Civil Law (Miscellaneous Provisions) Bill 2006: Committee Stage. Wednesday, 12 December 2007

Select Committee on Justice, Equality, Defence and Women's Rights Debate Page of 4

Chairman:    Amendment No. 1 is in the name of the Minister. Amendment No. 5 is related. Amendments Nos. 1 and 5 will be discussed together.

Minister of State at the Department of Justice, Equality and Law Reform (Deputy Seán Power):    I move amendment No. 1:

Amendments Nos. 1 and 5 are purely technical. For the purposes of the Bill we use the shorter term “Minister”. There is nothing new in the provisions.

Amendment agreed to.

Chairman:    Amendment No. 2 is in the name of the Minister. Amendments Nos. 3 and 4 are related. Amendments Nos. 2 to 4, inclusive, will be discussed together.

Deputy Seán Power:    I move amendment No. 2:

Amendments Nos. 2 to 4, inclusive, are technical amendments and they adjust the years in various collective citations. I am grateful to Deputy Rabbitte and his advisers for drawing the attention of the Parliamentary Counsel to these required amendments.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 3:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 4:

Amendment agreed to.

Section 1, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 5:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 6:

This is a technical amendment giving effect to the repealed Schedule to the Bill. The context of the Schedule to the Bill is best set within the context of the various parts of the Bill where amendment is required. Amendment agreed to.

Deputy Seán Power:    I move amendment No. 7:

This amendment inserts a standard provision into the Bill.

Amendment agreed to.

Question proposed: “That section 2 be deleted.”

Deputy Seán Power:    Will the Chairman clarify the position with regard to amendments Nos. 5 to 7, inclusive?

Chairman:    Amendments Nos. 5 to 7, inclusive, relate to the insertion of new sections. Accordingly, on their acceptance, the existing sections are deleted.

Deputy Pat Rabbitte:    Is the Minister of State satisfied with that reply?

Deputy Seán Power:    Yes.

Deputy Pat Rabbitte:    Before we race through the excision of a number of sections relating to the legal services ombudsman, will the Minister of State indicate if he is in a position to outline his plans in this regard? It is unusual to introduce a Bill and then remove a great deal of its substance. As I understand it, the Minister, Deputy Brian Lenihan, intends to bring forward a separate legal ombudsman Bill. Will the Minister of State indicate the schedule relating to the introduction of that legislation and will he outline the Minister’s intentions in this regard?

Deputy Seán Power:    The former Minister, Mr. Michael McDowell, was anxious to have legislation relating to this matter brought forward. In that context, he saw including it in the legislation before us as the best opportunity to do so. The current Minister, Deputy Brian Lenihan, decided upon a different strategy because he feels it would be more appropriate to deal with the establishment of the legal services ombudsman on a separate basis. Work in this regard is well advanced. I am not in a position to provide a precise date for the introduction of the Bill but it should be ready quite soon. We expect that it will be ready for introduction in the new session.

Deputy Charles Flanagan:    I do not understand how ministerial amendments are being declared lost. I fail to see how they are being lost if they are being supported by everyone present.

Chairman:    I understand that the amendments are in the name of the Minister and that they propose the inclusion of new sections. Accordingly, when they are agreed, the existing sections must be deleted. I am, in such circumstances, obliged to put the question “That section 2 be deleted” in the affirmative but that it should not be agreed to. That is the natural consequence of the amendments in respect of which agreement has already been reached.

Deputy Noel Treacy:    I am somewhat confused. It is proposed to delete several sections when we dispose of section 2. Will the Minister of State indicate the reason for their deletion? Perhaps we could dispose of them together.

Chairman:    It is not possible to do so. Each section must be deleted individually.

Deputy Noel Treacy:    I bow to the wisdom of the Chairman.

Chairman:    When it is agreed that we pass amendments and when, as a consequence, the section is proposed to be deleted, I will be asking members to reply “Not agreed” to the question.

Deputy Thomas Byrne:    This is extremely confusing. We might be deleting the section but we are agreeing to the amendments. I do not believe that the position has been clarified.

Chairman: I suggest that we go into private session in order to clarify the procedural point.

Question put and agreed to.

Sections 3 to 19, inclusive, deleted.

Chairman:    Amendments Nos. 8 to 12, inclusive, are related and may be discussed together.

Deputy Pat Rabbitte:    I move amendment No. 8:In page 17, before section 20, to insert the following new section:

I was under the impression that we were also withdrawing this amendment in favour of the Bill which will be coming before the House tomorrow. In that event I do not see the point in my proceeding with this amendment. I will withdraw the amendment in favour of the Bill tomorrow.

Amendment, by leave, withdrawn.

Amendments Nos. 9 to 13, inclusive, not moved.

Sections 20 to 30, inclusive, deleted.

Deputy Pat Rabbitte:    I move amendment No. 14:

Deputy Seán Power:    For the same reason that amendment No. 13 would have been opposed, this amendment is opposed. A Government decision was taken early this month to delete the provisions in this Bill relating to the legal services ombudsman. It is intended to introduce a separate Bill in the near future on which work is well advanced. It is hoped to publish it in the very near future.

Deputy Pat Rabbitte:    Having heard the Minister of State, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Section 31 deleted.

Sections 32 to 38, inclusive, deleted.

Deputy Seán Power:    I move amendment No. 15:

Amendment No. 15 seeks to clarify the text of section 9 of the Courts (No. 2) Act 1997 of the Courts of Justice Act 1924, which deals with the ranking of judges appointed to the courts. It ensures that the order of seniority is reckoned from the time a judge is first appointed to a court. The issue of first appointment could arise, for example, if a judge appointed to an Irish court goes to serve a term in the European Court of Justice and at the end of that term, following a return to Ireland, is re-appointed to the same court. This amendment ensures that in such circumstances, seniority ranks from the date of first appointment.

Amendment agreed to.

Chairman:    Amendments Nos. 16 and 17 are related and may be discussed together.

Deputy Seán Power:    I move amendment No. 16:

These amendments amend sections 38 and 48 of the Court Officers Act 1926. Section 38 of the Court Officers Act 1926 deals with duties of the county registrar and section 48 deals with the duties of the District Court clerks. The amendments have the effect that regulations made under the European Communities Act 1972 for the implementation of EU directives or regulations, can confer functions or impose duties on any county registrar and District Court clerk. Section 43, as it currently stands, makes that change in relation to the Master of the High Court and this amendment does similarly for county registrars and District Court clerks.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 17:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 18:

This is purely a drafting amendment.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 19:

This amendment is necessary to remove a reference to the Public Office Fees Act 1879 from the Bill. The Public Office Fees Act was repealed by the Statutory Law Revision Act, which was enacted in 2005.

Amendment agreed to.

Section 39, as amended, agreed to.

Chairman:    Amendments Nos. 20 to 26, inclusive, are related and may be discussed together.

Deputy Seán Power:    I move amendment No. 20:

These amendments are purely technical amendments and are designed to give maximum clarity to the Bill.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 21:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 22:

Amendment agreed to.

Section 40, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 23:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 24:

Amendment agreed to.

Section 41, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 25:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 26:

Amendment agreed to.

Section 42, as amended, agreed to.

Section 43 agreed to.

Chairman:    Amendments Nos. 27 and 28 are related and may be discussed together.

Deputy Seán Power:    I move amendment No. 27:

Again these are technical amendments.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 28:

Amendment agreed to.

Section 44, as amended, agreed to.

Chairman:    Amendments Nos. 29, 31, 38, 45, 53, 58, 62, 63 and 66 are related and may be discussed together.

Deputy Seán Power:    I move amendment No. 29:

Again these are technical amendments. The purpose is to remove any ambiguity. There is no substantive change to the meaning of the provisions.

Deputy Charles Flanagan:    I do not have a difficulty with them. Why has the ambiguity come to light now?

Deputy Seán Power:    Reviewing the draft, there were some small points. Some people might refer to them as stylistic changes.

Deputy Charles Flanagan:    I accept that.

Amendment agreed to.

Section 45, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 30:

This amendment provides clarity regarding the electronic issuing of summonses, particularly in cases where a summons is issued electronically through an outside controller, such as the public sector broker. Applications for summonses relating to fixed penalty point offences have been made electronically since 2004. This amendment will allow for all summonses to be applied for electronically. The Courts (No. 3) Act 1986 provides for the issue of summonses relating to offences. Advice from the Attorney General on applying for summonses electronically under the 1986 Act is that there is no real problem with the present wording. However, to avoid even the slightest risk of successful challenge, the Attorney General has agreed out of an abundance of caution a change in the legislation could be made. The proposed amendment will ensure that any scope for ambiguity that might exist regarding summonses being applied for electronically under the Courts (No. 3) Act 1986 is avoided.

The amendment inserts a definition of electronic means into section 1 of the Courts (No. 3) Act 1986. The definition seeks to make it clear that a summons may be issued by electronic means to the person who applied for the summons, notwithstanding that it may have been transmitted through an information system, which is not under the control of the person who issued the summons or is applying for the summons. In other words it is clear that an information system may be used that is under the control of a person other than the person who applied for the summons or a person acting on his or her behalf or the appropriate office. It follows from that definition that the outside controller cannot be considered as the applicant for or the issuer of the summons.

Deputy Noel Treacy:    Based on what the Minister of State has said, I presume a summons cannot be served electronically on a person, but it can be transferred to a third party who must then serve it on the person. Is my interpretation correct?

Deputy Seán Power:    It is correct.

Deputy Charles Flanagan:    The Minister of State said there has been an abundance of caution in the drafting of this amendment and I will accept what he said.

Deputy Seán Power:    One cannot be careful enough.

Deputy Seán Power:    I move amendment No. 31:

Amendment agreed to.

Chairman:    Amendments Nos. 32 to 37, inclusive, 39 to 44, inclusive, 46 to 52, inclusive, and 59 are related and may be discussed together.

Deputy Seán Power:    I move amendment No. 32:

Deputy Pat Rabbitte:    What sort of Bill was this before all the amendments?

Deputy Seán Power:    With the word “miscellaneous” included in the title, one might not have expected otherwise.

Deputy Pat Rabbitte:    Anarchy is another word that occurs.

