As agreed, I will speak on amendments Nos. 1 and 2 together. I thank the Minister of State and the officials from the Law Reform Commission who are with us again today. We have had engagements with the Minister of State since we last spoke and I thank her office and staff for that. These have been meaningful and practical and we should reach some sort of reasonable compromise.
This matter we are dealing with today is complex. I have learned an awful lot about it in the past two weeks. It is important, therefore, that we give the Bill time and consideration. The principal purpose of the Statute Law Revision Bill is to repeal the spent and obsolete secondary instruments enacted on or after 1 January 1821 and before 1 January 1861.
That gives some measure of the complexities.
I know that reviewing the Bill is a standard annual practice. I suggested that we might look at this. There was an issue around repealing the Bill. The question was whether we would put revocations into Schedule 2. This one would be one of those.
The process leading to this Bill involved a review carried out by the Law Reform Commission of more than 40,000 secondary instruments - that is a considerable amount of work and I acknowledge the amount of work the Minister of State has done - to ascertain if they were obsolete or were to be repealed or retained. That is where the Minister of State must rely on external professional advice and her Department officials. The 3,367 instruments that will be repealed by this Bill are all listed in Schedule 2. It is proposed to have five instruments that will be retained or listed in Schedule 1. I was proposing to reduce that to four instruments, as opposed to five, as I set out clearly in the Seanad last week. I would take away the requirement for the deletion of the 1685 Proclamation. That is complex and I will touch on it briefly.
I acknowledge the work done by Mr. Michael Merrigan of the Genealogical Society of Ireland. He has been instrumental in raising this issue and I am very much a conduit. I see my role in the Seanad as bringing external issues of concern into this House and give them some sort of airing. That is my function today.
The proclamation deals with authorising the Ulster King of Arms to prevent the improper use of arms, style of esquire or gentleman, etc. The powers of this 1685 Proclamation cannot be assigned to the Genealogical Office for the following reasons. The 1685 Proclamation is based on the royal prerogative that has not been inherited by the State. In the Supreme Court, the Byrne v. Ireland, 1972 Irish Reports, IR, 241, case established that the State did not inherit the royal prerogative.
The 1685 Proclamation provided a regulatory authority for an individual who received a personal royal warrant of appointment from the King to act as an officer of the royal household, and that individual operated as a corporation sole, using the appellation of "Ulster King of Arms". The application for this 1685 Proclamation within the State could not have survived the enactment of the Executive Authority (External Relations) Act 1936 without the express consent upon request by the Government of the Irish Free State up to 1937, Bunreacht na hÉireann, and Ireland between 1937 and 1949, Republic of Ireland Act 1948.
The Ulster King of Arms operated as a crown officer of the State between 1922 and 1936 for, and on behalf of, the King of Ireland. Following the enactment of the 1936 Act, this operation within the State was legally anomalous, acting after 1936 as a crown officer for or on the behalf of the King of the United Kingdom, because the Irish Government made no request to the monarchy for such services to be provided by an officer of the royal household within the State. This effectively removed the authority and application of the 1685 Proclamation within the State.
The retention of the 1685 Proclamation in the Statute Law Revision Act 2015 was argued by some to be an error as the authority for this proclamation was based on the royal prerogative, which the Supreme Court in Byrne v. Ireland, 1972 IR 241, established that the State did not inherit and, therefore, it was non-existent in the State in 2015.
The argument that the Genealogical Office is the lawful successor in the State to the corporation sole known as the Ulster King of Arms is contrary to the legal opinions expressed by a number of Attorneys General, upon which Ministers have advised both Houses of the Oireachtas over the past three decades. The argument that the Genealogical Office is the lawful successor of the corporation sole known as the Ulster King of Arms is without foundation as the necessary documentation explicitly providing for such does not exist to date.
The argument that the 1685 Proclamation and the administrative orders that facilitated the transfer of the contents of the office vacated by the Ulster King of Arms to the State, the National Library of Ireland, in 1943 are foundational documents for the Genealogical Office is without any basis in law and has never been supported by any of the legal opinions expressed by Attorneys General. The legal authority for the State's heraldic services is found in sections 12 and 13 of the National Cultural Institutions Act 1997. I referred to this in some detail in my most recent contribution.
The retention of the 1685 Proclamation, an authority based on a royal prerogative, in the Irish Statute Book is contrary to the expressed purpose of the statute law revision process whereby legislative and regulatory authority would be sourced in post-independence legislation. The intent and purpose of the 1685 Proclamation and its retention in the Irish Statute Book is not compatible with the equality provisions of Bunreacht na hÉireann or the Equal Status Acts. Any additional regulatory powers or functions that may, from time to time, be required by the board of the National Library of Ireland for the delivery of heraldic services in accordance with sections 12 and 13 of the National Cultural Institutions Act 1997 can be requested under section 7 of the Act. The Minister of State would be familiar with that.
I have set out the case. I am a conduit bringing this message and the Minister of State may have different views. I know the Minister of State has given the matter further reflection. Having read all this information into the record, I can say the situation is extremely complex and needs further investigation. There are genealogical organisations within the State. There is the Office of the Chief Herald of Ireland. There is, of course, the Law Reform Commission, which does extensive work in this area. There is possibly a role for the Attorney General to look at this yet again, given the issue has been on the desk of previous Attorneys General. We need to get this right. We in the Republic can talk about titles such as the "Ulster King of Arms". There are always going to be a sensitive issues around words, language and symbolism, and we have to get it right. I ask the Minister of State to consider deferring this matter or seeking further clarification on the points raised. Clearly, there are strongly held views outside this House. People have tuned in today. It is important that we have a response on the record. Having considered all the matters since we last spoke, I would be interested to hear the Minister of State's response. I again thank her and her officials for engaging on this matter.
