Business of Select Committee.

I welcome Minister of State, Deputy Rabbitte, and officials from the Department of Justice. It is the Minister of State's first appearance before the committee and he is most welcome. His official title, Minister to the Government, has been most widely used recently. The committee is aware the Minister was given special responsibility regarding the use of illegal drugs and the crackdown on organised crime and we wish him well in his work in that regard.

If the committee does not conclude its discussions today, the debate will resume in the morning because the committee is charged with the responsibility of reporting to the Dáil on Thursday morning when Report and Final Stages will be taken. Given that amendments to amendments have been tabled we may have some difficulty from a procedural point of view, although that is not insurmountable.

In the debate I will be as flexible as possible because many of the sections and amendments are related. I hope Members will refrain from making Second Stage and elaborate speeches because the Second Stage debate has concluded and, perhaps more important, the amendments are technical. By dealing specifically and exclusively with the amendments we will make progress.

Organised Crime (Restraint and Disposal of Illicit Assets) Bill, 1996: Committee Stage.

Amendment No. 1 to amendment No. 1 and amendments Nos. 3 and 19 are related and all may be taken together. Is that agreed? Agreed.

NEW SECTION.

I move amendment No. 1:

In page 3, before section 1, to insert the following new section:

1.—(1) In this Act, save where the context otherwise requires—

‘the applicant' means a member or an authorised officer who has applied to the Court for the making of an interim order or an interlocutory order and, in relation to such an order that is in force, means any member or, as appropriate, any authorised officer;

‘authorised officer' means an officer of the Revenue Commissioners authorised in writing by the Revenue Commissioners to perform the functions conferred by this Act on authorised officers;

‘the Court' means the High Court;

‘dealing', in relation to property in the possession or control of a person, includes—

(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt,

(b) removing the property from the State, and

(c) in the case of money or other property held for the person by another person, paying or releasing or transferring it to the person or to any other person;

‘disposal order' means an order under section 4;

‘interest', in relation to property, includes right;

‘interim order' means an order under section 2;

‘interlocutory order' means an order under section 3;

‘member' means a member of the Garda Síochána not below the rank of Chief Superintendent;

‘the Minister' means the Minister for Finance;

‘proceeds of crime' means any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the commission of an offence;

‘property' includes money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property;

‘the respondent' means a person in respect of whom an application for an interim order or an interlocutory order has been made or in respect of whom such an order has been made and includes any person who, but for this Act, would become entitled, on the death of the first-mentioned person, to any property to which such an order relates (being an order that is in force and is in respect of that person).

(2) For the purposes of this Act, a person is in possession or control of property if he or she has, or has control of, any interest in it.

(3) In this Act—

(a) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other provision is intended, and

(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.".

The amendment would insert a new interpretation section in the Bill. The proposed new key definition relates to the term "proceeds of crime", which would replace "organised crime". As it stands, the definition of organised crime has the effect of limiting the scope of the Bill to criminal activity organised or carried out by at least two persons and involving the theft, illegal acquisition and/or destruction of property valued in excess of £10,000 or the distribution of controlled drugs.

On a drafting point, the definition is flawed. Organised crime is not referred to in the body of the Bill. The term used in the long Title and elsewhere is "organised criminal activity". In addition, if concepts such as theft, illegal acquisition and destruction remained, they would require definition by reference to relevant criminal statutes.

My real concern is the particularly narrow focus of the definition. As I pointed out during the Second Stage debate, there is, as the Minister views it, a danger in limiting the Bill to particular crimes and situations where these crimes were carried out jointly by at least two people. This approach leaves wide open the opportunity for somebody to legitimately argue that his or her assets represent the proceeds of crime but they were not acquired by means of one of the offences listed in the Bill and/or the particular offence was committed alone. There is no basis for providing that such a person should escape the effects of the Bill. The new definition of proceeds of crime would bring all offences within the scope of the Bill regardless of whether they were committed alone or with another person.

The Minister for Justice accepts, however, that the principle underlying the definition of organised crime is the desire to focus on suspected large scale criminals as distinct from petty criminals. The approach taken in the amendment is consistent with that objective. This will be obvious when later amendments are discussed. The monetary threshold of £10,000 is retained. Apart from that, the remaining new definitions do not involve any changes in principle to the approach taken in the Bill. They constitute drafting changes, a tidying up exercise aimed at making the definitions as comprehensive and foolproof as possible and are in keeping with the intent of the Bill. The definition of "dealing with property" is based on analogous provisions in the Criminal Justice (Public Order) Act, 1994. It includes the settling of a debt, the removal of property outside the State or the payment or release of transfer of property to any person. "Property" is also widely defined in line with this Act. The term "applicant" is not defined in the Bill as it stands, but is included in my proposal with related definitions of "member" meaning, as in the Bill, a member of the Garda not below Chief Superintendent rank and "authorised officer" meaning a revenue official authorised in writing by the Revenue Commissioners.

The term "respondent" is defined in the Bill but I propose to expand it to include the personal representatives of a deceased. Under subsection (2) the concept of being in possession or control of property would also be interpreted in a wide sense to encompass someone who, though not strictly speaking in control of, still retains an interest in property, a landlord for instance. Subsection (3) contains a standard drafting provision.

I move amendment No. 1 to amendment No. 1:

In the second line of subsection (2), after "it" to insert the following:

"; and where property is in the control of the spouse, brother, sister, child or other relative of the respondent, there shall be a rebuttable presumption that such property is in the control of the respondent".

As the Minister of State said, the principle of the original Bill survives the amendments which have been put forward by the Minister and we support them. The Bill has been improved by being tidied up and has been rendered more constitutionally sound by the changes made by the Government. That is in all our interests in terms of having viable legislation. The long Title has been changed from the original Bill. One of the changes is that the original Bill referred to the suspected proceeds of crime, whereas the amendment does not use the word "suspected". Would it be preferable to include the word "suspected" as the point is that assets are being seized without establishing criminal guilt?

The definitions section, as the Minister said, is replaced by a new section 1:

‘proceeds of crime' means any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the commission of an offence.

The big challenge of this legislation is that it marks a new direction. There must be some concern that a finding by the court that property constituting the proceeds of a crime could constitute trial on an offence not in accordance with law as guaranteed by the Constitution. Will the Minister of State deal with that matter? We are walking on egg shells here in terms of changing the direction of the law when a determination that property is related to a criminal act is allowed in civil proceedings, even though there is no criminal conviction. That is the substance of the Bill which we support but we cannot be blind to the difficulties here.

In subsection (2) it is noted that a person is to be regarded as being in possession or control of property if he or she has an interest in it or control of any interest. There should be an express provision that control of the property by a spouse or relation can constitute control by the relevant person. Control by such a person should give rise to a rebuttable presumption that the property is in the control of the relevant person. It is putting an express provision into the Bill that control of property by a spouse or relation can constitute control for the purposes of the Act.

The amendments proposed by the Minister are acceptable to our party because all the amendments put forward by the Government are in keeping with the broad spirit, intent and principle of our legislation. This Bill is intended to decimate the criminal oligarchy which has developed in this country and within days of it becoming law I confidently expect that upwards of 50 of the largest drug dealers and criminals here will have their assets frozen; that will only be the beginning. The effect of the amendment is to state that organised crime, which we defined in our Bill, will now be extended to all criminal activity and we welcome that. The passage of the Bill will undoubtedly signal the start of a remorseless war against drug barons and organised criminals which will cease only when the last penny of their ill gotten gains have been seized. The Bill, amended or otherwise, provides the power to strike at the bosses of organised crime and it allows for them to be turned out of their mansions and estates. It permits the impounding of their sleek and expensive cars. It permits the Legislature and authorities here to reach into their pockets and take back what is rightfully theirs.

For too long here, we have heard that the gardaí know the names of people involved in organised crime and other forms of criminal activity, but that the culture of fear which they cultivate prevents evidence being obtained. This Fianna Fáil legislation removes that final obstacle. It brings the criminal underworld into the spotlight of the High Court and makes them account for their lifestyles, assets and wealth. The Bill is designed to separate criminals from the proceeds of their crimes and is capable of achieving that end. In introducing this legislation in the Dáil on behalf of Fianna Fáil, I said that it represents the will of the people, that it is an example of democracy in action and of society moving against an evil within. I believe those sentiments to be as true today as they were when the Bill was first published.

The Bill's five central pillars remain. We proposed originally to give the High Court power to make interim restraint orders in respect of the suspected proceeds of organised crime and this remains in the legislation. We proposed that the High Court would be entitled to accept the opinion evidence of a Garda Superintendent or a Revenue Commissioner if the opinion was formed on reasonable grounds and that remains. We proposed that there would be a reversal of the standard of proof so that a person claiming ownership of assets must prove that they were legitimately acquired. That pillar remains in the legislation. We proposed that there should be provision for making interlocutory restraining orders. That pillar remains and we proposed that the High Court would be ultimately entitled to make disposal orders in respect of the property. These five pillars remain intact in terms of the amendment which Minister Rabbitte proposes. I have carefully considered the amendment suggested by the Minister of State and in a manner which I indicated we would when we introduced the Bill. We said then and we say now that we will accept any sensible amendment which would leave the central core of the Bill intact. In this context, many of the amendments suggested by the Minister for Justice as elucidated here today by Minister Rabbitte are monuments to parliamentary prolixity. There are some people in Government, if not all, who believe that there in no point in having one word where 100 words will do. That is their privilege having as they do a majority on the committee. I will give one example of the prolixity to which I am referring. It is contained in section 1 (3) (b) which was originally section 1 (2) (b) when I received it last Friday. It reads:

(b) a reference to a subsection, paragraph, or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended,. . .

That must be a classic example of a draftman's dementia or, perhaps more appropriately, it may represent the dementia which must have afflicted the rainbow coalition Government when it met — in a vacuum of intellectual despair — to consider legislation following some of the most serious crimes ever committed in this country.

Other examples, apart from amendment No. 1, abound in the list of amendments. Many of them have the sole effect of using 20 words where one or two might suffice. It appears that the Government has decided to wax elo-quently about this Fianna Fáil legislation. I always welcome and admire eloquence provided it is not used in the same way as one would produce a rabbit out of a hat, with a view to obfuscating the public view and suggesting that the legislation is not Fianna Fáil legislation.

The end result of the amendments proposed by the Minister of State, Deputy Rabbitte, is to leave the five pillars of the Bill intact and for that reason I do not oppose the amendments. What is important is that, as a matter of extreme urgency, we have legislation that can separate criminals from their illicit wealth and, regardless of whether it applies to organised crime or, as proposed by the Minister of State, all crime, it is something which legislators have a duty to provide. Legislators are entrusted with the task of protecting democracy and we must act resolutely, irrespective of politics or political philosophies, to discharge that duty.

The amendments are broad, sweeping and interpretative. I have long held the view that our Constitution is too often and wrongly used as a shield to protect the guilty rather than as a sword to be wielded in the interests of justice. The Constitution not only empowers but obliges us to avenge wrongdoing and secure justice. Article 43 of the Constitution obliges the Legislature to defend and vindicate the personal rights of each citizen. Those personal rights include the right to life, the right to bodily integrity and the right to own private property. When criminal activity infringes on those rights there is a clear obligation to act in the interests of justice.

When this Bill was published the Minister for Justice said it was unnecessary and that its provisions were already on the Statute Book. If that were true, there would not have been an obligation on us to meet here today. Within 24 hours the Minister's tune changed. She said that the Bill was unconstitutional. However, that position was written in sand and within a further 24 hours the Minister announced that she would recommend acceptance of the Bill in principle to the Government. What happened over those fateful hours to ensure that the Minister for Justice would reverse not just her original stated position but her restated position? It represents one of the most monumental U-turns in the history of Irish political life.

Be that as it may, I must give credit to the Minister as she delivered on her promise to accept the Bill. Second Stage was not opposed and the Government provided time in the Dáil for that debate. It would be churlish of me not to thank the Government for providing that time and for facilitating the smooth passage of the Bill. However, I will paraphrase the former leader of Fianna Fáil when he suffered a severe insult in the Dáil. He replied that he would break stones but if he got assistance he would not regard it as charity. In the same way I do not regard the Government's response to this Fianna Fáil legislation as charity; it is the Government's duty.

The Oireachtas sent a loud and clear message to criminals in society and that is what is most important. The message was that the people through their representatives, irrespective of their political persuasion, are taking action which will be remorseless and effective. This Bill, accepted by the rainbow coalition Government in Government time, is perhaps the finest example of democracy in action in the history of the State. An Opposition Bill was accepted by the Government in Government time, that is an extremely important milestone in Irish political life and a signal of maturity in politics.

Since Second Stage of the Bill was passed by the Dáil, a remorseless campaign has been waged in sections of the media to suggest it is unconstitutional. In the absence of specific evidence — I have plenty of circumstantial evidence — I do not point an accusing finger in a particular direction. However, it is abundantly clear that the clearest constitutional precedent exists in respect of legislation of this nature. Mr. Justice Barrington's description of the Offences Against the State (Amendment) Act, 1985, in the case of Alan Clancy and David McCartney v Ireland and the Attorney General, 1988 Irish Reports 326, as a permissible delimitation of property rights in the interests of the common good provides an unchallenged High Court authority for legislation of this nature. I heard a prominent journalist describe this legislation on public television as “legal illiteracy”. That says more about the individual than it does about the legislation.

Throughout the campaign of media guerilla warfare which has been waged against this legislation there have been categoric assertions that the Attorney General, for whom I have the greatest personal respect, had found the Bill unconstitutional. The Attorney General is one of the finest legal brains this country has produced. Throughout the media campaign not one legal argument, cogent or otherwise, has been advanced in support of the assertion of unconstitutionality. I do not believe the Attorney General ever advised the Government that the Bill was unconstitutional because I think more of him than that.

There has been an effort to undermine this legislation in the public mind. Society has an interest in this legislation because it is crucial to Irish life at this point. The politically inspired effort to undermine this legislation was despicable and underhand. In any event, the principle of the Bill has been accepted by the Oireachtas. To seek by anonymous media campaign to groundlessly impugn the constitutionality of the Bill was an exercise in national sabotage and little else. Those responsible, those who seek the dark cloak of anonymity rather than the light of public debate, are enemies of democracy.

I hope the Minister of State will join with me in denouncing the attempts to defeat this Bill by unparliamentary methods. This legislation is of immense importance. Those who prefer unattributed comments to the spotlight of public debate are to be deplored for their actions because they must know that this legislation was of fundamental importance, irrespective of its origin.

The proposed changes to section 1 are acceptable. I am a little concerned that the provisions of the Bill are being extended to authorised officers who are not themselves members of the Revenue Commissioners. I, and my party, intended the Bill to reflect the seriousness with which society views organised crime. For that reason we decided that Garda chief superintendents and the Revenue Commissioners should be nominated as the persons entitled to make an application.

I sincerely hope that the inclusion of the phrase "authorised officer" does not indicate a move to distance the Revenue Commissioners from the provisions of the Bill. Members will be all too well aware of an interview which the subcommittee on drugs had some time ago with an official of the Revenue Commissioners. He could not point to a single instance where a suspected drug dealer was convicted of, let alone charged with, tax evasion here. It is of fundamental importance that the Revenue Commissioners accept their responsibilities under this legislation and that the Government ensures this. I also hope the amendment does not indicate a lack of willingness on the part of the Revenue Commissioners to participate in the battle against organised crime. I also hope the Revenue Commissioners authorise one of their number to be the authorised officer within the meaning of the Bill. It is of crucial importance that the Revenue Commissioners act and are seen to act against drug dealers at this time.

In so far as the amendments suggest a definition of proceeds of crime, this to include property received at any time by or as a result of or in connection with the commission of crime, I have a preference for the wording used in section 3(1) of the Bill as published, which refers to the proceeds of organised criminal activity or assets acquired directly or indirectly from the proceeds of organised criminal activity. The wording in the Bill as published by Fianna Fáil is clearer and more descriptive than the amended version. This form of wording is copied by the Minister in section 2(1) (a) (i) of her amendment and I ask her to consider adopting the more concise form of wording. It is used in her amendment as put forward on her behalf by the Minister of State, Deputy Rabbitte.

There was a clear, almost joyful attempt to again undermine the legislation this morning by the Minister of State who obviously decided to have one last swipe at the Bill, although it is, to be truthful, his first intervention in the debate, as he is the quiet man of the rainbow. The Minister of State stated that the Bill as presented contained the word "theft", which should not be there. That is correct and I noticed it not as a matter of semantics but as a matter of legislative draughtsmanship. I discovered that we had made an error and had used the word "theft" rather than "larceny". However, ever anxious to be of assistance to the Government, I tabled an amendment to delete the word "theft" and insert the word "larceny". I cannot claim, nor can we as a party claim, absolute perfection in relation to everything, but we aspire to it and I hope the Minister will accept the position.

I welcome the Bill in whatever form it is passed, whether in Deputy O'Donoghue's form or as amended by the Government. My welcome is for the intent and objective of both and I hope it is effective in whatever form it passes into law because for quite some time we have felt that one of the greatest scandals of criminal drug related activity is the open flaunting of wealth by drug dealers, whether it be in the form of expensive cars or apartments and investments without any evident legitimate income. In a number of instances the same individuals are claiming social welfare. I am hopeful of this Bill, although I cannot say I am as optimistic as Deputy O'Donoghue who feels that within days of this Bill becoming law the assets of 50 drug dealers will be seized. The legislation is very wide ranging and can relate to any criminal activity in the State.

