Dáil Éireann debate -
Thursday, 31 Mar 1977

Vol. 298 No. 6

Misuse of Drugs Bill, 1973: Report Stage (Resumed).

Debate resumed on amendment No. 26:

In page 14, to insert "contrary to section 17 of this Act" after "cultivation" in line 21.

—(Minister for Health).

Dr. Byrne

When speaking on this amendment yesterday I referred to the increasing number of people growing the genus Cannabis. Though not wishing to deviate from the amendment I drew attention to the fact that titled landowners, nouveau riche, pseudo-liberal, left wing intellectuals are among those most prominent in growing their own crop of marijuana, that it has become a fad and the in thing to have one's own private plot on one's estate and grow one's own supply. Tied in with this in relation to other parts of the Bill— where a very liberal view is taken of the possession of a small quantity of cannabis for one's own use—there will be a further reflection on this section in relation to how much, if any, a person would be allowed to grow that would not come under the normal penalties in the Bill.

This Bill, in attempting to deal with the widespread problem of cannabis, is too bureaucratic, cumbersome and elaborate. It is almost a blueprint of the British legislation introduced in 1972 by Reginald Maudling. It is almost an identical copy—apart from the treatment sections—of the Fianna Fáil Bill. It is also almost an identical copy of the Private Members' Bill Fianna Fáil attempted to bring in.

This section, referring to the growing of cannabis and opium, to the preparation of cannabis for smoking, to an occupier in control of or concerned in the management of any land, vehicle or vessel, will be nullified by the section which allows a person to have cannabis in his possession for his own personal use. Therefore, I view with grave concern the ineffectiveness of any penalties which could be considered under this section. It is well know that cannabis use has spread throughout our society at an alarming rate, that the numbers of those using it have increased dramatically. Indeed, some of those users are among the most vulnerable sections of our society, many of them coming from the student population most in need of all the protection legislation can afford them. When it comes to drugs of this kind liberal thinking is not to be condoned.

An Ceann Comhairle

I am anxiously awaiting the Deputy to come to the subject matter of the amendment. I have already had to remind him that a long-ranging speech on this amendment is out of order. He has had plenty of latitude in that regard. I should like him now to come to the amendment. Indeed, debate on the section is out of order. The sections have been disposed of on Committee Stage. We are now dealing with a very limited amendment on this section. The Deputy has been allowed wide-ranging latitude and I am anxious that he would now come to the point.

Dr. Byrne

The debate in Committee was rather limited and as a result of amendments there the Minister has now put forward this amendment which I support, although I had hoped he would go a little further.

Mr. Haughey

I welcome the amendment which was necessary because as it was framed, section 19 could result in serious injustices. It was very widely cast in its wording, and in the anxiety to deal with the problem, it would put a large number of people in danger of prosecution for offences in regard to which they would not be culpable. The section deals with persons who are occupiers or are in control or are concerned in the management of any land, vehicle or vessel and sets out a number of situations. Under the section as it exists, even though one might be only in control of or concerned with the management of land, one could be made liable for an offence if opium or cannabis were cultivated or grown on that land.

The amendment goes some way to improve the situation, and in so far as the cultivation of opium poppies or the growing of cannabis is concerned, it will have to be proved that the activity is contrary to section 17. It will have to be shown that the cultivation or the growth was not by licence. That is what the amendment will mean. We are all grateful to Deputy Byrne for directing attention to that situation and to the Minister for putting down the amendment.

However, section 19 will still be very wide and many of us on the Special Committee expressed doubts on the situation. When dealing with such a complicated situation we appreciate that we must be prepared to envisage a net catching people who might be innocent and we must still rely on the courts to ensure that justice will be done. It must be realised that people completely innocent could be prosecuted under section 19 but in this sort of legislation this sort of thing seems to be inevitable if we are to deal with people who grow, push or sell these dangerous drugs.

The amendment is only common sense because it makes sure at least that in a situation where a licence exists one will not be prosecuted for owning, controlling or managing land on which cannabis is grown or opium poppies are cultivated, activities with which a person is not connected in any way.

