I propose to share time with Deputy Mattie McGrath.
Civil Law (Miscellaneous Provisions) Bill 2001 [Seanad]: Second Stage (Resumed)
Is that agreed? Agreed.
One of the Deputies opposite recently castigated members of the Technical Group for never being positive. To disprove that allegation, I propose to begin by highlighting the positive aspects of the Bill.
Will the Deputy repeat that?
There are some positive aspects to the legislation.
I am resisting the temptation to break into spontaneous applause.
Perhaps Deputy Boyd Barrett was drinking.
I was not, although sometimes this place would drive you to the drink.
In that case the Deputy will welcome the provisions relating to the sale of intoxicating liquor.
The provision whereby those who sell alcohol will be held to some degree of responsibility for the consequences of its sale is certainly one of the welcome aspects of the Bill. The introduction of a code of practice and the proposal to review licences where there is irresponsible behaviour on the part of sellers are welcome changes. I equally welcome proposals to impose some type of code of practice on the advertising of alcohol. It is sickening that large multinational companies in particular bombard the public with alcohol advertising conveying the message that their product will solve all of life's problems. There should be restrictions in that area. I also welcome the proposals to enhance equality legislation.
However, I have concerns regarding some aspects of the Bill, particularly the proposal on the provision of legal advice to victims of human trafficking. This crime is one of the most vile examples of a society that needs to do something about its priorities. The commodification and enslavement of human beings, particularly vulnerable women, and their sexuality for the purpose of trade is a horror that must be dealt with urgently. The proposal to extend the provision of legal advice to victims of human trafficking is minimalist and seems only to be included in order to bring us into line with demands from European and international bodies. It is a case of doing the least possible required.
As other Deputies have said, and as organisations dealing with the victims of human trafficking and the sex trade have proposed, we must go further on this issue. The tiny number of prosecutions in this area clearly shows there is a problem in that the victims of these crimes are not coming forward because of a fear of the consequences. If we want to give confidence to women in this situation we must show a seriousness about offering them support. This means, at a minimum, giving them legal representation and not just legal advice, whatever that might involve. In addition, some of our very draconian immigration legislation is part of the problem. It is so weighted towards getting people out of the country as quickly as possible without giving them a fair hearing that genuine victims of the horrible phenomenon of sex trafficking will be discouraged and fearful of what is likely to happen to them if they speak up about their plight. The very least this Bill should do is afford legal representation to people in that situation.
I am broadly supportive of the proposed amendments to equality legislation. However, I am concerned that the proposal that certain types of submissions be dealt with in writing only may have adverse implications for employees. This amendment is being put forward on the basis of improving efficiency, but there is also reference to reducing expenditure. My concern is that this is merely a cost-cutting measure which will lessen the opportunity for people who are being treated unfairly by their employer to make their case to the Equality Tribunal. In other words, it is a way of fast-tracking complaints through the system. I hope that is not the case, but it looks like it might be.
On the bankruptcy issue, there is a need for legislative change in this area, but we also need to distinguish between different categories of people who find themselves bankrupt or insolvent. As for those whose greed got them into massive financial difficulty as well as the country into massive financial problems, I have no interest in allowing them to walk away from their responsibilities. However, people who find that they are unable to meet their mortgage repayments or to keep their small businesses going and face bankruptcy as a result — and many ordinary people find themselves in that situation — must be given a break. The measures must be focused on the circumstances of homeowners and small businesses who find themselves in difficult circumstances in the current economic situation. The big fish seem to be able always to get away with things. If anything we should take measures to get some of their wealth from them and their wives.
I am delighted to speak on the Civil Law (Miscellaneous Provisions) Bill 2011. I support many of its provisions, especially Part 3, which deals with the deeds of good samaritans. It is very important to distinguish between the actions of the good samaritans and facilitate those acts of kindness and bravery. It can be a grey area. The provisions of the Bill in this Part are good and positive.
I welcome also the provisions to improve the efficiency and effectiveness of private security services. That is badly needed and I welcome the provisions.
Reform of the bankruptcy laws is long overdue. I share some of the views expressed by my colleague, Deputy Boyd Barrett, but I would not agree that every businessman was greedy. I would say fewer than 100 people, among bankers and developers, were responsible for the greed and speculation, and they certainly need to be dealt with. We must change the bankruptcy laws to allow for entrepreneurs, people with small businesses, sole traders and landowners who tried to better themselves and better the country while doing so. We must change the legislation to allow them to survive and live out their lives in happiness, not in fear. Unlike the majority of European states, our laws do not provide access to an adequate and effective personal insolvency system. That is the problem. I welcome the provisions in the Bill that deal with the Irish Property Council as well. People who had a good relationship with their banks, now, having fallen behind in their repayments, are being harassed and driven to their wits end. Many are ending up severely depressed and restricted from ever again being an investor. A good number of such people whom I know in my constituency have taken their own lives. How much torture can lead to such a sad outcome?
I welcome also the provisions dealing with human trafficking. It is very important that we deal with this issue. Part 5 deals with intoxicating liquor and these provisions are badly needed. Anybody who sells intoxicating liquor must be aware of their responsibilities.
I totally object to the amendment of the Official Languages Act 2003. This is a sneaky way of the Government making a provision that this Bill will not be translated into Irish on its enactment because it wants to pass it in a rush. Our official language is An Ghaeilge. It is a retrograde step. Is uafásach an rud é sin a dhéanamh. I object to this totally. We have fought hard for our language and succeeded in having it recognised as an official language of the European Union. Here we are throwing it out, throwing out the baby with the bath water. We need to be careful.
