Vol. 359 No. 7
The following errors appear in the printed list of amendments: In amendment No. 9, paragraph "(b)""District" is misspelt in the second place in which it appears; in amendment No. 10 " ` " should appear between """ and "the Act of 1927"; in page 3, amendment No. 24, "". " should appear at the end, as in amendment No. 23.
SECTION 1.
Limerick East): I move amendment No. 1:
In page 3, subsection (1), line 13, to delete "(1) (a)" and substitute "15. —(1) (a)".
This is merely a drafting change.
I move amendment No. 2:
In page 3, subsection (1), line 14, after "or decree of a", to delete "competent".
This section simply enables the District Court clerk to issue a summons for the examination of a debtor's means. It does nothing to update District Court procedures or to strengthen the law on debt collection. It means that instead of the application being made to the district justice for the issue of an examination order, the applicant will now have that order granted by the court clerk. That change in the law will make no difference to the original intention of the Bill which was to streamline the efficiency of the District Court.
Subsection 1 (a) refers to a "competent" court. I understand what the reference means but it is a further example of the legal jargon used in the preparation of legislation which makes it difficult to understand. The ordinary individual should be able to understand the Bill. I know it is a small point but why use the word "competent"? When is a court not competent? If the court was not competent in the first instance it would not have granted a judgement or decree. I know that "competent" in this case relates to the jurisdiction of the court but no court would give judgement in relation to a decree or any other order unless it was qualified and competent to do so. This section seems to put the onus on the court clerk to interpret within the meaning of the Act of competency of the court. I suggest that the word "competent" should be removed from the Bill because it creates confusion. I should like the Minister to accept that it is unnecessary to have it included. I agree that the point I have raised is a small and technical one but it is no harm to have it clarified.
(Limerick East): I am opposing the amendment. Section 1 replaces section 15 of the Enforcement of Court Orders Act, 1926, to the extent that it is considered necessary to implement the recommendations of the District Court Rules Committee whose view it is that the procedure under section 15 as it stands takes up a large amount of court time and that a simplified procedure of the kind now being proposed is warranted. The change proposed by Deputy Hyland does not have anything to do with the main purpose of the section which is to implement the recommendations of the rules committee. The need for the change is not appearent and I do not think the need has been clearly demonstrated by the Deputy. The better course is not to make what appear to be unnecessary changes, bearing in mind that the word in question has survived in the law for the past 60 years and has not to my knowledge presented any difficulty.
Section 21 (1) of the Registration of Title Act, 1964, provides a registering authority which shall obey the order of a court of competent jurisdiction in relation to land. To remove "competent" here could bring into question its use in other provisions. What we are saying here is that we are making a particular change and that we should continue with the phraseology that has been in the law since the 1926 Act. In section 15 (2) and (6) of the 1926 Act the word "competent" appears in relation to a court. We are continuing with the phrase that has always been in use and within that framework we are making the changes recommended by the District Court Rules Committee.
While I accept what the Minister has said, I hold the view that the fact that the word has existed in law over a long number of years does not take from our right to question its relevance in regard to legislation. I do not think any court would become involved in the administration of law if it did not have the competency to do so. To use the word "competent" seems to imply that some courts are not competent. In what type of situation would a court not be competent? As a newcomer to dealing with legislation I want to understand the implications of all provisions. The use of the word "competent" needs clarification. It almost automatically implies that there were circumstances where courts would not be competent.
I should like to suggest to parliamentary draftsmen that it is this type of confusing phraseology used in almost every piece of legislation which is difficult for a lay person to understand. The law is supposed to be drafted in such a way that it can be understood by ordinary individuals but I have not seen any evidence of that and if I had any influence I would like to change it. I take it, following the Minister's reply, we will continue to use the word "competent". I hope that at some time in the future we will eliminate that phrase.
Amendment No. 3 is in the name of the Minister and Nos. 4 and 5 are cognate. Amendments Nos. 3, 4 and 5 may be taken together, by agreement.
(Limerick East): I move amendment No. 3:
In page 3, subsection (1), line 15, to delete "section" and substitute "Part of this Act".
This is drafting change. The new words extend the application of the definition of the debtor in Part II of the Enforcement of Court Orders Act, 1926, as against the new section 15 of that Act. Section 15 of the 1926 Act, as it stands, provides for a similar application to the definition in question. Amendments Nos. 4 and 5 are also drafting changes.
(Limerick East): I move amendment No. 4:
In page 3, subsection (1), line 16, to delete "section" and substitute "Part of this Act".
(Limerick East): I move amendment No. 5:
In page 3, subsection (1) line 28, to delete "section" and substitute "Part of this Act".
I move amendment No. 6:
In page 4, subsection (1), line 7, to delete "legally or morally liable" and substitute "legally liable and any other party actually supported by the debtor".
In the section which relates to the serving of a summons there does not appear to be any provision for the service of summonses. Will that be subject to the new rules of court? Should such a provision be written into the section? If the new rules of court which will be adopted when the Bill is passed provide for the serving of a summons in such a case, the section should refer to it. Once again there is a reference here to the competence of the court. We seem to use the word very often. I hold the view that it is irrelevant, confusing and meaningless.
(Limerick East): Reference to summons is intentional in section 1. Under the proposed new District Court Rules, civil proceedings will be instituted by issue of a civil summons and not, as at present, by a civil process. Upon service of the summons the debtor is being required to lodge a statement of means. That is the new subsection (1) (c). The statement of means shall be in a form required by rules of court — subsection (3) — and be lodged not less than one week before the sitting of the District Court at which the examination is to take place — subsection (4). That is the same period of time as that within which the debtor must lodge the statement of means under section 15 (1) as it stands. The reference to summons, and the process of using a summons, is intentional in the drafting and will become the practice when the new court rules are implemented.
It may be my hearing, but I find it difficult to hear everything the Minister says when replying. Am I to take it that the new rules specify the manner in which a summons will be served in these cases?
(Limerick East): Yes, and I am proposing an amendment to include a commencement provision so as to defer the operation of section 1 until the new rules of court are promulgated.
I move amendment No. 7:
In page 4, subsection (1), lines 13 and 14, to delete "the prescribed fee" and substitute "a fee prescribed by the rules of court".
The section does not state who shall decide the amount of the fee. Is it necessary to specify the amount and the limitations, if a fee is to be paid?
(Limerick East): The District Court Rules Committee have power conferred on them by statute to make rules of court with the concurrence of the Minister for Justice, but the rules committee do not have the power to fix court fees. The general power to prescribe court fees is vested in the Minister for Justice under section 65 of the Courts of Justice Act, with the consent of the Minister for Finance. To accept this amendment would bring about a situation where the District Court Rules Committee would be given the power now vested in the Minister. I do not think that was the Deputy's intention.
No, it was not.
(Limerick East): On the point of clarification, the power to fix the fees is vested in the Minister for Justice with the consent of the Minister for Finance. The District Court Rules Committee have the power to establish rules of court but not the power to establish the fees. The Deputy's amendment would change that and give that power to the District Court Rules Committee and I do not think we should do that.
I accept the Minister's clarification.
I move amendment No. 8:
In page 4, subsection (1), to delete lines 18 to 25, and substitute the following:—
"(a) the judgement order or decree of the court which is to be enforced;
(b) a statutory declaration setting out the amount outstanding at the date of examination if it is at variance with the amount in the order, decree, or judgement;
(c) evidence that the debtor is ordinarily resident in the district court district in which the examination is taking place.".
