Wednesday, 29 June 2005
Interpretation Bill 2000: Committee Stage.
I welcome the Minister of State to the House. The amendment proposes to delete subsection (2), which states "This Act comes into operation on 1 January 2004", and amend it to state "This Act comes into operation 6 months after the date of its passing.". I am against the amendment and I want to explain why. Section 15 deals with the date of passing of Acts of the Oireachtas. It is clear that the Bill becomes an Act on the day the President signs it. This Bill has been in gestation for five years although I concede that Deputy Kitt has not been Chief Whip for that period. Why is the Minister of State suggesting that another six months must elapse before the legislation becomes effective? This is wholly unfair to people waiting on various interpretations in the courts.
Some years ago the Government published a regulatory framework, referring to better regulation, more efficiency and speedier passing of legislation. Now the Government is suggesting the Act would come into operation six months after the date of its passing. It has already been passed by the other House, having been published in 2000. It took three years for this to be disposed of and was passed on 1 July 2003. We debated it last year and we are now on Committee Stage just before the summer recess, yet the Government wants another six months to give proper interpretation and effect to this in the courts. I cannot understand why.
I ask the Minister to refer to section 15, which deals with all Acts. If it is good enough for an Act of the Oireachtas to be enacted when the President signs it why should this Act be any different? I firmly disagree with the line the Government is taking on this matter. If there is one rule for all Acts the same rule should apply to the principle Act on interpretation, given that this is an important piece of legislation.
We have a list of 25 to 30 Government amendments and I am sure the Minister will say that many are technical and deal with the drafting of the legislation. The Bill was published five years ago, yet at the last minute, just before the summer recess, we receive more amendments. Clearly the Government will not be willing to delay the legislation as this would mean the Bill would have to go back to the Dáil. The proposal regarding a six month delay in terms of implementation is a complete dilution of what we would expect of other Acts of the Oireachtas. Consequently, I am opposed to it.
The front page of this Bill is tempting satire. At the top of page five it states "Interpretation Bill 2000". Section 1(1) states: "This Act may be cited as the Interpretation Act 2003" and section 1(2) states: "This Act comes into operation on 1 January 2004". The Minister is now telling us it will come into operation some time in 2006. The Bill, as amended, is unlikely to pass through the Dáil before the summer recess although the Minister of State is probably the best authority on that. It has been sitting around for long enough. Who are the interested parties that need a delay of six months?
A delay of six months is a classic commentary on the manner in which we conduct the business of public administration. There is a resistance to timetables that are demanding in any way. Legislation that requires ministerial approval never states by when the Minister must make a decision. Most difficult decisions are never taken. Local authorities awaiting ministerial approval must wait while the matter is forever under consideration.
I need to be convinced of a plausible reason for this amendment unless the Government is intending to delay matters yet again. If we cannot complete the legislation this week the Dáil will return sometime after the summer recess, presumably between the end of September and the middle of October. This legislation will not take the concentrated effort of all of the powers of Government as it has been stewed over for the best part of five years. Why not specify a fixed date for implementation of, say, 1 January 2006 instead of eternally postponing it?
The only reason I can think of is that the Government plans to sit on this for another six or eight months and it does not want to have to make an amendment to it at that stage, which would result in the Bill coming back to the Seanad. I am not quite sure what happens next. If a Dáil Bill is referred to the Seanad, is amended in the Seanad, goes to the Dáil and gets amended again, does it come back to the Seanad? I am not sure.
This is another excuse to temporise. The Bill sat on the Order Paper for an unacceptably long period of time. I fear this amendment, without a time constraint that cannot be extended at the Government's convenience, will mean it will sit on the Order Paper of the other House for yet another unacceptably long period of time. I am not in the least impressed with the amendment.
There are no covert conspiracies on my part. I read what the Senators said in the debate on the Bill. This is a technical area, we are updating legislation and re-enacting law. Nobody is shivering in his or her boots waiting for the results of our deliberations. We are trying to deal with this in an honest, transparent way. As Chief Whip I assure the Senators that whenever this legislation can be passed in this House I will do my utmost to get it on the agenda of the Dáil. It will proceed to Report Stage and will then become law.
I accept that the Bill has been in gestation for some time. We propose that the Act comes into operation six months after the date of its passing. I ask the Senators to accept my bona fides that I will try to ensure the Bill progresses as quickly as possible. This will be in the next session and perhaps we could meet to discuss when we would like to see it enacted.
The reason for the amendment is that interested parties, such as the courts and the Judiciary, have the chance to be appraised of the Act. I cannot see what is the big deal. We are trying to modernise the law in this area. If we do not enact this legislation I do not think anyone would be knocking on our doors. This is a practical suggestion and I can assure the Senators that I will do my utmost to speed the Bill through the Houses. Hopefully it will be enacted close to the date suggested by Senator Ryan. I cannot give commitments but I will do my utmost to get it through the other House, once it is passed by this House.
