James Browne (Wexford, Fianna Fail) | Oireachtas source

Section 16 of the Bill introduces the option for a debtor to make a confirmation of truth as an alternative to a statutory declaration when solemnly confirming his or her complete and detailed financial situation in an application for a personal insolvency arrangement, debt settlement arrangement or a debt relief notice. This confirmation of truth under the Bill is very similar to the statement of truth recently introduced by the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 as an alternative to making an affidavit or a statutory declaration within court proceedings.

Section 16 is a modernising provision of the Bill that has been widely welcomed. It is particularly important in the context of the Covid-19 pandemic. Stakeholders have reported that the current formal requirements in relation to making a statutory declaration before a commissioner of oaths can cause delay and difficulty. This particularly impacts an insolvent person who has limited mobility due to age or ill health or who is in a region subject to Covid-19 public health restrictions. Stakeholders particularly asked for an alternative, less formal option along the lines of a statement of truth. However, the concern is that the effect of the Senator's amendment would be to limit the use of that modernising provision to cases where the insolvent person has total debts of less than €1 million. In any other case, the debtor would still have to make a statutory declaration. The Minister considers that it would be unwise and unsatisfactory to introduce a distinction of this sort. First, there is no need for such a distinction; a confirmation of truth does not need to be formally declared before a commissioner for oaths but it remains a solemn statement. Under section 16(3) of the Bill, making a confirmation of truth without an honest belief in it is a criminal offence, and penalties for a serious case include a fine not exceeding €100,000 or imprisonment for a term up to five years, or both. There is no need, therefore, to oblige an insolvent debtor to make a statutory declaration rather than a confirmation of truth.

Second, the Senator is proposing to introduce a distinction between insolvent persons with a total debt above €1 million and with a total debt below it. That seems somewhat arbitrary to the Minister. Merely having a significant level of debt does not suggest the person is necessarily dishonest. The last financial and property crisis saw many ordinary homeowners who ran into financial difficulties due to unemployment, ill health or separation confronted with sizeable debts due to mortgage arrears and accumulated interest over several years on quite standard homes that had been bought at boom-time property values. Third, the Senator's proposal would require having two different documentation regimes based on this somewhat arbitrary distinction. We do not see any need for this and it will only complicate the work of personal insolvency practitioners, the insolvency service and the courts. Accordingly and unfortunately, the Minister must oppose this amendment.