Subsection (3) reads:
The statement of means shall be in a form required by the rules of court and shall specify the assets and liabilities of the debtor, his income earned and unearned, the means by which it is earned or the source from which it is derived, and the persons for whose support he is legally and morally liable.
I would like the Minister to explain the words "legally or morally liable". In an issue of enforcement should the court be asked to determine the morality of supporting a relative? For example, a man of means may be morally liable to support an aged relative but my understanding is that at present the courts have no jurisdiction to enforce a moral duty to support that relative. Why then give the debtor the right to claim he has the moral duty to support such a person in order to reduce the amount of money he will have to pay to the creditor? A contrary argument is that a debtor may not be legally liable to support a son or daughter over the age of 21 years and attending university, although there may be a moral duty on him to do so. We should amend the section to read "for whose support he is legally liable and any other party actually supported by the debtor". By accepting this amendment the Minister would strengthen the Bill and eliminate the legal weakness of the words "morally liable" because, as I have already pointed out, the court does not have jurisdiction to enforce moral liability. A debtor could come into court and claim he was morally liable to support a relative and by getting away with this he could gain an unfair advantage over the creditor. My amendment would protect the interests of the creditor who finds it very difficult to collect a debt, even through the courts. I am endeavouring to close the loopholes which enable a debtor to find a way out so that he will not have to meet his debts. If a person is not legally bound and the court does not have the jurisdiction to impose a moral responsibility, I do not see why the debtor should be protected.
I support Deputy Hyland's amendment. I understood this Bill was being brought in as a reforming measure to cut down the delays on the payment of debts and debt collections. Under this legislation the District Court clerk would issue the examination order rather than the district justice. If this terminology is used the delays which are supposed to be eliminated by this Bill will be created once again when a person is called to give evidence as to his means. It will have to be proved that the debtor is morally liable to support an illegitimate child or other dependant when an assessment is made so that he can pay off his debt. This proof will have to be given so that the person involved will not get away with paying only a few pounds a week. Unless this amendment is accepted the aim of this Bill, which is to cut down on delays, will not be achieved. If this amendment is accepted the person will have to state exactly what his outgoings and commitments are and give proof of his legal liability in relation to other debts. In many cases a debtor may own many people and often has been in court six or eight times in one year, especially when his business has just gone bust. If these changes are not made the practical result will be longer delays. This amendment has merit.
As a legal practitioner my main preoccupation is to ensure that whatever legislation we pass will eliminate any undue delays. The present terminology will ensure that there will be even greater delays in ensuring that the creditor gets his money.
(Limerick East): On a point of order, I think we are discussing amendment No. 6. We appear to have got mixed up in the numbers.
We are discussing amendment No. 8.
(Limerick East): Can we discuss it and by agreement take the three amendments?
We cannot go back to amendment No. 6.
We have been discussing No. 6 for the last ten minutes.
We have disposed of amendment No. 6 by withdrawing it. Amendment No. 7 has been withdrawn and amendment No. 8 is now under consideration. It proposes to delete lines 18 to 25 and to substitute the paragraphs in amendment No. 8.
I am rather puzzled. I thought that was the situation but the fact is that Deputy Hyland spoke on amendment No. 6 for five minutes and Deputy Cowen did the same.
We discussed amendments Nos. 3, 4 and 5 together and they were passed. Then we went on to amendment No. 7. We skipped amendment No. 6.
No, we dealt with amendment No. 6.
I do not want any conflict with the Chair, but amendment No. 6 was not mentioned. I thought it was a question of convenience from your point of view.
I called amendment No. 6. It was withdrawn and I then called amendment No. 7. It was dealt with briefly and then withdrawn.
With respect, a Cheann Comhairle, I did not speak on amendment No. 6 at that stage, neither did the Minister and nobody else in the House referred to it, either. I put down a fairly substantial amendment in relation to it and spoke on that.
The Deputy spoke in relation to the word "morally" at some length and "morally" applied to amendment No. 6.
That is correct. It was amendment No. 6.
Are we still debating it?
No, Deputy. Certainly, I called amendment No. 8 and the record will show that.
(Limerick East): I think what happened was that when the Ceann Comhairle called amendment No. 6, Deputy Hyland spoke on amendment No. 7 and I replied on amendment No. 7. We got confused there.
We have to keep the record right. The Deputy can raise this on the section at length when we come to it. Admittedly, the amendment will not be there, but the amendment has been withdrawn and may be repeated on Fourth Stage, if the Deputy so wishes.
Naturally, I do not wish to question the Chair's ruling in this regard. I certainly did not hear him refer to the fact that we were moving away from that amendment.
I said "Amendment withdrawn". That is the age old method, if the Deputy says he is not pushing it or, as you did, if the Minister's explanation is accepted.
That was in relation to the previous amendment.
You said that in relation to two amendments. The Chair does not want to be difficult, but we definitely have passed to amendment No. 8. We shall get very confused.
Can we discuss the point on the section generally?
You can.
I have made my contribution in relation to it.
The record will show that amendments Nos. 6 and 7 were withdrawn, and to put the matter in order would the Deputy now deal with amendment No. 8?
Amendment No. 8 reads:
In page 4, subsection (1), to delete lines 18 to 25, and substitute the following:—
"(a) the judgment order or decree of the court which is to be enforced;
(b) a statutory declaration setting out the amount outstanding at the date of examination if it is at variance with the amount in the order, decree, or judgement;
(c) evidence that the debtor is ordinarily resident in the District Court district in which the examination is taking place.".
Could I just interrupt to say that amendment No. 8 reads: "In page 4, subsection (1), to delete lines 18 to 25, ....". I think subsection (1) should read subsection (6).
(Limerick East): It says subsection (1) of the Bill, I understand.
It is not for the Chair, but I think that the words proposed to be deleted are, in fact, in subsection (6). Lines 18 to 21 are in subsection (6).
Agreed to.
Reading subsection (6) (a), it seems to make a case for examination of the original debt. This should not be the case, because all that the creditor would be required to produce is the original court order or decree. This section also refers to a certificate setting out the amount outstanding at the date of the issue of the certificate. I do not understand who issues the certificates and who knows the amounts claimed in them. It is for that reason that I put down that amendment.
(Limerick East): Under the law as it stands, there are provisions for disclosure of a debtor's means and liabilities. The consequences of non-disclosure are contained in sections 15, 16 and 17 of the Act of 1926.
Section 15 of that Act provides for production by a creditor of prima facie evidence of the debt and of certain other matters and for lodgment by the debtor of a statement of means.
Section 16 provides for the examination of the debtor as to his means, including the adducing of evidence as to means over and above the statement of means, for the giving of evidence by the debtor and for his cross-examination and for the penalties for lodging a false statement of means.
Section 17 sets out the consequences that may follow any failure on the part of the debtor to disclose his means.
Only two changes of substance are being made in these provisions. The first is the proposed new subsection (2) of section 15 which proposes that a creditor seeking the issue of an examination summons shall lodge with the District Court clerk concerned a statutory declaration as to the debt that is due and the place of residence of the debtor. This new requirement of a statutory declaration is in lieu of the prima facie evidence of these matters that under section 15 of the 1926 Act as it stands is given at the preliminary court hearing. We are dispensing with one court hearing. A prima facie case was required previously at the preliminary court hearing before the order was obtained to move to the examination at the second court hearing.
Now the function of the first court hearing is being transferred to the District Court clerk who is providing for a statutory declaration at that point of the proceedings. Then the matter goes to the court, there being only one court hearing. This is the advantage of the section, in effect. One can see the advantages for example, where a District Court meets only once a month and there could be quite a delay between two court hearings. This is designed to ensure that only bona fide applications are made and that solid grounds exist for requiring an alleged debtor to lodge a statement of means and to attend for examination.
