John O'Donoghue (Kerry South, Ceann Comhairle)
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Amendment No. 1 is in the name of Deputy Charles Flanagan while amendments Nos. 1b, 2 and 3 are related. Therefore, amendments Nos. 1, 1b, 2 and 3 may be discussed together by agreement.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I move amendment No. 1:

In page 3, before section 2, to insert the following new section:

"2.—The Act of 1940 is amended—

(a) by the repeal of sections 6 and 9, and

(b) by the insertion of the following sections after section 5:

6.—Where a debtor is liable, by virtue of an instalment order, to pay a debt and costs either in one payment or by instalments and such debtor fails to make such payment or fails to pay any one or more of such instalments accruing due while such an order is in force at the time or times appointed in that behalf by such order, the creditor may, at any time while such order is in force or within 12 months after it has ceased to be in force, apply to a Justice of the District Court for an Attachment of Income Order.

7.—'Attachment of Income Orders' means an Order made under section 8 or section 17.

8.—(1) On application to the relevant court, by a creditor named in a court order, the court may make an attachment of earnings order.

(2) An attachment of earnings order—

(a) shall be an order directed to a person who (at the time of the making of the order or at any time thereafter) has the debtor in his or her employment, and

(b) shall operate as a direction to that person to make, at such intervals as may be specified in the order, deductions of specified amounts.

(3) An attachment of earnings order shall not be made without the consent of the debtor unless the court is satisfied that the debtor has, without reasonable excuse, defaulted in the making of any payment under a court order.

(4) An attachment of earnings order shall—

(a) specify the normal deduction rate, that is to say, the amount of the debtor's earnings which the court considers reasonable to be applied in satisfying the court order, but such rate should be no greater than is necessary for the purpose of—

(i) securing payment of the sums falling due from time to time under the court order, and

(ii) securing payment within a reasonable period of any sums already due and unpaid under the court order and any costs incurred in proceedings relating to the order which are payable by the debtor,

(b) specify the protected earnings rate, that is to say, the rate below which, having regard to the resources and the needs of the debtor, the court considers it proper that the debtor's earnings should not be reduced by a payment made in pursuance of the attachment of earnings order,

(c) contain such particulars as the court considers appropriate for the purpose of enabling the debtor to be identified by the person to whom the order is directed.

(5) The particular of an attachment to earnings order may be agreed on consent by the debtor and the creditor in advance the hearing of an application under this section and may be ruled on by the Court as an order under this section.

(6) Payments under an attachment of earnings order shall be in lieu of payments of the like total amount under the court order that have not been made and that, but for the attachment of earnings order, would fall to be made under the court order.

9.—(1) A court registrar or court clerk as may be specified by an attachment of earnings order shall cause the order to be served on the employer to whom it is directed and on any subsequent employer of the debtor and such service may be effected by leaving the order at, or sending the order or a copy of the order by prepaid registered post to his or her place of business or residence in the State.

(2) Where an attachment of earnings order or an order varying it is made, the employer for the time being affected by it shall comply with it within 10 days of it being served on him or her.

(3) On any occasion where a person makes, in compliance with an attachment of earnings order, a deduction from a debtor's earnings, he or she shall give to the debtor a statement in writing of the total amount of the deduction.

(4) Where an attachment of earnings order is served on any person and—

(a) the debtor is not in his or her employment, or

(b) the debtor subsequently ceases to be in his or her employment, that person shall, within ten days from the date of service or, the date of cesser, give notice of that fact to the court.

(5) An order made under subsection (1) shall be confidential and the employer shall not make it known to any person other than those persons necessary for the payment of wages, and such persons shall themselves have a duty not to disclose the existence of an attachment of earnings order.

10.—Upon application to the court for an attachment of earnings order, or at any subsequent time which the court deems fit, the court may—

(a) order the debtor to give to the court, within a specified period, a statement in writing signed by him or her of—

(i) the name and address of any person by whom earnings are paid to him or her,

(ii) specified particulars as to his or her earnings and projected earnings and as to his or her resources and needs, and

(iii) specified particulars for enabling the debtor to be identified by any other employer, including any future employer,

(b) order any person appearing to the court who has the debtor in his or her employment to give to the court, within a specified period, a statement signed by that person, or on his or her behalf, of specified particulars of the debtor's earnings and projected earnings.

