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Dáil Éireann debate -
Wednesday, 25 Nov 1987

Vol. 375 No. 8

Jurisdiction of Courts and Enforcement of Judgements (European Communities) (No. 2) Bill, 1987 [Seanad]: Committee Stage (Resumed).

Debate resumed on amendment No. 5:
In page 6, subsection (1) (a), line 30, after "order", to insert the following:
"or a judgement arising from an industrial dispute and requiring the sequestration or seizure of goods or assets of trade unions".
—(Deputy McCartan.)

The amendment in the name of the four members of The Workers' Party seeks to exclude the enforcement of a judgement from a European court in our jurisdiction that will amount to an arrest for committal for non-payment of debt. Some of the facts in regard to committal for debt in relation to our prison service are worth outlining very briefly here. In answer to a question from me on 18 June 1987 the Minister gave some details. He indicated that in 1986 some 222 people were committed to prison for non-payment of debt in our own jurisdiction. The average period of time any one of those persons spent in prison was 37 days and the average amount of money due to be paid by any one of those persons was £1,450. Let us place that against the cost to the Exchequer.

In answer to a question on 5 November 1987 the Minister put the weekly figure at £575 as the cost of detaining a person for one week in our prison service. I would say that figure is probably a little conservative but it is a workable figure from the point of view of my argument. What this means is that under our current system on average the State spends more money keeping a person locked up for non-payment of debt than it was ever hoped to recover from the person locked up. The State spends more money keeping a person in prison for non-payment of a debt than we could ever hope to recover from that person in the first place. These people are incarcerated for an average of 37 days — in excess of five weeks — at a cost of £575 a week. We are talking about a sum in excess of £2,500 to recover a maximum of £1,450 from any one of these committed debtors.

The person who ultimately suffers imprisonment for the non-payment of debt is invariably the person who does not have the money — working people and the unemployed who have run into substantial debt through hire purchase, loan shark arrangements and so on. Anyone who goes to prison for non-payment of debt invariably goes because of poverty and the inability to pay. That reality will no doubt apply to persons who might be the subject matter of a committal order for debt coming from outside our jurisdiction as well.

The question we have to ask ourselves is this: will the Irish taxpayers be asked to commit themselves to the extent they currently are to chasing our domestic debtors without having to deal with the problem of those who might come under our concern by reason of the provisions of this Bill? Allied to the whole problem not just of poverty and the pursuit of those afflicted with poverty is the question of prison overcrowding and whether we have room to accommodate any extra prisoners wherever they might come from or for whatever reasons they are imprisoned.

On 5 November in reply to a question the Minister told us that 203 prison cells which are designed for single person occupancy were then accommodating two offenders. That is a small indication of the degree of overcrowding that exists in our prisons. In earlier replies he told us that landing space, governors' offices and other non-cell accommodation, in Mountjoy for example, is used on a daily basis to accommodate people who sleep on mattresses because there is no room in cells on a double-up basis or otherwise.

We propose amendment No. 6 for the following reasons: it is wrong in principle, that because of poverty a person should be sent to prison because he cannot pay his debt, irrespective of where he comes from; at the moment our prison system is not capable of accommodating even the numbers which are sought to be committed from our own jurisdiction without taking on the responsibility of persons from abroad; and the fact that we spend far more money in pursuit of this sanction than we would ever hope to raise by way of the debt. I commend these Amendments to the House.

As I understand it, the intention behind these amendments is to prevent the enforcement in Ireland under the convention of foreign orders for committal for non-payment of debt or for the sequestration of goods or assets of trade unions. The amendments, as I will show, do not in fact have this effect.

First, I want to say that the types of foreign orders in question do not come within the scope of the convention and, even if the amendments were technically correct, which they are not, they are completely unnecessary.

