Dáil debates

Thursday, 30 July 2020

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


6:40 pm

Photo of John McGuinnessJohn McGuinness (Carlow-Kilkenny, Fianna Fail) | Oireachtas source

First, I congratulate the Minister on her appointment and wish her well in that Department, where so much reform is necessary. Given her age and energy, I have no doubt that she will be able to bring a new dynamic to the Department and, perhaps, bring about the reform that is urgently required. I ask her to examine the various inquiries that have been established but which still have not been concluded. Indeed, some have not agreed their terms of reference, such as the one relating to Lucia O'Farrell and the death or, more accurately, the murder of her son Shane. I ask the Minister to look at these and perhaps bring forward a report that would enable a further debate to take place in the Dáil on all those issues.

We are in a similar position now to the one we were in last week. We have been presented with legislation that, in the main, is good. The Bill is a reaction to Covid-19 and provides for the necessary changes that are required to make courts more efficient in a pandemic. Perhaps the new changes might continue in place beyond Covid-19. I welcome them. However, in section 3 of the Bill last week providing for the establishment of the new Department for higher education, universities and third level there was a proposal to increase the take-home pay of Ministers of State by €17,500. I voted for that Bill. I voted for it because it dealt with education, had implications for the south east and furthered the interests of the technological universities we so badly need, particularly in the regions. However, I did not want to vote for the salary increase for the Ministers of State who will attend at the Cabinet. Like a three-card trick, that legislative measure went through the House.

If we are serious about legislation, it should be scrutinised and go through the committee and so forth.

This legislation in the main should be passed but, again, we are faced with either a three-card trick, incompetence within the Department and the Government or an attempt to hoodwink the House by slipping in sections 13 and 14. I object to that and, like Deputy Howlin, I ask the Minister to consider removing this part of the Bill and subjecting it to the appropriate scrutiny it demands and requires, keeping in mind that it was never discussed at parliamentary party level. The briefing document which was made available to us has about six lines on this section, with no reference made to the business records in detail. The briefing makes it look as if it is inoffensive legislation that will make no great difference, that it just formalises matters. The danger of passing legislation such as this is that it has consequences. Last week had consequences. It showed the Government as chaotic in its response to the various issues of payments and salaries.

The law of evidence says hearsay is not admissible. The banks got a statutory pass in the Bankers' Books Evidence Act 1879, a privilege because they were reliable bookkeepers. This Bill, however, will allow all businesses to prove their records with hearsay documents. It is a recipe for dishonesty, a new rule on hearsay and a U-turn in the law of evidence. That is my view on this. Looking back at that Act of 1879 and what transpired in 2009, one would hardly trust the banks or the vulture funds. One would not trust them at all if one were to look at recent court cases brought in the main by lay litigants in which the original documents could not be produced and banks were proven to have had documents that were flawed and incomplete and did not reflect the loan arrangements that were entered into in good faith by the people who wanted to extend their businesses, buy businesses, go into different business or take some of the mad decisions that were made in the course of the Celtic tiger. These banks, because they do not have the appropriate documentation, the correct documentation, are using unregulated receivers to trample on the rights of people who are trying to retain perhaps a family home, a family business or a property. This affects farmers, publicans and every other individual who is in business or in trouble. The courts are being arranged to ensure that lay litigants will not have the same standing they had before. The presentation of these flawed documents relies on an Act of 1879 on the books that were held by the banks. Perhaps they were respected back then but they are certainly not respected now, neither for their accuracy nor for some of their actions. We have had a banking inquiry in this country and we should seriously question the privilege the banks had back in 1879 against what a modern bank or vulture fund is. It is not right to say that this is being constructed only for vulture funds. While it is being put in legislation for businesses generally, but if a banking official or a vulture fund represented by one of the major companies comes before a court and tells the judge, "You can rely on us, Judge, because what we are saying is true", that is hearsay.

How stands, then, the lay litigant trying to defend himself or herself? How stands the other side at all? Anyone who goes to these courts will see a range of senior counsel, solicitors and so on of the best type on the side of the banks and vulture funds. On the other side will be a family in distress, people in tears fighting for their lives, homes, farms or whatever it might be. For this reason, I support all the other speakers who have asked the Minister to withdraw these sections. I notified our Whip at 8 o'clock this morning that there was something wrong with the Bill, and the explanation given on what the Bill contained and its implications was inadequate. Owing to this uncertainty, and because this House needs to stand over the legislation it passes, I ask the Minister to withdraw these sections. I have seen court cases take place where the documents have not been signed or where they have been reconstructed in the case of banks. When they sell those documents on to a second buyer, it is up to that second buyer, such as Promontoria, to sort them out through receivers or the courts. That is what this is about.

We are rushing into this and doing the legislation incorrectly. We are poorly informed as to what is in this legislation. We have not been given a chance. I wonder what role the Ceann Comhairle plays in protecting Members and trying to get proper scrutiny of legislation going through this House. It is the Government's job to ensure we keep our people safe and have legislation that does not just benefit one well-off section but is there to benefit a judge as he or she makes decisions based on our legislation and on a level playing field.

I support Deputy Doherty in what he said about the vulture funds and their attendance at meetings. I chaired the finance committee for five years. They not only refused to come in but gave us the two fingers, and they continue to treat people badly. We asked that there would be no evictions in the course of the pandemic. That has not happened. If we are to keep our people safe, and if the Government is to be responsible and take responsible actions, the one single action it needs to take is to withdraw these sections and give us a chance to look at the Bill in far more detail than we are asked to do today. It is simply not right and it is unfair to people who find themselves before the courts with the cards stacked against them once again.


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