Catherine Martin (Dublin Rathdown, Green Party)
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In light of the recent High Court judgment delivered by Mr. Justice Barrett in AIB v. Counihan on 21 December 2016 as well as in the light of the serious concerns expressed recently by the Master of the High Court, what assurances can the Minister for Justice and Equality give to families facing the repossession of their homes that she has done all in her power to protect them properly? Can she assure people unambiguously that all persons with decision-making responsibility of such magnitude are fully informed of the very latest legal developments and properly trained in respect of their legal obligations under EU law? Will she assure the many hard-pressed borrowers who are often referred to as the forgotten, the so-called squeezed middle who never got any bailout, that the terms of the directive on unfair terms in consumer contracts will be applied in repossession proceedings for family homes in every appropriate case? In light of the expressed concerns of the Master of the High Court, Mr. Edmund Honohan, about what is reportedly and unlawfully happening, will the Minister consider taking appropriate steps to place a moratorium on all such proceedings until she is satisfied that EU law is being applied consistently throughout the State?

Is the Minister confident that all county registrars have the necessary legal training to apply EU law in home repossession cases? The Court of Justice of the European Union has held that where a consumer contract comes before a court, the court must satisfy itself that none of its terms is unfair, even when the consumer has not called upon it to do so. As a mortgage contract is a consumer contract where the property is a home, it is vital that county registrars, who in reality deal with the majority of repossession applications, are fully aware of the implications of these decisions. The Master of the High Court is of the opinion, however, that county registrars should not be dealing with these repossession cases at all. There is a real and justifiable concern that many repossession orders granted in the Circuit Court may be open to challenge as EU law was not applied. In such a scenario and leaving aside the lenders, it is the State that could conceivably be found liable. There is a potential financial risk for the State. Considering the inequality of arms between the thousands of ordinary, hard-working and decent borrowers on one side and lenders on the other side with bottomless funds, will the Minister assure families that the full range of protections available to persons are being implemented?

When homeowners are summonsed to appear before the courts, however reluctant or daunting that may be, they must at the very least be assured that decision-makers are fully resourced, updated and upskilled in all aspects of protections, including the very latest, available to those facing home repossession. For the administration of justice to operate most effectively in our country, it must enjoy the complete confidence of all the people. It is of concern that the Master of the High Court does not have that confidence.

Dara Murphy (Cork North Central, Fine Gael)
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On behalf of the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, I thank the Deputy for raising this matter. The Tánaiste appreciates her interest in these current developments and is aware of the High Court decision referred to. She wishes to reassure the Deputy that this is being examined by the Department and the matter will be kept under review in terms of any definitive additional obligations which may arise and in terms of how the Department and the House may deal with them.

I reiterate the programme for Government commitment to keep families in their homes and to avoid repossessions in so far as possible. In October 2016, the Government launched the new national mortgage arrears resolution service, Abhaile. I note that further aspects of the handling of repossession cases in the courts are being considered under the programme for Government. Subject only to the Constitution and the law, the courts are independent in the exercise of their judicial functions and in the management and conduct of the cases which come before them, and the Tánaiste has no role in that regard.

County registrars are officers of the court and independent also in the exercise of their functions and duties under statute and the rules of court and, as a matter of law, may only make orders for possession of any land in cases where no defence to an action for possession has been delivered by the defendant or, indeed, no appearance has been entered by the defendant. Therefore, the power of a county registrar to make possession orders is extremely limited. Where any defence is raised by the defendant, including any defence relating to the nature or terms of the mortgage contract between the borrower and the lender, the matter must be transferred by the county registrar to the judge's list at the first opportunity once it is in order for hearing. At that point, it is a matter for the judge to consider any issues raised, including, if applicable, issues relating to the European Union directive on unfair terms in consumer contracts, which was given effect in Ireland by regulations made in 1995, as amended in 2000 and 2013.

In addition, all orders of a county registrar are then subject to appeal to the Circuit Court. The directive and regulations relating to it are a matter for the Minister for Jobs, Enterprise and Innovation, but it is understood the Competition and Consumer Protection Commission has a supervisory power to ensure that there is compliance with the legislation.

The raising of this issue in regard to matters for consideration by the court in a possession case underlines the critical importance of people who are in mortgage arrears and have been issued with legal proceedings engaging with lenders and court processes, and the entering of a defence for the consideration of the court where they feel they have such a defence.

Catherine Martin (Dublin Rathdown, Green Party)
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I am glad to hear that this matter is under consideration, but justice delayed is justice denied. In some cases, delays are fatally dangerous because it is already too late and the clock can never be put back. For many others, time is of the essence.

I have asked a specific question, namely, whether the Government is satisfied that family homeowners who are doing their utmost to simply survive from day-to-day and week-to-week and are now facing a legal process and the prospect of potentially losing their homes will be given as much protection as is feasibly possible. If the answer is "Yes", can the Minister of State explain how he came to that conclusion?

The master of the High Court has expressed his concern that the Government is failing to properly protect people facing home repossessions, claiming that current procedures do not ensure EU consumer legislation is being applied. At least one county registrar has stopped processing such cases. Is the master, Mr. Honohan, right or wrong? The Green Party and many others believe the Government needs to address his genuine and serious concerns.

County registrars are effectively agents of the European Union. There is an obligation on them to examine contracts to determine whether they are fair. Does the Minister of State agree with the master of the High Court that the rules and procedures of these courts need to be updated to facilitate a hearing in every single repossession case with regard to EU legislation and unfair contract terms?

The law provides that a term which allows the commercial party to unilaterally change the contract is defined as unfair. What about the banks that arbitrarily increased interest rates, beggaring those with variable rate mortgages? What about those who were falsely sold interest-only mortgages and then had their loans switched to capital and interest loans just as the recession began to bite?

The Government should introduce a moratorium on all home repossessions until assurances can be given that adequate resources are in place to fulfil the legal obligations under EU law and legal clarity is restored in order that the Government can give assurances to all home owners facing home repossessions that the full range of protections available to them are being applied.

Dara Murphy (Cork North Central, Fine Gael)
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To be absolutely clear, we are discussing this in the light of a High Court decision of 21 December 2016. I wish to restate that the Tánaiste and the Department of Justice and Equality are aware of this decision and it is being examined by the Department. As I have said, the Government is making every effort and fully understands the difficulties families face with respect to trying to avoid repossession of their homes.

As I have explained and as we are all aware, the courts are independent in the exercise of their judicial functions and in the management and conduct of cases which come before them, as are county registrars. The power of a county registrar in making possession orders is, as I have said, extremely limited. It is, of course, up to a judge to consider all issues raised, including, as the Deputy said and if applicable, issues in regard to the European Union directive on unfair terms in consumer contracts.

The fundamental point is that the court case of 21 December is being reviewed by the Department, which is the first week that business has resumed in the Dáil. I have no doubt that, as the Deputy said, there will be a further update in the very near future with respect to development in the case.