Vol. 1 No. 24
I welcome back to this meeting the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, and his officials, for the purpose of resuming consideration of Committee Stage of the Private Security Services Bill 2001. We are resuming on section 32 and we have before us amendmentNo. 56.
NEW SECTION.
I move amendment No. 56:
In page 24, before section 32, to insert the following new section:
32.- Section 27 shall have effect in relation to possessing a licence or producing it for inspection as it does in relation to possessing or so producing an identity card, with the modification that, where the licensee is a company, it shall be sufficient compliance with subsections (2)(b) and (3)(a), as so applied, of that section if the licence-
(a) is kept in the company’s registered office,
(b) is displayed in a conspicuous place there, and
(c) is available for inspection on request by a member of the Garda Síochána, an inspector or any person for whom the licensee is providing a security service, and with any other necessary modifications.”.
The aim of this amendment is to apply the detailed provisions set out in the revised text of section 27 which deals with possession and production of identity cards and possession of a licence and producing it for inspection. For this purpose the amendment replaces the existing text of section 32 with a new text. Specific provision is made for dealing with a situation where the licensee is a body corporate.
There are no penalties if the licence is not produced by a body corporate, whereas there are all sorts of penalties if it is not produced by a person. Where a company does not produce it, will the company be subject to penalties as a result of this amendment? A person who does not produce the licence can go to jail and be fined €1,500.
I did not hear the Deputy properly.
There seems to be no penalty attached to the non-production of a licence where the licensee is a company. The amendment relates to the licensee as a company and it outlines where the licence is to be produced, but failing to have that on display in those appropriate places does not involve the licence holder paying a penalty. However, if the licensee were a person who fails to produce the licence on request, the licensee is subject to a penalty.
If the Deputy looks at the new section 32, he will see that it says that section 27 shall have effect. Section 27 deals with the issue of producing one's identity. The offences are set out there. Subsection (9) refers only to an individual, but in the context of a company, an individual will be one or any of the directors of the company.
I move amendment No. 57:
In page 24, subsection (1), line 19, to delete "or" and substitute "a licensee, or an employee of".
This amendment is necessary to ensure that the employees of a licensee are subject to the same rigours as the licensee. Employees should not have criminal records and be able to take up positions in the industry within the prescribed period because of the sensitivity of the job involved.
The notification requirement of section 33 applies to both applicants for licences and licensees. This means that employees who require a licence, for example, a security guard employed by a security company, must also notify offences. Other employees such as secretarial staff, for example, receptionists who do not require a licence because they do not provide a security service, are not covered by the notification requirement.
The proposed amendment would require those staff who do not provide a security service to notify offences and I can see no justification for extending the notification requirements to them. The requirements apply only to people who are employed at the front line, people who are involved in the provision of a security service. Even if they are the employees of a security company, they too must apply for licences, but people in the background such as secretarial and administrative staff do not require a licence because they are not providing the security service.
Is the Minister leaving it reasonably open so that people about whom we talked at the last meeting, people who may have had associations with paramilitary organisations and who may have had convictions, would be in a strong position to take up those jobs as employees rather than licence holders, so that they might be the background people operating the service with others who are licensees? It is an effort to squeeze them out entirely.
I understand where Deputy McGrath is coming from. The answer is no, I do not think so. In our experience these people will be providing a front-line service. Alternatively, if a body corporate or even a sole trader is involved, these people will be part of the management. They will be directors or shadow directors. What we are trying to do is exempt people in the most menial jobs, not simply secretaries, but people who might be employed to do office cleaning or whatever, from having to notify details about criminal records.
I move amendment No. 58:
In page 24, subsection (1), line 20, to delete ", or against whom proceedings for" and substitute "(other than a prescribed offence), or against whom proceedings for such".
Section 33 contains detailed provisions relating to the notification of offences by applicants for licences and licensees alike. No distinction is made between minor offences and those of a more serious nature. The purpose of this amendment is to permit the authority to prescribe offences in respect of which notification requirements will not apply. It is intended that the authority shall exercise this power by means of regulation, subject to the consent of the Minister for Justice, Equality and Law Reform.
I move amendment No. 59:
In page 24, subsection (1), line 21, after "or" to insert ", subject to subsection (4),”.
I am not convinced that Deputy Costello's amendment is well founded. Subsection (1) is already clear in relation to the notification requirement. I do not see what the amendment adds to it.
