Criminal Justice Bill 2004: Report Stage (Resumed).

Debate resumed on amendment No. 62:
In page 30, between lines 2 and 3, to insert the following:
21.—In the case of an accused person tried on indictment for an offence carrying a maximum or mandatory sentence of life imprisonment, who has been acquitted, where at any time following such acquittal the Director of Public Prosecutions comes into possession of significant new evidence which demonstrates that a miscarriage of justice has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial.".
—(Mr. Howlin).

As the Deputy is not present, the amendment falls.

Amendment, by leave, withdrawn.

I move amendment No. 63:

In page 30, between lines 2 and 3, to insert the following:

21.—(1) In the case of an accused person tried on indictment for an offence, who has been acquitted, where at any time following such acquittal the Director of Public Prosecutions comes into possession of evidence which demonstrates that interference with the jury has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial.

(2) A retrial under this section shall be conducted by a special criminal court unless the Director of Public Prosecutions certifies that the ordinary courts are satisfactory for such retrial.".

The House discussed the amendment in the context of amendment No. 62 when I indicated I would send amendments Nos. 62 and 63 to the Law Reform Commission for examination.

Amendment, by leave, withdrawn.
Amendments Nos. 64 to 72, inclusive, not moved.

I move amendment No. 73:

In page 33, lines 49 to 51, to delete all words from and including ", or" in line 49 down to and including "determine," in line 51.

This is a simple amendment. Deputy Jim O'Keeffe proposes that a precise time of 28 days, as stated in the Bill, should be provided for without room for interpretation.

This amendment is a proposal that an appeal under the section must be made within 28 days. The effect of the amendment would be to eliminate the words "or such longer period not exceeding 56 days as the trial court may, on application to it in that behalf, determine, from the day on which the order is made". This provision is to allow for flexibility in certain cases. The primary period would, however, be 28 days and a reason would have to be shown for an extension to that period.

Amendment, by leave, withdrawn.

Amendments Nos. 74, 160 and 161 are related and may be discussed together.

I move amendment No. 74:

In page 34, to delete lines 5 to 44 and in page 35, to delete lines 1 to 4 and substitute the following:

"(a) by the substitution of the following subsection for subsection (1):

"(1) In this Act—

"ammunition" (except where used in relation to a prohibited weapon) means ammunition for a firearm and includes—

(a) grenades, bombs and other similar missiles, whether or not capable of being used with a firearm,

(b) any ingredient or component part of any such ammunition or missile, and

(c) restricted ammunition, unless the context otherwise requires;

"Commissioner" means the Commissioner of the Garda Síochána or a member of the Garda Síochána, or members of a particular rank in the Garda Síochána, not below the rank of superintendent appointed in writing by the Commissioner for the purpose of performing any of the Commissioner's functions under this Act;

"firearm" means—

(a) a lethal firearm or other lethal weapon of any description from which any shot, bullet or other missile can be discharged,

(b) an air gun (including an air rifle and air pistol) with a muzzle energy greater than one joule or any other weapon incorporating a barrel from which any projectile can be discharged with such a muzzle energy,

(c) a crossbow,

(d) any type of stun gun or other weapon for causing any shock or other disablement to a person by means of electricity or any other kind of energy emission,

(e) a prohibited weapon,

(f) any article which would be a firearm under any of the foregoing paragraphs but for the fact that, owing to the lack of a necessary component part or parts, or to any other defect or condition, it is incapable of discharging a shot, bullet or other missile or projectile or of causing a shock or other disablement, as the case may be,

(g) except where the context otherwise requires, any component part of any article referred to in any of the foregoing paragraphs and, without prejudice to the generality of the foregoing, the following articles shall be deemed to be such component parts:

(i) telescope sights with a light beam, or telescope sights with an electronic light amplification device or an infra-red device, designed to be fitted to a firearm specified in paragraph (a), (b), (c) or (e),

(ii) a silencer designed to be fitted to a firearm specified in paragraph (a), (b) or (e), and

(iii) any object—

(I) manufactured for use as a component in connection with the operation of a firearm, and

(II) without which it could not function as originally designed,

and

(h) a device capable of discharging blank ammunition and to be used as a starting gun or blank firing gun,

and includes a restricted firearm, unless otherwise provided or the context otherwise requires;

"firearm certificate" means a firearm certificate granted under this Act and, unless the context otherwise requires, includes a restricted firearm certificate, a firearms training certificate and a firearm certificate granted under the Firearms (Firearm Certificates for Non-Residents) Act 2000;

"firearm dealer" means a person who, by way of trade or business, manufactures, sells, lets on hire, repairs, tests, proves, purchases, or otherwise deals in firearms or ammunition;

"firearms training certificate" has the meaning given to it by section 2A of this Act;

"issuing person", in relation to the grant or renewal of a firearm certificate, authorisation or licence, means, as the case may be, the Minister, the Commissioner or the superintendent of the Garda Síochána of the district where an applicant for or holder of the firearm certificate, authorisation or licence is residing;

"Minister" means the Minister for Justice, Equality and Law Reform;

"muzzle energy", in relation to a firearm, means the energy of a projectile discharged by it, measured at its muzzle in joules;

"prohibited weapon" means and includes any weapon of whatever description designed for the discharge of any noxious liquid, noxious gas or other noxious thing, and also any ammunition (whether for any such weapon or any other weapon) which contains or is designed or adapted to contain any noxious liquid, noxious gas or other noxious thing;

"place" includes a dwelling;

"prescribed" means prescribed by regulations made under this Act;

"registered firearms dealer" means a firearms dealer who is for the time being registered in the register of firearms dealers established in pursuance of this Act;

"restricted ammunition" means ammunition which is declared under section 2B(b) of this Act to be restricted ammunition;

"restricted firearm" means a firearm which is declared under section 2B (a) of this Act to be a restricted firearm;

"working mechanism", in relation to a firearm, includes the mechanism for loading, cocking and discharging it and ejecting spent ammunition.",".

We now move on to amendments broadly related to firearms issue. On Committee Stage I agreed that the definitions relating to section 1 of the principal Act should be consolidated as much as possible to provide ease of reference. Amendment No. 74 provides for this. As part of the consolidation, I have incorporated the definition of a firearm, as provided for in section 4 of the 1990 Act, into section 1 of the principal Act. Accordingly, my proposed amendments to section 1 of the principal Act and section 4 of the 1990 Act on Committee Stage have also been incorporated into a consolidated section 1 of the 1925 Act.

Amendment agreed to.

I move amendment No. 75:

In page 35, line 36, to delete "club or shooting range" and substitute "club, shooting range or any other place".

The purpose of the amendment is delete the term "club or shooting range" and substitute the words "club, shooting range or any other place". It is a technical amendment to provide that a superintendent may authorise, if he is satisfied to do so on public safety and security grounds, a person to possess, to carry and use a firearm in a place other than a shooting range without having the necessity of having a firearms certificate for the firearm in question.

Amendment agreed to.

Amendments Nos. 76 to 85, inclusive, and 87 are related while amendment No. 86 is an alternative to amendment No. 85. The amendments may be discussed together.

I move amendment No. 76:

In page 36, line 22, to delete "over 14 years of age" and substitute ", aged not less than 16 years,".

Most of the amendments in this group relate to the ages at which people would be allowed to hold various certificates or perform various acts. Deputy Jim O'Keeffe believes the age limits provided for in the Bill are too low and should be raised to those proposed in the amendments. As the Bill stands, the provisions on supervision could result in an 18 year old supervising a 14 year old with a gun or a 21 year old supervising a 16 year old with a gun.

Deputy O'Keeffe has tabled four amendments to the section. With regard to increasing from 14 to 16 years the age at which a training certificate could be granted, I came under sustained pressure from the shooting sport lobby, particularly those involved in competitive shooting, to provide that it should be lawful for young shooting enthusiasts to be able to use but not own a firearm at the age of 14 years. Competitions are held internationally for people of that age and it would be strange if Irish competitors could not practise in this jurisdiction and would have to travel abroad to practise for such competitions.

I stress the certificate will not allow the person to own a firearm. Under the law, as it stands, a person of 16 years is legally entitled to hold a full firearms certificate and own a firearm. Providing that a person may only be issued with a firearms training certification having attained 16 years of age would defeat the purpose of the training certificate, which is to train persons in the use of a firearm before they are legally entitled to hold one.

In so far as the Deputy's proposal to raise the age limit at which a person can engage in the instruction of a firearm from 18 to 21 years is concerned, many shooting clubs are attached to colleges where the membership age can be 18 years or under. My proposal to allow persons of 18 years to act as instructors will facilitate such clubs. For example, the Trinity College rifle club has members of that age. As I have said, the purpose of the training certificate is to facilitate the training of persons in the safe use of firearms by members of established clubs and under controlled circumstances. It does not permit those people to own a gun. The age at which persons may be trained in the safe use of firearms that I am proposing strikes the correct balance and ensures that a young person may be properly and safely trained before he or she is legally entitled to own a firearm. I oppose the amendment on these grounds.

Deputy Jim O'Keeffe's amendment No. 86 provides that the period of validity of the firearm training certificate be reduced from three to two years. All the licences and authorisations that can be granted under the Firearms Act are required to be renewed annually. This creates a significant administrative burden on the Garda Síochána. To reduce the administrative burden I propose that the period of validity of licences and authorisations be generally increased to three years. I am satisfied that the firearms training certificate should be similarly valid for three years.

Deputy Ó Snodaigh proposes six amendments to the section. The effect of his amendments Nos. 77 and 78 would be to allow the issue of a firearms training licence only in respect of pistols and rifles used for target shooting. It would prohibit the issue of a training certificate for shotguns and hunting rifles. The purpose of the training certificate is to allow young persons to be trained under strict supervision in the safe use of firearms before they are legally entitled to own and use a firearm. To restrict such training to rifles and pistols used for target practice defeats the purpose of the training certificate and I oppose those amendments.

Deputy Ó Snodaigh's amendments Nos. 81 and 87 are related. Their effect is to empower the Garda Commissioner to grant a licence to the organisers of international shooting events held in Ireland and to issue a firearms certificate to non-residents over 18 years of age who wish to participate in such events and a firearms training certificate to non-residents over the age of 14 who wish to compete in such events. Under section 2 of the Firearms Act 1925 a Garda superintendent has the power to authorise shooting events of the type suggested by the Deputy. In addition, under the Firearms (Firearm Certificates for Non-Residents) Act 2000, as it stands, a person of 16 years who is not ordinarily resident in the State may apply for a non-resident firearm certificate to the superintendent in the district in which he or she proposes to shoot. The application must be made within six weeks before arriving in the State and must be accompanied by a relevant fee, a European firearms pass or another duly issued licence or permit for persons travelling from outside the European Union. Regarding the issue of a firearms training certificate to non-residents over the age of 14 to allow them to participate in international shooting competitions staged in this country, the purpose of the training certificate is solely for training persons in the safe use of firearms and not for enabling persons under the age of 16 to participate in shooting competitions.

The Deputy's proposal to permit the Commissioner to grant licences for shooting competitions and issue firearms certificates to non-residents over the age of 16 are unnecessary as Garda superintendents already have that power. His proposal to allow non-residents over the age of 14 to obtain a firearm certificate and to participate in competitions in this country runs contrary to the purpose for which the certificates were being introduced.

