Seanad Éireann debate -
Wednesday, 14 May 1986

Vol. 112 No. 10

Courts Bill, 1984: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Durcan

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?

Mr. Fitzsimons

It is a mistake.

Mr. Durcan

A simple mistake as my friend, Senator Fitzsimons says. I have the utmost confidence in the great majority of our district justices and I, as a practitioner, worked under many of them and would like to pay tribute to the tremendous number of working hours they put in and the reason they exercise. We all know that those qualities do not belong to all men or to all district justices. If one listens to the "Gay Byrne Hour" or to some of these other flippant radio programmes one gets the impression that there are district justices that one would prefer not to be subject to in the courts of our land. My concern is that at the annual Brewster sessions, as they are called in the neighbouring island, at the annual licensing court a renewal application may come up; we may have an unreasonable district justice — there are one or two of them abroad — and we may suddenly find that our licence is forfeited and we are in tremendous trouble.

I would like to say to the Minister, let us be enlightened and strike a new balance in relation to forfeiture and introduce a discretionary power to remove the licensing capacity of a publican for a period of a month or two months in the event of an offence being committed. Certainly, if false or misleading information is given, this is not the appropriate remedy which is to disqualify the publican from holding a licence for the period I have mentioned. I have made the important point I wanted to make on that section. It is one that I am concerned about and one with which I will deal in depth on Committee Stage.

I welcome section 5 of the Bill which is an amendment of the Criminal Procedure Act, 1967. It is a sensible section and it is one that can certainly prevent a matter being dragged out for an inordinate period due to unfortunate circumstances. I do not think any complaints can be made by the defendant in so far as this new section should operate.

These are the essential points I want to make in relation to this Bill. I welcome the Bill and any move which will simplify the procedure we have for the enforcement of court orders. However, the Bill does not go far enough. It tackles necessary amendments to the enforcement of court orders legislation but it does not in any way examine the other methods of enforcement of court orders.

I welcome the Bill in so far as if simplifies the system for the renewal of publicans' licences. There are aspects of that particular section which require critical examination and I will be addressing myself to them again on Committee Stage.

I should like to say to the Minister, let us produce tidy legislation and let us turn section 2 and section 3 round about. I welcome the other sections of the Bill. I hope that the remaining year-and-a-half of this Government will see other courts Bills which will amend and simplify our current District Court procedures.

Mr. Fitzsimons

My contribution will be very brief because this is a specialised area of particular interest to lawyers. My comments will be simple and from the layman's point of view. Some Bills coming before this House generate a heated reaction while others get a rather cold response. I could describe my reaction to this Bill as lukewarm because it seems rather insignificant.

There are very many people who believe we have too much law in this country and too little justice. While I realise that it is very easy to generalise and be smart in this way, nevertheless, it seems unfortunate that the law is not synonymous with justice.

This Bill is short. It comprises seven sections. It is dated 1984 and came before the other House on Second Stage in May 1985 and so cannot be regarded as urgent. It is non-contentious. In so far as I have spoken of the necessity for this Bill, it is very welcome to all the parties. It has been stated that it is the start of reform. I wonder why a start was made in this rather insignificant area. I realise that a start must be made somewhere. There is a great necessity for reform. At some period of my life I worked as a clerk in the county council office attached to the courthouse in Kells and I had an opportunity of looking through some of the old Acts. Some of them seemed to me to be out of date. There was one particular Act prohibiting kite-flying. I would like to remark in passing that if kite-flying were prohibited, a number of people might also be inhibited. However, there were many of those Acts that no longer have any relevance.

I understand that the significance of this Bill is that for some reason it is necessary to have it passed before completing the District Court rules. I have looked through the contributions from the other House. I listened attentively here and there has been no explanation or no reference in detail to the extent of these District Court rules. An updating of those rules if there are any is most essential. In the not-too-distant past, we had a situation with one particular district justice — and I refer to this merely in passing — who made many bizarre decisions. Rules are necessary in order to formalise procedure. There must be efficiency in that area. On one occasion a solicitor representing a client in court was found in contempt by the same district justice and there an instant fine of £50 was imposed on that man. The legal profession took up that case and sorted out the problem. There would be very many people going before courts who would not have the back-up of a legal profession and for whom that would be a very unenviable situation.

