Thursday, 7 July 2011
Civil Law (Miscellaneous Provisions) Bill 2011: Report Stage and Final Stages.
I welcome the Minister for Justice and Law Reform, Deputy Alan Shatter, back to the House. Before we commence, I remind Senators that a Senator may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded.
Government amendment No. 1:
In page 6, to delete line 1 and substitute the following:
"(5) The Equal Status Acts 2000 to 2008 and sections 25 to 27 may be".
Amendment No. 2 corrects an omission in the Equality Act 2004. That Act moved the existing provision for delegation of functions by the director of the Equality Tribunal from section 75(4) of 1998 Act to a new subsection (4B). However, section 75(6) of the 1998 Act, which refers to the delegation of such functions by the director was not amended by the 2004 Act to reflect the amendment reference to subsection (4B). This amendment also reflects the transfer to the Minister for public expenditure and reform of the consent function of the Minister for Finance in section 75(4A) of the Employment Equality Act 1998 by an order of the Government which come into effect on 6 July 2011.
I move amendment No. 3:
In page 20, line 45, to delete "12th anniversary" and substitute "3rd anniversary".
I hope the Minister and I can revisit this amendment in good faith. On Committee Stage I spoke at length on the issues arising but, unfortunately, the relevant part of the Bill was guillotined. I strongly believe that the Minister should consider a period of three years. He has stated that while he has an open mind, he is keeping the five year clause. As I was not in a position to deal with this amendment on Committee Stage, I propose to press the question regarding amendments Nos. 3 and 4.
We had an extensive discussion on reform of our law on bankruptcy on Second Stage and Committee Stage. It is fair to say my proposals received a positive welcome from most Senators. However, I emphasised these early reforms were in advance of the more comprehensive reform required under the EU-IMF programme of financial support for Ireland. Essentially, I am providing in section 20 for an automatic discharge for the first time of bankruptcies on the 12th anniversary of the adjudication order, with no conditions.
Senator O'Donovan's amendment No. 3 seeks to reduce that automatic discharge period further, from the 12th to the third anniversary. Such a reduction would be premature in advance of more comprehensive reform of bankruptcy law. A reduction of that kind would be unwise without a simultaneous examination of the conditions under which persons are to be discharged from bankruptcy. These conditions are fundamental to the current system and include the following payments of costs, fees and expenses of the bankruptcy and preferential payments. As I advised the House previously, preferential payments cover outstanding moneys due and payable to the Revenue, payable rates and, importantly, moneys that may have payable to former employees.
While I cannot accept the amendment, I am not opposed in principle to a further reduction in the period of time concerning automatic discharge. Work is under way in my Department on more substantial bankruptcy proposals and it is in that context that I envisage a further reduction in the period of automatic discharge.
Amendment No. 4 seeks to further reduce the number of years after which a bankrupt can apply to the court for discharge from bankruptcy from the proposed five years to three years. While I appreciate the reasons for the Senator's amendment, I cannot accept it. The reduction in the application period to the court from the current 12 years to five years for a discharge from bankruptcy, subject to existing conditions including payment of expenses and preferential payments, is a significant advance. We should wait to see how this provision operates in practice before going further. In any event, the application process for discharge is distinct from automatic discharge under current law. For these reasons, I am afraid that I cannot take on board either of the amendments tabled by Senator O'Donovan.
The Seanad Divided:
For the motion: 26 (Ivana Bacik, Paul Bradford, Terry Brennan, Colm Burke, Deirdre Clune, Paul Coghlan, Michael Comiskey, Martin Conway, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, John Gilroy, James Heffernan, Imelda Henry, Lorraine Higgins, Caít Keane, John Kelly, Fiach MacConghail, Maire Maloney, Mary Moran, Michael Mullins, Catherine Noone, Susan O'Keeffe, Pat O'Neill, Tom Shehan, Jillian van Turnhout)
Against the motion: 15 (Sean Barrett, Thomas Byrne, David Cullinane, Mark Daly, Terry Leyden, Marc MacSharry, Paschal Mooney, Rónán Mullen, Darragh O'Brien, Denis O'Donovan, Ned O'Sullivan, Averil Power, Jim Walsh, Diarmuid Wilson, Katherine Zappone)
Tellers: Tá, Senators Paul Coghlan and Susan O'Keeffe; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.
Question declared carried.
I move amendment No. 5:
In page 31, between lines 13 and 14, to insert the following:
"31.—The Irish Nationality and Citizenship Act 1956 is amended by the substitution of the following for the first three lines of subsection (1) of Section 15A (inserted by section 5 of the Act of 2001):
"15A. Notwithstanding the provisions of section 15, the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse or civil partner of an Irish citizen if satisfied that the applicant—".".
