Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage
I move: "That the Bill be now read a Second Time."
I am happy to present this Bill. It is the Government's intention to progress this Bill through all Stages and I look forward to engaging with Deputies in that regard. This important legislation constitutes the Government's response to the challenges posed to our courts and legal systems by the current pandemic. The Bill goes beyond the pandemic, however, and aims to make our legal processes more efficient and effective in future. I state confidently that this Bill is needed urgently and represents a substantial modernisation and reform of our courts and legal systems. The Bill covers a wide range of issues regarding our civil and criminal legal systems. I will outline these to the House.
The provisions of Part 1 of the Bill are standard in nature and common to nearly all legislation. Part 2 of the Bill contains urgent amendments to the Coroners Act 1962. The main provisions at sections 7 and 8 provide new powers for the Minister to authorise temporary additional capacity in the coroner system as necessary to meet the risks and challenges arising from the Covid-19 pandemic.
Section 6 is as standard. Section 7 inserts a new section, 11B, into the principal Act, entitled "Assignment and appointment of temporary coroners in exceptional circumstances". This section applies where a coroner makes a written request to the Minister justifying the need for a temporary additional coroner in that coroner's district. The Minister must be satisfied, first, that exceptional circumstances arise due to the number or nature of deaths arising from a pandemic, a catastrophic event or other mass fatality occurrence; and, second, that the requested extra capacity is necessary to increase the number and progress of coroners' enquiries into deaths in the coroner's district. If so satisfied, the Minister may assign or appoint a temporary additional coroner to that district for a period not exceeding six months. This may be renewed each time for a period not exceeding six months on a new justified request from the coroner of the district. A temporary coroner under this section will have all the powers and duties of a coroner for the district concerned during the period of appointment or assignment, other than the power to appoint a deputy. He or she will be, effectively, acting as an additional coroner.
Section 8 inserts a new section, 13B, in the principal Act entitled, "Arrangements for coroners’ districts other than coroner’s district of Dublin". This section provides that in the exceptional circumstances already outlined where a coroner of a district so requests in writing, the Minister may authorise the deputy coroner of that district to act concurrently for the coroner during a period not exceeding six months, which may be renewed. The deputy must have consented to so act. The same justification is required for this request and any renewal as under section 7 of this Bill and the same arrangements in respect of powers, duties and costs apply. The proposed section applies only to coroner districts outside of Dublin. The reason is that in the Dublin coroner district the deputy coroner is already authorised to act concurrently with the coroner under a Dublin-specific temporary provision in section 13A of the principal Act, which is valid until 2022, and which was brought in by my predecessor as Minister for Justice and Equality, Deputy Flanagan.
Section 9 proposes to amend section 14 of the principal Act. The effect of the amendment is that a person appointed as a temporary coroner under the new section, 11B, must have the same qualifications as are already required for a person appointed to the office of coroner or deputy coroner.
I will now move on to the issue of reform of the law, and that concerning civil proceedings first. Section 10 of Chapter 1 of Part 3 provides for a definition of the term "civil proceedings". More substantively, Chapter 2 of Part 3 provides for the remote hearing of civil proceedings. At present, current social distancing rules are causing disruption to and difficulties for court hearings. This is leading to delays in the administration of justice. The current climate is particularly challenging for the courts service in managing the efficient and continued operation of our courts. I am sure the Deputies will agree with me that we must assist our courts and protect the well-being of those who engage with them.
Section 11 of this Bill enables a court to direct that any category or type of civil proceedings be conducted remotely. A court may make such a direction either of its own motion or on the application of any of the parties. Participants will take part in a remote hearing by electronic means and from a location other than the court itself, whether inside or outside the State. A court shall revoke a direction to participate in a remote hearing where, for whatever reason, it would be unfair to any of the parties to do so or it would be otherwise contrary to the interests of justice to do so. It shall be also an offence to make a recording of a hearing without the permission of the court. Additionally, a judge may participate in a remote hearing, notwithstanding the fact that he or she is not physically within his or her district or circuit. In summary, the conducting of remote hearings will be an extremely important tool to facilitate the efficient dispatch of court business. It will increase court efficiency and assist in overcoming the current difficulties.
Chapter 3 of Part 3 concerns the admissibility of business records in civil proceedings. The reforms in this chapter are based very much on the recommendations of the Law Reform Commission in its Consolidation and Reform of Aspects of the Law of Evidence report in 2016. They mirror measures already in operation in criminal law cases under the Criminal Evidence Act 1992. The commission's report considers that business records are possibly the most common form of hearsay evidence presented in litigation and their legal status is of particular importance. In the majority of cases and in the previous absence of a statutory basis, many litigants agree to admit documentary hearsay evidence in order to expedite proceedings or spare themselves an adverse cost order if the objection proves unfounded. However, in a minority of cases, certain litigants may insist on proof of each and every document. These cases have posed increasing difficulties for our courts in recent years and highlight the need for statutory intervention.
The commission's report recommends that records compiled in the course of business, because they are generally reliable, should be admissible in civil proceedings as an inclusionary exception to the hearsay rule, subject to the safeguards that have been set out in the Bill. Separately, the Court of Appeal was called in a recent case, Promontoria (Aran) Ltd. v. Burns, to interpret and apply the law as it currently stands regarding the admissibility of business records in civil cases. Both judgments delivered by the court last April were clearly of the view that the law in this area needs to be updated by legislative reform.
More recently, the Judiciary has specifically identified legislative reform of the civil law rules on business records to my Department as among the most urgent priorities for it to be able to advance cases fairly and without unnecessary delays and costs to all parties concerned.
This chapter, prepared in detailed consultation with the office of the Attorney General, provides 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 of the fact or facts asserted in that document. However, it is important to say that just because a document is admissible in evidence does not mean the court will presume the records are correct. Under the proposed amendments, business records can be still challenged in the normal way by another party to the proceedings. In addition, they can be challenged by the court itself which will have a specific power under proposed section 16(1) to exclude business records evidence in the interests of justice on its own motion - for example, even in a case where no formal application has been made to exclude a business record because a litigant is not legally represented.
The remaining sections set out provisions around oral evidence in respect of those documents, rules in relation to providing copies of documents where the original is not available, the criteria for supplying documents to the court, and power for the court to determine whether it is in the interests of justice to admit documents as evidence, among others.
Chapter 4 of Part 3 provides for two important measures in the use of electronic means in civil proceedings. The first is the remote lodgment or e-filing of documents with the courts. The second is a provision for statements of truth as an alternative to the swearing of affidavits. Section 20 introduces e-filing as an alternative to the lodgment or filing of document replications in paper form. Rules of court may specify the conditions under which documents are submitted by electronic means.
Section 21 provides for a statement of truth. This may be in electronic form as it is an alternative to the swearing of an affidavit or statutory declaration as a means of submitting evidence or verifying documents. The section also provides for an offence of making or causing a false statement to be made.