I should like to ask the Minister if the District Court rules envisaged would cater for problems like that. Will they prohibit that kind of situation arising again? If they do, I certainly would welcome the rules. There must be uniformity with the rules. That kind of autonomous, and peremptory and summary conviction should be prohibited totally. I would hope that the District Court rules envisaged will bring an end to that kind of conduct which in my view does nothing for the courts.

This is really a technical Bill for lawyers but at the same time the law is for the people and my reaction to it is, I hope, the reaction of an ordinary individual and in that sense I believe that everybody has something to contribute and some input to make which might be taken into account. Reform in this area is important. The language of Bills, as I have said on many occasions could bear some improvement. I know it is difficult to draft Bills but in some ways modern Bills seem to use outdated phrases and outdated words. I think they could be simplified. I mentioned before an old lady who was the proprietor of a public house in my youth and she had a phrase: "Plain words make the most ornamental sentences." I think that in many of those Bills plan words would help. I cannot see any reason why plain and simple words are not used.

Could I refer in passing to the dress of the legal profession, not in the district courts but in the higher courts, although I am sure the same court rules apply? It seems strange to retain that old form of dress; I know it is retained in religion too, but there it has some mystical significance. I fail to see what significance it has in court. I also feel that many of the courthouses are unsuitable and perhaps there could be some modernisation there, for example, with regard to closed circuit television. Many of the courts I know have various kinds of problems. That is an area where something could be done.

There are three objectives in this Bill. The first is to expedite the collection process regarding judgmental debts. The second is to alter the penalty structures that may be imposed in the District Court in default of payment of a fine and associated costs. It reduces the maximum period of one year to 90 days and reductions are of much the same order for lesser periods. Although this has been welcomed, and I see no reason why it should not be welcomed, this is a sweeping reduction. I wonder what sums remain unpaid in this regard and indeed will this do anything to ensure that the sums will be paid in future.

Third, the Bill attempts to improve the efficiency of the licensing applications procedure for publicans. This is one aspect of it that I would welcome. I see no reason why publicans' licences could not be renewed at post offices or Garda barracks or in some such way if there is no objection. There is provision in the Bill where there are objections but in the ordinary way, where there is no objection, it seems to me that it is only a matter of form and to put it through such formalised channels seems to me to be totally unnecessary.

With regard to judgmental debts, I believe that these build up in a time of recession and I feel it is important that simplification would not induce creditors to be less discerning due to the time factor.

The section which deals with the revision of imprisonment periods for default of payment of fine, of costs on summary conviction, seems to criminalise the situation and I am not sure that prison is the answer. It has been suggested by others that community work would be more appropriate and I would subscribe to this view.

Section 4 deals with the grant of renewal of intoxicating licences without court certificates. It refers to the part the Revenue Commissioners would have to play and I too share the concern that others have expressed in regard to the power of the Revenue Commissioners possibly making it difficult to renew a licence where the moneys owed were not paid up. With regard to the necessity to go through the court procedure where structural alterations have taken place I know that there are very clear guidelines about maps presented in court in connection with licensing laws. In every case where there is a structural alteration it might not be necessary to prepare a new map, for example in a situation where the licensing area would not be extended and where structural alterations might possibly involve changes in the actual structure rather than the layout of a premises.

I see no reason why in that situation it should be necessary to go before the court because alterations of that kind would have been processed through the planning authority and the suitability of the design would have been taken into account in granting planning permission. From that point of view, and indeed regarding the very strict rules for fire escapes and fire regulations particularly having regard to the proposed building regulations which are coming into effect very soon — with regard to all these I would hope that there would be an exemption for the premises which did not apply for an increased licensing area. Perhaps the Minister would refer to that.

I believe that most of the changes contemplated in this Bill are already in effect in the Dublin District Court. While I have to some extent been critical of the Bill as a worthwhile start to reform, nevertheless I feel that time spent in discussing the Bill itself is not wasted.

In regard to the Law Reform Commission, I wonder is there not some suggestion as to what areas of priority should be taken in connection with this type of reform rather than some kind of ad hoc start? I feel that it would be more appropriate and far more important to repeal and update the licensing laws than the simple procedure of renewing a licence. There was an article in the Garda Review for March this year by Garda Mathias Burke dealing with the licensing laws and I will quote a few sentences which will bear out the point I am trying to make. He states:

The law as it currently stands, in regard to licensed premised is an ass.

