Wednesday, 9 April 2008
Civil Law (Miscellaneous Provisions) Bill 2006: Second Stage
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.
I thank the Minister for his comprehensive outline of the Bill. It has been a long time in production and was promised by the last Government before the general election. The Bill tidies a number of legislative measures and includes some significant innovations. In general, however, many of the changes are technical and raise no particular difficulties. The most significant is probably the provision regarding the legal service ombudsman which, given concern about the regulation of the profession, is important in terms of assuring the public that the profession is working to the highest standards.
There was a significant debate on this Bill in the Lower House and many of the amendments and suggestions made on Committee and Report Stages are reflected in it. My colleagues will wish to raise a number of issues but I wish to raise one in particular, on which I will reserve my position in terms of amendments. Section 67 deals with legal aid. The Minister indicated that the provision clarifies the situation of the Legal Aid Board, but does this amendment narrow the cases where a waiver or reduction in contribution will apply in cases of severe hardship? The definition of severe hardship is not included in the Bill. With regard to legal aid, FLAC has brought judicial review proceedings regarding the ability of the Legal Aid Board to grant legal aid. What is the background to this amendment in the Bill? I would be grateful if the Minister would elaborate on it. It is a matter on which I will reserve my position in terms of making an amendment.
That is the only specific issue I wish to raise. In general, I welcome the Bill. It is an important tidying measure.
It is the Senator's prerogative. Given that we are dealing with the legal profession in this Bill, I congratulate our Taoiseach-in-waiting and Leader of Fianna Fáil who is a member of that profession. It is probably a great honour for the profession that Deputy Brian Cowen is in this position. I wish him the best of luck. If he has as much success as the outgoing Taoiseach, we are in for a long period of prosperity and peace on this island.
I welcome the Bill, which is important, tidying legislation, and I welcome the Minister of State, Deputy Seán Power. The last Government and Minister for Justice, Equality and Law Reform gave a commitment that a statute would be introduced to consolidate all the legal measures in criminal and civil law, some of which date from the Magna Carta. The aim was to have one over-riding statute in criminal and civil law to encompass all those measures. This has been considered for many years but for legislators, legal practitioners and the general public it is something that could be done in the lifetime of this Government. It is a huge challenge but is worth pursuing.
The most significant change in the Bill is the provision regarding the legal services ombudsman. This is a new position and I welcome it. The ombudsman will oversee complaints against barristers and solicitors. I have been a practising solicitor for almost 30 years and I wish to put on record my absolute confidence in how the Law Society — I cannot speak for the Bar Council — has dealt with complaints in general. Recent incidents which are, thankfully, the exception rather than the rule have brought a new focus on solicitors and the legal profession. There have been three headline cases in the past six months. It is right and fitting that such acts of impropriety or wrongdoing should be fully and vigorously pursued.
One should, however, consider the overall position. Since I qualified as a solicitor in the late 1970s the number of solicitors has quadrupled while the amount of business has multiplied twenty-fold. However, the number of complaints against solicitors is less than 0.01%. Of those, approximately 85% are without foundation and are spurious and vexatious. Nevertheless, it is important to ensure there is transparency and clarity in these matters. When one considers the overall situation with regard to complaints and scrutiny of the profession it is important to examine all angles. It is not good enough to have inadequate services, charge excessive fees or, worst of all, have misconduct by solicitors. However, I believe complaints to the Law Society get a fair hearing. We see the headline cases where people get away with serious misconduct but, in my experience, many solicitors have been chastised, penalised and, in some instances, they have been struck off the Roll of Solicitors. It should be put on the record that the Law Society has acted fairly. As in any other area, nobody is beyond reproach and there is no perfect solution. There will never be a utopia in any profession where there is no wrongdoing, but we always strive towards it.
Another old hobby horse of mine is that I have always advocated that there be a permanent High Court judge sitting in Cork. The old courthouse was revamped at a cost of many millions of euro and is wonderful. When practising as a solicitor before entering full-time political life, my experience has been that when High Court or civil matters bring expert witnesses from Dingle or Bantry to Dublin, whether they be gardaí, medical consultants, engineers or other experts, it clogs up the system and causes delays. While the High Court goes on circuit to places such as Limerick and Cork, each region, such as Galway and Cork especially due to the volume of population in the Cork-Kerry area, should have a permanent High Court judge. I ask the Minister of State to consider that.
A number of practical changes have been made in this legislation and I would like to mention the provision on statutory declarations, which I welcome. In the context of global commerce, people from China, Japan, South America or Canada, for example, come to business or technology parks in places such as west Cork, Galway or Mayo and stay for two or three days to do business. In such situations something must be declared under the Statutory Declarations Act. According to the old affirmation in the statutory declaration one must know the person to sign a declaration. The Bill introduces a practical change in that the provision of a passport would be acceptable as reasonable evidence of a person's identity. In some instances a valid driving licence might be acceptable.
I recently had a discussion with some business people on the right to contract out in landlord-tenant situations, and this is an important provision in the Bill. It was the bane of solicitors' lives in many areas when, in the not too distant past, a lease was confined to two years and 11 months. That was extended to four years and 11 months, beyond which one got what was then known as a business equity and could compel one's landlord to enter a 35-year lease. This has not worked in many practical areas. I am glad to say this Bill inserts a provision that both parties, especially the tenant, can contract out of this situation in the lease providing he or she obtains independent legal advice. That is very important. I know of several situations in my constituency where a tenant such as a hairdresser, solicitor or accountant has a lease on a premises and has to watch the clock ticking up to four years and 11 months because if it goes beyond five years, the matter usually ends up in court. It is a prudent provision that in future one can insert a clause at the outset saying one is fully aware of one's rights and obligations but accepts a clause that if one stays beyond the four years 11 months period, one will not force the landlord into a 35-year lease by going to court. That is practical, makes sense and I welcome it in particular.
