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Seanad Éireann debate -
Friday, 9 Dec 2011

Vol. 212 No. 4

Jurisdiction of Courts and Enforcement of Judgments (Amendment) Bill 2011: Second Stage

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

I thank Senators for making the necessary time available to introduce this Bill in the House, the objective of which is to implement the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed at Lugano on 30 October 2007. This convention is commonly referred to as the 2007 Lugano Convention.

The 2007 convention supersedes an earlier convention of the same name which was concluded in 1988 and which has been in force in this jurisdiction since 1993. It involves the member states of the EU and the European Free Trade Association, or EFTA, countries of Iceland, Norway and Switzerland. The 2007 convention was concluded by the European Community in May 2009 as the Community has exclusive competence for its conclusion. It has since been ratified by all of the relevant EFTA countries. As special arrangements pertain to Denmark in the area of judicial co-operation in civil matters, the convention has also been ratified by that country in its own right. A similar ratification requirement does not arise in relation to the other member states, including Ireland.

The primary purpose of the new convention is to ensure that the same regime will apply for the recognition and enforcement of judgments moving between these EFTA countries and the EU as prevails within the EU for judgments coming from the member states. The governing instrument within the EU is Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which is commonly known as the Brussels I Regulation. The 2007 convention replicates that instrument in all essential elements and will ensure coherence of arrangements among the states bound by the convention in so far as jurisdiction and the recognition and enforcement of judgments are concerned.

I am pleased to say Ireland has a solid and deepening trade relationship with the EFTA states, and particularly with Switzerland. Switzerland is a key market for Irish merchandise exports. Such exports reached over €3.5 billion last year and mostly consisted of medical, pharmaceutical and chemical products. Our merchandise imports from that country are approximately €850 million annually. Services exports to Switzerland are also very significant, having reached an annual total of €1.8 billion in 2010. Services imports totalled €1.6 billion last year. Switzerland is also a significant source of foreign direct investment to Ireland.

Norway is a very significant supplier of oil to the Irish market, to the value of approximately €1 billion in the last year. It is notable that overall trade with that country is very definitely two-way, with total Irish exports to Norway also having reached €1.2 billion last year. In relation to Iceland, as one would expect, the levels of trade with that country are more modest.

The enforcement of judgments has an ever increasing relevance to the lives of people in the State. Inevitably, from time to time, people will find the need to bring legal proceedings outside the State or, if they bring them in our own courts, they may need to seek to enforce judgments granted by those courts in other states. That relevance will continue to grow and develop as there is greater mobility of people and greater commercial interaction between the State and other states which are bound by the convention.

The origins of the 2007 convention can be traced to the seminal instrument in this area which is the 1968 convention on the Recognition and Enforcement of Judgments in civil and commercial matters which has now been replaced by the Brussels I Regulation. That 1968 convention was of far-reaching importance, providing and setting up procedures for the recognition and enforcement of civil and commercial judgments of the various member states of what was then the European Community. A key objective of the 2007 convention, and the instruments which relate to it, is the provision of speedy and informal procedures for enabling judgments given in one participating state to be recognised and enforced in each of the other participating states. Linking with this objective is the establishment of jurisdictional rules which determine the courts which are competent to rule on an action. I should like to emphasise that at the heart of the 2007 convention, of the Brussels I Regulation and of the earlier conventions lies a very simple concept, that is the provision of speedy and informal procedures to allow judgments in one participating state to be enforced in another participating state.

A significant development in economic terms in recent years is the globalisation of products and markets. Increased international competition and the growth in telecommunications and other technologies mean that measures providing for jurisdiction and enforcement across national boundaries have become more necessary in recent years. There is an ever-growing requirement that international contracts can be adjudicated upon easily before the courts of another country and that judgments given on foot of such adjudication can be enforced readily in other jurisdictions. In this context a system which guarantees the virtually automatic enforcement of foreign judgments is an important and practical tool for anyone doing business across national boundaries. The progressive elimination of barriers to trade means that now, more than ever, predictability and certainty are vital in the area of business and commercial relationships within Europe and beyond. Both individuals and corporate entities need to be sure they can readily enforce contracts and secure enforcement of judgments for what can, in some cases, be large sums of money. Such measures have the twin effects of protecting existing trade and encouraging new trade.

In a related field, I understand the Hague Conference on Private International Law has adopted a Convention on Choice of Court Agreements. That convention aims to ensure that such agreements, where they involve the parties to commercial transactions, can be upheld on a global basis. The likelihood is that this convention will be concluded by the EU sometime in the future. There is also the possibility that a more ambitious project will be undertaken within the framework of the Hague Conference on Private International Law which will involve the development of a worldwide convention providing for the recognition and enforcement of judgments in civil and commercial areas. This emphasises the significant potential for expansion and development in the sphere of judicial co-operation in Europe and beyond.

