Civil Law (Miscellaneous Provisions) Bill 2011: Report and Final Stages

Amendments Nos. 1 and 2 have been ruled out of order.

Amendments Nos. 1 and 2 not moved.

Amendments Nos. 3 and 9 to 11, inclusive, are consequential and may be discussed together.

I move amendment No. 3:

In page 8, line 1, to delete "sections 26 to 28” and substitute the following:

"section 21 insofar as it refers to section 21 of the Equal Status Act 2000 and sections 26 to 28”.

Amendments Nos. 3, 9 and 10 are simply technical amendments to improve the text. Amendment No. 11 adds another subsection to section 21 of the Bill to amend section 75 of the Employment Equality Act of 1998. Its purpose is to remedy an omission in the Act of 1998 to protect the independent functions of the officer delegated to hear and issue a decision in a discrimination case.

Section 75(7) of the Act of 1998 refers to the arrangements under which delegation to an equality officer by the director of the function of hearing a case will operate. However, this provision currently refers only to cases referenced under section 77 of the Act in relation to employment matters. It does not make reference to cases referred under section 21 Act of 2000 concerning discrimination in the supply of and access to goods and services or under section 86 of the Act of 1998 concerning collective bargaining. It is proposed to correct these omissions by the amendments now proposed. It is an important tidying-up measure in the context of the relevant legislation and I hope it will be supported by the House.

Amendment agreed to.

I move amendment No. 4:

In page 8, line 7, to delete "1996 to 2002" and substitute "1996 and 2002".

This is a technical amendment to correct the reference to the Equality Acts in order that the right reference is made.

Amendment agreed to.

Amendment No. 5 is consequential on amendments Nos. 19 to 25, inclusive. Therefore, amendments Nos. 5 and 19 to 25, inclusive, may be discussed together.

I move amendment No. 5:

In page 8, to delete lines 12 and 13 and substitute the following:

"(10)Sections 6, 12 and 29(g) and sections 48 to 54 shall come into operation on such day or”.

Amendment No. 5 is designed to ensure, as the text of the Bill is now being finalised, that the commencement provision is correct in regard to those sections of the Bill that will require a commencement order.

Amendments Nos. 19 to 25, inclusive, relate to the transfer of the family mediation service to the Legal Aid Board, something that was mentioned at an earlier Stage of the Bill but the amendments to provide for which we did not have an opportunity previously to table. The promotion of mediation in the legal system is a commitment in the programme for Government. On Second Stage I said that, if possible, I would try to include in the Bill provisions for the transfer of the family mediation service to the Legal Aid Board. With the considerable assistance of the Attorney General's office, the Parliamentary Counsel, the Legal Aid Board and my own officials, it is now possible to make legislative provision for this transfer.

I want to outline briefly the background involved to this proposal. The family mediation service, as Deputies know, assists people who have decided to separate or divorce and wish to avoid going through an adversarial process to negotiate their own agreement with the help of a mediator. Couples are encouraged to consult lawyers as they progress through the mediation process to ensure the final agreement is sustainable.

The service is offered to married, unmarried and same-sex couples and individuals whomay have a child as a result of a very brief relationship. Family mediation can also helpfamily members to resolve disputes such as sibling care of elderly parents, inheritance and child access and custody in cases of deceased parents. The process is voluntary and each individual has to confirm his or her willingness to attend mediation meetings. Mediation leads to better outcomes for families and children and the process is less adversarial and expensive than the courts.

In so far as I have any expertise in this area, I should declare an interest in that part of my professional training was in mediation to assist in the resolution of commercial and family disputes so that people do not have to go through the court system. For many years I have been an enthusiast for mediation. I had no involvement in the State mediation service but as a family solicitor I referred a number of individuals to it in the hope that they could resolve their difficulties, particularly in cases of broken marriages, without resorting to the courts.

The Family Mediation Service is staffed by professionally trained and accredited family mediators. It was established in 1986 as a three year pilot project under the Department of Justice. As a backbencher in this House during the 1980s I recall advocating for a mediation service. It is the first publicly funded mediation scheme in Europe. In 1993, the service was transferred to the newly formed Department of Equality and Law Reform and it moved again in 1998 to the reconstituted Department of Social, Community and Family Affairs. The Family Support Agency Act 2001 came into operation in 2003 to establish the Family Support Agency as a statutory agency. The Family Mediation Service came under the umbrella of that agency as one of its functions in terms of providing a direct service to the public.

The agency is now under the aegis of the Department of Children and Youth Affairs and, in turn, the Government has decided that the service should come under the aegis of the Department of Justice and Equality. It is appropriate that it is now being taken under the wing of the Legal Aid Board, having regard to the fact that the overwhelming majority of work done by the board and its law centres pertains to family law, the need to ensure cohesion and integration of services and providing a direct link between legal aid and the alternative of engaging in mediation. We can benefit from synergies between these two services by having the Family Mediation Service under the aegis of the Legal Aid Board. Furthermore, it is ceasing to travel every time Departments are rearranged, which is not helpful in terms of developing a coherent service in the public interest.

