Dáil Éireann debate -
Thursday, 19 Mar 1981

Vol. 327 No. 11

Courts Bill, 1980: Committee Stage (Resumed).

Question again proposed: "That section 2 stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Section 2 of the Courts Bill is the section which increases the jurisdiction of the Circuit Court from £2,000 to £15,000. I am afraid that it will be difficult if not impossible for litigants with no money or limited means to arrange for the attendance of expert witnesses from the city of Dublin in various circuit courts throughout the country. It would be particularly difficult or impossible to arrange for the attendance of busy medical consultants whose first duty is to be available in their hospitals. The Minister said that he did not see any such difficulty. From experience I know that it is very difficult to arrange to have witnesses in country circuit courts because it means a considerable absence from their base. As Depcan console themselves with the realisation that I cannot be in two places at the one time. I was at a meeting of the Council of Ministers. If I did not attend those meeting we would not have made the progress we made with regard to the Celtic Sea and the herring ban which we hope will be lifted this year.

I should like to thank Deputy Collins for raising this matter now, thus giving me a second chance to explain it to the House. I was surprised that the Opposition did not accept my invitation to raise the matter seeing they considered it so urgent last Thursday. I find that interest in the fishermen's problems which appears so urgent in the afternoon wanes once nighttime comes. Nevertheless, I am glad to deal with the matter today.

I notice the Deputy made copious use of a document presented by the salmon and inshore fishermen in order to make his case. He said also that 1,000 tonnes would not be enough, but the fishermen indicated that as a last resort 1,000 tonnes would be sufficient for the needs of the 500 people whom the Deputy mentioned. Deputy Deasy spoke of a disastrous year, but we must remember that the volume and the value of landings in the past year was the greatest we have ever had.

Mr. Deasy

Not on the south coast.

Mr. Power

With regard to loan repayments, every case will be considered individually and loans will be recast three times if necessary. The EEC regulation to close the Celtic Sea for herring fishing was taken on 1 March 1977. That was during the ministry of that intrepid soldier, sailor, yachtsman and would-be commodore, Deputy Donegan. I am sure he is well known in the Dunmore East and Waterford areas, not alone for the closure of the Celtic Sea but also for other exploits on the seas off the Waterford coast. His period as Minister was shortlived and after the general election in 1977 it was left to the incoming Minister, Deputy Lenihan, to apply the regulations and impose penalties in Irish law.

I am not criticising the former Minister for that decision. It would have been very irresponsible of him if he did not close the Celtic Sea, but it would be equally irresponsible to open the Celtic Sea before a reasonable improvement in stocks has taken place. The reason given for the closure is the reason given by ICES, namely, the depletion of our stocks. In 1977 the stock of herring in the Celtic Sea had fallen to 6,000 tonnes. Today it is not much better at 13,000 tonnes, the estimated figure at 1 April 1980. Scientists reckon that the biomass needed for regeneration and complete recruitment would be in the nature of 40,000 tonnes of herring to allow for normal fishing and to allow each herring to spawn at least once. In 1977 our fishing efforts there were very dependent on three-year old herring. Every year the fisheries have been monitored. Our biologists have examined the stock each year and have taken larval tests and young herring tests. I am friendly with the biologist concerned and have kept in close contact with him on this matter. Early last year the state of play appeared to be good. The recovery rate was quite good despite illegal fishing. I can give details of this matter privately to the Deputies opposite if they are interested.

There was also the matter of bi-catch damage. Last year a bi-catch was allowed of 5 per cent for mackerel and 10 per cent for sprat fishing. One of the first things I got done at the meeting of the Council of Ministers in December 1980 was a ban on bi-catch and foreign vessels were singled out, as they were by Deputy Deasy tonight. The allegations made, of which the Deputy claims to have proof, have never been substantiated. Despite numerous boardings by the Navy they have never found evidence to suggest that there were herrings on board that were caught illegally.

In February 1980 I indicated that my chief aim was to have the Celtic Sea opened and I was optimistic it would be done. I raised it at every meeting of the Council of Ministers I attended and in January I raised the matter of compensation during the term of the Italian Presidency. The proposal for compensation arose when I was dealing with the question of having juries provided in Circuit Court cases. I pointed out that we are now changing the jurisdiction from £2,000 to £15,000. This is a very big extension of the jurisdiction of the Circuit Court.

It is my view that, when we are dealing with cases of that magnitude, it is necessary to have them heard before a judge and jury. Juries are composed of ordinary citizens. They have a grasp of what is happening and they understand ordinary day-to-day living better than some of our judges who are better off than many members of juries. Where desired and requested by plaintiffs, and by defendants if necessary. Circuit Court cases should be tried before juries. Dealing with this section the Minister stated that at present there is a very strong lobby in favour of the total abolition of juries in civil cases.

Minister of State at the Department of Justice (Mr. Doherty)

I agree with the Deputy.

Mr. Enright

I thought this over last night and this morning and I am concerned that the Government may be thinking of abolishing juries. I am totally opposed to that.

An Ceann Comhairle

Does the Deputy not feel that we have discussed the jury aspect sufficiently? Strictly speaking, this is not related to section 2. There has been a very long discussion on the question of juries.

Mr. Enright

We are making a very fundamental change here and the full position should be put on the record of the House.

An Ceann Comhairle

The Deputy will agree that we are repeating what has been said on quite a number of occasions by the Deputy himself and by other Deputies.

Mr. Enright

I am looking for a clearer statement from the Minister. I will be concise but I believe it is necessary to say this in the House.

An Ceann Comhairle

The Deputy will have to be very brief because this is repetition.

Mr. Enright

What I want to say arises from what the Minister said. This is Committee Stage and the matter should be teased out and discussed at length if necessary. The Minister spoke about the strong lobby in favour of the abolition of juries. I want to put on record who is leading this strong lobby. It is being led by the insurance companies in Ireland. They are a multi-million pound lobby with plenty of muscle. While it might be in their interest to have juries abolished, it is certainly not in the best interests of the ordinary private citizen. The jury system is the safeguard of the ordinary citizen. The total abolition of the jury system in civil cases, in torts and running down actions, would be detrimental to the administration of justice. We will be putting down amendments on Report Stage.

We are moving from a jurisdiction of £2,000 to a jurisdiction of £15,000. The only people who will benefit from this are the insurance companies, and not the ordinary citizens. It is our duty to protect people who are not in a position to help themselves. The insurance companies are well equipped to look after themselves. The only way to protect the rights of the ordinary citizen is by retaining the jury system. On the other side of the coin we have this strong lobby with plenty of muscle. The Minister should take his courage in his hands and come out clearly and decisively in favour of the retention of juries in Circuit Court cases and in all cases.

On this side of the House we are very much in favour of the continuation of the jury system. This party will fight to maintain it. I hope the Government party will ensure that it is retained in these cases. It is absolutely essential because, the day we do away with juries in civil cases——

An Ceann Comhairle

This is repetition. We will never make any progress at this rate. The Deputy has made his case. I have already said it is not relevant to section 2 because no change is proposed in section 2 in relation to juries in the Circuit Court. The Deputy has spoken on this matter on quite a number of occasions. I would ask him now to please move on to the actual section.

Mr. Enright

To clarify the position——

An Ceann Comhairle

The Deputy has already clarified it on quite a number of occasions.

Mr. Enright

The Minister made a statement. We should have a clear statement from the Government on this matter. I have stated quite clearly that we on this side of the House are in favour of the retention of the jury system. I hope we will have a similar commitment in a firm statement from the Minister giving the views of the Government party on this matter. Too many people at present have come out more or less in favour of this lobby. It should be nipped in the bud at this juncture. It is in the interests of the ordinary citizen of limited means who may be taking on financial institutions such as insurance companies that the jury system be retained. That is why I would be very much in favour of it and feel it should be restored in the Circuit Court.

Mr. Doherty

There has been mention of civil legal aid in the context of our discussions here this morning. I do not propose to discuss civil legal aid in connection with this Bill.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It is very relevant in view of my argument.

Mr. Doherty

There is no relevance to section 2 of the Bill with which we are dealing.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): There is.

Mr. Doherty

Again the Deputy raised the question of consultants. Without wishing to repeat myself. I stated yesterday that I was satisfied from a number of sources and investigations that many consultants involved in Circuit Court hearings are from local hospitals in rural areas where accidents may occur in those areas. The Deputy said in the House yesterday evening that in Dublin an easily availed of facility existed under which consultants were, so to speak, on the ground or could be contacted at half an hour's notice. In the type of specialised consultancy requirements also referred to yesterday evening, where for instance one would be seeking consultants' advice in a case where brain damage had occurred, I do not think that type of case would be found in the Circuit Court anyway, because with the extension of the limit of jurisdiction to £15,000, as proposed in this Bill, it would be most unlikely that such a case would be heard in the Circuit Court in view of the fact that the claim would most certainly be in excess of that amount and, consequently, the hearing would be elsewhere.

Concern has been expressed by several Deputies about the trial of civil actions by jury. The present position is that the High Court only has power to try such actions by jury. The right to jury trial in Circuit Court civil actions was abolished by the Courts Act, 1971, principally because it was a right that was seldom exercised. It is worth noting that the same Act also increased the tort jurisdiction of the Circuit Court to its current limit of £2,000. The new level of £15,000 proposed in this Bill has been arrived at partly on the basis of the considerations set out in the committee's report and partly to take account of the increased maximum amount which can be awarded in fatal accidents to a deceased's relatives.

There are no proposals to alter the position as regards civil juries either in the High Court or the Circuit Court. As the Courts Committee brought out and as some Deputies mentioned the present situation is that legal proceedings arising out of many motor accidents may be taken in the High Court only because of the Circuit Court's present low monetary limit. These range from cases where there is serious disablement or death, where a person with dependants is involved, to cases where the damage involved may be only the writing off of a car. I am sure Deputies will agree with me that the more serious the accident and its repercussions on the victim and his dependants, the more important it is that it be heard in the High Court where the option of a jury trial is available. On the other hand, in less serious cases, where the injuries are not of a lasting nature, where medical and other expenses arising out of the accident are very clearly defined, where the victims' earning capacity is temporarily impaired only, the amount of compensation being claimed is not likely to exceed the Circuit Court's new limit of jurisdiction. Quite often the only point at issue in such cases is whether one or the other party to the action is liable. Such cases can be as well decided by a judge sitting alone as by a jury but at considerably less expense both to the litigants and taxpayers.

It has been suggested that concentration of tort cases in the District Court and the Circuit Court might create difficulty in the provision of the necessary medical evidence because some medical consultants might be reluctant to travel to various venues around the country rather than to the High Court in Dublin. The committee have said, and I am in agreement with them, that they are not satisfied that there is real substance in these objections because experience has shown that in many cases in the High Court consultants come from outside the Dublin area. In the case of road accidents patients are more frequently than not treated in local hospitals by local consultants except in cases which develop very serious complications where it may be necessary — as, for example in the case of severe brain injury, to which I have already referred — to send cases to specialist units in Dublin.

After all, we are talking about a limit of £15,000 in the Circuit Court and in some cases the amount at issue is likely to be in excess of that figure. I am satisfied, however, that what is proposed in the Bill is appropriate to the nature of the cases concerned. In particular I would not see any merit in providing for the restoration of jury trials for some cases in the Circuit Court. I am aware also that there is a strong body of demand for the total removal of the right to jury trial for neligence cases in the High Court — I am in agreement with Deputy Enright when he referred to that strong lobby here yesterday evening — or otherwise, that the jury should have no say in the determination of the amount of damages. This is a far bigger issue than was raised by the Deputies who spoke on the Bill and I do not propose to go into the merits of the issue on this occasion. Clearly it is outside the scope of the Bill before the House.

It was also suggested here this morning that the Government proposed the abolition of the jury system or intended to seek its abolition.

Mr. Enright

No, I did not say that. I am saying that I would be nervous and I wanted a statement from the Government to ensure that they were committed to the retention of the jury system.

Mr. Keating

I am sure the Taoiseach would agree with that.

Mr. Doherty

In this Bill we are not dealing with the removal or abolition of the jury system. That has been dealt with already in the Courts Act, 1971. We are dealing with the Circuit Court, which does not have a jury system since then and, as Deputy Fitzpatrick stated here yesterday evening, had not a jury system to any large extent prior to 1971. Deputy Fitzpatrick rightly made that point yesterday evening. Also it must be noted that prior to then the demands made for juries in the Circuit Court were very few. At some stage I will be in a position to give the House figures in that connection, that is, of the number of juries that sat in the Circuit Court. I want to put it clearly on record that this Bill does not propose to abolish the jury system. Certainly, from the Government's point of view no suggestion or interpretation could be taken from anything I say here that the question of abolition of the jury system is a matter for consideration at all.