Turning to the specific provisions of the 2007 convention, the general rule of jurisdiction in the convention is the same as it was in the 1988 Lugano Convention. In essence, it requires that a defendant is to be sued in the country where he or she is domiciled. For the purposes of the convention's operation in Ireland, domicile in this context equates with ordinary residence in so far as a natural person is concerned. This rule applies regardless of whether a person is, or is not, a citizen of the relevant state.

However, in certain cases under the convention, a person can take proceedings in the courts of his or her own country even though the defendant in that action may be domiciled in another state bound by the convention. In particular, there are certain protective rules in this respect covering consumers, insurance and employment contracts. Thus, in the case of consumer contract provisions, for example, if an Irish person purchases goods in a state bound by the convention and those goods subsequently turn out to be faulty, or are not delivered, the 2007 convention enables those consumers to bring the action before the Irish courts, should they so wish.

Alongside, and as an alternative to the general rule of domicile, the 2007 convention keeps unchanged the existing structure that provides for special jurisdictions in several areas such as in matters relating to contract, maintenance and tort. These jurisdictions are set out in Articles 5 to 7 of the convention. These special rules recognise a link between the dispute itself and the court which may be called upon to hear it. They come into play only where there is a sufficient connection in terms of the proceedings between the dispute and the court before which the matter is to be brought, from the point of view of the gathering of evidence or the conduct of the proceedings, or in order to secure better protection of the interests of the parties against which the proceedings are directed.

The simplification of the procedures for the recognition and enforcement of judgments that fall within its scope is a fundamental aspect of the Lugano Convention. In this regard, all decisions given by a court or tribunal, whatever they may be called, are "judgments", and the term also includes orders on costs or expenses made by an officer of the court, as happens in some European systems. Provisional and protective measures also fall within the definition of "judgments" if they are ordered by a court, provided that in the state which gave the judgment, both parties were first given the opportunity to be heard. The judgments of the Court of Justice or of other European Community law courts also come within the scope of the 2007 Lugano Convention, as the term "state bound by this Convention" may also mean the European Community.

The changes made in the 2007 convention to the rules on the recognition and enforcement of decisions are based on the view that the intervention of the authorities of the state of enforcement can be scaled down and that the declaration of enforceability of a judgment can be reduced to little more than a formality. This position is supported by an examination of the national case law on the earlier conventions, which shows that appeals filed against declarations of enforceability under the Brussels and Lugano conventions are so small in number as to be almost negligible.

There is no change to the convention's basic provisions on legal aid. Thus, an applicant who, in the state of origin of the judgment, has benefited from complete or partial legal aid, or exemption from costs or expenses, is entitled to the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the state addressed. However, the application of this provision has a wider scope than previously, as it covers the entire enforcement procedure, including any appeal proceedings. In this context, the grounds for legal aid or exemption from costs or expenses are irrelevant. They are determined by the law of the state of origin of the judgment and are not subject to review. In this regard, a certificate issued by the authority that gave the judgment for which recognition and enforcement is sought must indicate whether or not the applicant has benefited from legal aid. This is sufficient to allow the applicant to qualify in the state addressed.

Turning to the Bill itself, it is wholly technical in nature, largely replicating the content of the statutory instrument used to give full effect to the Brussels I Regulation, which has been in operation since March 2002. Section 1 provides that the Jurisdiction of Courts and Enforcement of Judgments Act 1998, which deals with the Brussels I Convention and the original Lugano Convention, is amended in two ways. First, a new Part IIIA dealing exclusively with the 2007 Lugano Convention is inserted. Second, the 2007 Lugano Convention is inserted as a Schedule to the 1998 Act.

The new Part IIIA contains a number of sections which I shall briefly outline in order to provide some additional background for Senators as to the content of the Bill. Section 20A contains standard interpretation provisions, while section 20Bstates that the convention has the force of law in the State. Section 20C provides that judicial notice shall be taken of the convention and of the explanatory report on it prepared by Professor Fausto Pocar. The effect of this section is that the courts are taken to know of the provisions of these texts without the requirement to have them proven in evidence. Judicial notice is also to be taken of relevant court decisions which, in this context, include decisions relating to the old Lugano Convention and to the Brussels I Regulation.

Section 20D authorises the Minister for Foreign Affairs and Trade to make certain orders in regard to convention matters, most notably that a specified state is a state bound by the convention, or that particular declarations or communications have been made. While such orders are in force, they are of evidential value.

