Interpretation Bill 2000: Committee Stage.

This meeting has been convened for the purpose of the consideration of the Interpretation Bill 2000. I welcome Deputy Mary Hanafin, Government Chief Whip and Minister of State at the Department of the Taoiseach, and her officials.

I suggest that we consider this Bill until 4 p.m. If we have not concluded by then a further meeting will be arranged. Is that agreed? Agreed. I further suggest that we break at 4 p.m. until 4.20 p.m. before reconvening to consider the Unclaimed Life Assurance Policy Bill 2002 with the Minister for Finance.

In the unlikely event that our deliberations on this Bill conclude earlier, I suggest that - if it is possible and officials are available - we could deal with the second Bill immediately after the break rather than waiting until 4.20 p.m.

I understand the Minister for Finance will not be here until after 4 p.m. The point is taken but it may not happen today.

We will now proceed to consideration of the Bill. A note has been circulated for the information of members. It is proposed to group amendments, as set out in the document, for the purpose of the debate.

SECTION 1.

I move amendmentNo. 1:

In page 5, line 14, to delete subsection (2) and substitute the following:

"(2) This Act comes into operation on 1 January 2004.".

I indicated on Second Stage that, following the Law Reform Commission's consultation document, a number of amendments I am bringing forward today are in keeping with its proposals.

This is a technical drafting amendment. The proposed Act will apply to all statutes and subordinate legislation after 1 January 2004 and that date is now proposed for convenience of application. The Bill, as published, provides for commencement on 1 January 2001. In respect of subsection (2), section 7 of the Bill, as initiated, allows for greater use of the active voice rather than the future imperative. Since that section applies to the Bill, a greater use of the active voice in the Bill itself is now proposed. Accordingly, the "shall" in "shall come into operation" in subsection (2) is proposed to be replaced by "comes into operation".

Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.

Amendments Nos. 2 and 12 form a composite proposal and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 5, subsection (1), line 28, after "Act" to insert "and references, in relation to a statutory instrument, to 'made' or to 'made under' include references to made, issued, granted or otherwise created by or under such instrument".

These are technical amendments which will allow the shortening of technical language in Acts of the Oireachtas and statutory instruments where a number of different types of statutory instruments, as defined by the Bill, may be made, issued, granted or otherwise created, it will only be necessary to use the word "made" to cover all means of creating them.

Amendment No. 12 takes account of amendment No. 2 by shortening the language used in the Interpretation Bill 2000.

Amendment agreed to.

Amendments Nos. 3, 6, 7, 20, 23 to 29, inclusive, 40, 43, 44, 46, 48 to 51, inclusive, 53 and 56 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 3:

In page 5, subsection (2), line 31, to delete "shall be" and substitute "is".

This is a technical amendment. Section 7 of the Bill, as initiated, allows for the greater use of the active voice, rather than the future imperative and, since that section applies to the Bill itself, a greater use of the active voice is proposed.

Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.

I move amendment No. 4:

In page 6, subsection (1), line 1, to delete "hereby".

This is a technical amendment. The current drafting style is to restrict the use of "hereby" to only where it is necessary or appropriate. The word is not necessary in this context and it is, therefore, proposed to delete it.

Amendment agreed to.
Amendment No. 5 not moved.

I move amendment No. 6:

In page 6, subsection (2)(a), line 7, to delete “shall” and substitute “does”.

Amendment agreed to.

I move amendment No. 7:

In page 6, subsection (2)(b), line 17, to delete “shall” and substitute “does”.

Amendment agreed to.
Section 3, as amended, agreed to.
Section 4 agreed to.
SECTION 5.
Amendments Nos. 8 and 9 not moved.

I move amendment No. 10:

In page 6, subsection (1)(b), line 35, to delete “which” and substitute “that”.

This is a technical amendment to align with the new subsection (2) of this section.

Amendment agreed to.
Amendment No. 11 not moved.

I move amendment No. 12:

In page 7, lines 8 to 20, to delete subsection (2) and substitute the following:

"(2) In construing a provision of a statutory instrument-

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made,

the literal interpretation may be departed from and preference given to the interpretation based on the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.".

The select committee went into private session at 2.17 p.m. and resumed in public session at2.19 p.m.

Amendments Nos.1 to 3, inclusive, to amendment No. 12 not moved.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."

I welcome the Minister of State. As this is a highly technical Bill, I am not sure if we will be too engaged with it. Although they were not moved, the substance of Deputy Burton's amendments was that where an apparently absurd interpretation of the legislation was deemed reasonable by a court, the reinterpretation of criminal offences by the courts should be excluded. She was suggesting a valid provision: a person should not be convicted on the basis of a judge's reinterpretation of something that was not certain in the legislation. I would like to discuss the substantive point of Deputy Burton's amendments: if it cannot be discussed today because the amendments have not been moved, perhaps the Minister of State will prepare a response for Report Stage.

To return to the question of interpretation by the courts, I notice the Minister of State is intending that the interpretation be based on the Act and the text of any instruments developed under it. One thing omitted from this is the debates of the Houses of the Oireachtas which would make quite plain the intention of the Oireachtas in deciding and voting on amendments or sections. Why are interpretations being confined solely to the text of the Act? Why is the intention of the Oireachtas not to be clarified by referring back to the debate in the Oireachtas which would undoubtedly help? A wealth of information during Second and Committee Stage debates about legislative provisions is being ignored. The scope for interpretation is only to focus on the actual wording of the Act as an indication of what the Oireachtas intended. Clearly, if we are dealing with cases of ambiguity, the reason the problem will have arisen, the case is strong for going back to the original debate to see what was intended.

