Emmet Stagg (Kildare North, Labour)

Unlike my Fine Gael colleague I did not sit up all night burning the midnight oil on this issue. However, I wish to acknowledge the assistance given to me in this matter by the Labour Party legal adviser, Mr. Finbar O'Malley, in researching the area and in helping me to construct a sensible speech on the matter.

This Bill is undoubtedly welcome. It breaks the back of a task that has been poorly attended to for decades and those responsible for knuckling down to the job and producing this end result deserve our thanks. It is important to realise that this is only the start of the job and a great deal of work remains to be done. It could be said "a lot done and more to do".

As the Bill's Long Title makes clear, the concentration here is on repealing pre-lndependence Acts that have either ceased to have effect or have become unnecessary. More than 26,000 Acts were examined for this exercise and it turned out that more than 9,000 had already been wholly repealed. In addition, another 12,500 or so had never applied to Ireland. This left 4,536 statutes still in force here, at least notionally, of which 3,188 will be repealed by this Bill. Significantly, that means there will be another 1,348 Acts remaining on our Statute Book which were not passed by the Oireachtas.

On the plus side, at least those 1,348 Acts have been specifically identified and, for what it is worth, have each been given a Short Title. On the minus side, although we will continue these Acts in force, we have never felt obliged to publish any of them and the State seems unlikely to take on such an obligation at this stage.

It is said that the ancient Roman emperor and tyrant Caligula had his laws written in small script and then posted in the Forum upon high pillars "the better to ensnare the populace". We go one better than Caligula. We do not bother to post our old laws at all. They are all out of print. It is not as if those old laws just rest there inert and decaying. They are applied and enforced. Then we make life even more difficult by amending them. We add, subtract, extend and qualify. But, while we publish and debate amendments, we do not publish either the original laws we are amending or those laws as amended. The public is left to guess what the end result may be.

As an example of what I am talking about, my colleague Deputy Upton recently needed to check up on laws relating to cruelty to animals. In her efforts to find out what is the law at present in force and where one can get a copy of it, she started with the Protection of Animals Act 1911.

The Department of Agriculture and Food indicated that it does not provide copies of the legislation and refers such queries to the Government Publications Sales Office. The Government Publications Sales Office indicated that it refers customers seeking pre-1922 legislation to Her Majesty's Stationery Office in Belfast. Her Majesty's Stationery Office in Belfast confirm that paper copies of the 1911 Act can be ordered by credit card or sterling draft at £2.85. Requests will be processed in three to four days working days.

The help desk which operates the Statute Book in the Attorney General's Office was able to confirm that requests for pre-1922 statutes fall into the top five of its list of requests for help. The on-line Statute Book will tell one, if one is an experienced user, whether and where a pre-1922 Act has been amended but it will not disclose what the original Act looked like before it was amended or, therefore, what it looks like now.

One will find out, for example, that some changes were made to the 1911 Act by the Protection of Animals (Amendment) Act in 1965, by the Wildlife Act in 1976, by the Control of Dogs Act in 1986, by the Abattoirs Act in 1988 and by the Control of Horses Act in 1996. But changes to what? One has no way of finding out. The conclusion is that, unless one belongs to a law library or has access to on-line electronic resources, one will not see a copy of the original 1911 legislation. What is worse, even if one does have a copy of that Act, one will then need — with a scrapbook, scissors and paste — to assemble together a facsimile of what the law looks like now by including one by one, all the amendments subsequently made to that law. If one is privileged enough to be a Member of this House, one will have the efficient and professional resources of our Library and research staff to do that job.

It is surely unacceptable that legislation which is enforced on a daily basis should be so difficult to track down for so many of those affected by it. It is incredible that the Oireachtas could at least five times in 50 years have made major amendments to a piece of primary legislation like this without imposing on anyone the obligation to promulgate the law as so amended. It is even worse when those amendments are not made by the Oireachtas but instead are made under ministerial regulations. That has a devastating effect on the integrity of our legal system because it becomes increasingly difficult, if not impossible, to know with certainty what actually is the primary law.

The Attorney General and his officials should commit themselves in future, whenever a new Bill involves amendments to legislation that is out of print, to restating in full the law as amended rather than just setting out the amendments. Reading a statute should not be like reading a tortuous detective story, with clues scattered around, some of them misleading, but leading the assiduous to an eventual denouement.

This is, as I have said, the first stage of an ongoing project. We have a list of 1,348 Acts that remain in force. The next stage is to make those Acts available, preferably electronically. There is surely scope here for an all-Ireland approach since, for most of our history, we have shared a common Statute Book. The final stage is to consolidate laws in force so that cross-referencing between decades and even centuries to track down amendments and substitutions becomes a thing of the past.

