Tuesday, 28 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Committee and Remaining Stages
I move amendment No. 1:
In page 6, line 2, after “provisions” to insert the following: “and continue in operation until the 9th day of November 2020, unless a resolution approving of its continuation has been passed by both Houses of the Oireachtas”.
I referred to this amendment in my Second Stage contribution. I will begin by saying that the composition of the group of justice spokespersons has changed in the Seanad, as has the Minister, but it was my experience from sitting on the Joint Committee on Justice and Equality and holding this brief for Sinn Féin in the previous Seanad that Members by and large worked collaboratively, engaged with one another and did not fall into the more common, perhaps combative, back and forth that one might see in other areas. That is how I will approach this term and I look forward to the same spirit prevailing among other Seanad colleagues and the Minister. That will be important. Except in times when it has been absolutely necessary, we have shown that we can work together. Much of the legislation that we will deal with is about keeping people safe, which is something on which we can all agree.
I do not want to delay this legislation, and it is important to say that my amendment does not seek to do that. Nor would it if passed, because that is not what the amendment is about. It is about adding a punctuation point for us as legislators and allowing us an opportunity in the context of the Covid-19 dynamic. As the Minister rightly acknowledged, this legislation has not undergone the normal standard of parliamentary scrutiny. It affords us that opportunity should we need it - there is nothing to say that we will - to stop, take a breather and consider the issue again. As others have stated, there is more to this legislation than the Covid-19 emergency response. While I do not necessarily take issue with those proposals, it would do no harm in the absence of earlier scrutiny and given the more rushed process today to revisit the legislation and re-examine it. This is not about us being obstructive. Rather, it is about strengthening and further enabling this legislation by taking the opportunity to re-examine and make its provisions stronger for all of the reasons and more outlined by other Senators and me so that the necessary change being sought can be the best it can be.
In the first instance, I would not ascribe for a moment motives of obstruction or delay to Senator Ó Donnghaile. It is a perfectly reasonable amendment and has its place, but I do not believe that place is in this legislation.
In his contribution on Second Stage, Senator Mullen referred to the provisions in section 7, which insert section 11B into the 1962 Act and refer to circumstances "resulting from a pandemic, catastrophic event or other occurrence leading to mass fatalities". He lamented the idea that such circumstances might be foreseeable. We all know that they are not, just as the extent to which the Covid crisis has affected the system was not foreseeable. What the Bill tries to do - I do not just mean in respect of the measures on coroners, but the entire Bill - is put in place contingencies to allow the State to deal with these unforeseeable circumstances as, when and if they arise.
I am not afraid of sunset clauses. They are a very good idea as a general rule, but the difficulty is that I cannot envisage a scenario where we would want to undo these provisions. They are contingencies for an unforeseeable eventuality. That is why the amendment does not have a place in this legislation. The provisions being proposed in the Bill are contingencies that are necessary and they must remain. We cannot include them if, in a couple of months' time, we might decide that such circumstances are unlikely to occur, given that we do not know. They are protections for all of us.
In the past week or two, I stated that we would be challenged. These are difficult times. It makes our job particularly difficult when one is in opposition and there is such a mass gathering in government, as is its members' call.
This amendment should be included in the legislation. If circumstances change, we can reconvene. In one of his speeches to the House, the then Taoiseach, Deputy Varadkar, talked about the role of the Seanad in scrutinising, improving and polishing legislation. It would be a sad day if the Government stood here with its vast numbers and told us "No" every time it proposed legislation, which it could do. That would not be good. Our job is to scrutinise legislation. The amendment is a reasonable and appropriate intervention. I have no difficulty with a sunset clause. If circumstances change, we could revisit the legislation. These are the Houses of the Oireachtas. If a certain set of circumstances arise following any legislation, I would do nothing but expect the Minister to come to the Houses and seek to change it and engage with people. Let us recognise the challenges.
The amendment is a reasonable proposal and I am supportive of it. I encourage Senator Ó Donnghaile to call a vote on it. If we believe in something fundamentally, we should come to the House with a sense of confidence, articulate our views, point out the reasons for an amendment and make our strong case. Ultimately, the House speaks through the mechanism of a vote, meaning its decision is on the record of the House. This is an appropriate amendment and I urge the Senator to press it and, if necessary, call a vote.
With such an inspiring rallying call, how could I not? I thank Senator Boyhan.
