Dáil Éireann - Volume 197 - 06 November, 1962

Statute Law Revision (Pre-Union Irish Statutes) Bill, 1962—Second and Subsequent Stages.

Minister for Justice (Mr. Haughey): I move that the Bill be now read a Second Time. The purpose of this Bill is to eliminate from the statute book enactments or parts of enactments which, although not specifically repealed, are in fact dead or obsolete. The present Bill deals only with Pre-Union Irish statutes, that is, Acts passed by a Parliament sitting in Ireland at any time before the Union of 1800. It is intended as the first of a series of Bills for the removal of unnecessary matter from the statute book. Further statute law revision Bills, dealing with English and British statutes still applying in the State, are in course of preparation.

The passage of these Bills will enable a comprehensive chronological table and index to the whole of the statute law in force in the State to be produced. Such a work is badly needed. At present, a person seeking information on a particular subject of statute law may have to consult three indexes, of which two are out of print. These publications are: the Index to the Pre-Union Irish Statutes, contained in the Irish Statutes Revised, 1885; the United Kingdom Chronological Table and Index to the Statutes (37th edition, 1921) and the latest Index to our own statutes, 1922-58. Every enactment referred [462] to in either of the first two works must be checked against the Chronological Table of Effect of Legislation in our own Index to ascertain its subsequent history and present state. It is not feasible to produce a comprehensive index until the great mass of absolete legislation is cleared away, as is now proposed.

The work of statute law revision has a further great advantage: It will make possible the publication of a series of volumes containing the whole body of the living statute law. At present this legislation is contained in approximately 170 volumes, taking account of the Irish Statutes Revised, 1885, as one volume and ignoring the separate volumes of Pre-Union Irish statutes. There is a British series of Statutes Revised, down to 1920, in 24 volumes, which is extremely convenient but has to be used with caution as it is not fully revised for Ireland. All of the pre-1922 annual volumes are long since out of print; many are difficult to procure; their condition is deteriorating and they contain an increasingly large proportion of dead matter.

Previous Statute Law Revision Acts, dealing with Pre-Union Irish statutes, were enacted by the British parliament in 1878 and 1879. No general revision has since been undertaken although a certain number of them have been repealed by particular statutes, notably by the Gaming and Lotteries Act, 1956, the Administration of Estates Act, 1959, the Defamation Act, 1961, and the Civil Liability Act, 1961.

The Acts of the Parliament of Ireland (1310-1800) are printed in full in the Folio Edition in 20 volumes, which was printed pursuant to an order of the Lord Lieutenant, dated 27th April, 1762. Following on the passage of the Statute Law Revision (Ireland) Acts of 1878 and 1879, a revised edition of the Irish Statutes, in one volume, prepared by William F. Cullinan of the Irish Office, West-minister, was published in 1885. This volume, commonly known as Cullinan's Edition, contains all the enactments then surviving, together with a chronological table of all the statutes.

I think that at this stage it might [463] be useful to Deputies to know why the various enactments in this Bill are considered appropriate for repeal. In the first place a number of the statutes reprinted in Cullinan's Edition were even then clearly obsolete, but were reproduced in that Edition because they had been left untouched by the Statute Law Revision Acts. For example, statutes relating to ecclesiastical courts and ecclesiastical law ceased to be in force on the coming into operation of the Irish Church Act, 1869, by which the Church of Ireland was disestablished. Section 21 of that Act abolished all ecclesiastical courts and provided that on and after the 1st January, 1871, the ecclesiastical law of Ireland, except in so far as related to matrimonial causes and matters, should cease to exist as law. Effect, however, was not given to these provisions by the Statute Law Revision Acts, 1878 and 1879. Again, the various Acts relating to the settlement of Ireland, and others of a similar character, which, having long since served their purpose, would be regarded as spent were left untouched by those Acts and are included in that Edition.

