Dáil Éireann debate -
Friday, 23 Jun 2000

Vol. 522 No. 1

Firearms (Firearm Certificates for Non-Residents) Bill, 2000: Committee and Remaining Stages.

Section 1 agreed to.

SECTION 2

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I move amendment No. 1:

In page 4, subsection (2)(a)(ii), lines 30 and 31, after “commencement” to insert “or if the Minister has made an order under subsection (3)”.

Section 2(2) provides that applications for firearms certificates for firearms to be used for hunting or sporting purposes or for species whose shooting is not proscribed would be made to the Minister for Justice, Equality and Law Reform for two years following the commencement of this legislation. Thereafter the applications will be made to the appropriate Garda superintendent. Subsection (2) is qualified by subsection (3) under which at any time during the initial two year period the Minister can, by order, relinquish his functions in that respect to the Garda Síochána. A rereading of those provisions would suggest that they could have the opposite effect to that intended and that the appropriate superintendent could not assume responsibility for granting certificates until two years had elapsed despite the power of the Minister to reduce the two years referred to in subsection (2)(f2>a)(i). The proposed amendment removes any ambiguity about my intentions, that is, to make clear that should the Minister relinquish the power to grant firearms certificates to non-residents for hunting or sporting purposes within two years, the appropriate Garda superintendent would immediately assume responsibility for granting firearms certificates to non-residents for firearms to be used for hunting or sporting purposes or for shooting unprotected species such as vermin.

Amendment agreed to.

Mr. O'Donoghue

I move amendment No. 2:

In page 5, subsection (6), line 5, after "thereof" to insert ", but a firearm certificate granted before the 31st day of July in any year may be expressed to commence on the next following 1st day of August and shall in that case be in force on and from such 1st day of August until the next following 31st day of July".

Subsection (6) provides that a firearms certificate granted under this section shall remain in force until 31 July next following the grant thereof or for such shorter period as may be specified in the certificate. A difficulty could arise in the case of a non-resident who applies in, for example, July which is the end of one licence period, for a firearms certificate effective from, say, 1 August which is the beginning of the next licence period. The present wording of this subsection would preclude the issue of a firearms certificate with an expiry date later than 31 July of the year of application, thus making advance applications impossible where the certificate was needed for shortly after 1 August. The proposed amendment would enable the issuing person, the Minister or Garda authorities as the case may be, to issue a firearms certificate in July which is effective from the following August. This will ensure that the position of residents under section 3(3) of the Firearms Act, 1925, will be the same in that respect for non-residents under this Act.

Mr. Stagg

It is the intention obviously that the generality of licences issuing to tourists would be for a year's duration. I understand from the Bill they can be for a shorter period or the superintendent can specify a shorter period. My amendment suggests that they should always be for a lesser or specified amount and only for a year if somebody intends to shoot for a year and has indicated that. I cannot understand why a visitor who will be in this country for a month should be given a licence for a year.

Mr. O'Donoghue

With regard to the shorter period, the intent is to cater for visiting dignitaries. Applications intermittently arrive in the Department in relation to visiting dignitaries and the possibility of bodyguards carrying firearms. These are not always granted. We have stringent and strict controls regarding the carrying of firearms in this country. They are probably the most stringent in Europe, certainly in EU member states. Careful consideration is given by officials in the Department to decisions about whether, for example, a visiting dignitary's bodyguards can carry firearms and the application is sent to the Minister for decision.

It is not intended, therefore, for visiting shooters. The difficulty with having a shorter period is that there cannot be discrimination against people who are coming to the State, as I explained on Second Stage. I understand the Deputy's concerns and I hope I have explained the situation.

Mr. Stagg

Why would somebody who is visiting Ireland for up to two months, who wants to shoot during that period of time and wants to have their gun with them in Ireland for that length of time, be given a licence for a longer period? There would be no discrimination against them if they want to shoot for two months, to have their gun in Ireland for two months and have specified the lands they want to shoot on. This will have been notified to and dealt with by the Department of Arts, Heritage, Gaeltacht and the Islands. That Department will have all relevant information on when the tourist is arriving, what type of gun will be brought into the country, on what lands they will shoot and whether there is permission to shoot on those lands. There would be no discrimination against them because they would be given what they want or need.

