Land and Conveyancing Law Reform Bill 2013: Report Stage

Before we begin, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to discussion on the amendment. Each amendment must be seconded on Report Stage. I welcome the Minister for Justice and Equality to the House.

I move amendment No. 1:

In page 6, between lines 7 and 8, to insert the following:

“Power of Court to determine the rejection of a proposal for a Personal Insolvency Arrangement as unreasonable

4.(1) Where in an application by a mortgagee for repossession of a property to which section 2(1) applies, a proposal for a Personal Insolvency Arrangement made pursuant to section 98(1)(c) of the Act of 2012 which included the debt of the property had been rejected by reason, in whole or in part, of a vote by the mortgagee at a creditors meeting held pursuant to section 109 of the Act of 2012, the Court shall, with the consent of the mortgagor, direct the Personal Insolvency Practitioner concerned to provide to it a report in writing which shall include the content of the proposal, and any amendments made thereto, for a Personal Insolvency Arrangement.

(2) The Personal Insolvency Practitioner shall cooperate in providing the written report to the Court within a period prescribed by the Court to be not more than 2 months. In making the report to the Court under this section the Personal Insolvency Practitioner shall provide an opinion as to whether the rejection by the mortgagee of the proposal for a Personal Insolvency Arrangement was reasonable.

(3) In providing an opinion pursuant to subsection (2) the Personal Insolvency Practitioner shall have regard to whether the proposal of a Personal Insolvency Arrangement constituted an offer to repay an amount, whether on a restructured basis or not, equal to the current value of the property and any other matter considered relevant by the Personal Insolvency Practitioner having regard to his or her experience in the proposing of Personal Insolvency Arrangements.

(4) The Court on receipt of the written report from the Personal Insolvency Practitioner shall cause to be made available to the mortgagor and to the mortgagee a copy of the report and shall provide a reasonable period of time for any response in writing to be provided by either party such period not to exceed one month.

(5) On receipt of any response provided by the parties the Court shall proceed to fix a date of a hearing for the purposes of determination by the Court of the reasonableness or unreasonableness of the rejection by the mortgagee of the mortgagor’s proposal for a Personal Insolvency Arrangement.

(6) Any creditor being the subject of the proposal for the Personal Insolvency Arrangement shall be notified in advance of the hearing and shall, on request, be provided with a copy of the report of the Personal Insolvency Practitioner and any responses provided by the mortgagee or mortgagor and shall be entitled to make submissions at the hearing under this section.

(7) In determining whether or not the rejection of the proposal for a Personal Insolvency Arrangement was reasonable or unreasonable the Court may have regard to the following matters:

(a) the report of the Personal Insolvency Practitioner and any responses received by the mortgagee or mortgagor;

(b) the submissions of any creditor;

(c) whether the proposal of the Personal Insolvency Arrangement constituted an offer to repay an amount, whether on a restructured basis or not, equal to the current

value of the mortgaged property;

(d) the housing needs of the mortgagor and his or her dependants;

(e) the conduct of both parties including the conduct of the mortgagee in underwriting the loan/s secured by the mortgage;

(f) any other circumstances or matters that the Court considers relevant.

(8) If the Court determines that the mortgagee’s rejection of the proposal for a Personal Insolvency Arrangement was unreasonable the Court may do any one or more of the

following:

(a) adjourn the application for repossession for such time as is necessary to enable the mortgagor make another proposal for a Personal Insolvency Arrangement and

for a vote on such proposal to be taken pursuant to section 109 of the Act of 2012;

(b) stay the coming into effect of the Order of repossession for a period not exceeding 24 months;

(c) without prejudice to the Courts discretion as to any order for costs it might make order that the mortgagee pay the costs or part costs of and incidental to the following, such costs to include the reasonable costs of the Personal Insolvency Practitioner:

(i) the making of the proposal for a Personal Insolvency Arrangement;

(ii) the application for the Order of repossession;

(iii) the hearing under this section.

(9) A copy of the Personal Insolvency Practitioner’s report together with any responses received and any Order made under this section shall be provided to the Insolvency

Service of Ireland.”.

It is shameful that we are here, giving the banks this power. The officials can have any opinion they want; their houses will not be repossessed. Thousands of people are in a position where the bank cannot effectively repossess their property today, but can do so tomorrow. The door is literally opening and this is completely unfair.

The amendment we are proposing tries to go some way towards remedying a defect in the law before the Dunne judgment, which was well recognised in conveyancing textbooks but which has been ignored by the Government. It will provide some element of discretion to the court in respect of a repossession order. The reality is that when an application for repossession comes before the court, then before the Dunne judgment the court had no option but to grant the repossession. It had no discretion whatsoever and this was recognised as a major problem with the law. This Bill does not provide any discretion to the court, other than to look for a personal insolvency arrangement.

The purpose of our amendment is to enhance the discretion of the court and to give more of the benefit of the doubt to the homeowner and more delay for the homeowner. Delaying repossessions is a very important part of the strategy while hundreds of thousands of people remain out of work. When there is full employment and people are able to pay their mortgages, we can have a repossession situation, but until then we have to stop the banks from doing this. We are giving this Bill to the banks and there is absolutely nothing in return. If there was something in return, perhaps we could support it.

Billions have been given over to the banks by both Governments on behalf of the people. Repossessions were halted following the Dunne judgment and through the code of conduct on mortgage arrears during the lifetime of the last Government. What has this Government done for mortgage holders? It has created the personal insolvency legislation in so far as it goes, but it has cut back on the code of conduct put in by the last Government and it has published this Bill. It is an absolute outrage, and this limited amendment is essential to give some discretion to the court and to give some relief to the homeowner to take away some of the power from the banks that the Government seems determined to give them.

I second the amendment. It is safe to say that the Government is going to give away its biggest stick with which to beat the banks, which would make them do what we all apparently believe they should do. Senator Byrne mentioned the revised code of conduct on mortgage arrears. I have tried every day in the past two weeks to get a response from the Minister for Finance as to why the Government approved the new code of conduct on mortgage arrears, which removes any protection that mortgage holders have. It effectively means that the banks will be able to move on individuals and remove the protection on contacts and various other issues. Only yesterday I got a response from the Leader of the House, which effectively stated that the Central Bank is independent from Government. Did the Cabinet approve the new code of conduct on mortgage arrears? What input did the Department and the Minister for Finance have into the new code of conduct? We were told previously that this was waiting for the approval of the Minister for Finance. I am aware that Deputy Shatter is not the Minister for Finance, but he is a senior member of the Government and both Ministries are related. This Bill, proposed by the Minister for Justice and Equality, will close the loophole which inhibited the banks from moving on repossessions.

