SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Wednesday, 15 Oct 2003

Vol. 1 No. 23

Private Security Services Bill 2001: Committee Stage (Resumed).

Sections 9 to 11, inclusive, agreed to.

NEW SECTION.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O’Dea)

I move amendment No. 29:

In page 13, before section 12, to insert the following new section:

"12.-(1) The Authority may, with the approval of the Minister and the consent of the Minister for Finance, make a scheme or schemes for the granting of superannuation benefits to or in respect of the members of staff of the Authority, including the Chief Executive.

(2) Every such scheme shall fix the time and conditions of retirement of all persons to or in respect of whom superannuation benefits are payable under the scheme or schemes, and different times and conditions may be fixed in respect of different classes of persons.

(3) Every such scheme may be amended or revoked by a subsequent scheme under this section.

(4) Any scheme submitted by the Authority under this section shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the Authority in accordance with its terms.

(5) (a) Any dispute arising as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme or schemes under this section shall be submitted to the Minister.

(b) The Minister shall refer the dispute to the Minister for Finance, whose decision shall be final.

(6) A superannuation benefit shall not be granted by the Authority to or in respect of a person on his or her ceasing to be Chief Executive or a member of its staff, or any other arrangement to be entered into by the Authority for the provision of such a benefit, otherwise than in accordance with a scheme or schemes under this section.

(7) Any scheme under this section, including an amendment of a scheme, shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(8) In this section 'superannuation benefit' means any pension, gratuity or other allowance payable to or in respect of a person on ceasing to be the Chief Executive or a member of the staff of the Authority".

The purpose of this amendment is to insert a new section dealing with superannuation arrangements for staff recruited by the authority itself. This is a standard provision in legislation setting up bodies of this type.

Mr. Costello

Is it necessary to give a detailed statement of how superannuation operates? Does it not follow directly from the appointment of any officer that a superannuation package would be put in place?

Mr. O’Dea

It is envisaged that most of the staff will be civil servants and will be covered by the Civil Service superannuation system. It will be necessary to recruit some people from outside the Civil Service, and those are the people who will be covered by these provisions.

Mr. P. McGrath

This body was intended to be self-financing. The legislation also envisages the transfer of some civil servants to the body. How will the superannuation arrangements work in the longer term if the body is to be self-financing?

Mr. O’Dea

The Minister has given consideration to the select committee's earlier discussion on that matter and will have some comments to make on the matter when he addresses the committee again. He is preparing a note on it.

Amendment agreed to.

SECTION 12.

Mr. O’Dea

I move amendment No. 30:

In page 13, subsection (1), line 27, to delete "section 36(3)” and substitute “section 36(5)”.

This is a drafting amendment to correct a misprint in a cross-reference.

Amendment agreed to.

Mr. Costello

I move amendment No. 31:

In page 14, lines 1 to 5, to delete subsection (5).

Subsection (5) states:

If it appears to the Court, on application by the Authority, that the person has failed, without reasonable excuse (proof of which shall lie on the person), to comply or comply fully with the order, the Court may treat the failure for all purposes as if it were a contempt in the face of the Court.

It is illogical that there should be a presumption of contempt. In the case of the second group of bin charge protesters to come before the court, the court queried their precise understanding of the outcome of their action? Would such a situation not present problems here? Would it not be better if this sweeping provision of subsection (5) were removed? It seems to me that it is too wide and too coercive in its intent.

Mr. O’Dea

This section deals with an important function of the proposed authority, namely investigation of its own motion. Subsection (5) simply provides that persons who fail to comply or fully comply with a court order shall be in contempt of court. The section provides for an investigation by the authority on any matter. For the purpose of such an investigation, as can be seen in subsection 12(2), the authority may require various conditions. It may require people to come forward and items to be produced. If the person does not comply with the requirement within the specified period the authority can apply to the District Court, which will make an order to comply. Subsection (5) states that if a person does not comply with such a court order, that failure will be treated as a contempt in the face of the court.

Is Deputy Costello saying it is not necessary to state that and that it follows automatically?

Mr. Costello

I am saying the opposite. If a court is to make a finding of contempt of court, the contempt would have to be intentional. This provision is so broad that it seems to be contrary to the finding in the anti-bin collection case where the judge found that the protesters were not intentionally in contempt of court because they did not have full cognisance of the import of their actions and that an order had not been served on them in a proper fashion.

Unless the intent is to hold the court in contempt and there has been a full understanding of this, the ruling I mention could find this subsection constitutionally questionable.

Mr. O’Dea

The bin collection protest was a civil protest. This section refers to a targeted investigation by the authority which may involve possible criminal or even paramilitary activity. It would be materially different from the circumstances of the bin protest.

I will look at the judgment to which the Deputy refers to see if it is relevant to his amendment and return to it on Report Stage.

Mr. Costello

The finding was that unless there is full knowledge of the effect of the action it is not contempt. This subsection makes a presumption of contempt. I believe it is on questionable legal ground.

Mr. O’Dea

This refers to an actual investigation. The bin protest case involved members of the public who were involved in a civil protest. They are two quite different situations. However, I will look at the judgment.

Amendment, by leave, withdrawn.

Section 12, as amended, agreed to.

Section 13 agreed to.

SECTION 14.

Chairman

Amendments Nos. 32, 35, 37, 60, 63, 65, 74, 83, 85, 86 and 89 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Mr. O’Dea

I move amendment No. 32:

In page 15, subsection (4), line 22, to delete "£1,500" and substitute "€3,000".

These amendments convert penalties expressed in pounds into euro and increase the penalties in line with advice given by the Office of the Attorney General. The Bill contains provisions stating that a person who is guilty of an offence is liable, on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months, or both. Other provisions simply provide for a fine of £1,500.

The amendments we are dealing with here provide that where imprisonment is not an option, a fine of up to €2,000 may be imposed. Where imprisonment is an option, the maximum fine increases to €3,000.

Mr. Costello

The fine has been doubled throughout the Bill from £1,500 to £3,000. Is €1,500 the standard summary offence fine and is this a new departure? If so, has anything changed regarding the 12 months sentence? That seems to be the old sentence for summary offences. The Bill seems to increase the amount of the fine but retains the period of imprisonment. There is no comparison between a £3,000 fine and 12 months in prison. The two are not proportionate. A sentence of 12 months in prison is a much more severe sanction than a fine of £3,000. A person who could not afford to pay the fine would, presumably, go to prison, while someone with a great deal of money could pay the fine and would not have to go to prison.

Mr. P. McGrath

Some of the fines are being increased to €3,000 and some to €2,000. Why are the amounts not the same?

Mr. O’Dea

The fines are not being increased from €1,500 to £3,000. They are being increased from £1,500 to €3,000. The Bill was drafted before the introduction of the new currency.

Under the new District Court guidelines the maximum prison sentence that can be imposed by a District Court is 12 months. That has been the position and remains so. The new maximum fine that can be imposed by a District Court for a summary offence is €3,000. That is where the figure comes from.

Deputy Paul McGrath asked why some offences carry a €2,000 fine and some a €3,000 fine. The smaller fines are for lesser offences.

Mr. P. McGrath

The initial amounts were all the same. The fines for some offences have been raised to €3,000 and others to €2,000.

Mr. O’Dea

In more serious types of offences where imprisonment is an option, the new maximum fine of €3,000 is provided. In the lesser offences where imprisonment is not an option, a maximum of €2,000 is deemed to be sufficient. It might be neater to have a fine of €3,000 across the board, but we think the maximum of €2,000 is sufficient for lesser offences. The maximum fine will be opposed very rarely.

I accept Deputy Costello's point about payments by corporate entities. However, we are talking about a summary offence and this is the maximum financial penalty the District Court can impose. This does not mean a prison sentence could not be imposed. The directors of a corporation can draw a prison sentence if the corporation is convicted of an offence, even a summary offence, which carries a prison sentence.

Mr. Costello

It is difficult to get corporate entities into prison. This seldom happens. A corporate body will have more financial resources available to it and a fine of €3,000 is very small for such an entity. Neither fine correlates to 12 months imprisonment. Is it not possible to have some sort of gradation in fines? I accept that it would complicate matters, but the present system has no equity and is not related to ability to pay.

Is the Law Reform Commission not in the process of producing legislative guidelines on the relationship between fines and sentences of imprisonment, relating fines to ability to pay and distinguishing between individuals and corporate entities?

As we are engaged here in changing the amounts of fines, perhaps we should look at these related matters as well. Should we increase the maximum fine for a summary offence, perhaps to €10,000, in order that more cases could be dealt with in the District Court? Such an amount would be more proportionate to a prison sentence of 12 months.

Mr. O’Dea

I understand what the Deputy is saying. I part company with him on the question of how we should approach the matter. The Minister will shortly publish legislation on indexation of fines, which will deal with the whole fines area and will, no doubt, deal with points such as those raised by Deputy Costello. Gradation of fines would not be possible. The Bill provides for a maximum fine of €3,000.

There are certain instances in the Bill where a person can be prosecuted on indictment and the penalties are greater in those cases. While I do not disagree with the logic of many of Deputy Costello's points, they will be best dealt with in the indexation of fines Bill.

Amendment agreed to.

Question proposed: "That section 14, as amended, stand part of the Bill."

