I wish to indicate to the House that amendments Nos. 10, 11 and 12 are related and it is proposed, with the agreement of the House, to take for discussion purposes amendment Nos. 9, 10, 11 and 12. Is that agreed?
Child Abduction and Enforcement of Custody Orders Bill, 1990: Committee Stage (Resumed).
SECTION 37.
What are the implications of doing that, a Leas-Cheann Comhairle?
We will take them together for discussion purposes but if Deputy Barrett so wishes, we can have separate votes on each amendment. We will discuss the four amendments together. Is that agreed? Agreed.
I move amendment No. 9.
In page 16, subsection (3) (c), line 47, to delete "appointed under" and substitute "referred to in".
For discussion purposes we are proposing to take amendments Nos, 9, 10, 11 and 12 together.
Section 37 gives power to the Garda Síochána to detain a child who they reasonably suspect is being removed from the State. The circumstances in which the Garda Síochána will have that power are set out in subsection (1) and where the child is so detained subsection (2) requires the Garda Síochána to return the child as soon as possible to the custodial parent or a health board where the child has been in the care of that health board. It may, however, be necessary in some circumstances to deliver the child into care of a health board for the area in which the child is of the time being where, for example, the custodial parent cannot be found or the custodial parent may be the one who has abducted the child and it would not be appropriate to return the child to that parent and the other parent is not in the country. In such cases it will be necessary for the health board to apply under subsection (5) at the next sitting of the District Court for directions as to the child's release from such care or otherwise. Subsection (4) requires the health board to give suitable care and accommodation to the child pending the determination of the application at the next sitting of the District Court.
Amendment No. 10 makes clear that the care and accommodation to be given to the child under subsection (4) may include foster or residential care. In most cases the period in question should be no more than one or two nights but it could possibly be more depending on the decision of the court or the circumstances.
Amendment No. 11 concerns subsection (5) and ensures that the period between the delivery of the child into the care of the health board and the next sitting of the District Court is kept to an absolute minimum. The Minister for Justice mentioned on Second Stage that there may be a problem in that during the August, Easter and Christmas vacations the District Courts outside Dublin do not have daily sittings and it may be some days until a sitting of the court is due in a District Court district. The effect of the amendment is that where the next sitting of the District Court is not due to be held within three days of the date on which the child is delivered into the care of the health board, a special sitting of the District Court will be held within three days. Deputies may recollect that I made a similar amendment to the Child Care Bill when it was going through this House on Report Stage. Amendments Nos. 9 and 12 are purely technical and are drafting changes only to subsections (3) (c) and (5).
I hope the House can agree these amendments.
What are the reasons for the substitution of the words "referred to in" for "appointed under"? This suggests that in the future there will be no proposal to appoint a central authority. It was the wish of all on the Opposition side that we should have an appointed central authority headed by somebody who would deal with these types of cases on a regular basis, and that there would be regular contact between members of the Garda Síochána and the health boards so there would be continuity and understanding. While supporting the Minister's amendment No. 11, which indicates the special consideration we are giving to children in this sad set of circumstances — the Minister is rightly introducing an amendment, which I accept and support totally, insisting that a court hearing be held within three days — does it have to be three days? Could it not be within two days or one day? One has to take into account the mental anguish of a child, given the circumstances of abduction, separation from a parent, parents or guardian and, the minimum time of separation should be involved. Admittedly for administrative reasons it may not be possible to have a court hearing within a shorter period than three days, but I would like to hear the Minister's reasons for selecting a period of three days.
I am also concerned that we are being asked to delete the words "appointed under". As the Bill stands, I would be happier to see those words retained as distinct from the substitution of the words "referred to in". I would hope that the views expressed by this side of the House on this central authority will be taken on board by the Minister on Report Stage. If the Minister's Administration are not prepared to proceed along the lines that those who sit on this side of the House feel he should, then it should be open to future Governments to have the option to appoint a central authority. I do not see any benefit being gained in legislative terms by the substitution of the words "referred to in" for "appointed under". I would like to hear the Minister's views on this, and on the three day period.
I wish to indicate general agreement with the proposals by way of amendments as suggested by the Minister in this area. They are sensible and reflect recent higher court decisions with regard to the status of the health board as an authority for the purpose of taking children into care directly. In addition, they provide good developments in terms of clarifying the sections and insisting upon speed being of the essence for all authorities once a child is taken into custody under the provisions of the Bill.
I fully endorse Deputy Barrett's reservations with regard to the indirect suggestion when we last discussed this on Committee Stage that there is no serious intention on the part of Government to establish an independent autonomous central authority for the purpose of this Bill. Once the Bill comes into law it is intended that the Minister will retain within the Department the administrative authority designated to the central authority under these provisions. There is no intention on the part of the Government to introduce a central authority at any stage. Obviously I would be pressing that that position would not be adopted intractably. If, as Deputy Barrett suggests, we could be writing that position in in an indirect way, I would obviously share his reservations. I hope the Minister can reassure us that he is not, directly or indirectly, moving into a position where a central authority could not and would never be appointed.
I want to reassure the House about this situation. One of the reasons we are making this substitution to delete "appointed under" and substitute "refer to in" is to ensure that as of now the Department of Justice will be the central authority. We want to ensure that reserved in the Bill is the right of future Governments or Ministers for Justice to create a central authority if they feel there is a need to do so. Another reason for the proposed change is to conform with the wording of the convention, and we feel this substitution is closer than what is contained in the convention. I hope that covers what Deputy McCartan has said.