In May 2011, I launched the Dolphin House family mediation initiative, which is a joint initiative by the Legal Aid Board, the Family Mediation Service and the Courts Service. Dolphin House houses the District Court in Dublin which deals with a substantial number of family proceedings, including child custody, guardianship, access, maintenance applications and barring and safety orders. This pilot initiative provides mediation and legal aid services within the same location, with a view to encouraging more people to avail of mediation at less cost and stress when seeking to resolve disputes relating to custody and access. Initial indications on uptake are encouraging and it is expected that it will prove to be a blueprint for such services in the future. In recent years the Legal Aid Board has taken an active role in encouraging and facilitating greater use of mediation by its own solicitors and other options to help resolve marriage disputes in general. Its chairperson, Ms Anne Colley, also acts as chair of a steering group on the Dolphin House initiative.

I pay tribute to Ms Colley for the role she played as chairperson of the Legal Aid Board. She is approaching the end of her term and because of the statutory provision she is not eligible for reappointment. She performed an important and valuable function in her role as chair of the Legal Aid Board and Members on all sides of the House should recognise that she has shown an extraordinary commitment to her role.

In course of developing the Dolphin House initiative, it has become apparent that the Family Mediation Service could operate more efficiently and effectively if it is integrated with the Legal Aid Board. The Legal Aid Board would also benefit from the exercise because it would be in a position to steer the mediation service in a way that would increase the numbers using it, reduce demand for legal aid and court time, better establish the status of legal agreements and provide economies in the use of premises through collocation with law centres or courts, where possible.

The legislative proposals I am now moving will provide for the following: the transfer of responsibility for administration of the Family Mediation Service to the Legal Aid Board; the necessary amendments of the Family Support Agency Act 2001 and the Civil Legal Aid Act 1995; and the transfer of staff and property of the Family Mediation Service to the Legal Aid Board. The House will agree that it makes good sense to reorganise the Family Mediation Service in the way that I propose.

My overall strategy on mediation will at a later stage involve publication of a comprehensive mediation and conciliation Bill to provide a framework for the better operation of alternative dispute resolution mechanisms in our legal system. Much more use could be made of alternative dispute resolution and mediation than is currently the case not only in the area of family law but across a range of issues that result in civil litigation. I am pleased to note that the Commercial Court has made a considerable contribution to encouraging contesting parties and the lawyers representing them to use mediation on occasions where lengthy litigation and substantially costs would otherwise ensue. Proposals for a mediation and conciliation Bill are at an advanced stage of preparation by my Department and I look forward to bringing it before the House when it is has been completed and approved by the Attorney General.

I welcome the proposed measures. Will there be any resource implications for the Family Mediation Service as a result of its transfer to the Legal Aid Board?

I do not know Ms Anne Colley but the work of the Legal Aid Board under her stewardship has been exemplary, particularly at a time when demands for its services have increased due the economic pressures people are under. The Minister faces an important task in replacing her because it will be difficult to find someone with the calibre and commitment she has shown in her role. I wish her well.

I welcome the amendments, which make sense from a structural point of view in terms of streamlining the service. Further to Deputy Calleary's question on resources, I ask the Minister to outline the implications of the move for the Department.

The resources that were made available last December to the Legal Aid Board and the Family Mediation Service will take them to the end of this year. The question of what funding will be made available next year has to be considered by the Government in the context of the ongoing expenditure review but the changes we propose will ensure a more efficient use of resources. Important synergies will be achieved by making available to the Family Mediation Service premises in certain parts of the country which are already occupied by law centres. At present the operation of the service is somewhat constrained. I do not know and cannot tell the House what financial envelope of funds may be made available to me for both services. I regard both as very important and we dealt recently on Question Time with the Legal Aid Board. The difficulty this year is that based on last year's Estimates, the board is underfunded and because of the recession and so many families being in straitened financial circumstances, there has been a substantial increase in the numbers seeking assistance through centres.

I hope that in the context of resources, greater connectivity between the Legal Aid Board and the mediation service will result in many more estranged couples or parents using the service, especially dealing initially with custody and access disputes, many of which could be readily resolved in mediation but unnecessarily end up with hearings in the District Court. That may produce a resource saving as it may be the case that moneys otherwise spent on legal resources would not be required for particular individuals, freeing up the service for others for whom mediation is not a practical possibility.

I hope that we will see, under the encouragement of the Legal Aid Board and the service administered under it, far more people using the mediation service. Connectivity is important. The Dolphin House pilot scheme is very important, and one of the successes in mediation in other jurisdictions has been when mediation services have been established in the same building as court structures. On occasions individuals will, without lawyer advice, issue summons on custody or access issues and not go to mediation. When there is a mediation service in the building and where court clerks indicate the availability of such a service, a significant number of people may first try to use that type of service. That has been the experience elsewhere.

I see the areas of expansion and greater utilisation of mediation coming from a linking of this service with the administrative structures of the Legal Aid Board. It could consider some form of internal protocol to encourage the use of mediation. There would also be a linkage between the board, the mediation service and the Courts Service. I hope we will have funding in future for the extension of the pilot scheme currently operating in Dolphin House to other courts where a substantial number of family cases are dealt with each year.

Amendment agreed to.
Amendments Nos. 6 to 8, inclusive, not moved.

I move amendment No. 9:

In page 21, line 19, to delete "and".

Amendment agreed to.

I move amendment No. 10:

In page 21, to delete line 22 and substitute "a function under subsection (4)", and".

Amendment agreed to.

I move amendment No. 11:

In page 21, between lines 22 and 23, to insert the following:

"(c) in subsection (7), by the substitution of “under section 77 or 86, or under section 21 of the Equal Status Act 2000—” for “under section 77—”.”.

Amendment agreed to.

Amendments Nos. 12 and 13 are consequential on amendment No. 14 and amendment No. 15 is related to amendment No. 14. Amendments Nos. 12 to 15, inclusive, will be discussed together.