Deputy Seán Power:    These are stylistic changes to the text, which will allow the sections to be read more easily. There is no great change to the substance.

Chairman:    It will be a very stylish Act when it is passed.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 33:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 34:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 35:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 36:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 37:

Amendment agreed to.

Section 46, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 38:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 39:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 40:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 41:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 42:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 43:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 44:

Amendment agreed to.

Section 47, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 45:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 46:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 47:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 48:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 49:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 50:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 51:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 52:

Amendment agreed to.

Section 48, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 53:

Amendment agreed to.

Section 49, as amended, agreed to.

Question proposed: “That section 50 stand part of the Bill.”

Deputy Pat Rabbitte:    I query the purpose of this section. The explanatory memorandum is not of much assistance. We recently praised the explanatory memoranda of a couple of Bills prepared by the Law Reform Commission as being uncommonly informative and helpful. This could not be said of a couple of critical areas in the explanatory memorandum of this Bill. It is difficult to understand how it improves jurisprudence to repeal the requirement on a District Court judge to take a note of the evidence. I do not know the point of the measure. In the absence of any universal transcript system, why should the District Court judge not take a formal note in these circumstances? It is not that I oppose the section, but I am curious to know the reason the change is proposed. I would have thought there are a number of good reasons a District Court judge would take a note of the evidence before him or her.

Deputy Seán Power:    Section 50 proposes to delete section 24 of the Petty Sessions (Ireland) Act 1851. This section, as adapted and amended over the years, requires the District Court judge to take or cause to be taken a note of the evidence in each case that is heard. In circumstances where, by law, every appeal of a decision by the District Court is by way of a complete rehearing in the Circuit Court, it is difficult to see what purpose is served by the routine requirement in the section to be repealed for the District Court judge to record the evidence given in each case. If the case is appealed, the complete rehearing requirement means that those who gave evidence in the District Court can be called again to give evidence in the Circuit Court which determines the appeal, not on the basis of the report of the evidence in the District Court but on the actual evidence it heard during the appeal hearing. If the case is not appealed, the issue is not relevant.

I remind members that the Courts Service’s information and computer technology strategy includes a plan to deploy digital audio recording in all court jurisdictions, including the District Court. This should provide a more practical solution in the long term to the recording of District Court proceedings. District Court judges have enough to do in the day-to-day running of busy District Courts and it is reasonable that the law should aid them in concentrating on the essentials of the delivery of summary justice, which is the essence of the reason for having the District Court in the first instance.

A requirement to take a note or cause a note to be taken of the evidence delivered in each case is an unnecessary distraction from proceeding with the real business of the court. In this day and age, there are better ways of recording what a witness said, to the limited extent that the information is likely to be germane to the subsequent proceedings. For these reasons, I urge members to support section 50 and repeal the 1851 provision. The measure is being taken on the advice of the Attorney General.

Deputy Noel Treacy:    Being a legislator rather than a lawyer, my interpretation of the law is that once evidence has been tendered at one court and this court’s decision is appealed to a higher court, additional evidence or information may not be submitted to the higher court and the appeal must be based on the information tendered at the lower court. If proceedings are not recorded, is there a danger that the proposed measure would impugn the integrity of this requirement?

Deputy Seán Power:    That is not the case. If a decision is appealed from the District Court to the Circuit Court, a completely new hearing takes place.

Deputy Noel Treacy:    I am pleased to hear that.

Deputy Pat Rabbitte:    I am not sure the Minister of State addressed the point at issue, which is not the recording of the proceedings in the District Court but the requirement on a judge to take and retain a note of the substance or critical matter in a case. While I accept his point that there may be better ways of recording what transpires in a District Court, in the absence of such mechanisms, why is it proposed to excise this requirement? One cannot argue that this requirement is a serious imposition on a District Court judge when it has been the habit of a lifetime, as it were, and a task most judges would complete in the normal course of their work. I understand a universal transcript system is not yet in place, although the Minister of State may have information to the contrary.

I am puzzled as to the reason this measure has been sought. Has the Judiciary made representations through the usual channels to remove this modest but sensible imposition?

Deputy Charles Flanagan:    I am somewhat curious about the proposal, despite the Minister of State’s assurance that it is made on the advice of the Attorney General. How and why did it arise? The imposition on District Court judges of a requirement to have a note on the file before them is neither onerous nor burdensome but is a practical measure which contributes towards ensuring justice is carried out in a manner that befits the workings of the court.

Given that an official transcriber is not present in District Courts, I cannot think of anyone else, other than the judge, who would record any aspect of the proceedings in summary form or otherwise. One would expect that the only note available would be placed on the file before the judge on the occasion of the hearing and this file would be sent to the county registrar’s office. One would also expect, particularly in the event of an appeal, that the judge of the Circuit Court would be interested in the persons who gave evidence in the previous case and the salient points of the proceedings. The only way this information would be recorded would be on the file in the hand of the judge. Although it is possible that this requirement may have been found to be onerous, like Deputy Rabbitte, I would be surprised if judges considered it a burden to take a note of the salient points of the case. They are not required to have a full transcript, as the Minister of State indicated, and I do not envisage circumstances in which a judge would frantically attempt to record every word of the proceedings. I understand the 1851 Act envisaged that a note would be taken recording the salient points of the case.

The Minister of State referred to other options such as the use of a digital recording system. It will be some time before such systems are available in District Courts. Judges are more likely to seek an extra bar in an electric fire, a heating system or conditions conducive to the hearing of cases and conducting the business of the court. While I would welcome the roll-out, to use a hackneyed modern phrase, of digital recording equipment in District Courts, I do not believe it is imminent.

Deputy Noel Treacy:    I am a little confused. I am reminded of the old maxim, verbum scriptum stat, the written word remains. Perhaps I am wrong, but it was my interpretation of the operation of the District Court that the court clerk would record the salient points as the case evolved and the judge would stamp and sign the documents as decisions were taken. I cannot see any reason this procedure would not continue. As my colleagues indicated, it is important that we have some record, even from an historical point of view, for examination in the future by archivists, legal researchers or whatever, rather than have invisible, discretionary justice delivered with no record of what was in the mind of the judge reaching the decision.

Deputy Seán Power:    The Attorney General gave his advice on the basis that cases have already been decided where the High Court, on judicial review, refused to permit an applicant to have access to the District Court judge’s notes of the evidence. In those circumstances there seems little point—

Deputy Pat Rabbitte:    Will the Minister of State repeat what he said?

Deputy Seán Power:    Cases have already been decided where the High Court, on judicial review, refused to permit the applicant to have access to the District Court judge’s notes of the evidence. In those circumstances, there is little point in requiring the judge to keep a note.

Deputy Pat Rabbitte:    That is a substantially different justification for the section than the one we heard from the Minister of State initially. I do not know the circumstances of the judicial reviews to which he referred but I am not sure it means the High Court would take the same view in respect of every case that came before it where the applicant might make application for the notes.

Deputy Seán Power:    The Courts Service is aware of the amendment and has no difficulty with it.

Deputy Pat Rabbitte:    With respect, that is also a different point. I can understand why the District Court judges might take the view that it is fine by them. It is one requirement less for how they discharge their duties, but that is not necessarily our job as legislators. As Deputy Charlie Flanagan said, it is our job to ensure they have an extra bar in the electric heater or are provided with a coat for the winter.

Deputy Seán Power:    Those days are long over.

Deputy Pat Rabbitte:    With all due respect, the Minister of State is advancing different arguments than he made initially.

Deputy Seán Power:    They are not substantially different. I am trying to be helpful to the Deputy in giving the information that is available to me regarding the decision.

Deputy Pat Rabbitte:    I accept the Minister of State is being helpful; I would expect nothing less from him. On examination of the argument, however, I am not sure it is an especially compelling one. I am not sure the entire judicial system would grind to a halt if this is passed but at the same time, I am not sure a powerful argument has been made for it.

As Deputy Flanagan indicated, we are a long way from a national transcription system. When the digital recording system is rolled out in every District Court in Ireland, perhaps we can visit that possibility. I am not persuaded.

Chairman:    From my experience of the District Court, on any given morning a few hundred cases require to be dealt with, some of which are most petty ones, and these can put a very onerous obligation on a judge. Many of the cases can be repetitive. I do not know whether it is in order for me to intervene.

Deputy Noel Treacy:    I suggest, to be helpful, that perhaps we can agree the amendment and Deputy Rabbitte can raise the issue again on Report Stage. Perhaps also the Minister of State could prepare a specific note on this for Report Stage and cite the High Court cases where this evidence was not allowed to be taken.

Deputy Seán Power:    I have the case details with me. I refer to Friel v. McMenamin 1990 and Hegarty v. Fitzpatrick 1990. In these cases the courts refused to permit the applicants to have access to the note of evidence required under section 24 of the Act of 1851.

Every appeal to a decision by the District Court is by way of a complete re-hearing in the Circuit Court. It is difficult to see what purpose is served by the routine requirement in the section to be repealed.

Deputy Charlie Flanagan suggested that a Circuit Court judge, on appeal, would have access to District Court papers but surely that would prejudice the Circuit Court judge whose job it is to conduct the complete re-hearing.

Deputy Charles Flanagan:    The papers would be sent up from the previous case.

Deputy Seán Power:    I will take on board what has been said and I will consult with the Attorney General whether there is anything extra we can bring to explain the reasoning behind the amendment.

Deputy Charles Flanagan:    I do not suggest there is anything sinister.

Chairman:    This is not actually an amendment; the section is opposed.

Deputy Charles Flanagan:    I do not suggest there is anything sinister behind the consequences of the High Court judgments. It would appear that by deleting subsection 4 of the Petty Sessions (Ireland) Act we are removing any need for a record to be kept. I am not sure if that is in any way related to ensuring there is no paper trail.

I am not familiar with the cases to which the Minister of State referred. Access to files was sought for a particular reason which would, no doubt, be of benefit to an applicant who felt he or she did not receive justice. What is proposed is to remove any obligation on the court to have a written record of a case. I do not have a problem with what Deputy Treacy suggested, that we would get more information on Report Stage. I do not suggest anything sinister is afoot.

