Amendments Nos. 1 and 74 to 76, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.
Courts Bill 2013: Committee Stage
We are discussing amendments Nos. 1 and 74 to 76, inclusive, together. The purpose of amendment No. 1 is wonderfully simple, namely, to change the Short Title of the Bill to better reflect the content of the Bill in light of the amendments proposed on Committee Stage. As a consequence to the amendments being made to the Bill on Committee Stage, it is necessary to amend the Long Title to correspond with the content of the Bill. Amendments Nos. 74 to 76, inclusive, provide for this, and I suspect that these are the least controversial amendments proposed.
Amendments Nos. 2, 5, 6 and 17 to 19, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Following discussions with the Minister for Children and Youth Affairs, we have agreed that it would be appropriate for the change to the in camera rule provided in the Courts Bill also to apply to court proceedings under the Adoption Act 2010. The relevant proceedings would appear to be those provided for by sections 18, 30, 31, 49, 54 and 92 of the 2010 Act. Amendments Nos. 5 and 6 provide for this. However, the Adoption Bill 2010 does not contain an explicit in camera requirement in three relevant sections and I am advised that in the interests of clarity and consistency, it would be better to insert an explicit reference to the requirement. Accordingly, a requirement for proceedings to be held in private is being explicitly inserted in sections 18, 30 and 31 of the Adoption Act by amendments Nos. 17 to 19, inclusive. Amendment No. 2 is consequential to these amendments.
This provides for the commencement of Parts 7 and 8 of the Bill, which are proposed to be inserted by subsequent amendments.
Amendments Nos. 4, 25 and 26 are related and may be discussed together by agreement. Is that agreed? Agreed.
Amendments Nos. 25 and 26 propose to insert a new Part 6 into the Bill which provides for the amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and aid in respect of certain inquests. As I mentioned on Second Stage, the Coroners Bill 2007, which has been restored to the Order Paper for this House, is in the course of being reviewed in my Department. That review essentially focuses on the development of the optimum administrative and jurisdictional structures which in the most cost-effective way can best deliver the planned reform of coronial law.
The Bill, as published, provides for the comprehensive reform of the existing legislation and structures relating to coroners and provides for the establishment of a new coroner's service. The European Court of Human Rights has in recent times emphasised the importance of ensuring the next of kin of the deceased can effectively participate and engage in a coroner's inquest into certain categories of death such as those limited number of cases where death is at the hands of the State. This right to effective engagement includes the provision of information prior to the inquest. This means that in certain cases, families may require legal assistance to participate effectively in the inquest process.
I should make it clear that I am not introducing a legal aid scheme for participants at any or all inquests. This is because an inquest is an inquisitorial process which does not establish civil or criminal liability. Rather, I am providing for the targeted provision of legal advice and aid in certain defined scenarios where the participation and engagement of next of kin is considered necessary and desirable and where they do not have sufficient means to provide for that representation. No eligibility criteria in regard to financial means operated by the Legal Aid Board will apply in these situations. Neither am I providing for free legal aid to pursue civil actions by next of kin. The legal assistance provided is in regard to the death investigation only.
This matter was addressed in the Coroners Bill 2007 which proposed in section 86 for the introduction of a legal aid scheme for proceedings before a coroner and in section 92 for the required technical amendments to the Civil Legal Aid Act 1995. These changes would permit the Legal Aid Board to arrange for the granting of legal advice or aid to the family of a deceased person for legal representation at an inquest where the person has died in or immediately after being in State custody or certain institutional care situations. Given the importance of these matters, being conscious that progressing the Coroners Bill 2007 may take some time and in light of the State's obligations under the European Convention on Human Rights, I am of the view that the Courts Bill presents an opportunity to address the issue of legal aid at certain inquests.
Accordingly, the amendments I am moving today propose to include the broad provisions contained in sections 86 and 92 of the Coroners Bill 2007 in the Courts Bill with some refinements to the text to take into account developments since the Coroners Bill was published. An important consideration is that the amendments will be made to the Coroners Act 1962 as opposed to the original intention of being contained in new legislation. I should point out that the proposed amendments have been developed with the advice of the Office of the Attorney General. We have also had the benefit of the technical advice from the Legal Aid Board. I believe coroners will also welcome the new provisions.
The new provisions will replace the ad hoc arrangement operated by my Department, in consultation with the Office of the Attorney General, under which ex gratia payments for legal representation may be made in certain cases involving deaths in State custody. At this point, I would have regard to the uncertain nature of possible situations. While it is not possible to be exact as to the likely costs, I would expect that some increase on the cost of the current ad hoc arrangements, which have averaged €50,000 per annum in recent years, will arise. The base of the potential number of deaths which might qualify the cost may be in the region of €250,000 annually. This, however, would be considerably less than the cost of establishing dedicated inquiries into deaths at the hands of the State, which will be necessary in the absence of the inquest system in order to meet the State's European Court of Human Rights obligations.
Amendment No. 25 provides for amendments to the Coroners Act 1962. Section 21(a), which is a new section, provides for the amendment of section 29 to provide for certain exemptions to the fees charged by coroners and county registrars for providing copies of documents to certain categories of persons or organisations. This would now include the next of kin granted legal aid. Section 21(b) provides for the insertion of a new section 60 in the Coroners Act 1962 which sets out the circumstances where legal advice and aid at inquests will apply. It provides that where an inquest is to be held into the death of a person in circumstances listed in subsection (5), a member of the family of the deceased may apply to the coroner for a request be submitted by the coroner to the Legal Aid Board for the grant of legal aid or advice of both. The application is to be made before the commencement of the inquest unless the coroner permits otherwise.
Subsection (3) provides that the coroner is required to determine the application within ten working days of the receipt of the application. If the coroner is satisfied that the applicant meets the criteria set out in subsections (5) and (6), he or she shall request the Legal Aid Board to grant legal aid or advice or both to the applicant concerned.
Subsection (5) lists a range of State custodial or certain institutional care situations to which the provision applies. Deaths in these institutions will give rise to an inquest by the coroner. I am also providing to ensure the fullest possible compliance with the European Court of Human Rights for the coroner to consider an application to request the Legal Aid Board to provide legal aid where the circumstances of the death may give rise to a matter of significant public interest where the possible recurrence or continuation of those circumstances could be harmful to public health or safety. Subsection (6) provides that where an applicant has been granted legal aid or advice or both by the Legal Aid Board on foot of subsection (4), no further application will be made by a family member in respect of the inquest concerned. Subsection (7) is an interpretation provision.
Amendment No. 26 provides for mainly technical drafting amendments to the Civil Legal Act 1995 to provide for the inclusion of these new inquest provisions in the legal aid framework and any necessary cross-referencing to the new section 60 of the Coroners Act 1962 to be inserted by this Bill. Amendment No. 4 is consequential on amendment No. 25.
I very much welcome these amendments to the Coroners Act and the Civil Legal Aid Act which are long overdue. It is appropriate that we would do this pending the overall review of the coroners legislation. This is something for which the families of deceased persons have been looking for some time. I appreciate that, as the Minister says, it is limited to certain cases, in particular where there has been some State involvement or where the deceased has been in the custody of the State in some way or in related circumstances.
I have one issue with amendment No. 21 and the new proposed section 60 of the Coroners Act, including section 60(6). I know that quite a broad definition is given in subsection (7) of the family member who may apply. Subsection (6) provides that there is no further application possible by a family member where legal aid or advice has been granted to an applicant in respect of an inquest. Should some provision be made where there is a conflict? One can anticipate that this could arise where there is conflict between different family members who wish to be represented in respect of a particular deceased. How should a coroner adjudicate on that if their hands are tied having granted one application for legal aid? Should there be a provision in subsection (6) along the lines of "unless the coroner considers it appropriate" or some saving clause to allow for some discretion for the coroner? One does not want to be too prescriptive but it seems that one could anticipate that a family member might apply and by virtue of having done so first, they then preclude other family members who might wish to apply where there is some difference of view among a family or where some conflict arises in respect of the inquest. It seems it might be a safer option and I ask the Minister to look at that for Report Stage.
Does the Minister wish to reply?
I note that the Minister has added numerous amendments from amendment No. 26 onwards which we have not had enough time to consider adequately because they effectively amount to a new Bill. We do not feel this is the way to do business. Effectively, it is a new Bill with several lengthy provisions with significant implications regarding the amendments circulated last night. The Taoiseach spoke in this House earlier about significant political reform, yet we feel this is a very bad way of doing business so we will abstain for the time being and consider in more depth what is contained in these new amendments from amendment No. 26 onwards. We may consider new amendments for Report Stage. I understand these amendments largely relate to making provision for the Juries Act in the case of lengthy jury trials, the Coroners Act, civil legal aid, assignees for the insolvency service, etc. While we do not see anything obvious to which we object initially, we want to consider these in greater depth before Report Stage.
I wish to raise an issue in respect of the Coroners Act. The issue may already have been covered in other amending legislation but I have not been able to find it. The issue is about the duty of the coroner to hold the inquest within a certain period of time. The case I am citing is where a death occurred in a hospital through natural causes and there had to be an inquest but there was a delay of about 18 months. The hospital became concerned that it was creating uncertainty and might involve unnecessary litigation to the extent that it contacted the State Claims Agency to see if pressure could be put on the coroner to hold the inquest. Does the Coroners Act need to be amended regarding the time period in which inquests should be held because no explanation was given for the delay?
All the necessary documentation was furnished but the inquest was not held for 18 months. I ask the Minister and his officials to examine the issue and if there is to be a delay that a reasonable explanation is given to the medical people involved and the family who are awaiting a date for the inquest.
We support this amendment in respect of the Coroners Acts. In general the lack of support for families and people who have to face inquests is dreadful. It is a very stressful process. Many families find it bewildering as they have not been party to an inquest previously, particularly when there have been tragic circumstances relating to a death within a family. There is a desperate need for a broader service. I welcome the amendment as a first step in that direction but I encourage the Minister to progress the wider view as soon as possible.
I share the concerns raised by Senator Trevor Ó Clochartaigh about the amendments in general. At very short notice we have been presented with a list which is longer than the Bill. While many of them do not appear to raise major issues I am concerned at having to debate them without the opportunity to consult with various interest groups, take advice and vote on them today. Similarly, we may well raise issues on Report Stage. In general, it is a positive Bill, particularly in regard to the family law aspects and opening up reporting in the system should help to greatly improve confidence and transparency in family law. I wish we had a longer period before Committee Stage and I hope Report Stage does not appear on the schedule for next Tuesday or Wednesday. I urge that sufficient time is allowed between now and Report Stage in order that we can reflect on the issues properly.