Subsection (4) indicates that the person should not be convicted of an offence if that offence does not correspond with an offence under the law of the State. Yet it could be an offence in relation to the law of the country if it is a European Union country or an accession country, and that offence will not be subject to any provisions in this country. If what is involved is an offence in the State, the person is liable to a fine of €1,500 or 12 months in prison. If it is a non-corresponding offence, it is still an offence. It seems strange that one can contravene the section but not create an offence. Subsection (4) does not create an offence. There may very well be circumstances where an offence could exist in another country that might not correspond to any offence that is on the Statute Book in this country. That could be relevant to the matter. There seems to be an anomaly concerning the two.
I understand the point made by Deputy Costello. My understanding is that there is a notification requirement in the section. What must be notified is conviction of an offence against the law of this State or another country, or proceedings in respect of that. Non-notification is the offence. If notification does not take place, one can be prosecuted and will be convicted if the offence happens to be an offence against the law of this country. On the other hand, if one does not notify and one can establish in court that it is an offence against the law of another country for which there is no corresponding offence in this country, that will be a defence. One is still required to notify, but that will be a defence.
Subsection (4) is not subject to subsection (3), which imposes a penalty. The penalty is in relation to an offence that is an offence in the State, or a corresponding offence in another state, but if it is a non-corresponding offence, if it does not correspond with any offence in the State, it is not an offence. Effectively, that is what the Minister, Deputy O'Dea, has said.
There is an overall requirement to notify in respect of an offence.
The Government has already imposed a severe penalty of 12 months for an offence. If one can somehow create an offence that does not correspond to an offence in the State, one gets off scot-free.
Provided you——
Why not delete that section, or the non-corresponding offence section?
I do not see why, for example, if proceedings had been taken against someone for drinking alcohol in Saudi Arabia, they should be deprived of a licence, or that they should be convicted for not notifying that fact.
Why not impose the penalty? Chopping somebody's hand off is a serious matter.
All the section is stating is that one is obliged to notify, but if someone is prosecuted for non-notification and can establish that the offence does not correspond in this State, that is a defence, the person will not be convicted and the question of a fine or imprisonment will not arise.
Irrespective of the nature of the offence, as long as it does not correspond to any existing offence.
Yes.
We do not have an offence of cutting somebody's arm off for stealing something in Saudi Arabia. In any case, Saudi Arabia does not count because we are in the European Union.
It is a punishment.
Islamic law does not apply here.
Not even in Limerick.
Amendment No. 60 has been discussed with amendment No. 32.
I move amendment No. 60:
In page 24, subsection (3), line 29, to delete "£1,500" and substitute "€3,000".
I move amendment No. 61:
In page 24, subsection (1), line 40, to delete ", by advertisement or otherwise, as available to provide" and substitute the following:
"by-
(a) advertisement,
(b) displaying any shield, card or other object purporting to indicate that he or she is a licensee, or
(c) otherwise,
as available to provide".
Section 34 prohibits a person from providing a security service or representing himself or herself as available to provide such a service if that person does not hold a licence to provide the service. This amendment extends the scope of section 34 by inserting explicit prohibition on displaying any shield, card or other object purporting to indicate that a person who does not possess a licence is a licensee. It makes matters more explicit.
I move amendment No. 62:
In page 24, subsection (1), line 42, before "service" to insert "particular".
This amendment contains a minor drafting change.
Amendment No. 63 has been discussed with amendment No. 32.
I move amendment No. 63:
In page 25, subsection (3)(a), line 1, to delete “£1,500” and substitute “€3,000”.
I move amendment No. 64:
In page 25, lines 6 to 8, to delete subsection (1) and substitute the following:
"35.-(1) A person shall not employ a person, or engage an independent contractor, to provide a security service if that person or the contractor is required to, but does not, hold a licence to provide the service.".
Section 35 prohibits the employment of a person to provide a security service if that person is required to, but does not hold a licence to provide that service. This amendment makes it clear that this prohibition applies not only to employing a person to provide a securityservice but also to engaging an independent contractor to do so. This amendment will ensure a more consistent application of the provision.
Amendment No. 65 has been discussed with amendment No. 32.
I move amendment No. 65:
In page 25, subsection (2)(a), line 10, to delete “£1,500” and substitute “€3,000”.
I move amendment No. 66:
In page 25, lines 17 to 19, to delete subsection (1) and substitute the following:
"36.-(1) Any person may make a complaint in writing to the Authority against a licensee in relation to the conduct of the licensee in the course of providing a security service, including an alleged contravention by the licensee of any provision of this Act or regulations made thereunder.".