Deputy Seán Power:    We know that.

Deputy Charles Flanagan:    If it were not for Deputy Rabbitte, we would not be having this discussion.

Deputy Seán Power:    We will make available the case references if anyone wishes to follow them up for their own benefit. If we can provide additional information, we are more than happy to do that before Report Stage.

Chairman:    I will put the question.

Deputy Noel Treacy:    Before the Chairman puts the question, I presume if we pass this measure that, in respect of a District Court, a summons will be served, a case heard, and a decision arrived at without any record other than the decision.

Deputy Seán Power:    That is correct.

Chairman:    To use the legal jargon, each appeal is heard ab initio.

Deputy Seán Power:    That is a good Galway expression.

Deputy Charles Flanagan:    If that is the object of today’s exercise, why bother with the roll-out of a recording system? What we are saying is that there should not be a need for any type of recording. In fact, any type of recording in use need not necessarily be there at all.

Deputy Seán Power:    That is a matter for the Courts Service. I will discuss the matter with my colleague, the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, and with the Attorney General. If there is further information that will assist, we will be more than happy to provide it.

Deputy Pat Rabbitte:    There were many contradictions in the little discussion we had about it. I do not submit that it is the most important matter in the Bill and, as I stated at the outset, I opposed the section purely to find out the thinking behind it. If every case, on appeal, is considered de novo, as Deputy Flanagan stated, I do not know why we want to rule out IT capacity across the District Courts. There could be other good reasons. I am happy to proceed along the route suggested by Deputy Treacy. I will oppose the section again on Report Stage, during which the Minister of State might have a coherent note on why it was inserted in the Bill in the first place.

Question put and agreed to.

Section 51 agreed to.

Deputy Seán Power:    I move amendment No. 54:

This amendment provides for the possibility of anonymity in civil cases for certain witnesses who have a medical condition which, if publicised, would cause them undue distress. The possibility of anonymity extends under the proposed provision to either party as well to other witnesses. Section 181 of the Criminal Justice Act 2006 provides for anonymity for witnesses with a medical condition in criminal trials where their identification as persons with that condition would be likely to cause undue distress to them. When the inclusion of this provision in the Act was being approved, the Minister’s predecessor indicated that a parallel provision should be included for civil proceedings through civil law legislation. This amendment follows the provisions of the Criminal Justice Act with suitable adjustments.

As with the provisions for criminal proceedings, the new section proposed provides that the judge can refuse to grant an application if he or she considers it would not be in the interest of justice. Only parties to the proceedings can make an application for an order under this provision, although a witness may have the medical condition in question. This should not create a difficulty since the witness will have been called by one party or another and it will be in the interest of that party to make the application. This mirrors the position in criminal proceedings, in which only the prosecution and defence may make an application.

Deputy Charles Flanagan:    I accept what the Minister of State said. I did not have an opportunity to compare the provision with that for criminal law. Is the Minister of State confirming that the provision proposed for civil law is the practice in criminal law, that the wording is much the same and that the import is exactly the same?

Deputy Seán Power:    Yes.

Chairman:    Is it agreed that the new section be inserted?

Deputy Seán Power:    Work is well advanced on the development of a provision that would permit anonymity in civil cases where the person is or alleges that he or she is the victim of rape or other serious sexual assault offences. The intention is to mirror the rules of anonymity that apply in the criminal law context in civil cases. We expect this provision to be included by way of a Report Stage amendment.

Amendment agreed to.

Section 52 agreed to.

Deputy Seán Power:    I move amendment No. 55:

Amendment No. 55 deals with section 40 of the Civil Liability and Courts Act 2004. The section proposed eases the in camera rule that applies to a broad range of family law proceedings. The amendment is to ease the practical work of those who have been approved for the reporting of family law proceedings under section 40. It achieves this by ensuring the court reporter has access to relevant documents. Such access is often essential for proper understanding of the case which might not readily be gained simply by sitting in the court room listening to the proceedings. It is in the public interest that those responsible for producing reports in these cases can do so in a balanced and complete way. This amendment, by removing any doubt whether the present section encompasses access to essential grounding documents, will help to achieve this.

One can hardly address the subject of family law reporting without referring to the important work of Dr. Carol Coulter whose year on a pilot project in this area ended recently. Her interim report on various aspects of what actually happens in family law cases has provided a welcome insight into this area of the law. There necessarily must be balance between the public interest in having law administered in public, on the one hand, and, on the other, the privacy of individuals engaged in litigation in which the very personal and intimate details of their lives, together with the sensitivities of children, are under court scrutiny. Dr. Coulter has produced a final report on her year’s work. It contains a range of recommendations both on the reporting question and on wider aspects of family law. The Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, recently met Dr. Coulter to discuss some of these recommendations and was very interested in the matters raised. The Chief Justice is forming a committee to make progress on the recommendations. We are also pleased that the periodic reports produced by Dr. Coulter during her year’s work will continue to be produced for some time into the future.

Deputy Charles Flanagan:    I welcome this amendment. I probably will have an opportunity to discuss the important consequences of the Coulter report during the plenary session of the Dáil. Some discussion time was set aside over recent weeks but the schedule was changed at short notice owing to the budget or legislation. Rather than engaging in any discussion of a protracted nature today, I ask that the Minister of State contact the Whip’s office on behalf of the committee to ensure we will have an opportunity to debate the report early in the new year. As the Minister of State said in the context of family law, the report has highlighted inadequacies in the administration of justice of a significant and serious nature.

Deputy Seán Power:    I will be happy to discuss the matter with the Chief Whip and I am sure he will be happy to facilitate the Deputy’s request.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 56:

This amendment is designed to allow for an additional three judges of the District Court as part of the Government’s strategy to address youth justice issues. The intention is that it will enable more District Court judges to be available to deal with cases that need to be dealt with under the Children Act 2001. That Act contains several important provisions regarding the relationship between young offenders and the law. In particular from the point of view of the court proceedings it requires that District Court judges must, before acting as judges in the Children Court, have undergone whatever relevant training courses the President of the District Court considers necessary. The Children Court is the title given by that Act to the District Court when hearing cases involving young accused persons.

The powers of the court in dealing with such cases are extensive and targeted. There is the possibility of involving the child welfare functions of the Health Service Executive and the parents in the matter by, among other things, the use of family conferences convened by the probation and welfare officer, the development of action plans for particular children, special conditions for bail and a range of other processes and powers designed to follow through the principle that where a child accepts responsibility for his or her criminal behaviour every effort should be made to divert the child from future criminal behaviour.

In deciding to seek the approval of the Oireachtas for this amendment the Government is conscious of the need for a dedicated cohort of District Court judges to service the needs of child offenders. Other necessary resources to meet these needs by way of Garda juvenile liaison officers and additional probation and welfare officers are also on stream.

Deputy Charles Flanagan:    Will these judges be specifically appointed to work in the Children Court? If so I welcome the amendment. It is often the case that appointments to the Children Court or the Drug Court are temporary and that people sit in from time to time to clear backlogs. Will the Minister of State confirm that these will be permanent rather than roving appointments?

Deputy Seán Power:    After their initial training these judges will be assigned and dedicated to the Children Court.

Deputy Noel Treacy:    Will that mean that they serve a minimum time in the Children Court or a maximum period or will they be permanent?

Deputy Seán Power:    It is not clear at present. They will undergo special training and then be assigned to the Children Court.

Deputy Noel Treacy:    This is a sensitive area because there have been horrendous crimes against minors. If judges are trained to deal with that they should serve a minimum of three years in that court.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 57:

This amendment reduces from five years to four the length of time a solicitor needs to have been a fully qualified and practising practitioner before taking on a trainee. The expectation is that this will provide more opportunities for newly qualified apprentices to obtain the on the job training requirement without reducing the quality of the training. The Law Society fully supports the amendment.

Deputy Charles Flanagan:    The real reason for this is that there are so many people coming into the system that it is not possible for many of them to gain apprenticeships. This counteracts the popular concept that the solicitors’ profession is a closed shop. The numbers are increasing dramatically. I welcome the amendment for this reason.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 58:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 59:

Amendment agreed to.

Section 53, as amended, agreed to.

Section 54 agreed to.

Deputy Seán Power:    I move amendment No. 60:

This amendment provides for an order of the solicitors disciplinary tribunal to be enforced by the High Court which appoints that tribunal under the Solicitors Act to investigate allegations of misconduct on the part of solicitors. The amendment allows the Law Society to apply to the High Court to make an order that the order of the tribunal be complied with in whole or in part. The amendment will fill a perceived lacuna in the current legislation which has no such provision.

Deputy Pat Rabbitte:    I intervene on this amendment because the Chairman has ruled out amendment No. 61 in my name which is on a related area. I do not normally disagree with the referee but I believe the Chairman’s ruling is harsh in claiming that it may incur a potential charge on the Exchequer. I merely sought to address the issue of costs incurred due to negligence. Will the Chairman be kind enough to explain his decision? It is a severe judgment because my amendment allows a fallback for the inquiring solicitor, where he or she has been appointed to examine the issues for which he or she should be paid. The amendment states, at subsection 3(c):

It is not clear from the amendment that there would be any charge to the Exchequer. I was merely providing for the situation where if a solicitor messes up the client is forced to pay. I am not talking about the large cases currently in the media, which thankfully are in a minority. There are, however, serious cases where clients have been cheated.

The Master of the High Court, Edmund Honohan, SC, was overruled on his judgment on whether he had jurisdiction and the test of gross negligence or misconduct been required. My amendment seeks to moderate this and give jurisdiction to the Master of the High Court in certain cases.

The current cases in the media are very much the exception. As Deputies, we often encounter cases of helpless and hapless clients who are finding difficulty with their solicitors and do not feel they have meaningful redress. Even the business of persuading a solicitor to act against a colleague or wrest the file from him or her can be very difficult in certain circumstances.

Deputy Seán Power:    Only in politics.

Deputy Pat Rabbitte:    Perhaps there is a parallel. We must face our own tribunal on that — the people.

I am not opposing amendment No. 60 but wider issues are raised by the question of misconduct. It may be a small number of solicitors but it is a serious matter for their clients. I do not know how it will work out for those clients in the current cases in the media. However, in the more minor cases it is difficult for clients to get meaningful redress.