Further on he states:

The problem with the liquour licensing laws, as they are in operation in this country is that they were never made for present day conditions.

Later he states:

These laws have evolved over the past century and have largely outgrown their usefulness.

The scope of an essay of this kind does not allow for an in-depth study of the licensing laws. A quick glance however, will show that these laws and the penalties for a breach of the laws, remain largely unchanged since the turn of the century.

This is stated by a garda in a very professional and what I find a very helpful magazine. Here I feel is the area where a start could have been made.

Finally, I would refer to the point raised by Senator Durcan regarding the forfeiture of a licence. I think it is a very harsh situation to lose a licence at that level through information that might not be deliberately intended to mislead. That is wrong. I feel that some amendment should be made with regard to this section because by and large publicans have a very difficult role to play; by and large they are very decent, responsible people. The drinkers have a responsibility as regards behaviour in this whole area. As far as the publicans are concerned and in the whole area of losing a licence it is important that this should be cleared up and that a situation could not arise where the Revenue Commissioners might be responsible, on account of inaccurate information, for a publican losing his licence. With those reservations I welcome the Bill.

Mr. O'Leary

I should like to refer briefly to a number of matters that are in the Bill and one or two matters that are not in the Bill and that I feel could usefully be put into a Bill of this kind. The Bill, as the House will know, is a Courts Bill which deals with variations in the powers of courts which are felt to be appropriate. It is instructive to read the Long Title of the Bill which is:

An Act to amend and extend the Courts of Justice Acts, 1924 to 1961, and the Courts (Supplemental Provisions) Acts, 1961 to 1983, and to provide for other matters relating to the courts.

I would further like to refer to the Explanatory Memorandum which has been circulated with the Bill and which is quite useful in indicating in a readable form the effects of the many technical provisions which are included in the legislation. At paragraph 1 of the Explanatory Memorandum it states that the Bill proposes certain amendments to the law designed to simplify procedures in the District Court in relation to a number of matters. It then goes on to describe what those matters are. What I have to say is entirely relevant to that in that what I feel is missing from the Bill is procedures which are essential to the District Court in the carrying out of its duties under this legislation and other Courts legislation and under Acts which have been enacted from time to time by this House.

In general I would like to say that I welcome the legislation. I think it is right and the simplification of the procedures concerning the examination of debtors will be welcomed by all those who are engaged in a very difficult task of trying to enforce payment on people who use, or indeed abuse, the court system for the purpose of avoiding or delaying making proper payments of sums due by them.

I would like to refer briefly to the contents of section 2 which I think have already been referred to by Senator Durcan. I would not be as pessimistic as Senator Durcan with regard to his interpretation of section 2. I do not think it limits the courts to a mandatory term of imprisonment as he outlined. Subsection (1) of section 2 clearly say that there are terms of imprisonment "not exceeding ..." In my opinion, in those circumstances it is quite open to the district justice to vary them downwards. Of course he obviously cannot vary them upwards. I do not think they are mandatory sentences in any sense. In relation to that aspect of the problem which was referred to by Senator Durcan the Minister will probably be able to satisfy us, or satisfy me, that the matter is already adequately covered by the legislation as proposed.

I would also like to welcome the clarification of the Enforcement of Court Orders Act, 1940, and to welcome the provisions which are made in respect of the grant of renewal of intoxicating liquor licences without the necessity of court certificates. That is right and proper. It is appropriate that these procedures which are in the overwhelming number of cases non-controversial should go through with the minimum of court time involvement as I feel that such court time is more usefully spent in examination of the really contentious issues which, of course, of necessity come before the courts on a daily basis. There is no court in the land that needs more streamlining than the District Court, not because it is an inefficient court but primarily because it is an efficient court and because it is the court to which the overwhelming number of our citizens have to look for redress and to which the State itself has to look for redress in the overwhelming majority of criminal cases. The easing of the work load of the District Court is to the benefit of the community at large in so far as the granting of the renewal of intoxicating liquor licences without court certificates is concerned, I feel that it is a positive step and one which we should welcome.

The use of the Revenue Commissioners for this purpose is entirely justified even though I have a great natural suspicion of non-court procedures. Where things are not contested I feel that it is only right and proper that they go through without the necessity of ensuring that each and every pub makes a personal or representative appearance in court on an annual basis.

