Introduction
On behalf of the Minister for Justice & Equality, for whom I responding to the Bill today, I want to thank Deputy McGrath for bringing forward the Bill and affording the House an opportunity to discuss these matters.
At the outset, I want to acknowledge Deputy McGrath’s keen interest in this matter and the fact that this is the second iteration of the Bill that he has brought forward. I am also aware that Deputy McGrath, in bringing forward this bill, is representing concerns expressed by many voices across a number of sectors, ranging from householders concerned about burglaries, to farmers concerned about theft of cattle grids, to conservationists concerned about damage to historic buildings arising from the theft of metal roofing materials & ironmongery; to those in many other sectors concerned about theft of cabling, manhole covers and so on.
While, unfortunately, we are not in a position to accept this Bill, I can assure the Deputy that his proposals will be fully taken into account in the comprehensive approach which the Government is taking in this area.
General Background
By way of background we are all aware of the concerns that have been raised in recent years concerning the theft of metal, be it scrap metal or precious metal in the form of jewellery and the like. In particular, concerns have been expressed that the advent of ‘cash for gold’ operations in recent years has provided an avenue by which stolen goods are disposed of by criminals, which has led to an increase in such thefts and burglaries.
I think it is important though to recognise that effective action has been taken to address theft of this kind. I will provide further detail in relation to what actions have been taken later in my contribution, but I wish to highlight the fact that burglary rates are declining. I am conscious of the deep distress which burglary can cause to householders in both urban and rural areas but I draw the House's attention to the significant progress made by An Garda Síochána under Operation Fiacla which focussed on identifying and targeting gangs involved in burglaries. This operation has proved a robust and effective response to those who seek to prey on law abiding householders. Figures published by the Central Statistics Office show a welcome reduction of 7.2% in burglary and related offences over the course of 2013. This trend has been continuing since the introduction of Operation Fiacla which has led to the arrest of 9,343 persons with charges preferred against 5,431 persons up to 31 May 2014.
With regard to the suggestion that ‘cash for gold’ outlets may, inadvertently, be fuelling continued high rates of burglary and theft, it is, of course, possible that businesses such as these are among the routes utilised by persons seeking to dispose of stolen goods. However, I am informed by An Garda Síochána that they have no evidence to suggest a direct link between burglaries and the 'Cash for Gold' sector. An Garda Síochána continues to monitor this situation closely.
I should also say that the Garda authorities have expressed the view that the current criminal law is adequate. While the informal purchase of gold, jewellery or scrap metal is not specifically regulated in criminal legislation, the circumstances in which such transactions occur may indicate the commission of an offence: such as, the offences of handling stolen property and/or possession of stolen property, under Sections 17 and 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
That, of course, is not to say that the authorities are in way complacent about these matters. While there is criminal justice legislation in place, there is certainly a case to be made, and considered, for tighter regulation of areas such as these. This would encompass many of the elements contained in Deputy McGrath’s Bill such as identification of customers, recording of transactions and retention periods for such property.
What Action Has Been Taken
I want to take the opportunity now to outline to the House what measures have already been taken to address this issue. While no new legislation has yet been enacted, that is not to say that significant action has not been taken.
The Department for Justice & Equality published a report in June 2012 on the criminal justice aspects of the cash for gold trade. It noted that there are grounds for considering
· the introduction of some controls on the purchase of jewellery and other precious metals;
· controls relating to the identification of the seller, information on the source of the valuable and its identification, retention of an item at the outlet, requirement to record transactions and provide access to items and records to members of An Garda Síochána;
· development of adequate Garda powers to access, search, question and arrest backing up regulatory requirements without the need for any form of registration or licensing involving An Garda Síochána;
· existing laws on Pawnbrokers and perhaps other existing statutory frameworks could provide a useful template for regulatory matters being considered.
The Report also highlighted the actions undertaken by An Garda Síochána in visiting Cash for Gold premises in the State to make operators aware of their responsibilities and obligations under the law with regard to purchasing gold/ jewellery. Garda contact information was provided to operators to facilitate reporting of any suspicious activity to An Garda Síochána.
The Joint Oireachtas Committee on Justice, Equality and Defence considered the content of that report and provided observations and suggestions in May 2013 as follows:
1. The possibility of amending current legislation in relation to the operation of Pawnbrokers as a framework for regulating these businesses;
2. Cash for Gold businesses be required to verify the identity and address of their clients:
3. Maintain a record of every transaction undertaken with each client, including the amount paid;
4. Where such a business has multiple branches, records should be centralised;
5. Stipulate a cooling-off period whereby a client can return cash received and retrieve items;
6. Report any large or unusual transactions to appropriate authorities; and
7. Allow appropriate authorities access to necessary records.
The Committee also noted that the advent of specific 'Cash for Gold' businesses was a relatively new phenomenon and that drafting legislation to regulate this sector would be a complex.
