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

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

Senator Sean D. Barrett

Social thought and studies about imprisonment in Ireland and the damage it does to people show that imprisoning people who have trouble paying a television licence, for example, is an extremely expensive and disruptive way of dealing with matters. I liked the Minister of State's emphasis on the attachment of earnings and deductions from social welfare payments.

I am concerned about the provisions in this section for "imprisonment for a term not exceeding 12 months" and "imprisonment for a term not exceeding 5 years". I thought we were trying to move away from debtors' prisons. Why retain such lengthy sentences when the emphasis in modern criminology is on getting in the money and avoiding the cost to the State of imprisoning people, many of whom are allowed out remarkably quickly?

I support the bona fides of the Minister for Justice and Equality, Deputy Alan Shatter, and of the Minister of State at the Department of the Environment, Community and Local Government, Deputy Fergus O'Dowd, in that regard. Are these such serious items that we still envisage non-payment can have one jailed for five years or 12 months? Is there a general view in the Department of Justice and Equality we should be moving away from imprisonment? I thought, in line with popular opinion, the Oireachtas would no longer wish to imprison people for owing relatively small sums of money.

Senator Martin Conway

I appreciate what the Senator says. Sometimes, however, prison needs to be used as a deterrent. Unfortunately, all too often the first response was to send someone to prison. In recent years, 8,000 people have been imprisoned, even just for a day, for non-payment of fines. The Bill is reforming in that it will dramatically reduce that number and make alternatives available, such as collecting the money at source from someone's workplace. I would like to see this method extended to social welfare and pension payments. I cannot understand why it is not done. It should be equitable. The sharing of information between State agencies is welcome and should have happened years ago and should happen more than it does.

On the contrary, I suggest this legislation will dramatically reduce the revolving door within prisons as a result of non-payment of fines. There will be sensible ways of collecting fines, including the likes of community service.

To be fair to the Minister for Justice and Equality, he is committed to alternatives to prison, as evidenced by his support of the Private Members' motion on community courts that I tabled three or four weeks ago, and the commitment to set up a pilot community court between Store Street and Pearse Street Garda stations in Dublin by the end of the year. They are testament to his commitment to ensuring that prison is a last resort. Nevertheless, there must be last resorts, and in the final analysis, courts should have the option available to them if nothing else works.

Minister of State at the Departments of Communications, Energy and Natural Resources and Environment, Community and Local Government (Deputy Fergus O'Dowd)

I thank the Senators for their comments and views and I understand the concerns. The proportionality of the action is key and Senator Feargal Quinn is concerned that if the action is not proportionate to the initial offence, there will be a significant adverse impact.

Section 8 provides for the appointment of receivers under a recovery order made by the court. Recovery orders will be made under section 7(1) and receivers will be able to recover the fine or seize and dispose of assets to recoup the fine. Section 8(3) sets out the powers and duties of the receiver, with section 8 allowing the receiver, assisted if necessary by An Garda Síochána, to enter a person's premises, including the dwelling, to take possession of property. The Senator opposes section 8 and the recovery order provisions. It is worth recalling that these provisions are already on the Statute Book and the provisions contained in this Bill are not as onerous as those which already exist.

Under the 2010 Act, recovery orders were to be made every time a fine was imposed and activated once a person defaulted on paying a fine. This meant that, had the Minister commenced the relevant provisions of the 2010 Act, every fined person risked the appointment of a receiver to recover the fine. Under the Bill there is a less onerous provision. Instead, recovery orders will only be made after a person has had a year to pay a fine and where the court decides that it would not be appropriate to make an attachment order. Even then, the court has a free hand to make either a recovery order or a community service order, and following amendment No. 3, it can only make a recovery order if the fine exceeds €500.

I appreciate the Senator's concerns regarding the question of entry into a premises. These provisions relating to receivers are similar to those relating to sheriffs of the Revenue Commissioners. Receivers must be appointed by the Government and, critically, they will operate in accordance with a recovery order made by the court. Nobody can act without the orders of a court and only after due and proper consideration.

