Vol. 113 No. 16
Before we begin Committee Stage I want to bring to the notice of the House that amendments Nos. 1 to 7 inclusive, and Nos. 10 and 11 have been ruled out of order on grounds of involving a potential charge upon revenue. I have notified all the Senators concerned.
SECTION 1.
Will the Minister define what is meant by other organisations? For example, if a football team or a rugby team coming from a match call into an hotel and it is vandalised, is that covered under section 1? Does it mean other organisations or all organisations? I would like that clarified. I am not clear on it.
It is unlawful organisations which would be organisations such as the IRA or the INLA.
The explanatory memorandum says: "...damage caused by riot and by the activities of unlawful organisations and certain other organisations as referred to in paragraph 4 below. Paragraph 4 does not spell out exactly what type of organisations. Is the Minister saying that football organisations and organisations of that nature will not be covered by the Bill under section 1?
This point does not arise on section 1. We are referring to organisations from outside the State. Section 2 (1) (a) (iii) provides that damage caused as a result of an act committed maliciously by a person acting on behalf of or in connection with an organisation outside the State that engages in, promotes, encourages or advocates the use of violence for purposes related to the conduct or administration of the affairs of the State or Northern Ireland will come within the scope of the revised scheme.
On section 2, I got your note, a Chathaoirligh, that amendments Nos. 1 to 7 are out of order on the grounds which you have described and therefore I am not in a position to move them. I understand that I can comment on them. The purpose in putting down this set of amendments is to draw attention to the implications of the Bill for specific categories. In that context I would like the Minister to consider introducing amendments to meet the needs of these special categories on which I will elaborate on Report Stage. The basic problem is a breakdown in law and order which has led to vandalism, arson, burglaries and so on. In the Second Stage debate the Minister acknowledged that there is a serious problem of vandalism and related problems in relation to educational establishments, particularly schools. The intention behind the amendments is that schools should continue to enjoy compensation entitlement in accordance with the Malicious Injuries Acts. There is no question but that schools have come under severe attacks from vandals and thieves especially in crime prone urban areas in Dublin, Limerick and Cork.
It is predicted by the insurance industry that insurance premiums in the major urban areas will increase by 45 per cent for primary schools and by 30 per cent for post primary schools. This additional premium cost will be on top of a very severe increase in insurance premiums in the Dublin area. Since 1982 insurance premiums for schools have been loaded by up to 100 per cent already. In the case of primary schools there will be a further 45 per cent increase on top of this.
In relation to the next amendment and the impact of this Bill on recreational or sporting facilities, again the basic problem is crime. Malicious injuries claims arise because of vandalism, arson and burglaries. One of the most effective ways of countering crime, which is the kernal of the problem, is to provide sporting and recreational facilities for our young people. I have listed a small number of organisations that are affected: the GAA, the Football Association of Ireland, the Irish Rugby Football Union and the Golfing Union of Ireland. A host of other sporting and recreational organisations provide invaluable physical activity for young people to keep them occupied in useful activities of that kind. These voluntary and sporting organisations are providing an invaluable service to the community through the provisions of these facilities. Not alone do they keep people out of trouble by providing the opportunity for physical activity, but these activities in turn lead to an approach to discipline and they generate a community spirit.
I would ask the Minister to consider for Report Stage an amendment giving exemption to recreational and sporting facilities from the provisions of the Bill. These organisations are making a valuable contribution to community life. Sport and recreation provide an important antidote to crime and are a valuable source for countering crime. They are conducted by people who give voluntarily of their services. They make a contribution to tackling the crime problem which is the kernal of the malicious injuries problem.
The third amendment relates to the consequences of the breakdown in law and order for religious, charitable or voluntary services. Community centres and churches, for example, have been subjected to vandalism and arson. It is estimated in the case of churches and community centres that, following this Bill, insurance premiums will rise by at least 12½ per cent in urban areas. The breakdown in law and order is such that some churches have to be locked up completely in the day time to protect their property. Community centres are under severe pressure because insurance costs are already so high on these voluntary groups. My information is that the insurance on an average community centre amounts to £2,000 per annum. This is a very substantial imposition. It is now envisaged in urban areas that there will be a 12½ per cent increase on that. The people who run community centres do so voluntarily by giving generously of their spare time. They are making a valuable contribution to society by acting as an antidote to crime which is the key problem. Surely these centres deserve special consideration and therefore should be entitled to compensation under this law.
I referred on Second Stage to another vulnerable area, cars and motor cycles. The insurance industry have predicted that following the implementation of the Bill, a 5 per cent increase will be imposed on those with comprehensive cover with higher premiums for those with third party cover. An undesirable by-product of this is that high premiums already are contributing to the severe uninsured driving problem — it is estimated that 20 per cent of those driving vehicles are uninsured. Further additional premium increase will put insurance further out of reach.
Talking about people being able to afford to run vehicles, the Irish motorist is the most highly taxed in Europe, and considering that already he makes a considerable contribution to the Exchequer he should not have to bear the additional increase in cover in respect of damage and theft of cars. Because of the current scale of crime there is a special case for exempting cars and motor cycles from the provisions of the Bill.