11.—Where an attachment of earnings order is in force—

(a) the debtor shall notify the court in writing, within 10 days of every occasion, in which he or she leaves any employment, or becomes employed or re-employed,

(b) the notice referred to in paragraph (a) shall include particulars of his or her earnings and projected earnings from the relevant employment,

(c) any person who becomes an employer of the debtor and has knowledge that an order is in force shall, within ten days of acquiring that knowledge, notify that court in writing that he or she is the debtor's employer, and include in the notification a statement of the debtor's earnings and projected earnings.

12.—(1) Where an attachment of earnings order is in force, the relevant court shall, on the application of—

(a) the employer concerned,

(b) the debtor, or

(c) the person to whom payments are being made under the order,

determine whether payments (or any portion thereof) to the debtor of a particular class or description specified by the application are earnings for the purpose of the order, and the employer shall give effect to any determination for the time being in force under this section.

(2) Where an application under this section is made by the employer, he or she shall not incur any liability for non-compliance with the order as respects any payments (or any portion thereof) of the class or description specified by the application which are made by him or her to the debtor while the application or any appeal in consequence thereof or any decision in relation to the application or appeal is pending, but this shall not, unless the court otherwise orders, apply as respects such payments (or any portion thereof) if the employer subsequently withdraws the application or abandons the appeal.

13.—(1) Where a debtor is in the service of the State, a local authority for the purposes of the Local Government Act 1941, a harbour authority within the meaning of the Harbours Act 1946, a health board, a vocational education committee established by the Vocational Education Act 1930, or a committee of agriculture established by the Agriculture Act 1931, or is a member of either House of the Oireachtas—

(a) in a case where a debtor in the service of the State is employed in a department, office, organisation, service, undertaking or other body, its chief officer (or such other officer as the Minister of State, by whom the department, office, organisation, service, undertaking or other body is administered, may from time to time designate) shall, for the purposes of this Act, be regarded as having the debtor in his or her employment,

(b) in a case where a debtor is in the service of such an authority, board or committee, its chief officer shall, for the purposes of this Act, be regarded as having the debtor in his or her employment,

(c) in any other case, where a debtor is paid out of the Central Fund or out of moneys provided by the Oireachtas, the Secretary General of the Department of Finance (or such other officer of the Minister for Finance as that Minister may from time to time designate) shall, for the purposes of this Act, be regarded as having the debtor in his or her employment, and

(d) any earnings of a debtor paid out of the Central Fund or out of moneys provided by the Oireachtas shall be regarded as paid by the chief officer referred to in paragraph (a) or (b), as the case may be, the Secretary General of the Department of Finance or such other officer as may be designated under paragraph (a) or (c), as the case may be, as may be appropriate.

(2) If any question arises in proceedings for, or arising out of, an attachment of earnings order as to what department, office, organisation, service, undertaking or other body a debtor in the service of the State is employed in for the purposes of this section, the question may be referred to and determined by the Minister for Finance, but that Minister shall not be under any obligation to consider a reference under this subsection unless it is made by the Court.

(3) A document purporting to contain a determination of the Minister for Finance under subsection (2) and to be signed by an officer of the Minister for Finance shall, in any such proceedings as are mentioned in that subsection, be admissible in evidence and be deemed, unless the contrary is shown, to contain an accurate statement of that determination.

(4) In this section references to a debtor in the service of the State include references to a debtor to whom earnings are paid directly out of moneys provided by the Oireachtas.

14.—(1) The relevant court may, if it thinks fit, on the application of the creditor or the debtor, make an order discharging or varying the antecedent order.

(2) Where an order varying an attachment of earnings order is made under this section, the employer shall, within ten days of it having been served upon him or her, comply with its terms.

(3) Where an employer affected by an attachment of earnings order ceases to have the debtor in his or her employment, the order shall, in so far as that employer is concerned, lapse (except as respects deductions from earnings paid after the cesser by that employer and payment to the person in whose favour the order was made of deductions from earnings made at any time by the employer).

(4) The lapse of an order under subsection (3) shall not prevent its remaining in force for other purposes.

15.—(1) An attachment of earnings order shall cease to have effect upon the discharge of the court order.

