Pat Rabbitte (Dublin South West, Labour)
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Question 2: To ask the Taoiseach if the Government has directed an audit of the Statute Book in order to ascertain the number of enactments vulnerable to challenge on the grounds set out in the judgments of the courts in cases (details supplied) as constituting an impermissible delegation of legislative power of the State; if a programme of curative measures is considered necessary; and if he will make a statement on the matter. [3671/04]

Bertie Ahern (Dublin Central, Fianna Fail)
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As a result of an examination by the Attorney General of recent court judgments on the delegation of legislative power, the Government has directed that each Department undertake an audit of the part of the Statute Book for which it has responsibility regarding delegations of legislative powers which may be affected by the decision of the Supreme Court of 27 January 2004, and the decision of the High Court of 29 January 2004, in Mulcreevy v. the Minister for the Environment, Heritage and Local Government and Dún Laoghaire-Rathdown County Council, with a view to identifying any remedial action that might be necessary.

The audit will take into account the judgments made in the cases referred to by the Deputy and some judgments in similar cases. It is not possible, at this stage, to say what curative measures, if any, will be necessary. Another recent decision, in the Leontjava and Chang cases, which were heard together, relating in part to delegation of legislative powers, is under appeal to the Supreme Court, which has reserved judgment in the matter.

Pat Rabbitte (Dublin South West, Labour)
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Does the Taoiseach agree that the kind of powers about which we are talking, which, up to now at least, have enabled Ministers to make orders, regulations, by-laws, statutory instruments, or delegated secondary legislation, are littered throughout the Statute Book? This has been the practice. Arising from the cases I instanced to which the Taoiseach referred, and to the subsequent Carrickmines case since the question was tabled, which was a point I raised in the context of the electronic voting order, and which the Taoiseach and the Government had to subsequently agree required them to enshrine in primary legislation the authority to implement electronic voting and the Bill has now been published, are those types of instances not littered throughout the Statute Book? Might there not therefore be other enactments vulnerable to challenge in circumstances where there is no adequate statement of principle or policy in the parent Act that the Minister is in no way governed or confined in the implementation of orders? Could that render those enactments vulnerable? When might the Attorney General be able to report on the assessment submitted to him by each Department currently involved in the audit to which the Taoiseach referred?

Bertie Ahern (Dublin Central, Fianna Fail)
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On the timing, the Departments were made aware that this was a matter of urgency. I hope their report to the Attorney General will be completed promptly. The Attorney General will then have to consider the extent to which changes will have to be made. It is his view that it is the prerogative of the legislature to solve any problem that currently exists by way of primary legislation. In other words, should the effect of a transfer of functions order, by implication, amend the scheme of primary legislation, the problem may be amended by primary legislation. I do not know whether that will require a large number of Bills. There are differences of opinion on this. It relates mainly to where secondary legislation has been used to amend something contrary to what was intended in the primary legislation or, as in the Mulcreevy case where there were two Ministers or more and perhaps an agency. That examination will take place and will ultimately determine how many legislative changes are needed.

Some of the issues have been highlighted by the Judiciary in cases over the past 20 to 25 years and there has been considerable narrowing down as a result by the Attorney General's office. It is hoped there are not now as many cases as we first thought. However, I am not certain about that.

Trevor Sargent (Dublin North, Green Party)
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As the Taoiseach mentioned the Carrickmines Castle case, would he accept a synopsis of it would indicate that a joint application was made by Dún Laoghaire-Rathdown Council and the Minister for the Environment, Heritage and Local Government, Deputy Cullen, to effectively destroy a national monument and then the Minster gave approval to himself for the action to go ahead? Does he not believe that the original National Monuments Act 1994 did not envisage that the Minister would make applications and then apply to himself for approval——

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy is well outside the scope of this question.

Trevor Sargent (Dublin North, Green Party)
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The essence of the question is whether curative measures are to be brought in. That is the point I am asking the Taoiseach about when he says in his reply——

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy is asking the Taoiseach to interpret legislation that was enacted many years ago.

Trevor Sargent (Dublin North, Green Party)
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I am simply trying to elicit from the Taoiseach, when he says he has not got plans for curative measures, whether the new national monuments Bill envisaged will ensure there is not a conflict between the Minister applying for and then approving an action that effectively seeks to destroy something he is charged with protecting. If he is not to have any other curative measure, will the new legislation at least ensure that this conflict is not continued?