Amendment No. 5 refers to the impact of the removal of protection for malicious injuries from the farming community. Farmers are good at making their case and have been through the decades, but they are under considerable pressure on a variety of fronts — weather, prices and so on. I based my amendment on the case farmers have to make. Protection of farmers under the 1981 Act is being removed and considering farmers' difficulties, they deserve special consideration.
I will turn to amendment No. 7, relating specifically to local authorities who are being put in an anomalous and unfair position in regard to malicious injury claims. They should be entitled to seek compensation like everybody else for malicious acts by illegal organisations. For instance, the ESB and Telecom Éireann can continue to claim in the case of riots or acts by illegal organisations, when their properties are damaged. This is not so in the case of local authorities. Those in Border counties in particular are very vulnerable. A case in point is the burning of Monaghan Courthouse. The Department of Justice contributed to the cost of restoring the building, but the balance of the bill was carried by the county council. Local authorities are unable to claim when their properties are damaged. Courthouses and town halls could be damaged during peaceful protests which end up in riots. Unfortunately, this is not a remote possibility any more. For example, the recent skirmishes during the Orange marches in Rossnowlagh in Donegal are a case in point; it could have spilled over and caused damage to public property. The burning of the British Embassy some years ago in Dublin is another case. Council property, being a symbol of order and authority in the community, could be targets for riots or malicious acts by illegal organisations. Therefore council property should be covered like that of State-sponsored bodies.
I support Senator Hillery. I do not want to be parrot-like, so I will merely point out that in the Bill we are transferring liability from local authorities to property owners and, in turn, to insurance companies. Last year we paid out £20 million and of that £12.5 million was paid out in Dublin. It is only reasonable to expect that, if insurance companies have to carry the £20 million in addition to the ever-increasing amount that will be in the pipeline this year, insurance policies will go up by the percentages given by Senator Hillery. These projections seem to be accurate, so when sums like £20 million are to be paid out by insurance companies there will be continuing increases in insurance premiums. Worse still, when claims begin to come in it will be very hard for people to get cover as is the case now in regard to motor vehicles, especially those driven by young motorists.
Have the Department been thinking of pegging insurance premiums in future so that there will be assurance given to injured parties that in the next five years insurance cover will rise by only a given percentage? At the moment we have a dangerous, open-ended position whereby insurance increases are being governed by claims. Damage to property in the future against which there will be either intolerable premiums or no insurance cover at all will mean that people will be put out of business. The same applies to schools and the other possible victims referred to by Senator Hillery. I should like to hear an assurance from the Minister that the entire insurance industry will be examined so that some legislation might be introduced for control, because the transfer of liability proposed by the Bill will cause massive hardship to property owners.
It appears to me that the amendments which have been ruled out of order make up the main thrust of what Senators Hillery and O'Toole said. The amendments would stand this Bill on its head. On Second Stage we accepted that this Bill proposes to abolish malicious injury liability but we do not want the Bill to apply to interest groups of one kind or another. There is no reason why the GAA or the IRFU should be regarded as being more meritorious than hundreds of other groups, social, political or commercial. That kind of genuflection to the chalky gods of Irish society by Senator Hillery does not impress me at all. It is a genuflection to chalky gods. You set up the Gaelic Athletic Association and the Football Association of Ireland to show that you are not in favour of the ban. You put all these worthy organisations in together. Then, you throw religion in as well, because, of course, in Ireland you must have religion in everything. Then, you have to think of the farmers. So, you throw the farmers in as well. Then, as an awful lot of fellows have motor cars, you throw motor cars in as well along with motorbikes and all mechanically propelled vehicles. The real area of difficulty is left untouched. Senator Hillery knows what the real area of difficulty is. The real and only area of difficulty and the only argument in favour of retaining any section of it is in areas of the inner city where getting insurance would be difficult at any price.
I will be putting down an amendment on that.
To solve that problem — and he recognises it is a problem — he throws another amendment in which says that, where a court thinks that you could not get insurance or that insurance would be too expensive, that would be covered as well. That is nonsense. Who would not fall within some or other of those definitions? Anybody could then say that it would have been uninsurable because it would cost too much or his means were not sufficient to be able to afford the insurance premium. That is not reasonable. Section 2 strikes what I consider to be an appropriate balance. I am not concerned about the Gaelic Athletic Association or the religious organisations. They can look after themselves. They can well afford to insure if they have to insure. The only case I heard against the abolition of the malicious injuries code is in respect of certain areas of the inner city where getting insurance at all is going to be difficult. That is a fair point and I would like to bring it to the Minister's attention. I know that is one of the things behind the other amendment of Senator Hillery. I agree with the purpose behind the amendment. However, it cannot be drafted so widely that anyone who goes into court and says that the cost of insurance will be too high, and who is able to persuade a local judge that that is the situation, he or she is automatically entitled to cover under the malicious injuries code. That kind of law would lead to a situation where there would be tremendous uncertainty in each and every case as to who would or would not be entitled to malicious injuries compensation. That kind of uncertainty is not acceptable.
