Niall Ó Donnghaile (Sinn Fein) | Oireachtas source

Cuirim fáilte roimh an Aire Stáit. Tá mé sásta go bhfuil an deis agam cúpla focal a rá ar an Bhille seo inniu. Like Fianna Fáil, Sinn Féin will not be opposing the passage of the Bill on Second Stage. However, there are several points which I wish to put to the Minister of State and which it is important to put on the record of the House. The Bill provides for matters relating to mortgage repossession proceedings and related court matters.My understanding is that it requires judges to have regard to the overall proportionality of repossession and the family situation of someone who may be facing repossession and the loss of a home.

I will focus on section 3 given that it is the meat and drink of the Bill. Subsection (1) broadens the protections of the borrower, if the borrower has previously engaged the services of a personal insolvency practitioner, PIP, to assist in the resolution of his or her mortgage arrears problem or the borrower has participated in good faith in a scheme designed to enable indebted borrowers to remain in their principal private residences. This is welcome given that good faith is generally a ground on which banks contest. I know anecdotally of cases where the banks have said they have engaged with the borrower. They outlined completely unrealistic deals to ensure payment and then stated that the borrower had failed to engage as he or she could not meet the demands of the institution. It is somewhat disingenuous in the first instance and ignores the principle of good faith.

Subsection (2) provides that when considering whether to make or refuse to make an order for possession in repossession proceedings, a court must take account of the matters referred to in subsection (3), some of which are of particular note, namely, whether the order is proportionate, if the borrower has children, and the conduct of the parties in any attempt to find a resolution to the borrower's mortgage arrears difficulties. These are all welcome measures and it is also welcome that the State seems to be, albeit late in the day, giving weight to cases where minors, in particular, are involved. I am sure all of us hope this will go some way to prevent a further increase in the number of children who are currently homeless in the State, which is 4,000.

We must bear in mind that while this Bill represents progress, the other policies of the Government are still causing misery and adding to the housing arrears crisis. The vulture culture it is fully behind is causing huge stress and concern. What is it about helping the banks solve their problems and to hell with the affected families' problems? The UN is condemning the policy, and rightly so.

I hope the no-consent no-sale Sinn Féin Bill to empower borrowers comes in and makes a difference, despite the scaremongering. We must also express frustration at the Central Bank decision and Government acquiescence to amend the code of conduct on mortgage arrears. This was a key commitment of the programme for Government that has been broken, and broken brazenly. Where are the special courts that the programme for Government also promised?

I wish to put on record reservations and draw attention to subsection (3)(f), which the explanatory memorandum tells us means that the court may take account of a lender's refusal or reluctance to engage in attempts to find a resolution of the arrears issue and of a borrower's refusal to engage in meaningful engagement with the lender to find such a resolution. There is a danger here that we will be introducing a double edge, where for the first time, as far as I am aware, the behaviour of a borrower can be held against him or her. The problem is that there be may be many reasons a borrower will not engage, including pure fear or lack of capacity to face a bank on an equal footing. This subsection needs close scrutiny and possible amendment. Who decides, for example, what "meaningful engagement" is?

Subsection (6) deals with personal insolvency agreements. Subsection (7) deals with the ability of the Minister to establish a scheme to assist the borrower who is at risk of losing his or her home. The objective of such a scheme, as stated in the explanatory memorandum, must be to provide those borrowers with arrears difficulties in respect of their principal private residence with assistance that is reasonably likely to enable them to address these difficulties and facilitate, as far as possible, him or her remaining in his or her principal private residence. Potentially, it is an interesting proposal which may be of benefit to the borrower. I will reserve judgment on this, however, until further details are provided and perhaps the Minister of State could touch on that in his concluding remarks.

More broadly, I wish to echo some of the sentiment expressed by my party previously, in stating that I am appalled at the changes to the legal aid rules brought in at the end of January. These create a further inequality in representation between the banks and vulture funds on one hand, and the person applying for insolvency on the other. Until now, if one was applying for personal insolvency or appealing the refusal of the banks to grant one, then one could avail of the advice of a solicitor and a barrister. As of 31 January, the Government has removed the right to a barrister for the debtor in court, other than in exceptional circumstances. It has also halved the fees for solicitors and personal insolvency practitioners. This will make it much easier for banks and vulture funds to repossess homes. I fear that people will be left completely to the wolves. Bear in mind that they will be taking on banks which will have the very best legal representation available and will be dealing with complex legislation. This is, to all intents and purposes, an attempt to disarm the debtor who may be fighting possession. A very significant proportion of appeals against a refusal by the bank to engage in the insolvency process are successful. If the banks are facing strong legal opposition, they may then agree to engage in the first instance. If, however, the banks are facing much more limited resources, with the bank potentially having senior and junior counsel and the debtor not having any barrister, what then is the incentive for banks to engage? The Government appears to be driven to undermining the protections which the mortgage holders have and to assisting the banks and vulture funds. That is shameful, is mór mo náire air.

This Bill is being framed as an attempt to rectify the very serious imbalance that exists, and despite being welcome, does not do enough when contrasted with such decisions as I outlined above. The Government is essentially giving crumbs to the homeowner on the one hand and giving banks and vultures a feast with the other.

I wish to conclude by briefly commenting on the role of the Garda, and the perception of it assisting unregulated bailiffs in making repossessions on behalf of the lender. I understand that this issue is still outstanding, with private security firms remaining unregulated as of today. I know the Minister has committed to looking at the regulation of such firms but nothing has emerged since that announcement. My colleague, Deputy Ó Laoghaire, published the Regulation of Private Security Firms Bill in January, and has placed it on the Order Paper. I ask the Minister to look at this Bill, consider advancing it, or a similar piece of important and crucial legislation, as a matter of urgency.