I respect the work that coroners do. I have no issue with them, but with the ambience and surrounding where the coroners conduct their inquests. Inquests should be moved from the court setting. It is sad for people who have lost a loved one in an accident or a sudden death trauma or even worse, if it is a violent death, to go to a courthouse. We can rent hotels up and down the country to act as courthouses, when the courthouses are unfit for use. An inquest should not be held in the setting of a court, with a judge and jury. The inquest must be conducted in a building where compassion is shown for the relatives of the deceased. It should be conducted in a suitable environment, where people's feelings are considered. People may be threatened or intimidated by a court setting. I am not saying they should be, but they are. I have been there and I understand where the families of the deceased are coming from.
I see a reference to the county registrars. That is timely, but it does not go far enough. In south Tipperary, the county registrar is a law unto himself. I tabled six parliamentary questions to find out where the voting machines were stored — the voting machines that were purchased at enormous cost and had to be stored when not in use. I questioned how the procurement of space to store them was conducted, and where they were stored. It was a complete and utter sham and I found out they were stored in the property of the county registrar's family, which is outrageous. This contract was not put out to public tender. On tabling a third parliamentary question, the machines were moved from Clonmel to Gormanstown in County Meath. This was an outrageous abuse of public funds. In response to one question, I was told that it was advertised in a proper manner, but there was no advertisement for storage space. This type of carry on must be rooted out. In was also a significant issue in County Waterford, where a property was rented on a long-term lease to house the machines.
I welcome many of the provisions of the Bill, but I object totally to the provisions in respect of the Irish language. Is mór an trua an rud sin.
I understand that Deputy Seán Kyne is sharing his time and each has five minutes.
I welcome the introduction of the Civil Law (Miscellaneous Provisions) Bill. I commend the Minister for Justice and Equality, Deputy Shatter, and the Minister of State in his Department for the work done. The Bill comprises 15 Parts and this reflects a great deal of hard work and late nights on their part and that of their staff to bring it to the Chamber. I will not touch on all areas, but will concentrate on a few areas.
I welcome the expansion of the Civil Legal Aid Act to enable advice to be given to victims of human trafficking. I agree with the comments by Deputy Boyd Barrett on the horrors of the whole area of human trafficking. I am not sure if Deputies have seen the film "Taken" starring Liam Neeson, where his daughter while on a trip to Europe was kidnapped and trafficked. She was drugged up and subjected to horrors that one would not think about until one sees them graphically portrayed in a film like that. That shows what could happen in the modern day world. I have concerns that the word "advice" would be too narrow and hope that "advice" would also include legal representation, which is particularly important for such a vulnerable person, the victim of such an abhorrent crime. Will the Minister clarify that at some stage in closing?
I welcome the reforms of the Bankruptcy Act 1998, which are long overdue. The automatic discharging of the bankruptcy order after 12 years is welcome as is the new mechanism which can enable the discharge of a bankruptcy order after five years if the courts deem it reasonable and proper to do so. However, in spite of the welcome reforms, I am concerned that further serious reform is due to help create a new debt settlement system which will help all citizens and not just the wealthy. As I speak tens of thousands of our citizens are in what can be described as a hopeless situation with unmanageable mortgages on homes that are in deep negative equity. These citizens will be the first to admit that they freely accepted mortgages which with the benefit of hindsight we now know were unsustainable in the long-term and were the result in many cases of irresponsible lending. It is obviously in nobody's interests and certainly not in the interests of society as a whole for citizens to remain in these hopeless situations with the negative effects on health, relationships and family life that debt brings. Reform must be introduced for those who cannot pay debts but not for those who will not pay their debts. I welcome the direction the Government is taking in its willingness to grasp the nettle and introduce reforms in the area of debt. As with this Bill, I hope the Bill on reforming our personal debt system will be introduced ahead of time. Today, Fianna Fáil called for the establishment of a debt enforcement office. I agree wholeheartedly with it as this will remove the emotive and personal issues of debt problems from the time-consuming and expensive setting of the courtroom. We do not want to see another quango established and we want to see the finer details of the measure. Such an office has been advocated by NGOs such as FLAC, the Free Legal Advice Centre, and the statutory Law Reform Commission, which published a comprehensive report into debt law reform last year. It is unfortunate that only now, from the Opposition benches, Fianna Fáil recognises the need for debt reform. It is ironic that the party's lethargic and arm's length approach towards proper financial regulation and governance led to so many people in Ireland having debt-related problems.
I had concerns that the spirit of the Official Languages Act, which is to safeguard and promote the use of Irish in the course of official business, was being downgraded in this Bill. I received many telephone calls and e-mails from Conradh na Gaeilge, which had concerns this measure would lead to a reduction in the status of the Official Languages Act. We went to the trouble of having Irish recognised as an official language of the EU through our Irish MEPs. I sought clarification on the issue. When the President signs the Bill into law, it becomes an Act. There is a backlog in the translation of these Acts and the change in the Civil Law (Miscellaneous Provisions) Bill will allow for the publication of the English-language version of the Act online. The hard copy in both languages will be published in due course. It is tidying up the situation whereby people do not have hard copies of Acts in court because the Act has not been published due to this anomaly in the Official Languages Act. I am glad this is clarified by the Bill.
I welcome Deputy Catherine Murphy as the sole Member of the Opposition in the Chamber. On many occasions, Deputy Wallace remarked on the fact that there were no Deputies from the Government side or from some of the Opposition parties in the Chamber. I welcome this Bill. I will speak on the good samaritan section and the changes to the Bankruptcy Act 1988.
I compliment Deputy Billy Timmins on initiating this legislation a number of years ago. His Bill did not get through the Dáil but, thanks to his hard work, we have a measure before us. Defibrillators are an important part of sporting and recreational facilities around the country. There is a worry in the sporting fraternity that those who were not trained but who are at the site may not be allowed to use them to aid someone in difficulty. There are clear instructions on defibrillators. The Minister might consider this point before tabling amendments.
There should also be notification in clubs and recreational facilities about volunteers and what is an act of a good samaritan. The problem with this Bill and most legislation is that it does not use language we can all understand. One sentence in the Bill contains 75 words. I read to the end of the sentence and I had to go back to the start to understand it. Perhaps the Minister can examine simplifying the wording so that people can understand it. Notification should be displayed in clubs so that people know what they are eligible to do.
