Seanad Éireann - Volume 186 - 14 February, 2007

Statute Law Revision Bill 2007: Committee Stage.

SECTION 1.

Question proposed: “That section 1 stand part of the Bill.”

  Mr. Ryan: Is there a precedent for this sort of legislation? Is language such as “by virtue of its antiquity and having been granted or otherwise made before or during the development of the parliamentary system” normal in other jurisdictions, or is it something entirely new and innovative? Although there are no amendments to the Bill, I am curious and the Oireachtas ought to understand what it is doing. I want to understand what I am doing, at least.

  Mr. T. Kitt: To answer the Senator’s question, it is new and innovative. It was generally welcomed here on the last occasion. I asked my officials to study the various pieces of legislation that were mentioned by Members and we have explained in the circulated list why some measures were retained and others repealed. I hope the list will be of some help to Members.

  Ms O’Rourke: The dossier is very helpful.

  Dr. Mansergh: I do not think this is the first such Bill the House has dealt with.

  Mr. B. Hayes: No. There have been two.

  Dr. Mansergh: We have considered a couple at least.

  Mr. T. Kitt: I brought the last such Bill through the House. The process is innovative in that sense.

  Dr. Mansergh: On a point of information, at what stage in the debate will we discuss the particular statutes?

  Mr. T. Kitt: On the Schedule.

Question put and agreed to.

SECTION 2.

Question proposed: “That section 2 stand part of the Bill.”

  Mr. B. Hayes: I hope I am not encroaching on the point just referred to by Senator Mansergh. We are giving clear and express power to put redundant legislation to one side before 6 December 2002, on two specific lists. One is a list of measures to be retained, and we are clear about that. The very last mention of a statute was the reference in the last Schedule to the 1922 [182] Irish Free State Constitution. I noticed it after making my contribution on Second Stage. The Minister may wish to wait until we get to that section before informing the House. This Act, in effect, brought in what some of us might describe as a much more liberal and tolerant Constitution in 1922 than ever occurred in 1937. I had to get a political dig in there. How is it possible that we are repealing it? I presume, given our dominion status at the time, it would have had to be recognised at Westminster. Why is that Act the last one referred to in the Schedule to the Bill?

  Dr. Mansergh: My understanding of the history is that the Free State Constitution was enacted both in Westminster and Dáil Éireann. The point is that technically we only became independent in the full sovereign sense on 6 December 1922, although there are qualifications about this also, whereas the British Act would have been passed before that date, and, therefore would have had force in this jurisdiction before that date, given that, in international law, Britain was the sovereign power up to 6 December 1922. However, it was also passed when we declared ourselves sovereign.

I do not know what happened when the Constitution was enacted in 1937 — it probably involved the repeal of the Free State Constitution. One could say it is probably a fairly redundant declaration of sovereignty. The debate at that time concerned whether our sovereignty or the Constitution depended on some British Act. Even the Senator’s political ancestors in Cumann na nGaedheal would have seen it as primarily deriving from what was enacted in Dáil Éireann rather than what was enacted in the Houses of Parliament across the water.

  Mr. B. Hayes: Of course. That is the point.

  Senator Dardis: I thank Senator Mansergh for his expertise.

  Mr. T. Kitt: I thank Senator Mansergh for his clarification. The 1922 Act bringing into force the Free State Constitution is a matter of UK law. This Act is obsolete following the enactment of the 1937 Constitution, which also repealed the Irish Act that enacted the Free State Constitution. Therefore, the Act is suitable for repeal. We can deal with these matters towards the end of the debate.

  Mr. B. Hayes: It is worth pointing out that this lacuna has existed since the enactment of Bunreacht na hÉireann in 1938, which effectively brought to an end the 1922 Free State Constitution. The British have had this on their Statute Book since 1922. There must be similar examples. I raised the constitutional issue because it was the only Act cited in the Schedule which referred to a constitution. The vast majority of the other Acts related to either royal prerogatives or ordnance, charter or similar documents.

It is interesting to note that we are repealing an Act the British have not repealed, even though [183] we effectively repealed the 1922 Free State Constitution in 1938.

  Dr. Mansergh: With respect to Senator Brian Hayes, we are only repealing it as it has force in this jurisdiction. For all I know, it may still be on the British Statute Book. It is not within our power to repeal that.

  Acting Chairman: We will deal with our legislation and leave it to Westminster to deal with British legislation.

  Mr. Ryan: Perhaps inappropriately, I wish to mention that a distinguished Member of the British House of Commons is present in the Visitors Gallery. It is appropriate he is present, given the debate we are dealing with and because he is a great friend of Ireland.

  Dr. Mansergh: This is the sort of discussion he loves.

  Acting Chairman: We will resist the temptation to introduce him to the debate.

  Mr. Ryan: With a Member of the House of Commons, it seems the further back a debate goes, the more he likes it.

I am intrigued by the unpublished private Acts referred to in the memorandum and covered by section 2(2)(b). These Acts sound like something from a novel written before the time of D.H. Lawrence. What is meant by “unpublished private Acts”? I do not want to be awkward. There are private Acts which refer to people being divorced and similar issues. However, it is as if there is a range of issues about which we do not know.

  Dr. Mansergh: Where does the Bill refer to unpublished Acts?

  Mr. Ryan: They are referred to in the explanatory memorandum.

  Acting Chairman: We should deal with the Bill.

  Mr. Ryan: The memorandum states: “The reference to Acts” enacted as “private acts is intended to cover unpublished private Acts”. While I do not wish to be awkward, I would like to know precisely what we are discussing. I am also aware that a group of eminent and able lawyers, who have done all the work on this legislation, are present in the Visitors Gallery. They deserve enormous credit for the struggle to bring us into the 21st century — perhaps we have only got to the 19th century but we are getting there.

