The Gazette 1990

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GA Z E T TE SEPTEMBER 1 9 9 0
In
this
Issue
Viewpoint
Schizophrenia and the Law
Book Reviews 321
People and Places 322
Capital Acquisitions Tax
Training Video 325
Securing the customer's
interest 328
LawbHef 334
303
*
E x e c u t i ve Editor:
Mary Gaynor
C o m m i t t e e:
Eamonn G. Hall, Chairman
Michael V. O'Mahony, Vice-Chairman
John F. Buckley
Gary Byrne
Patrick McMahon
Daire Murphy
John Schutte
A d v e r t i s i n g:
Seán Ó hOisín. Telephone: 305236
Fax: 307860
P r i n t i n g:
Turner's Printing Co. Ltd., Longford.
*
The views expressed in this publication,
save where otherwise indicated, are the
views of the contributors and not
necessarily the views of the Council of
the Society.
The appearance of an advertisement in
this publication does not necessarily
indicate approval by the Society for the
product or service advertised.
Published at Blackhall Place, Dublin 7.
Tel.: 710711. Telex: 31219. Fax: 710704.
GAZETTE I N COR P OR A T E D
L AW SOC I E T Y
OF IRELAND
Vol.84 No.9 Novembe r 1990
Viewpoint
It is unusual for newly introduced
legislation to be immediately sub-
ject to rigorous examination in and
out of the Courts. Such however
has been the fate of the Companies
(Amendment) Act 1990, under
which Mr. Peter Fitzpatrick was
appointed Examiner of the com-
panies in the Goodman Group. It
has already become apparent that
there are serious questions to be
asked about the legislation, notably
in relation to some of the time limits
imposed for the carrying out of
various functions under the Act and
also the extent of the powers which
remain in directors of the company
during the initial period of the
Examiner's term of office.
Apart altogether from those
cases inwhich particular provisions
of modern legislation have been
held to be unconstitutional, which
might be categorised as the
ultimate failure of our legislative
process, it is becoming clear that
there are flaws in a significant
amount of our recent legislation.
The Law Reform Commission in its
report on Land Law and Con-
veyancing Law - 1 General Pro-
posals, published in June 1989,
drew attention to a number of
provisions in modern legislation
which contained anomalies which
significantly affected the operation
of the legislation.
Our legislative process basedas
it is on that inherited from the
United Kingdom, requires legisla-
tion to be impeccably drafted if it
is to be effective. In order to ensure
that this has been achieved, it
requires diligent line by line exami-
nation. It is not the practice to
publish draft Bills in advance nor to
circulate them for comment and
accordingly it is largely at the
Committee stages of a Bill in the
Oireachtas that this examination
takes place. Whether our legislators
are properly equipped or have
sufficient skilled back-up to carry
out this task may be open to doubt.
What is certain is that fairly regu-
larly they are not given a proper
opportunity to do so. If the guillo-
tine procedure is adopted or if there
is otherwise perceived to be a
reason for accelerating the legis-
lative process, as in the case of
Finance Bills, it is the Committee
stage which suffers. Many recent
Finance Bills have never had a
serious Committee stage.
Two changes should be given
consideration. Perhaps Dáil or
Oireachtas Committees should be
engaged in the line by line exami-
nation of draft legislation in more
detail at an earlier stage. Presenta-
tion of draft Bills could be made to
a Committee by the officials who
have generated the legislation and
the draftsmen who have converted
it into Bill form. Circulation of the
draft Bills in advance wouldenable
interested parties to take expert
advice not merely on the policy of
the legislation but also on the
actual wording and this could be
debated before the Committee.
Hopefully this might avoid some of
the errors and anomalies which
under the present system are likely
to recur.
A more fundamental change
would be in our legislative style.
The "Plain English" movement
seems to be slowly gaining ground
though in order for it to be effective
it will be necessary presumably for
a change in legislative style to take
place. Such a change has already
taken place in the legislation of
New York State and it does not
appear that the sky has fallen in as
a result. This topic is on the pro-
gramme of the Law Reform
Commission and it is understood
that it is under active consideration.
In a legal system which does not
condone ignorance of the law, it is
surely important that the laws
should be composed in a language
that can be understood by the
average primary school leaver. At
the moment much of our legislation
defies the average Law School
graduate. •
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