PATRICIA RICKARD CLARKEoutlines the benefits of statute law restatement and the legislation directory
LAWYERS ARE often asked: “Where can we find the law on that?” This is actually quite difficult to answer, especially because “Irish law” includes more than 1,200 pre-Independence Acts of Parliament carried over when the State was set up in 1922, along with more than 2,000 Acts passed since 1922, as well as judge-made laws (common law or precedent). Here we are concerned with the current position on legislation.
Before looking at circumstances in Ireland, we should look elsewhere.
If you wanted to find US law, you could find it all online. For example, if you wanted to know about US bankruptcy law, you will find it in the federal United States Code (USC), which is a complete collection of all the US federal laws classified under 50 titles with major subject headings. The full text of the USC is available at the website of the US Federal Digital System (FDsys), www.gpo.gov/fdsys.
When you open up the full list of titles in the USC, you find Title 11, Bankruptcy. If you click on this, you find it divided into various chapters; Chapter 11 is called Reorganization. Of course, from various media reports, we already know that “filing for Chapter 11” means an individual or a company has filed for bankruptcy in the US.
Closer to home, the UK Legislation Database, www.legislation.gov.uk, contains the up-to-date text of UK legislation, including Northern Ireland law, though this is not currently based on the classified approach of the USC.
Is there anything like the USC regarding Irish law available online?
The full text of every Act passed by the Oireachtas since 1922, about 3,000 Acts in total, is available free online on the electronic Irish Statute Book (eISB), www.irishstatutebook.ie. The texts of each Act as originally passed by the Oireachtas are included here.
By searching in the Legislation Directory, also on the eISB, you can find out whether an Act has been amended or repealed. About 1,000 of the 3,000 Acts have been repealed and replaced since 1922. Using the Legislation Directory, you can track all changes to any Act.
Since 2007, the Law Reform Commission has had functional responsibility for updating and maintaining the Legislation Directory. In its recent report on the directory, the commission describes how it has developed its format, content and ongoing maintenance, and what further enhancements are in train.
What’s the difference between the United States Code online and the electronic Irish Statute Book?
The USC online gives you two important things. Firstly, you have a classified collection of all legislation under 50 major headings. Secondly, the USC is updated regularly so any changes to US law are incorporated into the text you read online.
The eISB is an excellent resource, but the 2,000 Acts passed since 1922 that remain in force today are not officially organised under general subject headings. And while the directory allows you to track all changes to these 2,000 Acts, there is no website where you can find the up-to-date text of all Acts as amended.
What’s being done to provide access to the up-to-date law? Quite a lot. First, the commission has recently published a consultation paper on a Classified List of Legislation in Ireland. This contains a draft Classified List of over 2,000 Acts under 36 major subject headings, and it includes all post-1922 Acts that remain in force. The list also includes more than 100 pre-1922 Acts that remain in force. This is the first concerted effort in Ireland to classify related Acts together – such as on business regulation, employment law or taxation – in order that it becomes clearer where to find the law.
The draft Classified List does not contain the up-to-date text of any of these Acts, but some work is being done on this too. The commission was asked to develop a programme of Acts which could be presented in their up-to-date form – these are called restatements.
After its usual consultation process to make sure the Acts chosen would be of special use – to citizens, businesses and State bodies – more than 70 Acts were included in the commission’s First Programme of Restatement. These are now being made available free online on the commission’s website, www.lawreform.ie, and they have been organised using the 36 subject headings in the draft Classified List of Legislation.
The up-to-date text of the following Acts are among those now available: the Data Protection Act 1988 (as amended by 30 Acts since 1988); the Freedom of Information Act 1997 (as amended by over 40 Acts since 1997); and the Prevention of Corruption Acts (three of which are pre-1922 Acts). We are not yet within reach of the comprehensive updating found in the US, but it is a start.
In the context of the current wider debate on institutional reform, these developments have a number of benefits.
First, having a Classified List of Legislation allows the Oireachtas to see where any proposed Bill fits into the wider existing legal framework. Second, restatements allow legislators to see clearly what the current state of the law is.
For example, if the Freedom of Information Act 1997 is to be reformed, the restatement on the commission’s website allows the Oireachtas to see clearly how it has been amended since 1997 and then to assess what needs to be changed.
A third, related, benefit of the commission’s work on law reform generally is that our reports provide an explanation of how the commission has come to its conclusions on a specific project, and the reports also include draft Bills. This may be of assistance in the context of proposals for pre-legislative scrutiny in the Oireachtas.
Patricia Rickard-Clarke is a full-time commissioner with the Law Reform Commission