Chairman:    Before I call on the Minister, I will deal with Deputy Rabbitte’s query about my ruling out of his amendment No. 61 after we have disposed of this amendment.

Deputy Noel Treacy:    I support Deputy Rabbitte’s comments. As a politician for a good few years, I have encountered many constituents who have experienced frustration with solicitors. Many had their cases with solicitors for long periods. When the final awards were made, many found their legal costs were massive and they did not receive the amounts they expected. I have had other cases of people seeking redress and professional representation against a lawyer but could not get a solicitor in Connacht to take their case.

I accept there are sometimes vexatious and nuisance reasons in many complaints but the majority are sincere. It is frustrating as legislators and representatives that we cannot give any support to people in such cases to bring a sense of justice to their complaints. It is a matter that needs further consideration.

Deputy Charles Flanagan:    I share these concerns. The nub of the argument is to have a system in which there is public confidence. The current system does not inspire public confidence, which is why we agreed to delete a section to allow the Minister to introduce a new Bill to deal specifically with legal complaints through an ombudsman. It will allow for transparency that does not exist.

It is important, however, we distinguish between acts of gross negligence and misconduct. In either of those situations, there needs to be a system in place which will give rise to a speedy resolve on the part of the complainant or client. I do not believe the matter will be fully addressed by this amendment, or amendment No. 61 if it was valid. We must await the new legislation and ensure a regulatory system, separate from a representative system, is put in place. All parties and both professional bodies engaged in the provision of legal services are in agreement that the days of regulating and representing are gone and that there is a clear unsustainable conflict. We want a system that will give rise to an element of comfort to those who complain to Deputies. The current arrangements cannot continue because there is no public confidence in it.

Amendment agreed to.

Chairman:    I thank Deputy Rabbitte for his question on the ruling out of amendment No. 61. While it is not for me to comment on the merits or demerits of an amendment, I have empathy with the proposal but it needs to be considered in the wider context of more detailed legislation. Leaving that aside, in my view it must be ruled out of order because it seeks to provide that solicitors appointed to take part in certain inquiries may be paid out of moneys provided by the Exchequer. Standing Order 151 is very clear on that. It is not a question of whether it would or how, is likely or unlikely, but rather whether it has potential. The wording of the Standing Order is whether it could involve a charge on the Exchequer. Subsection (c) states clearly that it could involve the making of an order that would require the disbursements of public moneys. For that reason I believe there can be no alternative to this strict interpretation of the Standing Order. I therefore rule it out of order.

Deputy Pat Rabbitte:    I do not normally dispute referees’ decisions, so I accept the ruling. Can the Minister of State indicate whether it is a waste of my time to try and redraft it for Report State or whether he is saying it is more appropriate to the legal services ombudsman Bill?

Deputy Seán Power:    I would not discourage the Deputy from redrafting the amendment. The forthcoming legal services ombudsman Bill will help improve public confidence in the whole complaints process. As regards the issue of legal costs in contentious cases, generally, that question is being addressed by the Department. By “contentious” is meant the legal services provided, or work done in connection with proceedings before a court. The work is intended to address concerns about the costs associated with civil litigation and the intention is to bring forward practical proposals to help address the situation.

The issue of legal costs, generally, has been the subject of much scrutiny in recent years. In December 2005 the report of the legal costs working group, chaired by Mr. Paul Harran, the former Secretary General of the Department of Enterprise, Trade and Employment was published. Broadly speaking, that report recommended the replacement of the existing taxation of costs by a new system of legal costs assessment. A group set up by the Department to advise on the implementation of that report and to consult with the professional legal bodies has completed its deliberations. Officials in the Department have commenced work on the drafting of a Bill to reform the manner in which disputed legal costs are assessed with the allied objective of making the market for civil legal services more predictable, consistent and transparent to consumers.

It is the intention of the Minister that the Bill will provide for significant improvements in the quality and quantity of the information a solicitor is required to provide to clients and the manner in which it is to be supplied. I am firmly of the view that the individual litigant should have a central role to play in controlling his or her legal costs. How the litigant can be so empowered will be addressed in the Bill. The timely provision of information to clients is central to this empowerment. The Minister proposes to have a new assessment of costs system, which is part of its remit, providing information to the public on the law and on clients’ entitlements relating to costs. The new system should have a mechanism to collect, analyse and publish data in relation to costs, counsel fees, witnesses’ expenses and other disbursements from all court jurisdictions. Finally, the Bill will provide for legislative and procedural changes to reduce delays in court hearings and generally expedite the whole legal process.

The issue of cost penalties for delays or costs incurred due to negligence can be addressed in the context of the legal costs Bill and this will provide an appropriate opportunity to consider the issue. In the circumstances we do not accept what is being proposed.

Deputy Pat Rabbitte:    It is useful that the Minister of State has put this on the record and we shall have a look at that before Report Stage.

Amendment No. 61 not moved.

Question proposed: “That section 55 be deleted.”

Deputy Noel Treacy:    Was a section not substituted for it?

Chairman:    Yes, but I do not know which one.

Deputy Noel Treacy:    It was section 18.

Deputy Pat Rabbitte:    Can the Minister of State advise us as to why it is being excised and whether the intention is to bring forward something better?

Deputy Seán Power:    Since the Bill was published in 2006, a thorough examination of an important aspect of gaming has been carried out by the casino committee. The casino committee report is a lengthy document which deals with a range of complex and interrelated public policy matters. The report is being studied within the Department of Justice, Equality and Law Reform and will shortly be brought to Government. In the light of this, the Minister is of the opinion that it would be sensible to examine that report’s findings and recommendations in a more holistic manner, taking into account the Gaming and Lotteries Acts as they stand at present. Accordingly, I propose to delete sections 55 and 56, the sections amending the Gaming and Lotteries Act 1956 from this Bill as they would sit better in any proposed amendment arising out of this overall review.

Question put and agreed to.

Section 56 deleted.

Deputy Seán Power:    I move amendment No 62:

Amendment agreed to.

Question proposed: “That section 57, as amended, stand part of the Bill.”

Deputy Pat Rabbitte:    We are discussing section 57 and we are coming to section 58, on landlord and tenant issues. These sections require more attention than I have given them to date. I wish to give notice that I might want to raise certain questions in respect of these sections on Report Stage. In passing, I want to refer to correspondence that I believe members of the committee will have received. It was sent to the Taoisech and referred to the Minister of State. It posits one particular case, the answer to which I am not entirely clear on from the legislation. This is correspondence from a businesswoman, who has a small business in the north inner city of Dublin and who is being confronted with eviction, essentially. Whereas she wants to stay in the premises and the landlord wants to permit this, the fact is she would have an automatic right to a 20-year lease. The Minister for Justice, Equality and Law Reform replied to her to the effect that this Bill would make it possible for tenants to contract out of the relevant provisions, such as she finds herself affected by.

I raise this in the sense that I do not know whether it is the Minister’s intention or expectation to refer this Bill on Report Stage to the Seanad and complete it in the calendar year 2007. As I understand it from this businesswoman, she is not alone and that if the Bill were not finalised this year, it would be too late for her. She would be turfed out at the end of this year. That is a particular question, but I should like to hear the Minister of State’s note as regards this section because there is a fundamental inequality in the bargaining power between a landlord and tenant as the law stands. Having only recently focused on those two sections, I get the impression that the position of the tenant will be further eroded after enactment if we were to enact these two sections. I would certainly like to hear the Minister of State on that. I cannot see what benefit accrues to the tenant in Part 6 of the Bill. It seems to me that the benefits solely accrue to the landlord in all cases.

It is an area of law and I found it difficult to get my head around this Bill because it deals with so many different areas. It is a bit of a pot-pourri of this and that. What caused these two particular sections to be inserted? Has there been some recent case law or representations made by someone? What is the purpose of it in the terms expressed in the section? I am having difficulty coming to grips with it.

Deputy Noel Treacy:    I support Deputy Rabbitte in what he has said. We received this documentation from a woman whose company had a very unusual name. It would be very sad if this business went to the wall because the leasing arrangements would give us certain rights which the landlord would not be able to accept. A similar example occurred with a colleague in another constituency. He had rented an office, the landlord was happy to leave him there and he was happy to stay there. The landlord knew that when he reached retirement or if the national jury decided that he was no longer fit to serve them, then he would not be staying there. It was very hard to find a formula and the landlord had to form a new company and create a new sublease to accommodate him. It was tenuous enough whether the politician would win if he wanted to pursue his rights, even though changes were made.

If we could clarify the situation, strengthen the law and make it simpler, that would help everyone. It is very important we protect property rights. There is a strong constitutional provision and the Minister of State might write a note on the legal impact of leasing and renting for three years, nine years, 33 years, 99 years or whatever, so that we as legislators know where we stand on the situation. It would assist us if we had that note for Report Stage. It is a serious problem and it needs to be addressed. If we can do it on this Bill, then we should do it.

Deputy Pat Rabbitte:    One of the reasons I did not pick up on the significance of this is that one would never do so from the explanatory memorandum. There is a glancing paragraph at the top of page six of the explanatory memorandum that rolls in sections 57 and 58. One would be hard put to divine the meaning behind the whole thing. That is not supposed to be the role of the explanatory memorandum. For those of us not dealing with it on a weekly basis, the role of the memorandum is precisely to explain the Bill to us. I would like to hear the Minister of State on this.

Deputy Seán Power:    Deputy Rabbitte is probably in a fortunate position because he has had a few weeks to deal with this Bill. I take on board what he has said. The purpose of these amendments is to enable parties to a business tenancy to contract out the provisions of Part II of the 1980 Act, which is the right to a new tenancy provided that the tenant or would-be tenant has received independent legal advice. The provision draws upon section four of the Landlord and Tenant (Amendment) Act 1994 and section 191 of the Residential Tenancies Act 2004. Unlike the provision in the 1994 Act, the ability to contract out is not confined to cases where the renunciation has been completed prior to the commencement of the tenancy. This is a deliberate policy choice as it is intended to facilitate existing business tenants who, in the absence of an ability to renounce their statutory right to a 20-year tenancy, might face eviction as the period of five years after which the right accrues draws to a close.

