Wednesday, 8 July 2009
Seanad Eireann Debate
An Cathaoirleach: Before we commence I remind Members that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. In addition, each amendment must be seconded.
determine whether payments (or any portion thereof) to the debtor of a particular class or description specified by the application are earnings for the purpose of the order, and the employer shall give effect to any determination for the time being in force under this section.
so as to enable the court to make an order directing the Minister to deduct sums from any amounts, not below the protected welfare rate, payable to the debtor by way of income support, in order to secure the payment of any sum which is or forms part of the court order.
This amendment provides for attachment of earnings to discharge or contribute towards the payment of a debt. It arises from an efficiency argument as it would save court and Garda time and protect the interests of the creditor in receiving some satisfaction for a debt that is due. It would also obviate the need to invoke the rather draconian measure of imprisonment which gives no satisfaction to a creditor in the discharge of a debt.
It also arises based on the premise of the Bill which is to deal with the implications of the judgment of Ms Justice Laffoy on 18 June 2009 in the Caroline McCann case which specifically refers to the concept of attachment. Ms Justice Laffoy mentioned the proportionality test set out in the judgment in Heaney v. Ireland which states that intervening in the liberty of a person may be justified depending on whether it is proportionate. The test of proportionality is that the means chosen must:
As I have said before, the Bill goes some way towards dealing with the issues arising in section 6 of the 1940 Act. The second set of circumstances to which I referred is the application of elements of the test to section 6. She finds it is a disproportionate interference with the right to liberty.
The purpose of the amendment is to attach the income or resources or payments which may be accruing to a debtor from a third party for use in discharging the debt. This process should be undertaken before the draconian measure of imprisonment. The second reason given by the judge is:
I do not propose to go over the arguments advanced on Committee Stage with regard to this comprehensive amendment which was drafted to provide for attachment of earnings but also to qualify that in a way that is not unduly onerous for a debtor while giving some satisfaction to a creditor. It emerged in the response from the Minister of State, who was speaking in the House on Committee Stage, that the procedure of attachment is not novel but applies particularly in the area of family law.
The issue does not appear to me to be insurmountable, notwithstanding the urgency of the legislation and the speed with which it is being pushed through the Oireachtas. The Minister could encompass this provision which would appear, on any fair reading of the judgment of Ms Justice Laffoy, to be necessitated by that judgment. Since the Bill is designed to deal with the implications of that judgment, why is this aspect being ignored? I appreciate the suggestion that the matter is rectified by the proposed addition to the 1940 Act of section 6(8)(b), under which the judge must establish that “the debtor has no goods that could be taken in execution under any process of the court by which the judgment, order or decree for the debt was given”. This does not satisfy the requirement arising from the judgment and, in this regard, the Bill is flawed.
In the current economic climate, where significant numbers of people are, for different reasons, being forced into debt and related financial difficulties, the absence of a procedure whereby they can be relieved of the threat of imprisonment and can be guided to find a way to make a contribution from their earnings or social welfare is unacceptable. Such a process would be far more appealing than the prospect of imprisonment and the associated hardship and ignominy. I commend the amendment to the House. Given the imperative arising from the judgment of the High Court on these constitutional principles, the purpose of the Bill to follow through on that judgment, and the present economic circumstances, this amendment is worthwhile, appropriate and timely.
Senator Ivana Bacik: I second the amendment. We debated this issue at length on Second Stage, and I spoke in support of it. Having read Ms Justice Laffoy’s judgment several times, especially the relevant passage at pages 81 to 82, it is clear she is of the opinion that the proportionality test in Heaney v. Ireland can only be fulfilled where there is provision for some type of attachment of earnings procedure. She points out that to be proportionate, any legislative scheme allowing for a person’s imprisonment must impair his or her constitutional right to liberty to the least possible extent. She further states that where a debtor has some resources, some means of paying the debt, but there is no provision in legislation for a scheme of attachment of earnings, the system proceeding directly to imprisonment, then the debt enforcement system is disproportionate because it does not ensure the constitutional right to liberty is impaired as little as possible.
Ms Justice Laffoy describes it as disproportionate and in breach of the constitutional right to liberty to lock up a person for non-payment without first checking whether there is some mechanism for attaching their earnings and income. That halfway house measure must be possible to satisfy the constitutional test of proportionality. This is the only possible interpretation in reading the Laffoy judgment. I do not see how else one can fulfil the Heaney test of proportionality. As we all acknowledged yesterday, the Bill provides for very welcome improvements in the current regime for enforcement of debts and will certainly make it less likely that debtors will be imprisoned. However, a careful reading of the judgment in the McCann case points to the requirement that as well as providing safeguards to ensure people are imprisoned less easily for non-payment of debts, a halfway house scheme must also be introduced whereby some attachment of earnings mechanism may be used by a judge before proceeding to the last resort of imprisonment. If the system does not allow for that halfway house, it allows for the imprisonment of people in a way that is disproportionate and which impairs the constitutional right to liberty.
