Dáil Éireann díospóireacht -
Tuesday, 23 Jun 1964

Vol. 211 No. 4

Pawnbrokers Bill, 1963—Committee and Final Stages.

Sections 1 to 5, inclusive, agreed to.

NEW SECTION

Minister for Justice (Mr. Haughey)

I move amendment No. 1:

Before section 6 to insert a new section as follows:

6. (1) The enactments set out in the First Schedule are hereby repealed to the extent specified in the third column of that Schedule.

(2) Notwithstanding the repeal of the said enactments, those enactments shall, until the 31st day of July, 1965, continue to have effect for the purpose of the grant of a pawnbroker's licence to a person who is not at the commencement of this Act the holder of such licence.

It is suggested that we take amendments Nos. 1 and 8 together. We are proposing to delete section 6 and insert a new section. This is largely a drafting matter and the idea is to obviate the need for a special order under the existing subsection (2) to effect the repeal of enactments under Part II of the First Schedule. Amendment No. 8 is consequential.

Mr. M.J. O'Higgins

This is for the purpose of fixing a definite date, 31st July, 1965, instead of leaving it open.

Amendment agreed to.

Section 6 deleted.

SECTION 7.

Mr. Haughey

I move amendment No. 2:

To substitute the following subsection for subsection (2):

"(2) A person who is the holder of a pawnbroker's licence granted under the Stamp Duties (Ireland) Act, 1842, shall, for so long as he holds such licence, be deemed to be duly licensed for the purpose of subsection (1) of this section until the 31st day of July next following the commencement of this Act."

This is a drafting amendment. Persons who are carrying on the business of pawnbroking at the moment are licensed under the Stamp Duties (Ireland) Act, 1842 and these licences have a currency of one year commencing on 1st August. It would be inequitable to require an existing pawnbroker who will renew his licence on the 1st August next under the present law to take out another licence under the Bill in respect of the same year.

The subsection as originally drafted was designed to exempt existing pawnbrokers from the requirement of securing a licence under section 8 of the Bill in respect of the period from the commencement of the Act to the 31st July next following but the exemption was expressed in a negative form. The substituted subsection proposed in the amendment will do the same thing in a positive and more comprehensible way.

Mr. M.J. O'Higgins

This makes the section much clearer. The wording as it originally stood was not very clear. It was not desirable, anyhow.

Amendment agreed to.

Section 7, as amended, agreed to.

Sections 8 to 10, inclusive, agreed to.

SECTION 11.

Mr. Haughey

I move amendment No. 3:

To insert the following subsection before subsection (2):

"(2) Where a pawnbroker is convicted of an offence mentioned in subsection (1) of this section and the court orders his licence to be suspended or cancelled and the pawnbroker appeals against the conviction or, if he has been convicted of more than one of those offences, against all of the convictions, the court before which he was convicted may, if it thinks fit, suspend the operation of its order suspending or cancelling the licence pending the hearing of the appeal."

Subsection (1) of this section empowers the court to suspend or cancel the licence of a pawnbroker convicted before it of larceny, receiving stolen goods, etc. In the event of the pawnbroker appealing against the conviction, the court, it is considered, should have power to suspend the operation of its order suspending or cancelling the licence pending the hearing of the appeal, and this is the purpose of the new subsection.

Mr. M.J. O'Higgins

It is quite clear this remains discretionary to the court, is it not?

Mr. Haughey

Yes, this merely empowers the court.

Amendment agreed to.

Section 11, as amended, agreed to.

Sections 12 to 27, inclusive, agreed to.

SECTION 28.

Mr. Haughey

I move amendment No. 4:

In subsection (3), paragraph (a), page 11, line 12, to delete "and", in paragraph (b), line 15, after "particular" to insert "and" and, after paragraph (b), to insert the following paragraph:

"(c) for failing to deliver the pledge to the person immediately upon the return of the form of statutory declaration, where the failure is due to the difficulty of identifying the pledge by reason of the pledge number not being known."

