Skip to main content
Normal View

Dáil Éireann debate -
Wednesday, 22 May 2013

Vol. 804 No. 2

Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2013: Report and Final Stages

Bill recommitted in respect of amendment No. 1.

Amendments Nos. 1, 8 to 12, inclusive, and 17 are related and may be discussed together.

I move amendment No. 1:

In page 3, to delete line 8 and substitute the following:

"2010, to provide for the cessation of mobile communications services where necessary for the aversion of serious threats, and to provide for related matters.".

This amendment provides for a change to the Long Title of the Bill which arises from the amendments being introduced to the Bill as Part 3. As discussed during the debate on the motion, the purpose of these provisions is to allow for mobile phone services to be shut down in response to a serious threat. Amendment No. 8 provides for a definition section, section 14, for the purposes of Part 3. Key terms are defined and draw, where appropriate, on existing statutory provisions. For example, the definition of "mobile communications service" refers to a publicly available electronic communications service which is defined in the Communications Regulation Act 2002. A key definition is that of "serious threat" which forms the basis for any consideration of the exercise of the powers contained in this part. The powers conferred under it will be available only where a serious threat is imminent.

Amendments Nos. 9 to 12, inclusive, sections 15 to 18, inclusive, deal with the provisions relating to authorisations. Amendment No. 9 which provides for section 15 contains the conditions justifying an authorisation by the Minister. The Minister may only give an authorisation if satisfied that there are serious grounds for believing there is a serious threat that cessation of mobile phone services within a geographical area would assist in averting the threat and having regard to all the circumstances, including the importance of maintaining mobile phone services in the area concerned and the effect on users, the cessation of services is necessary and proportionate.

Amendment No. 10 which provides for section 16 governs the making of an application to the Minister for an authorisation. It must be made in writing by a member of the Garda Síochána not below the rank of assistant commissioner and include sufficient information to enable the Minister to determine whether the conditions for issuing an authorisation are met. The application should be made in writing. However, in cases of exceptional urgency it can be made orally and confirmed later in writing. The Minister shall make inquiries necessary to his or her consideration of the application. Subsection (7) provides for the Minister, for reasons of public safety or security or essential interests of the State, to refuse to disclose various matters relating to an authorisation.

Amendment No. 11 which provides for section 17 sets out the manner in which an authorisation is given and the conditions governing an authorisation. An authorisation must be given in writing. In exceptionally urgent cases it may be given orally, but it must be confirmed in writing. An authorisation may remain in force for 24 hours only. An authorisation will permit a garda of chief superintendent rank or higher to issue directions to undertakings as licensed mobile phone companies.

On a point of order, I am trying to listen to the Minister. If the Minister for Health and the Chairman of the Oireachtas Joint Committee on Health and Children want to discuss the heads of the new abortion Bill, they should be asked to do so outside the Chamber. I cannot hear the Minister. I am being distracted.

It is a different matter altogether.

Does the Acting Chairman hear that arrogance? Is it allowed? Can Members comment from there?

The only person who can comment, as the Deputy well knows, is the Minister who is in possession.

I have raised a point of order.

I have heard the Deputy's point of order and the matter has been resolved.

As I was saying, it shall specify a maximum duration of six hours for any cessation period. The authorisation may contain other terms and conditions considered necessary in the circumstances. In reply to a query Deputy Mattie McGrath raised earlier, the period is 24 hours. The initial direction can be for six hours at any time within the 24 hours and if the chief superintendent reaches a conclusion after six hours that there may be a need for a second direction, a second direction may arise.

Is that during the 24 hour period?

That is during the 24 hour period and it cannot go beyond 24 hours. In a practical reflection of the fact that not all circumstances are foreseeable, amendment No. 12 proposes that section 18 provide for an authorisation to be varied or extended.

Amendment No. 12 proposes that section 18 provide for an authorisation to be varied or extended. However, this is subject to all of the same conditions applicable to the making of an authorisation contained in sections 16 and 17. Section 23, which is provided for by amendment No. 17, provides for the Minister’s functions under this Part to be carried out by a nominated officer. The Minister may only nominate officers for this purpose of assistant secretary grade or higher level.

I commend these amendments to the House.

If the mobile telephone network has to be disabled, will the Minister detail for us if it will affect the entire country or is it broken down into particular zones? Will there be a cordon around a particular area of threat?

Technically, my understanding is that it would be very unusual for such an action to affect the entire country. Theoretically, if the entire country were under threat, then it would be possible. The reality, as happened in Boston recently, is that an area may be identified as having a threat and coverage would be shut down there. It would be highly unlikely that such an event would apply to the entire country but there are circumstances in which it could. For example, it could apply to the entire country if there were serious and substantive intelligence available to an Garda Síochána which indicated a major incident would occur within a particular timeline but there was not absolute clarity as to the location at which it would occur. Under the circumstances in which these powers have been used in other jurisdictions, it has been normally confined within a discrete area. The technology available to mobile telephone companies allows them to do that.

These amendments are an abuse of process as they have nothing to do with the original Bill which deals with money laundering and financing terrorism in what the Minister described as a technical Bill. It is debatable as to whether it is a technical Bill but it certainly has nothing to do with these amendments. Amendments which fundamentally change the Bill’s character and involve giving the Minister for Justice and Equality, as well as his successors, pretty draconian powers by any definition should not be brought in at the last minute or tacked on to a Bill that has nothing to do with the issues they concern. The only explanation for this odd state of affairs where the Minister introduces these extraordinary amendments to a Bill which has nothing to do with the issues in them can be the timing in advance of the forthcoming G8 summit in Fermanagh. There is simply no other reason it would have to be rushed in this way, other than the fact that Minister is meeting a schedule to prepare for the G8 summit. He should at least admit that and tell us why he is in such a rush to bring this legislation which, at the very least whatever he may think, requires serious scrutiny.