Deputy Byrne referred at some length to the whole question of cannabis. We have now come to a decision about it rightly or wrongly. It caused serious problems for laymen on the committee particularly when we found the medical experts in disagreement. In that situation what are we non-experts to do? The discussion in the committee was worth while, everybody expressed views to the best of his ability and the Minister was very receptive. On the whole, it was a good constructive process and, rightly or wrongly, we have come to a certain decision about cannabis. We are not prepared to accept yet that it is completely harmless, and the Bill is based on the proposition that it is still an offence to have cannabis in one's possession even for one's own use. However, we have made a reasonable compromise and all we can do is to hope that the legislation will work out reasonably satisfactorily and that some day the experts will reach a definitive decision on cannabis and let us know what they want us to do about it.

Amendment agreed to.

Minister for Health (Mr. Corish)

I move amendment No. 27:

In page 16, to delete lines 16 to 33 and substitute the following:

"23. —(1) A member of the Garda Síochána who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug, may without warrant—

(a) search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonable necessary for making the search,

(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of such vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or in case such vehicle, vessel or aircraft is already stationary, to refrain from moving it, or

(c) seize and detain anything found in the course of a search under this section which with such cause appears to him to be something which might be required as evidence in proceedings for an offence under this Act.".

This arises from a discussion on section 23 on Committee and from recommendations by the National Health Council and medical people in relation to the matter of medical prescriptions and records. It was felt that the legislation should not apply to medical prescriptions except in regard to controlled drugs. The amendment confines the Garda Síochána search to controlled drugs. It has been made clear that where a garda with reasonable cause suspects that a person is in possession of controlled drugs he may detain him for such time as is reasonably necessary to make the search. The amendment also provides that a member of the Garda must have reasonable cause before he seizes for purposes of evidence anything found in the course of a search. On the basis of Committee discussions and representations by the National Health Council I have tried to achieve the best balance possible in regard to the enforcement of the Act.

Mr. Haughey

We accept the amendment and appreciate that the Minister is going a reasonable distance to meet suggestions made in Committee. In sections 23, 24, 25 and 26 we come up against this very real problem of trying to maintain a balance between the rights of the individual, the freedom of the individual to go about his normal pursuits without interference and the necessity to deal with a social problem. We gave this matter a great deal of thought and consideration at the Special Committee and there was a very free and frank discussion on the matter. We all found ourselves in agreement as to what we would like done. We just had a difference of opinion as to how it should be done.

There is no point in bringing in legislation of this sort unless we can ensure it is effective, it can be implemented and that the Garda Síochána have the capacity, the ability and the power to give effect to its provisions. On the other hand, we do not want a police state. We do not want the existence of some particular evil or problem to result in the loss of freedom for practically everybody in the community. This is, perhaps, the modern dilemma; how do we cope with these problems in a modern community and how do we give the authorities the necessary powers to deal with these difficult situations while at the same time preserving the highest possible degree of individual freedom? None of us wants to live in a community in which there are irksome and unnecessary restrictions on the liberty of the individual citizen. We all like to try to achieve the situation where the person who does no wrong or is not involved in any nefarious activities would not be bothered by the Garda Síochána at any time or in any way but, unfortunately, that is not possible because the Garda Síochána cannot always know who is engaged in illegal or nefarious activities. From time to time mistakes occur and innocent people find themselves involved with the law, through no fault of their own.

In reply to a parliamentary question recently we were told that the Garda Síochána detained in the region of 400 people and finally were only able to procure prosecutions against six people. We were told that prosecutions were only brought in 30 cases. That is an unduly high proportion. One would like to think that the Garda in the implementation of this legislation would be much more accurate in their assessment than that. It is a bit disconcerting to think that 400 people have to be brought in in order to prosecute 30. That is an unhappy situation in any community. I do not believe that there is any danger of that arising in connection with the implementation of this legislation. We all have a great deal of confidence in the members of the Garda Síochána who are entrusted with giving attention to this area. Most of us in our capacity as Deputies have some experience of the way in which the section of the Garda Síochána responsible for the drug problem go about their business and we are satisfied with the way they do that. Of course, when this legislation comes into effect it will be open to any member of the force to act under the provisions of the legislation and, therefore, it is important that we build into these provisions as many safeguards as possible without, at the same time, making the legislation ineffective. That is a perennial problem that confronts us in this House, to try to make sure that the Garda Síochána have the necessary powers and, at the same time, that the powers are not excessive.