Mr. Costello

The inspector appears to be quite a powerful person. Section 13 states that the authority may appoint members of its staff to be inspectors, including a chief inspector. It will be quite an extensive body by the time all its personnel are recruited.

Section 14 gives the authority extraordinary powers. It allows that an inspector may "at all reasonable times enter, inspect, examine and search any place where the inspector has reasonable cause to believe that a security service is being provided". The inspector does not need to believe that a security service is being abused.

Premises may include personal accommodation as well as offices. A sole trader might be working from his or her own home. Section 14 also states that, "an inspector shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant". No provision is made in search warrants for searching part of a premises. Once the holder of a search warrant enters a premises, he or she may search the entire premises.

The powers granted under this section are extensive, there is no caveat and no one will supervise the inspectors. What training will the inspectors receive?

The Minister for Justice, Equality and Law Reform recently proposed that a superintendent of the Garda, rather than a judge or peace commissioner, should be allowed to grant a search warrant. This Bill does not even require a member of the Garda to grant permission for a person's premises to be searched where there is not even a suspicion that an offence has been committed.

The section makes no reference to the qualifications or training required of inspectors, what will happen in the event of a confrontation or how a warrant can be obtained without being sought from a third party. The extensive powers granted under this section will give rise to considerable abuse and confrontation.

Mr. O’Dea

Extensive powers are being given to the inspector. That is deliberate policy. The inspector must have strong powers to pursue his or her responsibilities.

Deputy Costello raises the point that paragraph 14(1)(a) allows an inspector to enter a premises where there is cause to believe that a security service is merely being provided. An inspector may wish to inspect a premises to see if something is wrong. It is ludicrous to suggest that an inspector should only have the power to enter if he knows something is wrong. Often the purpose of an investigation is to see whether or not something is wrong.

There is a safeguard in section 14(1)(d) which allows an inspector to take a member of the Garda Síochána with him or her “if he or she has reasonable cause to apprehend any serious obstruction in the execution of his or her duty”. I believe it would be advisable for an inspector to take a garda with him wherever possible.

Deputy Costello also mentioned the power to enter a private dwelling, under subsection (2). The person who will grant the warrant will be a judge of the District Court. In order to do so, the judge must be satisfied about several issues, about which it would not be easy to satisfy a district justice.

I am not aware that the Minister is contemplating an amendment to allow a Garda super-intendent rather than a district justice to grant a warrant.

Mr. Costello

My point relates to a dwelling which serves both as a trader's home and place of business. The legislation makes no distinction between the two and the powers of the inspector are extraordinarily extensive. An inspector may enter such premises at any time and for no specific reason. There need be no hint of suspicion. An inspector may enter a premises to exercise any function of the authority. This section gives carte blanche to an inspector to enter, inspect, examine and search any place where he or she has reasonable cause to believe that a security service is being provided.

Should an inspector be permitted to come into anyone's office without a "by your leave"? If a sole trader lives in his place of business, an inspector may inspect any room, even abedroom.

Mr. O’Dea

There is no question of an inspector, on behalf of an authority, walking into an office off the street. The inspector may only enter a premises "for the purposes of obtaining any information in relation to a matter under investigation by the authority or of otherwise enabling the authority to exercise its functions".

Mr. Costello

The authority has very broad functions.

Mr. O’Dea

It has very broad functions, but it will not be in the business of going around the country on fishing expeditions in any premises that takes its fancy just because there happens to be a night porter there.

Mr. Costello

The legislation should reflect that.

Mr. O’Dea

There will be plenty of work to keep the authority fully occupied. I do not see Deputy Costello's fears becoming a reality.

I will look at the general functions of the authority and we will see if it is necessary to modify them in any way on Report Stage but I cannot give Deputy Costello any guarantees.

Question put and agreed to.

SECTION 15.

Mr. P. McGrath

I move amendment No. 33:

In page 15, subsection (5), lines 34 and 35, after "information" to insert ", including any information necessary to enable him or her to furnish a parliamentary reply".

Section 15 relates to reports to the Minister and providing the Minister with information. Members experience major difficulties in getting information from Ministers. The catch phrase of many Ministers is "That is not within my area of responsibility and I am not able to give the Deputy information on the matter".

I am trying to ensure that if we have reason to submit a parliamentary question, the Minister will have the information sought. Parliamentarians do not, generally, ask questions unless they have good reason to do so. This amendment would ensure that the Minister would be able to answer parliamentary questions on the authority and that he or she would have the authority to obtain the information required. I hope that can be added to the legislation to enable the Oireachtas to do its work better.

Chairman

It will be difficult for the unit to be self-financing.

Mr. O’Dea

I accept the point made by Deputy Paul McGrath with regard to the provision of information to the Minister to facilitate him in answering parliamentary questions, but I am reluctant to make specific reference to this aspect. The subsection in question already provides that the authority should give to the Minister such information regarding its performance as the Minister may require. I am satisfied this is sufficient to cover parliamentary replies. The wording of subsection (5) states: "The Authority shall give to the Minister such other information regarding such performance as he or she may from time to time require". That surely includes a request for information to answer a parliamentary question.

Mr. P. McGrath

Yes, it should, and I accept that the information should be there. However, the difficulty will arise when the Minister will not respond to a question on the basis that it falls beyond his remit and is a matter for the authority itself. We want to ensure that this will definitely be within the remit of the Minister and, by providing for this in the legislation, we are signaling to the Minister that he must answer questions raised by Members in the House on the role of the authority.

Chairman

If the Minister accepts the amendment, it will create a precedent.

Mr. P. McGrath

I am sure the Chairman, like myself, has tabled questions about the NRA and other bodies that have been established in recent years and has received an answer from the Minister advising the matter is outside his remit. The amendment seeks to ensure that the Minister is accountable to the House for the authority established by this legislation. It is important that the authority should be accountable, particularly, as it will be funded by the taxpayer. Provisions such as this should be included in legislation, or, as an alternative, it might be acceptable if the Minister was to clearly indicate that he will at all times answer parliamentary questions raised by Deputies regarding the authority.

Mr. O’Dea

The Minister will answer parliamentary questions generally, about how the authority is performing its functions and about its activities, but the detailed work before the authority, such as how it deals with particular applications, will be a matter for the authority and not a matter on which the Minister will be answer such questions. If Deputy Paul McGrath seeks to bring about a situation whereby the Minister will be answer questions on the detailed operation of the authority, it would not only be unrealistic, but his amendment would not achieve that.

Subsection (5) proposes that the authority shall give to the Minister information regarding performance whenever he or she requires it. To answer a parliamentary question about the performance of the authority, one would need to get information from the authority. The Deputy's amendment does not add anything to what is already proposed in the Bill.

When an authority such as this is established, the standard provision is exactly similar to the one proposed in the Bill. For example, a body under my jurisdiction, the National Disability Authority, was established by legislation in 1999 and subsection 15(5) of the relevant Act states: "In addition to information provided by the Authority in its annual report, the Authority shall supply to the Minister such information as the Minister may from time to time require regarding the performance of its functions". It is almost a carbon copy of what is proposed in this Bill. The provision is standard and the position is that the Minister will answer questions on the performance of the authority. However, it would not be appropriate for him to answer questions on detailed operational matters with which the authority deals on a daily basis.

Mr. P. McGrath

What would be the Minister's position if a question was tabled on how many bodies had been licensed, the numbers of personnel employed by those bodies or the general areas in which they were functioning, be it in the construction or entertainment industries or wherever? Would the Minister be able to give information on this?

Mr. O’Dea

The Minister will not be able to give information about the reasons why one person was refused a licence, or what consideration was taken into account when a licence was granted to another person. He will answer questions on the matters that have been raised here.

Mr. P. McGrath

As the Minister of State has been forthcoming on this issue, what are his views on questions on such matters as accountability for finances spent or employment and numbers of staff? It should not get to the stage where the Committee of Public Accounts has to examine them. If it is proposed that the Minister will respond to parliamentary questions, they should be covered.

Mr. O’Dea

The First Schedule, pages 30 to 31 of the Bill, provides that the chief executive of the authority will be accountable, both to the Committee of Public Accounts and to the other relevant Oireachtas committees, in respect of those matters.

Amendment, by leave, withdrawn.

Section 15 agreed to.

SECTION 16.

Question proposed: "That section 16 be deleted".

Mr. O’Dea

Section 16 deals with declarations of interest by members of the authority and its chief executive. The Office of the Attorney General has advised that a statutory body such as the proposed authority falls within the definition of "public body" set out in the Ethics in Public Office Act 1995, as amended by the Standards in Public Office Act 2001, and that the practice of establishing a separate declaration of interest regime in respect of State bodies should be discouraged. In view of the advice of the Attorney General and given that comprehensive provisions are set out in the 1995 and 2001 Acts, I now propose that section 16 be deleted.

Mr. Costello

Is the Minister of State proposing the deletion of the section because its provisions are implicit in existing legislation? The section not only requires the chief executive to make a declaration of interest, it is also required of each member of the authority, each member of an advisory committee, each consultant that might be employed from time to time and each advisor and each employee of the authority at a grade or level specified before the appointment. In this regard, the application of the section is wide-ranging. Is the Minister of State now saying this is all covered by the ethics in public office legislation of 1995 and 2001 and everybody who acts under the auspices of the authority in any fashion will be subject to those legislative provisions?

