Civil Law (Miscellaneous Provisions) Bill 2011: Committee Stage

This meeting has been convened to consider the Civil Law (Miscellaneous Provisions) Bill 2011. I must advise the members that we are required to vacate this room by 11.25 a.m. and have no flexibility in this regard as another group is scheduled to be in the room at 11.30 and witnesses are restricted by travel arrangements. I ask everybody to turn off mobile phones completely and not simply turn them to silent mode.

I welcome the Minister and his officials. It is proposed to group the following amendments for the purpose of debate: Nos. 1, 5 to 9, inclusive, and 18; and Nos. 14 to 17, inclusive. All other amendments which are not grouped will be discussed individually.


As amendments Nos. 1 and 18 are consequential on amendments Nos. 5 to 9, inclusive, amendments Nos. 1, 5 to 9, inclusive, and 18 will be discussed together.

I move amendment No. 1:

In page 6, between lines 8 and 9, to insert the following subsection:

"(9) The Tribunals of Inquiry (Evidence) Acts 1921 to 2004 and Part 15 may be cited together as the Tribunals of Inquiry (Evidence) Acts 1921 to 2011.”.

Amendment No. 1 is designed to reflect accurately in the citation the new provision in regard to tribunals of inquiry proposed to be inserted in the Bill. I intend to amend section 1 further on Report Stage in order to ensure that those provisions that require a commencement order are definitively set out in the final text. I intend to make further amendments of a minor technical or drafting nature to improve the text of the Bill on Report Stage. These will include amendments to the equality Acts, the Immigration Acts and the Irish Nationality and Citizenship Acts.

Amendments Nos. 5 to 9, inclusive, will insert a new Part in the Bill to address a gap in the existing tribunal of inquiry legislation dating from 1921. They provide for a statutory basis for the procedures for the deposition of material following completion of a tribunal, including materials to be transferred to the Minister under whose aegis the tribunal was established. However, certain material may be returned to the person who gave it to the tribunal if the chairman is satisfied that the retention of the part is not necessary in order to understand any of the proceedings of the tribunal, any interim report of the tribunal or the final report of the tribunal. It also makes provision for the application of the provisions of the National Archives Act 1986 to tribunal documentation other than material that constitutes departmental records and also for the extension to tribunals of inquiry of the provision in the existing section 40 of the Commissions of Investigation Act regarding the non-applicability of the Freedom of Information Act 1997.

The proposed changes are designed to ensure that material internal to a tribunal, including documentation relating to parties who are not the subject of public inquiry and also documentation relating to the internal deliberative process of the tribunal which was not subject to a freedom of information application for obvious reasons during the existence of the tribunal, would not then become subject to freedom of information application after the tribunal is finished. The exclusion concerned will not relate to material where the record was created before the making of the order establishing the tribunal and material relating to the expenses and administration of the tribunal. All of these would be subject to a Freedom of Information Act application.

Amendment No. 18 is a technical amendment to include in the Long Title the necessary reference to the amendment to the law on tribunals of inquiry, which is proposed to be inserted at Part 15. To put it in a non-technical format, at present material held by a tribunal that has concluded its deliberations could be the subject of freedom of information applications, FOIs. That could mean that where the tribunal has received material and considers it should not form any inquiry because there is no issue to raise or where the tribunal has conducted a preliminary inquiry and concluded there is no matter to answer, there is a risk that such material could be the subject of FOIs. The difficulty in this regard is that if people have been subject to unsubstantiated allegations that the tribunal has concluded are not worth pursuing, those allegations could be published at a later stage in circumstances that would be grossly unfair. Mr. Justice Mahon raised this issue previously and it needs to be addressed. It was addressed in the 2004 Act to which I referred but, for whatever reason, no thought was given to extending the provision to tribunals of inquiry when the legislation was being enacted.

These provisions look complicated, but this is the basic objective and they have been drafted on the advice of the Attorney General. The amendments before the committee are those that the Attorney General proposes to ensure a similar protection applies to material received by tribunals as applies to committees of inquiry created under the 2004 Act.

Has anyone a response to offer?

I do not know. The Minister and every member had a busy day yesterday. We received the 18 pages of amendments at 5.15 p.m. We debated Second Stage on Tuesday evening and, in fairness to the Minister, he gave a lengthy response in which he addressed all of the issues raised during the debate. He stated he would be tabling further amendments, including on immigration, but no indication was given that there would be amendments on the Tribunals of Inquiry Act. While I accept the Minister's premise that these amendments are administrative, we do not know because we have not had a chance to consult our legal advisers so that we might form a legal opinion.

Given the fact that the Minister intends to table further amendments relating to the tribunals Act on Report Stage, could we defer discussion on these amendments until then, as that would allow Deputy O'Brien and me to get advice on the matter before making a final call?

These amendments were circulated last Friday evening to all Deputies in the usual white sheets that are used when amendments are drafted, prepared and distributed to Deputies.

Why did the Minister not indicate on Tuesday?

I assumed that once they had been distributed, the Deputy had sight and was aware of them. I inquired into the issue yesterday because Deputy O'Brien raised it with me and I was anxious to ensure people were not taken short. I was assured that the amendments were distributed last Friday. What we got yesterday, myself included, was what is normally made available the evening before Committee Stage, that is, the bound volume of all sides' amendments together. There was nothing unusual or exceptional about that.

If the Deputy has not had adequate opportunity to consider these amendments since their circulation last Friday, we can revert to them on Report Stage. If they are incorporated in the Bill on this Stage and there are issues of concern, we will have an opportunity to address them on Report Stage and everyone will have a further period to go through them.

I understand and am advised that these are amendments that the previous Government decided to incorporate in the legislation but that it was not possible to have them finalised before we published the Bill. The Deputy saw the broad range of issues contained in the Bill. I understand that the previous Government had been co-ordinating with the previous Attorney General's office to prepare the amendments, which are detailed and needed to be prepared with care. They only became available to my Department in final form and in a manner that facilitated us distributing them on Friday evening. Otherwise, these provisions would have been included in the Bill when it was first published. Unfortunately, that did not prove possible, but there will be a possibility to revert to this issue. If the Deputies have issues they wish to raise that they believe they are unable to raise today, they can raise them on Report Stage.

I will check with my office but I did not see the amendments on Friday. As I told the Minister last night, the first I saw of them was at approximately 5 p.m. yesterday. Since we are tabling amendments on this issue on Report Stage, I agree with Deputy Calleary that we should hold these amendments over until then. If we could be allowed further consideration, it would be appreciated. I will check with my office. If the amendments were distributed on Friday and we did not get them, it is our responsibility.

What I would like to do is adopt the amendments on Committee Stage. We will have a Report Stage, on which there will be every opportunity to revisit these provisions. It is helpful to everyone that they be contained in the Bill published after Committee Stage, as it gives anyone with an interest in these provisions an opportunity to consider them and, if need be, make representations on them. I am aware they were only circulated last Friday. I am sure Deputies O'Brien and Calleary have been extraordinarily busy in recent days. All three of us have been dealing with many issues in the justice area. We will have every opportunity to revert to the matter on Report Stage and give it whatever further time it requires. I do not want to take the Deputies short.

Given the explanation, I am not opposed to the section or what the Government is trying to do in terms of stopping allegations getting out. It is the timing, rather than the issue, I question.

I appreciate that.

I have no difficulty with the question on archived material and section 46 restricts the Freedom of Information Act. Where is what constitutes the general administration of the tribunal defined? It seems like a broad phrase. Is it defined by the presiding judge or presiding chairman or is a judge given guidance? Has every tribunal a freedom of information officer or is it the Department of Justice and Equality that makes the call?

As I understand it, this issue will effectively be dealt with in co-operation between the Department and the administrative side of the tribunal. It is not designed to conceal anything that should be in the public domain. It is simply designed to protect individuals who may be innocent of allegations made to ensure that their reputations in the coming years are not traduced by information appearing in sensational form if the tribunal had determined that the information was either vexatious or, having engaged in preliminary considerations of it, contained nothing worth pursuing. This is the essential focus of these amendments.

Important information will be archived in the manner detailed in the amendments and will be made publicly available at some appropriate time in the future as other archived material is made available. It is important that people's reputations are not destroyed by allegations that a tribunal has deemed unworthy of pursuit.

Amendment agreed to.
Section 1, as amended, agreed to.
Question proposed: "That section 2 stand part of the Bill."

There are substantial changes in this section but the Minister flagged some of those and he might give a summary of the changes. There is the appeals board for the intoxicating liquor issue on which I would like some detail from the Minister.

The appeals board is in regard to the private security authority.

Sorry, my apologies.

It is not to do with the intoxicating liquor issue. We will deal with it when we get to it.

Question put and agreed to.
Section 3 agreed to.
Question proposed: "That section 4 stand part of the Bill."

We discussed that section at great length on Second Stage. I hope I responded to the various issues Deputies raised which were important to tease out on that occasion.

Question put and agreed to.
Sections 5 to 15, inclusive, agreed to.

I move amendment No. 2:

In page 14, before section 16 but in Part 4, to insert the following new section:

16 -The Schedule 2 to the Act of 2004 is amended-

(a) in paragraph 14(1)-

(i) by the substitution of "An applicant for a licence or the holder of a licence aggrieved by a decision of the Authority-" for "A person aggrieved by a decision of the Authority-", and

(ii) in clause (d), by the substitution of "to which a licence relates," for "to which a licence relates, or", and

(iii) by the deletion of clause (e),

(b) in paragraph 14, by the substitution of the following for subparagraph (4):

"(4) An appeal be grounded on the record of the decision to which the appeal relates, on the grounds of appeal contained in the notice of appeal and on any observations of the Authority given at the request of the Appeal Board on any other matter arising on the decision.".

(c) in paragraph 14(5) by the substitution of the following for clause (b):

"(b) by remitting the matter back to the Authority with a recommendation that -

(i) the licence be granted, renewed or restored, as the case may be,

(ii) that the reprimand, warning, caution or an advice be withdrawn, or

(iii) that the variation sought be granted,

and the Authority shall give effect to any such recommendation.",

(d) in paragraph 15(1)(d), by the substitution of "and the reasons on which they are based" for "and the reasons, considerations and arguments on which are based",

(e) in paragraph 15, by the substitution of the following for subparagraph (4):

"(4) The Appeal Board shall not consider any documents submitted by an appellant in relation to an appeal other than those which accompanied the notice of appeal or which were furnished by the appellant in response to a request by the Appeal Board.",

(f) in paragraph 16(2)(b), by the substitution of "any report prepared for or received by the Authority" for "any report prepared for the Authority",

(g) by the deletion of paragraph 18,

(h) in paragraph 19 -

(i) by the substitution of the following for subparagraph (1):

"(1) A person who is not a party to an appeal may make a submission or observations in writing to the Appeal Board in relation to the Appeal where invited by the Appeal Board to do so.",

(ii) by the substitution of the following for subparagraph (2):

"(2) Such submission or observations may be made within one month of the issue of the invitation to do so by the Appeal Board and any such submission or observations received by the Appeal Board after the expiration of that period shall not be considered by it.",

(i) by the deletion of paragraph 20,

(j) in paragraph 21 -

(i) by the substitution of the following for subparagraph (1):

"(1) Sittings of the Appeal Board shall normally be heard in private and shall be conducted with the minimum formality consistent with the carrying out by the Appeal Board of its functions.",

(ii) in subparagraph (2) by the deletion of "of its own motion or",

(iii) by the substitution of the following for subparagraph (3):

(3) The Appeal board in conducting an oral hearing may by notice in writing require any person to attend at such time and place as is specified in the notice to give evidence in relation to any matter in issue at the hearing or to produce any relevant documents in his or her possession or under his or her control.".