Perhaps I can make a general comment. There is a series of different proposals contained in these amendments which have widened the scope of the Bill. I did signpost that we would do this on Second Stage. Much of what is being done is tidying up areas of law that need to be tidied up and addressing issues that have been long ignored. It has proved possible with the assistance of the Attorney General's office to bring these matters into the House today. Of course, there will be an opportunity after today to consider them for Report Stage. I do not want to mislead Members but we are on a tight timeframe because I am very anxious that the legislation is enacted before the Houses adjourn for the summer recess. There are substantial provisions in these which are very much in the public interest and which will be of assistance to many individuals, even the court jurisdiction issue, in so far as it may save people legal costs.
I apologise to Senators if they have not had enough time to consider all the amendments. Very substantial concentrated work has been undertaken by my departmental officials and the Attorney General's office to facilitate us progressing these issues at this stage. Some of the issues we need to address are in dereliction such as the issue in relation to coroners. On the substance of that, Senator Ivana Bacik raised an interesting issue on which I will reflect. There is a concern to ensure that if there is a tragedy and somebody dies there is not a multiplicity of family members seeking legal representation. It does not require marital breakdown for that to give rise. There could be conflict within families over the circumstances. There could be parents and five or six brothers and sisters of an individual who has lost his or her life and the State simply could not afford to provide legal advice to every family member in those circumstances. Of course, any lawyer appointed would have a duty to assist the coroner in the deliberations they undertake and one would assume would make submissions of relevance to any issue surrounding the death of an individual. I will certainly reflect on the issue raised by Senator Bachik but it could open a vista that could create enormous legal expense and make coroner court hearings unnecessarily prolonged and expensive. We need to find a balance.
I will come back to Senator Colm Burke on an issue he raised previously and again today, that is the delays that can occur in inquests being held, as sometimes happens, because there is a pending criminal trial or there can be other reasons. I accept that where there is a delay it would be helpful to families if the reason was articulated. I would like to reflect on that issue. I thank Senators for their general welcome for our addressing the particular issue that these amendments address.
I thank the Minister for saying he will consider the issue I have raised. I am not suggesting that a multiplicity of family members should be represented, far from it. What I am trying to do is pre-empt a situation where coroners are faced with a multiplicity of requests. It is sensible that one application would be granted but how the coroners decides is the question. In most cases, presumably an agreed family member would come forward to make the application but where there is a conflict, tension or a dispute there may be problems that we need to anticipate in the legislation.
Section 3, as amended, agreed to.
Government amendments Nos. 7, 8, 13 and 14 are related and may be discussed together by agreement.
The purpose of these drafting amendments is to improve the text of the provisions of sections 5 and 8 regarding orders that can be made by the court in regard to press attendance and reporting.
Government amendment No. 8:
In page 6, to delete lines 30 and 31 and substitute the following:
"and any such order may, with regard to any restriction, contain such conditions as the court considers appropriate.".
Government amendments Nos. 9 and 15 are related and may be discussed together by agreement.
The main purpose of these amendments is to insert a provision expressly requiring the court from making a decision regarding press attendance or reporting at family law or child care proceedings, to take account of the views of the parties to proceedings and any child to whom the proceedings relate. The need for this amendment was raised in a submission from the Children's Rights Alliance, whom I thank for drawing this matter to my attention. A couple of days ago the issue was raised by the Ombudsman for Children.
The Minister is well aware that concerns have been expressed about the substantive provisions in section 5 by family law practitioners, particularly practitioners who work in courts where issues concerning children are raised. I am very glad to see this amendment put forward at the behest of the Children's Rights Alliance as it gives the necessary criteria to a judge in making a decision as to whether the press shall have access. I am aware that practitioners, particularly outside of Dublin, are concerned that notwithstanding the very carefully drafted provisions, there might still be sensitive material that ultimately is identifying of a child or of parties to proceedings that could still be published. The Minister, as a very experienced family law practitioner, is well aware of that.
The amendment greatly improves the situation by making express provision that the views of parties, or of any child to whom proceedings relate, is capable of forming their views will be taken into account.
Senator Trevor Ó Clochartaigh: I have no major issue with the amendment. Perhaps this is the right place to mention the recently launched report by Women's Aid to the Minister because it mentioned the facilities at Dolphin House. In many cases the women who attend Dolphin House seeking barring orders, etc., find the experience incredibly intimidating due to its retrograde facilities. Prior to a hearing women must sit straight across from the person they are seeking the barring order against in the waiting area.
We can take into consideration this type of an amendment. However, we must also take into consideration the facilities that are available in order to ensure that the amendment can be lived up to in practice. The report by Women's Aid, and the testimony given on the day of its launch, was a damning indictment of the situation in Dolphin House. Perhaps the Minister will comment on the matter. Does he intend to improve the facilities?
I strongly welcome the inclusion of the new provision. It is important to increase the visibility of family court proceedings as it will improve confidence and reassure people that there is consistency across the board. The provision will shine a light on what has often been a very secretive area of Irish law. However, it is essential that we have watertight provisions to protect people's identity, particularly of children and families involved in cases. The Minister mentioned the Children's Rights Alliance. Barnardos strongly welcomed the Bill but expressed the concern that there is a risk that children could be intimidated and discouraged from testifying by having too many members of the press present or being worried about their identify being exposed. I welcome the provisions and I am glad that the Minister has taken those concerns on board. Between now and Report Stage I will consult the children's organisations again to see if they have any other suggestions. Today, he has put forward a good and comprehensive list and I welcome it.
Does the Minister wish to respond?
Yes, quickly. I thank Senators for their supportive comments.
It was always my intention, after we published the Bill, and I think I said it in my speech, to give people an opportunity, particularly people who work in the areas and organisations with an interest in the areas, to come back to us with their observations on the provision. I am conscious of the need to provide a proper balance, of the need to protect the best interests of children, and of the need to ensure that we have a scheme that does not result in information being published that should not be published, or indeed that it does not create pressures that would inhibit individuals who need the assistance of the courts from taking court action.
The difficulty here has always been to strike a balance because there is a risk that we could, in attempting to give some additional access to courts in these areas and creating a degree of transparency, make it so conditional that after the legislation is enacted that cases continue virtually automatically to be heard in private. It was important to find the right balance. I am very appreciative for the various submissions and comments that we have received. I hope that we have now, in a sense, tidied up aspects that gave rise to concern. The provision is positive. We will have to wait and see if the Bill is enacted with the provision, not further amended, and how it works in practice. That is an important issue. We need some insight into that and I hope that we now have the balance right.
We cannot have a system where, because it is so conditional, every family law and child care case, virtually automatically, takes place in private. We also cannot have a system where everything is heard in public in circumstances where individuals are so stressed that they could not cope with reporters in a court and where a child's best interests or welfare could be detrimentally impacted upon.
Of course we must have very careful rules with regard to publishing. One of the things that has occurred to me that would be very useful in the context of dealing with matters is that following the enactment of the legislation, there could be some agree protocol with media outlets as to how they will report family cases so as to ensure that there is a degree of consistency in non-disclosure of sensitive information or of anything that could identify individuals. That would be an additional positive development if that could come about.
I hear what was said about Dolphin House. If I had my way, and if I had an unlimited sum of money, I would have dedicated new courts built across the country providing all of the necessary facilities, all of the consultation rooms, back-up mediation services, welfare services and judges specially appointed due to their specialist skills in these areas. That would mean we would have both the personnel and the buildings. However, we are operating in an environment where there is very limited funding available to provide all of the additional consultation services in Dolphin House. The provision of the inhouse mediation service has been a big step forward. Principally, it assists estranged parents, be they married or unmarried, to resolve issue relating to children. That is a great step forward.
Unfortunately, I cannot give guarantees on when the structure of our courts system will change and provide all of the adequate 21st century facilities that should be there because we are hamstrung by our financial capacities. As Minister, I will do what I can in this area but I do not want to hold out hope or mislead anyone on what is possible. Of course, the court structure will become a further issue of discussion as we travel the route of consultation in advance of providing a separate family court structure. It will take some years before the State is financially able to provide the type of desirable facilities that can be found in other countries such as Australia and some parts of Canada and the United States. In some parts of the UK work has been undertaken, particularly in the county and magistrates courts, to provide better facilities. I am very conscious that many have complained about facilities in the UK at the moment. I am afraid that is issue of court facilities is one to be addressed on an incremental basis. It is not an issue of direct relevance to the Bill but it is an issue that is of relevance to individuals who are engaged in family disputes.
On that point, I appreciate the Minister giving us latitude to discuss the matter. The Women's Aid report painted a chronic picture of what happens in Dolphin House. Our fear is that justice will not be seen to be done there because of the fear and intimidation experienced by the women who enter those buildings. They are literally afraid of their lives because of the facilities. It would appear to be a specific situation that needs to be addressed. I appreciate that the Minister is constrained financially but I call on him to relieve the situation so that justice can be administered in a fair manner and the women who must enter the building do not feel intimidated.
I will ask the Courts Service to examine the matter.
Go raibh maith agat.
I thank the Minister.
Amendments Nos. 10, 44, 48 to 50, inclusive, 54, 60 to 62, inclusive, 64 and 68 to 70, inclusive, are related and may be discussed together by agreement.
I move amendment No. 10:
In page 8, between lines 3 and 4, to insert the following:
“6. Section 133 of the Personal Insolvency Act 2012 is amended by the substitution of the following subsection for subsection (4):
“(4) A register maintained by the Insolvency Service shall remain confidential at all stages.”.”.
The amendment arose out of discussions that the Fianna Fáil group had with Mr. David Hall. He is well known to Members of the House because of his advocacy work on behalf of mortgage holders. He raised a concern with us about the public availability of information on people who have had to avail of the insolvency service. He has worked with families in this situation and is concerned that making their names publicly available will deter people from availing of the insolvency provisions in the first place.