The Pre-Union Irish Acts were, after the Union, continued in force by virtue of Article 8 of the Act of Union which provided: “all laws in force at the time of the Union, and all courts of civil and ecclesiastical jurisdiction within the respective kingdoms, shall remain as now by law established within the same.” Those which still survived on the establishment of Saorstát Éireann were continued in force by Article 73 of the Constitution of Saorstát Éireann to the extent to which they were not inconsistent with it.

Statutes relating to the Pre-Union Irish Parliament, so far as they may have survived the Act of Union by which that Parliament was abolished, are inoperative since the establishment of the Oireachtas of Saorstát Éireann.

Deputies will, I am sure, have noticed that in this Bill we are, in what might appear to be a somewhat casual manner, repealing the Act of [464] Union of 1800. I am essentially a modest sort of person. I feel that, for that reason, I should make it clear that the effective work in this regard has been carried out long ago by men better than I. However, the Act was still on the Statute Book. I think it is of some interest to us, at any rate at this stage, to note its final passing into oblivion.

Mr. Tully: Does that apply to the whole country?

Mr. Haughey: So far as this Parliament is concerned.

Those Acts remaining on 29th December, 1937, the date upon which the present Constitution came into operation, were continued in force by Article 50 of the Constitution but again only to the extent to which they are not inconsistent with it.

Mr. M.J. O'Higgins: Is the Minister saying that the Constitution kept the Act of Union in force?

Mr. Haughey: No. I said that the Act of Union was, in substance, repealed by the coming into operation of the Constitution of Saorstát Éireann but the Act still remains on the Statute Book. It is proposed now in this Bill to get rid of it in shadow, as it has long since been got rid of in substance.

Statutes relating to the style or title of the Crown, or succession to or demise of the Crown, so far as they survived the Constitution (Amendment No. 27) Act, 1936, and the Executive Authority (External Relations) Acts, 1936, were impliedly repealed by the Republic of Ireland Act, 1948.

Enactments relating to practice and procedure in the superior courts have been superseded by the Supreme Court of Judicature (Ireland) Act, 1877, and by Rules of Court made under that Act or under the Courts of Justice Acts, 1924 to 1961. Section 26 of the Act of 1877 provides: “the jurisdiction by this Act transferred to the High Court of Justice and the Court of Appeal respectively shall be exercised (so far as regards procedure and practice) in the manner provided by this Act, or by such Rules and [465] Orders of Court as may be made pursuant to this Act; and where no special provision is contained in this Act or in any such Rules or Orders of Court with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective Courts from which such jurisdiction shall have been transferred, or by any of such Courts”. The Courts (Establishment and Constitution) Act, 1961, establishes new courts pursuant to Article 34 of the Constitution and provides for the disestablishment of the pre-existing courts. The Courts (Supplementary Provisions) Act, 1961, provides for the vesting of jurisdiction in the new courts, including all jurisdiction which before the commencement of the Courts of Justice Act, 1924, was vested in or capable of being exercised by the courts established under the Act of 1877 and was, before the commencement of the present Act, vested in or capable of being exercised by the then existing courts. Section 14 of the Act provides that any such jurisdiction shall be exercised so far as regards pleading, practice and procedure generally, in the manner provided by Rules of Court, and, “where no provision is contained in such Rules and so long as there is no rule with reference thereto, it shall be exercised as nearly as possible in the same manner as it might have been exercised by the respective existing courts or judges by which or by whom such jurisdiction was, immediately before the operative date, respectively exercisable”. It follows that the repeal of any Pre-Union Irish statute regulating pleading, practice or procedure will in no way affect the exercise of the jurisdiction of the courts.

These are the main types of enactments which are being repealed by virtue of section 1 of the Bill. The Schedule, to which the section refers, also provides for the repeal of enactments which are otherwise obsolete or spent. The italicised notes in the second column of the Schedule are by way of explanation of the reason for repealing each of the enactments concerned. These notes will not, of course, appear in the printed Act and are intended [466] to facilitate those who wish to study the Bill in detail.

