Alex White (Labour)

The High Court judgment that has led to the necessity to amend this legislation is most welcome. I do not share the view expressed by colleagues that it was a decision the State ought to have considered appealing. I cannot understand the basis on which the State would consider appealing this judgment. When one reads the judgment, one is almost inclined to ask how the law could have been stated like that. How could a debtor be imprisoned without any positive requirement that the District Court would first have to decide whether the non-payment was due to an inability to pay or a refusal to pay? It seems to be a fundamental point. It is not an area of the law with which any of us was familiar until it came out in this judgment. I cannot understand how it could possibly be the law or how it could be justified as the law.

It also seems basic to many people that fair procedures should be available for a hearing dealing with the possible imprisonment of a debtor before the courts. How could it possibly have been the law that such decisions were made in circumstances where there was no real opportunity for the debtor to be heard and for fair procedures to be applied to the hearing of his or her case? There is a number of other basic points in the judgment that were of fundamental importance to people's rights. It seems to be entirely wrong for the State not to accept the ruling that has been made. I am glad that the Government has proceeded to amend the legislation and to deal with the strictures of the decision of Judge Laffoy in that case.

While I accept the necessity for the Oireachtas to address the implications of this judgment, no satisfactory explanation has been given as to why it must be dealt with in one day. It is something of a spectacle for us to be considering a Bill such as this over a few hours. Let us consider the work by bodies such as FLAC and the expertise that such bodies can make available. We do not have to agree with everything they say, but they can open our eyes to aspects of the issue that did not immediately strike us. FLAC published a report on indebtedness and quickly put together a briefing for our assistance in this debate so it is easy to see that it has a great level of expertise. To respond to FLAC's detailed analysis by dealing with this Bill in a couple of hours is simply unacceptable. It offends not only FLAC, as that is only one body, but also democratic accountability. As Senator Regan said on the Order of Business, conducting the debate in this way on such an important issue is just one more nail in the coffin of the Seanad as a forum for parliamentary scrutiny. I appeal to the Leader at this late stage to consider not proceeding with Committee Stage.

Senator Bacik has seen some of the very genuine proposals brought forward by the outside organisations that I mentioned, yet we have to scramble amendments together within a few minutes and go back and forth to the Bills Office. We will sit next week so why can we not have Committee Stage then? This decision was made in the High Court on 19 June so one more week will not cause the sky to fall in.

Senators Regan and Bacik spoke about the need for us to have a more wide-ranging debate. It may be that these amendments cannot await the wider debate on the use of imprisonment in the enforcement of debts. I am not as persuaded as Senator Walsh and others by the statistics that we have been given on the District Court. The Minister of State told us in his speech that there were approximately 4,300 applications for enforcement to the District Court in the first six months of the year and that in the same period, 186 people were imprisoned, less than 5% of the total, and that the average imprisonment period is 20 days. The clear conclusion was that this proves that the threat of imprisonment is a deterrent for all those other people who then paid up. I do not accept that this constitutes full proof of the point. It bears further scrutiny and I am glad the Law Reform Commission will look at it. If somebody who has not paid a debt is threatened with imprisonment and subsequently pays the debt, that may strongly suggest to the Minister of State and others that the existence of the threat was the reason they paid. Frankly, I do not believe it follows that it was the reason they paid. It is worth scrutinising further. It takes time to complete the process of making enforcement orders, entering judgments and going through the enforcement procedure. During that period, people can realise the seriousness of the situation they are in and take steps to discharge their debts. I do not think the existence of the threat constitutes the high and unanswerable level of proof that is being argued for. It is not necessarily the only reason a person might decide to pay a debt.

I agree with other Senators that there is considerable scope for us to consider non-custodial approaches to the enforcement of debts. Regardless of whether we are a far more sophisticated society than we were in 1940 - I might have to think again about that one in light of some of the things we now know - it is certain that more sophisticated means of ensuring debts can be discharged are available to us nowadays. The State obviously has an interest in ensuring people who are owed money ultimately get paid. As Senator Regan has pointed out, a developed system of attachment of earnings has evolved over recent times. I know it is difficult in some cases. People who work in family law know that attachment of earnings is not always available because of the income situation of some people, including the self-employed. It is not always the answer.

Senator Bacik mentioned other forms of sanction, such as community service orders. We need to consider other means of putting pressure on people who owe money to pay up. It is a little crude for us to continue to rely on what Senator O'Donovan has referred to as the "whip hand". I understand what he means. We should not rely on the old-fashioned threat of sending people to the slammer if they do not pay up. It seems to be a little unsophisticated. It certainly bears further scrutiny and examination. I have always been deeply uncomfortable with the notion that the sanction of prison should be used as a means of enforcing a debt. I accept that the Minister of State has said it is intended that this sanction should be used as a last resort. I agree with Senator O'Donovan that District Court judges, most of whom are extremely humane, will always try to avoid sending people to prison. While it is important that our judges are compassionate, I do not think the law should rely on the compassion of judges. The law should be clear. It should be possible for people to ascertain what it means, to have a stake in it and to support it. We should not simply leave it to the discretion of District Court judges, who may or may not be compassionate in particular circumstances. To send people to prison for not paying their debts offends against many people's sense of what it right, fair and appropriate.

While I welcome many of the changes that are proposed in the legislation, I lament the fact they do not go far enough. They deal with just one aspect of the problem. We need to remind ourselves that vulnerable citizens are involved in many, if not most, of these cases. We saw that in the McCann case. Some people have serious difficulties with basic interaction with the courts. I accept that has been addressed to some extent in this Bill. Clearer information should be given to people about the extent to which they are exposed when their cases are heard before the courts. I welcome the important development in this legislation, whereby the right to legal aid is clarified.

I do not know why Senator Walsh always feels tempted to start a discussion on tribunals. I do not think many of those who have appeared before the tribunals have availed of legal aid. The Senator always takes a cut at the Bar when he gets a chance. I assure him that many barristers work for an awful lot less than the amount to which he constantly refers in the context of the tribunals. Many barristers and solicitors who do good work under the legal aid scheme are not paid anything like the sort of figures conjured up by Senator Walsh from time to time.