The Irish Statute Book: A Guide
to Irish Legislation
by Brian Hunt (Francis Bennion, Consulting Editor)
First Law Limited, Dublin 2007
||Doc. No. 2007.024
Introductory note by FB
The following is a foreword I was invited to contribute
to Dr Brian Hunt’s book
The Irish Statute Book: A Guide to Irish Legislation which was published by
First Law Limited, Dublin in 2007. I consented to an invitation from the publishers to
honorary consulting editor. There is on this website a review
of the book by Edward Donelan.
photograph shows Dr Hunt with his wife and parents at Trinity
in July 2006 following conferral of his doctorate.
by Francis Bennion
This is a remarkable book, and the author Dr Hunt is to be warmly congratulated. It is
as thoroughgoing a treatment of a difficult area of law as could be wished for. Above
all it is a campaigning book. The author detects grave defects in the Irish Statute Book
(which was based on the British Statute Book) and wishes to see them corrected. As one
who has for more than forty years similarly campaigned for improvements in the British
Statute book I salute him as a fellow toiler in a socially important vineyard. The problems
are similar, though the Irish have complications additional to those that plague British
legislators and their hapless victims. Ireland has a much smaller population, yet needs
to cope with a like mass of domestic legislation coupled with the challenges posed by
the copious output of the European Union and the restricting framework of the European
Convention on Human Rights. Ireland also has a written constitution, which so far the
British have escaped.
Dr Hunt’s book has a wide range, and is clearly the product of extensive research.
He takes us back to the beginning with an account of Brehon law and the origins of the
present Irish Statute Book. He describes minutely the composition of that notional yet
real entity the Statute Book, and the various categories of Acts and aids to their understanding.
Then he passes to the Parliamentary Draftsman’s Office and its modern equivalent
the Office of the Parliamentary Counsel, where all the Irish Government’s legislative
drafting work is done. He describes how it is done, and how it might be better done.
He goes on to explain the vital role played by the courts in pronouncing on the legal
meaning of legislation.
There follows a lengthy disquisition on the structure and
features of legislation, with an examination of the vexed question of using plain language
in the drafting of Acts,
to which I shall return. Then the author deals with how Acts are amended. This is an
important aspect because much of the confusion and complexity of the Statute Book arises
from the way it is from time to time altered. The author turns to the important question
of how Acts are published and made known to the user. A disquisition on secondary or
delegated legislation concludes the book.
I pass finally to the most important problem dealt with
by this work. What should be done to improve the state of the Irish Statute Book and
the plight of those who have
to consult it? It would be impertinent, indeed provocative, for me as an Englishman to
address that problem directly. Instead I will talk about the similar problem we face
in Britain with our Statute Book.
It is necessary to identify the controlling factors. The
first of these is that the Statute Book exists. In all its complex bulk, copiously added
to from year to year, it squats
like a toad in the path. It contains vital rules and commands that have been fought over,
even sometimes died for. They are rules and commands that closely affect every citizen.
They govern his or her safety, security and property. They regulate family affairs and
health, and the education of every child. By complicated provisions they impose taxes
at various rates and in differing circumstances. And so on. It is a solemn undertaking
for a reformer to try tinkering with these sinews of the social fabric – let alone
sweeping them away in order to substitute something more fit for its purpose.
And what would that be? It is not at once apparent, and
there is much dispute over it. Some reformers think all would be well if the mass of
current laws were replaced by something
to similar effect written in plain English, so that every ordinary citizen could understand
it. That persistent notion is fallacious (and here I can put down one certain pointer
amid all the confusion). Ordinary citizens should be discouraged from trying to understand
raw legislation. Why? Because it may cause them harm to attempt it. They may think they
understand a vital law and act on that belief. Their belief is likely to be mistaken,
and that might lead them into harm.
Let me now change that far-fetched metaphor of the toad
and substitute a Swiss watch, at the same time introducing another truth. No Act of Parliament
is complete in itself.
I could put this another way. Every Act is an amending Act. What does it amend? Why the
Statute Book itself, which otherwise continues in force unaltered. Although the Statute
Book is said to be a notional concept, that is not in essence correct. There is in actual
fact a large collection of extant Acts each very much in force (literally true, because
in the last resort force will be used to enforce them). All that is missing to make a
real book is the binding. And of course many bound books would be needed to include all
The idea of the Swiss watch as a metaphor for the Statute
Book arises in this way. Suppose a small component of a Swiss watch wears out or breaks
(unlikely I know).
It has to be
replaced. With what? No one would suggest that the repairer has a free hand here, and
can replace it with anything he fancies. His replacement may not be exactly the same
as the defective part, but it must fit in with the rest of the watch’s mechanism.
The same is true of a new Act. Even though its form may differ slightly from the Acts
already comprised in the Statute Book (perhaps because it has been decided that in future
headnotes will be used instead of sidenotes for sections), it still has to conform generally.