  Ms O’Rourke: As I understand it, there were published private Acts and unpublished private Acts. We dealt last week with one such Act concerning the Wilson’s Hospital School in Multyfarnham. The school avidly did not want the Act repealed and has been showering thanks on [184] the Minister of State, myself and the world in general because it was not repealed. Its trust status is secured.

  Mr. Ryan: They did not get as far as Cork, but that is alright.

  Acting Chairman: This is getting surreal, Senator Ryan.

  Mr. Ryan: I am sorry. Legislation ought to be accessible. I want to know what is meant by unpublished private Acts. How do we know how many there are? How do we know they exist if they are unpublished? That is all I want to know.

  Mr. T. Kitt: I understand they were passed by the Parliament but not sent to the royal publisher at the time. I will provide Members with some interesting facts in this regard. The volume of old legislation is so great that the only way to approach the question of statute law revision is to proceed in stages. We have already dealt with some of the legislation in an earlier stage of our discussions. Repeal of the pre-1922 public Acts is the obvious first stage. Other Acts will be dealt with in later stages, as will the repeal of the Acts in Schedule 1 — the white list.

The most interesting figure I want to share with the House is that there are more than 33,000 local, personal and private statutes which must be assessed, in addition to the 26,730 public and general statutes which have already been assessed. It was thought appropriate to preserve these statutes as an entire category at this time. They will be assessed at a future stage and will be the subject of further statute law revision measures. Also, over 3,000 statutes passed since independence will need to be examined. Local, personal and private statutes relate to particular people, places and institutions and do not affect the community generally. Revision of these laws is less urgent. That is our position on the legislation.

  Ms O’Rourke: How many did not get published?

  Mr. T. Kitt: I will have to find that figure for the Senator.

  Dr. Mansergh: By way of clarification, at a certain stage in parliamentary history, divorce proceedings happened by way of a private Bill in Parliament. I think it more than likely, except where notorious persons were concerned, whose identity might be published in the tabloids of the day——

  Ms O’Rourke: The Hello magazine of the day.

  Dr. Mansergh: ——that these would not have been published. It raises the interesting question of whether, if one repeals, say, a private divorce Bill from 1830 to 1834, one would have any effect on the subsequent succession.

[185]   Mr. T. Kitt: We do not know how many such Acts were unpublished. Much work has been done. Senator Ryan rightly referred to those who have undertaken commendable research on the legislation.

  Ms O’Rourke: It will be a separate project.

  Mr. B. Hayes: Senator Mansergh is correct. Even under the Free State Constitution from 1922 to 1937, each divorce had to involve a petition to the Oireachtas.

  Dr. Mansergh: Divorce was ended by Cumann na nGaedheal in the 1920s, long before 1937.

  Mr. B. Hayes: We can be blamed for many things but not that. My understanding is that every application for divorce had to be accepted by the then President of the Executive Council.

My question relates to section 2(3) in particular where reference is made to the Bill Of Rights 1688. The approach taken by the Minister and his colleagues is to put to one side and to repeal sections or parts of the Bill of Rights, but to leave other parts in place. Will the Minister of State inform the House why this approach is being taken as there are two reasons one would think it should be otherwise. First, one would think that if a Bill of Rights is being repealed, it should be repealed in toto. Second — Senator Mansergh made this point in the course of Second Stage — given the connection of the Bill of Rights 1688 to one particular tradition on this island, would it not be more sensible to approach this from the perspective of repealing it in toto or section by section? What is the rationale for the proposed way of doing it?

  Ms O’Rourke: We waxed lyrical about the Bill of Rights 1688 last week. As I understand it, part of the Bill refers to the impunity granted to people going to and from Parliament, allowing them travel even if intoxicated or whatever, and there is a fear that parts of the Bill are still needed today. I picked that up and thought it very interesting. I remember a particular case some time ago when people going home from the Houses pleaded they were on parliamentary business and should be able to travel with impunity.

  Acting Chairman: That saved them from the Tower, no doubt.

  Dr. Mansergh: I support the approach taken by——

  Mr. Ryan: Senator Mansergh will lose his right to bear arms.

  Dr. Mansergh: These are my arms.

  Mr. Ryan: Senator Mansergh is the only Member of the House who would be entitled to bear arms.

[186]   Dr. Mansergh: The proposal is appropriate for more than one reason. It is obviously correct that sectarian aspects of fundamental constitutional legislation be repealed. Senator Brian Hayes said the Bill of Rights relates to one tradition. It does mainly, but not exclusively. We would do well to compare notes with our American cousins in this regard. Both of us fought and won struggles for independence.

The Bill of Rights is one of the foundations of representative Government. There is a sharp distinction to be drawn between representative and democratic Government. As we know, in the 17th century, representative Government was confined to small elites. Nonetheless, what came out of that led eventually towards democratic Government. As individuals we have many ancestors and, arguably, among these are those who fought on both sides at the Battle of the Boyne.

  Acting Chairman: That is going back a bit.

  Dr. Mansergh: To the best of my knowledge Magna Carta and the Bill of Rights are special. There is a kind of constitutional shrine in the Library of Congress which goes back to Magna Carta. Obviously, the highlights of this shrine are the Declaration of Independence and the American Constitution.

The Bill of Rights should be treated in an entirely different manner to the other pieces of legislation under discussion, because it is one of the foundation stones to our legislation. We must think about the future as well as the past and in this context we are thinking of both. I would be inclined to stay the hand in the manner proposed by the Minister.

  Mr. Ryan: The explanatory memorandum states:

Subsection (3) is a partial repeal of the Bill of Rights. While the main provisions of the Bill of Rights are proposed to be retained for the time being,——

  Ms O’Rourke: That is the one about travelling with impunity.

  Mr. Ryan: No. The reference here is to the exclusive right of Protestants to bear arms. That is the reason I pointed out that if we do not repeal it, Senator Mansergh is the only one of the Members here who would have that right. I would feel it was unfair if Senator Mansergh could bear arms and I could not. I would really feel threatened.

