Dáil Éireann díospóireacht -
Tuesday, 18 May 1993

Vol. 430 No. 8

Jurisdiction of Courts and Enforcement of Judgments Bill, 1993 [Seanad]: Second and Subsequent Stages.

Minister for Equality and Law Reform (Mr. Taylor)

I move: "That the Bill be now read a Second Time."

The measure we are now considering, the Jurisdiction of Courts and Enforcement of Judgments Bill, 1993, has one overriding objective, namely, to ensure a structured and coherent approach to the international recognition and enforcement of judgments in civil and commercial law matters. Since 1988, we have had the benefits of this approach in relation to all the EC member states, with the exception of Spain and Portugal. This Bill extends these benefits to a wider territorial area. It does so by enabling Ireland to ratify the convention providing for the accession of Spain and Portugal to the 1968 Brussels Convention, and also to ratify a parallel convention, known as the Lugano Convention, which was negotiated between the member states of the European Communities and those of the European Free Trade Association.

The impetus behind the original Brussels Convention, which was drawn up in 1968, was to give meaningful effect to Article 220 of the Treaty of Rome. That article called on member states to secure "the simplication of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals." At the time, it was perceived that the economic wellbeing of the Community required a legal framework which would ensure that commercial relationships, in particular, would not be unduly hampered by the absence of a uniform system of law throughout the participating member states.

The original convention did succeed in simplifying legal formalities of enforcement in the areas of civil and commercial law. Of course, as the Community has developed closer links with other countries, such as those which form part of the European Free Trade Association, the EFTA group, the need for such simplification has grown and not lessened.

It will be recalled that before Ireland's accession to the EC no Irish judgment was enforceable in another country by any simplified procedure — apart from a number of minor exceptions in the United Kingdom — nor was it possible for any foreign judgment to be enforced here. Before our accession to the Community an Irish person who wished to bring a claim in France, Germany, Italy or some other EC country was obliged to retain lawyers in that country and bring separate legal proceedings there and go through the panoply of the legal procedures in that country and obtain a separate judgement in each country. The fact that the Irish citizen might have had a decree or a judgment of an Irish court was of little or no value save in the couple of minor exceptions in the United Kingdom. Likewise, a debtor in Ireland who owed money to a resident of another country had to be sued separately here and a judgement obtained in any other country was not enforceable here but it could be used as a basis for bringing a claim but of itself it could not be enforced in this country.

In Ireland, after joining the EC in 1973, we took on board the obligation to accede to the Brussels Convention, as did Denmark, the United Kingdom and, subsequently, Greece. The convention was modified both in 1978 and in 1982 to accommodate these accessions. In our case, the force of law was given to the amended convention by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988. A further amendment is now necessary because of the more recent accession of Spain and Portugal.

In the context of that accession, an opportunity was provided to take account of some important issues which had emerged during the course of the earlier negotiations on the Lugano Convention. These issues arose as a result of experience of the working of the Brussels Convention and of decisions of the European Court of Justice on the interpretation of its provisions. Part III of the Bill deals specifically with the Lugano Convention.

Part II consists largely of a series of technical adjustments to the 1988 Act. They reflect the changes brought about by the 1989 convention on the accession of Spain and Portugal known as the Convention of San Sebastian. But the more significant changes are those that have been incorporated from the Lugano Convention. For example, in the area of employment contracts, the position of an employee who is in dispute with his or her employer will be appreciably improved as a result of those changes. Under the Brussels Convention, the employee had to sue the employer in the courts of the state where the employer is domiciled or where the contract is to be performed. Such an individual will now have a right to sue the employer in the place where he or she habitually works or, if this is not appropriate, in the place where the business which engaged the employee was or is now situated. The right of an employee to sue in a member state, to which the business which engaged him or her has moved, is a benefit particularly to the amended Brussels Convention.

This concern to protect employees is also seen in an amendment to Article 17 of the Brussels Convention. That article allowed parties to a contract to agree on the court of the contracting state that would have jurisdiction in the event of a dispute. The amendment provides that in the case of an individual contract of employment the agreement will have legal force only if it is entered into after the dispute has arisen. The employee also has the option under the convention of using a pre-dispute agreement to sue in the courts of any other state.

Another change of note is one which will impact on individuals who wish to rent short-term holiday accommodation abroad. An Irish resident might let a holiday home he or she owned in, say, France, to another Irish resident for part of the year. If the tenant defaulted in payment of the rent or damaged the premises, the proceedings up to now would have to be taken in the courts of the state where the property was situated, that is, in the local French courts. Now the action may be brought in the territory of the member state in which the defendant is domiciled, provided the tenant and landlord are natural persons and domiciled in the same member state. The corresponding provision in the Lugano Convention for the EFTA countries allows the plaintiff in such cases to proceed in the courts of the state where the defendant is domiciled, provided only that the tenant is an individual and that neither party is domiciled in the country in which the property is situated. So, in the example I have taken, the aggrieved Irish owner will be able to get redress in the appropriate circuit or district court just as if the holiday home were located in Ireland.

Part III of the Bill gives the force of law to the Lugano Convention. This convention is identical to the Brussels Convention in all essential respects and its implementation does not require any substantial adjustments to our domestic law. As already indicated, the main advantage of ratification is that it ensures that the judgments of a greater range of countries will, within the relevant categories have more or less free circulation throughout a wider territorial area.

It may be worth recalling briefly the essential principles which govern both conventions. Of primary importance is the fact that we now have the framework for a procedure of virtually automatic enforcement of judgments given in 18 individual states. Provided the court giving the judgement sought to be enforced has jurisdiction to entertain the case under the rules of the conventions, the judgement can be enforced simply and quickly in any of the other states which are a party to their terms.

There is a very limited number of grounds upon which recognition and enforcement of a judgement can be refused. The main ones would be where it would be contrary to public policy to do so or where the defendant was not made aware of the proceedings against him or her. In Ireland, the usual way of securing enforcement of a judgement under the Brussels Convention is by way of application to the Master of the High Court. From the information available to me, it appears that this aspect of the procedure has worked well to date. While there has not been an enormous number of such applications, there has been a relatively steady stream of applications to the Master from time to time.

A number of matters are excluded from the scope of the conventions. These include matters of an explicitly criminal nature, revenue, customs and administrative matters, status issues, social security and arbitration. Nevertheless, their scope is extremely wide, covering the whole spectrum of international business transactions and litigation between individuals.

Special provision is made for individual litigants in areas such as insurance and consumer contracts, matters relating to maintenance and personal injury actions. In these areas, the plaintiff is the acknowledged weaker party and so he or she may commence proceedings in the country in which he or she resides. That is an exception to the general principle that proceedings must be instituted in the country where the defendant is resident. Other exceptions of this kind occur in matters relating to a contract — where a person may be sued in the courts of the place of performance of the obligation in question — and in tort cases, where a person may be used in the courts of the place in which the tortious event occurred.

The protection afforded to the weaker party is particularly important in maintenance matters where the expense of obtaining a judgement in a foreign country could place a very difficult obstacle in the path of most maintenance creditors. I fully accept that extending the enforcement "net" is only a partial solution to the problems which such creditors face. Indeed, for that reason I am pressing ahead with a Bill which will allow Ireland to accede to the EC Maintenance Convention, thus making it unnecessary for Irish maintenance creditors to initiate enforcement proceedings themselves in the relevant member states. That Bill will also facilitate our accession to the 1956 UN Convention on the Recovery Abroad of Maintenance.

The purpose of the Bill which I will introduce is to enable Ireland to accede to two conventions dealing with the recovery of maintenance payments from abroad. The first is the convention between the member states of the EC on the simplification of procedures for the recovery of maintenance payments, signed in Rome on 6 November 1990, known as the EC Maintenance Convention. This convention will provide for a much more readily available, simplified procedure in the area of maintenance applications. The second convention is the United Nations Convention on the recovery abroad of maintenance, signed in New York on 20 June 1956, known as the UN Maintenance Convention. Those conventions will be enforced under the central authority procedure whereby a central authority court official or Government Department will be appointed in each relevant country. The enactment into law of such an authority will represent a further major improvement in the recovery of maintenance procedures and will apply to countries outside EC and EFTA countries.