The section is designed to operate in very limited circumstances, which answers Deputy Burton's concerns about the criminal aspect. It is intended to provide a statutory basis for what the courts are already doing, which is resorting to the plain intention of the Oireachtas, but only where they find it obscure, ambiguous or absurd. The use of the word "ambiguous" is considered to be an integral feature of the section because it delineates the circumstances of the application. If I was to accept the amendments which have not been moved, it would make the whole section relatively pointless because it would result in that which Deputy Bruton does not want to happen: it would almost preclude the courts from resorting to the intention of the Oireachtas.

The general view is that the courts, through case law, should develop the principles for interpretation. We enact legislation and the courts interpret it and continue to develop their case law. The Law Reform Commission mentions in its report the use of Dáil and Seanad debates, stating:

. . . more objections may be raised to the use of this type of extrinsic aid, than to the other types already discussed. This is principally because of the difficulty involved in distinguishing between the true intention of the legislature and the statements made by the government about that intention.

We all understand that sometimes we are not exactly clear, as a composite group, of our intention. The intention of the section is to make sure it is used in very limited circumstances and does give a statutory basis for what the courts are already doing.

That is not a very convincing explanation. If the Oireachtas leaves something ambiguous in the text, it seems that consulting the debate might at the very worst shed some light on the matter. There are instances where it would not because of the ambiguity of the Minister and Opposition spokesperson debating it, but there seems to be at least aprima facie case for the debate shedding some light on any ambiguity. It is not sensible to rule it out ab initio. It may be cumbersome for the courts to trace the debates, but whoever wrote the briefing note stating the true intentions of Ministers are hard to construe from what they say was not very complimentary.

That is not actually the briefing note. We are speaking as legislators sitting around this table. As we said at the time, if one was to look at the actual Second Stage debate on this Bill, it would be very difficult to interpret what it was setting out to do. The courts still have the right to look at the debates, and they do, although less frequently, to see what the intention was. What we want to avoid is for the Minister to end up reading into the record his interpretation of the Bill rather than providing for it in the text of the legislation. We do not want to be depending on this. At no stage does the section or any other preclude the courts from looking at what we said in the House.

That last sentence is what I dispute. It appears to say the intention can be ascertained from the Act as a whole. I do not accept that the Act as a whole includes the Dáil debate on it. I understand it to include just the text. Therefore, we are directing people to look solely at the text. They may have the discretion to go beyond that, but we seem to be giving them the green light to consider not doing so. I will not make a meal of this, but it appears that a source that might shed light on ambiguity is being excluded.

I understand what the Deputy is saying: obviously, anything that would help in the interpretation of legislation is important. In many circumstances Oireachtas debates have helped in that interpretation and the courts have used this. My understanding of the section, however, is that it does not preclude them from doing this. They may still continue to look at the Oireachtas debates to see the intention behind legislation. We are trying to have the courts interpret the Minister's speech on the legislation rather than focusing on the substantive text. The Deputy may wish to raise this matter again.

I do not know anything about this; it is not my field.

Question put and agreed to.
NEW SECTIONS.

I move amendment No. 13:

In page 7, before section 6, to insert the following new section:

"6.-In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in an Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of the Act or the making of the statutory instrument, but only in so far as its text, purpose and context permit.".

Amendment No. 1 to amendment No. 13 not moved.
Amendment No. 13 agreed to.

Amendment No. 14 and amendment No. 1 to amendment No. 14 are related and may be discussed together.

I move amendment No. 14:

In page 7, before section 6, to insert the following new section:

"7.-(1) In construing a provision of an Act for the purposes of section 5 or 6, a court may, notwithstanding section 14(g), make use of all matters that accompany and are set out-

(a) in the case of an Act of the Oireachtas, in the signed text of such law as enrolled for record in the Office of the Registrar of the Supreme Court pursuant to Article 25.4.5° of the Constitution,

(b) in the case of an Act of the Oireachtas of Saorstát Éireann, in the signed text of such law as enrolled for record in the office of such officer of the Supreme Court of Saorstát Éireann as Dáil Éireann determined pursuant to Article 42 of the Constitution of Irish Free State (Saorstát Éireann),

(c) in the case of any other Act, in such text as corresponds to an enrolled text to which paragraph (a) or (b) relates.

(2) For the purposes ofsubsection (1), it shall be presumed, until the contrary is shown, that a copy of the text of an Act which is required to be judicially noticed is a copy of the text to which subsection (1) relates.”.

This amendment takes into account views expressed to the Attorney General by the Law Reform Commission and contained in its report, Statutory Drafting and Interpretation: Plain Language and the Law. The commission, in its report, recommends the repeal of section 11(g) of the Interpretation Act 1937. That Act provides that marginal notes and cross headings used in the Acts of the Oireachtas and statutory instruments are not part of the Act or statutory instrument and that the courts are expressly precluded from judicially noticing them. The principle here is that while side notes and cross headings are printed with each Bill and Act, they are not voted upon as the Bill proceeds through the Houses. In other jurisdictions they are not voted upon but there is no statutory prohibition on the use of marginal notes.

