This amendment seems desirable because it would reduce administration and costs. I would have thought an amendment of that nature would be very attractive to the Minister. Why should the Courts Service have a new tier of administrative filing of documents if that can be avoided? Currently all the pleadings will now be lodged in the central office at the High Court, the Circuit Court office for the county in which the action is brought and the District Court office for the district in which the action is brought. There will be a significant scattering of pleadings filed all over the place. Could we not wait until the proceedings are set down for trial as is currently done and retain the current system which I understand works perfectly well? If that is the wish of the practitioners and the Courts Service, who will be directly affected, some consideration should be given to their views.
Civil Liability and Courts Bill 2004 [Seanad]: Report Stage (Resumed) and Final Stage.
I have been considering how we could deal with the situation. It is accepted that my proposed amendment is sensible, that it is cost effective, that it will avoid a cumbersome accumulation of paper in court offices, that it is supported by the legal profession and is to the advantage of plaintiffs and defendants, and that it is of particular advantage to the Courts Service.
What the Minister has in mind is that evidence should be available in case of an allegation of perjury against a plaintiff. This could also apply to a defendant. Is it possible that if we retain the provision whereby an affidavit must be filed in the court office, the Minister would ensure that the original document on which a charge under the section would be based would be available, but that court offices would not be encumbered with all the paperwork involved in the pleadings?
Is the Minister prepared to operate on that basis and effectively agree to my amendment to delete sections 13(3), (4) and (5)? That would remove the requirement to file the pleadings on delivery. The situation regarding pleadings could then be covered by the rules of court and the pleadings would be filed if the action were set down. At the same time we could continue to provide in section 14 for an affidavit to be lodged in court. The original evidence, the sworn affidavit, would be available if required for subsequent proceedings. It is the only shortcut I can find in the time available to us.
If the Minister and his officials believe it could resolve the problem, it would save the Courts Service enormous sums of money. It would also save the Courts Service a fair amount of staffing and enable the Minister to achieve the objectives of having the original primary document, the sworn affidavit, available if required for proceedings. It is the best I can do to provide an answer at this stage in light of the fact that we have not enough time to devise any other solution. If that were agreeable to the Minister, I would be prepared to ask him to accept my amendment to section 13 and withdraw my amendment to section 14.
I support what Deputies Jim O'Keeffe and Costello have said so far on this. If this is to remain, as they have stated, it will be an additional cost on the Courts Service. Usually, when we table amendments, we are not allowed to impose a cost on the Exchequer. I do not know whether the Minister for Finance, Deputy McCreevy, knows whether the Minister is imposing an additional cost on the Courts Service in the extra work that it will have to do in dealing with the extra caseload at the various courts. Perhaps the Courts Service will come looking for an extra grant from the Minister to deal with this.
The proposal is essentially that we delete everything from line 36 to line 44. That would allow for the rules of the court to decide how such pleadings are lodged and enable the rules to be changed if the system were not working, were overburdened or required tweaking. It is much easier to change or tweak the rules of the court regarding certain circumstances than, if the place is inundated and the system is breaking down, to have to return here with additional legislation because we have tied the hands of the Courts Service by saying that things must be done in a certain way. The Courts Service would prefer the system to be left as it currently stands and that it could regulate or change it through the rules of court in future.
There is no doubt that Deputy Jim O'Keeffe is persistent. He has persuaded me that I should get rid of section 13(3) to (5), inclusive. I intend that the rules of court will specify that the affidavit to be lodged under section 14 have annexed to it or exhibited in it the pleading being verified.
That would cover it. That solves the problem. On that basis, I ask the House to accept my amendment to section 13, and I will withdraw amendment No. 14.
I move amendment No. 15:
In page 14, line 3, after "where" to insert "a plaintiff decides to swear such an affidavit or".
We discussed this on Committee Stage. This is to make provision where a plaintiff could decide to swear an affidavit voluntarily. It relates to personal injuries actions. Anywhere there is scope for voluntary action, it should be availed of. It might be thought that it is not likely, but it should be invited in the legislation.
People can swear affidavits all they like, but I am not providing for what they do with them when they swear them or what their consequences are. I would prefer to leave it so that the mandatory affidavit is the one dealt with in the Act. If people wish to swear other affidavits, that is their business, and I will not stop them doing so. I want section 14 to operate simply so I am not accepting the amendment.
I am not moving amendment No. 16 as the Minister has accepted an amendment which covers its intent.
Amendments Nos. 18, 20 to 22, inclusive, and 24 are cognate and may be discussed together, by agreement.
I move amendment No. 18:
In page 15, line 34, to delete "final" and substitute "formal".
I said yesterday that I proposed to delete the word "final" and substitute the word "formal". That should be done since I do not want anyone to suggest that it marks the end of the whole process. I would therefore prefer to do that on this occasion.
I signalled last night that I would table amendments. I move oral amendment No. 18a:
In page 15, line 41, after the word "action" to insert the words "have regard to".
I move oral amendmentNo. 18b:
In page 15, line 42, to delete the words "have regard to".
This is because "have regard to" has been inserted in paragraph (a) when it should have been distributed over paragraphs (a) and (b).
The two oral amendments make sense as it is obviously better drafting to have the words "have regard to" covering paragraphs (a) and (b). The change from “final” to “formal” also makes a great deal of sense in that it leaves the door open for further discussion.
I move amendment No. 19:
In page 15, line 35, to delete "court" and substitute "the office of the court".
This amendment is to substitute the words "the office of the court" for the word "court" in line 35 on page 15. It is to obviate the possibility that the offer might go to the court itself before it reached its decision. It was suggested by the County Registrars Association, which did not want those offers being waved around in court under a judge's nose. Even if he did not look at the terms of the offer, people might draw conclusions from the fact of its happening.