I have read several cases into the record of individuals whose applications have been refused by the banks' own appeals committee. These are principal private residences. These are people who have families. These are not investors. These are not developers. These are normal Irish citizens who are paying every month to ensure we have a banking system and who expected more back from that system. We have no insolvency set-up. There is no way to track the conversion rates in respect of the banks' own solutions, and the Government has decided not to put in any definition of a sustainable mortgage. It has not set any limits for 35% to 40% of net take-home pay, which would be the mortgage payment, and it has failed miserably in respect of the one solution which I think will work, namely, split mortgages. The banks have approved 144 split mortgages out of over 142,000 mortgages in arrears.

Our amendment simply requests that should a decision be made through a personal insolvency arrangement, the court can determine that to be unreasonable. The amendment will give power to the court to state that.

This is in the absence of the Minister and the Government agreeing to the establishment of an independent debt settlement office. What they are still doing today is closing the loophole but giving all the power to the banks.

I have heard the Minister on the record, including in this House, and know he personally put a lot of work into the Personal Insolvency Bill, as did his officials. However, what he should have done was to allow this to happen and then see how the banks would manage it. The Minister said that if the banks did not manage it, he would come back with further legislation. I put it to him that the best thing to do with the banks was to use the Dunne judgment as the stick, and to say he would not bring in the Land and Conveyancing Law Reform Bill 2013 until he actually saw the colour of their money, saw they had done 14,000 or 15,000 split mortgages and saw they were actually playing ball with citizens. He should have held back on this. Instead, what has he done? He has introduced a new code of conduct on mortgage arrears that is open season on mortgage holders and he is closing the last protection by way of a legal loophole for mortgage holders.

I would love to know what advice the Minister and his Department have been given in this regard, and what protection he believes will be in place for distressed mortgage holders should this Bill be passed. We are talking about people's homes. I do not see where this will get us. Only 78 personal insolvency practitioners were registered as of last week, all private individuals and some of them with the "Big Five". How in God's name will we even be able to process this with just 78 practitioners? If one considers the cost of a personal insolvency practitioner presenting a plan to the court, who is going to do that without being assured he or she will be paid? What mechanism will the Minister put in place to ensure they are paid? Will there be a promise to pay? I believe the banks should underwrite the Bill. Has the Minister dealt with the VAT issue in this regard?

I believe this amendment is worthy of being accepted because, at least, it provides a safety net. It does not give the banks the full power in this regard and gives power back to the courts. What the Minister is outlining here is a definitive and clear timeline for banks to repossess properties after 60 days. That is what the legislation means. After 60 days, they can move straight ahead to a repossession order. I cannot fathom why the Minister is doing this. If he is going to hide behind the personal insolvency legislation and say that is going to be the panacea for all our ills, I put to him that it is not.

With regard to the Bill before us, I wonder what contact the Minister's Department has had with the banks and lenders, and what submissions they made on this legislation. As the Minister personally responsible for this legislation, is he confident we will not see a wholesale issuing of repossession orders under this Bill, when enacted? I put to him that we will. I suggest that by the end of this year, should this be signed into law, we will see some lenders move immediately because the Minister has given no protection to people. Furthermore, this removes any incentive from those lenders which no longer operate here as a lending institution, for example, some of the sub-prime lenders and those who have bought loan books at a discount. They will move immediately to repossess because it is cheaper for them to repossess than to go with any other apparent solution that has been put forward. What incentive will there be for those like Start Mortgages, Pepper and others, which are not lending into the economy and not active in the mortgage market, to come up with real solutions? There is no incentive. When the Minister passes this Bill, the easiest thing for any company that bought a loan book at a discount is to move ahead and to repossess the property. That is clearly what will be done.

I ask the Minister to look in detail at the amendments which we have tabled in good faith. These would mean that determinations made in a personal insolvency arrangement can be effectively overturned or stayed by the court. I do not see why the Minister would not do that. We would rather that he introduced a debt settlement office and not take up the time of the courts with these issues, but the Government has refused that at every hand's turn. Furthermore, I would ask whether the Minister's Department and the Department of Finance get regular updates from the pillar banks in particular, and specifically AIB, which has set targets to talk and engage with 4,000 of its customers a month. How do the Departments track what a resolution is? If the banks claim they have dealt with 4,000 people in the last two months, does this mean a resolution is a request for a voluntary sale? Yes, it is. Is a resolution a request to hand over the keys? Yes, it is. They are resolutions, or at least they are what the banks will see as resolutions.

While I do not think the Minister will do it, it is not too late for him to withdraw this legislation. He is giving away the biggest stick he has to hold over the banks in terms of saying that, unless they play ball, we will not enact this legislation. The Minister should hold off on this and give them a year to report back as to how many split mortgages and other arrangements they have put in place. Then, if they are moving along, it is fine. However, I wonder how cumbersome it will be for the Minister to do what he said he would do if the banks do not act under the Personal Insolvency Act, as he believes they will but as I believe they will not. How cumbersome will it be for the Minister to come back and afford the protection to mortgage holders that he is removing here today?

I say to my colleagues on the Government side that this is exactly what they are doing this evening by voting for this Bill. They are removing the protection to householders and closing the loophole. They are doing that in the context of this House not having been allowed to even discuss the new code of conduct on mortgage arrears and to get responses from the Minister for Finance, Deputy Noonan, as to why the new code of conduct is preferable. I will tell the House why it is preferable, namely, because the banks looked for it. At this stage, both the Department of Justice and Equality and the Department of Finance are complicit in ensuring that the banks become profitable again at any price.

I hope I am wrong. I will tell the Minister to his face I am wrong if, in 12 months' time, we have not seen a massive increase in repossession orders being granted. I will say it to the Minister straight. Unfortunately, the Minister, by producing and trying to pass this Bill, is now complicit in opening up the opportunity for the banks to repossess family homes. I honestly cannot understand it. I would love to hear the Minister's response to this, and his response as to why he is not going to accept this amendment, which at least affords some protection and some independent oversight of this process.

Let us remember that under the Minister's Personal Insolvency Act, the banks have a full veto in that 70% have to agree, whereas, for most people, 70% of their debt would be their mortgage. Therefore, if the lender does not agree to the personal insolvency arrangement put forward, it does not happen. The Minister said that the banks will know a person can opt for bankruptcy under the new three-year rule. Does anyone know what bankruptcy really means to individuals? It is the nuclear button. It is not a solution for people to give up everything they have. Where is the solution? This beggars belief.

As I said, the Minister is giving away his last bargaining chip. He is going against everything in the programme for Government and everything that was said prior to the general election. What this is about is simply making the banks profitable and selling them on at the expense of the people and homeowners. With regard to lenders which have loan books in this market but which have exited the market and are only managing the loan books, what incentive is there for them to operate with any of the initiatives the Minister has brought forward? There is none. What this Bill does is to make sure they will move on repossessions.

I want the Minister to give a commitment today, 16 July 2013, that on 16 July next year he will come into this House and provide an update on the level of repossessions on all homes, including principal private residences, buy-to-lets and all other homes.

