Criminal Procedure Bill 2021: Report and Final Stages

I move amendment No. 1:

In page 9, between lines 25 and 26, to insert the following:

“(9) In respect of relevant offences to which this Act applies, where an application under section 3 of the Criminal Law (Rape) Act 1981 is made during a trial, having not previously been requested or notified at a preliminary trial hearing, the trial court must be satisfied granting any application is likely to—

(a) facilitate the expeditious and efficient conduct of the proceedings, and

(b) result in the least disruption to the jury and witnesses in the trial of the offence.”.

I will try to simplify the amendment. Section 6(8)(b)(iv) of the Bill provides that any order made under or pursuant to section 3 of the Criminal Law (Rape) Act 1981 must be addressed in the Bill. This issue relates to preliminary hearings. The language in the Bill suggests that, for instance, at a preliminary hearing of a serious sexual crime case a defence team could seek leave to cross-examine the witness or victim, depending on the term one wishes to use, regarding their previous sexual experience. All Members know that in many of these cases there may be issues around consent and so on which can be teased out. That may be appropriate in certain very limited circumstances but under the Criminal Law (Rape) Act 1981, the judge is obliged to be very cautious in that regard.

The O'Malley report suggested that one of two models be used in this regard. One of the models involves the intention to make such an application being notified at the pretrial hearing and then heard during the trial. However, the way the Bill is phrased suggests that such applications could be decided and happen at the pretrial hearing. If that were to be the case, one would have a situation whereby the victim in a sexual assault case would be the same as any other witness from the point of view of the law. The prosecution would prosecute the case, the defence team would defend and the victim would simply be a witness in regard to that.

I believe that in order to protect these persons, who in many of these circumstances are very vulnerable, every effort should be made to ensure that they have a voice. The Minister would recognise that one of the flaws in the system is that, too often, victims are simply treated as witness, have no voice or representation and find it very difficult. That is why many of them do not pursue rape or serious sexual assault claims. They feel they are simply lost in the system. Leaving aside the legislation that is before the House, there is more work to be done to consider and deal with that issue. The O'Malley report dealt with it in some detail. That is why Sinn Féin believes we should press the amendment.

Although the amendment does not deal directly with judges' decisions and cannot influence them in that regard, it does put extra emphasis on the particular point that the notification should be given in the pretrial hearing but the actual decision should not be made until the trial, at which stage there is adequate time to deal with the issue and ensure the victims in these cases do not feel subjected to, in effect, a double trial by virtue of being cross-examined at a pretrial hearing and then further cross-examined at the trial itself. That situation has occurred in certain other jurisdictions. We do not want people to be traumatised again in those circumstances and that is why I believe the amendment is needed. I tabled it on Committee Stage but withdrew it with the intention of resubmitting it on Report Stage.

This is an issue that should be addressed. I hope the Minister will accept this small amendment, which adds a particular emphasis in respect of this issue.

We will be pressing the amendment.

I concur with the comments of Deputy Martin Kenny on our amendment.

Another amendment, in the name of Deputy Pringle, calls for a review of the operation of this Bill within three years of its enactment. The Bill introduces procedures that will facilitate the trial of white-collar criminal cases and anything that will facilitate, strengthen and encourage more cases against white-collar defendants will be welcome. I used to work in the criminal courts and often saw the charges with which some people in court were faced. For example, a person was charged with stealing an apple tart. A homeless man was charged with stealing a packet of ham from Tesco. Others, mostly young fellows, were charged with having in their possession a fraction of a gram of cannabis. All of those people had potential careers destroyed because of a criminal conviction, while other cases involving financial irregularities of up to millions of pounds and euro were never brought to court. It is time for the revelry enjoyed by people with vested interests to come to an end.

I congratulate the powerful lobby of the insurance industry on the successful campaign it has waged to convince nearly everybody in the country that the high cost of premiums is due to whiplash cases. No sooner had the judges left their Zoom meeting on Saturday morning than the insurance lobby was out again, stating that premiums will not come down this year. That is unfortunate but not unexpected because we have heard the same thing for the past 30 or 40 years, including when juries were eliminated and senior council removed from civil cases and the cost of premiums continued to increase. Even when the amount of claims went down by 45% and the cost of claims per policy went down by 9%, premiums over the past ten years rose by 35%. When, in the middle of the pandemic, the amount of claims collapsed, everyone in this House and everyone in the country with an insurance policy knows that the refunds they were given amounted to €20 or €30. It is time for leadership, not salesmanship, as someone once famously said, with regard to our attitudes towards these powerful vested interest groups in the insurance industry. We must take them on. Their revelry is over and we should be doing everything we can to facilitate more cases being taken against these powerful lobbies.

I apologise for not being here at the start of the debate; the previous Bill moved faster than I expected. I thank the Deputies for putting forward this amendment. This legislation is being introduced for a number of reasons, the first being to create greater efficiencies, particularly for jury trials. It is to create greater efficiencies in the swearing in of juries and the process and challenges that entails. It is to ensure, as recommended in the Hamilton report, greater efficiencies for trials around economic crime, fraud and corruption. The Bill is also specifically designed to support victims and vulnerable persons who are going through sexual assault and rape trials, as was clearly recommended in the O'Malley report. That report sets out a number of things that we want to do and, clearly, part of that is contained in the Department's implementation plan, Supporting a Victim's Journey. The intention is to make sure that we do everything to support the victim or vulnerable person as he or she goes through this process. That is what the legislation is for.

