COMMITTEE ON FINANCE. - ENFORCEMENT OF LAW (OCCASIONAL POWERS) BILL, 1924.—SECOND STAGE.

Mr. O'HIGGINS

When I moved the First Reading of this Bill I undertook, in response to a request by Deputy Johnson, to endeavour to ascertain what proportion of the outstanding decrees, or what proportion of the amount represented by the outstanding decrees, represented private debts, as distinct from public debts; that is, debts of the State or some other public authority. Now, I have arrived at an analysis which the Deputy will understand is only an approximation. I should say, however, that the figures are substantially accurate. There are, roughly, 7,000 decrees outstanding, representing £170,000. Of these, 2,000 of the decrees would be for public debts, 746 of them representing rates due, the amount involved being £5,410. The total amount represented by these 2,000 decrees would be £17,000. In connection with private debts, there are 5,100 decrees outstanding, representing approximately £150,000.

A point worth mentioning, perhaps, is that there is no decree in the hands of any under-sheriff, so far as I can ascertain at the moment, in respect of income tax. The income tax officials have their own powers, and seem to be content to confine themselves to those powers. The Deputy also asked me if I would make inquiries as to the number of sales outside the jurisdiction during the period in which the Act of last year was in force. Out of the thousands of decrees executed, there were not more than 50 such sales in the six months, or less than 2 per county. In about 20 counties there were no such sales at all. These are figures for sales outside the bailiwick of the sheriff executing the decrees. When the Deputy asked for numbers of sales outside the jurisdiction, I was not clear whether he meant the jurisdiction of the individual sheriff making the seizure.

I meant outside the jurisdiction of the Saorstát.

Mr. O'HIGGINS

If the former was meant—that is, outside the area of jurisdiction of the individual sheriff— I have stated there were 50 sales in six months, or less than two per county. As regards sales outside the Saorstát, I have not the precise figures, but I am safe in saying that ten would be an outside estimate. I may add that the fact that the power was not availed of to a greater extent is not to be taken as an indication that the power is not required. The under-sheriffs themselves are emphatic on this point, and they have assured me that people who would not otherwise pay, paid promptly, precisely in order to avoid the actual use of the power in question.

A Bill somewhat similar to the Bill at present under consideration was introduced last year, and, speaking to that Bill, I said that whatever odium, having its roots in the past, attached to the position of bailiff, he was a useful public functionary and that his ceasing to function was the first sign of a crumbling civilisation. Apparently, on the strength of this, Deputy Davin, in the late General Election, did me the honour of writing me up in his election literature as the bailiff's pal. He referred to me in my new rôle of the bailiff's pal. He quoted the remark I made that this officer was a useful public functionary. I want to repeat that remark with emphasis.

Mr. O'CONNELL

For the next election.

Mr. O'HIGGINS

I want to repeat, with emphasis, that the ceasing of the bailiff to function is the first sign of a crumbling civilisation. The execution of court decrees is the ultimate act of Government. It is the vindication of the legal right of the individual citizen as against his neighbour. We have to vest it with the law, and the machinery of law is the modern substitute for the stone axe. If law and the machinery of law break down, then we are back to the stone axe or some other suitable instrument by which one man can enforce his right, real or imaginary, against his neighbour. You have to get used to the idea that the mere negative destructive attitude of regarding courts and public officials of one kind or another, whether they be policemen or under-sheriffs or anything else, is not going to make for ordered progress here and is not going to make for decency of life here. If in any coming election, whether a general election or a bye-election, Deputy Davin or any other Deputy wishes to make use of these remarks of mine, he is very much at liberty to do so. The Bill that is introduced now is a temporary measure to be enforced for one year only. Its object is to secure that better enforcement of court judgments by strengthening the machinery for that purpose.

