Thursday, 2 July 2009
Dáil Eireann Debate
Section 12 of the European Arrest Warrant Act provides for the transmission of European arrest warrants and supporting documentation. Section 8 of this Bill amends section 11 of the Act to allow for the use of modern means of communication and transmission of documentation. The amendment substitutes the text of section 12(7) of the 2003 Act, which defines a “true copy” for the purposes of the Act.
The purpose of the substituted text is to simplify the procedure for certification of two copies of documents. It removes the references to the seal of the issuing judicial or central authority. These references are considered incompatible with modern means of transmission of documents provided for in the amendment to 12(3) by section 8 of the Act, which provides for the transmission of documents by any means capable of producing a written record. We discussed this on Committee Stage.
In this amendment I propose the deletion of section 10. Section 10 intends the deletion and substitution of section 13 from the 2003 Act. The original section 14 is preferable to the one proposed here and that is why I propose its deletion. Under the original provision an alert meant the document that indicates that an European arrest warrant had been issued by a judicial authority and, where the subject had not been convicted of the offence, a statement by the judicial authority confirming that a decision to charge and try the individual had been made. Under the current provision, gardaí may arrest a person on the basis of an alert, before they have an EU arrest warrant, only where they believe on reasonable grounds the person is likely to leave the State before the arrest warrant can be provided.
The substitution defines an alert as that which appears on the Schengen Information System. The express requirement that was in the previous act of judicial authorisation in the originating country and the requirement for urgency are both removed. The original section required the gardaí to inform the person arrested immediately of his or her right to consent to be surrendered. The new section removes that ability for the person. This might lead to court time being unnecessarily taken up with people who are happy to be surrendered.
The original section also provided that the High Court must direct the release of the person if the EU arrest warrant is not produced within seven days, whereas the new section has extended this to 14 days. This extension of detention is unwarranted given that the gist of the rest of the Bill is to modernise the mechanisms for communication in light of new technologies. If anything, there is less excuse for delays in the production of the necessary documentation. The increase from seven to 14 days is not warranted, given new technologies.
In general, section 10 is to have the same impact as an European arrest warrant and there is a real danger that innocent people will be deprived of their liberty for up to two weeks due to the proven inability of some law-enforcement agencies across the globe to ensure the data on their central databases is accurate and updated. Alerts may issue where arrest warrants do not exist. This section of the Bill provides that the alert on the Schengen Information System will be equivalent to an EU arrest warrant. It will give rise to automatic Garda power of arrest without warrant, and then the High Court can remand the person in custody for 14 days prior to the production of the warrant to which the alert relates. That is if a warrant exists, given the dangers of inaccurate data. The scope for error on the Schengen Information System and the implications of the errors are grave, so we must be careful where we extend the period during which we can deprive people of their liberty.
When the Schengen Information System was operating in only 13 countries, there were 125,000 access points. If it is to be extended across all member states and, potentially, across the new common security areas with the United States and others, we are talking about almost 500,000 access points. The greater the number of access points, the more people have access and the greater chance data might be lost, stolen, corrupted or whatever else. We must bear that in mind when we extend the period of detention. I propose that we delete section 10 and remain with the existing section 14 of the 2003 Act.
Deputy Dermot Ahern: I cannot accept the amendment because it would remove a provision required to give statutory effect to a Council decision. There is not much difference between the texts of this one and the existing section 14 except that in the new text a person may be remanded for a period not exceeding 14 days pending production of the warrant to the court as opposed to seven days. Already under the existing section 14 the remand can be only in custody whereas under this new section the remand, although it is for 14 days, can be in custody or in bail, at the discretion of the court. This is not excessive when one considers the type of work that needs to be carried out in the preparation of the warrant. The section contains many protections for persons arrested under its provisions. It requires that the person arrested must be brought before the court as soon as may be after arrest and that all subsequent matters should be dealt with by the High Court. It will be a matter for the High Court at its discretion to decide on the appropriate period of remand pending production of the warrant in each case and whether such remand should be in custody or on bail. Of course if the warrant is not produced to the High Court within the period specified then obviously the person must be released. Therefore, I cannot accept the amendment.
Deputy Aengus Ó Snodaigh: I find it disturbing that the Minister cannot accept the amendment. I understand what he says about it being a Council decision. However, not everything in this section is a Council decision and I do not believe the change from seven days to 14 days is a Council decision. I welcome the fact that a person can be granted bail. Why does the Minister not just change the existing seven days to be held in custody or on bail rather than increasing the potential number of days a person may be held in custody to 14? Given the new technologies available it should be possible to ensure that material required to be transferred between jurisdictions under a European arrest warrant can be supplied more quickly? As most of these arrest warrants are standardised forms which need additional details to be inserted, the process is not as complicated or as long drawn out as the Minister suggests. If an alert is made on the Schengen information system, the jurisdiction making the alert should prepare the arrest warrant at that stage so that there will be no undue delay when somebody is arrested in another jurisdiction under this facility. I will press the amendment.
Deputy Dermot Ahern: I fully accept that such a person in custody should be detained for the least amount of time possible. Section 12 of the 2003 Act requires that warrants that are not in English or Irish should be accompanied by a translation into either of those languages. Obviously there is a difficulty over a period and that is one of the reasons for extending the time to 14 days. The courts have also made it clear that the central authority should ensure that all warrants are correct in form and content and clear in the translations provided before they are presented to the court. There is a very strict undertaking. I cannot accept the amendment.
When I try to struggle with this section of the Bill again, it reminds me of the Taoiseach’s famous remark that he did not read the Lisbon treaty, for which he was somewhat unfairly pilloried given that he was involved in the negotiation of it. It is also fairly hard going to relate and cross-reference the sections that refer to my amendment. As we know Bunreacht na hÉireann endows us with the Supreme Court — a court of final appeal — having appellate jurisdiction from the High Court and the lower courts, subject to certain exceptions that are provided for in law. At the same time as the Supreme Court has that appellate jurisdiction, we in this House are gradually moving to reduce the appellate jurisdiction of the Supreme Court in specific cases. Here again we are doing precisely that.