I should like to refer to a comment made by Deputy Fitzpatrick in relation to the list system. This is not a function of the Minister for Justice. I agree with Deputy Enright that difficulties arise in that connection. I further agree that the new administrative arrangements being considered at present might go some way toward álleviating the situation. At the same time it is primarily the responsibility of the county registrar, as Deputy Fitzpatrick said, in many instances in consultation with the judge, who might wish to be accommodated or to be accommodating. As was suggested here by Deputy Enright, the Local Bar Associations and county registrars should take note of the point made and take it up seriously. I am satisfied that there is enormous room for improvement in this area but, other than to make a comment of agreement, I cannot enter into an area in which the Minister for Justice has no function.

Mr. Keating

On a point as yet not referred to, might I ask the Minister to comment briefly on what appears to be another area of dissatisfaction or, at the very least, an anomaly? This relates to the proposed increase in jurisdiction of the Circuit Court in this section in relation to property, under which it is proposed to increase the present poor law valuation limit of £100 to £200. My understanding of it is that, as a result, by far the greater number of properties in the country would come within the jurisdiction of the Circuit Court, that virtually all property would fall within the ambit of that court. However, the Bill says that the jurisdiction which the court would have in the area of award of damage in contract in tort would be limited to £15,000, but the area with which it can deal in relation to property appears to be virtually unlimited. For example, take a farm of the value of perhaps £750,000, perhaps even £1 million, depending on where it is situated and the price per acre. Is that an anomaly? Is that a contradiction? I cannot see the logic for it. I should like to know if the Minister can and, if so, I should be grateful if he would let me know what it is.

Mr. Doherty

All we have done in this regard is to increase the valuation limit from the old figure of £100 to a figure of £200. The tort limit has been increased from £2,000 to £15,000. I note the point the Deputy made in relation to the anomaly vis-à-vis the value of land in, say, an estate worth so much. I am sure that when the limit stood at £100, as it still does, there was a situation obtaining in which there was an apparent anomaly. The reality is that we have updated the jurisdictional limits in both cases. This also has been the subject of very definitive discussion by the Courts Committee and we have no reason to refuse what is proposed.

Mr. Keating

In this context I am going to leave out the question of discussion and so on. It is the Minister's job to take decisions and I do not think we should fall back on therapeutic supports from discussions and rules that none of us knows anything about. If, as the Minister has implied, an anomaly existed——

Mr. Doherty

——I did not imply that.

Mr. Keating

I gather that the Minister of State said that was the situation.

Mr. Doherty

I referred to the apparent anomaly which the Deputy said existed.

Mr. Keating

It is our job to get rid of such anomalies and make improvements. Does it seem logical that on the one hand a court's hands are tied in certain areas with which it must deal to the sum of £15,000 while in the area of property courts can deal with almost unlimited sums? I have just mentioned that, although I do not expect the Minister will do anything about it. A farm of 300 or 400 acres would certainly qualify. It seems to be illogical and contradictory. I am not concerned what it was in the past.

Mr. Doherty

I am satisfied that there is not any anomaly.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The Minister has washed his hands of the question of free legal aid. He has said it is not relevant and for that reason he does not propose to deal with it. The fact of the matter is that we are changing the venue of a great number of court actions from Dublin to rural Ireland. I concede that in a number of cases it will be more convenient to people living in rural areas where the witnesses are all local but it will be inconvenient, very expensive and to the great disadvantage of a percentage of litigants where the expert witnesses are based in Dublin. That cannot be denied. That argument is increased as are the difficulties I have spoken of because there is no free legal aid. The Minister cannot run away from legal aid and deal with one part of this problem without dealing with the other.

It is also proposed indirectly to take away the right to trial by jury by forcing litigants to litigate in a court where trial by jury does not prevail and by changing the tribunal which will hear the case from a court where there is a jury to one where a jury will not be called. From my experience I can say that it is not to the advantage of the litigant where the system of free legal aid does not operate. The change of venue in some cases away from Dublin, where consultants are available, and the change from a jury to a non-jury court in my opinion plays into the hands of big business and wealthy litigants. It is to the disadvantage of the poorer litigants or the person without money. It would not be too bad if the State introduced a system of free legal aid such as that which operates in the jurisdiction across the water. Then if a person had a prima facie case he could bring it to the court and have his expenses and costs guaranteed before he started. That person would not be at the mercy of the multi-million pound insurance companies referred to by Deputy Enright.

When it comes to litigation we are talking about men of straw and people without much money. Very few people can afford to finance out of their own funds a High Court or Circuit Court action that will go on for a number of days. Were it not for the fact that the legal profession here operate as far as running down actions are concerned by and large on speculation — I am not using that in any offensive way but they operate on the basis that if they win the action they get paid and if they lose they throw the papers in the waste paper basket — very few actions would be taken. A learned senior counsel who has since died told me many years ago that no matter what he was sued for in the High Court he would settle because he could not afford to have an action going on for several days.

A big proportion of the litigation here is known as running down actions and the more cars we have on the road the greater the likelihood of more such actions. Litigation here takes place between a poor litigant, one of limited means or one who cannot afford litigation, and on the other hand multi-million pound insurance corporations. Under the terms of the Bill we are making it more convenient for the multi-million pound insurance corporations and more expensive and difficult for a percentage of our people.

I accept that in some of the cases the venue will be transferred to within 150 yards of the local surgical hospital where the surgeon can be got. In such cases the surgeon can attend at the court within less than five minutes. However, on the other hand the venue of trial is being transferred from the Four Courts, where consultants can attend within less than 30 minutes, to places that will be 150 miles from the city. In such cases consultants will have to leave Dublin the night before and may have to hang around the court all day without the case being heard. In my opinion that is to the advantage of big money and to the disadvantage of the ordinary litigant. It will be to the disadvantage of the provision of justice for all.

The State is prepared to do that to facilitate a loud lobby but is not prepared to talk about free legal aid to help poor litigants. We do have a form of minimouse free legal aid system which operates in the area of family law at five venues some of which are 100 miles apart. The views I expressed are sincere and I speak as one who has had a long and varied career in the courts. I spent most of my professional life as a solicitor engaged in court work and I do not have any vested interest at present. If a change is not made the fears I have expressed will come to pass. The only way of being sure about it is to leave the jurisdiction of the Circuit Court lower than it is now. When the Minister is asked for an example he adverts to the increase in the compensation for mental distress. It is high time that the £1,000 figure was increased because that figure was fixed many years ago. The Minister is aware that fatal accidents form only a fraction of the running-down actions. Though some of my professional colleagues may not agree with me. I believe it would be better to reduce the jurisdiction to a figure lower than that proposed. We should not in any way play into the hands of multi-million groups who will use every trick, albeit legitimate tricks, in the book. For example, they will refuse to settle cases, thereby allowing cases to continue knowing all the difficulties there are for the people concerned.

Mr. Enright

Deputy Fitzpatrick has made a valid point because there are bound to arise situations in which insurance companies who, by reason of their expertise in this whole business and their constant communication with many of the top surgeons in this city, will be in a position to make arrangements beforehand with certain surgeons, many of whom have been engaged professionally by the companies down through the years so that quite a relationship has been built up between them.

Surgeons acting for insurance companies are guaranteed their fees whereas litigants of limited means would not be in a position to guarantee a fee to any surgeon. The cost of bringing a surgeon from Dublin to the west or to the midlands for a day is in the region of £250 to £300. That is a considerable amount for a litigant of limited means. The Minister understands the position fully. He has told us that he is aware of the problems of the list system. Any serious effort to tackle this system should involve the arranging of a conference between the parties concerned — the Department of Justice, the county registrars, the judges. the Bar Council and the Incorporated Law Society. The aim should be to take the chance element out of the situation. Provisional lists should be arranged about six weeks in advance with a view to county registrars having a two-week period in which to say whether they expected a case to go on. There could then be a further review two weeks beforehand. We must aim at streamlining the courts system, but the situation outlined by Deputy Fitzpatrick will continue and there will be insurance companies who will be in a position to have the best of both worlds while the litigant, the ordinary person, who wishes to have his case heard in court will be at a disadvantage. That is not good enough. Therefore, if specific days could be arranged for the hearing of cases, the ordinary person would benefit.

The Minister referred to this area as being quasi-judicial, an area in which he is limited in regard to what he can do. I accept the goodwill of the Department in this matter. I accept also that the Minister has no wish to interfere in the running of the courts but there is a great need for the setting up of a conference with a view to streamlining the mechanisms of the system because there is a serious state of disorder in regard to cases at present, especially so far as the Circuit Court is concerned. With the extension of the jurisdiction, the situation in the District Court will be even worse. It is a ludicrous situation to have perhaps 300 cases listed for the one day but that is what is happening. The Minister must take steps at the earliest opportunity possible to put the administration of the courts on a business-like basis. Only the Minister has the power to do this. All that is needed is a little coaxing and a proper approach by the Department. The buck stops with the Minister. Therefore, he must take steps to remedy the situation of serious disorder that exists at present in the courts. The situation can be compared with a lottery in that nobody knows whether a case will go ahead on any day. It is unsatisfactory to have all the people listed waiting on the same day to have their cases heard. One can visualise the sort of situation that would arise on any one day on which all of those involved with each of 300 cases showed up at court.

There would be the solicitors, the barristers, doctors, engineers and so on for each side.

Mr. Doherty

I am surprised that none of the Opposition Deputies adverted to the fact that this Bill will be the means of providing greater access to the courts for ordinary men and women and that, in addition, it will provide them with a possible opportunity to obtain a remedy in court at much less cost than has been the case up to now.

Mr. Keating

As a result of this Bill, the cost will be only a few hundred pounds whereas up to now it was unlimited.

Mr. Doherty

It has been suggested here this morning that civil legal aid applies only in family law cases. Anybody who qualifies for civil legal aid will obtain that aid to attend in any court in the land including the court that we are specifically discussing this morning, namely, the Circuit Court.

Mr. Keating

But not in all cases.

Mr. Doherty

Yes. It is a matter——

Mr. Keating

No. There are exemptions about which the Minister knows more than I do.

Mr. Doherty

——of somebody qualifying and it is the same type of misrepresentation as was made this morning when the number of civil legal aid centres throughout the country was referred to. All the Opposition Deputies, particularly Deputy Keating, are aware that there are many more centres and a commitment to provide more in the future and there is constant monitoring. As I have already stated, I do not want to get into that area.

Mr. Keating

The essential point being made here is that the civil legal aid system that exists is inadequate.

An Ceann Comhairle

Please allow the Minister to proceed.

Mr. Doherty

This is not an essential point and it is a misrepresentation of the realities. There was a comparison made as well between the free legal aid system here and the legal aid system in Britain in the context of juries and no mention was made of the fact that in Britain the jury system has been abolished in running-down cases for quite a considerable number of years and that situation does not exist here where we have the right to be heard by a judge and jury in the High Court.

Mr. Keating

They are two different things altogether.

Mr. Doherty

That point was made by Deputy Fitzpatrick this morning. I do not think the Deputy was listening at the time.

Mr. Keating

I was listening very carefully.

Mr. Doherty

Certainly the Deputy is presuming that he said something he did not say. I am telling the Deputy what he said. The situation that I am trying to clear up this morning is that we have in this Bill made a number of changes that, in the long run and in the short-term, are going to be of enormous benefit to ordinary men and women.

Mr. Enright

Lest there be any misunderstanding, let me say that the general tenor of this Bill is accepted and approved on this side of the House.

Mr. Doherty

Thank you.

Mr. Keating

We have said it time and again.

Mr. Doherty

The Deputy has never said it.

Mr. Keating

We have, time and again, endorsed the principle of extending the jurisdiction of the Circuit Court.

Mr. Enright

We are very much in favour of the general approach. We are on Committee Stage and that is why we are examining it and, if we are picking holes in it, it is part and parcel of our responsibility to do so. There is one thing I would like to bring to the Minister's attention at this stage. Now it is going to be made much easier for hire purchase companies to bring actions in the Circuit Court and get judgments for quite large sums of money, say, £10,000 relating to a tractor or machine or some type of motor car. Previously actions for amounts of over £2,000 had to be heard in the High Court but now it is possible to bring actions for up to £15,000 in the Circuit Court. The proofs in the Circuit Court and the High Court are very similar and there is a tremendous amount of care taken by our High Court judges to make sure that the proofs are in order and that the case is fully and adequately heard. My worry is that there will be a vast increase in the number of hire purchase companies and credit companies bringing actions and getting decrees against private individuals. While ease of access to the courts is very desirable, it might place people, who might eventually be in a position to pay off the debt or restrain the hire purchase company from obtaining a decree immediately because of the time span involved in High Court cases. in the position of having decrees granted against them in a matter of two or three months. In this time of recession I would hope that while it would not be made any harder for companies to have access to the courts, I would hope that it would not be made easier. I would like the Minister's views on that.

Mr. Doherty

What we have done in the Bill is merely to raise the limit to the amount in the action for tort. If there is a defence offered it will make it easier and if there is not it will not matter one way or the other.

Question put and agreed to.

SECTION 3.