Deputy Ó Snodaigh's amendment No. 83 provides that where a person under the age of 16 applies for a firearms training certificate he or she should be accompanied by a parent or guardian to the local Garda station when making the application. Section 30 of the Bill governs the manner and form of applications for all certificates under the Firearms Act and section 32 governs the conditions under which they can be issued. Under these sections the gardaí can require, if deemed necessary, the person to be accompanied by a parent or guardian and require the parent or guardian to provide proof of identity and his or her relationship to the applicant, and other information which they consider necessary for processing the application. Amendment No. 83 is, therefore, unnecessary.

Deputy Ó Snodaigh's amendment No. 85 is similar to Deputy Jim O'Keeffe's amendment No. 86, except that it provides that the period of validity of a firearm training certificate be reduced from three years to one year. As I said, I am extending the validity of licences generally to three years and I am satisfied that the firearms training certificate should similarly be valid for three years. The Government amendment No. 84 is a drafting amendment.

I thought I had proposed reasonable amendments. Perhaps the Minister is correct in that amendment No. 77 specifies "pistol shooting range" where it should specify "authorised shooting range". That amendment was to restrict a young person who has this firearms training certificate to giving training only in a very controlled environment, such as a rifle, pistol or authorised shooting range. Amendment No. 78 was to delete "for hunting" because although the Minister said the certificates are for training in the best and safest use of the firearm, this authorises carrying the firearm for hunting. If the Minister opposes the other amendments at least amendment No. 78 is reasonable.

On amendment No. 77, if one specifies an authorised shooting range, one can authorise a shooting range for shotguns to be available if that is the training required. This applies particularly in rural Ireland where shotgun training is required for the sons or daughters of farmers who have shotguns to protect their flock. When the Minister explained the granting of firearms training certificates he spoke of a person in his constituency who required such a licence because he was an expert in shooting and had the potential to compete at international level, perhaps at the Olympics, but could not participate in the sport in this country. Yet we are producing a training certificate that allows him to train here but not to participate in any competitions because the Minister thinks international competitions should not happen in this country. If it is good enough to happen elsewhere we should make a provision for such international competitions. This is to allow for people who are travelling to Ireland to take part in such competitions to have their certificates from abroad recognised if the Commissioner is happy.

Amendment No. 83 is reasonable considering what we are asking. It is reasonable that both the guardian and the person in question present themselves at a Garda station when making the application. It would help the garda in charge to form a view which he or she could forward to the Commissioner who deals with the applications as to whether he or she believes this is a legitimate application or a suitable person to whom to grant a certificate.

Amendment No. 85 requires that the duration of the certificate be reduced from three years to one because of the seriousness of it and amendment No. 87 is consequential on amendment No. 81.

While I accept the Minister's statement on shooting competitions and shooting ranges, can he assure me that in these circumstances an 18 year old cannot roam around the country with a 14 year old who has a certificate? Does the Minister think allowing an 18 year old and a 14 year old to walk around the countryside with guns provides adequate protection to the public?

The intention is that a person over the age of 18 and upwards with a firearms certificate will be entitled to supervise a person who has a firearms training certificate.

The Minister confirms that an 18 year old and a 14 year old can wander around farmlands with two loaded guns and that is the only restriction or supervision affecting them.

The 14 year old cannot possess a gun; he can only make use of it.

He can possess it but he cannot own it.

No he cannot own it.

He could carry it but not possess it.

He could carry it under supervision.

Yes. That is possession.

He could use it on a shooting range.

Only the 18 year old with him can own a gun. We are beginning to live in a fantasy world if we think that does not happen on farms in rural Ireland when people go rabbit shooting or whatever. It does happen.

Of course it happens, as do a lot of things.

Not to mention what Na Fianna get up to in the woods.

Yes. "If you go down in the woods today[.]"

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendmentNo. 77:

In page 36, line 26, after "while" to insert the following:

"at a rifle or pistol club or a pistol shooting range".

Amendment put and declared lost.

I move amendmentNo. 78:

In page 36, lines 27 and 28, to delete "hunting or".

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 79:

In page 36, line 30, to delete "over 18 years of age" and substitute ", aged not less than 21 years,".

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 80:

In page 36, line 36, after "range" to insert the following:

"or other place that stands authorised under section 2(5) of this Act".

Amendment agreed to.

I move amendmentNo. 81:

In page 36, between lines 41 and 42, to insert the following:

"(2) The commissioner on application and payment of the prescribed fee (if any), may issue to accredited members of an international sporting body recognised by the Irish Sports Council and who are non-residents and over 14 years of age a Firearms Training Certificate, and in the case of those over 18 years of age a Firearm certificate, authorising them to take part in duly authorised rifle or pistol competitions in the state.

(3) The Commissioner shall on application and payment of the prescribed fee authorise, upon satisfying him/herself that the regulations as laid out for rifle or pistol competitions in relation to safety, notice, attendance, age, accreditation and participation as published by the Minister for Justice, Equality and Law Reform following approval of both Houses of the Oireachtas, have been complied with grant a licence to the organisers of such an event.

(4) The licence provided undersubsection (3) shall be revoked by An Garda Síochána in the event that the regulations are not complied with.”.

Amendment put and declared lost.
Amendment No. 82 not moved.

I move amendmentNo. 83:

In page 36, line 45, after "guardian" to insert the following:

"and shall be lodged in person while accompanied with the said guardian at the nearest Garda station to the applicant's home address".

Amendment put and declared lost.

I move amendment No. 84:

In page 37, line 2, to delete "Minister" and substitute "Commissioner".

Amendment agreed to.
Amendments Nos. 85 to 87, inclusive, not moved.

Amendments Nos. 88 to 91, inclusive, are related and will be taken together by agreement.

I move amendment No. 88:

In page 37, line 30, after "security," to insert the following:

"and having consulted such organisations as in the Minister's opinion are representative of persons engaged in sporting or other lawful use of firearms,".

I am afraid to separate these amendments because I might lose something in the interim. This amendment relates to section 29 of the Bill which is a new section in the principal Act to allow the Minister make regulations. The first amendment is based on advice. I have received many requests from the shooting fraternity that the Minister listen to their legitimate concerns. There is an inherent resistance to consult anybody in respect of secondary legislation but that is all that is being requested. It is neither a veto nor a privileged position but only a consultation with these experts.

With all due respect to the Minister and his officials, it is best to deal with the technical world of competition, such as Olympic shooting and so on, by being open to consultation with those directly involved. It will not be an onerous burden. There is no obligation to have regard to the representations, merely to consult. That would address many of the fears of the organisations which feel that these sections focus on the criminal justice system but do not take account of the lawful and peaceful use of firearms by those engaged in sporting activities. There is a happy medium in these matters.

Amendment No. 89 proposes replacing the term "the muzzle energy" with "the muzzle energy of ammunition likely to be used by the firearm,". It is a technical observation. I am told that the ammunition has the muzzle energy, not the firearm. That would be a more correct way to put it.

Amendment No. 90 proposes a new subsection to the effect that "In making an order under subsection (1) the Minister shall have regard to the desirability of facilitating persons engaged in sporting or other lawful use of firearms." This is straightforward, and requests only that the Minister "have regard to", saying positively that it is desirable to facilitate. The requirement to do this can be reduced to two levels but the amendment states that it is desirable to facilitate persons engaged in sporting or other lawful use of firearms. That would not damage the Minister's intention in this legislation.

No doubt the Minister will be advised to hold on to all power, make no statutory requirement to consult anybody, and not weaken his power to legislate directly. All legislation comes from these Houses and I am conscious of the large volume of law made by secondary legislation, or statutory instrument. There is a growing practice of putting enabling legislation through these Houses so that a substantial amount of legislation which has a serious impact on people's rights and liberties goes through secondary legislation without proper scrutiny. In so far as possible, we should be open to facilitating the needs of law-abiding citizens and that is the intention of this group of amendments, especially amendment No. 90.

Amendment No. 91 proposes to provide for the right of appeal against an unjust ban. The Minister may point out that if people do not like secondary legislation, it is legislation and they can trot off to the court, but one cannot trot off to the court to strike down a law unless it is unconstitutional. The import of amendment No. 91 is to provide for an appeals mechanism in cases of bans which are imposed in an unjust fashion. The appeal will be made in the first instance to the Minister, who will have to listen to the case. If he is satisfied that no injustice took place he can simply make a determination to that effect. It is fair and reasonable that such an appeals mechanism should be put in place.

As I have said, there is a great deal of concern about this aspect of the Bill. Many of these issues have not been well-disseminated within the shooting fraternity. Will the Minister clarify section 29 which gives him the power to make regulations? I have been asked to ask the Minister specifically to confirm that it is not his intention to designate Olympic target shooting pistols as firearms which will be restricted or banned. I would like some clarification in that regard. I hope the Minister does not intend to restrict or prohibit the ownership of Olympic target shooting pistols which, by their nature, cannot be seen as offensive weapons.

I have also been asked to raise some of the anomalies in this legislation, but it is quite difficult to do so during a Report Stage debate. Section 30 of this Bill, which will amend section 3 of the Firearms Act 1925, outlines how a firearms certificate should be granted. These new provisions are good, by and large, although I have a query about section 30(2), which states that an "application for a restricted firearm certificate shall be made to the Commissioner." I wonder why such applications will not be made at local level, given that the general trend is for licences to be granted locally by local Garda officers who know the individuals concerned. I know it is a moot point. The Minister might say that although the applications are centralised, the recommendations on decisions will be localised.

I have spoken about the four amendments in my name. By and large, they seek to address and allay the concerns expressed to me by members of the shooting fraternity, who use firearms in a lawful and proper manner, obviously. They are concerned that they should not be restricted in enjoying their proper entitlement to use firearms for sporting purposes etc. I hope the specific concerns outlined in these four amendments will be addressed by the Minister.

The Deputy has proposed four amendments to section 29 which proposes the insertion of a new section 2B in the Firearms Act 1925. The new section 2B provides that the Minister, in the interests of public safety and security, can make an order deeming certain firearms "to be restricted" by reference to specific criteria. Amendments Nos. 88, 90 and 91, in the name of Deputy Howlin, are related. Amendment No. 88 proposes that when the Minister is deciding, in the interests of public safety and security, whether to make an order deeming firearms to be restricted, he should be statutorily required to consult the shooting organisations. In other words, he is suggesting that I should have to consult the gun lobby before I make an order.

I am not prepared to put such a requirement in statute form. I keep the door open to the gun lobby, generally speaking, when it wants to make representations to me. The Deputy proposes in amendment No. 90 that when I am making an order restricting certain types of guns, I should be statutorily required to "have regard to the desirability of facilitating persons" who are engaged in shooting. It is natural that any Minister would take account of such issues. Public safety comes first, however. I am not keen on having a judicial review.

The Minister will not be restricted in any way.

The amendment simply states that he "shall have regard to".

Amendment No. 91 proposes that a grievance mechanism should be put in place for people who are aggrieved by a ministerial order restricting certain firearms on safety and security grounds. This amendment would mean, in effect, that the High Court would have the capacity to reverse the order on the grounds of reasonableness or policy. I do not propose to hand over that function to the Judiciary, which has enough to do.

