Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 19 May 2004

Vol. 176 No. 15

Interpretation Bill 2000: Second Stage.

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

I am pleased to introduce the Interpretation Bill 2000 in the Seanad and to outline its purpose and content. Most Acts and statutory instruments contain definition or interpretation provisions. They are there to make the legislation concerned more coherent by reducing the need for repetition. They also allow legislation to be shorter and improve clarity. Some interpretation matters arise time and again in legislation.

Due to their general application, these have from time to time been gathered together and included in an interpretation Act, which was then applied to all subsequent Acts and statutory instruments. In addition, general rules for interpretation of legislation have been developed by the courts over the years and continue to be developed. They form the part of the law that is called judge-made law or the common law. These general rules have often been given statutory effect, sometimes with improved clarity, in interpretation Acts.

Most jurisdictions have some form of general interpretation enactment that applies to its written laws. These general interpretation enactments provide a means of setting out rules that govern how the provisions of written law are to be construed and include defined terms that are commonly used.

The first general interpretation Act was the Interpretation Act 1889. Its purpose was twofold: to simplify the reading of statute law by deleting from each statute and statutory instrument standard definitions and phrases and to improve the clarity of legislation by giving statutory effect to certain standard principles of statutory interpretation developed by the courts. These remain the key purposes of any interpretation Act. Apart from minor amending Acts, major interpretation Acts were enacted in 1889, 1923 and 1937.

The Bill proposes to repeal and replace all the former interpretation Acts except the Interpretation (Amendment) Act 1997. The 1997 Act deals with the enactment of statutes that abolish common law offences and is being left as a standalone piece of legislation as it is not relevant to the interpretation of most Acts.

The last major interpretation Act was enacted in 1937. The fact that it has stood the test of time is indicative of its success. However, a new interpretation Act is necessary to deal with changing circumstances, including constitutional and statutory developments since 1937. It is also necessary for four other reasons: to provide new definitions to terms frequently used nowadays in statutes and statutory instruments; to consolidate provisions that have been added by interpretation amendment Acts since 1937; to modernise the language used in the interpretation Act; and to take account of developments in statutory interpretation by the courts.

The Bill further simplifies the matter for those who have recourse to the interpretation Act. The practice of having to examine one of three sets of interpretation Acts, depending on the date of passing of the Act to be interpreted, will not be necessary in most cases. Due to the proposed repeal of all previous interpretation Acts relating to statute law, the new definitions, which are set out in the second part of the Schedule to the Bill, will apply only to Acts and statutory instruments made after the legislation is enacted and comes into operation. Spent and obsolete provisions in the earlier interpretation Acts, including definitions of matters that no longer frequently occur in legislation, are not being re-enacted in the Bill.

However, the Bill also contains safeguard provisions to preserve the effect of obsolete definitions that have been omitted from the new Act. The safeguard provisions also prevent the application of a reworded definition if it causes legal anomalies or absurdities when being applied to an existing Act or statutory instrument.

Apart from the standard Preliminary and General Part, Part 1, the Bill is divided into five other parts. Part 2 is new and includes miscellaneous rules to assist in interpreting enactments. Part 3, dealing with citation, operation and commencement of enactments, reflects the current law but clarifies a number of matters in that law. Part 4 and the Schedule deal with the meaning and construction of words and expressions. Again it reflects the current law but incorporates a large number of new matters and omits obsolete definitions. Part 5, powers and duties, and Part 6, amendment of enactments, in general reflect the existing law but in more modern language.

In July 2000, shortly before this Bill was published, the Law Reform Commission published its consultation paper, Statutory Drafting and Interpretation: Plain Language and the Law. In December 2000, the Law Reform Commission published its report on that matter. In the context of both the consultation paper and the report, discussions took place between the commission and the Attorney General's office, including the Office of the Parliamentary Counsel to the Government. As was indicated in the Dáil on 26 June 2001 by the then Government Chief Whip, "aspects of the report will be reflected at Committee Stage of the Interpretation Bill". Accordingly, a series of amendments was moved on Committee and Report Stages of the Bill in the Dáil to take account of some of the issues arising from the Law Reform Commission's report as well as a number of other issues.

I wish to indicate to the House that I propose moving a number of further technical amendments to the Bill, the most obvious of which is that a new commencement provision will be provided for in section 1 of the Bill. It is proposed that this will be six months after the passing of the Act.

