Thursday, 4 November 2010
Dáil Éireann Debate
This Bill, entitled the Civil Law (Miscellaneous Provisions) Bill 2010 provides, as indicated in the Long Title, for amendment of existing legislation on civil legal aid, civil liability, private security services, intoxicating liquor, equality, bankruptcy, maintenance of spouses and children, solicitors, conveyancing, statutory declarations and domestic violence.
While many of the provisions in this type of Bill are technical only, there are important changes that will strengthen the law and make it more efficient and effective. The explanatory memorandum provided with the Bill on publication is detailed and will be of assistance to those Deputies wishing to familiarise themselves with the various provisions of the Bill that form, in total, as many as nine Parts.
I propose to comment on what might be regarded as the more important features of the Bill. I say that with some hesitation because the Bill is a response to a large number of inputs from a wide range of particular interests who have recommended or sought changes in the law. To mention just a few, it has involved the Legal Aid Board, the Courts Service, the Private Security Authority, the anti-human trafficking unit of my Department, the Law Reform Commission and other Departments. While each of the changes now provided are important in themselves, some changes will have a greater impact than others. What we call the Statute Book will, I think, be generally enhanced by the provisions in the Bill but better still, as I am sure Members will agree, is that the lives of people, the organisation of some agencies and the public interest will be better served.
Part 2 of the Bill gives statutory backing to allow the Legal Aid Board to provide legal advice in relation to criminal matters to alleged victims of human trafficking offences in connection with the trafficking or related offences and any related prosecution. The Legal Aid Board will be in a position to provide legal advice to victims of human trafficking all through the criminal justice process to ensure that the victim is fully protected and advised of his or her role as a witness. The amendment will enable full effect to be given the Council of Europe Convention on action against trafficking in human beings and to a UN protocol on trafficking in persons, in particular women and children. I arranged for the ratification of these instruments this summer, both of which are in operation in the State.
The Government takes seriously the crime of human trafficking. The Criminal Law (Human Trafficking) Act 2008 criminalises trafficking of persons for sexual or labour exploitation and provides for penalties of up to life imprisonment. The high level interdepartmental group on combating trafficking in human beings and a dedicated anti-human trafficking unit have been established in my Department to co-ordinate a comprehensive, holistic and whole of Government response to the issue of human trafficking. A national action plan to prevent and combat trafficking in human beings was published in June 2009. The plan provides the blueprint for the State’s response to this issue.
Once a potential victim comes to the attention of the competent authority, which for cases of human trafficking is the Garda National Immigration Bureau, GNIB, they are immediately offered access to a range of services. These include accommodation with the Reception and Integration Agency, RIA, medical and support services through a HSE care plan based on their individual needs and legal services provided by the Legal Aid Board. On enforcement, the Garda Síochána has identified trafficking in human beings as one of its priorities in the annual policing plan and has established a human trafficking investigation and co-ordination unit in the Garda National Immigration Bureau. There is a dedicated website —www.blueblindfold.gov.ie - and a hotline number and an e-mail address to which people can report any suspicions of human trafficking to the Garda Síochána.
Part 3 of the Bill is aresponse to those in voluntary groups or organisations who have asked for more clarity in the law in regard to persons who act in good faith as Good Samaritans to provide assistance in the event of an accident or emergency and where persons volunteer to provide care, advice or assistance to others. Voluntary activity is, of course, essential in any society. It is important that the law should, as far as possible, protect those who are committed to making a positive difference in the communities in which they live and work. The new provisions are framed on the basis of recommendations from the Law Reform Commission which was asked by the then Attorney General — the late and very esteemed Rory Brady — to consider the civil liability of those Good Samaritans who intervene to assist and help an injured person. I am glad to be in a position now to implement the recommendations of the commission albeit with some technical and legal changes. The new law will mean that protection is provided from liability for persons involved in voluntary work for charitable or other purposes for the benefit of society, including sports, recreation and rescue. While the Bill sets out an ordinary standard of care for volunteer organisations, provision is also made for account to be taken of the benefit accruing to society as a result of the organisation’s work in determining whether it is just and reasonable to impose liability. To achieve balance in the law, volunteers will be required to act in a way that does not contribute to gross negligence, while the volunteer organisation with whom they operate will be held to the higher standard of ordinary negligence.
In this regard, I acknowledge the initiative of Deputies Timmins and Flanagan in sponsoring a Private Members’ Bill on the matter. I think that they will agree that the provisions that I have brought forward will meet in full their concerns in this area.
The amendments contained in Part 4 of the Bill, again many of them quite technical in nature, will result in the strengthening of the capacity of the Private Security Authority, PSA, in areas such as licensing and enforcement and will enable it to keep up to date in an evolving industry dealing with ongoing technological advances. The PSA has brought about a significant and welcome transformation of the security industry over the past few years. There are in addition many acknowledged positive benefits for the industry itself, the wider business community and the public alike, including a reduction in the potential for criminal activity.
On the basis of experience of operation of the PSA over the past number of years, it has become clear that its effectiveness can be improved by the changes provided for in the Bill. The amendments provide for improvements to the licensing process of the authority, including technical changes to certain aspects of the renewal procedures and the ability to grant a temporary licence in particular circumstances. The expansion of the authority’s powers to request information, in the case of a contractor, from a wider group of individuals than is currently the case will augment further what are already very substantial gains to the State arising from tax certification and other compliance measures brought about through the licensing process.
Security services are the subject of change owing to advances in technology and it is important that the legislation underpinning the authority takes this into account. The amendments of the Private Security Services Act provided for in Part 4 of the Bill help to update the Act. They will also facilitate changes in the fee structure of the Private Security Authority. Provision is made to allow the authority to appoint persons, in addition to its own staff, to be an inspector and so give the authority the ability to contract in outside inspectors, if necessary. A useful new provision is that the authority will be in a position to issue a temporary licence to an applicant who is a new entrant to the industry for a period not exceeding six months, during which the applicant can prove he or she has the necessary competence to perform the security services in question. The authority may, in exceptional circumstances, extend the temporary licence for a further three month period, if necessary. I am also making provision to allow the authority to recover, through the fees charged, as much of the expenses incurred in running it as it considers appropriate.
Part 5 of the Bill makes provision for statutory backing for codes of conduct in relation to the sale and supply of intoxicating liquor. This is an important provision which is designed to encourage voluntary compliance with licensing law provisions by licensees generally, or categories of licensees, and will complement the Garda’s overall enforcement programme. It forms part, therefore, of the Government’s strategy to continue to combat alcohol-related harm in our society. Deputies may recall that during discussions leading up to enactment of the Intoxicating Liquor Act 2008 I was asked by representative bodies in the mixed trading sector to consider the possibility of a voluntary code of practice as an alternative to the statutory provisions requiring structural separation of alcohol products in mixed trading outlets such as supermarkets and convenience stores. I agreed to this subject to agreement on the terms of such a code and independent verification of compliance with it.
The code of practice for the mixed trading sector was subsequently agreed and the sector appointed Mr. Pádraic White as chairperson of a new body, Responsible Retailing of Alcohol in Ireland, RRAI, to oversee its implementation. He submitted his first compliance report last autumn which showed that considerable progress had been made in the code’s first year of operation. I am expecting submission of the 2010 report shortly. The purpose of section 14 is to give codes of practice, which have been entered into voluntarily by licence holders, quasi-legal status. It provides that while non-compliance with such a code will not be an offence and, therefore, will not attract a fine or other such penalty, non-compliance will constitute a ground upon which an objection to renewal of the licence concerned can be made. This will help to ensure that licensees implement the terms of any codes to which they have signed up and will give the Garda and instrument to promote compliance.
This section will permit the drawing up and implementation of voluntary codes to cover areas of licensing law but also areas such as the advertising and marketing of alcohol products and staff training, which are not covered by the licensing code.
I want to stress that such codes will not replace but will rather complement statutory provisions. They will not reduce enforcement of the law but rather assist in promoting compliance. Licensees who commit offences under licensing law will continue to be prosecuted by the gardaí in our courts if offences are committed.
The Bill, in Part 6, provides for a small number of amendments to the Equality Acts. These amendments are intended to improve the efficiency and user friendliness of the Equality Tribunal in handling complaints and to take into account legal decisions at both national and EU level. I have agreed with my colleague, the Minister for Community, Equality and Gaeltacht Affairs, to incorporate the amendments in this Bill so that the legislative changes can be effected at an early date.
The amendments provide that the tribunal may, where appropriate, deal with cases on the basis of written submissions alone; state a case to the High Court and avoid further litigation by way of appeal; in situations where mediation has failed, the deadline for application for resumption of the hearing is extended; and the maximum amount that may be awarded in employment equality cases is increased to two years’ remuneration or €40,000, whichever is greater, to provide for greater redress in situations of low-paid employment. This is designed to align the text of national law more closely with European Union equality directives. The Bill, in Part 7, will provide for certain limited amendments to the current Bankruptcy Act 1988. I have already indicated to the House on a number of occasions that I will give early attention to the final report of the Law Reform Commission on Personal Debt Management and Debt Enforcement, which is expected in the near future.
