Seanad Éireann - Volume 176 - 01 April, 2004

Private Security Services Bill 2001: Report and Final Stages.

[131]  An Cathaoirleach: As has been explained to the Senators involved, because of the unusual circumstances applying I have allowed amendments which were not substantially discussed on Committee Stage to be retabled on Report Stage. I emphasise that this will not be a precedent for future proceedings.

I remind Senators that a Senator may speak only once on Report Stage except for the proposer of an amendment, who may reply to the discussion on the amendment. Each amendment must also be seconded.

  Ms Terry: I move amendment No. 1:

In page 7, lines 24 to 26, to delete all words from and including “but” to “service”.

I thank the Cathaoirleach for his ruling which allows me to re-table this amendment. Due to leaving the Chamber for a few seconds yesterday I was unable to move it on Committee Stage.

I received an explanation yesterday from a member of the Minister’s staff but I wanted to move the amendment to clarify the issue. This amendment is in the interest of ensuring that we are precise about the definition of a supervisor and the remuneration that person would get for his or her work. I want to ensure that the remuneration of a door supervisor would not include drink for the night or take-home drink. Remuneration should be confined to pay or, at the end of the night, refreshment in the form of a drink. However, a person should not be supplied with drink for the night while on duty.

  Ms Tuffy: I second the amendment.

  Mr. M. McDowell: The definitions of various kinds of security service in section 2, for example, door supervisor, security guard and the like, are confined to those who provide the service for remuneration. That term was specifically included in the definition in order to exempt from the licensing requirement volunteers who might be helping out with security duties at a local show or festival, or perhaps assisting with crowd control at a sporting fixture or pilgrimage. In the select committee discussions on Committee Stage, concern was expressed that the use of the term could inadvertently open the way towards payment in kind by means of, for example, a television, holiday vouchers etc. I took these genuine concerns on board and brought forward an amendment in the form of a definition of remuneration. The definition includes a benefit-in-kind but excludes a meal or refreshment. It is reasonable to exclude from the definition of remuneration, a meal or refreshment provided in accordance with the security service. Otherwise [132]those who willingly volunteer to provide a service at local events would be prevented from accepting food or refreshments from the organisers of such an event unless they held a licence. I think that would be excessive and mean spirited by any standards. I am not willing, therefore, to accept the amendment.

The issue of whether somebody providing a security service should be permitted to consume alcohol while providing that service is separate. This could, if necessary, be dealt with by the authority in regulations under section 51 concerning standards to be observed by categories of licensees in the provision of security services. I believe it would be appropriate for the authority to do so because, as Senator Terry said, it would be a sad thing if people acted as doormen in exchange for a rake of pints, which would result in the quality of their service deteriorating during the course of an evening. The spirit of what Senator Terry proposes is, effectively, capable of being dealt with under section 51. There is provision in the legislation for achieving the end with which her amendment proposed to deal. It would be appropriate in those circumstances to leave it to the authority to use section 51 to arrive at the same result.

  Ms Terry: I thank the Minister and accept what he has said. Can we be sure the authority will do that? Does the Minister issue guidelines to it as to the type of regulations required and would this be one of them?

  Mr. M. McDowell: I can undertake to the Senator that, in addition to my views, I will draw to the attention of the authority the views of the House. It would be wrong to allow people to operate these services while consuming alcohol and doubly wrong for a person for whom such a service is being provided to give alcohol to security staff.

Amendment, by leave, withdrawn.

  Ms Tuffy: I move amendment No. 2:

In page 11, to delete lines 29 to 32 and substitute the following:

“(7) At least 40 per cent of the members of the Authority (and of the Appeal Board or an advisory committee) shall be men and at least 40 per cent shall be women.”.

