Select Committee on Enterprise and Economic Strategy díospóireacht -
Tuesday, 6 Sep 1994

SECTION 82.

Mrs. O'Rourke

I move amendment No. 213:

In page 47, subsection (1) (b), line 22, after "premises" to "insert "for that purpose".

This amendment is for clarification purposes, to limit the restriction in relation to the business premises to premises used for the purposes of moneylending. Otherwise, a moneylender could maintain a business premises for any purpose other than that of moneylending, including a private residence. This would create difficulties for the Director and for the authorised officers in any investigation they might wish to carry out in relation to the licensee's moneylending activities.

Amendment agreed to.

Chairman

Amendment No. 215 is an alternative to amendments Nos. 214 and 224. With the Committee's agreement, we will take amendments Nos. 214, 215 and 224 together. Is that agreed? Agreed.

Mrs. O'Rourke

I move amendment No. 214:

In page 47, lines 24 to 38, to delete subsections (2) to (5) and substitute the following:

"(2) Where a member of the Garda Síochána has reasonable cause to suspect that a person in a public place is engaging in the business of moneylending in contravention of subsection (1), the member may, without warrant, stop, question, search and remove from that person any documents or money which the member reasonably believes may be in that person's possession for the purpose of moneylending.

(3) In this section ‘public place' means any place to which the public have access whether as of right or by permission and whether subject to or free of charge, and the doorways, entrances and gardens abutting onto a public place and any ground or car-park adjoining and open to a public place shall be treated as forming part of a public place.".

Deputy Quill submitted amendment No. 224, which appeared fair and reasonable. On that basis, we went back to the parliamentary draftsmen and they considered the amendment's thrust was congruent with the aim of the Bill. However, they used different words, although I would be happy to accept the Deputy's words. The draftsmen came back with the amendment in my name, which is a substitution for amendment No. 224. Amendment No. 215, in Deputy Bruton's name, will fall if amendment No. 214 is accepted. Amendment No. 214, in my name, has the same thrust as amendment No. 224 and also takes amendment No. 215 into account.

Miss Quill

I appreciate that the Minister has taken into account the substance of my amendment. Amendment No. 214 meets all the requirements and intentions I had in mind when I framed amendment No. 224. If anything, it firms up and improves my amendment and I thank the Minister. I support her amendment because it achieves the results I intended. I will withdraw my amendment.

Mr. M. McDowell

This is an important amendment. A man who used to sell newspapers on the corner near to where I live was also an unlicensed moneylender and he was in my mind when discussing this Bill with Deputy Quill. A garda standing on the opposite corner watching him would have been powerless to intervene because he would not have caught him with his notebook or a wad of money in his pocket. Unless there is a practical power of this kind, we will never catch the real baddies.

Mrs. O'Rourke

As an addendum to that, not alone did we engage with the Attorney General on this matter but also directly with the Department of Justice and the Minister for Justice. They were aware of the validity of Deputy Quill's amendment. We are not changing words for the sake of nit-picking but because these words are more legally sustainable.

Mr. R. Bruton

I support this amendment. In my amendment No. 231, designed to achieve the same thing, I tried to include in a subsequent section powers of arrest for the Garda who would have jurisdiction over abuses of section 82 where I believed there was a major gap. There must be a proper system to challenge those suspected of lending without a licence and I am glad what was a considerable gap in the legislation, has been filled. Could the Minister comment on the different formulations of the two enforcement sections?

Mrs. O'Rourke

Does Deputy Bruton mean the section I put forward.

Mr. R. Bruton

Yes, and section 90, which gives gardaí certain powers to require names and addresses, etc. In this new provision gardaí are being given the power to stop, question and search——

Mrs. O'Rourke

In a public place.

Mr. R. Bruton

——but apparently not to arrest. What are the differences between those two provisions? We seem to be proposing different types of enforcement powers for gardaí in section 82 from those in sections 88 and 89. I am interested to know why they are different and what are the cogent differences. Is there a danger that gardaí might be confused because they will have different powers in different offences?

Mrs. O'Rourke

I am unable to answer precisely, but any legislation involving powers of arrest following interrogation is drafted with the Department of Justice and the Attorney General and this is in line with their requirements in that regard. We do not have the means to deal with matters like powers of arrest, etc. so we relied completely on the Department of Justice in conjunction with the Attorney General.

Mr. R. Bruton

There seems to be a different power in that under section 90 gardaí have the power of arrest without warrant but in this section they seem to have the power to stop, question and search. Perhaps Deputy McDowell might know whether the gardaí would view these two sections as giving different powers. Will gardaí be weakened by not having the power of arrest?

Mrs. O'Rourke

The two sections were drafted via the Department of Justice. I presume it would know what gardaí would be most comfortable with.

Mr. Rabbitte

I want to raise the same point as Deputy Bruton about the power of arrest. Like so much of the discussion we have had on this Bill — I apologise for my unavoidable absence this morning — the past is based on our experience as TDs doing constituency work. Last weekend I dealt with a not unusual case which made me focus on this section. It concerned a young woman with three children who had a liaison with a man — I was going to say a gentleman, but it is an inappropriate term — who absconded and left her with bills which she thought had been discharged.

The situation is now considerably worse because for the past three weeks two gentlemen arrive at her door weekly to extract whatever is extractable — an average of £50 per week. They have threatened to take her children's allowance money which must be due this week. On one occasion she protested that she could not find any money, that she had never borrowed from them and that she does not know who they are and why should she be liable. However, her friend had given her address when he borrowed this indeterminate amount of money. When she protested, the money collectors broke her windows and told her that was the beginning of what they would do.