Current Irish personal insolvency law, in the opinion of Government and the commission, is in need of comprehensive reform. The Bankruptcy Act 1988 is inappropriate to meet the needs of our modern social and economic conditions. The commission, in its interim report of May 2010, recommended that, as a modest stepping stone towards more comprehensive reform of bankruptcy, the period for application to the court for discharge for bankrupt persons be reduced from 12 years to six years. It has been stated that such a reduction may have limited effect because even after a six year period has expired, further obstacles exist to the debtor’s discharge, that is, payment in full of all expenses, fees and costs of the bankruptcy, as well as all preferential payments — primarily to the Revenue Commissioners — before a discharge can be obtained. As these costs and preferential debts will often amount to very large sums, in the majority of cases a debtor will be unable to meet these amounts at any stage and therefore they may remain bankrupt indefinitely. Nevertheless, the change I am making will assist those who may be in a position to meet their liabilities and, therefore, re-engage in economic activity in society.
I am providing, for the first time in Irish law, for the automatic discharge of bankruptcies on the 20th anniversary of the adjudication order in these cases. This will assist in the discharge of long-term bankrupt persons and will allow the official assignee in bankruptcy to put closure in his office on what are called legacy bankruptcies that clog up the bankruptcy system.
Part 8 of the Bill addresses difficulties which have arisen consequent on the judgment of the High Court in the McCann case of 2009 concerning the modalities of enforcement of orders for the recovery of civil debt. In that judgment, the High Court found that the Enforcement of Court Orders Act 1940 lacked a number of necessary safeguards in circumstances where a person is at risk of imprisonment. Following this judgment, the Enforcement of Court Orders (Amendment) Act 2009 inserted a series of amendments designed to protect debtors and impose obligations on the creditor. However, this has given rise, unfortunately, to difficulty in some family law cases in regard to the payment of maintenance arrears by spouses on foot of court orders. A number of Deputies on both sides of the House have raised issues in regard to that in recent months.
The purpose of the amendment I am now proposing to the Family Law (Maintenance of Spouses and Children) Act 1976 is to de-couple family law maintenance debt from civil debt in general. The proposed amendment to the law is based on the premise that a court has already deliberated in setting an appropriate level of maintenance and that if the debtor breaches that order without a significant change in his or her circumstances, that breach will constitute contempt of court and can be punished by imprisonment. As these are civil contempt proceedings, both the creditor and debtor will be entitled, subject to the usual criteria, to civil legal aid under the existing provisions of the Civil Legal Aid Act 1995.
In Part 9 I am amending, among other matters, the Domestic Violence Act 1996 to allow a person to apply for a safety order against a person with whom he or she had a child in common, including where the couple concerned do not live together or have never lived together. The occasion of access to children can be difficult and safety issues can arise. Making safety orders available to the court in such circumstances will provide a remedy for the parties who are in need of protection. Breach of such orders will be an offence under the Act of 1996.
I am indebted to the wide range of interests who have helped to inform and shape policy in this area. The citation of the Bill, as a miscellaneous provisions Bill, is one that inevitably suggests it will operate as a magnet for all kinds of reforms and I know there are interests who will want even further changes in the law on this occasion. I am giving consideration to further requests, particularly from the Courts Service, to improve on court procedures to improve access to the courts and make them more efficient. I will, therefore, table amendments at later Stages of the Bill and will seek the co-operation of the House in this exercise.
Deputy Alan Shatter: I welcome the fact that this Bill is before the House and that we are discussing it. As the Minister correctly stated, the Bill addresses a broad range of different issues, some of which have been waiting in the wings for some time to be addressed. The Bill is a disappointment, however, because there is a broad range of other issues with regard to civil law that have been ignored for too long and which this Bill provides a useful vehicle to use to have those issues addressed. I welcome the Minister’s statement in his concluding comments that he may bring further matters of relevance before the House that could be included in the Bill and I would hope, in that context and in that state of mind, the Minister will also support proposals from this side of the House to address issues that have been ignored for too long and that this Bill could properly address also.
I want to first deal with some of the issues that arise specifically under the Bill and one or two difficulties, and then make reference to some of the areas that could be addressed that the Bill currently ignores. Fine Gael will also bring forward amendments to the provisions in the Bill.
I will begin by welcoming the provisions in the Bill to provide legal aid and legal assistance to the victims of human trafficking. That is a welcome provision and the sooner it is put in place, the better. The Minister made reference to the issue of Good Samaritans, which is an issue that has been addressed in the past by colleagues of mine, and the Minister made reference to that, and an issue for which we require new legal provision. The provisions contained in the Bill provide a good basis for starting to address the issue but some changes are required in the Bill to ensure it is adequately addressed.
In that context I draw the Minister’s attention to a submission on the Bill, which I presume he has received, from the Irish Heart Foundation detailing a series of amendments it believes would improve the Bill and would ensure that those who provide Good Samaritan assistance to people in substantial difficulty have available to them the protections to which they are entitled.
In that context I draw the Minister’s attention to one particular aspect of the provision contained in the Bill. The current definition of “volunteer” in the Bill states: “’volunteer’ means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses actually incurred) or other reward;”. The Irish Heart Foundation would like clarification on what “authorised by a volunteer organisation” means and what that would mean for the liability of individuals who are trained as first responders by the Irish Heart Foundation or by trainers who receive their training from the Irish Heart Foundation.
This is an issue that goes even beyond that to which the Irish Heart Foundation is referring. There will be people who come to the assistance of others who are trained and have an expertise in a particular area, but are we talking about expertise acquired within the State or outside it? There are many such issues. The Irish Heart Foundation has proposed an amended definition for the concept of volunteer: “a ‘volunteer’ is an individual who, without any expectation of payment or other financial reward, agrees to provide assistance, advice or care ... and includes an individual who does so under the auspices of a volunteer undertaking”. It is important that anyone who acts in good faith in an emergency has proper protection from civil liability.
The definition of “emergency” in the Bill also gives rise to some difficulty. Emergencies are said to include “circumstances arising in connection with an actual or apprehended accident”. I agree with an amendment suggested by the Irish Heart Foundation, namely, to include in the definition “other circumstance of serious and imminent danger”. There are circumstances in which there may be serious and imminent danger but which do not necessarily arise from an accident. There are some issues that could be addressed constructively on Committee Stage to improve the provisions of the Bill in this area.
The Bill touches on the area of bankruptcy. From what the Minister had to say, I understand that in addressing the issue of bankruptcy he is awaiting the final report of the Law Reform Commission. My Fine Gael colleague, Deputy Deirdre Clune, will be addressing the issue of bankruptcy in some detail. This Bill is a lost opportunity. In the context of the current catastrophic economic climate, there are many decent, ordinary people who are self-employed or involved in small businesses and are finding themselves, through no fault of their own, in major financial difficulties. Their businesses have collapsed or contracted, or, as a consequence of the economic collapse, they have been left in substantial debt because those to whom they provided services or products simply have not paid them or have gone into liquidation.
We need a fundamental and radical overhaul of our bankruptcy legislation. We have the working paper from the Law Reform Commission, and I know there is a promise of final recommendations. I am conscious, however, that such reports often gather dust on shelves for years. In the current economic climate, there is a need to do a good deal more with regard to reforming our bankruptcy laws. There are a number of particular issues, but we have to ensure, for example, that those people — particularly bankers — who have not only brought down the economy but, because of their greed, borrowed insane sums of money on the security of properties whose values could never be maintained, are not allowed to return to their old ways. We must ensure that people who have behaved with gross incompetence are not allowed with ease to involve themselves independently in business matters. Everything possible must be done to ensure that debts incurred are discharged. The same applies to the greed of some developers and construction companies, but not to all. There are some small construction companies in this country that did their work with great responsibility and would not feature among the legions of the rich and avaricious who thought they could simply make a bet on bits of land in Dublin and elsewhere and that, within a period of months, their money would be doubled or tripled because of their simple engagement with it.
We must ensure that those who have behaved irresponsibly and caused the State damage, who are in enormous debt and who have, through their irresponsibility, brought down other people in the business community who were behaving responsibly and running decent businesses, are not allowed to return with ease to the economy as independent operators. However, there are thousands of people who are now confronted with the possibility of bankruptcy and, even if their companies are small, have gone guarantor for debts they will never meet. They now have no choice but to be rendered bankrupt, if not by way of a voluntary bankruptcy then by those to whom they owe money. There are people who need to be given an opportunity to rebuild their lives. Our bankruptcy laws are harsher than those of most countries in Europe and certainly than those in the UK and the USA. We need to give people who, through no fault of their own, ran businesses that collapsed because of the catastrophic economic difficulties for which this Government is substantially responsible the opportunity to rebuild their lives, return to the marketplace, and create jobs for themselves and others. Many have the talent to do it. Many successful companies, including global companies, are run by people who suffered bankruptcy in their early business years but have been able to rebuild their lives.
What the Minister is doing in this Bill is not adequate. This is an emergency issue in the context of the economic climate in which we are living. It is not an issue in respect of which we have the luxury of allowing the Law Reform Commission to publish a report, followed by two or three years of debate and consideration and then perhaps some reforming legislation. I ask the Minister to give this issue further consideration before Committee Stage. As I said, my colleague Deputy Clune will address this further.
The way the Minister has dealt with the issue of maintenance enforcement can be best described as gross negligence. The Minister is familiar with and made reference to the court judgment which created major difficulties with the Enforcement of Court Orders Act 1940. He sought to address those difficulties in a Bill that went through the House in 2009, but it failed utterly to address the difficulties in the area of family law. At District Court level, many orders are made for the support of spouses or children, some for children born outside marriage. Where a person fails to comply with such an order and is in employment, the facility of an attachment of earnings order is available. However, if he or she is self-employed, or is not in employment but has an income, perhaps from rental property, an attachment of earnings order does not work. I have come across such cases frequently. Support payment orders are made, for example, for children, and some people have failed to make those payments. For what is now the best part of 16 or 17 months, there has been no legal mechanism for enforcing those orders.