Section 20E provides that an application under the convention for the recognition and enforcement in the State of a judgment shall be made to the Master of the High Court for determination under the convention. This means that the recognition and enforcement machinery in the convention automatically comes into play whenever a convention application is made. As a general principle, convention judgments are entitled to recognition without any special procedure being required. In regard to enforcement, once the prescribed formalities have been completed, the judgment is declared enforceable immediately without any review under Articles 34 and 35 of the convention, which set out the grounds for non-recognition.

The main grounds for denying recognition, which will only come into play if the initial decision by the master is appealed to the High Court, relate to public policy and to an absence of fair procedures. The latter arises mainly in default cases where the defendant was not served with the document instituting the proceedings, or with an equivalent document, in sufficient time and in such a way as to enable him or her to arrange for a defence, unless he or she failed to commence proceedings to challenge the judgment when it was possible for him or her to do so.

Section 20F is concerned with the enforcement of convention judgments. In broad terms it provides that a judgment, other than a maintenance order, in respect of which an enforcement order has been made, shall be of the same force and effect as a judgment of the High Court, and that proceedings for its enforcement may be taken accordingly. In regard to maintenance orders, provision is made in section 20G for the enforcement of such orders by the District Court. An exception is made for cases where substantial arrears are involved as, in such a case, the enforcement machinery of the High Court might be more appropriate. I will be proposing an amendment to section 20G on Committee Stage to take account of the change to section 8 of the Enforcement of Court Orders Act 1940, as introduced by the Civil Law (Miscellaneous Provisions) Act 2011, which we discussed in this House last July.

Section 20H deals with provisions in enforcement orders for the payment of interest on judgments and for the payment of costs. While the convention is silent on the question of interest, the spirit of the convention clearly requires that foreign judgments should carry interest as provided for by the law of the state in which the judgments were made. When a foreign court makes a judgment it will either make specific provision for the payment of interest in the judgment itself or it will have made the judgment on the basis that its national provisions on interest will apply. This section also contains provisions dealing with the payment of costs in regard to applications for enforcement orders and the payment of interest in respect of those costs.

Section 20I provides for the fixing of the currency and rate of exchange that should apply in the case of enforceable maintenance orders. Sums required to be paid in respect of such orders are to be paid in the currency of the State. If the amount stated in the maintenance order is other than in the currency of the State, it will be converted into the currency of the State on the basis of the exchange rate prevailing on the date of the making of the enforcement order. A certificate signed by an officer of an "authorised institution", as defined in subsection (4), stating the prevailing exchange rate on a specified date, will be evidence of the facts contained in that certificate.

Section 20J deals with the proof and admissibility of documents which must be produced when applying for the recognition or enforcement of a judgment given in another state bound by the convention. This is a technical provision to avoid the need to take up court time in formally proving validity of the documents concerned.

Section 20K deals with the granting by the High Court of provisional, including protective, measures. Most commonly, such measures would be in the form of an injunction to restrain a defendant from transferring assets out of the jurisdiction in order to ensure that they would be available to satisfy any resulting judgment of the court seised of the substantive proceedings. Subsection (1) of this section provides that the High Court will have the power to grant the provisional measures normally available to it, even if the substantive matter of the case falls to be heard by the courts of another State bound by the convention. Under Article 31 of the convention, application may be made to the courts of a state bound by the convention for any provisional, including protective, measures as may be available in its law, even where jurisdiction as to the substance of the matter lies with the courts of another state bound by the convention.

The purpose of the article is to allow, for example, a foreign plaintiff who is proceeding against a defendant in Switzerland under the terms of the convention, to freeze any assets which that defendant may have in another state bound by the convention. Thus, when judgment is given that plaintiff can succeed in enforcing the judgment in that other state in circumstances where the defendant has no assets, or has insufficient assets in Switzerland to meet the claim.

The provisional measure most likely to be availed of is the Mareva injunction, which is used to restrain the disposal by the defendant of his or her goods or their removal from Irish jurisdiction so as to defeat any future judgment that may be given against him or her by the court seised of the substantive proceedings.

Subsection (2) gives the High Court discretion to refuse to grant provisional measures pursuant to subsection (1), if it thinks that the grant of such measures would be inexpedient. The purpose of the subsection is to make it clear that the High Court is not compelled by subsection (1) to grant provisional measures. Subsection (3) provides that an application to the Master of the High Court to grant an enforcement order may include an application for any protective measures which the High Court has power to grant in proceedings that, apart from this Act, are within its jurisdiction. This subsection is subject to Article 47(3) of the convention which safeguards the rights of the defendant pending the elapse of the time during which an appeal can be made.

