Dáil Éireann debate -
Tuesday, 31 Mar 1981

Vol. 328 No. 3

Malicious Injuries Bill, 1980: Committee Stage (Resumed).

Question again proposed: "That section 5, as amended, stand part of the Bill".

Mr. Keating

I have a small point to make in relation to subsection (3) of this section. The basic objection of Members on this side of the House last week to the cut-off point or the minimum figure applies here also. This is the question of the £100. Our argument of course, would be, that the opportunity for claims should apply to any amount. There is no justification, morally or otherwise, for limiting the actual jurisdiction, as it were, under the section.

When goods are stolen the loss is frequently greater than when property is damaged. Is there not therefore a case to be made for applying the Act to goods stolen? The Bill does not allow for the recovery of such loss and it seems to us to be unjust that such a situation should be created. We argue that the section should be reconsidered in that respect.

Minister of State at the Department of Justice (Mr. Doherty)

As I said the last day, it is not proposed to make an alternation in the Bill which would eliminate the cut-off point. I justified the Government's action when I suggested that the £100 cut-off point proposed is in excess of the £5 which was fixed in 1898. I pointed out also that this limit will be examined in the light of changes in the value of money.

Mr. Keating

We made this point on section 6, but I do not recall the Minister answering it in relation to subsection (1) of this section which deals with the number of people who have to be together, tumultuously and riotously assembled, and causing the damage. Where fewer than three people are so gathered together to cause damage the owner of the property is liable to lose out. Obviously that is wrong. If two people inflict malicious injury or damage it is a matter of no consequence to the person who suffers the loss whether there were two, three or more people involved. Three or more people is derived from the definition of unlawful assembly in common law and there does not seem to be any logical or just basis for it here. At the worst it should be reduced to two people — I do not think you could have unlawful assembly of one — but the loss suffered is the same and the entitlement to compensation should not have any relationship to the number involved, which in these circumstances is irrelevant.

To my mind it would be more difficult to prove that malicious damage had been caused by three or more people. One person might be apprehended and convicted although it was known that other people were involved. When one person admits that he or she was involved in inflicting damage, that should be adequate, but it is not in the Bill. What does the Minister feel about that?

Coming back to the cut off point of £100, I honestly cannot accept what the Minister said. Since we discussed the matter last week I made some inquiries and I understand there are significant numbers of cases of malicious damage of about that sum or less. Unfortunately, such damage is inflicted on people who were less able to afford it, the kind of persons who are likely to have less property to be damaged. If you have an elderly or an old person whose home is attacked, whose doors are kicked in or widows broken, it is most improper to disentitle such a person in regard to compensation. Such people are debarred from even applying for it.

I am sorry to say that once again we have here a Bill clearly giving advantage to those of property and strength in the community. It is unjust that the ordinary person will not have access to the law. Why should a person be forced to suffer loss without compensation because the amount is less than £100? That sum could be the difference between life and death; it could certainly cause great hardship to people of that kind. What is an old woman to do if her windows have been broken in? Why should she have to replace them herself? It is not adequate to say that this anomaly has been in the law up to now. I accept that perhaps it is not any worse now, but it is fundamentally wrong that any damage inflicted maliciously should not be open to a claim for compensation. The cost of administration is a secondary matter which does not have direct relevance to the question of giving justice to people.

Apart from anything else, this provision can have the effect of encouraging the inflation of claims. In other words, a person who has a claim for £80 or £90 can inflate it to more than £100. Here we are creating two-tier justice. People with less property are far less able to bear small losses than those with large properties. I do not advocate it, of course, but if there is to be distinction drawn it should be in the reverse direction — people with substantial property and standing might be entitled to less compensation. If we accept the idea of malicious damage being compensated for we should accept it without this type of insidious and unjust discrimination. Earlier the Minister said he would consider this before Report Stage. If he said so I accept he will do it in this respect, but I suggest he should also do it in relation to subsection (1).

The Bill in relation to goods being stolen is important. The loss suffered can be just as great as damage done to property. It is no answer to say that a person should be insured against such loss. I would think, therefore, that we are retaining anomalies that we should have the guts to get rid of. It is quite wrong that a person with very little means who suffers the loss of £80 or £90 worth of windows or doors finds that he is unable to claim at all while somebody else can claim damages of £120 or £150. Both of those two points are fundamental to this section and I do not think we can let them go lightly. I would appeal to the Minister to reconsider his attitude in these two respects at least.

Mr. Doherty

As I have previously said, I will give consideration to this matter on Report Stage. Deputy Keating should know also that section 25 will indicate that the amount of £100 can be varied by Ministerial Order, and not necessarily upwards; it can be varied downwards in certain situations that might require that that be done. At the moment I am satisfied, subject to further examination, that what is prescribed is satisfactory and will meet the vast majority of cases equitably. On the question of obtaining compensation, I am also satisfied that there are other channels that people can use in this regard. By that I mean the right of people to insure their property.

