Michael Kitt (Fianna Fail)

I am aware that Senator Hayes has raised this matter previously. I will outline the reasons for the Government's opposition to the proposal. The Office of the Attorney General has advised that an automatic lapsing provision, of the nature proposed in this amendment, would create constitutional and major administrative problems. The amendment does not deal with the interpretation and application of Acts. It proposes that statutory instruments be put in place to require that all Acts contain a provision which will cause them to lapse, or cease to have effect, within a period of not greater than three years, unless renewed by positive resolution.

It is constitutionally problematic, as I have said, to purport or provide that all Acts should contain a provision such as that proposed by Senator Hayes. A constitutional amendment would be necessary to enable the Oireachtas to mandatorily bind itself in this way into the future. If such a provision were included in an Interpretation Act, the only constitutional interpretation, if any, that could be given is that the provision is not mandatory, but discretionary. As that would be the only possible interpretation, the provision would become meaningless. The Oireachtas, by means of an Act, cannot impose, in a case such as this, a mandatory restriction on the future exercise of its own legislative powers.

The automatic lapsing of all primary legislation after a period of time would be a fundamental departure from the manner in which legislation is enacted and applied in this jurisdiction. It would also be a departure from the manner in which such matters are dealt with in other common law parliamentary democracies, such as the UK, Australia and New Zealand. Amendment No. 3 misunderstands the nature of an interpretation Act. Such an Act applies unless the contrary intention appears in a particular enactment. If the contrary intention does appear, the contrary intention applies.

From a drafting perspective, the amendment is imprecise in nature. Does the phrase "not greater than three years" relate to the passing of the Act or its commencement? Problems would be caused if phrases such as " the sunset period" were not explained. The sheer volume of legislation would cause logistical difficulties. I know where the Senator is coming from, but I will give an example. If an Act that deals with a criminal matter lapses, it will cease to have effect. If an Act that establishes a body under law lapses, the body will cease to exist. What would happen to the employees of such a body? I could give a number of examples of such difficulties. I do not really wish to go any further other than to say that the Office of the Attorney General has advised against the acceptance of this amendment. I hope I have explained myself clearly.