With respect, the Minister of State has not answered my question. I ask him to read section 15. Best practice, as outlined by the Government's legislation, states, in section 15(1): "The date of the passing of an Act of the Oireachtas is the date of the day on which the Bill for the Act is signed by the President." Why are we doing something different in respect of this Bill when the guideline is set by the Government's legislation? In response to Senator Ryan and I, the Minister of State questioned whether anyone needed to see this legislation in shining lights. There might well be people depending on the legislation being enacted as speedily as possible. Given the importance of interpretation in the courts and the updating of this new Bill in comparison with the 1937 legislation, there may well be people depending on it being enacted as speedily as possible. We may well ask "Is there anybody out there?"
The Minister of State is deviating from best practice and the standard applied in the legislation by suggesting that it should be another six months before it commences. As Senator Ryan said, we have been waiting for this for a long time. The Minister also said this is in the interest of the technological age etc. I have had amendments ruled out of order on the basis of trying to modernise legislation and put it in an electronic format so that the courts would use it. However, there is nothing about that in the Bill.
Without venturing into territory regarding the Minister's position in terms of negotiating Dáil business, Members of this House are not overly impressed with the Dáil's capacity to process legislation. There are currently 12 Seanad Bills waiting to be processed, one of which dates back to 2002. If we leave a deadline in the Bill and say it must come into force on, for example, 1 January 2006, it strengthens the Minister's hand in the other House. As a result of the deadline, the courts and all the interested agencies will be aware that the legislation will come into effect on 1 January 2006. That will concentrate their minds, give the Minister leverage and the Bill will not be put to the end of a list of 13 or 14 items of legislation. Leaving an open-ended operational date means the legislation will get squeezed to the end of the queue yet again. This legislation may not be the world's most riveting legislation, but it is extremely important.
I always enjoy my visits to the Seanad and try my best to accommodate reasonable suggestions. I am willing to consider this in the light of what both Senators have said. With regard to the rationale behind our wording, Senator Hayes mentioned section 15 which states: "The date of the passing of an Act of the Oireachtas is the date of the day on which the Bill for the Act is signed by the President." However, a consideration of section 4 will explain to him why the proposal we put forward is legally correct. It states that the provisions apply "unless the contrary intention appears". With regard to how we can get away with the six-month reference, he should note that section 4 states: "This Act applies to an enactment except in so far as the contrary intention appears."
The Senators have made a valid point and I will accept Senator Ryan's suggestion that we agree on 1 January 2006 and bring forward an amendment on Report Stage to that effect.
The definitions in section 2 make no reference to legislation of the European Union, which is referred to in section 28. According to the proposed amendments section 28 is opposed. It also is marked with an asterisk, but I am not sure whether that is a misprint or it is the Government that opposes the section. Surely we cannot put through an interpretation Bill without reference to European Union directives and legislation. These, of course, should be incorporated into Irish law, but still have the force of law here, even if not incorporated.
Yes, never mind me. The new legislation allowed us to clean up the Statute Book to make more sense of it. Section 2(2) states: "For the purposes of this Act, an enactment which has been replaced or has expired, lapsed or otherwise ceased to have effect is deemed to have been repealed." In this regard, does this House, where an Act has lapsed, is irrelevant or out of kilter with modern times, still have the power to cite such an Act and repeal it? Can this be done without an Act of the Oireachtas or an instruction on the part of the Minister or Minister of State?
The Cathaoirleach has clarified that the Government intends to delete section 28 which refers to the European communities. There are issues relating to cross-referencing of European legislation and Council directives with which I will be glad to deal. On Senator Ryan's specific question, section 2 deals with domestic law and concentrates on that.
I may have to come back to Senator Brian Hayes because I am not sure my officials have the up to date position on it. If any issues need clarification, I will come back on them before the end of this debate. I have just been advised that section 2(2) does not apply to repealed Acts.
I probably should not have spent as much time this morning reading this Bill as I did. I have a problem with regard to the word "absurd" in section 3(2)(b)(ii) in the phrase "the other enactment would be changed in intent or become unclear or absurd". I have no problem with "changed in intent" or "become unclear", but "absurd" is an extraordinarily subjective word. I am not trying to be awkward about this. Wearing my left of centre ideological hat, half the economists in Ireland think my position on many issues is absurd.
I have been told that the word "absurd" is well used by the courts. This section provides that this legislation does not apply to another Act if "the other enactment would be changed in intent or become unclear or absurd". Like the Senator, I favour more user-friendly language. The explanation I have been given is that the word in question is well used by the courts.
This technical drafting amendment will clarify the language being used in this section. While the words "except in so far as the contrary intention appears in this Act" in section 4(1) mean that the Interpretation Act can apply, in part, to another Act, this is expressly provided for by the insertion in the section of the phrase "a provision of this Act". It is a technical drafting amendment.
There is a need for an official in the Office of the Chief Parliamentary Counsel to learn to write intelligible English. It takes one approximately five readings to ascertain what certain parts of this Bill mean. I do not blame the Minister of State for that.
I move amendment No. 3:
In page 6, before section 5 but in Part 2, to insert the following new section:
"5.—(1) All Acts shall contain a provision causing the Act to lapse in whole within a period not greater than three years.
