Statute Law Revision Bill 2007: Second Stage.

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

I welcome the opportunity to launch this Bill in the Seanad. From previous experience, I know that Members of the House have a keen interest in statute law reform and I am sure that the Bill will have as interesting and thorough a debate as others of its kind.

The Bill is the greatest single statute law revision measure undertaken in the State. It will repeal 3,188 statutes, more statutes than have been repealed by any Act before or since the foundation of the State. For the first time, clarity will be provided to the Statute Book because the Bill contains as its central feature the "white list" of all statutes that will continue in force after its enactment.

The Bill has been devised within the better regulation agenda, which the Taoiseach has pursued vigorously in recent years, and represents further delivery of a key commitment in the Government's 2004 White Paper, Regulating Better . At the core of the better regulation programme is the opinion that we need to address the flow of new legislation and the existing stock of legislation. The flow of new regulations is being tackled through a regulatory impact analysis, which was introduced across all Departments in June 2005. This approach requires Departments to consult more widely before regulating and to analyse in greater detail the likely impacts of Acts and significant statutory instruments before presenting them to the Oireachtas. In this way, proposed legislation will benefit from being subjected to comment by interested parties and will be more comprehensively evaluated in terms of potential downstream impacts.

As we work to improve the quality of legislation moving on stream, we must tackle the substantial body of existing laws and regulations, which is where this Bill fits in. Statute law revision means the process of removing the deadwood from the system, that is, legislation that is obsolete or has lost any modern purpose. Unlike the process of statute law reform, the revision process does not change the substantive nature of the law itself. Its primary objective is to facilitate users of the law — the Judiciary, citizens, business — and to provide greater clarity regarding the legislation that remains in force and pertinent. All Government Departments, legislative drafters and we, as Members of these Houses, stand to gain from statute law revision processes.

The issue of statute law revision is an important element of better regulation, particularly in the Irish context. Our complex history has led to a situation whereby there is considerable uncertainty as to what legislation from prior to independence even applies to this State. We have many laws passed by various parliaments sitting in Ireland between the Norman invasion in 1169 and the Act of Union in 1800 but because records have been lost or destroyed over the years, and particularly during the Civil War, it is impossible to say with absolute certainty what all of these are. We also have laws which were not Acts of Parliament in the modern sense, but are regarded as being of statutory force. We have laws passed by various Parliaments of England and Great Britain that also applied or were subsequently extended to Ireland, even though Ireland had its own Parliament from at least the 14th century onwards. We have laws passed during the period of the former United Kingdom of Great Britain and Ireland, but it is not clear to what extent many of them applied to Ireland.

These and other factors leave us in a position where it is at the moment impossible to say with absolute certainty which laws from before the foundation of the State actually apply in Ireland at the present time. That situation is clearly not in line with our modern regulatory principles of clarity and transparency. That is why we have moved from previous models of statute law revision — which tend to lists those statutes to be repealed — to a new model. This new model is one by which we can clarify exactly which laws continue to apply.

The need for this clarity is the genesis for the current statute law revision process. For the past two years, researchers based in the Attorney General's office have been analysing all of the laws made by those authorities that made laws governing Ireland. These include the various Parliaments of Ireland, England, Great Britain and the United Kingdom. This research has allowed the compilation of a detailed database recording the status of more than 26,000 public general statutes. Of course, many of these have been repealed over the centuries, and many never applied to Ireland in the first place, but they all had to be assessed to find out which was which. More than 4,500 statutes were found that were or still might be in force to some extent.

These 4,500 statutes then had to be assessed in greater detail to determine which of them had any modern relevance. This was a painstaking process involving detailed research and the compilation of voluminous files. Initial decisions were made as to which statutes might still have some modern relevance and which ones were obsolete and could therefore be repealed.

Detailed rounds of consultation then followed, in which Government and outside bodies, as well as members of the public, made representations. This consultation process was facilitated by publication of the lists of statutes on the Attorney General's website. Those lists were in effect the draft Schedules to this Bill and were open to public consultation for a period of several months on two occasions during 2006. The Department of the Taoiseach also published newspaper notices regarding the process and hard copies of the lists were made available by the Office of the Attorney General. Hundreds of representations, on matters large and small, were received, replied to and recorded on the database.

The Bill before us today provides that statutes predating 6 December 1922, where there has been any doubt, or where there is a credible argument that they may still be in force and may still have continuing relevance, will be preserved in the white list set out in Schedule 1. This cautious approach is necessary to ensure this Bill does not inadvertently repeal a statutory provision, which might still have legal effect. However, I emphasise that it is the Government's policy that all of these retained Acts ultimately will be repealed.

In the case of this white list it will be necessary for substantive modern legislation to replace the provisions of these older laws; the old laws can be then repealed. This is a distinct and separate process from statute law revision, which is restricted to repeal without replacement.

The process of substantive replacement of the old legislation, which we describe as the process of repeal and re-enactment or statute law reform, is already underway in a number of areas. For example, almost 10% of the 1,348 statutes on the white list will be retained only for a very short time. This is because 133 of these statutes will be repealed when the Land and Conveyancing Law Reform Bill 2006 is enacted. Senators will recall the provisions of this Bill, which passed this House before Christmas and is now before the Dáil.

The Government's overall programme combining statute law revision under this Bill, together with a co-ordinated series of repeal and re-enactment measures, will ensure that within a short number of years all the legislation on our Statute Book that predates independence will have been replaced with modern laws more appropriate to our modern democracy.