Following receipt of these observations work has been ongoing in the Department of Justice & Equality on the development of draft Heads of a Precious Metal (Cash Dealers) Bill. These draft Heads would provide for a regulatory regime based on registration and compliance monitoring of businesses trading in precious metals and stones. They would substantially meet the recommendations of the Oireachtas Committee and seek to achieve similar aims of the Bill before us today, though, the approach involved would be different. The views of An Garda Síochána on these draft Heads of a Bill have recently been received and further engagement with An Garda Síochána will be required.
Notwithstanding these developments it is important to recognise that any legislation in this area would have a potentially significant impact on a broad range of businesses for example jewellers, antique dealers, ‘cash for gold’ outlets, etc. Any registration and compliance operation will have resource implications for these businesses and for the State. The regulatory and resource burden of any proposed measure will have to be carefully examined to ensure that it is proportionate to the matter being addressed. Therefore, it is appropriate to carry out a Regulatory Impact Assessment and conduct a process of consultation with groups likely to be affected.
With regard to Scrap Metal, An Garda Síochána has established a Metal Theft Forum involving stakeholders particularly affected by this type of crime, including the Irish Farmers' Association, the Irish Creamery Milk Suppliers Association, the Electricity Supply Board, telecoms, transport companies, brewing concerns and the Department of the Environment, Community and Local Government.
An Garda Síochána published a Metal Theft Crime Prevention and Reduction Plan in February 2013 which was developed in close cooperation with stakeholders who participated in the Forum and it is designed to provide for an effective and multi-agency response to the problem. An Garda Síochána is implementing a range of measures arising from the Plan, including relevant actions under Operation Fiacla. Deputies will also be aware of the successful operation by An Garda Síochána last week as part of a Europe wide ‘Metal Theft Days of Action’ supported by Europol. Operations in this jurisdiction resulted in the recovery of significant amounts of metal material and the making of a number of arrests.
On the question of traceability of scrap metal, the Department of Environment, Community & Local Government has developed draft regulations under the Waste Management Act which aim to enhance the traceability of scrap metal purchases and will include provisions that:
(a) require the production of proof of identity and current address of
the person supplying the material,
(b) require records to be kept of the registration number and waste collection permit number of the delivery vehicle,
(c) require that records be kept describing the materials, time and date of sale, weight and amount paid, etc.
(d) require a signed statement by the person supplying the material that they are the lawful owner of the material or have the consent of the lawful owner to sell the material.
These draft regulations were the subject of public consultation and the Department intends to introduce them shortly.
These measures will go some way in addressing the aims of the Bill before us and their impact will be carefully monitored by both the Department of Environment, Community & Local Government and the Department of Justice & Equality.
Bill as Presented
I now want to address the Bill put forward by Deputy McGrath which has identified a number of useful measures that could potentially be of assistance in addressing this issue for instance:
· Dealers must record the details of transactions (including identity of sellers, nature of the material, origin of material, etc.) and retain such records for 5 years
· Dealers must retain material for 30 days and in the case of precious metals in an unaltered state for 5 days
· Powers for An Garda Síochána to enter premises, seize records, materials etc.
· Offences and penalties for non-compliance with provisions of the Act, in relation to such matters as falsification of records, withholding information etc.
The intention behind these provisions would appear to be sensible and represent one approach that could be taken. However, there are some significant issues with the Bill that I should mention.
With respect to Precious Metal Dealers the Bill appears to envisage a licensing arrangement of some kind. Provision is made at Section 3(4) of the Bill for revocation and non-eligibility for licences; however, no provision is made for the issue of such licenses. No similar licensing arrangements are envisaged in relation to Scrap Metal Dealers.
No lower monetary threshold is set in respect of what transactions must be recorded. By implication all transactions, no matter how small, would have to be recorded. This would give rise to concerns about the proportionality of the approach envisaged. Equally, the range of businesses and persons who will be affected is very broad i.e. anyone in the case of Precious Metals Dealers who engages in 3 transactions a year (of any value) and in the case of Scrap Metal Dealers, any transactions of any value.
The Bill at Sections 5(1) and 9(1) provides that An Garda Síochána should inform all Precious and Scrap Metal Dealers of all property that has been lost, stolen or otherwise fraudulently obtained or disposed. The Bill does not provide for the registration of such businesses and the question of who should be contacted then arises. This is, of course, putting aside the more fundamental issues of requiring An Garda Síochána to make such information available and the fact that this provision relates to all property, not just metals.
I would point out that there are quite fundamental issues in relation to the approach proposed which need to be considered. By way of example, the issue of registration of such businesses is one issue that needs to be carefully considered. The approach that has been taken in Pawnbroker legislation and in relation to compliance with Money Laundering legislation provide useful models on which to build. The Heads of a Bill being developed by the Department of Justice and Equality in this area seek to build on those measures.
Conclusion
I want to assure the Deputy again, that his proposals will be fully taken into account in the comprehensive approach which the Government is taking in this area. It is the Minister’s genuine desire to be in a position to accept Private Members Bill that are introduced in this House. However, for the reasons that have been outlined, it is with some regret, that this Bill cannot be supported.