(iv) in subparagraph (4), by the substitution of "subparagraph (3)" for "subparagraph (3)(b)",

(v) in subparagraph (6), by the substitution of the following for clause (c):

"(c) where the request is by the Authority, shall be made within the period of one month referred to in paragraph 17(1).",


(k) in paragraph 22, by the substitution of "paragraph 21(3)" for "paragraph 21(3)(b)"."

This amendment provides for a new section to the Bill in Part 4, the purpose of which is to make a number of amendments to the Second Schedule to the Private Security Services Act 2004 in order to simplify and streamline the procedures for the making of appeals to the appeal board and for the determination of those appeals in as speedy a manner as possible. The whole intention of the appeal board was to permit a person affected by a decision of the authority to have that decision examined by an independent body and a determination of whether the decision was correct. It was hoped that its procedures would be sufficiently flexible and informal to enable the appeal board make its determination quickly so as to allow the person affected obtain a licence, retain that licence or, where appropriate, to re-apply for a licence. In practice, the appeal board found the procedures set out in the Schedule were hampering its ability to consider and quickly turn around appeals.

The amendment set out in the new section 16 will allow the appeal board to make decisions more quickly. That will be of tremendous benefit to those who make appeals of decisions of the authority, decisions which may have a major impact on their ability to carry on a business or take up or continue in employment. To that extent the amendments are very much in line with the commitment of this Government to remove or minimise barriers to business or to employment.

Amendment agreed to.
Sections 16 to 27, inclusive, agreed to.

I move amendment No. 3:

In page 22, line 7, to delete "at least 5 years" and substitute "at least 3 years".

This matter was discussed at length on Second Stage as to whether the timeframe should be three years, five years, or more or less, and how the five years was arrived it. I appreciate there is no magic formula but having consulted with several groups which deal in this area, they consider that three years is a more suitable timeframe. I realise we are returning to this issue in the new year in a more comprehensive Bill but will the Minister give an indication of how the five year timeframe was arrived at?

I appreciate the Deputy raising this issue. As I said on Second Stage, there is no magical figure as to how many years it should be. It is an issue of debate not just in Ireland but in a variety of countries. One of the critical changes proposed in Part 7 is, of course, the replacement of section 85 of the Bankruptcy Act 1988 and the period for application to the court for discharge of bankrupt persons which was 12 years under that Act is reduced to five years under this Bill, with a discharge remaining subject to existing conditions. As stated on Second Stage, these are payments in full of all expenses, fees and costs of the bankruptcy, as well as all preferential payments which are primarily to the Revenue Commissioners and to former employees. We have to be careful in this area. This is one of the reasons I am being cautious. My original personal inclination was to make it three years. We thought long and hard about this in the Department before bringing the matter to Government.

My concern was also to ensure that if we effect change, we do not go from one extreme to the other; that we do not go from a position where it is extremely difficult to extricate oneself from bankruptcy and one is kept in bankruptcy for too long in circumstances where there is no reality in discharging one's debts, to a position which renders it is very easy for people to avoid the serious financial obligations they have and in circumstances where they may have led the high live irresponsibly at the cost of others. The preferential creditors are the Revenue Commissioners. Essentially that is about people failing to pay taxes they are obliged to pay. The majority of people in this country are tax compliant. We have been through periods in my time in politics where there were far too many people who were not tax compliant. There has to be a sense of fairness on the part of those who pay their taxes that individuals who fail to pay their taxes cannot easily extricate themselves from that position. There is also the issue of people who have traded and may have paid themselves excessive salaries that the business they are running could not tolerate. Equally, they may have indulged in unnecessarily expensive cars or too many holidays abroad and as a consequence when rendered bankrupt have left employees high and dry who were owed substantial sums of money in back wages.

I am very conscious of this because I am aware of a number of situations that have occurred, which is an area that needs to be further addressed in our company law area, where individuals who were not sole traders but were trading under the guise of a company have drawn excessive salaries for themselves out of the company to the detriment of their employees. The company goes into liquidation and within two or three weeks they have created a new company and are trading in exactly the same area and because the trading mechanism was the company the employees will often have no comeback to recover wages.

I did not want to create a mirror image of that in our bankruptcy legislation. I wanted to ensure that if people had not met their obligations to their employees and had not met the obligation to pay their taxes, there was some period of time that was reasonably afforded for them to remain obliged to meet debts and try and trade their way to meet their obligations. This could be done by getting employment or whatever other means are available to them of earning income.

To meet the five-year rule to be discharged from bankruptcy, these requirements must be met. Arguably a three year rule could be applied but the obligation would still hold. I am aware this is a major change and I want to see how it operates. We decided, pragmatically, on the five year period to see how it will work in practice. The manner in which this works will give us a brief snapshot as to the term of years in the area of insolvency we ultimately prescribe in the more detailed legislation to be published.

We have to put in place new procedures and new mechanisms for trying to facilitate those who are owed money recover it, and to facilitate those who, through misfortune, are rendered bankrupt to extricate themselves in a manner that is not as involved as the current complexities of bankruptcy law. When we draft the detailed Bill I will revisit this issue.

We need to see how this works in practice in our own environment and ensure that we are fair to former employees who are owed money. We also need to ensure that the State does recover, where possible, and that people are given a reasonable time after bankruptcy to keep related funds necessary to meet their preferential debts. That would be the primary thought process behind this, which is one of the reasons why we want at this stage to adhere to the five year rule.

The new legislation that is being worked on will provide for a new framework for non-judicial settlement and enforcement of debt and will fulfil the commitments we have under the EU-IMF agreement. Under that agreement we are required to publish the legislation in the first quarter of 2012. I hope we may publish it before the end of this year. That will give everyone an opportunity to consider it but I do not consider that we will take it in the Dáil until the new year.

In the intervening period we will have had some experience of how this legislation is working in practice and it will feed into the legislative process in that Bill. The five year provision may still apply to that legislation but as we see how this measure is working we may reduce the number of years. It would be my inclination to do so, provided we have done it in a manner where people are not basically extricating themselves from circumstances that they have brought on their own heads in a manner that would be unfair to both taxpayers and to former employees.

It is a considerable change to reduce the term from 12 years to five. I appreciate that. I welcome the Minister's comments. He said he was leaning towards a three year period but wanted to play it safe. I am willing to withdraw the amendment because I know we will come back to it. I wanted to flag the fact that three years is a more appropriate period but I can understand why we are sticking with five years.

One of the issues that I keep coming across are people who are self-employed. Such people went into business and subcontracted for larger companies. The larger companies are shafting them; they are not paying them. They are being forced into liquidation and bankruptcy through no fault of their own. Does the Minister have any idea how many people would benefit from the reduction from 12 years to five years?

I do not have that figure because one of the issues that will remain uncertain, and this is why we need to get a feel for how this works, is how many people are bankrupt for less than five years. Under the new 12 year rule we have estimated that 365 people will have their bankruptcies terminated. What we do not know is how many under this rule will be able to utilise that because they accumulated funds to meet their preferential debts.

We may discover that no one can meet their preferential debts in real terms. I do not know the answer to this. It is one of the reasons why we need to get some insight into how this may work in practice. There have been, in the current economic climate, a number of small contracting firms that have had to liquidate because when major construction companies have folded they have not paid their debts. The vast majority of these have been companies as opposed to sole traders.

There have been individuals employed by construction companies across a broad range of trades who as employees have lost out. There were some who were doing work as subcontractors and who have not had moneys due to them paid but I come back to figure we gave. There have been very few people, despite the economic catastrophe that has afflicted the country and the huge increase in unemployment, rendered bankrupt. Last year 27 people were rendered bankrupt.

What has happened to small contracting companies is that because they are not sole traders the company has gone into liquidation. That of course has created personal financial difficulties, through no fault of their own, for the individuals running those companies. As it is the company that has gone into liquidation there is nothing to prevent those individuals forming a new company and trading again.

They are not constrained in the way a bankrupt is because their debts are company debts, not personal debts. There are some people who would have gone personal guarantor for borrowings from banks but banks are not moving to bankrupt individuals in the current climate. I do not see a large number of banks taking that approach in the intervening period between now and when the insolvency Bill, the major reform, is enacted. I believe they will only follow that route in circumstances where they are of the view that there are individuals who are clearly evading debt of a personal nature and who may have behaved in a fraudulent manner where they have transferred assets that they personally own to others.

They may want to use the bankruptcy procedures to bring those assets back into the ownership of the individual who divested himself. Of course there have been reports - I do not know how accurate they are - of some individuals who owe substantial debt and who have gone personal guarantor for the debt and were involved in major business ventures prior to liquidating their companies or prior to entering into arrangements whereby NAMA has acquired assets. They have not entered into those arrangements; NAMA has taken the action itself.

There have also been reports of individuals who have divested themselves of personal assets that should have been utilised to deliver on the personal guarantees they gave for bank debt where they have been divested to family members in an attempt to avoid meeting their commitments. It is scandalous and unacceptable that individuals, who have gone personal guarantor for large borrowings as part of the security a financial institution obtained for the substantial borrowings they recklessly obtained, should be left in a position where they can simply divest themselves of assets to other family members and apparently be immune and protected from delivering on the legal commitments they gave at the time when they incurred major borrowings.

It is my hope, in so far as there are issues that can be properly legally pursued in that area and with regard to any individual, that NAMA will use whatever powers are available to it to pursue them. I hope financial institutions will do so also because if this route is not followed, it will be the taxpayers who will be picking up the loss while individuals who have behaved in an imprudent and unwise manner financially will ultimately benefit by transferring assets to family members. In that way they will continue to enjoy the lifestyle which they can no longer properly afford and they will evade debt.

We have to be careful in how we deal with these issues under the bankruptcy side of things. There may be further reform necessary in the area of company law. The Director of Corporate Enforcement can take action to have individuals barred from holding directorships of companies in circumstances where they have traded in a manner proscribed under company law legislation. Some court applications have been made which have resulted in individuals being excluded for a period of time from being company directors. That legislation needs to be put to greater use so that those who fraudulently trade to the detriment of others will be prevented from easily reconstituting businesses in new companies and so put at risk those with whom they may trade in the future. This is an issue outside the bankruptcy legislation but these issues are relevant to sole traders and to individuals who fall into financial difficulties. They will require to be addressed in some detail in the new insolvency Bill which will reform the current bankruptcy legislation.

These are complicated areas and I have no doubt that when the insolvency Bill is published and it comes before this committee, it will be given very careful consideration by all of us. My objective is that we develop the best type of legislation which is balanced between the two different areas of concern, which are, to allow those who fall into financial difficulties through no fault of their own within a reasonable period to rebuild their lives while also ensuring that where money is owed to individuals that they have some reasonable possibility of recouping it. It should also be the case that the State should have a means of recouping, by way of outstanding taxes, where there is a real prospect that the person who is insolvent will within some reasonable period of time have access to money and assets as a consequence of work they may undertake during the period of their insolvency.

How soon does the Minister envisage making an order to bring this section into effect? Will this happen soon once the Bill is enacted?

We would not be bringing this legislation forward to deal with an urgent aspect of bankruptcy law if it was not our intention to fairly rapidly bring it into force following the enactment of the legislation. I do not wish to give a specific date because there are certain reasons for not doing so in the context of individuals who may have been detrimentally impacted upon by a bankrupt.

The Minister referred to the insolvency Bill. The committee wishes to invite the Minister and his officials to make heads of Bills available to the committee at an early stage so that we may assist in the legislative process. This would be very useful.

What is the international practice with regard to the time period for a bankruptcy? The Minister said he hopes to deal with the substantive issue in the insolvency legislation. When is this to be introduced? It would be crucial to have this legislation underpinned by information on the profiles of typical bankrupts. Is this information being collected by the Department?