The Brussels and Lugano Conventions also seek to introduce an element of legal certainty into business and commercial relationships. More than 70 per cent of our trade is currently with other EC member states. A further 5 per cent is with the EFTA countries. These markets are very important to our future prosperity and, with regard to the EFTA countries in particular, there is obviously scope for additional market opportunities. A speedy method for enforcing legal remedies for breach of contract, supply of goods and other commercial relationships, such as that offered by both conventions, will be of practical benefit in developing our trade relationships with these countries and I hope, will be one factor which will encourage an increasing interplay of trade and commercial transactions with the EFTA countries.

It is perhaps unfortunate that the contents of this Bill will not immediately strike many people as particularly relevant to them. However, despite its apparent complexity, the fundamental principle of the Bill is essentially very simple. People, in their daily lives, often confront problems which require legal remedies. Sometimes these remedies may need to be availed of outside this jurisdiction. In such cases, the approach reflected in the amended Brussels Convention and in the Lugano Convention will greatly ease the task of an individual plaintiff in obtaining justice.

The maintenance issue will strike the most familiar chord with people. The plight of individuals who are unable to recover maintenance payments properly due to them is all too familiar to most of us. A partial solution is extending the enforcement net and in reducing the number of countries in which enforcement may be difficult or impossible. As a result of this Bill a further eight countries will be added to the "ease of enforceability" net and it will be more difficult for recalcitrant spouses to escape their personal and social responsibilities to other dependent members of their families.

If business and commercial arrangements are to function to maximum efficiency, people, firms, manufacturers of goods and contractors must have an assurance that legal remedies will not be bungled by national frontiers. It is not extreme to say this Bill will make a valuable contribution to fostering a climate which will help to increase our export growth, especially in non-EC countries.

The Brussels Convention has operated well to date without giving rise to any specific difficulties. This is important because the familiarity which the courts and practitioners will have gained in operating its provisions, and the limited extent to which it has operated to date, will smooth the implementation of this measure for the remaining EC countries and the EFTA countries now being brought within the ambit of this legislation.

I commend the Bill to the House and ask that it be given a Second Reading.

Mr. Shatter

I welcome the fact that this legislation is now before the House. Everyone recognises it in the context of commercial relations in the European Community and other nations with whom we trade, such as the EFTA countries. It is important to have the maximum co-operation between the judicial systems and the courts within those countries and that court judgments handed down in one State are enforceable in another State, to which they are relevant. In the past this has been a cause of substantial difficulty; frequently, because of the distance between the countries, the different legal systems and the costs involved, people in the business community and outside have not sought to enforce their legal rights. This will provide for greater respect for our courts system. I agree with various remarks by the Minister as to the importance of this measure. The only gripe I have is the length of time it has taken to introduce this Bill before the House. The Accession Convention of 1989 resulted in the accession of Spain and Portugal but it has taken until 1993 to implement arrangements which ensured the mutual enforceability of court orders made in this State between ourselves, Spain and Portugal.

Mr. Taylor

That is the reason I introduced the Bill so quickly.

Mr. Shatter

I have no doubt this Bill like other measures, which presumably we will see in the next few weeks, has been swimming a relatively slow course, in the Department of Justice and has not been perceived, as the Minister said, as a relevant measure, which is unfortunate. There is little point in extending the membership of the European Community if it takes a small State — such as Ireland which is dependent on exports — this length of time to bring this measure into the Dáil. I welcome the having of law reform from the Department of Justice to a separate Department if it will result in a speedier legislative approach to these measures. I would be very interested to know at what stage this Bill was when the Minister assumed office. Were the heads in place, had it been fully drafted or was it on a departmental shelf gathering dust because the previous Minister for Justice did not regard it as urgent? Being aware of the length of time it takes to produce measures I would be surprised to learn that most of this Bill had not been drafted prior to the creation of the Minister's Department. It was probably sitting around with a few i's to be dotted and a few t's to be crossed. If the Minister tells us he did not even have the heads of a Bill when he assumed office and that he managed to produce this measure within those few short weeks then I will pay due credit to him. Somehow I doubt that is the position.

One wishes that the constipated legislative processes we operate would free themselves up. The true test of whether things are up and running or still truly hidden in corners, and not being addressed, will be in the context of the legislation the Minister brings before the House in the second part of this year and early next when, presumably, some of the newer initiatives contained in the Programme for a Partnership Government may see the light of day. I have no doubt we will pay tribute to the Minister when he produces a Bill on joint matrimonial property. That Bill has only been in preparation in the Department of Justice since 1983 and I suppose we should not cheer if we see it in 1993 but if the establishment of this ministry results in the speedier production of this and other Bills it will be welcomed.

The Minister is correct in saying that the part of the Bill with which the general public will identify and perhaps see as most relevant — though the other aspects of the Bill are of equal relevance and importance — relates to the mutual enforcement of maintenance orders. In this country many husbands have deserted their wives, failed to comply with maintenance orders and have gone to live in the south of Spain. If a message goes out from this House to the Marbella set who have left their wives in Ireland unsupported, and who feel that by staying in Marbella they can escape the maintenance orders by our courts. I welcome the fact that this Bill should, at least in theory, allow maintenance orders to be pursued. Maximum international co-operation is essential for the enforcement of maintenance orders at a time of huge international travel, high unemployment in Ireland and when men may see it as expedient to leave this country to avoid making payments for the support of their wives and children. Legislation we put in place which allows for the possible implementation of our orders in other states and for the implementation of other states' orders in this State is welcome. Nevertheless, we should not over-exaggerate the impact this type of legislation has in that area. I would be very interested to hear the Minister's comments on this.

We have had reciprocal arrangements with the United Kingdom since 1974 and, more recently, with other European Community states. The problem is that if a recalcitrant spouse who is intent on not paying maintenance leaves this jurisdiction and goes to one of the countries with which we have reciprocal arrangements and the wife does not know his address or location, all these legal rights are largely theoretical and do not have any real relevance or impact.

Mr. Taylor

That also applies if a spouse disappears in Ireland.

Mr. Shatter

That is true. There is a move afoot in some EC member states for the enforcement of maintenance orders by the relevant social welfare authorities. We now have legislation which allows the Department of Social Welfare to pursue a husband who is not making maintenance payments and to become a primary enforcer.

One or two other countries have taken the matter further. For example, in Great Britain the relevant Department responsible for social welfare co-operates with the tax authorities to trace a spouse who is reneging on support payments to his family if his name, and particularly his social welfare number, is known and he is working in Great Britain. Maintenance payments will only be enforceable on an EC basis when each country has a central authority that co-operates with the relevant Departments and the Revenue authorities in tracing the whereabouts in their country of foreign nationals reneging on their commitments.

In the case of foreign nationals obtaining employment in other EC or EFTA states they will register for tax and social insurance and deductions will be made from their earnings by their employers, so their whereabouts will be traceable through the relevant authorities. With all these matters being computerised, it should, at some time in the future, be possible to trace the whereabouts of individuals within the EC.

In this context we are not talking about invading people's privacy. The right to privacy in regard to the places where one is working must be balanced against the right of a wife and children to receive the support payments to which the courts have judged they are entitled. The use of information available in a foreign State to detect a person's whereabouts is not an invasion of privacy but a means of enforcing court orders properly made.

Will the Minister say what discussions there were at EC level in regard to taking legal rights for the enforcement of maintenance orders throughout the EC out of the broad region of legislation, which gives theoretical rights, into the practical area of implementation where the relevant authorities in each State co-operate in pooling information that can identify the whereabouts of spouses seeking to evade their obligations? What is the current position with regard to the reciprocal enforcement of maintenance orders? How many applications have been made, using our legislation in each of the years since it has come into force, to the United Kingdom and the other EC states, excluding those with which we are dealing today, seeking to enforce Irish maintenance orders within those states? I would be interested to know the effectiveness of these applications, how many resulted in Irish orders being enforced in a foreign State and moneys payable pursuant to them being remitted to Ireland. Will the Minister also tell us on how many occasions applications have been made, using the relevant legislation, to enforce in Ireland orders made in the other states with whom we have reciprocal arrangements against a spouse living in Ireland, being obliged to make payments?

