Seanad debates

Tuesday, 7 July 2009

Enforcement of Court Orders (Amendment) Bill 2009: Committee Stage

 

12:00 pm

Photo of Alex WhiteAlex White (Labour)

I reiterate the startling point made by Senator Regan. It is not a point that can simply be grouped with all the other various points made on this side of the House and set aside by the Minister of State on the basis that this would be dealt with more comprehensively in subsequent legislation. I will only make this point because very often when we make five, six or seven points, the one point gets missed. I respectfully say to the Minister of State that Senator Regan's point absolutely requires clarity as to what the Attorney General is saying regarding this legislation purportedly dealing with the McCann case. The Bill definitely addresses the issue in the McCann case to do with distinguishing between ability to pay and mere refusal to pay. That is the biggest issue in the McCann judgment and I accept that it is addressed in the Bill.

However, the judge grouped her reasons for finding that there was a disproportionate interference with the constitutionally protected right to liberty into two sections, A and B, as Senator Regan has said. Under group A she deals with the question of the ability to pay versus wilful refusal, which I accept the Bill addresses. Under group B, outlining why the old section was a disproportionate interference with the constitutionally protected right to liberty, she stated: "In circumstances where a debtor has some resources to meet a 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." In other words "as little as it should", which would be a happier way of stating that.

It is quite clear that whereas the Bill as drafted addresses the core of the Laffoy judgment, it does not address the aspect that relates to the judge pointing to a disproportionate interference with constitutionally protected right to liberty for the debtor in circumstances where there is not a basis for attaching the resources of somebody who has resources, in other words, a debtor who has resources. A scheme needs to be put in place to provide for the attaching of such resources to right the situation. The Minister of State is not doing that in this Bill. There is a gap in this respect. I ask him to deal directly with this unanswerable point that has been made in respect of what the Laffoy judgment means. It is not being addressed in this legislation.

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