My amendment proposes to insert a new section into Part 10, which focus on the Irish Nationality and Citizenship Act. The intention is to ensure in law that non-Irish persons in civil partnerships with Irish citizens will receive the same citizenship rights as non-Irish persons in civil marriages. I wish to point out two additional sections of the Irish Nationality and Citizenship Act which could be amended within the Civil Law (Miscellaneous Provisions) Bill for the Minister's consideration as he brings it to the Dáil. My comments on these two sections will be rooted in the same principle behind the amendment tabled today, namely, that civil partnerships registered or recognised by Irish law be treated the same as marriages in the area of immigration.
As the Minister is well aware, the passage of the Civil Partnership Act 2010 signalled the Government's intention to provide similar rights, protections and responsibilities for same-sex couples as for married couples and viewed this as a major step towards equality for same-sex couples. It is my view that the establishment of a separate institution for same-sex couples, namely, civil partnership, was not the most effective and efficient way to equalise treatment between same-sex and opposite-sex couples. Nor do I think it was the right thing to do. However, the matters of ethics, justice and equality in this regard are for another day. Even with the Civil Partnership Act there remain a number and types of differences between civil partnership and civil marriage and some of these differences, it would seem to me, can be eradicated with very little debate. The Civil Law (Miscellaneous Provisions) Bill presents an opportunity to amend the law and reduce some of these differences and, as the Minister indicated in his speech in the Chamber last week, the Bill has significant scope and seeks to achieve many reforms of several Acts of the Oireachtas.
The amendment I have tabled would simply eradicate the way in which the Irish Nationality and Citizenship Act discriminates against civil partners in respect of the naturalisation process. Under the law as it stands, spouses of Irish citizens seeking naturalisation can avail of more favourable eligibility conditions than applied to civil partners of Irish citizens. Of course, this is in the context of the Minister's discretion. One of these more favourable eligibility conditions is with regard to the minimum number of years a spouse must be a resident. As the law stands, a spouse must be a resident for at least three years whereas a civil partner must be a resident for at least five years. By simply inserting the words "civil partner", the amendment will extend the same naturalisation rights to a civil partner as enjoyed by married spouse. The acceptance of this amendment would bring about further parity between non-Irish civil partners of Irish citizens and non-Irish spouses of Irish citizens under our naturalisation and immigration system.
I understand Government policy is that a civil partner will be treated as equivalent in immigration matters to a person who is married to another person of the opposite sex. It is also my understanding that in his response to a parliamentary question tabled by Deputy Caoimhghín Ó Caoláin in April, the Minister indicated his intention to bring forth an amendment on a future date which would see the provisions of the Irish Nationality and Citizenship Act extended to cover civil partners of Irish citizens. The amendment I have tabled seeks to do this.
Although I have tabled only one amendment, I wish to identify two additional sections of the Irish Nationality and Citizenship Act which could be amended when the Bill moves to the Dáil that would further the equal treatment of civil partners and spouses under immigration legislation. The first is section 22 which ensures the death of an Irish citizen or the loss of his or her citizenship does not impact on the citizenship of his or her spouse or children. I put forward for the Minister's consideration that an amendment could be inserted into the Civil Law (Miscellaneous Provisions) Bill to include civil partners and the children of civil partners under the protection of section 22.
The second is section 23 which ensures when an Irish citizen marries a non-national he or she does not lose his or her Irish citizenship due to the marriage even if he or she acquires the nationality of the non-national. I suggest for the Minister's consideration the development of an amendment that would simply propose parity for civil partners in this regard.
I support of Senators Zappone's amendment. She has explained very eloquently the rationale behind it. It is very much in keeping with Government policy that recognition would be given to civil partners in this context and it has been promised. We had an extensive debate in the House on the Civil Partnership Bill and during that debate it was certainly discussed that measures such as this would need to be introduced to give effect to the rationale of the Civil Partnership Act. There was also a debate on the merits of civil partnership against gay marriage and like Senator Zappone I have strong views on this, but I accept the debate on this amendment is not the time or place to discuss this matter.
There is considerable merit to this amendment and I say this as somebody who had significant concerns about the civil partnership legislation which I need not rehearse here. I do not know whether Senator Zappone stated she disagreed with the civil partnership legislation. The concerns I had were to do with the fact that it did not include all people and other categories of people in caring dependent relationships and the particular problems for freedom of conscience generated by the legislation. Those were rehearsed in detail last year and it is regrettable that the debate was guillotined and we did not have an opportunity to discuss our concerns in full. Extensive contributions were characterised as filibustering. It is regrettable we are again in the era of the guillotine. Had we not had a guillotine last year, those of us who had concerns about the civil partnership legislation would have had an opportunity to demonstrate clearly that we were in favour of a range of supports being made available to people in various caring dependent relationships, including people whom civil partnership reaches but also others who are not the beneficiaries of the civil partnership legislation such as carers and other relatives in certain situations.
