Amendment No. 1 in the name of Deputy Mac Lochlainn arises from Committee proceedings. Amendments Nos. 1 to 3, inclusive, are related and may be discussed together.
Fines (Payment and Recovery) Bill 2013: Report Stage
I move amendment No. 1:
In page 9, lines 30 and 31, to delete “12 months” and substitute “24 months”.
To clarify, do I speak on all three amendments now?
Yes. Amendments Nos. 1 to 3, inclusive, will be discussed together.
Amendment No. 1 is fairly self-explanatory. As the Minister of State is aware, my party supports the objective of this long-overdue Bill. One must ensure, in so far as possible, that people are not being sent to prison for non-payment of fines. However, one must also try to ensure the fines are actually collected in a realistic fashion. Sinn Féin considers that people who will come before the courts for non-payment of fines should be given a period of 24 months. In this respect, Sinn Féin is supported by other groups such as the Free Legal Advice Centres, as well as non-governmental organisations that work in this area. I ask the Government to consider extending the timeframe for the payment of a fine in these instalments from 12 to 24 months.
As for amendment No. 2, an administrative charge comprising 10% of the fine is proposed in the Bill. My point is that a maximum value should be placed on that charge. The amendment proposes that the administrative charge should not be in excess of €50. It should be €50 regardless, in that even if the fine is higher than €500, €50 should be the maximum amount for the administrative charge. Amendment No. 3 pertains to the amount that cannot be subject to instalments. The Government has provided that any amount less than €100 must be paid up-front and cannot be subject to instalments. This amendment proposes the reduction of that threshold to €50. Again, the objective of all these amendments is to make the legislation work and to ensure that the maximum number of people possible actually pay the fine and are not obliged to go to jail or engage in community service unnecessarily.
I thank the Deputy for his suggested amendments and for his support with regard to the overall thrust of the Bill. I propose to respond to each amendment in turn and to offer the Minister's perspective thereon. On amendment No. 1, which proposes to change the period of time from 12 to 24 months, it is the view of the Minister that the 12-month instalment period set out in the Bill is appropriate in all the circumstances. It must be remembered that section 5 of the Bill requires the court to take a person’s financial circumstances, where they are known, into account in determining the amount of a fine. Allowing 24 months would prolong the entire process, particularly where a person defaults and the other provisions are engaged. While the 2010 Act did allow for an extension of the 12 months to up to 24 months, it must be remembered there was no automatic entitlement to pay by instalments in the 2010 Act and even if instalments were allowed, the court could set any period up to 12 months initially. This Bill simplifies the process by removing the requirement to apply to the court to be allowed to pay by instalments and by allowing everyone 12 months to pay the fine, regardless as to his or her means or the size of the fine, provided it is greater than €100. In the Minister's view, this is the correct balance and it is not in the interests of the administration of justice that the collection of fines should drag on indefinitely. Therefore the Government cannot accept this amendment.
Amendment No. 2 seeks to set an upper limit on the amount of the administration fee. The first point is that this administration fee is intended to defray the cost of the instalment system as a whole. Some of these costs are fixed and are not related to the size of the fine. However, the cost to the Exchequer of receiving the fine over 12 months rather than immediately is directly related to the size of the fine. The bigger the fine, the more it costs the State. Second, the Deputy’s main concern appears to be that the administration fee may represent too big a burden on the fined person at certain levels. However, I point out to the Deputy that 90% of all fines are less than €500. Consequently, up to €500, there is no difference between the administration fee paid under the Deputy’s amendment and the provisions in the Bill. As for what will happen at higher levels, a €750 fine, assuming the administration fee is 10%, will cost €825, as against €800 under the Deputy’s proposal. Under the Bill, a person who is fined €800 must pay monthly instalments of €68.75, whereas under the Deputy’s proposal, they would be obliged to pay €66.67, that is, €2 less per month or 50 cent less per week. At €1,000, the difference is €4 per month or €1 per week. I therefore do not believe these differences are material in the overall scheme of things, and for this and the other reasons mentioned earlier, the Minister cannot accept this amendment.
Amendment No. 3 seeks to reduce the level of fine that qualifies to be paid by instalments from the €100 provided for in the Bill to €50. The view of the Minister is that €100 is the correct threshold. Paid by instalments, it is the equivalent of €8 per month or €2 per week. I do not believe this is too onerous and must again be seen in the context of the fine itself being set having regard to the person’s financial circumstances. I will therefore not be accepting this amendment.
