Could I return to the point I made about the attachment of certain types of earnings? I recognise that we are concerned here with the normal situations where you have a wage or salary earner and the procedures are laid down for attaching wages or salaries. There could be a case where a man would have a regular source of income. As I said, no particular type of case strikes me except the case of dividends, trust funds and that sort of thing. This might ensure that an attachment order could apply in that sort of case. This section sets out that any of the parties concerned can apply to the court to have it decided whether the particular amounts of money are earnings or not. Is it clear that the sort of income I have in mind could be attached under the procedures of this Bill?
SECTION 14.
I think it most unlikely unless the income that it is sought to attach comes to the hands of somebody who is in an employer relationship with the debtor. The system requires that somebody have control of somebody else's money, and be in a position to make periodical payments to him. What we envisaged was the employer. The only other person would be a trustee. I do not think we could provide for attachment of trust funds. That would bring into question the whole trust instrument setting up the trust and whatever conditions might be attached to it. It might prejudice other people who would be beneficiaries under the trust. Essentially, I think the Deputy is talking about a person of independent unearned means. That type of person was never intended to be subject to attachment. The essence of attachment is to deal with the person in employment. Where there are independent means of that nature, the maintenance creditor will have recourse to the ordinary law, to the ordinary sanctions available.
Yes, I accept that. In this part of the Bill, Part III, we are creating a new and very convenient mechanism giving effect to these maintenance procedures. It would be a pity not to apply this machinery to all types of situations where it could be usefully invoked. There is nothing particularly isolated about wages or salaries arising from employment in this connection. We should not make any such fine distinction. In the interests of facilitating the machinery of the Bill as a whole we could use these attachment proceedings for other types of income. We are not strictly confined to wages or salaries paid by an employer. We could all think of situations where a maintenance debtor would have a fixed type of income, a reasonably stable type of income, which would not arise from employment but would be of a regular nature and would be income, not capital. This would be suitable to be brought within the scope of the attachment proceedings. I do not think we should have this sort of academic distinction of having attachment proceedings capable of being related only to earnings arising from employment. I can see the Minister's difficulty in not wishing to make attachment proceedings applicable to capital sums. In any case where there are irregularities of unearned income, why should we not apply these attachment proceedings to it if possible?
The remedy proposed is to deal with an area where the remedies already available were not adequate. By and large, the only effective remedy in the case of wage earners of moderate means was the ultimate sanction of imprisonment. It was clearly an inadequate remedy because there was no point in putting the husband in gaol; that did not improve the wife's position. The remedy that has been proposed is to get over that and to provide a means to attack what would be the normal income, the husband's earnings, from which he would have to pay the normal items covered by maintenance. That is what the Bill is after: to cover a situation where there would be no other effective means of enforcing the order except imprisonment.
The other type of person we are talking about is the self-employed person or the person living on unearned income. If he does not fulfil his obligations, we have to consider the effectiveness of these sanctions against him, other than attachment. It is reasonable to assume that the resources which would be available would be greater than the weekly wage. If there is an unearned income coming in, it probably represents a capital sum. If it does not, it may be coming from an annuity payable by somebody else. Again we would be thrown back to examining the terms of the deed creating the annuity. We would get into a complicated legal area if we attempted to attach that sort of income. Apart from that, the remedies that would be available to a maintenance creditor in respect of that sort of income would be sufficient to ensure compliance with the maintenance order. Certainly I think when you would balance the remedy that would be available against the possible complications of trying to attack that sort of income, I would be happy to rely on the existing legal remedies.
Let us take the case of a person who has an allowance, who is paid a regular allowance. It is not earned; it does not arise from any employment. It is an allowance in relation to an annual income made to somebody by a parent or a trust fund. It is a regular, ascertainable sum of money coming in the form of income. Take the case of somebody who has come to this country as a student and who is made a regular allowance by a parent living abroad. At the moment the attachment proceedings cannot apply to that because it is not earnings arising from employment, but it is a regular income. I do not think it is very difficult to visualise cases where it would be desirable to have these attachment proceedings applicable in those cases as distinct from making the spouse go through involved legal procedure. If there is a nice income which can be clearly identified as a regular income, surely we should provide that this new convenient and handy mechanism could be invoked in that sort of case.
I do not think the case the Deputy has quoted is a good one because the person to whom the attachment order would be directed would be out of the jurisdiction. Again, when one starts to think of instances where this might arise, invariably these will be annual payments—annuities arising under trusts or settlements of one sort or another, money coming to the hands of trustees for the beneficiary. You get into a tricky legal area if you attempt to interfere, as one would be interfering, with the money coming to the hands of the trustee. The court interferes with the money coming to the hands of the beneficiary by making a maintenance order, and that is fair enough. But if we were to go further and try to attach that money in the hands of the trustee, we would be getting into a very difficult legal area.
No, I would be concerned only where money is paid regularly in the form of income.
This is precisely the type of case I am talking about—an annuity or a regular income under a trust. The point I want to make is that instead of using attachment proceedings, all the existing legal remedies would be available. I do not think there would be need in that type of area for an attachment order. I think, quite frankly, that an attachment order is not a suitable type of order to deal with that type of income. The income is coming to the maintenance debtor perhaps by virtue of the trustees' discretion or, at all events, from something extraneous to himself over which he has no control, in contrast to his earnings, which he can earn by his own capacity, and are exclusively his funds, trust incomes would have an element of something beyond his control.
Perhaps it would be ideological to accuse the Minister of going after the working man and letting the multi-capitalist go free.
I am saying here that those classes should have the old remedy used: put them in jail. That would be a much more effective remedy for that class of person.
I am glad I raised that.
It does not cover the case I mentioned the other day when we were discussing the definition of earnings. It does not apply in the case of people like waiters, a major portion of whose income could be from tips.
It can. An application could be made under this section for a declaration that gratuities, bonuses received in the course of work, would be deemed earnings.
The definition section refers to " other emoluments payable in addition to wages or salary."
How is the employer to establish what tips a waiter is going to get?
We had the Revenue Commissioners before this.
It would be very hard to assess the actual tips they get.
That is what I am saying.
You could assess the 12½ per cent service charge on the bills. That would be a substantial sum.
I think that where tips are pooled it might be ascertainable in that way. Again, the maintenance creditor would find herself in the same position vis-�-vis that type of person as the Inspector of Taxes finds himself in regard to a self-employed person. He cannot put his finger on every penny.
You will probably say you are getting 15 per cent and it cannot be proved otherwise.
The wife could have a case too. She could allege tips by virtue of section 14, that a certain income received by way of tips is earnings. If she did that, it would be a means of driving the debtor into the witness box for examination.