I remind members to ensure their mobile phones are switched off as they interfere with the transmission of the proceedings and cause serious problems for broadcasting, editorial and the sound staff. I welcome the Minister of State at the Department of Foreign Affairs and Trade, Deputy Sean Sherlock and his officials. The purpose of this meeting is to consider Committee Stage of the Customs Bill 2014. The Bill was referred to the select sub-committee by Dáil Éireann on 5 February 2015.
Customs Bill 2014: Committee Stage
Section 1 agreed to.
SECTION 2
Amendments Nos. 1 to 3, inclusive, are related and may be discussed together.
I move amendment No. 1:
In page 8, between lines 26 and 27, to insert the following:
“ “duties of customs” has the same meaning as “import duties” or “export duties” have, as the case may be, in the Customs Code;”.
I propose to discuss amendments Nos. 1 to 3, inclusive, together as all three amendments are to section 2. Section 2 is the interpretation section of the Bill and provides for the definitions. Amendment No. 1 is to provide a definition of "duties of customs", which is used throughout the Bill. The definition will ensure that the phrase will have the same meaning in the Bill as it has in the EU customs legislation. Amendment No. 2 deletes the definition of "other Member States", which on an analysis of the Bill following its publication, was found to be no longer needed. Amendment No. 3 amends the current definition of "officer of customs" in the Bill as published. The purpose of the amendment is to widen the inclusion text to provide for the inclusion in the definition of "officer of customs" of an officer of the Revenue Commissioners.
Amendment agreed to.
I move amendment No. 2:
In page 9, to delete lines 18 and 19.
Amendment agreed to.
I move amendment No. 3:
In page 9, between lines 21 and 22, to insert the following:
“(a) an officer of the Commissioners, not so authorised,”.
Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 and 4 agreed to.
SECTION 5
I move amendment No. 4:
In page 11, line 12, to delete “has been” and substitute “stands”.
This provides for legal continuity in the operation of the law relating to customs in respect of the relationship between the repealed enactments and the new Customs Act.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6
I move amendment No. 5:
In page 11, line 32, after “may,” to insert “in consultation with the Minister for Transport, Tourism and Sport,”.
The amendment provides that the Revenue Commissioners may appoint, for the purposes of the Customs Acts, any place in the State as a customs port or a customs airport for the arrival and departure of vessels and aircraft into or out of the State.
Amendment agreed to.
Amendments Nos. 6 and 7 are related and may be discussed together.
I move amendment No. 6:
In page 12, between lines 11 and 12, to insert the following:
“(6) The Minister shall provide regulations as to how these controls are applied to foreign military aircraft which land within the State.”.
What are the arrangements in regard to customs when a foreign military ship or aeroplane arrives in the State?
Before responding to Deputy Tóibín's question, I will address amendments Nos. 6 and 7. Amendments Nos. 6 and 7 tabled by Deputy Doherty are to section 6, which provides that the Revenue Commissioners may appoint, for the purposes of the Customs Acts, any place in the State as a customs port or a customs airport for the arrival and departure of vessels and aircraft into or out of the State.
The effect of the amendments, if accepted, would be to place in section 6 a legal requirement on the Minister for Finance to make regulations as to how controls of vessels and aircraft are to be applied to foreign military naval craft and foreign military aircraft, respectively, which land in the State. At present section 6 does not contain provisions relating to the control of either vessels or aircraft arriving into or departing from the State. Therefore, the two amendments are not relevant to the section.
Provisions relating to the control of vessels and aircraft are, however, contained in sections 8 to 11, inclusive. It is the intention that the Revenue Commissioners will make regulations under these sections specifying the arrangements that will apply to different types and classes of vessels and aircraft arriving in or departing the State. Under section 39, regulations made by the Revenue Commissioners regarding, inter alia, the procedures relating to conveyances, including vessels and aircraft, are to be laid before the Dáil.
However, on the substantive point in both amendments, namely, the controls that are to be applied to foreign military naval craft and foreign military aircraft which land in the State, such aircraft or vessels are not liable to inspection or search due to internationally accepted principle and customary law on sovereign immunity. Essentially, there is no right in international law for any state's military aircraft to enter the sovereign airspace of another state nor is there a right of naval vessels to enter the territorial waters of another state. Entry requires the consent of the state concerned and, of course, there is no obligation to grant it. However, once granted, the vessel or aircraft concerned enjoys sovereign immunity from the jurisdiction of the consenting state and if it violates any conditions attached to that consent, the only remedy available to the consenting state is to require it to leave its waters or airspace.
As the proposed amendments would impinge upon internationally agreed principles and customs law, the Government cannot accept these amendments.
The Minister of State has given a clean and tidy answer but as he will know, the practical working of the status quo is that hundreds of thousands of US troops go through Irish airspace and airports. Shannon Airport is the prime example. This has led to the killing of tens of thousands, if not hundreds of thousands of people in other lands. This country had a proud history of neutrality. Obviously these flights have been used for the rendition of individuals whose constitutional rights have not been respected. There has been smuggling of individuals and a large quantity of weaponry, to which the State has turned a blind eye. The amendment seeks to provide regulations to control what can be brought in and out of the State, through our airports, harbours and bays. If the State means what it states with regard to neutrality, then it should come up with regulations. I ask the Minister of State to accept these two amendments.
This is the Customs Bill 2014.