This is the reason Fianna Fáil has tabled this amendment. While that information of course must be available to lenders and to those who have a genuine interest, personally I do not understand the reason it necessarily should be available to one's next-door neighbour or someone else who may have a nosy rather than a necessary interest in someone's personal circumstances. It is difficult enough for people to be obliged to avail of insolvency arrangements in the first place. The procedures that have been put in place by the Government set quite a high hurdle and give the banks and the lenders a veto in the first instance. Consequently, as matters stand, it will be a quite stressful process for families to avail of insolvency and I do not understand the reason the Government would wish to add to that by putting out in the open, people's financial position for all to see. The reason Fianna Fáil has tabled this amendment is to ensure the type of privacy Members have been discussing in other aspects of the Bill is extended to families who are suffering from mortgage and debt distress.
I note for the record that from amendment No. 26 onwards, Sinn Féin reserves the right to introduce amendments on Report Stage because we believe sufficient time has not been given to consider them.
I will deal first with the amendment tabled by Senator Darragh O'Brien and then with the other amendments that are being discussed together. As Senator Power stated, the purpose of amendment No. 10 is to delete the existing provision in section 133(4) of the Personal Insolvency Act 2012, which provides that the public may inspect the insolvency registers at all reasonable times and to insert a new provision that provides that the registers shall remain confidential at all times. Section 133 of the 2012 Act provides for the establishment by the Insolvency Service of Ireland of registers of insolvency arrangements, debt relief notices, debt settlement arrangements, personal insolvency arrangements and protective certificates. The registers will be in electronic form and members of the public may inspect a register and may take copies of or extracts from entries in a register. While the name of the person will be posted on the registers, the full details of the debt arrangements will not be available to the public.
Registration of the grant of a protective certificate or the fact that a person has been granted a debt relief notice, debt settlement arrangement or personal insolvency arrangement is a necessary feature of the insolvency legislation. To protect the constitutional rights involved and to prevent potential actions for judicial review, the Act makes provision for enhanced oversight by the court of the new debt resolution procedures. This court involvement has the significant benefit to the debtor of providing protection from enforcement actions by creditors either during the negotiation period or during the lifetime of the arrangement.
The granting of a protective certificate must, to have its full effect, be registered in the appropriate public register. Likewise, the successful conclusion of an arrangement also must be recorded. This is normal in other jurisdictions and I am of the view this neither imposes a significant burden nor exposes a debtor to shame. Moreover, the decision to seek to participate in a debt resolution process of course is theirs alone. The provision for public register of insolvency arrangements is common in many countries, including the United Kingdom. Indeed, the new European Union insolvency register has a requirement for the interconnectivity of public insolvency registers. I should also mention the register of bankruptcies has existed in this State for a very long time and, consequently, in the circumstances, I cannot accept the Senator's amendment.
Amendments Nos. 44, 48 to 50, inclusive, 54, 60 to 62, inclusive, 64 and 68 to 70, inclusive, provide for a number of amendments to the 2012 Act in respect of the recording of information on the insolvency registers. They are required to provide greater clarity with regard to the recording and removal of information from the registers maintained by the Insolvency Service of Ireland. The amendments also seek to improve the presentation of the Act to provide consistency of approach. The purpose of amendments Nos. 48, 60 and 68 to sections 43, 83 and 122, respectively, of the Personal Insolvency Act 2012 is to address omissions in the Act. At present, there are no provisions for the appropriate court to inform the Insolvency Service of Ireland of its decision to terminate a debt relief notice, a debt settlement arrangement or a personal insolvency arrangement, respectively, although the Insolvency Service of Ireland is to be obliged to remove information from the register on termination and therefore must be aware of the court's decision. The proposed amendments address these lacunae by the insertion of new subsections that provide for the necessary notification by the appropriate court to the Insolvency Service of Ireland and for the recording of the termination on the appropriate register. This is to the benefit of an individual who has exited a debt settlement arrangement.
Amendment No. 49 to section 45 of the 2012 Act is a technical drafting amendment to improve the presentation of the section. The amendment addresses the removal of information from the register of debt relief notices following a termination by providing that the Insolvency Service of Ireland shall remove all information from the register within three months of receipt of a notification of the termination of the debt relief notice, DRN. I am advised by the Parliamentary Counsel that this is better placed in section 45, which deals with the effect of termination of DRNs. Amendment No. 50 to section 46 of the 2012 Act is a technical drafting amendment that is required to ensure consistency of approach throughout the Act. The requirement to remove information "without delay and, in any event," is inconsistent with the requirement on the Insolvency Service of Ireland to so do within three months and again, this is an amendment to the benefit of debtors who have availed of the mechanisms under the Act.
Amendments Nos. 54 and 64 to sections 61 and 95 of the 2012 Act, respectively, are addressed to issues in respect of the protective certificate process. In paragraph (a) in both cases, the amendments clarify the information to be provided to the court in the case of an application for a protective certificate in connection with a debt settlement arrangement, DSA, and a personal insolvency arrangement, PIA, respectively. A similar amendment is being made to section 31 in the related amendment No. 44. The amendments in paragraph (b) in both amendments set out more clearly the recording of the issue of a protective certificate in the register of protective certificates of any extension of the protective certificate period, if applicable, and the date on which the protective certificate ceases. The amendments also make clear that within three months of the date on which the certificate ceases, the Insolvency Service of Ireland must remove the information from the register of protective certificates.
Amendments Nos. 61 and 69 propose to insert new subsections into sections 85 and 124 of the 2012 Act, which provide for the removal of the debtor's information from the register of debt settlement arrangements or register of personal insolvency arrangements, as the case may be, within three months of the date on which the DSA or PIA would have expired, but for the fact that the arrangement in question was terminated prematurely. Amendments Nos. 62 and 70 propose to amend the text of sections 86 and 125 to clarify the obligation on the Insolvency Service of Ireland to record the successful completion of a DSA or a PIA on the register of debt settlement arrangements or the register of personal insolvency arrangements with the information relating to the arrangement to be removed from the register within three months of the date of receipt of a notice of successful completion of the agreement. I should mention I am considering further amendments to the Personal Insolvency Act on Report Stage. These include technical amendments relating to the debt relief notice, the debt settlement arrangement and personal insolvency arrangement, as well as amendments relating to appeals and the functions of the Insolvency Service of Ireland.
I accept the point, as the Minister stated at the outset, about the need to inform creditors that someone has been obliged to seek an insolvency arrangement. As the Minister indicated, people who are owed money by that person of course need to know what is the position and must be put on notice regarding the protective order to prevent them from being able to move against the borrower. However, I still do not understand the logic essentially for naming and shaming people by having a public register into which anyone can dip and find out whether neighbours, colleagues or associates have been obliged to avail of insolvency arrangements. It appears to be adding additional stress and worry onto people who are in financial distress.
This issue has been raised with Fianna Fáil Members by groups who represent mortgage owners, including the Irish Mortgage Holders Organisation established by David Hall, who has been working on this issue for years. He told us his genuine view was that people would be put off availing of the insolvency arrangement by it and that would be a shame. I still do not get the necessary public interest that dictates it would be so. I absolutely understand the reason creditors must be put on notice but even on foot of the Minister's response, I am not clear as to the reason the public necessarily has a need or an interest in knowing who has availed of the insolvency arrangements.
I will respond briefly by noting it is not about naming and shaming anyone. For example, one might ask what is the purpose of the protective certificate.
The protective certificate is to protect the debtor from being sued by individuals who are owed money during the period between when the protective certificate is granted and the engagement with the personal insolvency practitioner trying to negotiate a resolution of the debt situation of the individual debtor between the debtor and the creditors and trying to bring about a debt settlement resolution or to enter into an arrangement. This is a protection because, at that stage, unless this arrangement is put in place there may well be creditors who do not know whether someone is engaged in this arrangement. It may well be that the initial phase would involve the personal insolvency practitioner meeting with the debtor to go through all of their debts and to present a proposal to creditors having regard to their income and assets and personal financial needs for themselves or their family. Creditors might not otherwise know. One could end up with a debtor, within two or three weeks of engaging with a personal insolvency practitioner, being the happy or unhappy recipient of multiple court proceedings. Once this measure is in place and one has a protective certificate, before anyone issues proceedings against someone to recover debt, they will be able to consult the register and see whether the person he or she is going to sue is the beneficiary of a protective certificate, because if he or she is then there is no purpose in issuing proceedings.
This is a protective measure in the context of protecting individuals and also if a personal insolvency arrangement, PIA, or debt settlement arrangement, DSA, is put in place it provides protection during the period of the financial resolution arrangements. It is important that information is available but the information does not disclose the extent of any individual’s debts. It does not disclose the nature of the arrangement he or she has entered into. The measure does reflect the practice in other jurisdictions dealing with debt settlement resolution issues. For many years we have published the names of individuals who are bankrupt. There are issues also with regard to individuals who are within that process who may not be owed any money by a debtor – it may be an institution or an individual from whom the debtor seeks to borrow money - and protecting them in knowing that someone is going through a debt resolution process and information can be accessed. This is important information not just for creditors, but for others with whom someone who is participating in a debt resolution process may engage.
There is a whole series of reasons for the measure; it is not about naming and shaming. It reflects a consistent approach that is in other European jurisdictions. During the course of the Irish Presidency, I have been engaged in dealing with the new proposed insolvency regulation which seeks to ensure European-wide recognition of debt settlement arrangements that do not involve bankruptcy and to ensure that there is transparency to the entering into these arrangements for the very reasons I have just mentioned right across Europe. Part and parcel of that architecture envisages that there would be this type of register maintained and that if I am doing business in, for example, Belgium, and there are individuals in Belgium who are willing to give me credit, they can check a register as to whether I am an individual who is currently subject to and engaged in a debt resolution process. It would give them an insight into the extent to which perhaps I should be given credit. There are very important reasons that there is a need to maintain this type of register.
Amendments Nos. 11 and 16 are related and may be discussed together. Is that agreed? Agreed.
The Attorney General has advised that the amendments are necessary to improve the drafting of the provisions in section 6 and 9 of the Bill regarding liability for offences committed by bodies corporate.
I move amendment No. 12:
In page 9, between lines 14 and 15, to insert the following:
“(b) Not withstanding paragraph (a), bona fide representatives of the press shall be required to undergo an accreditation process to be provided for by the Minister by way of regulation.”.