I put down this amendment to meet representations made by the Irish Pawnbrokers Association. I am told that pawnbrokers frequently experience difficulty in identifying pledges claimed by owners or by pawners who have lost their tickets, largely because the pledge number cannot be quoted. Under the section, claims will be made by statutory declaration—forms are provided for in the Sixth Schedule. Subsection (2), however, may be read, as it stands, as requiring the pawnbroker to deliver up the pledge immediately on production of the statutory declaration. The amendment provides an indemnity where the failure is due to the difficulty of identifying the pledge by reason of the pledge number not being known.

Amendment agreed to.

Section 28, as amended, agreed to.

Section 29 agreed to.

SECTION 30.

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

Mr. M.J. O'Higgins

I should like to ask the Minister if he gave further consideration to the point I raised on Second Stage with regard to the nomination of auctioneers to carry out auctions of pawnbrokers' pledges. This section provides that every auction of pawnbrokers' pledges shall be conducted by an auctioneer nominated by the Minister. I made the point on Second Reading—and I still think it is a substantial one, now that there is an auctioneers' association in charge of their own affairs—that any nomination of this sort could be and should be referred to the association or at least the Minister should be required to consult with the association before making a nomination of this sort.

Mr. Haughey

The position is that the Pawnbrokers Association have suggested to me they should be free to go to any auctioneer they wish. Their fear is that if only one or two or a limited number of auctioneers are nominated by me there may be a monopoly. My reply to that is that we are open at any time to receive a complaint from the Pawnbrokers Association and to consider it and see if the situation is such that it would be necessary to appoint further auctioneers. There would be no difficulty about that.

However, I still think that as the guardian of public welfare, the Minister for Justice is the person who should be authorised to nominate suitable auctioneers. To my mind, the suggestion of Deputy M. J. O'Higgins with regard to consulting the association is a sensible one and I am prepared to give an undertaking that before appointing anyone we should satisfy ourselves, either through consultation with the association or otherwise, that the person to be appointed is suitable and competent in every way. Off the cuff, I would say that through consultation with the Auctioneers Association we would get very useful advice as to whether a particular auctioneer was suitable and competent.

Mr. M.J. O'Higgins

I do not make any secret of my views on this. I do not wish it to be suggested that this might become a question of political patronage in the appointment of such auctioneers. The Minister is sufficiently experienced in business to know that you may have a very good, a very straightforward honest auctioneer who is not particularly good at the business of conducting auctions. He may have quite a worthwhile practice in the ordinary business of selling houses and so on which is not done, by and large, at auctions but through advertising and negotiation.

It is not every auctioneer who is a good man with the hammer, standing up. All the auctions to be arranged in respect of pawnbrokers' pledges will require a good hammer man. If a concentration of these auctions were to be entirely in the hands of a very limited number of auctioneers, possibly only one, or if he were appointed not because of his skill as an auctioneer but because of his political views, then the Minister would not be doing a good day's work either for the people whose pledges are pawned or for the pawnbrokers. I am not suggesting the Minister has anything like that in mind, but when a provision like this is written into a Bill, it is there virtually for all time. I forget when the last Act dealing with pawnbrokers was passed.

Mr. Haughey

It was 1788.

Mr. M.J. O'Higgins

I thought it was a couple of hundred years ago.

Mr. Haughey

Before our time.

Mr. M.J. O'Higgins

I am right, therefore, in assuming that whatever we put into this section may be there for a couple of hundred years. This is the time to check any possibility of abuse that might arise in the future. I am quite satisfied with the Minister's assurance that as far as he is concerned he will consult with the Auctioneers Association with regard to the capability of the auctioneer to be appointed. I am satisfied in so far as the present Minister is concerned, but it may arise in 20, 30 or 40 years, and now is the time we should take care of it. I do not press the point.

Question put and agreed to.

Sections 31 and 32 agreed to.

SECTION 33.

Mr. Haughey

I move amendment No. 5:

In subsection (1), page 12, line 6, after "thereon" to insert "and the fees paid by the pawnbroker in respect of the sale".

Amendment No. 6 is cognate. They are purely drafting amendments.

Mr. M.J. O'Higgins

To provide that the fees will be deducted?

Mr. Haughey

That is so.

Amendment agreed to.

Mr. Haughey

I move amendment No. 6:

In subsection (2), page 12, line 17, after "charges" to insert "and the fees paid by the pawnbroker in respect of its sale".