I acknowledge the Deputy's earlier remarks on his agreement with the thrust of the Bill in respect of trying to make far greater use of fines and other sanctions rather than custodial sentences. I conclude by making two points, the first of which is to emphasise the acknowledgement the Bill already gives to a person's financial circumstances.
Some of the amendments to which the Deputy refers when implemented would not make a significant difference in the payment of the fine by the person on a monthly or an annual basis. I thank the Deputy for the amendments and the way they were introduced.
I move amendment No. 2:
In page 9, line 36, after “fine” to insert “or not in excess of €50 for a fine over €500”.
Is the Deputy pressing the amendment?
I always get confused on Report Stage. The previous amendment was put to the Minister, but it was my amendment.
The question was: "That the words proposed to be deleted stand."
Is the Leas-Cheann Comhairle asking me if I am in favour of the amendment?
Yes, amendment No. 2.
I am in favour, tá.
On the first amendment, was the Leas-Cheann Comhairle asking if I was in favour of it? He put the question to the Minister and he said "Tá", while I said "Níl".
I was asking whether the Deputy was pressing the amendment. The question is turned around to declare that the words proposed to be deleted stand. That is the difference.
I move amendment No. 3:
In page 9, line 39, to delete “€100” and substitute “€50”.
Amendments Nos. 4 and 12 to 16, inclusive, are related and will be discussed together.
I move amendment No. 4:
In page 10, to delete lines 16 to 21 and substitute the following:
“(a) make a community service order if section 4 of the Act of 1983 has been complied with, or
(b) make an attachment order if it is satisfied that it would not be appropriate to make a community service order in respect of the person.”.
I am disappointed that the Minister for Justice and Equality, Deputy Alan Shatter, is not here. It is the first time in my experience that he has not turned up for such a debate. He must be under terrible pressure. I do not doubt for one second that he is a very hard-working Minister, but I find it strange that he is not here. I have tabled 12 amendments, six of which have been deemed to be in conflict with the principle of the Bill, which I find odd. The others have been grouped together. I will give most of my thoughts in one fell swoop.
In terms of the average number of prisoners per head of population, Ireland fares quite well internationally, but we seem to be reaching a plateau. According to the world prison population list, we have climbed down from a high of 100 prisoners per 100,000 of population in May 2011 to 88 in September last year. This is still a higher rate than for Germany, the Netherlands, Sweden, Norway, Denmark and Finland but only one eighth of the number of prisoners per head of population in the United States. We are average among European countries but with the caveat that we had the highest percentage imprisonment rate increase of all euro zone countries in the past 12 years.
The number of committals for non-payment of fines is astronomically high. According to the Irish Penal Reform Trust, there were 8,304 committals for non-payment of court ordered fines in 2012, including 242 for failing to pay fines imposed for not having a TV licence. One can imagine the people who were imprisoned for not paying their TV licence fee. At €160 per licence, the cost of the unpaid licence fees for the 242 people concerned comes to just over €38,000, less than half the money John Waters and the Iona Institute received recently. Also, 85% of fine defaulters are back in custody within four years.
It is clear from statements issued by the Minister that his objective while in government is to bring down these numbers, if possible, especially the number who receive sentences of three months or less. In May last year the Minister stated his concern with the high levels of turnover in the prison system when he said:
It is disappointing to note Ireland’s committal rate (imprisonment of offenders) in 2011 was 380 per 100,000 people compared to a European average of 233. Our release rate was 376 per 100,000 – more than double the average of 165. These figures alone show that we are out of kilter with Europe and other parts of the world in this regard. They confirm that too many individuals are being sentenced to very short terms of imprisonment instead of alternative mechanisms being utilised.
The Minister also stated his support for increased implementation of community service orders. On the payment of fines, he suggested the top priority was to drastically reduce the number of persons committed to prison for non-payment, highlighting community service as one of the preferable alternatives to a prison sentence. He said:
It is disappointing to note that 2,569 community service orders were made in 2012 compared to 2,738 orders in 2011. I want to ensure that greater use of community service orders is made. Under the Criminal Justice (Community Service) (Amendment) Act in 2011, judges are required to consider the appropriateness of a community service order in circumstances where an alternative sentence of imprisonment of up to 12 months would be considered. I am concerned that too many people are still being sent to prison unnecessarily at a time when the Probation Service does not have the capacity to take on more offenders.