I listened to Senator Ward. My experience on justice matters in the Seanad is that they have been conversational. Members have engaged with and listened to one another and spoken out on matters about which we feel strongly. I would probably concede the Senator's point more broadly if the Bill presented to us today, and certainly in how it was presented beforehand, pertained solely to the issue of the Covid-19 emergency and other such crises and emergency situations. For example, Chapter 3 has nothing to do with the emergency measures and should have been subjected to pre-legislative scrutiny. That is one of the reasons there is no harm in us adding that punctuation point and breathing space for us down the line. As Senator Boyhan stated eloquently, if it comes to that time, we could still be supportive of this legislation. The Minister has acknowledged that she will be introducing other measures in the autumn. We will look to assist that process where we can. I do not see why the other aspects of this Bill that are somewhat removed from the Covid-19 crisis and our response to it could not have been left until the autumn as well.
I do not want to postpone the inevitable. I will be pressing the amendment and calling a vote.
I thank the Senator for raising this issue. These are not ideal circumstances in which to pass legislation.These measures, however, are different. It is not just, as Senator Ward has outlined, that they are contingencies for unforeseen eventualities. They are also changes, many of which have been sought for some time, that happened to be needed to try to deal with Covid and to ensure there was not a backlog and that justice could be served. They will benefit not just the Judiciary and the legal professions but also our citizens, and they will be of enormous benefit to those working at and attending our courts. They confer mostly a longer term benefit but they are needed in the short term too.
I am not sure what other way we could have introduced these measures. Other provisions could have been brought forward but they were not really relevant for now to combat the challenges we face with Covid, so we have not brought them forward. We have dealt only with the ones that have been asked of us and that we believe will create the greatest support for the Courts Service. I accept the point the Senator raised but I believe that this provision is absolutely necessary at this time.
In many ways we have a consensus here but I reiterate for the record that the amendment will not delay any of those demands. I fully accept that many of the demands are necessary and come from within the sector. It is about freeing up backlogs and helping people who work within our courts system. I have no issue with that and I do not disagree with the Minister in that regard. If the amendment passes, that will still happen. It will not hinder any of that. As has been articulated, it will give us the opportunity to stop in the autumn and to take another look at the issue. I recognise the context of how business has been done in the House in recent times, but this would not do any harm and it would be good practice for us to stop, take a breather and re-examine the matter. I do not disagree with the Minister on the need for these changes. I support the need for them and the amendment is not about delaying or hindering those changes in any way.
Garret Ahearn, Niall Blaney, Jerry Buttimer, Malcolm Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Michael D'Arcy, Paul Daly, Aidan Davitt, Aisling Dolan, Mary Fitzpatrick, Robbie Gallagher, Róisín Garvey, Pippa Hackett, Seán Kyne, Vincent P Martin, John McGahon, Erin McGreehan, Eugene Murphy, Fiona O'Loughlin, Joe O'Reilly, Pauline O'Reilly, Mary Seery Kearney, Barry Ward.
The section concerns statements of truth, a matter that was raised on Second Stage and that was a subject of focus previously in the House. To be clear, section 20 will provide for "the lodgement or filing of a document with, and the making of an application to, a court by transmitting the document or application by electronic means". Clearly, it is very welcome that such an adjustment to the way things are done will be made in the interests of efficiency and so on, and providing that documents, applications and so on can be made by electronic means is to be welcomed. It is within that context, as I understand it, that section 21 arises, where it is provided that rules of court may make provision for a statement, known as a statement of truth, to be made and transmitted by electronic means in place of the affidavit or statutory declaration concerned.Section 21(2) then sets out the specifics, providing that a statement of truth "may be in electronic form", should "contain a statement that the person making the statement of truth has an honest belief that the facts stated therein are true" and "may be signed by the person making it by that person entering his or her name in an electronic format". This provides for it to be done electronically. It is left to the rules of court under section 21(2)(d) to provide for "other requirements" about the "verification" of such a statement of truth.
It seems to me that the main efficiency achieved here is the provision that documents can be submitted electronically. When we are talking about affidavits or statutory declarations, the question arises of the seriousness of such documents in presenting evidence to the court. It seems to me that there are two dimensions to what is involved with the statement of truth. One is the idea that instead of an oath or affirmation, there is this statement of truth. The second question is whether such a statement is required to be made in the presence of another person. As I understand it, the section amends or abolishes the requirement for a deponent either to swear an oath before God or to make a more secular affirmation, which is already provided for when swearing an affidavit.
