Seanad Éireann díospóireacht -
Tuesday, 27 May 1986

Vol. 113 No. 1

Courts Bill, 1984: Committee Stage.

SECTION 1.

Mr. O'Leary

I move amendment No. 1:

In page 3, subsection (1), line 16, after "person" to insert "or company".

Senator Durcan asked me to move it on his behalf. This is to give the House an opportunity of considering the problem which the Senator thinks may arise as a result of the way section 1 is drafted. Line 16 of the proposed Bill says:

Whenever a debt is due on foot of a judgment, order or decree of a competent court by a person...to another person...

After which it is proposed to add "or a company".

The purpose of this is to try to extend the provision of the enforcement of Court Orders Act, 1926, to cover the company situation as well as the personal situation. It may well be that because of a provision of some other Act it is already covered. The purpose of this amendment is to give the Minister the opportunity of explaining to the House whether it is so covered and if it is not covered why he thinks it should not be covered.

Minister for Justice (Mr. Dukes)

The provisions of Part II of the Enforcement of Court Orders Act, 1926, among which section 15 of the Act is included, are clearly designed so as to apply to natural persons and not to companies. Section 15, both as it stands and as it is proposed to be amended by the provisions of this Bill provide for lodgment of a statement of means in which are to be specified among other things the persons for whose support the debtor is legally or morally liable. Such provisions can be said to apply meaningfully only to natural persons. The law as it stands already includes separate provisions as to the manner in which debts may be enforced against a company and for the appointment of a receiver and the liquidation of the company in necessary cases. These provisions of the law are beyond the scope of the discussion on this Bill. For those reasons the amendment is not really in place in the Bill.

Amendment, by leave, withdrawn.

An Cathaoirleach

Amendments Nos. 2 and 3 may be taken together.

Mr. O'Leary

I move amendment No. 2:

In page 4, subsection (4), line 12, after "place" to insert "and a true copy thereof shall be served on the creditor or his solicitor within the said period of time."

This is another amendment which Senator Durcan asked me to move. It relates to subsection (4) of the same section which states:

The statement of means shall, not less than one week before the sitting of the District Court at which the examination is to take place, be lodged with the District Court clerk for the District Court Area wherein the debtor's examination is to take place.

Senator Durcan and I are proposing that there should be added to that "and a true copy thereof shall be served on the creditor or his solicitor within the said period of time". This is to ensure that the creditor or his legal representative should be kept fully informed as to the statement of means which is covered by sub-section (4). In the circumstances, would the Minister explain to us whether this is necessary in view of the other provisions of the 1926 Act?

Mr. Dukes

Essentially, we are speaking here of a simplification of procedures. As was made clear to the House on Second Stage the purpose of section 1 of the Bill is to simplify the preliminary procedures for the enforcement of a judgment debt. It does this by eliminating the separate hearing that under section 15 of the Enforcement of Court Orders Act, 1926, as it stands must be held so that an order may be made for the attendance of the debtor to be examined as to his means and also to order a lodgement by him of a statement of means.

The changes proposed have been designed so as to throw no extra burden on either the debtor or the creditor and to ensure that all the existing rights and safeguards available to them are substantially preserved. That is to say that the rewriting of section 15 of the 1926 Act as proposed here is designed to preserve unchanged the existing balance that is settled by the law as between the rights of debtor and creditor. That rewriting involves a procedural change only that cannot disadvantage either party if only because the debtor has no notice of the proceedings under section 15 as it stands. Equally, he does not appear at the hearing and is not heard at the hearing. That is being dispensed with here.

I am not disposed to accept these amendments since they would throw a further burden on the debtor to the advantage of the creditor, that is, the obligation of serving a copy of his statement of means on the creditor as well as the obligation of lodging that statement with the District Court clerk.

Subsection (5) of the proposed new section would be deleted by the second of these amendments. That subsection represents the re-enactment with a minor change to provide expressly for the payment of a fee under subsection (2) of section 15 of the 1926 Act as it stands. That deletion and the replacement of the provision by the additional duties that acceptance of the second amendment would impose on the debtor would go beyond the purpose of this Bill which is to facilitate the introduction of the proposed new District Court Rules. They would involve a substantial change in the present relative position of debtor and creditor. The making of any such change goes beyond what this Bill seeks to do. In the circumstances I can clearly argue that to say that the change is a small one is not really a valid argument in this case. Were the principle to be accepted of carrying any such change in this Bill the entire code of law relating to the enforcement of judgment debts could be brought into question and amendments to it could be proposed without any limit as to scope.

In summary, the last point I make is that the proposed amendments touch on matters that go beyond the purpose of this Bill. The first of these two amendments disturbs the balance that exists now between debtor and creditor and which the simplified procedure provided for in this Bill is aimed to keep.

Mr. O'Leary

I am grateful to the Minister for his explanation in that regard. However, while obviously the Minister is not disposed to accept the amendments and it certainly would not be my intention to press them unduly, we think it is important or useful to open up a discussion in this regard. What is proposed by sections 4 and 5 is that having submitted the statement of means as mentioned in subsection (4) the creditor would not be informed as a matter of right of what is contained in the statement of means but that the creditor would only be entitled on the payment of a fee to take a copy and inspect the statement of means.

The purpose of amendments Nos. 2 and 3 is to put a positive obligation on someone to make the creditor aware of the statement of means. I would be interested to know the Minister's view on the way in which the system operates. Does it operate in the Minister's view to the benefit of the debtor or the creditor? Is it balanced too much one way or the other way? It would appear that the creditor is disadvantaged by the present system in general. I do not think we should be worried too much about imposing an additional obligation on the debtor in that regard. In addition, it is also possible that if some of the debtors were not in a position to make such a copy and to serve it on the creditor or solicitor within the period of time outlined an obligation could be put on the District Court Clerk to do that. I have no objection to a fee being charged for such an operation. The message which Senator Durcan was trying to get across in his amendments, which I support, is that the creditor from some source should be entitled as a matter of right to receive this without having to go and look for it. I think that is the principle he was trying to establish. I would like to hear the Minister's view on that.

Mr. Dukes

The situation at the moment is that where proceedings are taken to bring about this result the debtor does not receive any notice of those proceedings. He does not appear, since he has not got any notice, nor is he heard. That appears to be a redundant feature of the legislation as it exists. The essential purpose of what the Bill proposes is to take that stage out. I take the point that it is necessary at some stage in the proceedings that there should be a statement of means by the debtor. That is what the new provision proposed in this Bill seeks to bring about. Since Senator O'Leary is not opposed to the payment of a reasonable fee by the creditor this provides for a situation in which the debtor can be obliged to produce a statement of means that is then available for inspection on payment of a small fee by the creditor. All the Bill does is to take a step out of the procedure that is not working particularly to the benefit of anybody at the moment.

Amendment, by leave, withdrawn.

Amendment No. 3 not moved.

Section 1 agreed to.

Sections 2 and 3 agreed to.

NEW SECTION.

Mr. O'Leary

I move amendment No. 4:

In page 6, before section 4, to insert a new section as follows:—

"4.—(1) In this section the "Act of 1964" means the Guardianship of Infants Act, 1964.

(2) Section 11 of the Act of 1964 is hereby amended by the insertion of a new subsection after subsection (2):—

"(2A) Without prejudice to the law of contempt of court where a person contravenes an Order under this section he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200, or at the discretion of the court, to imprisonment for a term not exceeding six months or both."

I propose that there would be inserted before section 4 a new section relating to the Guardianship of Infants Act, 1964. The proposed new section starts off by reciting what it says in this section, "the Act of 1964" means the Guardianship of Infants Act, 1964. It is proposed to insert a new subsection which says:

Without prejudice to the law of contempt of court where a person contravenes an Order under this section he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200, or at the discretion of the court, to imprisonment for a term not exceeding six months or both.

It will be necessary for me to refer to more than this legislation to explain why I consider this to be an appropriate insertion in this Bill. In the first place this is a Courts Bill and what I am proposing to insert is a procedure to be followed by the court in this regard. A problem has arisen of which the Minister and his Department are aware concerning the enforcement of orders under the Guardianship of Infants Act, 1964. I would like to refer to that.

The three most frequent applications before a District Court under the heading of Family Law include guardianship and they would be barring, maintenance and custody. The legislation in 1981 which included the barring provision contained within it a section which dealt with the enforcement procedures of complaint, arrest and penalty including the power to remove an excluded person forcibly by the gardaí. Some of the terminology which I have used as a result of this amendment comes from that. The maintenance legislation of 1976 contains a similar provision. The House will be aware of the 1976 legislation in this regard and the Family Law (Maintenance of Spouses and Children) Act, 1976. In that Act provision is made for the enforcement of the proceedings by various means ultimately, as in all enforcement proceedings leading to a penalty being imposed on a person who defies the court in refusing to carry out maintenance orders specified and attachment orders specified under the 1976 Act.