I fully appreciate and welcome the spirit in which this particular amendment is intended but, unfortunately, I have difficulties with how it would operate in practice. This amendment would effectively mean that where the defence has not dealt with an application under section 3 of the Criminal Law (Rape) Act at a preliminary hearing, there would be only two circumstances in which the court could permit this particular issue to be raised. The first would be to benefit the expeditious and efficient conduct of proceedings, in other words, to make the running of a case more efficient in procedural terms. The second would be to help to avoid disruption to the jury and witness. The issue here is a very serious one because there may be valid circumstances in which it is simply not foreseeable at the preliminary stage that an application such as this would be needed. An example that I mentioned on Committee Stage is where new information that was not foreseen or known by either side comes to light in the course of a trial. That is only one example. One needs to be able to take into account the overall general interests of justice but also the emerging evidence piece. A court's hands would be tied by the imposition of restrictive reasons and we need to allow flexibility.

Having said that, there is a clear obligation to raise matters as early as possible in a trial process, as is set out in section 6(17) of the Bill. The whole intention of the preliminary trial hearing is that these issues are raised as early as possible. I have engaged with the Attorney General and the Director of Public Prosecutions on this matter and believe that we cannot risk compromising the right of the accused person to a fair trial. I fully accept the spirit in which this amendment is being made. The intention is that all of these issues would be raised at a preliminary trial hearing. I think that to be so restrictive as to the reasons it could potentially be accepted later on in the trial does not take into account the fact that things happen and new evidence emerges. That can often happen later on in a trial and, in the interests of justice, an application may need to be accepted at that time. I am sympathetic to the Deputies' position on this matter but those are the reasons I cannot accept the amendment.

Most people in the House would be supportive of the intentions of the movers of this amendment. We were all deeply concerned at trials in the past, both here and in our neighbouring jurisdiction, where issues were raised at trial that most of us would regard as entirely extraneous and unacceptable to be raised in the conduct of a trial.

This particular legislation deals with trying to streamline the procedures of trials in order that as many technical and legal issues as possible can be resolved in advance of a jury being sworn in and the trial proper taking place. The intention is to streamline the entire process and avoid a situation where jurors are sworn in and are left waiting days on end for legal argument to be made while they are cocooned in a jury room. The rules that apply to that process must, obviously, be fair. I am mindful of enacting any legislation that, in the unfolding of events, has an effect that we did not intend. We will rectify one such defect when we turn to the Children (Amendment) Bill later today. That Bill proposes to amend the Children Act 2001, which was being interpreted in a way that was never intended by the Oireachtas to the effect that it is not possible to identify the dead victims of crime who are children. We are going to put that right. None of us involved in the enactment of that legislation in 2000 foresaw that interpretation could be made although, in plain English, it patently was possible.

My only concern about the amendment certainly does not relate to the intention behind it but applies to its outworking. If issues arise or information is made available in a future trial that was not available in the preliminary discussions and would have a real impact on the conduct and outcome of the trial, and interfere with fair procedures, we would not want any inhibition in law to an application being made at that stage. For that reason, I am minded to listen carefully to the argument made by the Minister. She might address the core intent of the movers of the amendment, which is to ensure that the issues which we regard as unacceptable cannot be raised in preliminary hearings either.

Does anybody else wish to speak?

I too listened quite carefully to what the Minister said and I support the amendment. I agree with what Deputy Howlin said. I imagine that is true of any of us who have had experience of a jury trial. I thank everyone who does jury service because it is an onerous task. It is a fair and good system. Courts, and by extension jurors, can be held up for months. In most cases, people do not get remunerated while they are on jury service. Public service workers do, but those in the private sector do not. One can understand the reason for that, given that cases could last for 20 or 30 days or however long. There is an impact on jurors and their family life. People are restricted and must understand and accept the ground rules of jury service. Quasi legal issues should be tidied up and out of the way before a court sits because when a case commences a jury can be delayed. When juries are sworn in, they should be able to proceed without occasionally being sent home for two days or sent home on a Thursday and told to come back on the following Tuesday. People have lives to live, so it is very important that justice is done and seen to be done.

I support the amendment. In most cases a person is considered innocent until proven guilty. That is the most important part of a prima facie case, but jurors must be respected as well. Technical legal arguments can be involved and judges can adjourn to consult and get some guidance, for the want of a better word.

We also need to look at refresher courses for the Judiciary. I recall Deputy O'Dea talking about that a long time ago when he was a Minister of State in the Department of Justice. It is very important when a trial commences that it would be efficient and that there would be a clear understanding of the ground rules. The less room for equivocation or lack of clarity the better. We must be able to review legislation. Deputy Howlin referred to the Children's Act, which we are amending now. There should always be a sunset clause or review date on legislation because, although there are people in here who are much more learned than I in this area, there can be unintended consequences. There must be a mechanism to review legislation after a settling in period. Goodness knows, six months or 12 months is a short time when it comes to issues concerning the Courts Service. We must make haste slowly. The amendments have been tabled for good reason and there is good support for them. I support the amendments.

