Civil Debt (Procedures) Bill 2015: Committee and Remaining Stages
SECTION 1
Question proposed: "That section 1 stand part of the Bill."
We made it clear on Second Stage that we had huge issues with this Bill. We believe it is a wolf in sheep's clothing to a certain extent. Its only mitigating factor is the section dealing with people not being imprisoned for non-payment of debts, but the rest of the Bill is being used to cover up the Government's failure in regard to water charges. It is clear to us that the way this Bill and the Environment (Miscellaneous Provisions) Bill were brought before the Houses is a panic reaction from the Government because there is huge lack of buy-in on the part of the public to the issue of water charges when only 43% of people have signed up at this stage. It is clear to us the number of people who will pay their water charges in the future will decrease rather than increase.
It is a failed Government policy. This is the Government's fourth attempt to bring legislation through the Houses to bring through a flawed entity, Irish Water, Uisce Éireann. We opposed it on all other Stages and still oppose it here. We oppose the way the Government is trying to give sweeping powers to an entity such as Irish Water to pick-pocket Irish citizens who have shown their distaste for the way the Government has set up Irish Water as a utility. We call on the Government, even at this stage, to withdraw the Bill and to rethink its position on Irish Water in line with public opinion. It is in that tone that we oppose almost all sections of the Bill.
I will stick to my speaking note, even though I am very tempted to move off script.
I understand Senators are opposing this section. I understand they are ideologically opposed to the provisions of the Bill which deal with attachment of earnings and deductions from social welfare payments. I will briefly outline the purpose of section 1.
Section 1 is the definitions section of the Bill. Among the terms defined is "net scheme payments", which is required for the purposes of dealing with deductions from certain social welfare payments. "Debt" is defined as not including debts arising from the repayment of loans to a debtor made by a bank, credit union, moneylender or credit card debt. It is important to note that "net scheme payments" is a definition which protects those on social welfare because it ensures the deductions from a social welfare recipient's payments do not dip below the basic social welfare rate.
Question put and declared carried.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."
Working on the basis that the Government knew the low-payment figures released last week were disastrously low for it, it is plain to see that this is why it decided to rush this draconian legislation through at the earliest possible opportunity and is trying to push the issue of water charges off the political agenda for September. Ensuring it will remain on the agenda, there will be further civil disobedience and protests before the end of the summer. In all ways, we oppose the way the Government is approaching this issue.
I note that Senators are also opposed to section 2. Section 2 is a standard provision relating to the making of regulations under the Bill when enacted.
The Minister for Justice and Equality will be making a commencement order under the provisions of section 27. Under section 7(4), the Minister for Social Protection may, by regulations, prescribe the verifying certificate. In sections 24(1) and (2) the Minister for Social Protection, with the consent of the Minister for Justice and Equality, may, by regulations, prescribe a social welfare scheme for the purposes of deductions under this legislation.
Question put and declared carried.
SECTION 3
Question proposed: "That section 3 stand part of the Bill."
For the reasons outlined, my party opposes this section.
Question put and declared carried.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."
For the reasons outlined, my party opposes this section.
Question put and declared carried.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."
Is Senator Trevor Ó Clochartaigh in a similar position?
Yes. For the reasons outlined, my party opposes this section also.
The Senator's position is noted.
Question put and declared carried.
SECTION 6
Question proposed: "That section 6 stand part of the Bill."
Is Senator Trevor Ó Clochartaigh in a similar position and opposed tot he section?
Yes. For the reasons outlined, my party also opposes this section.
Question put and declared carried.
SECTION 7
Question proposed: "That section 7 stand part of the Bill."