In this case a complaint when it is properly made in accordance with the Act and the regulations made there under can be enforced by arrest and imprisonment. The problem arises that custody and access applications under the Guardianship of Infants Act, 1964 fall into the trap that there is no enforcement procedure for them. The reasons are historical. Under the Petty Sessions (Ireland) Act, 1851, section 9, it is provided that:

...if any person shall wilfully insult any Justice or Justices so sitting in any such Court, or Place, or shall commit any other Contempt of any such Court, it shall be lawful for such Justice or Justices by any verbal Order either to direct such Person to be removed from such Court or Place, or to be taken into Custody, and at any Time before the Rising of such Court by Warrant to commit such Person to Gaol for any Period not exceeding Seven Days or to fine such Person a sum not exceeding Forty Shillings.

It has been long established that an inferior court of record like the District Court cannot commit a person for contempt unless that contempt is committed in the face of the court. That is the nub and the kernel of the problem.

The Petty Session (Ireland) Act of 1851 is still operative even though the District Courts were set up under the Courts of Justice Act, 1924. In the Guardianship of Infants Act, 1964, this Act was one of the early Acts to which I am now referring, which dealt with the question of family law. At that time people felt with some justification that it would be sufficient to give the rights and the privileges under that to the High Court and the Circuit Court. Because that right was given to the High Court and the Circuit Court under the Guardianship of Infants Act, 1964 it was not felt necessary at that time to make any specific provision with regard to punishing somebody who disobeyed an order of the court. The Members will be aware that if anyone disobeys an order of the High Court that order can be dealt with by the High Court even if the person is not present. They can be sent for and they can be punished in the normal way for contempt of court. That is the background.

The Guardianship of Infants Act, 1964 did not contain a specific provision whereby people could be punished for disobeying the guardianship and access orders which were granted primarily by section 11 of that Act which I am proposing to amend. That section provides that any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant. A court may make an order under this section and give directions as it thinks proper concerning the custody and the right of access to the infant of its father and mother.

The problem that arises is that in the Courts Act, 1981, at that stage from 1964 the 1976 Act and the other Acts had been passed and it was felt proper to remit all the matters dealing with family law as far as possible to the District Court. The intention was to give jurisdiction to the District Court to deal with all family matters that usually arise. Members who were Members of the House at that time will remember that that was the objective of the Minister of the day, which we all shared. Not only was it the intention that the jurisdiction be given to the one court but that matters would be dealt with at one sitting, that there would be one occasion when matters would be primarily dealt with. There might be successive applications in later years, if people were expressing dissatisfaction or if variations were necessary. That is the nature of these kinds of proceedings. The substantive issue would be decided at one sitting or a series of sittings around the same central body of facts. It was felt that the District Court, being the most accessible court in the country, was the most expeditious procedure for doing this. It was obviously more readily accessible than the other courts. It was obviously felt that it was a cheaper and a more efficient way of dealing with the various problems that arise. That is particularly true in relation to the Circuit Court, which may not visit an area for quite a long time, expecially in the larger circuits.

The problem that arises is that when the jurisdiction under the Guardianship of Infants Act was remitted by the Courts Act, 1981 to the District Court, no provision was made for the question of enforcement. That was an oversight. The enforcement provision was not specifically necessary in the 1964 Act because the courts within whose jurisdiction it was orginally intended that the 1964 Act would operate had an inherent constitutional and common law jurisdiction law of their own, and, therefore, it was not necessary that this would be specifically referred to within the Act.

When the jurisdiction was remitted to the District Court it became necessary to have a specific provision which would deal with the case where a person who was subject to an access or custody order refused to obey that order. At the moment it is true to say that this problem, in fact, does arise. The District Court access order is effectively only a piece of paper to which a person gives consent and obeys at his discretion. There is no way in which the access provisions specifically can be enforced within the District Court. There remains an inherent jurisdiction in the Circuit Court and the High Court, and applications can be made to these courts in various circumstances in addition to the application that was made to the District Court, but that brings us back to the situation that in order to have an effective set of decisions it is necessary for proceedings to be commenced in more than one court. This has given rise to a considerable problem. It is always open to the parties to recommence proceedings in a higher court. Of course, in those courts there is an inherent jurisdiction concerning attachment and commital. In fact, what happens is that on the ground people normally try to commence proceedings in the District Court. It is very late in the day they find out that the aggrieved party, the party against whom the access order in particular is made has not intention of obeying it. Then, very often, in these circumstances new, separate and distinct proceedings have to be commenced.

It was intended that the access provisions and other provisions governed by section 11 of the 1964 Act would be capable of being implemented, but it was overlooked and no District Court remedy was allowed. As I explained, under the Petty Sessions (Ireland) Act, 1851 it is only when contempt is committed by a person in the face of the court — in other words, only if a person is foolish enough to come in to court as a result of a request, and is contemptuous of the court in their presence — that he can be committed for contempt. In the event of a person just refusing to obey an order, there is nothing which can be done against that person. Effectively, what is happening on the ground is that these orders are either being obeyed because people believe they should be obeyed or being obeyed in ignorance but in a significant number of cases they are being ignored.

I do not practise in this area at all, but friends of mine who practise in this area tell me that the following is the situation. It is very often that it is the husband who finds himself in the position where he needs access. One finds oneself in the situation where at the end of a family law proceeding that may be the only thing the husband has — access to his children. He is in the position where he cannot stop paying maintenance because he is not getting access, because he could be in contempt of court or would be subject to the criminal problems arising in respect of the Family Law (Maintenance of Spouses and Children) Act, 1976, but on the other hand there is not a quid pro quo on the other side. The person to whom the access order was addressed is under no obligation other than a moral obligation and under no penalty, if he chooses to ignore an order made under the 1964 Act by the District Court.

There is an additional problem that arises. The Minister will be aware of it. In the civil legal aid scheme there is an obligation placed on the board to grant a certificate in relation to proceedings taken at a court. Normally, they only grant a certificate in relation to a court which is the lowest court having jurisdiction to hear a matter. It is not the lowest court having effective jurisdiction, but actually the lowest court having jurisdiction in the matter. Very often they find that they cannot really help somebody who needs to go to a higher court in respect of an access custody matter, because there is a lower court with jurisdiction in relation to these proceedings. This obviously is an anomaly which the board seeks to overcome in the best way they can, but there is an obligation imposed on them to do something which is quite ludicrous.

The provisions of my amendment have been given considerable thought. I am sure the Minister will come back and make one or two comments about the amendment, but the lobby group, shall we say, who brought this matter to my attention would have liked, in the initial stages, for me to have put down a very different kind of amendment for the following reasons. The amendment which I put down is, in effect, creating a new criminal offence in this area. It would have to be, in the absence of any additional sub-section, enforced by the Garda. Effectively, that is how it would be enforced. A person would be guilty of an offence and the Garda would have to take proceedings in the normal way. There is no provision in my amendment, even though I would have liked to have had such a provision, whereby the offender can be prosecuted either by the District Court clerk or by the aggrieved party. I felt that I should, in so far as possible, stay as close to the existing legislation as possible, recognising that the Minister's Department may be committed to an amendment in this area of a more fundamental nature and may be willing in the longer term to bring about a situation where the Garda are removed from this area and greater power and responsibility is given to the District Court clerks on the one hand or, alternatively, that powers be given to the offended party to institute proceedings in respect of the offence created by misdemeanours under this and similar-type legislation.

However, I did not feel that it was proper in this Courts Bill that I should so fundamentally try to change the law. I felt that it would be better if I kept as closely as possible to the existing provisions under the Family Law (Maintenance of Spouses) Act and the other barring legislation. I felt I would be bringing the law as closely as I possibly could into line with other legislation and that the legislation would be as inherently and internally consistent as possible, recognising that there is a substantial argument to be made to remove this area altogether from the criminal side and to give the power to initiate and prosecute a complaint under this section to the aggrieved party. Taking all those circumstances into account I decided to mirror as closely as possible the other legislation. I, therefore, propose that the law would be amended by a very simple section. Section 11 of the Guardianship of Infants Act is made up of four subsections. The first subsection deals with giving the guardian of the infant power to apply for the direction of the court. The second one is giving the court the power to make an order under the section. What I propose to do is simply to insert an additional subsection there, which would make it an offence to contravene an order under this section, and make it an offence which would make a person liable to six months in prison or a fine not exceeding £200.

I realise, of course, that this would be without prejudice to the law of contempt. In other words, the inherent jurisdiction of the High Court and the other jurisdiction which resides in the Circuit Court would remain. There would not be any diminution of their powers in this regard. It would be open to them, or to any other court, to use this power if they wanted to use this power, if they wanted to enforce their proceedings in that way. Effectively what would happen is that this offence would be prosecuted only in a case where a person had refused to obey an order and where that order had been made by the District Court. That is the reason for my amendment. That is the purpose of it.