Orders made by the District Court in this regard have proved to be of no weight whatsoever, and no legal redress is available in circumstances in which those against whom the orders are made decide to renege on their legal obligations. There are dependent wives and mothers of children across the length and breadth of the country who cannot understand how the legal system has left them in those circumstances. This issue should have been addressed by way of an emergency measure through this House and passed within 24 hours. I am concerned that by the time we work our way through Committee Stage and Report Stage of the Bill and deal with all the other issues that may need to be addressed, these orders will not be enforceable until well into the new year. I ask the Minister to remove the maintenance enforcement provision from this Bill and introduce a separate Bill on that issue next week. My party will support its emergency passage within 24 hours of its publication, provided it addresses the issue correctly. This is an urgent emergency issue for families and needs to be given that level of attention.
Primarily in the case of estranged spouses, we are allowing recalcitrant husbands and unmarried fathers, who have abandoned their children, a free pass to avoid meeting court obligations and making maintenance payments. That is undermining public confidence in the administration of justice and showing contempt for the operation of our courts system with regard to maintenance payments in the family law area. It has thrown spouses and unmarried mothers onto social welfare dependence and resulted in taxpayers’ money having to be spent in circumstances in which they do not wish to be so dependent, and we have allowed husbands and fathers off scot free. It is simply not good enough.
The amendment in the Bill is also not good enough for a particular technical reason I wish to draw to the House’s attention. Under the law as exists if there is a failure to make maintenance support payments, the total facility within the District Court is to recoup six months’ arrears of payments. Where there are 14, 15, 16 or 17 months’ arrears if we introduce a new legislative provision now, a free pass may be given to those who have not made payments since June 2009, a free pass for a large portion of that period of time. That issue needs to be better addressed and dealt with and should have been addressed with far greater speed.
Under the section amending the Domestic Violence Act 1996, the Minister correctly stated that the Bill provides that a person may apply for a safety order against a person with whom he or she had a child in common, including where the couple concerned do not live together or never lived together. I understand the Minister’s objective is that in circumstances where a child has been born outside marriage and there are arrangements for a spouse — more often the father than the mother — to have access to the child, if incidents of violence or threatened violence occur on the part of the father directed towards the mother, she should be able to secure a safety order which means that if the father either when exercising access or on any other occasion threatens the mother, he is subject to arrest and can be prosecuted under the Domestic Violence Act.
While I fully support that provision, which is a long overdue amendment to the Domestic Violence Act, why is the amendment so minimalistic? If a mother is bringing up a child, regardless of whether she cohabited with the father, and if the father poses a threat to her, why should she only be entitled to obtain a safety order, which is merely designed to stop someone from threatening someone else? If they are not living together, should she not be entitled to get a barring order? If she is living in her own rental property, owns her property or is living with her parents and the father of her child is a violent individual, who has previously assaulted her or threatened her with assault, or if the father is an alcoholic or drug addict and his conduct while under the influence poses a threat, why should she only be entitled to a safety order? Why would we not extend the option of a barring order in those circumstances?
Let us take it a step further. We know there are small numbers of people in this State as in every other country who make people’s lives misery by stalking them. We know on occasions when people enter into brief relationships one party may discover the person with whom he or she enters the relationship has a personality problem of some description, may then break off that relationship and become a victim of stalking. Why should a person being stalked not be entitled to seek a safety order of a barring order to stop that individual from coming near him or her? Why should we not allow In those circumstances, when such a safety or barring order has been obtained, allow the Garda Síochána to use the power of arrest to prevent an individual continuing such conduct?
I do not understand why barring orders, which have proved very useful and helpful in the family law area, cannot be extended in this way. There is no constitutional difficulty with it, indeed there is a constitutional obligation on the State with regard to the individual’s right of bodily integrity. There is no party political problem and this is an issue of common sense. I suggest that in the future deliberation in which the Minister will engage with regard to the provisions contained in the Bill, he give further consideration to the extension of barring orders to these sorts of circumstances.
I am conscious that we only very recently dealt with the Civil Partnership Act and it has not yet come into force. When will the Minister make the various ministerial orders to make it operative? I have concerns that the provisions in that Act relating to the extension of the domestic violence legislation in certain circumstances are also inadequate. The Women’s Aid group has made suggestions for further amendments to ensure that vulnerable individuals are protected in circumstances where they are the victims of violence, threatened with violence or their safety is otherwise threatened. I believe this legislation is an appropriate vehicle to address that issue and on Committee Stage the Fine Gael Party will table amendments in this regard.
I want to touch on some other areas this Bill does not address. I have already mentioned the issue of stalking that could be better addressed in civil law than it is at present. I also want to deal with another area that has been talked about for some time, an area addressed by the Westminster Parliament in the Damages Act 1996, which is the area of civil law relating to the awarding of damages in civil cases, particularly in circumstances where people have suffered catastrophic injury as a consequence of medical or other forms of negligence. This particularly relates to people who are put in a position where they will need care for the rest of their lives and may suffer profound intellectual and-or physical disability.
At present our courts when dealing with civil cases in that area can only award capital payments by way of damages. We have no legal structure to provide a different approach. Since 1996 it has been part of English law as it is part of the law in a number of other common law jurisdictions that provision can be made for what are known as structured settlements. Essentially, provision can also be made by the court. If there is not a structured settlement, the court, itself, instead of ordering a lump-sum capital payment can make orders for periodical payments, which are designed to ensure that as someone who suffered very serious injury is getting older and going through life the payments made are adequate to meet their needs and on occasions if there is some fundamental change of circumstances arising from the original injury, those payments can be revisited and if necessary changed or increased.
Under the terms of the English legislation in this area, there is specific provision for the making of periodical payments, which means the courts do not always have to try to definitively guess. For example, where a child has been born with catastrophic difficulties as a consequence of medical negligence in circumstances relating to the child’s birth or where a young child suffers catastrophic injury, for example, in a car crash, the courts are frequently placed in a position where they have to estimate how long the person may live, how their injuries will affect them, not just through childhood but through adulthood; what their needs will be, what particular accommodation will they require and what nursing assistance will they need. The courts have to make decisions about a broad range of issues and guess decades into the future.
There is a real public need and interest in providing a broader discretionary approach for the courts. Provision should be made for periodical payments. In the vast majority of instances, these matters result in payments by insurance companies and we should make provision for structured settlements.
I refer to the definition of a “structured settlement” in the UK Damages Act 1996 because this definition is used in Northern Ireland and in the United Kingdom where there is similar legal provision. Section 5(1) states:
The UK Act could be readily adapted to make provision for structured settlements in our law. The Judiciary has called for it. A recent case was settled in the High Court on the basis of a structured settlement being agreed and the matter being left for mention in court based on a hope or a belief that this Parliament would enact legislation to provide the legal foundation for the structured settlement. There is no sign of such legislation. This Civil Law (Miscellaneous Provisions) Bill provides a very useful legal vehicle to allow for that.
In the context of civil litigation generally, it is my personal belief — and this belief is developing across the community — that a great deal could be saved by way of litigation and legal costs, a great deal of court time could be saved and a great deal of the State’s money could be saved in circumstances in which an in-court civil mediation service would be available to resolve civil liability disputes at an earlier stage. I believe the State should do this and this fundamental change should be put in place by the Courts Service. In-court mediation services should be available at all court levels because it would save the State substantial money in legal costs, the costs of the Judiciary and the costs of the administration of justice. This needs to be done and I ask the Minister to address this issue. With regard to structured settlements, I remind the Minister that the State Claims Agency, which operates under the aegis of the National Treasury Management Agency, has called for a law to provide for such settlements and that call, for some reason, has been ignored.
Another civil law matter, which is almost a curiosity item, is of some importance. Under the Civil Liability and Courts Act 2004, various bodies can be prescribed as bodies in respect of whom judgments or court documents in in camera proceedings can be made available. We have an anomaly here. The Minister has made an order with regard to this Act designating various bodies as entitled to have access to documentation but curiously, if proceedings are brought in the European Court of Human Rights, the court in Strasbourg has not been designated a prescribed body under section 40(7)(b) of the Act. That could create a difficulty in that court properly dealing with claims under the European Convention on Human Rights arising out of family law proceedings. That matter should be urgently dealt with.
The final issue the Minister might want to give consideration to is one of the peculiar anomalies in our law. When it comes to judicial appointments, one has to be a barrister or solicitor of ten or 12 years’ standing to be appointed to the High Court. If one occupies various other judicial positions, one can be promoted from them to the High Court or the Supreme Court. However, one of the curiosities is if someone is appointed to be Master of the High Court, whether he or she is a barrister or solicitor — usually he or she is a barrister — their term serving as Master of the High Court, even of they had been a member of the Bar Library for 20 or 30 years, does not regard them as continuing either to be practising as a barrister nor does that judicial position allow them ever to be promoted from Master of the High Court to a judicial position in any other court.