The Minister also said:
I am strongly of the view that we need to keep the numbers of people committed to prison for the non-payment of fines to the absolute minimum. We have already legislated to require judges to take a person’s financial circumstances into account when setting a fine. Work is now well under way on further major reforms to the fine payment and recovery system in Ireland. The Fines (Amendment) Bill, which I expect to publish this term, will, when enacted, make it easier for people to pay a fine and where they fail to do so, there will be sufficient options available to the courts in the form of, for example, attachment of earnings, community service or recovery orders to all but eliminate the need to commit anyone to prison for the non-payment of fines.
While I agree with the Minister in his viewpoint on this matter and welcome the general aims of the proposed Bill, my contention with the particulars of the Bill and the general purpose of my proposed amendments surround two issues. First, the Bill appears to prioritise some measures over others. If this is the case, there should be a reshuffling to place community service as the top priority option as an alternative to prison sentencing for the non-payment of fines. The order seems to be as follows: recovery orders; attachment orders; community service; and prison. Second, not only would I like to see community service as the principal alternative, I would also like to remove the option of recovery orders entirely in order that the order of actions in terms of preference would read as follows: community service; attachment orders; and prison.
The justification for these changes to the Bill rests on two arguments. First, community service has many benefits, including for the community, the offender, the prison system and the Exchequer. Second, recovery orders are counter-productive, especially owing to the potential violence that has been known to occur in their implementation and the fact that those on the receiving end will almost certainly be among the most vulnerable in society. There are numerous studies of the comparative advantages and disadvantages of the use of community service as an alternative to imprisonment and the overall consensus seems to be that from a quantitative point of view, community service can, without doubt, be regarded as one of the most successful late modern punishments. Introduced in the 1970s, it became widely established throughout Europe by the 1990s. Of particular note is the fact that in nearly all countries where it was adopted it expanded dramatically as an alternative to a prison sentence. It is widely seen as a more humane alternative to prison and a more effective means to achieve the dual goals of rehabilitation and reparation. Whether rehabilitation is interpreted as a change in the offender’s attitudes and views or as the achievement of reduced reoffending, there is evidence to support the claim that in both cases community service has a positive effect.
The work of Professor Gill McIvor of the Scottish Centre for Crime and Justice Research, in particular, attests to this claim. Community service orders should be encouraged as they have numerous productive offshoots, such as the regeneration of shared public spaces in a time of drastic public spending cutbacks, thereby facilitating work that would otherwise not get done. They provide an opportunity for people to learn new skills, enable reparation for crimes to the community, facilitate the integration of the offender in the community, and function as a cost-effective penal alternative to imprisonment.
An additional consideration is the terrible reality of prison overcrowding, with some facilities taking up to 40% more than recommended capacity at any one time. For instance, according to the Inspector of Prisons and Places of Detention, on 8 March 2011 Mountjoy Prison held 710 prisoners in a facility that should have had no more than 517. According to the Irish Penal Reform Trust, more than 70% of prisoners are unemployed on committal and a similar percentage self-report as not having any particular trade or occupation. Gillian Smith of Trinity College Dublin recently commented on the numbers of disadvantaged people who find themselves going through the prison system. In an online article on the IPRT's website she stated:
The poor and disadvantaged are greatly over-represented in our prisons. Paul O'Mahony's oft-cited 1997 study of prisoners in Mountjoy revealed that four out of five had left school before the age of 15, one in three grew up in a household where no parent was in employment, and 37% had lost a parent by the time they were 15 years old. Prisoners in Ireland are 25 times more likely to come from and return to areas of serious deprivation, and the majority are unemployed upon committal to prison. Some criminologists maintain that prison is in itself criminogenic, such are the barriers to reintegration following time in custody.
Indeed, criminal psychiatrist James Gilligan has observed that "the most effective way to turn a non-violent person into a violent one is to send him to prison".
