The Courts Bill, 1984, is a short measure but nevertheless it is important. Legislatively, it amends and simplifies certain District Court procedures principally with regard to the enforcement of court orders and with regard to the renewal of publicans' licences, that is, licences which require in the normal sense a court certificate for their renewal. In so far as this Bill does these things I welcome it.
It is important at the outset to express disappointment that the Government have not tackled in a broader way the problem of the enforcement of court orders. Whereas the Bill deals with one aspect of the enforcement of court orders, the Minister and the Department should address themselves to the broad question of the easy enforcement of court orders. One of the problems for any legal practitioner is that the actual enforcement of a court order, in many cases where the enforcement of a court order is not availed of, can be cumbersome, slow and can be a very technical process. I would hope that the Minister's Department would at an early date set in train an examination of what are in many respects outmoded procedures in relation to the enforcement of court orders. I refer here in particular to the procedures for the registration of judgments on mortgages against property. I think the procedures should be simplified. The view I express in this regard is a view that is shared by the Incorporated Law Society and by various agencies who have an interest in matters of this nature.
Sections 1 and 3 of the Bill deal with certain amendments to the Enforcement of Court Orders Acts. At the outset I find it rather odd that the Bill is set out as it is. I find it odd that section 2 comes between section 1 and section 3. I say that in terms of content not in terms of numerics, but it seems odd that whereas sections 1 and 3 deal specifically with the enforcement of court orders legislation, section 2 deals with an entirely different matter. In terms of legislative tidiness the Bill could be amended at this stage and section 3 could become section 2 and section 2 could become section 3. The Bill is rather clumsily set out as it stands.
Section 1 of the Bill has the effect of inserting a new section 15 into the Enforcement of Court Orders Act 1926. It was the old section that provided for the procedure that is used at present in relation to applications in the District Court for examination orders. The current procedure is that the court must have prima facie evidence of the debt. The court must be satisfied that the debtor resides in the court area and that there are no goods which could be seized. If the court is so satisfied the justice may make an order. What we are now attempting to do is to wipe away that entire procedure. It is interesting that the role of the sheriff which was regarded as absolutely necessary by district courts until recently is no longer regarded as necessary.
When I qualified as a young solicitor not long ago the position was that one could not apply for an examination order unless one's court order was marked "no goods" by the sheriff. The interesting point is that district justices are now waiving that regard. That reflects the whole collapse of the sheriff's office system. I know that the former Minister for Finance announced the establishment of a new sheriff system. His suggestions in that regard were absolutely ridiculous. I am referring to the former Minister for Finance of this Government. I believe that the Government and the Department of Justice should give sufficient funding, manpower and personnel to our county registrars' offices to allow them execute all functions of the sheriff's office existing within their general jurisdiction.
The idea of establishing a new sheriff, purely for the purpose of executing one form of court order, namely, revenue warrants, is ridiculous. I would ask the Minister to re-examine the role of the existing sheriff's office procedure, existing within most county registrars' offices. I would ask that they be given adequate staff to ensure that all aspects of the sheriff's work can be carried out within those offices. I am not merely referring to the enforcement of court orders obtained by private individuals, but court orders obtained by the Revenue. There is within the existing sheriffs' office and the Circuit Court offices sufficient machinery and adequate procedures if the manpower were made available. If there is a commitment by this Government to see that court orders are properly enforced, then there must be a commitment on the part of the Department and on the part of the Department of the Public Service to make the personnel and the manpower available within these offices. It seems ridiculous that we do not do that. We say there is some form of an embargo and on the other hand we establish a new sheriff who is really a revenue sheriff. That is a very unsatisfactory situation.
The new section 15 which is inserted by section 1 of the Bill provides for a simple procedure, that is, that a statutory declaration be made to the effect that a debt is due and the debtor resides in the court area. If a District Court clerk receives such a declaration he will then issue a summons requiring the debtor to attend for an examination. In so far as that is done, I welcome it because it removes one court step from the procedure. It makes it easier for the creditor to have his court order enforced. It removes an amount of work from the office of our District Court clerks and an amount of business from our overburdened district justices. In so far as that is done procedurely, I welcome it.
I am concerned about some of the technicalities of section 1. I will be putting down certain amendments at Committee Stage but I mention the points now so that the Minister will have time to consider them between now and then. I am concerned about section 1 (1) (a) which refers to a creditor person and a debtor person. My worry is that obviously the enforcement of court orders of this procedure can only be used against a human person as far as a debtor is concerned, but are we actually excluding the rights of a creditor company? I feel that the relevant subsection should be looked at.