The Minister might be a member of the Judiciary in the future.

I might be. If I were sitting on the bench, I do not think I would aspire to get involved in this matter.

What about the first part of my proposal? There should at least be a mechanism whereby one can appeal to the Minister.

Every order made can be reviewed immediately. None of these orders is set in stone.

By whom can the orders be reviewed?

If it was made clear to me that I had simply got it wrong, or that I had been overly broad in restricting a category of weapons, I could bring an amending regulation into effect the very next day.

The Minister would have to accept that he got it wrong in the first place.

I would have to accept that.

That will not happen.

Members tend to face an uphill battle with me in that regard.

We have noticed.

My successors will probably be much more error-prone than I am. There is no problem with the corrective mechanism. If the Minister of the day is convinced that he or she has got something wrong, he or she can reverse that decision and put it right. I respect and have no problem with the shooting, firearms and hunting lobby, which consists of people who engage in competitive shooting and people who engage in hunting. As long as they keep their guns safely, use their guns for the purposes for which we expect them to use them and are careful in the use of their guns, I encourage them to——

Is the Minister's preference for such people to use their guns against burglars and intruders?

We live in a world in which the Minister must have the right to restrict certain firearms.

Deputy Howlin asked why applications will have to be made centrally to the Garda Commissioner. I have included that provision because I want consistent results across the country. I do not want it to be the case that AK-47s, for example, are on issue in County Tipperary, while another superintendent is taking a different view of the matter in County Louth. There must be a single policy on this issue throughout the country. These matters are of such importance that the policy underlying this section of the Bill is to centralise this issue in a single set of hands so that a consistent policy is applied.

Deputies referred to muzzle velocity. I am sure Deputy Howlin appreciates that the velocity of any projectile leaving a weapon depends on the strength of the cartridge.

I assure the Minister that it is highly unlikely that I appreciate that at all.

It depends on the strength of the cartridge. Some people put more powder into their cartridges to adjust the velocity at which projectiles leave their guns. Even though the strength of the ammunition is, in general terms, one of the factors to be taken into account when determining whether a weapon has a certain muzzle velocity, it is possible to describe a weapon like an automatic rifle as a high-velocity weapon not simply by reference to the ammunition that is used in it but because of its general characteristics. Although I appreciate the point made by lobbyists to Deputy Howlin that in theory it all depends on the strength of the explosive used in the ammunition, that is not the full picture. The nature of the weapon is also a contributory factor. A short barrel of a certain kind will always be a low velocity weapon.

FCA training was not lost on the Minister.

It was not. The difference between a high velocity and low velocity weapon is, in conventional terms, not just defined by reference to the strength of the ammunition used. It is also by reference to other characteristics of the weapon. A Kalashnikov rifle would be described as a high velocity weapon, no matter what bullets were used in it.

I am disappointed with the Minister's response. He has said he has no difficulty with my proposals but he does not want to put them into law. Apart from the technical amendment, I do not see why it cannot be in the law if it gives an assurance to people. A requirement to a consultation process is not a great burden.

I know Departments do not like legal requirements to consult with other parties. If they had their way, they would not even consult the Oireachtas. Bills would simply be sent to the House for rubber-stamping. The Department of Justice, Equality and Law Reform is particularly prone to that foible. I will not put on record my direct experience of an official's comment on the Opposition and its right to deal with legislation. It was, however, an interesting lesson on the attitude of the Executive and the permanent Civil Service to the Oireachtas. It is incumbent on the Oireachtas where possible to pull back to the broad parameters of its constitutional right to legislate. This is a right the Executive often believes is its rather than that of the Oireachtas.

Amendment No. 88 proposes no more than a consultation process. The consultations, after hearing the case, can be entirely ignored. It does no injury to anyone and would be a positive statement from the Minister. On amendment No. 89, I know little of muzzle energy. I am simply presenting a case made to me and I accept the Minister's rebuttal, if that is what he has been advised.

The problem with the Labour Party is that it has not had an armed wing for a long time.

That is exactly it.

Notwithstanding the arrival of Democratic Left.

One must not forget the Labour Party is the oldest political party in the State.

However, it was founded by a revolutionary, James Connolly, who had an armed tradition. The Progressive Democrats Party has no armed tradition of which we know. It tends to keep its pugilism internalised.

Temptation.

Until it spills over.

Occasionally, it spills out.

On amendment No. 90, it will not damage the Minister to acknowledge in the law that he should have regard to the desirability of facilitating persons engaged in sporting or other lawful use of firearms. He has agreed with this publicly and, for once, he should kick the traces of his advisers.

I accept the Minister's point on amendment No. 91 that he does not want himself or his successors to be second-guessed by the High Court. Will he, however, accept the first tranche of the amendment which would formally allow people who feel aggrieved to appeal directly to the Minister? The proposed subsection (2) simply refers to a rejection or acceptance of the case made. Subsection (3), which I will not press, simply allows people to write to the Minister to state a case.

A democratic right exists to communicate with any officer of the State.

One can just state that.

An individual can write to an officer of the State, claiming an unreasonable order has been made. Most Ministers would consider such letters——

Most Ministers would never see them.

——unless it was manifestly unreasonable. If one feels one's post to a Minister is being diverted, there are other ways to contact directly him or her. Ministers are extremely accessible and I do not know of any Minister who is beyond communication.

I have only experience of the Department of Justice, Equality and Law Reform on a personal level since I became Minister. During my tenure, no other Department has been more open and consultative in its legislative approach. No other Department has published heads of Bills, taken amendments, had lengthy debates and put out draft legislation for consultation. No other Department has sent its papers to the Irish Human Rights Commission.

That is because it is required to do so by law.

The Irish Human Rights Commission has publicly acknowledged this. The Law Reform Commission was mentioned in this morning's debate. At the recent launch of the Land and Conveyancing Law Reform Bill, the president of the commission was asked by a member of the press whether she felt frustrated that the commission's reports were not acted upon. She said the Law Reform Commission had a higher success rate in getting its proposals into law than many of its counterparts in other jurisdictions.

That is not saying much.

She also said in recent years the situation had substantially improved.

I am no wiser as to why the first part of amendment No. 91 cannot be accepted. I cannot imagine it could be a difficulty for the Minister. If he claims it is already a democratic right, why will he not formulise it? I am taken aback he will not accept the right of appropriate bodies to advance consultations on regulations that could impact upon them.

This reminds me of when F.E. Smith, later the first Earl of Birkenhead, made a lengthy legal submission to a judge. Half an hour into it, the judge said to Smith that he was still none the wiser for it. Smith replied, "Perhaps not the wiser, My Lord, but certainly much better educated".

I wonder which one of us is the better educated.

Amendment put.
The Dáil divided: Tá, 58; Níl, 67.

  • Allen, Bernard.
  • Boyle, Dan.
  • Breen, James.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Connolly, Paudge.
  • Costello, Joe.
  • Cowley, Jerry.
  • Crawford, Seymour.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Ferris, Martin.
  • Gilmore, Eamon.
  • Gogarty, Paul.
  • Gormley, John.
  • Hayes, Tom.
  • Healy, Seamus.
  • Higgins, Joe.
  • Higgins, Michael D.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Kenny, Enda.
  • Lowry, Michael.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McGrath, Finian.
  • McGrath, Paul.
  • McHugh, Paddy.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Murphy, Catherine.
  • Naughten, Denis.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Dowd, Fergus.
  • O’Keeffe, Jim.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Penrose, Willie.
  • Perry, John.
  • Quinn, Ruairí.
  • Ryan, Eamon.
  • Ryan, Seán.
  • Sargent, Trevor.
  • Sherlock, Joe.
  • Stagg, Emmet.
  • Stanton, David.
  • Twomey, Liam.
  • Upton, Mary.
  • Wall, Jack.

Níl

  • Ahern, Noel.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Callanan, Joe.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Cooper-Flynn, Beverley.
  • Cullen, Martin.
  • Curran, John.
  • de Valera, Síle.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Dennehy, John.
  • Devins, Jimmy.
  • Ellis, John.
  • Finneran, Michael.
  • Fleming, Seán.
  • Fox, Mildred.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Grealish, Noel.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McDowell, Michael.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Flynn, Noel.
  • O’Keeffe, Ned.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Parlon, Tom.
  • Power, Peter.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Brendan.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
  • Woods, Michael.
Tellers: Tá, Deputies Stagg and Kehoe; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.

I move amendment No. 89:

In page 37, to delete line 38 and substitute the following:

"(iv) the muzzle energy of ammunition likely to be used by the firearm,".

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 90:

In page 38, between lines 7 and 8, to insert the following:

"(2) In making an order under subsection (1) the Minister shall have regard to the desirability of facilitating persons engaged in sporting or other lawful use of firearms.".

Amendment put and declared lost.

I move amendment No. 91:

In page 38, between lines 7 and 8, to insert the following:

"(2) A person aggrieved by an order of the Minister under subsection (1) may give notice in a form to be prescribed by the Minister of his or her grievance and of the grounds for it, and the Minister shall consider such notice and shall make a decision on foot of the notice either to make no amendment to the order under subsection (1) or to may make such amendment to the order under subsection (1) as, in the opinion of the Minister, the circumstances warrant.

(3) A person dissatisfied by a decision of the Minister under subsection (2) may appeal against such decision to the High Court which may give such directions to the Minister as the circumstances warrant.".

Amendment put and declared lost.

Amendments Nos. 92 and 93 are related and may be discussed together.

I move amendment No. 92:

In page 39, line 4, after "person" to insert the following:

", where the permission of that person has been obtained".

This amendment seeks to improve subsection (6) of section 30. There may be some confusion in that the reference to "land occupied by another person" does not make it explicit that the certificate holder must obtain the permission of that person. However, it may be that this issue is covered under subsection (11), in which case I will not press the matter. If not, it would improve the Bill to include this amendment.

Deputy O'Keeffe's amendment No. 92 proposes the insertion of the words "where the permission of that person has been obtained" in subsection (6)(b) in regard to applications for a limited certificate for a shotgun. I refer the Deputy to subsection (11) of the new section 30 which provides at paragraph (a) that a limited certificate relating to land occupied by a person other than the applicant “shall not be granted unless the occupier of the land has given the applicant a nomination in writing for holding the certificate”. Deputy O’Keeffe’s amendment refers to permission being obtained while this subsection speaks of a nomination in writing. We are essentially ad idem on this point.

My amendment No. 93 proposes to replace the words "one month" in subsection (8) of section 30 with "three months". I have tabled this amendment at the behest of the shooting fraternity whose members point to an anomaly in this regard. I am interested in the Minister's view on this. A certificate holder cannot currently apply for renewal of his or her firearm certificate until one month before its expiry. However, the Garda then has three months to make a decision on that application. This means one could be stranded for two months without a licence. My amendment is designed to synchronise the timing in this regard to eliminate this unacceptable time lag.

I am informed that while there are delays in regard to the issuing of new firearm certificates — sometimes of as much as three months — renewal is an almost automatic process, similar to getting one's car taxed. Lengthy delays are not a problem in terms of renewals. Applications for renewal should be submitted at a date proximate to the date on which the new licence commences. We do not want a situation where a certificate holder's circumstances may have changed significantly before the new licence is issued.

