The Minister is aware of the background to this amendment. I await his response.
Civil Law (Miscellaneous Provisions) Bill 2006: Report Stage (Resumed) and Final Stage.
There are good reasons retrospective legislation is only resorted to on very rare occasions. The particular instance which Deputy O'Shea has raised is that of a person who was in a normal landlord and tenant relationship. The relationship was terminated. The tenancy was terminated on the basis that the landlord would not extend the tenancy because the tenant would accrue rights under existing legislation by virtue of the renewal. Accordingly, the landlord and tenant relationship came to an end. The Deputy is inviting me to legislate retrospectively for that single instance. It has to be borne in mind that landlords and tenants plan their transactions on the basis of existing law. Were this worded to provide a specified future date, even in advance of the actual commencement of the legislation, I would be open to such an amendment but I cannot retrospectively apply the legislation in the way that is suggested in this amendment because I cannot be certain of what implications that would have for other transactions and for the certainty of other transactions that have been reached.
I take the points the Minister has made. As I said earlier, this is one solution we are suggesting. This is just one amendment to the Bill. I gather from what the Minister said that there is no course open to him where this case could be dealt with in isolation. I think he will agree that the situation in which this tenant finds herself gives rise to hardship.
How stands the amendment?
Obviously, the Minister will not accept the amendment so I will press it.
Amendment No. 21 is in the name of Deputy Pat Rabbitte and arises from committee proceedings.
I move amendment No. 21:
In page 28, between lines 12 and 13, to insert the following:
"37.—Section 6 of the Juries Act 1976 is amended by the deletion of "and under the age of seventy years" and the insertion of "and not incapable by reason of infirmity"."
I referred to this issue earlier in the debate. The existing disqualification of those aged over 70 from jury service is age discrimination against senior citizens who wish to serve on juries, of whom there are many. Rather than having an arbitrary cut-off point at 70, there should be a more flexible test to allow capable persons over 70 to perform their civic duties. I would draw the Minister's attention to the section on vision in Towards 2016, the ten-year framework social partnership agreement, which states: "Every older person would be encouraged and supported to participate to the greatest extent possible in social and civic life." That is the essence of the amendment. I hope the Minister will be able to effectively meet what is sought by the Labour Party.
While I did not take the Bill on Committee Stage, I had an opportunity to examine the Committee Stage discussion on this issue. I have some sympathy with the point of view expressed in this amendment. The law as it currently stands in regard to the age limit of jurors is that the upper age limit is 70 years with a right of persons aged between 65 and 70 to be excused. The proposed amendment tabled here seeks to have the upper age limit removed in respect of jury service and to take away any right of excusal by reason of age.
The House is no doubt aware that the law on juries is one of the subjects included in the Law Reform Commission's third programme of law reform, a programme designed to run from now until 2014. In other circumstances, I might ask the Deputy to hold off a proposed amendment to an area of the law that was slated for such a review so it could be addressed in that context. However, this Bill already contains some small but important changes to juries legislation, and I am well disposed towards the change now proposed.
I am not, however, well disposed to the proposal that we should take away a right of excusal by reason of age. In my view, when a person attains the age of 65, he or she has given considerable service to the community and should not be required to serve on a jury. However, I accept there is an issue with regard to persons over 70 and whether we should permit them to serve on juries so juries would constitute a representative cross-section of the community — it is a constitutional requirement that a jury be a reasonable cross-section of the community. Of course, when the original Act of 1935 and the subsequent Act of 1976 were enacted, the life expectancy of the individual in the community was not that far beyond 70 years of age. We are now in a very different position.
I am prepared to review this issue. Unfortunately, the conclusions of my review would have to be presented to the other House. Nonetheless, a valid point has been raised by Deputy Rabbitte in his amendment. Rather than accept the tabled amendment at this stage, I would like to take a little further time to reflect on the detail of the proposal, to consult with the Courts Service and to consult with my colleagues in Government because it would be a change of such character that I would have to bring it to them and seek their approval as necessary.
It is the case that the state of Victoria in Australia has done this, although it may be argued that many other common law jurisdictions have not yet done so. However, given the maturity of the country in which we live, it is something we should consider in a serious way. I thank Deputy Rabbitte for tabling the amendment and Deputy O'Shea for moving it. I will give it consideration.
On the basis of what the Minister's has said, which I take in absolute good faith, and the prospect that he will introduce a suitable amendment to meet the issue in the other House, I thank him for his positive response and withdraw the amendment.