Notwithstanding that extradition concerns very fundamental personal rights, this section limits the right of appeal to cases where either the High Court or the Attorney General allows it. That is a departure from the existing situation. At the moment either side may appeal without leave. However, this section would constrain it only to cases allowed by the High Court or authorised by the Attorney General. There is a further unfairness in the sense that the Minister for Justice, Equality and Law Reform is a party to European arrest warrant applications. It seems unfair that his colleague at the Cabinet table, the Attorney General, has the power under the legislation as framed to decide whether the Minister can appeal or whether to refuse the defendant the right to appeal as the case may be. I do not see a pressing need to limit the right of appeal as proposed.
I have looked over the earlier debates and the explanatory memorandum. As happens increasingly nowadays, the explanatory memorandum will outline matters that are not of great importance and avoid giving the substance. In this case the explanatory memorandum does not bother dealing with this point at all. I am concerned at this reduction in the appellate jurisdiction of the Supreme Court. If the Department of Justice, Equality and Law Reform believes there is a logjam in the Supreme Court on matters that it might be considered should not be in the Supreme Court, that is a matter of reviewing the structure of the Courts Service.
Let us consider the measures we have enacted recently, including the Water Services Act 2007, the Criminal Justice Act 2007, the Prisons Act 2007, the Planning and Development (Strategic Infrastructure) Act 2006, the Criminal Justice Act 2006 and the Commission to Inquire into Child Abuse (Amendment) Act 2005. We have gradually constrained or reduced the appellate jurisdiction of the Supreme Court. As I mentioned on Committee Stage in the circumstances we are discussing that could also limit the State’s freedom in certain circumstances. I reviewed what the Minister said on Committee Stage. He has not explained why he thinks it is necessary to similarly reduce the appellate jurisdiction of the Supreme Court in this case to either where the High Court allows it or the Attorney General sanctions it. This is appalling. History will view us harshly in terms of the manner in which we now make law in the Houses of the Oireachtas. The position of the Dáil as compared with the position of the Executive is being gradually eroded with more Ministers believing this House is a rubber-stamp for legislation. There were a number of weeks in this parliamentary year when the cupboard was bare in terms of legislation before this House. Currently, there are four live justice Bills on the floor of the House for completion before 10 July on which major points such as this are not being teased out or discussed.
Deputy Flanagan stated on the Order of Business that a Bill with which we will be dealing next week will inevitably find its way to the Supreme Court, and sooner rather than later. We will not have an opportunity to even debate matters in respect of that Bill that require to be teased out. I am interested to hear what the Minister has to say in regard to whether there is a general Government theory as to the type of issues that ought properly proceed to be decided by the court, which is a change in direction. If the problem is a logjam in the Supreme Court we should have an open discussion on the matter in terms of the solutions that might be on offer.
Deputy Dermot Ahern: Deputy Rabbitte referred to the role of the Attorney General in terms of certification. That provision was deleted from the Bill on Committee Stage. The point was made on Committee Stage that if the Attorney General sat at the Cabinet table it might be viewed that he had some role in this area and as such that provision was removed on Committee Stage.
The effect of the amendments would be to delete subsection 16(12) of the 2003 Act and to leave the text as is, namely, an appeal to the Supreme Court on a point of law only. I mentioned on Committee Stage that the Attorney General had advised that appeals are in many instances being lodged on frivolous and vexatious grounds for the purpose of delaying surrender. The Attorney General advised that the right of appeal should be restricted to a point of law of exceptional public importance, certified as such by the High Court where it is in the public interest to do so. As I said on Committee Stage, section 15 relates to where a warrant for surrender has been received and the person consents to surrender and subsection (9) allows a person, who has consented to surrender to withdraw his or her consent at any point prior to surrender, a right which pertains even up to the steps of the aeroplane taking him or her to the receiving country.
Operational experience has shown that the provision has been availed of on many occasions on vexatious grounds purely for the purpose of delaying surrender. The Attorney General has advised the abolition of this section and inclusion of the new section 3A, which also provides that an appeal to the Supreme Court should be on a point of law of exceptional public importance where it is in the public interest to do so. A similar provision in relation to appeals to the Supreme Court has, therefore, been included through sections 11 and 12 of this Bill in sections 15 and 16 of the European Arrest Warrant Act. Deputies do not appear to have tabled amendments to section 11.
Deputy Rabbitte referred to pressure on the Supreme Court. There is no doubt that appeals against European arrest warrants, which are in many cases lodged purely for the purpose of delaying surrender, do contribute to pressure on the Supreme Court. I make the point that following a High Court order for surrender, a person has 15 days in which to lodge an appeal. There is, therefore, no delay in surrender between the making of the order and the lodging of the appeal. However, once the appeal is lodged surrender is postponed until the Supreme Court judgment is issued. The Supreme Court prioritises appeals where the applicant is held in custody but it can take from two months, where a case is prioritised, to more than a year for a judgment to issue. Since the coming into force of the European Arrest Warrant Act 2003, 64 appeals have been lodged to the Supreme Court. I am advised that the majority of these did not deal in any shape or form with significant points of law. To date, the Supreme Court has issued judgments in 28 of these cases, only three of which were upheld with the remaining 25 being dismissed. In these cases, the majority of the grounds of appeal were repetitious. For example, a number of appeals were made on the basis that the Act was unconstitutional and that the framework decision had not been properly approved by the Oireachtas. Six appeals were withdrawn, some of them after seven months. Obviously, the persons involved benefited from the postponement of the surrender following the lodging of the appeals in these cases.