The Minister is anxious to ensure this provision is enacted as soon as possible, but the possibility of getting the Bill through the Dáil and the Seanad this side of Christmas is remote. We will talk to the Whips but I cannot see how it is possible.

Deputy Pat Rabbitte:    Would it be possible for us to construct an amendment for Report Stage that would make the provisions herein retrospective to a current date?

Deputy Seán Power:    The Minister is also including a similar amendment to the Land and Conveyancing Law Reform Bill 2006, which is also before the Oireachtas but at a more advanced stage. Whichever Bill passes first, the amendment can then be deleted from the later Bill.

I presume the case to which the Deputy refers was in the Sunday newspapers.

Deputy Pat Rabbitte:    Yes.

Deputy Seán Power:    From what I gather, that lease expires this week.

Deputy Pat Rabbitte:    That is correct.

Deputy Seán Power:    Deputy Rabbitte’s interpretation of what we are proposing here is that it confers even more rights on the landlord. The position is that if this legislation were in place, that woman could continue on with her business.

Deputy Pat Rabbitte:    That is what we are seeking to achieve. It seems to me we are accepting that although that is the purpose of the section, it will not achieve that purpose in the case of persons in her situation this calendar year. My query is whether an amendment can be drafted for Report Stage that would make these relevant provisions retrospective to a current date in December.

Chairman:    The right accrues before the legislation is passed.

Deputy Seán Power:    With the best of intentions, I do not think there is anything we can do in this assembly that could assist her in her case if the lease expires this week. Following on from Deputy Treacy’s point, we will get whatever background information is required.

Deputy Noel Treacy:    The information sought is the current law on both leasing and renting, the specific periods involved and the impact that they have.

Deputy Seán Power:    We will arrange to have that done in the Department and circulated to committee members.

Deputy Pat Rabbitte:    Given the butchery that we have wreaked on the Bill this morning with all the excisions, it is not exactly mind-shattering in its remaining content. It might be possible for us to facilitate an early passage through the Seanad. I know the Senators are overworked and worn out from legislating, but they might well facilitate it.

Deputy Seán Power:    That is a matter for the Whips. If they can agree on that, we would be more than happy to co-operate with them. I am not sure what their schedule is for the end of this week or next week.

Deputy Charles Flanagan:    This is the problem with a Bill that is entitled a miscellaneous provisions Bill. It has been part of the practice in both civil and criminal law that every second year, somebody in the Department with a hoover becomes active. Anything that is lying around requiring attention goes into a miscellaneous provisions Bill. This is the opposite to what we want when we frequently call for a codification of the law because of the complexities and the need for a handy or precise interpretation. We have taken so much out of the Bill that this will be perhaps the most important aspect of it. I felt there was an urgency in the Department that matters would be dealt with before the end of the year and that this was one of the areas that required clarification or an element of redress. Against that, these sections should not be in the Bill. I would prefer if they were included not in a miscellaneous provisions Bill but in a conveyancing Bill, because that is where they would be most at home.

I am mindful of Deputy Rabbitte’s contribution. If there are people awaiting the type of redress envisaged in these sections, we should find out whether we can facilitate tenants such as the one whose case has been outlined. If we complete our deliberations, the Chairman might recommend that, given the urgent form of redress contained in the sections, the Bill would complete Report Stage in the Dáil next week and then go on to the Seanad. However, there are practical difficulties which have been referred to by the Minister.

Do I take it the law has allowed that, even if it is not in writing, one is entitled to a business tenancy, be it a 20 or a 35 year tenancy with five year reviews, and that we are giving legal effect to the contracting out of such an arrangement, provided there has been independent legal advice? I would have thought there would have been independent legal advice in most cases. Why is there a necessity to write this into the legislation?

The measure may have unforeseen consequences, notwithstanding what has been said with regard to individual cases highlighted. For example, I can foresee a VAT consequence, which probably has nothing to do with this committee. Anyone who is to benefit from the Bill should be advised to take financial advice because there will be VAT liabilities on commercial leases that may be rewritten or subjected to contracts of an amended nature. While that is for individuals to consider, I feel the consequences of this might be greater than those contained in the note and not as obvious as we might think. This makes it difficult for me to argue for a speedy passage.

This results from the unsatisfactory nature of sticking into a miscellaneous provisions Bill a change to landlord and tenant law and not having it as part of a conveyancing or landlord and tenant Bill. It is unsatisfactory and will give rise to difficulties of a type I hope can be dispelled by ministerial review.

Deputy Noel Treacy:    I support my colleagues. If we can slim up and tighten up this legislation and then put it to bed, we could have it circulated tomorrow. Report Stage next week should not take long, and we might be able to at least assist in one case, which would make a contribution this year.

Deputy Seán Power:    As I mentioned earlier, the Minister, Deputy Brian Lenihan, was anxious to ensure this provision would be enacted as soon as possible. For that reason, he also included a similar amendment to the Land and Conveyancing Law Bill. I share members’ concerns and do not think there is much disagreement with what Deputy Flanagan has said. Whichever Bill passes first, the amendment will be—

Deputy Pat Rabbitte:    Why does the Minister keep referring to that? Am I losing my balance? The Minister of State made some reference to the Land and Conveyancing Law Bill being further progressed. This is not the case. We have only finished Second Stage and it has not yet gone to Committee Stage.

Deputy Seán Power:    It has been already through the Seanad.

Deputy Pat Rabbitte:    Did it come to us from the Seanad? Nonetheless, it has not gone to Committee Stage in the Dáil.

Deputy Noel Treacy:    It has not been debated on Second Stage in the Dáil.

Deputy Pat Rabbitte:    It has, but Committee Stage has not been debated and it will be of no benefit in this regard.

Deputy Seán Power:    It depends on how one wants to take it. The fact it has been through the Seanad is a close equal. It is just a matter of interpretation.

I make the point that under the Landlord and Tenant Act 1980 a business tenant who has a tenancy for five years or more is entitled to a renewal of that tenancy for a further 20 years. As a result, many potential landlords offer leases of only four years and nine months to potential business tenants. In 1994 this rule was varied for office tenancies, such that the tenant could opt out of this right to an extended tenancy. We are now proposing to give this possibility to other business tenants. The opt-out is always subject to the tenant getting legal advice on the matter.

With regard to what members have said on the legal implications, such as with regard to VAT, I will try to get further detail from the Department and pass it on to members.

Chairman:    By way of clarification, the reasoning behind this, funnily enough, was that tenants of offices for some reason were more conversant with the provisions of the Landlord and Tenant Act as distinct from tenants in business lettings, who may not have been quite so familiar with their rights. It will assist people given that they now know to seek advice. After that, it is a matter for commercial judgment.

At this stage, unless there are other contributions, we need to put the question.

Deputy Pat Rabbitte:    The only point I would repeat is that if we proceed, when we next see the Bill, devoid of the various sections we have excised, it will be a slim enough effort and would not take much time on Report Stage in the House. It is not an insurmountable task for us to complete it if the will exists.

Deputy Seán Power:    I will make contact with the Whip after we have concluded our business. If the case to which Deputy Rabbitte refers is the one of which I am thinking, I gather that the lease expires this week and, whether we stand on our heads here, we will not be able to assist with the position in which that person finds herself.

Question put and agreed to.

Deputy Seán Power:    I move amendment No. 63:

Amendment agreed to.

Section 58, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 64:

This is a purely technical amendment. The words being deleted need no longer appear since the Interpretation Act 2005 came into effect. The phrase, “member state” on its own means a member state of the European Union unless the context otherwise requires.

Amendment agreed to.

Section 59, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 65:

This amendment relates to the Statutory Declarations Act 1938, an Act that has fulfilled an important role in the lives and transactions of many people over the years. The provision already in the Bill extends the scope for use of statutory declarations by enabling those who wish to make one to identify themselves by a passport or other similar reliable document. This is in ease, in particular, of the growing number of foreign nationals who wish to conduct business under Irish law such as, for instance, buying a house, but who may not know any of the persons qualified to witness statutory declarations.

The amendment before the select committee also has a foreign dimension. It offers a number of alternative ways to people abroad to make a statutory declaration that complies with our legal requirements. It is modelled on a provision at section 6 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006. That provision introduced a number of ways for the making abroad of statutory declarations that fulfil the requirements of the Companies Acts. It is now proposed to apply those additional ways to the making abroad of statutory declarations for any other purposes of Irish law.

The techniques available will now include the following methods. First, the existing process, whereby the declarant can make the declaration before an Irish diplomatic or consular officer in an Irish Embassy or consular mission abroad will continue. This is preserved specifically at subsection (2) of the new provision. Next, it will be possible to make a valid statutory declaration abroad before a person qualified under the present Act to be a witness. This is the effect of the new subsection (1)(a). Finally, it will be possible to use whatever the local equivalent process may be to the solemn business of making a statutory declaration as it exists under Irish law. This is the effect of the new subsection 1(b). If the country where the declaration is made is a party to the relevant EC convention or Hague Convention dealing with authentication of documents, the processes in the appropriate convention can be used to verify the declaration.

Deputy Charles Flanagan:    This is probably an important amendment. Had I read it closely, I would have tabled an amendment to the effect that it would be important that the person before whom the declaration is made would have particulars of a telephone number or contact details impressed on the declaration. Were verification ever needed, it would be important to avail of more modern technological appliances than paper. I would have imagined that to ensure compliance, the person before whom a declaration is made would be asked to provide a telephone number on a stamp or on an insertion. Consequently, it could be verifiable in a manner that people do not expect at present. I make this point to the Minister of State in order that someone in the Department could investigate it.

Deputy Noel Treacy:    I support both the amendment and Deputy Flanagan’s suggestion. A parallel requirement for Irish citizens who buy properties internationally and who are obliged to acquire verification here now happens frequently. However, only one small cadre of staff in the Department of Foreign Affairs can supply such verification.

