Charles Flanagan (Laois-Offaly, Fine Gael)

I welcome this legislation and thank the Minister of State, Deputy Moloney, for his explanation. The indexation of fines imposed by the District Court can be dealt with under this legislation, as can a limited number of fines imposed by the higher courts. The Bill will also give the courts the power to inquire into the capacity of persons to pay fines and will allow, for the first time, for the payments of fines on an instalment basis.

While the Bill provides for alternatives to imprisonment, regrettably it does not propose to end the practice whereby people are imprisoned for non-payment of a civil debt. Interestingly, a case is proceeding through the courts currently and I am sure the Minister for Justice, Equality and Law Reform and his colleagues will watch developments there with some interest.

I do not propose to deal with the main provisions of the Bill as the Minister of State has dealt with these. It is important that the emphasis in the Bill should be on the capacity of a person to pay a fine rather than the intent of a person to pay a fine. The Bill will deal with people who cannot pay fines rather than people who will not pay them. This is a distinction that is sometimes difficult for a court to get to the root of. It is important that people who might well be in a position to pay a fine but who for reasons best known to themselves do not wish to pay that fine do not unduly avail of the legislation in a way that would be unjust.

The Fine Gael Party welcomes the publication of the Bill, which is long overdue. An overhaul of fines legislation has been required for many years. In an effort to establish a progressive, fair, equitable and efficient system of fines collection, Fine Gael has put several Bills before the Oireachtas over the past 11 years since the Fianna Fáil Government took power in 1997. I would like to acknowledge the contribution of my former colleague, Jim Higgins MEP, who introduced the enforcement of court orders Bill 1998 when he was Fine Gael spokesman on justice. The enforcement of court orders Bill 2004 was sponsored by Deputy Jim O'Keeffe when he was spokesman on justice, but it did not enjoy the passage through the House it should have had. The enforcement of court orders (No. 2) Bill 2004 was sponsored by the then Leader of the Seanad, now Deputy Brian Hayes. The fines Bill 2004 and the enforcement of court orders Bill 2006 were also sponsored by Deputy Jim O' Keeffe.

All of these Bills were voted down by the Government in a way that, perhaps, underscores all that is wrong with the adversarial nature of our political system. The Government chose on all of those occasions, as it continues to do with Private Members' Bills, to play partisan party politics when there was no social, economic, logical or moral reason for so doing, other than to play the party political card.

We now have a situation where members of the public are under increasing pressure to meet their debts in the economic downturn. Our prisons are becoming more and more overcrowded and it is costly for the State to imprison those who fail to pay fines and debts in the manner envisaged by the blunt instrument of the current system. The inertia of successive Governments over the past 11 years is highlighted by the failure to address the issue now before the House.

It is important to dwell for a moment on the main arguments advanced by the Government against the Fine Gael Bills I listed earlier. The first argument was the Bill could undermine the existing system for payment of fines. There is no reason at all such a Bill would undermine the existing system. Our proposed legislation actually strengthened the current system by ensuring that fines would be collected and disposed of expeditiously and that fines would not be disproportionately onerous on less well-off members of society. The second argument advanced was that the Bill could prove vastly and disproportionately expensive to administer. However, the scheme outlined in our 2006 Bill would more likely have saved money than anything else on the basis that currently, the system requires repeated appearances in court, which are by definition very expensive, and in some cases periods of detention in prison at a cost of just less than €100,000 per year per prisoner. There is no argument therefore that the current system of allowing for the imprisonment of fine defaulters or imprisoning people for non-payment of civil debts is anything other than an expensive cost to the State.

A third argument put forward for not accepting our Bill was that it would not make any significant improvement on pressure on prison accommodation. I listened carefully to what Deputy Moloney said about the popular perception that there are people in prison for non-payment of debt. As with everything else, he twisted the statistics to suit his argument. Almost 2,000 people are committed to prison in Ireland every year for non-payment of fines, civil debt and other non-violent offences. That is a lot of people and prison space and amounts to significant costs. I accept that many of these people serve only short sentences. I understand the average term of imprisonment for non-payment of debt, fine defaulters or TV licence evaders is approximately 20 days. If we worked out the average cost of 20 days imprisonment against the cost of €100,000 per prisoner per year, we would recognise this is a huge drain on the resources of the State, with money being spent keeping people in prison when the matter could and should have been handled in a different way. The arguments have fallen by the wayside as the Government belatedly introduces these proposals for alternatives and for the categorisation of the fines in accordance with the legislation.

I regret that the Minister for Justice, Equality and Law Reform is not present. I would have thought that in his absence the Minister of State who introduced the legislation to the House might at least have done the Opposition the courtesy of remaining here to hear our submissions. I accept that the Minister may have urgent business that keeps him out of the House, such as another press conference but the Minister of State might have remained between now and Question Time, or at least to hear the main spokespersons.

