Civil Debt (Procedures) Bill 2015: Second Stage 17 July 2015

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Welcome Minister.

While I appreciate the desire to have certain pieces of legislation passed through the Houses before the summer recess, it should never be at the expense of the democratic process.

You are aware Minister as are my Seanad colleagues that our agenda has gone from meagre at various stages over the last few months with (let’s be honest) thinly veiled time fillers…to the scenario we have now where there is insufficient time to scrutinise this Bill properly and fulfill our legislative duty.

I was unable to follow the Bill’s conclusion in the Dáil yesterday afternoon due to the Health and Children Committee session, legislative briefings and various meetings throughout the day.

There wasn’t even an updated version of the Bill reflecting the Report Stage amendments from the Dáil, when this speech was put together.

Only for a briefing late yesterday afternoon by your Department Officials, which was extremely helpful, I wouldn’t have known and been able to welcome the fact that the Bill has been amended to repeal the relevant provisions of the Enforcement of Court Orders Acts 1926-2009, which was preventing the Bill from truly abolishing the imprisonment mechanism for non-payment of civil debts.

As you know Minister I strongly support extending the recognised principle of detention as a last resort for children to adults and with urgency for the 18-24 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.

I was interested to know what kind of numbers we were looking at in terms of imprisonment for non-payment of debt and according Irish Prison Service Annual Report, 23 debtors were subject to a period of custodial sanction in 2014.

This was compared to 8,979 committals for non-payment of court ordered fines, the vast majority of which were for periods of less than three months, but nonetheless at significant cost to the State.

Minister, 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 alternative 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 now simply absurd that 5 years after the first Fines Act (2010) introduced a payment by instalment mechanism that the Court 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 the Bill before us, which echo many of the same concerns flagged by FLAC in their submission.

I had a chance to discuss some with your Department Officials at yesterday’s briefing.

Assessment of ability to pay issues:

 Why is there no statutorily enshrined guidance for the District Court in determining a debtor’s ability to pay their debt or the amount to be attached or deducted over a given period?

Minister, I put it to you that there will undoubtedly be unequal assessment depending on the court.  This already happens in relation to family law maintenance where orders can vary extensively depending on the court in question.   There is a need for guidelines. The guidelines exist.

Guidelines on reasonable standard of living, reasonable living expenses for debtors:

I suggest 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 doesn’t fall below an acceptable minimum standard.

The guidelines have their base in objective, academic work principally of Michéal Collins at Trinity College working with the Vincentian Partnership for Social Justice who in turn used a well-established model developed by the University of Loughborough in the UK and 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’s good enough for insolvency and bankruptcy deliberations I don’t see why it isn’t good enough in the context of civil debt?

I cannot help but wonder if the reason it isn’t included in the Bill is that many social welfare recipients, if not all, subject to its assessment would fail to reach the threshold and 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.

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 where as low as the €1 and €5 per week as mooted in the briefing) not cause additional hardship to those already experiencing poverty?

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 plans to introduce such arrangements.

Proceedings in Open Court:

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 (District Court-often really full) where the debtor must file details of their finances or face prosecution and where 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 out for the general public in cases where the expenses were above what was considered reasonable.  And the expenses would be the same throughout all the courts of the land.

Employment Protection Issues:

There is no protection in the Bill for the debtor against adverse or unfair treatment by his or her employer owing to there being an Attachment of Earnings Order against them.

This situation is different to a maintenance attachment in a family law context, which is regarded as a family matter/familial dispute/nobody’s business. In a failure to pay a civil debt context I am worried that an employer might infer that the employee is untrustworthy/unreliable.

FLAC Recommendation: Amend the Unfair Dismissals Acts 1977 to 1993 to specifically prohibit dismissal on the grounds of being subject to an attachment of earnings order.

Can the Minister explain why the Bill allows 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?

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The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”