Recently, I had occasion to deal with a person who had great difficulties with having his foreign fiancee admitted to the country so he could get married. We have the rather strange situation whereby a citizen or resident of another EU country can bring in his or her partner from outside the EU, but the rights of a resident of the first country are not as straight forward. It is an invidious situation whereby people with loved ones abroad are not in a position to be with them. I know there must be limits or one could end up with a m'asal beag dubh type scenario if it were to be opened up completely and this would not be desirable from a public policy point of view. To use that awful phrase, "we are where we are", and even if, as I believe, the civil partnership legislation introduced is flawed I recognise it establishes a category of people who enjoyed certain protections under Irish law and this is one of the protections that a person should be able to access.
I support a woman who has done her homework. I do not have the homework done on this matter but I understand from where she is coming and I support it in theory. Will the Minister consider it? While I do support it, I do not have enough information on it at present. I would not like to support something in the dark. I want to know a, b, c and d. I am in favour of it but I want to know whether the Minister can see any flaws. Senator Zappone said the Minister stated he was proactively encouraging work on this matter. I hope the Minister will accept the amendment and, if not, I ask him to give his reasons.
I also support this in principle. It reminds me, as somebody who like many Members on both sides of the House has over many years lobbied on behalf of the undocumented Irish in the United States, that one learns a great deal. I learned a great deal from Senator Zappone in justifying the reason this amendment should be accepted by the Minister.
I learned a great deal about US immigration law and its emotional impact in the home of the brave and land of the free. For example, this legislation, if enacted, I suggest would be in advance of the situation in the United States. One hears on a regular basis from those on the right wing that those who are undocumented entered the country illegally and should, therefore, go back in line. I understand from immigration lawyers that there are approximately 15 different lines a person must join before even being considered for entry into the United States. One of the most iniquitous is for spouses of naturalised citizens of the United States. It can take up to 15 years for a spouse or their siblings to enter the United States despite that the partner is already in the United States legally.
For that reason, if for none other, I would not like to see any extra imposition, burden or obstacle placed in the way of Irish citizens who have entered into civil partnerships and are as of last year protected by the law. I hope the Minister can see fit to accept this minor change, one that will have enormous positive benefits for human beings. We are speaking here about human beings and not numbers, statutes or laws. It is in that spirit that I have made my contribution. I am very much aware of the impact of less liberal laws on immigration in America, which quite frankly is a scandal. Immigration reform should be addressed but is not because of the many Neanderthals and right wingers saying immigrants should get back in line. I would not like to see a situation develop in Ireland whereby people would be told that because of the legal protection afforded to partnership, the other half of that partnership should be told to get back in line.
I, too, support Senator Zappone's amendment and hope the Minister will take it on board. The recently enacted Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provided the general foundation in this regard. The tax rights and responsibilities in this regard are dealt within in the Finance (No. 3) Bill 2011. The issue of immigration is the one area remaining to be addressed. I have not had time to examine in detail the other amendments proposed by Senator Zappone in regard to the other two changes that may be considered in the Dáil but they sound eminently reasonable. I hope the Minister will also take them on board.
Addressing civil partnership issues was one of the biggest achievements of the previous Government. I accept what Senator Zappone had to say in regard to true equality. I am committed to full marriage equality and it does not represent true equality to me either. However, I believe that legislation is an important stepping stone. In that regard, we should ensure that all the rights contained within that legislation are implemented as soon as possible. I hope the Minister can take on board the amendments proposed by Senator Zappone. Our aim in this House is to assist him in ensuring that the immigration issue is addressed now rather than in future legislation.
I thank Senator Zappone for tabling the amendment. I welcome the reception it has received in the House. I advised the House on the last occasion that I would be bringing forward further amendments. I envisaged I would be bringing forward an amendment on this issue, which addresses certain technical matters. We also looked at sections 22 and 23, as mentioned by Senator Zappone. Work on that amendment was not finalised in time for this debate. I ask Senator Zappone to withdraw her amendment because I propose bringing a more detailed amendment forward in the Dáil. If all goes well, this Bill will shortly complete its passage in the Dáil, which will allow me to come to this House during the final sitting week of the Seanad to finalise matters.
I had hoped to bring before the Seanad today the amendment in relation to giving statutory backdrop to citizenship ceremonies. Existing legislation provides, in relation to a person granted citizenship in this State, that once the Minister makes a decision, the person registers with the District Court clerk and is given a date upon which to return to swear his or her fidelity to the State. In this regard, people are often left sitting at the back of the court and are slotted in between a couple of criminal trials. Current legislation allows that for exceptional reasons the Minister may arrange something different. The exceptional reason which provided the legal backdrop to the ceremony recently held is the approximately 3,000 to 4,000 persons who have been granted citizenship waiting to have their citizenship finalised. The courts would be completely overwhelmed if they had to deal with these cases . What became a delay in the Department could have become a court backlog and as such we are bringing forward a formal statutory mechanism which will make statutory provision for the ceremonies, while still preserving individuals' entitlement to go to the District Court if need be. There will be some people who may not be available when ceremonies take place.