There is an irony in the Minister accusing others of engaging in conspiracy theories when the whole basis of these amendments is a conspiracy theory that there is a real and imminent threat to cause explosions when there is no basis for such an assertion whatsoever. These supposed threats must be justified by the Minister. He must give us credible evidence that such a threat exists, that these powers are necessary and proportionate, and that they are likely to be effective in dealing with such a threat, if it exists.

The Minister, of course, does not want that serious scrutiny of these amendments because that is not the purpose of this Bill. This set of amendments is timed to coincide with the preparations for the G8 summit. It is cynical to engage in this.

Will the Minister give us an assurance that these powers will not be abused during the G8 summit or other protests? I do not accept the rationale behind these amendments. I have not heard sufficient argument from the Minister’s side to justify the amendments. Even if I accepted the rationale, should he not make a distinction between a bomb threat, a weapons threat and peaceful protests? The definitions as they stand are vague. They refer to possible threats to human life. How will these be construed? If the Minister said there was credible evidence that people were running around with guns in a particular vicinity threatening lives, then he might have a more credible argument for saying we need these powers. However, the amendments as they stand are much more vague and general than that.

As I see it, there is nothing whatsoever in the way these amendments are worded to stop the Minister and the Garda making the decision to turn off mobile phone communications in and around a protest. It is not a conspiracy to suggest that such actions may be considered. I refer again to my experience in Genoa during protests at the 2001 G8 summit. It was not a funny experience as much as the Minister might smile wryly about it. A young man was killed there by Italian police. It produced a huge reaction from the Italian people about what went on. What happened there was absolutely disgraceful. It might be of interest for the Minister to know that the Italian justice Minister directing these actions at the time was Gianfranco Fini, a fascist supporter, an ideology the Minister opposes.

What is to stop a Minister in the future abusing these powers? That needs to be discussed and that is why these amendments should not be tacked on in this way. I do not trust the timing or the rationale behind the provisions. There are also serious questions as to how these powers could be abused in the future. They should be debated separately from what the Minister describes as a technical Bill.

There you go again. The Bill is very clear. It is about the protection of life. It is not, as the Deputy is suggesting, about preventing peaceful demonstrations. Not all the demonstrations we have seen occur at G8 meetings have been peaceful. I have absolutely no doubt that in the context of those demonstrations many people participated in good faith with peaceful intent. They had genuine issues about which they were concerned. Unfortunately, as we know, some of these demonstrations have been infiltrated by others who do not have peaceful intent and have behaved extremely violently in locations with which the Deputy would be familiar. I do not know if he follows every G8 summit and demonstrates personally at each one but he will have witnessed what I have described.

If there are difficulties at a demonstration, it is always important that any conduct of police is proportionate and appropriate to the events taking place.

The Deputy and I do not disagree on that issue and occupy the same space. We may disagree politically in our perceptions of the world, but it is always important, first, that people are allowed to peacefully demonstrate; second, that, in the context of policing and security issues, the police behaves in a reasonable and proportionate manner; and, third, that the State does what is necessary to protect lives of citizens and others who visit the State.

I wish the world was as simple as the Deputy believes it to be. I wish there were no terrorist threats or individuals who are convinced by a variety of ideologies, whether it be fascism or Islamic extremism, or individuals who have a view of the world that results in their engaging in violence. I wish that did not happen, but the sad reality is that this still happens on this island. Let us not pretend it is still not a problem. It is not the problem that it used to be, but it remains a problem. It is appropriate, therefore, that we are dealing with this issue today. On 22 May 1998 the overwhelming majority of people on this island voted in favour of the Good Friday Agreement. They voted for an end to terrorism and in favour of peace and dialogue. It is right that we note that today is the 15th anniversary of the vote on the Agreement. The sad reality is that there is still on this island a group of criminal terrorists intent on murder and mayhem who have no mandate and no interest in the democratic view of the overwhelming majority of the people.

In the context of his own approach to political issues, the Deputy should not forget this. A constable and a prison officer have been shot dead in recent times in Northern Ireland. Attempts have been made to blow up individuals, including members of the PSNI. Following the good work done by the police forces on the island, a number of potential atrocities have been prevented. The Deputy seems to think it is a bad thing that people coming to the island to attend the G8 conference should be safe and secure. The Taoiseach will attend the meeting representing the European Union. We should be proud of the fact that he will attend the meeting and represent the voice Europe can express at such meetings which are of substantial importance. I presume that, whatever his political differences with the G8 leaders, the Deputy will agree that those attending the meeting, in the context of the democratic values he supports, are entitled to participate and engage in their discussions without a threat to their lives and that it is important that those who accompany them, some of whom may be on this side of the Border, with others on the far side of it, are afforded the maximum protection necessary of the State against individuals who may engage in terrorism. That issue is relevant to this measure and I do not pretend otherwise, but the measure is not being enacted solely because of the G8 conference. We need it in our law to bring our protective measures up to date having regard to the way technology has developed and the possibility of individuals remotely detonating explosive devices. It is as simple as that. It has nothing to do with stopping people from demonstrating peacefully and it is extraordinary that the Deputy should think so.