Senator Regan has expressed this well in amendment No. 1. It is a complex and detailed provision which refers to the need to ensure there are protected earnings rates and protected welfare rates for attachment of earnings and welfare orders. This is something to which Ms Justice Laffoy referred, namely, the need to safeguard a minimum standard of living for the debtor. All these safeguards are included, but the key principle the amendment seeks to address is that without some type of attachment of earnings scheme, the legislation will be regarded as disproportionate and may, therefore, be found unconstitutional in the way the regime provided for in the 1940 Act was found constitutional in the Caroline McCann case.
The Minister of State, Deputy Curran, indicated yesterday that in the first six months of this year, 186 people have already been imprisoned for non-payment of debts. We should also be mindful of the human stories of those imprisoned. I related some of the pertinent background information about Caroline McCann yesterday who owed money to the credit union, as referred to in the Laffoy judgment. As I said, she is a single, unemployed mother of two who left school at age 14, lives in social housing and has a history of alcohol abuse and psychiatric illness. That is the reality for many debtors who face court proceedings. It may not have benefited Caroline McCann but some type of attachment of earnings regime should be inserted in the legislation to ensure there is a halfway house safeguard so that a judge does not proceed straight to imprisonment when confronted with a debtor who has not made repayment.
Senator Alex White: I support amendment No. 1. I am interested in the Minister’s response, especially in respect of the points made regarding the implications of the Laffoy judgment. I agree with Senator Bacik that it seems to be a mandatory requirement to satisfy the proportionality test invoked in that case and upon which the judgment was partly based. I had hoped to have an opportunity to look again at the judgment, but the Minister will appreciate there was insufficient time to do so given that we had to deal earlier today with another of his July statutes. My reading of it is that the proportionality test is as mandatory a requirement as the obligation to distinguish between an inability to pay and a wilful refusal to pay. That distinction is well made in the Bill, which we have welcomed. That having being done on the basis of the tests outlined in the Laffoy judgment, it is equally a requirement that the law should provide for an attachment procedure in circumstances where the absence of such a procedure runs the serious risk of rendering that part of the law unconstitutional.
Even aside from the question of constitutionality, the Minister would probably agree that an attachment procedure has inherent value in itself. If I understood him correctly, the Minister of State, Deputy Curran, indicated yesterday that whereas there would be a large measure of support on the Government side for the inclusion of an attachment procedure, he was of the view that it would be more appropriate for that to be considered at a later stage when the Law Reform Commission has reported on this general area. Even if the Minister does not accept there is a constitutional difficulty, it makes sense in any event to include an attachment procedure in this measure. We are all agreed that everything possible must be done to ensure debts are paid, short of the ultimate sanction of imprisonment. That is one of the contexts in which this Bill has been brought forward, a point made strongly by the Minister of State yesterday when he argued that imprisonment should be avoided if at all possible. One of the measures that will help to avoid the use of this ultimate sanction is the inclusion of an attachment of earnings procedure for persons facing difficulty in repaying debts. It has inherent value if there is not a constitutional question mark over it.
In terms of the broader objective of the legislation, an attachment order also has value to a creditor. Creditors who are owed money will probably be more impressed by the possibility or likelihood of being paid the money owed than the prospect of the debtor being sent to prison. All creditors, whether large or small, want to be paid rather than see someone led off in chains, as it were. Attachment to earnings orders appear, therefore, to have an inherent value as a public policy instrument and to the individual creditor whose rights we are also interested in protecting.
The case that there is a constitutional question mark over the legislation appears to be unanswerable, although I await the Minister’s response in this regard. Given that the Minister has chosen not to appeal the Laffoy judgment in relation to the matter of ability to pay versus refusal to pay, I do not understand the reason he is not following the decision, which he has no choice but to accept, in respect of the absence of an attachment of earnings procedure and the effect it has on the rights of the people involved. On that basis, I strongly support the amendment and look forward to the Minister’s response.
Senator Jim Walsh: Attachment to income is a good principle and one which Senators discussed on Second Stage. It is a less costly way to address the issue of debt than imprisonment. Senator Quinn cited a case of a person who was imprisoned for a debt of €1,700 at a cost of some €23,000. From the perspective of the State, an attachment to earnings procedure is clearly a good idea.
Where a debtor is liable by virtue of an attachment or instalment order, such orders should cover more than the debt owed. I have listened to what my colleagues, some of whom are barristers, have said about the Laffoy judgment. The amendments to the 1940 Act will ensure a debtor who is in breach of an instalment order must come before the court and be advised that he or she may face imprisonment. In addition, the Act has been amended to shift the onus of proof and require the creditor to show that the debtor has the assets and capacity to pay the debt. This provision must overcome the constitutional difficulties arising from the McCann judgment.