I understand the Minister's thinking but has he thought the change through? When we spoke about pleadings we referred to filing pleadings in court. If the Minister looks at the reference to the affidavit in section 14(4) the requirement is that it "shall be lodged in court". That expression is commonly used for the purpose of filing documents in the court office. When we talk about making a lodgement on behalf of the defence we make a lodgement in court. There is a slight problem about changing the terminology in this case because there is an old rule to the effect that when there is express mention of certain things, anything not mentioned is excluded. It could cause problems because if we change it here and refer to lodging in an office in the court we are not so providing in all the other parts of the Bill. Anything else is merely being lodged in court as in the example of section 14(4). From a technical point of view this change could cause problems.
I have consulted on the matter and will withdraw the amendment. Having regard to the language in section 14(4), which I am not going to revise, Deputy O'Keeffe's point may be right.
I move amendment No. 20:
In page 15, line 37, to delete "final" and substitute "formal".
Amendments Nos. 20a and 20b are oral amendments in the name of the Minister.
I move amendment No. 20a:
In page 15, line 41, after "action" to insert "have regard to".
I move amendment No. 20b:
In page 15, line 42, to delete "have regard to".
I move amendment No. 21:
In page 15, line 42, to delete "final" and substitute "formal".
I move amendment No. 22:
In page 15, line 44, to delete "final" and substitute "formal".
I move amendment No. 23:
In page 16, line 3, after "action" to insert "or the making of an offer of tender of payment to the other party or parties to an action".
This amendment is designed to cover the situation where money is not actually paid into court in satisfaction but "an offer of tender of payment to the other party or parties to an action" is made. There are some categories of defendant who are authorised to make an offer rather than to lodge and this is to take their special status into account.
I move amendment No. 24:
In page 16, line 5, to delete "final" and substitute "formal".
Amendments Nos. 25 and 26 are cognate and may be taken together.
I move amendment No. 25:
In page 16, line 9, to delete "order of the Minister" and substitute "rules of court".
In a sense this amendment relates to Deputy O'Keeffe's remark that the normal location for lodging pleadings is not the office of the court but the court itself. This goes a step further because here the Minister is taking unto himself the authority to determine when pleadings will be lodged and proceedings commenced, rather than leave the determination to the courts which is the normal procedure.
The courts committee deals with matters of this nature. While I understand the Minister's desire to take all power unto himself it would be cumbersome and impractical for the Minister to be able to prescribe the appropriate times, dates and periods. Why has he decided to do this? Does he feel that the rules of court system is inefficient and impractical, and is not doing its job, or that he is in a position to streamline the process by deciding the prescribed date and period?
As we provided under a previous amendment, nothing in this Act prevents the rules of court committee making a decision which is consistent with the Act with regard to a personal injuries action. Therefore, if I do not make any such order the rules committee at the relevant court can do so if it so wishes. I want to be in a position to ensure that this goes through.
As I explained on Committee Stage last night, the Minister is in a peculiar position in respect of most rules of court which are decided autonomously by a rules committee, and the Minister's function is to say "Yes" or "No". He or she does not have the power of initiative. I cannot direct a rules committee to propose a rule I think sensible. Giving me this power, however, does not prevent the rules committee from making a similar proposal were I never to commence the section or exercise the power, as long as that proposal was consistent with the Act. It is intended to give me the right to ensure it does happen rather than that it is put on the long finger.
The Minister does not have much faith in those who draw up the rules of court if he does not think they can come to a sensible conclusion on this issue.
I know what the Minister is saying but is that reflected in the legislation? Section 17(7) states:
"prescribed date" means such date before the date of the commencement of the trial of the personal injuries action concerned as is prescribed by order of the Minister;
This does not refer at all to the rules of court or to a committee set up to deal with the matter, which would be the normal procedure. There is a rules making committee but this specifically excludes it, or states categorically that the Minister makes the order. It says nothing about the present system whereby the rules of court prescribe and the Minister approves. If that was intended it should say so. This is not a Humpty Dumpty situation in which words mean what one wants them to mean. It is either prescribed by order of the Minister or not. If not, it should state that it follows the normal procedure of the rules of court.
I remain of the view that it is desirable I should have the right to prescribe a date. If I do not exercise this power or commence this section, or whatever, the rules committee can do so, if it thinks it is a good idea. I do not want this provision to depend entirely on the making of rules because it is an important section regarding a matter of ministerial policy that it should be commenced and have effect.
What does the Minister have in mind from the point of view of a prescribed date?
Much will depend on the court but the date will be fixed by reference to the trial of an action, depending on the advice I receive, and I will confer with the Courts Service on this issue. The decision may be that someone must make a final offer within ten, 14 or 21 days before the trial of an action, or within some period proximate to it. This will depend on a number of factors, including the degree of case management the courts undertake. Case management in the District Court and case management in the High Court are different propositions. However, I envisage that the pre-trial conferences provided for under the legislation will take place and that the parties will not be in a position to follow what has been the classical habit in Irish personal injuries litigation, namely, trial by ambush with nobody knowing what witnesses will be called by the other side or what issues will be involved.
I expect the Judiciary to take these pre-trial conferences seriously to the extent that it is reasonable to do so. If a case in the District Court involved an argument over €300, a pre-trial conference might be a complete waste of time. However, if it is a substantial case involving, for example, medical negligence, I expect that the Judiciary would, under the legislation, hold a conference well in advance of such a case being tried. It would be made clear to both sides at such a conference the witnesses to be called and the sequence of events to be followed. In addition, there would be a discussion as to whether all pre-trial procedures have been complied with, whether both sides are in a position to proceed, the evidence that is agreed and the evidence on affidavit that will be accepted under the provisions of the legislation. If a case is managed to that extent, it would be reasonable to say to the parties that they must make their final offers to each other 14 days prior to the date fixed for trial.
Is the Minister——
Deputy Jim O'Keeffe has already spoken on two occasions.
May I pose a question?
It should be a brief question.
Is the Minister taking into account the vagaries that apply in respect of trial dates and the fact that such dates will not exactly be fixed because of adjournments and the unavailability of judges?
The Deputy is going beyond asking a brief question.
What happens in the courts at present cannot continue indefinitely. We cannot have boards of witnesses hanging around for three days in the hope that cases will be called. We cannot have a system where doctors and specialists are required to stand around in court hallways waiting to give evidence. It cannot continue to be the case that people are informed that a case may proceed on a particular day or three days later and that they should hang around to see what happens.
