John Moloney (Laois-Offaly, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

I am pleased to present the Bill to the House. It is a good example of law reform at its best, updating all existing fines that may be imposed in the District Court and many of those that may be imposed in the higher courts, ensuring persons can afford to pay fines imposed without causing undue hardship to them or their dependants and providing alternatives to imprisonment where a fine is not paid by the due date for payment.

To give effect to these issues, the Bill can be described under three main headings. The first, that is, the indexation of fines and the second provide an improved means of assessment and for payment of fines by instalments. The third policy issue addressed in the Bill is the question of providing alternatives to imprisonment where offenders default on payment of fines.

Any approach to the complex exercise of updating fines must be underpinned by two fundamental realities. First, because the District Court is a court of summary jurisdiction which deals only with minor offences, there must be an upper limit to the level of fine that may be imposed by that court that reflects its limited jurisdiction. Second, the updated fines in the District Court cannot be greater than the maximum fines for the same or similar offences that could be imposed in the higher courts.

The indexation of fines scheme is based on a report of the Law Reform Commission in 1991 and a review of developments in the indexation of fines published by the commission in 2002. The commission undertook an in-depth examination of the effect of inflation over time on the integrity of the imposition of fines as a penalty by the courts. It also examined systems in operation in other jurisdictions. It identified two possible avenues of reform, the standard fine system and the variable fine system. The standard fine system provides updated fine maxima for all existing fine maxima. The variable fine system, also known as a unit fine or day fine system, provides for the imposition of fines in terms of units of gravity where the monetary value in each case is dictated by the means of the offender.

The Law Reform Commission, rather tentatively, initially recommended the introduction of the standard fine system. In its review of developments in 2002 it came down decisively in favour of the standard fine system. It further examined the experience of jurisdictions in which unit fine systems were adopted and recommended caution in respect of the adoption of such a system in this jurisdiction. It considered that it would be inappropriate to adopt such a system at present and that many of the positive features of such a system could be achieved by adopting its recommendations. The Bill gives effect to the main recommendations of the commission in this respect by introducing a standard fine system and placing an obligation on the courts to conduct a means inquiry before imposing a fine.

I will explain the features of the Bill in more detail. Sections 3 to 7, inclusive, introduce a standard fine system for the District Court with five classes or categories. The monetary values of existing fines are being brought up to date such that they will now regain the value they had when first introduced or last updated. There are tables of relative money values dating back before 1922, although, as the Law Reform Commission pointed out, they become less reliable as one goes further back and, in any case, in the century before 1914 prices were very stable. The tables proposed in the Bill are based on a 1914 index of 100 which is an appropriate starting point as changes in money values before 1914 were slight such that for present purposes they can be disregarded. If one wished to be exact, it would be necessary to take a particular fine and increase its value in line with increases in the consumer price index since the fine was created. This would require a separate calculation to be made for every fine imposed in the District Court. Deputies will agree that would not be practicable. However, that level of exactitude is not necessary. Instead, the Minister for Justice, Equality and Law Reform has accepted the recommendation of the commission to have a limited number of possible maximum fines. The commission recommended between three and five classes and the Minister has opted for five. These are set out in section 2. Fines not exceeding €5,000 will in future be described in legislation as class A fines; class B fines will be fines not exceeding €4,000; class C fines will be fines not exceeding €2,500; class D fines will be fines not exceeding €1,000, and class E fines will be fines not greater than €500.

When new legislation is published after the commencement of the indexation provisions of the Bill, maximum fines will not be described in such legislation in monetary terms but instead by the class to which they will belong. Existing fines will be assigned to their appropriate classes when updated in accordance with increases in the consumer price index. In this way, all fines will have regained the value they had when first created or last updated by statute.

The clearest way to illustrate how the system will work is by giving examples. A Bill passed later this year may create an offence triable summarily with a maximum fine on conviction of, let us say, €4,000. The definitions indicate a fine falls into class B where the amount of the fine does not exceed €4,000. Therefore, the Bill would state something on the following lines: "A person found guilty of an offence under this section shall be liable on summary conviction to a class B fine", instead of the present formula which is, "A person found guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €4,000". Similarly, if the maximum fine was €1,000, it would be described as a class D fine. In these two examples, the maximum fine within the appropriate classes are €4,000 and €1,000, respectively. The actual fine a court could impose would be those amounts or anything less that the court in its discretion considered appropriate. This system imposes no restrictions on the discretionary power of the court to impose the fine it considers appropriate in a particular case apart from the fact that a maximum is specified, as at present.

For a practical example of how the system will work, we need look no further than section 13. Section 13(6) creates an offence of knowingly or recklessly making a statement that is false or misleading for the purpose of an inquiry by a court into a person's financial circumstances. It states a person guilty of the offence shall be liable upon summary conviction to a class B fine and-or imprisonment for a term not exceeding six months or both. As a result, the fine will not exceed €4,000.

I provide some examples of how to find the appropriate level of an existing fine that has been updated to its real value. Not to update existing fines in line with inflation since they were first introduced or last increased would be to defeat the intention of the Houses of the Oireachtas which, in days gone by, had decided on the appropriate maximum fine for a particular offence. The first example is of an Act of 1935 which created an offence with a maximum fine on summary conviction of, in modern currency value, €200. To find the current value of that fine, one has to study the tables by reference to the year and the amount. The first reference is to the year, reference No. 7, that is, the years 1915 to 1944. The relevant amount is greater than €127 in the class A table. Accordingly, it will be a class A fine which has a maximum value of €5,000. A further example is a €500 fine in 1940 which was increased to €1,000 in 1990. The reference number in this case is 2, that is, between 1990 and 1996. It cannot be a class A fine as it is not more than €2,769, the amount opposite reference No. 2. Similarly, it cannot be a class B fine as it is not more than €1,731. In fact, it will be a class C fine as the most recent level of the fine was not more than €1,731 but was more than €692. Therefore, the maximum fine is now €2,500.

I emphasise that in the examples I have given there would be no change in the real value of the fines other than minor variations which might arise because this system does not rely on mathematical exactitude. I acknowledge that the District Court will take a little time to get used to the system, including calculating the euro equivalent of pre-2001 fines, but in time the system will run smoothly and it is superior to the alternatives. It is also true that most commonly imposed fines are regularly revised and kept up to date.

