I move amendment No. 1:
In page 6, between lines 5 and 6, to insert the following:
"(e) the Interpretation (Amendment) Act 1997.”.
The Bill, as drafted, is defective because the Interpretation (Amendment) Act has not been included.
Interpretation Bill 2000: Report and Final Stages.
I do not propose to accept the amendment. The Bill deals with the interpretation of Acts and statutory instruments. The Act referred to by the Deputy involves an interpretation of common law and that is the reason it does not belong in this section.
That is fair enough but the 1993 legislation is still entitled the Interpretation (Amendment) Act while previous legislation is entitled the Interpretation Act 1937, the Interpretation Act 1923 and the Interpretation Act 1889. It is about time one of those was replaced. Will the Minister of State elaborate on the difference between the Principal Act and the amended Act? Deputy Burton's amendment could be valid and correct. I recall contributing to the debate on the Interpretation (Amendment) Act 1993 and similar issues were raised.
Deputy Durkan will recall that that legislation referred to gender proofing and that is why is it is relevant to this debate. The Act referred to by Deputy Burton related to interpreting common law as a consequence of its abolition by statute. A particular case gave rise to interpretation of common law but the Long Title of this legislation refers to an Act respecting the interpretation and application of Acts and statutory instruments. Common law is not being interpreted.
Amendment, by leave, withdrawn.
An Leas-Cheann Comhairle:
Amendment No. 3 is an alternative to amendment No. 2 while amendments Nos. 6 and 7 are related and are mutually alternative. All may be taken together by agreement.
I move amendment No. 2:
In page 6, line 33, after "Act" to insert ", other than a provision that relates to the imposition of a penal or other sanction".
As I stated on Committee Stage, section 5 only applies in restrictive circumstances and only where the plain intention of the Act, as a whole, is ascertainable. The section reflects the considerations of the Law Reform Commission in its report, Statutory Drafting and Interpretation: Plain Language and the Law. Given the concerns expressed on Committee Stage by Deputy Burton, I undertook to examine the matter and refer back on Report Stage. As a result, I am satisfied the application of the section, which in its present form would be extremely limited, should be further restricted to ensure it will not be used in the context of a penal or other sanction. However, if we were to go further and impose the restrictions outlined in Deputy Burton's amendment, the section would be rendered inapplicable in virtually every circumstance. My amendment goes some way towards addressing the issues raised on Committee Stage.
I thank the Minister for acknowledging the Labour Party's position that the Bill was defective because it did not refer to provisions that would impose criminal or civil obligations on individuals. I do not know whether "penal or other sanction" is better wording because that could cover both criminal and civil scenarios. Will the Minister of State elaborate? I am not a lawyer and I am prepared to take her advice in this regard.
The Minister of State's amendment is less specific than Deputy Burton's, which states "other than provisions which impose or would, if this section were applied, impose a criminal or civil obligations on individuals". The Minister of State's amendment states "other than a provision that relates to the imposition of a penal or other sanction". The other sanction could be serious or minor and I am not certain whether Deputy Burton's amendment is better. It would be more precise in terms of application and would be in less danger of being abused in the event of an interpretation. Perhaps the Minister of State will elucidate on this issue. I would be happier with Deputy Burton's amendment.
My amendment's reference to "or other sanction" could include other penalties such as Revenue penalties, etc., whereas Deputy Burton's is much wider as it refers to civil obligations.
I accept the advice of the Parliamentary Counsel but our wording is better. Only time will tell which is better. I will withdraw my amendment but I thank the Minister of State for accepting the Opposition's point that clearer language was needed in the first place.
Amendment agreed to.
Amendment No. 3 not moved.
An Leas-Cheann Comhairle:
Amendments Nos. 5, 8, and 9 are related to amendment No. 4 and all may be taken together by agreement.
I move amendment No. 4:
In page 6, line 34, to delete "or ambiguous".
The Bill contains the wording "is obscure or ambiguous". Our advice is that it should only read "is obscure" because it is not appropriate to confess that legislation is being introduced which is ambiguous. It is not advisable to leave the term "ambiguous" in the legislation.
The use of the word "ambiguous" is considered to be an integral feature of the section, as it delimits the circumstances of its application. The word was used by the Law Reform Commission, which gave it significant consideration. The Deputy also referred to the words "plain intention". The primary aim in employing the test commencing with those words "or would fail to reflect the plain intention of" is to ensure that in cases of uncertainty the intention of the Parliament would be adhered to while the phrase "in respect of a statute" refers a concept with which the Judiciary is familiar. "Ambiguous" is an accepted word for delimiting the circumstances and "plain intention" is a commonly used and understood phrase by the Judiciary. This is why we feel we should retain them.