I pleaded with her to allow me talk to the gardaí. However, the problem is that neither she nor the gardaí know what time the collectors are likely to call because on the three occasions they visited, they called at different times and on different days. I am not permitted, without her authorisation, to go to the gradaí, although they advised me that what is happening constitutes intimidation at a minimum. However, they felt that existing legislation did not allow them cope with the situation easily.

Deputy Bruton raised this point which I looked at in the context of the later section on the right of arrest. This is a good amendment which I welcome without reservation. If we accept that that definition of a public place would meet the circumstance which I spoke about, can the gardaí arrest these individuals? This woman has three children under three years of age and this constitutes harassment, which has put her in fear of her life. While I note the power to stop, question and so on, do gardaí have the power to arrest these individuals? Does the power given by section 90 apply in his case?

Mrs. O'Rourke

Deputy Quill's amendment was interpreted and presented in collaboration with the Department of Justice and the Attorney General. Deputy Bruton raised a point about his amendment No. 231. The purpose of my amendment No. 230 is to extend the powers of arrest of the Garda Síochána provided for in section 90 to deal with persons who engage in the business of moneylending without a licence to do so. The recommendation emanated from the Director of Consumer Affairs. Deputy R Bruton's amendment is technically similar to mine and it has the same effect. Perhaps we could deal with those amendments now.

Mr. M. McDowell

I am anxious that effective power of intervention is available——

Mrs. O'Rourke

Deputy Rabbitte has told a horrific tale.

Mr. M. McDowell

Section 88 refers only to somebody else's documents and relates, I presume, to items such as pension books and children's allowance books. Section 89 relates to the obligation to furnish one's licence or a copy thereof or the authorisation to a garda who asks for it.

Deputy Bruton is correct in saying that section 90 only allows the garda to arrest a person either where the person has documents belonging to another person or the person fails to produce his or her moneylender's licence or authorisation. That is probably enough. Presumably, the people Deputy Rabbitte spoke about cannot produce an authorisation.

Mrs. O'Rourke

They cannot produce anything except their physical force.

Mr. M. McDowell

If section 82 was included in the list of offences in section 90 (1) it would provide for too wide a power of arrest. It would mean that somebody whose licence has expired or somebody who has no business premises which is not used as a residence can be arrested and brought to the garda station. Part of section 82 is quite technical and is not applicable to leg breakers.

Section 89 is, curiously, crucial. Under the Minister's amendment a garda can stop somebody if he has reasonable grounds to suspect that the person is collecting repayments. The garda will ask to see the authority and if the person in question fails to produce it he will be arrested. Section 89 is probably enough with the inclusion of the Minister's amendment.

Mrs. O'Rourke

The Deputy is referring to amendment No. 214?

Mr. M. McDowell

Yes. With its conclusion the garda, on seeing the documents and money, can seek the authority. If the person in question cannot produce it the garda can make the arrest.

Mrs. O'Rourke

Deputy Rabbitte is talking about heavy gang tactics albeit by one person while Deputy McDowell is talking about a suspicion that the person in a public place is doing something else under cover.

Mr. R. Bruton

The Minister's amendment proposes to delete subsections (2) to (5). My interest is in subsection (4):

A holder of a moneylenders licence shall issue, in writing in such form specified by the Director, to any person engaging in the business of moneylending on his behalf including collecting repayments, authorisation to so engage. . .

Is that covered elsewhere?

Mrs. O'Rourke

Yes, in the next section.

Mr. Rabbitte

I accept that the combination of powers ought to be sufficient to enable the gardaí to take action.

Mrs. O'Rourke

They are greatly strengthened by that amendment.

Mr. M. McDowell

Subsection (5) is being deleted. Will it be replicated elsewhere? It refers to the power of the District Court to "order the Director to revoke, suspend or alter the licence".

Mr. Rabbitte

It is excised.

Mrs. O'Rourke

It is excised because this subsection duplicates the provision of section 81 (9) and is also contradictory in the context of section 82. Section 82 (5) states:

Where a person who is convicted of contravening this section is, at the time of such conviction, the holder of a moneylenders licence, the court may order the Director to revoke, suspend or alter the licence from the date of the conviction.

Mr. M. McDowell

That is being deleted and section 81 (9) will apply. Is the Minister happy to get rid of the compulsory power of the court to direct the Director to revoke a licence?

Mrs. O'Rourke

We consulted the Department of Justice about it. The Department conducted a full investigation of our proposal and Deputy Quill's suggestion. This, it recommended, would be the most proper way to deal with it.

Mr. M. McDowell

The Department did not offer a reason for removing the District Court role?

Mrs. O'Rourke

No. This was presented as the best option.

Amendment agreed to.

Amendment No. 215 not moved.

Section 82, as amended, agreed to.

NEW SECTION.

Mrs. O'Rourke

I move amendment No. 216:

In page 47, before section 83, to insert the following new section:

"83.—A holder of a moneylenders licence shall issue, in writing in such form specified by the Director, to any person engaging in the business of moneylending on his behalf including collecting repayments, authorisation to so engage or collect signed by, or on behalf of, the licence holder.".

Mr. R. Bruton

It would be worth-while if the Director would include some of the salient points from the licence in the design of the authorisation. Facts such as the APR to which the moneylender has committed himself in the licence would be available on the authorisation to the consumer. It should be possible for the consumer to see from the authorisation if the Director has specified a maximum APR in the licence. Perhaps the Minister, when discussing this with the Director, would suggest that the authorisation carry some of the salient features of the licence.

Mrs. O'Rourke

I will do that.

Amendment agreed to.