Mr. Doherty

I move amendment No. a1:

In page 4, line 15, after "requires" to insert "before the hearing thereof"

An Ceann Comhairle

Amendment a1 in the name of the Minister is on the additional list. Amendments Nos. a1 and 5a are alternative to amendments Nos. 1 and 6. Amendment No. 2 is related. They can be discussed together.

Mr. Doherty

The form of words used in sections 3 and 13 as they stand at present is such that the Circuit Court has full jurisdiction to hear the matters referred to under the Married Women's Status Act, 1957 and the Family Home Protection Act, 1976. The defendant or respondent in proceedings in the Circuit Court under either of those Acts may, if the valuation of the land exceeds £200, exercise an option to have the proceedings transferred to the High Court at any point in the proceedings. It is conceiveable that a defendant or a respondent could, as a delaying or obstructionist tactic, hold off making such an application until after the commencement of the hearing. I assume that the Deputy's intention in putting down these amendments was to prevent this. These amendments have been discussed with the parliamentary draftsmen who gave the alternative amendments Nos. a1 and 5a which are in keeping with the spirit of the Deputy's amendments.

In the case of amendment No. 2, however, the form of words used in the section is quite different. Section 4 of the Bill has been drafted on the lines of section 6 of the Succession Act, 1965 which it amends. This in turn uses a formula which is used in section 22 of the Courts (Supplemental Provisions) Act, 1961. The effect of this formula is to exclude from the Circuit Court cases concerning estates where the valuation of land exceeds £200 unless the necessary parties to the proceedings sign the consent prescribed by the rules of court. This consent may be signed either before or during the hearing.

The effect of the signing of this consent is to allow proceedings which have been initiated in the Circuit Court to continue in that court even if it transpires either at the preliminary stages or at the hearing itself that the valuation of the land involved is over the limit set in the section. I will grant that this possibility is remote but it is nonetheless worth catering for. If Deputy Keating's amendment in this case were to be accepted, then the opportunities for retaining such a case in the Circuit Court would be limited. If it emerged during the hearing that there was over £200 valuation of land involved the Circuit Court judge would have no option but to transfer it to the High Court. The amendment in effect would abolish the consent jurisdiction of the Circuit Court in such cases. There could consequently be delay, inconvenience and expense to all parties as well as needless use of court time. If this amendment were to be accepted it would follow logically that section 22 of the Courts (Supplemental Provisions) Act, 1961 would also have to be amended similarly in order to maintain consistency. This section of the 1961 Act relates to a wide range of jurisdictions which are limited by factors other than land valuation and the circumstances under which the Circuit Court may exercise them. Thus, acceptance of the amendment would involve a far-reaching change in the practice and procedure in the Circuit Court well beyond the scope of the amendment as it is framed.

Mr. Keating

On section 3, the amendment put down has been accepted, I believe, by the Minister and I am quite happy with his form of words which is at least as good as ours. The main point is that it would help to resolve certain situations that could occur which were not obviously spelled out or intended by the section. It has been represented to us as a general comment in relation to section 3 that one might consider whether or not it is necessary at all. I wonder if there is an argument. The Incorporated Law Society, for example, make the point that it may in fact be more of a hindrance than a help to getting fairly speedy and just resolutions or decisions. Is it the case that it could be used in this way and is there a justification for suggesting that it need not be in the Bill at all?

Mr. Doherty

This section amends the Married Womens Status Act, 1957, to bring the limits beyond which proceedings under the Act may be transferred from the Circuit Court to the High Court into line with the new limits in equity specified in section 2 (1) of the Bill. Under section 12 of the Act, either the High Court or the Circuit Court may determine any question arising between husband and wife as to title to or possession of any property irrespective of the value of that property. If proceedings are initiated in the Circuit Court and the value of the property is over £2,000 or the rateable valuation of the land is over £60, then the defendant or respondent can apply to have the proceedings transferred to the High Court. The section now proposed removes the limit on personal property and increases the limit on the rateable valuation of land to £200. This is in line with the limits for equity cases recommended by the courts committee in their 20th report although not the subject of specific recommendation.

In relation to the rising of the land valuation level to £200, I might refer to a point made earlier by Deputy Keating. He mentioned an anomaly on a previous section. Where equity is concerned it is a question not of determining the amount involved or the amount of poperty involved but one's right to shares or who owns what of that amount and is different from the other actions in tort where the question of fault must be determined. For that reason I made the point that there is no anomaly. I am just recapitulating so as to inform the House.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 1 may not be moved.

Section 3 as amended agreed to.

SECTION 4.

Mr. Keating

I move amendment No. 2:

In page 4, line 22, to delete "either before or at any time during the hearing" and substitute "at any time prior to the commencement of the hearing".

An Ceann Comhairle

This has already been discussed with amendment No. a1. Is it being withdrawn?

Mr. Keating

Yes.

Amendment, by leave, withdrawn.

Section 4 agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mr. Keating

This is for me one of the first fundamental areas of disagreement with the Government in regard to this Bill. This section deals with divorce and gives jurisdiction in divorce actions to the Circuit Court, that is, of course, divorce a mensa et thoro as we have it in this country. As far as I am concerned the question of divorce generally could be classified as coming under the heading of family law and would therefore include for the purposes of this discussion not only the matter of divorce but also matters of custody of children, maintenance of children, maintenance of spouses and various relevant issues in the general area of family law.

We argued very strongly on Second Stage — I restate it briefly now — that the adversary system of the courts is anathema to, the antithesis of, what is needed where a marriage is in difficulty — and there are enough of those. I can think of no less helpful arrangement for trying to bring about an improvement in a marital relationship than the traditional adversary system of the courts when it deals with what is one of the most intimate, profound and significant human relationships. The approach which is appropriate in dealing with, relatively speaking, inanimate matters of property or other areas of justice, that is the system with prosecution and defence putting each other as it were in the dock, with witnesses being cross-examined and interrogated for the purposes of eliciting support for particular viewpoints is a reasonable one in many respects in the majority of cases. It is not what should happen in dealing with questions relating to marriage.

In my view experience alone has already shown that the courts are totally unsuitable for resolving a significant number of disputes arising under family law, that is the courts as we know them. This adversary system has, by and large, served us well in regard to other matters but it is not suitable for family law matters. Implicit in that system is one side propounding its own best points in the dispute and attacking the weaknesses of the other side. Translating this into a dispute between a husband and wife makes clear the criticism of using the adversary system or the courts system in this country for resolving family disputes.

For example, one has the situation where a husband through his lawyer attacks his wife in the dispute, referring to weaknesses which the husband alleges the wife has been guilty of. If the husband instructs his lawyer to the effect that the wife has committed adultery, then attack by way of cross-examination is made on the wife at the hearing. Whether or not it be true it hardly conduces towards ever effecting any reconciliation or, if reconciliation be impossible, it hardly conduces to the husband and wife meeting the consequences of the break-up in a realistic and reasonable manner. Although the break-up may be inevitable, frequently it is not possible to say that the relationship has come to an end. There may be children and the question of custody, maintenance and so on is a continuing factor. Just because the marriage breaks down it does not mean an end to the dispute nor indeed to the relationship in many cases.

If one accepts as a general proposition that the reconciliation of the parties in a marital dispute is something to be aimed at if at all possible and responded to sensibly and courageously if it is not, one can readily see that the adversary system not alone does not help to bring this about but is a factor which may make it irreconcilable. A situation where reconciliation may have been possible has now become permeated with unforgettable, traumatic, deeply psychologically wounding allegations and counter-allegations. Even if that is not so, it conduces towards ensuring that the parties will fail to deal with the ensuing matters of maintenance of the spouse or custody and access to or maintenance of the children in a reasonable fashion.

It is therefore proposed that these disputes should be taken out of the traditional court structure and should be the property of family courts specially equipped to deal with the difficulties people have today in marital arrangements and to deal with these problems sensibly, with a full range of what we might call social care network available to guide them, not as a major confrontation about issues of inanimate property but as a most fundamentally important discussion about how to rebuild a relationship which is in trouble, if that be the will of the parties involved.

In so far as it seeks to extend this jurisdiction in relation to divorce a mensa et thoro, this section is a very bad step in the wrong direction and this party oppose the section outright. The general subject covers a very big area and will give rise to considerable difficulties. In my view the whole question of dealing with family law disputes and family law generally should be a matter for a different Bill and a different approach, but I will not go into it in detail now.

The reality is that no such Bill has been introduced and I trust the Minister will not give that rather limp and late response in relation to the abolition of criminal conversation, which was abolished in the country he mentioned nearly 100 years ago. Will a Family Law Bill deal with these matters? That is not a Family Law Bill; it is a misnomer. But at the same time we should be thankful for small mercies. I want to discourage the Minister from making it appear that family law was a subject already being discussed in a fundamental way in the Bill he introduced which deals broadly with criminal conversation and one or two related matters. That is relevant but very peripherally.

It seems pointless, as submitted here, to change the jurisdiction with regard to family law matters because of the court facilities. I will not labour the point, but can the Minister envisage a situation where the relationship of a couple, tragically for them and their offspring, has gone wrong? It is only that kind of relationship which comes into the courts because relationships which are terminated with the agreement of both parties do not come before the courts. We are talking about people who are already in conflict. Our job should be to act as a healing agency for such people. We should give counsel, wisdom and justice, not third rate court conditions and rapid dispensation of law, which in many cases is very far from justice.

I would not be satisfied that the matters under discussion in this section would be adequately or properly dealt with in the context of the present manner of operation of the Circuit Court. It would be unreasonable to expect hard working Circuit Court judges, limited as they are in terms of numbers and resources, to deal with these matters. It would be unjust — and I am primarily concerned about this — to the growing thousands of families who are in such difficulties to fob them off in this way. That is not to suggest I am happy about the way they are being dealt with at the moment, but the response in this Bill is not the appropriate one.

We will be talking in the context of such cases about dissolution, issues relating to children's futures, issues which for the average person will probably be the greatest step he or she can take in a lifetime, and a particular response is appropriate. If there is anything this country can do, surely it is to learn from the experiences of other countries, I do not suggest that many of those experiences are necessarily appropriate here. However, one thing is becoming clear and that is that there is an unprecedented degree of marital difficulties at present and our response does not meet the real problems involved.

Will these courts have the facilities necessary to deal with such cases? Could anyone envisage a proper assessment of such a hearing where the various issues relating to all members of the family will be dealt with, where there will be adequate support agencies involved, not just as witnesses attesting to the fact of the alleged moral culpability of one party or the other, but in giving their assessment in a constructive round-table way as to how best to regenerate that relationship? Our approach should be permeated by compassion, by understanding, by giving time, by caring deeply, by not being rushed by a list of other cases and by investing a great commitment of personal and human resources in what is one of the greatest challenges of western society — the breakdown of marriage. Does the Minister seriously suggest that this proposal would do anything other than damage the prospects of such regeneration of those relationships?

How could we honestly expect parties to belabour each other across a court room, hawking out each other's excesses, warts and flaws — and which of us does not have them — and expect, once the judge has deemed the case to be closed, that these parties will somehow magically resume a relationship and go off happy, their children rejoicing in the new relationship which has been created by this environment? It could not happen like that, but let us at least endeavour to see that this procedure is given a chance.

I suggest that this section be withdrawn from the Bill on the basis that there is an urgent need for a proper family court system. I would not call it a family court but some kind of family tribunal arrangement which would not be based on mutual hostility and adversity, on who gets the best lawyer to eke out the dirt about the other party, on who can avail of private detective agencies and electronic aids with a view to incriminating the other party. That is not what justice should be about, especially when it comes to family protection and family law. Would the Minister agree between now and Report Stage to reconsider this section? I honestly believe it is misguided, not because anybody is being malevolent about it but because we have not yet come to grips with the real problems of marital difficulties in a number of respects.

This morning we are talking about how to respond to that problem in a way which would bring the parties together and get justice for each party. I am not suggesting that if a husband or a wife — and more usually the wife, unfortunately — wishes to assert his or her rights in certain respects that he or she should not get them, but that that should be done with the least likely damage to whatever embers of a relationship remain and with a view to rebuilding that relationship if it be to the benefit of the children or the family as a whole. For the most part that would be the case.

I made some comments on Second Stage, which I intend to repeat when appropriate, regarding my concern as to how the courts function and some of the injustices which have occurred. I feel great trepidation about asking the existing structure, which is geared to dealing with issues of property, to deal with something which is of fundamental importance to the happiness of human beings and the welfare of the country. I believe that our response should be much more comprehensive, caring and just. My colleagues have spoken about the provision of legal aid and the undoubted discrimination which exists at present. The basic ground rule is that a person who has money has a better chance of getting the law to operate for him than a poor person. All these points apply here also, except that the implications are more grave. How can the Minister justify asking a woman to equip herself adequately to deal with the situation confronting her under this section? Many women are impoverished and do not even know what their husbands earn. I know this section is wrong, and the Minister also knows it; yet we carry on this hypocrisy. All around us we see families in difficulty and our response is to tell them to go to a solicitor and to the courts. That is not the answer and anyone in this House who says otherwise is a hypocrite.