During the Second Stage debate, the Minister of State indicated that the Law Reform Commission is examining issues surrounding debtors and creditors with a view to producing recommendations. We should await the report of the commission for a number of reasons. Issues such as social welfare fraud and certain aspects of tax fraud, albeit not cases involving excessive amounts, and other matters should be brought within the attachment order procedure. We must simplify the system for recovering debts, whether they are due to the State or another citizen. While I am taken with the concept of attachment orders and support the principle involved, the amendment is premature.
Senator Liam Twomey: The failure of the Government to challenge the High Court judgment amounts to an acceptance of Ms Justice Laffoy’s ruling in the McCann case. If a similar case arises following the enactment of the legislation, it could go before the High Court and the McCann judgment will serve as the precedent.
The Minister of State referred to the possibility that a stake could be placed on goods. Goods do not equate to income. We still have not received a satisfactory answer from the Government on whether the Laffoy judgment could be used to bring down the legislation. Unless the Minister provides a clear-cut answer on this matter, we will have to ask him to refer the legislation to the Supreme Court for an opinion. If he fails to do so, the Laffoy judgment will be used in future cases and may bring down the legislation, as occurred with the 1940 Act.
Senator David Norris: I welcome the opportunity to contribute to the debate on this legislation, on which I also contributed on Second Stage. I mention in the presence of the senior Minister that the legislation appears principally to be a response to the McCann judgment. I recognise also that Ms Justice Laffoy issued a very good judgment in the case. I wish to put at the centre of this debate the human experience of the debtor. The Minister should note that many Senators greatly appreciate the work of the Northside Community Law Centre, without which the McCann case may not have reached a satisfactory conclusion.
While I compliment the Minister on having responded to the McCann case, as I stated on Second Stage, he has responded to half of the problem rather than the full problem. This may well be the reason my colleague, Senator Walsh, asked Senators to wait for the report of the Law Reform Commission. Different Governments have frequently asked us to wait for this or that report to be published. Unfortunately, I have always found this approach to be rather haphazard.
Senator Regan’s amendment is considered and detailed but also clear and efficient. It is interesting to note that it is almost exactly the same length as the Bill, which tells us something about the degree of concern and interest the Senator has devoted to the matter. I am fully in favour of the idea of attachment and urge the Minister, even at this late stage, to take the matter on board.
The whole point of the McCann judgment was to avoid circumstances in which citizens are sent to jail. The amendment appears to be another mechanism, in this case an efficient one, to ensure that with regard to debt, a citizen is not needlessly sent to jail for a non-violent crime which, while possibly aggravating and financially dangerous for the other side, is not a crime of violence. Why should the taxpayer have to pay to keep people in jail over debts, some of which are for small sums? The attachment of earnings procedure appears to be an efficient method to address this matter and it is one of which I approve.
The reason I commented on the length of the amendment and compared it with the length of the Bill was that any difficulties or concerns I had appear to have been met by Senator Regan. For example, I was concerned that a circumstance could arise in which a person’s income was attached to such an extent that he or she would experience difficulty in meeting the requirements of life, including the education of his or her children and so forth. I note, however, that section 8(4)(b) of the amendment requires that the protected earnings rate must be specified so that the court will determine a level of income below which, as a result of the attachment order, the person in question should not have to pay. I like the idea of consent in subsection (5) which states:
The phraseology “in advance the hearing” sounds a bit odd. Presumably it means “in advance of”. Perhaps the Minister can advise as to whether a preposition was left out or if this is legal language. If it is, it is a bit odd considering that the Minister has committed himself to using ordinary language. There may well be a simple explanation and I see that the Minister’s adviser is smiling.
Senator David Norris: The Minister did not draft it. It was Senator Regan, the fausseur. Is the Minister disposed to accept this amendment? It is so good, I assumed it came from the Minister. However, I think the preposition has been left out. It looks to me almost like a conciliation process — the kind of thing that sometimes happens on the way into court when parties agree and no blood need actually be shed. I commend this amendment which is good and well thought out. The defence that the Government has offered for its apparent reluctance to accept it seems principally to be that the Law Reform Commission may look at this in the future.
I think we are taking amendments Nos. 1, 2, 4 and 6 together. Amendment No. 4 seems to be reasonable on the part of Senator Regan. It would be almost like a biblical parable if, for example, A was in debt to B, and C was in debt to A, and C was paying money to A, but A was refusing to pass it on to B. It would be aggravating for poor B to watch money flowing into the pockets of somebody who had already borrowed money from them. The amendment therefore seems to be perfectly reasonable. There is no reason why an ancillary debt of that nature should be protected.
It is a good legal principle that people must get direct and proper notification which must be served appropriately. I am very much in favour of this amendment. On Second Stage, I said the Minister was going excellently half the way, but Senator Regan has provided another 40% or 50%. I hope therefore that the Minister will consider these amendments positively.
Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): I thank Senators for acknowledging that we have put significant checks and balances in the Bill concerning the implications of the Laffoy judgment. In my 21 years as a practising solicitor, from 1976 to 1997, I had some practical experience of the use of instalment orders, garnishee orders and judgment mortgages, to try to use every trick in the legal book to get money or, as they say, blood out of a stone. It is a frustrating experience for somebody who is owed a debt to get money from people who wilfully refuse, even though they have the resources. When one gets the instalment order, people often say they will pay a fiver a month, that the person owed will never get the ultimate amount and that it will be made a painstaking experience. It is a frustrating experience for those who are owed money. It needs reform which is one of the reasons the Law Reform Commission was requested to review this matter.
I do not accept what Senator Norris says about the Government’s attitude being haphazard. It is anything but haphazard in that we are taking a long-term look at it and are consulting with various people. The commission has already done some work, but will do a consultation process in September and will ultimately report on a complete reform of this area. I would welcome that. If we were to accept Senator Regan’s amendment, we could be rightly accused of second guessing what the Law Reform Commission will ultimately report. It is important therefore to allow that consultation process to go ahead.
I have sympathy with the concept of attachment, which works pretty well with maintenance orders. It must be said, however, that 50% of those who end up in prison do so as a result of non-payment of maintenance orders, so the attachment was no good in those circumstances. There is a multiplicity of ways in which people can recover a debt. I am digressing a bit in telling the story of a case I took great pride in when I was a practising solicitor many years ago. It concerned an elderly couple who were badly assaulted by their next door neighbour in a row over a fence. The gardaí would not get involved, even though an assault took place, because it was one person’s word against another. There was no criminal prosecution so we took a civil prosecution. This couple had been badly beaten. In the man’s case we got £5,000 and £2,500 for the woman, which was a huge amount of money 20 years ago. We tried to go through the courts with instalment orders which we obtained, but it comes back to the central point. In my experience, and I think it would be the experience of most legal practitioners, the courts err on behalf of giving people their freedom. It is only when the creditor has gone to the nth degree that the debtor ends up in prison. In my recollection very few people were put in prison in my area during my time practising law. To come back to the story, I tried to get the money for these nice people who were from Canada but living locally in Dundalk at the time. We went though all these instalment proceedings but, of course, the fellow never paid. We probably did get a committal order against him but I do not think it was enforced. I took a personal interest in the case because I felt the man who assaulted the couple should not be let off. I therefore registered the judgment as a judgment mortgage against the assaulter’s property. We left it there and did not apply for an order for sale, as one is entitled to do under a judgment mortgage. I thought no more about it and the people never got paid. Then about 15 years later I got a call from a local solicitor who was in the process of selling a house and was literally closing the deal that day. He did what are called the searches and, lo and behold, he came across this judgment mortgage which was registered against the property, as well as another mortgage with the building society. He could make neither head nor tail of this mortgage, but it transpired it was the mortgage I had registered on behalf of the people concerned. He obviously could not sell the house that particular day therefore. I then had to try to locate the people who had returned to Canada after the assault, without having received their money. Eventually we tracked them down and I was delighted to be able to tell them that they were going to get £7,500 plus interest at 11% for about 15 years. It was a lovely little box for them subsequently. I am digressing, but the story illustrates the difficulty a debtor must go through to get satisfaction.
Deputy Dermot Ahern: Did I say “debtor”? I meant to say “creditor”. The 1940 Act is an old Act but we have put in a range of balanced safeguards and protections. We took into account what Senators said yesterday. We consulted the Attorney General on the safeguards and we are satisfied those built into the Bill are correct. We have gone further in the legislation in that no debtor can be imprisoned until the court has heard from him or her. If he or she refuses to attend, he or she obviously can be held in contempt under section 12. I understand from my officials that no Senator disagreed with the fact that this is a necessary provision. The High Court also stated that it was necessary that the debtor be apprised by the judge of his or her entitlement to legal representation. This is fully accounted for in the point.
Ms Justice Laffoy’s final point was that the court “applies fair procedures in the hearings of the creditor’s application, and does not make an order for arrest or imprisonment, unless it is satisfied that the failure to pay is due to wilful refusal or culpable neglect.” This is extensively addressed in the Bill which provides that the debtor must be informed in the summons, which will be personally served if possible. We are again nodding in the direction of an amendment by Senator White on the consequences of that process. The debtor must be brought before the court to be further informed by the judge of his or her rights, including legal aid and the possible consequences. The Bill goes further still, by listing a range of options that are open to the judge, including the making of a variation order, requiring the parties to participate in mediation.
The money advice and budgeting service was referred to in the House. In my time as Minister for Social, Community and Family Affairs between 1997 and 2000, I was very instrumental in building up that service to what it is today. When I started in public life, the ESB used to switch people off. That does not happen anymore because MABS is there for everyone, and it is an excellent service.