I will briefly discuss Part 4 which contains substantive reforms to our criminal procedural law, particularly relating to the use of widened video link technology in criminal proceedings. This Part also includes important reforms to improve efficiencies in executing warrants. These provisions are urgently needed to assist the courts with the conduct of their business in these extraordinary times.
This Bill provides for wider use of video links between persons in custody and the courts which were formerly permitted in limited circumstances under sections 33 and 34 of the Prisons Act 2007. On the recommendations of the Attorney General, the Bill also extends the provisions to cover persons not in custody so that any accused person can attend by video link for certain applications where the court so directs.
I only have ten minutes to speak, so I will move on to Part 5. It concerns the introduction of provisions relating to broad sets of issues. These seek to ensure compliance with social distancing and the health and safety of citizens. They facilitate the continued operation via remote means of State bodies, unincorporated bodies and designated bodies. Section 29 provides for the remote meeting of State bodies. They may be designated by the appropriate Minister for that purpose, subject to certain criteria.
Section 30 provides for the remote meetings of unincorporated bodies, for example, clubs, community associations and charitable organisations. The GAA would be an example of such a body. The interim period shall be for three months following the commencement of section 3 or for any other period requested by the Government in the interests of public health.
Section 31 provides that the bodies designated by the Ministers may hold hearings remotely, subject to certain criteria.
Section 32 is aimed at improving efficiencies in our legal system and provides for the execution of contracts or deeds in counterpart, subject to the requirements as set out in the section.
Under section 26(1)(f) of the Courts of Justice Act 1953, the Courts Service must prepare and issue a statutory instrument each time it needs to vary a District Court opening time, location, etc. The requirements of that paragraph are complex and time consuming. They do not supply the Courts Service with the flexibility to address its requirements in situations such as, but not limited to, the current pandemic. Section 33 inserts a new section into the 1953 Act which provides that each time the Courts Service needs to vary the hours of operating or sitting location, etc., for the District Court, it shall publish a notice to do so on its website outlining the changes. This must be done in consultation and with the consent of the President of the District Court.
The Bill contains important steps in the process in modernising our courts and our civil and criminal law systems in the light of the current pandemic. I believe the measures I have outlined will ensure the continuity of the essential services of our courts in a safe and efficient manner for our citizens. I commend the Bill to the House and look forward to engaging with Deputies on the matter.
Sinn Féin will be proposing two amendments to the Bill. There was a sense of agreement around all of these measures about Covid-19, making life easier for people who work in our courts system and prison service and mitigating against the difficulties that exist. In that context, we all agreed there would be a suspension of the normal process we go through when passing legislation such as this. Normally, a Bill will pass through Committee Stage during which we tease out and work out all of the various issues that might arise or become contentious. We took the suspension of that legislative scrutiny seriously. We asked the Department to supply a brief in respect of the Bill, which we received. We discovered a small section in that brief which dealt with certain business documents being made admissible in civil cases. We wondered where this came from because, from our point of view and that of anyone in the legal profession with whom we spoke, there did not seem to be anything Covid related around that issue. It did not seem to be an emergency and yet it was included in this legislation which was not going to get legislative scrutiny. We were alarmed, and are still, in respect of that.
Our proposal is to ensure that some sense of regularity is brought to this situation. We suggest a time limit on this legislation. The previous health legislation which was introduced to deal with situations related to Covid will expire on a particular date and can be extended with the agreement of both Houses of the Oireachtas. That date is 9 November and we propose that the same date applies to the expiry of the Bill we are now discussing to ensure there is a sense of continuity. We all live in the real world and expect that, on 9 November, all of this legislation will need to be extended. We therefore commend the Sinn Féin amendment so that this legislation expires on that date and we can move forward from there.
The other amendment deals with almost the entirety of chapter 3 and covers sections 12 to 19, inclusive. We feel it is totally inappropriate to have those sections included in this legislation. I spoke at length to the Minister about it. We have exercised our concerns at all levels and spoken to many people in the legal profession. Many people have suggested that this part of the Bill is to benefit the vulture funds and certain aspects of the banking sector. The nub of the issue is around contracts that people sign and enter into with a lending organisation. It is possible for that debt then to be sold, usually for two reasons. The first is that repayments may be in arrears to some extent or there may be a difficulty around them. The second is that the legal documentation may not be as secure as one would like. That debt is then taken by vulture funds who exercise their right to recover it through service agencies. These service agencies are another step away from the original contract that was agreed.
When a case is litigated, as it stands, those contracts are considered hearsay evidence. That is the issue and this legislation will change that. That evidence which is hearsay under current legislation might become admissible and taken as live evidence, particularly in a summary case. It could be then used to have a repossession order placed against a homeowner or business.
We feel that is totally inappropriate.
The Minister mentioned that the Law Reform Commission published a report on this, and it has made certain suggestions. However, in most cases where a report like that had been published, it would go through normal legislative scrutiny. We would bring in various people from different sides of the argument to hear their worries or concerns and why they feel there could be unintended consequences that may have to be worked out. We would then proceed.
This Bill is, in our view, very precarious for borrowers in particular. The measure is being pushed through and is buried in a Bill which is supposed to be about Covid. When I met the Minister earlier today, I told her that I feel this has been done in a very inappropriate sleight-of-hand manner and is not in keeping with what all of us in the House have agreed to do in the context of Covid, that is, work together in a spirit of co-operation. It is wrong. I implore the Minister to withdraw that section of the Bill and ensure that we can deal with it later on.
It may be quite appropriate, but if it is it should be introduced through a proper legislative framework where there is full scrutiny of it and we weigh up all of the pros and cons, something we do not have the opportunity to do here at the 11th hour of the 11th day, that is, the evening when we are about to shut down for the summer. It is totally inappropriate that that particular provision is in the Bill at this time.
I understand the Department may produce proposals, but sometimes the Minister has to be strong, stand up to the Department and say that a proposal is not appropriate and should be withdrawn. I implore the Minister to withdraw the measure and ensure we can get as much support as possible for the Bill and all other legislation connected to Covid-19 because it is in the interests of everyone that we work together and co-operate in respect of these matters.
This is a political issue. Buried within a Bill which is supposed to be about Covid is something which has nothing to do with it. It is wrong and inappropriate and I again implore the Minister to withdraw the proposal and ensure we can have some level of conscience in regard to what we are doing and ensure that people who are facing a David and Goliath struggle between bankers and the ordinary borrower-----
There is a David and Goliath struggle between bankers and ordinary lenders. We need to make sure that we as legislators are very much on the side of ordinary lenders and stand up for them. This Bill is an opportunity to do that, and I implore for the Minister to withdraw this proposal.
Gabhaim buíochas le Seirbhís Leabharlainne agus Taighde an Oireachtais as an report a rinne sí agus as a neamhspleáchas.