The Law Reform Commission recommended that, if practical, in the interests of clarity, all existing fines should expressly be allocated to their proper classes, using the method I have outlined, in a statute with long Schedules. The Minister has concluded this is not practical as it could not repay the amount of time such Schedules would take to prepare. However, it is more than just a question of the time such an exercise would take. It would also be difficult to guarantee the complete accuracy of the Schedules and accuracy is clearly essential in statutes. The commission, probably recognising the preparation of such long Schedules was not feasible, considered that Schedules should be prepared for the more common offences. Although this could have been done, it is considered that the level of fines for the more common offences will rapidly become assimilated into court procedures but that more seldom prosecuted offences, one way or the other, will have to be calculated. A single system whereby all fines have to be referred to the tables is probably the easiest to understand in the long run.

Ideally, the tables in sections 3 to 7 would be amended periodically in regulations to take account of inflation, but our advice is that this might be open to challenge in the courts. To avoid that risk, figures in the tables will have to be amended by way of primary legislation. Such amendments need not be made at regular intervals but can be made whenever increases in the consumer price index warrant it. There is nothing to prevent Ministers at any time from substantively increasing fines for offences in legislation for which they have responsibility. That would also have to be done by way of primary legislation. If required, it could mean changing a class D fine to a class C fine, for example.

The Law Reform Commission concluded in its report that a scheme should be devised to restore and maintain the real value of the fine maxima stated in criminal legislation. This is proposed in sections 3 to 7. The commission conceded that the design of such a scheme was not the simple task it might appear to be and that has proved to be the case. However, the Minister is satisfied that the scheme I briefly outlined is the fairest, simplest, most accurate and most legally sustainable method of indexing fines that can be imposed in the District Court and I have no hesitation in recommending it to the House. It is not as complex as it might at first appear to be. As the District Court begins to refer to the tables, it will quickly become accustomed to using them.

I mentioned two issues that are fundamental to the indexing of fines. As a court of summary jurisdiction, there must be a relatively low ceiling on the maximum fines the District Court can impose when dealing with minor offences. Article 38.2 of the Constitution states "Minor offences may be tried by courts of summary jurisdiction". The Attorney General has agreed that, for the present, the maximum fine a court of summary jurisdiction can impose is €5,000. Therefore, in the definition in section 2, the maximum fine the District Court can impose will be a class A fine, that is, a fine not exceeding €5,000. This can be increased by means of legislation in line with inflation when fines in general are updated.

It is not feasible to provide tables for fines the higher courts can impose. These courts can impose huge fines of many millions of euro or even unlimited fines. Such fines do not lend themselves to indexing, but we could not ignore higher court fines in preparing the legislation. To have done so would have meant that, where an offence was triable either way, the District Court fine might be higher than the maximum fine a higher court could impose. Other anomalies could also arise. A danger that might arise from such a situation is that the courts might be inclined to declare a particular offence was no longer a minor one fit to be tried summarily but had become a serious offence that must be tried on indictment. That could be undesirable. A factor the court takes into account when deciding whether an offence is a minor one fit to be tried summarily is the fine for which a person would be liable if convicted of the offence. The elimination of any appreciable difference between the maximum summary fine and the maximum fine on conviction on indictment, or the fact the maximum summary fine exceeded the maximum indictable fine in the same statute, would be likely to weigh heavily with a court in determining whether the offence had ceased to be a minor offence fit to be tried summarily.

The position of higher court fines was a conundrum for which there was no easy, obvious or ideal answer. It was concluded that one way to deal with this problem was to raise the maximum fines for certain offences that could be imposed on conviction on indictment in order that there was no danger that a District Court fine would be equal to or more than the maximum higher court fine for the same or similar offences. The system of indexing higher court fines agreed with the Attorney General is based on a multiplier system. Section 8 has a table of seven time periods and any fines of determinate amounts provided for or updated during each period are multiplied by an amount based on the increase in District Court fines during the same period. The reason that, unlike the other tables, there are not eight time periods is that the most recent would be multiplied by one; therefore, there is little point in providing for it in the table.

Many Irish statutes are old but still in operation without amendment. This does not necessarily mean that they are archaic; on the contrary, many have survived because they are clear and workable and still relevant. However, it does mean that in the older statutes fines have survived but with their values almost totally eroded by inflation. Even where statutes have been amended and fines updated or new statutes enacted, the value of fines can quickly be reduced, lessening their impact. It is not practical continually to bring amending legislation before the Oireachtas for no reason other than to update fines. A mechanism had to be found to ensure all existing fines of whatever vintage were updated and could, using the same mechanism, be updated at future dates, which could be determined as required by their loss of value. The scheme I have outlined provides such a mechanism. It is based on a recommendation of the Law Reform Commission which it reaffirmed in 2002. It will take the courts a little time to become fully familiar with the practicalities of operating the scheme, but that is unavoidable and it is a small price to pay for ensuring the value of fines enacted by the Oireachtas is maintained.

As I mentioned, the Law Reform Commission recommended in its 2002 report that the court, in determining the level of a fine in a particular case, should be able to take into account the financial circumstances of the offender and the burden the payment of the fine would have on him or her and his or her dependants. The commission further recommended that a court should have regard to such matters, irrespective of whether the effect would be to increase or reduce the fine so as to convey the principle of equality of impact on offenders of different means. The commission reiterated these recommendations in a further report in 2003.

Section 13 gives effect to those recommendations. The purpose of section 13 is to ensure that, as far as practicable, the effect of a fine on a person or his or her dependants is not significantly abated or made more severe by reason of his or her financial circumstances. For that purpose the court will be obliged to inquire into the person's financial circumstances and may then impose a fine that is higher or lower than, or equal to, the otherwise appropriate fine. The otherwise appropriate fine is the fine the court would have imposed but for section 13, having regard to all the circumstances of the case. In the District Court, no fine can exceed the €5,000 maximum that can be imposed in that court and in the case of individual fines, the fine cannot exceed the maximum for the offence for which it was imposed. In the rare cases where there is a minimum fine, the fine cannot be less than that minimum.