There is an interesting provision in this Bill for changes to the Succession Act. From time to time it happens that a married or cohabiting couple in this joint situation are killed, for example, in a road traffic accident. I ask the Minister of State to explain the change a little more if possible and what it is intended to achieve. I am a bit confused and unsure on this issue and would like greater clarity on it.
The Bill is welcome. There are many other aspects of it that bring change. I recognise that I was pursuing the lines of the legal services ombudsman during Dáil debates and I want to clarify that. The issue will be examined again and rightly so. Whatever complaints procedure we have, whether the Bar Council or the Law Society of Ireland, it is important there is greater input from civil people, not from the profession, and that there is an ombudsman to oversee complaints in the event of a person being unsatisfied. There is always the question of who judges the judges. The legal profession, whether barristers or solicitors, is not above the law, and should not be. I welcome and support the Bill in so far as I have read and studied it.
I am not at all fit. The Minister of State is correct and I thank him for his concern. I promise to do better and during the week I am going to inspect the fitness room. Enough of my immediate personal circumstances.
I want to address the personal circumstances of some of the even more afflicted members of our community. I want to address one specific element only because this is a rag bag of a Bill drawing together many miscellaneous provisions. I want to strike the question of free legal aid services, the amendment that is being introduced under this legislation and the context in which it has taken place. The water has been muddied by information emanating from the Minister's Department, in particular an article in The Sunday Times which I regard, since its acquisition by Mr. Rupert Murdoch, as a disreputable newspaper. The Sunday Times of 6 April carried an article which referred to an unpublished piece of research by a reputable group, Indecon. This research purports to examine the number of people qualifying for legal aid and the circumstances. It stated, and this provides the context for this debate, that under the existing provisions, 70% of the Irish population would qualify for legal aid. This is seen as excessive but I do not think it is. Where we are happy to give education more or less free of charge to everyone with no means test, I see no reason legal aid should not be as widely accessible as possible because costs in the law courts are enormous and are way beyond the means of a large number of people.
An unnamed spokesperson for the Legal Aid Board was quoted in the article as saying although the report needed to be validated, the members of the board were perfectly happy with Indecon's work. It is curious that they can be happy without validating the report. They applied legal aid thresholds to a broad spectrum of statistical information from across Europe and applied them specifically to Irish incomes and living conditions. However, no other information was given about the parameters of this research. The Free Legal Advice Centres applied for further information and were told the board was not in a position to express definitive views on the outcome. When they asked when this material could be made available they were told it was not clear. It was a kind of holding operation and they were put at arm's length. The same article points out that waiting times for February, just a month or so ago, confirms that five law centres have waiting lists of five months or more, including seven months in Wexford.
There was a case in the High Court, O'Donoghue v. the Legal Aid Board, the Minister for Justice, Equality and Law Reform and the Attorney General during which Mr. Justice J. Kelly said, with regard to the question of a reasonable waiting time, that whereas one could not compare it directly to what one would get if one acquired the services of a solicitor in the open market, it should be possible to reduce waiting times to a much more reasonable figure. He felt that the target of two to four months was applicable.
In that context, I wish to look at a specific amendment of section 29 (2) of the Civil Legal Aid Act 1995, which at the moment reads:
The Board may, in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources and may waive any contribution payable pursuant to this section and to any other regulations under section 37 or may accept a lower contribution.
That is as it stands at the moment. What is proposed under the Bill is an interesting change, whereby this provision is split into two parts — (a) and (b) — which is sinister. The proposed change is as follows:
The Board may—
(a) in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources,
(b) waive any contribution payable pursuant to this section and to any other regulations under section 37, or accept a lower contribution, on the ground that a failure to do so would cause severe hardship to the applicant.
This introduces a very severe test and I do not think it is appropriate. It is being done because the Government is afraid that too many citizens will avail of this right, which is a basic one. It is miserly, penny pinching and unjust to introduce any such amendment and I will be opposing it when it comes before the House. I will table an amendment to this provision and will vote against it as it stands.
The Minister claims he is doing this because confusion has arisen due to the implementing regulations and he is attacking them. However, if the regulations are at fault, why does the Government not amend them? Why is it amending the primary legislation? That is a kind of conjuring trick and I do not like it. I remain to be convinced on this matter.
The situation at present is disastrous. The Free Legal Advice Centres have advised me that they believe the lengthy interpretation given in the other House is incorrect because the regulations do not limit the circumstances where the fees can be waived to those where only the minimum fee was payable. In specific terms, regulation 21(1) states:
The contributions, including the maximum income and capital contributions payable by a person in receipt of legal aid or advice under this Part, may be varied or waived having regard to sections 24, 25, 26, 27, 28 and 29 of the Act of 1995 and these Regulations.
The maximum income contribution, which is mentioned, refers to the maximum amount that a person may be asked to pay. A person must have a disposable income of €18,000 or less. Mercifully, the capital aspect of the enjoyment of a private home has been removed since August 2006. However, the existing legislation does not introduce the idea of "severe hardship". I ask the Minister of State to tell us what is meant by the term "severe hardship". Who decides on this? There is no definition of severe hardship available. People may in fact be in severe hardship in ways that are concealed. For example, a person may technically have a disposable income of €18,000 but may have binding financial commitments. People get into debt on their credit cards or they may have loan repayments which they are required to make, which can substantially reduce their income. Therefore, this stipulation regarding a disposable income of €18,000 does not amount to a real income test. What happens if €8,000 or €9,000 of that total must be paid out for mortgage or other such commitments?