The single greatest threat from criminal activity in the State is from heroin dealers, of whom there are quite a number. The use of the powers under the Bill will have to focus in some way on particular criminals. I hope that the first test of this Bill will be when it is used to target the main heroin dealers in Dublin whose activities are so destructive of communities and of society generally and that their assets should be frozen. I am not sure how this can be done.

This week the Government spoke about setting up such an agency, though belated this is welcome. Perhaps that agency will be best equipped to use the powers in the Bill to go after these people. I would be concerned that it would not have immediate impact. For example, I believe we will still have drug dealers driving around in their expensive cars. I do not know how one would freeze such assets as expensive cars. I assume it is not possible.

I am sure that once the Bill is passed and if the right agency with the necessary resources and the powers included in this legislation is in place, it will be able to focus on the main drug dealers. In the United States, particularly in New York, such powers have been used to great effect in the fight against crime. We have much to learn from what was done in the United States. I hope this is one of the first steps in a similar war against these people.

When Deputy Geoghegan-Quinn, a former Minister for Justice, introduced her Bill in 1994 I pointed out that it was completely inadequate because of the difficulty in getting convictions against some of the major drug dealers. Even at that time it was clear to me, and to those involved at community level, that powers, like those contained in this Bill, were required. I compliment and congratulate Deputy O'Donoghue for pursuing this issue. Had he not done so, I do not believe we would be discussing this measure here today. Likewise I also have a strong feeling that if Veronica Guerin had not been murdered in broad daylight on a main thoroughfare, we would not be here today debating amendments to this Bill. That is an indictment of the Legislature. For a number of years many of us said these powers were required to go after the most unscrupulous drug dealers. It had to reach the stage where a journalist was murdered in this city before powers which may be effective in the fight against drug dealers were introduced. I welcome the intent and objective of the Bill. I have no difficulty with the amendment proposed by the Minister or with the additional amendment, which is appropriate and necessary to highlight the issue in Deputy O'Donnell's amendment.

Before calling Deputy O'Dea, I remind him that we are dealing with the amendments. We had a lengthy contribution from Deputy O'Donoghue but, in fairness, he proposed the Bill. I trust speakers will concentrate on the amendments under discussion rather than making Second Stage speeches.

I do not need to be so reminded. I have not had the same opportunity as Deputy O'Donoghue to consider these amendments in detail because, deplorably, they were published only last night. A month has passed since the Second Stage debate, yet Government amendments were published only 18 hours before we were due to debate them. Members of the committee were not given the opportunity to consider the amendments in detail. Nevertheless, having considered them in the short time available, I have no great objection to them in principle. The fact is that the substance of the Bill remains.

We all welcome this Bill which represents the beginning of a process to end the phenomenon of untouchability in this society. Grave offence is being caused by the activities of those who live like feudal barons, in circumstances of great opulence, their wealth obviously acquired through crime, gangsterism and illegal activities and that they are so far as the law is concerned untouchable.

Despite what the Minister for Justice said on Second Stage and what the Minister said this morning, the Bill, together with the amendments, remains in substance Fianna Fáil legislation. It remains substantially unchanged, although there are a few minor changes, definitions have been expanded and others have been included. In its effort to create the illusion that it has something to do with the legislation, the Government produced 16 pages of amendments — some of which are necessary — to a five and a half page Bill without changing its substance.

I am concerned about the change in the provisions relating to the Revenue Commissioners from those contained in the original Bill. I want to know how the change in relation to authorised officers will operate in practice. Is it the intention of the Revenue Commissioners to nominate a few people and to designate them or is its intention to designate an individual as authorised officer for each seizure in which it is engaged? If a couple of named people, who will be known from appearances in court, are designated as authorised officers for the general purposes of the legislation, obviously they will be targets. Will they be attached to the special squad and will they enjoy 24 hour protection? I want to know how that will operate in practice.

I deplore the media guerrilla warfare, mentioned by Deputy O'Donoghue, which has been waged relentlessly against this Bill since it was first published and because it was produced by the Opposition. Despite that and the rabbits, constitutional and otherwise, which the Government's anonymous advisers have pulled out of the hat, the fact remains that the people want this Bill. It is obvious that the activities of the pocket emperors who control the drug trade will be severely restricted if their assets are seized even if that did not become obvious to the Government until Veronica Guerin and Jerry McCabe were shot.

As regards the constitutional arguments, I do not know who is controlling this from behind the scenes. I read in a Sunday newspaper a quote attributed to the Attorney General to the effect that the Fianna Fáil legislation was unconstitutional. As far as I know, that has not been denied or withdrawn. I invite the Minister to withdraw that allegation or to clarify the Attorney General's position. We cannot have a situation where a Sunday newspaper can quote the Attorney General declaring that something is unconstitutional without advancing any reason or without interviewing that officer. Did the Attorney General give his opinion that the Fianna Fáil legislation, as originally produced, was unconstitutional? If he did, I would like to know why and, also, where in the 16 pages of amendments what was previously unconstitutional has now magically been transformed and is constitutional? It is obvious, certainly to the law enforcement agencies, that if we take out the leaders of organised crime, seize the assets of drug barons and put them out of business, other drug barons will immediately take their place. Every time you cut off a head it is replaced by 20 other heads because the rewards are so great.

I discovered this morning that the Minister of State, Deputy Rabbitte, has been made some sort of a drugs overlord by the Government to wage relentless war on behalf of the people against drugs. He will be conscious of the fact that one must deal with the market and with consumption. We are debating one side of the story here but the reason people are prepared to risk trafficking in drugs for such financial rewards is because the demand is so huge.

The Government has a clear responsibility to introduce measures to reduce that demand. Deputy Rabbitte should clarify if that is part of his responsibility. I wish him well in fulfilling his task and I look forward to his proposals for reducing demand for drugs.

I am delighted we are here on this historic occasion for Committee Stage of this Bill. I commend Deputy O'Donoghue for his efforts in producing the Bill. It is a tremendous achievement to produce reasonably comprehensive legislation given the resources available to the Opposition. However, I am disappointed the Deputy ranted and raved so much about the Government amendments. He made disparaging comments about those amendments as well as the draftsmen who produced them. As Deputy O'Donoghue and I operate at present, we have few resources in terms of expertise in draughtsmanship. It is reasonable to assume that Government draftsmen will draw up amendments they feel are necessary to make the legislation work. We would be wasting our time if the legislation was not going to work.

While I also have difficulty with some of the amendments and I wonder why they are there — perhaps Deputy O'Donoghue understands it better as a legal person — I accept the draftsmen's word. They are bringing them forward as they feel they are necessary to make the Bill work. That is important and we should accept it.

The Deputy said he will accept the amendments and that is a reasonable approach. He complimented the Government's maturity and said it was democracy at work. In so doing, was the Deputy saying that previous Governments — in which his own party held the justice portfolio for eight years since 1987, and for 50 years of the past 74 years of the State's existence — were not mature or democratic in refusing to accept Bills introduced by the Opposition? The Deputy is leaving himself open to that accusation just to grab media headlines.

When Fianna Fáil spokespersons go into Opposition everything is suddenly wrong. In June 1994 one Front Bench spokesperson for Fianna Fail talked about the benefits of a certain move being made by Government and how beneficial it would be to its recipients. However, in March 1995 when he was in Opposition, he had changed his mind and said the Government was wrong to introduce it. What sea change took place in the meantime? Perhaps he had read the mandatory pamphlet entitled "How to Behave in Opposition when you are in Fianna Fáil", according to which you must criticise the Government for everything. A reading of the Officiall Reports for 1984 and 1985 provide a good example of what happened when Fianna Fáil came into power in 1987. Many of the promises they made in that period were totally overturned and set aside. We have to be realistic.

I agree with Deputy Gregory who said that if Veronica Guerin had not been shot dead in that terrible atrocity we would not be here today. Deputy Gregory is right and it is a sad reflection on all of us, Government and Opposition. However, we are here and we have something before us that Deputy O'Donoghue prepared. I hope it has been honed into a worthwhile tool that can be used to stop the terrible rot in society.

The legislation marks a sea change in the sense that it will freeze the assets of people suspected of being criminals who obtained their assets through fraudulent behaviour. Many of them will not have any criminal convictions in the courts and certainly no convictions relating to those assets. In my book, that is a sea change. Deputy O'Donnell said that our Constitution protects the rights of the individual unless they have been found guilty in a court of law. Can the Minister read into the record the legal advice available to Government indicating this momentous change? Will it be constitutional and will it stand up in court? I am not sure if the Minister can do so, but I would like him to clarify that.

Deputy O'Donoghue said the drug barons' flash cars would be impounded shortly to reduce them to travelling by bike or foot. Can the Minister clarify whether it is possible for mobile assets like cars to be covered by this legislation? It would hit the drug barons hardest if their status in society was reduced to such an extent that they could no longer have the trappings of wealth they currently enjoy.

I welcome the amendments and I compliment Deputy O'Donoghue on having introduced the original Bill. It is tough legislation and the seizure of assets is a major step forward but the wording must be as accurate as possible. I shared the Deputy's frustration when he languished on the back benches and did not listen to us in Opposition when we criticised the draftsman for having a complete say in the use of legal terms. However, I am beginning to accept that a simple word in English means one thing in court and something completely different outside it. The legislation must be as accurate as possible.

When I listened to Deputy O'Donoghue I could not help thinking of two lines of poetry, as he languished in the back benches in Government watching his colleagues who perhaps did not do as much as they should. I am sure it was of him it was said: "Full many a flower is born to blush unseen, And waste its sweetness on the desert air." Now we have a new Kerry rose, with a few thorns. In about 15 years time when he gets into Government he will have much experience to add to what is left behind.

The amendments are important. I congratulate the Minister on accepting the Bill and on doing her best. In the long run the people with whom we are dealing have the most money and can pay the best legal brains to find fault with this Bill. We hope that, as amended, it will stand up to that test in court.

I was interested to read the amendment and particularly the wording of subsection (3)(a). Deputy O'Donoghue has, in his own inimitable style, responded to that wording. I see it as some kind of a voyage in verbosity, dangerously skirting the literary doldrums. Amendment No. 1 and the subsequent amendments are clearly a recognition by the Government of the fundamental significance and importance of the Bill. As Deputy O'Donoghue said, the fundamental and essential pillars of the Bill are being retained. Other speakers have said some of the amendments are essential while we would see them as not so essential. However, they confirm that our Bill is necessary.

This problem is the most serious threat to the security of the State since its foundation. Everybody in Dáil Éireann has regarded the serious problem of escalating drugs related crime as a fundamental threat to the security and future of the State. This Bill is a significant step to address that fundamental threat.

I agree with Deputy O'Donoghue and others there was an attempt to rubbish this Bill. I denounce it and compliment Deputy O'Donoghue. Were it not for the tenacity, determination, commitment and conviction he demonstrated, this Bill would not have survived.

I welcome the Minister of State, Deputy Rabbitte, but I am disappointed the Minister for Justice is not here. I accept that she is attending an important State function but if this was her Bill, she would be here.

Despite the ongoing signals, and pronouncements of Deputy O'Donoghue there was Government inertia on this. Some of the remarks made by Deputy McGrath and others have prompted me to comment on it. There was serious Government inertia, perhaps because of a blatant conflict of ideologies within the Government.

How does one explain it when Fianna Fáil was in Government?

Deputy McGrath commented on Deputy O'Donoghue's reference to maturity of Government. When Fianna Fáil was in Government no less than three Bills were accepted from the Opposition. Deputy Shatter can certainly take credit for at least one if not two of them. Deputy O'Dea, in his capacity as Minister of State at the Department of Justice, accepted one relating to landlord and tenant legislation.

I am intrigued as to the AG's role in all of this and it has been referred to by a number of speakers. If the AG had clearly and unambiguously stated to Government, though not publicly, that there was constitutional difficulty with this Bill, today's deliberations represent a clear dereliction of duty on the part of the Government? If he had concerns they are being set aside by today's proceedings.

I welcome Deputy O'Donoghue's legislation and the fact that it has reached Committee Stage. It is clearly a recognition by the Government of the fundamental importance and essential urgency of this legislation. I commend the Bill to the House and as Deputy O'Donoghue said we have no great difficulty with the amendments proposed.

A great deal has been said about this interpretation section. It is a difficult area. I was a member of committees on previous occasions which recommended seizure of assets and that is all on the record. The real question relates to the constitutional issue and that has delayed progress by successive Governments. This legislation is an important breakthrough on the constitutional question. It has arisen because of the country's horror and disgust at the brutal killing of a journalist, a young woman who put a great deal of her life and work into tackling drugs barons.

Both sides of the House pressed for this legislation. There has always been a concern about constitutionality. I am not surprised therefore the Attorney General warned that the Bill was unconstitutional. It was a definitive statement that the Bill was unconstitutional, and an unnerving one coming directly, as it was purported to have come, from the Attorney General. That was reported as recently as 7 July 1996 in the Sunday Business Post. That issue has been thrown up again and again to deflect people from the commitment of Members of both sides of the House in this area.

I am happy this Bill includes not just drugs but other organised crime. As we have said at this committee in the past, these people are involved in serious crime as well as in drugs related crime. Consequently I am happy that the Bill, as amended, will cover organised crime in general, as was Deputy O'Donoghue's original intention.

The figure given of in excess of £10,000 will make this an effective instrument. When we spoke about organised crime we were talking of people having hundreds of thousands or millions of pounds. This measure will apply to amounts of money above £10,000 and to any person who has an interest in the money or to whom it is transferred. This effective instrument is long overdue. The Oireachtas and successive Attorneys General have had reservations about such a measure. However, we are taking the bull by the horns; we are saying that we do not accept the right of crime barons to get away with their behaviour.

The purpose of the Bill is to tackle the crime barons. It must be backed up by the interagency group which the committee has repeatedly recommended. Two additional elements are needed — one is to provide a way back for the addicts through treatment, which is equally important; the other element is a large scale and urgent health education programme to reduce the demand for drugs.

As Deputy Gregory will recall, we were conscious, particularly in the early 1980s, of the more limited but serious problem in the city centre. At that time we began a nation wide education programme in schools, educating the principals and vice-principals about drugs. That programme seemed to have lost its way in the mid-1980s, perhaps because the urgency lessened. However, with the resurgence of drugs in the early 1990s, particularly from 1994, the matter has taken on a new importance.

With regard to the section, is the Government satisfied that the Bill is constitutional? Deputy McGrath, among others, has raised this point. It is a matter that needs clarification. The acceptance of the Bill in principle indicates that the Government supports the Bill and that the Attorney General, if he did not do so earlier, now accepts its constitutionality. We have had warnings in this regard recently, allegedly from the Attorney General.

Can we cover the issue of domicile which might arise? As Deputies know the amendments were received late last night. The issue of domicile versus residence should be considered so that people cannot play the two against each other by pleading a change of domicile to escape being subjected to the provisions of the Bill. To what extent will residence be a factor?

This is an important stage of the debate because amendments will be made and the Bill will be reported to the Dáil on Thursday. There has been comment on the adequacy of the Bill, but, as Deputy O'Donoghue indicated, the pillars of the Bill are still intact. Having considered the amendments I am satisfied the main points of the Bill are still intact, although there will be drafting changes. There are elaborations and, in some cases, illusions.

In today's issue of the Irish Independentthere is an article entitled, “Crusading lawyer gets key job in the war on crime”. The individual concerned is Mr. Barry Galvin, whom the committee has met. We know how strongly he has been crusading against drugs and organised crime in Cork. The article states that “ . . . last night it was confirmed that a Taxes (Disclosure of Certain Information) Bill will be introduced next Thursday.” Should this be part of this Bill? Is it a parallel development to complement this Bill? Should it be considered in conjunction with this Bill to ensure it will work properly with it or will that be left until Thursday when Report Stage of this Bill will be taken and the Taxes (Disclosure of Certain Information) Bill, 1996, will be introduced?

The question of cars arises in relation to the interpretation section. In social welfare matters the ownership of expensive cars was taken into consideration — the case of the "General" was an example. If the cars are worth over £10,000 they should be taken into consideration.

I have no qualms about the amendments which are the draftsman's approach to framing the Bill. It is important that the terms of the Bill are correct. It is an important initiative on which I congratulate Deputy O'Donoghue and I agree with the Minister's amendments. I hope the Bill will close off all the escape routes in so far as possible. I congratulate the Government for going along with Deputy O'Donoghue's proposals.

I congratulate Deputy O'Donoghue on bringing forward this Bill. It is unusual for the Government to accept an Opposition Bill. However, as the Deputy pointed out, we are engaged in the democratic process and as part of that process the opinions of all should be heard. Government amendments to an Opposition Bill are appropriate. It is important in this case for the Government to bring forward the necessary amendments to ensure the legislation is adequate to deal with the problem.

I wish the Minister of State, Deputy Rabbitte, well in the task he has been given to tackle the drugs problem. As we share the same constituency, we are both faced with the problem. I am sure our constituents and people throughout the country will welcome this Bill.

I hope the fear that the Bill will be unconstitutional is unfounded because the same was said about other Bills. In the case of the Control of Horses Bill, when we wanted to dispose of horses causing mayhem throughout west Dublin, we were told we could not provide for certain powers to dispose of them because it would border on being unconstitutional. The question of constitutionality arises with every Bill that seems to address serious problems so we must clear up that matter in this and many other cases.