This is an odd anomaly in the law. I am not making a plea on behalf of any particular Master of the High Court — there is only one at the moment and I am not trying to special plea on his behalf. However, if that position is respected as a judicial position, it is quite odd that someone who has been an eminent member of the legal profession, sufficiently eminent to be appointed to that position, should, as a consequence of such appointment, be disqualified from any other judicial appointment in the State. That is something the Minister might look at.
Deputy Pat Rabbitte: I welcome a number of aspects of the Bill but I am bound to say that I have reservations about the new fashion in the Department of Justice and Law Reform for omnibus Bills that include the kitchen sink. It is difficult to see any rationale for throwing together legislative amendments on bankruptcy, domestic violence and private security services. I welcome the provisions for enforcement of maintenance orders but, again, it is difficult to detect any affinity between amending the law on Good Samaritans and human trafficking. This “round the house and mind the dresser” approach to legislating must be driving practitioners crazy. Just as it is often puzzling as to how and why certain issues are thrown in under “miscellaneous”, it is also a mystery as to why even more pressing matters are excluded or passed over.
I do not suppose anybody opposes legislative protection being provided for Good Samaritans. The term “Good Samaritan” is defined in the Bill as “any person who intervenes to provide assistance advice or care to another person in an emergency.”
Our law on bankruptcy is out of date and unsuitable to modern conditions. “Bankruptcy” is a dirty word in Irish society, which is understandable at a time some prominent figures, who have done society serious harm, are using bankruptcy to evade their responsibilities or limit their liabilities. However, the vagaries of business in current economic circumstances have often forced people into bankruptcy and there is little they can do to avoid it. To wait 12 years in Ireland to be discharged from bankruptcy as compared to 12 months in the neighbouring jurisdiction seems difficult to justify.
At the moment victims of human trafficking do not have legal standing in Ireland. During enactment of the 2008 Criminal Law (Human Trafficking) Act, I argued for the inclusion of a period of recovery and reflection but that section, I am advised, appears to be invoked only for the purposes of assisting gardaí in an investigation or prosecution of cases arising in connection with human trafficking. This legislation will permit the Legal Aid Board to give legal advice to victims or alleged victims of human trafficking. It seems that in this regard, legal advice does not include legal representation.
Amending the Private Securities Act 2004 in this Bill seems especially odd. That Act established the Private Security Authority, one the principal functions of which is the controlling and supervising of persons providing security services and maintaining and improving standards in the provision of those services. The Minister will be aware that I am one of a number of Deputies who have been attempting to persuade him to make plain in any revision of the legislation that a person convicted of a criminal offence or a person who has made a settlement with the Criminal Assets Bureau is automatically disqualified from holding a security licence. I will return to this presently.
I look forward to hearing from the Minister the importance inherent in what seems a very modest measure to enable him to promulgate a code of practice on licensing matters. Does the definition apply to off-licences? It is plain off-licences are included as well.
The amendment to the Domestic Violence Act 1996 seems no wider than the taking into account of legislation since enacted and in particular the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The qualifying period for cohabitation will now be six months in aggregate during the nine months immediately preceding application to the court.
Members of the House will have encountered a growing problem concerning the non-payment of maintenance sums by errant spouses despite the court having made a maintenance order. I have made representations to the Minister on this issue and I welcome the measure he is bringing forward here. We cannot continue to imprison people for routine offences but neither can a blind eye be turned to defaulters in such a serious matter, especially when children are dependent on the contents of the maintenance order being enforced. The importance of this Bill seems to be the distinction drawn between those who cannot pay maintenance and those who calculate they can get away without paying.
I must confess that I was unaware until relatively recently that there is no legal protection for Good Samaritans who go to the aid of others. This Bill now proposes a legislative shield for such actions provided such acts are not grossly negligent. Volunteers are included in the same manner, although the Law Reform Commission draws a qualitative difference between Good Samaritans who stumble across a person seemingly in need of assistance and volunteers who are members of voluntary rescue organisations such as the RNLI and mountain rescue teams. The Good Samaritan may have no training and may be ill-equipped. On the other hand, members of a rescue organisation are persons who are both trained and equipped and have a reasonable expectation that they will be placed in a situation where rescue skills are required of them. To my knowledge nobody has ever been sued on common law principles of negligence and I do not know that there is any high probability of this changing.
Nonetheless, the Attorney General requested the Law Reform Commission to make recommendations for reform of the law on Good Samaritans. In fact the Attorney General’s reference was prompted by a Private Members’ Bill, introduced by Deputy Timmins, although his reference was considerably broader than the scope of Fine Gael’s 2005 Bill and addressed issues of volunteer rescuers, such as mountain rescue teams, and whether there should be a duty to rescue imposed on citizens generally or on medical practitioners, nurses, police and so on.
Although included as part of the Attorney General’s terms of reference, the LRC did not recommend extending a general duty to intervene on medical personnel, off-duty specialists or any other class of people. I presume that in the case of medical personnel, there is a professional duty to comply with. The omission concluded that the extension of such a duty would be inappropriate. Neither is there a duty to intervene included in the Bill. It is worth noting, however, that the professional standards of regulated professions, where the power of regulation itself derives from statute, may well impose such an obligation. For example, the Medical Council’s Guide to Professional Conduct and Ethics states, in section 11:
Whatever about the track record, organisations concerned with volunteering are welcoming of the effort to bring legal certainty to the question of civil liability of first responders. For example, there have been references in the debate to the submission made to us by the Irish Heart Foundation. While welcoming the principle of the Bill in this regard, the foundation advocates a number of amendments that I hope we can tease out on Committee Stage.
I return to the sections of the Bill dealing with the private security services. The Minister for Justice and Law Reform, Deputy Ahern, is aware that a number of Deputies have raised with him questions about the sort of person deemed fit and proper to get a security licence and that these questions were prompted by a particular tragedy in my constituency.
This particularly shameful crime is still being investigated by the Garda Síochána. I do not have any knowledge about who may have been responsible. However, I have had it forcibly drawn to my attention that, as the law stands, a person may be awarded a private security licence, even if that person is the subject of an active investigation by, for example, the Criminal Assets Bureau. The question raised with me was how can any person who has agreed a settlement with the CAB be granted a private security licence. Section 22(3)(b)(i) of the Private Security Services Act 2004 states:
In the definition contained in section 2(1)(c) of “director” includes “any person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act, unless the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity”. To me, that covers a shadow director. For example, a person can own a body corporate, not be a director of it but still call the shots.
The Minister is aware Deputies on this side of the House have raised this matter with him. The introduction of this legislation provides an opportunity for us to address this issue. If the existing law of establishing how a person is deemed fit and proper to be awarded such a licence is defective and holes in it have been exposed, this Bill provides an opportunity to correct it. Will the Minister indicate if he will accept an amendment in that regard on Committee Stage?
The Bill provides measures to make legal advice available to victims of human trafficking. The trafficking of persons for the purposes of sexual or labour exploitation is an enormous global problem. To the surprise of many people, it is a bigger problem in this jurisdiction than we have been led to believe. We discussed this at some length during the passage of the Criminal Law (Human Trafficking) Act 2008 which was to bring us into compliance with our international responsibilities in this regard. In this Bill, the Minister acknowledges victims of human trafficking do not have automatic legal status in Ireland, even when acting as witnesses in a criminal prosecution. Provision will now be made for legal advice to be given to them through the Legal Aid Board’s refugee legal service.
The Free Legal Aid Centre has expressed a similar view. I welcome the Minister’s decision that legal advice would be available in the circumstances proscribed. However, notwithstanding that we know this is a wider problem in society than we originally thought, the provision’s cover of cases and costs will still be limited. I would have thought an unfortunate human being, usually of a young age, trafficked to this country for purposes of exploitation is in need of whatever assistance she — it is usually a woman — can get.
With the Bill’s bankruptcy provisions, the Minister has gone for the most minimalist solution to what is, unfortunately, becoming a larger problem every day. Bankruptcy is seen as a dirty word in society at the moment. This is mainly due to headline stories and the media drawing attention to high-profile figures using bankruptcy to evade their responsibilities. Beneath the media radar, there are a great many people who find themselves in such circumstances. How can we justify a 12-year term before such a person can be discharged? The Bill’s digest, helpfully prepared for us by the Library service, refers to three different commentaries on this from Forfás, the Money Advice and Budgeting Service, MABS, and the Irish Property Council.
The remarks of the Irish Property Council can be anticipated precisely in the terms as expressed there, and people can attach what weight they will to them. I attach more weight to the Forfás document “Making it Happen — Growing Enterprise for Ireland”. That publication draws our attention to the fact that it made recommendations, as did the Law Reform Commission, for a more fundamental and complete reform of the bankruptcy laws.
Notwithstanding the routine, typical Government statement — and we all have to be respectful on occasions — I am not sure there is any great objective evidence that we are a nation of entrepreneurs. A far more compelling case can be made that we produce good teachers, lawyers and civil servants, but entrepreneurs are scarce enough. If one leaves out the category of person who wants to use the bankruptcy laws to evade his or her liabilities, to impose an obligation on such entrepreneurs as we have, that they may not be discharged as a bankrupt for a period of 12 years, is obviously unconscionable given the current state of the economy. As to why the Minister has selected six years, I presume he will come back to it on Committee Stage if not in his reply to Second Stage.
Deputy Pat Rabbitte: I stand corrected, but six years still seems to me to be an unconscionably long time. At the moment, the Minister is driving people to take up temporary addresses in Britain where they are declaring themselves bankrupt. They will then be back in this jurisdiction in 12 months. On balance, I think that six years is still a long time.