If the Deputy wishes to bring forward a Bill or an amendment to other legislation to address the issues outlined by him there are appropriate ways of doing so. The Government is not in a position to accept these two amendments because, as I have stated, this is a customs Bill. Permission for foreign military aircraft to land at Irish airports is subject to policy conditions, including that the aircraft carry no arms, ammunition or explosives, do not engage in intelligence gathering and that the flights in question do not form part of any military exercise or operation.
As I said, this is a customs Bill. Arguably, it is a consolidation of legislation dating back to the 1800s in relation to the issue of customs. There is a more appropriate mechanism available through which the Deputy can address the issues he raised.
I appreciate that it is a customs Bill. However, these aircraft are given a customs pass in that there is no effective effort whatsoever to search or ascertain their content. Approximately six weeks ago, Sinn Féin tabled a Bill with regard to Ireland's neutrality. It is important we focus on these issues. I understand why the Minister of State does not propose to accept these amendments but it would be fair to say that regardless of what Bill in which Sinn Féin proposed these amendments, the Government would refuse to accept them. It is not necessarily the case that this is the wrong legislation, rather it is that this is the policy of Government.
For clarity, in regard to civil aircraft, An Garda Síochána has statutory powers of entry and arrest. However, these powers can only be exercised where a garda knows or reasonably suspects that a person has committed an offence. There is no legislative basis to permit random or routine entry to or a search of civilian aircraft for the purpose of the detection of any offence. Amendments to these legislative provisions are the responsibility of the Departments of Transport, Tourism and Sport and Jobs, Enterprise and Innovation. Day-to-day implementation of these provisions is an operational matter for An Garda Síochána.
The Deputy has spoken specifically of military aircraft. The situation in this regard is different. Under the Chicago Convention, which provides the basis for the regulation of international civil aviation, military aircraft are deemed to be state aircraft and are excluded from the application of that convention. Accordingly, section 3 of the Air Navigation and Transport Act 1946 excludes state aircraft from its provisions. This is subject to the wider provisions of the Chicago Convention. Again, for the purposes of this legislation, which is a customs Bill, I cannot accept the amendments.
Amnesty International has brought to the attention of Government six aircraft that have been used for rendition in Shannon. There is ample allegation and substantiated evidence to show this activity has been carried on. However, I understand we are at an impasse here.
Amendment put and declared lost.
I move amendment No. 7:
In page 12, between lines 11 and 12, to insert the following:
"(6) The Minister shall provide regulations as to how these controls are applied to foreign military naval craft which land within the State.".
Amendment put and declared lost.
Section 6, as amended, agreed to.
SECTION 7
Amendments Nos. 8, 18 and 30 are related and may be discussed together.
I move amendment No. 8:
In page 12, line 30, to delete "staff," and substitute "staff".
The purpose of amendment No. 8 is to delete a superfluous comma. Amendment No. 18 is to amend an incorrect cross-reference, and amendment No. 30 is to delete "Part 7 of the Taxes Consolidation Act 1997" and substitute it with "Part 7".
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8
Amendments Nos. 9, 11 and 12 are related and may be discussed together.
I move amendment No. 9:
In page 13, line 19, to delete "immediately".
Amendment No. 9 provides that the master of a vessel entering the State is required to berth the vessel, land the goods and disembark the passengers at an approved place within the customs port. Amendment No. 11 makes a corresponding technical change to section 10 which deals, inter alia, with the obligations of the pilot in command of an aircraft in a similar force majeure scenario. Amendment No. 12, also to section 10, concerns the obligations of the pilot in command of an aircraft entering into or departing from the State. In effect, section 9 requires that the operator of the airport notify Customs and Excise of any arrivals or departures in contravention of the conditions of approval of that airport.
Amendment agreed to.
Section 8, as amended, agreed to.
NEW SECTION
Amendments Nos. 10 and 13 are related and may be discussed together. Acceptance of amendment No. 10 involves the deletion of section 9.
I move amendment No. 10:
In page 13, between lines 26 and 27, to insert the following:
“Report inwards and outwards of vessels
9. (1) The master of a vessel, whether laden or in ballast, entering the State shall—
(a) under and in accordance with regulations under subsection (3), submit or cause to be submitted a report of the vessel to the Commissioners,
and
(b) answer all questions relating to the voyage, vessel, passengers, crew, baggage, conveyances and goods or stores carried on board, as may be put to him or her by an officer of customs.
(2) The master of a vessel, whether laden or in ballast, departing the State shall—
(a) under and in accordance with regulations under subsection (3), submit or cause to be submitted a report of the vessel to the Commissioners, and
(b) answer all questions relating to the voyage, vessel, passengers, crew, baggage, conveyances and goods or stores carried on board, as may be put to him or her by an officer of customs.
(3) The Commissioners may make regulations for the purposes of subsections (1) and (2)specifying—
(a) the circumstances in which reports are required to be submitted and may specify different reporting requirements for different types and classes of vessel, and for different activities,
(b) the place and time for submission of such reports, and
(c) the form, manner and particulars of such reports.
(4) A person who contravenes subsection (1) or (2) commits an offence and is liable on summary conviction to a fine of €5,000.".
