Alex White (Labour)

I support amendment No. 1. I am interested in the Minister's response, especially in respect of the points made regarding the implications of the Laffoy judgment. I agree with Senator Bacik that it seems to be a mandatory requirement to satisfy the proportionality test invoked in that case and upon which the judgment was partly based. I had hoped to have an opportunity to look again at the judgment, but the Minister will appreciate there was insufficient time to do so given that we had to deal earlier today with another of his July statutes. My reading of it is that the proportionality test is as mandatory a requirement as the obligation to distinguish between an inability to pay and a wilful refusal to pay. That distinction is well made in the Bill, which we have welcomed. That having being done on the basis of the tests outlined in the Laffoy judgment, it is equally a requirement that the law should provide for an attachment procedure in circumstances where the absence of such a procedure runs the serious risk of rendering that part of the law unconstitutional.

Even aside from the question of constitutionality, the Minister would probably agree that an attachment procedure has inherent value in itself. If I understood him correctly, the Minister of State, Deputy Curran, indicated yesterday that whereas there would be a large measure of support on the Government side for the inclusion of an attachment procedure, he was of the view that it would be more appropriate for that to be considered at a later stage when the Law Reform Commission has reported on this general area. Even if the Minister does not accept there is a constitutional difficulty, it makes sense in any event to include an attachment procedure in this measure. We are all agreed that everything possible must be done to ensure debts are paid, short of the ultimate sanction of imprisonment. That is one of the contexts in which this Bill has been brought forward, a point made strongly by the Minister of State yesterday when he argued that imprisonment should be avoided if at all possible. One of the measures that will help to avoid the use of this ultimate sanction is the inclusion of an attachment of earnings procedure for persons facing difficulty in repaying debts. It has inherent value if there is not a constitutional question mark over it.

In terms of the broader objective of the legislation, an attachment order also has value to a creditor. Creditors who are owed money will probably be more impressed by the possibility or likelihood of being paid the money owed than the prospect of the debtor being sent to prison. All creditors, whether large or small, want to be paid rather than see someone led off in chains, as it were. Attachment to earnings orders appear, therefore, to have an inherent value as a public policy instrument and to the individual creditor whose rights we are also interested in protecting.

The case that there is a constitutional question mark over the legislation appears to be unanswerable, although I await the Minister's response in this regard. Given that the Minister has chosen not to appeal the Laffoy judgment in relation to the matter of ability to pay versus refusal to pay, I do not understand the reason he is not following the decision, which he has no choice but to accept, in respect of the absence of an attachment of earnings procedure and the effect it has on the rights of the people involved. On that basis, I strongly support the amendment and look forward to the Minister's response.