In addition to the clarity which will be conferred by this Bill when enacted, it also will have a dramatic effect on the volume of material on the Statute Book. This Bill will repeal 3,188 statutes, far more than any previous statute law revision measure. In fact, it is more than the entire number of public general Acts of the Oireachtas enacted since Ireland achieved independence in 1922.

It is important to emphasise that the decision to list an Act in either Schedule 1 or Schedule 2 has been based on purely legal reasoning. Where an Act has or may have continuing legal effect, it is preserved by listing it in Schedule 1. Where it is entirely obsolete or has ceased to have legal effect, it is repealed by omitting it from Schedule 1 and it will instead appear in the list of repealed Acts in Schedule 2.

The inclusion of an Act in one Schedule or another should not be taken as being a positive or negative comment on the content of that Act. By repealing an Act we are not necessarily saying we disapprove of it, some of the Acts being repealed were very progressive and positive in their day but they have long since served their purpose.

As I have previously indicated, statute law revision Bills are concerned with removing only laws that have become entirely obsolete. There is a complementary process, statute law reform, that involves changing the content of laws to modernise them. In respect of the Acts on the white list, that process of statute law reform is already under way but will be effected by other legislation.

As I have made clear, this Bill is not the end of the process of modernisation of our Statute Book. It is an important step in that process and will provide a blueprint for future measures, not just of statute law revision but also of substantive statute law reform. Our ultimate objective is to provide the Irish people with a single legislative code which is clear and accessible. This code will contain only laws enacted by the democratically elected Oireachtas, or under European law where Ireland is a member of a community of equal nations. This Bill will be a major step along that road towards clarity and democratic credibility in our Statute Book.

Members may wish to note that while the present Bill deals only with public general Acts, the Government intends to give attention to analysing legislative measures going beyond that category. It is intended, subject to progress with the present Bill, that proposals can be developed to deal with local and personal Acts, private Acts, and statutory rules and orders, which complete the picture of pre-independence statute law. An examination of post-independence law would also fall to be addressed. Obviously, review of these areas would necessitate the bringing to the House of further legislative proposals in due course and I hope that I can look to the support of Members for our ongoing work in this regard.

I will now explain in detail the provisions of the Bill. Section 1 provides a broad definition of the word "statute" for the purposes of the Bill in order that it includes royal ordinances and similar documents that are recognised as having the force and effect of an Act of Parliament. The reason for this broad definition is that the parliamentary system was evolving for many centuries. In early times laws were enacted in ways somewhat different from the modern system and some of them would not conform to the definition of an Act of Parliament as we would understand it. However, these laws were regarded under the constitutional systems of those times as being valid, and they have continued to be recognised as having statutory effect. It is appropriate, therefore to use the term "statute" to cover all these kinds of laws.

Section 2 is the central provision of the Bill. It will provide a fundamental clarification and simplification of the Statute Book by drawing a line at 6 December 1922 and repealing the majority of the statutes passed prior to that date except for certain statutes that are to be specifically preserved.

The first category of exceptions is provided for by section 2(2)(a) which preserves in force the statutes listed in Schedule 1. These are the 1,348 statutes which have or may have some modern relevance. These cannot be repealed until they are first replaced by modern legislation.

The other main category of exceptions is local and personal and private statutes. These are statutes enacted and-or published under different mechanisms from the normal. Local and personal statutes were statutes which were public in the sense that everyone was deemed to be on notice of their content but not general because they only related to specific places or persons. They were published in separate series between 1797 and 1922. Private statutes are statutes enacted under a different mechanism entirely than the normal public general statutes and also relate to specific persons and places. This mechanism is still in use to this day and, as Senators will be aware, a private Act was enacted as recently as 2003, namely the Royal College of Surgeons in Ireland (Charters Amendment) Act 2003.

As more than 33,000 local, personal and private statutes must be assessed, in addition to the 26,730 public and general statutes already assessed, it was thought appropriate to preserve these statutes as an entire category at this time. They will be assessed at a future stage and will be the subject of further statute law revision measures.

Section 2(3) has the effect of repealing a part of the Bill of Rights 1688. This is the only partial repeal contained in the Bill. It arises because some provisions of the Bill of Rights may be of continuing legal relevance and, therefore, the entire Bill cannot be repealed. However certain elements of the Bill of Rights are discriminatory, such as between different religions, and these elements are being removed for obvious reasons.

Section 3 provides for the listing in Schedule 2 of the statutes repealed by the Bill as a consequence of the fact that they have not been preserved by section 2 and Schedule 1. These comprise the 3,188 statutes which did apply or may have applied to Ireland, have not been fully repealed and do not have any continuing relevance.

Section 4 assigns Short Titles to all public general statutes that are in force, are not going to be repealed by this Bill and do not have Short Titles. Sections 5 to 7 amend Short Titles conferred by a number of earlier Acts. These are Short Titles which are unconventional or misleading. The effect of this Bill will be to standardise the Short Titles of all surviving statutes to facilitate and simplify the making of references to those Acts.

Section 8 provides for certain of the early statutes to be proved in court by being produced in certain official publications or in copies from such publications as certified by a specified institution. At present, the only institution specified will be the National Library, although the Taoiseach may specify other institutions. This provision is necessary because of the difficulty, or in many cases the impossibility, of producing original copies of very old legislation.