  Dr. Mansergh: We are repealing that as far as I know.

  Ms O’Rourke: His arms have gone rusty.

  Mr. Ryan: May I make my point. The year 1688 is one year before 1689, which was a significant year. Perhaps we should reconsider the decision to repeal some of these provisions. “For the time [187] being” is mentioned in the Bill. I accept we have constitutional guarantees that are probably of greater significance, but I am not sure, given the different traditions on this island and the significance of the Bill of Rights to one tradition, that we should rush into a decision to repeal something which perhaps has far more significance to others on the island than to anybody in the House.

  Mr. T. Kitt: Senators have touched on the relevant reasons for doing what we are doing. Subsection (3) has the effect of repealing a part of the Bill of Rights 1688. This is the only partial appeal contained in the Bill. It arises because some provisions of the Bill of Rights may be of continuing legal relevance and, therefore, the entire Bill cannot be repealed. However, as certain elements of the Bill of Rights discriminate as between different religions, these elements are being removed. Senator Ryan is correct that it gets rid of the right of Protestants to bear arms. The Act deals with the rights of subjects and, in particular, makes provision — this will be of interest to Members — for parliamentary privilege.

  Ms O’Rourke: I said that.

  Mr. T. Kitt: The Act is not suitable for repeal at this time, primarily because it may be relevant to the law regarding parliamentary privilege. Therefore, it has a relevance in that sense.

  Ms O’Rourke: Does that mean we can travel with impunity?

Question put and agreed to.

SECTION 3.

Question proposed: “That section 3 stand part of the Bill.”

  Mr. B. Hayes: Section 3(3) states:

The inclusion of a statute in Schedule 2 shall not be taken as evidence that the statute, or any provision of it, was of full force and effect immediately before the passing of this Act.

Does this suggest, even if it had been repealed and we were not aware of it through research, that we are providing for having got it wrong? I do not understand the reason for this subsection.

  Dr. Mansergh: There is an accepted legal term, “desuetude”, which means that something has fallen out of use. Many of these Acts of Parliament clearly have no relevance at the present time and have long since ceased to be enforced. I suspect the saving clause makes in section 3(3) makes sense in that it does not assume that Acts repealed are in full force or in any force whatsoever.

  Mr. Ryan: How does the legal, judicial and parliamentary system decide that legislation has [188] fallen out of full force and effect? I am not trying to be troublesome, but I was of the impression that if laws existed and had been enacted, they were the law. That may have been in practice, but is there a way in which laws fall out of use?

  Dr. Mansergh: Surely it is when courts cease to enforce them.

  Mr. T. Kitt: Perhaps I might take Senators through this section and try to clear up this matter.

Section 3(1) provides for the setting out in Schedule 2 of those statutes specifically repealed by the Bill. Some 3,188 statutes listed in the Bill for appeal have been found to be unnecessary or to have ceased to be in force. That list does not include those Acts that clearly never applied to Ireland. The section follows the terms of the Statute Law Revision (Pre-Union Irish Statutes) Act 1962, in that it does not refer to Acts of specific parliaments.

Subsection (2) is designed to make clear that the omission of an Act from Schedule 2 does not preserve it in force for any purpose, except where, as provided for in subsection (2)(c), the Act has been already repealed but saving transitional or continuing provisions have been made in regard thereto. Subsection (3) is designed to make clear that the inclusion of an Act in Schedule 2 should not be taken to mean it is currently in force or has any effect. For example, some of the Acts in Schedule 2, while never repealed, may have been of questionable constitutional application to Ireland. Nonetheless, they are being included in the list of Acts for repeal for the sake of legal certainty.

The Long Title makes clear that the Bill, like previous Statute Law Revision Acts, addresses itself to two categories of Acts, those that have ceased to have effect but never been formally repealed, and those that are unnecessary although technically still in force. Many of the 3,188 Acts listed in Schedule 2 fall within the first category and are being formally repealed by the Bill for the sake of certainty and clarity, even though they have ceased to have any practical effect.

Regarding Senator Brian Hayes’s point, we do not have copies of all the old Acts. As Senator Mansergh said, if we miss something and it is lost to history, it is gone. That is my best layman’s response to those valid points.

  Acting Chairman: Is Senator Ryan suggesting the Liberty of Meath be restored? I see it is here declared void.

  Mr. B. Hayes: Are the Government and the Minister admitting that in the Schedule we are repealing Acts that may not have had any effect in this jurisdiction?

  Ms O’Rourke: We must do something with them. They must be declared obsolete and got rid of. I am sure many Acts were passed that were not of obvious importance.

[189]   Dr. Mansergh: As I suppose occasionally happens even today, there were probably some Acts that were never enforced, even from the outset.

  Mr. B. Hayes: They were either on the Statute Book or not.

  Mr. T. Kitt: In dealing with this legislation, we aimed at certainty with the white list and Schedules 1 and 2. There clearly will be various Acts that we will miss in such a situation, and if they are lost, they are gone. However, I remind Members that we will be conducting further work on this ongoing process.

  Mr. B. Hayes: I do not wish to detain the House on this matter. A great deal of credit is due to the research team in the Office of the Attorney General for this work.

  Dr. Mansergh: Hear, hear.

  Mr. Ryan: Hear, hear.

  Mr. B. Hayes: However, when it was made known that the process of statute law revision was under way, and a green flag was raised regarding a Bill in which some organisation, group or individual took an interest, was that statute put to one side? Was it decided to deal with it on another occasion or immediately? I am interested in the process, since after any group in the State had placed a question mark over any pre-1922 statute and it was put to one side, did the Government intend to deal with it all at some stage? Was there disagreement regarding the legislation until it appeared in this Schedule?

  Mr. T. Kitt: I am told that, after the consultation with the Taoiseach was launched, if anyone made a submission regarding legislation, it was set aside in Schedule 1.

  Ms O’Rourke: They will be attended to later, since there might well be a short clause or provision in an Act that is still relevant today.