(2) An Act which has lapsed under this section may be renewed by a positive resolution of both Houses at any time prior to the expiry of the sunset period.".
I said on Second Stage, a year ago, that I intended to propose this amendment on Committee Stage. The new section I have proposed, which will provide for the sunsetting of legislation, does not relate to Florida or older people enjoying long periods of time by the beach. It is understandable that the Oireachtas is frequently required to pass new legislation when problems emerge in any aspect of society. Amendment No. 3 provides that all future Acts will become redundant after a three-year period if the intention of the Acts is no longer real and substantive. The Government can ensure that such Acts do not become redundant by passing a positive resolution of both Houses. Such a resolution will ensure that the three-year sunset provision is put to one side and the provisions of the Acts can continue in force.
I have proposed this amendment because I feel that the way in which this country's legislation is produced can be changed if we provide that the Oireachtas can consider making future legislation redundant after three years. We can facilitate the use of non-legislative means of solving problems by allowing the Office of the Chief Parliamentary Counsel and Departments to avail of such a provision, which is in place in other jurisdictions. Currently, the automatic response when problems arise is to decide new legislation is needed to sort it out. I have proposed that a three-year sunset clause be included in all legislation as a standard provision.
The Minister of State referred earlier to the amassed deadwood of post-1309 legislation, which we abolished last month. We increase the amount of legislation on the Statute Book on a daily and yearly basis. We need to consider the substantial question of how much of the legislation will be relevant in the future. The acceptance of this amendment will allow the Oireachtas to consider the relevance of various legislation to a modern-day setting. The three-year sunset rule will apply unless the legislation is renewed by "a positive resolution of both Houses". Such a resolution would enable the Act to continue in force until a future time. The existence of a sunset provision would enable legislators and policymakers to provide a non-legislative solution to many of the problems we face.
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.
I thank the Minister of State for his reply. Under this amendment, an Act will lapse only if a positive resolution has not been passed by both Houses of the Oireachtas. I understand that a great deal of primary legislation provides that the Act in question is subject to a mandatory automatic review. I do not think I will win this argument, but if this amendment is accepted, this provision will have a dramatic effect on the way in which we respond automatically to problems by putting new statutes in place.
The Minister of State did not say whether he thinks this is a good idea. He outlined to the House the advice he has received from the Office of the Attorney General, as he is required to do, but he did not comment on whether the proposal would lead to better regulation. When he spoke on Second Stage he referred to the White Paper, Regulating Better, which was published by the Government in January 2004. One of the central arguments used by the Government in favour of this Bill is that the Statute Book is being regulated and a more modern form of parlance is being used for interpretation, which is to the benefit of everyone, particularly the courts. I have proposed a means of much more efficient regulation, which will ensure that legislation that becomes redundant is removed from the Statute Book.
I understand some of the difficulties which have been outlined by the Minister of State. I would have thought that the general principle is important, regardless of whether we think it is relevant. If we review legislation automatically, which is a fundamental provision of many Acts being passed by the Oireachtas nowadays, why is it not possible to terminate legislation if it does not have a modern application? That is the point I am making in amendment No. 3.
It is absurd for the Attorney General to be worried about the sunset of legislation, given that there is an amendment to the Bill which is precisely intended to deal with marginal or shoulder notes. It states that none of the following shall be taken to be part of the enactment. I am not sure why the Attorney General was worrying about marginal notes when there is an amendment stating that they are precisely and unequivocally excluded from the meaning of the enactment.
Having said that, I do not agree with the Fine Gael amendment. If there were a three-year lapse on the Freedom of Information Act, the Government would quite happily let it lapse and there would not be a resolution in both Houses of the Oireachtas to renew it. If we tried to do so, we would be voted down. I would rather have the legislative inheritance of a good Government preserved, like the last time we had one, rather than automatically——
No, the rainbow Government was in power. That was one of our big mistakes.
I would not be in favour of this amendment. However, the Oireachtas should set up a process of continuous revision of statute law. It would be useful to have a committee of the Oireachtas to examine statute law and also to respond to the Law Reform Commission's occasional submissions on legislation that is defunct. I will have a few queries later about the fact that apparently legislation can never lapse and what this might mean. I am not in favour of the amendment.
In reply to Senator Brian Hayes, I share the views of Senator Ryan on this matter. If one considers the dangers of lapsing legislation, leaving aside the views of the Attorney General on constitutional issues, the argument would fall on examining the issue from a more positive perspective. As the Senator rightly acknowledged, we are considering revision of all the legislation and getting rid of pre-1922 legislation where necessary. Much work is going on within my Department in that area.
On the specific question about legislation, there is provision in specific Acts for a review. From that perspective, if there is legislation appropriate for review, it should include that review provision. This is the best way to go about the matter. I take note of what the Senator said. I will relay his views to the great team of officials in the Taoiseach's Department who are examining the broader legislative programme to try to modernise legislation. This is as far as I can go in this debate.
The discussion has been useful but I am not aware of the average number of Acts passed by the Oireachtas in the 1990s comparison with the 1940s. We are now living in a much more complex and complicated society and, consequently, legislation is often needed to address modern problems. However, these problems sometimes lapse and a problem that existed in the 1960s is no longer a problem today.