It is generally recognised that there is a problem in this area. I feel that the Minister's Department are committed to solving the problem, but I think it would be a pity if we did not tackle the problem, even on a short term basis, by a less then perfect solution. If we waited until such time as there was fundamental revision of all the enforcement law as it relates to family law matters that could be a very long period indeed. There is no way that the Minister will be able to get such legislation in place before the summer. There is no question of that. I would go as far as to say, with the schedule of legislation which we have now, that it would be, in my opinion, impossible for the Minister to get it in place prior to the general election. That is my problem. This Minister might not be the Minister after the next general election. He may have gone to another Department. Therefore, it appears to me to be an appropriate time to tackle the problem now. If there is a better solution which would solve and decriminalise the procedure under this Act and under the other Acts and if there is such procedure on the drawing board under the protection of spouses and the maintenance of spouses legislation, that procedure can go ahead because we could be confident in the knowledge that in the interim there is a procedure whereby the court, having the primary jurisdiction now and having the jurisdiction given to it by this House, with the intention that that jurisdiction would be acted upon, can enforce its orders. It will practically never be necessary for this provision to be used because it will be sufficient to say to people: "the provision is there and if you do not comply with an order of the court you will be committing an offence. You will be sent to jail or you will be fined £200".

That is all that will be necessary. In 99 per cent of the cases that will solve the problem. At the moment the situation is that one cannot look people straight in the face and say: "if you disobey this order something is going to happen to you". One can say to them: "if you disobey this order, I am going to another court to get you punished". That brings, in my opinion, court orders into disrepute and subsequently increases the difficulty of enforcing court orders in general if any one of them is incapable of enforcement because of a lacuna in the law.

Before sitting down I should say that Senator McGuinness wanted also to propose this amendment. There may be an error in the actual amendment slip to that effect. I just do not want to say that it is only my amendment because Senator McGuinness specifically sought me out last week and we discussed it and we agreed that it would go in our joint names.

Mrs. McGuinness

Senator O'Leary has explained the history of this matter very fully. There are just a few additions that I would make to what he has to say in supporting his amendment. I did mention this matter briefly in my contribution on the divorce referendum Act. I do not quite agree with Senator O'Leary when he said that at the time of the 1981 Courts Act the jurisdiction in relation to custody and access under the Guardianship of Infants Act was put into the Circuit Court and the District Court as opposed to the High Court with all our agreement and that this was something we all wanted. If the Minister looks at the debates on the 1981 Courts Act he will find that I and the then Senator David Molony, who is now in another House, spent a great deal of time opposing the whole idea of putting the custody of infants legislation into the District Court. We explained why we thought that both the Circuit and the District Courts were essentially unsuitable for dealing with such legislation. This was not because of the judges and justices who preside over them, but because of the nature of proceedings in these courts and the amount of facilities that are available in them.

All I can say is that events since the Courts Act, 1981 seem to have entirely borne out the contentions of the then Senator David Molony and myself about the unsuitability of the present Circuit and District Court system in dealing with the guardianship of infants. When we are talking about the custody of and access to an infant, we are talking about a child's whole future. The present system means that so many cases are listed in the one day that the court has ten to 15 minutes, perhaps, to deal with this really essential factor about the whole future of a child. It just seems to me that this is not the proper way in which it should be dealt with. However, if we pass the present referendum and accept the Government's statement of intent that this system will be basically changed and we will have a proper family court system which will be able to give sufficient time to consideration of children's futures and which will be able to deal with this matter properly, the situation should improve.

Again the Minister said that this is a matter of oversight. This worries me slightly because it was not entirely a matter of oversight. It may have been a matter of oversight at the time, but as I explained last Friday, very shortly after the enactment of the Courts Act, 1981, it was made clear to the solicitors employed by the Legal Aid Board that they must make their applications, as Senator O'Leary has said, in the lowest possible court. The reason for this, I should say, is not that the lowest possible court is necessarily the most easily available to the client or that the lowest possible court is the most suitable forum for the discussion. The reason for it is that the lowest possible court is the cheapest court as far as the Legal Aid Board are concerned. Therefore, they are extremely concerned that their solicitors shall not take proceedings in courts above the level of the District Court, if that can possibly be helped. It did not take long for the Legal Aid Board's solicitors to notice, as Senator O'Leary has said, that there was absolutely no method of enforcement of custody and access orders in the District Court. They brought this to the attention of their employers. As I explained on Friday, it was also brought to the attention of the Department and counsel's opinion was sought and counsel's opinion went along with what Senator O'Leary said. I should know because I wrote the Counsel's opinion referred to. I made reference to precisely the Acts that Senator O'Leary is describing. All this was done some years ago, but unfortunately, no steps were taken thereafter either to remove custody applications from the District Court or to make any form of enforcement of orders of the District Court in matters of custody and access. It has just happened to be lucky that many people who were subject to such orders were unaware that the orders could not be enforced and, therefore, to some extent they obeyed them.

The problem is definitely arising that people are disobeying this order. Only this morning I had a telephone call from a solicitor who is complaining that a District Court order had been flagrantly disobeyed with regard to custody and that his only recourse was to move the proceedings out of the District Court to the Circuit Court to get an attachment and committal proceedings which are proceedings which bring the offending person before the court to answer for his contempt. If he does not obey the court order he can be committed to prison.

The amendment brought in by Senator O'Leary could be of great use, not only in the District Court but also in higher courts because, as the Minister may recall, when the barring order legislation was first brought in under section 22 of the 1976 Family Law (Maintenance of Spouse and Children) Act, the way of enforcing barring orders was by attachment and committal proceedings. This meant that the women affected — it was generally a woman — had to, if her husband broke the barring order, return to court, make a complaint and have the case dealt with by the courts again. It was under pressure from many womens' organisations and people interested in family law that the 1981 Family Law (Protection of Spouses and Children) Act brought in a different system whereby the barring order would be enforced by criminal sanctions through the gardaí, which is the way in which Senator O'Leary's amendment is phrased. This, in many ways, is an easier and simpler way of getting it enforced than returning to court every time under attachment and committal proceedings.

I would be very interested to find that this proposed new subsection would apply to the High Court and to the Circuit Court as well as to the District Court. I understand that as it states "without prejudice to the law of contempt" it would still be open to people to use the attachment and committal proceedings. My own experience with attachment and committal proceedings in the higher courts is that they are by no means always effective, particularly where someone has removed themselves from the jurisdiction, even on a temporary basis. Personal service must be effected for attachment and committal orders because such an order carries the threat of putting someone in prison. It cannot be served on the solicitor. It can be very difficult to effect personal service. It can be very difficult to catch the person who is in breach of a court order. To have this type of enforcement at hand would help people who found that court orders were being breached.

Therefore, I support Senator O'Leary on this amendment. This basically is the main reason for my supporting this amendment. I hope the Minister will accept the amendment or an amendment along these lines. It seems to me to be a total travesty of court proceedings to say by one Act, "we are giving you the ability to move in the District Court." I may think that it is wrong, but the person involved may not. To say: "I am giving you power to act cheaply, easily and locally through the District Court, but I am giving you an order which you cannot possibly enforce" is a travesty of justice. I support the amendment.

Mr. Dukes

I want to say straightaway that I accept that there is a necessity for a suitable provision governing the enforcement of orders under the 1964 Act. What both Senator O'Leary and Senator McGuinness have said illustrates this very clearly. The question of the enforcement of orders under the Act is a matter which I am considering in the context of the preparation of another Bill — a courts Bill — which I hope to bring before the Government shortly. The amendment before us is defective in that it is incomplete. The question of enforcement arises under other sections of the 1964 Act. Apart from section 11, it arises under sections 7, 15 and 17. It is not clear that the same enforcement procedure should apply to all the different orders made under the 1964 Act. It may be argued that that is the case. Equally, there is an argument that that is not necessarily the case. This is a matter which I would like to consider more fully and in more detail. It will be considered more fully in the context of other legislation which I am preparing and to which I referred a few moments ago. For that reason and no other I would be unwilling to proceed with this amendment because a more complete approach is required. I hope to be in a position shortly to put the basis for a more completed approach to the Government.

Mr. O'Leary

The Minister is, as usual, very flattering. It is very hard to be cross with the Minister because he is a nice gentleman who likes to tell everybody how well they are doing.

I would like to examine, for the benefit of the Minister and the House the three sections which the Minister says also require certain enforcement procedures. I accept that the amendment, as drafted, does not deal with that because it specifically says:

Without prejudice to the law of contempt of court where a person contravenes an Order under this section...

It is only an order under a section. The Minister referred to sections 7, 15 and 17. I will bring to the attention of the House what those sections are. Section 7 relates to the power of a father or mother to appoint testamentary guardians. The courts are not crowded with applicants under section 7. There might be, in the case of a person going to the High Court, the need to go before a particular judge. Leaving aside that consideration, the troubled separated parents could live with the absence of a power under section 7.

The Minister in his completeness and with the benefit of specialists in this area, could point out many other problems. In so far as it relates to section 7 there is no great problem about it. If there was, all the Minister would have to do, having accepted this amendment, would be to introduce a similar amendment at Report Stage in relation to section 7. There is nothing mystical about it.

