Alan Shatter (Dublin South, Fine Gael)

I welcome the fact that this Bill is before the House and that we are discussing it. As the Minister correctly stated, the Bill addresses a broad range of different issues, some of which have been waiting in the wings for some time to be addressed. The Bill is a disappointment, however, because there is a broad range of other issues with regard to civil law that have been ignored for too long and which this Bill provides a useful vehicle to use to have those issues addressed. I welcome the Minister's statement in his concluding comments that he may bring further matters of relevance before the House that could be included in the Bill and I would hope, in that context and in that state of mind, the Minister will also support proposals from this side of the House to address issues that have been ignored for too long and that this Bill could properly address also.

I want to first deal with some of the issues that arise specifically under the Bill and one or two difficulties, and then make reference to some of the areas that could be addressed that the Bill currently ignores. Fine Gael will also bring forward amendments to the provisions in the Bill.

I will begin by welcoming the provisions in the Bill to provide legal aid and legal assistance to the victims of human trafficking. That is a welcome provision and the sooner it is put in place, the better. The Minister made reference to the issue of good samaritans, which is an issue that has been addressed in the past by colleagues of mine, and the Minister made reference to that, and an issue for which we require new legal provision. The provisions contained in the Bill provide a good basis for starting to address the issue but some changes are required in the Bill to ensure it is adequately addressed.

In that context I draw the Minister's attention to a submission on the Bill, which I presume he has received, from the Irish Heart Foundation detailing a series of amendments it believes would improve the Bill and would ensure that those who provide good samaritan assistance to people in substantial difficulty have available to them the protections to which they are entitled.

In that context I draw the Minister's attention to one particular aspect of the provision contained in the Bill. The current definition of "volunteer" in the Bill states: "'volunteer' means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses actually incurred) or other reward;". The Irish Heart Foundation would like clarification on what "authorised by a volunteer organisation" means and what that would mean for the liability of individuals who are trained as first responders by the Irish Heart Foundation or by trainers who receive their training from the Irish Heart Foundation.

This is an issue that goes even beyond that to which the Irish Heart Foundation is referring. There will be people who come to the assistance of others who are trained and have an expertise in a particular area, but are we talking about expertise acquired within the State or outside it? There are many such issues. The Irish Heart Foundation has proposed an amended definition for the concept of volunteer: "a 'volunteer' is an individual who, without any expectation of payment or other financial reward, agrees to provide assistance, advice or care ... and includes an individual who does so under the auspices of a volunteer undertaking". It is important that anyone who acts in good faith in an emergency has proper protection from civil liability.

The definition of "emergency" in the Bill also gives rise to some difficulty. Emergencies are said to include "circumstances arising in connection with an actual or apprehended accident". I agree with an amendment suggested by the Irish Heart Foundation, namely, to include in the definition "other circumstance of serious and imminent danger". There are circumstances in which there may be serious and imminent danger but which do not necessarily arise from an accident. There are some issues that could be addressed constructively on Committee Stage to improve the provisions of the Bill in this area.

The Bill touches on the area of bankruptcy. From what the Minister had to say, I understand that in addressing the issue of bankruptcy he is awaiting the final report of the Law Reform Commission. My Fine Gael colleague, Deputy Deirdre Clune, will be addressing the issue of bankruptcy in some detail. This Bill is a lost opportunity. In the context of the current catastrophic economic climate, there are many decent, ordinary people who are self-employed or involved in small businesses and are finding themselves, through no fault of their own, in major financial difficulties. Their businesses have collapsed or contracted, or, as a consequence of the economic collapse, they have been left in substantial debt because those to whom they provided services or products simply have not paid them or have gone into liquidation.