The process as outlined in the Bill means that a creditor will first have to have obtained a judgment against a debtor in respect of a debt and may then make an application to the District Court for an attachment of earnings order or a deduction from payments where the judgment concerned is for a liquidated sum of not less than €500 but no greater than €4,000. The debtor will then have to furnish the court with a statement of means and information on dependants and liabilities for it to be able to determine the protected earnings rate of the debtor. Section 7 deals with the statement of means. The statement of means to be provided by a debtor is a burden given the amount of information required to be provided. On top of the worry of personal debt, it is unreasonable to have imposed on a debtor the burden of preparing such an extensive number of information documents for the court. The possibility of the details provided being inaccurate as a result of the sheer volume of information sought is high. This will undermine, through no fault of the debtor, the protected earnings rate to be determined by the court.
On Second Stage there were some very valid concerns raised, including by Senator Jillian van Turnhout, about the fact that one would be washing people’s dirty laundry in public. All of their financial details would be discussed in open court. Considering the amounts of money in question, this seems to be going too far. Therefore, we have serious concerns about the section and hope the Minister of State will reconsider, even at this late stage.
This section, on statements of means, also boils down to ability to pay. Questions have been raised by organisations such as FLAC about how the District Court will determine whether a person can afford to pay the debt on enforcement and the various types of enforcement procedure, including deduction from salary through the PAYE or social welfare system. A debtor in employment, for example, will be obliged to provide a statement of means for the court, which will then be used in assessing his or her capacity to pay. Where the debtor is receipt of social welfare payments, the statement of means will have attached to it a verification statement from the Department of Social Protection. Therefore, issues arise regarding employment which we will deal with in other sections and the relationship with the employer.
Judgment debtors are invited to provide a statement of means in regard to instalment order applications, but many do not do so. According to FLAC, although the legislation is in place, many do not do so in some instances due to a fear of the court process and the public nature of the court appearance. Any journalist or individual can obtain information in a public courtroom on the means of an individual. There are no safeguards in place and there is none built into the legislation.
It will be an offence not to comply with this section without a reasonable cause and conviction carries a potential class C fine to a maximum of €2,500, which is another potential debt for the debtor. The debtor will be afforded the opportunity to make representations to the court on his or her own behalf, but many judgment debtors do not avail of this opportunity, given the public nature of the courtroom. The ordinary individual on the street would not have the confidence, means or wherewithal to make a case for himself or herself in court without hiring a solicitor. That costs money, money which he or she does not have in many cases. The Law Reform Commission has raised this issue. The Bill makes no reference to any service or support that might be available to debtors, particularly distressed debtors, who appear in court to support their cases on inability to pay.
Opportunities have been missed. There are two issues. The first is that there is no support for the debtor who may have to appear in court to present a case. That support might be legal or emotional, just having someone with them. Many of these debtors are isolated and living in poverty. While there are people who may default on debts, even though they can pay them, many others default because they cannot afford to pay. These people need support and help. The issue was raised by the Law Reform Commission, but it has not been addressed in the Bill.
The second issue concerns the openness of the courts' procedure and process. As Senator Trevor Ó Clochartaigh said, individuals have to give their information in a public setting and then effectively make it available to the world, which is wrong. There should be a different process, particularly for small debts. An opportunity has been missed to establish some kind of out of court system that would be private but which would probably yield better results for the lender than going through the public courts system. It would also cut down on legal expenses.
A process is being established that will ultimately benefit the legal profession, which is unregulated. The European Union and the IMF raised it as one of the Government's failings, that is, not bringing in regulation to a shielded sector within the economy. This sector will benefit from this legislation because individuals will need legal representation, but that is wrong. Small debts of up to €4,000 should be dealt with privately in a different manner outside the court setting. Both debtors and lenders would obtain better outcomes if that were so.
The Minister of State will probably read the departmental line he has been given in whatever answer is coming from on high. I must accept that, but an opportunity has been missed in not dealing with the public courts setting. Individuals should not have to wash their linen in public and let the world see what their means are. That is wrong. No one should have to justify why he or she was not in a position to pay a small debt. We should not put people in that position and we would not have done so if this legislation had been drafted otherwise, with different thinking and new methods, such as what is done in Britain and other jurisdictions. We could have established a debt office to mitigate for both sides and come up with a compromise. Everyone would have benefited from that, but instead we will fill the courts system again which is already clogged up. We know that the courts are working in overdrive with debt cases, but this legislation will only exacerbate the problem, while supporting the legal profession.