The danger in having a 12 month licence is that after the regulated period of shooting, the basis on which they were granted the hunting and firearms licence, they can then go where they wish. If the person applied in the first instance for an unrestricted licence to shoot where they wished, they would be refused and correctly so. The Department of Arts, Heritage, Gaeltacht and the Islands would also refuse and the visitor would not get the hunting licence and, consequently, would not be given the gun licence.

However, in this Bill the Minister is giving the visitor an unrestricted licence for the ten months outside the two month shooting holiday. I do not think they want that. The organised shoot operators, who are the majority interest in this sector, do not want it either. This will give tourists an opportunity to come to a regulated shoot operator and then leave after a week to go to a 3,000 acre bog in Mayo or to the Shannon where they can do as they wish for another three weeks. The Minister will have no control over that. That is the difficulty and I believe a specified period of time for the licence would have addressed it.

Mr. O'Donoghue

The difficulty relates to European anti-discrimination law. If, for example, a resident will be granted the relevant certificate for a year, anti-discrimination law dictates that the non-resident who comes from a member state of the EU must also get a certificate for a year. In other words, all EU non-residents must be treated the same.

In the case of Northern Ireland, Members will understand that an individual from the North who is interested in the sport would require the licence for a year. The advice from the Attorney General is that the Minister is not entitled to say that a person from Northern Ireland can have a licence for a year but a person from Italy can only have it for two months. The difficulty is the law of the land in so far as it is dictated by European law. The Attorney General advised that it would not be possible to delimit the time in the manner advocated by Deputy Stagg. There is a prohibition on discrimination. In short, if the certificate is to be granted to a resident of the State for one year, it must be granted to a non-resident for one year as well. There is no way around it.

Mr. Stagg

They are required to comply with certain criteria to get a licence which gives them a right to shoot over lands. If the right to shoot over lands is limited in time by the operator or owner of the lands, surely the right to have a licence would coincide with the limitation the landowner is putting on them to shoot over the lands? I am not sure if I am getting my point across.

Mr. O'Donoghue

The Deputy is getting his point across. If the person concerned wishes to go home after a month or two, he can do that. If he returns here, however, after another three or four months, one could argue that it makes sense not to have to go through the administrative arrangements for issuing the licence again.

The point is, essentially, that what is sauce for the goose is sauce for the gander, if the Deputy will excuse me using that terminology in this context.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 3 is in the name of the Minister. Amendment No. 4 is cognate and they may be discussed together. Is that agreed? Agreed.

Mr. O'Donoghue

I move amendment No. 3:

In page 5, subsection (11), line 31, to delete "only".

The purpose of subsections (11) and (12) is to ensure that where application is made for a firearm certificate with a view the hunting, the firearm certificate should not be issued unless the applicant has obtained any necessary hunting licence. That is clearly a sensible and prudent provision.

The technical amendments I am proposing in relation to these subsections, which involve deleting the word "only" in each subsection, are to remove a possible ambiguity which might otherwise exist. Each subsection refers to the issuing of firearm certificates to a person in respect of a firearm which is intended to be used only for the purpose of hunting. There is a possibility that the provisions might, therefore, be taken not to apply to a person who intended to use his or her firearm not only for hunting but for hunting and target shooting. Clearly, this would not be intended.

The deletion of the word "only" in each subsection will make clear that any person who applies for a firearm certificate for the purpose of hunting must first obtain any necessary hunting licence irrespective of whether he or she intends to use the firearm for other purposes also.

Amendment agreed to.

Mr. O'Donoghue

I move amendment No. 4:

In page 5, subsection (12), line 37, to delete "only".

Amendment agreed to.

Section 2, as amended, agreed to.

Section 3 agreed to.

SECTION 4.

An Ceann Comhairle

Amendment No. 6 is related to amendment No. 5 and they may be discussed together. Is that agreed? Agreed.

Mr. Stagg

I move amendment No. 5:

In page 8, between lines 4 and 5, to insert the following subsection:

"(5) A licence granted or renewed by the Minister under this section shall only be applicable to lands named by the applicant in the declaration referred to in subsection (1) and shall be limited to such periods that the applicant is contracted or has permission to shoot over the said lands and in any case will not be valid for more than one year and will then be applicable only to lands named by the applicant.".