We need a fundamental and radical overhaul of our bankruptcy legislation. We have the working paper from the Law Reform Commission, and I know there is a promise of final recommendations. I am conscious, however, that such reports often gather dust on shelves for years. In the current economic climate, there is a need to do a good deal more with regard to reforming our bankruptcy laws. There are a number of particular issues, but we have to ensure, for example, that those people - particularly bankers - who have not only brought down the economy but, because of their greed, borrowed insane sums of money on the security of properties whose values could never be maintained, are not allowed to return to their old ways. We must ensure that people who have behaved with gross incompetence are not allowed with ease to involve themselves independently in business matters. Everything possible must be done to ensure that debts incurred are discharged. The same applies to the greed of some developers and construction companies, but not to all. There are some small construction companies in this country that did their work with great responsibility and would not feature among the legions of the rich and avaricious who thought they could simply make a bet on bits of land in Dublin and elsewhere and that, within a period of months, their money would be doubled or tripled because of their simple engagement with it.

We must ensure that those who have behaved irresponsibly and caused the State damage, who are in enormous debt and who have, through their irresponsibility, brought down other people in the business community who were behaving responsibly and running decent businesses, are not allowed to return with ease to the economy as independent operators. However, there are thousands of people who are now confronted with the possibility of bankruptcy and, even if their companies are small, have gone guarantor for debts they will never meet. They now have no choice but to be rendered bankrupt, if not by way of a voluntary bankruptcy then by those to whom they owe money. There are people who need to be given an opportunity to rebuild their lives. Our bankruptcy laws are harsher than those of most countries in Europe and certainly than those in the UK and the USA. We need to give people who, through no fault of their own, ran businesses that collapsed because of the catastrophic economic difficulties for which this Government is substantially responsible the opportunity to rebuild their lives, return to the marketplace, and create jobs for themselves and others. Many have the talent to do it. Many successful companies, including global companies, are run by people who suffered bankruptcy in their early business years but have been able to rebuild their lives.

What the Minister is doing in this Bill is not adequate. This is an emergency issue in the context of the economic climate in which we are living. It is not an issue in respect of which we have the luxury of allowing the Law Reform Commission to publish a report, followed by two or three years of debate and consideration and then perhaps some reforming legislation. I ask the Minister to give this issue further consideration before Committee Stage. As I said, my colleague Deputy Clune will address this further.

The way the Minister has dealt with the issue of maintenance enforcement can be best described as gross negligence. The Minister is familiar with and made reference to the court judgment which created major difficulties with the Enforcement of Court Orders Act 1940. He sought to address those difficulties in a Bill that went through the House in 2009, but it failed utterly to address the difficulties in the area of family law. At District Court level, many orders are made for the support of spouses or children, some for children born outside marriage. Where a person fails to comply with such an order and is in employment, the facility of an attachment of earnings order is available. However, if he or she is self-employed, or is not in employment but has an income, perhaps from rental property, an attachment of earnings order does not work. I have come across such cases frequently. Support payment orders are made, for example, for children, and some people have failed to make those payments. For what is now the best part of 16 or 17 months, there has been no legal mechanism for enforcing those orders.

Orders made by the District Court in this regard have proved to be of no weight whatsoever, and no legal redress is available in circumstances in which those against whom the orders are made decide to renege on their legal obligations. There are dependent wives and mothers of children across the length and breadth of the country who cannot understand how the legal system has left them in those circumstances. This issue should have been addressed by way of an emergency measure through this House and passed within 24 hours. I am concerned that by the time we work our way through Committee Stage and Report Stage of the Bill and deal with all the other issues that may need to be addressed, these orders will not be enforceable until well into the new year. I ask the Minister to remove the maintenance enforcement provision from this Bill and introduce a separate Bill on that issue next week. My party will support its emergency passage within 24 hours of its publication, provided it addresses the issue correctly. This is an urgent emergency issue for families and needs to be given that level of attention.

Primarily in the case of estranged spouses, we are allowing recalcitrant husbands and unmarried fathers, who have abandoned their children, a free pass to avoid meeting court obligations and making maintenance payments. That is undermining public confidence in the administration of justice and showing contempt for the operation of our courts system with regard to maintenance payments in the family law area. It has thrown spouses and unmarried mothers onto social welfare dependence and resulted in taxpayers' money having to be spent in circumstances in which they do not wish to be so dependent, and we have allowed husbands and fathers off scot free. It is simply not good enough.

