There are some things that improve with practice and revision; dance routines, manuscripts, driving, piano playing among others but not law. Law when enacted should be the very best it can be. ‘A suck it and see’ approach is not advisable. A ‘let’s start here and see where we end up’ is not advisable.
A ‘this is getting better’ is not a good start or rather it is a good start but not good enough to be put into law. We need law to be as precise and as finished as possible. We know this for it takes a long time to bring in new law. We know this for law has a direct impact on the population. Law is very powerful. It regulates how we live, punishes wrong doers and can dramatically impact the lives of citizens. It needs to be good law the first time around. The very best law we can create because the possible negative impact of bad law has huge ramifications from unfair or unjust rule right the way through to unwieldy and costly law suits for wrongful justice.
Last year as I waited for the new insolvency laws to come into practice I was right at the top of the queue to avail of its rulings. My case was simple. My husband and I had borrowed money on our family home, worth €1.5million. I had then been thrown into divorce and recession. My ex returned to the UK and became bankrupt leaving the entire debt (€800,000) to me and our two children. I tried to sell my home and secured a cash offer of €500,000 (reflective of the new falling price of the home) but the banks refused consent to sell. They preferred to repossess the home and sell it for less than €170,000. I was left with an unsecured loan of €1million (including arrears), no possessions and no income. I queued up to avail of the new Insolvency Service but to my horror I was too broke to even enter the hallowed doors. What kind of crazy thinking was behind the institution of an insolvency service that could not cater for the truly insolvent? Was it simply set up as a gentlemen’s club for the mildly financially incapacitated who could afford to employ expensive financial advisers? It would appear so as we hear weekly court cases where rich individuals argue to maintain their standard of living, their houses, their cars, their private schools and their holiday homes. Last year a certain high profile insolvency expert was castigated in the media for arguing that certain ‘types’ should be allowed stay in their large family homes as it was reflective of their position in society and their profession. Public retractions followed this little storm in a teacup but the truth was out there.
Further investigation of the Insolvency Service showed other obvious flaws. The banks had veto over any potential deals; which fact is reflected in the tiny number of deals done to date. Applicants have to avail of a personal insolvency practioneer, a PIP, and these are all private and can charge whatever they want. The going rate is around €3000 but there is no guarantee a deal will be done – as per the above veto. In fact, I sat next to a man going bankrupt who had paid that sum only to have his deal thrown out; he was then forced into bankruptcy after all. Then all applicants, whether they go through with the process or not, are named and shamed in a public list. When has there ever been a need to publicly know an individual’s credit rating? And finally, an individual has to have money to enter these proceedings. ‘Another fine mess’ as Laurel might say to Hardy.
‘Another fine mess’ as Laurel might say to Hardy.
Only it gets worse. The ISI has now written to the 140 PIPs in Ireland outlining another flaw; this time the existence of another mistake, this time giving greater than intended powers of veto to minor creditors. This mistake is significant and opens the door to potential lawsuits for those who may have been disadvantaged by this error. The PIPs have been advised to delay all proceedings; court or negotiations, until the Dail resumes and this mistake can be fixed.
When I was not able to use the Insolvency Service and was forced into bankruptcy, I discovered many flaws there too. True the punitive twelve year sentence was reduced to three, but I was told forcefully that if I obtained any work up to and including the last day of my sentence, they would slap a further five year judgement against my earnings, in effect creating an eight year punishment and a total disincentive to getting back on my feet again.
I met a friend as I entered my bankruptcy and he tried to comfort me. ‘It’s getting better,’ he said. That’s when I knew getting better was not good enough. It’s time to make good law the first time out.