Bernard Durkan (Kildare North, Fine Gael) | Oireachtas source

This is important legislation and I commend the Minister of State on bringing it forward.

It is only a short Bill. It is short in implications in terms of what it has to say to us now but it is very important in the way it ties it up.

It reminds me of the phrase "and-or" and an issue the House has discussed in the past, that is, the meaning of "may" or "shall" in relation to what authority is given in a Bill. Of course, these words have two distinct and different meanings. "May" means the Minister may or may not, at his or her discretion. That is a simple interpretation of it. We have had countless debates in this House as to whether it meant something else and Deputies insisted on the use of the word "shall", which compels the Minister or whomever to do what is proposed in the particular Bill or section. It gives the Minister no options whatever, whereas "may" gives him or her options.

I realise what is proposed in this case. It is to replace "institute and conduct" so that it reads "institute or conduct" following the amendment. That is good. I accept it will take gardaí out of the courts and put them out on the street. However, what is important is that the person conducting the proceedings should be familiar with the details of the case. If that does not happen, difficulties will arise and people may walk when they should not walk or people may be convicted where they should not be convicted. That is an important definition. I am aware the Minister of State has studied all of this carefully beforehand and that it has been proofed to the extent necessary. However, we need to always recognise that there are exceptions to the rule that may arise in different ways and means from time to time. I mention that for noting at this stage and the Minister of State may have something to say about it.

In general, the courts work in a satisfactory fashion. But for the courts, we would be in very serious difficulty. The only issue I have ever come across is that people who feel aggrieved that the law did not treat them favourably may find themselves equally aggrieved after going to court. They invariably go back before the courts again and again as lay litigants and they never have their cases resolved. They are never happy that the ongoing discourse regarding their case never seems to get resolved. I mention that in the case of people who are deceived in relation to wills and people who inveigle themselves into the confidence of people who are vulnerable and may influence the individual who is vulnerable to the extent that they should not. Depending on the way the case is dealt with, it may well happen that nothing is done to reverse that situation. That should occur. There needs to be an opinion of last resort that examines the victim's situation in a way that gives some solace or recognition that his or her case has been heard. For example, solicitors will say they know the person is the victim and has been wronged but that is in the past and they cannot do anything about it at that stage. The Minister of State is an experienced lawyer and I would not like to get into an entanglement with him. However, I have seen both types of cases overturned, particularly where an injustice was done and the complainant persisted and achieved a result. In another identical case, in the same way, this was done by a judge interpreting what was put before him or her and saying the complainant had a valid case and the court would deal with it. There needs to be some reassurance provided for those people who feel wronged. That also applies in family law cases.

Family law cases are better dealt with than these cases. What we see, as public representatives, in cases we have dealt with is that psychologist's reports sought by the court are viewed by the other side as one-sided. It may be right, accurate or wrong. It may be as a result of discussions with one party only or as a result of discussions with the two parties, as it should be, but that does not always occur. On some occasions, decisions have been reached by the courts with far-reaching consequences whereby an aggrieved party becomes highly aggrieved and feels the system is against him or her. Members of the public need to be reassured in such cases. I am not agitating for anything other than a discussion on that issue at some stage in the future in this House. There are many such cases. Everybody knows about them and we have all tried to resolve them in one way or another. I hope we can do that.

I hope this particular amendment does not run into flak - no pun intended - and serves its purpose. I hope it achieves fair and even-handed handing out of justice in the courts.

Everybody goes to court to get justice but justice does not necessarily come. Justice is viewed from the perspective of the person seeking it and sometimes what people get is the law. The two are not always the same thing. I will leave it at that. I hope the legislation will work well.

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