There are currently 30 appeals awaiting hearing. Some appeals lodged in 2007 and early 2008 have been waiting a year or more for hearing. No hearing date has as yet been set in respect of the majority of these cases. Given that even cases on the priority list will probably take two legal terms to get through, it is likely that the delay in hearing the majority of cases will increase with a resultant delay on surrender. We are now amending an Act only passed in 2003. It must be emphasised that this is a surrender rather than a trial for an offence, although the person will obviously have to go before a trial when he or she enters the receiving the country. I believe it is only reasonable that we allow an appeal to the Supreme Court but only as is suggested by the Attorney General, namely, that it be on an exceptional point of law when in the public interest so to do. It is for the High Court to decide on that issue when the appeal is lodged.
Deputy Aengus Ó Snodaigh: It is a pity the figures in regard to appeals was not made available to us earlier. The Minister stated that of 28 appeals heard, three were upheld, which is interesting. There is no mention, other than the Minister’s earlier reference, of vexatious cases. The Minister stated that people had benefited from the delay in surrender but I do not believe anybody benefits from a period in custody. The benefit may be that they were in custody in Ireland rather than in another jurisdiction. I have a problem with this section, which is the reason I supported the amendment.
There are people who might consent to their surrender and who, having considered the full consequences of their surrender, might on the steps of the aeroplane opt to avail of the right to appeal. In the past, under the watch of former Deputy and Minister for Justice, Equality and Law Reform, Michael McDowell, this House agreed to an increase in the number of High Court and Supreme Court judges to deal with the workload, thus ensuring no overdue delays in this area. I do not know whether the increased number of judges has resulted in a reduction in the backlog of cases to be heard. Were there no backlog, the courts would have no difficulty dealing quickly with the number of cases referred to by the Minister. Repetitious appeals could be dealt with more easily than appeals made on new points of law. I would prefer if the Minister would accept the amendment to ensure people have the right to a proper appeals process when they withdraw their consent in this instance.
Deputy Charles Flanagan: The Minister states one of the reasons for his limiting the right of appeal is that it is being used as a device to prolong the decision making process. The Minister’s point of ensuring there is no subversion of justice would be catered for under section 12(g)(13), which allows for the remand of a person in custody. If there were difficulties with vexatious or unfounded appeals that are made to frustrate the process, it would be dealt with easily by remanding the person in custody, which might meet the Minister’s concern.
The Minister looked to the matter of delay and backlog but rather than dealing with it expediently, by refusing entry to the process and debarring people an opportunity to engage in the process, he is dealing with the issue improperly. Perhaps the Minister could address the backlog by looking to the structure. There is a need for a separate division which would act as a court of civil appeal that would deal with the Supreme Court business in a way that would be fair and progressive, rather than the way he is dealing with the issue by introducing legislation that will restrict the right of appeal and debar a citizen from engaging in the process. This expediency is not in the public interest.
Deputy Dermot Ahern: We are trying to streamline the process as much as possible. Under the 2003 Act the court has an obligation to vindicate the rights of anyone before it based on the Constitution and the European Convention on Human Rights. It must take those into account.
The High Court can decide under section 12(g)(13) to remand a person in custody or on bail pending the appeal. If he is remanded in custody, he would wish to have the case dealt with as quickly as possible. There is always an obligation on the courts to hear an appeal as soon as possible. The significant workload of the Supreme Court must be looked at and Mrs. Justice Denham is working on a report on the structure of the Supreme Court.
We are where we are, however, and it is the experience that there are people who, having consented to surrender and gone through the process, as they are literally about to get on an aeroplane, lodge an appeal knowing it will delay matters further. This aspect has been used in the vast majority of cases as a device to delay the surrender. Doing that delays the decision on the innocence or guilt of the person involved so we are trying to ensure that if there is an appeal, it is a matter for the High Court to decide. We are not trying to circumscribe those with a genuine point of law from going to the Supreme Court on an exceptional matter if it is in the public interest to do so.
I have pointed to this practice of narrowing the appellate jurisdiction of the Supreme Court. It is evident in diverse legislation that has been brought in by the Minister, even where the arguments about vexatious claims or calculated delaying tactics do not apply, and we have moved in this direction in legislation over recent years. If the workload or character of some of the issues coming before the Supreme Court is such that restructuring is necessary, it should take place but we should not be passing legislation that narrows the right to appeal.
I take the point about the excision of the Attorney General, I was working on the Bill as initiated rather than as it has come through Committee Stage. That is the right step and I welcome it but people will still have to go to the High Court for a decision on the making of an appeal and that is unnecessarily restrictive.
This is a technical amendment. Section 16 amends section 33 of the Act of 2003 which deals with the issue of the European arrest warrant by a court in the State. The current text of section 33 requires the court to be satisfied that a person is not in the State before a European arrest warrant can be issued. The section is being amended to allow the court to issue a European arrest warrant once satisfied that a domestic warrant exists for a person and that a member of the Garda Síochána believes that the person may not be in the State. The purpose of this amendment is to align the text 16(d)(1)(b) of the Bill with that of 16(a)(1)(b) so that both provisions refer to the fact that the person may not be in the State.
Deputy Charles Flanagan: Perhaps the Minister might advise as to the burden of proof. In the original text there is a definite requirement that the person not be in the State. Certain levels of proof should be required. Here the belief of the garda that the person is not in the State is accepted as evidence of the person not being in the State. The Minister is reducing the burden considerably. For a garda to say he or she may not be in the State will be admissible as evidence. I would have thought a requirement to prove beyond reasonable doubt that the person was not in the State was more suitable. The Minister is watering this down in the amendment to suggest that the person may not even be in the State. I ask him to clarify the level of burden in terms of the evidence required.
Deputy Dermot Ahern: The difficulty from the point of view of the Garda is that under the existing section gardaí are required, in effect, to prove a negative, which is causing extreme difficulty for them. The current text of section 33 requires the court to be satisfied that the person is not in the State. We want to amend this to allow the court to issue a European arrest warrant once it is satisfied that a domestic warrant is in existence and a member of the Garda Síochána believes the person may not be in the State.