The Government places a great deal of reliance on the statute law restatement procedure as a means of codifying the Statute Book. Instead of steering consolidation Bills through the Oireachtas, the work can be done and published on an administrative basis. The answer given by the Taoiseach to my colleague Deputy Quinn on 13 February 2007 seems to show that the work is going backwards. Deputy Quinn asked the Taoiseach the number of statute law restatements prepared and published to date by the Office of the Attorney General under the Statute Law (Restatement) Act 2002. He was told that the Office of the Attorney General has managed to publish just four restatements under that procedure since it became law in 2002. Significantly, it had prepared drafts of further restatements. The office stated that "however, due to pending amending legislation and other reasons, the draft restatements were not brought to certification stage".

It seems we in this House, or more accurately, the Government and its Parliamentary Counsel, are busier doing damage to the coherence and accessibility of the Statute Book than another section in the Office of the Attorney General is in trying to repair that damage by putting it together again. The reason they do damage is entirely down to the method of law-making they adopt. It is as if they do not want anyone to know what their laws are about.

For example, let us look at the current Education Bill. Instead of stating or re-stating what principles and rules should apply, it contains sections headed "amendment of section 2 of Act of 1998", "amendment of section 13 of Act of 1998", "amendment of section 53 of Act of 1998" and so on. There is no reason why we should legislate like that. All we are doing is making more work for the statute law restatement officials and making it inevitable that they will never catch up with the damage we do.

It is worth pointing out that the original Consolidation Bill procedure was not a product of legislation but is a product of our Standing Orders. I suggest one new amendment be made to our Standing Orders that might assist in bringing coherence to our laws. Where a Bill is introduced that consists entirely or mostly of amendments to existing statute law, it should be published and debated on Second and Committee Stages in the normal way. There should then be an instruction to the committee that it reports back to the House with a Bill consisting of the old Act as proposed to be amended by the new Bill.

The House would then have a consolidation measure, certified by the Attorney General as such, in front of it. Debate on Report Stage would be confined to the matters that were dealt with in committee, that is, the proposed amendments to the law, but the existing statute law would not be re-opened for debate. It seems that measures like this must be seriously considered rather than leaving it to the restatement officials to catch up with the Legislature.

For good measure, the officials have prepared not only a list of Acts we will retain but also a list of those Acts they can identify which will be repealed. They do not claim to have identified them all, but if a statute is not on the retained list or the repealed list, it will by default be repealed. I am slightly perplexed by some of the Acts being repealed, but no doubt, the Minister will be able to provide some elaboration when he replies on Second Stage.

If it is not thought necessary specifically to repeal Acts which clearly never applied to Ireland, why, for example, are we repealing the Local Government (Scotland) Act, the Sheriffs Court (Scotland) Act, the Trusts (Scotland) Act, the Welsh Church Act and so on? Why are we repealing the Poisons and Pharmacy Act 1908, only two sections of which ever applied to Ireland and which were repealed by the Houses of the Oireachtas in 1961? If pre-independence Acts remain in force only to the extent that they are not inconsistent with our Constitution, why do we think it necessary to repeal Acts dealing with titles deprivation, the regency of the Crown, the demise of the Crown, the pensions of dominion governors and the Civil List?

One could also ask questions about the Acts being retained in force. I would be interested to know, for example, how the Bill of Rights 1688, which pre-dates English union with Scotland, let alone Ireland, but which post-dates Poyning's Law, comes to form part of the Irish Statute Book and why it is being retained in force. Is the Attorney General really arguing that since independence, proceedings in this House have been and will continue to be governed by the English Parliamentary Privilege Act of 1603 rather than by the provisions of the Constitution that deal with parliamentary privilege?

The fact that we are retaining an Act to give effect to the peace treaty with Hungary signed at Trianon in 1921 raises a question as to whether this treaty remains in force, whether this State is bound by it and how many other pre-independence treaties might remain in force. On the domestic level, the Oireachtas will in future know how many statutes from before 1922 are in force. However, at the international level, does the Department of Foreign Affairs have a similar list of treaties that bind us as a successor state to the former United Kingdom?

There are other issues raised in the Bill that ought to have been settled long ago. Can it really be the case, for example, that there may still be extant orders made under the Government of Ireland Act 1920 and the Irish Free State (Agreement) Act 1922? If there are, they relate to the ultimate transfer of functions from the British administration in Ireland to the Provisional Government and then to the Free State Executive Council and its Ministers.

Some of the possibly excessive powers and privileges claimed by the Department of Finance in its dealings with other Departments of State are thought to date from the terms of these old transfer of functions orders. If that is the sole basis for its behaviour, which is not always favourable, it is frail enough. These orders are not published by the Attorney General, but he must know whether any of them are extant. Why not list and publish them?

Ultimately, our agreed commitment must be to make legislation more coherent and more easily accessible to those who need it. As part of this process, the Labour Party welcomes this Bill and will give it constructive consideration on Second and Committee Stages.

See this speech in context