I want to speak on certain applications in section 23 regarding criminal proceedings to be heard via live video link. This section was obviously prepared a long time ago, probably pre-Covid. I know from having worked in the criminal courts for some years that there are many cases where it is unnecessary to bring a prisoner to court. Sometimes a prisoner would agree that he or she will not have to be put into a tiny cage in the back of a van and travel for hours to a court hearing.
I have particular concerns about what will happen in indictable cases. There are cases for case management, call-overs, preliminary applications and the like, perhaps even in appellate courts sitting during Covid. I would have less of a problem with this if it was done by consent of a prisoner. If the Bill had been developed in consultation with the Bar Council or the criminal lawyers committee of the Law Society, I may have fewer concerns.
Some 80% of what are perhaps unnecessary journeys could have been made by consent. I fear, however, that the real reason behind the Bill is to reduce the €17 million bill for transporting prisoners to court. It is a triumph of expediency over fairness.
I agree with the summary of the report from the Library and Research Service. Fundamentally, as we know justice has to be seen to be done. There are personal freedoms in the Constitution but on a practical level in indictable cases, every case apart from murder, rape, or, perhaps, treason, can be dealt with in the Circuit Court. There are cases where people could potentially face life imprisonment, and under the provisions in the Bill they could be heard remotely or via video link without accused persons having their legal teams beside them or members of their family in court. That is fundamentally unfair. I do not know how it could be in the interests of justice or how any judge could see that it would be in the interests of justice, to allow such a thing to proceed.
The report from is very good. It states, quite fairly, that the general consensus is that such hearings are better suited to civil matters and less suited to use in the Circuit and District Courts and more suited to civil courts. It goes on to state that legal professionals on the criminal side are generally resistant to engaging in this type of technology on a substantive day-to-day manner.
The report deals in quite a fair way with some of the ways the courts in England operate. The UK Civil Justice Council said that the majority of respondents felt that remote hearings were worse, half of the hearings were affected by technical difficulties and 12.9% had serious technical difficulties. That is what we are dealing with. We all remember when the Department of Justice purchased a video system for Garda stations. When everything was going digital, it purchased a CD system for the recording of interviews in Garda stations. I fear the technology will not be sufficient. Professor Anne Wallace has noted there is often a difficulty in receiving and giving non-verbal cues from other participants in the proceedings and difficulty in hearing or seeing some of the respondents.
Surveys have been carried out in England which show that 67% of respondents felt there was a negative impact on the ability of defendants and their lawyers to communicate. This measure will creep into the system. It is likely to become the norm. That cannot be in the interests of justice. I submit that it is not something that Declan Costello would have agreed with or that Eamon de Valera would have introduced.
The Bill is rushed, flawed and dangerous. I do not think the necessary technology is in place. It will reduce the ability of defendants to communicate in confidence with lawyers. There is a provision for ex parteapplications. That should be removed from the Bill. The proposal to use video links is a cost-saving exercise and we should consider it very seriously before introducing it.
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.
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.
I wish the Minister well in her new post. I believe this is the first time I have addressed her in this role. I know she has a hard job to sort out. I have previously raised many issues about what is going on in the Prison Officers Association, which is totally unsavoury and needs to be sorted out. There is the issue of justice for the families of victims of the Omagh bomb. They were abandoned and never got the justice they were promised by her predecessors and the previous Taoiseach. There is the Fr. Niall Molloy case and countless others where people need justice.
I am shocked that the Minister would slip into this legislation the provision affecting the vulture funds. The Bill is entitled the Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020 and it is intended primarily to deal with issues relating to Covid, which we all support. However, hidden in Chapter 3 is a section dealing with business records. It is very murky that it is being introduced in the final hours of this Dáil session.
Chapter 3 is designed for vulture funds by their well-paid legal advisers to remove any protections for people from vulture funds. In this Bill, Fianna Fáil, Fine Gael and the Green Party are making a very devious attempt to get around the hearsay evidence rule. That 150-year old law has stopped vulture funds in their tracks, one of the only ones that has done so. The vulture funds have demanded that the Government enact legislation that allows them to get around the rule by introducing admissible business documents from third parties.
These currently have no legal standing before the courts. They may include photocopies of original documents which have been lost or destroyed or which are not available for other reasons. The Bill will also allow photocopies of photocopies to be admitted as evidence. This will allow families to be evicted on the flimsiest of evidence. It is truly shocking. The Bill attempts to undermine the independence of the courts to look at a case fairly and impartiality and seeks to tie the hands of the Judiciary in order that vulture funds can continue with their evictions, as they have throughout the Covid pandemic despite the promises we received that they would not.
This Bill proposed in the Lower House will be signed by President Michael D. Higgins within a matter of days. Over the years there have been several pushes to have the hearsay evidence rule removed from law by the Law Reform Commission and other parties with vested interests in its removal. It is understood that there has been heavy lobbying of the Department of Justice and Equality by vulture funds and legal representatives following recent judgments. The concern is that the Government has jumped to the job and done these people's bidding. That is shocking.
We are all the time railing against what these vultures are doing. The former Minister, Michael Noonan, said they were welcome to our shores. Vultures are not welcome anywhere because we know what they do. They take the eyes out of sheep and lambs out in the field. That is what they are like. They are craven people.
As I have said, it is understood that this is the result of heavy lobbying. If the Bill passes all Stages and is signed into law, the balance of power will be with the vulture funds and no protections will be afforded to families, farms, homes or businesses. Deputies of all parties and Independent Deputies need to step up to the plate and oppose this Bill. I am glad amendments have been tabled. I will support the Sinn Féin amendments.
If the vulture funds are allowed to dictate how the country is run, a grievous injustice will be allowed to prevail and those who have been fighting both a daily battle and battles in the courts over many years will be punished. It is a shocking indictment of the present Government and its direction.
I will also mention another issue in the important area of justice, a development which will be of deep importance to all citizens and to Members. On 9 July, the European Court of Justice issued a damning judgment against the State in respect of its handling of maritime tragedy investigations. It found clear and obvious fault in the fact that departmental officials were on the Marine Casualty Investigation Board, MCIB, which is supposed to be independent. Of the five people on the board, two are the chief surveyor and the Secretary General of the Department or his appointee. An additional requirement for compliant officials is clearly set out in the European directive, which reflects international law. This is a damning indictment of our Marine Casualty Investigation Board. I have raised cases in the Chamber, including cases regarding Whiddy Island and many other places nationwide. Some of these incidents occurred off the south-east coast at Tramore.
The European Court of Justice judgment also explains that independence is critical if we are to learn from the tragedies and save other lives. Ireland has failed to put in place suitable arrangements. There is a clear conflict in officials investigating their own regulatory framework and supposedly making recommendations to themselves. Following the judgment, I wrote to the Minister of State, Deputy Naughton, in respect of failed reports regarding the deaths of my constituents John O'Brien and Pat Esmonde off Helvick Head in 2010 and regarding the deaths of all others in respect of whom investigations were carried out while this conflict of interest prevailed. These amount to approximately 300 reports.