I welcome the modification of the Bankruptcy Act with a tinge of regret. Some 17 people were declared bankrupt in 2009 and 19 up to September 2010 yet, across the Border in Northern Ireland, in excess of 1,200 people were declared bankrupt. The difference between the two jurisdictions is the cost factor in going into bankruptcy. I speak for small businesses and those who suffered as a knock-on effect of not being paid. I refer to small contractors, small shopkeepers and householders. It is not economic for them to go into bankruptcy and MABS advises them not to do so.
The second factor is the time period for the discharge of bankruptcy. In the UK, one can be discharged from bankruptcy within 12 months. In Ireland, it is five years if one is a good boy and follows everything. Otherwise, it can increase to 12 years. This measure may bring us into line with what our neighbours on this island are doing. In the United States, under chapter 7 legislation, those who use the provisions of chapter 7 legislation are not allowed to go into bankruptcy for another six years. If we reduced the period to 12 months, 18 months or two years, we could include a stipulation that people cannot go into bankruptcy for a set period. I will not deliberate on other measures contained in this Bill. I hope the Minister will consider some of my comments this evening.
I welcome the opportunity to speak on the Civil Law (Miscellaneous Provisions) Bill, a comprehensive Bill containing many important provisions in a diverse number of areas. I make reference to the amendments the Bill makes in the area of civil liability for good samaritans and volunteers, which I welcome. However, we need clarification on the definitions of the actions that qualify as those of a good samaritan. The Bill requires that a person must be in serious and imminent danger or apparently in serious and imminent danger. Is this a subjective or an objective test? In the interest of fairness for the good samaritan, the test must be subjective. A situation that does not present a serious, imminent or apparently serious and imminent threat, could quickly change into one that does. Hence, the test should be that the good samaritan believes the threat to be serious and imminent or one that could quickly escalate into being serious and imminent. A possible flaw in the Bill is that it does not impose an obligation to provide reasonable assistance at the scene of an accident. There is no other provision in Irish law to require a person to come to the aid of another stranger. This Bill provides the opportunity to debate the introduction of some form of legal duty to assist, similar to that in many jurisdictions.
Part 5 of the Act concerns intoxicating liquor and codes of conduct. While the section is broadly welcome, I ask the Minister to publish and endorse a single code of conduct so that all people involved in the sale and supply of alcohol know the rules and where they stand. The last thing the industry needs is a variety of codes for display, sale, supply, advertising, promotion and marketing of alcohol being published by different organisations. This will lead only to confusion and people in the industry need to know their obligations under the code.
Part 7 of the Bill, concerning the amendments to the Bankruptcy Act 1998, is most welcome. I welcome the fact that legislation reduces the period under which a person can apply to the courts to be discharged from bankruptcy from 12 years to five years. As alluded to by Deputy Lawlor, this remains a long period by international standards. I see no reason it cannot be reduced further. I look forward to the publication next year of the personal insolvency Bill.
Part 8 concerns the maintenance of spouses and children. It is important that people live up to their responsibilities in respect of maintenance payments where orders are made. It is essential that a strong message is sent out that an unwillingness to pay should be discouraged by the threat of being found in contempt of court and the resultant possibility of imprisonment. The courts need a strong sanction in order to force people to live up to their responsibilities to their families. The Bill makes an important distinction between those who cannot pay and those who will not pay. The amendment of the Land and Conveyancing Law Reform Act 2009 is to be greatly welcomed. Without this amendment, the flaw in the Act is that after 1 December 2012 major difficulties would be caused to many homeowners and landowners across the country.
Without the registered rights of way allowing access to their homes, their properties will be effectively worthless in future. The requirement to seek court orders to enable registration of uncontested easements and profits à prendre was an unnecessary financial burden on home owners in these recessionary times and, therefore, I welcome this change.
I welcome the provisions included in the Bill to strengthen the various laws and make them more effective. I thank the Minister, Deputy Shatter, the Minister of State, Deputy Lynch, and their staff for the excellent work they have done in bringing the Bill before the House in advance of the Dáil recess.
I wish to address the amendments on human trafficking, good samaritans, volunteers and domestic violence. Human trafficking is a lucrative criminal activity now rivalling the drugs trade. It is criminalised under the Criminal Law (Human Trafficking) Act 2008 carrying penalties up to life imprisonment. It is a crime which does not feature often in headlines but it is a crime of which we as a society must be aware and be vigilant to combat. It is modern slavery and it is on the increase. Human trafficking is rooted in equality and social marginalisation. Its victims are exploited for sexual, labour and organ removal reasons. Sadly, an increasing number of migrant women need help to escape the stranglehold of criminals.
I welcome the fact that the Garda Síochána has identified trafficking of human beings as a priority in its annual policing plan, with the Garda National Immigration Bureau specialising in this area. Its work in identifying individuals to the Legal Aid Board as potential victims means that no means test or financial contribution is required by the alleged victim. I seek clarification on that as there appears to be some distinction between advice and taking cases to court.
The Legal Aid Board does excellent work and provides solicitors who have received specific training in human trafficking issues. The Legal Aid Board now having this statutory backing means it can provide legal advice all through the criminal justice process to alleged victims of human trafficking in regard to trafficking or any other offence. That will ensure that victims will now be fully protected and advised on their role as a witness. That is as it should be as many are reluctant and frightened about the repercussions in coming forward as witnesses against criminals.
The proposal will also support the Council of Europe Convention on Action against Trafficking in Human Beings and a UN protocol on trafficking in persons, especially of women and children. Ireland is also a member of the European G6 human trafficking initiative together with the United Kingdom, Poland, Italy, Spain and the Netherlands. The aim is that the EU will become an impossible place for criminals to engage in the trafficking of human beings.
