Seanad debates

Wednesday, 8 July 2009

Enforcement of Court Orders (Amendment) Bill 2009: Report and Final Stages

 

3:00 pm

Photo of Dermot AhernDermot Ahern (Louth, Fianna Fail)

Did I say "debtor"? I meant to say "creditor". The 1940 Act is an old Act but we have put in a range of balanced safeguards and protections. We took into account what Senators said yesterday. We consulted the Attorney General on the safeguards and we are satisfied those built into the Bill are correct. We have gone further in the legislation in that no debtor can be imprisoned until the court has heard from him or her. If he or she refuses to attend, he or she obviously can be held in contempt under section 12. I understand from my officials that no Senator disagreed with the fact that this is a necessary provision. The High Court also stated that it was necessary that the debtor be apprised by the judge of his or her entitlement to legal representation. This is fully accounted for in the point.

Ms Justice Laffoy's final point was that the court "applies fair procedures in the hearings of the creditor's application, and does not make an order for arrest or imprisonment, unless it is satisfied that the failure to pay is due to wilful refusal or culpable neglect." This is extensively addressed in the Bill which provides that the debtor must be informed in the summons, which will be personally served if possible. We are again nodding in the direction of an amendment by Senator White on the consequences of that process. The debtor must be brought before the court to be further informed by the judge of his or her rights, including legal aid and the possible consequences. The Bill goes further still, by listing a range of options that are open to the judge, including the making of a variation order, requiring the parties to participate in mediation.

The money advice and budgeting service was referred to in the House. In my time as Minister for Social, Community and Family Affairs between 1997 and 2000, I was very instrumental in building up that service to what it is today. When I started in public life, the ESB used to switch people off. That does not happen anymore because MABS is there for everyone, and it is an excellent service.

I accept what Senator Bacik said about the lady in question. The couple in my case own the house, and judgment mortgages do not apply to people in local authority houses. I appreciate that there are people who do not have the resources and perhaps do not have the legal advice. Perhaps they have a health issue which may prevent them from getting that advice. My experience has been that the courts have erred very much on the side of caution in this respect.

We have addressed an urgent need that was identified by the High Court decision. It does not deal ultimately with the overall process, which may very well be radically overhauled by the Law Reform Commission when it comes to give a view on this. I would recognise that the Government would be more than willing to do away with or change the existing system if that is what was recommended. We should give a chance to the Law Reform Commission to bring forward its recommendations. Approximately half of those imprisoned at any given time are maintenance debtors where there is already an option of attachment. It seems this is not the complete panacea to all the ills associated with the issue.

I thank Senator Regan for tabling this amendment and for highlighting the necessity to have an attachment of earnings, but I suggest we leave it until the Law Reform Commission has reported.

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