Mr. O’Dea

The obligation imposed is not implicit, it is explicit because the ethics in public office legislation puts an obligation on public bodies and their employees to make declarations of interest. All the categories of employee mentioned by the Deputy will be covered. We have been advised by the Office of the Attorney General that the authority is a public body as defined in the 1995 legislation and as amended by the Standards in Public Office Act 2001, therefore, the matter is covered. If section 16 was not deleted, a double declaration would be required, obliging the same parties to declare the same facts under two different statutory regimes. That is illogical. The deletion of section 16 will not diminish the declaration obligation imposed on the categories of people to which the Deputy referred.

Question put and agreed to.

SECTION 17.

Chairman

I wish to bring to the attention of members a typographical error in amendment No. 34 tabled by the Minister on the list of amendments dated 1 October 2003. In paragraph (c), the first word on the first line should read “he” instead of “the”. Amendments Nos. 34 and 36 are related and may be discussed together by agreement.

Mr. O’Dea

I move amendment No. 34:

In page 17, subsection (2), lines 10 to 23, to delete paragraphs (a), (b) and (c) and substitute the following:

"(a) he or she or any connected relative, or any nominee of his or hers or any connected relative, is a member of a company or any other body which has a beneficial interest in, or material to, a matter referred to in that subsection,

(b) he or she or any connected relative is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter,

(c) he or she or any connected relative is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a matter relates, or

(d) any connected relative has a beneficial interest in, or material to, such a matter.”.

Section 17 contains detailed and important provisions dealing with the disclosure of interests by members of the authority, staff, consultants, advisors and members of advisory committees. Amendment No. 34 replaces the existing reference to a person's household with the term "connected relative". Amendment No. 36 inserts a new subsection (8) containing a definition of the term "connected relative". I should add that this is the approach being adopted in other legislation, for example, the National Development Finance Agency Act 2002.

Mr. Costello

The Minister said that we do not need section 16 because the matter is already encompassed by the declarations of interest provisions in the ethics in public office legislation. Is it not the case that all matters dealing with connected relatives were equally encompassed by that legislation? They are certainly referred to, so why are provisions in one section deemed superfluous and redundant, but not in another?

Mr. P. McGrath

I am always intrigued by definitions that might relate to a connected relative. The term "a partner" is invariably used in them. What is meant by the term "a partner"? When ethics legislation was debated in the House and consideration was given to provisions requiring Members to fill in documentation, former Deputy Ger Connolly was both amusing and serious in his inquiry about what the term meant. In modern times, people come and go like "ships passing in the night", to use a phrase referred to in that debate. What must be declared in these situations? When does a person become a partner as opposed to being part of "a temporary little arrangement", to use another famous phrase? It is always clear when someone becomes aspouse.

Chairman

Is the term "a partner" defined in the Bill?

Mr. O’Dea

No.

Mr. P. McGrath

Perhaps the Minister of State will advise what he means by the term and whether there will be any specification with regard to a declaration of assets by partners.

Mr. O’Dea

I will take Deputy Costello's question first.

Mr. Costello

I have spent some time debating this matter with Senator Norris, which may add to the points on partnership raised by Deputy McGrath.

Mr. O’Dea

I am advised that the ethics in public office legislation only covers a declaration of interest. It does not cover the situation where one has to disclose a pecuniary interest in a matter relevant to the authority, which is provided for in section 17. A separate, specific provision for that is required.

I presume the term "a partner" means a cohabiting partner but I cannot say whether it extends to cohabiting people of the same sex. I do not know if any Minister would be brave enough to attempt a definition of the term. We will have to leave it to be decided in each individual case. The commonly understood meaning of the term is where two people who have not married, live together under the same roof. The only matter on which I cannot be clear is whether the definition extends to same sex partners. I will raise the matter with the Minister, but I do not envisage a definition of the term will be tabled on Report Stage.

Mr. P. McGrath

The Minister can see the difficulty to which I alluded. In modern society many changes are taking place.

Mr. O’Dea

Somebody could have a partner today, the relationship can break up and they could have a different partner tomorrow. However, it should be possible to establish in most cases who is a person's partner at any given time.

Chairman

One could be the partner for the time being.

Mr. O’Dea

Somebody could be the partner the day the declaration has to be made, whereas when one makes a declaration in a year's time, someone else might be the partner or the person might be without one.

Mr. Costello

One could be "in partnership with".

Chairman

The Minister will look at this for Report Stage.

Mr. P. McGrath

The partnership need only last a day before the making of a declaration.

Mr. O’Dea

People will approach this issue in a reasonable manner. If they are together in a relationship, which we would all understand to be a partnership, both parties should declare their interests - otherwise they should not.

Amendment agreed to.

Mr. O’Dea

I move amendment No. 35:

In page 17, subsection (7), line 46, to delete "£1,500" and substitute "€3,000".

Amendment agreed to.

Mr. O’ Dea

I move amendment No. 36:

In page 17, after line 46, to insert the following subsection:

"(8) In this section 'connective relative' means, in relation to a person to whom this section applies, the persons spouse or partner or the parent, child, brother, sister or child of the person spouse or partner".

Mr. O’Dea

It would be appropriate for me to make a verbal amendment to amendment No. 36.

Chairman

Is that agreed? Agreed.

Mr. O’Dea

The amendment should read:

In page 17, after line 46, to insert the following subsection:

"(8) In this section 'connected relative' means, in relation to a person to whom this section applies, the person's spouse or partner or the parent, brother, sister or child of the person's spouse or partner."

This drafting amendment proposes to correct a misprint in amendment No. 36.

Amendment, as amended, agreed to.

Section 17, as amended, agreed to.

SECTION 18.

Mr. O’Dea

I move amendment No. 37:

In page 18, subsection (2), line 9, to delete "£1,500" and substitute "€2,000".

Amendment agreed to.

Mr. Costello

I move amendment No. 38:

In page 18, between lines 11 and 12, to insert the following subsection:

"(4) The following is inserted in the Third Schedule to the Freedom of Information Act 1997:

Private Security Services Act 2003. Section 18.

".

This amendment proposes to insert in the Third Schedule to the Freedom of Information Act 1997, "Private Security Services Act 2003, section 18". The ban in the section on giving information should not interfere in any way with the disclosure of documentation and information requirements set out in the Freedom of Information Act, which would be amended to make a specific reference to the Private Security Services Act 2003, section 18. Will the Minister of State confirm if that is the intention and, if so, if non-interference with disclosure requirements in the Freedom of Information Act is provided for?

Mr. O’Dea

Yes, that is the intention. There is a well established and widely understood procedure for designating bodies such as the Private Security Authority for the purposes of the Freedom of Information Acts. This involves the making of regulations by the Minister for Finance. I see no reason to depart from the correct procedure in this case. It is the intention of the Minister for Finance when he next makes regulations in this regard, and he does so regularly, to include the Private Security Authority as a body to be covered under the terms of the Freedom of Information legislation.

Mr. Costello

Is it the case that the amendment is not required as the legislation provides for full disclosure?

Mr. O’Dea

Yes.

Amendment, by leave, withdrawn.

Section 18, as amended, agreed to.

Section 19 agreed to.

SECTION 20.

Question proposed: "That section 20 stand part of the Bill."

Mr. Costello

I notice in section 20 that for the first time Members of Seanad Éireann and Dáil Éireann are excluded, but prior to this they were always lumped in with criminals, debtors and natural exclusion orders.

Chairman

Is the Deputy saying they are less than those?

Mr. Costello

This seems to be a precedent. All other legislation that rules out membership of an authority or statutory body has always included criminals and debtors with Senators and Deputies. What point is the Minister making here?

Mr. O’Dea

It would be inappropriate for a Member of the Oireachtas or the European Parliament to be a member of the authority. I do not think it is necessary that we specifically rule out bankrupts, debtors and so on.

Mr. Costello

The Minister is not excluding debtors or criminals any longer.

Mr. O’Dea

I am not excluding debtors or criminals in legislation but the Deputy can be assured that they will be excluded. They will not become people who can be members of the authority.

Mr. Costello

Can we not be sure that Members of the Oireachtas will also be excluded?

Mr. O’Dea

I do not see any need to exclude them specifically.

Mr. Costello

It seems to be a new departure.

Question put and agreed to.

SECTION 21.

Chairman

Amendments Nos. 39, 41, 43 and 44 are cognate and may be discussed together by agreement.

Mr. O’Dea

I move amendment No. 39:

In page 19, subsection (1)(b), lines 10 and 11, to delete “, financial position”.

On Second Stage, it was suggested that references to an applicant's financial position in section 21 were imprecise and potentially invasive of their privacy. Having reflected on the points made, and bearing in mind the intended purpose of this requirement, we now propose the removal of the four references to financial position in the section. As a replacement, I propose a new tax clearance section set out in amendment No. 50.

Chairman

That seems reasonable.

Mr. Costello

It does on the surface. We have seen in recent times that the granting and obtaining of a tax clearance certificate is virtually meaningless. The Revenue Commissioners say that when they request the production of a tax clearance certificate, it is their function to check to see that in the previous 12 months the tax affairs are in order. Other than that, they do not make any examination. This was illustrated when the Taoiseach announced that he understood that tax clearance had been obtained in a particular case, while at the same time the tax affairs of the person concerned were not up to scratch. The term "financial position" should be retained in so far as it applies to those involved in insurance or the issuing of bonds. This would ensure that that if things go wrong fly by night companies would no longer be allowed to operate.