I understand Senators are opposed to the section which deals with the statement of the debtor’s means. I appreciate that they are trying to be as constructive as possible.
Section 7 sets out the requirements in relation to the information to be provided to the court by the judgment debtor on his or her financial circumstances. In order for the court to establish the debtor’s capacity to pay, it must have sufficient information on the debtor’s circumstances, including his or her financial circumstances.
The judgment debtor, on receipt of a notice under section 6, is required to complete a statement of means providing details of his or her income and financial commitments. Where the debtor is a social protection recipient, he or she will be required to request a certificate from the Department of Social Protection verifying his or her payments. This ensures the court has accurate information on the debtor’s social protection payments to assist it in coming to a view on affordability. This certificate will outline, in particular, what portion of the payment is personal to the debtor, what portion is in respect of his or her dependants, and whether there are any deductions being made from the social protection payment. The certificate will not be disclosed by the court to the judgment creditor.
The court is empowered to request further supporting documentation from the debtor, or his or her employer, if so required. The statement of means provided for the court and the verifying certificate from the Department of Social Protection shall be admissible in evidence.
Senators also referred to the statement of means.
The statement of means will be drawn up under rules of court. It will be along the lines of the forms in use in family maintenance cases and those which will be introduced in the context of attachment of earnings orders for the payment of criminal fines.
The debtor’s personal public service number, PPSN, will not be shared with the creditor or the court. This was made clear in the amendments the Minister tabled on Report Stage in the Dáil.
It is not possible for these matters to be dealt with in camera. The legal system operates on the basis that justice must be seen to be done in public. Accordingly, there are limited circumstances in which court hearings may be held in camera.
It is not the case that an employer will see all of a debtor’s private financial information. The employer will be served with the court order by the creditor. It will set out what deductions must be made over a specified period, as set out in section 10(6). It will not give the debtor’s financial information.
Is the debtor having to provide a copy of his or her completed statement of means to the creditor, as well as to the court, a breach of the debtor’s privacy? It is normal in civil cases to have an exchange of documents between the parties concerned. However, the statement of means which is to be prescribed under the rules of court and the verifying certificate which is to be prescribed by the Minister for Social Protection will have to be drawn up carefully in order that sensitive information on the debtor is not disclosed.
I appreciate the sensitivity of these issues and hope I have clarified matters for the Senators.
Question put and declared carried.
SECTION 8
Question proposed: "That section 8 stand part of the Bill."
As outlined, Sinn Féin opposes the Bill in its general sense. Accordingly, it opposes this section.
Question put and declared carried.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."
Section 9 is, in no way, a safeguard, as it has been labelled by some Government Deputies and Senators. It states no order deducting money from a person’s hard-earned wages will be concurrent. The truth is that this means that there will, therefore, be consecutive deductions. The Minister for Justice and Equality, at the launch of the annual report of the Free Legal Advice Centres, FLAC, stated:
People want to pay their debts. Those who can pay them will pay them. No reasonable person will resent seeing someone who has fallen on hard times benefit from proportionate debt forgiveness.
There is, however, no debt write-down involved. Instead, this is merely a ploy, labelled as a safeguard, to keep people in debt for a longer period to make sure every last cent is squeezed from their pockets. This section will only prolong the hardship and it is not a safeguard.
Section 9 provides that an attachment of earnings order and a deduction from social welfare payments order cannot be run concurrently in respect of the same judgment debt. In the event that a debtor is in receipt of a social welfare payment and earnings, the court can only make an order in respect of one income stream.
Question put and declared carried.
