Thursday, 30 June 2011
Seanad Éireann Debate
Minister for Justice and Equality (Deputy Alan Shatter): I apologise to Members for being slightly delayed. The Government launched the new visa waiver scheme this morning and I hope it will result in a great many more tourists and business people visiting here.
The Long Title of this Bill is unusually long. It refers to the many Acts of the Oireachtas the Bill amends. This is an indication of the scope of the Bill and the many reforms of the law it seeks to achieve. The number of Acts referred to here is also indicative of the size and complexity of the Bill. More than 40 Acts are referred to and in addition, the Bill has an unusual number of Parts, 15 in all, and that too demonstrates a Bill of some substance.
I am indebted to this House for taking the Bill at short notice given that it was published only on Friday last. However, Members will appreciate that there are some very worthwhile and wide-ranging measures in the Bill, including some that require enactment with some speed because of gaps in the law. This Bill introduces a number of important reforms in the law across a broad range of areas. These include bankruptcy law, the enforcement of maintenance orders in family law cases, additional domestic violence protection, the amalgamation of the coroner districts of Dublin, protection of good samaritans and those engaged in voluntary work, some changes in the area of immigration and citizenship, legal assistance for the victims of human trafficking, the appointment of Taxing Masters to the High Court and amendment of the Land and Conveyancing Law Reform Act 2009. It contains elements of the 2010 Bill published by my predecessor but I have significantly amended some original provisions contained therein and have addressed a significant number of additional areas of the law. The many changes in the Bill will make the law more efficient and more effective in the areas addressed.
Given the parlous state of our economy and the debt situation of many people, it is not surprising that the provisions in Part 7 of the Bill on bankruptcy already have received more attention than anything else. The most critical change proposed is in the replacement of section 85 of the Bankruptcy Act 1988, so as to provide that the period for application to the court for discharge of bankrupt persons be reduced from 12 years to five years. The discharge remains subject to the existing conditions. These are payment in full of all expenses, fees and costs of the bankruptcy, as well as all preferential payments, primarily to the Revenue Commissioners. The costs and preferential debts involved may amount to quite large sums and in a good number of cases the debtor will be unable to meet these amounts at any stage, and so may remain bankrupt for some time. Nevertheless, the change will be welcome. It will afford a chance to people to recover and to begin anew.
The new section 85 also provides, for the first time in Irish law, for the automatic discharge of bankruptcies on the 12th anniversary of the adjudication order in those cases. This will assist in the discharge of long-term bankruptcies and will allow the official assignee in bankruptcy to bring closure to 365 so-called “legacy bankruptcies” that currently clog up the system.
In line with a commitment in the programme for Government, a personal insolvency Bill is in the course of being developed in my Department to provide for a new framework for settlement and enforcement of debt and for personal insolvency. The framework will make provision for resolutions, without the necessity of court applications. The commitment under the EU-IMF programme of financial support for Ireland is to publish the Bill in the first quarter of 2012. It is my objective to publish the measure ahead of the EU-IMF deadline, if possible. Work is advanced to achieve that objective.
In developing the Bill, account is being taken of the recommendations of the Law Reform Commission in its recent report on personal debt management and debt enforcement. That report provided an in-depth review of the personal debt regime. Moreover, the economic and financial effects of certain of the new arrangements that are in contemplation are being carefully assessed to ensure that all relevant issues are addressed and their impact is fully anticipated and understood and to ensure there are no unintended consequences. A key objective of the Bill will be to achieve a balance, in so far as is possible, between the interests of creditors and debtors and also to create a system that avoids as far as possible the need for expensive bankruptcy procedures and court involvement.
Part 14 of the Bill, relating to the Office of the Taxing Master, is an interim measure pending more detailed reform of the office in line with commitments in the programme for Government and in the EU-IMF programme of financial support for Ireland. Part 14 amends the law so as to widen the qualifications for appointment as a taxing master. The post is currently confined to solicitors of ten years standing but will now be open to barristers and legal costs accountants. The existing retirement age of 70 years is being reduced to 65 years and the period of appointment will now not exceed five years. These modernisation measures are in keeping with recommendations of the legal costs working group and of the Competition Authority and with our ongoing EU-IMF commitments to structural reform in the legal costs area. In that connection, my proposals for the Legal Services Bill are at a very advanced stage of development. They will provide for fundamental reform of regulation of legal costs, of the legal professions and of the adjudication process. The timeline for publication of those proposals is the third quarter of this year. I anticipate they will be published towards the end of the coming September.
Part 8 of the Bill inserts new provisions in the Family Law (Maintenance of Spouses and Children) Act 1976 that would empower the District Court to regard as contempt of court failure by a maintenance debtor to comply with a previous court order and to deal with it accordingly, including by means of imprisonment. The proposed amendment 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. As these are civil contempt proceedings, both the debtor and creditor will be entitled, subject to the usual criteria, to civil legal aid. This measure will strengthen the existing provisions in the law for enforcement of orders of the court to pay maintenance. This area is complex and has been under review for some time. Part 8 addresses difficulties which have arisen consequent on the judgment of the High Court in the McCann case of 2009 concerning the enforcement of orders for the recovery of civil debt. 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, it has become evident that those measures are unfortunately not the most practical in so far as enforcement of maintenance orders is concerned. A real problem has been created for the District Court in this regard.
I would like to take this opportunity to inform the House that I intend to bring forward a further amendment in this area on Committee Stage. I propose to repeal the arrest warrant provision in section 8(1) of the Act while retaining the section to allow it to be used for the enforcement of foreign maintenance orders. This amendment will be more in keeping with the principles outlined in the High Court judgment in the McCann case. In making reference to the enforcement of maintenance orders in the District Court, I wish to state that enforcement orders that can result in a maintenance defaulter being required to spend time in prison are very much last resort measures.
The objective is to ensure that when maintenance support orders are made in the courts, they are complied with by those under an obligation to make payment for the support of either their spouse or children and to ensure that where persons who clearly can afford to comply with orders meet their obligations. The primary remedy available for maintenance default currently is the making of what is known as an attachment of earnings order by the District Court, which facilitates that court when there is a default in maintenance payments requiring the maintenance debtor to make payments directly through the District Court system by way of a court order which requires an employer to deduct the sum due from a weekly, fortnightly or monthly salary payment. The difficulty in this area arises particularly where people are self-employed and attachment of earnings orders have no effect. It is in that area there is a specific gap which, unfortunately, is being exploited by some estranged spouses and parents of some children to evade meeting their legal obligations to provide essential family supports already adjudicated upon by our courts.
I want to turn now to Parts 12 and 13 of the Bill, which deal with the registration of property rights such as rights of way. The background is as follows. Part 8 of the Land and Conveyancing Law Reform Act 2009, which came into operation on 1 December, 2009, updated the law concerning the acquisition of easements and profits à prendre. The former are rights over neighbouring land, such as a right of way, while a profit is an established right to take, for example, turf or timber from land. Many of these property rights have been the subject of an express grant and are, therefore, already registered in the Land Registry. However, where the right in question results from long usage, namely, what is referred to as acquisition by “prescription”, it may never have been registered. One of the aims of the reforms in the 2009 Act was to ensure registration of such rights. Such registration will facilitate the introduction of electronic conveyancing of land.
The law concerning acquisition of easements and profits by prescription has been greatly simplified and streamlined in Part 8 of the 2009 Act. It provides that such rights may in future only be acquired by prescription on registration of a court order with the Property Registration Authority. However, in late 2010, the Law Society made a submission to the Department in which it expressed concern that in cases in which there was no conflict regarding the existence of these rights, the requirement to obtain a court order would lead to an unnecessary expense for land owners and an unnecessary increase in the workload of the courts. The Government has accepted the thrust of the Law Society’s submission and the main purpose of the amendments to the Land and Conveyancing Law Reform Act 2009. The Registration of Title Act 1964, in Parts 12 and 13 of the Bill respectively, is to permit the Property Registration Authority to register the rights concerned without a court order where there is no disagreement between the parties concerning entitlement to the right concerned. The proposed amendments will allow a land owner, who claims to be entitled to a right on the basis that the relevant requirements set out in the 2009 Act have been met, to apply to the Property Registration Authority to register that right on the owner’s Land Registry folio and permit the authority to do so, where the claim has been substantiated to its satisfaction.
To be satisfied that the owner’s claim has been substantiated and is not the subject of a dispute, the authority will serve notice on the relevant parties. The detailed notice and other statutory requirements will be published in the form of a statutory instrument. The authority will also publish “practice directions” to guide practitioners. The amendments to the 2009 Act also extend the three year period during which existing rights of way must be registered to 12 years, that is, from December 2012 to December 2021.
Part 2 gives statutory backing to allow the Legal Aid Board to provide legal advice on criminal matters to alleged victims of human trafficking offences. 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, especially women and children. Both these instruments were ratified in 2010 and are in operation in the State.
In my Department, in the Garda Síochána, in the Health Service Executive and in the Legal Aid Board there are dedicated units dealing with human trafficking and assisting victims, as well as dedicated personnel in the Office of the Director of Public Prosecutions and in the asylum seekers and new communities unit of the Department of Social Protection. Once a potential victim comes to the attention of the competent authority — which for cases of human trafficking is the Garda National Immigration Bureau — they are immediately offered access to a range of services. These include accommodation with the Reception and Integration Agency, medical and support services through a HSE care plan based on the person’s individual needs, and legal services provided by the Legal Aid Board. In respect of 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 .
Part 3 builds on recommendations made by the Law Reform Commission in its 2009 report on the civil liability of good samaritans and volunteers. It amends the Civil Liability Act 1961 to give clear statutory protection from liability to those who, in good faith, help others. The objective is to protect from liability those who, acting with good intentions, go to the assistance of others who are injured or ill as a consequence of an accident or emergency. Protection from liability is also provided for persons working as volunteers for charitable or other organisations for the benefit of society, including sports, recreation and rescue. Volunteers will be required to act in a way that does not contribute to gross negligence, while the volunteer organisation with whose organisation they operate will be held to the higher standard of ordinary negligence. While the higher standard will apply for volunteer organisations, provision is 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.
I may be bringing forward a further amendment to this provision to ensure that those who undertake voluntary work in circumstances of extreme climate difficulty, such as clearing pathways outside family homes or retail outlets during the type of weather that we witnessed last winter, can be assured that where they do so in good faith and do not act with gross negligence, they will not be liable to be sued should someone slip a couple of days later at the location they sought to clear. I also want to ensure that persons who use other materials to deal with weather events are not equally subject to liability to be sued, where they act in good faith and do not behave in a manner which is grossly negligent. This issue is being discussed by the crisis management committee, which I chair in my capacity as Minister for Defence, which brings together all of the various Departments and agencies in the State who may be deployed or engaged in dealing with various crises, be they environmental or otherwise, and which is engaged in forward planning in these areas.
The effectiveness of the Private Security Authority will be improved by the changes provided for in Part 4 of the Bill. The amendments provide for improvements to the licensing process of the authority, including technical changes to certain aspects of the renewal procedure, and the power for the authority to grant a temporary licence in particular circumstances. The Bill also increases the authority’s powers to request information about individuals involved in running a security company. This will augment further the controls on the management of security companies, in addition to tax certification and other compliance measures already in place.
