Dáil debates

Thursday, 30 July 2020

Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage


5:30 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour) | Oireachtas source

I agree with Deputy Martin Kenny that the normal way of dealing with justice legislation is to have a protracted discussion, pre-legislative scrutiny and then a detailed Committee Stage debate. We should not vary from that, except to deal with issues that are absolutely imperative, a point I raised during the briefings.

There are number of component parts of this omnibus Bill. I wish to address the part dealing with the existing coroners' law. Legislation on coroners was updated last year on foot of initiatives from the Opposition side of the House. The former Deputy, Clare Daly, MEP, put forward suggestions. The current legislation is somewhat of a patchwork and needs consolidation in order that we can read it as a whole.

The Bill seeks to deal with a few issues that are, or have the potential to be, urgent in the case of a pandemic. Given that Covid-19 is upon us, what is the capacity issue? Under current law, there one coroner is allowed per district except for Dublin. To have in law that a coroner or his or her deputy is unable to deal with another district seems odd. A coroner and deputy coroner cannot act concurrently, regardless of the pressure of work, which again seems an odd state of affairs. There is an exception in the existing legislation for Dublin in that regard, but even that exemption is a special temporary provision.

All of these things should be generally allowed for in overarching and permanent legislation. These are largely administrative issues and legislators should provide flexibility so that people can react to the needs of a given situation. These are important matters. Coroner's courts and inquests are important for the families concerned. We have all dealt with families who can be consumed by this process. There is currently a two-year waiting list for some coroner's inquests in Dublin.

That was before Covid-19 and it is wholly unacceptable. We need to provide an administrative infrastructure for that to be rectified.

The Bill proposes to give statutory authority to the Minister to approve temporary extra coroner capacity in exceptional circumstances. Why would that be the case? Why can she not provide the required number of coroners and have flexibility to move coroners as needs demand? I do not know why it is either time-limited or restricted in that manner. Why limit to six months the period in which a coroner and deputy coroner can act concurrently, as the Minister proposes in this legislation? Why not allow that wherever the pressure of work and requirements allow? As I said, these are important matters of a most sensitive nature.

I must gallop through the Bill as I only have ten minutes. For the further advance of civil proceedings, it is important to allow more work to be done remotely. I listened carefully to the comments of my Sinn Féin colleague. The notion of putting individuals in cages in a prison van, as he described, and transferring them for hours across the country to stand for perhaps 30 seconds in a court is ludicrous. It is my understanding from the briefing that this will only apply to limited sets of hearings and certainly could not apply to any hearing or proper trial where, of course, the defendant and legal team would have to be present. I ask the Minister to clarify that.

We have all been challenged in trying to amend our work patterns and work remotely. All of society is doing the same and it would be useful for our courts system to catch up with that. The remote hearing of civil proceedings has been allowed for under section 26 of the 2008 Act. Under this proposal, that section will be removed. The Bill provides that courts can make directions to conduct a hearing remotely. I understand that because we do not want circumstances arising where cases could be put off indefinitely if people could object. It should be within the remit of a judge with a seizure of all the information to make that determination and make an order if the administration of justice, in his or her opinion, so requires.

The Bill also provides clarity and simplification in the submission of documents of evidence. That is useful. Many solicitors have been in touch with me during this Covid crisis who are concerned about electronic filing of documents and about statements of truth, which are not provided for here, to substitute for sworn affidavits and statutory declarations. I hear the strong point made by Deputy Kenny on the business section of the Bill which, in truth, does not sit comfortably in the body of the legislation which deals, almost exclusively, with efficiencies in working remotely to overcome the challenges placed on the courts system now in both civil and criminal matters with regard to Covid-19.

The briefing document provided to us by the Minister states that these proposals follow the recommendations and the draft Bill produced by the Law Reform Commission in its 2016 report entitled, Consolidation and Reform of Aspects of the Law of Evidence. They are based on similar versions of the Criminal Evidence Act 1992 regarding criminal proceedings. The sections in this chapter provide that in civil proceedings any record in the form of a document compiled in the course of business shall be presumed to be admissible as evidence of the truth - that is an important phrase - of the fact or facts asserted in the document. I would be much more comfortable if that provision were taken out and we were given time to consider it. I am a great supporter of the Law Reform Commission. It has done incredibly good and important work and I am, by and large, minded to support its recommendations. However, we need to have time and space, which we do not have in a debate confined to three hours, to make sure we are doing right here and there are no countervailing facts. I support the suggestion made by the Sinn Féin Deputies that the proposal in these sections be put in abeyance until we have a different vehicle in the autumn session to give the matter proper scrutiny. We should bring in expert witnesses and hear expert testimony before we deal with that.

I will try to deal in two and a half minutes with the criminal aspects of the legislation. The Bill proposes to facilitate the prosecution of criminal cases in a Covid-19 world through video links, as I have already said. I ask the Minister to give clarity on that to assuage the concerns already expressed by one Deputy. We are talking about the non-trial elements, that is, returns to trial, arraignments and similar matters. There should be no circumstances where a proper trial or hearing would take place without the accused and his or her full legal team being physically present and able to see and cross-examine all witnesses in a normal way. That could not be done by video link.

I referred to other practical measures that lessen the need to transport prisoners across the country. Remote hearings of State bodies is a useful addition in this legislation, although again it is not something one might consider germane to a justice Bill. It is important to put beyond doubt the validity of decisions made by State bodies that now are increasingly meeting in a remote or online fashion and I support that.

There are important elements of reform on both the criminal and civil sides of the proposals that everybody in this House will have no difficulty in supporting. We need clarity and confirmation on the briefing we got from the Minister's officials on the scope of the legislation. I differ with Deputy Kenny on some parts of it, which I do not think should be timelined. In terms of the coroner provision, it is wholly unacceptable there would be a two-year wait for a coroner's inquest in Dublin. We should make permanent the capacity adjustments the Minister is proposing in that part of the Bill. I hope that part of the Bill is not timelined.

Sinn Féin has tabled an amendment simply to oppose all sections of the Bill. It is the prudent course for the Minister, and I advise accordingly, that the business sections not be pressed this evening. They can either inserted in stand-alone legislation in the autumn session or accommodated in other legislation when we have the appropriate time and space to give them the scrutiny they deserve. The Minister would then have consensus and support for this legislation across all sections of the House.


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