Civil Law (Miscellaneous Provisions) Bill 2006: Committee Stage.

There is a typographical error in the Bill as passed by the Dáil. I wish to bring to the attention of Members an error in section 9. On page 13, line 46, the reference to section 8 should read section 9.

SECTION 1.

Amendments Nos. 1, 2, 5, and 12 are related and will be discussed together. Is that agreed? Agreed.

Government amendment No. 1:
In page 10, subsection (4), line 13, to delete "23 and 24” and substitute “27 and 28”.

Does the Minister of State wish to speak on the amendment?

Amendment agreed to.
Government amendment No. 2:
In page 10, lines 21 and 22, to delete subsection (8) and substitute the following:
"(8) The Employment Equality Acts 1998 to 2007 andPart 16 may be cited together as the Employment Equality Acts 1998 to 2008.”.
Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 13, inclusive, agreed to.
SECTION 14.

Amendments Nos. 3 and 4 are related and will be discussed together. Is that agreed? Agreed.

Government amendment No. 3:
In page 16, line 16, after "his" to insert "or her".

These amendments are designed to comply with current drafting practices. The normal form of drafting since the passing of the Interpretation (Amendment) Act 1993 is to try to ensure where possible and appropriate that both sexes rather than the male sex are referred to explicitly.

Amendment agreed to.
Government amendment No. 4:
In page 16, line 41, after "his" to insert "or her".
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 to 17, inclusive, agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

Are amendments being taken in groups?

We are debating the Bill section by section.

Question put and agreed to.
Sections 19 to 22, inclusive, agreed to.
SECTION 23.
Question proposed: "That section 23 stand part of the Bill."

This section is opposed by Senators Alex White, McCarthy, Ryan, Prendergast, Hannigan and Kelly.

It is not clear that the provisions in this section will constitute an improvement to our jurisprudence. The section proposes to repeal the requirement that a District Court judge must keep a note of the evidence before him or her. We do not have a system for universal transcription in the courts, so it is questionable to say the least not to require a formal note of the evidence presented to a judge. The Minister for Justice, Equality and Law Reform has given no rationale for dispensing with the requirement and considerable support was expressed in previous debates for a proposal to retain the requirement.

The Minister made the self-evident point in the other House that an appeal of a District Court judgment is a complete rehearing of a case, so a judge's note is not necessary in that instance. However, it may be necessary in a case stated in a judicial review of a District Court judgment, which is a relatively frequent occurrence, or on the rare occasion of a complaint being made against a District Court judge. For example, an issue may arise before the proposed judicial council. It is not entirely clear why this admittedly ancient provision in the Petty Sessions (Ireland) Act 1851 is to be dispensed with. What is the problem with retaining the requirement that a District Court judge shall keep a note of the evidence before him or her?

The 1851 Act is more often honoured in the breach and, at least since the foundation of the State, it has not in fact been the practice of District Court judges to keep notes or records. An obligation to keep such notes or have stenographers formally record decisions and evidence would impose a significant administrative burden on the District Court.

As a lawyer, Senator Alex White will be aware that an entirely new hearing takes place when an appeal issues to a judgment of the District Court, so the decision of a judge of the lower court is immaterial. Section 14(1) of the Courts Act 1971 provides that in any legal proceedings, regard shall not be had for any record pertaining to a decision of a judge of the District Court in any case of summary jurisdiction. This means that even if a note had been kept of the evidence presented to the court, it could not be used in an appeal.

District Court judges are very busy people. In 2006, for example, 560,155 cases were heard before the District Court. To introduce the entire panoply of recording and minute taking for what a District Court judge may say is, in a sense, pointless because the evidence is reheardde nova in the Circuit Court. I acknowledge the Senator’s argument in respect of disciplinary proceedings against a judge but that is a matter for the court system itself.

The Government is rolling out the digital audio recording system for the Courts Service on a phased basis. The District Court is phase three on this, with the more weighty courts having priority. However, digital audio recording will only assist in one respect, namely, where a prosecution for perjury is taken against a witness. Digital records might be helpful where gardaí discover subsequent to a hearing in a District Court that a witness perjured him or herself.

It is not necessary from an evidential point of view to keep a record of the decisions of District Court judges because appeals are reheard entirely in the Circuit Court. In addition, it would be somewhat vexatious and expensive in administrative terms. The ruminations of District Court judges do not go entirely unrecorded because the media on occasion add to the gaiety of the nation by recounting their views on various issues.

Senator Alex White has made a strong case in regard to this provision. If digital recording is being introduced and the District Court represents phase three of its roll out, a case can be made at that juncture to delete the provision. However, the requirement could provide for a healthy level of discipline given that most aspects of the law are administered in the District Court. It is perhaps premature to delete this provision and notwithstanding the Minister of State's argument that it is complex administratively, an extensive record is not necessary. It would be no harm to retain it until such time as the recording of District Court proceedings is introduced. Serious work is done in the District Court in licensing and other areas and it is appropriate to have some sort of record of judges' decisions. That the requirement may not be observed in all cases is not sufficient reason to remove the provision.

