Denis O'Donovan (Fianna Fail)

I welcome the Minister of State to the House for the debate on this Bill. The purpose of the Bill is to resolve the need for legislation arising from a judgment of the High Court on 18 June in the McCann case, which found that section 6 of the Enforcement of Court Orders Act 1940 is incompatible with the Constitution on a number of grounds. I am somewhat surprised that this judgment was not appealed to the Supreme Court, but that is a personal view. The grounds were primarily that the debtor was not required to be present in court, no provision was made for legal aid to an indigent debtor at risk of imprisonment and the reversal of the burden of proof meant that the debtor might be imprisoned simply because he or she could not prove that his or her failure to pay was not the result of willful default.

It would be great if this process of incarcerating people for non-payment of money, particularly small sums of money, could be eliminated in our civil and criminal justice system, but I am not sure whether that will ever come about. I am interested in a comment made by the Minister during his opening statement:

In the first six months of this year the Courts Service estimated that there were approximately 4,300 applications to the District Court for enforcement orders. In the same period 186 people, less than 5% of the total, were imprisoned. The average imprisonment period is 20 days.

I accept the total number of people who are imprisoned is a small percentage, but it is still too high.

Is a pattern emerging in the various District Court areas, of which there are 21 in the Republic, and, if so, how many orders were granted? The Minister probably does not have the answer to this, but we will deal with the issue again later. I would like to obtain a breakdown by District Court area. In my experience as a practising solicitor, I came across judges in various jurisdictions who had different views on these issues. Most of the judges I dealt with were careful and cautious in granting committal orders for non-payment of debts. However, they could also be compassionate. Normally, in such procedures, one is served first with an order asking one to provide a statement of means. For many of those who provide a statement of means in which it is clear they cannot pay or can pay very little, the judge can be understanding. I have often heard District Court judges say in open court, to their credit, that they will not send somebody to prison for non-payment where it is clear the debtor cannot pay.

In contrast, there are people out there who wilfully refuse to pay. I heard recently, although not in my capacity as a lawyer or a Senator, about an argument between a couple who had separated in which the man, who was relatively wealthy, said the woman would get a penny from him only over his dead body. There are people who have such a stern attitude. In such circumstances, where people have the wherewithal to pay whether in the case of maintenance orders or otherwise but do not pay because of a personal grudge between debtor and creditor, the threat of imprisonment must be retained in our justice system.

However, I compliment the Minister and his officials on their attempts in this legislation to strengthen the position of debtors. The provisions of this Bill will replace section 6 and amend section 8 of the Enforcement of Court Orders Act 1940. Section 2(1) substitutes an amended section for section 6 of the 1940 Act which itself replaced section 18 of the Enforcement of Court Orders Act 1926. Subsection (1) sets out the circumstances in which a creditor may apply for a summons under this section, that is, where a debtor has failed to comply with an instalment order made by a court under section 17 of the 1926 Act. We must always bear in mind that an instalment order will have been served before an application for a summons can be made. In my experience, judges will invariably adjourn proceedings for up to eight weeks to allow the debtor to come before the court. In this respect, the committal system has not been abused.

Subsection (2) specifies the details that must be contained in a summons. Subsection (3) provides that where a debtor fails to appear on foot of a summons, a judge may issue a bench warrant or adjourn the hearing. This will serve to strengthen the hand of the unfortunate debtor. As another speaker observed, there are already undoubtedly many such persons - and may be many more in the coming months and years - who will face court proceedings. The issuing of a bench warrant will ensure the debtor is brought before the court. We must take into account the human circumstances of these cases. I have met people, for example, who are under pressure to continue making maintenance payments to a separated partner. There are other people with severe social problems who move from one rented accommodation to another or are forced to move in with parents or a sibling. It is important that the court and the judge are satisfied that the debtor knows what is going on. A District Court judge will not readily issue a bench warrant unless he or she considers it necessary.

Subsection (4) provides that a debtor arrested under subsection (3) shall be brought before a court as soon as possible. I suggest that, as far as practicable, this should happen within 72 hours. It is unfair for such persons to be detained for an unreasonable period. This is a matter of particular concern in rural areas where District Court sittings may take place as infrequently as once every two months.

Subsection (5) provides that where a debtor is arrested and brought before the court under the bench warrant issued under subsection (3), that a date shall then be fixed for a hearing. The subsection specifies that the judge shall make clear to the debtor his or her entitlement to apply for legal aid, the consequences, including imprisonment, of failing to comply with the instalment and that he or she must attend for the hearing on the date specified. This addresses the weakness in the existing legislation. The Bill, whether rushed or not, must be complimented in this regard. It reflects the spirit of Ms Justice Laffoy's judgment that no person should be imprisoned willy-nilly and without account being taken of proper procedure.

Subsection (7) sets out the options open to the court if it is satisfied that the debtor has not complied with an instalment order. I am aware of cases where a statement of means has been filed and it is obvious the debtor is out of work and cannot meet his or her maintenance payments, credit union loan repayments or whatever. Judges sometimes adjourn such cases for six or even 12 months to allow time for the debtor to improve his or her circumstances. A particularly important provision in this legislation is the entitlement to free legal aid. I am not sure what the financial implications of this will be for the Department of Finance. I understand there are currently some 9,000 applications per year. However, sin scéal eile. The important consideration is to ensure people are not unjustly imprisoned. Subsection (8) sets out the standard and onus of proof and the criteria that must be applied by the judge before making an order of imprisonment. This is another important arrow in the bow of District Court judges in ensuring there is a proper burden of proof in such cases.

Subsection (9) provides that a debtor who is the subject of a postponed imprisonment order and whose circumstances have changed may apply to re-enter the matter. This too provides an important safeguard for debtors in response to the appropriate and valid judgment of the High Court. Subsection (10) makes the same provision as subsection (9) for a debtor who is imprisoned and also provides that he or she may be released immediately on payment of the debt plus costs. This is another positive aspect of the legislation.

I will conclude with some general points. It should be made compulsory through legislation, apart from District Court rules, that a debtor should file a statement of means at whatever stage. It is important to note that the committal of a debtor to prison does not result in an extinction of the debt. In other words, having served seven, 14, 21 or 28 days a prison, a debtor will emerge to face the same debt. Therefore, neither side gains from the imprisonment. I ask the Minister to consider specifying a minimum threshold of debt below which a person cannot be imprisoned in any circumstances. It is unacceptable for a person owing as little as €100, €200 or €500 to be committed to prison for seven or 14 days, with the attendant costs to the State. I understand this issue is being examined by the Law Reform Commission.

Imprisonment for debt makes little sense from any perspective and the consequences for the person concerned are severe. The imprisoned debtor will clearly be unable to secure any earnings while in detention, thus making him or her less likely to be in a position to make repayment. For the person committed to prison there is an enormous stigma to endure. I have spoken to a person who was refused a visa to visit the United States because the Garda PULSE system had recorded his committal for seven days for non-payment of debt. This person had only served one day of that sentence before repaying the debt. Being imprisoned even for seven days on a minor financial matter, with the subsequent criminal record, has huge implications for an individual.

I concur with colleagues that Committee and Report Stages should be staggered over this week and next. However, those who are bound must obey, and I do not intend to disobey the Whip. By and large, the Bill represents a positive response to Ms Justice Laffoy's decision. As such, it accords with our role as legislators.