I hope my colleagues in the Law Library and the solicitors' profession will not be too upset to hear me say that the new regime, which will involve case management, working out in advance the shape of a trial, bringing in evidence on affidavit, permitting people to testify effectively by affidavit and resolving conflicts of testimony between expert witnesses by means of the courts appointing their own experts who might swear affidavits and bring matters to a conclusion, will bring about an entirely new culture in the disposal of civil litigation.
I accept the implication made by Deputy Jim O'Keeffe that if the current system continues to obtain, final offers might not be final offers because people would continue to be unsure as to when their cases would be taken. I am optimistic enough to believe that, when the Bill becomes law, the Judiciary will be in a position to structure the entire trial process in a way which will give rise to the setting of definite dates on which trials will commence.
Everyone would agree with what the Minister said. We would like to see a situation where the courts would become more structured and where procedures would become more streamlined. I refer here not only to civil but also to criminal cases. However, I cannot see how the prescription he is laying down will improve matters. The Minister appears to be saying that the current rules of court system is not efficient or effective, that trial dates are not met and that no one is in charge of the way proceedings are dealt with. He also indicated that he wants to put an end to this. Under the legislation, the Minister will be able to decide, by order, the date of commencement of any proceedings.
That is not what I am saying.
Is he then going to make prescriptions in respect of every case that comes before the courts?
No.
The rules of court committee would normally deal with trials in civil liability cases. However, the Minister is assuming this responsibility and he will deal with it by order. How often will he intervene in cases? If, for example, a case of medical negligence comes before the courts and a formal final offer is made——
There is a total misunderstanding here.
The Minister has already spoken on three occasions on the amendment, which is out of order. He cannot speak a fourth time. Deputy Costello has replied to the debate on the amendment.
The Minister wants to clarify a matter for me.
This is not Committee Stage.
We are making good progress.
Amendments Nos. 28 and 29 are alternatives to amendment No. 27 and the three may be taken together by agreement.
I move amendmentNo. 27:
In page 21, to delete lines 28 to 39.
When we discussed this matter on Committee Stage, the Minister stated that he would contemplate whether details of the register should be placed on the Internet and come back to us on it. While we understand the need for a register, making it available on the Internet would seem to imply that those who have taken or are bringing personal injuries actions are somehow acting improperly or fraudulently. I accept that fraudulent claims have been made and it is my view that the names of those who are found guilty of making such claims should be placed on a register that is available to all. However, the majority of personal injury claims are brought for legitimate reasons. On some occasions these claims fail, while on others they are successful. The implication in section 30 is that people are engaging in something improper by taking personal injury claims. People should be allowed to take such actions without fear of any damage to their reputations.
The Internet gives rise to a major problem in that it is available to all and sundry. As stated on Committee Stage, the name, address and occupation of a person taking a claim will be listed on the Internet and they might then receive all types of spam and unsolicited mail. I am not an expert in computers but I am aware that the term "Intranet" usually refers to an internal network. If such a network could be made available only to those who operate within the courts system and if a company wished to check whether someone had made numerous claims, they could do so through their solicitors or barristers. That might be a way to make the material listed in the section available to those who are legal practitioners rather than to the general public.
If awards are made in cases, they become public knowledge. That is not the position in this instance, however, because the details of those who have made claims of any sort, regardless of whether they were successful, withdrawn or whatever, will be listed on the register. That would be regrettable.
Perhaps I can shorten the matter by indicating that I will accept Deputy Costello's amendments Nos. 28 and 29.
Does that mean allowing the name and address of the solicitor and that the register will be made available to such persons?
When reference to the Internet is removed.
That is the important one. How do we remove the reference to the Internet?
By means of amendmentNo. 29.
I am happy if the reference to the Internet goes. As far as I am concerned, that is where the problem lies. In any event, the inclusion of the Internet conflicts with data protection legislation. I am happy with Deputy Costello's resolution of the matter.
I am delighted the Minister accepts the amendment because there is merit in having a register. I am glad the register will also extend to the solicitor for each party to the personal injuries action.
Regarding amendment No. 29, I am content as long as the register is available to such persons as establish to the satisfaction of the Courts Service a sufficient interest in seeking access to it and that the reference to publication on the Internet, which is virtually a global publication, is deleted. It is a considerable improvement and I thank the Minister for it.
I move amendment No. 28:
In page 21, between lines 31 and 32, to insert the following:
"(a) the name and address of the solicitor for each party to a personal injuries action,”.
I move amendment No. 29:
In page 21, to delete lines 36 to 39 and substitute the following:
"(3) The register shall be made available to such persons as establish to the satisfaction of the Courts Service a sufficient interest in seeking access to it.".
I move amendmentNo. 30:
In page 22, line 9, to delete "requirement."." and substitute the following:
"requirement.
(3) Nothing in this section shall apply to require the disclosure by a solicitor of records, documents or information which——
(a) would place the solicitor in breach of his professional and legal duty to keep confidential all matters coming within the solicitor/client relationship, or
(b) would normally be subject to legal professional privilege.’.”.
This is another issue which we dealt with in some depth on Committee Stage. The purpose of the amendment is to ensure client confidentiality, which is a basic principle of law recognised by the Irish courts. It is also part of European Community law and the European Convention on Human Rights. In addition, it is a long established principle of common law. The principle is justified because it ensures clients are able to consult solicitors without fear that their communication will be disclosed to third parties or used as evidence in court. It is vital that nothing compromises client confidentiality. There is a danger that pressure would be brought to bear on clients and their solicitors to disclose information, which up to now would not have been required, in the way the legislation is currently drafted. The amendment would ensure solicitors would not be in breach of their professional duties to keep the relationship between solicitors and clients private.