The point of my amendment is to determine how it is possible that some of these redundant problems in terms of the legislative response are still on the Statute Book. We must find a means of cleaning up the entire Statute Book. I suspect the average number of Acts passed in the 1990s by comparison with the 1940s would be 3:1. This is a bigger application, because there is no point having legislation if it is not enforced or enacted. We frequently pass legislation in both Houses of the Oireachtas which is not enforced. It is becoming utterly irrelevant as it is becoming unenforceable on the ground. The objective of our amendment is to shake-up the mindset at the heart of Government to ensure that when Acts are being proposed and enacted, they are applicable, enforceable and serve a purpose, rather than continually putting Acts on the Statute Book which gather dust.
When reporting this morning on our end-of-term work in the Dáil, the point was made that 22 pieces of legislation were enacted since September. As the Senator said, there is a lot of legislation going through at a much speedier pace than was the case one or two decades ago. I agree that there must be a constant renewal and review of legislation. I will certainly take on board the points made by Senators.
I want to echo what Mr. Kevin Murphy, the former Ombudsman, said recently when he spoke about the need to scrutinise legislation in both Houses of the Oireachtas. He had difficult things to say to politicians and Government alike in respect of how much each Act is scrutinised and whether there is a proper scrutiny base. There are considerable question marks over that. It adds to the ineffectiveness of Government if legislation is not properly scrutinised by either the Opposition or Government — I readily admit this is a problem on both sides. It is pointless continually putting legislation on the Statute Book which does not have an application that one would expect. In previous generations, we had more time in the Oireachtas. People spent more time on committee work. This point which was alluded to by Mr. Murphy was a very valuable contribution.
These are technical drafting amendments to clarify the language that prevents the possibility of words clarifying a substantive provision being read as the substantive provision itself, that is, paragraphs (a) and (b) relate back to the opening words of the section, not to the qualification of these words by the phrase commencing with "other than". In simple terms, they relate back to the word "provision". The amendment seeks to make the language clear.
The initial citation was, "the literal interpretation may be departed from and preference given to an interpretation based on the plain intention of the Oireachtas ...". Someone has ingeniously produced a new provision which states, "the provision may be given a construction that reflects the plain intention of the Oireachtas." Congratulations to those involved in that.
In page 7, subsection (1), lines 4 and 5, to delete "the literal interpretation may be departed from and preference given to an interpretation based on the plain intention of the Oireachtas" and substitute "the provision shall be given a construction that reflects the plain intention of the Oireachtas".
In page 7, subsection (2), lines 16 to 18, to delete "the literal interpretation may be departed from and preference given to the interpretation based on the plain intention of the maker of the instrument" and substitute "the provision shall be given a construction that reflects the plain intention of the maker of the instrument".
I move amendment No. 12:
In page 7, line 25, after "instrument," to insert "so as to give the enactment or any provision of it an updated construction".
This is an attempt to improve the language of the legislation. For the layman trying to find his or her way through it the difficulties are endless. This attempts to give concrete proof of the interpretation at the end of section 6.
I am intrigued that the Interpretation Bill 2000 is going to be one of the most difficult pieces of legislation to interpret.
Something is seriously wrong and I do not know what it is. Section 6 is a fine example. It intends to be a catch-all to prevent people having to brandish their spears to prove they are entitled to enter the Houses of the Oireachtas, or something like that from the 14th century. It states that if the changes conflict with "text, purpose and context" they cannot apply. It might avoid a few awkward situations but we are not really sure what it means.
We are trying to update the law without identifying where the problem is. If the problem is anything other than a simple textual matter it will still exist in so far as its text, purpose and context permit.
I move amendment No. 13:
In page 7, before section 7, to insert the following new section:
"7.—The original and authentic version of an Act is that which—
(a) in the case of an Act of the Oireachtas, is the signed text of such law as is enrolled for record in the Office of the Registrar of the Supreme Court pursuant to Article 25.4.5° of the Constitution,
(b) in the case of an Act of the Oireachtas of Saorstát Éireann, is the signed text of such law as is enrolled for record in the office of such officer of the Supreme Court of Saorstát Éireann as Dáil Eireann determined pursuant to Article 42 of the Constitution of the Irish Free State (Saorstát Éireann),
(c) in the case of any other Act, is such text as corresponds to an enrolled text to which paragraph (a) or (b) relates.".
Is amendment No. 14 included with this, a Chathaoirligh?
They are similar but not the same.
I propose a new section to give a straightforward interpretation, a literal definition of what is an authentic version of an Act. I am advised that reference is made in the Constitution to an authentic version but there is no literal interpretation in any Act of the Oireachtas including the Interpretation Act 1937 and the Bill being discussed today.
As the Minister can see I have cut and pasted part of another section. If the Constitution refers to it and if reference is made in the courts to an authentic version of an Act there should be a definition of it and I am not aware of one. I am attempting to strengthen the Minister's hand by making interpretation straightforward, as Senator Ryan also wishes.