There is always a danger in building great legal monoliths setting out all sorts of wonderful principles because when we look behind them, we discover they are not being utilised to any great extent. We must examine the reasons, in that regard. Although I welcome the main thrust of this legislation, for the overwhelming majority of people many of the provisions are theoretical and do not greatly improve their position. This is not the Minister's fault. However, we can now deal with these issues in a more sophisticated way.

Equally relevant in the context of maintenance and support payments are the problems that arise when people's financial circumstances change. Much of this legislation — and previous legislation — is designed in the context of maintenance in dealing with what is known as an enforceable maintenance order; an order is made in a foreign court that may be enforceable in Ireland or an Irish order is made which will be enforceable in a foreign court in one of the countries with whom we have reciprocal arrangements. In the context of Irish domestic maintenance orders, it would be quite usual, two or three years down the line, for the wife dependent on payments to seek an increase. She may be entitled to that by virtue of the ravages of inflation which, over a two to three year period, could seriously affect the value of the payment she is receiving — at times of high inflation one would need to look for an annual increase through the courts if one was not voluntarily made available. It may also be that a maintenance order is made at a relatively low level at a time when the husband is working in Ireland in a low paid job, but the husband may subsequently travel to, say, Germany or, in the context of this legislation, Spain, and get far better paid employment.

Will the Minister, therefore, clarify the relevance of this legislation, not simply to the enforcement of maintenance orders but to their variation, because this is as big a problem as enforcement where one spouse is in one jurisdiction and the other spouse in another. If a husband living in Spain and required to pay maintenance pursuant to a Spanish maintenance order to a wife who has now returned to live in Ireland seeks to have the maintenance varied because his financial circumstances have deteriorated, what is the position? Will he have to bring variation proceedings in Spain? Will the wife have to find the money to fly out to Spain to defend her position in the Spanish courts, or can the husband bring the application in Ireland? If the wife in Ireland wants her payments increased, does she have to bring a variation application in the Spanish courts or can she use an Irish mechanism? As someone recognised as having familiarity with the area of family law, I have found the conventions in this area particularly complex and obtuse in their application.

If we are serious about the idea of putting legislation in place to ensure that husbands meet their obligations to their wives and families, regardless of where they reside in the EC or EFTA countries, we must do more than make decisions about the enforcement of orders: the variation of orders is of considerable importance. It is important because in the absence of agreement about variation the only mechanism available to a wife seeking an increase in maintenance payments is to go back to court. If a husband's circumstances change or deteriorate and he seeks a decrease in maintenance payments — to which his wife does not agree — the only mechanism available to him is to go back to court. Will the Minister address that area in the context of this Bill or in future plans he may have or that may be put in place at EC level.

I will make a practical proposals which may help resolve some of those difficulties. When a couple separate by agreement usually an automatic annual cost of living increase is provided for in the financial arrangements between the couple in regard to maintenance. Of course, there is always a protective exception to that if such increase is beyond the capacity of the person making the payment. In my view the time has come for our domestic legislation to provide that on the anniversary each year of the making of a maintenance order an automatic cost of living increase should be applied unless the paying spouse notifies the recipient of the maintenance that he lacks the financial capacity to make such a payment which would leave each party open to go to court.

Mr. Taylor

Based on the cost of living index.

Mr. Shatter

Based on the Central Statistic's Office consumer price index. We should have done that a long time ago and in doing so we would substantially reduce the number of court applications for variation applications and at the same time we would probably reduce some of the pressures on the Government law centres who frequently act in regard to such applications in District Courts. That is a practical proposal which would be relevant to domestic legislation and would also be relevant in the context of the difficulty that arises when spouses live in different jurisdictions.

I do not wish to delay the House by engaging in repetition. The Minister set out well the intent of the legislation. It may have a simple intent but it is complex and technical and, of course, its contents are largely dictated by the words of the convention contained in it. There is little this House can do by way of amending this Bill in so far as it implements provisions consequent on the 1989 Accession Convention and the Lugano Convention.

Will the Minister refer to our relationship with the United States with whom we do extensive trading? He referred to the enforcement of maintenance orders in the United Nations Convention. We have large commercial relationships with the United States and I think I am correct in saying that, in the context of reciprocal enforcement of judgments, the same type of sophisticated legal arrangements that exist between countries in the EC do not exist between here and the United States.

Mr. Taylor

I think that is correct.

Mr. Shatter

This has always amazed me and it is an indication of our lack of initiative in such areas. What we are doing today is the result of something which happened at EC level and not a result of our own initiative. In the context of the important commercial relationships we have with the United States, Canada, Australia and New Zealand, all of which are common law countries and operate a judicial and legal system similar to ours, it is amazing that simplified arrangements for the mutual recognition of our court orders are not in place. Before Deputy McDowell tells me that recognised systems are in place under common law and the international rules of law, I am aware of that and I accept that we can make applications in foreign courts to implement our judgments. However, there is much to be said for putting in place a treaty which would at least embody other countries with whom we have substantial trading relationships, who have common law jurisdictions and with whom we could implement simplified procedures for the mutual recognition and enforcement of judgments which would be of great benefit in the commercial field. In regard to family law matters, it would be particularly beneficial for us to have special arrangements in place with the United States. Before having to be kicked, as it were, by other member states in the EC, perhaps the Minister might take the initiative and examine this matter during his term in office with a view to putting the necessary treaty arrangements and legislation in place between here and the countries I mentioned.

Mr. M. McDowell

I have a confession to make. When the Whips conferred on the time to be made available for the passage of this Bill and indicated that it was proposed to deal with it in one day, I objected on the basis that, in principle, the House should be given adequate time in which to consider matters of such complexity. However, I regret that objection now and as far as I am concerned I will not be tendering amendments on Committee or Report Stages. Even if the order of the House does not allow us to deal with all Stages today — although it might be unfair to other Members who may have taken another view — as far as the Progressive Democrats and I are concerned the remaining Stages can be taken without debate.

I welcome the introduction of this Bill. I agree with Deputy Shatter's view that it is regrettable that even relatively uncontroversial matters in relation to party politics in this House take so long to go through the period of gestation from our originally conceiving — if I may use that term — the international law obligation in question to ratification in Irish law.

A significant number of changes seem to have been made to the Brussels Convention and I would like the Minister to deal with those amendments and say how they will affect this Bill. For example, some features of Article 5 of the convention which is annexed to the Bill mystify me. Does the convention cover libel suits being brought in Ireland in relation to libels which occur here regardless of where the publication was originally printed or disseminated? Article 5.3 states that a person may be sued in another state in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred. If publication takes place in Ireland by disseminating a document here, can an Irish person sue Paris Match or Time magazine — assuming they are based in a convention country — and have a judgment made here against such publication? If that is the case, it is a great step forward and people will be wary about what they print about Irish people.

Mr. Taylor

I think that is the position.

Mr. M. McDowell

Directors of companies are sometimes directed under Irish companies legislation to make compensation to companies in circumstances where they have been in breach of their director's duty. It is not clear under Irish law whether that amounts to a tort or whether it is merely a compensatory jurisdiction under our company law which does not amount to the commission of a tort. If a foreign director of an Irish company loots the company, makes improvident contracts or enriches himself unfairly at the expense of the company's creditors and such a company ends up being wound up, is an Irish court order requiring him to reimburse money to the company capable, under sections 197 and 198 of the Companies Act, 1963, of enforcement abroad under Article 5, paragraphs 3 or 4? Would the Minister enlighten me in that regard?

Another frequent problem for practitioners in relation to contracts is that jurisdiction is vested in the courts in the place where the performance of the obligation in question must be carried out. There are different rules internationally in relation to the contractual obligation to pay. Under Irish and English law the obligation to pay is regarded as being one which lies to be discharged at the payee's address. In other words, payment must be made to the payee at his place of residence, whereas under continental systems the position is the opposite. The obligation to pay is applicable where the person making the payment lives. In other words, somebody must present themselves to that person and make a demand.

The Irish courts interpret the Brussels Convention as giving an Irish creditor under a contract the right to sue here because he is not being paid here, whereas courts in some continental countries take a different view and consider the obligation to pay to be only where the debtor resides and jurisdiction is conferred in those circumstances. I ask the Minister and his Department to raise this issue with the competent authorities under the Convention and the high contracting parties to it to achieve some clarity for practitioners. The Irish courts take the view that the obligation to pay is at the place of address of the creditor, whereas under continental systems the obligation to payment is at the debtor's address. There appears to be a different legal treatment of that aspect of Article 5, paragraph 1.