Different countries have different laws on bankruptcy as regards time and the circumstances in which people can be released from bankruptcy. There is no magic formula. The time has been reduced to one year in the United Kingdom and this is now a real problem because people are using this time period to evade debt they might otherwise be able to pay. We are working to find the right balance. I hope the insolvency Bill will be published by the end of this year and if not, certainly in the first quarter of next year. It is my intention to bring some Bills to this committee by way of heads of Bills in order to give committee members the opportunity to contribute to the developmental process. I will consider this in the context of the bankruptcy Bill.

We are under certain constraints with regard to the EU-IMF agreement. If we complete the process quicker than anticipated, it may facilitate bringing the heads of the Bill to this committee and if not, there will be adequate opportunity to discuss the Bill on Second Stage and on Committee Stage. The Government made a decision this week that the heads of the Bill on the vetting legislation - which I hope to have complete by the end of this month - will come to this committee. It is intended they will be furnished to the committee at the end of the month and also to the Office of the Attorney General. Further developmental work will be needed on that Bill over the summer months and the objective is to publish it as a Bill in final form by the end of October.

By having the heads of the Bill, this committee will have an opportunity in September to consider the Bill, to discuss it and to make proposals. The committee may consider some areas which have not been addressed in the Bill and which should be addressed or which could be addressed differently. I am looking forward to that process. This will be the first Bill from the Department of Justice and Equality to be dealt with in this way. I ask the Deputy to repeat the other question.

Will the Department undertake a study of the type of people who are bankrupt?

One of the difficulties with bankruptcy at the moment is that bankruptcy proceedings are held in camera. I am not sure we will have the capacity to undertake such a study. When we come to deal with the insolvency Bill we should know something about the estimated in excess of 350 individuals who have been bankrupt for 12 years or more. Those bankruptcies will be terminated and certain work needs to be done in that context. We may get some information as a result. The workings of the first six months or so of this measure should give us some insight as to the number of those who have sought to be discharged from bankruptcy on the basis they have been bankrupt for in excess of five years.

What is the logic behind those proceedings being held in camera? I refer to an initiative in family law hearings where Ms Carol Coulter did a report. Could a similar initiative be undertaken?

I do not wish to mislead the committee but from my recollection I believe those proceedings are heard in camera. I will double-check that information. The rationale behind this provision was to avoid exposing individuals’ financial circumstances in public. For example, where there is a petition for bankruptcy, an individual may ultimately not be rendered bankrupt because he or she has been able to pay his or her debts. In addition, the petition for bankruptcy could reveal that a person to whom money is owed is in some financial difficulty, or it may be incorrectly interpreted that such a person is in difficulty when he or she is simply seeking repayment of a debt. Those concerns were part of the thought process. During my time as a legal practitioner, bankruptcy matters were heard in camera. However, I will double-check this matter because I do not wish to mislead Deputies. The question of whether bankruptcy proceedings should or should not be held in camera will be further considered in the context of the insolvency Bill.

In regard to family law, I have been concerned for many years that family law judgments are something of a mystery to the public. The High Court issues published judgments in which individuals' backgrounds remain anonymous. Newspapers occasionally publish such judgments, but they tend to be confined to access by lawyers, even though all published High Court judgments are readily available on the Courts Service website to anybody who wishes to access them. However, a substantial amount of family law is dealt with at District Court and Circuit Court level. While the latter occasionally issues written judgments - although it is unusual for it do so - written judgments are very rarely issued from the District Court. There is a need to ensure information is more readily available to the public on how the family law system is working. I will return to this issue next year in the context of separate legislation.

Amendment, by leave, withdrawn.
Section 28 agreed to.
Sections 29 and 30 agreed to.
Chairman: Acceptance of amendment No. 4, in the name of the Minister, will involve the deletion of section 31.

I move amendment No. 4:

In page 31, before section 31, but in Part 10, to insert the following new section:

31.—The Irish Nationality and Citizenship Act 1956 is amended—

(a) in section 15 (as amended by section 4 of the Irish Nationality and Citizenship Act 1986)—

(i) by the substitution of the following for subsection (1)(e):

"(e) has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for

special reasons, allows—

(i) made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and

(ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.",


(ii) by the insertion of the following after subsection (3) (inserted by section 8 of the Irish Nationality and Citizenship Act 2004):

"(4) In this section and section 15A, ‘citizenship ceremony' means a ceremony, held before a judge, or a retired judge, of the District Court, Circuit Court, High Court or Supreme Court, at a place and in a form approved by the Minister, at which the applicant has made the declaration and undertaking referred to in subsection (1)(e) or section 15A(1)(h).”,

(b) by the substitution of the following section for section 15A (inserted by section 5 of the Irish Nationality and Citizenship Act 2001)—

"15A.—(1) Notwithstanding the provisions of section 15, the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse or civil partner of an Irish citizen if satisfied that the applicant—

(a) is of full age,

(b) is of good character,

(c) and that citizen—

(i) are married to each other, have been married to each other for a period of not less than 3 years, and are living

together, as attested to by affidavit submitted by the citizen to the Minister in the prescribed form, or

(ii) are civil partners of each other, have been civil partners of each other for a period of not less than 3 years, and are

living together, as attested to by affidavit submitted by the citizen to the Minister in the prescribed form,

(d) is, in the case of a spouse, in a marriage recognised under the laws of the State as subsisting,

(e) had immediately before the date of the application a period of one year’s continuous residence in the island of Ireland,

(f) had, during the 4 years immediately preceding that period, a total residence in the island of Ireland amounting to 2 years,

(g) intends in good faith to continue to reside in the island of Ireland after naturalisation, and

(h) has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for

special reasons, allows—

(i) made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and

(ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.

(2) The Minister may, in his or her absolute discretion, waive the conditions at paragraph (c), (e), (f) or (g) of subsection (1) or any of them if satisfied that the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship.

(3) Paragraph (g) of subsection (1) shall not apply to an applicant for a certificate of naturalisation to whom subsection (4) applies.

(4) Any period of residence outside the island of Ireland, during which —

(a) the applicant for a certificate of naturalisation to which this section applies was—

(i) married to and living with his or her spouse, or

(ii) in a civil partnership with and living with his or her civil partner, and

(b) the applicant’s spouse or, as the case may be, civil partner was in the public service, shall be reckoned as a period of residence in the island of Ireland for the purposes of calculating—

(i) continuous residence under paragraph (e) of subsection (1), or

(ii) total residence under paragraph (f) of that subsection.

(5) In this section,'civil partner' has the same meaning as it has in section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.".


(c) by the substitution of the following section for section 17 (amended by section 12 of the Irish Nationality and Citizenship Act 2004):

"17.—An application for a certificate of naturalisation shall be—

(a) in the prescribed form, and

(b) accompanied by—

(i) such fee (if any) as may be prescribed, and

(ii) such evidence (including statutory declarations) to vouch the application as the Minister may require.".".

This amendment deals with citizenship matters and the issue of civil partnerships. The effect of the amendment is twofold: to provide, for the first time in statute, for citizenships ceremonies for those applicants granted Irish citizenship; and to address the position of civil partners, as I referred to on Second Stage.

Our citizenship laws do not currently make explicit and specific provision for citizenship ceremonies, a lacuna we are seeking to address in this provision. Such ceremonies are intended to mark in a formal way the significance of the granting of citizenship. Following a successful pilot ceremony on 24 June, I am seeking to provide for such ceremonies for all successful applicants for a certificate of naturalisation, which will serve to elevate the status of the granting of citizenship and to celebrate a major event in the lives of immigrants. It is appropriate that our citizenship laws should be amended to reflect this new position.

Further ceremonies are being scheduled for later this year at various venues. We were able to hold the pilot ceremony only because there is a specific provision to allow the Minister to exercise his discretion in particular circumstances in order to facilitate the granting of citizenship and the swearing of an oath in a place other than a District Court. However, without a specific provision in the legislation, we could not continue indefinitely to hold the type of ceremony we held in Dublin Castle. That ceremony was warranted because of the large number of notifications of the granting of citizenship which I have signed as part of our efforts to tackle the backlog in applications. We have changed our business systems to reflect a more sensitive approach. In that context, a situation arose whereby thousands of individuals would be granted citizenship but could then suffer a further backlog in the court system in swearing fidelity to the State. Given those exceptional circumstances, it was lawfully possible to have the pilot ceremony.

However, if we reach our objective of clearing the backlog by late spring or early summer of next year, there would not then be a basis for continuing to hold these ceremonies. It is important that people granted citizenship regard it as an important day in their lives and a memorable event in which families can participate. In the pilot ceremony, each individual granted citizenship was permitted to bring with them two individuals, friends or relations. There were many children and spouses in attendance and it was a happy occasion.

In the case of some of the citizenship ceremonies that will take place in July and September, we envisage that because of the numbers involved and our concern to ensure people are not delayed in receiving their certificates, the number of guests per person may temporarily be reduced to one. This will allow us to grant declarations of citizenship and for people to swear their fidelity to the State in greater numbers. However, the intention is that individuals will thereafter have an entitlement to have two guests and that it will continue to be a celebratory occasion. My Department provided refreshments at the pilot ceremony and people were facilitated to take photographs. That is how it should always have been done and how it should continue to be done, regardless of who is Minister for Justice and Equality in the future. The change we have effected has been very much welcomed by many individuals. It is important that we value the individuals who wish to be citizens of our State and to reside therein.

The civil partnership amendments to be included in section 15A of the Irish Nationality and Citizenship Act 1956, as inserted by the proposed section 31, stem from Senator Katherine Zappone's amendment in the Seanad. Unfortunately, we did not have time to debate her proposal on Committee Stage in the Upper House, although it was discussed on Report Stage. While the amendment goes some way to dealing with the citizenship rights of civil partners, I am aware that various other provisions in our citizenship laws also require amendment. I intend to bring forward proposals on Report Stage that will address these issues of citizenship law in the context of civil partnership.

The proposal with regard to the substitution of section 17 of the 1956 Act, as inserted by the proposed section 31, is purely technical, as section 23 of the Act is being replaced. There is no change to the existing text of section 17.

During our discussion on the Finance (No. 3) Bill 2011, I pointed out the need to review the area of citizenship and immigration law in the context of civil partnership. As such, I welcome the Minister's amendment. However, I hope he will be able to shed more light on certain provisions. In regard to the fee, will the Minister clarify that there will be only one fee as opposed to separate fees at the beginning and end of the process?

Deputies from all parties are consistently asked about what constitutes "good character" in the context of the citizenship application process. I have heard, for example, that the receipt of a parking ticket in the past can go against a person when his or her application is being processed. If a person comes to the attention of the authorities, even in the context of a trivial matter such as that relating to parking tickets, that can affect his or her application for citizenship. Issues such as those to which I refer should not determine whether someone is deemed to be of good character. In such circumstances, consideration must be given to the matter of how we decide what constitutes being of good character. Various NGOs continually refer to this issue when providing members with briefings.

I was very conscious of that issue before I became Minister. As I may have stated previously, I have taken a personal interest in these applications. When dealing with applications for citizenship, the circumstances relating to a particular number are simple and straightforward. I refer, for example, to cases where someone is the spouse of an Irish citizen, where he or she is living in Ireland and where no issues arise. In practical terms, the Minister receives a list of such individuals with a recommendation that citizenship be granted. In such cases, there is not a great deal which needs to be investigated by the Minister.

There would, however, be a significant number of applications in respect of which issues arise. The individuals involved may have lived here for many years and some of them may have very minor criminal convictions for matters such as failure to pay parking tickets. The person involved may have parked on double yellow lines or he or she may have been driving at 60 km/h in a 50 km/h zone and a court fine may have been imposed. Other issues may arise in respect of individuals who have been living and in employment here for many years but who are currently unemployed and in receipt of social welfare payments. These people would be entitled to receive such payments as a result of their making PRSI contributions in the past.

