I welcome Mr. Seamus Carroll, principal officer from the Department of Justice, Equality and Law Reform and I ask him to introduce his colleague.
Private Security Services Bill 2001: Presentation.
Mr. Seamus Carroll
My colleague is Aileen Harrington, assistant principal officer, also in the civil law reform section of the Department of Justice, Equality and Law Reform.
Thank you very much. You are both very welcome and I thank you for attending the meeting.
The purpose of this portion of the meeting is to provide members of the committee with a briefing on the Private Security Services Bill. A copy of the briefing document has been circulated to members. At a meeting held on 29 January with representatives of the private security industry the various issues involved in the new Bill were discussed. Today we are focused primarily on the content of the Bill. The briefing will be followed by a short question and answer session. Is that agreed? Agreed.
I now invite Mr. Carroll to make his presentation. Before you start, Mr. Carroll, as you are aware, although members enjoy absolute privilege that same privilege does not apply to you.
Mr. Carroll
I am participating on the same conditions as my colleagues enunciated earlier. To recap, the primary purpose of the Private Security Services Bill is to give effect to the principal recommendations of the consultative group report which was submitted in December 1997. The main proposal of that consultative group was the establishment of a private security authority to introduce, control and manage a comprehensive licensing system for the private security services industry. The Bill, which has passed Second Stage and is now referred to the select committee, provides for the establishment of that authority.
The Bill is set out in a number of parts. Part II is important in that it establishes provisions relating to the membership, functions, activities and powers of the proposed private security authority. Part III contains all the detailed provisions relating to the licensing system including issuing of identity cards and licences, of course. Part IV establishes a system for the investigation of complaints. Part V and the Second Schedule establishes a separate body, a private security appeal board, so that decisions of the authority can be appealed. The main functions of the authority as outlined in the Bill are to operate a licensing system, to establish standards for the private security industry, to investigate security services and to examine complaints against licensees, to undertake or promote research and to report to the Minister. The Bill does not seek to determine the qualifications required for licences, including training requirements or other standards to be observed in the provision of security services by licensees. The intention is that the training and other standards which are likely to vary from one category of licensee to another will be determined by the authority itself and would be given a statutory effect and regulations would be made by the authority under section 40. The categories of security service to be covered by the licensing requirements are set out under the definition of security service in section 2 in the Bill. Licences will be required by companies providing security services - referred to as private security employers - and also by persons providing a security service in the course of an employment or in the conduct of a business.
Conditions relating to the application process are set out in section 21. Applications must be accompanied by such references as to the applicant's character, financial position and competence as the authority may require. As regards the vetting of applicants, section 31 permits the authority to request the Garda Commissioner to provide any information requisite for the due performance of its functions.
In so far as the Oireachtas is involved, section 9 requires the authority to prepare a three year strategic plan for submission to the Minister for Justice, Equality and Law Reform for his or her approval. Following approval the Minister is required to lay a copy of the strategic plan before each House of the Oireachtas. The authority is required to submit an annual report to the Minister for Justice, Equality and Law Reform. These shall also be laid before each House.
Paragraph 5 of the First Schedule deals with the accountability of the chief executive of the authority to the Committee of Public Accounts. Paragraph 6 goes on to provide for accountability to other Oireachtas committees, including a committee appointed by either House or jointly by both. The chief executive shall attend at the invitation of such a committee and give account for the general administration of the authority, except where matters may be going before a court.
In introducing the Bill in the Dáil, the Minister for Justice, Equality and Law reform, Mr. McDowell, said he would listen carefully to the debate and would be interested in any suggestions and constructive criticisms from any source. There were, including the Minister's introduction and the response of the Minister of State, Deputy O'Dea, 30 contributions on Second Stage. That was a very thorough airing of issues arising from the content of the Bill.
Arising from those extensive discussions, a number of amendments are now under consideration. There was some lack of clarity regarding the authority's future role in establishing training standards and other standards in section 8 of the Bill, and this is now being examined.
