Fines (Payment and Recovery) Bill 2013: Committee Stage (Resumed)

Question proposed: "That section 8, as amended, stand part of the Bill."

I am opposed to section 8 in its entirety. The whole section, including subsection (3), sets out the powers of the receiver in regard to the seizure, holding and disposal of the property of a person in respect of whom a recovery order is made by the court — for instance, in respect of the non-payment of a fine.

The receiver has the power to enter a premises, including a dwelling, alone or accompanied by a member of An Garda Síochána and to demand and take possession of the property of the person who has not paid the fine. I am concerned by this part of the Bill, which has the potential to worsen how our fines system operates, as it increases fear. We could have a situation where people have no income and cannot pay their way. The next thing they know, a stranger with a legal right is entering the property and demanding, and taking away, something that could be precious to them. With the legislation, it will be an offence to stop the person from taking away property. That is extraordinary and must be, at the very least, contrary to the basic human rights of any citizen. At worst, it may be anti-constitutional, particularly in respect of Article 40 of the Constitution. Article 40.5 of the Constitution reads: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” We are now creating such a law. We are allowing people other than An Garda Síochána to enter a person’s home by force.

Have legal experts or experts on policing been consulted on the legislation? I am sure the Government may say that the provision to enter a person’s home and seize property is nothing to worry about. The Minister of State gave the impression that it is not the intention, but I do not agree. The provision should be taken out as it may be anti-constitutional. Will the Minister of State comment on whether any study has been carried out to examine whether this is compatible with the Constitution? It seems to be open to challenge. Should we pass the legislation if there is the slightest doubt? I do not think we should. Legislation should be watertight, as the Minister of State knows well.

I draw the attention of the Minister of State and other Senators to section 6(2) of the Criminal Law Act 1996, which allows entry and search of any premises, including dwellings, for An Garda Síochána to make an arrest in certain circumstances; that is, to enter on a specific criminal matter. Non-payment of a fine does not have any relation to those clauses. By enacting the legislation as it stands, it is eroding the power of the Garda Síochána, as it gives other actors more power to enter property, which is something that is also worrying. I do not think we should interfere in this delicate matter. We should not be adding to the list of people who can enter a person’s home and seize his or her property. It is an extraordinary development.

Evictions of people from their houses are stirring up controversy, and there is an obvious difficulty with sheriffs entering people’s homes for the purpose of repossession. Ireland, with its history in the 19th century, should not find this acceptable. Why is the Government introducing legislation that gives receivers the right to enter by force? Senators, and the general public, will see this obvious and massive discrepancy. As the Seanad, we must stand up against this. It is not correct to confer these massive powers on someone for the small offence of non-payment of a fine. This part of the Bill should be significantly changed or, if that is not possible, deleted in its entirety. In this country, thankfully, it is quite difficult for a garda to enter a person's property, and he or she usually needs a warrant. That provision is there for a reason: to protect a person’s basic human rights. The Bill changes that situation and it means a receiver now has the right to violate the dwelling of a citizen for a comparatively trivial matter. I am sure those who fought for the foundation of the State would be wholly opposed to this move. For this and many other reasons, I object to this provision in the Bill, and my amendment aims simply to ensure a person’s fundamental rights are not infringed. I repeat that I do not think anyone should be allowed to enter premises and seize property without the presence of a member of An Garda Síochána. This is something that is unprecedented and, worse than a police state, it is the privatisation of police powers legalised by the Government. It is in black and white.

Subsection (5) provides that the receiver may delegate the function to enter a person’s house and seize property. This is not compliant with a functioning rule of law.

To sum up, my amendment is specifically concerned with the rights of the receiver outlined in this part of the Bill, namely, to enter a person’s property by “reasonable force” potentially without a member of the Garda and to demand and take possession of a person’s property. However, given that there are so many references to the powers of the receiver in section 8, my amendment proposes to delete the entire section.

I call on the Minister of State to delete this part of the Bill and accept the amendment. I do not think that many people are aware of this part of the Bill and we as legislators have to stand up. At the very least, I want citizens to know about this quite extraordinary development. I urge the Minister of State to do the sensible thing and remove this corrosive part of the Bill.

Progress reported; Committee to sit again.