Dáil Éireann debate -
Wednesday, 7 Oct 1998

Vol. 494 No. 5

Jurisdiction of Courts and Enforcement of Judgments Bill, 1998 [ Seanad ]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Roche

Before the break I made the point, which arose from a very interesting contribution by Deputy O'Sullivan, that I would take a rather different view from hers on the issue of the administration of justice, equality and law reform. I take the view that there is no violence to the objectives of equality and law reform in the present administrative arrangements. I suggested to Deputy O'Sullivan and others that it would be detrimental to good administration to start breaking up the Department again. I have, however, sympathy with the general principle Deputy O'Sullivan sought to highlight that there is a clear and obvious need for the issues of equality and law reform to be kept very much to the fore in political and administrative terms. I also share her view that certainly in the past the Department of Justice, Equality and Law Reform has not always acquitted itself well on that issue.

The legislation before us is quite complex but does not require a lengthy debate. There are two specific objectives, both of which are of considerable interest. The first objective is to ratify the Accession Convention for the three most recent additional member states in the Community. The only question which arises is, although these three states have been full members of the Community for some time, why has it taken us a long time to get around to the process of ratification. I make the point to the Minister that it is not the fault of this or the previous Administration but it highlights a problem in Europe which is the very complexity of what we could call, broadly speaking, the constitution of Europe.

As the Community has grown larger in terms of numbers and more complex we have a heterogeneous group of documentation which passes as a constitution, ranging from the original Treaty of Rome, the merger treaty, the new accession treaties, the SEA, the Maastricht Treaty on European union and the Amsterdam Treaty. We have an extraordinary array of documents, a small library. It strikes me as rather bizarre that for something so fundamental to the creation of a true Common Market as the enforcement of judgments, there should be a time detail in its implementation. It is not the fault of this or any previous Administration but rather the way business is done in the EU. It seems a little odd that there is a time lapse in this regard. The time lapse arises because of the manner in which the EU is instituted and because the EU has failed to put in place a consolidation treaty which would replace the collection of conventions, accession treaties, the original treaties and the amending treaties which we regard, in effect, as the constitution of Europe.

The primary objective is, in many ways, to provide a set of legal provisions for the speedy and formal recognition by member states of judgments handed down by the courts of other member states, which is particularly welcome. The convention to which the Bill refers means, as other speakers said, that there is now a European-wide system of enforcement of judgments in the civil and commercial spheres, which must be welcomed. It is extraordinary if one considers the situation which has pertained until recent years. While we have a common market and free movement of goods, trades and services, we have a deficiency on the legal side in that if a person, party or parties to a contract wishes to avoid their responsibilities, they have effectively been able to avoid those responsibilities because of the complex and non-uniform nature of European law. The conventions, the legislation before us and all that is intended in that regard is very welcome.

I am, however, concerned that we should see access to all aspects of the thorny issue of judgment enforcement dealt with. There is some confusion as to the true intent of the Bill because I had to do a double take having listened to some of the earlier contributions. Having read the legislation and the Minister's speech on Second Stage in the Seanad, I was strongly of the view that it was focused directly, specifically and solely at commercial law, but having listened to earlier contributions I thought it also applied to issues of private law, particularly matrimonial issues and those which arise from marital breakdown. That is not the case and the confusion which exists in the debate on this Bill well illustrates the point that there is a major lacuna in European law. The Minister rightly said in his speech that on 28 May Ireland signed a convention on jurisdiction and enforcement of judgments in matrimonial and other matters.

While I compliment the Minister on coming to the House early with this legislation, I had hoped when we reached this stage we would also see the legislation which necessarily flows from that. The Minister will share my concern that there should be uniformity in the issue of court judgments enforced across borders in the Community. It appears Europe has a challenge to meet in terms of emphasis and focus, particularly on the harmonisation of law. There are two issues on which I fault Europe. The original Article 220 proposed that there would be progressive harmonisation throughout the Community and that proposition was included in the Treaty of Rome. However, while the measures in this legislation and the conventions are welcome, it has taken us 40 years to create a degree of harmony and, therefore, a degree of justice in the issue of jurisdiction and enforcement of judgments.

