Brian Lenihan Jnr (Dublin West, Fianna Fail)

I assume the purpose of the Senator's amendments is to gender-proof this particular Bill. All new legislation is now gender-proofed in that it always refers to "he or she". Where the purpose of the legislation is to amend older legislation, such as in this case, amendments are drafted in the same gender as the original Act. This is the particular issue highlighted by the amendment. The Criminal Justice Act 1960, which this Bill amends, was drafted using the masculine gender – hence the use of "him" and "his" in this Bill. As Senators will be aware, the Interpretation Acts of 1937 and 1993 provide that in every Act, every word importing the masculine or feminine gender, unless the contrary intention appears, is construed as applying to the other relevant gender. The masculine is taken to embrace the feminine and vice versa.However, similar amendments were proposed in the Dáil and it was suggested that the other sections of the 1960 Act, which are not the subject of this Bill, might be amended and gender-proofed. The Office of the Parliamentary Counsel was consulted and its strong advice was that this would create a huge additional workload which would have huge resource implications for all legislation. Were we to set about gender-proofing the earlier provisions of the 1960 Act, clearly a precedent would be established which would require us, in the case of any legislation amending older legislation which was not gender-proofed, to gender-proof the entirety of the older legislation as part of the amending legislation. I am sure Senators are aware of the large number of Bills considered in the Houses of the Oireachtas which amend older legislation.

I reiterate that new legislation is automatically gender-proofed, but this is not new legislation in the sense that we are amending older legislation which was not gender-proofed. In any legislation which remains pre-1993 legislation, the practice is to use the same gender as is used in the original Act. This approach applies equally to both genders. An issue of this kind has to be primarily a matter for the professional judgment of the Office of the Parliamentary Counsel and the Department must be guided by that advice.

I do not intend to accept the amendments. It is not a question of applying a male gender regime to legislation. The Office of the Parliamentary Counsel has assured us that it is a question of applying the appropriate terminology as suits the circumstances. Senator Terry referred to the need for plain and intelligible language in legislation. This Act must be construed as one with the 1960 Act and, in that context, it would be inappropriate to have a form of expression used in one item of legislation and a divergent form of expression in the other.