Under subsection (4), when an enforcement order is made, the Master of the High Court does not have discretion to refuse an application for protective measures, provided the measures sought are measures which the High Court would have power to grant in other proceedings which fall within its jurisdiction. This follows on from Article 47 of the convention which specifies that a person is automatically entitled to obtain protective measures on the granting of an enforcement order.

The distinction between provisional and protective measures can be summarised as follows. Provisional measures can be applied for at any time and, under Irish law, one can apply for an injunction provided one has issued, or is about to issue, an originating summons. On the other hand, the protective measures referred to in Article 47 can only be sought and obtained in the context of the granting of an enforcement order, the judgment itself having already been given in the state of origin.

Section 20L deals with domicile for the purposes of the convention. As mentioned, domicile is the connecting factor used in the convention to link a person with a state for the purposes of grounding jurisdiction. The convention does not define "domicile", but provides in Article 59 that it is to be determined in accordance with the law of each state bound by the convention. In Ireland, domicile would normally be understood in the common law sense which, in broad terms, means that an individual is considered to be domiciled in the country in which he or she intends to reside permanently or for the indefinite future. However, for the purposes of this convention and of equivalent instruments, domicile is assigned a particular meaning which assimilates it more closely with ordinary residence. The convention itself contains autonomous rules in relation to the domicile of companies or other legal persons.

Section 20M sets out the venue at which certain convention proceedings may be brought insofar as the Circuit and District Courts are concerned. This is necessary because certain articles of the convention give a general jurisdiction to the courts of the state where the defendant is domiciled. However, they do not establish venue for the lower courts and that matter falls to be determined by national law.

Section 20N specifies that Part III of the 1998 Act, which relates to the 1998 Lugano Convention, shall, except as provided in Article 65, cease to apply between the state and a state bound by the convention. Article 65 provides that the convention shall supersede conventions on the same subject matter concluded between states bound by the convention, but it is subject to some transitional provisions set out in Article 63(2), and to Articles 66 and 67 which cover the relationship between the convention and other international agreements as well as Community instruments such as the Brussels One regulation.

Section 2 of the Bill provides for various textual amendments to the Maintenance Act 1994 which are required in consequence of the implementation of the 2007 Lugano Convention. Section 3 sets out the Short Title of the Bill and the relevant collective citation for the purposes of the Courts (Supplemental Provisions) Acts.

This Bill is very technical in nature. However, despite its technical character, it bears witness to the ever increasing international ties which bind us to other countries, particularly in the commercial sphere. I look forward to the comments of Senators and commend the Bill to the House. I thank Senators for their agreement to deal with the Bill this morning.

I welcome the Minister to the House. My party will be supporting the concept of this Bill. As the Minister has outlined, the Bill gives effect to the Lugano Convention. It also makes consequent amendments to the Jurisdiction of Courts and Enforcement of Judgments Act 1998 and the Maintenance Act 1994. It also provides rules on jurisdiction, recognition and enforcement of judgments in civil and commercial matters between Ireland and other countries. I practised law and I know it was not uncommon to encounter situations where a Belgian, Dutch or Italian driver was involved in an accident in west Cork or Kerry. Foreign visitors driving hired cars were frequently involved in traffic accidents and this resulted in court cases and overseas insurance companies. I thank the Minister for what he said yesterday about the closure of Garda stations. Without wishing to be parochial I might ask for his view on the Goleen Garda station. I was being disingenuous the other night when I told a Fine Gael Deputy from west Cork that if the ever ebullient and affable——

I ask the Senator to speak to the Bill, please.

This is indirectly connected. If PJ Sheehan was still a Member of the Oireachtas, he would not have allowed it. I know this is not to do with the Bill but the anniversary of the death of Sophie Toscan du Plantier is approaching. Her death occurred in my area, the Mizen peninsula. It is now 13 or 14 years since that happened and the case remains unsolved. The Minister may not wish to comment as it is sub judice but it is a matter of great concern. I still meet people who wonder what happened and who killed her.

The issue of civil legal aid was raised on the Order of Business. I ask the Minister to reflect on how the criminal legal aid system works. It is inequitable and unfair. I would be interested to hear the Minister's views. I suggest at a later date we could have a debate on the issue. It appears that 1% of lawyers, of solicitors and barristers, collect more than 85% of the fees from criminal legal aid. The system is completely skewed. At the minimum it requires serious review. I ask the Minister to consider this matter.