It is also extraordinary that a small number of Members stood up to oppose us dealing with this matter today. This is not an abuse of the House because it has been, on occasion, the practice in the House that where there is a need to deal with an issue of importance and where the legislation has been prepared, for it to be recommitted. I did this many years ago in the context of an important measure which had nothing to do with this area - the Judicial Separation and Family Law Reform Bill 1987. There was a need to recommit it in order that provisions the then Fianna Fáil Government had removed on Committee Stage could be restored to protect women and children. There is nothing extraordinary about recommitting a Bill. One of the amendments we are discussing will ensure the legislation is entitled, the Criminal Justice Bill 2013. It will be suitably titled and not confined to money laundering issues. In circumstances where an overwhelming majority of the House recognise that it is necessary to deal with this issue, there is not an abuse of process. I am not surprised at some of the Deputies who stood up to oppose us dealing with it, but I am surprised Deputy Stephen S. Donnelly joined the group. Perhaps he was wrong footed and did not know what the vote was about.

Deputy Richard Boyd Barrett said this power might be used to disrupt a peaceful demonstration. If he had read the Bill, he would know that is not so. I refer to section 50 which provides for the conditions for the authorisation being granted. They are reasonable grounds for believing there is a serious threat; a reasonable prospect that the cessation of a mobile communications service within a geographical area - the issue raised by Deputies Mattie McGrath and Niall Collins - would be of material assistance in averting that threat; and, having regard to all the circumstances, including the importance of maintaining the availability of the mobile communications service in the geographical area concerned and the effect of the cessation on users, the giving of authorisation is necessary and proportionate to its objectives. If that section was taken on its own, I would understand the Deputy having concerns that a reference to a serious threat might result in this provision being invoked by a Minister who believed people should not be allowed to demonstrate and that demonstrations posed a serious threat, but he has not read the definition of "serious threat":

'serious threat' means an imminent threat that--

(a) an explosive or other lethal device will be activated by use of a mobile communications services provided in the State by an undertaking; and

(b) that activation of that explosive or other lethal device is likely to cause--

(i) death of a person;

(ii) serious bodily injury to a person; or

(iii) substantial damage to property.

If a building is blown up, that may cause substantial injury to persons. The definition of "serious threat" has nothing to do with peaceful demonstration. I presume the Deputy does not suggest that if someone is participating in a peaceful demonstration who has planted a bomb and has a mobile device with which to detonate it, the State should ignore this.

This is not an issue. People have a constitutional right to engage in peaceful demonstration through the constitutional right to assembly. It has been in the Constitution since 1937, which replicates provisions in the 1922 Constitution. The legislation provides in discrete and limited circumstances for a basic authorisation to facilitate members of An Garda Síochána in the context of a modern legal framework to save lives and prevent the detonation of bombs by those intent on murder and mayhem. It is not a unique provision, as it is to be found in legislation elsewhere. If it had been possible to bring forward the provision, for example, in a separate Bill, I would have done so. It had to go through the drafting process and we had to proof it. This all takes time to ensure we provide the necessary checks and balances and the provisions are not excessive. These provisions were not invented overnight.

A significant amount of work must be done to get the balance right, to provide for how the exercise will be done and to deal with issues relating to telecommunications companies. There is no conspiracy in this; it is about protecting human life. I do not believe there is any reason we should be less concerned about protecting the lives of eight of the world's leaders who will be on this island together with all the individuals who will come with them as backup. That is important. It is equally important we protect the lives of everyone who lives on this island. It is important, for example, that if a criminal terrorist group, based on this island, either North or South, with nothing to do with the G8 meeting, decides to resort to this type of explosive device, we have the facility to use the powers that exist here to protect lives.

I will not labour the debate. We differ in our views on it but I will respond once more to the points the Minister made and will leave it at that. If I understand him correctly, the Minister seems to be acknowledging that there is a link between the last minute bringing forward of these amendments and the proximity of the G8 summit. I find that timing a serious matter of concern, in particular where things are happening around the G8 summit which I do not believe are justified. It is extraordinary that it has been announced that a military base will be opened in the North to detain, or possibly detain, protestors and that special sittings of the courts will be held on a Sunday. It is really extraordinary that drone planes will be deployed, which we know best as planes deployed in Afghanistan with devastating consequences and around which there are very serious moral questions about their use at all. It is also extraordinary that 3,500 police will be brought over from Britain. Let us be honest, they are not short of police in the North in the first place.

It is against this background that the Minister rushes in legislation which gives seriously draconian powers to the Minister to cut off mobile telephone communications if he or she believes there is a serious threat, as defined by him or her. I do not believe these things are coincidental, and the Minister seems to be acknowledging that there is a link. He asked if I was disputing protection for people from attack. Of course, there should be protection. I am opposed to terrorism and to unrepresentative minorities trying to use force to achieve political ends, but I do not believe there is any evidence that such a threat exists to the G8 summit in the North despite the level of mobilisation of security and police forces. In terms of the general level of hysteria being whipped up, these amendments are part of that because the legislation is being rushed through. Why rush it through other than to play our part in creating a certain type of atmosphere around the G8 summit? The big thing one needs to think about is the possibility of a conspiracy, to use the Minister's words, or a potential conspiracy to bomb the G8 summit. Has the Minister any evidence of, or has it been suggested to him by anybody, that such a threat exists that necessitated him rushing these amendments through? I would like to know. If the Minister said we have serious intelligence that such an attack might take place, that certain groups are believed to be active in considering such an attack and that this, therefore, justifies us bringing forward last minute amendments giving us these powers, we would at least have to take the discussion a bit more seriously but he has not said that, nor have I heard it said anywhere else. All we have is police, politicians and governments creating this massive security operation around the meeting of eight individuals. I do not believe it is justified but I believe there is a political purpose to it.

I am afraid there is a history of this, and it is not a conspiracy. People in Italy will tell the Minister about a long history of using what is known as the strategy of tension in advance of protests in order to justify big police operations, usually resulting in confrontations at the time of the protests, and to portray protestors as people likely to engage in violent acts, or acts of violent confrontation. It creates a certain atmosphere which is not justified.

