Proposed legislation on debt enforcement leaves "a mountain of reform left to climb"
6 July 2009
Legal rights organisation FLAC has welcomed the proposed changes to legislation that allows debtors to be imprisoned for failing to meet court-ordered repayments, but warns that this is "only a very small step on a mountain left to climb for reforming Ireland's woefully outdated laws in this area."
The changes in the Enforcement of Court Orders (Amendment) Bill 2009 will:
- In some circumstances, put an end to the imprisonment of a debtor in his/her absence;
- Alter the onus of proof in these cases so that it is now for the creditor to establish that the debtor's failure to pay instalments was neither due to wilful refusal or culpable neglect;
- Provide for the possibility of some legal aid for a debtor facing an application for his/her arrest and imprisonment for failure to pay court ordered instalments on a debt.
FLAC particularly welcomed the proposal whereby creditors will have to show that debtors who may be liable for imprisonment could pay, but are refusing to do so. It also welcomed the proposal where the judge can direct that mediation take place. However the organisation says that there are many problems left untouched in the existing process of debt enforcement.
"The Bill only addresses the last step in what is a complex procedure that takes place in open court and which is need of comprehensive reform generally. FLAC's new report, To No One's Credit, proposes a wide range of recommendations for change in this area," explained FLAC Director General, Noeline Blackwell. The report was published on Monday 6 July.
FLAC has also raised a concern on the wording of the Bill. "By our reading of the legislation, the discretion a judge would have on whether a person is to be forced to come to court may mean that in fact that person might still be imprisoned in the same way as Caroline McCann, even after the proposed legislative change," cautioned Ms Blackwell.
- FLAC (Free Legal Advice Centres) is an independent human rights organisation dedicated to the realisation of equal access to justice for all. It campaigns through advocacy, strategic litigation and authoritative analysis to contribute to the eradication of social and economic exclusion.
- The Enforcement of Court Orders (Amendment) Bill is scheduled for discussion by Seanad Eireann on Tuesday 7 July 2009 and later in the week by Dáil Eireann. The emergency legislation was introduced following a finding of Mrs Justice Laffoy in the High Court that s.6 of the Enforcement of Court Orders Act 1940 was unconstitutional. FLAC has circulated a briefing document to Senators on the Bill as initiated. A copy of the briefing may be accessed at http://www.flac.ie/download/doc/09.07.02_briefing_paper_on_enforcement_of_court_orders_bill_2009.doc
- FLAC's report on debt enforcement in Ireland including the debtor's perspective was launched on 6 July 2009 by singer/songwriter Mary Coughlan. You can contact the FLAC office for a hard copy or download the report in PDF format from the FLAC website at: http://www.flac.ie/download/pdf/to_no_ones_credit_june09.pdf
- The executive summary is available in hard copy from the FLAC office or to download at: http://www.flac.ie/download/pdf/to_no_ones_credit_executive.pdf
- A press release on the launch is online at: http://www.flac.ie/news/2009/07/06/new-report-proposes-farreaching-changes-in-how-justice-system-treats-debtors/