Amendments provided for in the Bill also facilitate changes in the fee structure of the authority and this will allow the authority to appoint a person, in addition to its own staff, to be an inspector. 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 that 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 that is necessary.
Part 5 introduces a new provision in our licensing laws. Section 14 provides for the preparation and publication of codes of practice for the purpose of setting standards for the display, sale, supply, advertising, promotion or marketing of intoxicating liquor.
I stress that such codes are intended as a practical mechanism to promote compliance with the licensing laws by licensees. They are not intended and will not operate as an alternative to Garda enforcement. Nevertheless, while breach of a code will not be an offence, it will constitute a ground on which an objection can be lodged by the Garda to renewal of the licensee’s licence. It will then be a matter for the court to decide under what conditions the licence will be renewed. There is scope for using the code of practice mechanism to deal with aspects of licensing law which are difficult to specify in legislation. For example, it can be difficult to define aspects of marketing or promotional activities in a sufficiently watertight and comprehensive manner to restrict or prohibit them. However, practices which generally tend to lead to excessive alcohol consumption could be addressed under an appropriate code. Staff training is recognised as another important area. However, it can be difficult to specify comprehensive standards in legislation. Incorporating such standards in a code could provide a more practical and flexible way of dealing with the matter.
Before concluding on this point, I refer to the existing code of practice on the display and sale of alcohol products in mixed trading premises. This code applies to supermarkets, convenience stores and other mixed trading outlets and it has been implemented by the mixed trading sector as a voluntary alternative to the structural separation provisions in section 9 of the Intoxicating Liquor Act 2008. The mixed trading sector has established a body known as Responsible Retailing of Alcohol in Ireland, with Mr. Padraic White as chairman, to oversee implementation of the code and to report the results of an independent compliance audit to the Minister on an annual basis. The results of the compliance audits have been broadly positive to date and the previous Government was sufficiently satisfied with the progress made that it did not feel it necessary to implement section 9 of the 2008 Act. Mr. White is due to submit his next compliance report to me in September next, and I intend to seek the views of interested bodies and the public on the effectiveness of the code before deciding whether to give effect to the statutory provisions in the 2008 Act.
MEAS, the Mature Enjoyment of Alcohol in Society, was established in 2002 by the Drinks Industry Group of Ireland. The voluntary MEAS code requires drinks producers, distributors and licensees to ensure that alcohol is sold and promoted in a socially responsible manner, and only to those over 18 years of age. I was surprised and disappointed by the announcement on 20 June by the Licensed Vintners’ Association, LVA, and the Vintners’ Federation of Ireland, VFI, of their decision to withdraw their support from the code and to cease their membership of MEAS. I regard this as a backward step and find it difficult to understand. It was my belief that both organisations——
Senator Sean D. Barrett: I am sorry, but some copies of the Minister’s speech do not have pages 10 and 11. I do not know whether that is a general problem. I would like to follow the Minister’s speech on paper. I apologise for this intrusion, but it would help us if we had the missing page.
Deputy Alan Shatter: If those pages are missing, I will ensure they are provided. It is not that we were trying to deprive the Senator of crucial information. I hope the missing pages are included in the script he now has.
It was my belief that both organisations truly had as an objective the encouragement of social responsibility in the sale and consumption of alcohol. The announcement made is open to the interpretation that they no longer support this important objective. It would be most unfortunate if that were the case. I urge both organisations, in the public interest, to reconsider their decision.
The Bill, in Part 6, provides for a small number of amendments to the Equality Acts which are intended to improve the efficiency of the Equality Tribunal in handling complaints and to take into account legal decisions at national and EU level. The amendments provide for the following changes: the tribunal may, where appropriate and where neither the complainant nor the respondents object, deal with cases on the basis of written submissions alone; the tribunal may 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 for applicants in low-paid employment. This is designed to align the text of national law more closely with EU equality directives.
The Coroners Bill 2007 is before the Seanad, having been restored to the Order Paper on my initiative. The Bill is in the course of being reviewed in my Department with a view, among other things, to making it as cost-effective as possible. In the meantime, in Part 9 I am providing for some early reform of the coroner system to allow for the amalgamation of districts in Dublin and certain other matters with regard to the filling of a vacancy of the office of coroner or deputy coroner.
Part 10 will for provide for a flexible system of fees for citizenship applications. Part 11 is intended to remedy the situation, following the High Court ruling on 25 March 2011 in the case of Dokie v. DPP, the Human Rights Commission, Ireland and the Attorney General, in which section 12 of the Immigration Act 2004 is inconsistent with the Constitution. It also provides for a flexible system of fees for certain immigration services.
Part 15 proposes several miscellaneous improvements of the civil law. The Bill amends the Domestic Violence Act 1996 so that a parent may now apply for a safety order against the other parent of his or her child even where the parents do not live together or have never lived together. This ensures that the full protection of the law is available where access to a child is an occasion of intimidation or even violence between disputing parents. Other amendments to the Domestic Violence Act mean that the protection of the Act is available on the same basis to unmarried opposite-sex couples and same-sex couples who have not registered a civil partnership. In addition, couples will no longer be required to have lived together for a minimum period before one of them can obtain a safety order. In line with a commitment in the programme for Government, I have asked my Department to develop proposals for a stand-alone Bill to further amend the law on domestic violence and to include all domestic violence legislation in one consolidated statute.
The Personal Injuries Assessment Board Act 2003 is amended in Part 15 so that it applies to any applicable limitation period, including the limitation periods set under the Civil Liability Act 1961. The amendment will also provide that the Personal Injuries Assessment Board Act shall not apply to a civil action involving personal injuries sustained by a person on board a vessel at sea, or a passenger on board an aircraft operated by or on behalf of an air carrier. I have included the amendments in the Bill at the request of the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton.
Section 7 of the Official Languages Act 2003, which came into force in July 2006, provides for the printing and publication of Acts of the Oireachtas in both official languages simultaneously. The amendment in Part 15 will allow the publication in electronic format of Acts of the Oireachtas in advance of their printing and publication in both official languages. This will ensure that a version of the Act is available to the public pending the official translation. The practical reality is that translations take a few weeks and sometimes longer to publish. The amendment will help avoid the risk of a challenge from somebody whose rights are affected by a Bill which is not readily accessible. More importantly, it will ensure that all interested persons will be in a position to access an official text of an Act as soon as it is passed by both Houses of the Oireachtas. I have included the amendments in the Bill at the request of the Minister for Arts, Heritage and the Gaeltacht, Deputy Jimmy Deenihan.
Part 15 also makes amendments to the Second Schedule of the Courts and Court Officers Act 1995 to make provision for a number of functions to be undertaken by county registrars with a view to optimising resources and value for money. The amendments will empower registrars to do the following: waive notice periods for intention to marry or enter a civil partnership; make orders in certain circumstances relating to notice of applications to appoint care representatives for persons lacking mental capacity, a function which was conferred on them under section 22 of the Nursing Home Support Scheme Act 2009; enlarge or abridge the time for service of documents or the carrying out of any act; and make orders enabling titles to land to pass from deceased owners to the successors in title.
Inevitably for a Bill of this kind, the addition of some further measures is being contemplated, and if these are ready in time I may seek the further co-operation of Senators in their inclusion. These will, if possible, concern the transfer of responsibility for the provision of legal aid for persons involved with a mental health tribunal to the Legal Aid Board, which will help the Legal Aid Board to promote mediation; certain improvements and efficiencies in courts procedures; other amendments to equality legislation; and a number of other minor amendments.
As Members of the House will see, this is a broad-ranging Bill which addresses a considerable number of areas of our law. In their individual context, each of the measures in this Bill is of real importance and, in some areas, genuine urgency. With the assistance of this and the other House, I have the optimistic objective of having this Bill enacted before both Houses are in recess at the end of July. I thank Senators for facilitating us in moving that Second Stage be taken today and allowing us to address the many important issues I have outlined. I look forward to hearing their comments and observations on the substance of the Bill and any suggestions they may have for its improvement.
We welcome the Bill. Its nuts and bolts are probably taken from the 2010 Bill introduced by the then Minister Dermot Ahern, with some changes as the Minister has pointed out. It would be very disingenuous for somebody on this side of the House not to have almost full support for its provisions. There are several areas of importance.
The change in bankruptcy terms, from 12 years to five, is welcome. The former Minister, Dermot Ahern suggested the period should be six years. I am pleased that the Minister is reducing it to five years although it should be reduced to three. As a practising lawyer I have found it takes a certain period of time to be adjudged as bankrupt, up to two or three years. The 12-year rule is crazy but bankruptcy did not affect us over the past number of decades because of the affluent nature of our society. Thousands of people face bankruptcy, some not entirely through their own fault. We could start blaming the banks or whatever. In special exceptional circumstances I would favour a three-year rule rather than five. It would allow people after six or seven years, from the time they start to get into trouble with banks and are eventually adjudged bankrupt, to get off the blocks again with a clean start. The period of five years is too long. In reducing the period from 12 years to five, the Minister is taking a leap. This area of law has been ignored for a long time. Ireland is currently in the middle of an economic climate I had not envisaged in my lifetime. What the country is going through is akin to what my father, God be good to him, experienced living in America during the Wall Street crash in the late 1920s. Throughout Europe economies have collapsed and that is why I suggest the Minister consider reducing the period from five years to four or three years, which would be my preference.
Another important provision the Minister is introducing is the good samaritan provision. I would like to know if there has been an attempt to define a “good samaritan” and whether it can be successfully defined in law. The amendment is valid. I have been involved in a hillwalking club for many years called the Sheep’s Head Way. It is a beautiful walk around Bantry Bay. If the Minister is ever there he could do the walk. It got rave reviews in the New York Times. A farmer acted as a volunteer to give a history of where they were going, a bit of a scríocht. There are registered ways marked by the State. A walk could take place on St. Stephen’s Day and a volunteer may fall or become injured. The guide has nothing to do with it. Some adult walkers will wander from the paths are chosen. The paths are very well marked and there are stiles to get over fences, gates to be closed and so on. There was a threat of legal action against a farmer who offered to show people the route. There are also instances where people cleaned snow from footpaths and so on. This emerged last year in Dublin and other towns and cities because of the adverse weather conditions. Is there any way we can create a legal definition of a “good samaritan”? We all know in our hearts what it is and what it should be but the legal definition is of interest to me.
I praise the Minister for his strong statement on the change to the intoxicating liquor legislation. He is correct in firing a warning shot over the Vintners Federation of Ireland. It has withdrawn its support for MEAS, which is a retrograde step. The Minister’s statement will send a clear message to the federation. It is a powerful lobby group and it lobbied us when I was a Deputy and Senator. It has great ways of getting around us.
I recognise that we have a serious issue with alcohol in this country, probably more so than any other country in Europe. I am partial to a few drinks myself, but to say we do not recognise it would be rather silly. It applies more to the younger generation. When I was a college student I would have a couple of pints once a fortnight. We did not have the money to have more and the most one got in Cork city was a pint of Beamish or Murphy’s. Other drinks were not available.