Question put and agreed to.

SECTION 4.

Question proposed: “That section 4 stand part of the Bill.”

  Mr. Ryan: The significance of assigning Short Titles escapes me. The Bill’s basic thrust makes perfect sense; we are getting rid of a great deal of legislation. However, what is the legal or other significance of the decision to go through a great deal of arcane legislation and assign new Short Titles?

  Mr. T. Kitt: It is very simple. Section 4 assigns Short Titles to all public general Acts that are not being repealed but that do not currently have a Short Title. The section is based on section 1(1) of the Short Titles Act 1962. For the sake of con[190] sistency, we are giving a similar structure to the legislation with which we are dealing.

  Mr. B. Hayes: And for future ease of reference, I presume.

Question put and agreed to.

SECTION 5.

Question proposed: “That section 5 stand part of the Bill.”

  Mr. Ryan: I want to ask the dumb question why, particularly regarding the reference to the Bill of Rights. I do not believe the Government is about to deprive us of all our liberties, but constitutional evolution, albeit on the part of a foreign government, is of great significance. The evolution of rights in the English parliamentary system is part of the evolution of world democracy. I do not know why we must make specific reference. I will not even go into the Act passed in the first year of William and Mary’s reign, since it would be too difficult.

  Dr. Mansergh: I agree with Senator Ryan, but until quite recently the question of bills of rights was raised in this jurisdiction and Northern Ireland. I suppose the Bill refers to 1688 to distinguish it from bills of rights that we may establish in future.

  Mr. T. Kitt: Section 5 amends the Short Titles Act 1896, which provided Short Titles for a large number of English, British and United Kingdom statutes. The section will correct two unconventional Short Titles conferred by that Act, one being “1 Will. & Mary, Sess. 2. c. 2”. Senators can see what we are doing: we are obviously trying to use standardised terminology.

  Ms O’Rourke: It makes our next task easier.

Question put and agreed to.

SECTION 6.

Question proposed: “That section 6 stand part of the Bill.”

  Mr. Ryan: I know I sometimes test the Acting Chairman’s patience when I inquire into matters. Section 6(b)(i)(I) mentions “Estatuz del Eschekere”. Is that Middle English?

  Mr. T. Kitt: It is Latin.

  Mr. Ryan: That is not Latin.

  Mr. T. Kitt: That is what I am told.

  Mr. Ryan: I am absolutely certain it is not Latin.

  Mr. T. Kitt: I studied Latin, and I do not think it is Latin.

[191]   Ms O’Rourke: Deputy Tom Kitt may have studied it, but I taught it.

  Dr. Mansergh: It may be Spanish or Italian.

  Mr. B. Hayes: We need the Interpretation Act again.

  Mr. Ryan: I am not being awkward, but Members of the Oireachtas ought to know what they are passing, and I am curious about this. However, if we do not know, perhaps we should leave it.

  Acting Chairman: I do not think there are many Ks in Latin.

  Ms O’Rourke: It might be like Beowulf.

  Mr. Ryan: There were so many Ks in the sentence that I thought it was Basque.

  Mr. T. Kitt: It may be Norman French, but it is not Latin, which I studied. There is definitely no “Estatuz del” in Latin. I can get back to the Senator on the question.

  Mr. Ryan: I may be pedantic, but I am interested. I did not ask in order to be unhelpful, and I am not trying to catch out the Minister. I presume he has advisers. Like everyone else from our background, I noted the reference to Magna Carta in subsection (b)(iii)(I) and (b)(iii)(II). Is its significance purely to do with drafting?

  Ms O’Rourke: It was the first bill of rights.

  Dr. Mansergh: This is the Magna Carta of Edward I, whereas, as we know, the Magna Carta of history was that of King John in 1215.

  Mr. Ryan: Some of us do not know.

  Mr. T. Kitt: It is to standardise our references and terminology with the British ones.

  Mr. Ryan: The reference to “Statute de Conspiratoribus” has real echoes of Harry Potter.

  Acting Chairman: Senator Ryan has now got to the Latin.

  Mr. Ryan: This stuff is interesting.

Questin put and agreed to.

Section 7 agreed to.

SECTION 8.

Question proposed: “That section 8 stand part of the Bill.”

  Mr. B. Hayes: This section deals with evidence relating to the original statutes and, it is fair to say, many of those were lost in the fire in 1922. Could the Minister of State outline to the House how it was possible to verify the existence of [192] these documents and statutes referred to in the various Schedules? In the section there is reference to the calendars of documents relating to various periods as a means of verifying their existence, but that was clearly not the position in all such cases. How was he able to establish one from the other where there was no documentary evidence of that Act?

  Mr. Ryan: I have a succession of questions and I will not ask them altogether, partly because it might confuse me apart from anybody else. I like the delicate reference in the explanatory memorandum that the originals of many of these early statutes are either in London or were lost in the destruction in 1922. It makes one feel that there are two equal horrors — one is destruction and the other is being in London. We know what happened in 1922.

I do not dispute the principle that there must be some basis for all this ancient legislation. How is the Minister of State sure there are no conflicts between records of this early legislation in all of these sources? Have the experts searched and found or what? It seems that these are the records of 800 years done by people who had limited skills or access. What happens if there are conflicts?

  Dr. Mansergh: We should not underestimate Victorian legal, archival and historical scholarship.

  Mr. Ryan: I take Senator Mansergh’s word for it.

  Dr. Mansergh: If one goes next door to the National Library one will see shelf after shelf of these calendars of documents which were carefully copied out and edited. If one had the originals, they would be on a practically illegible scroll at this stage and probably in another language or interpreted. Sometimes the calendars of documents are written in the original Latin, but probably in a kind of modernised or standardised form. We simply must rely on the work they did then.

