Maria Byrne (Fine Gael)
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The Minister of State, Deputy Higgins, is very welcome to the House. I remind Senators before we commence that Senators may speak only once on Report Stage, except for the proposer of the amendment, who may reply to the discussion on the amendment. Each amendment must also be seconded on Report Stage.

Amendment No. 1 is in the name of Senators Boyhan and Craughwell and arises out of committee proceedings. Amendments Nos. 1 and 2 are related. Amendment No. 1 forms a composite proposal with amendment No. 2. Amendments Nos. 1 and 2 may be discussed together by agreement. Is that agreed? Agreed.

Victor Boyhan (Independent)
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I move amendment No. 1:

In page 9, to delete lines 10 to 15.

Gerard Craughwell (Independent)
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I second the amendment.

Victor Boyhan (Independent)
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As agreed, I will speak on amendments Nos. 1 and 2 together. I thank the Minister of State and the officials from the Law Reform Commission who are with us again today. We have had engagements with the Minister of State since we last spoke and I thank her office and staff for that. These have been meaningful and practical and we should reach some sort of reasonable compromise.

This matter we are dealing with today is complex. I have learned an awful lot about it in the past two weeks. It is important, therefore, that we give the Bill time and consideration. The principal purpose of the Statute Law Revision Bill is to repeal the spent and obsolete secondary instruments enacted on or after 1 January 1821 and before 1 January 1861.That gives some measure of the complexities.

I know that reviewing the Bill is a standard annual practice. I suggested that we might look at this. There was an issue around repealing the Bill. The question was whether we would put revocations into Schedule 2. This one would be one of those.

The process leading to this Bill involved a review carried out by the Law Reform Commission of more than 40,000 secondary instruments - that is a considerable amount of work and I acknowledge the amount of work the Minister of State has done - to ascertain if they were obsolete or were to be repealed or retained. That is where the Minister of State must rely on external professional advice and her Department officials. The 3,367 instruments that will be repealed by this Bill are all listed in Schedule 2. It is proposed to have five instruments that will be retained or listed in Schedule 1. I was proposing to reduce that to four instruments, as opposed to five, as I set out clearly in the Seanad last week. I would take away the requirement for the deletion of the 1685 Proclamation. That is complex and I will touch on it briefly.

I acknowledge the work done by Mr. Michael Merrigan of the Genealogical Society of Ireland. He has been instrumental in raising this issue and I am very much a conduit. I see my role in the Seanad as bringing external issues of concern into this House and give them some sort of airing. That is my function today.

The proclamation deals with authorising the Ulster King of Arms to prevent the improper use of arms, style of esquire or gentleman, etc. The powers of this 1685 Proclamation cannot be assigned to the Genealogical Office for the following reasons. The 1685 Proclamation is based on the royal prerogative that has not been inherited by the State. In the Supreme Court, the Byrne v. Ireland, 1972 Irish Reports, IR, 241, case established that the State did not inherit the royal prerogative.

The 1685 Proclamation provided a regulatory authority for an individual who received a personal royal warrant of appointment from the King to act as an officer of the royal household, and that individual operated as a corporation sole, using the appellation of "Ulster King of Arms". The application for this 1685 Proclamation within the State could not have survived the enactment of the Executive Authority (External Relations) Act 1936 without the express consent upon request by the Government of the Irish Free State up to 1937, Bunreacht na hÉireann, and Ireland between 1937 and 1949, Republic of Ireland Act 1948.

The Ulster King of Arms operated as a crown officer of the State between 1922 and 1936 for, and on behalf of, the King of Ireland. Following the enactment of the 1936 Act, this operation within the State was legally anomalous, acting after 1936 as a crown officer for or on the behalf of the King of the United Kingdom, because the Irish Government made no request to the monarchy for such services to be provided by an officer of the royal household within the State. This effectively removed the authority and application of the 1685 Proclamation within the State.

The retention of the 1685 Proclamation in the Statute Law Revision Act 2015 was argued by some to be an error as the authority for this proclamation was based on the royal prerogative, which the Supreme Court in Byrne v.Ireland, 1972 IR 241, established that the State did not inherit and, therefore, it was non-existent in the State in 2015.

The argument that the Genealogical Office is the lawful successor in the State to the corporation sole known as the Ulster King of Arms is contrary to the legal opinions expressed by a number of Attorneys General, upon which Ministers have advised both Houses of the Oireachtas over the past three decades. The argument that the Genealogical Office is the lawful successor of the corporation sole known as the Ulster King of Arms is without foundation as the necessary documentation explicitly providing for such does not exist to date.

The argument that the 1685 Proclamation and the administrative orders that facilitated the transfer of the contents of the office vacated by the Ulster King of Arms to the State, the National Library of Ireland, in 1943 are foundational documents for the Genealogical Office is without any basis in law and has never been supported by any of the legal opinions expressed by Attorneys General. The legal authority for the State's heraldic services is found in sections 12 and 13 of the National Cultural Institutions Act 1997. I referred to this in some detail in my most recent contribution.