Taking these points into consideration, it is clear that the main impetus behind the proposed Bill is welcome, although overdue. What is not clear is why recovery orders are proposed as the first alternative to imprisonment for non-payment of fines. It is evident that the vast majority of people who are committed to prison each year are there as a result of the failings of the socioeconomic system. It is fair to presume that many of those imprisoned for non-payment of fines are in that position because they could not afford to pay them. Indeed, 60% of people serving sentences of six months or less already suffer poverty and may well be homeless. The sheriffs who will be appointed as receivers by the court under the recovery order system will be breaking and entering these people's homes, if they have one, only to find that after they get their cut of the loot, there is not enough to cover the sum of the original fines. On the whole, those who can afford to pay their fines do pay. What we have is a two-tier justice system wherein the rich are rewarded for their ability to pay and the poor are punished for their inability to do so.
Under the new reliance on recovery orders and gangs of men breaking into houses, the punishment is doubled, people are embarrassed and abused, resentment in the community is reinforced, and nothing is improved in any way, shape or form. The costs of the sheriff alone are unlikely to be collected, not to mention the fines being sought. Too often in recent years I have heard terrible stories of bullying tactics by sheriffs, who sometimes bring a few thugs along with them as reinforcements. In England, in 2009, a bailiff was responsible for a pensioner dying of a heart attack. The bailiff told the pensioner he had to pay the £340 he owed on a speeding ticket or the bailiff and his colleagues would enter the pensioner's house and take his goods. CCTV footage showed how this man collapsed and died in the street after the bailiff drove him to a cash point in the town centre.
In general the media do not publish this kind of story, but the self-publishing vehicle that is YouTube shows us a seedy and grim reality. One video shows a sheriff breaking and entering a home followed by six men who proceed to empty it of its contents. The owner arrives home and, upon his discovery of the break-in, has a heart attack. He is found by paramedics convulsing on the empty sitting room floor. These are surely not isolated incidents. The very nature of the work done by sheriffs makes conflict, violence and the suffering of those on the receiving end par for the course. As so often with the media, however, we only hear about the poor when they get in the way of the powerful.
The Minister has indicted his concern regarding the recidivism rate in Irish prisons. In order to stem its increase, he has stated, we must tackle the social conditions that underlie criminality. Speaking at the Irish Penal Reform Trust annual lecture in 2011, he said, "Sending offenders to prison without tackling the underlying social conditions of their criminality – the lack of skills, education, and employment – while they are in prison only serves to reinforce the cycle of criminality." Does the Minister not agree that taking what little people have from them when they are stuck in that cycle of criminality will only make the situation worse? Does he not agree that this approach will lead such people to view the institutions that govern our lives as not deserving of the respect they demand for themselves, by force if necessary?
When the Minister says that we need to tackle the underlying social conditions of criminality, it denotes an acute awareness of the problems facing our society, the prison and legal system included. I mentioned that Finland, Norway, Sweden, Denmark, Germany and the Netherlands all have lower numbers of prisoners per head of population than Ireland. What all these countries have in common is that they also have lower levels of inequality than Ireland. According to a report by TASC, of the eurozone countries, Ireland ranked first in terms of earning inequality in 2006. A recent European Anti Poverty Network document on wealth distribution calculated that in Ireland, 1% of the population holds 20% of the wealth, 2% controls 30% and the top 5% disposes of 40% of private assets. A recent Oxfam report indicated that inequality in Ireland will soon be four times the OECD average. That is a frightening figure.
In their acclaimed book The Spirit Level, Richard Wilkinson and Kate Pickett show that greater inequality reinforces the most undesirable elements of any penal system and speaks to endemic problems connected to the failings of how a particular society is organised. They write:
Imprisonment rates are not determined by crime rates so much as by differences in official attitudes towards punishment versus rehabilitation and reform. In societies with greater inequality, where the social distances between people are greater, where attitudes of "us and them" are more entrenched and where lack of trust and fear of crime are rife, public and policy makers alike are more willing to imprison people and adopt punitive attitudes towards the "criminal elements" of society. More unequal societies are harsher, tougher places. And as prison is not particularly effective for either deterrence or rehabilitation, then a society must only be willing to maintain a high rate (and high cost) of imprisonment for reasons unrelated to effectiveness. Societies that imprison more people also spend less of their wealth on welfare for their citizens. This is true of US states and also of OECD countries.
