On 06 August 2020, the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the “Act”) was signed into law, aimed primarily at responding to the challenges that the Irish legal profession and courts system face in the context of the COVID-19 pandemic and the consequent impact on the administration of justice.
Whilst there has been much consideration of the implications of the legislation for civil and criminal proceedings, the Act also has potentially significant implications for regulatory proceedings and hearings before public bodies, the effects and import of which are considered below.
1. Remote Meetings of Public Bodies
Part 5 of the Act addresses hearings of public bodies and, under section 29, provides that these may take place remotely between some or all of the members of the body who are not all in one place, but each of whom is able (directly or by means of electronic communications technology) to speak to each of the others and to be heard by each of the others.
In this regard, it would appear that the Act envisages situations whereby the members of the body may participate remotely in part, with some members being present physically at a meeting, together with situations where the meeting is conducted entirely remotely.
Importantly, the provisions of the Act are without prejudice to previous enactments and, as such, are supplemental to any previous legislative basis upon which a body may have been entitled to conduct business of this nature remotely.
2. Ministerial Order
In order for the provisions under the Act to apply, the body must first be designated by the relevant Minister.
To date, it appears that only one such Ministerial designation has been made under the Act which was in respect of the Adoption Authority under S.I. No. 335/2020 - Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (Remote Meetings and Remote Hearings of State Body – Adoption Authority of Ireland) Order 2020.
In the context of ministerial designation, it is worth noting that the designation may be in respect of a public body generally or in respect of a category of meetings for a particular body. For the purposes of the Act, “body” is defined as a body established by or under an enactment, or a body or person empowered under an enactment to hold a hearing for any purpose.
3. Procedure relating to Remote Hearings
Section 31 of the Act addresses situations where hearings (as opposed to meetings) are held remotely by public bodies. Notably, the provisions allows for the following:
- attendance of persons before meetings by remote means;
- references to hearings to include remote hearings;
- the provision of documentation to a designated body by electronic means or by post, where physical production may otherwise be necessary.
- In addition, section 31 allows for the designated body to make such arrangements and to adopt their practice and procedures to allow for remote hearings, in accordance with the Act.
4. Potential Prejudice
- Perhaps most significantly in the context of Part 5 of the Act is section 31 (2) which addresses situations with potential prejudice to a ‘person concerned’ appearing before a designated body or committee thereof, by virtue of a hearing proceeding remotely. To that end, the section provides that the provisions of section 31(1) shall not apply where the application of it would be unfair to the person or, indeed, otherwise contrary to the interests of justice.
- In such situations, the designated body may consider that a remote hearing would not be appropriate or in the interests of justice either having considered the matter of its own volition or, in the alternative, following the raising of the matter by the person concerned and the making of representations on his/ her behalf.
The reforms as they relate to public bodies and regulatory hearings in particular have the scope to significantly change the manner in which regulatory hearings, to include Fitness to Practise Inquiries; sanction hearings and meetings of committees of public and regulatory bodies will be conducted, particularly during the currency of the pandemic.
Those bodies to be designated by Ministerial Order will be monitored with interest, as will the consequent update to practice and procedure before the various regulators which will no doubt follow. Perhaps most interestingly, situations where section 31 (2) is considered in the context of the appropriateness or otherwise of remote hearings in specific circumstances will make for particularly difficult considerations by designated bodies and Committees of Inquiry in the coming months and will be followed with much interest.
Our previous article relating to the implications of the Act for Civil and Criminal Law can be accessed here.
For further information on any of the issues raised above, please contact Lyn McCarthy firstname.lastname@example.org.Back to Full News
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About the Author
Lyn is an Associate Solicitor in the Healthcare team at Hayes Solicitors. Lyn advises clinical practitioners and indemnity bodies in respect of the defence of medical negligence claims and also in respect of the defence of professional disciplinary matters before Committees of inquiry.