Section 2 properly seeks to amend section 5 of the Principal Act and I support it. I would like the Minister to explain subsection (2), which seeks to define "maliciously" a little bit differently than heretofore. Would the Minister like to explain how subsection 2, paragraphs (a), (b) and (c) change the present definition of "malicious" in the malicious injuries code to date?
I wish to be associated with the comments of Senators Hillery and O'Toole. My main comment will be in some way to refute the point made by the Minister on Second Stage that the cost of insurance for the average citizen is unlikely to be noticeably affected, whether in respect of house or motor insurance. I would make this point. At present there is a Courts Bill, in regard to the trial by jury system, going through the Dáil which, the Government hope will reduce the liability in respect of motor insurance premiums. It can be positively said that this Bill will increase the insurance bill for every single person who has an insurance policy whether it be a simple fire policy, a household or car insurance policy, employer's or public liability insurance.
The Irish Insurance Federation will clearly state that across the board at present they would reckon on a 10 per cent to 12 per cent increase in premiums. Obviously, in some areas such as schools and community halls premiums will increase much higher than that figure. Senator O'Leary referred to the problems of inner city insurance, which we all know to be not just expensive but difficult to get at present. Certainly, it will be much higher there than the figures I have mentioned. Generally, it can be said without any shadow of doubt that the insurance premiums of the public will increase by 12 per cent or thereabouts. They can rise in the future as a result of this legislation. That is understandable because within every insurance policy there is a subrogation clause.
I will give an example. I had, unfortunately, a claim under my "plate glass" policy, a compact business type policy. Seven or eight windows in the area were broken by vandals and I lodged a claim with my insurance company. I indicated that because I was chairman of the Urban District Council I was reluctant to put forward a malicious injuries claim but the company, without even telling me as was their right under their policy, put forward a claim and received some money back as a result. In other words, it cut their losses. While that subrogation policy is there insurance companies will do it as is their right. Therefore, it is reasonable to assume that, if that avenue for extra finance as a result of a claim is no longer to be there for them, premiums will increase as a result. It is as well to put on the record, straight and fair, that insurance premiums will escalate as a result of this legislation. As I said, the figures suggest that across the board it could be as high as 12 per cent.
I wish to refer to the amendment which Senator Hillery has put down. Quite honestly, I was not aware that it was put down. Senator Mullooly and I have put down a similar amendment on section 6. The amendment relates to the problem the local authorities now find themselves in, an apparent anomalous situation which is totally wrong and unfair to the local authorities. At present the position is that, while the various Departments of State, Bord Telecom, ESB, CIE and so on have the right to claim in the event of a riot situation, a local authority cannot claim for damage to their own property under this Bill. That is most unfair. Indeed, I have no doubt we are going to have a situation in the future where in a public play area — for example, the Phoenix Park — a riot might develop. It would be most unfair if the local authority could not seek compensation from the State in the event of a riot taking place or in the event of a local authority building being burnt down. An obvious example, as Senator Hillery said, would be a courthouse, which might be more of a target than anything else. It happened in Monaghan. If a courthouse were to be damaged by an unlawful group or damaged as a result of a riot, it seems unfair that the local authority cannot recoup the money for the repair of that building in the same way as all of the other bodies I have mentioned. The Minister must examine this. The Minister will probably say that the local authority cannot sue themselves, but in most cases surely it will not be a case of proceeding that far, that settlements occur much earlier. I am wondering in that situation what the position is. Can the Minister say that under some ministerial directive or signature the local authorities can claim from central funds? It is very unfair and the local authorities will find it very difficult for the future. They might have to endeavour to get some form of riot insurance. That in itself might be difficult and certainly if it is available it will be quite expensive. To eliminate this, the local authority should be put on an equal level with the other semi-State bodies who have the right to claim from the central Exchequer through the local authority and recoup whatever compensation is required. I hope the Minister can make a statement on that, or perhaps introduce an amendment on Report Stage.
As a member of a local authority, I want to express reservations about some of the comments Senator Fallon has made. I respect his view and he is an expert in the insurance field. Section 2 is just about rightly balanced. Every year at the rates estimates meeting, we had a heading for malicious injuries, against which the county council could not indemnify themselves by way of paying an insurance premium. They just had a heading and by law they had to meet it. There was an extraordinary case in north Tipperary where there was a malicious injury claim against the council that they were unable to meet. Certain regulations had to be brought in putting a ceiling on the amount for which local authorities were responsible. There is the anomaly that the local authorities are unable to contest a malicious injuries claim if it is proven; they could contest it but they would lose it. They could not indemnify themselves against it with an ordinary insurance policy, but they can insure their own premises, in the same way as anybody else and have their own insurance policies for any accident which might occur with them or any negligence by the county council in the working of their enterprise. That is legitimate.
So can Bord Telecom.