The proposal in section 5 which deals with the Criminal Procedure Act, 1967, and the problem that arises when a district justice is ill on the preliminary examination of an indictable offence is one which I share and support. It is a sensible amendment of the position. At Second Stage it is only right for me to say that there is a great opportunity being lost in the enactment of this legislation, relating as it does to District Courts and by and large to the District Court procedure in not overcoming a problem which has serious consequences both in respect of the cost of litigation to litigants and to the State and also has serious consequences for practitioners in the area. The legislation to which I refer has nearly all been referred to or amended in some way by the Courts Bill itself or is proposed to be amended by the Courts Bill.

In order to explain to the House what the problem is I would like to refer briefly to the fact that the District Court power to commit a person or power to act in the case of contempt is governed by an Act which is referred to in this legislation as the Petty Sessions (Ireland) Act, 1851. It deals with the problem of how the District Court protects itself against a person who is in contempt of an order of the District Court. For the reason that District Courts are less formal than other courts and also because they are courts of summary jurisdiction, section 9 of the Petty Sessions (Ireland) Act, 1851 limits the power of the court to act against those in contempt to those present in the court at the time. If one were to go into a District Court and start shouting and roaring at the district justice one would find oneself in prison for contempt of court. If one displays his contempt by ignoring a decision of the District Court, a person cannot be held in contempt of the District Court unless the particular enactment contains within itself a provision whereby that contempt can be remedied.

A problem has arisen in the family law area relative to the District Court and its powers. The Family Law (Protection) of Spouses and Children) Act contains effective procedures for ensuring that spouses and their children are protected by barring orders. Barring orders are now primarily creatures of the District Court. Within that Act there is a procedure whereby the District Court can enforce its orders because the District Court, being a creature of statute, does not have the same inherent powers to deal with contempt as the Circuit or High Court have. The Circuit and High Courts can, without any statutory provision, commit a person for contempt regardless of whether the contempt is actually physically in the presence of the court.

Mr. Fitzsimons

How did it happen earlier this year that a solicitor was fined £50 for contempt?

Mr. O'Leary

It was in the court. You can commit contempt in the face of the court. When a person is present in the District Court the court can take action. If a person is not present in court, the court cannot take action unless there is a specific procedure in a case in which the person is involved.

Mr. Fitzsimons

Does that not seem wrong?

Mr. O'Leary

I will answer afterwards all questions the Senator may ask.

An Leas-Chathaoirleach

Senator O'Leary on Committee Stage.

Mr. O'Leary

I have an important point to put forward. The District Court cannot act except where it is empowered by statute to act. The general power is contained in section 9 of the Petty Sessions (Ireland) Act, 1851. Additional powers are given from time to time by specific Acts. For example, the Family Law (Protection of Spouses and Children) Act contains such provision. There is no problem about the enforcement of orders made by the District Court under that Act. Similarly, where the Family Law (Maintenance of Spouses and Children) Act, 1976 is concerned that also contains a provision whereby spouses and children can be maintained. These provisions can be enforced because, within the legislation itself, the District Court is empowered to so act.

The problem arises with regard to the Guardianship of Infants' Act, 1964 which was originally an Act designed for the High and the Circuit Courts. Within that Act there was a definition of the "court." That definition was that "the court" for this Act shall mean the High Court or the Circuit Court. In the Courts Act, 1981 the powers with regard to custody and access were remitted from the High Court and the Circuit Court to the District Court. The District Court was given the power to make access orders, custody orders and various other orders. Unfortunately, when that was done the Guardianship of Infants Act was not amended. The Courts Act 1981 did not contain a provision which would enable the District Court to enforce its orders concerning custody or access.

The result of that is that a person who is in defiance of a District Court order relative to custody or access cannot be called to book by the District Court. Where a person is faced with the problem of taking proceedings in a matrimonial matter, which are partly maintenance, partly protection of the spouse and which are partly custody, all the proceedings can be taken properly in the District Court and all the proper orders can be made in the District Court. What cannot be done in the District Court is that it cannot be enforced. Only two of those three can be enforced.

With regard to custody and access, there is no system whereby the order of the District Court can be enforced. That means if there is a troublesome respondent in such a case two actions have to be taken relative to the one series of events and relative to the one application. An application must be taken in the District Court because you will not be allowed take it in the Circuit Court relative to maintenance and relative to protection of the spouse. An action must be taken on the same facts in the Circuit Court with regard to custody or there will not be an effective series of orders which will not only deal with the maintenance of the spouse and also deal with the protection of the spouse but will deal with the actual custody and access. The Department of Justice are aware of this problem. Practitioners in the family law area also know the problems exist.