I want to draw attention to the part of the amendment which relates to the Revenue Commissioners. They are important in that they are primarily the people who will address this problem. What will happen when they are brought into the front line? As we speak, people in the underworld whose assets we are after are busily arranging to dispose of them in a way which cannot be reached by this Bill. I am worried that the notice given to people will enable them to use available expertise to frustrate the provisions of the Bill which will deal with the problem. I imagine the Bill will probably address people who engage in that type of business in future, drugs barons and people involved in organised crime. It will address more of the people coming on stream rather than those who have already acquired these assets. I am almost certain that people will have sufficient technical expertise available to frustrate the workings of this Bill immediately.

Therefore, the Revenue Commissioners are an important element of this Bill. Is there any intention to train certain officials of the Revenue Commissioners who will have the expertise to examine the situation as they find it when the Bill comes into effect? Will the Minister ensure adequate resources are available to the Commissioners to enable them to undertake whatever examinations are required to reveal the nature of the problem?

Many people who own property as a result of illegal activities, such as drug dealing and other organised crime, sink that money into property which is let out to tenants. What does the future hold for people who rent such property when the State takes over and disposes of these assets? It is a simple question and probably not an enormous problem but I am sure many people will be worried about what will happen when the State begins disposing of these assets.

I welcome this Bill and the amendments. I am a self-confessed sceptic when it comes to pursuing the matter of drug abuse purely as a justice issue. There has been a tendency in recent weeks for many to suggest that is the way we should go about it. I do not believe, for example, that interfering with the laws on bail or the right to silence is likely to make any difference to drug-traffickers. It does not mean there is not merit in some of those proposals but, frankly, they will not make a blind bit of difference to people involved in drug-trafficking. However, a Bill of this kind stands a chance of making some impact and, in that context, I welcome it.

We should be clear as to what exactly we are doing. Since I gather this debate is about the section which relates to the definitions, I would be interested in what exactly the Minister construes as the proceeds of crime because, unless I am mistaken, there is no specific definition in the Bill. I think the amendment defines a crime as an offence. Clearly, that is capable of a fairly wide construction and it would obviously have a definition which would apply to Revenue offences, for example. One can imagine circumstances where an owner of property, a publican, a farmer or whatever, might ——

There is a definition.

The amendment just refers to "the commission of an offence". It states:

‘proceeds of crime' means any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the commission of an offence;

and that is the only definition. Am I correct?

The "property" is defined in the amendment.

Yes, but there is nothing, for example, preventing an owner of property, be it a farmer or a publican, who has committed a Revenue offence from having his property made subject to an order under this Bill, as I read it. If that is incorrect, will the Minister correct me? I am not saying that should not be the case in any event but if we are doing something like this, we should do it consciously and be aware of its potential scope. I would be interested to hear the Minister's comments on that matter.

We have had a fairly comprehensive round of opening addresses and debate on these amendments. We will resume with the Minister's response at 2 p.m.

Sitting suspended at 12.57 p.m. and resumed at 2 p.m.

When responding to the various points raised the Minister of State might also make reference to amendment No. 19 which is grouped with the amendments under discussion.

Amendment No. 19 refers to the Short Title. Is that correct?

Yes. Having regard to the fact that most, if not all members of the committee, certainly everybody present, had an opportunity to make a substantial contribution to our proceedings this morning, I understand that it is the hope of all present to conclude Committee Stage late this afternoon. I hope members bear this in mind in the context of further contributions. We hope to conclude between 4.30 p.m. and 5 o'clock, but I am in the hands of the committee including making provision to meet again tomorrow. I am not sure of the Minister of State's arrangements for tomorrow, but perhaps we might review matters in the course of the afternoon. It is my intention to conclude matters today.

As somebody who has not been concerned with the Bill up to now, I compliment Deputy O'Donoghue on the instigation of this legislation and his tenacity in pursuing it. I have not appeared before this committee previously. I appeared before a comparable but relatively boring economic committee where the kind of extensive presentations I listened to this morning were not heard. This has been an educative experience for me.

I hope the Deputies on the other side will forgive me if I do not argue about the paternity of the Bill as it now stands. The public is not concerned about demeaning the legislative process by arguing like children as to whose lollipop it is now. The people are concerned only that the Bill is effective.

The Government is satisfied that the reason for rewriting the Bill, including the Short Title, is to achieve Deputy O'Donoghue's purpose. I have no interest in agreeing with anybody who would seek to deny that Deputy O'Donoghue is the father of the thought. However, the Bill raised questions that had to be addressed by the Government and we have sought to do no less and no more than that. I accept Deputy O'Donnell's point that it improves the constitutionality of the Bill and makes it more comprehensive and effective. She asked why the word "suspected" had been dropped from the long title. The different definitions in the interpretation section make the word "suspected" superfluous because the freezing of assets can only take place after a court is satisfied it is dealing with the proceeds of crime.

The constitutionality of the Bill was mentioned by Deputies Woods, O'Dea and O'Donoghue. I do not wish to chase those shadows. If there was guerrilla warfare in the newspapers it passed over my head and Deputy O'Donoghue can be reasonably content that it will have passed over the heads of most of his constituents also. I know nothing about that nor do I know anything about a statement by the Minister for Justice that the Bill is unconstitutional. The Minister said the Bill gave rise to concerns about its constitutionality, which is a different matter. Our expert advisers voiced such concerns about the Bill. I cannot say to the committee, with the same certainty that Deputy O'Donoghue so effortlessly musters, that the Bill is constitutional. The Minister for Justice, with the assistance of her officials and the expert legal advice available to her, has sought to ensure there is no remaining constitutional infirmity in this legislation. I am not seeking to evade the question raised by Deputy Woods, but it is not customary, as the Deputy knows, to read the Attorney General's advice to the committee. All parties in this House are concerned that the Bill will withstand any challenge and that it will work and be seen to work. The advice we have is that that now applies.

Much has been said about the constitutionality of the Bill and of the amendments and about newspaper reports which purportedly outlined the Attorney General's advice on the matter. On Second Stage the Minister said that some constitutional concerns were raised by the Bill, which needed to be studied carefully. That should not be taken as a definitive opinion that the Bill is unconstitutional. The fact that the Minister agreed to the principle of the Bill on Second Stage demonstrates this. The Government would not have accepted the Bill on Second Stage if it had advice that it was unconstitutional. These amendments have been drafted by the parliamentary draftsman in the light of the Attorney General's advice. They seek to fortify, in so far as can be done, the provisions of the Bill against challenge. Guarantees cannot be given in this respect as the decision on constitutionality rests with the courts. Great care has been taken in the past four weeks to ensure that this important measure, which is only one measure in the fight against the criminal godfathers, will be effective.

Deputy O'Dea and Deputy Woods mentioned the market, consumption and reduced demand. I agree with the view expressed by Deputy Derek McDowell that measures other than reducing the supply of drugs or changing the criminal law are necessary to effectively combat the drugs menace. The purpose of the ministerial committee established by the Cabinet, of which I am chairman, is to look at ways of reducing the demand for drugs. That is not to argue there is no necessity for optimum co-operation between the agencies of supply and demand. The committee has advertised the specific terms of reference in that regard and has invited contributions from the public and from interested individuals and community organisations which deal with the drugs menace in their communities to make submissions about the efficacy of the system, the perceived lack of co-operation between agencies, what legislative or other proposals might be brought forward to improve that and how we could encourage better co-operation between the agencies in the areas worst afflicted. I accept the point made on both sides of the House about the necessity for effective action in that area.

The other main question was how, substantially, the Bill has been changed. That is not a productive way to do business. Deputy O'Donoghue asserted that we were now engaged in parliamentary prolixity and that the Bill was a monument to that but he then treated us to a lengthy demonstration of his indisputable mastery of parliamentary prolixity. I do not deny him the right to do that but now that the substantial wedge of documentation has been delivered safely to the media, we might make more progress if hyperbole in a similar mould was retained for the press conference called for tomorrow and we dealt with the amendments to the Bill.

Deputy Woods asked about domicile and its implications in this regard. I understand that any property in the State can be frozen if the offence was committed in the jurisdiction. If somebody is domiciled abroad and the offence is committed in this jurisdiction, the property in this jurisdiction can be sequestered.

Deputy McDowell raised the question of the definition of the proceeds of crime and inquired whether it could be used to prosecute the kind of case that is not envisaged under the legislation. The honest answer is that it could be used in this way but so could a range of other provisions relating to criminal law. Typically this does not happen. If it happens on occasion, perhaps it should not. It is not the intention that the definition per se sets out to apprehend publicans who are over £10,000 in arrears with their tax payments. I do not believe there are any such people in Ireland. Similarly, there may be a criminal who might be in the ownership of such a public house and who might be in arrears to the taxman. I do not believe that anyone would argue with that offence being used to ground an application for an interim or interlocutory restraining order. If a person has innocent grounds to establish ownership of the particular wealth in question, liquid or otherwise, this section provides the opportunity to do so. I believe the courts would generally take that view.

If the legislation is to be effective, we must stop pussyfooting and spread the net wider than would happen in peacetime so to speak. Some of the criminal godfathers who are the subject and target of this legislation are not operating by the Queensberry rules. If there is some minimal risk, it is better to err on the side of comprehensive legislation that will part the big time barons from their ill-gotten wealth.

Deputy O'Donnell tabled an amendment to amendment No 1. The purpose of her amendment is to create a rebuttable presumption that property in the control of the respondent's spouse, brother, sister, child or other relative is in the control of the respondent. It is going too far to provide that there should be an onus on such relatives to rebut such a presumption. If the Garda or Revenue Commissioners suspect that certain property is the proceeds of crime, proceedings will be instituted against the person in control of that property. If it is known that relatives are in control of property owned by the respondent, those relatives would also be named as respondents. If it emerges during the course of proceedings, at the interlocutory stage, for example, that any of the respondent's relatives are in control of property which is the proceeds of crime, notice of the proceedings will be served on those relatives and the order made against them.

There is the additional point that the term "relative" is too loose and would require definition. However, I do not believe that a provision along the lines suggested by Deputy O'Donnell is needed or warranted. I can understand what prompted the Deputy to table her amendment but I remain of the view that it goes too far. The freedom or obligation to prosecute a charge against a such a relative, in other words to make them a respondent in their own right, is provided for if there is reason to believe that the person is in control of property within the meaning of the legislation. It is not inconceivable that a relative could be entirely innocent of any complicity in the circumstances envisaged by Deputy O'Donnell's amendment to amendment No. 1. I do not wish to labour the point.

I thank the Minister of State for his response. There will never be a need for a paternity test to establish the parentage of this Bill. Everyone is aware that this legislation was introduced by Fianna Fáil. I never stated that I could say with certitude that the Bill is constitutional. I stated I was confident it is constitutional. Only the courts can determine whether a Bill is constitutional. It is not within my power, nor is it my right, to decide whether a Bill is constitutional. There has never been legislation placed before the Houses of the Oireachtas about which doubts relating to constitutionality could be expressed. It was reported through an unattributed source that the Attorney General stated that the Bill was unconstitutional. That should not have happened. It is clear this is a blatant attempt to undermine the legislation. In my view, it did a disservice to the Attorney General. The persons who leaked the information should be ashamed of themselves.

I accept that the amendment is in broad agreement with the principles, intent and spirit of the legislation. I do not believe there is any need to address the issue further.

I thank the Minister of State for his response. I tabled the amendment to amendment No. 1 because of concerns that it might be necessary to provide a specific clause to include relatives or other people who should be presumed to be in control of particular property. I accept the Minister of State's indication that the amendment may have gone too far. However, the point was worth making.

I thank the Minister of State for dealing with the issue of constitutionality. It is important to have a debate on the constitutional concerns expressed inside and outside the Houses. As the Minister of State stated, no one can guarantee the constitutionality of any legislation before the House. However, there is a presumption of constitutionality attaching to all Bills passing through the Oireachtas. That is the best we can hope for in this regard. Deputy O'Donoghue referred to precedents handed down by the Supreme Court whereby wide discretion was given to the Oireachtas to legislate for particular problems. It is worth noting that, in relation to drugs and organised crime, the Supreme Court stated that the potential damage to society from the use and distribution of controlled drugs is great and constitutes a pernicious evil. On that issue, the Legislature has wide discretion in reconciling the interest of the common good with the rights of individuals. By introducing this Bill, we are attempting to do so.

Since 1994 there has been on the Statute Book a power to restrain or seize assets when a criminal conviction has been determined by the courts and it would be interesting to see how successful that legislation has been — that is, how many confiscations of the proceeds of crime have been made under the Criminal Justice (No. 3) Act, 1994. It was discussed in this committee and passed by the House but we found soon that, although it was a radical method of seizing assets after a criminal conviction, we still need civil proceedings to seize assets instead of arresting and convicting the criminal and that is the basis of this Bill. Has the Minister any indication of how successful the existing legislation has been? I withdraw my amendment and thank the Minister for his response.

Amendment No. 1 to amendment No. 1, by leave, withdrawn.
Amendment No. 1 agreed to.
Section 1 deleted.
NEW SECTION.

I move amendment No. 2:

In page 3, before section 2, to insert the following new section:

"2.—(1)—Where it is shown to the satisfaction of the Court on application to it ex parte in that behalf by a member or authorised officer—

(a) that a person is in possession or control of—

(i) specified property and that the property constitutes. directly or indirectly, proceeds of crime, or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime.

and

(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000,

the Court may make an order (‘an interim order') prohibiting the person or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value during the period of 21 days from the date of the making of the order.

(2) An interim order—

(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

(b) shall provide for notice of it to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts.

(3) Where an interim order is in force, the Court, on application to it in that behalf by the respondent or any other person claiming ownership of, or of an interest in, any of the property concerned may, if it is shown to the satisfaction of the Court that—

(a) the property concerned or a part of it is not property to which subparagraph (i) or (iii) of subsection (1) (a) applies, or

(b) the value of the property to which those subparagraphs apply is less than £10,000,

discharge or, as may be appropriate, vary the order.

(4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interim order.

(5) Subject to subsections (3) and (4), an interim order shall continue in force until the expiration of the period of 21 days from the date of its making and shall then lapse unless an application for the making of an interlocutory order in respect of any of the property concerned is brought during that period and, if such an application is brought, the interim order shall lapse upon—

(a) the determination of the application,

(b) the determination of the ordinary time for bringing an appeal from the determination,

(c) if such an appeal is brought, the determination or abandonment of it or of any further appeal or the expiration of the ordinary time for bringing any further appeal,

whichever is the latest.

(6) Notice of an application under this section shall be given

(a) in case the application is under subsection (3), by the respondent or other person making the application to the applicant,

(b) in case the application is under subsection (4) (b) the applicant to the respondent unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts,

and, in either case, to any other person in relation to whom the Court directs that notice of the application be given to him or her".

This section corresponds to section 3 of the Bill and, like that section, provides for the making of an interim order freezing property for an initial temporary period. This amendment follows the principles of the existing section 3 but there are some important differences and supplementary provisions. Some differences flow from the changes in the interpretation provisions. The most important is in relation to the definition of the proceeds of crime. The effect of this is that an interim order will apply to the proceeds of any crime, compared to the existing section 3 which applies only to the proceeds of particular offences. I realise the intention of this restriction was to target the effects of the Bill on the proceeds of serious offences but the same effect can be achieved by the monetary limit of £10,000. This limit, which is used in the Bill, will ensure an interim order can only apply to substantial property.

There are other variations from the existing section 3. Where the current section envisages a Revenue Commissioner applying for an interim order, this amendment refers to "an authorised officer of the Revenue Commissioners". The Bill, like this amendment, provides for a chief superintendent of the Garda Síochána rather than the Garda Commissioner to apply for an order. Clearly it is illogical to specify a chief superintendent on one hand but specify a Revenue Commissioner on the other. Authorisation by the Revenue Commissioners will be made on an operational basis at the appropriate level.

The provisions in section 3 requiring the court to direct the filing of affidavits by the respondent are dealt with separately in a proposed new section and we can discuss the details when we come to it.

Subsection (1) provides for an interim order to be made on an ex parte application by a chief superintendent or an authorised Revenue official to freeze any property which appears to be the proceeds of crime and has a value of £10,000 or more. The order will last for up to 21 days and once made can be challenged by any person protected by it.

Subsection (2) provides for conditions or restrictions to be attached by the court to an interlocutory order. This is to give the court the flexibility it will need to deal with the complexities it will inevitably encounter in individual cases. Provision is also made for notice to be given to the respondent where reasonably possible or any other person affected by the order.

Subsection (3) provides for the discharge or variation of the order on application by the respondent or any other person with an interest in the property concerned. However, the order will not be discharged unless the court is satisfied the property is not the proceeds of crime or is worth less than £10,000. The onus of satisfying the court of this will therefore rest on the person seeking to have the order discharged.

Subsection (4) provides for the discharge or variation of an interim order on the application of the person who originally applied for it. For example, it could conceivably be the case that the Garda or the Revenue Commissioners, after the making of an interim order, come into possession of information which casts doubt on the original application. In such circumstances there should be provision for them to seek to have the order discharged and for the court to grant that application.

Subsection (5) sets out the duration of an interim order. The basic time limit under subsection (1) is 21 days but account must be taken of any subsequent application for an interlocutory order. Paragraph (a) provides that, if an application for an interlocutory order is brought within the 21 days duration of an interim order, the interim order will last until the application for the interlocutory order is determined. Paragraph (b) takes account of the time during which an appeal might be brought against a decision on an application for an interlocutory order. Paragraph (c) takes account of the time taken to decide an appeal or, should there be one, a further appeal.

