Amendments Nos. 7 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.
SECTION 8.
I move amendment No. 7:
In page 8, subsection (1), lines 14 and 15, to delete "and which is owned by the person convicted".
Section 8 of the Bill provides that, where there is a conviction for an offence under the Act, the local authority may apply for the forfeiture of the horse to which the offence relates. However, there is a restriction because there can only be a forfeiture if the conviction is against the owner of the horse. It may be that the offence was committed by someone other than the owner, which is provided for under section 27 and involves failure to comply with a requirement from a garda to move an unlicensed horse from a public place. There may be cases whereby the owner of a horse may be acting in a manner which renders him or her unworthy of being allowed to keep the animal by placing it under the control of a person who commits an offence. If an offence is committed in respect of a horse and the welfare and interests of the horse require that it be forfeited, the power of the court to order forfeiture should not depend on the identity of the person convicted of the offence.
I considered the amendment carefully and sought advice from the parliamentary draftsman, the legal advisers and the Office of the Attorney General. The amendment was deemed unconstitutional in that it involves the question of property. If an accused individual is using someone else's horse, he or she may be doing so without the owner's permission which could introduce the issue of ownership to proceedings. I was advised this could be challenged and, in the event, it could be deemed unconstitutional.
Section 27 empowers an authorised member of a local authority or a member of the Garda Síochána to require a person in control or charge of an unlicensed or unexempted horse in a public place or control area to remove the horse immediately. If this is not done, I assume it represents an offence under the Bill. In that case, responsibility is not confined to the owner.
There is a difference between forfeiture and removing a horse. The amendment provides that the court may decide that a horse may have to be forfeited if it is decided that a person owns the animal. If he or she is not the owner, the problems I outlined could arise. Removing a horse from a control area involves taking the horse out of that area. The horse will not be forfeited in such cases. I cannot see a contradiction between what is proposed in the amendment and the provisions in the section.
Will the power of forfeiture under the Act will be confined to cases where the owner is convicted, not to instances where an offence is committed by another person in charge of a horse?
If the individual does not own the horse, it cannot be forfeited. There are other sections in the Bill which also cover forfeiture in other circumstances. If a person is convicted of an offence, he or she must own the horse to which the conviction relates. The court may not order the forfeiture or a horse if the offence is committed by a person other than its owner.
Do I understand "forfeiture" to mean that the horse may be disposed of?
Yes.
If forfeiture is to apply only in cases where the owner is convicted of an offence, surely the provision substantially restricts the effectiveness of the legislation? There will be many cases where horses are kept in contravention of the terms of the legislation. However, local authorities will only have power to remove a horse where its owner is identified, brought before the courts, prosecuted and convicted. It is very restrictive.
The legal advice given to the Minister of State is remarkable. I wonder if it has been given to the Revenue Commissioners with regard to contraband cases. I never heard it suggested that the Revenue cannot seize goods and institute condemnation proceedings in relation to goods being illegal imported to the country on the grounds that the identity of the owner cannot be proven. This seems remarkable and, if it were drawn to his attention, the Attorney General might revise his advice on the matter.
Local authorities have the power to acquire and dispose of property where the identity of the owner is not known. If the owner's identity subsequently becomes known or he or she can provide proof of ownership, he or she can be compensated by the local authority. However, in many cases, such property is acquired and disposed of an the open market. It may be sold to private individuals for development purposes and the ownership transferred. I also question whether the advice given to the Minister of State is correct and whether this matter was extensively considered. I am aware that the amendments were tabled at a late stage, but perhaps the Minister of State would reconsider the matter?
I will seek further advice on what Deputy Molloy suggests in his amendment and I will discuss it further with him. It is an important point. The advice I received was that unless the convicted person owned the horse, it could not be forfeited. It raises the question of ownership of property. I reject it on constitutional grounds but I will discuss it further and obtain further advice.
It seems that for years Ministers quoted advice from the Attorney General's office that, in relation to a problem which arose under the Planning Acts, because ownership of property was involved, they could not take action because this would have been unconstitutional. During negotiations for the Programme for Government in 1989, my party raised this as an issue we wanted included in the programme. When the same answer was trotted out by the people with whom we were negotiating we asked to meet the people giving the advice. We met them and they denied ever having given such advice. It was being quoted for years that something was unconstitutional because there were property rights involved. Legislation was subsequently introduced and that situation has been altered in regard to compensation rights for property under the Planning Acts, where planning permissions have been refused because of certain zonings and compensation is claimed. All that has changed.