What we are talking about here is a requirement by certain persons to provide information to the new PIAB. We discussed this at length on Committee Stage and I had hoped the Minister would consider the points raised. There are serious problems with the requirement to furnish information which might breach solicitor and client confidentiality. To a large degree, our system has been based on such confidentiality, going back to the first establishment of attorneys some 100 years ago. Client confidentiality is recognised in the Irish courts and the law of the European Community. It would also contravene the European Convention on Human Rights. However, I accept that the matter is subject to all the requirements of justice. If there were matters of a criminal nature, perhaps confidentiality would be capable of being breached but in normal civil matters it has been recognised at all times that a solicitor has a professional duty to keep confidential all matters coming within the solicitor and client relationship.
To require solicitors to disclose records of documents to the PIAB would be a significant encroachment on the principle of client confidentiality. We should not do so without examining the proposal with great care. Solicitor and client confidentiality should not be breached except by order of a court or by a tribunal. The notion that a board could, of its own volition, require the production of documents or information from solicitors, which could lead to an encroachment on the principle of solicitor and client confidentiality, is something I find very difficult to accept.
Although I am a non-practising member of the legal profession I am not here to defend the interests of the legal profession. The intention is to seek to defend the interests of those who rely on the legal profession. I am seeking to defend the client's interest. This could lead to unwelcome consequences. I urge the Minister to reflect on the background to this and accept that this principle should not be breached in this fashion. Client confidentiality could probably be regarded as a constitutional right. A person should be able to have confidence in his or her relationship with a lawyer. Article 8 of the European Convention on Human Rights relates to the right to privacy. I feel very strongly that this fundamental change should not be introduced in this fashion.
I understood the Minister had agreed to reflect on the matter overnight. Something of this nature should not be put into legislation. The principle of client-lawyer confidentiality is contained within existing legislation. It is a bit like the confessional where anybody going to priests in the confessional can disclose information, or be asked to disclose it, but the exchange is conducted in a confidential and private fashion.
Section 54A requires:
The Board may require any person (including a Minister of the Government or a body established by or under any enactment) to provide it with such records, documents or information as it may reasonably require for the purposes of the performance of its functions.
If the board can require the client to provide all the documents it requires for the purpose of the performance of its function it does not need to interfere with the client-lawyer relationship. Any documents that are relevant can be got from the other source. I do not see why the legislation should intrude on that particular confidentiality and privacy. This provision will cause considerable difficulties among the legal profession in terms of its code of conduct. It should not come as any surprise to the Minister that the Law Society is not happy with the provision. The Law Society's guide to professional conduct for solicitors states that a solicitor has a professional duty to keep confidential all matters coming within the solicitor-client relationship, including the existence of that relationship. All of that would be breached straight away by this provision. The guidelines also state that these matters can only be disclosed with the consent of the client or by direction of a court. If we put this provision in legislation it would be difficult to maintain it on a constitutional basis and in terms of the European Convention on Human Rights. It is not worth going down that road for the difficulty it would cause in terms of being questioned by the legal profession and civil liberty bodies.
Deputies Jim O'Keeffe and Costello have put their fingers on the matter. The legal professional privilege is a constitutional matter. Confidentiality in these matters is probably guaranteed under the European Convention on Human Rights. This has two consequences, first, any statute must be construed in a constitutional manner and, second, as a matter of statute law, this Bill, when it becomes law, must be interpreted in a manner consistent with the European Convention on Human Rights.
It is worth considering the purposes for which this information may be sought. The new section 54A states: "The Board [the Personal Injuries Assessment Board] may require any person (including a Minister of the Government or a body established by or under any enactment) to provide it with such records, documents or information as it may reasonably [the word "reasonably" must also be put into the balance] require for the purposes of the performance of its functions under section 54(1)(c).” Section 54 of the Personal Injuries Assessment Board Act 2003 sets out the principal functions of the PIAB. Section 54(1)(c) states that one of the principal functions shall be “to cause a cost benefit analysis to be made of the legal procedures and the associated processes (including those provided for by this Act) that are currently employed in the State for the purpose of awarding compensation for personal injuries”. This means the PIAB has power to require persons to give it records from time to time to calculate the cost benefit analysis of one system versus another.
In that context, I can say as a matter of certainty, as a matter of constitutional construction, that it could not possibly be used as an attempt to breach lawyer-client privilege. This is because it would have to be reasonably required for a cost benefit analysis and I cannot imagine any circumstance in which in any individual case the information exchange between a solicitor and his client under privilege would be required.
In addition, in any event this section must be constitutionally construed. I agree with Deputies Jim O'Keeffe and Costello that this measure is one which cannot trench on a constitutional right and therefore it could not be applied in a circumstance which would seem to authorise a breach of a constitutional right. Even if somebody were disposed to baldly interpret it in that way and ignore the Constitution, which I reject as a hypothesis, it would have to be reasonably done. In those circumstances, clearly, a solicitor who refused access to a privileged confidential file on the basis that it could not possibly be reasonably necessary for a cost benefit analysis of the State's personal injuries system could claim in any event on a reasonable construction that it would not be reasonable to breach privilege for that purpose. On all those grounds the notion that the constitutional right could be infringed by a statute in these circumstances is misguided.
The other problem I have in accepting the amendment would be that it would be too particular. Earlier Deputy Jim O'Keeffe referred to “expressio unius est exclusio alterius”. Based on that maxim, to say that it does not apply to the disclosure by a solicitor of records, which would fall into either of those categories, would tend to imply that it would apply to virtually everybody else. It would apply to plaintiffs who had documents in their possession, doctors’ medical records of their patients and insurance companies that might have copies of these files in filing cabinets, which is not what this is about.
I again refer to the original section in the Personal Injuries Assessment Board Act, in which the PIAB is given powers to conduct these cost benefit analyses. The purpose of this section is to require people to assist it in carrying out those investigations by producing records in their possession. For instance, it would apply to the Master of the High Court, who, as an officeholder, is not in a position to refuse to show documents in his possession to the PIAB on the basis that it is not entitled to know what happens in his court. It is no application for documents which are secret any more than the Master of the High Court could direct somebody to hand up a privileged opinion. The same applies to the PIAB. It cannot request solicitors to hand over privileged documentation. On any rule or cannon of construction of a statute, it could not be interpreted as authorising the PIAB to breach lawyer-client confidentiality because that is constitutionally guaranteed.
