STATUTE LAW - RESTATEMENT

untitledLAW REFORM COMMISSIONS ROLE
The Law Reform Commission is an independent statutory body established by
the Law Reform Commission Act 1975. The Commissions principal role is to
keep the law under review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and modernize the law.
Since it was established, the Commission has published over 130 documents
containing proposals for law reform and these are all available at
www.lawreform.ie. Most of these proposals have led to reforming legislation.
The Commissions role is carried out primarily under a Programme of Law
Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the
Commission following broad consultation and discussion. In accordance with
the 1975 Act, it was approved by the Government in December 2007 and
placed before both Houses of the Oireachtas. The Commission also works on
specific matters referred to it by the Attorney General under the 1975 Act.
Since 2006, the Commissions role includes two other areas of activity, Statute
Law Restatement and the Legislation Directory.
Statute Law Restatement involves the administrative consolidation of all
amendments to an Act into a single text, making legislation more accessible.
Under the Statute Law (Restatement) Act 2002, where this text is certified by
the Attorney General it can be relied on as evidence of the law in question. The
Legislation Directory - previously called the Chronological Tables of the Statutes
- is a searchable annotated guide to legislative changes. After the Commission
took over responsibility for this important resource, it decided to change the
name to Legislation Directory to indicate its function more clearly.
iii
MEMBERSHIP
Law Reform Commission consists of a President, one full-time Commissioner
and three part-time Commissioners.
President:
Full-time Commissioner:
iv
Legal Researchers:
Philip Flaherty BCL, LLM (NUI), Diop sa Gh (NUI)
Eleanor Leane LLB, LLM (NUI)
Gemma Ní Chaoimh BCL, LLM (NUI)
Verona Ní Dhrisceoil BCL (Dlí agus Gaeilge), LLM (NUI)
Jane OGrady BCL, LLB (NUI), LPC (College of Law)
Charles OMahony BA, LLB (NUI), LLM (Lond), LLM (NUI)
Nicola White LLB, LLM (Dub) Attorney-at-Law (NY)
STATUTE LAW RESTATEMENT
Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal Researchers:
Kristian Douglas BA (Law and History), LLM (TCD)
Elizabeth Fitzgerald LLB, M.Sc. (Criminology & Criminal Justice),
Barrister-at-Law
Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law
Legal Researchers:
v
John Glennon
Cataloguer:
Clerical Officers:
Ann Browne
Ann Byrne
Liam Dargan
Sabrina Kelly
John P. Byrne BCL, LLM (NUI), Barrister-at-Law
Kristian Douglas BA (Law and History), LLM (TCD)
John Kenny LLB, LLM (Cape Town), Barrister-at-Law
Eimear Long LLB, PhD (TCD), Barrister-at-Law
vi
Head of Administration and Development
Law Reform Commission
35-39 Shelbourne Road
Email:
[email protected]
Website:
www.lawreform.ie
vii
ACKNOWLEDGEMENTS
The Commission would like to thank the following people who provided valuable
assistance in the preparation of the Report:
Noreen Banim, Bills Office, Houses of the Oireachtas
William Beausang, Department of Finance
Leo Bollins, eDemocracy Unit, Houses of the Oireachtas
Hugh Boyle, Department of Justice, Equality and Law Reform
Dick Caffrey, Bills Office, Houses of the Oireachtas
Cladonia Ltd.