Now there are shots. I was a 21st birthday party recently where people were going round with trays of shots. I am sure if I had imbibed them all I would have been shot myself. As a society we have to seriously examine where we are going with alcohol, particularly vulnerable young people. Most people are drinking at 15, 16 or 17 years of age even though they should not be. We must have a responsible attitude and I welcome what the Minister said today. It was very appropriate and necessary.
There are several other changes in the Bill. I am interested in the registration by prescription of rights of way. As someone who practised law for many years I welcome the provision. I understand it refers to situations where there is consent between the parties. I ask the Minister to examine on Committee Stage a situation I became aware of as a politician rather than a solicitor.
A septic tank was in a field for 40 or 50 years. Its owner wanted to inspect and maintain it, etc. When it was installed, the contract was by word of mouth. The formal granting of the wayleave and the right to forever maintain the connecting pipes and so on has never been put in writing or if it was it was never registered. There is a vacuum. The owner of the house, land and septic tank is an elderly lady. The septic tank is an essential element of her property. She should be able to swear an affidavit, setting out the circumstances, the length of time the arrangement has been in place, the fact that it need to be registered and to allow for the right to enter the land, with the Land Registry. The tank is approximately 30 m inside the fence and the woman concerned should be able to have it cleaned and sort out the problem. It is a welcome move and I ask the Minister to broaden the provision to encompass the situation I outlined.
The kernel of my remarks to the Minister is that I have a deep concern that even though he is reducing the bankruptcy period from 12 years to five it is not enough in the current climate. In some circumstances, where a person finds himself or herself with his or her back to the wall financially, a fresh start could and should be made sooner in the current appalling economic circumstances. There are many such people in the country; not just the poorer classes but also the middle classes. I ask that the period be reduced to at least four years.
Senator Paul Bradford: I, too, welcome the Minister, Deputy Shatter, to the House and I welcome the legislation he has brought before the Seanad. The Bill brings a wide array of changes, many of which could have been the subject of separate legislation. Perhaps Deputy Shatter is a Minister in a hurry and wants to make quick progress. I look forward to co-operating with him to ensure the passage of the Bill before the summer recess.
I will commence with a word or two of support for what the previous speaker said about the bankruptcy law. In his proposed changes the Minister is taking a major step forward, but we must ask if we can go a little further. Over the past 12 or 18 months in the House I have said many times that every piece of legislation we introduce, no matter what the sponsoring Department, must be approached from the perspective of job creation and employment. With regard to every Bill, we must ask ourselves whether it produces or costs jobs. One might say a justice Bill should not have to face that test. However, the Minister is introducing changes to the bankruptcy law and this will be good for business.
We have a bankruptcy regime that writes off people’s future. We must contrast it with the situation across Europe, but particularly in the United States where businesses fail and business people lose everything, as happens in Ireland, but are allowed to start again. In Ireland, the closure of a business is often seen as a mark of total and abject failure, whereas in other countries it is seen as a mistake from which people can learn, start again and come back and create jobs. What the Minister is doing with regard to bankruptcy legislation and the loosening of regulation sends out a much needed statement that while people can fail in business, it is not the ultimate mortal sin. There is a possibility of restarting and getting back to work and creating work. The Minister’s proposals must be welcomed. I am sure we will tease out what Senator O’Donovan said about the possibility of even further improvement when we debate the Bill on Committee Stage. The measure sends a strong signal to business people from the House and the Government that it is not case of once down and you are out, and that there is a possibility of starting again.
I was pleased to see the proposed changes regarding the Taxing Master and that the post will now be open to barristers and accountants as well as solicitors. I appreciate what the Minister said about the recommendations that came before him. However, I question the proposal to reduce the age of retirement from 70 to 65. This is a subject we have debated in the Seanad, from a social welfare, pensions and ageism perspective, over recent weeks. Other Ministers have made bold statements, with which I agree, that 65 is no longer old. Could the Minister look again at the assumption that a person must retire once he or she reaches the age of 65? In all legislation we must try to be more flexible in this regard. We are told that 65 is the new 45. Most of our presidential candidates would believe that 70 is the new 50. The Minister might comment on that.
I welcome the proposal regarding the Family Law (Maintenance of Spouses and Children) Acts and their new obligations and provisions. It is sad that so many maintenance orders must be taken out. Deputy Shatter has an obligation as Minister and Senators have an obligation as legislators to ensure that where maintenance orders are put in place by the courts, they are fulfilled to the maximum possible degree. The Minister’s proposals are welcome in that regard.
Senator Paul Bradford: And court cases. I suppose they always will be. I am not a legal expert and, thankfully, I have not had to be a right of way expert, so far. I noted what the Bill provides regarding the registration period 2012 to 2021. What happens if that is not acted upon and the registration is not completed between 2012 and 2021? There will always be people who are left out of the loop.
Part 2 deals with the extension of civil legal aid to victims of human trafficking. We all welcome that. How do we put in place the maximum possible measures to allow victims of human trafficking to come forward? I know great work is done by social workers, gardaí, immigration officers and others, but hearsay evidence suggests a great number of victims of human trafficking live in the shadows. We must try to ensure as many of those victims as possible can come forward.
The proposals on good samaritans are very welcome. I concur with what the previous speaker said. We need to define a good samaritan, in so far as we can. How far can we broaden this legislation? The Minister said he would see if further changes could be introduced on Committee Stage.
Last year, I came across a query regarding a meals on wheels scheme. The scheme, facilitated by nuns with three or four volunteers using their own cars to deliver the meals, encountered a difficulty because insurance companies were claiming that volunteers delivering meals on wheels had to have additional car insurance. This requirement caused the scheme to close down because the people delivering the meals could not afford the additional insurance. I am not sure which Department is responsible for such situations but if we are to encourage good samaritans, such situations must be dealt with.
The Minister mentioned the safeguards the legislation would provide for people clearing roads, removing snow or leaving out salt or sand in bad weather. This is an obvious intervention that the Bill will deal with. Those of us who come from rural constituencies receive a large number of queries from people who live on particularly bad or potholed roads and who are willing to fill the potholes themselves but are afraid to do so because of insurance and liability issues. Could the Minister address this issue, either himself or with the Minister for the Environment, Community and Local Government? If a person is willing to fill a pothole outside his or her gate, can the person be given some degree of legal cover in order that they will not be sued by someone else?
In Part 4, I note what the Minister said about the Private Security Authority. I welcome the provision of additional powers to inquire about individuals who are running security companies. We have made much progress in the private security area but a difficulty persists with a minority of companies. The new legislation will be a help in that regard.
I repeat what the previous speaker said about the licensing laws and the establishment of a new code. We must acknowledge again, as the House has done previously, the country’s massive alcohol problem stemming from an alcohol culture. It is causing social and human misery throughout the country and needs to be tackled. We need a more substantive debate on this issue.
The Minister stated his willingness to consider any additional measure which may be practical. I am not sure how practical this is and it is not my job to speak for Opposition Senators but Senator Leyden has presented to the House on several occasions a Bill dealing with the registration of wills. To most Members it seemed a common-sense measure to have legislation to allow the registration of wills. I am not speaking on behalf of Senator Leyden but I ask whether it might be possible to include in this legislation that very desirable minor change in the law. I look forward to the Minister’s response and I thank him for his attendance in the House today.
Senator Jillian van Turnhout: I thank the Minister for his comprehensive overview. I take this opportunity to welcome the citizenship ceremony held last week in Dublin Castle. This was a very important ceremony and several people noted it as a very welcome initiative by the Minister.
When reading the Bill last weekend I wondered whether the title should be changed to the lost and found Bill because it was certainly an eclectic collection of albeit very important measures. It has certainly tested my mettle in my breadth of knowledge. I cannot claim to have knowledge in all the areas covered so I will limit my comments to areas on which I wish to comment or to measures I wish to note.
I welcome the Minister’s proposals on civil legal aid in section 26 of the Civil Legal Aid Act 1995 which will allow the Legal Aid Board to provide legal advice on criminal matters to victims or alleged victims of trafficking. This is a very positive measure as this is an important extension of powers so that any alleged victim of human trafficking will be able to get legal advice. However, I note that this does not appear to extend to representation for the victims in court proceedings nor will it protect the victims of the sex trade who do not come within the narrow definition of trafficking. I do not know if anything can be done at this stage with regard to this issue. I am concerned that while this is a very welcome measure to allow the Legal Aid Board to give legal advice to victims or alleged victims of human trafficking, it does not include legal representation.
Part 3 refers to proposals on good samaritans. I read this section with particular interest because I am a long-standing volunteer with the Irish Girl Guides and I am bringing 22 girls on a trip this weekend to a 500-strong camp. If I am a little tired on Tuesday I will ask my colleagues to bear with me.
Senator Jillian van Turnhout: I have paid particular attention to this proposal which I welcome. It is important to discuss and encourage good samaritans and volunteerism. This section will be a welcome addition to any discussion on community life. I read the Law Reform Commission report on civil liability of good samaritans and volunteers and I note that many of the recommendations in that report are encompassed here. The proposal to deal with the civil liability of good samaritans and volunteers is important. The Minister also accommodates the range of individuals who may constitute a good samaritan or a volunteer or the organisations or types of intervention. While it may be difficult to define, any measure to support people to take the initiative, is important.
I am involved in several voluntary organisations and I have noted an undue expectation of a duty of care. This may arise where, as a result of an accident, a case is brought against an individual or an organisation by a concerned parent. The problem is that the insurance companies will urge organisations to settle before it goes to court, thereby not allowing the courts to intervene as is proposed in this Bill. This results in an increase in insurance costs for the voluntary organisations. I can provide examples of where this has happened.
Part 5 deals with intoxicating liquor and I particularly welcome these provisions and the Minister’s words on this issue. I have been a rapporteur on two significant EU reports on alcohol-related harm. This experience has changed my opinion because I would have been slightly more moderate in my view on the issue of alcohol-related harm but the evidence speaks for itself. As the Minister observed, the Intoxicating Liquor Act 2008, which came into force in August 2008, introduces firmer penalties for those who sell alcohol to under-18s and it contains other welcome measures. However, enforcement has been limited and weak. I know this Bill cannot change this but I wish to bring this to the attention of the Minister while he is in the House.
Stricter government regulation is required to govern alcohol advertising and marketing. Alcohol advertising and marketing shapes children’s attitudes to alcohol from an early age and it plays a significant role in their decision to drink and how to drink. A review of longitudinal studies was carried out in 2009. This showed that the volume of alcohol advertisement in media seen by teenagers increases the likelihood that they will start to drink, the amount they drink and the amount they drink on any one occasion.
The Minister referred to the voluntary code. In 2003, draft legislation was prepared which was aimed at significantly reducing children’s exposure to alcohol advertising and marketing. Had this legislation been enacted it would have restricted the placement of alcohol advertisements, limited their content and banned the drinks industry sponsorship of youth leisure activities. This draft legislation went to Cabinet and had been approved. There then followed a change of Ministers and subsequently a voluntary code was introduced in place of the draft legislation. I note that this voluntary code mirrors exactly what was produced by the industry, including the grammatical errors. Therefore, the Minister’s comments this morning are all the more pertinent. I welcome the proposals in this Bill but I stress that any consultation cannot just be with the industry. This is an issue that affects society and there needs to be wider consultation. It is clear that a voluntary code alone is insufficient to address the problems and this view is supported by the World Health Organisation which has stated that self-regulation seems to work only to the extent that there is a current and credible threat of regulation by government. I endorse this view.