Amendment agreed to.

Section 33, as amended, agreed to.

Section 34 agreed to.

SECTION 35.

Question proposed: "That section 35 stand part of the Bill."

Mr. M.J. O'Higgins

Has the Minister considered this matter further since the Second Reading? I do not suppose it is the Minister's fault that the Second Reading was such a considerable time ago, but he has had ample opportunity of considering the matter. I do not like the appearance of the section at the moment. It requires a pawnbroker, in certain circumstances set out in the section, where he is suspicious to take all reasonable steps to detain any person offering or showing such property and to seize the property and deliver the property and the person as soon as practicable, into the custody of a member of the Garda Síochána. If the pawnbroker fails in that, under subsection (3) he is to be guilty of an offence.

It seems to me a lot is left in the air there. An unfortunate pawnbroker who is not of particularly strong physique may, simply because of his physique, find himself guilty of an offence because he is not in a position to tackle a person offering suspicious property for pledging. By and large, it is possibly a question of interpreting what reasonable steps are and that each case must be considered on its merits—that what would be reasonable steps in one case might not be in another. However, it is a difficult section and I should have preferred it if the Minister had come in with an amendment or with some indication that he would give it further consideration.

Mr. Haughey

I assure the Deputy we have given it a great deal of thought since the Second Stage. Taking all aspects into account, we have decided against any amendment. We did consider simply providing in the section that the pawnbroker would be authorised to detain a person and seize the articles instead of requiring him to do so. As Deputy O'Higgins says, it is all a question of what we mean by all reasonable steps. I presume a person who is physically frail could not reasonably be expected to use physical force to detain a pawner and that therefore there would be no question of his committing an offence for failing to tackle the person physically, but there could be other reasonable steps which even frailty would not prevent him from taking. He might, for instance, turn the key in the lock and prevent the suspected person from leaving the shop.

Mr. M.J. O'Higgins

Suppose the Minister were in the position of the pawnbroker and that Deputy Seán Dunne were the pawner.

Mr. Haughey

The Deputy is casting us in our most unlikely roles.

Mr. S. Dunne

The Minister is typed in the latter role, anyway.

Mr. Haughey

On the whole, I came to the conclusion that we should leave it as it is. In fact, the pawnbrokers themselves were inclined to raise discussions with us but, in the end, they became satisfied that it is all right as it is.

Question put and agreed to.

Section 36 agreed to.

SECTION 37.

Question proposed: "That section 37 stand part of the Bill."

Mr. M.J. O'Higgins

The same point as I raised on Section 35 arises here, so, I shall not repeat what I have said.

Question put and agreed to.

Sections 38 to 45, inclusive, agreed to.

SECTION 46.

Mr. Haughey

I move amendment No. 7:

To delete subsections (2) to (5) and substitute the following subsections:

"(2) (a) Where a member of the Garda Síochána finds in the course of an inspection under this section any article which he has reasonable grounds for believing to have been stolen, unlawfully obtained or unlawfully pawned, he may seize, carry away and detain the article or impound the article in the pawnbroker's premises.

(b) Where a member of the Garda Síochána carries away an article under this subsection, he shall give to the pawnbroker a receipt for the article.

(c) Where a member of the Garda Síochána impounds an article under this subsection, the pawnbroker shall, when so requested by a member of the Garda Síochána, produce the article at the hearing of the application provided for by subsection (3) of this section.

(3) Where a member of the Garda Síochána detains or impounds any article under this section, he shall as soon as is reasonably possible, apply to the District Court for an order for the disposition of the article and, on such application, the Court shall—

(a) if satisfied that the article was stolen, unlawfully obtained or unlawfully pawned, order the return of the article to its owner, and

(b) in any other case, order the return of the article to the pawnbroker concerned.

(4) The Court, when making an order under this section for the return of an article to its owner, may order such return either with or without payment by the owner to the pawnbroker of the whole or part of the amount of the loan obtained by virtue of the pawning of the article and shall have regard to any failure on the part of the owner to exercise reasonable care in the protection of his property, except to the extent that the pawnbroker has been unjustly enriched.

