Ivana Bacik (Independent)

I move amendment No. 1a:

In page 4, between lines 5 and 6, to insert the following:

"(e) and provide information in ordinary language to the debtor in order that the debtor may seek a variation of an existing instalment order at the hearing which he or she is required to attend, and

(f) and provide information also in ordinary language to the debtor of the consequences of not appearing at any future Committal hearing, and the possibilities of variation being granted at those hearings.".

Typographical errors are more likely when Bills are rushed. That is a lesson we can all learn. There were typos in my amendment that were spotted by the Bills Office, despite the enormous pressure the staff there are under. I am grateful to them that the version in front of us now is at least grammatically correct.

I am also grateful that the Minister of State indicated that Report Stage would be taken tomorrow. That was the first formal indication that Report Stage would not be taken today. I welcome that. It is important to all of us who are tabling amendments to improve the Bill. We want sufficient time to consider the amendments.

I say that as an introduction to this amendment which the Minister of State may consider overnight. I tabled it in light of the comments by Ms Justice Laffoy in page 16 of her judgment when she refers to the current procedure and states that if the debtor is seen as a user, there is nothing user-friendly about the procedure of the documentation used in the procedure for the enforcement of court orders. She then identifies specific defects in the procedure that could be remedied and this Bill is an attempt to do that.

I have tabled this amendment, however, in an attempt to improve the procedure while the more general criticisms I have of maintaining imprisonment as a sanction stand. If we are to introduce a Bill that contains the possibility of imprisonment for non-payment of debts, at least a better level of documentation should be provided. I am guided in this by FLAC's briefing paper on the Bill where it suggests that more information should be given to the debtor at an earlier stage than provided for in the Bill.

Section 2 inserts a new section 6 into the Enforcement of Court Orders Act 1940. The new section 6 would provide for a summons to be issued by a District Court clerk where a debtor who is liable to pay a debt has defaulted. That summons would contain details of the consequences of failure to comply with an instalment order, especially the possibility of imprisonment, under section 6(2)(b). Under section 6(2)(c) it would state the debtor may be arrested if he or she fails to appear before the District Court as directed, and under section 6(2)(d) the summons would be served on the debtor by personal service. We know the absence of requirement of personal service was one of the key defects identified by Ms Justice Laffoy.

FLAC has identified other defects that would persist even with the new section 6. It claims it would be helpful if section 6(2) included a clear statement that the debtor may seek a variation of an existing instalment order at the hearing he is required to attend. That is critical because, as FLAC has found, many debtors are not aware of the opportunity they would have at a hearing to vary an existing instalment order. Although this is the law at present, FLAC has pointed out that many debtors are unaware of this. As we know, fewer than 20% of debtors engage with the court at any stage during the enforcement process. It is of particular importance that they would be informed of the possibility of making a variation to the instalment order.

That is the first part of the amendment, to insert a new subsection to section 6(2) stating that the summons would provide to the debtor information in ordinary language in order that the debtor might seek a variation of an existing instalment order at the hearing he or she is required to attend. That is important because it is likely that debtors faced with a summons of this sort will take an ostrich-like approach and hope that if they bury their heads in the sand, it will go away. That approach is taken by many people to summonses for traffic offences and so on. They hope they will just go away and they certainly do not want to turn up in court, assuming in a fatalistic way that a certain procedure will run its course. If they are not informed of the possibility of varying instalments, there is no way they can know of the possibility of variation. There are many improvements that could be made to the procedure provided in section 6, including the possibility of variation at the hearing of the summons and later possibilities of variation, but there is not much point in making those improvements if debtors are unaware of them when they receive the summons. It is vital they would be given that information in the summons.

I have also suggested that when the summons is issued, the debtor should also be provided with information in ordinary language of the consequences of not appearing at any future hearing and the possibilities of variation being granted at those hearings. It is not enough to say at section 6(2)(b) that a debtor should be informed of consequences of failure to comply with an instalment order and the possibility of imprisonment, because that sounds as if a person may be imprisoned once he has defaulted. It does not give him the vital information that if he turns up in court, he may seek a variation and if he does not turn up, there is a greater likelihood, ultimately, of imprisonment. It is important the possibility of seeking a variation is emphasised at that early stage.

There is a provision later in section 6(5) that where a debtor is arrested and brought before a District Court, the judge shall explain to the debtor in ordinary language at that point about the entitlement to legal aid, that he must attend before the next hearing and the consequences. I am anticipating that the Minister of State will say we have already provided for a mechanism to give the debtor that information but we should think of the likely situations of those who will be brought before the court. Currently, if someone fails without reasonable excuse to appear before the court in answer to the summons, the creditor can apply to the judge and the judge may issue a warrant for the arrest of the debtor in the absence of the debtor and before the debtor has been informed in ordinary language under the procedure set out in section 6(5).

FLAC has identified a flaw in the procedure in that the debtor may be arrested still under the new proposed section 6 without having been informed of the possibility that he may seek a variation and of the precise consequences of failure to appear at hearings. The information provided for in section 6(2) in the summons is inadequate to give the debtor a full picture of the likely process he faces, especially the room he has to seek a variation of the instalment order, a critical factor for someone with a fatalistic acceptance of the consequences of inability to pay and consequent imprisonment. It is important there is some light at the end of the tunnel.

The issue of a warrant for the arrest of the debtor or, alternatively, the fixing of a new date for the hearing requires a hearing in open court and FLAC has suggested this is a problem for many debtors because it happens in the local District Court. The warrant is issued for the arrest and will be enforced by the Garda. That carries with it serious punitive connotations for an individual who in all likelihood has never been in trouble with the law but now faces an arrest warrant without having received all the information he should have been given.

I did not table an amendment on this but it occurs to me that there is a second gap where information should be provided but there is no provision for it. Under section 6(3), the judge can decide that instead of issuing a warrant, he or she will give the debtor another chance and fix a new date for the hearing at which the debtor will be required to attend and direct that he or she be notified of that date. To make this workable and give the debtor a fair chance of being aware of the full process, notification should also include within it information about the consequences of failure to comply with an order or attend the court. In addition, the debtor should be informed of the possibility of seeking a variation of the instalment order. If, as FLAC has said, it is vital that debtors are given as much information as possible as early as possible in the process, any notification of a new hearing date should also include information for the debtor about the process itself and the consequences of failure to comply.

As I said, many of the improvements will be empty unless debtors are made aware of them and of the possibility of their being able to influence the proceedings by convincing the judge to vary the instalment order. Of course, debtors also need to know what sanctions are ultimately likely to be imposed. I would be grateful if the Minister would consider some amendment to ensure a greater level of notification as early as possible in the process and, in particular, before any arrest warrants have been issued. Arrest warrants bring people into a different cycle of the process and will be viewed by anyone subject to arrest as bringing them into a criminal process, even if there are safeguards in place for the subsequent process. They are being brought to court subject to an arrest warrant and that is something we should seek to prevent at all costs. We should try to prevent the issuing of an arrest warrant by ensuring that people get as much information as possible in that early summons and therefore are encouraged to attend court. We would be providing a carrot as well as a stick. That is why it is so important they are informed of the possibility of variation.