In the circumstances the Deputies might ask why I would not accept the amendment if this is the case. If I were to accept it, it would imply that it was necessary to accept it and that this kind of document or person must be protected from this measure. If I accept that, I am stuck with the problem that it does not even refer to barristers, insurance companies, claims managers, loss adjusters, doctors, psychiatrists and many others who could not reasonably be required by the PIAB to hand over personal confidential material to it in these circumstances.
There may be a problem in introducing a reference in a Bill to another Act, on which most of us are not focused. This section is solely concerned with cost benefit analyses of our system of law. It has nothing to do with arguing about whether an individual case was rightly or wrongly decided or whether the plaintiff got €3,000 or €4,000 in any individual case. It is to do with the broader question of information flows, which should be made available to the PIAB so that it can carry out cost benefit analyses of the present system of personal injuries compensation law.
Having thought about it overnight, I believe it would be retrograde to accept the amendment as it would imply that, but for the amendment, this power could have had the effect of allowing the PIAB to attempt to breach lawyer-client privilege, which is not the case. This section could not be construed in that way because to allow it to be construed in that way or to admit that otherwise it could be construed in that way would suggest that it could be construed in a manner which is unconstitutional, and I cannot accept that.
The Minister has taken a rather odd approach in that he accepts our concerns on behalf of the legal profession that any such direction to or requirement on a solicitor would probably be unconstitutional and in breach of the European convention. The problem is that the Law Society is exercised and concerned about this matter.
The Deputy's profession is not very keen on the PIAB.
I thought it was the barristers who were more concerned about the PIAB. People must go to their solicitors anyhow but they may not have to avail of the expensive services of some barristers.
The PIAB has more than one fan club.
The Minister is correct, we are really dealing with another Act altogether. Having this type of debate in the context of another Act is difficult for a start. What the PIAB would do under section 54(1)(c) would be a cost benefit analysis of legal procedures and surely there would be no better place to start than in solicitors’ offices looking for files to see how effective the system is. The intent may be right, the approach may be not in any way to invade the privacy of individual clients but, in effect, that would be the consequence.
The second point of the Minister, of including one and excluding another is possibly a stronger argument. If we had time for more considered debate on the issue, I would like to see that section amended in a way that would exclude any documents or records held on a confidential basis by anybody. That obviously would include people, such as doctors and so on.
I am concerned about the issue. For the Minister to merely say that there is an implication that it would be unconstitutional and in breach of the European Convention to require documentation from solicitors is not a very strong answer to the case made.
If there is a chance that the privilege aspect will be breached under this section, we should accept the amendment. If a solicitor or a body refuses to comply with this requirement, what is the penalty? None, as far as I can see, is mentioned in the legislation, which makes the requirement seem strange. A question has been raised. I know we can all say certain matters will be subject to a constitutional challenge, but in this case professional confidentiality is a long-standing tradition and has been upheld by the European Court of Human Rights to be part of the rights of privacy. Client confidentiality has been part of common law for the past 150 years and we should ensure that remains the case. A major crisis or events as mentioned by Deputy O'Keeffe might persuade a solicitor to break that confidentiality, but if client-solicitor confidentiality was breached it would bring a solicitor's professional standing into question. Will the Minister respond to the question of penalties, if there are penalties?
It is a strange power the Minister is giving to the PIAB that documents, records and information must be disclosed even though it is within the ambit of section 54 (1)(c). The purpose of a cost benefit analysis is one matter but the substance of the information, documents and records is another matter. While they may provide information in regard to a cost benefit analysis, they might also provide information on other confidential matters. One will not necessarily get unadulterated cost benefit documentation that has no relation to the lawyer-client relationship. I do not know of any other situation where a private firm can be compelled to give details of its business operations.
The ESRI and NESC operates on material that is voluntarily provided by the business sector on their audits and end of term published documents on their business. This provision seems to be a trawl of each individual firm or individuals as the case may be to provide documents. What will happen to the documents? How will they know what documents will be provided? As Deputy Ó Snodaigh asked, what penalties will apply, will there be officers similar to glimmer men checking to see whether the exact document was supplied? Rather than delving into the internal documents of professional people, in this case lawyers and clients, would it not be better to establish a mechanism for an end of year statement that would be part of a code of conduct rather than a statutory requirement?
I think the Minister will run into difficult issues on confidentiality and privacy because one cannot separate documents in a clear-cut black and white fashion. It may be simpler to accept what is being proposed by Deputies Ó Snodaigh and Jim O'Keeffe, if disclosure will be unconstitutional if the documents are in breach of privilege. That is what is stated in the amendment and it would be a clear statement of intent.
May I suggest an alternative proposal?
The Deputy has spoken twice.
I know, but it is an alternative proposal, on the point of including one group with privilege. Under subsection (2) a person of whom a requirement is made under subsection (1) shall comply with that requirement. Would it be possible to add to the end of subsection (2) "unless to do so would breach professional privilege"? That would cover all professions and would make it explicit and clear that it is not envisaged that professional privilege would be breached by anybody. Will the Minister have a word with his officials on whether that would be a resolution to the problem would solve the problem for the Law Society and for everybody else as well?
I reiterate that it cannot be interpreted so as to breach professional privilege. That cannot be interpreted that way because it is a constitutional right. If one interprets it as saying that the PIAB can invade the constitutional rights of people, the Deputy is missing the point. The PIAB will be entitled to get records relating to taxation of costs.
As Deputy Jim O'Keeffe knows well, a Bill of taxation does not contain legal professional privilege matters. It might be something which, in the ordinary course of events, a solicitor would be obliged by professional rules to keep confidential. However, I want to make it clear that it is not necessary to provide in respect of the exercise of any statutory power that it cannot be done in an unconstitutional manner. There is a fundamental rule of construction that no statute of this House may be interpreted in a way which apparently authorises an unconstitutional act. The provisions of every Bill passed, when they become law, must be construed in a manner that is compatible with the Constitution. I am quite happy that it is not necessary to provide this measure and it would tend to suggest, if such a provision were not made, that the Personal Injuries Assessment Board could behave in an unconstitutional manner. I am unhappy with that whole vista.