The amendment in the Bill is also not good enough for a particular technical reason I wish to draw to the House's attention. Under the law as exists if there is a failure to make maintenance support payments, the total facility within the District Court is to recoup six months' arrears of payments. Where there are 14, 15, 16 or 17 months' arrears if we introduce a new legislative provision now, a free pass may be given to those who have not made payments since June 2009, a free pass for a large portion of that period of time. That issue needs to be better addressed and dealt with and should have been addressed with far greater speed.

Under the section amending the Domestic Violence Act 1996, the Minister correctly stated that the Bill provides that a person may apply for a safety order against a person with whom he or she had a child in common, including where the couple concerned do not live together or never lived together. I understand the Minister's objective is that in circumstances where a child has been born outside marriage and there are arrangements for a spouse - more often the father than the mother - to have access to the child, if incidents of violence or threatened violence occur on the part of the father directed towards the mother, she should be able to secure a safety order which means that if the father either when exercising access or on any other occasion threatens the mother, he is subject to arrest and can be prosecuted under the Domestic Violence Act.

While I fully support that provision, which is a long overdue amendment to the Domestic Violence Act, why is the amendment so minimalistic? If a mother is bringing up a child, regardless of whether she cohabited with the father, and if the father poses a threat to her, why should she only be entitled to obtain a safety order, which is merely designed to stop someone from threatening someone else? If they are not living together, should she not be entitled to get a barring order? If she is living in her own rental property, owns her property or is living with her parents and the father of her child is a violent individual, who has previously assaulted her or threatened her with assault, or if the father is an alcoholic or drug addict and his conduct while under the influence poses a threat, why should she only be entitled to a safety order? Why would we not extend the option of a barring order in those circumstances?

Let us take it a step further. We know there are small numbers of people in this State as in every other country who make people's lives misery by stalking them. We know on occasions when people enter into brief relationships one party may discover the person with whom he or she enters the relationship has a personality problem of some description, may then break off that relationship and become a victim of stalking. Why should a person being stalked not be entitled to seek a safety order of a barring order to stop that individual from coming near him or her? Why should we not allow In those circumstances, when such a safety or barring order has been obtained, allow the Garda Síochána to use the power of arrest to prevent an individual continuing such conduct?

I do not understand why barring orders, which have proved very useful and helpful in the family law area, cannot be extended in this way. There is no constitutional difficulty with it, indeed there is a constitutional obligation on the State with regard to the individual's right of bodily integrity. There is no party political problem and this is an issue of common sense. I suggest that in the future deliberation in which the Minister will engage with regard to the provisions contained in the Bill, he give further consideration to the extension of barring orders to these sorts of circumstances.

I am conscious that we only very recently dealt with the Civil Partnership Act and it has not yet come into force. When will the Minister make the various ministerial orders to make it operative? I have concerns that the provisions in that Act relating to the extension of the domestic violence legislation in certain circumstances are also inadequate. The Women's Aid group has made suggestions for further amendments to ensure that vulnerable individuals are protected in circumstances where they are the victims of violence, threatened with violence or their safety is otherwise threatened. I believe this legislation is an appropriate vehicle to address that issue and on Committee Stage the Fine Gael Party will table amendments in this regard.

I want to touch on some other areas this Bill does not address. I have already mentioned the issue of stalking that could be better addressed in civil law than it is at present. I also want to deal with another area that has been talked about for some time, an area addressed by the Westminster Parliament in the Damages Act 1996, which is the area of civil law relating to the awarding of damages in civil cases, particularly in circumstances where people have suffered catastrophic injury as a consequence of medical or other forms of negligence. This particularly relates to people who are put in a position where they will need care for the rest of their lives and may suffer profound intellectual and-or physical disability.

At present our courts when dealing with civil cases in that area can only award capital payments by way of damages. We have no legal structure to provide a different approach. Since 1996 it has been part of English law as it is part of the law in a number of other common law jurisdictions that provision can be made for what are known as structured settlements. Essentially, provision can also be made by the court. If there is not a structured settlement, the court, itself, instead of ordering a lump-sum capital payment can make orders for periodical payments, which are designed to ensure that as someone who suffered very serious injury is getting older and going through life the payments made are adequate to meet their needs and on occasions if there is some fundamental change of circumstances arising from the original injury, those payments can be revisited and if necessary changed or increased.