I mentioned previously that the director general of the Law Society said it was embarrassing that a deponent should have the option of indicating their religious faith when swearing an affidavit. That comment was unfortunate because it illustrates a certain attitude of official Ireland that anything with even the most cursory or inconsequential reference to religious faith should be abolished as being somehow out of date or offensive to other people. There is something of a scratching of a secular itch going on here when one considers that there is already the alternative possibility of a secular affirmation anyway. As I pointed out last week, the real lack of pluralism that exists and is not being addressed by this Bill is where a newly elected President or newly appointed judge has to make a religious oath. I am thinking in particular of a President. That is obviously a discussion for another day because it has a constitutional dimension to it.
It is worth noting that the Seanad has a prayer as Gaeilge and in English preceded by 30 seconds of silence. This offers a better model for modernisation than what is proposed in this legislation. I was on the Seanad Committee on Procedure and Privileges when we came up with this new arrangement on foot of a proposal from Senator Bacik to dispense with the traditional Christian prayer in English and as Gaeilge. I proposed at the time that we should recognise the solemnity of all legislators who gather, of whatever religious faith or none, and this was accepted by everybody including Senator Bacik. The 30 seconds of silence addressed that in an inclusive way, but at the same time we avoided the lowest common denominator or the dispensing with tradition by maintaining the existing prayer after that. I think people found that the atmosphere surrounding the whole thing was greatly improved by the change we made.
In a similar vein, when it comes to trying to put new structures in place to reflect different times we should avoid an either-or mentality and seek always to achieve a both-and solution or approach. I think that what is proposed here would tend to facilitate an attack on a genuine pluralism. I presume the Minister will respond by saying that this legislation merely enables changes to be made to the rules of court and that this is no more than an enabling provision. Nonetheless, it seems to envisage the abolition of the requirement to swear an affidavit before a solicitor or commissioner for oaths. Does it do more than that? Does it envisage that even the option of swearing an affidavit before a solicitor or commissioner for oaths would be removed? I would be grateful if the Minister would respond to that question. What precisely is envisaged to happen? Is it that there will no longer be the possibility of swearing an affidavit, or in the alternative, either making an oath or affirmation? There is a big difference between swearing an oath using a religious or secular formula in the presence of a law officer, and simply signing on the dotted line and returning a scanned statement of truth by email.
This speaks to the second aspect of what I am talking about, which is the removal of the fail-safe requirement to present before another person or official.In the end, when we talk about efficiency, much has already been achieved by permitting the filing of documents electronically. Does it really prevent efficiency that when it comes to the making of important legal statements, there must be a requirement of presenting before another person? The fact that the law now seeks to provide for a statement of truth where it could simply penalise any false statements knowingly made or any statement that was false where the person lacked an honest belief that it was true. There is clearly a recognition that there is a need to confront people with the seriousness of what they are doing. Otherwise one would not be thinking up this alternative formula of a statement of truth. The law would merely provide that if it is not true and if a person did not have an honest belief in its truth, then that person has committed an offence. There is a desire to maintain seriousness here by requiring the statement of truth. I am suggesting that that seriousness is frustrated by the dispensing with the existing formula in its current varied form.
It was mentioned to me by a colleague here that there are certainly judges down at the courts who are concerned about the existing cavalier way that some people have of treating oaths, sworn affidavits, and so on. B’fhéidir gur sin scéal eile go lá eile.
I am concerned that what is happening here would reduce the pretrial submission of evidence in civil proceedings to a box-ticking exercise and might increase the chance that false evidence would be introduced because it would not be viewed as seriously by those submitting these statements of truth, notwithstanding the severe penalties for making a false statement provided for in this legislation.
To make a simple comparison, when a person fills out a passport application or an application to register to vote, they are required to complete a section of it in the presence of a member of An Garda Síochána, the reason being that this operates as a fail-safe. It applies some measure of verification, imports an atmosphere of seriousness to what is going on, and compels applicants to take the process seriously. If that requirement were abolished, does the Minister consider that there would be fewer or more false applications made for passports or for inclusion on the electoral register? I would say that there would surely be more. I fear that the same might be said about these statements of truth.