These amendments are to ensure that the Oireachtas Select Committee on Justice, Equality, Defence and Women’s Rights, or whichever committee is dealing with justice issues, is allowed to debate and suggest amendments to draft orders or guidelines produced by the Minister under this section.
There has been much debate about this section and some of the lobbies we have received are askew in their interpretation of this Bill. However, there are issues which are not sufficiently clear in the legislation, which means there is doubt. We are told some of the issues will be dealt with via orders or guidelines from the Minister. Rather than leaving that to the Minister, we need to ensure there is democratic accountability and that Members of the Houses, and members of the committee in particular, have a say. In this way we can ensure the points raised by those involved in gun clubs and similar are considered.
Due to the major growth in gun culture, the industry that has developed in this area has been growing so fast it is getting out of hand. However, there is an industry which employs people and has a legitimate sporting purpose and whose activities include paintballing and airsoft and so on. Some people have invested considerable amounts of money in building up businesses based on the previous rules about firearms and they believe that if they do not have some input into the guidelines their businesses and opportunities will be at risk.
Some gun lobbyists believe that all types of weapons should be legalised and that high-calibre weapons can be used for legitimate sporting purposes. Our society should not go down the road of the US in terms of gun culture. We have seen allegations in the newspapers about what has been happening in terms of the law being flouted and holes being picked in existing laws, so that we have Irish mercenaries training here and going abroad. In one case it seems a person was fatally wounded.
Gun clubs should be properly regulated and I welcome the relevant sections of the Bill in this regard. However, this needs to be kept under review. The Minister has an amendment in this regard, which is welcome to a degree, but all it does is ensure a report is obtained about the number and classes of certificates and authorisations issued under the Acts; it does not cover guidelines, orders and so on. There is no guarantee that the orders or guidelines will come before the committee before they are issued to allow the committee a suitable role in liaising with those involved in legitimate sporting activities, farming groups that might be affected, and so on. A proper committee structure should be built around this with reviews on an annual or biannual basis, or more frequently if the Minister is inclined to issue orders more often. At least then Members with an interest in this field could give advice to the Minister and suggest changes that could make his orders or guidelines more workable. That is the intention of these amendments.
Deputy Charles Flanagan: I am inclined to agree with the principle of the amendment but perhaps most of what Deputy Ó Snodaigh has said will be covered by the annual review proposed by the Minister. This debate has certainly shown that the area is extremely complex, not only in terms of legislation passed by the House but in terms of the significant number of statutory instruments attaching to the various Bills as well as the various decisions of the High Court. We have legislation of a primary nature; we have legislation of a secondary nature, by way of regulation; and we have legal principles established by litigation in the courts. There is a role for this House as the Chamber of Deputies in putting together a framework that is accessible and representative of the common good.
I did not know until recently that such things as the licence fee were decided by way of regulation at the whim of the Minister and that we do not have an opportunity, either in committee or in the House, to pass comment either way. I was surprised to learn of the varying categories of licence fee. Up to recently the cost was €66 per gun and it is now €99 per gun per year. This was introduced by way of regulation, the publication of which was minimalist. We did not have any opportunity to query, question, authorise or approve it. I ask the Minister where the money goes, because it certainly does not go towards the industry.
People who are engaged in rural and country sporting pursuits, which is a long tradition here, did not have any opportunity to make worthwhile submissions. Even where a submission is made, there is no onus on the Minister or regulatory authority to deal in any meaningful way with queries of a justifiable nature that may arise from time to time. It is an expensive business but the State has put nothing back into the sport over the years. For a rural sportsman engaged in hunting pursuits, there may well be a licensing charge of more than €500, which is a considerable sum. There is also the issue of the potential for tourism arising from hunting and sporting pursuits in rural areas. It is important that there be an arena for discussing regulations or draft orders, as referred to in the amendment, so that we have an opportunity from time to time to discuss these matters.
We are dealing with a complex and detailed area of law, and this Bill will add further to that complexity. It will be difficult for persons engaged in these pursuits and their advisers to deal in a comprehensive way with the existing legislation let alone any future changes. As the previous speaker observed, regulations can be made at the drop of a hat. This will make it difficult for people to plan for and invest in the sport. It is important that there be a measure of accountability in this regard.
Deputy Pat Rabbitte: The case for these amendments has been well made. It is very reasonable and I see no reason it should be resisted. What is proposed in these amendments is somewhat nuanced and different from the annual review promised by the Minister. We have put through much legislation in this area in recent years, a good deal of it under the chairmanship of the Acting Chairman. It would be interesting to have time to review its performance and to discover how frequently resort has been had to new measures which we were told at the time were absolutely urgent and essential. For a small country, we are becoming more centralised and bureaucratic.
There is an attachment not only in rural Ireland but among many urban dwellers to the sports to which Deputy Flanagan referred. Given that the circumstances leading to the 1972 ban no longer hang over us, there is no reason that we should not have regard to the arguments advanced. I support the reasonable case made by Deputy Ó Snodaigh for these amendments.
Deputy Dermot Ahern: We are all agreed that this is an extremely complex area of legislation. As such, the minutiae of which gun qualifies under one category or another for certification and licensing are best left to statutory instruments. Deputy Ó Snodaigh is proposing in these amendments that all such statutory instruments must be discussed in committee prior to their implementation. There would be great practical difficulties in such an approach. There are already frequent complaints from the Oireachtas Committee on Justice, Equality, Defence and Women’s Rights that there is insufficient time to examine proposals laid before it. It is one of the busiest committees in the House. I am not sure there would be great support for the proposition that every statutory instrument in this area, let alone across the broader spectrum of justice, must be discussed before being implemented.
The best solution is the one recommended by Deputy Flanagan in his amendment No. 9, which I am taking on board via my amendment No. 10. This provides for an annual review of the operation of the legislation which will provide Deputies with an opportunity to raise issues of concern to them, including the question of fees. I am not sure where Deputy Flanagan received his information regarding an apparent licence fee of €99 per year. There is no such charge. This legislation provides for a three-year licence, but for some three months running up to the renewal date, people will be able to avail of their new licence free of charge. This is being done to allow for the bedding down of the new regime and in recognition of the more than 200,000 licences already in operation. The changes will be made on a graduated basis to manage the workload. There will be one fee for the new three-year licence.