With regard to the tragedy of John O'Brien and Pat Esmonde, may they rest in peace, I have been reliably told that, due to these fundamental failings, full information was not included in the MCIB report, which had the effect of compromising the Garda investigation. This needs to be investigated. I am happy that the Garda Commissioner has now directed the Garda National Bureau of Criminal Investigation to reopen this case and look at it again. I thank Mr. Michael Kingston, the maritime lawyer, and Ms Anne Marie O'Brien for the sterling work they have done in an effort to get justice for Ms O'Brien's late brother and his colleague, Pat Esmonde, who died on that beautiful but fateful day ten years ago. Their families, and many others, need justice.
Coroners are also referred to in the Bill. We in south Tipperary are losing our coroner, Mr. Paul Morris. He is an excellent legal person who has given sterling service. The north Tipperary coroner will now be taking over. Tipperary is more than 120 miles long. The distance alone is challenging. Coroner's courts are very important. People need them when they experience tragedies and sudden deaths. The coroner in south Tipperary has always been much busier than the coroner in north Tipperary. This is a retrograde step and another downgrading of our courts services. It is another loss to the town of Clonmel. I wish Mr. Morris a very happy retirement. He did a great job and I wish him well but we need a coroner in south Tipperary, as we have always had.
There are cuts everywhere but we are supporting vulture funds and passing legislation in the dead of night before our break for the holidays to ensure they are allowed to carry on their murky, unseemly, disdained practices. They have been carrying these on throughout the period of Covid and they are continuing to do so. I am not supporting this Bill for that reason. I will vote against it.
I too wish the Minister well in her new post. She is very fit. I saw her running to the Chamber yesterday evening and it was no bother to her at all. I will, however, be opposing and voting against this Bill because I am very worried about parts of it.
This new Bill is dressed up to look as if it only deals with issues to help us deal with Covid-19. Centuries of legislation will, however, be abolished to appease vulture funds who want to evict Irish families or to take farms from farmers or property from commercial property owners. Chapter 3 relates to very important issues recently discussed in the Court of Appeal. In the judgment on Promontoria (Aran) Ltd v.Burns, a case which regarded the admissibility of hearsay, all other relevant authorities were considered and those taking cases against the vultures and receivers were given a very easy route to court and a more than credible defence against them with regard to how they might present their alleged evidence.
This Bill is going through at breakneck speed. This case was before the courts in April and this Bill was proposed on 22 July. The Government wants not only to effectively kill the decision made in the Burns case in its entirety, but to also make it even easier to present evidence from third parties in civil proceedings, which would result in a free-for-all. One will not even have to identify where one got information. According to this Bill as currently worded, it will be enough to believe it to be true. That is very wrong and very unfair. It will cause massive undue hardship for poor people who may have done nothing wrong.
This Bill cannot and should not be allowed to pass in this form. It is a blatant attempt to further the cause of vulture funds and receivers in particular, who have been finding the courts a much rockier road of late. Chapter 3 needs to be amended. More properly, it should be disregarded. If we, as elected Members, let down ordinary working people, including farmers, house owners, and business people, by making it easier for vulture funds to take their property from them and sell it on, we will have abdicated our duty. As Deputy Mattie McGrath said, we all know what vultures are. The way the banks have handled this, in selling debts to vulture funds, is wrong in the first place. That is what we should be addressing. We should get rid of these funds. The banks should never have been allowed sell debts to vulture funds.
I am sharing time with Deputy Pringle. We will take five minutes each. I am up here in the balcony. This Bill deals with how to handle civil and criminal hearings during the Covid crisis. It broadens the types of hearings that can be heard electronically and allows for evidence to be presented electronically. It provides that the rules of court may provide for a statement of truth to be transmitted with the document in place of the affidavit or statutory declaration instead of an oath.
It also provides for the appointment of additional coroners where necessary.
These proposals seem reasonable when taken at face value. We have all had to change our work patterns and our work practices. I have listened carefully to the arguments put forward by Deputy Martin Kenny on the business section of the Bill concerning the admissibility of documentation as evidence of the truth. This arises from a specific case concerning a vulture fund. A number of Deputies have alluded to it. I do not have a legal background and, to be honest, there has not been sufficient time to go through the Bill properly. However, I have concerns, not least because we have not had time to fully consider this section. I have listened to the contributions here this evening and I am in favour of the suggestion of Deputy Howlin and others that we take out this section and that we debate and discuss it fully in the autumn so that we do not have unintended consequences. In any legislation, we need to be rigorous and prudent and in this case we are being rushed and unsure, mainly because of this specific section.
It is generally recognised by all of us that the main purpose of this Bill is to facilitate the operation of the courts and to minimise travel and disruption. I draw the Minister's attention to a situation where instead of minimising travel and disruption, we are in fact creating it by a proposal to move jury courts from Sligo to Letterkenny. I accept the Bill is prompted by Covid and concerns capacity, yet courtroom No. 1 in Sligo has sufficient capacity to conduct a jury trial. A letter from the Courts Service issued yesterday states that Sligo Courthouse has the required capacity when the gallery is included. However, it goes on to state that the gallery contains six timber benches which are not suitable for jurors. As it is a listed building, it is stated that planning permission may be needed to make the benches comfortable for jurors. It does seem somewhat excessive, but if it is necessary I say it should be done, in the context of major disruption, major dislocation, major costs and the real possibility of creating a further backlog of cases. In that context, planning is a small issue. There are sufficient courtrooms in Sligo to allow for other work to proceed when courtroom No. 1 is in use for a jury trial.
I want the Minister to consider the significant logistical difficulties in moving to Letterkenny. The distance from Sligo to Letterkenny is 113 km and one-way travel takes one hour and 31 minutes. Many of the gardaí will travel from Ballymote, which takes one hour and 46 minutes. We should also think of the chaos because of the possible backup of trials that cannot be arranged in the event of pleas or trials not proceeding for whatever reason. Jury panels could be brought in, only to be sent home again. Witnesses, gardaí and court staff must be also taken into consideration. In the context of a Bill that is supposed to increase efficiency in how we conduct our business, a proposal to move the jury trials from Sligo to Letterkenny goes in the very opposite direction, when we can facilitate those trials in the courthouse in Sligo.
I hope Deputy Pringle will allow me to have another ten seconds.
We have another venue, the Gillooly Hall in Sligo. It was used previously when the courthouse was being renovated and is available also. Efficiency is the order of the day. I hope the Minister will listen to what I said on the issue.
I am pleased to have an opportunity to contribute to the debate today on this Bill. It is hardly surprising to the Minister that I will echo the comments that have been made by all the Opposition Members so far about section 14, which deals with business and how vulture funds are being facilitated with court cases that people are contesting. I am not sure whether they have the right to do that and it is vitally important that the section should be taken out of the Bill, as other Members have suggested. That would make sense because there will be a division on the Bill tonight if that does not happen. That section should be removed and perhaps put in a stand-alone Bill. I am sure there will be other courts Bills and other justice Bills coming forward in the autumn and the section could be inserted in another Bill after it has had proper consideration if it is required by the Minister to deal with this issue. That would make sense. By any stretch of the imagination I do not think one could say this is a Covid-related piece of business that needs to be accelerated. It obviously has been put in to speed up the process and to make it more acceptable for vulture funds and banks that are pursuing people who are in a difficult situation as it stands, and who need to be facilitated and helped to move on. The Minister should take that on board and remove the section from the Bill.