Will the Minister give a commitment to return in 12 months? I will apologise to him then if I am wrong, but I very much doubt I will be. We are going to see a massive increase in attempts by lending institutions to take properties from homeowners because in proposing this legislation the Minister is giving them the easiest option. I see no reason for it.

Although I commend the logic of the Fianna Fáil amendment, I liken it to putting an Elastoplast on the hull of Titanic as it went down. The mortgage crisis is much bigger than this Government admits. Listening to the debates on this Bill I get a sense that the Government is totally out of touch with the mortgage crisis, the 190,000 households that are in mortgage distress, the one in four residential mortgage-holders who are unable to meet their repayments. This will certainly not help that scenario. We see this Government following the flawed policy of the previous one, backing up the banks and giving them all the powers to which Senator Darragh O'Brien alluded. It is hard, therefore, to take the crocodile tears of Fianna Fáil on this issue when it created the bubble and the crisis and is now making atonement by proposing an amendment to this Bill. Our stance, as it has been at every Stage of the Bill, will be to oppose it. It is plainly an eviction charter with one simple purpose, namely, to empower the banks to take over people's family homes. Sinn Féin will not stand over that. We will not support this Bill, and although we appreciate the logic behind the amendment, I do not believe it will help at all.

I welcome the people in the Visitors Gallery, particularly the members of Threshold national housing organisation who have a particular interest in this Bill.

In my Second Stage speech I suggested that the provisions of this Bill which allow the Minister to delay its implementation should be exercised by him in view of a number of matters. I refer in particular to the revised mortgage arrears resolution process, or MARP, with which I have severe difficulty, as members of both Government and Opposition know, given the powers it gives to the financial institutions. The personal insolvency legislation and its allied service are only getting off the ground and there is a significant issue among members of the general public as to how they see that evolving. There is, therefore, a need for a period of six to 12 months in which a certain amount of washing out could take place in that regard. As to the MARP solutions that have been bought into by the Government, with the Central Bank, it is very important that members of the public see how these targets will affect them. I agree with my colleague on the Opposition side that there is an enormous level of uncertainty among the general public as to how this particular legislation will be interpreted.

As I said to the Minister on a previous occasion, I am also very conscious of the fact there is a pick-up in the housing market. There is a serious view, held among both commentators and the general public, that there is a malevolence within banking institutions. They are looking at borrowers who have equity in their homes and waiting for the market to rise in order that they can seize houses whose mortgage situations they have been sitting on for the past three or four years and bring them to some kind of conclusion. I have serious reservations about the mortgage resolution process. The idea that in the absence of any independent veto the lender is the one that determines whether a mortgage is affordable for a borrower is unacceptable. The fact that a borrower can access the insolvency process by demonstrating that he or she has engaged with the MARP is something that could lead to severe abuse within the banking system.

The fact is that the people of Ireland do not trust the banks. We can try to gloss over this and walk away from it. As a member of a Government party, I admit this is something the Government must recognise. We have lost faith and confidence in the banking system. When I was 14 years of age my parents brought me into the National Bank premises in Terenure and I opened a bank account with Bank of Ireland, where I have banked ever since. There are many people in this country who have done exactly the same. They believed in and trusted in the banking system and had huge confidence that banks and their bank managers would advise them what was the best thing to do and whether they should do this or that. When somebody sold them a product, told them they could have a mortgage or that such and such was the right thing to do, they believed it. Unfortunately, as with Aladdin and his magic carpet, that has been completely removed. The people no longer trust the banking system in this country.

I know why this legislation is being introduced but I ask the Minister to hold off because I do not believe the people trust the banking system. Until they do, and until they trust us as a Government to do what is right for them, I do not believe the legislation should be introduced. I have been told there is one lending institution that has 4,600 orders for possession ready to rock and roll - I do not know how true that is. I fully understand it may not be the case, but that is the perception among the public. We have to understand that public perception is important, for example, in the housing and mortgage markets. Crucially, it is important for the perception of people in the country who are in enormous distress about what we as a Government are prepared to do.

Yesterday I was told by a person who was bidding for a property, albeit in south County Dublin, that the price quoted was €100,000 more than the property two doors up had sold for less than 12 months ago. We have to accept that the mortgage and housing markets have changed dramatically. Twelve, 24 or 36 months ago, lending institutions in this country would not engage with borrowers. Today I reviewed the file of a woman who is in a life-threatening situation after 96 doses of chemotherapy. Everybody in this House will have had similar experiences. This woman is dealing with a major lending institution and I reviewed her file today, not one, three or six months ago. It was not a pretty sight. She has had a number of letters from one financial institution which has failed entirely to engage with her on numerous occasions. I point out to the Minister that as a qualified solicitor I am capable of reading a file. I know when something is dressed up for public consumption. The way that lending institution has behaved is an utter disgrace. That is the best way I can describe it.

I am very well aware of the can't-pay-won't-pay scenario and the fact that we are paying for those people who walk off into the sunset, are having foreign holidays, are living here and there and will not pay their debts. However, in my experience the vast majority of people in this country do their absolute best. Irish people value the family home.

Going back to the land wars and all the way through Irish history, the home is so important to Irish people. John B. Keane wrote The Field and it is a bit of a cliché but the truth is that it matters to Irish people. They do not default easily.

I will not support the Fianna Fáil amendment, although that does not mean I do not have sympathy with it, as I do. The Minister has the option of delaying the implementation of this legislation and I want to see how the personal insolvency legislation is playing out. I want the Irish people to have confidence in the matter. I have praised the Minister on many occasions for the introduction of the legislation, which is groundbreaking. To be fair to our colleagues on the other side, they did not propose an equivalent.

We did. We proposed our own Bill before this one from the Government.

I do not want to get into it.

It had an independent debt settlement body.

I started the speech by saying I would not get into the blame game.

I know but the Senator made an assertion.

I will deal with the here and now.

I respectfully corrected that assertion. I respect everything the Senator has said.

The Senator's party had many opportunities while in government but it did not get to it.

Unfortunately, Senator Hayden used the word "speech" but this is Report Stage.

I understand that. I have one opportunity to speak and will take it. We must all agree and move on in this regard. As I have already said, I am a solicitor and I understand the need for a functioning mortgage and banking market but there must also be confidence in the system, which there is not at this time. There is no confidence in the banking system or insolvency regime because it has not yet had a chance to play out. There is no confidence in the mortgage arrears resolution process. The Minister, of all people, is open-minded.

The Free Legal Advice Centres, FLAC, have made a number of submissions outlining reservations about the new mortgage arrears resolution process. I sat in the House the day before yesterday when we were told this is a matter for the Central Bank and not the Minister for Finance but I understood there is a high-level Government group engaged with this process. I cannot understand why the Minister for Finance is fobbing this off on the Central Bank. Of course the mortgage arrears resolution process is a matter for the Central Bank but where is the high-level group that is supposed to be engaging with this and in which we are meant to put our trust? I want to see something more coming from the Government with the issue.