There are certain arrears in the hands of some under-sheriffs, particularly in Tirconaill, Kilkenny, Cork, Galway, Tipperary, Kerry and Wexford, where the amounts of outstanding decrees—that is, the amount of arrears— is entirely excessive and abnormal, and require very stringent measures for their reduction. Within the last few months there has been a certain improvement, but nothing very striking, and it is hoped that the enactments of this Bill will mark a definite turning point. The Bill provides for an increase in the number of Sheriffs by means of temporary additional appointments in the larger areas, such as Galway and Cork; an increase in the number of men, and an improvement in the quality of bailiffs, by authorising the under-sheriff to take on additional bailiffs to whom the State will pay small salaries in addition to fees; the removal of certain limitations and checks, which the ordinary law places on the operations of the under-sheriff, but the effect of what at present is to make it difficult or impossible for the under-sheriff to do his work; inquiry at the District Courts into the means of judgment debtors who have no seizable chattels, but who are believed to have assets or sources of income which an under-sheriff cannot seize. I put to Deputies the position of a gentleman living in the Shelbourne Hotel without any furniture and with an income, perhaps, of £1,000 from war loans. He owes money to his tailor. The tailor secures the decree, and Deputies can let their minds play on the dilemma of the under-sheriff in whose hands that decree is placed for execution—that is, dilemma under the existing law.

The Bill further provides for a speedier inquiry into the merits of claims made by third parties, that is, a debtor's wife, parents, or children, to goods seized on the debtor's premises by the under-sheriff. It is commonly known that goods which the under-sheriff wishes to seize are claimed by third parties. Now, these five heads, which I have stated, may be taken as a fair summary of the 29 Sections of the Bill. A similar Bill was introduced last year, but was limited to six months. It was successful in operation, and what is particularly gratifying is, that the under-sheriffs report that the mere fact that the additional powers were in existence was usually sufficient to induce judgment debtors to pay, without it becoming necessary actually to use these powers against them. It is one of the strongest arguments for the present Bill that no single instance of abuse or hardship was brought to my notice during the currency of the last Act, in spite of the dismal prophesies of its opponents. This earlier Act has been copied, almost word for word, in Part 1 of the present Bill, out Part 1 of the present Bill contains also some new provisions.

Before examining the Bill Section by Section, it is perhaps advisable to remind Deputies that the powers of the Under-Sheriff, as they existed hitherto, were devised rather to protect helpless and unfortunate debtors against overzealous under-sheriffs than to facilitate the under-sheriff, that is, the existing law grew up in, and was devised to meet the conditions of a country where the law and its officers were powerful and where the solvent but defiant debtor was a rare phenomenon. He is not a rare phenomenon in this country at present. Conditions in this country, though improving, are still far removed from ordinary commercial life. The judgment debtor particularly in the country parts, has learned to imagine that he is stronger and more astute than the under-sheriff; he delays, he threatens resistance, he removes his chattels, he arranges for fraudulent third party claims and up to the present he has done all this with a certain amount of success. The under-sheriff who has to face this unscrupulous and determined resistance, is hedged round by so many rules and regulations that he frequently feels that the contest is hopeless and that all he need do is to make an appearance of trying to enforce the judgment without really making a struggle, a state of mind quite fatal to the proper conduct of his business.

To give an idea of the restrictions under which the under-sheriff labours, it will be only necessary to quote the following rules and to imagine their effect as applied to-day to a seizure in districts where even the Gárda Síochána stations are in danger of armed raids and where the debtor's premises are situated perhaps fifteen miles from a town or a railway station and are approachable only by rough mountain roads. The under-sheriff must effect seizure by daylight. He must remain in possession three days before selling. He must not take the goods out of the county in order to sell them. He must advertise the sale as a sheriff's sale. He cannot seize money or notes in execution of County Court decrees; there may be ten times the amount of the debt, in hard cash, in the house; it cannot be touched. He cannot go into a house unless he is peaceably admitted; if he is recognised and the door is slammed in his face he is helpless. He will not be allowed fees for more than two bailiffs however many he may find it necessary in fact to employ. If the debtor's wife or son claims everything on the premises as against the creditor, it is so difficult, in actual practice, to disprove the claim that generally no attempt is made to disprove it.