The reality is that there should be synchronisation in this process. If the Minister says licence holders should only have a month to apply so that applications will be proximate to the expiry date, it should also be the case that the Garda has a month to make a decision on those applications. Whatever may be the general case in practice, the law provides that gardaí have three months to make a decision but certificate holders have only month to apply. There could legally be a two-month gap where one is left high and dry without a licence.

I am advised that the three-month period for making a decision applies in regard to new certificates. The renewals process, however, is almost an automatic process.

What is the legal framework?

I do not believe the three-month period applies to renewals.

It does.

Deputy Howlin is correct; it applies to all applications. However, the Deputy's argument is akin to demanding that Dublin City Council must renew one's car tax within three months of application. It all happens by an automatic process, more or less by return of post. The particular notional difficulty to which the Deputy refers — that a renewal could take three months — does not happen in practice.

The Minister cannot say that for certain.

On amendment No. 93, it seems the Minister may be confusing the practicalities with the formal position in law.

Exactly.

The formal position in law, as outlined by Deputy Howlin, confirms that there is a dysfunctionality or disconnection between the application and granting processes. The west Cork approach to something like this would be to suggest we split the difference and allow two months for both renewal application and Garda decision.

This argument is academic but I will accept the amendment to prevent Deputy Howlin from calling another division.

I thank the Minister.

Given that Deputy Howlin is happy, I will not press amendment No. 92.

My happiness is temporary.

I am causing division among the parties to the Mullingar accord.

I share in Deputy Howlin's happiness. On the basis of our accord, I am prepared to accept the Minister's assurances in regard to amendment No. 92 that the situation is fully covered in subsection (11).

The phraseology of subsection (11)(a) is a little odd, in that it states that “a limited certificate related to land occupied by a person other than the applicant for the certificate shall not be granted unless the occupier of the land has given the applicant a nomination in writing for holding the certificate”. I was speaking in the context of permission but perhaps the Minister is satisfied that a nomination equals permission. It is not a point I will press, however.

The subsection uses language which is already used in other portions of the Bill but I agree it is rather quaint.

Amendment, by leave, withdrawn.

I move amendment No. 93:

In page 39, lines 11 and 12, to delete "one month" and substitute "3 months".

I accept the amendment.

Amendment agreed to.

Amendments Nos. 94 to 96, inclusive, are related and will be discussed together.

I move amendment No. 94:

In page 40, line 28, after "Minister," to insert the following:

"and having consulted such organisations as in the Commissioner's opinion are representative of persons engaged in sporting or other lawful use of firearms,".

This amendment deals with the same ground we have covered, but in this instance it is an insertion into a different section of the Bill, namely page 40, line 28. It is not an unreasonable requirement that there would be consultation and I hope since the earlier division the Minister has reflected on that and will now consider it desirable.

The same issue is addressed in amendment No. 95, which creates a new subsection (3).

With regard to amendment No. 96, the point was made to me by the shooting fraternity that guidelines should not be secret. In that context, the amendment states that "Guidelines under this section shall be made available by the Commissioner to those likely to be affected thereby". I presume that is probably intended anyway but I do not see any harm in stating it explicitly as a requirement.

The points made by Deputy Howlin are perfectly valid. Part of the difficulty in discussing guidelines and the shooting fraternity is that we are dealing with a totally different category of people to the shooting fraternity that we are trying to lock up because of their involvement in crimes with firearms. That is one of the difficulties and I argued strongly during earlier debates on this Bill that we should be dealing with the sporting shooting fraternity in a separate category.

Be that as it may, the Minister has insisted on going ahead with this approach so we are dealing with the genuine, law-abiding people who are involved in shooting for sport or for the control of vermin. In that context, the approach of the Legislature should be to ensure that the fullest consultation takes place in a transparent and open manner, in so far as the Garda Commissioner and the Minister are concerned. Provision should be made for consultation with representative organisations. The sporting organisations should be facilitated as far as possible and guidelines should not be hidden. If there are guidelines under which the system operates, they should be made fully available to such organisations. We should not have a Kafkaesque approach whereby organisations find themselves in a situation of being expected to comply with guidelines of which they are not aware.

The Commissioner has agreed to consult the shooting lobby, if I may use that phrase, and does so on a regular basis. It is not as if the——

Perhaps "legitimate shooting lobby" is more appropriate.

It is not as if the Commissioner is hostile to that lobby.

The guidelines are being provided for because effectively the High Court held that each local Superintendent was a corporation sole as regards making his or her mind up as to what policies would apply. Missives from the Phoenix Park and the Commissioner were deemed to be ultra vires and an improper circumscription of the discretion given by the law to local Superintendents.

While some guidelines may be the proper subject of public scrutiny, others may not. Let us suppose, for example, that the Commissioner were, on security grounds, to say that applications from people who live very close to persons who have serious crime propensities should be examined with great caution. He or she may not want to put such information into the public domain for the guidance of those people who are the object of the direction itself. There are some kinds of guidelines that the Commissioner may wish to issue, on security grounds, for particular reasons but it may not be appropriate that——

Is the Minister saying that a law-abiding citizen could be penalised because he or she lives near a criminal?

That is extraordinary.

I am saying to the Deputy, yes, very definitely——

The law-abiding citizen could be penalised and that fact could be kept a secret.

That is exactly the type of guideline that the ordinary citizen should be made aware of.

The Deputies are ignoring the fact that the Commissioner may want to issue security-related guidelines but he or she should not have to put them into the public domain just for the curiosity of the Deputies who wish to see how the matter is being dealt with. The Commissioner may want, at a particular time because of a particular perceived threat, to issue a particular guideline and it is not reasonable in those circumstances to say——

That is extraordinary.

It is not extraordinary. It is perfectly reasonable. It will achieve a uniform policy across the country and allow the Commissioner to have an input into the decision making by Superintendents. I do not think that every aspect should be secret. I appreciate that if the Commissioner said something very general like, "be careful about younger applicants", that would not have any security implications. However, there could well be security-driven guidelines which the Commissioner would not want to put into the public domain.

I agree with the EU Commissioner, Mr. McCreevy, that sometimes transparency is taken too far in this country.

The Minister is changing his tune a little.

I think the Minister has finally lost it, judging by his last comment. I recall bringing the Electoral Bill through this House, as Minister, in 1997 and the attitude of the then Opposition spokesperson and current Minister for Justice, Equality and Law Reform, Deputy McDowell to that legislation. That is linked to the attitude of the Government, of which he is a member, to the Freedom of Information Act, in the way it has been wound back.

The lawful shooting fraternity sees this section as the Minister overturning the courts, presumably the Dunnev. Donohoe case, in a way that gives him the right, in legislation, to do as he pleases, without oversight or any need to consult those affected. The section will have an enormous impact on the recreational and personal rights of people who have always worked very hard to obey the law and live within it, the compliant taxpayers and good citizens, but will have no impact on those who break the law and abuse firearms for criminal ends who will be untouched by this provision. The legitimate shooting fraternity feels a great sense of grievance at the Minister’s approach and I thought, to ameliorate this, that ensuring the guidelines are published would not be a demanding burden. The Minister thinks it is a bridge too far, since he cannot imagine letting people know what the guidelines being created effect. The Minister’s case struck Deputy Jim O’Keeffe and me as most bizarre. He says that if the Commissioner wished to issue guidelines to restrict or deny a firearms certificate——

I mentioned paying special attention. I did not say anything about denying a certificate.

If the guidelines said that——

I did not.

I thought the Minister did, but let me take it a stage further. Whatever he said and whatever guidelines the Commissioner formulates, they will have some impact on a law-abiding citizen who has done nothing wrong, simply because he lives in the same parish as or near a wrongdoer. Not only is he to be deprived of rights and negatively affected, he is not to know why. If he is denied a firearms certificate because of guidelines of which he is not to know, what is he supposed to believe?

It is very difficult. I had a case in my constituency where an individual was denied a firearms certificate, and no reason was given. If one is a ne'er-do-well, one should be told so and that one is not trusted. However, the notion that any citizen can be deprived of a right and not have that made public is unjust. There must be some mechanism of appeal if one believes oneself to have been wrongly deprived of a right. One can only know that if a reason is given. The notion of transparency must be embedded in every Department, including the Department of Justice, Equality and Law Reform. They must be transparent in explaining such things. I am very disappointed at the Minister's attitude to these matters.

It has been agreed with the shooting organisations that the general guidelines will be discussed with them and published. I do not accept the proposition that a confidential guideline cannot be issued on occasion, although that may surprise people.

Deputy Howlin referred to my attitude to the Freedom of Information Act 1997, but I remind him that before the introduction of amending legislation by this Government, it was the practice for Opposition spokesmen on finance to be able to go to the Department of Finance and have it cost their policies in confidence. The Information Commissioner of the day decided that the process should be subject to freedom of information accessibility. I always feel that the Opposition never zeroed in on that point in this House. It was a retrograde decision that flew in the face of common sense and had to be subject to statutory amendment.

Very good.

My other point is that the deliberative process before the amendment was being seriously diminished by the requirement that all related documents be available to the public. The Freedom of Information Act 1997 was changed in that respect, since which time the situation has improved. One now hears genuine opinions and both sides of the story.

Only today the Department of Justice, Equality and Law Reform refused a freedom of information request I had submitted.

That was the decision of an officer of the Department and had nothing to do with me.

I do not suggest it did. I am saying the issue of working behind——

My point is that I do not accept every guideline must be published. However, I believe general ones will be published and that the shooting organisations know that.

They do not require to be published, however.

My sense of justice has been outraged, in particular by the example the Minister quoted in support of his contention that there should be no consultation or publication of guidelines. It is extraordinary that a citizen of this State should be denied a firearm on the basis of secret guidance of which he is unaware and about which the organisation of which he is a member is not consulted.

I said nothing of the sort. I said it might be possible, for instance, for the Commissioner to have brought to the attention of local superintendents the need to pay special attention to persons who lived in close proximity.

To what end?

So that special attention might be paid to avoid heightened risk. That is all.

I will read the blacks.

I hope that the Deputy does so. The term "special attention" does not mean that a person may have no gun. It simply means one must be careful.

Does that mean it will decrease the prospect of that law-abiding citizen being issued with a licence?

There is no general right to bear arms in this country. We do not live in the United States.

There is a general right to fair play.

This is Report Stage rather than Committee Stage.

There is a general right to public security.

Perhaps I might continue with the contribution I was making before the Minister interrupted me several times. The Minister is on the defensive on this issue.

He is wrong.

I am not wrong. The Deputy is winging it.

He doth protest too much, methinks. He has clearly set out a scenario where he would be quite prepared to support a citizen who genuinely requires, and under normal circumstances would be entitled to, a firearm being denied one.

I did not say that. I said that special attention would have to be paid.

What is the purpose of paying special attention?

It is because of the heightened risk in certain circumstances.

What does that mean? Why should the result of the special attention not be to grant the applicant the firearms licence in case he needs it to ward off an attack by the criminal living nearby? The clear implication of the Minister's example——

We heard the Deputy's advocacy of lethal violence last night.