My intention is to bring forth a comprehensive amendment. I had hoped to have it today but I do not. I understand that matters in that regard have been completed in the Attorney General's office and that it will be ready for Committee Stage in the Dáil. If Senator Zappone agrees to withdraw this amendment, the matter will be dealt with at that stage. The issue will be addressed in this legislation and I thank Senator Zappone for bringing it forward.
It is worth putting on the record of this House that I believe it is important we address the different legacy issues that arise following enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2010 in order that there are not areas in which there are gaps and lacunae. There are other sections in this legislation, other than the ones mentioned by myself and Senator Zappone, which require further examination to ensure we have equality. It will not be possible to have all of those issue addressed within the context of this Bill. However, I am hoping to ensure that in so far as there are any remaining gaps, they will be addressed in the Immigration, Residence and Protection Bill. Committee Stage of that Bill will, it is hoped, be taken by the select committee early in the autumn following the summer recess. It is hoped the Bill will come to the Seanad before Christmas. It is my objective to have that legislation enacted before the end of the year. We will do our best to have incorporated within it any other anomalies that arise under citizenship laws following on from enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2010.
I thank Senator Zappone for raising this issue and ask her to bear with us on this matter. It is encouraging that this principled approach is supported on all sides. It gives me the momentum to ensure we get it through the Dáil and back to the Seanad before the summer break.
I thank Senators for their support. I also thank the Minister for his fulsome reply. As I understand it, the Minister wishes to bring my amendment and a couple of others before the Dáil for consideration. On that basis, I am happy to withdraw the amendment. I am extremely happy and delighted to hear that he will be bringing before the Dáil an amendment providing for the statutory backdrop to the citizenship ceremony. When granted citizenship in 1995, I went through the type of ceremony described by the Minister. It would have been wonderful to have had the opportunity to attend the type of ceremony which the Minister is putting in place. I am glad to hear that this will be provided for in the Bill.
Members may be interested to hear that the pilot ceremony went well and we learned from it. Arrangements are being made in my Department for a series of ceremonies to take place during the last week in July. We are hoping in that context that hundreds of people granted citizenship and who would otherwise have to wait until late autumn before having the opportunity to formally become Irish citizens in the courts would have the opportunity to do so.
I do not want these ceremonies to be confined to Dublin, although a number of those held in July will be in Dublin, with one outside the city. I hope as we get into the early autumn there will be a ceremony in Cork and other locations. Officials in my Department are working seriously on the matter and we hope this will be the norm for the future.
These are technical amendments to correct the text in Part 11 concerning amendments to the Immigration Act 2004. They are very minor technical amendments, and we hope that Act will be reformed by the end of the year.
I am not suggesting that I will oppose these technical amendments. I congratulate the Minister on the initiative he mentioned relating to a citizenship ceremony but is it his intention, in the context of the review inferred in the comments, to consider a nationality test? This matter came up with previous Ministers responsible for justice matters over the past ten years, and I am not suggesting putting unnecessary obstacles in place. The test would be in common with our near neighbour in the United Kingdom and the United States. It would examine a general knowledge of Ireland, an ability to speak and converse in English and matters of this nature.
We have learned and the Minister will continue to learn from the failures of other countries, particularly the UK, where the immigrant population was not integrated as effectively as it should have been, resulting in the ghettoisation of immigrants throughout the UK. I know the Minister and his Department will continue to follow the principle of dispersal in this regard to ensure there is greater integration, and I am thankful we have not seen racist reactions on a comprehensive basis that can be seen in the UK. Perhaps these amendments would afford the Minister the opportunity to expand a little on his thoughts in that area.
I will comment generally on citizenship before returning to the specific question. Our citizenship laws are spread across a series of Acts, and it is my objective to bring together our laws in one codified Act with some reforms therein. In the context of the significant legislative agenda of the Department and obligations we must meet under the EU-IMF agreement, the objective is unlikely to be fulfilled until 2013. In the meantime I hope to bring forward minor amendments and if they cannot be achieved in this legislation, they might be done at a later stage.
The issue raised by Senator Mooney is important and it has been part of the political discussion, although it has not received too much public attention. Other countries across the world in granting citizenship display a variety of approaches and tests, often involving linguistic or historic facets, and there may be elements of the democratic background and tradition of the country. Applicants for citizenship are required to meet certain standards in the tests.
I considered the idea and we will examine it further but no definitive decisions have been made. It would be inappropriate to introduce legislation providing for such a test now. When I came to the Department on 9 March, there were 22,000 outstanding applications for citizenship received by the Department, with 17,000 there in excess of six months. The waiting time is an average of 25 months, so while some people have been waiting for seven or eight months, others have been waiting for between two and half years and three years for the granting of a citizenship application.
I told the House the last day that we have managed to process in excess of 6,000 applications this year, whereas just over 5,000 were processed in the entirety of 2010. It is my objective this year to focus on applying our existing laws humanely and with common sense to address the backlog. I am looking to get us to a position during the first half of next year where anybody applying for citizenship, except where there are exceptional circumstances, will have a decision within six months.
