Select Committee on Enterprise and Economic Strategy debate -
Wednesday, 12 Feb 1997

SECTION 5.

Mr. O'Malley

I move amendment No. d1:

In page 7, subsection (1)(c), line 12, after "regulations," to insert "or".

Sections 5 and 6 are different from the rest of the Bill in as much as they enact specific legislative provisions. To that extent, they are more important because they will form part of the substance of law when they are passed. They should be examined more carefully than the other sections, some of which are fairly meaningless and may never come into operation.

Section 5 provides that proceedings will not be instituted against a person for an offence in relation to any particular arms. Subsection (1) sets out four circumstances in which proceedings shall not be instituted and there is a prohibition on the institution of proceedings. It is obvious, from reading the section and the background of the Mitchell principles, that the intention is that somebody who brings himself within the terms of any one of the four paragraphs will be exempt from proceedings. The way to express that would be to put the word "or" between each paragraph. A person will be exempt if he can bring himself within any one of them but it will be difficult for anybody to bring themselves within all four. Without the word "or" it appears the person must comply with all four paragraphs in order to be exempt. It may be so difficult to do this that people will not take up the offer.

The point of the legislation is to facilitate the decommissioning of arms and section 5 is part of the facilitatory process by exempting people who would otherwise be prosecuted. A similar point arises regarding section 6. Evidence could be obtained from arms that have been decommissioned or handed up which could help to obtain a conviction for certain crimes. Section 6 states that shall not be used either. In some respects I am not happy about this matter because I do not like people getting away with serious crimes, particularly as many of them consisted of murder, and sometimes multiple murders. However, if the Bill is necessary — Mitchell thought it necessary and we all agree — it should be right. It should not be there on the face of it but not operated in practice. If a person must prove that he comes within all four paragraphs to gain exemption, he may find it difficult to do so and on reflection he may decide not to decommission weapons where he would otherwise have done so.

It is confusing in the context of subsection (2) which states "Without prejudice to the generality of subsection (1). . ." This implies, by virtue of the words it uses, that there is a general exemption in subsection (1). This was my initial reading of it until I realised that a person must comply with all four conditions. The phrase, "Without prejudice to the generality of subsection (1), regulations may specify offences to which it applies" is confusing although there may be an explanation for it. Subsection (3) states that it will only apply to certain specified offences. The British Bill does it differently. It is probably ultimately similar in effect but the approach and the drafting are different. However, since we have taken a more specific course than the more generalised British approach, we are in more danger of going wrong and it is not something one would want to go wrong.

Mrs. Owen

Deputy O'Malley is correct; section 5 is more prescriptive in the sense that it is less enabling. However, sections 5 and 6 do not come into force until the terms of section 9 have been fulfilled and the Bill as a whole is enacted. It is not the case that parts of the legislation will be in operation separately. If the legislation is signed into effect under section 9, section 3 requires a further signature and agreement by the Secretary of State and myself or the Minister for Justice of the day. The provisions are not stand alone in the sense described by the Deputy.

The matter was raised on the Second Stage and the Minister of State, Deputy Currie, commented on it in his reply. The effect of the amendment would be contrary to the intention and effect of the section as drafted. The intention is that all four criteria will have to be satisfied before the prohibition on the taking of proceedings will apply. Those criteria are set out.

In his reply on Second Stage in the Dáil on 5 February last the Minister of State, Deputy Currie, said:

This is to ensure that the existence of the "amnesty" provided for in section 5, is not misused for unlawful purposes inconsistent with the purpose of decommissioning and to avoid doubt as to the circumstances in which the prohibition on the taking of proceedings will have application. Were it, for example, only necessary for one of the conditions to be met, it would be open to anyone found in unlawful possession of firearms at any time during a period that might be specified for the purposes of decommissioning under the regulations to claim the benefit of the section. That would not be acceptable to the House. That is why it will be necessary for all the conditions to be met before the prohibition on the taking of proceedings will apply. The precise nature of those requirements will be a function of the regulations and arrangements made under the Act. Those remain a matter for discussion with the parties.

I am concerned that the Deputy feels there is some doubt about the issue. I indicated to the Chairman that perhaps a minor amendment should be made to make it absolutely clear that all four criteria will have to be met. The word "and" should be inserted after the word "regulations" in line 12, page 7. Deputy O'Malley has raised the point that there may be some confusion and the addition of "and" would mean that all four criteria will have to be met. Such an amendment would meet Deputy O'Malley's point. I propose that as an amendment to the amendment.

