Seanad debates

Friday, 17 July 2015

Civil Debt (Procedures) Bill 2015: Second Stage

 

10:30 am

Photo of Jillian van TurnhoutJillian van Turnhout (Independent) | Oireachtas source

I welcome the Minister of State, Deputy Ó Ríordáin, to the House. I apologise that I was not here when the Minister, Deputy Fitzgerald, was giving her overview of the legislation. I was attending a meeting of the Joint Committee on Health and Children which was engaging with the Child and Family Agency.

While I appreciate the desire to have certain legislation passed through the Houses before the summer recess, it should not be at the expense of the democratic process. The Minister of State is aware, as are my Seanad colleagues, that our agenda has gone from meagre at various stages over recent months with thinly veiled time-fillers to the scenario we have now where there is insufficient time to scrutinise this Bill properly and fulfil our legislative duty.

I was unable to follow the Bill’s conclusion in the Dáil yesterday afternoon due to a meeting of the Joint Committee on Health and Children, legislative briefings and various meetings throughout the day. There was not even an updated version of the Bill until this morning. It was not available when I was putting my thoughts together on the Bill. Only for a briefing yesterday afternoon by departmental officials, which was extremely helpful, I would not have known or been able to welcome that the Bill has been amended to repeal the relevant provisions of the Enforcement of Court Orders Acts 1926 to 2009, which was preventing the Bill from truly abolishing the imprisonment mechanism for non-payment of civil debts. I really welcome that.

I strongly support extending the recognised principle of detention as a last resort for children to adults, with an urgency for the 18 to 24-year old cohort. I accept imprisonment is unavoidable in certain circumstances, particularly in the case of violent offences but our rates of committal to prison under sentence and the increasing number of committals for less than three and six-month periods means that Ireland has one of the most punitive criminal justice systems in Europe.

The statistics for imprisonment for non-payment of debt are interesting. According the Irish Prison Service annual report, 23 debtors were subject to a period of custodial sanction in 2014. This compared with 8,979 committals for non-payment of court ordered fines, the vast majority of which were for periods of less than three months, but none the less at significant cost to the State.

When will the Fines (Payment and Recovery) Act 2014 be commenced? While not completely removing the possibility of imprisonment for non-payment, the Act provides much-needed alternatives such as the payment of fines by instalment, by attachment and recovery orders if appropriate, and by the substitution of community service orders for the fines. It is simply absurd that five years after the Fines Act 2010 introduced a payment by instalment mechanism, the Courts Service is still unable to progress the facility and there are nearly 9,000 committals a year as a result.

I have a number of concerns about this Bill, which echo many of the same concerns flagged by FLAC in its submission. I had a chance to discuss some with the departmental officials at yesterday’s briefing. I have some concerns over the assessment of ability to pay. Why is there no statutorily enshrined guidance for the District Court in determining a debtor’s ability to pay his or her debt or the amount to be attached or deducted over a given period?

There will undoubtedly be unequal assessment depending on the court. This already happens with family law maintenance where orders can vary extensively depending on the court in question. There is a need for guidelines. The guidelines exist, as the guidelines on reasonable standard of living, reasonable living expenses for debtors. The Bill would be greatly strengthened by specific reference to the “reasonable living expenses” guidelines that the Insolvency Service of Ireland and the official assignee in bankruptcy must consider in accordance with section 23 of the Personal Insolvency Act 2012 to ensure a debtor’s income does not fall below an acceptable minimum standard.

The guidelines have their base in objective, academic work, principally of Dr. Micheál Collins at Trinity College working with the Vincentian Partnership for Social Justice which in turn used a well-established model developed by Loughborough University in the UK. They are used for debts big and small in the insolvency service including assessments for debt relief notices where the maximum reference debt is €20,000 but can be much smaller. If it is good enough for insolvency and bankruptcy deliberations, why is it not good enough in the context of civil debt?

I cannot but wonder if the reason it is not included in the Bill is that many, if not all, social welfare recipients subject to its assessment would fail to reach the threshold. The truth is that this Bill, while necessary and welcome in many ways, has a special interest in ensuring that outstanding water bills can be collected from the “refuse to pay category” in receipt of social welfare.

Is the point of social welfare not to provide the minimum of what people who are not in employment need to survive? How then can any deduction, even as low as the €1 and €5 per week as mooted in the briefing we had, not cause additional hardship to those already experiencing poverty? It is an apparent contradiction in that there is no provision for the deduction of fines from social welfare payments under the Fines (Payment and Recovery) Act 2014 and no plans to introduce such arrangements.

I am really concerned that the civil debt proceedings will be taking place in open court. At least with family law maintenance hearings only the parties to the case will hear all of the details of income and expenses. The civil debt situation is in open court. Anybody who has attended the District Court will know it is often very full. In the court the debtor must file details of their finances or face prosecution and the creditor can question the debtor in open court. If the reasonable living expenses guidelines I have suggested were used, then a debtor’s affairs would only be opened up for the general public in cases where the expenses were above what was considered reasonable. The expenses would be the same throughout all the courts of the land.

I have concerns over employment protection issues. There is no protection in the Bill for a debtor, against whom there is an attachment of earnings order, from adverse or unfair treatment by his or her employer. This is different from a maintenance attachment in a family law context or dispute. I am concerned that an employer might infer that the employee is untrustworthy or unreliable.

FLAC has recommended that we amend the Unfair Dismissals Acts 1977 to 1993 to specifically prohibit dismissal on the grounds of being subject to an attachment of earnings order. Why does the Bill allow an attachment order to be obtained and notified to a person’s employer without any prior steps being taken to recover the debt? Surely an attachment of earnings order should only follow the debtor’s failure to meet the terms of an instalment order and where the varying of an instalment order downwards has been considered.

Those are my specific comments. I am raising them today rather than waiting for Committee Stage, given the fast pace at which the Bill will move through the House. I support the general principle and aim of the Bill. I have tried to outline where we could strengthen it to protect those who need to be protected.

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