The scope of the Convention is set out in Article 1. It applies to civil and commercial matters only. I think it would be useful if I quoted from the Schlosser Report — paragraph 29, page 84 of the Official Journal, reference C59 March 1979 — on the 1978 Accession Convention. He says:

The Working Party considered it obvious that criminal proceedings and criminal judgements of all kinds are excluded from the scope of the 1968 Convention and that this matter needed, therefore, no clarification in the revised text. This applies not only to criminal proceedings in the strict sense. Other proceedings imposing sanctions for breaches of orders or prohibitions intended to safeguard the public interest also fall outside the scope of civil law.

The exclusion is based on the principle of private international law that courts of no country will execute the penal laws of another. As is clear from the 1985 decision of Barrington J in the High Court in Larkins and others v. National Union of Mineworkers, civil contempt and sequestration are an exercise of State power — the former involves the imprisonment of the contemner's person and the latter the imprisonment of his assets — and are essentially penal in effect. Both, therefore, are clearly outside the scope of the convention.

Now I will return to the amendments. Section 6 of the Bill deals only with the technical details of how a judgement may be enforced in practice once it has been declared enforceable. It does not deal with whether the judgement is enforceable per se. It could not in fact do so since whether a judgement is enforceable or not is determined by the Convention.

The effect of the amendments would be that the types of judgements listed in the amendments would not automatically be deemed to be of the same force and effect as High Court judgements but the implication would be that they would be enforceable in some other manner. This would be tantamount to our saying in the Bill that we believed such judgements would be enforceable under the Convention but of course we do not say that. The insertion of these amendments which are unnecessary, could have the opposite effect to that intended by Deputy McCartan and, therefore, they must be opposed.

These two matters were raised on Second Stage of this debate and at that time the position was not as clear as the Minister's explanation today. I accept his bona fides in this regard but I am anxious not to lose the position I want to pursue in relation to these two amendments. Therefore, I propose to withdraw these two amendments in favour of considering further the Minister's views as outlined. Perhaps they can be reconsidered on Report Stage. I understand the application of law at private international law level applies to the domestic definition when considering matters of inter-party dispute and, consequently, their construction of a civil or commercial matter is something that would lie within the jurisdiction of our High Court or other courts in determining that definition. I am not absolutely convinced of the Minister's reply that the effect of the interpretation given by the author of the article to which he referred — whose name I did not note — would reflect the position of our courts in dealing with the definition of what is a civil and commercial matter. Both of the proposed amendments deal with what I consider to be — and what I understand our courts consider to be — utterly and eminently civil matters. The question of sequestration or seizure of goods in support of an action taken against the party is entirely a civil matter and, in certain circumstances, could also be considered commercial. In addition, the commital to prison for the non-payment of debt, while it is a sanction, is a sanction that arises from a civil matter and is a feature that in our domestic law would be so constructed, either civil or commercial. My understanding of the application of the norms of international private law in the construction given to it by the domestic court, that is the operative construction. However, I do not wish to pursue a matter which ultimately may not achieve the effect about which we are concerned. I propose to withdraw the amendments to undertake further consideration of the matter. Perhaps I will re-enter them on Report Stage if necessary.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 6 agreed to.
Sections 7 to 12, inclusive, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

I wish to refer to a matter which I raised on a previous Stage. Could the Minister indicate whether it is anticipated that during 1988 there might be substantial legislation dealing with the general area of domicile? This section defines domicile purely for the purpose of the Convention and indeed we spent some time teasing this out on Second Stage. Deputy McCartan, other Deputies and I dealt with the differing concepts of domicile in our law in the context of this Convention. The Minister correctly explained the reasons for the concept of domicile in this Bill but I made the point that the Law Reform Commission produced very detailed recommendations on replacing the concept of domicile with the concept of habitual residence. Will the Minister say whether in 1988 there will be legislation reforming generally the law in regard to domicile, either by its replacement by the concept of habitual residence or by retaining a reformed version of domicile, removing some of the more artificial notions attached to it such as the concept of domicile of origin reviving when you try to move out of a domicile of choice without having determined where your future domicile should be? There are also difficulties in throwing off a domicile of origin and acquiring a domicile of choice. Will some of the proposals of the Law Reform Commission be implemented? I should also like to make the point that I do not agree with certain aspects of the report produced by the Law Reform Commission, nevertheless, in so far as they deal with the artificiality of the modern concept of domicile, there is merit in some of their proposals.