An interpretation Act is an invaluable tool for those who draft, use or interpret our laws. It helps by eliminating the need for standard interpretation provisions and definitions to be set out extensively in every new Act and statutory instrument which effectively would clutter up the Statute Book. The absence of general principles of interpretation from each individual Act and statutory instrument allows our laws to be read more easily. It also ensures a coherence of interpretation across the Statute Book that would not otherwise be there. Those who draft, regularly read or interpret our laws can do so with more precision and confidence when the basic rules and definitions of interpretation are of general application, are clearly set out in an interpretation Act and are well known and understood. In summary, although the Bill is of a technical nature and of interest primarily to the legal community, it is very important. It will effect a much-needed modernisation and simplification of the language of the rules and definitions found in the former Interpretation Acts and add new rules and definitions. This will have a positive knock-on effect on the drafting and interpretation of our legislation. I commend the Bill to the House.

I welcome the Minister of State and thank him for setting out the reasoning behind this proposal which has been passed by the Dáil where it was thoroughly examined. As the Minister of State said, while this may not be the sexiest Bill to come before the House in a generation or so, it is important. Not only is it a tool for practitioners of law, its applications in court have a direct effect on everyone's civil rights and on the interpretations of decisions and decisions given by the courts. In his introductory remarks the Minister of State referred to the sections as set out in Part 4. It is interesting in looking at this to note the definitions given in section 18(h) to “periods of time” and in section 18(i) to “time”. Those issues had a serious impact on the way in which the courts dealt with the question of when warrants can be served and their effects, in connection with another matter in the past month. This is important and we should go through it rigorously on Committee Stage. My party supports this Bill and will go through it as comprehensively as possible.

There is a real problem in the Oireachtas in terms of the processing of legislation by Members on all sides. Our committee system is not working as it should. It is Executive driven because the Government of the day always has a majority. Only the lead spokespersons for the Opposition parties attend the committee meetings. We should engage ordinary Members on all sides in much greater scrutiny of legislation; that applies to all Bills that come before the House. We have far too many ministerial orders, statutory instruments and secondary legislative mechanisms within our legal system. Too often neither House scrutinises ministerial decisions, which is a shame. If one compares the number of Bills produced 50 years ago with the number produced today, it is probably only a fraction.

One has only to go back 15 years.

Yes, even 15 years ago, in the Minister of State's experience. Whenever a Minister announces an initiative at a press conference a new Bill seems to be part of the package. That is not a good thing. We should minimise the amount of legislation that comes before these Houses and spend more time on it to ensure it can be implemented and is up to speed.

I pay tribute to the staff in the Office of the Parliamentary Counsel who have, under great pressure, done an excellent job for all Governments over many years. I suspect the office suffers a lack of resources and we must support it and ensure the best talent in the country is there to help those of us who must make decisions about the law and implement them. I congratulate them on their work on this and other issues.

A White Paper on regulation, Regulating Better, some of whose proposals should be reflected in this Bill, was published recently. For example, the Minister of State might give active consideration to the need for consistency in law. A small issue that crops up frequently on this side concerns commencement orders, which usually refer to sections 2 or 3 of the Bill. What is the official position in terms of a commencement order? For example, in one Bill one finds the phrase "This Act comes into operation" but in another the phrase is "This Act shall come into operation" on such and such a day. Which is correct? We must have consistency in all the Bills that come before this and the other House. The official position that comes from the Law Reform Commission and others is that the active voice is the correct interpretation. If so, why do other formulations continue to appear in other Bills? We need to proof these.

We also need clarification on section 6 of this Bill which I do not understand:

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.

Does this give significant power to judges to reinterpret Acts that have passed through both Houses of the Oireachtas? It is a dangerous precedent to allow people to make that distinction and, in effect, create a new body of law in their courts. I am sure my elementary understanding will be greatly helped by the Minister and his staff as we continue through the Bill.

Electronic versions of the Acts are also a serious problem. In a court of law where reference is made to an Act of the Oireachtas, one must present the hard copy of the Act in the courtroom. Am I right in saying that electronic versions are not regarded as the complete version of an Act in our court system? If, in this technological age, we are trying to encourage e-government we should regard all Acts in electronic format in the same way as the hard copy. This would help the operation of the courts and is the case already at tribunals of inquiry and at committees of these Houses. It was particularly helpful during the DIRT Inquiry because when our colleagues referred to various Acts or other important documents, these would come up on a screen. Does the electronic version have the same standing in a courtroom as the hard copy? Why are we not providing for this in the context of section 7 where reference is made to the authentic version?