Bertie Ahern (Dublin Central, Fianna Fail)
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We do not yet have the list of curative measures. Obviously, when the report is completed there will be a list of the curative measures required. It will mean, if the scheme of the legislation provides for two or more Ministers or agencies as participants in the decision making process, that this can only be altered through primary legislation. It has been the practice in this House for decades to allow the courts to decide these matters. That is the course to be followed in this case.

Jim O'Keeffe (Cork South West, Fine Gael)
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Does the Taoiseach think there should, perhaps, be a new approach as regards secondary legislation? Part of the problem of secondary legislation is that it goes through automatically, is lodged in the Oireachtas Library, and unless there is a motion within 21 sitting days, it is never debated by the House. Even if an Opposition party member tables a motion, it must then be debated in Private Members' time. Is there a case for some kind of filtering system whereby secondary legislation, or parts of it, could be referred to an all-party committee which could report to the Dáil if it felt that Dáil debate was necessary, and, in particular, where it appeared a substantive change was being made? Would the Taoiseach consider a new approach along those lines?

Bertie Ahern (Dublin Central, Fianna Fail)
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The Deputy has a point regarding such processing. That is now being done in the European legislation committee.

Jim O'Keeffe (Cork South West, Fine Gael)
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It is a good precedent.

Bertie Ahern (Dublin Central, Fianna Fail)
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It is, and I agree with it. I have no argument against the principles outlined in the judgment. Primary legislation should basically be quite broad. Legislation coming before the House should relate to principles which one should not be able to oppose. The courts tell us that, in secondary legislation, we should not amend an Act so as to make it contrary to the primary legislation. That is what is being ruled out, and I have no argument against that.

In the years to come I would not like to see a position develop whereby, every time legislative change is being considered, it must involve primary legislation. I fear that the system might view the judgment in that way. A great many Acts, statutory declarations or orders are straightforward. In that light, the suggestion by Deputy Jim O'Keeffe is valid. I accept that primary legislation should not be contradicted, although legal personnel might come up with an opposite argument. I hope the judgment does not undermine the basis of primary legislation, as that would only clutter the business of the House for years to come. As I have long argued, the House should spend more time debating the principles of primary legislation rather than the detail.

As Deputy Jim O'Keeffe is aware, better perhaps than I am, an appeal has been made to the Supreme Court on the issue of the statutory instruments. The argument of the eminent judge involved is that statutory instruments should be part of legislation. I disagree with that because I do not see how this House could work on that basis. I will have to accept and abide by the Supreme Court decision on the appeal, but I do not see the sense in the original argument. We must await the decision.

Pat Rabbitte (Dublin South West, Labour)
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From what the Taoiseach has said, I presume he agrees with the principle that changing the law is a matter for Parliament and not for Executive action. I refer him to the case of the Public Service Superannuation (Miscellaneous Provisions) Bill, which is still before the House, in respect of the superannuation of public servants, for example, and which will impact on the superannuation Acts. The Taoiseach is aware that these date from a code of law going back to William IV and under which civil servants are paid their superannuation entitlements. That Bill before the House makes changes which are not insignificant in the entitlement, for example, of teachers and several other categories of public servant.

Part of the code to which I refer is the Superannuation and Pensions Act 1976 which purports to allow the Minister for Finance to make changes, by order, in superannuation provisions. In exercise of this purported power, he made changes in the operative regulations of the superannuation regulations of 1980, which involved substantial change to statute law. Public and civil servants would like to be assured that when the Minister for Finance changes the law by ministerial order, it is not then vulnerable to challenge. I do not know if there is a system for prioritising what matters come under the Attorney General's scrutiny arising from the court cases concerning the Aliens Act cases and the Carrickmines protest. However, these cases are relevant to legislation currently before the House.

Bertie Ahern (Dublin Central, Fianna Fail)
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I do not want to go into individual Acts. However, whether legislation concerns social welfare, tax or pensions, so long as the basis and the principles of it are established, then as time progresses and matters move on, a Minister should be entitled to change it by order. This process should be protected so long as the principles and the basis of the legislation are not changed. Time moves on——

Pat Rabbitte (Dublin South West, Labour)
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I do not disagree with the Taoiseach on the overall process. However, in this case the principles are actually being changed. Extending pension rights to people aged 65 years, or for whatever different categories of public servant there are, is more than just updating superannuation entitlements.