What is being suggested is that the principle of collective responsibility should apply. There are very few people left as ratepayers now, except a few shopkeepers in towns. They are now collectively responsible, it is being suggested, for all the malicious injuries which will take place within their area of jurisdiction. It is being suggested that we should not change the law in this regard. Most of the money paid in malicious injuries comes back as a charge on the rates and a charge on the State. I have heard managers saying in response to criticism from members each year that this is an area in which they have no jurisdiction. They have their obligations to meet claims under the Malicious Injuries Act. They had to contest it, but many claims have been successful. Senator Fallon's example is a typical one. He did not want, as chairman of the council, to make a claim on his own council, but his insurance company did.
As was their right.
And who paid for it? It was paid for on the basis of collective responsibility. This is an insurance problem. People should be insured correctly and the insurance business should meet the claims. It is inevitable that it will create an increase in premiums since there will be an increase in claims. Who should be paying? Is it the person who needs insurance, the insurance company or the public at large, who have no responsibility directly or indirectly in creating the situation which caused the claim? It is a moot point, but there is somebody down the road, the PAYE payer, the ratepayer and all these other people who put money into the common coffers. The insurance companies can make claims on that fund. It is an unusual system of accountability. I would have reservations about not proceeding to change that law. It is about time we did. I am only speaking as a member of a local authority, with the experience which I have had, and not as a person who has ever had to make a claim under this heading.
I simply made the point that despite what the Minister said in the Second Stage speech, insurance premiums clearly and positively will increase. That has been established. That was my big point. My second major point was that in regard to recoupment the local authorities should be put on the same level as semi-State bodies and similiar groups. I do not think there is anything wrong with those two firm, strong points.
Before replying to the points raised, I would like to remind Senators that in the Second Stage speech notice was given that no amendments could be supported which would actually involve expenditure because this is an Exchequer saving Bill.
Senator Hillery is seeking to retain the existing malicious injuries scheme in the case of damage to schools, recreational facilities, churches, property of charitable and voluntary organisations, cars, motor cycles and bicycles, hay barns and in the case of damage to any property where a court is satisfied that it would be reasonable to expect the applicant to have it insured. This would involve considerable cost. While we are aware that schools in certain areas face particular problems — the centre city in Dublin was referred to with regard to vandalism — this does not justify maintaining the existing scheme for educational institutions. The Department of Education are working closely with those schools to improve security by such measures as the installation of burglar alarms, improved fencing and unbreakable glass. Grants are available for these measures in primary schools, and in certain circumstances in post primary schools. In the case of primary schools the per capita grant of £24 from the Department of Education, together with the local contribution of £6, is intended to cover operating costs including insurance premiums.
Similarly the effect of the Bill overall in the case of recreational and sporting facilities and on religious, charitable and volunatary organisation will not be great. The question of making special provision for agriculture property was referred to. There is no particular problem in obtaining insurance cover for agricultural property. In addition agrarian disputes which might involve malicious damage are no longer a common feature.
Senators Fallon and Hillery spoke about malicious damage to local authority property. Local authorities have never been in a position to claim compensation in respect of malicious damage to their own properties. This is because the malicious injuries scheme is based on recovery of malicious damage compensation from local authorities. Local authorities cannot sue themselves. The difficulty in dealing with this matter in the Bill is that the existing scheme is not appropriate for the reasons I have mentioned. A separate mechanism is required to deal with local authority claims. Since what essentially is at issue here is how the cost of repairing damage to local authority property should be met, the Minister for Justice has been in communication with the Ministers for Finance and the Environment on this question. While it has been decided that this Bill is not the appropriate place to deal with this matter, the whole question is being considered further by the Ministers for Finance and the Environment at present.
The question of difficulty with insurance was raised by Senators O'Toole, Hillery and O'Leary. Speakers have drawn attention to the problems which may arise if insurance companies refuse to give malicious damage cover, particularly to commercial concerns in what are regarded as high risk areas. In my introductory remarks on the Second Stage I said that the Minister for Justice had taken up this matter with the Minister for Industry and Commerce to see if anything could be done to deal with any possible vacuum which might result from the passing of this Bill. I believe there will not be any great change or great problems in the rest of the country, but it is recognised there may be a problem in Dublin city centre.
The Minister of State at the Department of Industry and Commerce, who has responsibility in the insurance area, is having the matter taken up with the insurance industry to see if any practical ways can be found to alleviate any problems that may arise.
Finally, the definition of "malicious" is different in this Bill from the 1981 Act, which was queried by Senator O'Leary. Subsection (2), following the definition of the 1981 Act, provides that: the act shall be taken to be committed maliciously for the purpose of subsection (1) (a), (2) and (3) if it is damage caused by certain organisations; if it is a wrongful act committed intentionally without just cause or excuse; if it is committed wantonly; or committed in the course of, whether or not for the purpose of, the commission of a crime against the property damaged. The definition is basically the same as that in section 5 (2) of the 1981 Act, the only difference being that in the 1981 Act, section 5 (2) (c) makes provision for riot damage. As damage caused by riot is being specifically provided for in the new subsection, there is no need to include it in the definition here. It is just a very small point. The 1981 Act defined "malicious" as including riot, but it is being taken separately in this legislation.