I have discussed the amendment already and the Minister explained the difficulty in accepting it. When I apply for my gun licence, I must specify what lands I will shoot over. The section of the original Act requires me to make that declaration. It will also be required of the tourist shooter. I am not sure if it is possible to stop the type of activity to which Deputy Ulick Burke and I referred on the last occasion we discussed this given what the Minister said about the time limitation, but we could have land specific, if not time specific, licences for tourists. I am not sure if this is possible given what the Minister said earlier about discrimination and a different regime for visiting shooters. The Minister should take this on board and let someone else challenge it because this would prevent the type of activity described by Deputy Burke. This is giving a bad name to shooting tourists in general.

Mr. Higgins

(Mayo): I ask the Minister to give serious consideration to either Deputy Stagg's amendment or to my amendment. Deputy Stagg's amendment goes further than mine in that it proposes a time limit. It seeks to delimit the activities of the person, both in terms of time and area. My amendment reads, “The licence granted to a non-resident shall have endorsed on it the lands over which the non-resident is entitled to shoot as submitted by the applicant or non-resident when he or she applied for the licence.” There is general acknowledgment that the Minister has taken on board most of the recommendations of the review group which was a composite group made up of different representative bodies. Deputy Stagg has rightly paid tribute to the National Association of Regional Game Councils who, having taken action on the applicability of the 1925 Act, inputted very constructively to the review group. This is a responsible body of 22,000 members who regulate satisfactorily their owns affairs.

All the recommendations of the review group have been incorporated in this legislation. However, for some reason, recommendation 4 of the review group's report is the only omission. My amendment seeks to put some kind of limitation on lands. In other words, a licence should specify the areas of ground over which the applicant is permitted to shoot. Will the Minister take this matter seriously and try to curtail the mass destruction and ruthless carnage which is taking place. I witness this taking place in my county where photographs have been taken of bags of songbirds, sparrows, thrushes, linnets, blackbirds and so on. These are seen as justifiable prey in the eyes of shooters from abroad, particularly the French, carrying out their shooting activities.

The problem does not relate as much to permission as to commonage. There are huge tracts of open commonage in the west of Ireland in particular. There is also a huge amount of fallow ground and long railway embankments. These people see it as their entitlement to go on to railway embankments and other tracts of open land, which is not under anyone's control, and shoot indiscriminately. I ask the Minister to give serious consideration to this issue because it seems to be the only omission in terms of taking on board the recommendations of the review body.

Mr. O'Donoghue

To deal with the last point first, there is some evidence of indiscriminate shooting but this is on a very small scale at present. Matters have improved greatly recently. Approximately nine months ago the Minister for Arts, Heritage, Gaeltacht and the Islands, Deputy de Valera, appointed 30 new rangers who are acting on the ground at present and are very successful in policing activities. I also understand that shoot operators have introduced a set of guidelines which are being adhered to and that the situation has improved greatly. There will always by those who will disobey rules and guidelines and seek to become involved in indiscriminate shooting, which is absolutely disgraceful, but any such persons will be severely dealt with under the law if apprehended. That is the message Deputies will want to go out from this House. A sufficient number of rangers are now in place to police this activity.

I propose to take the Deputies' amendments Nos. 5 and 6 together, as they are concerned with the same issues, but I cannot accept them for the following reasons. First, if the proposed measure was introduced it would create a situation whereby we would introduce an uneven playing field where non-residents would be subject to greater restrictions than resident hunters. This would be contrary to the High Court judgment and to EU anti-discrimination laws. These laws, inter alia, preclude discrimination against tourists exercising their rights to travel and to avail of services unless any difference of treatment was capable of objective justification. My legal advice is that the different requirements for resident and non-resident applicants, as proposed in the amendments, are not capable of objective justification.