The addition of provisions that would recognise the provision of security services in this State by persons holding valid licences from comparable supervisory authorities in other EU member states is also being examined. Specific examples were given. Perhaps people who were registered in the UK or licensed in Northern Ireland may work in the State. We will require some provision in the Bill to recognise that situation arising where people who are licensed elsewhere and under Community law have a right to provide such a service in Ireland.
The elaboration of procedures to be followed when the person providing a security service refuses to produce an identity card or licence to a garda for inspection or refuses to give a name and address for the purposes of producing it within a specified period at a Garda station is being examined. While we have detailed provisions regarding certain areas such as investigation of complaints, the Bill does not contain details of what procedure should be followed in the event of a person refusing to produce an identity card or a licence. We will have to make a detailed provision to cover that situation.
The making of provision for the authority to issue identity badges to certain categories of licensee to be worn when providing security services is also being examined. The Bill as proposed prohibits the wearing of badges. The point was made on Second Stage that in certain situations, such as security guards or door supervisors, where large numbers of people are seeking admission to a premises, it would be difficult or impossible to insist on production of an identity card without some identification on the part of the security provider. The idea of issuing badges for certain categories of licensee that would carry the licence number and would enable a member of the public to make a complaint against a licensee is being examined.
The issue of tax clearance was also raised on Second Stage. While the Bill as currently drafted makes provision for the financial standing of applicants for licenses, we are in contact with the Revenue Commissioners to develop a more detailed provision regarding tax clearance certificates. This would obviously apply to companies and to corporate entities, rather than people who would pay PAYE.
The Bill as proposed makes provision that all offences by applicants or licensees are to be communicated to the authority. This would include all minor offences as well as more serious convictions. It is being considered as to whether we should make provision for regulations, or at least the authority could make regulations, to waive the requirement to notify offences in the case of certain minor offences.
There were a number of points made during Second Stage regarding the definitions of the term private security service. We are looking to ensure that those definitions are as clear as possible, so the scope of the Bill will be widely understood and not create confusion.
These were all points made on Second Stage of the Bill. We are considering these currently and we are in contact with the Office of the Parliamentary Counsel with a view to developing amendments to respond to the issues that were raised.
It is time we got this legislation through the Oireachtas. It was introduced first in January 2001 and has taken more than two years to be processed. We are the last country in Europe to regulate this industry. We are well behind on the matter and it is an expanding industry. We know of the various issues that have arisen in the area of private security, in particular regarding public order offences. We have had a very comprehensive look at the legislation and the amendments reflect the areas that were raised during the Second Stage debate.
Regarding the identification of security personnel, some security work lends itself to uniforms, badges and external identification more than others. Are there categories that have external forms of identification and others where it is not be required? Will the amendment reflect that rather than providing a blanket requirement? There is a great advantage in having some form of external identification because the public is at a disadvantage regarding people in a dominant authority, such as bouncers outside a night-club or security in another area. If they do not have an immediate source of identification, it will be difficult to extract it. If it is a visual source it is much more beneficial. We should be as generous as possible in having immediate visual identification in any volatile situation.
Point 6 of the background notes on the vetting of applicants states the vetting of applicants "permits the authority to request the Garda Commissioner to provide any information requisite". A person applying for a taxi licence will have to go to the carriage office. The Garda has a major role in that area. The security firms are certainly dealing with matters of considerable security importance. They deal with money and personnel. It would seem Garda clearance should be obligatory and certainly that the applicants for a licence would have to satisfy themselves that the Garda had checked out their backgrounds. The witnesses say they are considering that, but it is in the category of "it may or may not happen". It will not be obligatory. Does it need to be beefed up more towards an obligatory requirement, with the name run past the Garda to see whether a person making an application is bona fide, especially if money is involved, or there are other sensitive areas in human contact?
The question of payment came up frequently. Many people are paid under the counter and many are paid less than the minimum wage. I presume the minimum wage should apply automatically. It certainly does not apply currently, going by some of the information supplied to committee members, because some companies are not registered and many of them seem to operate in the black market. A black market operation figure of 20% was given to us, and a figure of €40 million or €50 million being lost in terms of unpaid PAYE and PRSI. Those estimates were very conservative. That area may require specific legislation to the effect that the minimum wage should be mandatory, as it is by law, but with particular reference to this area.