I move amendment No. 12:

In page 22, line 26, to delete "and".

In accordance with Standing Order 140, I request the Chair to instruct the Clerk to make a correction in the Bill as amended in the select committee. The correction is as follows: on page 7, lines 33 and 34, the cross-reference to "section 18 to section 25" should be updated to read "sections 18 to 26", to take account of the new section being inserted by amendment No. 15. I am required to bring this technical change to the attention of the House.

Amendments Nos. 12 and 13 are technical and improve the text. Amendment No. 14 adds another subsection to section 24 whose purpose is to clarify an ambiguity that arose in the amendment by the Equality Act 2004 of the text of section 79(6) of the Employment Equality Act 1998. So as to allow the Equality Tribunal to deal with certain procedural and factual issues, a new subsection (3A) was inserted in section 79 of the 1998 Act by the Equality Act 2004. The tribunal already had this power with regard to one specific instance under section 79(3) relating to the question of whether different rates of pay are lawful under section 19(5) and section 29(5). These sections provide that an employer is not prevented from paying different rates of pay to different employees on grounds other than discriminatory grounds.

A consequential amendment made by the Equality Act 2004 to section 79(6) does not make clear that subsection (6)(b) was also to be amended to refer to the new subsection (3A). This ambiguity is addressed by the proposed amendment, although I appreciate my explanation for it is somewhat complex. It is merely to tidy up an anomaly arising under legislation.

Amendment No. 15 corrects an omission in the Equality Act 2004. So as to allow the Equality Tribunal to deal with certain procedural and factual issues as preliminary matters, a new subsection (3A) was inserted in section 79 of the 1998 Act by the Equality Act 2004. The tribunal already had this power with regard to one specific instance under section 79(3) relating to the question of whether different rates of pay are lawful under section 19(5) and section 29(5). These sections provide that an employer is not prevented from paying different rates of pay to different employees on grounds other than discriminatory grounds. Section 83(5) of the 1998 Act, which provides for an appeal to the Labour Court against a decision of the director under section 79(3) and for referral of cases back to the director on resolution of preliminary issues, was not amended by the 2004 Act to include a corresponding reference to section 79(3A). The amendment is proposed to remedy this anomaly. As is clear to Deputies, there is a direct link between amendments Nos. 14 and 15, which are essentially to address the same difficulty that arose, depending on to whom the application was made to address an issue. These are technical amendments which I hope the House will support.

Amendment agreed to.

I move amendment No. 13:

In page 22, line 35, to delete "the reference."." and substitute "the reference.", and".

Amendment agreed to.

I move amendment No. 14:

In page 22, between lines 35 and 36, to insert the following:

"(d) in subsection (6)(b), by the substitution of “subsection (3) or (3A)” for “subsection (3)”.

Amendment agreed to.

I move amendment No. 15:

In page 23, between lines 10 and 11, to insert the following:

26.—Section 83 of the Act of 1998 is amended, in subsection (5), by the substitution of "under section 79(3) or (3A)" for "under section 79(3)".

Amendment agreed to.

I move amendment No. 16:

In page 35, to delete lines 22 to 45, to delete page 36 and in page 37, to delete lines 1 to 36 and substitute the following:

32.—The Irish Nationality and Citizenship Act 1956 is amended—

(a) in section 2, by the insertion of the following definition:

"‘civil partner' means a civil partner within the meaning of section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;",

(b) in section 15 (amended by section 8 of the Irish Nationality and Citizenship Act 2004)—

(i) by the substitution of the following for subsection (1)(e):

"(e) has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows—

(i) made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and

(ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.",

and

(ii) by the insertion of the following after subsection (3) (inserted by section 8 of the Irish Nationality and Citizenship Act 2004):

"(4) In this section and section 15A, ‘citizenship ceremony' means a ceremony, held before a judge, or a retired judge, of the District Court, Circuit Court, High Court or Supreme Court, or such other person as may be designated for that purpose by the Minister, at a place and in a form approved by the Minister, at which the applicant has made the declaration and undertaking referred to in subsection (1)(e) or section 15A(1)(h)”,

(c) by the substitution of the following section for section 15A (amended by section 9 of the Irish Nationality and Citizenship Act 2004):

"15A.—(1) Notwithstanding the provisions of section 15, the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse or civil partner of an Irish citizen if satisfied that the applicant—

(a) is of full age,

(b) is of good character,

(c) and that citizen—

(i) are married to each other, have been married to each other for a period of not less than 3 years, and are living together, as attested to by affidavit submitted by the citizen to the Minister in the prescribed form, or

(ii) are civil partners of each other, have been civil partners of each other for a period of not less than 3 years, and are living together, as attested to by affidavit submitted by the citizen to the Minister in the prescribed form,

(d) is, in the case of a spouse, in a marriage recognised under the laws of the State as subsisting,

(e) had, immediately before the date of the application, a period of one year’s continuous residence in the island of Ireland,

(f) had, during the 4 years immediately preceding that period, a total residence in the island of Ireland amounting to 2 years,

(g) intends in good faith to continue to reside in the island of Ireland after naturalisation, and

(h) has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows—

(i) made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and

(ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.

(2) The Minister may, in his or her absolute discretion, waive the conditions at paragraph (c), (e), (f) or (g) of subsection (1) or any of them if satisfied that the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship.

(3) Paragraph (g) of subsection (1) shall not apply to an applicant for a certificate of naturalisation to whom subsection (4) applies.