A comment was made by colleagues in government about independent advice. To my mind one of the biggest problems we are dealing with in the system and a reason for the lack of confidence in what is proposed is the lack of any real, sustainable and expert advice available to somebody in mortgage arrears. For this reason there must be a veto option. The Money Advice and Budgeting Service, MABS, is a wonderful organisation but it is national and its product is variable, as resources are not sufficient for a distressed borrower who must approach a lender offering a debt solution or even before that point. Such a lender does not have anybody to bat for them who has legal advice and accountancy expertise. Where is the person to put the lender in the same ring with the lender?

When I studied law I was taught about a contra proferentum rule, meaning the rules should be interpreted against the person making the rules. I do not see that in what is being proposed here, and where is the facility to put the distressed borrower on an equal footing with the person offering the solution? The lender cannot refuse the solution and when a lender appeals against a solution, it is done within the process offered by the bank that is giving the solution. There is a real issue in terms of a veto.

I appreciate that the Minister has in good faith indicated that if we find the legislation is not working, he will go back to the drawing board. Nevertheless, I am very much aware that I am dealing with a number of people who are receiving letters from a bank telling them they are not engaging and repossession proceedings will commence but at the same time the people in question have a stack of correspondence from the bank indicating they are trying to achieve an outcome. We are not putting the people in mortgage arrears on the same playing field as they ought to be with a lending institution.

In the legislation there is mention of the principal private residence, with judges having the opportunity to agree that a personal insolvency practitioner should be brought in to examine the issue. There is a fundamental flaw in that as if the lender is unwilling to engage, how will there be any significant difference? Ultimately, this goes back to a bank veto. I appreciate that the Minister has left an open door and indicated a willingness to re-engage on the matter. There is a problem nonetheless and we must accept that ultimately this is about confidence. I would personally like to see a debt settlement office and an independent person that disgruntled borrowers or lender can see in that regard, with all of what was proposed being discussed. There could be a judgment from the office.

I do not agree with the opinion from the Opposition that the courts should decide this issue. I made the point with regard to Senator MacSharry's Bill that we do not want more judicial engagement and we want fewer court settlements. I agree that the personal insolvency legislation goes down that track. There should be somebody to indicate whether a personal insolvency practitioner formulates a very good solution and this should be put to somebody who can give a judgment that is not from the court. There is an idea that a lending institution - which might hold all the debt for an individual - does not have to deal with the matter.

I remind Senators that this is Report Stage and we have already had Second Stage speeches.

I intend to be brief as the Minister is a busy man. I have much sympathy with the proposed amendment but I appeal to people to work with the Minister in this regard. He would not be bringing in this legislation at this time unless he felt it necessary. There is a massive legislative programme but this legislation is a priority. The Government is effectively trying to micro-manage banks as much as possible, and although I am not saying it is a carrot and stick approach, in order for the economy to work we must have a working banking system. Nevertheless, we cannot let banks get away with doing whatever they wish. Unfortunately, we find ourselves in this position because of the recklessness of banks over the years, and although it is regrettable, we are not unique in that sense, and the issue has manifested in other parts of the world as well.

The Minister has made it clear that if this legislation does not work, he will return to replace or amend it. The best counsel at this stage is to go with the Minister's legislation and enact it, thereby enabling us to at least take another baby step in the reconstruction of banking and the economy.

I thank the Senators for their contributions. We all agree that the repossession of any home should be a last resort. We have enacted the insolvency legislation which provides various mechanisms to assist people in financial difficulty, including the personal insolvency arrangement designed to resolve the debts of individuals or families with their creditors. These arrangements may involve debt forbearance or forgiveness.

I have to take the mock outrage of Fianna Fáil Senators with a grain of salt. In the 14 years Fianna Fáil was in government, it did not reform the insolvency legislation or make a suggestion for alternative debt resolution processes.

We actually brought forward a Bill.

It has no concern about how light touch regulation helped to seduce tens of thousands of young couples into borrowing way beyond their means and the banks facilitated such borrowings. There was a complete and utter failure to maintain regulatory oversight of the banks. Then, when confronted with a banking disaster, it was paralysed and failed to address any of the issues the Government has been dealing with for the past two and a half years. Will its Senators, please, save their mock outrage because not too many people outside this House believe it?

That is outrageous.

It is outrageous because the Government has done nothing for people but hand more power to the banks.

The word “outrage” is becoming a seriously devalued currency in the hands of Fianna Fáil whose Members seem to be permanently outraged on a broad range of issues.

On a point of order, the Minister claims our outrage is mock and that we do not care, even though we have brought forward Bills to resolve the mortgage crisis.

That is not a point of order.

That is an outrageous statement for the Minister to make and I ask him to withdraw it.

The Senator has had his opportunity.

I have heard the Minister at it before.

Those comments do nothing to help the people who are about to have their homes repossessed. The Bill will do that very thing.

The Minister to continue, without interruption.

I will not have a charge like that made against my colleagues. It is an outrageous charge. The Minister has been a Member for a long time and should know better.

I did not interrupt either Senator. Instead, I listened quietly to their contributions.

We stuck to the Bill.

Senator Thomas Byrne said that before the Dunne judgment, the courts had no discretion not to order repossessions. That judgment was made in 2011. In 2009, when Fianna Fáil was in government, the Land and Conveyancing Law Reform Act was passed, but it contained no provision to prevent repossessions. The Senator has accepted that when Fianna Fáil introduced the legislation, it was its intention that the courts, when faced with an application for repossession of a family home, would grant orders. There was no provision contained in that legislation-----

We drafted a Bill to deal with that issue when we went into opposition.

The Minister to continue, without interruption.

There was no provision such as is contained in this Bill that would allow the courts to adjourn proceedings where an application for repossession was made and to afford a period to an indebted individual at risk of losing his or her home to engage with a personal insolvency practitioner with the possibility of concluding a personal insolvency arrangement. Neither had Fianna Fáil enacted personal insolvency legislation.

We must not lose sight of reality. The law, as it had applied for centuries, was that if a person failed to pay his or her mortgage, the financial institution could seek an order for repossession. When the Land and Conveyancing Law Reform Act was introduced, it was the then Fianna Fáil Government’s intention that it would preserve this as the law. The Dunne judgment raised issues about certain mortgages and the type of procedures that could be used to repossess. There have been subsequent judgments which have watered down the impact of the Dunne judgment which is also on appeal to the Supreme Court. It is quite possible that if we did not enact this legislation a Supreme Court appeal could take a different view from the Dunne judgment, resulting in no protection for homeowners and with no possibility of adjourning proceedings to consider a personal insolvency arrangement. In short, the law would revert to what it had been for the previous two centuries.