My advice is that this is provided for in the Constitution, a point which may have been raised before when this House debated the Bill. In effect, the amendment paraphrases the Constitution. It is inappropriate to attempt to provide for something which is expressly covered by the Constitution or by the constitution of the Irish Free State. There is no need for this amendment. The Constitution provides for precisely what the Senator is trying to achieve.
Are we not continually told by the Supreme Court when it comes to controversial issues, examples of which I will not go into today, that legislators have failed to legislate for things that need to be legislated for? When many such controversial matters have gone to the Supreme Court we have received a collective rap on the knuckles, and rightly so.
If as the Minister has confirmed this is in the Constitution it should not be left to the Supreme Court to interpret what it means. It should be our job. The Supreme Court has stated on many occasions, on issues like abortion, that there was a collective failure on the part of the Oireachtas to legislate. Is it not more sensible that we interpret legislation, even if we do not reinterpret it? As the Minister said it is referred to in the Constitution but not in statute.
I move amendment No. 14:
In page 7, subsection (1), lines 28 to 40, to delete all words from and including "set out-" in line 28 down to and including "relates." in line 40 and substitute "in the authentic version of an Act.".
Do the same arguments apply to amendment No.14 as to amendment No. 13, and will the reply be the same?
Section 7 begins: "In construing a provision of an Act for the purposes of section 5 or 6,". Section 6 states "a court may make allowances for any changes in the law, social conditions, technology, the meaning of words" etc. and section 5 deals with construing ambiguous or obscure provisions. It surprises me that a court may make use of many things as reference points for interpreting legislation but not, apparently, the debates of the Houses of the Oireachtas. However, it is extraordinary that the section does not include an enabling provision. While it is not intentional, it makes little of the fact that legislation for better or worse is debated often in detail. Questions about ambiguity in legislation are often raised during debates and the interpretation is that clarification is unnecessary but the Oireachtas will be marginalised unless the courts may at least advert to the reports of its debates.
Senator Ryan has raised an important issue. Frequently the Committee and Report Stages debates tease out and reflect many provisions, which will be enacted. When they are ultimately interpreted in a court case and an attempt is made by the Judiciary to fully interpret what the Houses meant when an Act was passed, either side of the argument in the case can use passages from the debates in either House to bolster its case. Will the Minister of State confirm this happens? If so, a reference should be made, as Senator Ryan sensibly pointed out, to this in the section. If the debates are used to bolster an argument, a reference should be made in this regard to give it legal grounding. High Court judgments regularly cite what was in the mind of the Executive and the Legislature when legislation was passed. If debates can be used by the defence or prosecution, they should be referenced.
No, it does not clarify anything. Section 6 states, "In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in an Act or statutory instrument and other relevant matters...". How would it not help to clarify what was meant by the words at the time the legislation was passed? What better way is there than to examine what the Members of the Legislature thought they meant, which is what Committee Stage is about?
I do not accept that providing that the courts "may" examine the debates is sufficient. I would be last to say that the courts must examine the debates because I do not wish to constrain the Judiciary and we probably would not be entitled to force the Judiciary to do so. It should be made clear that judges may examine them. All of us accept they examine the debates. However, I recall raising a question with a senior official in a Department regarding something that happened in the House and he replied that the Seanad debates were not circulated to the Department and he did not know what I was talking about. The Houses of the Oireachtas are an important reference point and for all the rubbish I hear uttered in the House on occasion, I have heard a great deal of good sense talked by Members with different perspectives, which set issues very much in the context of the country as it is today.
If the Minister of State is reluctant to do so, I will draft an amendment for Report Stage but I would prefer if he would draw on the expertise at his disposal. There is no reason to exclude a subsection stating: "The debates of the Houses of the Oireachtas and committees thereof."
I will table an amendment on Report Stage. If the Minister of State says he will interpret this amendment elsewhere, even in the Dáil, I will be happy. However, a reference to the Houses of the Oireachtas should not be excluded from the section.
I have nothing to add. Nothing prevents the Judiciary from reading reports of the Oireachtas debates. I agree with the Senator that a great deal of sense is talked in both Houses. I am not the only Minister who believes this House has done more than its fair share of work on legislation. I agree it is important to have reports of the debates so that the courts can read them but the Senator agrees there is a difficulty requiring the courts to examine them.
The sections states "the court may make use of all matters...". I am concerned that by outlining what the court may do, the Minister of State is also stating what it may not do. If it does not mean the courts are prevented from doing other things, the section is unnecessary but if it means they are prevented from doing other things, then the section is outlining only what they may do. The courts do not have to do everything outlined but it is clear they may not do any more.
The section was inserted on the basis of the Law Reform Commission report and it permits the courts to take into account, for example, scientific developments and developments in social conditions and technology since legislation was enacted. That is an example of the reference to relevant matters and the courts may taken into account developments of that nature.
Will the Minister of State explain why legislation passed by both Houses of the Oireachtas is not on the website the next day? Our first amendment sought to bring some efficiency to the operation of Government whereby legislation enacted would be on the website the next day. I accept however, that amendment No. 26 is ruled out of order on the basis that it would be a charge on the Exchequer.