Section 13 replaces section 43(2) of the Criminal Justice Administration Act 1914 which it is now proposed to repeal. The 1914 Act provision, which was restricted to courts of summary jurisdiction, gave those courts power to take into consideration the means of the offender in so far as they appeared or were known to the court. Section 13 is not limited to courts of summary jurisdiction and is more extensive in its application by, for example, introducing the principle of equality of impact upon offenders of different means and by defining what is meant by "financial circumstances".

Section 14 is another ground-breaking initiative that will greatly facilitate a smoother and more efficient collection of fines in that it provides for payment of fines by instalments. This initiative was recommended in the Comptroller and Auditor General's report on the collection of fines in 2000 as a way of increasing the level of payment of fines, in particular where the offender had limited means. The high level group report on the collection of fines to the Committee of Public Accounts in 2001 also recommended that the facility of payment of fines by instalment be introduced as a necessary prerequisite to the introduction of harder-hitting enforcement methods, such as attachment of earnings. The high level group conceded that payment by instalments would place greater demands on the administration of the Courts Service, which will be the case.

Section 14 gives effect to those recommendations. It gives the courts power to direct that a fine be paid by instalments if it is satisfied that requiring a person to pay up-front by the due date would place that person or his or her dependants under undue financial hardship. At first glance, this provision might seem unnecessary, indeed slightly contradictory, in light of section 13 under which the court must, as far as practicable, inquire into a person's financial circumstances and impose a higher or lower fine than that which would otherwise have been appropriate, so that the effect of the fine on the person or his or her dependants is not significantly abated or made more severe by reason of those financial circumstances. However, a fine can only be abated or made more severe by so much, and the practical reality will be that the provisions relating to capacity to pay and payment by instalments will complement one another.

Imposing a fine is a judicial function and, similarly, any decision on whether it should be paid by instalments and the period for which the instalments should be paid are also judicial functions. However, the court may leave the amounts of the instalments and the intervals for their payment to be determined administratively by the Courts Service. The Courts Service can alter the amounts and intervals for payment, as it considers appropriate, as long as the full amount is paid by the latest date for payment as determined by the court.

There can be no doubt that a scheme for paying fines by instalments will pose an administrative challenge for the Courts Service. To lessen the burden, it has been decided that the payment by instalments system will apply only to fines in excess of €100. As soon as the system is up and running smoothly, that amount can, if necessary, be reviewed but for the present it is a prudent but relatively minor limitation on the operation of the scheme. It is also prudent to place a time limit for the full payment of the fine and the norm will be for the instalments to be spread over one year. However, the person on whom the fine has been imposed may apply to the court for an extension of the time and the court may grant the extension for a period of not more than a further year. In other words, there are no circumstances where the payment of the fine by instalments can be spread beyond two years. The extension of up to one year is by no means automatic. Before granting an extension, the court must be satisfied that the financial circumstances of the person who applied for the extension have changed to the extent that compliance with the original direction would cause undue financial hardship to the person or his or her dependants. The court must be also satisfied that the change in the person's financial circumstances is not due to his or her culpable neglect.

Discussions are taking place between the Department of Justice, Equality and Law Reform and the Courts Service at present to see if a way can be found to reduce the level of additional court sittings that the implementation of sections 13 and 14 could potentially entail. If some appropriate minor changes to the way those sections will operate are identified, any necessary amendments will be brought forward on Committee Stage.

The third major policy initiative in the Bill is at sections 15 to 17. Those sections provide the courts with three options as alternatives to imprisonment when a person defaults on payment of a fine. There is a perception that our prisons are cluttered up by persons who are there for no other reason than they did not pay a fine, which is not true. Approximately 1,500 persons were imprisoned last year for that reason but, on any given night, only approximately six fine defaulters were in prison. While these provisions, with the equality of impact and payment by instalments initiatives, should reduce those figures even further, that is not the only reason I am proposing to provide alternatives to imprisonment. It is socially desirable that prison be an option for fine defaulters only in the most exceptional of circumstances, such as where someone has a malign reason for refusing to pay the fine.

Section 15 will allow the courts to appoint a receiver to recover the fine or to seize and sell property belonging to a fine defaulter and recover from the sale of the property a sum equivalent to the value of the fine. This provision will apply only in cases of fines being imposed on conviction on indictment where the size of a fine would make the appointment of a receiver worthwhile. The powers generally of a receiver appointed under this section will be similar to receivers appointed for other purposes.

Section 16 provides the courts with the power to make an order for the recovery of the fine from the person in default. Such an order, which is called a recovery order, is of the same force and effect as an execution order under the Enforcement of Courts Orders Acts. In other words, it can be recovered as if it was a civil debt.

The third of the new alternatives to imprisonment is the power being given to the courts in section 17 to impose a community service order where a person has not paid a fine by the due date. At present, a community service order can be imposed only as an alternative to imprisonment where a person has been convicted of an offence.

Other provisions include amending the Criminal Justice Act 1951, the Criminal Procedure Act 1967 and the Criminal Justice (Theft and Fraud Offences) Act 2001. Section 4 of the 1951 Act provided for a maximum fine of £100 on summary conviction for an offence referred to in the Schedule to that Act. Similarly, section 13 of the 1967 Act provided for a maximum fine of £100 where a person pleaded guilty in the District Court to an indictable offence, apart from certain offences mentioned in that section. Both of those fines were increased to a maximum of £1,000 by section 17 of the Criminal Justice Act 1984. The sum of £1,000 was the maximum fine that could be imposed in the District Court in 1984. Accordingly, it is now proposed to increase those fines to the current maximum, namely, they will become class A fines. Section 53 of the 2001 Act allowed for the summary trial of offences under that Act if certain conditions were fulfilled. The maximum fine on conviction was £1,500. I also propose to increase that fine to a class A fine.

The Courts (No. 2 ) Act 1986 provided a scale setting out the maximum period of imprisonment on default of payment of a fine imposed on summary conviction. For example, on the third point on the scale, if the fine was between £250 and £500, the maximum term of imprisonment on default would be 45 days. This scale has been totally altered by significantly raising the amount of the fines and reducing the corresponding periods of imprisonment. For example, again taking the third point on the scale to illustrate this point, default on payment of a fine between €1,500 and €3,000 could result in a maximum prison sentence of 20 days. Imprisonment is the ultimate sanction for non-payment of a fine and the provisions of this Bill should greatly reduce the level of default on payment of fines. In future, the ability of a person to pay a fine will be the main factor in determining the level of fine.