I refer to locations where we do not have permanent diplomatic missions, that is, where we have honorary consuls and other appointed people. I presume that when this amendment is passed into law, such individuals will be able to execute such certifications instead of permanent embassy staff. While I do not like overburdening a busy Department, the Minister of State could put together a note for members on peace commissioners, commissioners for oaths and notaries public because many citizens now approach members seeking certification for foreign investments. Members find it cumbersome to get certification because it can be done only in the capital city.

Deputy Seán Power:    The Government is trying to help and ease the entire process in this regard. I take on board Deputy Flanagan’s suggestion and will ask the officials to consider it.

Deputy Noel Treacy:    Does the provision cover honorary consuls?

Deputy Seán Power:    Yes.

Deputy Noel Treacy:    Good.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 66:

Amendment agreed to.

Section 60, as amended, agreed to.

Section 61 agreed to.

Deputy Seán Power:    I move amendment No. 67:

The Judicial Appointments Advisory Board’s annual reports of 2002 and 2003 recommended the amendment of section 22 of the Standards in Public Office Act 2001 to provide that the duration of the validity of the tax affairs statutory declaration, provided by applicants for judicial office, be extended from one month to three months preceding the date of the Judicial Appointments Advisory Board’s recommendations. As the law stands, that declaration must be made not more than one month before the date of the board’s recommendation of the applicant. In practice, the secretary of the board seeks the declaration in advance of a board meeting and this short timeframe continues to cause administrative difficulties. This amendment, which extends the period of validity of the tax affairs statutory declaration, is a practical solution to this difficulty.

Deputy Pat Rabbitte:    This measure seems sensible. I agree with the amendment and have no difficulty with it. As the Standards in Public Office Act 2001 is being amended, perhaps members should take the opportunity to deal with the specific recommendation that was made in the last report of the Standards in Public Office Commission that it should have the power to initiate investigations instead of waiting for a Member of the Oireachtas or a member of the public to make a complaint to it. This issue should be considered before Report Stage.

Deputy Noel Treacy:    While I may be wrong, my interpretation is that once one has a tax clearance certificate, it is legally binding and has the force of law for at least 12 months from its date of issue. I presume this will still prevail, regardless of whether one seeks judicial office, public office or is simply an ordinary citizen going about his or her business.

Deputy Seán Power:    Deputy Rabbitte’s proposal is more a matter for the Minister for Finance than for the Minister for Justice, Equality and Law Reform. However, I take his point and will bring it to the attention of the Minister for Finance.

Amendment agreed to.

Chairman:    Amendment No. 68 is in the name of an tAire. As amendments Nos. 69 and 70 are related, amendments Nos. 68 to 70, inclusive, will be discussed together.

Deputy Seán Power:    I move amendment No. 68:

These amendments make changes to sections 11 to 13, inclusive, of the Juries Act 1976. At present, section 11 of the Juries Act requires a county registrar to draw up panels of jurors for each court jurisdiction separately. The proposed amendments will allow for a county registrar to draw up panels of prospective jurors for more than one court, if needed. This is in accordance with the recommendation made by a committee established within the Courts Service to review jury selection and service. This change is of particular relevance in light of the recently-introduced practice whereby the Central Criminal Court sits at venues outside Dublin, as well as the plans for the new criminal courts complex in Dublin, which will be a multijurisdictional venue. The amendment to section 12 of the Juries Act 1976 is consequential and allows for the summoning of jurors to a reception area separate from the actual courtroom, both on their initial attendance in response to the summons and when they are not immediately assigned to a jury on subsequent days as directed by the court or, as appropriate, by the county registrar.

The amendment to section 13 of the Juries Act 1976 allows for a member of staff other than the registrar or officer acting as registrar who has been authorised by the chief executive officer of the Courts Service to certify failure by a person to attend for jury service. At present, if a person who has been summoned to jury duty in a particular court fails to answer when the registrar or acting registrar calls that person’s name, that is evidence that this person failed to comply with the summons. This amendment extends this provision to allow another duly authorised member of staff of the Courts Service to check that the person summoned to attend has complied. This is to allow greater efficiency in deployment of staff for the process of summoning a jury.

Deputy Noel Treacy:    Speaking of juries, there is some anecdotal evidence to suggest that the membership of juries is made up of people who would not have been born in Ireland and who would sometimes be domiciled here for a short period. I am not sure what the actual regulations pertaining to juries are but this is something at which we need to look very seriously. In respect of the appointment of forepersons of juries, we should ensure that a person on a jury should be domiciled on the island of Ireland for at least ten years and would, I hope, be a citizen of the country. I am not sure what the mix or situation is but there have been enough celebrated cases in the past that involved a very mixed jury, some of whom may not have had great experience of the island of Ireland. This is something at which we need to look.

Chairman:    Are there any further contributions?

Deputy Seán Power:    Jurors are selected randomly by computer from the register of electors. I take the point made by the Deputy.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 69:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 70:

Amendment agreed to.

Deputy Pat Rabbitte:    I move amendment No. 71:

In keeping with my party’s reputation for political correctness, we ought to remove the discriminatory bar that disqualifies a citizen after he or she has reached the age of 70 and change it to the term in amendment No. 71. This amendment provides that so long as the person is not incapable by reason of infirmity, he or she can serve on a jury if he or she is over 70 years of age.

Many older people take an interest in and have time available to them to serve on juries. If our betters on the bench can serve until they are 72 years of age, why ought a citizen who is fully compos mentis be excluded from jury service purely because he or she reaches the age of 70?

Deputy Seán Power:    In my previous role I had responsibility for services for older people so I can see great merit in Deputy Rabbitte’s amendment. We would all agree that older people are playing an increasingly active part in society at much more advanced ages than was previously the case. When we look to Northern Ireland and see the contribution that Dr. Ian Paisley is making, it brings home to us that the fact that a person reaches a certain age—

Deputy Pat Rabbitte:    Is the Minister for State recommending that Dr. Paisley would serve on juries and not here?

Deputy Seán Power:    One sees the difference Dr. Paisley has made. If he was not around, I am not sure what progress would have been achieved. There is considerable merit in what Deputy Rabbitte has said. I will give the matter serious consideration and we will revert to the Deputy on Report Stage.

Deputy Charles Flanagan:    The praise for Dr. Paisley from Fianna Fáil only came after he reached the age of 80, which, in itself, is quite remarkable.

Deputy Noel Treacy:    However, it was a new beginning.

Deputy Charles Flanagan:    It is an important point because we can ensure the availability of persons, be they citizens of any age or description, to serve on juries. Experience shows that people are becoming more and more reluctant to engage in the civic duty that is jury service. The number of people who wish to offer any reason or excuse, be they busy or otherwise, in order to avoid serving on a jury is increasing. Perhaps we should review entirely the manner in which we recruit for jury service, the duties of the juror and the role and function of those who serve on juries. This is an important aspect of that and I would be supportive of the amendment.

Perhaps we need to look at some form of compensation for people who might give of their time and lose business to serve on a jury, which, unfortunately, is no longer regarded as the public service or civic duty that perhaps it should be or that it was for many years. As part of an overall review, this amendment in the name of Deputy Rabbitte is eminently sensible and should be looked at seriously.

Deputy Seán Power:    We will give it serious consideration but I remind members that a few months ago, the retired Supreme Court judge, Catherine McGuinness, expressed her concerns that juries should reflect the community to ensure the constitutional right to a fair trial. We do not disagree with the contributions that have been made.

Deputy Pat Rabbitte:    I am doing no more than arguing that there ought not be an arbitrary cut-off point, that there ought to be a more flexible test and that capable and informed senior citizens ought to be enabled to perform their civic duties. If that is by discharging their role on a jury, so be it.

Deputy Finian McGrath:    I strongly support Deputy Rabbitte’s amendment. I support the principle of not excluding people, particularly elderly people who are of sound mind and body, in respect of the major positive contribution they can make to any State or jury. It is a very positive amendment and I am pleased the Minister will look at it very favourably. We have gone past the day of discriminating against people because of their age. That debate is over as far as I am concerned. Many people, particularly senior citizens, want to make a contribution to society. This would be one role for them so I would be very supportive of the amendment.

Deputy Noel Treacy:    I have a technical question. I am not sure if jurors get any sustenance during their period of service. They must look after their own meal requirements. If that is not addressed they should be looked after while they are carrying out one of the most serious pieces of service anybody could give to a country.

Deputy Seán Power:    I understand that there is a contribution made towards subsistence but we will check it out. I have not come across a complaint from any juror about being neglected.

Chairman:    How stands the amendment?

Deputy Seán Power:    I am sure the Deputy is very happy with it.

Deputy Pat Rabbitte:    I accept what the Minister of State has said and look forward to him being in the curtilage of the House if his senior does not deliver on the positive vibrations coming from across the floor.

Deputy Seán Power:    Goodwill.

Amendment, by leave, withdrawn.

Chairman:    Amendments Nos. 72 to 74, inclusive, are related and will be discussed together by agreement.

Deputy Seán Power:    I move amendment No. 72:

Again, these are technical amendments which help clarify matters.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 73:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 74:

Amendment agreed to.

Section 62, as amended, agreed to.

Sections 63 to 67, inclusive, agreed to.

Deputy Seán Power:    I move amendment No. 75:

The insertion of the word “of” into section 68 is a technical amendment to clarify the text of the Bill.

Amendment agreed to.

Section 68, as amended, agreed to.

Sections 69 and 70 agreed to.

Deputy Seán Power:    I move amendment No. 76:

This is a technical amendment to the Bill.

Amendment agreed to.

Section 71, as amended, agreed to.

Deputy Seán Power:    I move amendment No. 77:

This amendment inserts a new part of the Bill to make a number of amendments to the Video Recordings Act 1989. The first of these deletes section 3(2) of the Act which prohibits the censor from granting a supply certificate in respect of a video work for which a general or limited certificate is in force. Deleting the subsection will allow the censor to refuse to grant the certificate to a film to be released on video even if it has previously been certified for cinema release. This amendment is required because video release films are more widely available and to which access is difficult to control. A film that is suitable for a controlled release in a cinema environment may not be suitable for a widespread video or DVD release.