I see nothing wrong with providing that apart from questions of financial security, those involved in security firms should also be required to provide some assurances as to their character. The Minister's amendment is questionable. The term "tax clearance" sounds great, but tax clearance in practice is meaningless and has no status in regard to a somebody's true tax and financial affairs.

Mr. P. McGrath

It is proposed that a reference is needed as to the applicant's character, which is acceptable, and to the applicant's competence, as the authority may require. The Minister has not defined what is meant by "character" or "competence". They appear to be vague in meaning.

If somebody is to hold a licence for what will be a very responsible position, involving the employment and training of staff and making sure that the required standards are being applied, they will need to be in a position to register properly to pay their insurance and taxes because they will no longer pay PAYE and so on. We want them to be in a healthy situation where they will be able to run a business properly and employ staff. A tax clearance certificate will not cover that.

Could some reference to the C2 tax clearance certificate be included? This falls more within the Chairm

an's field of competence than mine. There is a requirement when one becomes a sub-contractor to have a C2 tax clearance certificate. There is a need to ensure that those involved will be able to employ people, to stand on their own two feet and pay their dues to Revenue. In view of recent experience, making reference to tax clearance certificates is inadequate.

Chairman

With an operating business, I understand that a tax clearance certificate would be needed not only when applying for a licence, but also when renewing it. The certificate would be given only for one year and only if the PAYE, VAT, and the corporation tax or income tax affairs, whichever might apply, are up to date. Furthermore, applicants would be subject to the various audits undertaken by the VAT, PAYE, corporation tax or income tax inspectors. Obtaining the initial tax clearance certificate would not be difficult, because it would be automatically issued when applicants sign a statutory declaration that all their taxes are up to date and that there may be no liability in terms of PAYE or VAT. However, difficulties could arise when an application is made for renewal as certificates will not be issued if the applicant's tax affairs are not fully up-to-date. This is an improvement over cases where doubts arise as to the financial position of applicants.

Mr. P. McGrath

One could accumulate a huge bill to Revenue in the course of a year.

Chairman

At least it would only be one year, whereas many companies may have accumulated liabilities over five or six years..

Mr. P. McGrath

I am aware of companies which have collapsed, leaving the Revenue Commissioners as the biggest creditor.

Mr. O’Dea

It often happens. However, I agree with the Chairman's view that an annual requirement to update the tax clearance certificate will soon bring an applicant's situation into focus. The parliamentary counsel originally envisaged the use of tax clearance certificates when considering how best to deal with the financial position requirements for applicants. However, the use of the term "financial position" is too imprecise. A situation could arise where an applicant, on being asked to produce statements of their current accounts, could be accepted or declined depending on the status of their affairs. For example, would an applicant be precluded from consideration for a licence if he or she had a credit card debt? The present wording is too imprecise.

Members have mentioned recent events with a nod and a wink and have indicated that other members know to what they are referring. These recent events are under investigation. We will see what conclusions people reach about tax clearance certificates and their relevance and value when they are completed, which will not be too long from now. I note what the Taoiseach said on this matter. If there is a need to change or strengthen the tax clearance certificate procedure, this will be done in consultation with the Office of the Revenue Commissioners. If it is done, this section will provide for it. It refers to tax clearance certificates.

Mr. Costello

The Chairman will know better than anyone that the tax clearance certificate is pretty worthless as a statement of tax compliance. Apart from the issue of tax compliance, one must consider the bona fides regarding the financial status of the applicant. We are looking at character and competence, whether somebody has the means to pay his insurance or bills and whether he is doing so. At the same time, we do not want to be too restrictive. What is to stop a company that collapses establishing itself under the guise of new company, either as a corporate entity or as a sole trader? Could we deal with this? We have been told many companies are operating to a degree in the black economy. We want to ensure they are able to stand on their own two feet when established and that private security services will not continue to have a questionable reputation. Financial status is major factor in this regard.

Mr. O’Dea

Consider a company which exists as a separate legal entity and which applies for a licence and succeeds. If it forms another company and goes into liquidation the new company will be a separate legal entity. The licence that was given to the liquidated company will lapse and will no longer be valid. The new company will have to apply for a licence afresh and provide a tax clearance certificate.

Mr. Costello

It is not——

Mr. O’Dea

The new company will have to apply. We are putting the authority in place. There is an old saying in my part of the country, and probably in that of Deputy Paul McGrath, that one should not have a dog and bark oneself. We are giving the authority a lot of powers to decide to clean up this area of activity and decide who or what bodies should get licences. Any reasonably instructed or competent security authority will recognise an incorporated body that collapses, forms another company and comes back in the door at a later date expecting another licence. It will be able to adequately deal with such cases.

Chairman

There is legislation in place whereby directors of companies who do the wrong thing can be disqualified for some years——

Mr. O’Dea

Yes, under the 1990 Act.

Mr. Costello

What if a separate company is set up and the parent company does not go into liquidation? If it is a sole trader, the new company could be set up under a different name. How can one determine that there is a link between the two? I am not sure that the tax clearance certificate is sufficient in providing the necessary evidence to the authority that something has gone amiss regarding financial status.

We are giving the authority massive powers of inspection of premises, but none to check the financial standing of an applicant. The issue that is closest to the bone is always the financial one and involves following the money trail. If the authority had a mechanism of becoming satisfied with the bona fides of an applicant's financial standing it would go a long way towards ensuring that this part of the service industry would be in good financial order.

Chairman

What level of financial standing does Deputy Costello regard as appropriate?

Mr. Costello

It would be similar to the reference to an applicant's character.

Chairman

Can the Deputy quantify what the applicant should have? Is it €1,000, nothing or a good bank manager?

Mr. Costello

No. The legislation provides that an application to the authority for a licence to provide a security service shall be accompanied by the prescribed fee and such references to the applicant's character, financial position and competence as the authority might require. "References" is the operative word. A bank statement would be fine. The definition is general. It does not state——

Mr. P. McGrath

It must be prescribed by the authority.

Mr. Costello

——that one has to be of a massively high standard. It is not over-prescriptive.

Mr. O’Dea

It is not over-prescriptive but the Deputy will agree that it is very imprecise. We are putting the authority in place to decide on these matters and I have every confidence it will be able to judge each case on its merits, without trying to ascertain whether it should give a licence to somebody who happens to be €1,000 in the red this week or €2,000 in the black next week. I am convinced it will be competent to determine who is eligible for a licence and it is not unreasonable that it should ask for some reference to the applicant's character or competence to do the job in question. This is because some people might look for licences without any experience in the private security industry or with only a passing acquaintance with it.

The reference to a financial position is too imprecise. I note the Taoiseach's recent reference to tax clearance certificates. If the procedure pertaining to these certificates needs to be changed - it may have to be - it will be done. In any case, as the Chairman has said, one will have to have one's tax clearance certificate renewed on a regular basis. If an applicant succeeds in pulling the wool over the authority's eyes initially - I do not expect it to happen - he or she will not go unnoticed for long.

Mr. Costello

Section 21(1) states that an application "shall be in the prescribed form". Section 21(2) lists additional information the authority may seek, but the Minister is deleting the reference to "financial position" in this regard. Therefore, even if there is no imperative in section 21(1), why not include financial status as something that may be requested by the authority under section 21(2), rather than deleting it as well? Then at least, the authority, if it has suspicions or concerns about a particular applicant, would have the power under the legislation to request some reference to his or her financial status.

Mr. P. McGrath

The legislation states that the application to the authority for a licence to provide a security service shall be in the prescribed form. That prescribed form will be designed by the authority. We are merely saying it should be under three headings. The authority shall decide what kind of character reference and competence record one needs to qualify for the licence. Surely, it can also prescribe what kind of financial backup one needs to qualify. It may well decide that this backup is in the form of a tax clearance certificate or it may decide on something else, based on its knowledge of the industry. By including a further reference to a tax clearance certificate, one is confining the authority to this and it will not be able to look for anything else. A broad definition, like that in the legislation as it stands, gives the power to the authority to regulate and choose what backup it requires. It might just involve a letter from the bank manager, for example, but one is leaving the decision to the authority. Let us not take this function away from it.

Mr. O’Dea

I understand Deputies Costello and Paul McGrath to be saying that the application shall be in a prescribed form and shall be accompanied by such references to character and competence as the authority may require. Additionally, they want the authority to be able to seek further information at its own discretion. In other words, they want it to leave the reference to the financial position in section 21(3)(a) and 21(4). I will consider this.

Amendment agreed to.

Chairman

Amendments Nos. 40, 45, 49 and 50 are related and may be discussed together by agreement.

Mr. O’Dea

I move amendment No. 40:

In page 19, subsection (1), line 16, to delete "section 33” and substitute “sections 24 and 33”.

The principal amendment in this group is amendment No. 50, which inserts a new section on tax clearance. Its wording was supplied by the Revenue Commissioners and seeks to apply tax clearance provisions to corporate applicants and partnerships. The intention is to ensure that directors of companies seeking licences are tax-compliant and will combat the practice of companies ceasing to trade being replaced by companies carrying out the same security business but under another name. This provision will also apply to sole traders, but will not apply to employees providing a security service.