Subsection (6) provides for notice to be given of applications for discharge and variation of interim orders but not for the original application for an interim order because that is made ex parte. The Garda or the Revenue Commissioners will have to give notice to the respondent of an application for the discharge of an interim order unless the court is satisfied the respondent cannot reasonably be found. Similarly, the respondent or any other person who applies to have an interim order varied or discharged will have to give notice of this to the Garda or the Revenue Commissioners. In addition, the court may direct that notice be given to any other person. This could be someone who, while not the subject of an interim order, is nevertheless affected by it.

The Bill as published provided that the legislation would apply to organised crime, which we defined as meaning any criminal activity organised, undertaken or performed by two or more persons involving the theft, illegal acquisition and or destruction of property valued in excess of £10,000 or the distribution of controlled drugs within the meaning of the Misuse of Drugs Acts, 1977 and 1984. The word "larceny" should have been used instead of "theft" and we have an amendment to that effect later. The reason we did not extend it to all crime was that we had a slight concern that, if we did so, the discretion available to us in dealing with drugs and organised crime might be overstretched, in the sense that we would move into other areas of criminal activity, and we were concerned that there might be a constitutional problem in that regard. The Government, presumably on the advice of the Attorney General, has extended the terms of our legislation to include all criminal activity and that is the highest compliment it could have paid to the constitutionality of the legislation. It also means those who said the Attorney General had advised the Government the Bill was unconstitutional were not telling the truth and that is a serious matter.

That much having been said, I welcome the Minister's proposal to extend the legislation to include the proceeds of all crime. On balance, it should stand the test of constitutionality and it is my great wish that this be the case. In this context, Deputy O'Donnell is correct to say there was a Supreme Court decision reflecting on the potential damage to society from the use and distribution of controlled drugs. The Supreme Court, recognising the growth of the problem in society, described it as a pernicious evil and said the Legislature, within the parameters of the 1937 Constitution, could viably and rightly exercise a wide discretion in order that the interests of the common good would be reconciled with the rights of individuals. That judgment will have a great bearing on the Supreme Court when and if this part of the legislation is challenged.

Section 3 of our Bill as published deals with interim orders and in the amendment the Minister deals with precisely the same topic, which will be in section 2 of the Bill when amended. I accept these amendments because they replicate the provisions of section 3 of the Bill as published. However, I am concerned that that replication is carried out in a fragmented manner. Section 3(1) of the Bill as published provides that:

The High Court, upon an application being made to it ex parte by a member of an Garda Síochána not below the rank of Chief Superintendent or by a Revenue Commissioner, may, if satisfied on the balance of probabilities that the person in respect of whom the application is made is in possession or in control of the proceeds of organised criminal activity or assets acquired directly or indirectly from the proceeds of organised criminal activity, make an interim order restraining that person, or any other person notified of the making of the order, from disposing or otherwise transferring the ownership or diminishing the value of any or specified assets for a period of twenty-one days or such longer period as the Court considers just.

That subsection sets out in graphic terms the onus of proof which would be required for an interim order or interim freezing order to be made. As amended, the legislation will provide that the onus of proof, which is dealt with clearly in section 3(1) of the Bill as published, will come under the terms of section 8(2). In the amended version of the Bill, section 8(2) provides that, as in civil proceedings, the onus of proof will be based on the balance of probabilities. A different form of wording is being used to achieve precisely the same objective.

Aside from the question of the Bill being extended to cover all crime, its amendment to shift the onus of proof on the issue of disposal to the respondent and some ancillary or consequential provisions, the legislation is precisely the same as the Fianna Fáil legislation. Taking the amendment under discussion as an example of the position I outlined, why has the Government decided to deal with the onus of proof in section 8(2) of the amended version of the Bill when it is clearly set out in section 3(1) of the Bill as published? It is clear that the amended version is more disparate and less readily comprehensible to a casual reader. I do not propose to oppose the amended version but what is the amendment designed to achieve? In posing that question I would probably achieve as much or more satisfaction by asking "Who's Afraid of Virginia Woolf?".

It seems that section 2 goes further than the legislation originally proposed by Deputy O'Donoghue which was confined to the proceeds of certain types of crime committed by two or more people in concert, namely organised criminal activity. The Government's amended legislation deals with all conceivable types of crime, including tax evasion. The connection between the property and the crime can be far looser than originally designated under the original legislation.

From that point of view I am mystified as to why a statement, purportedly issued by the Attorney General, was published in the Sunday Business Poston 7 July, to the effect that the legislation introduced by Fianna Fáil was definitely unconstitutional. That is inexplicable. In his earlier reply, the Minister of State did not explain the genesis of that statement. He did not take the opportunity to indicate that the Attorney General made no such statement or that the Government did not believe the Fianna Fáil legislation was definitely unconstitutional. I would appreciate if the Minister of State denied that report which stated in the most definitive terms that the Fianna Fáil legislation was unconstitutional and quoted the Attorney General as the source. I would like that matter to be clarified before the Committee Stage concludes.

Will the Minister of State consult the Revenue Commissioners before Report Stage to see how the change in the legislation relating to authorised officers of the Revenue Commissioners will operate? I can see great dangers if the Revenue Commissioners designate a number of officials to go before the courts on a regular basis in cases where assets are seized. It is not to dramatic to state that such individuals will become targets. Is it the intention of the Revenue Commissioners to authorise different officers, perhaps local tax officers, for different cases or simply to designate a specified number of officials to attend court on every occasion when the assets of a crime overlord are being seized? I believe this would create great danger for the individuals selected and I cannot imagine that staff in the Office of the Revenue Commissioners will volunteer for that task.

While it is long and detailed, in some cases the amendment marginally improves the Fianna Fáil legislation but it does not add anything of substance. I will not re-enter the paternity dispute. However, will the Minister of State clarify the statement attributed to the Attorney General in the Sunday Business Post on 7 July? Will he also deal with the situation relating to the change in how the Revenue Commissioners will present their case for the seizure or freezing of assets?

Members have repeatedly referred to an article which appeared in the Sunday Business Post on 7 July as though the author of that article were present at this meeting. Deputy O’Dea is aware that is not the case. It is not possible for the Minister of State to comment on the contents of a newspaper article. Was the article attributed to a journalist?

I will be happy to read it into the record.

It was read into the record on a number of occasions. However, the Deputy's question cannot be answered at this meeting.

We would like the Minister of State to comment on the article, he need not answer my question.

The new section provides for the making of an interim order to freeze property that constitutes the proceeds of crime or property which was acquired, in whole or in part, in connection with the proceeds of crime above the value of £10,000. It should be noted that the order can be made not only against the person whose possession or control of property gave rise to the application but against any other person. An innocent party with a joint interest in a property, in which another share is acquired by a person using the proceeds of crime, can also be restrained from dealing with that property. Will the Minister of State consider this issue because there is a possibility that an innocent party could purchase a bona fide share in a property and find it being frozen. An innocent party could be negatively affected by the legislation.

One of the reasons for this legislation is that there is an unlimited capacity for genius among the criminal population. They have a capacity for duplicity, moving in legitimate circles and presenting themselves as legitimate business people. We must be careful that innocent people who might be involved in part ownership of property would not have their property seized because of these measures. I did not put down an amendment on this but we should raise it here to see if the Government and the parliamentary draftsman have satisfied themselves that there is enough protection from potentially harming and impacting negatively on bona fide, innocent people who might have joint property interests with suspected criminals.

The effect of this amendment is, as mentioned, that it applies to any crime, not just organised crime. We set out to tackle organised crime and I appreciate that this amendment is much broader and will include any crime the proceeds of which could be valued over £10,000. Given the general crime situation, this is not a bad thing. The purpose of the amendment is to extend the effect of the Bill which was brought forward by Deputy O'Donoghue where he was attempting to specify organised crime.

The Sunday Business Post on 7 July 1996 stated: “the Fianna Fáil Bill to confiscate the assets of criminals which passed Second Stage in the Dáil last week is unconstitutional according to the Attorney-General.” That is very direct; there is a suggestion somewhere that it might be. I accepted what Minister Owen said about concerns on that issue, and she is quoted in the article, but given that as a result of this and other articles there could be a constitutional question here, it took from what we are trying to do here in the House. It is an issue that has been raised again and again over the years to stop us doing our work and it was effective in the past. I am not suggesting that the Minister is doing this but it is a matter of broader concern than what is happening here now. Deputies on both sides have asked why this has not been done when we have recommended it so many times in the past, but, in effect, we are going further and relating it to any crime. It makes the delay in going along this route more ridiculous.

I welcome that this is tough legislation and urgent and immediate in its application; hence the interim order we are discussing now which allows assets to be frozen for a period up to 21 days. That would give the Garda Síochána the time they need in the early stages and they have wanted this measure to be extended not just to organised crime but to crime across the board because of the difficult situation they face. Something happened between Second Stage and Committee Stage which led to this wider extension and is one we accept given the current circumstances. However, it is extraordinary, given the impression that was created about the Bill when it was introduced, it makes you wonder what the purpose of the statement was in the first instance. As amended, the basic principle which we sought to get across of tackling the proceeds of crime, not when the person was convicted but when there was a clear suspicion and a reasonable probability that the assets and moneys had come from crime and being able to take action at that stage, will be a tremendous benefit. The Minister of State is going along that route which we support and he is also going along the route proposed by Deputy O'Donoghue of an ex parte application. That is a very severe measure and the kind we need at the moment. The Oireachtas is taking severe urgent action in providing measures for the gardaí to tackle this in an effective way. That was the purpose of Deputy O’Donoghue’s Bill. Amendments will do some tidying up on that Bill, but essentially we are doing what the Bill set out to do and are not restricting the proposals which he had to tackle directly the proceeds of crime not only in the drugs area, where the initial stimulus came from, but, also, on the wider organised crime basis, including any crime yielding a profit of £10,000. Let the criminals beware because this will be a very effective instrument as part of the total package in tackling crime.

I am confused about one of the most important aspects of the Bill, the nature of the evidence which will be sufficient to gain an order of the kind specified in the Bill. My understanding of what is provided for in the original Bill is that evidence on affidavit from a relevant person will be sufficient to gain an order provided that opinion has been formed on reasonable grounds and section 3 of Deputy O'Donoghue's Bill also says that has to be on the balance of probabilities. As I understand it the effect of the Government's amendments is to make it more disjointed in that the amendments to section 8 which set out the nature of the evidence say that evidence, either oral or written, from the relevant person shall be admitted and it goes on in a separate subsection to say that the question shall be determined on the balance of probabilities. I understand the intent of Deputy O'Donoghue's Bill, but the Government's amendments have the effect of providing two separate tests which may or may not be sufficient. While I understand that Deputy O'Donoghue's Bill says that "the opinion evidence reasonably formed is sufficient" it is not clear that that is the effect of the Government's amendments and I would like the Minister of State to spell that out.

To what section is Deputy McDowell referring?

Sections 3 and 4 of the original Bill and Government amendment No. 9. Is opinion evidence sufficient under the amendments? It is clear in the original Bill but is not clear in the amendments.

I thank Deputies for contributing on this important section. It seems I will be forced to comment on an article in a Sunday newspaper that I have not seen. I am not sure why it is so important in the context of what I have said. I did not make the statement nor did the Minister for Justice. I am also sure, although I have not spoken to him, the Attorney General did not make it.

Deputy Woods put a slightly different character on the statement which, if it were true, would concern me. He asked why somebody has been trying over the years to stop the Legislature from doing what it believes is right. That was an interesting dimension to the Deputy's contribution in the sense that one can infer from it that perhaps previous Governments were not as inactive on this front as we thought and perhaps they tried to do certain things. The implication is that advice was given that these things could not be done for vague constitutional reasons. I do not know about that aspect. All I know is what I outlined to the committee on the earlier Stage which is that the Minister for Justice said the Bill gave rise to concerns on constitutional grounds which warranted scrutiny and careful study. She made that assertion in the face of the full-blooded certitude from which Deputy O'Donoghue is now seeking to retreat.

On 2 July, in the course of the Second Stage debate on the Bill, Deputy O'Donoghue declaimed "Let there be no doubt that this Bill is constitutional in its present form". The Minister for Justice simply said she could not proceed with the same certitude and her advice was that it caused concerns which ought to be studied. If memory serves me, she made the point to two colleagues of Deputy O'Donoghue, who were former Ministers for Justice, that they would agree that she could not proceed if there was any constitutional doubt without exploring that, taking advice on it and proceeding on the basis of expert opinion. However, she did not say the Bill was unconstitutional nor did anybody else. If that had been the case the Government would not have accepted the Bill on Second Stage. Perhaps I am not in a good position to chide Deputy O'Donoghue for playing politics with this because I spent a long time in Opposition. However, I doubt that the public is concerned about whose Bill it is, who had the idea first and who said it was unconstitutional. Deputy O'Donoghue said he is satisfied that the five pillars of the Bill remain intact. They might have been five rickety pillars built by a gerry builder in the black economy but the foundations have now been dug and the five pillars are now shining, new, properly plastered and painted and they will withstand the test of time. Surely that is what we are seeking to achieve.

Deputy O'Donnell asked about third party innocents in involvement in the ownership of or control of property that is sequestered under this section. We are dealing with property which is the proceeds of crime. We are not dealing with whether an individual has committed an offence. If a person is unfairly affected by an order he or she can seek to have it discharged or varied and ultimately the person can seek compensation. The Deputy voiced a genuine concern but the response is the Deputy's apposite introduction of the Supreme Court decision which referred to the pernicious evil in society with which we are attempting to deal and, in those circumstances, the Legislature has wide discretion. That is what we are seeking to apply in the Bill. We know how pernicious the evil is and Deputy Gregory has outlined it strenuously over a number of years.

There is a risk of an innocent third party unknowingly being in business with a person who might be the subject of this order and who is involved with or has control of property. However, in such circumstances the third party has the right to seek to have the order discharged or varied. Ultimately, the person has the right to seek compensation if he or she is at a loss as a result of the sequestration.

The practical difficulty of limiting the Bill to certain offences was raised by Deputies O'Donoghue and Woods. Deputy O'Donoghue welcomed the broadening of the definition and sees it as a compliment endorsing the original constitutionality of his measure. The practical difficulty in limiting the Bill to certain offences is that it could make it more difficult to show that property is the proceeds of these offences. It could lead to a perverse defence that property is the proceeds of an offence not covered by the Bill. We must remember that criminals who are involved in drugs are often involved in committing other offences as well.

Opposition Deputies should welcome the change. It would be difficult to encompass every offence explicitly in the legislation. In fact, the offence may not be committed by the person in possession of the goods or property. It can be difficult in some circumstances to show that property is the proceeds of particular offences so broadening the definition throws the net wider. It is welcome for that reason.

Deputy O'Dea queried the provision regarding the Revenue Commissioners and an authorised officer. That is an operational matter for the Revenue Commissioners. The Deputy's point about designated officials being at risk is a serious matter. However, to leave the Bill as drafted, in which it designates a Revenue Commissioner, does not remove the risk. The Revenue Commissioners are fewer in number and their identities are no secret. That is not being circumvented here. Deputy O'Donoghue did not stipulate that it should be the Garda Commissioner and we do not stipulate that it should be the Revenue Commissioners but rather persons, at an appropriate level, authorised by them. I do not want to open the debate that Deputy Woods invited me to follow in terms of reports in the newspapers about agencies. The Minister for Justice will deal with that matter in due course. Hopefully all the measures being contemplated are with a view to enhancing the efficacy of the legislation and its effective implementation.

On the question of the civil standard of proof applying, in other words, the balance of probability, opinion evidence is still acceptable except that our view, on the advice available to us, is that this is a better and more effective construction than the piecemeal approach taken previously. This establishes a central provision from which all else comes and, therefore, it is likely to be more effective in the myriad of different circumstances that could arise. The opinion given by the chief superintendent in the manner the Deputy described continues to apply in the case of the changes made here.

To answer Dr. Woods' question, the intention does not change. The same people are being targeted. They are the crime godfathers, drugs barons, leaders of organised crime and so on. As we have discovered before and as recently as the Criminal Justice (Public Order) Act, 1994, legislation enacted with the best of good intentions has proven not to be as effective in all circumstances as the legislators would have liked. It is not that the target has switched but that a more comprehensive approach is necessary if we are to deal with the menace in our midst. Nothing has changed in that regard.

In some states of the USA, if drugs are found in a vehicle in transit, it is immediately confiscated. If they are in a truck, it and the goods being transported are confiscated. If drugs are found on a property, such as a private house, the house is confiscated. Wherever drugs are found, the property on which the drugs are stored or being conveyed is immediately confiscated by the State, offered for sale, and the money used to fight the anti drugs campaign and the drug barons. What is the Government's view on such strong action being taken?

The Minister used a facile argument which deserves a facile response but I will try to avoid that. I said "let there be no doubt, the Bill is constitutional". I referred to the original Bill. I will say it again so that the Minister understands it. Let there be no doubt, the original Bill is constitutional. That is my opinion. I learned at around the age of seven that I was not the Supreme Court and at the age of 14 or thereabouts I learned that the Supreme Court decides whether legislation is constitutional. It is my opinion that the Bill is constitutional and I have no doubt about that. I have outlined the reasons for that on more than one occasion. They are contained in the 1985 case which I referred to this morning in which Mr. Justice Barrington stated that while goods or assets frozen on the opinion of the Minister for Justice constituted a delimitation of property rights within the meaning of the 1937 Constitution, nonetheless that delimitation was in the common good and, in those circumstances, the Offences Against the State (Amendment) Act, 1985, was constitutional.

