The Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D. today announced the publication of the Civil Law (Miscellaneous Provisions) Bill 2011.
The Bill provides for amendments to provisions across the range of civil and regulatory law including:
• amendment of the Civil Legal Aid Act 1995 to allow the Legal Aid Board to give legal advice in relation to criminal matters to alleged victims of human trafficking (Part 2),
• to amend the law relating to civil liability for acts of good samaritans and volunteers (Part 3),
• strengthening of the provisions of the Private Security Services Act 2004 in regard to licensing, enforcement and the collection of fees (Part 4),
• support for codes of practice on the sale of alcohol (Part 5),
• amendments of the Equality Acts to improve, inter-alia, the procedures of the Equality Tribunal (Part 6),
• amendments to the Bankruptcy Act 1988 to allow for application for a reduction in the discharge period from 12 years to 5 years and to provide for automatic discharge of bankruptcies existing for 12 years or more (Part 7),
• amendment of the Family Law (Maintenance of Spouses and Children) Act 1976 to strengthen the existing provisions for the enforcement of family law maintenance orders (Part 8),
• amendment of the Coroners Act 1962 to provide for the amalgamation of districts in Dublin and other administrative matters (Part 9),
• provision for variation of fees for persons who apply for citizenship (Part 10),
• restatement of power of arrest of non-nationals who fail to produce a passport (Part 11),
• amendment of the Land and Conveyancing Law Reform Act 2009 (Part 12),
• amendment of law to permit the Property Registration Authority to register certain rights of way in the land registry without need for court order (Part 13),
• amendments with regard to qualifications and appointment of Taxing-Masters (Part 14),
• extension of the powers of the court to order protection of persons in cases of domestic violence, amendment of the Personal Injuries Assessment Board Act 2003, amendment of the Official Languages Act 2003 and amendment of the Court and Court Officers Act 1995 (Part 15).
Speaking on its publication, Minister Shatter said: "This Bill introduces a number of important reforms in our law across a broad range of areas, These include bankruptcy law, the enforcement of maintenance orders, additional domestic violence protection, the organisation of coroners in the Dublin area, protection for good Samaritans and those engaged in voluntary works and the appointment of Taxing-Masters to the High Court."
The Minister is of the view that the very many positive changes to the law proposed and the efficiencies and cost savings that may be expected require that every effort be made to attempt to secure the passage of the Bill in this Session
The Bill and the Explanatory Memorandum will be available on the Oireachtas website www.oireachtas.ie
24 June 2011
Note to Editors
Main features of the Civil Law (Miscellaneous Provisions) Bill 2011
The Bill provides for amendments to the Civil Legal Aid Act 1995 to permit the Legal Aid Board to provide legal advice in relation to criminal matters to alleged victims of trafficking offences. This amendment will support, on a legislative basis, Ireland's recent ratification of the
• Council of Europe Convention on Action Against Trafficking in Human Beings,
• the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime, and
• the Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA.
The UN Protocol came into effect in Ireland on 16 July, 2010, the Council of Europe Convention came into effect on 1 November, 2010 and the EU Directive entered into force on 5 April, 2011.
Civil Liability of Good Samaritans and Volunteers
A noteworthy part of the Bill, is a new provision in the law, concerning the civil liability of good samaritans and volunteers, following a Report from the Law Reform Commission on the matter in 2009.
Part 3 of the Bill inserts a new Part in the Civil Liability Act 1961 to implement recommendations of the Law Reform Commission on the civil liability of good samaritans and volunteers.
The new provisions provide protection from liability for persons described as 'good samaritans', who act in good faith, without expectation of payment or reward and in a way that does not constitute gross negligence, to provide assistance, advice or care during an accident or emergency. Protection is also being provided from liability for persons involved in voluntary work for charitable or other purposes for the benefit of society, including sports, recreation and rescue. Volunteers are required to act in a way that does not constitute gross negligence, while the volunteer organisations, including sports, recreation and rescue, with whose authorisation they operate, will be held to the higher standard of ordinary negligence.
While the Bill sets out an ordinary standard of care for volunteer organisations, provision is made for account to be taken of the benefits accruing to society as a result of the organisation’s work in determining whether it is just and reasonable to impose liability.