(2) Where an attachment of earnings order ceases to have effect, the clerk or registrar of the relevant court shall give notice of the cesser to the employer.

16.—(1) Where an attachment of earnings order has been made, any proceedings commenced under section 8(1) of the Act of 1940, for the enforcement of the court order against the debtor shall lapse and any warrant or order issued or made under that section in any such proceedings shall cease to have effect.

(2) An attachment of earnings order shall cease to have effect upon the making of an order under section 8(1) of the Act of 1940, for the enforcement of the court order against the debtor.

17.—(1) The Minister for Social and Family Affairs shall make regulations to address circumstances where—

(a) a person who is entitled to income support, and

(b) has defaulted on the discharge of a court order,

so as to enable the court to make an order directing the Minister to deduct sums from any amounts, not below the protected welfare rate, payable to the debtor by way of income support, in order to secure the payment of any sum which is or forms part of the court order.

(2) The regulations shall specify the protected welfare rate, that is to say, the rate below which, having regard to the resources and the needs of the debtor, the Minister considers it proper that the debtor's income support should not be reduced by a payment made in pursuance of the attachment of earnings order and for the purpose of this section the protected welfare rate shall be prescribed by the Minister, to be reviewed annually.

(3) The regulations may include provision—

(a) that, before making an application, the court shall make an enquiry as to the debtor's means,

(b) allowing or requiring adjudication as regards an application, and provision as to appeals and reviews,

(c) as to the circumstances and manner in which and the times at which sums are to be deducted and paid,

(d) as to the calculation of such sums (which may include provision to secure that amount payable to the debtor by way of income support do not fall below prescribed figures),

(e) as to the circumstances in which the Minister is to cease making deductions,

(f) requiring the Minister to notify the debtor, in a prescribed manner and at any prescribed time, of

(g) that, where the whole amount to which the application relates has been paid, the court shall give notice of that fact to the Minister.

(4) In this section, 'Minister' means Minister for Social and Family Affairs.".".

This goes to the heart of the Bill and it was a matter that was discussed at some length earlier. It requires that, as an alternative to a sentence of imprisonment, an order become attached to the earnings of the individual against whom the order is sought. This is a far more practical way of dealing with it and it would benefit the debtor as an alternative to a term of imprisonment.

I heard the Minister state that only a small number of people for civil debt are sentenced to prison in any event. Nevertheless, a term of imprisonment for people the vast majority of whom would never have spent time in prison previously can be an ordeal of considerable significance. The Minister stated it only occurs in a small number of cases. The fact is there were 276 persons imprisoned for failure to pay a civil debt last year.

The period of time has been reported as being reasonably short, but I understand the average period is 20 days. This is a significant period of time for somebody who did not commit any criminal offence, who did not have any involvement with the criminal law and who merely, in many cases, could not pay the debt.

I will not rehearse the arguments. I addressed them earlier and they were dealt with in a considered way in the Seanad. However, we must distinguish between inability to pay a debt and unwillingness to pay a debt - cannot pay versus will not pay. In the amendment, were it to be accepted, the procedure is such that the "cannot pay versus will not pay" issue would be dealt with before a judge of the District Court by way of an examination of means in a way that would ensure an element of fairness. Indeed, it was the lack of fairness that was the deciding factor in the judgment of Ms Justice Laffoy earlier this year.

I will not deal further with the issue. I ask the Minister of State, Deputy John Curran, if he has given any consideration to the issue since the matter was debated in the Seanad and voted upon. If his position remains the same, I will proceed to press the amendment because it goes to the heart of the legislation.

Seán Sherlock (Cork East, Labour)
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This was fully addressed in the Seanad. My party would agree with the principle of attachment of earnings being added to this legislation for obvious reasons. It would provide a way towards off-setting the risk against imprisonment. It would set in place a clearly defined procedure within the legislation on which there could be no doubt afterwards. On that basis, we would support the principle of attachment of earnings as used in maintenance orders, which could be extended here. It would address the Laffoy judgment also.