Case law demonstrates the willingness of the Judiciary to refer to marginal notes. There is a fine balance required between allowing the Judiciary to make use of side notes which are printed with the Act signed by the President and the fact that, although accompanying an Act when it was a Bill going through the Houses of the Oireachtas, they were never voted upon. They could, however, be of assistance in cases of difficult interpretation, for example in cases where section 5 of the Bill or proposed section 6 of the Bill apply. The Attorney General believes it is necessary to strike a balance. Accordingly, it is proposed through this amendment to allow the courts to refer to side notes to assist in those difficult cases to which section 5 or proposed section 6 of the Bill relate but only where they are included in the enrolled copy of the Act - the copy signed by the President and enrolled in the Office of the Registrar of the Supreme Court, as evidenced by an official stationery office print or its equivalent pre-1922 print.

To provide for a wider set of cases than proposed in this amendment would require procedures of both Houses of the Oireachtas to be changed so that side notes etc. became a formal part of an Act. Even if this was done procedurally by a Standing Order of both Houses, it could not cover legislation that has already been enacted. In addition, if side notes and cross headings were to become part of an Act, it would cause a difficulty, insurmountable in certain cases, with consolidation Bills, where existing sections are split, amalgamated or put into new parts or chapters, as was the case with the Taxes Consolidation Act 1997. It could also cause difficulties with proposed restatements under the recently passed Statute Law (Restatement) Act, 2002.

What balance is the Attorney General striking? If there are difficulties interpreting these side notes, and the courts could interpret them in Acts signed by the President, who is the arbiter of whether they go into the Act? These notes are helpful interpretations attached for the benefit of the Oireachtas while debate is taking place. Who decides if they will be included in the version signed by the President and can be interpreted by the courts as a result?

They are always in the Bill and go through the House but they are not voted upon.

The Minister of State said they could not be given this status when Acts are consolidated and, therefore, would lose the capacity for interpretation in the courts in most instances.

Under the 1937 Act they could not.

What are we proposing then? Can side notes and headings be interpreted by the courts in all circumstances?

We are saying that they can be looked at.

In all circumstances?

Even though they are not voted upon by the Houses.

Does that include the explanatory memoranda?

Deputy Burton makes the point that if they can be interpreted by the courts, why can they not be amended by the Oireachtas? We should be able to amend headings. Are we precluded from amending headings and side notes?

They do not form part of the Bill. They are helpful notes for our work in passing the legislation. Doing what the Deputy proposes would cause us to take more account of what appears in the side notes.

Amendment No. 1 to Amendment No. 14 not moved.
Amendment agreed to.

I move amendment No. 15:

In page 7, before section 6, to insert the following new section:

"8.-Where-

(a) an Act or portion of an Act (whenever passed)-

(i) provides that summary proceedings for offences under it may be prosecuted by a specified person, and

(ii) it is subsequently read together as one with any other provision of another Act, and

(b) an offence is created under that other provision which can be prosecuted in a summary manner but no express power is given to the specified person to so prosecute,

then, the specified person may bring summary proceedings for an offence under that other provision unless some other person is specified to bring such proceedings.".

If a later Act makes a textual amendment to the earlier Act's offence provisions, then it is clear that if a Minister was given the power to prosecute under the earlier Act, he still has the power to prosecute under the amended Act. Where the later Act, or part of it, relating to an offence is not a textual amendment of the earlier Act, but those Acts or development provisions are to be read together as one Act, the question arises as to whether the Minister could prosecute in the absence of an expressed power given in the later Act. If the later Act, or the relevant portion, is to be read together with the earlier Act containing the power of the Minister to prosecute, the Minister will have the power to prosecute under the new provision as well, unless someone else is expressly given that power in the later Act. It can be noted that this provision covers all Acts whenever passed.

If the offences section of an Act is amended, the Minister can prosecute the new offence even if he has not explicitly amended the prosecution section of the Act.

Unless someone else is explicitly given the power.

This would not be retrospective.

Amendment agreed to.
SECTION 6.

Amendments Nos. 17, 21, 30 to 34, inclusive, 36, 37, 39, 41, 45, 55, 62 and 64 are cognate to amendment No. 16 and shall be taken together by agreement.

I move amendment No. 16:

In page 7, subsection (1), lines 22 and 23, to delete "construed" and substitute "read".

This Bill is concerned with plain language. These are technical amendments replacing the word "construed" with the more common "read". It can be noted that the words "shall be" are being kept to preface "read". This is because it imposes an obligation on the reader of the subsection. It is intended to limit the use of the future imperative "shall be" to cases imposing an obligation on a person or body.

Amendment agreed to.

I move amendment No. 17:

In page 7, subsection (2), line 27, to delete "construed" and substitute "read".

Amendment agreed to.
Section 6, as amended, agreed to.
NEW SECTIONS.

I move amendment No. 18:

In page 7, before section 7, to insert the following new section:

"7.-An enactment continues to have effect and may be applied from time to time as occasion requires.".

This amendment takes on board the views of the Law Reform Commission to the Attorney General. The commission was concerned that the wording of section 7 of the Bill as initiated might suggest that the object of the provision is to catch some change in meaning of the language over a long time. This is not the intention, as indicated in the explanatory memorandum to the Bill. The amendment removes the possibility of such interpretation. As with the section as initiated, the amendment will still facilitate a greater use in future legislation of the active voice - a person who contravenes a certain section is guilty of an offence, instead of the future imperative that a person shall be guilty of an offence. This agrees with the Law Reform Commission's recommendation on the use of the active voice.

Will this replace the existing section 7?

Excellent.

Amendment agreed to.
Section 7 deleted.

I move amendment No. 19:

In page 7, before section 8, to insert the following new section:

"8.-If under the heading-

(a) in the Irish language ’Sampla’ or ’Samplaí’, or

(b) in the English language ’Example’ or ’Examples’,

an enactment includes at the end of a provision or in a schedule relating to that provision an example of the operation of the provision, then the example-

(i) is not to be read as exhaustive of the provision, and

(ii) may extend, but does not limit, the meaning of the provision.".