I now refer to trademark law. I welcome the fact that the Minister for Industry and Commerce has written to me indicating that the Government proposes to adopt and take over the Private Members' Bill on trade mark law which I tabled and will proceed with it as though it were its own draft Bill. The Government will preserve its structure and content as far as possible while pushing it through under its aegis.

In relation to road accident cases it used to be the case that one could sue where the accident took place or where the person responsible lived. If I were involved in a car accident in Spain and injured a Spanish person, under Article 5.3 I could be sued in Spain and would be liable for the damage I caused there. Alternatively it is open to a Spanish person to come to Ireland to avail of more generous compensation principles and sue me here in the High Court and obtain increased damages over that which he or she might obtain in Spain. Would the Minister indicate if it is the case that I could still be sued in Ireland by a Spaniard who comes here, even though Article 5.3 provides his or her local court with perfectly competent jurisdiction to deal with the case in Spain.

Mr. Taylor

It would not obligate him or her to do that.

Mr. M. McDowell

No, it would not obligate him or her to do that, but the unfortunate position arises that people can effectively choose between wholly different principles of compensation and wholly different compensation levels and that seems somewhat unfair.

Mr. Taylor

Under traditional Irish law an Irish person resident here in those circumstances would always have been suable here.

Mr. M. McDowell

Yes and this obviously would not change anything in that regard. I am making the point that a decision can be made by a person's lawyers which affects the level of compensation awards by forum shopping and that is ridiculous. If I knocked down a child in Spain while on holidays I do not see why that child should be awarded higher damages because I live in Ireland than if a Spaniard living in the apartment next door to mine were responsible.

Deputy Shatter stated that perhaps we should take a similar initiative to that of the United States regarding the enforceability of court orders between common law jurisdictions. I do not know if it would make sense for Ireland unilaterally to go to common law jurisdictions and seek to conclude a separate convention.

I do not know if Ireland and Britain would be in agreement on that. Perhaps some agreement would be reached in this regard between high contracting parties to this convention en bloc.

Mr. Taylor

An EC-based convention.

Mr. M. McDowell

On an EC basis. I would be slightly wary and I know Deputy Shatter would probably agree with me in this regard. I do not want some Louisiana jury to award $1 million against me on some pretext and find that as a result of some enlightened action by the Minister I would be liable to pay it and it would be enforced against me in Ireland. There must be some form of mutual understanding between the parties as to the principles of compensation that apply. Representative actions or actions for punitive or exemplary damages on the American scale are measures we could not live with on the basis of mutually enforceable decrees.

Would the Minister agree that even punitive damages which might arise, for example, in assault or libel cases or in some other form of action which are acknowledged in the court order and proceedings to be a claim for punitive damages, are enforceable under this convention? It seems that the principle was not to make punitive damages internationally enforceable. It seems to me that a query exists as to whether our Constitution would permit awards of punitive damages to be made by foreign courts against Irish citizens and not to allow the Irish citizen to resist that in any way. There is justice in making compensation and tort damages, which are designed to be compensatory, generally mutually enforceable when it comes to court orders. I cannot see the logic that people should be entitled to enforce punitive style damages such as are sometimes awarded by the Irish courts, especially when there is no uniformity between the courts of the high contracting parties as to the circumstances in which punitive damages are awarded. I will be interested to hear the Minister deal with that issue because I believe there might be a constitutional landmine in this regard.

I congratulate the Minister wholeheartedly for introducing this measure and I reiterate that the quicker this legislation is enacted, the better. As far as I am concerned, since I do not propose tabling amendments to the Bill, the remaining Stages of the Bill may be debated as a matter of course.

Mr. Gilmore

Like the two previous speakers I also welcome this Bill and indicate my party's support for it and I express the hope that the legislation before us will be the first of many legislative measures that will emanate from the Department of Equality and Law Reform. The Minister has already signalled other items of legislation which he expects will be before us in the not too distant future.

The Minister stated that this is essentially technical legislation giving effect to the extension to the Brussels Convention and the Lugano Convention. Deputy Michael McDowell is perhaps being ambitious in expecting that he might be tabling amendments to it.

Mr. M. McDowell

No, to the Bill section.

Mr. Gilmore

I had not got that far and I wonder whether there would be much merit in doing that given the effect that essentially we are merely rubber stamping conventions and amendments to conventions that have already been agreed. We will be dealing increasingly with legislation in this kind of manner where conventions and international agreements are negotiated in the first instance and are then presented here to the House — in some cases many years later — for their approval. I question whether that is the best way to deal with this kind of issue. For example, this is a Second Stage debate where we are expected to address the general principles of the Bill. It is difficult to address the general principles of an issue that has already been agreed and where it is simply a question of saying yea or nay to the legislation. As it happens, the legislation before us is not contentious but as the years progress we may have conventions or agreements presented to this House for ratification that may not be as uncontentious as this measure.

Would it not be more productive to debate the issues of substance contained in these conventions at a more advanced stage before commitments have been entered into and before they have been negotiated. Title VI of the Maastricht Treaty, dealing with provision for co-operation in the fields of justice and home affairs, provides a new dimension to our membership of the European Community, which received little attention during the public debate here on the ratification of the Maastricht Treaty and the referendum which approved the treaty. It contains a whole range of areas where agreement is to be entered into at intergovernmental level and where co-operation is to be encouraged at intergovernmental level in the judicial and home affairs area which will inevitably give rise either to agreements and conventions of the formal type now before us or perhaps agreements at intergovernmental level which may never come before this House for ratification.

We must have a mechanism in the Legislature whereby the general principles of those issues which are being discussed at intergovernmental level are debated in this House before they are discussed at intergovernmental level and before commitments are entered into.

In relation to this legislation, there is a number of points which I would like the Minister to refer to when replying. One of these is the question of when the legislation will come into operation. As I understand it, it is a mechanism whereby Irish citizens who have been offended in some way can take an action against people who, for example, have absconded to Spain and who are avoiding litigation here or the effects of litigation. Will it be possible, for example, for somebody who has a grievance here to pursue it through the Irish courts even though the issue had arisen before the enactment of this legislation? May that be enforced under the arrangements we are enacting here?

Mr. Taylor

Does the Deputy mean would it have retrospective effect?

Mr. Gilmore

Yes. I am aware of the argument generally made concerning retrospective effect but let us take the case, for example, of an employee whose employer did not pay him wages for a period of time and who then goes to Spain and cannot be sued in the normal way. Let us assume the problem arose one or two years ago. In the normal course of events if that person were still resident here it would be open to the employee concerned to pursue that person in the courts and perhaps obtain an award against his employer even though the problem may have arisen a couple of years ago. Will it now be possible under this legislation for a case such as that to be pursued and enforced in the country where the former employer is now resident even though this legislation is only being passed here today? In other words, if it can be enforced in Ireland can it be enforced in Spain of elsewhere? I would like some clarification from the Minister in relation to that.

The second area I wish to refer to concerns the issue of maintenance orders and the Bill that the Minister has promised is forthcoming to deal with the wider issue of the enforcement of maintenance orders and the ratification and the accession to the 1956 United Nations Convention. Both of these measures are referred to in the White Paper on Marital Breakdown. As I understand it, they are referred to as the type of legislation which would have to be put in place in advance of a referendum on divorce. The Government has promised that a referendum on divorce will be held. I understand that this referendum will be held in June 1994. If the referendum is to be held on that date obviously the various pieces of legislation will have to be put in place relatively quickly.

I appreciate that the Minister is not very long in office and many matters obviously require his attention, but I would have thought that our accession to the EC Maintenance Convention and the 1956 UN Convention would have required mainly technical legislation, the substance of which would already have been drafted and put in place. I wonder why the opportunity has not been availed of in this legislation to provide for our accession to those Conventions. Reference to the Bill before us and the promised legislation in relation to our accession to the EC Maintenance Convention and the 1956 UN Convention is made in virtually the same paragraphs of the White Paper on Marital Breakdown. Why did the Minister not avail of this opportunity to wrap up all these issues and put the legislation in place? As I said, I expect that such legislation would be mainly of a technical nature and would not require a great deal of policy consideration on the part of the Government. In any event the Government is already committed in the White Paper on Marital Breakdown to the introduction of such legislation.