The Minister has said that this question of the local authorities and the problems dealing with riot claims and so on cannot be dealt with in this Bill but that it is being actively pursued by the Minister for the Environment and the Minister for Finance. May we assume that some statement will be issued on that matter in the near future?
The Minister has said that a statement will be issued from the Department of Industry and Commerce, the Department of the Environment or the Department of Finance but two insurance companies with considerable association with local authorities are not aware of that. At present if an ordinary property owner has his property damaged he can claim from the local authority, but under this Bill a property owner must prove that the damage was caused by a riot or by an unlawful organisation. If he can do so, he can claim compensation from the said local authority. Under this Bill the local authority can recoup from the Minister for the Environment all that has been paid out in compensation. However, if the property of the local authority — and this has been said — is damaged by a riot they cannot sue themselves; therefore they cannot get compensation and therefore they cannot recoup the loss from the Minister.
My concern here is that local authorities themselves cannot recover compensation for malicious damage to their property. Local authority property is particularly vulnerable to concerted attack from riot or unlawful organisations. This is a serious problem for local authorities. In the Minister's reply she has stated that this has been taken in hand and that the Minister for Industry and Commerce and other Ministers are going to deal with it; but one senior insurance company and a second insurance company who have a lot of dealings with local government and local authorities are not aware that that is so. The body I am talking about had discussions with members of the Minister's Department or some Minister's Department and they did not come away with the idea that local authorities in future would be able to compensate themselves. There is a gap here.
As for passing the buck to another Bill on another day, I have seen so much of this recently in legislation that it worries me intensely and Senators who have close associations with local government and local authorities are deeply concerned about this matter. Senator O'Toole has a long record in local government, as have Senators Ferris and Fallon. I would like to hear the Minister's statement again because I do not think that the bodies I have talked to consider the case to be as the Minister has indicated. There is a deep worry there for local authorities and for insurance companies associated with the local authorities about damage done to their property.
Perhaps this is an appropriate time for me to come in before the Minister replies. In addressing amendments Nos. 1 to 7, I went to some length to highlight the implications of this Bill for a variety of categories, including local authorities, which have been subsequently referred to. There is no doubt that in the case of schools and community centres the increased insurance premiums will create severe hardship for these groups and they are deserving of special attention.
I know that I have not got any distance, given the Minister's reply, but I want to follow it up by saying that if the level of crime, vandalism, arson and so on were very considerably lower I would not be making these points with the same strength. It is precisely because the level of crime is still very high and that schools and community centres in particular continue to be particularly vulnerable. That vulnerability, in return, is reflected in increased premiums. It is in that context that I re-emphasise the vulnerability of certain groups following the implementation of this Bill.
The basic problem is law and order and the scale of crime. That scale of crime in turn is reflected in damage and injury to a variety of categories. I think it is entirely inappropriate to remove the protection of the Malicious Injuries Acts at this juncture when the scale of crime is still so high. Again, I want to make the point in the case of community centres that they contribute to addressing the crime problem by providing an antidote for criminal behaviour. That should be recognised in turn in relation to the imposition that is now being placed on them through increased premiums under this Bill.
In relation to local authorities and the clarification of that situation — the Minister mentioned specifically the Department of Finance and Environment — I am glad the problem is being addressed. I know that functionally she can say that it does not come up properly under this Bill. To be honest, it is very frustrating for us contributing to various debates here to hear a Minister with particular functions saying that certain matters are not quite his responsibility but that he will draw them to the attention of another Department.
Only yesterday, in the context of the Harbours Bill, the Minister of State at the Department of Communications was making the point that the issue in relation to the extension of the worker participation legislation to harbours is really a matter for the Minister for Labour. I would make a plea for greater co-ordination among Departments, who are serving in the same Government, to come in with the most up-to-date information and with conclusions when introducing Bills here. While the Minister has a case, on a functional basis, to say that it is not his responsibility, we are getting tired of being fobbed off in that manner. A Government should be a cohesive group and should come in with a co-ordinated position on a variety of Bills. It is not peculiar to the Department of Justice; it is going on all the time. Needless to say, exclusion is a very important issue for the local authorities. They are discriminated against because they are excluded, unlike the ESB and Bord Telecom, from redress in the case of malicious damage. Furthermore, local authority property represents the established order and authority. Such public buildings under local authorities are tempting targets for subversive organisations and for riotous behaviour. Local authorities have a strong genuine case for equal treatment, like other organisations.
In reply to the final point on which most of the discussion centred, which is damage to local authority property, I should like to assure all Senators that it is not a question of their being fobbed off. In many instances in debates, particularly on Committee Stage, queries arise about issues or sections of a Bill which do not constitute the actual functional area of the Minister or of his Department. Far from their being ignored, they are noted. This point came up in debate at all Stages in the Dáil. I realise that there is concern about damage to local authority property. I should say that there are not that many instances on record. While accepting the point that they could appear to be vulnerable sites or buildings in the context of subversive organisations, there have not been that many instances of damage done. Nonetheless, it is not appropriate to deal with that area in this Bill.