Having done a little research on different matters, my instinct is that while the losses in 1922 were terrible, a great many documents, especially Government and legal ones, would have been copied. The fact that documents were destroyed does not mean that there is not a copy of them somewhere else and of course there were copyists employed. Although I do not want to digress, for example, family history genealogists copied out extracts of documents such as wills and marriage contracts. Therefore, the net loss was somewhat less than is imagined. In any case, the majority of the work to make accessible to scholars all these vast calendars of documents which are involved in this legislation was done before 1922.

  Mr. T. Kitt: We have covered all of the issues. Section 8 formally enables certain early statutes that are being retained to be proved in court and [193] other legal proceedings by production of a copy of it as reproduced in certain official publications. This may also be done by the production of a copy from those official publications and by having a copy certified by the National Library of Ireland or such other libraries or archives as may be designated. This provision is necessary as many of the originals of these early statutes are either held, as Senator Ryan and others stated, in London or were lost with the destruction of the Public Record Office in Dublin in 1922.

The official publications referred to in this section include the Historic and Municipal Documents of Ireland, HMDI, the Calendar of Documents relating to Ireland, CDI, and the Public Record Office, PRO, volumes, and as Senator Mansergh stated, these are reliable sources. Such volumes, while officially published, were not all published by Her Majesty’s Stationery Office or the Stationery Office. As a result, the various Documentary Evidence Acts passed between 1845 and 1925 do not appear to apply to these publications. Subsections (1)(b) and (2) allow a procedure for proof of copy extracts from such volumes and subsection (3) permits specified institutions, in our case the National Library, to impose a charge for providing such copy extracts. The National Library was consulted in the drafting of this section and its views have been taken into account.

  Mr. B. Hayes: Section 8(2) states:

“[S]pecified institution” means the National Library of Ireland or such other library or archive as may be designated in writing by the Taoiseach under paragraph (b).

8 o’clock

This gives power to the Taoiseach to designate an institution as a body where information can be taken and that information can be regarded as factual information pertaining to any of these statutes. Why was the decision taken that the designation would come from the Department of the Taoiseach? Is it because the Bill comes from the Attorney General’s office?

  Mr. T. Kitt: Yes.

  Mr. B. Hayes: The libraries of Ireland fall within the remit of another Department. Why was the decision taken that designation would issue from the Department of the Taoiseach?

  Ms O’Rourke: They were within the remit of the then Department of Education in the time of former Minister, Gemma Hussey, and they were taken into the remit of the Department of the Taoiseach.

  Dr. Mansergh: The former leader of Senator Hayes’s party, Dr. Garret FitzGerald, as Taoiseach, took personal charge of introducing national archives legislation. I happen to know this owing to certain issues in which I was involved in 1992-93 to do with whether any refer[194] ence to discussions at Cabinet, even if they were about the Cork Milk Marketing Board, were allowed or disallowed as a result of the Hamilton judgment in the beef tribunal. The net point is that the national archives have been under the Department of the Taoiseach since the time of Dr. FitzGerald, if not earlier.

  Ms O’Rourke: I can throw light on that. Gemma went into a huff about it.

  Mr. Ryan: I do not want to delay the House. Both sections 8(1)(a)(i) and (ii), for instance, cover the same period. Is there some degree of certainty that there would be no conflict between the records in sections 8(1)(a)(i) and (ii)? While I have a number of other questions on other matters, that is my only question on this issue. Is there some certainty or what is the process if it turns out there are somewhat different records in both of those, which are now effectively the nearest thing to primary sources?

  Mr. T. Kitt: I understand they are simply two different publications. There would be some duplication between the two but, as I stated earlier, I am assured they are very reliable sources.

  Dr. Mansergh: I assume if one were repealing the Statutes of Kilkenny of 1366, which we probably have done already, and there were two or three versions, the repeal would be deemed to apply to all of them and not just one.

  Mr. B. Hayes: Will the Minister of State indicate roughly what percentage of the white list gives direct, corroborative evidence of the existence of the Act.

  Mr. T. Kitt: My officials tell me the figure is 100% in terms of the existence of the Act.

  Mr. Ryan: Is there any possibility of digitising these records? There is a provision, to come later, allowing for the imposition of charges and these are records of huge historical and legal significance. It seems a pity that such important and fundamental references would be based in one place when Google is about to digitise half of the books on Earth. I was merely wondering about this matter, at the risk of testing the Acting Chairman’s patience.

  Dr. Mansergh: I would have thought this is not a project to concern us, particularly if Acts of the English Parliament are in question. There is a dictionary of parliament which goes back to about 1385 which has short biographies of every member of parliament since that date. It is possible they intend to digitise their legislation but much of this is peripheral from our point of view. We already have the calendars to consult and it must be considered whether such a venture would be a good use of resources and something of pressing importance for historians. I have my doubts.

[195]   Mr. T. Kitt: In short, the question of digitisation is a matter for the National Library.

Question put and agreed to.

SECTION 9.

Question proposed: “That section 9 stand part of the Bill.”

  Mr. Ryan: Section 9(2)(b) states that “nothing in this Act shall be read as affecting section 11(16) of the Local Government Act 2001”. I probably could have looked for section 11(16) of the Local Government Act 2001 but I did not and I would love to know why, of the thousands of pieces of legislation passed in the past 80 years, this is mentioned.

  Ms O’Rourke: This section is concerned with portions of other Bills which may be of relevance that we must save. It is an important section because it concerns parts of a Bill which may be still relevant today. It is headed “savings”, which made me think the Department of Finance has been let loose on savings, but it has nothing to do with that and refers instead to saving portions of Bills that may be still relevant.

  Dr. Mansergh: Chains, charters and emblems.

  Ms O’Rourke: Senator Ryan wondered about the mention of the Local Government Act 2001 and I can only conclude that a portion of it must be still relevant.