Section 2 of the Bill sets out the saving provisions. It provides, one might say, ex abundanti cautela, that “this Act shall not effect any existing . . . established jurisdiction, form or course of pleading, practice or procedure, notwithstanding that it may have been in any manner derived from, affirmed or recognised by any enactment hereby repealed.” The section also preserves any existing principles or rules of law or equity and maintains in force any statute which may have been revised, confirmed or perpetuated by any enactment repealed in the Bill.

The reason that the saving provisions might be regarded as being excessively cautions is that they are in addition to those provided for by Section 21 of the Interpretation Act, 1937. I think it well to indicate what the general safeguards are in cases of repealed enactments and perhaps Deputies will bear with me if I quote the whole of subsection (1) of Section 21 of the Interpretation Act. It reads:—

“Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not—

(a) revive anything not in force or not existing immediately before such repeal takes effect, or

(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed, or

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal, or

(e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in [467] respect of any such right, privilege, obligation, liability, offence, or contravention as aforesaid.”

The following are examples of the effect of this section:

Firstly, Section 10 of the Statute of Distribution, 1695, refers to a custom then existing in Ireland under which if a person died leaving a wife and children his personal estate was divided into three equal parts, one of which went to the wife, another to the children, the third part only being subject to his disposition by will; if he left a wife only and no children then his estate was to be divided into two parts of which one was to go to the wife and the other half he was free to dispose of by will. Section 10 of the Statute declares this custom to be “henceforth absolutely null and void”. This section is included in the schedule of repeals in the present Bill but this repeal will not revive the ancient custom since it will not have been “in force” or “existing” “immediately before such repeal takes effect” as required by subsection (1) (a) of Section 21 of the Interpretation Act.

Mr. M.J. O'Higgins: I think the Minister is bringing in legislation which will go some way to get back to that.

Mr. Haughey: I hope so. Secondly, the Bill also proposes to repeal the various Plantation statutes, for example, the Act of 3 and 4 Philip and Mary (1556) chapter 2 declaring the title of the Crown to the counties of Laois and Offaly——

Mr. Tully: Deputy O.J. Flanagan dealt with that a long time ago.

Mr. Haughey: ——and the statute 10 Charles the First (1634) Session 3, chapter 3, confirming the estates of various persons settled in Ireland under the plantations of Elizabeth, James and Charles I. The repeal of these statutes—I am glad to assure the descendants of planters who may be amongst us—will not affect any title acquired under or derived from it because of the provision at subsection [468] (1) (c) of Section 21 of the Interpretation Act.

Deputies will, I feel sure, agree that this Bill, being a purely technical measure, is entirely non-controversial, though, as I hope I have indicated, a highly desirable piece of proposed legislation. It is as such that I commend it to the House and ask that it be given a Second Reading.

Mr. M.J. O'Higgins: The Bill, in effect, repeals the statutes passed between 1459 and 1800 by Parliaments then sitting in Ireland. It is the kind of Bill which, as the Minister says, is entirely non-controversial and is also of a very technical nature. It is in fact the kind of Bill on which it is impossible for Deputies to know, in the absence of some kind of Select Committee, whether or not the repeals being carried out in it are the correct ones.

We must accept the Minister's word that they are, and that the staff of his Department have gone through these statutes with a very fine-tooth comb before the measure was introduced. It would be virtually impossible for individual Deputies to go through the Bill in detail for the purpose of satisfying themselves on it, even given the extremely helpful marginal notes which appear in the Bill. The Minister asks the House to regard the Bill as desirable and non-controversial. I think he is right on that. As far as we are concerned, we are prepared to give the Minister his Second Reading and the rest of the Bill, if he wants it.

