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Dáil Éireann debate -
Tuesday, 8 Apr 2003

Vol. 564 No. 5

Licensing of Indoor Events Bill 2001: Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 14:
In page 12, line 17, after "authority", to insert ", through its Chief Fire Officer or Inspection Officer,".
–(Deputy Allen).
Amendment, by leave, withdrawn.

We move on to amendment No. 15. I call on Deputy Gilmore.

I had withdrawn the amendments I had tabled, with the exception of one amendment, consequential on an earlier amendment, which would have the effect of extending to four weeks the period of time within which an appeal could be made to the court.

Amendment No. 15 not moved.

Amendments Nos. 17 to 20 are related to amendment No. 16. Amendments Nos. 16 to 20, inclusive, may be discussed together by agreement.

I move amendement No. 16.

In page 14, line 19, after "both," to insert "fine to be index linked,".

In recent years fines imposed for offences have tended not to stay in line with cost of living increases. These amendments are designed to ensure that the fines have a deterrent effect by keeping them in line with the consumer price index. I ask the Minister to accept these amendments.

I support these amendments. Over the years I have favoured amendments along these lines, both in Government and outside it. My understanding is that the Parliamentary Counsel's office is having some difficulty accepting the notion that a fine should be set in terms of its real value rather than its monetary value. The truth is, however, that measures of real value are produced by the Central Statistics Office in the form of the consumer price index and this is a well established basis upon which one could revise fines annually, without the necessity of new legislation. This is an issue that should be addressed in any revisions of the Interpretation Acts, which concern the interpretation of statutes. Deputy Allen has raised an issue which is important in the context of this legislation but it is also important generally.

It is important to bear in mind the purpose of a fine. The purpose of a fine is to deter a person from future behaviour that is considered to be worthy of sanction by the community. The impact of fines, however, is different on different people. People who are well off can shrug off a fine, while people who are badly off may find a fine impossible to pay and have no option but to submit to incarceration. The impact of fines on individual people is a wider issue, which is not addressed in Deputy Allen's amendment. Should fines be related to the assets or income of a person or the scale of the person's operations? There are some cases in which the fines are so low in practice that the activity, albeit an illegal one, is worth continuing, because the fine is so low compared with the profits that can be made.

Another advantage of Deputy Allen's amendment would be that if the fines are revised upwards in line with the CPI, the current intention of the Oireachtas in setting fines at a particular level, relative to the scale of the activity, would be maintained. The purpose of legislation is to give effect to the intentions of the Oireachtas and if we find that fines are falling badly over time due to inflation, the intention of the Oireachtas is no longer being fulfilled.

It is appropriate that this amendment should be proposed in the current Dáil. At the moment, as the Minister is no doubt aware, the rate of inflation in this country is twice the European level and is increasing. This is a shame. We would not need to consider amendments of this nature in a country with low inflation, but we have disproportionately high inflation relative to other EU countries. This is yet another reason for supporting Deputy Allen's well chosen amendments.

Could the Minister tell us whether there is an ingrained resistance to index-linking fines? Why has it not been included in legislation such as this? Once this Bill is passed, it is to be hoped there will be no necessity for fines in respect of serious breaches of this legislation, so it might be put on a shelf and forgotten about for ten or 15 years, by which time the fines will be entirely out of date and somebody else will be legislating in the Dáil. What is the cause of this resistance in the Department to index-linked fines, particularly when it comes to a Bill such as this, which will not have too much use other than as a deterrent?

I do not underestimate in any way the importance of the amendments being proposed by Deputy Allen. First, however, we must consider the backdrop to all of this. Section 15 sets out the penalties for offences.

On summary conviction we have decided on a fine not exceeding €3,000 or imprisonment not exceeding six months, on conviction and indictment €1.3 million or imprisonment not exceeding two years and on summary conviction a fine not exceeding €500 for each day on which the offences continue or on conviction and indictment €13,000 for each day. While I fully support the principle of indexing the fines, this is the responsibility of the Department of Justice, Equality and Law Reform, which has indicated it is at a very advanced stage of drafting a new fines Bill that addresses the issue of indexation for summary conviction offences.