Section 9 is a savings clause, which is standard for Bills of this type, with some additional provisions. The savings clause is designed to ensure that no unintended consequences arise from the repeals effected by the Bill. One of the most important effects of the savings clause is the provision that where we are now repealing an Act which had itself repealed an earlier Act, our repeal through this Bill does not have the effect of reviving the earlier Act. They will both be repealed.

Section 10 provides for a Short Title and collective citation of the Short Titles Acts. Schedule 1 lists the statutes that are being retained, while Schedule 2 lists the statutes that are not being retained and, in consequence, repealed.

The Bill is a major and historic step toward our ultimate goal of completely modernising the Statute Book. It will allow us to give democratic legitimacy to the body of laws in our Statute Book by giving the approval of the Oireachtas to those laws which are to continue in force, while also cutting out more than 3,000 laws which serve no further purpose. The Bill provides, for the first time in our history, complete clarity as to exactly which laws apply in this State. I hope Senators will enjoy an interesting and productive debate on this subject and I commend the Bill to the House. Finally, I express my appreciation of the people involved in helping us through this interesting process.

I welcome the Minister of State, Deputy Tom Kitt, to the House and commend the officials from the Office of the Attorney General who have dedicated themselves to this initiative over the past several years. The Minister of State has previously come to this House on a similar mission of obliterating non-applicable historic legislation. I find myself in the extraordinary and historic situation of repealing more legislation than was ever enacted in post-independence Ireland. We are taking on ourselves an astonishing and near dictatorial power.

Many of the difficulties outlined by the Minister of State with regard to assessing which of the laws passed prior to independence were relevant to this process could have been avoided had the Four Courts not been burned in the first act of the Civil War. I will say no more except to note that almost 90% of the records, including many ancient ones, were destroyed over a very short period during that episode of our history.

I do not underestimate the task faced by the Minister of State and his researchers in the Attorney General's office with regard to assessing the potential relevance of historic Acts and statutes to modern Ireland. Clearly, the majority were part and parcel of our history, but it could be argued that a small number of the laws we accepted on independence, despite having been at war with Britain, could have had a marginal effect on domestic legislation. The Minister of State and his colleagues had, therefore, to tread carefully and meticulously research each and every Act and statute, regardless of whether it contained one or 100 sections. This House is indebted to the work done behind the scenes over the past several years to bring this project to fruition.

The Minister of State noted that in excess of 1,000 statutes remain in force and have not been included on the list. We will learn in the future whether these will be addressed in similar legislation to this Bill and the Act that preceded it.

Every modern democracy imposes a responsibility for achieving high standards of regulation. Systems have to be put in place whereby ordinary citizens can be fully aware of the law of the land. The Minister for Justice, Equality and Law Reform is beginning to roll out new codified criminal justice legislation which will amalgamate virtually all the statutes affecting the criminal justice system, so that matters such as sentencing are clearly outlined. We need to take that approach on a range of other issues because citizens must be able to comprehend the law without reference to previous legislation. As legislators, we often face the challenge when amending legislation of trying to review several Acts at the same time to make sense of the law. We need to establish unified codified legislation so that practitioners and citizens alike can identify precisely the status of legislation.

The Minister of State said:

Our ultimate objective is to provide the Irish people with a single legislative code which is clear and accessible. This code will contain only laws enacted by the democratically elected Oireachtas.

I am aware of the progress made on pre-independence legislation but how far have we travelled in terms of achieving the ultimate objective? In the course of his remarks he said that one of the few delicacies of this House is our ability to put in place Private Bills. As he rightly reminded the House, the last Bill enacted in that way was the Royal College of Surgeons in Ireland Act 2003. In such Bills, a Senator acts as a sponsor for a private institution or company that makes a petition to the Seanad as a means of bringing the legislation through the House. Even though in recent years we have had few examples, it is an important role of this House.

I will make some general observations about the process of legislation. The Oireachtas got a very severe reprimand from the Supreme Court some years ago and was correctly given a rap across the knuckles for the way in which ministerial orders and statutory instruments in particular are routinely signed off by Ministers without recourse to debate in this House. We have far too much primary legislation in both Houses of the Oireachtas, which leaves very little time to debate secondary legislation — statutory instruments and ministerial orders. The Supreme Court rightly pointed out that the process of decisions by Ministers not being debated in the House either by way of a 21-day rule or resolution must be checked. Where government becomes more sophisticated and complicated and has more application in terms of EU law, there is a responsibility for secondary legislation to be debated in this House and the other House in a much more substantial way than is the case now. We must take heed of the Supreme Court warning.

I was interested to hear what the Minister of State said about the review of post-Independence legislation. It must also be the case that many of the Acts passed since 1922 no longer have particular relevance and application and have been outdated by either new Acts or significant amendments. I would be interested to hear how the Minister of State is doing on that project. The entire revision of our Statute is not just a matter relating to pre-Independence Ireland but also a matter for post-Independence Ireland. On Committee and Report Stages we will have the opportunity to go the various statutes listed in the Schedule, which in effect is the substance of the Bill. At this stage I welcome the ongoing project. This side of the House will always welcome any codified statute that puts to one side redundant statutes and Acts of a previous Parliament. The Minister of State deserves to be congratulated because it is always difficult for the Government Whip to get time on the legislative calendar between his myriad of meetings with Opposition Whips and his duties in the other House. We welcome today's efforts and I give particular congratulation to the staff in the Office of the Attorney General and the unit that has been dealing with this project.