Senator Jim Walsh often raises the question of the significant fees earned by solicitors and barristers. We should also spare a thought for the 2,500 law graduates and recently qualified solicitors and barristers who are jobless and have no hope of securing employment and the many others in the lower echelons of both professions who are struggling to make a decent living. Some of those who are critical of legal fees charged by barristers and solicitors do not realise that the vast majority of solicitors and barristers make an ordinary living.

To return to the Bill, while there are no doubt very good reasons, I am not sure why the convention does not apply to matters such as revenue, customs and administrative matters. Is the reason that it may transgress into certain criminal areas or would extending the convention to these matters require the Minister to be too specific? Similarly, it does not extend to the status or legal capacity of natural persons, rights in property and so forth. Bankruptcy is also excluded from its scope at a time when people from this jurisdiction are travelling to Great Britain to avail of that country's different rules on bankruptcy. Given our current economic plight and the ongoing delicate negotiations taking place in Brussels, perhaps there should be an international bankruptcy law. Social security and arbitration are also excluded. I restate my support for the Bill. I am not trying to put weasel questions to the Minister but I ask him to comment on the reasons these areas have been specifically excluded from the scope of the legislation.

The Fianna Fáil Party will support the Bill. I apologise if I digressed slightly but as we approach the festive season, I thought the Minister would be a little indulgent and give me some leeway.

I apologise on behalf of my colleague, Senator Bradford, who would normally deal with legislation of this nature but is otherwise engaged.

I welcome the Minister and the Bill which is highly technical and addresses an important area. In recent years, the amount of commercial work being done across jurisdictions has increased. As recently as a month ago, I was involved in a case where Irish investors who were doing some work in France secured a loan in Germany but decided to apply Luxembourg law. This gives us an indication of what is taking place in the commercial field.

There is little I can add to the comprehensive overview provided by the Minister. We need to have a facility to deal with cases in which people are trying to enforce judgments obtained in other jurisdictions. We must also ensure that assets are not removed from the jurisdiction. The legislation addresses these issues. Another important and controversial issue addressed in the Bill is maintenance and cases of people moving to other jurisdictions to avoid paying it. It is important that procedures are in place to address this practice.

It can be difficult at times to identify where people are living. It is important, therefore, that clear definitions and provided and procedures are in place. The Bill does this and should be enacted at an early date. The Minister set out in detail the volume of commercial work being done, not only between Ireland and other members of the European Community, but also with the three non-EU countries which are party to the convention. I thank him again for providing a thorough briefing on the legislation.

I call Senator Bacik, who has ten minutes' speaking time.

Neither of the two previous speakers used up their speaking time and I will not speak for ten minutes. I appreciate that this is a technical Bill which enjoys support across the House and for that reason there is no point in speaking at length on it for the sake of it. On the day that is in it, however, with negotiations taking place at European level, I should point out that while reading through the Bill I was struck by the references in the annexes to the various courts in the European Union member states and the many different languages which will be relevant to the cases confirming the application of the legislation in Ireland and across the EU. This brought home to me how intrinsically bound up we are in European Union legal procedures and yet how fragile things are at present at another level.

I will make a few points on the Bill. I was struck during the Minister's speech by the extent of our trade with Switzerland in particular. I was not aware that the value of our exports to Switzerland, at €5.3 billion, is almost double the value of our imports from that country which stands at €2.64 billion. This brings home the importance of having legislation and international agreements in place that will enable small and medium enterprises and businesses involved in export to enforce judgments across borders with countries that are not directly in the European Union but, as in the case of Switzerland, are members of the European Free Trade Association. This is a matter of interest.

I am also interested in the concept of a worldwide convention building on the Hague Convention principles and seeking to ensure enforceability of judgments across borders outside the European Union. What strikes me is the difficulty of guaranteeing the integrity of court procedures in countries that are not bound up in the EU or EFTA structures. This will be a difficulty if we try to expand the principles further.

Senator Burke referred to the issue of maintenance and Senator O'Donovan referred to the scope of the convention. I note that all family law matters appear to be exempt. I ask the Minister to clarify whether that is the case. The type of maintenance referred to in the legislation is not maintenance in the family law context. Article 1 reads:

1. This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

2. The Convention shall not apply to:

(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession...

As this is an area of law on which I am not particularly well informed, I am not sure if the convention has an application to family law matters. I presume the reference to maintenance relates to another setting.

I note the convention applies to employment contracts, which will be of interest to many people employed here, and consumer contracts, which is also of interest because we assume when we are speaking about these types of conventions that the main impact will be on businesses seeking to enforce judgments. The convention also applies to consumer contracts — Article 15 — which will have some import for people.