I referred to MABS, the Money Advice and Budgeting Service, which would come at it from an entirely different point of view in terms of the consumer. MABS has been quite cautious in its response to this Bill. It says the processes and costs are still the same, while the time period is still long by international comparison. MABS stated that it would still not recommend it as an option for the people it is dealing with, some 70% of whom are on social welfare. I was surprised at the figures that MABS adduced. It said that there were only eight bankruptcies in Ireland in 2008, rising to 17 in 2009. MABS says that is still quite low given the level of debt in the country. I am afraid to say that the figure for 2010 will be seriously in excess of that.
The Law Reform Commission recommends a far more fundamental overhaul of the law in this area than is in the Bill. I do not know if the Minister will do the preparatory work, so that his successor can bring forward the Bill as early as possible next year, if the Minister is having a well-earned rest on the Opposition backbenches at that time.
I wish to say a final word on the capacity of the intoxicating liquor legislation to promulgate codes. All my constituents want to know, and I am sure it is the same throughout the country, is what difference will this Bill make. We still have the problem of some off-licences and supermarkets selling alcohol to under age persons. The alcohol thus sold exacerbates anti-social activity in the area. We have steered away from any tracking mechanism to trace it back to the particular outlet which sold it. Will the codes the Minister envisages promulgating make it easier to deal with this phenomenon? That is the only issue in the minds of residents who are tortured by this activity, which is undoubtedly going on regularly, especially in the summer months. I know that the Minister is seeking to address the wider phenomenon of alcohol abuse in our society, but I would like to hear him comment on that particular aspect.
Deputy Joe Carey: I welcome this Bill, which has been presented by the Minister today. I propose to speak on just one element of the proposed legislation. While welcome, the reform of the Bankruptcy Act 1988 — whereby the period of bankruptcy is to be reduced from 12 years to six years, as per the terms of this Bill — is really just tokenism. Deputy Rabbitte has already referred to that matter, which is a minimalistic solution to a real problem we are encountering in this country. The proposed reform is insignificant and ultimately does little to deal with the enormous problem coming down the tracks for this or any future Government.
In recent weeks, we have had much debate in the House on our budgetary position. Recovery is predicated on achieving a deficit figure of 3% of GDP by 2014. Economic growth, however sluggish, is factored into our calculations.
At this stage, NAMA is in operation dealing with enormous property loans. The banks have been recapitalised on the basis of NAMA and we have had three fiscally adjusting budgets. The issue of personal debt and the ability to repay is one of the most significant pressures now facing this country, especially young families and individuals.
The fact that we are a modern consumer society with a dependency on credit, means it is critical for us to establish a principles-based system allowing for debt resolution in a way that limits the overall costs to society. In essence this means a modernisation of our bankruptcy laws. The element contained in this legislation dealing with the issue is far too little at this point in time.
The moral hazard issue concerning debt is valid, even though it has not been applied to our banks. Nonetheless, we cannot allow debt in itself to become all-consuming, as it has the potential to do, because of our particular Irish set of personal debt circumstances as they stand. We must create the correct balance between the rights and obligations of creditors’ expectations of repayment and debtors’ ability to pay. Debt forgiveness or structured write-downs must be earned. There can be no suggestion of a free lunch or allowing for free riders. Abuse of any reformed system should be dealt with in a more stringent manner than that which might exist prior to the adoption or availing of any proposed system. I would prefer the Minister to bring such legislation before the House.
The Government’s most significant input to deal with Irish indebtedness has been the reform of bankruptcy laws. On the surface and in a very limited way a small element of this Bill begins this process by reducing the period from 12 to six years. However the Minister and his Government must acknowledge that their handling of the economy during the past three years has been abysmal. Every decision has been reactive and tardy in its introduction. The Government must not make the same mistake on this issue. Now is the time to introduce proper and far-reaching legislation on personal indebtedness, not when the crisis reaches its inevitable crescendo. It is clear that the budgetary decisions to be taken by the State over the coming years will exacerbate the problem. The Government must not allow itself to be placed in a hopelessly reactive position, as is commonplace now.
Work on the issue of debt in Ireland has been reactive in nature, taking place generally when an individual is already over-indebted. This must change. Only two countries in Europe function without personal debt management legislation, namely, Ireland and Greece. This suggests something. This legislation does not fundamentally reform and update the Bankruptcy Act 1988. The fact that there were only eight bankruptcies in Ireland in 2008 rising to 17 in 2009 does not accurately reflect the level of debt and pressure in the country.
The process of examinership and debt write-down is only for the wealthy, since we operate a court-based system with High Court costs in the region of tens of thousands of euro per day. Ireland must introduce a system of non-judicial debt settlement for Irish people and SMEs such as the individual voluntary arrangement, IVA, system in operation in the UK, pitched to operate at a level from €50,000.
In 1995, Ireland had a household debt — including mortgages — to disposable income ratio of 48%. By 2008, this had risen to 176%, an increase of almost 270%. This rise is significantly higher than for other countries where similar comparative data exist. I have before me an analysis of this comparison supplied by Goodbody Stockbrokers. It sets out the difference in the household debt to disposable income ratio. In the UK in 1995, the ratio was 106% and increased to 173% in 2008, representing a 63% increase. In France in 1995, the ratio was 66% and increased to 72% in 2008, representing a 9% increase. In Spain in 1995, the ratio was 59% and increased to 130% in 2008, representing a 120% increase. In Canada in 1995, the ratio was 103% and increased to 130% in 2008, representing a 26% increase. This illustrates the real problem Ireland has with indebtedness.
MABS has published interesting statistics dealing with the period between 2008 and 2009. Analysis shows that from 2008 to 2009, levels of debt among MABS clients increased across most debt types. Personal loans with financial institutions, utilities and credit cards form the largest proportion of debt. Four types of debt experienced increases of more than 70% between 2008 and 2009. These include sub-prime at 82.5%, overdraft at 75.4%, hire purchase loans at 72.1% and catalogue at 70.8%. The necessity for people to prioritise their debt, especially secured debt over unsecured debt, may result in debt with the highest interest rates being paid last. This may mean that it will take longer overall to exit from debt.
In Ireland, there is a lack of formal insolvency schemes and the current bankruptcy system is unsuitable for a majority of current debtors. By contrast, there are personal insolvency options in England, Wales and the USA. We must address this shortcoming as quickly as possible. The Central Bank estimates that non-mortgage related debt amounts to 18% of all debt in Ireland. Total household debt, including mortgages, stands at €147 billion, implying personal debt of approximately €27 billion. One must expect that some of this debt, such as the debt that has been dealt with by NAMA, must once again be addressed on the banks’ balance sheets. The same data from the Central Bank indicates that during the past two years the levels of outstanding debt decreased in six of the nine types of debt to credit institutions. Only overdrafts, other loans and securities and credit cards increased from 2008 to 2010. This is interesting for two reasons. All of these types of debt involve higher rates of interest and remain to be paid after the mortgage because of fear of loss of home or eviction and after utilities debt because of fear of disconnection. All of this underlies the point that the Government must deal with the problem of personal debt immediately.
The Law Reform Commission and the Mortgage Arrears and Personal Debt Review Group Task Force among others are deliberating on the issue. The small amendment to the Bankruptcy Act 1988 contained in this legislation, while welcome, is merely window dressing. The Government must act more aggressively on this issue to counter the significant problem it, no doubt, will become in future.
Deputy Deirdre Clune: I am grateful for the opportunity to speak to this Bill. It is a pity so many varied items are contained in this omnibus style legislation. This miscellaneous provisions Bill covers some important issues and areas which probably should have been dealt with individually. Nonetheless, I wish to speak to three areas. One section deals with changes to the Intoxicating Liquor Acts. The Bill proposes that a code of conduct should be prepared for practices with regard to licensing matters surrounding alcohol, setting standards for the display, sale, supply, advertising, promotion and marketing of the intoxicating liquor.
The issue of the price of alcohol has been brought to my attention a good deal in the past year. I realise this may be more related to the Groceries Order but I call on the Minister to consider the introduction of a floor below which alcohol cannot be sold. Let us consider the advertising in the newspapers every day and especially on Sundays. All the supermarkets take out pages of advertising especially for alcohol at prices with which off-licences cannot compete. However, that is not the issue. The fact is this is contributing to a good deal of excessive drinking at home. I acknowledge there is an issue with the cost of alcohol in licensed premises, which is a deterrent. However, the price at which alcohol is made available by the crate is a problem. Let us consider some of the details. Bottles of beer cost 75 cent and cans of beer cost 50 cent. I would like the Minister to take that on board. It may not be related to the Minister’s Department and alcohol was not specifically referred to in the groceries order but it is a growing problem.
I welcome the amendments to the Family Law (Maintenance of Spouses and Children) Act. Many constituents have brought this to my attention. Emergency legislation was passed in July 2009 which allowed those responsible for maintenance orders and who should have been paying them by direction of the court could avoid this. From speaking to the clerk of the District Court, I understand this is because the threat of jail was removed. Those obliged to pay maintenance ignored their obligations and the court orders. This proposal will decouple maintenance debt from civil debt. I know the history surrounding the McCann judgment. Hopefully this proposal will work. Many people, particularly women, find maintenance payments due to them are being ignored by those who should be paying them. District courts are trying to help but I understand there is no means of getting back the money if one ignores one’s obligations for over 26 weeks. The cases I am dealing with date to July 2009, which is some 17 months ago and considerably in excess of the 26 weeks. Where do they stand in respect of the money owed to them?