In regard to Deputy Barrett's second query, as far as we are concerned we would like the sitting of the District Court to be on the very next day and, if not, then on the second day, but if there is not a sitting on the first or second day then it must be held on the third day. This is in line with the Child Care Bill and we want to standardise the whole legal situation pertaining to the care of children in our country. Three days is standard in both of these Bills and I hope that that is satisfactory. We would desire that a sitting would be held as quickly as possible but definitely no later than on the third day.
I do not see the Minister's point in relation to amendment No. 9. He is asking us to substitute the words "refer to in" for the words "appointed under". I cannot see how that strengthens his resolve to enable a central authority to be appointed in the future. It appears to me to be the direct opposite. I cannot see why we are being asked to delete the words "appointed under" because they imply an onus to appoint a central authority at some time in the future. I cannot see how substituting the words "referred to in" strengthens it.
In regard to the Minister's reply regarding the District Court sitting, would it not be better to imply in the amendment that it is the clear wish of the House that the court case should be heard the following day, but failing that must be heard within three days? Should we not express the wishes of the House in legislative terms? We would all agree with the Minister that it is far better that the case be heard the following day but failing that it must be heard within three days. I would be anxious that it be implied in the wording that that is our wish. As it stands, it says "or, in the event that the next sitting day is not due to be held within three days of the date on which the child is delivered into the care of the health board, at a specially arranged sitting of the District Court held with within the said three days". Would the Minister look at that for Report Stage to see if he could alter the wording a bit to express in legislative terms what he just said?
Normally the next sitting would mean the next sitting on the very next day and the words "next sitting" are included there. The desire is to have the case heard in the District Court on the very next sitting of the court which, hopefully, would be the following day. We are putting in the proviso with regard to a failure to sit on the next or the second next day that it would be mandatory to have a sitting on the third day. If that flexibility is allowed it would be in everybody's best interest and I hope the House will agree to that.
With regard to Deputy Barrett's comments on amendment No. 10, our legal advice is that if we do not make this substitution we would be tied to one structure. Making the substitution means that there could be a central authority appointed under the Minister or a central authority appointed by the Minister. It gives the flexibility to a future Minister to make a change. We think that is very important and that is what the House desires.
Amendment agreed to.
I move amendment No. 10:
In page 17, subsection (4), lines 5 to 7, to delete "Any child who is delivered into the care of a health board in accordance with subsection (2) (c) of this section shall be given by the health board suitable care and accommodation" and substitute "Where any child is delivered into the care of a health board in accordance with subsection (2) (c) of this section the health board shall arrange suitable care and accommodation for the child, which may include placing the child in foster care or residential care,".
Amendment agreed to.
I move amendment No. 11:
In page 17, subsection (5), line 12, after "District Court", to insert "or, in the event that the next sitting is not due to be held within three days of the date on which the child is delivered into the care of the health board, at a specially arranged sitting of the District Court held within the said three days,".
Amendment agreed to.
I move amendment No. 12:
In page 17, subsection (5), line 13, after "otherwise," to insert "in relation to the child's care".
Amendment agreed to.
Section 37, as amended, agreed to.
Sections 38 and 39 agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill".
In regard to costs, as I understand it the Minister is sticking to the wording of the convention which allows for costs to be recovered. Is there any discretion there to make it obligatory that costs be paid in certain circumstances? I accept totally that there are certain circumstances where it would not be practical to have it obligatory in legislative terms to recover costs because it may not be possible to do so. However, I can envisage other cases where it may work as a deterrent and be in the interest of the legislation to make it obligatory to recovery costs. I would like to hear the Minister's views on that.
The whole convention creates a situation whereby the central authority in each state shall be responsible for its own legal costs pertaining to any case and that they shall not recover those costs from the central authority in another state. Section 40 clearly spells out what is contained in the convention in that it makes it obligatory on somebody who has abducted a child to return that child at his own expense and not at a cost to the State or to the central authority.
Question put and agreed to.
SECTION 41.
I move amendment No. 13:
In page 18, subsection (1), line 18, to delete "may" and substitute "shall, within six months of the passing into law of this Act".
If there is agreement in the House I suggest that amendment No. 14 be taken with No. 13 as it relates to the same section and deals with the same matter.
We can take them together for discussion purposes and there will be separate questions. Is that agreed? Agreed.
I do not know whether it is appropriate to take two sections together on Committee Stage.
No. They must be taken seriatim.
The position I wish to achieve in moving this amendment is to introduce some element of obligation on the Minister to act under the provision of this Bill as passed. It might seem a somewhat ridiculous proposition for a legislator standing in the national Parliament to suggest, directly or indirectly, that the fact that we might pass laws in this House does not necessarily mean that we act upon them. The practice has grown up in the drafting of Bills coming before this House, particularly in the area of the rights of the citizen, whereby we pass the laws in principle, but we are also obliged by the Government of the day to include the proposition that the provisions of the Act will not come into play until the Minister passes an order enforcing it. There is a number of examples of this outstanding in our legislation. A Bill passed in 1984 in part provided for the video tape recording of interviews of suspects in police custody as and when the Minister would introduce a regulation or an order but, almost seven years later, that provision has not been acted on. The Child Care Act, which is most directly related to this area of law — passed in the life of this Dáil — will not come into effect for a number of months if not years to come. It is estimated that the financial requirements of that legislation will mean that no Minister will sign an order implementing the provisions of the Child Care Act for one, two, three or more years.
For the first time today the Video Recordings Act which was passed more than a year ago has one of its preliminary orders on the Order Paper of the House. I noticed an advertisement in the national press advising the public that they would be obliged to licence under some of the earlier provisions of the Act but not of the Act in its entirety. Finally, the incitement to racial hatred legislation has not yet been implemented fully because the ministerial orders have not been made or acted upon.