I am also worried about section 1 (4) which states:
The statement of means shall, not less than one week before the sitting of the District Court at which the examination is to take place, be lodged with the District Court clerk for the District Court Area wherein the debtor's examination is to take place.
I believe that that section should be amended to put a duty on the debtor to serve a copy of the statement of means on the creditor or on the creditor's solicitor. I know that subsection (5) provides that such a copy can be obtained from the District Court clerk's office on payment of the prescribed fee, but how is a creditor to know if a statement of means has been field? Is a creditor, in every one of these cases, to run along to the District Court clerk's office, create confusion in that office in terms of having the file produced and have time wasted in that office to see if a statement of means has been filed? A much simpler procedure would be to impose an obligation on the debtor or on the solicitor to serve a copy of the statement of means on the other side. We do not have pleadings in the District Court in so far as we have pleadings in the Circuit and High Courts, but in so far as we have documents which are served on the other side then the statement of means certainly falls within that category. In so far as you serve a process on somebody which initiates proceedings, the other side gets a copy. The same situation should apply in relation to the statement of means. I believe that the overall effect of this section which is to make the District Court clerk's office more effective and to prevent time being wasted is being removed when you now have creditors running into the District Court clerk's office in the seven days before the application takes place to see if a statement of means has been field.
I am putting down an amendment to deal with that point. I hope the Minister will deal with it in a sympathetic way. I am making my point from experience, knowing what happens in our district courts throughout the country and knowing what happens in our overburdened District Court clerks' offices throughout the country.
There is a logical progression from section 1 to section 3. I think that in this Bill, if the Minister accepts one of my amendments — and I hope more than one of them will be accepted — the sections should be replaced and put in proper order. I do not know how the officials or how the parliamentary draftsman got confused in the setting out of this Bill. I welcome section 3 because it introduces clarity into an area where there was no clarity up to now. Section 3 simply introduces four aspects of clarity in the areas where instalment orders may be varied. I welcome it because I think that the contents of this section have given rise to an amount of talk and discussion.
Section 2 provides for where a district court may impose a term of imprisonment in default of the payment of a fine. I find the section a little puzzling. On the one hand we provide that a court of summary jurisdiction would have a discretion to impose a term of imprisonment in the event of a fine not being paid, and on the other hand we take away that discretion in prescribing the length of imprisonment that may apply. I am not altogether happy with the mandatory aspect of this section.
What I am not happy about is this: one cannot simply judge an order of a district court on the basis of a fine only. There may be very compelling circumstances in the case of drunken driving where a defendant is going to be disqualified from holding a driving licence for a period of 12 months, where the district justice may say: "that is sufficient penalty against you and, therefore, I will impose a minimum fine of £40". Yet, in a serious case of that, the period of imprisonment will be five days in default of payment. On the other hand, in a similar case for a similar offence, where the disqualification is not so effective, the district justice may impose a fine of £500 and somebody can be imprisoned for 90 days. I believe that the discretion which a district justice, as I understand it, had heretofore in relation to terms of imprisonment that would be imposed in the default of the payment of a fine, should not be removed. Section 2 is a dangerous section in that regard.
Furthermore, I would make the point that there are many summary procedures where a fine may be imposed but where consequental orders may follow, for instance, prosecutions under the Fisheries (Consolidation) Act, 1959. Somebody may be prosecuted under one of the Acts that amend the 1959 Act for using a vehicle or a boat as an aid to the commission of an offence. Consequence of conviction there is automatic forfeiture. For a very serious matter, a small fine may be imposed and, therefore, the terms of imprisonment that would follow for default of payment would be minimal. I would ask the Minister to reconsider section 2. I would ask him not to take away the discretion which, as I understood it, our district justices exercised up to now. I would just say that I am unhappy about this section, as it stands.
Section 4 of the Bill is welcome. It is the section which deals with the renewal of intoxicating liquor licences without court certificates. As I understand it, the current situation is that somebody applies to the District Court clerk for renewal. The renewal application comes before the annual licensing court in the month of September, and if the district justice is satisfied that there is no objection to the renewal and if he is satisfied that the fire officer has been served with certification of the application and does not object to renewal, the renewal will automatically be granted. Certainly, the renewal procedure takes up much time within our District Court clerk's offices. It takes up a certain amount of time within our district courts. The procedure now introduced is certainly a welcome procedure.