The Deputy is correct, a report on this subject is available from the Law Reform Commission. The matter is being examined by my officials and we hope to intensify this examination as quickly as we can bearing in mind what is involved. We hope to do so within the timescale outlined by Deputy Shatter.

Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

I should like the Minister to address the implications, particularly because it relates to the lower courts of jurisdiction, of legal aid. He will remember that we drew attention to the observation in the Explanatory Memorandum that there would be no implications for the Exchequer in terms of providing legal aid and that the best service would be made available to litigants coming from other countries who wanted to pursue their judgements or maintenance orders in this jurisdiction. On Second Stage I also referred to this matter and I had hoped that the Minister would consider it in the intervening period and give us an explanation as to how this could be stood over.

Paragraph 68 of the Explanatory Memorandum states:

Article 44 of the 1968 Convention provides that an applicant for the enforcement of a judgement, who has been granted legal aid in the state of origin, shall, in relation to the initial enforcement proceedings, provided for in Articles 32 to 35 (i.e. up to and including the decision authorising or refusing enforcement), be entitled to the most favourable legal aid available in the state addressed. Since the initial proceedings will be ex parte the cost to the Exchequer of providing legal aid for these purposes is likely to be insignificant. The Bill has no staffing implications.

Has the Minister had an opportunity in the interim period to consider that afresh? Could he give some indication as to how he considers the impact will be insignificant? What does he consider to be the best legal aid facilities, given the fact that currently there are virtually none by reason of the overload of our full time law centres and the fact that funding has now been withdrawn by the Combat Poverty Agency to the voluntary organisation FLAC? How does he consider that the Bill would have no staffing implications?

Article 44 of the Convention relates only to the case where it is sought to enforce a foreign judgement in Ireland. It provides that, where an applicant for enforcement has benefited from legal aid in the judgement granting country, in the procedures provided for in Articles 32 to 35 that is the ex parte application for the enforcement of a foreign judgment in the judgment enforcing country, that applicant will be entitled to the most favourable legal aid available in the country. It can be seen therefore that the Convention provides for legal aid only in relation to the ex parte enforcement stage. In all other cases the normal rules governing the availability of legal aid in this country will apply.

Insofar as the scheme of civil legal aid and advice is concerned generally, I have already stated that the Convention imposes an obligation on us in that regard. No one knows better that I the constraints under which the Legal Aid Board has to operate, both in relation to staff and financial resources. Nevertheless, I am confident that our obligation under the Convention will be fully discharged. Ratification by Ireland of the European Agreement on the transmission of Application for Legal Aid would be of assistance to the board in this regard, and I am hopeful that we will be in a position to sign that Agreement in the near future.

Has the Minister drawn the implications of this Bill to the attention of the Legal Aid Board and to those officers who give so heroically of their energy working in the law centres around the country? Are they happy with the position? Are they happy that there will be no staffing implications in the implementation of this Bill? Are they happy that they will be required with their present staff levels to provide the best available legal aid to foreign litigants coming here who are entitled to legal aid in their home country? It is important to understand that it will not be a question of means testing here or a question of considering the range of areas covered under our law. We have a very limited area of legal aid cover but that is not the criteria on which a decision will be made. A decision will be made on the availability to the litigant of legal aid in his own country. The Minister is looking at this problem through the wrong set of glasses. The implications are wider than he believes they might be. I wonder if the Minister has even reconciled the operations of our legal aid scheme and its restrictions both in income and subject matter to the legal aid provisions available in all other European countries whose litigants will be coming here looking for redress.

This matter has been discussed with the Legal Aid Board. They are aware of their obligations under this Convention and they are satisfied that they will be able to meet any requests made of them. The best advice available to me indicates that we may expect no more than perhaps half a dozen cases in 12 months. The Legal Aid Board believe they will be able to meet their commitments here.

Will the implementation of this Bill with regard to legal aid involve the drafting of new regulations for the purpose of the operations of the Legal Aid Board?