Under the Offences Against the State Act, 1939, the opinion of a chief superintendent of the Garda Síochána that an individual is a member of an unlawful organisation can be accepted by the court. Since an individual can be jailed for up to seven years for membership of an unlawful organisation it follows that opinion evidence advanced in the cause of freezing an individual's assets must be even more constitutional, to use that terminology, than the situation which exists under the 1939 legislation.

The Minister refers to the pillars of the legislation being in place and that they are now shiny new pillars. I do not wish to play on words, nor have I any wish to pillory the Minister, but those pillars at all times were grounded on very solid foundations. Whether they were shiny or not — there are those who would contend that the pillars of Rome, ancient as they are, are more beautiful than any modern pillars — there was, nonetheless, an attempt to ensure that no edifice would ever be built upon these pillars. That had nothing to do with the welfare of society or the fight against crime. While I cannot identify the individuals who sought to undermine this legislation, I do not need the Supreme Court to tell me it was done for political expediency.

If I am wrong and these people were concerned about constitutional matters, where are those concerns in the amendments brought forward by the Government? Not one single amendment before this committee today addresses the constitutional "concerns" expressed by person or persons unknown. The issue which arises then is whether the person or persons unknown were Svengalis; of course they were. The issue which then arises is who exactly was pulling the strings. I will leave that to the good sense of the Irish people to decide.

Far from addressing constitutional "concerns" the amendments broaden the scope of the Bill. The amendment put forward by the Minister complements in the highest possible manner the constitutionality of the legislation by broadening its scope to include all proceeds of crime. No higher compliment to the constitutionality of the legislation could have been paid than that because now the legislation is all encompassing. Why was that proposed if there were constitutional "concerns" in relation to the legislation?

The Bill provides at a later stage — I will not go into this in any great detail now — that the onus will be on the respondent rather than the State to establish whether a disposal order should be made by the court in relation to assets frozen for seven years. Our legislation proposes that the onus be on the State. We did that because we felt putting the onus in relation to the disposal of the assets on the respondent might raise constitutional concerns. There is no parenthesis this time.

If there were constitutional parenthesis concerns in relation to the legislation, why would one shift the onus of proof away from the State and on to the respondent? It is clear the Government opened the floodgates wider than we did in the original legislation and there was an attempt to knock the pillars of the legislation long before any edifice could be built on them. That much is history but it is important because history is the greatest teacher of all in the final analysis. The pillars were so well constructed that all the king's horses and all the king's men could not knock them down. I welcome this amendment.

I will not attempt to enter into competition with the Minister and Deputy O'Donoghue on this matter. I have some sympathy with the substance of what Deputy O'Donoghue said. I find a somewhat greater degree of clarity in the original Bill. I hope the Chairman will forgive me if I try to pursue the matter I raised a few moments ago. The constitutional question which arises must hinge on the nature of the evidence. Deputy O'Donoghue rightly pointed out that the Offences Against the State Act allows people to be imprisoned on the opinion evidence of a chief superintendent that they are members of an illegal organisation, which is right. However, there is an essential difference in that it is not the practice of people prosecuted under that section to dispute its constitutionality or to dispute their membership of an illegal organisation. Effectively, the section went largely unchallenged in the courts. That will not happen with the provisions of this Bill and we can be sure those targeted will challenge it. The question of constitutionality must rotate around whether opinion evidence is sufficient to get an order for disposal.

I refer to amendment No. 9 which seeks to amendment sections 2 and 3 of Deputy O'Donoghue's Bill. I am not clear if opinion evidence in itself is sufficient to get an order or whether there is a separate and an additional test of the balance of probabilities in terms of the overall argument. I would like the Minister to clarify that.

The point raised by Deputy O'Donoghue and the clarity being sought by Deputy Derek McDowell are not the same. Deputy O'Donoghue's aim is to establish that an unknown person has claimed his Bill was unconstitutional for reasons of political expediency. He is going to great lengths to adduce, in support of the constitutionality of his measure, amendments I have tabled. Since I did not claim Deputy O'Donoghue's Bill was unconstitutional, I do not have an argument with him. I repeat that nobody during this debate has given me any reference to show where the Minister for Justice said the Bill was unconstitutional.

In response to the certitude with which Deputy O'Donoghue declaimed his Bill was constitutional the Minister said her advice indicated that it gave rise to causes for concern about its constitutionality. She proceeded to study that advice, as did her advisers. These changes are before us today because the Minister is obliged to provide, in so far as she prudently can, that no constitutional or legal infirmity should remain in the legislation.

That is quite different from declaring the Bill to be unconstitutional. I cannot say with certainty it is constitutional as that is a matter for the courts. I, like Deputy O'Donoghue, can only expressed my opinion. According to the expert advice available to me, the Bill is constitutional and measures introduced here will make it more comprehensive, effective and stronger in terms of what it set out to do. To some extent, this is a circular argument.

I do not know how I can satisfy Deputy Derek McDowell who raised a different point which relates to the adequacy or otherwise of opinion evidence. I am not sure I understand how he has read section 8(1) to be less clear than the original Bill. Amendment 9 states:

8.—(1) Where as member or an authorised officer states—

(a) in proceedings under section 2*, on affidavit or, if the Court so directs, in oral evidence, or

(b) in proceeding under section 3* in oral evidence,

that he or she believes either or both of the following, that is to say:

(i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,

(ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes the proceeds of crime,

I cannot comment on Deputy Derek McDowell's point about the adequacy of that. However, it means opinion is the evidence being proffered and the court will have to be satisfied as to its adequacy.

The only thing about which I am not clear ——

Deputy Derek McDowell will be aware that is under section 8.

It is not because it relates to sections 2 and 3 of the original Bill.

You could argue that any section relates back to sections 1 or 2, in particular.

Yes, because the curious way we are doing this. This point has been elucidated at some length, so perhaps the Chairman might allow me to make my point. The difference is that section 4 of Deputy O'Donoghue's Bill states:

the opinion of a member of an Garda Síochána not below the rank of Chief Superintendent and/or of a Revenue Commissioner notwithstanding any rule of evidence and/or law and may act on such evidence if the Court is satisfied that the opinion has been formed on reasonable grounds.

That makes it clear that evidence is sufficient and does not require any sustaining evidence. Nothing to that effect appears in the Bill as it would be amended. It is clear that opinion evidence is admitted as evidence but it is not clear from the way section 8 is drafted if it would be sufficient in itself. Amendment 9 states: "The standard of proof required to determine any question arising under this Act shall be that applicable to civil proceedings."

It is not clear whether the Bill as amended would require two separate tests, namely the opinion evidence and determining the case generally speaking on the balance of probabilities. The original Bill seems to say that the court may act on the evidence of the oral evidence as given.

If we are agreed on the admissibility of opinion evidence, I would have thought that the actual opening lines of this amendment — going back to page 2 as distinct from page 10 — of the interim order are acceptable. Government amendment No. 2 (2) (1) to section 2, states:

Where it is shown to the satisfaction of the court on application to it ex parte in that behalf by a member or an authorised officer—

The court will decide. Belief shall be evidence provided there are reasonable grounds for it but the weight given to the evidence is a matter for the court. It may be sufficient but ultimately it may be a matter for the court as to whether it is satisfied at the interim or interlocutory stage that property is the proceeds of crime. In one sense, the point Deputy McDowell makes is not capable of being answered except in court.

The weight of the evidence shall be the value of the evidence. That answers it.

We have had a long debate on the constitutionality of this Bill. I readily accept that we could discuss this until doomsday but until the Supreme Court is asked to decide on it we will have no idea about it. We are dealing with a group of criminals who have lots of wealth. They will be able to pay for the best legal brains in the world. Private property is protected in our Constitution as is the common good, but we will never know exactly what will happen until it is challenged so it does not matter.

Last Tuesday an article appeared in the Irish Independent stating that legislators had 18 weeks holidays, yet this is the third week of those 18 weeks that I am sitting on this committee. Why quote a newspaper as proof of anything especially when it was a journalist’s view?

The question of constitutionality has been raised repeatedly. It is suggested that criminals will hide behind the Constitution and will be able to employ the best legal brains to protect them. Has any thought been given to the fact that we can change the Constitution if people try to hide behind it?

That is mentioned in the article. The Minister feels the Constitution will have to be amended.

It is some time since we heard a member of Deputy Wood's party arguing for changes in the property rights in the Constitution. Speaking on behalf of my party, we would welcome changes of a robust kind.

There should be no hiding place.

The debate on the constitutionality of the Bill has thrown up interesting responses. It reminds me of another committee dealing with legislation to dispose of horses which are also property but not of the same value. The Minister quite clearly said that the disposal of horses in certain ways would not be constitutional. Everybody on that committee, including most of the Opposition Deputies, accepted that argument without debate. I am surprised the debate is so intense when it comes to property which is more valuable than horses. I am not casting aspersions, but the exchanges lead me to believe that if this legislation is now free from the fear of being unconstitutional the other legislation could quite easily fall into the same category. There has been much detailed argument on the constitutionality of Bills and the fear of progressing in a certain direction. In future when this argument is made in committees we should challenge it to make sure the proposers are not using it as a means of avoiding serious legislative matters. I am not casting aspersions on the work of the other committee but the information gleaned from this discussion and the amendments to the Bill show that there are ways and means of going to the courts and disposing of property which will stand the test of constitutionality.

Whatever about dead horses, we have fairly flogged this amendment. In spite of the exchanges I gather there is agreement on all sides for the Minister's amendment.

Amendment agreed to.

Amendment No. 3 has already been discussed with amendment No. 1.

I move amendment No. 3:

In page 3, line 22, to delete "theft" and substitute "larceny".

This amendment was inserted to show that I was as adept at engaging in semantics as the Minister for Justice. However, as it is now superfluous, I will withdraw it.

Amendment, by leave, withdrawn.
Section 2 deleted.
NEW SECTION.

Amendments Nos. 1 and 2 to amendment No. 4 are related and may be discussed together by agreement.

I move amendment No. 4:

In page 3, before section 3, to insert the following new section:

3.—(1) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8—

(a) that a person is in possession or control of—

(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

and

(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000,

the Court shall make an order (‘an interlocutory order') prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person—

(I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or

(II) that the value of all the property to which the order would relate is less than £10,000:

Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.

(2) An interlocutory order—

(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

(b) shall provide for notice of it to be given, where reasonably possible, to the respondent and any other person affected by it.

(3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of, or of an interest in, any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (1) of subsection (1) applies, discharge or, as may be appropriate, vary the order.

(4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interlocutory order.

(5) Subject to subsections (3) and (4), an interlocutory order shall continue in force until—

(a) the determination of an application for a disposal order in relation to the property concerned,

(b) the expiration of the ordinary time for bringing an appeal from that determination,

(c) if such an appeal is brought, it or any further appeal is determined or abandoned or the ordinary time for bringing any further appeal has expired,

whichever is the latest, and shall then lapse.

(6) Notice of an application under this section shall be given—

(a) in case the application is under subsection (I) or (4), by the applicant to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts,

(b) in case the application is under subsection (3), by the respondent or other person making the application to the applicant, and, in either case, to any other person in relation to whom the Court directs that notice of the application be given to him or her.

(7) Where a forfeiture order, or a confiscation order, under the Criminal Justice Act, 1994, or a forfeiture order under the Misuse of Drugs Act, 1977, relates to any property that is the subject of an interim order, or an interlocutory order, that is in force, (‘the specified property'), the interim order or, as the case may be, the interlocutory order shall—

(a) if it relates only to the specified property, stand discharged, and

(b) if it relates also to other property, stand varied by the exclusion from it of the specified property.".

I thought Deputy O'Donoghue would be in good form this week after the performance in Pairc Uí Chaoimh last Sunday and that we could perhaps speed up the process here, but we will see how it goes.

The amendment provides for the making of interlocutory orders freezing property for up to seven years and corresponds to section 5 of the original Bill. Subsection (1) provides that where it appears to the court on the evidence of a chief superintendent or an authorised officer of the Revenue Commissioners that a person is in possession or control of property which is the proceeds of crime, then the courts will make an interlocutory order unless it is satisfied on the evidence of the respondent or another person that in fact the property is not the proceeds of crime or that it is worth less than £10,000.

In other words, once the chief superintendent or the Revenue official concerned makes out a case that property appears to be the proceeds of crime or to be worth more than £10,000 then the onus is on the person claiming to own the property to show that it is not the case. This is broadly in line with the corresponding provisions of the original Bill, although in section 5(7) of the Bill the mere existence of an interim order is sufficient, when an interlocutory order is applied for, to shift the onus to the respondent.

I propose that the Garda or Revenue Commissioners on applying for an interlocutory order must first make out a case before the onus can shift. This would be effective and, at the same time, more balanced than the provisions in the original Bill which would require the Garda or the Revenue Commissioners simply to point to the existence of an interim order, an order obtained without hearing from the respondent to shift the onus of proof to the respondent.

Subsection (2) provides for conditions or restrictions to be attached by the court to an interlocutory order. This will to give the court the flexibility it needs to deal with the complexities it will inevitably encounter in individual cases. Provision is also made for notice to be given to the respondent where reasonably possible or any other person affected by the order.

Subsection (3) provides for the discharge or variation of an interlocutory order on the application of the respondent or any person with an interest in the property concerned. The onus is on the applicant, however, to satisfy the courts that the property or part of it is not the proceeds of crime. Provision is not made for the discharge or variation of an interlocutory order purely on the grounds that the property is worth less than £10,000 because of the possible variation in property values over the lifetime of an interlocutory order. It would clearly be undesirable for a respondent to be entitled to the discharge of such an order solely on the grounds that the value of the property has depreciated to just under £10,000, while not having to make out any case that it is not the proceeds of crime. The result of this provision is that while property must be worth at least £10,000 to come within the scope of the interlocutory order, future variations in its value are not a factor in the continuance of the order. That provides for a change of Government or for when the economy is not so buoyant and property prices fall.

Subsection (4) provides for the discharge of an interlocutory order on the application of the Garda or the Revenue Commissioners. As with interim orders we clearly must allow for such applications, for example, where the Garda or the Revenue Commissioners come across information which materially alters the case they made to have the interlocutory order made in the first instance.

Subsection (5) sets out the details of how long an interlocutory order will remain in force. Essentially, it will remain in force until an application for a disposal order is made and that is intended to be seven years after the making of the interlocutory order but some variations have to be provided for. Paragraph (a) establishes the basic rule that the interlocutory order will last until an application for a disposal order is determined; (b) takes account of the time during which a disposal order might be appealed and (c) takes account of the time taken to actually decide an appeal or, should there be one, a further appeal.

Subsection (6) provides for notice to be given of applications for interlocutory orders. The Garda or Revenue Commissioners will have to give notice to the respondent of an application for an interlocutory order or for the discharge of such an order unless the court is satisfied that the respondent cannot reasonably be found. Similarly, the respondent or any other person who applies to have an interlocutory order varied or discharged will have to give notice of this to the Garda or Revenue Commissioners. In addition, the court may direct that notice be given to any other person. This could be someone who, while not the subject of an interlocutory order is, nevertheless, affected by it.

Subsection (7) provides for the discharge or variation of interlocutory orders where property covered by such an order is made the subject of forfeiture or confiscation under the Misuse of Drugs Act, 1977 or the Criminal Justice Act, 1994. In effect such 1977 or 1994 orders, being final orders arising out of criminal conviction, make an interlocutory order redundant.

Section 5 of the Bill as published deals with interlocutory orders and this is dealt with in amendment No. 4. There is little difference between this section and the section as originally presented. There are a few semantic differences, the principle one being the proviso at the end of section 3(1) of the amended version which states:

Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.

If there is a serious risk of injustice the court would not make an interlocutory order.

It is already part of our jurisprudence in decisions handed down by the courts that the High Court should never make an unjust order. It would be extremely strange if a court were allowed to make an unjust order. With all due respect, the question of there being an unjust order is superfluous. In any event that is not my concern.

What concerns me is the provision does not explicitly state that the onus of establishing there would be a serious risk of injustice rests with the respondent. It is completely unclear on whom the onus lies to establish that there would be a serious risk of injustice. If the words "by facts adduced in evidence by the respondent" were inserted after the words "is satisfied" it would meet my concerns.

I want to display magnanimity in face of the adversity we have experienced on this Bill. That is perhaps the best response one could give to begrudgery. I will suggest that the Minister amend the Bill on Report Stage so that the provision I have mentioned would read: Provided, however, that the court shall not make an order if it is satisfied by facts adduced in evidence by the respondent that there would be a serious risk of injustice.

If this provision is inserted there will, to use the Minister's favourite phrase, be complete certitude as to on whom the onus of proof lies. It is important that this level of certainty would exist in regard to the onus of proof. I humbly propose that this be taken on board.

Deputy O'Donnell has two amendments to the Government amendment.

I move amendment No. 1 to amendment No. 4:

In the fifth line of subsection (3), before "property" to insert "not".

I support the Minister's amendment as outlined. There appears to be a drafting error in subsection (3). That subsection provides that where an interlocutory order is in force, the respondent, or any other person claiming ownership or an interest in the property, can apply to vary or discharge the order. Under the Minister's wording the person seeking to vary or discharge the order has to establish that the property does constitute the proceeds of crime or was acquired with the proceeds of crime. I would have thought that the correct test for such a person is to establish that the property does not constitute the proceeds of crime or was not acquired with the proceeds of crime.