It is complex and difficult for a corporate company to argue its case, but it is even more difficult for a private citizen of the EU to do so. While I welcome the fact that a convention on this issue was signed in May 1998, I had hoped that when we saw the next convention on the cross border enforcement of judgments, we would have dealt with the totality of the enforcement of judgments. Europe has suffered from this major lacuna and it is an issue that goes to the very heart of the public perception of what Europe is about.

There is a perception in Ireland, and in other member states where there is more cynicism about Europe, that Europe is about corporate bodies and is not focused enough on non-commercial issues. It does not have a human face. This has meant, for example, that judgments in areas such as divorce, bankruptcy, succession and a variety of other private matters have not been given sufficient urgency. It is regrettable that this convention focuses on the commercial aspect of the enforcement of judgments only. That sends out the wrong message.

A consequence of the complexity of European law is that a person can still, with absolute impunity, escape across an EU border and fail to fulfil his or her responsibilities. However, the intent of the Bill is welcome. It is a little delayed, but we can hardly blame the current Minister for that, although he has broad shoulders and takes a great deal of blame for everything else. Neither can we blame him for the 40 years it has taken to implement the objectives of Article 220. The Bill contains a number of weaknesses. We are not discussing the totality and enforcement of judgments in ordinary civil cases, particularly those dealing with matrimony, separation and inheritance. There is a lacuna in the law in this area because there has been too much emphasis in Europe on the commercial and economic sector and too little on the individual.

The Bill is long overdue because corporations can avoid their responsibilities by hiding behind the complexities which arise from the heterogeneous nature of the body of corporate law which applies across member states. I have taken issue with this for a long time. There is an urgent need in Europe for a strong effort to consolidate the massive amount of European law that exists. The students to whom I lecture are continually dismayed by how there can be so many primary documents, accession treaties and amending treaties. Now that Amsterdam is out of the way we are working on another succession of treaties and will get ourselves into more difficulty. It is time the people who direct our feet at European level gave some thought to this issue. Cynicism is growing about Europe because people believe it has more to do with business than individuals.

I am an ardent supporter of Europe as it allows men and women from all member states to come together and share commonality. The greatest aspect of the Maastricht Treaty was the creation of a common European citizenship, a sense that we belong to a single grouping. That is simply so much paper until we get on with the harmonisation and consolidation that is needed across the board. I compliment the Minister and compliments are also due to his predecessors.

We can rightly be proud that at least on this occasion we are very much to the fore in enacting the necessary legislating and allowing the legal instruments of the State to give effect to these provisions. However, the caveat remains and I am still waiting for the detail to flow from the convention signed on 28 May 1998.

Ms McManus

Deputy Roche made a number of valid points. However, I do not agree with his initial response to Deputy O'Sullivan in regard to the Department of Justice, Equality and Law Reform, even though he should be right in what he said. However, the evidence is clear that he is not right in this regard. A previous Taoiseach was quoted as saying "We know it works in practice but does it work in theory?" The theory is correct, that a large Department with resources should be more effective and able to deliver the goods in terms of legislation, but when there was a Department of Equality and Law Reform and even though the system was fragmented, it delivered the goods. The record is there for all to see.

I was critical of the budget when that Department was set up. Its budget was smaller than that for an average sized UDC, but it produced difficult legislation that was needed. The lesson to be learnt is that while we can argue for a streamlining in departmental responsibility, we must also have at its core the political will to do the business. I am highly critical of the Government for putting equality issues on the back burner and unnecessarily concentrating a tremendous amount of resources on dealing with sledgehammer legislation and providing prison places that are inappropriate for current needs.

However, I welcome the Bill as it will enable the State to ratify the convention on the accession of Austria, Sweden and Finland and sets out to consolidate the provisions of the Jurisdictions of Courts and Enforcement of Judgments (European Communities) Act, 1988. While it is a lengthy Bill, its purpose is to simplify the procedures whereby the public can have redress in the courts when necessary on a transnational basis. It is probably of more interest to lawyers than the general public, but it is an important step forward.