(5) A member of the Garda Síochána shall not exercise the powers conferred by this section unless he is authorised in writing so to do by a member of the Garda Síochána not below the rank of inspector and, when exercising any of such powers, he shall, if requested by any person affected, produce the authorisation.

(6) A person—

(a) who obstructs or interferes with a member of the Garda Síochána in the exercise of a power conferred by this section, or

(b) who, on being called on under this section by a member of the Garda Síochána to produce any book, catalogue, document or record in his power, possession or procurement, refuses to do so, or

(c) who fails to comply with a request under paragraph (c) of subsection (2) of this section, shall be guilty of an offence."

This is an amendment which I am putting forward in the hope that it will meet certain representations which were made to me by the Irish Pawnbrokers' Association. The section as it stands empowers a member of the Garda Síochána to seize, carry away and detain any article found on an inspection of a pawnbroker's premises to have been stolen etc. and to apply to the district court for an order as to its disposal. The pawnbrokers have objected to this provision and have represented that such articles should be merely impounded on the pawnbroker's premises. When removed from the pawnbroker's premises, difficulties of identification may arise for the pawnbroker should he be called upon to give evidence in court subsequently in relation to proceedings for an order of disposal.

While I am accepting these representations on behalf of the Irish Pawnbrokers' Association, it is recognised that occasionally it will be necessary for the Garda to take away such articles in the course of their investigations. The amendment provides, therefore, for two alternative procedures. On the one hand, it provides that the articles may be impounded on the pawnbroker's premises and, on the other hand, it provides that in certain circumstances the articles may be taken away by the Garda Síochána.

Amendment agreed to.

Section 46, as amended, agreed to.

Section 47 agreed to.

NEW SCHEDULE.

Mr. Haughey

I move amendment No. 8:

Before the First Schedule to insert the following Schedule:

"FIRST SCHEDULE

ENACTMENTS REPEALED

Session and Chapter or Number and Year	Short Title or Subject-matter	Extent of Repeal
26 Geo. 3, c. 43 (Ir).	Pawnbrokers Act, 1786.	The whole Act.
28 Geo. 3, c. 49 (Ir.).	Pawnbrokers Act, 1788.	The whole Act.
44 Geo. 3, c.xxii.	Duties on certain licences. (1804).	So much of the Act as relates to pawnbrokers.
48 Geo. 3, c. 140.	Dublin Police Magistrates Act, 1808.	Sections 50 and 51, in so far as they relate to pawnbrokers; sections 65, 66, 67, 69 and 70; section 75, in so far as it relates to pawnbrokers.
5 Geo. 4, c. 102.	Dublin Justices Act, 1824.	Section 22.
5 & 6 Will. 4, c. 62.	Statutory Declarations Act, 1835.	Section 12.
5 & 6 Vict. c. 82.	Stamp Duties (Ireland) Act, 1842.	Section 17, in so far as it relates to pawnbrokers; section 18; so much of the Schedule as relates to the duty payable on pawnbrokers' licences.
16 & 17 Vict. c. 59.	Stamp Act, 1853.	Section 20, in so far as it relates to the duty payable on pawnbrokers' licences.
17 & 18 Vict. c. 83.	Stamp Act, 1854.	Section 20.
27 & 28 Vict. c. 56.	Revenue (No.2) Act, 1864.	Section 6, in so far as it relates to pawnbrokers.
61 & 62 Vict. c. 37.	Local Government (Ireland) Act, 1898.	Section 67.
8 Edw. 7, c. 24.	The Summary Jurisdiction (Ireland) Act, 1908.	In section 4, the words “ or receives from him, or on his behalf, any such article in pledge or pawn”.
8 Edw. 7, c. 67.	Children Act, 1908.	Subsection (12) of section 133.
No. 17 of 1925.	Firearms Act, 1925.	Section 20.
No. 9 of 1943.	Pawnbrokers (Divisional Auctioneers) Act, 1943.	The whole Act.

We have dealt with this amendment.

Mr. M.J. O'Higgins

It was taken with No. 1.

Mr. Haughey

It is mainly a drafting amendment.

Amendment agreed to.

First Schedule deleted.

SECOND SCHEDULE.