I wish to put on the record what I see as the penny pinching aspect of this Bill. A person in receipt of legal representation who has a disposable income of over €11,500 is obliged to pay one quarter of the difference between €11,500 and the maximum disposable income of €18,000, plus the minimum contribution of €50. The contribution could, therefore, run from €1,000 up to €1,675, which is an enormous amount of money. It may seem nothing to us because, thank God, Members in this House are now in receipt of very considerable remuneration. However, to the average person in poor circumstances, with debt repayments to be made, it is a severe test.
The Minister said that confusion has arisen because implementing the regulations of 1996 purported to limit the applicability of the provisions enacted by the Oireachtas. It does not. That is wrong. Furthermore, if this was the Minister's main purpose, why, as I said earlier, does he not examine the regulations? I ask the Minister to review the situation because rather than broadening the access of ordinary citizens to legal aid, this provision will substantially narrow access by introducing an unclear, vague test of "severe hardship", which is wrong, unjust and unfair. I ask the Minister to withdraw the amendment.
I am not sure how long my speech will take because I have been thrown slightly by the fact that the legal ombudsman provisions are now in a separate Bill. In that context, if I have time remaining, I wish to share it with Senator Walsh, with the agreement of the House.
As several speakers have said, the Bill is a tidying-up exercise. I do not wish to repeat the changes contained therein for the sake of it. However, I have a number of concerns which I wish to raise. In particular, I am concerned about the legal aid situation, to which Senator Norris has just referred. He has made some very valid points and this is an opportunity to examine the legal aid system in its totality. Perhaps an overhaul of the system is required.
As a legal practitioner and a politician, I would consider myself to have a community of interests in this regard, as opposed to any interest that must be explicitly stated. I find in practice that a lot of my time is given up to giving free legal advice. The waiting list in my home town of Wexford is in an appalling state. Something must be done.
The area of family law clogs up the civil legal aid system to such an extent that it puts pressure on the Legal Aid Board itself, thus adding to the waiting lists that are already in existence. We must examine the possibility of setting up a new system of free legal aid and civil legal aid for the victims of family disputes. While I do not want to prejudge any particular situation, it is often the case that women are impoverished and do not have the means to go to a solicitor, are afraid to do so or do not have the education to realise that they can. With a legal aid system that has waiting lists of between seven months and a year, we are adding to the impoverishment, hardship and possible domestic violence being suffered by such women. That can happen to men too and I am not being exclusive in this regard. However, we must grasp this issue on Committee Stage and examine the civil legal aid system more closely.
The content of the Bill is fine in itself but it is adding to, rather than subtracting from, the problem. I am seriously concerned about the means test. There should be a simple means test for everything in the social welfare system, which should then be incorporated into the civil legal aid test.
The provision that allows the Legal Aid Board to bring a case in its name rather than in the name of the solicitor is a welcome change. However, the nettle must be grasped because the position is worsening. Unfortunately, marriages are breaking down at a more rapid rate than ever before and this is adding to waiting lists. This issue must be examined and I agree with much of what Senator Norris said in that regard.
Reference has been made to the legal profession. We are all too well aware of the dangers of leaving any profession to its own devices and most solicitors and barristers welcome changes in this regard and the higher scrutiny and standard required.
I refer to the issue of the landlord and tenant opt-out clause. Currently, when leases expire after four years and nine months, tenants whose businesses are doing well must move somewhere else because the landlord is reticent to grant a 35-year lease and, therefore, requires vacant possession of the building. Sometimes the tenant might not realise he or she should seek an opt-out clause at the commencement of a lease as opposed to at its expiration. Perhaps more clarity is needed. Will the opt-out be provided only at the commencement of the lease or can it be considered at the conclusion of the initial lease? This would give additional protection to the tenant.
The proposed amendments to the Succession Act will be equitable. Where two joint owners or spouses are deemed to die at the same time, it is equitable that their equal share should go to the estate of the other.
Parental leave is covered by a small section in the legislation but I was disappointed because it does not address paternity leave. This Bill is the perfect vehicle to introduce paternity leave. There is no point in providing that one parent can transfer his or her leave to the other parent because that will mean the woman will have more days to take care of the children, allowing the man off the hook. Until we move to a position where paternity leave is paid, equality will not be achieved. I sometimes wonder whether we want that. Clearly, the European Union and others need to get their act together to introduce proper, paid paternity leave.
Civil law matters relating to single fathers, automatic guardianship and an amendment to the birth registration legislation could be addressed in this Bill. The minor amendments to family law in respect of property adjustment are fine. While this is more a property registration issue than a family law issue, I query the provision whereby a non-owning spouse will be permitted to challenge within six years because that will create more uncertainty in finalising the family law issues. It may provide certainty for the purchaser of a property but the lacuna in the family law system must be examined. Consultation with family law practitioners in this regard would be good and perhaps the Joint Committee on Justice, Equality, Defence and Women's Rights could examine this.
The Minister of State referred to the Road Safety Authority. Section 60 of the Civil Liability Act provides immunity from prosecution to local authorities in respect of road accidents and negligence for the way the roads are built and so on. This issue should be examined because it requires amendment. Somebody should be liable for poorly constructed roads or negligence in respect of a basic matter such as repairing a pothole. This is good legislation and, subject to the matters I have raised, I have no difficulty commending it to the House.
I thank Senator McDonald for sharing time and I promise reciprocity at the first opportunity. I welcome the removal of the legal services ombudsman provisions from the Bill, as they will be considered in separate legislation, because both solicitors and barristers should be governed by independent bodies and I hope the Department will give consideration to this. Self-regulation does not work effectively in most cases. We are told there is an oversupply of barristers, yet they defy all the laws of logic whereby supply and demand, which is generally good for competition, is totally devoid of any influence in the Bar Council. It looks as if a cartel is operating to maintain fees at exorbitant levels. In the interest of the ordinary person and if we value ourselves as a republic, people must have equal opportunity to access the law. We are getting to the stage where only the rich can afford to do that and that is unacceptable.
