The Gazette 1990

SEPTEMBER 1 9 9 0 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

GA Z E T TE

In this Issue Viewpoint Schizophrenia and the Law From the President 312 From the Director General 315 Practice Note 318 Younger Members News 319 Book Reviews 321 People and Places 322 Capital Acquisitions Tax Training Video 325 Securing the customer's interest 328 LawbHef 334 Correspondence 339 Professional Information 340 303 * 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 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. Daire Murphy John Schutte

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. •

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-

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