Dáil Éireann debate -
Tuesday, 28 Nov 2006

Vol. 628 No. 3

Adjournment Debate.

Sentencing Policy.

Mr. Kelleher

I welcome the opportunity to speak on this issue because I feel a strong case is to be made on amending the legislation to bring forward stronger guidelines. The Criminal Justice Act 1999 contained a provision made by the Oireachtas on the imposition of mandatory minimum sentences on people convicted of offences involving drugs with a value of €13,000 or more. There is an urgent need to address this problem and surveys throughout Europe support this.

There is a growing crisis involving young people availing freely of drugs, particularly crack cocaine, cocaine and heroin. It is time we acknowledge that the Judiciary has not adopted the spirit of the legislation passed with the support of all sides of the House in 1999. Some of the sentences handed down in recent years for the importation, distribution and sale of drugs indicate that a lenient position has been taken by the Judiciary in many cases on the imposition of the mandatory minimum sentence.

A quick perusal of relevant sentences suggests that approximately 80% fall into the category of exceptional circumstances and I find this hard to accept. The Judiciary is accustomed to seeing drugs as an element of modern society and not a devious thing in which to be involved when it is a major problem in Irish life. The evidence in surveys demands that this issue be addressed in a serious manner.

It is time to address a small section of the Criminal Justice Act 1999 and tighten the definition of an exceptional circumstance. The provision in the Bill will allow a member of the Judiciary, when handing down sentence, to take into account the perpetrator's co-operation with the authorities. This might include an early plea of guilty or help with subsequent prosecutions and I accept that people in such circumstances should receive a more lenient sentence. This is a positive thing that will encourage perpetrators to plead guilty and co-operate with the authorities in assisting in the prosecution of those higher on the drug distribution food chain. However, I do not believe the Judiciary is acting in the spirit of the legislation.

I have been criticised for speaking out on this issue but I cannot be silenced when people caught with between €80,000 and €90,000 worth of cocaine receive a sentence of seven years imprisonment with two years suspended for mitigating circumstances. This is completely against the spirit of the legislation of 1999. As a society, a community, parents and public representatives, we must accept that the Act passed by this House is not having the desired effect on sentencing.

When one considers the affluence of Irish society and the price of drugs on the street it is obvious that people are willing to take the risk of importing, distributing and selling drugs because there are huge financial gains to be made. If one is prosecuted, pleads guilty of engaging in such activities and assists the authorities, one receives a more lenient sentence. This sends out a weak signal to those on the fringes, gauging the mood of the Judiciary and watching the deterrents that are in place. It fundamentally fails our young people.

I believe that the majority of people support my view and I call on the Tánaiste and Minister for Justice, Equality and Law Reform and the Judiciary to interpret the spirit of the 1999 legislation and impose the mandatory minimum sentence on those involved in these activities.

Minister of State at the Department of Foreign Affairs (Mr. C. Lenihan)

I thank Deputy Kelleher for raising this important topic. It is not the first time he has done so in this House. He has been steadfast and committed on this matter on behalf of his constituents and out of a strong personal interest on a moral and political level.

Mandatory sentences for drug trafficking offences were first introduced by then Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, in the Criminal Justice Act 1999. A new offence of possession of drugs with a value of, at that time, £10,000, for sale or supply was created. The offence was inserted into the Misuse of Drugs Act 1977 by a new section 15A. The offence under section 15A carries a maximum penalty of life imprisonment with a mandatory minimum sentence of ten years. The section provided that a court could depart from the mandatory minimum but only where there were "exceptional and specific" circumstances that would make a sentence of ten years unjust. This is a matter that concerns Deputy Kelleher. The new section went on to list certain factors that could be taken into account in this regard, such as a guilty plea, the stage at which a guilty plea was entered and whether the person materially co-operated with the Garda investigation.

Unfortunately, the new provisions seem to have been applied sparingly, as Deputy Kelleher implies. Figures available to the Department suggest application of the mandatory sentence reached a peak of about 20% in 2004. The Tánaiste and Minister for Justice, Equality and Law Reform is, of course, mindful of the need to respect the independence of the Judiciary and I am also conscious of this, but I am also conscious of Deputy Kelleher's comments which represent the feelings of his constituents in Cork. The Tánaiste took the view that the intention of the Oireachtas, as set out in the 1999 amendments, was very clear and he therefore decided, in the context of the recently enacted Criminal Justice Act 2006, to strengthen the provisions to underline the intentions of the Oireachtas on the issue.

The recent amendments differentiate between first and subsequent drug trafficking offences, an important point Deputy Kelleher has mentioned to me on many occasions. In the case of first offences, the 1999 provisions continue to apply but additional factors are added which the court must take into account when deciding that the mandatory minimum sentence should not be imposed. These factors include consideration of whether the public interest in preventing drug trafficking is served by a lesser sentence and I would suggest that in most cases the protection of the public interest would demand, as a minimum, the imposition of the mandatory minimum sentence. Where the person has a previous conviction or convictions for drug trafficking offences, it is now provided by section 84 of the 2006 Act that a sentence which is not less than the mandatory minimum sentence must be imposed.