The second change which is being made is in the proposed new subsection (6) of section 15. This proposes that at the examination as to means the creditor, besides producing evidence that the debtor resides in the District Court area concerned, shall also produce, first of all, evidence of the original debt that is due in accordance with the relevant court decree and, secondly, a certificate as to the amount of the debt still outstanding. This certificate is to be the form required by the rules of court. The change that is proposed is a clarifying provision. In the first place, it makes it clear that the evidence of the debt that is due and that is already required under section 15, as it stands, of the 1926 Act has and may have two components; the amount of the original sum for which a decree was granted and the amount currently outstanding after taking account of any repayments already made by the debtor and interest due.
In the second place it proposes to enable that net amount owing to be stated clearly and concisely by being set out in a certificate whose form will fall to be settled by the rules of court. This is designed to simplify and to speed up matters for the parties concerned and the courts. What we are talking about is evidence to satisfy the court that the debt exists. Normally that would be the court order or a copy of it if the original was not available. Deputy Hyland's amendment would not admit a copy. The amendment is unnecessary and it could cause difficulty. It is not acceptable. It is quite clear that the court would not proceed with the matter unless satisfactory evidence were adduced to prove the debt in the face of any denials that might be made by the debtor.
The amendment would also replace the certificate I have mentioned by a statutory declaration and that change would be unnecessary and undesirable. It would give evidence when the court is examining the debtor and if the creditor has made a misstatement that can be established quickly. It would be undesirable in that the creditor is already required to lodge one statutory declaration under the proposed new subsection (2) of section 15. The amendment would put him to unnecessary trouble and expense and he would have a second statutory declaration.
Under the proposal in the Bill he simply completes a certificate in a settled form. There is no reasonable ground for arguing that he could get away with a misstatement in that certificate. Subsection (1) of section 1 proposes to substitute a new section for section 15 of the enforcement of Court Orders Act, 1926. It will have seven subsections. All these proposed new subsections are in section 1 (1).
We are trying to simplify the proceeding. My objection to the amendment is that it would make it more complex and would not achieve what we are trying to do.
I am all in favour of simplifying the procedures but I am somewhat unhappy about the section as it stands. An important element of the proof is the amount of debt outstanding at the date of examination. I should have thought that would fall to be a matter requiring to be proved to the court by sworn evidence in one form or another. As the section stands, all that is required is a certificate. It does not say in the section who is to give the certificate: I suppose any bookkeeper in the creditor's office might give it. As we know, a certificate is not evidence, it is not a sworn statement.
The matter of having an instalment order made that could lead to the imprisonment of a debtor is a serious matter. It should fall to a creditor to be in a position to give sworn testimony to the court as to what credits, if any, the debtor may have made between the date of the original judgement decree and the date of the examination hearing. I do not think that a certificate as such is sufficient. The creditor should be sent to recheck his books very carefully, he should be able to swear by evidence in court that the net amount due is £X and that all credits or payments the debtor has made in the meantime have been fully credited.
A certificate is a much lighter statement. Why should there not be the proof of sworn testimony? Merely to hand in a written certificate setting out the amount due does not make a person amenable to the perjury laws. It might lead a creditor to be sloppy in his bookkeeping arrangements and not to check on matters. He may take the attitude that all he has to do is to give a signed certificate, that he will not have to give sworn testimony.
Deputy Hyland's amendment attempts to tackle that in some way by providing that the matter be dealt with by statutory declaration which is a sworn document. That would be some improvement. However, I should have thought it might be better dealt with by the creditor's witness who has to be in court in any event because under subsection (6) (a) he has to give evidence of the original debt. I assume that would be done by evidence in the witness box. As the creditor's witness will be in the witness box giving evidence as to the original debt, why should he not at the same time proceed to give evidence of any credits that have been made in the meantime to show what is the net amount? Why is he required only to give evidence of the original debt? Why does he get away with giving evidence regarding credits made in the meantime simply by handing in a certificate that may be signed by a book-keeper in the creditor's office who may not even be in court at that time? If the debtor who is in court wants to query that amount he will not have anyone to cross-examine regarding credits made. An argument may develop regarding credits the debtor may have made but no witness will be available to cross-examine in connection with the matter. Normally all these things have to be proved. I find it difficult to understand why he is let away with handing in a certificate. It is not often that matters of evidence are dealt with by way of certificate. They are dealt with by sworn testimony preferably or perhaps by statutory declaration.
(Limerick East): We are implementing the recommendations of the District Court Rules Committee. The second change proposed in the new subsection (6) of section 15 is the one we are talking about now. It proposes that at the examination as to means the creditor besides producing evidence that the debtor resides in the District Court area concerned shall also produce two things. First, he shall produce evidence of the original debt due in accordance with the relevant court decree and also a certificate as to the amount of debt still outstanding. This certificate is to be in a form required by the rules of court. Both sides can do what Deputy Taylor has suggested. Both the debtor and the creditor can, if they wish, give evidence against one another and the court will find in the matter. That is under section 16 of the 1926 Act. That process of giving evidence under oath in cross-examination is maintained.
It is not possible to cross-examine someone who has not given evidence. The proof that is required here of credits that have been made by the debtor is not dealt with by way of evidence or witness but by handing in a certificate. One cannot cross-examine a certificate.
Ironically, the creditor is required to give sworn testimony of the amount of the original debt on the decree. One would have thought that was something that would have proved itself because one just hands in the actual judgment or the court order and that states the amount. If anything did not need to be proved perhaps that was it. I should have thought it was far more important for evidence to be given in open court as to the payments made by the debtor subsequent to the date of the court decree up to the time of the examination order hearing. If things were the other way around it would have made more sense because the court order has on it, the amount of the decree. It speaks for itself.
But a more nebulous and doubtful feature is the question of what payment the debtor has made subsequently. This is very important because as a result of the hearing the court will make an instalment order directing that the debtor pay so much per week or per month or that in the event of his failure to comply with the order he will be liable to be sent to prison. Therefore, it is very important that the provision in this regard is correct. I would have thought that sworn testimony should be required to enable the debtor, if he disputes the order, to cross-examine but in that situation there would be no one for him to cross-examine because all the person in the witness box is there for is to produce evidence of the original debt. He simply hands in the court order and that order may have been made two years earlier. He would not have evidence of any payment made in the intervening period so there would be no point in examining him in that regard.
In some cases such a witness may know coincidentally of any such payment that that is a different level because when subsequently we go on to deal with the question of credit we find that it is dealt with by way of certificate. The answer of the witness would be in relation to the question of credit. He will be there only to offer proof by way of a certificate and that certificate may have been prepared by a bookkeeper in head office. Obviously, a certificate cannot be cross-examined so how, then, would the matter be dealt with? I am not satisfied that the person in the witness box or someone acting on his behalf, the bookkeeper perhaps, giving evidence of the original debt should not also give evidence of any credit made subsequently rather than to proceed to reply instead on a certificate.
That part of my amendment which requires a statutory declaration would at least be an improvement on the existing situation. The Deputy has pointed out the reasons for that being an improvement and I am asking the Minister to consider seriously accepting the amendment. I do not see how it can be at variance in any way with what he is trying to do in this section.
The requirement of a statutory declaration would be a progression in that regard. I do not understand the argument the Minister is making against the amendment. It is an argument that does not stand up to any kind of examination.