Codes of Practice in regard to the sale of alcohol
The Bill contains an important proposal intended to form part of the Government's strategy to promote compliance with licensing law and to combat alcohol-related harm. It provides for statutory support of Codes of Practice in relation to licensing matters with a view to promoting and supporting compliance by licensees. Such a Code may be prepared following appropriate consultation and published by the Minister or, if the Code has been drawn up by some other body, be approved of and published by the Minister. Failure to comply with the provisions of such a Code by a licensee will constitute a ground on which an objection to renewal of the licence in question may be lodged.
The Bill provides for a number of amendments to the Bankruptcy Act 1988. The most significant amendment is to section 85 of the Act with regard to discharge from bankruptcy. The Bill will
(i) reduce the application period to the court for discharge from bankruptcy from 12 years to 5 years, subject to the existing conditions in the law being met, and
(ii) provide for the automatic discharge of bankruptcies on the 12th anniversary of the adjudication order. The discharge of these so-called "legacy bankruptcies" should affect more than 300 cases in the system.
In order for the court to consider an application for discharge from bankruptcy after 5 years, the bankrupt will have to have discharged the expenses, fees and costs of the bankruptcy and the preferential payments (which primarily concern outstanding taxes due from the bankrupt at the date of the order of adjudication, local rates, all wages or salary or accrued holiday remuneration in respect of services rendered to the bankrupt and any payments due by the bankrupt pursuant to any scheme or arrangement for the provision of superannuation benefits). The court will require to be satisfied that the estate of the bankrupt has been fully realised, all after acquired property has been disclosed and that it is reasonable and proper to grant the application.
The Minister has decided to avail of the opportunity in this Bill to introduce these measures so as to bring about some initial early reforms to the law on bankruptcy in the short term. This fulfils a key commitment in the Programme for Government to reduce the discharge time for bankrupts. Major reform of this area of the law will be effected through the Personal Insolvency Bill which is expected to be published in early 2012 and is being developed in the context of a commitment under the EU/IMF Programme of Financial Support for Ireland.
Family Law (Maintenance of Spouses and Children) Act 1976
The Family Law (Maintenance of Spouses and Children) Act 1976 is amended so as to de-couple family law maintenance debt from civil debt. Following the High Court judgment in the McCann case in 2009, the Enforcement of Court Orders (Amendment) Act 2009 inserted a series of amendments designed to protect debtors and impose obligations on the creditor. However, this has given rise to difficulty in some family law cases. The amendment to the law is based on the premise that a court has already deliberated in setting an appropriate level of maintenance and that if the debtor breaches that order without a significant change in his or her circumstances, that breach will constitute contempt of court and can be punished by imprisonment. As these are civil contempt proceedings, both the creditor and debtor will be entitled, subject to the usual criteria, to civil legal aid under the existing provisions of the Civil Legal Aid Act 1995.
This Part amends the Coroners Act 1962 to provide for the amalgamation of the existing Dublin City and County Coroner Districts in order to ensure the best use of resources in the Dublin area and a better coroner service to bereaved people in the District which accounts for approximately 40% of the national coronial caseload.
The Bill amends the Domestic Violence Act 1996 so that a parent may now apply for a safety order against the other parent of their child, even where the parents do not live together and may never have lived together. This ensures that the full protection of the law is available where access to a child is an occasion of intimidation or even violence between disputing parents. Other amendments to the Domestic Violence Act mean that the protections of the Act are available on the same basis to unmarried opposite-sex couples and same-sex couples who have not registered a civil partnership. In addition, couples are no longer required to have lived together for a minimum period of time before one of them can obtain a safety order.
The amendments to the Employment Equality Act 1998 (as amended) and the Equal Status Act 2000 (as amended) are intended to improve the efficiency and user friendliness of the Equality Tribunal in handling complaints and to take into account legal decisions at both national and EU level. Provision is made for extension of the deadline for applications to resume hearings in situations where mediation has failed and, where the parties do not object, for cases to be dealt with on the basis of written submissions only. It also increases the maximum amount that may be awarded in employment equality cases to 2 years remuneration or €40,000 whichever is greater to provide for better redress in situations of low paid employment. Under the existing law the maximum amount that may be awarded in such cases is 2 years remuneration, which may be significantly less than €40,000 in some instances.
