Bernard Durkan (Kildare North, Fine Gael) | Oireachtas source

This is déjà vu for some of us. We are reviewing an item we reviewed before, something that occurs with many pieces of legislation. A number of speakers have mentioned updating legislation. It is important that when we update legislation, it should remain updated. That should be the purpose of the exercise and we should not have to revisit it after a couple of years. In 2010, whatever the reasons and reservations were about its application, the legislation did not become fully operational, as has happened in the case of a number of other Bills which remain on the Statute Book. The Charities Act is the most recent example that comes to mind.

I wish to make a couple of points on the Bill. First, as a number of people have noted, a fine is imposed when a person has not discharged a duty or has broken the law, whatever the case may be. There are differences. The television licence has been referred to, for example, as have the numbers of those who have been imprisoned for failing to pay for their licence. For the life of me, I cannot understand why it has not been found possible over the years to prevent the person having to go to court in the first place. When a person is detected for not having a television licence, there should be a provision whereby he or she must then take out a licence or buy into a deferred payment system. That could then be taken into account in the determination of the fine or penalty.

What really takes me to the fair is where a person has not been able to pay for a television licence, which is very often the case in the prevailing circumstances, not necessarily only currently but over the years. As a public representative, I have dealt many times with cases where people were in prison for failing to pay for their television licences. Why did they not do so? There were so many other competing demands and the tendency was to put off paying. It is fine for people to say those involved should not have had a television if that was the case. Perhaps it was the only social outlet they had. Perhaps there was nothing else for them. Perhaps they were on a restricted income and could not afford it. The fact was they had the television, incurred the penalty and served time in prison - often more than 24 hours, which is appalling. That applies not only to this time but goes back throughout the past 20 or 30 years. If people want chapter and verse I can give them plenty.

This is the point at issue. When the crime, or whatever it may be, is detected and the person goes to court, how will it become possible for that person to pay what was not paid before and pay a penalty at the same time? That always takes me to the fair. I cannot understand it. It reminds me of the lenders, the banking system, in cases where a person falls behind in his or her payments. Some other person decides that in order to bring the payments up to date, they will be doubled up over the coming 12 months or so, with no chance whatsoever of achieving success in that situation. That is the first thing that must be taken into account. When the courts impose a fine or a prison sentence in a domestic case such as non-payment of a television licence, regard should be had to the ability of the person to pay and, ultimately, to the ability of that same person to pay a fine on top of the licence fee. I do not refer to people who deliberately avoid having to pay what is due by going through the prison system, abusing it as a means of getting away from payment. I do not accept anybody's right to do that.

One other aspect concerns me a little. As outlined in the Bill, a number of interventions are now required in cases when a person who fails to pay a fine has an attachment or a recovery order imposed by the court. Where it is not possible to make either order, the court may make a community service order. A visit back to court is again required. I would have thought that, in the first instance, the court should set out where the means and wherewithal could be found to discharge the fine. Otherwise, more time will be wasted, which creates a further burden on both the system and the person involved.

Recidivism was referred to by other speakers. There are two issues in that regard. First, there is the person who repeatedly commits a criminal offence. The courts are full of people who do this, who commit multiple crimes while on bail. The Minister referred to this during Question Time yesterday. Obviously there is a flaw in the system. These are people who deliberately flout and abuse the system, using it to continue doing what they have been doing. These are not hardship cases but are people who deliberately set out to break the law and profit thereby, punishing society at the same time. They do so with impunity, as far as I can see. How many times have we seen situations where people have a string of offences, have warrants issued against them for failure to appear before the courts, have committed crimes while on bail, and then get bail again? We need to have regard for that situation in the course of what we are doing here.

The Bill states that when an attachment or recovery order is made and the fine or part thereof remains outstanding, the court may make an order for community service. That is another intervention. Why not deal with that and get it out of the way in the first place by making whatever provision needs to be made? A number of options are available then to the unfortunate person who, through no fault of his or her own, has incurred the penalty.

I was dealing with a case recently where a person stopped outside the St. Vincent de Paul shop and was clamped. The person will obviously have to pay, but I cannot understand how it could not be possible for the attendant to work out for himself where the person might be. The person was not going there for the good of his health but for a particular purpose. The person did have an entitlement in this case to a special parking order which was displayed but which was out of date, but at least that was an indication of the person's particular circumstances. Of course, there was no such luck. This was the application of the rule, as somebody determined, and I believe that was wrong.