The retention of the 1685 Proclamation, an authority based on a royal prerogative, in the Irish Statute Book is contrary to the expressed purpose of the statute law revision process whereby legislative and regulatory authority would be sourced in post-independence legislation. The intent and purpose of the 1685 Proclamation and its retention in the Irish Statute Book is not compatible with the equality provisions of Bunreacht na hÉireann or the Equal Status Acts. Any additional regulatory powers or functions that may, from time to time, be required by the board of the National Library of Ireland for the delivery of heraldic services in accordance with sections 12 and 13 of the National Cultural Institutions Act 1997 can be requested under section 7 of the Act. The Minister of State would be familiar with that.

I have set out the case. I am a conduit bringing this message and the Minister of State may have different views. I know the Minister of State has given the matter further reflection. Having read all this information into the record, I can say the situation is extremely complex and needs further investigation. There are genealogical organisations within the State. There is the Office of the Chief Herald of Ireland. There is, of course, the Law Reform Commission, which does extensive work in this area. There is possibly a role for the Attorney General to look at this yet again, given the issue has been on the desk of previous Attorneys General. We need to get this right. We in the Republic can talk about titles such as the "Ulster King of Arms". There are always going to be a sensitive issues around words, language and symbolism, and we have to get it right. I ask the Minister of State to consider deferring this matter or seeking further clarification on the points raised. Clearly, there are strongly held views outside this House. People have tuned in today. It is important that we have a response on the record. Having considered all the matters since we last spoke, I would be interested to hear the Minister of State's response. I again thank her and her officials for engaging on this matter.

Emer Higgins (Dublin Mid West, Fine Gael)
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I thank the Senator not just for tabling these amendments but for engaging with us so collaboratively over the past week. As I stated on Committee Stage, both my Department and the Law Reform Commission believe that it is legally justifiable to include the 1685 order on the list for retention. However, we acknowledge the concerns that were raised in the House last week and as a result, and on foot of discussions in this House, officials in my Department have engaged with the Genealogical Society of Ireland to get a greater understanding of those concerns. During the public consultations that were carried out on two separate occasions, most recently in 2022, the Office of the Chief Herald of Ireland stated that it relied on the 1685 order and that this order had never lapsed and, therefore, needed to be retained. Following our discussions on Committee Stage last week, the Law Reform Commission has now initiated further research and has sought to engage with the Office of the Chief Herald of Ireland to investigate the matter further and to reconfirm its position on the order. The Office of the Chief Herald of Ireland is the statutory body responsible for this area and, therefore, I believe it is appropriate to go back to it with the concerns that have been raised and to seek legal certainty regarding the potential impact of revoking an order that it states it specifically relies on.

To reiterate, no objections were raised in respect of any of the proposed retentions or revocations during the public consultations in 2015 and 2022. For these reasons, I am suggesting that this issue be looked at in detail for possible consideration in the next statute law revision Bill, research for which is due to be completed by the end of this year. This will give the Law Reform Commission sufficient time to complete its research.It will also give the opportunity to obtain legal certainty regarding the order without posing any undue delay to the passage of this Bill and the important work of ensuring that the vast range of obsolete instruments are removed from the Irish Statute Book.

As the Senator noted, this is an extremely complex area and further investigation may well be warranted. On foot of the concerns raised by the Senator, and that have been raised with him, our position is that we will endeavour to look at those.

Victor Boyhan (Independent)
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As the Minister of State said, we have had meaningful discussions about this. I do not want to delay the Bill - it would not be appropriate as a lot of work has been done - but the natural follow-on is for it to go to Dáil Éireann. This Bill was initiated in Seanad Éireann which is more unusual. Given there is a body of work to be done, may I respectfully suggest to the Minister of State that she should not be in too much of a rush to bring the Bill to Dáil Éireann given the number of outstanding issues and the confirmation that the Law Reform Commission will re-examine aspects of it? That will take some time. I want to acknowledge that. It is a very practical and helpful gesture on the part of the Minister of State and her Department.

I note the suggestion that the order will be considered in the next iteration of the Statute Law Revision Bill. I understand the preparation for that Bill will happen in the autumn, so the wheels will start moving. I understand, although I am open to correction, that this matter will be looked at again as part of that and that if a change is necessary, it will come back to us at some point. We do not want to delay the legislation. The Minister of State made a valid point in that regard and I am happy to support the Bill. She mentioned legal certainty. That is what we all seek. We do not have full legal certainty, or there is some doubt over it. That, again, is a strong argument for this matter to be looked into.

The Minister of State referred to one of the two public consultations. I note there may not have been as much engagement as there could or should have been but this is a very specialist area. When people talk about something that goes back as far as this they do not necessarily see its relevance.

If I picked it up correctly, the Minister of State indicated that the herald’s office or the National Library of Ireland made the case that it relies on this order. Nowhere have we seen that case set out in writing. The Minister of State has taken that advice from her officials and I accept that she needs to do that.

A body of work remains to be done. The Law Reform Commission has given the Minister of State a commitment that it will look at this, which is really important, and it will be dealt with in the next Statute Law Revision Bill in the autumn. Based on that understanding and the good engagement with the Minister of State and her Department, I am happy to withdraw the two amendments.

Maria Byrne (Fine Gael)
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When is it proposed to take Final Stage.

Garret Ahearn (Fine Gael)
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Now.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed

Victor Boyhan (Independent)
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I again thank the Minister of State and her officials. As we start a new term in the Seanad and Dáil, a lesson in politics is that there is much to be gained from practical and respectful engagement with Ministers. That is the way to go. This debate demonstrates again that, working together pragmatically, we can achieve collectively what we set out to do.