In relation to three people comprising riotous, tumultuous assembly, this does not in any way preclude an injured person from seeking compensation where only one person is involved. The fact that three people are involved would clearly indicate that there might have been an attempt in the first instance to intimidate or to use an unusual amount of violence against a person or against property. The definition of riot calls for three persons. It is the only situation in this Bill where there is an additional compensatory feature, that is, under section 6, loss resulting from riot can be compensated for. The fact that three people must be involved for the purposes of the definition of riot as we know it at common law does not do any more than clearly reflect the aggravated attack or aggravated type of malice that would be entered into. The fact that one may be involved simply means that it is not a riot but there is no question of any person being denied his right to compensation just because of the number of people involved. I hope that clarifies the point.

Mr. Keating

Before we leave that, would the Minister be willing to comment on the request I made in relation to the possibility of application for compensation in respect of larceny? There are times when the loss suffered by somebody as a result of having goods stolen can be as great or even greater than the loss suffered when the property is damaged. It seems logical that it should be open to compensation as well. For example, there may be circumstances where a person's car is stolen and is subsequently found semi-vandalised. It may be that the person would be better off if the car had not been found at all because then he would be entitled to compensation under the fire and theft clause of his insurance policy whereas, if the car is found again and is badly vandalised he is not entitled to such compensation from the insurance company. With the delays in getting payments of compensation from the local authority, he is worse off than if the car had not been found. That seems extraordinary and there seems to be a problem here. I wonder if the Minister will comment on that aspect of it.

Mr. Doherty

I feel that to extend the area for which compensation can be claimed to include larceny would be unnecessary for a number of reasons, apart from the fact that we must be realistic. Deputy Kelly said the last day that I made the point that consequential loss was not being prescribed for in the Bill because we did not have the necessary finances. The State, like every other organisation, has limited resources and we must ensure that they are used wisely and with the greatest possible effect accruing from the manner in which they are spread around. Even if it was not unnecessary to extend the area to include larceny it certainly would be premature to do so. We have gone quite a considerable distance in section 6. The inclusion of property unlawfully taken in a riotous situation from certain areas is new and extends the scope of compensatory cover over a very wide area. The phrase "unlawfully taken" does not necessarily cover larceny but, to some degree, it would cover the larceny of property in a certain context where a riot occurred.

Mr. Keating

Does the Minister see an anomaly in the situation where someone whose car has been stolen would be better off if the car were not discovered? It so often happens that, having recovered the car in a semi-vandalised state, the person claims compensation for malicious damage and finds that after waiting two years he gets only part of his claim. There are times when both the idea of theft of property and the consequential losses are, in effect, aspects of the malicious damage or loss suffered by the person. To be logical and consistent, we should not build into a Bill aspects of law which almost invite people to exaggerate the circumstances of the unfortunate occurrence in order to ensure that they will get malicious damage compensation. If a person finds that his means of livelihood, say, a van or a lorry, is stolen and vandalised or put off the road, he is entitled to compensation for the loss incurred but not for the loss of earnings arising therefrom. I do not understand that logic. The Minister has said that it is not necessary to include larceny but he did not justify that statement. He said also that the State's resources have to be expended wisely. That is fair enough. But if budgetary considerations or financial policy are dictating what is included, then let us say so. I want to argue on the grounds of natural justice that it is reasonable to request compensation for losses arising from the malicious infliction of damage or injury along with compensation for the damage caused to, for example, a vehicle.

I disagree fundamentally with the Minister on that point. I think it is quite wrong that when two people suffer the loss of their car, one person's car being recovered, the other person's car not being recovered, the second person is the one who suffers becaused his car has been vandalised, is off the road, requires all kinds of repairs, and it takes a couple of years to get the money back. People have almost a vested interest in not recovering the car. That is wrong. Likewise in the case of a man who drives a lorry for a livelihood, his lorry is stolen, put off the road by vandals and perhaps he has to wait for a month or two until a part arrives which is needed to repair that lorry. He loses £100 wages per week. He cannot claim for anything. That also is wrong. Therefore, whatever has been done up to now is not appropriate.

I have a basic reservation about the question of the cut-off point of £100. I am pleased the Minister has agreed to reconsider that. Perhaps we will have a review of the situation on Report Stage which will bring equal justice for everyone in that respect.

I want to state our disagreement with the Minister in relation to the question of larceny and the question of consequential loss, both of which seem to be rightly the area within which a claim could be made in some circumstances, in respect of which in this Bill no opportunity arises, regardless of hardship and the fact that both of them arise directly from malicious injury, deliberately and wantonly inflicted. This Bill rules out the possibility of such a claim.

Section 5, as amended, agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. Keating

A lot of the same arguments apply to this section. I will not repeat them. The question of consequential loss arises in subsection (4). The same arguments apply. I find subsection (2) a little wordy. It reads as follows:

For the purpose of subsection (1), damage shall be taken to be maliciously caused only if caused — (a) by a wrongful act done intentionally without just cause or excuse, or (b) wantonly,...

I urge the Minister to beware of too many negatives. If an act of damage is maliciously caused only if caused by a wrongful act intentionally, that is adequate. I do not understand how you can have a wrongful act done intentionally with just cause. That is probably more in the area of semantics than law. These matters should be reasonably legible to the layman as well as the lawyer.

