Vol. 113 No. 12
I wish to bring to the notice of the House two misprints in amendment No. 7 on the printed list of amendments. These are:
(1) "section" should appear instead of "sections" in the second line;
(2) In subsection (1A) "conviction" should appear instead of "correction".
Am I correct in my understanding that I must speak on all amendments in my name together at this stage?
One will be taken at a time.
I move amendment No. 1:
In page 3, line 16, after "person" to insert "or company".
The purpose of amendment No. 1 is simply to seek clarification of the new section 15 (1) (a) of the Enforcement of Court Orders Act, 1926, as inserted by section 1 (1) of this Bill. That provides that:
Whenever a debt is due on foot of a judgment, order or decree of a competent court by a person (in this Part of this Act referred to as "the debtor") to another person (in this Part of this Act referred to as "the creditor") the creditor may avail of the facilities of this Bill.
The purpose of this amendment is simply to seek clarification as to whether the word "person" excludes or includes a limited liability company. A debt may be due to a limited liability company. Am I right in saying that the Enforcement of Court Orders Acts are only available to individuals and are not available to a limited liability company? If they are available to a limited liability company as creditor should that not be inserted in this section?
The Enforcement of Court Orders Act provisions are designed, as I said on Committee Stage, to apply to natural persons and not to companies. The law as it stands makes quite separate provision as to the manner in which debts may be enforced against a company, and separately for the appointment of a receiver and the liquidation of the company in cases where that is appropriate. The statute in question here is specifically designed in relation to natural persons.
That is enforcement against; I am talking about enforcement by the company. Obviously, it cannot be enforced against a company; you cannot commit a company. It would appear that a company cannot actually enforce a debt under this section, as creditor.
It is a different matter. The provisions we are talking about here deal with the persons against whom the enforcement is being sought, and they are natural persons, the debtors.
But I am talking about a creditor, the definition of the phrase "the creditor". It seems that the definition of the phrase "the creditor" does not include company?
No.
This is a matter which was raised on Committee Stage. We did not have the benefit of Senator Durcan at that Stage, and it is good to have him now. I see the point that Senator Durcan is making about this matter. What is proposed to be introduced is a new section, Enforcement of Court Orders Act, 1926. It refers to "where a debt is due by a person to another person..." That person, in my opinion, is subject to statutory definition. That person, being the creditor includes a company unless it is excluded. That was the way I interpreted it, that the person being the creditor, is a person in the way in which persons are normally used by a Parliamentary Draftsman to include a company. I may be wrong in that. That was my interpretation of it.
We are dealing here with the provisions in Part II of the Enforcement of Court Orders Act, 1926. Part II of that Act is clearly designed to apply to natural persons and not to companies. That is the reason that the provision is framed in this way.
May I remind Senators that the proposer of an amendment may close the debate on that amendment, but no other Senator may speak more than once on each amendment.
Amendments Nos. 2 and 3 are related and may be discussed together.
I move amendment No. 2:
In page 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."
The purpose of amendment No. 2 is simply to extend somewhat the scope of the new section 15 (1) (4) of the 1926 Act. The subsection as drafted reads:
The statement of means shall, not less than one week before the sitting of the District Court in which the examination is to take place, be lodged with the District CourtClerk for the District Court Area wherein the debtor's examination is to take place.
The purpose of this amendment is to give the creditor an opportunity of considering the means and the calculations of means which the debtor relies on. If this is not done and if the creditor does not have the opportunity, before coming into court, of considering the means which the debtor relies on, if the creditor does not have the opportunity of investigating those means, than the creditor may very well have to seek an adjournment. My understanding of this entire new section was that it was an attempt to speed up the Enforcement of Court Orders Act. If my amendment is not accepted, then the motive behind this section, as I see it, will be circumvented. If the creditor does not have the opportunity of knowing what the means of the debtor are, then he will have to investigate and that takes time.