Section 15 deals with giving power to the court to order repayment of costs of bringing up an infant. I do not know how often Senator McGuinness has made an application under section 15 of the Guardianship of Infants Act 1964 but it can be said safely that such applications are most infrequent. In those circumstances, if we have to rely on the inherent jurisdiction of the Circuit Court or the High Court with regard to attachment and committal in cases where this arises, it will not impose a tremendous strain on the courts.

Section 17 is very infrequently applied. It relates to the power of the court as to infants' religious education. It reads:

(1) Upon any application by a parent for the production or custody of an infant, if the court is of opinion that that parent ought not to have the custody of the infant, the court shall have power to make such order as it thinks fit to secure that the infant be brought up in the religion in which the parents, or parent, have or has a legal right to require that the infant should be brought up.

(2) Nothing in this Act shall interfere with or affect the power of the court to consult the wishes of the infant in considering what order ought to be made or diminish the right which any infant now possesses to the exercise of his own free choice.

Section 17 is certainly rare. Would the Minister have available the number of such applications which were made at any level whether at District, Circuit or High Court under sections 7, 15 or 17? I have never heard of any application under section 17 apart from the great jousting matches back in the forties about. The Bird's Nest in Dún Laoghaire. This was the last time I heard of it being a real issue in the Irish courts. It was a little before my time. I think Senator Eoin Ryan remembers it well. I only read about it in the books.

In all the circumstances and recognising the neatness with which the Minister seeks to tidy up the law in this regard, we live without similar amendments in sections 7, 15 and 17. Inadequate and all as it is, I think we could allow the present legal provisions, in so far as they relate to sections 7, 15 and 17 to continue to operate. Effectively, all the applications which are made under the Guardianship of Infants Act on an ongoing day to day basis are made under section 11. Maybe I am wrong but this is what I am informed.

I thank the Minister sincerely for recognising the necessity for a suitable provision under the 1964 Act. I note that he is considering the position in the context of another courts Bill.

Courts Bills have a moderate priority in the Houses of the Oireachtas. The Courts Bill, 1964, was passed by Dáil Éireann on 12 March, 1986, was obviously introduced in 1964. There is another Courts Bill going around at the moment which I hope the Minister will not pursue with any great vigour.

Mr. Dukes

Sorry, it is the Courts Bill, 1984.

Mr. O'Leary

I am sorry if I stated the Courts Bill 1964 instead of Courts Bill, 1984. The Minister says he has another Bill in preparation and that this will be shortly before the Government. The Minister knows there will be many amendments made to that Bill. There will be many provisions to be incorporated in it. All I am asking is that having recognised that a problem exists, we solve it.

I am not in any way hung up on this system of solving it. If the Minister would introduce an amendment on Report Stage to deal with the matter, I would be happy to leave it at that. I am not seeking to have my name put on record as a person who introduced an amendment and had it accepted by the Seanad, as I understand that would be a precedent which would be quite uncomfortable for the parliamentary draftsman. I accept that it may be necessary that another amendment would replace it. I wonder whether the Minister, having considered the relevance or otherwise of sections 7, 15 and 17 would now consider the acceptance of my amendment or, in the alternative, the drafting of another amendment of his own for Report Stage.

Mrs. McGuinness

I would re-emphasise what Senator O'Leary has said. I have a fairly long experience of applications under the Guardianship of Infants Act. I have no experience of ever having made an application under sections 7, 15 or 17. Section 11 is obviously the section which is used constantly. But the sections which do arise from time to time, in addition to that, are sections 14 and 16. They arise from time to time in connection with applications under the Adoption Act 1974, section 3. As the nature of such applications under the Adoption Act is that they have to be heard by the High Court, any necessity of implementing sections 14 and 16 would fall to be applied by the High Court and would be provided for under attachment and commital in any case.

Other than that, I cannot even recall any judgment having referred to the three sections mentioned by the Minister. Judgments such as S v the Eastern Health Board and various other adoption judgments do refer to sections 14 and 16 and analyse what is meant by the abandonment and desertion of an infant, leaving it to be brought up by the health authority or by other persons.

The other sections I have never come across. From time to time, one comes across conflicts with regard to religion. I recall one case in which there was conflict between the Roman Catholic religion and the Lifegate Baptists. This was fully dealt with under section 11. Nobody seems to think there was a necessity to bring any other section of the Act into play.

These sections, I hesitate to say are "dead letter", but they are very seldom used. If the necessity should arise to use them, there would be no problem at all in bringing one's application to the Circuit or High Court thereby being able to use attachments and commital any way.

I share Senator O'Leary's anxiety. I accept what the Minister says and his goodwill, and, as Senator O'Leary has said, it is difficult to be cross with the Minister when he approaches it so nicely, but, nevertheless, one must be a little cross because such a new courts Bill will take some time. In the meantime, we continue to offer to people as justice in our courts a position whereby they are encouraged by the 1981 Courts Act to apply for orders. The forms are provided for them in the District Court. They fill in the forms and make application in regard to custody of an infant. They are encouraged to apply in the District Courts because that is easy. If you have no money, you do not need a solicitor or a barrister. But what is not explained to any of them is that if they get an order and that order is disobeyed, there is absolutely nothing they can do about it unless they take a Circuit Court action. If they are above the level of the Legal Aid Board, which is a disposable income of £3,500 per year — that is very low indeed — a Circuit Court Action will cost them at least several hundred pounds. If we are pretending to make the District Court available to litigants, the very least we might do is to make available to them orders which can be enforced.

If the Minister is not prepared to accept the amendment as put down on the list of amendments today, he should come back to us on Report Stage with an amendment which suits him and his advisers and bring it in if only as an interim measure until some more satisfactory method of family courts can be set up.

My hope would be that this matter would be dealt with, not by another courts Bill which might take goodness knows how long to process but by a whole new legislation which would depend on the referendum. Even if we did not succeed in having the referendum passed the necessity for having a whole new family courts structure is quite sufficiently established through the deliberations of the Committee on Marriage Breakdown and through debates on the referendum Bill in this House and in another place. Even if we do not succeed in providing a divorce jurisdiction we should surely proceed to reform the whole family law courts system. I would see that the eventual method of enforcing orders under the Guardianship of Infants Act would fall to be dealt with under that legislation. I am quite prepared to have it so dealt with in order that even if we do not succeed in providing a divorce jurisdiction, we can proceed to reform the whole family law courts system. I would see that the eventual method of enforcing orders under the Guardianship of Infants Act would fall to be dealt with under that legislation and I am quite prepared to have it so dealt with.

In the meantime, it is a positive fraud on the public to suggest to them and to provide them with forms to go to the District Court to seek orders which cannot be enforced. If the Minister is not prepared to amend the legislation in this way, I suggest that he should withdraw the District Court forms and the he should put up notices outside all the district courts saying "please do not apply for custody orders here because they cannot be enforced. Please go to the Circuit Court and consult your solicitor" or words to that effect. It is genuinely a kind of fraud to ask people to come into court to look for an order which there is no way of enforcing if it is broken. I repeat that I would ask the Minister, if he cannot accept the amendment in the form in which it is put down today, to come back on Report Stage with an amendment of similar effect which would enable custody and access orders to be enforced in the District Court.

Mr. Dukes

I thank Senator O'Leary for his attribution to me of a concern to flatter him.

Mr. O'Leary

That was all?

Mr. Dukes

No, indeed. It was no part of my intention to flatter any Member of this House. It would be the sheerest presumption on my part to even attempt to do so since those who are already perfect cannot, by definition, be flattered.

Mrs. McGuinness

We know ourselves that we are perfect, Minister.

Mr. Dukes

Leaving that side, I think that, while Senator O'Leary recognises the concern on my part for tidiness of legislation, he urges a different course on me for reasons which I can accept. As I said a few moments ago, I accept the case for a suitable provision for the enforcement of these orders and in the light of what both Senator O'Leary and Senator McGuinness have said, I am quite prepared to reflect on the matter and to come back at Report Stage to see whether this or some similar approach might not be an appropriate way of doing so reserving, of course, the right, when we get to that point, of suggesting to the House that the procedure I originally suggested is the more appropriate one but that is a matter we can deal with at that stage.

Mr. O'Leary

The Minister will understand that if we introduce that amendment or an amendment of a similar kind on Report Stage it is not because we seek to pressure the Minister in any way but merely to enable us to discuss the matter. I should like to emphasise to the Minister that in this regard both Senator McGuinness and I recognise that a much more fundamental look at the whole area is necessary but we feel that the Minister could rather simply improve the situation a little bit now and at least that would give us something to be going on with and then in due course let the Minister improve the whole area of enforcement of the protection of spouses and the family law maintenance provisions and the various other enforcement procedures in relation to family law. I thank the Minister in that regard.