Second, section 28 of the Wildlife Act, 1976, states that a person, whether resident or non-resident, cannot lawfully hunt with firearms unless such a person is a qualified person within the provisions of that section. To be such a qualified person, a person must, inter alia, be entitled to sporting rights over land or have the permission of the person who is entitled to such sporting rights. Any application for a hunting licence under section 29 of the Wildlife Act, 1976, must be accompanied by a list of the lands over which the applicant has permission to hunt. In addition, any application to the Garda Síochána for a firearm certificate which will be used and endorsed for hunting must be accompanied by a declaration which includes details of the lands to be hunted over.

Third, it would not be possible to restrict a non-resident to certain specific lands as, after the firearm certificate has been issued, the licence holder may receive permission to hunt over new lands. Accordingly, it would not be proper to restrict his or her hunting to certain lands that may have been originally listed on the licence. Fourth, section 44 of the Wildlife Act, 1976, already provides that it will be an offence to hunt over lands with a firearm without the permission of the landowner.

Specifically in relation to Deputy Stagg's amendment, as the Bill is drafted, the maximum licence period in the case of both a firearm certificate and a hunting licence is one year. Accordingly, there are already various strong provisions in relation to the lands over which people may hunt which apply to both residents and non-residents. The amendments, therefore, are unnecessary and would be contrary to the legal and European requirements which had to be taken into account in the preparation of the Bill. This was confirmed by the advice of the Attorney General.

Mr. Stagg

Perhaps the Minister will clarify what "permission from a landowner" entails. Does it entail going to his house and asking, "Can I shoot over your lands?" and, if he says "yes", "How long does that ‘yes' last?" Does one have to get it in writing? Does a person have to tell the Garda he has it or get a letter from the landowner? What does permission entail? I know what permission entails for me. When I go shooting, I ask the farmer can I shoot on his lands and, if he says I can, I take it that "yes" is good for a year. What happens if there is no one to ask? In relation to Bloomfield Bog, for example, where there are 3,000 acres of high heather, high bog, good snipe country, woodcock, the occasional pheasant, duck on ponds and lakes, who does one ask for permission or can anyone shoot there, including tourists? Can unscrupulous shooters who are not regulated bring large numbers of shooters to these commonages and wipe out the game and other wildlife in the area? This is what we are seeking to address. The legislation as framed is flawed in that it does not restrict cowboy operators severely enough to eliminate them or make them toe the line.

Mr. O'Donoghue

A declaration must be made which sets out the county townland, the approximate area in acres and the name, address and telephone number of the owner or occupier of the land and the person entitled to the sporting rights.

Mr. Stagg

What about subsequent to that?

Mr. O'Donoghue

This must happen even if the lands which are to be used are the same as in the previous application. That declaration must be entered into – there is no alternative.

Mr. Stagg

If I am to get subsequent additional permission to shoot over lands, whether I am a tourist or resident, that type of requirement is not involved. I simply ask the farmer if I can shoot. If he says "yes" I have permission and I do not have to tell the Garda or anyone else. What is the position when there is no one to ask?

Mr. O'Donoghue

The person must have permission if he moves from one set of lands for which he has made a declaration to another set of lands. That person must have permission for the land on to which he is moving. For the purposes of the original application he must set out the lands concerned but he still has to have permission when he moves on. I accept it may appear strange.

Mr. Stagg

What about commonage?

Mr. O'Donoghue

A commonage would entail the permission of a number of owners. With a commonage, a person is deemed to be the owner of part and all. If a person had an interest in a commonage, he or she has a right to graze his or her cattle on any part of that commonage for the simple reason that there is no defined area of ownership for the individual concerned. That raises the question of whether a person who owns commonage can unilaterally give the consent which Deputy Stagg mentioned. We could try the Supreme Court but I would guess that he could give consent on the basis that he can exercise ownership rights over all of the land.

Mr. Stagg

On the basis of what the Minister says, to have a right to shoot over Bloomfield Bog in County Mayo, a person would need to get permission from around 500 plot owners. Otherwise he will be acting illegally under this and previous Acts. If that is the case, he can be arrested and punished in whatever way the law determines for shooting. That person will not have permission from 500 people. He certainly will not get permission from my family. We can block anyone from shooting there because we own half an acre of bog there.