The other provisions in the Bill are clearly related to Covid. The Coroners Act does need to be amended and that should be done. Given the delay in coroners cases, we should consider making the change permanent. There may not a sufficient number of coroners at the moment to reduce the backlog of cases to a reasonable level so there may be a justification for appointing extra coroners for a temporary period.
I note the points that were made about people having to attend court and the extension of videoconferencing facilities. Has consideration been given to how that could impact on the right of individuals to have discussions with their legal representatives, in particular confidential discussions? When somebody is brought to court that is probably the only time he or she might get to see a legal representative. Has that been considered in the context of the Bill, as it is vitally important? I accept that we must reduce the need for the transportation of prisoners across the country and not have them zig-zagging around the place, but one of the important side effects of that is that they get to see their legal representative as well. I appreciate that the legal representative can visit the prison in order to have a consultation, but it is important that we should not restrict in any way a person's access to his or her legal representative, as that is vitally important for individuals in terms of pursuing their case.
Those are my three concerns about the Bill. My main concern relates to section 14 and the operation of vulture funds. I urge the Minister to withdraw the section, as other Members have sought. At least then the Bill could go through the House.
In March 2020 the Courts Service introduced measures to scale back the work of the courts because of the Covid-19 lockdown period. In a statement published in July, the Chief Justice, Mr. Frank Clarke, outlined plans to further increase the number of remote hearings offered by the Courts Service. Most appeals before the Supreme Court and the Court of Appeal, to date have been conducted remotely, save for a small number where a physical hearing was considered necessary. He stated that this situation will continue for the foreseeable future.
The President of the High Court indicated that the service must preserve courtrooms for those cases that can be dealt with only by way of physical hearing. The president noted that remote hearings should be Covid-19 proof in the event that a second wave of the virus leads to the introduction of new health and safety restrictions in the country.
The changes proposed in the Civil Law and Criminal Law (Miscellaneous Provisions) Bill take account of the new reality of dealing with the challenges of public administration in the Covid-19 environment and beyond.
Our courts, like our hospitals, have seen increased workloads over the years and Covid-19 requires us to introduce legislation to allow continuous access to legal remedies and the provision of law in civil, criminal, commercial and family law matters. Bottlenecks in our courts system were already a problem before the arrival of Covid-19. The need to adhere with public health requirements and deal with the legal implications of a public health emergency requiring mandated social distancing cannot be relaxed when Covid-19 is in our country and the risk of a further spike remains at a high level.
Provisions proposed in this Bill will broaden the types of criminal and civil cases which can be heard electronically. The new Bill will allow for evidence to be presented electronically by witnesses, where authorised. In order to accommodate evidence delivered by electronic means, a statement of truth may be requested to be delivered electronically with a digital affidavit or deposition. This statement of truth would in effect supplant the normal requirements of oath to be presented at court. The pending Perjury and Related Offences Bill 2018 was resubmitted to this House last night by the Regional Group of Independents. It was agreed that it would be restored to the Dáil Order Paper. Hopefully, when it is passed it will further strengthen the issue of the veracity of electronically submitted evidence. The provisions proposed will also set out how meetings of designated incorporated and State bodies can be held electronically to support requirements for social distancing.
The Bill runs to a great number of Parts and sections. There are notable provisions including amendments to the Coroners Act 1962 which seek to allow the Minster to appoint temporary coroners in exceptional circumstances upon the request of a coroner or coroner's district. This would be in exceptional circumstances such as in a pandemic or natural catastrophe that may lead to mass fatalities. The stipulations of such appointments would require that the person have years of suitable experience or already be a coroner for another district. The duration of appointment would be six months pending a review extension requiring the prevailing circumstances to be in continuation. The Minister would have the power to revoke this appointment at any time. We can see the value of that given the spike in Covid deaths in recent months.
The new provisions will also allow for the remote hearing of cases in civil proceedings and can decide on the technology being used and on any objections raised to a case being heard remotely. The remote hearings will have the same powers as hearings in person and the same legal immunities and privileges will apply. It would also provide for an offence where a person wilfully obstructs participation of individuals or interferes with the technology platform the court is utilising. Fines and incarceration for up to three years are possible on conviction.
Another range of provisions seeks to have business documents compiled during the ordinary course of business presumed to be admissible as evidence in civil cases. I note what other Members have said about section 14 and I would be interested in discussing with them and the Minister whether the section could be omitted from the Bill. Evidence to witness credibility for supplying such information will be admissible. Those who supply such information in civil courts will be deemed to be bound as if they were attending court in person and all normal legal parameters remain as before. To assist such civil proceedings evidence can be given electronically where a declaration can be launched with an accompanying statement of truth to be transmitted with documents. These statements can be signed electronically and would have equal standing to those given in person.
Remote hearings have been noted to be suitable for the appellate courts and have been particularly useful in the hearing of preliminary applications and in case management. They are not well suited for certain matters such as where evidence is required to be elicited from witnesses or in matters that require a jury. In criminal court proceedings remote viewing enables a person to participate in the proceedings and see the proceedings before the court. It enables other persons participating in the proceedings who are not in the same location as that person to see and hear their input and evidence.
Remote hearing in criminal cases needs to be widened in use and this Bill proposes to extend the types of matters for which video links may be used. These can include permit arrangements, returns for trial, sentencing hearings and certain hearings relating to surrender proceedings.
An amendment of the Criminal Justice (Administration) Act 1924 provides that when warrants are outstanding on an individual already incarcerated such warrants can be served without the need to move that person to a different prison to have the warrant served. We can all see the benefits of that where utilisation of manpower and resources are concerned.
Regarding the remote hearing of appeal proceedings, section 26 proposes that the Supreme Court or the Court of Appeal in criminal proceedings may, of its own motion or on the application of any of the parties, direct that proceedings be heard by remote hearing. Section 26(7) proposes the creation of a new offence of interfering with or obstructing the communications technology used in promoting remote viewing.
Ultimately, these proposals will recognise the new realities of operating the Courts Service within the constraints imposed by a pandemic. They offer an additional power to appoint dedicated legal coroners to provide additional resourcing to the State where required. They will help to streamline and create efficiency in our courts system and they will help to move our courts further and faster by embracing new technology and, in so doing, provide a better legal service for citizens and other legal entities. Having said that, I would not like to see these provisions used to fast-track cases concerning vulture funds, as was referenced earlier.