The next amendment to section 3(4) of the same Act will ensure clarity in respect of the obligations on an applicant when submitting a video recording to the director of film classification. Section 4 of the Act is amended to include a new classification of video works, namely, persons aged 12 years or more. The opportunity is being taken to remove from the 1989 Act the provisions governing the possibility of varying the classes of video works. This is being done on foot of advice that the power to vary a primary statute by means of a statutory instrument in these circumstances may be constitutionally suspect.

The insertion of a new section 4A into the Video Recordings Act 1989 creates the offence and consequential penalties of supplying a video work to persons who have not reached the relevant age. This fills a perceived lacuna in the Act where such an offence is not currently specified. The penalties set out in the Act are lower than would now be appropriate for offences of this nature. Given the lapse of time since the commencement of the Act, it is reasonable that the fines be increased in line with inflation.

The amendment to section 31 of the Act allows the Minister for Justice, Equality and Law Reform to set a reduced fee for the censor to apply to films that he or she deems to fall into one or two categories, namely, a film that is likely to appeal only to a limited audience or a film being distributed for charitable purposes. This will facilitate the release of minority interest DVDs and videos such as art house movies, minority language or ethnic movies and so on. The current general release certification fee can make it uneconomical to release these movies. Allowing for a reduced fee will improve consumer choice and discourage illegally distributed or pirate DVDs and videos. This amendment has the strong support of the industry and industry commentators.

Deputy Charles Flanagan:    Will the Minister of State advise the committee on the number of prosecutions and convictions in this respect, including details on the regularity of same? It is a largely unenforced area.

Deputy Seán Power:    I do not have the figures the Deputy is seeking available, but I will make inquiries and revert to him.

Chairman:    Is it agreed that the new section be there inserted?

Deputy Seán Power:    We are introducing new offences in the Bill that would not have applied previously.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 78:

The amendment of sections 5 and 6 of the Censorship of Films Act 1923 increases the fines, respectively, for showing a picture in public without a licence and for non-compliance with the special conditions laid down in the granting of a limited certificate. The first amount —€2,000 — mentioned in each of the two amendments is the total amount a person can be fined under either section 5 or section 6 of the 1923 Act. The second amount —€200 — is the daily fine applicable. The amounts set in the statute have not been increased since the legislation was enacted in 1923 and are now sufficiently low so as not to be deterrents. The proposed amendments will rectify this situation.

The amendments to sections 7(2) and 7(3) of the 1923 Act include “likely to cause harm to children” as a reason for the censor to refuse to grant a certificate or grant a limited certificate to a film to be exhibited in public.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 79:

This amendment in respect of the Censorship of Films Act 1923 provides for the title of the Office of the Official Censor of Films established by that Act to be retitled the “Irish Film Classification Office”. Upon examining the process and the work of the film censor, it is clear that “classification of films” is a more accurate description of the role undertaken by that office. Subsequently, the amendment provides for the Official Censor of Films to be known as the Director of Film Classification. The Censorship of Films Appeal Board shall become the Classification of Films Appeal Board and assistant censors shall be known as assistant classifiers.

Deputy Pat Rabbitte:    Dr. John Charles McQuaid and the late Bishop Michael Browne will be turning in their graves at this impulse for modernisation at the Department of Justice, Equality and Law Reform.

Deputy Charles Flanagan:    It is fine that the official censor’s title is being changed. I note that the assistant censors’ titles will be changed to assistant classifiers. What criteria are used by the Department for the appointment of assistant censors? They are drawn from all walks of life, the only common link being that most have served as Fianna Fáil councillors or supporters to varying degrees at constituency level.

Deputy Noel Treacy:    The classification was a little higher.

Deputy Charles Flanagan:    Will that classification change? What regulations are employed to qualify a person as an assistant censor? Is it done by arbitrary ministerial appointment or does a committee or commission oversee it?

Deputy Seán Power:    It is similar to appointing the Front Bench of a political party in that the criteria can be varied in light of the qualities required. The official censor is appointed by the Minister with the sanction of the Minister for Finance. The Censorship of Films Appeal Board consists of nine commissioners, including the chairperson, who are selected by the Minister for Justice, Equality and Law Reform, hold office for five years from the date of their appointments and shall be eligible for reappointment. The appeal board can affirm, vary or reverse a decision made by the censor and its decision is final. It is a question of picking suitable people. They are well vetted.

Deputy Noel Treacy:    One wonders whether these appointments carry health warnings.

Deputy Pat Rabbitte:    Would one not want a break after five years to allow in new people?

Deputy Seán Power:    The Chinese continue into their 80s. I thought Deputy Charles Flanagan was offering himself for one of the posts but he is busy enough. That brings clarity to the situation.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 80:

75.—Section 6 (inserted by section 2 of the Parental Leave (Amendment) Act 2006) of the Parental Leave Act 1998 is amended by inserting the following after subsection (6):

This amendment provides for parents employed by the same employer to transfer all or part of their parental leave from one to the other parent, subject to the employer’s agreement. This amendment achieves what was thought to have been achieved with the amendment to the Parental Leave Act 1998 made in 2006. The 2006 amendment was found to be ineffective in achieving its aim as sought by its proponents and accepted by the Government.

Deputy Pat Rabbitte:    If two parents have a single employer and are entitled to a certain period of parental leave each, one parent can take twice the amount of leave while the other presents for work.

Deputy Seán Power:    Yes, with the agreement of the employer.

Deputy Noel Treacy:    One could stay working and the other could have the benefit of the parental leave of the one who remains working.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 81:

76.—Section 2(2) (inserted by section 6 of the Civil Service Regulation (Amendment) Act 2005) of the Civil Service Regulation Act 1956 is amended—

The Civil Service Regulation (Amendment) Act 2005 provides that civil servants may be disciplined and dismissed by the relevant authority. In the case of officers below the rank of principal officer, this is usually the Secretary General of the Department. In the case of officers at or above the rank of principal officer, it is the relevant Minister. Section 19(4) of the Garda Síochána Act 2005 appointed the Garda Commissioner the appropriate authority for civil servants attached to the Garda Síochána. This was enacted before the Civil Service Regulation (Amendment) Act and did not provide a two tier system for civil servants in the Garda Síochána. An anomaly exists in respect of civil servants transferred from an ordinary Department or office to the control of the Commissioner because any civil servant, irrespective or rank, may be disciplined and dismissed by the Commissioner. This amendment removes the anomaly by making the Minister for Justice, Equality and Law Reform the appropriate authority for disciplining or dismissal of the principal officers and higher ranks assigned to the Commissioner.

Deputy Pat Rabbitte:    In so far as it relates to the Garda Síochána, how is it different from current practice? Certain powers that were previously vested in the Garda Commissioner are now vested in the Minister.

Deputy Seán Power:    It only applies to civil servants working for the Garda Commissioner as part of the civilianisation programme.

Deputy Pat Rabbitte:    In whom rests the disciplinary authority?

Deputy Seán Power:    At present, all ranks come under the Commissioner.

Deputy Noel Treacy:    All staff come under the Commissioner once they are working for the Garda service. It concerns staff transferred to Garda stations throughout the country.

Deputy Pat Rabbitte:    I await the Minister of State’s response.

Deputy Seán Power:    The Commissioner has responsibility for disciplining or dismissing at all ranks. This amendment removes the anomaly by making the Minister for Justice, Equality and Law Reform the appropriate authority for disciplining or dismissing principal officers and higher ranks assigned to the Garda Commissioner.

Deputy Pat Rabbitte:    What higher ranks? Civilian staff at more modest levels, such as a clerical officer, would be subject to discipline by the Chief Superintendent or whomsoever.

Deputy Seán Power:    Anything up to assistant principal level.

Deputy Noel Treacy:    A clerical officer in a rural Garda station is under the disciplinary control of the Commissioner. Grades above principal officer are under the disciplinary control of the Minister. Why is there a difference? If there is a civilianisation programme transferring staff from Departments to Garda stations throughout the country, I still view them as civil servants rather than gardaí. Why is there a difference on the basis of grade once they are transferred to work in a justice environment?

Deputy Pat Rabbitte:    To protect civilisation as we know it.

Chairman:    Does that clarify matters?

Deputy Noel Treacy:    I do not understand why there is a difference. Why are principal officers and grades above under the control of the Minister, while assistant principals and grades below are not?

Deputy Seán Power:    At present, principal officers and grades above are dealt with by the Minister, while assistant principals and grades below are dealt with by the Secretary General.

Amendment agreed to.

Chairman:    Amendments Nos. 82 and 83 are related and may be discussed together.

Deputy Seán Power:    I move amendment No. 82:

77.—The Family Law Act 1995 is amended—

The purpose of this new Part of the Bill is to amend provisions in the Family Law Act 1995 and the Family Law (Divorce) Act 1996 relating to the registration of property adjustment orders and the limitation period for challenging transfers or conveyances of property. Regarding property adjustment orders, section 9 of the Family Law Act 1995 provides that on granting a decree of judicial separation, the court may make a property adjustment order. Section 9(4) of the 1995 Act provides for the lodgement of a copy of such an order in the Land Registry for registration under section 69 of the Registration of Title Act 1964. Similar provisions are contained in section 14 of the Family Law (Divorce) Act 1996. These provisions are broadly similar to provisions relating to the registration of restraint orders with the Land Registry under section 25 of the Criminal Justice Act 1994 and the registration of interim and interlocutory orders under section 10 of the Proceeds of Crime Act 1996.

The significant difference between both sets of statutes is that provision is made in the Criminal Justice Act and the Proceeds of Crime Act for notification to the Land Registry when the relevant orders are varied or discharged. Such a provision is not included in the Family Law Acts and this is causing some operational problems for the Property Registration Authority. The matter has also been raised with the Department by the Law Society. The two proposed amendments amend section 9 of the 1995 Act and section 14 of the 1996 Act by inserting a subsection that will have the effect of ensuring where a property adjustment order has been complied with, the Property Registration Authority will cancel the entry made in the register or note the compliance with the property adjustment order in the Registry of Deeds as appropriate.

Section 18 of the Family Law Act 1995 deals with the variation of certain orders made under that Act. Similar provisions are contained in section 22 of the Family Law (Divorce) Act 1996. There is no provision at present for the Property Registration Authority to amend an entry on the register where a property adjustment order is varied, discharged, suspended or revived. To that end, I have provided for amendment to those sections which will insert a new subsection to provide that the register is amended where an order is varied, discharged, suspended or revived.