The taxing master of the High Court adjudicates on the sum of legal costs payable when an order of cost is made against a litigant. The Taxing Master also determines disputes as to legal costs payable when a client of the legal profession disputes legal costs charged by their own solicitor and/or barrister. The reform proposed implements a recommendation of the competition authority by extending eligibility for such appointments to barristers and professional legal costs accountants. At presents, solicitors only can be appointed to the position of Taxing Master. This is an interim measure as more substantial reforms applicable to this area will be contained in the Legal Services Bill which is presently being prepared and is expected to be published in September.
Amendment to the Immigration Act 2004
The principal amendment to the Immigration Act 2004 is the insertion of new sections 11 and 12 in response to the High Court ruling on 25 March, 201 in the case of Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008), that section 12 is inconsistent with the Constitution.
On 25 March 2011, the High Court, in the case of Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008), ruled that section 12 of the Immigration Act, 2004 is inconsistent with the Constitution (in particular Article 38.1 which provides that no person shall be tried on a criminal charge save in due course of law and with the guarantee in Article 40.4.1 that no person shall be deprived of his liberty save in accordance with law). Mr Justice Kearns held that while section 12 was designed as an immigration control mechanism, "its vagueness is such as to fail basic requirements for the creation of a criminal offence. As drafted it gives rise to arbitrariness and legal uncertainty. It also offends the principle that a person be not obliged to incriminate himself."
The Immigration Act 2004 is the primary statute governing the State’s operation of controls on entry into and presence in the State of non-nationals. Section 12 provided a fundamental control insofar as it required a non-national to produce on demand a valid passport or other equivalent document which establishes his or her identity and nationality. The absence of such a power has the potential to greatly inhibit the detection of persons intent on evading immigration controls. It is important, therefore, that the appropriate amendments be made to the 2004 Act to put in place effective controls that are consistent with the Constitution.
The opportunity is also being taken to amend section 19 of the 2004 Act to provide for a flexible system of fees for certain immigration services.
A similar amendment is being proposed to section 17 of the Irish Nationality and Citizenship Acts 1954 to 2004 to enable the Minister to introduce a flexible system of fees for citizenship applications.
Registration of rights of way
The main purpose of the amendments to the Land and Conveyancing Law Reform Act 2009 and the Registration of Title Act 1964 in Parts 12 and 13 of the Bill is to permit the Property Registration Authority to register rights of way and similar property rights without a court order where there is no disagreement between the parties concerning entitlement to the right concerned. At present, a court order is required in order to register such rights under the 2009 Act.
The proposed amendments will allow a land owner who claims to be entitled to a right of way on the basis that the relevant requirements set out in the Land and Conveyancing Law Reform Act 2009 have been met, to apply to the Property Registration Authority to register that right on the owner's Land Registry folio and permit the Authority to do so where the claim has been substantiated to its satisfaction.
In order to be satisfied that the owner’s claim has been substantiated and is not the subject of a dispute, the Authority will serve notice on the relevant parties. The detailed notice and other statutory requirements will be published in the form of a statutory instrument. The Authority will also publish ‘practice directions’ for the guidance of practitioners.
The amendments to the 2009 Act also extend the 3-year period during which existing rights of way must be registered to 12 years, i.e. from December 2012 to December 2021.
Other areas covered by the Bill include technical amendments to the law concerning the Equality Acts, private security services, Personal Injuries Assessment Board Act 2003 and the Land and Conveyancing Law Reform Act 2009 and the Registration of Title Act 1964.
The Civil Law (Miscellaneous Provisions) Bill 2011 contains many of the elements of the Civil Law (Miscellaneous Provisions) Bill 2010. Parts 1 to 6 and 8 and elements of Part 15 are the same.
However, the Minister has had the opportunity to significantly amend the provisions in Part 7 (Bankruptcy) and to add new Parts 9 (Coroners), 10 and 11 (Citizenship and Immigration), 12 and 13 (Land and Conveyancing Law Reform Act 2009 and Registration of Title Act 1964) and 14 (Taxing-Masters). In regard to Part 15 (Miscellaneous), the Minister has availed of the opportunity to add new provisions in regard to the Personal Injuries Assessment Board Act 2003, the Official Languages Act 2003 and certain Courts related matters.