The use of CCTV was raised. One of the functions of the authority would perhaps be to have CCTV as part and parcel of the procedures required in certain categories of security. I would welcome that, because it would be a very useful independent forum of identification. Is there any way we can control the cowboy companies, the fly-by-nights that come along and then disappear and set up in a different format?
Thank you. On the recognition of licences from the UK and Northern Ireland, does the idea of reciprocity come into play there? If we are to recognise their licences, will they recognise ours? I am sure some of these points are coming to you like a second stage speech, and Deputy Costello is certainly on top of the whole thing. There are a number of items there.
Mr. Carroll
I will respond as best I can to all those points. On the timing of the legislation, it is unfortunately true that the Bill was tabled two years ago and lapsed on the dissolution of the last Dáil, but it has been restored to the Order Paper and was dealt with in the autumn. All the issues were thoroughly aired and we are now working on them, as I explained earlier. While it is true we are coming later to this than are other EU member states, this legislation when it is in place will be possibly the most comprehensive legislation of any member state, because of the range of activities being covered. The legislation in some of the other countries is confined to security guards and door supervisors, but we have gone for a much broader range of measures, as has the UK.
On the identification of licensees, what we are providing for is that the authority itself shall decide which category of licensee should wear identification. Clearly one has to be careful in this area because it may at times put the health and safety of security personnel at risk, if they are identified. Some security which is being provided requires anonymity balance has to be struck between identifying those against whom people might have complaints and more discreet security where the identification of the operatives would jeopardise the entire operation. One has to recognise both aspects.
What we are providing for, or at least considering, by means of an amendment, is that the authority itself shall decide what category of licensee shall wear external identification, for instance, security guards and door supervisors - those categories where people have a great deal of contact. If somebody is coming to install an alarm or a safe, or if a private investigator is carrying out an assignment, the case for having identification in those categories is perhaps less compelling than in the case of door supervisors and security guards. It will be left to the discretion of the authority itself, within the framework of the amendment, to decide what category of security worker must wear external identification for the purpose of a customer or member of the public to be able to identify the person, in order to make a complaint for example.
On obligatory vetting, I would expect the authority to vet all applicants. The reason that has not been made compulsory, I suppose, is that certain categories such as locksmiths and suppliers of safes, and people who are actually employers, may not need to be vetted. It was felt that it should be left optional, for the authority to decide. There would be a wide expectation that the authority at the outset would have a fairly thorough vetting of all applicants for licences.
On the area of payment, the private security industry will remain subject to health and safety legislation, to employment law and to the minimum wage legislation. As for pay and conditions, a security industry joint labour committee has been already established and is active under the auspices of the Labour Court. This was established in 1998 and two employment regulation orders have been already made setting out pay and conditions. The most recent of those took effect on 1 March, 2001 as far as we are aware. It is not the intention that the authority will set pay and conditions, as there is already a procedure in place for doing that, but it will set out additional standards on the training of applicants for licences and establish standards to be observed in the provision of security services, for instance, the kinds of standards that the National Standards Authority of Ireland has already developed in the installation of alarms.
Suppliers and installers of security equipment including CCTV will require a licence in the future. On imposing a requirement that CCTV be installed, the difficulty is that we are not licensing premises under this proposal, but rather we are licensing people. That creates a certain difficulty in imposing a statutory requirement to have CCTV. In a separate public order proposal which is before the Oireachtas, provision is made for the possibility of the district court imposing an obligation for CCTV. This is in relation to licensed premises as defined in that proposal.
Deputy McGrath
That is a better way of doing it because if the licence is attached to the security company and I have an hotel and I employ a company to supply me with bouncers, I would have to have the CCTV if it was included in this legislation. However, if I employ them directly I would not be so obliged. It should be attached to the annual licensing of the hotel, night-club or chipper.