Deputy Taylor talks about oral evidence but the problem with a statutory declaration is that if one were to state in court in that manner what payments are up to the date of the court there would be the requirement that the statutory declaration would have to be on that date. One can visualise the practical problems involved in that requirement. One would have to find a peace commissioner to witness the statutory declaration and there would be no point in having the declaration made the previous day because the defending solicitor could say that the debtor had paid a certain sum of money on the morning of the court. The safeguard in so far as oral evidence is concerned is that the debtor would make it his business to be in court and if a defendant had paid contributions since the making of the order he should have proof to that effect. Therefore, oral evidence is not the problem. There should be provision for oral evidence at all times. The Minister has said that there will be oral evidence in the new set-up but, as has been pointed out, the certificate will show the up to date amount and there will be no means of cross-examining in that respect unless the creditor could be called.
The problem in this whole area of debt collection relates to the collecting of money. It is not a problem of oral evidence or of preventing delays by providing that instead of a person having to go to court and give evidence a couple of minutes could be saved by the procedure of handing in a certificate. Oral evidence is essential to have matters right. The certificate would cause problems on a practical level but neither do I consider the statutory declaration to be a solution because it will have to be made on the date of the court.
(Limerick East): The District Court Rules Committee are reasonably competent people who understand the difficulties of the District Court and who make certain recommendations accordingly. The argument here is based on a misunderstanding because there is nothing to prevent a court from looking behind a certificate. The court does not have to accept the certificate as the final statement.
I do not consider this amendment to be necessary because both parties can give evidence in court. The court will be examining the debtor and can establish very quickly whether a creditor has made a misstatement. Inasmuch as the creditor is being required already to launch one statutory declaration in accordance with subsection (2) of section 50, the amendment would be undesirable. It would give rise to unnecessary trouble and expense. There is the practical point also referred to by Deputy Cowen, that the declaration would probably have to be made on the day of the sitting because otherwise the court could not deal with evidence as to a further payment having been made between the time of the signing of the declaration and the court sitting.
We yet have to settle in final form the certificate that would be required by the rules of court. We must think in terms of making statutory changes which would enable the new rules of court to be promulgated. In the book containing the rules of court there will be many facsimile forms which will be reproduced subsequently. One can anticipate that the form will provide for itemisation of payments made against the original sum decreed but there is nothing to say that the certificate is final whereas section 16 of the 1926 Act provides for examination and cross-examination and the giving of further evidence.
I consider the situation to be met by the initial statutory declaration as to the amount of the debt together with the certificate system, the power of the court under the 1926 Act to look behind the certificate, to hear oral evidence and to cross-examine.
I take the point made by Deputy Cowen. One of the major difficulties in this general area is the matter of the collection of the debt. That aspect must be considered but the purpose of what we are doing here is to meet the statutory changes recommended by the Rules of Court Committee which are necessary before the new District Court rules can be promulgated. The District Court rules are what are significant rather than what we have here, which is a series of minor changes to make it statutorily possible to promulgate the new rules. There is no big deal involved in this instance. It will mean one sitting of the District Court on the issue rather than two, but the provisions of the 1926 Act remain the same. There will be provision for oral evidence and for cross-examination.
The Minister has had the advantage of reading the new District Court rules but I presume no other Member of the House has had that advantage. Can the Minister tell me whether the District Court rules provide for the eventualities that have been outlined in regard to this aspect of the amendment? Can he assure the House that the new District Court rules provide adequately for what I am endeavouring to bring about by way of this amendment? If the Minister can give that assurance I shall be happy to withdraw the amendment but I consider the inclusion of the statutory declaration to be necessary. It would strengthen the section. The Minister referred at length to the new District Court rules. It may well be that whatever is contained in those rules adequately caters for what I am endeavouring to do by way of this amendment.
I do not see anything in the new draft District Court rules that could possibly cover this point; it just could not.
The Minister refers to the District Court Rules Committee and says they made certain recommendations. That is no doubt true. Obviously this House must look at any recommendations made by them. I do not want to say a word about that committee. I am sure they are a fine body of men and women. But, if one were to look at who they represent in courts — as between whether they represent creditors or debtors — I would have no hesitation in putting forward the suggestion, if it was looked at — in so far as they represent either at all, that is — that they represent creditors and not debtors. The simple reason is that debtors are not represented in these courts except on a very rare occasion when they are so low down on the finance scale that they find themselves in that court, and the last thing they can afford to do is to find any lawyer to represent them. Therefore, it is the creditors who are represented, the creditors and their legal representatives who are on the District Court Rules Committee. Understandably enough, they seek to streamline the procedure, quicken it up and expedite it. That is a worth-while excercise and I would support it provided the necessary safeguards are there from the debtor's point of view.
That is perhaps where the position of this House may diverge just a bit from the position of the District Court Rules Committee. When you come into a court of law and oral evidence is being given it is rare, if ever, that courts are prepared to accept, or are ever required by statute to accept, crucial and important matters of evidence otherwise than by sworn testimony of one form or another, either by sworn testimony in court or by a sworn statutory declaration. I agree with Deputy Cowen. He is absolutely right about the statutory declaration. While certainly it would be an improvement on the position as is on the certificate, it would present certain practical difficulties to have the thing sworn on an up to date basis. But for the life of me I cannot see why it is necessary to give a concession to a creditor who is coming into court to seek his money, to prove his case the same as any plaintiff does, why it should be necessary for the House to bend over backwards to say that, on a crucial matter of evidence, a creditor should not be required to give his evidence in the normal way by sworn testimony but that he should be given the very rate and unusual privilege of proving a matter simply by a certificate from his book-keeper.
The reason witnesses coming into court are required to take the oath is that they should realise that this is an important and serious matter. Obviously people will not devote the same care and attention to a mere signed certificate as they would to something on which they have to take the oath. That is the whole purpose of the oath. Creditors and their bookkeepers who deal with these things may be inclined to be much more casual, and not as careful to search for credits that a debtor may have made if all they are required to do is give a certificate.
I do not see why they should have that concession. It is not even as though it would place any extra or undue burden on the creditor. He has to be in court. His oral testimony is required anyway. It is not as though one is pulling him out of his office for this purpose. He has got to be there because he has to give the evidence so far as the original order is concerned anyway. Why then can he not deal with the two items of necessary evidence while he is in the witness box, the first being the amount of the original debt and the second as to whether or not he has received any payments from that debtor in the intervening period? Why is he to be excused that normal liability? No doubt it would be a great convenience put forward by the District Court rules Committee but it is not good enough and I have reservations about it.
Very often, in many of these hire purchase companies—and let us face it, the overwhelming bulk of cases involved in these enforcement procedures are hire purchase companies — the way they work is that there are massive small payments, credits, interest to be recorded. It is quite complex for accounts, even in respect of things like television sets and the like. Very often payments are sent in, are mislaid, are not entered and so on. In all of these matters the debtor is at a grave disadvantage vis-á-vis the creditor. He does not have a bookkeeper; he does not have computers. It is a rate debtor who keeps an absolute record of what payment he sent in, when he was charged, and all the rest of it. He relies entirely on the bookkeeping procedures of the creditor and the hire purchase companies. In the overwhelming majority of cases they are honest people; I have no doubt that they are. But there are cases where, with the best will in the world, these things go astray. I have come across cases of it myself.