Amendment No. 10 is to section 9, which provides that the master of a vessel arriving at, or departing from, the State is required to deliver a report of the vessel to Customs and Excise and to answer all questions relating to the voyage, vessel, passengers, goods carried and the crew. The amendment substitutes a revised text for section 9. Amendment No. 13 makes a corresponding change to section 11, which provides that the pilot in command of an aircraft arriving at, or departing from, the State is required to deliver a report as outlined earlier. The amendment also provides that the revised text does not constitute any change of substance to the requirement in the original text as published.
Amendment agreed to.
Section 9 deleted.
SECTION 10
I move amendment No. 11:
In page 15, line 1, to delete "immediately".
Amendment agreed to.
I move amendment No. 12:
In page 15, line 6, to delete "immediately".
Amendment agreed to.
Section 10, as amended, agreed to.
NEW SECTION
This amendment was discussed with amendment No. 10. Acceptance of this amendment involves the deletion of section 11.
I move amendment No. 13:
In page 15, between lines 11 and 12, to insert the following:
“Report inwards and outwards of aircraft
11. (1) The pilot-in-command of an aircraft entering the State shall—
(a) under and in accordance with regulations under subsection (3), submit or cause to be submitted a report of the aircraft to the Commissioners, and
(b) answer all questions relating to the flight, aircraft, passengers, crew, baggage, conveyances and goods or stores carried on board, as may be put to him or her by an officer of customs.
(2) The pilot-in-command of an aircraft departing the State shall—
(a) under and in accordance with regulations under subsection (3), submit or cause to be submitted a report of the aircraft to the Commissioners, and
(b) answer all questions relating to the flight, aircraft, passengers, crew, baggage, conveyances and goods or stores carried on board, as may be put to him or her by an officer of customs.
(3) The Commissioners may make regulations for the purposes of subsections (1) and (2) specifying—
(a) the circumstances in which reports are required to be submitted and may specify different reporting requirements for different types and classes of aircraft, and for different activities,
(b) the place and time for submission of such reports, and
(c) the form, manner and particulars of such reports.
(4) A person who contravenes subsection (1) or (2) commits an offence and is liable on summary conviction to a fine of €5,000.".
Amendment agreed to.
Section 11 deleted.
NEW SECTION
Amendments Nos. 14 and 15 are related. If the question on amendment No. 14 is agreed, amendment No. 15 cannot be moved. Acceptance of amendment No. 14 involves the deletion of section 12.
I move amendment No. 14:
In page 15, between lines 30 and 31, to insert the following:
“Control of persons and their baggage
12. (1) A person entering or leaving the State shall—
(a) at such place as the Commissioners may designate and in such manner as the Commissioners may determine, declare to an officer of customs any goods included in his or her baggage or brought with him or her, which are liable to any duty or tax, or are subject to any prohibition or restriction on importation or exportation,
(b) answer such questions as may be put to him or her by an officer of customs, in exercise of the powers conferred on the officer by section 31, with respect to—
(i) the person’s arrival or departure,
(ii) the person’s identity, usual place of residence and actual or intended address within the State,
(iii) the person’s baggage, and
(iv) anything included in that baggage or brought by that person by whatever means,
(c) if required by that officer, produce and unpack that baggage and any such thing for examination, and repack it following such examination, and
(d) remain present for the duration of such examination.
(2) For the purposes of subsection (1)(a), where a channel system is in place at a customs port or customs airport, a person entering the State shall declare, by electing to enter and entering the red channel, that he or she has in his or her baggage, or has brought with him or her goods that are liable or may be liable to any duty or tax, or that are subject or may be subject to any prohibition or restriction on importation.
(3) A person entering the State who leaves a place approved under section 7(1), or who leaves a customs port or customs airport, without making a declaration under subsection (1) shall be deemed to have declared that there are no goods included in his or her baggage or brought with him or her, that are liable or may be liable to any duty or tax, or that are subject or may be subject to any prohibition or restriction on importation.
(4) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of €5,000.
(5) In this section and in section 13, “duty or tax” means duties of customs, excise duty or Value-Added Tax payable on goods imported or exported.".
Amendment No. 14 to section 12 provides that a person entering or leaving the State is required to declare to a customs officer anything in his or her baggage, to answer all questions in respect of his or her arrival or departure and in respect of his or her baggage, to unpack the baggage for examination and to remain present for the duration of the examination. The amendment in subsection (1)(b) is to provide that a person entering or leaving the State shall also answer any questions put to him or her by an officer of customs in respect of the person’s identity, place of residence and address within the State. This is considered to be an important and necessary provision in respect of the Customs and Excise’s control of persons and their baggage entering or leaving the State.
The amendment in subsection (2), and the corresponding insertion of new subsection (3), is to clarify the manner in which a person makes a customs declaration where a red and green channel system is in place at ports and airports. The new subsection (3) provides that where a person leaves a customs port or airport, or other customs place, without making a declaration under subsection (1), he or she is deemed to have declared that there are no dutiable or prohibited or restricted goods carried in their baggage. If that person is subsequently found to have in their baggage or on his or her person goods that are liable to duty or tax, or that are subject to a prohibition or restriction on importation, the person has left himself or herself open to prosecution for contravention of subsection (1).
I apologise to the Minister of State. He may discuss amendments Nos. 14 and 15 together.
Amendment No.15, in the name of Deputy Doherty, is to section 12. The effect of the amendment, if accepted, would be that any person either searched or found to be liable for duty or tax on imported goods could request in writing the reason that he or she had been searched or the reason he or she had been charged the duty or tax.