Ar dtús, déanaim comhghairdeas arís leis an Aire, Teachta McEntee. Níl aon dabht agam ach go n-oibreoidh sí go crua agus go dícheallach sna blianta amach romhainn. I start by commending the Minister, Deputy McEntee, and wishing her well in the years ahead. I wish her every success as Minister for Justice and Equality.
There are many provisions in the Bill we are discussing which are urgent and necessary in light of the Covid pandemic. I am thinking in particular of the repeal of section 33 of the Prisons Act 2007. That Act provides and requires that a prisoner, when he or she is being arraigned or sentenced, must be physically present in the court. In the context of the Covid pandemic that is an unnecessary requirement but it was not a requirement that could be got around because of the law as it existed. As such, I welcome that this section is being repealed. I also welcome the new provisions being put in place for criminal trials and the decision to do away with the necessity of persons having to be in court in certain scenarios. It is preferable that people be in court but in the context of a pandemic it is important that we preserve and protect the safety of our prisons in particular. They have done very well during the course of the pandemic.
There are, however, other provisions in the Bill which are not urgent and merit further discussion, debate and hearings of the Joint Committee on Justice and Equality, as was the practice on previous occasions. I refer in particular to the provision in respect of the admissibility of business documents, which I will address presently. I will refer first to the provisions in the Bill which are particularly urgent, save those I have already mentioned.
Chapter 2 of Part 3 deals with remote hearings of civil proceedings and I am pleased to say that the courts have already been having remote hearings of cases. That has been happening with the Supreme Court, the Court of Appeal and the High Court. I assume it is also happening with the courts of local and limited jurisdiction. It is important to point out, however, that simply because there was not a statutory provision in place at the time those remote hearings were taking place, that does not mean there is any question mark over them. The High Court is a court of full original jurisdiction. It is entitled to govern its own affairs and to have its own rules on how it will conduct its hearings. Very properly, that court determined that the justice system in this country could not simply stop because of a pandemic and for this reason the hearings of the High Court, the Court of Appeal and the Supreme Court continued during the pandemic. I commend the Presidents of the Courts and the Chief Justice on ensuring that business continued at a very difficult time for all concerned.
The next provision I will refer to is in chapter 3 of Part 3, which deals with business records in documents which are presumed to be admissible in hearings. A number of Deputies have spoken of how this a provision put in place to benefit what are referred to as "vulture funds". It is unquestionably the case that the provenance of this provision derives from a number of judgments of the High Court, the Court of Appeal and the superior courts, which have ruled on a number of occasions that evidence which has been put before them by certain financial institutions is not admissible because it violates the hearsay rule. In particular, that happens where financial institutions come before the courts, having had loans assigned to them, and try to put forward evidence on the basis that this is first-hand evidence.
However, it clearly is not because it is information they have learned as a result of the assignment of the loan. It is important to note, however, that the issue of the inadmissibility of certain documents in these proceedings has been dealt with by the courts for a number of years. It was referred to by Mr. Justice O'Donnell in the case of Bank of Scotland PLC v.Beades. It was referred to by Mr. Justice Barniville in the case of Promontoria (Arrow) Limited v.Burke and others. Very recently, it was identified by Ms Justice Baker and Mr. Justice Collins in the case of Promontoria (Aran) Limited v.Burns.
It is instructive to note, however that the decision in the Burns case, to which the Minister referred, was only given by the Court of Appeal in April this year. It was a decision given remotely because of the pandemic. At the end of it, Mr. Justice Collins referred to the fact that at some stage, when circumstances permit, it is clearly an issue that deserves the attention of the Legislature. I have to say that even he, I suspect, would be surprised that the Legislature was planning to completely change the law in this area within a period of four months. I do not think we can simply state there is an urgency to this that requires it to be dealt with this evening. It was referred to in the 2017 report of the Law Reform Commission but that was an enormous report that dealt with reforming the laws of evidence in general. Just to pick out selectively one provision in the report and state we have to run with it now does a disservice to the excellent work done by the Law Reform Commission.
I would have thought it would have been preferable if this significant change to our law could have been examined, appraised and discussed at a lengthy hearing of the justice committee. It is important to point out to other Deputies that although they keep talking about how this is for the benefit of what is referred to as vulture funds, it is a provision in the law that will have a significant impact and it will apply to a variety of business disputes. The core of the provision is contained in section 13, which states that in civil proceedings 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. This is a significant change to the law. Generally, when a document is produced in a court of law the document is only evidence or proven if an individual comes before the court and states he or she generated that document or that it is a document he or she received. It is never the case that the information contained within the document is regarded as proof of the facts contained within the document. That is a presumption that the section is now inserting into our law. Like all presumptions it is a rebuttable presumption, and subsequent provisions provide for this, but I would have thought the provision would have benefited from it expressly stating it is a rebuttable presumption. I would have thought we need to be careful in how we enact legislation such as this, which could have consequences beyond which all of us intend.
I will vote for the Bill as I am a member of the Government but I would have thought a provision such as this, which is not urgent and which clearly is something that has been discussed in the courts and has been the subject of a Law Reform Commission report, would benefit from more consideration, particularly by the justice committee.
There are further provisions dealing with this matter in the Bill. This then take us to Part 4, which deals with the criminal procedure. I have mentioned this briefly already and it is of benefit that we are repealing section 33 of the Prisons Act 2007.
We also have miscellaneous provisions, and one in particular that stood out is the issue in respect of statements of truth. It is unfair that for many years people who do not have a religious belief felt they were compelled to swear on a Bible that the evidence they were about to give was truthful. I know it was the case that individuals always had the option of affirming but at present the affirmation process is more complicated than people believe it to be. We need to recognise that we need to accommodate individuals who do not share the beliefs many of us do but who want to be able to be part of the justice process.
In respect of the provisions referred to in Chapter 3 of Part 3, the explanatory memorandum refers to the fact this admissibility of business documents is something that will apply in criminal proceedings also. The Bill does not apply for this. It is only in respect of civil proceedings. However, it is the case that in our criminal law, as the courts have recognised, we have relaxed the rules in respect of the admissibility of certain documentation to enable those documents to be admitted as evidence and not to fall foul of the hearsay rule.
It is also important to note, and we can be comforted by this, that no matter what is in legislation that we enact here, when these issues get to be dealt with in a court we will have an independent judge who will appraise the evidence. Just because a document is admissible in evidence does not mean it will be accepted by the court as being proof of what is contained within it or that the court will accept the veracity of the person putting forward that document. Courts will always continue to assess cases in the civil field on the basis of the evidence that is given and no statutory provision that we create this evening will undermine that.
Cuirim fáilte roimh an díospóireacht seo. I welcome the debate this evening but I must say I am absolutely taken aback that the Government has abused the goodwill of Members of the Opposition who, given the pandemic, the serious risk to health and the impact on our economy and court systems and throughout society, have waived normal political and parliamentary scrutiny on legislation and allowed for legislation to be dealt with in one sitting of the House. We have allowed for a truncated period for amendments to be submitted. Legislation that would usually take months to pass in the Houses is now taking hours, with the support and facilitation of Members of the Opposition, including Sinn Féin. We have done this because we recognise the consequences the pandemic is having, sometimes despite the fact we do not support the legislation that is before the House.