Mr. Doherty

On that point, it would be fair to describe an act done wantonly or intentionally as a malicious act done recklessly or without due regard to the consequences which it would inflict. The section provides something new for the first time in Irish law. Heretofore, the English Riot Damages Act, 1886, provided for compensation for the unlawful damage to property or loss which occurred in certain situations in a building or within the curtilage of that building. The Criminal Damage Compensation Act Northern Ireland Order, 1977, also applies. It is a new departure for us and greatly extends the scope in the area of compensation, together with the fact that larceny, if it occurred during the course of a riot, from a building or from a yard surrounding the building or attached to it, within the curtilage of the building, that property could be compensated for under this new provision.

Mr. Keating

Subsection (2) seems to suffer from a plethora of words.

Mr. Doherty

I have explained why the words "wantonly" and "intentionally" should be used.

Mr. Keating

Without just cause. How can you have a wrongful act done intentionally with just cause?

Mr. Doherty

You could have a situation where the person committed the act recklessly and without any regard for the consequences of that action.

Mr. Keating

It would not be a wrongful act in that case.

Mr. Doherty

A wrongful act and a malicious act and an act done wantonly — with a recklessness that throws to the wind and totally abandons the consequences of the infliction of damage which could occur as a result.

Mr. Keating

I will not pursue it. I just want to make the point that, wherever possible, we should write the law as clearly as possible, so that the layman can understand it, because it is about the people, not about the lawyers.

Mr. Doherty

Two laymen are discussing it this evening.

Mr. Keating

Very often the language used in legislation is very stilted. This is a case in point where the same concept is repeated in four different ways. However, I am only making the point in passing.

Question put and agreed to.

Section 7 agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. Keating

The preliminary notice in section 8 (2) in which we talk about a person seeking compensation under the Act shall, within 14 days after, as the case may be, the damage was caused or the property was taken, serve, in accordance with this section, preliminary notice, in such form as may be prescribed by regulations made by the Minister, of his intention to apply for compensation. I wonder if that notice might be published in a newspaper circulating in the area. Would there be any merit in such a proposal?

Under Section 10 (2) a ratepayer shall be entitled to appear at a hearing. If the application is not published, there does not appear to be much benefit to the ratepayer by giving him this right. How is the ratepayer expected to know that he or she is entitled to be present at such a hearing if there is not some way of communicating this to the general public? I am talking about a provision which would be analogous to the statutory requirement in relation to planning applications which should be included in the local newspapers. It would bring home to the community the fact that they are paying for malicious damage. Sometimes this is lost sight of. It is money which is being taken from classrooms, hospitals and all the services which are needed. Therefore, regular publication of notices in local newspapers, and national newspapers where appropriate, indicating that these hearing were going to take place and that the ratepayer was entitled to attend would not just be sound from the point of access by the public but would be very good public instruction. Nobody will forget that this erosion of standards is going on and that they are paying directly for it. Therefore, the Minister might like to consider that point. I agree that the preliminary notice should be served within 14 days. I think it is seven days at present. The shortness of the time is, presumably, to ensure that bogus applications are not made.

However, I am often troubled by these provisions. I have argued many times that there are many circumstances under which it is impossible for a person to make an application within the deadline. There are some people who are not as au fait as others with the exigencies of the law in this respect. If a person is entitled to claim malicious damage, it is very wrong if he or she should be subject to loss merely because he or she, for good reason, did not complete the application within a week or two. If a person has a claim it should be open to being lodged within the statute bar limit of six years. It is not as if one would have a vested interest in delaying the application to get inflated compensation, because if a person decides not to claim for two years that is his problem. He will get the real value at the time of the incident, not the current value or the updated value due to inflation.

There are cases where a person has lost a malicious injury claim because he did not fill up an application form. He might not be able to read, he might not know to whom to go, he might be in hospital, sick or injured, he might be out of the country when the property is being damaged, he might forget about it, or he might be suffering another loss or trauma. These people are being deprived because they have not filled up the forms.

I would like to be clear if we already have provision for the extension of time particularly in cases where people are in hospital or are sick.

I understand that the Court, under the present law, has power to extend time under the Damage to Property (Compensation) Act, 1923, section 21 (2), and one or two other appropriate legislative measures. In case of doubt and in order to ensure that we are encouraging equality of access to law, not giving it begrudgingly after somebody has gone through the rigour of getting a Court adjudication to grant an extension of time, I believe there is a case to be made for putting this provision into this Bill so that the time can be extended.

The following words might be appropriate — that the powers of the court shall include power to extend or vary the time prescribed for doing any act pursuant to this Act, including the taking of any proceedings in relation to the application in any case where it appears to the judge that such extension or variation is just and reasonable.

That would mean that if someone had wantonly, to use the Minister's word, or had been involved in a wrongful act unintentionally without just cause or excuse, such person would not get the benefit of the doubt from the judge. I have had, and I am sure the Minister did too, many people coming to me saying they did not know where to get the form or to whom to go, that they did not know they had to fill in the form, that they told the Garda and did not hear any more about it, or any one of a hundred good reasons. These genuine cases should be guaranteed equality of access in terms of their liability to lodge a claim and should be fully compensated at the earliest possible date.