I concur with Senator Regan that the fact the requirement is more honoured in the breach is not sufficient reason to remove it. The Minister might remind District Court judges of the legislative requirement rather than simply abolish it.

I am simply opposing this provision and I am not proposing by way of amendment or otherwise the panoply of technology to which the Minister of State referred. I agree with him on the desirability of having digital audio recordings of court proceedings and welcome its development, but that is not at issue. The requirement is somewhat old-fashioned in that the District Court judge takes a note of the evidence before the court. It is not about the ruminations of a District Justice — to which the Minister of State so aptly referred and which, from time to time, amuse or disturb us — it is about some reliable note being kept of the evidence before the court. Solicitors, counsel and others will sometimes take a note of the evidence. However, the most reliable and impartial note would be that kept by a judge. In such circumstances, I do not see a compelling argument for the removal of the provision. Perhaps the Minister of State could instead reinforce the provision as it stands.

At present, it is entirely at the discretion of a District Court justice to keep his or her personal notes. I am sure some of them keep such notes for the purposes of clarity or, as with anaide memoire, to assist them, particularly in circumstances where cases involving similar matters might arise. The work of the District Court is extremely pressurised and varied. The 1851 obligation was introduced because district court justices were not dealing with such a large volume of cases at that time. I am not sure it would be of assistance to require a District Court justice to act as a stenographer or record-keeper, particularly because matters are revisited in their entirety — without reference to what may or may not have been said in the court of first instance — when they go to the higher court.

If, for some reason, the keeping of notes might prove helpful from the perspective of managing the court system in general, I would, like many people, be open to persuasion on the matter. However, there is no clear reason note-taking would add to the efficiency of the courts in any respect.

We received legal advice from the Attorney General, who noted that in the cases of Frielv. McMenamin 1990 and Hegarty v. Fitzpatrick 1990 the court refused to permit the applicants to have access to the note of the evidence required under section 24 of the Act of 1851 and expressed the opinion that if the current law, de facto, renders irrelevant the note of evidence pursuant to section 24, it might impose too onerous a burden on the District Court to make that section important again. In other words, there have been rulings in certain cases which render redundant the notion — I would not call it a requirement — under the 1851 Act to have notes kept because the provision does not currently operate and has no particular relevance. I do not see what efficiencies would be gained by its reintroduction, other than allowing certain people to request the production of such notes.

I do not see the value of keeping notes such as those to which we are referring. Anyone who visits the District Court will be aware that one is obliged to do a great amount of learning and unlearning when observing its proceedings.

The Minister mentioned a couple of authorities to which he did not previously refer. I will take the opportunity to consider the cases to which he referred and I will revisit the matter on Report Stage.

Question put and agreed to.
Sections 24 to 27, inclusive, agreed to.
SECTION 28.
Government amendment No. 5:
In page 26, line 36, after "2002)" to insert "of the Court Officers Act 1945".
Amendment agreed to.
Section 28, as amended, agreed to.
Sections 29 and 30 agreed to.
SECTION 31.

Amendment No. 6 in the names of Senators Alex White, McCarthy, Ryan, Prendergast, Hannigan and Kelly is out of order as it involves a potential charge on the Revenue.

Amendments Nos. 7 and 8 are cognate and may be taken together by agreement of the House. Is that agreed? Agreed.

Government amendment No. 7:
In page 28, line 3, to delete "as substituted" and substitute "inserted".

These are technical drafting amendments.

Amendment agreed to.
Section 31, as amended, agreed to.
Section 32 agreed to.
SECTION 33.
Government amendment No. 8:
In page 28, line 29, to delete "as substituted" and substitute "inserted".
Amendment agreed to.
Section 33, as amended, agreed to.
NEW SECTIONS.

Amendments Nos. 9, 13, 14 and 18 are related and may be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 9:
In page 28, before section 34, to insert the following new section:
"34.—The Solicitors (Amendment) Act 1960 is amended by the insertion of the following section after section 6:
"6A.—(1) For the avoidance of doubt it is hereby declared that the Society have, and always have had, a power to investigate alleged misconduct by a solicitor.
(2) If subsection (1) would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect.".".

It would be useful if the Minister of State could indicate the motivation behind these amendments.

Each of these amendments relates to the Law Society's powers of investigation into alleged misconduct either by solicitors or by apprentice solicitors.

The Law Society has, for many years, investigated allegations of misconduct by solicitors arising either from complaints made by clients or as a result of its own routine inspections of solicitors' practices. However, there is no express provision in the Solicitors Acts giving to the Law Society the power to investigate misconduct on the part of a solicitor. The Law Society's power to investigate alleged misconduct is implied in various existing provisions, including sections 10 and 14 of the Solicitors (Amendment) Act 1994, which give the society powers, for the purposes of such an investigation, to require the production of documents and to attend at a solicitor's place of business to inspect documents.