Deputy Aengus Ó Snodaigh: We should discuss amendments Nos. 9 and 10 in conjunction with amendments Nos. 7 and 8 because they are all related. I would be inclined to withdraw my amendments if I could be confident that the proposed annual review of the operation of this legislation will deal with more than just the number and classes of certificates. Such a review should also allow for examination of any issues arising from new guidelines or draft orders issued by the Minister.
I have proposed that draft orders and draft guidelines be examined in committee. Those involved in these pursuits should be allowed an opportunity to influence developments or at least to have their say in terms of what changes are coming in future. It is a complex area and it makes sense that we should take into account practical advice as to whether particular guidelines or orders will be feasible in practice. In the case of previous legislation, for example, we saw that one of the provisions, relating to refilling bullets and the use of home-made bullets, was never triggered because it was clearly impractical.
The growing popularity of activities such as paintballing and airsoft makes them a significant tourist attraction. Those operations have invested substantial sums in insuring their properties and businesses and investing in equipment. The groups I met, which I presume also lobbied other Members, were not satisfied with the time they had to prepare for these measures and to put forward their suggestions on the operation of gun licensing. The Minister has in the main produced a good Bill, but I am concerned that orders and guidelines he issues in future may not receive the detailed scrutiny they deserve before being implemented.
Deputy Dermot Ahern: The Garda Commissioner will shortly publish a 35-page document setting out guidelines on firearms licensing. Only certain issues can be addressed in the legislation and detailed background guidelines are required to ensure people fully understand its implications on a case by case basis. The guidelines were compiled by the firearms policy unit of the Garda Síochána in conjunction with the firearms consultative panel. I can send a copy of the guidelines to the Joint Committee on Justice, Equality, Defence and Women’s Rights shortly after they are published by the Garda Commissioner to give Members an opportunity to examine them.
The Bill is urgent and must be enacted in mid-July to facilitate implementation of the remaining sections of the Criminal Justice Act 2006, under which a three-year firearms licence will be introduced. Under this new legislation, provision will be made for a transition phase during which time all licences which are due to expire on 31 July will be extended. The extension will be for a minimum of three months up to a maximum of 12 months, from 1 November at the earliest until 31 July 2010 at the latest. The extensions will be assigned on a random basis to facilitate the phasing in of the new three-year firearms licence and will ensure all licences will not expire on the same date in future. On the enactment of the Bill, the Garda Commissioner will write to each licence holder and outline the period for which the licence has been extended. Given that there are approximately 230,000 such licences, this will be a major undertaking.
Deputy Ó Snodaigh made a good point. I ask the Minister to discuss the amendment with the Garda Commissioner because it will not be sufficient for the Commissioner to produce an annual review consisting of a half-page sheet produced in purely statistical format. The Commissioner’s annual review should amount to more than a chart showing a compilation of statistics. If the Minister indicates what he believes such a review will comprise, we can reach agreement on the matter. The review should debate the issues, discuss the weaknesses of the law and where further changes are required and the areas in which the Commissioner and the Minister would like to see further changes. It should not be confined to a set of statistics.
Deputy Dermot Ahern: I concur with the Deputy and will ensure, in consultation with the Garda Commissioner, that a comprehensive review will carried out and a comprehensive report made available to the Oireachtas. Clearly, such a report will include a significant amount of statistical information, given the number of firearms in circulation. I take on board the Deputy’s suggestion and will make his views known to the Garda.
Deputy Pat Rabbitte: I support the amendment and welcome the Minister’s response to it. I propose to cite an example to highlight the effects of these provisions. The Minister or his officials will have received a torrent of correspondence from those engaged in the airsoft sport. I did not know what the sport entailed, but its representatives explained it to me in their own terms when they visited me. They are terrified by sections 9G and 9H which I suspect we will not reach. These sections essentially provide that, on the word of the Garda Commissioner, sales of certain realistic initiation firearms would be restricted from a specified date. The representative groups argue that if there is a sudden outbreak of public frenzy, as occurs from time to time, and pressure were to be exerted on the Minister to shut down the airsoft sport, it would have calamitous implications for those who earn their living from the airsoft sport because of the significant time lag between the importation of these types of firearms and their sale and disposal in this jurisdiction. They could be left with an expensive consignment on the high seas if the sport were to be shut down, as the representatives graphically put it, after one Joe Duffy show. Can the Minister give any assurance to the people concerned? While the Bill provides for an annual review, does the Minister envisage circumstances in which the fear of this group would be realised and the sport shut down on a whim, leaving them holding the baby, so to speak, or does he regard this fear as a misapprehension and without foundation? I am informed airsoft is a growing sport.
Deputy Dermot Ahern: An amendment has not been tabled on this issue. It is necessary to include the relevant provisions because the number of those engaged in airsoft has dramatically increased, as have the numbers and types of airsoft guns. It is not uncommon for people to have weaponry which, to all intents and purposes, are imitation weapons. While I accept that people use these weapons in a sport, if this weaponry proliferates to the extent that it is readily available throughout the country, the security forces will have justifiable concerns. In a combat scenario, for example, a bank robbery, it will be difficult to ascertain whether a gun is a real or imitation weapon.
The power to which the Deputy referred is necessary to ensure that if the position gets out of hand, the legislation may be applied in such a way as to ensure restrictions are imposed on the sale of the weapons in question. In a recent well publicised incident in my constituency children were using these types of guns to shoot and maim dogs.
There is anecdotal evidence that some of these imitation weapons are being adapted with stronger spring mechanisms which could inflict serious or lethal injuries on animals or people. Considerable attention will be paid to this area for the simple reason that restrictions are needed to ensure these weapons are used solely for sporting purposes. In light of the strong advice I have received from gardaí and my officials, as well as the anecdotal evidence presented by a number of Deputies, we should proceed carefully.