Under the previous section if a claim is less than £100, under this legislation the Minister is liable to tell the claimant he is not entitled to claim because the amount is too small. As we will deal with that point on Report Stage, I will not go into it in detail now. I am making the case for writing into this legislation the possibility of extending that time on reasonable grounds and I ask the Minister to consider it sympathetically.

Mr. Doherty

The Deputy referred to the right of the ratepayer to come to court and be heard. I do not think it would be necessary to provide here for the publication of the serving of the notice. The serving of the notice has been changed; it is now served on the member in charge of the Garda station in the locality where the malicious damage was done and on the local authority. The publication of the service of such a notice would not be of interest to a person living outside the locality. If a person has relevant information, he may wish to tell it in court. It is only after investigation that the Garda know all the facts.

A claim for malicious damage cannot be compared with a planning application. A person living some distance from the area in which the application for planning permission is made could be interested but, in the case of malicious damage a person would have to live very close and know a great deal about the occurrence. He would probably be in a position to comment on the background to the situation.

The Deputy mentioned making the community aware of the compensation being paid. This is a very valid point. It is desirable that people should be informed of the money they have to pay for the actions of wrongdoers in their community. The media, both national and provincial, have reported all successful claims.

Mr. Keating

Yes, if the sum is large enough.

Mr. Doherty

Everything big is not beautiful. If one lived in Roscommon one would find——

Mr. Keating

I know the area well.

Mr. Doherty

Claims for damage over £5 have in the past got considerable publicity which I agree, is desirable.

Mr. Keating

What about the unfortunates in the greater Dublin area who do not have the benefit——

Mr. Doherty

I have great confidence in the media.

Mr. Keating

——of a local press? We have only the national media, who nationally do a very good job. In the Minister's case, where there is a small local action——

Mr. Doherty

I said the national and provincial press——

Mr. Keating

I am suggesting that it is reasonable that the community might know more about this subject than they do. The circumstances the Minister outlined in relation to Roscommon and the circumstances in the Dublin city area are obviously different from the point of view of the ability of the media to deal with this revelation.

Mr. Doherty

It is a procedural matter and it is not something which should be prescribed in the Bill. If the Deputy has something valid to offer in relation to the improvement of the circulation of such knowledge I suggest he consult the media about it. It is possible that his suggestions will be taken seriously.

Mr. Keating

Is the Minister suggesting that the newspapers might give me a column about malicious damage in which he and I could write jointly each week?

Mr. Doherty

I do not necessarily have to consider that suggestion.

Question put and agreed to.

Section 9 agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill."

Mr. Keating

Subsection (2) states:

Any ratepayer of a local authority which is a party to the proceedings shall be entitled to appear at the hearing of an application for compensation under this Act and be heard by the court in relation thereto.

It is clear from that that any ratepayer of a local authority which is a party to the proceedings shall be entitled to appear at the hearing of an application for compensation but that is not at one with what the Minister said a short time ago. The Minister expressed the view that somehow such matters concerned only a small number of interested parties. It is a new concept in practice for ratepayers of a local authority area, such as those in Dublin city, to take such a clinical interest in the proceedings that they might take up the opportunity of participating in or being present at such hearings. In principle it is a good thing that they should know about that. I venture to suggest that they do not know of their right in the matter and there is no way they will know unless something positive, such as I suggested, is done about it. The possibility of them attending should be published and any such application should be accompanied by a brief notice outlining details of the hearing and the fact that people are entitled to be present. The mechanism is in existence in relation to the Planning Acts although I am aware that there are some dissimilarities.

There is no point in giving people a right unless they know where, when, how often and in what circumstances they can take it up. We are being a little hypocritical if we tell people they can be present but it is not intended to tell them where or what will happen. It is not good enough to tell them that if they are anxious to know what will happen to ring the law department of the local authority concerned and if they are not too busy and are anxious to give the information sought — there is no guarantee that they will tell the person anything because there are no laws relating to any type of access to information here — they will learn the details of such applications. That is not good enough. It would be a positive advantage for the average ratepayer to be regularly presented in the media with the knowledge that their money is being spent on malicious injury claims by virtue of the relatively low and declining standards in the community. It would be a positive incentive to get people thinking along the lines of improving standards if they knew about such access and that they could participate. There are many voluntary groups, community or residents associations, or individuals, who might engage their attention in such situations to the benefit of the community.

The price of creating such an awareness and bringing about such participation is very small. The right contained in subsection (2) should be communicated to those it is intended to apply to, otherwise it is a right that will not be used. The Minister knows that. It will be a pity if this good provision is not exercised. I cannot see it being exercised unless the Minister adopts my suggestion. Does the Minister agree?

Mr. Doherty

The fact that the right has existed since the Act of 1898 means that it is known to many people. It should be remembered that this provision only affects those who can make a worthwhile contribution to such applications. The people concerned would live near to, or have been near, the place where the malicious occurrence took place. Otherwise they would not have much to offer.

