Wednesday, 26 February 2014
Fines (Payment and Recovery) Bill 2013: Second Stage
The Minister of State, Deputy Tom Hayes, is very welcome back to the House of which he was a Member some time ago. On a previous occasion I referred to the fact that he had been demoted to the other House.
I welcome the Minister’s moves to help to ensure that fewer people are jailed for non-payment of fines. It has been interesting listening to the speakers who recognise the aim, objective and, I hope, the success of the Bill. We have an antiquated system and I am pleased the Minister is doing something about it. A measure such as allowing people to pay fines in instalments is a very sensible move. However, I have some questions and concerns on the Bill that I would like to raise.
The first is the right to enter a person’s property and to remove items. I have major concerns about section 8 which deals with “the appointment of receivers and the making of recovery orders to recover unpaid fines, including by the seizure and sale of property belonging to the fined person”. In particular, section 8(3) sets out the powers of the receiver on the seizure, holding and disposal of the property of a person in respect of whom a recovery order is made by the court, that is, for the non-payment of a fine. The receiver has the power to enter a premises, including a dwelling - alone or accompanied by a member of the Garda - and to demand, and take possession of the property of the fine payer. I am very concerned by this part of the Bill.
First, it has the potential to worsen how our fines system operates as it increases fear. We could have the situation where persons have no income, cannot pay the fine and the next thing they know is that they have a stranger, with a legal right, entering their property demanding and indeed taking away something that could be precious to them. It will be an offence to stop such a person from taking away one’s property. That is extraordinary and must at the very least be contrary to a person's basic human rights. At worst, it may be unconstitutional, in particular in terms of Article 40 of the Constitution. Article 40(5) of the Constitution reads: “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” Section 6(2) of the Criminal Law Act 1996 allows entry and search of any premises, including dwellings, for the Garda to make an arrest in certain circumstances in relation to a very specific criminal matter. Non-payment of a fine does not have any relation whatever to those clauses. By enacting the legislation as it stands, it is eroding the power of the Garda as it is giving other persons more power to enter property which is something that is also of concern. The provision should be re-examined.
The Seanad must stand up against such a proposal. It is not correct to give such massive powers to act against someone for the very small offence of non-payment of a fine. This part of the Bill should be significantly changed, or if that is not possible, then it should be deleted in its entirety. I urge the Minister to consider the matter again. In this country, it is quite difficult for a member of the Garda to enter a person's property and a warrant is usually required. The Bill changes the situation and means that a receiver now has the right to violate the dwelling of a citizen for what could be a comparatively trivial matter. I am sure those who fought for the foundation of the State would be wholly opposed to such a move. For that and many other reasons, I object to the provision in the Bill. I do not think anyone should be allowed to enter premises without a member of the Garda and to seize property. That is unprecedented. It is worse than being in a police state – it is the privatisation of police powers legalised by the Government. I would like my concerns to be addressed. I call on other Senators to examine that part of the Bill extremely closely.
Another concern relates to the extensive new obligations on employers. I also have major concerns about sections 14, 15 and 16 which deal with deducting earnings from a person. I have some concern with the State directly interfering in a person’s personal finances. However, it has done that already through measures such as the pension levy. My real concern in this area is that the court may make an order directing the person’s employer to deduct the fine from the person’s earnings and to pay the sums deducted in the manner specified in the order. That is a private matter and I do not agree that a person’s employer should become yet another party in the matter of a fine.
We are working hard to encourage employers to take on more people and to encourage business start-ups. Every little step we take that makes it more difficult for an employer makes it less likely that the employer will take on more people. Britain had a rule that if a new law was introduced an old law had to be removed. That rule has now been changed whereby for each new law that is introduced, two laws, which are usually out of date, must be removed. Every time we introduce something extra, particularly if it hinders or stifles the ability of an employer to take on more people, we have to question whether it is necessary or if there is an alternative that we can avoid. Certainly, this is one other obstacle to an employer creating more jobs.
I welcome the whole tenor of the Bill. I know the effort that has gone into it. It has a very worthy objective and a worthy motive but it can be improved and I would like to see that improvement take place on Committee Stage.