John Curran (Dublin Mid West, Fianna Fail)
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As we have discussed, the Bill, as drafted, represents an interim response to the McCann judgment. The draft legislation replaces section 6 of the 1940 Act with a carefully balanced range of safeguards and protections designed to take account of all the principles raised in the High Court. The Bill should be seen in that light. It is only three weeks yesterday since the High Court delivered judgment in the case and the Government was keen to have a reliable interim solution as the Law Reform Commission's deliberations, while relatively well balanced, will take some time to come to fruition. We will be returning to this legislation in due course.

Specifically, the proposal to include a provision to attach earnings raised by Deputy Flanagan was debated extensively in the Seanad where I participated and listened with great care to the detail. To answer the Deputy directly, I have considered it. However, as this is an interim arrangement to deal with a specific issue that arose in the McCann judgment and given also that the Law Reform Commission will be reporting in due course, we will not proceed with the attachment at this point in time.

There are one or two other points I want to make, and I want to be specific and clear. The aim of the Bill is to ensure - this is a key point because sometimes outside of this Chamber there can be a little confusion - that people who cannot afford to pay will not be subject to imprisonment but those who can but who simply choose not to, will still face the possibility of prison. That is explicit in the new subsection (8)(a) to section 6 of the 1940 Act which states, "the failure to pay the sum in respect of which the debtor has made default is not due to his or her mere inability to pay but is due to his or her wilful refusal or culpable neglect". We make a very specific distinction in the legislation between the ability and inability to pay. The Minister indicated it is not the norm for people to be imprisoned and only a small number are imprisoned for refusing to pay. With regard to family law cases, which represent a sizeable proportion of these types of cases, attachment is a well-established practice and it may be possible to formulate another model along those lines. It is worth noting that approximately half those imprisoned at any given time are maintenance debtors in respect of whom the option of attachment is already available. Bearing in mind the proposals of the Law Reform Commission, we need to explore this further. I am not accepting the amendment but we are certainly open to a full review of the findings of the commission, which I understand will be available before the autumn.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I move amendment No. a1a:

In page 4, line 24, to delete "as soon as practicable" and substitute "within 8 hours".

I mentioned this on Second Stage and will not labour the point. I am concerned that the legislation stipulates that one be brought to court "as soon as practicable" after arrest. I understand this means as quickly as possible but this is often not the case because a person arrested on a Friday could have to wait until Monday for a hearing in the District Court. Would it be appropriate to have a special sitting within eight hours in such cases to ensure that nobody spends the night in prison for a civil offence? Such offences should be treated as a civil cases.

The amendment is to ensure that a person will not end up in a cell for longer than is reasonable given that the offence in question is indebtedness rather than a major crime. It is often the case that individuals are placed in cells because they are afraid to engage with the system or because they cannot afford legal advice. The top criminals in this country could get a solicitor to help them obtain bail much quicker than others could. I am not suggesting the latter should not be arrested but that they be brought before a District Court judge as quickly as possible. I suggest that this should occur within eight hours.

John Curran (Dublin Mid West, Fianna Fail)
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The section provides that a person arrested on foot of a bench warrant should be brought before a court "as soon as practicable". This is a standard provision and the Deputy will be aware that the Garda routinely brings people before the courts all around the country on foot of bench warrants. I am not aware of any undue delay in this regard. Where difficulties arise in this area, there are various complaint procedures available. I am not accepting the amendment.

Seán Sherlock (Cork East, Labour)
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I move amendment No. 1a:

In page 4, after line 47, to insert the following:

"(6) Without prejudice to section 15 of the Enforcement of Court Orders Act 1926, the debtor shall furnish such information (including information on oath and subject to cross examination) as may be directed by the court for the purposes of any application under this section.".

Section 15 of the 1926 Act allows the court to direct the debtor to furnish information to enable the court to make appropriate orders, bearing in mind his or her means. The amendment ensures that such powers are available in an application for imprisonment.

John Curran (Dublin Mid West, Fianna Fail)
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I understand the Deputy's concern. I have sought advice on this proposal and I am informed it is unnecessary. A District Court judge may hear the evidence on oath and the debtor is subject to cross-examination in the ordinary course of proceedings in the District Court. There is no necessity to provide for this directly and, accordingly, the amendment is being rejected.

Seán Sherlock (Cork East, Labour)
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I move amendment No. 2a:

In page 6, line 42, after "order" to insert the following:

", being the amount specified in that behalf in the order under subsection (7)(c) or (d)".