I would welcome annual reviews of the legislation because I do not doubt other Members share my unease at the increasing number of these weapons. One would need to be an expert to recognise some of them as imitations rather than real weapons.
Deputy Aengus Ó Snodaigh: There are practical ways for dealing with some of the issues raised by the Minister. A regime could be put in place for the forensic testing of guns. By making annual or triannual tests a condition for licence renewals, one could determine whether a gun has been adapted. A regulation could be introduced requiring imitation firearms, and airsoft guns in particular, to be painted a different colour from genuine firearms. They could, for example, be painted pink or blue. If the guidelines or the draft orders were brought before us, we would be able to discuss these issues. GPS tracking systems could be installed in guns, although practical difficulties arise with some types of weapon. These measures could at least prevent weapons from falling into the hands of children. Airsoft and paintball guns could carry the same restrictions as other weapons in terms of secure storage.
We need to take on board the concerns expressed by those who have invested in the industry while also being mindful of the dangers to which the Minister referred. Several of my constituents who are involved in airsoft activities have spoken to me about people who have invested substantial amounts of money because they were not aware of the restrictions being introduced in this Bill. Perhaps they should have investigated further, however.
I welcome these amendments but I want to ensure that the annual reports laid before the House are discussed by the Committee on Justice, Equality, Defence and Women’s Rights. Many reports are simply sent to the Oireachtas Library without receiving the discussion they deserve. Interested parties would be able to make submissions to the committee in advance of a review.
Deputy Dermot Ahern: I have nothing further to say other than to agree with Deputy Charles Flanagan that the review should include more than simple facts and figures. It should touch on compliance and trends of the types of weapons being licensed. The committee should be given the opportunity to decide whether it wishes to discuss the report.
Members will recall our debate on Committee Stage regarding the Minister’s intention to ban handguns. Amendment No. 11 would preserve the ability to hold a handgun or other firearm used for legitimate and controlled sporting purposes. Since our Committee Stage deliberations, I received correspondence from the president of the world governing body of IPSC which arises specifically out of comments made by the Minister. The president states:
I wanted read that letter in the context of the debate. Having regard to the fact that our debating time is unduly restricted, we may not have the opportunity to engage in the type of detail that is necessary in dealing with this issue. I say that as someone who does not have any experience in this area of sporting pursuit. I do not believe there is any large gulf between what the Minister is trying to do and what Members would wish him to do in this respect. I plead with him, however, not to be so restrictive in his regulations as to ban sporting pursuits that have not only been pursued here but are internationally accepted as sports and involve international competitions of some repute. I am anxious to promote the amendment and trust that whatever regulations the Minister intends to introduce, as he has indicated he will, there will be an exemption or exception in respect of legitimate sporting pursuits of a controlled nature.
Deputy Pat Rabbitte: I am minded to support Deputy Charles Flanagan’s amendment. Amendment No. 12 in my name is framed differently and is aimed at roughly the same purpose. We have a big problem with guns in our society. We have seen an increase in the number of unlawful killings with people being murdered as a result of gangland feuding, which is profoundly disturbing. We have even seen innocent bystanders being caught up in the mayhem that is going on in gangland crime. They lost their lives even though they had no association with the criminal fraternity.
I do not envy the Minister’s task in seeking to provide for the safety of our citizens. It seems to me, however, that the outright ban on practice shooting is a different issue. We have a problem with guns in Ireland, but it is one that concerns illegal firearms. It would appear that there is no great difficulty in importing guns illegally into this jurisdiction. In addition, there is no great impediment for the criminal fraternity to access illegal guns. I wonder therefore if the appropriate reaction to that problem is to clamp down on sporting handguns and sporting clubs, effectively putting a certain kind of sporting endeavour out of business.
Deputy Charles Flanagan put that letter on the record, but the Minister will know that we received a detailed document, which I presume he also got, rebutting claims and assertions by the Minister on the last occasion. The document goes through the matter in great detail. It is immensely regrettable that we do not have sufficient time to deal with this legislation. Although we are only dealing with an early section of the Bill, it looks like this will be the last amendment to be debated. I do not have time to go into the document we received, which challenges assertions made by the Minister. It also challenges some of the opinions on which the Minister relied on the last occasion.
Why is the Minister so focused on this objective in the Bill? I listened carefully to what he said on Committee Stage. I also listened to the interaction in the House, yet I am still somewhat in the dark as to why this has such a high priority for the Minister. The only conclusion I can come to is not that these clubs are not strictly and rigorously supervised, regulated and licensed, and that great care is taken with the weapons, but that the Minister fears some people may be taken aboard by some of these clubs who will use them for training purposes and will subsequently use the skills garnered for nefarious purposes. That is the best shot I have been able to make at what we are talking about. A fair amount of opaque language has been used, as well as dramatic assertions and reliance on the opinion of people in other related sports criticising this one. The impression I have formed is that the Minister fears a person could join one of these clubs and become skilled in the use of firearms and subsequently use those skills for anti-societal purposes. If that is so, I share the Minister’s concern, and I acknowledge why he would be thus concerned. That is why I have framed my amendments the way I have, to leave the Minister the power in making regulations to ensure that in the matter of vetting prospective members of such clubs, the necessary care is taken so that kind of person is not granted admission. That is a more reasonable approach than taking the drastic action of shutting down entirely the particular sport that has been at the sharp edge of the debate on this section.
Deputy Billy Timmins: Perhaps the Minister has changed his view. Many members of the public and of this House believe the Minister’s measure is good because there is a public perception that it is a good measure, but it is not a good measure. Satisfying public perception should not be a basis for public policy. The proposal put forward by the Minister targets legitimate users of firearms, rather than criminals. We have a case where a scumbag murders a completely innocent individual, and all of a sudden several thousand innocent people are penalised. I challenge the Minister to provide any research that shows a correlation between the increase in legitimately held hand guns and any increase in their use in crime.