While listening to the Minister, I noticed that at page 228 of Family Law in the Republic of Ireland by Alan Shatter, Second Edition, he makes the following comment which I think is interesting. He says, “relative to sections 14 to 17”. That would include both sections 15 and 17 to which the Minister referred. They in effect, re-enact the provisions of the Custody of Children Act, 1891. These provisions apply to habeas corpus applications to the High Court and primarily relate to disputes between parents and strangers. They may also apply to disputes between parents if either takes habeas corpus proceedings against the other to enforce a right but in practice such a dispute is normally resolved upon an application made under section 11 of the Act. I think that conforms with Senator McGuinness's experience in the matter. As I have had no experience in this area, I can only go on what those with such experience say. In those circumstances, I thank the Minister for this agreement to have a look at it on those lines and on that basis I withdraw the amendment.

Mrs. McGuinness

I should like to thank the Minister for his consideration of the matter and I hope that we will be able to deal with it satisfactorily on Report Stage. It is true, as Mr. Shatter says in his book that these sections arise in disputes between parents and strangers and that is precisely why, as I said, sections 14 and 16 arise under Adoption Act applications which are essentially disputes between parents and what are described as strangers, in other words, people who are technically outside the family.

Amendment, by leave, withdrawn.

SECTION 4.

Mr. Durcan

I move amendment No. 5:

In page 6, subsection (3), line 15, after "was" to insert "knowingly".

I should like to apologise to you, a Chathaoirligh, and to the House for not being here to move amendments Nos. 1, 2 and 3. My absence was due to a misunderstanding as to the time when Committee Stage would be taken and I wish to apologise for my absence at that time.

This is an amendment for the purpose of inserting the word "knowingly" into subsection (3) of Section 4 of the Bill. As the subsection stands, it would appear to me to impose an offence of strict liability in respect of the offences specified and they are the providing of false or misleading information by a licensee to the Revenue Commissioners in respect of an application for the renewal of a publican's licence under the new procedure. The provision of false information or the provision of misleading information would appear to me not to be a situation where an offence of strict liability should be imposed. What is false information? What is misleading information?

In any case, it is a question of fact to be determined by a court but somebody may give information which is misleading and they may not give that information knowingly. They may not give that information with any criminal intent and they may then find themselves in a situation whereby a substantial monetary penalty may be imposed against them and, secondly, they may find themselves in a situation where the court, exercising its discretion, could order the forfeiture of the publican's licence, which is a power the court would have under subsection (4) of the section. This is one case where the word "knowingly" should be inserted and I would ask the Minister to consider my suggestion seriously.

Mr. Dukes

This amendment creates a difficulty in a new area, in other words a difficulty of a kind that we already have met in relation to another case. Subsection (3) is designed to cater for a situation where false or misleading information is supplied to the Revenue Commissioners by a person seeking renewal of his licence under the new procedure set out here in section 4. It provides for the court having the power to impose a fine not exceeding £300 where a licence is renewed on the basis of such false or misleading information. Under subsection (4) the court has a discretionary power to order the forfeiture of a licence where there has been a conviction under subsection (3). I note, and emphasise, that the court has a discretionary power in that regard. Any provision that creates an offence is virtually useless it is enforceable. To insert the word "knowingly" into subsection (3) would, in fact, make it virtually unenforceable.

I think it is enough for me to refer to the presence of the word "knowingly" in sections 10 and 11 of the Intoxicating Liquor (General) Act, 1924 to illustrate the difficulties it can cause. Under those sections, a licence holder who knowingly supplies alcohol to persons under the age of 18 is guilty of an offence. I have been advised, and I am satisfied it is the case, that the presence of the word "knowingly" has made convictions under those sections extremely difficult to obtain. There are a number of the Members of the House here present who are well aware that there is a very substantial body of public opinion which represents very strongly to me that the word "knowingly" should be removed from those sections for the very reason that it is extremely difficult, in fact, well nigh impossible, to demonstrate that quality of knowing in relation to any such action. In those circumstances, I do not think that I could accept the amendment that is being put forward.

The contention of Senator Durcan that, in some way, people can inadvertently provide false or misleading information is, of course, one that, with the greatest of respect, can be taken with a grain of salt. I am quite sure, and I think the Senator has as much if not more experience of this than I have, that the Revenue Commissioners in their dealings with those involved in various professions are perfectly capable of distinguishing between inadvertent errors such as putting a wrong tot in a column, for example, and other errors or other misrepresentations that are intended to mislead. While we should always presume that people are innocent until they are proven guilty we should not always presume that they are ingenuous unless proven otherwise.

Mr. Howard

I was anxious to hear the Minister's response to Senator Durcan. I can only say that I am disappointed not alone with the response but rather with the tone of the response because I would have expected that the Minister's concentration would be on identifying what false and misleading information was. Instead of that, he took off on a tangent and went after the word "knowingly" in other sections of the licensing code. What disturbs me most about this is that it seems to confirm an attitude within his Department that looks on the people operating the licensed trade as a group of gangsters capable of engaging in objectionable practices. As I say, his response would indicate to me that that thinking is alive and well there. That disturbs me. To me it is essential to have the word "knowingly" in the section.

I would like, as I had hoped that the Minister would do, to spell out for the House what precisely is meant by false and misleading information. On Second Stage I addressed that query to his Minister of State. The Minister of State quoted an example that a person with an off-licence could represent in his application that he had a full on-licence. Very clearly, that would be a serious offence. It would be a serious misrepresentation. An argument could be based on that one. Unless the terms "false and misleading information" is confined to that offence or an offence of a similar nature, then where do you draw the line?

If the Minister is going to insist on this penalty remaining, where information that might not be 100 per cent correct would be inadvertently supplied, he cannot justify refusing to accept Senator Durcan's amendment. Before we can depart from that section, it is important to have on the record of the House what type and precisely what kind of false and misleading information is in the Minister's mind on this issue.

Mr. Durcan

I agree with most of what Senator Howard has said. There are certain cases and certain offences where it is appropriate to have the word "knowingly" and certainly to compare the offence created by this section with the under age drinking provisions is not appropriate. You are talking about two totally different types of offences. Here you are talking about an offence which can arise following something that is in the administrative capacity of a publican in relation to the Revenue Commissioners. It is not an offence that follows upon a specific public act of a publican as would arise in relation to the under age drinking provisions. If incorrect information is furnished, it will be clearly visible to the Revenue Commissioners in many instances. There should be no difficulty in convicting somebody if information which is misleading is furnished because of the status of a licensee, the status of a licence or the status of a licensed house: all of these matters, which are relevant in relation to the renewal of a licence, are questions of fact which can be proved with ease.

To omit the word "knowingly" there and to create an offence of strict liability for a misdemeanour or for a misact of this nature, is to my mind entirely inappropriate. I do not think a comparison can be drawn as between this type of offence and the under age drinking provisions. For that reason I would ask the Minister to, perhaps, reconsider the matter between now and Report Stage. Having said that, I appreciate that that Minister is, perhaps, the only Minister for Justice in recent times who has taken to heart the suggestions of the commissions established by his Department in the late twenties and in the late fifties to the effect that the licensing laws need reform and codification. If one might get an indication from the Minister that he would be prepared to take on board the suggestion I am making here in the light of the wider codification and reform of the licensing laws that I gather he was undertaking, then, perhaps, it might be possible to withdraw this amendment.

Mr. Dukes

Could I point out, with the greatest concern not to be contentious, that I believe that Senator Howard feels that a certain profession is pricked where it is not pricked by the words I have used. I cannot see how Senator Howard could have interpreted my remarks as meaning that I regard the licensed trade as "a group of gangsters". That was certainly not the intention of my remarks nor I think could it reasonably be read from my remarks by somebody who was listening to them impartially. That certainly is not my intention.

I want to point out to Senator Durcan that the offence that would be created by the subsection in question would not be an offence of strict liability, in that all of the normal defences would be available in arguing about it. A court would take into account any evidence, including evidence of inadvertence, that came before it before arriving at a conclusion on the matter.

Senator Howard asked what kind of information that might be supplied would be false or misleading. Senator Durcan has neatly illustrated several of the main kinds of information that is, in relation to the status of the licence, the status of the licensee, the status of the house and all of the particulars required to be furnished to the Revenue Commissioners in the application. Senator Durcan has taken me up wrongly in one of the comparisons I made. I was not at all comparing this offence with the offence of supplying drink to underage persons. I do not compare the offences at all. I was simply pointing out, by reference to our experience in relation to that offence, that the use of the word "knowingly" in the legislation makes it extremely difficult to establish that an offence has been committed. I could have used a different illustration in relation to an offence that would not be at all comparable with what we are talking about here. I would ask Senator Durcan and the House to cast their minds back to our discussion of, I think, section 93 of the 1983 Finance Act where we had a long discussion about the difficulties of using a word like "knowlingly" I am subject to correction about the number of the section but I think the Senator will remember our discussion. I am not comparing the offences. It is the effect which the use of the word "knowingly" actually has.

