Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Committee and Remaining Stages

SECTION 1

I move amendment No. 1:

In page 6, line 2, after “provisions” to insert the following: “and continue in operation until the 9th day of November 2020, unless a resolution approving of its continuation has been passed by both Houses of the Oireachtas”.

This amendment concerns a time limit on this legislation. As was acknowledged by the Minister, all the other legislation enacted regarding the Covid-19 pandemic and the emergency actions that needed to be taken, which were all appropriate, had a time limit set down for when they will come to a conclusion. We believe this should also be the case with this legislation. One thing struck me when the Minister was making her Second Stage contribution was that we had accepted there would not be pre-legislative scrutiny of this Bill because we understood it was going to be pandemic-related. That was why we and all the other Opposition Members regarded it as fair enough that we would not have pre-legislative scrutiny, because there was a precedent in respect of other pandemic-related legislation.

Then, however, it was acknowledged in the first or second paragraph that the Bill goes beyond the pandemic. If we had been told that at the outset, we would not be in this position now. We would have said, "No", and that there must be proper pre-legislative scrutiny of this Bill. That we are in this position now means that we need to ensure we at least have a time limit for this legislation. The time limit we have suggested is in keeping with the ending and renewal, most likely, of the health sections of legislation regarding Covid-19.

Our amendment states: "In page 6, line 2, after “provisions” to insert the following: “and continue in operation until the 9th day of November 2020, unless a resolution approving of its continuation has been passed by both Houses of the Oireachtas". The reality is that we expect that would happen if the pandemic is then still the crisis that it is now and it is looking most likely that it is heading in that direction.

In that context, I commend this amendment to the Minister and to the House to ensure there is a time limit on this legislation, just as there has been on all the other legislation concerning the pandemic. She may argue that this legislation is as it is because it extends beyond the pandemic. There is an issue with that, because we do not believe that this Bill should go beyond the pandemic. We believe that any Bill with provisions that extend beyond the pandemic should get proper pre-legislative scrutiny. That has been denied to this Bill and we believe that is to ensure that the vulture funds will benefit from it the most, as well as other large businesses that may go into disputes in court. That is totally unfair and reprehensible regarding how we do our business in this House. We should not be here in this position on the last day the Dáil is sitting before the summer recess.

I support this amendment. The last day of a session is always one in which things can be pushed through. I do not think any of us expected to be sitting here very late tonight dealing with a very contentious section in this legislation and the very least that could be expected is that there would be a sunset clause in it. The Government has a majority and the question it must ask is: does it trust itself?

Including this amendment in the legislation would at least mean there will be time for reflection and a review within a time limit that will allow us to deal with some of these aspects in an urgent manner. This is a very reasonable amendment and I hope the Minister will accept it. There are positive provisions in the legislation, but there are also provisions that we are rightly concerned about. As someone said earlier, it is highly unusual that every Deputy who spoke drew attention to the same issue with which they have concerns. How can that fall on deaf ears? I hope the Minister will accept this amendment.

It is hard to catch the attention of the Acting Chair when I am up in the gods.

I will do my best. I hope we will be in more proximate circumstances after the recess.

The amendment suggests the insertion of a sunset clause to this Bill. As I indicated in my contribution on Second Stage, I believe there is a lot in this Bill that should be made permanent, particularly the long-awaited amendments to the Coroners Acts. The two-year waiting period for coroner's inquiries in Dublin is entirely unacceptable. Many of the administrative changes that are proposed in this Bill should be made permanent. Deputy coroners should be able to act. It should be possible to appoint more than one coroner per district outside Dublin to be able to respond to a build-up of cases beyond simply dealing with the pandemic.

Having said that, there are aspects of this Bill that as the Minister is aware, do not fit in as requirements to address the pandemic and the emergency provisions that we are facilitating here. I cannot recall too many debates in this House where every speaker from each group has urged caution on the Minister, as has happened here. All contributors have asked that the sections that relate to the presentation of business evidence in civil cases be withdrawn from the Bill so that there can be proper legislative scrutiny applied to it in the cold light of day through the taking of expert testimony. The Minister wishes to persevere and, in three hours, enact legislation that would normally take weeks or months to enact. In light of that, it is a reasonable request that a sunset clause be inserted for the entirety of the Bill in order that we have the chance to put on a permanent basis those things that we will have a consensus to put on a permanent basis and to properly scrutinise, parse and analyse the potential impact across the civil legal process of the profound changes contained in this Bill, which is to go through this House in a period of three hours.