A strong tendency is creeping in to much of the legislation we are now passing, in the area of rights of the individual in particular and the regulation of the behaviour of society generally, allowing the Minister to act in the future to bring certain sections into play. It can be argued that a certain amount of ground work has to be done before the legislation can operate. I would much prefer to see that addressed by means of a deadline in the legislation when it is debated in the Dáil, along the lines that the Act shall not come into effect until a certain number of days or months have elapsed. The Minister would have a certain amount of breathing space in which to operate from the time of the passing of the Bill to its implementation.
The formula contained in section 41, and in earlier sections in regard to regulations generally and the establishment of a central authority is not acceptable because of the use of the permissive obnoxious word "may". Section 41 states that the Minister may make regulations for the purposes of giving effect to the Act but the immediate logical corollary of that is that the Minister may not make regulations. That is, unfortunately, what is happening all too often.
While this House gives permission tardy, sloppy, lazy Departments and Ministers do not take up our invitation and do not act on the legislation put on the Statute Book. I instanced a number of them. All kinds of reasons, developments and changes in the climate, political or otherwise, outside are availed of subsequent to this House passing a Bill into law as to why certain provisions, if not all the provisions of a Bill, should not be acted upon by the Minister of the day. I do not think that is satisfactory. It is demeaning of the procedures of this House that we are asked to spend our time and energies legislating and find subsequently that a Minister without the gumption, the courage or the political decisiveness of the day may change his or her mind and say, "While that may have been the situation as pertained in the House on 27 February 1991, things have moved on and have changed". The way to deal with that is to bring back amending legislation and ask this House to change its collective legislative mind. It is not good legislative practice.
Under the provisions of amendment No. 13 I suggest we take out this obnoxious word "may" and substitute it with the word "shall"; in other words making it obligatory on the Minister to introduce regulations and to do so within six months of the passing into law of this Bill. In considering the drafting and preparation that goes into presenting this legislation to the House there is ample time within six months of a Bill passing into law, for a Minister to take what steps are necessary to give effect to the law.
The second amendment, No. 14, in my name on behalf of The Workers' Party, suggests that it is desirable, if not obligatory, that any regulations to be made by the Minister, in bringing this statute into law, should be laid before this House and not passed into law untill a motion affirming them is passed. In other words, it gives this House the opportunity to review and to let its voice be known with regard to any regulations drafted for the purpose of giving effect to the law. This is another undemocratic and anti-legislator provision that is all too often and easily relied upon. Much of the nuts and bolts of legislation is left out of Bills and left over to a day when a Minister, and his officials, have time to put regulations together and that is the last we see of it. Very important provisions about the workability, the implications and accessibility of legislation are left aside for the purposes of regulations and this House, in practice, never get an opportunity to take any action or to do or say anything about those regulations once published and laid before the House in the form of the negative motion of the Minister.
The need for this matter to be addressed is doubly necessary in the context of this type of legislation where the general construction of it is simply to have a number of preliminary sections that do no more than bring into play the terms of an international agreed convention. The convention is given the effect of law by the earlier sections we have almost disposed of.
Consequently, a whole area is hardly addressed at all in the consideration of the legislation. We are asked to look at the preliminary sections and the way in which the Minister proposes to implement the convention but the convention is not open to amendment. I cannot, for example, in the course of this debate suggest we turn to page 27 of the Bill and amend Article 38 at line 10 because it contains a wrong provision. I cannot do that because this is not legislation but rather the implementation into domestic law directly of an internationally agreed convention, using language, ideas and structures which are often alien and unsuited to the domestic situation. We are trying to work in this type of formula of bringing in a international agreement into domestic law. The Minister is working to introduce legislation to make that whole mishmash operate but it is important that we have an opportunity at some stage to review those regulations once they are drafted. For those reasons I hope the Minister will accept that my amendments are reasonable and based upon genuine fear for the legislative process under which we are asked to operate in bringing this Bill before the House.
The fear expressed by Deputy McCartan is shared by a number of people on this side of the House because of our experience in recent years. As Deputy McCartan has said, there have been instances where regulations have not been made to bring parts of an Act into being which, in my opinion, showed total disrespect for the Houses of the Oireachtas. These are supposed to be the Chambers where laws are made. Of course, it is far more convenient for a Department and Minister to have plenty of scope to do things, but we are the people who are answerable at the end of the day. People will rightly point to us and say "You are the people who make the laws, so why do you not implement them?" We will have to reply "When we passed that law it made provision that the Minister would have to make regulations for that section to come into force but he has not made those regulations yet". This leads me to ask are we really a law making Assembly?
For that reason I support the principle of Deputy McCartan's amendment. There may be exceptional circumstances where for one reason or another it would be practically impossible to bring all regulations into being within six months. I can think of rare occasions where negotiations would be continuing and it would be in the common good that a decision should be postponed for a month or two. However, if that is going to be the case, an obligation should be imposed on the Minister, if he has not made the regulations, to come back here within six months and explain the reason for the delay.
To answer any possible criticism of Deputy McCartan's amendment, perhaps the Minister would accept the principle of the amendment and provide that regulations shall be brought into being within six months of the passing into law of this Bill, unless approval to the contrary has been sought and got from both Houses of the Oireachtas. That would be a reasonable extension to the principle Deputy McCartan's has expounded here today. While I agree with the principle of his amendment, I would make allowance for the rare occasions when it might not be possible for the Minister to bring regulations into being within a period of six months. The Minister can cover himself in this regard.
I ask the Minister to consider Deputy McCartan's amendment and the point I have made — unless the Minister gets the approval of both Houses of the Oireachtas, all the regulations will have to be made within a period of, say, six months. As I said, this would mean the Minister would have to come back to both Houses of the Oireachtas, who are supposed to be the law making bodies, to explain why it was not possible to make the regulations within the set period. I do not think it is acceptable for us to pass a law and leave it to the Minister to decide when to bring in the regulations. We will not have a clue when he will bring them in.
