Stephen Donnelly (Wicklow, Independent)

I express gratitude to the Minister. Having listened to his detailed and considered response, I have no doubt it took a considerable amount of his time and energy to draft it. I also thank all the Deputies who attended the debate. Their presence is very much appreciated. It took a long time for me, my team and members of the New Beginning group to reach the point at which we were reasonably happy to introduce the legislation for the consideration of the House. I thank the Fianna Fáil Party and Sinn Féin for supporting the Bill. It is great to receive such support. I acknowledge and accept the reasons my colleagues on the Government benches will not be able to support the legislation when the House divides on it on Tuesday. I am gladdened by the support the principle enshrined in the Bill has received and welcome the tips more experienced Deputies have given me on how the essential elements of the Bill could be incorporated in the Minister's legislation.

I did not hear anyone suggest the principle I am trying to employ in the legislation is fundamentally wrong. My understanding of the Minister's critique is that much of it focused on detail, implementation and so forth. The principle we are trying to enforce it to provide judges with a workable, sensible and constitutionally compliant level of discretion in cases of possession as part of a package of policies. I hope the essence of this principle can be advanced and I will take up the Minister's offer of a meeting to discuss useful proposals that could be made when the Select Committee on Justice, Defence and Equality is considering the heads of his Bill.

If Deputies will bear with me, I will respond to the various technical points raised, most of which were also alluded to in the Minister's contributions. I will also address Deputy Murphy's point on the scale of repossessions, both in terms of mortgages and individuals.

The Minister is correct to note that the provisions of the Bill "could impose time consuming and costly procedures both on the court and the parties engaged in repossession proceedings." While the enactment of this legislation would result in longer court proceedings, it should be noted that courts frequently spend a full week hearing personal injury claims but usually take only a short time to hear repossession cases. The reason is that in the latter cases, judges must rule according to the contract. While I accept the Bill could result in the courts incurring additional costs and cases taking longer to hear, this is reasonable given the crucial importance of cases involving the repossession of a family home. I would not have a problem if such cases lasted as long as some of the personal injuries claims that come before the courts.

The Minister stated the explanatory memorandum accompanying the Bill seeks "to link the normal contractual requirement to repay one's home loan with the article of the Constitution which refers to the rights of the family in Article 41". I do not have the text of Article 41 of the Constitution to hand and if there is a mistake in the explanatory memorandum, I accept the Minister's point.

As I am also not in a position to respond to the points the Minister made on two court cases, Bank of Ireland v. Smyth and Anglo Irish Bank Corporation v. Fanning, I will seek expert opinion on the points he made in this regard.

It was stated that, in general, the Bill proposes that the court shall take account of a number of factors when determining an application for possession of the home. That is true. It was then suggested that the courts already take account of that. That point was raised previous to this debate by somebody and I put it to the senior counsel helping me to draft the Bill who is very familiar with, and represents people in, these cases all the time. He stated categorically that the courts do not have discretion. He was very firmly of that view. I am not a legal expert but that was very clearly his view. He stated that once there has been a default, the lenders are entitled to possession. I am told the only exception to this is compliance with the current code on mortgage arrears which provides that lenders will not institute proceedings for one year. What is actually happening is that lenders are waiting for the year. I guess it is a difference of opinion in an area in which I am not expert but that is the advice I was given.

It was stated that there is no need to refer to the District Court. That was well spotted and we will take that out. The Minister stated, "I presume that these proposed factors are intended to be additional to the current options open to the court to adjourn proceedings". The answer to that is "Yes". I am told by senior counsel taking these cases that while the courts have the ability to use adjournment, they are using it less and less.

It was stated that, in practice, courts consider whether an offer to restructure loan repayments has been made and the capacity of the borrower to make such payments in the context of both outstanding mortgage arrears and the legal obligation on the borrower to make future mortgage repayments. The advice I was given is that the courts may consider it but that, ultimately, they must enforce the contract. Regardless of the reality, ultimately, the courts must enforce the contract and possession.

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