Tom Kitt (Dublin South, Fianna Fail)

I move: "That the Bill be now read a Second Time."

The Statute Law Revision (Pre-1922) Bill provides for the repeal of 219 Acts that predate the foundation of the State. These are statutes that were enacted before 6 December 1922 that are no longer in force and are considered to be spent, obsolete or no longer of practical utility. It is the result of detailed research on the part of the Office of the Attorney General and extensive public consultation.

Some months ago, the Taoiseach laid out an ambitious plan to remove from the Statute Book the remnants of legislation which pre-date independence and, where necessary, to replace it with legislation more suited to our modern, democratic state. This plan is one part of the Government's wider commitment to better regulation and regulatory reform, a commitment laid out most clearly in the White Paper, Regulating Better, published in January 2004. Through this Bill, it is intended to help streamline the Statute Book by eliminating those pre-1922 statutes which have no relevance to modern conditions. As legislators, we have a tendency to add laws to the Statute Book but rarely to take any away. Statute law revision Bills, such as this one, help to redress this imbalance by lightening the load of regulation on our society.

This Bill will also reduce some of the practical problems and difficulties caused by pre-1922 legislation. One key difficulty is that pre-1922 statutes can be difficult for citizens and legal advisers to obtain physically. Such provisions are not nearly as accessible as the legislation enacted by the Oireachtas in the period since 1922 which is electronically available. In contrast, not only are the pre-1922 statutes not available electronically but some can only be read in volumes that are out of print. Another difficulty is that these laws, some of which date back to the 13th century, are written in a language and terminology which is obsolete and archaic. There are fundamental problems in requiring people to be bound by laws which they cannot reasonably be expected to find, interpret or understand. This Bill is part of the solution to that problem.

I will detail the substance of the Bill, but I would first like to outline to the House the wider better regulation agenda, the context in which this Bill appears. EU and OECD countries increasingly use the term "better regulation" to describe efforts being made to improve the quality and, where practicable, to reduce the quantity of regulation. It is important, however, to stress that better regulation is not simply deregulation. In some cases, removing regulations completely may well be the correct approach to take. In other cases and in fact more often, better regulation is about amending, consolidating, simplifying, updating or streamlining to improve on existing regulation.

One of the basic principles of better regulation is that the State should improve both the flow of new legislation and the existing stock of laws and regulations. The primary method by which the flow of new regulation is being tackled is through the introduction in June this year of regulatory impact analysis. This approach requires Departments to consult more widely with interested parties before regulating and to analyse in greater detail the likely downstream impacts of a proposed Bill or statutory instrument before presenting it to the Oireachtas. In the longer term, this process should lead to the drafting of better quality regulation that appropriately deals with the intended issue and does not negatively impact on other areas.

The second element of a good regulatory system is managing the stock of existing laws and rules. While it is critical to improve the quality and manage the flow of new regulations coming on stream, we must simultaneously tackle the body of existing laws and regulations. That is where this Bill fits in. Some of the laws and rules set out in the Schedule to this Bill are archaic and a heavy burden on the economy and society as a whole. That is why the Taoiseach asked the Attorney General last year to examine if it is necessary to carry forward into our Statute Book laws that were enacted as far back as the 13th century. This Bill is the first step towards removing some of this redundant legislation — the dead wood.

I wish to point out to the House the difference between law reform and law revision. Law reform is concerned with the substantive nature of the law. It changes the effective rights and duties which apply in our society. Law revision does not change the substantive law. It merely sweeps away those laws which no longer have any substantive effect. It is the process of removing legislation that has lost any modern purpose from the Statute Book. In this process, our citizens and legal professionals are given a greater level of certainty as to the state of the law. If this dead wood were not removed in this way, it would be very difficult in practice to determine which laws do and do not have continuing relevance.

Statute law revision also makes the process of enacting modern regulations more efficient. When preparing new legislation, earlier and existing legislation must be appropriately assessed to see what must be repealed or amended in light of the proposed new law. The greater the volume of such earlier material, the greater the effort and time that must go into this analysis. Given, as I indicated earlier, that much of the pre-1922 legislation is not available electronically or is listed only in old, out of print texts, this assessment can be an arduous, time-consuming and costly process. Statute law revision can help to reduce this burden on the Parliamentary Counsel and the Members of the Houses of the Oireachtas.