Section 35 of the Family Law Act 1995 provides for the protection of an applicant spouse who seeks relief in judicial separation proceedings. The purpose of the section is to prevent the dissipation of assets by either spouse to reduce the amount of relief available to the other spouse. Similar provisions are contained in section 37 of the Family Law (Divorce) Act 1996.

The Law Society has pointed out that there is no limitation period for challenging transfers or conveyances of property on the basis that they are reviewable dispositions under the Family Law Act 1995 and the Family Law (Divorce) Act 1996. This means that if a married person disposes of a property held in his or her sole name, the spouse can challenge the transfer or conveyance by asking the court to review the disposal. The Law Society has indicated that the lack of a limitation period gives rise to uncertainty in the conveyancing process in cases where a separated spouse is not available to corroborate the declaration by the spouse in whose name the property is held. In effect, a purchaser may be exposed to having his or her purchase deed challenged by the non-owning spouse at any time in the future. In order to eliminate this uncertainty, I have proposed amendments to section 35 of the 1995 Act and section 37 of the 1996 Act which introduce a six year limitation period during which time a non-owning spouse may challenge a transfer or conveyance. This will provide more certainty for a purchaser in such circumstances.

Deputy Noel Treacy:    Marriage dissolution and divorce are traumatic for both parties and children, in particular. During dissolution partners may make further claims against each other. Does this introduce a statutory period of six years or does it terminate it?

Deputy Seán Power:    This will have no effect in that respect.

Deputy Noel Treacy:    We should examine this because it is a serious matter. It is bad enough to have legal and personal trauma until the matter is concluded but to have to reopen it would be extremely serious in a bitter case, particularly when children who may be approaching adulthood are involved.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 83:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 84:

This amendment amends the Equal Status Act 2000, as is required to complete the transposition into domestic law of Council Directive 2004/113/EC of 13 December 2004 on gender non-employment. It implements the principle of equal treatment between men and women with regard to access to and the supply of goods and services. Most of the provisions of the directive are already reflected in the Equal Status Act. The necessary amendments are of a relatively minor and technical nature.

Article 5.2 of the directive allows member states to permit gender sensitive calculation of premia and benefits. The Government approved the recommendations of the working group on insurance related issues in Council Directive 2004/113/EC in its report of December 2006 that Ireland should avail of this exemption in specified product areas. The identified product areas are life assurance, both life cover and mortgage protection, critical illness cover, income protection cover, permanent health insurance, annuities, pensions and motor insurance. All of these product areas are based on mortality risk, morbidity risk or the risk of road traffic accidents. It is intended that the product areas exempted under Article 5.2 of the directive are defined sufficiently so as not to curtail future innovation in the Irish insurance market.

A further exemption for health insurance products traded internationally is also proposed. The necessary amendment is being prepared and will be included in a subsequent amendment on Report Stage. The task of compiling, publishing and updating data relevant to the use of sex as a determining actuarial factor as required by the directive is assigned to the Financial Regulator.

The Equal Status Act 2000 is also amended to allow referral of a complaint to the Circuit Court by a complainant who claims prohibitive conduct was directed against him or her in circumstances to which Council Directive 2004/113/EC is relevant. The section also removes all limits on the amount of compensation which may be ordered by the Circuit Court by virtue of this provision. This option is provided to give effect to Article 8.2 of the directive which requires that member states introduce such measures as are necessary to ensure real and effective compensation or reparation for the loss and damage sustained by a person injured as a result of discrimination in a way which is dissuasive and proportionate to the damage suffered. The fixing of the prior upper limits shall not restrict such compensation or reparation.

Amendment agreed to.

Deputy Seán Power:     I move amendment No. 85:

The Civil Legal Aid Act 1995 is being amended by the insertion of new sections 10A and 10B. These sections will provide for the accountability of the chief executive officer of the Legal Aid Board to the Committee of Public Accounts and other Oireachtas committees. The Secretaries General of all Departments and the heads of statutory bodies are held accountable before the Committee of Public Accounts and Oireachtas committees. However, in the case of the Legal Aid Board, an independent statutory body, the Secretary General of the Department of Justice, Equality and Law Reform appears before these committees on its behalf. The amendments will mean the chief executive officer of the board will appear before the committees to report on the accounts and administration of the board. The board is a statutory independent body and it is proper that it should report to the Committee of Public Accounts and other Oireachtas committees in its own right, independently of the Department of Justice, Equality and Law Reform.

Deputy Pat Rabbitte:    Does the Secretary General of the Department of Justice, Equality and Law Reform do this at present?

Deputy Seán Power:    Yes.

Amendment agreed to.

Chairman:    Amendments Nos. 86 and 87 are related and will be discussed together.

Deputy Seán Power:    I move amendment No. 86:

The amendment of section 26(3)(b) of the Civil Legal Aid Act 1995 makes the exclusions on the provision of legal advice subject to the same qualifications as for legal aid in property matters. As the Act stands, the scope of legal advice is more limited than the scope of legal aid. It is the opinion of the Legal Aid Board that this was not the intention at the time of drafting. To support this opinion, it points to section 28(9)(c)(iv) of the Act which provides for the grant of legal aid for the preparation of an assent which is a legal advice only service. The proposed amendment will ensure the policy at the time of drafting is clear and that the legal advice is available where it is clear that legal advice should be available.

The effect of the amendment will include matters relating to the Residential Tenancies Act as areas of the law where the Legal Aid Board can provide legal advice and representation in a court proceeding. This provision is on foot of strong representations from the board on the subject. It is important to note that this does not have the effect of creating an entitlement to legal representation before the Private Residential Tenancies Board itself and the firm policy position is to not extend the civil legal aid scheme to tribunals or quasi-judicial bodies of this nature.

In addition, the inclusion of a new subsection (3A) extends the provision for the Legal Aid Board to provide legal advice, free of charge and without a means test, in rape and sexual assault cases. The current position is that legal aid is given when the prior sexual history of the complainant is being raised by the accused as part of the defence. This was introduced in response to calls by NGOs and others seeking separate legal representation for complainants in rape and other sexual assault cases. It was achieved by means of an amendment introduced in the Sex Offenders Act 2001 which inserted a new provision at section 28(5A) of the Civil Legal Aid Act 1995. However, in relation to legal advice given to complainants in certain rape cases, aggravated sexual assault cases, unlawful carnal knowledge cases and incest cases, this advice is subject to a means test and financial contribution. The amendment provides for legal advice to be given by the board to those who find themselves the victim of these crimes, without cost or means testing. I must stress that the legal advice to claimants in advance of certain rape cases does not amount to separate legal representation for the claimant in relation to an eventual trial.

The final amendment amends section 28(9)(c) of the Civil Legal Aid Act 1995 by providing for legal advice and legal aid to be given to tenants involved in disputes before the courts under the Residential Tenancies Act 2004. It is clear from the scheme of the Residential Tenancies Act that it is designed to introduce a means of regulating landlord and tenant matters. To this extent, it is similar to the landlord and tenant legislation. While the specific remedies and approaches differ, the principle of offering greater protection to tenants is the same. In such circumstances, tenants should be treated the same, whether seeking assistance to regulate their relationship with their landlord under the Residential Tenancies Act or the Landlord and Tenants Acts. The current position is that legal advice can be provided for most matters dealt with under the Residential Tenancies Act, but such legal advice must cease if a dispute arises. Legal aid cannot be granted under this Act because it is not listed as one of the exceptions to the rule which prohibits the board from giving legal aid in respect of property disputes. The same is not the case with the Landlord and Tenants Acts which are listed as exceptions; therefore, legal aid can be granted if a person proceeds to court with a dispute under these acts.

The provisions of the Civil Legal Aid Act 1995, as they stand, exclude not only disputes about the ownership of land and property, as was intended, but also disputes between tenants and landlords under the Residential Tenancies Act 2004. The amendment will ensure consistency for tenants in the treatment they receive under the Civil Legal Aid Act. The effect will be to include matters pertaining to the Residential Tenancies Act 2004 in the areas of the law in which the Legal Aid Board can provide legal advice and representation in court proceedings. The amendment is brought on foot of strong representations from the board. It is important to note it does not have the effect of creating an entitlement to legal representation before the Private Residential Tenancies Board and that the firm policy position is not to extend the civil legal aid scheme to tribunals or quasi-judicial bodies of this nature.

Deputy Charles Flanagan:    This is a step forward and I acknowledge what the Minister of State said. I would not like to think the matter will not be revisited at a later stage but the expansion is certainly welcome.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 87:

Amendment agreed to.

Chairman:    Amendments Nos. 88 and 89 are related and may be discussed together.

Deputy Seán Power:    I move amendment No. 88:

Amendments Nos. 88 and 89 provide for a change in the number of persons appointed to the Employment Authority and a subsequent amendment to the number required for a quorum at meetings of the authority. The amendments are necessary for the efficient functioning of the authority, given the increase in its workload in recent years and to ensure fair representation of all stakeholders and particularly those at risk of discrimination.

Deputy Pat Rabbitte:    How many are there?

Deputy Seán Power:    There are 12 at present.

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 89:

Amendment agreed to.

Deputy Seán Power:    I move amendment No. 90:

The Schedule of repeals and revocations to an Act sets out in table form the Acts or sections of Acts that have been amended or repealed. It also sets out the statutory instruments that have been revoked as a result of changes in legislation made by the Act. The Schedule of repeals and revocations to the Bill is being amended to reflect the changes made on foot of Committee Stage amendments.

Amendment agreed to.

Schedule deleted.

Deputy Seán Power:    I move amendment No. 91:

The purpose of the Long Title to an Act is to reflect the content of the Act. Accordingly, the Title to the Bill has been amended to reflect the changes made on foot of Committee Stage amendments. The Title will have to be further amended on Report Stage to remove the reference to the Gaming and Lotteries Act 1956, given the decision taken by the committee to delete the proposals in regard to that Act.

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments

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Last Updated: 14/07/2011 19:37:33

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