It will be seen that these rules give an unscrupulous debtor at the present time too great an advantage even over an energetic and determined under-sheriff. I would like to state quite definitely that, in my opinion, there is nothing in this Bill which causes an unnecessary hardship to any honest man, and I am fortified in that conviction by the fact, which I have already stated, that during the six months of last year, when the Enforcement of Law Act was in operation, no single case of hardship was brought to my notice. If Deputies will remember, there were very dismal forecasts here as to what the effects of that Bill would be upon the people through the country. If I am wrong, and if there was hardship, I would like to hear of it. If any Deputy can quote any definite concrete case of abuse or hardship occasioned by the operations of the Enforcement of Law Act last year, I want to hear of it, so that we may in this Bill here, which we are considering, guard adequately against any danger of a recurrence. I want Deputies to take the view that in present circumstances here, and in present conditions here, it is absolutely necessary for our credit, both our internal credit and our international credit, that people should understand that the writ of the Courts is going to run in every square mile of our territory and that there is not going to be any addition to the necessary uncertainties and the necessary delays of the law, no uncertainty whatever as to the decree of the Court, once given, being executed. The solvent but defiant debtor must be brought to understand that this campaign against the under-sheriff is not going to be in the future, as it has been in the past, rather a pleasant game with the dice heavily loaded against the public official.

Going through the Bill, if Deputies will follow the Sections, I would like to comment briefly on each Section. The effect of Section 1 is to confer on the Minister for Home Affairs the power of appointing under-sheriffs. I am not aware that there is any objection to this, or any better alternative. It also gets rid of the old statutory form of declaration which is medieval, unsuitable and unnecessary in present circumstances. In reading Section 2, Deputies should remember that under the existing law the under-sheriff must rely entirely on his regularly-appointed bailiffs. This Section overrides the present law, and practically amounts to this: that under-sheriffs may engage men as additional bailiffs as and when they find it necessary. Sub-Section (3) of Section 2 authorises the Government to help the under-sheriff to get bailiffs by paying weekly wages so as to attract a decent, reliable type of man. In some counties it is almost impossible to secure reliable bailiffs at present, because the only pay is by fee, and the fees are too uncertain to attract anyone except the poorest type. Sub-Section (4) refers to men employed specially— that is, not employed by the week or by the month, but simply on the spot for casual work, such as driving cattle to the nearest pound or the nearest railway station. Sections 3, 4 and 5 are repetitions of sections in the previous Bill, and require no particular comment or explanation. Section 6 enables an under-sheriff to seize money or securities for money in execution of county court decrees. It is, under the existing law, within the power of an under-sheriff to seize money in execution of High Court decrees, and the effect of this Section is to extend that power to decrees of the County Court. Section 7 abolishes the rule compelling the under-sheriff to remain in possession for three days before selling. Under present conditions it would be difficult, and in some places even dangerous, to enforce this rule. Now, speaking on the Bill of last year with reference to this three day delay, I said:

Any delay there was in the past was a right of the creditor rather than a right of the debtor, or was inserted for the advantage of the creditor rather than for that of the debtor, but it did not in the past work out just in that way.

In many places the three days' interval simply gave to the debtor and his friends an opportunity for organising to ensure that there would not be many hardy bidders for the goods in question, and generally it proved to be an opportunity for defeating the ends of the law rather than being of any advantage to the creditor. It is considered now that that interval should be almost abolished and it should be left to the discretion of the under-sheriff to sell at any time that he considers most favourable, and to sell in such a way as to ensure the best price for the seized articles."

Section 8 empowers the under-sheriff to sell outside the county, or, to be more accurate, outside his bailiwick, and to recover the additional cost of doing so. This matter was debated very fully when the corresponding section of the expired Act was before the Dáil, and it was pointed out by me and others that apart from questions of intimidation, a better market value could frequently be found outside the bailiwick. I would like to give some illustrations of that. Furniture, for instance, seized in Howth could be best sold in a city of Dublin auction room, which is in a different administrative county and a different bailiwick, and the natural market place for North County Dublin cattle is the cattle market in the City of Dublin. Probably the City of Derry would be the best market for many places in Co. Tirconaill. The town of Athlone is the natural market town for many districts not in the same county. In general, and quite apart from the local boycott, county borders have no necessary connection with natural markets and this particular provision would be a useful one even in the most normal times.