We flagged our concern on the issue and the section with the Minister on Second Stage. We do not believe he has adequately addressed the concerns and therefore we have tabled the amendment. I put it to the Minister that the legislation is somewhat light on detail and in terms of safeguards. We believe there ought to be greater safeguards as to the reporters who would be permitted to attend such proceedings and the manner in which they would be able to report. While the safeguards in sections 5 and 8 are welcome and comprehensive, I note that the meaning of "bona fide representatives of the press" is not defined in the Bill nor does the Bill set out the terms under which a member of the press may attend a family or child care case. The term “bona fide” should have a clear basis. We must be sure that those attending the hearings are sensible members of the press who will take a considered and reasonable approach to the cases and that they would be sensitive to the importance of protecting the people involved and their identities, in particular where it applies to children.
I note that the concern is shared by the children’s body, Barnardos. I received a submission from it to that effect.
Barnardos is anxious that permitting multiple journalists access to the court hearing will increase the chance of the child and their family being identified by themselves or others as various versions of the same case will be reported. Comprehensive safeguards must be in place to ensure no identifying features of the case are released and attention is focused only on the significant facts and outcomes. The heads of Bill clearly state that it will be an offence for any information to be published or broadcast that would enable the parties of the case to be identified. Barnardos recommends that the penalties imposed be sufficient to ensure compliance.
Barnardos also wants to highlight the risk that a child may become aware of the media interest in their case and retract or change their statement in light of this. This could alter the outcome of the case. Having the media present could also potentially act as a deterrent for children to report incidences of abuse or neglect to their social worker because they fear their case would be identified. Given the sensitive nature of these cases, children must be assured that their privacy will be protected by any media reports of their case. To do otherwise will undermine trust between the families concerned and State bodies.
To conclude, Barnardos does favour greater transparency in how cases are dealt with but seeks to ensure that the legislation passed is watertight in terms of protecting the identities of the children and families involved in individual cases.
We share Barnardos’ concerns and we hope the Minister could clarify his rationale for not clarifying that aspect of the legislation. An inordinate number of people could lay claim to being bona fide members of the press and how we monitor who is will be difficult. It seems that the most sensible and practical way of ensuring the system is well monitored and that the legislation will be, as Barnardos’ put it, watertight, is a form of accreditation. It is not unusual to put in place safeguards of this kind. Accreditation is a perfectly reasonable, practicable and inexpensive way of ensuring that those who are reporting on such sensitive cases are aware and conscious of the substantial risks which would exist were the information and the identities of the people involved, in particular relating to children, to be released into the public domain. The legislation should be watertight and we must ensure the confidentiality of identities remains protected. I hope the Minister will outline how he intends to ensure that objective is reached.
The Bill does not take a prescriptive approach to regulating members of the media who may or may not be permitted access to relevant child care, family law and adoption proceedings. The Bill leaves it to the court to allow bona fide members of the media to be present in certain circumstances. The formula “bona fide members of the media” has been used in other legislation. There is nothing one can do about that. It is a matter for the individual judge to be satisfied as to the bona fide nature of representatives of the press in this respect. The same approach is used in many legislative provisions, not least of which are those relating to criminal proceedings in serious sexual offence cases, where there is express provision which details the circumstances of attendance of bona fide members of the media. The experience to date is that the approach works and I am happy that it is the correct approach in the circumstances of these provisions also.
In the context of the Senator’s amendment, he says that he wants bona fide representatives of the media to be required to undergo an accreditation process to be provided by the Minister by way of regulation. I can just imagine members of the press getting into a happy state of excitement if suddenly it was to fall to the Minister for Justice and Equality to determine which particular member of the press could attend which particular court case.
I would be immediately accused of interfering with press freedom and I do not think that is appropriate. This phrase, "bona fide members of the media", has given rise over decades to no issue of difficulty or confusion. Clearly, if someone attended a court and a judge was of the view that he was not a bona fide member of the media, or if a litigant in that court with a family case announced the person who was pretending to be a bona fide member of the media was actually a family member or nosy neighbour who was there to see what was going on, the court would be well able under the terms of the legislation to deal with that issue.
I appreciate Senator Ó Clochartaigh's concern on this and I said earlier that representations have been made to me by members of the legal profession acting for children or guardians ad litem and who are concerned about press access. We must strike a careful balance in terms of allowing scrutiny by the public of such proceedings while ensuring there is protection for the rights of the children concerned in particular. I share the Minister's view, however, that it would not be appropriate or in line with general press freedom to have an accreditation process for bona fide representatives of the press. My concern is that interest groups would masquerade as press seeking to come into a courtroom to report. In such an instance, I would be confident a judge could make a judgment and exclude those who are not bona fide representatives such as the nosy neighbour or someone from an interest group with a particular ideological viewpoint on the conduct of family proceedings. I share that sort of concern but I do not see another way of dealing with it other than the way we set out in the original Bill that there would be bona fide representatives of the press and the judges must decide who they are. I said earlier there is a real concern in courts in small towns outside of Dublin that identifying material would be published. Against that, a judge of the District or Circuit Court in a small town will know who is a bona fide press representative in that town. It is a valid concern but this is the only way to deal with. The amendment is certainly not the appropriate way to address the issue.
I disagree with both the Minister and Senator Bacik. As someone who worked in the media for quite a number of years, I know there are many people who are members of the National Union of Journalists, NUJ, from many different areas who would be accredited as journalists. I do not agree a District Court judge would know all of the journalists or those who would hold an NUJ card in an area. I cite the example of these Houses, where there is accreditation for any journalist who works here. No journalist can walk in the gates without some form of accreditation. Some journalists try to blag their way into the All-Ireland final and will not get away with it because they must have accreditation in advance if they want to report on a GAA match. If the GAA and the Houses of the Oireachtas can put in place a system of accreditation, I cannot see why the Courts Service cannot have a similar system of accreditation where a bona fide person interested in covering court cases could apply to the service for accreditation as a reporter. It would be easy to implement and the media are used to such protocols being put in place. As someone who worked in the media for a number of years, we had to apply for accreditation for major events such as concerts or matches. It is no big deal and it would be a positive step to put this safeguard in place. I will, however, take on board the Minister's note on the wording of regulation and, based on the fact, we might look at it again on Report Stage. I will withdraw the amendment, but the principle must be examined.
Amendments Nos. 20 to 22, inclusive, are related and will be taken together.
These are technical amendments to amend references to section 33 of the Courts (Supplemental Provisions) Act 1961, to the Hire-Purchase Acts, and to increase the jurisdiction limits on hire purchase matters under the Consumer Credit Act 1995 in order that they will be in harmony with the increases proposed in this Bill.
This provides for the appointment of two additional judges to the Supreme Court. This is an important proposal because there are substantial arrears of cases to be heard in the Supreme Court. There is a list of in excess of 70 cases outstanding by way of appeal that are described as priority cases. The Chief Justice has estimated it will take between three to four years to complete all outstanding appeals. I welcome the fact the Supreme Court is now sitting more regularly in divisions. That way two appeals can be heard simultaneously by different members of the Supreme Court. I also welcome the fact the Supreme Court will sit in September to help tackle that backlog.
The Government's programme includes a provision to establish a general court of appeal, which will have a court of civil appeal and the current Court of Criminal Appeal within it. I hope shortly to have in this House the legislation for a referendum on that matter. If we create such a court, it is important that everything necessary is done to address the backlog that has developed in the Supreme Court. If we have the expected referendum in the early autumn, it will still be some time before the new court is in place because substantive legislation will have to be enacted on foot of the referendum. This amendment is intended to facilitate the appointment of two additional judges to the Supreme Court to provide for additional numbers of divisional sittings to help address the backlog that has accumulated and to ensure appeals are heard within a reasonable time. I hope the House will support the proposal.
I welcome the provision to facilitate the appointment of two additional judges to the Supreme Court. As the Minister outlined, there is a substantial backlog in dealing with cases. While I am open to correction, I understand that in a large number of appeals, the Supreme Court is finding that it must provide substantial assistance to litigants to ensure fair and proper procedures are followed and everyone is given a fair hearing.
Once the backlog of cases has been cleared and a court of civil appeal established, will we be required under this provision to continue to have nine Supreme Court judges? Will it be possible to review the matter at some stage? What is the constitutional position in that regard?
While the Minister may not want me to raise another issue, I propose to do so because it is an issue of concern for the legal profession. I do not accept the response I received from the Department when I raised the issue in the House last week. The appointment of two additional Supreme Court judges is welcome. A problem arises, however, with regard to costs being taxed in the High Court. Fairness must apply to people who provide legal services to those who are involved in litigation. Last week, I proposed that a third taxing master be appointed and argued such a measure would be cost neutral. The Department's response in which it indicated the delay in hearing cases on the taxation of costs was only ten weeks is utterly incorrect. I have personal experience of the problem. While I accept the Government is introducing measures to address the issue, many smaller legal practices, particularly in rural areas, are experiencing financial difficulties because insurance companies are using the delays in the system. I accept that the issue is not related to the subject matter of the amendment.
The Senator should speak to the amendment.
It is a matter of concern which cannot be ignored.
The only issue the Senator raised that is of relevance to the amendment was whether, under this proposal, we will inevitably and forever more have two additional members of the Supreme Court. The amendment allows for the appointment of an initial two members to the Supreme Court. If, some years from now, it transpires that the backlog issues have been resolved - the new court of appeal will inevitably reduce the number of appeals that go before the Supreme Court - it will be for a future Government to take a decision on whether it is necessary to appoint the full quota of judges to the Supreme Court, as allowed in the amendment, or whether a reduced number will be appointed. I expect it will take some time to deal with the backlog issues. This is a separate issue but it is appropriate that a facility is put in place to appoint the additional two judges now.
The other issue the Senator raises does not arise under this Bill. I am aware of his concerns about the matter and I will follow them up further.
The Law Reform Commission recently published a report on jury service, which includes a recommendation that legislative provision be made for the appointment of up to three additional jurors to deal with lengthy trials. The commission recommendation also proposes that the final jury that retires to make a decision in a case should be selected by ballot. This issue is of significance to lengthy trials involving fraud or other complex financial matters. Under current law, a jury consists of 12 members but a decision in a trial by ten members of a jury can be accepted. Currently, up to two members of a jury could become incapacitated or otherwise unavailable during the period of the trial without risk to the sustainability of the trial. However, during the period of a protracted trial, there is a risk that more than two jurors would become unavailable. Were this to occur, the trial would collapse.