Amendment 9 removes any doubt arising from the absence of an express provision by declaring in the new section 6A(1) that, for the avoidance of doubt, the Law Society has, and always had, the power to investigate complaints of misconduct against solicitors. Section 6(2) is a standard provision which is made when existing statutory provisions are being amended for the purpose of the avoidance of doubt and where the removal applies retrospectively.

Amendment 13 clarifies that the Law Society has the power to investigate alleged misconduct by a solicitor whether a complaint was made to it by a client of a solicitor or where the alleged misconduct comes to its attention in the course of carrying out its regulatory functions. Breaches of the Solicitors Acts may come to the attention of the Law Society during routine inspections of solicitors' practices. The purpose of the amendment is, therefore, to formalise the position. By way of example, inquiries under the Law Society's solicitors' accounts regulations may disclose conduct which constitutes a breach of the Solicitors Acts and which warrants full investigation under the Act's disciplinary provisions.

Amendment No. 13, therefore, removes any possible doubt that the Law Society's powers to investigate misconduct extends to complaints generated internally by the society itself, as well as to complaints made to it by clients of solicitors. In other words, it provides clarity and allows the society, where it comes into possession of evidence of what might be construed as malpractice or misconduct, to engage in fulsome investigations.

On amendment No. 14, section 9 of the Solicitors (Amendment) Act 1994 provides for the receipt and investigation by the Law Society of complaints made by clients in respect of excessive charging of fees by solicitors. The section obliges it to take all appropriate steps to resolve complaints by way of agreement between the parties. In the event that a solicitor issues a bill of costs that is excessive but subsequently settles the matter by agreement with the client, there is no statutory power available to the Law Society to treat the solicitor's actions as a case of misconduct. It is necessary to empower the society to continue to investigate a complaint under section 9 and, if justified by the results of this investigation, to proceed with disciplinary sanction against a solicitor for overcharging notwithstanding the fact that the solicitor and client may have resolved the matter by agreement, as I have stated. Otherwise the public interest would not be served by facilitating the frustration of a Law Society investigation by way of the solicitor coming to an agreement with the client, perhaps by a financial settlement.

That is not entirely fanciful, as Senator Regan can imagine, being a practising lawyer himself. The client and solicitor could conspire, with one of the parties doing well financially from it. It would thwart the public interest investigation of an issue where a serious aspect of misconduct occurs.

Section 19 of the Solicitors (Amendment) Act 2002 provides for the extension of the solicitors' disciplinary regime to alleged misconduct on the part of apprentice solicitors. Amendment No. 18 replicates for apprentice solicitors the provisions proposed in amendments Nos. 9 and 13 for solicitors. Section 19 of the 2002 Act commenced on 1 January 2003, hence subsection (2) provides that the amendment will have retrospective effect to that date.

Amendment agreed to.

Amendment No. 17 is related to amendment No. 10 and amendment No. 29 is consequential on it, so all will be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 10:
In page 28, before section 34, to insert the following new section:
"34.—Section 8 (inserted by section 18 of the Solicitors (Amendment) Act 1994 and amended by section 10 of the Solicitors (Amendment) Act 2002) of the Solicitors (Amendment) Act 1960 is amended—
(a) in subsection (1)(a), by the substitution of “the High Court, after consideration of the report and the submissions (if any) made to it by the Society under subsection (1A) of this section” for “the High Court, after consideration of the report”, and
(b) by the insertion of the following subsection after subsection (1):
"(1A) The Society may make submissions to the High Court in relation to—
(a) the opinion of the Disciplinary Tribunal as to the fitness or otherwise of the solicitor to be a member of the solicitors’ profession, having regard to the findings of the Disciplinary Tribunal, and
(b) the recommendations of the Disciplinary Tribunal as to the sanction which in the opinion of the Disciplinary Tribunal should be imposed, having regard to their findings, to any finding of misconduct on the part of the solicitor previously made by them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and to any order made by the Court under the Solicitors Acts 1954 to 2008 in respect of the solicitor.”.”.

The Law Society is required by section 7 of the Solicitors (Amendment) Act 1960 to bring the report of the solicitors' disciplinary tribunal to the High Court in cases where the tribunal has found that there has been misconduct and where the tribunal leaves the question of the sanction to be imposed to be decided by the High Court. Typically this occurs in the more serious cases of misconduct where the question of the solicitor's fitness to continue to practise arises. The amendments clarify that the Law Society is entitled, on bringing a report of the disciplinary tribunal to the High Court in a finding of misconduct against a solicitor — amendment No. 10 — or against an apprentice solicitor as provided for in amendment No. 17, to make submissions to the court on any sanction the court may impose.

The right of the Law Society to address the High Court in such matters is not expressly provided for in the Solicitors Acts, although this has been the practice for many years and is regulated in court rules — Rule 8 of SI 701 of 2004, Rules of the Superior Courts (Solicitors (Amendment) Act 2002). Rule 8 provides that the Law Society may seek such order for sanction as it deems appropriate and reasonable having regard to the findings and recommendations of the disciplinary tribunal.