The proposed new section will facilitate the use of examples in legislation. Several common law jurisdictions use examples in the text of their legislation to facilitate clarity. In the absence of any expressed provisions relating to them, the exact status of examples will be open to question. Are they to be merely descriptive or can they be restrictive of the substantive provision? This section provides the necessary clarity.

Is it correct that we are going to give examples in our legislation of what this might mean and allow the courts to then interpret those examples? The examples to which I refer are hardly going to be open to amendment by the Oireachtas?

The examples would be voted on as part of the Bill.

Do we have any notion of where this might come into use?

Many other jurisdictions, including Victoria in Australia, use this practice. It is used quite a lot in revenue legislation in other jurisdictions.

I accept that. Would there be working examples of how a tax provision applies?

That would actually become statutory provision?

Yes. Those examples would then form part of the Bill that would be voted upon.

Will they be added at Report Stage?

No, they are part of the published Bill.

What is the merit of putting in working examples——

To enhance the clarity of the Bill and ease the task of interpretation.

Amendment agreed to.
SECTION 8.

I move amendment No. 20:

In page 7, line 34, to delete "shall" and substitute "does".

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
Question put: "That section 9 stand part of the Bill."

The Government did not come up with language in this section to make the position clear. It says "An Act is a public document and shall be judicially noticed". What does that mean?

It means that the Judiciary can interpret it.

I apologise, it means that the courts must take cognisance of it.

Is that automatic once the President signs the Bill into law?

If we pass it, the Judiciary must take note of it. We are informing the members of the Judiciary that they must do so.

Question put and agreed to.
SECTION 10.

I move amendment No. 21:

In page 8, subsection (2), line 9, to delete "construed" and substitute "read".

Amendment agreed to.

I move amendment No. 22:

In page 8, between lines 14 and 15, to insert the following subsection:

"(3) In citing-

(a) an Act by its short title, or

(b) any other enactment by its citation (if any),

a comma immediately before a reference to a year and a comma immediately after such a reference that is not required for the purpose of punctuation may be omitted.".

This allows for the deletion of a comma in citing any existing or future short title or other citation. This accords with both academic and judicial modern practice in citing Acts or statutory instruments. Most common law jurisdictions have adopted a similar approach.

This is replacing the idea where one would say "the Planning Act, 1999", for example. In future one would just say "the Planning Act 2000", and that will embrace 1999, 1998, 1997 and all the way back.

No, it is to replace where one would have had "Planning Act, 1999"——

I apologise, I am referring to the section.

Amendment agreed to.
Question proposed: "That section 10, as amended, stand part of the Bill."

I just want clarity on what exactly we are trying to achieve here. If one cites the "Planning Act", it will mean every Planning Act, as amended and consolidated, up to the year 2003. So we are doing away with the facility for distinguishing, for example, the provisions of the Planning Act 1999, which were different from previous Planning Acts. Is that the idea - to have a single reference to the Planning Acts, as if they all form a single and consolidated Bill? What are we trying to do here?

Every Act, as we know, has a long title and a short title. This section is designed to ensure that you can use either one.

I apologise for being late, but I had to attend another meeting. This Bill has had a long period of gestation and I believe it last came before the House in 2000. There ought to have been an opportunity afforded, particularly to bodies with an expert interest, to reconsider the Bill. I can see that the Minister of State is confused because this is a highly technical Bill and it is very difficult to get the core point of its potential meaning. It does have potentially very far-reaching consequences for the interpretation of Bills and the Minister of State's understandable difficulty in explaining the finer points of it is an absolute example of the difficulty of this Bill because it has been so long since it last appeared in the House. An opportunity should be given in particular to some of the expert bodies dealing in law to submit up to date comments on this.

What is the Deputy proposing?

I mentioned this point at the meeting this morning and I believe the Chairman indicated that he understood what I was saying. I do not think any of us are sure about the overall impact the Bill will have in relation to the interpretation of legislation. It purports to offer a wider reading of the words and preliminaries leading up to a Bill in order to form part of our understanding of legislation, whereas up to now we have, particularly with finance legislation, relied upon the actual wording of a Bill rather than focusing upon the intention. It is a very big step in legislative terms and it really has not been noticed much by anybody. I have not been in the House for the past five years so I did not have the benefit of hearing the previous discussions.

As I said at the outset, interest in this Bill is limited to practitioners in the field. Deputy Burton is right that it is a very technical Bill but it does aim to ease interpretation and clarify language, despite the debates we have been having here. However, the Deputy is not correct in saying that groups were not given an opportunity to make submissions. They were——

I am sorry, I did not say that. I said that it is three years since the Bill last came before the House. I know they had——

Yes, but subsequent to the publication of the Bill, the Law Reform Commission published its report. In the context of the consultation paper and report which it issued, discussions took place between the commission, the Attorney General's office and the office of the parliamentary counsel. Prior to the Law Reform Commission putting its report together, it held extensive consultations with the public, the Judiciary, the legal profession, etc. The commission was, therefore, the conduit for the consultations which took place subsequent to the publication of the Bill.

As I said at the beginning of this meeting, a number of the amendments being put forward by the Government - there are quite a number of them - are based upon the requests of the Law Reform Commission, arising out of its consultations. It is not true to say that the Bill has been left sitting there since 2000. That is not the case. There has been a great deal of development and consultation with the Law Reform Commission and it is from this process that the amendments arise.