I have accepted the Law Reform Commission's recommendation that legislative provision is required to provide against such a possibility. The provision before the House proposes to amend the Juries Act 1976 to insert a new section 15A to provide that, on application by the prosecution, defence or in its own motion, the Circuit Court or Central Criminal Court can order that up to 15 people be selected to serve as jurors. The judge has to be satisfied that the trial is likely to last for more than two months. If, before the jury is to retire to consider its verdict, there are more than 12 jurors remaining on the jury, a jury of 12 jurors will be selected by ballot.
I am also providing, by way of amendment to section 20 of the Juries Act, that where a jury has additional jurors, challenges without cause shown can be made by the prosecution or accused person or persons of up to eight jurors as opposed to seven jurors in a normal jury.
This is a sensible and practical provision, particularly given the prospect of long trials involving, for example, complex banking fraud or other such fraud. There is a concern to ensure we have a sufficient number of jurors available in such cases. I am conscious that there has been little research done in Ireland on the inner workings of juries. A former PhD student of mine, Dr. Mark Coen, has done a good deal of research on the quality of juror decision making. I wonder if the Law Reform Commission considered the alternative of having substitute jurors, as opposed to selecting up to 15 jurors, all of whom would sit as jurors during the course of the deliberations of the court and from whom 12 would be selected by ballot.
In terms of the quality of the attention individual jurors would pay, is it considered preferable to have a position where only 12 of the 15 jurors would ultimately be chosen? Would it be better to have the alternative model, under which one would have 12 jurors and up to three additional jurors who know they would only act as substitutes if some of the 12 jurors drop out? I do not recall whether the Law Reform Commission considered the latter option, which may be preferable in terms of ensuring jurors pay the necessary level of attention to proceedings. I have an open mind on the issue. Given the need to make some provision for the types of circumstances the Minister outlined, the proposal is a sensible one. My concern is to ensure it is the best solution.
This is a welcome development given that many criminal cases take a considerable time in the courts. Does the procedure for having an open ballot need to be defined in the Bill? Normally, we select 12 jurors. Does this issue need to be clarified through definition, perhaps in a subsection?
The ballot concept is well understand. Basically, one draws lots rather than holding a vote to choose who will be in the jury. I will, however, reflect on the issue raised by Senator Burke in that context.
The Law Reform Commission considered the option of having alternate jurors as opposed to a group of 15 jurors. It was concerned that if one were to have alternates or substitutes, two or three substitutes would not adequately focus on the evidence because they might doubt that they would be called into service. This is a case of six of one and half a dozen of the other.
We were very conscious, particularly with long trials, of the issues that could arise. For example, if a trial ran for six or eight months under our current system and if three jurors fell ill, the trial would effectively have to be aborted and started all over again with a fresh jury. Therefore, having considered what the Law Reform Commission had to say and because of the need to address this issue, we concluded that it was appropriate to implement the Law Reform Commission's recommendation. Obviously, if difficulties arise with it, the manner in which it is working can be monitored. If there are 15 individuals, all of whom think they may have to be engaged in making a decision, the commission felt that, on balance, they were more likely to fully focus on evidence than if we had 12 jurors plus three substitutes.
I have a question regarding the provision for up to three jurors to be discharged, with the jury then retiring to consider its verdict. Sometimes such a verdict might be arrived at relatively quickly but on other occasions, the deliberations might go on for a number of days. Let us imagine the situation in a court house during a trial which might have generated a significant degree of publicity. The balloting of jury members takes place and three members are selected to be discharged. Presumably, those members can then leave the court. Would the Minister be in any way concerned that the three discharged persons, who no longer constitute the jury for verdict purposes, might become the focus of media attention? The media might attempt to obtain information from them regarding discussions in the jury room and so forth. While it might be difficult for the three persons in question, would it not be more appropriate not to physically discharge them from the court setting so that there would be no danger of them being pursued by the media or others?
The Senator has raised an interesting issue. It would be important that jurors who were discharged did not engage in discussions with the media. I will certainly reflect on that matter. I am not sure if we could capture them in the context of a jury that might be sitting for many days. In circumstances where they were not involved in the deliberations at all, requiring them to stay within the precinct of the court building could give rise to problems, particularly if the trial has been a lengthy one. However, Senator Bradford has raised an interesting issue and perhaps we will reflect on it further before Report Stage.
Amendments Nos. 27 to 38, inclusive, are related and may be discussed together.
Amendments Nos. 27 to 38, inclusive, insert a new Part 7 into the Bill and are required to give effect to the transfer of the existing Office of the Official Assignee in Bankruptcy to the Insolvency Service of Ireland. When we were dealing with the Personal Insolvency Bill I indicated that if it was not possible to address this issue in that Bill, we would deal with in the Courts Bill. Unfortunately, due to lack of time in regard to finalising the Personal Insolvency Bill last year, it was not possible to provide in that legislation for the transfer of the Office of the Official Assignee in Bankruptcy to the Insolvency Service of Ireland as originally intended. I am anxious that this matter be dealt with as soon as possible to ensure the Insolvency Service of Ireland and the services of the Office of the Official Assignee in Bankruptcy are aligned and provided for in the Personal Insolvency Act 2012. To facilitate this, I am proposing to provide for appropriate additions to that Act by way of amendments to this Bill. I should mention that I intend to move some further amendments on bankruptcy on Report Stage. These relate to some remaining issues concerning the transfer of staff of the Office of the Official Assignee in Bankruptcy to the Insolvency Service of Ireland as well as some technical amendments relating to bankruptcy.
Amendment No. 27 provides for the interpretation of the new Part 7. Amendment No. 28 provides for the amendment of section 3 of the Bankruptcy Act 1988 by the substitution of new definitions of bankruptcy inspector and official assignee, to take account of the changes proposed in this Bill. Amendment No. 29 provides for the amendment of section 60 of the Bankruptcy Act 1988 by its deletion and the substitution of a new section 60, by the insertion of three additional sections which provide for the transfer of the staff of the assignee's office, for the delegation of the function of the official assignee and for the appointment of deputy official assignee. Section 60 provides for the functions of the official assignee, defines the relationship between the official assignee and the insolvency service's director, particularly in relation to the exercise by the official assignee of adjudicative functions but more generally in relation to statutory functions underpinning the assignee's conduct of a bankruptcy case. Subsection (3) provides for the official assignee to be independent in the performance of his or her functions.
The new subsection 60A sets out the provisions concerning the transfer of the staff of the Office of the Official Assignee in Bankruptcy from the Courts Service to the Insolvency Service of Ireland. It provides that the staff concerned shall be seconded from the Courts Service to the Insolvency Service of Ireland for a period of two years from the date of the commencement of this provision. On the expiry of the secondment period, each person seconded shall transfer definitively to the staff of the Insolvency Service of Ireland or exercise a right to return to a suitable vacancy in the Courts Service. The new subsection 60B provides for the delegation of the functions of the official assignee to other staff members of the Insolvency Service of Ireland. This is an important provision which is required to facilitate the management of cases by the official assignee in the future in response to the anticipated significant increase in the number of bankruptcies arising from the reduction in the bankruptcy period to three years. A delegation under the new section 60B will permit the person to whom the functions of the official assignee are delegated in respect of an individual bankruptcy arrangement case to handle the case from start to finish, including the execution of transfers of property. The provisions of this section will not affect the vesting of property in the official assignee. However, subsection (5) permits a person to whom the official assignee's functions are delegated to dispose of property that is vested in the official assignee under the Bankruptcy Act.
New subsection 60C provides for the appointment of a deputy to act for the official assignee in the event of a vacancy in the office or the temporary absence or incapacity of the official assignee. The subsection provides for the director of the Insolvency Service of Ireland to designate a deputy official assignee who will act in place of the official assignee in his or her temporary absence or while the position of official assignee is vacant.
Amendment No. 30 provides for the amendment of section 63 of the Bankruptcy Act 1988 to replace the reference to "rules of court" in section 63(b) with a reference to "regulations made by the Minister under this Act". Procedure relating to court applications in respect of bankruptcy and matters on which a court can give directions will continue to be regulated by rules of court. However, it is more appropriate, following the change of status of the Office of the Official Assignee in Bankruptcy from a court office to part of the Insolvency Service of Ireland, for other matters relating to the official assignee's functions to be regulated by the Bankruptcy Act and the Personal Insolvency Act and regulations made under those Acts instead of rules of court.
Amendment No. 31 provides for the amendment of section 69 of the Bankruptcy Act 1988 to include a regulation-making power to make provision for the manner in which the official assignee maintains accounts in bankruptcies and arrangements. This matter is currently provided for in Part 27 of Order 76 of the Rules of the Superior Courts. Amendment No.32 provides for the repeal of section 83 of the Bankruptcy Act 1988. The repeal arises as a consequence of the proposed amendment to section 17 of the Personal Insolvency Act 2012, which is proposed in amendment No. 36. Amendment No. 33 provides for the substitution of the existing section 84 of the Bankruptcy Act with new text, the purpose of which is to permit the unclaimed dividend account to be held in a bank other than the Central Bank and also to provide that the manner in which that account shall be kept shall be prescribed by regulations made by the Minister rather than by rules of court. The operation of the unclaimed dividend account maintained by the official assignee with the Central Bank under section 84 of the 1988 Act is currently governed by Part 28 of Order 76 of the Rules of the Superior Courts. Amendment No. 34 provides for the substitution of the existing section 144 of the Bankruptcy Act 1988 with new text, the purpose of which is to extend the section to cover regulations under sections 69 and 84 of the 1988 Act to make provision for the scope of such regulations. Amendments Nos. 35 to 38, inclusive, provide for the necessary amendment of the Personal Insolvency Act to take account of the extension of its remit, following the transfer of the official assignee's office. Amendment No. 35 amends section 9(1) of the 2012 Act to provide that the principal functions of the Insolvency Service of Ireland shall include the administration of the functions of the official assignee. Amendment No. 36 amends section 17 of the Personal Insolvency Act 2012 to provide that the Insolvency Service of Ireland shall keep accounts relating to the functions of the official assignee under the Bankruptcy Act 1988.
The amendment of this section gives rise to the deletion of section 83 of the Bankruptcy Act 1988.