There is a large backlog to address that is putting significant pressure on officials. Some of our systems have been changed in comparison with the approaches of the previous Government, and this has brought about greater efficiencies in the processing of applications. The focus for the next 12 months will be to get to the position outlined, with citizenship ceremonies for people who become Irish citizens. They will see it as a memorable day rather than an ordeal they had to endure in the back of a court. It should be seen by such people and their families as important.
In the overall reform and codification of the law we will return to other issues that may need to be addressed. The matter raised by the Senator is under consideration, although no decision has been made about it. Should an idea of that nature be introduced, we must ensure it does not act as an unfair barrier to individuals becoming Irish citizens. For example, on occasion people may come here and be granted political asylum, with other family members admitted to the country for the purposes of family reunification. They may be elderly and there could be no prospect of them returning to their native countries but they may not develop the full linguistic skills in English that younger people would develop. Historically, this would have been the case with many of the Jewish people escaping pogroms in Europe who arrived in this country in the early part of the last century. In those cases the grandparents spoke Yiddish, with younger people speaking fluent English while not understanding Yiddish. Such people remained in Ireland for many years, and this pattern has been repeated with people from other national backgrounds.
It is important that people who become Irish citizens feel part of this country and integrate within it. They should be part of the local communities and understand our democratic traditions while communicating in our language. An interesting issue which could cause controversy in this House is in which language we want immigrants to become proficient. Would it be Irish or English? Would people be upset if we directed that the language be English as a priority over Irish? If the language was directed to be Irish, how many people would argue that a substantial portion of native Irish citizens are incapable of conducting a conversation in Irish?
I am merely pointing out that it is not a simple issue when one takes into account the traditions of this country and the different positions people take. It may be more difficult than addressing the issue in the UK or the United States. It is a reasonable issue to be raised by Senator Mooney. It is something that might form part of an interesting public debate. In so far as it is an issue for legislation, it certainly will not be dealt with in 2011 or 2012 because of the huge agenda we have to deal with.
These are similar technical amendments to reflect the transfer to the Minister for Public Expenditure and Reform of the consent function of the Minister for Finance in the setting of fees relating to immigration matters. They are to take account of the new configuration of the Government.
I move amendment No. 11:
In page 37, to delete lines 22 to 29.
Cuirim fáilte roimh an Aire agus é ar ais sa Seanad. This amendment was not previously discussed, as the section was not reached on Committee Stage. I thank the Leader for facilitating this discussion.
The Taxing Master is dealt with in Part 14 of a Bill with 15 Parts. When a Bill is a composite measure that deals with a wide range of subjects, it is important that we go through it to the end. If this was a Bill dealing with a single subject, I might not have the same concerns. Three paragraphs refer to the period of office; paragraphs (a) and (c) refer to it not exceeding five years and the Taxing Master not being eligible for reappointment.
I will discuss paragraph (b) first as it stands alone. It provides that the retirement age should be 65 years. I am pleased to have the opportunity to put the contrary case to the Minister and to hear his counter argument. Lowering the retirement age goes against much of the current thinking about age and retirement and is most unusual. The IMF-EU agreement, to which the Minister referred four times on Second Stage, moves towards a later retirement age, 66 years in 2014 and later to 67 and 68 years. My colleague, Professor Crown, would also say the movement was towards later retirement and would reassure the Minister that the 65 or 70 year old of today was in far better physical and mental condition than when the legislation was framed with a retirement age of 70 years. I cannot see a medical reason in favour of earlier retirement, as life expectancy is increasing. Judges continue in office until the age of 70 years and many barristers continue to work for even longer, depending on whether there is a demand for their services.
One of my hopes on becoming a Member of the House was to bring forward research from the university if it could aid in policy-making. We have just received a draft of the first TILDA report on ageing, which the Government is most generously funding in Trinity College. There will be a presentation on it at the Kenmare Economics Conference. The authors say their preliminary findings show there is a clear shift into the categories who do not plan to retire or do not know if they will. There is a shift away from early and modal expected retirement ages, particularly since November 2010. That is the proposition.
I understand there are only two Taxing Masters. This is not an ad feminem or ad hominem argument. I am glad to reassure the Minister after our earlier discussions that I do not know either of the two Taxing Masters, but in the wider society in general are we not moving towards an era in which there will be later rather than earlier retirements? The research appears to indicate that is the case. The people who criticised the last Government by occupying St. Andrew's Church were very active on that occasion. Is the thinking in the provision similar to that which required women to retire on marriage? Why are we requiring the Taxing Master or anybody else in the public service to retire five years earlier than was the practice heretofore?
With regard to the role of the Taxing Master-----
I am delighted to hear that news and thank the Minister and Senator Ivana Bacik for drawing it to my attention.