One is not starting from the point of view that we are dealing with a group of gangsters, indeed far from it but since the potentially false or misleading information can be established by reference to the requirements that the Revenue Commissioners have and since it is not an offence of strict liability and therefore the normal defences are available and since courts tend to distinguish very clearly between "inadvertent" and intent, I do not think that the strictures that have been advanced against me apply in this case.

Senator Durcan has asked a much wider question in relation to the overall view of licensing laws. He has raised a very valid question. This may be a little outside the scope of the amendment we are discussing but since the question was asked I will answer it. Essentially what is involved here in relation to the intoxicating liquor laws is a very limited simplification of the procedure for the renewal of licences. This Bill does not deal with a fundamental or substantial review of the licensing laws. The House will be aware that one Bill will be coming forward shortly that deals with certain aspects of the licensing laws and that a further Bill will follow that deals with some of the more fundamental aspects we have to deal with it. These Bills will give us two occasions when we can discuss some of these more fundamental issues which do not arise properly within the very limited scope of this Bill.

Mr. Howard

I must withdraw any implication there might be in my suggestion that the Minister was regarding publicans as a group of gangsters. I used the term in the heat of the moment but I withdraw it.

I found it grossly irritating and disturbing, and that was part of the problem, that at the very beginning of the debate there was the imputation that the publicans of this country are the source and the problem of underage drinking. That is a simplification that a number of people in Ireland engage in. They conveniently ignore other outlets such as discos, off-licences and licensed clubs. I accept that I used very emotive language in responding to the imputation and I withdraw those terms.

I addressed a query to the Minister regarding the way false and misleading information can be supplied. That has been expanded somewhat. At the end of the Second Stage debate we were simply talking about the risk of an off-licence holder presenting himself as the holder of an on-licensed premises. We have brought this further to the question of the status of the person and the status of the house but is that the extent of it? Are there other queries in reply to which false and misleading information could be supplied. We have identified three at this stage. Could we possibly identify the full and precise range?

Mr. Dukes

Again, in deference to Senator Howard, it is his interpretation that any suggestion has been made that the publicans are the only source of the problem of underage drinking. That was not to be read from my remarks. I was using an illustration of another use in a different context of the word "knowingly" that simply shows how difficult it is to implement it in practice in a meaningful way. That was the only purpose of using the illustration. In the circumstances it would have been safer had I confined my remarks only to my memories of the 1983 Finance Act, that while it would not have been uncontentious it would have been undiscriminatingly contentious rather than discriminatingly contentious.

On Senator Howard's other question, I cannot answer that question specifically because the information that is required will vary from one case to another. Another example would be a case in which a hotel licence would be represented to be a publican's licence. The information that is required, while most of it is standard can vary from case to case. We are talking here about the type of information that is required to be supplied to the Revenue Commissioners. I cannot imagine that, for example, were information in relation to the volume of business to be required a wrong tot which was manifestly a clerical error would be taken to be false or misleading information. Neither I think could a wrong tot on the Revenue Commissioner's side — which has not been unknown to happen — be taken to be a false or misleading reply. What I have in mind very clearly is the information that is central to the decision that has to be made and if a false or misleading view is given of any of them to the essential points, this subsection would provide that an offence would arise, that is, in the circumstances set out in the subsection.

Amendment, by leave, withdrawn.

Question proposed: "That section 4 stand part of the Bill."

Mr. Durcan

On the whole it is a very good section. It is a very wise provision and it will be in ease of publicans and will be in ease of District Court clerks who will administer the renewal procedure. I am glad to note in the Schedule to the Bill that club registrations must also be renewed at the annual licensing court in September. I should like to ask the Minister if his Department have taken any steps in relation to all other licences which issue either by the District Court or by the Revenue Commissioners authorising a person to sell intoxicating liquors of any kind. I am interested in the wholesale beer dealers licence or the various type of wine licences. It would be wise if all of these licences which require court certificates should be renewed at the annual licensing court in September. I do not think that is provided for in the Bill. It is still possible to renew other types of licences which require court certificates at any sitting of the District Court. All licences should be renewed at the end of the year. The only other point I would make is that the granting of all publicans' licences should be brought within the jurisdiction of the District Court and not maintained within the jurisdiction of the Circuit Court where people are put to unnecessary expense when applying for new licences. I would like the Minister's comments on the renewal procedures for other licences.

Mr. Dukes

I accept what I think is the basic thrust of what Senator Durcan is saying which is that in our approach to the various forms of liquor licences, and we have quite a few, we should try as far as possible to adopt the same broad approach to the granting of those licences. I would go further and say that we should adopt the same broad approach to what we might call the surveillance of those licences. That is a matter I wish to address in the second of the forthcoming Bills which I mentioned earlier. We could spend a long time in this House, probably in great acrimony, talking about the basic philosophy of licensing laws in the first place, but as long as we have them we should ensure that we apply evenly the same kinds of concerns to the granting and surveillance of licences, no matter where they are. That is something I intend to take up in the second of the two Bills I will be bringing forward.

Mr. Howard

I welcome the section generally. It represents a simplification of the procedure by which publications can obtain their licences. What we are attempting to do is to tidy it up. The thrust of the section is sound. I welcome the Minister's indication that he is contemplating a uniform system for the application, issuing, and the surveillance of licences. The earlier these measures are taken the greater my welcome for them will be.

Question put and agreed to.

NEW SECTION.

Mr. Howard

I move amendment No. 6:

In page 7, before section 5, to insert a new section as follows:

5.—Section 25(1) of the Intoxicating Liquor Act, 1927, is hereby amended by the insertion of "if the Court in its discretion so thinks proper" after "conviction" in the third line and the subsection, as so amended, is set out in the Table to this section.

TABLE

25.—(1) Whenever the holder of any licence for the sale of intoxicating liquor by retail is convicted of an offence to which this part of this Act applies the conviction if the Court in its discretion so thinks proper shall, if the person so convicted is the holder of one such licence only, be recorded on such licence or, if such person is the holder of two or more such licences in respect of the same premises, be recorded on all such licences or if such person is the holder of two or more such licences which do not all relate to the same premises, be recorded on such one or more of those licences as relate to the premises in respect of which the offence was committed.

The purpose of this section is to restore to the courts the discretion as to whether a publican's licence should be endorsed on conviction for certain offences. The usual offence for which publicans find themselves in court is permitting people to be on the premises outside permitted hours. Unpermitted hours usually start 11 minutes after closing time. Therefore, if publicans are prosecuted for having people on their premises anytime from 11 minutes after closing time they are liable on conviction to a fine but their licence is automatically endorsed. The court has no discretion in relation to that penalty. If at any time there are three live endorsements on a publican's licence it is automatically forfeited.

There was a general acceptance over the years, since this present system became operative in 1960, that only one endorsement could apply to a particular occasion, but as a result of a Supreme Court decision on 31 July last the court held with a district justice who imposed more than one endorsement in relation to the same occasion. Consequently we have a new situation which did not, to the knowledge of the licensed trade, prevail until then. This is where a person can forfeit his business and livelihood in respect of the one occasion. This becomes possible by virtue of the fact that the summons issued in respect of people being found on the premises contains six charges. These are, to sell intoxicating liquor, to expose intoxicating liquor for sale, to open the said premises for the sale of intoxicating liquor, to keep open the said premises for the sale of intoxicating liquor, to permit intoxicating liquor to be consumed on the said premises and to permit persons to be on the said premises. All these six offences carry an endorsement. In respect of the one occasion we now have a situation where a publican can receive six endorsements. Two are academic anyway because once there is a conviction and three endorsements the licence is automatically forfeited.

We might examine the implications of what that can mean for a family who may have invested their lives in building up their business. They can lose it overnight. There is no remedy within the courts as matters stand at present. What we seek to rectify by introducing this section is to get over a situation that involves the confiscation of a person's legitimate livelihood and property. When I talk about the confiscation of a person's legitimate livelihood, I am not using emotive terms for the sake of doing so. I am merely using phraseology that was used by two of the Minister's predecessors, by the late Kevin O'Higgins during the discussion on the Intoxicating Liquor Bill, 1927, and by Mícheál Ó Móráin deputising for the then Minister, Oscar Traynor, during the discussion on the 1960 Intoxicating Liquor Act. Both referred to the injustice of the confiscation of a person's legitimate livelihood and property. They are the words I have used also in this discussion.

To deny the courts discretion to take into account the events and circumstances surrounding a particular offence is, so far as I am concerned, and I am sure the House would agree with me, a reflection on the competence, independence and integrity of the Judiciary. It represents an authoritarian attitude and is unacceptable in a modern democracy.

The implications of this provision in law are perhaps useful. What has been the net effect of this? I am aware of seven licences that have been forfeited in the past two years. I am aware of a further 31 cases that are at various stages within the courts system. But if the law remains unchanged there can be only one inevitable result. These cases will eventually be in the High Court or the Supreme Court and the publicans concerned will lose their legitimate livelihood and their property will, in effect, be confiscated. It is to deal with that situation that Senators Durcan and Cregan and I have tabled this amendment. Justice and fair play demand that the consequences of the law as it stands have to be recognised, faced and rectified.