Senator Honan inquired about the discussions or negotiations which were taking place. It would be unlikely that the companies concerned would know at this point what was going on. Certainly, because of the debate, the concern expressed and the clear awareness that there is a need to regularise the position, it is a matter which the Minister for the Environment is discussing and attempting to come to an arrangement with the Minister for Finance. It does not have to come into the House as legislation. It can be dealt with in another way. I assure Senators that the remarks, just as those in the other House, will be noted.
Amendments Nos. 8 and 9 may be discussed together.
I move amendment No. 8:
In page 3, before section 3, to insert the following new section:
"3.—(a) There shall stand established a fund to be known as the Criminal Injuries Compensation Fund.
(b) The fund shall comprise monies contributed in such sums as shall be agreed between the Minister and any interested business or commercial parties.
(b) The Minister may by regulations provide for the payment of awards from the fund to interested businesses or commercial parties who would not otherwise be entitled to compensation under the Malicious Injuries Acts 1981 and 1986.".
With regard to the essence of what we have in mind here, this amendment is intended to highlight the insurance problems facing businesses particularly in inner city areas. Despite Senator O'Leary's criticisms of the valid cases I believe I was making in relation to various categories, he did say that in his view the core problem related to businesses and their vulnerability to crime in crime-torn inner city areas. This problem of insurance for high risk businesses is addressed in the Fifth Report of the all-party Joint Committee on Small Businesses on the insurance problems of small businesses. In their recommendations under the heading of "Business Security" the committee had this to say at paragraph 2.9.1, under the further heading of "Malicious Damages Fund":
We feel that the burden of Property insurance in high risk areas should be shared by the community as a whole, in conjunction with the insurance companies, with the ultimate objective of ensuring that business continues in these areas.
We see that the right of businesses to Property insurance in these high risk areas as being just as important for urban renewal as the existing high levels of Local Authority expenditure on new housing in many of these areas and the urban renewal incentives announced by the Government on 23 October, 1985.
That committee is chaired by Deputy Ivan Yates of the Minister's party and the Vice-Chairman is our Seanad colleague, Senator Michael Lynch. That was their firm recommendation in relation to the insurance for businesses in strike-prone city areas. Given the gravity of the insurance problem facing businesses in these high risk areas, some alternative to the abolition of their cover for malicious injury resulting from the provisions of this Bill is necessary. The joint committee acknowledge it, Senator O'Leary acknowledges it. It is in that spirit that amendments Nos. 8 and 9 — No. 9 being consequential on No. 8 — are now put down for consideration today and have been allowed by the Chair.
The Motor Insurers' Bureau — I know this was referred to in the other House when the Bill was being debated there — though not a direct parallel to what we have in mind here, has a valuable administrative arrangement in claims where no motor insurance exists. The bureau provides an important service. Therefore, is it not possible to have a criminal injuries compensation fund, or something of that type, to meet what will be a particularly acute problem for businesses if the Bill is implemented as it stands? Will the Minister consider that talks between the Government, businesses and the insurance industry need to be initiated and advanced rapidly with a view to the establishment of such a fund. I know the Minister made some reference to talks. I would like her to elaborate on that in her reply.
Despite the best efforts of the Garda, the resources being applied to the special problems areas in Dublin, Cork and Limerick, in which many businesses are located, are not enough to provide the kind of protection that is necessary. In other words, despite the best efforts of the Garda to reduce significantly the problem in these inner city areas in relation to business, the results are still extremely worrying. On the insurance side, some of these businesses cannot get insurance cover and, where they can, the premiums are so exorbitant that they are beyond their reach. Businesses are suffering as a result of the breakdown in law and order. The Minister must continue to take action to remedy the situation. It is in that context, namely, the inadequacy of the Garda, despite their best efforts, to meet the crime-torn problem and its impact on the businesses in those areas, that we have put down this amendment. We would ask the Minister to seriously consider an amendment along these lines on Report Stage.
I should like to support this amendment. This is a very difficult problem, one which exists in a few areas only. In these areas it is very serious. It cannot be dealt with adequately with present resources. As Senator Hillery has said, some of these premises are uninsurable or, if they are insurable, the premiums sought are so high that the businessman or concern simply could not pay them. It is simply going to be impossible for certain businesses to carry on in these areas unless the Government do something to help them. Our proposals here constitute one way in which this could be helped. There does not seem to me to be any other way in which it could be dealt with except by some kind of Government contribution. The Government are not being asked to carry this by themselves. It would be a joint effort. It is a fair and reasonable way to meet a situation which cannot otherwise be dealt with. I ask the Minister to consider this amendment or to consider a similar amendment which would achieve the same purpose.
Like other speakers I support the concept of this amendment. Senator Hillery and Senator Ryan said the problem applied to the principal cities. This does not apply only to the inner city of Dublin or areas of Cork or Limerick. My experience has been that in certain parts of Athlone insurance companies are saying to householders with comprehensive household policies that they must use padlocks and install all kinds of locks on the doors before they can get insurance cover. Houses must be as well protected as Fort Knox before insurance cover can be got. On top of that, these householders have to pay hefty premiums, far above the normal. While this is a problem in areas like Dublin, Limerick and Cork, unfortunately it is a problem which will spread to the other parts of the country in the future. Therefore, it is opportune that this amendment should be discussed at this time and hopefully the Minister's reply will help solve this problem and she will agree with this amendment.
