Seán Sherlock (Cork East, Labour)

We still await the Law Reform Commission's paper in that regard and hope it will lead to the overhaul of the system.

We need to strike a balance between the rights of the debtor before the court and the rights of the creditor to obtain payment. The Minister stated there were 4,300 applications for enforcement orders to the District Court and that 186 people were imprisoned so far this year. There is no doubt that figure will rise. When one takes into account those in prison for non-payment of fines, we have more trouble is worth it inside our prisons, where people are there for civil rather than criminal issues. It is something that needs to be addressed.

This brings me back to FLAC. Why not look seriously at the proposal launched on Monday called To No One's Credit and engage on those issues in a meaningful way? I suggest the Government, particularly the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, has its face set against any idea that seeks to look more laterally at the issue. The fact remains that since Adam was a boy people have reneged on their debts and no government, no matter how well-intentioned, will be able to legislate for human behaviour. I suggest a little bit of common sense and the accommodation of new ideas would be the way to go. We can no longer afford the notion that people would be jailed for debt where it is proven that they genuinely cannot pay.

Ms Justice Laffoy, on page 82 of the judgment, states that the application of elements of the test to section 6 illustrates that it is disproportionate interference with the constitutionally protected right to liberty because the objective of imprisoning a debtor for failure to comply with an instalment order is to procure the discharge of arrears of instalments. She refers specifically to a statutory procedure under which a debtor who is unable to discharge the arrears is imprisoned because of the absence therein of procedures, including procedures which give effect to the debtor's right to fair procedures under the Constitution, which ensures that the judge ascertains that the debtor is unable to discharge the arrears, cannot be said to be rationally connected with the objective. This speaks to points we made on the attachment of earnings procedures. She states such a procedure is arbitrary, unfair and not based on rational considerations, and is an unreasonable and unnecessary interference with the debtor's right to personal liberty.

The question is whether this aspect of her judgment has been remedied by the new section 6. I am a layman; I am not solicitor, as are my two learned colleagues, but perhaps the Minister could respond and let us know whether that aspect of her judgment has been remedied. Could the statutory scheme she refers to be applied by way of an attachment of earnings procedure? She states that in circumstances where a debtor has some resources to meet a debt, a statutory scheme which does not require the creditor to seek redress by attaching those resources does not impair the debtor's right to liberty as little as possible. We wish to speak to that issue by way of the amendments we have tabled.

Ultimately, the question for us is whether we need to amend the legislation to give voice to Ms. Justice Laffoy's judgment so as to offset the risk that the Bill may be struck down again on foot of a legal challenge in these strange times. Where we guillotine at will, we risk the prospect of a challenge when the space for proper debate is curbed. Proper space and time has not been allocated for debate on this matter. It should be stated, for historical purposes, that guillotining legislation such as this does the Legislature no good. I often think that when we legislate in haste, it may come back to haunt us.

We welcome section 6. It will get the Minister over the hump, so to speak, regarding the McCann judgment, but there are other issues which need to be addressed. If we had more time and debate, a greater allowance for amendments and more expert opinion on this matter, perhaps we could have addressed it more fruitfully.

See this speech in context