I believe not, Deputy.

In the context of the procedures that operate under this Bill we will be seeking to have Irish orders enforced in other jurisdictions. The area in which this will arise most often in practice will be in the context of maintenance orders being enforced in other European countries. Arising from the issues Deputy McCartan raised, is the Minister satisfied that where our legal aid centres are providing free legal assistance to wives seeking to enforce maintenance orders in Ireland, the necessary legal assistance will be afforded in other Convention countries to Irish wives where such assistance is necessary with regard to the enforcement of orders outside of this country where such orders have originally been made by our courts?

I understand that the Convention does not provide for any special procedures for an application to recognise and enforce a maintenance order.

The normal procedure for an applicant who is not eligible for civil legal aid would be to make arrangements through a solicitor in Ireland to have an appropriate member of the legal profession of that country bring an application for enforcement there. The costs involved in a successful application for enforcement would normally be recoverable from the maintenance debtor.

In the case of a maintenance creditor who is eligible for civil legal aid, she will have obtained legal assistance in Ireland when bringing her action for maintenance and therefore under Article 44 of the Convention she will be eligible for legal aid from the authorities of the country in which she is seeking enforcement. I will be asking the Legal Aid Board to make arrangements where appropriate to ensure a smooth transfer of such cases to their counterparts in other contracting states.

In the case of the United Kingdom, special arrangements already exist whereby the maintenance creditor makes an application to the registrar or clerk of the court in Ireland which made the maintenance order. The clerk then prepares the necessary documentation and transmits it via the Master of the High Court to the appropriate authority in the United Kingdom which arranges for its enforcement.

There may be difficulties in extending this type of arrangement to other contracting states as all states do not have a central receiving authority for the enforcement of maintenance orders.

This Convention in the maintenance area is of assistance in so far as wives have maintenance orders made in Ireland where husbands have deserted or disappeared to some other part of Europe. In real terms the wife has gone to one of the Government law centres initially for a maintenance order and if the husband does not obey the maintenance order, she will not have fees available to pay the foreign lawyer to undertake enforcement measures. Because we will now be operating reciprocal arrangements with the various members of the EC who are parties to this Convention, it would be of assistance to wives in these circumstances and to solicitors who are understaffed and overworked in the law centres if the Legal Aid Board put together a small booklet for the solicitors——

A very good idea.

——setting out the legal aid arrangements that are applicable in each of the European jurisdictions that are parties to this Convention. Otherwise, a lot of time will be spent by law centre solicitors in unravelling the legal aid provisions in other jurisdictions. We are familiar with the British Isles position but we are not so familiar with the position in Germany and elsewhere. As someone who has some experience in dealing with the German legal aid system, I know it would ensure that this Convention will work efficiently in this area. It will ensure that wives seeking to enforce support payments outside of Ireland and the UK will have faster access to lawyers outside of Ireland and the UK when they need to do so and it will facilitate the workings of the law centres. That should be implemented as a practical measure to ensure that when this Bill is passed it will work smoothly in this area and will be seen to provide help to many wives who currently cannot get that type of help.

The Minister is nodding assent to that exhortation.

The case will be looked into and we will have a discussion on it.

Question put and agreed to.
Section 15 agreed to.
First, Second, Third, Fourth and Fifth Schedules agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage? Now. Since there are no amendments on Report Stage we move to Fifth Stage. May I ask the Minister to move: "That the Bill do now pass".

I understood that all we were taking at this point was Committee Stage. I did not realise that all Stages had been ordered. I had indicated I wanted to examine the matters——

If Deputy McCartan does not mind me interrupting him, I am quite prepared to leave Report Stage over if it will accommodate Deputies.

I will facilitate the Minister.

I should welcome that opportunity. It would not take up much time in the House in the coming week. We could deal with it very conveniently any evening.

How about early morning?

I am here all hours.

Could we have agreement, albeit temporarily, to a possible date?

Wednesday morning next, subject to agreement between the Whips.

That is acceptable.

Report Stage ordered for Wednesday, 2 December 1987, subject to agreement between the Whips.
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