Seán Power (Kildare South, Fianna Fail)

The content of the Civil Law (Miscellaneous Provisions) Bill demonstrates the variety of areas for which the Department of Justice, Equality and Law Reform has responsibility. These range from courts and court officers legislation to video recordings, censorship of films, parental leave and employment equality. A miscellaneous provisions Bill such as the one before the Seanad is a convenient means of providing for small but important changes to many of the areas of law under the remit of the Department. The changes are essential to ensure we keep the Statute Book updated and effective. It would be possible to introduce individual Bills to deal with each of the 16 Parts of the Civil Law (Miscellaneous Provisions) Bill but to do so could clog the business of the two Houses and would represent counter-productive use of time, especially considering that in some cases there are only one or two amendments being made to the original Acts in question. Combining these changes in a miscellaneous provisions Bill gives the opportunity to make the necessary amendments in an efficient and effective way.

Part 2, which contains 25 sections and makes up roughly one third of the Bill, amends legislation relating to courts and court officers. The proper functioning of our courts system is essential to the administration of justice, and many of the changes proposed provide a means of overcoming practical difficulties that have been or are being encountered by the Courts Service and the Judiciary.

Section 5 deals with the ranking of judges appointed to the courts to ensure their order of seniority is reckoned from the time they are first appointed to a court. This removes the present anomaly whereby a judge returning to the bench following a period of service abroad with the European Court of Justice, for example, would have no account taken in seniority terms of an earlier period on the domestic bench before the service abroad.

The amendment contained in section 6 of the Bill will clarify the meaning of the word "county" for the purposes of the appointment and powers of peace commissioners. It ensures alignment with the most recently designated local authority areas while maintaining the links with geographical areas familiar to most people.

Sections 7 and 8 make clear that regulations made under the European Communities Act 1972 for the implementation of EU directives or regulations can confer functions or impose duties on county registrars and District Court clerks. Section 8 also provides for the temporary reassignment of a District Court clerk at short notice, for example, when required to cover an absent colleague.

Section 9 formally transfers responsibility for the collection of court fees to the now independent Courts Service. This reflects what happens in practice the collection of fees and removes any perceived ambiguity as to who is the Accounting Officer for the Courts Service. The amendment also allows for the operation of the fee-prescribing power with significant flexibility to cater for possible future fund management approaches within the Courts Service. This will ensure the Courts Service can carry out the business of safeguarding and investing the funds for which it is responsible in the most appropriate manner available.

Sections 10, 11 and 12 bring the courts legislation dealing with the pension entitlements of judges who retire on the grounds of age or infirmity into line with the Pensions (Amendment) Act 2002. This change in the statutory provision is being implemented on an administrative basis at present.

Section 13 amends the Eighth Schedule to the Courts (Supplemental Provisions) Act 1961 in two ways. First, it ensures that regulations made under the European Communities Act 1972 may confer functions on the Master of the High Court in the same way as sections 7 and 8 do for county registrars and District Court clerks. Section 13 also alters the qualification requirements for appointment as Registrar of Wards of Court. This change will allow for persons from within the Courts Service generally, rather than only those attached to the superior courts, to be appointed to the post concerned and reduces from 12 to nine years the period of service required. At the same time, in recognition of the need for appropriate expertise on the part of appointees, the Courts Service, with the consent of the President of the High Court, may specify such qualifications to the post as it considers appropriate. Section 27 of the Bill provides that the same changes apply to the appointments as probate officer and examiner.

Section 14 permits personal service of documents by persons other than an official summons server, as an alternative to service by registered post in proceedings in the District and Circuit Courts. This will bring service of documents for these courts into line with procedures for the High and Supreme Courts. The amendment also allows for a degree of future proofing to take account of developments on service of documents in that changes can be catered for by rules of court. Further into the Bill, section 22 provides the same future proofing for service of documents for the High and Supreme Courts.

Sections 15 and 16 extend the functions of the Courts Service. Section 15 does so in a general way to encompass any functions that may be created for the Courts Service by future statutes. The aim of section 16 is to enable the Courts Service to provide support centrally to, and facilitate liaison between, the rules committees of the superior, Circuit and District Courts.