When I was Fine Gael spokesperson on Justice in 1987 and 1988 I dealt with the Intoxicating Liquor Act. One of the sections in that Act dealt with the sale of alcohol in supermarkets. The regulations governing that issue have not yet been brought into being, three years later, and there is no obligation on the Minister to come back here and explain why. Various people have asked me why something has not been done in this area as it was dealt with in the 1988 Intoxicating Liquor Act. The same situation exists in relation to the Video Recordings Act, which I again dealt with during 1987-89.
Section 3 of the Extradition Act.
There are numerous sections of Acts which were to come into being by way of regulation, but that was the last we have heard of them. Even though these regulations may relate to an exceptional part of a Bill we have no right to insist that they will be brought into being.
I support the principle of Deputy McCartan's amendment. Perhaps the Deputy will consider my proposal to give the Minister some leeway — if it is not possible for him to introduce the regulations within a period of six months he should come back here to explain why and seek an extension of a further three or six months. It is important that the Minister, whoever he is, respects both this Chamber and the Upper House, the Assemblies where our laws are made. We should not give powers to a Minister who may never bring a certain section of an Act into being, without putting an obligation on him to answer to both Houses.
I agree with the points made by my colleagues on this side of the House. We have had many sad experiences in regard to the introduction of regulations in the social welfare area. Very often we only find out what is happening in the areas of social welfare and health when people come to our clinics or offices to complain about their problems.
The current trend is to include the meat of the legislation in the regulations rather than in the Bill. This is an unfortunate development. A copy of the regulations is placed in the Library and the Members who are involved in the enactment of the legislation have no input into the regulations. We do not know what will be in the regulations as we are not consulted. Professional bodies, the Garda Síochána and various State and semi-State organisations may or may not be consulted about the drafting of the regulations. At the end of the day the officials in the Department or the Minister may not have to consult any other organisations or individual about the regulations. Members on all sides have expressed concern about this development. As I said, this is the general trend in all legislation. I presume the current policy is to get legislation through the House and to introduce the real meat by way of regulation at a later stage.
Legislation emanating from the Department of Justice will have serious effects on the population at large at one stage or another. The vast bulk of the decisions in regard to the Judiciary will be dealt with in regulations rather than legislation. In the normal course of events legislation emanating from the Department of Justice will not be circulated to members of the Garda Síochána. Deputy McCartan knows the process much better than I but I assume, for example, a member of the Garda Síochána will have to go to a library — maybe not the Oireachtas Library — or some central area where copies of regulations can be secured. Legislation has to be dealt with by the Garda Síochána who will not be, in many cases, familiar with these regulations. As Deputy Barrett said, in many cases very relevant and important sections of legislation are never put into operation because the regulations are not made or are delayed for perhaps years. The main thrust of the amendments should be accepted. I support Deputy Barrett's suggestion that some method should be found whereby this matter can be tightened up or controlled other than by simply saying the regulations will lay down virtually everything that is in the legislation. I support the amendment.
I have listened with interest to the three contributions of my colleagues. I think the Deputies are confusing the giving of effect to the Act and the coming into effect of the Act. The Act will come into effect automatically following the deposit of the instruments of ratification of both of the international conventions in question. The arrangements for the depositing of our instruments of ratification will be made by the Minister for Foreign Affairs after due consultation with the Government as quickly as possible after the Bill is enacted.
I have listened with interest to what the Deputies have said, particularly to what Deputy McCartan has said. There is no point in us as legislators pumping out misinformation to the people of this country. Deputy McCartan talked about the Child Care Bill which was passed after one full year in Committee. It came into this House and was passed with several amendments, and it is now getting its Second Reading in Seanad Éireann. As a commitment to the enactment of that Bill the Government allocated in the budget £1 million towards its implementation in 1991. Surely that can be seen as a commitment by legislators of this House to create law and by the Government to accepting the will of the House and providing resources for it. There is no question of postponing the implementation of any part of the Child Care Bill. We are totally committed to child care legislation, to modern legislation, and we will continue to be so.
I have had the privilege for the past eight years of being a Member of this House. I spent four years on that side of the House and I am fortunate enough to be four years on this side. I have seen Ministers, Ministers of State and Governments at work during that time and I have the utmost regard for all office holders. They come in here and bring forward the best legislation possible, put it into law and provide the necessary resources. There is a particular type of structure within which Governments and legislators operate and it has not failed the country as yet. We must ensure that the facts are given to the people, that they know we are committed to providing proper legislation and that we work in that area consistently and in a positive way. That goes for all sides of the House and all Members of the House.
In regard to amendment No. 13, there are good and valid reasons for enabling the Minister to make regulations under the Act if he so wishes rather than making it a requirement to do so. The regulations concern forms that may be prescribed in relation to applications to the central authority under The Hague Convention for return of a child who is removed firstly, to the State under section 8 or, secondly, from the State under section 9, or in relation to applications under the Luxembourg Convention for recognition and enforcement of a custody decision in the State under section 24, or in another contracting state under section 32. A model form for applications under The Hague Convention and the Luxembourg Convention has been designed on a nonobligatory basis, that is, states are not strictly required to make use of this model form. The stated reasons are, firstly, that adaptations of the form should be a matter for agreement between the relevant central authorities and secondly, there may be inconsistencies between different states' forms because of language and other technical difficulties.