This legislation is ensuring normal relationships between customers and banks. If one does not make repayments on a loan for the purchase of property from a financial institution, that institution can bring proceedings to seek repossession. The personal insolvency legislation which we introduced will be in operation before this Bill comes into force. The benefit of this is that in a repossession application, if the judge believes a personal insolvency arrangement can be entered into, there will not be an automatic order for repossession.

Several Members raised the issue of financial institutions not co-operating in such arrangements. The new code of conduct, with independent oversight by the Central Bank, requires banks to finally address the plight of the tens of thousands who are in serious mortgage difficulties. In the past two years there have been minimal repossessions. Over 70,000 individuals have made temporary, short-term forbearance arrangements with their bank. It is not that any of us wants to see repossessions, but there have been extraordinarily few repossessions in the State, considering the overall background circumstances. Why is that? The previous code of conduct effectively put a block on banks rushing to the courts to look for repossessions and required them to engage. The engagement we have had substantially to date has been by way of debt forbearance and there has been very little by way of debt forgiveness in circumstances where it may be the only feasible option. We need to have a coherent set of laws. We cannot have individuals with mortgages from before 2009 simply deciding they will not repay them when they can do so and the banks being blocked from bringing repossession proceedings against them. We must ensure the financial institutions behave reasonably. There is Central Bank oversight of the new code of conduct.

Senator Darragh O’Brien challenged me to come back next year to inform the House of the position on repossessions. I am surprised that he has not noticed that under the new Central Bank code of conduct, there will be quarterly publications on repossessions and the progress the banks are making in debt resolution.

The arrangements put in place by the Central Bank are designed to require banks to enter into medium to long-term arrangements to facilitate individuals in addressing their debt issues, where possible, not just short-term arrangements which involve kicking the can up the road. In that context, there will be transparency, which is important.

I have constantly referred to a particular provision in the legislation about seeking adjournments. Under section 2(3)(d), one of the issues to which a court must have regard in deciding whether to adjourn an application for repossession is "the conduct of the parties to the mortgage in any attempt to find a resolution to the issue of dealing with arrears of payments due on foot of the mortgage;". Quite clearly, if someone in mortgage debt and financial difficulties is able to tell a court, where a repossession order is sought, that he or she is in a position to make a repayment that a court may regard as reasonable but the financial institution has refused to engage, the judge will adjourn the proceedings to enable a personal insolvency practitioner to try to effect that engagement. The personal insolvency practitioner can assess the practicality of a personal insolvency arrangement being entered into and even before engaging with the financial institution, an application can be made for a further adjournment under section 2(4) which states "...the court may grant a further adjournment of the proceedings concerned where it considers that significant progress has been made in the preparation of a proposal for a Personal Insolvency Arrangement".

When the Bill is enacted, there will be a court architecture that was never in place for repossession proceedings built in to our law to provide protection for those who over a period of time have some prospect of resolving their financial difficulties. No economy or banking system can survive in circumstances where large sums of money are owed to a financial institution, individuals are making no payments of any description, there is no prospect of their ever making any payment, and the banking institution cannot take security for their payments. No economy can survive in that way. Do the Fianna Fáil Senators want to create a situation where taxpayers must put even more money into the banking system?

No. The Minister should define "sustainable".

This is not an issue that can be dealt with in isolation. It impacts on all taxpayers.

The Minister is being disingenuous.

It impacts on all individuals in financial difficulties and the functioning of the banking and financial system. Ultimately, these are issues that must be addressed in a comprehensive and coherent way, not simply by looking in isolation at one aspect of the problem which some speakers have sought to do.

Like everyone else, I want to see as few people as possible confronted by repossession. As I quote the statistic from the Courts Service Board's annual report for 2012 from memory, I may be slightly out, but I think there were between 430 and 440 repossession orders made in 2012, which is fewer than the number made in 2011, which in the circumstances is quite extraordinary. It is right to acknowledge that in the absence of legislation and with the old Land and Conveyancing Act where banks have failed to engage properly, the Judiciary has adjourned proceedings. It is not in a position to adjourn for the purposes of a personal insolvency arrangement, but there have been cases where proceedings have been adjourned and judges have exercised their discretion, either to refuse or delay the making of repossession orders. Now we will have an important new legislative structure which will be to the benefit of those who have some prospect of working their way through their financial circumstances.

I am conscious that much of the debate we have had is not so much about the issue of this Bill but comes back to the insolvency legislation that we have already enacted. The amendment refers to something I have consistently opposed since it was first tabled in the other House. It was first tabled as amendment No. 9 in the other House where I said: "I cannot accept amendment No. 9 for a number of reasons. The amendment seeks to rewrite provisions of the Personal Insolvency Act, which is not the purpose of this Bill. Overall, the amendment is poorly drafted, confused or somewhat disingenuous as to its intentions and is not acceptable." That is the main fundamental flaw in the amendment; it does not seek to improve on the provisions contained in the Bill but rather seeks to rewrite the Personal Insolvency Act.

I shall summarise the difficulties with the amendment once again. First, the protection for a mortgagor provided for in section 2 of the Bill is to require that the court allow for a personal insolvency arrangement to be considered where, for example, none previously had been attempted, as with the requirement now in the case of bankruptcy petitions. The proposed amendment would, in effect, go beyond that protection and essentially provide that the court should direct a first or a new personal insolvency arrangement and effectively determine its outcome. The amendment would not simply be providing protection but effectively asking the court to direct that a personal insolvency arrangement be concluded. This is a basic misreading of the personal insolvency legislation. Senators should remember that, once a personal insolvency arrangement proposal has been rejected by the creditors' meeting and no subsequent proposal is made during the protective certificate period, the personal insolvency practitioner's role ends as a mediator or negotiator for the debtor. Where a proposal is rejected at a creditors' meeting and where the protective certificate period still applies, there is a possibility of a personal insolvency practitioner making a further or different proposal that creditors might accept if they did not accept the first one. Therefore, once a proposal has been rejected and where there is no other proposal that can properly be made within the timeframe, the personal insolvency practitioner has no standing whatsoever in the repossession process and the law does not provide for the court to appoint him or her as an officer essentially to force a settlement on creditors as such a practitioner cannot do this.

Second, the amendment ignores the fact that the personal insolvency legislation is designed to allow agreed settlements to be reached as an alternative to court-ordered settlements. I am conscious of the comment that we do not want courts unnecessarily involved, but we would like some other person to deliver a judgment which will be referred to as a settlement. It is either a judgment or a settlement. One cannot have both. Under the Constitution, the only body that can deliver judgments in areas such as this is a court. To appoint any single other individual, no matter what one calls him or her, effectively to adjudicate on whether a home should be repossessed would be to supplant the role of the courts in a fundamentally important matter and the Attorney General would certainly not stand over this, based on the advice we have received. In the context of the amendment, it is my view that it would overturn this carefully calibrated approach contained in the Personal Insolvency Act. The proposed provision that a personal insolvency arrangement proposal should only offer to repay the current value of a property would represent a huge interference in contractual and property rights and would be likely to be subject to swift challenge in the courts.