I accept what Senator Bacik said about the lady in question. The couple in my case own the house, and judgment mortgages do not apply to people in local authority houses. I appreciate that there are people who do not have the resources and perhaps do not have the legal advice. Perhaps they have a health issue which may prevent them from getting that advice. My experience has been that the courts have erred very much on the side of caution in this respect.
We have addressed an urgent need that was identified by the High Court decision. It does not deal ultimately with the overall process, which may very well be radically overhauled by the Law Reform Commission when it comes to give a view on this. I would recognise that the Government would be more than willing to do away with or change the existing system if that is what was recommended. We should give a chance to the Law Reform Commission to bring forward its recommendations. Approximately half of those imprisoned at any given time are maintenance debtors where there is already an option of attachment. It seems this is not the complete panacea to all the ills associated with the issue.
Senator Eugene Regan: I wonder why we go to so much trouble in this Bill and not remedy this particular defect in existing legislation. The Minister has correctly outlined the number of safeguards that have been introduced in the Bill that deal with the outcome and the implications of the Laffoy judgment. However, he cannot pick and choose the bits that he wants to deal with. The judge has stated in express terms that the legislation fails the proportionality test. Where one does not have a statutory scheme that does not require the creditor to seek redress by attaching those resources, then this is a failure. These are constitutional principles to which the Minister is duty bound to have regard. This judgment was not appealed as it was clearly “slam dunk” on the constitutionality of the legislation, given the serious implications of non-payment and non-compliance, but I do think the Minister is picking and choosing which bits he is going to implement in this Bill. Why run the risk of leaving this Bill open to challenge? Anyone challenging the Bill can simply quote the specific ruling of Ms Justice Laffoy.
The Minister has also made the case for this amendment in his exposé about the painstaking difficulties of getting money and recovering debts in court. The fact is that the attachment procedure is the most efficient procedure because it has immediate effect. It is a procedure which does not leave things hanging in the air, avoids the threat of imprisonment and at the same time provides a mechanism for the creditor to recover some if not all of the debt he is seeking. The ultimate outcome of the Minister’s refusal to accept this amendment is that we still have the big stick of imprisonment rather than the more considered approach as outlined in Ms Justice Laffoy’s judgment.
I commend amendment No. 6 to the Minister. There is an issue with personal service of the summons for an instalment order, in that it should be served personally and the implications of non-compliance should be spelled out to the person being served. This principle, which again was established in the judgment, applies not only to the committal summons but to the instalment order itself. There is a requirement that the instalment order be served personally and that notification be given of the consequences of failure to comply. This amendment is not to the 1940 Act, but to the principal Act of 1926. The amendment states that all instalment orders made under the aforementioned section must be served personally on the judgment debtor and must contain a notification of the consequences of failure to comply with such an order, including the impossibility of imprisonment, pursuant to Order 6 of the Enforcement of Court Orders Act 1940. The endorsement on the order would inform the debtor that failure to comply could result in the issuing of a committal summons, so it comes before that, as a result of which the instalment order could be varied. The court may order mediation, in accordance with this Bill. The court may order attachment of debt owed to the debtor by a third party. The court may order imprisonment with or without a stay of execution. On page 83 of her judgment, Ms Justice Laffoy highlighted this as a weakness in the system. I appreciate that the Bill seeks to address it at a later stage — the committal stage — of the whole process. The principle is established when this process is initiated at the instalment order stage, however.
An amendment of this type is required to fully implement and take account of the implications of Ms Justice Laffoy’s judgment. It is important that instalment orders are served personally. It is also a question of efficiency. When one moves to the committal stage, the full implications of the provisions of the legislation before the House come into play. I refer to the legal aid provisions etc. This amendment will ensure that instalment orders are registered with the individuals on whom they are personally served. It should be immediately brought home to people that an order has implications — it is not something they should put aside or throw in the bin. I am seeking to avoid many problems and hasten the process of recovering debt. I commend it to the Minister of State.
I will explain the logic underpinning amendment No. 4, which is a variation on the proposal to which I have already referred. The proposed new section 6(7) of the 1940 Act, as provided for in the Bill before the House, will ensure that various processes take place. Section 6(7)(a) provides for a process of variation of the instalment order and is followed by section 6(7)(b), which provides for a process of resolution by mediation. The logical next step would be to provide for a process of attachment orders, before moving on to the imposition of a prison sentence, albeit stayed, and finally the more draconian measure of arrest and imprisonment. That is the logic of amendment No. 4.