Recently the High Court considered, as a preliminary point, the right of the Law Society to address the court on the sanction to be imposed in a particular case. The judgment cast doubt on the society's practice of addressing the court on the sanction to be imposed in the absence of an enabling provision, although the court decided that Rule 8 should be applied to the case before it. The purpose of the proposed amendments is to make such an enabling provision and to remove any possible future doubt.

Amendment No. 29 adds the Solicitors (Amendment) Act 2002 to the Long Title of the Bill, consequent on amendments Nos. 17 and 18.

Amendment agreed to.

Amendments Nos. 11 and 15 are related and may be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 11:
In page 28, before section 34, to insert the following new section:
"34.—Section 2 of the Solicitors (Amendment) Act 1994 is amended by the substitution of the following subsection for subsection (2) (inserted by section 12 of the Solicitors (Amendment) Act 2002):
"(2) References in sections 10, 10A (inserted by section 13 of the Solicitors (Amendment) Act 2002), 12 (inserted by section 14 of that Act) and 22 of this Act to complaints made to or received by the Society include references to any complaints made to the Society by the registrar under section 14B of this Act, and those provisions of this Act shall have effect accordingly.".".

These amendments are similar in purpose to amendment No. 13 in that they confirm the Law Society's powers to generate internally complaints against solicitors. The amendments confirm the statutory role of the Registrar of Solicitors in generating internally a complaint of misconduct against a solicitor and extend the definition of misconduct for this purpose to include "any other conduct tending to bring the solicitors' profession into disrepute".

Certain functions have been delegated to the Registrar of Solicitors by the Council of the Law Society. These functions include the power to initiate an investigation under the solicitors' accounts regulations and the power, as a result of a complaint or otherwise, to attend with or without notice at a solicitor's practice to inspect documents. In carrying out these functions, matters may come to the attention of the registrar which merit the commencement of formal disciplinary proceedings.

Section 2(2) of the Solicitors (Amendment) Act 1994, as inserted by section 12 of the Solicitors (Amendment) Act 2002, was intended to give to the registrar the power to make complaints to the society against solicitors for breaches of the Solicitors Acts. However, section 2 is an interpretation provision and is definitional of the term "complaint". As such it does not confer the intended substantive power on the registrar. Amendment No. 15 rectifies this by providing that the registrar may make a complaint to the society alleging a contravention by a solicitor of any provision of the Solicitors Acts or alleging any conduct tending to bring the profession into disrepute. Amendment No. 11 makes a consequential amendment to the definition of a complaint. In effect, it strengthens legally the registrar's position relative to the Law Society on complaints of misconduct.

Amendment agreed to.
SECTION 34.
Government amendment No. 12:
In page 29, line 19, to delete "subsection 8(1)(da)” and substitute “subsection (1)(da)”.
Amendment agreed to.
Section 34, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 13:
In page 29, before section 35, to insert the following new section:
"35.—The Solicitors (Amendment) Act 1994 is amended by the insertion of the following section after section 14:
"14A.—For the avoidance of doubt it is hereby declared that the power of the Society to investigate alleged misconduct by a solicitor may be exercised whether or not the Society receive a complaint in relation to the solicitor.".".
Amendment agreed to.
Government amendment No. 14:
In page 29, before section 35, to insert the following new section:
"35.—The Solicitors (Amendment) Act 1994 is amended by the insertion of the following section after section 14A:
"14B.—Notwithstanding anything in this Part the issue by a solicitor of a bill of costs that is excessive may constitute misconduct.".".
Amendment agreed to.
Government amendment No. 15:
In page 29, before section 35, to insert the following new section:
"35.—The Solicitors (Amendment) Act 1994 is amended by the insertion of the following section after section 14B:
"14C.—The registrar may make a complaint to the Society in relation to a solicitor alleging—
(a) a contravention by the solicitor of any provision of the Solicitors Acts 1954 to 2008 or any order or regulation made thereunder, or
(b) any conduct by the solicitor tending to bring the solicitors’ profession into disrepute.”.”.
Amendment agreed to.
Section 35 agreed to.
NEW SECTIONS.
Government amendment No. 16:
In page 30, before section 36, but in Part 3, to insert the following new section:
"36.—The Solicitors (Amendment) Act 1994 is amended by inserting the following after section 26:
"26A.—(1) Subject to subsections (2) and (3), a contract between a solicitor and a client of the solicitor that any description of civil liability incurred—
(a) by the solicitor arising from his or her practice as a solicitor in respect of the provision of legal services to the client be limited to an amount specified or referred to in the contract, or
(b) by a partner, clerk or servant or former partner, clerk or servant of the solicitor arising from that solicitor’s practice as a solicitor in respect of the provision of legal services to the client be limited to an amount specified or referred to in the contract, shall be binding on and enforceable by—
(i) if paragraph (a) is applicable, the solicitor and the client, and
(ii) if paragraph (b) is applicable, the partner, clerk or servant or former partner, clerk or servant of the solicitor and the client.
(2) Nothing in subsection (1) shall affect the operation of—
(a) section 40 (as amended by section 31 of the Restrictive Practices (Amendment) Act 1987) of the Sale of Goods and Supply of Services Act 1980, or
(b) Regulation 6 of the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. No. 27 of 1995).
(3) The amount referred to in subsection (1) in respect of a description of civil liability the subject of the contract concerned shall be not less than the minimum level of cover, as specified from time to time in regulations under paragraph (b) of section 26(4), for indemnity against losses arising from those classes of claims which fall within that description of civil liability and, accordingly, any such amount which is less than such minimum level of cover shall, by virtue of this subsection, be deemed to be increased to such minimum level of cover, and such contract shall be binding and enforceable accordingly.
(4) Section 7 of the Attorneys and Solicitors Act 1870 is repealed on the commencement ofsection 36 of the Civil Law (Miscellaneous Provisions) Act 2008.”.”.