Third, the amendment makes no reference to the repayment capacity of the debtor, which it seems would essentially be determined by the current value of the property. This would have obvious negative consequences for banks, other financial institutions and, ultimately, the taxpayer.

Fourth, the amendment could encourage delinquent behaviour on the part of all debtors, nearly 90% of whom are repaying their mortgages, in order to have their mortgages reduced to the current value of the property. This would seriously risk a complete collapse of the property market and threaten the solvency of financial institutions and the economy. This issue cannot be addressed in isolation. There is a connection between a whole range of areas of substantial importance and it is far too simplistic to make the case that one can deal with the matter in isolation.

I consider that the amendment would run the risk of turning every proposal for a personal insolvency arrangement into a costly preliminary to repossession. That is neither the intent nor the purpose of the legislation.

I appreciate the concerns Senators are expressing. We are all on one page on one issue. I do not want to see any individual or family evicted from his or her or their home. I do not want to see any repossession order made in any circumstance where, with a reasonable engagement, having regard to the overall financial background over time an individual could be facilitated to work his or her way through his or her debt difficulties and get his or her feet back on the ground and move on with his or her life.

We cannot have in place a law that creates an absolute obstacle to banks properly relying on the security they obtained when loans were offered. We can ensure we have a legal architecture that allows every possible avenue to be explored such as possible alternatives through a personal insolvency arrangement to facilitate individuals or an individual and his family to remain in the family home and to avoid a repossession order even up to the time when the court may be asked to consider repossession.

I imagine colleagues are disappointed that the Minister seems to have completely ignored the good points put forward by Senator Hayden, who does not agree with us on this amendment. Senator Hayden has considerable experience in this field and has been helpful to us when we tabled the Family Home Bill 2011, almost two years ago to the day. It is disappointing that this issue has not been addressed. Senator Hayden made a valid point that if the Government wants to plough ahead with this legislation, it should at least wait and see how the architecture of the personal insolvency legislation works before the banks will have the powers under this Bill conferred on them. The court will have minimal discretion. Once the bank makes the application, there is a particular destination that the train is going to.

Colleagues have spoken at length on the various issues and have made helpful contributions to the debate. In fairness, the Minister has not contradicted their arguments very effectively. The Minister in mentioning the code of conduct for mortgage arrears acknowledged the code came into effect under the previous Government and has helped in conjunction with the Dunne judgment to slow down the train of repossessions. I would make the assertion that we have serious problems with the personal insolvency legislation and acknowledge that it is good in so far as it goes and it goes some way. Nothing was put forward by the Government in terms of helping those in mortgage arrears. The expert group on mortgage arrears met in 2010 and I met them in September 2010, from which came the code of conduct for mortgage arrears, which has served us well. As the Minister rightly says it provides forbearance and gives people a break until the economy turns. We are pleading for a break for people in trouble. The Minister is not doing enough to dispel their significant fears.

One of the difficulties with the Bill is that it is a gift to all of the banks. Every single bank who is owed money on foot of a mortgage will benefit from it but not every single bank which is owed money on foot of a mortgage is subject to the code of conduct on mortgage arrears or subject to Central Bank supervision. That is a real imbalance that has not been properly addressed by anybody. A person with a mortgage from Irish Nationwide Building Society, Bank of Scotland or Ulster Bank, which is present but has the option to move to the United Kingdom, is not covered by the protections under the code of conduct of mortgage arrears in so far as they go and which have been reduced by the Government, yet all of the banks, without exception, have the power to repossess. That is typical of the imbalance in the Government's approach towards the banks and the borrowers.

I reiterate the point made by Senator Hayden who said the Minister for Finance has washed his hands of the code of conduct and of bank supervision. The reality is the code of conduct is drawn up by the Central Bank in consultation with the Minister for Finance and there is a statutory obligation on the bank under the Central Bank Act to consult the Minister for Fiance. It would be interesting to see what the Minister for Finance said to the Central Bank when they reduced the protections to people. Was the Minister happy to agree with the Central Bank which is also bringing in repossessions? We do not know and the Minister has refused to answer the question on it, even though he was centrally involved in the process under the statute.

The issue of strategic default was mentioned, but I have yet to see evidence from anybody as to the level of it. It might be 2% somebody else could say it is 20%. We will not know until we have evidence of the level of strategic default in the country. I do not think we should be discussed it. During the Second Stage debate, it was alleged that I was trying to protect a person who was not paying his mortgage and was living in a mansions worth €3 million from being repossessed - a red herring, but the people who are worried about this Bill are not living in such mansions but in ordinary family homes. They are not in a position, through no fault of theirs, to pay a mortgage on their home which they could pay at some point.

The social consequence of repossession has never been discussed. What will happen to housing estates, in which the majority who live in it are in difficulties? We see the consequences of repossessions in certain parts of the United States, but I am not suggesting that it will be as widespread as that, but the power of the bank is without restrictions.

The Minister has said repossessions should be a last resort. I have no difficulty in the repossession of a commercial property that is lying idle and does not involve a family business from being sold on. That is normal market economics. I have seen the benefit of derelict properties, in which the owners had not been interested, being sold by the banks at auction and somebody else taking over. The market economy does not apply to the family home. It is not an economic decision to buy a home, it is a personal family decision to give the family security forever. The Irish have so jealously guarded their patch of land over time and when they did not own it themselves they still took action to protect it and keep it working for themselves. I know there are people in the Visitors Gallery - tribute has already been paid to those from Threshold - who work very hard on the issue of mortgages. People who obstructed the Allsops auction are also present. If I become aware of the repossession of a home of a family I knew I would certainly join those who obstruct such sales on the stage of Allsops. I am not predicting it in any way, but it would be unjust if it were to happen. The Minister states the repossession of the family home should be the last resort but there is nothing in the Bill to say that repossession will be the last resort.

The Minister criticised the 2009 Act. Mr. Lyle discusses the gap in discretion in his textbook. The Minister goes some way to give discretion but nowhere near far enough and he is sending it back into the personal insolvency process, back to the banks, back to the bank veto. Senator MacSharry and I put forward the Family Home Bill in conjunction with Mr. David Hall who is sitting in the Visitors Gallery and with some other voluntary groups in that sector to deal with that gap in the law. We have done our bit. The Bill was opposed by the Government, but some helpful suggestions were made at the time by Senator Hayden who has a very genuine interest in the matter. The reality of that debate two years ago was that the Minister of State, Deputy Brian Hayes, said he would return by the autumn with the answer to all the problems. It has not happened.