The Labour Party has tabled this amendment as we consider subsection (7) to be too weak. I am not sure what its effect would be if the Minister is to have regard to the extent to which each sex is represented in its membership. Would it be sufficient to have a person of each gender on the board? It is my understanding that it is Government policy to try and achieve a minimum of 40% of either gender, which is not the case at [133]present if one looks at the figures for various State boards. Why does the Minister not make the provision clear-cut by specifying 40%?

I am not in favour of gender quotas when it comes to the electoral process, because people have to choose to put themselves forward. However, I favour them in the case of boards where a person has the power to appoint people. It is important that this type of requirement is in place. Perhaps in future it will be required to ensure men are adequately represented, but at present there are not enough women on State boards. There may even be cases where the balance goes the other way. We should also do something about that. The legislation is balanced equally between favouring men and women being represented on different bodies. That is a general principle which should also be applied in many other areas of life. We should be careful to ensure that both genders get to participate equally in different areas of life. It is possible for the Government to do this. It is supposed to be an objective of the State. Why does the Minister not spell it out fully and properly in the legislation? This would ensure that both he and the boards will comply, as well as those who put forward nominations to the boards.

  Ms Terry: I second the amendment.

  Mr. J. Walsh: I agree with the thrust of what Senator Tuffy said. It is important that gender balance is achieved on all boards. It is Government policy and it has been the policy of successive Governments to try and achieve that. We are specifically aiming at having greater involvement of women. However, I am not convinced that a prescriptive 40% is the best approach to the matter. It will work better as an aspirational target. There are some areas where it is more difficult to achieve balance. It is important that those who are appointed have the expertise to fulfil the functions and responsibilities they are given, but I accept that there should be a bias in favour of ensuring a greater participation of women on these boards. The ideal would be to achieve a 50:50 balance. While boards may vary according to their nature and function, people wish to see greater female participation. However, I do not agree that we should prescribe the percentage.

  Mr. M. McDowell: The Government’s policy is that at least 40% of State board members should be women and at least 40% should be men. There is no disagreement on that issue in terms of policy. The question we need to ask is if the present policy of the Government should be incorporated in rigid formula in any particular statute.

In this case, we are dealing with a small authority of ten members plus a staff representative. The body should be representative of various [134]interests as provided for in section 8(2). A situation could arise where a good combination of people representing the relevant interests and with the relevant expertise has been identified and the Minister would wish to appoint a board with more than 60% female or male members.

I consider that a rigid formula would be too inflexible. The Government’s approach to this is correct. In making appointments to the authority, which is provided for in subsection (7), the Minister shall have regard to the extent of which each sex is represented in its membership and shall ensure that an appropriate balance is maintained in this respect.

This was extensively debated on Committee and Report Stages in the Dáil, particularly on Report Stage. The debate gave rise to a few interesting points. Let us suppose that the 60:40 mark had been achieved and the staff representative of the board resigned for whatever reason. To say to the staff that it can only lawfully appoint a man or woman, as the case may be, is a bit tough. They may have somebody they really want to appoint and since it would only be for a short period of time until the authority would next be selected in toto, this would prevent a free choice of candidate in one particular circumstance. Various other scenarios occur to me which I will not go into now as I discussed the matter at great length in the Dáil on Report Stage. The appropriate thing to do is provide for a general obligation of the kind set out in section 7(7) and to leave it to the Minister of the day to achieve that.

Deputies Costello, Deasy and Ó Snodaigh dilated far and wide on this matter in the Dáil. I reminded some parties in the Dáil which are not represented in this House that since they had no women among their Members in the Dáil, they were in a poor position to lecture me on the subject.

The House should be aware of the following figures in regard to State boards. Currently, as a total percentage of serving membership women constitute 30%. Women represent 36% of serving Government ministerial nominees, and the figure is 40% in the case of the Department of Justice, Equality and Law Reform. We have achieved that percentage in regard to the appointments I make. The difference between the two sets of figures is interesting because it is 30% of total board membership and 36% of total Government nominees. This indicates that it is the non-governmental organisations which have the most to achieve, not the Government. It should be taken on board that non-governmental organisations are lagging behind most in achieving balance in their nominations. To remedy this — I said this on Report Stage in the Dáil — I am considering asking all the nominating bodies that put up short lists of people to put up a gender balance list so that I [135]can achieve adequate gender balance rather than having to do all the compensating myself when others have failed to do so.