Section 17 will clarify the position on the electronic issuing of summonses, particularly where a summons is issued electronically through an outside controller, such as the Public Sector Broker. This is done by inserting a definition of "electronic means" into section 1 of the Courts (No. 3) Act 1986.

Sections 18, 19 and 20 of the Bill consolidate to the greatest extent possible the provisions relating to the superior courts, Circuit Court and District Court rules committees. These are at present scattered throughout the Statute Book. In addition, section 19 provides for a county registrar from outside Dublin to be nominated to the Circuit Court Rules Committee. This nominated person can change as and when the committee require the expertise of a specific county registrar.

The change being made in section 21 will allow for the authentication of a District Court order or warrant by a District Court judge or a District Court clerk other than the judge or clerk who was present when the order was made. This will not extend to search warrants or an order sending an accused forward for trial. This change is in response to administrative difficulties encountered by the Courts Service in the practicalities of producing and signing such orders while balancing the need, in criminal cases, to ensure that the authenticated order accurately reflects the decision of the District Court judge.

The amendment to the Petty Sessions (Ireland) Act 1851 contained in section 23 of the Bill removes the requirement that District Court judges keep a note of evidence when required to do so. This is no longer done in practice, nor would it be practical to do so given the huge volume of cases before the District Courts. Since any appeal from the District Court is by way of a complete rehearing, the utility of any such note is at best questionable. This amendment follows advice from the Attorney General.

Section 24 of the Bill allows for video-conferencing in civil proceedings as was recommended by the Committee on Video-conferencing. There are already similar provisions in criminal proceedings.

Section 25 provides for the possibility of anonymity in civil cases for certain witnesses, or either party to civil proceedings, who have a medical condition where publicising the fact would cause them undue distress. This amendment follows what is already provided for in respect of criminal proceedings.

The amendment at section 26 will ensure that a blind or partially-sighted lawyer or party to proceedings in need of the assistance of a reader in court will have access to one.

Section 28 amends the Courts and Court Officers Act 1995 to allow for a county registrar to take on additional functions of an equivalent office. This will free up judicial time and should have a positive impact on the timely disposal of a number of matters, not least of which will be family law matters in the Circuit Court.

Section 29 will amend the Civil Liability and Courts Act 2004 in respect of the in camera rule. The change will ease the practical work of those who have been approved for the reporting of family law proceedings under section 40 of that Act.

The final section in Part 2, section 30, provides for an additional three judges of the District Court as part of the Government's strategy to address youth justice issues. This will enable more District Court judges to be available to deal with cases that need to be dealt with under the Children Act 2001.

Part 3 of the Bill deals with some aspects of the legislation regarding solicitors. Sections 32 and 34 arise out of the 2004 Report of the Regulatory Review Task Force. That task force, which was led by Mr. Joe Brosnan, a former Secretary General of the Department of Justice, Equality and Law Reform, conducted a thorough review of the Law Society's own organisation and practices. Most of the recommendations contained in that report have been implemented and did not need legislative change. Those that do require statutory amendments are detailed in sections 32 and 34. Section 32 does away with the current requirement that at least two thirds of the membership of the Law Society's regulatory committees, and their quorum, be members of the Council. In addition, it provides that a majority of the members of the regulatory committee, which deals with the investigation by the society of complaints against its members, should be persons who are not members of the Council. Section 34 provides for the Law Society to be able, on foot of a complaint of inadequate service being upheld, to award compensation to the complainant up to a maximum of €3,000, with provision for indexation of that maximum.

The additional three amendments to the Solicitor Acts provide for a number of matters. In section 31 the minimum length of time a solicitor needs to have been fully qualified and practising before taking on a trainee is reduced from five to four years. Section 33 will ensure there is no doubt that a solicitor who retires from active practice, in good standing, during his or her five year term as a member of the disciplinary tribunal, can complete his or her term on the tribunal without having to hold a practising certificate following his or her retirement. Section 35 gives the Law Society the power to invoke the High Court in order to enforce an order of the Solicitors Disciplinary Tribunal.