The previous two speakers have addressed the bankruptcy and the reforms needed in this area. The provisions in this Bill are a token nod in the direction of reducing the period for which a person is declared bankrupt from 12 years to six years. That does not go far enough and I am supported in that view by the Forfás report published in September entitled Making it Happen — Growing Enterprise for Ireland. The report is critical of this proposal and suggests our laws are more severe than elsewhere, particularly the UK, and contribute to a fear of failure. In some cases, a bankrupt can be discharged in the UK within 12 months. We should have a debate on this because we do not want people declaring themselves bankrupt and returning into the community while creditors cannot get the money that can and should be paid to them. We need reform, particularly if we are to develop an enterprise culture in this country. The laws are a disincentive to starting up a business.
We have seen great turmoil in our country in the past number of years. The recession has been longer and more severe than in many of our European neighbours. The increase in unemployment, the slashing of Government capital investment and the near collapse of our banking system has resulted in many companies going out of business. Research recently published shows 42% of companies applying for funding from banks were refused credit. We have had a debate in this House on numerous occasions. These factors are having a devastating effect on business, particularly small and medium-sized firms. This year was the toughest yet for Irish business, with a total of 1,132 businesses closing their doors permanently from January to the end of September. This compares to 1,000 businesses in the same period the year before and 488 in 2008. The recession has created an unprecedented economic climate, where viable businesses are being squeezed out of existence. These failures are not necessarily related to recklessness on the part of the entrepreneur or business person, but are a reflection of the tough economic times brought about by decades of economic mismanagement.
Fine Gael wants to create an enterprise economy and a vision characterised by many elements to develop a new culture of innovation and enterprise, whereby entrepreneurs will be supported and encouraged rather than having economists and accountants dictate how we operate. Perhaps we should use the terms “job creators” or “self-starters” instead of entrepreneurs. We need to foster a culture of responsible risk-taking and we need to overhaul our bankruptcy laws. If people are declared bankrupt, they should not be pariahs. If they fail at their first venture, they should be given the opportunity to work with their creditors to work through the debts so that their energy, commitment and can-do attitude is available to society.
We know why many businesses go out of business. When making contributions to this debate, we should make a distinction between those who cannot pay and those who will not pay, those who have been reckless and those who have been responsible. We must be big enough to stand up for this distinction and not to back away from the debate because of the headlines about those declaring themselves bankrupt in other jurisdictions. Those people may have a case to answer under corporate law but my contribution focuses on the debt difficulties of an entrepreneur.
Personal insolvency laws can act as a form of limited liability but not in this country. Individuals who are aware that their business failure may not result in a life sentence of indebtedness are more likely to take risks and start new business ventures, which is essential for the growth of this economy and the generation of employment. The safety net of insolvency procedures is shown to encourage entrepreneurial activity. This view is supported by the Law Reform Commission, which identifies research showing that bankruptcy law has a significant impact on the level of self-employment in the economy. Bankruptcy laws are a more important contributory factor to high levels of self-employment or start-ups than other factors such as GDP growth. We do not want to encourage investment in inefficient business ventures. The important thing is that people are encouraged to take risks and develop indigenous business while being offered reasonable protection from the State when things go wrong. Starting a company, whether a shop or a tech company, involves taking risks such as committing to a lease, refurbishing premises or committing to employing staff. People are willing to do it and have done it before but small and medium-sized enterprises have little protection from the State when things go wrong.
We must consider small and medium-sized enterprises. For larger companies, there is the examinership process or they can go to the High Court and seek protection under the examinership system. However, examinership can be lengthy and expensive from a legal point of view. The legislation is intricate. The courts are not an option available to many small and medium enterprises. Examinership is the only realistic option for companies. It was introduced in the Companies (Amendment) Act 1990. The process could cost anywhere from €20,000 to €50,000. Practitioners with insolvency practices who are dealing with companies in trouble are finding that the examinership process is not available to everyone.
We should look to other jurisdictions, especially the United Kingdom which has a system whereby a company can enter into a commercial voluntary arrangement. A legally binding agreement can be drawn up between the directors of a company and their creditors which is certified by an insolvency professional. The benefit of such an arrangement is that it protects the debtor from interest charges and the threat of enforcement during the period but it is also an opportunity for creditors to get money due to them in a speedier fashion. In some cases creditors may never get their money.
A voluntary arrangement for companies or individuals should be considered. The system in the United Kingdom seems to work well. Under the model, the function of a court is limited to a supervisory role. The experience in the United Kingdom is that the voluntary arrangements are implemented for a fraction of the cost of the examinership application.
We are in a changed environment. We speak a great deal in the House about encouraging the indigenous economy and small and medium enterprises but we seem to do little to support them to survive in the real world. Bankruptcy and insolvency have a stigma attached. We need to get away from that mentality. I was interested to see the founders of Bebo and Facebook on “The Late Late Show” on Friday last. The person who set up the successful website Bebo had three failures before he achieved success with a business operation. One learns not from one’s mistakes but from one’s failures. In the United States one always has a second-chance opportunity. It is disappointing that the proposals in the Bill are so limited.
Let us recognise that people are willing to take chances. The State needs people to do so because the start-ups and opportunities in which they are involved will create employment and reignite the economy. If we continue with the same old negative, archaic bankruptcy laws we are not creating the type of environment in which enterprises can survive. We must look to other jurisdictions. We do not need to reinvent the wheel. We should look at what our neighbours and those further afield are doing and what works. We need to walk the walk in terms of creating an entrepreneurial and enterprise economy that supports start-ups and individuals who are willing to take risks.
Deputy John Perry: I am pleased to speak on this important Bill. I concur with what Deputy Clune said about the bankruptcy laws, having a second chance and the difficulties that arise for many businesses. It is clear when one compares the regulations in this country to those in the United Kingdom that it is unfair that people are not given a second opportunity.
It is said that small companies are the backbone of the economy. A total of 80,000 companies employ 800,000 people. Many viable businesses are closing at present due to the lack of working capital. It is unfortunate that a business can be closed for the want of a small amount of money. Staying in business or not surviving can be determined by the inflexibility of a bank to provide working capital. It is important we bear that in mind in terms of the regulation of the banking sector, the bank guarantee scheme and the State guaranteed loans for viable businesses. It is a pity the Government did not introduce this model of facility as it would safeguard and possibly eliminate the likelihood of bankruptcy and insolvency. Up to 30 companies a week are going out of business. Despite the best intentions in the past two years the situation has been compounded. The best of companies have been affected. When a company becomes bankrupt or insolvent that has a significant impact on families and communities. People find it very hard to accept.
We must encourage an entrepreneurial spirit in the economy so that people can develop enterprises. We must ensure people are self-sufficient so that they can create their own jobs. The main emphasis by the State is on Enterprise Ireland and IDA companies that employ 270,000 people. All the economists talk about direct employment, which we very much welcome, but the total employment they provide is 270,000 jobs compared to approximately 800,000 people employed by 77,000 micro and small companies who work 40-hour weekends and get little or no support. Such companies have been dealing with the economies of scale employed by banks in recent years which reduced the risk and gave out the most money to the least number of people. That approach meant their case files were considerably smaller and they were taking few investment risks.
Bankruptcy is a frightening word that goes back to the foundation of the State. It is a generational issue. It affects a person’s ability to maintain his or her business and their pride in what they do. It also has an impact on the community. The last thing one wants is to have that term attached to one’s business. Reform of the bankruptcy laws is long overdue. The bankruptcy focus has tended to highlight the big names of the banking and corporate world for whom little sympathy is evoked. Such people are guilty of reckless trading.
One must also consider investments by general practitioners, local business people, dentists and other small companies that bought a second property at the height of the boom based on the perception that everything was going fine and the economy was booming. Such people are now in negative equity and the banks are no longer giving out money. When one has no credit or no confidence, it is difficult to operate. People find it difficult to get credit. In addition, people are spending less due to the depressed economy.
It does not seem fair that people who are now bankrupt are also restricted for up to 12 years. The corresponding period in the United Kingdom is one year. When it is certified that a person has done his or her best to maintain a business we should offer them a second chance to restart. Subject to certain statutory obligations people could be given a second chance. The aim should be to punish those who have made grave mistakes with knock-on effects nationally. We must ensure that we assist ordinary people who face the prospect of bankruptcy. It is important to recognise the potential restarting of many small businesses. In the current climate it is a daunting prospect, and a lengthy and complicated procedure. The reform of our bankruptcy laws is urgently needed. It is very important that in the case of non-fraudulent bankruptcy, entrepreneurs should get a second chance and should be treated on an equal footing to companies starting for the first time.
The fear of bankruptcy and the extent to which it is punished means that Ireland loses some great entrepreneurs to the dread of failure, and it limits the risk takers at a small level also, not just on a grand scale. We must ensure there are still incentives for small companies to be created and not to be restricted by fear before they get off the mark. When I look at business regulation and the ten reasons why one should not go into business I have great respect for those who take the risk and who employ people. We should applaud such people.
If we are to kickstart Ireland’s economy, we must revert to the small acorn. We must recognise people with potential and encourage enterprise and people with ideas in third level colleges. We should give them working capital to develop their ideas instead of putting them on aeroplanes to Australia or Canada. We should encourage people who have excelled in business to set up mentoring programmes.
