changes have been made, at least there is a record and the Attorney General, or someone acting on his or her behalf, can be questioned.
We are moving into a new phase in the life of Parliament. Within a short time, I hope all parties will be adequately staffed and Members of Parliament will have the expert advice, which few of us have at present, to examine these issues at the level at which they should be examined.
Mistakes can be very costly and can have significant consequences. My proposal is supplemental to what Senator Costello ably stated, namely that it would add an extra dimension. I accept the argument that it is up to the Houses of the Oireachtas to organise their affairs. Nonetheless, if this legislation contained a provision that this would be presented in the manner I stated whereby the Attorney General would appear before a committee of the Houses, one of the committees could take on that task. Alternatively, a special committee could be established. There are difficulties, but if the Oireachtas passes legislation providing that a committee be established, that is the view of the Oireachtas. The Oireachtas itself is making that decision, it is not being made by the Attorney General or anyone else. The Oireachtas is deciding it shall set up a committee and it is up to its internal procedures to determine what sort of committee it should be. The Oireachtas is quite capable of doing so and I do not see any constitutional interference as the Houses themselves have decided to set up a committee. I do not see that as a strong argument.
Like Senator Dardis, I regret we are having this debate on Report Stage. I compliment the Minister of State on her able presentation of the case and on her capacity to listen to the arguments. She has not come into the House as a rubber stamping Minister of State. She is listening carefully and has her own views on the matter. However, the view of the House today and on the last occasion is that some mechanism of the sort I am proposing would improve this legislation and the way in which we do business.
I do not wish to push this issue to a vote but it is an important matter. Is there any way in which the Minister of State could take on board the consensus which exists in the House and take into account that the Houses of the Oireachtas want this measure? The details can follow at a later stage as the Houses are well able to organise business in this regard. I urge the Minister of State to examine whether some compromise can be reached. If a change is made in the Dáil, the Seanad is sitting the following week and could approve that change with great speed.
We are all agreed on the principle involved and the fact that we want to facilitate the Houses of the Oireachtas. However, we inter pret the Constitution in different ways and that is what lands us in half this trouble.
It keeps the Supreme Court going.
My reading of it is that it is the House making rules as opposed to making legislation to make the rules. A House that makes its own rules as opposed to having the force of law are two different things. The amendment does not preclude the House from deciding, for example, on the day on which a restatement is laid before it, that a special committee shall examine the matter and the Attorney General shall be invited to make a presentation, or whatever. One or both Houses may decide to go down that road. By including the 21 day provision, seven working weeks, a restatement will be on the books and will be published unless stopped by the Seanad or the Dáil.
Senator Manning said this was a lazy and passive method but the only people who would be lazy or passive would be Senators or Deputies who let it go without properly examining it. That would not be the Senator's intention. I cannot accept the amendment.
Acting Chairman
Is the amendment being pressed?
Yes, as unfortunately there is no possibility of a compromise between now and when the legislation goes before the Dáil.
Amendment put.
Tá
|
Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe. |
Doyle, Joe.Henry, Mary.Manning, Maurice.O'Toole, Joe.Quinn, Feargal. |
Níl
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, John.Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Tom.Gibbons, Jim. |
Glennon, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Walsh, Jim. |
Tellers: Tá, Senators Manning and Quinn; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Government amendment No. 9:
In page 4, between lines 38 and 39, to insert the following:
8.–The Attorney General shall cause a copy of each restatement made under this Act to be laid before each House of the Oireachtas as soon as practicable after it is made and shall not publish or otherwise make available such restatement until the expiration of twenty-one days on which each House has sat.".
Amendment agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I compliment the Minister of State on the very efficient way she steered the Bill through the House. I still hope, however, she has second thoughts between now and its passage through the Lower House. This is a good and important Bill.
I also compliment the Minister of State. She did a very good job and showed herself willing to discuss and take on board amendments. She dealt with the discussion on her own terms, on which I compliment her. I also compliment the officials on the fine way they handled the legislation.
I also compliment the Minister of State. She took on board quite a number of amendments. I note with regret that Senator Manning pushed his amendment to a vote because it would have been nice to have agreement on the whole Bill. However, there was very little between us – there was a lot more between Cork and Kerry last Sunday.
And there were no penalties.
Ba mhaith liomsa mo bhuíochas a ghabháil leis na Seanadóirí uilig. I thank Senators for their kind comments, which are not deserved. I am glad, however, that my first taking of a Bill through all Stages worked well. I thank Senators for their co-operation.
I assure the House that I agree with much that was said in today's very constructive debate, which added to the passage of the Bill through the Seanad. I will ask the Attorney General to enter into discussions to see how best reassurances can be given to the Houses of the Oireachtas that any legislation passed in these Houses will always have the standing it deserves.
Question put and agreed to.