Thursday, 10 September 2020

Questions (3)

Martin Kenny


3. Deputy Martin Kenny asked the Minister for Justice if it was her decision to omit section 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 from her request for a waiver of pre-legislative scrutiny; and if she will make a statement on the matter. [23037/20]

View answer

Oral answers (7 contributions) (Question to Justice)

In my hand I have the briefing note for the pre-legislative scrutiny for the general scheme of the Civil Law and Criminal Law (Miscellaneous Provisions) Bill which was passed just before the recess. That makes no mention of Chapter 3 relating to the admissibility of business documents in civil cases.

Was it the Minister's decision to omit that and to subsequently mislead the House and the Deputies here?

Absolutely nobody had any intention to mislead the Dáil, to omit anything intentionally or to try to sneak anything in with this legislation, as has been suggested before. The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 was enacted on 6 August and constitutes the Government response to the new challenges posed to our courts and legal systems by the current pandemic. The Act also goes beyond the pandemic, as we outlined at the time, and will make many of our legal processes more efficient and effective in the future.

As the Deputy will be aware, the Act covers a wide range of issues in respect of both our civil and criminal legal systems, including the reform of the law concerning coroners; the introduction of a statutory basis for our courts to conduct remote hearings; the admissibility of business records as evidence in civil proceedings, which the Deputy has referred to; the lodgement of documents with the courts by electronic means, known as e-filing; the lodgement of statements of truth with the courts by electronic means; provision for the wider use of video links between persons in custody and the courts; enhancing and widening the existing provisions on giving evidence through video link; providing for appeals in criminal proceedings to take place via remote hearings; removing the existing requirement to transport prisoners between prisons; and providing for the remote meetings of State bodies. A significant amount of work went into this legislation. It will also make it easier for the Courts Service to alter operating hours.

I assume the Deputy means to refer to Part 3, Chapter 3 of the Act entitled, Business records and other documents in civil proceedings, which was the focus of much debate at the time, rather than section 3 of the Act, which is a standard provision. The position is that there was no decision to exclude Part 3, Chapter 3 of the Act from pre-legislative scrutiny. I am very clear on that. The Deputy is right that the general scheme of the Bill, as approved by Cabinet at its meeting on 13 July, did not include Part 3, Chapter 3. On 14 July, I sought a waiver for the requirement of pre-legislative scrutiny under Standing Order 173 for the Bill, as it was primarily a Covid-19 related measure and needed to be progressed quickly. I sought the waiver, in good faith, on the basis of the general scheme approved by Cabinet.

In bringing this proposal to Cabinet, I indicated the potential for inclusion in the Bill of additional measures to support the holding of criminal and civil trials under Covid-19 restraints and these were subsequently included in the Bill, as approved by Government on 20 July. The legislation we introduced last week went through in a similar fashion and I thank Deputies for their support in that. Changes were made to the initial draft of that Bill when it was eventually published. This is the norm and it often happens. There was no attempt at concealment.

It is not the norm for this to happen; it is totally unusual for legislation to go through without pre-legislative scrutiny. It is not normal and should not be normal. The Minister made the point that nobody attempted to deceive anyone or to sneak anything in. I do not understand how she can say no attempt was made when that is exactly what was done. We were asked to waive pre-legislative scrutiny on the basis of the briefing note we received. That briefing note did not mention Part 3, Chapter 3, as the Minister has conceded. Was it the Minister's decision not to mention the chapter? At the end of the day, we are all on board in trying to ensure everything that can be done to combat Covid-19 is done. We all work together to do so. We have to trust each other and trust that we are all doing the right thing. The problem here is that, when something like this happens, it feeds that small group of negative right-wing people - the people who say we should not wear masks and that all of this is a conspiracy and who spread all of this nonsense across the country wherever they can. The Minister is giving them oxygen by doing this kind of thing. Was it the Minister's decision to do this or was it the Department's decision? Somebody has to be held accountable for misleading the people in this House.

I ask the Minister and the Deputy to co-operate with regard to time so that we can let more Deputies in for questions. Each question is important to the Deputy asking it.

I will say again that there was absolutely no attempt to mislead anybody in the Dáil. When I say this is something which happens regularly, it should be noted that we asked that pre-legislative scrutiny be waived for the previous two Bills I brought forward because of the prevailing circumstances. I appreciate that Deputies allowed us to do so and I thank them for that. Additions were made to both Bills, all of which were necessary at the time. A process was undertaken in putting this legislation together. A medium-term planning group was established by my Department to identify medium-term measures to address the impact of the pandemic on the justice system and on the courts in particular. The group comprised various stakeholders, including the Legal Aid Board, the Insolvency Service of Ireland, the Courts Service, members of the Judiciary and my officials. Part of the group's work was to identify and review measures for inclusion in the Bill. We also engaged with the Law Society in this regard. As the Deputy will know and as I outlined at the time, this particular reform measure has been sought for some time. It is already in place in respect of criminal trials. Our nearest neighbour, which is a similar common law jurisdiction, also has such a measure in place. This was very well understood and had been sought for some time. There was no specific reason for not including it in the earlier process. It was just included at a later date.

The Minister was here when the debate took place. No speaker from the Government or the Opposition spoke in favour of Chapter 3. Everybody said it should be deferred. Everybody in the legal profession to whom I spoke said there was no urgency with this particular issue. Despite this, it was included in the Bill. I want to know who decided to do that because, quite frankly, somebody in the Department of Justice and Equality, under the Minister's watch, had to have decided to do it and to slip it in without her noticing. That person should be sacked because officials are responsible to this House, not just to the Minister. Somebody has to be held accountable when this sort of situation arises. It is totally wrong to break trust at a time when everyone in the country is working together against the coronavirus to ensure our communities and citizens are protected. It is totally outrageous. It was outrageous when it happened over the summer and that has not changed; it is still outrageous. Somebody needs to be held to account for this. If the Minister is saying that it was not her who decided to omit this, she should find out who did and hold that person to account. That has to happen.

I stand over my decision to include this in the Bill. This question was asked of me at the time and I stood over my decision then. The aim of this particular section is to make our legal systems and courts more efficient and accessible. The reason for its introduction is that, in the majority of cases and in the absence of legislative reform, litigants may agree to admit business records without requiring each one to be formally provided in court by a witness to avoid unnecessary costs and delays in court. In a minority of cases, certain litigants may insist on proof of each and every document, notwithstanding that there is no question or doubt as to the authenticity of the documents concerned. This is not in the interests of justice. These cases have posed increasing difficulties for our courts in recent years and highlight the need for statutory intervention.

At the time, it was suggested that I or my Department had been lobbied by various vulture funds. I can categorically say that no vulture fund, bank or anybody else contacted me, my Department or the Office of the Attorney General, which worked with us on this legislation. There were also suggestions regarding a particular case, Promontoria (Aran) Limited v. Burns. What happened in that case is that an application was made to interpret the law as it currently stands with regard to the admissibility of business records in civil cases. Both judgments delivered by the court were clear that this area of the law needed to change. This is why the measure was introduced and the reason I accepted it and passed it through. There was no intention to mislead anybody in the Dáil or any other intention.