With regard to section 10, I am informed that the OECD and the recent White Paper, Regulating Better, have advocated that a review mechanism should be included in all primary legislation. There are two ways of doing this; either we review the legislation and make a commitment by way of a section or include a sunset provision to the effect that the Act will no longer apply after 50 years in operation. This would be a good thing, because, as legislators, we often respond to new developments in society that only have an impact for five, ten or 20 years. Outdated legislation with no regard to modern society still continues to be enforced. Has the Government given consideration to this recommendation, which I understand has come from the White Paper on regulation and the OECD, in regard to putting a review mechanism into primary legislation that comes before the Oireachtas? That would be a useful thing because it would remind us all of the impact of proposed legislation over a specified period of time after which, if necessary, it could be reintroduced. Such a provision already exists in regard to the Offences Against the State Act. It includes a time provision to the effect that each House of the Oireachtas must renew support for the legislation for it to remain in effect. It is done in the case of emergency powers being put in place, but it would also be a worthwhile provision in all legislation.

Section 11 provides for the use of examples. This is good because legislation would be greatly helped by concrete examples of how it should be used. Not only would it make it easier for everyone to understand, but it would also give legislators a greater comprehension of Bills coming before them. The Parliamentary Counsel's office should be ruthless in ensuring examples are provided and that Departments produce legislation that show concrete examples that would be of help to the lay person.

Legislation needs to be set out in the plainest language possible so that every citizen can understand what the Houses of the Oireachtas are implementing in each case. I am aware that equality proofing is carried out on Bills in the Parliamentary Counsel's office. There has been a proposal that Bills should be poverty-proofed. We also need to introduce plain language proofing, so as to allow everyone to comprehend legislation passed by the Houses of the Oireachtas.

We support the Bill and will work with the Minister on it on Committee Stage. The detail of the Bill is of the utmost importance in terms of interpretation by justices of the Bench. We should spend adequate time on it, as was the case in the other House. I am sure the experienced Members of this House, who include former Ministers and people of vast experience of parliamentary encounters, would greatly help the Bill by way of scrutiny on Committee Stage.

I welcome the Minister of State, Deputy Michael Ahern. I wish to pick up on what the leader of the Opposition, Senator Brian Hayes, said. I noticed there was no mad rush of enthusiasm for the Bill which was drawn up in 2000. I think it was first dealt with in 2001 and I understand why it appears to have been going around the Houses for a while.

Although I guided 18 Bills through the Houses of the Oireachtas in the five years I spent in the Department of Public Enterprise, I do not understand the Interpretation Bill. I cannot understand what it is interpreting or what it is setting out to do. The Minister did his best in his commendably short speech — there is no point going on about it. I do not mean to insult or castigate those who put it together or the officials present, but it is most obscure legislation.

I noted at the end of the Minister of State's speech there was a reference to the fact that a new explanatory memorandum would be produced six months after the enactment of the Bill. The main purpose of the Interpretation Bill is to give greater clarity of expression to former Interpretation Acts. It includes references to 19th century legislation but excludes the 1997 Act, which is a standalone Act. Perhaps I am not taking the correct meaning from it, but I cannot quite understand what it is all about. I downloaded the contribution of the Minister of State, Deputy Hanafin, on the Bill in the Dáil. It was lengthier than that of the Minister of State, Deputy Michael Ahern, but that did not make it better or worse. That is not the point; it was very worthy. Apart from the Minister of State's speech there was a contribution from party spokespersons. I think everyone else ran out. I could not understand anything that was said about the Bill and I do not think anybody else could either. I will just have to accept that its purpose is to bring about clarity in better and plainer English and provide for a greater level of understanding to what we often term, the ordinary person in the street. If one went to Grafton Street or O'Connell Street and explained to people that the Interpretation Bill would make legislation plainer and asked a person to spend an hour reading it, I would think he or she would give up after 20 minutes.

I wish to refer to the business of law making and the role of the Parliamentary Counsel's office. I am not speaking in ignorance, as I have guided many Bills through the Oireachtas over the years. I often thought the purpose of legislation was to make the understanding of it as difficult as possible so that legislators in both Houses of the Oireachtas would not have a chance of putting their imprint on the Bill.

Legislation is about people. I do not refer to this Bill in particular, but to legislation in general. Laws that are enacted have an effect on everybody in some way or other, or an effect on certain groups within society. Their aim is, I hope, to improve the lot of people or to clear up some loopholes in earlier legislation. Legislation is fertile ground for solicitors, barristers and other practitioners of the law. They are all worthy people and I do not have any gripe with them. I do not share the common disregard for those who go about that business.

Those in the office of the Parliamentary Counsel who put together legislation must observe previous legislation and the likely consequences of particular measures. However, the language used, such as "whereas", "wherefore", "whereto", "hereunder" and "hereafter" is arcane and has no relevance to ordinary people. Those involved in drafting legislation may like to think they are in an elitist category. When television monitors were introduced throughout the Houses of the Oireachtas, I often had the impression that such people had many a wry laugh at how far removed we were from their notion of what lawmakers should be.