This is very exciting legislation. As the Minister of State was talking I thought about all those centuries ago when clerks would have been bent over desks with very bad light thinking how they would write a Bill, whom it would affect and whether it would be beneficial to the people. I am well aware that the legislators of the time would have been of the elite class and would not have been elected by democracy — or at best by a rough form of democracy. Certainly women did not have much of a say in the Parliament, in the making of the Bills or as voters. I think back to the people who drafted the Bills and the pressures that led to the need for the Bills. There must have been riots, marches, petitions, lobbying, etc., before Bills were produced. It is interesting that these two countries were governed for so long by properly enacted laws, which is also exciting. A country governed by statutes has a certain authority and stability.

The Minister of State hoped that we would continue to support him and his office in what he is doing. I wholeheartedly say that we will. If he has 20 more Bills, either in his present role or in some future manifestation, we will be very pleased to take them here. I congratulate Richard Humphreys and his team, and the Attorney General's team.

Hear, hear.

I used to be a historian before I became a politician. A Bill like this is exciting and interesting and well worthwhile. They have only begun to make a small inroad into the mess of old legislation. For the first time the Bill gives a comprehensive list of the laws predating Independence. It has two parts — a "white list" of Acts retained and as we are not allowed to mention "black" I will say a "grey list" of Acts repealed. There are 3,188 Acts in the "grey list", making this Bill by far the largest statute law revision measure ever completed in Ireland. One would wonder why this and other governments that have been in power since 1922, when we had stopped fighting one another, did not start to address this matter. I know we were trying to live, build houses and schools, and get people sorted out. However, this matter should have been ongoing because we are governed by laws. It is the bedrock on which we exist.

As the Minister of State said, the Land and Conveyancing Law Reform Bill 2006, which has been passed by the Seanad and is shortly to come before the Dáil, will repeal 130 of the Acts on the white list. One modern composite Bill can do that. In coming years, the Government intends that all pre-Independence legislation will be repealed and replaced with modern laws. If the awful thing happened and we had a change of government — that would be on the grey list — I hope the incoming Government would continue this very fine work. It is shocking to hear that we do not know for certain, in this modern era, which laws currently apply to this State. Senator Brian Hayes asked how far along the path we were on this odyssey. Looking at the titles of the Acts and thinking about them represents a kind of odyssey. What will be achieved by the Bill is long overdue.

We are at last moving towards having all of these old laws repealed. These laws simply do not have the democratic legitimacy we are entitled to expect in a modern democracy. Many of the Parliaments which passed these laws were made up exclusively of wealthy aristocratic men. While we can say they were exclusive and elitist, they still passed some very decent laws. We cannot simply put them in a corner with dunces' hats. They passed laws that were relevant to their times.

There appear to be many laws from the 13th and 14th centuries which blatantly discriminate against the native Irish and which try to make illegal the Irish language, Irish law and Irish traditions. It is right and proper that all of these laws should be repealed. We think of the Penal Laws and other laws that had very sad consequences for the Irish people. We learn too of the laws which broke up the Irish monasteries because the English kings decided they were hotbeds of sedition. They thought that in the middle of their prayers the monks were cooking up plots to shoot everyone they met. Many laws were discriminatory and reflected prejudices against certain groups in society. One 11th century statute provides for "Frenchmen to pay ‘scot and lot' ", which was a discriminatory tax applicable only to the French.

Hear, hear. Quite right.

Would Senator Norris have liked that?


George Bush would agree.

No French fries here.

Another Act, the Assise of Arms 1181, forbids Jewish people from owning armour. The only statute which is being partially repealed by this Bill is the Bill of Rights of 1688. It is interesting that there was a Bill of Rights in 1688. Although it discriminated against particular religions, the principle underlying it was fair. Nowadays we have various UN declarations on rights and years of this and that, and the year to be of something else. The Bill of Rights contained many provisions, but it granted a right to bear arms to Protestants but not to members of any other religion — they might go "bang-bang" in the middle of the night. What about the Molly Maguires or Seán O'Farrell and all those people who rose up in rebellion? They were not allowed to have arms.

We are still banning the whiteboys, that is retained legislation.

The Minister for Justice, Equality and Law Reform would not like them.

There would be a smell of sulphur in the air.

There are some interesting local Acts and which I emphasise because they are important. Some statutes relate to Athlone and Westmeath for example Schedule 1, Acts which are retained, including the Meath and Counties of Westmeath Act 1543. This is the Act which divided the historic county of Meath into the two modern counties of Meath and Westmeath. It can be described as the foundation of County Westmeath.

They were getting ready for the Leader.

We are with Longford now. The division into two counties was explained in the Act as being because the western part, which became County Westmeath, was beset by rebels against the King. In common with many statutes relating to local government, it has been listed in the "white list" and is not being repealed at this time.

Schedule 2 contains the Acts which are being repealed including 1254 (38 Hen. 3) [H.M.D.I.] Dublin, Limerick and Athlone granted to Prince Edward. I always knew Athlone was up there with the big towns and cities. They were granted to Prince Edward, the son of King Henry III, the cities of Dublin and Limerick with their counties and the town and castle of Athlone. History does not record how the people of Dublin, Limerick and Athlone felt about being given to Prince Edward. He had a lovely castle to which to bring his paramour or whatever they were called in those times.