Part 7 proposes amendment of the Bankruptcy Act 1988. There has been much public debate in recent months with regard to bankruptcy and I welcome the proposals in the Bill. However, I also welcome the proposal by Senator O’Donovan to reduce the term to three years.
Part 8 proposes the amendment of the Family Law (Maintenance of Spouses and Children) Act 1976 and this is to be welcomed. It is an area in which the Minister has a wide experience and he is aware of its direct impact. These new measures will provide for a clear distinction between those who cannot pay maintenance and those who actively choose not to pay it.
Part 13 proposes the amendment of the Registration of Title Act 1964. My understanding is that the proposed section 31 which inserts a new section 49A into the 1964 Act, now provides that an individual can make application to register a right of way as a burden which will first require the consent of the landowner and second, this will only apply in circumstances where the land is registered land. The benefit of this measure is that court applications will be avoided where all parties consent and that registration and the ownership of the lands is registered with the Land Registry. It would appear that this section will not provide assistance to those individuals who are seeking to claim an easement over unregistered lands but, hopefully, this will be eased over time, as compulsory registration with the Land Registry is extended across the country.
I welcome Part 15 of the Bill which deals with miscellaneous measures. In particular I welcome the amendment of the Domestic Violence Act 1996. This is a critical amendment which is long overdue. I am pleased the Minister has taken this opportunity to amend the Act. Women who have a child with an abuser, for example, but who have never lived together or married, are currently a very vulnerable group. Where there is a child in common, there is often continued contact between the parents after the relationship ends and this contact gives further opportunity to abuse. The Minister’s proposal in this section is very important and will have a direct effect.
Women’s Aid has drawn my attention to a lacuna in the current provisions whereby dating partners who are not cohabiting and women being stalked and abused by ex-partners are totally unprotected under the Domestic Violence Act 1996 and will remain so. Protection from domestic violence should not be contingent on current or previous cohabitation and, therefore, safety orders should be available to all parties who are or have been in intimate relationships, as set out in the United Nations guidelines on domestic violence legislation. I hope there will be further progress in this area, and I welcome the steps taken in this regard in the Bill.
Senator Ivana Bacik: I welcome the Minister for Justice and Equality, Deputy Alan Shatter, to the House. We have seen much of him already and I expect we will see more, even in this session, as he continues to introduce justice legislation. Support is forthcoming from both sides of the House for this Bill and I am pleased to offer my support on behalf of the Labour Party. As Senator Jillian van Turnhout said, it is a type of lost property compendium. All human life may be found in the legislation, from good samaritans to bankruptcy, from family break-ups to coroners, via immigration, human trafficking and domestic violence by way of meals on wheels and girl guides. As the Minister observed, the Bill refers to more than 40 Acts, comprises 15 Parts and has 14 separate themes. There is a great deal of content in it and I am pleased we will have plenty of time next week on Committee and Report Stages to tease out some of the detail. Having said that, I accept that some provisions are relatively urgently and that it would be good to see the Bill in force by the end of the session. Some of the provisions are more in the nature of tidying up, some were prepared under the previous Administration, and some reflect commitments in the programme for Government. Overall, it is very welcome legislation.
Although it is common practice to have this type of compendium legislation both in civil and criminal law, it is not ideal. Where possible, we should seek to avoid making reform piecemeal. It is inevitable that it must be done on occasion, but there is a merit to emphasising codification. A criminal law codification project was commenced under a previous Minister for Justice and I understand that work is ongoing. It is cumbersome to have to review so many different statutes in particular areas. The Minister with responsibility for public expenditure and reform, Deputy Brendan Howlin, remarked yesterday in the House that he had to trawl through 200 statutes in order to draft the Ministers and Secretaries (Amendment) Bill 2011 because there has never been a codification of responsibilities in that area. I am conscious that there has been some codification in some areas and that we have a useful resource in the www.irishstatutebook.ie website in terms of being able to see where amendments have been made. Nonetheless, we should emphasise in this House the need to codify where possible.
That quibble aside, the Bill is very welcome and will bring serious improvements to the way in which the law affects many aspects of people’s lives. The Minister has indicated that his Department will introduce more comprehensive reforming legislation in respect of some of the issues on which the Bill merely touches, notably domestic violence, where there is a commitment in the programme for Government to introduce consolidated and reformed law. I hope we will also see consolidated sex offence legislation, an area in which there is a compendium of different primary and amending legislation. It would be better to have a single Act to tidy up that area.
There is also a commitment to introduce comprehensive reform of the immigration, residency and asylum systems, including a statutory appeals system. Although the Bill includes some provisions relating to immigration and citizenship, a codified law in this area is long overdue. I have two concerns in this regard. First, it was highlighted recently that we have the lowest recognition rate of asylum seekers in the European Union. I accept that the numbers coming to this country seeking asylum have fallen in recent years but our recognition rate remains very low. International bodies have expressed concern about this and we need to examine it when reforming the law on asylum. Second, there are serious problems with the citizenship application system, with outrageous delays in naturalisation and citizenship processing. I am sure every Member has had representations on these issues. I have spoken to people whose cases are relatively straightforward but who have been waiting two years or more for recognition. Like Senator van Turnhout, I welcome the citizenship ceremony as a very positive initiative, but we must tackle the delays in the administration of the system.
We all welcome the extension of the Civil Legal Aid Act, in Part 2 of the Bill, to the victims of human trafficking. However, I join Senator van Turnhout in asking the Minister to review the extent to which legal aid is provided. The Immigrant Council of Ireland has expressed concern that the provision should extend beyond simply legal advice to cover legal representation. The Free Legal Advice Centres have also suggested the provisions do not go far enough in that the provision of legal advice to victims does not extend to representing those victims in court, nor does it protect victims of the sex industry who fall outside the narrow definition of trafficking. I hope we can examine on Committee Stage how to extend these protections.
The Minister remarked that the bankruptcy provisions of the Bill have attracted the most attention. There is a commitment in the programme for Government, under the heading of supporting small and medium enterprise, to fast-track substantial reforms to bankruptcy legislation to bring us into line with best international standards. The Minister indicated the Department is fast-tracking a personal insolvency Bill which will provide more comprehensive reform in keeping with the Law Reform Commission’s report last year on this area. However, notwithstanding that we are awaiting more comprehensive reform, it is possible to include more radical reform in this Bill. For example, I support Senators Denis O’Donovan, Paul Bradford and others in regard to the period for discharge. It is extremely welcome that an automatic discharge is being introduced for the first time, but 12 years is far too long. The Law Reform Commission’s report is highly critical of the current regime and of the Bankruptcy Act 1988, which it describes as ineffective. The report includes a useful table comparing Irish law on discharge with that in other countries. It is immediately obvious that 12 years to automatic discharge is much longer than in any comparable jurisdiction. In England and Wales, for instance, automatic discharge applies 12 months after commencement of bankruptcy, while in Australia and New Zealand a period of three years applies.
The commission recommended that bankrupt debtors should be automatically discharged on the expiry of a period of three years from the adjudication of bankruptcy. The report points out that having a more flexible regime on bankruptcy will provide a way of encouraging and promoting entrepreneurship and that this has been an influential consideration in leading policy makers to propose bankruptcy reforms. That view of bankruptcy is not present in our current law. We are moving towards it with the provision that people may apply to the court after five years and will be automatically discharged after 12. However, this reform is insufficient. I was threatened with bankruptcy at the age of 21, having been taken to court by the Society for the Protection of Unborn Children because of work I did in Trinity College’s students union. My colleagues and I were told that if declared bankrupt, it would be 12 years before we could apply for discharge. At that age it seemed an unfeasible long time, almost a lifetime. It is still seems to me an unfeasibly long term under any modern legal system. I urge a review of those provisions before Committee Stage.
The changes in regard to coroner’s courts are largely technical and the Minister has indicated that comprehensive legislation in this area is in preparation. I take this opportunity to commend the work of AdVIC, a non-governmental organisation which advocates on behalf of the families of victims of homicide. It has made useful commentary on the law on coroner’s courts and the reforms that could be introduced.
We all welcome the good samaritan provisions which are in keeping with the recommendation of the Law Reform Commission that we have a different approach in regard to the liability of the passing stranger and of those engaged in voluntary work. I echo concerns raised by others as to the definition of voluntary work in section 4. Does this go far enough in protecting everyone? For example, persons involved in providing voluntary tuition for children do not seem to fall within any of the categories of voluntary work catered for in section 4. Perhaps further consideration might be given to this matter.
I commend the Minister for his comments on the Licensed Vintners Association and the Vintners Federation of Ireland and their withdrawal of support for the MEAS code. That is an extraordinary decision, of which I was not aware until the Minister referred to it. There is no doubt that it is worthy of criticism in the House.
There was a need to reform the law on immigration in the wake of the decision in the Dokie case and this is being done in Parts 10 and 11. Why are Irish-born non-nationals not specifically referred to in section 24 which amends the Immigration Act 2004? We may return to this matter on Committee Stage because there is an amount of interest in it.
Like Senator Jillian van Turnhout, I welcome section 37 and the broadening of the protections for victims of domestic violence. It is commendable that we are moving away from the geographical constraint and recognising that the reality is that persons with a child in common, even if they have never lived together, may well be at risk in circumstances where one partner is abusive. I echo the concerns expressed by others about the stalking of ex-partners. The provision on stalking in the Non-Fatal Offences Against the Person Act provides for a very high threshold. In that context, it would be preferable if victims had a remedy available to them which would be equivalent to a barring or a protection order.
It would have been useful if the wording used in section 38 which amends the Official Languages Act of 2003 had been included in the Ministers and Secretaries (Amendment) Bill. We debated this matter yesterday in the context of the delay in its translation. As the formula used in section 38 of the Bill before the House might be more useful, there is an argument in favour of a greater degree of joined-up thinking on the part of the Parliamentary Counsel in this regard.
Senator Sean D. Barrett: I reiterate my apology for interrupting the Minister and the Leas-Chathaoirleach. However, the absence of pages 10 and 11 from my copy of the Minister’s script meant that my narrative moved from publicans withdrawing from the MEAS code to somebody falling over on a ship or an aeroplane and the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, intervening. That was too much excitement for me and the script is much better with the missing pages restored.
Senator Sean D. Barrett: There were obviously gremlins in the works when it came to the my copy of the Minister’s script. It is said that if Sam Goldwyn, the Hollywood studio mogul, was sent a script with two pages stuck together, it was returned — rejected — with the two pages still stuck together. That did not happen today. It is also said the same thing happened in the Abbey Theatre when a frustrated playwright received a script back with two pages stuck together.
