Labour Comment Editorial:—April 2007

The Law is an Ass
i.e. A Beast of Burden

OVER 1,000 archaic laws will remain in the statute books even though they were never processed by the Dáil, the Labour Party claimed in the Dail on February 28, 2007.

Under the Government's move to tidy up the statute book, 3,188 laws will be repealed under the Statute Law Revision Bill, while 1,348 unpublished laws which were not passed by the Oireachtas will remain.

This follows a process of examining 26,000 Acts, which found that 9,000 laws had already been wholly repealed and another 12,500 Acts had never applied to Ireland.

Laws dating back to William the Conqueror are among 3,188 Acts from 1204 to 1922 to be repealed in legislation introduced in the Dáil on February 28, 2007.

However, a further 1,348 ancient Acts will be retained including the 1471 Parliamentary Privilege Act, which prevents the arrest of members of the House of Lords on their way to parliament. Other retained legislation includes a law "providing free hostelry for the Knights of St John".

IRISH law is based partly on common law and partly on statute law.

COMMON LAW: Originally the ancient unwritten law of England, so called because it became common to the whole of England and Wales after the Norman Conquest in 1066. In time it came to mean judge-made law as opposed to statute law. (A Dictionary of Irish Law, Henry Murdoch, 1990).

STATUTE LAW: The body of law enacted by the parliamentary process. A statute includes, in addition to Acts of the Oireachtas, acts of the Oireachtas of Saorstat Eireann, Acts of the Parliament of the former United Kingdom of Great Britain and Ireland, and Acts of Parliament sitting in Ireland at any time before the coming into force of the Union with Ireland Act 1800. (ibid.).

Law is at once mercenary and ideal, commonplace and transcendental, native and exotic.

And in Ireland it is imported.

Irish law is colonial. It has no connection with the Brehon law by which Celtic society was ordered for two thousand years. Irish law is the particular variant of Romano-German law that was forged in England. And when a movement was set afoot in the 1940s to displace English law, it was proposed to substitute, not a development of Gaelic law, but Roman law as developed in the Canon Law of the Catholic church.

The Irish State was established because of a revolution, but established with the legal connivance of the departing imperial power. The old body of law was retained, even though the new State was informally committed to a philosophy of life which was incompatible with the philosophy which inspired the old laws and guided the old judiciary. (Article 73 of the Free State Constitution, which appears unaltered as Article 50 of the 1937 Constitution, continued inherited law in "full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas", with the proviso that they were "Subject to this Constitution and to the extent to which they are not inconsistent therewith". The Courts held this to apply to judicial precedent as well as Statute Law.).

The system of Republican Courts established during the War of Independence was discontinued when the Free State was established, and the Republican judges were put on half-pay, though the rights of litigants in those Courts were protected by Acts in 1923 and 1924 (Dail Eireann Courts (Winding-Up) Act 1923 and Dail Eireann Courts (Winding-Up) Amendment Act, 1924).

"The inherited system of Courts was reorganised and the 1924 Courts of Justice Act reconstituted the legal structures. The new Government replaced most of the pre-independence judges, but the new judiciary were, for the most part, British in their legal orientation" (The Constitutional History of Eire/Ireland, Angela Clifford, Athol Books, 1987).

In a state calling itself a democratic republic, there should be no secret laws.

Legal theory says that a law is not binding upon a people unless promulgated to them, that is, communicated in advance to those whom it is meant to bind. In this Republic, every law passed by the Oireachtas is deemed to be promulgated by being formally published in An Iris Oifigiul, which is of course regularly delivered to and eagerly perused in every household in Ireland.

It is bad enough for domestic legislation; what about the larger volume of EU material?

But what of the laws that were enacted before the present population were born, or even before the State itself came into existence ?

Archaic Law

Minister of State Tom Kitt, who introduced the Statute Law Revision Bill in the Dail on 28th February 2007, said that some of the retained Acts "may be of ongoing relevance", but these would ultimately be repealed or re-enacted in modern form. The list of Acts in the schedule or appendix to the legislation is longer than the Bill itself.