The Deputy should not be drawn.

That was one of the Minister's many interruptions, and perhaps I had better let it pass.

I honestly believe that it says something about the Minister that he should be prepared to support such a situation. Although superficially not an important issue, for the individual affected it could be very important. That individual would not even be able to find out why he or she was denied a licence. It is not acceptable, and I would like any Commissioner reading this exchange to be clear that this approach — if not advocated by the Minister, at least mentioned by him — does not enjoy the support of the House.

Hear, hear.

Apropos of last night's debate, a wit said to me that, as far as he could see, the difference between the two Private Members' Bills was that the Progressive Democrats were willing to have people shot in the head, whereas Fine Gael Members were concentrating on shooting themselves in the foot.

That is a sick joke. We are gasping for air.

That was a "wit". The Minister will have to go further to find someone with a sense of humour.

The Member should be careful of his pronunciation.

Amendment put and declared lost.

I move amendment No. 95:

In page 40, between lines 36 and 37, to insert the following:

"(3) In making an order under subsection (1) the Minister shall have regard to the desirability of facilitating persons engaged in sporting or other lawful use of firearms.".

Amendment put and declared lost.

I move amendment No. 96:

In page 40, between lines 36 and 37, to insert the following:

"(3) Guidelines under this section shall be made available by the Commissioner to those likely to be affected thereby.".

Amendment put.
The Dáil divided: Tá, 60; Níl, 67.

  • Allen, Bernard.
  • Boyle, Dan.
  • Breen, James.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Connolly, Paudge.
  • Costello, Joe.
  • Cowley, Jerry.
  • Crawford, Seymour.
  • Cuffe, Ciarán.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Ferris, Martin.
  • Gilmore, Eamon.
  • Gogarty, Paul.
  • Gormley, John.
  • Hayes, Tom.
  • Healy, Seamus.
  • Higgins, Joe.
  • Higgins, Michael D.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Kenny, Enda.
  • Lowry, Michael.
  • Lynch, Kathleen.
  • McCormack, Padraic.
  • McEntee, Shane.
  • McGrath, Finian.
  • McGrath, Paul.
  • McHugh, Paddy.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Murphy, Catherine.
  • Murphy, Gerard.
  • Naughten, Denis.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Keeffe, Jim.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Penrose, Willie.
  • Perry, John.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Ryan, Eamon.
  • Ryan, Seán.
  • Sargent, Trevor.
  • Sherlock, Joe.
  • Stagg, Emmet.
  • Stanton, David.
  • Twomey, Liam.
  • Upton, Mary.
  • Wall, Jack.

Níl

  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Callanan, Joe.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Cooper-Flynn, Beverley.
  • Cullen, Martin.
  • Curran, John.
  • de Valera, Síle.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Dennehy, John.
  • Devins, Jimmy.
  • Ellis, John.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Grealish, Noel.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Conor.
  • McDowell, Michael.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Flynn, Noel.
  • O’Keeffe, Ned.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Parlon, Tom.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Brendan.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
  • Woods, Michael.
Tellers: Tá, Deputies Stagg and Kehoe; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.

I move amendment No. 97:

In page 41, line 14, after "is" to insert "a rifle or pistol".

Amendments Nos. 97 to 103 to section 32 insert a new section 4 in the Firearms Act 1925. The new section specifies the conditions for the granting of a firearms certificate. There are seven amendments proposed to this section. Amendments Nos. 97 and 102 are in my name. The former is a drafting amendment that makes it clear that where the application for a firearm is for either a rifle or a pistol, the applicant is required to be the member of an authorised rifle or pistol club. Amendment No. 102 is also a drafting amendment to amend the definition of "health professional" to include a doctor or psychologist.

Deputy Howlin is proposing three amendments. Amendment No. 98 would require that every person wishing to engage in clay pigeon shooting would be a member of a clay pigeon club before being granted a firearms certificate. The difficulty is that clay pigeon shooting is done with a shotgun. Consequently, if the amendment as framed were to be accepted, it would be necessary in all cases when deciding whether to grant a licence for a shotgun to require each applicant to be a member of a clay pigeon club. I know such is not the Deputy's intention. My amendment on the requirement to be a member of an authorised club applies strictly to pistols and rifles and probably renders the clarity the Deputy is trying to achieve. It is not necessary to require that shotgun owners be members of clubs.

The Deputy's amendment No. 100 proposes to amend the requirement that a person should provide proof of competence by adding the phrase "or a bone fide intention to acquire competence" and his amendment No. 101 proposes that the competency requirement should not be restricted to the firearm in respect of which the applicant is seeking a certificate.

I am providing at section 28 of the Bill that any person over the age of 14 years can be given a firearms training certificate for the purpose of being trained in the use of firearms. If a person has no competence in the use of firearms, he or she should apply for a firearms training certificate and be trained in the safe use of firearms before seeking a firearms certificate. In this way, he or she can acquire the necessary expertise to enable him or her to meet the competency requirements for a firearms certificate in respect of the specific firearm for which he or she wishes to obtain a certificate. As such, I am not disposed to accept the Deputy's amendments.

In amendment No. 99, Deputy Jim O'Keeffe proposes the insertion of two new conditions with which a Garda Commissioner or superintendent must be satisfied before deciding to grant a firearms certificate, namely, that the applicant is of sound mental and psychiatric health and has sufficient capacity to possess and operate a firearm responsibly and safely. The effect of the amendment as drafted would be to require the Minister or the superintendent to make a judgment as to the mental and psychiatric capacity of an applicant. Strictly speaking, neither person is qualified to make such an assessment, but in my proposed new section at subsection (3), the applicant, on the request of the Commissioner or superintendent, must provide written consent for any inquiry into his or her medical history, which may be made by a doctor or a psychiatrist. On the basis of this expert assessment, a commissioner or superintendent may decide whether to grant a firearms certificate. This is obviously a sensitive matter. If someone is a bit dodgy in terms of mental stability——

He or she should not be the Minister for Justice, Equality and Law Reform.

Indeed, and for that reason, there must be a careful assessment of Deputies Howlin and Jim O'Keeffe.

In the Bill's original drafting, the Minister wanted the assessment to be carried out by a dentist.

The Minister is already admitting defeat. His remarks were addressed to Deputies other than those on this side of the House.

If someone is mentally dodgy and the superintendent must decide whether to make further inquiries as envisaged by my amendment, the superintendent may ask for the person's medical history. Deputy Jim O'Keeffe's amendment asks that I positively require the superintendent in every case to start engaging in psychiatric evaluations of the people being dealt with. That would have two effects. First, it casts on the superintendent an onerous test because people can appear to be psychiatrically normal but be harbouring psychiatric symptoms.

Second, it puts the cart before the horse. In any case where there is doubt, the superintendent will have sufficient capacity to get someone in a position to form a judgment on the matter — an expert — to provide a medical history. If the superintendent is not disposed to granting a person a licence or is in doubt and wants a medical report, it is better for the superintendent not to say that someone is deranged or to use lay terms of that type. In principle I do not have a huge problem with Deputy Jim O'Keeffe's amendment because he is merely saying people should be wary of the issue, but that is implicit in the arrangement. I do not think any superintendent would willingly give a certificate to somebody who was, in his or her view, at serious risk of mental instability.

Deputy Ó Snodaigh's amendment No. 103 proposes that the conditions applying to the grant of a firearms certificate apply equally to the grant of a firearms training certificate. That is already the case because of the definition of a firearms certificate: "a firearm certificate granted under this Act and, unless the context otherwise requires, includes a restricted firearm certificate, a firearms training certificate and a firearm certificate granted under the Firearms (Firearm Certificates for Non-Residents) Act 2000". I appreciate Deputy Ó Snodaigh's point but the matter is covered by the amendment.

I thank the Minister for addressing the amendments. It is very helpful to hear his thought processes before I speak. The first amendment in my name is amendment No. 98 which proposes that the words "or a clay-pigeon shooting club" be inserted after "club". The Minister said it was not necessary because clay pigeons were shot only by shotguns. My advice is that is not the case. I am advised that clay pigeon shooting is a form of target shooting. There is a specialised weapon, it is an Olympic event and Ireland's Olympic clay pigeon shooting team holds, among many sporting awards, the world championship title of 2002. It holds several world cup bronze and gold medals, both individual and team, and an eighth place finish at the Olympics in Athens. I am also informed that the Irish Sports Council has this year awarded €150,000 to the Irish Clay Pigeon Shooting Association to further its efforts in the specialised sport of target shooting. In those circumstances they should be allowed to practise their craft.

I am pleased the Minister has decided that mental competence, as he delicately put it, should be decided by a doctor or psychiatrist, as opposed to a dentist or even a nurse. The section rewrites section 4 of the principal Act in its entirety but a couple of issues have been brought to my attention. Section 4(1) states that an issuing person shall not grant a firearms certificate unless he or she is satisfied that the applicant complies with the conditions referred to in subsection (2) and will continue to comply during the currency of the certificate. A person can prove he or she is sane but can they prove they will be sane for three years? That is an issue.

The Minister talked about competence in the context of my amendment No. 100 to insert "or a bona fide intention to acquire competence". How is competence determined? There is no hint in the Bill as it stands how anyone is to prove competence in the use of a firearm. How can it be guaranteed into the future? Competence, like mental capacity, must obtain for the duration of the licence.

The Minister is aware of my concern that licences should only be issued to those who are of sound mental health and of sufficient capacity to possess and operate a firearm responsibly and safely, and we aread idem on that objective. I was concerned by the case in Kilkenny which raised doubts whether the person in question should continue to hold a firearms certificate and I searched for a way to minimise the possibility of a repetition of that kind of horror story. The Minister has approached the issue from a somewhat different direction, although I have no problem with the amendment he has tabled. On reading the Bill I wondered how the original definition of health professional crept into the Bill, allowing a certificate to be obtained from a dentist, an optician or a chemist.

The reference to an optician makes sense because one would not want Mr. Magoo holding a certificate.

Or a person who was as mad as a hatter but had great teeth.

An optician might have a role in ensuring straight shooting, but the role a dentist might play is beyond me. Section 32(3) provides that the issuing person, for example, a superintendent, can require the applicant to supply information requested in the application form and such further information as he or she may require, including written consent for any inquiries as to the applicant's medical history that may be made from a health professional by or on behalf of the issuing person.

Two issues arise. First, what does it mean? Does it refer to the applicant's medical doctor or psychiatrist? I assume by "a health professional by or on behalf of the issuing person" the Minister has in mind the applicant's doctor or psychiatrist. Can he clarify that the outcome will be exactly as it is framed?

The Minister was concerned about the question of an assessment. If section 32(3) requires the applicant's doctor or psychiatrist to produce a report, although it is not clear, the superintendent must assess the report anyway. Will the superintendent put the question directly to the doctor or psychiatrist whether he or she believes the person to be of sound mind, memory and understanding and of sufficient capacity to be issued with a firearm? I am not clear as to the scheme the Minister has in mind to cover the situation. I am not entirely sure the way it is phrased will achieve the outcome at which I think the Minister is aiming, if he will forgive the pun.