On the question of women as a percentage of the total number of chairpersons, 18% is the total across Government, which is disappointing. In the Department of Justice, Equality and Law Reform, 45% of chairpersons are women. This indicates, as one would expect, that the Department is well advanced in the matter. The rigid formula is too prescriptive and could in certain circumstances tell the staff association it cannot produce a male or female candidate because I cannot make that appointment. It would be better to leave it as currently drafted. I will give an undertaking to this House, as I did in the Dáil, that Members will be surprised by the amount of equality achieved on foot of the Government’s approach.

  Ms Tuffy: I thank the Minister for his statistics. If there is a problem with NGOs, surely this would give him the power to say to them that they must be balanced. The Bill should be definitive in that regard. How many State boards comprise more than 60% of women or have the freedom to have that percentage?

Amendment, by leave, withdrawn.

  Ms Tuffy: I move amendment No. 3:

In page 15, to delete lines 13 to 17.

  Ms Terry: I second the amendment.

  Ms Tuffy: The reason it is proposed to delete subsection (5) is that it may be constitutionally dubious, first, because of the reversal of the burden of proof contemplated by the section in a criminal matter and, second, because of the recent High Court ruling in the bin tax case regarding the need to show that contempt was committed intentionally. The wording states that something may be treated for all purposes as if it were a contempt in the face of the court. Contempt of the court is contempt in the face of the court. What the legislation describes is not contempt in the face of the court, which means misbehaving in the courtroom. The legislation is trying to create something which does not exist and for this reason it should be deleted.

  Mr. M. McDowell: The section deals with an important function of the proposed authority, that is, investigation of security services on its own initiative. Subsection (4) of the Bill provides that if a person does not comply or comply fully with the request by the authority, the authority may apply to the District Court for an order requiring compliance by the person concerned within a specified period. Subsection (5) provides [136]that in the event of non-compliance, the authority may apply to the court and, if it appears to the court that the person concerned has, without a reasonable excuse, failed to comply or comply fully with the order, the court may treat it as a contempt of court.

Senator Tuffy said that either it is a contempt of court or it is not a contempt of court. As the Senator will be aware, the canons of construction require that every section be given a constitutional meaning, if possible. It appears that a constitutional interpretation of this is that if the authority applies to the District Court, and if the District Court is to deal with the matter constitutionally, it would have to inquire of that person before it dealt with them as a contemnor. It would have to give people an opportunity to explain themselves and argue, for instance, that any failure to comply with an order was reasonably based or something which was not within their capacity to do. As courts are bound to administer justice under the Constitution, that standard would be applied by operation of law and by constitutional doctrine to the application of this section. It appears unlikely that anyone would be dealt with other than entirely fairly and in circumstances wherein they would be given an opportunity to explain themselves and argue their point. After all of that, the court would have to say this is wilful breach of a lawful direction without a proper lawful excuse. In those circumstances only, we would punish that as though it were wilful breach of an order of this court. I do not see anything unconstitutional about that. I know there was case law to the effect that certificates of bodies where people had not complied with orders were regarded as prima facie contempt, which was regarded by the courts as dubious. I accept that if we were trying it here it would be a dubious thing. However, this is a different situation. A jurisdiction is effectively conferred on the District Court, which must proceed on evidence and on the basis of natural and constitutional justice. That jurisdiction confers on the District Court the ultimate right to say that a person who is failing to comply with the direction in regard to an inquiry is to be treated in the same way as if he or she had been guilty of disobeying the District Court order. This is a reasonable and practical way of dealing with the issue.