The previous Government had the expert group in September 2010 and that is effectively the action that was taken. The action was stayed up until the Personal Insolvency Act. The Keane report, which was a panic response to newspaper headlines, more or less recommended the same thing although there were a couple of changes. Nobody has grappled with the issue of the power being given to all the banks whereas protection is offered only by banks which are regulated by the Central Bank.

This is such an important issue that we must resist this. The Minister refers to trying to restore normal relations between banks and customers. There are no normal relations between banks and customers. The banks have benefited from the investment of billions of euro in taxpayers' money. Other bank have benefited from British and European taxpayer money also. That is not normal banking relations. We are not in a normal time. We are in an era of high unemployment. Nobody is blaming the Minister personally for this even though he keeps referring to Fianna Fáil. We have taken the hit but we see our job to be as constructive as possible. For that reason I have put forward a number of Bills, such as the Family Home Bill to deal with that criticism. We put forward a personal insolvency proposals, incorporating a debt settlement office.

It is not and cannot be the answer to give banks the power, but it would be of some benefit to the consumer and provide some protection for families and some hope for those who are in trouble. I will, therefore, certainly press the amendment. Although it has received criticism from Senator Trevor Ó Clochartaigh - one could call it a sticking plaster, as that is, effectively, what it would be - with the repossession gap opening, an Opposition party is trying to provide for a rebalancing between banks and homeowners in trouble.

Amendment put:
The Seanad divided: Tá, 17; Níl, 27.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Cullinane, David.
  • Daly, Mark.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • O'Brien, Darragh.
  • O'Donovan, Denis.
  • O'Sullivan, Ned.
  • Power, Averil.
  • Reilly, Kathryn.
  • van Turnhout, Jillian.
  • Walsh, Jim.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Clune, Deirdre.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Conway, Martin.
  • Cummins, Maurice.
  • Gilroy, John.
  • Harte, Jimmy.
  • Hayden, Aideen.
  • Healy Eames, Fidelma.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Kelly, John.
  • Landy, Denis.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Keeffe, Susan.
  • O'Neill, Pat.
  • Sheahan, Tom.
  • Whelan, John.
Tellers: Tá, Senators Ned O'Sullivan and Diarmuid Wilson; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.

I move amendment No. 2:

In page 6, between lines 7 and 8, to insert the following:

"4. Where the property which is being repossessed is the subject of a residential tenancy, the protections afforded to tenants under the Residential Tenancies Act 2004 shall be complied with by the financial receiver who shall comply with all obligations of landlords under that Act.".

Cuirim fáilte roimh an Aire ar ais go dtí an Teach. I welcome the Minister back to the House.

The purpose of the amendment that is proposed as section 4 is twofold. One is to protect a principal private residence where it is held as a tenancy and the other is to impose duties and obligations on financial receivers in common with other landlords.

I was worried that in the briefing document there was reference to the 0.3% repossession rate and to the need for a more efficient repossession regime, and talk of 3% and 5%. Like the Minister, I would look askance at such developments.

As the Minister will be aware, the rented sector has grown rapidly. I understand it is approximately one fifth of the market nationally, one quarter in Dublin and one third in Galway. In the last big boom year of 2007, apparently 78% of the 98,000 homes built were multiple units. They are rented, including quite a number in the south Dublin area.

The concern is that receivers are seeking vacant possession, in other words, the tenant bears the burden of having a bankrupt landlord. I seek that protection where this is a principal private residence, of which there were not so many in the past but of which there will be now. This was referred to on the last occasion and this would be normal in countries such as Switzerland and Germany where tenants do not face evictions simply because their landlord has gone broke and one simply pays the cheque to a different person. It is probably not a major issue in Ireland when there is such a traditional emphasis on owner-occupancy, but that is changing rapidly.

We want to protect those tenants and to impose the duty and obligation of being a landlord on the financial receiver. The reports that come back from agencies, such as Free Legal Aid Centres, FLAC, and New Beginning, are that financial receivers are seeking vacant possession and seeking to get rid of tenants.

Those are the two issues that I want to raise with the Minister in the context of a changing housing market where there is so much pressure on banks to realise these assets regardless of the sitting tenants for whom it is their principal private residence and the unwillingness of these financial receivers to accept the duties and obligations of maintaining a property which previous landlords had. That is all I have to say on it. That consideration can be taken into account unless the pressure is to make banks solvent again at the expense of sitting tenants, conduct which was not acceptable from previous landlords and complaints about those financial receivers. In general, I fear we will probably have to recapitalise the banks through the Department of Finance route in any case. On the evictions rate being increased, as the Minister stated, from 0.3% to 0.5%, like him, I am against evictions from homes. Some repossession architecture should apply to these tenants for whom it is their principal private residence.

I second this amendment. Senator Barrett put it well. For so long, there was an overemphasis on property ownership and owning one's own house. Those who are renting their principal private residence should not be penalised. They need to be secure in their homes. That is why my party supports this amendment. I hope the Minister can take it on board and can do something about it in this legislation.

I thank Senator Sean Barrett for tabling this amendment which raises a very important issue in the context of the Irish housing market. Those of us of a certain generation have grown up with this view that if one did not own a property in Ireland, or if one was not trying to buy one, one was nobody. The thinking was that rent was dead money and that anybody with half a brain would not rent, in spite of the fact that in far flung places, such as Germany and France, people rented for their entire lives.

A very influential report entitled, Private Rented - The Forgotten Sector, very much illustrated the fact that renting in Ireland from the beginning of the 20th century onwards was very much in decline and was regarded with almost malevolence and that the only people who rented were those who could not get into home ownership or social housing and that they were invariably single, people without children and men. That entire profile has completely changed in the past decade.

As Senator Barrett said, one in five families in Ireland rent today. In Dublin, one in three families rent which is also true of Galway and of all of our major urban centres. We are living in a new age - a different era - when renting is a long-term housing solution for many people and to treat them as if they were second class citizens is unacceptable.

I was very struck by the statement of Professor Patrick Honohan, Governor of the Central Bank of Ireland, that he would focus his entire attention on the buy-to-let mortgage market which will mean an end to those mortgages, that they will have to be repossessed and that he hoped there will be very few repossessions of owner-occupied family homes as if all of those people living in the buy-to-let property market were not families and that they did not live in family homes. A very significant number of Irish families live in rented properties. Their children go to local schools, they participate in the local GAA clubs and they are involved in local activities. These are their family homes and it is time to move on from pretending that we are living in the Ireland of the 1920s, 1930s and 1940s.

If the Minister cannot accept this amendment in its entirety, will he accept the spirit of it because, as I understand it from Senator Barrett, it is trying to put a family living in rented accommodation into a position of security? Under the Residential Tenancies Act 2004 which introduced security of tenure for tenants in the rented sector, albeit limited, anybody who steps into the role of a receiver or a mortgagee in possession should have to abide by the criteria of that Act and should have to step into the shoes of the landlord. It is only fair that someone who pays rent should be entitled to the services and so forth under the 2004 Act.