The charging of any duty or tax on imported goods only arises where such goods are so liable under the law in force at the time. Information regarding rates of duty and tax applicable is freely and widely available, for example, on the Revenue Commissioners' website and in public notices. Any assessment to duty or tax made by customs would be fully explained to the person concerned at the time of importation or at any subsequent time, if so requested. Accordingly, it is considered that a provision in legislation, as laid down in the amendment, is absolutely unnecessary.
As regards the search of baggage, the selection of baggage for examination is based on a combination of customs risk assessment criteria, intelligence information and an element of random selection. Search of passengers’ baggage by customs is a standard control mechanism at ports and airports worldwide and it is not considered necessary or desirable from an operational point of view to disclose to the passenger the reason his or her baggage was selected for examination.
In the real world, knowledge levels are often quite low with regard to customs and excise. Many people unwittingly find themselves in a very difficult position maybe on returning from a shopping trip to New York if they have a laptop or dress too many. Citizens have contacted us who felt they were treated like criminals because they lacked information. There was very little communication with them during the process about the process. While I accept the truth of what the Minister of State has said about the logic for the searches, they might be made a little more citizen-friendly.
Nobody is arguing with the logic of the Minister of State's amendment but where engagement with human beings is necessary, it is necessary to have a customer focus rather than making individuals feel they are being treated like criminals for something they did not know about. I know of an individual from Belfast who flew from Dublin to New York for her daughter's birthday and went shopping. When she came back she was fined €600. She did not realise she was over the limit. She cried all the way to Belfast and had to raise the money for the fine and the excise and drive back to Dublin to collect her luggage. All of this can be implemented in a more customer or citizen-friendly manner.
Amendment put and declared carried.
Section 12 deleted.
Amendment No. 15 not moved.
SECTION 13
I move amendment No.16:
In page 16, line 39, to delete “in the form of a Single Administrative Document (SAD)”.
This provides that the Customs Acts apply to goods imported and exported by post.
Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14
Amendments Nos. 17 and 19 are cognate and may be discussed together.
I move amendment No.17:
In page 18, line 27, to delete “6 months” and substitute “12 months”.
This amendment makes it an offence to smuggle goods into the State without payment of duty or contrary to a prohibition or restriction on their importation. It also makes it an offence to export goods without payment of any duty that may be payable or contrary to any prohibition or restriction on their exportation. Amendment No. 19 to section 15 provides for a number of miscellaneous offences associated with smuggling, ranging from failure to comply with the lawful requirement imposed by an officer of customs to damaging customs property.
Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15
I move amendment No. 18:
In page 19, line 32, to delete “subsection (1)(i)” and substitute “subsection (1)(j)”.
Amendment agreed to.
I move amendment No.19:
In page 19, line 37, to delete “6 months” and substitute “12 months”.
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 to 20, inclusive, agreed to.
SECTION 21
Amendments Nos. 20 to 24, inclusive, are related and may be discussed together.
I move amendment No. 20:
In page 22, line 24, after “offence” to insert “under the Customs Acts”.
Amendments Nos. 20 to 24, inclusive, deal with the same substantive point in one section. These are technical amendments to section 21 of the Bill which provide for the rules for court proceedings in relation to customs offences. The first four amendments clarify that section 21 applies to proceedings in respect of any offence under the Customs Acts. Consequently, the fifth amendment is to delete subsection (9), is superfluous.
Amendment agreed to.
I move amendment No. 21:
In page 22, line 29, to delete “under this Act” and substitute “under the Customs Acts”.
Amendment agreed to.
I move amendment No. 22:
In page 23, line 12, to delete “under this Act” and substitute “under the Customs Acts”.
Amendment agreed to.
I move amendment No. 23:
In page 23, lines 14 and 15, to delete “under this Act” and substitute “under the Customs Acts”.
Amendment agreed to.
I move amendment No. 24:
In page 23, to delete line 16.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22
Question proposed: "That section 22 stand part of the Bill."
I oppose section 22. As drafted, the section seems to give carte blanche and immunity to officers carrying out the searches. Has this section ever been invoked? What damage to the person would be exempted?
Section 22 provides that in civil or criminal cases where judgment is given against a Revenue official as the defendant on account of the seizing or detention of anything, the plaintiff will not be entitled to any damages or costs and the defendant will not be liable to punishment or penalty, providing the court finds probable cause for the seizure or detention. No change of substance is involved. This section protects officers seizing or detaining goods or anything where a civil or criminal case is taken against such officers, provided that the court or judge certifies that there was probable cause for such seizure or detention.
This provision mirrors a similar provision, namely, section 129 of the Finance Act 2001, in respect of the seizure of exciseable goods. It is considered that this is a reasonable safeguard for customs officers when carrying out their official duties and acting in good faith. From the plaintiff’s point of view, he or she has the safeguard that the court must find that there was probable cause for the detention or seizure. If the section were not included, customs officers would be unable to carry out their official duties for fear of exposing themselves to threats of vexatious litigation. Forgive me for not understanding the question posed. Perhaps the Deputy can pose it again.
It was answered to a certain extent. The question I asked was what would be exempted and the answer is that everything is exempted.