The alternative is to say these people are guilty of a criminal offence. That would mean that unless one went through the criminal process, one could not force one to comply with the reasonable requests necessary to keep an investigation going. In some cases, perhaps it would involve people delaying the whole procedure by simply pleading not guilty or whatever, and having a trial at a later stage. Given the constitutional principles of construction that apply and the fact that the [137]Constitution enjoins upon the District Court an obligation to proceed in accordance with natural and constitutional justice and in accordance with constitutional norms, there is no danger of the kind outlined by Senator Tuffy.

Amendment, by leave, withdrawn.

  Ms Terry: I move amendment No. 4:

In page 16, lines 44 and 45, after “other information” to insert, “, including any information necessary to enable him or her to furnish a parliamentary reply”.

  Ms Tuffy: I second the amendment.

  Ms Terry: I request the Minister to accept the amendment in order to ensure the Government of the day is accountable. It will ensure that when Deputies or Senators request information the Minister will be in a position to provide them with the information without having to refer it to the authority. In the case of other State agencies, replies must be sent to them. This will make the Government accountable. It is a simple amendment and if the Minister is not prepared to accept it today, will he give us an assurance that he will answer questions about the operation and functions of the authority when he is asked them?

  Mr. M. McDowell: The existing wording of section 16(5) is sufficient when it states that the authority shall give to the Minister such other information regarding performance as he or she may from time to time require. That is a broad and unqualified right that includes information for the purpose of debate and answering parliamentary questions.

There are certain functions when the statute provides that the authority is independent and the Minister cannot be accountable for those any more than the Tánaiste would be accountable for the decisions of the Employment Appeals Tribunal. There are certain decisions which, if the authority is to be independent, cannot be issues of accountability.

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There are, however, subjects where the Minister of the day should be accountable. I explained to Deputy Deasy in the Dáil that the old fashioned notion that because a body was outside the remit of a Minister, it should not be the subject of parliamentary questions because he is only responsible for his own Department is not sustainable. If a Minister has the right to ask for information, and is responsible for overall policy, he cannot escape parliamentary accountability by pointing out that the body is a distinct legal agency. The implication of that would be that the more agencies we create, the narrower the focus of parliamentary accountability. That may have been convenient to Ministers of all sides in the past, but it is contrary to the spirit of the [138]Constitution that the Government should narrow the obligations imposed on it by hiving off areas of responsibility to separate legal bodies. There is also a provision in law for the members of the authority to appear before committees and no Minister should refuse to answer a question where the information for a reply is readily available, especially under statutory powers.

Amendment, by leave, withdrawn.

  Ms Tuffy: I move amendment No. 5:

In page 18, between lines 29 and 30, to insert the following:

“(4) Reference to this section is inserted in Part I of the Third Schedule to the Freedom of Information Act 1997.”.

This amendment would ensure that giving information under the section will not interfere with the disclosure of documents under the Freedom of Information Act. This was discussed in the Dáil but we do not agree that disclosure would automatically apply the Freedom of Information Act to the authority.

  Ms Terry: I second the amendment.

  Mr. M. McDowell: This matter was debated at length in the Dáil. The Freedom of Information Act provides for the extension of the Act to various bodies and states that it is a matter for the Minister for Finance, who is charged by law with this function. A decision on the application of the Act will have to be taken in accordance with normal procedures and I see no reason to depart from established procedures in this case.

The Freedom of Information Act will have to be carefully applied when that happens because data in possession of the authority will consist of information on convictions, proceedings pending against applicants, sensitive information supplied to the gardaí or others on criminal convictions or alleged criminal links and sensitive information that might have a bearing on State security, such as paramilitary involvement in the private security industry. One must tread carefully in all those areas and I prefer that the ordinary process envisaged by the Freedom of Information Act would be followed rather than making a decision on this matter today that might have a negative effect.

Amendment, by leave, withdrawn.