We must not lose sight, however, of what we are talking about. We are dealing with people who have the cash or other assets to pay a fine and have refused or failed to do so. The court would have formed the opinion that these parties have the required assets. They would have provided the court with a statement of their financial circumstances and the court would have decided it was appropriate to make a recovery order and appoint a receiver. This is not a draconian provision, as it would be used after due consideration and after a fine of more than €500 had not been paid for at least a year. The provision is balanced and fits with the overall tenor of the Bill. The approach is to set fines at a level that people can afford to pay, and it is to make it as easy as possible for them to pay by making instalments available to everyone. Where a person fails to pay the fine, this puts in place alternatives to imprisonment. As has been noted, more than 8,000 people went to jail last year for reasons that could have been avoided.

The Minister's intention is to ensure there are alternatives in place so as to avoid such imprisonment. The Government believes it has a role to play in a comprehensive approach to the recovery of fines, through recovery orders, albeit a lesser role than that provided for in the 2010 Act. Therefore, its view is that section 8 should stand part of the Bill.

The Senator made a point earlier to which I would like to respond. It has been drawn to my attention - I stand corrected by the Senator's superior knowledge - that where the receiver makes or causes to be made an entry into a record, if that record is false or misleading in any material respect and if he or she knows it to be false or misleading, he or she shall be guilty of an offence. It is the receiver who goes to jail in this case. On summary conviction, a receiver will be subject to a class A fine, imprisonment for a term not exceeding 12 months, or both, or on conviction on indictment can face a fine of €50,000, imprisonment for a term not exceeding five years, or both. This refers to the receiver, not the offender. I hope this is helpful to the Senator.

Question put and agreed to.

Sections 9 to 13, inclusive, agreed to.

SECTION 14

Question proposed: "That section 14 stand part of the Bill."

Senator Feargal Quinn

I would like to speak to sections 14 to 16, inclusive, as they all cover the area of deductions from earnings. I have concerns with regard to the State interfering directly in a person's personal finances. However, this has been done already in some areas - for example, where the State has imposed the pension levy.

My real concern is that the court may make an order directing the person's employer to deduct a fine from the person's earnings and to pay the sums deducted in that matter or specified in the order. The issue of fines is a private matter and should remain so and I do not agree that a person's employer should become another party to the matter of a fine. The court should be allowed to make an order against the person to pay through his or her earnings but should not be allowed to instruct the employer to deduct and pay the sums involved. This would be another burden and barrier for business and would increase costs, and I am totally opposed to it.

As an employer for many years, I was shocked to see more barriers being imposed on me as an employer. I have spoken about this issue quite a bit at the Oireachtas Joint Committee on Jobs, Enterprise and Innovation and believe we must remove these barriers. This may be seen as a small measure, but in business, particularly in the retail business, margins are very tight. A small or medium-sized business could well be pushed over the edge by these new rules requiring it to comply with attachment orders. I am sure Senators with business experience would understand my concerns in this area.

In addition, subsection (7) makes it an offence for an employer, without reasonable cause, to fail to comply with so-called attachment orders. I believe it is a backward step in the fines system to impose such an obligation on a business. Placing stringent and ridiculous obligations on businesses throughout the country at this time is extraordinary. This is a time of recession and we should be setting up conditions for businesses to grow and develop. This part of the legislation impedes this. I wonder what the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, and the Minister of State, Deputy John Perry, think of these parts of the Bill. Did the Minister consult them on this part of the Bill? My guess is they would not be happy with it.

If I was an employee and had a problem paying a fine, I would be upset to know that my employer knew my situation and that this could put my reputation and job in jeopardy. This would be the case if we pass the Bill, as it stands. We should not drag all of these parties into the minor matter of a fine. Let us not air people's dirty linen in public. I believe sections 14 to 16, inclusive, should be deleted in their entirety if we are serious about business in this country.

Let us not put more red tape on businesses for the purpose of fines. Let it be between the court and the person who has to pay the fine. Do not bring the employer in as a third party; keep it simple for everybody.