I move amendment No. 31:
In page 22, between lines 9 and 10, to insert the following:
"32.—(1) For the avoidance of doubt, the reference in the definition of ‘proceedings' in section 4(1) of the Act of 2003 to ‘proceedings in court' includes, and shall be deemed to have always included, a reference to—
(a) proceedings by way of a counterclaim, and
(b) proceedings by way of the service of a third party notice (other than a third party notice claiming only an indemnity or a contribution).
(2) Section 30(4) of the Act of 2003 is amended by the insertion after ‘subsection (3)' of ‘or is one relating to a proposed action for damages under section 48 of the Act of 1961'.".
Amendment No. 31 proposes to insert other amendments to the Act of 2003, the PIAB Act and they are quite technical. They extend the reference to "proceedings" to include, and deem them always to have included, a reference to proceedings by way of counterclaim and "proceedings by way of service of a third party notice (other than a third party notice claiming only an indemnity or a contribution)".
The second change is that Section 30(4) of the Act of 2003 is amended by the insertion after "subsection (3)" of "or is one relating to a proposed action for damages under section 48 of the Act of 1961".
Amendments Nos. 32 and 33 are related and will be taken together. Is that agreed? Agreed.
I move amendment No. 32:
In page 25, line 21, to delete "39.—(1) For" and substitute the following:
"39.—(1) In this section ‘court' includes the Master of the High Court.
(2) For".
These are technical matters. In amendment No. 32 the term "court" is extended to cover the Master of the High Court. Amendment No. 33 is to include section 7 of the Maintenance Act 1994 between lines 32 and 33 on page 25.
I move amendment No. 33:
In page 25, between lines 32 and 33, to insert the following:
"(g) section 7 of the Maintenance Act 1994;”.
Amendments Nos. 34 to 37, inclusive, and 39, 43, 46 and 49 are related and will be taken together. Is that agreed? Agreed.
I will adopt an unusual procedure in that amendment No. 34 is the first in a block of amendments dealing with the issue arising from in camera hearings and how they should be dealt with. Members have had much public representation on this and there has been much controversy. The Minister indicated that he had accepted there was need for change. Perhaps the Minister could outline his thinking from the point of view of his amendments. We might be able to come to a resolution on the issue quickly.
I move amendment No. 34:
In page 26, between lines 2 and 3, to insert the following:
"(a) the disclosure or publication of data or results of research conducted relating to proceedings, or”.
I am grateful to the Leas-Cheann Comhairle because recommittal to Committee Stage makes it easier to range across the series of amendments tabled. Amendment No. 34 in the name of Deputy Jim O'Keeffe is not really necessary as regards the in camera rule because there is nothing in that which affects the publication of aggregate data. For example the Courts Service publishes the numbers of various orders sought, the numbers granted and the like in family law matters which are in camera. The in camera rule is not seen to prevent aggregate data of that nature from being published, as matters stand.
Another feature of the Deputy's amendment is that if it was to be inserted as a new sub-paragraph (a) in subsection (2), the proviso would not quite make sense because it would refer to “the disclosure or publication of data or results of research conducted relating to proceedings” and then one would say, “provided that the report or judgment does not contain any information which would enable the parties to the proceedings, or any child to which the proceedings relate, to be identified”. There would be a technical problem, even if it was necessary to have an authorisation for aggregate research data of that kind to be put in place.
Regarding the amendments in my name, it is unclear from the section as it stands who may attend and report these proceedings. Amendment No. 35 in my name provides that it is to be either a barrister or a solicitor, and I am not trying to create a monopoly for lawyers, "or a person falling within any other class of persons specified in regulations made by the Minister". What I have in mind is that having consulted with the Courts Service and interested parties, I would be in a position to identify by class types of people who should be entitled to carry out this function of preparing reports or recording judgments which are appropriate and sustainable. I do not feel this should be confined to practising or even non-practising lawyers. It should be capable of being extended to other categories in the community, but I do not at this stage have an explicit list in my head that I can commit to. Therefore I believe it is better to leave it to be decided by regulations which I would have to table before this House.
Amendment No. 36 provides that rules of court are to be made to regulate the reporting process. It inserts the term, "in accordance with the rules of court". To go back to the point Deputy Costello was making about me arrogating powers to myself, I believe on this occasion that it is appropriate for the Judiciary, which runs courts, to operate in accordance with the rules of court established by rules committees. Anybody who exercises the function of attending at and reporting on family law cases should in that capacity be capable of being made subject to rules of court. It is not satisfactory that people should decide in favour of that function being carried out in a manner that is not capable of being regulated.
Amendment No. 37 provides that a person of the class referred to in paragraph (a), a solicitor or barrister or a person of the class specified in regulations can attend the court for the purpose of reporting. The amendment also gives the court a measure of control over the attendance of the reporter at the proceedings. I do not want to get into too much detail about this, but I can imagine, for instance, very intimate details of a sexual relationship being discussed in the context of a matrimonial case. It might well be that the presiding judge would decide that it was not acceptable in such circumstances for somebody to be present, listening to the proceedings and seriously inhibiting or embarrassing the parties involved. That is just an example. In cases of great privacy, the presiding judge should be given some leeway to ensure that witnesses can give evidence without undue intrusion from others.
The acceptance of amendment No. 39, in the name of Deputy Ó Snodaigh, would make the process of reporting subject to a great deal of bureaucracy, such as ministerial regulations and accreditation by the Courts Service. My approach, which has roughly the same aim, achieves the desired result in a slightly more flexible manner. I am opposed to giving "bona fide academic researchers", as they are called in the amendment, access to court files on the basis that anything published would not contain information that would identify people, as the amendment suggests. It is proposed that the identity of the parties would be known to so-called bona fide researchers but they would not be allowed to publish the details.
Frankly, private information can be a problem. For example, the intimate details of the private life of a well-known celebrity — a politician or somebody else — and his or her spouse may be written down in documentary form. It is no great comfort to somebody in such circumstances to know that researchers can rifle through the relevant documents but cannot publish anything that identifies him or her.