There is not much room for manoeuvre, or the system really will break down.
to another point. You can’t repair a Swiss watch unless you are an expert
in that particular line of work. The same applies to drafting an Act of Parliament. It
also applies to arriving at the legal meaning of an Act of Parliament (as opposed to
the grammatical meaning, which may be different). The whole subject is an expertise,
as indeed is that of law generally. That is why we need lawyers.
So we should reluctantly
accept that the new reformed Statute Book must be designed for use by the legal profession,
not the ordinary citizen. Moreover it must at all times
be available to the legal profession in fully updated form. Dr Hunt exposes in pitiless
detail the present shortcomings on that point, which are mirrored in the case of the
British Statute Book. In both countries they show a disgraceful failure by Governments
to perform their basic duty of making the law available.
The citizen needs, and the state
must provide, adequate information, in lay terms, about what the law enacts. The citizen
must not be encouraged to go direct to an Act of Parliament
for information because, as I have said, no Act is complete in itself. It must be read
in context, and the context for every Act is the whole of the law. An individual Act
is the single part that must fit into the mechanism of the Swiss watch and assist its
efficient working. It is the legal experts who know about that – or should do.
it comes to statutory interpretation, this truth is expressed in what is called the informed
interpretation rule. If the drafter had to frame the new Act in terms suitable
for a reader ignorant of past and contemporary facts and of legal principles (and in
particular the principles of statutory interpretation), it would be necessary for the
drafter to use far more words than is practicable in order to convey the meaning intended.
This informed interpretation rule is to be applied no matter how plain the statutory
words may seem at first glance. Indeed the plainer they seem, the more the reader needs
to be on guard. A first glance at an enactment is not a fully-informed glance. Without
exception, statutory words require careful assessment of themselves and their context if they are to be construed correctly.
The ordinary citizen is not equipped to carry out
this assessment, which confirms the need to draft for the expert. I cite as one authority
a book of which I was unaware until
I came across it in Dr Hunt’s work, whereupon I immediately sent for it. The
title is The British Statute Book. It was published in 1957, and the author is Christopher
Hughes, who also wrote a book on the Swiss Constitution. He drew on his knowledge of
that when he wrote (p. 67):
“One of the most striking features of the Statute
Book of the United Kingdom is the method of speaking it adopts. A foreign code, such
as the Swiss Civil Code, is supposed to be
read by the citizen: ‘A wife shall run the household,’ it says. This type
of precept, a mixture of commonplaces with things unenforceable, is not the subject matter
of Acts of Parliament . . . The British rule deals with the marginal case, and is addressed
to the specialist; the foreign code is couched in the form of a series of platitudinous
maxims for the citizen.”
The last words of the Hughes book (p. 164) are telling
on the question of a lay reader trying to look up legislation for himself or herself: “The
reader need hardly be warned not to rely too much on his own researches in a pursuit
which is full of pitfalls
even for the experienced.”
If a new kind of Statute Book is to be produced, the first
thing needed is a substantial addition to the corps of expert drafters. It is said to
take ten years to produce a fully
competent legislative drafter. I can confirm that. I slaved away in the Westminster Parliamentary
Counsel Office for twelve years from 1953 to 1965, and still had not been promoted to
the full rank of Parliamentary Counsel - and that was not unusual. So I got tired of
waiting and left to do something else. (I was invited back later, at the full rank.)
That is one problem, to find the necessary drafters. Another problem is to decide on
the form the new Statute Book should take. I believe there should be much more discipline
about Government use of legislation. The new Statute Book should be arranged under titles
according to subject-matter. When thereafter it is amended, as amended it is bound to
be, this structure should be carefully preserved by the amending Acts. Above all, there
should be far less legislation. A country’s laws should not be constantly churned
into new shapes.
For years there has been a constantly-increasing tendency
on the part of politicians to think that it will benefit them electorally if they promote
By this law-churning a Government does serious damage. The nation’s legal system
cannot perform its social function properly if it is constantly uprooted and replanted
in this way. Lawyers cannot know the law. Law students cannot be taught the law. More
unproductive lawyers are needed to work the system. Judges are thrown into confusion.
In the book from which I must not keep you much longer, the Dr Hunt cites Lord Radcliffe:
‘The respect for the law, without which it will certainly
never be readily obeyed, cannot survive the spectacle of its continual making and remaking
before our eyes. Human nature
is not so constituted.’
final things are required, and these are the most difficult of all. The Government must
be persuaded to back to the hilt this grandiose project, and put big money behind
it. The legal profession must really want it, and take pains to dispel a notion I have
spent my professional life seeking to dispel, namely that lawyers like obscurity because
it is good for business.
. Lord Radcliffe, “Some Reflections on Law and Lawyers” 10
C.L.J. 361 at 366.