The Minister of State does not look very convinced in explaining the position. It is quite difficult to explain this in ordinary English.

The meeting started at 2 p.m. and we are now I think on amendment No. 39.

I want to clarify the question. In practical terms, is this section saying that if the Planning Act 1963 - which is the parent Planning Act as I understand it - is quoted, that is to be interpreted in future as referring not just to the Planning Act 1963, but to every amendment that was subsequently made to that Act? Are we going to incorporate into one reference every Planning Act to have emerged ever since. Is that what we are saying, in simple terms?

My understanding is that what the Deputy is referring to is the short title of the particular Bill.

Which is what?

If the Deputy is saying it is the Planning Act 1963 or whatever——

——all that is being referred to is the Short Title of that Act.

How does one know which Act is involved given that in a lot of cases there are many Acts dealing with the same item which have year titles?

It is still referred to by the year.

The original year——

——of the parent Act.

In future that will incorporate all the subsequent amendments.

I do not understand it.

I suggest we go into private session to deal with this matter.

Is that agreed? Agreed.

The committee went into private session at2.51 p.m. and resumed in public session at2.53 p.m.

Question put and agreed to.
SECTION 11.

I move amendment No. 23:

In page 8, subsection (1), lines 15 and 16, to delete "shall be" and substitute "is".

Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12.

I move amendment No. 24:

In page 8, subsection (1), lines 22 and 23, to delete "shall come" and substitute "comes".

Amendment agreed to.

I move amendment No. 25:

In page 8, subsection (2), line 28, to delete "shall come" and substitute "comes".

Amendment agreed to.

I move amendment No. 26:

In page 8, subsection (3), line 31, to delete "shall come" and substitute "comes".

Amendment agreed to.

I move amendment No. 27:

In page 8, subsection (4), line 38, to delete "shall come" and substitute "comes".

Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.

I move amendment No. 28:

In page 8, line 42, to delete "shall".

Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.

I move amendment No. 29:

In page 9, line 11, to delete "shall".

Amendment agreed to.

I move amendment No. 30:

In page 9, paragraph (a), line 14, to delete “construed” and substitute “read”.

Amendment agreed to.

I move amendment No. 31:

In page 9, paragraph (a), line 15, to delete “construed” and substitute “read”.

Amendment agreed to.

I move amendment No. 32:

In page 9, paragraph (b)(i), lines 18 and 19, to delete “construed” and substitute “read”.

Amendment agreed to.

I move amendment No. 33:

In page 9, paragraph (b)(ii), lines 22 and 23, to delete “construed” and substitute “read”.

Amendment agreed to.

I move amendment No. 34:

In page 9, paragraph (c), line 24, to delete “construed” and substitute “read”.

Amendment agreed to.

I move amendment No. 35:

In page 9, paragraph (c), line 27, after “individual” to insert “, and the subsequent use of any pronoun in place of a further use of ’person’ shall be so read”.

This is a technical amendment. Its purpose is to put beyond doubt the consequences of using "person" followed by a gender based pronoun, such as he, him, she, her, to refer back to the person. Section 14(c), as initiated, contains a construction for the word “person” to include a body corporate and an unincorporated body of persons, as follows:

(c) Person. “Person” shall be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual.

A similar provision is to be found in section 11 of the Interpretation Act 1937, section 1 of the Interpretation Act 1923 and sections 2(1) and 19 of the Interpretation Act 1889. The amendment will ensure that where a reference to "person" could be read to include a body corporate, then a subsequent reference to "person" by using a gender based pronoun, such as he or she, will not prevent it applying to a body corporate.

What is the common sense interpretation of saying when one refers to a person one means a company as well? In most provisions of, say, the Companies Acts, one would list separate obligations of persons who might be directors of companies themselves. Are we presuming they always have the same meaning, or is it down to the individual Act to make a distinction between the obligations of companies as opposed to individuals? Is that the way it is being left here?

It is entirely up to the context of the legislation.

If the legislation does not specify otherwise, "person" means a company as well but if it does specify otherwise it——

Or if the context implies it.

What has been the practice up to now?

That is the way it is now. This is just to clarify that that is the practice at the moment.

Is there normally one use of the term "body corporate" rather than a "person" for a corporation, and is that not the practice at present? Is that not a corporate body as opposed to referring to a corporate body as a person? That is how I thought it would normally be referred to.

The provisions exist in previous Interpretation Acts for using the interpretation of "person" as applying to "body corporate" as well.

Is this a new style, where the term "person" in future will be used in relation to a body corporate? How does one distinguish between different categories of persons?

It is not a new style, it is clarifying and putting beyond doubt what is already allowed for in legislation - in previous Interpretation Acts.

Can the Minister of State give an example of where "person" is used at present in law for a "body corporate"? It is not normally used. Normally the term "body corporate" is used. I am not aware of any legislation where the term "person" is used for "body corporate" as well as for "person" within the same Act. There are grounds for much confusion if the two are used in the same Act.

I understand that legislation which states a "person" shall not import X, Y or Z can apply to a company. That is in legislation, so it means an individual person or the body corporate.

In company law, for instance, would the term "person" be used to imply body corporate as well as a person such as a director?

I presume the context of company law would specifically require that one is talking about body corporates but in, say, a criminal offence such as importing arms, drugs or whatever it would refer to a person and that would have a wider implication. I suspect that in the particular one the Deputy is asking about, it would be very specific in relation to companies. Apparently if we want to be more specific and refer to an individual, we use the word "individual". If we want to ensure that we are talking only about an individual person, we use the words "an individual shall not . . . " but the word "person" can apply either to either gender or to a body corporate.