I agree the Bill's original definition of health professional was wide of the mark. It was obviously taken from somewhere else. It requires written consent for any inquiries on the applicant's medical history that may be made from a health professional by or on behalf of the issuing person. If somebody were on medical treatment, the issuing person would ask who was his or her doctor. If a person does not have a doctor but still looks deranged, the section does not exclude the possibility of nominating somebody to examine that person. The amendment has narrowed the focus of the section to allow inquiries to be made by or on behalf of the issuing person to a health professional.

Does this mean the words "by or on behalf of the issuing person" should be after the word "enquiries"?

In that situation, it is open as to whether it would be the applicant's doctor or somebody brought in from outside to——

If somebody strikes one as dodgy and one asks him or her if he or she has a GP whom he or she visits regularly, to which the person replies "no", and if one asks if he or she has ever had psychiatric or psychological treatment, to which the person replies "no", at that stage the issuing person may be faced with the proposition that he or she wants the person to consent to inquiries being made by somebody nominated by him or her in regard to this issue. It is a difficult issue.

If the Minister is satisfied with the section in its present shape and that it ensures those of unsound mind or with psychiatric health issues will not get a licence, I am happy but I have queries about the phraseology of the section.

Perhaps it could be phrased more elegantly but it is sufficient to capture the two situations I mentioned. The first is where somebody is under medical care and the persons providing that care can be consulted, and the second is where somebody is not under medical care, or claims not to be, and a medical assessment can be carried out by a person nominated by the issuing person.

The Minister did not comment on clay pigeons.

I am genuinely at a loss because it is my understanding — the Deputy said I am wrong — that clay pigeon shooting is done by a shotgun type——

A field day, or something like that, is the norm.

Clay pigeons are not shot at with ball ammunition. I have never heard of a clay pigeon being shot at with a round of ammunition of the conventional type. The obvious problem would be ricochets in that they could go anywhere.

It explodes when one hits it. It disintegrates as it is clay.

Not necessarily. If there is a round, as opposed to a shotgun discharge, the round, if it hits an object at an oblique angle, could go in any direction and hit anybody if one was firing up in the air.

One could have a shotgun round as well.

I am making the point that shotguns are of a particular kind. I have never heard of clay pigeon shooting with conventional——

One can get rounds for shotguns which have a single pellet in them.

So be it, but I have never heard of clay pigeon shooting with anything like a .22 rifle or——

Nobody is suggesting that. There are specialist weapons for use in what is described as an Olympic sport, namely, Olympic clay pigeon shooting.

It is my understanding — I may be wrong — that they do not use one projectile. If Deputy Ó Snodaigh is correct, one could fire that from a shotgun anyway.

I would take Deputy Ó Snodaigh's advice on these matters.

There are other provisions in the Bill in regard to making rounds at home and so on.

I am told Deputy Ó Snodaigh will be disappointed to hear there is a question over the legality of using a single projectile as a shotgun.

Amendment agreed to.

I move amendment No. 98:

In page 41, line 16, after "club" to insert "or a clay-pigeon shooting club".

I would like an assurance from the Minister that the request made to me by those who know, and who are the professionals, that the Olympic sport of clay pigeon shooting will not be adversely affected by these provisions.

I do not believe it will be adversely affected by the provision.

If that proves to be wrong, will the Minister address it in the Seanad?

I will eat humble pie in the Seanad.

Very good. I thank the Minister.

Amendment, by leave, withdrawn.
Amendments Nos. 99 and 100 not moved.

I move amendment No. 101:

In page 41, line 41, after "concerned" to insert the following:

"or in such other similar firearms as satisfy the issuing person that the applicant will be competent in the use of the firearm concerned".

Amendment put and declared lost.

I move amendment No. 102:

In page 42, lines 11 and 12, to delete "a person who is a doctor, psychiatrist, dentist, optician, chemist or nurse and" and substitute "doctor or psychiatrist".

Amendment agreed to.
Amendment No. 103 not moved.

Amendment No. 105 is related to amendment No. 104 and both may be discussed together.

I move amendment No. 104:

In page 44, between lines 17 and 18, to insert the following:

"(15) Regulations under subsection (13) insofar as they determine standards by reference to subsection (14)(vi) shall have due regard to the need for shooting ranges to be used by persons who are in the process of acquiring competency in the use of firearms.".

The import of my amendment was again suggested by those who know in that they perceive a catch-22 that the Minister can regulate ranges by reference to competency but that they are to be used by persons without competency. My amendment suggests that "Regulations under subsection (13) insofar as they determine standards by reference to subsection (14)(vi) shall have due regard to the need for shooting ranges to be used by persons who are in the process of acquiring competency in the use of firearms", so there is not a catch-22 in that one must be competent to use a range even though one must get that competency by using a range. I do not know the import of the Minister's amendment in this regard.

I am satisfied that the section as drafted effectively provides what Deputy Howlin seeks. Subsection (13) as it stands provides for the Minister to make regulations specifying minimum standards which minimum standards under subsection (14) shall be determined by reference to a number of factors. One of those factors is the level of competence of persons using the range.

That is the point. How does one get competence? To use the range one must have a certain level of competence but to get competence, one must use the range. That is the catch-22.

The design of the range must be decided by reference to the level of competence of persons using it. If people have a very low competence level, it must be designed in a way which is safe for them to use. The Minister can take into account the level of competence of persons using a range as one of the criteria for deciding whether to authorise the use of that range. This is a somewhat circular argument. I do not believe there is much of an issue.

If what the Minister said is what is captured in the Bill, I am happy. As I read it, one has to be competent to shoot in a range but to get competence, one has to shoot in a range.

The minimum standard shall be determined in the case of a shooting range by reference to any or all of the following matters: security, membership, management, design, construction, maintenance, types of firearms and ammunition to be used and the level of competence of persons using the range. The minimum standards are to be determined by reference to a number of matters, including the level of competence of persons using it.

I accept the Minister's assurance.

Amendment, by leave, withdrawn.

I move amendment No. 105:

In page 45, lines 13 and 14, to delete "this section" and substitute "subsection (18) of this section".

This is a drafting amendment.

Amendment agreed to.

Amendment No. 107 is related to amendment No. 106 and both may be discussed together.

I move amendment No. 106:

In page 46, line 12, after "it" to insert the following:

", accompanied by a member of An Garda Síochána not below the rank of sergeant and with consent of a Garda Síochána superintendent".

This is a simple amendment to ensure a member of the Garda Síochána not below the rank of sergeant is involved rather than just anybody, as is stated at present.

The amendment proposes that firearms range inspectors, when entering firing ranges, be accompanied by a Garda sergeant with the consent of a superintendent. The function of a firearms range inspector is quite clear. It is to examine the range from structural, technical and safety points of view and to advise the Commissioner on whether it is suitable for authorisation. Persons appointed by the Minister will be required to have or to require the necessary technical expertise to enable them to carry out detailed examinations of these ranges. They will operate under a warrant from the Minister. There is no requirement for a firearms range inspector to be escorted by gardaí in the manner envisaged by Deputy Ó Snodaigh's amendment. Therefore, the amendment is not necessary.

Deputy Jim O'Keeffe's amendment No. 107 provides for the insertion of the words "at any time and without prior notice". This section provides for the firearms inspectors to enter and inspect ranges for the purpose of ensuring their compliance with minimum standards provided for in regulations. The Parliamentary Counsel advises that there is no limitation as to any time and notice. The amendment is unnecessary and I do not propose to accept it.

The specific reason the inspector enters any premises is to ensure it is not being used for rifle or pistol shooting. It would be appropriate if a member of the Garda Síochána were in attendance with the inspector on such an occasion. However, if the Minister is not willing to accept the amendment, I will not press it.

With regard to amendment No. 107, we wanted to be sure that on-the-spot inspections were acceptable. We are happy with the Minister's answer.

Amendment, by leave, withdrawn.
Amendment No. 107 not moved.

We move to amendment No. 108. Amendments Nos. 109 and 110 are alternatives. Amendments Nos. 108 to 110, inclusive, may be discussed together.

Bill recommitted in respect of amendment No. 108.

I move amendment No. 108:

In page 47, to delete lines 17 to 29 and substitute the following:

37.—Section 8 of the Principal Act is amended in subsection (1) by the deletion of paragraphs (d), (e), (f) and (g) and the insertion of the following paragraphs:

"(d) any person who has been sentenced to imprisonment for—

(i) an offence under theFirearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, or

(ii) an offence under the law of another state involving the production or use of a firearm,

and the sentence has not expired or it expired within the previous 5 years,

(e) any person who is bound by a recognisance to keep the peace or be of good behaviour, a condition of which is that the person shall not possess, use or carry any firearm or ammunition, and

(f) any person not ordinarily resident in the State for a period of 6 months before applying for a firearm certificate.“.”.

I move amendment No. 1 to amendment No. 108:

In paragraph (f) of the inserted paragraphs, to insert “(except a person who is temporarily so resident)” after “State”.

This is to make clear that in paragraph (f) there is provision for a person who is temporarily resident in the State to be dealt with. There is a doubt, which has been pointed out to me, that paragraph (f) might exclude persons who are temporarily resident in the State on the basis that they are not ordinarily resident in the State. That was not the intention of the Parliamentary Counsel. The amendment to the amendment proposes that, for example, a tourist coming to Ireland would not be excluded on the grounds that he or she was not ordinarily resident in the State for six months. I propose that both the amendment and the amendment to the amendment be accepted.

Amendment to amendment agreed to.
Amendment No. 108, as amended, agreed to.
Bill reported with amendments.
Amendments Nos. 109 and 110 not moved.

We move to amendment No. 111. Amendment No. 112 is related and the amendments may be discussed together.

I move amendment No. 111:

In page 48, line 18, to delete "18 years" and substitute "21 years".

The amendment simply raises the age at which a person may be registered as a firearms dealer from 18 to 21 years, as I agreed to do on Committee Stage.

Deputy Jim O'Keeffe's amendment No. 112 is similar to his amendment No. 110 regarding disentitlement to hold a firearms certificate for a person who has been sentenced to prison for a violent crime. While I understand the Deputy's point, the amendment is not necessary because under section 9 of the 1925 Act, it is a matter for the Minister to decide who shall be registered as a firearms dealer, and I am required when deciding whether to register a person to have regard to the character of the applicant.

In this context it is normal before registering a person as a firearms dealer to have regard to any offences committed by the applicant. However, if a person at the age of 18 years was sentenced to one month's imprisonment for being involved in a fracas, that does not necessarily mean that at the age of 45 that person must be branded as one who could not be a firearms dealer.

Amendment agreed to.
Amendment No. 112 not moved.

I move amendmentNo. 113:

In page 49, line 44, after "purpose" to insert the following:

", has secure storage for required material and equipment and is separate and distinct from living quarters".

On Committee Stage we had a not very informed discussion on this area of the Bill. I stated that I would table an amendment so that, as is the case with rifles and other weapons held under licence, there would be secure storage for required material and equipment regulated under this section, such as equipment which can be used to produce ammunition.

The Minister referred to sportsmen who need a specialised round with a particular weight or charge which they make themselves. If gunpowder or explosives are held in a house for this purpose, they should be separate to living quarters and held in some type of secure environment which is not accessible to children or others in the house. This is similar to the restrictions in place for guns and shotguns.