Section 36 makes provision for the investigation of complaints against licensees. This amendment makes it clear that the subject matter of the complaint must relate to the conduct of the licensee in the course of providing a security service, including any alleged contravention by the licensee of the Act, or regulations made by the Authority. This means, for example, that the Authority will not be responsible for investigating complaints relating to pricing or the costs of providing security services. It goes without saying that assaults or similar offences should continue to be reported to the Garda Síochána
I move amendment No. 67:
In page 25, subsection (2), lines 20 to 22, to delete all words from and including "that" in line 20 down to and including "and" where it firstly occurs in line 22.
I wish to delete the section that used the caveat the complainant must have a personal interest in the subject matter. Why should a complainant necessarily have to have a personal interest in the matter? Surely, a complaint, if it is valid, should not depend on a personal interest. If there is some breach, the breach is valid whether the complainant has a personal interest in the outcome, or in the matter, as long as it is made in good faith and is frivolous or vexatious. Surely, those are the grounds that we ought to look at.
Regarding the appeals section, there is no reference to a personal interest. The original complaint requires a personal interest before it is valid, yet if someone appeals it, they do not need to justify it through a personal interest. It seems it would be better if we could delete that clause.
I see where Deputy Costello is coming from on this matter. The envisaged authority is a small organisation with fairly finite resources. We are trying to focus the activities of the authority so that it will be in a position to investigate genuine complaints, so that it will not be compelled to investigate extraneous matters. I take on board what Deputy Costello says concerning whether there is a need to include a reference to a personal interest, once the complaint is bona fide. It is something we will consider on Report Stage.
The complainant could be someone who goes up and down by nightclubs in Leeson street just looking out for such matters. The injured party might not want to make a complaint.
I think that Deputy Costello's point is that this issue is covered by the bona fide requirement.
As regards "vexatious" and "frivolous", which were part of the wording, the Minister, Deputy O'Dea, is saying that the complaint has to be made in good faith and is not frivolous or vexatious. As long as they are covered, why should someone be forbidden from making a complaint unless one has a personal interest in the matter?
One would need to be sure that one would have the authority of the person who is the injured party because some people may not want to have their name up in lights as part of a complaint.
It might be a friend or neighbour, somebody else who would do so for various reasons. A person might feel that it would be more desirable, in the circumstances, that he or she would not be personally identified with the complaint.
I move amendment No. 68:
In page 26, subsection (4), line 4, to delete "prescribed".
I move amendment No. 69:
In page 26, before section 39, to insert the following new section:
"PART 6
Security Services provided by Certain Persons from EU Member States
39.-In this Part-
'corresponding authority' means an authority in a member state of the European Communities which-
(a) has functions that substantially correspond to those of the Authority, and
(b) is designated by the Authority as such an authority;
'relevant person' means a person who or which-
(a) holds from a corresponding authority a licence or other form of authorisation that is in force and that authorises the person to provide a security service that corresponds to a security service provided by one of the persons mentioned in the definition of ’security service’ in section 2(1),
(b) is providing that security service in the State, and
(c) is not prohibited by the Authority from providing such a security service.”.
I move amendment No. 70:
In page 26, before section 39, to insert the following new section:
"40.-For the purposes of controlling and supervising relevant persons in the interests of the protection of the public and investigating and adjudicating on any complaints against them this Act shall have effect in relation to such persons with the modifications specified in Schedule 3 and with any other necessary modifications.”.
I move amendment No. 71:
In page 26, before section 39, to insert the following new section:
"41.-(1) The Authority shall notify the corresponding authority concerned of-
(a) any action taken by the Authority under section 24(2) or 36 in relation to a relevant person,
(b) the taking of any appeal by such a person and the result of any such an appeal or any subsequent proceedings, and
(c) any offence under this Act committed by a relevant person.
(2) The Authority shall collaborate with and assist corresponding authorities with a view to promoting the effective performance by the Authority and those authorities of their functions in relation to relevant persons.
(3) The Authority shall publish in Iris Oifigiúil a list of corresponding authorities designated for the time being by it.”.
I move amendment No. 72:
In page 26, before section 39, to insert the following new section:
"42.-If a licence or other form of authorisation issued by a corresponding authority to a relevant person is revoked or suspended by it-
(a) this Part and Schedule 3 shall cease to have effect in relation to that person, and
(b) the relevant person shall be treated as a person who is not the holder of a licence, with effect from the date of revocation or during the period of suspension.”.
I move amendment No. 73:
In page 26, subsection (1)(a), line 37, before “makes” to insert “intentionally”.
