Ivana Bacik (Independent)

I second the amendment. We debated this issue at length on Second Stage, and I spoke in support of it. Having read Ms Justice Laffoy's judgment several times, especially the relevant passage at pages 81 to 82, it is clear she is of the opinion that the proportionality test in Heaney v. Ireland can only be fulfilled where there is provision for some type of attachment of earnings procedure. She points out that to be proportionate, any legislative scheme allowing for a person's imprisonment must impair his or her constitutional right to liberty to the least possible extent. She further states that where a debtor has some resources, some means of paying the debt, but there is no provision in legislation for a scheme of attachment of earnings, the system proceeding directly to imprisonment, then the debt enforcement system is disproportionate because it does not ensure the constitutional right to liberty is impaired as little as possible.

Ms Justice Laffoy describes it as disproportionate and in breach of the constitutional right to liberty to lock up a person for non-payment without first checking whether there is some mechanism for attaching their earnings and income. That halfway house measure must be possible to satisfy the constitutional test of proportionality. This is the only possible interpretation in reading the Laffoy judgment. I do not see how else one can fulfil the Heaney test of proportionality. As we all acknowledged yesterday, the Bill provides for very welcome improvements in the current regime for enforcement of debts and will certainly make it less likely that debtors will be imprisoned. However, a careful reading of the judgment in the McCann case points to the requirement that as well as providing safeguards to ensure people are imprisoned less easily for non-payment of debts, a halfway house scheme must also be introduced whereby some attachment of earnings mechanism may be used by a judge before proceeding to the last resort of imprisonment. If the system does not allow for that halfway house, it allows for the imprisonment of people in a way that is disproportionate and which impairs the constitutional right to liberty.

Senator Regan has expressed this well in amendment No. 1. It is a complex and detailed provision which refers to the need to ensure there are protected earnings rates and protected welfare rates for attachment of earnings and welfare orders. This is something to which Ms Justice Laffoy referred, namely, the need to safeguard a minimum standard of living for the debtor. All these safeguards are included, but the key principle the amendment seeks to address is that without some type of attachment of earnings scheme, the legislation will be regarded as disproportionate and may, therefore, be found unconstitutional in the way the regime provided for in the 1940 Act was found constitutional in the Caroline McCann case.

The Minister of State, Deputy Curran, indicated yesterday that in the first six months of this year, 186 people have already been imprisoned for non-payment of debts. We should also be mindful of the human stories of those imprisoned. I related some of the pertinent background information about Caroline McCann yesterday who owed money to the credit union, as referred to in the Laffoy judgment. As I said, she is a single, unemployed mother of two who left school at age 14, lives in social housing and has a history of alcohol abuse and psychiatric illness. That is the reality for many debtors who face court proceedings. It may not have benefited Caroline McCann but some type of attachment of earnings regime should be inserted in the legislation to ensure there is a halfway house safeguard so that a judge does not proceed straight to imprisonment when confronted with a debtor who has not made repayment.