Does the Act give a definition of an individual so that it is clear that the remedy exists?

No, it just has its ordinary meaning. "Individual" means an individual.

Amendment agreed to.

I move amendment No. 36:

In page 9, paragraph (d), line 29, to delete “construed” and substitute “read”.

Amendment agreed to.

I move amendment No. 37:

In page 9, paragraph (e), line 43, to delete “construed” and substitute “read”.

Amendment agreed to.

I move amendment No. 38:

In page 10, paragraph (g), line 1, to delete “No” and substitute “Subject to sections 6 and 7, no”.

This is a consequential amendment to the insertion of two of the proposed new sections 6 and 7.

Amendment agreed to.

I move amendment No. 39:

In page 10, paragraph (j), line 24, to delete “construed” and substitute “read”.

Amendment agreed to.
Question proposed: "That section 14, as amended, stand part of the Bill."

On reading subsection (g) it appears to directly contradict an amendment we made earlier when we said marginal notes could be interpreted. We are saying here that marginal notes cannot be interpreted. It states that no marginal note shall be taken to be part of the enactment or be construed or judicially noticed in relation to the construction or interpretation of the enactment. Is that not a direct contradiction of what we provided for earlier in amendment No. 14?

I just want to check that.

Does the Minister wish to proceed in private session?

That might help.

The select committee went into private session at 3.04 p.m. and resumed in public session at3.06 p.m.

Do we need to clarify that discussion for the Official Report?

No, it will not appear in the Official Report.

The question will appear.

If the Deputy wants to ask the question again and have the answer included in the Official Report, he can do so.

My understanding is that section 14(g) applies generally but if there is ambiguity in an Act, the courts may go behind the provisions of 14(g) and interpret the marginal notes and headings.

As amended by us now, yes.

Question put and agreed to.
SECTION 15.

I move amendment No. 40:

In page 10, lines 26 and 27, to delete "shall have" and substitute "has".

Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.

I move amendment No. 41:

In page 10, subsection (1), line 30, to delete "construed" and substitute "read".

Amendment agreed to.

I move amendment No. 42:

In page 10, subsection (2), line 34, to delete "a cognate word or expression shall" and substitute "other parts of speech and grammatical forms of the word or expression".

This amendment is proposed to improve clarity.

Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.

I move amendment No. 43:

In page 10, subsection (1), line 38, to delete "shall have" and substitute "has".

Amendment agreed to.

I move amendment No. 44:

In page 10, subsection (2), line 42, to delete "shall have" and substitute "has".

Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.

I move amendment No. 45:

In page 11, subsection (3), line 5, to delete "construed" and substitute "read".

Amendment agreed to.
Section 18, as amended, agreed to.
Section 19 agreed to.
SECTION 20.

I move amendment No. 46:

In page 11, line 18, to delete "shall have" and substitute "has".

Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.

I move amendment No. 47:

In page 11, line 22, to delete "Where" and substitute "Subject to any specific provision in an enactment relating to mode and time of service, where".

This amendment is for the purposes of clarity.

This amendment is not necessary because the point made is already covered in section 4(1) of the Bill which reads: "This Act applies to an enactment except in so far as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made".

Could there be an interference with the specific provision regarding service? Some statutes require service by registered post or deem service effected at a specific time rather than by way of the ordinary course of the post?

I do not understand the Deputy's question.

It is in relation to how service of statutes is deemed to be effected by way of registered post or at a specific time within a specific number of days rather than by way of the ordinary course of the post. For instance, in company law, service in many cases is registered on a time basis rather than within a specific number of days.

The Bill provides that this Act applies only in the absence of any such provision except in so far as the contrary intention appears in this Act. I refer the Deputy to section 4(1). Does that cover what she is seeking? I understand it is covered in that section.

I do not know. I have a feeling this will cause as many problems as it is supposed to solve, which will be a matter for people to work out down the road.

Amendment, by leave, withdrawn.

I move amendment No. 48:

In page 11, line 27, to delete "shall, unless the contrary is proved, be deemed" and substitute "is deemed, unless the contrary is proved".

Amendment agreed to.
Question proposed: "That section 21, as amended, stand part of the Bill."

Returning to the point raised by Deputy Burton, given that the serving of such a notice must also be accompanied by a reading of one's rights, I take it that it cannot be put in the post and that it must be done manually. This provision would come into play only in certain cases, such as in the case of a traffic offence, where a summons is posted and is deemed to have been served within so many days of having been posted.

That is a good example. In relation to the first example the Deputy gave, the Act expressly provides that a person must be read his or her rights. That must be allowed for. It is only in cases where such an express provision does not apply that this provision would apply, as in the case of a traffic offence to which the Deputy referred.

Question put and agreed to.
SECTION 22.

I move amendment No. 49:

In page 11, subsection (1), line 33, to delete "shall continue" and substitute "continues".

Amendment agreed to.

I move amendment No. 50:

In page 11, subsection (2), line 37, to delete "shall".

Amendment agreed to.

I move amendment No. 51:

In page 11, subsection (2)(b), lines 43 and 44, to delete “shall remain” and substitute “remains”.

Amendment agreed to.

I move amendment No. 52:

In page 12, subsection (2)(d), lines 5 and 6, to delete “enactment is repealed after the commencement of this Act,” and substitute “Act passed or a statutory instrument made after the commencement of this Act provides for the repeal of an enactment, then”.