It previously appeared to be the case that a blanket rule was being applied. In other words, if someone was in receipt of social welfare payments, by and large he or she was not granted citizenship. I was also concerned that where there had been very minor convictions, on occasion these were treated with greater seriousness than was necessary. I have personally reviewed many hundreds of these applications. In fact, I believe we are well beyond the hundreds and into the thousands at this stage. I am seeking to ensure that we deal with applications in a common-sense and sensitive way. I assure the Deputy that, on my watch, no one will be refused citizenship because he or she was involved in a very minor breach of the law of the nature which any of us might commit on a bad day. If a person has not paid a parking ticket simply because he or she forgot to do so, he or she should not be prevented from obtaining citizenship. The position is similar if someone has been convicted of driving at 5 km/h above the speed limit in a built up area and has been given a small fine, which he or she failed to pay by post thus causing the matter to come before the courts. It is important that people should not be denied citizenship for nonsensical reasons.

It may have been the case in the past that citizenship was not granted in instances where it should have been granted. I am of the view that the officials in the Department have dealt, at all times, in good faith with all applications they have received. On occasion, however, information becomes available which indicates that, for reasons of character, it may not be appropriate to grant citizenship. When further inquiries are made and additional information is sought, it emerges that such reasons do not exist. In a significant number of cases it appeared, on the basis of the initial application, that it would not be appropriate to grant citizenship. When further inquiries were made, however, I discovered that it was appropriate to grant citizenship in such cases. This does not mean that every application for citizenship is granted. That is not the case.

In the context of the applications that are received, on average approximately 10% are refused. Some of those refusals relate to individuals whose list of convictions would be as long as both our arms. Despite their convictions, these people believe that we should still grant them. There are some individuals who display extraordinary nerve in seeking citizenship in this State in circumstances in which they have literally been guests in one of our residential institutions, such as Mountjoy Prison, Cork Prison or Limerick Prison. These people appear to believe that having been visitors at such institutions on more than one occasion, they should be granted Irish citizenship. It is applications of that sort which will not be granted.

There are some individuals who seek citizenship and who have defrauded our social welfare system. If people are going to conduct themselves in that way in this State, they will generally not be granted Irish citizenship. There are circumstances where character issues or financial issues indicate that it is not appropriate to grant citizenship. On my watch, however, people who are committed to this State, who have a role to play in it and who are settled here with their families will not be denied citizenship for frivolous reasons.

On the second matter the Deputy raised - I am anxious that no one will be in any way misled with regard to the intent of the legislation - the amendment makes provision for the charging of a fee for applicants. One of the anomalies under existing legislation is that if a person is granted citizenship, he or she must pay a fee of €950. However, if someone is refused citizenship, he or she does not pay anything. Citizenship applications that are refused are often those which involve most time in the context of people's records being checked. For example, the Garda vetting bureau is obliged to investigate people's backgrounds and inquiries may have to be made through the Department of Social Protection. The most time-consuming and, from the perspective of the public service, the most costly applications are those which are refused.

Having reviewed this issue I thought it was reasonable that we consider, and at least have in place, a statutory provision which would enable the charging of a modest fee in respect of applications for citizenship. No final decision has yet been made regarding this matter. I felt it was important that, in the context of the legal architecture, this be available as a possibility at a time when the State is facing financial difficulties and when we want to ensure that we can meet the expense of providing services. The matter is under consideration and it could not arise without at least providing a legal mechanism which would allow for such a fee to be charged.

I welcome the Minister's comment to the effect that on his watch people will not be refused citizenship for frivolous reasons. I do not want to pre-empt his departure but eventually someone else will be Minister for Justice and Equality. In that context, is he considering introducing legislation to try to address this issue? The Minister indicated that 10% of applications for citizenship are refused. Is there any indication regarding the number of instances where citizenship is granted when such cases are subjected to further review?

I understand the reasoning behind what is envisaged in respect of the fee. Would it not make sense just to have one fee and if an application is successful, then that is it and people would not be obliged to pay a further fee? I do not believe it would be fair for those who are of good character and who are successful in gaining citizenship to be penalised twice, while those who are not granted citizenship will only be obliged to pay one fee.

I would not regard the payment of a fee as penalising anybody. At a time when we must meet very serious financial obligations, I must ensure that my Department is dealing with its affairs in a manner that is financially sound. There are two different stages involved. The first involves making the application and the second involves it being processed. I do not believe it would be fair to charge the full fee where an application has yet to be processed. Situations can arise where someone may apply for citizenship and where his or her personal circumstances may change. A number of applications for citizenship are made where applicants decide in the intervening period that their destiny is elsewhere. They leave the State and have no intention of returning to reside here and citizenship may either not be granted or they may indicate that do not want it to be granted. It would be unfair to charge those applicants the full amount and it would become cumbersome if people were to pay funds, which we then had to repay. It is reasonable that there will be a modest initial fee. It is important to understand that the grant of citizenship is an important thing in individuals' lives and it also gives them additional rights and entitlements in this State across a broad range of areas.

In terms of the fee one pays on the grant of citizenship, it must be borne in mind the entitlements and rights that derive from being an Irish citizen, they are rights that give one a freedom not only to obtain an Irish passport but to travel freely anywhere within the European Union and that gives one certain other rights that arise and are conferred on Irish citizens. It ensures that any children subsequently born to a person are Irish citizens and one is entitled to a broad range of benefits that may arise from being an Irish citizen. It is not unreasonable, particularly at a time of great financial difficulty for this State, that a fee is required to be paid on the granting of citizenship. It certainly is not my present intention to increase the sum to be paid, but it is reasonable there be a modest application fee for the processing of applications. Because it will be modest, if we charge one, I doubt it will be much of a barrier to some of the criminal recidivists who have applied for citizenship, although I have a residual hope it might result in some of them, who have no chance of being granted citizenship, being deterred from applying because they may resent paying anything for the purpose of the application. One can submit an application and there will no consequences in that if one is not granted citizenship, the submission of the application will not incur a cost.

On the 10% figure, this was a figure we examined at the end of the first quarter of this year. It would be interesting to see the statistic for the second quarter which has just been completed, which I have not yet seen. I would have dealt with only a small number of applications between 9 March and 31 March and would have dealt with the major portion of them during April and May. It will be interesting to see if the figure in this respect is still 10%. When we know the figures, we will give them to the Deputy. The 10% figure was gleaned from that statistic based on the people who were refused citizenship. If one is refused citizenship, there is nothing to stop one, on another occasion, applying again should one's circumstances change. There is nothing in the legislation at present that would stop repeat applications, even by individuals who have no chance of being granted citizenship. That might be something we would examine. I hope, ultimately, to bring before the Oireachtas another item of legislation on citizenship issues, amalgamating any of the amendments that are made into one Act. There are certain other reforms I have in mind that could be worthwhile bringing forward, but there is no possibility of that happening this year because of the legislative programme we have. It would be reasonable to have a provision that if a person was refused citizenship a period of years would have to elapse before he or she applied again but currently there is nothing to stop repetitive applications. In that context, where people have been refused for very good reasons, it is also quite reasonable that they should be required to pay an application fee if very rapidly they put in a further application where their circumstances certainly have not changed.

I welcome the amendments in regard to civil partnership. Has the Minister any idea of the volume of legislation that will have to be updated in view of the new commitments under civil partnership? Will this be an ongoing process?

There is a continuing process. There is an area I am concerned about that must be addressed. The original legislation for some reason did not properly address issues relating to children. I presume it did not address them for fear of controversy and generating some level of excitement in the area but there is a reality that we need to confront as legislators. There are individuals who have entered civil partnerships in circumstances in which one of them already has a child, perhaps from a previous heterosexual relationship. There is a capacity for individuals in civil partnerships to have children of their own. We have had a court case already involving two women in circumstances where one gave birth to a child and the other woman regarded herself as the parent of a child, even though obviously there was father who provided the sperm, and that gave rise to a great deal of conflict over an access issue and the civil partners going to Australia on a temporary basis. We need legislation that specifically addresses the issue of the position of children within civil partnerships and parental issues in those circumstances. There is a need to deal with that also in a more detailed way in the context of cohabitees. Unfortunately, the legislation that was enacted avoided addressing those issues and they are issues we need to address in a broader range of family law reforms, which again, unfortunately, we will not have an opportunity to deal with this year but which we need to deal with in the not too distant future.

I must interrupt the Minister.

I am conscious a vote has been called.

If members are satisfied, I will put the question and conclude consideration of this section. Is it agreed that the new section be there inserted?

We will have to leave the conclusion of it until we resume.

I just want to indicate------

We will leave the conclusion of it until we resume. We will suspend now and we can deal with the Deputy's point when we resume, as I do not want to rush the consideration of the legislation.

Sitting suspended at 10.50 a.m. and resumed at 11.20 a.m.

We will probably table an amendment on Report Stage to confine it to one fee, be it at the beginning or the end. I wished to flag that with the Minister.

Amendment agreed to.
Section 31 deleted.
Question proposed: "That section 32 stand part of the Bill."

I have a number of concerns about the section. Given that we have only two minutes remaining I am not sure whether to discuss them now or later. It will take more than two minutes to discuss the section.

It is proposed to resume at 3.30 p.m. today to conclude the Bill. Is that agreed?

We are in the Chamber today for Committee and Remaining Stages of the Criminal Justice Bill until 4.30 p.m.

I presume the Bill will not go past 3.30 p.m. as Question Time is scheduled.

Question Time is later today.

Yes. Question Time is late today.

We are in the Chamber from 2 p.m. until 4.30 p.m.

I am told that Report Stage of the Criminal Justice Bill is unlikely to take too long.

We are not opposing it.

The Bill will probably be concluded very quickly. We can provisionally say 3.30 p.m. to resume but if we are all stuck in the Chamber it will not work. However, the reality is that we will be well finished by then in the context of the timeframes of what else is on in the Chamber. It is possible that we could get delayed starting but I do not know the answer to that.

We will ask the clerk to check the details. We will do our best to convene at 3.30 p.m., or as close as possible to it in order to complete the Bill. Is that agreed?

To make life easier, perhaps we could agree that if we do not make it for 3.30 p.m. we might convene 15 minutes after the conclusion of the Criminal Justice Bill so that everyone knows where they stand, if the room is available.

That makes sense.

Sitting suspended at 11.25 p.m. and resumed at 3.30 p.m.

As I pointed out on Second Stage, I have real concerns about this section. We opposed it when the Immigration Bill 2004 went through the House. In terms of our main concern, last year an Irish citizen with a Chinese background was arrested because he could not produce identification when he was stopped and asked for it. The person who stopped him and asked him for ID did not believe him and he was arrested and brought to the station where he was detained for a number of hours. His wife had to go to the station with his passport to prove he was an Irish citizen.

The issue we have with this section is that the requirement for non-nationals to carry ID and produce it on demand will lead to racial profiling. I understand the reason behind it, namely, that it is an immigration control mechanism and so on but there must be other ways of dealing with it. I would have preferred us to deal with this section as part of a wider conversation on the Civil Law (Miscellaneous Provisions) Bill, which the Minister has reinstated on Committee Stage. I would have preferred it if we had left out this section. I am aware the Minister had to put some reference in the Bill because of the High Court judgment in Dokie v. DPP but I would like to hear his views on it from a Department point of view. Is he proposing to examine it and what are his views on it?

I thank the Deputy for raising the issue. This is an area of sensitivity. I am aware that in addressing this area there are two concerns which, on occasions, can clash. The first concern is that we must treat every citizen of this country equally and that no judgments of any nature should ever be made about an individual based on religion, racial characteristics, colour or any of the different areas that arise.

In that context, there is always a concern over the effectiveness of legislation required to protect our laws regarding those who seek to come here illegally in the circumstances that arise. A great many people wished to come here as economic migrants. In the context of our current rate of unemployment, the pressures have substantially diminished in this area. I hope that when we turn the economy around, the unemployment rate will reduce and our circumstances will be different. If they are, those types of pressures will, unfortunately, increase again.