Frank Daly, Chairman, Revenue Commissioners
Michael Dreelan, Department of Transport
Eugene Forde, Department of Enterprise, Trade and Employment
Paul Gallagher SC, Attorney General
Kevin Gleeson, PA Consulting
Aileen Harrington, Department of Justice, Equality and Law Reform
Richard Humphreys, Barrister-at-Law and Consultant to the Pre-
Independence Project, Office of the Attorney General
Brian Hunt, Mason Hayes & Curran Solicitors
Liam Kelly, CMOD, Department of Finance
Michael Larkin, Government Supplies Agency
Dermot McCarthy, Department of the Taoiseach
Colonel Tony McCourt, Defence Forces
John Marks, Office of Public Sector Information, London
Mark Martin, National University of Ireland, Maynooth
Gerry Matthews, Office of the Attorney General
Kieran Mooney, Office of the Parliamentary Counsel to the Government, Office
of the Attorney General
Deirbhle Murphy, Chief Parliamentary Counsel, Office of the Attorney General
Deaglán Ó Briain, Department of Community, Rural and Gaeltacht Affairs
Evelyn O’Connor, Department of the Environment, Heritage and Local
Government
Sean O’Shea, Revenue Commissioners
Alan Pawsey, Office of Public Sector Information, London
Randall Plunkett, Legal Services Division, Department of Agriculture, Food
and Rural Development
Evelyn Robinson, Office of the Parliamentary Counsel to the Government,
Office of the Attorney General
Barry Sheehan, Solicitor, Barry Sheehan Solicitors
Lesley Torlin, Office of Public Sector Information, London
The Commission would also like to acknowledge and thank all those who
submitted suggestions of candidate Acts for inclusion in the Programme of
Statute Law Restatement:
ix
CHAPTER 1 STATUTE LAW RESTATEMENT IN CONTEXT 5
A Introduction 5 B The context of restatement in the Irish legislative
framework 5 (1) Background 5 (2) The Statute Law (Restatement) Act 2002 and
Better Regulation 7 (3) The Irish Statute Book and pre-1922 legislation 9 (4) The Irish Statute Book and the role of
restatement 10 (5) Principle of access to legislation 12 (6) Current availability of legislation 14 (7) The content of restatements 16 (8) The Legislation Directory 18 (9) Contribution of the Statute Law Restatement
Programme to the Legislation Directory 19 C The difficulties facing restatement in Ireland 21
(1) The difficulty of finding pre-1922 legislation: The
Explosives Act 1875 and the Explosives
Substances Act 1883 21 (2) The difficulties presented by the growth of
amending Acts and “Miscellaneous Provisions”
Acts: The Irish Medicines Board (Miscellaneous
Provisions) Act 2006 24 (3) Finding the text of an Act as amended: The
Freedom of Information Act 1997 25 (4) The difficulties of incorporating statutory
instruments 26 D Benefits of restatement 29
(1) Increased transparency of legislation 29 (2) Benefits to the economy 29 (3) Benefits to the legislative process 30 (4) Benefits to the legal system 31 (5) Development of law reform – codification,
consolidation and restatement 32 (6) eLegislation 34 (7) The future of restatement 38
x
A Introduction 39 B Process 39
(1) Introduction to terminology - principal Act,
group of Acts and suite of Acts 40 (2) Reliable data 40 (3) XML data 41 (4) Identifying affecting provisions 43 (5) “As amended” 44 (6) Commencement dates 44 (7) Drafting a restatement 45 (8) Quality control 45 (9) Double blind 46 (10)Peer review 46 (11)Commission sign-off 46 (12)Transmission to the Office of the Attorney
General 47 (13)Certification 47 (14)Online publication before certification 47
C Format of restatements 48 (1) Version 1 48 (2) Version 2 48 (3) Version 3 50 (4) Modified version 3 50 (5) Groups of Acts 54 (6) Suites of Acts 55 (7) Structure 55 (8) Annotations 57
D Publication 66 (1) Printed and electronic versions 67 (2) Updating restatements 69 (3) Pre-certified restatements 71
CHAPTER 3 THE TECHNOLOGY OF RESTATEMENT 73
A Introduction 73 B The repository of data 73
(1) Uniformity of the Data 73 (2) Database 76 (3) Accuracy of the data and corruption of data 77