Ultimately, removing the legal dead wood facilitates the process of regulatory reform and plays a critical role in contributing to the maintenance of an updated, relevant and coherent Statute Book. In reducing the time spent locating and consulting the Statute Book to determine the law on a particular point, it also enables the wider legal and judicial system to operate more efficiently and effectively.

The Statute Law Revision (Pre-1922) Bill deals only with primary legislation from the years prior to Independence and is primarily concerned with laws passed by a number of parliaments which had authority over Ireland over a period of eight centuries. Plans are being developed within the Office of the Attorney General to ensure that secondary legislation will also be dealt with in due course.

At the time this Bill was introduced in the Seanad late last year, it covered 91 statutes. However, the Attorney General's office has continued its detailed research and has since identified many more statutes for repeal. As a result, the Bill was amended in the Seanad so that it now provides for the repeal of 219 Acts.

The statutes covered by this Bill fall into the following categories: Irish statutes passed before the union with Britain, which are laws passed by various parliaments sitting in Ireland between 1200 and 1800; English statutes passed before 1495 which were applied to Ireland and which mostly consist of laws passed by English Parliaments which were applied by virtue of Poynings Law in 1495; English statutes passed between 1495 and 1707 which were applied to Ireland; British statutes which were applied to Ireland which are statutes passed by Westminster Parliaments after the union of England and Scotland in 1707 but before the union of Britain and Ireland in 1800; and Acts of the late United Kingdom of Great Britain and Ireland passed after the Act of Union in 1800 but before the establishment of Saorstát Éireann in 1922 and which applied to Ireland.

As the Deputies will note, most of this legislation was enacted by the Parliament of the former United Kingdom of Great Britain and Ireland. This general body of statute law was continued in force by Article 73 of the Constitution of Saorstát Éireann and Article 50 of the Constitution of Ireland. Pre-1922 legislation still effective in Ireland, therefore spans back as far as the year 1200.

The varied nature of the sources of this legislation leads to a degree of uncertainty in the Statute Book. For example, a large volume of legislation was passed by the Parliament of Great Britain between 1707 and 1800, but only a small percentage of that legislation ever applied to Ireland. Separating the wheat from the chaff is a time-consuming exercise. Similarly, a large fraction of the legislation passed in Westminster from 1801 onward did not apply to Ireland. Therefore, in many cases, each Act must be carefully analysed to determine whether it applied to Ireland. The best way to minimise the practical problems caused by these and other complications is to have a vibrant policy of statute law revision.

Another reason for keeping statute law under review is that many of the old Acts have titles which are offensive such as lands of idiots and lunatics. It is not appropriate to have such legislation on our Statute Book and the removal of this antiquated and insulting material affirms the respect the State owes to all its citizens, regardless of their circumstances. It is timely that we repeal such statutes now as the Law Reform Commission recently recommended that phrases such as "idiot", "lunatics" and "those of unsound mind" be removed from legislation.

In the past two centuries, only a few statute law revision measures have been enacted to clarify, repeal and reform the entire body of law remaining on the Statute Book. Several major statute law revision Acts in the Victorian era repealed a considerable quantity of pre-Union Irish legislation. This type of omnibus repealing legislation was repeated in 1962 and 1983.

A significant amount of pre-1922 legislation has also been repealed in the normal course of law making by the Oireachtas, especially in the various large consolidation Acts which have modernised certain areas of law at different times. However, these Acts are a supplement to, rather than a replacement for, a thorough programme of law revision. Such a programme exists in the United Kingdom, where more than 2,000 Acts have been repealed and at least 2,600 more were partially repealed by the statute law repeals legislation, drafted by various law commissions. This left Ireland in the curious situation where many old English and British Acts remain in force here, despite having been repealed in the UK.

The need for statute law revision in Ireland was recognised through the establishment in 1999 of the statute law revision unit in the Office of the Attorney General. The unit was responsible for drafting the Bill, which represents the first broad-ranging statute law revision exercise for more than 20 years. Other EU and OECD countries have initiated similar programmes to streamline and codify their respective Statute Books. In recent times, the European Commission has given commitments to the reduction by 25% of the acquis communautaire, the existing body of Community treaty and subsidiary law.

