Check against delivery

I move: that the Bill be read a second time.

Cathaoirleach,

The Long Title of this Bill is unusually long. It refers to the many Acts of the Oireachtas that the Bill amends. This is an indication of the scope of the Bill and the many reforms of the law that it seeks to achieve. The number of Acts referred to in the Bill is also indicative of the size and complexity of the Bill. Over 40 Acts are referred to in the Bill. Moreover the Bill has an unusual number of Parts – 15 in all – and that too demonstrates a Bill of some substance.

I am indebted to the House for taking the Bill at short notice given that it was published only on Friday last. But I think you will appreciate that there are some very worthwhile and wide ranging measures in the Bill.

The Bill provides for amendment of the law on civil legal aid, civil liability, private security services, intoxicating liquor, equality, bankruptcy, maintenance of spouses and children, coroners, immigration and citizenship, conveyancing, taxing-masters, personal injuries, solicitors, statutory declarations, domestic violence, official languages and courts matters. The many changes provided for strengthen the law and make it more efficient and effective. In turn, some of the changes will facilitate change programmes in several of the agencies that operate under the aegis of my Department.

This Bill introduces a number of important reforms in our law across a broad range of areas.  These include bankruptcy law, the  enforcement of maintenance orders, additional domestic violence protection, the amalgamation  of the Coroner Districts of Dublin, protection of good Samaritans and those engaged in voluntary works, 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 in it and addressed a significant number of additional areas of our law.

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 have already got more attention than anything else.

The most critical change proposed is in the replacement of section 85 of the Bankruptcy Act of 1988 so as to provide that the period for application to the court for discharge of bankrupt persons be reduced from 12 years to 5 years. The discharge does remain 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 I think 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 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 commitment under the EU/IMF Programme of Financial Support for Ireland is to publish the Bill in Quarter 1 of 2012. It is my objective to publish the measure ahead of the EU/IMF deadline, if possible.

 

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.

 

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 the objective also will be to create a system that avoids as far as possible the need for expensive bankruptcy procedures and court involvement. 

 

Cathaoirleach,

 

Part 14 of the Bill in relation to the Office of 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 5 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 and of the legal professions. The time-line for publication of those proposals is Quarter 3 of this year.

 

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.

 

I would also like to take this opportunity to inform the House that I intend to bring forward a further amendment in this area at 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. 

 

I want to turn now to Parts 12 and 13 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 entered into operation on 1 December, 2009, updated the law concerning the acquisition of easements and profits a 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 - i.e. what is referred to as acquisition by 'prescription' - it may never have been registered and 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 increased workload for 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 and 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.

 

In order 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’ for the guidance of practitioners. The amendments to the 2009 Act also extend the 3-year period during which existing rights of way must be registered to 12 years, i.e. from December 2012 to December 2021.

 

Part 2 of the Bill gives statutory backing to allow the Legal Aid Board to provide legal advice in relation to criminal matters to alleged victims of human trafficking offences. 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.

There are dedicated units dealing with human trafficking and assisting victims in my Department, in An Garda Síochána, in the Health Service Executive and in the Legal Aid Board as well as dedicated personnel in the Director of Public Prosecutions Office 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 (GNIB) – they are immediately offered access to a range of services. These include accommodation with the Reception and Integration Agency (RIA), medical and support services through a HSE care plan based on the person's individual needs and legal services provided by the Legal Aid Board.

 

In relation to enforcement, the Garda Síochána have identified trafficking in human beings as one of their priorities in the Annual Policing Plan and have established a Human Trafficking Investigation and Co-ordination Unit in GNIB.

 

Part 3 of the Bill 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 in order 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.

 

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 who are involved in the running of a security company. This will augment further the controls on the management of security companies in addition to tax certification and other compliance measures which are already in place.

 

Amendments provided for in the Bill also facilitate changes in the fee structure of the Authority and it will allow the Authority to appoint persons, 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 6 months, during which the applicant can prove s/he has the necessary competence to perform the security services in question. The Authority may, in exceptional circumstances, extend the temporary licence for a further 3 month period, if 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 want to stress that such codes are intended as a practical mechanism for promoting 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 Gardaí 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 want to 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 (RRAI) - with Mr Padraic White as Chair - 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" organisation was established in 2002 by the Drinks Industry Group of Ireland (DIGI).  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^th June by the Licensed Vintners Association (LVA) and Vintners’ Federation of Ireland (VFI) of their decision to withdraw their support from the MEAS 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 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. 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 also to take into account legal decisions at both national and EU level.

The amendments provide that:

 

- 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 2 years' remuneration or €40,000, whichever is greater, to provide for greater redress in situations of low-paid employment.  This is designed to align the text of national law more closely with 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 matters, to making it as cost-effective as possible. In the meantime, in Part 9 of the Bill, I am providing for some early reform of the coroner system to provide for the amalgamation of districts in Dublin and for certain other matters in relation to the filling of a vacancy of the office of coroner or deputy coroner.   

 

Part 10 of the Bill 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 Ebere Dokie v. DPP, HRC, Ireland and the Attorney General, that section 12 of the Immigration Act 2004 was inconsistent with the Constitution. It also provides for a flexible system of fees for certain immigration services.

Part 15 of the Bill proposes a number of 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 their child, even where the parents do not live together and may never have 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 protections of the Act are 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 of time before one of them can obtain a safety order. In line with a commitment in the Government Programme, I have asked my Department to develop proposals for a stand alone Bill, to amend the law further in relation to domestic violence.

 

The Personal Injuries Assessment Board Act 2003 is amended in Part 15 of the Bill 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 PIAB 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, Richard Bruton, T.D.

 

Section 7 of the Official Languages Act 2003 (which came into effect in July, 2006), provides for the printing and publication of Acts of the Oireachtas in both official languages simultaneously. The amendment in Part 15 of the Bill 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 piece of legislation which is not readily accessible. But 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, Jimmy Deenihan, T.D.

Part 15 also makes amendments to the Second Schedule of the Courts and Court Officers Act 1995 so as 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 waive notice periods for intention to marry or enter a civil partnership; make orders in certain circumstances relating to notice of applications to appoint a care representative for persons lacking mental capacity, a function which was conferred on them under section 22 of the Nursing Home Support Scheme Act 2009; to enlarge or abridge the time for service of documents or doing any act; and to make an order enabling the title to land pass from a deceased owner to a successor in title.

 

Inevitably, for a Bill of this kind the addition of still some further measures is being contemplated and if these are ready in time I may be seeking your further co-operation for 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, measures that 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.

I commend the Bill to the House.