The amendment proposes to narrow down further what is provided for in section 10A(3)(e), which states: “the premises where the reloading is to take place are sufficiently safe and secure for that purpose”. The Deputy proposes to provide that the premises “has secure storage for required material and equipment and is separate and distinct from living quarters”.

I have consulted in this regard and the advice I have received is that the amount of material involved in reloading is quite small and that in some instances, for some people, the most secure place for them to have this equipment is at home rather than in some business premises. If a reloading sportsman who carries out this activity under a permit is required to have the equipment in a place separate from his house, such as a shed, business premises or lock-up premises, to keep the equipment in a separate location would perhaps be less secure than keeping it under the stairs at home or otherwise. It is a judgment call. The advice from the Garda is that it does not believe it would be a good idea to require people to keep all this equipment in a separate place from their home because it would be more vulnerable to theft than if it were kept at home. Sometimes one's home is one of the safer places one has at one's disposal.

The intention was not to require that the equipment be kept at a different location from that at which the work is done. Perhaps the amendment is badly worded. In using the term "secure storage" my intention was that a form of storage such as the secure cabinets used to store rifles in houses would be used. In using the term "living quarters" my intention was that this material would not be stored in a kitchen or bedroom but in another area such as a garage. I am flexible in this regard. While the wording may not be correct, the intention is to ensure the material is secure within the house, farmyard or other premises in which this work is done. One could have a secure premises within which a child could have access to these materials. Security in this regard does not refer only to intruders.

It would not be reasonable to interpret paragraph (e) as dealing only with perimeter security of a premises. The requirement that a superintendent must be satisfied that the premises where the loading is to take place is sufficiently safe and secure for that purpose not only means that the outside doors and windows must be safe but that the premises themselves are safe for the purpose. The internal characteristics, including whether the person will do the loading on the kitchen table while the children do their homework, is one of the issues the superintendent could take into account.

Amendment, by leave, withdrawn.

I move amendment No. 114:

In page 51, line 10, to delete "€1,000" and substitute "€3,000".

The purpose of the amendment is to increase the amount of fine from €1,000 to €3,000.

I think I suggested that change.

I think the Deputy is correct.

Amendment agreed to.

Amendments Nos. 115 to 120, inclusive, 129 to 159, inclusive, and 162 to 167, inclusive, are related and may be discussed together.

I move amendmentNo. 115:

In page 51, to delete lines 42 to 47.

My comments are addressed to a series of amendments I have in this grouping, namely, amendments Nos. 115, 116, 129, 131, 136, 138, 142, 144, 149, 150, 158, 159, 162 and 164. My amendments fall into two categories, one of which encompasses those proposing to delete those parts of the section with which I do not agree. I am, however, realistic enough to accept that I may not manage to persuade the Minister of the value of my argument. In that circumstance, he should take on board some of the other amendments I have proposed, including amendment No. 116 and a series of cognate amendments, which propose to insert the wording, "(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character, age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.

The ultimate purpose of the amendments is to maintain judicial discretion over sentencing outcomes. Sinn Féin acknowledges that the Minister is not proposing absolute, mandatory minimum sentencing, a point he made on Committee Stage, or that he is proposing the elimination of judicial discretion. However, in introducing this type of minimum sentencing he is trying to push the Judiciary in the direction laid down in the subsections. Subsection (4) establishes a ten year minimum sentence for an offence of possession of firearms with the intent to endanger life. Subsection (2) already provides for a sentence of up to life imprisonment to be decided by the judge. Amendment No. 115 proposes to delete subsection (4).

The grounds on which a sentence may be reduced are outlined in subsection (5). These are classic provisions of mandatory sentencing practices in other jurisdictions such as the United States and Australia. Evidence on mandatory sentencing from both these jurisdictions suggests it has failed to achieve its objectives.

While subsection (6) does not make the minimum sentence mandatoryper se, it does attempt to push in the direction of minimum sentencing by providing that the court may have regard to a number of factors and these are set down in the subsection. I have proposed that in addition to having regard to “whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence”, as provided for in subsection (6)(b), a court should also have regard to other factors, which are outlined in the amendment.

Under the Constitution, judges are responsible for administering justice. This should include determination of punishment, which must be appropriate to each crime, and the need to protect the public while maintaining the discretion to ensure proportionality in the interests of justice. Having made this argument on Committee Stage, I do not believe the Minister is willing to accept it. Nevertheless, I ask, even at this late stage, that he reconsider the direction he is taking in this section. While I agree that heavy sentences must be imposed for the offence of possession of firearms with intent to endanger life, judges must take certain factors into account. If the Minister proposes to tell judges they must take certain matters into account, it is appropriate that the House stipulate other factors the Judiciary must consider before passing sentence.

Sections 42, 57, 58, 59, 60 and 65 provide what are termed mandatory minimum sentences of five and ten years for possession of a firearm with intent to endanger life, possession of a firearm while hijacking a vehicle, possession of a firearm to resist arrest or aid escape, possession of a firearm in suspicious circumstances, possession of a firearm with criminal intent and altering a firearm under amendment No. 65.

Section 61 makes specific provision in relation to the application of mandatory minimum sentences. Section 42 substitutes a new section for section 15 of the Firearms Act 1925 and the new section provides for a maximum sentence of life imprisonment and a minimum mandatory sentence of ten years' imprisonment for the offence of possession of firearms with intent to endanger life or cause serious injury to property.

Section 57 substitutes a new section for section 26 of the Firearms Act 1964 and this new section provides for a maximum sentence of 14 years and minimum of five years for the offence of possession of a firearm while taking a vehicle without authority, in other words, armed hijacking.

Section 58 substitutes a new section for section 27 of the Firearms Act 1964 and this new section provides for a maximum sentence of life imprisonment and a minimum mandatory sentence of ten years for the offence of use or production of a firearm to resist arrest or escape from custody. It is specially designed to say that no garda, armed or unarmed, should ever face somebody who takes out a shotgun to threaten to kill him or her for the purposes of resisting arrest without the most severe consequences. Everybody in this House believes that is a reasonable provision. If we ask the Garda to be largely an unarmed force in the great majority, its members must know the law will severely punish anybody who threatens them with firearms, because their lives are on the line.

Hear, hear.

Section 59 substitutes a new section for section 27A of the Firearms Act 1964. This provides for a maximum sentence of 14 years' imprisonment and a minimum sentence of five for the possession of firearms or ammunition in suspicious circumstances. Section 60 substitutes a new section for section 27B of the 1964 Act and provides for a maximum of 14 years and a minimum of five for the offence of carrying a firearm with criminal intent.

Section 65 inserts a new section 12A into the Firearms and Offensive Weapons Act 1990 providing for new offences on the alteration of firearms. It creates new offences of shortening the barrel of a shotgun or rifle, converting a deactivated or replica firearm into a live firearm, modifying a firearm to fully automatic and increasing the calibre of a firearm. It also makes it an offence to possess a firearm altered in any of those ways. There is a maximum sentence of ten years and a minimum sentence of five years for those offences.

Section 61 inserts a new section 27C into the Firearms Act 1964 making specific provision for mandatory minimum sentences and provides that the power to commute sentences under the 1951 Act and normal provisions on temporary release under the Prisons Act and the Criminal Justice Act do not apply in relation to mandatory minimum sentences. These sections, as they stand, allow for some judicial discretion in imposing sentences. Where the court is satisfied that there are exceptional specific circumstances relating to the offence or the person convicted of the offence that would make the imposition of a sentence not less than the mandatory minimum sentence provided for unjust in all the circumstances, the mandatory minimum sentence need not be applied. These circumstances include any matters the court considers appropriate, including an early guilty plea and material assistance to the Garda investigation. However, the legislation clearly states that this is only to happen where there are exceptional and specific circumstances that would make a mandatory minimum sentence unjust. Therefore the mere fact of an early guilty plea is not in itself an exceptional circumstance and does not in itself allow a departure from the mandatory minimum sentence.

On Committee Stage Deputy Jim O'Keeffe proposed that there should be no judicial discretion for a second or subsequent offence under these sections. At the time I indicated that I was disposed to the thrust of his argument but that I wanted to discuss the matter further with the Attorney General to ensure that I was on firm ground. Following these discussions with the Attorney General's office I am advised that such an approach would be constitutionally sound.

It would be.

I was in doubt about it. Under the Firearms Act six offences attract mandatory minimum sentences and I am providing in amendments Nos. 117, 119, 120, 132 to 135, inclusive, 139 to 141, inclusive, 151 to 157, inclusive, and 165 to 167, inclusive, that where an offence carries a mandatory minimum sentence, any person convicted of a second or subsequent such offence shall be automatically sentenced to imprisonment for the mandatory minimum period allowed. I am also providing that where somebody who has a previous conviction for an offence that carries a mandatory minimum sentence is convicted of another offence that carries a mandatory sentence, that person shall automatically be sentenced for the mandatory minimum period. This means that if one commits a second offence to which the sentence applies, one cannot avail of the special excusing circumstances.

Are all the offences in connection with firearms?

Yes. It also means that if a person is caught by the Garda in possession of firearms with the intent to endanger life and he has in the past, say in 1997, notched up a relevant offence, he is on notice that he will receive the mandatory minimum sentence without any deductions if he commits that offence.

I am grateful to Deputy Jim O'Keeffe for opening this line of territory and to the Office of the Attorney General for clarifying its opinion on this matter. If a person is convicted of possession of a firearm with the intent to endanger life and it is his first such conviction but he has been previously convicted of possession of firearms while hijacking a car, the mandatory minimum sentence for possession with intent to endanger life will automatically apply and the court will have no discretion on it.

Is it constitutionally sound for the court to have no discretion?

That is what I am advised. Deputy Jim O'Keeffe aimed at the same outcome in his amendments Nos. 118, 130, 137, 143 and 163. I propose the Government amendments to cover the points he raised in his amendments. I am grateful to him for raising these issues. Deputy Ó Snodaigh is correct, and I agree with him warmly, that he has not persuaded me to change my mind on these matters. I know and respect his view on this and I do not believe we are going down the American or Australian road. Let us be clear on what has happened in America and the UK, where repeat offences of a serious, violent nature attract life sentencing and in America they attract huge prison sentences automatically after three felonies. Three strikes and one is out.

Three strikes and one is out.

I am not going down that road. However, any person in Dublin who has a Glock pistol in his pocket is a menace to society and this House must tell the Judiciary that there are no special and excusing circumstances for carrying a weapon with the intent to endanger life. If you commit a serious offence which carries a maximum penalty of life imprisonment, you can expect to take a serious hit if convicted of it.

While I accept that not all sentencing policy is effective as a deterrent, in this House we have, with the exception of Deputy Ó Snodaigh, a cross-party consensus that what is happening on our streets must be faced down. The people who think they can shoot others in the circumstances we have seen in recent months must realise that if they are caught with firearms in circumstances that give rise to convictions of the kind I have mentioned, they will go away for a long time, no questions asked and no frills. If they are repeat offenders, if they have ever had any history of such offences, and they are caught ever again, no quarter will be given and they will serve the minimum mandatory sentence.