Mr. Kitt said the Attorney General's office had to date identified—

"60,000 examples of pre-independence primary legislation, of which about 26,700 are public and general statutes and about 33,300 are private statutes or local and personal statutes".

"…removing such archaic, obsolete legislation provides greater clarity to citizens on the legislation that remains in force and removes a significant legislative burden from the economy and society as a whole".

The Bill was the second part of a process to remove all unnecessary legislation from before 6th December 1922.

The complexities of the system were highlighted by Labour's Emmet Stagg, who told the Dáil that members of the public seeking a copy of the law on cruelty to animals have to contact Her Majesty's Stationery Office (HMSO) in Belfast. There, people must pay £2.85 (4.23 euros) to obtain a copy of the Act.

"It is surely unacceptable that legislation which is enforced on a daily basis should be so difficult to track down for so many of those affected by it," said Deputy Stagg.

The difficulties in obtaining a copy of the Protection of Animals Act 1911 came to light when his colleague was informed by the Department of Agriculture that they do not provide copies of the legislation.

And indeed HMSO in Belfast confirm that paper copies of the 1911 Act can be ordered by credit card or sterling draft at £2.85.

Deputy Stagg further claimed that the online Statute Book will inform readers of whether and where a pre-1922 Act was amended, but will not disclose what the original Act looked like before it was amended or, therefore, what it looks like now.

"The conclusion is that, unless you belong to a law library or have access to online electronic resources, you will not see a copy of the original, 1911, legislation", he said.

"And what's worse, even if you do have a copy of that Act, you will then need a scrapbook, scissors and paste to assemble together a facsimile of what the law looks like now by including one by one all the amendments subsequently made to that law."

Deputy Stagg also highlighted:

"The fact that we are retaining an Act to give effect to the peace treaty with Hungary signed at Trianon in 1921 raises a question as to whether this treaty remains in force, whether this State is bound by it, and how many other pre-independence treaties might remain in force," he added.

Fine Gael chief whip Deputy Paul Kehoe described as "extraordinary" the Acts deemed necessary for retention including the Dublin Fair Act of 1252 to the Constabulary and Police (Ireland) Act 1919.

"What could possibly be contained in those Acts that is not in legislation enacted since 1922?" he asked.

Green Party finance spokesman Deputy Dan Boyle suggested it might be "sinister" to retain the Parliamentary Privilege Act of 1471 "which concerns freedom from arrest of Members of the House of Lords coming to Parliament and their servants".

That is bad enough, but the position can be almost as bad with legislation passed since the foundation of the State.

For example, there are time limits for taking legal proceedings. In 1957, there was passed a Statute of Limitations, which seemed to set down those time limits. In 1990, this was amended and the two acts are together cited as the Statutes of Limitations 1957-90. So, a citizen would be forgiven for thinking that to ascertain the time limit, one could refer to those Acts for the answer, right ?

Wrong. In their wisdom, legislators have chosen to amend the Statutes of Limitation—as just one example—in other legislation. For example, a child not provided for in the will of a parent can challenge the will within 6 months of the grant of probate, but not after those 6 months have expired. This limit is not mentioned in the Statutes of Limitation 1957-1990. It was first enacted in the Succession Act 1964, and then amended in a Family Law Act 1996.

Another example is the International Arbitration Act of 1998. Huge portions of this statute refer not only to international arbitration but to all arbitrations. Even the lawyers are confused.

There is a crying need for codification of our laws. This a continental idea, not generally something that commends itself to English or Irish lawyers. But the Americans have done it.

Put the law in writing, so that the ordinary man or woman can read it. Codification, the lawyers call it. For instance the Criminal Law should be in one book of simple English. The lawyers prefer it to be in a hundred thousand Acts and legal decisions.

Yet no modern state would dream of stating its criminal law except in clear, codified form.

The list of all legislation affected by the Bill is accessible on <www.attorneygeneral.ie>

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