When this legislation is fully operational and there has been an opportunity to examine its effectiveness, the question of whether further legislation will be necessary can be considered. It is only in the light of the practical application of the Act that it will be possible to determine, for example, whether legislation on the attachment of earnings is desirable, and, if so, the scope of any such legislation.

A fines Bill was published in 2007 and has now been withdrawn. That requires some explanation. The Parliamentary Counsel who drafted the Bill concluded that as the Bill would be used every day in the courts, in other words, more often than any other piece of legislation we pass, it should be as clear and easy to understand as possible. Accordingly, sections 3 to 7 have been redrafted and section 8 provides a totally new approach to maintaining the value of fines imposed on indictment. It was always intended that the Bill would include provisions giving the courts more powers to deal with persons who have defaulted in the payment of their fines, thus greatly reducing if not almost eliminating the imposition of imprisonment. Several such powers are now included in the Bill. To have brought forward those changes on Committee Stage would have resulted in a multiplicity of amendments and a change in the character of the Bill. It is clear that drafting a new Bill was the right approach.

While this is a.relatively short Bill, it will be shown within a short time to be an important piece of legislation. It is complex, in particular the indexing provisions, but that is a worthwhile price to pay for what is being achieved. I go further and say that is a necessary price to pay, because not to index fines could lead to some ridiculous fines having to be imposed. Not to maintain the values of fines imposed years ago only serves to frustrate the efforts of our predecessors in the House who gave so much thought to what they considered to be the appropriate financial penalties for breaches of the offences they were creating. I commend the Bill to the House.

Charles Flanagan (Laois-Offaly, Fine Gael)
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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.

Seán Sherlock (Cork East, Labour)
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We broadly welcome the legislation, which is long overdue, and wonder why the draft Bill from 2007 has not been introduced before now. However, it is now before us. It is ludicrous that a significant number of people are incarcerated on the basis that they are unable to pay fines. It is expeditious and proper that the State put in place a system to allow people to pay their fines by instalment or other means, thus negating the need to go to prison. The case was already made by my colleague in Fine Gael that the problems that persist in prisons as a result of overcrowding are in no small way attributable to the fact that people are in prison due to non-payment of fines. This is leading to an undue burden on the State and must be rectified.

There was a previous judgment in this regard. I believe it was Mr. Justice Henchy who stated that in no circumstances should a court impose imprisonment as an alternative to a fine solely on the grounds that the defendant could not afford to pay the fine considered by the court to be appropriate. Imprisonment is the most serious punishment, and if it is not appropriate because the case is not sufficiently serious, a fine should be imposed as a lesser penalty. If the defendant cannot afford an appropriate fine, the amount should be lowered, and if he or she cannot afford any fine, imprisonment should not be considered as an alternative solely on the grounds that the fine cannot be paid. This is an important point. According to that judgment, it is better for someone to walk free without punishment rather than be punished by imprisonment just because he or she has no money to pay a fine. Otherwise we are imprisoning people on grounds of poverty rather than according to the seriousness of the offences they commit. This legislation will facilitate a process whereby those people who are unable to pay their fines in one fell swoop will be able to pay by instalments. This results in greater equity in that somebody who is convicted of a crime but is not a criminal in the classic sense of the word now has an opportunity to pay the fine in smaller instalments, which is to be welcomed.

I do not understand why, when the Law Reform Commission introduces recommendations - which in this instance date back to 1991 - the legislature does not come forward with proposals in a more timely fashion to rectify matters or make the law better. This Bill was first published in 2007 and the Law Reform Commission has been speaking on this issue since 1991. Any functioning democracy should have within its remit the ability to enact laws in a timely fashion. If one considers the cost factor alone, based on the number of people who have served prison sentences for non-payment of fines, we could have saved the State countless thousands of euro if better legislation had been introduced earlier. The Law Reform Commission, from any document I have seen, has been far-reaching in its approach to these issues. This is a matter that needs to be addressed.

I do not think it is fair that the limit above which instalments can be paid is €100. This limit should be removed so that fines of less than €100 can be also paid in instalments. There are many people out there who survive on subsistence wages or rely solely on income from the Department of Social and Family Affairs, and to whom literally every penny counts. To those people a fine of as little as €50 would be a considerable burden. Provision should be made in the Bill so that a fine of less than €100 can be paid by instalment. Daily, I deal with people who find themselves in difficulty over the non-payment of refuse charges, for example. Local authorities have systems whereby €5 per week could be paid. In many such instances, the outstanding debt could be as little as €70 or €80. The same type of principle should apply to this provision, a matter I hope can be addressed.

The legislation's net effect should be to reduce the number of impecunious offenders being sentenced to imprisonment. There should be careful monitoring of sentencing practices across the board to ensure the objective is achieved. For this reason, the Bill should provide for some form of statistical analysis whereby its net effect can be quantitatively and qualitatively measured in order that we can see the knock-on effect in terms of any reduction in the number of people presenting to prison and the success or otherwise of the legislation as enacted. If the legislation is updated in future, it is important that there be a statistical analysis. In this context, the Courts Service would be an important actor.

I refer to the Bills Digest. The Oireachtas Library and Research Service issued a good document from which it is worth quoting. It states:

A problem inherent in a system of penalties based on fines is the changing value of money over time. This can deprive a fine of its punitive nature and reduce its deterrent effect.

In terms of indexation, the Schedules are clearly set out in section 2, but we will submit some amendments that will be of a semantic nature as opposed to a substantive one. A good job has been done in the legislation's drafting in terms of the changing monetary effect that will persist in future. This is welcome.

The issue of a statement of means should be addressed. If someone presents himself or herself before the court and claims an inability to pay a fine despite possessing sound financial means, by what mechanism can the judge determine whether the person has the ability to pay? While there is provision in the legislation, should it be more prescriptive? As mentioned by the Minister of State, section 13 creates an offence of knowingly or recklessly making a statement "that is false or misleading in any material respect to a court conducting an inquiry into a person's financial circumstances". Should the section be more prescriptive in seeking a statement of means by the convicted person to prevent those with means from claiming otherwise? As there is scope for someone to misrepresent his or her position to the court, it might be desirable that a statement of means be sworn by the offender who is seeking an abatement of the fine by reason of his or her circumstances.