It is important that the Garda Síochána, if it suspects someone is an illegal migrant, has failed to obtain the appropriate visas or is working without a work permit, be in a position to check individuals. It is not unusual in most countries that persons who come from another country or, as in our context, from outside the European Union, are required to carry identifying documentation.

The provision we are discussing, which substitutes a new section 12 into the 1956 Act, addresses this issue in that it requires every foreign national present in the State, other than a foreign national under 16, to produce, on demand, a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and, in case he or she is registered or deemed to be registered under the Act, his or her registration certificate. Failure to produce the required documentation constitutes an offence.

What is important - this addresses the Supreme Court judgment - is subsection 2(b) of the provision to be inserted, which stipulates that in proceedings brought against a person for an offence under this section, it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section to which the offence relates. The concept of “on demand” is said to mean “a demand made at any time by the Minister, any immigration officer or a member of the Garda Síochána, for the purposes of establishing that the presence in the State of the non-national concerned is not in contravention of section 5 [of the 1956 Act].”

There may be circumstances in which there is a reasonable excuse for not producing a document. In such circumstances, but where one is subsequently able to produce it, I would not expect the Garda to bring any prosecution. If, by accident, one forgot to have one's passport on one but one was able to produce it later, it would be reasonable to have no prosecution taken against one, provided one were lawfully in the State. We must, however, have laws that give powers to the relevant authorities. These include the Garda, as it will be the main organisation involved in enforcement, and those who deal with border matters. There is also a reference to the Minister. Enforcement requires sensitivity, training and dealing with people in an acceptable manner.

Requests to an individual to produce identifying documentation should always be courteous and they should be capable of producing a response that results in the documentation being made available or an explanation as to why it cannot be produced. I can well understand that if, by accident, an Irish citizen is requested to produce such documentation, it could cause offence. It may be inevitable and there may be instances of it again, but I would expect the Garda, on receiving an explanation demonstrating an individual is an Irish citizen and on being satisfied as to the truth of the explanation, to regard this as the end of the matter. I cannot see how a circumstance could arise in which the Garda would seek some proof in this regard.

This is a very difficult area. I am not sanguine about it but do not know what the alternative is. Most countries have a similar provision. The alternative is that we turn a blind eye to those who flout our immigration laws and simply allow them to establish themselves here. It would make life almost impossible for the Garda Síochána to inquire into these matters. This would undermine our entire system of providing visas and would be unfair to those who deal with matters lawfully in coming to this State.

I do not believe we will ever have the perfect solution to this matter. There will always be the unfortunate possibility of an Irish citizen being asked to produce identifying documents. It is not intended that Irish citizens will be so requested but it is my hope that, if it occurs, it will be rare. I am advised by An Garda Síochána that it needs the powers we are providing to ensure we can apply our laws in this area. The legislative measure under discussion provides the wording recommended by the Attorney General. In the circumstances, and based on the advices I have received, I am obliged to enact it. On a personal level, I wish we did not need this type of provision in our legislation but I must deal with this area in a responsible manner as Minister for Justice and Equality. In the circumstances, I have no choice.

When we deal with the larger Bill, encompassing immigration, refugee and asylum issues, the Deputy may well come up with a different solution. I invite him to do so in a legislative context if there is one. Much work has been done on that Bill. I cannot give an exact date as to when the amendments will be published. There are in the region of 300 amendments to be made to the Bill as originally published in its third form by the previous Government. We will substantially improve the measure and I hope the amendments will be published and furnished to Deputies so they can consider them in advance of Committee Stage in September. I am conscious there are many and certainly do not want to publish them only a week before Committee Stage. Deputies are entitled to two to three weeks, at least, in which to consider them. That Bill will provide an opportunity to return to this issue. The Deputy is very welcome to return to it but, at present, by way of an interim measure based on the advices I have received, I am compelled to include the provision under discussion in the Civil Law Bill.

I understand where the Minister is coming from and acknowledge he is compelled as result of the judgment but he should understand where I am coming from also. There are concerns. If an Irish citizen is asked for identification, he generally cannot prove it on the spot. I do not walk around with my passport. While some control mechanisms must be put in place, the issue becomes blurred if these mechanisms impinge upon the rights of citizens.

My main concern is over racial profiling. Members of the Garda, who are usually those who demand identification, very rarely stop somebody who is white and looks Irish. If somebody is from a different ethnic background or has a different colour, they will generally be stopped. We must recognise that we now have a multicultural society and that many Irish citizens look different from what is regarded as the norm. This legislation is, therefore, not the right way to proceed. I do not have the answer and acknowledge this is a complicated area but believe we need to have this conversation when dealing with the immigration Bill. Unfortunately, I have no choice but to oppose this section and to call a division thereon. While I wish this was not necessary, that is the position.

The alternative to dealing with it in this manner would be to require every person in the State, including all Irish citizens, to carry identity cards. This is what happens in some European countries in which everyone is required to have his or her identity card to hand all the time. Some people, myself included, regard putting such a mechanism in place to be unnecessary. Some are of the view that so doing is in violation of people's civil liberties, their entitlement to freedom of movement and to be able to go where they wish within the State without being obliged to answer to any other individual, provided they are behaving in a lawful manner. As I stated, we live in an imperfect world and I do not consider this to be a perfect solution. While I wish there was a different mechanism that could be used or a different way of dealing with this, I am afraid I must retain this provision in the Bill. It is open to the Deputy, in the context of dealing with the broader immigration Bill when it comes before this committee, to consider a different approach and I invite him to bring forward a different mechanism he may consider creates less possibility of difficulty for someone who is an Irish citizen. Unfortunately however, at present I cannot envisage a way around dealing with this issue in this fashion.

Was thought put into using the term, "non-national" in section 32? I note that in general discussion, people appear to have moved away from using that term because some people took offence at its usage. Was consideration given to its usage? More generally, I acknowledge the Minister will return in the autumn with more substantial legislation. However, an issue that eventually must be dealt with in Ireland is the presence of many illegal immigrants who have been here for a long time. How should this issue be addressed? In the United States after a certain period, my understanding is one sometimes can apply for a green card there, even though one has been an illegal resident, if one meets certain criteria. Perhaps some system should be put in place in the future whereby one could regularise one's position if one did certain things. This would not be in such a way that would encourage illegal immigration but the essential purpose would be to accept that some people have been here for a long time and in the circumstances, if they are good upstanding people, they should be allowed get permission to remain. Are there plans in that regard?

I shall take the Deputy's first question first. The phrase, "non-national", has been used in previous legislation and it seems the appropriate and succinct description. In the context of dealing with the new Bill, I am open to any alternative form of wording Deputies may suggest. As for the issue of people who have been here for a long time but whose presence may be illegal, this gives rise to frequent controversy in the United States. There have been instances of people who have been illegally resident there for 25 to 30 years and who suddenly found themselves caught by the immigration authorities and who then were required to leave the United States.

There have been amnesties in this regard from time to time. I recall being part of a delegation from both Houses of Oireachtas that travelled to the United States in the 1980s to persuade Members of Congress and the Senate to give some sort of amnesty to illegal immigrants from Ireland. This is a constant and continuing conversation between Members of this House and Members of the Congress and Senate. While it cooled down as a conversation in the early part of the 2000s, it undoubtedly will become a further part of conversation again because of the economic circumstances. Many Irish people have been resident illegally there for many years. They find themselves caught in the United States in circumstances whereby if a relation dies in Ireland, they are concerned that if they attempt to leave, they might never be able to return. This illustrates how difficult is this entire subject.

As for the present position here, my main objective is to introduce to the House amendments to the Immigration, Residence and Protection Bill to put in place modern legislation that addresses all needs in this regard and makes the entire subject considerably less complex. Moreover, the objective when dealing with asylum issues is to allow all applications to be made in a single application, to provide a mechanism for some form of appellate system when visas are refused, which is not in place at present, as well as to provide some transparency in such matters. After the enactment of this legislation, there may be further issues to consider as to where we stand with regard to many individuals who currently are in this State under a variety of statuses, some of whom have no status, and who appear to be locked in a form of limbo.

However, the State also must protect its immigration laws and consequently, nothing must be done to encourage large numbers of illegal migrants to come into this country for a number of obvious reasons. Apart from protecting the integrity of the immigration laws, we cannot afford in the current financial climate to cope with an influx of a large number of illegal migrants. There is neither the jobs available for them nor the capacity within the public finances to support them. Consequently, one must be extremely careful as to how issues in this area are addressed. As a Minister, I must be very careful about what I say in this regard, lest something I say is open to misinterpretation and leaves people jumping to the wrong conclusions on a particular issue.

There is not a great deal more I can add to this point, other than to state I am anxious to make progress on the Immigration, Residence and Protection Bill. Thereafter, all members will be obliged to assess their positions in the context of the different issues that arise both in respect of the new circumstances that then will exist and the legacy issues that may need to be addressed.

Question put:
The Committee divided: Tá, 6; Níl, 1.

  • Creed, Michael.
  • Kenny, Seán.
  • Shatter, Alan.
  • Stanton, David.
  • Timmins, Billy.
  • Tuffy, Joanna.


  • O’Brien, Jonathan.
Question declared carried.
Sections 33 to 41, inclusive, agreed to.

I move amendment No. 5:

In page 37, before section 42, to insert the following new section:


42.—In this Part—

"relevant material", in relation to a tribunal, means all material which is evidence received by, or a document created by or for, the tribunal whatsoever (including any document which is incomplete or in draft form only);

"responsible Minister", in relation to a tribunal, means the Minister of the Government to whom the appropriation-in-aid was granted out of which the expenses of the tribunal are paid;

"tribunal" means a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 is applied under section 1 of that Act.".

Amendment agreed to.

I move amendment No. 6:

In page 37, before section 42, to insert the following new section:

43.—This Part applies to a tribunal irrespective of whether the tribunal is appointed before, on or after the enactment of this Part.".

Amendment agreed to.

I move amendment No. 7:

7In page 37, before section 42, to insert the following new section:

44.—(1) Where a tribunal has completed its inquiry or has indicated to the responsible Minister that it is about to complete its inquiry, the responsible Minister shall, as soon as it is practicable for him or her to do so and subject to the consent of the Minister for Finance, by notice in writing given to the chairman of the tribunal, require the chairman to deposit the relevant material—

(a) with such person who is, or at such place which is, specified in the notice, and

(b) within the period specified in the notice for the purpose.

(2) For the purposes of assisting the chairman of a tribunal to perform his or her functions under subsection (4) or (5) in a manner that is as efficient, effective and expeditious as is practicable, the responsible Minister may set out in a notice under subsection (1) guidelines in respect of the performance of those functions by the chairman.

(3) Subject to subsection (5), the chairman of a tribunal shall comply with the requirements of a notice under subsection (1) (including any guidelines set out in the notice) given to the chairman in respect of the relevant material.

(4) The chairman of a tribunal may, in the course of complying with the requirements of a notice under subsection (1) given to the chairman in respect of the relevant material, and after having regard to section 45*, cause that material to be accompanied by his or her—

(a) opinion in writing as to which parts of that material, if any, need, in particular, to be considered for the purposes of section 45(2)*, and

(b) reasons in writing for holding the opinion referred to in paragraph (a).

(5) Subject to subsection (6), the chairman of a tribunal to whom a notice under subsection (1) has been given in respect of the relevant material may, with the consent of the responsible Minister, return any part of that material to the person who gave the part concerned to the tribunal if—

(a) the chairman is satisfied that—

(i) the retention of the part concerned is not necessary in order to understand any of the following:

(I) any of the proceedings of the tribunal;

(II) any interim report of the tribunal;

(III) the final report of the tribunal;


(ii) the part has little, if any, historical worth or relevance to either—

(I) the matter that the tribunal was established to inquire into, or

(II) the findings of the tribunal,


(b) the chairman—

(i) has prepared a record which gives a general description of the part of the relevant material concerned, specifies the name and address of the person to whom the part is to be returned and specifies the basis or bases on which the chairman is, in respect of that part, satisfied as described in paragraph (a), and

(ii) ensures that such record accompanies the relevant material which is not returned to any person pursuant to this subsection.