Solicitors carry on business either as sole traders with unlimited civil liability or as partnerships with collective and individual unlimited civil liability. The provisions of section 7 of the Attorneys and Solicitors Act 1870 restrain a solicitor in seeking to limit his or her liability in a contract agreed with a client. This puts Irish solicitors at a competitive disadvantage in commercial law against UK law firms who may limit their liability by contract with clients consequent on the repeal of the 1870 Act in the UK some years ago.

UK law firms who are active in Ireland in commercial law matters limit their liability as a matter of routine. The anomalous nature of the current position becomes especially apparent when in substantial projects an Irish firm of solicitors must join with other professional advisers to provide a multidisciplinary team where the other advisers can limit their exposure while the Irish solicitor cannot.

In practice this acts as a disincentive to an Irish firm to organise or lead a consortium of advisers since the primary responsibility for services provided by the consortium will often have to be accepted by the leading firm. Section 26A(1) will update the existing 19th century statutory provisions, which the UK has repealed, to take account of current commercial and competitive realities. The change will bring Irish law into line with current UK law and allow Irish law firms to seek and do business in competition with foreign law firms on equal terms. It will address the anomalous position where an Irish and a UK firm agree a limit on liability which can then be enforced by the UK firm but may not be enforceable by the Irish firm owing to the continued application of the 1870 Act.

Subsection (2) clarifies that the existing consumer protection provisions in the Sale of Goods and Supply of Services Act 1980 and the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 will continue to be available to clients of solicitors in the event that they make a contract which limits their solicitors' liability. In addition, subsection (3) includes a safeguard for the client's protection in the form of a provision preventing the enforcement of such a contract to the extent that it falls below the general statutory minimum amount of professional indemnity cover required of solicitors, which currently stands at €2.5 million, as provided for in SI 122 of 2005 made by the Law Society. This safeguard would, in particular, continue to protect the interests of non-commercial clients of solicitors in areas such as conveyancing.

Amendment agreed to.
Government amendment No. 17:
In page 30, before section 36, but in Part 3, to insert the following new section:
"36.—Section 19 of the Solicitors (Amendment) Act 2002 is amended—
(a) in subsection (3)(d), by the substitution of the following for subparagraph (iv):
"(iv) their opinion as to the fitness of the apprentice, having regard to their finding or findings, to be admitted as a solicitor either at any time or until the apprentice has satisfied the Society or the President of the High Court as to such fitness, and the Society shall bring the report before the Court.",
(b) in subsection (5), by the substitution of “The High Court, after consideration of the report of the Disciplinary Tribunal and the submissions (if any) made to it by the Society under subsection (5A) of this section” for “The High Court, on consideration of the report of the Disciplinary Tribunal”, and
(c) by the insertion of the following subsection after subsection (5):
"(5A) The Society may make submissions to the High Court in relation to the opinion of the Disciplinary Tribunal as to the fitness of the apprentice, having regard to the finding or findings of the Disciplinary Tribunal, to be admitted as a solicitor either at any time or until the apprentice has satisfied the Society or the President of the High Court as to such fitness.".".
Amendment agreed to.
Government amendment No. 18:
In page 30, before section 36, but in Part 3, to insert the following new section:
"36.—(1) The Solicitors (Amendment) Act 2002 is amended by the insertion of the following section after section 19:
"19A.—(1) For the avoidance of doubt it is hereby declared that the Society have a power to investigate alleged misconduct by an apprentice.
(2) The power of the Society referred to in subsection (1) of this section may be exercised whether or not the Society receive a complaint in relation to the apprentice.
(3) If subsection (1) of this section would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect.
(4) In this section ‘misconduct' has the same meaning as it has in section 19 of this Act.".
(2) This section shall be deemed to have come into operation on 1 January 2003.".
Amendment agreed to.
SECTION 36.