Will the Minister concede? How long has that legislation been on the stocks? I believe the indexation of fines has been on the stocks for the past ten years.

The Department of Justice, Equality and Law Reform is aiming to publish the Bill by the end of this year and it is essential that happens. It would be pointless to accept the principle of the Opposition amendments here without being serious about this. My officials in the Department of the Environment and Local Government as well as Opposition spokespersons will monitor this, as we are anxious to ensure it will be published by the end of the year and I hope it will be enacted early next year. The Department's advice supported by the Parliamentary Counsel is that we should await the enactment of the proposed fines Bill, which will deal with the issue of indexation across all Acts of the Oireachtas.

Section 25 updates the fines of the Fire Services Act 1981 to bring them in line with current fines. Indexation of these fines in this Bill would not be appropriate having regard to the forthcoming fines Bill. While in principle I have no difficulty with what Deputy Allen proposes, the modus operandi for this will be through the fines Bill which will be published by the end of the year and which should, I hope, be enacted by early next year.

Amendment put and declared lost.
Amendments Nos. 17 to 22, inclusive, not moved.

I move amendment No. 23:

In page 21, line 6, after "by" to insert "a Chief Fire Officer or by".

The purpose of this amendment is to insert an explicit reference to the fire officer.

We debated this amendment at length on Committee Stage, where I made it clear that the authorised person who would be authorised by the fire authority would include the chief fire officer and other fire officers. There are a number of assistant chief fire officers and other senior officers who could be authorised officers. We believe there is no need to single out one particular officer grade. The fire authority will decide the authorised officers and, no doubt, that will include the chief fire officer together with assistant officers and other senior officers. It is unnecessary to amend section 29 as proposed.

Does the authorised officer have the power to close down premises if authority is delegated to him by the chief fire officer?

The authorised officer may be the chief fire officer, the assistant chief fire officer or the senior officer. Once appointed all authorised officers will have the same authority.

Can a person authorise himself?

No, it would be a matter for the fire authority to authorise such a person.

Amendment, by leave, withdrawn.

I move amendment No 24:

In page 21, between lines 12 and 13, to insert the following:

"(d) may include, if the owner or occupier declines to accept recommendations, an improvement notice served on the spot by the Inspecting Fire Officer or authorised Officer.”.

What happens if the owner or occupier declines to accept recommendations?

When this was debated at length on Committee Stage, I indicated that if following consultation I believed this provision would improve the Bill, I would have no difficulty in responding positively. However, it was necessary for me to receive some clarification. I consulted senior fire officers and the advisory staff of the Department, who considered powers to serve an improvement notice proposed in the amendment are unnecessary and undesirable. There are now wide-ranging options and powers available to the authorised person under section 18 of the Fire Services Act 1981, as amended under section 29 of this Bill. My intention in this Bill is not to shift responsibility for safeguarding persons or property against fire away from the premises owner to the fire authority. If I were to accept this amendment the authorised officer would be giving a directive rather than advice. The intention of this Bill is to ensure that responsibility is with the owner of the premises at all times. Anything other than that would contradict the advice we have been given.

Following the enactment of the Bill as drafted, the authorised fire officer will have a wide range of options available to him or her for dealing with fire safety on a premises, depending on the risk which may be identified by them on inspection of the fire safety available. The authorised officer may require the person in control of a premises to carry out a safety assessment of such premises, provide warnings, either orally or in writing, and specify works to be carried out. I consider that this warning in writing will be a more efficient and effective way of dealing with the improvement works issue than using a formal improvement notice procedure as suggested by Deputy Allen's amendment.

The method proposed in the Bill for dealing with the matter does not involve either party in the appeals process to the courts and will not result in consequent delays. Under the writing warning notice proposed in the Bill, if the person in control fails to comply – people usually comply – the fire authority still has the option of appearing at the annual licensing court, where appropriate, and objecting or taking proceedings under section 20 of the Fire Services Act by issuing a formal fire notice or by issuing High Court proceedings under section 23, if the situation so warrants. The Bill also provides for the issuing of a formal closure notice by the authorised person. The person proceeded against would have the right to contest these notices. It is expected that the threat of proceeding to use any of these powers should be sufficient to achieve the objective of public safety.