The final point I wish to make relates to citizens who wish to obtain redress through this legislation. In his speech the Minister — he has made similar references on previous occasions — referred to the practical difficulties involved in enforcement of court orders and obtaining legal aid. In regard to any citizen, particularly poor citizens, wishing to obtain their rights through the courts in this jurisdiction, not to mention the enforcement of court orders outside this jurisdiction, the first and most painful problem they encounter is the cost and the potential risk involved. It is virtully impossible for poor people to get their rights through the Irish courts. We have a very unequal system of access to our courts. Reference has been made on a number of occasions in this House to the disgraceful situation which exists in regard to access to civil legal aid, the long waiting periods before one can even get an appointment with a lawyer in the civil legal aid scheme. This means that we can pass all the legislation we want — and it may be of great comfort to somebody who has the wherewithal to pursue an action in this jurisdiction to know that they can ultimately enforce it against someone who is living in Marbella — but there will be little consolation for someone who cannot even initiate the simplest of legal actions due to a lack of resources.

The most critical need in the law reform area is the need to extend the civil legal aid scheme and ensure that sufficient funds are made available. The £100,000 which has been promised is really only a drop in the ocean and in many respects will serve to undermine the staff already working in the civil legal aid scheme. There is a critical need to properly staff and fund our civil legal aid scheme so that people, particularly poor people, can have access to the courts and have their rights vindicated in the courts in the way provided for in law.

As I said, I support the legislation and I assure the Minister of my co-operation in having it enacted.

Mr. Hughes

I agree with the points made by Deputy Shatter towards the end of his contribution — I only came into the Chamber at that stage. It is not much good if we introduce Bills which are good in theory but which leave much to be desired in practice. Deputy Shatter referred to the enforcement of maintenance orders. Deputy Gilmore referred to a deserted spouse who may receive maintenance of only £20, £40 or £60 per week. It is not very practical for a woman in this position to chase her spouse around Europe, presumably with the assistance of our civil legal aid scheme or the legal aid scheme in another jurisdiction, in an effort to obtain more money.

I appreciate that Deputy Shatter has much more experience in this area, but I wish to refer to a case which occurred in my constituency a few months ago. A woman who had been deserted by her husband got 48 hours' notice of his intention to return from England to kidnap her children. When this woman sought an appointment at the free legal aid centre in Mayo she was informed that she could be given an appointment in one month's time. Accordingly, she had to consult a private lawyer about her rights. This woman, who was absolutely destitute, was not receiving social welfare as she had only returned from England. Fortunately, a solicitor in private practice, who took on her case in the full knowledge that no remuneration would be received, obtained the necessary interim and final injunctions for this woman.

I question the possibility of the reciprocal enforcement of maintenance orders in such circumstances when resources are not made available to our free legal aid centres. I have read that £1 million is being made available for solicitors in private practice who take on such cases. One has to recognise that the legal profession in the main has done tremendous social type work without any recognition or remuneration. The time has come for the Minister — I know he has looked at this issue — to make more resources available to our free legal aid scheme to ensure that spouses have quick recourse to our courts so that their rights can be fully vindicated.

This House has already passed the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988. The Judgments Convention is a Community convention for the purposes of Article 220 of the Treaty of Rome. Its object is to create a form of unified law district throughout the European Community whereby on the one hand leave to serve proceedings out of the jurisdiction will no longer be necessary and on the other there will be simplified enforcement procedures in respect of judgments given by the courts of contracting states. At present all member states, with the exception of Spain and Portugal, are parties to the convention. This Bill will enable Ireland to ratify the convention providing for the accession of Spain and Portugal to the convention. It will also enable Ireland to ratify two international conventions. It will give effect to the Lugano Convention, a so-called parallel convention, which is almost the same as the Judgments Convention save that the European Court in Luxembourg has not been given any jurisdiction in relation to this latter convention.

The effect of the Lugano Convention is that the EFTA countries will operate a similar system so that in practical terms the Judgment Convention will shortly begin to apply to virtually the whole of western Europe. It is important to be reminded that the scope of the convention is confined only to civil and commercial matters. These are terms derived from civil law concepts and do not necessarily equate with our own conceptions of these terms. In effect, matters pertaining to public law and criminal law are excluded from the scope of the convention. The Act further excludes revenue, customs, administrative matters, social security and arbitration, bankruptcies and winding up and the status or legal capacity of natural persons, rights and property arising from matrimonial relationships, wills and succession.

The question has to be asked whether further progress should be made to ensure that some of these practical day-to-day matters that affect our lives should not also be the subject of conventions with enforcement rights. As I understand it, this means that lump sum orders made by foreign courts in relation to matrimonial property cannot be enforced via convention procedures. Accordingly, on the face of it the Bill appears to be very limited in regard to the enforcement of reciprocal rights. However, it will be of assistance to persons doing business in this country with foreign customers in so far as debtors resident in any of the affected countries cannot avoid their responsibility as they did in the past. I have come across cases where small firms have had their fingers burned when dealing with foreign business people who took advantage of complicated and long drawn out legal proceedings in this country to avoid their responsibility to discharge lawful debts due to Irish firms. Many small operators know how difficult it was in the past, particularly in the sale of agriculture and aquaculture products, to collect debts especially from French firms with which they were dealing. We have also heard of the complicated procedures an injured party would have to go through in countries such as Spain and Portugal following a car accident. This Bill will facilitate persons or firms in enforcing judgments obtained and will not allow frontier borders to prevent or prohibit the enforcement of judgments.

We have all come across deserted spouses who have been left dependent on the State. This Bill provides that maintenance proceedings can be initiated in the jurisdiction of the woman.

Since joining the EC in 1973 Ireland has obtained many benefits. We must also assume our responsibilities with the force of law. There is now free movement of persons and goods. This Bill is a step towards harmonisation of arrangements between European partners.

This Bill is very technical but it substantially eases right of access to our courts for injured parties. Due to the free movement of persons and goods there is greater contact with European people. It is imperative that our procedures are updated to permit ease of access to our courts. We must ensure that procedures are simplified and are not costly. This imperative is reflected in the Bill. One must make only an ex parte application, which is expeditious and does not cost much. The fact that we have specific enforcement of judgments — and commercial organisations are well aware of it — might explain the relatively small number of requests for enforcement of judgments made in the Irish courts. I understand that fewer than 100 such applications were made since 1988 when the legislation was passed.

The convention proceeds on foot of a presumption in favour of the enforceability of all foreign judgment and convention cases. The courts take the view that the non-enforceability of such judgments is very much the exception rather than the rule. The basic structure of the convention favours a cheap and expeditious mechanism where foreign judgments may be enforced. This Bill internationalises justice for all our citizens. I commend the Minister for introducing the Bill and I expect to see it enacted quickly.

Ms F. Fitzgerald

I welcome this complex technical Bill. It is an important Bill and I congratulate the Minister on introducing it.

Irish judgments in civil and commercial matters will be enforceable in Spain and Portugal and throughout the EFTA countries. It will mean that we can reciprocate enforcement of judgments in this country from the countries mentioned. This should mean simpler and speedier arrangements for those who have got judgments.

I welcome the internationalisation of the law as seen in this Bill. The furthering of uniformity of standards and arrangements will help all who seek justice. The type of arrangement we see detailed in the Bill should increase confidence in the law and give some solace to people who have obtained judgments in our jurisdiction but who were unable to seek enforcement of those judgments if a company or a person had left the jurisdiction.

People are often overwhelmed by the law, by the cost, the complexity, the difficulties in enforcement and the difficulties of access. They then lose confidence in and respect for the law. This is very bad for our democracy because respect for our laws is an essential component of respect for and belief in democracy. Justice should not have borders. The more the principles of this Bill can be extended the more respect for the law will develop.

This Bill will benefit people in business and in their private lives. In the long-term this should help business relationships and where difficulties emerge we should be able to get a quicker solution to them. The Bill will also mean that the weaker party can commence proceedings in his or her jurisdiction if, for example, a company has moved.

