Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage
I congratulate the Minister on her appointment and wish her well.
There is much in this legislation that is useful and necessary, of that there is no doubt. I accept what my colleague, Deputy Jim O'Callaghan, has said on remote hearings and so on for the courts, under their own rules of proceeding, to do this sort of thing and I welcome that. It is quite useful and I welcome the fact it is being put on a statutory basis.
Some provisions in the legislation are welcome because they are urgently needed due to the Covid crisis but sections 13 and 14 are not urgently needed. The legislation is presented as a package that is urgently needed but there is a section which is not urgently needed and which, in my view, requires more considered debate. I listened to what the Minister said about the LRC and the judgments of the Court of Appeal. I have looked at those judgments and read the relevant section of the LRC report. Neither the LRC nor the Court of Appeal judges indicated that this legislation is either necessary in its present form or urgent. They did indicate that some changes were necessary but they did not indicate a change of this magnitude was necessary. The section states: "Any record in document form compiled in the ordinary course of business shall be presumed to be admissible as evidence of the truth of the fact or facts asserted in such a document". That is a fundamental change in the law. Who does it benefit? We have heard suggestions that it benefits vulture funds. It certainly does but it also benefits anybody who is preparing business documents in the ordinary course of their business. t is indisputably on the side of the heavy hitters. I agree with Deputy Jim O'Callaghan that the court must take their own view in light of all the evidence presented but there is no doubt whatsoever that this tilts the balance significantly in favour of the person who is presenting this hearsay evidence in documentary form.
The more I read the section, the more I am convinced that it is rushed legislation. For example, what does section 14(1)(c) mean? It states: "in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned." There is obviously something missing there. I think that needs some redrafting. Section 14(2) provides that: "Subsection (1) shall apply whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he or she is identifiable) through whom it was supplied received it in the ordinary course of a business." How can one say they received it in the ordinary course of business if they are not even identifiable?
This has all the hallmarks of rushed legislation. I do not know what the objective is. I do not know why are it was parcelled in here amongs very necessary legislation. I appeal to the Minister to withdraw this part of the legislation because it requires greater study and scrutiny. It will have wide-ranging effects and fundamentally tilt the balance in favour of businesses before the courts as opposed to what Deputy McGuinness referred to as lay litigants.
I agree with Deputy McGuinness that there are echoes of what happened recently. I was in very much favour of the Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Bill 2020. I voted for it but I did not want to vote for the section that increased the pay of a super junior Minister by €16,000 at a time the country is facing a crisis as a result of the pandemic. I did not want to do that but, if I was voting for the Bill, I had no choice. If I had been a member of the Government or if I had been advising the Government, I would have advised them strongly to leave that section out. I am advising the Minister tonight to leave that section out. If it is included, I will vote for the Bill but with the greatest reluctance. I do not want to be put in this position on a permanent basis and I will not accept that. There is no reason this section should be included in this legislation at this time. I respectfully ask the Minister to withdraw it so it can get proper scrutiny. It needs such scrutiny because it will have the most widespread implications from this day forward.