Deputy Mattie McGrath is next. I am trying to get as many people as I can in and give the Minister time to reply to the points raised. I will then come to a second round of questions.

The Minister ran out of time earlier, whether deliberately or not, before addressing the most important parts of the Bill. She admitted that she was not going to listen to anyone here and was going to force through all sections of the Bill.

I support this amendment because the insertion of a sunset clause is vital especially when it is dubious how the sections that deal with hearsay evidence appeared in this Bill. The Minister is saying that these suggestions came from the Judiciary and officials in the Department of Justice and Equality but I do not believe that. Vulture funds have been in this country for more than ten years. They were welcomed by the former Minister for Finance, Michael Noonan, in the time after the economic crash. They have been getting preferential treatment. I have been in the courts on countless days and justice unheard is justice denied. One cannot hear what is going on with barristers and judges who are whispering. Unfortunate defendants are shaking their feet and being told to stand up and speak up. What has gone on in the courts should be a cause of shame.

This legislation is giving the vulture funds licence to do what they like and carry on. It has been happening throughout the pandemic and to include these sections in this Bill is shocking.

I have heard Fianna Fáil backbenchers speaking against these provisions. The Government is all over the shop. If this Dáil session lasted another week or two, the Government would collapse before we went on our holidays. This is scandalous legislation. It is subterfuge, trickery and blackguarding at its best to get the way of the vulture funds. Those funds and the banks have the Government in hock to them. Is it a kind of homage the Government pays to them or to its European masters or whatever? It is despicable legislation and has no sunset clause. There is a sunset clause in every other legislative measure we have passed in response to Covid-19. Each Bill has a definite end point, although we can extend it. There is no such clause for this Bill because the Government wants to save the banks, bankers and vulture funds. There is no other reason for it. They have stuck these sections into the Bill to have it passed in the final few hours of the final Dáil session before we go on summer holidays. It is nothing but an outrage and the members of the Government should hang their heads in shame.

I also support this amendment. As an elected representative for Kerry and rural people, it would be remiss of me not to support this amendment. In doing so, I am supporting ordinary working people who may be in trouble with their houses and before the courts because vulture funds are trying to evict them. It would be remiss of me to neglect a farmer whose land may be taken from him. I support this amendment in order to defend any developer or landowner whose lands or factory building might be taken from him or her. There may be jobs at stake in such circumstances. It is wrong to give the vulture funds a whip hand in a court scenario and while I support the aspects of the Bill that deal with the pandemic, I am not supporting the rest of it because all those other things should receive legislative scrutiny.

We all know that too many cooks spoil the broth. This legislation has been rushed together by Fine Gael, Fianna Fáil and the Green Party. It will not be the three parties that are blamed in the fullness of time when this becomes known as wrong legislation, it will be the Minister. An hour or so ago, I wished the Minister well in her new post. I am appealing to her to see the light of day here and assure me that the Government will insert a sunset clause and expiry date into this Bill. If that is not done, this legislation is a recipe for disaster. The way this Bill is being rushed through is unfair. The Minister is new in her job but she will-----

I thank the Deputy. I must call on two more speakers, one of whom he knows well.

I again thank the Deputy. Deputies Michael Healy-Rae and Daly are the next speakers. I want to allow the Minister an opportunity to address the issues that have been raised because there is no sense in doing otherwise.

I do not think I have had an opportunity to wish the Minister well in her new portfolio so I do that now. I wish to voice my concerns over the legislation that is being rushed through here. Speaker after speaker has raised concerns over what the Minister and the Government are trying to do. To be honest, I think that the Government is extremely lucky that the Dáil is rising tonight for its summer recess. All the Government is doing is going from one crisis to another. As far as I am concerned, the Government is like a motor car going down a hill with four bald tyres, no steering wheel, no petrol in the tank and no brakes.

I ask the Deputy to apply the handbrake to his speech.

I just want to say-----

I want to be fair and bring in the final speaker.