  Ms Tuffy: I move amendment No. 6:

In page 19, between lines 27 and 28, to insert the following:

“(a) evidence that notice of the intention to make the application has been published in a newspaper circulating in the State in the prescribed form,”.

[139]I raised this issue on Second Stage and the Minister said it would cause difficulties if every door man had to advertise in a newspaper but we think nothing of requiring people who apply for planning permission to do it. We could do it in such a way that it would not be costly, with a nominal fee. It is important, however, that there is accountability in the applications. The public have an interest in the granting of licences because those who get them will enjoy significant powers and financial gain. The public should have a right of objection.

  Ms Terry: I second the amendment.

  Mr. M. McDowell: Section 21 already makes extensive provision for the supply of information on an applicant’s character, competence and financial situation and the verification by affidavit or otherwise of such information. A Garda certificate can also be demanded under section 21(3), while under section 34 the gardaí may be requested by the authority to supply further information. Where a licence is granted, the provisions of section 26 and 39 will permit the authority to investigate complaints and, if necessary to protect the public, to suspend the licence for the duration of the investigation. Given those procedures and safeguards, the question to be asked is if requiring applicants to advertise their intention to apply for a licence would be justified and effective. There are sufficient safeguards in the Bill as it stands.

There would also be practical difficulties with an advertisement requirement along the lines set out in the amendment. Checking that each application had been advertised properly would create additional work for the authority without any guarantee of effectiveness. Such a requirement would encourage those with something to hide to advertise in local newspapers in other parts of the State or in a manner that would not attract attention. Transparency would best be achieved by the authority deciding to post on its website details of applications and unless there was some reason that should not be done in a particular case, that would give the requisite degree of transparency.

The problem with advertising in local newspapers is that it is of little or no interest to me or to a person applying for a position of doorman in a premises in Ranelagh what is in the Kiltimagh Observer. It is of no assistance to me that the people of Kiltimagh have had notice of this application. Likewise, to ask every person applying for a position as a doorman to advertise in our national newspapers, which is the only way in a city such as Dublin that these matters would come to attention, would be an onerous responsiblity.

[140]In the case of people acting as stewards at the Curragh, for example, are they to be required to place advertisements in newspapers to announce they are applying for such a position? That could happen in an ideal world, if money were no object and if there were an army of officials to check that such a requirement had been complied with. It would be different if there was a way of deciding which is the appropriate newspaper and whether a person living in Kerry who proposes to be a security man at Croke Park should place an advertisement in a newspaper in Kerry or in a newspaper in Dublin. What appears to be a plausible idea seems to fall through one’s fingers when one examines it closely. The proposal I made to the effect that the authority would adopt, as a matter of administrative transparency, a system whereby it would put up on its website details of people who apply for jobs would be sufficient public notification. I do not believe that advertisements in this respect in the Kiltimagh Observer would be much help to people in Dublin. It would give a false sense of security and the matter would be better dealt with in a different way.

Amendment, by leave, withdrawn.

  Ms Tuffy: I move amendment No. 7:

In page 19, line 35, to delete “may” and substitute “shall”.

This is an amendment to section 21(3). If the Minister is allowing the authority to require the type of verification listed in the subsection, he might as well make it a mandatory requirement. It is important that all the facts and details contained in the application should be verified. On the requirement to supply a Garda certificate, similar certificates are required for other purposes as a matter of form. When people wish to go on the supplemental register they are required to obtain a certificate signed by a member of the Garda Síochána. Many such certificates will be required coming up to elections. I do not see why this requirement should not be made mandatory in this legislation.

  Ms Terry: I second the amendment.