Maintenance enforcement has been touched on by several Deputies. This is an important area and I welcome the sections dealing with this. The whole area of maintenance enforcement has been a source of great personal distress for many individuals, particularly women. I hope the envisaged harmonisation in the law will reduce this distress and that maintenance orders given in one country will be enforced in another with minimum fuss. I agree that extending the net is not the only action needed to make this procedure more efficient, less costly and less stressful.

What we see in this Bill is an example of the sort of co-operation which greater unity in Europe can bring. It is a practical example of that, although in order for the information in this Bill to trickle down it will need a little work. I hope the Department will produce some sort of explanatory memorandum which could be sent out to free legal aid centres, the AIM group for family law reform or various other groups working in this area. In terms of access to information that will be very helpful.

When our citizens see what should be in essence the very practical application of this Bill it will increase respect for European co-operation. We would like to see an extension of co-operation beyond Europe to the US and to New Zealand, where we do not have this type of arrangement.

This Bill raises the whole question of access to the law. The law here is inaccessible to far too many people. The lack of free legal aid, the waiting lists and so on mean that it is difficult for people to get basic information about the law. I spoke to the AIM group about this. They have produced a series of information leaflets and they could do one in this area. To ensure that people have information about the law is the first step in ensuring that the law is working for people. Too many people find it very difficult to get basic information on how the law can protect them and on how it can be accessible to them in the difficult personal circumstances in which they often find themselves.

I am sure the Minister would agree — we discussed this matter last week — when we debated the Estimates for the Minister's Department — that if people are to benefit under the provisions of this legislation we must ensure they have access to the law and that the information is clear and readily available. I have made a suggestion to the Minister in this regard and I hope that he will be able to act on it. Theoretical rights are one thing but practical rights require more work if they are to be meaningful.

Like my colleagues, I welcome this Bill, which will be of help in the areas I have mentioned. On the issue of maintenance, I ask the Minister to take on board some of the suggestions made by my colleague, Deputy Shatter, in relation to the variation of maintenance orders and linking such orders to the cost of living index. The various groups who help people in this area waste a great deal of time in trying to ensure that maintenance orders are enforced and are appropriate, having regard to the circumstances of the people involved. Those are the main points I wish to make and I congratulate the Minister again on introducing the Bill.

Mr. Lawlor

Like Deputy Fitzgerald, I compliment the Minister on introducing what is complex legislation. It is most desirable that it be implemented into law.

When one considers the history of this legislation and recalls the tortuous process of endeavouring to get the member states to bring their legislation into line, this is a major step forward which will probably not be fully appreciated until people reap the benefits in the years to come. I agree with Deputy Fitzgerald when she says that there will be a need to provide comprehensive information on family planning etc. to advisory groups and support agencies so that they will be familiar with the ways in which injured parties can benefit under the legislation.

The history of this legislation dates back to the 1968 Brussels Convention when the original six members of the European Community recognised that there was a need for them to have a common purpose. In 1978 provision was made in the Accession Convention for Ireland, Denmark and the United Kingdom to adhere to the 1968 Convention. In 1988 the conventions and the Protocol were incorporated into Irish law with the result that Irish judgments covered by the conventions were enforceable in the other nine member states.

In regard to commercial matters it is absolutely essential, as we rapidly move towards the point where I hope the Maastricht Treaty will be endorsed by all member states, that in the large free and open market protection is provided. The downside could be in the field of commerce in regard to patents, labelling, quality, uniformity of product and weights and measures, unless adequate legislation is introduced in member states and there is potential for enforcement. For this reason it is most desirable that the Bill has a speedy passage through the House so that we can avail of the benefits to be gained following its enactment. Given the multiplicity of languages and peculiar market traditions, it will be a difficult task to ensure uniformity. I hope that in implementing the legislation detailed information will be provided to manufacturers and, more importantly, that their rights in other European Community markets will be protected.

One of the advantages is that there will be a quantum leap on the civil side. I agree with those who say that the Minister for Equality and Law Reform is faced with a demanding and difficult challenge. The availability of resources will dictate the speed at which he will be able to move forward. This is the first Bill to be introduced on foot of the White Paper on Marital Breakdown. There will be a need for speedy action on a number of other fronts, in particular in regard to legislation dealing with the family home.

All of us have been visited by unfortunate constituents seeking guidance and assistance who were entitled to maintenance and support but which was not forthcoming because their spouse had moved to another country. I hope that issue will be addressed speedily under this legislation. In that regard I agree with Deputy Shatter when he says that there is a need to find a simplistic and easy but rational and reasonable way of calculating maintenance, taking inflation and other important aspects into account to ensure equity, and a fair transfer of resources to injured parties.

The Minister has shown that he is committed and determined to ensure that there is equality in the shortest possible time on a number of fronts. This is a major step forward at a time when we are likely to see people travel throughout the European Community in greater numbers due to low cost air travel. As we are aware, many of our young people, some of whom had good jobs here at home, have moved abroad to seek employment opportunities. In many respects the European Community is virtually a village in the sense that it is easier to travel to Germany than to Cork or Galway. I have no doubt that this trend will continue, but many difficulties will arise as a result. For example, people may fail to live up to their responsibilities in certain areas. For this reason I hope the Bill will have a speedy passage.

Having read the explanatory memorandum, I believe the Minister has covered all aspects of the matter. The legislation is in keeping with what has been agreed in the Lugano Convention and, more recently, in the provisions of the San Sebastian Convention which more or less gave effect to the technical amendments of the 1968 Convention. Therefore, it has taken since 1968 until now to bring about conformity and the implementation in law in this jurisdiction of what is most desirable on two very important fronts.

Like Deputy Frances Fitzgerald, I compliment the Minister on the introduction of this Bill. I look forward to its going on the Statute Book and the necessary information and statutory detail supplied to the various agencies, in the commercial and civil sectors, so that there will be real advantages and equity.

Mr. Durkan

Like other Members, I welcome the introduction of this Bill and wish it a speedy and effective passage through the House. Its provisions are progressive and necessary vis-à-vis maintenance orders, which have been referred to by other speakers. In relation to maintenance orders, I hope that the provisions of this Bill will not be used by another Government Department as a means of delaying decisions, which can also happen. As in the case of applicants for one parent's allowance, for example — when an individual's means may be very slim indeed when, under the provisions of the ordinary, domestic legislation, an applicant is required to make reasonable attempts to identify the location of the erring party and so on — the one aspect about which I worry is that applications could be put on the proverbial long finger resulting from legislation introduced to help and assist in such circumstances.

I have advised many people, women in 99 per cent of cases, to devote more time to obtaining their rights under existing legislation and then to deal with the secondary aspect of identifying the location of the erring party when they have sufficient financial resources.

We must all welcome the provisions of this Bill for the business and commercial sector. Most Members of this House will, in recent times, have had the experience of a constituent bringing to their attention the fact that a runaway businessman or woman has vanished from this jurisdiction and is now living in some exotic, sometimes erotic location in far-flung, sunny, sandy places——

Mr. Taylor

——or sometimes both.

Mr. Durkan

——or sometimes both, when they appear to scoff and laugh at the unfortunate victims of their exploits, the former being well nigh beyond the reaches of the law in so far as this jurisdiction is concerned, if not well beyond the reach of the law of some of the locations and havens to which they may have flown. The sad thing about it — and this still obtains in the financial area — is that some countries almost welcome an intruder who comes bearing somewhat dubious financial burdens for placement in a secret, safe hideaway which will yield a good return in due course. I am sure the Minister knows quite to what I refer although I do not have a specific case in mind. Of course, the result is a destabilising effect on the business and financial life not of one country within Europe only but on the entire European structure resulting from the perceived success of people who invest ill-gotten or so-called hot gains in secret or numbered bank accounts, in far away places. I hope the provisions of this Bill will also be of some benefit in countering that practice.

One or two areas have been excluded from the relevant conventions. In his introductory remarks, the Minister said that these include matters of an explicitly criminal nature, revenue, customs and administrative matters, status issues, social security and arbitration. One can readily recognise some of those issues as being beyond the provisions of the relevant conventions and so on. I wonder whether there are offences, not necessarily readily recognisable as criminal offences, which could mature into or ultimately become criminal offences. How will offences be dealt with under the provisions of the Bill?

The other area to which I wanted to refer is insurance, an interesting one, which will become even more interesting as markets are freed up since, the more freedom prevailing within the markets, the more difficult it will be to monitor or keep a tab on all the likely happenings. The invention of the computer was a godsend to the financial services but it also caused headaches.

