Brian Lenihan Jnr (Dublin West, Fianna Fail)

In my heart of hearts I have great sympathy with the unanimous view of the Seanad. That said, the words "may" and "shall" have caused endless grief in litigation over many centuries. Senators will be pleased to hear that courts have often decided that the word "may" does, in fact, mean "shall".

In the context of the Bill, if the Minister did not proceed to issue the guidelines, the courts might well take the view that "may" does mean "shall" but the word "may" has been chosen by the Parliamentary Counsel with care. If Senators press the amendment and insert it, which it is open for them to do, the position is that the Minister would not commence that section of the Bill until the guidelines were ready because he would be under a strict legal obligation to have them ready as and from the commencement of the section.

Senators have already passed the commencement provision of the legislation, which provides that the Minister can commence this or that section or different sections on such day or days as he is pleased to appoint. The Bill already provides that the Minister can delay the establishment of these committees by not commencing the section at all. What we are dealing with is the sequencing of implementation. Given the sympathy I have for the unanimous view of the Seanad, I will have the matter looked at to see if we can come up with a formula which will give greater certainty to the establishment of these committees. I take it that is the unanimous wish of the Seanad.

I had made the suggestion because it is a common one used in statutory practice that one puts a definite time limit on when the guidelines would be issued. A period of three months might be a bit tight. We may opt for a more extended period, provided it is not too long. There is the question of inter-ministerial consultation but as we know that can often take a long time there would be no harm in looking at a strict time limit on such an exercise. The alternative is that we accept the mandatory formula about which Members are so enthusiastic, but then I suspect the Minister would not commence the section at all until the guidelines are in existence.