If the Government is lecturing business about regulation and saying that it will do something about its own house, it should start here. For the efficient operation of the statute, and to ensure that people know it, it should be up and running electronically within 24 hours of the President's signature. That is the best practice and standard we should apply in these cases.
This is a question of resources. I am advised that it would be impractical. The requirements placed on the State through the Office of the Attorney General would impose a significant financial compliance requirement and a charge upon the people. In addition, copywriting the Acts is based in the Houses of the Oireachtas, not the Office of the Attorney General.
The requirement to have chronological tables for all enactments simultaneously available with the enactment concerned, within one day of its making or passing is impracticable, and for large Bills with substantial amendments would be technically impossible even with unlimited resources. The amendment is ruled out of order because it would be a financial burden.
How long does it take, on average, for an Act when passed to become available on a CD-ROM or whatever? If we do our business and pass legislation we have a responsibility to get it up and running as soon as possible, particularly for people who regularly use that information in an electronic format. If better regulation means anything it means that we improve our performance on this issue and put the information on the screen as soon as possible.
I am told that it is up on the Oireachtas website relatively quickly but it takes time for the Office of the Attorney General to put it up. I can inquire about the precise time for the Senator. It is an issue of resources which I know from dealing with the officials in that office, is an important one. Hopefully, some of the updating legislation we are introducing will improve this process. We are pushing for better regulation, a matter in which this House also has a strong interest.
That answer is not good enough. If the material is already available on one website, to put it on another website involves only pressing buttons. There is no cost involved. It does not make sense. If the Office of the Attorney General delays in doing that it is not a question of manpower or costs but only a matter of transferring the information from one website to another.
The problem is greater in regard to statutory instruments than in regard to Acts. Practitioners in this area who try to get general applications before going into court to argue a case say it is virtually impossible to access the statutory instruments expeditiously on a website soon after the Minister has signed them into law. Instead, they must go to the Government Publications Office and pay €3.75 per page. That is a crazy way to do business in 2005.
I would be more than happy to raise this issue with the Office of the Attorney General. The information appears first on the Oireachtas website. I will be glad to discuss with my officials whether anything can be done to increase the speed with which the information is processed. We will deal later with the Senator's amendment about the electronic form of a document. Problems surround the issue of disclosure on websites.
I move amendment No. 29:
In page 9, line 3, after "Act" to insert "in electronic or printed form".
This section states,"An Act is a public document and shall be judicially noticed". In this amendment we suggest that judicial notice be taken of Acts in electronic as well as printed format, which is not the case now. The current situation is a paper trail. If the court notices an Act it is as a printed document. It seems bizarre that one cannot refer to an Act on a screen or in an electronically usable format.
Some of the arguments surrounding this issue relate to the inaccuracies in some CD-ROMs. Nevertheless, the reference should be extended. The Oireachtas makes this decision. This matter should not be left to the Judiciary which should follow what we ask it to do in this case, namely, notice a public document in printed and electronic format.
The proposed amendment is connected to amendment No. 30 inserting a new section 14 regarding the electronic version of Acts. The amendment is not accepted.
In addition, the proposed amendment misunderstands the nature of section 13. This section merely deals with the consequences of something being an Act, namely, that it shall be "judicially noticed". It does not deal with the physical text of the Act other than as a document.
In the event of a question as to what constitutes that text ultimate recourse must be had to the version as signed by the President. I refer the Senator to Article 25.4.5° of the Constitution. That version is in effect the public document referred to in section 13 of the Bill. It must be signed by the President, or by the commission exercising the functions of the President under Article 40 of the Constitution. Article 13.3.1° requires that: "Every Bill passed or deemed to have been passed by the Houses of the Oireachtas shall require the signature of the President for its enactment into law." In that context the proposed amendment does not appear to accord with the Constitution.
This is a technical area. I appreciate the interest shown by Senator Brian Hayes and other Senators in the electronic form of Acts and recognition of technological developments. The information society is one of my areas of responsibility. We will introduce some initiatives in e-democracy and we are doing significant work on e-government. While I appreciate the Senator's point of view I must give a technical answer. The only official text of an Act is the version as signed by the President, which is then enrolled in the Supreme Court office. Every Act must be signed by the President.
The Minister of State referred to the Oireachtas e-democracy unit, which I recently learned won a deserved award for the best parliamentary website in Europe. We clearly recognise this area. We are not living in the 18th or 19th centuries but the 21st century. While I understand that the paper document signed by the President is the actual Act, we must recognise the need and sense of having electronic communications in this area. Those of us who see the amount of paper in our offices each morning know that the vast majority of it will not be read again. If one were to multiply the amount received by each Member by 226, the damage done to the environment is sufficient reason to wonder whether there is an easier way.
I understand from Article 25 that the President signs the legislation in English and Irish and it is then enrolled in the Supreme Court office. Is the Minister of State saying that for this to become applicable, we must change the Constitution?