The Minister's change of heart on this issue restores my faith in the parliamentary process. If we provide for minimum mandatory sentences in legislation we should provide for sentences that are in fact minimum and mandatory. In the past we provided for sentences that were alleged to be minimum and mandatory but in effect, because of the exceptional circumstances escape clause, those sentences were neither minimum nor mandatory. The escape clause was applied in virtually all cases until recently and even now in approximately 80% of cases.

I have always had a strong belief in judicial discretion but when it comes to the use of firearms we must weigh up the public interest. That is why I came up with this proposal on behalf of Fine Gael that whatever about the possibility of exceptional circumstances on a first offence, which one could envisage, there could not be such a possibility on a second offence. A person who got away with it, so to speak, under exceptional circumstances on a first offence would have received sufficient warning that he or she was teetering on the edge of a minimum mandatory sentence if he or she again had anything to do with firearms.

If we are to confront the scourge of firearms in our society, this is the tough line we must take, even where criminals shoot and kill one another. We can neither accept nor condone such acts. There is an attitude that in this way one useless part of society gets rid of another. I do not see it like that. There is a value in every life. There is too the danger of overspill from the criminal fraternity giving rise to appalling situations, such as the case of Donna Cleary.

The Minister also rightly mentioned our expectation that the Garda Síochána, which is mostly unarmed, defends society in difficult and perilous circumstances. We must be sure that if its members are confronted and sometimes wounded or killed by criminals with firearms, the consequences will be serious. I am glad that the proposals I made on behalf of Fine Gael have been adopted and incorporated in the new Act.

We must send out a message that these new measures are in place and anybody who possesses or uses firearms with intent to endanger life, or is guilty of the other offences provided for, will be in great difficulty if he or she already has a conviction or if there is the possibility of two convictions in the future. When the Minister deals with the amnesty provisions, which I support, he should simultaneously issue due warning, through the media and otherwise, of the consequences for those who ignore the amnesty. Some of the hardened members of our criminal community will do.

We will advertise but without my photograph.

I do not wish to encourage the Minister to use the opportunity for further self-promotion. He avails of that opportunity every morning, rather like having his morning coffee, but it should not happen at State expense. This is a serious issue because we need the amnesty. When it, rather than the Minister, is being promoted, the consequences should be pointed out to those who ignore the amnesty and continue to possess firearms with intent to endanger life.

This is a good day for democracy. I hope this will be helpful in the fight against crime, especially against those who avail of firearms. I accept that the Minister's amendment takes on board the spirit of my amendments so I will not press them.

I agree with Deputy Jim O'Keeffe that this is a good day for democracy. The notion that people can wander our streets with guns is deplorable, no matter whom they kill. It puts us all at risk. We should be conscious of that because, as has happened in the past, innocent people can caught in the cross-fire.

I seek reassurance, however, from the Minister on the content of this section. Will any other offence be taken into account or does this refer strictly to guns? I would hate to think — as the Minister said earlier — that someone caught shoplifting at the age of 14——

It refers only to these offences.

I accept the Minister's reassurance on that point. Am I right in thinking that the early release programme, carried out by a committee that meets in various prisons, would kick in only after the minimum sentence had been completed? I hope the removal of discretion from the judges is constitutionally sound because there have been many challenges to legislation, and I would hate to think that something as worthwhile as protecting people from violence would fall because of a constitutional challenge.

Am I the only one who sees the irony in what is happening in this Bill? On the one hand, people say it is a great day for democracy because we will be protected from guns, but on the other, in approximately 25 minutes, we will debate a Bill giving people the right to shoot people who break into their homes. I happen to believe that guns are dangerous no matter who holds them. What happens if I shoot three burglars?

As long as the Deputy does not kill them it does not matter.

Maybe I will. This section of the Bill does not refer to killing anyone. Does it matter if I shoot three burglars or does this section apply only on the street? Where is the logic in what we are about to do? I agree with this section because it will take firearms out of society, but in 25 minutes' time we will give peoplecarte blanche to use them. It concerns me that a burglar could, quite rightly, take the gun from me and I become the victim. If this Bill reflects our attitude to firearms, that should continue into the rest of our lives.

I would like reassurance from the Minister on the three points, namely, that no other offence would be taken into consideration — it is right that this would remain within the context of having firearms with intent to endanger life, and I do not see any other reason to have a firearm — the relationship between maximum and minimum sentences and the probation service, and the question of judicial discretion.

I did not realise we would discuss the home defence Bill in conjunction with these amendments but I am glad that Deputy Lynch brought it up because it is within the Minister's remit to allow her deal with the issues she has mentioned. Many Members of this House are concerned about this, including those who initiated the Bill, which is at a preliminary stage. We are asking the Minister to allow it proceed to Committee Stage. There would be many amendments on Committee Stage and the Minister knows all too well about amendments and how successful they can be in turning a Bill around, as he and the Opposition Members have shown in respect of this Bill.

There is no reason the home defence Bill that we will discuss next——

I regard it as an insurance policy.

——could not equally be amended on Committee and Report Stages to deal with some of the issues Members raise. The most important issue is that it indicates to people that they are entitled to defend their homes, to have some legal protection and not to be sued by the person who invades their property or attacks their person if they try to defend themselves or their families. Many of these things could be dealt with in this Bill within the next couple of weeks, rather than in six months' time as the Minister has indicated.

We must remind ourselves that the maximum sentence for crimes of this nature is life imprisonment. It has been open to the Judiciary to impose such a sentence. We were right to criticise the Judiciary from the outside for the lenient sentences it imposed in many cases in the past. I do not know whether the provision that was introduced to allow lenient sentences to be appealed applies in this case. Perhaps we should encourage more lenient sentences in relation to firearms, considering the number of firearms and the number of shootings in this country. Shootings are so commonplace now that many of them are not reported. I know of an incident a few weeks ago when a young man shot a finger off another man, but it was not reported by the media. I do not know whether it was even reported to the Garda. That is the extent of the use of weapons in society. We should take a stronger role to ensure that no further loss of life takes place, even if those who are killed are regarded as the scumbags of our society. Despite Operation Anvil, which has not delivered what the Minister hoped it would deliver, such people continue to wave their weapons around and shoot at will. There are probably more weapons on the streets now than there were at the start of Operation Anvil.

We need to get tough. This Bill and some of the amendments which have been proposed to it will help to erode the discretion of the Judiciary. My amendment No. 116 states that "previous criminal record" should be taken into consideration in sentencing, rather than in securing a conviction. At present, judges take into consideration many matters, including "previous criminal record". Before we provide for a minimum sentence, we should ensure at the very least that judges take into account the criminal record of a person who may have committed a second, third or fourth offence. It is obvious that judges will take a dim view of people who come before them having previously been convicted, served a sentence and been released, only to get involved with criminal gangs again. Judges should issue appropriate sentences in such cases. I firmly believe the Judiciary is capable of considering all the circumstances before it makes decisions. As lay people, we are sometimes unhappy with such decisions. It is obvious we have a right to criticise in such circumstances.

I do not think we should take away judicial discretion. If we start to interfere with the Judiciary by telling it to deliver sentences of a certain type and not giving it any discretion in instances of second offences, it will not be a good day for democracy. A person who committed an offence when he or she was very young might not commit a second offence until 20 or 30 years later. There may be mitigating circumstances, for example in cases such as those highlighted by Fine Gael in the Private Members' Bill that will be discussed in the House later this evening. There might be mitigating circumstances if a householder who is defending his or her property is arrested for being in possession of an illegal firearm.

That does not mean we should allow such people to shoot away.

While I do not agree with the Fine Gael Bill, there are times when a particular type of approach is needed from the Judiciary, or when it should be given the discretion to take more than previous weapons offences into account. That is the effect of most of my amendments in this grouping. Some of the other amendments propose the deletion of entire sections of the Bill, as I have said.

It is obvious that the Minister is determined to go down this road. Not only did he initially include certain provisions in the Bill, but he has now gone further by proposing these amendments this evening. It is regrettable that he has adopted such an approach. It has been shown in other jurisdictions that mandatory sentencing does not work. Some of the states in the US have repealed their legislation providing for mandatory sentencing in cases of drugs offences because that legislation did not have the desired effect. It did not bring an end to such offences. I do not believe that the provisions in this Bill will act as a deterrent to the lunatics in our society who are using weapons, especially young people who are coked up to the head. The Garda needs to take much tougher action and concentrate on these gangs to a much greater extent if it is to ensure their weapons are taken from them, they do not continue to put the lives of civilians in danger, they do not threaten young people to get them to become involved in gangs and they do not use weapons to ply their poisonous trade. I am not trying to be soft on gun crime — far from it — I am saying we have to get tough, but there are ways of getting tough without interfering with the discretion of the Judiciary.

I will respond briefly to Deputy Lynch's queries. I assure her that the deprivation of the special and excusing circumstances clause applies only to repeated instances of the offences with which we are dealing in this legislation. If one was done for shoplifting at an early age, that is not relevant.

That is good.

The Deputy asked whether there is a contradiction between the line we are taking in this respect and the manner in which we are dealing with other issues such as the defence of one's home. Deputy Murphy will agree that not all of one's defence of one's home is done with a firearm. Most people do not have firearms in their homes——

Thankfully.

——and are not in a position to use firearms to defend their homes.

One can use a poker.

They are in a position to use pokers, hatchets and other implements.

They are entitled to defend themselves. There is nothing contradictory about saying that any obligation to retreat should be irrelevant when one takes a stance in defence of one's self, one's family, one's property and one's home. I do not think that is some kind of neo-fascist view, I think it is a reasonable view. I do not think one should be obliged to retreat from people who are invading one's home, especially if they are doing so with criminal intent. That is why I believe Senator Morrissey's Bill is preferable to the Bill to be debated by this House today. That is a matter for later this evening, however.

It is amazing that the Minister has introduced the concept of neo-fascism to this debate. I never mentioned it.

I am just saying——

I know why the Minister is saying it. He is saying it because it is true.

It is not for me to exploit the huge and vehement disagreement between the Labour Party and Fine Gael on this issue.

Go on, it will not do any harm.

I will merely say that it is the first sign of a major fracture of opinion. Perhaps Deputy Murphy will agree that the cynic in me is possibly justified in saying that this division is a reflection of the parties' task of securing different segments of the electorate's vote. Deputy Lynch will be the bleeding heart and Deputy Murphy will wear the jackboot. They will be happy then.

I have never been called a bleeding heart before.

The Minister can try that out by accepting the Criminal Law (Home Defence) Bill 2006 and seeing whether we can sort out our differences by means of amendments on Committee and Report Stages.

We are straying a wee bit from the subject matter.

I take it as an absolute compliment to be accused of being a bleeding heart.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendmentNo. 116:

In page 52, line 33, after "sentence" to insert the following:

"and

(c) the circumstances in which the offence occurred including any aggravating and mitigating factors, extent of violent behaviour, character, age, previous criminal record, family circumstances, expressions of remorse, whether alternatives to custody would be a more appropriate sentence or part thereof and the imperative to protect the public from harm”.

Amendment put.

Will the Deputies claiming a division please rise?

Deputies Ó Caoláin, Ó Snodaigh, Morgan and Ferris rose.

As fewer than ten Members have risen I declare the amendment lost. In accordance with Standing Order 68 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Amendment declared lost.
Debate adjourned.