Mr. Haughey

I move amendment No. 9:

In paragraph 1, page 16, line 11, to delete "or part of two shillings".

Amendments Nos. 9, 10, 14, 16 and 17, perhaps, might be discussed together. These amendments are consequential on the acceptance of the representations made by the Irish Pawnbrokers' Association in regard to the provisions of Part I of the Fifth Schedule which determine the maximum rate of interest that may be charged on loans.

Under the present law if the period of a loan is less than a month it is reckoned as a month; if it is more than one month, any fraction of a month, provided it exceeds three days, is reckoned as a whole month. In the Bill—Fifth Schedule, Part I—it was proposed to alter this and to allow the pawnbroker to charge a full month's interest only where the fractional period exceeded 14 days. Where the period did not exceed 14 days, half the normal interest rate would be chargeable.

The Association pointed out that the provision would involve them in "farthing" calculations and introduce unnecessary complications into their business. In return for the withdrawal of the half rate of interest provision, the Association offered two concessions which I have accepted as serving equally well the interests of the pawner. What is now proposed is that an additional month's interest will not be charged unless the fractional period exceeds seven days. It is three days under the present law. There will be no additional interest in the second month unless the period exceeds seven days. Furthermore, any fraction of 2/-in a loan which is more than 2/- will be disregarded altogether for the purpose of calculating interest. As the Bill is drafted, a fraction of 2/- in a loan is treated as 2/- for interest purposes.

Amendment agreed to.

Mr. Haughey

I move amendment No. 10:

For the note to paragraph 1, substitute the following:

"Note

(1) If the term of the loan is less than one calendar month, it will be charged for as one month.

(2) After the first calendar month, a part of a month exceeding seven days will be charged for as a month and a part of a month not exceeding seven days will not be charged for.

(3) Where the loan is less than two shillings, it will be charged for as two shillings. Where it exceeds two shillings or any even multiple of two shillings, any odd fraction of two shillings will not be charged for."

Amendment agreed to.

Mr. Haughey

I move amendment No. 11:

In paragraph 5, page 17, line 17, to delete "two pence" and substitute "six pence."

Part V of the Fifth Schedule proposes a charge of 2d. for a form of statutory declaration which, under the machinery being established by Section 28 of the Bill, the pawnbroker must give to a person claiming to be the owner or pawner of a pledge, but who has not the pawn ticket. As stated in relation to amendment No. 4, such persons are usually unable to quote the pledge number or even to give the approximate date of pawning, and difficulties arise for the pawnbroker in tracing the pledge. I am, therefore, accepting proposals put to me by the Association to the effect that the fee for the form of declaration should be increased to 6d. to offset to some extent at least the cost to the pawnbroker of searching for pledges claimed on such declarations.

Amendment agreed to.

Second Schedule, as amended, agreed to.

THIRD SCHEDULE.

Mr. Haughey

I move amendment No. 12:

In Part I, page 18, between lines 24 and 25, in Part II, page 19, between lines 8 and 9, and in Part III, page 19, between lines 43 and 44, to insert "Pledge No."

This amendment is simply to make it clear that the pledge number must appear on the pawn ticket.

Amendment agreed to.

Mr. Haughey

I move amendment No. 13:—

In Part I, page 18, line 28 and line 29 in Part II, page 19, line 12 and line 13, and in Part III, page 19, line 47 and line 48, after "pawner" to insert ", as entered in the Pledge Book".

The combined effect of sections 14, 15 and 16 of the Bill could possibly be read as requiring pawnbrokers to investigate the accuracy of names and addresses given by pawners. As some Deputies may know, pawners are not always anxious to give their correct names and addresses. A pawnbroker should therefore be regarded as complying with the law if he enters up the name and address according to the information supplied by the pawner. This is, in fact, the present law.

Mr. M.J. O'Higgins

What in fact is being done is that the name is supplied and——

Mr. Haughey

The name is entered in the pledge book.

Amendment agreed to.

Mr. Haughey

I move amendment No. 14:

To delete the note to subparagraph (b) of paragraph 1 of Part III and substitute the following:

"(If the term of the loan is less than one calendar month, it will be charged for as one month. After the first calendar month, a part of a month exceeding seven days will be charged for as a month and a part of a month not exceeding seven days will not be charged for)."