As I sit here, I feel I could return to the time of Gutenberg's invention of the printing press, when people said something was not authentic unless it was handwritten and that printers were an untrustworthy idea. The machines could produce many documents. People asked how they could possibly be secure if they did not have a handwritten inscribed document. I am certain this is what they said 500 years ago and it is now being said again. People suggest that this electronic way to communicate is suspect. I should have a screen in front of me in this House on which I could access the information without needing buckets of paper.
I am advised that further work can be done by the Senator on this matter. Perhaps we could all do so. Proof of what the Act states could be pursued under the Documentary Evidence Act 1925. Under section 2, proof of an Act can be given "by the production of such Act or Journal printed under the superintendence or authority of and published by the Stationery Office". We are discussing a technical area.
A seal was used in medieval times, as the Senator knows, and the signature became the authentication of the seal. This matter is steeped in history. I suggest the Senator examine the Documentary Evidence Act 1925 and I will ask my officials to do likewise.
Perhaps my example was a poor one. I will address the jargon of "laying" something before the Houses of the Oireachtas. Where do we lay these matters? We do not, as we put documents in the Oireachtas Library and send paper documents to every Member. It would be more sensible to lodge something in the Library and send it in electronic format to Members, who could lay their hands on the document if they so wished. It is essential to make this service available.
I want to convince the Minister of State that we are trying to bring democracy closer to the public. Many people in the community do not realise the amount of work carried out here. Part of our task is to make the people understand how much good work we do. One means of doing so is ensuring the information is available and getting people to understand the benefits of electronic communication.
I will confide in Senator Quinn that one of the first questions I asked my officials when I examined this Bill related to the issue of electronic signatures. As the Senator said, the Taoiseach and the former President of the United States of America, Mr. Bill Clinton, were involved in promoting the move towards electronic signatures in a technological age. At this stage, it would be best to say this is not an interpretation provision. As I said to Senator Brian Hayes, it would be better to pursue this legitimate issue through examining the Documentary Evidence Act. I will ask my officials to pursue this matter also.
In respect of this legislation, my advice is that something is not an authentic document in electronic form. I understand there are disclosures on websites in other jurisdictions. Serious issues surround this matter as there can be certain errors when moving towards an electronic mode of conduct.
We are opposing this amendment because we want certainty but I suggest to the Senator that there are other ways we can examine the matter. We will be glad to share any information that emerges through our own investigations in this area.
I must put the last three lines of section 14 on the record of the house: "A comma immediately before a reference to a year and a comma immediately after such a reference that is not required for the purpose of punctuation may be omitted". I am referring to the ludicrous nature of law as much as anything else and am not making fun of anyone. I appreciate that this provision is significant but I could not resist saying something.
I move amendment No. 32:
In page 9, subsection (1), line 28, to delete "on" and substitute "following".
I have been reliably informed of an important principle in law, which states that ignorance of the law is no defence. One cannot use in court the fact that one has no knowledge of the law as a defence against a charge. I will read the current drafting of section 15(1) for the attention of Senators: "The date of the passing of an Act of the Oireachtas is the date of the day on which the Bill for the Act is signed by the President." This means an Act has automatic application once it is signed by the President. The principle that ignorance of the law is no defence is a core principle in our democracy. This amendment proposes that the word "on" be replaced with "following" so that the date of the passing of an Act of the Oireachtas is the date of the day following which the Bill for the Act is signed by the President. This will at least allow people time to have some knowledge of the legislation in question. As currently drafted, the provision suggests that one must have automatic knowledge of the legislation when the President signs it.
If accepted, this amendment would result in different rules applying for those Acts passed before and after the enactment of this Bill. In addition, difficulties would arise where a Bill, once passed, could not become operative until the commencement of the following day. This would be particularly problematic in terms of emergency legislation. The only theoretical difficulty with commencing on the same day is that, technically, this could create retrospective criminal legislation if not properly drafted by the Office of the Chief Parliamentary Counsel. However, the latter is well aware of this possibility and drafts accordingly.
The current arrangement in regard to the commencement of legislation has been in place since 1889. Changing it will cause confusion as between future and existing legislation. The position is that legislation which is signed on a Tuesday, for example, applies from midnight on Monday night. That is the way the system works. Senators are aware that commencement dates may also be used and are used quite regularly. I hope the Government's position is clear on this.
This is a technical amendment. The final phrase in this paragraph, "whose adoption is recognised by virtue of the law for the time being in force in the State" can logically only refer to a child adopted outside the State. Adoptions under our Adoption Acts are automatically recognised by the State. This amendment ensures that the final phrase refers only to foreign adoptions recognised by the State.
This is a drafting change to improve clarity so as to ensure the provision is interpreted in such a way that the words "except in so far as the contrary intention appears in" relates to what is proposed to be provided in both paragraphs (a) and (b) rather than just paragraph (a).
It is a great pity that where postal services are described, no attempt was made to include electronic postal services. I genuinely perceive that we are reliving the Gutenberg experience whereby modern technology is being resisted because people do not believe it can do the job as effectively old snail mail. We must move on. If the Judiciary will not lead on this, the Oireachtas must drive forward in promoting the benefits of electronic communications. The risk of untraceable errors is probably greater in paper documents than in electronic documents. Fears regarding security and the uncertainty of people of my generation and older are issues on which we must give a lead.