If researchers are writing a biography of the well-known person, they can use the material indirectly to influence the picture the public has of him or her. It is possible that the permitted access to such documents would be abused in that way. I do not favour giving "bona fide academic researchers" access to in camera proceedings per se. Instead, we should aim to put in place a system whereby relevant material can be placed in the public domain, allowing all potential users — researchers, students or departmental officials — access to it on the same basis. I do not think people should have a total right to sit on a case because they have branded themselves “bona fide academic researchers”.
I understand the objective of amendment No. 43. The provision proposed in the amendment will be included in the Bill, in effect, if my amendments are accepted. News reports of family cases which identify parties are not permitted at present. Given that family law judgments in the superior courts often appear in law reports with the identities of the parties concealed, it is clear that nothing prohibits such material from appearing in the news media. No such prohibition should exist.
The approach in this section is to permit certain actions which are currently prohibited. If my amendments are accepted, the attendance in court of a barrister, solicitor or member of such class of persons as prescribed in ministerial regulations will be permitted for the purpose of preparing a report. The attendance of other persons such as journalists will not be permitted unless they are prescribed persons. I do not intend to prescribe persons by category. While I understand the thinking behind amendment No. 43, I am of the view that the approach I am adopting will adequately take care of it.
The proposal in amendment No. 46 to prescribe by regulation persons who can publish reports is adequately taken care of in amendment No. 35. If we follow the line I am suggesting, it is probably unnecessary to prescribe the categories of person who may publish reports. If the category of reporters has been established and the relevant ground rule has been set down, the question of what category of person goes on to publish the material seems to me to be of little importance.
It could be argued that amendment No. 49, in the name of Deputy Ó Snodaigh, proposes a somewhat over-regulatory approach. The Deputy is calling for guidelines to be prescribed "on venues and times for hearings, and the persons permitted to attend". My amendment takes care of the part of the amendment relating to "the persons permitted to attend". I am worried that the suggested approach is too heavy-handed and would involve too much preliminary work. If it is adopted, we will never get around to making information available about what is actually happening in the family courts.
The amendment also calls on the Minister to ensure by regulation that "the provisions under this section operate consistently in all family courts established in the State". I have to say that the Minister could not do that very well. It is not the type of provision we should pursue lightly. We all agree that provisions should be made to allow the use of the material in question in other tribunals. There is no major problem in that regard.
We have to take the Minister on trust to a certain degree because we have not really had a chance to assess fully the effect of his amendments. We all agree on the common objective of ensuring that we cater for the provision of responsible reports for the purpose of building a body of jurisprudence for appropriate purposes. We are trying to ensure that the sensitivities of family law cases are not subject to day-to-day reporting. They should certainly not be the subject of sensationalism or intrusion of any kind.
The amendment I proposed represented an attempt to achieve a delicate balance. I will bow to the Minister's comment that he and his officials are trying to achieve the same objective, by taking on board the various representations made and concerns expressed about this area. I hope the new provisions will achieve the balance we are aiming for. On that basis, I am prepared to withdraw my amendment and to agree to the amendments proposed by the Minister.
I wish to speak on the general thrust of the Minister's amendments which have given us a great deal to think about. He is proposing to expand the Bill's original provisions by focusing on various areas, such as how reportage can take place. I did not know that data can be compiled at present and I do not think many people are aware of it. I understand there have been difficulties with the compilation of data by researchers because it had been done on a pilot basis in the family courts, but that has been stopped to some extent.
I am not sure whether a particular process or code of conduct operates in that regard or whether the courts have been feeling their way in that regard, but we need to be clear on that aspect of it if we are seeking to put in place a corpus of jurisprudence in respect of sensitive court matters, such as family law, domestic violence and rape cases, which have not been reported in any significant way until now. I would like to see a clearer mechanism in respect of the co-operation of the courts in this regard. How will judges respond? How will the Courts Service deal with the matter?
I would have thought a better approach could have been adopted. The Minister is arrogating some areas to himself by way of amendment No. 38 which provides that one of the Minister's functions will be to prohibit a party to proceedings, "from supplying copies of, or extracts from, orders made in the proceedings".
The Minister will proscribe the conditions, therefore. In section 36 the Minister will allow the matter to be dealt with in accordance with the rules of court. Would it not be better for a code of conduct in this area to be developed under the auspices of the Courts Service, which the Minister would then approve? There are many elements in this. We are talking about the research and data side, how the reporting will take place and the people who will do the reporting. Will it be academics on the one hand authorised by the Minister or barristers and solicitors on the other, or perhaps the two will be the same in many areas? We are talking also about those who will attend the court, the way people will be accompanied in court and the extent to which the material that is obtained will be used in terms of who can and cannot be identified.
There is need for a broad code of conduct in this area that is wider than the statutory provision determination. It should be the remit of the Courts Service to provide that code of conduct, which the Minister would then approve. That might be changed from time to time because this has not been done before and it is an extraordinarily sensitive area. Whereas it is easy for us to say that individual persons should not be identified in this legislation, we are talking about a very small country. It is difficult to keep matters private in many cases and details may emerge that will enable identification to take place.
From time to time the principles of a code of conduct might need to be changed or indeed the practicalities of it. I am not saying anything against the Minister's proposal, which is a good one although I see a certain dichotomy in that the Minister is allowing the rules of court to prevail in one instance while arrogating approval to himself in another. It might be better for the Minister to stand back and allow the courts determine the code of procedure and behaviour, which the Minister for Justice, Equality and Law Reform would approve, and that could be changed from time to time as circumstances would require.
We are travelling untilled ground in this respect and we are not sure how these provisions will work in practice. They may work well but they may need to be changed, and that could be more easily done if there was a sufficiently broad provision to allow a mechanism be put in place for doing it.
Having listened to the Minister I understand some of the problems with the amendments I have submitted. As I said earlier, they were prepared in a rush. If I had the time I would have tidied them up somewhat and they would not be so bureaucratic. The reference to bona fide academic research does not necessarily mean that somebody can declare themselves as such.