I take it that the warning notices to which the Minister of State refers would be made before an event takes place and before any improvement works that might be recommended are carried out. That notwithstanding, what options does the authorised officer have at the commencement of an event or during it? Can he or she give any further warning notice, to state that it has been discovered that something has not been carried out, or is the only option at that stage to close down the venue?

I support Deputy McCormack's point. It relates to an issue we discussed when the Bill was last debated which is the power or function of an authorised officer when an event is taking place. As I understand the legislation, the only power the authorised officer has once an event commences is to go in and order that the event ceases. In a previous amendment, I proposed that it would make more sense to allow the authorised officer the power, which officers under health and safety legislation have, to go in and direct that whatever is wrong is corrected, rather than use the nuclear option of ordering that a premises be closed down entirely.

When we last discussed the Bill, I was surprised the Minister of State said that it was not envisaged that an authorised officer would go in when an event was taking place but that all this would take place beforehand. This suggests that while legislation is being introduced and a pretence maintained that indoor events are being licensed and regulated, there is no serious intent on the Government's part to give any meaningful effect to it or have a regime in place whereby inspec tions will be carried out while an event is occurring.

If it is the understanding, it is certainly not the intention of the Department for authorised officers not to go into events. The opposite is the case, otherwise it would undermine the Government's intentions and one of the main recommendations of the Hamilton report. Deputy Gilmore referred to an authorised officer being empowered to direct that something be done. If that were the position, the authorised officer would be accepting responsibility. However, the authorised officer can tell or advise the owner. If there are minor issues which can be resolved on the spot, they will be.

This section proposes to amend section 18 of the Fire Services Act 1981 and ensure it is updated. The authorised officer can advise or tell the owner what to do. If a problem is resolved on the spot, there will be no necessity to close a premises down. However, if the problem is much more serious, it is in the interests of public safety that the authorised officer can issue the necessary closure notice. If a number of people are at an event on a particular premises, it does not follow that the authorised officer cannot issue a notice to close down. However, if the fire officer does not do so, there is not much else he or she can do during the event. That notwithstanding, all promoters will try to ensure that proceedings will not be issued against them at a later stage – it is a decision that individuals will have to take on the spot. If a closure notice is issued, they must take its seriousness into consideration. If he or she is committing an offence it can be dealt with at a later stage. However, if the issue is a minor one of moving chairs or putting in additional chairs, it is not the intention to cause problems for a promoter or the audience who are out to enjoy themselves. The intention of the Bill is to protect those who go out to enjoy themselves.

The difference between directing, telling and advising is that if the authorised officer directs a promoter or owner, he or she is taking responsibility whereas if one tells or advises them, the responsibility remains that of the promoter or owner.

I accept the Minister of State's contention that the intention of the Bill is to protect people going to functions and to ensure everything is safe. However, there is nothing in the Bill to provide for this. He said that the authorised officer would probably use his or her common sense in the case of minor problems. However, authorised officers will go by the legislation, particularly in relation to serious matters, and may say the only option they have under the law is to close down a premises. As has been pointed out earlier, that could lead to far greater problems than those which are perceived, such as there being not enough chairs or a locked door that should and could easily be opened. If 2,000 people were at an event and an authorised officer closed the venue for some seemingly insignificant reason, there could be a riot. That could be potentially more dangerous than allowing common sense to apply. If we pass the Bill as it is worded, the authorised officer does not have any other option than to close the premises. We should correct that by providing for the authorised officer to use his or her discretion in such cases.

Amendment put and declared lost.

I move amendment No. 25:

In page 25, line 5, to delete "3" and substitute "6".

The Minister accepted this amendment when it was discussed with amendment No. 11.

The Bill provided for three weeks and Deputy Gilmore asked that it be increased to six weeks. We compromised on four weeks. This amendment regularises what was decided last week.

Amendment agreed to.
Amendments Nos. 26 and 27 not moved.
Bill, as amended, received for final consideration and passed.
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