The emphasis on the use of recovery orders and attachment orders as proposed in this Bill gives the lie to the idea that the Government is interested in rehabilitation and reform. While the reforms proposed may keep many more people out of prison, the choice of preferred substitutes betrays a genuine lack of understanding and a severity of attitude towards the most vulnerable among us. As such, the proposals fail to do what could be done to tackle the social conditions of criminality. If the Government is serious about reducing prisoner numbers, it must start to tackle inequality at its roots. This will mean more public investment, not less, which sadly has been the order of the day in recent years. The powers that be in Europe have chosen the path of austerity and the Irish Government has been compliant in that. Austerity may have been good for the financial markets and big business - just what the neoliberal doctors ordered – but it has proved a bitter pill for most and for the marginalised in particular, who make up the majority of our prison population. I urge the Minister to consider making greater use of community service. The order of actions in the Bill must assign community service as the preferred option.
Deputy Wallace has made several very important points which go to the heart of certain ethical and practical issues relating to these proposals. With no disrespect to the Minister of State, Deputy Paschal Donohoe, it is a disgrace that the Minister, Deputy Alan Shatter, is not in the Chamber for this debate. In fact, it is unprecedented for the lead Minister not to be present for the introduction of a Bill. The Minister has lauded his actions in bringing forward this legislation and posed as very much a reforming Minister, yet he could not be bothered to be here this morning. That is extremely regrettable.
All sides of the House have welcomed the fact that we are talking about moving to a situation in which people would not go to prison to serve short sentences. That is a good thing but it should not lull us into blindly accepting this legislation as a step in the right direction. For all the reasons highlighted by Deputy Wallace, it is not a step in the right direction. It is a step from one failed policy to what will be another failed policy.
I know that the real Minister, or the big Minister, or whatever one wants to call him, moves in circles of people with deep pockets but subliminally this Bill tells people that if they have the ability to pay, they have a licence to do whatever they like, they will never face the ignominy of going to prison or the possibility of having to do community service to atone for what they have done. They can pay their way out of anything. That is the wrong message to give in any society. It is particularly offensive in respect of certain crimes. Unfortunately, the court system is adopting this approach more often. A report published after Christmas about the amount of money collected by the courts showed that a quarter of all the money collected in court fines was collected in County Kerry. The Judiciary there obviously has a tactic of not sending people to prison but of fining them instead. That has led in part to many of the local and community groups relying on the money from the court system and the word going out that one can pay one's way out of anything. Earlier this year a District Court judge in Dublin gave a 21-year-old medical student, who had pleaded guilty to assaulting his girlfriend, no record. He was allowed to walk free from the court on condition that he paid €5,000 to Women's Aid and the Simon Community. That raises a couple of problems, it sends out the signal that one can pay one's way out of sexual assault and get away with it yet people from a disadvantaged background, who do not have the ability to pay, get a record for a much lesser offence. That cannot be. There are problems about organisations such as Women's Aid, which do important work, having to rely on such donations. That is somewhat contradictory. It is not in any way appropriate that people who would be guilty of such crimes would be allowed to pay fines in that way.
One of the worst aspects of this is the information given by Deputy Wallace on the number of people in prison through crimes of poverty. A financial penalty will not work for those people. Last week we visited Margaretta D'Arcy and another elderly citizen in Limerick Prison, both serving short prison sentences. They told us about the types of people in prison with them. Their stories are no different from those in any other prisons. The majority are young people from disadvantaged backgrounds. In the women's prison the same group of young women come in cycles of short sentences. Invariably, they have children at home and their family life is disrupted. Many of those are in for crimes of poverty, crimes linked to drugs and so on. How would they pay a fine? If one is in for shoplifting does one have to shoplift even more to pay the fine? It does not make any sense. If we were to spend a fraction of the money we spend on prisons, on giving people an education and a decent standard of living we would be much better off.
It is good not to send people to prison to serve short sentences. That is a ridiculous thing to do. We are way out of kilter with other countries but we must be very careful about the message we send out. It is twofold: if one is rich one can pay one's way out of anything and do whatever one likes, but if one is disadvantaged that situation will not change. Unless we learn the lesson from that and start to deal with inequality in our society we will not be any closer to the reformed and equitable type of society to which I would aspire.