SECTION 10
I move amendment No. 1:
In page 11, to delete lines 19 to 30 and substitute the following:
“(3) For the purposes of making an order under this section, the court shall be guided by the Insolvency Service of Ireland reasonable living expenses as required under section 23 of the Personal Insolvency Act 2012.”.
This amendment relates to the attachment of earnings order and the role of the court. The Bill does not offer any guidance on how a court is to discharge its functions, particularly if the debtor is not present in court to make representations in person. It makes no reference to the reasonable living expenses guide to which the Insolvency Service of Ireland and the official assignee must have regard under the personal insolvency and bankruptcy legislation to ensure a debtor’s income does not fall below an acceptable minimum income standard.
What is happening is that the courts will have to make a determination of that standard. Why try to recreate the world? Reasonable living expenses are already dealt with under section 23 of the Personal Insolvency Act 2012. This should be used. It should not be determined by a court. Even FLAC has raised this issue and has stated the courts in general do not have the wherewithal or financial assistance to be able to make such a financial determination. The courts are there to oversee the legal system, not to carry out financial analysis. If it was the case that the court was expected to carry out a specialised financial task, the only way it could do so would be to hire financial and budgetary experts to deal with people suffering from over-indebtedness, and that is not part of the Bill either. The only solution here is the amendment. Perhaps there is some reason, but I would like to hear what the Minister of State has to say about why we are going down a different path in providing the court with exclusive power instead of working with the Personal Insolvency Act's determination of reasonable living expenses.
Before I deal with section 10, I understand a correction by the Clerk is required under Standing Order 136. On page 12, line 9, paragraph (f) of section 10(6), as it stands, contains an incorrect cross-reference to paragraph (c). It should, of course, be paragraph (d). I would be grateful, therefore, if this typographical error could be corrected by the Clerk.
Amendment No. 1 seeks the deletion of the existing subsection 10(3) and its substitution with new text which seeks to provide that the court shall be guided by the Insolvency Service of Ireland's reasonable living expenses guidelines when making an attachment of earnings order. I can understand the Senators' concerns around this issue. As I said on Second Stage, there is nothing to prevent the court from having regard to those guidelines if they so wish, but there is no need to make such a provision in the Bill. When I spoke about this matter on Second Stage, I said I thought it was preferable to allow the court full discretion in assessing a debtor's capacity to repay a debt. Individual circumstances will vary from debtor to debtor, and the court should be allowed to make its own decision relating to these matters. While I understand the motivation of the Senators who have proposed the amendment, they may well find that the court has more latitude in determining living expenses and may be more generous to debtors if it is not obliged to have regard to the Insolvency Service of Ireland's guidelines.
As I said during the Second stage debate, reasonable living expenses have a different context in respect of personal insolvency. The Bill deals with the debtor's capacity to pay money that he or she owes to a creditor. Its provisions ensure the court will have sufficient information available to it relating to the person's financial circumstances. The court is also obliged to take into account any representations the debtor may make in relation to his or her circumstances. It is important to remember that the courts already have a body of expertise relating to this matter and they will approach it in a sensible manner. There is nothing to prevent a court from having regard to the Insolvency Service of Ireland's guidelines, if it so wishes. There is simply no need to make an explicit provision for this in the Bill.
I agree with the Minister of State. The court may well determine more favourably in respect of a debtor. However, there is no minimum threshold within the legislation and I would like to see something that would protect the debtor. We would accept as a minimum floor or threshold the reasonable living expenses outlined in the Insolvency Service of Ireland's guidelines. I appreciate where the Minister of State is coming from, but we are giving latitude. It is our job to make the law. We cannot criticise judges afterwards. We should at least have a guiding principle in the legislation that would guide the judge in making a determination. Judges will be in a difficult position with people coming before them and representations on both sides. There should be a floor and the floor should be the Insolvency Service of Ireland's guidelines.
If a judge wants to be more reasonable than the guidelines, that is within his or her jurisdiction. However, the legislation should set a minimum level. I am not sure whether the Minister of State would be willing to examine it and revisit it on Report Stage or if he is moving on with it as set out.