I have as much knowledge of the inside of a prison as the outside of a prison, and more knowledge of the former than many in here. It is an intimidating experience and one that will last with the person all of his or her life. I dealt with the case of a widow who was imprisoned for failure to pay her television licence. It was an awful experience, because her children were put into care while she was in prison. Somebody was trying to illustrate whatever they were trying to illustrate at the time, but I thought it was a callous act on the part of the person who determined that. There are no excuses in any caring society that will allow something like that to happen. There should be due regard for the degree to which it fails to be caring.

What are the reasons for an attachment order? Is it for a criminal reason or has the fine or penalty been imposed for negligence on the part of the person concerned? Is it due to hardship the person incurred previously? What are the circumstances? I strongly urge that the circumstances of the case be taken into account in the very first instance when this case goes before the courts, instead of going back repeatedly and making various interventions, which will cost the taxpayer huge sums of money. All of these interventions cost a serious amount of money.

I wish to digress for a moment. Those of us who deal with local authority housing applicants know that there is a HPL1 and HPL2 form that must be signed by the applicants before they get registered for a local authority house. It can take six months to register them, so there is a lot of toing and froing involved. Both parties to the application must have this done. In the event that they had a house previously, this form cannot be signed by the Revenue Commissioners because they owned a home previously. However, we have to send it to the Revenue Commissioners, who must then write a letter back stating that they cannot sign this form because they had a house previously. That is about the daftest application of the law that I have ever heard. When it is known and admitted beforehand that the person concerned cannot have this particular form certified, why does it have to be sent to the Revenue Commissioners, who will tell us the story in any event? If a person has been overpaid social welfare, is that through deliberate fraud or an oversight on his part or through an oversight on the side of the Department of Social Protection? I think those circumstances must be taken into account as well. We cannot treat equally the person who inadvertently breaches the law and who finds himself in a particular situation, and then finds himself subject to an attachment order as well, which will take the original amount plus costs and penalties, creating an even greater burden and a spiral out of which that person can never climb.

I particularly support the points made by Members about the 12 month period. The circumstances of the case must be taken into account. In some circumstances it may be possible for the person to be fined over a 12 month period by way of deferred payments, but in other cases it may not be possible. It may be totally outside the person's ability to meet the costs in a 12 month period. The options should be made available in the first instance. There should not be a situation where the person must go back to court or some other body to resolve the issue.

I would like to make a point about the appointment of a receiver in respect of a debt that has not been discharged. I wonder about some of those things in the current climate. We all deal with constituents who have faced the courts in respect of the non-payment of mortgages, an inability to pay mortgages and so on. I hope that the tendency does not arise in future for lending institutions to take the last option first, because a number of them are doing that now. For example, some agencies will tell people that repossession or sale is the last option. However, some of them are telling them that the first option is voluntary surrender. That is not an option; that is enforcement. In these cases, I urge that the circumstances of the person charged be borne in mind in the very first instance whenever an arrangement is made, in court or elsewhere, to resolve the problem. Otherwise, it cannot be done. The issue will continue forever, get worse and worse, and eventually the person will end up having to spend a considerable time in prison to discharge something that could have been resolved more amicably in the first place.

Data sharing is readily available, as far as I am concerned, but the Bill refers to the sharing of data between the Revenue Commissioners, the Department of Social Protection and the Courts Service. In the context of whatever may happen there, I strongly urge once again that the circumstances be taken into account. If that is not done, we will not resolve this problem at all. We will be back here in two or three years if it is not practical in the way it applies to the public.

None of us would encourage people not to discharge their debts. Of course we encourage people and we always try to help them out in the most positive way possible. It is also worth remembering that, in the current climate, there are competing demands and difficulties for people at all levels of our society. We have to be conscious of their circumstances and try to do what we can to assist them by way of practical advice. At the end of the day, we hope that the passage of this Bill will improve the situation, that it will not become an impediment to what we are trying to do, and that it will not become administration laden to such an extent as to make it impossible to do anything.

See this speech in context