This refers to any application or notice of appeal where somebody makes a false or misleading statement. What I am suggesting in this amendment is that the word "intentionally" be introduced, or that the wording read "knowingly makes false or misleading statements". There is no reason to penalise someone if there is no intention or knowledge that the statement was made in a false or misleading fashion. The legislation would be improved if we inserted either the word "intentionally" or "knowingly" before section 39(1)(a).
I am not in favour of inserting the word "intentionally." It would only serve to weaken an important provision of the Bill. The onus must be on the applicants to ensure that the information given in any application or notice of appeal is accurate and true. I cannot accept the amendment.
There is a very hefty penalty of 12 months imprisonment in this case. A misleading statement can be made in error. It is not just described as a false statement, it is also a misleading statement in the case of the application. One is subject to 12 months imprisonment for making such a statement. It seems a swingeing penalty where there might not be substantially an intention to mislead or make a false statement. It does not seem to be proportionate to the mistake that is made, if it is a mistake. It is described as a false or misleading statement in the application. It could be made in error, unknowingly or unintentionally. That is not included anywhere in the provision that is presented here. Nevertheless, if one is found guilty, one is liable on summary conviction to a fine not exceeding €1,500 or a term of imprisonment of 12 months.
Would the case not have to go to court and be heard by a judge? Is there not freedom to exercise discretion on the size of the fine and whether there should be a prison sentence? The judge would have total discretion in the matter. I agree with the Minister in this case. We have to put the onus on the applicant and must not water this down. Let us face the fact that if we as public representatives start watering this down and people look at it carefully, they will say they have heard the same excuses in their own businesses. We should stick with what is there. We do not need to water it down as it will go before an independent judge who will decide on the case that is made. I am inclined to agree with the Minister on this point.
I agree with Deputy McGrath. If one was required to prove direct intention, it is a very high onus of proof indeed. I agree that these penalties of 12 months imprisonment or a fine are not mandatory penalties, they are maximum amounts that can be imposed on conviction. If a person comes into court and proves his or her failure to act in the proper way was perfectly innocent and can establish a good explanation, I do not think any judge in the country would impose the maximum penalty for an innocent mistake.
I hope that it will be a matter of information supplied by the authority or the appeal board and will not end up in court.
I move amendment No. 74:
In page 27, subsection (1), line 5, to delete "£1,500" and substitute "€3,000".
I move amendment No. 75:
In page 28, subsection (2), lines 1 to 3, to delete paragraph (d) and substitute the following:
"(d) the standards to be observed in the provision of security services by licensees or particular categories of licensees,
(e) the qualifications for licences,”.
Section 40 provides for the making of regulations by the Minister and the authority. This amendment is intended to bring the content of subsection (2) into line with the revised functions of the authority in section 8, which we have already discussed.
Amendments Nos. 76 and 77 are related and may be discussed together.
I move amendment No. 76:
In page 28, subsection (2), between lines 21 and 22, to insert the following:
"(d) who is co-operating with the Authority in the processing of his or her application, and”.
The intention of the amendment is to prevent somebody in bad faith delaying the whole process by not co-operating with the authority in the matter of his or her application, not providing the information in the hope of delaying the process and retaining his or her status for the time being. This is to ensure there is full co-operation and if the person is not co-operating it is his or her own bad luck. We cannot have people deliberately delaying the whole process for their own gain.
This timeframe in paragraph (a), where the person has not been notified that the authority has decided to refuse to grant the licence, can be addressed if there is still time to appeal, within the timeframe. If the appeal has still not been made, it should be possible to leave that time open. I am suggesting the amendment to cover that eventuality.
I appreciate the points both Deputies are making. I am anxious not to penalise an applicant who is co-operating constructively with the authority, but I am equally anxious to ensure that the applicant who has been refused a licence by the authority should not continue to provide such a service unless he or she intends to lodge an appeal against the authority's decision. I do not favour allowing a failed applicant to continue to provide a security service during the permitted one month period if that person does not intend to appeal - indeed there may be a risk to the safety of the public by permitting it. However, I am willing to look at the substance of both amendments with a view to bringing forward an amendment on Report Stage.
I have just taken the Chair in a seamless way. We shall continue. I do not wish to draw attention to myself, but you are welcome, Minister.
SCHEDULE 1.
I move amendment No. 78:
In page 29, paragraph 1, to delete lines 24 to 26 and substitute the following:
"(6) At least 40 per cent of the members of an advisory committee shall be men and at least 40 per cent shall be women.".