  Mr. M. McDowell: I think the word “may” is preferable to the word “shall”. I am sure the authority will demand a Garda certificate wherever it considers it appropriate and reasonable to do so. To require a Garda certificate in respect of each and every renewal would be excessive. As this industry is unregulated, we crudely estimate, taking account of part-time and full-time employees, that some 15,000 people provide security services in this State. The imposition of some 15,000 transactions annually on gardaí, even if a chief superintendent or a superintendent were to take ten minutes per [141]transaction to provide the material which is not a significant amount of time to devote to each certificate, would take up a colossal amount of time. I am trying to free gardaí from paperwork, firearms renewal work and fine collection work. To impose 15,000 annual transactions on senior Garda officers, which are unnecessary in many cases, would be excessive. Whereas I agree with Senator Tuffy that some transactions regarding passports and voting registration require Garda verification, that is not done at a senior level within the Garda Síochána. However, it is envisaged that this certificate will be verified at senior level. I cannot lightly condemn senior Garda management to spending all their time handing out certificates every year to people in respect of many of whom they will be unnecessary in that they will have come to no adverse attention during the year.

Amendment, by leave, withdrawn.

  Ms Tuffy: I move amendment No. 8:

In page 20, between lines 21 and 22, to insert the following:

“(i) that the beneficial owners of the body corporate have not been identified by the applicant, or that such information has not been verified on oath or affirmation,”.

I raised this matter during the Second Stage debate. It can be difficult to ascertain the beneficial owners of companies from the details provided by companies. It could happen that people behind the scenes who have records that are unacceptable could creep through because they have set up a company to hide them. I accept that is not the case in the vast majority of companies. This proposal does not impose a requirement, as initially suggested, to show the beneficial owners, but would allow the authority, if it is satisfied that this information is not available, to refuse to grant a licence, which would be an important power for it to have.

  Ms Terry: I second the amendment.

  Mr. M. McDowell: Section 2 defines a director as including any person occupying the position of director, by whatever name called, any person who effectively directs or has a material influence over the business of the body corporate, any person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act, unless the directors are accustomed so to act only on the basis of providing professional advice and, where the affairs of a body corporate are managed by its members, any of the members who exercises such functions of management. In effect, all persons who have a direct or a material influence over the business of a body corporate fall within the broad [142]definition of director, even if they are not registered under the Companies Acts as being directors of the company.

Under section 21, the authority may require an applicant who is a body corporate to furnish information in respect of the character, financial position and competence of all persons who are covered by the definition of the term “director”. These provisions will ensure that the authority will be able to obtain information on the character and competence of shadow directors and persons who de facto control the company.

In those circumstances, the obligation on the authority under section 22(3) to refuse to grant a licence in respect of the character of directors and its power to require information are quite sufficient to ensure that anybody who is effectively pulling the strings behind a body corporate will be fully identified and that if an applicant is acting as a front for someone else, he or she will be at risk of misleading the authority and committing an offence or, alternatively, of losing his or her licence if he or she has in any way misled the authority. It is sufficiently strong as it is.

Amendment, by leave withdrawn.

  Ms Terry: I move amendment No. 9:

In page 20, between lines 37 and 38, to insert the following:

“(a) shall not be granted to a person who is a serving member of An Garda Síochána,

(b) shall not be granted to a person who is a serving member of the Permanent Defence Forces,”.

On Second Stage, the Minister agreed with me that gardaí should not work in the security business in their spare time. Therefore, by inserting this provision we will strengthen the legislation. It is not good enough to state that other rules dictate that gardaí cannot take part in this type of work.

To use a phrase the Minister himself used, we are using a sledge hammer to crack a nut by using members of the Defence Forces in this context. These people are highly trained in combat and to have them working as door supervisors is inappropriate for many reasons. I ask the Minister to reconsider and accept this amendment.

  Ms Tuffy: I second the amendment.

  Mr. M. McDowell: I have not changed my mind since the earlier debate in this House on the subject. The position in respect of the involvement of gardaí and members of the Defence Forces in providing security services is as follows. In regard to the Garda, any such off-duty activity is already prohibited. Garda [143]Síochána discipline regulations define prohibited spare time activity as including, among other things, any activity which is prohibited by the Commissioner as inappropriate for members to engage in. Acting as directors or secretaries of security firms or being in any way engaged in security work as a spare time activity is so prohibited. Section 16 of the Garda Síochána Bill, which is before the House, makes provision for statutory codes of conduct and on balance it would be more appropriate to deal with the off duty conduct of gardaí in the context of such codes rather than the Bill we are discussing.