Customs officers, when they have probable cause for detention or seizure, must be protected when enforcing the law. This type of protection has existed for customs officials this since the early days of customs law and also exists for other officials of the State enforcing law. For example, Revenue officials enforcing excise law have had this protection since the early days of excise and it was renewed in the 2001 Finance Act. If the court or judge fails to find that the customs official had any probable cause for detention or seizure, the section does not provide any protection and the owner or holder of the goods seized can, if they so wish, seek compensation through the courts.
Question put and declared carried.
Sections 23 and 24 agreed to.
SECTION 25
I move amendment No. 25:
In page 25, line 12, after “section 7(1)” to insert “or section 13(2)”.
The amendment provides for powers of entry, inspection and patrolling of certain places for an officer of customs, and any person assisting such an officer, for the purposes of carrying out functions under the Customs Acts, at any time and without warrant.
Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 to 29, inclusive, agreed to.
SECTION 30
I move amendment No. 26:
In page 29, line 20, after “section 29” to insert “, or on board a conveyance that has been boarded under section 27,”.
The amendment provides for the power to carry out a search of a person who is at or in the vicinity of a port or airport, the coast, the land frontier or any premises or land being searched under a search warrant. This power is a necessary control provision to combat smuggling.
Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31
I move amendment No. 27:
In page 30, lines 25 to 28, to delete all words from and including “(1) An” in line 25 down to and including line 28 and substitute the following:
“(1) An officer of customs may, subject to subsection (2), stop any person entering or leaving the State and question that person with respect to—
(a) the person’s arrival or departure,
(b) the person’s identity, usual place of residence and actual or intended address within the State,
(c) the person’s baggage, and
(d) anything included in that baggage or brought by that person by whatever means,
and the officer may examine any such baggage or thing.”.
This authorises an officer of customs to stop and question a person entering or leaving the State with regard to their journey and their baggage. It also authorises the officer to search such baggage.
Amendment agreed to.
Section 31, as amended, agreed to.
Section 32 agreed to.
SECTION 33
I move amendment No. 28:
In page 31, line 33, after “proceedings.” to insert the following:
“After 30 days, and after each period of 30 days, the officer must seek permission from a District Court Judge to continue to hold the goods.”.
The original section 33 refers to allowing an officer of customs who has reasonable grounds of suspicion regarding any goods being imported or exported to hold them for an indeterminate amount of time and there is no limit to the length of time the items can be held. The balance is against the citizen in this regard. If there is a logic to holding the items, the items should be held but there is a necessity for a burden of proof or for the officers to show there is good reason for it. That should not be just within the mind of the officers and our amendment seeks to put a time limit on how long the goods can be held without the approval of the court.
In general terms, the Deputy referred to being citizen-friendly and it is important we recognise the work of customs officials is citizen-friendly. If fines are issued successfully, it is because there has been a breach of regulations. We all subscribe to the rule of law in that context.
I will explain to the Deputy the Government's position and the Deputy can explain why he seeks a return to a District Court judge and give us some insight into the Sinn Féin position on this. The amendment gives a customs officer, on reasonable grounds of suspicion, the power to detain goods and conveyances being imported or exported pending the outcome of inquiries and investigations into whether the goods in question are in compliance with the Customs Acts. Section 33(4) provides that a customs officer may detain any goods being imported or exported that he or she has reasonable grounds to suspect might be required as evidence in any criminal proceedings under any enactment other than the Customs Acts and to place such goods in the custody of the Garda Síochána or other appropriate authority for the purpose of such proceedings. Section 33(4) is a new power and is being proposed to cover instances where Customs and Excise officers, in the course of their duties, discover items that, while not in contravention of customs law, could be required as evidence in criminal proceedings involving breaches of other laws. An example would be false passports discovered in a postal consignment. These would not be in contravention of any customs laws but would clearly be evidence of wrongdoing under other legislation and could be required as evidence in criminal proceedings.
The effect of the amendment, if accepted, would be to limit the period of detention of such goods to 30 days and, after each period of 30 days, to require the officer to seek permission from a District Court judge to continue to hold the goods. It is considered that a determination as to whether goods detained under this provision are required as evidence in proceedings would, in the vast majority of cases, be made without undue delay and certainly within the 30-day period proposed in the amendment. However, it would be restrictive and time-consuming to lay down in legislation a requirement to return to the courts on one or more occasions while inquiries were ongoing. On this basis, I do not accept the amendment.
The Customs and Excise provides an important service to the country and must be commended on difficult work at times. The safety and the health of our citizens is, in part, dependent on the work it does. There is no doubt the Customs and Excise must be provided with the necessary tools to carry out its work. The third party is included so that there is someone seen to be independent and judicial in its determination on why items are being held. This is not in any effort to limit the ability but simply to ensure that, where abuses happen, there is a safety check for abuses. Within the best organisations, abuse happens and this is a method to ensure it does not happen.
If the Deputy examines the Bill, section 33(3) includes the provision that if, within 30 days of the detaining goods, the customs officials do not have any good reasons to seize the goods, they must be released. Other provisions are included in the paragraph the Deputy wants to amend, section 33(4), which are for cases where other goods, which may be evidence in criminal proceedings, are detained. These goods will be handed on to the custody of the Garda Síochána as soon as possible. The goods will no longer be in possession of the customs authorities. In the first case, the customs authorities either release or seize within 30 days and in the second case the Garda Síochána has custody of the goods.
Amendment put and declared lost.
Section 33 agreed to.
Sections 34 to 39, inclusive, agreed to.