I have not finished. I am appealing to the Minister to allow this sunset clause and amendment to go through. It is the right, honourable and decent thing to do.

I am also speaking in favour of the amendment. The Covid-19 crisis has been used as an excuse to do many good things such as the efficiencies that will be brought to the Coroners Acts. However, bringing in legislation such as the Bill about which we are speaking at the last minute to facilitate vulture funds cannot be right.

I also think there is a serious problem with closing the courts in Sligo and Tralee and consolidating them in Limerick. It is not desirable to take members of An Garda Síochána out of the counties they are in and take them to a centralised location.

The provision in this Bill to allow sentencing up to life imprisonment to take place in a prison, where an accused is not beside his or her legal team, is deeply flawed. I am supporting the amendment to prevent that becoming a permanent provision because it is totally unfair that someone could receive a life sentence outside a courtroom overseen by a judge.

I will speak to this point and address another one. I ran out of time; I was not avoiding answering questions.

The measures in the Bill are Covid-specific, but also address a lot of built-in efficiencies in a system that needs to be reformed. That is why there is no sunset clause in the Bill. The vast majority of what is in the Bill has been thought through. It has not appeared in the past few weeks or months.

Sections 12 to 19, inclusive, which Deputies have referenced, were not developed by vulture funds or lobbyists. The Bill does not deal with that. They are being included because they, along with other issues, have been identified as being necessary to reduce delays in the majority of cases. There is no challenge to the majority of documents. It is important to say that a document being included or admissible in evidence does not mean that a court will presume that the records are correct. That is very evident in the Promontoria case, where it was a judge who identified this.

Under the proposed amendments, business records can still be challenged in the normal way. There are a number of safeguards that will ensure all parties would be aware of, and have an opportunity to object to, the documents being presented via this channel. I have to again point to the fact that the vast majority of these documents are not contested and there is no issue with them. Where there is, and where somebody wants to raise concerns, they have an opportunity to do so. In addition, as I have mentioned, they can be challenged by the courts, which will have a specific power under the proposed section 16(1) to exclude business record evidence in the interests of justice on its own motion, such as, for example, in a case where no formal application has been made to exclude a business record because the litigant is not there or is not legally represented.

The commission's report, which I referenced, recommended that records compiled in the course of business, because they are generally reliable, should be admissible in civil proceedings as an inclusionary exception to the hearsay, subject to the safeguards set out in the Bill. Under section 15, the party who seeks to rely on business record evidence must give advance notice or provide an advance copy to other parties. Under section 15(2), the other party is required to provide advance notice of his or her intention to object. There is no procedural restriction on the right to adduce countervailing evidence in terms of the evidential weight to be afforded to the business record section in the relevant part and that regard shall be had to all of the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

This is not something that has been brought in in the dead of night or which will benefit vulture funds. It is part of a wider package of measures that we want to introduce to ensure that our court system can start to function as close to 100% as possible. We know that will not be the case, but the Bill will introduce efficiencies that will benefit people. The measures will not in any way support vulture funds or hinder anybody in ensuring that justice is served.

I will not accept the amendment because under Standing Order 164 I have an opportunity, as Minister, to report to the Dáil after 12 months. I will monitor the situation carefully and I fully take on board the points Deputies have made. If what they are suggesting does happen, then I will respond. I do not believe that will be the case. If what they have said will happen does happen, I assure the House I will address that.

There are safeguards in the Bill to ensure that will not be the case and everybody has an opportunity to challenge documents brought before the courts. Given that there is a sunset clause in the amendment, I cannot accept it. These measures are not necessary for the longer-term development and modernisation of our court system, but are absolutely vital to ensure that our systems can function at as close to full capacity as possible while addressing the very significant challenges we face during Covid-19.

I want to advise Deputy Kenny that in five minutes I will put a question.

I will not delay. There is a major contradiction in this Bill. Everything we are doing is supposed to be about the pandemic, yet the Minister is introducing measures which have nothing whatsoever to do with the pandemic, and she said as much in her speech. It is worth pointing out what the Bill will do. Sections 12 and 13 will allow assignees to loans, commonly known as vulture funds, to rely on what would otherwise be inadmissible hearsay evidence when seeking summary judgments of money or property. Summary judgments happen in situations where a normal process is not in place and witnesses are not present and are not called. That is the problem. People can lose their properties and livelihoods, and can have significant financial judgments made against them when a particular type of documentary evidence can be used, which would normally be considered hearsay and inadmissible. That is a difficulty in the Bill, and we need to deal with that difficulty.