Two issues are not provided for in the Bill, to which the Minister of State might respond. Under the Bill, could judges be trained to analyse the types of scenario that appear before them and to work with the Courts Service to ensure efficiency is built into the system? There seems to be no specific provision regarding revenue offences. Is there such a provision?

I do not wish to repeat the points made by my colleague in Fine Gael, although I could. I would like to see specific issues addressed. The Labour Party is broadly in favour of the Bill and strongly believes that it is high time to reduce the numbers presenting to prisons for, in many instances, being unable to pay fines. It is proper that legislation be introduced to prevent such occurrences. The Government must take into account the fact that many people find it difficult to pay fines of less than even €100. We also believe that, since some people might try to misrepresent their true financial positions before judges, the Bill should have a prescriptive provision vis-À-vis the presentation of a statement of means. Judges should be trained on the Bill's mechanisms and its effect should be monitored by the Courts Service to ensure its intended impact because only by means of a statistical analysis can we measure the Bill's true impact.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Ba mhaith liom fáilte a chuir roimh an Bille Fíneálacha 2009. Is trua é go raibh orainn fanacht chomh fada chun an Bhille a phlé sa Dáil. Is céim beag chun tosaigh é. Nuair a thoghadh mé ar dtús i 2002, dúirt an Rialtas go tógfaí an reachtaíocht seo agus Bille eile - the enforcement of fines Bill - gan mhoill. D'fhoilsíodh iad i 2003. I 2007, foilsíodh an Bille Fíneálacha 2007, ach stop an próiseas reachaíochta ansin. Ní raibh aon dul chun cinn maidir leis an Bille eile. Tar éis seacht mbliana, tá Bille amháin againn, ar a laghad. Tá súil agam go mbeidh Acht cuíosach forasach againn. Ba cheart go mbeimid bródúil as. Tá díomá orm, dar ndóigh, gur thóg sé an oiread sin ama. Leis an méid sin dréachtú agus athdréachtú déanta ó 2002, is mór an trua é nach bhfuil an reachtaíocht níos foirfe ag an bpointe seo. Tá súil agam go nglacfaidh an Aire le leasuithe ar Chéim an Choiste agus ar an Tuarascáil a dhéanfaidh an Bhille níos foirfe. Tá díomá orm nach bhfuil sé ag cinntiú nach rachfaidh daoine go bpriosún muna bhfuil siad in ann fíneáil a íoc ina iomlán. Tá bogadh éigin chun tosaigh déanta, áfach.

I am disappointed the Bill fails to reverse the current position whereby people continue to be detained in prisons simply as a result of the inability to repay a debt rather than a fine. The issue of a person's indebtedness is not addressed in the Bill. Another Bill might be needed to address that issue. This Bill presented an opportunity to address it and it could have been more substantial, particularly given the time it has taken us to reach this Stage.

Section 13 allows the courts to take a person's financial circumstances into consideration when determining the level of a fine with the purpose of ensuring that the effect of the fine on that person or his or her dependents is not significantly abated or made more severe by reasons or his or her financial circumstances. That is to be welcomed. The Bill, as drafted, is short on the detail with the scope for a wide spectrum of judicial determinations in respect of potentially similar circumstances as a result. Hopefully, that aspect will be given more teeth and more detail on it will be provided as we progress through Committee Stage.

I have long argued that there is a need for judicial sentencing guidelines to ensure consistency in the handing down of prison sentences. In this instance, I seek the inclusion of judicial guidelines to address the determination of fines to ensure consistency across the board. There might be a mechanism by which such provision could be included in the Bill.

Section 14 provides for the payment of fines by instalments. This is a welcome provision, especially for people on low income or those who have a substantial level of indebtedness. The courts will be able to take such circumstances into account in determining a person's ability to pay a fine. If a fine imposed is substantial, and the law determines that a fine must be substantial on occasion, it is welcome that it can be paid in this way. The absence of such a provision in the past resulted in the imprisonment of the most vulnerable of fine defaulters, namely, people who wanted to pay their fines but were not in a position to do so in advance of the due date. While on occasion, judges have taken into account people's circumstances and have often been lenient in extending a long period of time for people to pay their fines, to my knowledge, the option to pay a fine in instalments has not been available to most people. Therefore, this provision is a welcome change.

The Bill, in general, is welcome. The fact that the facility to be provided for was not available up to now resulted in a disproportionate imprisonment of social welfare recipients and others on low income in the past. According to British Home Office statistics, 76% of those who fail to pay fines are unemployed. This illustrates how the imposition of fines impacts greater on a lower socio-economic grouping.

Section 17 allows for a community service order to be imposed as an alternative to imprisonment where a fine has not been paid by the due date. This provision is very welcome. More use of the imposition of community service orders should now be made. At least now the courts are being allowed to determine in this respect, given that imprisonment involves a huge cost for the State. It is rarely beneficial and can be detrimental for the individual in question, when one considers what has happened in our prisons ranging from people being murdered, committing suicide to people going into prison not addicted to drugs and coming out addicted to hard drugs. The more people we can keep out of prison and the more we as a society can find an alternative way to punish them or to extract our pound of flesh from them for the wrong they have done to society, the better for society. In this way justice can be seen to be done.

In this instance we are concerned with fines and this provision is a way of ensuring that those who cannot afford to pay or who have not paid fines do not end up costing the State more by their being imprisoned, which was a ridiculous practice in the past. The imposition of community service orders on offenders will ensure that they pay back society in respect of the wrong they have done.

The failure of the Government to introduce such legislative provisions before now has meant that every year fine defaulters make up a significant portion of our prison population. The practice of imprisoning fine defaulters gives rise to serious human rights questions because the deprivation of liberty which should be a sanction of last resort was routinely employed against non-violent individuals. It also confounds the most basic economic logic. The position has been well articulated by the Free Legal Aid Centres when they, like ourselves, over the years have advocated community service and restorative justice schemes as the most cost-effective and appropriate alternatives especially in these circumstances. A report by them has stated:

... the supreme irony is that if a prison sentence is served, the fine is purged. Thus, the State spends a vast amount of resources (court staff, garda time and the cost of the prison stay) and gets nothing in return.