The material I have listed in amendment No. 40 must be gathered to allow the judgments, so to speak, to be made on how the system is working and ensure we have proper statistics on that area. It is to allow the profession to extrapolate, collate and make sense of statistics, which we need from the courts system. I am not saying barristers or solicitors cannot do that but sometimes it is done by researchers, statisticians and so on. Perhaps that is covered by the Minister's inclusion of "any other class of persons".
The person who should be mainly responsible for the collating and processing of all this material should be an officer of the court, somebody from the Courts Service. I am not saying a barrister at law or solicitor cannot do it but it should be somebody who is accountable to the Minister or, at the very least, to the Courts Service in light of what other speakers and the Minister raised in regard to personal details being used or abused in different circumstances.
On the second reading of my amendment No. 49 I admit it is slightly convoluted, so to speak, but the intention was that family courts should sit in courts, not in hotels, backrooms or whatever, and that the same type of facilities should be available in all of them. This is in line with my other amendment but the main point is that the same facilities should be available in every family court. The courts should sit at a time which is conducive to their working properly and we do not have criminal courts sitting for two hours in the morning and then the family courts sitting in the afternoon. A different time should be allocated to family courts. That was the intention behind my amendment.
I welcome the fact that the Minister has accepted in amendment No. 39 that parties to proceedings can make use of the reports, or extracts, for other proceedings only. I welcome the approach of the Minister. For once he is sticking to the programme for Government which stated that changes would be made to the in camera rule. That is to be welcomed. Time does not allow us to debate that aspect fully but in general I take the Minister at his word on this one.
I have sympathy for the approach Deputy Costello suggested, namely, that I should ask the Courts Service to devise guidelines, consent to them and then they would be effective. My problem is that some of the people who are complaining about the in camera rule — I do not want to exaggerate their position — appear to think the Courts Service is against them and that if I simply surrendered to the Courts Service all these functions and they did not like the result they would say, “Isn’t that typical? We complain about the Courts Service and the Minister asks the Courts Service to address the problem but it does nothing”. They then see it as an Establishment conspiracy against which they rage and say we are not doing the right thing.
They might say that is going out of the frying pan into the fire.
Exactly.
Trust the Minister.
The Minister is the fire.
There is a problem in maintaining the confidence of all the people who are subject to family law. Like many litigants in family law I would love to know the track record of individual judges — is this a judge who always holds for the father or never holds for the father? There is a lot of information that one would, in theory, like to know. Would it be fair, for instance, to say of a particular judge that in 83% of domestic violence cases he had held for the mother? Is that the kind of information we really want to know? At one level many people would say they want it clearly known that a certain judge is pro-wife or whatever. The problem with that kind of evaluation system is that it would give rise to the worst kind of pressures on judges. It would be like school league tables and would give rise to all manner of unintended consequences. Transparency gives rise to considerable pressure on people to conform to public expectations. Do we need to know if a judge, softer than others on a particular aspect of family law, gives out larger shares of a spouse's property to the other in divorce proceedings? Do we want comparative tables in our newspapers stating that judge X is soft while judge Y is as hard as nails? I do not know if that it is a positive development. I need to be convinced that this type of research is positive rather than negative.
This is a first step that may well be revisited by the House. However, we live in a world where, to quote the Minister for Finance, Deputy McCreevy, the goddess OTA — openness, transparency and accountability — is worshipped in many quarters. By the same token, the consumers of family law services, as provided by the Judiciary as part of the administration of justice, must have a sense of confidence that openness, transparency and accountability will not destroy their lives. While a delicate balance must be achieved, I will concede we are groping in the dark.
The changes made during the passage of the Bill may not be perfect and may create problems in future. However, I do not want an unintended consequence where people lose faith in their capacity to go to court. For example, husbands and wives with matrimonial problems must not feel they cannot go to court because the issue will end up in the public domain. That would be the worst of the outcomes. Bad and all as matrimonial breakdown is, believing that one could not invoke the courts to help out would be ten times worse. I prefer to guarantee the House that this legislation will be revisited in two years' time. There are always courts Bills going through the Oireachtas, such as those to increase the number of judges. If this needs to be fine-tuned in the light of experience, there will be opportunities to do so.
I move amendment No. 35:
In page 26, line 3, after "preparation" to insert the following:
"by a barrister at law or a solicitor or a person falling within any other class of persons specified in regulations made by the Minister".
I move amendment No. 36:
In page 26, line 7, to delete "provided that the report or judgment" and substitute "in accordance with rules of court, provided that the report or decision".
I move amendment No. 37:
In page 26, line 9, after "identified" to insert the following:
"and, accordingly, unless in the special circumstances of the matter the court, for reasons which shall be specified in the direction, otherwise directs, a person referred to in paragraph (a) may, for the purposes of preparing such a report, attend the proceedings subject to any directions the court may give in that behalf”.
Before the guillotine, I wish to make an oral amendment to amendment No. 47 which should now read:
In page 27, between lines 2 and 3, to insert the following:
"(7) This section shall apply to proceedings brought, and decisions of a court made, whether before or after the commencement of this section.".
This new arrangement for the in camera rule shall apply to proceedings which have already begun and not just for proceedings commenced after the Act. Subsection (2) deals with judgments in the past and subsection (4) deals with the giving of information to certain other bodies. It is important that it is made clear for proceedings that commenced before the commencement of the Act.
Does that mean ones that commenced beforehand or cases where orders were made beforehand?
This section shall apply to proceedings brought and decisions of a court made whether before or after the passing of this Act.
This will not exclude subsections (2) and (4).
I am not excluding subsections (2) and (4).
It will be more sensible to adopt that approach.
It could lead to an injustice.
It could have unfortunate consequences.
That would allow orders made prior to this Bill's enactment to be disclosed to third parties.
It is better to provide that somebody now, whose case was decided two years ago, should be able to produce an in camera judgment to obtain, say, a mortgage in the future.
That is necessary as it is causing problems in the conveyancing area.
This is a substantial amendment.
Is the oral amendment agreed? Agreed.
As it is now 10.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
As the Bill is considered by virtue of Article 20.2.2° of the Constitution to be a Bill initiated in the Dáil, it will be sent to the Seanad.