I am amazed that two chairmen of our most prominent tribunals assumed the role of shop steward on behalf of the barristers working in them in order that their fees would remain at almost €2,500 per day. That is scandalous but it also reflects on us in these Houses that we allowed that to happen and we allow it to continue, despite the former Minister for Finance, Charlie McCreevy, setting out his stall to reduce fees by more than half. That has not happened and it is unhealthy and unacceptable.
Section 23 provides that district justices will not have to keep a note of the evidence presented to them. I understand the practicality of this provision in that an appeal to a superior court does not refer to those notes but will that give rise to lesser accountability at District Court level? I hope legislation will be introduced soon to establish the judicial council that has been promised for some time. The remarks of a number of judges in court in respect of witnesses and gardaí on occasion have been outlandish and totally unacceptable. There was no excuse for a number of the remarks, as they denigrated witnesses who endeavoured to give evidence. Specific judges, who are easily identifiable, will do their best to embarrass gardaí who are doing their duty on behalf of the State. We need to be much more proactive in this area. Any body in society should be subject to independent control, particularly the Judiciary and the legal profession, and competition must be injected into the latter.
I welcome the provision of video-conferencing under section 24 and the amendment to business leases. It is impractical to limit business owners to leases of four years and nine months and it has created many difficulties for both landlords and tenants. Eminently sensible provisions have been inserted in the legislation.
I do not agree with the provisions on the standards in public office. They are not necessary for a member of the Judiciary. A chairman of one of the tribunals had tax difficulties. It is none of my business whether he had or whether his tax affairs are in order. The Revenue Commissioners are there and I do not think anybody would argue the Revenue Commissioners do not have adequate powers and penalties to pursue people in default of taxes. We should not have additional provisions in this Bill. It puts the status of tax compliance almost as a virtue above all others. People can be guilty of other far more serious offences about which they do not need to make statutory declarations. The same applies to ourselves. It is much more important in the appointment or election of people to specific offices that they have a degree of integrity and have the competence and commitment to do the job to which they are appointed or elected properly and effectively.
I wish to make a minor point on juries. We will have a change whereby when a jury is sequestered overnight the judge can separate the jurors. This could lead to a risk of intimidation. We have extremely serious criminal activities in the country and we have seen significant high-profile examples of the total disregard for law. I wonder about this provision. We must ensure that we do not place jurors in a situation whereby as a result of separation they find themselves intimidated during their consideration of the evidence prior to making their decision and returning to the court.
Unlike my colleague, Senator Walsh, I do not have a difficulty with elevating the necessity for tax compliance to the level it is in legislation. It is important that all public officials are tax compliant, that they are seen to be tax compliant and can certify themselves as tax compliant. I would not exclude a member of the Judiciary from such a requirement. It is a novel suggestion that while a tax clearance certificate should be required of people across the public service, politicians and others - perhaps members of the Judiciary - ought not to be required to do so. They should, just the same as everybody else.
To some extent, the Bill is a bit of a dolly mixture. I counted 30 pieces of legislation, and I may have counted one or two twice, which it is proposed to amend on foot of the Bill. I do not know whether this is unprecedented, but it is a long list to be amended by one Bill. I understand the rationale in most cases because many of the amendments proposed, as the Minister of State fairly stated, are, to use the phrase, "minor and technical". However, one person's minor and technical amendment is another person's federal case, as we have often seen. Something that looks technical may be of fundamental importance.
I take the point made by the Minister of State that some of the amendments proposed to the Equal Status Act — with which I am familiar from practice — the Succession Act and the Bankruptcy Act seem to be quite technical in nature and it would not be appropriate to have the infrastructure of an amendment Bill in this context in each case. It is probably appropriate that it is done in this way. I am not sure about other areas. Relatively substantial amendments are proposed in the areas of video recordings and censorship. On reading them, I wonder — rather than being definitive about it — whether it would have been more appropriate to introduce an amendment Bill under the rubric of the original legislation.
Much of what is in the Bill is reasonable and to be welcomed and will probably win the support of the House. The Bill contains a number of amending provisions which seek to improve the efficiency of the Courts Service. This is good and it is important to remind ourselves that the Courts Service is a public service. When all is said and done about the trappings of the law, whether it is the wigs and gowns or the mystique about lawyers, in some cases a mystique prolonged by the profession itself without much justification, the Courts Service is a service to the citizen. Like any other service it should be accessible, efficient and professional.
To the extent the Bill seeks to improve the efficiency and accessibility of the Courts Service I welcome it. The change to a professionalised body such as the Courts Service has been a great achievement in recent years. Those of us who are practitioners in the system have all seen it. I think and hope users of the system and the service also see it is a more professional and accessible service.
I heard what Senator Walsh stated and I am sorry he is not here to hear my response. There is no question that lawyers in particular constitute an easy target, whether with regard to fees or complaints against the profession. The legal ombudsman Bill will be dealt with separately and this is a good idea. When abuses are reported publicly and we have the shocking things we have seen happen, the call goes out for independent regulation. It may be in this day and age it is right that all professions should have a measure of independent or outside regulation.
