Enforcement of Court Orders (Amendment) Bill 2009 - Report and Final Stages - 8th July 2009

Enforcement of Court Orders (Amendment) Bill 2009 - Report and Final Stages - 8th July 2009.
Senator David Norris: I welcome the opportunity to contribute to the debate on this legislation, on which I also contributed on Second Stage. I mention in the presence of the senior Minister that the legislation appears principally to be a response to the McCann judgment. I recognise also that Ms Justice Laffoy issued a very good judgment in the case. I wish to put at the centre of this debate the human experience of the debtor. The Minister should note that many Senators greatly appreciate the work of the Northside Community Law Centre, without which the McCann case may not have reached a satisfactory conclusion.
While I compliment the Minister on having responded to the McCann case, as I stated on Second Stage, he has responded to half of the problem rather than the full problem. This may well be the reason my colleague, Senator Walsh, asked Senators to wait for the report of the Law Reform Commission. Different Governments have frequently asked us to wait for this or that report to be published. Unfortunately, I have always found this approach to be rather haphazard.
Senator Regan's amendment is considered and detailed but also clear and efficient. It is interesting to note that it is almost exactly the same length as the Bill, which tells us something about the degree of concern and interest the Senator has devoted to the matter. I am fully in favour of the idea of attachment and urge the Minister, even at this late stage, to take the matter on board.
The whole point of the McCann judgment was to avoid circumstances in which citizens are sent to jail. The amendment appears to be another mechanism, in this case an efficient one, to ensure that with regard to debt, a citizen is not needlessly sent to jail for a non-violent crime which, while possibly aggravating and financially dangerous for the other side, is not a crime of violence. Why should the taxpayer have to pay to keep people in jail over debts, some of which are for small sums? The attachment of earnings procedure appears to be an efficient method to address this matter and it is one of which I approve.
The reason I commented on the length of the amendment and compared it with the length of the Bill was that any difficulties or concerns I had appear to have been met by Senator Regan. For example, I was concerned that a circumstance could arise in which a person's income was attached to such an extent that he or she would experience difficulty in meeting the requirements of life, including the education of his or her children and so forth. I note, however, that section 8(4)(b) of the amendment requires that the protected earnings rate must be specified so that the court will determine a level of income below which, as a result of the attachment order, the person in question should not have to pay.
I like the idea of consent in subsection (5) which states:
The particular of an attachment to earnings order may be agreed on consent by the debtor and the creditor in advance the hearing of an application under this section and may be ruled on by the Court as an order under this section.
The phraseology "in advance the hearing" sounds a bit odd. Presumably it means "in advance of". Perhaps the Minister can advise as to whether a preposition was left out or if this is legal language. If it is, it is a bit odd considering that the Minister has committed himself to using ordinary language. There may well be a simple explanation and I see that the Minister's advisor is smiling.

Deputy Dermot Ahern: We did not draft it.

Senator David Norris: The Minister did not draft it. It was Senator Regan, the fausseur. Is the Minister disposed to accept this amendment? It is so good, I assumed it came from the Minister. However, I think the preposition has been left out. It looks to me almost like a conciliation process - the kind of thing that sometimes happens on the way into court when parties agree and no blood need actually be shed. I commend this amendment which is good and well thought out. The defence that the Government has offered for its apparent reluctance to accept it, seems principally to be that the Law Reform Commission may look at this in the future.
I think we are taking amendments Nos. 1, 2, 4 and 6 together. Amendment No. 4 seems to be reasonable on the part of Senator Regan. It would be almost like a biblical parable if, for example, A was in debt to B, and C was in debt to A, and C was paying money to A, but A was refusing to pass it on to B. It would be aggravating for poor B to watch money flowing into the pockets of somebody who had already borrowed money from them. The amendment therefore seems to be perfectly reasonable. There is no reason why an ancillary debt of that nature should be protected.
Amendment No. 6 proposes to insert a new section 17A as follows:
All instalment orders made under the aforementioned section must be served, personally, on the judgment debtor and must contain a notification of the consequences of failure to comply with such an order...
It is a good legal principle that people must get direct and proper notification which must be served appropriately. I am very much in favour of this amendment. On Second Stage, I said the Minister was going excellently half the way, but Senator Regan has provided another 40% or 50%. I hope therefore that the Minister will consider these amendments positively.

Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): I thank Senators for acknowledging that we have put significant checks and balances in the Bill concerning the implications of the Laffoy judgment. In my 21 years as a practising solicitor, from 1976 to 1997, I had some practical experience of the use of instalment orders, garnishee orders and judgment mortgages, to try to use every trick in the legal book to get money or, as they say, blood out of a stone. It is a frustrating experience for somebody who is owed a debt to get money from people who wilfully refuse, even though they have the resources. When one gets the instalment order, people often say they will pay a fiver a month, that the person owed will never get the ultimate amount and that it will be made a painstaking experience. It is a frustrating experience for those who are owed money. It needs reform which is one of the reasons the Law Reform Commission was requested to review this matter.
I do not accept what Senator Norris says about the Government's attitude being haphazard. It is anything but haphazard in that we are taking a long-term look at it and are consulting with various people. The commission has already done some work, but will do a consultation process in September and will ultimately report on a complete reform of this area. I would welcome that. If we were to accept Senator Regan's amendment, we could be rightly accused of second guessing what the Law Reform Commission will ultimately report. It is important therefore to allow that consultation process to go ahead.
I have sympathy with the concept of attachment, which works pretty well with maintenance orders. It must be said, however, that 50% of those who end up in prison do so as a result of non-payment of maintenance orders, so the attachment was no good in those circumstances. There is a multiplicity of ways in which people can recover a debt. I am digressing a bit in telling the story of a case I took great pride in when I was a practising solicitor many years ago. It concerned an elderly couple who were badly assaulted by their next door neighbour in a row over a fence. The gardaí would not get involved, even though an assault took place, because it was one person's word against another. There was no criminal prosecution so we took a civil prosecution. This couple had been badly beaten. In the man's case we got £5,000 and £2,500 for the woman, which was a huge amount of money 20 years ago. We tried to go through the courts with instalment orders which we obtained, but it comes back to the central point. In my experience, and I think it would be the experience of most legal practitioners, the courts err on behalf of giving people their freedom. It is only when the creditor has gone to the nth degree that the debtor ends up in prison. In my recollection very few people were put in prison in my area during my time practising law. To come back to the story, I tried to get the money for these nice people who were from Canada but living locally in Dundalk at the time. We went though all these instalment proceedings but, of course, the fellow never paid. We probably did get a committal order against him but I do not think it was enforced. I took a personal interest in the case because I felt the man who assaulted the couple should not be let off. I therefore registered the judgment as a judgment mortgage against the assaulter's property. We left it there and did not apply for an order for sale, as one is entitled to do under a judgment mortgage. I thought no more about it and the people never got paid. Then about 15 years later I got a call from a local solicitor who was in the process of selling a house and was literally closing the deal that day. He did what are called the searches and, lo and behold, he came across this judgment mortgage which was registered against the property, as well as another mortgage with the building society. He could make neither head nor tail of this mortgage, but it transpired it was the mortgage I had registered on behalf of the people concerned. He obviously could not sell the house that particular day therefore. I then had to try to locate the people who had returned to Canada after the assault, without having received their money. Eventually we tracked them down and I was delighted to be able to tell them that they were going to get £7,500 plus interest at 11% for about 15 years. It was a lovely little box for them subsequently. I am digressing, but the story illustrates the difficulty a debtor must go through to get satisfaction.

Senator David Norris: It is a very good story, but I think it was the creditor.

Deputy Dermot Ahern: 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.


Senator David Norris: I add my voice to that of Senator Bacik. I compliment her on getting this amendment passed. On behalf of the House, I thank the Minister for showing this degree of flexibility. It is a very important point, which a number of us made on Second Stage. Senator Bacik put the amendment down, argued very clearly for it and, obviously, impressed the Minister and his advisers. It strengthens the Bill, democratises it and allows the debtor to fully participate in the process in a way which can only be positive for the whole outcome.
Senator Bacik emphasised many of the legal and human aspects, but I would like to emphasise the ordinary language aspect. That is terribly important because it is by virtue of the ordinary language that this information becomes accessible, and it is usable only when it is accessible. If it is wrapped in legal jargon one can print it on note paper, send it through the letter box or read it out to the people, but it will not make the slightest difference. It must be accessible and that permits the citizen to exercise his or her rights.
I endorse what Senator Bacik said about prison. It is futile. It is a waste of time, money and effort sending people in such civil cases to jail. It is not at all worthwhile and I look forward to the time when the only people in jail will be those who are a danger to themselves or society in some really practical way. Although this is not the time to discuss them, there are many other ways people can be encouraged to pay off their debts to society, such as community service orders, but sending people to jail is very foolish.
The Minister said very few are jailed, but there are many more than one might imagine. There were approximately 200 last year. That is quite a large number of people affected by this. A large number of people are being put in jail for non-payment of television licences, and that is completely daft. That is one of the reasons I welcome this, and I hope they will be covered by it. I raised it under the Broadcasting Bill and was told it was an inappropriate location.
I support Senator Bacik. I am very glad the Minister accepted the amendment. I congratulate her. This is what the Seanad is for. The fact that this was done overnight shows how much more we could do with these Bills if they were not galloped through the Seanad.