C Editing the data and output 80 (1) Editing Tool 80 (2) Tailoring the editing tool 81
xi
(3) Functionality 81 (4) Web front end 81 (5) Future proofing the project 82
D Law Reform Commission Technology Developments 83 (1) Repository of Data 83
E Public procurement 85 (2) Website 87 (3) Maintaining the data 87
F Quality control 88 (1) Document comparison 88 (2) Project management 89
G Technology and eLegislation 90
CHAPTER 4 PROGRAMME OF RESTATEMENT 91
A Introduction 91 B The Selection Process 91
(1) The candidates for restatement and
prioritisation criteria 91 (2) Submissions on certain candidate Acts 93
C Restating suites of Acts 94 D Survey of the Irish Statute Book since 1922 95 E Restatement of pre-1922 statutes 97
(1) Policy of replacement 97 (2) Technical considerations 101
F Restatements underway 102 (1) Restatements already completed by the
Commission 102 (2) Revision and Publication of four Restatements
already certified 103 G First Programme of Restatement 103
(1) Prepare XML versions of restatements
already completed by the Commission,
for certification and publication: 104 (2) Update four restatements previously certified,
and prepare for certification and publication: 104 (3) Acts from the List of Candidate Legislation,
together with related legislation: 104 (4) Employment Leave Legislation 106 (5) Proceeds of Crime and Criminal Assets
Bureau 106 (6) Equality Legislation 106 (7) Criminal Procedure 106 (8) Future Review 107
xii
RECOMMENDATIONS 109
A Introduction 109 B Statute law in context 109 C The process of restatement 111 D The technology of restatement 112 E Programme of restatement 113
APPENDIX A STATUTE REVISION ACT, BRITISH COLUMBIA 115
APPENDIX B EXPANDED LIST OF CANDIDATE LEGISLATION 121
FOR RESTATEMENT
1988 AND 2003
CORRUPTION ACTS 1889-2005
Adoptive Leave Act 1995 1995, No. 2 Irl
Air Force (Application of Enactments) (No.2) Order,
1918
Regulations 2007 Bill 7
2007, Bill 7 Quebe
Appropriation (1912-3) Act 1913 1913, c. 27 UK
Bail Act 1997 1997, No. 16 Irl
Bankruptcy Act 1988 1988, No. 27 Irl
Capital Acquisitions Tax Consolidation Act 2003 2003, No. 1 Irl
Carers Leave Act 2001 2001, No. 19 Irl
Carriage of Dangerous Goods by Road Act 1998 1998, No. 43 Irl
Children Act 2001 2001, No. 24 Irl
Civil Liability (Amendment) Act 1964 1964, No. 17 Irl
Civil Liability (Amendment) Act 1996 1996, No. 42 Irl
Civil Liability (Assessment of Hearing Injury) Act 1998 1998, No. 12 Irl
Civil Liability Act 1961 1961, No. 41 Irl
Civil Liability and Courts Act 2004 2004, No. 31 Irl
Community Rural and Gaelteacht Affairs (Miscellanous
Provisions) Act 2007
Constitution (Consequential Provisions) Act 1937 1937, No. 40 Irl
Consumer Credit Act 1995 1995, No. 24 Irl
Consumer Protection Act 2007 2007, No. 19 Irl
Continuing Consolidation of Statutes Act 2002 2002, Chapter
41
Control of Clinical Trials Act 1987 1987, No. 28 Irl
Criminal Assets Bureau Act 1996 1996, No. 31 Irl
Criminal Evidence Act 1992 1992, No. 12 Irl
Criminal Justice (Administration) Act 1924 1924, No. 44 Irl
Criminal Justice (Forensic Evidence) Act 1990 1990, No. 34 Irl
Criminal Justice (Public Order) Act 1994 1994, No. 2 Irl
Criminal Justice (Safety of United Nations Workers)
Act 2000
Criminal Law (Insanity) Act 2006 2006, No. 11 Irl
Criminal Law (Jurisdiction) Act 1976 1976, No. 14 Irl
Criminal Law Act 1997 1997, No. 14 Irl
Criminal Procedure Act 1967 1967, No. 12 Irl
Customs Consolidation Act 1876 1876, c. 36 UK
Dangerous Substances Act 1972 1972, No. 10 Irl
Data Protection Act 1988 1988, No. 25 Irl
Defence (Amendment) Act 1998 1998, No. 31 Irl
Defence Act 1954 1954, No. 18 Irl
Destructive Insects and Pests (Consolidation) Act
1958
Electronic Commerce Act 2000 2000, No. 27 Irl
Employment Equality Act 1998 1998, No. 21 Irl
Equal Status Act 2000 2000, No. 8 Irl
Equality Act 2004 2004, No. 24 Irl
Ethics in Public Office Act 1995 1995, No. 22 Irl
xv
European Communities (Access to Information on the
Environment) Regulations 2007
2007, S.I. No.
Aviation) Regulations 2007
2007, S.I. No.