The next provision I wish to address is the one that imposes a term limit. When we were working on this amendment, we went through 757 pages of Taxation of Costs by James T. Flynn and Tony Halpin and term limits were not mentioned, nor was the early retirement point dealt with by Senator Ivana Bacik. The Taxing Master has an extremely important role to play. Will he or she be compromised by the fact that he or she must find something else to do in five years? Paragraphs (a) and (c) provide that the appointment cannot be renewed. We require independence rather than a Taxing Master who is wondering what his or her next career step will be. I favour tenure for the Taxing Master in view of the important task he or she carries out.
As the Minister brought to our attention, this is included in the IMF-EU agreement which states the legal profession needs regulation. We have a problem with excess costs. According to data from Forfás and the Central Statistics Office, since 2006 legal costs have increased by 12%, while accountancy costs have decreased by 7%; therefore, a 20 point differential has opened up. We have a serious problem with legal costs and I am anxious that we have a stronger Taxing Master, with security of tenure in the post, tackling these costs, rather than introducing the uncertainty that he or she could be gone after five years, or that he or she might need to make arrangements with people as to his or her future career, which could compromise the independence of the post. It could result in Members of the Seanad and the Minister answering to the IMF for why we did not reduce legal costs and for why we inadvertently undermined the independence and authority of the Taxing Master. I oppose the fixed term and the provision that one may have only one term on both of these grounds.
As Senator Ivana Bacik pointed out, the Minister has reversed the provision on retirement age by proposing the substitution of 70 years for 65 years. Having elicited further information from the Minister on the other matter, I believe I am on a roll; perhaps, therefore, he might also indicate whether he is considering changing the retirement age for members of the Garda Síochána which has been a matter of great controversy------
I thank the Senators for tabling the amendments. I listened carefully to what was said the last day and, as Senator Bacik pointed out, we are tabling an amendment to return the age to 70; nothing more needs to be said about that.
I want to put into context what we are doing and why we are doing it and why I cannot take on board the other amendment. As Senator Barrett correctly said, there is statutory provision for two taxing masters and we have only one at present; the other taxing master retired at the end of last year. There is, under the EU-IMF agreement, an obligation to introduce various reforms relating to the legal profession and that legislation should be published by the end of September. Substantial work has been done on the preparation of a legal services Bill but there is work to be done in the Attorney General's office so the Bill is only in the developmental stage at this point.
The Bill will deal comprehensively with the issue of legal costs, including dispute resolution for those costs in circumstances in which a litigant is successful in the courts, an order for costs is obtained against another litigant and where they cannot agree on what costs should be paid by the unsuccessful litigant. At present the matter goes to the taxing master who makes an adjudication on the appropriate sum. Also, if there is a dispute between a solicitor and a client over the fees charged either by the solicitor or the solicitor and counsel, that currently is dealt with by the taxing master. While we have regard to the report produced by the Competition Authority, the Horan report, and other reports subsequent to that we are dealing with the whole area of legal costs and the necessary reforms. The Bill will provide for a new and more modern adjudicative process and will set out a range of important principles in the area.
To some extent, then, the debate about age becomes irrelevant because it is envisaged there will be a new format within which legal costs will be dealt with and transitional provisions will apply to whoever is the taxing master or masters at the time when the legislation comes into place. We provided for a fixed term, which will only apply to the future appointment of taxing masters, because it is envisaged that there will be only one further appointment of a taxing master based on the reforms provided for in this legislation and within the five year period the new system will be in place and transitional provision will apply to existing taxing masters. It does not make sense to provide for a term of more than five years for whoever may be appointed to fill the gap that currently exists to ensure that while the legislation is being developed, enacted and ultimately brought into force, we still have a functioning system for costs adjudication. It makes sense that whoever is next appointed is on a fixed term contract that would not exclude him from involvement at a later stage in the new body that will be created. Unless we appoint someone who is over 60, whether 65 or 70 is the retirement age will not greatly matter because there should be no age discrimination with regard to who is appointed.
I am happy to incorporate in the Bill the change from 65 to 70 but to deal specifically with Senator Barrett and Zappone's amendments, amendment No. 11 opposes all of subsection (6) and would strike out all three of the proposed new terms of appointment of a taxing master, namely that such appointment should not exceed five years, that it is non-renewable and that it be subject to retirement at age 65. The age 65 issue is being addressed in the Government amendment but this amendment would eliminate the other two matters from the Bill. Amendment No. 13 would only apply to the retirement provision in seeking to amend the retirement age to 66. We are returning it to 70 so taking on board what Senator Bradford said, we are taking the view that 70 is the new 50. I hope when I reach that age that I still feel like a 50 year old.
We had a useful and helpful debate on these provisions and in the circumstances I hope Senators will not press the amendments. The age issue was the main issue to be addressed. It is reasonable in the context of the development of the legal services Bill that the other matters remain in place and I am looking forward to a detailed debate on that Bill when it is published and introduced. I thank Senators Barrett and Zappone for getting me to tell the House more about that Bill. Senator Mooney did not on this occasion get the additional bit of news and I will resist the temptation to remind him that the previous Government requires me to reduce Garda numbers from 14,500 to 13,000.