The provision in subsection (5) to the effect that the creditor should be entitled on the payment of the prescribed fee, to inspect and take or obtain copies of the statement of means, when lodged, does not get over the difficulty either. To suggest that it does get over the difficulty means that the creditor or his solicitor would have to, before court go to the office of the District Court Clerk and ascertain whether a statement of means had been filed or not. A statement of means may have been filed or a statement of means may not have been filed. As the Bill stands the onus is now on the creditor, before the court hearing and within a time span of seven days, to go to the District Court Clerk's office and to obtain a copy of something that may or may not be there. That is time-consuming from the point of view of the District Court Clerk's office, where there are already staffing difficulties and where there is already a considerable overwork load. It is also time-consuming from the point of view of the creditor. But in terms of the practicality of it, if a court document is filed by one party with a court officer, then a copy of that document should be filed or served on the other side. If one examines the accepted practice existing in all our courts in relation to the service of documents which contain information upon which people rely, one finds that a copy is always served on the other side.
Here we have in this Bill, in a sense an attempt to depart from that practice. The Minister may say he is not departing from the practice, that the practice does not exist in relation to statements of means procedure, but the whole procedure can be made more meaningful. The excess work which will be involved can be cut out if the amendment is accepted. It is an amendment which does not impose any difficulty from the point of view of the courts administration if accepted, other than to ease the burden that they are faced with. From the point of view of practice in terms of a creditor or the solicitor of a creditor — and a creditor will generally have a solicitor — it certainly would make the practical dealing with these applications much easier. If the amendment I have proposed is not accepted, then it would drag out these proceedings in the District Court. It will waste time in the Court Clerk's Office; it will waste time in solicitors' offices; it will waste time for creditors.
Is the amendment seconded?
I second it.
As I pointed out on Committee Stage, the purpose of section 1 here is to simplify the preliminary procedure for the enforcement of a judgment debt. It simplifies it in this case as proposed here, by eliminating a separate hearing that under section 15 of the Enforcement of Court Orders Act, as it stands, must be held so that an order can be made for the attendance of a debtor so that he may be examined as to his means and also to order a lodgment by him of a statement of means. We are eliminating a hearing and simplifying it. As things stand at the moment, the debtor has no notice of the proceedings under section 15 as it stands; he does not appear in those proceedings. He is not heard at the hearing that is being dispensed with. Therefore we are eliminating that step. In a way that does not alter the balance between the debtor and the creditor. The amendments which have been put forward would alter the balance between the debtor and the creditor and would therefore go further than the straightforward simplification of a procedure, which is the intent of this Bill.
I must say I totally disagree with the Minister's line of argument. I regret that I have not had sufficient agitating ability within me to agitate him into accepting my amendments. I will withdraw them but in a spirit of disagreement, reluctantly.
Amendments Nos. 4 and 6 are alternatives and may be discussed together. Amendment No. 6 can only be moved if amendment No. 4 is withdrawn.
I move amendment No. 5:
In page 6, line 15, after "was" to insert "knowingly".
The purpose of amendment No. 5 is to insert the word "knowingly" in section 4 (3) of the Bill. This is the subsection which creates an offence where a licensee for the purpose of renewing his licence under the new procedure furnishes false or misleading information. I believe the word "knowingly" should be inserted here by virtue of the nature of this offence, that is, an offence which lies within the administrative capacity of an individual. It is not an offence which relates to the conduct or management of a licensed house. If the section stands as it is it may arise that information which is false or misleading may be given unintentionally and somebody may be prosecuted on that basis. Under those circumstances it would be wrong to record the conviction. For that reason I move this amendment which would suit those particular circumstances.
Is the amendment seconded?
Yes.
I regret to say that I oppose the amendment. Subsection (3) is designed to cater for a situation where false or misleading information is supplied to the Revenue Commissioners by a person seeking the automatic renewal of his licence under the new procedure which is set out in section 4. The court will have power to impose a fine not exceeding £300 where a licence is renewed on the basis of such false and misleading information. Under subsection (4) the court would have a discretionary power to order forfeiture where there has been a conviction. The insertion of the word "knowingly" in this subsection would make it virtually unenforceable. Both Senator Durcan and his seconder will know perfectly well what I mean when I refer to the difficulties that have arisen in other areas with the use of that word.
We cannot argue with the Minister there.
I really cannot see why the Senator is seeking to make this amendment. It would be more logical to propose that I should not proceed with that part of the measure at all. I must oppose the amendment.