Regardless of the political views that colleagues may have of the Minister for Justice and Equality, Deputy Shatter, people would acknowledge that he takes his legislative duties and his role within this Chamber and on committees very seriously. That is why I am standing in to take this Bill and address points on it. I have to reach the conclusion that in using this opportunity, which Deputies Wallace and Daly are entitled to do, to articulate their world view, as is their right, they do so by either deliberately misunderstanding what is in the Bill or deliberately ignoring its thrust. Both Deputies have said we should not send people to prison to serve custodial sentences but we need to propose alternatives. I agree with much of Deputy Wallace's analysis of the number of people in prison and why they are there, and the different ways in which we should and could handle that. That, however, is what this Bill sets out to do. The thrust of this Bill is to give the courts the ability, and to put tools at their disposal, not to have to impose custodial sentences on people but to make different options available to them. The point the Deputies made about the need to take account of the financial circumstances of the person is put in place under section 5 of this Bill. The Deputies want a system which enables the courts not to put people in prison and gives them different options and tools to put other sanctions in place, but that is what this Bill seeks to do. That is the role of this Bill. That is why the Minister is introducing it. In response to the overall point about moving from one failed policy to another, how is that? Deputy Daly should substantiate her point. The thrust of this Bill is to give our legal system different options which, as I understand it, is exactly what the Deputies are looking for. If my analysis is wrong I welcome the opportunity to be corrected. Section 5 puts in place different options for our legal system, of which it can take advantage, which is what the Minister wants to do.
I will address each amendment in turn. Taking the amendment to section 7 first, the Deputy wants the court first to consider the making of a community service order where a person defaults on paying a fine and only to consider making an attachment order where it is not possible to make a community service order. This inversion of the provisions of the Bill would make little sense. There is a basic principle that must be understood here, that where the court decides that the appropriate action is to impose a fine on conviction, the person is required to pay the fine. If the person does not pay the fine, then, under this Bill, the State will make every effort to recover it. When a court decides that the appropriate course of action is a fine, taking into account the circumstances of the case and the person before it, the Bill gives it the ability to pursue the payment of this fine, only if the court decides that a fine is the appropriate action in the first place. If the person is in employment, then the first recourse will be to the person’s earnings. This is logical and flows from the imposition of an appropriately set fine in the first instance.
We owe it to the vast majority of people who pay their bills or fines when asked or required to do so to ensure that those who have the ability to pay debts or fines, do so.
I put it to the Deputy that the amendment would do the opposite. What we are looking to do is to put in place a legal system that will make more options available to the legal system and the courts which is what I understand Deputy Mick Wallace wants to see happen.
Amendment No. 12 is partly consequential on amendment No. 7. As I am not accepting that amendment, I cannot accept amendment No. 12. The other part of amendment No. 12, as well as amendments Nos. 13 to 16, inclusive, are consequential on amendments Nos. 5 to 10, inclusive, which were ruled out of order. These amendments, if accepted, would leave a gap in the Bill, where recovery orders were made, as there would be no follow-through where the receiver had failed to recover the fine. I am sure the Deputy will agree with me that without deleting Part 3, as he had intended, the references to recovery orders in sections 19 and 20 must remain. I am, therefore, not accepting amendments Nos. 12 to 16, inclusive.
I have visited prisons as a Deputy and seen the conditions people must face, as each Deputy has acknowledged. The Minister is committed to doing all he can to deal with the issue and reverse it, but an essential thrust is to make other options available to the courts which is exactly what the Bill seeks to do.
I remind the House that all Members can speak twice on each amendment or group of amendments, but the second contribution shall not exceed two minutes. The Member who moves an amendment retains the right of reply.
The point of my amendment is to give greater prominence to community service because the State, after the Bill is passed, will still not make enough use of community service. I have outlined many of the merits of community service, but with regard to people who can afford to pay fines of any size, the State should consider making community service compulsory to drag them kicking and screaming into the real world. Many people who make a good deal of money and have no problem with paying fines have never dirtied their hands in the real world and it would not do them any harm to do so.