Amendment No. 37 proposes to amend section 20 of the Personal Insolvency Act 2012 to allow for the power for the insolvency service to charge fees in relation to bankruptcy administration by the official assignee, since it is proposed that the office of the assignee will cease to be a court office necessary to provide a new statutory basis for the charging of fees in relation to the functions of the official assignee.
Amendment 38 provides for amendments to other enactments that will be necessary as a consequence of the transfer of the official assignee to the insolvency service. Subsection (1) amends section 32(3) of the Solicitors (Amendment) Act 1960 and refers to fees payable in accordance with regulations under section 20 of the Personal Insolvency Act 2012. Subsection (2) amends the eighth Schedule to the Court (Supplemental Provisions) Act 1961 on the transfer of a business from the Office of the Official Assignee in Bankruptcy to the new insolvency service. It is appropriate that the office relinquish its status as an office attached to the High Court and that the relevant provisions of the Court (Supplementary Provisions) Act 1961 be amended to remove reference to the office of the official assignee. In addition, since the official assignee's office would no longer be an office of the High Court it would not be appropriate that the business transactable in it be prescribed by rules of court.
Subsection (3) provides for the amendment of the Schedule to the Dormant Account Acts 2001 as the accounts held by the official assignee are no longer to be under the control of the court. It is proposed to amend Part 2 of the Schedule to reflect the change in status of those accounts. Subsection (4) amends section 2(1) of the Personal Insolvency Act 2012 to include a definition of official assignee.
Government amendment No. 32:
In page 15, after line 13, to insert the following:
“Repeal of section 83 of Act of 1988
28. Section 83 of the Act of 1988 is repealed.”.
Amendment agreed to.
Amendments Nos. 39 to 42, inclusive, 51, 53, 56 to 58, inclusive, 66 and 71 are related and may be discussed together. Is that agreed? Agreed.
These are technical drafting amendments required to improve the presentation of the Personal Insolvency Act 2012 and to correct errors in the text. Amendment No. 39 is an interpretation provision for the proposed new Part 8 of the Bill. Part 8 provides for a number of amendments to the 2012 Act. Many of the amendments are technical in nature and address errors in the existing text or improve the construction of the text.
Amendment No. 40 to section 8 of the 2012 Act amends the current requirement for two signatures to authenticate the seal of the insolvency services by now providing that either the signature of the director or a member of staff of the insolvency service authorised by the director to act on his or her behalf will suffice.
Amendment No. 41 changes the mandatory requirement of section 13(1) of the 2012 Act to a discretionary one. It has come to light that the current construction used in the Act is not appropriate for the requirements of the insolvency service. I am advised that the best approach is for the service to have discretion in regard to this matter.
Amendment No. 42 is a technical drafting amendment recommended by the Office of the Parliamentary Counsel to better describe a qualifying debt for the purposes of interpreting Chapter 1 which deals with debt relief notices of Part 3 of the Act.
Amendment No. 51 is a technical drafting amendment required to address an error in section 54 of the Personal Insolvency Act. Amendment No. 53 is a technical drafting amendment required to address an error in section 59 of the Act. I am advised by Parliamentary Counsel that the proposed amendment is required for consistency with similar provisions elsewhere in the Act.
Amendment No. 56 is a technical drafting amendment required to address the cross-referencing error in section 65. Amendment No. 57 is a technical drafting amendment required to improve the construction of section 72(1). The current text is repetitious as there is no need to repeat the purpose of the meeting as this is set out in section 70(1). The proposed amendment is modelled on the nearly equivalent section 109.
Amendment No. 58 proposed the deletion of section 73(3) which refers to voting by preferential creditors in the context of a debt settlement arrangement. No such provision exists in respect of the personal insolvency arrangement. I am of the view that this provision has no practical effect as a preferential debt is defined in relation to the Bankruptcy Act 1988 and in the DSA context this can only be a social welfare employee entitlement type debt or Revenue debt, such will either be an excluded debt or excludable debt, which, if the creditor consents, becomes a committed debt and is voted at the creditors meeting. The concept of preferentiality imported from the Bankruptcy Act has no real role here.
Amendment No. 66 is a technical drafting amendment required to address an error in section 102 of the Personal Insolvency Act. It makes clear it is the appropriate court not the insolvency service which issues the protective certificates.
Amendment No. 71 is also a technical drafting amendment required to address an error in section 194 of the Act which referred incorrectly to specialty judge instead of specialist judge.
Amendment agreed to.
The purpose of this amendment to section 27 of the 2012 Act is to clarify the roles of the approved intermediary, the insolvency service, during the debt relief notice process. The proposed amendment to subsection (10) ensures there is no confusion for debtors as to what agency, the service, the insolvency service or the approved intermediary, they are meant to be dealing with over the course of the three year supervision period which begins after a debt relief notice has been issued. Any such confusion could cause problems with notifying the insolvency service about changes in the debtor's circumstances or the debtor making payments to creditors.
This change will ensure that the debtor is not needlessly engaging an approved intermediary after the debt relief notice is issued as the approved intermediary has no further role after this point. It ensures there is no confusion for the debtor who should at this stage be dealing with the insolvency service directly. The proposed amendment to subsection (11) improves on the existing text to make it clearer which creditors are being referred to and the period to which the provisions relate. The proposed amendment to subsection (12) is a technical amendment to improve the text.
Amendment agreed to.
Section 34 of the Personal Insolvency Act provides that the debt relief notice remains in effect for three years from the date on which it is recorded in the register of debt relief notices. This period is called the supervision period.
Sections 34(2), 34(3) and 42 to 44, inclusive, provide for extension of the supervision period by the court, on application to it by the consultancy service, in certain specific situations.
Section 34(5) as currently worded provides for the notification procedure to the insolvency service and the approved intermediary by the registrar of the court of an extension to the supervision period. Deleting the reference to the approved intermediary in subsection (5) will ensure section 34 is consistent with the rest of the 2012 Act, taking account of the fact that the improved intermediaries have no further role following the issue of the DRM. This will avoid difficulties for approved intermediaries in the insolvency service.
In relation to the question of who keeps the debtor's file, over the course of the supervision period under the DRM the insolvency service not the intermediary manages these cases once a DRM is issued.
Amendments No. 46, 55, 59, 65 and 67 are related and may be discussed together. Is that agreed? Agreed.
The current provisions regarding the debt relief notice, DRN, and personal insolvency arrangement, PIA, in sections 35(1)(e), 96(1)(f) and 116(3)(f) - but not as regards the debt settlement arrangement process in sections 62(1)(c) and 79(3)(e) - prevent a hire purchase creditor from repossessing hire purchase goods while a DRN or, as applicable, a protective certificate or PIA is in effect in respect of the debtor. This would be the case even though title to the hire purchase goods would remain vested in the hire purchase creditor and is not passed to the debtor. This could obviously lead to anomalous results where a debtor retains possession of hire purchase goods and refuses to make payments and where the creditor is prevented by the legislation from repossessing those goods until the end of the three-year supervision period relating to the DRN or, as applicable, the end of the period in respect of the protective certificate or PIA.
Amendments Nos. 46, 55 and 59 are designed to bring the DRN and PIA provisions into line with debt settlement arrangements in order to ensure that hire purchase creditors will not be unduly prevented from repossessing hire purchase goods from defaulting debtors. Amendment No. 65 to section 96 and amendment No. 67 to section 116 are related technical drafting measures to ensure consistency in the legislation.
Again, this is a drafting amendment. The proposed additional subsection would require the insolvency service to notify the specified debtor and those creditors specified in a DRN in cases where it applies to the court under section 39 to amend a DRN.
The objective of this amendment is to address a significant issue that may hinder the feasibility of the personal insolvency practitioner's role in practice. Were a personal insolvency practitioner to take on any more than a handful of cases, he or she could not manage them without some assistance from another person, for example, a staff member. The amendment is designed to address this by allowing for appropriate delegation of work related to a case which is clerical, secretarial or administrative in nature.
Section 93(2), which relates to an application for a protective certificate in the context of a personal insolvency arrangement does not, unlike the corresponding provision in section 29(2), concerning DRNs, and section 59(2), concerning DSAs, mention any fee to be forwarded with the documents. The proposed amendment in paragraph (a) mirrors the DSA arrangement at section 59(2). Accordingly, it is required for consistency.
The proposed amendment in paragraph (b) amends a cross-referencing error in section 93(2)(c). The proposed amendment in paragraph (c) to section 93(2)(c) by the addition of a new paragraph is intended to make it clear that both a statutory declaration relating to a prescribed financial settlement and the declaration in writing regarding the debtor's co-operation with the MARP process are explicitly included in the list of documents required to accompany the application form for a protective certificate in the case of a PIA. The current wording in section 93(2)(c) could lead to confusion as to what is required in order to show co-operation on the part of the debtor with the MARP process.
This is a technical amendment to correct an error in the amendments to section 38 of the Courts of Justice Act 1936 which were made by section 64(e) of the Civil Law (Miscellaneous Provisions) Act 2011.
I move amendment No. 73:
In page 15, after line 13, to insert the following:
INADMISSIBILITY OF SEXUAL ASSAULT COMMUNICATIONS
19. The Criminal Evidence Act 1992 is amended by the insertion of the following sections after section 30:
“31. (1) Where a person under the age of 18 gives evidence as a witness in any criminal proceedings, evidence disclosing the content of communications made by that witness in confidence in the course of sexual assault counselling shall not be admissible save by order of the trial court.
(2) In determining an application for an order admitting such evidence, the court shall have regard to the following requirements:
32. For the purpose of section 31, sexual assault counselling shall mean communications or notes thereof, whether made contemporaneously or subsequently, made between the relevant witness, being the victim of a sexual assault, and a person—
I tabled this amendment in the utmost good faith and I thank my colleagues in the Independent Group for their support for the amendment.
The issue of court ordered disclosure of complainants' confidential records, be they medical, psychiatric or therapeutic and be the complainant an adult or a child, in the absence of any legislative guidelines is one of considerable and pressing concern. I have no intention of undermining the urgency and necessity relating to adult complainants but I see this Bill as an opportunity to introduce legislative provision and clear practice for the disclosure of sexual assault counselling communications regarding children who are witnesses in criminal trials.