Of the three critical supports for business, the Government has played its part in respect of the first, namely, bailing out the banks to the tune of billions of euro. One would imagine that the next step would be to have the banks support small companies, which would in turn retain jobs. However, the number of job losses has been significant because of the inability of companies to retain jobs. We must make it easier to employ people, cut down on the amount of red tape and retain and encourage existing companies. We should ask companies in every county how we can help them to hold onto their ten or so jobs. The current situation makes no sense. For example, an employer with 20 employees takes the risk of those employees in terms of PRSI. Instead of making the employer pay the full employer’s contribution, we should provide a subsidy on the condition that he or she retain those 20 jobs on the basis of a 39-hour week as opposed to dropping them to a 24-hour week. It is a pity that people are not being given an incentive to hold on to jobs by reducing the amount they must contribute in employer’s PRSI. Even that gesture would save many jobs in small companies.
Micro-companies receive little or no support. The emphasis has been on IDA-based companies. As the Minister of State knows from his region and as a businessman, an employer of ten people has a sizable responsibility to pay staff on time. The State has an obligation to recognise small enterprise. The backbone of our economy is constituted by the 80,000 firms that employ up to 800,000 people. We must develop laws to work with them.
Where innovation, research and development and entrepreneurial spirit are concerned, the banking sector has failed to deal adequately with the difficulties being faced by small companies. In the past two years, we have heard about nothing except bonds and the preservation of the banking sector. The latter is important but there is a question of rights and responsibilities. The banks received their due recognition from the Government, since the taxpayer has addressed, in terms of a bailout, the significant mistakes and bad judgments made by many bankers. NAMA’s cost of €50 billion has removed that €50 billion from the economy, and with it any incentive to go on.
As alluded to by Deputy Clune, the issue of intoxicating liquor is important. In terms of public health, the problem of alcohol addiction is appalling. People are not going to licensed premises, but to off-licences. Between now and Christmas, the main supermarkets will have page after page in newspapers promoting the sale of below-cost alcohol. The current control of alcohol situation is unfortunate. Below-cost selling of alcohol should not be allowed, as those sales incentivise people to drink. For example, bottles of Powers Whiskey are being sold for €5 less than they cost. That amounts to €60 below cost per case. Cases of lager can be bought for €15. The amount of alcohol that can be bought for €50 is considerable and, in terms of the number of road fatalities, a major concern.
We are discussing public health awareness and preventative measures. This is a significant public health issue and we have a profound responsibility in this area. Licensees have a responsibility, but the Government of the day must ensure it has a strategy to promote compliance with licensing laws and to combat alcohol-related harm. If one wants to combat that harm, first on the list should be a ban on below-cost selling. It is the single greatest issue. Laws at the level of the retailer are being clearly established, but what we are discussing is the Government’s duty. The new Government in the UK has examined related anti-social problems. In every housing estate, people can buy cases of lager.
I have observed the related anti-social behaviour. One may point to the buying of alcohol in pubs, but a new element has been introduced and the level of alcohol consumption has quadrupled. Even in these recessionary times, people’s intake of alcohol has increased dramatically. Retailers have a moral obligation not to promote the sale of alcohol at below cost. From now until Christmas, the main promotions in newspapers will be page after page of below-cost alcohol. Enough is enough.
The explanatory memorandum states: “The proposal forms part of the Government’s strategy to promote compliance with licensing law and to combat alcohol-related harm.” Every retailer must comply with licensing law. Section 14 provides that the Minister for Justice and Law Reform or another body may prepare a code of conduct. This code is “for the purpose of setting standards for the display, sale, supply, advertising, promotion or marketing of intoxicating liquor”. This is a far-reaching provision. What is meant by it? A voluntary code would not be good enough. Under the code, the Minister must have regard to:
(c) in the case of advertising, promotion or marketing of intoxicating liquor referred to in subsection (2), whether or not or to what extent such advertising, promotion or marketing is intended or likely to encourage the consumption of intoxicating liquor to an excessive extent.
This sounds well and I agree with it, but what plans does the Minister have to deal with these important health and public order risks? The only way to do it is by controlling the price. It is time that we address the matter of large supermarkets selling a case of 12 bottles at €60 below cost in promotions.
I welcome the amendment to the law on the civil liability of Good Samaritans. Deputy Timmins has discussed this issue many times and introduced a Private Members’ Bill many years ago. It was visionary thinking, as it is important that the civil liability of Good Samaritans, volunteers and voluntary organisations be placed on a statutory footing and to provide legal clarity for persons who assist in an accident or emergency and those who engage in voluntary work for the benefit of society. The Bill includes a definition of a Good Samaritan as a person who provides assistance, advice or care to another person in an emergency and without expectation of payment or other reward. The purpose of the Bill is to protect from liability those who go to the assistance of others who may be ill or injured as a result of an accident or other emergency. This Bill is designed to provide certainty in this legal grey area. A person who volunteers to assist others in need or in emergencies should have clear and specific legal protection. Society must send a clear message to those who choose to act in an emergency and this Bill provides that message. It must be safer and more rewarding to act in emergency situations than to do nothing. The law must send a clear signal that persons who act responsibly in emergencies will receive statutory protection.
I ask the Minister to extend the provisions of this Bill to include liability protection where persons take preventive action in the public interest. The present definition of a Good Samaritan as a person who provides assistance, advice or care to another person does not adequately address the situation where a public-spirited citizen takes action in an emergency situation in a preventive capacity. To illustrate this need I refer to a recent experience in which an anti-social young person or persons moved a line of protective cones away from a construction trench along the side of a road to the middle of the road. The direct effect of this action was to force a two-way flow of traffic into a much reduced traffic space, resulting in an increased probability of a serious traffic accident.
In this situation, a local resident called the gardaí and then had to wait for council workers to come out and restore the traffic cones to their correct place. The resident considered moving the cones to the correct place but as it was early on a Sunday morning and traffic was light, and being in what he considered a legal grey area, he decided to wait. There are many emergency situations where a person has not yet suffered injury but a real and immediate possibility exists that personal injury will occur if urgent preventive action is not taken. The Bill should be amended to give good citizen protection to a person taking preventive action where there is real and immediate risk but no personal injury has yet occurred. In that area, the Bill is very welcome. These issues have been discussed in the House for many years and I am delighted to speak on the subject.
The Intoxicating Liquor Act went through many changes. The obligation and responsibility of the licensee are very important. However, the duty of care of the Government applies in public health concerns and in the area of preventive medicine. We all see billions being spent on the health budget but very little is spent on public health awareness. There is an obligation concerning sale of alcohol to minors; it is a big responsibility. There used to be a way of dealing with that but the responsibility lies in preventing the sale of alcohol to minors.
I hope the Minister will take this on board and deal decisively with it. In his health portfolio, the Minister of State, Deputy Moloney, will be aware of concerns about the under-cost sale of alcohol. We can talk about ways of controlling consumption of alcohol and concerns thereof. There has been a significant closure of licensed premises. People would be far better off going out for a social drink than buying cheap alcohol. One can buy a case of alcohol or a bottle of vodka for about €25. It would be better to encourage people to enjoy a social scene and not take the option of alcohol sold at a massive reduction or in under-cost sales. These actions are taken only to hold market share.
I am delighted the Minister of State is present because I know he recognises the role of small companies and people who create employment. Equally, he recognises the situation, being a licensee and knowing the difficulties encountered in the trade with discounts and sales. A common sense approach is needed in the Good Samaritan Bill. I hope the Minister of State will implement the Government’s intention in the area of under-cost sales. When the below-cost sales ban was removed the intention was to reduce prices considerably. That did not happen and the opposite has occurred. A great incentive was given to multiples which can buy at massive discount and have their own way to manipulate the system to ensure they have below-cost alcohol.
Deputy Bernard J. Durkan: Twenty whole minutes. I thank the Ceann Comhairle. I am glad to have an opportunity to speak on this Bill which contains much material that affects the everyday life of people in this country, in both the commercial and the personal areas, and may have wider implications than we think. The purpose, according to the explanatory memorandum, is “to introduce amendments to the Civil Legal Aid Act of 1995 to allow the Legal Aid Board give legal advice in relation to criminal matters to alleged victims of human trafficking”.
There are various forms of human trafficking. We believe that in times of economic recession such as the one in which we now live a greater danger exists that in a series of areas people may find themselves in a vulnerable position and, due to lack of resources, cannot afford to obtain various forms of legal advice that might be available to them. In order to ensure their rights and entitlements are maintained under the law they have a right to legal aid. It is appropriate this should be given, as in this Bill.
The Bill will cover a wide variety of situations. I am not certain whether the Minister of State is fully aware of the fairly substantial wider implications. The Bill will be called on to a much greater extent than is thought possible. The funding resources required because of the Bill will be much greater than anticipated at present. I say this because enormous backlogs already exist in regard to legal aid. There is difficulty even in trying to obtain an appointment. Along with the Bill there must be some recognition of the fact that the present system is totally clogged up. There is a requirement for the provision of some rules or regulations to speed up the process and to try to ensure the people who have an urgent need to have recourse to legal aid will be able to do so much more quickly than appears possible at present.