I conclude by reiterating what Senator O'Leary said in an earlier discussion here. Once we have recognised the problem let us set out to solve it.

An Cathaoirleach

Might I ask the Senator a question? He says seven people have been convicted once and are in danger of losing their licences. Is that based on one conviction?

Mr. Howard

No. The seven premises in question were pubs, but are now no longer pubs because the situation arose where at a given time three live endorsements were on their liquor licences. The licences were automatically forfeited. Once a publican loses his licence through forfeiture, his premises can never again be licensed for the sale of drink.

Mr. Lanigan

I join with Senator Howard and the other Senators who have put down this amendment. I agree totally with it. Indeed, I know of three people who have lost their licences. One of them is a great friend of mine. Not alone did he lose his licence but he lost his livelihood and property, because his property had been mortgaged to a bank in the purchase of this licence. It is wrong that a mandatory endorsement should apply in the case of each of the six offences that have been mentioned by Senator Howard. The first indication of this problem was brought home to me when a public house was put up for sale in Kilkenny. The prospective purchaser who had paid a deposit could not come up with the amount of money that was needed, and because he could not come up with the money he got out of the sale by quoting these endorsements. Even though there was only one endorsement in that case, the plea was made in court that there should have been mandatory endorsements under the other headings, those mentioned by Senator Howard.

It is totally wrong that because of what would seem to be a very minor indiscretion on behalf of a publican, his means of livelihood should be taken away. The situation now is that if a garda goes into a public house, as Senator Howard has said, at 11.15 p.m. and finds people there the publican cannot alone lose his licence but, also his property and find himself at the side of the street looking for, as in the case I am aware of, a council house and having no means of support while owing an enormous sum of money to the bank. I make an appeal for justice for these people. Every time a public house is raided by the gardaí, the publican's licence will now be in jeopardy and this should not be so. The people who drafted this section must not have foreseen that this would be the case. They did, I believe, in justice feel there might be a very small minority of publicans who would not be fit to hold licences and who would be trading after hours as a matter of course and not attempting to abide by the law of the land. I suspect that was the reason for introducing this section.

To restore discretion to the courts is not out of order because district justices know, and are in touch with, the areas in which they operate. If they are not too certain of the areas in which they operate they can obtain very good advice from the Garda in the area. If they go to the local gardaí, they can find out what type of trading is going on in any premises within their jurisdiction. Giving discretion to the courts does not take away from the trend of this Bill.

I agree with Senator Howard. To lose one's livelihood because of having no lamp on one's bicycle would seem to me to be a serious injustice and the indiscretion of having somebody on one's premises a quarter of an hour after closing time would seem to me to be equal to having someone out at night with no light on his bicycle.

Mr. Daly

I join with the other Senators and in the unavoidable absence of Senator Cregan who was one of the people who tabled this amendment, I would like to say that it is a terrible injustice that somebody could be deprived of their livelihood just because they had somebody in their public house after closing time. Ninety-five per cent of the gardaí would not do anything to endanger a man's livelihood but human nature being as it is you will get the odd-bod. Some of the gardaí would look upon this differently. I know a case where a garda has gone to the same premises three times, and twice on the one night and that publican is on the point of losing his licence. I believe that is very unfair. Then there are other gardaí who are broadminded. Two friends of mine were coming back from Ballybunion one night. They passed through a village and saw a garda standing at a corner at 2 o'clock in the morning. They stopped and asked him if he knew any place where two men could get a drink and the garda said, "I do not, but I know where three men could get a drink". I would suggest two points to the Minister. I know that anyone can pose a problem but it is only fair that you should also pose a solution. To that extent I suggest that the courts be allowed use discretion in these matters and that instead of licences being endorsed fines should be imposed. If the number of offences increases the size of the fine should increase also. That would be a big deterrent. I would not fine the publican but the people on the premises who will not leave.

An Cathaoirleach

I thought the Senator was a pioneer.

Mr. Daly

You are in the business yourself so I will not say any more about that. I would ask the Minister to return the discretion to the courts and, secondly, to devise a system whereby those found on the premises after hours are fined. This would be a good way of bringing in revenue, too. They would go home in time if the fine were big enough, and if it was not big enough in the first instance to prevent the offence being repeated, it could be made big enough the second time. That would put a stop to such offences.

Mr. Ferris

I rise to speak on this section to assure the Minister that more than the other two parties who have spoken have an interest in this section. If we add the weight of the three sides in the House on this section it will be an indication to him of the seriousness we consider could arise in the trade if the section is not put in as suggested by my colleagues.

It sounds to me a very reasonable suggestion that we would insert a new section which would give discretion to the courts. In giving discretion to the courts we realise that nobody can be seen to be breaking the law, but we are anxious that there would not be an automatic losing of one's licence or indeed of one's livelihood by reason of the fact that the owner of a licensed premises would not be able to convince the Garda that he had made all reasonable efforts to clear his premises on the third occasion, if that is what is entailed. He only loses his licence after three offences.

All of us know, from being patrons of public houses and having relatives or friends who own public houses, that the vast majority of these establishments throughout the country are run properly and run efficiently and that one can witness much effort being made by the proprietors to clear the premises at the appropriate time. The owner comes from inside the counter and stays outside the counter. There is no drink being served, but there are drinks still not consumed within the prescribed drinking up time. If the publican is unfortunate enough to have a garda walk in to his premises and the publican says "I have made every effort to get these people to leave and apart from assaulting them at times, it is difficult to clear the premises," all his efforts are lost if it is the third occasion.

We are suggesting in this amendment that a new section be added that at least a publican would be given the opportunity in a court situation to be properly represented by the legal profession, to be able to put a case and to bring witnesses to bear in support of his case that he had made a genuine effort to clear the premises. It is not an unreasonable request. I did not hear the Minister's original response to the movers of the amendment. We all want to be reasonable. We know that in bringing this Bill the Minister is tidying up areas that many of us would welcome. This could be a draconian section now.

Many representations have been made to us by people who are responsible in the trade and are involved with the Vintners Association and other responsible people in the trade. A very useful function is performed by the traditional Irish public house. I do not think we should have any legislation that would in someway remove that service. We all realise the difficulties publicans have at closing time. We have to be strict about it but certainly an opportunity should be given to people in a court situation so that the court, after hearing all the evidence, could use a certain amount of discretion to know whether this was the time that a man should lose his licence and his livelihood or whether he should be given an opportunity again in the future. That is not unreasonable. Certainly from my experience in the country I do not know of any publican who deliberately allows his premises to remain open after hours except by special arrangement and for very special reasons. Even those arrangements and reasons are recognised by the local gardaí and there is no law breaking involved in it. It is part of a community programme. It could be a party or anything. There is a bit of discretion to be used. That is a good idea. The section we are asking to be inserted here is not unreasonable, I ask the Minister to give it the all-party support that we are trying to give it here and to seriously consider it.

Mr. Durcan

I joined with Senator Howard and Senator Cregan in putting down this amendment by way of an attempt to remove from the intoxicating liquor code one of its most draconian provisions. It is a provision that is inappropriate in the licensing code. It is one which has been challenged in a meek way before the courts on a constitutional basis in the past and it is one which currently is the subject of a challenge of that nature in the Supreme Court. It is extremely inappropriate, as the previous speakers have said, that if somebody is deemed guilty by a court of summary jurisdiction of offences against the licensing code and if three of these offences which are recordable offences, stand at the one time against his licence, that that person should be barred forever from holding a licence and that the house, which was licensed at that time, should be delicensed forever, as it were, also.

It is a totally inappropriate response to a situation which may arise, not as a result of any gross abuse of the law, but rather by virtue of simple offences. It is interesting also to record the fact that the whole philosophy of the forfeiture of a licence is one which the Legislature have looked at in different ways over the years. It was the 1872 Licensing Act which introduced the idea and the 1874 Licensing Act (Ireland) gave substantial relief against the provisions as introduced and restored complete discretion to justices as to whether an offence should be one in respect of which a record should be noted.

The 1924 Licensing Act, one of the most important licensing Acts introduced in this State, provided for mandatory forfeiture in some cases. The 1927 Act, the one we seek to amend here, gave substantial relief against forfeiture. The 1943 Licensing Act restored discretion to justices as to whether an offence should be deemed recordable and the 1960 Act removed that discretion again. We are not seeking to remove something that is deemed sacrosanct within the licensing code, but rather to restore matters to pre-1960, indeed to bring about a sense of equity and a sense of constitutional legitimacy to a situation that certainly would worry me on that ground.

The effect of section 25 of the 1927 Act is to provide, if three endorsements stand against a licence, that the licence will be deemed forfeited. Is that a reasonable penalty to impose against a publican or is it an unreasonable penalty? I believe it is an unreasonable penalty. This is a situation where a district justice should have a discretion. Senator Daly said that the gardaí in an area have an idea how publicans conduct their public houses. A district justice assigned to a district with particular responsibility for that district, gets a fair idea how licensed houses are run. The discretion we are seeking to have restored in this amendment should be restored to our District Court Bench.