I will be very brief. The Bill is important for streamlining how the courts operate. There will be a significant reason for that because of the delays that will arise as a consequence of Covid. That is all the more reason for the Bill to be enacted. I am generally supportive of the sentiment behind the amendment, but I specifically want to hear what the Minister has to say on it. I agree with Deputy Howlin in that regard.

In terms of judges interpreting what the Oireachtas means, what the Minister says in the debate is really important because if judges are wondering how they should interpret something we give them markers. The Minister in particular gives markers on what is intended. It is important that this point is specifically addressed for that very reason. If the amendment is not taken, it may well avoid this problem arising in the first place, so it is really important that we hear that.

I will be very brief. I support the amendments because they are made in good faith to ensure that the Bill is strengthened. As Deputy Mattie McGrath stated, everybody is innocent until proven guilty. Young people are sometimes convicted for small-time crimes. Crime is bad and many great community groups such as Business Watch are trying to help to fight crime. In no way do I condone crime, but many people's lives have been ruined because of a conviction from 20 or 30 years ago and they could have lived an excellent life after making a slip up. Anything that can help in any way to get young people back on track again and to show there is a way forward through a very difficult time would be welcome.

Previous speakers referred to insurance claims and difficulties with community and voluntary groups. It has been said that changes are coming, but they cannot come quickly enough. People are being penalised and massive amounts are being paid out on claims which results in terrible difficulties for the community and voluntary sector. I have seen some quite dubious claims going through.

Previous speakers spoke about juries being sworn in. I live in a rural community and many people there are getting called to Cork for jury service. While many like to do their duty for the State, it is an area that requires close scrutiny. People's employers do not want to let them go, as they cannot pay the costs that will be incurred while they are out of their employment. They may have to travel 70 or 80 miles in each direction and a case could go on for a long period. A case might be put off for a week or two and people's entire lives can be turned upside down when they get called for jury service. It is nearly worse than being asked to a wedding for a lot of people. The system must be examined and streamlined regarding how people are picked based on where they live geographically and the availability of transport to get to a court. It should not be a letter of terror when one is called for jury service. Close consideration should be given to how people are properly compensated and how their employer is looked after while they are off work.

I support the amendment. I hope we will be able to make lives a little bit different. Peace commissioners and commissioners for oaths must also be considered in any legislation that is introduced because they carry out an important service for people on a voluntary basis and nobody ever seems to compliment them or thank them for the work they do. I have often had to call on them through my office. They are often called out at night to fill in forms and they are not recompensed. Like jurors, that is an area that has been overlooked and it should come under the Bill we are discussing.

I take the Minister's point that if a pretrial hearing occurs, if the defence does not notify the court at that stage of evidence relating to the previous sexual conduct of a victim, witness or anyone else and the trial proceeds, that it is not appropriate for the defence to seek to introduce evidence at that point. We want to see that happening at the pretrial stage. We say that if it does happen, it can only be done to facilitate the expeditious and efficient conduct of proceedings. The discovery of new evidence does not contradict that. I do not think anything would contradict it and, if anything, it would enhance it, bring more certainty and ensure that we get the right result and that people are aware they are not going into the process thinking that at the end of the day the defence can revert to a particular line of questioning without due process allowing for that to happen. This amendment is required to give that little bit of extra security for victims, in particular victims of serious sexual assault, and to ensure that the judge and those involved get a note on the interpretation of the legislation from this House.

It is very clear what the intention is and what is on paper. It states it is to result in the least disruption to the jury and witnesses in the trial of the offence. It does not meant that the court somehow ignores additional or new circumstances, evidence or discoveries that are made. I do not think anyone would interpret it that way, nor should they. Using that as an interpretation or means to block this amendment is unfair and I suggest the Minister reconsiders that.

Is any other Member offering before I go to the Minister? I call on the Minister to respond.

I again want to thank the Deputy for putting forward this amendment. I appreciate the spirit in which it has been tabled, but unfortunately because the amendment, as proposed, specifically relates to ensuring there are greater efficiencies and avoiding disruption, in a sense it ties the hands of the court, in particular where issues arise where there is an interest of justice that needs to be looked at where emerging evidence has arisen.

It is always within the scope of a judge to accept or reject a request for this type of questioning. That is for a judge to decide. The intention of the Bill is that these types of issues would be dealt with at the preliminary trial hearing, do not have trials stopping and starting, do not have juries that have been sworn in having to be sent away and come back and do not have vulnerable persons and victims being retraumatised by having to start and stop a trial two, three or four times, something which often happens.

The Bill sets out very clearly what issues can be raised at the preliminary trial hearing. Section 6(7) sets out the number of matters the court may assess at the preliminary trial hearing.

Section 6(8) refers to amending or serving an indictment, providing for additional jurors, accepting evidence by written statement or formal admission applications, questioning victims about prior sexual history, providing for practical measures like allowing testimony from behind screens, allowing a witness who is in fear or is subject to retaliation or intimidation to testify via video link, anonymity for certain categories of witnesses, allowing evidence via video link by a witness outside of the State, leave to call an expert witness, whether to allow questioning about the private life of the victim where this is necessary or in regard to the trial allowing video link evidence, a relevant order, which is very much the crux of this Bill because it relates to the admissibility of evidence, or any other order that the court may make in the absence of the jury. A significant amount can, will and should be dealt with in the preliminary trial hearings.