I would ask the Minister to consider, before Committee Stage and because the Bill is nearing enactment, introducing an amendment which would effectively bring about a situation intended by the Oireachtas and would enable the District Court to effectively make orders relative to access and custody under the provisions of the Guardianship of Infants Act, 1964. Such an amendment would have little difficulty in passing in this House. The trouble in going back to the Dáil with that amendment would be more than compensated for by a specific piece of amending legislation which would not then be required. The intention is that there would be specific amending legislation. Because the Bill covers the areas I have referred to it is an ideal vehicle for the changing and improving of the law and closing of this loophole. It was never intended otherwise than that these matters would all be dealt with as a result of one application to one court with considerable savings in terms of cost to the taxpayer and in terms of personal trauma to both spouses and to the children involved. I would ask the Minister in considering the various problems that other Members have brought to their attention concerning this Bill to consider also the problem I have mentioned and to see whether as a result of that an amendment can be made which would enable this lacuna to be corrected.

I hope we can get a positive response from the Minister on Committee Stage and that he would put down an amendment. In any event so as to encourage the Minister to do so, I will be putting down an amendment of my own which the Minister will be relieved to know I will be very pleased to withdraw to make way for the amendment which the Minister will put down as a result of the case I have made here today.

Mr. Howard

My contribution on this Bill will be rather short. I want to confine myself mainly to the provisions in section 4 which concern the renewal of publicans' licences. I welcome the simplification of the procedures which will now eliminate the necessity of a publican having to appear in the District Court and obtain a certificate from that court as to his suitability and fitness as an individual and the suitability and fitness of his premises.

There are already licences to publicans under the terms of this measure that apply directly to the Revenue Commissioners unless there is an objection by the Garda or other qualified people to the renewal of the licence and then that renewal will automatically go through on application to the Revenue Commissioners. There is a provision there that should there be an objection to the conduct of the premises and the conduct of the individual as proprietor of the premises, that objection can be taken to the annual licensing session in September. In that case the applicant has to apply to the court and satisfy the court as to his or her suitability and the suitability of the premises.

There is another provision which I also welcome, that is the substitution of subsection 3 of section 3 of the Registration of Clubs (Ireland) Act, 1904. The effect of this will be to ensure that there is a common renewal date for the certificate made available to clubs which enables them to supply drink to their members on their premises.

The situation that has prevailed in that field up to now has been unsatisfactory in so far as the renewal date of this certificate, which is not a licence — it is actually a certificate — has varied throughout the year. It is largely related to the time of the year in which that particular club applied for its initial registration. Therefore, in that aspect of the Bill in so far as it deals with the licensed trade, I welcome the simplification of procedures in the annual renewal of publicans' licences. I strongly welcome the imposition of the enactment of a common renewal date for the registration of clubs.

There are one or two other comments I want to make in relation to subsections 3 and 4. I notice that this peculiar penalty of forfeiture of licence is being preserved in this legislation. I also notice that in the First Schedule to the Bill no more than 11 liquor licensing Acts are referred to. I am disappointed that the Minister did not find it possible to look at this question of the forfeiture of licences as applied at present and avail of the opportunity presented by this Bill to eliminate this source of injustice.

I want to make a few general observations on this section. I want to put it on the record of the House the situation that I or any publican are confronted with as the legislation now stands in relation to the forfeiture of licences. If I am found to have people on my premises at 11.45 p.m. I can lose my investment, my livelihood and the value of my premises. That is the sort of penalty that is provided for within the licensing code. While the argument might be made that this point is not so relevant to this Bill, it is in the sense of this question of forfeiture of licence.

I know of no other penalty in which a person convicted of a crime no matter how serious it is, having paid his debt to society either by fine or jail sentence is not permitted by the laws of the State to resume his legitimate business. Within the trade that I am involved in that can never happen. If one is convicted and loses one's licence through forfeiture, one can never again hold a licence and the premises to which it applied can never again be licensed. I want the Minister to clarify as to whether that position will prevail should a licence be forfeited under this section.