Defence Forces regulations provide that involvement in off duty employment may be terminated or limited where such employment is likely to be prejudicial to the best interests of the service. I do not believe off duty soldiers should be told they cannot act as marshals at the Curragh races. I see no reason or basis for my saying that, in their own spare time, they cannot engage in such activity. I do not believe their involvement in dealing with violent situations with firearms and in self-defence makes them ineligible to act in places in which they could or might be required to use their skills in the course of their duty. The fact they are trained, disciplined and lead a disciplined life makes it less, rather than more, likely that they would abuse someone in a violent way compared to someone who has no such training or disciplined lifestyle.

I differentiate fundamentally between members of the Irish Prison Service and the Defence Forces who, so long as they do not do something which is egregiously inconsistent with their main terms of service to the State, should be free to provide security services of this kind. That notwithstanding, it is inappropriate for gardaí to do this because gardaí will be involved in the enforcement of this legislation. In this case, such people would be dealt with by colleagues. For example, if gardaí are working as doormen or are providing security services and are being recommended and certified by superintendents, everyone will start shouting and roaring that there is a conflict of interest.

The nature of security functions are analogous to Garda functions but are not analogous to prison officer functions, except in a very loose manner. They are likely to be in situations in which members of the Garda will have to deal with them one way or another. In those circumstances, it is reasonable to say to members of An Garda Síochána that this type of work is off limits. The appropriate place to state that is in the Garda code, which is the position now. Gardaí are not allowed to engage in this kind of behaviour as a matter of Garda discipline, provided for by Garda regulations, through which [144]the Commissioner may be in a position to state that members may do some things but not others.

The code of conduct for members of An Garda Síochána, which is to be incorporated into the Garda Bill which is already before this House, envisages a code of ethics which will be well worked out in advance and be subject to prior consultation with the representative associations, the Equality Authority, the Human Rights Commission and the Ombudsman Commission. In those circumstances, that code of conduct and the disciplinary regulations open to the Garda Commissioner under Garda legislation are the appropriate instruments to deal with this matter.

As currently advised, gardaí may not provide any security services envisaged by this Bill, which is an appropriate and proportionate response. Whereas I accept that Senator Terry is acting in good faith in this matter, I do not see it is fair to put members of the Defence Forces into the same category and disqualify them from providing security services in their own time. The Defence Acts, as I remember from my days in the FCA, provide in section 168 or 169 that conduct prejudicial to the good order and military discipline of the Defence Forces is punishable under military law. Therefore, if someone does something which is prejudicial to good order and military discipline, which includes behaviour while off duty, it is capable of being dealt with under military law. My view is that it is not necessary to include the specific amendments being sought by the Senator.

Amendment, by leave, withdrawn.

  Ms Tuffy: I move amendment No. 10:

In page 46, between lines 15 and 16, to insert the following:

“21.—Where documents, information, observations or submissions are received under paragraphs 16 to 20, other than from the applicant for or holder of a licence, which are not by virtue of those provisions required to be transmitted for observations or submissions to such applicant or holder, a copy thereof shall be transmitted to the applicant or holder concerned who may, within 14 days, submit to the Authority his or her observations or submissions thereon.”.

This amendment was tabled on Committee Stage because we think fair procedures are necessary. Surely, the applicant should have the last say on any submissions made about him or her, particularly in respect of any allegations. I do not know if they are entitled to challenge this legally but it seems unfair as it is drafted.

  Ms Terry: I second the amendment.