If one reads the debates of both Houses, one will see that what we are about is not reflected in the language used in particular items of legislation. I cannot understand that. There is no one whose lot would not be improved if the language used in legislation clearly and more precisely spelt out the detail of such legislation.

Senator Brian Hayes will be aware that when we were drafting our report on Seanad reform, we put forward a suggestion that, before Second Stage is taken, there should be a debating process involving those who stand to be affected by legislation. These people could be invited to the House, given the right to listen to the views of the lawmakers and those responsible for drafting legislation and they would then be in a position to indicate what should happen. Members may believe it is absurd to suggest that we should give the people a say in the development of legislation but I am of the opinion that this would be good. This is one of the matters we will be pursuing strongly in our reform package.

We operate here in a sort of semi-incestuous atmosphere. We talk to one another and believe that we are doing great work. In the main, we are doing good work but the people who stand to be affected by the law do not know anything about it until Second Stage is taken in either House. I agree with Senator Brian Hayes when a Bill is dealt with by a committee, Members are very much ruled by the civil servants who run the secretariat. I have no complaint about these people because they do great work. However, the people who stand to be materially affected by law — for good or ill — should be involved and consulted in the process at the earlier drafting stage. This would give rise to much better legislation than that envisaged, drafted, submitted and put through the Houses in isolation from those it stands to affect. What I am saying may sound outlandish but why should that be the case? We make legislation on behalf of the people. Such legislation is not intended to hold sway in some form of pious never never land.

I doubt if matters relating to the Interpretation Bill will become clearer on Committee Stage. I cannot make much sense of the Bill. Members may think I am a silly woman but I am of the opinion that I am speaking the truth. Other people might not like to do so because they may not wish to disturb anybody. Surely, however, the Interpretation Bill should make matters clearer. To interpret something is to understand it and make it clearer. This Bill does not make anything clear to me.

I thank Senator Brian Hayes and the Leader of the House, Senator O'Rourke, for their contributions.

Senator Brian Hayes raised a number of questions to which I do not have definitive answers. However, I will enter commencement mode and try to make matters clearer for him. I understand that the Law Reform Commission has issued a report which will change the terminology used in commencement provisions. The Minister dealing with the Bill on Committee Stage will go into that matter in greater detail.

As regards section 6, the explanatory memorandum provides greater clarity and states that the section will enable a court, when interpreting an enactment, to make allowances for certain changes which have occurred since the enactment was passed or made but without going so far as to encroach on the province of the Legislature. It also states that this follows the recommendation of the Law Reform Commission in its report, Statutory Drafting and Interpretation: Plain Language and the Law, and that this principle is also applied expressly through the interpretation of statutory instruments. This section represents an attempt to solve the particular problems that have arisen in the past and have been considered in such cases such as Keane v. An Bord Pleanála in 1997, Universal Studios v. Mulligan in 1998 and Mandarin Records v. MCPS (Ireland) Ltd. in 1999. These difficulties flow from changes which occurred during the period between the enactment of the statute and its interpretation. The Senator may deal with that matter in greater detail on Committee Stage.

How interpretative of the Minister of State.

In respect of electronic versions, the authentic version is that signed by the President and enrolled in the Supreme Court office. There is a catch-up period for electronic versions. At present, there are approximately 80 years' worth of prior legislation which must be captured electronically.

How many years?

Eighty. The legislation is in the process of being captured but it will take some time to do it.

What will be the position then?

I presume it will become an authentic version. The legislation is contained on a CD-ROM, a copy of which we received recently, but there are errors in the material which must be excised before it can be used as an authentic version.

Senator Brian Hayes also referred to a review mechanism. His suggestion was sensible and laudable. When the Leader and I first entered the Houses, every item of legislation was dealt with in both Chambers and matters moved much more slowly. That was great in a way because at least we knew what was happening. So much legislation passes through the Houses now that in order to have a review mechanism we would need to increase staff numbers etc. However, such a mechanism would be worth considering.

Section 11, as Senator Brian Hayes commented, allows the use of examples. For lay people, this is vital. A picture is worth a thousand words and it is a good idea to provide examples to help those of us who are not involved in the legal profession.

The Leader asked me to clarify the position regarding the six months. It is hoped the Bill will commence within six months of enactment.

There will then be a different explanatory memorandum.

Yes. That memorandum would take into account the amendments and changes.

I again thank both Senators for their contributions.

I thank the Minister of State and his officials for coming before the House.

Question put and agreed to.
Committee Stage ordered for Tuesday,25 May 2004.
Sitting suspended at 4.10 p.m. and resumed at 5 p.m.