I have said before that there is room in this area for all parties in this House to work together. The happiness of families and the relief of the stress endured by some families are matters on which no political party should seek to gain political advantage. We would be very pleased to discuss with the Minister and his representatives, as well as with representatives of other parties and interests in this House, ways of getting us out of this morass and of helping people. I do not pretend that there is a great lobby for this or that there would be a great voting response, but it would be the right thing to do. It would be a good thing if we were to co-operate in this way at certain times rather than put our finger in the air at all times to see which way the wind is blowing.

There is no more fundamental issue in the area of social justice or family law reform than the problem of marriage difficulty. I appeal to the Minister to reconsider the exclusion of this section. I urge him to embark on a new approach to family law which would primarily involve caring for families and would not treat people as if they were items of property or chattels. Our approach to human issues must be different to that applied to issues relating to land or compensation. I again appeal to the Minister to reconsider the wisdom of excluding the section.

Mr. Doherty

The Deputy has dealt in depth with the area of family law. I should like to state that I am concerned about the discomforts, hardships, stresses and abuses experienced by men, women and children because of occurrences and certain disadvantages that prevail in this area. The section with which we are dealing is not intended to introduce changes in that very complex and difficult area. It proposes to provide easier access to court for people who could not heretofore obtain a legal remedy.

This section confers on the Circuit Court jurisdiction to hear and determine proceedings for divorce a mensa et thoro which is commonly known as judicial separation. Its principal effect is to relieve the spouses of the duty of co-habiting, but it is not irrevocable and the marriage still subsists. Jurisdiction to grant decrees of divorce a mensa et thoro was originally exercisable by the ecclesiastical courts. This jurisdiction, along with other jurisdictions in matrimonial matters, was transferred by section 7 of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, to the Court for Matrimonial Causes and Matters established by that section. The Supreme Court of Judicature Act (Ireland), 1877, transferred the jurisdiction to the Probate and Matrimonial Division of the High Court of Justice set up under that Act. The jurisdiction was further transferred to the High Court established under the Courts of Justice Act, 1924, by that Act, and to the present High Court by the Courts (Supplemental Provisions) Act, 1961. The form of proceeding for divorce a mensa et thoro in the High Court is complicated and costly, and has been the subject of criticism from many quarters, including the Courts Committee and Deputy Keating. The committee have been very critical of the facts to which I have referred.

Mr. Keating

They are right. It does not mean we should replace one wrong by another wrong.

Mr. Doherty

We are dealing with two different things and that is where I differ with the Deputy. The committee recommended that jurisdiction in divorce a mensa et thoro be vested in the Circuit Court and the section now proposes to do that. In fairness Deputy Keating should not seek to exclude this while presenting the case for an area of substantive administrative and legal changes which it is not intended to provide for under this Bill. This is a matter in which we are actively engaged in another connection, through the Law Reform Commission. In this section we are attempting to allow the bringing of an action in a particular court to which there is less costly access, avoiding the complicated legal requirements which cannot be met by most people in going to the High Court.

In this situation it is intended that one can proceed by civil bill in the Circuit Court. The Circuit Court has jurisdiction in the area of a number of family law matters. It is a further extension of the logic of the Government that we should find in that court the greatest possible family law package of remedies. There is a very important and significant area of family law requirement, commonly known as judicial separation. By providing a facility in the Circuit Court for this action we are putting into the court an action that can have many other aspects and complications in relation to barring orders, maintenance and so on. These can all be related matters to the action itself and they would have to be discussed in the context of the action at its hearing. It is of vital importance that we ensure the maximum cohesion so far as the court is concerned in relation to the hearing of the family law package and ensure that it is all together.

The Deputy referred to a certain lack so far as the courts were concerned. I have always believed a court to include more than the furniture. The Deputy did not specifically mention the judges but I take it that they were included in his comment. I am satisfied there is an adequate capacity among judges of the Circuit Court to hear these cases.

Mr. Keating

In that context I was not talking about the calibre of judges. If I wish to comment on that matter— and I will—I will make my comment without any ambiguity. I was referring to the physical facilities in courthouses, where families can sit and have consultations. The Incorporated Law Society, a body not known for being provocative in these matters, have said that the facilities are very poor.

Mr. Doherty

There is an amendment with regard to accommodation. It was suggested yesterday that, for the purpose of avoiding repetition, we should not deal with the question of accommodation. When the Deputy referred to the court I took it to mean that he included the judges but that matter has been clarified now. A point made outside this House is that the Circuit Court has not heard this type of case before and that judges would not have the necessary experience. I am satisfied that once given the task these eminent and qualified men will be quite capable of dealing with the matter. I want to put that remark on the record of the House. I genuinely thought the Deputy was referring to that point.

Mr. Keating

As I do not wish to indulge in repetition, I will not go into the matter in detail. There is a fundamental difference of opinion here. I accept the Minister's integrity, as I accept that he considers the view he is putting forward to be the correct one. Quite honestly I do not think the Minister is correct. His answer is based on underlining the wrongs and injustices that exist at High Court level, namely, the costs, difficulty of access and so on. I agree with him on these matters but indentification of deficiencies or problems in that area can point in many directions. The sensible way is not to compound those errors and not to recreate them at Circuit Court level. Rather we should introduce a system that is geared specifically to recognising the innate nature of problems in this regard. Other responses are possible. To talk about easier access is like asking a brain surgeon who may wish to use a sledge hammer to carry out a heavy operation to use instead a knife and fork. I accept that my analogy may not be the best but the point I am getting at is that the problems involved are increasing in number, that they have detrimental effects on our society but they have not been dealt with. They are not being dealt with adequately now.

Mr. Doherty

It is not intended to deal with them in this Bill. That is the point the Deputy is missing.

Mr. Keating

This is the only Bill before the House. The matter is as simple as that. The section refers to the transfer of jurisdiction in relation to these areas. If there were other Bills that dealt with the matters, that would be fair enough but this is the only Bill before us.

Mr. Doherty

Consequently, the Deputy's comments are not relevant.

Mr. Keating

I am not privy to the workings of the Minister's mind.

Mr. Doherty

The Bill is before the House. The Deputy should speak to that Bill.

Mr. Keating

I am trying to point out to the Minister that this section is likely to recreate many of the wrongs that are presently operating at High Court level in relation to family law cases. The Minister has said this is not the way to deal with the matter. I accept it is not but the Minister should have legislation to deal with it, then we would know that there was an integrated comprehensive approach. This Bill stands in isolation as the Minister's contribution to family law reform and it must be judged as such. When other legislation is introduced, we will know more. However, at this point it is a little extreme to expect us to believe there will be major innovations in that area in the apparently brief life remaining to this Dáil. I can certainly guarantee the Minister some action in the next Dáil.

Mr. Doherty

I hope to be back again.

Mr. Keating

I hope some of us might be here as well and I hope the country is the better for whoever is here. We should consider some sensible way of dealing with family law cases. I am mentioning the facilities and some qualms that one has about some judges. That is insignificant unless one is the unfortunate person who is affected. The fundamental point is that the adversary system is destructive of relationships. It operates fine where no relationship is relevant but when the marriage is at issue, when relationship is at issue, the adversary system is wrong and the court system is wrong. So it does not matter which court one is talking about. If the relationship exists on the basis of mutual adversary, that point must be considered. A different consultative, counselling or some other supportive forum, where people are not automatically and by nature of the court process at loggerheads, is needed in family law cases.

I would like the Minister to consider this matter. I know that he could argue technical or some smaller advantage in having expanded jurisdiction and people having greater access. Access in the first place did not help. We are only pretending now to each other that we are doing something positive about it and perhaps we will go home this evening thinking we have done something positive about it. I believe we are simply continuing a wrong and one could argue that, by virtue of the increased access, it will be more extensive. I know that is not what the Minister wants and it is certainly not what this side of the House wants. We want to do something about healing, which is a very important word in this context. Courts do not heal, they settle. That is the point.

Mr. Enright

This morning we are transferring the existing powers from the High Court to the Circuit Court. We are transferring actions in respect of divorce a mensa et thoro from the High Court to the Circuit Court. This particular proceeding for divorce a mensa et thoro became law in 1870 under the Matrimonial Causes Act.

Acting Chairman (Mr. Kenneally)

We are getting away from the section.

Mr. Enright

This became law under the Matrimonial Causes and Marriage Law (Ireland) (Amendment) Act, 1870. This morning we are transferring that right from the High Court to the Circuit Court. I find it hard to understand that in 1870 they were not very much in favour of family law. I believe it is very important that some special arrangements are made in relation to family law and that specific judges and specific persons are assigned to hearing family law matters exclusively. In regard to matters of this nature, which will come before Circuit Court judges, this section will prove unsatisfactory and I do not believe there will be any positive improvement here.

Deputy Keating dealt very fully with regard to the confrontation which exists in the courts. The existing structure of our court system for hearing family law matters is very unsatisfactory. In all those cases there is a plaintiff and a defendent and only the bad points of a marriage which has lasted for five, ten or 15 years, are brought forward. There is happiness and unhappiness in every marriage. There is goodness, generosity and charity as well as mean advantages taken in every marriage. When difficulties arise all the good points are forgotten and only the hurt is brought to the attention of wife, husband and children. It is a great tragedy to see this happening. We should try to overcome such a fundamental problem. It is in the early stages of a marriage that problems arise and an effort should be made at this stage to try to bring about some kind of reconciliation. If the situation progresses, relationships deteriorate. Solomon with all his wisdom would not be able to solve a lot of the marriage problems. I do not believe that legislation will be the answer, irrespective of what Bill the Minister brings in. I doubt if anybody in the House has the answer. I do not know if a Minister for Families or a Minister for Children is the answer. The only thing the Minister can do is to try to provide some place where an effort can be made at reconciliation and where the couple can get together to see if they can re-build some of the bridges which have collapsed. We will have to provide over the next few years some type of special courts, such as family courts or family tribunals, at District Court and High Court level, whereby these matters can be dealt with by experts. We also need the necessary back-up facilities to advise families in difficulty. If this matter were fully investigated and if some Government had the courage to provide the necessary finance to establish such courts or tribunals——

Acting Chairman

I am sorry, Deputy, I am afraid we are going off on a tangent on this section. The section deals specifically with the jurisdiction of the Circuit Court. The amendment of the 1870 Act is not to be discussed under this section.

Mr. Enright

In this instance judicial separations will come up in the Circuit Courts and a situation could arise where a family matter would be included in a list of cases to come before the Circuit Court. If that case is listed first, the people involved will be called in to the judge's chambers perhaps and the case will be heard. If the people in the locality did not know that there was a problem in this family they would be well aware of it before the day was out as everybody would be sitting outside waiting for the case to be finished. There would be pressure on the judge to hurry the case because of the people waiting outside and he might give a rash or hurried decision. That is an unfortunate situation. All we are doing here is updating something that was passed away back in 1870. Little progress has been made this morning if that is the best we can do. The Minister has the goodwill to approach this in a more generous way. We should have specialist judges to hear these types of cases. That would go a long way towards solving this problem. A lot of finance will be needed to provide these facilities but the benefits that will follow in relation to improving family relationships is all important. The Minister should take another look at this because the Minister is not just dealing with this section but with further sections.

Acting Chairman

The Chair must deal with the section before the House.

Mr. Enright

We will deal with the other sections later but they are closely related. We need specialists in this field. A marginal improvement has been made by having women judges but greater effort should be made. In all the courts only about five per cent of the judges are women. There should be much more woman involvement in family matters and in cases dealing with divorce a mensa et thoro. Judges often have meetings at which they discuss changes in legislation and so on and it would be an advantage if women had an opportunity to put forward their views. The change made this morning is very small; it is marginal in remedying the situation. The matter has not been tackled in relation to family courts and family tribunals and that is where it should be tackled.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): On the Second Reading of the Bill I raised a point as to whether, as the law stands, parties to a High Court action for divorce a mensa et thoro are entitled to have certain issues tried by a jury. The Minister may have dealt with that but I have forgotten it if he did.

Mr. Doherty

In the High Court?

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Yes.

Mr. Doherty

It is very rarely requested. That is a statistic.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The purpose of section 5 is to vest in the Circuit Court jurisdiction to deal with the only form of divorce we have, that is, divorce a mensa et thoro. This is yet another transfer of jurisdiction of the High Court to the Circuit Court. In an earlier section we added enormously to the volume of work to be done in the Circuit Court by increasing the jurisdiction in the action which is the greatest source of litigation, the running down action, from £2,000 to £15,000. I was shocked when I saw this section. It is often said that the purchase of a house is probably the single most important contract that a person will ever enter into. I believe that the most serious contract that an individual enters into is the contract of marriage, which is a very serious contract. While the contract covering the purchase of a house, a motor car or any other commodity may affect a person's material needs and comfort, a contract of marriage will affect a person's happiness in life for the duration of the marriage contract. This section is a downgrading of the marriage contract because it deals with the jurisdiction of a marriage contract. It is a downgrading of the importance and of the solemn nature of the marriage contract by reducing it from a higher court to a lower court. Deputy Enright and Deputy Keating have made the case about the family law courts, and so on. I gather from the Minister's intervention that he has them under consideration. That may be so, but why start tinkering around with the jurisdiction in divorce cases a mensa et thoro? This Bill will become law six months after it is signed by the President.