The purpose of amendments Nos. 40, 45 and 49 is to incorporate appropriate references to the new tax clearance section in section 21(3), which deals with applications for licences, section 22(1), which deals with the grant or refusal of a licence, and section 23(1), which deals with the renewal of a licence.

Chairman

Where does it say it is for a sole trader?

Mr. O’Dea

It is by exclusion. It specifically excludes somebody who is subject to a contract of employment.

Chairman

What about a sole trader who employs 100 security guards in his business?

Mr. O’Dea

There is a reference to "person".

Chairman

I accept that.

Mr. Costello

The key part of amendment No. 50 relates to section 24(2), which states: "The Authority shall refuse to grant or renew a licence to or in respect of a person in relation to whom a tax clearance certificate is not in force." Will the Minister stop at this point and omit the subsequent subsection that lays down all kinds of conditions regarding timescales during which an appeal can be made? This is nonsense. There should be a simple statement, as there should be in legislation.

Mr. O’Dea

I noticed that Deputies Costello and Paul McGrath were anxious to give the authority as much discretion and power as possible a moment ago. Now Deputy Costello is trying to restrict it and remove its discretion. The provision is a standard one. When we decided on the tax table certificate provision, we consulted the Revenue Commissioners when drafting it. We are acting on their advice that everything in this section pertaining to tax clearance is necessary. I have to adhere to this advice.

Mr. Costello

How long does it take to get a tax clearance certificate? Subsection 3(a) of the new section states:

The Authority may nevertheless grant or renew a licence to or in respect of such a person if-

(a) the person has, at least four months before applying for the grant or renewal, applied for a tax clearance certificate and either-

I was under the impression that one got a tax clearance certificate very quickly. Is the Office of the Revenue Commissioners telling us that one has to wait for months to get it? Why facilitate it by introducing into the legislation a provision that allows its bureaucracy to cause long delays? One could have to wait forever for one's tax clearance certificate because of the new section being inserted. One could have a new company up and running, for some years perhaps, before being required to produce a tax clearance certificate.

Chairman

Consider a reputable retail company with many branches throughout the country that is well known for not paying for services rendered. This could cause a cash problem for a security services provider, in that it might not be able pay its PAYE for four months. The Revenue Commissioners would be fully aware of the situation and would know the amount owed. The tax inspector would have examined the case and would know the identity of the debtor. The parties involved would then come to an arrangement for the repayment. In such a case the company would not get its tax clearance certificate until its accounts were up to date but this would not be the reason for putting it out of business. This section tries to ensure that business continues in Ireland.

Mr. Costello

If we take that into consideration, why should it be applied for both granting and renewal? When trying to obtain a renewal of a licence there may be some grounds for delay in obtaining a tax clearance certificate, but surely one should have one's affairs in order before applying in the first instance.

Mr. O’Dea

I understand what has been said. We have consulted the Revenue Commissioners on the matter and they have made their suggestion, from which I am not prepared to depart.

Chairman

When the authority is set up, it will be granting licences to companies that are already up and running.

Mr. Costello

The Bill has been under consideration for three years.

Mr. O’Dea

If a company seeking a licence does not have a good reason for not having a tax clearance certificate, although it may have applied for one in the previous four months, this would adversely affect its application. It will not all turn on the issue of whether it can produce one or evidence it has applied for one. Any business that is up and running without a tax clearance certificate, but which is trying to obtain a licence on the basis that it has applied for a certificate, will require a good explanation as to why it does not have one.

Chairman

That is a good warning.

Amendment agreed to.

Mr. O’Dea

I move amendment No. 41:

In page 19, subsection (3)(a), line 18, to delete “, financial position”.

Amendment agreed to.

Mr. Costello

I move amendment No. 42:

In page 19, subsection (3)(b), line 22, to delete “affidavit” and substitute “statutory declaration”.

This is a technical amendment. "Statutory declaration" is a more appropriate term than "affidavit".

Mr. O’Dea

The Deputy seeks to delete "affidavit" and substitute "statutory declaration". However, the term used in the Bill is "by affidavit or otherwise" and this wording will permit the authority to verify information by means of an affidavit or a statutory declaration where it considers the latter to be appropriate.

Mr. Costello

"Statutory declaration" is the appropriate term.

Amendment, by leave, withdrawn.

Mr. O’Dea

I move amendment No. 43:

In page 19, subsection (4), lines 28 and 29, to delete ", financial position".

Amendment agreed to.

Mr. O’Dea

I move amendment No. 44:

In page 19, subsection (4), lines 29 and 30, to delete ", financial position".

Amendment agreed to.

Section 21, as amended, agreed to.

SECTION 22.

Mr. O’Dea

I move amendment No. 45:

In page 19, subsection (1), line 35, after "(2)" to insert "and section 24".

Amendment agreed to.

Mr. P. McGrath

I move amendment No. 46:

In page 20, subsection (2)(a), between lines 3 and 4, to insert the following:

"(v) was convicted of a crime and served a term of imprisonment in the previous five years,".

Section 22 deals with those who should be refused a licence. The authority will have the power to refuse a licence to certain categories of people. I am anxious to include in this somebody who was convicted of a crime and served a term of imprisonment in the previous five years. It is appropriate that licences not be issued to such persons. We need to clearly state in the legislation that it will not be discretionary for the authority to grant licences to people who have had such a conviction.

Mr. O’Dea

The Deputy has raised the interesting issue of the eligibility of persons for a licence who have been convicted of serious crimes. The 1997 consultative group report recommended that an application to hold a licence should be refused outright by the proposed authority if the applicant had ever been convicted of a range of listed serious offences. These included murder, rape or sexual assault, armed robbery, drug trafficking or other offences carrying a sentence of more than 10 years' imprisonment. The group recommended a ten year gap before granting a licence to persons convicted of a range of other offences.

The Bill does not incorporate the detailed and prescriptive approach recommended by the consultative group. Instead, it requires the authority to consider each application on its merits. Section 33 provides that an application for a licence, and any licensee seeking renewal of a licence who has been convicted of an offence or against whom proceedings for an offence are pending, to notify the authority of the conviction or proceedings in a prescribed manner. For its part, the authority may, having considered the applicant's character and competence, grant a licence or refuse to do so if it considers that the applicant is not a fit and proper person to provide a security service.

In arriving at its decision to grant or renew, or not to grant or renew a licence, the authority may require verification of information provided by the applicant by affidavit or it may require the applicant to supply a certificate by a member of the Garda Síochána not below the rank of superintendent. Furthermore, the authority may itself request a Garda Commissioner to provide any information required for the due performance of its functions in relation to any application for a licence or any licensee.

The authority will seek to strike the appropriate balance by operating the licensing system in the public interest and the best interests of the private security industry itself, while at the same time recognising an individual's right to earn a living, support himself or herself and to provide for dependants. It is also relevant in this context that the membership of the authority will include a practising barrister or solicitor of not less than five years' standing and a representative of the Garda Síochána not below the rank of assistant Garda Commissioner.

Mr. P. McGrath

The Minister is saying that there is no need for the amendment to specify that those who have served prison sentences in the previous five years be excluded. However, he is leaving the decision entirely at the discretion of the authority. I agree with this to an extent but we have seen, in respect of the granting of licences for taxi plates, for example, that people with fairly recent convictions managed to get plates. Taxi driving, like providing security services, is a responsible job and sometimes involves dealing with the public in very difficult circumstances. We need to send a message to the authority that there are certain categories of people who should not qualify for a licence. One such group includes those convicted of a crime and, who served a sentence therefore, in the previous five years. It is important to prescribe this for the authority and I hope the Minister will consider my amendment for Report Stage if he will not accept it now, especially in light of what happened regarding the granting of taxi licences.

Mr. O’Dea

I can examine the issue, but the taxi situation is different. We are setting up a very strong authority by statute which has a whole raft of powers. This is not the case in the taxi business.

Mr. P. McGrath

The local authorities are statutory bodies too.

Mr. O’Dea

The local authorities have many other things to be doing. We are setting up an authority to deal specifically with the private security sector. I am sure the Deputy can see the point I am making. One could say that somebody who has been convicted of an offence and served a short-term of imprisonment in the past five years would not be a fit person be granted a licence. Generally speaking, all who live in the real world will realise that this is probably the case but the discretion should be left with the authority.

There is much talk about rehabilitation and its value. If somebody makes a mistake, he must pay for it. Is he to be punished continually for it by not even being allowed into the position in which he would be considered for a licence? Such people may apply and while their prison record would probably be held against them, it should not be the one factor that would automatically exclude them, regardless of what type of offence was committed or the duration of the term of imprisonment within the past five years. Rather than adopting a prescriptive approach, it is better to leave it to the discretion of the authority. However, I will consider what Deputy Paul McGrath has said.

Mr. P. McGrath

Let us take it a step further. Consider persons who were convicted for having associations with, or membership of, a paramilitary organisation in the State.

Chairman

Which is now in ceasefire mode.

Mr. P. McGrath

The Chairman should dream on. We would not want to see such persons getting a foothold in the security industry. I am trying to help the authority in order that it will not be pulled or hauled into court by people who will say the legislation did not prescribe that they could not hold a licence and that they are being discriminated against. If we prescribe this in the legislation, it will strengthen the hand of the authority and give it a better opportunity to refuse licences to such persons. We are trying to help it do a better job. That is my motivation.