The Bill deals exclusively with those statutes passed before 6 December 1922 which are no longer in force and considered to be spent, or which remain in force but are no longer of practical utility. Many Acts from that period, however, continue to form the cornerstone of Irish law, including the Conveyancing Act 1634, the Statute of Frauds 1695, and the Sale of Goods Act 1893. These Acts will not be repealed or affected by the Bill.

When the initial review of English, British and UK legislation commenced, it was decided from the point of view of time and resources to confine the exercise to an audit of legislation available from The Statutes Revised, a UK publication. Later, an expanded programme of assessment was based on a more comprehensive series of publications, The Statutes of the Realm. The main source of pre-Union Irish statutes was a revised version known as Cullinan's, The Irish Statutes 1310 to 1800, but other sources going back to 1200 were also examined. The cut-off year of 1922 is the date from which the Irish State began to legislate for itself. The review process that followed, involved the statute law revision unit examining the relevant legislation to ascertain the extent to which the legislation outlined was still in force in Ireland, by reference to the chronological tables pre- and post-1922. These tables show how, and when, legislation has been amended since its enactment.

As a result of the review, a list was compiled of all legislation identified as being in force which dated from the period between 1200 and 1922. It was decided to exclude from the review areas, legislation known to be the subject of active policy consideration by Departments or part of the programme for Government such as criminal law, conveyancing and land law, revenue law, liquor licensing law, water services law, consumer law, merchant shipping and fisheries law and the law relating to harbours and railways. Even after these large categories were excluded, hundreds of other Acts were identified as being possibly obsolete, spent, or no longer having practical utility.

The next step was to hold public and departmental consultations. A public web-based consultation was launched and Departments were supplied with a list of Acts relevant to their respective areas of responsibility. They were asked for agreement with the preliminary view formed by the Office of the Attorney General on those Acts proposed for repeal. In many instances, multiple consultations with many officials and sections within Departments were required, as well as numerous cross-­departmental ones. It was also essential in various instances to confer with subsidiary bodies and agencies with responsibility for, or an interest in, particular legislative provisions. It often transpired that Acts which no longer appeared to be of practical utility were still in use. Officials were also invited to make suggestions on the modernisation of that legislation which remained in force. The result of the exercise was the drawing up of the list of Acts set out in the Schedule which it is now proposed to repeal.

The Schedule lists 219 statutes for repeal. However, I will bring forward amendments on Committee Stage to change this list slightly. The result of further ongoing research into the pre-1922 legislation is that we are now in a position to include some additional statutes and several of those now listed should not be repealed at present. A separate exercise will be needed to repeal legislation enacted after Independence which remains in force but is no longer of practical utility. While there are no firm plans to undertake such an exercise, it would be a very useful continuation of the Bill's streamlining approach which could be undertaken if resources permit.

The Bill is short but effective. Section 1 provides for the repeal of legislation which consists of the public general statutes enumerated in the Schedule, together with one particular Act as set out in of section 1(2). Section 2 is a standard saving section and section 3 is the Short Title.

The Bill is only one element of a plan the Taoiseach outlined. The ultimate objective is to remove from the Statute Book all pre-1922 legislation and replace it with legislation passed by the democratically elected representatives of the people. Other elements of the Taoiseach's plan are well in-train. For example, the Office of the Attorney General commenced a project that will provide a comprehensive database of all pre-1922 public general legislation. The database will provide a template for future revision. I hope it will be possible to make the database electronically accessible by the public. Subject to appropriate cost-benefit analysis, projects to assess pre-1922 local, personal and private Acts and pre-1922 secondary legislation may be devised after completion of the study of public and general statutes. It is envisaged that a programme of repeal of pre-1922 legislation and re-enactment in modern form where necessary will be commenced on a Department by Department basis.

The repeal of the Acts identified in the Bill, and of any additional Acts that may be included for repeal on Committee Stage, will create a more accessible, coherent and transparent Statute Book. The Bill falls squarely within the Government's agenda for better regulation, bringing benefits to society and the economy through lower legal and transaction costs, while increasing the credibility of the legal system. Complete updating of the Statute Book is a significant task which will best be accomplished through a phased programme of measures. I thank all officials who have worked hard on the Bill's preparation. The Bill is an important first step and I commend its enactment to the House.

See this speech in context