(4) Any period of residence outside the Island of Ireland, during which—

(a) the applicant for a certificate of naturalisation to which this section applies was—

(i) married to and living with his or her spouse, or

(ii) in a civil partnership with and living with his or her civil partner,

and

(b) the applicant’s spouse or, as the case may be, civil partner was in the public service,

shall be reckoned as a period of residence in the island of Ireland for the purposes of calculating—

(i) continuous residence under paragraph (e) of subsection (1), or

(ii) total residence under paragraph (f) of that subsection.",

(d) in section 16 (amended by section 10 of the Irish Nationality and Citizenship Act 2004)—

(i) by the insertion in subsection (2)(a) of “, or is the civil partner of,” after “related by blood, affinity or adoption to”, and

(ii) by the insertion in subsection (2)(b) of “, or was the civil partner of,” after “related by blood, affinity or adoption to”,

(e) by the substitution of the following section for section 17 (amended by section 12 of the Irish Nationality and Citizenship Act 2004):

"17.—An application for a certificate of naturalisation shall be—

(a) in the prescribed form, and

(b) accompanied by—

(i) such fee (if any) as may be prescribed, and

(ii) such evidence (including statutory declarations) to vouch the application as the Minister may require.",

(f) in section 19(1)(e), by the substitution for “act other than marriage” of “act, other than marriage or entry into a civil partnership,”,

(g) by the substitution of the following section for section 20:

20.—Acquisition of Irish citizenship by a person shall not of itself confer Irish citizenship on his or her spouse or civil partner.",

(h) by the substitution of the following section for section 22:

22.—(1) The death of an Irish citizen shall not affect the citizenship of his or her surviving spouse, civil partner or children.

(2) Loss of Irish citizenship by a person shall not of itself affect the citizenship of his or her spouse, civil partner or children.",

and

(i) by the substitution of the following section for section 23 (amended by section 8 of the Irish Nationality and Citizenship Act 2001):

23.—A person who marries, or enters into a civil partnership with, a non-national shall not, merely by virtue of the marriage or civil partnership, cease to be an Irish citizen, whether or not he or she acquires the nationality of the non-national.".".

This deals with the issue of citizenship, which we have discussed at some length during the course of this Bill's passage through the Houses. The purpose of the amendment is to make the necessary amendments to the Irish Nationality and Citizenship Acts to give effect to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Deputies will recall that I stated my intention to bring forward, as far as possible in the Bill, amendments to achieve that end. During the various Stages we have agreed certain changes to a number of sections in the relevant citizenship Acts, and much of the text of section 32 was agreed during Committee Stage debates.

For example, we provided statutory backing for citizenship ceremonies and improved recognition of the position of civil partners, thus making it easier for them to acquire citizenship. My amendment proposes the replacement of section 32 in its entirety so as to provide clarity on the legal position without having to visit a series of different enactments. I should explain that this is essentially a technical drafting device recommended by the Parliamentary Counsel to assist Deputies in better understanding what is being proposed, both in its entirety and in additional new elements It will also assist the public and those who may give advice to individuals.

I propose to highlight those new elements regarding civil partners and citizenship ceremonies now being included on Report Stage, some of which were mentioned by me during the course of Second or Committee Stages. Paragraph (a) inserts a new definition of “civil partner” in section 2 of the 1956 Act. That is clearly necessary because of the changes we are making. Paragraph (b) provides for an amended description of a “citizenship ceremony” to allow such a ceremony to be held before “such other person as may be designated for that purpose by the Minister”, in addition to a judge or a retired judge. Such a person could be a county registrar, for example. Deputies will recall that when provision was originally made for citizenship ceremonies, it was stated that the swearing of the oath should take place before a judge or retired judge. As an individual of that nature might not be always available in circumstances in which a ceremony should take place, I have decided it is appropriate for the Minister of the day to be able to designate some other appropriate individual to administer the oath. This amendment will allow that to happen.

Further to what I mentioned earlier, I would like to inform the House that a series of citizenship ceremonies will take place in Cathal Brugha Barracks in Rathmines on Thursday and Friday of next week. A large number of people to whom citizenship has been granted will swear oaths and receive citizenship parchments or certificates. We hope to arrange a further citizenship ceremony outside Dublin in August, perhaps in Templemore. I am not sure if a retired or sitting judge will be available in August to administer the oath.

Perhaps such a person will be available if the ceremony takes place in Kerry.

We are anxious to ensure we do not develop a backlog of those to whom citizenship has been granted, as that would cause them to have to wait an undue amount of time before swearing their allegiance to this State and getting their certificates.

Paragraph (d) makes a number of amendments to section 16 of the 1956 Act. It amends the definition of “Irish associations” to include civil partners. Paragraph (f) amends section 19(1)(e) of the 1956 Act to include a reference to civil partnership. Paragraphs (g), (h) and (i) are being included to replace sections 20, 22 and 23 of the 1956 Act, respectively, with appropriate wording referring to civil partners or civil partnership. I hope this amendment will receive the support of the House.

Amendment agreed to.

As amendment No. 18 is consequential on amendment No. 17, amendments Nos. 17 and 18 may be discussed together.

I move amendment No. 17:

In page 39, to delete lines 36 to 44.