  Mr. Mooney: I have been trying to follow this historical debate with as much interest as I can but, I confess, I sometimes lose track as there are so many Acts. In the context of section 9, can the Minister of State clarify the reference to the Government of Ireland Act 1920 not affecting Orders in Council, which I thought were British procedures? It is referred to in 4(a) and 4(b) refers to the repeal of the Irish Free State (Agreement) Act 1922. Subsections 4(a) and 4(b) refer to any part of these acts that are still in force. I am also curious as to the meaning of the references to section 11(16) of the Local Government Act 2001. Can the Minister of State clarify these matters?

  Dr. Mansergh: This is obviously something that did not occur to us when we were dealing with the constitutional parts of the Good Friday Agreement. Part of that agreement necessitated the repeal of the Government of Ireland Act 1920 by the UK Parliament but, I am afraid, it did not occur to me, nor to the Attorney General, that the Act still subsisted in some way on our Statute Book. It is almost certainly of only academic importance but if it was repealed across the water it should not be on our Statute Book.

  Mr. T. Kitt: Regarding section 9(2)(b) which states that “nothing in this Act shall be read as affecting section 11(16) of the Local Government [196] Act 2001”, this, as Members have said, ensures we preserve the ceremonial powers and functions of mayors in their offices.

  Ms O’Rourke: They have become important.

  Mr. B. Hayes: That is because the charters are very historic.

  Mr. T. Kitt: Regarding the question raised by Senator Mooney, specific additional provisions are also included to deal with issues that arose during the drafting process, especially the question of preserving any extant orders under the Government of Ireland Act 1920 and the Irish Free State (Agreement) Act 1922.

In the period during which the State moved towards independence transitional orders were put in place and we are retaining them.

  Ms O’Rourke: Can I ask about savings and parts of Acts it is felt must be retained because they are relevant? There must be a huge number of parts of Acts that are being retained because they are relevant today.

  Mr. B. Hayes: It is Schedule 1.

  Ms O’Rourke: Will the work to do away with these parts of Acts continue as modern life goes on and they become obsolete?

  Mr. B. Hayes: Following from what the Leader of the House just said, something has struck me since this process began. Schedule 1 refers to the Acts we are retaining and it categorises them in terms of various periods of history and Schedule 2 refers to the Acts we are repealing. Why was it necessary to state clearly in Schedule 1, parts 1 to 4, inclusive, the reason we are retaining these areas? If this is all about revision and repealing, why are we stating for the record something that is already in place? I understand the rationale behind citing the Acts we are repealing but in Schedule 1, parts 1 to 4, inclusive, the Minister of State has set out all of the Acts that are being retained. I know the question from the Leader of the House is more detailed and relates to the reason this is being done. Why did the Minister of State think it necessary to do this? Was it for the purpose of clarity, pointing out the Acts that are being retained and to which we will return in a few years’ time?

  Dr. Mansergh: In terms of providing clarity to judges it is important everything be stated explicitly, particularly when one is referring to Victorian legislation that has real relevance in many cases, for example, the Offences Against the Person Act 1861. Judges must be clear as to what statutes are still in force.

  Mr. Mooney: I would be grateful if the Minister of State could further clarify his comment on the ceremonial aspect of the Local Government Act 2001. I am assuming it relates to the debate generated at the time regarding boroughs and town [197] councils. A number of boroughs, Kilkenny and Sligo for example, insisted on retaining borough status. Does the reference in this regard arise on foot of the concession by the then Government?

What does the Minister of State mean by “ceremonial” in respect of the section of the Bill being retained? The word may apply to the robes of office aldermen use in certain of the city boroughs, including Dublin, Waterford, Cork, Galway and Limerick. To the best of my knowledge, the other boroughs, such as Sligo and Kilkenny, do not have ceremonial robes.

My final question relates to Senator Brian Hayes’s remarks on Schedule 1, to which I presume he will return. We are retaining a huge volume of statute law and I would be grateful for the guidance of the Chair on whether I can refer to one or two specific elements in Schedule 1.

  An Leas-Chathaoirleach: The Senator should await our consideration of Schedule 1.

  Mr. B. Hayes: Senator Mansergh asked a very straightforward question and posited the view that this Bill is to ensure legal clarity regarding the Acts subject to revision and the dates of their enactment. If one looks at Parts 3 and 4, one will note that the statutes therein are more recent than the others. I refer to the statutes of the United Kingdom of Great Britain and Ireland, dating from 1801 to 1922. It is not a question of their existence because they exist and are clear, and the period they cover is much more recent than the 12th, 13th or 14th centuries. It is important that the Minister of State outline why we are retaining them — I can understand it in terms of precedent in the courts — and why it is necessary to cite them in such a clear way in the course of Schedule 1.

  Mr. T. Kitt: On the broader issue, we are for the first time stating what legislation is in force in Ireland regarding the period in question. Over 1,300 Acts are involved and over time they will be replaced.

  Ms O’Rourke: Does the Minister of State mean they will be repealed?

  Mr. T. Kitt: They will be replaced. The Bill makes reference to those we are retaining and they will all have to be replaced.

On the Local Government Act 2001, Senator Mooney should note that we are retaining some powers because we are concerned we will not interfere with any of those in existence. I will have to get my officials to revert to him regarding the details of these powers. However, in general terms, we are proceeding so as not to interfere with what the existing legislation allows.

  Mr. B. Hayes: In the Statute Law Revision (Pre-1922) Act, which passed through the Houses some years ago and with which we were all involved, I believe there were two Schedules, one containing Acts that were retained and another containing those that were repealed. Were the [198] statutes referred to in Schedule 1 of the Bill before the House not picked up on the last occasion? Is that why we are addressing them in a clear legal sense now? Are we simply repeating what we did in respect of Schedule 1 the last time such legislation was before the House?

  Mr. T. Kitt: On the last occasion, we only dealt with repeals. This time we are proceeding differently by way of two Schedules.