This is a technical amendment to ensure that subsection (2)(d) is not interpreted to apply to an Act passed or an instrument made before the commencement of this Act, which would come into operation after the commencement of this proposed Act. For example, this means that if an Act passed in 2003 or earlier is brought into operation by commencement order made after the commencement of this proposed Act on 1 January 2004, paragraph (d) of this section would not apply to it. To provide otherwise would be to change the meaning of something that was neither intended by the Oireachtas when the earlier Act was passed nor contemplated by the drafter of the earlier Act.

I do not understand this section. It seems to suggest that if an Act is repealed, the statutory provisions under it will remain in force. In other words, it means that with the new Act, the Minister will not have to produce new statutory instruments. Effectively, this measure will allow the Minister, by default of not doing anything, to ensure that statutory instruments under a repealed Act will continue to have the force of the law. That seems a strange provision. If one were to go to the trouble of introducing a new Act and repealing an earlier one, one should be under an obligation to present the statutory instruments that one intends to be in force under the new Act and not rely on legislation that is defunct.

My understanding is that this provision would prevent the unintended revocation of instruments.

That is not what it appears to do. What the Minister is saying is contrary to what this provision appears to state.

If one wants to keep such instruments in force, one cannot——

One cannot unintentionally revoke them.

If one repeals an Act, one intentionally revokes everything under it. One cannot repeal an Act and keep in force all the statutory instruments provided under it. Such a measure would make it easy for Ministers to repeal legislation and maintain in force a heap of secondary legislation, which has not been scrutinised other than in the dim past, that relates to an Act that is no longer extant on the Statute Book.

Under section 19 of the 1937 Act, it is provided that if an enactment is passed and has not yet come into operation, the enactment it is to replace will remain in force until the new enactment comes into operation. That section of that Act also provides that where an Act of the Oireachtas repeals the whole or a portion of the previous statute and substitutes other provisions for the statute or portion of the statute so repealed, the statute or portion of the statute so repealed shall, unless the contrary is expressly provided in the repealing Act, continue in force until the said substituted provisions come into operation. This provision repeats what is in the 1937 Act.

It goes a little further than that. It provides that unless the Minister brings in a new statutory instrument under the new Act the old statutory instruments will continue to prevail. The new Act may be in force, but if the Minister does not bother to introduce new statutory instruments under it, the old statutory instruments will continue to have the force of the law. I do not know much about legal matters, but it seems dubious to rely on repealed legislation to generate statutory instruments.

The Deputy's concern is not about statutory instruments being unintentionally revoked, it relates to those that remain in force after the Act has been repealed.

Yes. Their source is in an Act that is defunct.

It is covered in other legislation that they fall. I request that we go into private session to deal with this.

The select committee went into private session at 3.18 p.m. and resumed in public session at3.22 p.m.

Amendment agreed to.

I move amendment No. 53:

In page 12, subsection (2)(d), line 8, to delete “shall remain” and substitute “remains”.

Amendment agreed to.

I move amendment No. 54:

In page 12, subsection (2), lines 12 to 17, to delete paragraph (e) and substitute the following:

"(e) to the extent that the provisions of the new enactment appear to have expressed the same idea in a different form of words are in substance the same of those of the former enactment, the ideas in the new enactment shall not be taken to be different merely because a different form of words is used;”.

Paragraph (e) of section 22(2) proposes to facilitate the modernisation of language used in enactments when they are re-enacted and, accordingly, improve their clarity. Where a provision is repealed and re-enacted, a change of words that merely modernises the language will not be taken as changing the meaning of the provision. To that extent, it will change an old rule of statutory interpretation that can be used by the courts, which provides that where the Oireachtas changes the language of a statute, it intended the statute to have a different meaning from what it previously had.

Amendment agreed to.

I move amendment No. 55:

In page 12, subsection (2)(f), line 20, to delete “construed” and substitute “read”.

Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.

I move amendment No. 56:

In page 12, subsection (1), line 27, to delete "shall" and substitute "does".

Amendment agreed to.
Question proposed: "That section 23, as amended, stand part of the Bill."

Can the Minister of State explain section 23(1)(c) which states that where an enactment is repealed, the repeal shall not “affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment”? Is it not the purpose of a repeal to affect rights, privileges and obligations? If one changes a tax provision that gave people certain privileges, one is changing those privileges. Is that not the purpose of repealing legislation? If we close a tax loophole, we are removing a privilege.

If one took advantage of it at the time, it was still legitimate. Equally, if one was found guilty of an offence which subsequently ceased to be an offence, one was still guilty of the offence committed at the time.

Why not phrase it "affect any right up to the date of the repeal"?

Surely it will be understood that one is liable as long as the Act is in operation.

It does not affect one's rights, duties, obligations or penalties up to the time of the repeal.

For the time the legisation was in force, the person received the benefit or was liable for the consequences.

Question put and agreed to.
NEW SECTION.

I move amendment No. 57:

In page 12, before the Schedule, to insert the following new section:

"24.-(1) Whenever any act or portion of an act of the European Communities or the European Union is repealed and re-enacted, with or without modification, by an act of the European Communities or the European Union, then references in any enactment to the act or portion of an act so repealed and re-enacted shall be read as references to the portion of such act containing such re-enactment.

(2)Subsection (1) has effect irrespective of whether the repeal and re-enactment concerned took place before, on or after the commencement of this Act.”.