Mr. O’Dea

I know from where the Deputy is coming. It is no secret that members, or ex-members, of certain organisations have infiltrated the private security industry. It is precisely to deal with this that we are introducing the Bill. I would prefer to deal with it in this way. For example, the Deputy might say people are automatically precluded if they have been convicted of an offence within the past five years but if it happened six years ago, it is okay, they can apply. It would not seem fair to write legislation in that manner.

Mr. P. McGrath

Is there not a clause in legislation that states - the Minister of State knows this better than I do - that after a particular length of time - I have chosen five years because I think that is what it is - a person's record of conviction is wiped out?

Mr. O’Dea

Not in this country. We do not have such a provision.

Mr. Costello

I agree, in principle, with what Deputy Paul McGrath is saying. However, his amendment would not give any indication of the severity of the crime and would only take account of those who had served a sentence during the previous five years. Many young people in their late teens could have got into trouble when they were 15, 16 or 17 years of age, but now that they are 18 or 19 years they could be seeking employment. I would like to see flexibility in this area.

This relates back to what I said about exemptions. Previously, two groups of individuals who could not be involved in the industry were normally mentioned in legislation - Senators and Deputies and debtors and criminals. That provision has been omitted from this legislation. Perhaps, we should look at the proposed amendment and include it under a different format.

Chairman

In regard to this industry, it may be a form of business to which former paramilitaries who have "given up their oul' sins" and are now on a straight line might legitimately be ideally suited because of their training and discipline. I have no doubt that there are former paramilitaries working within the industry whose operations are being carried on and done in a legitimate upfront manner. There is no reason to exclude them in any way.

In regard to Senators and Deputies, I am sure Deputy Costello would be more than welcome to carry on a security service business. If he applied, the authority would probably grant his application.

Mr. P. McGrath

I must take issue with what the Chairman said. When he sees it in print, he may want to come back and amend it or add another statement in that regard. He quoted a phrase in regard to those mentioned - "given up their oul' sins". I will quote another one - aleopard never changes his spots.

Chairman

We will have to disagree.

Mr. P. McGrath

I would not want to put people who have actively participated in the torture of others, robberies, murder and so on, in a position of responsibility. Security positions are ones of responsibility and I would not want to see the people concerned in such positions, under any circumstances. We must be extremely careful in what we say in that regard and must mandate the authority to ensure no section of the security business is taken over by former paramilitaries. That is crucial.

Chairman

The founders of both Fianna Fáil and Fine Gael came from the same cut.

Mr. P. McGrath

We have moved a long way.

Chairman

The Minister will look at the situation. Will the Deputy withdraw his amendment on that basis?

Mr. P. McGrath

I will.

Amendment, by leave, withdrawn.

Mr. Costello

I move amendment No. 47:

In page 20, subsection (2)(b), between lines 11 and 12, to insert the following:

"(iii) that the employees of the body are not employed in a manner which complies with relevant employment legislation,".

The purpose of the amendment is to state "that the employees of the body are not employed in a manner which complies with relevant employment legislation". Therefore, where a licence was granted, we would be anxious to ensure the operation was totally bona fide and that the minimum wage legislation and other conditions of employment would be adhered to. Evidence was presented to us that people involved in the industry worked very long hours, that there was a huge amount of hours worked in overtime, that payments were often in the lower range and sometimes below the minimum wage and that contracts had been tendered for at an impossibly low level, all of which indicated that the industry could not be paying its employees in accordance with social welfare regulations.

I want it recorded that henceforth employees will be treated fairly and that the norm will be 48 hours. As well as this, workers should be entitled to join a trade union. Representatives of the compliant sector of the industry which appeared before the committee indicated that the sector was open to unionisation and was working in tandem with SIPTU on the matter. They indicated that unionisation would become a major feature of the industry, that the operation of the industry would be totally bona fide and that all of its employees would be treated in the same way as employees in any other industry.

Mr. O’Dea

I understand the Deputy's objective. However, I am not convinced that we could for provide mechanisms to achieve the objective he wants to achieve. The difficulty arises from the question of what practical processes he would envisage for ensuring relevant employment legislation would be complied with. For example, I understand it is not a function of the Health and Safety Authority to issue compliance certificates. How then could the Private Security Authority satisfy itself that health and safety legislation was being complied with?

In regard to tax clearance, there is involvement by the Collector General but no equivalent mechanism in regard to compliance with employment legislation. That is the difficulty. What the Deputy is saying in his amendment is that the authority should refuse a licence, if it can be established that the applicant, an employer, is not complying with employment legislation. The real difficulty is how it can determine this. What mechanism is available to it?

Mr. Costello

The section states the authority may grant or refuse a licence. My amendment would not be a prescription as such, but a suggestion of how it should act if had any reason to believe a company was not acting in accordance with employment legislation or did not pay the prescribed fee and so on. I am trying to turn it around and say the industry should insure itself. It should be an expectation of the authority that the industry would not only have its financial affairs in order, but that it would also have its industrial relations affairs in order and abide by all relevant employment legislation on pay and conditions. I do not see the reason it would be regarded as too difficult for it to refuse a licence. This would not impose an undue burden on it. If the Minister wished to rephrase it in some fashion, I would be happy to allow him to do so.

The reason I seek to include the amendment is the degree of material we received which indicated that the industry was operating to a very large extent in the black economy and that employees were not being treated in the normal fashion. Very long hours were being worked and often payments were made under-the-counter. The industry left a lot to be desired. A provision of this nature would strengthen the legislation. It would strengthen what I regard as being necessary in respect of any new industry being regulated - the right of employees to organise in trade unions.

Mr. O’Dea

I disagree with the Deputy when he says it would be a discretionary matter for the authority. Section 22(2) states it "shall refuse to grant a licence" if it is satisfied about a number of matters - that a person is not a fit and proper person or is under the age of 18 years. If I were to accept the amendment, the provision would read, "The authority shall refuse to grant a licence if satisfied that the employees of the body are not employed in a manner which complies with the relevant employment legislation". There would then be an obligation on it to refuse a licence.

No matter how it is phrased, how will one know? How will it be known that somebody has at all times complied with the terms of maternity protection legislation, the Employment Equality Act and the hours of work legislation? There are bodies such as the labour inspectorate and the Health and Safety Authority which are supposed to police all of these aspects. It cannot be the function of the authority to become involved in such details. While I share the Deputy's views in the matter that those not complying with employment legislation should not be given a licence, I question how the authority can establish this fact in an individual case. That is the real difficulty.

Mr. Costello

Does the Minister of State agree that the principle of my proposition is desirable but that he does not see a mechanism whereby it could be managed in the manner in which it is presented? We can work at it if he is prepared to accept the substance and principle of the amendment. We could investigate to see if a provision could be included whereby there would be an expectation, if not a requirement, that the authority would be aware of the need for relevant employment legislation to be adhered to. The office of the parliamentary counsel should not have too much difficulty in incorporating the spirit of my proposal to ensure the industry is above board. If it is not covered adequately elsewhere, we should decide where we need to give status to employees of the industry which would recognise their entitlement to the minimum wage and proper conditions of employment. That is all we are looking for.

Mr. O’Dea

I agree, in principle, with the Deputy. There is much employee protection legislation now, ranging from equality and maternity protection legislation to working time legislation. It is very difficult to know how to find a mechanism to achieve the Deputy's objective. Obviously, if somebody has previous convictions for breaching the terms of employment legislation, this can certainly be taken into account, but I fail to see how the Deputy's laudable objective can be achieved in words. I will examine the proposal which we will take on board if it can be done.

Mr. Costello

The Minister of State could consider it by way of reference to the renewal of licences in order that the authority would not be able to renew a licence if it had reason to believe the employer was not complying with relevant legislation.

Mr. O’Dea

How would it know?

Mr. Costello

If it had reason to believe. It would not be imposing a burden on the authority to carry out an investigation. Inspectors may enter a premises at all times to check the books. The baby should not be thrown out with the bath water.

Mr. O’Dea

With due respect, other authorities have inspectors employed to do that job. The inspectors employed by the authority can hardly be expected to be inspectors for the purposes of labour law, maternity protection and health and safety legislation, for instance. It would not be appropriate for them to investigate such matters in detail.

We will investigate what should happen, where on renewal of a licence it comes to the attention of the authority that for some reason there has been a breach. I will give the Deputy a practical example. If somebody is given a licence to operate a private security company and during the year he or she does something contrary to labour law such as breach the terms of employment law in relation to an employee, when the licence comes up for renewal, the person concerned will be in a position to inform the authority. If he or she has ceased to be employed, I am sure he or she will be only too glad to inform the authority. We may be able to include a provision, whereby, if it comes to the attention of the authority, it will be taken into account in the renewal of the licence.

Mr. P. McGrath

The nub of Deputy Costello's proposal is that if the authority discovers that a company is in breach of regulations, be it that it has taken on foreign workers or is paying below the minimum wage, there would be a provision in place for the refusal of a licence on those grounds.

Mr. O’Dea

The authority must at all times consider whether the applicant is a fit and proper person to hold a licence. Would a person engaged in such activities be a fit and proper person to hold a licence? The matter seems to be covered.

Chairman

There is agreement, in principle, that the employee legislation should be examined when action is being taken.

Mr. O’Dea

I will examine the matter, even though I am not convinced.

Chairman

Will the Minister of State look at it?