Mr. Keating

A person in attendance at such a case may suddenly find that he or she could benefit by lodging a similar claim to the one at hearing. Such a person may be in a position to offer helpful evidence as to the integrity or otherwise of the applicant. The Minister's reply is in direct conflict with the spirit of the subsection which states that any ratepayer may attend the hearing. The implication of the Minister's reply is that this will only concern the few people directly involved.

Mr. Doherty

No. Any ratepayer in a position to go there could involve himself in the proceedings on the basis of having something to say.

Mr. Keating

Maybe. They may also go because they are interested in seeing how their money is spent.

Mr. Doherty

Courts are public places and it is only in special circumstances that any member of the public is excluded.

Mr. Keating

We are discussing a particular case where public money is being spent.

Mr. Doherty

The subsection has very wide scope. It also provides that any ratepayer in the nation, not only ratepayers in the county or area where the damage occurred, can attend.

Mr. Keating

That is not correct because the subsection states that the ratepayer must be living in the area of the local authority which is the subject of the action. The Minister referred to the nation.

Mr. Doherty

It is not extended to any ratepayer. The subsection confines the attendance to people in the locality who would have an interest.

Mr. Keating

In Dublin city for example that could mean 750,000 people. What does the Minister mean by "ratepayer"? It is important that the ratepayer gives notice prior to the hearing because otherwise it could lead to an injustice. A ratepayer may have evidence to give to the Court but in the short time available it might not be possible to deal with it. In other words, is there a case to be made whereby the ratepayer who is anxious to attend should put his submission on record or give notice of his intention to participate so that his contribution may be validly assessed and the best use made of it? Otherwise we are in a situation where his participation would be pointless and would not be maximised in terms of its benefit. I should like to suggest the inclusion of the following provision: "Provided the ratepayer serves notice on the local authority and the applicant one month prior to the hearing of the application for compensation. The reasons for the appearance and the statement of the evidence to be given by such person and a statement of submissions to be made by such person shall be given within the said time. The applicant for compensation may waive the said time stipulation of one month. If the application appears in the court list for hearing less than one month after the ratepayer could, having regard to the time factors involved, have served such notice herein before referred to, the judge shall, unless the applicant waives the time stipulation, adjourn the case". That is designed to ensure that a person who can honestly make a useful contribution to a hearing will have that contribution considered prior to the hearing so that people on both sides can evaluate it and make the necessary response to it.

Mr. Doherty

A ratepayer is a person who held that status prior to the abolition of rates on private houses and agricultural land by the Government. Even though they do not pay rates they are not deprived of the status they held prior to the abolition of rates. The Deputy felt there was no provision for the ratepayer who felt he could make a contribution to do so. Any ratepayer has a right to attend in court and a right to speak. If he has something to contribute it would be normal to accept that in the first instance he would go to the Garda or the local authority or both and make his contribution. It would be expected of a normal interested ratepayer in the community who had knowledge or a contribution to make in court at some time to communicate first of all with the investigating body, the Garda, or the local authority who at the end of the day might have the responsibility of spending his money in an area of compensation.

Mr. Keating

I will leave that then. Under subsection (2) are there any circumstances whereby a sharp legal brain might adjudicate that this section excludes anybody who is not paying rates? After all, it does say "Any ratepayer of a local authority which is a party to the proceedings" and so on. A ratepayer is someone who pays rates. People who have been de-rated, quite rightly, by this Government are not paying rates. There are circumstances, therefore, under which this section could apply only to the business or commercial sector. If language means anything, a ratepayer is someone paying rates. It is all very fine for us to nudge, nudge, wink, wink, and understand that we really mean people who were paying rates prior to that date that this new arrangement came into being, but I can see a problem here. Somebody might say that a person is not entitled to be here as he is not a ratepayer, by reason of the definition of the word. Should the term be "person resident in a local authority area", "citizen" or something else which would not be as exclusive as "ratepayer"? The average person today is not a ratepayer, whatever else he is. People are taxpayers, unemployed and many other things but they are not ratepayers. There are also ratepayers in our community. Therefore, we have two categories of people, those who pay rates and those who do not. On the face of it, this section applies to those who pay rates, and I see a problem here.

Mr. Doherty

The Deputy is not correct when he suggests that the section applies only to those persons who pay rates.

Mr. Keating

I did not say that. I said that there are sharp legal brains who might imply that it does. I know what the Minister of State means but it is a question of what is down here that we are talking about.

Mr. Doherty

The Local Government (Financial Provisions) Act, 1978 in section 17 provides for the status of ratepayer to continue to be attached to a person who was a ratepayer under that Act but who is now in receipt of full rates relief. That is a legal provision which retains the status of ratepayer.

Mr. Keating

To clarify the situation, it is in relation to people who used to pay rates and now do not.

Mr. Doherty

That is right.

Mr. Keating

What about people who never paid rates and who were tenants in local authority houses?

Mr. Doherty

The section mentioned deals with ratepayers as defined in that Act under that section and that is what we are referring to here in this section.

Mr. Keating

No, we are dealing here with the definition of "ratepayer" and the Minister of State said that under the Local Government Act there is no problem because a ratepayer is defined as somebody who paid rates at that time even though he may no longer be rated. What about somebody who did not pay rates, for example a local authority tenant?

Mr. Doherty

Prior to 1978?

