Eugene Regan (Fine Gael)

The legislation does not remedy the issues raised by Ms Justice Laffoy in her judgment. I will read what I consider to be, perhaps, the most relevant part in relation to this very issue of liberty and imprisonment. It is at page 82 of the judgment:

The application of elements of the test to section 6 illustrates that it is disproportionate interference with the constitutionally protected right to liberty for the following reasons:

(a) The objective of imprisoning a debtor for failure to comply with an instalment order is to procure the discharge of arrears of instalments. A statutory procedure under which a debtor, unable to discharge the arrears, is imprisoned because of the absence therein of procedures (including procedures which give effect to the debtor's right to fair procedures under the Constitution, which ensures that the judge ascertains that the debtor is unable to discharge the arrears), cannot be said to be rationally connected with the objective. Such a procedure is arbitrary, unfair and not based on rational considerations. It is an unreasonable and unnecessary interference with the debtor's right to personal liberty [That, to a certain extent, has been remedied in the Bill].

(b) In circumstances where a debtor has some resources to meet the debt, a statutory scheme which does not require the creditor to seek redress by attaching those resources does not impair the debtor's right to liberty as little as possible.

That is proportionality, namely, interfering with the right to liberty as little as possible. The judge is saying expressly in the judgment that not providing for a statutory scheme which does not require the creditor to seek redress by attaching those resources is a disproportionate interference. It is similarly the case with the failure to impose on the creditor pursuing an application for an order for arrest and imprisonment the obligation to go through an Order 46B-type process, including personal services, etc. However, it is a fundamental point where the legislation is being rushed and therefore does not deal with one of the crucial findings of the judgment that it runs the risk of being struck down again by the High Court on constitutional grounds for the very reason that it does not provide for the type of provisions included in the amendment we have tabled.

On that issue of proportionality, the new section 6(7) as inserted by section 2 of the Bill provides for the remedying all of the procedural issues concerning proper notice for a debtor and so on, with the court being able to assess the means of the person. It provides under section 6(7) that on hearing the creditor and such evidence, "if any, as they may respectively adduce, a judge may, if he or she is satisfied that the debtor has failed to comply with the instalment order ... treat the proceeding on the summons as an application under section 5 for a variation of the instalment order. Section 6(7)(b) provides for resolution by mediation and section 6(7)(c) provides for imprisonment, albeit with a stay of three months. Section 6(7)(d) provides for arrest and imprisonment. What is missing, and what the High Court judge expressly laid out in her judgement, is the requirement to ensure the proportionality of the interference with the individual's right to liberty, namely, the attachment of earnings procedure.

The Minister of State has said it would be administratively difficult or impractical at this point to provide for such a procedure. However, in the next breath he said this procedure is well established in the family law area. I do not see the administrative difficulty of including this provision in this Bill which I believe is necessitated by the judgment of the High Court.

Again, on the figures referred to by the Minister of State in his opening statement of 4,300 applications for enforcement orders to the District Court and 186 people imprisoned so far this year as against 276 for the whole of last year and 201 the year before, the trend is rising as indicated by the significant increase signalled by the figure of 186 for the first half of this year. In the current economic circumstances, it is self-evident this situation is going to get worse if the procedures to provide for the imprisonment of people who do not pay their debts, which procedures are continued in this Bill, are not amended. The numbers will escalate with more people being imprisoned.

The reality, however, is that the prisons are full. I understand it costs almost €2,000 a week to keep one prisoner in jail. In 2008 the average civil debtor spent 21 days in prison at a cost of €6,000 to the State. On release the debtor still owes his or her debt. In some cases the cost to the State of imprisonment far outweighs the debt owed in the first place. There is chronic overcrowding, with 3,853 in custody compared with a bed capacity of 3,642, which represents an occupancy level of 106% according to Government figures. The overcrowding in our prisons creates all sorts of problems. I do not understand why the Minister is not more accommodating when a procedure is proposed and where the High Court has highlighted the problems that exist in this type of draconian measure, which is disproportionate to the "offence". The Government, particularly the Minister for Justice, Equality and Law Reform, are set against accommodating any new ideas that could improve this situation. It is very regrettable.

There is a necessity for the Minister to rethink this. There is a legal and constitutional obligation on him. This is the same Minister who insists on having a blasphemy offence because it is required by the Constitution. Here, a High Court judge, in a judgment which is not being appealed, has set out in express terms the constitutional problems with the existing legislation. One of those problems, attachment of resources, which is the language used in the judgment, is not being addressed in the Bill. Yet the Minister is not prepared to countenance any amendment to that legislation. It is most regrettable and unacceptable.