Bertie Ahern (Dublin Central, Fianna Fail)
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This will be for new admissions to the public service and not for existing public servants. These arguments go back to the introduction of the 65 years of age retirement provision and the reason for it. However, a Minister can make orders for new cases in legislation, so long as it does not change the principles. The principle behind this legislation is that people are entitled to superannuation. The Minister is simply changing the age for entitlement. He is not changing it so that people will only receive 60% or 70% of their pension. The ministerial order will not take away from the primary legislation. If someone fights this in court, one never knows what the court's verdict will be. A normal ministerial order is not an unreasonable action, so long as it does not change the basis of the superannuation Act.

Pat Rabbitte (Dublin South West, Labour)
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Many teachers, as well as Members, will have a different viewpoint.

Bertie Ahern (Dublin Central, Fianna Fail)
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It is subject to people changing too.

Enda Kenny (Mayo, Fine Gael)
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Will the Taoiseach comment on the use of Henry VIII provisions in legislation and whether they are constitutionally sound? In February, the response to five different questions on the matter was that the interpretation of the law and the provision of legal advice is a matter for the Attorney General, in so far as the functions relate to those of Government. Has the use of Henry VIII provisions in legislation ever been discussed with the Taoiseach? He left many legacies behind him——

Pat Rabbitte (Dublin South West, Labour)
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Henry VIII or the Taoiseach?

Enda Kenny (Mayo, Fine Gael)
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Henry VIII and the Taoiseach have both left legacies.

Bertie Ahern (Dublin Central, Fianna Fail)
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I do not want to comment specifically on Henry VIII provisions but there are approximately 500 Acts on the Statute Book that predate 1922. I gave a detailed response to this some months ago. Many of these Acts go back several hundred years. The statute law revision unit is examining whether these will be re-enacted or deleted. I do not know how many go back to the reign of Henry VIII but all pre-1922 Acts are being examined.

Enda Kenny (Mayo, Fine Gael)
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Now that this work can be done in a smoke-free environment, the position of these Acts may become a little clearer. How long will the unit's work take — ten or 15 years?

Bertie Ahern (Dublin Central, Fianna Fail)
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The smoke-free environment will help. I do not have the specific notes on the statute law revision unit's work. The unit is trying to categorise the legislation in different areas. It hopes to re-enact what it requires to put as much as possible of the re-enacted legislation into a number of Acts and to clear the Statute Book for other areas. While many of the Acts are still law, in effect, they are dated and would never be used. The unit is examining Acts that could actually be used. It will probably bring forward a report on the Acts that it thinks could be used. I am not sure what percentage of the 500 Acts could be used, but I imagine that many of them must involve old issues that are not relevant today. Certain Acts in the criminal justice area probably are relevant. I think the unit will deal with the Acts that are appropriate.

Joe Higgins (Dublin West, Socialist Party)
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Does the Taoiseach agree that, in certain court cases in recent years, it has appeared that the Judiciary, in interpreting the law, has been acting as an extension of the Dáil rather than as pure judges of crucial issues? What does he think should be done to avoid giving huge latitude——

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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That question does not arise from Question No. 2.

Joe Higgins (Dublin West, Socialist Party)
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Question No. 2 asks: "if the Government has directed an audit of the Statute Book in order to ascertain the number of enactments vulnerable to challenge on the grounds set out in the judgments of the courts in cases (details supplied)". Many issues arise from that question, including the discretion of the President in referring legislation to the Supreme Court before it is signed. Something should be put in place to ensure that the Judiciary does not make the laws of the country.

Bertie Ahern (Dublin Central, Fianna Fail)
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The judgment in the case under discussion must be taken into account. As I said earlier, curative measures will have to come before the House. Under the Constitution, it is open to individuals to challenge legislative matters before the courts. Individuals have that right. The eminent members of the Judiciary are able to hand down judgments that we are honour-bound to take into account in this House.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Following on an earlier response, will the Taoiseach clarify that all pre-1922 legislation is being examined in the context of the current updating of the entire raft of legislation? When will a list of such Acts be published? When will we be advised of the details of the 500 Acts in question? Such information is necessary so that Members can know the scale and extent of the address of the legislation involved. Is there any prospect that ground rents will be addressed in the context of the trawl of pre-1922 matters that continue to vex?

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy's final question is well outside the scope of Question No. 2 and the Taoiseach's answer to it.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Taoiseach might be happy to inform the House.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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The Deputy's final question would be more appropriate to the Minister for Justice, Equality and Law Reform.

