Ivana Bacik (Independent)

I am grateful for the opportunity to speak again on this point because it is very important. Senators Regan and Alex White referred specifically to the passage in Ms Justice Laffoy's judgment which they say mandates the adoption of some form of attachment of earnings order. I took the opportunity to read again the relevant passages in the judgment. It is very clear that their analysis is correct. At the bottom of page 80 of Ms Justice Laffoy's judgment she examines the question of whether section 6 breaches the guarantee of personal liberty in the Constitution in Article 40.4. She says the core question is whether section 6 constitutes a disproportionate interference with the right to liberty. That is straightforward. She says one answers the question by applying the well established proportionality test first enunciated by Mr. Justice Costello in Heaney v. Ireland in 1994. She quotes Mr. Justice Costello's statement that the means chosen must pass a proportionality test. They must be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations. In dealing with that she says it is reasonable and legitimate to have an effective statutory screening for enforcement of contractual obligations, including the payment of debt.

It is the second means, as Senator Alex White said, that is so important. Ms Justice Laffoy outlines that the means chosen must also impair the right to liberty as little as possible. She goes on to say that unless the means chosen fulfil the proportionality test for the enforcement of contractual obligations such as debt they would be in breach of the Constitution. On page 82 she goes on to say that the application of elements of the proportionality test to section 6 illustrates that it is a disproportionate interference with the constitutionally protected right to liberty for two reasons, (a) and (b). As Senator Alex White outlined, (a) is the reason that is targeted in the legislation. The Minister of State addressed that point. Ms Justice Laffoy states that the judge must be able to ascertain whether the debtor is in fact unable to discharge arrears and that without safeguards to ensure debtors are not imprisoned simply because they are unable to pay arrears, the procedure is arbitrarily unfair, not based on rational considerations and is an unreasonable and unnecessary interference with the debtor's right to personal liberty. It is paragraph (a) on page 82 of the judgment which this legislation seeks to address, a point with which we do not disagree. However, as Senator Regan rightly pointed out, it is in respect of paragraph (b) that this legislation does not meet Ms Justice Laffoy's clearly stated finding, namely, that section 6 as currently drafted disproportionately interferes with the right to liberty because where the debtor has some resources to meet the debt, a statutory scheme which does not require the creditor to seek redress by attachment of those resources does not impair the debtor's right to liberty as little as possible.

As Senator Alex White stated, the wording is a little unclear. However, when one reads the judgment a number of times in the context of the judgment of Mr. Justice Costello in the Heaney case, it is clear that what Ms Justice Laffoy is saying is that one cannot breach a person's right to liberty without first exploring whether he or she has the resources to meet the debt through the putting in place of a scheme to ensure the resources can be attached. Otherwise, one is breaching the persons right to liberty much more than the minimal allowed under the Constitution. In other words, there is no procedure in the pre-existing section 6 or in the Minister of State's draft of the new section 6 for checking before one moves to imprison the debtor whether he or she has the resources to meet the debt and whether they can be attached. That is the key problem with the current legislation.

Senator Regan's amendment seeks to address this by instituting another level of safeguard. This safeguard is not in substitution for but in addition to the safeguards already in the Bill. Ms Justice Laffoy's judgment clearly states that this is another way in which the current section 6 infringes the Constitution. It is disproportionate because it does not allow for the attachment of resources where a debtor has resources to meet the debt. We need to put in place a statutory scheme which requires the creditor to seek redress by first attaching those resources before encroaching upon a person's right to liberty. I apologise if I am labouring the point but it is a point that can perhaps be missed on first reading Ms Justice Laffoy's judgment. I had to read it a number of times. I believe the interpretation Senators Regan and White have given is correct, namely, unless there is in place a statutory scheme to ensure debtors with resources can have those resources attached to pay their debts, the debtors' rights will be breached. In other words, one is not breaching their right to liberty in a proportionate manner, rather it is disproportionate. I hope that is somewhat clear. I apologise for having gone over it for a number of times. This is about proportionality. To put it bluntly, one can imprison a person but only if one does so in a proportionate manner. If one imprisons a person without first checking if he or she has resources that can be attached, then it is disproportionate to imprison him or her in the first instance. I do not believe I can put the point any more clearly than that. I await the Minister of State's response.