[145]  Mr. M. McDowell: We now have a European Convention on Human Rights law which requires every State agency to carry out its activities in a manner compatible with the convention. However, before there ever was a European Convention on Human Rights, there was an obligation under Irish law for everyone to comply with the constitutional values and for every organ of the State to discharge its functions in a manner compatible with the Constitution. Therefore, due process in all of these matters, which is implied by the Constitution and the convention as a matter of domestic and international obligation, requires that people be given an adequate opportunity to confront any case made against him or her. I have no doubt the procedures involved in the operation of this Bill will fully comply with constitutional and international human rights norms. It is not necessary to provide for detailed provisions of the kind mentioned in the amendment. We have the underlying guarantee that the security authority, being an organ of the State to which the European Convention on Human Rights Act and the Constitution already apply, will discharge its function in a manner which fully respects natural justice, the obligations of fairness and the entitlement to hear any party in respect of any decision to be made against him or her in a manner which allows him or her fully to confront any objection, subject to the ordinary rules of law in this matter. Therefore, I am not disposed to accept the amendment.

Amendment, by leave, withdrawn.

Bill reported without amendments and received for final consideration.

Question proposed: “That the Bill do now pass.”

  Mr. J. Walsh: The Bill has received good scrutiny here and in the Dáil. The Minister must be complimented on bringing forward this legislation. This area has given rise to public concern and the need for regulation was evident. I compliment the Minister on dealing with the legislation in a comprehensive and fair manner. The Bill will reassure the public as to the manner in which security services are provided and that those involved in the industry are people of character who can be relied upon to do their jobs with integrity.

  Ms Terry: I thank the Minister and his staff for coming to the House to debate this Bill. I welcome the Bill, although I would have liked to have had my amendments accepted. It is about time the security industry was regulated. I welcome the passage of the Bill and I thank the Minister for bringing it forward.

[146]  Ms Tuffy: I thank the Minister and his staff and I welcome the legislation. I hope the Minister will monitor its implementation in consultation with the authority and that it will be amended if that proves to be necessary.

  Mr. M. McDowell: On my own behalf and on behalf of my officials, who have dealt with this matter so efficiently, I thank Members for their kind words.

The Bill has been a long time coming. It arises out of a 1997 report and was first published in 2001. Since becoming Minister I have regarded its passage as a priority, although it may seem otherwise. It is not simply that this sector needs regulation. There is a real and present danger that security functions are being abused by malign sectors of our society to act as extortionists and blackmailers in certain circumstances. Therefore, its passage is a matter of considerable urgency. When the matter was finally brought before the Select Committee on Justice, Equality, Defence and Women’s Rights, I indicated that I regarded its passage as a priority for my term of office. I have put considerable emphasis on having the Bill enacted.

Senators Tuffy and Terry have both remarked that they wish to be sure the Bill is effective. I share their wish. If the Bill is found to be ineffective I will not hesitate to act quickly to remedy any defects in it. It has been thoroughly debated in both Houses and has been carefully scrutinised by my officials to make sure it works. Significant amendments have been made to the Bill as it went through the legislative process and I must now bring the amendments made by this House to the Dáil for its early approval so the Bill can become law.

The point has been made on a number of occasions that the resourcing of the authority, especially in the preliminary stages, is a matter of significance. That is a point with which I agree. I have stated in both Houses that the legislation will be implemented on a phased basis, starting at the point where it is most necessary to make early progress, so the new authority is not overwhelmed by a mass of documentation that suffocates it completely and prevents it from getting on with the work.

The Bill will significantly transform the security industry. It will prevent the small minority of participants from damaging the image of the industry and its standards. It is important legislation.

I thank Members for their co-operative and reflective debate on this measure. I join them in expressing the hope, not only that it will be passed very soon but that it will be implemented with equal dispatch.

Question put and agreed to.

[147]  An Leas-Chathaoirleach: When is it proposed to sit again?

  Mr. J. Walsh: On Tuesday, 6 April 2004 at 10.30 a.m.