It seems that the word "not" is missing. I may be suffering from drafting dementia but if it is the respondent or any other person who is trying to discharge the order they should prove to the satisfaction of the court that the property is not a property to which——

To help Deputy O'Donnell — maybe I am also suffering from fatigue — is the point not provided for in paragraph (I) above which reads "that the particular property does not constitute . . ."? This subsection refers back to paragraph (I).

No, I do not see that. About which line is the Minister talking?

Why, then, when we are talking about the interlocutory orders in subsection (3)——

But it refers back to that. Subsection (3) reads:

. . . if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (I) of subsection (1) applies. . .

I accept that and I will not press the amendment.

The second amendment relates to the rights of the innocent party which we discussed in the context of an earlier amendment. I suggested that the grounds on which a court would be empowered to vary an existing interlocutory order should be extended to include a situation where the order, in its present form, creates injustice. Perhaps we dealt with this earlier when the Minister referred to the fact that sufficient care has been taken to balance the potential disadvantages to innocent parties throughout the Bill. If the Minister has nothing else to contribute to that, I will not press the amendment.

I want some clarification. It is clear what happens when an order of confiscation is made but there seems to be a seven year period in which nothing happens. Can a person who has a property worth £2 million enjoy it for seven years without the worry of it being taken from him? Is there any punishment involved in that seven year span from when that interlocutory order is made?

There is a distinction, as I understand it, between liquid assets and real property. In the case of liquid assets, their enjoyment will be prohibited under this legislation but, in terms of the instance to which Deputy Browne refers, the ultimate sanction is a disposal order but there is a seven year interim. The drafting requirements imposed on the Department state that this is both desirable and necessary, and that the property cannot be disposed of and the proceeds spirited out of the jurisdiction. Ultimately, he or she faces the sanction of a disposal order and the proceeds being determined by the court, either in the direction of the Minister for Finance, an injured third party or whatever.

On Deputy O'Donoghue's point about the phrase, "provided, however, that the court shall not make the order if it is satisfied that there would be a serious risk of injustice", I have no objection. Deputies understand that the reason the Minister for Justice, Deputy Owen, is not present is because she is concerned centrally in the discussions in Northern Ireland which are at a delicate juncture. I have no objection to reminding her that Deputy O'Donoghue would seek to have his suggestion considered on Report Stage but I feel the Deputy is not allowing for the court to form a view. That it is not just the facts adduced by the respondent but the court may form a view. For us to provide for a situation where the court did not have that discretion would probably not pass muster with the parliamentary draftsman.

Will the Minister put it to the Minister for Justice between now and Report Stage?

To tease out further Deputy Browne's point, it is generally accepted that in cases such as those with which we are dealing in this Bill money is often laundered through what, on the face of it, looks like a legitimate business. I am not clear about what the Minister said and what is in the Bill about whether it would be possible to carry on such an apparently legitimate business during the course of the time when the assets are frozen. The Bill uses the phrase "disposing of or otherwise dealing with property" so if, for the sake of argument, I had a business as a bookmaker, would I be prohibited from carrying on that business while my assets were frozen? Obviously, I could not sell the property or the business but could I continue in business?

The answer I have given in so far as it relates, for example, to a domestic residence applies. On the question of a business, the situation is that a person would be constrained from continuing to do business as a bookmaker, in the instance to which the Deputy referred, but he or she could apply to the court for a variation. The court may in some instances decide, although perhaps not in the instance of a bookmaker, that it is desirable that some aspect of the business should continue for reasons which seem justified to the court. The freedom is there to return to the court but one must clearly be able to make a case to the court as to why that should be the case. Subsection (1) of amendment No. 7 states:

At any time while an interim order or an interlocutory order is in force, the Court may, on application to it in that behalf by the respondent, make such orders as it considers appropriate in relation to any of the property concerned if it considers it essential to do so for the purpose of enabling the respondent—

(b) to carry on a business, trade, profession or other occupation to which any of that property relates.

Therefore, it is at the discretion of the court and the court will decide.

I welcome the fact that the Minister will bring my suggestion to the attention of the Minister of Justice, who, in turn, will bring it to the attention of the parliamentary draftsman.

Amendment No. 1 to amendment No. 4, by leave, withdrawn.
Amendment No. 2 to amendment No. 4 not moved.
Amendment No. 4 agreed to.
Section 3 deleted.
NEW SECTION.

On amendment No. 5, amendments Nos. 1, 2 and 3 to amendment No. 5 are related. Therefore, amendment No. 5 and amendments Nos. 1, 2 and 3 to amendment No. 5 may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 4, before section 4, to insert the following new section:

4.—(1) Subject to subsection (2), where an interlocutory order has been in force for not less than 7 years in relation to specified property, the Court, on application to it in that behalf by the applicant, may make an order (‘a disposal order') directing that the whole or, if appropriate, a specified part of the properly be transferred to the Minister or to such other person as the Court may determine.

(2) Subject to subsections (6) and (8), the Court shall make a disposal order in relation to any property the subject of an application under subsection (I) unless it is shown to its satisfaction that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constituted proceeds of crime.

(3) The applicant shall give notice to the respondent (unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts), and to such other (if any) persons as the Court may direct of an application under this section.

(4) A disposal order shall operate to deprive the respondent of his or her rights (if any) in or to the property to which it relates and, upon the making of the order, the property shall stand transferred to the Minister or other person to whom it relates.

(5) The Minister may sell or otherwise dispose of any property transferred to him or her under this section, and any proceeds of such a disposition and any moneys transferred to him or her under this section shall be paid into or disposed of for the benefit of the Exchequer by the Minister.

(6) In proceedings under subsection (1), before deciding whether to make a disposal order, the Court shall give an opportunity to be heard by the Court and to show cause why the order should not be made to any person claiming to be the owner of, or otherwise to have an interest in, any of the property concerned.

(7) The Court, if it considers it appropriate to do so in the interests of justice, on the application of the respondent or, if the whereabouts of the respondent cannot be ascertained, on its own initiative, may adjourn the hearing of an application under subsection (I) for such period not exceeding 2 years as it considers reasonable.

(8) The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.".

This amendment provides for making disposal orders and corresponds to section 7 of the Bill. The principle underlying this amendment and section 7 is the same, namely the ultimate disposal of property which has been frozen for a number of years but my proposals contain some variations and supplementary provisions.

The Bill envisaged applications being made for disposal orders after periods of either five or seven years. The period would be five years where the court was satisfied that the respondent was not the true owner of the property concerned and that the property is the proceeds of crime. The period would be seven years where the respondent had not filed adequate affidavits giving details of assets and income.

I am not proposing in this amendment that there should be such a dual approach. First, I have some concern about specifically providing for making a disposal order solely on the grounds that information has not been supplied to the court. It would be better to leave the sanction for any such failure to the court. Second, to require the court to be satisfied that the property is not the proceeds of crime without any obligation on the respondent to show that the property is of innocent origin may weigh too heavily against the purpose of these proposals.

If it is thought necessary when seeking to freeze property to place an onus on a person claiming to own the property to show some proof of innocent origin, what is likely to happen if that onus is removed to seeking the disposal of the property? Presumably, the property would, in many cases, simply be handed back with compensation, perhaps, as the State would no more be in a position to discharge the full onus of proof at the disposal stage than it would have been at the freezing stage.

Of course the practicality of procedures cannot be considered in isolation. There are constitutional considerations to be borne in mind on this issue as on the Bill in general. However, we must remember in placing a similar onus on persons claiming to own property at the freezing stage that the freezing of property is not a minor intrusion into property rights. The fact of the matter is that the freezing of property for up to seven years is a very strong measure indeed. Technically, it may be a temporary provision in the sense that it will come to an end after a number of years but in reality it is a very significant power. We, therefore, could not think only in terms of the provision for disposal orders bearing constitutional scrutiny but also the similar provision for freezing orders.

With these general comments in mind, let me turn now to the details of the proposal. Subsection (1) provides that an application for a disposal order may be made after property has been frozen for a period of seven years. This broadly corresponds to the period envisaged in the original Bill, which, as I say, prescribed two periods of five and seven years.

Subsection (2) provides that a court shall make a disposal order on application to it unless it is shown to its satisfaction that the property concerned is not the proceeds of crime. We should bear in mind that this property will have been frozen for seven years during which time any person affected will have every opportunity to seek to have the order discharged.

Subsection (3) provides for notice to be given of an application under this section to the respondent, unless he or she cannot reasonably be found, and any other person as directed by the court. Subsection (4) specifies the effect of the disposal order as depriving the respondent of any rights in the property and as transferring the property to the Minister for Finance or another person. It could be that the property might be identifiable as having originally belonged to a person from whom it has been unlawfully taken. In those circumstances, the court could order the transfer of the property to that person instead of to the Minister for Finance. Subsection (5) provides that any property transferred to the Minister for Finance is paid into or disposed of for the benefit of the Exchequer. Subsection (6) enables any person who claims to own the property concerned or to have an interest in it to be heard by the court before the making of the order. The court could then, if satisfied as to the person's claim to the property or to part of it, transfer the property to the person.

Subsection (7) provides for an adjournment on the request of the respondent or if the respondent cannot be found. It may be that the respondent might ask for more time to prepare his or her case or, if the respondent cannot be found, that the court would adjourn proceedings to give the respondent every chance to turn up and present his or her case. Subsection (8) provides that the court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice. This is a general and valuable safeguard, particularly in the context of the onus on the respondent to satisfy the court of the innocent origin of the property concerned.

I am happy to accept Deputy O'Donnell's amendment No. 1 to amendment No. 5. It may be that the revised draft will have to be tidied up. The parliamentary draftsman deserves an opportunity to look at it before Report Stage. However, the principle of what she seeks to achieve is acceptable. I regret I cannot accept amendment No. 2 to amendment No. 5. The present wording of subsection (4) of my proposed new section 4 is modelled on similar provisions contained in the Offences Against the State (Amendment) Act, 1985, and the Criminal Justice Act, 1994. The effect of subsection (4) is to deprive the respondent of the rights, if any, he or she may have had in the property. He or she may have no rights to the property if it is stolen property, hence the inclusion of the words "if any". On the making of a disposal order, all or any rights the respondent had in the property are foregone. The property stands transferred to the Minister or to such other person to whom it relates. It is correct to speak of such property rather than rights in the property being transferred in these circumstances.

I sympathise with the principle of Deputy O'Donnell's amendment No. 3 to amendment No. 5 which seeks "to delete "shall" and substitute "may be used to promote awareness of the dangers associated with controlled drugs within the meaning of section 2, subsection (1) of the Misuse of Drugs Act, 1977, or may". As a matter of general policy, the Minister or myself cannot support any proposal to create a fund or other mechanism where money which accrues to the State could be expended in a way other than through the Estimates approved by Dáil Éireann every year. It could create difficulties from the point of view of accountability and questions would be raised by the Comptroller and Auditor General about the departure from normal Estimates' procedure. In addition, any programme, such as the programme envisaged by Deputy O'Donnell to promote awareness of the dangers of drugs, must operate on a planned and predictable basis based on an agreed Estimate of the resources needed and an agreed allocation of those resources to the various aspects of the programme. It would not work for such a programme to depend to whatever degree on an arbitrary, uneven and unpredictable source of funding, such as the benefits of disposal orders. While I sympathise with the points put forward, I cannot accept the amendment. The moneys, however, are directed towards the Exchequer where the principle of Deputy O'Donnell's amendment can be met.

I move amendment No. 1 to amendment No. 5:

1. In the fifth line of subsection (1), after "transferred" to insert "subject to such terms and conditions as the Court may specify".

I thank the Minister for his response. As he outlined, section 4 provides for the disposal of property after it has been frozen for seven years. At present, the court has no power to attach conditions to a disposal order. The purpose of amendment No. 1 to amendment No. 5, which the Minister said he will accept in principle, is to give it the power to attach such conditions to enable it to make disposal orders which would otherwise be ruled out because of a serious risk of injustice to an innocent third party. It would strengthen the Bill if we empowered the court to attach conditions to a disposal order.

The purpose of amendment No. 2 to amendment No. 5 is to substitute "such rights" and delete "the property". The disposal order will deprive the respondent of his or her rights, if any, in or to the property to which it relates. Further, the order will vest the property in the Minister or any other person to whom it relates and the Minister may sell or otherwise dispose of the property. If, for example, the respondent has used the proceeds of crime to fund his share of the purchase price of a building held jointly with an innocent party, the building, rather than the respondent's share in it will be vested in the Minister. That is the reason I suggested the respondent's rights in or to the property, as distinct from the property itself, should be vested in the Minister. I accept the Minister's point that there are no legal rights when it is established that the property has been purchased from the proceeds of crime. They have been undermined by criminal association. It seems the property will be vested in the Minister, which could have implications for innocent parties who have a joint share in it.

Amendment No. 3 to amendment No. 5 is the same as a series of amendments tabled by the Minister of State at the Department of the Marine, Deputy Gilmore, when he was the Opposition spokesperson for Justice, to the Criminal Justice (No. 3) Bill, 1994. During Committee and Report Stages of that Bill we discussed the introduction of a confiscation procedure for the proceeds of crime and the establishment of a combat drugs fund. We proposed that such a fund would be an appropriate place for that money rather than allowing it to be swallowed up in the Department of Finance. The script from the Department of Justice is the same regardless of who is Minister. The Minister was told to say today that the concept was rejected by the then Minister in 1994 in relation to that Bill on the grounds that the Minister for Finance saw a difficulty in the departure from the normal Estimates procedure and in accountability problems with the Comptroller and Auditor General. The wheel has turned full circle. Again we have an idea put forward and again it is not possible to accept it. That is a difficulty with changing our procedures.

It is a shame that something like this which is practicable and popular cannot be accepted given that we are making groundbreaking changes in our law. Such use of confiscated funds is widespread in some American states where they have confiscation procedures for the proceeds of drug trafficking. These are ploughed directly into therapeutic and health programmes to deal with the victims of the crimes from where the proceeds came. That is the purpose of my amendment.

I must accept the views of the Department of Justice, the Government and the Minister for Finance that this would interfere with Estimates and that there would be a danger of a lack of accountability. I refer the Minister in the interests of history to the eloquent contributions on Report and Committee Stages of Deputy Gilmore and the Minister of State, Deputy Gay Mitchell——

The irony lacking is that the reply was not from Deputy O'Malley when he was Minister.

That is correct. Deputy Geoghegan-Quinn speaking for the Government had to make the same comment as Deputy Rabbitte did representing the Government.

This amendment seems appropriate since we are so pressed in terms of Government spending on the demand side. The Minister will be aware of this with his new brief in spearheading the response to reduce that demand and I wish him well. Only £7 million pounds will be spent this year by the Government on this and all the centres which run drugs therapeutic programmes, Coolmine, Rutland, the Merchant's Quay project, and they are always strapped for cash. It would be a sensible approach if confiscated proceeds were channelled back to people who need them most. It seems the powers that be will not have it, but perhaps we can revisit it on Report Stage and maybe the Minister for Finance can be persuaded by the Minister of State at the Department of Finance to look more favourably on the proposal.

I withdraw the two latter amendments. Will the Minister accept the first one in whole?

The original Bill as presented envisaged that the High Court would have power to make disposal orders in respect of frozen property. The amended version also provides for that. We provided that affidavits could be sought by the courts in the event of an interlocutory order being made and the affidavit would require the respondent to tell the court from where precisely they got their assets, their source of income for the last ten years, and to set out precisely their assets. We also provided, in the event of no affidavit being forthcoming or of a refusal to file one, that after a period of seven years the court could make a disposal order. Similarly, when five years had passed from the date of the interlocutory order, the High Court could make a disposal order if satisfied on the balance of probability that the assets were the proceeds of organised crime. We also provided that if the true owner of the assets could be identified, the court could direct the transfer of the assets to that person. Where they could not be identified, the court could direct the assets to be transferred to the State.

The only significant difference between the legislation as presented and the amendment as put forward by the Minister would appear to be onus of proof. I do not regard affidavits being dispensed with as a significant alteration because the disposal order can be made after a period of seven years if the court is satisfied that the goods are the proceeds of organised crime. Should I now say, "if the court is not satisfied", because in the Government's legislation the onus of proof has been shifted to the respondent. The Minister has taken legal advice on this and I presume the Attorney General has advised that this is legally acceptable. It would be of considerable assistance to me and to the committee if the Minister disclosed that specific advice. I approve of constitutional adventure as much as I approve of laws being enacted to make life uncomfortable and unpleasant for criminals. As it appears to be constitutionally adventurous and if it is permissible to maintain the reversal of the onus of proof to the disposal stage, I am in favour of it being maintained.

The reason the Bill as presented provided that the onus of proof would shift on to the State when the disposal order stage arrived was that we did not have the legal precedent, or none came to my notice, which would allow for the onus of proof to be shifted to the respondent. We had a precedent, which I outlined earlier, to establish that opinion evidence could be accepted in relation to a freezing order. We had evidence that the delimitation of property rights in the common good was an acceptable mechanism for the Legislature to use because of the decision of Mr. Justice Barrington in Clancy and McCartney v. Ireland and the Attorney General. It is interesting to recall that particular judgment because it is of importance in the onus of proof.