I want to point out to the Minister that a court may order the forfeiture of a publican's licence should false or misleading information be provided to the Revenue Commissioners in a person's application for the licence. Therefore, we will need to have clarified what amounts to false and misleading information. That can come and that is important. But what is far more important is the penalty and the effect of the penalty that can arise from a supposed supplying of that false and misleading information. Therefore, if I, by oversight, fail to provide some piece of information to the Revenue Commissioners and a court should subsequently hold that that was false and misleading information on my part, and because I infringed the provision in this section of the Act, I deserved the penalty prescribed in the Act, that is the fortfeiture of my licence.

It could be a very simple matter on which this could happen. The points I made earlier in relation to the forfeiture of a licence under other circumstances can only occur when the court is satisfied that I have transgressed the law in four separate instances over a period of time or most significantly since last August as a result of a Supreme Court judgment, all on the one occasion. In this provision I need only do it once and by way of oversight. If I fail to convince the court that it was by way of oversight, then I lose my licence and it is forfeited.

Could the Minister tell me if forfeiture in these circumstances is the same as forfeiture in the other circumstances? If it is, I want to make the point that this is a penalty that is extremely severe and savage. Having failed to satisfy the court that it was an oversight, they prescribe that I must be convicted of this offence. Therefore, my licence must be forfeited. I can never again be licensed to sell alcohol. I can never again operate as a legitimate publican. My business and investment of 20 years is rendered useless and the premises to which that licence applies can never again be licensed as a public house.

Is the Minister conscious of the implications of that provision? It is something that I cannot, in fairness to the people who operate the trade, accept in this particular measure. There is in this provision here that the court may order. And at least that is giving a certain discretion to the court which does not apply and which is not available to the court in relation to forfeiture for other offences. There is that discretion here but, nonetheless, the court may decide that the information that I supplied was false and misleading. These terms will have to be clarified. We will have to spell out quite clearly what type of information will be classified as false and misleading and I want to be satisfied that the Minister is conscious that that is the type of penalty that is being imposed on me and my fellow publicans throughout the country because of an oversight in this supply of information.

That is all I want to say on Second Stage. There are two aspects of it in relation to the liquor trade that I welcome — the simplification of the licences and issuing of them by the court, and the common date for the annual renewal of club certificates. I cannot emphasise enough the depth of the reservations I hold in relation to the question of forfeiture of licences. To my knowledge there is no other crime in this country by which for ever a person is deprived of their livelihood and their investment destroyed. In any other circumstances they pay their debt to society by either prison or fine or both. Having disposed of it, they have, as it were, cleansed their spirit and soul and are entitled to return to society and resume their legitimate obligation.

In the case of the publican, once having lost his licence through forfeiture, he is branded for all time. That is the effect of this legislation. In addition to that, the premises concerned may never again hold a licence. Does the Minister feel that the supply of minute detail that might be understood by a court to be false and misleading, is sufficient justification to merit a penalty so savage?

Mr. Cregan

I want to apologise to the House for giving such short notice. Coming from Cork this morning the traffic was very heavy. I apologise for being late. Like Senator Howard, I note with caution the Bill before us. Being a public representative and a publican, I am concerned and upset in regard to the recommendations in the Bill. While I welcome the restructuring of the courts and the structure of the allocation of licences to public houses and hotels, I note also with deep concern the powers given to the relevant authorities who would be issuing the licences. I appreciate that this is the Second Stage of the Bill and I will not go too deep into it. I will be involved in more detail on Committee Stage.

There is a lot of concern throughout the licensed trade as regards this Bill and the powers that may be granted. The word "may" is mentioned in this Bill not more than once or twice but often. I would ask again that, before Committee Stage, it should be noted that there is very deep concern as to whether licences may again be allocated or renewed to the relevant licensee. It is being asked why the Revenue Commissioners should have the authority and why there should be so much commotion as to why licences should be transferred from one area to another.

I should like to put before the Minister that there may be areas where the Revenue Commissioners could have information that would not be relevant to the licence of the premises in question but which would be relevant to other areas of the person or persons or company involved and that, consequently, they might not be inclined to renew the licence. That is a very serious concern and I would appreciate it if it was looked at again so that we do not bring about a situation where the renewal of the licence should not be granted, certainly not a situation where we are dealing with a new area of authority outside the courts. Speaking to many people involved in the business, we find that the general consensus is that at the end of the day one will get the fairest thinking and fair play within the courts. I do not like the idea of saying that they may grant a relevant licence to the premises or the licensee. That is not to my liking and, like other people, I will be speaking against it on Committee Stage. I should like the Minister to let it be noted that there is very serious concern about that area.