Section 33 of the Bill relates to the Taxing Master. I agree with Senator Paul Bradford on the retirement age. On several occasions the Minister referred to the EU-IMF agreement which specifies that the retirement age will move to 66 years in 2014, 67 in 2021 and 68 in 2028. He has also stated a great deal is being done to comply with the agreement to which I refer. The retirement age should be extended even further. As several Senators indicated, there is a general principle when it comes to the retirement age. The retirement age for gardaí is far too low. It was challenged by a number of officers, but they lost their cases. It is anomalous to be reducing the retirement age when people are living longer and the pension burden is increasing.
Section 33 also contains a provision which extends the eligibility criteria relating to those who may be appointed to the position of Taxing Master to accountants. The Minister should delay the implementation of this provision because there is a great deal of dissatisfaction regarding — this is not the case with the Minister’s profession — the lack of a disciplinary procedure. We are still waiting for the Chartered Accountants Regulatory Body, CARB, to decide on issues such as the movement of funds in and out of banks. In order that accountants might qualify to be appointed to the position of Taxing Master, this matter should be put in order. If the Minister wishes to launch a campaign to make accountants accountable, I will join it. They should certainly satisfy the standards which those in other professions are obliged to meet.
The final matter on which I wish to comment is bankruptcy. I suppose the Minister who has reduced the term from 12 years to five will believe us to be ungrateful. There are those who are of the view that the term should be three years, while the Master of the High Court, Edmund Honohan, has indicated that in the United Kingdom the term is only 12 months. On 15 May the Master of the High Court also stated:
In the context of the reduction in the period of bankruptcy from 12 years to five, the waters have been muddied by the conduct of the banks, upon which no such constraints have been placed. One almost gets the impression that bankers in Ireland are giving those who are bankrupt a bad name. While I strongly support the direction in which the Minister is moving, I ask that he consider the context and perhaps examine the possibility of reducing the bankruptcy term even further.
Like Senator Jillian van Turnhout, I am also taken by the diverse and varied nature of the Bill. I was not so much thinking of a lost and found department as a builder’s snag list. It is certainly one of those items of legislation in respect of which everyone will find something on which they wish to speak.
I understand there is a desire to pass legislation as the summer recess approaches, but, on balance, more time should be made available to consider the issues to which the Bill before us gives rise. We were allocated some time, but the digest we received from the Oireachtas Library and Research Service was only issued yesterday. However, I accept that much of what is contained in the Bill is highly desirable and do not wish to stand in the way of its passage.
I particularly welcome what is proposed in respect of the victims of human trafficking, namely, the provision of legal advice on criminal matters by the Legal Aid Board. However, on matters of this nature we sometimes give to the victims of human trafficking with one hand and take with the other. The US State Department’s Trafficking in Persons Report 2011 which has just been issued states the Irish Government must engage more with the NGO sector when it comes to service provision for victims of human trafficking. There is a concern that NGOs have been written out of the national referral mechanism to some degree. I am aware of a case in which an NGO was dealing with a victim of trafficking who required repatriation but where, in order to access State support for such repatriation, the person was obliged to approach the relevant State services. The latter refers to the sometimes unsuitable facilities provided by the Refugee Integration Agency. These facilities are really not designed to suit the needs of victims of human trafficking. There should be a greater degree of integration of NGOs into the system in order that they might collaborate more directly with State agencies.
I wish to ascertain the Minister’s intentions in respect of an issue I have raised on many occasions in the House, namely, criminalising the users of persons involved in prostitution. We took a great step forward with the enactment of the human trafficking legislation a couple of years ago. It is interesting to note that the British legislation offers much less comfort to those who would claim that they had no knowledge that they were availing of the services of a trafficked person involved in prostitution. They are way ahead in this regard is clear. We should move in the direction the Nordic countries have taken and which they do not regret taking. We would make this country a colder house for traffickers if we criminalised the users of persons involved in prostitution. The previous Government seemed to be moving in that direction towards the end of its term and even though it is not directly related to the Bill before the House, I would be interested in hearing the Minister’s view on the matter.
I welcome the good samaritan provisions. It is the right test that it should be a standard of gross negligence before a good samaritan, or somebody who intervenes to assist another, is held to be liable as distinct from the test of ordinary negligence which would apply to voluntary organisations. We need to promote a culture of assistance, not a culture of people watching their backs or worrying about whether they will be found to be civilly liable in the event that they do what their instincts tell them they ought to do.
It is excellent that Part 5 provides for the statutory underpinning of codes in regard to alcohol. As the Minister said, it is not intended to be a substitute for enforcement but it is desirable that codes in this area, and compliance or otherwise with them, would be taken into account when consideration is being given to the renewal of licences. We are staring into the a very tough future around the issue of alcohol. I do not believe we fully realise the pressure there will be on the health service in the future as a result of current unhealthy patterns of alcohol consumption. We are staring down the barrel of a very nasty gun in that area.
I ask the Minister to consider an issue I have raised in the past and on which I know others share my view, which is that we need to break the link between alcohol advertising and the sponsorship of significant sporting and cultural events. I would like tight legislation to be introduced in that area.
I am concerned about the proposed amendment to the Official Languages Act. When it comes to the status of the Irish language, principles are very important. An important principle is that the Irish and the English language versions of legislation would be available to people simultaneously. There has already been instances of exceptions created in the NAMA legislation and in the social welfare and pensions legislation, but that is the slippery slope. When it comes to protecting and promoting the Irish language, an aspiration which most people claim they share, it is important to get it right in the little things. With the greatest of respect, I did not hear of any significant injustice caused by any delays in the provision of the final version of legislation passed because people were waiting for translations. Translation takes a certain amount of time but there would have to be compelling evidence of problems arising, as distinct from mere inconveniences, before we undermine the principle that legislation is to be made available simultaneously in both national languages. That applies a fortiori because of the constitutional status of Irish as our first national language. Beidh mé ag caint le comhleacaithe eile faoi leasúáirithe ansin agus b’fhéidir faoi leasuithe eile. Fágfaidh mé mar sin é anois.
Senator Deirdre Clune: I am pleased to have this opportunity to contribute to the debate on this Bill. I welcome the Minister to the House again. He has been here frequently and I am sure we will see much more of him judging by the legislative programme coming from the other House and from the Department
I will focus on a few measures in this Bill. Part 8 deals with amendment of the Family Law (Maintenance of Spouses and Children) Act. This legislation will now empower the District Court to regard as contempt of court the failure by a debtor to pay a maintenance order to comply with a maintenance agreement. I welcome this measure as it is long overdue. It was initiated in legislation in the previous Dáil as a result of a judgment in the McCann case, which the Minister mentioned in his contribution. What has tended to happen in many cases, as is happening in my area in Cork, is that spouses or partners to a maintenance agreement ignore it and they have been advised to do that in many cases. I have learned from speaking to court officers that a difficulty they now find is that many people ignore their commitments and obligations to pay maintenance because the threat of imprisonment has been removed. Implementation of this measure will go a long way towards improving conditions on the ground for those who are failing to get maintenance payments they are due. The consequences of that for them is that they then approach community welfare officers for financial support which those officers cannot give them because there is a maintenance order in place. Many of them are in a catch-22 situation. The measure introduced here will, I hope, alleviate that difficulty and change the position back to what it was pre-2009.
I will focus briefly on the proposal on bankruptcy. The Minister said this is an interim proposal and that he hopes to bring forward legislation on personal insolvency in the next nine months or so. In this context, the period of three years and five years has been mentioned. We welcome that there will be changes in the legislation on this area. I look forward to the introduction of a personal insolvency Bill. That is what people need. It will provide a method or process, other than bankruptcy, whereby an individual or business in financial difficulty can re-establish themselves. The proposed changes to bankruptcy law have been mooted for several years. The innovation task force and Forfás have recommended changes in our bankruptcy law if we are to encourage entrepreneurs which includes people who are willing to start up their own businesses. It is small and medium-sized enterprises that are currently experiencing difficulties. The examinership process is not open to them as it is too expensive and involves many visits to the High Court. What is needed is recognition that some businesses, although not all, can be saved and, in turn, jobs can be saved. We are speaking in a climate where there is not much sympathy for people who have been reckless, of which here are many examples to which we can point. However, there are also people who find themselves in a difficult financial position through no fault of their own because of the economic situation. Debtors have not been meeting their obligations and these people have not been paid and have consequently found themselves in financial difficulties.
The Minister is aware of the Law Reform Commission’s report in this area. It recommended that a voluntary process be set up whereby individuals and small companies could go forward under the umbrella of an officer of the court. This would be a person who has expertise in financial matters and that they would have some security and protection for a while to discuss with debtors money owed and what can be paid. It is a means of providing breathing space for companies. It exists in Northern Ireland and in UK where it has been very successful.
We want to encourage entrepreneurs, people to start their own businesses and employers to take on additional employees. It will be an important part of the recovery of this economy. We need to create the climate where that can occur. As matters stand, our bankruptcy laws are a disincentive towards establishing businesses. That needs to change. They have been described as archaic and not fit for purpose. There is a list of complaints and a list of alternatives that can and should be implemented if we are to get this country moving again. I hope we will have sight of the personal insolvency Bill. The country is crying out for it. It is not about rewarding those who have been reckless but about supporting those who find themselves in a difficult financial position. There is almost a stigma attached to becoming bankrupt here. Bankruptcy carries a bad name, but in other countries, particularly in the US, if one’s business fails, one can move on within a certain period. It is almost recognised as a badge of honour. One learns from one’s failures. One pays one’s debts to society in whatever way one can, but at some point a line is drawn and one’s energy, enthusiasm and commitment to creating jobs and developing opportunities for oneself and others are recognised and allowed to flourish. Perhaps on Committee Stage the Minister will tease out why the relevant period is five years rather than three. A change to the duration seems to be a common request from both sides of the House today. I welcome the Bill and look forward to the Minister’s deliberations on Committee Stage.
Senator Averil Power: I welcome the Minister. Like other speakers, I welcome the proposed changes concerning the provision of legal advice for victims of human trafficking but agree the provisions do not go nearly far enough. We will be giving legal advice to victims but will not be providing them with legal representation in court. As Senators Jillian van Turnhout and Ivana Bacik pointed out, the legislation will not protect victims in the sex industry who fall outside the very narrow definition of trafficking.
When considering trafficking, it is not good enough to consider the crime on its own; we need to consider why it happens. The reality is that women and many children are generally trafficked for the purpose of sexual exploitation. Ruhama and the Stop the Red Light coalition published figures showing the sex industry in Ireland was worth €180 million. This is a shocking figure. When talking about trafficking, therefore, we need to recognise it happens only to serve the prostitution industry. It is driven by the demand for prostitution and our shameful failure in this State to recognise prostitution for what it is, namely, the most extreme form of violence against women and children, and also our failure to punish the perpetrators.
As Ruhama documented in various reports, the reality is that a woman rarely chooses to be a prostitute. Rather, prostitution is seen as a survival strategy. International research highlights that the majority of women involved in prostitution were victims of sex abuse in childhood. Typically, prostitutes are poverty stricken and many are addicted to drugs or homeless. The unfortunate reality is that a large proportion of those who enter prostitution do so in their youth or mid-teens. The figures clearly belie the fact that it is choice. By contrast with these circumstances, men who buy the services of prostitutes obviously have the money to do so and also have power in the transaction. We need to see prostitution for what it is.