I move amendment No. 19:

In page 30, between lines 24 and 25, to insert the following subsection:

"(2) Where a tenant has, on or after the 12th day of December 2007, effected a renunciation as referred to insubsection (1), the tenant shall be deemed not to be entitled to a new lease for a period of 20 years, and any lease for a shorter period effected on foot of such renunciation shall be deemed to be valid.”.

I would be interested to hear the Minister of State's response to this matter because it arises in respect of a particular case that has been brought to our attention. The amendment is designed to ensure renunciations of the right to a new lease, pending the passing of the Bill, would be recognised as valid. Otherwise, some tenants would have their tenancies terminated and hardship might be created. I am keen to hear the Minister of State's response on that and in particular ask him to explain the rationale for removing the words "prior to the commencement of the tenancy" from the section. It may be that his response will be convincing and in those circumstances I will take a view on the amendment we are proposing but I would like to hear from the Minister of State in that regard.

On the same issue, the current provisions in the Landlord and Tenant Acts are designed to provide for renunciation of a long-term lease prior to a lease for offices would be entered into. That provision has worked well and it is intended that it be extended to all commercial lettings, if I understand the motivation for the amendment, but we are deleting the words "prior to entering into a lease". I would welcome an explanation for that change, whether that aspect of it has been thought through and the reason that particular qualification or condition is being deleted.

In effect, this amendment is proposing that a change to the law affecting business tenancies be made retrospective. The proposed change to the Landlord and Tenant (Amendment) Act 1980 contained in the Bill amends sections 17 and 85 of that Act. Section 17 deals with restrictions on right to new tenancy and section 85 covers void contracts. The purpose of these amendments is to enable parties to a business tenancy to contract out of the provisions of Part II of the 1980 Act which covers the right to a new tenancy, provided that the tenant or would-be tenant has received independent legal advice. The provision draws upon section 4 of the Landlord and Tenant (Amendment) Act 1994 and section 191 of the Residential Tenancies Act 2004.

Senator Regan will be interested to know that unlike the provision in the 1994 Act, the ability to contract out is not confined to cases where the renunciation has been completed prior to the commencement of the tenancy. This is a deliberate policy choice since it is intended to facilitate existing business tenants who, in the absence of an ability to renounce their statutory right to a 20-year tenancy, might face eviction as the period of five years, after which the right accrues, draws to a close.

The question of further amending the Landlord and Tenant Act to provide for the opt-out to be retrospective to a specific date is, I take it, an effort to accommodate some whose tenancies are governed by existing legislative provisions but who would like, in effect, to avail of the new provisions in this Bill before those provisions become law. By definition, the existing provisions would have been in force when the original tenancies were entered into; when there was no proposal to change the law in the manner now contained in this Bill; and when there would have been no reasonable expectation that such a change would come about. In other words, tenants in such leases are no worse off now than they were when they entered open-eyed into their tenancy agreements.

A difficulty with this amendment is the somewhat arbitrary nature of the date from which the renunciation would be given retrospective force. Accepting the amendment would privilege some categories of tenant whose tenancies expire on or after the date in question while discriminating against all those whose tenancies expired before that date and who, in consequence, have had to make alternative arrangements in respect of their business activity.

There are good reasons retrospective legislation is resorted to only on very rare occasions. When it is necessary, it is desirable that the rationale be very clear, that adequate notice be given to all parties and that the maximum effort be made to avoid invidious discrimination. In the current case, the focus is on commercial arrangements where the need for legal certainty is especially acute. In my view, that certainty is best served by adhering to the well-established rule that a provision will generally apply only from the date of its commencement. While I understand the motivation underlying the amendment, I cannot accept it.

The Minister of State made a number of fair points in his response. I do not propose to pursue the amendment today. I will reflect on what he has said and may return to it at a later stage.

This aspect must be looked into further and I reserve the right to table an amendment on Report Stage. I accept that the explanation is helpful. Where it is a relieving provision I do not see any problem with retrospective legislation in this connection but it requires more examination and we will deal with it on Report Stage.

Amendment, by leave, withdrawn.
Section 36 agreed to.
Sections 37 to 42, inclusive, agreed to.
NEW SECTION.

Amendments Nos. 20 to 23, inclusive, are related and may be taken together. Is that agreed? Agreed.

Government amendment No. 20:
In page 35, before section 43, but in Part 6, to insert the following new section:
"43.—Section 6 of the Juries Act 1976 is amended by deleting "and under the age of seventy years".".

The purpose of the two Government amendments Nos. 20 and 23 is to remove the upper age limit for eligibility to be called and serve on a jury and, as a consequence, to remove the upper age limit for excusability as of right. Currently, section 6 of the 1976 Act provides that "every citizen aged 18 years or upwards and under the age of 70 years who is entered in a register of Dáil electors" is eligible for jury service; and Part II of Schedule 1 (Persons Excusable as of Right) provides that "persons aged 65 years or upwards and under the age of 70 years" may be excused from jury service.