Against this background, it would be better to have as much flexibility as possible in relation to the making of forms of application under our legislation. For that reason it might be best not to make the regulations formally until we have experience of the operation of the conventions. That is not to say that we will not have pre-printed forms available when the conventions come into force in the State, on the contrary, it is proposed to have application forms printed, whether on the basis of regulations or not. The date or dates of the ratification of the conventions by Ireland will in effect determine the date or dates of the coming into force of the Act or different parts of it. This is very clear. Consequently, I regret I will not be able to accept amendment No. 13. A Leas-Cheann Comhairle, I will be guided by you if you want me to respond to amendment No. 14 at this stage.
Yes, we may discuss the amendment but as I indicated earlier, separate questions will be put if necessary.
I do not accept the need to put before the Houses of the Oireachtas for formal approval a matter of this kind. In questions only are forms which prescribe the details to be included in applications under The Hague or Luxembourg Conventions. Any such forms will be simple and straigtforward and to involve the Houses of the Oireachtas in examination of those forms would be wasteful of their time. I am satisfied that the best way to approach the matter is the standard approach in these matters as provided for in section 42.
In any event, Deputy McCartan's amendment is technically flawed in that insertion of the subsection he proposes together with the deletion of section 42, which he also proposes, would mean there would be no provision in the Bill for the laying of orders made by the Minister for Justice before the Houses of the Oireachtas.
Not if amendment No. 13 is accepted.
No regulations are required in order to give effect to the legislation because in this case we are dealing with international conventions. The process of the implementation of the legislation is different from that of ordinary domestic legislation. I wonder if various Ministers were coming in here day after day and week after week discussing and debating regulations how committed we would be to them and how satisfied would we be with that type of process of evolving the rules and regulations pertaining to law that we pass here? If that were the case we would receive many complaints. The people outside as well as Members of the House would say we would be better employed discussing and debating legislation in the broader sense rather than in a very technical perusal-type way. I want to make clear that there will be no delay in implementing the Act because of the absence of regulations since the Act does not require regulations to be made. Consequently, I regret that I cannot accept these amendments.
Before I pursue the matter, I would ask the Minister if he can give an indication as to when the Government might lodge their letters of ratification to the conventions? What does he envisage will be the time period? I am fully prepared to accept the assurances he has given that there will be no delay once the ratification of the conventions has taken place.
I can assure the Deputy that, given the co-operation of the Whips in both this House and in the Seanad, we will get this Bill through both Houses as quickly as possible. Immediately thereafter, the Minister for Foreign Affairs will prepare his memorandum for Government who will have it cleared and we will then lodge them as quickly as we can. The Deputy can be certain it will be done in 1991 and not in two or three years' time, as he suggested earlier.
I suggested that in respect of other legislation and I do not share the Minister's confidence in that regard, even though he said certain budgetary allocations have been made. However, to deal more directly with the legislation before us, I am not at all happy with the Minister's response in regard, firstly, to the technical difficulty he talked about. If my amendments Nos. 13 and 14 are accepted there will be no necessity for section 42, and that is why I oppose it. I do not see where this technical problem arises in terms of the construction referred to by the Minister. Obviously there would be some difficulty with amendment No. 14 on its own, but if it is taken in conjunction with amendment No. 13 the matter would be adequately covered.
The Minister talked about the effect of misinformation being disseminated with regard to what is happening. It is quite clear that, for Ireland to be joined in international law as a party to the conventions, it must lodge letters of ratification and sign the convention on the dotted line. I accept that but the purpose of the legislation before the House is to bring those specific provisions out of the arena of international law and introduce them to domestic law. Therefore, there is a very real difference and extension of the matter beyond simply lodging letters of ratification. There are many conventions in international law, of which Ireland is a party, which have not been introduced to the domestic corpus of law. They have effect in our law simply on the basis that we are contracting parties, nation between nation, but the purpose of this Bill — if the Minister looks at the explanatory memorandum — is to give force of law in the State to the two conventions. Therefore, there is a bit more to the legislation than mere ratification of an international convention. I do not know whether the Minister is worried about it.
Is the Minister suggesting that the making of regulations is reduced to nothing more than drafting and making available forms for the working of the legislation? If that is the assurance he is giving to the House, is it all he envisages being included in the regulations? If so, perhaps I should not be unduly worried. I put it to the Minister that, ultimately, there will be a lot more to be dealt with in the regulations when they come to be drafted. I want to remind him of the rather unusual order of things at present: an international convention is being introduced to domestic law by enabling legislation which has its own framework and limited provisions and I have no doubt that, when the draftsman in the Department tries to make all this work, there will be very substantial outstanding matters which will be covered in the regulations. There is nothing, in short, in the section which says that the regulations will be able to deal with the drafting of forms or the setting of purely administrative matters for the implementation of the legislation.
The Minister will be aware that, in the Child Care Bill and other legislation where regulations were referred to, they are often accompanied by subsections which say, in general terms, what the regulations shall cover. There is no indication of that here; there is a writ at large to the Minister to make regulations, as the section says, "for the purpose of giving effect to the Act". On reasonable reflection, having looked at the complexities of the provisions of the convention, and in view of the fact that they involve language, ideas and structures which are not of our domestic nature, it is clear that there will be far more substantial matters to be dealt with in the regulations than the Minister is suggesting here, in the area of form producing only. If the Minister says that there is not — I have no doubt that, as a result of consultations with his officials, there are some broad indications even at this stage as to what the regulations should cover, that the regulations will not have a wider brief and effect — then perhaps I should not be as upset as I might be in pressing this point. If that indication is there, I may have something else to say about the amendments.
There are two points involved: the first is the making of regulations and the timespan in which those regulations should be made; the second point is that, having made the regulations, whether they should ultimately come before both Houses of the Oireachtas for ratification. Should they just be laid in the Library?
I recognise that section 42 also refers to every order or regulation so there is a technical difficulty in relation to opposing the section. In certain Bills I sought to have a standard wording amended so that regulations will be brought before this House for debate before they are formally adopted, and it is important in legislation to have the opportunity to discuss regulations.