Section 6(17) states:

Where an order referred to in paragraph (a), (b) or (c) of subsection (8) shall be required to be sought by the prosecution or the accused during the course of proceedings for an offence to which this Part applies, the party concerned shall so inform the trial court at the first available opportunity, in order to facilitate the court in making a decision as to whether or not to direct that a preliminary trial hearing in respect of the trial of the offence shall be held.

The Bill very clearly states that the intent is that any of the issues I have outlined would be brought to the court's attention as early as possible. They would then be dealt with in the preliminary trial hearing. It is very difficult for us to tie anyone's hands. The two issues Deputy Kenny outlined refer to terms like "efficient" and "least disruption". We have sought legal advice, and spoke to the Attorney General and DPP. The advice is that the amendment ties hands and it is not something we can do in this instance. I fully appreciate the intention behind the amendment. We are bringing in this legislation to support vulnerable persons, but we have to make sure that we get the balance right.

How stands the amendment?

I will press the amendment.

Amendment put and declared lost.

Amendment No. 2 arises out of committee proceedings.

I move amendment No. 2:

In page 18, after line 37, to insert the following:

“Review of operation of Act

19. The Minister shall, not later than three years after the commencement of this Act, carry out a review of the operation of this Act.”.

This amendment is self explanatory. We had a discussion about it on Committee Stage. It states: "The Minister shall, not later than three years after the commencement of this Act, carry out a review of the operation of this Act" and that a report be laid before the House or whatever so that we could see how the legislation is performing.

On Committee Stage, the Minister said there is already a procedure in the Oireachtas whereby within a year of it being passed an Act is open to be reviewed. That is true. I had not received documentation at that time. I asked the Oireachtas how many Acts had been reviewed and what the procedure is. Interestingly, the Oireachtas was not able to give me a breakdown of the number of Acts that have been submitted for review. Either the information was not ready or was not in a format in which that analysis could be done.

A document was submitted to me. It was a report that was carried out for a presentation in London on post-legislative scrutiny of Bills and so on, which was very interesting. It makes a mockery of the 12-month review and is interesting for a number of reasons. It stated that while overall the post-legislative scrutiny process has been implemented in an ad hoc and unreflective way by Government Departments, which is damning in itself, some of the information that has been given in the reviews and documents is the type of information that could be readily obtained by Members of the Houses of Oireachtas through parliamentary questions. One could argue that is the way it should be, but the purpose of the review process is to get information about how an Act is working. The parliamentary question process may not be the appropriate way to tease out such issues.

Recommendations were made on the changes that might be useful and important. In one of the main recommendations it stated that while information about commencement and why certain sections have not been commenced is useful at the one-year point, overall the timeframe of the Government's post-enactment report should be extended from one year to three years, with the option that for certain Acts, agreed between the committee and the Minister, the timeframe should be five years.

My amendment recommends that after three years a review would take place, which is what the library service recommended for legislative review. The Minister said this is already provided for, and this Bill will come under that timeframe. From that point of view, this is an important amendment. As the Minister outlined in her response to amendment No. 1, a lot of the information will make a real difference. This is an important Bill in terms of how sexual offences are dealt with. The review of how the Bill is working will be important. It should be open to scrutiny and fully scrutinised. I would be very concerned that one year is not long enough and we will not be able to examine what has happened.

I may be wrong, but the tone from the Minister and all Government Departments seems to imply that if a Bill is passed today and the one-year timeframe is all we have that is all we are going to get. In her response to amendment No. 1, the Minister said a three-year period before a review would be too long and could not happen.

We cannot underestimate what the Department is trying to achieve, and it is important that things are done right. We need a system to ensure that things are being done right, and if changes are needed the legislation can be tweaked and things can be flagged in order that change can take place. That is why I have put forward the amendment and will press it.

This is an important amendment. As an Oireachtas, over the past number of years we have looked very carefully at pre-legislative scrutiny. We put new procedures in place. We have a memorandum of understanding between the Oireachtas and Government on the processes to be carried out for Bills to be in order before they are published and go through Second and Committee Stages and so on.

I do not think we have been as proactive in respect of post-enactment scrutiny. We are about to amend the Children Act 2001. The outworking is something for which we need to have regard.

On foot of the debate on this amendment on Committee Stage, I wrote to the Ceann Comhairle to table the existing standing order that Deputy Pringle referenced, Standing Order 197, which, on the face of it, requires all legislation to be scrutinised after 12 months. In fact, the level of assessment or scrutiny that has taken places is either non-existent or extraordinarily limited and thin. We need a fundamental re-examination of the entire mechanism relating to post-legislative scrutiny. While I certainly support the proposed amendment, it is a universal principle that we should apply to all legislation.