The only section to which the Minister of State did not refer was section 11, the only one with which I have difficulty. I do not know why he did not refer to it because it is rather unusual. The section gives the Minister power to make regulations to address difficulties with Part 2. Section 11(1) states:

If, in any respect, any difficulty arises in bringing any provision of this Part into operation or in relation to the operation of any such provision, the Minister for Justice, Equality and Law Reform may, by regulations, do anything which appears to him or her to be necessary or expedient for removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation, and any such regulations may modify any provision of this Part so far as may be necessary or expedient for carrying such provision into effect for the purposes aforesaid, but no regulations shall be made under this section in relation to any provision of this Part after the expiration of 3 years commencing on the day on which the provision came into operation.

The only safeguard is that the draft regulations are laid before the Houses and a resolution of the House is required.

It seems extraordinary that the Minister is taking unto himself such a wide-ranging power, one can see how many times the phrases "power", "any respect"' or "any thing" or "any power" are used in the section. I ask the Minister to engage in detail with this section before we conclude Second Stage because it appears as a warning that the contents of the Bill may not run in accordance with the Minister's expectation and if there is any difficulty he can deal with it by way of ministerial regulation.

We have abdicated power to allow Ministers legislate by way of regulation. We should engage in the legislative process here rather than delegate power to ministerial regulations to be laid in the Oireachtas Library or rubber-stamped by an Oireachtas committee. I am not happy with this provision and want to know why the Minister of State referred to every section in the Bill except section 11, which is crucial and requires a detailed explanation.

The Minister must be familiar with the case of Cooke v. Walsh in respect of medical expenses in which the Supreme Court was critical of legislation by regulation and referred to Ministers acting ultra vires without appropriate power, apparently taking upon themselves power to introduce legislation in the form of regulations. I am concerned about the application of this legislation when pitched against that Supreme Court ruling. I remind the Minister that his intention to amend any such provision or "do anything which appears to him or her to be necessary or expedient for removing that difficulty" can be achieved by way of regulation. Has the Attorney General satisfied himself and the Minister that this is in accordance with the Supreme Court decision in Cooke v. Walsh?

The path to this Bill has been long and I acknowledge the role of the Law Reform Commission in this matter. In October 1991 it published a report on the indexation of fines. No proposals were ever brought forward to implement this in any meaningful way. In 1998 the then Taoiseach informed the House that an indexation of fines Bill was "at an early stage of preparation" and would be published in 1999. That never happened. In 2000 the Comptroller and Auditor General published a value for money audit on the collection of fines based on 1998 and on foot of the report a high level group chaired by the Department of Justice, Equality and Law Reform recommended the establishment of an executive office in that Department to oversee and manage fines collection policy. The then Minister agreed but nothing happened. In July 2002, the Law Reform Commission published a report entitled The Indexation of Fines: A Review of Developments, and in response to a parliamentary question in 2002, the then Minister for Justice, Equality and Law Reform stated that a Bill to deal with the indexation of fines would be published in 2003. This never occurred.

The commitment to publish a Bill on the indexation of fines during 2004 was contained in the Government's legislative programme and it also formed part of the Government's White Paper on Regulating Better, 2004 but this never occurred. There is a clear and consistent record of inaction on this issue on the part of the Government over the past 11 years. It has voted down four Fine Gael Bills only to publish the same Fine Gael Bills in Government clothes. Our Bills have been completely subsumed in this Bill with the exception of section 11.

The Fine Gael Bill provided for the indexation of fines. There are many fines in our legislation which have not been amended or updated and do not serve as an adequate deterrent or as an adequate penalty. When they are imposed and highlighted by the courts, such low penalties bring the law into disrepute and cause it to become the subject of amusement. For example, in September 2002, a mother was convicted on a charge of being drunk and in charge of a three year old child and as a result was fined €2.00. In October 2003, a 14 year old boy was fined €5 and banned from driving for one year. It is important that at the other end of the scale we allow for a scheme for the payment of fines by instalments. It obviously will take that person considerable time to save for a fine not greater than €2,500 but greater than €1,000. The setting aside of money from one's weekly income to pay such a fine will take a long time and, in many cases, much longer than the court will allow. This is a real problem and we come across it from time to time as public representatives. For example, if a person does not appear in court and the court is unaware of the reason therefor, it is most likely the fine will be at the higher end of the scale. There is no redress other than an appeal to the higher court, the papers for which must be lodged within 14 days. It often takes longer for the recipient to be notified of the fine by post. An appeal to the Circuit Court, as we all know, may cost more than the original fine. This is a real problem.

There was a system some years ago which, unfortunately, was used to the extent of its being brought into disrepute and abandoned. It involved a ministerial direction in favour of mitigation. It was perhaps subjected on occasion to a use that may have been described as an abuse. However, it served a function in principle because there are cases where there is a clear injustice. I am not saying this legislation will deal adequately or satisfactorily with such an injustice but there is not much point in imposing a fine of thousands of euro, as the courts regularly do, on people who may not be working or clearly have no ability to pay. It causes difficulty not only for the individuals concerned but also for their families. Such fines are more likely to be imposed without a proper or adequate examination of their wherewithal to pay the fine. This is compounded because the Garda does not have any power, or wish or intent, to accept an amount less than that which is due when executing a warrant for the collection of the fine. There are many unfortunate people who have a prison sentence hanging over them like the sword of Damocles, who do not know what night or day the doorbell will ring and they will be carted off to prison because of inability to pay a fine they would be well able to pay if they could afford it.