Second, recovery orders should not be included in the Bill. That is a destructive way of operating. More often than not, the people who cannot pay their fines are the ones who cannot afford to pay them. Going to their houses and removing belongings from them is counter-productive and the Minister is making them poorer. If I cannot pay a fine because I do not have enough money, I would rather go to prison than have the sheriff come and empty my house. That is a choice I would take if I had it. I reiterate that I would like to see greater use of community service. We are way behind the European average in its use and will remain so if the Bill is passed in this manner. Also, I would like to see recovery orders removed from the Bill.
It is appropriate that we raise ethical and ideological arguments around this issue and this is an appropriate forum in which to do so. To substantiate the point, there would be widespread acceptance of the idea that sending people to prison for a short time is a failed policy. My point about fines being a replacement is precisely the one being made. If people have an ability to pay, it is an easy option for them. It is a licence to pay their fine and not a hardship. If people do not have an ability to pay, what is the point in fining them?
The Minister of State makes the point that the Bill is seeking to do what we want, but it is not because one only needs to read the Title. If it was entitled the non-custodial short-term sentence Bill, it might address that issue, but it is entitled the Fines (Payment and Recovery) Bill; therefore, the Minister is not giving judges options per se, rather he is prioritising fines as an alternative to, for example, the better alternative put forward by Deputy Mick Wallace, namely, community service. The reasons for this are clear. Why should someone who is rich and has the money to buy his or her way out of anything be allowed do this? It is appropriate that he or she do some community service. That would be a greater hardship for somebody who has money than the payment of a fine. If one does not have money, it is a much better option than a short-term custodial sentence. It is about having a more reforming attitude to the way in which judgments are given, but we are saying that for various reasons, community service should be the way, rather than fines. The Minister is giving judges a licence to prioritise fines, which is wrong on a number of counts.
I did not dispute the Deputy's right to express her ideological view on this issue. What I did was engage in a debate on it. I disagree with her and her assessment of the Bill. I will respond to each of the points she has made. First, on the ability of a person to pay, section 5(2) states "Where a person of full age is convicted of an offence, the court shall, in determining the amount of the fine (if any) to impose in respect of the offence, take into account the person's financial circumstances". The Bill, therefore, recognises the fact that in respect of the person before the court - I accept the point the Deputy is making about his or her background and economic circumstances - it will be able to give recognition to these in the assessment it makes.
On the point made by Deputy Mick Wallace, I challenge the logic of what he is saying because if he is accepting that fines play an appropriate role in this regard and if the person does not pay a fine, should the legal system not have the ability to have recourse to the payment of that fine, if that is what it deems to be the appropriate course to take? I emphasise that all of this is in the context of trying to ensure we put in place different legal sanctions, as opposed to a custodial sanction only, which I agree with the Deputy was inappropriate in many cases in the past.
My point remains the same. Those who cannot afford to pay fines should not be victims of recovery orders. They should have no choice other than to do community service. In terms of the punishment to be imposed, if we do not have a facility to create the opportunity for enough people to do community service, this is something we should examine with a view to creating a better facility. Other countries make far greater use of this option and we should make more use of it. I argue that the Bill is not prioritising the use of community service. I understand we are both entitled to look at the matter in the way we see fit.
Through a different prism.
If we were to agree on everything, it would be a very boring world.
May I respond?
No. I am sorry, but it is not provided for in the order of the House.
- Barry, Tom.
- Breen, Pat.
- Bruton, Richard.
- Burton, Joan.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Catherine.
- Byrne, Eric.
- Carey, Joe.
- Collins, Áine.
- Collins, Niall.
- Conaghan, Michael.
- Conlan, Seán.
- Connaughton, Paul J.
- Conway, Ciara.
- Coonan, Noel.
- Corcoran Kennedy, Marcella.
- Costello, Joe.
- Coveney, Simon.
- Cowen, Barry.
- Creed, Michael.
- Creighton, Lucinda.
- Daly, Jim.
- Deenihan, Jimmy.
- Donohoe, Paschal.
- Dooley, Timmy.
- Dowds, Robert.
- Doyle, Andrew.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frank.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Flanagan, Charles.
- Grealish, Noel.
- Griffin, Brendan.
- Hannigan, Dominic.
- Harrington, Noel.
- Harris, Simon.
- Hayes, Brian.
- Heydon, Martin.
- Hogan, Phil.
- Howlin, Brendan.
- Humphreys, Heather.
- Humphreys, Kevin.
- Keaveney, Colm.
- Kehoe, Paul.
