Frank Fahey (Galway West, Fianna Fail)

Senators raised this issue on Committee Stage and the Minister indicated then that the subsection Senators wish to delete is an important provision permitting the courts to refuse to grant measures where they do not have jurisdiction. It is a provision that has featured previously in legislation dealing with orders. As has been previously indicated, the same wording may be found in a civil proceedings context at section 13(2) of the Jurisdiction of Courts and Enforcement of Judgments Act of 1998. I do not propose to accept this amendment as this provision is not only a useful but an essential one. It directs the court to have regard as to whether the order being sought by virtue of the jurisdiction it has is a reasonable order to make. It is important that the court has that ability as orders can be sought by the Minister or the Garda and it is not sufficient to presume that the making of the application in itself constitutes an adequate examination of the powers of the court in this regard. The presiding judge is the only person capable of making a decision as to the extent of the legal powers he or she has with regard to any application.

I appreciate that the wording of this particular provision is a little unwieldy and the possibility of rewording it was examined. However, the wording as it currently stands in section 83 follows on from the Jurisdiction of Courts and Enforcement of Judgments Act of 1998. The advice from the Attorney General's office is that it would be inadvisable to break from precedent in this instance and a redrafting could have the effect of omissions by means of inadvertence. For the reasons outlined, therefore, I cannot accept the proposed amendment.