I welcome the Part of the Bill dealing with the civil liability of good samaritans and volunteers, which implements recommendations of the Law Reform Commission on the civil liability of good samaritans and volunteers. We have a wonderful tradition of volunteering and community spirit and to have good samaritans hesitate to act in good faith to provide assistance in an accident or emergency owing to the fear of litigation at a later date is unthinkable. That this provision will protect good samaritans from liability is an excellent element of the Bill.
The strengthening of the Domestic Violence Act 1996 is to enable a safety order to be applied to obtain full protection of the law against the other parent of the children in cases where people who may never have had an active role in their family's life can turn up at any time and intimidate a family. I know anecdotally of circumstances where parents turn up from other countries not having had any involvement in their families' lives and proceed to intimidate them. I welcome this part of the Bill and the fact that the protections are extended to opposite sex and same sex couples.
I reiterate the point made by many speakers about the Irish language translation. I am aware some assurance has been given in that regard but as with civil liberties, for example, an issue like the Irish language is not something that would disappear overnight but would get chipped away at, so to speak. It is important that we are vigilant in that regard. I am not a speaker of Irish but I made the investment in my children going to an all-Irish school and therefore I would be supportive of the use of the language in as many applications as possible.
This is certainly a miscellaneous provisions Bill. It is a dolly mixture of many different issues, some of which I would support. I thank the Library and Research Service for its good work on the explanatory booklet, which is very helpful.
On the good samaritan section, the way it is described tends to focus on people who come across an accident, but something people often complain and feel aggrieved about is in cases of an attack where people stand by and do not intervene. Is it intended to give some comfort or protection to people in that category because it is a very unfortunate feature of today's society that people do not intervene? Such a measure would encourage them to do that. People who have been attacked often feel doubly aggrieved if there were many people around them but there was no intervention.
The Bill refers to the reduction in the number of people who volunteer from 33% in 1999 to 17% in 2006. That figure will alter again because we are recapturing some of today's better values. There are some encouraging signs in regard to people getting involved in activities in that many have more time on their hands than they would wish.
I would like to see training in first aid provided in schools because when people intervene, they can sometimes do more harm than good, especially in circumstances where victims are moved and so on. Some basic training would be very useful and might be something from which we would benefit.
This document refers to the duty of care being silent and does not determine what is meant by it but, instead, says the courts will be relied upon on a case-by-case basis. I am not sure if that is a good idea. We are better off defining aspects because too often the courts have ruled that a matter has not been legislated for, and I would be concerned about that.
The other aspect in regard to this category is about the protection for health care professionals. I have come across situations where a doctor has not attended but has advised people, in the case of an accident, to ring for an ambulance because they did not feel the necessary protections were in place. I would like to see that specific area protected because those situations arise and very often they can be important in terms of the time involved in responding, particularly to road traffic accidents.
On the area of human trafficking, the Free Legal Advice Centres, FLAC, has been supportive but it has also been critical in terms of the Bill not going far enough. I would endorse some of the criticisms it makes in that where legal advice is available, the only legal representation available is where the person is being questioned on their own past sexual history. The representation should be extended far beyond that.
On the intoxicating liquor aspect, the Bill states that the Minister may but is not obliged to seek submissions. I would like to see that provision strengthened where there is an absolute requirement to do that. It is always useful to get input from as wide a variety of people as possible.
Regarding the area of bankruptcy, I am disappointed that we are not seeing more people coming forward earlier in regard to the very good work of the Law Reform Commission in dealing with personal debt management. I took the trouble to read the extensive document in recent months and some very good work is being done that could be put into legislation fairly quickly.
Many people are in serious trouble owing to personal indebtedness. The Bill deals with bankruptcy and there are some welcome provisions in that regard. I would like to see them extended further, however. A timeline of three years rather than five would be more appropriate. I welcome the extension of the time in which one can offload assets and escape liabilities as a consequence.
Does the furnishing of a passport or equivalent document apply in the case of people seeking refugee status? Very often people arrive in the country who are fleeing for their lives. While I understand there must be certainty over people not destroying documents before they arrive here, exceptions must be borne in mind. The Bill may present a difficulty in this regard.
With regard to non-compliance with orders for maintenance, the penalty established in the Bill really fits the crime. I have been asked for advice on this matter in many houses. It is mostly women who go through hearing after hearing in the courts to obtain a final decision on the paying of maintenance, only to find that the maintenance obligations set out are not met. They must then return to the courts and they end up with large legal bills. In some cases, they just give up. We all have experience of these cases. It is essential that there be a penalty to modify behaviour. One cannot ask that the father of the child be declared and at the same time not impose an adequate sanction if maintenance is not paid. The Bill represents a positive step in this regard.
This is very much a "miscellaneous provisions" Bill; it is best described using that term. If anybody asks me what a miscellaneous provisions Bill is, I will give him a copy of this one.
I welcome the opportunity to speak on this Bill. It is a wide-ranging civil law Bill. I want to concentrate in my comments on amendments to the Official Languages Act 2003, the Civil Legal Aid Act 1995, the Immigration Act 2004 and the intoxicating liquor Acts.
The recognition of the Irish language is vital for our State and people. The amendment to the Official Languages Act that proposes to allow legislation not to be published simultaneously in both official languages seriously undermines the status of our native language. I am reminded of the long campaign that was supported by this House to have the Irish language recognised as an official language of the European Union, yet we now see the Government undermining this with the proposed amendment. When this is allied to the proposals of Fine Gael to remove Irish as a compulsory subject for the leaving certificate, as highlighted during the election campaign, it does not bode well for the future of the Irish language and efforts to support its growth.
I appeal to the Minister to remove the proposed amendment for the following reasons. The programme for Government promises a review of the Official Languages Act 2003. No changes to the Act should be made before that review and the inclusion of stakeholders in the process. A second translation department was set up in 2009. The two translation departments should be reorganised to translate the Acts in an acceptable timeframe for the work of the Oireachtas. The amendment, if made, will lead to a reduction in the status of Irish.