Amendment No. 22 is consequential on amendment No. 23 and the two amendments may be discussed together.
I move amendment No. 22:
In page 33, in line 5, to delete ", and" and substitute ",".
Amendment No. 23 is consequential to an amendment made to the Video Recordings Act 1989 which was inserted into the Bill on Committee Stage. The amendment to section 31 of the 1989 Act which was inserted by the select committee relates to the fees which the Minister for Justice, Equality and Law Reform may set for the censor, who is to become known as the director of film classification. The amendment has the strong support of the industry and industry commentators.
The consequential amendment now proposed is a standard technical provision which ensures that the income generated from fees fully meets the costs associated with the operation of the Office of the Film Censor, to become known as the Office of the Director of Film Classification, in classifying and certifying video works.
Amendment No. 22 is a technical drafting amendment consequential on the acceptance of amendment No. 23.
I move amendment No. 23:
In page 33, line 19, to delete "purposes." and substitute the following:
(r) in section 33, by substituting the following for subsection (2):
"(2) The fees charged under this Act shall not be fixed at a level calculated to produce an annual amount which is less than that sufficient to discharge the expenses incurred in the administration of this Act.".
Amendment No. 24 is consequential on amendment No. 25 and the two amendments may be discussed together.
I move amendment No. 24:
In page 38, line 7, to delete "and".
These amendments, the first of which, amendment No. 24, is a technical drafting amendment consequential on amendment No. 25, were signalled on Committee Stage. The purpose of the substantive amendment, amendment No. 25, is to implement an extension to the recommendations of the working group on insurance-related issues in the gender non-employment directive, Directive 2004/113/EC of December 2006. In doing so, it is adding a derogation, as allowed under Article 5(2) of the directive, in respect of health insurance traded internationally where gender differentiation is allowed under the law of the country in which the product is to be sold.
This maintains the existing exemption enjoyed by Irish health insurance companies under section 2 of the Health Insurance Act 1994, as amended by section 2 of the Health Insurance (Amendment) Act 2001, to differentiate on gender grounds when selling in other countries in which the local regime permits gender differentiation in health insurance. This is a minor technical amendment to maintain thestatus quo. The Attorney General is of the view that the proposed amendment is compatible with the goods and services directive. This derogation is being made to support free movement of services and to allow Irish-based companies to compete equally in the internationally-traded health insurance market in other countries.
While I am reluctant to open up a debate on the Health Insurance Act 1994, this is a Civil Law (Miscellaneous Provisions) Bill and, from that point of view, it covers a fairly wide range of issues. Notwithstanding the reason put forward by the Minister, which was put in somewhat technical terms, I will venture to ask him to give a practical example of a difficulty that has arisen to give rise to this amendment. We discussed this on Second Stage and Committee Stage but we are now back to a very technical and, dare I say, complex reading of an amendment which might have some practical application to which the Minister might advert.
I understand it is a problem that has not arisen to date but that might affect an Irish insurer in the future, or the capacity of an Irish-based insurer to compete in the market of another member state.
I move amendment No. 25:
In page 38, line 12, to delete "1994)." and substitute the following:
(c) those classes of insurance which are contracts of insurance, or other insurance arrangements, which fall within paragraph (d) of the definition of “health insurance contract” (inserted by section 2 of the Health Insurance (Amendment) Act 2001) in the Health Insurance Act 1994 if, but only if, the differences in treatment referred to in paragraph (da) of subsection (2), in so far as they relate to such contracts or arrangements, as the case may be, are permitted by the law of the place where such contracts or arrangements, as the case may be, are marketed.”.
Amendments Nos. 26 and No. 27 are related and may be discussed together.
I move amendment No. 26:
In page 41, line 32, to delete "(iv)" and substitute "(v)".
Amendments Nos. 26 and 27 are technical in nature and are required to correct the text of the Bill in the first instance and to clarify the text in the second.
I move amendment No. 27:
In page 42, to delete lines 7 to 16 and substitute the following:
60.—Section 28(9)(c)(i) of the Civil Legal Aid Act 1995 is amended—
(a) by inserting “the Residential Tenancies Act 2004,” after “property),” and
(b) by deleting “the Rent Restrictions Acts, 1960 and 1967,”.”.
Amendment No. 28 in the name of the Minister arises out of Committee proceedings.
