Senator Bacik’s amendment to the Enforcement of Court Orders (Amendment) Bill introduced.
Enforcement of Court Orders (Amendment) Bill 2009 – the bill providing for a new procedure to enforce debts through the courts.
Currently, it is possible for debtors to be sent to prison where they do not pay a debt once ordered to do so by the courts. The new bill follows from a High Court case (the Caroline McCann case) where Judge Laffoy ruled on
On Tuesday 7th July, when this Bill was introduced, I spoke in favour of a more radical approach that would have ruled out prison as an option for non-payment of debt and instead introduced other sanctions, like attachment of earnings orders or community service orders. This was the approach recommended by FLAC, the Free Legal Advice Centres, in a report they published on the topic earlier this week.
However, the Minister indicated that he was unwilling to introduce a more radical bill as he is awaiting the publication of recommendations by the Law Reform Commission on overall reform of the debt recovery process.
Despite my opposition to the retention of prison as an option for non-payment of debt, having been briefed by FLAC on improvements that might be necessary, I moved an amendment to this Bill on Tuesday evening.
This amendment was aimed at ensuring that debtors who receive a summons requiring them to appear before the District Court following non-payment of debt would be given information in that summons about the options available to the District Judge at the hearing, including the option of varying the number and level of instalments they would have to pay in repaying the money owed. I also said that this information should be provided ‘in ordinary language’.
At first the Junior Minister John Curran rejected this amendment, and I called a vote but was defeated. However, the next day Wed 8th July at Committee Stage, Minister Dermot Ahern introduced an amendment with a wording based on my amendment, with the same effect. A great result which will provide an improved level of safeguard for debtors facing the possibility of imprisonment!
See below for Minister Ahern’s speech introducing the amendment, and my response:
Deputy Dermot Ahern: As I mentioned in dealing with Senator Regan’s amendment, in light of discussions yesterday, we talked overnight to the Attorney General on this. There were two helpful amendments from Senators Bacik and Alex White and we have incorporated the main points made in those into this amended paragraph. New paragraph (c) provides that the summons will set out in ordinary language the options available to the judge of the District Court under subsection (7). This will include the variation order and the mediation option. Paragraph (d) is the old paragraph (c) unchanged, merely renumbered. Paragraph (e) is the old paragraph (d) with the proviso “unless the judge of the District Court directs otherwise” inserted. This will enable the court to make directions as to other service options if the summons cannot be served. I am satisfied that these small changes are warranted and I thank the Senators for their assistance.
Senator Ivana Bacik: I am very grateful to the Minister for accepting my amendment from yesterday and acknowledging that in his speech. I put the amendment on Committee Stage last night and we voted on it. The Minister of State, Deputy Curran, indicated he could not accept it but I am delighted there has been a change of mind overnight and that it has been accepted. This is an important principle and I am very grateful to the free legal advice centres for advising us all in a briefing paper of the need to ensure information is provided at an early stage to a debtor of the consequences of a failure to appear and of the possibility that a variation could be made to an instalment order. We had a lengthy debate on that last night.
I am delighted the Government has accepted the amendment I proposed and the principle behind it. Its wording is more elegant than mine was, given that mine was rather rushed, however the basis of it is the same. At paragraphs (c) and (d) the new provisions ensure the summons served on the debtor at the first stage in the process will provide information to the debtor in ordinary language of the options available to the judge of the District Court under subsection (7) at the hearing of the summons.
In my amendment I had said the information that should be provided in ordinary language was that the debtor could seek a variation of an existing instalment order. This is fuller, and it emerged during the debate last night that all the options available to a judge at the hearing of the summons should be outlined to the debtor in ordinary language. The Minister had expressed the view that it might be unbalanced to tell the debtor about the possibility of a variation application. I contested that and said I did not see why the debtor would be told of the sticks, the possibility of arrest and imprisonment, but not the carrots, the possibility of variation and mediation.
The policy behind this legislation, with which we all agree, is to ensure a higher number of debtors appear before the court and that they are encouraged to appear before the court with a view to escaping imprisonment and ensuring there is some payment of the debts owing to the creditors. I did not see there was an issue of balance and it seemed entirely appropriate that debtors would be given all the information at the earliest stage in ordinary language about the nature of the District Court hearing and that this would encourage them to attend.
Fewer than one in five debtors engage with the court process, according to Courts Service statistics, so it is in the interests of debtors and creditors and the public good that they are encouraged. The summons should also state that the debtor may be arrested if he or she fails to appear before the District Court. That was already in the legislation and it is very important. The amendment put forward by Senator Alex White, that there should be provision for the judge of the District Court to direct otherwise and by personal service, was also accepted.
I very much welcome the Minister’s acceptance of my amendment. I am delighted the carrot will be incorporated into the summons as well as the stick. It is important we have it in the legislation. The Minister of State, Deputy Curran, indicated yesterday that an information leaflet might be provided but it is far more important that the information is there in the summons for a debtor to see very clearly at the earliest stage possible. Hopefully we will see more debtors appearing before the court and engaging with the process.
The FLAC report that came out this week points out that the sanction of imprisonment should be removed immediately for those who are unable to pay their debts, and this Bill addresses that in a very welcome way. To nobody’s credit, FLAC also recommends the State should move towards the removal of imprisonment as an option in debt cases and should look instead at effective non-penal remedies to be employed for non-payment of debts, not just where people are unable to pay. That is the broader reform I would like to see, and this Bill, unfortunately, does not address that. While it is very welcome in that it ensures, as far as possible, that people are not imprisoned for inability to pay, it still allows for people to be imprisoned for non-payment of debt.
Having said that, I am delighted to have my amendment accepted. I am delighted debtors will henceforth be given information in ordinary language in the summons about the options available to the District Court judge at the hearing of the summons. That is a very important and welcome improvement to the Bill.