We are piling more and more work onto the Circuit Court in section after section. So far as I know, we have made no arrangements for an increase in court accommodation, in the number of judges in the Circuit Court, in the staff in the Circuit Court offices, all of which will be necessary if this Bill is not to become an agent of chaos. I have no doubt about that. There will be no change in the procedure in the Circuit Court. It will be about the same as it is now. A divorce case will be listed as one of perhaps ten cases to be heard during the day. It could be followed by an application for a person to get back his driving licence, or by a running-down action, or a slander action, or an action about a certificate of reasonable value in a building contract, which we added on to the work of the Circuit Court last year. There could be a mixed medlay of all sorts of actions.

A divorce case is a sensitive action about difficulties which have arisen between a man and a woman in the course of the marriage contract. The thing is absolutely absurd. As things stand, disputes between spouses, or between the parties in an action like that, are heard by juries in the High Court. For some years back we have had men and women on juries. We are taking away a right from those people, but not in so many words. We are invading the right to trial by jury in these actions by stealth. We are not saying we are doing it. We are increasing the jurisdiction of the Circuit Court from £2,000 to £15,000 and imposing penalties on people who take a chance and litigate in the High Court, but get awards only within the jurisdiction of the Circuit Court. We are driving these people into the Circuit Court where they lose the right to trial by jury. Under this section we are also taking away the right to trial by jury in this very sensitive type of action. The Minister says that not too many people avail of the right to trial by jury in this type of case. I understand there are not many of these cases.

Mr. Doherty

Quite a few.

Mr. T J. Fitzpatrick

Cavan-Monaghan): At any rate the right is there and we are taking it away and not saying a word about it. As has been said, this Bill is not really an effort at reform. Various reforms are necessary in this field. There is the reform which was mentioned recently where marriages are annulled by the majority Church and people are still married according to the law. The Minister might do better to deal with that complex situation rather than messing around from one court to another. He should leave the jurisdiction in the High Court where it stands at the moment as an indication that the Legislature still regards a marriage contract as very important, as a contract that is suitable to be dealt with in the highest court in the land.

There is a difference in the way in which things are done in the Circuit Court and in the High Court. In the Circuit Court a number of actions are listed for the day to make sure that there is a day's work to be done. It is assumed that an action will take an hour or an hour and a half, but it could take the whole day. People involved in later actions are hanging around to see whether the first case will be disposed of. In the High Court once a case is started almost invariably the other people are excused for the day. They are told they are not required. They go home and the case at hearing is heard in peace and quiet, and with patience and due consideration. There is more of a rush in the Circuit Court.

As Deputy Enright said, troubles and disputes in family cases may not be known about but, when Mr. and Mrs. X are seen in the hall of a Circuit Court, and then adjourn to the judge's room, it will not be long before the news gets around that all is not happy in that family. That is a source of embarrassment.

There is a major issue here. The lowest court in the country is the District Court. The next is the Circuit Court and the court of general and unlimited jurisdiction is the High Court. Down through the years it has always been the practice that matrimonial matters were dealt with in the High Court only. That should still be the case. When we come to a later section of this Bill I will want to know what real arrangements the Minister has in mind for handling the increased jurisdiction which he is giving to the Circuit Court. Will he appoint more judges? Will he provide more accommodation to house the judges and litigants? Will he provide more staff in the Circuit Court offices? If he intends to do all this, will he do it within six months because this Bill will become law within six months?

Section 31 (3) provides that sections 2 to 17, 19 (2), 20 to 23 and 25 to 27 of this Bill shall come into operation six months after the date of the passing of this Act. As far as I can see, the entire Bill, with the exception of section 24, which is concerned with the registration of District Court decrees as judgment mortgages, will come into operation six months afterwards. One would not be sufficiently brave to bring that into operation until one had made some arrangements. That just could not be done; it would not work. But the rest of the machinery for chaos which this Bill is, unless there is some preparation made for it, will be let loose on the country six months after its passing. Those are my serious reservations on the section. First of all, the principle of the thing is wrong. It is downgrading the importance of the marriage contract, and that is wrong.

Mr. Doherty

An indication of the seriousness and complexity of the substantive issues to which Deputy Keating has referred in relation to family law matters is that they are with the Law Reform Commission who are considering a number of aspects, including procedural matters. The Courts Committee also have a very definite and responsible interest in the area of reviewing and providing for procedural aspects. Consideration of such matters on this section is not desirable or necessary. The section with which we are dealing attempts to provide easier access to an existing legal remedy. Deputy Fitzpatrick contends that it is a downgrading of marriage to reduce judicial separation cases to the lower court, a downgrading of the contract of marriage, to which he rightly referred a one of the most, if not the most important contract that two people can enter into. However, it is a question of providing a facility that exists in the High Court in a lower court, thereby ensuring easier and cheaper access for many people. The right of trial by jury is there for those who wish to avail of it in the High Court. It has not been abolished and there is no intention so to do in the Bill.

I have some figures I can give the House of the numbers of petitions for judicial separation. In 1975, the number of petitions for judicial separation amounted to 43; there were five decrees, non-jury, High Court. In 1976 there were 37 petitions, five decrees, non-jury. In 1977 there were 29 petitions with two decrees, non-jury, and in 1978, 39 petitions, three decrees, one refusal: all non-jury hearings. This is clear evidence of the fact that all of these petitions — I must also point out that there was a considerable number not proceeded with — that were heard without a jury in the High Court. This is a clear indication of the fact that there is a certain intimacy — as I said earlier when dealing with another section — related to these matters that makes people anxious to ——

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Is the Minister saying that none of these at all was tried by jury?

Mr. Doherty

That is correct. I make the point only in so far as it clarifies the position on the question of the demand for juries. The Deputy contended it was a downgrading of the status of marriage to take the action of judicial separation, as it is commonly known, into the Circuit Court. On the one hand, the Deputy described it as a downgrading. On the other hand, the Deputy suggested that the absence of a jury in the Circuit Court is of considerable disadvantage. On the basis of the facts I have given and of the knowledge available to me I would contest what the Deputy says so far as the numbers of persons who have availed of the High Court facility have sought to do so in the absence of a jury. I am quite certain the same would apply in the Circuit Court which is, if you like, in itself being upgraded to deal with this particular action.

The more general questions of the establishment of special family law courts and procedures have been referred to also by Deputy Enright and the fundamental issue of the suitability of the adversary-type tribunals for the hearing of such matters have been raised both by him and Deputy Keating. The Minister for Justice has spoken at length, in reply to parliamentary questions, on this topic since coming into Office.

Indeed, it would be no harm to cover some of the ground again in the context of this Bill. First of all, let me say that the Committee on Court Practice and Procedure have under examination the question of establishing special family law tribunals. The Law Reform Commission are also considering the appropriate type of structure to deal with these types of matters. Secondly, the proposals in this Bill will go a long way toward making less formalised procedures available to many litigants in the family law area. Furthermore, there has been, and continues to be, substantial expansion in the welfare officer service attached to the courts.

I should also like to point out amongst other things, the valuable back-up services available in family maintenance cases where the District Court clerk can act as go-between for the payment of maintenance. Whatever the practical difficulties that must be faced in relation to the proper hearing of family law cases in any court. I am absolutely clear that there is nothing inherently inappropriate in giving the Circuit Court the widest possible jurisdiction. This matter was covered specifically by the Committee on Court Practice and Procedure, in paragraph 17 of their 20th report, which stated that these lower courts:

...are better geared to cope with the frequency with which several applications in the same case tend to recur because of changing circumstances. There is also the considerable advantage of local venues and the additional advantage of appeals by way of complete re-hearing to the appropriate appellate jurisdiction instead of the present costly and time-consuming system of appeal to the Supreme Court. If any particular point of law arises in respect of which the opinion of a higher court should be sought, the existing statutory provisions with regard to the stating of a consultative case are available to the District Court, the Circuit Court, and the High Court hearing an appeal from the Circuit Court.

I should like to remind the House also that the jurisdiction proposals in this Bill are based on a report of a committee of the highest calibre, chaired by none less than a judge of the Supreme Court. This committee is in an ideal position to judge which business should be taken in which court. I am confident that the Circuit Court would be capable of handling this business competently and carefully. I am looking at various methods of reorganisation of business in the courts. The possibility is open to us to re-arrange that all family law business be concentrated in one or two venues in each circuit. There is no question of the institution of marriage being downgraded. The position of marriage is constitutionally guaranteed and marriage still subsists even after a decree of a mensa et thoro.

Deputy Enright referred to the inexperience of members of the Judiciary or, to put it another way, their possible inadequacy in dealing with delicate and sensitive matters of family law. To suggest that the Circuit Court should not be given this jurisdiction because of its inexperience in such matters is unsound in logic. It is tantamount to saying not to give divorce to the Circuit Court because it has not got that jurisdiction already. To carry this type of argument to its logical conclusion is to make a plea for no change in this area. The Circuit Court has not got experience in such matters because it does not have the jurisdiction. The only way it can gain such experience is to give it jurisdiction. That is sound logic.

Mr. Enright

The Minister of State did not quote what I said. I wanted to get the point across that it was necessary to have more female judges especially for hearing cases relating to family law.

Mr. Doherty

Family law matters are not linked exclusively with the woman or girl in our society.

Mr. Enright

I wanted to get the point across that it was necessary to have a greater mix than we have. Approximately 95 per cent of our Judiciary are males. I would like to see a greater number of women involved from the point of view of family law.

Mr. Doherty

I am not going to differ with the Deputy on that point. I am a great believer in greater involvement by women in all areas of our society and life. I understood that the Deputy was suggesting inexperience or inadequacy on the part of some members of the Judiciary to deal with such cases and I was anxious to refute that. Deputy Fitzpatrick spoke about the requirements that would arise on the appointment of additional judges for staff and so on. I should like to tell the Deputy again that whatever is needed by way of additional judges or court staff to deal with the proper functioning of the Circuit Court will be provided as required. The Minister made that commitment in the course of his Second Reading speech. I want to assure the Deputy that whatever is required by way of court staff or judges for the proper implementation of the legislation and the subsequent running of the Circuit Courts will be provided.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Is the Minister aware that in many areas consultations can take place only in the public hallway or on the steps of the courthouse? Does the Minister appreciate that the first time a barrister who is conducting the case has an opportunity of meeting the party involved is on the morning of the case? Some of the courthouses are unbelievably bad, while others are quite good. The Minister, and the Government, can appoint judges pretty quickly but the Circuit Court staff cannot be appointed as speedily because they must be trained. However, when it comes to providing rooms for consultations and buildings the record of the Government is not that good. We are aware that the provision of such facilities takes time.

The Bill will come into effect six months after it is signed by the President. The general assurance given by the Minister of State that everything needed will be provided as soon as required cannot be taken seriously because we know that with the best will and all the money in the world—neither are available at present— it will take some time to build or extend courthouses to provide consultation rooms. We are shifting to the Circuit Court considerable additional jurisdiction. To exercise that jurisdiction in any sort of reasonable way the least that is required is a room for consultations. Such rooms are not available and nobody seems to know who is responsible for providing them.

Mr. Doherty

We agreed that matters of accommodation would be discussed when we reach the amendments tabled by Deputy Keating.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): If there is an amendment to that effect I will not develop the matter further. I was anxious to reply to the Minister's omnibus assurance, magic wand, that everything necessary would be provided. I do not accept that. It is not possible and I have ceased to believe in magic.

Mr. Doherty

A doubting Thomas.

Question put and declared carried.

SECTION 6.

Mr. Enright

I move amendment No. 2 (a):

In page 5, between lines 15 and 16 to insert the following paragraph:

"(c) In each District Court area special sittings of the Court shall be fixed for the hearing of matters in relation to consumer problems and complaints, specifically coming under breaches of—

(i) Sale of Goods and Supply of Services Act, 1980;

(ii) Consumer Information Act, 1978, Occasional Trading Act, 1979, and Trading Stamp Act, 1980

up to a maximum of £2,500.".

I had hoped that the Government would have established some type of consumer courts to deal with matters related to the Sale of Goods and Supply of Services Act, 1980. The Government have stated that they were in favour of such courts but to date we have not heard anything about a proposal to establish them. It is because of the failure to provide such courts that I am anxious to have special sittings of the District Court to hear complaints under consumer legislation.