The purpose of this amendment is simply to restore that discretion. If there are cases where there are gross and blatant abuses of the licensing laws, then the district justice will have power to say to somebody: "you are not a fit person to hold a publican's licence" and he may still forfeit the licence. The purpose of this amendment is not to remove that power, but simply to give to the District Court discretion.

This is something which has not arrived at the stage it is today in a willy nilly fashion. It is something that has arrived before the Seanad following much consideration by Senator Howard, Senator Cregan and myself. We went to the trouble of drafting a Private Member's Bill which we did not promote in this House. We felt that this Courts Bill 1984, as it dealt with certain reforms of the licensing code, might be an appropriate Bill to include this idea.

Some of us consider that the whole procedure for endorsement and forfeiture and the exercise of discretion might even go beyond the proposed amendment. If a publican gets involved in a pattern of behaviour deemed by his local district justice not to be good, there should be a provision available to the District Court whereby that publican could be disqualified for a period of one or two months from holding a publican's licence. That is not envisaged by our amendment. I would like to see a situation arising whereby a publican would have to place on the door of his premises a sign saying "closed by order of the District Court for a period of two months because of offences committed on certain dates".

We must reform the type of penalties and their enforcement along these lines. The purpose of this amendment is simply to give discretion to the District Court. It is a well thought out and considered amendment. I could perhaps be further considered and if the Minister gives a commitment to the idea we are talking about it might be possible in the future Intoxicating Liquor Bill to introduce a more expansive amendment to cover the ideas I have mentioned.

I agree with the points made by other Senators that it is draconian if somebody loses his licence because there are endorsements. The courts in a number of decisions have given every opportunity to publicans who are in this situation to get out of it if certain circumstances exist. I am aware of one such case which was decided within the past three months by the Circuit Court and in that there were approximately seven endorsements on a licence, but by virtue of a number of factors existing, principally the fact that the licence had been renewed by the Revenue Commissioners, the Circuit Court judge held that the licence could not be deemed forfeited. This is an indication of the attitude of the courts to what we are talking about. We are essentially talking about a question of principle. I would like to hear the Minister's response to that.

Mr. McDonald

I am impressed by the arguments put forward by my colleagues who have spoken on this amendment. I add my voice to theirs in pressing on the Minister the grave difficulty that has arisen in rural areas. In my constituency 97 or 98 per cent of pubs are residential business premises. The standard and service are good. This particular penalty is regarded as extreme, especially in the winter months when the trade can be very small. In small towns and villages publicans must use discretion in clearing their premises at closing time. They depend on their customers for their livelihood. It is difficult for even the most conscientious publicans on occasions, to clear their premises. This often happens in rural areas on auspicious occasions. In most cases the publican had difficulty in clearing his premises. In some towns the Garda give assistance in clearing the premises. In general publicans are very law abiding.

With regard to the penalty, a person convicted of dangerous driving, drunken driving or killing a person accidentally, the penalties inflicted are certainly not as severe as the forfeiture of one's livelihood. Even in a case where a person is charged with murder and pleads guilty to manslaughter, the penalty does not equate to the forfeiture of one's business. The extraordinary thing about it is that it has only come about in the recent past. In practically every county there are cases which are proving a great worry to publicans. I ask the Minister to look sympathetically at the problem highlighted by my colleagues.

There would hardly be 500 people per licence in rural areas. The main difficulty arises where an over-zealous member of the Garda Síochána has something against a particular publican. This in its own way causes great difficulty. I ask the Minister to sympathetically consider this amendment. I am a public representative for 30 years and I have found publicans in my constituency give a good service.

The law has the opportunity at the annual licensing court to object to the granting of a licence if a person is not suitable. This is a clear example of time eroding the law and the present view taken has created a type of monster of its own. I would like to see the law observed. Nevertheless the spirit of the law should be very much to the fore, especially when dealing with publicans. If the law is patently inappropriate, as this subsection is, it ought to be changed in the interest of equity and fair play.

Mr. Browne

I have to admit, like other speakers, that I have absolutely no interest in the profits or in the running of public houses. I never got anything from them except a headache. I have a very sincere interest in supporting this amendment. I have a been in my bonnet about mandatory sentences. It is a very lazy and easy way of deciding what sentence should be imposed on a person. It presupposes that conditions are always the same. For example, a person who is breathalysed and found to be 3 per cent over the limit can get a six month or a 12 month sentence; the same as somebody who is over the limit by double that amount of alcohol. Once mandatory sentences are given, fair play is left to one side. In regard to the running of public houses, there are so many variations that to decide that a person convicted three times can be on the same level as somebody who is caught half an hour after closing time, or somebody else who keeps a public house open all night letting people home at 6 o'clock in the morning to stagger to work. There is no comparison in those situations.

It is very difficult for a publican to clear a public house. I have a lot of sympathy for publicans who provide a social service where many of them have a dancing area and music is supplied. It is a social centre in the rural areas where people can go and dance and finish up maybe at closing time with a pint and unless they want to be a real Jimmy O'Dea version of a pint drinker, they need a little time. If somebody insists on enforcing the ten or 11 minute rule, one is certainly asking for too much.

There is a vast difference between somebody who is caught within half an hour of closing time and somebody who is caught three or four hours behind time. I would not defend publicans who break the rules blatantly and who make no effort to put young people particularly out of their premises. I do not see why publicans are supposed to identify every person who enters their premises. If young people were fined for under-age drinking the same as under-age drivers are fined, it might sober them up. The vast majority of publicans make a good effort at keeping the rules. I would hate to think that we could not give a judge the discretion to decide whether something was very serious and merited putting a person out of business or simply that it was a technical offence. For example, if a person who had three parking offences suddenly found he lost his car because it was a mandatory sentence, it would sound absurd. In the same way some of the ways that licenced premises can be caught are absurd. I appeal to the Minister to listen carefully to the arguments for this amendment.

Mr. Dukes

I do not want to go over old ground but earlier on this afternoon Senator Howard misunderstood remarks that I made. I have been listening to remarks of Senators in the last few minutes and I am just as much in danger of misunderstanding their remarks as Senator Howard was earlier on in misunderstanding mine. Of course, Senator Howard and I are far too sensible to get into that kind of situation.

The amendment that is proposed would leave it to the discretion of the court to decide whether or not to endorse convictions of recordable offences on the licence concerned and in that way restore the position to that which was brought about by section 14 of the Intoxicating Liquor Act, 1943. It is fair to say that it was as a result of experience gained in the years after 1943 that an amendment of that provision was introduced by section 37 of the Intoxicating Liquor Act, 1960, which was, indeed, the provision that made an endorsement on the licence of conviction of a recordable offence mandatory in each case. The system of the endorsement of liquor licences of certain offenes, including those relating to a variety of offences which Senator Howard read out in part earlier on — there are others which he did not refer to, in all totalling 14, if I am not mistaken, — has been one of the most important parts of the machinery for the enforcement of the Intoxicating Liquor Acts.

The experience in the years following 1943 and indeed up to 1960, would indicate that if there is the discretion whether to endorse a third or any other conviction, that third conviction or any other conviction may not be endorsed on the licence. Contrary to the impression that has been given in the presentation so far, I would like to complete it by saying, as indeed Senator Durcan indicated, we have been through several revolutions of the wheel in this area. We have been through phases in which we have had the situation that the amendment wants to bring about; we have been through phases that had the situation that we have now, and we have been a long way back through several intermediate phases.

There is, however, one difference in the situation that arises as a result of a decision given last year, to which Senator Howard referred earlier on. I think nobody in the House will disagree with me when I say that that introduces an element into the discussion which was not there on the previous occasions when the Oireachtas was making up its mind to move from one situation to the other. It is a factor we ought to bear in mind in looking at the application of the licensing laws.

The Bill, as I have pointed out, seeks to bring about a certain modest degree of simplification in procedures in the courts. It is not essentially concerned with the fundamental nature of the licensing laws. Without any disrespect to the House, I would say that my view is that this amendment goes a good deal beyond the intentions that I have in mind in putting forward this Bill. It would certainly be proper in the context of a more fundamental review of what is involved in the licening laws.

I do think this is a measure which would be appropriate to take on board in connection with this Bill but it is one that I am prepared to examine in greater depth in the context of one of the future Bills in relation to the licensing laws generally to which I referred earlier on.

Having recalled the history of the particular measure, which I do not think is unambiguous in pointing in one direction or the other, I recognise the fact that the court decision of last year, which was referred to by Senator Howard, has made a difference, in that, as he has pointed out, it is now possible to acquire all of the convictions on the one occasion. It is in the light of that that I would be prepared to look at the intention of this amendment in the context of a future Bill on licensing laws which I intend to bring forward. The House knows that I have two such Bills in mind.

Progress reported; Committee to sit again.