Civil Law (Miscellaneous Provisions) Bill 2011 Second Stage – Dáil Éireann Speech by Mr. Alan Shatter, T.D., Minister for Justice, Equality and Defence
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12 July 2011
I move: that the Bill be read a second time.
There are many important provisions in the Bill on a very wide range of measures.
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 changes are designed to strengthen the law and make it more efficient and effective. Some of the changes will help to modernise further the agencies that operate under the aegis of my Department.
While the Bill draws on the Civil Law (Miscellaneous Provisions) Bill 2010 which had commenced second stage examination prior to the dissolution of the Dáil. I have significantly amended aspects of the Bill and I have added new provisions such as amalgamation of the coroner districts of Dublin, amendments to immigration and citizenship law and amendment of the Land and Conveyancing Law Reform Act 2009 and Registration of Title Act 1964 in relation to certain rights of way without the need for court order.
I propose to highlight the most important changes in the Bill rather than run through all 15 Parts of the Bill. And should Deputies raise matters that I have not focussed on I will be glad to pick up on them by way of response at the conclusion of our debate.
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 provision will enable full effect to be given to 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.
The legal aid system operated by the Legal Aid Board is, essentially, intended to provide legal assistance in the civil law area. The Bill extends this into providing legal advice to those who are the victims of human trafficking so they are made fully aware of the law applicable, of the assistance they can give to An Garda Síochána, of what will occur should a prosecution take place and of the court processes.
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.
A small number of amendments were made to the Bill at Committee Stage in the Seanad. These were mainly of a technical nature regarding definitions in the Act of 2004. Amendments were also made to Section 37 of the Act of 2004 which relates to the prohibition of an unlicensed security service. The effect of the amendment is to allow the Private Security Authority more flexibility in regard to its current licensing practices. A further amendment was made to section 48 of the Act of 2004 to allow for the possibility of costs and expenses to be awarded to the Private Security Authority in cases prosecuted by the Authority. There is currently no express jurisdiction to award costs and the amendment rectifies this situation.
Part 5 introduces a new provision in our licensing laws. Section 16 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.
In the Seanad, I expressed regret that the vintner’s bodies had withdrawn their support recently from an existing MEAS code which is designed to ensure that alcohol is promoted and sold in a socially responsible manner. I expect both organisations to participate in the preparation of future codes in this sector and to support their implementation.
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. Moreover, 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.
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.
A small number of drafting and technical amendments were made to Part 6 of the Bill during the Seanad Stages to improve the text of Bill. It may be necessary to make further technical amendments in this House.
The most critical change proposed in Part 7 of the Bill is the replacement of section 85 of the Bankruptcy Act of 1988. The period for application to the court for discharge of bankrupt persons is reduced from 12 years to 5 years. I should add that 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 and to former employees). 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. But the amendment will give some a chance to recover and to begin anew.
Another change to section 85 is that it will provide, 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.
While I understand that there may be justifiable demands to go further in our reform at this point, I cannot accede to them in the context of this Bill. It would be premature to do so. We must be mindful of the need to ensure that the economic and financial effects of certain of the new arrangements that are in contemplation are carefully assessed to ensure that all relevant issues are addressed and their impact is fully anticipated and understood.
Deputies will be aware that, 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 and my Department is working to meet that deadline or to be in advance of it if possible.
A key objective of that 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.
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 amendment makes clear that since a civil contempt would be involved the parties could avail of civil legal aid subject to them being otherwise eligible under the scheme of legal aid.
The object is to strengthen the law on enforcement of orders of the court to pay maintenance and to address 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 that judgment, the Enforcement of Court Orders (Amendment) Act 2009 inserted a series of amendments designed to protect debtors and impose obligations on the creditor. Following a review of the operation of that Act the provisions now in the Bill are specific only to the better enforcement of maintenance orders as distinct from debt generally.
I 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 of 1940 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.
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 of the Bill as published 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 dealing with the requirement to produce documents of identity was inconsistent with the Constitution. The Part also provides for a flexible system of fees for certain immigration services.
However, I should mention that, it is my intention at Committee Stage to bring forward amendments that will reflect the discussions in the Seanad and permit the further development of immigration and citizenship law. I am pleased to indicate that I will be fulfilling a commitment given in the Seanad to bring forward a change in the immigration law in respect of civil partners. This issue arises following enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2010. The effect of the amendment will be to place civil partners on a similar footing to married persons in the granting of a certificate of naturalisation.
I will also be proposing an amendment in relation to giving statutory backdrop to citizenship ceremonies. These would be dedicated occasions to provide a dignified and fitting ceremony to mark the granting of Irish citizenship to those persons who have been granted that privilege. I arranged recently for a pilot citizenship ceremony which went very well. Arrangements are being made in my Department for a series of ceremonies to take place during the last week in July.
My proposals will, for the most part, replace existing legislation which provides, in relation to a person granted citizenship in this State, that once the Minister makes a decision, the person registers with the District Court clerk and is given a date upon which to return to swear his or her fidelity to the State. However, in this regard, people are often left sitting at the back of the court and are slotted in between a couple of criminal trials.
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 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. In the published Bill I had intended to reduce the existing retirement age of 70 years to 65 years. However, having regard to the debate on the issue in the Seanad I was happy to move an amendment to the Bill at Report Stage so that it will remain at 70. The period of appointment will not exceed 5 years.
These modernisation measures for Taxing-Masters 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 the legal professions and of legal costs. The time-line for publication of those proposals is Quarter 3 of this year.
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 section 46 in Part 15 of the Bill will allow the publication in one official language only 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.
We had some heated discussion on this matter in the Seanad. But I would like to reiterate that this amendment is technical in nature and would simply allow publication in electronic form of legislation as soon as it has been signed by the President in order that there is instant accessibility to what the legislation contains. Deputies can be assured that does not in any way prevent publication in both languages. Formal publication will thereafter have to take place in both languages.
I should mention that the previous Government had made a decision that it was necessary to introduce this provision in the law and it was being prepared to be included in the somewhat smaller Civil Law (Miscellaneous Provisions) Bill that my predecessor published in 2010. The proposal has also benefited from the advice of the Attorney General and the previous Attorney General, neither of whom believed there was a constitutional difficulty of any nature.
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 some further measures is being contemplated. These will be small in number 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, procedures with regard the disposal of documentation following a tribunal, certain improvements and efficiencies in courts procedures, improvements to the provisions governing the Appeals Board of the Private Security Authority, immigration and other amendments to equality legislation and, a number of other minor amendments.
I commend the Bill to the House.