In the last seven or eight years quite an amount of excellent consumer legislation was passed but that will be worthless if we do not make some special arrangement for the hearing of complaints brought under that legislation. There is not much use in passing such legislation if complaints brought under it cannot be heard in court. The provisions of that legislation are not being utilised because people are not prepared to sit around for hours and have their cases listed with criminal and property cases. Special sittings of the District Court should be arranged to hear such complaints. The good consumer legislation will be useless unless we make such facilities available. I hope that those facilities will only be necessary for a short period while the Government are deciding on what to do about the establishment of consumer courts.

My first priority would be the setting up of consumer courts but I am beating my head against a stone wall in looking for such courts. That is why I am asking for special sittings of the District Court to hear consumer complaints. Let us proceed along those lines for the present and then at a future date we could have consumer courts, but it is necessary to move now to bring about a situation in which matters of this nature would be heard on specific days in the District Courts. It is important that the courts be convenient to the people. In regard to the Sale of Goods and Supply of Services Act we find that people are reluctant to have their cases heard under the present procedures and that is why I am asking the Minister to accept the amendment.

Mr. Doherty

In anticipation of the enactment of legislation now before the House, my Department have been considering ways and means of improving the organisation of the District Courts in order that they be in a position to cope with the increased jurisdiction that will be conferred on them. Plans are well advanced for the enlargement of the Dublin Metropolitan District Court with a view to providing greater flexibility in the disposal of District Court business in Dublin city and county. Plans are well advanced also for the reorganisation of a number of provincial District Courts with a view to relieving pressure on some justices. My Department will consult closely with the President of the District Court, with justices, with the local legal profession and with the Garda with a view to ascertaining what further improvements can be made.

Deputy Enright's suggestion that different days be set aside in each District Court area for the hearing of different categories of business as well as his other suggestions for the more expeditious disposal of court business will be borne in mind when the administrative arrangements necessary to implement the new jurisdictions are being made. The various interests concerned will be consulted.

Matters proposed in the amendment tabled by the Deputy are questions which are best determined by rules of court and other administrative arrangements rather than by statute as is suggested. In any event, because of the short notice I have had in respect of this amendment I am not contemplating accepting it at this stage but I shall consider the matter between now and Report Stage

Amendment, by leave, withdrawn.

Question proposed: "That section 6 stand part of the Bill".

Mr. Keating

What is the nature of the improvements that are planned in respect of the Dublin Metropolitan District Court?

Mr. Doherty

There is under consideration a restructuring and re-arrangement of certain court areas so as to improve the quality of service and also to relieve pressure on justices. I mentioned the matter by way of comment to Deputy Enright so as to assure him that he has nothing to fear in that regard.

Mr. Keating

Are these changes of a structural or of an organisational nature?

Mr Doherty

They are administrative and organisational changes.

Mr. Keating

Will they involve more new facilities and buildings?

Mr. Doherty

The Deputy should ask that question on sections 30 and 31.

Mr. Enright

In regard to the extension of the jurisdiction of the District Court it has come to my attention that there appears to be a movement under way to discontinue many District Courts in provincial areas. For instance, I understand that there are plans to discontinue three of the seven District Courts in my county. Is it not strange that the Minister should be extending the jurisdiction of the District Court while at the same time reducing the number of sittings? Is it envisaged that what is to happen in Offaly will happen nationwide thereby bringing about reduction of about 40 per cent in the number of district courts? If this is to be the case the result will be a sizeable reduction in the overall number of District Courts. I should like the Minister to deal with this question so that we may know what the position is. If any such plan is envisaged, it would be bound to meet with widespread opposition because people would not wish to have to go to the larger centres to have their cases heard.

Mr. Doherty

Is the Deputy talking about the District Court or the Circuit Court?

Mr. Enright

I am talking about the District Court. Already the District Court in the larger centres must deal with a large number of motor accident and of criminal cases. What would be the point in adding an extensive amount of litigation to the courts in these areas and thereby aggravating further the already overloaded situation?

I understand that alterations are taking place in a number of court areas and that while this is happening consultations are under way with the Department and with the district justices involved in regard to moves to the bigger centres. Any such procedure would result in denying people the right to have their cases heard in their own areas. The people in many smaller towns — those with populations of fewer than 3,000 — are anxious to preserve their identity, to preserve their existing facilities and services, and they would be very much against any move to take the courts away from them. I hope that the Minister will be in a position to deny that there is any such move. If my information in this regard in respect of Offaly is correct, we could expect that on a nationwide basis the number of District Courts that would be discontinued could very well be as many as 100.

If we take big counties such as Mayo, Cork or Kerry and if we withdraw 40 per cent of their District Courts, litigants would have to travel very long distances to court and in this way they would be involved in substantial expense and inconvenience. Such a situation would be particularly difficult for elderly people or for those of limited means. This is very hard on elderly people and people of limited means and the Minister is also withdrawing a facility from the towns. I would like a clear statement from the Minister indicating his views on this because I have met a number of people in Offaly who are up in arms over the attempt to take away Banagher court, Kilcormack court and Dangan court. There is widespread opposition to this. Perhaps the Minister will look into the matter to make sure that it does not happen and that it does not happen on a national scale as well. I am quite sure that a lot of people will call to the Minister about this if they feel they are going to lose this facility.

Mr. Doherty

That is an inappropriate contribution on the section we are dealing with.

Mr. Enright

No, it is not. The reason it is appropriate is that the Minister is extending the jurisdiction of the District Court and in doing that he is bringing additional cases into some district courts.

Mr. Doherty

What has that to do with County Offaly?

Mr. Enright

I can show the Minister a letter from his Department dealing with this. This is happening. The Minister will have an opportunity, over the next few days, to have this matter fully looked into and he can come back into the House. I am giving the Minister good notice because I am concerned over it and I am anxious for clarification. I hope the Minister will prevent what is occurring in Offaly and also prevent it happening across the country

In relation to the extension of the jurisdiction of the District Court, better facilities will have to be provided than are provided at present. Some of the district courts where cases are heard are totally unsatisfactory and unsuitable and I would hope that this matter would be remedied as well.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The object of this section is to increase substantially the jurisdiction of the District Court from its present level of £250 in contract and tort to £2,500. That is a substantial increase and, as Deputy Enright has said, will increase the volume of work to be done in District Courts right across the country. The entire Act comes into operation six months after it becomes law. I hope that the Minister has made preparations for the working of the Act because if he has not it will be quite unsatisfactory.

I see that excluded from the increased jurisdiction are slander, libel, criminal conversation, seduction, slander of title, malicious prosecution and false imprisonment. I take it that I am right in thinking that the District Court has no jurisdiction in these at the moment.

Mr. Doherty

That is correct.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Has any new jurisdiction been conferred on the District Court in contract or tort other than that enjoyed by it already?

Mr. Doherty

No.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The District Court is going to continue to be a court which is neither fish, flesh, nor good red herring. I see at the bottom of section 6 that there is a proviso that the decision of the justice in the District Court in a case in which the question of title to land is in issue shall not operate as an estoppel or as a bar to a suit in any court in relation to such land. That is not new. I know it is not new because there was an old provision that it had some sort of jurisdiction up to £10 valuation years ago but it did not interfere with the title to land. I wonder will this not create confusion here because one could be dealing now with a fairly sizeable bit of land with the subject matter of the action amounting to £2,500 in value. That does not necessarily mean the value of the land. It could mean a right of way because a right of way does not seem to be excluded here. It is a bit vague.

Somebody might take an action which is decided one way or the other and, in 10 or 15 years somebody will think that he has won in the District Court and that he has acquired the right to do what he is doing and it will turn out that because of this proviso the action for damages about the land has not operated as an estoppel or a bar in any court in relation to the land. In ordinary language that means that it does not affect the title to the land. It would be better not to extend that jurisdiction at all or to extend it in a full-blooded way so that it would be an estoppel and would establish title to the land. It is quite unsatisfactory at the moment. It is following something that was there for 50 or 60 years or more since the Courts of Justice Acts were brought in. The Minister should study it and, — I do not intend to be a bit offensive in this — get to understand what is involved there because it could lead to complications.

We are, in section 24, giving the right to register a District Court decree as a mortgage on land. That is the first time that that jurisdiction has ever been conferred on the Circuit Court. I may be anticipating something but, as far as I know, the procedure in registering a Circuit Court decree as a mortgage was that it had to be registered in the Central Office in the Four Courts. But here we are going to skip that and we are going to register in the District Court instead of in the Central Office although there is no machinery or procedure in the District Court for registering such decrees as mortgages because the District Court is not a court of record. It may be that what I am talking about now could be better dealt with when we come to section 24, if I am here. But I am concerned about the proviso to section 6 in regard to actions about land because it is vague and uncertain and will create uncertainty and we should not do that especially in regard to a thing that is as sacred as land here.

Mr. Doherty

I cannot see how we are creating uncertainty by what is proposed because basically we are just restating existing legislation.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): And extending it.

Mr. Doherty

The Deputy mentioned the question of registration of District Court decrees. I do not want to go into it now as it will be coming under section 24 and other related sections, but the procedure will still be the same; the Central Office will still be involved.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I do not think so. I think it excludes the Central Office. I would suggest that the Minister have a look at that.

Mr. Doherty

I promise I will do that.

Question put and agreed to.

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mr. Keating

How is the figure of £2,500 arrived at? Is there any reason why it might not be more?

Mr. Doherty

In relation to jurisdiction limits?

Mr. Keating

Yes.

Mr. Doherty

It is the recommendation of the courts committee and it takes into account a number of things including inflation.

Mr. Keating

I will deal with the question of these amounts and the need to vary them under the amendment.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): In relation to inter-pleader proceedings under which the sheriff throws in the ball between two people who are claiming it and lets the court decide, has the District Court previously had jurisdiction? If so can the Minister tell us how often it was availed of, if at all?

Mr. Doherty

The section increases the jurisdiction conferred by the Enforcement of Court Orders Act 1926 on the District Court inter-pleader proceedings instituted by the under sheriff. The courts jurisdiction was limited by the 1926 Act to cases where goods concerned had a value of up to £25. The limit was increased to £50 by the Courts of Justice Act, 1953 and again to £250 by the Courts Act 1971. The proposed section increases the limit to £2,500. While not the subject of a specific recommendation by the courts committee this jurisdiction is one whose limits are traditionally linked with the tort and contract limits.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Apparently this jurisdiction has been updated to £2,500 in accordance with each revision of the district courts since 1922 but was it ever availed of, or how often?

Mr. Doherty

It was seldom availed of. We can find out more information for the Deputy.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): That rather indicates that it was not the type of action that would ever be considered suitable for trial in the District Court because there are no pleadings in the District Court. Apparently, experience has shown that the District Court forum must not have been a suitable tribunal for dealing with an action like that.

Question put and agreed to.

Section 8 agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. Keating

We are happy to accept the section in general, but there is one reservation that must be entered. We are dealing with a fundamental area here, the rights of people to a home or what is to them a home, their accommodation. That is in the context of the whole question of rent restrictions, letting of property and so on, because there is considerable litigation in relation to the Rent Restrictions Act 1960 which affects a great number of people and consequently it is a good argument to make that facilities regarding and access to the District Court should be available if, indeed, you want to get the best manner of dealing with it — another day's argument.

In the present District Court as we know it, the district justices are burdened with so many cases that there can be circumstances in which the concept of the District Court — which I presume was to dispense fairly rapid and reasonably-priced justice — might somehow conflict with the need to give extensive time in some cases to an area which is fundamental, the question of a home. If there is that problem — I put it forward tentatively as something that could arise — then we need to be concerned. I know there is the safeguard of a rehearing in the Circuit Court but that is open to the counter-argument about costs and legal aid and so on that we made earlier. Does the Minister share any of my qualms about the vital area that this constitutes and whether the District Court might not in some circumstances be the best forum in which to deal with such an area?

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I see that the Supreme Court yesterday reserved its decision in an action concerning the constitutionality of the 1960 Act. If the Supreme Court decides in a certain way the operative sections of that Act will be blown sky high. I do not want to anticipate the Supreme Court decision but have the Government given any consideration to this very important issue, the position of people who will find themselves homeless if the Supreme Court decides in a certain way?

Mr. Doherty

This section increases the jurisdiction of the District Court under the 1960 Rent Restrictions Act where an order for the recovery of possession of a rent-controlled dwelling is being sought. The 1960 Act gave the court jurisdiction in such cases either where the parties were agreeable or where the rateable valuation of the dwelling did not exceed £10 or the annual rent did not exceed £53. These figures were increased by the 1971 Courts Act to £25 rateable valuation and £315 rent per annum. The section now proposes to raise the rent limit to £2,500 per annum in line with the rent limit in ejectment cases proposed in section 6. The courts committee made no specific recommendation to this jurisdiction. While it is acceptable that controlled rents under the Rent Restrictions Act rarely in practice exceed the present limit of £315 per annum, this limit is being increased to £2,500 in order to keep it in line with the courts jurisdiction in ejectment proceedings. The increase to this figure renders it virtually unnecessary to alter the rateable valuation limit as the new rent limit would encompass all rent-controlled premises.