We have been through this before when I put this matter to a vote. I do not intend to go through the procedure unless the Minister has had a change of heart?
I have not had a change of heart.
I move amendment No. 79:
In page 31, paragraph 5, to delete lines 18 to 21.
The proposal is to delete lines 18 to 21 which read: "(2) In giving evidence to the Committee [that is, the Committee of Public Accounts], the Chief Executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of any such policy". There will not be much to talk about. We expect we will have the opportunity of exploring the maximum amount of information from the chief executive officer of the authority. It appears desirable that we should know about policy matters, that the committee should not be limited to the restrictions included in the legislation, that it should be broadened out and that the chief executive officer should be welcome to outline the pros and cons of policy matters of the Government and the objectives of any such policy. The Committee of Public Accounts expects to get full information from a chief executive officer. It is important to know the direction policy is taking and so on.
The difficulty is that this is a standard provision in legislation of this type. For example, section 50 of the Employment Equality Act 1998 and section 14 of the Human Rights Commission Act 2000 contain a similar provision in relation to the chief executives of the Equality Authority and the Human Rights Commission. It appears to be a standard provision included in legislation of this sort. From that point of view, I cannot accept the amendment.
We are talking about an authority which, once appointed, will be independent. The Bill states it shall be independent in the exercise of its functions. It is expected it will have a degree of independence in its operation. Accountability is what we are talking about in this paragraph. Perhaps it is time we took a fresh look at these standard clauses included in previous legislation because a function of the Committee of Public Accounts, to which the chief executive officer will report, is to ensure what is happening in the authority is accountable and transparent. It appears this is related to being able to express an opinion on Government policy. The current provision appears to be too restrictive to allow for the accountability envisaged and the steps now being taken within Dáil committees to be more proactive in holding bodies which come before them to be more accountable and in eliciting more information. This provision appears to militate against expanding the powers of the Committee of Public Accounts and the role of Members of the Dáil in holding organisations to account.
As I understand it, the chief executives of the other bodies dealt with in legislation are also independent. If the Deputy looks at the terminology used in the paragraph he seeks to delete, all a chief executive is being prevented from doing is expressing a personal opinion on the merits or demerits of a particular Government policy. He or she can talk about policy and everything else under the sun. All he or she is prevented from doing is expressing a personal opinion. I understand the reasons this should be the case. This is a standard provision. If we were to decide to strike out on our own in this case, we would have to revisit all of the other legislation also. That being said, this is good practice. The chief executive of the authority will not be restricted in any way. All he or she is being restricted in is expressing his or her personal opinion on the merits or demerits of Government policy. This is defensible.
I do not know if we can proceed much further. Chief executives should be amenable to questions asked by the committee which have to do with transparency and accountability. It is unnecessarily restrictive that they are not even allowed to express an opinion on the merits and objectives of policy. The Minister of State has said a similar provision is contained in other legislation. Perhaps it is time to look at some of that legislation and allow for greater transparency and accountability in appearing before committees of the Dáil. It is the function of those committees to keep an eye on all of the bodies which come before them in terms of their activities, and if limitations are placed on the information they can seek to elicit, it will not serve the function intended.
I do not accept the Deputy's contention that the chief executive, when he or she appears before the Committee of Public Accounts, cannot discuss the objectives or parameters of policy. The Deputy said he or she could not even express an opinion. It is not a question of not being able to express an opinion; he or she can talk about the objectives of policy and the extent to which policy is realising the objectives set.
Can he or she express an opinion on the pros and cons of policy?
As I understand it, he or she can say the guidelines or objectives laid out are to be achieved within a certain timeframe, and outline what has been achieved. This may mean they have not reached their objectives. He or she cannot say, however, that the Minister's policy is rubbish or, if the question of the Minister's reappointment is to come up in a few months, that the Minister is a wonderful man or woman. That is not unreasonable.
Perhaps that is the provision that should have been inserted in the legislation.
The Minister of State should not mind the Deputy. He would get all-party support.
Perhaps it should be made clearer in relation to the other legislation but I cannot envisage it ever being made clear enough to allow chief executives act as political correspondents or commentators on various aspects of Government policy. I would not support this, regardless of who was in government.
We are going around in a circle on this one. We will not go any further.
Amendments Nos. 80 and 81 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 80:
In page 31, paragraph 6(2), line 30, after "Authority" to insert "or such other matters as the Committee may require".