The Minister referred to the freezing of assets in other jurisdictions and provisional and protective measures. This is of vital importance, not only in terms of judgments but also other measures such as the use of the Mareva injunction. It struck me that the Minister referred to the freezing of assets where somebody had a case initiated in Switzerland. The assumption we all have is that it is extremely difficult to get at any assets held in that country. The idea of freezing Swiss bank accounts is almost a cliché at this stage but it appears it will be possible under the terms of the convention.

These are just some of the points that occurred to me looking at the text of the legislation before us. I want to refer briefly to the criminal legal aid issue. This morning, prior to the Minister coming to the House, others referred in very strongly critical terms to the withdrawal of services yesterday. I know there is no sympathy for barristers and solicitors who are seen as being high earners, and a small number of people do very well from the criminal legal aid scheme. However, as somebody who has worked in the area in the past I know a great number of people at the lower end earn very little, particularly starting out. Senator O'Donovan mentioned this. The level of fees in criminal cases is much lower than the level in civil and commercial cases which, ironically, we are discussing today. There have been quite significant cuts in criminal legal aid payments in recent years. I do not state this to express support for the action taken yesterday but to set a context.

I thank the Minister for his response yesterday on the cuts in funding to the National Women's Council. Like Senator O'Donovan, I do not wish to be parochial or to raise matters outside the ambit of the legislation but I am grateful to the Minister for giving such a full answer to me. I am still concerned at the extent of the cut and at the idea that groups working on advocacy are not given the same priority as groups working on frontline services. I entirely accept cuts are necessary — everyone does — but advocacy can be very important, certainly on issues such as rape and domestic violence.

I welcome the Bill and express my support for it as others have done. We are happy to facilitate the early passage of the Bill. I know the Minister is anxious to ensure its early passage so we can comply fully with EU obligations in respect of these judgments from the EFTA states and I expect we will be able to deal with Committee Stage very early in the new year.

I thank Senators for their responses and support on all sides for what I know is a very technical Bill, but which is very important in the context of interaction throughout the European Union and interaction with the EFTA countries to which it relates.

Senators have raised a number of interesting questions. I am sure Senator O'Donovan will forgive me if I do not stray so far as to go back into dealing with the closure of Garda stations——

——because I cannot figure how it is relevant to where we are on this issue but I will give the Senator marks for trying.

The former Deputy, PJ Sheehan, expressed his concern so I said I would raise the matter with the Minister.

Interesting issues have been raised and I will deal with the issues that specifically apply to the Bill and I will then be happy to respond to a couple of marginally related issues which Senators raised. In dealing with the Bill, Senator O'Donovan correctly referred to Article 1(2) of the convention which deals with the areas to which the convention does not apply. In the context of the convention being a continuity, going all the way back to the 1968 provision that was mentioned, the matters traditionally excluded from this area of European Union law, some of which have been mentioned, continue to be excluded under Title I Article 1(2) of the convention. It is worth referring specifically to this because it brings me back to an issue raised by Senator Bacik. The provision in the convention reads:

The Convention shall not apply to:

(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(c) social security;

(d) arbitration.

I will deal with paragraph (b) first. European Union arrangements are in place to deal with some aspects of bankruptcy and insolvency in the context of the differing domestic laws within the different European Union countries. From an Irish perspective this does not prevent in any shape what I would describe as “forum shopping” whereby a small number of formerly very wealthy individuals who are now in significant financial difficulty have sought within the Union to have their bankruptcy matters dealt with in either England or Northern Ireland, because the bankruptcy period in those jurisdictions is for only one year. Some have gone outside the European Union, where none of the European Union measures is of direct relevance, to the United States and sought to invoke bankruptcy matters there. One very well publicised case is taking place and has been before the courts in the United States for a considerable time. As Minister for Justice and Equality, I do not want to make reference to it beyond pointing to the fact that it involves an individual seeking to utilise a bankruptcy law in another jurisdiction who had open to him the taking of bankruptcy proceedings in Ireland.

With regard to bankruptcy and Ireland, this House dealt with some amendments made in the Civil Law (Miscellaneous Provisions) Act to our bankruptcy laws. Major changes are now being made to bankruptcy and insolvency law, as I advised the House back in July. Not to digress unduly, but it is important that we bring our laws up to date and that we make less attractive forum shopping in the context of bankruptcy and that persons in this State who are owed money do not find themselves having to deal with a bankruptcy proceeding in a foreign jurisdiction as opposed to the Irish courts.

