Pat Rabbitte (Dublin South West, Labour)

I welcome a number of aspects of the Bill but I am bound to say that I have reservations about the new fashion in the Department of Justice and Law Reform for omnibus Bills that include the kitchen sink. It is difficult to see any rationale for throwing together legislative amendments on bankruptcy, domestic violence and private security services. I welcome the provisions for enforcement of maintenance orders but, again, it is difficult to detect any affinity between amending the law on good samaritans and human trafficking. This "round the house and mind the dresser" approach to legislating must be driving practitioners crazy. Just as it is often puzzling as to how and why certain issues are thrown in under "miscellaneous", it is also a mystery as to why even more pressing matters are excluded or passed over.

I do not suppose anybody opposes legislative protection being provided for good samaritans. The term "Good Samaritan" is defined in the Bill as "any person who intervenes to provide assistance advice or care to another person in an emergency."

Our law on bankruptcy is out of date and unsuitable to modern conditions. "Bankruptcy" is a dirty word in Irish society, which is understandable at a time some prominent figures, who have done society serious harm, are using bankruptcy to evade their responsibilities or limit their liabilities. However, the vagaries of business in present economic circumstances have often forced people into bankruptcy and there is little they can do to avoid it. To wait 12 years in Ireland to be discharged from bankruptcy as compared to 12 months in the neighbouring jurisdiction seems difficult to justify. To wait 12 years in Ireland to be discharged from bankruptcy, compared with 12 months in the neighbouring jurisdiction, seems difficult to justify.

At the moment victims of human trafficking do not have legal standing in Ireland. During enactment of the 2008 Criminal Law (Human Trafficking) Act, I argued for the inclusion of a period of recovery and reflection but that section, I am advised, appears to be invoked only for the purposes of assisting gardaí in an investigation or prosecution of cases arising in connection with human trafficking. This legislation will permit the Legal Aid Board to give legal advice to victims or alleged victims of human trafficking. It seems that in this regard, legal advice does not include legal representation.

Amending the Private Securities Act of 2004 in this Bill seems especially odd. That Act established the Private Security Authority, one the principal functions of which is the controlling and supervising of persons providing security services and maintaining and improving standards in the provision of those services. The Minister will be aware that I am one of a number of Deputies who have been attempting to persuade him to make plain in any revision of the legislation that a person convicted of a criminal offence or a person who has made a settlement with the Criminal Assets Bureau is automatically disqualified from holding a security licence. I will return to this presently.

I look forward to hearing from the Minister the importance inherent in what seems a very modest measure to enable him to promulgate a code of practice on licensing matters. Does the definition apply to off-licences? It is plain off-licences are included as well.

The amendment to the Domestic Violence Act 1996 seems no wider than the taking into account of legislation since enacted and in particular the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The qualifying period for cohabitation will now be six months in aggregate during the nine months immediately preceding application to the court.

Members of the House will have encountered a growing problem concerning the non-payment of maintenance sums by errant spouses despite the court having made a maintenance order. I have made representations to the Minister on this issue and I welcome the measure he is bringing forward here. We cannot continue to imprison people for routine offences but neither can a blind eye be turned to defaulters in such a serious matter, especially when children are dependent on the contents of the maintenance order being enforced. The importance of this Bill seems to be the distinction drawn between those who cannot pay maintenance and those who calculate they can get away without paying.

The Bill also contains a number of technical amendments to our equality legislation designed to align our domestic law more closely with EU equality directives.

I must confess that I was unaware until relatively recently that there is no legal protection for good Samaritans who go to the aid of others. This Bill now proposes a legislative shield for such actions provided such acts are not grossly negligent. Volunteers are included in the same manner, although the Law Reform Commission draws a qualitative difference between good Samaritans who stumble across a person seemingly in need of assistance and volunteers who are members of voluntary rescue organisations such as the RNLI and mountain rescue teams. The good Samaritan may have no training and may be ill-equipped. On the other hand, members of a rescue organisation are persons who are both trained and equipped and have a reasonable expectation that they will be placed in a situation where rescue skills are required of them. To my knowledge nobody has ever been sued on common law principles of negligence and I do not know that there is any high probability of this changing.

Nonetheless, the Attorney General requested the Law Reform Commission to make recommendations for reform of the law on good Samaritans. In fact the Attorney General's reference was prompted by a Private Members' Bill, introduced by Deputy Timmins, although his reference was considerably broader than the scope of Fine Gael's 2005 Bill and addressed issues of volunteer rescuers, such as mountain rescue teams, and whether there should be a duty to rescue imposed on citizens generally or on medical practitioners, nurses, police and so on.

In paragraph 3.101 of its 350 page report, the LRC admitted:

A memorandum prepared in 2003 by experienced counsel for the Pre-Hospital Emergency Care Council (PHECC), the State body with responsibility for standards in pre-hospital emergency medical services, expressed the view that it was unlikely that liability would be imposed in practice. Indeed, the Commission is not aware of any litigation taken against a Good Samaritan or volunteer in this State, and it concurs with the general view expressed in that memorandum, in particular having regard to the social utility of the conduct involved, which would form an important element of the application of the "just and reasonable" element of the negligence principles currently applicable in Ireland.

Although included as part of the Attorney General's terms of reference, the LRC did not recommend extending a general duty to intervene on medical personnel, off-duty specialists or any other class of people. I presume that in the case of medical personnel, there is a professional duty to comply with. The omission concluded that the extension of such a duty would be inappropriate. Neither is there a duty to intervene included in the Bill. It is worth noting, however, that the professional standards of regulated professions, where the power of regulation itself derives from statute, may well impose such an obligation. For example, the Medical Council's Guide to Professional Conduct and Ethics states, in section 11:

You should provide care in emergencies unless you are satisfied that alternative arrangements have been made. You should also consider what assistance you can safely give in the event of a major incident, a road traffic accident, fire, drowning or other similar occurrences.