The same point can be made on this amendment. Paragraph 6(2) states the chief executive shall, at the request in writing of a committee, attend before it to account for the general administration of the authority. Why should he or she just account for the general administration of the authority? Why should he or she not account for specific matters? Why should we not include the words, "or such other mattes as the committee may require"?
Again, we are talking about restrictions on the committee's work in relation to accountability. This paragraph is too constricting on the accessibility of information by Oireachtas committees. The first one mentioned was the Committee of Public Accounts, which is dealt with separately, but others are facing the same restrictions in that they can only seek general information. If that is the case, it appears it will defeat the purpose in getting information on the activities of the authority. Will the Minister of State, at least, consider allowing matters other than general administration to be explored?
I remind members that we are discussing amendments Nos. 80 and 81 together.
You are doing a great job and could get to enjoy the position.
I go along with much of what Deputy Costello is proposing in the amendments because we are restricting what can be addressed by a committee. The Acting Chairman is not long a Member of the House but his experience will tell him that when a committee seeks to investigate or examine a body - this body will, in effect, be set up and funded by the State - that this is not done lightly. It is done when it is concerned about what is happening and wants to bring in the people responsible and question them on the point of contention.
The Minister has built in out-clauses for the chief executive which are wide-ranging, one of which, contained in paragraph (3), reads: "The Chief Executive shall not be required to give account before a Committee for any matter which is or has been or may at a future time be the subject of proceedings before a court of tribunal in the State". That is a wide-ranging clause which gives an out in virtually everything because the chief executive can say something is likely to come before the courts.
Let me give an example. I was a member of the committee which dealt with semi-State bodies. The Minister of State will remember that a contentious issue arose about one of the oil companies and successive Ministers, for a period in excess of ten years, refused to appear before the committee because the matter might have gone before the courts. The issue needed to be examined but the committee was restricted in bringing in the people concerned, or even the Minister, to answer questions.
This is a broad brush approach and shifting the balance of power to the chief executive who can make up an excuse as to the reason he or she does not want to appear before the committee. As I said, committees will only request something when they are concerned about what is happening or there is a reason to examine a particular aspect of the matter. Let us not give away our responsibility to somebody else. Let us put the onus of proof on the chief executive to outline the position rather than give him or her the easy option to get out of appearing before a committee.
The position is that various pieces of legislation provide mechanisms for chief executives to appear before Oireachtas committees. This is a standard provision and the one we are following. For example, it is contained in the Human Rights Commission Act 2000 and section 19 of the Ombudsman for Children Act 2001. I am sure that when those legislative measures were debated, this issue was discussed at great length and the collective wisdom of the Oireachtas was that it should be included. It is a policy matter. I do not have authority to strike out on my own and depart from established policy.
The Minister of State is independent minded.
All of these matters are exaggerated but——
I hear he is independent.
This is a standard provision which appears in all legislation providing for the attendance of chief executives before parliamentary committees, and we intend to retain it in this Bill.
I make the same points in relation to amendment No. 81 as those made by Deputy McGrath. It is preposterous that a chief executive will not be required to account before a committee for any matter which is, has been or may at a future time be the subject of proceedings either before a court or a tribunal. Even if we were to delete the word "court", it would be worthwhile because it is such a catch-all phrase. Paragraph (2) states the chief executive shall, at the request in writing of a committee, attend before it to account for the general administration of the authority.
There are so many out-clauses in the Bill, a chief executive can virtually refuse to give any information to a committee. The paragraphs deal with the accountability of the chief executive to the Committee of Public Accounts and other Oireachtas committees. How can we have accountability with so many exemptions and exceptions?
Will the Minister consider asking the Attorney General or the parliamentary counsel if there is a legal requirement for having such an all-encompassing provision? Could we tighten it in such a way that it would allow committees to do their jobs in the proper fashion, that is, to elicit information to ensure accountability? As it stands, a chief executive officer does not have to disclose very much information about past, current or future activities.
I do not want to repeat the point I made. While I accept the Minister of State's point that this is a standard provision, perhaps it is one that should no longer be standard and which we should modify. I want to contrive a situation that might arise and cause concern. We are talking about the chief executive of the authority. What would happen if a difficulty arose which caused public disquiet in terms of who was getting licences - as I said, perhaps the wrong people were getting them - and people were dissatisfied with this? The chief executive would be able to say there was a problem but that the matter was likely to go before the courts. As a consequence, he could refuse to appear before the committee. We can say any matter is due to come before the courts. I can make a statement about the Acting Chairman who can say the matter will end up in the courts. I will not have to talk about it until then.