I expect before the end of the year to publish a framework for the new insolvency legislation dealing with personal insolvency issues across the board. I expect to publish the heads of a Bill which I hope will be agreed very shortly by the Cabinet. As the heads of the Bill will be forwarded to the Oireachtas Joint Committee on Justice, Defence and Equality as promised, Members of both Houses will have an opportunity to comment on them and report back. At the same time, the Office of the Attorney General will be developing the heads into a substantive Bill which I hope will be published in full form before Easter. Any observations we receive from the committee will be fed into this process.

Other areas referred to are traditionally excluded from this convention, therefore, social security and arbitration have not been part of this. Social security issues give rise to matters very different from those addressed in this Bill and arbitration has its own unique place and would not properly feature in legislation relating to the enforcement of civil and commercial judgments.

To Senator Bacik I state the provisions I would describe as strictly family law provisions are designed to exclude from this convention matters dealing with the status of persons. In other words, the convention has no direct relevance to divorce proceedings. It does not deal with the enforcement of a divorce order in so far as one can be enforced or the recognition of a divorce order. There is a separate regulation in place throughout the European Union, known as Brussels II, which deals with the recognition of divorce orders granted and jurisdictional issues with regard to divorce.

There is also a European Union regulation which deals with the enforcement of orders with regard to matrimonial property where such orders are made in divorce proceedings. In both cases, whether under Brussels II or a matrimonial property matter, it applies to separation proceedings. Ireland is not a party to the provisions in place with regard to matrimonial property because they would have created certain constitutional difficulties in the context of our present constitutional provisions with regard to divorce as contained in the family provisions of Constitution in Article 41.

The good news for Senator Ivana Bacik is that the convention, in its original 1968 form, expressly makes provision for the enforcement of maintenance orders. The Bill provides for continuity in this regard. Section 2, Article 5, subparagraph 2 of the convention makes reference to the issue of maintenance. Specific provisions in the Act are applicable. For example, section 20G deals generally with the enforcement provisions that will apply to maintenance orders. Section 2 relates to the Maintenance Act 1994 and the necessary amendments to be made to it. In the context of the states to which the convention applies, it establishes an updated list of new provisions for the reciprocal recognition and enforcement of maintenance orders that arise when a marriage enters into difficulties. It is important that these vital provisions be contained in the legislation.

Mention was made of civil legal aid, an issue which has some relevance to the Bill, given the provisions that extend civil legal aid to those seeking to enforce in one state judgments in another state in circumstances in which the enforcing state is obliged to provide the same level of legal aid as obtains in the state in which the original order was made. The Bill has no relevance to the recent dispute, but Senators Denis O'Donovan and Ivana Bacik chose to mention it. I was interested in the former's concerns. A small number of solicitors' firms earn substantial fees under the criminal legal aid system. In terms of their and their lawyers being on the panels for criminal legal aid in the context of the work they properly undertake on behalf of alleged offenders in the criminal courts, they are entitled to the fees payable under the criminal legal aid system and I would not in any way criticise an individual lawyer or firm for undertaking work under the criminal legal aid system and being appropriately paid for it. However, it is curious that those who appeared to be in the leadership role in the attempted strike that took place yesterday were among the very highest earners under the criminal legal aid scheme. Having briefly looked at the figures, one solicitor, through work he has done in his firm, earned in excess of €2 million in fees from criminal legal aid work in four years. Another earned €1.8 million. At another firm in the same period fees were assigned to an individual in the region of €4 million. As a solicitor in practice, I understand these are not simply fees paid to the solicitor in that the solicitor has to meet the cost of running a firm of employees and assistant solicitors. However, in the current financial climate when that level of fees is being earned, it is extraordinary that individuals should withdraw services. It was outrageous that cases were unnecessarily adjourned in the courts yesterday.

Lawyers, as officers of the court, have a duty to it to ensure cases are disposed of in the interests of the court system and defendants as efficiently and early as possible without unnecessary expense being incurred. It is important that judges who are under pressure because of the large amount of work before the courts in criminal and civil matters do not have a day or a part thereof wasted. It was unfair to alleged offenders who appear before the courts. We operate with a presumption of innocence and those who are innocent of charges taken against them are entitled to have their cases processed as early as possible. As Senator Denis O'Donovan mentioned, a substantial number of young solicitors and barristers are not only unemployed, but are also not as prominent as those earning large fees. They are struggling to make ends meet and would readily be available to undertake work competently in circumstances in which others declined that work.

The dispute arose in an extraordinary way. I received a letter, dated 23 September, from the newly formed organisation of solicitors and barristers doing criminal legal aid work. The source of their complaint was the decision made by me within my Department to reduce the fees payable under the criminal legal aid system by 10%. Their primary complaint concerned the loss of parity with fees payable to prosecuting counsel. Approximately four days after I had received that letter, the Director of Public Prosecutions applied a similar 10% fee reduction. Any suggestion prosecuting lawyers are better paid than defendants' lawyers is, therefore, no longer accurate. The prosecution and the defence remained in the same position fee-wise as the new legal term was entered into in October. That was the urgent issue they wished to discuss with me.