On Committee Stage of this Bill I accepted the case which was made, that there was a necessity for suitable provisions to deal with powers of enforcement of District Court orders in relation to the jurisdiction under the Guardianship of Infants Act, 1964, conferred on it by section 15 of the Courts Act, 1981. I expressed doubts at that stage about the completeness of the approach advocated by Senator O'Leary and Senator McGuinness, which covered only orders made under section 11 of the 1964 Act. I have discussed the matter with the draftsman and I am proposing an amendment here which would cover the enforcement of orders made by the District Court under the 1964 Act, covering orders under section 7 or section 11 — that is, containing a direction regarding the custody of an infant or the right of access to an infant — and orders for maintenance under section 7 (6) or section 11 (2) (b) and any variation order under section 12 in relation to such a maintenance order. I am putting forward this amendment in order to meet the main substance of the amendment put down in the names of Senator O'Leary and Senator McGuinness. I hope that the House will find that we have dealt with the matter in an adequate fashion. I am glad to be able to say that I take fully the point that underlaid the amendment originally proposed.
I support the amendment. It does properly and fully bring into operation the Guardianship of Infants Act in so far as it relates now to the District Court proceedings. I support the Minister in that regard.
I do not understand subsection (4). The Minister might like, at some time, to explain it to me. I only got the amendment today. Assuming that it does what the Minister says and that subsection (4) does not in any way change that, I support it and I thank the Minister for listening so carefully to what Senator McGuinness and I said as a result of representations we received. The area of family law will be more efficient and a little cheaper for litigants and for the State as a result of this amendment. I support it and I thank the Minister sincerely for his decisive intervention in this matter.
Amendments Nos. 7 and 8 are alternatives to amendment No. 9. Nos. 10 to 16 on additional lists are consequential; so amendments Nos. 7, 8 and 9 and amendments Nos. 10 to 16 may be discussed together.
Amendment No. 7 is proposed following a long discussion which we had here at Committee Stage about the situation in relation to endorsable offences and the consequences that can follow in relation to such endorsable offences.
An amendment was put forward by Senators Howard, Durcan and Cregan at Committee Stage to deal with their concern in this regard. I have to say, as I indicated at Committee Stage, that I was very impressed by the arguments put forward by the Senators who spoke on that amendment — I use the word "impressed" as much in its physical sense as in its intellectual sense. Great emphasis was placed, quite rightly, on the severity of the present provision. It was pointed out that a liquor licence may be forfeited because of offences relating to prohibited hours on occasions when the licence holder, in spite of his best efforts, may not be able to clear his premises before the end of permitted hours.
I have thought very long and deeply about the arguments put forward at Committee Stage and I have decided to accept the principle of the amendment. But I would consider that its effects should be confined to offences relating to prohibited hours. Apart from anything else, that was the context in which the amendment was first put forward and that is the central concern which has to be met. That matter is covered in amendment No. 7. This proposes that on conviction of an offence relating to prohibited hours, the District Court will have discretion as to whether or not to endorse the conviction of the licence. There is already provision in section 27 of the Intoxicating Liquor Act, 1927, under which an appeal lies to the Circuit Court against conviction of an endorsable offence. In view of the discretion as to endorsement now proposed to be given to the District Court I consider that it would be appropriate to give a corresponding discretion to the Circuit Court when conviction of the offence comes before that court on appeal. That is the reason for amendment No. 8, which makes the corresponding provision.
Amendment No. 9, which also relates to endorsements, has been submitted by Senators Durcan and Howard. It is similar to the amendment which they put forward at Committee Stage and I think, if I may say so without offending the Senators, that amendments Nos. 7 and 8 which I have put forward deal more specifically and clearly with the concern we discussed at Committee Stage. I would hope, therefore, that amendment No. 9 could be withdrawn in favour of amendments Nos. 7 and 8.
May I begin by saying that Senator Durcan and I willingly agree to withdraw amendment No. 9? I very willingly accept the Minister's amendments Nos. 7 and 8. He has told us what the effect of both these amendments will be, that they meet in large part — almost in its entirety — the spirit of our amendment No. 9. That is, they have the effect, in No. 7, of restoring discretion to the District Court, and in No. 8 of extending that discretion also to the Circuit Court.