While I appreciate that the Senators are coming at this from the point of view of being constructive, we will have to agree to disagree.
Amendment put and declared lost.
Question proposed: "That section 10 stand part of the Bill."
We oppose the section which provides for an attachment of earnings order and a protected earnings rate. As I have previously outlined, the protected rate is flawed. The Bill creates a situation in which companies can use the courts to take money from the pockets of debtors who owe a small debt in the grand scheme of things. It will mean whatever little safety net a debtor and his or her family have to rely on, after liabilities are accounted for, will be removed.
Question put and declared carried.
SECTION 11
Question proposed: "That section 11 stand part of the Bill."
We oppose the section in line with our opposition to the Bill.
Question put and declared carried.
SECTION 12
Question proposed: "That section 12 stand part of the Bill."
Sinn Féin opposes the section. Section 12 places an obligation on employers to comply with attachment orders. Under the section, employers have to smash the relationships they have had with employees and collect the money. Otherwise, the courts will fine them. Not satisfied with burdening employers with the role of debt collector, the Government is stipulating employers will have to go to courts as part of normal employment behaviour. For an employer to determine whether particular payments are earnings, he or she will have to make an application to the courts under the legislation and may also be required to provide to the court a statement of specified particulars of his or her employees' earnings and expected earnings. As if employers did not have enough to do already, they must now deal with court documents and procedures.
When an employee against whom an attachment order has been made changes employment, the new employer must notify the court in writing that the person is now his or her employee and include in such notification a statement of the debtors' earnings and expected earnings from the relevant employment. Both the existing and future employer must submit a notification. If a future employer were looking for staff, and a prospective employee had an attachment order, the employer would be sucked into a bureaucratic nightmare when enforcing the Government's policy. Would an employer choose a potential staff member who has an attachment order, or somebody else? A person against whom an attachment order has been made becomes less employable under the legislation. The attachment order probably arises through poverty and the Minister has reduced the affected person's ability to earn in the future.
Setting aside the excessive administrative burden the Government is imposing on employers, imagine the impact of the measure on employee-employer relationships. In a difficult economic environment, many such relationships are already fraught and difficult, given that both sides of the employment contract are being pulled in different directions. This will cause more difficulty for employee and employer. We must ask whether the Government consulted any employers on the legislation. My colleague, Deputy Peadar Tóibín recently contacted the Small Firms Association and learned his call was the first it had received on the matter. It has never been discussed at an Oireachtas committee. As far as I know, the issue has not been broached with any employer and yet employers will have a new role under the Government's proposals.
The point made about a person against whom an attachment order has been made changing jobs is fair.
A person with an attachment of earnings order could dispute it and genuinely believe he or she was right, but the system might genuinely believe he or she was wrong. We have all been in a position in which we did not want to pay something because we had an issue with it, even though we could have been wrong. That does not mean the person is not capable of doing his or her job to a very high standard. I do not know how that can be dealt with, but it is a fair point. Perhaps under employment legislation it might be deemed illegal to ask a person at interview if he or she has an attachment of earnings order or to expect a person to declare that he or she is the subject of such an order. It should be just a formality, like paying tax. It certainly should not stand against people in changing jobs, improving their skills or applying for positions that may put them in a better position to pay their fines, bills and so on.
This issue will have major consequences for employees. Given that the attachment of earnings order applies to PAYE workers, it will cause difficulties in the general workforce. This has been examined in other jurisdictions - for example, in the United States and European countries, including the United Kingdom. The conclusions drawn from those examinations show the potential for an attachment of earnings order to have an effect on the employment prospects of the debtor. According to the examination of this practice in other jurisdictions, where an order is directed at the debtor's employer who is obliged to make the prescribed deductions, it can have an adverse effect on the employee's opportunities for promotion and advancement. It may even have an impact on the debtor's employment prospects, with employers in some cases drawing conclusions that trustworthiness, particularly regarding money matters, may be an issue for that particular employee. They are very serious consequences.