In light of the globalisation of economic activity, the legal framework within which it takes place must be strengthened and streamlined. The internationalisation of law enforcement should automatically follow the internationalisation of trade, but it does not necessarily follow speedily enough and its framework is not well understood. We need only recall our recent experience in regard to the referenda on the Maastricht and Amsterdam Treaties when the public were mystified about the choice they were asked to make. It was not an informed judgment that led people to vote in those referenda. This is a matter we need to address not only at European level but in this House. The conventions to which we subscribe and the EU directives are not examined sufficiently by Members for us to be satisfied we can provide an accountable system for the public. That raises issues about how to deal with the deficit.

Arguments were put forward by the constitutional committee that we should enable and require the Seanad to adopt a new role whereby it would examine such conventions and thereby create a bridge between what happens here and what happens in Europe. There are valid arguments for creating new roles for the Seanad to enable this type of debate and scrutiny to take place. It is not acceptable or desirable that wide-ranging changes are being agreed at European level while the system here is not able to plug in to what is being proposed at international level and, more importantly for us, at EU level.

The opportunity was taken in the Bill to make applications to the Master of the High Court rather than the High Court. We recognise the suitability of that approach because the High Court route is cumbersome and slow. Only two or three cases at most are taken in the High Court in a day while the Master can process 30 or 40 cases a day. While that arrangement would be more efficient procedurally, it raises questions, particularly about the operation of the Office of the Master of the High Court. According to the Bill this arrangement would have financial or staffing implications, but I question that assertion. How does the Minister intend to address the need for additional staff in the Office of the Master of the High Court? I hope he will reply to that question. There is considerable documentation in transnational procedures and it is impossible to streamline the system in the way proposed without raising the issue of the need to provide additional resources and staff.

Other speakers referred to the issue of maintenance orders. I appreciate this is not a central issue in this Bill, but we need to refer to it because too many men believe they can evade their responsibilities to maintain their families. Many women and children are totally dependent on payments on foot of maintenance orders, yet they may have great difficulty tracking down a reneging husband. That applies here as well as transnationally. I know of one poignant case where a wife has a legitimate order against her husband for maintenance, but he told her that if she serves it he will leave the country. She therefore faces the dilemma of whether to ensure her children continue to know their father, albeit at one remove, or to serve the order and avail of her right to maintenance as a result of which her children will lose out because they will not have access to their father. Women are faced with that dilemma all too often in marital breakown cases. However, we must remember that legal action can and does produce the goods.

I am aware of another case where $200,000 in maintenance payments was recovered in the District Court as a result of an action taken by the Central Authority. That body was set up under the Maintenance Act, which was a very important development. Obviously attitudes take longer to change than the law and errant husbands will continue to do their best to avoid their responsibilities in respect of maintenance payments. Anything we can do to ensure they meet their responsibilities is important and worth noting.

There are a number of references to domicile in the Bill. Having regard to how slowly attitudes change and the importance of legislation in changing them, it is not very long ago since the domicile of a husband was automatically the domicile of his wife. In other words, if a man lived in Timbuktu and his wife lived in Tralee her domicile was Timbuktu. That is an indication of how we can bring about legal change which can help change attitudes and assist in the development of equality.

As there is already an overload of work in the Office of the Master of the High Court, will the Minister clarify the arrangements that will be made for dealing with additional work? When payments on foot of maintenance orders or judgments are made in foreign currencies, account must be taken of fluctuations in currency values. A review mechanism must be sufficiently flexible to take account of such fluctuations. Will the Minister clarify that position? If co-operation in this area is to be effective, we must ensure there are reciprocal arrangements and that all countries will play their part.