I must oppose this amendment. As there is no question of there being any State subvention available for such a fund, I do not see any reason why my Department or any other Department should have a role in administering a fund of this nature. The administrative resources necessary to administer such a fund would, in any event, not be available in my Department. If businesses or commercial parties were interested in setting up such a fund there is no reason why it could not be administered by one of the existing trade associations.
As to the detailed provisions of the amendment, I envisage difficulties in organising any fund where contributions are made on a voluntary basis and again I do not see any role for a Government Department involving themselves in trying to secure agreement as to the amount of such contributions. The final paragraph of the Senators' amendment is so widely framed that it would cover any type of damage whether or not it was covered by insurance.
The intention behind having such a fund, if I understand the Senators correctly, would be to deal with cases where there is a difficulty in obtaining insurance cover. We are, of course, concerned at the prospect that in certain circumstances businesses might have difficulty in obtaining malicious injuries insurance as a result of this Bill. The Minister of State at the Department of Industry and Commerce who has responsibility for insurance matters, is taking up the matter with the insurance industry with a view to seeing if there are any practical ways to help alleviate any problems that may arise. As part of that consultation process the Minister of State could, of course, raise the question of a fund of the type in question but, as I have said, there would be no question of any State subvention. It would, however, be open to interested businesses to approach the insurance industry directly in the matter and this may, in fact, be more appropriate since, as I have said, there cannot be any question of a direct State involvement in such a fund.
I might add that where difficulties do arise it is very likely that similar difficulties already exist in relation to other insurable risks, such as theft, so that the termination of the existing malicious injuries scheme should not alter the situation in those cases to any great extent. What one is dealing with in these cases is a general problem in relation to insurance cover and not a problem confined solely to malicious damage. That general problem may in some instances relate to the fact that one is dealing with old buildings which may be fire hazards due to the material used in construction, lack of sprinkler systems, faulty electrical wiring and such like. In any event, as I have already said, the question of what practical steps might be taken to deal with any vacuum that might arise as a result of the passing of this Bill is being taken up with the insurance industry.
Senator Hillery mentioned the Motor Insurers' Bureau. The main difference between motor insurance and property insurance is that there is a minimum insurance requirement in law for motor vehicles. There is no such requirement in law as regards property. Therefore, one cannot draw a direct parallel with the Motor Insurers' Bureau as it is structured.
I did not draw a direct parallel and the amendment was put forward in the spirit of finding some alternative for a particularly acute problem that will continue in the case of small businesses. Predictably as far as I can gauge it, the Minister's response has been practically identical to the one in the Dáil. Our concern remains about the severe impact of this cut-back exercise. The implications of the Bill for the groups I have elaborated on must be taken seriously. The scale of the crime problem is still such that the various categories mentioned in the amendments are being subjected to further penalties for increased insurance cover, especially schools, community centres and businesses in crime torn urban areas. Our case is that the removal of the right to compensation for malicious injuries is particularly unfair to a range of vulnerable categories. They should continue to enjoy the benefits of the Malicious Injuries Acts until the crime level is very considerably reduced.
On the question of the reduction of the crime level I want to link up amendment No. 10 which asks that section 2 (1) of this Act shall not come into operation until the levels of crime and vandalism recorded in 1985 have been reduced by at least 50 per cent. As long as the crime level remains as high as it is, as day follows night, crime will continue, the vulnerable areas I identified will suffer, and will have to pay increased insurance premiums in difficult times in order to get that cover. In the case of some of these organisations and groups, the level of insurance premium will be outside their reach.
It is in that spirit that amendments Nos. 8 and 9 were put down, not as ideal models of what might be implemented but rather to get across the idea that an alternative is necessary, as Senator Ryan underlined in his contribution. In conclusion, would the Minister of State inform the House when it is intended that this Bill will be implemented? When will it go into action?
When I read this amendment I was intrigued by it and hoped it would produce something more interesting than that which has been outlined This amendment specifies a rose by another name. It is simply the reincarnation of the malicious injuries code without recourse to the Circuit Court, but instead with recourse to a tribunal. That is how I understand Senator Hillery's amendment. If I have misunderstood it, he might correct me.
As a society we must ask ourselves the basic question: are we going to pick up the tab for every citizen's misfortune? I find the answer of the principal Opposition party to this Bill very intriguing when one bears in mind their attitude to the Health (Amendment) Bill which we discussed in this House and which was welcomed by them some weeks ago. The effect of that Bill was to take off health boards the onus in relation to charges for maintenance and treatment imposed by damage against persons who suffered injuries in motor accidents, and to ensure that such charges were paid by the insurance company involved, and not by the public body. If the logic which the principal Opposition party displayed at that time in supporting the Health (Amendment) Bill were carried forward, there should be total support for the Malicious Injuries (Amendment) Bill, 1986. For that reason I support this Bill and oppose these amendments which are simply a rose by another name.
