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Question

524. Deputy Mattie McGrath asked the Minister for Justice and Equality the sections and parts of all legislation brought forward by his Department in each of the past four years that have yet to be commenced; and if he will make a statement on the matter. [25182/18]

Answer

Minister for Justice and Equality (Deputy Charles Flanagan): In respect of the Deputy’s question please find the following table which outlines the Acts or parts of Acts brought forward by my Department in the past four years that are awaiting commencement.

9
TITLE OF ACT
ACT/PART/SECTION NOT YET COMMENCED REASON ACT/PART/SECTION NOT YET COMMENCED
Assisted Decision-Making (Capacity) Act 2015 The Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 515 of 2016), brought some provisions of Part 1 (Preliminary and General) and Part 9 (Director of the Decision Support Service) of the Act into operation on 17 October 2016. These provisions were brought into operation in order to progress the setting up of the Decision Support Service (DSS) and to enable the process of recruitment of the Director of the DSS to begin. The remaining provisions of the Act for which the Minister for Justice and Equality has responsibility have not yet been commenced.

The commencement of Part 8 of the Act, which provides for a legislative framework for advance healthcare directives, is a matter for the Minister for Health.

The key preparations are being put in place to allow for further commencement orders for the provisions of the 2015 Act to be made when the Decision Support Service is ready to roll out the new decision-making support options. The Director, who was appointed in October 2017, is also working in a very determined way to get the necessary staff resources, processes, IT system, expert panels, codes of practice and regulations in place in order that the Decision Support Service can be up and running as quickly as possible. There are many complex strands to this work, including involvement of multiple organisations.

Every effort is underway to ensure that the Decision Support Service has all necessary capacity to open for business as soon as possible. The Department has received an outline implementation plan from the Director which contains monthly milestones for realisation of the objective of an active DSS. As time goes on, every effort will be made by all sides to achieve tightening of the timeframes where possible and the situation will continue to be monitored closely by the Steering Group. 

 

While it is not possible at the moment to provide an exact timeframe for the full commencement of the 2015 Act, every effort is underway to ensure that the Decision Support Service has all necessary capacity to open for business as soon as possible.

Children and Family Relationships Act 2015 Parts 2 and 3 of the Act (Sections 4 to 42 inclusive) which provide for parentage through donor-assisted human reproduction (DAHR).

Other provisions of the Act which relate to DAHR have not yet been commenced as they are linked to Parts 2 and 3.

Part 9 of the Act (sections 92 to 99 inclusive) provides for a number of amendments to the Civil Registration Act 2004. No provision of Part 9 has yet been commenced.

Part 11 of the Act (Sections 101 to 134 inclusive) in relation to adoption has not been commenced. This Part of the Act was repealed by the Adoption (Amendment) Act 2017.

Section 177 of the Act in relation to amendment of the Adoptive Leave act 1995

The commencement of Parts 2 and 3, relating to donor-assisted human reproduction, is a matter for the Department of Health.

Other provisions of the Act which relate to DAHR have not yet been commenced as they are linked to Parts 2 and 3 and cannot be commenced until those Parts are commenced.

Some sections of Part 9 cannot be commenced until Parts 2 and 3 are brought into operation. Other sections are dependent on provisions of the Civil Registration (Amendment) Act 2014 being commenced. The Department is liaising with the Department of Social Protection in relation to scheduling the commencement of these sections.

Part 11 relating to adoption has now been repealed by the Adoption (Amendment) Act 2017.

Following adoption of the 34th amendment to the Constitution and its subsequent legislative changes, my Department identified a lacuna in the Adoptive Leave Act 1995 that prevents male same-sex married couples from availing of adoptive leave and benefits.

To address this lacuna, my Department has prepared draft legislative proposals that will amend the Adoptive Leave Act and will afford the same entitlements to adoptive leave and benefits to all couples who are married, co-habiting or who are in a civil partnership, irrespective of gender.

Civil Debt (Procedures) Act 2015 Entire Act Commencement requires systems to be put in place in the Department of Employment Affairs and Social Protection to handle deductions from social welfare payments, and Rules of Court to enable the District Court to deal with the enforcement of court orders (abolition of imprisonment for debtors) and in respect of the processes for attachment of earnings and for the relevant District Court hearings under the Act.

Contact is being maintained with the Department of Employment Affairs and Social Protection in relation to commencement matters.

Civil Liability (Amendment) Act 2017 Whole Act Enacted on 15 November 2017.

Rules of Court have to be prepared in relation to the provisions of the Act regarding periodic payments orders before they can be commenced. These rules of court are expected to be finalised in the coming weeks.

Commencement of Part 4 of the Act regarding open disclosure of patient safety incidents is a matter for the Department of Health.

Court of Appeal Act 2014 Section 73 insofar as it relates to certain enactments specified in Schedule 1 to the Act The Schedule in question provides for the repeal of certain enactments. The repeals yet to be commenced concern the Court of Criminal Appeal and cannot be commenced until such time as all cases before that Court have been brought to a conclusion.

Final confirmation is awaited from the Courts Service as to the timing of the Commencement SI and it is anticipated that this matter can be brought to a conclusion within a matter of weeks.

Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 Sections 67(2)(e); 72(2)(f) (insofar as this paragraph relates to Chapter 2 of Part 12) and 110-121. It was necessary to defer commencement of these provisions, which mainly relate to international cooperation by way of automated searching, comparison and exchange of DNA data or dactyloscopic data, until required logistical arrangements to facilitate this have been finalised. These arrangements include, inter alia, piloting and testing the DNA Database System for international data exchange and obtaining EU Council approval before personal data can be provided to other Member States.
Criminal Justice (Mutual Assistance) (Amendment) Act 2015 Sections 24 and 34 (in so far as S. 65(4A) of the Criminal Justice Act 1994 (15/1994) inserted by that section relates to S.60D of the Criminal Justice (Mutual Assistance) Act 2008 (7/2008)) Both sections refer to the provision of financial penalties. Provisions dealing with financial penalties have not yet commenced.

Section 24 deals with mutual recognition of fines and requires a designation of the appropriate authority by the Minister, which is under consideration.

Criminal Justice Act 2017 Sections 2, 4, 11 and 12

Section 7

Awaiting updates to the Garda Custody Regulations prior to commencement.

Section 7 of the new Criminal Justice Act 2017 amends Section 6B of the Bail Act 1997, as inserted by Section 11 of the Criminal Justice Act 2007 concerning the electronic monitoring of persons on bail.

Criminal Law (Sexual Offences) Act 2017 Part 5 (Sections 28 to 32):

Section 52:

Part 5 was drafted to update the existing incest laws in order to equalise the penalty for incest by a female with that which applies to incest by a male (i.e., life imprisonment). At Report stage in Dáil Éireann the section to increase the penalty for incest by a female was deleted. The General Scheme of the Criminal Law (Sexual Offences) (Amendment) Bill 2018 provides that the penalty for incest for a male and a female be equalised at 10 years. Part 5 will not be commenced until the provisions of this Bill have been considered by the Oireachtas.

This section provides for an amendment to the Criminal Procedure Act 2010 and is consequential to Part 5 of the Bill relating to incest.

Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 Entire Act District Court Rules required to facilitate commencement of the Act are being finalised.
Data Protection Act 2018 Section 7(3) (insofar as it relates to the revocation of the Data Protection Act 1988 (Section 5(1)(d)) (Specification) Regulations 1993 (S.I. No. 95 of 1993), insofar as those Regulations relate to the functions of the Central Bank of Ireland to which Regulation 3 of those Regulations applies);

Sections 25 and 176(b)

Section 30

Not yet commenced pending the making of Regulations under Section 60 of the Act.

Not yet commenced as the necessary procedures have to be put in place to give the Data Protection Commission its own Vote.

The Office of the Attorney General has advised my Department that insofar as Section 30 purports to make it an offence for any company or corporate body to process the personal data of a child for the purposes of direct marketing or profiling, such a prohibition appears to go beyond the margin of discretion afforded to Member States in giving further effect to the GDPR and would conflict with Article 6(1)(f), read in conjunction with Recital (47). Put simply, it is not an option for a Member State to unilaterally prohibit a category of processing activities which might otherwise be lawful under Article 6.1(f). Since commencement of Section 30 could, therefore, give rise to a substantial risk of infringement proceedings against the State pursuant to Article 258 of the Treaty on the Functioning of the European Union, I have requested my Department to clarify the matter with the European Commission.

Domestic Violence Act 2018 Whole Act Enacted on 8 May 2018.

Rules of Court have to be prepared in relation to the provisions of the Act regarding civil domestic violence orders before they can be commenced. Forms and documents relating to domestic violence orders on Courts Service IT systems will need updating.

The commencement of the provisions of the Act regarding new criminal offences of forced marriage and coercive control, and the provision making the relationship between defendant and victim an aggravating factor in sentencing for certain offences can proceed independently of commencement of the provisions relating to civil domestic violence orders.

The Department is liaising with the Department of Employment Affairs and Social Protection regarding the commencement of the provisions that repeal the current exemptions that allow persons under the age of 18 to marry.

Employment Permits (Amendment) Act 2014

(No. 26 of 2014)

Section 35 (a),(b) and (c) and Section 36 Pending finalisation with An Garda Síochána of arrangements for the transfer of the immigration registration function to the Irish Naturalisation and Immigration Service (INIS)
Legal Services Regulation Act 2015 Part 1 – Section 5.

Part 2 – paragraphs (c) to (f) of Section 13(2), Section 31, Section 33 and Sections 35 & 36.

Parts 3, 4, 5, 6 and 7.

Part 8 – Sections 99 to 117 and Section 121

Parts 9, 10, 11, 12, 13, 14 and 15

Parts 1 and 2 of the Act were commenced as necessary to support the setting-up and appointment of the Legal Services Regulatory Authority which held its first meeting on 26 October 2016. During its first year the Authority, under Sections 118 to 120 as commenced, also completed a series of time-bound public consultations and reports on new legal business models. The Authority is now engaged in the essential planning and capacity building for the roll-out of its remaining functions under the Act which will be supported by the Department of Justice and Equality in the commencement of the relevant provisions concerned. Part 15 does not fall under the remit of the Authority.
Paternity Leave and Benefit Act 2016 Section 2(1)(b)(iii) The Section cannot be commenced until the Assisted Human Reproduction Bill 2017 is progressed through the Oireachtas and is enacted.