It is amazing that, on the one hand, the computer has been a boon while, on the other it has led to a ready escape route for unscrupulous people. I hope that the provisions of this Bill will provide the means to trace and punish them for their crimes.

The Minister also referred to contracts and consumer law in his introductory remarks. This is another area which, with the opening of the internal market and the broader base of contracts likely to arise in future, will present greater opportunity for exploitation. The day is long gone when the furthest point for the supply of goods and services from rural areas was to Dublin, Cork or perhaps Belfast and London. That base now extends to Bonn, Amsterdam, Brussels, Paris and elsewhere. In a certain overseas television programme, which I presume is still being shown, there were indications that business people in another jurisdiction were less than attentive to the finer detail of commitments to their consumers and in relation to contracts which they had no intention of honouring good, bad or indifferent. A certain blonde-haired lady used to present that programme, I presume she still does. Its contents brought to our attention that a group of shady dealers managed to con people into believing implicitly in what they were selling or saying. They were only found out after considerable time had elapsed. I have seen outrageous exploitations, whereby people entered into contracts with consumers — in other words, they sold something or proposed to sell something, or had given an indication as to the delivery of goods or services — and failed to deliver. I hope that practice will be stamped out under the provisions of this Bill. Like other legislation we are often sure at the time of its introduction that it will resolve the problems in respect of which it has been introduced but it does not always work that way. I hope that the provisions of this Bill will be sufficiently broad to encompass vagabonds who perpetrated those kinds of activities over the years and that there will be no necessity to come back to the House in a few years time to improve the legislation.

It is very irritating for business people to see on television, hear on the radio or read in the newspaper, reports of the present life style of someone who for business reasons had to leave the country in a hurry — especially when he does not seem to want for anything — for sunshine and all that goes with it. I hope the introduction of this legislation will remove that irritant and will ensure that people who have a tendency to go down that road will be a little more careful in their dealings with their customers and be more conscious of their duties to their business associates. I hope the existence of this legislation will act as a damper so that we will not have as many hideaway millionaires as at present.

Mr. Ferris

First, I congratulate my colleague, Deputy Taylor, the Minister for Equality and Law Reform, on introducing this Bill. The Bill provides for the incorporation into Irish law of the Lugano Convention of 1988 and the San Sebastian Convention of 1989 and, as a result, judgments in Irish civil and commercial law will be enforceable in the areas designated, as well as in Spain and Portugal and the six European Free Trade Association countries.

The genesis of this legislation goes back to 1968 when the Brussels Convention of that year provided speedy procedures for enabling judgments in the six founding member states of the European Communities to be recognised throughout the Community. In 1971 a Protocol provided for the interpretation of the Brussels Convention by the European Court of Justice. In 1978, we had the Accession Convention which provided for Ireland, Denmark and the United Kingdom to adhere to the 1968 Convention. Another Accession Convention of 1982 provided for Greece to adhere to the 1968 Convention. In 1988 the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act provided for the incorporation of previous conventions and Protocols into Irish law. The result was that the Irish judgments covered by the convention became enforceable in nine of the EC states and vice versa. The Lugano Convention of 1988 provided for the reciprocal enforcement of civil and commercial judgments between countries in the EC and the six members of the European Free Trade Association, namely Austria, Finland, Iceland, Norway, Sweden and Switzerland and, as I said, the San Sebastian Convention of 1989 provided for Spain and Portugal to adhere to the 1968 Brussels Convention and some technical amendments of the 1968 Convention. In a recent High Court case the judgment was not enforceable because it was discovered that some aspects of Irish law were not in conformity with European law.

The main features of this Bill apply to civil and commercial matters only, including maintenance orders, and does not include Revenue, Customs or administrative matters, the status or legal capacity of persons, property rights arising from marriage, wills, succession, bankruptcy, insolvency, social security and arbitration. It provides that a defendant must generally be sued in the country where he or she is domiciled. However, there are some exceptions, for example, an insurance policy holder may sue in the country where he or she is domiciled as can a consumer who is party to a contract for the sale of goods or supply of services, as well as a maintenance creditor. Matters relating to tort can be dealt with in a court in the place where the damage occurred and matters relating to contracts may go to court in the place where the contract is performed. Actions regarding land, except certain short-term tenancies, are also to be heard in the country where the land is located. This Bill provides that the courts of another contracting state are generally obliged to enforce a relevant judgment of another contracting state with some exceptions, for example, where the judgment is contrary to public policy or where the defendant is not given notice of the proceedings.

The Bill provides for a speedy enforcement procedure. In Ireland this is carried out by the Master of the High Court. This is a technical Bill which is necessitated by our membership of the Community. It is appropriate that we will be able to update our laws to take account of changes that have taken place. It is ridiculous that we could not enforce penalties for the use of angel dust because it was found in court that the State did not have the right under EC law to enforce it. When the State is seen to be negligent because it has not tidied up its laws it is appropriate——

Mr. Shatter

On a point of order, I wonder if the Minister will do me the luxury of preparing a script when we have legislation such as this in the same way as clearly he has prepared one for the Deputy who is now speaking.

Mr. Taylor

I did not prepare a script for him.

Mr. Ferris

Deputy Shatter would not be aware of where I received my briefing. I am perfectly entitled to make a contribution in this House, as indeed is any other Member. As I said on a previous occasion when Deputy Shatter interrupted me, we are not all privileged to have the resources of the Four Courts available to us when we need back-up in this House.

I am pleased that a Minister from the Labour Party is bringing forward this legislation. It is essential that this Bill is introduced in order to ensure a coherent approach to the international recognition and enforcement of judgments in civil and commercial matters. It is appropriate that as a rightful member of the European Community the State carries out its legislative role and I am sorry if Deputy Shatter considers he is the only Member who can make a contribution in this House on any subject on which he seems to specialise. Thankfuly we have the right to free speech, the right to make representations and the right to make contributions in this House. Members have the right to be informed on legislative proposals. I, as the Labour Party Chief Whip, have the responsibility to speak in this House. I intend to speak whether Deputy Shatter considers this a matter on which to raise a point of order or not, or that his own sources of information do not allow him to make a proper contribution.

Having said that, let me congratulate the Minister for Equality and Law Reform on bringing forward this technical Bill. During the Whips meetings there was unanimity that this Bill would be brought forward as expedituously as possible and I am delighted to be associated with its passage through this House.

Mr. Briscoe

As has been said by other speakers, this is a technical Bill. People such as myself who are not technically minded find it difficult to understand the contents of the Bill. However, having studied the Minister's Seanad speech of 29 April and his contribution today, I understand what we are dealing with here. This Bill enables us to ratify two conventions. From the first day of the third month after deposit of the instruments of ratification civil judgments and court orders will be enforceable on a reciprocal basis in Spain and Portugal and in the EFTA countries, namely, Austria, Finland, Iceland, Norway, Sweden and Switzerland. Most people are well aware of the many chancers who make a killing here and then run off to the sunny climes of Spain to enjoy their illgotten gains. It is not before time that this legislation, which will formally ratify our signature to the agreements, is introduced. Perhaps when replying the Minister would state whether in the event of other countries joining the EC further legislation will be required — in the Minister's Seanad speech he referred to the EFTA countries — whether this legislation will suffice, or whether we will deal with the matter by way of an Order of the House.

In his speech today the Minister said:

The impetus behind the original Brussels Convention, which was drawn up in 1968, was to give meaningful effect to Article 220 of the Treaty of Rome. That Article called on member states to secure "the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals".

I read that statement to focus the attention of the House on the simplicity of the manner in which the Treaty of Rome was written — in a language that ordinary laymen can understand. Jean Monnet requested that the Treaty of Rome be drafted in a way that would be understood not only by lawyers but by lay people and legal experts had a difficult job drafting it in such a way. I mention that because sometimes legislation from the European Community is drafted in a way that only lawyers can understand.

I welcome this legislation which provides that spouses who flee the country to avoid paying maintenance may be followed for that money. This measure will be welcomed by people on the receiving end of such trickery and roguery. I wish the Minister well. I am glad he has introduced a non-controversial Bill, which all of us agree is necessary.