I welcome the changes proposed to provide legal advice to the victims of human trafficking, who are mainly women, but I do not think they go far enough. The European Council has said that human trafficking is "a phenomenon [that] has hit unprecedented levels, to the extent that it can be considered a new form of slavery". According to a report by the Immigrant Council of Ireland, between January 2007 and September 2008, 102 women were identified by ten services as having been trafficked into or through Ireland. These women were aware of a further 64 women who were trafficked into Ireland.
The provisions only provide for legal advice to victims in regard to possible court appearances associated with criminal procedures. The women should be provided with free advice in regard to all their legal requirements associated with being in the State. They are here through no fault of their own, have gone through an extremely traumatic experience and should have the full assistance of the State, be it with immigration matters or the provision of advice. I appeal to the Minister to give this matter serious consideration.
There is no doubt that section 12 of the Immigration Act needs to be amended. It is a pity we had to be forced to do so by the courts. Such a section should not have been allowed into the legislation at all. This very broad provision meant that any non-Irish national, or anyone whom a Garda or immigration officer believed to be a non-Irish national, had to produce appropriate identification on demand, without any explanation, or face possible prosecution. The number of prosecutions under section 12 rose from three in 2005 to 291 in 2008.
The courts have recognised that the State has a right and duty to impose immigration controls, and that these controls may include measures which are harsher than those imposed on nationals. However, any law that criminalises actions must be clear and certain. Section 12 certainly is not clear. Under the new provisions, it will still be a requirement that a non-national produce a valid passport or equivalent document on demand, but the Bill qualifies the meaning of "on demand". The demand must be made by the Minister, an immigration officer or a member of An Garda Síochána, and it must be made for a particular purpose, that is, to establish the person is not in the State in contravention of the Immigration Act. The operation of this amended section needs to be monitored closely to ensure it is not abused and people are not unduly penalised. Although there is a defence provided for in the legislation for not complying with the demand, will it only be in the courts that a person can have this defence taken into account?
I would like to comment on the Bill's codes of practice for the sale of alcohol. The focus of comments seems to have been mainly on the sale of alcohol in public houses. I ask the Minister to focus also on the sale of alcohol in supermarkets. It seems we are moving very quickly to circumstances in which the majority of alcohol will be sold through supermarkets. I ask the Minister to use the codes of practice to ban below-cost selling of alcohol in supermarkets, which practice is leading to there being alcohol on demand in society.
I am glad to have an opportunity to speak on this legislation, which I regard as extremely important. I compliment the Minister on bringing it before the House. The only point that worries me is that it affects many facets of our lives. It spreads the net very broadly in terms of the application of the law. It contains many improvements, such as the good samaritan provision, the provision of legal advice to victims of human trafficking, the codes pertaining to intoxicating liquor, which were mentioned by other Members, and measures on bankruptcy.
I welcome the proposals on the good samaritan. Will the Minister refer in his reply to the question of proximity and the degree to which a good samaritan can, in good faith, attempt to offer assistance in an emergency given that he or she may find out later that somebody else may adjudicate on whether he or she should have offered assistance at the time in question? Reference was made to the degree of competence of the good samaritan. The Bill will insert section 51D to the Civil Liability Act 1961, under which there must be close proximity between the apprehended injury and the intervention. In other words, if a person is in serious and imminent danger of loss of life or worse injury then an intervention should take place for which somebody would be covered under the Act. However, I ask the Minister to clarify in his reply the situation whereby a person does not have an adequate level of competence to be able to make a determination as to what is imminent and serious.
We all know the old story of the well-meaning and well-intentioned person who offers assistance at a roadside crash. There may be imminent tragic circumstances such as a danger of the vehicle going on fire with obvious consequences. However, if this is not the case and a serious back or neck injury ensues after a person who is not qualified attempts to offer assistance, to what extent will this person be covered? I ask the Minister to make reference to this.
The Bill does not address the question of whether a duty of care exists in any particular circumstances. It is silent on what categories of intervention would attract a duty of care. Must a good samaritan intervening in a particular situation make a commitment to continue in attendance at whatever cost? There may be other imminent and pressing dangers. These issues need to be brought into focus. I note the Law Reform Commission has made a number of recommendations in this area.
Reference has been made to human trafficking. We all know of cases where there has been clear evidence of trafficking of children and teenagers. Unfortunately, ample evidence exists of many such people having gone missing in this jurisdiction but no evidence exists of where they ended up. This is sad and I hope the provisions in this Bill will deal with this. The Bill also makes reference to the harvesting of organs and all that goes with it.
I have two views on bankruptcy. In many cases, bankruptcy is harsh and may unnecessarily inflict huge penalties on a person doing his or her best trying to remain solvent, to discharge his or her debts and to be of good behaviour in this regard. Others have made it a badge of honour to avoid their responsibilities and every possible opportunity of discharging their financial responsibilities. They will use every loophole possible available to them and sometimes the law appears to assist them.
Will the Minister give an indication on the case of a householder with a liability of €500,000 who discharges €400,000 but is then put into bankruptcy because he or she has not discharged the remainder? I dealt with a case of this nature in the very recent past. This is unfair. In the case with which I am familiar, it was unfair of the financial institution to proceed in this fashion. It took mean advantage of the situation and has unnecessarily penalised the unfortunate person, who will be forced to remain out of business. Even the length of time envisaged in the Bill would be too great a penalty in this case.
The provisions in the Bill on the enforcement of maintenance orders are a good idea. It is important also to recognise that in the present economic climate it is difficult to enforce maintenance orders because the person against whom the order is about to be made may well be unemployed and may have the entitlement of a single person receiving a social welfare payment or a basic payment. The possibility of putting the person in prison until payment is made is not a worthwhile proposition. In all the cases which I have dealt with over the years one would tend to be cautious when asking people who have limited means to go through legal channels to enforce maintenance orders. Agreement between the couple, if possible, is a better option.