The Minister is fully aware that it costs approximately €2,000 a week to keep a prisoner in jail. The number of people who are imprisoned for non-payment of debt was mentioned on Committee Stage. They spend an average of 24 days in prison. One can add up the cost of that. We need to avoid such direct costs and minimise the indirect costs and additional problems associated with overcrowding in our prisons. These amendments have been tabled to improve the Bill and ensure it complies fully with Ms Justice Laffoy’s judgment in the McCann case. I ask the Minister to reconsider the position in relation to these amendments.
|Bacik, Ivana.||Bradford, Paul.|
|Buttimer, Jerry.||Cannon, Ciaran.|
|Coffey, Paudie.||Coghlan, Paul.|
|Cummins, Maurice.||Donohoe, Paschal.|
|Fitzgerald, Frances.||Hannigan, Dominic.|
|McFadden, Nicky.||Mullen, Rónán.|
|Norris, David.||O’Reilly, Joe.|
|O’Toole, Joe.||Phelan, John Paul.|
|Prendergast, Phil.||Quinn, Feargal.|
|Regan, Eugene.||Ross, Shane.|
|Ryan, Brendan.||Twomey, Liam.|
|Boyle, Dan.||Brady, Martin.|
|Butler, Larry.||Callanan, Peter.|
|Callely, Ivor.||Carty, John.|
|Cassidy, Donie.||Corrigan, Maria.|
|Daly, Mark.||de Búrca, Déirdre.|
|Ellis, John.||Feeney, Geraldine.|
|Glynn, Camillus.||Hanafin, John.|
|Keaveney, Cecilia.||Leyden, Terry.|
|Ó Domhnaill, Brian.||Ó Murchú, Labhrás.|
|O’Donovan, Denis.||O’Malley, Fiona.|
|O’Sullivan, Ned.||Ormonde, Ann.|
|Phelan, Kieran.||Walsh, Jim.|
|White, Mary M.||Wilson, Diarmuid.|
Deputy Dermot Ahern: As I mentioned in dealing with Senator Regan’s amendment, in light of discussions yesterday, we talked overnight to the Attorney General on this. There were two helpful amendments from Senators Bacik and Alex White and we have incorporated the main points made in those into this amended paragraph. New paragraph (c) provides that the summons will set out in ordinary language the options available to the judge of the District Court under subsection (7). This will include the variation order and the mediation option. Paragraph (d) is the old paragraph (c) unchanged, merely renumbered. Paragraph (e) is the old paragraph (d) with the proviso “unless the judge of the District Court directs otherwise” inserted. This will enable the court to make directions as to other service options if the summons cannot be served. I am satisfied that these small changes are warranted and I thank the Senators for their assistance.
Senator Ivana Bacik: I am very grateful to the Minister for accepting my amendment from yesterday and acknowledging that in his speech. I put the amendment on Committee Stage last night and we voted on it. The Minister of State, Deputy Curran, indicated he could not accept it but I am delighted there has been a change of mind overnight and that it has been accepted. This is an important principle and I am very grateful to the free legal advice centres for advising us all in a briefing paper of the need to ensure information is provided at an early stage to a debtor of the consequences of a failure to appear and of the possibility that a variation could be made to an instalment order. We had a lengthy debate on that last night.
I am delighted the Government has accepted the amendment I proposed and the principle behind it. Its wording is more elegant than mine was, given that mine was rather rushed, however the basis of it is the same. At paragraphs (c) and (d) the new provisions ensure the summons served on the debtor at the first stage in the process will provide information to the debtor in ordinary language of the options available to the judge of the District Court under subsection (7)at the hearing of the summons.
In my amendment I had said the information that should be provided in ordinary language was that the debtor could seek a variation of an existing instalment order. This is fuller, and it emerged during the debate last night that all the options available to a judge at the hearing of the summons should be outlined to the debtor in ordinary language. The Minister had expressed the view that it might be unbalanced to tell the debtor about the possibility of a variation application. I contested that and said I did not see why the debtor would be told of the sticks, the possibility of arrest and imprisonment, but not the carrots, the possibility of variation and mediation.
The policy behind this legislation, with which we all agree, is to ensure a higher number of debtors appear before the court and that they are encouraged to appear before the court with a view to escaping imprisonment and ensuring there is some payment of the debts owing to the creditors. I did not see there was an issue of balance and it seemed entirely appropriate that debtors would be given all the information at the earliest stage in ordinary language about the nature of the District Court hearing and that this would encourage them to attend.
Fewer than one in five debtors engage with the court process, according to Courts Service statistics, so it is in the interests of debtors, creditors and the public good that they are encouraged. The summons should also state that the debtor may be arrested if he or she fails to appear before the District Court. That was already in the legislation and it is very important. The amendment put forward by Senator Alex White, that there should be provision for the judge of the District Court to direct otherwise and by personal service, was also accepted.