With regard to Deputy O'Malley's point about the British legislation, the purpose of the briefing which was to take place this morning but did not was to give some background to the reasons the British took one approach and we chose another. The British system is more flexible and their legislation can be more enabling whereas we have to be more specific. The British decided to leave the matter to regulation and did not share the regulations with the Members of the House of Commons. They were willing to allow that. The British have not spelled out all the conditions but the intention is that similar conditions would have to be met when they make the regulations. There is no difference between us on that point.

Chairman

I can accept a late amendment with the consent of the committee. This amendment would involve deleting the word "or" in Deputy O'Malley's amendment and inserting the word "and".

Mr. O'Malley

That is the logic of the position as explained by the Minister. We must have either the word "and" or "or". I went for the latter because my understanding was that these criteria were separate. The Minister says they must be taken together and that may have a limiting effect on the whole operation, which I suppose cannot be avoided. If that is the interpretation intended — and I do not greatly dispute it as an objective — the word "and" should be included. I suggest that my amendment should be changed to substitute "and" for "or".

Chairman

The amendment will then read: "In page 7, subsection (1)(c), line 12, after ‘regulations', to insert the word ‘and'". Is that agreed?

Mr. O'Donoghue

I agree but these conditions are extremely restrictive. It seems in the final analysis some people may use them as an excuse not to decommission arms. Will the Minister explain why is was necessary to be so restrictive? Did the British Government insist on it or was it felt that this was the only way the objective could be achieved successfully?

Mrs. Owen

We have set down four conditions but they will be qualified by the regulations. The requirements of the regulations or the arrangements as respects the person or the decommissioning must be met. Until we reach the point where we have agreement about decommissioning and the views of those involved in the talks at that stage are taken into account, we cannot say what will be required. The regulations will set out how the weapons will be handed in and destroyed. There may be agreement that people will destroy the weapons themselves. I do not know. That is the point of reaching agreement on how the decommissioning will happen.

The purpose of the amnesty is not to allow people who are involved in armed robberies or other heinous crimes to avoid prosecution for such serious offences. It must be used as sparingly as necessary but used nonetheless for the purpose of bringing lasting peace. We have a mechanism, if it is needed, to allow people to decommission the weapons they have held for "political" purposes, as they would see it. It is important to understand that we are not entering into a blanket amnesty so that any bank robber or mugger can dump a weapon used earlier in the day to commit a crime. I make no apology for it being a strict amnesty.

I thank Deputy O'Malley for raising the possibility of doubt in relation to the conditions and for agreeing to amend the amendment.

Amendment, as amended, agreed to.

Mr. O'Malley

I move amendment No. e1:

In page 7, subsection (4), line 24, after "committed," to insert "before or".

The section provides in subsection (4) that subsection (1) will not apply to proceedings for an offence alleged to have been committed after the decommissioning by the use of or in relation to those arms. That is presumably if somebody who obtained possession of the arms after decommissioning used them for an improper purpose — not the authorities but if the arms were stolen from the authorities.

In light of what the Minister said about the relative narrowness of what she calls the amnesty under section 5, is it right to have it applied in a blanket way to everything that went before the decommissioning? I would have thought it was appropriate not to prosecute those who handed up a Kalashnikov rifle but our experience of these arms in the hands of the Provisional IRA etc., is that the same weapon has frequently been used in a succession of crimes over a period of several years. It has been shown, for example, that a weapon captured as a result of a murder was also the weapon used in a murder years earlier. Some weapons have been shown to have been involved in three, four or five major criminal acts of that kind.

Subsection (4), as drafted, suggests that it could be claimed by somebody involved in the improper use of that particular weapon five years earlier in a different place that the person acquires a certain exemption or the benefit of what the Minister calls an amnesty, although that word is not used in the Bill. That would be wrong and I am trying to avoid that. I agree somebody should not be prosecuted because he physically hands up the weapon but it should not exempt his colleagues who might have used it for murder a year earlier in a different place.

