The purpose of the amendment is to expand the circumstances in which a member of the Garda — this section provides for the giving of greater surveillance and enforcement powers to the Garda — may require a person to produce his moneylender's licence. Whereas the term "collecting repayments" has its own connotations, the phrase "engaged in the business of moneylending" covers a broader spectrum and ensures that whether a person is endeavouring to loan money or otherwise engaging in any aspect of a moneylending business, including the collection of money, a garda may require him to show that he has the proper authority to do so, either as the holder of a moneylender's licence or because he holds an authorisation from a moneylender to engage in the business on his behalf, as provided for in the new section 83, which arises from the passing of amendment No. 260. This amendment aims to entrap unlicensed moneylenders.
SECTION 89.
Chairman, at our last meeting in September you asked us to sleep on this.
We had a Cinderella like sleep since then.
I am persuaded that the Minister is correct in expanding the definition and that this will improve matters. However, this hinges on the robustness of the definition of moneylender. On this side of the House we indicated that we wanted definitions tightened up. If someone could argue that their business did not primarily involve the lending of money, they would be free of the obligation in section 89. There is an onus on us to satisfy ourselves that these definitions are watertight and this can be done on Report Stage. Subject to this, I am happy with the amendment.
I do not want to be obstructive but section 89 does not seem to even require that the demand be made in a public place. Is it intended that this can happen anywhere?
The section applies whenever moneylending it is brought to the attention of the Garda or when it decides to investigate particular circumstances. Such circumstances do not have to be circumscribed in a place. Is this what the Deputy means?
Is the Deputy referring to the section or the amendment? There will be an opportunity to speak to the section after we have dealt with the amendments. Are you specifically referring to "engaged in the business of moneylending"?
"Collecting repayments" presupposes that one is out on the street. One does not engage in collecting repayments sitting at a desk or in a golf club. If a garda thinks a person is engaged in the business of moneylending——
Illegal.
A garda is entitled to ask any person for his authorisation. Does this apply anywhere and in any circumstances? If one is sitting in a hotel lobby making a deal with somebody to lend him money, can a garda ask him to produce his licence?
I think that is far fetched. The Garda has a great deal of work to do. Members of the force do not decide in the mornings what public places to swoop on in order to get at moneylenders.
I accept that but the Minister is widening the Bill to cover every moneylending transaction and everything that could be part of the business of moneylending. Pior to this the Bill was confined to collecting repayments. I ask the Minister to consider between now and Report Stage whether we are widening this too much by allowing gardaí to demand of people——
No, it is necessary to include it because the broader scope of what we are proposing in this amendment will, we hope, act as a trap to apprehend unlicensed or illegal money lenders.
Is a person obliged to carry the permit?
One can carry it or an authorisation. If not carrying it, I presume they can produce it at the nearest Garda station.
Where is it stated that there is an obligation to carry it?
Amendment No. 228, which states "or a copy thereof", was suggested by the Incorporated Law Society to require a person to produce proof. The original document should be required, not a copy thereof, because copies may be tampered with.
I accept that, but is there a positive obligation in the statute to be in possession of this?
Does the Deputy mean to carry a permit?
Yes.
One should carry the permit, but if one does not, one should be able to produce it at the nearest Garda station. The Garda Síochána allow this to happen with other authorisation papers. However, as I am not sure about this, I will have to come back to the Deputy on it.
I want to clarify this point without being obstructive. Is there a positive obligation in the Bill to carry a permit?
Either a permit or an authorisation?
Yes. The Minister should consider on Report Stage placing an obligation on someone who is carrying out a function in a public place to carry the permit on them. Deputy Bruton has reminded me that section 82 (4) allows for the issuing of such a form to people. However, it does not seem to require someone to carry it.
My understanding is that one should carry it on them. However, if one does not do so, one should be able to produce it. That was my understanding when we were drawing up the Bill.
There is no doubt that is implied in the Bill, but there is no explicit duty to carry it. The Minister could improve the Bill if she inserted an explicit duty to carry it and said that a person who collected repayments would commit an offence if he did not carry his permit. Otherwise, if a garda stopped him he could say he left it at home. This could lead to a chaotic situation where the garda would have to ask if he could arrest him because he did not produce his permit.
This point arose when we were drawing up the Bill. In theory, one is meant to carry a driving licence, insurance certificate or whatever. Most people carry these on them, but if they do not, they can produce them at their nearest Garda station.
Section 90 states that "If a member of the Garda Síochána has reasonable cause to suspect that a person has contravened this section or section 88 or 89.....”. However, the only prohibition in section 89 is obstructing or interfering with a garda. One does not contravene section 89 by not carrying the permit.
It may require that person to produce his moneylenders licence or a copy thereof.
Yes, but not having it does not contravene it. The Minister could improve this section by inserting a third subsection.
We will look at that point.
Would it not be possible to take a leaf from the recent Road Traffic Bill, which allows a person to produce their licence at a Garda station within a given period, for example, three days?
If he does not have a permit, he will give the excuse that he left it at home. However, the garda must be in position to say he will arrest him because he does not believe he has a permit or licence. He may believe he is an unlicensed leg breaker, not a licensed moneylender. I am trying to prevent a cock and bull story being spun to a garda who must decide if he has the power to arrest someone he disbelieves. The person does not produce the permit to the garda, but he is not committing an offence by engaging in collection without carrying it on him. The garda must decide if he can arrest him for contravening section 89 when there is no obligation on him to carry the permit.
The matter will be considered between now and Report Stage, although I cannot guarantee that it will be inserted.
I move amendment No. 228:
In page 50, subsection (1), line 15, to delete "or a copy thereof".
This amendment was suggested by the Incorporated Law Society so that the gardaí can require a person to produce proof. The original document should be required, not a copy thereof, because copies may be tampered with. This also applies to an authorisation.
A collector should have a personal authorisation naming them as the authorised collector, not a copy of someone else's licence.
I move amendment No. 229:
In page 50, subsection (2), line 19, after "subsection (1)" to insert "and shall comply with any requirement made of him under that subsection".
A person shall not interfere with or obstruct a member of the Garda Síochána who requests from that person, whom he suspects to be engaged in the business of moneylending, the production of a moneylender's licence or an authorisation. The amendment is self-explanatory and requires that a person who is requested by the gardaí to do any of the things required in subsection (1), to produce his moneylender's licence or his authorisation to engage in business, shall comply with that request under that subsection. However, it does not take account of Deputy McDowell's point.
Not completely.
It still implies that the garda could suggest producing it at a neighbouring Garda station at an appropriate time. This amendment was suggested by the Director of Consumer Affairs.
I accept it.