There is much research from those in favour and those against gun use. They can paint whatever picture they want, but it is important that the Minister produces research to show that there is a correlation. I do not believe there is. The real reason for crime and the use of guns in crime is social deprivation. Bringing in such a measure will not only not address the problem, it will assist in distorting the reasons we have crime. The public perception will be that we have taken a measure that will assist in dealing with crime, even though we have not addressed the social deprivation issues. We would be far better off if we talked about putting in additional classroom assistants to address the issue of dyslexia, rather than banning hand guns. This decision is wrong and I hope the Minister has the courage to reverse it. When guns were banned after the Dunblane massacre in Scotland, the use of handguns in crime increased over the next few years.
Deputy Dermot Ahern: We had no legalised handguns here until 2004. The former Minister for Justice, Des O’Malley, banned hand guns in the early 1970s, so there were no legalised hand guns here for more than 30 years. As a result of a series of High Court decisions, the number of hand guns increased since 2004 to about 1,800 today. The decision in 2004 centred around the suitability of the person rather than the suitability of the gun. The judgment given in the case meant that if Deputy Timmins got a licence and was found to be a suitable person to carry a firearm, he would be entitled to have a small pistol, an AK 47, a Biretta, a Magnum or a Glock.
We had to do something about this. Judge Charelton stated in a case that it may be that the proliferation of pistols and high calibre rifles has not been noticed and that no general policy of permission for the private use or possession of hand guns is being pursued. He went on to state that a reasonable person would be entitled to feel alarmed at the increase in the number of handguns. I took my lead from that. I did not make the connection between illegal handguns and crime with what I am endeavouring to do, which is responding to the direction given by a High Court judge. God forbid, if something like that which occurred in Dunblane happened here and we had done nothing about it having been warned by Judge Peter Charelton, then we would have had to answer why we did nothing to respond to a High Court decision on a challenge against the licensing regime at that time.
I accept that 99.9% of the people who carry firearms here are excellent people. We have been very lucky with the people we have in the gun clubs here, and I have been assured by the Garda Síochána and by my staff, who have experience in this area. Unfortunately, in recent years since 2004 there has been a desire to bring legalised hand guns into this country. I have asked the Garda Commissioner and every senior garda whether this is the right way to go and whether we should allow hand guns. They all say “absolutely not”. One of the main reasons is due to ease of concealment of these hand guns.
When there are 1,800 licences here, we obviously have to address that. This legislation will allow people to continue to have a licence for a hand gun, but on a much more restricted basis. It will exclude quite a number of existing hand guns that people legally possess at the moment. Many of them have Glock pistols, Magnums and other guns that would never be included in sport, no matter how sport is defined.
The effect of what the Deputies are trying to do is to legalise practical shooting. The definition of practical shooting, according to the US Practical Shooting Association, is that “shooters take on obstacle-laden shooting courses — called stages — requiring anywhere from six to 30 plus shots to complete. The scoring system measures points scored per second, then weights the score to compensate for the number of shots fired.” Somebody here referred to extreme sport, and the USPSA states “If shooting has an “extreme” sport.... practical shooting is it.”
I know that Deputies have been inundated with representations since I originally stated that it was my intention to severely curtail hand guns. To be fair to organisations that had difficulties with this legislation, they have made it quite clear that they do not wish to have practical shooting or dynamic shooting, which effectively mimics combat. They do not want to have this in the country. Des Crofton is the director of the National Association of Regional Game Councils, representing 28,000 gun licence holders in the country. We asked for the association’s view on practical shooting, and he sent a letter to us on 25 June and it stated the following:
Under this legislation, the State will take over the process of certifying and insuring shooting ranges. The State Claims Agency has been asked to give its view in this regard. It has stated that on no account should the State be involved in any way in indemnifying any range which participates in practical shooting. On Committee Stage I read the opinion the assistant commissioner, Mr. Walter Rice, had given on practical shooting and it is important to do so again in order that people will be under no illusion about what we are talking. He said practical pistol shooting or new activities which mimiced combat or confrontational shooting scenarios were developed as a more realistic training method for military and police personnel and that shooting at human shaped targets would not be considered as legitimate firearm use or possession. Therefore, if engaging in such practice was considered as a legitimate reason for possessing or using weapons, there would be concerns that this type of shooting could be seen as a way of training individuals in the use of these weapons with a view to engaging in criminal actions. He went on to recommend that practical shooting which clearly could be compared to combat shooting, not target shooting, be removed and banned as this type of training in weapons use was not legitimate and could be utilised by criminal elements. I cannot add further to this.
I came at this issue afresh. It is not a sport in which I wish to participate. Deputies in the House probably do not realise what is happening in practical shooting. While people would have been brought to some ranges, they would not have engaged in the practical shooting at issue here.
The International Practical Shooting Confederation was mentioned. The Department has monitored with concern the development of the IPSC which organises competitions in which people shoot their way through multi-stage target courses based on real life combat scenarios. From a cursory look at the Internet one will see that these activities are marketed as being at the extreme end of handgun sport.
The Garda Síochána and the reputable representative bodies of those engaged in firearm shooting, including handgun shooting, are against this. The Deputies in the House perhaps do not realise what is involved. I have heard the argument that it is a sport; it is not. The evidence our people and the Garda have received about what has been going on in a number of practical shooting ranges indicates that it amounts to nothing other than a mimicking of combat style shooting. I strongly urge Deputy Flanagan to desist from pressing the amendment.
Deputy Seymour Crawford: Like the Minister, I live close to the Border and for long enough we knew what was happening with illegal guns and so on. The difficulty I have is that the guns about which we are talking have been licensed. While the Minister has given some explanation of his knowledge of and anxiety about this matter, the difficulty I have is that very little is done about the guns which are held illegally. Only last week the Ulster Bank branch in Cootehill was raided and some of my best friends were held up.