Section 9 deals with the validity of purchase from an under-sheriff. The object of this Section is to protect the buyer of seized goods. Without some such assurance purchasers would run undue risks. If you propose to relieve the under-sheriff from his present obligations of the local auction, the three days' notice, and the sale, properly branded as an under-sheriff's sale, then you must insert some such provision as is contained in this Section. You must give the purchaser of the seized articles a title valid against all the warrants in the world. If you say to an under-sheriff: "You may seize A.B.'s cattle or stock, train them to Dublin, and sell them there in open market, without any indication that your sale is a sheriff's sale," then you must protect the purchaser by giving him an absolute title to the goods he buys. It is the only alternative to the present course of the local sale, the three days' notice, and the notice to everyone that it is a sheriff's sale. Section 10 is a necessary section, and is really consequential. If you give an under-sheriff the power of sending goods to a distance for sale, then you must insert a provision to ensure that the interruption of his actual physical custody of the goods will not break the seizure, so to speak. The Section is inserted by way of caution to cover periods when the seized goods or cattle are not actually in the custody of the under-sheriff—for instance, cattle sent by train for sale at a distance.

Section 11 is self-explanatory. It is designed to put a stop to the simple device of keeping a look-out for the under-sheriff and shutting the door in his face. The under-sheriff is normally liable to be sued by the creditor if he seizes too little, and by the debtor if he seizes too much, and the result is to embarass him unduly in the performance of his duties. Section 12, therefore, relieves the under-sheriff from the possibility of action by either the creditor or the debtor—by the creditor for seizing too little, and by the debtor for seizing too much, provided there is no fraud, malice, or gross negligence. The presence of one or more of these elements would need to be proved before an action would properly lie. Section 13 is an important and an entirely new Section. It may be paraphrased thus: "If the under-sheriff seizes goods in the debtor's house, but other members of the family claim these goods, the under-sheriff may ignore such claims if he thinks fit. If the claim is well founded, the injured party has a right of recovery against the debtor."

That is a Section that I anticipate will give rise to a certain amount of comment and criticism, and in anticipation of that criticism I would like to state the situation from the official administrative point of view. The Section is an attempt to put an end to fraudulent claims by the debtor's wife and family. It is an everyday experience of under-sheriffs to have the only valuable piece of furniture, for instance a piano or a side-board, claimed by the wife of the debtor. Everybody knows that the claim is false, or, even if true, that the creditor has a better moral claim, but under the existing law it simply does not pay the creditor, or the under-sheriff, to contest the wife's claim, and a return ofnulla bona is made. No doubt this is a Section which should not be enacted without full consideration, but it is considered to be necessary under all the circumstances, and I submit the following arguments in its favour. The present system has become notoriously ineffective. It is calculated to bring the law into contempt and it is an incentive to perjury. The under-sheriff will not be bound to ignore a third party claim; he has complete discretion and he will ignore the claim only when he feels that the circumstances justify him doing so. An under-sheriff is usually a lawyer; he has therefore the necessary legal training. He is unprejudiced as between the parties, and this is not the first time that he has been entrusted with quasi-judicial work. The third party is given a right of recovery against the debtor.

Against the debtor?

Mr. O'HIGGINS

Against the debtor. The members of the debtor's family may generally be presumed to have benefitted by money or goods, and that is a point I would wish to stress. It may also be well to say that a rate collector, in a seizure for rates, could at all times seize any chattels on the rated premises, to whomsoever the chattels belonged, and what usually happens, and what may be anticipated as likely to happen under this Section, is that the judgment debtor who would not pay the original creditor as long as he could avoid doing so, usually pays the third party readily enough, if the third party claim is good, because the relations between the debtor and the third party are usually such as to make it prudent for the debtor not to allow the third party to suffer.