Minister of State at the Department of Justice (Mrs. Fennell)

I should like to thank the Senators who contributed to the debate. The Bill is a short, though rather technical one. It is designed to enable revised comprehensive rules for the District Court to be brought into operation. The scope of the Bill is, therefore, limited. Nevertheless, it carries significance in that it will clear a way for the completion of the major undertaking that the preparation of the new rules represents.

I mentioned also that some further drafting work has been found to be necessary in relation to the proposed new rules. This is a matter that is having the active attention of the District Court Rules Committee.

Senator Eoin Ryan questioned the limited scope of the Bill and expressed disappointment that, while a number of important matters require attention in the area of courts legislation, they are not being catered for in this Bill. However, the fact is that there are other matters that are having active attention, although not in this particular Bill, even apart from the Courts Act that was enacted into law this year.

Two other Bills are before the Oireachtas. One concerns the place of juries in personal injuries cases and the other concerns judicial pensions. In addition, I mentioned at an earlier stage of the debate that the Minister for Justice has under examination the question of reducing the level of dependence on imprisonment in cases where a court orders payment of a debt and the debtor is unwilling to pay, although he or she is in a postion to pay, and also in cases where a court imposes a fine and the person concerned is likewise unwilling to pay.

Senator Ryan recommended that the Liquor Licensing Acts should be consolidated. I share his view that such a step is desirable, but I cannot agree that it will be a simple or easy one to achieve. The Liquor Licensing Acts go back to 1833 and before. Their amendment and consolidation will be a major undertaking.

Senator Durcan proposes to put down amendments for Committee Stage and we shall have the opportunity at that point to consider the criticisms that he has raised briefly in relation to sections 1, 2 and 3. He favours the consolidation of the liquor licensing laws particularly in relation to the granting of licences by the District Court. His remarks in this connection will be taken into account in the context of further work on this legislation. He was also concerned about the power given by way of section 4 (4) to the District Court to order forfeiture of liquor licences in certain circumstances. I would make two points in this connection.

First, I am satisfied that a power of this nature is necessary as without it a licensee could continue in what is often a very lucrative trade for up to a full year even where he had deliberately given false information to obtain renewal of a licence. Secondly, I am confident that district justices will not use this power of forfeiture where the applicant does not wilfully mislead the Revenue Commissioners.

I thank Senator Fitzsimons for his contribution but I think it would be too much to hope that District Court rules alone could deal with the main matters he raised. Rules are concerned essentially with procedure and not with substantive law such as the substantive law in contempt of court. The Senator suggested some amendments to the procedures in relation to renewal of liquor licences so as to avoid recourse to the Revenue Commissioners and the District Courts in certain cases. I have noted the comments he has made.

I would like to remind Senators that the procedural change proposed in section 4 is a simple but useful one. It would be inappropriate for me to use this Bill as a vehicle for further changes in the liquor licensing code. That code is complex. Any further changes going beyond the straightforward change now proposed would demand in-depth consideration and careful drafting and would be appropriate for consideration in the context of a more far reaching Liquor Licensing Act.

Finally, Senator Howard referred to section 4 of the Bill and welcomed the simplification of the procedures for which it provides. He referred in particular to section 4 (4) which gives the District Court discretion as to whether to order forfeiture of the licences in certain cases. I would emphasise again that this power given to the District Court is discretionary and I am quite confident that the District Court will not use it where false or misleading information is given inadvertently. That information could be, for example, as to the nature of the licence — it could have been stated, for example, that the licence was an on-licence where in fact it was an off-licence. He can rest assured that the District Court will not use its power in relation to what Senator Howard called "minute details". I have also noted Senator Cregan's remarks in this connection.

Senator O'Leary's contribution largely parallels the comments which were made by Senator Eoin Ryan. What I have already said generally applies in this regard. However, Senator O'Leary raises the question in regard to enforcement of the orders of the District Court in guardianship matters. I can assure him that the difficulty here is one that has been adverted to and is having active attention. He made a very persuasive case about it. While I cannot promise anything absolute I would like to assure him that we will be looking at this matter.

I thank all Senators for their contributions.

Question put and agreed to.

Committee Stage ordered for Wednesday, 21 May 1986.