We have codes of conduct for people in arrears in regard to their principal private residences and how they should be treated. We also have codes of conduct on how banks are supposed to deal with repossessions and so forth but we have no codes of conduct on how banks and lenders are supposed to deal with tenants. It is almost as if we are dealing with - dare I say it as I do not want to go beyond the Pale here - Strumpet City in that these people do not matter as far as our lending institutions are concerned.

It is important to recognise the idea of home. It does not matter whether one lives in a principal private residence, social housing or rented housing. A home is a home and the way people are treated should reflect that. Will the Minister respect the spirit of Senator Barrett's amendment which is very well intentioned? He raises what I see as an incredibly important issue in the Ireland of today. Believe it or not, Ireland is not the country with the highest home ownership rate in Europe; it has fallen below the European norm in terms of home ownership. Ireland has changed and our laws must reflect this.

I support Senator Barrett's amendment. I am sure Members will agree that he is a tremendous addition to this House given his financial expertise. I also have the highest regard for Senator Aideen Hayden and always listen with interest to her contributions but I cannot fathom how accepting the spirit of this amendment will do anything for these hard-pressed tenants who could well be evicted from their houses or for the people who own those houses and who are having difficulty repaying the mortgages. As I read the Bill - the Minister can correct me if I am wrong - the powers will be with the banks to decide what they want to do.

Unfortunately, we will see a situation where the banks will repossess houses from people who cannot afford to pay the high mortgages because of the excessive prices they paid for the houses in the first instance. Presumably, the banks will sell on those houses at much lower prices to recover as much of the loans as possible. It would make more sense if there was some obligation on the banks to cut a deal with the owners of those houses and to readjust the mortgages. If somebody is renting a house, that rent-roll is an income stream for the bank. If the banks move against the owners to acquire the houses, presumably they are looking for them with vacant possession in order to maximise the potential return from the properties. The Minister may refer to taking on board the spirit of the amendment rather than accepting it, but I cannot see how that will, in any way, ameliorate the difficulties for those tenants.

There has been much talk in the past two days in this House about suicidal intent and suicidal ideation. There is no doubt in my mind, given what we have experienced in the past five years, that many people have committed suicide because of their financial difficulties and their indebtedness. I have no doubt that repossessions will aggravate the very distressed mental positions people are in. What will we do for such people in this Bill?

As usual the well thought-out amendments tabled by Senator Barrett, very much enrich the discourse and debate in this House. Most of the time, Ministers take on board the spirit of what Senator Barrett proposes and the contributions of other Members, in particular Senator Hayden, who let us not forget was chairperson of Threshold for nine years and served as a board members on the Private Residential Tenancies Board. When she speaks about tenants' rights and the importance of same, she speaks with authority. I have no doubt the Minister will respond positively in trying to accommodate the spirit of what Senators Barrett, Hayden and others propose.

I thank Senator Sean D. Barrett for raising an important issue. However, it is not one I can deal with in the Bill which deals with the issue of repossession and the protections which might be put in place to prevent it.

There are certain circumstances in which the Residential Tenancies Act 2004 protects tenants where the ownership of a property changes. I want to reflect in this debate on the context and circumstances to which Senators Sean D. Barrett, Aideen Hayden and others have made reference. If there is a particular problem in the area, I will be very happy to come and address it on another occasion. However, I cannot do so in the context of the Bill. What has been proposed, while useful to our discussion, would not, in legal terms, address the issue in the manner Senator Sean D. Barrett intends. There is further work to be done in the context of what he has said. The actual provisions for protection in the Residential Tenancies Act are something on which I am happy to engage with the Minister for the Environment, Community and Local Government, Deputy Phil Hogan. The residential tenancies legislation falls within his remit. I hope Senator Sean D. Barrett will not be disappointed if I do not accept his amendment. We will follow up the matter and I will discuss it with the Minister, Deputy Phil Hogan. My officials will discuss matters with his officials and we will revert to the Senator in writing to indicate to him the conclusions of these discussions. I am also happy to inform Members of the Seanad generally who have an interest.

Senator Aideen Hayden has raised the interesting idea of a protocol to deal with the circumstances of tenants where a home has been repossessed from a landlord who is in mortgage arrears. These are all important issues which cannot be dealt with under the terms of the Bill. It was nevertheless a valuable discussion for which I thank Senators. I cannot support the particular proposal, but we will give the issues involved some consideration. Senators have discovered that when I say we will consider something, it is considered. If there is something that needs to be remedied, whether by my ministerial colleague, Deputy Phil Hogan, or me, it will be remedied. If we discover, having looked comprehensively at the law in this area, that there is no need to do anything, we will equally say so. I am very happy to reflect on the debate and thank Senator Sean D. Barrett for raising the issue.

I am grateful that the Minister is happy to reflect on the matter and address it. That is always valuable. I recall that on the Personal Insolvency Act we had a tutorial by all parties which helped the Minister. Certainly, the number of amendments he proposed or accepted from other Members was remarkable. I look forward to seeing it in operation.

The problem is that of the 150,000 properties, 130,000 could create difficulties. Contemplating that level of evictions is appalling, as indicated by the Minister and Senators Aideen Hayden, Martin Conway and Jim Walsh. I hope the discussion we have had will send a message to the financial receivers and buyers of the properties that the House is not at all enthusiastic about the possibility of repossessions and evictions and that these matters will be addressed by Deputies Alan Shatter and Phil Hogan in their ministerial capacities. That signal from the Oireachtas is most valuable lest there is anybody outside who thinks he or she can repossess a property and seek vacant possession and put people out. It is one of the great parliamentary functions to say that is not the way its Members are thinking and that the Minister is giving it further thought. I thank him profusely and wish him good luck. We will be in communication to see what we can do to get around the problem. The House should be grateful to the Minister for his positive response, which I welcome.

Amendment, by leave, withdrawn.
Question put: "That the Bill be received for final consideration."
The Seanad divided: Tá, 29; Níl, 15.

  • Bacik, Ivana.
  • Barrett, Sean D.
  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Clune, Deirdre.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Conway, Martin.
  • Gilroy, John.
  • Harte, Jimmy.
  • Hayden, Aideen.
  • Healy Eames, Fidelma.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Kelly, John.
  • Landy, Denis.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullen, Rónán.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Keeffe, Susan.
  • O'Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.
  • Whelan, John.

Níl

  • Byrne, Thomas.
  • Cullinane, David.
  • Daly, Mark.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • O'Brien, Darragh.
  • O'Donovan, Denis.
  • O'Sullivan, Ned.
  • Power, Averil.
  • Reilly, Kathryn.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.
Question declared carried.