Speakers here and in the Seanad spoke about extending this type of co-operation into the area of criminal law. Serious crimes have been committed against Irish nationals abroad and the families of the victims have encountered great difficulty in gaining access to the police and the judicial system which may operate in a radically different way from ours. I am mindful of cases of young British and Irish nationals who were murdered in France and the great distress and difficulties encountered by their families in trying to work their way through the judicial system which is radically different from ours. It is important that proper reciprocal arrangements are put in place. To ensure that, we need to put in place a monitoring system at EU level to judge how this will work in practice. It may work in theory, but it must also work in practice. Such a monitoring system must examine the functioning of this legislation. We should learn from that and ensure it works for those for whom it is designed. They must have confidence in a system which is very often at one remove because of its transnational character. In general I welcome the Bill.

Ms Hanafin

Tá áthas orm an deis a ghlacadh labhairt ar an ábhar seo. In ainneoin gur bille teicniúil é féachaim air mar chéim ar aghaidh eile in aontas na hEorpa.

Baineann an Bille le trádáil agus gluaiseacht idir tíortha na hEorpa agus de réir mar atá sin ag méadú caithfimid cosaint a thabhairt do daoine. Ba chóir duinn cosaint a thabhairt do ghnó agus do lucht ghnó.

This Bill can properly be described as a necessary consequence of the increasing success Ireland has achieved in foreign trade. Its provisions relate to the enforcement of judgments in civil and commercial matters, a necessary by-product of international trade, and to the mechanisms by which such judgments can be enforced in this jurisdiction.

Our role is to foster, in so far as it lies within our power, a climate where the conduct of international trade can be facilitated. This role was recognised by the six original members of the European Community who, in 1968, enacted a convention which provided for simple procedures to enable judgments obtained in one member country to be enforced in the others. The enlargement of the European Community required periodic updating of that convention to extend its provisions to new member states. Therefore, in 1978 and 1982, the convention was amended to make provision for the entry of Denmark, Ireland, the United Kingdom and Greece.

In Ireland, the amendment of the convention was enacted in domestic law in the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988. The convention was again amended in 1989 to extend its application to two new member states, Spain and Portugal. This new development was in turn enacted in Irish law by the Jurisdiction of Courts and Enforcement of Judgments Act, 1993, which also gave effect to the Lugano Convention in domestic law. This latter development had the effect of bringing Austria, Finland and Sweden — the European Free Trade Association countries — within the net of nations covered by the convention.

This Bill is necessary to update our domestic law to keep abreast of developments on the European stage. In addition to this essential role, it also has commendable features for simplifying the Irish procedures required to enforce foreign judgments. Many of the complexities of the Bill are necessitated by the different legal systems which operate in different European countries.

Many European countries with which Ireland now enjoys substantial commercial links have legal systems which utilise procedures and instruments which are unknown to our constitutional common law legal system. Authentic instruments and settlements which are common in Europe are unknown in Ireland. This can cause difficulties for Irish individuals and companies which seek to enforce those creatures of the civil code system in our courts. One of the chief provisions of the Bill is to provide for the enforcement of these instruments in Ireland.

The provisions contained in section 6, which will enable the necessary application to be made to the Master of the High Court rather than the court itself, should result in a speedy and cost effective method of implementation. The fact that in the future these provisions will also apply to maintenance obligations concluded with or authenticated by administrative authorities is particularly welcome. Arising from the Bill, Community judgments shall be of the same force and effect as a judgment of the High Court. A more effective enforcement is ensured by the Master of the High Court who can make declarations in relation to periodic and lump sum payments. This is particularly important where the debtor does not reside but has assets in the State.

Although the Bill relates largely to commerce and trade, section 9 relates to matters of concern to the wider community in so far as it relates to maintenance orders for spouses and children. Strict procedures and protections are given to families where maintenance orders are made in this country, which in themselves have been difficult to enforce, but often there have been severe difficulties in enforcing orders made in another country against persons domiciled in Ireland. The Bill will protect women and children who are dependent on those payments but who have had difficulty having their order enforced. Ireland no longer will be a safe place of escape for maintenance defaulters.