This is unsatisfactory regarding certain statutes, particularly those concerning tax law. It is what is said in the Act that is important. In different areas of law, judges may react depending on the matter under consideration. Section 5(1)(b) states, “that on a literal interpretation would be absurd or would fail to reflect the plain intention of – [the Oireachtas].” This is inadequate because it could be dicey to ask judges to interpret what was the plain intention of the Oireachtas. Allowing for a liberal interpretation would make for stronger legislation. It may be more onerous on the parliamentary counsel who must come up with better language that will stand up to legal tests. We have just listened to the redoubtable and esteemed former barrister and Attorney General, the Minister for Justice, Equality and Law Reform, lay about him regarding such diverse subjects as the Taoiseach, Ceaucescu, whether the Taoiseach was a communist and so on.
In years to come, how will a judge interpret the plain meaning of all of that if, for instance, he or she is to be guided back to what was the plain intention of the Oireachtas? Half an hour ago, the Minister for Justice, Equality and Law Reform was waving his arms and saying regarding his point of view that he had the plain people of Ireland on his side. In the future, will some judge try to interpret the plain people of Ireland regarding the Bill before us? It is a slightly dangerous concept and I would like to hear why the Minister of State insists it should be included in the Act.
I agree with Deputy Burton in this regard. I spoke about the matter previously in the House. I cannot understand why we must be vague and leave the courts or judges to interpret what we were thinking. I find it difficult to understand how they could possibly have any way of finding out what we were thinking when we passed legislation. We should be precise in the way we word legislation, in which case there can be no doubt about it, or we can be vague, which will leave a labyrinth of areas where our good friends in the legal profession can course at will to try to arrive at what they thought we in the Oireachtas were thinking when we phrased a Bill in a particular fashion.
It is not the first time this argument has arisen; it has arisen on many occasions during my time in the House. I would like to underpin what Deputy Burton said by saying that perhaps the time has come for us to be more precise and less ambiguous, ambivalent, vague and nebulous in the way we do what we do. We should make quite clear what we are saying to all and sundry, and to the plain people of Ireland. Whenever I hear references to them, I always think about a former leader of the party opposite whom it was said used to look into his heart to find out what the people of Ireland were thinking. It takes a certain amount of expertise to come up with that one. Many politicians have tried it over the years and failed. I would like to hear further from the Minister of State on the benefits of the proposal versus the amendment.
We posed the question on Committee Stage as to what was the purpose of the legislation in the first instance. In fact, it is to close down ambiguity because this is the Interpretation Bill. What we are trying to do is to ensure there is a more precise legislative and legal process. Why is there such ambiguity that legislation such as this is necessary? I am on record as welcoming the Bill, and I again want to record my support. One of the critical deficiencies on which my colleagues have not yet reflected, but we all did at the appropriate time, is that, by and large, the only legal assistance in terms of the processing of legislation is that which is available to Government and to Ministers through the Attorney General and his team. While Deputy Burton referred to legal advisers to the Labour Party, I have no such legal advisers available to me in terms of my contribution to this debate. Deputy Durkan is in the same position.
We made the point then, and I ask the Minister of State again, whether she has taken on board our appeal that, first, access to the advice of the Attorney General be made available to all Deputies and, second, to the proposition that we would have legal advisors available to all Members of the House in order that we will have the opportunity to properly inform ourselves in terms of our role as legislators? Currently that is not provided. Interpretation Bills and ambiguity will always be a part of the reality of legislation and the judicial process until such time as we have a more precise passage of legislation, scrutiny and discussion within the Houses of the Oireachtas. It is wholly deficient at the moment and I re-echo my appeal on Committee Stage to the Minister of State to take on board that request.
Obviously it should be the aim of all of us as legislators to ensure we pass legislation which is not ambiguous and is clear. The time we give to all Stages of legislation proves that is our intention.
As regards Deputy Ó Caoláin's point about legal support and legal representation, all parties have access to wonderful junior and senior counsel who voluntarily give of their time to Opposition parties to support the drafting of amendments and legislation. I am sure the Deputy will find someone in the Law Library who will be happy to support the work. Equally, political parties are grant aided each year and the money can be used for research purposes or for legal assistance. Perhaps the political parties will decide to put some of the money towards new law graduates who will be happy to help out. Perhaps we can consider the needs of all Deputies in progressing legislation through the House in the context of the Houses of the Oireachtas Commission Bill, which was passed recently, and the commission which will be in place next year.
To get back to the point of the plain intention, the principle of this has been established in the courts in Mulcahy v. the Minister for the Marine in 1994. It is to ensure that where there is uncertainty the intention of Parliament is adhered to. We might pass a Bill which is clear as daylight, and that might still be the case next year. In 50 or 100 years' time, when that Act is still on the Statute Book, the clarity which we think exists may not apply. Deputies know we have a lot of legislation dating back to the Victorian age and knowing the clear intentions of that time is not so easy. That is why it is important to build this into the legislation.