I move amendment No. 28:
In page 42, between lines 16 and 17, to insert the following:
61.—Section 29 of the Civil Legal Aid Act 1995 is amended by substituting the following for subsection (2):
"(2) The Board may—
(a) in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources,
(b) waive any contribution payable pursuant to this section and to any other regulations under section 37, or accept a lower contribution, on the ground that a failure to do so would cause severe hardship to the applicant.”.”.
Amendment No. 28 results from a request made by the Legal Aid Board to clarify the criteria the board should have regard to in waiving contributions in respect of legal aid or advice. At present, section 29(1) of the 1995 Act provides, among other things, that a person shall not qualify for legal aid or advice unless he or she pays to the board a contribution towards the cost of providing the legal aid or advice determined in accordance with regulations under section 37.
Section 29(2) provides that "The Board may, in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources and may waive any contribution payable pursuant to this section and to any other regulations under section 37 or may accept a lower contribution." Thus the current legislation provides for a number of things. First, it provides that the board may, in accordance with regulations made under section 37, provide legal aid or advice without reference to a person's financial resources. Second, the subsection provides that the board may waive any contribution payable pursuant to this section or any other regulation.
Nothing in section 29(2) warrants the interpretation that a waiver of or acceptance of a lower contribution only applies where the contribution payable is the minimum. Confusion has arisen because implementing regulations of 1996 purported to limit the applicability of the provisions enacted by the Oireachtas. It limited the circumstances in which the fees could be waived to those in which only the minimum fee was payable. Consideration of this conflict by the Department and the Legal Aid Board has resulted in the proposed amendment to clarify the situation. The relevant change to the conflicting regulation to bring it into line with the policy of the Act will be brought about by means of a statutory instrument.
The amendment provides that the grounds for the waiving of contributions are where not to do so would cause severe hardship to the applicant. This clarifying wording is in keeping with that used in Regulation 21(9) of the Civil Legal Aid Regulations 1996 and with the intention of the Act.
I am sure the Minister will have received late representations on this issue, as I have. Perhaps there is an issue that may require some clarification. I note that the Leas-Cheann Comhairle prefaced his introduction of the amendment by saying it arose out of Committee proceedings.
That was my advice.
I am not sure whether that is the case because my understanding is that this is a new amendment to which reference was not made on Committee Stage. This is why it has given rise to some concern, that these are new amendments being tabled by the Minister that did not appear to have been part of the discussion on Committee Stage. For that reason I wish to seek clarification from the Minister on a submission that has been made by the free legal advice centres with particular reference to amendment No. 28 and the consequent amendment to section 61 of the Bill and, in turn, section 29(2) of the Civil Legal Aid Act 1995.
I accept what the Minister said, that the amendment is in response to a submission by the Legal Aid Board. I hope if there is confusion that we can deal with it satisfactorily. In terms of the purpose of the proposed amendment to section 29(2), it appears that the board has the power to grant legal aid without reference to a person's financial resources. This would require regulations under section 37 to be passed, given that reference in the amendment is to certain regulations. The proposed section 61(2)(a) states “in accordance with regulations under section 37, [the board may] provide legal aid or advice to an applicant without reference to his or her financial resources,”
I am somewhat concerned at the fact that this is in accordance with regulations because I am given to understand there are no such regulations. If that is the case, there is no such power. I may be mistaken in that and if I am, I am prepared to stand corrected. However, if there are no regulations it is difficult to see how that power might be vested.
It was also put to me that there is another possible construction, that there is a general power under the subsection to provide legal aid without reference to a person's resources of a financial nature and to waive or reduce any contribution for legal aid services, and specific regulations are not required to do so in any event. Is the Minister inadvertently or otherwise attempting to ensure that in future this point cannot be argued?
As I understand it, there is an element of latitude at present, notwithstanding the means test, and that is well founded if not in statute law then certainly in precedent. I hope the import of this amendment will not give rise to a situation where such discretion or latitude no longer applies. I am somewhat concerned at the speed with which the amendment has been put forward and the fact that nothing similar appeared to have been in the Bill in an earlier construct.
I accept the Minister's good faith in the matter, that we must avoid a situation where, unwittingly or otherwise, hardship might accrue to an applicant on the basis that the amendment gives rise to a removal of the current latitude. I am concerned that if the circumstances in which contributions can be waived or reduced is narrowed to such an extent, it may cause difficulties.