I compliment the Minister on this constructive discussion. Our concerns were that the fixed five year term might reduce the calibre of applicant and lead to the loss of talent because the term is not renewable. A newly recruited taxing master would have to leave after five years so I wanted to give the Minister and the courts as much discretion as possible so we get the necessary talent in what we all agree is an absolutely essential job under the EU-IMF agreement. I will withdraw the amendment while the Minister considers those points.
I move amendment No. 14:
In page 40, to delete lines 10 to 35.
I welcome the Minister back to the House. It will come as no surprise to him that I oppose any attempt to hollow out the Official Languages Act. This is a breach of fundamental rights, language rights and, I would contend, a breach of the Constitution.
Under Article 8.1 of the Constitution, Irish is the first official language. It has further protection under other articles of the Constitution. Article 25.4.4° states that an official translation shall be provided for legal reasons, Article 24.4.5° states that where both texts, Irish and English, are enrolled in Supreme Court, that is considered conclusive evidence of such law being in force and Article 25.4.6° states that where there is a conflict between both languages, the first official language shall prevail. It is surely repugnant to the spirit, if not the letter, of the Constitution that an Act can dilute the provisions for the language in the manner of this Bill, especially as Irish is the first official language of the State.
It is obvious to me there can be simultaneous translation of the legislation. I do not know why we must wait for a period for the legislation to be translated.
Is this a cost issue, because I see the cost as being the same. Will the Minister outline the reasons because there have been examples where we have had to wait for a translation and it took months if not years for the translation of some documents. My understanding is that the translations can be done at a relatively reasonable cost if done on a simultaneous basis. I do not understand why that cannot be done. Again, this is an attempt by the IMF and the ECB to dictate to the people of Ireland what we should do. It is fundamentally important that something as important as our language is protected. As the Minister will know I opposed the IMF-ECB deal in its entirety but for this bailout to be used to dilute the relevance and place of the Irish language in the Constitution is an absolute disgrace and an affront to the people.
There has been a great deal of discussion over the past number of months if not years about the potential loss of Irish sovereignty and the fact the IMF-ECB deal in itself resulted in a loss of sovereignty. To have our language diluted and treated in this way at the behest of the IMF in order to rush through material is completely unacceptable. If the matter is put to a vote I will be supporting motions Nos. 15 and 16 tabled by other Senators rather than our motion No. 14, because the intent is the same. It is important we defend the Irish language. I cannot see the reason that the translation cannot take place at the same time and I ask the Minister to respond to those concerns.
Fáilte, I welcome the Minister for Justice and Equality and I congratulate him on the extraordinarily moving Citizenship Ceremony in Dublin Castle on 24 June, where some immigrants became naturalised Irish citizens. Long may that continue; it reminds all of us of our own renewal of citizenship.
I have a number of questions. I do not understand why the amendment of the Official Languages Act is occurring in this Bill. From where I am coming from, it is a red herring. I am a native speaker, Irish is my first language. Under the programme for Government, it was promised to review the Official Languages Act 2003 and, in my view no changes to the Act should be made before that review, with the inclusion of stakeholder in the process, is conducted. In terms of enacting good law, this section sidelines a very important issue, the Official Languages Act 2003. There are many things wrong with that Act. I am absolutely burdened and it has a really negative impact on the Irish language to have to translate everything fromIrish into English and then for all of that to be published and printed. Much of it is a waste of money. In the Abbey Theatre I use the Irish language all day every day. For every single word to be translated into the English language and to be printed can ironically do a disservice to the Irish language. Having said that, I will be supporting amendments Nos. 15 and 16.
I do not understand the reason that both amendments are in Irish and in English when the Bill is in English. Yesterday, An Coimisinéir Teanga, Seán Ó Cuirreáin, said he was looking forward to a very comprehensive review of the Official Languages Act 2003 and acknowledges the fact - I will read it out in Irish:
Maidir le ceist chonspóideach na bhfoilseachán oifigiúil a chuirtear ar fáil i nGaeilge faoin Acht teanga, molann tuarascáil an choimisinéara go dtabharfaí tús áite do na foilseacháin is mó a bhfuil éileamh ag an bpobal orthu, pobal na Gaeilge agus na Gaeltachta san áireamh.
Even the Coimisinéir Teanga is acknowledging that not everything needs to be printed in English to try to avoid additional costs on the taxpayer. However, I will be supporting the amendment.
Níl áthas orm labhairt ar an rún seo. Tá an Rialtas nua ag déanamh an rud céanna le gach píosa reachtaíochta a thagann os comhair an Tí agus ag déanamh rudaí ar bhonn ad hoc. Maidir leis an rún seo agus an chuid seo den Acht, section 46 refers to Acts of Oireachtas, it does not refer to developments plan, official translations or anything else. Let me read Article 25.4.4o of the Constitution:
I gcás an tUachtarán do chur a láimhe le téacs Bille i dteanga de na teangacha oifigiúla agus sa teanga sin amháin, ní foláir tiontú oifigiúil a chur amach sa teanga oifigiúil eile.