I refer to the drugs brought into the country. Guns are brought in with them. I hope the Minister will take an active a role in ensuring these guns are dealt with. We heard one of his predecessors, former Deputy Michael McDowell, talk about a gun amnesty, a condition of which was that one had to say what was done with the gun and from where it had come. If we want to control guns, this is a strange way to go about it.
Deputy Charles Flanagan: On Committee Stage the Minister misrepresented the position. He spoke about firearms being purchased on the Internet. He knows purchase of firearms on the Internet is impossible under current legislation. A firearm cannot be legally imported----
Deputy Charles Flanagan: ——by an individual without a licence. Instead of an outright ban, I suggest the Minister introduce a capped number of licences which could be monitored and reviewed each year in line with the amendment we considered earlier.
The outright ban on bull’s eye shooting as a legitimate target sport is over-restrictive and an over-reaction. The Minister is using the argument about extreme sports and the darker side without adducing sufficient evidence to bolster his claim. In so doing, he is denying legitimate static target shooting enthusiasts an opportunity to continue the sport which is accepted internationally.
I regret we do not have sufficient time left, as this is an important amendment. Representations were made to many Government back benchers whom I would like to give an opportunity to pass through the lobbies on the issue.
Deputy Dermot Ahern: People lobbied the Deputy, as they did Members on my side of the House with whom I had a good conversation the other night. When I explained the reality of dynamic practical shooting, they fully accepted the position. It is as I said and nothing else. As people knew this legislation was coming up, they tended to ease off. There is a desire to operate on that basis and I cannot concede on the issue. As I said, I do not wish to move against those persons who are genuine in their participation in a sport, not something which, in certain circumstances, is operated as a business in terms of training in the use of very serious weapons. I suggest Deputy Flanagan does not understand what is involved and is taking on board exactly what people are telling him.
|Allen, Bernard.||Bannon, James.|
|Barrett, Seán.||Breen, Pat.|
|Broughan, Thomas P.||Bruton, Richard.|
|Burke, Ulick.||Burton, Joan.|
|Byrne, Catherine.||Carey, Joe.|
|Clune, Deirdre.||Connaughton, Paul.|
|Coonan, Noel J.||Costello, Joe.|
|Coveney, Simon.||Crawford, Seymour.|
|Creed, Michael.||Creighton, Lucinda.|
|D’Arcy, Michael.||Deasy, John.|
|Deenihan, Jimmy.||Doyle, Andrew.|
|Durkan, Bernard J.||English, Damien.|
|Enright, Olwyn.||Feighan, Frank.|
|Flanagan, Charles.||Flanagan, Terence.|
|Gilmore, Eamon.||Hayes, Brian.|
|Hayes, Tom.||Higgins, Michael D.|
|Lee, George.||Lynch, Ciarán.|
|Lynch, Kathleen.||McCormack, Pádraic.|
|McEntee, Shane.||McGinley, Dinny.|
|McGrath, Finian.||McHugh, Joe.|
|McManus, Liz.||Naughten, Denis.|
|Neville, Dan.||O’Donnell, Kieran.|
|O’Dowd, Fergus.||O’Mahony, John.|
|O’Shea, Brian.||O’Sullivan, Jan.|
|Penrose, Willie.||Quinn, Ruairí.|
|Rabbitte, Pat.||Reilly, James.|
|Sheahan, Tom.||Sheehan, P. J.|
|Sherlock, Seán.||Shortall, Róisín.|
|Stagg, Emmet.||Stanton, David.|
|Timmins, Billy.||Tuffy, Joanna.|
|Upton, Mary.||Varadkar, Leo.|
|Ahern, Dermot.||Ahern, Michael.|
|Ahern, Noel.||Andrews, Chris.|
|Ardagh, Seán.||Aylward, Bobby.|
|Blaney, Niall.||Brady, Áine.|
|Brady, Cyprian.||Brady, Johnny.|
|Browne, John.||Byrne, Thomas.|
|Calleary, Dara.||Carey, Pat.|
|Collins, Niall.||Conlon, Margaret.|
|Connick, Seán.||Cregan, John.|
|Cuffe, Ciarán.||Cullen, Martin.|
|Curran, John.||Dempsey, Noel.|
|Devins, Jimmy.||Dooley, Timmy.|
|Finneran, Michael.||Fitzpatrick, Michael.|
|Fleming, Seán.||Flynn, Beverley.|
|Gogarty, Paul.||Gormley, John.|
|Grealish, Noel.||Hanafin, Mary.|
|Harney, Mary.||Haughey, Seán.|
|Hoctor, Máire.||Kelleher, Billy.|
|Kelly, Peter.||Kenneally, Brendan.|
|Kennedy, Michael.||Killeen, Tony.|
|Kirk, Seamus.||Kitt, Michael P.|
|Kitt, Tom.||Lenihan, Brian.|
|Lenihan, Conor.||Lowry, Michael.|
|McEllistrim, Thomas.||McGrath, Mattie.|
|McGrath, Michael.||McGuinness, John.|
|Mansergh, Martin.||Martin, Micheál.|
|Moloney, John.||Moynihan, Michael.|
|Mulcahy, Michael.||Nolan, M. J.|
|Ó Cuív, Éamon.||Ó Fearghaíl, Seán.|
|O’Brien, Darragh.||O’Connor, Charlie.|
|O’Dea, Willie.||O’Flynn, Noel.|
|O’Hanlon, Rory.||O’Keeffe, Batt.|
|O’Keeffe, Edward.||O’Rourke, Mary.|
|O’Sullivan, Christy.||Power, Peter.|
|Power, Seán.||Roche, Dick.|
|Ryan, Eamon.||Sargent, Trevor.|
|Scanlon, Eamon.||Treacy, Noel.|
|Wallace, Mary.||White, Mary Alexandra.|
An Leas-Cheann Comhairle: As it is now 2 p.m., I am now required to put the following question in accordance with an order of the Dáil of this day: “That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of, including those in respect of which recommittal would in the normal course be required, are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed.”
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