Explosives Act 1875 1875, c. 17 UK
Extradition Act 1965 1965, No. 17 Irl
Finance Act 2006 2006, No. 6 Irl
Fire Services Act 1981 1981, No. 30 Irl
Firearms (Firearms Certificates for Non-Residents) Act
2000
Firearms (Temporary Provisions) Act 1998 1998, No. 32 Irl
Firearms Act 1920 1920, c. 43 Irl
Firearms Act 1925 1925, No. 17 Irl
Firearms Act 1964 1964, No. 1 Irl
Firearms and Offensive Weapons Act 1990 1990, No. 12 Irl
Fisheries (Consolidation) Act 1959 1959, No. 14 Irl
Freedom of Information (Amendment) Act 2003 2003, No. 9 Irl
Freedom of Information Act 1997 1997, No. 13 Irl
Governor-Generals Salary and Establishment Act 1923 1923, No. 14 Irl
Guardianship of Infants Act 1964 1964, No. 7 Irl
Health (Nursing Homes) Act 1990 1990, No. 23 Irl
Health Act 1947 1947, No. 28 Irl
Health Act 1970 1970, No. 1 Irl
Health Act 2004 2004, No. 42 Irl
Hotel Proprietors Act 1963 1963, No. 7 Irl
Indictments Act 1915 1915, c. 90 UK
xvi
Industrial and Provident Societies Act 1893 1893, c. 39 UK
Inquires Act 2005 2005, c. 12 UK
Irish Medicines Board (Miscellaneous Provisions) Act
2006
Law Reform (Personal Injuries) Act 1958 1958, No. 38 Irl
Law Reform Commission Act 1975 1975, No. 3 Irl
Liability for Defective Products Act 1991 1991, No. 28 Irl
Local Government (Ireland) Act 1898 1898, c. 37 UK
Local Government Act 2001 2001, No. 37 Irl
Local Government Act 2001 (Commencement) (No. 3)
2001
Markets in Financial Instruments and Miscellaneous
Provisions Act 2007
Maternity Protection Act 1994 1994, No. 34 Irl
Mental Health Act 2001 (Approved Centres)
Regulations 2006
Merchandise Marks Acts 1887 1887, c. 28 UK
Merchant Shipping Act 1894 1894, c. 60 UK
Minimum Notice and Terms of Employment Act 1973 1973, No. 4 Irl
Mining Industry Act 1920 1920, c. 50 UK
Ministers and Secretaries Act 1924 1924, No. 16 Irl
Ministry of Transport Act 1919 1919, No. 50 UK
Misuse of Drugs Act 1977 1977, No. 12 Irl
National Monuments Act 1930 1930, No. 2 Irl
Occupiers Liability Act 1995 1995, No. 10 Irl
Offences Against the State (Amendment) Act 1998 1998, No. 39 Irl
Official Secrets Act 1963 1963, No. 1 Irl
xvii
Packing of Explosive for Conveyance Order 1904 1904, SRO No.
1221
UK
Parental Leave Act 1998 1998, No. 30 Irl
Pawnbrokers At 1964 1964, No. 31 Irl
Personal Injuries Assessment Board (Amendment) Act
2007
Personal Injuries Assessment Board Act 2003 2003, No. 46 Irl
Prevention of Corruption (Amendment) Act 2001 2001, No. 27 Irl
Prevention of Corruption Act 1906 1906, c. 34 UK
Prevention of Corruption Act 1916 1916, c. 64 UK
Prisons (Ireland) Act 1826 1826, c. 74 UK
Prisons Act 2007 2007, No. 10 Irl
Probation of Offenders Act 1907 1907, c. 17 UK
Proceeds of Crime (Amendment) Act 2005 2005, No. 1 Irl
Proceeds of Crime Act 1996 1996, No. 30 Irl
Public Bodies Corrupt Practice Act 1889 1889, c. 69 UK
Registration of Deeds and Title Act 2006 2006, No. 12 Irl
Reprints Act 1992 (QLD) 1992, No. 27 Aus
Revenue Act 1909 1909, c. 43 Irl
Road Traffic Act 1961 1961, No. 24 Irl
Safety, Health and Welfare at Work Act 2005 2005, No. 10 Irl
Sale of Goods Act 1893 1893, c. 71 UK
Sale of Goods and Supply of Services Act 1980 1980, No. 16 Irl
Social Welfare (Consolidation) Act 1993 1993, No. 27 Irl
Social Welfare Consolidation Act 2005 2005, No. 26 Irl
Social Welfare Law Reform and Pensions Act 2006 2006, No. 5 Irl
Stamp Duties Consolidation Act 1999 1999, No. 31 Irl
Standards in Public Office Act 2001 2001, No. 31 Irl
Statute Law (Restatement) Act 2002 2002, No. 33 Irl
xviii
Statute Law Revision (Pre-1922) Act 2005 2005, No. 32 Irl
Statute Law Revision Act 2007 2007, No. 28 Irl
Statute of Limitations (Amendment) Act 1991 1991, No. 18 Irl
Statute of Limitations (Amendment) Act 2000 2000, No. 13 Irl
Statute of Limitations 1957 1957, No. 6 Irl
Statutory Instruments Act 1947 1947, No. 44 Irl
Street and House to House Collections Act 1962 1962, No. 13 Irl
Succession Act 1965 1965, No. 27 Irl
Taxes Consolidation Act 1997 1997, No. 39 Irl
Teaching Council (Amendment) Act 2006 2006, No. 2 Irl
Tourist Traffic Act 1939 1939, No. 24 Irl
Transport Act 1950 1950, No. 12 Irl
Tribunals of Inquiry (Evidence) Act 1921 1921, c. 7 UK
Údarás na Gaeltachta Act 1979 1979, No. 5 Irl
Unfair Dismissals Act 1977 1977, No. 10 Irl
University College Galway (Amendment) Act 2006 2006, No. 1 Irl
xix
The State (Harrington) v.