I am happy also with the caveat that is introduced whereby a court certificate is required in certain circumstances, circumstances where an objection has been field within the prescribed period of time or where a licence has expired, or where a structural alteration is being carried out in relation to the premises. A balance has been struck the right way here, and I welcome this section.
I am unhappy about certain aspects of the section. I should at this stage, record what my unhappinesses are in this regard. I am unhappy, first, that the whole question of the renewal of liquor licences has not been tackled or, indeed, the whole question of the granting of liquor licences has not been tackled. I know that the Oireachtas Joint Committee on Legislation are currently considering a review of the intoxicating liquor code. I know that the Department are actively pursuing this. The problem is this: in the late twenties the Department commissioned an examination of the intoxicating liquor licensing laws. The report was published in 1927 with a supplementary report in 1929. Certain steps were taken on foot of that. A further report was commissioned by the Department in the late fifties and following on that we had the 1960 and 1962 Intoxicating Liquor Acts. In both of these reports there was the observation that nobody can find his way through the intoxicating liquor code other than the most intrepid explorers.
That is increasingly true. The problem is this. Nothing has been done to tackle the whole question of the codification of the intoxicating liquor code. That applies particularly in relation to the granting and the renewal of licences, whereby the anomalous situation exists that certain licences are granted automatically by the excise authorities. Certain licences are granted on the production of District Court certificates, and other licences are granted on the production of Circuit Court certificates. I believe, at the outset, that the entire area of the granting and renewal of liquor licences, in so far as court certificates are required, should be brought into the District Court. It is a ridiculous and an anomalous situation that the original licensing jurisdiction for the granting of new seven-day ordinary publicans' licences should lie with the Circuit Court. The appropriate court in this regard is the District Court. I am sorry that this Bill does not contain a simple provision providing that the jurisdiction currently exercised by the Circuit Court be transferred to the District Court. I make that point because of the whole history of our intoxicating liquor code.
Originally, until 1902, licences were granted by justices sitting in Petty Sessions. The whole basis of the granting of licences at Petty Sessions was that the people who granted or renewed licences were people of standing in the locality. These were the magistrates, the justices. Despite the many reservations we may have about the system then existing, at least these people knew what was happening in the locality. Within the parameters of the 1872 and 1874 Acts they were granted or they refused to grant. In 1902 we decided there were too many intoxicating liquor licences so we put a certain stay on their power. The basic point is that the power was exercised by a court that was absolutely in touch with what was happening in the area. I believe that that power should be restored to the District Court. It is the appropriate court to grant or to refuse, to renew or not to renew a licence.
Having said that, I couple with that the need to simplify the procedures for the issue of the whole plethora of licences to sell various types of liquors. Simplification is sought in that regard. This Bill does not address that particular question. I am certainly disappointed with that aspect.
I am very concerned about section 4 (3) which reads:
Where a renewal of a licence is granted by an officer of the Revenue Commissioners and false or misleading information was given to the Commissioners in support of the application for such grant, the applicant shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £300.
Subsection (4) which follows from that provides that:
Where the applicant is convicted of an offence under subsection (3) of this section or where there was a failure to comply with subsection (11) of this section, the District Court may order that the licence be forfeited.
In other words, the District Court may make an order, where misleading information was given — minimally, misleading information — that the licence be forfeited. The consequence of that is that the house can never again be licensed and the licensee may never again hold a licence. I thought we would be moving towards a situation where the Department of Justice were examining seriously the entire forfeiture procedure in cases where three endorsable offences had been recorded on a licence. It does appear that the mandarins in the Department of Justice are not prepared to accede to the requests that have been made by the Licensed Vintners' Association and other interested bodies in that regard. I think this section is dangerous. Indeed, it may be argued that it is unconstitutional. I wish that somebody would challenge the power of the District Court in this regard. I would ask the Minister to take a very serious look at this section between now and Committee Stage. I certainly will be putting down an amendment on that point generally at Committee Stage.
It is a pity that there is not a little enlightened thinking within the Department so far as the forfeiture of licences is concerned. If a publican errs, if he commits an offence, and the offence is prosecuted, and if he is convicted, then it should be possible for the District Court to disqualify him from holding a publican's licence for a period of 14 days, or for a period of one month, or for a period of two months. Put him out of the shop for a period as we put the drunken driver off the road for a period. To provide that a man's livelihood be taken away is, to my mind, ridiculous as is to provide for giving misleading information in relation to the renewal of a licence. What is misleading information?