Perhaps the clause should be amended to state the chief executive does not have to comment on any matter where proceedings have been initiated or commenced rather than include the phrase, "has been or may at a future time be the subject of proceedings before a court . . . ". Any matter can be the subject of proceedings before a court at any time if a person so wishes. On many occasions writs - so-called proceedings - have been issued but never moved with the intention of parking the matter. I could give examples but will not do so now, although some may possibly relate to activities in this House.
The phrase is too loose. Perhaps the Minister of State will agree to look at it and make a ground-breaking move. He could make a name for himself and set the standard. He could at some stage become Attorney General. If we always accept that because a provision is contained in previous legislation it should be included in the Bill under consideration, it is an insult to us all.
I take the points made by the Deputies. The statement that matters may at a future time be the subject of proceedings before a court is wide. I notice that the wording is, "before a court of tribunal". We will have to change the word "of". The interpretation is another matter. Judges will not listen to mine but the intention is that while the chief executive cannot discuss specific cases that are or may come before the courts, he or she can talk generally about matters such as one Deputy McGrath mentioned about a licence being issued to the wrong people. However, he or she cannot go into the details of the specific case.
Deputy Costello suggested that I should talk to the Attorney General but his office instructed us on this provision and sent us copies of the various pieces of recent legislation in which it appeared, including the Ombudsman for Children Act 2001. I wonder what attention it received when that legislation was debated in the Oireachtas. At the Deputy's request, I will consult the Attorney General to ascertain if there is any compelling reason it should be put this way.
The committee would like to know if there is a compelling legal reason it should be constructed in this fashion.
I take the Deputy's point about which I will talk to the Attorney General.
I move amendment No. 82:
In page 31, paragraph 6(3), line 33, to delete "court of" and substitute "court or".
This is a drafting amendment to correct a misprint to which I referred.
I move amendment No. 83:
In page 32, paragraph 8(1), line 35, to delete "£1,500" and substitute "€2,000".
I move amendment No. 84:
In page 34, paragraph 4(6)(b), line 19, before “the” where it firstly occurs to insert “for stated reasons,”.
We discussed this proposal previously and the Minister agreed to consider it. I tabled a similar amendment on the membership of the authority. This amendment relates to the membership of the Private Security Appeal Board and proposes that the words "for stated reasons" be inserted to ensure that when a member's removal is being contemplated something would be put in writing and a formal procedure would be followed. The Minister indicated that he would consider this proposal and perhaps change or come up with a similar wording.
We will be in a position to table an amendment on Report Stage.
I move amendment No. 85:
In page 35, paragraph 9(2), line 36, to delete "£1,500" and substitute "€2,000".
I move amendment No. 86:
In page 35, paragraph 10(1), line 42, to delete "£1,500" and substitute "€2,000".
I move amendment No. 87:
In page 36, lines 5 to 7, to delete paragraph 12 and substitute the following:
"12.- Section 17 shall apply, with the necessary modifications, in relation to a member and the secretary of the Appeal Board as it applies in relation to a member of the Authority.”.
This amendment follows on from the deletion of section 16 relating to the declaration of interests. The secretary of the appeal board is covered by the 1995 and 2001 Acts. In other words, this is a consequential amendment.
As amendment No. 90 is related to amendment No. 88, they can be discussed together.
I move amendment No. 88:
In page 37, paragraph 14, between lines 2 and 3, to insert the following:
"(6) Where the holder of or applicant for a licence is not the appellant, the holder or applicant as the case may be shall be a party to an appeal.".
This amendment seeks to ensure that, where the holder of or applicant for a licence is not the appellant, the holder or applicant as the case may be would be a party to the appeal. It seeks to protect the rights of the person concerned. It seems reasonable that he or she would be accepted as a party to the appeal in terms of civil rights. The inclusion of the amendment would ensure such a person's rights would be respected.
I thank the Deputy for bringing this point to our attention and appreciate his concerns in the matter. Where the appellant is a third party complainant as opposed to an aggrieved applicant, it is only logical and fair that the licensee or applicant should be a party to the appeal. I will consider the points made by the Deputy with a view to tabling an amendment on Report Stage.
I thank the Minister of State.
I move amendment No. 89:
In page 38, paragraph 19(2), line 44, to delete "£1,500" and substitute "€2,000".