I understand that this matter has been tabled for the next meeting of the Committee on Standing Orders and Dáil Reform. We need to make preparations on how Standing Order 197 is being implemented in order that the sort of information being sought by Deputy Pringle would be readily available to every member of the committee and that a proper timeframe and appropriate mechanism and template for post-legislative scrutiny would be established and made a requirement for every Department. Enormous work goes into the preparation of legislation but it is almost as though once legislation has been dealt with and the commencement orders are signed, it is on to next business and we do not look in the rear view mirror at all at how the Acts that we pass impact on the lives of our citizens. This is an important and timely issue to raise.

I support the amendment in the context of this legislation. A three-year horizon is reasonable, I think 12 months would be too tight. I do not think that any ,complex legislation would have yielded worthy scrutiny in 12 months and certainly not a fundamental change in, say, legal procedure, which is what is envisaged in this legislation and which will change the way criminal proceedings are dealt with. Three years is reasonable as an initial period but it will take several years before all the intricacies of this are worked out.

There is another issue that in many items of legislation, the actual commencement of sections can take years. There are items of legislation that are enacted but that are never formally commenced. Members do not even know that either. If we pass legislation and send it to the President and he or she, having adjudicated on it, signs it into law, we should know if it never actually becomes law because a Minister simply determines not to sign a commencement order for some section. These are the matters that need to be teased out in some detail. A fundamental principle has arisen in this regard and will merit a great deal of future scrutiny. In the interim, in the context of this legislation, the amendment deserves support.

This is a good amendment. Particularly so this year, but it would be very difficult to argue that a period of 12 months would be sufficient in any circumstances. One cannot ignore Covid. It is unlikely that the courts will be back functioning properly until the end of the year at the earliest. That will only leave months to see if this is working with a very small number of cases arising to allow us to see what problems might arise. For that reason alone, this is a good amendment. It will take time before it is signed and procedures are put in place.

It should be the sponsoring Department that takes responsibility. As matters stand, annual reports would be very useful in the context of timetabling reviews. That is where the attention will be on watching the outworkings of things that were intended in a particular way and how it happens in practice in the courts. Often when we do something in theory, the practice it is very different. Some of that is because we tend to take a short-term approach to matters such as regulatory impact assessments. We need to look not only at the legislation but at how it is likely to be followed through on and whether the organisations or institutions, in this case the courts, have the mechanisms in place to allow it to work as intended, for instance if there is a need for more judges or there is a delay in the courts. It is a good amendment and I am persuaded to support it.

I also support the amendment. The Minister's response was that the period will be one year. A day is a long time in politics, as is a week, but a year for the Courts Service could be minuscule. I have personal experience of being in and out of court. The Circuit Court in Tipperary only sits three times a year, when it sits for eight days in a fortnight. My case could not be dealt with in eight days so it was put off until the next sitting, and the next one and the one after that. It could have gone on for five years except that I demanded a special hearing and was fortunate to get it. A year in that context is nonsensical. We are dealing with sexual crimes and other heinous crimes. We all support the aim behind the Bill but I am shocked - not surprised - to hear what Deputy Pringle discovered when he made inquiries and the information Deputy Howlin garnered as a result of checking matters.

Legislation is dealt with here in good faith. There are amendments, people spend a lot of time on them, and there is pre-legislative scrutiny. The Ceann Comhairle noted this morning at the meeting of the Business Committee - he has done so at every meeting we have had this year - how there are requests to waive pre-legislative scrutiny and how important pre-legislative scrutiny is. As far as I can see, however, there is no post-legislative scrutiny. Once legislation is passed, parts of it may never be enacted. I was aware of that long before today. A Minister or his or her officials may not like certain parts of an Act and they would never have the statutory instruments or whatever signed to commence them. Gardaí are meant to understand the legislation. We have an understanding of the legislation we pass but it might not be enacted even after due process, going through the various Stages and being adjudicated on by the President, signed and prepared for the enactment orders to be made.

Deputy Catherine Murphy made an important point about this year. The year is gone - it is one year to the day since Covid's impact was first really felt here - and another six months will be gone. The courts are not even sitting - they have very limited time on Zoom. When there is limited time, a trial could go on for five, six, eight or even ten years or it might never be heard. The Minister says that it has to go to the Uachtaráin and be signed but we have no idea and no way of tracing whether the various parts are enacted. We need a period of at least three years. The Minister said that five years is too long but I do not believe it is. There are cases that are languishing in the courts. A judge might ask well-informed barristers to indicate how long they think a case will take and they might say ten days. With sessions comprising only eight-day sittings in several regions three times a year, a case might never be heard. My case took 17 and a half days, so it would never have been heard. One would be in and out of court and then there is the cost involved and the delay in getting justice. The cost to me of that case, and to anyone who does not receive free legal aid, was enormous. It is a costly justice system.

It has been suggested that we have the avenue of parliamentary questions. We are ridiculed in sections of the media for asking, as they see it, frivolous parliamentary questions.