Part 4 amends the Landlord and Tenant (Amendment) Act of 1980 in a way that has significance for many business tenants. The change being made by sections 36 and 37 will enable parties to any business tenancy to contract out of the provisions of Part II of the 1980 Act which covers the right to a new tenancy. This opt-out is subject to the tenant having received independent legal advice. The opt-out is currently available to some business tenants, but only where the premises are let as office accommodation. This proposal will extend it to all classes of business tenancies. The law as it currently stands provides that, where a business tenant has held a lease for a continuous period of five years, that gives the tenant an automatic entitlement to renew the lease for a further period of 20 years. One of the effects this can have on the market in business leaseholds is that landlords may be unwilling to grant leases for more than, say, four years and nine months, to avoid committing their properties to longer-lasting tenancies. The difficulties that a lease of this length present to a business which in that time has successfully established itself are obvious. The changes being made by these sections will ease those difficulties for tenants whose leases expire after this Bill's commencement and who, having taken legal advice as required by the amendment, have reassured themselves that the opt-out is suitable for them.

Part 5 deals with what can be described as international aspects of statutory declarations. Section 38 makes an amendment to the section of the Statutory Declarations Act 1938 which deals with signing and attestation of statutory declarations. The change will allow for additional means of identification of a person making a statutory declaration. This is to take account of the fact that, increasingly, foreign nationals who are here to do business or as workers need to transact legal or other business that may involve the making of a statutory declaration. At present, the Act requires that the person making the declaration be either personally known to the witness before whom the declaration is being made or is identified to the witness by someone personally known. This has created great difficulties for foreign nationals who might have a need to make a statutory declaration but who cannot produce to the notary anyone in Ireland who could identify them otherwise than by passport or other suitable means of identification. The proposed change will allow for the notary to accept a passport, identity card or other similar document as proof of identity. It will not abolish the concept of personal knowledge or identification of the declarant but rather will add an additional means of identification. Section 41 amends the form in the Schedule to the 1938 Act to take account of these changes.

Section 39 offers a number of alternative ways for people abroad to make a statutory declaration. The preceding amendment will have the effect of making it easier for a foreign national to make a statutory declaration in Ireland and this amendment should make it easier for an Irish person who is abroad to make such a declaration. Currently, the declarant must make the declaration before an Irish diplomatic or consular office in an Irish embassy or consular mission. While this means of making such a declaration will continue, new means of making declarations are being introduced in recognition of the difficulties encountered by persons given the restrictive nature of the current regime. These new alternatives include making a statutory declaration before a person qualified under section 1 of the Act, namely, a notary public, a commissioner for oaths, a peace commissioner or a person authorised by law to take and receive statutory declarations. The amendment also makes it possible to use whatever the local equivalent process may be to the solemn business of making a statutory declaration as it exists under Irish law. These changes are modelled on provisions introduced by the Investment Funds, Companies and Miscellaneous Provisions Act 2006 which introduced a number of ways for the making of statutory declarations abroad for the purposes of the Companies Acts. The amendments in this legislation will do the same for the making of statutory declarations abroad for any other purpose of Irish law.

Along with these international dimensions of the statutory declaration process, section 40 has been introduced on foot of a request from the Standards in Public Office Commission that the period in which summary proceedings may be commenced for the making of a false declaration should be extended to 12 months from the time the offence was committed or six months from the date that evidence of the offence being committed comes to light.

The final section in this Part of the Bill amends the Standards in Public Office Act 2001 by extending the period in which an applicant for judicial office can produce a tax affairs statutory declaration from one to three months. This is on foot of a recommendation made by the Judicial Appointments Advisory Board to overcome administrative difficulties to which the current short timeframe is giving rise.

Part 6 contains a series of amendments to legislation covering jury service. The first three of these amendments at sections 43 to 45, inclusive, will make changes to the summoning and reporting arrangements for jurors. The changes will allow a county registrar to draw up panels of prospective jurors for more than one court if needed rather than drawing up panels of jurors for each court separately. This change is of particular relevance in light of the recently introduced practice of the Central Criminal Court sitting outside Dublin and the plans for the new criminal courts complex in Dublin which will be a multi-jurisdictional venue. These amendments also will provide the possibility for jurors to be summoned on their initial attendance and on subsequent days as directed to a reception area separate from the actual courtroom itself. They also will make it possible for a member of staff other than the registrar or officer acting as registrar to certify failure by a person to attend for jury service. This change will allow greater efficiency in the deployment of staff in the process of summoning a jury.