NEW SECTION
I move amendment No. 29:
In page 34, after line 42, to insert the following:
"40. Within one month of the passing of this Act the Minister for Finance shall lay before the Houses of the Oireachtas a report on the effect of fuel, tobacco and other types of smuggling on the economy and propose in conjunction with the Northern Ireland Assembly measures to tackle these crimes.".
Fuel smuggling, tobacco smuggling and other forms of smuggling are causing massive difficulties in this State and in the North. These activities provide incomes for criminals, destroy the environment and impose massive policing costs on the State. As I have said to the Minister of State previously, the only way to resolve this type of smuggling is to equalise the taxes and the excise on both sides of the Border. Sinn Féin is offering the Government an open door to the Executive in the North. We are in favour of the creation of an all-Ireland economy in which all of these things are equalised. That is the only solution which will effectively reduce these types of crimes. Obviously, the political will to seek that opportunity might not yet exist within the Government. As this is such a big issue, I am shocked that no other amendments have been proposed in this particular space by other politicians. We regularly hear on the airwaves about how seriously these issues are taken by certain people. Whole pages or sections of some of our Sunday newspapers are focused on these issues.
I ask the Government to ensure it means business in the resolution of these problems. In other words, it needs to measure the difficulties at hand. One cannot manage if one cannot measure. Rather than acting in an isolated manner, the Government should take real measures in conjunction with the Assembly in the North of Ireland to tackle these crimes. I know that some work is being done with the North of Ireland on this. This amendment proposes that a process involving stronger measures would kick in "within one month of the passing of this Act" to make sure we do not have to deal with this in the future.
To be helpful to the Deputy, perhaps we need to distinguish between what is a customs issue, in effect, and what is an excise issue. If this amendment were accepted, its effect would be to introduce a new section in the Bill under which the Minister for Finance would be statutorily obliged to "lay before the Houses of the Oireachtas a report on the effect of fuel, tobacco and other types of smuggling on the economy and propose in conjunction with the Northern Ireland Assembly measures to tackle these crimes.". The Department of Finance and the Revenue Commissioners monitor the illicit trade in excisable goods on an ongoing basis and continually make recommendations to tackle the issue. The Minister has used successive Finance Acts to introduce measures to tackle the illicit trade in fuel and tobacco and will not hesitate to do so again in this year's finance Bill, if he sees a need to do so. I hope any such measures will gain the support of all parties.
Three reports in this field have already been completed this year. The Revenue Commissioners recently published an analysis of oil duties, entitled The Oil Market in Ireland: Duties, Prices and Consumption. This report included an examination of consumption and revenue loss to the Exchequer due to laundering and smuggling. This report indicates that the overall strategy being pursued by Revenue to combat fuel laundering is working.
A report recently published by a committee of the British-Irish Parliamentary Assembly, entitled Cross-border Police Cooperation and Illicit Trade, found that "the current level of cooperation between An Garda Síochána and the PSNI was excellent with evidence that both police forces worked closely together, formally and informally, on many issues". It also found that "the joint Cross-border Policing Strategy, first launched in 2010, which has contributed to the detection of criminal activity and better public safety across the island of Ireland by enhancing the policing capabilities of both police services". It also found that "an all-island approach is necessary to tackle cross-border illicit trade". The committee welcomed "the development of the multi-agency Cross-border Fuel Fraud Enforcement Group and the Cross-border Tobacco Fraud Enforcement Group since its last inquiry".
The 2014 annual report of the Revenue Commissioners, which was published last week, states:
Revenue's response to the threat posed by criminal activities such as fuel and tobacco fraud and drug smuggling includes intelligence gathering, profiling of suspects and implementation of effective operational intervention programmes. Inter-agency cooperation involving other national and international law enforcement agencies is also critical. This includes the sharing of intelligence, proactive profiling of criminal networks, and joint operations.
The Minister for Finance and officials within that Department continue to monitor this issue through interaction with industry and with national and international customs and law enforcement agencies. It also operates on the basis of its own experiences on the ground. The Minister has always maintained that he will act on the advice received and introduce whatever measures are required to tackle the issue. It is on this basis that we do not propose to accept this amendment
I welcome the efforts that have been undertaken by both the Executive in the North and the Government in the South to stamp out this activity, which is a disaster for the economies on either side of the Border. These activities gut the local economies within a radius of 30, 40 or 50 miles of the Border. Unfortunately, the swings we see on a regular basis mean at some stages that the town on the Northern side of the Border is the boom town and the town on the Southern side is a ghost town. As changes in excise and customs take place, that can change to the other side depending on what way the taxes fall at a particular time. Like everything, it is not the case that nothing is being done. Substantial efforts are being made. This amendment seeks to mandate the Government to ensure far more is done. I suggest that the only real solution to this problem involves the Southern and Northern Governments working out ways to get rid of the taxation and excise differences between the North and the South. At a time when we are talking about an all-Ireland energy market and an all-Ireland economy, we need to make sure these differences do not exist and therefore no commercial energy is in place for people to carry out these activities.
Amendment put and declared lost.
SECTION 40
I move amendment No. 30:
In page 35, line 35, to delete "Part 7 of the Taxes Consolidation Act 1997" and substitute "Part 7".
Amendment agreed to.
Section 40, as amended, agreed to.
SECTION 41
I move amendment No. 31:
In page 36, line 38, to delete "Commissioners" and substitute "Minister".