The Leas-Chathaoirleach, coming from the west, will be interested in 1733 (7 Geo. 2) c. 19, An Act for repairing the road leading from Kinnegad to Athlone in the County of Westmeath.

It has not been done yet.

It is not done yet.

Wait, there is more to come. Many Acts were passed in the 18th century to facilitate the building and improvement of roads, and these are clearly obsolete in the modern day because we have a national development plan which is doing this.

Do not start on that topic.

No I will not start.

How many hundreds of years ago was that?

We still have some medieval roads.

This was one such Act. It was passed because the road from Kinnegad to Athlone had grown "so ruinous and bad that in the winter-season so many parts thereof are impassable to carriages and dangerous to travellers". The Act provided for the collection of a toll of one shilling on certain vehicles travelling on the road and there do not appear to have been any riots or protests about that. People paid the toll if they wanted to travel.

They could not go on any other route in those days. There was no other road.

I know. They travelled on the great Esker which brought them around Clonmacnoise. The toll was taken to fund the improvement of that road. That is most interesting about Kinnegad and Athlone. It is ironic that nearly 300 years later we are still putting tolls on the modern motorway between these two towns.

Certain kinds of Acts will not be affected by the Statute Law Revision Bill. These are private Acts by which a person may have set up a charitable trust for a particular purpose, such as education or to deal with indigence or for health purposes. An example of such an Act is the private Act of 1761 which incorporated Wilson's Hospital School in County Westmeath. This Act was looked at in detail by the Pre-lndependence Project because the school itself contacted the project to ensure that the Act would not be repealed. I know the school well and it is a fine school in Multyfarnham. It must be subject to trust funding or something of that nature which, if the Act was repealed, would cut it off from the trust. The school still plays as important a role in the community of Multyfarnham as it did 250 years ago and the present Statute Law Revision Bill will do nothing to interfere with the founding Act.

The Minister of State and all who work with him have embarked on a long odyssey. It is necessary in a modern democracy that the project is open and transparent. I was interested to hear that hundreds of people contacted the website when the Attorney General listed it. Of course people are interested because we are all subject to law. The project is time consuming and might perhaps be tedious from time to time, although I would not think so because laws were made by people for people. We give people greater access to modern laws which are created in full consultation which is also interesting. I hope the modern road from Athlone to Kinnegad will be completed quickly and the tolls continue to be paid.

I wish to share time with Senator Norris. I welcome the Minister of State to the House this evening and I am delighted that his officials who were involved in going through the legislation in the Attorney General's office are here. They must have had a great time.

Yes, wonderful.

I would love to have been with them.

The Senator would love to have done it.

Going through all these ancient Acts and deciding what to do about them must have been fascinating because simply reading the Schedules to the Bill was fascinating. These include Acts such as that of 1154 stating that sons of "villeins" ought not to be ordained.

Hear, hear but some of them are.

Under an Act of 1166 vagabonds, strangers, were not to stay more than one night in a house unless they became sick or their horse died. That was reasonable but not having seen the legislation I do not know why they had to be kicked out so rapidly.

Many Acts dealt with marriage, not just between the King and Queen Jane or such matters but more general matters. It is interesting how important that was because it was connected with possessions. Widows were not to be forced to marry. That is a serious problem in some parts of the developing where men die of AIDS and their widows are forced to marry another member of the family, to keep property within the family. Heaven knows why it was so useful at that time to have such legislation.

There are Acts to deal with the recognition of foreign marriages, in 1867 Odessa marriages, 1884, Greek marriages. In 1851 an Act was passed for the removal of lunatics from India. I hope it was only to remove Irish lunatics from India and that we were not expected to take everyone in. It must have been a most exciting project and I congratulate the officials involved on their work.

I am glad to hear that more will be done because when Senator Quinn and I discussed this before the debate he was anxious about some Acts such as that of 1473, on the treatment of foreign merchants which puts them under the protection of the king, whoever he might be. There is a great deal of legislation that requires further investigation and I am delighted to see that these last two Bills have begun this work so well.

I am perturbed however that we seem to be incapable of updating the phraseology we use in some of our legislation. The Leader will recall that I was very angry when the Prisons Bill was introduced before Christmas and the term "persons of unsound mind" was again used. Under that Bill, a person may lose his or her livelihood, even though there is no medical definition of "persons of unsound mind". I thought this extremely unfair and the Tánaiste's excuse regarding its inclusion related to the fact that it is contained in 157 other items of legislation. That is no reason for continuing to use the term in question. If we correct these definitions, they can be changed in all the items of legislation in which they appear. This would be preferable to having terms such as "imbecile", "moron", etc., appear in statutes. We should not use such terminology or allow it to remain in place, particularly when we are in a position to take action in respect of it.

I was particularly interested in the most recent report of the Law Reform Commission, LRC, on vulnerable adults and the law, which referred in particular to the Lunacy Regulation (Ireland) Act 1871. The latter is completely out of date but remains on the Statute Book. The LRC suggests that we should investigate the position and was helpful to include replacement legislation — this could be modified by the Houses — in an appendix to its report. The Act to which I refer cannot just be repealed, it must be replaced.

It should be replaced by legislation couched in a modern idiom.

Exactly. We should be capable of replacing it, particularly in light of the expert guidance provided in the report to which I refer.