(6) Where the chairman of a tribunal would, pursuant to subsection (5), return a part of the relevant material to the person who gave the part concerned to the tribunal but for the fact that—

(a) the person has declined to accept the return of the part, or

(b) the whereabouts of the person cannot be reasonably ascertained,


(i) the chairman may, with the consent of the responsible Minister, cause the part to be disposed of in such manner as the chairman thinks proper, and

(ii) the chairman shall—

(I) prepare a record which gives a general description of the part, specifies the name and address of the person who has declined to accept the return of the part (if paragraph (a) is applicable), specifies the name of the person to whom it is sought to return the part but whose whereabouts cannot be reasonably ascertained (if paragraph (b) is applicable), specifies the basis or bases on which the chairman is, in respect of that part, satisfied as described in

paragraph (a) of subsection (5) and specifies the manner of disposal of the part, and

(II) ensure that such record accompanies the relevant material which is not returned to any person pursuant to subsection (5) or otherwise disposed of pursuant to this subsection.

7) Where a tribunal has ceased to be seized of the relevant material (whether pursuant to the provisions of this section or otherwise), nothing in this section shall be construed to prevent the responsible Minister, or another Minister of the Government for the time being responsible for the storage of the material, from causing the material to be deposited from time to time with such person, or at such place, as the responsible Minister, or that other Minister of the Government, as the case may be, thinks proper.".

Amendment agreed to.

I move amendment No. 8:

In page 37, before section 42, to insert the following new section:

45.—(1) Any relevant material of a tribunal (other than any part of such relevant material which falls within section 44(5)* or (6)*) that constitutes Departmental records within the meaning of section 2(2) of the National Archives Act 1986 is, on the expiry of 30 years after the date of the dissolution of the tribunal, deemed to have been prescribed under section 8(11) of that Act as a class of records to which a certificate granted under section 8(4) of that Act may relate.

(2) As soon as is practicable after the date on which any relevant material of a tribunal is deemed to have been prescribed as described in subsection (1), an officer of a Department of State authorised for the purposes of section 8(4) of the National Archives Act 1986 shall consider whether, after having regard to any opinion and reasons referred to in section 44(4)* that the chairman of the tribunal caused to accompany the material and subject to any consent required under that section 8(4), the material, or specified parts of it, should be certified under that section 8(4).

(3) Subject to subsections (1) and (2), the National Archives Act 1986 applies to any relevant material of a tribunal (other than any part of such relevant material which falls within section 44(5)* or (6)*) that constitutes Departmental records within the meaning of section 2(2) of that Act.”.

Amendment agreed to.

I move amendment No. 9:

In page 37, before section 42, to insert the following new section:

46.—(1) The Freedom of Information Acts 1997 and 2003 do not apply to a record relating to the inquiry into any matter by a tribunal unless—

(a) the record was created before the appointment of the tribunal, or

(b) the record relates to the expenses of the tribunal or other matters concerning the general administration of the tribunal.

(2) Subsection (1) applies whether the record concerned is—

(a) held by the tribunal, or

(b) deposited with a person, or at a place, in compliance with the requirements of a notice under section 44(1)* given to the chairman or former chairman, as the case may be, of the tribunal.

(3) In this section, "record" has the same meaning as in the Freedom of Information Acts 1997 and 2003.".

Amendment agreed to.

Before moving amendment No. 10, I wish to refer to another matter. I mentioned on Second Stage that we might be bringing forward an amendment with regard to the mediation service, linking it to the Legal Aid Board. It has not proved possible to have that detailed amendment ready for Committee Stage. There remains a possibility, and it is no more than that, that if it is completed it will be brought forward on Report Stage. We will obviously consider it then if we have that opportunity.

I move amendment No. 10:

In page 38, to delete line 8 and substitute the following:

"(f) Regulation (EC) No. 392/2009;

(g) Part III of the Merchant Shipping (Liability of Shipowners and Others) Act 1996;

insofar as those statutory provisions are in force and insofar as those conventions and regulations are applicable to or in the State.",".

This is basically a technical amendment to section 42 which provides, inter alia, that all civil actions involving accidents sustained by a person on board a vessel at sea will be excluded from the remit of PIAB, the Personal Injuries Assessment Board. Legal advice has clarified that EC Regulation 392 of 2009, which provides for the implementation of the 1974 Athens convention, relating to the carriage of passengers and their luggage by sea, as amended by the protocol of 2002, will not take effect in Ireland for a number of months. It is therefore necessary to insert an amendment to include a reference to Part 3 of the Merchant Shipping (Liability of Shipowners and others) Act 1996. Part 3 provides for the implementation of the version of the Athens convention of 1974, as opposed to the amended protocol of 1996 that has effect currently.

The amendment also makes future provision for the effect of the ratification of the Athens convention, as amended by the protocol of 2002.

Amendment agreed to.
Section 42, as amended, agreed to.

I move amendment No. 11:

In page 39, before section 43, to insert the following new section:

43.—Section 40 of the Commissions of Investigation Act 2004 is amended—

(a) in subsection (1) by the substitution of “and 2003” for “to 2003”, and

(b) in subsection (3) by the substitution of “and 2003” for “to 2003”.”.

This is a drafting amendment to correct the collective citation of the Freedom of Information Acts as appears in section 40 the Commissions of Investigation Act 2004.

Amendment agreed to.
Section 43 agreed to.
Sections 44 and 45 agreed to.

I move amendment No. 12:

In page 40, before section 46, to insert the following new section:

46.—The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 is amended—

(a) in section 34(3) by the substitution of “a class D fine” for “a fine not exceeding €127”,

(b) in section 39(2)(a) by the substitution of “a class C fine” for “a fine not exceeding €254”,

(c) in section 63—

(i) in subsection (2) by the substitution of "a class C fine" for "a fine not exceeding €254", and

(ii) in subsection (3) by the substitution of "a class E fine" for "a fine not exceeding €63",

(d) in section 186—

(i) in subsection (2) by the substitution of "a class C fine" for "a fine not exceeding €254", and

(ii) in subsection (3) by the substitution of "a class E fine" for "a fine not exceeding €63",


(e) in section 197 by the substitution of “a class C fine” for “a fine not exceeding €254”.”.

This amendment realigns the fines provided for in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 with the fines for offences in the family law code. It eliminates the risk that a higher penalty applies where a spouse commits the offence that if the same offence were committed by a civil partner. In drafting the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the penalties for offences under that Act were aligned with the penalties for analogous offences in family law such as removal or disposal of household chattels without consent of the other party or a court in section 9(2) of the Family Home Protection Act 1976 and section 34(2) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Part 2 of the Fines Act 2010 provides for classification, indexation of fines according to the year in which the relevant offence was created or fine last amended. That Part was commenced on 4 January 2011. The effect of its commencement is that a fine set at a specified monetary value in 2010 is not now in the same class as a fine of the same monetary value set in 1976. For example, the fine in section 34(3) of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was set at €127, the same amount as the fine in section 9(4) of the Family Home Protection Act 1976 which was then £100 for the same offence. Commencement of the Fines Act 2010 means that the fine specified in 1976 Act became a class D fine whereas the fine in 2010 Act became a class E fine.

Amendment agreed to.
Question proposed: "That section 46 stand part of the Bill."

On Second Stage, I pointed out this section is a diminution of the status of the Irish language. The Minister put forward an argument about ensuring the wording of legislation being available to those it affected. However, extensive translation facilities are available with considerable numbers of translators available to ensure the Irish version of final legislation can be provided.

Given the commitment in the programme for Government to review the workings of the Official Languages Act, to precede with this measure is to predetermine the outcome of that review and send it a signal that the Government sees this provision as being the norm for future legislation. This measure will diminish the Irish language's working status in this country. It is ironic it was introduced the day the President of the European Parliament addressed the Seanad, considering the fight for many years to ensure Irish as a working language of the European Parliament and Union.

Conradh na Gaeilge has been in contact with Members on this issue stating no changes should be made to translation provisions before the review of the 2003 Act. A second translation section was established in 2009 to cope with these measures. Can this matter be addressed by examining the operation of the two sections? Will the Minister explain the logic as to why the Department of Justice and Equality is dealing with this measure in this legislation?

I expressed my disappointment about the inclusion of this measure on Second Stage. This legislation deals with 40 different Acts with various small administrative measures. It is disappointing and without reason to add this section on the Official Languages Act 2003. I listened to the Minister's argument on Second Stage in which he claimed it is a matter of urgency to post the new legislation on the Internet as soon as possible to ensure victims of domestic violence know it is in place. However, there are two translation sections devoted to legislation in the programme for Government.

Given the commitment to reviewing the Official Languages Act, this amending section should be introduced then to allow consultations. This legislation has been considered by both Houses in the space of only eight days. I do not see the urgency regarding this section. Will the Minister consider withdrawing it? If not, we will be pressing for a vote on it.

This is the second Department that is trying to avoid its responsibilities under the Official Languages Act. The Department of Social Protection approached the contemporaneous publication of legislation in the same way in social welfare legislation last year, using the same emotive blackmail that if the provision were not included in the legislation, someone would suffer.

I have problems with playing one right off against another. As a Member who has been blocked in attempting to avail of my right to address legislation through the Irish language, I find it difficult to understand the logic behind this section. While I can contribute to the proceedings of a Bill in Irish, I cannot amend a Bill published in English in Irish. My right as an Irish speaker in this country is restricted. The way around this - I argued with the previous Government, as others have done - is that Bills be published contemporaneously in both languages. That means one overcomes some of the problems in the delay that happens, and happened for many years, between the passage of a Bill and the Bill being available in Irish.

The Official Languages Act 2003 was supposed to change that so that an Act had to be available in both languages at the same time because there were challenges in the courts as the Irish language version was not available. In some cases Bills were published and it could be ten years before the Irish language version was available. With the University College Galway (Amendment) Bill 2005, with which I dealt a number of years ago, the Irish language version of a Bill which was being amended was not available despite it having been enacted 20 years previously, which further restricted my ability to carry out my work as a representative in this House in Irish. I cannot see the logic behind this other than that this is a policy of the new Government, that, as miscellaneous provisions Bills and other Bills are being passed, it provides a clause similar to the one included here to avoid that Department's responsibility in terms of the Irish language.

In the main, the vast majority of Bills produced in this House do not change substantially between their initial presentation and their final point of passage. Even if the translation started, as it did, for instance, in the Social Welfare and Pensions Bill 2011, as the Bill started going through the Houses because the Minister, Deputy Burton, had indicated that she was not intending to take any amendments if at all possible because such was the rush on the Bill, then that Bill could have been translated and ready in time for the President to sign the Act in both languages.

This is a retrograde step. Not only should we be rejecting this but we should be strengthening the Official Languages Act 2003 to ensure that Bills and Acts are published at the same time in both official languages. Anything else means that we are a standard below that which one would enjoy in many other bilingual societies. It is an affront to all of those who campaigned to have the Irish language officially recognised in Europe and who are setting demands, including all parties in this House, of the European Parliament and the European institutions on the Irish language which, it now seems likely we ourselves are not willing to uphold.

I have one question. Subsection (2) does not preclude the publication of legislation as Gaeilge. It does not specify which official language is used, but is the intention that it only be published as Bearla, in English?