Mr. Carroll
That is the thrust of the Criminal Justice (Public Order) Bill 2002, which deals with licensed premises. Under the Bill, "licensed premises" has a wider definition than under licensing law. It covers food outlets such as mobile take-aways.
Will licences and exemptions for night-clubs come up individually, and who will bring to the district court's attention that it should perhaps impose CCTV? It deals with each renewal as it comes forward, of which there is a plethora. We have 14,000 licensed premises in the country. Unless there is some regulatory framework, which we do not have, it is wishful thinking to say it will happen in the format that you suggest.
Mr. Carroll
The difficulty is that there is quite a large number of small licensed premises around the country where CCTV would hardly be required. Obviously, where there are larger numbers of people in licensed premises or in the case of a night-club or hotel, where there are much larger numbers, CCTV would be useful. Many of those outlets or licensed premises already have CCTV and see the advantage. The Criminal Justice (Public Order) Bill 2002 makes provision for barring orders and closure orders, and in the context of a closure order a District Court may attach a requirement that CCTV be installed to ensure public disorder does not occur. The CCTV requirement is part of the Criminal Justice (Public Order) Bill 2002 rather than of liquor licensing law.
Is it only to be required when there is a closure order?
The horse will have bolted from the stable at that stage.
It should not become a requirement that they provide a certificate when they are applying for renewal of their licences. I can see the point that smaller premises might not need it, but there should be a category of premises that must provide a certificate to the district court saying that it has satisfied the requirements and complies with them. I see that as a very positive step in the right direction. Accompanying that, there should be regulations laying down who can inspect the premises and how long the licensee must keep tapes. It will be a major step.
Mr. Carroll said that would be for premises rather than for people. It is a very important item, or it could be in the future.
Mr. Carroll
That is why it is not part of this proposal. One of the purposes of tax clearance certification relates to companies and the phoenix-like reappearances of people from companies that have disappeared. It is the directors of companies who would be vetted. Where tax clearance applies, it should be possible to detect companies that have gone into liquidation and then appeared under another name or in another guise.
The necessity for tax clearance would also reduce the number of companies making under the counter payments.
Mr. Carroll
That would bring matters into line with licensing law and certain other areas.
Is that what happens? If one applies for a tax clearance certificate, will the Revenue Commissioners not simply issue one on the basis that one's taxes are in order? What sort of check will they carry out to see whether there is a link with another company that existed, perhaps with other directors, of which the applicant was the beneficiary and owner? Tax clearance certificates are by no means a complex or effective mechanism to ensure there is not a plethora of companies springing up and rising phoenix-like from their own ashes.
Perhaps I might reply to that. Frank Daly, the chairman of the Revenue Commissioners, was recently before the Committee of Public Accounts. It has been a problem that one company would get a tax clearance certificate, and, when it went kaput, another company with the same directors, or perhaps with one change, would arise phoenix like. There is now a system in place in the Revenue Commissioners to highlight that.
Therefore, a tax clearance certificate means something now. It certainly did not mean very much in the past.
Mr. Carroll
We are in contact with the Revenue Commissioners, and we will accept whatever provision they ask us to insert into the legislation.
Your final point, Chairman, referred to reciprocity. Clearly, under EU law there is a right of establishment and a right to provide services and that applies in all member states. We are anxious that if someone is providing a security service and produces a licence or identity card, the authorities are empowered to check its validity with the issuing authority. A safeguard of that nature is necessary, and we hope to make provision for that too.
That is often built up between the authorities established in the various countries.
Mr. Carroll
As the Minister of State indicated in his response on Second Stage, there has been some activity at EU level to develop contact points in the different member states for exactly that purpose. It will ensure that people purporting to have a licence or identity card from a supervisory authority in another member state can be checked with the issuing authority.
Mr. Carroll and Ms Harrington, thank you very much for attending the meeting. I am sure it was later than usual for you. The discussion has been very useful and open and we very much appreciate it.
The joint committee went into private session at 7.10 p.m. and adjourned at 7.20 p.m. sine die.