Mr. Keating

Prior to 1978.

Mr. Doherty

That person would not be a ratepayer. We are not dealing with somebody who would not be a ratepayer but with someone who is a ratepayer as defined in the Local Government (Financial Provisions) Act, 1978 and understood to mean the same by virtue of reference to section 17 of that Act in this Bill.

Mr. Keating

They did not pay rates then and they are not paying rates now. Are there any circumstances, therefore, in which those people could be considered ratepayers? If they are not, they are not entitled to benefit under this section?

Mr. Doherty

This section applies only to ratepayers as defined.

Mr. Keating

That is the point. What about the other poor slobs?

Mr. Doherty

We did not get to that point. We are half-way through a few points.

Mr. Keating

The Minister of State is telling me that the people entitled to be party to a proceedings and to appear at the hearing of an application are any people in a local authority area. Is that not the sense of the section?

Mr. Doherty

I have already stated that anybody who would wish to make a contribution in court either for or against in this situation as a ratepayer is defined by other legislation. A person who was not a ratepayer and has something to contribute in court has the right, responsibility and duty to go along to the Garda or the local authority, and either party or both parties will be glad to have whatever information or views that person has to offer or contribute that would be relevant to the proceedings. The person who is not a ratepayer as defined in the 1978 Act is not necessarily precluded because he is not a ratepayer, on the basis that he has the usual opportunities and rights to go along and make his view known to the investigating body or the body who might ultimately be compensating him.

Mr. Keating

We have got very murky now. Anybody has a right to go to the Garda.

Mr. Doherty

Of course.

Mr. Keating

So there is no big deal in that.

Mr. Doherty

The reason the ratepayer is mentioned is that the ratepayer is going to pay the piper and it is only right that that person should have a very special mention. The Deputy by his earlier comments was concerned only about the fact that there was not greater circulation of information to ratepayers.

Mr. Keating

But who is now a ratepayer?

Mr. Doherty

Section 17 of the Local Government (Financial Provisions) Act, 1978 has described who is now a ratepayer even though such a person may be in receipt of full rates relief.

Mr. Keating

There is a problem and I want it cleared up. The Minister of State is saying on the one hand that a ratepayer as traditionally defined has an entitlement to be party to and to be represented at this kind of hearing and that others may go to the Garda and be represented indirectly.

Mr. Doherty

The ratepayer may do so.

Mr. Keating

Right, but in view of the fact, the reality, that nobody except those in the commercial sector are paying rates, such a discrimination is illogical and unreasonable because the rates are now funded from central Government revenue raised on all people. I had hoped that this section did not create two standards and two different categories of people. The Minister of State now confirms that it does and that some people, those classified when rates were payable — a system we have abolished because we considered it unjust — still retain rights which applied to such an unjust status — unjust not because they paid rates but because the whole system of rates was unjust and presumably that is one of the reasons that it was abolished, and there may be other reasons somewhat less worthy. Why are we apparently now re-writing into law two different sets of entitlement to participate in disputes affecting the hearing of malicious damage claims? That is what the Minister has said and if that is the case it is fundamentally wrong. Rates now are raised out of Exchequer funds, right across the board regardless of ownership of homes or otherwise. Therefore, it is quite wrong that somebody who would have been paying rates if rates were continued has the capacity for direct participation which others have not. If the Minister thinks this is the best way to do it, I should like him to have another look at the section between now and Report Stage. Perhaps we are not getting the facts of the case. I should imagine anybody living in a local authority area would be entitled to participate in a hearing. That is not what the Minister said.

Mr. Doherty

I said that.

Mr. Keating

I am not trying to be smart or slick. I raised this point to be helpful. I am very clear on what the Minister said. He said that a person who was defined as a ratepayer under the Act to which he referred was entitled to direct participation and to be present at the hearing. Those not paying rates, for example, local authority tenants, a very substantial number of people, and people in private rented accommodation, and there are 300,000 to 400,000 of them, are not entitled to direct participation but are entitled to go to the Garda and get them to make an impact on the situation.

Bad as that was when rates were being paid, because then there was some degree of rationale in the argument, now that rates have gone it appears the Minister is saying that this distinction, this discrimination, is being perpetuated. If it is, it should not be. It is quite wrong. I wonder is the Minister clear on what he is actually saying to us today. I do not believe that is the spirit or the letter of this Bill. The whole difficulty arises from an anachronistic use of the word “ratepayer” which should not be there. By the time the lawyers are finished with it the word “ratepayer” will mean a person who pays rates. I want the Minister to clear up this matter. Are we saying that only those who are liable to pay rates as of old are now entitled to direct participation in a hearing for malicious damages and that others have a lesser and inferior right? Is that the case?

Mr. Doherty

Ratepayers as described in section 17 of the 1978 Act are people who have not lost status as ratepayers for the purposes of any enactment solely by reason of being made an allowance under this Bill. That is the Local Government Act, 1978. Examples of the enactments in which there are sections which come to mind are sections 76 to 79 of the Local Government Act, 1946, which give ratepayers a say in changing the names of towns, townlands, streets and localities, and section 22(2)(c) of the Local Government (Planning and Development) Act, 1963, which gives certain rights to ratepayers to make objections to draft development plans.

