THE GOVERNMENT is drafting legislation that will allow the courts to imprison debtors who have the financial means to pay their debts but refuse to do so.
This follows last week’s High Court ruling on financial debt that found that it was unconstitutional to commit a person to prison for the inability to pay a debt.
Minister for Justice Dermot Ahern said yesterday that the Government had approved the drafting of a new Bill which will amend the Enforcement of Court Orders Act (1940).
Under the new law, those without the means to pay their debts – such as Caroline McCann, the unemployed mother of two who won last week’s High Court case – would not face the threat of prison.
Officials say the Bill will be drafted within days and will complete its passage through the Oireachtas before the summer recess.
Mr Ahern said provisions in existing law relating to imprisonment were used sparingly in relation to debt enforcement.
“I think it is important for the sake of small creditors and especially for family law maintenance disputes, to bring certainty to the current situation, while taking account of the High Court’s view that people who can’t afford to pay shouldn’t be imprisoned. These amendments will achieve that and I am satisfied they are warranted.”
In last week’s High Court case, Ms McCann challenged the power of a judge to send her to prison for not paying money she owed to her credit union.
Ms Justice Mary Laffoy ruled the relevant law – section six of the Enforcement of Court Orders Act – breached Ms McCann’s rights to fair procedures and personal liberty under the Constitution.
Last week’s ruling was a test case with implications for others in similar situations. It is estimated that hundreds of such imprisonment orders are made annually by the courts.
The Courts Service wrote to each chief district court clerk last week stating that no further committal warrants were to be issued under the relevant section of the law.
Yesterday at Mullingar District Court Judge John Neilan queried whether orders for repayments themselves were “a nullity if they cannot be enforced”. He remanded a total of 24 committal and enforcement orders to the end of November.
In a statement, Mr Ahern said the new legislation – to be known as the Enforcement of Court Orders (Amendment) Bill 2009 – would ensure that if a debtor does not appear in court, a summons can be issued.
This, he said, will enable the court to hear the debtor and satisfy itself whether all steps possible, including instalment payments and mediation, have been taken to recover the debt.
“The court will not imprison the debtor unless it is satisfied that she/he has the means to pay. There will be a provision for legal aid in circumstances where the debtor is at risk of imprisonment,” Mr Ahern said.