I refer to the Minister's statement when she said I was wrong in saying sections 5 and 6 were different from the remainder of the Bill because, under section 9, they would not be brought into operation until some time in the future. That is not the point I made. When under section 9 the bulk of the Bill is brought into operation, all the other provisions only operate if, and when, the Minister decides to make a regulation, but sections 5 and 6 are then part of the permanent substance of law without any further action on her part. That is why they are important and different. It is not as she stated. I can see them being used by a variety of defendants who, if charged in respect of certain offences, will say that weapon was ultimately given up under the 1997 Act and, therefore, any use to which that weapon was put is exempt. That would not be the intention of this committee or the Oireachtas and it would not be reasonable. Therefore, I would have thought one way of doing it was under subsection (4) where there is a reference to offences alleged to have been committed after decommissioning and also to take out the subsection (1) exemption in regard to offences alleged to have been committed prior to decommissioning, not as part of it.

Mr. O'Donoghue

If Deputy O'Malley's amendment is accepted the net effect would be to ensure there would be no decommissioning and the entire objective of the legislation would have been negated. I could not agree with his amendment. It defeats the principal objective of the legislation.

Mrs. Owen

It does not so much defeat the purpose of the legislation. Deputy O'Malley's amendment arose, I suspect, as a result of his earlier amendment which we have changed. If I had accepted the amendment "or" then what he says in this amendment would make sense but having changed "or" to "and" and as the conditions are cumulative, then this amendment does not follow. It is unnecessary and it flowed from the either-or test as opposed to the cumulative test which will be put.

Given that the requirements of subsection (1) are intended to be cumulative, that subsection will not act to prohibit the taking of proceedings in regard to any pre-existing offence alleged to have been committed before the process of decommissioning has begun. There is a further consequence of accepting this amendment which I am sure is unintended. The Bill would fail to give full effect to the recommendation made by the International Body that arms made available for decommissioning and information obtained as a result of decommissioning should be inadmissible in evidence because section 6(3) and (4) makes provision in regard to an exception in the case of the subsection which the Deputy wishes to amend.

Deputy O'Donoghue's point is valid. We are ensuring that decommissioning works and that it does not create a hurdle to bringing about substantive talks and agreement in Northern Ireland. There is a fine balance to be struck so that people will be encouraged to decommission and not make it such that there will be absolutely no hope of decommissioning. We must make it difficult for people to hide behind a decommissioning scheme when it is agreed but equally but we must make that scheme work. Our aim is to get these wretched arms out of the system and to ensure people do not return to arms. We must achieve a finely tuned balance in an agreement to get decommissioning to work.

I have nothing to decommission, nobody in this House has anything to decommission and the vast majority of people involved in the talks in Northern Ireland have nothing to decommission. Our aim is to get those people who have something to decommission to agree to a decommissioning scheme that will take arms, weapons and explosives out of the system.

Deputy O'Malley was right. Once section 9 is operative, sections 5 and 6 are available for enforcement but they do not become operative until there is a decommissioning scheme and an agreement. Although they await being put into action, they do not become operative because the Bill is contingent on an agreement being reached, a commission being set up and a decommissioning scheme being put in place. Until such an agreement is reached we must await developments if the legislation is to be of benefit. Deputy O'Malley's amendment has become superfluous because the earlier amendment was accepted.

Mr. Browne (Carlow-Kilkenny)

There is a vast difference between crimes committed before and after decommissioning. The term "before" cannot be included because it would negative section 5 in its entirety. I do not believe this section is all embracing; it is mere gobbledygook about complying with the conditions for decommissioning. The section stipulates that a person surrendering a gun cannot use it to rob a bank, must surrender it within the time appointed, must comply with the regulations and stresses that the crime he or she committed must be part of the decommissioning and was done in pursuance of the regulations or arrangements. That simply states that a person surrendering a weapon; it does not refer to robbing a bank or murdering an RUC officer. However, if crimes committed before decommissioning are included such a person would be automatically apprehended.

Mr. O'Malley

The Minister is correct. I put down this amendment in the belief that section 5(1) would be read disjunctively rather than cumulatively. By the insertion of the word "and" after subsection (c), it becomes cumulative which changes the intent of the section a great deal. In that context, I do not believe my amendment is necessary because subsection (1) is more restrictive than I first thought and does not cater for offences committed five years earlier. On the other hand, the inability to use it as evidence under section 6 is relevant. I do not know how this will affect the provision. If a gun surrendered under section 5 is proved to have been used in a murder committed five years earlier it cannot be included in evidence because of the provisions of section 6. Where do we stand in that regard? I will withdraw the amendment and we can deal with this matter on section 6.

Amendment, by leave, withdrawn.

Section 5, as amended, agreed to.