People will protest, and I will be one of them. There will be significant mobilisation in the North and in the South but it will be made up of anti-poverty groups, NGOs and trade unionists talking about issues of global poverty, militarisation and so on. We probably disagree on a lot of the issues but they are entirely legitimate points to be made. There is absolutely no doubt that this kind of thing will scare people and I do not think it is justified. I think the Minister and the police in the North know it will scare people when they hear 3,500 police will be mobilised.

At a very simple level, if one is a parent and decides one wants to protest but thinks there is a possibility mobile telephone communications could be switched off for six hours while one is in Fermanagh and that there is a possibility one might not be able to telephone one's children if anything happens, there is absolutely no question but that would be a deterrent and certainly some people - maybe this Government - are conscious of that.

This has happened repeatedly around these summits. The Minister said there is evidence of people engaging in violent confrontation at these protests but there is not that much evidence. It is now emerging that the vast majority of the violence in Genoa was orchestrated by the Italian police, including some of the so-called protesters engaged in protests. There are serious investigations into police involvement in stirring up the violence in Genoa. I was there and that was very evident. Police columns came out of nowhere and brutally attacked peaceful protesters with the result that one of them, Carlo Giuliani, was killed. It is not paranoia; there is a record and experience of this. I do not believe this is justified on that basis. The Minister said the words "serious threat" refer specifically to explosion but the point is that he and the police authorities will be the ones who will decide what construes a serious threat.

Over the past decade or so - this is not something the Minister can dispute - there has been a pattern of talking about terrorist threats to justify various extraordinary measures, including massive military interventions, which have had pretty horrendous consequences. It, therefore, concerns me that language is now being bandied around in Ireland. We have a history of conflict in the North, of paramilitary groups and so on and the Minister is right to talk about the anniversary. The vast majority of people in the North do not want violence, which ended precisely because they did not want it.

I do not think there is a particular threat from these groups to the G8. Perhaps the Minister might suggest there is evidence of such a threat. If the threat is not coming from them, where else in the country is it coming from? Do we really want to have these draconian powers and create this atmosphere when there is no such threat? I do not know whether the Minister, the American Government or the British Government are pressing for this. I do not know from where the pressure for it is coming. To my mind, it is absolutely unjustified. At the very least, it deserves more serious scrutiny. This should have happened over a longer period. It should not have been rushed just to facilitate the agenda of the G8.

The cessation of mobile phone communications is provided for in this legislation, which I support. I outlined my reasons during the earlier debate. If it has to be done once or twice in a 24-hour period, is there scope for the mobile phone companies to refuse to do it? I certainly hope not. What will happen if they are asked to stop providing blanket coverage, but they do not do so properly? Will they be able to seek compensation? Almost every child over the age of ten has a mobile phone, unfortunately. There is huge interest in this powerful business and I use it as much as anyone. As a resident of south Tipperary, I recall President Reagan's visit to Ballyporeen in 1984. We all remember President Obama's visit to Moneygall, near the Tipperary-Offaly border, two years ago. We need proper powers to deal with such visits. The people concerned might be involved in wars and other conflicts that we might or might not support. The threat might not come from this country; it could come from abroad. This country would be laughed at if something major were to happen and we were unable to provide security for the visiting dignitaries. We expect the same security for our leaders when they travel abroad. We want them to be safeguarded and minded.

I remember the legislation passed after the O'Connell Street riots a few years ago. Incidentally, I was subsequently charged under that legislation. Thankfully, a jury in court found me totally innocent of any such charge. I think it related to directing terrorism. I saw a number of protests outside Leinster House last fall that were hijacked by a group called Éirígí and I happened to be in the middle of one of them. I got caught up in it when I was coming back to this House. Peaceful protest is being damaged. I fully support people's right to peaceful protest. I have spoken about this group in the House previously. It infiltrated a demonstration organised by certain politicians; its members got up on the backs of lorries to incite people. I saw them spitting at gardaí and belting them with flagpoles. They fired explosive crackers onto the ground to create flames which erupt within minutes. It was nasty. It is not acceptable for such persons to damage the right of peaceful protestors to raise various issues. I think one of the issues involved the pro-choice campaign and this crowd were there again. They were there another evening when a Bill was being debated here. It is alarming, worrying and disconcerting because they have no mandate. If people want to engage in a peaceful protest, they are entitled to do so. We cannot allow any small group to continually interrupt such demonstrations in order to cause bedlam and mayhem by attacking gardaí and protestors. They have to be reined in.

I will deal with the matters raised in reverse order. Deputy Mattie McGrath raised an important point. I draw his attention to amendment No. 18, which deals with offences. If a mobile phone company fails to comply with a direction issued to it, the individuals responsible will be liable to criminal prosecution. That is a very specific power.

I will not respond at any great length to what Deputy Richard Boyd Barrett said, as we have both addressed the issue. He has his view and I have mine. I will draw certain matters to his attention. As Minister at the Departments of Justice and Equality and Defence, I am very conscious that the Garda and the Defence Forces, unfortunately, have a wealth of experience of dealing with threats posed by improvised explosive devices. These incidents do not receive a large amount of publicity and no one seeks publicity for them. In 2012 the Garda and the Defence Forces dealt with 96 such cases. The brave members of the Defence Forces were called out by the Garda on 96 occasions last year to deal with the threat of explosive devices. The Defence Forces deal with these matters with great professionalism and these incidents were dealt with very successfully. I hope the Deputy will understand that, for security reasons, it is not appropriate for me to elaborate further on them.