- Kyne, Seán.
- Lynch, Ciarán.
- Lynch, Kathleen.
- McCarthy, Michael.
- McEntee, Helen.
- McGrath, Michael.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Moynihan, Michael.
- Mulherin, Michelle.
- Murphy, Dara.
- Murphy, Eoghan.
- Naughten, Denis.
- Neville, Dan.
- Ó Fearghaíl, Seán.
- O'Dea, Willie.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Dowd, Fergus.
- O'Mahony, John.
- O'Reilly, Joe.
- O'Sullivan, Jan.
- Penrose, Willie.
- Phelan, Ann.
- Phelan, John Paul.
- Reilly, James.
- Ring, Michael.
- Ryan, Brendan.
- Smith, Brendan.
- Spring, Arthur.
- Stagg, Emmet.
- Stanton, David.
- Troy, Robert.
- Tuffy, Joanna.
- Twomey, Liam.
- Walsh, Brian.
- Boyd Barrett, Richard.
- Broughan, Thomas P.
- Collins, Joan.
- Colreavy, Michael.
- Crowe, Seán.
- Daly, Clare.
- Doherty, Pearse.
- Ellis, Dessie.
- Ferris, Martin.
- Halligan, John.
- Healy, Seamus.
- Healy-Rae, Michael.
- Lowry, Michael.
- Mac Lochlainn, Pádraig.
- McGrath, Finian.
- McGrath, Mattie.
- McLellan, Sandra.
- Murphy, Catherine.
- Nulty, Patrick.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O'Brien, Jonathan.
- O'Sullivan, Maureen.
- Pringle, Thomas.
- Ross, Shane.
- Stanley, Brian.
- Tóibín, Peadar.
- Wallace, Mick.
Amendments Nos. 5 to 10, inclusive, in the name of Deputy Wallace, are out of order.
I move amendment No. 11:
In page 18, between lines 9 and 10, to insert the following:
"(1) The existence of an attachment order shall—
(a) not be grounds for dismissal,
(b) prohibit discrimination in employment, including at the recruitment stage.".
This amendment deals with concerns that have been brought to the committee's attention by the Irish Congress of Trade Unions. Their concern is that an attachment order could potentially be grounds for dismissal by an employer or could prejudice an employee if he or she is applying for jobs in future. What we are trying to build into the legislation with this amendment is to ensure that this will not be the case.
When I raised this matter with the Minister, Deputy Shatter, at Committee Stage, he stated that it was not something he had thought about but he would consider it and consider amendments on Report Stage. He has not done that.
This is an important issue that the Irish Congress of Trade Unions has raised. There is no harm in adding this. It gives an in-built security for the person involved. I ask the Minister of State to consider it.
I thank Deputy Mac Lochlainn for raising this issue. I note he raised it on Committee Stage also. I will give him a full explanation and response to the point he made but I will begin by making two overall points.
The first overall point is that if such an issue needed to be dealt with, this is the wrong body of law within which to raise it. My advice is that to deal with the issue the Deputy raises, the relevant body of law that would need to be amended is equality law and law on the workplace and dismissal within it. The specific point the Deputy raises would need to be dealt with elsewhere than in this Bill because this legislation is not germane to the issue.
Second, as I understand it, the concern Deputy Mac Lochlainn raises is that if a fine was raised against somebody and he or she was not in a position to or did not want to pay, it could be used as grounds for dismissal or could be raised in the workplace. On foot of the Deputy's comment to the Minister on Committee Stage, the Department checked whether this had been raised as an issue in the recent past, and to date we do not have evidence that payment or non-payment of a fine has been used in a workplace or in employment law in the way the Deputy mentioned.
Overall, the two points I make are, first, that the issue the Deputy raises needs to be dealt with elsewhere in equality and workplace law, which would be the responsibility of the Minister for Jobs, Enterprise and Innovation, Deputy Bruton, and second, on the Deputy's point, we do not have evidence to date that this has occurred in a workplace and, therefore, do not currently believe it to be the issue that Deputy Mac Lochlainn does. At this stage we do not propose and are not able to accept his amendment.
I ask the Minister of State to move that the debate be adjourned.
I so move.
When will the debate reconvene?
It looks as though it will reconvene after the sos.
At what time will that be?
At 2.40 p.m.