I am glad Senator Lydon is present. The LRC's report discusses the sort of approach that should be adopted regarding people's capacity to do things. It states that the status approach to capacity involves making an across-the-board assessment of a person's capacity and that it views capacity in all-or-nothing terms and involves concluding that a person has no legal capacity based on the presence of a disability, rather than an assessment of his or her decision-making capabilities. The report also refers to the functional approach and states:

The functional approach to capacity involves an issue-specific and time-specific assessment of a person's decision-making ability. It is related to ability to make a particular decision at the time it is to be made. This is in sharp contrast to the all-or-nothing, one-off nature of a status approach to capacity.

The LRC recommends that we should choose the latter approach, whereby an adult's legal capacity is assessed in respect of the making of a decision at the time it is to be made.

Given that we are being provided with such guidance, why are we being so slow in respect of taking action in this important area? The commission has recommended that where inappropriate terminology is used in existing legislation in respect of people who lack capacity, such as in the Lunacy Regulation (Ireland) Act 1871, this should be repealed and replaced. In addition, it provides guidelines as to what action should be taken in this regard. I recently asked the Leader whether the Minister of State, who is also Government Chief Whip, might add this — he is lifting his eyes to heaven — to the already quite long list of legislation to be dealt with before the end of the session.

Another item of legislation about which I am concerned is the Marriage of Lunatics Act 1811. What is the meaning of that Act?

It means they were going to get married.

The Act in question remains on the Statute Book and relates to people who were wards of court. We included in the Civil Registration Act 2004 that people who are wards of court must have a certificate from a doctor in order to get married but I do not know what is the intention behind this.

There is so much legislation similar to that to which I refer which remains on the Statute Book. It is fine to remove legislation relating to Princess Sophia's naturalisation and the King and Queen Jane. However, we must address legislation that either needs to be replaced or that should be repealed. I hope progress will be quick in this regard because it is not right to describe people in terms that no one would dream of using in public.

I thank Senator Henry for sharing time. I welcome the opportunity to contribute to the debate. I had thought I would be delayed elsewhere but I would not have missed this for the world because it is fascinating. I echo the compliments expressed to the members of the team present in the Gallery, who have done a remarkable amount of work. I am reminded of what Napoleon said with regard to codifying French law under the Code Napoleon. Before Napoleon took this step, the law in France was, like Paris, chaotic and medieval. This was at a time when Dublin was being developed as the first fully planned city in Europe. The work done by those present in the Gallery represents an enormous undertaking and I congratulate them.

I agree with Senator Henry that it would have been immense fun to engage in such work. What we are being presented with is a complete, documented social history. I will return to that matter later because I first wish to make some reasonable and rational points before indulging myself, as others have done, in the delights of the archaeology of the legal system, which are revealed in this rather large Bill.

So much work has been done and I hope we have taken a further step and have, or are about to, catalogue these Acts by subject. The latter would be extremely helpful, particularly if one could browse the entire list of Acts relating to conveyancing or whatever through the use of computer technology. When new Bills are produced, they always have attached to them a rigmarole of the Acts which must be repealed. In this Bill, we are being presented with a raft of such Acts.

My second point is that I hope the important process in which we are engaged will continue. I recall with great pleasure the Leader's digressive and discursive contribution to the debate on previous legislation in which she commented upon the arcane delights of Acts such as those to which the Bill refers. This is an immensely interesting subject because it provides one with a picture of the history involved. The process should continue. We dealt with legislation of the sort before us on a previous occasion. May I steal a phrase and state that there is "A lot done, more to do". Does that ring a bell?

The Local and Personal Acts have not yet been examined. There are also private Acts and the Statutory Rules and Orders. As Senator Brian Hayes indicated, some of the legislation and statutory instruments introduced post-1922 needs to be examined. Members on all sides are of the opinion that this work is not finished and we look forward, in the knowledge that a great deal has been already done, to a further tidying up operation.

A constituent contacted me regarding the Protection of Animals Act 1911, which remains on the Statute Book. This is an extremely defective item of legislation. I spoke to the principal adviser present in the Gallery — he has been already named and rightly celebrated — who indicated that there are two processes at issue here. What is being done in the Bill merely involves retaining or repealing legislation. The other form of Bill in this area involves repealing and replacing legislation. Let us move on and engage in repealing and replacing legislation because it is ridiculous to have in place an Act from 1911 that does not meet current conditions. Luckily, we did not experience incidents similar to those which incurred in Britain involving children being savaged by pit bull terriers, Staffordshire pups, etc. However, there is nothing to prevent them from happening in the future and we need to consider the matter before a tragedy occurs. I hope, therefore, that consideration will be given to introducing the relevant legislation.

I disagree with colleagues in respect of the Irish language. It was a wonderful idea to try to extinguish the Irish language by legislation. We are the most awkward, difficult, rebellious people on earth. The Irish language has been a total calamity. The best way to revive it would be to outlaw it and to make the penalty for using it death by hanging in a public place. There then would be queues of people outside Linguaphone intent on learning the language.

There would be no fear of the Senator——

Tá an Ghaeilge go flúirseach agam, a Sheanadóir. We will have none of that old guff from Senator Ryan.

What is Senator Norris uttering?

Trinity College had the first chair of Irish in this country. As chairman of the Friends of the Library I presented to the library the Aibidil, which was the first printed book in Irish. It was written by a Canon in St. Patrick's and printed——

The spirit of W.B. Yeats.