This amendment provides for the application by the State of certain EU instruments in relation to co-operation between member states in combating customs offences.
Amendment agreed to.
I move amendment No. 32:
In page 37, to delete lines 4 to 8 and substitute the following:
"(10) (a) Without prejudice to the generality of subsection (4), any person who uses personal data from the Customs Information System (CIS) other than for the purpose of the aim specified in Article 1(2) of the CIS Decision, shall—
(i) where the case is one to which paragraph (b) applies, be guilty of an offence under section 19(6) of the Data Protection Act 1988, or
(ii) where the case is one to which paragraph (c) applies, be guilty of an offence under section 22(1) of that Act.
(b) This paragraph applies to a case in which—
(i) the person referred to in paragraph (a) is a data controller within the meaning of the Data Protection Act 1988 in respect of whom there is an entry in the register established and maintained under section 16 of that Act or an employee or agent (other than a data processor within the meaning of that Act) of such a data controller, and
(ii) the use of the data for the purpose referred to in paragraph (a) is done knowingly.
(c) This paragraph applies to a case in which—
(i) the person referred to in paragraph (a) is not a data controller, or an employee or agent of a data controller, as referred to in paragraph (b)(i), and
(ii) the use made of the data by the person involves the disclosure of the data to another person.".
This amendment provides for the application by the State of certain EU instruments in relation to co-operation between member states in combating customs offences - namely, the Naples II Convention - and the application of certain aspects of a Council Decision on the use of the customs information system, which is used in connection with customs offences.
Amendment agreed to.
Section 41, as amended, agreed to.
NEW SECTION
As amendments Nos. 33 and 43 are related, they may be discussed together.
I move amendment No. 33:
In page 37, between lines 32 and 33, to insert the following:
"Controls of cash entering or leaving European Union through the State
42. (1) As provided for by Article 2 of the 2005 Regulation, the Commissioners, as the customs authority in the State, are the competent authority to apply that Regulation.
(2) As provided for by Article 3 of the 2005 Regulation, any natural person entering or leaving the European Union and carrying cash of a value of €10,000 or more is obliged to make a declaration to the competent authority and, for that purpose, the declaration shall be made in writing and in such form and manner as the Commissioners may determine and be made to the Commissioners in the case of such person so entering or leaving the Community through the State.
(3) An officer of customs may seize and, in accordance with this section, detain any cash worth not less than €10,000 that is being imported into or exported from the European Union through the State in contravention of the 2005 Regulation and this section.
(4) For the purposes of checking if a person has complied with the obligation to declare, on entering or leaving the European Union, that he or she has possession of cash worth not less than €10,000, an officer of customs may do one or more of the following:
(a) question the person on so entering or leaving the European Union through the State for the purpose of establishing whether or not he or she has in his or her possession an amount of cash worth not less than €10,000;
(b) search the person’s baggage and means of transport.
(5) Where as a consequence of any response or lack of response to any question asked under subsection (4)(a) or a search carried out under subsection (4)(b), or both, an officer of customs has reasonable grounds to suspect that the person—
(a) is importing into or exporting from the European Union through the State in contravention of the 2005 Regulation and this section, or
(b) intends or is about to so import or export in contravention of the 2005 Regulation and this section,
an amount of cash worth not less than €10,000, then the officer may search the person or cause the person to be searched by another officer of customs and section 30(2), (3), (4) and (6) shall apply to the carrying out of such a search under this section.
(6) Where it is intended to prosecute for an offence under subsection (7), cash seized by virtue of this section may continue to be detained until the prosecution is finally determined.
(7) A person who fails to make a correct and complete declaration as required by subsection (2) commits an offence and is liable on summary conviction to a fine of €5,000.
(8) In this section "2005 Regulation" means Regulation (EC) No. 1889/2005 of the European Parliament and of the Council of 26 October 2005.
(9) A word or expression that is used in this section and is also used in the 2005 Regulation has the same meaning in this section as it has in that Regulation.".
Amendment No. 33 proposes the insertion of a new section in the Bill relating to controls of cash entering or leaving the European Union through the State. Amendment No. 43 is a technical follow-through provision that is necessary as a consequence of amendment No. 33. The effect of these amendments will be to ensure the 2007 statutory instrument is revoked by the Bill.
Amendment agreed to.
Sections 42 to 45, inclusive, agreed to.
SECTION 46
Amendments Nos. 34 and 35 are related and may be discussed together.
I move amendment No. 34:
In page 39, line 30, to delete "Appeal Commissioners" and substitute "Commissioners".
Amendments Nos. 34 and 35 deal with the same section of the Bill. Amendment No. 34 deals with appeals made to the appeal commissioners where a person is aggrieved with an appeal decision by the Revenue Commissioners under section 45. This is a technical amendment to clarify that, at present, appeals to the appeal commissioners against decisions made by Revenue are, in fact, submitted to Revenue. The appeal is then passed on to the appeal commissioners for their hearing and determination.
Amendment agreed to.
I move amendment No. 35:
In page 39, lines 31 to 33, to delete all words from and including ", whose" in line 31 down to and including "law" in line 33 and substitute ". Any person who wishes to, may appeal this decision to the District Court".
Amendment put and declared lost.
Section 46, as amended, agreed to.
Sections 47 to 49, inclusive, agreed to.