Acts of the European Communities and the European Union, normally directives and regulations but also the treaties of the European Communities, are often referred to in our Acts and statutory instruments. From time to time these regulations and directives are revoked and made again in a consolidated form. The question arises as to what effect the revocation has on references in our Acts and statutory instruments to these European references, where their substance has been re-enacted. The proposed new section ensures such a reference will be read as a reference to the re-enacted version. This mirrors what was provided in section 20 of the Interpretation Act, 1937 for Acts and statutory instruments. Section 20 of 1937 Act is, in revised wording, given effect in section 22(2) of the Bill.

Amendment agreed to.
SCHEDULE.

Amendments Nos. 59, 60 and 63 are related to amendment No. 58. Amendment No. 61 is an alternative to amendment No. 60. Amendments Nos. 58 to 61, inclusive, and No. 63 may be discussed together. Is that agreed? Agreed.

I move amendment No. 58:

In page 13, to delete lines 29 to 34.

The purpose of these amendments is to delete the references in the Schedule to the Land Clauses Acts, the Valuation Acts, the Companies Acts and the Social Welfare Acts which should properly only be referred to by their titles. Their titles are given after the generic description of the Land Clauses Acts and the Companies Acts but, properly speaking, there should only be reference to their titles, otherwise there is much potential uncertainty as to what they mean.

All Interpretation Acts since 1889 have defined what is meant by Land Clauses Acts. This Bill relates to the interpretation of all Acts and it is considered appropriate to maintain its presence as the Acts are still in force. Its presence does not preclude them being cited separately in any future Act.

The objection is to the use of the generic term, the Land Clauses Acts, rather than to naming the specific Acts covered by the Schedule. They are mentioned following the reference to the Land Clauses Acts. This creates uncertainty. As we either are or are not referring to certain Acts, why not just state the Acts to which we wish to refer?

By their Short or Long title?

As named in the Schedule.

I can look at it for Report Stage.

In page 15, line 19, there is a reference to the Social Welfare Acts. It would be better just to refer to the social welfare legislation to which it relates. The same applies to the Companies Acts and the Valuation Acts. The existing phrasing could create uncertainty. In the case of the Valuation Acts the phrase used is "the Acts for the time being in force relating to the valuation of rateable property". The Acts should be named.

I intended to agree to amendment No. 59, which proposes the deletion of the reference to the Valuation Acts. We will look at it again to see if it can be clarified. Clarity is what the Bill seeks to provide. We will look at the Land Clauses Acts, the Valuation Acts, the Social Welfare Acts and the Companies Acts.

A number of such generic terms are used and I am seeking to replace them with specific reference to the Acts.

Is the amendment being pressed?

The Minister of State is accepting it.

I will come back to the issue on Report Stage. We will remove the reference to the Valuation Acts——

——and insert the Acts to which the Minister of State is referring.

We will take them out altogether. With regard to amendment No. 59——

We are still dealing with amendment No. 58.

We will look at the phrase "Land Clauses Acts" and be more specific or remove it completely.

It is important to keep the full discretion of the Acts. However, the generic collective term applied to a number of them is not specific and could cause confusion.

The Deputy would like them listed in the Schedule.

That will be long and awkward.

I am sure a senior counsel will be paid a few thousand euro a day to sort it out.

Amendment No. 59 seeks to delete the reference to the Valuation Acts.

I do not have a problem with that. There is a new code in relation to the Valuation Acts. The Acts relating to the valuation for the years 1838 to 1997 were repealed by the Valuation Act 2001, which was enacted after the presentation of this Bill on 22 August 2000. Unlike the Social Welfare Acts and Companies Acts, there is not a frequent reference to the Valuation Acts.

Amendment No. 60 is a technical amendment to take account of a new collective citation provided by the Company Law Enforcement Act 2001. As regards the Companies Acts, it refers to a particular collection of Acts which are regularly amended. That is why the collective citation was included.

It is better to list the Acts to which we wish to refer.

As regards the Social Welfare Acts——

The same point can be made about the Social Welfare Acts.

The Social Welfare (Consolidation) Act 1993 provides the citation for the Social Welfare Acts. The Social Welfare (Consolidation) Act refers to the composite generic title of the Social Welfare Acts for the purpose of those Acts and any other Act. I wonder if it is necessary to do the same in that regard. It is also in the Companies Acts. Would the Deputy be happy if we agreed to look at the Lands Clauses Act on the basis that it has not been consolidated to the same degree as the Social Welfare Acts, which already have a separate citation?

It would be better to list the Companies Acts to which we wish to refer because that would create more certainty.

Would that preclude other Acts in the future? If we specifically list Acts in the Schedule and the other Social Welfare Acts, Companies Acts, etc., are enacted, will they be excluded from this legislation? By using generic terms we are referring to legislation which has been passed and will be passed in the future and which must be interpreted.

That is not my understanding, but the Minister of State is sitting beside lawyers.

There would be a question over whether we would rule out legislation in the future by being specific now.

I do not understand why that would be the case.

I will take advice on it and come back on Report Stage. However, if we are prescriptive now, we could rule out legislation for interpretation purposes in the future.

Amendment, by leave, withdrawn.

I move amendment No. 59:

In page 14, to delete lines 31 and 32.

I accept the amendment.

Amendment agreed to.
Amendment No. 60 not moved.

I move amendment No. 61:

In page 15, line 2, to delete "1999," and substitute "2001".

Amendment agreed to.

I move amendment No. 62:

In page 15, line 3, to delete "construed" and substitute "read".

Amendment agreed to.
Amendment No. 63 not moved.

I move amendment No. 64:

In page 15, line 20, to delete "construed" and substitute "read".

Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.