This is the sort of situation where we can only do our best in framing the legislation and then we have to leave it to the traditions of the Garda Síochána to ensure that the thing is implemented in a reasonable and satisfactory way. A civil servant whom I knew once and who had spent a lifetime in the administration of justice here always maintained that the happiness and welfare of a local community depended on the common sense, wisdom and experience of the local Garda sergeant. There is a great deal in that simple proposition. With a fair degree of confidence we can expect that these provisions will be used sensibly and reasonably by the Garda Síochána and that the legislation will be clearly in the minds of the gardaí when they are enforcing its provisions. The purpose of the legislation is to deal with the evil problem that exists and, at the same time, not to have any undue, unnecessary or irksome interference with ordinary citizens going about their daily affairs.

The changes made by the Minister in this new section are significant. The basic change is the change of wording from "reasonable grounds for suspecting" to "reasonable cause suspects". At first sight there might not appear to be any great difference between those two sets of words but, in fact, there is. The original section was concerned with the situation where a member of the Garda Síochána had reasonable grounds for suspecting and many of us thought that that was a bit nebulous, a bit vague, that any garda at any time could consider he had reasonable grounds for suspecting but there was no objective test which could be applied. Under the new section there is a test which can, if necessary, be subsequently applied to the action of the garda. The new section stipulates, in fact, that the garda, before he does any of these things without a warrant in section 23, must have a cause for suspecting. That is a reasonable safeguard as far as we are concerned. If subsequently there is a complaint, legal action taken because of the action of the garda by someone who feels aggrieved, then it can be reasonably ascertainable whether or not the garda had cause to suspect as distinct from whether he had reasonable grounds.

This is an improvement and one which we on the Special Committee asked the Minister to carry out. He has now met us on this issue. The new section is confined to controlled drugs and the forged or wrongfully issued prescription has been dropped from the ambit of of the section. I think that is wise. After all, we are giving fairly unusual and wide power to a garda and it is right that it should be confined specifically to the actual problem itself, that is, the person on the drug. I am glad to welcome the change which the Minister proposes here. Perhaps we could have come up with a better or wiser provision but we have done our best after long and serious discussion and earnest consideration and at this stage we can only hope that what we are providing here will work successfully. It will give the Garda the special powers that they need to cope with the drug situation and at the same time they will be constrained to act reasonably in implementing the provisions of the legislation.

Mr. Wyse

As Deputy Haughey said, we spent quite some time on this section and also on sections 24 and 25, up to the concluding sections of this Bill. We are now dealing with the implementation of the provisions of the Bill and if the Bill is to be really effective the remaining sections are of vital importance. I had certain reservations about section 23 because I was a little worried about the prescription. I agree with the Minister's amendment. He has come a long way to meet the wishes of the members of the working committee.

I agreed totally with the original section but I should like to ask one question. A person may be carrying a forged prescription and if this is suspected by the garda, what is the position then? I agree with Deputy Haughey that we are all worried about infringing constitutional rights but at the same time we must remember that we are trying to protect thousands of young people from those who move through the streets and dance halls and lounge bars peddling drugs. To me this is the most important aspect of the Bill. We must safeguard these young people. Perhaps the Minister could enlighten me further regarding the position of a garda who suspects someone and who, in the course of a search, comes upon a prescription which he has reason to suspect is forged. That prescription could be a passport for that peddlar. I am not objecting to removing prescriptions from the section but I am somewhat worried about this because we are really talking about the forged prescription. The Minister said that he had discussions with the medical profession on this. I agree with the section and I agree with the majority of the members of the committee in their observations but I am worried about the situation in which a garda is convinced that the prescription has been forged.

Dr. Gibbons

Fortunately, I do not have much contact with this problem down the country and the gardaí in my area do not have much difficulty with it either. It is correct to say that the gardaí who are dealing with this in the built-up areas do so in a benevolent way and have a personal interest in the problem. They act more in the preventative aspect than in the criminal aspect. We are lucky in the people to whom we are giving those powers. Any reasonable person must agree that under some circumstances a garda must have the right of search without warrant and he must have the right to detain persons for some time. My worry would be about how long the person would be detained. I feel that under present circumstances the people dealing with this problem are not likely to abuse this power and it would be a pity if this power were abused at any time. It is important to build up a relationship between the Garda and the people trying to break the law and this relationship should be fostered.