Deputy Fitzpatrick referred to the fact that the High Court recently found that the main provision of the Rent Restrictions Act, 1960, was unconstitutional. This decision is at present under appeal to the Supreme Court, and Deputy Fitzpatrick has drawn this to the attention of the House. In reply I want to state that the Government have under consideration the position of tenants affected in the event that the Supreme Court substantially upholds the High Court decision.

Mr. Keating

Will the Minister please repeat the last sentence?

Mr. Doherty

The Government have under consideration the position of tenants affected in the event that the Supreme Court substantially upholds the High Court decision.

Mr. Keating

Perhaps I am pushing an open door but I would exhort the Minister, in case the latter eventuality comes to pass, that whatever action is being considered should be taken immediately. Real fear and anxiety are being caused at present and there are tenants in very serious circumstances whose lot could be precarious, to put it mildly, in the event of the Supreme Court upholding the High Court judgment. Not even days should be lost in that case and if necessary we should have a Bill in this House the next day, if that is the way to deal with it.

Section 9 seeks to extend the jurisdiction of the District Court under the Rent Restrictions Act. The Minister's party undertook, prior to the eventful day in 1977 when they came back to power, to set up what might be called rent tribunals or a tribunal to deal with rent and conditions. The section here refers to this area and constitutes what surely must be Government thinking at this time. I wonder is it an indicator that the formal proposal — the undertaking of which I can give chapter and verse if necessary — is in abeyance or is no longer relevant. Presumably it would be referred to by the Minister——

Acting Chairman

I do not want to interrupt but the Deputy appears to be widening the scope of the section which is rather limited.

Mr. Keating

I do not wish to do that but I want to make the point that if this is the Government's thinking about rent restrictions disputes——

Mr. Doherty

This section deals only with rent-controlled dwellings and orders for the recovery of same. The extension of the Deputy's contribution to other areas has no relevance to the section, certainly no significant relevance,

Mr. Keating

Taking the narrow area referred to in the section, it is an area which the Minister and his party indicated would be dealt with in a different way. Of course he does not exclude this.

Mr. Doherty

The Deputy is talking about a rent tribunal and section 9 has nothing to do with a rent tribunal.

Mr. Keating

I am talking about what the Minister's party undertook to do and promised in a letter signed by Senator Eoin Ryan on behalf of the party three weeks before the election campaign.

Mr. Doherty

This is the Courts Bill 1980, section 9.

Mr. Keating

Hear me out. It related to rent and conditions, the whole area of landlord-tenant relations. What I want to know is whether the mechanical proposal here to increase jurisdiction in one specific area — which is inevitable when you consider it in the context of the whole Bill — is the sum total of action in that general area at the present time.

Mr. Doherty

I am talking on the sum total of what is in the section. I shall not join with the Deputy in expanding a debate which is irrelevant to the section before the House.

Mr. Keating

The Minister does when it suits——

Mr. Doherty

I do when it is necessary to get us back on the right track.

Mr. Keating

The Minister is running for cover.

Mr. Doherty

Certainly not.

Question put and agreed to.

Sections 10 and 11 agreed to.

SECTION 12.

Mr. Doherty

I move amendment No. 3.

In page 6, paragraph (a), lines 13 to 15, to delete "for further periods of not more than 12 months but not exceeding 12 months in respect of any one renewal" and to substitite "a renewal being for a period not exceeding 12 months".

This is a drafting amendment. The existing section 22(4) of the Family Law Maintenance of Spouses and Children Act, 1976, gives the District Court power to make a barring order. The new sub-section proposed here was drafted on the same lines as the original, merely substituting the words "not more than 12 months" for three months wherever they occur. This gives rise in the last few lines of the subsection to an apparent tautology which is removed by the amendment. The amendment does not affect the principle that each renewal must not exceed the maximum and only one renewal can be granted at a time. It should be noted that the existing subsection in conferring a power on the District Court to give a barring order for three months does not make it clear whether this period is a fixed period or is to be regarded as a maximum. The subsection now proposed allows orders to be made for any length of time up to the new maximum of 12 months.

Amendment agreed to.

Acting Chairman (Mr. Noonan)

Amendments Nos. 4, 11 and 12 are related and may be discussed together.

Mr. Keating

I move amendment No. 4:

In page 6, to delete all words from and including "or of any" in line 19 down to and including "District Court" in line 21.

I will not delay the House unduly. In line with our thinking in relation to the section relating to divorce a mensa et thoro it follows that we would consider that the District Court is not the appropriate forum for settling questions of guardianship of infants. For that reason we wish this to be excluded from this section. I feel more strongly about this action than I did about the earlier section because we are dealing here with infants whereas in the earlier section we were dealing with adults of presumed sound mind and mature commonsense who were able to speak for themselves.

I do not want to be unfair, but it must be said that for a variety of reasons, often outside the control of the courts themselves and the personnel associated with them, there are areas of dissatisfaction associated with some District Courts. I suppose that in any human institution that will be the case. There is concern about some of the actions, decisions and the disportment of the personnel involved in handing out those decisions and those associated with the processes, in a minority of District Courts. That is bad enough when we are dealing with matters of relatively minor material issues and when adults are involved, but does the Minister honestly believe that the District Court, as good as it might be at its best, is the right forum for dealing with the guardianship of infants? I do not believe he could. It was never intended that the District Court would deal with this kind of matter. One should look at the statistics in relation to the numbers of cases which go through the courts at District Court level. The reality is that there is a recipe in the District Court for cheap and rapid dispensation of the law.

Guardianship of infants is an issue which is becoming increasingly common in terms of disputes and does not lend itself to anything other than a commitment of as much time, effort and resources as is necessary. We are talking about assigning to courts, in which for the most part there is confidence, a vital matter — the future of young children. I do not think this section is adequate and I would not accept it under any circumstances. I consider it to be misguided and it should be repealed. I believe young people and children in this country have not had strong enough representation. They did not have anybody battering on the doors of Leinster House to have their voices heard. Men and women, mothers and fathers, who understand the needs of young people and children, would not support the idea of questions relating to the guardianship of these children being dealt with in the way proposed here. Accordingly, I propose that the amendments put down to these three sections be made and wherever the phrase "Guardianship of Infants Act, 1964" arises that it be deleted. I do not do so with any other feeling but one of sincere and profound concern.

I appeal to the Minister to consider my remarks between now and Report Stage — or before committing himself to the inevitability of including my amendments in these sections now — that he consult with expert opinion in the area, and familiarise himself with the comments in the media today in relation to existing courts dealing with children. As far as I am concerned our attitude in this area is very inadequate, disgraceful would not be too strong a word for it in some respects. It is not right that children and their futures should be used like pawns in any kind of game of clearing up administration or extending jurisdiction where there is any evidence indicating that hardship or distress would follow.

Mr. Doherty

The Deputy's contribution is on section 15. Are we dealing with sections 12 and 15 together?

Mr. Keating

I am dealing with amendment No. 11 in which I propose the deletion of the words in section 15 "the Guardianship of Infants Act, 1964,".

Mr. Doherty

The new jurisdiction for that is under section 15, so I must ask the Chair for a ruling as to whether we should deal with that now.

Mr. Keating

I am quite happy to deal with that point whenever it arises. I understand there are three sections where it arises. My remarks were directed to those three sections.

Acting Chairman

The three amendments are related.

Mr. Keating

They are the same amendment. They are designed to get the Guardianship of Infants Act out of these courts.

Mr. Doherty

The jurisdiction is provided under section 15.

Acting Chairman

We are dealing with the amendments.

Mr. Doherty

The jurisdiction is provided under section 15 and while we are dealing with the amendments the Deputy is also referring to the jurisdiction which is provided. I wish to establish which section we are dealing with so that I can deal properly with it in my reply, otherwise we will have repetition and fragmentation of debate.

Mr. Keating

If the Minister wishes to leave his reply on that point until section 15, I am quite satisfied.

Mr. Doherty

Will the Deputy be satisfied if I deal with the amendment as a separate entity?

Mr. Keating

Yes.

Mr. Doherty

Perhaps we should now have a discussion on section 15.

Mr. Keating

I think it best to keep it separate.

Mr. Doherty

All these amendments are consequential on section 15.

Mr. Keating

I cannot help it if section 12 comes before section 15.

Acting Chairman

We are dealing with amendment No. 4 only and amendments Nos. 11 and 12 will be taken separately, unless the Minister and the Deputy agree to discuss them together.

Mr. Keating

Yes. I will try to avoid repetition.

Mr. Doherty

The Deputy means well but that is not possible for him.

Mr. Keating

Let us both make a resolution to do better. I have made the point on section 12 that the District Court is not a suitable forum for dealing with guardianship of infants.

Mr. Doherty

Even if I were to concede, which I do not, that jurisdiction under the Guardianship of Infants Act should not be conferred on the District Court, as section 15 proposes among other things to do, the amendments now under discussion would not be acceptable because they propose to delete references not only to the District Court's jurisdiction but also to the Circuit Court's jurisdiction under that Act. I would like to remind the House that under existing law, the Circuit Court already has the same jurisdiction as the High Court under Part II of the Guardianship of Infants Act, 1964.

The Family Law (Maintenance of Spouses and Children) Act, 1976, provides at present that a barring order shall expire whenever the Circuit Court makes an order under the 1964 Act. The first of the amendments now before us would remove this important provision resulting in a significant diminution of the Circuit Court's powers when determining questions of the guardianship and custody of children.

As regards the other two amendments under discussion, I have said already that the aim of this Bill in the area of family law is to draw together the various jurisdictions in such a way as to provide a forum where the whole range of remedies which the law provides can be obtained on one application, and to make it easier for applicants to do this. Section 16 allows an applicant or plaintiff to take the full range of actions in his local District or Circuit Court venue, or, if he wishes, to go to the defendant's or respondent's local venue to initiate proceedings. In practice, the local venue will be the same for applicant and respondent in many cases; but where one party has moved from the locality or is working away from the locality, it could cause hardship, or indeed discourage the taking of action in some cases, if the party wishing to start proceedings was obliged to do so other than in his local court venue.

I should mention also that this rationalisation has been sought by many interested parties and has been recommended by the Committee on Court Practice and Procedure, which is an eminently qualified body chaired by a judge of the Supreme Court.

It would defeat the whole purpose of the provision in section 16, designed as it is to offer litigants a choice of venue, to omit from the range of jurisdictions covered by it the one relating to the very important questions of the guardianship and custody of infants.

Mr. Keating

We will have another opportunity of referring to the guardianship of infants under section 15. I now wish to deal with the question of barring orders.

Acting Chairman

We are still dealing with amendment No. 4 on section 12. Is the Deputy withdrawing the amendment?

Mr. Keating

No, we are letting it stand. We are not calling a vote on it but I wish to make it clear that it represents our view. We will take note of the Minister's remarks and accept the weight of numbers on his side of the House.

Amendment declared lost.

Mr. Keating

I move amendment No. 5:

In page 6, between lines 24 and 25, to insert the following:—

"(5A) Any such order made under subsections (4) and (5) of this section may be terminated by the Circuit Court or District Court on the written application to it by the parties in respect of whom the order was made.

(5B) Any such order made by the District Court or Circuit Court shall be enforceable by means of the arrest of a person in breach of any such order.".

The essential purpose of this amendment is to make the barring order a more sensitive and effective instrument for dealing with the problem of marital difficulties. The purpose of the first part of the amendment is to try to ensure that where a barring order has been obtained and subsequently both parties agree that a reconciliation is possible the order could be removed by a written application to the Circuit Court or District Court by the parties in respect of whom the order was made. The right to protection exists but when both parties consider that the barring order is no longer necessary the court would have the right to adjudicate as to whether its continued existence is necessary. This would prevent the couple from being separated by a barring order when they wished to be reconciled. I would ask the Minister to consider this point because it does not seem to be covered in the section. Sometimes people cool off after a barring order has been made and they realise that with the right counsel there is a prospect of reuniting. We should try to facilitate them in that regard.

The second part of amendment No. 5 is more important. The Minister knows there has been widespread agreement about the ineffectiveness of barring orders. In layman's language, a barring order is an order obtained by a wife to prevent continued violence or brutality to her or her children by her husband. I have no doubt that a woman would go to court to seek such an order only in the most extreme circumstances. It is not a step lightly undertaken. It leaves one open to intimidation and to abuse, physical and otherwise, and it is a most unfortunate step for any person to take. Therefore, it is a matter of grave importance. There is much evidence available, whether from the Incorporated Law Society, the various associations representing women's interests or from public representatives, that barring orders do not work. All that happens is that the barred party comes back the next night in a drunken condition, kicks in the door and carries on as he has done before. Last week a woman came to my clinic who was brutalised each night by her husband and against whom she has obtained a barring order. I am requesting that such an order be made effective.