Mr. M. Ahern

I join with Members who welcome this Bill. This is a matter of which many of us who are not lawyers have no great knowledge. It is a very important matter, especially in the context of a united Europe. It is not before time that the Lugano Convention of 1988 and the San Sebastián Convention of 1989 were set down in legislation.

Lay people may ask what this legislation will mean to them. There is a number of issues with which people will identify, one of which is the following of spouses for maintenance. All of us are aware of instances where husbands against whom maintenance orders have been made leave the jurisdiction. This legislation provides that these people may be followed for maintenance. However a problem will arise for spouses in the cost of following these people. I am sure the Minister and the Government will consider this problem because while such a law is welcome, in practice it must be followed through. It is important not only for the individuals involved in maintenance cases but also for society that people with means are not allowed avoid their responsibilities. I am sure the Minister will take cognisance of that fact and ensure that finances and resources are made available for this purpose.

Another matter of importance to the general public is the pursuing of cases in countries where an offence occurs. For example, if an offence occurs against an Irish person who has rented a residence abroad to another Irish person the case may be taken here. That is an important element of this legislation. This Bill brings our legal system more into line with that in Europe. This is very important in the context of a united Europe. I join with other Members in congratulating the Minister on bringing forward the Bill expeditiously and wish him success in bringing it into operation.

Minister for Equality and Law Reform (Mr. Taylor)

I thank all Deputies for their constructive contributions on this legislation. Following a request I wish to assure Deputies that certain aspects of the matter will be re-examined and followed up. Deputy Shatter asked about the status of the Bill when I received it from the Department of Justice. A draft was in existence but it was revised and that is now before the House.

Deputy Shatter referred to the delay in bringing forward the Bill. Perhaps there has been some delay on our part in acceding to the conventions but, if so, we are not the worst among European countries. So far as the San Sebastián accession convention is concerned, to date eight countries — France, Greece, Italy, Luxembourg, the Netherlands, Portugal, Spain and the UK — have ratified. The four which have still to deposit their instruments of ratification are Ireland, Germany, Belgium and Denmark. That convention entered into force on 1 January, 1991 after ratification by Spain, France and the Netherlands. The Lugano Convention only entered into force on 1 January 1992 following the lodgment of instruments of ratification by Switzerland and France. To date the position is that apart from France only five other EC countries — Italy, Luxembourg, the Netherlands, Portugal and the UK — have ratified.

A query was raised by Deputy Shatter concerning the matrimonial home Bill. This Bill gave rise to a number of complexities but it is reaching completion and I hope to have it circulated in the current session.

Deputy Shatter raised the very important question of the tracing of maintenance defaulters through the medium of the Department of Social Welfare. There is no doubt that it is the weak link in the chain. I take the view that procedures ought to be developed where all appropriate resources of each State — the police authorities if necessary, social welfare authorities and social security numbers — ought to be directed to locating defaulting maintenance debtors. Some years ago it was the proud boast of the British police that they could locate anybody anywhere within 24 hours by using their networks. That probably does not apply today. There is no point in having any laws, whether in Ireland or elsewhere, if those who owe and are evading cannot be located and thereby cannot be made to pay up and meet their responsibilities. I take that point and I will try to ensure as far as possible that all the resources of the State are made available to locate defaulters abroad, of whom there is an increasing number.

Deputy Shatter queried the number of applications for maintenance orders. The information I have been able to obtain at short notice is that approximately 120 maintenance orders were applied for under the 1974 Act. That includes those emanating from Ireland for enforcement in England and vice versa. I am informed that under the Jurisdiction of Courts and enforcement of Judgments (European Communities) Act, 1988, approximately 40 applications are made annually to the Master of the High Court.

The question of the variation of maintenance orders was also raised. The position appears to be that if the circumstances of the maintenance creditor change, she can obtain a variation order from her local court in Ireland which can be enforced in Spain or wherever. By the same token if the circumstances of the paying party worsen they too could go to their local court and have the enforcement order varied. I take the point that that presents a difficulty for the spouse in Ireland but equally it presents a problem for the spouse in Spain, if such is the case, in responding to an application for an increase or a variation coming from here. That is part of the system for mutual enforcement.

The question of automatic increases being provided for in maintenance orders and being linked to the cost of living index merits careful attention. When drawing up separation agreements prudent lawyers usually, though not always, provide for automatic increases under the cost of living index in setting out maintenance payments. I will examine that issue when we come to review that aspect of family law when the divorce question is out of the way. There is a number of matters dealing with barring orders, protection orders and the extent to which they will apply. Perhaps this issue could be taken on board and examined carefully in the context of that legislation.

Deputy Michael McDowell raised a number of very interesting and challenging legal questions to which I would not presume, at short notice, to give authoritative responses. He asked about the case of a person defamed, say, by a Paris journal and whether that person could sue in our courts. It would appear that Article 5.3 of the Brussels Convention covers that situation and that it gives jurisdiction to our courts. If any dispute arose at the end of the day concerning the final interpretation it would be a matter for the European Court. On the question of a Spanish person being injured by an Irish resident either in Spain or here, Article 5 covers that situation. I take the point that it gives rise to the question of choice of forum, as Deputy McDowell rightly put it. It is an inbuilt part of the system that if choices and rights of enforcement are given, that type of consequence on occasion will be unavoidable. Ideally there would be a uniform damages position applicable throughout the Community. Perhaps that position will be achieved in the fullness of time when more uniformity in the law itself is achieved as distinct from the actual procedures and enforcement methods. At present it appears there would be a choice of forum. The United States position is an important one. I would be inclined to agree that if it is to be advanced it should not be done on an Irish unilateral basis: an EC position would be the appropriate one to examine. He raised also the question of punitive damages. My off-the-cuff view would be that they would be enforceable unless it came within the ambit of being contrary to public policy.

Deputy Gilmore and a number of other Deputies raised the question of the practical need for implementation of rights through a more effective and well-financed civil legal aid system. I thoroughly agree with that prospect. As I said when the Estimates for my Department were being debated at the committee last Friday, this is being given very high priority by me and it will be advanced to the maximum possible extent within budgetary parameters.

Deputy Gilmore asked if claims commenced before the passing of this Bill could be maintained when it was passed and became an Act. I would think that once a person was in a position to obtain an order or a judgment in an Irish court, it would be enforceable in the EC or EFTA country concerned, even though the claim would have arisen before the passing of the Act.

Deputy Durkan said he was anxious lest a deserted wife might have her application for maintenance delayed because she might not know exactly where her husband had gone. That is a matter for the Minister for Social Welfare and I will consult with him on that.

Deputy Frances Fitzgerald asked about access and I dealt with that in the context of legal aid. She raised a very important point in regard to information. I fully support the work of AIM and I will do whatever I can do to spread information about the effects of this legislation and the two conventions being adopted. That also applied to other important aspects of family law.

Question put and agreed to.

Agreed to take remaining stages today.

Bill put through Committee and reported without amendment.

Question proposed: "That the Bill do now pass."

Minister for Equality and Law Reform (Mr. Taylor)

In the few minutes remaining I would like to thank Deputies Shatter and McDowell for facilitating the passage of all Stages of the Bill. It is largely a technical measure but it has many important implications with further downstream developments.

I will undertake to bring into the House as quickly as possible the other measure that many Deputies referred to and which will probably be known as the Family Law (Recovery of Maintenance) Bill. It is at an advanced stage and it will have the effect of bringing the number of countries in which the new simplified procedure will apply to some 40 countries worldwide. That will include Australia and New Zealand. That new procedure will be much simpler and much speedier and will present even fewer problems for maintenance creditors. It will be up to the central authority appointed in each state to determine what action should be taken and initiate the necessary legal procedures. It is a nineties development involving a minimum of expense and putting the responsibility for enforcement and maintenance procedures where it properly belongs, that is, with the State authorities themselves. The maintenance creditors simply reports the matter to their central authority which then prepares the details of the application. Translations have to be provided and that service will be provided by my Department, which will be the relevant central authority here. Transmission then takes place to the central authority of the other state and the proceedings are taken from there.

The United States is not involved in that convention. That is regrettable because it is a country where we would have need of it. Perhaps something can be done to get the United States in on convention positions.

Finally, let me thank the Members again for their contributions, which were appreciated.

Question put and agreed to.