Our laws on prostitution are totally out of place, increasingly so in an international context. The buying and selling of sex are still not considered crimes. Soliciting is the only crime and it applies equally to the buyer and the seller. Instead of seeing women as victims, we criminalise them for soliciting and stigmatise them. By doing so, we make it harder for them to report abuse. We also make it harder for them to access health and social services and leave the very industry we claim to be opposed to, especially if they have a criminal record that they must declare if applying for a job.
I agree strongly with Senator Rónán Mullen on the need for Ireland to adopt the Nordic approach. We need to become serious about tackling prostitution and criminalise the purchaser with tough penalties. We need to recognise that the women and children involved in prostitution are victims; we should not criminalise them. We should enact spent convictions legislation for women convicted of soliciting to give them a genuine choice to have a new future.
As the Minister will be aware, as long ago as 1999, Sweden changed its law in order that it would no longer be illegal to be a prostitute but rather illegal to exploit a prostitute. This has had the very clear effect, documented in numerous studies, of reducing demand very quickly. It made prostitution unacceptable to Swedish society. Figures show that, within a few years of the enactment of the legislation, 60% of women left the industry. We should adopt this model.
We should consider measures to address the role of technology in organising and advertising prostitution. A key aspect of the Swedish approach is that not only did Sweden change its law, it also provided a network of support for the women involved in prostitution and specific initiatives to help them to exit the industry and enter a new life. I hope the Minister will consider this.
If we are genuinely committed to equality in Irish society, we must reject the idea that women and children are commodities that can be bought and sold. We must send a clear message to everybody that the paid abuse of women is a practice we will not tolerate as a society. We should enact legislation in that regard now.
I hope the Minister will take account of the fact that there are ten aspects to this Bill. While it is an omnibus of Bills, there is one aspect on which several Senators focused, namely, the exploitation of women not just through trafficking but also through prostitution. Perhaps the Minister might take a signal from this that the subject is an issue of concern to the House.
There is a growing coalition outside the House that wishes to tackle this issue. The Minister will be aware of the Stop the Red Light campaign. At its conference in April the Irish Medical Organisation passed a motion stating the use of prostitutes should be made illegal. A growing number of Members of all parties want to see real change in this regard.
I hope the Minister will return on another day for a debate on trafficking and prostitution which comprise only one aspect of the Bill. I hope legislation will be introduced that will bring about real change. I welcome and support the changes being made to the domestic violence legislation and the provisions to improve the enforcement of maintenance orders.
Senator Trevor Ó Clochartaigh: Cuirim fáilte roimh an Aire go dtí an Teach arís. Tá sé gnóthach go maith leis a chuid reachtaíocht. Bail ó Dhia air. The Minister is very welcome. I welcome the chance to speak in this debate.
Many metaphors have been used to describe the legislation before us, but I would like to compare it to a smorgasbord of legislation. It covers 40 Acts with 15 Parts. Unfortunately, the Sinn Féin perspective is that this is a little like saying, “Eat your Brussels sprouts with the meat, gravy and potatoes that you like.” Although we welcome most of what is being suggested in the legislation, there are a number of sections, particularly sections 10 and 11 and the section on the Official Languages Act, that we find very difficult to support. I will outline why this is so.
The discussion on the retirement age of the Taxing Master, 65 years, was interesting. It is a little unfair to compare this discussion to the one we had earlier in the week. The argument against increasing the retirement age to 68 years in the normal course of events is that certain individuals who might have been in blue-collar employment all their lives might have worked a lot harder than others, possibly physically. Many issues must be considered in this debate rather than just focusing on the circumstances of the Taxing Master.
I agree with a large number of provisions in this legislation, which I welcome wholeheartedly. I welcome, in particular, the good samaritan provision which Sinn Féin believes is a wonderful move forward. The provisions on maintenance payments and domestic violence are also welcome.
Sinn Féin also welcomes the provisions for the security industry, although some questions arise in this regard. If we had legislation such as this when the Corrib oil and gas controversy was occurring, some of the incidents might not have happened in that there would have been better vetting of the security firms used. The use of private security firms begs the question as to how one vets their staff. How does one take their experience into account, in addition to their places of origin and backgrounds? If they come from another jurisdiction or have experience in another country, how will this be taken on board?
How can those who work for private security companies be vetted? Moreover, if external inspectors are to be brought in to do the work of the agency, could that potentially be open to abuse? Who are the people concerned and from where will they come? Will they be connected to some of the companies that provide services, etc.? Sinn Féin considers this to be an issue that should be re-examined before Committee Stage.
On the issue of licensing laws, I have a particular interest in the subject of alcoholism and I strongly support the comments of previous Members, particularly those of Senator van Turnhout. Senator Mullen suggested that we would be staring down the barrel of a gun on this issue in the future but I disagree with him in one sense. We already have gone far down that barrel and Ireland already faces a crisis in respect of alcoholism that has been left unattended. Part of the problem concerns the lack of resources being devoted to the addiction services, which are completely underfunded and overstretched. People in communities who already suffer from these problems are unable to access services to help them in a timely fashion.
I agree with the call for the vintners to come back on board in respect of the MEAS organisation. It is important that the alcohol industry should live up to its responsibility in respect of alcoholism. However, as Senator van Turnhout noted, it should not simply be the industry that comes on board as all partners in society must do so to ensure that alcoholism is dealt with in a timely fashion with those who suffer from alcoholism being in the primary position.
Sinn Féin welcomes the developments in respect of bankruptcy law and I wish to turn the debate towards a different scenario. The important point concerning the bankruptcy issue in this debate is to consider what caused people to become bankrupt in the first place. Some people have entered bankruptcy through their own fault and as Senator Clune noted, have reached this position through their recklessness and failure to manage their affairs properly. However, many people have become bankrupt because of the actions of third parties and perhaps the legislation should address this point. Should banks be held to account because of their role in over-extending credit facilities to those who should not have been given access to so much credit?
As for third parties, I have in mind a number of scenarios pertaining to construction. For example, I am familiar with a number of small subcontractors in the Connemara Gaeltacht and the Galway area who found themselves bankrupt through no fault of their own. They had been working for larger companies and had done jobs in good faith but were either never paid or were underpaid for their work and are now bankrupt. What is to be done with those who created the conditions that made those subcontractors bankrupt? The crux of the issue is that there should be leniency in respect of someone who has become bankrupt through no fault of their own. In the opposite case, when someone has become bankrupt through their own volition because of their own recklessness and a failure to manage their affairs properly, this also must be taken into account.
Another point is that bankruptcy should not become an easy way out for people. One should avoid enabling people to become serial bankrupts, that is, where they get into a particular difficulty and go bankrupt but then return to the system two or three years later only to delve into reckless trading once again. I am sure the Minister will take into consideration such questions in the context of the legislation.
The area of the legislation under discussion with which Sinn Féin has greatest difficulty is Part 11, which pertains to immigration and which raises a number of issues. My party is concerned by the provisions in the proposed new sections 11 and 12 and in particular, wishes to express its concern and to raise questions on the provision to allow naturalisation fees to be charged on application. The State already charges an extraordinarily high fee of €950 upon approval of the application. The Minister should indicate whether two charges are to be levied or whether the approval fee will be removed. If not, this process appears to be prohibitively expensive. Will people be charged twice?
On the one hand, I concur with previous Members who spoke of aiding people who were trafficked here to get free legal aid and on how such people should be given representation. On the other hand, Part 11 provides that were such people to walk down the streets of Galway, Limerick or Dublin without passports or were they to have no passports through no volition of their own, they could be arrested for a criminal offence. Sinn Féin has great reservations about the use of enforcement measures by the Garda, as well as criminalising such people through a failure to carry their passports. Sinn Féin also has concerns regarding the potential undertaking of racial profiling under this provision.
Le filleadh ar mo theanga dhúchais, mar dhuine a labhraíonn Gaeilge de ghnáth agus, d’ainneoin mo chuid Béarla, níl mo chuid Gaeilge ró-mhaith, tá fadhb an-mhór againn agus cuireann sé as go mór dom an méid atá tarlaithe maidir le hAcht na dTeangacha Oifigiúla. Tugadh isteach é i gcás nó dhó roimhe seo agus is cosúil anois go bhfuil sé i gceist é a bheith mar ghnáth chleachtas ag an Rialtas neamhaird a dhéanamh ar mo chearta bhunreachtúla agus ar chearta bhunreachtúla phobal na Gaeilge, agus Acht na dTeangacha Oifigiúla a chaitheamh i dtraipéisí. Aontaím leis an Seanadóir Ó Maoláin go bhfuil seo mícheart agus míchóir.
Tá an Rialtas ag dul in aghaidh a pholasí fhéin maidir le Straitéis 20 Bliain don Ghaeilge, is é sin an Ghaeilge a cur chun cinn ar gach leibhéal. Munar féidir linn ceannródaíocht a thaispeáint anseo i dTithe an Oireachtais maidir le sin bheadh sé chomh maith an straitéis ar fad a chaitheamh i dtraipéisí.
Chuir sé an-díomá go deo orm gur thacaigh an Seanadóir Bacik go hiomlán leis na moltaí atáá dhéanamh ag an Aire maidir le hAcht na dTeangacha Oifigiúla a chur ar leataobh nuair a thagann sé go dtí foilsiú Bille. Níl aon chruthúnas ann gur déanadh éagóir ar dhuine ar bith mar gheall ar Acht a bheith foilsithe níos deireanaí i dteanga oifigiúil amháin nó sa cheann eile. Bheinn ag iarraidh ar an Aire é seo a thógáil ar bord. Beimid á phlé arís nuair a thagan an Bille os ár gcomhair ar Chéim an Choiste. Beimid ag cur i gcoinne an Bhille seo ar an mbunú sin amháin, más gá sin, chomh maith leis na forálacha atá i gceist maidir le Roinn 11.
Senator Michael Mullins: I join with other Members in welcoming the Minister to the House and in complimenting him on the comprehensive legislation he has introduced today. I wish to pick up on two points. First, I greatly welcome the proposed good samaritan provision and it is right and proper for it to be enshrined in legislation. Will GAA clubs and other sporting organisations be regarded as organisations covered under this Bill?
Second, I greatly welcome the section on intoxicating liquor. As previous speakers have observed, this pertains to one of the greatest crisis within our society, particularly within the rural area from which I come. While the drugs issue is a major problem in cities, as well as in rural Ireland, alcohol is the major addiction problem in the latter. I am greatly concerned by the increase in the number of outlets in recent years from which young people in particular can so easily access alcohol. It can be procured in petrol stations, supermarkets, off-licences and many other outlets to which people have access and which do not appear to be regulated or controlled as well as one might wish. Consequently, I support what the Minister is attempting to do.
I would welcome any measure whereby the numbers of outlets from which alcohol may be purchased could be reduced because of the human costs and the cost to the State of providing facilities for those who suffer addiction problems remarked on by previous speakers. I agree with Senator Ó Clochartaigh’s point that the resources provided to facilities for people who are addicted to alcohol are inadequate. My home town of Ballinasloe had a fine facility that rescued many people from the depths of despair and who now are playing a major role in society. They were saved by that fine facility before the old Western Health Board in its wisdom decided to close it. It was never replaced and facilities were never provided to allow access for ordinary people who needed help with their addictions.