Victoria University of Wellington
1
INTRODUCTION
1. Statute law restatement is the administrative consolidation of an Act
with its subsequent amendments, as provided for in the Statute Law
(Restatement) Act 2002. A restatement is certified by the Attorney General as
an up to date statement of the Act in question as amended, and is made
available in print or electronic form as a single text.1 A restatement does not
have the force of law or alter the substance of the law.2 It does not require
parliamentary time or enactment, but it can be cited in court as evidence of the
law in question.3
2. In May 2006 the Government conferred responsibility for statute law
restatement to the Commission. The Taoiseach announced a public
consultation and invited submissions, many of which were received by the
Commission in the course of its preparation of a Consultation Paper. Following
the Consultation Papers publication in July 2007,4 the Commission received
further submissions. They mainly concerned the format of restatements and
discussion of legislation which would benefit from restatement in the short or
medium term.
3. The Consultation Paper discussed the state of the Irish Statute Book
both before and after 1922 and the difficulties of navigating it to establish law
which consists of much-amended provisions. It also described the strategies
employed to tidy up the Statute Book including consolidation and law reform,
codification and restatement, and considered the benefits of restatement. It
reviewed a number of comparable initiatives in other jurisdictions and discussed
restatement in the context of a future programme of eLegislation including
statutes revised and maintained up to date.
4. The Consultation Paper recognised the key importance of technology
and the format in which the electronic repository of legislation is held, can be
edited, published and protected against obsolescence or future-proofed. It
concluded that the Commission should work in XML, a mark-up language which
is an international standard for legislation, and is already employed for the
repository displayed on the electronic Irish Statute Book (eISB) at
www.irishstatutebook.ie.
4 LRC CP 45-2007.
2
5. The Consultation Paper also examined the process of restatement. It
detailed the steps involved in undertaking a restatement, the source data
available, the challenges posed by the different types of amendments to Acts
and secondary legislation. It discussed the development of a programme of
restatement and the criteria used to prioritise legislation proposed for
restatement in the submissions received. It further discussed the work
processes including quality assurance, and finally the way in which
restatements might be presented. Three versions of the Freedom of
Information Act 1997 were included in an appendix for comparison and
assessment.
6. This Report revisits the issues discussed in the Consultation Paper.
Many of the views expressed in the Consultation Paper remain unchanged, and
therefore this Report builds on the provisional conclusions arrived at in relation
to technology, process and presentation. The Report is divided into four main
chapter.
7. Chapter 1 (Statute Law Restatement in Context) describes the role of
statute law restatement in the Governments policy of Better Regulation. It
outlines the elements of the Irish Statute Book, which is not available in any
single publication but comprises pre-1922 legislation, post-1922 legislation,
secondary legislation and the Legislation Directory, published in print and (post-
1922 legislation only) online. It discusses the elements of a restatement
(statutes and secondary legislation), the Legislation Directory, and the
contribution which the Legislation Directory and Restatement Programmes can
make to each other. It describes the difficulties encountered in compiling
restatements including restatements of pre-1922 legislation, and finding
affecting provisions in “Miscellaneous Provisions” Acts and statutory
instruments. Finally, it outlines the benefits of restatement, the other
approaches to improving and simplifying the Statute Book including reform,
consolidation and codification, and the future potential of an eLegislation
programme.
8. Chapter 2 examines the process of restatement, starting with the
requirement for reliable source data marked up in XML. The chapter notes that
part of the existing electronic repository may need additional marking up,
including pre-1922 legislation where this will be restated. Other steps in the
process are described including the compilation of an Affecting Provisions
Document and validation of the relevant Legislation Directory table. The
chapter discusses quality control issues and the proposal to carry out a number
of initial restatements twice, without collaboration between those involved
(“double blind”) to ensure the methodology is reliable. It also…