Bertie Ahern (Dublin Central, Fianna Fail)
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As I have said, 500 pre-1922 Acts are being examined. The statute law revision unit is examining such legislation as part of a project that is examining all Acts. As I have said, the unit will probably give advice on how to deal with such legislation. I hope that re-enactment can be taken collectively in many of the cases and that many of the other cases can be cleared. Our intention is to clear the Statute Book of any moribund or irrelevant Acts.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Or vexatious.

Trevor Sargent (Dublin North, Green Party)
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I asked earlier if the Taoiseach could outline any of the curative measures that are planned. He replied by saying that primary legislation will be required for curative measures to be put in place. Whether in the matter of the Carrickmines judgment, the unconstitutionality of immigration legislation or any other conflict in the courts, is that primary legislation to be seen as part of a wider raft of primary legislation or is it specific to the court case which found the matter to be unconstitutional? Is it the case that the Government should address the legislation as it stands on its own or is it to be treated as a section of a wider range of legislation? Does the Government have a policy on this?

Bertie Ahern (Dublin Central, Fianna Fail)
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The Deputy is asking whether there will be just one Act to deal with all these judgments. I am not certain yet, but I imagine there would need to be primary legislation in different areas, particularly where decisions have been made over the years. The note I read out was from the Office of the Attorney General stating that these matters could be corrected by primary legislation. Whether an individual Act would be required in each case has not been decided. The report on curative measures is not yet available.

Trevor Sargent (Dublin North, Green Party)
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My question was not answered. In the matter of the Carrickmines judgment, I mentioned the National Monuments (Amendment) Act 1994. The national monuments Bill is on the legislative programme. Is this Bill intended to encompass the court finding or will the court finding give rise to a separate Bill? Can we expect two Bills rather than one?

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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That is well outside the scope of the question.

Bertie Ahern (Dublin Central, Fianna Fail)
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If there is a relevant Act it may be possible for new judgments to be dealt with therein. In other cases primary legislation may be necessary, although I hope there will not be too many such cases.

Pat Rabbitte (Dublin South West, Labour)
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I see we will deal with 67 questions to the Minister for Foreign Affairs in two minutes.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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It is not the intention of the Chair to call further questions to the Taoiseach this afternoon.

Pat Rabbitte (Dublin South West, Labour)
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The courts did not rule that all secondary legislation is invalid. It is merely the case that if the principle or policy is not enshrined in the parent Act, it may be vulnerable. In terms of Deputy Jim O'Keeffe's suggestion, will the Taoiseach elaborate on the possibility of the Dáil addressing the question of secondary legislation in that fashion? Does the Taoiseach see any role for the Upper House in this regard? There is an increasing emphasis on secondary legislation of whatever type. It would be preferable for Ministers and those in the permanent Government not to be required to come to the House with primary legislation unless absolutely necessary. At the same time, there is an important principle here. Does the Taoiseach see any possible role in terms of the reforms being discussed for the Upper House in that regard?

Bertie Ahern (Dublin Central, Fianna Fail)
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As I stated in reply to the points made by Deputies O'Keeffe and Rabbitte, it was originally envisaged that legislation would be based on fundamental principles and amendments made either by statutory instrument or orders for secondary legislation. This happens in different jurisdictions in different ways. The case has been well made that we sometimes wander too far away from the primary Act, and that must stop. There is a large amount of secondary legislation and many statutory instruments and orders in different formats and based on different Acts. The change in the system was introduced in the Statute of Limitations (Amendment) Act a few years ago.

The more legislation that is consolidated the better. When we choose, for whatever reason, to amend primary legislation — or secondary legislation such as statutory instruments — it would be much better to consolidate it every five years using new technology. Consolidation can be extraordinarily difficult when one is dealing with maritime law, for example. I have recently dealt with such cases, but it is a nightmare trying to keep track of all the Acts, not to mention the UN Law of the Sea Conference in Geneva that went on for 30 years. We should try to consolidate our Acts as we proceed.

Deputy Jim O'Keeffe's point was that we could perhaps do so if a committee of the House had a function to clear secondary legislation, such as statutory instruments and ministerial orders, on an ongoing basis. If that committee saw matters that were serious, it could bring them to the attention of Parliament.

In recent years, the House has made good progress on scrutinising legislation but the legislative period is becoming narrower each year due to the increasing volume. The volume of legislation is enormous compared with ten, 15 or 20 years ago. When I was first elected to the House, the budget debate continued for approximately six months and filled up much of the debating time. Now, however, it is difficult for backbenchers to contribute to the budget debate because circumstances have changed so much. It would not be a bad idea, therefore, to have a committee to examine statutory instruments and ministerial orders.