I am not terribly impressed when I hear the Attorney General's office say that this is unconstitutional because there are property rights in question. I would like the Minister to give us a definitive statement from the Attorney General that this is so.
I will seek that.
Sitting suspended at 1.3 p.m. and resumed at 2.3 p.m.
The Minister of State said prior to the adjournment that he would consult further on the intent in this amendment. In view of Deputy Lenihan's and my comments, I take it that the Minister of State had the matter seriously considered. I do not know if he contacted the appropriate people between 1 and 2 p.m. but I hope the opinion he will give us is based on some authoritative source in the Attorney General's office and not some of the casual comments we have had from the office in the past. Some of the matters they deemed to be unconstitutional were subsequently unchallenged and were in fact promoted by the Government.
In response to Deputy Molloy, I spoke to the parliamentary draftsman. Because it was over a lunch he was unable to get the required information from the AG's office and, as Deputy Molloy is aware, this amendment came in last night. I responded along the lines of the information that I was given. The thinking is that if this amendment is accepted, that it would be draconian to the extent that an individual might not know that his horse was involved in a court case where the user of the horse has been convicted. It would be unfair. When this and Deputy Kenneally's issue were being considered originally, the advice was that this could pose constitutional difficulties if put into the Bill. Those are the grounds on which I am rejecting Deputy Molloy's proposal. Following advice and further clarification from the Attorney General's office, I will get opportunities on Report Stage and in the Seanad of considering this proposal by Deputy Molloy. At this stage my advice is to reject this amendment.
I accept that the Minister of State may be in a difficult position in that the amendment came in last night and the Attorney General's office may not have had adequate time to consider the proposals. In view of the Minister of State's failure to contact anyone in the Attorney General's office and his suggestion that it might be examined on Report Stage, I am strongly advised that this matter is not contrary to any provisions in the Constitution. I ask if it would be possible to reintroduce this amendment at a later stage and to leave it for the time being, rather than deal with it now.
On the advice received at the last meeting, it is possible to reintroduce an amendment. Generally speaking, any amendments that have been reintroduced have been accepted.
Reintroduced at what point?
On Report Stage.
I know that they can be reintroduced at Report Stage. I suggest that we postpone discussion on it now on Committee Stage and proceed with the other sections. When we come back to it maybe a definitive opinion will have come from the AG's office.
I cannot do that. I must put it now. I cannot adjourn it unless the Minister of State is in a position now to give that advice. I cannot say leave it until 5 p.m. and then return to it.
What Deputy Molloy is saying is that he could, depending on the advice, reintroduce it at Report Stage.
No. That is not what I am saying. We should postpone a decision on this——
Until this evening?
Yes, until the end of discussion of the Bill.
I am not in a position to do that.
We have revisited sections and amendments before.
We could take this with the section. I must take the amendments as they are listed. I cannot pass one amendment and go on to another.
I will reintroduce the amendment on Report Stage, provided that is in order.
So far that is what has happened. I advised the committee on that matter last week following extensive research. It is possible to re-enter amendments. I cannot indicate to a Member whether the amendment will be accepted as that is a matter for the Ceann Comhairle and the Dáil.
The Chairman of the committee acts in the capacity of the Ceann Comhairle.
Not according to the advice I received. We researched Standing Orders and precedents and I gave the advice I received to the committee last week. The Deputy has the right to re-enter an amendment but it is a matter for the Ceann Comhairle to accept or reject it. It is not provided for as such in Standing Orders so I have no authority to agree to the Deputy's proposal. However, the Deputy is free to re-enter his amendment if he withdraws it.
I will press the amendment.
Amendment put and declared lost.
Amendment No. 8 not moved.
I move amendment No. 9:
In page 8, between lines 17 and 18, to insert the following subsection:
"(2) On seizure of a horse for the second occasion such animal shall be deemed to be forfeited to the relevant Local Authority in whose functional area it as detained.".