This amendment, when proposed on Committee Stage in the Dáil, attracted cross-party support. That cross-party support is evidenced again in the Seanad today by the presence of amendment No. 21 in the name of the Labour Party Senators, as an alternative formulation to the Government amendment No. 20. There are technical reasons I prefer the approach in the Government amendment to that in amendment No. 21. We do not need to include the saver for "reasons of infirmity" because that is already amply covered elsewhere in the Juries Act. The Senators might consider withdrawing amendment No. 21 on that basis.

We are all agreed that this change is worthwhile to reflect the increasing role and contribution of older people in society and the fact that the mandatory retirement age has now been raised. The changing demography of our population shows an increasing age profile as more people continue to live longer and healthier lives. Keeping the right of excusal on age grounds will ensure any person over the age of 65 does not lose an existing right and can be excused from service as of right if they so wish. The approach is to make the possibility of jury service available to older people while at the same time ensuring the availability does not impose a burden in any individual case.

On amendment No. 22 in the name of the Labour Party Senators, I thank them for tabling it and am glad to tell them it has the support of the Government. The principle is accepted and I have the assurance of Parliamentary Counsel that it is acceptable from a technical point of view.

Part 1 of the First Schedule to the Juries Act 1976 refers to "a person who because of insufficient capacity to read, deafness or other permanent infirmity is unfit to serve on a jury". As this exclusion is currently the subject of court proceedings it is not appropriate for me to comment except to remind Senators that the law on juries has been included in the Law Reform Commission's recently published Third Programme of Law Reform 2008-2014. I will consider any proposed amendments the Law Reform Commission makes in regarding persons ineligible for jury service and any other matters arising from its detailed consideration of this area of law.

I thank the Minister of State for his response, particularly to amendment No. 22 which deals with what would otherwise have been an anomaly where there would have been differential treatment of coroners juries. In the circumstances of the Minister of State being prepared to accept the amendment we have put forward in that regard, that difficulty has been dealt with. This relates to removing the upper age bar for service on juries, and is a very welcome development. I am happy that the Government has proposed its own amendment. We are pretty much ad idem in terms of how we should proceed in relation to this. I am pleased to note that my party, at a very early stage in this debate, raised the issue of the upper age bar on jury service. While I am not claiming strict ownership of any proposal in this regard, it is fair to say the Labour Party was, if not first, at least very early into the breach in advocating such a change. The age bar offends against the principle of age equality in our society. Very many citizens, 70 and over, are perfectly capable of serving on juries. We have had many practitioners and judges, who were well in excess of 70 and I see no reason members of the public cannot also offer their practical expertise and judgment on juries, which are such a fundamental aspect of the justice system. It is vitally important this change be made. I welcome the fact that we are in agreement across the House on this. I have not heard from Senator Regan, but I believe I know his view and it is that this ought to be effected.

I am open to persuasion on withdrawing amendment No. 21, in circumstances where the Minister of State has assured me that elsewhere in the Juries Act 1976 the question of potential infirmity in respect of jurors is dealt with. I have not had an opportunity to check this, but I am sure that what he tells me is true. In those circumstances, I am prepared to withdraw amendment No. 21, since the fundamental objective of removing the upper age bar for jury service is being effected by these changes.

I thank the Senator for withdrawing his amendment because, in substance, we are addressing all of his concerns, in particular the issue around infirmity. I apologise to the House that I cannot particularly comment on the issue as regards the deaf person who is taking an action in respect of ineligibility to serve as a juror. That matter is before the courts and, as such, it would be invidious of me to comment, given that the State is a defendant in the case.

Amendment agreed to.
Amendment No. 21 not moved.
Sections 43 to 46, inclusive, agreed to.
NEW SECTION.

Amendment No. 22 is in the names of Senators Alex White, Michael McCarthy, Brendan Ryan and Phil Prendergast, and has been already discussed with amendment No. 20.

I move amendment No. 22:

In page 36, before section 47, to insert the following new section:

"47.—Section 31 of the Juries Act 1976 is amended by deleting "and under the age of sixty-five years".".

Amendment agreed to.
Sections 47 to 50, inclusive, agreed to.
NEW SECTION.

Amendment No. 23 is a Government amendment and has been already discussed with amendment No. 20.

Government amendment No. 23:
In page 36, before section 51, to insert the following new section:
"51.—The First Schedule to the Juries Act 1976 is amended—
(a) in Part 1, by substituting—
"Other persons
Persons who have—
(a) an incapacity to read, or
(b) an enduring impairment
such that it is not practicable for them to perform the duties of a juror."
for—
"Incapable persons
"A person who because of insufficient capacity to read, deafness or other permanent infirmity is unfit to serve on a jury.",
and
(b) in Part II, by deleting “and under the age of seventy years”.”.
Amendment agreed to.
Section 51 deleted.
Sections 52 to 57, inclusive, agreed to.
SECTION 58.