Section 14 aims at recouping the exchequer for the additional expenses incurred under this Act (that is for additional under-sheriffs and bailiffs). Section 15 appoints all fees to be charged by or to be paid under-sheriff and others. This Section vests in the Minister for Home Affairs the power of varying the existing scale of sheriffs' and bailiffs' fees. Some of these fees require revision in order to cover present-day costs. That brings us to the second portion of the Bill, dealing with assistant under-sheriffs. This portion of the Bill authorises the employment of temporary assistant under-sheriffs. It is felt that such a step may be found necessary in such counties as Tir Chonaill, Galway, Cork, and Tipperary, where you have at one and the same time a very extensive area and a large number of outstanding decrees. Before making these appointments an interval will be allowed to see whether the existing under-sheriffs, with the help of the additional powers contained in this Bill, will be in a position to clear up their arrears, or to make such substantial inroads in them that the progress is considered sufficiently good.

Part III. deals with the examination of debtors. The effect of this part of the Bill is to extend to the District Court the existing system of examining a debtor as to his means, and punishing him for fraud or wilful disobedience. The present law on the subject is largely ineffective because of the trouble, delay, and expenses involved in bringing small debt cases before the County Court or the High Court. By bringing the debtor before the neighbouring district court it is hoped to make much more effective, and certainly much cheaper, this very valuable part of the machinery for bringing defaulting debtors to account. Examination as to means is aimed mainly at debtors who have no furniture or cattle, but who have incomes or investments, or moneys in bank; people, for instance, who live in hotels or lodgings.

It may be well to emphasise the fact that a debtor is not to be imprisoned for mere non-payment, but only for refusal to pay. I am anticipating a certain amount of pathetic eloquence in reference to this Section, and I am doing my utmost to forestall that by making it clear to Deputies that whatever this portion of the Bill provides for it does not provide for imprisonment for debt. It provides for imprisonment for contumacy, imprisonment for contempt of court, imprisonment for wilful disobedience of a court order, but certainly not imprisonment for debt. This Bill does not render any debtor liable to imprisonment who is not already liable under the existing law. That fact also, if properly grasped, might prove a barrier against sentimentalism. The Bill merely extends the power of ordering imprisonment to a cheaper and more accessible tribunal. It is not a new power. It is an extension to other courts of powers that already exist, so that the only real change is that it will be cheaper in future to put a dishonest debtor where he ought to be—in jail.

Coming to Part IV., if Deputies will look at Section 26 they will see there that the District Justice is empowered to decide the ownership of property in "third party claims" up to the value of £25. If this Section is read in conjunction with Section 13, it will be seen that the Bill, if enacted as it stands, greatly expedites the settlement of "third party claims," thus removing one of the most serious flaws in the present system. I may say that the Bill was drafted and prepared after a good deal of consultation and correspondence with under-sheriffs as to what their real difficulties were, as to what their experience of the working of the previous Act was, and there was nothing to show on the other side—there was no correspondence, no interviews with T.D's., or others, to show that under the Act of last year there was any undeserved hardship on a single judgment debtor. I circulated to Deputies, I think, certainly I read them here, returns showing the decrees outstanding in the various counties and the amount of money represented by those decrees, and I gave to-day a rough analysis of the situation, showing that you had £170,000 outstanding in decrees, and 7,000 decrees in the hands of under-sheriffs. I was not sure on the last occasion what point Deputy Johnson proposed to make out of the comparison of public and private debts. But the decrees in respect of private debts are 5,100 as against 2,000 decrees in respect of public debts. The amount of money outstanding in private debts is £150,000 against £17,000 on debts of a public nature.