Mr. Tully: As far as we in the Labour Party are concerned, we have the same views as Deputy O'Higgins. The Bill is so complicated that it would be much better if it were left to a Select Committee so that it could be properly dealt with. The repeals provided in this measure are long overdue. Somebody said to me recently that if we went to the trouble of finding out the Acts of Parliament which are still in operation in this country which preclude us from doing many things which most of us do, we would look the most ridiculous race in the world. Yet we do not seem to be doing anything about it. [469] I am glad that the Minister has taken his courage in his hands and has decided to do something about it. It is rather a pity that it does not affect the title of certain people who got quite substantial properties in this country by force of arms many years ago. Perhaps it would be unfortunate if this situation were reversed now but it would be poetic justice, if it were done. We have no objection to the Minister getting the Bill today.

Mr. J.A. Costello: The Minister gave me a piece of information which perhaps I could have got myself if I had gone to the trouble of looking up these old statutes.

Mr. Haughey: That is what we are here for.

Mr. J.A. Costello: They are not easily procurable. In the Schedule— perhaps we could take one or two at random—on page 13, there is a Statute of George I of 1721, the Boundaries Act, and the note is that it is “spent and obsolete”. Another one is on page 15, an Act of George II, the Tippling Act of 1735, of which the note says “spent”. In the operative part of the Schedule, it will appear in the Bill when passed into law that the whole of that Act is repealed, but elsewhere the suggestion is that only portions of Acts are to be repealed. If the statute is spent, why does it not say so, for instance, in the case of the Boundaries Act? The extent of the proposed repeal of that Act is defined in the Schedule in this way:

In Section 1 the words “from and after the first day of February in the year of Our Lord One thousand seven hundred and twenty-one” and the words “with treble costs”.

Why are not the words “whole Act” put in?

Mr. Haughey: It is only the words quoted by the Deputy that are spent— it is only the particular words.

Mr. J.A. Costello: If that is so, my intervention is even more justified than it might otherwise be. In his note to the Schedule on page 13 of the Bill, [470] the Minister states that the Boundaries Act of 1721 is spent and obsolete.

Mr. Haughey: The italicised words as I pointed out, are not part. They are purely explanatory.

Mr. J.A. Costello: I understand, but people would find very valuable use for this print with these notes in it. Hereafter, it might be misread.

Mr. Haughey: Section I clearly points out that the extent of the repeal is specified in the third column of the Schedule. The Boundaries Act of 1721 is merely being repealed to the extent of the words set out in the third column of the Schedule at page 13 of the Bill, and it is only these words that are spent and obsolete.

Mr. J.A. Costello: I know that now. The whole of the Boundaries Act seems to be described in this Bill as spent and obsolete.

Mr. Haughey: I agree that the placing of the italicised words may cause confusion but they will not appear in the final form. I am grateful to the House for its reception of the Bill. I should like to mention one point to which I did not refer when I was moving the Second Reading, that is, if we get this Bill through, we should be able in a comparatively short time to produce a new edition of Cullinan. It will be a very slim volume. The production of that volume will be a very considerable help and advantage to lawyers generally. The revised edition of Cullinan would be prepared by the Statute Law Reform and Consolidation Office. I do not think there is much to be gained by a Select Committee. Deputies have pointed out the technicalities which are inherent in the Bill and they will realise that a Select Committee would not make them any less technical.

If the House would give me all Stages of the Bill now, I would assure any Deputy who is interested in any particular matter dealt with in the Bill that I will see to it that an official of my Department, or from the Statute Law Reform and Consolidation Office, will attend on any such Deputy to give him a full explanation of any [471] particular points, or any particular statute, in which he is interested.

I might mention, with regard to what Deputy Tully said, that if, as he suggests, it were desirable that the Bill should operate to cancel out some of the effects of the Plantations, that, from my point of view, would be an excellent thing because I would then re-inherit, after a lapse of many centuries, by far the greater part of the Kingdom of Ulster, which once belonged to my ancestors.

Mr. M.J. O'Higgins: To let Haughey's hounds loose on them?

Mr. J.A. Costello: By any mischance, would that section revive the title to the Lough Erne fishery which was found by the Supreme Court to be defective?

Mr. Haughey: I do not think so.

Question put and agreed to.

Agreed to take remaining Stages today.

Bill put through Committee; reported without amendment ; received for final consideration and passed.