Whatever about the track record, organisations concerned with volunteering are welcoming of the effort to bring legal certainty to the question of civil liability of first responders. For example, there have been references in the debate to the submission made to us by the Irish Heart Foundation. While welcoming the principle of the Bill in this regard, the foundation advocates a number of amendments that I hope we can tease out on Committee Stage.

I return to the sections of the Bill dealing with the private security services. The Minister for Justice and Law Reform, Deputy Ahern, is aware that a number of Deputies have raised with him questions about the sort of person deemed fit and proper to get a security licence and that these questions were prompted by a particular tragedy in my constituency.

This particularly shameful crime is still being investigated by the Garda Síochána. I do not have any knowledge about who may have been responsible. However, I have had it forcibly drawn to my attention that, as the law stands, a person may be awarded a private security licence, even if that person is the subject of an active investigation by, for example, the Criminal Assets Bureau. The question raised with me was how can any person who has agreed a settlement with the CAB be granted a private security licence. Section 22(3)(b)(i) of the Private Security Services Act 2004 states:

That any director, manager, secretary or other similar officer of the body corporate or any person purporting to act in that capacity is not a fit and proper person to hold such a position in a body corporate which is providing a security service.

In the definition contained in section 2(1)(c) of "director" includes "any person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act, unless the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity". To me, that covers a shadow director. For example, a person can own a body corporate, not be a director of it but still call the shots.

The Minister is aware Deputies on this side of the House have raised this matter with him. The introduction of this legislation provides an opportunity for us to address this issue. If the existing law of establishing how a person is deemed fit and proper to be awarded such a licence is defective and holes in it have been exposed, this Bill provides an opportunity to correct it. Will the Minister indicate if he will accept an amendment in that regard on Committee Stage?

The Bill provides measures to make legal advice available to victims of human trafficking. The trafficking of persons for the purposes of sexual or labour exploitation is an enormous global problem. To the surprise of many people, it is a bigger problem in this jurisdiction than we have been led to believe. We discussed this at some length during the passage of the Criminal Law (Human Trafficking) Act 2008 which was to bring us into compliance with our international responsibilities in this regard. In this Bill, the Minister acknowledges victims of human trafficking do not have automatic legal status in Ireland, even when acting as witnesses in a criminal prosecution. Provision will now be made for legal advice to be given to them through the Legal Aid Board's refugee legal service.

Legal advice, however, does not mean legal representation. The Immigrant Council of Ireland stated:

Presently, the Immigrant Council of Ireland is concerned that legal aid for victims of human trafficking will be confined to legal advice only and will not include legal representation on matters related to non-prosecution, compensation for victims and various immigration applications, which all require actions on behalf of a legal representative. At present, the provision of legal representation for victims of trafficking acting as witnesses for the prosecution only arises in situations in which the individual is being questioned in regard to their past sexual history. The Immigrant Council of Ireland is of the opinion that this limitation deems the legal support to victims of trafficking insufficient.

The Free Legal Aid Centre has expressed a similar view. I welcome the Minister's decision that legal advice would be available in the circumstances proscribed. However, notwithstanding that we know this is a wider problem in society than we originally thought, the provision's cover of cases and costs will still be limited. I would have thought an unfortunate human being, usually of a young age, trafficked to this country for purposes of exploitation is in need of whatever assistance she – it is usually a woman – can get.

With the Bill's bankruptcy provisions, the Minister has gone for the most minimalist solution to what is, unfortunately, becoming a larger problem every day. Bankruptcy is seen as a dirty word in society at the moment. This is mainly due to headline stories and the media drawing attention to high-profile figures using bankruptcy to evade their responsibilities. Beneath the media radar, there are a great many people who find themselves in such circumstances. How can we justify a 12-year term before such a person can be discharged? The Bill's digest, helpfully prepared for us by the Library service, refers to three different commentaries on this from Forfás, the Money Advice and Budgeting Service, MABS, and the Irish Property Council.

The remarks of the Property Council of Ireland can be anticipated precisely in the terms as expressed there, and people can attach what weight they will to them. I attach more weight to the Forfás document "Making it Happen - Growing Enterprise for Ireland". That publication draws our attention to the fact that it made recommendations, as did the Law Reform Commission, for a more fundamental and complete reform of the bankruptcy laws.

Forfás obviously feels that the Bill's recommendations do not go far enough. The document states:

The current bankruptcy laws, specifically the Bankruptcy Act of 1988, are more severe than similar laws elsewhere - for example, the UK - and may be contributing to a fear of failure and thus impeding potential entrepreneurs. For example, under existing laws, anyone who becomes bankrupt in Ireland faces a 12-year waiting period to be discharged from bankruptcy, compared with just 12 months in the UK. The current provisions outlined in the Bill, however, would still not bring Irish law into line with other jurisdictions.

Notwithstanding the routine, typical Government statement - and we all have to be respectful on occasions - I am not sure there is any great objective evidence that we are a nation of entrepreneurs. A far more compelling case can be made that we produce good teachers, lawyers and civil servants, but entrepreneurs are scarce enough. If one leaves out the category of person who wants to use the bankruptcy laws to evade his or her liabilities, to impose an obligation on such entrepreneurs as we have, that they may not be discharged as a bankrupt for a period of 12 years, is obviously unconscionable given the current state of the economy. As to why the Minister has selected six years, I presume he will come back to it on Committee Stage if not in his reply to Second Stage.

See this speech in context