Alex White (Dublin South, Labour)

I welcome the publication of this Bill, which is the third in a series of initiatives that have been taken in respect of statutory revision. Statutes are not proposed for repeal on the basis alone that they are old or on the basis alone that they are British. They are proposed for repeal because a judgment has been formed that they have become spent, obsolete or otherwise unnecessary. As I understand it, no statutes are being proposed for repeal if their repeal would give rise to a loss of rights and entitlements an individual might conceivably have. The criteria applied to a decision on whether to repeal are very important.

I join others in congratulating the people who have been involved in this process. A really impressive body of work has been done on behalf of the State. However, it is ultimately a matter for the Parliament - not even the Government - to decide on legislation, including the repeal of legislation. We rely on the judgment that has been applied to these statutes by people who have done the technical work and have advised us in the Parliament that these statutes are obsolete and have no further application. For example, one major criterion on deciding to repeal these statutes is their applicability to Ireland. If the statute does not have applicability to Ireland, then almost by definition it is obsolete. That would seem to be an unanswerable argument for repeal, but other criteria to be applied might tend towards the area of a value judgment. That is where great care needs to be taken as to whether it is right to have a particular law or not. If such judgments were being applied to this exercise, I would be very concerned. It seems that a much narrower technical function has been exercised. It is important that the Minister of State touched on that. He might confirm in his concluding remarks that we are not being asked to do certain things. We have not looked through the hundreds of statutes in this Bill. We are taking our job seriously, but somebody might conceivably ask us if we looked at all those statutes to check on what we were repealing. We are relying on the judgment that has been exercised, and I am happy to rely on it.

Statutes are not repealed just because they are old or just because they are British. This notion of archaic laws is thrown around. Many old laws are good laws. It is not bad law because it is old. Some laws endure for a great period of time, because they are regarded as rational laws. Just because a law is old does not of itself mean that it is bad. We made a conscious decision in 1937, when the people approved the Constitution, to continue to give effect to laws that were already on the Statute Book. That was a very important thing and we did the same thing in 1922. For those who ask when are going to clear away all this British stuff from before 1922, I remind colleagues that the people made a conscious decision not to do so, and to continue in effect with laws that existed previously. We did this for very good reason, because many basic things could not have worked in the country if we did not do so, but also because many of the laws were still rational laws for us, notwithstanding the fact that we were independent with our own Government. Laws related to how services were managed, provided and so on, and these, as well as basic laws of the land about offences against the person, were rational laws that we carried into the new State. Professor John Kelly, a predecessor of mine in Dublin South - I notice it disappeared today - made that point in very strong terms in his monumental work on the Constitution. He said that the old Article 73 in the Free State Constitution was generally taken to be the vehicle on which the whole corpus of law used in Ireland was carried across the constitutional divide and formally continued in force in the new State. It was a conscious decision made by us as a new State to do this. The same principle prevailed in 1937 for the laws that were passed between 1922 and 1937.

It is not self-evident that it was necessary to do this. My view is that it is correct to do it, but there seems to have been a difference of opinion going by some of the judgments in the High Court and the Supreme Court over the years as to whether laws would just fall into disuse. In the case of State v. O'Dea in 1986, Mr. Justice Keane spoke about the provisions of section 8 of the Petty Sessions (Ireland) Act 1851, which prevented the District Court from sitting in a building where spirituous or fermented liquors are sold. He said that the section had fallen into a limbo of disuse and therefore was inoperative, as it belonged to the vanished world of grand juries, county sessions and presentment sessions. In that case, the judge seemed to be saying that the law has fallen into disuse and nothing really needs to be done about it. He implied that the laws are old, they are dusty and nobody cares about them anymore, so there is no need for this kind of exercise we are engaging in now. That was one view. Another view was expressed in Nova Media Services Limited v. Minister for Posts and Telegraphs by Mr. Justice Murphy in 1984. He made the point that the Government is probably relying upon in this exercise. He stated that a statute cannot wither away from lack of use and cannot be repealed, waived, or abandoned by the express decision or agreement of the Executive. That confirms the view that the laws do not just wither away on the vine and that we have to repeal them if we want them gone. We cannot just leave them there. That is the legal context in which we are engaging with this work.

I think the better view is that we should be proactive about this and that we should not just have this view that if they are lying around the place, they are not doing any harm. Let us have a look at it and let us have this cleansing exercise in our Statute Book. That is a useful exercise. However, I must emphasise that it is for the Parliament to do this. We need to be satisfied - I think we are satisfied - that the analysis being done to assist us has been rigorous and has not strayed beyond a relatively narrow frame of reference, which is whether the statutes have any applicability any more. They are obsolete in the sense that they are "dead letter", or devoid of meaning or effect. That must be the criterion applied, rather than a broader value judgment which would peculiarly be a matter for us.

The Minister of State said in his speech that this would help the legal profession. There are not too many people out there who worry much about helping the legal profession. Perhaps it would help the legal profession. As a legal practitioner as well as a legislator, I can say that the most important thing for legal research is cataloguing. We often have an image of lawyers ploughing through book after book.

It actually tends not to work in that way. If there is a good cataloguing and library system, which we tend to have, in place, one can usually find what one is seeking relatively quickly. I am not sure if it is going to have a huge effect, one way or the other, in the legal profession. We are not doing this for that profession, rather we are doing it in order to have clarity in the Statute Book. What we are doing makes great sense.

I agree with Deputy Aengus Ó Snodaigh on a particular point which has often occurred to me on previous occasions. The Deputy's point relates to what happens when the House or its select committees deal with complex legislation. Let us consider, for example, the position on amending legislation. Such legislation usually amends a principal Act, to which one is obliged to refer back. In addition, there may be two or three other statutes that are relevant to the work one is doing. It is quite a job for any legislator to ensure he or she tracks down all of the material relevant to an item of legislation that is being amended. I do not say what I am about to suggest could be done easily or quickly and I accept that there would certainly be a cost involved. However, I ask the Minister of State to consider whether, at some point in the not too distant future, we might change the way we do business in the Houses when dealing with legislation. In other words, our work would not just be paper based; we could have quick on-line access to principal Acts, other statutes and relevant amendments. This would allow us to do our work better on behalf of the people.

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