Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

A few issues have been raised. Deputy O'Callaghan noted how a judge might react if this legislation were to come before him or her. However, we should think first of the lawyer who might take a case on behalf of a bank or vulture fund, and how he or she would potentially argue it. A judge has to take a number of things into consideration when evaluating legislation. First and foremost is the text and letter of the legislation. However, there is also previous jurisprudence, and much of the previous jurisprudence says that if legislation is to be retrospective, it has to explicitly say so. This legislation does not explicitly say so. There is a presumption against retrospectivity. That sounds like a strong enough case for a lawyer to make to me. I am sure judges can also take the intention of the legislature into account. However, as far as I am concerned, it is a strong factor that a barrister advising a bank or vulture fund might tell them that there is an avenue to argue that a particular repossession case does not fall within the legislation.

I take the points Deputies Michael Healy-Rae and Fitzmaurice made regarding the Minister of State's good intentions on board. I respect that, and this is decent legislation. I acknowledge the good motivations from which the Minister of State works, and I hope the legislation achieves its intended outcome. However, we are trying to get this Bill through to ensure it helps people, and we are tabling this amendment because we are not sure the Bill applies to all the people we think it should apply to, namely, the tens of thousands of people facing repossession. We are not confident of that, and if we are proven to be correct in our concerns, then this legislation is unfortunately not worth a great deal. This could be rectified relatively easily by making it explicitly clear that the legislation applies retrospectively, and the reasons that have been given for not adopting this amendment seem weak. The Minister of State is essentially saying that the text does not fall within the exact structure the Department of Justice and Equality generally likes. The wording of the amendment is crystal clear that this legislation would apply to all mortgages regardless of when they were created. We need that clarity in order to ensure the tens of thousands of people we want this legislation to protect are covered by it.

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