Ireland stands out from other countries in the developed world in this regard. According to National Crime Council statistics in 2006, 22% of all prison committals were for non-payment of fines. The recidivism rate among this category is exceptionally high. That begs other questions. Research by UCD covering the period 2000 to 2004 found that 85% of people jailed for not paying a fine were back in prison within three years. Across the general prison population, 25% re-offend within one year and 50% within four years.

In stark contrast re-offending rates among participants of the State's two adult restorative justice schemes in Nenagh and in Tallaght are much lower, standing at between 10% and 20%. I urge the Minister to re-examine the restorative justice programme with the view of going beyond the two pilot projects in Nenagh and Tallaght in terms of provision. There was a discussion on the programme at a committee and presentations were made in respect of both those schemes. I appeal to the Minister to accept that there is economic sense in using the programme. In terms of the administration of our prisons, it costs €60,000, €70,000 or €90,000 per annum, and maybe even more in some circumstances, to detain a prisoner in prison while it costs approximately €2,500 for a person to participate in a restorative justice scheme. That illustrates the economic sense for developing the latter model. The development of that programme would be a way of addressing not only over-crowding in some of our prisons but of ensuring that justice is done and that our justice system delivers for the public.

Not only does prison not work as a deterrent, which I have demonstrated in the figures I cited, it is not a deterrent to people defaulting on the fines they owe. Furthermore, it is vastly more expensive than its community based alternatives. That speaks for itself. In a media interview in 2004, the Governor of Mountjoy Jail, Mr. John Lonergan, gave some stark examples to highlight the disproportionate nature of, and the gross financial mismanagement that is endemic to, the current situation. He stated:

There should be other ways of getting back the value of the fine from people rather than jailing them. No one would convince me that people who don't pay fines should be imprisoned. Remember that, in such a case, when the court makes its decision it says that it feels the offence does not warrant imprisonment. Surely there must be more innovative ways of penalizing them appropriately, such as via community service.

It is welcome that the Bill addresses this point and recognises the point made by Mr. Lonergan. I refer to some cases by way of example. A County Mayo farmer was fined €6 for not having a tail-light on his tractor trailer. He refused to pay and two days in prison was the alternative. The State paid for a taxi and two gardaí to bring him from Mayo to Mountjoy where he was released the next day and his train fare home was also paid, with a total cost to the Exchequer in the region of €2,500 for a fine of €6. A woman in her late teens failed to pay the correct bus fare and was fined approximately €100. She was unable to pay the fine and was imprisoned for 14 days, at a cost to the State of almost €250 per day or €3,500 in direct prison costs. This is the type of case being addressed in the Bill, and for which I am thankful

Most community service orders operate under the supervision of the probation service. Budget 2009 reduced funding to the probation service by 3%, to €52 million, whereas the prison budget was reduced by just 2% to €386 million. Contrasting the budget allocations to the prison service versus the probation service may be a crude exercise, but it provides an indication of where the Government's priorities lie. The Government was more than happy to waste taxpayers' money during the good times, as evidenced by its stubborn refusal to cut its losses on the Thornton Hall super prison, and it also appears more than willing to waste our money during the hard times. I appeal to the Minister for Finance to properly funding the Probation and Welfare Service because it has never been properly funded. It is more crucial than ever that the probation service is given the funding required. Money will be saved on the prison budgets by introducing the community service but the probation service must have the personnel and resources needed to deliver.

That the Bill would provide judges with an alternative option to imprisonment for non-payment of fines is welcome, but it will take more than the passage of this Bill to make that alternative a reality. Commencement and resources are key and we will be dependent on the Government to deliver these. Unfortunately, past experience does not bode well. The implementation of the alternatives to custody contained in the Children Act 2001 was painfully slow, both because the relevant Ministers dragged their heels when it came to issuing the statutory instruments required to give effect to the relevant sections of the Act and because the Government refused to resource the provisions and, therefore, these did not exist as options for the Judiciary.

I am concerned that section 1 of this Bill contains a similar inbuilt get-out clause for Government. Every provision in the commencement section is conditional on the making of ministerial orders. It took seven years for the Government to produce this Bill and passing it will be the easy part. There seems to be a welcome for the Bill from all sides of the House. However, we will be dependent on the up to now unconvincing political will of the Government for its implementation. I urge that this section be amended so that commencement happens within a very short period of time of the Bill being passed. It is disappointing that the Bill fails to end the practice whereby people who are unable to keep up with payments relating to personal debt are imprisoned. The actual imprisonment trigger in these circumstances is contempt of court. Article 1 of Protocol 4 of the European convention provides that, "No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation". Article 11 of the International Covenant on Civil and Political Rights makes the same provision. However, between 2002 and 2007 a total of 1,000 people were jailed in contempt of court having failed to repay a debt. This is against a backdrop of an outdated, constrained and extremely expensive bankruptcy system. We also have no personal insolvency system akin to the individual voluntary arrangements made available in recent years in England or to the type of repayment schemes that exist elsewhere in Europe. The numbers suffering over-indebtedness in this State are rising at an astronomical rate. The figure for non-housing and non-investment-related unpaid credit balances rose from €3.9 billion in the second quarter of 1999 to €18.8 billion in the third quarter of 2008. This is a significant jump.

The issue of imprisonment for inability to pay a debt is currently the subject of a High Court challenge. An unemployed mother of two with a total weekly income of €300 is challenging the one-month jail sentence imposed on her for her failure to make weekly payments of €82 to her credit union. We cannot afford to wait around for the final outcome of this lengthy legal process and as legislators we should act now because there is a potential for this case to go the whole way to the Supreme Court and beyond. The House needs to address this issue and we will have an opportunity on Committee Stage to deal with the aspect of imprisonment due to indebtedness.

The Government should introduce amendments on Committee Stage to address the situation. Failure to do so will undoubtedly result in an exponential rise in the number of non-violent people sentenced to prison as the recession intensifies. We have seen companies go to the wall and an increase in the number of applications for repossession orders. There also will be an increase in the numbers facing bankruptcy, insolvency or prison as a result of failure to repay a debt to a credit union, a bank or a credit lending institution.