Amendments Nos. 24 and 25 are Government amendments, which may be discussed together, by agreement.

Government amendment No. 24:
In page 41, subsection (1), line 25, after "Irish," to insert "as".

These are technical drafting amendments. The first remedies an omission and the second ensures there is a proper new title in both Irish and English for the officeholder in question, at present known as "the Film Censor".

Amendment agreed to.
Government amendment No. 25:
In page 41, subsection (1), line 30, to delete "as the Director of Film Classification" and substitute the following:
", in English, as the Director of Film Classification and, in Irish, asan Stiúrthóir Aicmithe Scannán”.
Amendment agreed to.
Section 58, as amended, agreed to.
Sections 59 to 62, inclusive, agreed to.
SECTION 63.
Government amendment No. 26:
In page 45, lines 25 to 28, to delete all words from and including "health" in line 25 down to and including "2001)" in line 28 and substitute " ‘health insurance contract' ".

This is a drafting amendment.

Amendment agreed to.
Section 63, as amended, agreed to.
Sections 64 to 66, inclusive, agreed to.
SECTION 67.
Government amendment No. 27:
In page 49, line 39, to delete "severe" and substitute "undue".

The proposed amendment to section 29 has been the subject of discussion in this House and in the Dáil, as well as correspondence between FLAC and the Department. The Department has clarified for FLAC that the motivation behind this amendment is simply to put beyond doubt concerns which the board had regarding its power to waive or reduce the contribution payable by one of its clients in circumstances where it has been assessed at a level above the minimum. At present the board's conclusion is that it does not have this authority. Once this amendment is passed, it will unambiguously have this authority.

Concern was raised in this House regarding the application of a "severe hardship standard" as the criterion governing whether a contribution could be reduced or waived. The choice of language in the original amendment was informed by the existing language in the legal aid regulations, but this amendment proposes to replace that term with the word "undue" — in other words, the word "undue" replacing the word "severe". This latter expression, "undue", is more widely found in legislation generally and does not have the extreme connotations which might have been read by some into the term, "severe". It also better reflects the reality of how the board would operate such a standard. The intention is not to set the standard unreasonably high, while still providing that it would not simply apply in all cases, since it might be said that any request for a contribution would involve some hardship to a person on a modest income in so far as it would reduce his or her immediate disposable income.

I do not have a difficulty with the amendment. However, there was a debate on Second Stage in this House on the views put forward by FLAC, as referred to by the Minister of State. That organisation took a different view as to the likely effect of the proposed change. There appears to have been a difference of viewpoint as to what the real effect would be. I raised the question — as did Senator Regan and others — as to whether the Minister had taken the opportunity to listen to the views put forward by FLAC, and he said he had. However, the Minister of State should know that FLAC appeared not to accept that its views had been taken on board. It might be a matter of opinion or judgment as to whether they have, but the Minister of State states fairly, just as his colleague the Minister said on the last occasion, that the intent of the change was essentially in ease of persons likely to seek legal aid in these circumstances, rather than representing any restriction on that. I have not had the opportunity to hear further soundings on the issue from FLAC because Committee Stage came upon me fairly quickly. That happens to us all but there will be a further opportunity to do so. I am not opposing the Minister of State's change from "severe" to "undue" because it makes sense but I will revisit the issue on Report Stage, as I would do in any event, if on the basis of further soundings I find there are some issues raised by FLAC.

I welcome the Minister of State's proposal to replace the words "severe hardship" with "undue hardship". It was one of the main concerns raised on Second Stage in the discussions in this and the Lower House. There is still concern that the board does not have the discretion that the Minister of State suggests it has. This may be resolved through the relevant statutory instrument. The amendment is welcome but we can review the matter on Report Stage and reserve the right to decide whether further amendment is required.

I reassure Senators Alex White and Eugene Regan that the view taken initially by FLAC on the thinking behind the section has changed following explanatory discussions with the body and officials who were present in the Chamber. FLAC is now much happier with the provision and has changed its view substantially. The issue of discretion is no longer of concern and both Senators can be reassured by this.

Amendment agreed to.
Section 67, as amended, agreed to.
SECTION 68.
Government amendment No. 28:
In page 50, line 6, after "shall" to insert the following:
", in so far as they relate to the solicitor for any party to the proceedings pursuant to the certificate,".

This amendment is to clarify that the proposed change to the Civil Legal Aid Act being brought about by section 68 is intended to apply only in respect of the Legal Aid Board solicitors and not in respect of solicitors for any other party.

Amendment agreed to.
Section 68, as amended, agreed to.
Sections 69 and 70 agreed to.
Schedule agreed to.
TITLE.
Government amendment No. 29:
In page 9, line 18, after "1994," to insert "THE SOLICITORS (AMENDMENT) ACT 2002,".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Report Stage ordered for Wednesday, 4 June 2008.

When is it proposed to sit again?

At 10.30 a.m. tomorrow morning.