Under the terms of the English legislation in this area, there is specific provision for the making of periodical payments, which means the courts do not always have to try to definitively guess. For example, where a child has been born with catastrophic difficulties as a consequence of medical negligence in circumstances relating to the child's birth or where a young child suffers catastrophic injury, for example, in a car crash, the courts are frequently placed in a position where they have to estimate how long the person may live, how their injuries will affect them, not just through childhood but through adulthood; what their needs will be, what particular accommodation will they require and what nursing assistance will they need. The courts have to make decisions about a broad range of issues and guess decades into the future.

There is a real public need and interest in providing a broader discretionary approach for the courts. Provision should be made for periodical payments. In the vast majority of instances, these matters result in payments by insurance companies and we should make provision for structured settlements.

I refer to the definition of a "structured settlement" in the UK Damages Act 1996 because this definition is used in Northern Ireland and in the United Kingdom where there is similar legal provision. Section 5(1) states:

"...a structured settlement" means an agreement settling a claim or action for damages for personal injury on terms whereby—

(a) the damages are to consist wholly or partly of periodical payments; and

(b) the person to whom the payments are to be made is to receive them as the annuitant under one or more annuities purchased for him by the person against whom the claim or action is brought or, if he is insured against the claim, by his insurer.

The UK Act could be readily adapted to make provision for structured settlements in our law. The Judiciary has called for it. A recent case was settled in the High Court on the basis of a structured settlement being agreed and the matter being left for mention in court based on a hope or a belief that this Parliament would enact legislation to provide the legal foundation for the structured settlement. There is no sign of such legislation. This Civil Law (Miscellaneous Provisions) Bill provides a very useful legal vehicle to allow for that.

In the context of civil litigation generally, it is my personal belief - and this belief is developing across the community - that a great deal could be saved by way of litigation and legal costs, a great deal of court time could be saved and a great deal of the State's money could be saved in circumstances in which an in-court civil mediation service would be available to resolve civil liability disputes at an earlier stage. I believe the State should do this and this fundamental change should be put in place by the Courts Service. In-court mediation services should be available at all court levels because it would save the State substantial money in legal costs, the costs of the Judiciary and the costs of the administration of justice. This needs to be done and I ask the Minister to address this issue. With regard to structured settlements, I remind the Minister that the State Claims Agency, which operates under the aegis of the National Treasury Management Agency, has called for a law to provide for such settlements and that call, for some reason, has been ignored.

Another civil law matter, which is almost a curiosity item, is of some importance. Under the Civil Liability and Courts Act 2004, various bodies can be prescribed as bodies in respect of whom judgments or court documents in in camera proceedings can be made available. We have an anomaly here. The Minister has made an order with regard to this Act designating various bodies as entitled to have access to documentation but curiously, if proceedings are brought in the European Court of Human Rights, the court in Strasbourg has not been designated a prescribed body under section 40(7)(b) of the Act. That could create a difficulty in that court properly dealing with claims under the European Convention on Human Rights arising out of family law proceedings. That matter should be urgently dealt with.

The final issue the Minister might want to give consideration to is one of the peculiar anomalies in our law. When it comes to judicial appointments, one has to be a barrister or solicitor of ten or 12 years' standing to be appointed to the High Court. If one occupies various other judicial positions, one can be promoted from them to the High Court or the Supreme Court. However, one of the curiosities is if someone is appointed to be Master of the High Court, whether he or she is a barrister or solicitor - usually he or she is a barrister - their term serving as Master of the High Court, even of they had been a member of the Bar Library for 20 or 30 years, does not regard them as continuing either to be practising as a barrister nor does that judicial position allow them ever to be promoted from Master of the High Court to a judicial position in any other court.

This is an odd anomaly in the law. I am not making a plea on behalf of any particular Master of the High Court - there is only one at the moment and I am not trying to special plea on his behalf. However, if that position is respected as a judicial position, it is quite odd that someone who has been an eminent member of the legal profession, sufficiently eminent to be appointed to that position, should, as a consequence of such appointment, be disqualified from any other judicial appointment in the State. That is something the Minister might look at.

See this speech in context