Speaking of credit lending institutions, I am dumbfounded to think there are credit institutions in this State which are legalised and licensed by the State, who are entitled to charge up to 190% interest on loans or purchases. One of these companies is on the South Circular Road. This is highway robbery in anybody's language. It is no wonder that people end up being unable to repay such institutions. They usually go to them in the first place because of their circumstances. This is a difficult issue but as legislators we have to grapple with this type of highway robbery, especially since it is legalised by the State. It is unjust and cruel to the individuals affected and will further compound chronic overcrowding in our prisons, not to mention the avoidable high cost to the Exchequer, unless we address the issue. Otherwise prison refurbishment or increase in prison capacity would be required and these would require significant investment. We cannot have people imprisoned in the Dickensian conditions which exist in some prisons. We cannot wait around, and now is the opportunity to end the plan for building the Thornton Hall super prison. We need refurbishment of Mountjoy. Greater resources must be also made available to the money advice bureaus which deal with many of these cases.

I thank the Minister for publishing this Bill and I hope we can get it through as quickly as possible with the caveats I mentioned and the need to address some of its shortcomings.

Seymour Crawford (Cavan-Monaghan, Fine Gael)
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I welcome the publication of the Bill. My colleagues on this side of the House and I have been seeking it for a long time and I have had a hang-up about the fact that this was not before the House long ago.

I will never forget the situation of a young man who desperately wanted to pay his fines but they had approached the £1,700 mark. That is many years ago and it was a lot of money then. He had not been a good boy, otherwise he would not have had the fines. He tried to have part payment accepted but it could not be. He went away to England but did not like it there. When he returned his sister got him into a good job. He was quickly brought before the local credit union, which endorsed a £2,000 loan on the Friday night. On the Friday morning gardaí took him from his house and left him in Mountjoy. No excuses were taken. He was not there very long before they found out there was no place for him. He was given a £20 note to get himself back home, he was in Three Mile House before the gardaí were back home and no £1,700 had to be paid. It was the worst thing that ever happened to him in some ways. Had the fines been attached to his income or taken on a quarterly basis he would have seen the difficulties of it and understood that if one does wrong one has to pay for it. What happened solved no problem and did not help in the future. There is no justification for that type of thing.

I could outline several other hardship cases. As anybody who is long enough about this House knows, many years ago if there was what appeared to be an unjust fine one could go to the Minister for Justice and have some easing of that. We all know that changed dramatically when the case was taken against the then Minister in Galway. There is no means of easing a fine now. I have come across some horrible cases where people genuinely could not afford to pay the fines imposed on them and they were in grave difficulty. When one considers that 276 debt defaulters finished up in jail last year and it costs €2,000 each per week to keep them there, one realises we have to move from that system.

The Bill provides for payment of fines by instalments, gives the courts the powers to impose a community service order for non-payment of fines and provides improved means of assessing the capacity of persons to pay a fine to achieve equality of impact. This is important. The previous speaker mentioned a case in my home town on Monaghan which is going before the courts and could have implications for how money is paid to institutions in future. It is important that people realise when they borrow money they must pay it back by whatever means and if it can be done by instalments in a reasonable fashion that is better than sending them to prison.

Fine Gael has been pushing this issue for a long time. We produced a number of Bills, from the 1998 one with the former Deputy Jim Higgins, Deputy Jim O'Keeffe in 2004, then Senator Brian Hayes in the Seanad in 2004, Deputy Jim O'Keeffe also introduced another Bill, the Fines Bill 2004 and we sponsored the Enforcement of Court Orders Bill in 2006. That is going back over a long period of time. With the exception of the one in the Seanad, I was present for every discussion and on each occasion we were promised when there was a vote against us that it was only a matter of weeks or months before a proper Bill would be brought in.

It is interesting that this Bill contains the majority of the provisions proposed in the previous Fine Gael Bills. We were not far wrong. We were the Opposition party and did not have all the expertise the Government had. It would not have been difficult for the Government to have accepted of those Bills and moved it forward, but it was not done because funds were available to keep people in jail and the cost did not matter. We had gardaí going around the country trying to collect fines when their time could have been used to much better effect. This Bill should be put through the system quickly and we should ensure the gardaí are doing the jobs they are trained to do and are not out there as debt collectors. We should also ensure the jails are used for the people who should be there, and they should not be released early. This is the importance of this Bill.

From my involvement here in Dáil Éireann I am glad to see the Bill move forward. However, we must seriously examine the way we conduct our business. Why, for party political reasons, do we turn down these issues just for the sake of turning them down? We have avoided dealing with this issue since 1998. It was seen as necessary then by people on this side of the House and it took 11 years to bring it forward. It reminds me of a situation with carers. When I sought the half-rate carer's allowance 12 years ago we were told it was illegal. Three years ago, coming up to an election, it was brought in and has proved to be a valuable asset for those who are eligible for it.

To be relevant to the country, whether in Government or in Opposition, we should not play opposition just for the sake of it. If somebody has a good idea we should go forward with it. The record will clearly show that Fine Gael over the past number of years has had a good, worthwhile idea, tried to use its Private Members' time in a positive way, but was ignored. Now the times are more difficult and people realise we must get better value for money, and this Bill is introduced. This Bill will give better value for money and will avoid putting people in prison unnecessarily.

I do not know if there is a provision dealing with attachment of fines in the Bill. I do not have time to read the Bill and I apologise for that. It is important that fines could be attached to a job, if the person is lucky enough to have one, or to social welfare to avoid arrears in paying the fine. We brought forward that proposal in a Bill and I see no reason it cannot be included in this one. I urge the Minister to deal with that. It may require another piece of legislation but it is important that people are able to pay their fines by sums or attachment.

I welcome the proposal. I will leave it to my colleague, Deputy Charles Flanagan, to tease out the changes that may be needed in it. That is his role as our party's spokesperson. I am sure this can be addressed and I hope if there are items he considers need to be changed that his logic will be accepted and the Bill will be passed as quickly as possible.

Pat Carey (Dublin North West, Fianna Fail)
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I wish to thank all Deputies who spoke and ensured a positive and interesting debate on the fines system in this country.