I will address this issue again and deal with the questions the Deputies have raised. The problem that has arisen in practice is that when the Report Stage of Bills is complete there has been an undue delay between the enactment of the Bill through both Houses and the publication of the final version of the Bill, as an Act, in both the English and the Irish language. As Deputy Ó Snodaigh commented, the enactment process through the House is in English. Under the Official Language Act 2003, the issue is that, ultimately, upon proper and full publication, the Act must be published simultaneously in both Irish and English.

However, since that legislation was passed the use of electronic means to communicate has evolved and become more sophisticated and the position is that Deputies can access Bills on the web as they go through the different Stages. We are in the anomalous position that once a Bill has completed its passage through both Houses, it seems that it cannot in its final form be immediately made available to the public by way of electronic means because there must be a delay while translations are effected.

The previous Government was advised by the previous Attorney General that this was an issue that required to be addressed because it could give rise to particular difficulties. If, for example, the Garda Síochána wanted to effect a prosecution under new legislation enacted, it may not have available to it the Bill in its final form. If they assumed the Bill had been enacted without amendment and proceeded to prosecute an individual, the individual brought before the court may not have access to the final form of the Bill and that would constitute a major infirmity in any prosecution that might take place. I gave the instance here, in the case of this Bill, that should there be amendments to this Bill on Report Stage in the area, for example, of domestic violence that would give some additional protection to an individual or that might in some way change the initial provisions in the Bill, it would be inimical to an individual who required protection to not be able to access the final form of the Bill until some time had elapsed for a translation to take effect.

I note the Deputy asked why can we not have instant simultaneous translation. It seems in practice that such is not possible because of the large amount of legislation that is enacted and the timeframe that must be taken to ensure, not merely that the Bill in its original form is properly translated, but that it is accurately translated where amendments are incorporated. There have been Bills where at the last minute very substantial and important amendments were made on Report Stage. There have been emergency financial Bills where substantial changes have been made on Report Stage in one or other House and then within 24 hours, they have been accepted in whichever House in which they were not initiated. It is very important that measures such as this are available.

The previous Government intended to include in its Civil Law (Miscellaneous Provisions) Bill 2010 a provision addressing this issue. The current Attorney General has given the same advice, that it is necessary to do this because there is a frailty in the law. The Minister who is concerned with the Gaeltacht, Deputy Deenihan, has requested that this provision be included in this Bill.

Deputy Tuffy wondered why it is provided for here. It is at the request of a ministerial colleague based on the advice of the Attorney General that it is necessary we address this issue and it is unwise that we postpone it any further.

Which colleague is that?

The Minister for Arts, Heritage and the Gaeltacht, Deputy Deenihan.

Would the Minister, Deputy Deenihan, himself not bring forward a Bill on the matter?

This Bill was available and the Attorney General regards the matter as urgent. The Minister, Deputy Deenihan, supports the change that is required to be made. It was agreed at Government that the change would be included in this Bill because this is a miscellaneous provisions Bill and this is a matter of civil law. It is appropriate it be included in this Bill. Kicking the can down the road to include it in a different Bill will not change the problem or vary the issue, or, indeed, change the solution.

I have heard what the Deputies have said. I cannot remove this provision from the Bill. It is a provision the Government believes is necessary.

However, there is no question of diminishing the status of the Irish language. The reality, as I stated both in the other House and in this House, is that we enact legislation through English. The initial Bills are drafted in English, the amendments are tabled in English, they come, initially, in their final form in English, and there is no point in engaging in a fiction and pretending it is differently and depriving ordinary citizens of this country of immediate access to legislation passed in this Parliament. It is a very important right of citizens of this State to have ready access, and in so far as we can provide it, instance access, to legislation that we enact. It should not be secret for a period of time pending a translation being effected. In the circumstances, it is important that we retain this provision in the Bill.

It is extraordinary that an Roinn Ealaíon, Oidhreachta agus Gaeltachta is proposing this measure, especially given that I anticipate it will be the lead Department in the review of the Official Languages Act. The signal it sends is not encouraging.

It is unbelievable that the Minister for Arts, Heritage and the Gaeltacht, Deputy Deenihan, is prepared to stand over a dilution in the right to the Irish language. That may say a lot for his agenda. In response to the points made by the Minister, Deputy Shatter, the reason amendments are tabled in the English language is because we cannot table them in Irish. My amendments to the University College Galway (Amendment) Bill 2005 were refused when I presented them in Irish, which required me to translate them into English before resubmitting them. However, I had to argue for them in Irish because most of the debate on that Bill was in Irish. That demonstrates the absurdity of the legislative process. One of the ways of addressing the undue delay between the passage of an Act and its official publication is to publish Bills in both official languages at the same time. That would address not only the problem of tabling amendments and debating Bills through the medium of Irish but also the undue delays in publication.

There are often delays of several weeks before the President signs into law Bills that have passed through the Houses and such delays are not solely because the Irish language version is not available. There is also a transitional period. The Minister suggested that somebody might suffer on foot of a delay in implementing provisions on domestic violence. The criminal law Bills we pass are often delayed for months and years because An Garda Síochána does not have the operational guidelines necessary to implement them. Undue delays are not always the fault of legislators.

As for secrecy, the business of the Dáil is open. People are aware that once a Bill drafted in English has passed through the Oireachtas, it is not fully enacted in any language until the President has signed it. There is always a gap. When this Bill completes Report Stage in the Dáil, it will be circulated to Members. It is not the case that it is secret or unavailable, rather it is not an official document until it is signed by the President. The reason it must be made available in both languages is because the Irish and English versions can be used in any court proceedings. The Minister's arguments are, therefore, somewhat spurious and I regret the bad standard the Minister, Deputy Deenihan, has set for the Irish language if this is a sign of his Department's treatment of Gaeltacht issues.

I want to record my disgust that the Minister, Deputy Deenihan, could propose a provision which would undermine the status of the Irish language. It says more about his agenda than anything else. How long does it normally take to translate legislation, for example, the Bill before us?

I do not know how long it will take to translate this Bill because we have not enacted it.

A Bill of this size.

Not having been in Government previously, I can only speak of my experience as an Opposition Member of Bills which were enacted during the lifetime of two previous Governments, in respect of which, when I went looking for the final form in English, some weeks seemed to elapse before I could access it. I often had to rely on Bills that had been completed at an earlier stage in the House. If one knew what the Report Stage amendments were, one had it. That has been an ongoing problem.

I am afraid that I will not be changing my mind on this issue. I have to abide by the advice of two Attorneys General in two different Governments. I am surprised that Deputy Calleary chose to ignore the advice of an Attorney General appointed by his own party during its time in Government.

As I said to the Minister on Tuesday evening, it was not discussed by the party and if he had raised it with us, he would have got a flea in his ear.

Question put:
The Committee divided: Tá, 4; Níl, 2.

  • Shatter, Alan.
  • Stanton, David.
  • Timmins, Billy.
  • Tuffy, Joanna.


  • Calleary, Dara.
  • O’Brien, Jonathan.
Question declared carried.

I move amendment No. 13:

In page 40, before section 47, to insert the following new section:

"47.—The Enforcement of Court Orders Act 1940 is amended by the substitution of the following for section 8:

8.—(1) Where a monetary amount payable by virtue of an antecedent order within the meaning of the Family Law (Maintenance of Spouses and Children) Act 1976 is not duly paid, the person entitled to the payments (in this section referred to as the applicant) may apply to the relevant District Court clerk for the issue of a summons directed to the person by whom such amounts are payable (in this section referred to as the defaulter) requiring the defaulter to attend before the District Court at a time and date specified in the summons for the purpose of giving evidence to the court as to his or her means and assets and on the hearing of such summons such person may be examined on oath by or on behalf of the applicant.

(2) Having heard evidence as to the amount outstanding on foot of such order and having heard evidence as to the means and assets of the defaulter, the District Court Judge may make such order as to the payment, collection or recovery of the amounts outstanding under such order as to the Judge seems fair and reasonable including one or more than one of the following:

(a) where the Judge is satisfied that there are monies due and owing by any other person to the defaulter, an order directing such other person to pay the monies concerned to the relevant District Court clerk to the extent of the amount outstanding to the applicant on foot of the order referred to in subsection (1) and which is specified in the order together with the costs of the application under this section,

(b) where the Judge is satisfied that there are monies which will become due or may become due by any other person to the defaulter, an order directing such other person to pay any such monies to the relevant District Court clerk to the extent of the amount outstanding to the applicant on foot of the order referred to in subsection (1) and which is specified in the order together with the costs of the application under this section,

(c) where the Judge is satisfied that it would be effective to do so, an order that the amounts outstanding to the applicant referred to insubsection (1) be levied by distress against the goods of the defaulter and the sale of such goods and for the transmission to the relevant District Court clerk of the proceeds of sale after payment of all costs and expenses properly arising in connection with the levying of distress and the sale of the goods.

(3) Every distress and sale made in pursuance of an order of the District Court Judge under this section shall be carried out by the appropriate under-sheriff.

(4) All moneys received by the relevant District Court clerk shall be paid as soon as practicable after receipt to the applicant.

(5) In this section "relevant District Court clerk" means the District Court clerk for the District Court area in which the defaulter resides or carries on any profession, business or occupation, unless by virtue of any other enactment relating to the antecedent order concerned any other District Court clerk is the relevant District Court clerk as respects that antecedent order.".".

This provides for the enforcement of foreign family law maintenance orders, which rely on section 8 of the Enforcement of Court Orders Act 1940. This provision will allow a judge, if he or she feels it would be effective, to make what would generally be termed a garnishee order if moneys are owed to the debtor by a third party to ensure money is directed to the creditor. To make an order which is broadly similar to the concept of appointing a receiver by way of equitable execution if moneys become due, these two provisions cover circumstances where money may be owed to a maintenance debtor in respect of work done. The amendment limits this to the extent of any maintenance outstanding. The final element retains an existing power in the 1940 Act to allow a judge make an order to sell goods if he or she feels this would be effective to recover the debt due to the maintenance creditor. This was rarely used in the past but it is worth retaining as it may be useful on occasion. An existing pre-emptive arrest provision has been deleted on the advice of the Attorney General.

Amendment put and declared carried.

Amendments Nos. 14 to 17, inclusive, are related and will be discussed together.

I move amendment No. 14:

In page 40, before section 47, to insert the following new section:

48.—The Courts of Justice Act 1936 is amended—

(a) by the substitution of the following for section 32:

32.—Each city and town specified in the Second Schedule to this Act shall be an appeal town for the purposes of this Part of this Act.".

(b) by the substitution of the following for section 34:

34.—(1) Subject to subsections (6), (7) and (8), the High Court shall, not less than once in every year, at such times as shall be determined by the President of the High Court, sit in the appeal towns referred to in subsection (2) for the purposes mentioned in that subsection and to transact such other business as shall lawfully be brought before it.

(2) Subject to subsections (6), (7) and (8) the President of the High Court shall designate the appeal towns in which the High Court shall sit in accordance with subsection (1) to hear appeals from the Circuit Court.

(3) For the purposes of this section, one or more judges of the High Court shall hold sittings of the High Court in the appeal towns referred to in subsection (2) where their attendance is required as determined by the President of the High Court.

(4) The High Court when sitting in an appeal town in accordance with this section shall be known and is in this Act referred to as the High Court on Circuit, and the sittings of the High Court in any such appeal town in accordance with this section shall be known and are in this Act referred to as sittings of the High Court on Circuit.

(5) The President of the High Court shall determine, in respect of each sitting of the High Court on Circuit, the number of judges who shall sit for the purposes of the High Court on Circuit and the day and hour at which such sittings shall commence in an appeal town on each such Circuit.

(6) Where in respect of any sitting of the High Court on Circuit, the judge (or if more than one judge shall be sitting, the senior of the judges) who shall be sitting ascertains that there is no business to be transacted at such sittings in any particular appeal town, that judge may direct in writing that it shall not be obligatory to hold such sitting in that appeal town.