The Offences Against the State Act, 1985, was enacted on 19 February 1985 and, the following day, the Minister for Justice, in accordance with the terms of the legislation, directed the Bank of Ireland in Navan, County Meath, to pay into the High Court the sum of £1,750, 816. 27 which was held at the time in a joint account in the names of the plaintiffs Mrs. Clancy and McCartney. By a plenary summons dated 29 March 1985 the plaintiffs sought declarations in the High Court that section 22 of the 1939 Act and sections 2, 3, 5, 6, 7 and 8 of the 1985 Act were invalid having regard to the provisions of the Constitution. Section 2 of the Offences Against The State Act, 1985, provided that where the Minister was of the opinion that certain moneys held by a bank would but for the operation of section 22 of the 1939 Act be the property of an unlawful organisation, he was empowered to freeze those moneys and order the bank to pay them into the High Court, where, after six months, they might be paid out to the Minister on his ex parte application and paid to the Exchequer. Section 3 provided for payment of moneys by the High Court to any party claiming within six months to be entitled to them, if the court was satisfied that section 22 had not had effect in relation to the moneys and that the person was the owner of the moneys. Mr. Justice Barrington, in refusing the declarations sought by the applicants in the case, said that, despite reversing the ordinary onus of proof by placing it on the owner of property seeking to establish his entitlement to it, the machinery of the 1985 Act nevertheless provided for a fair hearing and compensation in cases of error, as does our legislation and the amendment put forward by the Minister. The judge went on to say that it thus constituted no more than the permissible delimitation of property rights in the interests of the common good and was not, therefore, an unjust attack on private property. This is contrary to Articles 3 and 43 of the Constitution. Reversing the onus of proof in this case on to the respondent may be within the parameters of the 1937 Constitution. It is my sincere wish that that proves to be the case. There is little precedent for this so the Attorney General must have had good reason to say that the onus of proof could still rest on the respondent up to the disposal stage.

Why is it considered that when we are dealing with the disposal of the property the onus of proof can still rest with the respondent? We had good reason to believe that the onus of proof could rest with the respondent in the case of a freezing order and that opinion evidence would be acceptable to the court, but we may be in uncharted waters. If we are will the Minister of State point out why it is considered constitutional? It again underlines the constitutionality of the original Bill because the reversal of the onus of proof is yet another compliment to its constitutionality. That Bill was more restrained and more constrictive in regard to the onus of proof as it was in terms of what types of assets could be frozen or disposed of. We said that it should be the proceeds of organised crime only, having earlier defined that.

It has been well established that the nonsense about it being unconstitutional was just a game which I have outlined adequately. Why is it presumed it would be constitutional to shift the onus on to the respondent at the disposal stage? I welcome that amendment which I regard as the principal non semantic difference between the two sections provided that we can be satisfied that it is constitutional.

Most of the discussion today centred around the question of property and I assume that we are considering also the question of businesses. Businesses that could be under investigation under this Bill could be large employers. The last line of subsection (6) refers to persons who may have an interest in the disposal of property and who will have access to the court and will be able to make adequate representation. Will the court have enough discretion to take into account the interest of people other than the persons who are being dealt with by the court such as factory workers who find themselves in a position where the business is about to be disposed of? Will the Minister of State reassure me that this legislation will allow sufficient discretion in the courts to deal with that aspect of the issue?

I consider, as Deputy O'Donoghue does, that there may be some constitutional adventurousness in this section. I am not clear whether it is necessary for the applicant to revisit the evidence that has already been given at the interlocutory stage — the interlocutory stage having been at least seven years beforehand. If that is the case, which it is from my reading of the Bill, that increases my concerns along the lines that Deputy O'Donoghue has outlined. I know that Deputy O'Donnell has withdrawn her amendment but since I supported her when she tabled it two years ago, I support her again. The creation of dedicated minimum funds is not something unusual, as the Department of Finance would have us believe. Years ago there was a doubt as to what could be done with parking fines or moneys from bail. The Dáil subsequently decided that they could be dealt with in a particular way. The principle that Deputy O'Donnell is attempting to create in this amendment is not peculiar or one that we should be in any way nervous about.

I support the same principle on amendments Nos. 3, 4, 5 which Deputy O'Donnell has withdrawn with the intention of raising them again on Report Stage. As the Minister of State indicated he had sympathy with the idea, can it be explored further so that the intent of the amendment can be met? Like many people I believe that the proceeds of drug dealing when seized by the State should go to the victims of drug dealing. I find it difficult to accept that where there is the will to do something like that and where there is the belief that it is right to do it, a mechanism cannot be found whereby such a dedicated fund can be set up to help many of the voluntary and community organisations who, in the Minister's words, "should not be subjected to unpredictable sources of funding". Many of them do not have any sources of funding and are trying to raise their own moneys or operating strictly on a voluntary basis trying to create awareness about the perils of heroin in particular. I am certain that all of the organisations that are doing a great deal of work that the State, perhaps, should be doing in this field, would welcome additional unpredictable funding. None of us expect that millions are going to flow into this fund in the first number years but the principle should be established. If there is, as there seems to be, consensus that this type of fund should be set up and that this is where the proceeds of drug dealing in particular should go, we should make every effort to find a mechanism to do that. The Minister of State should take on board what has been said and between now and Report Stage try to find a mechanism to do this.

I encourage the Minister of State too to find a way out. It would be wonderful to think that money seized from drug barons who have caused so much misery would be given to help people caught up in the drugs scene. I understand the Minister of State's reply, because I heard it before when I was in Opposition, that only the Minister for Finance can administer the funds and decide what goes where. It would be nice to think that this money would go to help a serious problem rather than being advanced to fix potholes and so on down the country.

On the practicalities of confiscating property, amendment (5) (4) (i) that the Court "may make an order . . . . . directing that the whole or, if appropriate, a specified part of the property may be transferred.." How practical is it to get people to purchase the property of a drug baron? If somebody owned a block of flats, who would benefit from the confiscation? Would the property have to be sold or could the State continue as landlord and collect the rent each week? It could be a complicated matter. Will the State be able to sell such property? It is hard to anticipate what the court will decide, but the Minister of State is a wise man so perhaps he might have some idea.

If the committee sits through August we might be able to work it out.

We will be here until September if the Deputy joins in.

The substantive issue of the shift in the burden of proof has been dealt with by Deputies O'Donoghue and McDowell. As regards drugs and the current emergency, the Department of Finance will be reluctant to establish a precedent. However, there are various ways of providing the extra funds. A Member mentioned a fund which was distributed some time ago. I understand it was the funds of suitors.

It was more than that. There is no doubt that funds are scarce in this area. I accept that under the Constitution, moneys must be accounted for through Estimates which are presented to the House. Nevertheless, there are ways around these matters. In some areas, for example, three year funding is guaranteed to groups and it is accounted for through the Estimates each year.

There is a tremendous need not only for medical treatment where that is possible but also for rehabilitation. It is obvious — there is a good example in Cork — that there is a need for a follow through for these people. The problem arose initially from a lack of self-esteem and opportunities. There is a need for tremendous resources in this area and it would be worth looking at how this might be done on Report Stage.

Although the Department of Finance would support and see merit in the idea it would fear that a precedent would be set which could be invoked in other areas where people seek dedicated moneys. However, the Minister of State should consider it for the future. It has been done in other countries.

I strongly support the principle of the amendment. The legislation applies to the proceeds of all crime and not just drug related crime. Organised crime is inextricably linked to the drugs trade and people who have risen to the top of organised crime can hardly have done so without having some involvement in drug trafficking.

The overlords of organised crime, drug barons and so forth, in so far as the media have been able to identify them under our restrictive libel laws, appear to come from deprived areas in Dublin and the supreme irony is that their rise to fame and fortune has been fuelled by a generation of addicts who are also largely from the same areas. It would be simple justice if the proceeds of their ill-gotten gains, in so far as they can be seized by the State, were used to help those people overcome the effects of the addiction or at least to prevent some of them getting involved in drugs.

There is precedent for this in the United States, although I am not sure about the United Kingdom. My only reservations if such a fund were dedicated would if the Department of Health and other Departments involved in funding for this area believe they could give less because of the existence of the dedicated fund? If we could frame a mechanism to overcome that difficulty the idea, in principle, is excellent.

The Minister has heard the committee's views on Deputy O'Donnell's amendment. She withdrew it before Members spoke on it but, if it were put to a vote, it would present Members with some difficulty. I ask the Minister of State to convey to the Minister for Justice the unanimous view of the committee in favour of Deputy O'Donnell's amendment or at least the principle of it and the importance of such a vehicle to provide a form of compensation for people who have suffered as a result of the drugs problem. The funding could be divided between those who have suffered and need rehabilitation and further law enforcement. I hope the Minister of State will convey our strong views on that.

Does Deputy O'Donoghue accept amendment No. 5?

Has the Minister of State any further comment?

Deputy O'Donnell's amendment has compelling logic. I indicated I was sympathetic towards it when I moved my amendments. I note the chairman's comments and that they represent the views of all the parties represented here.

I suspect Deputy Woods is right. He has experience of these matters. The precedent would cause tremors in the Department of Finance because there is an accountability dimension. Above all, a precedent would be created. The traditional role of the Comptroller and Auditor General would also have to be taken into account while, theoretically, there is the provision that moneys arising from the disposal of property in the meaning of the Bill goes to the Exchequer unless otherwise directed by the court.

Deputy Gregory pointed out that there ought to be planned prevention and maintenance programmes and so forth. However, there is not in all cases and some community groups struggling to combat the drugs scourge do not have access to significant moneys. There is, as has been argued, a symmetry and justice in the thrust of Deputy O'Donnell's amendment which is that the victimes of the drug moguls ought to be given high consideration in terms of the moneys secured from sequestration and disposal of assets. It is a compelling argument. I will faithfully relay the committee's views to the Minister for Justice and the Government. I presume the Minister for Justice will be back for Report Stage although this has been such a polite experience that if greatness is again thrust upon me I will do my best to take up the banner. I imagine that very trenchant views are held on the question of the precedent that will be created by dedicating such a fund but we will deal with that when it arises. I notice that there will be unanimous support for any breakthrough that is made.

Revisiting the constitutional question or, more specifically, the question of the civil standard of proof, I interpret Deputy O'Donoghue as saying he acknowledges this amendment strengthens the Bill and makes it more effective. He supports that but is concerned there may be an element of what he calls constitutional adventurism involved. He seeks to be reassured on that point. All I can do is reassure him that the advice the Government has is that we may place the onus of proof on the respondent in these circumstances.

I draw Members' attention to section 3 of the Offences Against the State (Amendment) Act, 1985. The relevant section says that a person claiming to be an owner of moneys paid into the High Court pursuant to section (2) of this Act may, within six months of the day on which the moneys were paid into the court apply to that court for an order directing that the moneys, together with such amount in respect of interest. . .

If that court is satisfied that section 22 of the Principal Act has not had the effect in relation to the moneys that the person is the owner of the moneys, it shall make the order aforesaid.

Effectively the onus there is on the owner of the moneys. Similarly I draw the attention of the Members to subsection (3) of this amendment which says the applicant shall give notice to the respondent unless the court is satisfied that it is not reasonably possible to ascertain his or her whereabouts, and to such other, if any, persons as the court may direct of an application under this section.

Finally I draw the attention of the committee to subsection (8) which seems to be a belt and braces provision to reassure Deputy O'Donoghue on this matter. The court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice. That seems to provide the safeguard required in the situation we are dealing with. I am assured we are dealing with the situation appropriately. Otherwise I am sure Deputy O'Donoghue appreciates that the measure would not be as effective as he would like.

We have already had Deputy Brown's instance of the putative mansion owner who would continue to enjoy residing in the mansion for that period of seven years. The ultimate sanction held over his head is the disposal of the property. There is a danger that if the onus of proof was otherwise, the State might not be certain at the end of the day and the property would have to be handed back, whereas here the onus is on the mansion owner to show that the mansion was acquired through innocent means. If he cannot show that then the implications are clear.

We have all accepted in the general tenor of this debate that we are dealing in exceptional circumstances with a pernicious evil, as Deputy O'Donnell says. In those circumstances we are free as legislators to use our discretion to ensure that whatever measures are enacted will be effective. The answer to Deputy Walsh's question is that there is adequate provision in terms of a case being set before the court on behalf of an innocent third party. The particular reference he made to a person who has an interest in any of the property concerned refers to interest in the legal sense of that term. Deputy Walsh may be referring more to a person with a stake in the property, such as an employee. The point in any event is that reasonable provision would be made to bring to the attention of the court the views of an interested party.

Amendment No. 1 to amendment No. 5 agreed to.
Amendment No. 2 to amendment No. 5 not moved.
Amendment No. 3 to amendment No. 5 not moved.

I thank the Members who supported me. I thank the Minister for his response. We will revisit this amendment on Report Stage and perhaps there will be a better response from the Government.

I welcome the assurances given by the Minister in relation to the constitutionality of shifting the onus of proof onto the respondent. I acknowledge what he says in relation to section 22 of the 1939 legislation to which I referred. It could be said, in the sense that the legislation provides for a fair hearing for the respondent, it should come within the terms of the Constitution. I welcome the provision.

I did not get an answer to my question, which is whether it was necessary to revisit the evidence provided in getting the interlocutory order in the first instance when applying for a disposal order. If you do not have to put the evidence it is more difficult to again question it. I am not clear from the amendment whether it has to be presented again.

The evidence that would have been put forward in acquiring the interlocutory order?

Exactly. I wish to know whether that is again presented when a disposal order is sought, seven years later, or whether granting the interlocutory order is sufficient.

My understanding is that the fact that the interlocutory order is in place is adequate. The onus is on the respondent to show otherwise at any stage.

Amendment No. 5, as amended, agreed to.
Section 4 deleted.
NEW SECTION.

I move amendment No. 6:

In page 4, before section 5, to insert the following new section:

5.—(1) At any time while an interim order or an interlocutory order is in force, the Court may, on application to it in that behalf by the applicant, make such orders as it considers necessary or expedient to make to enable the order aforesaid to have full effect.

(2) Notice of an application under this section shall be given by the applicant to the respondent unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts and to any other person in relation to whom the Court directs that notice of the application be given to him or her.

(3) An interim order, an interlocutory order or a disposal order may be expressed to apply to any profit or gain or interest, dividend or other payment or any other property payable or arising, after the making of the order, in connection with any other property to which the order relates.".

This amendment enables the applicant to apply to the court for any necessary ancillary orders after an interim or interlocutory order has been made. The application would generally be on notice and would only be for the purpose of enabling the interim or interlocutory order to have full effect. The Bill, as it stands, makes no provision for the making of such orders when the original freezing order has been made. It would be prudent not to deprive the applicant of the facility if we are to ensure the Bill operates as intended and covers all eventualities, including those which do not come to light until the freezing order is in force.

The second part of my amendment is designed to ensure that profits, gains or interest arising on any property the subject of an interim, interlocutory or disposal order will also be caught by the Bill. In other words, if a deposit account is frozen, so too will any interest accruing therefrom. I hope Deputies will agree the provisions serve only to improve the effectiveness of the Bill.

I understand what the Minister said in relation to the second part of his amendment which is incorporated in subsection (3). However, the wording is peculiar. I take the Minister's point that he is trying to cover a situation where an interlocutory freezing order is made on a bank deposit account on which interest will fall due on certain dates or, perhaps, where a dividend is to be paid on shares. The amendment states: "after the making of the order, in connection with any other property to which the order relates."." The word "other" is confusing.

While the Minister is considering Deputy O'Dea's fair point, I would like to say sections 5 and 6 of the Bill deal with a number of consequential matters which the High Court can make in the interests of justice. These provisions are replicated in sections 5 and 6 of the amended version and we have no difficulty accepting them. There is no need for me to elaborate further on either section.

An interim, interlocutory or disposal order may be expressed to apply to any profit, gain, interest, dividend and so on or any other property. There could be something other than a dividend or interest accruing which has appreciated over that period. This is designed to catch that. I cannot give an example off the top of my head. Interest would apply in the case of a bank account, while shares could appreciate in value. It is a catchall provision. If assets appreciate, that appreciation is covered.

While I understand that, the wording used is not clear enough. The use of the word "other" is not appropriate to gains, dividends, interest, etc. Will the Minister consider this point between now and Report Stage?

Amendment agreed to.
Section 5 deleted.
NEW SECTION.

Amendment No. 7 and amendments Nos. 1, 2 and 3 to amendment No. 7 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 7:

In page 5, before section 6, to insert the following new section:

6.—(1) At any time while an interim order or an interlocutory order is in force, the Court may, on application to it in that behalf by the respondent, make such orders as it considers appropriate in relation to any of the property concerned if it considers it essential to do so for the purpose of enabling the respondent—

(a) to discharge the reasonable living and other necessary expenses (including legal expenses in or in relation to proceedings under this Act) incurred or to be incurred by or in respect of the respondent and his or her dependants, or

(b) to carry on a business, trade, profession or other occupation to which any of that property relates.

(2) An order under this section may contain such conditions and restrictions as the Court considers necessary or expedient for the purpose of protecting the value of the property concerned and avoiding any unnecessary diminution thereof.

(3) Notice of an application under this section shall be given by the respondent to the applicant.".

There is no major difference in principle to what I propose and what was in the original Bill. However, section 6 has a number of limitations. First, it only allows the High Court to make provision for living and legal expenses and excludes the possibility of the court making any necessary orders for enabling the respondent to carry on a business to which the frozen property relates. Second, it only deals with a situation where there is an interim order in force and omits to cover the interlocutory stage.

