The section concerns statements of truth, a matter that was raised on Second Stage and that was a subject of focus previously in the House. To be clear, section 20 will provide for "the lodgement or filing of a document with, and the making of an application to, a court by transmitting the document or application by electronic means". Clearly, it is very welcome that such an adjustment to the way things are done will be made in the interests of efficiency and so on, and providing that documents, applications and so on can be made by electronic means is to be welcomed. It is within that context, as I understand it, that section 21 arises, where it is provided that rules of court may make provision for a statement, known as a statement of truth, to be made and transmitted by electronic means in place of the affidavit or statutory declaration concerned.
Section 21(2) then sets out the specifics, providing that a statement of truth "may be in electronic form", should "contain a statement that the person making the statement of truth has an honest belief that the facts stated therein are true" and "may be signed by the person making it by that person entering his or her name in an electronic format". This provides for it to be done electronically. It is left to the rules of court under section 21(2)(d) to provide for "other requirements" about the "verification" of such a statement of truth.
It seems to me that the main efficiency achieved here is the provision that documents can be submitted electronically. When we are talking about affidavits or statutory declarations, the question arises of the seriousness of such documents in presenting evidence to the court. It seems to me that there are two dimensions to what is involved with the statement of truth. One is the idea that instead of an oath or affirmation, there is this statement of truth. The second question is whether such a statement is required to be made in the presence of another person. As I understand it, the section amends or abolishes the requirement for a deponent either to swear an oath before God or to make a more secular affirmation, which is already provided for when swearing an affidavit.
I mentioned previously that the director general of the Law Society said it was embarrassing that a deponent should have the option of indicating their religious faith when swearing an affidavit. That comment was unfortunate because it illustrates a certain attitude of official Ireland that anything with even the most cursory or inconsequential reference to religious faith should be abolished as being somehow out of date or offensive to other people. There is something of a scratching of a secular itch going on here when one considers that there is already the alternative possibility of a secular affirmation anyway. As I pointed out last week, the real lack of pluralism that exists and is not being addressed by this Bill is where a newly elected President or newly appointed judge has to make a religious oath. I am thinking in particular of a President. That is obviously a discussion for another day because it has a constitutional dimension to it.
It is worth noting that the Seanad has a prayer as Gaeilge and in English preceded by 30 seconds of silence. This offers a better model for modernisation than what is proposed in this legislation. I was on the Seanad Committee on Procedure and Privileges when we came up with this new arrangement on foot of a proposal from Senator Bacik to dispense with the traditional Christian prayer in English and as Gaeilge. I proposed at the time that we should recognise the solemnity of all legislators who gather, of whatever religious faith or none, and this was accepted by everybody including Senator Bacik. The 30 seconds of silence addressed that in an inclusive way, but at the same time we avoided the lowest common denominator or the dispensing with tradition by maintaining the existing prayer after that. I think people found that the atmosphere surrounding the whole thing was greatly improved by the change we made.
In a similar vein, when it comes to trying to put new structures in place to reflect different times we should avoid an either-or mentality and seek always to achieve a both-and solution or approach. I think that what is proposed here would tend to facilitate an attack on a genuine pluralism. I presume the Minister will respond by saying that this legislation merely enables changes to be made to the rules of court and that this is no more than an enabling provision. Nonetheless, it seems to envisage the abolition of the requirement to swear an affidavit before a solicitor or commissioner for oaths. Does it do more than that? Does it envisage that even the option of swearing an affidavit before a solicitor or commissioner for oaths would be removed? I would be grateful if the Minister would respond to that question. What precisely is envisaged to happen? Is it that there will no longer be the possibility of swearing an affidavit, or in the alternative, either making an oath or affirmation? There is a big difference between swearing an oath using a religious or secular formula in the presence of a law officer, and simply signing on the dotted line and returning a scanned statement of truth by email.
This speaks to the second aspect of what I am talking about, which is the removal of the fail-safe requirement to present before another person or official.
In the end, when we talk about efficiency, much has already been achieved by permitting the filing of documents electronically. Does it really prevent efficiency that when it comes to the making of important legal statements, there must be a requirement of presenting before another person? The fact that the law now seeks to provide for a statement of truth where it could simply penalise any false statements knowingly made or any statement that was false where the person lacked an honest belief that it was true. There is clearly a recognition that there is a need to confront people with the seriousness of what they are doing. Otherwise one would not be thinking up this alternative formula of a statement of truth. The law would merely provide that if it is not true and if a person did not have an honest belief in its truth, then that person has committed an offence. There is a desire to maintain seriousness here by requiring the statement of truth. I am suggesting that that seriousness is frustrated by the dispensing with the existing formula in its current varied form.
It was mentioned to me by a colleague here that there are certainly judges down at the courts who are concerned about the existing cavalier way that some people have of treating oaths, sworn affidavits, and so on. B’fhéidir gur sin scéal eile go lá eile.
I am concerned that what is happening here would reduce the pretrial submission of evidence in civil proceedings to a box-ticking exercise and might increase the chance that false evidence would be introduced because it would not be viewed as seriously by those submitting these statements of truth, notwithstanding the severe penalties for making a false statement provided for in this legislation.
To make a simple comparison, when a person fills out a passport application or an application to register to vote, they are required to complete a section of it in the presence of a member of An Garda Síochána, the reason being that this operates as a fail-safe. It applies some measure of verification, imports an atmosphere of seriousness to what is going on, and compels applicants to take the process seriously. If that requirement were abolished, does the Minister consider that there would be fewer or more false applications made for passports or for inclusion on the electoral register? I would say that there would surely be more. I fear that the same might be said about these statements of truth.
To summarise on the core issues, this is a false concept of pluralism - if that is what is at work here, and I would be grateful to hear the Minister’s view on this - in proposing to replace the making of an oath or affirmation with a statement of truth.
I am interested in hearing the Minister's view on the reasoning behind this provision. The possibility that this could be done electronically and without the requirement for a person to present to a third party or official appears to be envisaged in the legislation. What is the Minister's view on that matter? Does she agree with me regarding the potential loss of an important fail-safe here?
I would also like to ask an overarching question. Am I correct in stating that the legislation, in providing for a statement of truth, refers to situations where, under the previous section, documents may be or may be required to be lodged electronically? Is it thought that there will be other documents that may not be permitted to be submitted electronically and that, therefore, would not be covered by this provision in the context of the statement of truth?