We may run into the same difficulty on this amendment as with the last two amendments. When we discussed the heads of the Bill we were told it was the intention to include a provision in the legislation that once an animal had been seized three times it would be forfeited. No such provision is in the Bill. Under the Bill a horse can only be forfeited through court proceedings. That provision is too cumbersome given the delays in the court system. We need a simpler mechanism.
The Minister of State should consider the intent of the amendment. My local authority has suggested that a second offence should lead to automatic forfeiture of the horse. It would then be for the local authority to dispose of the animal. Without such a provision there will not be a strong enough deterrent. A strong deterrent is needed to make people comply with the intentions of the Bill.
I accept the Minister of State's point that the Bill is a total package and there may be other sections which deal with the forfeiture of a horse in another way. It should be made clear in the Bill that on the second occasion of a breach of the Bill's provisions, the horse must be forfeited to the local authority. If such a provision is not included we will have failed in the essential control measures we seek. The Minister of State should find a mechanism for inclusion in the Bill to give the local authorities and the Garda the necessary powers.
I have no doubt the Bill will be tested to see if it covers the most unusual circumstances. When a garda or an official of a local authority encounters a wandering and unattended horse they have very little evidence on which to make decisions. They have to make an immediate decision whether the horse should be impounded, without any reference to the circumstances of ownership, if the horse is a serious danger to the public. Whether it has been the subject of an offence on a previous occasion is irrelevant.
It is reasonable to offer people one chance. In my opinion we should give no chances — the horse should be forfeited on the first offence. However, others would argue that people have to be given a chance. Therefore, the horse should be forfeited on the second occasion at least. I ask the Minister of State to address the matter.
I see the validity of Deputy Kenneally's amendment. Part of the frustration for local authorities in dealing with this matter is that when a horse is seized it is often recovered quickly. The seizure of the horse appears to be the supreme penalty on the people involved. The Bill provides reassurance that the Minister may provide finance to local authorities to assist them. That aspect should be strengthened. I understand it costs the council about £600 to take a horse off the street and impound it in Cork. Will the local authorities be compensated for the difference between that amount and what they my get in fines under the Bill. If the financial cushion is not there it is important to have the deterrent for a second seizure of a horse.
Financial implications may make it difficult and costly for local authorities to administer this Bill. The local authorities are sceptical about Government reassurances on compensation arising out of implementing new legislation. Implementing the provisions of the Abattoirs Act, 1988, was paid for by local authorities. It often falls to the local authorities to meet the financial implications of the implementation of national measures. Will there be a financial cushion to compensate for implementing the provisions of the Bill? If not, Deputy Kenneally's proposal would become important as a deterrent. We are talking about a group of people who have had no problem flouting the law on this issue in the past. That is the only deterrent which will frighten them.
I support the amendment and if the Minister refuses to accept it, the Bill will not be as strong as all of us wish. All the Members here have local authority experience and have dealt with this. Time and again officials have related the difficulties of rounding up and bringing horses to the pound and the cost involved. In many cases in Galway the horses have been back out in the open fields even before the lorry which brought them to the pound had returned to the county council yard or wherever, since many of the lorries are hired privately. The only real penalty which will concern owners of these horses is loss of the animal. If the owner has an animal which is on a second offence, it is imperative that the animal is forfeited. Owners seem quite prepared to pay enormous amounts of money to have their animals released from the pound and brought back to wherever the horse was grazing illegally. It is such a serious matter principally because of the number of children injured by wandering horses, in local authority housing estates in particular, and the damage to property. If we are to tackle this problem seriously, a provision such as that proposed in the amendment is essential. I urge the Minister to accept the views of all members of the committee. Everyone, apart from the Minister and the Chairman, who has expressed a view has asked that he accept the amendment. Surely that should carry some weight.
As Deputy Kenneally pointed out, the spirit of this amendment was contained in the heads of the general scheme which was passed by Government but, following the draftsman's advice, it was pointed out that the original proposal in this amendment was quasi-judicial and open to constitutional challenge. In addition, it cuts across property rights. I was unable to go ahead with my original proposal as a result of that strong advice.
However, I have proposed amendments to sections 20 and 38, which we will discuss later and which, I hope, will make it very unprofitable for people to allow their horses to be confiscated repeatedly. For example, under section 38 (2)(b) local authorities could impose an increasing scale of fees for repeated impoundment. In other words, if the owner wants to retrieve the horse, a deterrent would be put in place by increasing the fees after each impoundment.