The Bill does not cover a number of issues, including criminal matters and issues in relation to revenue, customs or administration. It does not cover wills and succession or relate to divorce or legal separation. Many of these are dealt with elsewhere and many of them have been and I hope will continue to be, because there is a need for them, the subject of other protocols, agreements and legislation.

The Bill is still relevant in an era where we have more mobility and commercial interaction. It is relevant in the practical enforcement of the treaties on which we voted in Ireland, including the Maastricht Treaty and the Treaty of Amsterdam. It is relevant in so far as it takes us on our next step of co-operation within the European Union of which we are a member.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank Deputies who contributed to this informative debate. In general the observations made by Members were useful and constructive. However, I reject emphatically the assertions of Deputy McManus and Deputy O'Sullivan that joining the Departments of Justice and Equality and Law Reform has in any way lessened the effectiveness of the Department. Nothing could be further from the truth.

Since the Department of Justice, Equality and Law Reform was established in late June 1997, the equality and law reform section has been responsible for more legislation than at any other time since its inception. The legislation drafted by that section of the Department since the Government came into office includes the Employment Equality Bill, the Parental Leave Bill, the Arbitration Bill, the Children Bill and two tribunal Bills. In addition, the Solicitors' Bill and the Family Law (Protection of Children) Bill have been published, although they have not yet been debated. By any standards this is a tremendous performance and I am very grateful to the excellent staff.

If one compares the number of Bills enacted by the previous Administration over a much longer period, it can be seen that the amount of legislation emanating from the Department of Justice, Equality and Law Reform compares more than favourably. For example, in 1996, the Civil Liability Bill, the Births Registration Bill, the Family Law (Miscellaneous Provisions) Bill, the Family Law (Divorce) Bill and the Domestic Violence Bill were introduced. In other years less legislation than the current amount was produced. The allegation is entirely spurious and was made merely for political purposes. It has no basis. However, on this of all days, the House will forgive the Labour Party and Democratic Left for making spurious allegations because they have been suffering all morning and yesterday afternoon from collective and selective amnesia from which I hope they recover at an early date.

I note Deputy Higgins's comments regarding consolidation, but we have at least made a start with this Bill. In addition to responding to certain points raised by Deputies during the debate, I will refer to a number of other issues which may help put the measure in context. On the face of it, the Bill is technical in nature. However, it is primarily a consolidating measure. It repeals and re-enacts the Judgments Acts, 1988 and 1993, as well as amending certain sections of the Maintenance Act, 1994, which have been absorbed into the consolidated text. It will also enable the State to ratify the 1996 Accession Convention dealing with the accession of three new member states to the Judgments Convention.

The impetus behind the Brussels Convention as drawn up originally in 1968 was to give meaningful effect to Article 220 of the Treaty of Rome. That Article called on member states to secure "the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals". While the convention, because of its technical nature, may be more familiar to the legal profession than the public, the fundamental aim is to simplify legal formalities in the civil and commercial areas so that the relevant judgments are subject to almost automatic enforcement. While the Bill is a technical measure, as Deputy O'Sullivan pointed out, the Brussels and Lugano conventions have the capacity to impact in a practical way on people's daily lives, whether they be consumers or producers of goods and services. This is particularly the case where contractual obligations exist between two or more parties and where the legal action they are taking has a transnational dimension. If an Irish consumer purchases goods in another member state and those goods turn out to be faulty or are not delivered, the conventions enable them to bring an action before the Irish courts should they so wish. Similarly, if business and commercial relationships are to function with maximum efficiency, those engaging in contractual relationships across national boundaries must be assured that the full range of enforcement remedies are available to them, notwithstanding that the parties may be based in different EU or EFTA member states.

We are among the first of our EU partners to take steps to ratify the accession convention for Austria, Finland and Sweden. Only three other states have ratified this convention and it is scheduled to come into force for these countries on 1 December. I do not intend that there should be tardiness attached to our ratification process and once the Bill is enacted the process will begin immediately.