We have a problem in this area, about which Deputy Richard Boyd Barrett should be under no illusion. I am not saying I know of a major threat in relation to the G8 summit. I am saying we should apply the precautionary principle to ensure any tool necessary to protect human life is available to us. The G8 summit could become a focus for a group that might resort to the use of some sort of explosive device to make a point or a name for itself. It has nothing to do with peaceful demonstrators. I will be very happy to welcome to this country people of divergent political views who want to sit down to debate and discuss issues openly. It is often really important to challenge the conventional wisdom in these areas. When that happens, it is important for those who hold different views to be able to substantiate them. I have no difficulty with the arrival in this country of people whose views differ from those of the G8 leaders. I have no difficulty with people demonstrating peacefully. I emphasise that it should be peaceful - people's access to attend meetings should not be obstructed. I have no difficulty with people organising alternative meetings, debating issues and disagreeing with the G8 leaders. I have no difficulty with any of this. However, I have a duty as Minister for Justice and Equality to ensure we do what we can to protect human life. We have to keep our law in touch with modern technology. That is what this is about. It is about nothing more than this.

Amendment put and declared carried.
Bill reported with amendment.

As amendments Nos. 2 and 3 are related, they may be discussed together.

I move amendment No. 2:

In page 3, to delete lines 10 to 12 and substitute the following:

"PART 1

Preliminary and General

Short title, collective citation and commencement

1. (1) This Act may be cited as the Criminal Justice Act 2013.

(2) The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and Part 2 may be cited together as the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 and 2013.

(3) Part 2 shall come into operation on such day or days as the Minister for Justice and Equality may appoint by order or orders, either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.".

These are consequential amendments which arise from the insertion in the Bill of the new Part 3. They provide for a Part 1 which deals with the Short Title, collective citation and commencement and the insertion of a Part 2 in the Bill. I commend the amendments to the House.

Amendment agreed to.

I move amendment No. 3:

In page 3, between lines 12 and 13, to insert the following:

"PART 2

Amendment of Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

Definition (Part 2)

2. In this Part, "Act of 2010" means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.".

Amendment agreed to.

I move amendment No. 4:

In page 4, between lines 10 and 11, to insert the following:

"Amendment of section 25 of Act of 2010

4. Section 25 of the Act of 2010 is amended—

(a) in subsection (1) by the substitution of the following for paragraph (d):

“(d) subject to subsection (1A), a relevant independent legal practitioner,",

and

(b) by the insertion, after subsection (1) of the following subsection:

"(1A) A relevant independent legal practitioner shall be a designated person only as respects the carrying out of the services specified in the definition of 'relevant independent legal practitioner' in section 24(1).".".

This is a technical amendment. Its purpose is to clarify that the obligations which arise for a "relevant independent legal practitioner" as a designated person apply only when such practitioners are carrying out the services listed in the definition of "relevant independent legal professional" contained in section 24(1) of the 2010 Act.

The Deputy should note that section 25 lists the designated persons to whom the obligations under the Act apply, and these include bodies such as credit and financial institutions, auditors and accountants, and relevant independent legal professionals. The latter is a group which includes barristers, solicitors and notaries and for whom the money laundering obligations only apply to the particular services specified in section 24(1). The obligations do not apply to any other legal service that a solicitor or barrister might provide to a client. I commend the amendment to the House.

Amendment agreed to.

I move amendment No. 5:

In page 7, between lines 10 and 11, to insert the following:

"Amendment of section 60 of Act of 2010

11. Section 60(2)(b)(ii) of the Act of 2010 is amended by the substitution of "through officers and members" for "through officers, members or employees".".

The purpose of this amendment is to clarify that a designated accountancy body is not obliged to act as the competent authority for a company purely because an employee of the company is a member of the designated accountancy body. Section 60 of the Act of 2010 sets out the competent authorities for the different types of designated persons. Such competent authorities include the Central Bank, designated accountancy bodies, the Law Society, the Bar Council and myself, as Minister for Justice and Equality.

Section 60(2)(b)(ii) provides that if the designated person - who is an auditor, external accountant, tax adviser or trust or company service provider - is not a member of a designated accountancy body and is either a body corporate or a body of unincorporated persons carrying out its functions through officers, members or employees who are members of a designated accountancy body, it is that designated accountancy body which takes the role of the competent authority. This amendment removes the reference to "employee" in that provision. The anti-money laundering compliance unit, AMLCU, of my Department, which has responsibility for monitoring the anti-money laundering obligations for a number of areas, will take on such a role for any such body concerned. I commend the amendment to the House.

Amendment agreed to.

Amendments Nos. 6 and 7 are related and may be discussed together.

I move amendment No. 6:

In page 7, between lines 36 and 37, to insert the following:

Amendment of section 84 of Act of 2010

12. Section 84 of the Act of 2010 is amended—

(a) by the renumbering of the section as subsection (1),

(b) by the insertion, in subsection (1), after the definition of “principal officer” of the following:

“ ‘subsidiary’ has the meaning assigned to it by section 155 of the Companies Act 1963;”,

and

(c) by the insertion after subsection (1) of the following subsection:

“(2) (a)Subject to paragraph (b), in this Chapter a reference to the Minister shall, in a case where the applicant for or the holder of an authorisation is a subsidiary of a credit or financial institution, be construed as a reference to the Central Bank of Ireland.

(b) Paragraph (a) does not apply to—

(i) section 88(5),

(ii) sections 89(5)(b)(ii), 90(3)(b)(ii), 93(6)(b)(ii), 97(6)(b)(ii), 98(2)(b)(ii) and 100(2) in so far as those provisions relate to the specifying of a form by the Minister,

(iii) section 94(3),

(iv) section 101,

(v) section 104(8),

(vi) section 106(7).”.”.