Why should the creditor be relieved of the obligation to go through his books with that higher degree of care that would warrant somebody taking a sworn statement that that was the correct net amount? Letting them away with simply giving a casual, signed, certificate I fear would give rise to a much more casual situation. It could well be in many cases that, as a result of that, a credit that a debtor would be entitled to may not be given to him and in effect he may end up paying the same amount twice. Even under the existing procedure that happens. The existing procedure — and the Minister can correct me if I am wrong — means that when these examination orders and this hearing comes on I do not think there is anything about a certificate; that is new. The position is that the same creditor or his witness, normally his bookkeeper, proves the amount of the original debt and also gives sworn testimoney to the court of what credits, if any, have been paid by the debtor in the meantime.
What is wrong with that? Why is it necessary to relieve him of the burden of providing that normal sworn testimony and let him away with a privilege? It is a privilege that is not accorded under any other circumstance I can think of. I do not see why this should be singled out for that benefit here. This creditor and debtor position is a very one-sided one. Debtors who appear in that court are in a very low position financially and otherwise; otherwise they would not be there. They do not have the benefit of legal advice and assistance. The ins and outs and practicality of it are that a certificate given by some bookkeeper back in the office will just be handed in and that will be the amount that will go into the instalment order. I must say that does concern me to some extent.
(Limerick East): As far as the District Court rules are concerned, they are not yet in final form. This Bill will enable them to be put into final form. Many of the appendices at the end give facsimiles of forms which will be used in different proceedings. One of those forms will be the certificate about which we are talking here. No decision on the final form of that has yet been made, but I would be surprised if it did not itemise the payments to be made. The protection for everybody involved is not so much in the District Court rules or in the form of the certificate but in section 16 of the Act of 1926 which is not being changed; it will remain the same. On the examination of the debtor, as to his means, pursuant to an examination order, the statement of means lodged by the debtor shall be received in evidence and there can be cross-examination. Therefore, all parties can be cross-examined.
There is no question of a certificate being presented, that being the end of the matter. The certificate itemises certain situations but the court can look behind the certificate which is challengable in oral evidence. It does not disadvantage anybody. But if the certificate is agreed initially, obviously it helps in the proceedings because there is then a written statement and, if both sides agree, that is it, that is the amount paid. They were the instalments. One has taken another step down the road and then one proceeds to the examination.
I agree that one can go behind the certificate but the fact is as has been outlined by Deputy Taylor. These people walk into court, stand at the back of the court until their name is called and they are not going to question anything because they do not know what is going on. This will not make it more simple. The creditor will have his solicitor, his bookkeeper or whoever is going to give the evidence. He will be able to put the accused in the box and cross-examine him about how much he is getting, how much his milk is costing and so on. The creditor will go through the whole procedure and sit down, but the accused will not go through the procedures at all. The defendant, while he technically and legally can go behind the certificate, will not do so, because he is in a totally disadvantaged position. After his cross-examination he will only get out as quickly as he can. That is the point being made. What the Minister says is correct on paper, but this legislation does not take into account the fact that one person may be disadvantaged. If we had free civil legal aid so that people could be represented in these situations I would be prepared to let the issue go and work itself out, but the defendants in these cases are not legally represented so that it is not fair to both sides. Only the statement of means lodged by the debtor will be thrashed out, but the certificate about what is owing will not be thrashed out. Previously where the debtor has not been legally represented the debtor was safeguarded by reason of the essential proofs which the creditor had to give to satisfy the justice as to the amount paid. It was part of the essential proofs that oral evidence was given under oath. If the Minister can assure me that, regardless of the certificate being handed in, the essential proofs will still have to be given, I am prepared to accept that.
(Limerick East): I can give the Deputy that assurance.
On oath?
(Limerick East): Yes.
The creditor will have to give the same proofs as before?
(Limerick East): Yes, unless there is agreement.
This would require some adjustment surely because under this the certificate is all that is required to prove the credits. That is what subsection (6) (a) says. In this connection I would draw attention to the disparity between the treatment of the debtor and the creditor so far as the statements are concerned. The debtor is badly done by here when one compares his position with the position of the creditor. The debtor in a statement of his means and of his position must file in court his liabilities, income and so on not less than one week before the sitting of the District Court, whereas the creditor need only submit a statement of the balance due on the day the court sits. The creditor has an opportunity to check up on the debtor's statement before the court sitting, but the debtor does not have an opportunity to check the creditor's certificate. The practicality is that the debtor would not even see the certificate in court. The witness just passes it up to the judge who certifies that £X are due.
If we are going to leave the Bill like this — although I am not happy with it and would ask the Minister to look at it on Report Stage — the least we should have is similarity of treatment for the creditor and the debtor. The creditor should have to supply to the court his certificate of the credits not less than one week in advance and he should be required to show on it the original amount, every debit and credit and the final balance, so that at least the debtor would have an opportunity to get that in advance so as to verify if all his payments appear on it. For the creditor to just show a certificate with a balance of the sum owed in the court on the day the court is sitting is of no help to the debtor. Why should he be treated differently to the creditor, who after all is in the stronger position? Would the Minister agree to consider that on Report Stage?
I have listened attentively to Deputy Taylor and Deputy Cowen, who both have vast experience in court. Deputy Taylor outlined the very classic and common example of the person brought before the court by a hire purchase company who simply appears in court because he has been summonsed. Because of his position he is very vulnerable and in a much weaker position in court than the creditor. Legislation should be weighed in favour of the weaker and more vulnerable people. We should endeavour to protect people who are less articulate and less qualified to represent their case in court.
Having listened to the contributions of both Deputy Taylor and Deputy Cowen I am not satisfied with the legislation as it stands. I do not want to press this amendment just for the sake of pressing an amendment, and I would be happy to concede the amendment if the Minister met Deputy Taylor's request to defer further consideration of the section until Report Stage so that in the final analysis the section would adequately cater for and protect the vulnerable individuals. While my amendment may not cover every aspect of the case made by both Deputy Taylor and Deputy Cowen, it is still an improvement and it strengthens the position of the debtor coming into court at least to the extent that it requires the more powerful creditor to make a statutory declaration in relation to the extent of the debt owed him. So that we will end up with a Bill which comes as close as possible to achieving what the Minister wishes to achieve, I hope the Minister will agree to Deputy Taylor's request and defer further consideration of the section until Report Stage.
(Limerick East): What is provided in the Bill is quite adequate and fair. It is a debate about who is the injured party or the weaker party in the court. Obviously a creditor who is not getting what is owed to him is the injured party. It is not necessarily the person from whom the creditor is trying to get the money owed to him. Why should all the sympathy lie with the debtor?
He should be put on an equal status at least.
The Weaker party is not necessarily the injured party.
(Limerick East:) The person who is owed money is the injured party. We should not go overboard painting dramatic picture of people without means who have fallen into the hands of finance companies and so on and who end up in court with the system against them. That is not the full situation.
The second point arises from a criticism made by Deputy Cowen. One can always argue that any legal system, if you have the weak and poor on the one side and the strong and financially well off on the other, bears heavily on the weak and the poor, but that is not exclusively a criticism of what is happening here. You can apply that criticism to almost any proceeding in court, especially in the District Court if the person being charged with any offence is not legally represented. It is a debate wider than we are talking about here.
That is why we need to expand legal aid.
(Limerick East): Maybe, or perhaps we need more commitment from the legal profession. Maybe they should act on a voluntary basis as other professions have to act and should not always be looking for money up front for all their activities.
Many of them act in that way.
(Limerick East): I appreciate that also. I believe that the Deputies who contributed have made their points very sincerely. I will have this examined between now and Report Stage.