I note the work in this regard and the calls to action by many children's and human rights NGOs, civil society organisations and practitioners in the field of specialised assessment and therapeutic services for children who have been sexually abused. I am grateful, in particular, for the support and advice I have received from Rape Crisis Centre Ireland and Children at Risk Ireland in the context of assisting me in understanding the current lacuna in the protection of confidential therapy notes and records and developing the legislative solution proposed in the amendment.
I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in child sexual abuse cases, the right of the child witness to privacy as well as his or her right not to be revictimised or unduly traumatised by the criminal justice system and the public interest. It is wholly compatible with Irish constitutional law, Ireland's obligations under the European Convention on Human Rights and the best interest of the child to provide in law that the disclosure of sexual assault counselling communications will only be granted by the trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.
I wish to provide an overview of the current law in Ireland, the jurisprudence of the European Court of Human Rights and arrangements in other common law jurisdictions. Such an overview is relevant to the arguments I am making in support of the amendment. However, I do not propose to document each area exhaustively because I am confident that the Minister, as a legal expert, is au fait with them and as a result of the fact that they have ably synopsised by the Government special rapporteur on child protection, Dr. Geoffrey Shannon, in a number of his annual reports and, most recently, his fourth such report which was published in 2010. It was via the latter that I first became aware of this issue. The report to which I refer contains Dr. Shannon's finding that there was an urgent need for legislation governing the issue of disclosure of private records, such as medical records, and counselling notes.
The right of the accused to justice and procedural fairness is the cornerstone of the Irish criminal justice system and is principally guaranteed under Articles 43.1 and 43.2 of the Constitution. The European Convention on Human Rights provides further guidance via Article 6, which protects the right of the accused to the presumption of innocence and the right to a fair trial, and Article 8, which provides a right to respect for one's private and family life and home and correspondence, subject to certain restrictions that are in accordance with law and necessary in a democratic society. The most relevant restriction in this context relates to the protection of the rights and freedoms of others. The issues at stake here clearly require the balance of what, in this context, are competing interests. There is a substantial body of jurisprudence from the European Court of Human Rights in Strasbourg which finds that a complainant's Article 8 interests can be accommodated alongside the Article 6 rights of the accused.
The decisions from Strasbourg demonstrate that while the right to a fair trial is absolute, none of its contingent parts, of which disclosure is one, is itself absolute. A fine example of this can be found in the Doorson v. The Netherlands decision of 1996, in which the courts held that Article 8 interests:
...are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.
The court was confirming that while Article 6 is important, the concept of fairness that it embodies has many possible configurations.
The practice regarding disclosure orders for third parties has been considered in the past 15 years by many of our fellow common law jurisdictions. The disclosure processes settled upon in these jurisdictions range from being governed by judicial rulings, as in Northern Ireland, to legislation, as in Australia, Canada and Scotland, to a combination of both, as in England and Wales. I have examined all of these. They vary in their application from being manifestly weighted in the interests of the right of the accused to a fair trial, as in Scotland, to a comprehensive codified system for the use and disclosure of confidential records in sexual offence cases, as in Canada, to models requiring judicial scrutiny on a case-by-case basis, as in Australia. Whatever the approach adopted, what is most important is that each jurisdiction has seen fit to debate the balance of rights and public interest considerations and to apply standards governing disclosure, non-disclosure and objection to disclosure.
In Ireland there is no legislative provision governing disclosure nor have these important issues been subjected to sustained analysis or consideration by the Irish superior courts. The matter is crucial with respect to child witnesses who have been the victims of sexual abuse. They are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. My understanding is that under current practice, therapists in recent years, especially in the past six to 12 months, have been receiving increasing numbers of requests from the Office of the Director of Public Prosecutions seeking access to the notes of children's private and confidential therapy sessions.
I have several serious concerns. One is re-victimisation, creating a sense of powerlessness, stigma and betrayal at having innermost thoughts and feelings examined by a third party and, potentially, the alleged abuser. Another is the perception of a breach of trust, a betrayal by the therapist following the therapy process which could undermine the healing potential of therapy. This could also create a conflict between seeking counselling and reporting or proceeding with a prosecution. One could argue that the disincentive effect of disclosure of personal records would be such a powerful disincentive to report sexual offences - this relates to the public interest in the pursuit of justice area - and seek counselling - this relates to the public interest in restoring the child's well-being and ability to function in society area - that it seriously prejudices the public interest.
There is a strongly held view by many practitioners in specialised assessment and therapy services for children who have been sexually abused, that therapy notes should be privileged outright on the basis that they hold neither material evidence nor information relevant to the proceedings. When we reflect on the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements these services have in place to manage the process, the rationale for such privilege is strong. Therapy, as a whole, is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is a particular type of human engagement whereby the exploration of the thoughts and feelings of the child at a particular point is facilitated. Therapy notes, in turn, are context specific. They derive from therapeutic encounters and, as such, are concerned with documenting feelings, thoughts, hopes, fears and dreams rather than actual facts or material evidence. Ultimately, the aim of therapy is to assist a child to get back to a life that is not dominated by the sexual abuse experience and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour and responses that have become unhelpful, burdensome or troubling to the child's living experience.
Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of session. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children, in which the children can try out different roles to make sense of the abuse they experienced. However helpful to the children, therapists are becoming increasingly concerned about how notes describing such scenes might be interpreted in a legal arena and taken out of context. Trust in the therapeutic relationship and the creation of a safe space is paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved where the privacy and confidentiality of these therapy sessions are not sacrosanct.
I suggest that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child's well-being and ability to function in society. I could offer several harrowing examples of the devastating effects the current practice is having on child victims of sexual abuse and their families, including the conflict that ensues between either seeking justice or striving for the healing and well-being of the child. However, to speak about these cases on the record would be inappropriate. There is one case I can refer to, however, which was given to me at the request of the subject. It is a case I find deeply disturbing. The case highlights the reaction of one teenager, currently engaged in sexual abuse counselling, at the thought of their therapy notes being disclosed to a third party. The person said if they had known starting the counselling process that their therapy notes might be disclosed, they would never have started the process. Having already started, but now knowing it is a possibility, they are afraid to explore certain thoughts and feelings, thus undermining the therapeutic value. Most upsetting, they said that the idea of their trauma being scrutinised by others was tantamount to their insides being poked at again. This is a classic example of the re-victimisation I referred to earlier. There is a sense of powerlessness instilled by the criminal justice system in the absence of disclosure guidelines and this must be addressed.
I note the language of the European Commission in respect of the EU directive establishing minimum standards on rights, supports and protection of victims of crime, which was adopted in October 2012. The Commission stated that one of the greatest tests of the quality of our justice system is how well we treat our victims and that appropriate treatment is a demonstration of the solidarity of our society for each individual victim and a recognition that such treatment is essential for the moral integrity of society. It is crucial, therefore, not only to combat and prevent crime but also to properly support and protect individuals who fall victim to crime.
It is important to this debate to understand the management systems that specialised assessment and therapy services employ and their relevance to disclosure. The first phase, which is distinct from therapy, is the compilation of an assessment report whereby the practitioner will take account of the abuse alleged by the child. This is the baseline account of what the child says has happened. It is passed on to social workers and the Garda, where appropriate. It is available to the DPP and, in the context of a criminal trial, is not difficult to see how its content is regarded as relevant information. However, then the process moves on into the next phase, away from the who, what, where and when. Instead, the focus is on therapeutic issues that arise for children in their recovery. If any information arises in the course of the therapy phase that substantively alters the picture in the assessment report, the practitioner will update the assessment report accordingly and pass it on to the relevant social worker and so on. In essence, any information or evidence relevant to a criminal trial for child sexual abuse is already disclosed as a matter of course. The information left contained in the counselling records and therapeutic notes have no material relevance but it represents the heart and soul of a damaged child. As the Minister noted earlier, the Bill is about addressing issues that have been long ignored. I put it to the Minister that we must bolster our protection of these child witnesses and I offer the amendment to the Minister in this regard as a legislative response.
I wish to express support for the concerns raised by Senator van Turnhout.
In this amendment she has put very eloquently the case for making provision as regards admissibility of records of counselling where witnesses are under the age of 18. The Minister will be aware that this is an issue of immense concern, not just concerning child witnesses but also concerning adult witnesses in rape and sexual offences trials. I know the Senator has done a great deal of work on the protection of child witnesses in this regard. She and I have also worked with the Dublin Rape Crisis Centre and others concerning admissibility of counselling records for witnesses generally in sex offence trials - that is adult as well as child witnesses.
The Senator is right in saying that clear guidance needs to be given. The current state of uncertainty is clearly of real concern to child witnesses and complainants in sexual offence trials generally and their friends, families and supporters. This is a matter with which we need to deal. The rape crisis centre has been working on a protocol with the Office of the Director of Public Prosecutions concerning disclosure. It is a matter of increasing applicability in sex offence trials as defence teams increasingly seek disclosure of these records. It can be very traumatic for the witnesses and complainants involved, particularly, as Senator van Turnhout said, when these are children.
I strongly support Senator van Turnhout's amendment and thank her for putting so much research into best practice elsewhere in Europe and other jurisdictions. It is essential that we have a fair balance and, as the Senator pointed out, of course there must be the right to a fair trial. However, in doing so we must ensure that we do not necessarily re-victimise people by making the process more stressful and upsetting than it already is.
I was also horrified to hear from the Dublin Rape Crisis Centre that this is causing major problems for people. It did not seem to be as much of an issue in the past, but it seems defence teams are increasingly seeking this information. It is important that the issue has been raised. I am strongly supportive of the points Senators van Turnhout and Bacik have made. I am not sure whether a protocol or legislative amendment would be the best approach. We need to find a fair way to strike the right balance between the right of the accused to see necessary information and an unfair trawl of a victim's entire counselling background.
We need to ensure we do not deter victims from seeking counselling and that we do not damage the therapeutic relationship they have with their counsellor to the extent that they feel they cannot have full disclosure and are concerned that they cannot fully trust the person sitting across the table. It is such an important and sensitive relationship that we need to ensure we have adequate protections for victims. I again thank Senator van Turnhout for tabling her amendment.