The purpose of these amendments is to provide that subsidiaries of a credit or financial institution operating as a trust or company service provider, known as a TCSP, are authorised and monitored by the Central Bank rather than myself, as Minister for Justice and Equality. Chapter 9 of the Act of 2010 deals with the authorisation of TCSPs which fall within my remit under that Act and includes detailed provisions in regard to the authorisation process. Section 84 provides that a credit or financial institution which carries out TCSP activities does not require authorisation under that chapter. The reason for this is the Central Bank is the competent authority for credit and financial institutions under this Act and already has wide-ranging regulatory and related functions in regard to such bodies under the Central Bank and related legislation. However, since the 2010 Act came into force, it has emerged that there are some subsidiaries of credit and financial institutions which are operating as TCSPs and, under the provisions of the Act, fall within my remit rather than the Central Bank. I believe the latter is the more appropriate authority.

Amendment No. 7 deals with consequential technical amendments which are required to be made to sections 98, 103 and 104. I commend the amendments to the House.

Amendment agreed to.

I move amendment No. 7:

In page 7, between lines 36 and 37, to insert the following:

Miscellaneous amendments to Act of 2010

13. The Act of 2010 is amended—

(a) in section 98 by the substitution of “the reasons” for “the Minister’s reasons” in subsection (2)(a),

(b) in section 103(1) by the substitution of “to assist in carrying out” for “to assist him or her in carrying out”, and

(c) in section 104—

(i) in subsection (3) by the substitution of “at an office in the State” for “at an office of the Department”, and

(ii) in subsection (4) by the substitution of “during ordinary business hours” for “during the ordinary business hours of the Department”.”.

Amendment agreed to.

I move amendment No. 8:

In page 8, to delete lines 16 to 25 and substitute the following:

“PART 3

Cessation of Mobile Communications Service in Response to Serious Threat

Definitions ( Part 3 )

14. In this Part—

“activate”, in relation to an explosive or other lethal device, includes discharge and detonate;

“authorisation” means an authorisation given under section 17;

“cessation” means the cessation by an undertaking, in compliance with a direction, of the provision of a mobile communications service within a particular geographical area;

“cessation period” means the period, referred to in section 19(3)(c), during which an undertaking is directed, under a direction, to cease providing a mobile communications service;

“direction” means a direction issued under section 19;

“electronic communications service” has the same meaning as it has in section 2 of the Communications Regulation Act 2002;

“explosive or other lethal device” has the same meaning as it has in section 10(9) of the Criminal Justice (Terrorist Offences) Act 2005;

“geographical area” means a geographical area that covers all or a part of the State;

“Minister” means the Minister for Justice and Equality;

“mobile communications service” means a publicly available electronic communications service that is provided by an undertaking wholly or mainly by means of a mobile terrestrial network;

“serious threat” means an imminent threat that—

(a) an explosive or other lethal device will be activated by use of a mobile communications service provided in the State by an undertaking, and

(b) the activation of that explosive or other lethal device is likely to cause—

(i) death of a person,

(ii) serious bodily injury to a person, or

(iii) substantial damage to property;

“undertaking” means a person who is for the time being authorised or licensed in the State to provide a mobile communications service;

“user” means a person using a mobile communications service, for private or business purposes, whether or not he or she has subscribed to that service.”.

Amendment agreed to.

I move amendment No. 9:

In page 8, after line 25, to insert the following:

Conditions justifying authorisation

15. (1) The Minister may give an authorisation where, and only where, he or she—

(a) has received an application under section 16, and

(b) is satisfied that the conditions referred to in subsection (2) have been met.

(2) The conditions referred to in subsection (1)(b) are:

(a) that there are reasonable grounds for believing that a serious threat exists;

(b) that there is a reasonable prospect that the cessation of a mobile communications service within a geographical area would be of material assistance in averting that threat;

(c) that having regard to all the circumstances, including the importance of maintaining the availability of the mobile communications service in the geographical area concerned and the effect of a cessation on users, the giving of an authorisation is necessary and proportionate to its objectives.”.

Amendment agreed to.

I move amendment No. 10:

In page 8, after line 25, to insert the following:

Application for authorisation

16. (1) An application for an authorisation shall—

(a) subject to subsection (2), be made in writing by a member of the Garda Síochána not below the rank of Assistant Commissioner (in this Part referred to as “the applicant”),

(b) include sufficient information to enable the Minister to determine whether the conditions specified in section 15(2) are met in relation to the authorisation being applied for, and

(c) include a statement by the applicant that he or she has reasonable grounds for believing that a serious threat exists.

(2) (a) The Minister, where he or she is satisfied that the case is one of exceptional urgency, may consider an application under this section that is made orally.

(b) Where paragraph (a) applies, the applicant concerned shall, as soon as possible, confirm the application in writing to the Minister.

(3) The Minister shall consider an application under this section and shall make any inquiries he or she thinks necessary for that purpose.

(4) Where, having considered an application under this section, the Minister refuses to give an authorisation, he or she shall notify the applicant forthwith and shall specify the reasons for that refusal.

(5) A notification referred to in subsection (4) may, if the Minister considers that the case is one of exceptional urgency, be given orally provided that the notification shall be confirmed in writing as soon as practicable.

(6) The Minister shall arrange for a record of any notifications given under this section (which shall include the Minister’s reasons for refusing an application) to be kept.

(7) Notwithstanding any other enactment or rule of law, the Minister may, in the interests of public safety or the security or essential interests of the State, refuse to disclose to any person, other than a court—

(a) the fact of an application for an authorisation having been made, or any information or statement contained in it,

(b) the fact of a refusal to give an authorisation,

(c) a notification referred to in subsection (4), or

(d) an authorisation or its content.”.

Amendment agreed to.

I move amendment No. 11:

In page 8, after line 25, to insert the following:

Authorisation

17. (1) Where the Minister, having considered an application under section 16, is satisfied that the conditions specified in section 15(2) are met in relation to the giving of the authorisation which is the subject of the application, he or she shall, subject to this section, give an authorisation to the applicant.