I have a point which I would like clarified. I am puzzled as to why in some parts of the Bill reference is made to District Court areas. For example, subsection (4) mentions the District Court area whereas subsection (6) (b) refers to the District Court district. I am sure there is an explanation. Is there any distinction there or is that correct?
(Limerick East): I am informed that an area is a subdivision of a District Court district.
(Limerick East): I move amendment No. 9:
In page 4, subsection (1), to delete lines 26 to 34 and substitute the following:
"(7) (a) In this section `prescribed' means prescribed by regulations made by the Minister for Justice with the consent of the Minister for Finance.
(b) For the purpose of this section, the Dublin Metropolitan District shall be deemed to be a District Court Area.
(c) For the purpose of this Part of this Act, `debt' includes any balance of a debt remaining due after payment or recovery of part thereof.'.".
This is a drafting change which affects only the definitions of debt in subsection (7) (c) above and extends the scope of the application of the definition of debt to Part II of the Enforcement of Court Orders Act, 1926 as against new section 15 only of that Act. Section 15 of the 1926 Act as it stands provides for a similar application of the definition in question.
Let me make a couple of comments on the section generally. I must say that I have long been of the opinion that the whole concept of imprisonment for civil debt really should be written out of our legal system altogether. It has been there for a very long time, going back to Victorian times when people were imprisoned indefinitely for civil debt. It is widespread enough now, and I will be happier in this Bill if we see that whole imprisonement procedure for a completely non-criminal matter dispensed with entirely. Our prisons are overcrowded and cannot accommodate even serious criminals, who are being turned out, yet we find many people serving terms of imprisonment for the simple reason that they cannot manage their financial affairs — a serious matter, no doubt, but certainly not a criminal one.
All sorts of remedies are open to creditors to enable them to get their money, apart from using this procedure. As the Minister points out, while one can have some sympathy for a creditor who cannot get his money back, creditors who go into this line of business, hire purchase and so on, who are those mostly involved, know their business and whom they are taking on. They know the risks they run, whom they lend their money to and how sound the people are, and they take their chances on that. In this day and age other remedies should be sufficient for a creditor to get his money back without lodging in prison a person who has committed no crime. The section talks about statements of means and lodging statements of means. It is difficult to know exactly how to put this, but I will put it as follows. A very substantial proportion of those people in that court who get a summons setting out a good deal of verbiage, included in which is a requirement to lodge a statement of means, assets, liabiliies and so on, have not the remotest idea of what the whole thing is about. They have not got a clue. Maybe they should have, and it is unfortunate that they have not; but I am talking about facts, and it is a fact. We as TDs and public representatives meeting these people in their troubles on occasion know perfectly well that, if you were to ask them what is in this document that they got and what they are being called on to do, they have not an idea of what it is all about and the whole thing mystifies them utterly.
Another aspect of it is that, very sensibly, a standard practice has developed in the District Court dealing with these enforcment proceedings that if any person comes into that court and explains to the justice that he or she is unemployed and in receipt of social welfare and produces his or her unemployment card, the justice will not make an order for weekly payments against that person that could lead to imprisonment. However, the fact is that, although that is the established practice, people do not know that, and many unemployed people who get these examination orders do not know that if they go along to the court and explain to the justice that they are unemployed and on social welfare or assistance and produce their card, no order will be made against them. In very many cases they do not go to the court at all, orders are made against them and they are arrested and put in prison.
That is not imagination; it is fact. I was consulted some time ago about one person in that situation who was in Mountjoy prison who should not have been there at all but who through sheer ignorance found himself there. I had to go through quite a complicated procedure through the Minister's Department and to his officials, whom I must say I found most helpful in every possible way on that occasion. It involved no small deal of negotiations and travel back and forth and out to Mountjoy prison before it was possible to get that person released. It was not done easily. The procedure was quite complex.
In trying to be constructive on this point and to save unfortunate people in that situation from the fate of finding themselves in Mountjoy prison, I put forward the suggestion that when these forms are made up a note in large capitals should be put on them to the effect: "Particularly note, if you are on social welfare or unemployed it is vital that you go to the court and explain this situation to the district justice and if you do so no order will be made against you". That at least would have the merit of drawing to their attention what their rights are in this connection, and a valuable contribution would be made here to a situation which results in many unfortunate people, who just do not know their rights and find themselves on social assistance unable to meet orders which have been made by the court. I ask the Minister to liaise with the rules committee to try to arrange for some statement to that effect to be put on the forms sent out to those people.
It has been stated on Second Stage that there should be some method other than imprisonment for dealing with non-payment of debts. The point was made by Deputy Shatter and others on Second Stage when talking about something akin to an attachment of earnings order in maintenance proceedings where payments are deducted at source. Obviously, the cases that Deputy Taylor spoke about would not be included in that, but there should be some provision to deal with people who have money and are simply not paying their debts — in many cases because they know there is no room in prison for them to be sent there. They know they will not go to prison. A garda might call and see if he intended to pay but it is a very lackadaisical process. A lot of paper work must be done in order to get the necessary proof. The collection of the debt is what concerns me. Although it is not strictly relevant to this section, I would point out that the sanction is not only outdated but impracticable because people who are imprisoned cannot be kept there and must be let out in many instances. There are many other criminals who should be put into prison apart from those who cannot pay a debt of £200.
On the point about the certificate, I have checked the section again and I still fail to see its relevance. I have been assured by the Minister that the essential proofs will still have to be given by the creditor in the event of there not being agreement between the creditor and the debtor as to the amount due. It is stated that the creditor shall produce at the examination evidence of the original debt due and a certificate in a form required by rules of the court setting out the amount outstanding at the date of the certificate. A certificate acquired a week before the holding of the court case would be totally irrelevant as proof of debt and the amount due on the date of the hearing. The oral evidence which must be given by the creditor relates to proof of the original debt and proof of the up-to-date amount due, if there were payments subsequent to the issuing of the decree. I fail to see the relevance of a certificate, particularly since the section states that the certificate refers only to the amount due at the date of the certificate. I cannot see the relevance of producing such a document in court on the day of the hearing. Essential, proofs must be made before the instalment order will be issued. Perhaps the Minister will convince me as to the necessity for this certificate, apart from the fact that the District Court Rules Committee recommended it. That is the only reason I have heard for the provision.
On section 2 (2), I would ask the Minister and the House to give some thought to the provision for distress in the case of the body corporate as referred to in this section. We have seen far too many examples where the body corporate is no more than a front for one man, perhaps a sole trader, and in many cases the company is simply a shell. That protection is being used against the enforcement of the provisions in this Bill. Should the courts be allowed under this legislation to lift the veil of incorporation? Perhaps some provision should be made whereby a more detailed examination? Perhaps some provision should be made whereby a more detailed examination could be made of people who are putting forward their case under this section. I would ask the Minister to comment on the provision for distress contained in subsection (2).
(Limerick East): I will look at what the Deputy has said. Subsection (2) confines the levying of distress in criminal cases to cases of non-payment of penalties imposed on the body corporate. The law as it stands in section 22 of the Petty Sessions (Ireland) Act, 1851 provides for the levy of distress in every case of non-payment in the case of an offence within the scope of the section and links the levying of imprisonment for non-payment with the levy of distress. These provisions relating to distress are being replaced by narrower proposals in subsection (2). These narrower provisions originate in a proposal made by the District Court Rules Committee in connection with the proposed new rules.
They commend themselves in as much as the levy of distress is an antiquated, wasteful and largely ineffective method of enforcing payment. However, in the case of a body corporate it may be regarded as preferable to a provision for the imprisonment of a particular officer or officers of the body corporate.