Section 46 will amend the provision of the Juries Act 1976 that deals with the separation of juries during a trial. Currently, where a jury has retired to consider its verdict but has not reached one by evening, it is sequestered overnight. The changes being made will allow for a jury, if so directed by the trial judge, to separate at any time prior to or after retirement for such periods as the judge allows.

Sections 47 to 50, inclusive, increase the maximum fines for the offences of failing to attend for jury service, giving false statement by or on behalf of a juror, service by an ineligible or disqualified person and refusal to be sworn as a juror.

Section 51 changes the nature of the language used in the First Schedule to the Juries Act 1976. That Schedule sets out the classes of persons who are ineligible for jury service. This includes a sub-heading for "incapable persons" and refers to people, including specifically deaf persons, as unfit to serve on a jury. The new wording removes the language that would be regarded today as unacceptable. Instead, the new wording makes no specific reference to a particular disability but rather refers to non-specific, enduring infirmity which renders it impracticable for persons to perform a juror's duties.

Part 7, comprising sections 52 and 53, amends the Bankruptcy Act 1988 in two ways. The first ensures only persons who have formally proved through the Bankruptcy Court will have a say in what happens in a bankruptcy. The Office of the Official Assignee recommended this amendment to ensure there is no doubt as to the intention of the Act. The other amendment is a procedural one to provide for the deadline for filing the statement of affairs by the arranging debtor in a way that gives more certainty in calculating the deadline and that increases the period of notice from two to seven days.

Part 8 makes two changes to the Succession Act 1965. Section 54 deletes the words "in good faith" from the definition of "purchaser". This is on foot of a conclusion in the Law Reform Commission's report on land law and conveyancing law in 2003 to the effect that the inclusion of these words has had the unintended meaning of requiring the purchaser to make all reasonable enquiries when buying from a personal representative of a deceased owner of a property.

The other amendment to the Succession Act, at section 53, addresses the situation where two people die, or are presumed by law to die, simultaneously. The change will address in an equitable manner the disposal of property held by such people in a joint tenancy, such as a dwelling house owned by a husband and wife who both die in an accident. Currently, if one joint tenant dies, his or her share passes automatically to the surviving joint tenants and does not form part of the estate of the deceased. Ultimately, the last survivor of the two or more tenants will be the sole owner of the property. The sequence of deaths is crucial in determining the question of devolution in those cases. If all the joint tenants of a property are deemed to have died at the same time, the right of survivorship cannot under present law operate in the usual manner. This amendment provides that in such situations, the joint tenancy will on their deaths become a tenancy in common in equal shares and that the equal shares will form part of the estate of the deceased in each case.

The amendments contained in Part 9, section 56, will make a number of changes to the Video Recordings Act 1989. The change in paragraph (a) of the section will allow the censor to refuse to grant a certificate to a film released on video even if it has been previously certified for cinema release. This is not possible at present but is required because video release films are more widely available and access to them is more difficult to control than in the case of films under controlled release in a cinema environment. This change also will provide clarity in respect of the obligations on an applicant when submitting a video recording to the film censor for classification.

Paragraph (b) of section 56 introduces a new classification of video works, namely persons aged 12 years or more. In addition, the current law contains a power to vary the list of classes of video works by regulations but in light of the advice of the Attorney General having regard to recent jurisprudence, the opportunity is being taken to remove from the 1989 Act the power to vary the primary statute by statutory instrument.

The offence of supplying a video work to persons who have not reached the relevant age, together with its associated penalties, is being created under paragraph (c). Paragraphs (d) through to (p) increase the penalties set out for other offences in the Act. They will be increased to a level more appropriate for offences of this nature.

Paragraph (q) of this section provides for the Minister for Justice, Equality and Law Reform to set a reduced fee for the censor to apply to videos which he or she deems falls into one of two categories, namely, a film that is likely to appeal only to a limited audience or a film which is being distributed for charitable purposes. The current general release certification can make it uneconomical to release these movies. A technical provision is being inserted into the Act by means of paragraph (r) to ensure the income generated from fees fully meets the costs associated with the operation of classifying and certifying video works.