I hope that does not make the Senator feel any more inferior. If he is feeling rotten tomorrow, I will pay for the treatment for the inferiority complex because Trinity is a very fine institution, as is UCC.

There is an election in the offing.

On the Bill of Rights 1688, the Leader was right to hone in on that. What interesting legislation. That was the restoration of the Stuart monarchy, the glorious revolution, and the Bill of Rights was to secure religious liberty because people were terrified that the Stuarts were secretly Roman Catholics. The libertarian aspects of the Bill have been retained. The one being got rid of is the one that permitted only Protestants to bear arms. It is about time that one was repealed. I have no difficulty with that.

That is jolly good of the Senator.

It is rather decent of me. This is a real compact history of the country. The first one mentioned is the erection of castle and fortifications at Dublin — that takes it back to 1204 — and the establishment of fairs at Donnybrook. It probably goes on to the extinguishing by Act of the fairs of Donnybrook because they became so outrageous. They added the word "Donnybrook" into universal language.

I am very pleased, as a former member of the board of St. Patrick's Cathedral, to have the Act of 1474, the Confirmation to St. Patrick's Cathedral Dublin of foundation etc. and especially the Constitution called Dignitas Decant etc. retained, and the Marsh’s Library Act 1707, also a period of extraordinary religious turbulence, when the great Bouhéreau came here and donated his entire library. Archbishop Narcissus Marsh left money to erect that beautiful building in St. Patrick’s Close.

I am most interested in the Whiteboy Act, which is being retained. Apparently, there was a Supreme Court case in the past 20 years or so which held that it was still active. That is particularly interesting because this very night there is a television programme on RTE about the whiteboys.

No. That is about the Molly Maguires.

But they were regarded in America and so described as a branch of the whiteboys, and they were so described this morning in an advertisement on RTE.

It is on at 9.30 tonight.

We had better hurry up this debate. I want to mention two other matters.

Senator Norris, I am informed your time is concluded.

I believe I have a minute remaining. I will only take half of it. The General Post Office Dublin Act, establishing that wonderful building in O'Connell Street designed by Francis Johnston, is being retained as is the Dublin Science and Art Museum Act 1884. We should be grateful to the RDS because they took over this building from the Duke of Leinster and preserved it. They had their science reading room, lecture theatre and concert hall and they built the wonderful cultural complex of the National Museum, the Natural History Museum, the National Gallery and the National Library. This is the Act that led to the foundation of the museum. We all stand greatly indebted to the people of the Royal Dublin Society.

I wish to share seven minutes of my time with Senator Lydon.

Is that agreed? Agreed.

I welcome the Bill which is a fascinating exercise. I compliment the team involved in it. We are very much in their hands as they have the opportunity of studying the legislation and seeing what might or might not be relevant. Most of the legislation served a purpose in its time although there were some dead letters then as now.

Among the Acts to be repealed is the Freedom of Movement of the French in the Realm Act 1291. I suspect that was an Act to restrict the freedom of movement of the French in the realm. That should certainly be got rid of.

There are a number of Acts Senator Lydon might talk about, including the Freedom of the Church of God Act and the Application to the Lord King if any of his officials are to be excommunicated, not to mention St. John of Jerusalem. I am glad to see the attainder of my ancestor, Shane O'Neill, repealed. Alas, it did not stop his head being put on a spike outside Dublin Castle in 1566.

There is one Act that should be examined more carefully because it has an ongoing relevance. I refer to an adventurer called Erasmus Smith. To this day, the Erasmus Smith fund is applied, as a result of a legal settlement in the late 1930s, to the Abbey School CBS, Tipperary, but I believe there are also Erasmus Smith scholarships in Trinity College. It was divided into two halves in the 1930s — a Catholic half and a Protestant half. We must ensure the Adventurers Subscriptions Acts of 1640 do not affect that. I draw that point to the Minister's attention. I notice with interest that the Irish Free State (Agreement) Act of 1922 is to be repealed, something of which I entirely approve.

I am disappointed that the Whiteboy Acts are being retained. I hope it is not to allow the Minister for Justice, Equality and Law Reform denounce the rebels of the 18th century. One of the great judicial scandals of the 18th century, 1766, was the execution of Fr. Nicholas Sheehy under the allegation that he was a whiteboy. It is somewhat of a stain on our Statute Book that such legislation should be retained a moment longer than necessary.

I wish to make one further point of substance. It is true in general that we should have a Statute Book that is consolidated and codified, similar to the Code Napoleon, sweeping away the clutter of previous centuries. However, we must remember — I am mindful of a number of symbolic items of legislation — that we are not as yet a united country. We could compare notes with our fellow rebels in America on whether there might be some merit in retaining two of the statutes that are part of the basis of representative government as opposed to democratic government, which are not quite the same. One is Magna Carta, which is being retained currently, and the other is the part of the Bill of Rights which would have a great deal of meaning to another tradition in this island. Some care needs to be taken in this respect. I am mindful of the broader political implications. This brings to mind philosophical thoughts. I would not be an unmitigated Burkean but I would not be unmitigated French revolutionary either. A balance needs to be found.

There are many amusing elements of this legislation that I do not have time to go into. I will hand over to Senator Lydon.