There is a cost to the Exchequer associated with parliamentary questions as well, and they are quite onerous for Departments to answer. It is a nonsense to suggest going down that road. We have so many bodies, or quangos as I call them. We need some oversight of legislation once it has been passed and signed into law by the President - or not - and its outworkings. We should be told if parts of legislation are not enacted and given reasons for that. There must be some kind of annual report. That is a big job of work but we need oversight of legislation once it leaves the Oireachtas regarding how it is bedding in, whether it has been used and the outcomes. There are enormous challenges in this area. A year is wholly inadequate because, as I said, legislation may not be tested in the courts within a year or a case under an Act may not be heard within a year. That is a weak argument from the Minister. I know personally how a case can go on and on. There is a possibility that a court case could go on for ten years and never be heard. There have been such cases. We definitely need some sort of oversight, whether that means the legislation going back to the Joint Committee on Justice or wherever. I am not too interested in the creation of another quango, but we need some oversight of legislation once it has been enacted regarding how it is bedding in, whether there been many cases, if we have case histories and if good or bad precedents have been set. We need a review.

I return to what Deputy Howlin said about the Children Act 2001. We are amending that legislation today, some 20 years later. That is just too slow when we are dealing with crimes against children, heinous crimes, sexual crimes or any crimes for that matter. Justice delayed is justice denied. I am fearful that if this amendment is not accepted, the legislation will gather dust. Parts of it might be implemented but there may be parts that are not suited to officialdom or whatever. We are the representatives elected to make legislation and we are accountable to the people.

I do not intend to use my full seven minutes. I support Deputy Pringle's sensible and practical amendment. If we are serious about learning from mistakes and processes, the least we can do is to make a review system fit for purpose. The cursory system in place after one year is not fit for purpose. I know more resources and finance will be involved, but it will be much cheaper in the long term to do something like what has been suggested in this amendment.

What comes to mind in this regard is the Assisted Decision-Making (Capacity) Act 2015. Six years later, we are still making people wards of court when the whole purpose of that legislation was to stop that awful process, which goes back to dated legislation. This is particularly important legislation concerning how a trial is run and how a victim is treated. I had mixed views on the previous amendment and I heard the point the Minister was making in that regard. If that amendment had gone to a formal vote, I am not sure how I would have voted because I could see the argument from both sides. The very point being made in the Sinn Féin amendment should be part of the review in three years' time, when potential problems and difficulties have emerged and have been highlighted.

I was a member of the Joint Committee on Justice, Defence and Equality for a short time. The lack of ongoing reviews of existing legislation, whether after three or five years, was brought into acute focus in the committee. The legislation in question was the legal aid Act. The exact point now escapes me, but the lack of a proper review came into acute focus. Legislation either never became operative or very good sections of legislation were never used. If my memory is correct, más buan mo chuimhne, the issue was that there were not enough resources available for legal aid to allow a particularly positive section in the Act to be used.

I ask the Minister to look at this amendment because it is really sensible. I agree completely with Deputy Howlin and I will not repeat what he said about the Houses having pre-legislative scrutiny but no scrutiny of Acts after they have passed, or none that makes any sense.

I also support Deputy Pringle's amendment. What the Minister is saying is that this is a timing issue and three years is too long to wait. The argument has been well made that three years is probably the appropriate time to allow legislation of this nature to be enacted and work in practice for some time before assessing the workings of preliminary hearings.

A reassessment of what has been achieved by legislation of this nature would address issues similar to that raised in our amendment, for example, the practice of examining the previous sexual conduct of victims. Another issue, which was brought up earlier, concerns the counselling notes of a victim of sexual abuse. I refer to a situation where a person who has gone through a very traumatic experience has gone to a counsellor and the notes then become evidence which the defence can seek to see during the trial. I refer to whether that is appropriate and the issues in that regard.

Many of us will be aware that, as politicians, we often play the role of counsellors as well. We speak to people in a private capacity and assure them that conversations are very much within the four walls. In a formal counselling setting, that would certainly always be stressed. Yet, here we have in legislation a situation where counselling notes can be used in a trial. There are issues around all of that which means that an adequate review of the legislation in an appropriate time will be necessary. Deputy Pringle is correct that three years would be adequate to gather enough knowledge from practitioners in law firms and jurors to decide whether the legislation is working or what are its failings. We could consider what representations we might get from victims, many of whom feel left out of the process.

The suggestion that a year would be adequate does not stand up because few, if any, preliminary hearings will be up and running within a year to allow us to make a proper assessment. The three-year period is appropriate, and I suggest that under these circumstances the Minister reconsider her position and accept the amendment.

I will be brief. I fully support this amendment. We talk about careful pre-legislative scrutiny of proposals here in the Oireachtas and that is certainly the way it should be. I have seen some cases where that has not happened, and that is unfortunate and something which should not have been allowed.

In general, we must change the way in which some criminal proceedings are carried out. Many cases would not go before the courts if the local garda had been left in local communities. It is unfortunate that local gardaí were taken away from society. They lived in the local village and always nipped crimes in the bud. Those cases never got to the point of being heard in court.

A certain case in west Cork with national relevance has been going on for five or six years. That is scandalous. It is baffling, to say the least, to see the length of time that people are waiting for cases to go before the courts for a judgment. I will support Deputy Pringle's amendment.

Regarding legislative development generally, of course we need a review procedure. I am not sure this Bill is the place to bring that in. We have a series of difficulties with our legislation, which make much of it generally impenetrable to people who need to access it and who do not have access to lawyers. It is even difficult for lawyers to read our legislation because of our dependence on textual and non-textual amendments and the way that we stick things into miscellaneous provisions Bills which amend completely different Acts. It is very hard for anybody to know what the law is on a given subject at any time.