I want to sincerely thank the Minister for having met our case in such a straightforward manner. I would like to compliment him on three specific points. First, I thank him for responding so positively to the Seanad debate at Committee Stage on 27 May. Secondly, I thank him for recognising that a need existed to rectify and to eliminate what was an unreasonable penalty. Thirdly, I thank him for acting to restore justice in what is a very sensitive area.
I might very briefly outline the effects of the Minister's amendment. Heretofore, the position was that a publican having people on his premises outside specified times could be summoned and could be brought to court, and if convicted there would obtain an automatic endorsement on his licence. Three such endorsements led to automatic forfeiture. The District Court and, indeed, the Circuit Court had no discretion. After the District Court virtually no appeal existed once the offence was proved. The particularly savage aspect of the penalty was that once a licence was forfeited neither the house to which it applied nor the person who held that licence could again obtain one. Therefore, we had the situation where a lifetime spent in building up a business could lie in ruins, and the hardship consequent on that could, in fact, involve a family. That position has existed from 1960. A number of licences have been lost in the past 26 years. A number of others are presently at risk. As a result of the Minister's decision now, the position will that a publican can be summonsed, convicted and fined. He can also have his licence endorsed if the court thinks that the nature of the offence deserves such a penalty. Three endorsements will still lead to forfeiture but that can only happen if a publican is obviously, consistently and regularly abusing the law. I can say that where these circumstances prevail forfeiture could, indeed, be deserved. The important thing is that the courts will have discretion. I am sure they will bear in mind the circumstances and the events that relate to or surround the particular offence. I am sure they will also have regard to the record and the character of the publican when deciding whether, in relation to a particular offence, that an endorsement is justified.
The Minister has put in the additional safety factor there of permitting appeal to the Circuit Court which, as he says, will also have discretion in relation to imposing an endorsement.
I wish to make two other brief points. The first one is that during the nine years I have been in this House I have attempted to persuade five of the Minister's predecessors of the need and the desirability of taking the step he has now taken. All I want to say is that if success can be measured by results, full credit must go to the Minister for Justice, who is with us here this evening. He has been a short time in this particular office but he has faced up to the situation and despite many other pressing matters decided that the wrong which existed had to be put right. He has done that. The other aspect — and I commented on it briefly on the last occasion when we discussed this — relates to, perhaps, the capacity and the integrity of this House to influence legislation. Many of us feel with justification that we are unfairly attacked and villified on many occasions. The sum total of a lot of the criticism that is levelled at this House is that it is not a very worthwhile institution and that it can have little or no effect on legislation. The acceptance by the Minister of the point of view that was so forcibly put forward here a months ago is proof that this House has the capacity to fulfil its constitutional role. The livelihoods, the living and the security of 11,000 publican families in this country were at serious risk until the Minister moved his amendments here this evening. The risk to these people was recognised in this Chamber. The commitment of the Members of this House, plus the action of a fair minded Minister, has corrected this wrong.
The final observation I want to make in relation to this particular result is this: it is well known that three Government backbenchers signed the original amendment. Its intent is similar to what the Minister has now brought forward. Our purpose was to right a wrong there. Our purpose was, through having that amendment on the Order Paper, to persuade the Minister that justice required that he would respond in a positive manner to what we were proposing. I am quite sure that people from other parties in the House would also have willingly signed. We were three Government backbenchers there. We put forward that proposal with no embarrassment to us or to the Government. The Minister listened to the debate here. He saw the validity of our case and that there was support from all sides for it. He has acted in response to the honest arguments put forward here. The outcome is a credit to the Members of this House who supported the idea and to the Minister who responded so magnificently.
May I conclude by saying that, as is well known, I am here on a vocational nomination from a body representative of public opinion. I represent the views, the feelings and the expectations of 11,000 publicans throughout the country. I feel I can with justification convey to the Minister and to the House the satisfaction and thanks from all of these on the result that has been achieved from the Minister's amendments.