The 2006 Act created a further drug trafficking offence to which the mandatory minimum of ten years is to apply, specifically, the offence of importing drugs having a value in excess of €13,000. This is inserted as section 15B into the 1977 Act and, for sentencing purposes, is treated in the same way as the section 15A offence.

The Tánaiste's intention in the recent amendments is clear — he wishes to underline that the circumstances in which the mandatory minimum sentence may not be imposed are truly "exceptional and specific". This is the clear intention of the Tánaiste and Minister for Justice, Equality and Law Reform and, I think, Deputy Kelleher and the Oireachtas. The Tánaiste's proposals attracted broad support in this House when the Criminal Justice Bill, as it was then, was being debated. The Tánaiste is confident that the new provisions send a strong message and that they will be a strong deterrent for anyone planning to involve themselves in the drug trade.

I thank the Deputy again for the opportunity to put this information on the record of the House.

Tax Code.

Mr. Walsh

I thank the Minister of State at the Department of Foreign Affairs, Deputy Conor Lenihan, for attending to respond to this matter. We all know of the great work done by charities, specifically Irish charities whose work is recognised internationally. They must be supported and encouraged in their endeavours. One way the Government can do this is to support the call by the Irish charities tax reform group to remove the VAT burden on charities through the introduction of a VAT compensation scheme.

Charities are seeking compensation for the unreclaimable VAT they pay on expenditure. I do not buy the argument made by the Department of Finance that charities do not pay VAT on their services because while that is the case, they pay VAT on a range of other expenses to which I will refer later.

VAT compensation is a priority for several reasons, including the fact that it has been identified by charities as having a significant impact on their ability to undertake their work. The Department or Minister must not hide behind EU directives or regulations. The relevant EU Commissioner has stated that there is no impediment at EU level to such compensation being paid by EU member states.

The Danish Government has recently acknowledged that charities have a right to such compensation and is engaged with charities in finalising the practicalities of a compensation scheme. I ask the Department to adopt a similar approach and engage with charities here to identify ways in which it can be of assistance. I doubt much of the money which flows back into the Exchequer every time we give a few euro to charity is allocated to priority areas such as those in which charities are involved.

Charities pay VAT on fundraising efforts, promotion, essential equipment, professional fees, capital expenditure and necessary overheads in buildings and facilities. Unlike the business sector, charities cannot reclaim VAT they pay on this expenditure. The Minister for Finance has the power to relieve this VAT burden by compensating charities without contravening EU regulations, as was confirmed by Mr. László Kovács, the Commissioner for Taxation and Customs Union, when he stated:

The Commission has always considered that any scheme designed to relieve the VAT burden for charitable activities can be regarded as compatible with EU legislation if it is clearly separated from the VAT system... I have to underline that the decision to set up such a refund mechanism is strictly a national budgetary issue over which the Commission has no say or influence.

I ask the Minister for Finance to meet representatives of charities to devise a scheme to compensate for the VAT paid by charities. The requirement on charities to pay VAT has a human cost. For example, the €300,000 VAT bill paid annually by the Irish Cancer Society would run its entire cancer information service for a year, while the VAT bill paid by Concern last year was almost as high as its entire budget for Rwanda. Last year, the Missionaries of the Sacred Heart paid €55,000 in VAT, a sum that would feed, clothe and educate 153 AIDS orphans for a year and achieve a tremendous amount for impoverished people in underdeveloped and developing countries.

The current VAT regime as it affects charities is no more than a tax on initiative which has a major negative impact on the work of charities and the people they seek to help every day, while forming a minuscule portion of tax revenue for Government. In bringing this matter to the Minister for Finance in the strongest possible terms I urge him to initiate discussions with the charities to provide a VAT compensation in the next Finance Bill.

Mr. C. Lenihan

As the Minister of State with responsibility for Irish aid and human rights, I am impressed by the arguments the former Minister, Deputy Walsh, has marshalled on this topic. The Minister for Finance is sympathetic to his point of view and I urge the Deputy to discuss these matters with him at the earliest possible date because he will find the Minister to be receptive.

I am pleased to take this opportunity to clarify matters relating to the VAT treatment of charities. The VAT regime and rating of goods and services is subject to the requirements of EU VAT law with which Irish VAT law must comply. Under the sixth VAT directive charities and non-profit groups engaged in non-commercial activity are exempt. This means they do not charge VAT on the services they provide and cannot recover VAT incurred on goods and services they purchase. Essentially, only VAT registered businesses which charge VAT are able to recover VAT.

Ministerial orders have been used in the past in a limited way to provide refunds of VAT on certain aids and appliances for the disabled, medical equipment donated voluntarily to hospitals, equipment and buildings used by water rescue organisations and humanitarian goods for export. These orders are focused and designed to target specific circumstances. However, under EU law, it is no longer possible to introduce new schemes within the Value-Added Tax Act 1972 to relieve charities from the obligation to pay VAT on goods and services they purchase. Further, under EU law it is not possible to remove or reduce the VAT rate for a particular customer, in this case charities, as the rate of VAT that applies to a particular good or service is determined by the nature of the good or service rather than the category of customer. It would not be possible, therefore, to remove or reduce the VAT paid by charities.