I recall, in relation to the Intoxicating Liquor Act, that we succeeded in persuading the then Minister that the regulations in relation to the licensing of restaurants should be brought before both Houses of the Oireachtas for confirmation. However, we suddenly discovered that while we could look at the regulations and debate them, we could not amend them, which makes a joke of the whole thing. The effect of the long debate we had on licensing restaurants, the need for this and the aviailability, from a tourist point of view, of having alcohol available in restaurants with a meal — we reached a general compromise and agreement as to how, where and when a restaurant could have a licence — was that the Minister for Tourism introduced a whole set of regulations which would make it practically impossible for anyone to get a restaurant licence. This was totally contrary to the debate we had here in the first place with the Minister for Justice.
I questioned the Taoiseach earlier today about the need for Dáil reform and I highlighted what is going on here. We are living in an outdated, outmoded system which was cobbled together by the British in the last century; we are trying to apply the same rules and regulations today as we did 100 years ago. If we cannot move forward, in God's name, we can encourage the people we represent to move forward to meet the challenges of 1992? Every time a Member of the House argues that sort of point we are now discussing we get the standard reply and the reasons for not doing it.
Parliamentary democracy is not the most convenient system, it is a bit cumbersome and awkward, particularly in Government. Ministers feel that they have better things to do than traipsing in here to account for their stewardship in front of the other Members of the House. However, in the interests of parliamentary democracy, it is vitally important that there are times when a Minister — and a Government — should be asked to explain the long delay in bringing in sections of a Bill or regulations in regard to an Act which were agreed and debated perhaps two or three years previously. I do not consider that the time of this House would be wasted in doing that and I was surprised to hear the Minister saying that time would be wasted——
I did not say "wasted".
I am not quoting the Minister exactly, but he said that time would be wasted and that we have better things to do. The Minister can quote what he said later but he certainly implied that. We do not want to waste time and if it is a standard procedure, all the Minister has to do is to announce, after the Order of Business, that, through agreement between the Whips, a motion in relation to the extension of the period for making regulations under a certain Act is hereby agreed. There need not be a debate but there must always be a watchdog.
I should like to debate with the Minister for Justice or the Minister of State why parts of the Intoxicating Liquor Act are not in place. That Bill was passed over two years ago and I recall, a Leas-Cheann Comhairle, that you were engrossed in the debate over licensing and all sorts of aspects of the Bill. You recall what I am talking about, and some sections of that Act are not yet in place.
The Minister is a great man for rules and regulations and rightly so because that is the job he is asked to do in the House. I am sure, having the same type of mind as I on these issues, he would like to know exactly why that has happened. That is why we are, through this amendment, seeking the safeguards for this House that Ministers should be answerable. After a given period of time they should come here and say why such and such a regulation or Part of an Act has not been brought into being. In this legislation that may not be as important as it would be in other legislation but it would do no harm. It will not destroy the legislation. It is not, as is said, a "mortaler". It is not imposing further expenditure on the State or anything of that nature; it is asking, perhaps, that the Minister be inconvenienced a little. I see nothing wrong with that.
If the Minister has a satisfactory answer to the points being made, and if Deputy McCartan is not pressing his amendment, so be it. If Deputy McCartan wishes to press this amendment he will have my support on the basis of defending a principle. Other Departments, and other Ministers, should be aware that it is the wish of this House that in certain circumstances they should come back here to explain why certain things have not been done that were implied in the legislation and could have been debated two or three years ago. The choice is the Minister's.
I may have made Deputy Barrett nervous—
Slightly nervous.
——by what I said. He is making me slightly nervous too with his invitation to Deputy McCartan to press his amendment. I assure Deputy McCartan, and the House, that the regulations will merely deal with forms to be used in connection with application under the conventions. Sections 9, 10, 24 and 32 indicate that the forms to be used may be as prescribed. "Prescribed" is defined in section 2. Deputy Barrett is very accurate in his reference to section 42 which provides that "every order or regulation made by the Minister under this Act..." The difficulty arose in Deputy McCartan's amendment in that it referred to regulations but did not include "order". consequently, it was flawed on that basis.
Section 1 (3) is a standard commencement provision. The date or dates of the ratification of the conventions for Ireland will in effect determine the date or dates of the coming into force of the Bill or different parts of the Bill. The Hague Convention will come into force for Ireland on the first day of the third calendar month after the deposit of our instrument of ratification under Article 43.1. The Luxembourg Convention will come into force on the first day of the month following the expiration of a period of three months after the date of the deposit of our instrument of ratification, Article 22.2. Therefore, the coming into effect of this Bill is laid down in regulations and automatically falls on a particular date from once we lodge the necessary instrument of ratification. Consequently, there should be no doubt about that. We do not want to delay it. We appreciate the co-operation of the House and the positive sincerity expressed by Members participating in the debate.
I am confused and would like clarification. I take the point with regard to the omission in my amendment No. 14 with reference to orders, and I will be able to correct that on Report Stage. I am not sure what the Minister was referring to in respect of the various dates as to when the conventions will come into operation. There is a difference. What he was quoting referred to when the conventions will become a matter for international law once signed and ratified by the Irish Government and how many months after the lodgement of letters of ratification it becomes a matter of international law and obligation for us. In other words, how we address nationals of other countries who seek redress under the conventions and our obligations abroad.
How does the Minister deal with section 1 (3)? It states,
"This Act shall come into operation on such day or days as the Minister shall fix by order or orders either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions."