Part 10 contains amendments in respect of the censorship of films. Section 57 amends the Censorship of Films Act 1923 by increasing the fines for showing a picture in public without a licence and for non-compliance with the special conditions laid down in the granting of a limited certificate. The amounts set in statute have not been increased since the legislation was enacted in 1923 and are now sufficiently low so as not to be a deterrent. This section also introduces a new reason for the censor to refuse to grant a certificate, or to grant a limited certificate, to a film to be exhibited in public. The additional reason is that the film is "likely to cause harm to children".

Section 57 provides for the title of the Office of the Official Censor of Films, established by the 1923 Act, to be re-titled the "Irish Film Classification Office". It is clear from the process and work of the film censor that classification of films is a more accurate description of the role undertaken by that office. Subsequently the amendment provides for the official censor of films to be known as the director of film classification, the Censorship of Films Appeal Board to become the Classification of Films Appeal Board and assistant censors to be known as assistant classifiers.

Section 59, which constitutes Part 11 of the Bill, provides for parents employed by the same employer to transfer all or part of their parental leave to the other relevant parent, subject to the employer's agreement. This amendment achieves what was the intention behind, and what was thought to have been achieved by, an amendment to the Parental Leave Act 1998 made in 2006. The 2006 amendment was discovered subsequently to have been ineffective in achieving the aim that had been sought by its proponents and accepted by the Government.

Part 12, section 60, removes an anomaly as between civil servants serving in an ordinary Department and those serving as civilian staff in the Garda Síochána. Civil servants may be disciplined and dismissed by the relevant "appropriate authority". In the case of officers below the rank of principal officer this is usually the Secretary General of the relevant Department. In the case of officers at or above the rank of principal officer, it is the relevant Minister. However the Garda Síochána Act 2005 appointed the Garda Commissioner as the appropriate authority for all civil servants and did not provide the standard two-tiered system for civil servants in the Garda Síochána. Thus any civil servant, irrespective of rank, who is assigned to the Garda Síochána may be disciplined and dismissed by the Commissioner. The change at section 60 makes the Minister for Justice, Equality and Law Reform the "appropriate authority" for the disciplining or dismissal of principal officers and higher ranks assigned to the Garda Commissioner, thus keeping such arrangements in line with all other civil servants.

The two amendments in respect of family law which make up Part 13 of the Bill, sections 55 and 56, amend provisions in the Family Law Act 1995 and the Family Law (Divorce) Act 1996. The changes relate to the registration of property adjustment orders and the limitation period for challenging transfers or conveyances of property. The two amendments each insert a subsection into the respective Acts which will have the effect of ensuring that where a property adjustment order has been complied with, the Property Registration Authority will cancel the entry made in the register or note the compliance with the property adjustment order in the Registry of Deeds, as appropriate. These amendments also introduce a six-year limitation period during which time a non-owning spouse may challenge a transfer or conveyance. This provision will provide more certainty for a purchaser of a property against which there was a property adjustment order.

Section 63, or Part 14, deals with an amendment to the Equal Status Act 2000. The proposed amendment is required to complete the transposition into domestic law of Council Directive 2004/113/EC of 13 December 2004 on gender non-employment. This implements the principle of equal treatment between men and women in the access to and supply of goods and services. Most of the provisions of this directive are already reflected in the Equal Status Act. The amendment necessary for the final transposition is relatively minor and technical in nature. In addition, the amendment provides for a permitted derogation in respect of health insurance traded internationally, where gender differentiation is allowed under the law of the country in which the product is to be sold. This will allow for Irish companies trading abroad to be governed by the local regulations for the purpose of selling health insurance in that country. This again is essentially a minor technical amendment which maintains the status quo and according to legal advice is compatible with the goods and services directive.

Part 15, which covers changes to the legislation dealing with civil legal aid, deals with a number of important issues. Section 64 provides for the accountability of the chief executive officer of the Legal Aid Board to the Committee of Public Accounts and to other Oireachtas committees. At present the Secretaries General of all Departments and heads of statutory bodies are held accountable before the Committee of Public Accounts and the Oireachtas committees. However, in the case of the Legal Aid Board, an independent statutory body, the Secretary General of the Department of Justice, Equality and Law Reform appears before these committees on behalf of the board. This amendment provides that the chief executive officer of the board will now appear before the said committees to report on the accounts and administration of the board.