I am trying to get around the problem we would face here because it is basically a matter of property rights. It is a decision which I was advised should be made by a judge, not a county council. In addition, it would pose a constitutional challenge by strengthening the other sections. For that reason, and although it formed part of our original proposal, I reject this amendment.
While I welcome the provision that a local authority may increase the scale of fees for each subsequent impoundment, which can be a deterrent in itself, that is only one and we should put as many deterrents as possible in the way of these people. There will still be situations where to effect the forfeiture of the animal, you will have to go to court. That will still be the case. The only way to stop that is to provide the local authority with an automatic means to seize, detain and not return a horse.
We are back to the problems we experienced with Deputy Molloy's amendments to sections 7 and 8. We do not have access to the Attorney General's advice or its content, so it is difficult to comment on it. I am not a legal person but I want to see that advice. I want somebody from our side to examine it and advise me on it.
Deputy Lenihan spoke of an example of contraband and the Revenue Commissioners. If what the Minister says is true, Deputy Lenihan wondered whether what they are doing is constitutional. On the subject of property rights, he also pointed out that if an animal is allowed to stray, one could interpret that the owner of that animal could be deemed to have abandoned it, thereby forfeiting the property rights. If that is the case, it would make it a constitutional matter.
As I understand it, if I withdraw this amendment, I will be allowed to reintroduce it on Report Stage. I would be prepared to do that to get additional legal advice on the matter. Will the Minister supply me with the Attorney General's advice?
I support Deputy Kenneally's request. It is unsatisfactory that the committee has been told the Minister has received advice that something is unconstitutional and that we are not given any written statement as to its basis. It is imperative that the committee is given a written statement from the Attorney General's office on the basis for coming to this conclusion so that Members can have it examined. From our experience, the Attorney General's office has not always proven to be correct. Its advisers are good but they are not the ultimate.
I am sure the Minister will make himself available at reasonable notice between now and Report Stage.
We are asking to be supplied with the Minister's legal advice. The Minister must act on the advice he is given by the Attorney General. We do not seek a consultation with the Minister on the matter. We want to see the advice he has been given.
That is a matter for the Minister.
My attitude to this Bill from the beginning was that we could only move forward with co-operation from all sides and open consultation. That is what I have been trying to do. I am trying to accommodate everybody's point of view as much as possible. We have had widespread consultation with all interests, both for and against this Bill. I have adopted the same attitude with the Deputies. I am willing to provide any information or interpretation. I hope we can produce an effective Bill and ensure it is enforceable and not open to challenge.
Are you saying you will make that information available to any member who wishes to examine it?
If it is possible to make it available, I will do so.
Was the advice given to the Minister in written form? Will he give the committee access to it? I am trying to establish the legal basis for this decision.
It was based on discussion with the officials rather than on written advice. As the Deputy is aware there is a process with the parliamentary draftsman which must be gone through where he consults the Office of the Attorney General on all issues concerning a Bill. I am sure the office gives him advice — it may not be written advice — on what is or is not acceptable, and on what may or may not be open to constitutional challenge. I will get as much clarification as possible for Deputy Molloy and Deputy Kenneally because I understand they are only concerned with trying to make this Bill more effective.
Local authorities have to address a similar problem with regard to abandoned cars. In my area the authority operates a scheme to confiscate such cars and makes no attempt to contact the owners. In many instances there is no way of doing so. If we can dispose of motor vehicles left on the side of the road we could perhaps address this issue in this way.
I have had a number of similar experiences in the two local authorities of which I am a member. I was amused when I was told the notice was served on a car. Perhaps it could be served on a horse.
If a horse is impounded and not reclaimed it may be disposed of. Presumably if a horse is abandoned it will automatically be disposed of. Section 38 (2) (d) refers to this. It can be done under by-laws.
If it can be interpreted that a stray horse has been abandoned it would make my argument constitutional.
The horse may not be abandoned by the owner who may reclaim it. I referred to where the horse is not reclaimed. A similar procedure applies to unclaimed cars. I would reclaim my car if I knew it was in Tallaght. However, in this instance, where the owner does not reclaim the horse it is disposed of.
Amendment, by leave, withdrawn.
Section 8 agreed to.