This amendment makes clear that the amount the debtor must pay to secure release under the section is only the amount specified in the District Court order. If it is not accepted, a question may arise as to whether the amount under subsection (10) is different from that under subsection (7).

John Curran (Dublin Mid West, Fianna Fail)
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I know where the Deputy is coming from because I dealt with this or a very similar amendment in the Seanad and sought advice thereon. I was told the amendment in the Seanad was unnecessary and that there is a preference in drafting for avoiding the making of unnecessary references because doing so adds to the already convoluted nature of legislation. Having examined the Deputy's amendment in some detail, I cannot accept it.

Seán Sherlock (Cork East, Labour)
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I move amendment No. 2b:

In page 6, between lines 51 and 52, to insert the following:

"(13) Any power to order imprisonment for debt under the Debtors (Ireland) Act 1872 shall not be exercised save in accordance with the conditions specified in this section.".

We have very good legal people in the Labour Party, as Members can imagine, and they are very good at looking at old statutes. The 1872 Act appears to provide for possible imprisonment for debt. To avoid a constitutional challenge to that Act, we wish to provide that the same conditions would apply to imprisonment under that Act.

John Curran (Dublin Mid West, Fianna Fail)
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I thank the Deputy for his suggestion in this regard. The 1872 Act did confer jurisdiction on the Circuit Court and High Court in debt matters in addition to the District Court. However, even by the time the 1926 Act was drafted, it was recognised that the District Court was the jurisdiction in which such matters were commonly dealt with. It constructed the legal framework that is used to this day and this was reinforced by the 1940 Act. Ms. Justice Laffoy refers to this in her judgment in page 6, where she states it is the latter, the District Court jurisdiction, that is more commonly exercised. Costs associated with the higher courts would leave a creditor potentially very exposed if he or she were to choose, for some perverse reason, to pursue a debtor there. It may be a matter that the Law Reform Commission will examine but it need not detain us today. I do not propose to accept the amendment.

Seán Sherlock (Cork East, Labour)
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Is the 1872 Act in use or has it been repealed?

John O'Donoghue (Kerry South, Ceann Comhairle)
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If the lawyers in the Labour Party say it is in use, it probably is.

John Curran (Dublin Mid West, Fianna Fail)
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It has not been repealed but it is not in use. The 1940 Act is in use.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I move amendment No. 3:

In page 8, before section 3, to insert the following new section:

"3.—The Enforcement of Court Orders Act 1926 is hereby amended by the insertion of the following section, after section 17:

"17A.—All instalment orders made under the aforementioned section must be served, personally, on the judgment debtor and must contain a notification of the consequences of failure to comply with such an order, including the possibility of imprisonment pursuant to section 6 of the Enforcement of Court Orders (Amendment) Act 1940, as amended by section 2 of the Enforcement of Court Orders (Amendment) Act 2009 and the District Court Rules applicable to such proceedings may make provision for same.".".

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I move amendment No. 4:

In page 8, before section 3, to insert the following new section:

"3.—(1) The Minister shall, by way of Ministerial Order within 6 months of the commencement of this Act, introduce a spent conviction regime applicable to persons with a conviction resulting from their inability to pay a debt.

(2) The order made under this section shall require the approval of both Houses of the Oireachtas.".

Tá sé i gceist agam é seo a tharraingt siar, ach sula dhéanfaidh mé é sin ba mhaith liom cúpla ceist a chur ar an Aire Stáit. I intend to withdraw this amendment but before I do so I want to ask the Minister of State some questions. The amendment was tabled inadvertently because it does not apply. Does the judge take into account previous instances of non-payment? Does he or she take into account the percentage being charged on the loan when making a determination on the scale of the debt and the way it should be repaid and whether it is appropriate?

John Curran (Dublin Mid West, Fianna Fail)
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I will do my best for the Deputy. I heard him say on Second Stage that he would withdraw the amendment and understood the reasons and I heard the Deputy's points. On the scale of the debt, if it is a legitimate debt it is fine. As to whether a person's past record is taken into account it is a question of how one looks at it. It is not taken into account in the manner in which the Deputy suggests. A person's means and ability are taken into account. The intention is not to imprison somebody who is unable to pay. The person's current means are taken into account not that he or she might have previously been in this situation.