The recent FLAC submission to Members of the Oireachtas indicated that many countries have dealt with the issue through legislative schemes. FLAC recommended that an attachment of earnings order should only follow a debtor's failure to meet the terms of an instalment order, in other words, as a last resort. Varying the instalment order downwards due to a debtor's inability to pay should be examined before any attachment of earnings order is made. Any attachment of earnings order should be capable of being suspended in order to allow the employee to make the payments voluntarily. If a debtor comes into some money, he or she should be able to clear the debt. It is very important for this to be included, but it is not included in the Bill, which is surprising.
Where an attachment of earnings order is made, substantial employment protection measures should be put in place. In this regard, the Law Reform Commission's 2009 consultation paper recommended that the Unfair Dismissals Acts 1977 to 1993 be amended in order that dismissal on the grounds of being subject to an attachment of earnings order might be added to the list of unfair reasons for dismissal. In its 2010 report the Law Reform Commission recommended that legislation should prohibit not only the dismissal of an employee on the grounds that he or she had become subject to one or more attachment of earnings orders but that it should also prohibit any other adverse action from being taken against the employee on this sole ground. It also recommended that the employer be guilty of an offence under this heading. However, the Bill does not take any of these issues into account. It even allows a District Court judge to make an attachment of earnings order without first requiring the creditor to apply for an instalment order. There is no protection for the debtor against adverse treatment by his or her employer. These are major issues which will affect employees either openly or without an employer having to be so open about it. It may affect promotional opportunities and there may be hearsay within companies.
We can imagine that in the public or private sector an attachment of earnings order would become the story of the office and this is very wrong. The order should only be used, as was highlighted by the Law Reform Commission, as an absolute last resort. We are opening a Pandora's box, the effects of which no one can anticipate. The Bill has been brought forward as being based on recommendations from the Law Reform Commission, but the fundamental rights contained in the Law Reform Commission's paper have been excluded from the legislation. The only rights included are for creditors to obtain their dues without even having to present a case. This is wrong and it should be examined. This is a human rights issue as much as anything else, and it is a grave mistake to go down this road without taking on board all of the recommendations contained in the Law Reform Commission's research and examination of this area in other jurisdictions. We do not want to see the same consequences emerge here as have emerged in other jurisdictions.
I appreciate the motivation of Senators in tabling the amendments. It is fair enough and these issues should be examined in detail when dealing with legislation of this nature. I have no difficulty with this whatsoever. The section deals with compliance with an attachment order. The employer is required to comply with the order but is not liable for non-compliance during the first ten days. This is to allow for a situation where the person served with the order is not the person's employer, in which case the person concerned is required to notify the court accordingly. Provision is also made in subsection (4) for a situation where the debtor changes employment. Subsection (5) provides that the lapse of an order under subsection (4) does not prevent it remaining in force for other purposes.
With regard to employer and employee relations, employees are protected by unfair dismissal legislation and other employment law. The Attorney General has advised that unfair dismissal issues are already covered in Irish law and protections are adequate to deal with any issues which might arise regarding any attempt to discriminate against somebody solely on the basis of being the subject of an attachment of earnings order or, as the Senators mentioned, the possibility that a prospective employer might not employ someone because he or she is subject to an attachment of earnings order. We will monitor the situation very closely because we appreciate the statements made by Senators. Should any difficulties of this nature emerge we will take action to ensure it does not continue. It is important to say attachment of earnings orders are common in other countries such as the United Kingdom, including Northern Ireland, and Australia. Irish employers are already required to implement attachment of earnings orders for family maintenance and recovery of social protection overpayments. This is not necessarily new ground.