There is no other way of doing that other than by giving the Garda the power to enforce the order. That plea has been made by many bodies and the Minister should not have any difficulty in accepting it. I do not suggest that the form of words in our amendment or the exact proposition contained in it is the best answer. All our amendments are meant to be taken in the spirit rather than in the letter. The problem exists and the answer is to make the barring orders effective. Senior members of the legal profession have admitted that it is a waste of time to grant barring orders. Some people will respect the order but that kind of person is not the individual about whom the problem is the most serious.

Arguably, we need here the power of arrest, or at least giving the Garda Síochána or some other appropriate agency — although I presume gardaí are the only people entitled to have such a power — the right to insist on the order being effective. If the person mentioned in the order puts his foot inside the door, he is subject to immediate arrest. What happens at the moment? The woman goes back to court but in the meantime the beatings and the brutality continue. Such a barring order is not worth the paper it is written on and all of us know that. I have tried to identify the problem and to offer some suggestions about how it might be dealt with. The more rapidly and effectively it is dealt with the better. I should like to hear the Minister's comments on the two points I made.

Mr. Doherty

The first sub-section which the Deputy proposes to insert relates to the procedure to be followed in order to discharge a barring order. This is already catered for by section 22 (2) of the 1976 Act, which provides that either spouse may apply at any time for the discharge of a barring order. The District Court Rules provide for the issue of a summons in that event which would result in a court hearing at which both parties have an opportunity to put their views before the court determines the issue.

I must say at the outset that the present procedure in my opinion is not only adequate but appropriate. Accordingly, it seems to me that at best the Deputy's proposal in this regard is unnecessary. It may be that the Deputy intends that a barring order should be discharged automatically by the court without any consideration of the issue once both parties have signed letters requesting it. Under the present law a barring order may not be set aside unless the court is satisfied that it is proper to do so, and that the safety of the spouse who applied for the order or of any dependent child will not be prejudiced by the discharge of the order. I am quite satisfied that this is in the interests of all the persons concerned as far as the protection of the wife and children is concerned. There is a real possibility that under physical or emotional threats the wife could be forced into a hasty decision to sign an application for the discharge of the order.

In my view it is far better and more in keeping with the purpose of the whole barring order remedy that the court and the parties should have the opportunity of deciding the issue at hearing. I do not accept that in a case where the parties are genuinely agreed to termination of the order this will prove any real hardship. If the two spouses appear before the court the matter can be disposed of easily. Even if this involved some inconvenience, I am convinced that the involvement of the court is an essential protection for the spouse who may have been pressured or who has acted hastily, and for the children. For that reason I cannot accept the first paragraph of the amendment.

As regards the second paragraph, I must say straightaway that it appears to be technically defective. The Deputy appears to be confused as to the function of arrest. Arrest can be no part of enforcement procedures, whether for breach of a barring order or otherwise. It is a procedure for bringing an accused person before the courts on a criminal charge. Since contravention of a barring order is made a criminal offence by sub-section (3), enforcement is by means of criminal proceedings in the ordinary way.

What the Deputy may have in mind is a power for gardaí to arrest without warrant for this offence. On a number of occasions the Minister for Justice has dealt with this issue publicly and has pointed out that the provision of powers without arrest of itself alone would not necessarily solve the problem. For one thing, arrested people can normally get bail. In addition, giving such a power does not touch other aspects of the problem such as what may happen while the case is awaiting hearing. These are among the matters which the Minister has at present under examination in relation to the whole barring order procedure. As has been stated on a number of occasions, consultations have taken place with all bodies concerned, including women's organisations and the Garda Síochána. The present position is that the Minister expects to bring his proposals in the matter before the Government in the near future. When I say "near future" I mean weeks rather than months. I cannot at this stage disclose the nature of these proposals, nor can I forecast the Government's reaction. I can say that given Government approval of the proposals there should not be any problem with regard to finding a suitable legislative vehicle for the proposals.

I should like to take this opportunity of informing the House that if these proposals makes sufficient progress it may become preferable to take the provisions about barring orders out of the Bill now under consideration and associate them with the further proposals which may be approved by the Government. In that event I would need to move a suitable amendment on Report Stage.

Mr. Keating

I accept what the Minister has said, that it might be better to have the physical presence of both parties before the court. It was never the intention that the court would decide on a slip of paper. It was not the intention of the amendment that a written letter with two signatures would be produced and the court would decide on the written evidence. The intention is that the application would be considered and that both parties would be summoned in. At present if parties wish to be reconciled they are not prevented from doing so. I gather that the Minister accepts that barring orders are a problem.

Mr. Doherty

Yes.

Mr. Keating

That was not always the case. I take it that the Minister is saying in a circumlocutory way that proposals are at a late stage of drafting to deal with specific problems and that the Minister may be moving an amendment——

Mr. Doherty

I said the Minister for Justice will bring proposals to the Government and if the Government accept them it will be necessary for me to do something on Report Stage.

Mr. Keating

We are talking about a hypothetical thing about which it is difficult to be precise, but I take it the Minister is assuring me and the House that he recognises the problem in regard to barring orders.

Mr. Doherty

There was nothing hypothetical about my comments. The Deputy can take it that I am not telling lies.

Mr. Keating

I do not question the Minister's integrity. I was trying to pay him a compliment when I said he had responded to an expressed need. I am not entitled to know the text of the proposed Bill but I should like to be told if it contains something about barring orders. Will it mean that a woman who up to now, whatever the processes available to her, the woman who has not had the protection in her home to which she is entitled——

Mr. Doherty

The Deputy is now asking me for details.

Mr. Keating

I am asking if the situation will be improved. That is what the amendment is about.

Mr. Doherty

The Deputy will have to wait for the legislation. He has already agreed he is not entitled to be given the details.

Mr. Keating

I do not want to know the details. I am asking about the amendment which is before the House and which proposes to give effect to barring orders. The Minister has said legislation is at a late stage of drafting and will be before the House in weeks rather than months. Will there be effective protection for women in their homes as a result of that legislation?

Mr. Doherty

I am confident that the position of the wife will be improved.

Amendment, by leave, withdrawn.

Section 12, as amended, agreed to.

SECTION 13.

Mr. Doherty

I move amendment No. 5a.:

In page 7, line 42, after "requires" to insert "before the hearing thereof".

An Ceann Comhairle

This has been discussed already.

Amendment agreed to.

Amendment No. 6 not moved.

Question proposed: "That section 13, as amended, stand part of the Bill."

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): This section deals with the Family Home (Protection) Act, 1976, and it proposes to amend section 10 of that Act. Can the Minister tell us what is the effect of this section?

Mr. Doherty

This section increases the jurisdiction of the District and Circuit Courts under the 1976 Act. Proceedings under that Act include proceedings, with the consent of a spouse, for the sale of the family home and to prevent disposal of household chattels by a spouse. Section 10 of that Act gives the Circuit Court full jurisdiction to hear and determine proceedings under the Act but provides that if the land to which the proceedings relate have a rateable valuation of more than £100 or if the personal property involved exceeds £5,000 in value, the proceedings must be transferred to the High Court if the defendent so requires. Paragraph (a) of the subsection now proposed increases the valuation limit to £200 and removes the reference to personal property. This increase was not the subject of a specific recommendation by the Courts Committee but is in line with the increase in the equity jurisdiction of the Circuit Court proposed in section 2 of the Bill.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): In effect what we are providing in section 13 is that the Circuit Court shall continue to have jurisdiction in relation to the 1976 Act. It apparently shall have unlimited jurisdiction in regard to the family home, by consent, but in cases where the PLV exceeds £200 the defendant can apply to have the action transferred to the High Court and it shall be transferred thereupon without prejudice to anything that has been done in the Circuit Court, subject to the right to vary in the High Court.

When I go back to section 5 which deals not with the house but with the relationship between the parties to the marriage, I find that the Bill is not conferring any right to one of the parties to have the action transferred to the High Court. This section simply confers concurrent jurisdiction on the Circuit Court to try an action for divorce a mensa et thoro. In section 5, if a party brings an action for divorce a mensa et thoro in the Circuit Court the other party has not got a right to say he or she wants to have the action transferred to the High Court. When the Minister comes to a house, which I pointed out in my earlier remarks is much less important than the contract of marriage, he recognises the High Court is a superior forum which one of the parties might want to avail of, but he gives the right in this section to one of the parties to have the action transferred to the High Court.

I should like an explanation as to why an action about the family home should be treated as more important and as qualifying for hearing in a tribunal of a higher status than an action concerning the very existence of the contract of marriage.

Mr. Doherty

Deputy Fitzpatrick is making a comparison between matters that cannot be given expression in monetary terms on the one hand and between matters which can be given expression in money terms on the other hand. Section 5 has stood part of the Bill since this morning, and in section 13 the plaintiff may be pursued in whichever court the defendant chooses to take the action. That situation applies in section 5 as well.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): That is the point I have been making, that a house is being dealt with in money terms — it is something anonymous. Yet the Minister treats it in a more elevated way and regards it as more serious and as being entitled to be adjudicated upon in a higher tribunal. He actually gives the party who is being sued a choice of courts, as between the Circuit Court where the action may be brought and the High Court, whereas in relation to an action for a permanent judicial separation, divorce a mensa et thoro, which is a permanent judicial separation——

Mr. Doherty

It is not necessarily permanent.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It is.

Mr. Doherty

No, it is not irrevocable.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It is a permanent judicial separation. It does not give the right to remarry——

Mr. Doherty

A person may be discharged from it if circumstances change. There is a provision in the Bill for that also.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am not going to argue that in detail but I think I am right in saying it is a permanent judicial separation.

Mr. Doherty

I agree with the Deputy that it is a separation, judicially decided——

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It cannot, in the Minister's own language, be adequately dealt with by the payment of money by one party to another because personal relationships exist, which as I said this morning, are far more important than an action about a house or a mere chattel. Yet in the Bill the Minister promotes the less important of these two rights of action to a higher tribune than the more important, which is the divorce action. It is very difficult to understand the reasoning behind that. I have no objection to the Minister, in section 10, giving the choice of the court which will have the right to hear the action. I am only pointing out the inconsistency. It is very difficult to understand and the argument that the Minister put forward, in reply to the point which I raised, is the strongest possible argument in favour of my objection, that money cannot compensate the person who has suffered the wrong in the case of divorce a mensa et thoro, but money can compensate for the sale of a house or chattels. Therefore, the action which the Minister proposes to confine to the Circuit Court, if it started there, is the more important action, the action which should have a choice of tribune.

Mr. Doherty

I went to considerable lengths this morning to explain what the jurisdictional changes in the Bill were intended to mean. In this section, I wish to restate that we are raising the jurisdictional limits again. We are not changing the law as it stands. We are simply raising the limit. This particular section does this in the context of section 10 of the 1976 Act, which gives the Circuit Court full jurisdiction to hear and determine proceedings under the Act. It also provides for much the same as section 10 of the 1976 Act, which also gives jurisdiction to the District Court to hear and determine proceedings relating to the removal of household chattels from a family home, where the value of the goods involved does not exceed £1,000. Paragraph (b) of the section now proposed increases the limit to £2,500. This increase was not the subject of a specific recommendation by the courts committee any more than the increase from £100 to £200 valuation was a recommendation of the courts committee, but is in line with the general increases.

When we make comparisons between section 5, which deals with a judicial separation, and a question of equity in section 13 which raises the valuation limit from £100 to £200, it is an unfair comparison and is likely to misrepresent the purpose of the individual sections in the Bill: section 5 which we should not be discussing and section 13, to which we are contributing. In relation to increasing the valuation limit to £200, as I have already stated, we are dealing with property and equity, where we have to decide such questions as ownership or part ownership, who shares it or who has the right to share it. That is much different from going into the Circuit Court or the High Court and making an application for a petition for judicial separation which is the prevention of a marriage contract to operate in full, but at the same time in no way undermining or dissolving that particular contract. I do not think Deputy Fitzpatrick intends to confuse the House or the public but he is being a little unfair when he makes comparisons about two matters which are not comparable.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Up to now, the Circuit Court had no jurisdiction in relation to a family home if the valuation was above £100. The Minister proposes to increase the jurisdiction to £200 but he gives the defendant a choice of tribunal. He says he can go to the High Court if he is not satisfied with the Circuit Court.——

Mr. Doherty

What choice is there anyway?

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Section 13 (a) states that where the rateable valuation of the land to which the proceedings relate exceeds £200 and the proceedings are brought in the Circuit Court——

Mr. Doherty

That is in section 10 of the 1976 Act.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan):——that court shall, if the defendant so requires, transfer the proceedings to the High Court. The defendant has a choice of venue. In regard to divorce a mensa et thoro, the Circuit Court has no jurisdiction at the moment but the Minister proposes to confer jurisdiction on that court and if proceedings are started there, there is no absolute right of transfer to the High Court. The Minister is preferring the house to the individual. That is what I object to.

Progress reported: Committee to sit again.