The Law Reform Commission has put great effort into revised and annotated Acts and that project has gone some way in this regard. We have also had the statute law revision project, which has got rid of many Acts which were no longer relevant. A major textual body of work remains to be done on how we draft legislation, present it and make it accessible to people. The review of legislation needs to be part of that.

Instead of the House accepting the amendment which, while appropriately highlighting the issue, will not solve it, could the Law Reform Commission be asked to develop a system through which appropriate reviews could be carried out? Perhaps that could be linked to the other issues of presentation to which I refer. For example, the Civil Partnership Act and Certain Rights and Obligations of Cohabitants Act 2010, or the Children and Family Relationships Act 2015, which succeeded and fixed the civil partnership Act in many ways, are extensive items of legislation that just refer to other legislation such as that relating to pensions, employment and adoption, and references to "child" are put into them. That has happened again and again and legislators have raised for many decades the way in which we present legislation. Nevertheless, it is not a body of work for the Bill before us but for the Law Reform Commission and the Department of Justice more generally. It needs to be done because it is making it difficult to access the law and to know what it is at any given time, but I am not sure that this legislation is the place for it.

As someone who has needed to be completely agnostic on the two amendments before us, I nonetheless want to make some reference to the important points a number of Deputies have made, including Deputy Howlin on the issue of Dáil reform. He is someone who has contributed significantly to the process of reform. I think we would all consider the introduction in recent years of pre-legislative scrutiny to be one of the most important pillars we have put in place. The respective committees on Dáil reform during the previous Dáil and the current one have recognised that post-legislative scrutiny is essential and we want it to happen because it should exist in a developed and effective parliamentary setting. We also have to face the reality that we will have to radically restructure our working week if we are to find time in the Dáil schedule to do this essential work. The public interest demands that we do it.

I fully agree with most of the comments that have been made. There is significant value in keeping our legislation under review. It is a crucial part of the process in ensuring that the laws we implement will impact and work for citizens as we intend them to. Deputies will be aware of the long history of this Bill, which has been drafted in close consultation with a number of key specific stakeholders, and it took considerable time to arrive at this proposal, one that is workable and legally sound. My concern, which is shared by others, is that mandating a formal review of the legislation after the proposed time could affect the embedding of the legislation and of practices provided for within it. Having said that, there is a one-year report system, although that should not be the only part of the review process. If reforms are needed post enactment on reports under Standing Orders, this should be a matter for the committee, not for legislation. As Deputy Howlin outlined, the Committee on Standing Orders and Dáil Reform is considering this. It is a wider issue that needs to be put on a more structural footing and to apply to all legislation.

I understand where Deputy Pringle is coming from but I will oppose his amendment because this legislation is particularly important and I want there to be flexibility. I want to ensure that before three years have passed, any problems with the legislation can be addressed, reviewed and amended, but putting a rigid provision in primary law may create a difficulty with that. I am satisfied the existing provisions and powers are sufficient without amendment, but I support the Deputy's calls for a more general review, which is needed. As Deputy Carroll MacNeill outlined, we should consider not just the review of legislation but also how we develop legislation, table amendments and pass legislation through the House. All of this could be examined through the Committee on Standing Orders and Dáil Reform.

I acknowledge the Minister's comments. What she outlined in regard to the review of legislation needs to happen, but it will not happen today, tomorrow, next week, next month or even in six months. It might happen in a year's time. That is the reality. The legislation before us is very important and, if enacted properly and in full, will have a very significant impact on how people get justice and so on. It is well within the remit of the Department of Justice to review that within the three-year period.

I have much respect for the Minister but I do not think she actually believes the arguments she is putting up against the amendment. They do not make sense. She indicated it would be okay to provide for a review in 12 months but not in three years because a period of three years might delay the implementation of the Bill and how its practices take effect. The three-year period is intended to ensure that the review works and that, if problems arise, they will be dealt with and sorted out. That is it.

As was mentioned by other Deputies, the Children Act 2001 is being amended now, 20-odd years later. We do not want such a situation to happen again. My great fear is that the 12-month review provision will miss an awful lot of issues and we could be in the same situation again 15 or 20 years down the road. Obviously, I will not be debating it, but someone else will be looking to review it. We can avoid that by having a proper review system. There has to be such a provision in this legislation because if it is anywhere else, it will not happen quickly enough. We need to do the other work as well.

I always listen carefully to Deputy Carroll MacNeill because she has great legal experience to bring to our debates, but it is a fact that we as an Oireachtas do not have a real focus on legislation once it has been enacted. We are the legislators; it is not somebody else's job. The statute law revision programme, which she referred to, was an ad hoc process I instituted at the request of the now Mr. Justice Humphreys. It was done on an ad hoc basis with the co-operation of the then Attorney General to get rid of swathes of defunct law, but it should be a normal process embedded in our systems.