However, I counsel against people thinking that some of the more outrageous abuses we saw in recent weeks and months can ever be removed or dealt with simply by having an element of independent regulation of the professions. If somebody makes off with clients' money or engages in what is effectively theft in his or her practice it does not matter whether we have independent regulation or regulation by the profession itself. In some cases these are criminal offences and are serious abuses. They ought not to, could not and would never be tolerated under any circumstances. The notion of how it is regulated and whether the complaints system should be fully managed within the profession or done independently will not deal with bad people or lawyers. Whether the sanction is imposed by and the matter is regulated by an independent body will not necessarily solve this. This is put out as a panacea and we must be careful.
One of the disadvantages of coming towards the end of a debate is that many of the issues one wants to raise have already been raised by colleagues. One of the advantages is that one has the opportunity to respond to some of the points made with which one disagrees. I again regret the fact that Senator Walsh is not here for me to respond in this way.
It is more of a courtesy and I accept it in terms of the protocol of the House.
In terms of what was stated on the legal profession and fees, I would welcome a debate on lawyers' fees. We could have it in this House and I would have no problem participating in it. It might be more interesting than the brickbats which go across the House on this subject. Let us ask whether it is right that our great friend, the market, should define legal fees. This is the case. Whether colleagues like it or not, legal fees are determined by a market. If Senators have ideas and proposals — I might share some of my own in due course — as to how this might change let us have them debated. It is not enough to rail against individual examples of high fees and the suggestion of a cartel among members of the profession. I am not aware of any such cartel in terms of setting legal fees or restricting competition within the profession. However, if there is such a cartel and if that allegation is to be made, let it be elaborated on and let us have the debate to see what people are talking about.
Again I remind Members that the fees in the tribunals were not set by the Bar Council but by the Attorney General. Let us be clear where the difficulty lies. If members of the Government are unhappy about the legal fees being paid to lawyers doing a professional job before the tribunals set up by these Houses, instead of railing against them and availing of 30 seconds to have a go at them in this House, let us have a real debate and ask why the Attorney General set fees for lawyers at the tribunals on a daily basis and in circumstances where it could be seen that the tribunals would go on for months and even years. Why did he do that or not change it subsequently? Let us have that debate and be clear about it. I am not here speaking on behalf of the profession or the Bar Council. I am a lawyer in practice but a certain amount of honesty and clarity about these issues would help all of us in such a debate whenever we have it.
I do not have the opportunity to go through some of the other issues in the Bill now but I might revisit them on Committee Stage if we believe it is appropriate to introduce amendments. One or two issues strike me in passing as welcome. For example, what the Bill proposes in respect of the management of the jury system, such as the empanelling and availability of persons for jury service, is very welcome. We often hear from people who serve on juries — I am not talking from a professional point of view but from an anecdotal one — that they must take two days or a week off work but that there is huge uncertainty surrounding the time required. There are exigencies in the legal system and it is not always clear when a case will be taken. However, perhaps we could look again at how we manage the system and how we can give people a little more clarity if they are empanelled for jury service. We should give them some indication on how long they will need to be available so they will be a little bit more prepared to co-operate.
The Minister of State will agree it is vitally important that a wide range of people are available to serve on juries. This issue has come up again and again. There is often a preponderance of people who are retired or people who are more available than, say, people in business and people working for themselves. Sometimes there is an imbalance in the availability of people to attend for jury service. We should always strive to ensure there is a proper range of citizens available to serve on juries. The Minister of State said there was a possibility of increasing the age limit to 70. While I do not have a difficulty with that, it again reflects the experience that there tends to be a preponderance of people in the older age bracket available to serve on juries which is a pity.
The Bill does away with censors and replaces them with classifiers. I do not know whether that is a product of the more careful and sensitive language of our era or whether it represents something of more substance than simply a change in the nomenclature. Perhaps it is good that we depart from the kind of Victorian idea of censorship and look at it in a more professional way and describe the censors as classifiers. However, it does not have the same ring, but that is for another day.
I agree with Senators Regan and Norris in respect of legal aid. I would like the opportunity to review this issue which one can do on Committee Stage with amendments. If I understand it, it seems the rationale the Minister has proffered for this change does not stand up. Perhaps the Minister of State will revisit it in his closing remarks if he gets the opportunity. I hope the Minister has had the opportunity to discuss this with the people involved in FLAC who raised it with me and others. Their view is that the amendment would have the effect of narrowing the number of cases where a waiver or a reduction in contribution would apply in the case of severe hardship. That is a view people involved in this field have formed on the basis of their experience. The definition of "severe hardship" must be looked at. What is severe hardship as opposed to hardship? If the effect of the Minister's amendment, which was passed by the other House, is to narrow the cases where a waiver or reduction would apply in cases of severe hardship, it would be wrong and would be a reduction in the level of legal aid available to persons who need it.
Placing a further onus on an applicant to demonstrate severe hardship introduces a new hoop through which people must jump. From the analysis of this provision I have read, it would appear to represent a weakening or a reduction in the level of legal aid rather than simply being a technical adjustment as appears to be suggested by the Minister. This could lead to further hardship and a contraction in the number of circumstances in which we would make legal aid available. Will the Minister of State clarify what precisely is the reason for this and reassure us that it will not have the effect FLAC and others state it will?
I welcome the Minister of State and the opportunity to comment on the Civil Law (Miscellaneous Provisions) Bill 2006. As Senator Alex White said, the Bill contains amendments to 30 pieces of legislation. The changes are mostly to non-criminal areas of law. There are many small but important changes and I will refer to some.
I refer to the creation of the office of the legal ombudsman. Other speakers said the purpose of the Bill is to make the courts and legal services more professional and efficient. However, the issue of addressing confidence and public trust in those services is important. I understood the purpose of creating the office of the legal ombudsman was to enhance the transparency of, and public confidence in, the system of regulation of the legal profession. As other speakers said, the number of recent high profile cases in regard to certain members of the legal profession have served to undermine public confidence. I do not mean to cast aspersions on any members of the legal professions in this House or outside it but, unfortunately, people feel very vulnerable when dealing with legal professionals if they do not get the professional service they require.