In other words, for domestic purposes the Bill will not come into operation here until the Minister for Justice makes an order under it. Two separate events, so to speak, are occurring. As a matter of international law and obligation for Ireland the operative date will be fixed from the date of the lodgment of the letters of ratification, but from the matter of the implementation and workability of this legislation at home it does not become law until the Minister makes orders. That is where I am a little confused. This needs clarification before we pass on from it.
I should say, in deference to what Deputy Barrett said, and I did not take the opportunity of responding to it, that his suggestion of an addendum to amendment No. 13 is very good and fair. As a matter of principle, if there is substance in these regulations then a time limit should be fixed on it and, if necessary, let the Minister seek the permission of the Dáil as we are the prime motivators of the legislation — the legislation was initiated here — rather than going to the two Houses of the Oireachtas. I suggest we agree that it should come back before at least the Dáil for further extension. That is a very workable compromise in the circumstances if there is substance in what the regulations imply.
The provision in section 1 (3) is a standard provision, in Acts or in proposals for Bills.
It is not universal.
It is a common practice in all Bills brought before this House. As I pointed out, the regulations will merely deal with the forms to be used in connection with applications under the conventions. We must discharge our obligation both domestically and internationally under the conventions. Consequently, the Minister for Justice will have to bring in an order to coincide with the dates under both conventions. They will get international ratification by us once we lodge the necessary instruments. The dates will coincide with our lodgments and fall into line with obligations under both conventions so there will be no delay. We are absolutely committed. We want to discharge our obligations both nationally and internationally, and I hope the House is satisfied with that.
I hope I am not abandoning my colleague in Opposition, Deputy Barrett, if I say that in the light of the two assurances that there will be no delay on the part of Government in ratifying the conventions, that there will be synchronised ratification and implementation of the legislation at home, I do not propose to press my amendments.
Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Section 41 agreed to.
SECTION 42.
Question proposed: "That section 42 stand part of the Bill."
I had tabled a general point of opposition to this section to be taken in the context of amendments Nos. 13 and 14. Clearly, I cannot now ask the House to oppose or delete section 42 and put nothing in its place. My combined formula was the proposal of laying regulations before the House and that they become the force of law simply by default, so to speak. If no motion was moved to annul them they would become law after 21 days.
In principle, The Workers' Party are opposed to that formula as a way of dealing with regulations. However, I had intended earlier to ask the House to accept the proposition of the positive regulation under my amendment No. 14 which has not been moved. In those circumstances I am not pressing my opposition to section 42 as it now stands other than to say that as a matter of principle it is the type of provision we would, by and large, oppose because we believe it is undemocratic and not what this parliamentary Assembly should expect from our legislators.
Question put and agreed to.
NEW SECTION.
I move amendment No. 15:
In page 18, before section 43, to insert the following new section:
"43. — (1) Persons making application to the Central Authority and/or the courts under the provisions of this Act shall be entitled to apply for and be granted, where appropriate, legal advice and assistance in the preparation and prosecution of such applications.
(2) The Minister shall make regulations, under section 41 of this Act, to provide for the extension of the legal aid system to cover such applications.".
I propose to insert a new section 43 in which case the present section 43 will become section 44. I am proposing to include in the legislation an assertion of the right to legal aid by anyone who seeks recourse under the Bill either in approaching the central authority or in approaching the courts. I propose that:
Persons making application to the Central Authority and/or the courts under the provisions of this Act shall be entitled to apply for and be granted, where appropriate, legal advice and assistance in the preparation and prosecution of such applications.
(2) The Minister shall make regulations, under section 41 of this Act, to provide for the extension of the legal aid system to cover such applications.".
It is important that we underscore the fact that legal aid be available to all who seek recourse to the law under the provisions of the convention and the Act. Situations can often occur where children and their safety and security are abused in circumstances of extraordinary trauma and people cannot be expected to stop and think about the potential cost in money terms if they are to pursue their children from one country to another to try to restore them to the safety of a family. It is right that the Convention has regard to the right of all applicants to legal aid under the terms of the Convention. That is only fair when one considers that we will have people moving from one jurisdiction to another where they will not necessarily understand the prosecution and processing of an application under this Bill and would need to fall back on the use of lawyers. It is important that there is not any inhibition on them in relation to legal aid in these circumstances. The Convention which we are proposing to bring into our domestic law with the passing of this Bill provides for legal aid to be made available. Article 42 of the Hague Convention reads:
Any State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 39 or 40, make one or both of the reservations provided for in Article 24 and Article 26, third paragraph. No other reservation shall be permitted.
I am quoting the Article of the Convention that allows Governments to make reservations under the terms of the Convention. The provisions with regard to legal aid are contained in Article 26 where it says:
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except in so far as those costs may be covered by its system of legal aid and advice.
There is a declaration there that the contracting states should provide legal aid and advice to the extent to which it exists under our current scheme. Taken in conjunction with Article 42, there is authority for the State to enter reservations. It is because of that facility and the provisions of Article 42 that the Irish Government can contract their way out of their obligations in respect of this. We had a poor showing in previous international litigation particularly in our response to the Airey case where Ireland entered a very meagre response to the European Convention by saying that we were required to provide legal aid and assistance from what currently existed. At that time that was very little, if anything at all. Since the response to the Airey case and the entering of the reservation to the European Convention our performance generally with regard to the provision of legal aid has been less than satisfactory. I have a real worry that while the Convention is there, there may not be a wholehearted willingness on the part of the Government to give the fullest aid, assistance and advice to people from other countries who come here and seek to avail of the terms of the provision and make applications to either the central authority or to the courts under this Bill. It is important that we put into the legislation a provision saying that there shall be legal aid and advice available and that the Minister shall make regulations to extend the legal aid scheme to accommodate these applications. Under the legal aid scheme as it currently exists these applications would not qualify. They are not covered under any of the general areas of law currently provided for under the general legal aid scheme which does not have a statutory base. When the legal aid scheme was established these types of applications were not envisaged. We are now bringing into domestic law, under international contact, the provisions of the Hague and Luxembourg Conventions and we need clarity and to know that our legal aid system will be extended to cover these applications. That is the importance of subsection (2).