An Ceann Comhairle

This amendment has already been discussed.

Amendment agreed to.

Third Schedule, as amended, agreed to.

NEW SCHEDULE.

Mr. Haughey

I move amendment No. 15:

Before the Fourth Schedule to insert the following Schedule:

"FOURTH SCHEDULE

PAWNBROKER'S BOOKS

PART I

Pledge Book

.......................................................Pawnbroker, of.......................................................

Date of pawning	Number of pledge	Date redeemed or sold	Amount of loan	Description of pledge	Name and address of pawner, according to the information given by the pawner	Name and address of owner if other than pawner, according to the information given by the pawner
(1)	(2)	(3)	(4)	(5)	(6)	(7)

PART II

Sale Book

Date of sale:..........................................................................................

Name and place of business of auctioneer:...............................................................

Date of sale	Number of pledge in pledge book	Description of pledge	Amount of loan	Amount realised on sale of pledge
(1)	(2)	(3)	(4)	(5)

This again is really to make life easier for the members of the Irish Pawnbrokers Association. The form of pledge book and sale book prescribed in the Bill differed from that in use by pawnbrokers at present, particularly in the order of sequence of columns. The new form of pledge book now proposed in the amendment follows closely that in use at present and I think is more suitable all round.

Mr. M.J. O'Higgins

Is there anything in the old form in the Fourth Schedule that is not in the new one?

Mr. Haughey

No material change is being made.

Mr. M.J. O'Higgins

I think it is all covered except that the sequence is different.

Amendment agreed to.

An Ceann Comhairle

This deletes the Fourth Schedule.

Fourth Schedule deleted.

FIFTH SCHEDULE.

Mr. Haughey

I move amendment No. 16:

In Part I, paragraph 2, to delete subparagraph (b) and substitute the following subparagraph:

"(b) Where the term of the loan is more than one month but is not an even multiple of one month, the odd fraction of a month shall, if it exceeds seven days, be reckoned as one month; if it does not exceed seven days, it shall be disregarded."

This amendment and No. 17 have already been discussed.

An Ceann Comhairle

They were discussed with No. 9.

Amendment agreed to.

Mr. Haughey

I move amendment No.17:

In Part I, paragraph 2, to delete subparagraph (d) and substitute the following subparagraph:

"(d) where the loan is not an even multiple of two shillings, the odd fraction of two shillings shall be disregarded."

Amendment agreed to.

Seventh Schedule, as amended, agreed to.

Mr. Haughey

I move amendment No. 18:

In part V. page 22, line 36, to delete "two pence" and substitute "six pence".

An Ceann Comhairle

This amendment was discussed with No. 11.

Amendment agreed to.

Fifth Schedule, as amended, agreed to.

Sixth Schedule agreed to.

SEVENTH SCHEDULE.

Mr. Haughey

I move amendment No. 19:

In paragraph 4, page 24, line 24, to delete "some public newspaper" and substitute "a public newspaper circulating in the area in which the pawnbroker's premises are situated".

This is a fairly practical amendment and it is to prevent the pawnbroker, if he felt inclined to do so, from putting an advertisement in a newspaper which circulated in an area remote from the area in which he operates and instead of saying "some public newspaper" the amendment proposes to substitute "a public newspaper circulating in the area in which the pawnbroker's premises are situated".

Mr. M.J. O'Higgins

It follows very much the same as the court notices that are now necessary.

Amendment agreed to.

Mr. Haughey

I move amendment No. 20:

To delete paragraph 5 and substitute the following paragraph:

"5. The advertisement shall be inserted at least three clear days before the first day of the sale."

Again we have agreed to a suggestion by the Irish Pawnbrokers Association. The Association were opposed to the provision in paragraph 5 requiring that the advertisement of an auction of unredeemed pledges under the Act be inserted on two separate days. They felt one would be sufficient and I have accepted that argument as reasonable and the amendment so provides.

Amendment agreed to.

Title agreed to.

Bill reported with amendments.

Agreed to take remaining Stages today.

Bill received for final consideration and passed.