Some of the recent high profile cases have shown that even where the professional bodies have investigated those who have been the subject of complaints, the outcomes of those investigations were not always very satisfactory. I look forward to the creation of that office and emphasise the Green Party's hope that the person appointed is seen as independent in the performance of his or her functions. That will possibly be difficult to achieve. Certain professions will be excluded from those considered eligible for that position. However, the independence of the position and the perceived independence of the person who will hold that position will be important.
The Bill addresses the issue of the collection of court fees. The transfer of this function to the independent Courts Service, which reflects what already takes place, is a welcome provision. The Bill clarifies also the situation in respect of the electronic issuing of summons, especially where these are issued electronically through an outside controller. The clear definition of what is meant by "electronic means" is helpful.
I welcome that the Bill provides for video conferencing in civil proceedings. This is provided for already in respect of criminal proceedings and is a welcome development. The Bill also allows for the county registrar to take on additional functions of an equivalent office. This will serve the purpose of freeing up judicial time and will allow for the disposal of a number of matters, including family law matters, in the Criminal Court. This will be helpful given the congestion that already exists in the family courts and in family law matters.
The Bill provides for the appointment of three additional 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 deal with cases required to be dealt with under the Children Act 2001, which is to be welcomed.
Section 51 addresses the issue of the language used in the First Schedule of the Juries Act 1976 and makes changes in that regard. This provision is also welcome. Senator Alex White used the term "Victorian" to describe certain aspects of older legislation. I agree that the language used in previous legislation could be deemed offensive in today's terms by potential jurors. The use of language such as "incapable persons" and "unfit persons" is being done away with. The Bill is now more non-specific in respect of juror infirmities which would make it impracticable for a person to perform a juror's duties. I welcome this important and appropriate change.
Section 59 provides, as stated by Senator McDonald, that parents employed by the same employer may transfer all or part of their parental leave to the other relevant parent subject to the employer's agreement. I welcome this change which seeks to achieve that previously attempted by a previous amendment to the Parental Leave (Amendment) Act 2006. I echo Senator McDonald's comment that while this is welcome, it is only a small step in terms of the direction we should be taking in respect of parental leave. I hope it is not the case that we will have to wait for the European Union to push us into adopting the type of paid parental leave provisions available in many continental European countries.
I hope the Department of Justice, Equality and Law Reform and other relevant Departments will consider this matter soon.
As stated by other Senators, section 67 waives the contribution payable for legal aid and allows the Legal Aid Board much more discretion. The Green Party's understanding of this is that it will improve conditions for those eligible for legal aid. I am disturbed to hear other Senators interpret it in a different way and suggest it will narrow cases to which a waiver might apply. It would appear from reading the Bill that it will allow the board the discretion to waive fees due even in circumstances where more than the minimum fee is payable. Perhaps the Minister of State will clarify whether this provision will widen or narrow the number of cases to which the waiver can apply.
I share some of the concerns expressed by Senator Norris in respect of the inclusion of the phrase "severe hardship" and how this will be defined. Perhaps the Minister of State will specify what onus this will put on applicants.
The Green Party welcomes the Bill and believes it is a timely tidying up of many outstanding issues dealt with in other legislation. I welcome the Bill's passage through both Houses of the Oireachtas.
My colleague, Senator Regan, has outlined the general welcome our party gives to this Bill and to the wide variety of proposals and issues dealt with within. I wish to focus on three elements of the Bill, namely, Parts 4, 9 and 11, which deal with leases for commercial property, the operation of the current film censorship office, and the reference to parental leave and the ability to share it across the same employer.
I have followed the passage of this legislation through the Oireachtas with some interest. The non-existence of this legislation has caused severe hardship to a constituent of mine in respect of her ability to maintain a commercial lease and to operate her business. This matter received a fair degree of coverage in the media and the Minister of State carefully responded to it during an earlier discussion on the Bill. I welcome that this legislation is being discussed in the Seanad. The non-operation of this legislation has meant a small business operating in a commercially leased property is gradually finding the amount of space open to it being reduced. The landlords are legitimately concerned their responsibilities and the amount of control they will have over the lease will be steadily eroded over time. As a result of this fear, they have reduced the support and space available to this tenant.
The economic environment in which we operate means we are more focused on the need to support small businesses which, given their nature, are more reliant than larger businesses on commercial leases. This legislation is welcome. Having discussed this legislation with the tenant concerned, I believe there are lessons worth stressing in this arena. The first relates to how we reached a point whereby a gap in legislation resulted in the viability of a business, especially a small business, being threatened and compromised.
The Private Residential Tenancies Board, PRTB, exists to deal with matters in respect of the domestic rental sector. This organisation is quite vocal and adept at identifying gaps that exist in legislation in respect of the domestic rental market. It is important we learn from what has happened. I hope in future that body or another will be able to identify problems in this area before they develop. We must ensure no business is compromised in this way.
It is important we review the conditions upon which commercial leases are granted to ensure, as the needs of small businesses change and develop, the environment in which they operate is flexible. We must ensure legislation keeps apace with changes in the needs of these businesses. I hope we can deal quickly with this legislation and have it enacted to ensure the commercial sector in general and the tenant of whom I spoke earlier are not compromised further in any way.
I welcome many of the provisions contained in Part 9 which deals with the Censorship of Films Act and the changes made in respect of the Irish Film Censor's office. I welcome the increase in fines to be levied on those found to be in breach of the current legislation in terms of renting out videos and DVDs to minors. I welcome also the recognition that there exists some non-mainstream enterprises which, because of current charges, are unable to get their films out to charities and so on which may be interested in viewing or showing them. This is particularly welcome given the Irish film industry is leading the way in some of these films. It is a good change.