Sections 65 and 66 make the exclusions on the provision of legal advice subject to the same qualifications as for legal aid in property matters. As the Act stands the scope of legal advice is more limited than the scope of legal aid. It is highly unlikely that this was the intention at the time of drafting. In addition, the amendment will allow for the Legal Aid Board to provide legal advice, free of charge and without a means test, in rape and sexual assault cases. The final part of this amendment will provide for legal advice and legal aid to be given to tenants involved in disputes before the courts under the Residential Tenancies Act 2004. The provisions of the Civil Legal Aid Act 1995, as they stand, exclude not only disputes about the ownership of land and property as was intended, but also disputes between tenants and landlords under the Residential Tenancies Act 2004. This amendment will ensure consistency for tenants in the treatment they receive under the Legal Aid Act. This will be done without creating an entitlement to legal representation before the Private Residential Tenancies Board itself. The firm policy position remains not to extend the civil legal aid scheme to tribunals or quasi-judicial bodies of this nature.

Section 67 makes two provisions in respect of the waiving of the contribution payable for legal aid. First, it gives additional discretion to the board in respect of waiving the contribution. Currently the Act only allows the contribution to be waived if it is the minimum amount payable. The proposed change will also permit the board to waive the contribution in circumstances where more than the minimum fee is payable. Second, it clarifies the criteria that the board should have regard to in waiving contributions in respect of legal aid or advice.

Section 68 allows for the Legal Aid Board to issue proceedings in the name of the law centre rather than, as at present, in the name of the individual solicitor who is dealing with the case. Administratively this change will not only bring the law centres into line with private practices but will also have the benefit of easing the workload within the law centres as the professional staff will not necessarily be required to see and sign all legal documents. In addition it will not be necessary to file notices of change of solicitor with the courts when one solicitor leaves a law centre and is replaced by another.

Sections 69 and 70 make up the final part of the Bill, Part 16, and deal with the number of persons appointed to the Employment Authority and consequently the numbers required for a quorum at meetings of the authority. These amendments are necessary for the efficient functioning of the authority given the increase in its workload in recent years and to ensure fair representation of all the stakeholders, particularly those at risk of discrimination.

That is the Bill as passed by Dáil Éireann on 27 February. Senators will appreciate that the changes contained in the Bill are necessary for a number of reasons, including ensuring the effective and efficient implementation of legislation, updating provisions in respect of penalties to ensure there is sufficient deterrent and in some cases creating new offences in areas such as film and video censorship. Other amendments while more technical or administrative in nature are nonetheless necessary to ensure we keep our legislation updated, clear and accessible. In addition to the provisions of the Bill as presented to the Seanad today, a number of proposals have been prepared which may be introduced on Committee Stage if necessary and should be included in the Bill. One of the amendments it is intended to introduce would allow the President of the District Court to sanction a number of District Court judges, who on an ongoing basis would be authorised to sign warrants and orders outside normal hours. This would avoid the possibility of a situation where the president is unable, due to unforeseen circumstances, to authorise a District Court judge on a case-by-case basis to sign a warrant out of hours, which is the current situation. It is also planned to include a technical amendment to both the Road Transport Act 1986 and the Road Safety Authority Act 2006 to enable the Road Safety Authority to appoint its own officers and officers of the Minister for Transport on secondment to the authority, to be transport officers for the purposes of road transport operations. The opportunity to promote the change on behalf of the Minister for Transport is being taken in this Bill. There also may be two additional technical amendments in relation to the legislation governing solicitors.

Finally, consideration is being given to a proposal to amend the age limit provisions in respect of which persons are ineligible for service on a jury. The law as it currently stands excludes persons over the age of 70 years from being eligible to serve on a jury with a right of excusal from the age of 65 to 70. The increasing role and contribution of older people in society combined with the fact that the mandatory retirement age has been raised, make it seem unnecessarily restrictive to have a blanket exclusion on persons over the age of 70 from serving on a jury.

In conclusion, I remind the House that the Bill is a reflection of the Government's commitment to quality regulation. It epitomises that commitment, tackling a wide range of areas where change in the law is necessary or desirable in the interest of improving how the law operates, removing unnecessary obstacles and ensuring clarity. I trust the Bill will receive the full support of the House.