Wednesday 20 November 2019

Dearbhail McDonald: There's little reason to fear a 'public' list that's not really out in the open

Dearbhail McDonald

Dearbhail McDonald

PUBLICITY, Jeremy Bentham said, is the soul of justice, vital to secure against abuse of power or the creation of new opportunities for abuse.

Publicity is also a powerful gizmo in the very brimming box of tools at the disposal of lenders in their dealings with distressed borrowers.

The fear of publicity and the potential professional consequences of having their debts exposed have forced many sensitive debtors, including judges, lawyers, accountants and TV personalities, to seek out-of-court arrangements with their creditors.

Publicity also deters mere mortals who don't want their personal financial woes to be circulated as powerful gossip in this valley of squinting windows.

For a very small cohort of debtors, publicity about their debt could potentially place them at risk of harm or leave them vulnerable to financial bribery, aka corruption.

This is an argument occasionally raised in the case of gardai and other security sensitive workers, including prison officers, and social welfare or revenue officials, whose indebtedness could prove invaluable to criminals seeking to exploit weaknesses in the apparatus of the State.

For gardai, the problem is somewhat acute as we still have no formal clarity from the Government about the potential disciplinary impact of any arrangements under the new Personal Insolvency Act, which creates a mandatory public register of debtors.

Under the 1998 Bankruptcy Act, judges can direct that the whole or any part of a bankruptcy matter can be heard in private. But no such provision is contained in the personal insolvency legislation.

Judges also have an inherent jurisdiction to hold hearings in private, but circumstances must be exceptional before the courts hold hearings otherwise than in public.

The Government has confirmed that there is no discretion for the Insolvency Service of Ireland (ISI), which maintains the debt register, to remove a borrower.

This is manifestly in the public interest, to ensure transparency in the operation of the act.

But this being Ireland, we have created our own version of a transparent register which, unlike the UK, cannot be searched online. Instead, members of the public have to haul themselves to Dublin (armed with little or no information) and physically inspect the hard-copy Irish register.

It's transparency, Irish style, so maybe indebted gardai have little to worry about after all.

Irish Independent

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