Amendments Nos. 10, 15 and 18 are related and may be discussed together, by agreement.
(Limerick East): I move amendment No. 10:
In page 6, subsection (1), between lines 2 and 3, to insert the following:
"`the Act of 1927' means the Intoxicating Liquor Act, 1927;".
This amendment is necessary because the Intoxicating Liquor Act, 1927 is now being referred to and the proposed amendments to subsection (5) and (11) of section 4. Regarding amendments Nos. 15 and 18, section 4 (5) (d) and section 4(11)(c) of the Bill refer to cases where any changes are proposed in the nature of the licence including the insertion of a condition or in the conditions attaching to the licence. Representations have been received from the Vintners' Federation of Ireland to the effect that this provision is too general in nature and that in view particularly of the penalty for the submission of false or misleading information to the commissioners provided in subsection (3) and associated possible forfeiture of the licence provided in subsection (4), the particular cases where there are changes in the nature and conditions of the licence should be spelled out. It appears that the District Court has no general jurisdiction to insert conditions on the renewal of licences. This arises only in the circumstances referred to in section 8 and 9 of the Intoxicating Liquor Act, 1957, which apply where the applicant for renewal desires to insert a Sunday closing condition or an early closing condition. So far as changes in the nature of the licence are concerned what were in mind here were cases such as the following: A. Grant of new licence for adjoining premises (section 6 of the Licensing Act, 1902 as amended by the Intoxicating Liquor Act, 1960, section 24); B. Grant a full licence for premises having a restricted licence provided for in section 27 of the Intoxicating Liquor Act, 1960; C. Grant of a new off-licence in lieu of an on-licence in a county borough (Intoxicating Liquor Act, 1927, section 62 as amended by the Intoxicating Liquor Act, 1943, section 18).
It appears that in all these cases what the applicant seeks is a new licence and not a renewal of an existing licence as referred to in section 4(2). Accordingly it is appropriate to omit the reference to changes proposed in the nature of the licence since in all such cases a new licence is being sought. Section 4 of the Bill which refers to the renewal of the licence will not apply. On reconsideration, therefore, it is considered that a provision as in the amendment submitted referring only to the insertion of conditions in accordance with section 8 and 9 of the 1927 Act would suffice. It is narrowing the scope of it on the submission of the Vintners' Federation of Ireland and meeting a point raised by them.
Amendments Nos. 11, 12, 13 and 16 are related. Amendments Nos. 13 and 16 are consequential on amendment No. 11. They may be discussed together, by agreement.
(Limerick East): I move amendment No. 11:
In page 6, lines 8 to 12, to delete subsection (2) and substitute the following subsection:
"(2) Subject to subsection (5) of this section, where a renewal is required of a licence for premises which have been licensed in the immediately preceding year, it shall not be necessary to produce a certificate of the District Court to an officer of the Revenue Commissioners empowered to grant a renewal of such a licence.".
During the Second Stage debate Deputy Hyland and Deputy Cowen objected to the use of the word "may" in section 4(2). They advanced the view that the use of the word "may" conferred a discretion on the Revenue Commissioners as to whether to renew a liquor licence. I said that this subsection removes one of the conditions for the renewal of the liquor licence and that the provision does not give a new discretion to the Revenue Commissioners. Under existing law, they will be required to renew licences where the relevant conditions are fulfilled. I indicated, however, that I would have another look at the wording in the Provision. An amendment in the name of Deputy Hyland has been received and it proposes that the word "may" in subsection (2) be changed to "shall". I am not accepting that amendment but I am moving to bring about the change by the amendment I am now proposing to clarify the situation.
A depution from the Vintners' Federation of Ireland was received earlier in the month and they pressed very strongly for the replacement of the word "may" which, they feared, would give a discretion to the Revenue Commissioners. I should like to refer briefly to the legal background. The governing statutory provision is section 1 of the Licensing (Ireland) Act, 1833, as amended in part in 1943. It provides as follows:
It shall and may be lawful for the proper officers of excise in Ireland to grant to the same persons at and for the same houses as shall have been licensed in the year immediately preceding — upon the production of a certificate signed by six householders of the parish — a licence or licences for the sale of beer, cider and spirits without requiring the production of any certificate or other authority from any justice or justices of the peace, magistrate or other person or persons whatever.
The effect of section 11 of the Spirits (Ireland) Act, 1854, was that the certificate required by the officers of excise, before renewing the licence, is a certificate of the District Court. The Bill — section 6 and the Second Schedule — proposes that section 11 of the 1854 Act be repealed.
In the application of Doreen Reardon in the High Court in 1980, Mr. Justice Finlay in his judgment approved the statement of Holmes, J. in Murphy v. Cork J.J (1895) in which he stated that the issue of the licence is merely a ministerial act which the proper officer is obliged to do upon receiving the certificate of the justices and being tendered the amount of the duty. This will remain the law when the proposal in the present Bill in section 4 is enacted. As far as substituting the word “may” by the word “shall” is concerned, it will be noted that the effect of this would be to require an officer of the Revenue Commissioners to renew the licence on application, even if the requisite duty had not been paid.
This matter was again discussed with the draftsman and an officer of the Attorney General's office. It was suggested that some other form of drafting for subsection (2) could be adopted which would meet the point and allay the fears expressed by the Opposition and by the Vintners' Federation. The revised form of subsection (2), which was agreed at this discussion, confines the subsection to a statement that a District Court certificate will not be required in connection with the renewal of a liquor licence by the Revenue Commissioners. This form of wording will not be open to the interpretation that any new discretion is being given to the Revenue Commissioners. Therefore, I do not accept that replacing "may" with "shall" would improve the situation because it would put an obligation on the Revenue Commissioners to issue a licence even if the requisite fee had not been paid.
I accept that Members were genuinely afraid that a new discretion was being given to the Revenue Commissioners and that members of the Vintners' Federation had the same fear. In this amendment, I am proposing that the subsection should be redrafted and, subject to subsection (5) of the section, where a renewal is required of a licence for a premises which had been licensed in the immediate preceding year, it shall not be necessary to produce a certificate of the District Court to an officer of the Revenue Commissioners empowered to grant a renewal of such a licence. Under existing law, the Revenue Commissioners will issue the licence and we are removing the prerequisite that a certificate of the District Court should be advanced to the Revenue Commissioners. That meets the point and clarifies the matter.
The Minister's amendment removes the fears which were expressed on this side of the House that the inclusion of the word "may" would give some kind of discretion to the Revenue Commissioners. The Licensed Vintners' Federation were also fearful in this regard and, to the extent that that anomaly has been removed, I am satisfied that my amendment is no longer relevant in that context. However, subject to further clarification from the Minister, I am concerned about the almost automatic renewal of intoxicating liquor licences by the Revenue Commissioners without the production of a certificate because the opportunity provided to the public to raise objections in relation to the renewal of intoxicating liquor licences would no longer apply. We all know that excessive use and abuse of alcohol is one of our major problems and we are aware that some licensed premises are not run in accordance with the standards laid down by law. While I accept that the vast majority of public houses are run in a very excellent manner and in accordance with the law, there are isolated cases which do not comply. I am afraid that the entitlement to automatic renewal of licences suggested by the Minister will take away the opportunity from the public to voice their disapproval, as they can do at present, at the annual licensing courts.