I commend Senator van Turnhout on introducing a very necessary amendment. Unless there is some technical or wording reason for not accepting the amendment, I believe the Minister should accept it. I have been contacted by Rape Crisis Network Ireland - not the Dublin Rape Crisis Centre - a network of rape crisis centres throughout the country. It has deep concerns about the issue of counselling notes being made available and the pressure being brought by the Director of Public Prosecutions and others to make these notes available to form part of a book of evidence. If a victim felt for one minute that, having entered a programme with a counsellor from any rape crisis centre, the notes might end up as part of a book of evidence, that person might never seek the service of a rape crisis centre, which would be a retrograde step. It would choke these organisations, many of which are operating on a shoestring and are doing profoundly important work and giving crucial support to people who need it at a desperately vulnerable time in their lives having become victims of unspeakable crimes.
They feel constrained because the notes of a conversation might end up as part of a book of evidence. The counsellors are also constrained for the same reason. While Senator van Turnhout would have considerably more knowledge of the issue than I have, from my lengthy discussions with a counsellor over a number of hours on a number of different occasions, I was so concerned about it that I requested the Oireachtas Joint Committee on Justice, Defence and Equality to do a module on the area of sexual violence and what protocols are in place to deal with counsellors and other professionals involved. It is very serious and I would be interested in hearing the Minister's response on the subject.
We would concur with and support Senator van Turnhout in the issue she is raising. I appreciate that the Minister might need to find other legalese to address her concerns. From working with services that deal with rape crisis, including those involving children, I share the concerns. There is almost a sense of a doctor-client privilege when a person is being treated in such a scenario. Members of the public would regard that as extending to a therapy situation. Although the person with whom they are working might not be a medical doctor, they enter such scenarios in the understanding that what they say will be confidential or else they would not disclose. That is also found with people who enter counselling for drug and alcohol addiction. That confidentiality is a fundamental part of the treatment.
Many rape crisis centres would advise that it is very hard to get a woman to take a court case against a significant other. Any support that can be given to a person who has been subjected to any form of abuse is absolutely necessary. While I do not have the figures, I imagine the proportion of people who come forward is extremely small. The amendment would help women, men and children in those desperate situations to have more confidence in coming forward. I urge the Minister to take on board the spirit of the amendment.
I broadly agree with the amendment, which would still leave it open that the evidence would not be admitted except by order of the court. The amendment sets out the circumstances in which such an order could be made. The proposed amendment should be given serious consideration - perhaps it should have been considered at an earlier stage.
I thank the Senator for proposing the amendment, which has given rise to the very important discussion that is taking place. The amendment was only made available a few days ago. I make no complaint about that because we have subjected the House to many amendments in the past where there has only been a short time to consider them. This is an issue in which I share the views expressed by Senator van Turnhout and other Members of the House. It is of major importance in criminal trials of all description, including criminal trials involving allegations of sexual assault that the rights of the accused are protected, that anything of evidential value with regard to a prosecution taking place is made available and that the books of evidence are provided to the accused and his or her lawyers so they are in a position to prepare for trial and deal with issues.
It is also important that we try to protect as best we can individuals, children in particular, who have been the victims of sexual assault so that, to take the words of Senator van Turnhout, they are not re-victimised and do not believe the legal system is abusive of them also.
The Senator spoke very ably on the need to balance the rights in Articles 8 and 6 of the European convention and on some of the background case law. I understand the Law Reform Commission will examine this issue as part of its fourth programme, which I expect to be announced shortly. On foot of the amendment tabled by the Senator we consulted with the Office of the Attorney General which has advised me, and I must relate this advice, that a very detailed examination of this issue is required because of the need to balance the constitutional right to due process against the right to privacy. This is a very complex matter and I am entirely happy that we leave it to be dealt with by the Law Reform Commission, for no reason other than the timeframe involved. The Law Reform Commission is very well equipped to deal with this matter and with the point raised by the Senator, which is the need in the State for sustained analysis on this issue. Much of the material is from outside the State. I am personally aware of the concerns of the Rape Crisis Centre and it seems that in recent years those defending accused have been more actively seeking these reports. It is an inhibiting factor for those counselling an individual as to how they approach these matters and it is of concern to an individual who may disclose information that is necessary in the context of counselling which has no direct relevance to their credibility in a court hearing, or of no direct relevance to any issue in dispute at a trial, but may be a cause of embarrassment to the individual if the information is disclosed. The problem is how to achieve a balance.
I cannot accept the Senator's amendment and I want to point out some of the technical reasons. This is not to raise technical reasons to in any way put down the Senator, because it is a very serious issue. The proposed section states where a person under the age of 18 gives evidence as a witness in any criminal proceedings, evidence disclosing the content of communications made by the witness in confidence in the course of sexual assault counselling should not be admissible save by order of the court. The section is based on an assumption that the person who is the victim will either already have given evidence or be in the course of giving evidence, because it mentions a person who gives evidence and does not refer to the victim or the alleged victim. There is no provision for pre-trial procedures. It would be very unsatisfactory in the context of a criminal trial that this issue would only be addressed during the course of someone being in the witness box except in exceptional circumstances, and there are exceptional circumstances in criminal trials where issues may arise. If there was to be an issue as to whether this type of report would be disclosed, it would be better dealt with in a pre-trial procedure, whereby the case is made in a pre-trial procedure as to why it should be disclosed and why it should not be disclosed. It may well be that in determining whether it should be disclosed, a judge would have access on a preliminary basis to the documentation and would himself or herself determine its relevance or not to any issues in dispute in the criminal proceedings.
The manner in which this is framed could create a very real problem and could result in a trial being unnecessarily prolonged or adjourned, to the detriment of the victim who, having gone through the trauma of attending court, could find the hearing is adjourned for a period of days while an issue is addressed in this context. If documentation was furnished which the defendant's solicitor was of the view might well raise new issues it could result in an application being made to set aside the trial and for a new trial to be held while how to deal with the information was being considered. At the very start of this there is a problem not only of a merely technical nature, but of a substantive nature as to how it could impact on trials.
We could discuss issues regarding subsection (2) and the matters to which the court should have regard, but I do not want to delay the House and I will not go into it in detail. With regard to the provision in the proposed section 31, there is a difficulty as to what should be confidential in the context of the person to whom it is communicated. Should it only be confidential if one is being seen by a qualified psychiatrist or a qualified psychologist? Others are engaged in counselling who may have specific training in counselling individuals who have been the victims of a sexual assault but they may not be formally psychiatrists or psychologists. There would have to be clarity as to with whom communications should be regarded as confidential. In the context of this particular revision, reference is made to a person who has undertaken training or study. This does not mean the person is actually qualified. What if someone has undertaken training or study and is so poor he or she does not obtain a professional qualification? Does this make the person an individual with whom one can have a privileged conversation? It also refers to a person who has experience which is relevant to the process of counselling persons. This is an extremely loose wording and I am not quite sure what this is.
I took it from Irish law.
We are dealing with criminal trials and we must be very careful. It is always easy to look at a proposed amendment and point out difficulties with it, and I am not trying to do this for gratuitous reasons. There is a difficulty with it. I have huge alarm bells ringing in respect of the wording of section 32(b)(1), which refers to a person who listens to and gives verbal or other support or encouragement to someone, but encouragement to do what? If I were a lawyer representing someone being prosecuted, the first question I would ask is whether the person was encouraged to lie, tell the truth or make a complaint when there was nothing about which to complain. We must be very careful with this.
I want to state categorically I agree with the general expressions of concern about the way this area is working. The advice of the Attorney General on this amendment as proposed, which is what I must deal with, is that this is a complex area and if we are to address it, we must do so with great care and exact language, which not only protects the privacy of a young child who has been the victim of abuse and ensures counselling they engage in can be appropriately confidential and there is no barrier to engaging in it, but also protects the rights of the accused and ensures evidence which is genuinely relevant to a prosecution is not concealed from the court which could result in an innocent individual being found guilty.
This is a very important discussion.
As I said, I think the Law Reform Commission is the right body to deal with this but I am concerned about the timeframe. I am conscious this has become more of a problem in the past couple of years, in particular. I ask Senator van Turnhout, having given us the wealth of her insights and the benefits of her research, not to press the amendment tonight. For my part, I will engage with the Attorney General on whether in the short timeframe available, she believes that all of the different issues such as issues of constitutional sensitivity could be adequately addresses by her office to facilitate either the Minister bringing forward an appropriate amendment or if Senator van Turnhout produces an amendment for Report Stage. I am conscious that the Bill goes from the Seanad to the Dáil. I expect there is a possibility on Report Stage that I may be telling this House that a number of amendments, which we did not have the time to frame, will be tabled in the Dáil Chamber which will mean the Bill will be returned to this House. If the Attorney General believes the work could be done but not in time for Report Stage in the Seanad but in time to facilitate addressing it in the Dáil, I will tell the Members of this House on Report Stage. I do not want to inhibit Senator van Turnhout in any way from retabling this amendment or tabling amendments which take account of some of the concerns I have expressed on Report Stage.
This is an important issue. I personally would like to ensure we can address it as soon as is possible but we must do so in a very careful way.
I thank the Minister. I will not press this amendment. The Minister robustly engages in exchanges on the amendments tabled by Members. I know that, like me, the Minister understands the importance of this amendment. Having listened to his response, I know he appreciates the timeliness if we can find an appropriate and balanced wording. As I said, many practitioners wanted me to look for absolute privilege, which is probably what my heart would like to seek, but I realise we must achieve a balance which is what I strove to do. I take on board what the Minister has said. I looked at legislation for ways we previously defined counselling advice, so I am very happy to share that information with him.
In 2010, Dr. Geoffrey Shannon identified in his fourth annual report the urgent need for legislation governing the issue of disclosure of private records, such as medical records and counselling notes. It is now 2013. I would be very hesitant to go any other route, even though I have utmost trust and faith in the Law Reform Commission. The issue of adults must be looked at but for me there is a real and pressing concern in regard to children. I will engage in the process outlined by the Minister.
Is the amendment being pressed?
Government amendment No. 76:
In page 4, line 13, after “2002;” to insert the following:
“to amend the Courts (Establishment and Constitution) Act 1961 to increase the number of Supreme Court judges to nine; to amend the Juries Act 1976 to provide for the selection of additional jurors in lengthy criminal trials; to amend the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for the provision of legal aid or advice, or both, in respect of coroners inquests to families of deceased persons in certain circumstances; to amend the Bankruptcy Act 1988; to amend the Personal Insolvency Act 2012;”.
When is it proposed to take Report Stage?
Next Tuesday, 2 July 2013.