(2) (a) Subject to paragraph (b), an authorisation shall be given in writing and shall be signed by the Minister.

(b) Where the Minister considers that the case is one of exceptional urgency, he or she may give an authorisation orally provided that the authorisation shall be confirmed in writing as soon as practicable.

(c) An authorisation shall remain in force for a period not exceeding 24 hours.

(d) The maximum duration of a cessation period specified in an authorisation shall be a period not exceeding 6 hours.

(e) The Minister shall arrange for a record of any authorisation given under this section, including the reasons for giving such authorisation, to be kept.

(3) An authorisation shall—

(a) state the date on which, and time at which, it is given,

(b) state the period during which it shall remain in force,

(c) confirm that the Minister is satisfied that the conditions specified in section 15(2) have been met in relation to the giving of the authorisation,

(d) permit a member of the Garda Síochána, not below the rank of chief superintendent, at any time while the authorisation is in force, and subject to section 19, to issue a direction to an undertaking, and

(e) specify the maximum duration of the cessation period that can be specified in a direction issued pursuant to the authorisation concerned.

(4) An authorisation may contain such other terms and conditions as the Minister considers necessary having regard to the circumstances.”.

Amendment agreed to.

I move amendment No. 12:

In page 8, after line 25, to insert the following:

Variation or extension of authorisation

18. (1) The Minister, on application made in writing by a member of the Garda Síochána not below the rank of Assistant Commissioner, may vary an authorisation or extend the period during which the authorisation shall remain in force.

(2) Sections 16 and 17 shall apply to an application for the variation or extension of an authorisation, as if the references in those sections to an authorisation were references to the variation or, as the case may be, extension of an authorisation.”.

Amendment agreed to.
Bill recommitted in respect of amendments Nos. 13 to 16, inclusive.

I move amendment No. 13:

In page 8, after line 25, to insert the following:

Direction

19. (1) At any time while an authorisation is in force, a member of the Garda Síochána not below the rank of chief superintendent (in this Part referred to as the “member”) may, subject to this section, issue a direction to an undertaking where, and only where, the member is satisfied that—

(a) the serious threat on the basis of which the authorisation was granted, continues to exist, and

(b) any other means of averting that threat that are at the disposal of the Garda Síochána are less likely to result in the serious threat being averted.

(2) (a) Subject to paragraph (b), a direction shall be issued in writing and shall be signed by the member.

(b) Where the member considers that the case is one of exceptional urgency, he or she may issue a direction orally provided that the direction shall be confirmed in writing as soon as practicable.

(3) Subject to subsection (4), a direction—

(a) shall state the name of the undertaking to which it is issued,

(b) shall state the date and time of the giving of the authorisation pursuant to which the direction is being issued and the period during which the authorisation remains in force,

(c) shall direct that the undertaking, subject to section 20(3), cease providing—

(i) all mobile communications services, or

(ii) specific types of mobile communications services,

for such a period, which shall not exceed 6 hours, and in such a geographical area, as may be specified in the direction,

(d) shall direct that the undertaking take all necessary steps to ensure its compliance with paragraph (c), and

(e) may specify such additional requirements relating to the cessation of the mobile communications service which the member considers necessary for the purpose of averting the serious threat concerned.

(4) A direction shall not—

(a) remain in force beyond the period in which the authorisation concerned is in force,

(b) specify a cessation period that is longer than the maximum duration of a cessation period that is specified in the authorisation concerned, or

(c) specify, under subsection (3)(e), a requirement that is otherwise inconsistent with the authorisation concerned.

(5) A member, where he or she considers it necessary for the purpose of averting the serious threat concerned, may vary the geographical area or a requirement referred to in subsection (3)(e), that is specified in a direction, and subsections (2) and (3) shall apply to such a variation as if references in those subsections to a direction were references to the variation concerned.

(6) In issuing or varying a direction, the member shall have regard to the need to limit the effect of the cessation, on users and on the availability of the mobile communications service in the geographical area concerned, to that which he or she considers the minimum necessary to avert the serious threat concerned.

(7) The Commissioner of the Garda Síochána shall arrange for a record of any direction that is issued under this section to be kept.”.

Amendment No. 13 provides for section 19, which is a core element of Part 3 of the Bill. It contains the power for a member of the Garda Síochána, not below the rank of chief superintendent, to issue a direction to an undertaking to cease providing mobile communications services. Subsection (1) requires a ministerial authorisation to be in force. It also requires the garda to be satisfied that the serious threat on which the authorisation was based continues to exist, and that other means are less likely to avert it. Directions must be issued in writing and signed. There is provision for oral directions in urgent cases, but confirmation in writing is required.

The direction will specify the services to be ceased, the cessation period and the geographical area concerned. The direction may contain additional requirements necessary to averting the serious threat. The cessation period cannot be longer than that set in the Minister's authorisation and, in any case, cannot individually exceed six hours. The terms of a direction, other than the cessation period, can be varied, subject to the requirements in subsections (2) and (3). When issuing or varying a direction, the member of the Garda Síochána must limit the effect of the cessation on the public to the minimum necessary to avert the threat.

Amendment No. 16, which provides for section 22, provides that where the member of the Garda Síochána who issued the direction considers that the direction is no longer necessary, the member must withdraw it without delay and notify the undertaking, which is, obviously, the communications company.

To protect the necessary secrecy of counter-terrorist and security operations, amendment No. 14, which relates to section 20, provides that the likelihood of an imminent authorisation or direction may not be disclosed. In addition, the content or existence of a direction or authorisation may not be disclosed prior to the cessation period and the content may not be disclosed even after that period. This will allow mobile phone companies to explain the cessation of service to customers after the fact, should such explanation be necessary, by referring to the existence of a direction, but without disclosing its content.