There will be no real progress, no credit, no commercial atmosphere until the situation represented by these figures is dealt with, and dealt with thoroughly. People will not lend or take risks of any kind unless it is made abundantly clear to them that machinery to recover, well oiled, thoroughly overhauled, and brought into line with the requirements of existing conditions, is at their disposal. I suggested on the last occasion, and I would like to repeat now, that if the situation were really faced and properly understood, the last people to oppose a Bill of this nature ought to be the Deputies who sit opposite. It is recognised, and it is the common case, that there is economic depression in the country; it is a common case that there is unemployment to an extent which constitutes a social menace, and which constitutes a menace even to the State fabric. That economic depression will not pass, and that unemployment will not be drained up until the people who have the money to put into productive enterprises of one kind or another can be made to feel that there is security for them, and unless people who have money to lend, people who are in a position to give credit of one kind or another, can be made to feel that in the last resort the law and its machinery is there for their assistance. Now, the Government could not say to people in commercial life that the situation represented by those figures here meant that the law and the machinery of the law were available in good condition for the recovery of lawful debts. The figures speak for themselves, and the story the figures tell is that the machinery of the law badly needs overhauling, oiling and repairing, and badly needs to be brought in line with the actual conditions throughout the country. That is what the Bill does. Like other Bills which it has been my duty to introduce and stand over, it has a hard ring. The machinery which a Minister for Home Affairs must answer for here will always have a hard ring—the police forces, the prison service, and the execution of court decrees. All that cannot be done to slow music. It is government, and the sanction of every law in the last resort is the State forces. I want here clearly, logically, and moderately to be put any real objection there is to this Bill. Is it that people should not pay their lawful debts? Should the creditor be allowed to go bankrupt rather than the debtor, and creditors have gone bankrupt in the absence of the means of recovering what amount are due to them.

If it is admitted that lawful debts should be paid, and that Court Decrees should be carried out; if it is a common case that we ought not to send down the judge in his pomp to send much time and thought in the hearing of cases, and finally to say that such and such a thing be done; if it is a common case that we ought not to put a judge in the position of giving a decree and then have that order put in the wastepaper basket after he is gone, then this Bill is necessary. The existing law bearing on the position of under-sheriffs is inadequate to meet the present existing conditions of the country. The system of the local pound which can so easily be broken open, and the local auction after 3 days' notice, which can be so easily upset or boycotted, all this brings us back to the piping times of peace before the European war. It was very good in 1907, 1908, 1909, 1910 and 1911. It is not sufficient now, and the figures I have given to Deputies give proof of that. I ask for clear thinking in whatever criticism this Bill is to be subjected to, and absence of sentimentalism. I do not want people to go back to the battering ram and the crowbar brigade, and generally to the age when there was not a native parliament functioning in the country to pass its Land Act after a fair review of its merits. Take the situation now. Let any Deputy about to criticise the Bill, put himself in the position of a judgment creditor who has obtained his decree from the Courts 18 months ago, and who has not got the justice which the hearing of his case entitled him to, and let him say what are the provisions of this Bill which are harsh, which are in excess of the requirements, and which are tyrannical. That is the kind of criticism the Bill should get, not the kind of criticism which the Bill of last year got. I want to say in that connection that Bills, temporary Bills, introduced last year met with unmeasured hysterical criticism, which their successors this year did not meet with. We are getting on, and we are glad to see it.

I second the motion.

I am sorry Deputy Magennis is not present. The chief opposition to last year's Bill came from Deputy Magennis. Presumably, there has been an attempt to square that circle, and Deputy Magennis's opposition has been bought off, but notwithstanding, I think, if Deputies who were not in the Dáil last year will spend an hour or two in the reading room, and read Deputy Magennis's attacks on the Bill of last year, they will be convinced of the cogency of his arguments, and the unanswerable case he made. I hope he will make the same case against those Sections which are not amended this year, and that he will get greater support than he got last year.

Mr. O'HIGGINS

If the Deputy will pardon me, I have to leave, and it will not be possible for me to remain and hear the comments of Deputies on the Bill. The Secretary of my Department is in attendance and will take notes for me, which will enable me to consider the matters raised during the discussion. I hope to be able to reply to them when this discussion is resumed, as I suppose it will not finish to-night.

In that event I beg to move the adjournment of the debate until to-morrow.

Agreed.