Mr. O’Dea

Nothing has convinced me that we will find an adequate way to do this. We simply do not know how the authority would find out. We might consider including something where it comes to the attention of the authority, but that situation is already covered by the "fit and proper person" provision.

Chairman

I am sure Deputy Costello will come up with something on Report Stage.

Mr. Costello

Yes. I will look at the matter before Report Stage.

Amendment, by leave, withdrawn.

Section 22, as amended, agreed to.

NEW SECTION.

Chairman

Amendment No. 48 was discussed with amendment No. 17. Is Deputy McGrath withdrawing his amendment?

Mr. P. McGrath

No.

Chairman

Did the Deputy not withdraw the last one?

Mr. P. McGrath

No. I am pressing the amendment.

I move amendment No. 48:

In page 20, before section 23, to insert the following new section:

"23.-A licensee shall not engage or employ in an operational capacity any person who is-

(a) a member of An Garda Síochána, or

(b) a member of the Defence Forces.”.

The Minister of State was not present. It is very important that members of the Garda Síochána and the Defence Forces are not allowed to be employed as door persons.

Chairman

This matter has been discussed.

Mr. O’Dea

My understanding is that the Minister has undertaken to deal with it in the Garda Síochána Bill.

Mr. P. McGrath

This is a belt and braces provision to make sure it would be covered.

Amendment put and declared lost.

SECTION 23.

Chairman

Amendment No. 49 has been discussed with amendment No. 40.

Mr. O’Dea

I move amendment No. 49:

In page 20, subsection (1), line 25, to delete "section 24” and substitute “sections 24 and 25”.

Amendment agreed to.

Section 23, as amended, agreed to.

NEW SECTION.

Chairman

Amendment No. 50 has been discussed with amendment No. 40.

Mr. O’Dea

I move amendment No. 50:

In page 20, before section 24, to insert the following new section:

"24.-(1) In this section-

'Act of 1997' means the Taxes Consolidation Act 1997;

'Collector-General' means the Collector-General appointed under section 851 of the Act of 1997;

'person' does not include an individual who provides a security service in the course of an employment but includes-

(a) in the case of a body corporate, the directors, and

(b) in the case of a partnership, the partners;

'tax clearance certificate' means a certificate under section 1095 (as substituted by section 127(b) of the Finance Act 2002) of the Act of 1997.

(2) The Authority shall refuse to grant or renew a licence to or in respect of a person in relation to whom a tax clearance certificate is not in force.

(3) The Authority may nevertheless grant or renew a licence to or in respect of such a person if-

(a) the person has, at least four months before applying for the grant or renewal, applied for a tax clearance certificate and either-

(i) that application has not been determined, or

(ii) it has been refused and an appeal against the refusal has been made under section 1094(7) of the Act of 1997 but not determined,

and

(b) the Authority would, but for subsection (2), have granted or renewed the licence.

(4) The Authority shall notify the Collector-General of the issue of a licence granted or renewed under subsection (3).

(5) Such a licence shall expire-

(a) if the application for a tax clearance certificate is granted or is granted on appeal, on the day on which it would expire if the certificate had been inforce when the licence was granted or renewed,

(b) if the application is refused and-

(i) an appeal against the refusal under the said section 1094(7) is not made within the period of 30 days after the refusal, on the expiration of that period, or

(ii) such an appeal is so made but is not successful, 7 days after the appeal has been determined or finally determined.

(6) The Collector-General shall notify the Authority of the determination of any such application for a tax clearance certificate, of any appeal against a refusal of such an application and of the final determination of any such appeal.

(7) The reference in subsection (3)(a)(ii) to section 1094(7) is to that provision as applied by subsection (6) of section 1095 (as substituted by section 127(b) of the Finance Act 2002) of the Act of 1997.”.

Amendment agreed to.

SECTION 24.

Question proposed: "That section 24 stand part of the Bill."

Mr. Costello

I am intrigued by the last action that may be taken under this section where it is stated in subsection (2)(a) that, if the authority is satisfied on reasonable grounds that the licensee has been guilty of misconduct in the course of providing a security service, it can revoke or suspend the licence, issue a reprimand, warning, caution or advice. Surely the provision of “advice” is provided for in the other actions? A caution or warning involves advice, as does a reprimand but in a stronger fashion. If one’s licence is revoked, one is advised of what went wrong. Will the Minister of State explain what is envisaged in using the word “advice”? Where one has been guilty of misconduct, does it mean a nice little chat over a cup of tea?

Mr. O’Dea

It is to make the legislation comprehensive to cover as many situations as possible. It envisages a situation where there will not necessarily be any culpability on the part of the licensee who will have been doing something wrong quite innocently. In that case all that might be required is a little bit of friendly advice to steer him or her in the right direction. It would not have the status of a caution or a warning because people are only warned or cautioned when they are doing something wrong and there is an element of deliberation. This probably covers a situation where somebody is innocently doing something wrong.

Mr. Costello

The Minister of State should pull the other one. Subsection (2) reads:

if the Authority is satisfied on reasonable grounds that the licensee-

(a) has been guilty of misconduct. . .

That is not very innocent.

Mr. O’Dea

Or has contravened any provision of the Bill or regulations thereunder. Guilty of misconduct does not amount to innocence.

Mr. Costello

What about contravention?

Mr. O’Dea

Contravention can happen innocently. One can innocently contravene one of the minor provisions of the Bill, or at least that is what is envisaged.

Mr. P. McGrath

Tea and scones.

Mr. Costello

This legislation is breaking new ground all over the place.

Mr. P. McGrath

The final part of section 24 reads:

A person whose licence has been suspended or revoked shall comply with any directions of the Authority in relation to delivering up to it the person's licence and identity card.

The word "shall" is used. How enforceable is this if somebody has lost his or her licence? Is it likely that the authority will be able to get back the person's identity card? Does this provision not place an impossible burden on the authority? I can foresee great difficulties if a person has lost his or her licence, as his or her identity card could well be in the bin or the fire.

Chairman

In that case the authority would probably not direct him or her to do so.

Mr. O’Dea

It is not a criminal offence. The only sanction is that if he or she ever wants to return to the business, it will count very heavily against him or her.

Question put and agreed to.

SECTION 25.

Chairman

Amendments Nos. 51 and 68 are cognate and may be discussed together.

Mr. O’Dea

I move amendment No. 51:

In page 21, subsection (3), line 44, to delete "prescribed".

Since the period of one month during which an appeal may be lodged is specified elsewhere in the Bill, there is no need for the reference to a prescribed period in either section 25 or section 36.

Amendment agreed to.

Section 25, as amended, agreed to.

Section 26 agreed to.

NEW SECTION.

Chairman

Amendments Nos. 52 and 53 are related and may be discussed together.

Mr. O’Dea

I move amendment No. 52:

In page 22, before section 27, to insert the following new section:

"27.-(1) The Authority shall issue an identity card to each individual who is a licensee.

(2) Each such individual-

(a) shall have the identity card in his or her possession when providing the security service authorised by the licence, and

(b) shall, on request, produce it there and then for inspection by any person for whom the licensee is providing a security service under the licence and shall permit such a person to inspect it.

(3) (a) A member of the Garda Síochána may require an individual who in the member’s opinion is providing a security service to produce there and then for inspection by the member an identity card issued to the individual in connection with the grant of a licence authorising the provision of the service.

(b) Where the individual does not produce the identity card there and then, the member of the Garda Síochána may require the individual, within 10 days after the date of the requirement, to produce the identity card in person to a member of the Garda Síochána at a Garda Síochána station to be named by the individual at the time of the requirement or otherwise specified by the member at that time.

(4) An individual who produces an identity card in accordance with subsection (3)(a) shall permit the person to whom it is produced to inspect it.

(5) Where an individual does not comply with subsection (3)(a) or (4), the member of the Garda Síochána concerned may require the individual to give his or her name and address.

(6) The powers conferred on a member of the Garda Síochána by subsections (3) and (5) may also be exercised by an inspector.

(7) A member of the Garda Síochána may arrest without warrant-

(a) an individual who does not permit the person to whom an identity card is produced under subsection (3)(a) to inspect it, or

(b) an individual who-

(i) does not give his or her name and address when required by a person under subsection (5) to do so, or

(ii) gives a name or address which that person reasonably believes to be false.

(8) An individual shall not possess an identity card issued to another individual.

(9) An individual who-

(a) contravenes subsection (2)(a), (4) or (8), or

(b) does not comply with a request under subsection (2)(b) or a requirement under subsection (3) or (5),

is guilty of an offence and liable on summary conviction to a fine not exceeding €2,000.

(10) It is a defence in proceedings for an offence under this section for the defendant to prove that he or she had a reasonable excuse for not complying with the subsection concerned.

(11) In any proceedings a certificate-

(a) purporting to be signed by the member in charge of the Garda Síochána station at which the person concerned was required, pursuant to subsection (3)(b), to produce his or her identity card, and

(b) stating that the person did or did not, within 10 days after the day on which the production of the identity card was required, produce it in accordance with that subsection,

is admissible, without further proof, as evidence of the matters mentioned in the certificate.".

During the discussion on Second Stage, questions were asked about the procedures to be followed on the production of identity cards by licensees. Having reflected on the points made, I am proposing to replace section 27 with the more detailed and comprehensive provisions set out in this amendment.