The Minister of State, Deputy Moloney, explained in his opening speech that the system of indexing proposed in the Bill might appear, on the face of it, quite complex. However, I suggest that although several tables of figures might seem intimidating at first the scheme of indexation proposed in the Bill is not too difficult to understand. It is the system recommended in two reports by the Law Reform Commission. There is no realistic alternative scheme. We do not want to end up with a scheme under which a wealthy person might be fined several thousand euro for throwing a cigarette butt on the pavement, for example. Even if one believes that someone who has that sort of money could afford to pay a huge amount and deserves to pay it, there would be two insurmountable obstacles in the way. First, the courts would never accept that such a fine was proportionate to the offence committed. Second, as was explained earlier, the District Court is a court of summary jurisdiction and there must be an upper limit to the amount of fine such a court of limited jurisdiction could impose. Therefore, not only is there no realistic alternative, there simply is no alternative.

Deputies Flanagan and Sherlock raised the question of persons being imprisoned for non-payment of fines. Of course nobody wishes to see persons imprisoned for non-payment of a fine and the Bill should greatly reduce the numbers imprisoned due to the equality of impact and payment by instalments provisions as well as the proposals aimed at providing the courts with alternatives to imprisonment. The size of any fine imposed by the courts will be directly related to the impact of the fine on the convicted person and his or her dependants. However, there are persons who can afford to pay but will not. They ignore all opportunities and wilfully refuse to pay their fines. We would be foolish to abolish all possibility of imprisonment in such cases.

There seems to be an impression that the prisons are full of persons incarcerated for non-payment of fines. This is not true. As the Minister of State, Deputy Moloney, said in his opening speech, a survey taken at random on two days showed a total of six persons in prison solely on foot of committal warrants ordering their imprisonment in lieu of non-payment of a fine. On another day a total of 11 persons were in custody for non-payment of a fine. It is fair to assume that on any given day the number of persons in prison for non-payment of a fine is in single figures.

A total of just over 1500 persons were imprisoned in 2007 solely for non-payment of fines.

Charles Flanagan (Laois-Offaly, Fine Gael)
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That is not in single figures. While the script is before the Minister of State, 1,500 is not single figures.

Pat Carey (Dublin North West, Fianna Fail)
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The single figures issue refers to a particular day. Concerning non-payment of fines, most of those imprisoned would have had a very short stay in prison. The issue is not one of prison spaces being taken up by fine defaulters but of ensuring that persons are not imprisoned either because they cannot afford to pay the fine or that payment would entail undue hardship for the person and his or her dependants. That issue is more than adequately dealt with in the Bill.

Staying with the issue of imprisonment, I draw attention again to section 10, which amends the table in section 2 of the Courts (No. 2) Act 1986 that sets out the maximum terms of imprisonment for default on payment of fines imposed in the District Court. A maximum term of imprisonment is provided and the length of terms depends on the level of fine default. Section 10 substantially reduces the periods of imprisonment and increases the levels of fine default in that table.

I shall address a number of issues that were raised by speakers. Deputies Flanagan and Ó Snodaigh asked why the Bill did not deal with failure to pay a civil debt. Imposition of fines on conviction of offences and failure to pay a civil debt are two totally different concepts and I am sure Deputy Flanagan knows this better than I do. They need to be considered as such despite efforts to link them, especially in the press. A fine is a State-imposed criminal sanction while the other relates to the enforcement of court judgments in respect of contract or civil debt. There are no immediate plans to bring forward legislative changes in regard to civil debt but the legislation is being kept under review.

Deputy Flanagan referred also to several Private Members' Bills published by Fine Gael over the years, as did Deputy Crawford. The most relevant of these is the 2004 Bill which was published by Deputy O'Keeffe in 2004. It provided for a system of indexation and also for payment of fines by instalment as follows: "The Minister may, by regulation, provide for the establishment of procedures under which a court may order payment of a fine by way of instalments". That hardly compares to the detailed provisions for payment by instalments set out in section 14 of this Bill.

The relevant section 14 of the Fine Gael Bill states: "The Minister may, by regulation, provide for the establishment of procedure under which a court, when imposing a fine must take into consideration the means of the offender". In response, the Minister would say these are simply enabling provisions. The hard work starts when trying to put detail on them. There would also be a technical problem in that giving effect to those provisions in regulations would almost certainly be regarded by the courts as being too substantive to be dealt with in secondary legislation. The Fine Gael Bill made no provision for alternatives to imprisonment and therefore that Bill bears very little resemblance to the Bill we are now debating. To say it does is misleading, to say the least.

Deputy Crawford asked whether the Bill provides for the attachment of earnings. Providing for attachment of earnings would be problematic at the present time and difficult to operate fairly. It would be futile to introduce attachment legislation that did not include attachment to social welfare entitlements and this would be a particularly inopportune time to provide for that. There would also be practical difficulties with persons who are not in the type of permanent employment that has a capacity to allow attachment to be implemented. It is well worth seeing how the provisions in the Bill and other administrative sanctions that make paying fines easier work in practice before considering further options.

Deputy Flanagan also referred to section 11. That section, as the Deputy noted, is unusual but not unique. If any unforeseen difficulties arise in the implementation of the index provisions the Minister can attempt to overcome them by regulations. It is regarded as unlikely that any regulations will be necessary but it is prudent to provide for that possibility. Any regulations would be enacted only to ease implementation from an administrative point of view and would be in compliance with the decisions of the Supreme Court.

Deputy Flanagan referred also to the logistics of implementing the Bill. The Courts Service will have to make full use of modern technology in administering the legislation, especially the collection of fines. Detailed procedures will be set out in the rules of court.

Deputy Sherlock inquired as to why the 2007 Bill was not brought before the House. I believe the Minister of State, Deputy Moloney, dealt fully with that point in his opening speech. I would add that this legislation proved to be complex to prepare. Deputy Sherlock also suggested that fines of less than €100 should also be payable by instalments. The purpose of limiting the instalments provisions to fines above €100 is to reduce the burden on the courts, at least initially. The sum of €100 is relatively modest but in time it may be possible to abolish that limit.

Deputy Sherlock asked whether section 13 should be more prescriptive. This can be considered but, on the face of it, section 13 seems to deal adequately with the possibility of false statements. The Deputy also raised the question of the training of judges. Judicial training is dealt with through the Judicial Studies Institute.

I believe I have addressed all the issues raised in this debate and I thank all the Members who contributed to it.