This legislation contains a reference to the threshold on the basis of which a decision will be made if the content of a film is likely to cause harm to children. I would like us to debate that issue further in the future. The films that are now part of mainstream entertainment have images and content which, if reflected on, would raise questions about whether children should be exposed regularly to them.
I raised a point previously, on which I have contacted the Irish Film Censor's Office, concerning the displaying of posters containing images advertising films, which when contained in a film result in it having a rating which prevents it from being viewed by minors. I referred to a film with an 18 rating. It was a horror film that contained scenes of explicit torture. The poster advertising that film contained an image of a man being tortured. That poster was displayed outside a cinema in O'Connell Street and outside other cinemas throughout the country. Following my raising this point with the film censor, he raised it with the distributor of the film.
When I raised the issue of this film poster, I wondered if we had become desensitised to the images we allow to be viewed by all members of the public, which lowers the threshold of images we perceive to constitute explicit violence. I would like to debate this point in future and receive a more measured response to it. We properly spend considerable time discussing the prevalence of violence in our community. The advertising of such images in a mainstream manner should give us pause for thought but it should also give us cause for action. It is an issue I would like to debate in future.
Some colleagues referred to the issue of parental leave, the provision of which is a small but welcome measure in the legislation. As a new father who is desperate to take advantage of the opportunity to spend all the time I can with my new born children, I am strongly of the view that my role as a father is given little recognition in the existing legislation. We need to address that to ensure fathers are given the opportunity to play a more responsible role in the household.
Speaking as a previous employer, it is important to ensure employers are made aware of the existence of this clause. Employers, in general, are of the view that they are expected to be as flexible as possible in their response to mothers seeking time off for parental leave, but they do not have the same attitude to such requests from fathers. This change in the legislation is welcome, therefore, although it is a small step. It is important employers are made aware of this provision to ensure when fathers take advantage of this provision, which I hope they will, they are not to be greeted with baffled looks or looks of indifference from employers. I would like the Government and the relevant statutory body to take this issue seriously and to act upon it in future.
Tá áthas orm deis a fháil labhairt ar an mBille seo. Nuair a fhoilsíodh an reachtaíocht seo i 2006 agus nuair a tháinig sé ós cómhair na Dála i mí Meán Fhómhair 2006, chuir mo chomhghleacaí, an Teachta Aengus Ó Snodaigh, fáilte roimh an méid a bhí sa Bhille, go háirithe an moladh chun ombudsman ó thaobh seirbhísí dlí a thabhairt isteach. Cé gur chuir Sinn Féin in iúl go gclárófar leasuithe chun cur leis na moltaí a bhí ann, bhíomar sásta go raibh dul chun cinn á dhéanamh sa deireadh thiar thall. Ar an drochuair, bhain an Rialtas amach cuid de na rudaí maithe a bhí sa Bhille ar Chéim an Choiste sa Dáil. Is mór an trua é gur tharla sé sin.
When this Bill was published and commenced in the Dáil in October 2006, my colleague, Deputy Aengus Ó Snodaigh, welcomed the prospect of the position of a legal services ombudsman being introduced. While we indicated our intention to table amendments improving those provisions, we were happy that progress, which was long overdue, was being made. However, unfortunately and unaccountably the Government removed those provisions from the Bill on Committee Stage in the Dáil, thereby further prolonging the current and unacceptable position where a powerful and often elite profession is left to regulate itself. Sinn Féin looks forward to debating the Legal Services Ombudsman Bill 2008 in due course.
In terms of the Bill before us, the Civil Law (Miscellaneous Provisions) Bill 2006, ba mhaith liom díriú isteach go háirithe ar rannóg 67, a meastar sa Dáil agus a bhaineann le legal aid. I particularly draw attention to section 67, as passed by the Dáil, relating to the provision of legal aid. This section amends section 29 of the Civil Legal Act 1995. Section 29(2) of that Act reads, "The Board may, in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources and may waive any contribution payable pursuant to this section and to any other regulations under section 37 or may accept a lower contribution." Section 67 of the Bill before us would amend it to read, "The Board may (a) in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources, (b) waive any contribution payable pursuant to this section and to any other regulations under section 37, or accept a lower contribution, on the ground that a failure to do so would cause severe hardship to the applicant."
As the Free Legal Advice Centres, FLAC, have highlighted, the Legal Aid Board's power to waive or reduce the contribution payable for legal aid services in the amended version is now dependent upon believing that a failure to do so would cause severe hardship to the applicant, a precondition that is not in the existing subsection. The rationale for the change provided by the Minister during the Dáil debate on the Bill is not accepted by the Free Legal Advice Centres. These centres are part of an organisation that has great experience dealing with the shortfalls of the current legal aid system. FLAC has real concerns and these are underpinned by persuasive arguments. The severe hardship test is excessive. It will overly limit and restrict the assistance that the Legal Aid Board can offer to those who cannot afford access to legal services.
The current means test already fails many because it fails to take personal indebtedness or other financial commitments into consideration. As FLAC outlined, the current means test for legal aid does not take into account financial commitments to the applicant such as consumer loans. Thus, many will have to pay a sizeable contribution based on their means, but their indebtedness will not have been taken into account. Confining the board's power to waive or reduce contributions on the ground of severe hardship will make it more difficult for persons to argue for a deduction despite their straitened financial circumstances.
The effect of section 67 will be to make only the most residual of protections available, meaning that more legal needs will go unmet. When the safety net is this low, backs will undoubtedly be broken. I call on the Minister of State to delete this section from the Bill or, at a minimum, to reduce the test from severe hardship to hardship only.