As a business person with many years’ experience of starting a business, running it on a day-to-day basis and creating jobs, I totally oppose these parts of the Bill. It is clear in my mind, and would be to any rational person, these parts of the Bill are not needed. I call on the Minister of State to remove these sections of the Bill and I believe employers, especially in SMEs up and down the country, will have a major concern about these sections.

I have raised this part of the Bill with several business owners and they could not believe this was included in it. They were shocked. For this reason I urge the Minister of State to accept the amendment to take them out. If somebody is charged to pay a fine that is his or her business but it should not also be the business of his or her employer to have to collect it for the State. I believe that should be opposed.

Senator Martin Conway

When Senator Feargal Quinn speaks on issues related to business he has to be taken extremely seriously because he created thousands of jobs in this country over many years. That said, I do not necessarily agree with his position on a third person. I believe it should be cost-neutral and should not end up being a negative cost to an employer if he or she has to deduct at source.

The Bill aims to prevent 8,000 people having to go through the revolving doors of Mountjoy and other prisons. It would be the lesser of two evils. There is perhaps scope to refine it and to include assurances to businesses and people that it will not impose a cost and unnecessary red tape. Perhaps some refinement of the sections that would go some of the way towards alleviating the Senator’s concerns. I do not share his views on the principle but it should be cost-neutral and without red tape, as much as possible. We have some breathing space between now and Report Stage so the Department, the Minister and his officials might consider including some assurances that it would at least be cost-neutral.

Deputy Fergus O'Dowd

Senator Feargal Quinn wishes to see this section removed from the Bill but the section provides for the making of attachment orders directing a person’s employer to deduct a fine from the person’s earnings and pay it to the Courts Service. The introduction of attachment of earnings is a commitment in the programme for Government and it is one that makes a lot of sense.

When the court imposes a fine the person on whom it is imposed is required to pay it, that is the law, after due process. If that person is in employment, with sufficient earnings to pay the fine, he or she should pay it. There is no doubt about that. If the person chooses not to pay the fine the State is entirely within its right to recover the fine from the person’s earnings. As to the additional work that attachment orders will create for employers, attachment orders have been a feature of family law for almost 40 years and employers are also required to make other deductions from employees’ earnings routinely. Payroll administration, as the Senator is aware, is well equipped to make all sorts of deductions, at the instigation of either the employee or the State. An employee can avoid all of this by paying the fine. This applies only at the end of a year-long process, if he or she has not paid. The attachment provisions have to be seen as part of an integrated approach.

As I understand it, the name of the employer is not mentioned in court. The judge makes the order. There is no publication of the employer's name. The 2010 Act allows for the publication of the names of people who default on their fines. That has been omitted from this legislation. It will not continue. The privacy of the employer is not breached in this context.

The logic of the Senator’s position is that, even though a person can afford to pay a fine the State should not make any effort to recover it. While I appreciate the Senator holds a view, I believe he errs, when the person has the income to pay the fine. I respect his views but the Government stands with the majority of people who pay their fines and will make every effort to recover them from those who can afford to pay them. We think, therefore, that this section should stand part of the Bill.

Senator Feargal Quinn

I understand what the Minister of State says and the State should do its best to get back the money it is owed. I am trying, however, to avoid placing more burdens on businesses. Every big business starts as a small business. If we place more burdens, difficulties, barriers and red tape on businesses it is less likely they will get off the ground. The person fined should pay. We should find a way to do that but it should not involve the employer.

Senator Martin Conway

I forgot when commenting on the section to ask what is the logic for not including attachment orders to State pensions and social welfare payments? Surely it is reasonable, if the burden of attachment orders is imposed on SMEs and other businesses – and I sincerely hope it can be ironed out on Report Stage – the same logic should apply to the State and its payment sections? I am bemused by it.

Deputy Fergus O'Dowd

The maximum order that can be made where someone receives a social welfare payment is €2 per week. That would take a significant length of time. It is felt that the individual who must pay the fine should consider the three options, and one is therefore not being considered. The Senator could raise this issue on Report Stage next week.

Senator Martin Conway

It just does not make sense.

Question put and agreed to.

Section 15 agreed to.

Amendment No. 7 not moved.