As the co-sponsor with Senator Howard I concur with him in withdrawing the amendment. In doing so I, too, would like to express my thanks and appreciation to the Minister for his willingness to take on board the idea we enunciated here both at Second Stage and again at Committee Stage. We appreciate very much the fact that the Minister has taken the principle on board and that it now becomes part of the already complex licensing code.
Back in March 1985 I signed, with Senator Cregan and Senator Howard, a Private Members' Bill which, if circulated and published, would have had the effect of what we are trying to do. It was a Private Members' Bill which contained provisions very similar to the provision which we put forward at Committee Stage and again at Report Stage. The fact, Minister, that you have agreed the principle underlying that is something which is appreciated. As Senator Howard said, the existing law contained a Draconian measure in so far as licensees were concerned. It certainly was unreasonable that a District Court had no power and no control over a sanction which could have very far-reaching effects. It was a sanction which could prevent an individual from ever again holding a licence and a sanction which could prevent a particular house being licensed.
I welcome the fact that both our District and Circuit Courts have discretion in that regard. I cannot disagree or quibble with the limitation imposed by the Minister to the effect that the discretion would only operate in relation to after hours offences. It is wise that our courts should have this type of discretion. Our district justices and our Circuit Court judges have a grasp and a knowledge of a particular area and, indeed, have a grasp and a knowledge of people in a particular area. I believe it is right that this discretion should be conferred on them in relation to licensing matters.
As Senator Howard has said we have seen in the past many individuals lose their licences. We have seen the trauma and the effect it can have on somebody who has built up a substantial business over a great number of years. This amendment is reasonable. It is one which can be implemented in a reasonable way by giving discretion to the courts, while at the same time giving the courts the power to apply the ultimate sanction if they so wish. I join with Senator Howard in thanking the Minister for withdrawing amendment No. 9.
I briefly join with the other Members in dealing with this amendment. Publicans throughout the country have invested huge amounts of money in buying property, on extensive renovations, in building up their trade and working for their families. After all that, the situation has been that the publican's licence will be forfeited for a few minor offences over which he has little control. Customers nowadays tend to go to the licensed premises late in the night. It has been a feature of life in public houses over the years that there will always be some customers who will be difficult to get off the premises. Once a licence is lost neither the publican nor the premises can ever be licensed again. The position up to now has been that the justice has no discretion, once he convicts a publican he must endorse the licence.
This is an important and welcome change. The important thing now is that the courts have discretion. This change must be seen and welcomed by all publicans as something which they have been anxious to achieve over the years. I would like to thank the Minister and congratulate him for examining this serious problem and for coming back, not fully, but very nearly, with what most of the Members of this House were trying to achieve.
I would like to thank the Minister for his consideration. I know very serious points were made very strongly by the speakers. There was a very unfair situation prevailing. Like Senator Howard, I congratulate the Minister on his work during the short period of time he has been in this office. The Minister is very conscious of what is going on. We are very proud that this has been done in this House rather than in the other House. The impression that this House is only here for its own good is not true. I would hope that from this we can proceed further. We do not like the idea of people drinking after hours. It is very much appreciated that the Minister has recognised this. I would like to thank the Minister for his consideration.
I will reply briefly to the remarks that have been made. I am not going to rehearse the argument again. It has been very clearly set out. The fact remains that this is an important change we are making. It is important from several points of view.
At the slight risk of being disorderly, I want to refer briefly to the fact that I intend to bring forward in the autumn a further Bill concerning liquor licensing which will deal with some of the other concerns which I know are shared by this House. Those measures, together with what is here today, will themselves constitute a fairly significant change in the corpus of the licensing laws. For that reason this House should agree with me. I strongly recommend to the House — and it is my intention to follow up on this — that we should look at the operation of the provision that we are now discussing after a period of, say, three years in order to see what the effect of it has been in the context of the other changes to be made in the licensing laws over that period.
The consequential amendments on the additional lists to amendment No. 7, that is Nos. 10, 11, 12, 12a, 13, 14, 15 and 16 have been discussed with amendment No. 7.
I would like to ask that a small correction be made in the text of this amendment, that is, that a comma should be introduced after the words "section 9" in the third line of the amendment. The substitution would be: "section 9, and section 10,".