  Ms O’Rourke: We are doing two parallel exercises, that is, repealing Acts and retaining those Parts of Acts that must be retained. There is surely another parallel exercise taking place in corridors and rooms to determine how we can repeal those sections of Acts we are trying to hold on to because they still have some relevance. Is this happening?

  Mr. T. Kitt: It is ongoing.

  Mr. B. Hayes: On Schedule 1, it could well be the case that an additional 100 to 300 statutes could be picked up that have not been picked up in the course of Schedule 1 on this occasion, thereby achieving conclusivity.

  Mr. T. Kitt: One hundred and sixty-seven Acts are being repealed by other Acts. There is obviously ongoing work taking place.

  Dr. Mansergh: On the laudable ambition to replace Acts, particularly Victorian legislation, there is probably an enormous legislative task involved if one is to re-enact the provisions required and modernise legislation that is still in force. I very much doubt that it could be done in half a year, a year or two years. Some of this will take considerable time.

Question put and agreed to.

Section 10 agreed to.

SCHEDULE 1.

Question proposed: “That Schedule 1 be Schedule 1 to the Bill.”

  Dr. Mansergh: I have a point on what I said during Second Stage, during which I questioned the appropriateness of retaining anti-Whiteboy legislation on the Statute Book. This particularly related to the counties of Cork and Tipperary. I am very grateful that the Office of the Attorney General has since written to the Minister for Justice, Equality and Law Reform passing on the views on the House on this matter. I am very impressed by the depth of knowledge of the research team and its prompt reaction to legitimate queries. It is in command of the information and we are very reliant on its assistance.

The Whiteboys were the first evidence of rural resistance to aspects of an entirely unjust system of land tenure, and they were, to a degree, the precursors of the United Irishmen, the Defenders [199] and later movements in the 19th century. The context in which they operated was entirely different from the modern one, in which we have proper democratic constitutional order and rule of law. In the 18th century, when the powers that be referred to “our glorious constitution”, they were referring to one that excluded at least 80% to 90% of the people of Ireland and deprived them of any number of basic human and civil rights, including at one period the right to land tenure if one were a Catholic.

Legislation of this kind is a blot on our Statute Book and I find it hard to believe we cannot rely on our own legislation to deal with various forms of street disorder. We should be dealing with such matters using contemporary legislation, not using legislation that would be repugnant to most people if they thought about it.

  Ms O’Rourke: The Whiteboys were not just endemic to Tipperary; they were quite prevalent in other areas also. I thank the Office of the Attorney General for writing to the Tánaiste and Minister for Justice, Equality and Law Reform to determine whether he can remove the legislation.

It is very interesting what the Minister of State said to Senator Mansergh about the Whiteboys and Molly Maguires, or whatever name was put on such groups at the time. They represented the early stirrings of a movement of people who were not prepared to put up with their circumstances for much longer. The 19th century saw the enactment of various land Acts, the espousal of the principles of fair rent, free sale and fixity of tenure. Then there were the attempts by the Conservatives to bury Home Rule by kindness and all of that. However, these were the first stirrings in terms of people not being willing to put up with their circumstances.

  Mr. B. Hayes: Senator Henry is not present, but she referred to a number of statutes in Schedule 1, such as the Lunacy Regulation (Ireland) Act 1871 and a number of others which encompassed very degrading references to either prisoners or persons with mental illness. The point was made by Senator Henry that a more useful way to resolve these rather Victorian and dated concepts in the law, since most of them still apply in terms of the application of law in this jurisdiction, would be the establishment of a new Bill to remove these offensive phrases and words. I sincerely thank the Minister of State and his team for providing Members on Second Stage with an excellent dossier——

  Ms O’Rourke: I agree; it is wonderful.

  Mr. B. Hayes: ——of each of the Acts referred to which produced a much more comprehensive synopsis of the Bill. I thank them sincerely for doing that and for giving the rationale why a particular Act should be retained. We either opt to repeal this legislation eventually or we introduce a new law.

[200]   Ms O’Rourke: Is this the lunatics one?

  Mr. B. Hayes: Yes, it is the Lunacy Regulation (Ireland) 1871. We either repeal all the legislation or we do it in one new Bill which attempts to rephrase some of the more offensive references contained within the legislation.

  Mr. Ryan: I do not want to hold up the business of the House, but I have a series of questions, perhaps because I am nosey and curious. I am not going to make an issue of this, but the idea that we should retain the Courts Act 1476 because it provides a statutory basis for the wearing of gowns by the Judiciary is absurd. It is a long time, perhaps 84 years, since we should have got rid of the wearing of gowns by the Judiciary. Will the Minister of State comment on this? I am not trying to be awkward. However, gowns and wigs and all the nonsense of the courts are arcane. The United States has managed to develop a courts system without much of the trappings on display within its Irish counterpart. It might have been wise to drop the Courts Act 1476. This is a slightly different world. I might be Lord whatever and Senator O’Rourke might be Lady somebody else. In fact, Senator O’Rourke would not be a Member of this House because——

  Mr. B. Hayes: The Baroness O’Rourke.

  Mr. Ryan: ——women would not have been allowed in.

  Mr. B. Hayes: No, she would not.

  Ms O’Rourke: I am too rude, and crude.

  Mr. Ryan: I am very glad that the distinction between Meath and Westmeath has been retained. I am sure the Leader would not be too pleased if it were otherwise.

  Ms O’Rourke: Yes, that is correct.

  Mr. Ryan: Is it the case that anything that might be trouble is being left in? I am just curious, but it seems funny.

  Mr. B. Hayes: Senator Ryan’s question needs to be posed in a much more direct manner. Were efforts made by anyone in authority in the courts to keep this particular statute in place?

  Mr. Ryan: It never crossed my mind.

  Mr. Mooney: I am really very disappointed. It is not the Minister of State’s fault and I know it is not the fault of the officials, but there is no reference in this voluminous text to County Leitrim. Is it the case that it could not be found or that we were not in it or whatever?

  Mr. B. Hayes: We are retaining it.