In summary, EU law precludes removing or refunding the VAT which charities are required to pay under the taxation system. This view is also held by the European Commission, which has stated that while charities cannot be refunded through the VAT system, there is nothing to prevent national governments paying charities a subsidy to compensate them for the irrecoverable VAT they have incurred, provided state aid rules are observed. Given that Exchequer funding is made available to very many charitable organisations, this is in effect happening.

The tax code provides exemption for charities from income tax, corporation tax, capital gains tax, deposit interest retention tax, capital acquisitions tax, stamp duty, probate tax and dividend withholding tax. Charities also benefit significantly from the uniform scheme of tax relief for donations introduced in the Finance Act 2001 which, for the first time, allowed tax relief on personal donations to domestic charities and other approved bodies. The relief is based on the taxpayer's marginal rate which for an individual donor could be as high as 42%. In the case of donations from the PAYE sector the relief is given directly to the charities.

Hospital Staff.

Caoimhghín Ó Caoláin

I thank the Minister of State, Deputy Conor Lenihan, for attending to give the response on behalf of the Minister. I also thank the Ceann Comhairle for the opportunity to raise this important matter on the Adjournment as it concerns the care of patients with cancer in the constituency we both represent.

I acknowledge the work of the Irish Nurses Organisation in highlighting the issue I raise. It is surely one of those cases which completely baffles people when they contemplate the state of our health services and the way in which the Health Service Executive and Department of Health and Children operate them. The issue is the need to appoint an oncology liaison nurse to Cavan General Hospital. Oncology liaison nurses provide specialised advice and counselling for patients diagnosed with cancer, as well as a valuable channel of communication between the patients and the oncology team which provides their medical treatment.

In February 2004 the Irish Cancer Society funded a half-time post for an oncology liaison nurse at Cavan General Hospital and a half-time post in the Lourdes Hospital in Drogheda. The local cancer steering committee agreed to fund the other half of the post for Cavan General Hospital. Despite this funding, the position has not been filled because the Health Service Executive has failed to act to permit the appointment.

It is scandalous that a post for which funding is available and which could be providing a very valuable service for cancer patients has not been filled. The Health Service Executive has let down cancer patients in the Cavan-Monaghan catchment area served by Cavan General Hospital. I understand that the Irish Cancer Society can no longer hold its funding for the post and if the HSE does not act it will be lost. This would be a huge disservice to cancer patients.

An oncology liaison nurse in St. Luke's Hospital describes her work as follows:

My role is one of support during diagnosis of cancer and throughout subsequent treatment. I also provide an extra channel of communication between the patient, their family and the oncologist. This helps to ensure that both patient and family understand exactly what lies ahead. In many cases I can help to answer questions and help to alleviate unnecessary fears. I believe that by giving people information, time and support, there is a real benefit for the patient's psychological and emotional health, both during hospitalisation and later on at home.

I commend the Irish Nurses Organisation for highlighting both the need for this post at Cavan General Hospital and the unacceptable approach of the HSE. Cancer patients need and deserve better than this and I urge the Minister of State, the Minister for Health and Children, Deputy Harney, and the HSE to act immediately to fill this post, otherwise, we will tragically lose the commitment to fund same.

Mr. C. Lenihan

From the outset, I personally wish the Deputy and his party well in terms of the re-establishment of both an Executive and an Assembly in the North. I will take this Adjournment matter on behalf of my colleague, the Minister for Health and Children, Deputy Harney.

The strategy for cancer control, launched by the Minister in June, makes recommendations on the organisation, governance, quality assurance and accreditation across the continuum of cancer care from health promotion, prevention and screening through to treatment services, supportive and palliative care and research. There is a strong emphasis in the strategy on health promotion, addressing inequalities and quality assurance. The Minister is committed to providing quality cancer care to the people of Ireland on an equitable basis regardless of where they live. Deputy Ó Caoláin will take sustenance from that assertion.

As the Deputy will be aware, the organisation and management of the health services is the responsibility of the Health Service Executive. That is precisely why the executive was set up, to deliver services on an equitable basis across the country, free from political or other interference or pressure.

The Health Service Executive has advised the Department of Health and Children that in 2005, the Irish Cancer Society offered to part fund a post for an oncology liaison nurse at Cavan General Hospital. It was not possible to fill the post at that time. However, the Department has been informed that the filling of the post is being actively pursued by the Health Service Executive.

In fairness to the Minister for Health and Children, the Deputy has received a strong reassurance that an active process is under way to fill that vacancy. I hope for his sake and the sake of his constituents that happens.

The Dáil adjourned at 10.25 p.m. until10.30 a.m. on Wednesday, 29 November 2006.