To summarise on the core issues, this is a false concept of pluralism - if that is what is at work here, and I would be grateful to hear the Minister’s view on this - in proposing to replace the making of an oath or affirmation with a statement of truth.I am interested in hearing the Minister's view on the reasoning behind this provision. The possibility that this could be done electronically and without the requirement for a person to present to a third party or official appears to be envisaged in the legislation. What is the Minister's view on that matter? Does she agree with me regarding the potential loss of an important fail-safe here?
I would also like to ask an overarching question. Am I correct in stating that the legislation, in providing for a statement of truth, refers to situations where, under the previous section, documents may be or may be required to be lodged electronically? Is it thought that there will be other documents that may not be permitted to be submitted electronically and that, therefore, would not be covered by this provision in the context of the statement of truth?
I want to address a couple of issues Senator Mullen mentioned. I understand the point he is making about pluralism. It is a matter for the Minister to outline the rationale behind this section. It seems to be more from the point of view of facilitating the electronic transmission of documents than addressing a wider pluralistic point. It is important to draw the distinction between the different types of document required to be witnessed. Senator Mullen made reference to passport applications and registering to vote. In the case of a passport application, although I stand open to correction, I understand that the signature of a member of An Garda Síochána is primarily for the purpose of attesting to the person's identity rather than to the veracity of anything that was said in the context of the application. I do not think that an instance of standard voter registration has to be done in the presence of a garda, it is only entry onto the supplementary register that requires this. Again, this is to do with the identity of the person, which is demonstrated to the garda before the form is signed.
The other key difference between those examples and the instant case in this Bill is that the Passport Act and the Electoral Act both provide for specific penalties for people who lie when completing those forms. The legislation before us brings a specific, significant penalty, at both summary and indictable level, of up to five years in prison in respect of a person who makes a declaration of truth without honestly believing it to be true. That contrasts quite sharply with other kinds of documents, such as an affidavit. A person signs an affidavit, usually in the presence of a commissioner for oaths or a solicitor, and attests to the veracity of the statement he or she has made. The signing of the document in the presence of the peace commissioner is only to prove that the person signed it and to attest to their identity. None of these provisions actually secures the veracity of the statements made in any of those documents. Every Member of this House at least once if not twice a year signs a statutory declaration in the context of returns to the Standards in Public Office Commission. We are obliged to do it all the time. Those statutory declarations have force of law and carry penalties for any mistruths or deliberate inaccuracies contained within them.
The point I am trying to make is that this measure facilitates the going online of certain processes. It does away with an antiquated practice, notwithstanding what Senator Mullen said - and I have some sympathy with him - in terms of the requirement to be in the presence of a particular person, sign a document in ink on hard paper in front of that individual and for that document to be physically transmitted to the relevant court office. My understanding of section 21 is that it specifically enables us to move beyond that to a point where this will be done virtually, without ceding any of the protections that exist, making it any easier for people to falsify information or making it more permissible for people to render an untruth to the court. In fact, quite in contrast to the situation that currently exists with respect to affidavits, the provisions in section 21 (5) lay down strict penalties for those mistruths or misdeeds.No such offence exists, to my knowledge, in statute. Contempt of court obviously exists in common law. This week alone, we have heard reference to the Perjury and Related Offences Bill 2018, which has already been through this House and is in the other House, specifically to address exactly these issues that are not provided for in statue law as it stands. There may be common law provisions, contempt of court provisions and so on. However, I respectfully suggest to Senator Mullen that the present Bill puts on a much firmer footing the seriousness of such a declaration and the penalty that comes with making it wilfully or without regard to its seriousness.
I apologise as I had intended to address this issue in my previous remarks. These provisions are not meant as an attack. What is envisaged by them is nothing more than what is set out here. The intention is that this should be an alternative. It is not meant as a replacement. The rules of court may provide for a statement of truth in place of an affidavit but this is obviously where the person so wishes. It is to try to ensure that we can create an efficiency, particularly in the context of the Covid-19 crisis and the inability of people to be able to sign a document in the presence of the required persons. This has been available to people, more so in Dublin, but in the more rural areas it has been a challenge. It is simply to provide greater efficiency, not to replace what is there. Following on from that, in the case of somebody giving oral evidence, a person can still be asked to give evidence on oath whether they have provided a statement of truth or an affidavit. We are not talking about removing the swearing of an oath or signing of an affidavit. It is meant as an addition to provide a greater efficiency where it is potentially not possible but it does not remove that possibility for a person who wishes to do so. That and nothing else is what is intended here.