I compliment the Minister on the comprehensive nature of the Bill. Like other Senators, I am a little concerned that it is not possible to provide Bills in the Irish language on as timely a basis as Members of the House would like. This is a section to which the Minister should give further consideration to see whether progress can be made that would satisfy all Members of this House. We owe it to citizens to make legislation available in the first official language.
Senator Feargal Quinn: It is a delight to find a Minister who hits the ground running, comes into office and states he will get things done. It is quite novel to come up with a civil law (miscellaneous provisions) Bill where one lumps so many matters together and the Minister has done so with an ability to get them passed quickly. I encourage him to continue doing that.
Numerous matters were covered by the Minister to whom I listened carefully here today. In particular, I do not understand the area of gross negligence and negligence in law. It seems that the law is correct. It states that if one is negligent, one is guilty. However, it seems on so many occasions the courts state that a poor woman fell in a shop or house or on a street, it was not her fault and she must get an award. I do not quite understand that. Particularly in the case of public parks and other places where children are running or something happens, the law states that one must be negligent and I do not understand cases where negligence is not enforced on that basis. The Minister’s good samaritan provision is good.
There was an incident years ago in one of our supermarkets where a customer entered in the whole of her health, slipped on a grape and cracked or hurt her ankle badly, and she later sued and we went to court. We were able to bring in to court in our defence that at the time we had two trained staff working on cleaning the floor and they were interviewed by the judge. The judge then stated that he could not find the company negligent. Even though the woman entered the store in the whole of her health and cracked or broke her ankle, she did not get a penny. She could not understand that because her lawyer had said she would get a few thousand for this. The law is quite solid, stating if one is negligent then one pays.
It is interesting that we are using the term “good Samaritan” from the Bible. On one occasion in Israel, the guide showed us where it all occurred and it was only after we had gone away that we realised this was a parable and did not actually happen. It is a reminder of how the term has come into the language, and what a good way to come in. I am sure the Samaritans were not terribly happy with always being treated in a different way. I mention it because recently I saw two men on the road where I live and spoke to them about what they were doing there. They were repairing potholes on a voluntary basis. I did not know them but they lived somewhere in the locality and there were potholes, and they were merely going around repairing them. Somebody said to me afterwards that if they were volunteers, there was a danger that they could be found negligent if somebody had a fall. I hope this provision will be able to solve that.
I am particularly pleased that the Minister outlined the instance of those who clean the footpath outside their shops. On a programme I have been doing recently, we got a number of the traders in one area to agree that they all would sweep the street outside their shops on the days the local authority did not do so, but then one stated that there is a danger they could be held liable. That is good Samaritan territory. We should find a way in Ireland where we are able to do things on a voluntary basis. Others have mentioned it, for instance, Senator Mullins spoke about sporting activities. There is little doubt that much can be done in that regard.
I really was impressed with what the Minister stated about the voluntary MEAS code for moderate drinking and what happens if it is not accepted by the two organisations, which I did not realise were not supporting it. It is quite serious if an organisation will not abide by that voluntary code. There is something else behind this, although I am not quite sure what. Maybe the organisation must pay a good deal of money for it or, more likely, feels it favours off-licences over public houses and there may be a split in that regard. The way to proceed is to state that where one is in danger of being in breach of that code it would be taken into account on applying for a licence.
A number of Senators, including Senator O’Donovan, spoke of bankruptcy. I am delighted the Minister has reduced the waiting period from 12 years. On Senator O’Donovan’s point, we must take into account that in Britain the waiting period is only one year under certain conditions. I well remember many years ago a man who had opened a business, done his best and not succeeded; he was still being blamed years afterwards. I do not think he went bankrupt but when he got a job elsewhere, those to whom he owed money and had let down did not forgive him. He was able to get back on his feet, although he had not actually been bankrupt. F.W. Woolworth, 130 years ago, went bankrupt three times before he succeeded in becoming the wealthiest man in America. There is a different attitude in the United States and in other parts of the world that entrepreneurs do not always succeed first time to which we need to give consideration. I question whether five years is even too long, particularly if Britain finds that it is working quite well with one year. I can well understand the concerns of those who have been let down, are owed money and are deeply frustrated at the fact that they see the person who owes them money back on his or her feet again and in business, but we need to encourage entrepreneurship.
Senator Bradford mentioned Senator Leyden’s Registration of Wills Bill 2011. I am not sure what is happening to that reintroduced Bill. If the Minister has such civil law legislation covering so many matters, perhaps something like that could be considered at this stage as well.
Minister for Justice and Equality (Deputy Alan Shatter): I thank everyone who contributed to this debate. This really is a potpourri of legislative proposals. I am sure we all could go on inventing different ways of describing it. Mention was made of a smorgasbord and I must say, as we got to a quarter to two, I would have been delighted if someone had brought one into the Chamber, but I am sure it is contrary to the rules of the House.
I will try to address most of the issues that Senators have raised. If I do not address all of them, perhaps they will forgive me because we will have an opportunity to deal with them on Committee Stage.
I will deal with the bankruptcy issue first. I emphasise that the provisions in the Bill are very much a first step. The insolvency Bill, on which substantial work has been done, will provide an entirely new legal architecture for dealing with bankruptcy and insolvency issues. This is by way of an interim step. It is also by way of facilitating, if I could put it this way, tidying up the legacy of the old law. From the work that has been done, by allowing for automatic discharge after 12 years it allows that part of the Courts Service which deals with this area and the official assignee to terminate in excess of 300 legacy bankruptcies, and there is a certain administrative procedure required for that when we enact this law. That, in a sense, will prepare for the insolvency Bill that is coming along.
I thought long and hard about what should be the timeframe, in the context of the three-year issue, five-year issue and six year issue. I had a concern that the six year term the previous Government provided for in this particular part of the legislation that my predecessor published was too long. We wrestled with three, four or five years and there is no wisdom of Solomon on this issue.
I am conscious that in the United States in a spirit of entrepreneurship, issues of insolvency are addressed a good deal quicker than in our legal system. The one-year rule which operates in the UK is now giving rise to difficulty. We have to remember that when people are rendered bankrupt it is because they are incapable of paying their debts. There are some people who, as a victim of circumstance, are incapable of paying their debts. They may have conducted their lives in a reasonable fashion and operated their businesses in a reasonable fashion and applied some degree of business intelligence to the way they have operated. A business can fall, for example, because another business it is dealing with has been managed extremely badly and there was anticipation that they would have no difficulty in such businesses meeting their financial obligations. That business collapses. It may have been fraudulently trading or far too much money was being drawn by those engaged in that business by way of payment in circumstances where the turnover did not provide for that level of withdrawals and expenditure, and a related business which was acting as a supplier can collapse in those circumstances. There is a good reason the business which does so collapse and if an individual is rendered bankrupt as opposed to a company liquidation, that person should be able to extricate from bankruptcy a good deal quicker.
There is also a good reason as to why in the business which traded fraudulently or very ill-advisedly or with gross negligence, to come back to Senator Quinn’s phrase, the person responsible for that business should not necessarily extricate from bankruptcy with great speed. That is because of all those to whom money is owed who were essentially taken on some business ride by those responsible for that business.
What we have to do in our bankruptcy laws is to provide a balance between allowing people who have got into major financial difficulties, through no fault of their own, or who have traded and operated a business in good faith which is the victim of circumstances, to start anew while ensuring that those who deliberately run businesses into the ground and deliberately misuse their position, for example to acquire supplies from others, are not let off the hook and retain some real obligation to pay their debts.
My understanding is that in the UK there is a concern that the one-year rule is facilitating people who have traded in a very ill-advised and negligent fashion to extricate themselves from all indebtedness. We have a problem in this State. Bankruptcy affects individuals personally. We have a problem where people who trade through the company structure are trading in a manner which is irresponsible and does not result in Garda investigations when their company goes bust, or the Director of Corporate Enforcement becoming involved because the company may be small. However, when the company fails it leaves a trail of indebted individuals, often including employees whose wages have not been paid for a considerable period, and within a few weeks they form another company and start trading in exactly the same way. That is not an issue for our bankruptcy laws unless the individuals concerned have gone personal guarantors for debts which have arisen or for bank borrowings which have occurred. There is a problem in achieving a balance.
I am not going to pretend that the five-year rule has some magical impact on all of this but what we want to do by way of an interim measure is put in place some initial reforms and see how they work in practice and make sure we are not creating unintended consequences or not giving rise to a situation where those who have traded irresponsibly and who have caused great difficulty for others to whom they owe money, feel there is a simple way out 12 months later and can start all over again.
We decided to initially insert a period of five years and to see how it worked in practical terms. We also wanted to learn more from experiences elsewhere as we are developing the insolvency Bill and we will come back to this issue to dealing with the general insolvency area.
I acknowledge my colleague, Senator Clune, who has some particular expertise in the area of insolvency and who as a Fine Gael Front Bench colleague in the previous Dáil did considerable work and research in the insolvency and bankruptcy area and produced a very important report on how we should reform our law. That report will influence the development of the insolvency Bill. I hope to bring that Bill forward with reasonable speed and we will have a very different structure for dealing with insolvency and bankruptcy when it is enacted.
On the consideration of the 12-year period which Senator O’Donovan and others mentioned, we have a situation in our legal system where if one is rendered bankrupt one has the capacity to be bankrupt until the day one is buried. It is a reasonable coincidence that this Bill is dealing with bankruptcy and coroners because there is an odd connection between them in that context.
On the 12-year period to facilitate a discharge from bankruptcy even in circumstances regarded as priority debts which normally must be discharged, again that is to allow us to do some initial work in dealing with legacy bankruptcies. All these issues will be given further consideration as we develop the insolvency Bill. However, because this is a Bill dealing with a variety of measures I wanted to start the process and at least give the Houses an opportunity to give further consideration to this area of our law which will feed into the work we are doing on the insolvency Bill.
I was particularly taken by Senator O’Donovan’s contribution in respect of walks on Sheeps Head. I appreciate the invite but I do not know if I will be able to join in. This legislation refers to an organisation or volunteer group, as defined in the legislation, and if one is a member of such an organisation one falls within the ambit of the protections provided in the legislation. If a group of individuals goes for a walk together but they are not an organisation, I am not sure how a negligence issue could arise which would result in someone being sued unless, arguably, I fall over the cliff because someone trips me up along the route. That does not fall within the ambit of this legislation.
Deputy Alan Shatter: That is a different issue. If one is talking about a professional guide who is guiding a group along the route there is a separate area of the law which would be applicable. If the guide leads people over the cliff, there is a certain protection and it is a good idea we have it in place to cover the people who might be the victims of the cliff fall and who are fortunate to survive it as a consequence, perhaps, of the guide being blind drunk as he led them along the side of the precipice. It is reasonable that there are some protections in place for that scenario.
