Ivana Bacik (Independent)

I thank Senator Quinn for sharing time with me. While I welcome the debate on this legislation, I concur with the criticisms expressed by Senators Regan, Quinn and O'Donovan regarding the brief time provided to debate this important Bill. It is a terrible shame that the House is rushing through all Stages in one day, given the significant impact the Bill will have on many people.

I have called many times for a debate on prison policy and noted also that far too many people are being locked up in prison for minor offences. This legislation relates to persons who are being locked up despite not being convicted of offences under the criminal justice system. As Senator Quinn pointed out, 272 people were imprisoned last year for civil debts, that is, non-payment of debt. He also helpfully added that Ireland's approach to this issue has been criticised at international level.

I am concerned that the Minister of State's figures show that in the first six months of this year alone, 186 people were imprisoned for an average period of 20 days for non-payment of debts. Three weeks is sufficient time for a person to lose his or her job. Further, the person's children could be sent into care and mortgage and other debts will mount up during the incarceration period. As other speakers noted, matters can only get worse in the current circumstances as more and more people find themselves unable to pay their debts and ultimately face the threat of imprisonment, even with the undoubted improvements offered by the Bill.

I am grateful to the free legal advice centres for their briefing and the report, To No One's Credit, published this week on recommendations for change. As FLAC pointed out, while the Bill contains welcome changes necessitated by the McCann judgment, it does not go far enough in that it still contemplates imprisonment as a sanction for debtors. Although it will improve the current position, it is akin to placing a sticking plaster to an open wound, namely, our shameful policy of continuing to imprison people because they cannot or do not pay their debts.

FLAC, in its comprehensive report, suggests that we move towards the removal of imprisonment as an option in debt cases and instead employ effective non-penal remedies to enforce compliance with civil debt judgments. Senator Regan and FLAC proposed that attachment of earnings legislation be considered as an alternative solution. Other methods, including sanctions available on the criminal side, such as community service orders, could also be employed. There is no reason imprisonment must be used as a sanction in these cases.

Many of us are uncomfortable about moving those who owe civil debts into the criminal system. While we all accept that sanctions must be available, it is the nature of the sanctions that must be examined. The sanction of imprisonment is, as I have outlined, counterproductive because people who are imprisoned can no longer earn money to repay debts they may owe and their position is likely to worsen while they are in prison. They may, for instance, lose whatever employment they have or their children may be taken into care.

It is extraordinary that the comprehensive reform of the debt repayments system promised by the Minister has not been undertaken in the 69 years since the passing of the Enforcement of Court Orders Act in 1940. This was at the start of the Second World War. It is also extraordinary that the House will rush through criminal justice legislation in a matter of hours when it has taken us nearly seven decades to come to some overall reform of the system.

I welcome the fact that the Law Reform Commission is working on this issue and will produce a consultation paper on debt enforcement. We know much of what will be in that paper and, from the work done by FLAC, we know much of what is happening. As I indicated, more than 200 people were imprisoned last year, a figure that appears likely to double this year given that 186 people have already been imprisoned for an average of three weeks in the first six months of 2009. We are aware of the problems that exist and that the system is not working. We should, therefore, seek to improve the system and move away from criminalisation.

The Bill includes many welcome measures. Unfortunately, while it appears it will at least reduce the likelihood of imprisonment of a debtor in his or her absence, figures on the problem are lacking. The Courts Service estimates that only one in five debtors takes part in debt enforcement proceedings. I have been present in District Courts where committal orders were made in the absence of the debtor. While this may not occur as a matter of routine, under current circumstances judges regard this course of action as the only option available to them. The figure I provided is an estimate from the Courts Service. FLAC has pointed out the need for statistics to be gathered on the number of committal orders granted, and on the percentage of debtors who attend, fail to attend or have legal representation. We simply do not have those data, but we can certainly estimate that a small number of debtors are currently involved in the courts process. To have debtors criminalised in their absence is, as the High Court has found, a serious flaw in the current system. It is welcome that measures will now be put in place to ensure it is more likely that debtors will appear in court.

I have tabled an amendment suggesting that the court summons should include information in ordinary language for debtors explaining that they may a seek a variation of an existing instalment order at the hearing they are required to attend. It should also provide information, in ordinary language, of the consequences of not appearing at any future committal hearing and the possibility of variations being granted at those hearings. The amendment is based on a wording that FLAC has proposed and deals with the serious problem where debtors are not appearing in court. It is to ensure relevant information is provided to them at the earliest stage. I am conscious that in subsection (5) the Bill provides that the information will be given by the judge where the debtor is arrested and brought before the District Court, but that is too late. According to FLAC, that information should be provided then, but should also have been provided at an earlier stage. I urge the Minister of State to consider accepting something like the amendment I have proposed. Its wording may not be the most elegant, but something to the same effect should be accepted to ensure the debtor is provided at an early stage with information as to the consequences of a failure to appear at that early stage, and the possibility of seeking variations. It appears to FLAC, and it is clear from the evidence we have, that people are simply not clear as to what procedure is being instituted when a committal summons is made. I would like the Minister of State to deal with that amendment in his response.

We need to move away from criminalisation. I am slightly concerned at the altering of the onus of proof. It is certainly welcome to see that the creditor must now establish the reason for the debtor's failure to pay instalments - that it must not have been due to wilful refusal or culpable neglect. That is welcome but I am slightly concerned about the insertion of a criminal standard of proof. We should instead be moving away from the criminalisation of this area rather than towards it. On Committee Stage I will also address the amendment we have just seen concerning a new section 9, which provides that a Minister may consult a judge. I have some concern about the appropriateness - indeed, the constitutionality - of that procedure given that the judicial function is spent, in a criminal sense, once sentence is passed. I accept that is not quite the case here, however. FLAC has suggested that if we are to criminalise in this way, at the very least debtors should have some possibility of remission on a sentence. There are a number of issues that need to be dealt with, but the better approach would be to move away from the criminalisation that essentially is still at the heart of this Bill. That is why I will be opposing the Bill.