Almost everybody who possessed property paid rates prior to 1977. That situation has changed and the status which people held at the time by reason of the sections I have referred to has not changed from the point of view of this Bill. I said ratepayers were people who got special notice in the area of malicious injuries because they were the people who would have to pay ultimately through the local authorities. The Deputy made the point that the taxpayer is now the person who has to pay — not totally. In so far as recoupment from the central Government is concerned, the taxpayer comes into it over 20p only, and that is a variable figure.

Quite a considerable number of people in various parts of the country are paying rates on land over a certain valuation, or paying rates on business property. I am satisfied that the retention of that status for the person who is not necessarily paying and the person who is paying is proper. I am satisfied that there is no discrimination and that no legal person can have any objection to something already prescribed in law. I cannot anticipate what people will see in any section, but I must make a reasonable attempt to ensure that it is constitutional and valid.

There is no provision in this section which excludes anybody, apart from those described as ratepayers, from making a contribution or communicating information to the two bodies I have referred to and, through them, to the court if there is some relevance, or significance, or usefulness attached to their comments or their information. At present more and more people are anxious to avail of that. Very regularly people come forward to assist the Garda in their inquiries, or to communicate with the local authority in the knowledge that they are engaging in a community spirited act.

Mr. Keating

The Bill is on very thin ice in this area. The Minister has confirmed my worst fear which is that, despite the fact that rates were abolished ostensibly because they were an unjust and inequitable tax which appeared to be imposed regardless of ability to pay, positive discrimination will be caused — or affirmative action is the current expression — based on a system which we agreed to be unjust.

Under this Bill does a person in private rented accommodation, a flat or a bed-sitter, or a person in a local authority house, or a person in a mobile home, have the same right as people who are paying rates on agricultural land, or on commercial buildings, to participate in the same way and at the same level in the hearing referred to in subsection (2)? Is there equality of access and participation in relation to those categories of people? That is my question and the Minister says the answer is no.

Mr. Doherty

They have a different form of access.

Mr. Keating

Then I suggest there is a major affront to equality of treatment under the law in this respect. It is of no advantage or solace to tell people they can go to the Garda if they are in one category and, if they are in another category——

Mr. Doherty

They still go to the Garda.

Mr. Keating

——they may enjoy the benefit which going to the Garda will bring them, plus the right of direct participation in the hearing, which is denied to the first category of people. The first category are now in a minority. Fewer people are not paying rates than the number of people paying rates; whether they be rates on agricultural land or on commerical enterprises, the reality is that the average citizen no longer pays rates. People in local authority dwellings do not pay rates and 300,000 to 400,000 people in private rented accommodation do not pay rates. None of these people in entitled to participation in the hearing in the way in which a casual reading of this Bill would imply. That is wrong. The way to correct that wrong is to get rid of the anomalous word "ratepayer" and change it for some other word which means what we want it to mean, which is that any sensible person with something to offer is entitled to participate in a hearing about the expenditure of public funds. That is what it is about, and not creating and furthering distinctions based on a system which was done away with because it was unjust.

Mr. Doherty

You cannot be sure what people would do in relation to rates it they had the opportunity.

Mr. Keating

I bow to the Minister's more rapid progress in that respect. I will even be charitable and go so far as to say that he did it for the right reason — that it was an unjust system. I am talking now about recreating injustices. Why should a person in a local authority flat or a person from Roscommon who is working in the public service and living in a flat in Dublin and who is concerned about malicious damage not have the same right to go along to the court and make the same sort of contribution at the hearing as anybody else, particularly when that anybody else is no longer paying money into the public purse?

Mr. Doherty

One would be led to believe, listening to the Deputy, that the ratepayer who has direct access, because of the special status provided by section 17 of another Act, could come in to court and avail of that right, as prescribed in this section, to the extent that he could talk as long and as far away from the point as the Deputy has on this particular section.

Mr. Keating

This is Roscommon County Council.

An Leas-Cheann Comhairle

One Deputy at a time.

Mr. Doherty

The court would have a right to ensure that there was relevance attached to that person's use of a right. I am satisfied that, if that person had something to communicate to the court from the point of the view of the local authority interest or the Garda interest, in the main the vast majority of people would go to either of those bodies or any other agencies involved in the investigation. That includes people other than ratepayers. The Deputy is prepared at this point in time to give the knock to the hundreds of people in the country whose property is very often damaged. The malicious act is very often perpetrated against those people. The Deputy is prepared by a change in the existing legal provisions, which are sound and properly established, to throw them out the window and to deny the business people, who have enormous sums invested in property and their contents, the right of access to the courts.

Mr. Keating

That is not true.

Mr. Doherty

That is what the Deputy is suggesting by changing the status. He is now equating the business interests of the country, the people who have property, with people who may not have any property. I do not see how the Deputy can, in fairness, deny people a right, which has been long established, the right of a ratepayer to direct access to the court.