What we never expected was that the Government would use this support and use the pandemic to sneak into legislation amendments that have nothing to do with the pandemic, nothing to do with Covid-19 and nothing to do with the circumstances in which people find themselves and not emergency legislation. We had that in one instance last week, where in a three-section Bill, one section was to give a €17,000 wage increase to a Minister of State, and in this legislation, which is supposed to be emergency legislation, there is a whole chapter that facilitates vulture funds. We could not make this up.
This is about supporting vulture funds. I sat on the finance committee for the previous two Dáil terms. Every member of the committee was looking to get vulture funds before it so we could question them about their practices of repossessing homes and how they are dealing with debtors in this State but not one of them would present before the finance committee of the Houses of the Oireachtas. Perhaps the question is why would they, when they have a Government that is willing not only to pass legislation for them but to pass emergency legislation that will do only one thing, which is, in Chapters 12, 13 and 14 of the Bill, to allow them to rely on hearsay and inadmissible evidence. These vulture funds will now be able to rely on these provisions to secure debts to evict people from their homes. It is simply not acceptable.
At this late stage and at this late hour, I appeal to the Minister to do the right thing and not to facilitate the vulture funds. If she believes that is what needs to be done, at least let us go through the proper scrutiny process. Why has this come about? It is because the vulture fund in this case, Promontoria, which is well renowned in this State for its practices, lost a case. It lost a case that was appealed to the Court of Appeal just a number of months ago, in April. Lo and behold, the Government believed it was a priority, just a number of months later, to write into this Bill a number of sections that resolve the issue in favour of Promontoria, basically nullifying the decision made in Mr. Justice Collins's determination at the Court of Appeal.
With all the pressing priorities in the State, this was the issue that was brought forward by the Minister for Justice and Equality to the Cabinet. Somehow, with everything else that is happening, she felt that this case, which ruled against the vulture fund and in favour of the debtor in April and which protects many people not just in the case of Promontoria but in other cases, was so important that the Government should get it through in a way whereby there is no pre-legislative scrutiny, no proper Second Stage debate which would normally take days to conclude, no proper Committee Stage but one that is guillotined and no proper Report Stage, which should take place two weeks later. It decided to do something unique and to use the cover of the pandemic to support the vulture funds. It does not matter that the vulture funds will not come in and talk to the elected representatives of the people of this State. Why would they? This Government has rolled out the red carpet to them, not only to say, "What do you want?" but to say, "We will not only give you what you want, but we will use emergency legislation to bring it in".
This is wrong on a number of levels. I appeal to the Minister to do the right thing and not use the pandemic to introduce legislation that only favours vulture funds. It will send shivers down the spines of the debtors who are now in the grips of these vulture funds, be it Promontoria or the many others. I appeal to Members across the political divide here not to support sections 12, 13 and 14 of the Bill.
I add my voice to many of the other voices from the Opposition. Legislation is an incredibly important element of what we do here and of the lives of the people outside the House. People live and die by legislation that is created in this House. We are discussing legislation here that has very far-reaching effects in Irish society. Obviously, vulture funds are a negative element of Irish society. As the previous speaker said, they have had phenomenal access to the Department of Finance over the last number of years, yet they have had very little scrutiny from the elected representatives in the committee on finance. Indeed, they refused every opportunity to be questioned by the committee on finance in the past. They simply pick on the financial carcases of families, individuals, farms and businesses.
The Government's attitude to vulture funds over the last decade has been wrong. I have stood in the House before previous Ministers for Finance and asked them to ensure that assets, houses, farms and buildings can be sold back to families at the same price the vulture funds receive them, but Minister after Minister has refused to do that. It always seems that the vulture funds have the ear of the Government and have opportunities provided by the Government, and the people who are in battle with those vulture funds for properties, houses, farms and businesses, which they have poured their lives into and which they have bled and sweated to keep, always get negative responses from the Government. Now we have the Government crowbarring a section into a legislative measure under the cover of Covid-19 that radically reduces the grounds on which people stand legally in their battles against vulture funds.
I ask the Minister to consider removing it and to place it where it should be. It should be given scrutiny. The idea that a Bill of this import should be dealt with in its entirety in a matter of hours on the last day the Dáil sits before the recess is nonsense. The reason there are processes in Leinster House for pre-legislative scrutiny and for ensuring that all affected groups have the ear of the Minister and are consulted and that legislation goes through five Stages, with the back and forth on Committee and Report Stages on amendments, is to ensure the legislation is right. We know that when we do not do that, we simply do not get it right. We create massive mistakes, and people will live and die by those mistakes. I ask the Minister to make sure that she has the will of the Dáil in this case. The Dáil has assented to helping the Government to get through legislation in short periods of time because of the Covid pandemic.
I also wish to discuss another element of the Bill. Aontú is an Irish republican party. Our views date back to the ideas of Wolfe Tone. We believe in pluralism. We believe in an Ireland of Catholic, Protestant and Dissenter, as well as those of every other religion and none, being able to live together in harmony with one another. That pluralism is not one that seeks to make people's characteristics invisible in the public domain. We believe that people in their religious or cultural attributes should be able to flourish in the public space. This country has a history of extreme uniformity. In 1950s Ireland there was one way and one way only. If one did not accept that way, one was cast aside. We have reached a level of pluralism in recent times. People can express religious beliefs if they wish and do not have to express any religious belief if they do not wish to do so. Both the secular and the religious can live equally side by side.
It would be a big mistake if the Government rowed back and attacked the pluralism we have today by returning to a situation where there is uniformity again and everybody must adhere to that new uniformity. When it comes to oaths and so forth, the Government should simply give people a choice on how to express their commitment to tell the truth in courts in the future. It is very disappointing that we would have a new uniformity or orthodoxy and that the achievements we have attained towards pluralism in recent times would be scrubbed out.
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.
I will not delay the House for long. I wish the Minister the best of luck in her new position. If she is to leave a mark with the new Government, she has an opportunity to do so this evening. I ask her to listen to the previous speaker, Deputy McGuinness, and to read the amendments that have been tabled, whoever is able to get to whoever from the banking sector in the Department. This is phenomenal. There is no legislation brought in that can facilitate people who want to go through the Insolvency Service of Ireland. That is not being facilitated in any legislation being pushed through here. However, it will now be ensured in the courts, as has been pointed out, that this bit of paperwork will save the vulture funds from coming in in person, whether the case involves a business, an ordinary person with his or her house or a farmer with land, whereas a middleman, such as Link Asset Services or all these others acting for the big vulture funds, can walk in, and that will do. The piece of paper will cover everything. In fairness to all Members here, they do not have problems with the rest of the legislation. My God, though, as public representatives who deal with this in every county across the country, we have to stand up and be counted.