Where the President signs the text of a Bill in one only of the official languages, an official translation shall be issued in the other official language.
In my view this section is clearly unconstitutional and it might be wise for the President to consider that if the Bill is passed and she is asked to sign it into law. It seems to be completely unconstitutional that we have a legislative provision that allows the publication in any format in one official language only, whether it is Irish or English. This has nothing to do with how many people speak Irish or English or the very worthy comments of the Minister on the languages we should be teaching our immigrant population. It has nothing to do with county development plans or the excessive translations that go on there. This is about the Constitution and whether we adhere to it and whether we continue to do so. This is the only country in the world that cannot publish its legislation in both official languages at the same time. There are countries with three or four official languages and they are well capable of publishing legislation in their official languages. It is a crying shame and a national embarrassment that we cannot do this. It was raised and I am thinking of three Fine Gael Members, Senators Conway, Keane and Mullins, who spoke very eloquently before on this issue. I do not expect them to disobey the whip and I would not ask them to do it as I would not do it myself, but I plead with them to talk to their Ministers about this. It has happened on an ad hoc basis to a number of Bills before the Oireachtas. Now we have legislation which purports to amend the Official Languages Act, which is not within the domain of the Minister in my understanding. Has the Minister with responsibility for the Gaeltacht given his views? Will the Minister explain the views of the Minister for Arts, Heritage and the Gaeltacht on this issue? The Minister accused me, wrongly, yesterday of seeing a scandal around every corner. I think it is scandalous that we cannot publish legislation, as is required by the Constitution. This is not a question of whether something is ideal, as one Minister said last week when she said it would be ideal if we could publish it. It is a constitutional imperative; it is the right of the Irish people.
We must comply with the Constitution. We must give our national language the respect it deserves. If we are not prepared to publish legislation, the laws of the land, in both languages as we are required to do, how can we expect people to speak Irish and to try to develop the language? We can have all the debates we want about stádas na Gaeilge in this House but we cannot publish legislation in Irish. I am appealing to the Minister to withdraw this section and accept the amendments that have been tabled. It would be useful if legislation in both languages were published on the Internet. That is what our amendment requires. People do not purchase the Bills from the Stationery Office: a printed copy of this Bill costs €4.57. Everybody gets legislation off the Internet. That is the way of the world. If we are serious, we must react to modern times in complying with the Constitution. In complying with our culture, history, traditions and the future of the country, we should be requiring that our legislation is published in both official languages. I believe it is a requirement that we do so.
Ní raibh a fhios agam go raibh cainteoir ó dhúchas - an Seanadóir Mac Conghail - in aice liom anseo. Ní cainteoir dúchais mise, ach tá cúpla focal agam. Tá sé ráite ag Conradh na Gaeilge go bhfuil lagú á dhéanamh ag an Oireachtas. Ba mhaith liom ceist faoi sin a ardú. Deirtear go mbeidh cead ag an Oireachtas Achtanna a fhoilsiú ar an Idirlíon in aon teanga amháin. Níl sé ráite sa Bhille cén teanga atá i gceist. It is a bit of a flaw that it is not specified in the Bill. In my innocence, I might presume it would be published in the Irish language, as the first language of the country, rather than in the English language.
We are moving in the age of the Internet. We always compare "snail mail" with Internet mail, and efficiencies with inefficiencies. I want to know the reason for any change being made that will affect the Irish language. It is important for this House to do what it can to safeguard the Irish language. I note that the Bill provides for Acts to be published "in one official language only". It does not state which of the two languages it is intended to use. I presume it is the Irish language, as the primary and first language of the State. If this legislation were challenged in court, I think this would be found to be a weakness in it.
If this change is being made in the interests of efficiency, I suggest we should specify the language in which the legislation should be published. It could then be published in the second language within three or four days if there was a reason for it. If, for example, we were introducing emergency legislation to prohibit a doctor from coming to this country to save a person's life, one might argue for pig iron that it should be prepared in Irish as well as in English. One would not want to stand in the way of saving somebody's life, but one would want to strive to ensure the Irish language has as much precedence as the English language. Having said that, one has to be reasonable.
I want to know the Minister's reasons for this measure. I have not heard them. Why has it been decided that this change is necessary at this time? If the Bill were to provide that the legislation be published on the Internet in the other language "without delay", a concrete number of hours or days should be specified. That would give people confidence that we were not weakening the language in any way. If we were trying to deal with a life and death situation, that is one of the ways I would look at it.
Senator Mac Conghail seconded the amendment before the House. My understanding is that he spoke against it, in a way, by suggesting that not everything should be published in Irish and in English immediately, with every "t" crossed. If I could get some information-----
I am trying to differentiate between the possible reasons for this measure. I am asking the Minister whether this is being done to make a difference on the Internet. Will the Minister provide for a timeframe? Will he say whether it would be published within hours if it were a life and death situation? I do not know what the reasoning behind this is.