The phrase "clear intention" has been used by the court. Mrs. Justice Denham in Howard and others v. the Commissioners of Public Works said the correct conclusion to be drawn is that the plain language of an Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects and that the court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left in the Legislature – that is exactly what we would expect of the courts. The judgment goes on to state that if a plain intention is expressed by the words of a statute then the court should not speculate but rather construe the Act as enacted.
The principle is that the courts should interpret the legislation as we pass it and see what was the plain intention of the Bill. In light of what Deputy Burton said about exchanges on the previous legislation, I am not sure her next amendment is appropriate, given that it seeks the position of the Minister to be written into this. As "plain intention" is something we need to retain to ensure there is no ambiguity and that legislation can stand the test of time, it is important to keep it in the Bill.
Will the Minister of State provide me with the names of those in the Law Library who would offer their services? They might use the opportunity this evening to appear in the spirit of volunteerism in the country – some of them might like to come forward. I would welcome their services.
The Minister of State did not address the first point regarding the Attorney General's advice, which may be an aside but is central to what we are addressing. The Government has sole and solitary access to that advice. My point was that that advice should be made available to all parties represented here; that is not something that should challenge the Government too much. Rather than pointing Opposition parties towards goodwill or the private sector approach, would it not be better for us to have in-house legal advice available to us all as Members? That is a major deficiency here and it is an inescapable point.
If the Labour Party amendments were accepted, section 5 would state that in construing a provision that is obscure and that on a literal interpretation would be absurd, the literal interpretation may be departed from and preference given to an interpretation based on the plain intention of the Oireachtas or Parliament concerned, as the case may be.
The addition the Minister of State has included is almost a form of coat-trailing where the courts are being invited to go behind what happened in the debate. I am reminded particularly of the situation regarding the disability legislation, when Members may recall the then President, Mary Robinson, referring a Bill to the Supreme Court. The consequence of that interpretation by the judges was that they struck down sections of the Bill, even though during the debates on the legislation the Oireachtas had never intended striking down disability provisions on the grounds that they would impose burdens of cost on owners of property or businesses.
The Labour Party proposal would create a much more logical structure, which would also be consistent with amendment No. 10, although we will probably not reach it. That amendment would include a provision having regard to any assurance given by the Minister sponsoring the enactment or the maker of the instrument in the course of or in connection with parliamentary proceedings prior to its enactment or making. For example, on the legislation governing the dual mandate, the Minister for the Environment, Heritage and Local Government undertook to provide regulations regarding elected representatives maintaining contact and a flow of information from council managers and staff. Members accepted that but we still have not seen those regulations; I understand the Minister intends to produce them shortly.
Ministers often give undertakings which are not reflected in the statutes as finally printed but which are politically important. In this case, they are particularly important for Government backbenchers regarding the dual mandate. If the Minister does not produce those regulations, not only will his life be made miserable but the Minister of State, Deputy Hanafin, will also have a miserable time in getting backbenchers to resign from councils. Commitments given by Ministers are important. They are often very unambiguous and are stated on Committee Stage in order that political deals may be struck with backbenchers or more widely.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 7, line 8, after "instrument" to insert ", other than a provision that relates to the imposition of a penal or other sanction".
Amendment agreed to.
Amendments Nos. 7 to 9, inclusive, not moved.
I move amendment No. 10:
In page 7, line 23 after "permit" to insert "and may in addition have regard to any assurance given by the Minister sponsoring the enactment or the maker of the instrument in the course of or in connection with parliamentary proceedings prior to its enactment or making".
Time is limited and I want to hear the Minister of State's reply. This is a good point and worthy of our support. We are at the conclusion of the debate and the Minister of State should accept this.
I cannot accept the amendment as it would involve widening the law beyond this text and any piece of legislation should be interpreted for the text it is. That goes back to what we were saying earlier about ensuring that the text we draft is one that is accurate and not ambiguous or obscure. To allow for a situation where anything a Minister might say in introducing legislation would be statutorily allowed to be used or interpreted would not be a good precedent. The legislation should stand on its own without having regard to the actual debate. Through case law, the courts develop principles by which other aids to interpretation can be used and one hears of Dáil debates being used and so on but I am not satisfied we should allow for that in legislation rather than letting the case law develop as it progresses.
An Leas-Cheann Comhairle:
As it is now 11 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendment set down by the Taoiseach and not disposed of is hereby made to the Bill, that Report Stage is hereby completed and the Bill is hereby passed."
I wish to thank the officials in the Department of the Taoiseach for their work on this Bill. I also thank Deputies, particularly for the consideration given to the Bill on Committee Stage, which has been of benefit to it.
Question put and agreed to.