Subsection (1) provides that the authority shall issue an identity card to each individual who is a licensee. Subsection (2) requires each licensed individual to carry the card when providing the security service and produce it for inspection when required to the person for whom the security service is being provided. Subsection (3) permits a garda to demand production of an identity card and, where it is not produced, the garda may require the individual to produce it within ten days at a Garda station named by the individual. Where an individual does not produce an identity card to a member of the Garda Síochána, he or she is required to give his or her name and address. These powers may also be exercised by an inspector of the authority. Subsection (7) provides for a power of arrest in circumstances where obstruction is encountered and co-operation is not forthcoming. Obviously, this power is not available to the authority's inspectors.

Mr. P. McGrath

As the Minister of State outlined, having an identity card is important. As provided for in my amendment, it is also important that there should be some form of identity affixed to a person's clothing. For instance, if one goes to Copperface Jack's and there are three or four big burly guys in black clothes, possibly wearing dark glasses, one should be able to identify one from the other. In that regard, there should be some form of identity worn. This matter has been discussed on an earlier Stage of the Bill. In this regard, the Minister accepted that there was a need for some form of identification and was to come back to the matter on a later Stage. My point is that if a person has a row with a line of three or four guys and he or she believes they acted improperly, there should be a way of identifying who it was who had caused the problem.

There should be a numbering system or some form of identity. We discussed the question of whether a company should have a logo rather than a number such as 28,642, which would be difficult to memorise. Company No. 15, employee No. 20, or company A or company B may be preferable. This should be clearly visible on clothing and would be preferable to an identity card. If one falls out with one of the lads at the door and one asks to see his identity card, one is likely to see it but I do not think one is likely to receive satisfaction. One would have to return with a member of the Garda Síochána. Such a numbering system would allow for a complaint to be made without further difficulties being created.

Mr. Costello

For the sake of clarity, amendment No. 54 should be considered with these two amendments. The Minister had agreed to expand on the point raised by Deputy McGrath and has done so in amendment No. 54, which provides for an identity badge to be worn which will carry the licence number and will be clearly visible when worn. I presume it will be affixed to clothing. The Minister has provided for much of what we were seeking in amendment No. 54.

Chairman

If members agree, the committee can discuss amendment No. 54 also.

Mr. O’Dea

As I understand it, that amendment was discussed last week with amendment No. 7 which provided that a new section 28——

Chairman

Yes, I apologise. It has been discussed but it may be brought into the equation now.

Mr. Costello

Is it not the case that we had a general discussion?

Chairman

The amendment was discussed with amendment No. 7.

Mr. P. McGrath

The concept of what I am talking about is covered.

Mr. Costello

The Minister has taken the long way.

Chairman

It may be discussed with these two amendments.

Mr. Costello

It is envisaged that each person such as a door supervisor will wear a badge which will carry the licence number and, presumably, the logo or identification of the company. It will also be visible on the person's clothing. It will be the equivalent of the number badge worn by gardaí, which is clearly identifiable.

Mr. P. McGrath

The numbering system should be akin to that used by the Garda Síochána, rather than the badges used by shop employees which just carry the person's name. Unless one has excellent eyesight, it is often difficult to read what is written on them. Foreign companies registered outside the State should be easily identifiable and it would be better not to depend on the use of names as foreign names are often difficult to identify. A lettering and numbering system would be preferable.

Mr. Costello

The company logo should also be visible.

I wish to make a comment on amendmentNo. 52. Subsection (3)(b) makes provision for the Garda Síochána to request the production of an identity card and for the person in possession of the card to produce it within ten days. This provision should be deleted from the amendment. If somebody is on duty working as a security person, he or she should be in possession of his or her identity card. Drivers must carry their driving licence when driving. The badge should be visible. The licence should also be carried, rather than give latitude to produce it within ten days. I do not see the advantage in this. It should be produced on demand to a garda.

Mr. O’Dea

With reference to the identity badge, the new section proposed in amendment No. 54 states in subsection (5) that it is obligatory for the badge to be clearly visible. It states the form, content and size is to be prescribed by the authority, to which we will convey the views of the committee in that regard.

We may have fallen behind. The previous provision in road traffic legislation was that a driver could produce his or her licence. I am not sure what happens if a driver does not have an insurance certificate or motor tax disc displayed. I am informed that there is no option, that they must be displayed. I take the Deputy's point. I notice that there is a defence in the new section which states:

It is a defence in proceedings for an offence under this section for the defendant to prove that he or she had a reasonable excuse for not complying with the subsection concerned.

We will revisit this provision in a sympathetic fashion.

Amendment agreed to.

Amendment No. 53 not moved.

Section 27 deleted.

NEW SECTION.

Mr. O’Dea

I move amendment No. 54:

In page 22, before section 28, to insert the following new section:

"28.-(1) An individual who is a member of a prescribed category of licensees shall, when providing a security service, wear an identity badge.

(2) An individual shall not possess an identity badge issued to another individual.

(3) An individual who contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding €2,000.

(4) It is a defence in proceedings for an offence under this section for the defendant to prove that he or she had a reasonable excuse for not complying with the subsection concerned.

(5) In this section-

'identity badge' means a badge-

(a) which clearly indicates the licence number of the licensee concerned,

(b) whose form, content and size are as prescribed for identity badges issued to members of the prescribed category of licensees concerned, and

(c) which, when worn, is clearly visible;

'prescribed category' means a category prescribed for the purposes of this section.".

Amendment agreed to.

Sections 28 and 29 agreed to.

SECTION 30.

Mr. Costello

I move amendment No. 55:

In page 23, subsection (3), line 19, after "be" to insert "published on the Internet and".

Section 30(3) states the register shall be kept at the office of the authority and be made available for inspection. My amendment proposes that it should also be published on the Internet to ensure maximum accessibility and keep up with the times.

Mr. O’Dea

While I do not oppose the principle involved in the Deputy's amendment, it is unnecessary because the Electronic Commerce Act 2000 provides that where a public body is required or permitted to give information in writing, it may give the information in electronic form. In other words, the authority has the right under that Act to publish information on the Internet, if it sees fit. In this context, the safety of private security personnel and their families must be taken into account in making the register available. While it would be entirely reasonable to have the names and addresses of licensed security equipment companies on a website, the publication of the addresses of security guards, some of whom are involved in the transportation of valuable consignments, could put at risk their safety and that of their family members. It would, therefore, be best left to the judgment of the authority. I am aware of various cases. A nightclub supervisor in my constituency was shot dead at his home. Granted the register will be held in a particular office, but if people come to it to check the register, there will at least be some record of their visit whereas if the information is published on the Internet, it will be open to all and sundry.

Mr. Costello

Does the Minister of State mean the names of all employees, as well as firms, will be included in the register? I foresee every licensed employee being included. Firms would like to be on the website because they are looking for business and their names will be in the Yellow Pages, for instance. A distinction should be made in this respect.

Chairman

It is a register of licensees only, not employees.

Mr. O’Dea

A person employed by a security company as a doorman will require a licence when acting in that capacity.

Mr. Costello

The individual will need a licence.

Chairman

I thought the company was the licensee.

Mr. O’Dea

We should leave it to the judgment of the authority. Obviously, the Deputy is right in what he says about firms. They will be in the business of wanting to get on the website and I am sure will say this to the authority. Section 30(7) states: "The Authority shall, when and as often as the Register is published, cause a copy of it to be furnished to every Garda station as soon as may be, and the copy shall be available for inspection at those stations by any person during normal business hours". This means it will be available in each Garda station.

Amendment, by leave, withdrawn.

Question proposed: "That section 30 stand part of the Bill."

Mr. Costello

Section 30(6) states: "The Authority shall cause the Register to be printed and published within one month after the establishment of the Register and annually thereafter". At what stage will it be determined that the register has been established which I presume means compiled? There may be 20,000 people involved in the industry. At what stage does the authority stop and decide it has a register it can publish? From that point onwards, it will be published annually. No cut-off point is specified in the legislation. People will continue to apply and it could be some years before the authority gets around to dealing with all of the licensees, given that they will not all appear at the same time. It will take a long time for all of them to come forward. When will the first register appear after which there will be an annual register?

Mr. O’Dea

Unfortunately, I cannot speak for the authority in this regard. We can provide in legislation, as we have done, that the register is to be published within a certain period after it has been compiled. For many reasons, we cannot include a timescale for its compilation. The authority has a certain degree of flexibility in this regard. For example, it can compile the register by category. As I understand it, if it establishes a certain category, it can then publish the names included in that category, in which case it might be a gradual process. We do not envisage the authority will compile one big register, which would take some time as the Deputy said. It will probably compile it in blocks and publish each one as it is compiled.

Mr. Costello

Will it cover the defraying of the cost of the register? Will this be a charge on the Exchequer? This raises the question of the self-financing authority and legislation. The authority will have to wait for the money to come in and the register may not be its first priority.

Mr. O’Dea

I have every confidence in it.

Chairman

I am sure the Minister for Finance will be very generous.

Question put and agreed to.

Section 31 agreed to.

Chairman

I thank the Minister of State and his officials for attending today's meeting. As the Bill has not been concluded, I suggest we resume next Wednesday at 4.30 p.m.

Mr. Costello

At which point we can try to complete it.

Progress reported; Committee to sit again.

The select committee adjourned at 6.05 p.m. until 4.30 p.m. on Wednesday, 22 October 2003.