Section 16 agreed to.

Sections 17 to 19, inclusive, agreed to.

SECTION 20

Government amendment No. 8:

In page 24, between lines 27 and 28, to insert the following:

“(iii) by deleting subsection (2),”.

Amendment agreed to.

Section 20, as amended, agreed to.

Sections 21 and 22 agreed to.

SECTION 23

Senator Feargal Quinn

I move amendment No. 9:

In page 27, lines 5 and 6, to delete all words from and including “Protection,” in line 5 down to and including line 6 and substitute the following:

“Protection.”.

This section provides for the sharing of data and exchange for the "purposes of assisting the courts in the collection of fines." It details how the Revenue Commissioners, the Minister for Social Protection and "such person as may be prescribed . . . shall provide the courts with any information in their possession or control which the court may require in order to fulfil its functions in relation to the payment and recovery of fines".

I am concerned by the provision which includes the words "such person as may be prescribed". I am not sure what it means. It is massively open to change and even interpretation. As all public representatives should be concerned with the protection of citizens' data, the Bill should strictly limit the sharing of information, in this case on fines.

I am particularly concerned about the sharing of information which could impact on a person who must pay a fine. Some information, for example on his or her personal possessions, could be shared with the court which would then share it with the receiver. For example, a person's personal details of, say, his or her property, which could then be seized by someone entering his or her house, should never be shared in this way. It is unfair, unjust and an infringement on a person's purely private life. Section 23 needs to be amended and the phrase "such persons as may be prescribed" deleted in order that "relevant person" will be limited to the Revenue Commissioners and the Minister for Social Protection. That makes common sense. As legislators, we must protect a person's basic rights in terms of his or her private business and data protection and not leave a very ambiguous phrase in legislation, which is always dangerous. With this amendment, the limits would be much more strictly defined, meaning that a person's basic rights would be much better protected. Only the Minister for Social Protection and the Revenue Commissioners should provide information of relevance on a person. In broad terms, that would mean a person's tax status or if he or she was receiving social welfare payments. In the legislation we should aim to limit it to this. I, therefore, urge the Minister of State to accept this very sensible amendment which would result in a much better definition of terms and the better protection of personal data. I am concerned about the term "such person as may be prescribed". It is too wide and open and should not be left as vague and wide as this.

Deputy Fergus O'Dowd

The Senator wants to delete section 23(2)(c). Section 23 deals with data sharing and data exchange. It is intended to allow the Courts Service to obtain information from the Revenue Commissioners or the Minister of Social Protection to assist in the recovery of fines. As the Senator points out, paragraph (c) allows for a person or body other than Revenue or the Minister for Social Protection to be prescribed. It is included to avoid having to amend the Bill, if necessary, in the future to apply these provisions to another body. For the time being, the Minister is satisfied that only the Revenue Commissioners and the Minister for Social Protection are concerned and has no plans to prescribe any other body. It would, however, be remiss of him to exclude the possibility of data sharing or data exchange with another body in the future. For that reason we cannot accept the amendment. As any such future prescription would have to be made by regulation that would have to be laid before the Houses of the Oireachtas, the Senator's reasonable concerns could be addressed at that time. The legislation would be discussed in the future if a new body was to be prescribed as one with which data could be shared.

Senator Feargal Quinn

I thank the Minister of State for that explanation, but I am not at all happy, in particular with the concept that it is not the intention to use this provision but that the Minister wants to include it because we may use it at some point in the future. The Minister of State is correct that a regulation would have to be presented to both Houses of the Oireachtas, but we never see them, as they are included in a list. They are not presented as Bills that are brought before us for discussion. It would, therefore, slip through without being examined. We should, therefore, remove paragraph (c) - "such person as may be prescribed" - for the very reason given by the Minister of State, that it is not intended to use it but that at some point in the future we might want to do so. That is not what we should be doing.

Amendment, by leave, withdrawn.

Section 23 agreed to.

Section 24 agreed to.

Title agreed to.

Bill reported with amendments.

Seanad Éireann debate -
Tuesday, 1 Apr 2014