I thank the Minister for her reply and Senator Ward for his very helpful analysis. I have much sympathy with that analysis. There is a great deal to be said for efficiencies here. I still think, and it probably has to be said, that the commentary and reaction of the Law Society to this was unhelpful. To some degree, it raises certain issues that may not actually arise at all, depending on what the relevant committee produces in terms of options. There is a big difference between getting rid of the requirement of an oath or affirmation arising out of some document of secularism or some misconceived definition and inaccurate grasping at pluralism and making issues more efficient. That said, we will have to see what the relevant committee produces by way of an option. I still think there is a validity to my comparison with the Passport Office and the supplementary electoral register. I thank Senator Ward for that clarification also. While he is correct to say that what is being proven by presenting oneself before an officer of the Garda Síochána goes to the issue of the identity of the person, in the end it all does come down to veracity. If someone signs up to who he is and he is not telling the truth, that is the issue. I would submit that it is veracity as to identity.
The more important point here is the question of whether it is antiquated to require a person to appear before a third party when preparing information that is to go before a court, or whether it is a necessary fail-safe. Whether, in appearing before that third party, one makes a religious oath, secular affirmation or statement of veracity that carries criminal sanctions if it is a false statement, need not detain us for the purpose of considering whether there ought to be the requirement to appear before a third party when preparing documentation before the court. I remain to be convinced that it would be a good idea. The legislation does not specifically indicate what the desired outcome is to be. I am not convinced that it is a good idea not to require something of people when preparing documentation that goes before a court and that involves evidence and claimed statement of fact. It seems to me that while it is good to facilitate efficiency by providing for the making of electronic statements, requiring some form of presentation to a third party be it an oath or statement of truth does not necessarily clog up the system or cause unnecessary delay.
I wish to reassure the Senator that this is not a pluralist measure but a reform that allows the rules of court to be made, allowing a statement of truth to be made and communicated electronically. It is not in place of swearing an affidavit or oath.
Government amendment No. 2:
In page 33, between lines 21 and 22, to insert the following:
“(c) a reference to a person being required to produce a document to a designated body shall be construed as a reference to the person being required to send by post, transmit by electronic means or otherwise deliver the document to the designated body;”.
Earlier, I outlined the provisions of the Bill on Second Stage and informed the House I would bring in this amendment. It is a small technical amendment. Section 31 provides for the designation of bodies by relevant Minsters for the purposes of holding hearings remotely. Under the provisions the Ministers may designate bodies that may hold remote hearings, and persons who would otherwise be required to attend in person can be required to attend remotely. Designated bodies will also have power to determine, following representations from the subject of the hearings, whether the holding of a hearing remotely would be unfair to that person or contrary to the interest of justice. Having considered the matter further, I believe it would be useful to clarify in the Bill that where the subject of the remote hearing is required to produce a document to a designated body, it can be sent by post, electronically or otherwise delivered to the body.
The second element of the amendment broadens the definition of the term "hearing" in section 31. This amendment will provide greater flexibility to the designated bodies. It will also allow them to conduct entire hearings, parts of hearings or the hearing of an appeal or part thereof, remotely. It is a small amendment to the Bill but it is essential. I commend it to the House.
Section 31 of the Bill provides for the designation of bodies by relevant Ministers for the purpose of holding meetings remotely. A person required to attend a hearing in person shall be required to do so by remote means and the designated body shall have the power to make any arrangements to conduct the hearings by remote means. Designated bodies will also have the power to determine, following representations from the subject of the hearings, whether the holding of a hearing remotely would be unfair to that person or contrary to the interests of justice. It is at the discretion of the Minister whether to designate a body under his or her remit, again by order. Following the publication of the Bill and having consulted with other Departments it was decided that it should be clarified that where the subject of the remote hearing was required to produce a document with a designated body, that document should be sent, and could be sent via delivery post or electronic means. The amendment has been drafted and presented as the sole Government Committee Stage amendment in the Seanad.
The second element to the amendment broadens the definition of the term hearing in the section. The amendment will provide greater flexibility to designated bodies, will allow them to conduct entire hearings, part of the hearing and hearing of an appeal, or part thereof remotely.