Wednesday, 4 October 2006
Civil Law (Miscellaneous Provisions) Bill 2006: Second Stage (Resumed).
Frank Fahey (Minister of State, Department of Justice, Equality and Law Reform; Galway West, Fianna Fail)
Section 50 of the Bill repeals section 20(4) of the Petty Sessions (Ireland) Act 1851, which requires District Judges to keep a note of the evidence. In two cases, Friel v McMenamin ( IRLM 761) and Hegarty v Fitzpatrick ( 2 IR 377), the court refused to permit the applicants to have access to the note of the evidence required under section 20(4) of the Act of 1851. In essence, the present law could be viewed as de facto rendering the note of evidence pursuant to section 20(4) irrelevant. In these circumstances, it is considered appropriate to repeal the section.
Section 51 of the Bill makes provision for video-conferencing in civil proceedings. The January 2005 report of the committee on video-conferencing proposed draft legislation to facilitate video-conferencing facilities in criminal and civil proceedings. Provision for such facilities in criminal proceedings has already been made in the Prisons Bill. This section extends the facility for video-conferencing to civil cases. Subsection (1) provides that a court may direct that a party may participate in any hearing in the proceedings, or a witness may give evidence in the hearing from a location other than the court itself, by means of a live television link. Subsection (2) provides that such video-conferencing shall not be permitted unless the facilities are available to enable the parties or witness to see and hear the proceedings and to be seen and heard by those present in the courtroom. Neither shall it be permitted if it were to be unfair to the parties or otherwise be contrary to the interests of justice to do so. Subsection (3) provides that where a direction is given under subsection (1), the person concerned shall be deemed to be present at the hearing. Subsection (4) ensures that, where a court does not give a direction under subsection (1), it shall give its reasons for not doing so. Subsection (5) applies the section to proceedings that are either brought on or after the commencement date of the section or are pending on the date of such commencement.
Part 5 of the Bill amends the Gaming and Lotteries Act 1956. Section 55 inserts new values of 50 cent as the maximum stake and €30 as the maximum prize for gaming machines. The current maximum stake and prize values are six pence and ten shillings respectively in old money; the euro equivalents are three cent and 63 cent respectively. By any measure, these values are undoubtedly out of date.
Section 56 allows the Minister to vary the amounts in stake and prize money in the future. Since publication of the Bill last April, the Minister has, in conjunction with his Cabinet colleagues, given further thought to the new limits in the Bill as it stands, and proposes to bring forward on Committee Stage an amendment which would set the new limits at higher levels. In particular, a maximum stake limit of €2, the highest coin denomination, will pitch this limit at a realistic level and will enable operators of these machines to offer a wide range of settings to suit different strata of the market.
Part 6 of the Bill deals with business tenancies. Sections 57 and 58 of the Bill amend, respectively, section 17 of the Landlord and Tenant (Amendment) Act 1980 and section 85 of that Act, so as to enable a business tenancy to contract out of Part II of the Act, conferring the right to a new tenancy. This is conditional, however, on the tenant having received independent legal advice in the matter. This facility is already available to some business tenants but only where the premises are let as office accommodation. The proposal to extend it to all classes of business tenancy, including existing tenancies, is a deliberate policy change to meet the dynamic market economy that exists in the State. It is intended to allow greater flexibility than at present in the arrangements which business landlords and tenants choose to make between each other. At the same time, it maintains a good balance between sometimes competing interests by ensuring tenants cannot sign away the protections currently afforded by the law without first having obtained independent legal advice.
Part 7 of the Bill amends the Statutory Declarations Act 1938. Section 59 of the Bill is designed to take account of the fact that, increasingly, foreign nationals who are here to do business or as workers, need to transact legal or other business that may involve the making of statutory declarations. The current requirements of that Act are that the person making the declaration must either be personally known to the witness before whom the declaration is being made or is identified to the witness by someone personally known. This naturally creates difficulties where the person seeking to make the declaration is a foreign national who knows very few people in the State and whose network of acquaintances here may be such that none of them is personally known to a peace commissioner or other person qualified under the Act to be a witness to a declaration. The solution, in section 59 of the Bill, is to amend section 2 of the Statutory Declarations Act to allow for additional means of identification of a person making a statutory declaration. Most foreign nationals lawfully carry a passport or some other form of national identification from their own country. Others may have refugee documentation or other documentation issued by the Irish State. The amendment will allow the declarant to be identified by the production of a passport or other suitable document. Section 61 of the Bill carries this change through in the form of the statutory declaration.
Section 60 of the Bill amends section 6 of the Statutory Declarations Act 1938. This amendment has been introduced in response to a suggestion from the Standards in Public Office Commission that consideration be given to increasing the timescale within which a possible offence under section 6 of that Act could be referred to the Director of Public Prosecutions. The amendment allows summary proceedings to be commenced at any time within 12 months of the date on which the offence was committed or at any time within six months from the date on which evidence, that in the opinion of the person bringing proceedings is sufficient to justify the bringing of proceedings, comes to that person's knowledge.
Part 8 of the Bill amends a number of provisions of the Juries Act 1976. Section 62 deals with the sequestration of juries and amends section 25 of the Act to allow for a jury, unless the trial judge directs otherwise, to separate at any time before they retire to consider their verdict. It also allows the jury to separate at any time after they retire to consider their verdict for such period or periods as the judge might allow. This gives more flexibility than at present possible to make arrangements when, for instance, a jury has not reached its verdict by nightfall and must resume its deliberations on the following day.
Sections 63 to 66 of the Bill amend sections 34 to 37 of the 1976 Act to provide for increases in the maximum fine for failure to comply with the provisions set out in these sections.
Section 67 amends Part 1 of the First Schedule of the Juries Act 1976 which sets out the classes of persons ineligible for jury service. Among such classes currently there is reference to "incapable persons" which encompasses persons who "because of insufficient capacity to read, deafness or other permanent infirmity" are "unfit to serve on a jury". This particular class is to be replaced by a reference to "other persons", namely those who have an incapacity to read or an enduring impairment such that it is not practical for them to perform the duties of a juror. Essentially, it replaces what by today's standards could be reasonably considered to be offensive language with regard to persons with a disability.
Part 9 of the Bill makes two amendments of a technical nature to the Bankruptcy Act 1988. Section 68 amends section 85(3)(a) of the Act of 1988 with the aim of ensuring that only those persons who have a say in what happens in a bankruptcy are those who have formally proved through the Bankruptcy Court. It seeks to avoid a situation where, while the proof of debt process is ongoing, representations might be made to the creditors to accept lesser amounts than they could otherwise prove for.
Section 69 amends section 91 of the Act of 1988 concerning the filing of a statement of affairs by the arranging debtor and is of a procedural nature. It seeks to overcome administrative difficulties in the current arrangement by changing the deadline for the filing of the statement of affairs.