Mr. O'Donoghue

It is a nice legal point. If an individual has an interest in a commonage, he or she has the right to graze on any part of that commonage, even though in theory he or she owns one undivided part of that commonage which is undefined in the title. If the sporting rights are reserved to the owners of the commonage, since each owner of the commonage is an owner of an undivided part of it, and has the right to exercise ownership rights as far as grazing is concerned over all of the commonage, it follows that he or she would also be entitled to grant permission for the sporting rights over the undivided section, which is not specified, because he or she has an undivided right. My view is that such a person would be in a position to give permission to an individual.

Mr. Stagg

Or take it from them.

Mr. O'Donoghue

It is a legal nicety. Deputy Stagg is now raising the point that another owner of the commonage might withdraw that permission. The person who grants the permission would have to withdraw it but, again, the Deputy could go to the Supreme Court for a decision.

Mr. Higgins

(Mayo): It is extraordinary that the review group, comprising representatives of the relevant Departments and the Garda Síochána, did its work and one of the recommendations made was that there should be some definition in relation to the land. The report states that it should be granted to a non-resident, he should have endorsed on the licence the land over which the non-resident is entitled to shoot, as submitted by the applicant or non-resident when he or she applied for the licence. Something deemed appropriate by those on the review group is now unsuitable and could create legal problems. I do not understand how, having sat down together, the group changed its opinion. Why is it not possible to marry the provisions of the wildlife legislation and this Bill?

I cannot see why commonage cannot be specified on the licence. One of the benefits of designating the lands on the licence is that the 30 additional wildlife rangers would be able to patrol these areas knowing that certain people are operating under licence for a certain period within specified areas.

This would provide safeguards which would end the ruthless, indiscriminate carnage which is taking place.

Mr. O'Donoghue

I have explained the position on non-residents. They cannot be treated differently from residents if they are EU citizens because there are anti-discrimination laws which must be observed. If, for example, we grant licences to non-residents for two months, we must do the same for residents and that would be an administrative nightmare. The checks and balances in the legislation will ensure that those who are granted non-resident certificates are fit to hold such certificates.

We have had a worthwhile discussion on land ownership. It is not possible, however, to prevent a person who has or is seeking a certificate from asking for permission to shoot from someone who owns land, even if it is a commonage. There are a number of points of legal nicety but we cannot stop people seeking permission to go shooting on another person's land, whether it is commonage or not.

Amendment, by leave, withdrawn.

Question proposed: "That section 4 stand part of the Bill."

Mr. Higgins

(Mayo): On the steel safe which is now required for all residents, the Minister said he is looking at the possibility of making this applicable to non-residents. As matters stand there would seem be a problem with the directive. Does the householder, hotel owner or person providing accommodation have to ensure that the guns of the non-resident shooters will be kept in the same fashion as those of residents with firearm certificates?

Mr. Stagg

I agree that there is a need for people to ensure that their guns are stored safely. I am concerned about the fact that members of the Garda Síochána will have the right to enter people's houses in order to inspect their guns and ensure that they have complied with the provisions in the Bill. I do not believe that gardaí should be allowed to enter one's house unless one breaks the law.

I accept that it is wise to ensure that guns are stored safely. In that context, cars are surely the most unsafe places to store guns. People who go for a drink or a meal after a day's shooting cannot bring their guns with them into a pub or a restaurant and, as a result, they leave them in their cars. I have often seen people leave their guns unattended in the interior of their cars rather than locking them in the boot. Guns left in this way are liable to be stolen. Will the Minister indicate whether guns are usually stolen from cars or from houses?

Mr. Higgins

(Mayo): The Minister indicated that 153 guns were stolen in 1999. Will he indicate the number stolen from cars? I fully agree with the point made by Deputy Stagg about the theft of guns from cars and other vehicles.

I accept that the directive is well intentioned but I believe it will cause considerable difficulties for elderly people living in isolated areas whose guns are often their only form of security. Under the Bill, these people will be obliged to put safes in place in their homes. On "Crimeline" recently, Chief Superintendent John Farrelly displayed the type of safe people are expected to put in place. As stated earlier, these safes will be made of sheet steel 2 mm thick, they will have double locks and they must be anchored firmly to floors, walls, etc. This stipulation will create problems and the Minister could find himself involved in a dispute similar to that which occurred in respect of rod licences.

