Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage
I welcome the opportunity to speak on this legislation which is certainly a miscellaneous provisions Bill. There is variety in it if nothing else. I do not mean to minimise it. We do not have concerns about many elements of the Bill and it is understandable that they should be addressed. However, I have some concerns in line with some of the issues raised by previous speakers. I will return to those in a few minutes.
The phrase "justice delayed is justice denied" may be overused but it is vital that we have a justice system capable of maintaining the highest possible standards while functioning in a timely manner. In normal times, this has been a difficult balance to achieve and obviously in the midst of the Covid-19 crisis that challenge is magnified. Many aspects of the Bill are entirely practical administrative measures providing, for example, the option for electronic filing of documents and the provision of statements of truth as an alternative to swearing affidavits. They are necessary, for the time being, but also serve to modernise are courts system and should be par for the course going forward. Many of the workings of our courts system are out of date and border on the archaic. Efforts in this vein to leverage modern technology and streamline the administration of justice are welcome.
In the interests of clarity, it is important that we progress this through the use of primary legislation and endeavour to ensure that processes keep step with the normal tools of administration we are all used to in all spheres of life.
With regard to the amendment to the Coroners Act, the Bill introduces entirely practical provisions to act as a fail-safe when the coroner's office find itself needing to react to unforeseen events such as the pandemic or another disaster. It is welcome that the fail-safe can be triggered to address the backlog in inquests which has developed. A backlog of inquests has been an issue for some time in Dublin, at least. The Minister might let us know if the same issues exist outside the capital as a result of the pandemic. It may be necessary to authorise a deputy coroner of a district to act in concert with a coroner on a longer-term basis than is provided for in this legislation. Has the Minister had an opportunity to examine the impact of the Coroners (Amendment) Act 2019 on Dublin? Why was six months chosen rather than the two-year period which applies in the Dublin district?
The change to civil proceedings seems to be one of the largest practical changes the Bill attempts to address. However, it is the area most open to abuse and manipulation given the lower standard of proof that applies to such proceedings. I share the concerns Deputy Kenny mentioned earlier. Section 14 in Chapter 3 introduces a very important amendment to the law of evidence, effectively allowing business records, which are currently regarded as hearsay, to be introduced in evidence. This change seems to be in response to a court case which made a ruling earlier this year. As I understand it, a vulture fund employs an agent. The agent is not the primary lender and that is why it was ruled inadmissible, because they do not have all the information. I believe this could be dealt with later in the year.
Organisations involved in the insolvency sector, the banks and Revenue have all agreed a set of recommendations. They have been in a queue for a couple of years and they do not find a way into this legislation. At the same time three or four months after the ruling on Promontoria in the courts, we are seeing a change that could have profound consequences for people who are very often not able to stand up for themselves. The proposed amendment should be seriously considered. The Minister may well withdraw that section. I believe that merits considerably more scrutiny than we can give it at the moment. Why was this brought forward? It does not seem to be Covid-related. We all accept legislation that is necessary, urgent and limited to Covid is required in different sectors, but this one does not sit well in the Bill. If it remains in the Bill, it would be enough to make us vote against the legislation even though we accept it also contains many changes we welcome.
Given the impact legislation on criminal proceedings can have on people's lives, we need to be careful with how we proceed in this area. Certain sections of the Bill will have a practical impact on this area. For example, section 27 deals with the administration of committal warrants. The current requirement that prisoners must be transferred between prisons to have a warrant executed is clearly an administrative burden that has no benefit for a prisoner's civil rights.
I have some concerns regarding video links under section 23. This section provides for video links to be permissible in certain court proceedings, such as applications for bail and free legal aid. These are very serious proceedings that have the potential to seriously impact the lives of those making the application. As such there is an onus on us to ensure these forms of procedures do not have a negative impact on fair process for those appearing before them.
We have all become used to platforms such as Skype and Zoom. There is a range of them, and I cannot think of their names now. People sometimes misses out on part of what happens owing to broadband quality loss. That can have an impact on the kind of meeting that takes place. There is nothing like a face-to-face meeting. I understand that we are in a different environment now but we need to give careful consideration to temporary measures as opposed to permanent measures.
I am quite comfortable with most of the Bill, I have grave concerns over one section and the vulture funds. I do not know why it got the prominence it got. It would be prudent to defer it until later in the year.