Subsection (3) of this proposed section requires undertakings to endeavour to continue to provide emergency service calls. The technology is available, if not yet fully in place, for mobile telephone companies to maintain the availability of 999 services while otherwise effectively shutting down their networks. We will be looking to mobile phone companies to fully live up to their obligations under this subsection. I should also note that landline to landline calls will not be affected by directions and are not encompassed by the terms of the Bill.

Amendment No. 15, which relates to section 21, places similar non-disclosure obligations as apply to undertakings on other persons in regard to the existence and content of authorisations and directions. I commend the amendments to the House.

Amendment agreed to.

I move amendment No. 14:

In page 8, after line 25, to insert the following:

Obligations of undertakings

20. (1) An undertaking that becomes aware that an authorisation is likely to be applied for, or that a direction is likely to be issued shall not—

(a) disclose that fact to any person, or

(b) permit that fact to be disclosed by any member of its staff to any person,

except in so far as may be necessary for the undertaking to take steps to ensure compliance by it with any direction that may be issued to it.

(2) An undertaking to which a direction is issued—

(a) shall comply with the direction,

(b) before the cessation period commences, shall not disclose, or permit to be disclosed by any member of its staff, to any person, the existence or content of the direction or an authorisation referred to in that direction, except in so far as may be necessary to ensure compliance with the direction, and

(c) following the commencement of the cessation period, shall not disclose, or permit to be disclosed by any member of its staff, to any person, the content of the direction or an authorisation referred to in that direction, except in so far as may be necessary to ensure compliance with the direction.

(3) An undertaking to which a direction is issued shall endeavour to continue to provide such a mobile communications service as is necessary to enable emergency service calls to be made and received in the geographical area and during the cessation period to which the direction relates, provided that the continued provision of such a service does not prevent the undertaking from ceasing to provide the mobile communications service, or the specific type of mobile communications service, specified in the direction.

(4) In this section, “emergency service calls” means calls to the emergency services including the Garda Síochána, a fire brigade service, an ambulance service, the boat and coastal service rescue services (including the rescue services provided by the Air Corps), the mountain and cave rescue services or a similar emergency service, using the National emergency call number 999 or the single European emergency call number 112, or such other number as may be specified for such purposes, and calls made by or on behalf of such emergency services in response to such calls.”.

Amendment agreed to.

I move amendment No. 15:

In page 8, after line 25, to insert the following:

Obligations of other persons

21. (1) A person, other than a person to whom section 20(1) applies, who becomes aware that an authorisation is likely to be applied for, or that a direction is likely to be issued, shall not disclose that fact to any person, except in so far as may be necessary for the performance of his or her functions under this Part.

(2) A person, other than a person to whom section 20(2) applies, shall not—

(a) before the cessation period commences, disclose, or permit to be disclosed by any member of his or her staff, to any person, the existence or content of the direction or an authorisation referred to in that direction, except in so far as may be necessary to ensure compliance with the direction, and

(b) following the commencement of the cessation period, disclose, or permit to be disclosed by any member of his or her staff, to any person, the content of the direction or an authorisation referred to in that direction, except in so far as may be necessary to ensure compliance with the direction.”.

Amendment agreed to.

I move amendment No. 16:

In page 8, after line 25, to insert the following:

Withdrawal of direction

22. (1) Where the member who issued a direction considers that the direction is no longer required, he or she shall, without delay—

(a) withdraw the direction, and

(b) notify the undertaking to which the direction was issued of the withdrawal.

(2) A notification referred to in subsection (1)(b) may, if the applicant considers that it is expedient to do so, be given orally provided that the notification shall be confirmed in writing as soon as practicable.

(3) The Commissioner of the Garda Síochána shall—

(a) inform the Minister of the withdrawal under this section of a direction, and

(b) arrange for a record of any notifications issued under this section to be kept.”.

Amendment agreed to.
Bill reported with amendments.

I move amendment No. 17:

In page 8, after line 25, to insert the following:

Nominated officer

23. (1) The functions of the Minister under this Part may be performed by such officer of the Minister, not below the rank of Assistant Secretary, as the Minister may nominate for that purpose.

(2) A reference in this Part to the Minister includes a reference to an officer nominated under subsection (1).”.

Amendment agreed to.
Bill recommitted in respect of amendment No. 18.

I move amendment No. 18:

In page 8, after line 25, to insert the following:

Offences

24. (1) A person who fails to comply with a direction to which he or she is subject shall be guilty of an offence and shall be liable—

(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.

(2) A person who intentionally hinders the compliance by an undertaking with a direction shall be guilty of an offence and shall be liable—

(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.

(3) A person who contravenes section 20(1) or paragraph (b) or (c) of section 20(2) shall be guilty of an offence and shall be liable—

(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.

(4) A person who contravenes section 21 shall be guilty of an offence and shall be liable—

(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.

(5) (a) Where an offence under subsection (1), (2), (3) or (4) is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to have been attributable to any wilful neglect on the part of, any person, being a director, manager, secretary or any other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(b) Where the affairs of a body corporate are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(6) A court hearing proceedings for an offence under this section, including any appeal or subsequent proceedings, may, on its own motion or on the application of the Director of Public Prosecutions, order that the proceedings, or part of them, be held otherwise than in public.”.

This amendment, which provides for section 24, contains a number of offences, all of which carry penalties of class A fines and/or 12 months' imprisonment on summary conviction or an unlimited fine or five years' imprisonment on conviction on indictment.

Amendment agreed to.
Bill reported with amendment.
Bill, as amended, received for final consideration and passed.
Top
Share