I thank all the Senators for their contributions. We are attempting to cover a wide variety of areas under the remit of the Department of Justice, Equality and Law Reform. Some Senators referred to it as a tidying up exercise. Being the month of April, it is probably appropriate that we do some spring cleaning. Most Senators were supportive of the Bill, although some criticisms were expressed about certain aspects of it. I will try to deal with as many of the issues raised as I can in the time available. In the event that I do not deal with some of them, no doubt we will have plenty of time on Committee Stage to deal with them.
A number of Senators mentioned section 67 which deals with technical changes to be made to the Civil Legal Aid Act regarding contributions to be made by the recipients of legal aid. I am aware of one non-governmental organisation which perceives this amendment as in some way requiring legal aid clients to make greater contributions than they do at present. This is not the intention of the amendment, rather it is the reverse. The Legal Aid Board's advice on the matter is that the existing provisions give rise to doubt. The new provisions are designed to remove that doubt and give the board greater freedom to reduce or waive contributions in appropriate cases.
The question of providing a definition of "hardship" was mentioned. I am not sure how a word with such a plain meaning might be defined further. It is perfectly understood, I believe, by a majority of the population. I am not sure how it might be defined more clearly. However, I shall be more than happy to listen to any suggestions from Senators in that regard on Committee Stage. We are in regular contact with FLAC. It rarely keeps any views it has to itself and it is in regular discussion with the Department. No two organisations in discussion will agree on everything but we very much respect FLAC's views. On this issue, however, it has misinterpreted the proposal. When the Bill is enacted, it will become clear that what we are saying here will happen.
Senator McDonald requested clarification on the proposed changes to the Landlord and Tenant Act. I was asked whether they would apply at any time during a lease and not just when the lease was agreed to. I confirm this will be the effect of the amendment and, as such, it will allow not only persons entering into a lease after the commencement of the Act but also persons committed to a lease to avail of this opt-out at any time before the renewal date. This is provided the parties are satisfied following independent legal advice that the opt-out is suitable for their particular circumstances.
Senator Walsh questioned the effect of the renewal of section 24 of the Petty Sessions (Ireland) Act. I can clarify for the Senator that any hearing of an appeal from the District Court is by way of a complete rehearing which would render any note kept of the evidence useless. In practice, a note of the evidence is not kept. The District Court dealt with more than 560,000 cases in 2006. Given that type of statistic, it is clear it would not have been possible for judges to keep notes of evidence in each individual case. In addition, I remind Senators of the introduction of digital audio recording in the courts. The timeframe for that project provides for completion in all courts by the end of 2009.
Mention was made of the risk of intimidation of juries if they were allowed to separate following a trial. This provision is at the discretion of the judge who will not permit the jury to separate if he or she believes such a risk exists.
A number of Senators referred to the Succession Act and clarification was sought on what was being proposed. It pertains to a situation where people who own a property as joint tenants die at the same time. A Senator asked me to explain what would happen in that particular situation. Take the example of a husband and wife who own their own family home as joint tenants and are killed in a car crash. As it is a joint tenancy, if one spouse had died, the surviving party would become the sole owner automatically without the deceased's share ever forming part of the estate. However, the question is what would happen if both died and there was no serving joint tenant to assume ownership. The law at present is silent on this question and as a result, there is no certainty for the surviving relatives of the deceased couple. In addition to dealing with the grief of the double loss, the family are forced to go to the courts to determine what should happen to the family home. The proposal we make in this Bill will clear up matters and provide certainty as to the disposal of the jointly owned property. In the example that was raised, half of the value of the house will go into the estate of each deceased spouse and will be disposed of in accordance with the terms of the wills made by either party.
Senator O'Donovan mentioned the Government's commitment to tidying up the entire body of law. The Government has established on a statutory basis the codification of the criminal law review group which is in the process of codifying the entire body of criminal law. As a solicitor, Senator O'Donovan will understand the enormous task the group has in hand and I am sure we will come to appreciate the benefits the completion of the work will bring to the clarity and accessibility of the law. However, it is a time-consuming task, so we shall not see progress overnight. There are also plans to consolidate and restate the law covering the courts and court officers. This is the largest body of civil law on the Statute Book and therefore has been singled out for immediate attention. The Law Reform Commission is advancing that work.
Senator Alex White highlighted the need for clarity in the law. I remind the Senator that this area is included in the Law Reform Commission's third programme for law reform. Following completion of the Law Reform Commission's review of this area of law, the Government will address any changes recommended, including changes to ensure clarity. The proposal in the Bill relating to juries will not prejudice the commission's valuable work in this matter.
Several Senators touched on a number of aspects concerning the legal profession. It was not unexpected that a number of Senators who are members of the legal profession participated in today's debate. From a professional viewpoint their contributions were very interesting and are very much respected. In the contributions a number of aspects of the legal profession were touched on, including disciplinary matters and the question of costs. I have no doubt these matters will be ventilated fully when the Legal Services Ombudsman Bill, at present before the other House, comes to the Seanad. The Minister is preparing a Bill to address the question of legal costs which will provide a further opportunity to debate this issue. Senator Alex White obviously was very keen to have the matter discussed. I am sure Senators will use the opportunity that presents itself to debate the issue.
I was interested in Senator Paschal Donohoe's contribution, especially on paternity leave. Very often when we are wrapped up in proceedings in this House and talking about particular issues, we believe the world is listening to us. Very often we pass legislation in the House that goes almost unnoticed outside the House. It is important the provisions in the Bill pertaining to paternity leave be publicised. It is important employers and employees are made aware of the changes we are introducing.
I thank the Members for their contributions and look forward to further dialogue with them on Committee Stage.