Under the proposed new amendment, it will be possible for somebody who had a licence in 1985 automatically to renew it in 1986 without the production of a certificate. That amendment will relate not only to the normal family run public house but to the many other social clubs and hotels in areas where extensions of licences are granted. I have very serious reservations about any flexibility in the licensing laws which would lead to the automatic renewal of licences. Many licence holders accepted the annual certificate granted to them as an endorsement of their character and ability to run a good house, as they say in the trade. More important, an automatic renewal takes from the legitimate right of interested parties to express a view in regard to a licensed premises or the proprietor.
I am sure the Minister is aware of the concern being expressed by community leaders, teachers, the clergy of various denominations and the Garda about the increased level of alcoholism among students. The House should give serious thought to the degree of flexibility being given by the Minister to licensed vintners as a body in regard to the renewal of annual licences. How will the public be made aware of the renewal date? What opportunity will they be given to raise an objection? Under the old system the date of the annual licensing court was published in local newspapers and those interested were afforded an opportunity of expressing a point of view in regard to renewals.
As I understand it, under the amendment the renewal of licences will not be publicised and, therefore, interested parties will not be afforded an opportunity to raise an objection. This is not the time to take away from the public the right to raise an objection in regard to a licensed premises. Many genuine licensees would be pleased to have to go to the court to obtain an annual certificate of credibility in regard to their ability to manage a licensed premises. In some instances licensees might welcome an opportunity to object to the renewal of a licence if a premises was not being run in accordance with the law of the land. I hope the Minister can satisfy me that the liberalising of the renewal procedure will not mean that the public will not be made aware when a renewal is taking place. That is an important consideration. No matter how much we want to meet the wishes of licensed vintners — I would go as far down that road as possible — we should ensure that the procedure is such that premises will be run in accordance with the law.
I welcome the Minister's amendment which meets our objection to the original wording. In spite of the fact that it was being claimed that it was an enabling section it gave the impression that extra discretionary powers were being given to the Revenue Commissioners. That afforded us an opportunity to express the view that perhaps the Revenue Commissioners have more than enough power in many areas and that we should not be giving them more powers in an area where they had no reason to be involved. The Bill takes away the necessity for a publican to get a certificate of competence from the District Court in that he can now automatically apply to the Revenue Commissioners for the renewal of his licence. As far as allaying public concern about disreputable people getting involved in the licensing trade it must be pointed out that the Garda superintendent is the person who will raise an objection, if one is to be raised. I understand that such a written objection must be lodged ten days before the date of the court hearing. If the superintendent overlooks it any member of the public can raise an oral objection at the annual licensing court which will then be adjourned so that the licence can answer charges made against him at a future court.
I should like to get an assurance from the Minister that the public will have an opportunity to make an oral objection on the date of the court and that objections will not be restricted to written ones.
In practice, there will not be much benefit from the change because it did not take a lot of time to deal with applications at the annual licensing court. There was no objection to 99 per cent of applications. However, the fact that the public were aware that a certificate was being granted by a district justice at the annual licensing court helped to allay public concern that there was any chance that a person who was running a bad house would have his licence renewed. I accept that there are reasons why district justices should not be required to go through the same number of applicants because in most cases there will not be any objection to the renewal but I suggest that there should be a requirement that a District Court clerk publish a notice in the local newspaper giving the date of the annual licensing court and inviting those with objections to annual renewals to attend the court or, alternatively, present a written objection within the prescribed time. If the District Court will no longer have to deal with a certificate of competence an effort should be made to ensure that the public know what is going on. I do not believe that is a requirement at the moment, but perhaps the Minister would consider it and ensure that since these cases will not be heard in court in future, at least there will be the same level of public awareness of what is going on, and people will be afforded an opportunity to object to the renewal of the licence if they so wish.
(Limerick East): There is no liberalisation of licensing laws involved here. What is involved is the removal of some of the work done in the District Court which is considered to be unnecessary and simply wasting the time of the courts. The certificate provided by the District Court is no longer required in cases where there is no objection but the right of objection will remain and a court certificate will still be required in the cases referred to in subsection (5). I can give Deputy Hyland an assurance that there is no diminution or dilution of existing controls.
As Deputy Cowen said, the local superintendent is usually the watchdog of the community and he will be aware of the situation. In practice what will happen is that an objection in court will be an objection to the granting of a certificate by the Revenue Commissioners and the gap will be bridged by court rules to allow for communication between the two. Subsection (5) says: "Notwithstanding subsection (2) of this section, a licence shall not be renewable on expiry without the production of a certificate of the District Court for the District Court area within which the premises concerned are situated" and then there are four situations set down. The first is where "a notice of objection to such renewal has been lodged with the court within the time prescribed in rules of court". Subsection (6) tells who can object and reads:
An objection to the renewal of a licence may be made by any person who, but for the passing of this Act, would have been authorised to object to the grant of a certificate required for the renewal of a licence in respect of the premises; and any such objection shall be deemed to be an objection to the grant of the certificate required by subsection (5) of this section.
There is no diminution of the controls. The objection can be made direct to the court as at present under subsection (6) an objection to the renewal of the licence will be equivalent to an objection to the court to the grant of a certificate.
The provision as to notices will be continued so that the public will have exactly the same opportunity to object as they have at present. This matter has been discussed recently with the Vintners' Federation and the provision as to objections has been explained and clarified for them. As to the publication of notices in the newspapers that the annual licensing court is to take place, this can be considered with the new rules of court. I think it is a good idea that the public should be made aware of what is a suitable time of the year to lodge an objection. That is a valid point and the public should be made aware of it.
The final point raised by Deputy Cowen is also valid. He talked about a superintendent in court orally objecting on the day, even though there was no written objection prior to the court hearing. The provision allowing for that kind of objection without notice is not being continued because it seldom happened in practice and it was not satisfactory in operation. It is unfair to the licensee to allow objections without notice on the day of the licensing court.
Everything else remains. There is no liberalisation of the licensing laws. All we are talking about are changes in the arrangements so that court time can be used more effectively. We can debate how much court time will be spared, and what advantage it is, but there is a general principle that things which it is not necessary to submit to a legal jurisdiction should not be submitted. We should not clutter up the courts with matters which are not relevant to the courts. In a majority of cases, there are no objections to the renewal of licences. This can be done in one step through the Revenue Commissioners, provided all the rights of the citizens under existing law to object are maintained. They are maintained and Deputies will notice the form of words used in subsection (6). This says that any person who has the right to object before the Bill is passed into law will have the same rights subsequent to the enactment of this legislation.
I am still not very happy with the new arrangement. While I fully accept that in bringing in this amendment the Minister met our concern about the discretion given to the Revenue Commissioners, I still hold the view that there is now a level of automatic renewal of intoxicating liquor licences which did not exist before the Minister brought in this amendment. I hold the view that that is not a good thing either for the citizen or for the licensed trade.
(Limerick East): That is not the case.
In the original Bill the application was made to the District Court Clerk who issued a certificate and if there was no objection the licence was renewed by the Revenue Commissioners. There was an in-built county control at local level because there was a forum where objections could be raised.
This amendment was brought in to meet our request for the removal of the word "may". In my view our amendment to substitute the word "may" for the word "shall" would have been more acceptable nationally in terms of controlling licensing laws than what the Minister has done in a roundabout way to meet what we asked for. There was no reason why the Minister could not have accepted our amendment which said that the Revenue Commissioners shall issue a licence on the production of a certificate from the District Court clerk. That would have been the simple and credible way to do it. Under the proposed amendment we are losing control — community leaders, clergy, teachers, and people interested in the welfare of young people are being sidetracked and the opportunity they had up to now of raising objections is being taken from them.
(Limerick East): No, it is not.