To a person living in an isolated rural area, particularly someone in receipt of a non-contributory old age pension who is obliged to live on £80 per week, a gun is a valuable form of protection. If that person's house is broken into, by the time he extracted the gun from the safe it would be too late. Elderly people are not reckless or careless with their guns and we should reconsider the directive, which is well intentioned, in terms of the effect it will have on them.

The Minister stated that 153 guns were stolen last year. The National Association of Regional Game Councils has 22,000 members, many of whom own two or three guns which means that there are approximately 120,000 or 130,000 guns in the country. When one considers the position in those terms, 153 is a relatively small number. We must ensure, however, as Deputy Stagg stated, that people secure their guns properly when transporting them in vehicles.

Mr. O'Donoghue

Under this section, firearms certificates are granted with conditions attached and the objective is to ensure that people comply with those conditions. If a person fails to comply, he will be in breach of the terms under which the certificate was granted in the first instance.

There have been disturbing reports about the number of firearms which have been stolen and we are aware that some of these have been used in serious crimes. In addition, it is unfortunate that guns are also used in suicides. Given these two facts, the Garda Síochána felt that certain controls had to be introduced. We are not asking people to place their guns or firearms in remote places where they will not have access to them. Therefore, in the situation envisaged by Deputy Higgins, an individual will be obliged to store his gun in a safe cabinet in his house. I do not believe that is asking too much.

With regard to the situation to which Deputy Stagg referred, under the condition with which the Garda Commissioner is asking people to comply, shooters will not be allowed to leave their guns unattended while they enter a pub or restaurant or go about some other activity. These people will not be entitled to leave their guns in their cars and they will be obliged to comply with the conditions which apply to the certificate.

Mr. Stagg

That is good.

Mr. O'Donoghue

While this provision may appear strict, I believe Members will agree that it is necessary. All too often guns have been used maliciously, not only in this country but also in other jurisdictions. We must minimise the chances that a seriously horrific incident might occur and, as already stated, there have been disturbing reports about stolen guns being used for criminal and other purposes.

Mr. Higgins

(Mayo): I urge the Minister to reconsider the position vis-à-vis this provision. I accept that it has been recommended by the Garda authorities who are supposed to have expertise in these matters but I believe that in certain instances a more modest provision should apply. I do not believe there is any need for people to be obliged to put in place a metal safe of the kind to which I referred earlier. The Mini ster should reconsider this matter from the point of view of the practicalities involved.

The Minister's argument about the use of guns in suicides is somewhat out of place. Suicide is a premeditated act and people who want to kill themselves usually find ways of doing so. Does the Minister intend to reduce people's access to paracetamol, bridges, cliffs or ropes in order to prevent them committing suicide? I accept what he is saying about public security and safety but I do not believe this issue should be put up in lights.

For the benefit of old age pensioners who take great care of their guns and to whom guns are valuable allies, a less costly and stringent provision should be put in place. Local gardaí should be given discretion in this area; they should be allowed to decide if the security arrangements a person employs are sensible and adequate.

Mr. O'Donoghue

Deputy Higgins will recognise that it is not my function to impose the condition and that the Garda Commissioner retains responsibility in that regard.

Mr. Higgins

(Mayo): The Minister is the boss.

Mr. O'Donoghue

I am sure the Garda Commissioner will be sensitive to the points raised by the Deputy when considering this matter. It is not correct to state that I am the boss in respect of this matter because, under the legislation, I am not permitted to direct the commissioner to take particular actions. However, I will bring to his attention the points raised by Deputy Higgins in order that he might take them into account when considering this matter.

Question put and agreed to.

Amendment No. 6 not moved.

Sections 5 to 7, inclusive, agreed to.

SECTION 8.

Mr. O'Donoghue

I move amendment No. 7:

In page 11, subsection (2), line 13, after "cited" to insert "together".

It is usual practice to provide that Acts may be "cited together as", rather than "cited as". The proposed amendment will correct a drafting error by bringing the wording of the collective citation into line with the wording used in other Acts.

Amendment agreed to.

Section 8, as amended, agreed to.

Title agreed to.

Bill reported with amendments, received for final consideration and passed.

The Dáil adjourned at 3.21 p.m. until 2.30 p.m. on Tuesday, 27 June 2000.