Subsection (1) of my amendment, therefore, expands the present wording to take account of these two matters. It has an important proviso that the court should only make an order if it considers it essential. In addition, subsection (2) would enable the court to impose any conditions it considers necessary for the purpose of avoiding any diminution in the value of property which is the subject of an interim or interlocutory order. The current form of words in section 6 would not appear to permit the court to attach any such conditions. Subsection (3) incorporates what is already in the Bill by providing that the respondent must give notice of the application to the applicant. There is no difference in principle between this amendment and what is in the Bill but my amendment gives the court more flexibility in terms of the type of orders it can make.

I refer to amendments Nos. 1, 2 and 3 to amendment No. 7 in Deputy O'Donnell's name. I have no difficulty in principle with these amendments, although I would like it if the Deputy would permit the parliamentary draftsman to see to what extent the wording needs to be adjusted. In amendment No.1 to amendment No. 7, before the phrase "an interest in", we would need to add the word "of" for consistency because this phrase occurs elsewhere in the Bill. As regards amendment No. 2 to amendment No. 7, while I realise the intention is that paragraph (1)(b) rather than (1)(a) would apply to the person other than a respondent, the proposed wording does not seem to make this sufficiently clear. It may be that nothing much turns on this but I would appreciate the opportunity to consider this more carefully.

As regards amendment No. 3 to amendment No. 7, we would also need to see how best to make provision for specifying who should give the notice. Elsewhere in the proposed amendments, wherever there is provision for notice, it is specified not only who should get notice, but who should give it. There is no difficulty of principle here, it is a matter of drafting and for the sake of consistency, it might be better to consider this further and return to it on Report Stage. I would be grateful if the Deputy would hold these amendments in reserve for Report Stage on the basis of that undertaking.

I have an engagement at 5 p.m. and Deputy Browne will take over as Acting Chairman.

I move amendment No. 1 to amendment No. 7:

In the second line of subsection (1), after "respondent" to insert "or any other person claiming ownership of, or an interest in, any of the property concerned".

The new section allows the respondent through an interlocutory order to apply for inter alia orders necessary to enable him or her to carry on a business, trade, profession or other occupation to which the frozen property relates. My amendment suggests that this apply to any another person claiming ownership of or an interest in the frozen property or property in which the respondent’s share is frozen. The aim is to revisit the protection of the interests of innocent parties who might be a joint owner of a property partly acquired by the proceeds of crime. For example, it might be in the interests of the business to sell an item of machinery and to use the proceeds to acquire another. Paragraphs (b) and (c) of amendment No. 7 are consequential on that principle.

I note the Minister is sympathetic to the amendments. Is the suggestion that I resubmit them on Report Stage so that the parliamentary draftsman can have a better look at them acceptable? If that is the case, I will do so.

Amendment No. 1 to amendment No. 7, by leave, withdrawn.
Amendments Nos. 2 and 3 to amendment No. 7 not moved.
Amendment No. 7 agreed to.
Section 6 deleted.
NEW SECTION.

I move amendment No. 8:

"In page 5, before section 7, to insert the following new section:

7.—(1) Where an interim order or an interlocutory order is in force, the Court may at any time appoint a receiver—

(a) to take possession of any property to which the order relates,

(b) in accordance with the Court's directions, to manage, keep possession or dispose of or otherwise deal with any property in respect of which he or she is appointed,

subject to such exceptions and conditions (if any) as may be specified by the Court, and may require any person having possession or control of property in respect of which the receiver is appointed to give possession of it to the receiver.

(2) Where a receiver takes any action under this section—

(a) in relation to property which is not property the subject of an interim order or an interlocutory order, being action which he or she would be entitled to take if it were such property, and

(b) believing, and having reasonable grounds for believing, that he or she is entitled to take that action in relation to that property,

he or she shall not be liable to any person in respect of any loss or damage resulting from such action except in so far as the loss or damage is caused by his or her negligence.".

Amendment agreed to.
Section 7 deleted.
NEW SECTIONS.

I move amendment No. 9:

"In page 6, before section 8, to insert the following new section:

8.—(1) Where a member or an authorised officer states—

(a) in proceedings under section 2, on affidavit or, if the Court so directs, in oral evidence, or

(b) in proceedings under section 3 in oral evidence, that he or she believes either or both of the following, that is to say:

(i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,

(ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes the proceeds of crime,

and that the value of the property or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than £10,000, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property:

Provided that, in the case of proceedings under section 2 or 3, the Court is satisfied that there are reasonable grounds for the belief aforesaid.

(2) The standard of proof required to determine any question arising under this Act shall be that applicable to civil proceedings.

(3) Proceedings under this Act in relation to an interim order shall be heard otherwise than in public and any other proceedings under this Act, may, if the respondent or any other party to the proceedings (other than the applicant) so requests and the Court considers it proper, be heard otherwise than in public.

(4) The Court may, if it considers it appropriate to do so, prohibit the publication of such information as it may determine in relation to proceedings under this Act, including information in relation to applications for, the making or refusal of and the contents of orders under this section and the persons to whom they relate.

(5) Production to the Court in proceedings under this Act of a document purporting to authorise a person, who is described therein as an officer of the Revenue Commissioners, to perform the functions conferred on authorised officers by this Act and to be signed by a Revenue Commissioner shall be evidence that the person is an authorised officer.".

This amendment concerns a number evidentiary and procedural matters.

Amendment agreed to.

I move amendment No. 10:

"In page 6, before section 8, to insert the following new section:

9.—At any time during proceedings under section 2 or 3 or while an interim order or an interlocutory order is in force, the Court or, as appropriate, in the case of an appeal in such proceedings, the Supreme Court may by order direct the respondent to file an affidavit in the Central Office of the High Court specifying—

(a) the property of which the respondent is in possession or control, or

(b) the income, and the sources of the income, of the respondent during such period (not exceeding 10 years) ending on the date of the application for the order as the court concerned may specify,

or both.".

Amendment agreed to.

I move amendment No. 11:

"In page 6, before section 8, to insert the following new section:

10.—(1) Where an interim order or an interlocutory order is made, the registrar of the Court shall, in the case of registered land, furnish the Registrar of Titles with notice of the order and the Registrar of Titles shall thereupon cause an entry to be made in the appropriate register under the Registration of Title Act, 1964, inhibiting, until such time as the order lapses, is discharged or is varied so as to exclude the registered land or any charge thereon from the application of the order, any dealing with any registered land or charge which appears to be affected by the order.

(2) Where notice of an order has been given under subsection (1) and the order is varied in relation to registered land, the registrar of the Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall thereupon cause the entry made under subsection (1) of this section to be varied to that effect.

(3) Where notice of an order has been given under subsection (1) and the order is discharged or lapses, the registrar of the High Court shall furnish the Registrar of Titles with notice to that effect and the Registrar of Titles shall cancel the entry made under subsection (1).

(4) Where an interim order or an interlocutory order is made, the registrar of the Court shall, in the case of unregistered land, furnish the Registrar of Deeds with notice of the order and the Registrar of Deeds shall thereupon cause the notice to be registered in the Registry of Deeds pursuant to the Registration of Deeds Act, 1707.

(5) Where notice of an order has been given under subsection (4) and the order is varied, the registrar of the Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cause the notice registered under subsection (4) of this section to be varied to that effect.

(6) Where notice of an order has been given under subsection (4) and the order is discharged or lapses, the registrar of the Court shall furnish the Registrar of Deeds with notice to that effect and the Registrar of Deeds shall thereupon cancel the registration made under tion (4).

(7) Where an interim order or an interlocutory order is made which applies to an interest in a company or to the property of a company, the registrar of the Court shall furnish the Registrar of Companies with notice of the order and the Registrar of Companies shall thereupon cause the notice to be entered in the Register of Companies maintained under the Companies Acts, 1963 to 1990.

(8) Where notice of an order has been given under subsection (7) and the order is varied, the registrar of the Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cause the notice entered under subsection (7) to be varied to that effect.

(9) Where notice of an order has been given under subsection (7) and the order is discharged or lapses, the registrar of the Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cancel the entry made under subsection (7).".

Amendment agreed to.

I move amendment No. 12:

"In page 6, before section 8, to insert the following new section:

11.—(1) Where a person who is in possession or control of property is adjudicated bankrupt, property subject to an interim order, an interlocutory order, or a disposal order, made before the order adjudicating the person bankrupt, is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act, 1988.

(2) Where a person has been adjudicated bankrupt, the powers conferred on the Court by section 2 or 3 shall not be exercised in relation to property of the bankrupt for the purposes of the said Act of 1988.

(3) In any case in which a petition in bankruptcy was presented, or an adjudication in bankruptcy was made, before the 1st day of January, 1989, this section shall have effect with the modification that, for the references in subsections (1) and (2) to the property of the bankrupt for the purposes of the Act aforesaid, there shall be substituted references to the property of the bankrupt vesting in the assignees for the purposes of the law of bankruptcy existing before that date.".

Amendment agreed to.

I move amendment No. 13:

"In page 6, before section 8, to insert the following new section:

12.—(1) Without prejudice to the generality of any provision of any other enactment, where—

(a) the Official Assignee or a trustee appointed under the provisions of Part V of the Bankruptcy Act, 1988, seizes or disposes of any property in relation to which his or her functions are not exercisable because it is subject to an interim order, an interlocutory order or a disposal order, and

(b) at the time of the seizure or disposal he or she believes, and has reasonable grounds for believing, that he or she is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of that property,

he or she shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his or her negligence in so acting, and he or she shall have a lien on the property, or the proceeds of its sale, for such of his or her expenses as were incurred in connection with the bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his or her remuneration as may reasonably be assigned for his or her acting in connection with those proceedings.

(2) Where the Official Assignee or a trustee appointed as aforesaid incurs expenses in respect of such property as is mentioned in subsection (1) (a) and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to an order under this Act, he or she shall be entitled (whether or not he or she has seized or disposed of that property so as to have a lien) to payment of those expenses.".

Amendment agreed to.

I move amendment No. 14:

In page 6, before section 8, to insert the following new section:

"13.—(1) Where property the subject of an interim order, an interlocutory order or a disposal order made before the relevant time is in the possession or control of a company and an order for the winding up of the company has been made or a resolution has been passed by the company for a voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to the property.

(2) Where, in the case of a company, an order for its winding up has been made or such a resolution has been passed, the powers conferred by section 2 or 3 on the Court shall not be exercised in relation to any property held by the company in relation to which the functions of the liquidator are exercisable—

(a) so as to inhibit him or her from exercising those functions for the purpose of distributing any property held by the company to the company's creditors, or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) In this section—

‘company' means any company which may be wound up under the Companies Acts, 1963 to 1990;

‘relevant time' means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up,

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the court, such a resolution had been passed by the company, the time of the passing of the resolution, and

(c) in any other case where such an order has been made, the time of the making of the order.".

Amendment agreed to.

I move amendment No. 15:

"In page 6, before section 8, to insert the following new section:

14.—No action or proceedings of any kind shall lie against a bank, building society or other financial institution or any other person in any court in respect of any act or omission done or made in compliance with an order under this Act.".

Amendment agreed to.

I move amendment No. 16:

"In page 6, before section 8, to insert the following new section:

15.—(1) Where an order under this Act is in force, a member of the Garda Síochána or an officer of customs and excise may, for the purpose of preventing any property the subject of the order being removed from the State, seize the property.

(2) Property seized under this section shall be dealt with in accordance with the directions of the Court.".

Amendment agreed to.

Amendment No. 1 to amendment No. 17 and amendment No. 17 are related.

I move amendment No. 17:

"In page 6, before section 8, to insert the following new section:

"16.—(1) Where—

(a) an interim order is discharged or lapses and an interlocutory order in relation to the matter is not made or, if made, is discharged, (otherwise than pursuant to section 3 (7)),

(b) an interlocutory order is discharged (otherwise than pursuant to section 3 (7)) or lapses and a disposal order in relation to the matter is not made or, if made, is discharged,

(c) an interim order or an interlocutory order is varied (otherwise than pursuant to section 3 (7)) or a disposal order is varied on appeal,

the Court may, on application to it in that behalf by a person who shows to the satisfaction of the Court that—

(i) he or she is the owner of any property to which—

(I) an order referred to in paragraph (a) or (b) related, or

(II) an order referred to in paragraph (c) had related but, by reason of its being varied by a court, has ceased to relate,

and

(ii) the property does not constitute, directly or indirectly, proceeds of crime or was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

award to the person such (if any) compensation payable by the Minister as it considers just in the circumstances in respect of any loss incurred by the person by reason of the order concerned.

(2) The Minister shall be given notice of, and be entitled to be heard in, any proceedings under this section.".

I wish to indicate my willingness to accept Deputy O'Donnell's amendment in principle. Again time did not allow for consultation with the parliamentary draftsman about the language, expression and so on. I am prepared to accept the principle of the amendment, if Deputy O'Donnell would permit us to make contact with her before it goes into the House.

I agree to that.

Amendment No. 1 to amendment No. 17 not moved.
Amendment No. 17 agreed to.

I move amendment No. 18:

In page 6, before section 8, to insert the following new section:

"17.—The expenses incurred by the Minister and (to such extent as may be sanctioned by the Minister) by the Garda Síochána and the Revenue Commissioners in the administration of this Act shall be paid out of moneys provided by the Oireachtas.".

This is a standard provision.

Amendment agreed to.

I move amendment No. 19:

"In page 6, before section 8, to insert the following new section:

18.—This Act may be cited as the Proceeds of Crime Act, 1996.".

Amendment agreed to.
Section 8 deleted.
TITLE.

I move amendment No. 20:

In page 3, to delete lines 7 to 11 and substitute the following:

"AN ACT TO ENABLE THE HIGH COURT, AS RESPECTS THE PROCEEDS OF CRIME, TO MAKE ORDERS FOR THE PRESERVATION AND, WHERE APPROPRIATE, THE DISPOSAL OF THE PROPERTY CONCERNED AND TO PROVIDE FOR RELATED MATTERS.".

Amendment agreed to.
Title, as amended, agreed to.
Report of Select Committee.

I propose the following draft report:

The Select Committee has considered the Bill and made amendments thereto and has amended the Title to read as follows:

AN ACT TO ENABLE THE HIGH COURT, AS RESPECTS THE PROCEEDS OF CRIME, TO MAKE ORDERS FOR THE PRESERVATION AND, WHERE APPROPRIATE, THE DISPOSAL OF THE PROPERTY CONCERNED AND TO PROVIDE FOR RELATED MATTERS.

Is that agreed? Agreed.

I thank everybody for being so cooperative since the chairman left.

Fianna Fáil introduced this Bill because it was necessary. The mathematics of parliamentary democracy are such that it would not have been possible for Fianna Fáil to ensure the passage of the legislation without the assistance and support of the Government. The Government provided Dáil time and I thank it for that.

I thank the Minister of State, Deputy Rabbitte, for the courtesy and efficiency with which he dealt with this legislation today. It is appreciated. I also thank the Chairman, the Acting Chairman and all the members of the committee for their contributions. I thank the Clerk of the committee and the officials from the Department of Justice for whom I have the highest regard, even if I accuse them every now and then of suffering from legislative dementia.

I add my words in the same tone to the members of the committee, the Acting Chairman and the Chairman, Deputy Flanagan, for the courteous and patient manner in which we got through the work today. We have done a good day's work. I will not reopen any old wounds about Deputy O'Donoghue in particular who is very particular about paternity cases and allegations connected therewith. I hope that the Bill makes a significant contribution to the battle against organised crime.

I thank the Minister and his officials, the staff here and the Chairman for concluding the Bill so quickly. It is important legislation and time will tell how effective it will be. The proof of this legislation will be in its implementation. We are taking risks and changing the direction of our law because the previous law did not work. The type of criminality with which we are dealing meant that our criminal justice system was as flexible as the criminals it seeks to apprehend.

We did important work today. We had a good debate on the concerns which were expressed outside and inside the House as to the direction we are taking. It is a direction which has the support of all the parties in the House and of the general public. We will revisit the other aspects of the debate on Report Stage.

I congratulate Deputy O'Donoghue on introducing the Bill. Everybody accepts that it was a worthwhile, necessary and beneficial measure. I also congratulate the Minister of State on his patience and forbearance because he had to deal with something with which he has not been involved previously whereas we have been discussing these issues for quite some time.

It is particularly important that this Bill has come through this committee from the Opposition. In future I would like to see a more open approach to legislation where Bills could be produced and brought through the Oireachtas, receive the support of the Government and be thrashed out in committee. We are too bound up with a single approach to Government.

I would like to see the Parliament more directly involved as it has been in this case. This is especially necessary when dealing with such a vital and important issue. However, I am sorry that the sense of urgency in this case was brought about by such a tragedy. That will always be before us and there is no escaping from that reality.

I congratulate Deputy O'Donoghue, the Minister, Deputy O'Donnell and everyone concerned and I thank the officials involved.

I compliment Deputy O'Donoghue on his initiative in bringing forward this Bill. I also thank the Minister of State for his courtesy and patience, and the tremendous entertainment he has provided today. When I refer to his helpful approach, I mean that sincerely. He agreed to take some matters on board and I hope we will see the appropriate amendments on Report Stage.

On behalf of Deputy Flanagan, I thank Members for their co-operation and the Minister for attending and displaying his sense of humour once more. As Deputy O'Donnell said, the fruit of this Bill will not be in its passing quickly here but in whether it is effective and, for all our sakes, I hope it is very effective.

The Select Committee went into private session at 5.05 p.m.