Amicus Curiae - Civil Debt
McCann v The Judge of the Monaghan District Court & Others (June 2009)
In January 2009, the IHRC applied to the High Court to appear as amicus curiae in this case and was granted leave. The case concerned a single parent with two children dependent on social welfare, who faced imprisonment for inability to pay a contractual debt in circumstances where she was not present or represented when the District Court ordered her arrest and imprisonment. The Plaintiff sought to strike down the provision dealing with the enforcement of civil debt (section 6 of the Enforcement of Court Orders Acts 1926 and 1940), on the basis that it was unconstitutional and further that it was not compatible with the State's obligations under the European Convention on Human Rights. The case was heard over 3 days in May 2009.
The IHRC's submissions (written and oral) were directed at two main issues:
- the right to a fair trial and fair procedures (including the characterisation of the relevant proceedings as civil or criminal) where the liberty of the individual is at stake.
- the international principle of the prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation. As such, IHRC submissions cited both the ECHR and the International Covenant on Civil and Political Rights (ICCPR), in addition to comparative law. The IHRC argued that these conventions should inform the Constitutional interpretation which it also set out. Among other things, the IHRC's written and oral submissions to the Court drew attention to the Concluding Observations of the Human Rights Committee on the State's Third Periodic Report under the ICCPR in 2008.
In June 2009, Ms Justice Laffoy delivered a significant Judgment, finding that the current system for enforcement of civil debt (section 6 of the Enforcement of Court Orders Acts 1926 and 1940) was unconstitutional as it did not secure fundamental rights under the Constitution: the right to fair administration of justice (Article 34); the guarantee of fair procedures (Article 40.1.3); and, the right to personal liberty (Article 40.4.1).
The Court found that a person facing imprisonment for non payment of a civil debt should be treated in a similar manner to a person facing a criminal charge in terms of some of the safeguards that should apply to the judicial process. The Court stated that there are three fundamental constitutional rights that must be secured:
- the person (the debtor) should be in court to represent themselves unless he or she consciously decides to absent themselves;
- the Judge should apprise the debtor of his or her entitlement to legal representation, and the debtor should be provided with legal aid if they cannot afford legal representation otherwise, and
- the Court, in applying fair procedures, should not make an order for arrest and imprisonment unless satisfied that failure to pay the debt is due to wilful refusal or culpable neglect of the debtor (the burden of proof not being on the debtor to show this absence of wilful refusal or culpable neglect).
It was found, however, that the current system for enforcement of civil debt does not secure these fundamental rights. In relation to the right to liberty, the Court found that the legislation in question was a disproportionate interference with this right in that it was not rationally connected to the objective to be achieved (payment of the debt), it did not impair the right to liberty as little as possible (such as by providing a mechanism to attach earnings where the debtor has some resources) or for the creditor to go through certain procedures). The Court expressed the view that the provision was largely futile in securing any remedy for the creditor, and costly for the State insofar as it would bear the cost of the court proceedings and the imprisonment of the debtor.
As the Court found that the legislation in question (section 6) was unconstitutional, and therefore of no further effect, the Court did not view it as necessary to go on to consider whether it was incompatible with the ECHR. Nonetheless, the Court did give consideration to the case law of the European Court of Human Rights in relation to Article 6 (right to a fair trial), Article 5 (the right to liberty), Article 1 of Protocol 4 (non-imprisonment merely on grounds of inability to pay a contractual debt) together with jurisprudence from the South African and Zimbabwean Constitutional Courts in relation to imprisonment for civil debt, to inform its final decision. It also took note of the recent exchange between the State and the UN Human Rights Committee on Article 11 of the ICCPR and the Concluding Observations of the Committee on the State's obligation not to permit imprisonment merely for failure to fulfil a contractual obligation, to which the IHRC had drawn the Court's attention.
The State Defendants decided not to appeal the case but to enact emergency legislation to seek to remedy the situation while deeper structural reform of the debt recovery system was considered.
Accordingly, the Enforcement Of Court Orders (Amendment) Act 2009 was enacted in July 2009 which in a number of respects remedied the specific gaps in the law identified in the Court's Judgment.