I oppose this amendment on the basis that underlying it is the idea of the establishment of yet another form of tribunal. Somebody will have to ajudicate on the citizens' misfortune. Here again we are going to establish, above or outside our existing court system, yet another form of tribunal with presumably six, eight or ten members and its own form of administration, its own bureaucracy. In recent years we have seen the establishment of far too many tribunals to deal with either specific or ongoing situations. For that reason I oppose this amendment.
I do not propose to elaborate on that much further. I made my case. I have argued for a tribunal or something similar to what we have in mind on the basis that there is a need to meet the most urgent problems of businesses in crime torn areas.
Senator Durcan refers to citizens' misfortune. The reality is that crime levels are extremely high now and that people are being very adversely affected by them. I have been attempting, with the other speakers on this side of the House, to point out the harsh realities of the application of this Bill. While Senator Durcan in the course of his Second Stage contribution said that he would like us to agree with the principle of the Bill, as realistic Members of this House we have to look at the practical implications to see what can be done for deserving cases.
I am still at a loss on two points. One of the advantages of Committee Stage in this House is that we can discuss a Bill and be illuminated in darkness. I am still in darkness because I do not understand the logic behind these amendments, bearing in mind the support which was given by Senator Hillery and his colleagues for the Health (Amendment) Bill and the fact that there is now a complete change of tack on the part of the principal Opposition party in relation to the underlying logic and the underlying principle. He might explain further for me why this departure has come about.
I would like to reply to Senator Durcan. I am sure that in his legal profession, after the passing of this Bill, he will have plenty of clients arriving in his office who will be covered neither by insurance nor by this Act.
They are going to lose a great deal of money as a result of this Bill.
Suppose you are driving down the road, and for some reason you have an accident involving somebody who is not insured. You have no recourse to your third party insurance because that does not cover it and the person with whom you are involved in the accident has no insurance. Therefore you have access to a fund known as the Motor Insurers' Bureau fund which covers this type of consideration. This amendment was put down because we feel that many property holders will be coming onstream who will have no insurance at all and will find themselves in difficulty if there is no fund. Such a fund could be accumulated by insurance companies or by the Government and the Minister could have control over it. As Senator Hillery has said, the provision under amendment No. 10 will not come into operation until we have at least a 50 per cent reduction in crime. We do not see that on the horizon at the moment but we hope that the Government will ensure that the rate of crime will reduce rather than increase. If we had reached that stage we on this side of the House would not need to be as concerned as we are about it. With the impact of crime and its escalation today, we feel that there should be some fund such as the Insurers' Bureau fund that will compensate people who will not be covered either by the Act or by any insurance company.
I seek further clarification because we are all trying to help by introducing the best legislation possible. That is why we are here and that is why so much interest is being shown in this debate this morning. My understanding is that the Motor Insurers' Bureau are funded entirely by resources other than State resources, that the Government contributes nothing to that fund and that the moneys within that fund come from all our insurance premiums. Maybe I am wrong but that is my understanding.
That is right.
There is no contribution whatsoever by the State. That is reasonable. Here we have a departure from that principle, and it is a very unfair comparison to draw. Here we have a suggestion that the State should contribute. In other words, the suggestion is that we have the malicious injuries code reproduced in another form, presided over by a tribunal but with State funding to an agreed extent. That is what the amendment provides. I oppose that. We must be realistic and tell people that they must in measure look after themselves and that the big net which was the State is not there any more. That is what we did in this House when we enacted the Health (Amendment) Act which was welcomed on all sides of the House. We are trying to bring the same principle a little further in this Bill today.
The question asked by Senator Hillery was with regard to the enactment of this legislation. Any damage that is caused after the passing of the Act will be subject to the new legislation. Any damage or any claims prior to that will be dealt with under the 1981 legislation. The restricted scheme applies only to damage caused after the enactment of this Bill.
Allowing for the time taken to process claims, it is unlikely that the revised scheme will effect major savings before 1987 or 1988. The statutory limitation on taking actions under the Malicious Injuries Act, 1981 is three years. Notice of intention to make a claim must be served on the local authority in question and the Garda within 14 days of the incident giving rise to the damage. That just clarifies one point. On the other point with regard to the crime levels, there is no doubt at all that the overall downward trend of crime which commenced two years ago is continuing. More importantly for the purpose of this legislation, this drop in crime is reflected, according to the incoming President of the Insurance Institute of Ireland, in the lower number of insurance claims arising from specific criminal operations. This must inevitably lead to a beneficial effect on the general level of insurance premiums and availability of insurance.
On a point of clarification, perhaps the Minister will spell it out a little more clearly for me. When this Bill is passed by the House, with a Government majority, it will then go to the President for signature and it will then be the law of the land. When does the Minister estimate that will be? That is my specific question.
This is July. I am sure as soon as the President finds time to sign the Bill.
Is the amendment withdrawn?