I thank the Minister of State for his response, but it does not give me much succour and it will not give many employees much succour. We must look at the context in which we are working. In recent years we have had a number of high-profile industrial relations disputes involving workers in a number of companies in the State, particularly those in lower paid jobs and on zero-hours contracts and the minimum wage. We have seen some very unscrupulous tactics used by those employers against any workers they see as stepping outside the norm, anybody looking for union recognition in the workplace or anybody standing up for the union recognition that they have. Unscrupulous employers have been very quick to take away people's hours and give them less favourable working standards. These are quite hard to prove in court because of the nature of the contracts allowed under the legislation we have in place. This is one reason we fear an employer, particularly in the lower pay bracket, will possibly wonder whether people coming with an attachment order on their wages are troublesome and whether the order will cause any hassle or mean the employer will have to send a manager or assistant manager to court, which would cost money.
This legislation and this section will have knock-on effects. Although the Minister does not intend it, there will be these unintended consequences about which I am very fearful in the climate in which we are working given the way employers have been treating employees in this country over the past number of years. I do not take any comfort from the Minister of State's comments in this regard.
Question put and declared carried.
SECTION 13
Question proposed: "That section 13 stand part of the Bill."
Sinn Féin opposes this section in line with its opposition to the Bill.
Question put and declared carried.
SECTION 14
Question proposed: "That section 14 stand part of the Bill."
Sinn Féin opposes this section in line with its opposition to the Bill.
SECTION 15
Question put and declared carried.
Question proposed: "That section 15 stand part of the Bill."
Sinn Féin opposes this section in line with its opposition to the Bill.
Question put and declared carried.
SECTION 16
Question proposed: "That section 16 stand part of the Bill."
Section 16 provides for the deduction of civil debt from a person's welfare payments. This is the most Thatcherite provision in the Bill. We are talking about the most vulnerable in society - pensioners, the sick, the disabled and the unemployed. It is particularly difficult for young people looking for their first employment or older workers who are made redundant through no fault of their own after the firm in which they worked for most of their lives closes without notice. It would be understandable if such individuals fell into debt. The debts do not need to be large because the legislation has a minimum threshold of €500 for court orders for attachment of earnings or deductions from social welfare payments.
Let us take the case of an unemployed young person with limited work experience who in the normal run of things will already struggle to find secure employment. How much harder will it be for that person to get a job if the first question in the interview is whether he or she has a court order that may require attachment of earnings to clear a civil debt? I imagine such a question would dampen the young person's enthusiasm and blunt his or her willingness to learn. The question may render meaningless his or her qualifications, or admirable references, because of the fact that he or she built up a modest debt. As it is difficult to repay even modest debts when one is unemployed, an order may have been made to deduct the repayments from his or her welfare payments. What chance will individuals have of securing their first job with attachment orders hanging over their heads?
An older person who becomes unemployed already faces certain obstacles in finding a new job. Sadly, age in itself becomes an obstacle in some cases. Employers may consider those who are highly qualified as overly skilled for the position while others have worked for 20 or 30 years in a trade or job for which there is no longer a demand. The longer they stay unemployed, the older they get and the less relevant their qualifications become. It is not difficult to imagine such citizens falling into debt. As deduction orders made from their social welfare would translate into attachment of earnings orders if they are lucky enough to get a job, how realistic are their chances of finding gainful employment? Will the employers want the hassle of dealing with that scenario? I do not think the Government has given serious thought to the way in which these orders could impede future employment prospects. On that basis, we oppose the section.
Question put and declared carried.
SECTION 17
Question proposed: "That section 17 stand part of the Bill."
Sinn Féin opposes this section in line with its opposition to the Bill.
Question put and declared carried.
Section 18 agreed to.
SECTION 19
Question proposed: "That section 19 stand part of the Bill."
Section 20 deals with the provision of a variation order. This, again, has been hailed as a safeguard by the Government. This is not a safeguard and is definitely not an appeals mechanism, as some have suggested. Another major flaw with the Bill is the lack of an appeals mechanism. Sometimes courts can get it very wrong. An attachment of earnings or the so-called protected earnings rate may be incorrect. It may be so incorrect that it merits a new hearing, but the Bill does not allow for this. Instead, a debtor can have the order varied.