The proposals on the requirement for immigrants to have identification papers or passports is a good idea. However, people have arrived on our shores with no identification whatsoever. Perhaps their families have been summarily executed; this is not the normal situation but it has happened. I am sure everyone in the House has come across cases where a person was the only remaining living member of a family, because the rest of the family was murdered or slaughtered or however you want to phrase it. Will the Minister dwell on this for an instant to determine what type of identification papers might be acceptable in such cases?
I am most concerned about easements. For those of us who, for our many sins, live in rural Ireland the definitions of a right of way, an easement, or a liability accruing therefrom can raise the temperature very considerably. I have dealt with cases on this, as I am sure has everyone else in the House. It is the easiest thing in the world for a person who has no entitlement to anything on somebody else's property to pretend he or she has and to proceed to register an entitlement or an implied entitlement over a long period of time. I have very little respect for people who spend their time eyeing up other people's property with a view to getting a share of it or an entitlement to part of it or to being compensated in order to relinquish part of an alleged entitlement as a result of their clever manoeuvring of the system over a period of time. I realise fully that what is proposed is to ease the system to be more amenable to e-registration. Will the Minister respond to this?
I am concerned about the e-system. Some weekends each of us receives 500 or 600 e-mails. I often ask myself what people do in their spare time if they have the time to write 600 or 700 e-mails.
It is only starting.
People devote themselves to a particular subject such as registering an entitlement, easement or potential burden on someone else's house or garden, something previously deemed to be a public property or an unregistered property — a distinction is made between registered and unregistered property. Given the cases that have gone through the courts, I would have thought this area is open to a great deal of argument in the courts — very expensive argument I might add and this is no reflection on the legal eagles who would participate in such an argument.
I question the wisdom of making it overly simple for somebody to register his or her interest in another person's property. Some account should be taken of the manner in which such an event occurs. If enough people were so interested in other people's property the famous old rural Irish tradition of a legacy from the United States would become non-existent because somebody would have eyed up the property beforehand, identified the fact that nobody was immediately around and that there was the potential for somebody to register an interest in such a way as to argue he or she had an entitlement to it knowing full well he or she had no entitlement whatsoever. I have serious concerns about the degree to which this intended improvement in the legislation might be abused. As an experienced legal practitioner, the Minister will be aware of the many hotly contested cases which have been thrashed out in the courts on the basis of a perceived or acquired entitlement to another person's property. For example, in my constituency if a person has obtained sand or gravel from his neighbour's gravel pit, it could easily transpire that he has acquired an entitlement thereafter because he has established a use. I ask the Minister to indicate how such matters will be thrashed out.
The Bill proposes beneficial improvements in the area of domestic violence. All Deputies will have encountered cases of individuals failing to observe protection orders and barring orders and being held in contempt of court. Incidentally, I was almost invited to be in contempt of court in a particular case some time ago. I attended court at the request of the defendant when evidence without basis in fact was proffered. The wise judge was not prepared to accept it, however. While one cannot legislate for such circumstances, the fact remains that in such circumstances individuals may be disadvantaged and incur significant expenditure extricating themselves from the position in which they find themselves.
I note the number of convictions for failure to produce identification increased from three in 2005 to 144 in 2006, 250 in 2007 and 291 in 2008. This is a substantial evolution, for want of a better description, of the application of the law. The majority of such convictions arise from immigration matters. For example, some people deliberately go AWOL because they have been refused refugee status, while others are re-circulated so many times within the system they no longer know whether they are in or out of the jurisdiction. I am concerned by the dramatic rise in only four years in the number of convictions secured for failure to produce identification.
I discussed burdens, easements and rights of way. The right of an individual to register a burden on another person's property requires the production of significant supporting information. I would not agree to the establishment of such a right unless it was clear that the person on whose property the burden would be placed would not have his or her rights undermined as a result of a clever connivance made over a number of years by an individual who had a precise plan to register such a burden.
I thank Deputies on all sides who have contributed to the debate. As I stated, I appreciate the Bill is wide-ranging, genuinely miscellaneous in the context of the number of areas it covers and ranges across provisions in 40 different statutes. I also appreciate the welcome given by Deputies on all sides to a variety of the provisions contained in the Bill. I also express appreciation for the co-operation we have received from the Opposition in being able to order Committee Stage relatively quickly so as to facilitate enactment of the legislation before the summer recess. This will be of particular assistance to a number of people, which is welcome. This is the type of legislation that we can deal with in this way.
I will do my best to respond to many of the comments that have been made. If I do not deal with some, I hope I will be forgiven because we will have an opportunity to deal with them more specifically on a section basis on Committee Stage. I will try as best I can to cover the broad range of issues that have been raised. At an early stage in the debate, Deputies Calleary and O'Brien raised issues arising out of representations they have received from the Irish Heart Foundation. Various Deputies raised issues with regard to work undertaken by an individual as a good samaritan who intervenes in an emergency, as prescribed by the legislation, or work undertaken by a volunteer acting under the aegis of a voluntary organisation. The Irish Heart Foundation has been in contact with my Department in the development of the provisions of the Bill dealing with volunteers and voluntary organisations. Its views have been taken into account and regard has also been taken of the report of the Law Reform Commission and the advice of the Attorney General and Parliamentary Counsel.
The further suggestions of the Irish Heart Foundation have been studied in my Department and were taken seriously. However, it is my view that the provisions in Part 3 with regard to the various definitions in question are sufficient and provide all of the various protections that are required in dealing with volunteers acting on behalf of an organisation such as the Irish Heart Foundation. It was of assistance and valuable that the foundation engaged with us. I give this assurance because I appreciate its concerns are genuine and come from a body that does important and valuable work and with which many people over the years have been engaged.