(7) Where the President of the High Court determines that the effective discharge of the business of the High Court so requires, he or she may direct that no sitting of the High Court on Circuit shall be held in a particular appeal town in a particular year.

(8) Where the President of the High Court gives a direction in accordance with subsection (7), appeals from the Circuit Court which would, but for such direction, be due for hearing in the appeal town concerned, shall be heard at—

(a) a sitting of the High Court on Circuit in such other appeal town as the President of the High Court may designate, or

(b) the High Court sitting in Dublin, as the President of the High Court may direct.

(9) Where the President of the High Court gives a direction under this section he or she shall make arrangements for the

direction to be sent to the county registrar for the county in "which any appeal town so affected is situate.",

(c) by the substitution of the following for section 35:

35.—(1) The President of the High Court shall, if and when he or she thinks proper, travel and sit as a judge of the High Court on Circuit, and every other judge of the High Court shall travel and sit as a judge of the High Court when requested by the President of the High Court to do so.

(2) The Chief Justice shall, if and when he or she thinks proper, travel and sit as a judge of the High Court on Circuit, and every other judge of the Supreme Court shall travel and sit as a judge of the High Court on Circuit when requested by the Chief Justice to do so, and every such other judge when so travelling and sitting shall be an additional judge of the High Court.

(3) The President of the High Court after such consultations as he or she thinks proper with the judges concerned, shall determine, in respect of every sitting of the High Court on Circuit, the several judges of the High Court who shall be requested to travel and sit for the purposes of such sittings and the particular judge or judges who shall so travel and sit on each High Court Circuit, and the President of the High Court may alter or vary any such determination.

(4) The Chief Justice after such consultations as he or she thinks proper with the judges concerned, shall determine, in respect of every sitting of the High Court on Circuit, the several judges of the Supreme Court who shall be requested to travel and sit for the purposes of such sittings and the particular judge or judges who shall so travel and sit on each High Court Circuit, and the Chief Justice may alter or vary any such determination.",

(d) by the repeal of section 36,

(e) in section 38 by the substitution of the following for paragraph (b) of subsection (1):

"(b) in every other case—

(i) subject to subparagraph (ii), to the High Court on Circuit sitting in the appeal town designated for the appeal in accordance with section 34(2),

(ii) where a direction has been given pursuant to section 34(7) in respect of the appeal town in which the appeal, but for such direction, would have been heard, to the High Court on Circuit sitting in such other appeal town, or to the High Court sitting in Dublin, as the case may be, as directed in accordance with section 34(8),

(iii) in subsection (4) by the substitution of "to any other appeal town or to Dublin" for "or to any other appeal town on the same circuit or to Dublin", and

(iv) in subsection (5)(a) by the substitution of “in another appeal town” for “in another appeal town in the same circuit”,”,

(f) by the substitution of the matter in the Schedule to this Act for Schedule 2 of that Act.”.

The amendments will insert a new section 48 to make changes to the provisions of sections 34 to 36, inclusive, and section 38 of the Courts of Justice Act 1936 in respect of sittings of the High Court on circuit. They replace the current requirement applying to such sittings to allow for greater flexibility and use of limited judicial and administrative resources. The changes are proposed following close consultation with the President of the High Court and I am grateful to the High Court Judiciary for its co-operation. It is proposed to replace the requirement that sittings take place twice yearly with a requirement that they be held not less than once a year. This proposal will increase efficiency in the delivery of service by ensuring sittings are not held where there is insufficient court business to be transacted, thus allowing court resources to be directed where they are most needed.

It is proposed to make Dublin the default venue for hearing Circuit Court appeal cases. This will enable judges assigned to hear such appeals to take other work in sittings in Dublin in the event of his or her list outside Dublin collapsing early in the sitting. Without such a revision, the judges concerned remain assigned to a sitting that will not take place, which is a waste of judicial time and resources. Under the current provisions if a judge is on circuit and the list is dealt with or the parties reach settlement, the judge cannot return to the Four Courts and hear another case that week. The amendments will facilitate that efficiency. The current position is somewhat illogical. Another provision will allow the president to decide whether a High Court sitting is warranted or whether the list might be amalgamated with another location.

Amendment No. 15 contains provisions with regard to facilitating the Circuit Court county registrar dealing with bills of cost where there is a dispute between a solicitor and his or her client. I want to withdraw this amendment because I want to give it some further consideration. A technical issue may arise with it which we may need to revisit and I will return to it on Report Stage. There is an obvious advantage with the county registrar dealing with disputes between solicitors and their clients where Circuit Court proceedings have taken place rather than the Taxing Master of the High Court, which, probably unnecessarily, makes matters more expensive than they should be. I want to re-examine the technicality of the drafting and I will return to it on Report Stage.

Amendment No. 16 will amend section 65 of the Courts of Justice Act 1936 to provide clear legal authority for the prescription of certain court fees to contribute to the recovery of the directly attributable costs of court services provided in the various courts jurisdictions and offices, in particular the fees charged in respect of proceedings conducted in the Commercial Court which was a recommendation in 2009 of the special group on public sector numbers and expenditure. Court fees are proposed by the Courts Service board and therefore subject to close scrutiny by the board. Providing the necessary legal clarity to levy appropriate court fees will not in any way impinge on the basic tenet of providing access to justice for all citizens.

The amendments also repeal a dormant provision about commissioners of the High Court. Amendment No. 17 is a related technical amendment regarding the revised Schedule 2.

My question is a little related.

Try to keep it as close as you can to the amendment.

It is a first cousin.

The Minister spoke about costs and fees. There is a suggestion the Government might do something about the issue of solicitors' and barristers' fees. I was a solicitor, but I have not practised for a long time. An issue that constituents often raise is that they do not feel happy with the process of appealing fees to the Law Society because it is not an independent body. Does the general issue come under the brief of the Minister or another Department?

At present there are two mechanisms with regard to legal fees and two different issues can arise. If a bill is produced on behalf of a successful litigant to recoup costs against an unsuccessful litigant and if the person against whom an order for costs has been made does not agree the bill, this leads to a taxation of costs process. If litigation has occurred at Circuit Court level, it is the county registrar who does that work and if it is at High Court level, it is the Taxing Master of the High Court who does so.

If there is a dispute between a solicitor and client with regard to either fees charged by the solicitor or fees charged by a barrister or both, this involves a solicitor and own client bill of costs. At present, this type of dispute is dealt with only by the Taxing Master of the High Court. Where this form of dispute arises out of litigation in the Circuit Court, it seems appropriate that it would be dealt with by the county registrar who at present deals with what are known as party and party costs arising out of Circuit Court litigation, and the amendment will facilitate this.

Disputes between solicitors and their clients can arise in circumstances that do not involve litigation. A solicitor may do a small or substantial amount of work for a client in a company law matter, dealing with a will or regarding a range of various issues which do not in fact involve litigation in the Circuit Court or High Court. Arising out of this type of work, there may be a dispute. A client may believe, wrongly or rightly, that he or she has been overcharged, and there must be a mechanism to address this. At present, this will also go to the Taxing Master of the High Court.

People may be charged a small or large amount in fees for legal work. For work concerning a major company law matter which may involve the takeover of another company, fees may run into tens of thousands of euro, or to hundreds of thousands of euro for advising one company on the stock market taking over another, which may never involve litigation. However, someone may simply consult a solicitor for a will which should cost perhaps between €50 and €100 and that person might be confronted with a bill for €5,000 and wonder why. It is important these issues are dealt with appropriately.

I have some concerns about the amendment because I am not yet happy it deals adequately with disputes between solicitors and clients where there has not been litigation but where fees might be substantial and go beyond current Circuit Court limits. The amendment needs to be worked on a little further.

Anything we do in this area is of a temporary nature because a huge amount of work has been done on the preparation of a legal services Bill with substantial interaction between the Department and the Office of the Attorney General. An entirely new system will be put in place for dealing with issues of legal costs between party and party and solicitor and client to provide a more efficient system, to try to provide more transparency when it comes to bills of account or fees charged by the legal profession, and to ensure people have proper avenues to follow if they have a difficulty.

At present, if there is a dispute between a solicitor and client over the solicitor's fees, if one does not travel the route of the Taxing Master, one can do what the Deputy mentioned, which is to make a complaint to the Law Society. It has a twin track approach whereby it can also deal with disputes between a client and a solicitor over fees charged. The Law Society tends to deal with the smaller level of dispute regarding smaller bills. Higher level bills involving large fees result in disputes being addressed by the Taxing Master of the High Court.

The law in this area will be a good deal clearer and simpler when the legal services Bill is enacted. As I stated on previous occasions, we hope it will be published by the end of September. It will require a great deal of careful consideration by the Houses of the Oireachtas, in particular by this committee, because it will be a very detailed and comprehensive measure and it is important we get it right.

I thank the Minister.

Amendment agreed to.
Section 47 agreed to.
Amendment No. 15 not moved.

I move amendment No. 16:

In page 41, after line 25, to insert the following:

49.—Section 65 (as amended by section 9 of the Civil Law (Miscellaneous Provisions) Act 2008) of the Courts of Justice Act 1936 is amended by the insertion of the following subsections after subsection (1):

"(1A) In prescribing fees under paragraph (a) of subsection (1) the Minister may—

(a) prescribe different fees in respect of different offices referred to in that paragraph and in respect of different services provided by those offices, and

(b) have regard to all or any of the expenditure referred to in subsection (1B) so that so much of that expenditure as the Minister considers reasonable is recovered from those fees.

(1B) The expenditure referred to in subsection (1A)(b) is the expenditure incurred or, as the case may be, reasonably anticipated to be incurred, by the offices referred to in subsection (1)(a) or the Courts Service in the:

(a) establishment, maintenance and operation of those offices or courts;

(b) transaction by those offices, or the courts to which they relate, of the business they are required to transact;

(c) provision of services and facilities to users of those offices or courts.”.”.

Amendment agreed to.

I move amendment No. 17:

In page 41, after line 25, to insert the following new schedule:




























Amendment agreed to.
Schedule agreed to.

I move amendment No. 18:

In page 5, line 19, after "1964;" to insert the following:


Amendment agreed to.
Question proposed: "That the Title, as amended, be the Title to the Bill."

Could I ask the Chairman to repeat the Title?

If the Minister insists, I can.

I wonder why the Official Languages Act was not included in the Title. It states "other enactments" but, because the Act comprises a full section, I presumed it would get a mention in the Long Title.

It is covered by the reference to other enactments and is not affected in any shape or form. The Deputy may wish to table an amendment on Report Stage that makes express reference to the Act.

I may do that yet.

We could consider the amendment.

Question put and agreed to.
Bill reported with amendments.

We will debate Report and Final Stages next Wednesday.

The debate will be only for an hour, yet the Minister has already indicated he will table a number of amendments. I am concerned that an hour will not be long enough. We have discussed guillotines, which are being used practically every week now. On a Bill of this size and given the number of amendments that may be tabled on Report Stage, an hour is not enough. I wanted to flag this issue now to determine whether we could make an arrangement.

I suggest the Deputy raise it with his party Whip for the Whips' meeting. It is gone beyond the committee now.

It may prove to be the case that we might not be in a position to table a couple of those amendments I hope to introduce. When we see our final amendments and if we get into difficulties next week - I will be at a meeting of the Justice and Home Affairs Council on Tuesday - I would be happy to discuss the matter with the Deputies and Whips on Wednesday to give us some extra space if necessary. It may not be required, but we can discuss it with our mutual Whips and have them discuss it among themselves if it is. If this means we will need to sit until a little later next Thursday, I would have no difficulty with that.

I thank the Minister, Deputy Shatter, and his officials for attending.

Thank you, Chairman.

The select committee will adjourn until 9.30 a.m. on Tuesday, 19 July 2011 to consider the Criminal Justice (Community Service) (Amendment) (No. 2) Bill 2011.