In December 2010 the previous Government made available to the then Minister for Justice and Law Reform €47 million for the criminal legal aid scheme in 2011. It became very clear as we headed into the summer months that this would not be an adequate sum to meet the needs of a demand-led scheme. The €47 million made available to the Department has been exceeded by more than €10 million. To meet this expense, other areas funded by the Department have lost out as money had to be found to meet the expenses incurred. The sum I have allocated for the scheme in 2012 is €47 million and we must stay within budget.

In the last week of November the group again asked to meet me. We replied and advised that I was happy to meet it after the budgetary process was completed and when the 2012 Estimate for the Department was known. I indicated that, if possible, I would do my best to meet it before 21 December, but that I could not guarantee such a meeting because, first, I had legislative commitments that were keeping me in this House all day and would see me dealing with other matters next week, and, second, I had a meeting of European Justice Ministers next week in Brussels that would take up some time. The group was told that, towards the end of this week, my office would make contact with it. Last Friday it announced that its members were going on strike and they took action yesterday. As I understand it, their action had no impact on the higher courts but had some impact at District Court level. On occasion, lawyers stood up to say they were withdrawing, but they remained and continued to deal with cases. It is also my understanding from communications I have received that a significant number of solicitors and barristers on the criminal legal aid panel were resolutely opposed to what occurred yesterday. The action taken was a disgrace.

In my response in November I invited the group to submit its ideas to me. They had suggested they had ideas on how money could be saved under the criminal legal aid scheme. I told them I would very much appreciate their writing to me detailing where savings could be effected in a manner which would continue to ensure that the rights of alleged offenders were protected. I made that request — I do not have the exact date before me because I did not expect to have to deal with this issue this morning — approximately two and a half weeks ago. I am still waiting to hear what they have to say on that issue.

I fully support what the Minister has done. My concern is the perception that there is a cosy cartel within the top echelon, which is now causing the trouble. That should be reviewed at some stage.

I thank the Senator for giving me and Senator Bacik the opportunity to address this issue.

I do not wish to be contentious but sometimes one has to be.

Those on the criminal legal aid panels have certain duties. They failed in their duties yesterday. Fees are paid to criminal legal aid lawyers for adjourning cases. I will make absolutely certain that cases unnecessarily adjourned yesterday because of this protest do not result in those who obtained the adjournments being paid fees in that regard, which is contrary to the public interest.

I call on the Law Society of Ireland and Bar Council of Ireland to consider whether it is appropriate conduct for any lawyer in receipt of a legal aid certificate to represent an individual to decline in court to allow a case to go ahead, even if it is simply to bring about a 24 hour adjournment. I want a public pronouncement from the Law Society of Ireland and Bar Council of Ireland on that issue. I want to ensure we have no repetition of this. I believe it was inappropriate and wrong. In circumstances in which €10 million more of public money was spent on criminal legal aid in 2011, it is extraordinary that a group of lawyers entered into a campaign yesterday for what appears to be increased fees when what we need to do is make the system more efficient, protect the rights of alleged offenders and bring under reasonable control the costs of the criminal legal aid scheme. I am again calling on the group, if they have ideas in regard to how to bring costs under control while protecting the rights of alleged offenders, to submit them to me in writing. I am also happy to meet them in the new year but I will not meet people under threat of withdrawal. The message that came to my office last week was that if I refused to meet them within seven days, they would go on strike. I believe that was an extraordinary way for a newly formed group to deal with an issue of this nature, in particular when the leaders of that group, unlike the people — the large number of well qualified lawyers who could otherwise undertake this work and do it as efficiently as others — about whom Senator O'Donovan is rightly concerned, are earning enormous fees.

I apologise to the chair for going into an issue which has no direct relevance to the legislation.

Senator O'Donovan set the tone for the Minister.

Senator O'Donovan seduced rather than provoked me into addressing the issue. It is important to have an opportunity to make comment on the public record. I thank Senators for the opportunity to deal with what I know is a difficult Bill, technically. However, it is beneficial and will ensure we remain in step with our European Union colleagues in this area and put in place the necessary provisions between the European Union and EFTA countries that are deemed necessary to provide the best possible system of enforcement of judgments with regard to the civil and commercial area.

Question put and agreed to.

When is it proposed to take Committee Stage?

Next week.

Committee ordered for Wednesday, 14 December 2011.