I move amendment No. 90:
In page 38, after line 49, to insert the following:
"20.-Where documents, information, observations or submissions are received under paragraphs 16 to 19, other than from the applicant for or holder of a licence, a copy thereof shall be transmitted to the applicant or holder concerned who may, within 14 days, submit to the Authority his or her observations or submissions thereon.”.
The response I gave covered amendments Nos. 88 and 90.
I was not clear on that point. That is fine.
I move amendment No. 91:
In page 39, lines 35 to 37, to delete paragraph 21 and substitute the following:
"21.-The reasonable travelling and subsistence expenses of any person attending before the Appeal Board in accordance with paragraph 20(3)(b) shall be paid out of moneys provided by the Oireachtas.”.
This amendment makes it clear that the reasonable expenses referred to in paragraph 21 relate to the reasonable travelling and subsistence expenses of a person appearing before the appeal board.
They relate to travelling and subsistence.
They are similar to that provided in the case of a social welfare appeal.
The more we go on the more I wonder about the extent to which the legislation will be self-financing.
The more we go through it the more we will see of it.
The Oireachtas will have to approve a considerable amount of funds.
I move amendment No. 92:
In page 40, after line 28, to insert the following new Schedule:
"SCHEDULE 3Section 40.
Modifications of Act in its application to relevant persons
1.-Except as provided otherwise in this Schedule, sections 21 to 23, 24, (except subsection (2)), 25 , 26, 28 to 30, 40 (except subsection (2)(e)) and 41 and paragraphs 14(1) (except subparagraph (d)) and 16(2)(a) of Schedule 2 shall not have effect in relation to relevant persons.
2.-Reference in paragraphs (h), (j) and (l) of section 8(2) to licensees are references to relevant persons.
3.- In section 24(2)-
(a) the reference to a licensee is a reference to a relevant person, and
(b) the following paragraphs are substituted for paragraphs (i) and (ii):
(i) prohibition of the relevant person from providing a security service in the State,
(ii) such a prohibition for a specified period,'.
4.-The references in section 25(1) to the revocation or suspension of a licence are references to a prohibition, or a prohibition for a specified period, of a relevant person from providing a security service in the State and the section applies accordingly with the necessary modifications.
5.- Section 27 is modified as follows:
(a) subsection (1) is deleted;
(b) references in the section to an identity card are to an identity card or other form of identification issued to a relevant person by the corresponding authority concerned;
(c) the reference in subsection (2)(b) to a licensee includes, where appropriate, a reference to a relevant person;
(d) subsection (8) is amended by the deletion of ’issued’ and the insertion of ’, or an identity card or other form of identification issued by a corresponding authority, which has been issued’.
6.-References in section 28 to licensees are references to relevant persons, and references to the licence number of a licensee are to the number of the licence or other form of authorisation issued by the corresponding authority concerned.
7.-The reference in section 31(1) to a licensee is a reference to a relevant person.
8.-The reference in section 32 to a licensee is a reference to a relevant person and that to a licence is a reference to the licence or other form of authorisation issued to such a person by the corresponding authority concerned.
9.-References in section 33 to a licensee are references to a relevant person.
10.- Section 34(1) is amendedc by the insertion of ’or is a relevant person authorised by a corresponding authority to provide such a service’ after ’that particular service’.
11.-The reference in section 35 to a licence is to a licence or other form of authorisation issued to a relevant person by the corresponding authority concerned.
12.- In section 36-
(a) references to a licensee are references to a relevant person, and
(b) the following clauses are substituted for clauses (I) and (II) of subsection (3)(b):
'(I) prohibition of the relevant person by the Authority from providing a security service in the State,
(II) such a prohibition for a specified period,'.
13.-In section 42 references to the revocation and suspension of a licence or other form of authorisation issued by a corresponding authority are references to a prohibition of the relevant person by the Authority from providing a security service in the State and to such a prohibition for a specified period.
14.-In section 39-
(a) references to a licensee are references to a relevant person,
(b) references to the revocation or suspension of a licence are references to a prohibition, or a prohibition for a specified period, of a relevant person from providing a security service in the State, and
(c) the reference to a licence or identity card is a reference to the licence or other form of authoritsation, or the identity card or other form of identification, issued to such a person by the corresponding authority concerned.
15.-The reference in section 40(2)(e) to licensees is a reference to relevant persons.
16.-The reference in paragraph 14 of Schedule 2 to a decision on a complaint under section 36 includes a reference to a decision to take an action specified in section 24(2) in relation to a relevant person.”.
I now ask Deputy Ó Fearghaíl to take the Chair to complete business.
I thank the Minister of State for attending today's meeting.