Thank God for the men of 1916 who ensured we can make our own laws and not depend, as we did for 800 years, on those of our nearest neighbour. It is astounding there are 4,500 statutes that may be still in force and that 3,188 of these may still apply. As Senator Mansergh asked, because of the inexorable move towards a united Ireland, have we taken into account consulting the people in Northern Ireland about the possible implications of removing some of these laws and statutes to which they cling and are probably still law in their part of the country?

Why are some of these laws to be retained? It beggars belief, as Senator Norris said, that we are holding on to the Fairs Act 1204, whose subject matter is the erection of castle and fortifications at Dublin and the establishment of fairs at Donnybrook, Waterford and Limerick? Why are we holding on to the City of Dublin Act 1215, whose subject matter is the annual rent for Dublin city? Why the Sheriffs Act 1293, about the appointment of sheriffs and the Treatment of Foreign merchants Act 1473, which put foreign merchants under the protection of the King? Members may be interested in the Parliamentary Privilege Act 1471 until they find it deals with the freedom from arrest of Lords coming to Parliament, and their servants. I see less point of the Courts Act 1476 that lays down that the Lords must wear their robes in Parliament. It beggars belief that the Marriage (No. 2) Act 1537, which concerned the succession between the King and Queen Jane, has any relevance to the Ireland of today. The same can be said of the Piracy Act 1613 and the Pawnbrokers Act 1634.

I am delighted this is an ongoing process. I believe, however, we should have been given a more detailed explanation of what these Acts involved. There have been times we have rushed legislation without going into the detail. We should be informed if the removal of some of these statutes could have various implications. I am sure the researchers did a good job but sometimes they may make mistakes.

Seans go bhfuil tagairt nó dhó dár dteanga dúchais i measc na reachtaíochta atá le scriosadh. Táim ag smaoineamh ar thosú an fheachtais chun deighilt a chur i bhfeidhm idir — mar a deir an tseanreachtaíocht — "the Irish enemies and the English". Is mar sin a luaitear iad, agus b'fhéidir gur cheart dom labhairt as Gaoluinn beagáinín. Tá rudaí ann, go mórmhór sa reachtaíocht a bheidh á coimeád i bhfeidhm againn go ceann tamaillín.

My first impression about the range of legislation to be repealed and revised was how much of it related to drink.

Plus ça change.

In the list of statutes I found numerous references to drink through titles concerning either beerhouses, spirits, drunkards or inebriates. I yet have to meet a lawyer who can tell me the difference between a drunk and an inebriate.

One is merry and the other sad.

One is a solicitor and the other a barrister.

Among the team of very brilliant people who drafted this legislation is a good friend and occasional adviser of mine. I hope he will explain to me the difference between a drunk and an inebriate. I suppose it is the difference between depression and elation.

It is time we dispensed with so much of the offensive language contained in legislation such as "lunatics", "imbeciles" and so forth. There is the case for a separate and focussed research group to eliminate this appalling language that is still carried forward. It is almost 15 years since I heard a Minister for Justice accept that the language was out-of-date but we are still waiting for it to be dispensed with.

I share Senator Lydon's wonder as to why legislation dealing with the dress of Lords and their right, and that of their servants, not to be arrested on the way to Parliament is necessary legislation to be retained in the Republic. There are wonderful phrases in some of the statutes such as the question of illusory appointments. It brings to mind the more recent controversies about appointments to State boards which in some cases appear to be fairly illusory.

Some things never change.

Another statute dealt with the abandonment of railways. It makes one wonder how much the world really changes. I was fascinated by the Tithing of Turnips Act 1835. I accept the Minister of State may not be able to cast some light on this, unless he has been doing a wonderful amount of reading. Why is legislation dealing with the tithing of turnips which have been severed from the ground being retained?

Joking apart, this is a wonderful exercise in learning our social, as distinct from our military, history. Why does this revision exercise begin with legislation from 1169? Ireland had a code of law before 1169.

Yes, the Brehon law.

Brehon law is referred to in one of the statutes being given a stay of execution. Are we effectively saying that there was no rule of law before 1169, the year of invasion?

Interesting themes can be identified in the evolution of legislation. One is the gradual progression of the abolition of slavery in which the British Parliament was the most enlightened in the world at the time. One of the great advocates for the abolition of slavery was the Liberator, Daniel O'Connell. He refused to visit the United States during his political career because of the existence of slavery there. When he met political visitors from a state in the US where slavery was retained, he refused to shake hands with them. I did not appreciate until recently the extraordinary consistency of his liberal beliefs. It was not just about Ireland. He had extraordinarily enlightened views on slavery and colonialism. I accept he was not very enlightened about the rights of working people.

He was not enlightened about the rights of women except in a certain category.

Yes, but 200 years ago no one was enlightened about women's rights. Even women were not enlightened about their rights. The slavery theme grows and one can observe a timeline in the increase of the ferocity of the legislation against it.

Since I was first elected to the Seanad, I have always argued the phrase "vagrancy" should not exist in legislation. It is not as offensive as "imbecile" or "lunatic" but it is a product of another time. It is a judgment and presumption about very poor people.

I am intrigued by the Irish Musical Fund Act 1794 and legislation concerning disorderly houses. I presume the latter refers to drink rather than politics.

Of course not.

I found the phrase "reproductive loans" amusing and shows the wonderful way language changes over centuries. I was intrigued to find references to the national debt.

Debate adjourned.