Given that it is not good procedural practice, we oppose the section.
Question put and declared carried.
SECTION 20
Question proposed: "That section 20 stand part of the Bill."
The section deals with the provision of a variation order. The Government has hailed this as a safeguard. It is not a safeguard and it is definitely not an appeals mechanism. As I said, another major flaw of the Bill is the lack of an appeals mechanism given that the courts can get it wrong. Of the 27 sections in the Bill, there is only one section of merit, namely, section 26, which repeals Parts I and IV of the Debtors Act (Ireland) 1872 and is the only section of the Bill we support. We agree with the recommendations of the Law Reform Commission to provide for the abolition of imprisonment of debtors except in the case of maintenance arising from family law. It is in line with international best practice on human rights. The fact this has been sneakily attached to a section at the very back of the Bill is cynical and disguises the entire Bill as a step forward. For the reasons outlined, we object to the section.
Question put and declared carried.
Question, "That section 21 stand part of the Bill," put and declared carried.
Question, "That section 22 stand part of the Bill," put and declared carried.
Question, "That section 23 stand part of the Bill," put and declared carried.
SECTION 24
Question proposed: "That section 24 stand part of the Bill."
We oppose the section in line with our opposition to the Bill. Of the 27 sections, only two sections are of merit, namely, sections 25 and 26, which make necessary technical amendments. We agree with the Law Reform Commission's recommendations to provide for the abolition of the imprisonment of debtors except in the case of maintenance arising from family law, which is in line with international best practice on human rights. For the reasons outlined, we oppose the section.
Question put and declared carried.
Sections 25 and 26 agreed to.
Question, "That section 27 stand part of the Bill," put and declared carried.
TITLE
I move amendment No. 2:
In page 5, lines 5 to 7, to delete all words from and including “to” where it firstly occurs in line 5 down to and including “circumstances;” in line 7.
This is a necessary technical amendment in line with our overall opposition to the Bill.
Amendment put and declared lost.
Question, "That the Title be the Title to the Bill," put and declared carried.
Bill reported without amendment.
Question, "That Report Stage be taken now," put and declared carried.
Question put: "That the Bill be received for final consideration."
The Seanad divided: Tá, 20; Níl, 13.
Tá
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Gilroy, John.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Landy, Denis.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Naughton, Hildegarde.
- O'Brien, Mary Ann.
- O'Donnell, Marie-Louise.
Níl
- Craughwell, Gerard P.
- Daly, Mark.
- Leyden, Terry.
- Mooney, Paschal.
- Ó Clochartaigh, Trevor.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O'Brien, Darragh.
- O'Donovan, Denis.
- Power, Averil.
- Reilly, Kathryn.
- White, Mary M.
- Zappone, Katherine.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Trevor Ó Clochartaigh and Brian Ó Domhnaill.
Question declared carried.
Question,"That Fifth Stage be taken now," put and declared carried.
Question put: "That the Bill do now pass."
The Seanad divided: Tá, 20; Níl, 13.
Tá
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Gilroy, John.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Landy, Denis.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Naughton, Hildegarde.
- O'Brien, Mary Ann.
- O'Donnell, Marie-Louise.
Níl
- Craughwell, Gerard P.
- Daly, Mark.
- Leyden, Terry.
- Mooney, Paschal.
- Ó Clochartaigh, Trevor.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O'Brien, Darragh.
- O'Donovan, Denis.
- Power, Averil.
- Reilly, Kathryn.
- White, Mary M.
- Zappone, Katherine.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Trevor Ó Clochartaigh and Brian Ó Domhnaill.
Question declared carried.
When is it proposed to sit again?
The Seanad adjourned at 4.25 p.m. until 10.30 a.m. on Tuesday, 21 July 2015.