The Bill also aims to amend the law relating to civil liability for acts of Good Samaritans and volunteer organisations, as has been mentioned by several Members. It is sad, a sign of the times and of developments in society that are not of a positive nature, that a person who volunteers to assist somebody could find himself or herself liable. There have been numerous such cases. It is sad that in some cases some people have become so mercenary as to use that kind of situation for their own benefit, exploiting the public concern of the Good Samaritan. This situation is when a person sees something going wrong and decides to intervene.
That is a wider issue than people might assume at first sight. It is not always a case of a person rescuing another person, or interfering in a positive way to assist for a charitable purpose, or whatever. There have been numerous instances throughout the country where a concerned citizen has intervened in what appears to be a situation of civil disorder or general nuisance-causing in the context of social misbehaviour. We have come to know that by a different name nowadays because it is referred to as anti-social behaviour. In any event, there have been cases where people have been severely incapacitated as a result of becoming involved in such a situation. I am sure other Members of the House have met and dealt with such situations. When one sees the scars that may have to be carried by a victim for the rest of his or her life from some of this more serious antisocial behaviour, it is a timely reminder that provision must be made to safeguard the rights, entitlements and indemnification of a person who might intervene in such a positive fashion.
The Bill also proposes to introduce support for codes of practice on the sale of alcohol. I do not know whether this legislation will improve or amend the situation at all, but there are some serious problems with substance abuse in Ireland at present. This has become particularly evident with the closure of a number of pubs in the country, with the discouragement — for valid reasons — of people travelling to licensed premises for social purposes. There has been a growth in unsupervised house parties, with no bar staff or anybody to tell people they have had enough or ask them whether they have a home to go to.
The old social norms have been replaced by endless drinking, where there is no control whatsoever. As other speakers have said, this is fed by cut-price drink that is freely available throughout the country. I cannot see this as being in any way beneficial to society. Worse still, it has caused serious social problems in many cases, often culminating in injury or worse. Whatever else is being proposed, in the context of this Bill, that needs to be looked at again, with a view to finding out what may be done to ensure that such situations are recognised.
Amendments are proposed as regards strengthening the provisions of the Private Security Services Act 2004 in relation to the licensing, enforcement and collection of fees. That is an issue about which I have tried to elicit some information in this House over the years, without success. I tabled a question to the Minister recently about the quality and ordering of security services, with particular reference to intruder systems. The Minister replied to the effect that this was a matter for the service providers. Clearly, it is not. Some standards and code of practice must apply to those who are involved in the very sensitive business of security systems installation, obviously. If a person has a security system attached to a house, factory, institution or whatever, and three our four days later the premises are broken into, he or she would be justified in asking serious questions.
I discovered something following a number of queries that arose in my constituency. Reputable people, including institutions, are providing intruder systems which are not reliable, and this is clearly known in advance by potential intruders. Members of the public only find out when they have become the victims of theft, or a break-in. The extent of the knowledge concerning defects in the system is well known throughout the security industry. For some unknown reason, Ministers past and present have either refused, failed to recognise or are reluctant to move in that area.
Something that needs to be known is that there is a requirement for a back-up system. If a back-up GSM system is not provided, the system is not secure. All that is needed is a power cut and the security has vanished. This is the first thing anybody thinking of breaking into a premises will consider. There is no difficulty in effecting a power cut, and professional burglars are adept at it. I know of a particular case where it was a week before the alarm system alerted the house owner or factory owner as to what had happened. That is a crazy system.
To my mind it is incumbent on whatever regulatory system is in place, who provides and offers a licence, to ensure that the householder, business premises or factory owner is protected in those circumstances. There is no sense in Ministers asserting that this is a matter for the service providers, in which case there is no regulation at all. In the event, there is no sense in having legislation and no point in asking questions in the House about this.
If the Ceann Comhairle were as frustrated as I am in dealing with those types of situation, he would be jumping up and down in the Chamber every morning, except it would not reflect well on the dignity of his office. However, I can assure him that it would motivate him because it is enormously frustrating and it is a major flaw in the whole security area that nothing is being done about it.
I was reading the provisions about the installation of security systems in relation to a person who installs, maintains, repairs or services electronic or other devices, constructed or adapted to give warning of, or record unauthorised entry or misconduct on or in the vicinity of the premises — scanner systems, etc. I refer to section 6(a) in Part 4 of the Bill, and I hope it means something because the current situation is totally unsatisfactory. Countless people are being ripped off and can claim no compensation from anybody.
Will the Minister of State say whether there will now be provision for compensation for such people after the passage of this Bill? For example, if a house is cleaned out and a licensed security company has provided the intruder services, will there be a liability to ensure that the victim of the intrusion is protected? Otherwise, there is no sense in having an intruder system.
Alternatively, why not alert the entire population to the fact that several thousand premises throughout the country have alarm systems that do not work effectively? They do not work in the event of a power cut or where there is an interruption on the part of the telephone services, and as a result they are not satisfactory and do not do the job they were supposed to do. I believe this is an area that should be focused on as a matter of some urgency. It has caused me a great deal of annoyance, as I am sure it has done for other Deputies, over the years.
I promise not to digress and am being a very good lad on this occasion, a Cheann Comhairle, but the following has caught my eye: “amendments of the Equality Acts, to improve inter alia, the procedures of the Equality Tribunal”. My attention is drawn, in particular to the word “tribunal” and I do not know when we will ever see the end of the tribunals in this country. They should be able to do the job and wrap up. It should not take forever, because it is getting very costly. I appreciate there is only a passing reference, and it is not directly targeting the Equality Tribunal at all, but refers to tribunals in general. The word “tribunal” is the trigger mechanism there. If that word were incorporated in alarm systems throughout the country, they would always work.
The Bill also proposes amendments to the Bankruptcy Act 1988 to allow for the application of a reduction in the discharge period from 12 to six years and to provide for automatic discharge of bankruptcies existing for 20 years or more. That is not before its time. Other speakers referred to the fact that in the current economic climate there will be many more bankruptcies and businesses going into liquidation than has been the case heretofore. Apart altogether from the current economic crisis, we need to modernise the law in regard to the length of time a person should have to remain in fallow land before being allowed to re-enter business.
I cannot understand the provision for automatic discharge of bankruptcies existing for 20 years or more. In some countries, people can have gone into liquidation or bankruptcy five or ten times in 20 years. I am not suggesting it should be easy to do so but I would be inclined to reduce the 20 years somewhat further. I do not believe that provision serves any useful purpose at present and will set out my reasons in this regard.
Nobody is anxious to see a situation whereby firms, groups, bodies or agencies become bankrupt in order to avoid discharging their liabilities. This does happen, has happened in the past and will happen again in the future. It has happened in the recent past to fairly big groups, bodies and agencies with huge assets or what appeared to be huge assets. These groups, bodies and agencies got to where they are now by whatever means and a new situation is now arising. The question that arises is should they be banned for 20 years or more? I believe that in any situation a reasonable time must be allowed to ensure people discharge their liabilities in so far as possible. Regard must also be had to their ability to discharge.
I am sure the Ceann Comhairle and other Members of the House have dealt in the past couple of years with constituents who will never be able to discharge their debts. On top of those debts are mounting legal and consultancy fees, interest penalties and so on. If that is not bad enough, a person in financial difficulty must also pay sheriff’s fees of €5,000 to €10,000 on top of all that. In the mad rush for everybody to get a handful of goodies, the result will be the collapse of the business with everybody getting a reduced amount.
Section 21 refers to the sums liable to be discharged in bankruptcy cases. It then sets out the level of fees that might be apportioned. Section 20 states: “The Bankruptcy Act 1988 is amended in section 61(3)(h) (amended by section 34 of the Courts and Court Officers 15 Act 2002) by the substitution of “€10,000” for “€7,000”.” In 2004 we discussed the difference between these two amounts. It must be recognised at all times that there is a huge difference between €7,000 and€10,000 in terms of impact on small and big business. The impact of the extraction of the maximum amount of fees and liabilities on the smaller operator can have a devastating fact while the large operator might be able to survive.
Deputy Ulick Burke: I welcome the opportunity to contribute to this Bill in terms of its many amendments to existing legislation. I am glad to have an opportunity to speak to a number of them in the presence of the Minister of State, Deputy Moloney, given his association with the Department of Health and Children. The provisions in regard to alcohol and the practice of the sale of alcohol are important in current times given the damage caused to health by over-indulgence in alcohol and the huge cost in this regard to the Health Service Executive and Department of Health and Children. Excessive drinking also results in accidents and deaths and has adverse effects on family life.
I wish to draw a particular issue to the attention of the Minister of State, namely, the fact that for the past two years British based companies have been marketing highly potent alcohol shot packs in this country. They sought and got agents for the distribution and sale of these products in Ireland. These shots are also readily available on the Internet. I believe those with responsibility in respect of advertising should have raised questions in regard to the type of advertising promoted by these companies. The terminology used in the promotion of these shots includes “easy to pour” and “immediately ready for use anywhere”.
This advertising is targeted at young people in particular. Young people attend concerts and sporting events and these shots can be easily concealed on the person and thus consumed at these events. It is clear from all of this advertising that it is young people who are being targeted. There is a high percentage of alcohol in these shots.
I previously asked in this House that the Minister for Health and Children seek to prevent the sale of these packs of shots, in particular as they are promoted from outside the country.  One can purchase packs of shots at any roadside filling station, although they may not be of the same brand of which I am speaking, which should not be the case regardless of whether these outlets have a licence to sell alcohol.
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