The central point in my amendment to insert this new section is that the House will declare clearly and unambiguously that legal aid will be available to all persons under the Bill. My reason for putting the amendment is our rather poor history in meeting legal aid requirements generally and because a provision exists in the Convention to allow Ireland to reserve its duties under Article 26 by availing of the reservation provisions under Article 42. It is important that we cut off the Government from that avenue. I hope the Minister of State will accept the amendment without quibble because it reflects what the Minister seemed to indicate to this House on Second Stage. If the Minister is not prepared to accept the amendment I hope he will say that this point is covered in the Convention and that there is not a need for it. In anticipation of that response I suggest that the amendment should be added in because it will not take away from the legislation or from what the Minister intends to do.
I hope the amendment will be acceptable and that the House will put down a marker in the from of this amendment that legal aid will be available and that there will be no derogation from that position.
Article 26 of The Hague Convention which is being made part of the law of the State prevents the imposition of charges in relation to applications submitted under the convention. It goes on to provide that there may be no requirement of payment from the applicant towards the costs and expenses of the proceedings for the return of a child or, where applicable, those arising from the participation of legal counsel or advisers. Although there is the possibility of a reservation so as to allow states to apply strictly the conditions of their legal aid schemes, it is not intended to make that reservation.
Article 5 of the Luxembourg Convention also provides that each contracting state undertakes not to claim any payment from the applicant in respect of measures taken by the central authority on behalf of the applicant under the convention including the costs of proceedings and, where applicable, the costs incurred by the assistance of a lawyer.
There is no possibility of a reservation. In other words, under the provisions of both conventions the applicant will be entitled automatically to legal aid and advice irrespective of means. The civil legal aid scheme already contains the necessary provision in paragraph 3.2.6 of the scheme.
The scheme of civil legal aid and advice was laid by the then Minister for Justice, Deputy Gerry Collins, before each House of the Oireachtas in December 1979. Paragraph 3.2.6 of the scheme states:
3.2.6. Notwithstanding the other provisions of this Scheme the Board may grant a certificate where it is satisfied that the application is concerned with a matter in respect of which the State has a duty to provide civil legal aid under an international instrument which specifically states that the State is obliged to provide such aid and the requirements, if any, to be satisfied by such an applicant in connection with the grant of a certificate will be determined on the basis of the requirements of the international instrument.
That paragraph was inserted in the scheme with the obligations arising from both conventions particularly in mind.
The reference to the making of regulations to extend the civil legal aid scheme is, therefore, not necessary nor is it appropriate. The scheme is still an administrative scheme, though we should be considering draft legislation to put it on a statutory basis later in this year. The absence of legislation is not an impediment to the operation of the scheme. It does not affect the position so far as obligations under these conventions are concerned.
I hope this clarifies the position for the House and that Deputy McCartan is happy with what I have said. I regret I will not be able to accept this amendment. Perhaps he will withdraw it.
In advance of making any final decision on the amendment, could the Minister clarify the State's attitude with regard to Article 42 and any derogations? I was momentarily distracted when the Minister was dealing with that point. I am particularly concerned about Article 42 of The Hague Convention and the possibilities afforded for Government to enter reservations.
There is no intention by the Government to make a reservation under Article 42, even though the convention does allow for a reservation to be placed. I hope this clarifies the matter.
I welcome that. I have difficulty getting the full meaning of Article 42. This is one of the difficulties we have in taking international conventions into our own legislation without the work of our own draftsmen. My reading of it would suggest that when the State is making a declaration in terms of Article 39 or Article 40 it may make one or both of the reservations provided for in Article 24 and Article 26. There is no intention on the part of the Government in ratifying the Convention to enter a reservation but I am not sure if that cuts off the possibility of such a reservation being entered in the future, thereby changing our commitment to the concept of legal aid as provided under Article 26.3.
Article 42 is reasonably clear. It states that any State may, not later than the time of ratification, acceptance, approval or accession or at the time of making a declaration in terms of Article 39 or 40, make one or both of the reservations provided for in Article 24 and Article 26.3. No other reservation shall be permitted. That means that any reservation on behalf of Ireland may be lodged when we lodge our instruments of ratification. If we do not put down a reservation at that time, which we have no intention of doing, no subsequent Government can enter any reservation on behalf of Ireland.
I thank the Minister for clarifying this matter which was confusing me. In view of the firm assurances given of the absence of any intention on the part of the Government in ratifying the Convention to enter a derogation, I am happy to let matters stand.
Amendment, by leave, withdrawn.
Section 43 agreed.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the Schedule to the Bill."
I raise a matter that has been exercising my mind and that of Deputy Bell. What would be the position if we tried to propose an amendment to the Schedule? It is an issue which has been troubling me for some time. If I sought to propose an amendment to the Schedule——
I am advised that such an amendment is not allowed.
It is an odd state of affairs that we are asked to accept, without opportunity to challenge, entire Schedules of Bills simply because they were contracted elsewhere. It is a point worth making in terms of the efficacy of this House as a legislative assembly.
There must be some uniformity in any international convention coming into force in any member state which is ratifying the convention. The Schedule would have to be standard.
I am glad the Minister has made the point and I intend to bring this extract with me to the Special Committee on the Recognition of Foreign Adoptions. We have made a break-through here on that issue.
Question put and agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Tuesday, 5 March 1991.
Sitting suspended at 5.20 p.m. and resumed at 5.25 p.m.