The Deputy has an opportunity to put the amendment now, or wait for the guillotine.

I will put my amendment now. A second amendment deals with that entire section, including chapter 3-----

It is the second part of the amendment, which proposes to delete a section. Every speaker has called for that. We can come back next September and deal with this issue properly. I do not understand why, if the Minister is so confident that this will do no harm, she is afraid of proper scrutiny of the measure.

Amendment put:
The Dáil divided: Tá, 64; Níl, 80; Staon, 0.

  • Andrews, Chris.
  • Barry, Mick.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Browne, Martin.
  • Buckley, Pat.
  • Cairns, Holly.
  • Carthy, Matt.
  • Clarke, Sorca.
  • Collins, Joan.
  • Collins, Michael.
  • Conway-Walsh, Rose.
  • Cronin, Réada.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Pa.
  • Doherty, Pearse.
  • Donnelly, Paul.
  • Ellis, Dessie.
  • Farrell, Mairéad.
  • Fitzmaurice, Michael.
  • Funchion, Kathleen.
  • Gannon, Gary.
  • Guirke, Johnny.
  • Harkin, Marian.
  • Healy-Rae, Danny.
  • Healy-Rae, Michael.
  • Howlin, Brendan.
  • Kelly, Alan.
  • Kenny, Martin.
  • Kerrane, Claire.
  • Mac Lochlainn, Pádraig.
  • McDonald, Mary Lou.
  • McGrath, Mattie.
  • McNamara, Michael.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Mythen, Johnny.
  • Nash, Ged.
  • Nolan, Carol.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • O'Reilly, Louise.
  • O'Rourke, Darren.
  • Ó Broin, Eoin.
  • Ó Laoghaire, Donnchadh.
  • Ó Murchú, Ruairí.
  • Ó Ríordáin, Aodhán.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Patricia.
  • Sherlock, Sean.
  • Shortall, Róisín.
  • Smith, Bríd.
  • Smith, Duncan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Tully, Pauline.
  • Ward, Mark.
  • Whitmore, Jennifer.
  • Wynne, Violet-Anne.

Níl

  • Berry, Cathal.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Colm.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Carroll MacNeill, Jennifer.
  • Chambers, Jack.
  • Collins, Niall.
  • Costello, Patrick.
  • Coveney, Simon.
  • Cowen, Barry.
  • Crowe, Cathal.
  • Devlin, Cormac.
  • Dillon, Alan.
  • Donnelly, Stephen.
  • Duffy, Francis Noel.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzpatrick, Peter.
  • Flaherty, Joe.
  • Flanagan, Charles.
  • Fleming, Sean.
  • Foley, Norma.
  • Griffin, Brendan.
  • Haughey, Seán.
  • Heydon, Martin.
  • Higgins, Emer.
  • Hourigan, Neasa.
  • Kehoe, Paul.
  • Lahart, John.
  • Lawless, James.
  • Leddin, Brian.
  • Lowry, Michael.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Matthews, Steven.
  • McAuliffe, Paul.
  • McConalogue, Charlie.
  • McEntee, Helen.
  • McGrath, Michael.
  • McHugh, Joe.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murnane O'Connor, Jennifer.
  • Murphy, Eoghan.
  • Murphy, Verona.
  • Naughton, Hildegarde.
  • Noonan, Malcolm.
  • O'Brien, Darragh.
  • O'Brien, Joe.
  • O'Callaghan, Jim.
  • O'Connor, James.
  • O'Dea, Willie.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Gorman, Roderic.
  • O'Sullivan, Christopher.
  • O'Sullivan, Pádraig.
  • Ó Cathasaigh, Marc.
  • Ó Cuív, Éamon.
  • Rabbitte, Anne.
  • Richmond, Neale.
  • Ring, Michael.
  • Ryan, Eamon.
  • Shanahan, Matt.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Smyth, Ossian.
  • Stanton, David.
  • Troy, Robert.
  • Varadkar, Leo.