On Committee Stage, I raised the question of the number of possible fees that could be charged as a result of the changes we are making. Under the current proposals, one might have to pay a fee on application and, if one's application is successful, another fee on receipt. We have discussed the reasoning behind it. Currently, if somebody is not granted permission, we have no way of getting any funding to recoup some of the resources we spent processing the application. It is important to bring some clarity to the matter. That is why a single fee would be appropriate. It is open to the Minister to determine whether the fee should be imposed on application or on the granting of permission. I ask him to consider accepting these amendments to bring some clarity to the matter. I do not think we should penalise people who are successful by making them pay a second fee.

I appreciate that previously the Deputy raised this issue and we discussed it. Section 19 of the Immigration Act 2004, as currently drafted, only makes provision for a fee to be charged for the giving of a permission under the Act. There is no provision for an application fee to be charged. My proposed replacement for that section remedies that situation by making it possible to charge an application fee, a fee for the giving of the permission, or both. The Deputy's amendment would prevent me from doing this. The effect of his amendment No. 17 would be to delete the proposed new section 19(1)(a), which makes provision for the charging of a fee for an application for a permission, the giving of a permission, or both. Amendment No. 18, which is also in the Deputy’s name, seeks to amend section 19(1)(b) so that it provides for the power to charge a fee either for an application for a permission or the giving of a permission, but not both. It would also have the effect of waiving the registration charge in any case where the person has paid an application fee — not just when the foreign national registers for the first time, but also at renewal stage. It also prescribes that application fees should be paid to the registration officer, as opposed to the Minister, even though the registration officer may have no dealings with the case, for instance in an unsuccessful application. My proposed text would be a standard application fee to be charged in respect of permissions. That fee would be set at a level that would cover the administrative costs associated with receiving and investigating the application. If the application is granted, an additional fee could be payable. If the application is refused, no additional fee would be payable. If I were to be precluded from having this flexibility, as would be the case under the Deputy’s amendment, I would have to set much higher application fees. In this manner, failed applicants would be subsidising the cost of giving permission to successful applicants. Under the circumstances, I am afraid I cannot accept Deputy O’Brien’s amendments.

We are looking at two separate fees, one on application and one on permission. Is that what is proposed? In my amendments, I am proposing that there should be a single fee. There is no reason the fee cannot be the same in both circumstances, regardless of whether it is paid at the start, or over two stages. I do not understand from where the Minister is coming. Nothing in my amendments would prevent the Minister from charging a fee on application that would cover the entire process, including the registration of the certificate. Perhaps the Minister can clarify that.

As I explained previously, the difficulty arises in the cases of people who are unsuccessful in their applications. There is a benefit to one when one's application is successful. As matters stand, successful applicants essentially meet the expenses incurred by the State in determining the applications of unsuccessful applicants. It would be unfair to charge an unsuccessful applicant the full sum that would arise if the application were successful. That sum is partially based on a recognition of the benefits that accrue to an individual from a successful application. It would be unfair to maintain the current position whereby successful applicants meet the expense incurred in the processing of applications that are unsuccessful, some of which should not have been made in the first place. We want to create a degree of flexibility in this respect. That is why we are providing for the possibility of charging a relatively modest sum to applicants and levying a further charge on those who are successful. That is the intent and purpose of this section of the Bill. If we were to provide that the entire sum should be paid on application, it may act as a barrier to some individuals whose applications are inevitably going to be unsuccessful from making an application in the first instance. However, it could be unfair to some people who have no certainty as to the outcome of their applications. If unsuccessful, they would end up incurring the same level of expense as a person whose application succeeded. It is for that reason — not to be stubborn or unnecessarily difficult — that I cannot accept the Deputy's amendment.

I thank the Minister. I have made my point. I do not want to hold up the proceedings by calling an electronic vote on these amendments. However, I will ask for a voice vote on them. I am eager to get to the section of the Bill dealing with the Official Languages Act. There will be much more debate on that.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 18:

In page 39, line 48, after "the" to insert the following:

"making of an application for, or the giving of, a permission and the".

Amendment put and declared lost.

I move amendment No. 19:

In page 46, after line 47, to insert the following:

"PART 16 FAMILY MEDIATION SERVICES

48.—In this Part—

"Agency" means the Family Support Agency;

"Board" means the Legal Aid Board;

"family mediation services" has the same meaning as it has in the Civil Legal Aid Act 1995 (insertedby section 53 of this Act).”.

Amendment agreed to.

I move amendment No. 20:

In page 46, after line 47, to insert the following:

49.—On the coming into operation of this section the functions of the Agency relating to family mediation services shall be transferred to and be a function of the Board.

Amendment agreed to.

I move amendment No. 21:

In page 46, after line 47, to insert the following:

50.—(1) The Agency shall, as soon as practicable following receipt by it of a direction from the Minister for Children and Youth Affairs in that regard, transfer such land as may be specified in that direction to the Board.

(2) A direction referred to insubsection (1) shall be made with the consent of the Minister and the Minister for Public Expenditure and Reform.

Amendment agreed to.

I move amendment No. 22:

In page 46, after line 47, to insert the following:

51.—(1) The Agency shall, as soon as practicable following receipt by it of a direction from the Minister for Children and Youth Affairs in that regard, transfer such rights and liabilities as may be specified in that direction to the Board.

(2) A direction referred to insubsection (1) may be made by reference to a class or classes of rights or liabilities.

(3) A direction referred to insubsection (1) shall be made with the consent of the Minister and the Minister for Public Expenditure and Reform.

(4) In the event of any doubt arising as to whether a right or obligation stands transferred to the Board in accordance with this section, the Minister for Public Expenditure and Reform may issue a determination as respects any such right or liability and such determination shall be admissible as evidence in any proceedings relating to the right or liability concerned.