In the context of the general provisions relating to good samaritans, they are concerned with an individual who intervenes in what is described essentially as an emergency. This is where an event occurs and an individual, without any expectation of payment or reward, comes to the help of another individual. Some Deputies asked how one would know what expertise a good samaritan possesses. People may intervene to be of assistance to others in a broad range of circumstances. It may well be that a medical emergency arises and a qualified medical practitioner appears on the scene, intervenes and is of help. Equally, someone could have an accident or there could be a medical emergency and there may not be anyone nearby who has any qualifications and an ordinary, unqualified individual may try to be of assistance to someone who has been the victim of a car crash, has had a fall and broken a leg or has suddenly taken ill, for example, on a beach or golf course. Where someone in good faith seeks to intervene to be of assistance, essentially the legislation states that he or she will not be held liable in negligence. However, where someone intervenes in bad faith, for example, a person, knowing that he does not have a particular expertise attempts to do something of which he has absolutely no knowledge and does not know if he will be of any help to anyone, that person could be regarded as having intervened in circumstances in which he or she is being grossly negligent, knowing that he or she is going well beyond his or her competence to the extent that what he or she does may pose a danger to an individual. Whether someone has intervened in good or bad faith or is grossly negligent or merely ordinarily negligent, that is, where something goes wrong, although the person acts in good faith, are issues about which one cannot be absolutely exact. The courts have detailed the concept of negligence and differentiated it from gross negligence.
The recommendations and prescriptions of the Law Reform Commission in these areas were taken on board, together with the advice of the Attorney General, in drafting the Bill. Some of these issues are analysed in detail in the commission's report. The formula we have, dealing with matters that could be of concern when someone intervenes as a good samaritan or is engaged as a volunteer for an organisation, follows the recommendations received. The changes in the legislation should provide a degree of protection and comfort for individuals that is not provided by the current law and that I hope will be seen as particularly valuable.
A number of Deputies raised the issue of the licensing laws and liquor legislation. It is important that individuals drink responsibly, as those who have licences to sell alcohol, whether to be consumed on or off premises, should behave responsibly. On occasion, we may talk too much about those who sell alcohol and not enough about those who consume it. It is important that those who consume alcohol do so responsibly and take responsibility for their own actions. We are all thinking human beings. There are circumstances where people drink excessively, are not addicted and know they are drinking excessively. We cannot always blame the supermarket where alcohol was purchased for the foolish and unwise behaviour of individuals. We must take personal responsibility for our actions.
It is important that the licensed trade operates responsibly. There is and has been during the years a problem with alcohol being sold at a loss by retail outlets to attract custom. That can make alcohol more readily affordable and attract young people into acquiring more alcohol than they might normally do. It is important that outlets behave in a responsible manner.
Breaches of the guidelines envisaged in the legislation will not result in criminal prosecution. However, following the guidelines being put in place, if someone sells alcohol in a manner contrary to them and gives rise to problems, their failure to comply with them can be used to oppose their being granted a licence in the District Court. This will be an additional weapon for communities where a public house or an off-licence is being run irresponsibly and in the armoury of the Garda in raising issues in the annual licensing courts as to whether it is appropriate to renew a licence.
Deputy Calleary referred to the bankruptcy provisions, while other Deputies referred to them in different ways, some supportive and some critical. The Bill's provisions in the area of bankruptcy are interim arrangements. They are a small step along the road to introducing reform. A detailed insolvency Bill is being prepared in my Department. It will provide new mechanisms for dealing with insolvency and allow for insolvency issues to be addressed within structures outside the court system in a less expensive way. It will also prescribe a range of new rules. The Bill takes the first interim step in bringing about reform to allow bankruptcies in place for more than 12 years to be terminated and the office which deals with bankruptcies to write off the legacy issues that need to be dealt with before the new legislation is in place. I welcome the reactions of Deputies Calleary and O'Brien who were largely supportive of what we were doing.
In the Seanad and my Department we had a debate on whether the rule allowing bankruptcies to end at 12 years should be brought down to three or five years. There is no magic number. Deputy Durkan and others also touched on this issue. There is a range of problems in dealing with bankruptcy. There are individuals who have led responsible lives who, through no fault of their own, find themselves in substantial financial difficulty. This may be as a consequence of the reckless trading of someone else. I could be running a small business in a decent and responsible way and doing business with another firm for years and allowing it credit. In years gone by my bills might have been paid and over a period of time I might have allowed the credit made available to mount up. If the other business which is being run, perhaps, recklessly goes bankrupt, my debts will not be paid and my business will go to the wall as a consequence. I may be entirely innocent in the whole affair but could find myself facing bankruptcy in circumstances where I am a personal trader, not a limited liability company.
That is a profile of two bankruptcies. There is the innocent trader whose life is being brought to ruin and the reckless business for which that trader provided a product. The reckless owner may have drawn too much money from his business, bought expensive cars he could not afford and gone on expensive holidays, while the owner of the other business led a modest life. We must strike a balance within our bankruptcy laws where we do not reward those who trade recklessly and destroy other people's lives, while finding a mechanism to facilitate those who, through no fault of their own, find themselves facing bankruptcy to get out of that state, rebuild their lives and have the possibility of borrowing money and starting up businesses.
We decided on the five year rule to see how it would work. In the United Kingdom the five year period has been reduced to one year and I understand it is proving to be a problem. Difficulties are arising where people are abusing the bankruptcy laws to trade recklessly and reconstitute themselves a year later, leaving creditors in their wake who have no chance of recovering their assets. This is an initial step in this area. Under the EU-IMF agreement, we must produce comprehensive insolvency legislation by the first quarter of 2012. I am optimistic that we will manage to publish the Bill before the end of this year. I cannot guarantee this, but the work on the measure is at an advanced stage in my Department and I am hopeful we will achieve it. This Bill is an initial step. It is important that we take it, but it is not the end result to which we are heading.