I hope this legislation addresses this problem by providing a system of payment by instalment which would allow a person to make regular partial payments over time to satisfy an order of the court. It is essential that fines imposed on people in a position of economic disadvantage but who wish to pay can be paid in a manageable and realistic way. Thus, it can be ensured that the fine is paid without default.

I ask the Minister to provide some details on the logistics of the system from a practical point of view on the basis that there are hundreds of thousands of fines imposed. While the legislation provides for a statement of means to be provided, the Law Reform Commission stated quite strongly that the manner in which the District Court runs its affairs is such that it is impossible to carry out a thorough or meaningful examination of people's means before the imposition of a fine. We should ensure in legislation that our court system operates in a fair way. If this involves further delays owing to the need for detailed examinations of means, it will be good. There can be no lawful reason or justified excuse to say, as the Law Reform Commission has done, that what I propose could not be achieved just because the District Court is busy and would be made too busy, thus clogging up the system, if it were to carry out more detailed examinations. The fundamental function of our court system is the administration of justice. Justice will not be administered in a fair way if people are too busy to engage in the type of scrutiny that is essential to the assurance of fairness.

I am assuming the Bill will have a protected welfare rate below which a person will not be expected to make any instalments. This arose under the Enforcement of Court Orders Bill, which deals with the matter of hardship. It is important that the Minister put in place procedures that would require the courts to assess the means of a defaulter or offender before the imposition of a fine. It is important that there be clear procedures to ensure an offender's ability to pay is fully taken into consideration. That should result in the imposition of a fine that does not represent an undue or unrealistic burden on the offender. In the Bill the Minister has included a provision that the assessment of means be rebranded as "equality of impact". It is a fine phrase but meaningless unless there is a clear onus on the court, by way of procedure, to ensure means are taken into consideration in a thorough way.

On any given day, between 40 and 50 people are in prison for the failure to pay a fine or debt. Annually, almost 2,000 people are sent to prison for failing to pay fines or debts. The practice of sending these debtors to jail serves no useful purpose at all because, when the debtor is freed, the debt still remains unpaid. It is not like the purging of contempt of court as the debt still remains due. We should acknowledge in the House that the main reason people default is not that they will not pay or refuse to pay but because they cannot do so because of financial difficulties. Any proposals to allow the courts to engage in the recovery of a debt must be fair and considered.

I have fears regarding the busy nature of the District Court and the number of cases dealt with daily, which cases provide the annual statistics in the annual report of the Courts Service. I fear that the statistics would be given more weight than the need to take time to examine means so that a statement of means could be provided and the spirit of this legislation could be acknowledged by the courts and enforced in a meaningful way by building it into their procedures.

The Minister of State, Deputy Moloney, wished to downplay the number of persons in prison for the non-payment of debt. The reality is that, according to a 2006 report, 22% of all prisoners are in jail for this reason - I stand to be corrected if I am wrong. This percentage is not insignificant. At a cost of nearly €2,000 per week, it is more expensive to put someone into prison than to put them up in a posh hotel in Dublin for a week. What benefit is this having on our already struggling Exchequer?

One must also consider the chronic overcrowding in our prisons. Early this month, there were just under 4,000 prisoners in custody in the State although the total bed capacity is 3,636. Take Y

[Deputy Charles Flanagan]

Thus, we have an occupancy level of 106%, which has risen from 105% in one month. This is the shambles that is our prison system in mid-2009. Overcrowding in our prisons creates tension, which makes prisoner violence more likely. It severely hinders the capacity of the prison system to rehabilitate serious offenders. Twelve out of 15 of the State's prisons are packed beyond capacity.

This is not just a matter of prisoner comfort levels, as some might think. It is about having prisons that are safe and functioning and that serve a role. Part of the role of prison is to rehabilitate inmates in order to ensure that those who come out having served a sentence are in a position to integrate into society and play a meaningful role. Rehabilitation is not happening at present, as almost half of offenders are back behind bars within four years of release. In any event, people jailed for non-payment of debts do not require any degree of rehabilitation, training or education. What rehabilitation is required for a person who cannot pay a television licence fee? Yet 54 people were jailed last year in Mountjoy and other prisons for not having television licences. They did not hear, or chose to ignore, the rather amusing advertisements on our radio and television saying that the licence inspectors are around. For those 54 people, the ultimate result of the visit of a licence inspector to their areas was to be packed off to Mountjoy. I regret that there are no proposals to cease the practice of sending people to jail for non-payment of a debt. That is currently before the courts and should have been dealt with but has not been.

I have a number of issues to raise on Committee Stage. I ask the Minister to deal with the ministerial power to mitigate, which was an unclear area, although I will not describe it as a grey area. Since its demise there has been a gap that has not been filled, and the courts can reflect on the imposition of a rather blunt instrument. I welcome the Bill and will return on Committee Stage to what will be an interesting debate. I thank the Minister of State, Deputy Moloney, for his introductory comments.

See this speech in context