(5) Every right or liability transferred to the Board pursuant to this section may, on and after such transfer, be sued on, recovered or enforced by or against the Board in its own name.

Amendment agreed to.

I move amendment No. 23:

In page 46, after line 47, to insert the following:

52.—(1) Subject to the provisions of this section, such officers and members of the staff of the Agency who are designated by the Minister for the purposes of this section shall stand transferred to the Board on such day as may be specified for the purpose by the Minister.

(2) The designation of staff and the specifying of a day in accordance withsubsection (1) shall be made with the consent of the Minister for Children and Youth Affairs and the Minister for Public Expenditure and Reform.

(3) (a) Subject to paragraph (b) every person who, immediately before he or she was transferred to the Board in accordance with subsection (1), was an officer of the Agency shall, on such transfer, be an officer of the Board and hold an unestablished position in the Civil Service.

(b) Every person who, immediately before he or she was transferred to the Board in accordance with subsection (1), was a fixed-term employee of the Agency shall, on such transfer, hold an unestablished position as a fixed-term employee of the Board for the unexpired duration of his or her contract of employment.

(4) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person referred to insubsection (1) shall not, on being transferred to the Board, be made subject to less beneficial terms and conditions of service (including those relating to tenure of office) or of remuneration than the terms and conditions of service (including those relating to tenure of office) or of remuneration to which he or she was subject immediately before that transfer.

(5) The previous service of a person transferred undersubsection (1) shall be reckonable for the purposes of, but subject to the exceptions or exclusions in, the following:

(a) the Redundancy Payments Acts 1967 to 2007;

(b) the Protection of Employees (Part-Time Work) Act 2001;

(c) the Protection of Employees (Fixed-Term Work) Act 2003;

(d) the Organisation of Working Time Act 1997;

(e) the Terms of Employment (Information) Acts 1994 and 2001;

(f) the Minimum Notice and Terms of Employment Acts 1973 to 2005;

(g) the Unfair Dismissals Acts 1977 to 2007;

(h) the Maternity Protection Acts 1994 and 2004;

(i) the Parental Leave Acts 1998 and 2006;

(j) the Adoptive Leave Acts 1995 and 2005;

(k) the Carer’s Leave Act 2001.

(6) Any superannuation benefits awarded to or in respect of a person transferred undersubsection (1), and the terms and conditions relating to those benefits, shall be no less favourable than those applicable to or in respect of the person immediately before the transfer.

(7) In this section—

"Civil Service" has the same meaning as in the Civil Service Regulations Act 1956;

"recognised trade union or staff association" means a trade union or staff association recognised by the Agency or the Board for the purposes of negotiations which are concerned with the remuneration, conditions of employment or working conditions of the persons concerned.

Amendment agreed to.

I move amendment No. 24:

In page 46, after line 47, to insert the following:

53.—With effect from the coming into operation ofsection 49 of the Civil Law (Miscellaneous Provisions) Act 2011, the Civil Legal Aid Act 1995 is amended:

(a) in section 1, by the insertion of the following definition:

"‘family mediation services' means services designed to assist persons involved in the process of seeking—

(i) a separation,

(ii) a divorce,

(iii) a dissolution of a civil partnership,

(iv) payment of maintenance,

(v) an order of a court or an agreement relating to guardianship or custody of a child, or to parental access to a child, to reach agreement relating to some or all of such matters as relate to the persons concerned;",

(b) in section 5, by the substitution of the following for subsection (1):

"(1) The principal functions of the Board shall be:

(a) to provide, within the Board’s resources and subject to the other provisions of this Act—

(i) legal aid and advice in civil cases to persons who satisfy the requirements of this Act, and

(ii) a family mediation service;

(b) where the Board considers it necessary or expedient to do so to make arrangements for the provision of—

(i) family mediation services on its behalf by the engagement of persons appointed by it for that purpose, and

(ii) training in family mediation, either by itself or by persons appointed by it for that purpose.",

(c) by the insertion, after section 11, of the following section:

11A.—(1) The Board may appoint persons who it considers to be qualified by reason of training and experience, to provide family mediation services on its behalf or to provide training in family mediation.

(2) A person appointed pursuant to subsection (1) shall not be an officer or member of the staff of the Board.

(3) A person appointed by the Board pursuant to subsection (1) shall be appointed subject to such terms and conditions as may be determined by the Minister and the Minister for Public Expenditure and Reform.

(4) Subsection (2) shall not be construed as preventing the Board appointing a person as an officer or member of the staff of the Board in relation to the provision of a family mediation service by the Board.",

(d) by the insertion, after section 36, of the following sections:

36A.—(1) Any communication (including any record of such communication) between any of the parties to a family mediation provided by the Board or provided by other persons appointed for that purpose by the Board under this Act, and a third party, including a mediator, for the purposes of attempting to reach agreement relating to such of the following matters as relate to the parties to the mediation—

(a) a separation,

(b) a divorce,

(c) a dissolution of a civil partnership,

(d) payment of maintenance,

(e) an order of a court or an agreement relating to guardianship or custody of a child, or to parental access to a child, shall not be disclosed and shall not be admissible as evidence in any court.

(2) Subsection (1) is in addition to and not in substitution for any other statutory provision.

(3) Nothing in this section shall prevent a party who is engaged in or who engaged in a family mediation communicating the progress made in that mediation to his or her solicitor and obtaining legal advice in relation to the matters the subject of the mediation.