I wish to add to Senator Ryan's comments and it is an issue about which I spoke earlier. Given the Minister of State's commitment to the promotion of modern means of communications it is surprising that he has not taken this opportunity to include everything that brings us into the 21st century. It is a shame that electronics means of communication have been almost excluded from this Bill because they represent the way of the future. In less than five years' time, it will be recognised how out of date the legislation is in this regard.
I will not comment on the Minister of State's last few remarks. We will leave them to history. I have concerns on subsection (2)(a) which states, "a person appointed under the former enactment shall continue to act for the remainder of the period for which the person was appointed as if appointed under the new enactment". I am thinking of the Government's proposal to restructure the Higher Education Authority, in which an enactment will repeal another enactment and substitute other provisions. Does this mean that the Government cannot replace the current members of the Higher Education Authority, who have been appointed under one enactment, by the group it wants to appoint under the new enactment? I am not trying to waste time but this crossed my mind when I read the Bill. Where Government bodies are appointed but the Government changes the law, as will be done in the case of the Higher Education Authority, what happens to the existing appointees?
Earlier I referred to section 4 which states ". . . unless the contrary intention appears . . .". This legislation and language exists to provide certainty and continuity with regard to other legislation. Section 4 specifically addresses any concerns Senator Ryan may have.
Maybe section 4 will clarify this but section 27(1) states: "Where an enactment is repealed, the repeal does not...affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment...". That is a sweeping provision. I accept that section 4 may help this and I may be mistaken in that I did not figure it out. I defy anybody to understand section 4 on a third or fourth reading, not to mention a first. I wonder what it means. Is it a saving section in case another event does not transpire?
This section was inserted on Committee Stage in the Dáil. Acts of the European Community and European Union, normally directives and regulations but also the treaties of the European Community, are often referred to in Acts of the Oireachtas and statutory instruments. From time to time, these regulations and directives are revoked and made again with or without modification. The question arises as to what effect a revocation has on references in our Acts and statutory instruments to these European references.
It was hoped that the section currently in the Bill as passed by the Dáil would address this issue. However, most references are to directives and the majority of these are given effect by ministerial regulation made under the European Communities Act 1972. The regulation making powers in that Act are contained in section 3. In its application to European directives, it is limited to giving effect to the directive and "...may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations...".
If replacing a directive makes material modifications, as many do, to what had been provided by the earlier directive and the earlier directive had been augmented by regulations made under the 1972 Act, those ministerial regulations may not be capable of being kept alive simply by means of the device provided for by section 28 of the Bill. The scope of the regulatory power that the Minister concerned can exercise to give effect to the new directive could have increased or decreased in comparison with the corresponding power that was exercised to give effect to earlier directives. On that basis, it is better to address this issue on a case-by-case basis, rather than provide generally for it in the Interpretation Act. If there is a cross-reference in another Act to a Council directive, we want it to refer to the new Act. As we implement directives by ministerial regulations, we have to implement them fully.
If I interpret the reply correctly, it means that re-enactment will be decided on a case-by-case basis. Is that what is being said? If that is the case, it would presumably clog up a lot of parliamentary time because it could not be done by means of statutory instrument.
It is not the intent, but the effect is to marginalise the role of the Oireachtas in dealing with a lot of European legislation. I do not want to say more than we should return to it. I suggest that, if we had a further ten minutes, we would satisfactorily complete the Bill without rancour.
The purpose of my amendment was to improve the Schedule. I have already made the point I wish to make in a shorter manner than I intended. The Bill would be improved if we were able to ensure that, in future, we use electronic communications to reach a wider audience. I cannot express this better than Senator Ryan. It is somewhat similar to not recognising the change from handwriting to type and printing. It is akin to not recognising that electronic means of communication now exist. The generation following me do not write letters. They use text or e-mail. We have not stepped into the 21st century and this is an opportunity to do so.
I fully support Senator Quinn. In addition, one of the objectives of the legislation is to tidy the existing Statute Book. The real problem for practitioners is that the Government has not yet published a revised Statute Book despite its intention to do so. Will the Minister for State include in his reply details on the current timeframe for publication of a revised Statute Book? It is of huge importance to practitioners. In a previous amendment I tabled, which was not accepted, I proposed that a set of revised statutes would be published by the Minister and his Department at three-year intervals. It was ruled out of order on the basis of cost.
With regard to Senator Quinn's comments, it is a matter for each House of the Oireachtas to make its own rules and standing orders. That is the position. I will return to Senator Brian Hayes with precise information on the issue of a revised Statute Book.
I wish to ask a couple of questions on the Schedule. I agree with my two colleagues but will not take up time by repeating what they stated. A definition of "Northern Ireland" is not among the definitions, although a definition of "Great Britain" is included. The definition of an "ordinance map" is a map made under the powers conferred by the Survey (Ireland) Acts 1825 to 1870. Is that the most recent legislation under which ordinance survey maps are made or is there some uniqueness about this term that applies only to those maps? I was surprised by the antiquity of the reference.