I very much welcome the Minister’s acceptance of my amendment. I am delighted the carrot will be incorporated into the summons as well as the stick. It is important we have it in the legislation. The Minister of State, Deputy Curran, indicated yesterday that an information leaflet might be provided but it is far more important that the information is there in the summons for a debtor to see very clearly at the earliest stage possible. Hopefully we will see more debtors appearing before the court and engaging with the process.
The FLAC report that came out this week points out that the sanction of imprisonment should be removed immediately for those who are unable to pay their debts, and this Bill addresses that in a very welcome way. To nobody’s credit, FLAC also recommends the State should move towards the removal of imprisonment as an option in debt cases and should look instead at effective non-penal remedies to be employed for non-payment of debts, not just where people are unable to pay. That is the broader reform I would like to see, and this Bill, unfortunately, does not address that. While it is very welcome in that it ensures, as far as possible, that people are not imprisoned for inability to pay, it still allows for people to be imprisoned for non-payment of debt.
Having said that, I am delighted to have my amendment accepted. I am delighted debtors will henceforth be given information in ordinary language in the summons about the options available to the District Court judge at the hearing of the summons. That is a very important and welcome improvement to the Bill.
Senator David Norris: I add my voice to that of Senator Bacik. I compliment her on getting this amendment passed. On behalf of the House, I thank the Minister for showing this degree of flexibility. It is a very important point, which a number of us made on Second Stage. Senator Bacik put the amendment down, argued very clearly for it and, obviously, impressed the Minister and his advisers. It strengthens the Bill, democratises it and allows the debtor to fully participate in the process in a way which can only be positive for the whole outcome.
Senator Bacik emphasised many of the legal and human aspects, but I would like to emphasise the ordinary language aspect. That is terribly important because it is by virtue of the ordinary language that this information becomes accessible, and it is usable only when it is accessible. If it is wrapped in legal jargon one can print it on note paper, send it through the letter box or read it out to the people, but it will not make the slightest difference. It must be accessible and that permits the citizen to exercise his or her rights.
I endorse what Senator Bacik said about prison. It is futile. It is a waste of time, money and effort sending people in such civil cases to jail. It is not at all worthwhile and I look forward to the time when the only people in jail will be those who are a danger to themselves or society in some really practical way. Although this is not the time to discuss them, there are many other ways people can be encouraged to pay off their debts to society, such as community service orders, but sending people to jail is very foolish.
The Minister said very few are jailed, but there are many more than one might imagine. There were approximately 200 last year. That is quite a large number of people affected by this. A large number of people are being put in jail for non-payment of television licences, and that is completely daft. That is one of the reasons I welcome this, and I hope they will be covered by it. I raised it under the Broadcasting Bill and was told it was an inappropriate location.
I support Senator Bacik. I am very glad the Minister accepted the amendment. I congratulate her. This is what the Seanad is for. The fact that this was done overnight shows how much more we could do with these Bills if they were not galloped through the Seanad.
Senator Alex White: I also warmly welcome the Minister’s amendment. It is a positive addition to the Bill. It is important that we on this side of the House acknowledge when the Government is prepared to deal with issues and objections and draft amendments we bring forward, and we should welcome it. Senator Norris mentioned the late night aspect of this Bill.  I am sure the Minister is extremely busy and is working very hard. I can see his officials are also working extremely hard. Although these matters may not be particularly detailed, they still involve issues of principle and procedure. It is impressive that they could be turned around overnight in the manner in which they were as has been said. It is publicly known that the Attorney General is legendary for his late night if not around the clock working. I can see some smiles coming in my direction from people sitting behind the Minister who probably have direct experience of it. I am sure the Minister knows it also. It is impressive.
Senator Alex White: I started by acknowledging that. The Minister must not have been listening to that part. I accept the Minister and his officials are equally applying themselves and taking careful note of what is said. It very much vindicates the position taken on this side of the House about the manner in which the legislation was proposed to be marshalled through the House. We had a completely unnecessary skirmish here yesterday about whether there would be some sort of gap — we sought half an hour — between Committee and Report Stages. Ludicrously even that was not granted yesterday. In the end, because of how the debate proceeded, we had the overnight break, which allowed the Minister and the Attorney General to consider these matters and make changes. That simply would not have occurred were it not for the completely unnecessary, stubborn and ridiculous attitude taken by the Leader to the debate on this legislation.
I do not know whether the position of the Leader was adopted in consultation with the Minister — I would be curious to know if it was. However, even if it was not, it was wrong and foolish. No legislation should be pushed through any parliament in the manner that was suggested. The position taken by us is now entirely vindicated by what the Minister has done, in fairness to him, by agreeing to some, but not all, of the amendments tabled. It should be a lesson for other legislation before these Houses, some of which is even more important and momentous in its likely implications and effect. It requires and admits of the most detailed scrutiny, which requires time. At least we had the overnight break and made good use of it.