NEW SECTIONS
I move amendment No. 36:
In page 41, after line 7, to insert the following:
"Interest
50. Where any duties of customs which a person is liable to pay to the Commissioners are not so paid, simple interest on the amount shall be paid by the person to the Commissioners and such interest shall be calculated from the date on which the duties of customs became payable and at the rate specified in section 991(1)(d) of the Taxes Consolidation Act 1997.".
Amendment No. 36 inserts a new section in the Bill relating to the charging of interest on late payments of customs duties. The purpose of the new section is to provide for the rate of interest due on customs duties not paid by the date on which such duties became payable. The customs code already provides for the liability to interest charges on unpaid customs duty, but leaves the rate of such interest to be determined by the member state.
Amendment agreed to.
I move amendment No. 37:
In page 41, after line 7, to insert the following:
"Amendment of section 1078 (Revenue offences) of the Taxes Consolidation Act 1997
51. Section 1078 of the Taxes Consolidation Act 1997 is amended in subsection (2)—
(a) by substituting the following for paragraph (d):
“(d) knowingly or wilfully issues or produces any incorrect invoice, receipt, instrument or other document in connection with any tax or in connection with the importation into the State or exportation from the State of any goods in contravention of any prohibition or restriction on their importation or exportation for the time being in force,",
(b) by substituting the following for paragraph (j):
"(j) (i) obstructs, impedes, assaults or interferes with any officer of the Revenue Commissioners, or any other person, in the exercise or performance of powers or duties under the Acts for the purpose of any tax or in connection with the importation into the State or exportation from the State of any goods in contravention of any prohibition or restriction on their importation or exportation for the time being in force, or
(ii) attempts in any way to coerce or intimidate any officer of the Revenue Commissioners, or any other person, in connection with the performance of powers or duties under the Acts.".".
Amendment No. 37 inserts a new section in the Bill relating to the amendment of section 1078 of the Taxes Consolidation Act 1997. Section 1078 of the 1997 Act relates to Revenue offences. The new section makes two amendments to section 1078 of the Taxes Consolidation Act 1997. Paragraph (a) substitutes paragraph 1078(2)(d) of the Taxes Consolidation Act 1997 so as to expand it to provide for an additional offence in relation to the issuing or production of an incorrect document in connection with the importation or exportation of any goods that are subject to a prohibition or restriction on their importation into or exportation from the State. Paragraph (b) substitutes paragraph 1078(2)(j) of the Taxes Consolidation Act 1997 so as to expand it to provide for an offence where an officer of the Revenue Commissioners is obstructed, impeded, assaulted or interfered with in the exercise or performance of his or her powers or duties for the purpose of any tax or in connection with the importation into or exportation from the State of any goods in contravention of any prohibition or restriction on the importation or exportation of such goods. We may have to make a further amendment to the section on Report Stage.
Amendment agreed to.
SCHEDULE 1
Amendments Nos. 38 to 42, inclusive, are related and may be discussed together.
I move amendment No. 38:
In page 42, between lines 9 and 10, to insert the following:
"
|
1 |
1805 (45 Geo. 3) c.121 |
Smuggling Act 1805 |
The whole Act |
".
Amendments Nos. 38 and 39 add the Smuggling Act 1805 and the Smuggling Act 1819, respectively, to Part 1 of Schedule 1 of the Bill. Part 1 sets out the Acts to be repealed.
Will the Minister of State explain the Acts?
Pardon me?
I am only joking.
It might be worth noting that following consultation with the statute law revision unit in the Department of Public Expenditure and Reform, the Smuggling Acts 1805 and 1819 were discovered to be still extant in respect of Ireland, although they had been repealed by the Statute Law Revision Act 1825 in respect of the rest of the then United Kingdom. All of us, as the good republicans we are, will be very interested to note that.
Amendment agreed to.
I move amendment No. 39:
In page 42, between lines 12 and 13, to insert the following:
"
|
4 |
1819 (59 Geo. 3) c.121 |
Smuggling Act 1819 |
The whole Act |
".
Amendment agreed to.
I move amendment No. 40:
In page 42, to delete lines 34 to 36 and substitute the following:
"
|
15 |
1883 (46 & 47 Vict.) c.55 |
Revenue Act 1883 |
S.3, S.4, S.5, S.6, S.7, S.8, S.9, S.11 |
".
Amendment agreed to.
I move amendment No. 41:
In page 44, between lines 5 and 6, to insert the following:
"
|
1 |
S.I. No. 189 of 1964 |
Customs and Excise (Aircraft) Regulations 1964 |
The whole Regulations |
".
Amendment agreed to.
I move amendment No. 42:
In page 44, between lines 12 and 13, to insert the following:
"
|
5 |
S.I. No. 131 of 1967 |
Customs and Excise (Aircraft) (Amendment) Regulations 1967 |
The whole Regulations |
".
Amendment agreed to.
I move amendment No. 43:
In page 45, after line 11, to insert the following:
"
|
24 |
S.I. No. 281 of 2007 |
European Communities (Controls of Cash Entering or Leaving the Community) Regulations 2007 |
The whole Regulations |
".
Amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 agreed to.
TITLE
Question proposed: "That the Title be the Title to the Bill."
I give notice it may be revised on Report Stage to add to what is already a very Short Title.
Question put and agreed to.
I thank the Minister of State and his officials for attending.