It is important to keep the issue of bankruptcy in context because it is expensive to progress matters, even where people have substantial debts. There are very few bankruptcies. In 2010, despite all the economic difficulties and the many businesses and individuals that got into trouble, I am advised that a total of 27 individuals were declared bankrupt. We do not have a large number of people who find themselves bankrupt. However, we need a more balanced law. A more balanced law will achieve an important social purpose in this area.
With regard to the Coroners Acts, Deputy Calleary referred to the more comprehensive Bill that is to be published. Amendments to that are required in order that we can enact it and, hopefully, we can get that through in the autumn. The Deputy is also correct that we are working on comprehensive legislation to cover licensing laws. The legislation in that area is spread through a series of Acts. It is unnecessarily fragmented and too complex. I hope we will ultimately have a codified and reforming Bill in the House. We may not see that until after this year but work is under way.
Issues were raised by a number of Members in the context of changes in dealing with easements in what are known as profits á prendre. We can all conjure up the difficulties that arose in the well known play by a certain gentleman from Kerry, which resulted in the film, “The Field”. It is not envisaged that this reform will generate such excitement because one can only use this mechanism if there is agreement. One cannot register in circumstances in which there is contention over land that might be utilised for a purpose or over the use of some resource on that land. Where there is contention, this mechanism does not apply. It is designed to ensure that where there is no contention, one can register one’s interest in the Land Registry without incurring unnecessary legal costs and expense and without the necessity for heading down the court route. I hope that will be welcomed.
I cannot add much more to what I have said regarding the provision relating to the Irish language. The previous Government was going to insert a similar provision in the Bill it originally published. The previous Attorney General recommended that, as does the current Attorney General. It is there to resolve a difficulty. There is a timeline between when this House or the Seanad concludes Report Stage and completes the passage of legislation and the publication of the final version of a Bill. This is not about downgrading or undermining the role of the Irish language; it is simply about ensuring that when the Houses have done their business and completed the passage of a Bill, the final wording will be available electronically within a short time to Members, the public and those who may be affected by it in order that they have access to it rather than time elapsing before it becomes available. It is no more complex or mysterious than that. There is no hidden agenda in the matter and I hope this practical and pragmatic amendment, which is supported by my colleague, the Minister for Arts, Heritage and the Gaeltacht, will be supported by Members.
On the issue of human trafficking raised by Deputy O'Brien and others, the purpose of the provision is to ensure victims of human trafficking who, by their very origins, are unlikely to have any familiarity with the Irish legal system have available legal advice to them in order that they understand their circumstances and if criminal prosecutions are taken against those responsible for bringing them into the country or those who may have abused them by placing them in circumstances where they are sexually exploited, that they understand the benefits to them of co-operating with the Garda, their right to remain in this country for a period, how our criminal processes work, and what is their role and that of the prosecuting authorities and the defence lawyer.
They will be provided with a range of useful and important advice, which ensures we comply with our international obligations. The advice relates to their circumstances arising from the fact that they were trafficked to Ireland and the consequent criminal proceedings that may be taken against third parties. Witnesses in such proceedings in this State are not represented by separate groups of lawyers. If I am seriously assaulted as I leave this House this evening and criminal proceedings are taken on the recommendation of the DPP, State counsel and solicitors will be in court. A solicitor or a barrister would not represent me in court. The person who is represented in the court room is the defendant. This is the way our legal system works. It would be quite anomalous and, indeed, unnecessary to provide for separate legal representation by solicitor and counsel in the criminal trial for the victim in those circumstances. It is important that victims have access to legal advice in order that they can understand what is taking place. This is not a minimalist provision; this provision meets in full our international obligations. It is an important additional protection for the victims of human trafficking and it gives them formal statutory entitlements. It is again something I hope Members will support.
A number of Members raised the provision arising out of the recent court judgment, which will require non-nationals to produce identity documents to confirm who they are and to indicate whether they should be in the State. There is nothing exceptional about this provision. The difficulty that arose in the court proceedings was the vague nature of the legislation that applied. This legislation is more specific. In every country, there are rules about who is entitled to visit and immigration and to ensure the police force, in our case the Garda Síochána, can check the legality of the presence of individuals in the country. The necessity to do that is clearly evidenced by the fact that over the years a large number of people entered the country illegally as economic migrants and they were not validly asylum seekers nor were they here for any other purpose. It is important that we uphold our rules in this area to respect not only domestic law, but to show respect to those who come to this island from foreign parts lawfully. They respect our procedures and seek the appropriate entry visas if they are from outside the EU or from countries whose nationals are required to obtain visas and, where required, they seek the appropriate work permits. It is unfair to them that those checks do not exist.
Deputies raised other issues during the debate, not all of which I have time to deal with. The final matter I will briefly mention is imprisonment for non-payment of maintenance. There is a genuine problem in that individuals who because of sheer intransigent bloody mindedness and not financial difficulty will not support their wives and children, or, if they are not married, will not support children born to them. A number of individuals behave this way. In the absence of a sanction to compel them to make payments in circumstances where they are self-employed, they are given a free pass and there is no means of ensuring the law is upheld.
It is my view generally that we should not imprison people for debt if it can be avoided, but it is important — I will conclude on this — that a message goes out from this House that we expect those who have the financial means to do so, whether estranged spouses or simply parents of children born outside marriage, to meet their financial obligations to support their dependent children and spouses, and in particular we expect them to respect the laws of the country and the court orders made which require them to make particular payments. In the event of them defying court orders, taking no notice of what the judges say, it is essential the courts have available to them in their armoury the capacity to jail people for non-payment of maintenance. In my experience, very often the threat of that results in the recalcitrant, stubborn individual finally making the payments that he — in most cases it is a he — is obliged to make. That is why this particular change in the law to restore the position to where it was some years ago is so important.