36B.—(1) The Board shall, with the consent of the Minister, make guidelines with the objective of preventing the disclosure of communications referred to in section 36A.

(2) Guidelines made under subsection (1) shall include provisions relating to—

(a) the utilisation of premises for the purposes of family mediation services other than the premises where the solicitor of the Board is usually located who is acting for a person who has been issued with a legal aid certificate under section 29 and who is a party to a family mediation provided by the Board or a person appointed by it, and

(b) the regular training of staff and officers of the Board and of persons appointed by the Board to provide family mediation services regarding the need to maintain confidentiality of communications made in connection with a family mediation.”,

and

(e) in section 37—

(i) by the insertion in subsection (2), after paragraph (f), of the following paragraphs:

"(fa) make provision as to the conditions relating to the provision of family mediation services by the Board;

(fb) prescribe fees or charges which may be charged by the Board in relation to the provision of family mediation services, which regulations may prescribe different fees or charges in relation to different classes of persons or different classes of cases;”,

and

(ii) by the insertion after subsection (2) of the following subsection:

"(3) Regulations made pursuant to subsection (2)(fb) shall not prescribe fees or charges in relation to the provision of family mediation services where the parties to the mediation had agreed to enter such mediation before the coming into operation of section 49 of the Civil Law (Miscellaneous Provisions) Act 2011.”.

Amendment agreed to.

I move amendment No. 25:

In page 46, after line 47, to insert the following:

54.—Section 4 of the Family Support Agency Act 2001 is amended—

(a) in subsection (1), by the deletion of paragraphs (a) and (b), and

(b) in subsection (2), by the deletion of paragraph (a).

Amendment agreed to.

Amendment No. 26 is in the names of Deputies O'Brien and Ó Snodaigh. Amendments Nos. 27 and 28 are related. If amendment No. 26 is agreed, amendments Nos. 27 and 28 cannot be moved.

I move amendment No. 26:

In page 50, to delete lines 14 to 39.

This is something we discussed on Committee Stage in relation to the Official Languages Act 2003. We resubmitted the amendment because we feel so strongly on it.

I will not go through the arguments because we must finish by 2 o'clock, which is unfortunate. Considering the number of amendments, we probably should have had a little more time on it.

Anything that diminishes the standing of the Irish language must be opposed by all Deputies in this House. I repeat my complete shock on hearing that it was the Minister for Arts, Heritage and the Gaeltacht who asked for this amendment to be included. We will be pressing the amendment to a vote.

I tabled a number of amendments which were ruled out for various reasons earlier and they capture my view of this section of the Bill. It is a dilution of the standing of the Irish language, which in many ways has only been achieved in recent years, especially since the passage of the Official Languages Act 2003. Prior to that, it had a standing in theory but it was not as well implemented as it should have been.

This is not necessarily the proper place for it in this legislation, but I have argued that all Bills should be contemporaneously published in the Irish language and the English language to allow us who wish to partake in a debate fully in the Irish language to do so, as, supposedly, is our right under the Constitution. We have not been able to enjoy that in this Dáil, nor in previous Dála. The only sop to the Irish language is that I can partake in the debate. I can contribute to this debate in the Irish language but I cannot contribute in writing to it. If I proposed amendments in Irish to legislation which is published in English, they would be ruled out, as amendments have been in the past.

This is part of a trend since this Government has come into being. It began with the passage of the Social Welfare and Pensions Bill 2011, where the provisions of the Official Languages Act 2003 were set aside on that occasion as well. Here, again, the Official Languages Act 2003 is being set aside to facilitate more dilution of it.

This is at a time when we are told there is a review of the Official Languages Act 2003. After the review, there might be some logic in the Minister stating that this provision would be required. However, prior to a review, there is none to start undermining an Act which is only in being eight years.

Subsequently, the Irish language had an increased status given to it by recognition in the European Union and here the Government is undermining at home that recognition and what was gained after a long campaign for many years. It is a retrograde step.

I will not unduly delay this because I argued most of the points on Committee Stage. In fact, all Committee Stage did was ensure that I would continue to fight this, which was the reason I tabled a number of amendments which stated there would be a sunset clause to this provision or that there would be other provisions which would prevent it occurring immediately or forever more.

My preference is to delete this section. The other amendment I suggested is that, if anything, the only provision should be that it could be published in the official State language if the Government would only publish it in one, namely the Irish language. I guarantee that would never happen and it would be published in both languages. There are few, if any, Bills or Acts which have been published in the Irish language only. It is easy to translate from the Irish language to the English language but there seems to be some type of a hiccup when it is the other way round. It would be much easier if, from the start, the Bills were published in both languages and then the amendments could be tracked and there would be virtually contemporaneous publication of the Acts in both languages shortly after their passage in the Houses of Oireachtas, as is done in many other Parliaments which are dealing with bilingual or trilingual societies.

I support Deputy O'Brien's amendment. It is unfortunate that we must split, because this has been a good debate on this legislation, because the Minister for Arts, Heritage and the Gaeltacht, Deputy Deenihan, has asked the Minister, Deputy Shatter to do it. Quite frankly, it is unbelievable that An Roinn Ealaíon, Oidhreachta agus Gaeltachta is looking for this provision, which seems to be in every piece of legislation. I tabled a question to the Minister for Arts, Heritage and the Gaeltacht today and it was ruled out of order because of the context of this debate.