I know from the most recent Private Member's Bill I introduced, which thankfully has become law, that although one might present matters in simple language that is readable to most people, when it goes to Government it is put into legalese that is much more impenetrable. We need to reform that. The Minister and I have had this discussion. Law should be readable by everyone, not only by an elite corps of lawyers. All the issues that have been raised during this debate are important to ensure that we make law accessible, readable, understandable and relevant. Defunct law should be repealed and taken off the Statute Book, and the process of how laws are enacted should be reviewed to ensure they remain pertinent to the current time and do what was intended by the Oireachtas. The amendment will do no damage to the Bill by having it be reviewed in three years' time.

I am disappointed that the Minister is not engaging properly with this reasonable request to ensure good legislation and, more important, to ensure that all legislation that has been passed will be subject to a timely review and timely reports. A period of one year is certainly not enough. All legislation must be accessible and must deal with what it was intended to deal with. Any unintended consequences should be erased and amended, without waiting 20 years to do it. I reiterate that that is justice delayed and justice denied. There are other Deputies with much more expertise in legal matters than I have because of their legal backgrounds. Some legislation that is passed is gobbledegook and no ordinary person could read it without some legal interpretation. It makes the law very unfavourably disposed against ordinary people who try to get justice in the courts in a plethora of areas.

I am disappointed that the Minister will not accept the amendment but I will not delay the debate any further. I will support Deputy Pringle's amendment.

I wish the Minister well over the next six months. I also wish the Minister, Deputy Humphreys, the best. I just got the despatch letting me know that Deputy Humphreys is taking over. I do not know if she will be keeping her current responsibilities as well because the position of Minister for Justice is onerous and there is a lot of work to be done in that area. I wish her very well and Godspeed.

I will just make a couple of quick points. Deputy Howlin is absolutely right about the statute law revision project. The work of Alma Clissman in the Law Reform Commission must also be noted. The commission has restated the law correctly and brought it up to date. There is a way to go even further. The law is presented but one can see all the amendments which have been made, these being colour-coded. This was done in England and Wales. There are also links to the Acts under which these amendments were made and to the statutory instruments. We are beginning that work now. The next step is to provide links to court judgments.

With regard to what Deputy Mattie McGrath said about the review and the Children (Amendment) Bill 2020, I am not sure that we would have caught this issue. The issue came to light in a hard case in which the director took a particular position. I do not know that, in reviewing the Bill, I would have caught that practical problem which I could not have foreseen when the Bill was being drafted and going through the House. Equally, I do not believe I would have had the insight to be able to catch that issue as part of a review process. The court, however, did and the Oireachtas is fixing the issue in question, as is appropriate. We will talk about that later.

There are other review mechanisms. I have done work in the area of judicial appointments. I have constantly made the point that, although the Act establishing the Judicial Appointments Advisory Board was enacted in 1995, the Oireachtas committee did not take the opportunity to review the board's operation until 2016 and 2017. The board had never really operated as laid out in the Act. In fact, major changes had been made with no recourse to the Oireachtas. It operated completely differently from the way envisaged in the legislation and this was not even reported to the Oireachtas, which originally enacted the legislation.

These errors can go everywhere. I recall a judgment of the High Court in 2009 based on an application made under the Prevention of Electoral Abuses Act 1923 in respect of an incident relating to a politician. A court order was made on foot of this application but the section under which it was made had actually been repealed in the Electoral Act 1963. In that case, everybody got it wrong, including the judge, the lawyers and everyone else. It caused a whole new set of problems for all of the people involved. It just goes to show how badly the law had been presented that an error of that kind could be made in that court.

I stress that I agree with all Deputies in this House on the need to review the way in which legislation is monitored, reviewed and managed after its enactment. Until that is done, however, it would be inappropriate to specify that a review be carried out after three years, as this amendment seeks to do. The example of the Children's Act 2001 has been used. If that Bill had been reviewed after three years, I am not sure that the issue which has suddenly arisen in the last few months would have been identified. It is important that there be flexibility as this law is embedded. I appreciate that we do not have jury trials at the moment as a result of level 5 restrictions. We hope things will start moving as quickly as possible this year. Flexibility is required to allow us to monitor, adapt and change legislation when necessary, rather than through a specific review after three years. These are the concerns I have with specific regard to this legislation. It will not be fully embedded after three years. The impression might be given that these changes are temporary or that they will go away if one waits long enough. We need to continue to apply flexibility, particularly with regard to this legislation, which is important and which will be monitored and reviewed from the moment it is enacted. I fully agree there is a need for the Committee on Standing Orders and Dáil Reform to look at the general issue of post-enactment reviews of how legislation is being implemented and whether it is working. I fully support movement in that direction.

Amendment put:
The Dáil divided: Tá, 54; Níl, 81; Staon, 0.

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

Níl

  • Berry, Cathal.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Carroll MacNeill, Jennifer.
  • Chambers, Jack.
  • Collins, Niall.
  • Costello, Patrick.
  • Cowen, Barry.
  • Creed, Michael.
  • 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.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Matthews, Steven.
  • McAuliffe, Paul.
  • McConalogue, Charlie.
  • McEntee, Helen.
  • McGrath, Michael.
  • 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 Catherine Connolly and Thomas Pringle; Níl, Deputies Brendan Griffin and Jack Chambers.
Amendment declared lost.
Bill received for final consideration and passed.