A number of Senators spoke about the vintners. I appreciate the support given for my comments. It is regrettable that the announcement to which I referred was made on 20 June. It got little public notice at the time because there are so many controversial issues for the media to cover. As Minister for Justice and Equality, I thought it was a serious step and I am very concerned about whatever disagreements there might be between those engaged in the on-licence and off-licence trade. There is a social duty and responsibility and the guidelines put in place by MEAS fulfilled a very important function. They were of considerable advantage to the drinks industry. Not only did they prescribe an appropriate socially responsible roadmap, in a sense they also put down a marker that those engaged in the sale of alcohol were prepared to recognise certain social responsibilities and obligations and abide by them. It is unprecedented that it would be announced that we were now ditching and abandoning them and no longer complying with them. I greatly appreciate the support given by Senators for what I have had to say on the issue.
Senator Paul Bradford, like Senator Denis O’Donovan and others, raised the bankruptcy issue. Others raised the issue of the retirement age for the Taxing Master. In the context of where matters stand, we believe it appropriate to provide for a retirement age of 65. It is not an issue of major consequence, but there is an issue as to the length of time an individual can undertake work of this nature. This is very much an interim measure and the particular provision will fade into irrelevance once we enact the legal services Bill. We will look at this issue.
Senator Sean Barrett made reference to accountants. There may be a little confusion. The job of the Taxing Master of the High Court essentially is to determine issues of dispute in relation to legal costs. The Taxing Master will deal with a situation where there has been litigation and an order has been made by the courts which requires the losing side to pay the legal fees of the winning side. Where there is a dispute as to what the fees should be, the Taxing Master will adjudicate on the appropriate sum payable by the losing litigant by having regard to the nature of the work undertaken by the solicitors and counsel who represented the successful litigant. The Taxing Master also has a function where there is a dispute between a client of the legal profession about the fees charged by a solicitor or a solicitor and a barrister.
The only individuals who can be appointed Taxing Masters are solicitors. Barristers are excluded from such appointment, which does not make a huge heap of sense. The other persons involved in the process are not ordinary accountants but legal cost accountants. Legal cost accountants are individuals who are expert in the law relating to legal costs, the preparation of legal cost bills, assessing the fairness of such bills and determining and recommending to the legal profession appropriate fees to charge based on work undertaken.
This proposal does not envisage accountants generally being appointed as Taxing Masters; they would not have the skill or expertise to take up such an appointment. It will extend the possibility of appointment to those who, frankly, have the greatest expertise in this area because they are the ones who regularly appear in the Taxing Master’s court to make submissions and debate these issues. When it comes to the Taxing Master’s court, even to members of the legal profession, some of the principles applicable and the comparators used in previous cases would be something of a mystery. It is the legal cost accountants who have the expertise. Many years ago I believed they should have been eligible for such appointments because they were very much specialists in the area and as such it is an appropriate step to take.
Senators Paul Bradford, Ivana Bacik, Jillian van Turnhout and others have raised the issue of human trafficking and the tragedy that afflicts women and children who are the victims of such trafficking, and, in particular, the provision in the legislation which essentially deals with the provision of legal aid. What we are doing is putting in place a statutory mechanism to ensure the victims of human trafficking will have a legal entitlement to legal advice. The criticism is that we are not providing for legal representation in court cases. The reality is that in our criminal justice system court cases are prosecuted by the Garda or the Director of Public Prosecutions; the defendant is represented and those who are the victims of a criminal offence give evidence. We do not provide for legal representation for those who have been the victims of a criminal offence.
I do not want to diminish the impact on individuals of human trafficking or being forced to engage in prostitution as a victim of human trafficking; I do not want to diminish in any way the effect on their lives of being caught in such appalling circumstances, but let us consider other areas of the law. If any of us in the House is mugged on the street tomorrow or if any member of our families is the victim of a burglary or other criminal conduct, the Garda will investigate, the Director of Public Prosecutions will prosecute and the defendant and the State will be represented by lawyers in court. None of us would go along with our lawyers to court, even if we could afford to pay them, because we would have no role or function in the prosecution process. What is important — on occasion there is confusion about this — is that those who are the victims of human trafficking understand their legal rights and the legal process, the benefits to them of co-operating with the Garda and that they have a lawyer who can explain to them the workings of the criminal justice system if there is to be a criminal prosecution. These are very important issues to be addressed and for the first time in this legislation we will provide for, by way of statutory provision, such legal assistance.
I thank Senator Jillian van Turnhout for mentioning the citizenship ceremony. Senator Ivana Bacik raised the issue of delays in processing citizenship applications. When I became Minister for Justice and Equality, there were 22,000 citizenship applications outstanding in the Department. Of these, 17,000 had been waiting for a decision for in excess of six months and far too many had been waiting for a decision for in excess of two years. Some had been waiting for a decision for closer to two and a half or three years. When the figure was averaged out, 17,000 had been waiting for a decision for approximately 25 months.
As someone who in opposition had been critical of the delays in processing citizenship applications, in my early days in the Department I had meetings with officials. I inquired about the systems applicable in processing such applications. What Senators may not realise is that the Minister must sign off on all applications. Citizenship is either granted or refused, but, ultimately, it requires the signature of the Minister.
The section of the Department which deals with citizenship applications, which is based in Tipperary, explained to me how the system worked. We examined where the problems were and I looked at putting in place a new business system and adopting a new approach to dealing with applications. I brought the matter before the Government and advised it on many of the changes introduced. There is available a statement which details them at some length. The effect is that I have dealt with more applications and made more decisions in my first three months or so as Minister than were dealt with last year. Just over 5,000 applications were dealt with in 2010. As of last week, more than 6,000 applications had been processed. My objective, which I believe is achievable, is to get to a position by late spring or early summer next year whereby all citizenship applications will be processed within six months unless some exceptional difficulty or circumstance arises.
On how we deal with applications, the system has been modified to ensure that it is more efficient and that information which comes to me, as Minister, is more readily accessible in terms of dealing with, for example, bulk applications in relation to which there is no controversy or an application in respect of a spouse who is married to an Irish citizen, in respect of which no great difficulty or complexity should arise. We have arranged for different streams of applications to be dealt with.
Senators may not be aware that up to now a person granted citizenship would not receive his or her letter from the Minister for Justice and Equality until two or three years after the application was made. The letter would instruct the person to go to the local District Court to obtain an appointment — which may be two to four months later — to swear a declaration of fidelity to the State in front of a district judge. A person might have had to hang around the court watching a couple of criminal trials before being called or the judge might have dealt with the case at the end of the day when tired. The system attached no importance to becoming an Irish citizen. As a consequence, we have devised an appropriate ceremony that makes the event meaningful and shows that we as a country respect those who wish to become citizens of our country.
The first citizenship ceremony was held a few days ago. It was, for me, an emotional event. Everyone who attended was extraordinarily emotional. Some 73 new Irish citizens were sworn in on the day. That leaves approximately 4,000 people who have been granted Irish citizenship, with whom the courts cannot possibly cope. I want to ensure the backlog we are addressing does not become a court backlog. There will be a series of further ceremonies during which large numbers of people, properly granted citizenship, will be sworn in as citizens. The pilot worked well and we hope to hold more ceremonies at the end of July through to September. To ensure that those who have been granted citizenship get their papers at as early a stage as possible, we may, to assist them, truncate the ceremonies so that a number of people can become Irish citizens.
The template of how we are to this into the future is that set down in Dublin Castle. There will be a series of ceremonies of that nature. Those ceremonies will become the manner in which we deal with citizenship ceremonies on a permanent basis once we get back to the six months’ rule. In the meantime, individuals who are not available to participate in a ceremony can still use the District Court system. People will not be prohibited by an ability to attend at a particular ceremony. People will be informed of dates of ceremonies. I will also on occasion invite Members of this House to attend such ceremonies.
The feedback for what occurred last week has been extraordinary. The people who engaged in the ceremony expressed great support for the new approach being taken by Government. It is important we send out the message that we welcome those who lawfully live and work among us, are part of their community and wish to obtain citizenship and that we welcome the contribution they will make to Ireland. I am not sure we have always approached it in that way.
A number of Senators commented on the domestic violence legislation. It is my objective to bring forward a codified reformed single domestic violence Act. I take the point that this is not a great way to legislate. As I stated, 40 different Acts had to be examined to produce this legislation. It is hoped we will have an opportunity to not alone reform areas of law but to codify them. Had I tried to address each of these areas in a single Bill, three-quarters of the reform would not have seen daylight until 2012 and there would not have been parliamentary time to deal with them.
Senators referred to domestic violence and maintenance issues. Senator Clune mentioned her experience in Cork. It is of particular importance that we provide the protection necessary. Other amendments are necessary in this area. For example, there is no reason an individual stalked by someone should not be entitled to an order that is the equivalent of a safety order. While there is protection in other legislation for someone who is the victim of stalking, I am examining this issue. The nature of the amendment that had to be framed to deal with that issue is a little different because of the definition issues that have to be addressed. If it is possible to include such provision in adequate form in this Bill, as we go through it, I will do so. If not, it will form part of the codified reforming measure I hope to produce in the future.
I have dealt with most of the issues raised by Senators. Senator Power and others raised the issue of criminalising those who use prostitution services. This issue is under review in my Department. An examination is being conducted and the Department has received a report on it, which I have yet to consider in terms of how we might proceed. The Department is examining what the Swedish Government has done in this area. I want to be careful in terms of how we deal with it. I am conscious of the difficulties surrounding women who engage in prostitution. From time immemorial, prostitution has been a reality. Governments of different centuries have tried to address it in different ways, often not succeeding in their efforts. We will examine this issue carefully. I have no doubt we will come back to it on another occasion. I do not want to express any definitive or final views on the matter.
Senator Mullins asked if the legislation will cover GAA clubs. Organisations — which GAA clubs are — engaging in volunteer work are, as I understand, volunteers within the definitional provision in the legislation. Senator Quinn raised issues around negligence and told us the grape story which relates to the success of his company when a person slipped on a grape in a store. I suppose that could be described as the grapes of wrath case. Obviously, the judge listened to the evidence and the finding was that business which employes people who carefully mind premises cannot be found to be negligent. As customers are going through, every issue arising cannot be addressed within a few moments. There are occasions in the courts when people take cases alleging negligence against others and the cases may be nothing more than somebody trying something on. They would have no substance but the hope is that where people litigate, they will only do so in good faith, with the courts hearing such cases with care and making appropriate decisions.
There have been instances of the courts throwing out cases, with judges harshly criticising people who have taken what could be described as vexatious or frivolous actions. Some years ago there was a concern that some people were regularly taking actions seeking damages for negligence, and on a repetitive basis such people appeared to have themselves injured. The courts took a very strong line when that became apparent. Negligence plays an important role in the provision of protection in civil law for the public in particular areas, and it is of some concern and importance that it is not a grounds for litigation that is abused and misused. It should not put those against whom litigation is taken under unfair pressure, resulting in them incurring unnecessary expense.
I hope I have covered most of the issues raised today and that Senators will forgive me if I have not. We will have an opportunity to tease our way through the Bill on Committee Stage and I thank the House for the helpful and constructive comments made. I look forward to the Committee Stage in this House as it will be my first occasion as Minister to take Committee Stage of any Bill we have published. It will be a first for me in the Seanad.
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