I welcome what in net terms are two additions. One was already in the Bill and the other was proposed by Senator Bacik and was also advocated by FLAC. We have taken note of its very considerable expertise and application to the issues in this legislation. I very much welcome what the Minister has done for the reasons Senator Bacik originally proposed and explained.
I will not press the amendment we tabled because I accept the Minister has dealt with the issue in his amendment. I do not want to prolong matters unnecessarily or return to an excessively legalistic analysis of the words used. However, I had a certain concern over the formulation which states that the summons should “be served on the debtor by personal service, unless the judge of the District Court directs otherwise”. I had a concern that might give latitude to a judge not to require service at all. However, I believe the comma that appears in the middle of it saves it in the sense that the flexibility given to the District Court judge seems to relate to the manner of service rather than the fact of service. I will live with that. I thank the Minister for his attention to what was proposed.
Deputy Dermot Ahern: In defence of the Leader of the House, to be fair I had no conversation with him on this matter. We listened to the comments that were made by Senators overnight. We are amenable to amend legislation based on the comments people make.
Deputy Dermot Ahern: To be fair to the Leader of the House, obviously because of the time pressure we wanted this legislation finished as soon as possible so we could take it into the Dáil on Friday.
There would appear to be a lack of absolute clarity as to the amount of money a debtor would be required to pay in order to be released from prison, if that is on the agenda for the debtor. I draw the Minister’s attention to this net point. The new section 6(10)(b) deals with the possible release of a person who pays up and states the person “is entitled to be released immediately upon payment by him or her or on his or her behalf to the District Court clerk concerned or to the Governor of the Prison for the District Court clerk, of the sum of money consisting of the amount of all instalments of the debt and costs which have accrued before, and are unpaid at the date of such order”.
I have proposed an amendment referring back to sections 6(7)(c) and 6(7)(d) because there arguably could be a discrepancy here. It might be suggested that the two are not identical. They are described in sections 6(7)(c) and 6(7)(d) as “the amount of the outstanding debt and costs”. That is what lies behind any order of imprisonment. However, in order to get out, the sum of money is described differently as “the sum of money consisting of the amount of all instalments of the debt and costs which have accrued before, and are unpaid at the date of such order”. Yesterday the Minister of State, Deputy Curran, told us it was not necessary to make any change and there was no difficulty. I want this provision to work, as we all do. Why are there two different descriptions of the sum of money? There is one description of the sum of money for the order that might be made for imprisonment, but there is a different description of the sum of money to be paid in order to be released. I believe that it could be argued that the two were not the same. My amendment effectively links the release money, if I can call it that, with the imprisonment money, if I can call it that, being the amount specified in the section 6(7).
Senator Ivana Bacik: I second the amendment. I spoke on the amendment last night. We are grateful to the Minister for reviewing what we said in the Seanad last night. We can anticipate that he is aware of the arguments in favour of this simple clarifying amendment.
Deputy Dermot Ahern: Overnight we consulted with the Office of the Attorney General on the amendment and it sees no necessity to amend the section. Section 6(10) commences “Where a debtor is imprisoned on foot of an order made under subsection (7)(c) or (d)”. We believe that is sufficient in that it links the two and there should be no doubt as to the amounts payable, the sum of money consisting of the amount of all instalments of the debt and costs which have accrued before, and are unpaid at the date of the order. Obviously it may not necessarily be the amount in the original order and may be a lesser sum.
|Boyle, Dan.||Brady, Martin.|
|Butler, Larry.||Callanan, Peter.|
|Callely, Ivor.||Carty, John.|
|Cassidy, Donie.||Corrigan, Maria.|
|Daly, Mark.||de Búrca, Déirdre.|
|Doherty, Pearse.||Ellis, John.|
|Feeney, Geraldine.||Glynn, Camillus.|
|Hanafin, John.||Keaveney, Cecilia.|
|Leyden, Terry.||Ó Domhnaill, Brian.|
|Ó Murchú, Labhrás.||O’Brien, Francis.|
|O’Donovan, Denis.||O’Malley, Fiona.|
|O’Sullivan, Ned.||O’Toole, Joe.|
|Ormonde, Ann.||Phelan, Kieran.|
|Quinn, Feargal.||Ross, Shane.|
|Walsh, Jim.||White, Mary M.|
|Bacik, Ivana.||Bradford, Paul.|
|Buttimer, Jerry.||Cannon, Ciaran.|
|Coffey, Paudie.||Coghlan, Paul.|
|Cummins, Maurice.||Donohoe, Paschal.|
|Fitzgerald, Frances.||Hannigan, Dominic.|
|Healy Eames, Fidelma.||McFadden, Nicky.|
|Norris, David.||O’Reilly, Joe.|
|Phelan, John Paul.||Prendergast, Phil.|
|Regan, Eugene.||Ryan, Brendan.|
|Twomey, Liam.||White, Alex.|
|Last Updated: 15/12/2010 21:11:32||Page of 13|