Go raibh maith agat, a Chathaoirligh. I am in receipt of the same representations in regard to this amendment. The amended version and the existing wording in the Act are identical except for the following "or may accept a lower contribution." in the existing subsection. The amended version is split into two paragraphs and ends with, "or accept a lower contribution, on the ground that a failure to do so would cause severe hardship to the applicant." The proposed change would result in narrowing the circumstances where contributions can be waived or reduced.
The representation which was received by Deputy Flanagan and which was passed on to me states:
To understand the potential significance of this proposed amendment, some background might be useful. As part of its work, Free Legal Advice Centres campaign for improved civil legal aid services in Ireland. This involves speaking to people whose application for legal services has been refused and where such refusal results in an unmet legal need, potentially appealing that refusal on the applicant's behalf.
In one such appeal in 2007 where an applicant on low earnings had been refused legal aid because she exceeded the means test ever so slightly, one of two arguments advanced on her behalf [by the Free Legal Advice Centres] was that the board had the general power under section 29(2) of the Act above to grant legal aid without regard to a person's financial resources where it would be appropriate to do so.
This appeal did not succeed but the board was very slow to give grounds for the failure of the appeal on this ground and FLAC knows that it sought legal opinion on the question. In any case, for a variety of reasons, that appeal is now the subject of judicial review proceedings in the High Court.
The issue is before the court and I am interested in the Minister's response. It is stated here that Deputy Charles Flanagan said this is a new amendment about which there does not appear to have been any discussion on Committee Stage. As I was not present for Committee Stage, I cannot say whether that is the case. The Minister is clear on the issues and I look forward to his response.
I will assist the House as much as I can. I have not had the opportunity of examining the representation referred to by the Deputies. It is worth examining the current provision, which is that the board may provide legal aid or advice to an applicant without reference to his or her financial resources and may waive any contribution payable pursuant to this section. The regulations of 1996 reflect the understanding of the board that the waiver can arise only where the minimum fee is payable. This means where the board has decided to provide legal aid or advice without reference to the person's financial resources, because of the presence of the word "and" in the current section 29, the board can make the waiver only when the applicant already meets the requirement of having obtained legal aid without his or her financial resources. The amendment proposes that the board be given additional latitude so that it may give a person legal aid or advice without reference to his or her financial resources, waive a contribution payable under this section or accept a lower contribution. We are widening the latitude available to the board under this subsection and that is the motivation behind this amendment. The board's understanding and its regulations of the existing provision is that it limits the circumstances where waiver can take place to those circumstances where only the minimum fee was payable.
We are on Report Stage and before the conclusion of business we will be on Final Stage. Will the Minister give an undertaking that the matter might be revisited in the Seanad in the event that the clarification proffered by the Minister is not sufficient to meet the representations made? I accept that there is no ulterior motive here.
The Deputy gave me the representation and I will have it examined and responded to.
I regard that as sufficient and in the circumstances we will allow matters to proceed, unless Deputy O'Shea has another view.
I do not have another view. That is fair. On Deputy Rabbitte's behalf, I will see this is sent to the Minister so he can see it before he appears in the Seanad with the Bill.
I move amendment No. 29:
In page 42, between lines 16 and 17, to insert the following:
62.—Section 30 of the Civil Legal Aid Act 1995 is amended—
(a) by inserting the following after subsection (6):
"(6A) Where the Board has granted a person a legal aid certificate for proceedings in any court or before any tribunal prescribed by the Minister under section 27(2), then, notwithstanding any enactment (including any provision of this Act), any statutory instrument made under any enactment, or any rule of law, the proceedings shall be issued in—
(a) the name of the law centre concerned where the law centre is responsible for providing the legal aid concerned,
(b) in any other case, the name of the solicitor or firm of solicitors responsible for providing the legal aid concerned.”,
(b) in subsection (7), by substituting “shall” for “may”.
This is a substantive amendment and will allow the Legal Aid Board to issue proceedings in the name of the law centre rather than, as at present, in the name of the individual solicitor who has seisin of the case. Administratively, this change will bring the law centres into line with private practices and ease the workload within the law centres as the professional staff will not necessarily have to see and sign all legal documents and it will not be necessary to file notices of change of solicitor with the courts when a solicitor leaves a law centre and is replaced by another.
The current practice is that each solicitor in a law centre practises as a sole solicitor. In a partnership of solicitors, the name of the partnership can be affixed to court documents and all the solicitors in that firm can have authority to transact business for each other. That principle hitherto did not apply to the law centres. The purpose of this section is to empower law centres to conduct their business in the same way as a practice with a number of partners.