  Mr. T. Kitt: We are still searching.

[201]   Mr. Mooney: I am glad to hear the Minister of State mention that because I would like to be in a position to say we did something that attracted the attention of the law makers between the time of the Magna Carta and 1922. It seems that we do not exist. I notice Athlone and Westmeath figure very prominently.

  Ms O’Rourke: We were very important.

  Mr. Mooney: I believe the Leader’s predecessors were very influential people and managed to get roads fixed around Kinnegad and various other places.

  Ms O’Rourke: They paid a shilling for a toll.

  Mr. Mooney: I cannot find any reference. The serious nature of the question is whether these are all the statutes or the fruits of a selective search through the various laws enacted from the time of the Magna Carta which have been retained. I am grateful to my colleague, Senator Ryan, who raised the issue of one particular Act, namely, the Irish Musical Fund Act 1794. I am especially interested in this because it is stated in the document that the fund was flourishing as recently as 1927 and therefore this Act is not suitable for repeal. I appreciate that the Minister of State, with something like——

  Ms O’Rourke: There is money left in it.

  Mr. Mooney: Did anybody count the number of Acts and statutes? I do not expect the Minister of State to be able to single out that specific one and give me further amplification from what we have already received in the document.

  Ms O’Rourke: This relates to indigent musicians.

  Mr. Mooney: Wearing my other hat, as someone with an interest in the music industry, it seems to have been a capital idea to have provided money for infirm musicians. Perhaps the Minister of State might have some comments whether, in retaining this Act, he might be resurrecting that fund. Knowing his interest in the music industry, his son being an attractive and successful singer-songwriter in his own right, I make my comment as a declaration for both the Minister of State and me as much as anything else. I emphasise this before he answers the question. Perhaps there is a case to be made not only for retaining this particular Irish Musical Fund Act, but for updating it and providing some moneys, as required, for any infirm musicians. I am curious to know whether these are the statutes in their entirety or is this just a select grouping which the Government has decided either to repeal or retain?

Given the historical nature of the process we are undergoing in the House, it is really a journey through hundreds of years of Irish history. There is reference to the confiscation of lands of the Irish rebels and to the millions of acres taken off [202] the native Irish during the Elizabethan and post-Elizabethan wars. This is living history. I will not say I feel a certain degree of nostalgia at their passing because they are being retained for a variety of reasons.

There is an historical dimension to this that should not be lost on the wider educational environment. Has the Minister of State given any thought to perhaps conveying the information contained in this document on DVD or CD for schools purposes? As already alluded to in the House, we have been given a wonderful interpretation of many of the Acts and statutes which were raised specifically by Members. However, there are hundreds of others which were not raised and about which we do not have specific information. Having gone through this process, I am curious to know whether, from an educational viewpoint, the Minister of State might consider making this information available to a younger generation for historical research purposes.

  Dr. Mansergh: I have two quick points to make. On Senator Mooney’s issue, Edward Bunting’s Ancient Irish Airs was published in the early 1790s and the legislation the Senator alluded to may have a reference to it. However, retaining the Courts Act 1476 seems to me to be entirely in keeping with certain traditions of our Judiciary which go back unbroken to the ancien régime, however defined. Unfortunately, medieval legislation and our courts are not necessarily as out of kilter as we might like to think.

  Mr. T. Kitt: I again thank Senators for their contributions in this debate. It has been marvellous for me to come to the House and it is always enjoyable.

  Mr. Ryan: On a point of clarification, are we finishing now?

  Ms O’Rourke: I shall just clarify that. The Order of Business provides for this debate to continue up to 8.30 p.m. The Minister of State must go to the Dáil and the Minister of State dealing with Adjournment Matters is outside the Chamber.

  Mr. T. Kitt: With regard to the Tumultuous Rising Act 1779 and the issue of the Whiteboys, following the important debate on the matter here, I raised this matter, as was suggested, with the Tánaiste. I wrote to him with a view to ensuring that the Whiteboy Acts are repealed by way of substantive statute law reform.

  Ms O’Rourke: They would not be voting for the PDs if they were around.

  Mr. T. Kitt: With regard to the Courts Act, I accept the point made about lords wearing their robes in parliament. The Act compels lords to wear their robes in parliament and judges and barons to wear their habits and coifs in term time. It provides a statutory basis for the wearing of gowns by the Judiciary and it is therefore not suit[203] able for repeal. While we might not like some of these statutes, my job was to retain Acts that are still relevant today.

  Dr. Mansergh: They are still relevant.

  Mr. T. Kitt: The issues which were raised are important. It is a matter for us perhaps to change in the future.

  Ms O’Rourke: Judges wearing their silly wigs.

  Mr. T. Kitt: The Irish Music Fund Act deals with the Irish music fund set up in 1787 to support infirm musicians. Through the subscriptions and the profits made therefrom, a capital stock of £1,000 was lodged into the hands of the treasurer. The Act states that all the subscribers to this fund are to be a body corporate and politic and they will have perpetual succession and a common seal. The Act describes the working of the committee. The fund was flourishing as recently as 1927 and therefore this Act is not suitable for repeal.

I wish to make two points about references to terminology such as the “lunacy” etc. The Interpretation Act 2005 updates and simplifies the interpretation of statutes in a way that allows for legislation that uses more precise and accessible language. This is relevant to the point Senator Brian Hayes made about terms such as “lunacy”. In regard to the archaic and sometimes offensive language which appears in pre-Independence statutes, this will be eliminated in the programme of repeal and re-enactment which ultimately will see all pre-Independence legislation removed from the Statute Book

I regret that I now have to leave to go to the Dáil. This is a list of Acts applying to Ireland that have not been repealed. I thank the Members for their co-operation and we will continue this work at a future date.

Progress reported; Committee to sit again.

  Acting Chairman: When is it proposed to sit again?

  Ms O’Rourke: At 10.30 a.m. tomorrow.