Deputy Higgins mentioned the need to minimise the delay between signature and ratification of a convention. It is well recognised that in most member states the practical work of giving effect to a convention only begins once it has been signed. Since legislation is often required and parliamentary procedures within member states vary in their complexity, it is not surprising that a certain amount of time can elapse before final ratification.

Since the Brussels and Lugano conventions came into operation in 1968 and 1988, respectively, the international environment and the needs of the various interests and sectors covered by their scope, in particular those involved in cross-border trade within the European Union and the European free trade area, have, as Deputy Roche said, changed dramatically. To ensure both conventions deal effectively with this changing environment and the growing challenges it imposes they are undergoing a comprehensive review by a joint working group of EU and EFTA member states. The aim of the review, which commenced in Brussels in January and which is expected to conclude before the end of June 1999, is, as far as is possible and practicable, to update, streamline and simplify the conventions in the case of their jurisdictional rules and the procedures they contain for the cross-frontier recognition and enforcement of judgments. This will allow them to operate more efficiently and effectively and to be better geared to meet the needs of the European society they serve. All EU and EFTA member states are participating in these discussions and all aspects of the conventions are covered by the review exercise. It will take into account not only suggestions for change and improvements made by individual contracting states participating in the discussions, but also developments in the large body of jurisprudence of the European Court of Justice which has built up during the years on the Brussels convention which applies to the circulation of judgments between EU member states whereas the parallel Lugano convention applies between EU and EFTA member states.

Under the Lugano convention it is possible for a state which is not yet a member of the European Union or the European Free Trade Association to accede to the convention provided it is sponsored by a member state and all signatory and contracting states agree unanimously to such accession. An application by Poland to accede to the Lugano convention has received the approval of all signatory states and its accession is expected to come into effect by the middle of 1999 following the expected deposit of its instrument of accession later this year or early in 1999. The net effect of Polish accession will be that Polish judgments which are in conformity with the jurisdiction rules of the Lugano convention will be entitled to recognition and enforcement in EU and EFTA member states, including Ireland, as will equivalent judgments from those states in Poland. Other applications of this kind are pending. In this context I refer to a point made by Deputy Higgins concerning the need to extend further the net of countries covered by the Brussels convention. The work which is ongoing in The Hague has some significance.

In addition to the review of the Brussels and Lugano conventions, civil judicial co-operation in general under Title VI of the EU treaty is progressing at a steady pace. Two conventions in the civil area have been negotiated under the Title VI arrangements. The convention on the service in the member states of the European Union of judicial and extrajudicial documents in civil and commercial matters was signed in May 1997. A convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters was signed on 28 May 1998. The Brussels II convention, as it is known, will when adopted by all EU member states, provide a system whereby a judgment given in one member state relating to matrimonial proceedings, namely, annulment, divorce or legal separation, will be entitled to recognition in all other member states. The adoption of this convention by Ireland will require legislation.

The Treaty of Amsterdam also provides for enhanced judicial co-operation in civil matters between EU member states. Such co-operation is part of the process whereby the objective of maintaining and developing the European Union as an area of freedom, security and justice can be achieved. I hope it will result in simplification of the convoluted procedures to which Deputy Roche alluded and a coherent body of law.

The areas covered by the proposed co-operation, in addition to recognition and enforcement of judgments in civil and commercial matters, include improvement and simplification of the system for serving legal documents; co-operation in taking evidence, and measures aimed at the elimination of obstacles to the good functioning of civil proceedings generally. An important element of the treaty is that measures falling within the area of EU co-operation will become a Union responsibility. What the new treaty provisions do is move judicial co-operation in civil matters closer to the centre of EU activity. This recognises that the Union has the possibility to be a judicial space as well as an economic power and that compatability within our legal systems can be a force which will impact favourably on our citizens. Against that background, the judgments' convention may assume even greater importance than it has and may be utilised more intensively than at present. I hope this Bill will help to make people more conscious that their legal rights have a genuine European and extra-territorial dimension.

I express my appreciation to Deputies on all sides of the House for participating in what has been a most constructive and useful debate. I look forward to the debate on Committee Stage.

Question put and agreed to.