Mr. Keating

I defy the Minister of State to show in any part of the record of the last half hours' debate one iota which will bear out what he says. Far from trying to deny rights to anybody, I have sought to ensure the broadening of rights to people who do not have them under the provision now put forward by the Minister. The combination of balderdash and whitewash which I have just heard, completely evading the central point, is simply not good enough. I do not wish to be misrepresented. It is not in the spirit of this discussion that the Minister should do so. I assume that the Minister of State has made an error and that, when he has a chance of looking at what has been said during the last half hour, he will have the decency, on Report Stage, to correct what he has just said, that I have endeavoured to take rights from people. I have tried to ensure that this hierarchy of rights, one right being superior to another——

Mr. Doherty

Will the Deputy let me explain?

An Leas-Cheann Comhairle

Deputy Keating is in possession. I want to get one thing clear. We will have to deal relevantly with the section before us. Long Second Stage speeches are not in order on the Committee Stage of a Bill.

Mr. Keating

I have endeavoured to show that up to now there has been a distinction, a preference, and a stronger right for people who pay rates than for those who do not. Rates have now been abolished. I contend that this greater right for some groups in our society than for others, for those with property as against others, is no longer solidly based because rates are no longer paid.

Mr. Doherty

The Deputy is saying that rates are abolished altogether but that is not correct.

Mr. Keating

I did not say that.

Mr. Doherty

The Deputy said it a moment ago. He is unable to recall what he has said. The business community are still paying rates. The Deputy wants to deprive them of a status that is prescribed for them in law under the 1978 Local Government (Financial Provisions) Act. The Deputy wants to make them equal to people who do not pay rates or do not even have property rights.

Mr. Keating

Will the Minister answer me this question? What is the justification for people who own their own homes but who do not pay rates now having a superior right to those who live in private rented accommodation or in flats?

Mr. Doherty

In their case they owned their homes prior to the abolition of rates.

Mr. Keating

What about people who bought their homes since then? They have the right.

Mr. Doherty

They are people who have the same status as that prescribed in the 1978 Act for the others.

Mr. Keating

Even if they acquired their homes after that Act was passed?

Mr. Doherty

The basis on which they have the right in the first instance is prescribed in law. The only thing we have done is to ensure that section 17 of that Act, which gave them that status in the first instance, retains it for them for the purpose of this Malicious Injuries Bill and for other Acts, such as the Planning Act.

Mr. Keating

How can the Minister continue a distinction in rights in respect of people who did not have that right when the Act he refers to was introduced in the first instance?

Mr. Doherty

It seems to me that we are talking about a different Bill from the one before the House.

Mr. Keating

I am not. I am very clear about what I am talking about.

An Leas-Cheann Comhairle

The Chair would point out that we are discussing section 10.

Mr. Keating

I am only referring to this point because it came up during the discussion. We are discussing what the word "ratepayer" implies in this Bill. I have argued from the beginning that this word is now anomalous and should be removed unless we want to recreate or continue two distinct categories. If we are to continue with two distinct categories it might be logical if those categories really meant people who are paying rates — that is, commercial interests, farmers and certain other groups — and those who do not.

Mr. Doherty

That is the first time the Deputy has recognised this distinction this evening.

An Leas-Cheann Comhairle

Deputy Keating will make his point and the Minister will be allowed to reply to it.

Mr. Keating

There is another group who are in the grey area. They are the people who used to pay rates but no longer do so. The rationale the Minister has put forward for continuing this hierarchy of rights might apply, in the thinking of the Fianna Fáil Party, to people who continue to pay rates, which is exactly where we started. My fear is that people who pay rates are only those referred to in the section. What about the people who no longer pay rates but who enjoy this right? The Minister of State would say that they owned their homes before the Act came into operation. My reply to that is: What about the people who bought their homes since the Act came into operation?

Mr. Doherty

They have the same status because the basis for giving them that status is something which makes them different from people who do not own homes. That is the difference the Deputy is not prepared to recognise.

Mr. Keating

I will leave it at that and let the record clearly show that we are today overseeing a situation where a basically unjust and inequitable taxation system — that is, rates — abolished by the Fianna Fáil Government, is now being used as a basis not just for perpetuating but for recreating, every time a person buys his or her own home, a difference in relation to entitlement to participation in a hearing affecting the expenditure of public moneys between those people and people who are in private rented accommodation, of whom there are 350,000.

Mr. Doherty

Surely it is understandable that people who own property should have a very special position.

Mr. Keating

What about public property or private property?

Mr. Doherty

Admittedly there is ownership in that regard, too, but people who do not own property have the same access and the same right and the Deputy is not recognising the person who is a ratepayer paying rates.

Mr. Keating

I hope I have clearly shown that we are continuing a wrongful distinction which is anomalous and which should be dealt with by removing the word "ratepayer" and putting in a word which meets the spirit of the Bill.

Mr. Doherty

Does the Deputy abolish the fact that there are owners of businesses and shops?

Mr. Keating

Certainly not.

An Leas-Cheann Comhairle

Will the Deputy please move to report progress?

Mr. Keating

I would give the same rights to others because, after all, it is only a right of hearing.

An Leas-Cheann Comhairle

When the Deputies are done hammering one and other across the floor, will Deputy Keating move to report progress?

Progress reported: Committee to sit again.