The Official Languages Act 2003 is not perfect. It certainly has done much good, but it needs to be reviewed and streamlined. By inserting this clause we are doing what we have done with previous legislation, that is to say, giving direction to that review. Effectively, we are making the point in advance of that review starting that we intend to downgrade the status of the Irish language. Our MEPs were in the House before the Joint Committee on European Union Affairs today. We have fought long and hard to have Irish recognised as an official working language of the European Union. However, through this and other legislation we are attempting to diminish its status here and on that basis we support the amendments.

Amendments Nos. 26 to 28, inclusive, proposed by Deputies Ó Snodaigh and O'Brien relate to attempts to delete or amend the practical proposal in regard to immediate publication on the Internet of Bills in one of the official languages on enactment while we wait for several weeks for the translation in the other official language to become available.

I oppose these amendments. I have given the reasons behind the proposals at all previous Stages of the Bill in the House and I reiterate them. There is no question of diminishing the status of the Irish language. The reality is that we enact legislation through English, Bills are initially drafted in English, amendments are tabled in English and they appear initially in their final form in English. There is no point in engaging in a fiction or pretending it is different and depriving ordinary citizens of the country from having immediate access to legislation passed in the Parliament. It is an important right of citizens of the State to have ready access and, in so far as we can provide it, instant access to the legislation that we enact through both Houses. The changes are included in this Bill because it is a miscellaneous provisions Bill and it is a matter of civil law, not criminal law. It is appropriate that these changes are included in the Bill

Kicking the can down the road on this issue to include it in a different Bill will not change the problem, vary the issue or change the solution. The situation in practice has been that when Report Stage of Bills has been completed there has been an undue delay between the enactment of the Bills through both Houses and the publication of the final version of Bills as Acts in both the English and Irish languages. Under the Official Languages Act 2003 the issue is that upon proper and full publication an Act must be published simultaneously in both Irish and English. Since that legislation was passed, the use of electronic means to communicate has evolved and become more sophisticated. Deputies can access Bills on the web as they go through the various Stages. We are in the anomalous position that once a Bill has completed its passage through both Houses it seems that it cannot in its final form be immediately published and made available by way of electronic means because there must be a delay while translations are effected.

It makes no sense that access can be gained by electronic means to a Bill after it has passed Committee Stage in its new form, including any amendments, after it has passed Report Stage in one House, after it has passed Committee Stage in a second House, but that once it has completed Report Stage in the second House, that Bill may remain unpublished in its final form for some time. We must recognise the reality and the rights of citizens to gain access as rapidly as possible to legislation enacted in both Houses when it is in its final form following completion of the legislative process. The previous Government intended to include in its Civil Law (Miscellaneous Provisions) Bill 2010 a provision to address this issue and it had commenced work in that regard.

The current Attorney General has given the same advice as her predecessor, that is to say, that it is necessary to do this because there is a frailty in the law and it is unwise that we postpone it at any further. As I have stated already, the amendment was requested to be included in the Bill by the Minister for Arts, Heritage and the Gaeltacht, Deputy Jimmy Deenihan, and it is the advice of the Attorney General that it was necessary to be so included. There is no benefit to the workings of the House, to the people or to citizens living outside this country who may have an interest in legislation being passed in the House that may impact on their lives, that following or completing the process they cannot access it immediately in its final form through electronic means. This applies as much to this measure as it does to all measures enacted in the past. The benefit is that when this change is made in the case of all future legislation enacted within a short period after this process is complete the legislation will become available to those who wish to access it.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 86; Níl, 35.

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Coveney, Simon.
  • Creed, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Regina.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Griffin, Brendan.
  • Harrington, Noel.
  • Hayes, Tom.
  • Heydon, Martin.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Keaveney, Colm.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Lyons, John.
  • McCarthy, Michael.
  • McEntee, Shane.
  • McFadden, Nicky.
  • McGinley, Dinny.
  • Maloney, Eamonn.
  • Mathews, Peter.
  • Mitchell O’Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Nash, Gerald.
  • Neville, Dan.
  • Ó Ríordáin, Aodhán.
  • O’Donovan, Patrick.
  • O’Dowd, Fergus.
  • O’Mahony, John.
  • O’Reilly, Joe.
  • O’Sullivan, Jan.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Shortall, Róisín.
  • Spring, Arthur.
  • Stanton, David.
  • Timmins, Billy.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Varadkar, Leo.
  • Wall, Jack.
  • Walsh, Brian.
  • White, Alex.

Níl

  • Boyd Barrett, Richard.
  • Browne, John.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Cowen, Barry.
  • Crowe, Seán.
  • Dooley, Timmy.
  • Ellis, Dessie.
  • Flanagan, Luke ‘Ming’.
  • Fleming, Tom.
  • Healy, Seamus.
  • Higgins, Joe.
  • Kelleher, Billy.
  • Kirk, Seamus.
  • Kitt, Michael P.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McGrath, Finian.
  • McLellan, Sandra.
  • Martin, Micheál.
  • Murphy, Catherine.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O’Brien, Jonathan.
  • O’Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Smith, Brendan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Troy, Robert.
Tellers: Tá, Deputies John Lyons and Paul Kehoe; Níl, Deputies Aengus Ó Snodaigh and Seán Ó Fearghaíl.
Question declared carried.
Amendment declared lost.

As we have now passed the allocated time, 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 and Equality and not disposed of are hereby made to the Bill, that Report Stage is hereby completed and that the Bill is hereby passed."

Question put and agreed to.