Staon

Tellers: Tá, Deputies Martin Kenny and Pádraig Mac Lochlainn; Níl, Deputies Brendan Griffin and Jack Chambers.
Amendment declared lost.

The time permitted for this debate having expired, I am required to put the following question, in accordance with an order of the Dáil of 28 July: "That in respect of each of the sections undisposed of, the sections are hereby agreed to in Committee; the Title is hereby agreed to in Committee; the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed; and the Bill is hereby passed."

Question put:
The Dáil divided: Tá, 84; Níl, 64; Staon, 0.

  • Berry, Cathal.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Colm.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Carroll MacNeill, Jennifer.
  • Chambers, Jack.
  • Collins, Niall.
  • Costello, Patrick.
  • Coveney, Simon.
  • Cowen, Barry.
  • Crowe, Cathal.
  • Devlin, Cormac.
  • Dillon, Alan.
  • Donnelly, Stephen.
  • Duffy, Francis Noel.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frankie.
  • Fitzpatrick, Peter.
  • Flaherty, Joe.
  • Flanagan, Charles.
  • Fleming, Sean.
  • Foley, Norma.
  • Grealish, Noel.
  • Griffin, Brendan.
  • Harris, Simon.
  • Haughey, Seán.
  • Heydon, Martin.
  • Higgins, Emer.
  • Hourigan, Neasa.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Lahart, John.
  • Lawless, James.
  • Leddin, Brian.
  • Lowry, Michael.
  • MacSharry, Marc.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Matthews, Steven.
  • McAuliffe, Paul.
  • McConalogue, Charlie.
  • McEntee, Helen.
  • McGrath, Michael.
  • McHugh, Joe.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murnane O'Connor, Jennifer.
  • Murphy, Eoghan.
  • Murphy, Verona.
  • Naughton, Hildegarde.
  • Noonan, Malcolm.
  • O'Brien, Darragh.
  • O'Brien, Joe.
  • O'Callaghan, Jim.
  • O'Connor, James.
  • O'Dea, Willie.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Gorman, Roderic.
  • O'Sullivan, Christopher.
  • O'Sullivan, Pádraig.
  • Ó Cathasaigh, Marc.
  • Ó Cuív, Éamon.
  • Rabbitte, Anne.
  • Richmond, Neale.
  • Ring, Michael.
  • Ryan, Eamon.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Smyth, Ossian.
  • Stanton, David.
  • Troy, Robert.
  • Varadkar, Leo.

Níl

  • Andrews, Chris.
  • Barry, Mick.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Browne, Martin.
  • Buckley, Pat.
  • Cairns, Holly.
  • Carthy, Matt.
  • Clarke, Sorca.
  • Collins, Joan.
  • Collins, Michael.
  • Conway-Walsh, Rose.
  • Cronin, Réada.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Pa.
  • Doherty, Pearse.
  • Donnelly, Paul.
  • Ellis, Dessie.
  • Farrell, Mairéad.
  • Fitzmaurice, Michael.
  • Funchion, Kathleen.
  • Gannon, Gary.
  • Guirke, Johnny.
  • Harkin, Marian.
  • Healy-Rae, Danny.
  • Healy-Rae, Michael.
  • Howlin, Brendan.
  • Kelly, Alan.
  • Kenny, Martin.
  • Kerrane, Claire.
  • Mac Lochlainn, Pádraig.
  • McDonald, Mary Lou.
  • McGrath, Mattie.
  • McNamara, Michael.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Mythen, Johnny.
  • Nash, Ged.
  • Nolan, Carol.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • O'Reilly, Louise.
  • O'Rourke, Darren.
  • Ó Broin, Eoin.
  • Ó Laoghaire, Donnchadh.
  • Ó Murchú, Ruairí.
  • Ó Ríordáin, Aodhán.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Patricia.
  • Sherlock, Sean.
  • Shortall, Róisín.
  • Smith, Bríd.
  • Smith, Duncan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Tully, Pauline.
  • Ward, Mark.
  • Whitmore, Jennifer.
  • Wynne, Violet-Anne.

Staon

Tellers: Tá, Deputies Brendan Griffin and Jack Chambers; Níl, Deputies Martin Kenny and Pádraig Mac Lochlainn.
Question declared carried.