I know the Minister did not write the legislation.
Some senior civil servant has written this. Someone has got to them from the banking side of things and they must have serious power to be able to do that. Ministers are for making the hard decisions and this is a decision the Minister can make this evening. Nobody asks the Minister to abandon it. We are asking her to park it to one side until it goes through the different procedures, as has been pointed out by the Deputies this evening. That is all I am asking. I do not want to criticise the rest of the Bill and I will not do so, excepting that section. What has happened in this country over the past five, six, seven or eight years is that some of those vulture funds, which every one of us has encountered in representing people, have mowed through the system and this is an opportunity for us. It is not a lot to ask somebody to walk into a court and confirm that it was they themselves who gave the money in question but to rely on a piece of paper means it is there for flouting every day of the week. I ask the Minister to pull that section.
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.
The Minister has heard from many Members on this issue. I plead with her to listen to Deputies who have expressed their concerns about sections 13 and 14, what is becoming known as the vulture fund section of this Bill. People have been fighting these vulture funds in the courts. They thought they had won some sort of security but this will rip that from them. I spoke to somebody today who had a horrific experience with the vulture fundss and fought them tooth and nail. They lied and lied again and we are handing those funds a golden ticket to take people's homes, lands and businesses. We have a chance tonight to listen to those people and to listen to the Deputies who spoke tonight and to take that section of the Bill out and ensure that people are protected.
I refer to section 5(29), which relates to remote meetings that will allow Ministers to designate certain State bodies to hold meetings. I was contacted today by a couple of councillors and their concerns related to remote meetings of local authorities and, most importantly, making decisions remotely. They are concerned about how that will affect them. I was a local councillor myself. Some instances they gave included the local property tax, the county development plan, budgets and other serious matters they make decisions on. They were concerned that if a decision was tight, their Internet connection went down and a vote happened, what then would happen their vote? What recourse would they have? They are really concerned about some of those issues. I am asking for clarification. Is it the case that local authorities are included in that section? If so, could we insert a sunset clause, perhaps for six months or whatever? That would mean we could come back and look at this and see how it is implemented because there are concerns that there will be chief executives of local authorities who would love this legislation to come through, if that is the case.
I thank Deputies for their contributions and their support for the vast majority of what is proposed in this legislation. I appreciate the concerns they raised regarding how quickly the Bill has been introduced and that it required the House to waive the process of pre-legislative scrutiny. I thank colleagues for their forbearance and co-operation in this regard. We have an obligation to keep our judges, jurors, witnesses, our prison population and all of those working in the Courts Service and the Prison Service safe. I refer to the Covid pandemic and the very difficult times we are going through. This Bill is, for the most part, specifically focused on that issue, although there are, as the final speaker identified, a few unrelated provisions.
The measures in the Bill dealing with criminal and civil procedures relate to extending the use of modern technology, which is part of a wider agenda and plan to modernise the way in which our courts and prisons systems operate, and enabling the Judiciary and Courts Service to manage their business better and in a more efficient way. This is extremely important and necessary at this time as we deal with the Covid-19 pandemic.
In the criminal law context, the Bill addresses some historical inefficiencies and practices in regard to the execution of warrants for persons who are already in prison and the huge burden that places on prisons. The measures contained in the Bill deal with issues identified by the Judiciary itself and they have been developed in close consultation with the Judiciary, the Courts Service, the legal profession and the Attorney General. All of the measures relate to necessary improvements to current practices and reflect changes that have been sought for years. These are not measures that were identified only in the past number of weeks or months. They certainly were not developed by vulture funds, banks - I will speak on this in more detail presently - or anybody other than the Judiciary, legal teams, and the Attorney General. They are the people who asked for these measures to be introduced to help them deal with Covid, but the provisions will have far-reaching positive implications as well.
I will outline specifically who has sought some of the particular measures contained in the Bill. The provisions concerning remote hearing of civil proceedings were developed following detailed discussions with the Judiciary and the Courts Service. In the case of e-filing and statements of truth, the need for those provisions was highlighted as part of the external Courts Service organisational capacity review, which was carried out in the context of the Civil Service renewal plan completed in 2018. In regard to the admissibility of business records, the provisions are based on the LRC's recommendations in 2016. They were not included because of a particular case that happened recently and they mirror provisions already contained in the Criminal Evidence Act.
The measures proposed in regard to video links were recommended for some time, including by the working group on efficiency measures in the criminal justice system, which identified the increased use of video links as an important tool in reducing the need to transport prisoners between prisons and the courts. We have already seen an increased use of video links in allowing prisoners to communicate with their families during the Covid lockdown period. That practice was part of the reason there were no cases of Covid-19 in our prisons over the past few months, which is an absolute credit to our Prison Service but also to the prisoners themselves, who have engaged and co-operated with management in implementing those arrangements. The use of technology was vital in this regard, and the importance of technology is recognised in the Bill.
The civil justice medium-term planning group, which included members of the Judiciary and senior officials from the Courts Service and my Department, identified the need to address the lack of capacity for flexibility in the operation of the District Court. These are all extremely important measures and they have all been sought by our senior Judiciary. They are not proposals that have come about only in recent weeks and months. I believe they will address not just the immediate concerns around the Covid-19 pandemic but will also help us in developing an effective plan of modernisation, a piece of work that is currently under way within the Courts Service.
I will now address more specifically some of the issues and concerns that were raised by Deputies. Deputy Martin Kenny argued for the inclusion of a sunset clause in the Bill, as proposed in one of the amendments that has been tabled. I accept his point that in the vast majority of cases where legislation has been introduced to deal with Covid-19, such a clause has been included. In the case of the pandemic unemployment payment and the wage subsidy scheme, provision has been made to extend those measures far beyond 7 November. In the case of this legislation, there is a requirement under Standing Order 164 that I, as Minister, report back to the House within 12 months of its enactment. That requirement gives us a timeline and ensures there is a safeguard in place. I go back to the point that much of what is contained in the Bill has been sought for some time. If we were obliged to review every Bill that is enacted in this House every three months, we would be doing little else for years to come. Particularly where measures have been well thought out and sought for some time, it would be very difficult and would hinder the overall legislative programme to have such a requirement in place.
I thank Deputies for their very positive remarks concerning the coroner service. Deputies Howlin and Harkin had a specific question about the backlog in the service. I do not think we have ever seen anything like what we saw in Dublin, where there was a two-year backlog. That was not acceptable-----
I ask the Acting Chairman to allow me just a couple of minutes more as I have not addressed the most important point in regard to the coroner service. The relevant provisions in the Bill are targeted measures to address an emergency. The overall structure of the service needs a different and more fundamental reform that will ensure additional capacity. It is something I intend to deal with separately from this legislation.
There was a question about the provision in section 23 in regard to pretrial and post-trial hearings. I would like to confirm that this is merely to ensure that we can speed up a process. There are very significant safeguards within the legislation that will ensure nobody's time is taken up-----
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