Deputy Wyse has indicated that his difficulty is with the forged prescription. I do not see the same difficulty here because the Minister has indicated that he is giving a lot of thought, with the medical profession, to the design of the prescription form. It has been suggested by Deputy Haughey that it should be an easily recognisable form and it should be obvious to any pharmacist with a reasonable amount of experience that there is a difference between it and the forged prescription. No doubt there are clever people who will from time to time succeed in forging a prescription but the number of times this would occur would be limited. There is another aspect which the law cannot take cognisance of and that is that there are certain people who like to have access to medicines, even though they have no notion of taking them, because the fact that they are there gives them a certain amount of confidence. The medicines may be in cupboards for months and this is what leads to the build-up of medicines in cupboards. It is also possible that a person might like to have a prescription in his pocket in case he would need the prescription at any particular time and the fact that he has it gives him the feeling that he has something to fall back on should the necessity arise. I admit this is not the best reason for having prescriptions in one's pocket.

Another aspect is in relation to ships. Has any thought been given to the proposed extension of our fishery limits to 50 miles and 200 miles? Where do we stand legally in those circumstances? Will this Bill extend to the 50-mile and 200-mile limits? The number of occasions on which a problem could arise would be few but there is food for thought here. By and large, I agree with the amendment and I doubt if the Bill would function at all without it. If the amendment were not incorporated the Bill, when enacted, would be useless. The only matter on which I have a slight doubt or to which I have some objection is that of detention. One hopes the need for this will be the exception rather than the rule.

Mr. Wyse

May I ask the Minister a question before he replies?

An Ceann Comhairle

A brief question, yes.

Mr. Wyse

Following on what Deputy Gibbons has said, I was talking about the forged prescription. The Minister has yet to make the decision on section 14. I understand he is still discussing it with the medical profession.

Mr. Corish

This amendment has been generally accepted by Members. It is in accordance with the representations made at the Special Committee and as a result of discussions with the National Health Council and the medical profession. Deputy Wyse said he was worried about the phraseology in section 23. It has been changed. We must agree that the Garda act with care and responsibility and the words used are "has reasonable cause". They must have reasonable cause. If they do not have reasonable cause a civil action could be taken against them so they will have to be very, very careful. I do not suggest the Garda should be timid in searching for drugs but they will be aware that they must be very, very careful.

Deputy Gibbons referred to the detention of a person whom a garda had reasonable cause to believe was carrying drugs. That was very wide indeed in the original section but now a person can only be detained for such time as is reasonably necessary in regard to a search. That would, of course, be determined by the Garda. Nobody visualises a search continuing for a week and a person being detained for a week. I cannot say how long a search might last but I believe it would be carried out in a proper manner. I am not trying to commit the Garda to anything, but detention in the original section could mean detention for any period whatsoever.

Deputy Wyse referred to an infringement of constitutional rights. This is an extremely delicate and difficult situation but, as far as drugs and drug abuse are concerned, whilst we certainly do not waive constitutional rights, we must trust the Garda and give them as much latitude as possible in order to stamp out this evil.

The question was raised as to what would happen if a prescription were found in the course of a search. Subsection (1) specifically provides that a garda cannot search for prescriptions as such but, if he came across what he believed to be a forged prescription, I think we would have to accept that. What we want to guard against is the searching of cars belonging to the medical profession in which there might be confidential documents. In the case of the ordinary person a garda would be bound to act in accordance with the law if he found what he believed to be a forged prescription.

This amendment, as Deputy Haughey said, is a vast improvement on the original section. That improvement is the result of the detailed discussion we had in the Special Committee. I believe we have gone as far as we can in this amendment.

Amendment agreed to.

Mr. Corish

I move amendment No. 28:

In page 17, to delete lines 7 to 9 and substitute the following:

"25. —(1) Where with reasonable cause a member of the Garda Síochána suspects that an offence under section 15 of this Act has been committed and so suspects a person of having committed the offence, he may arrest the person without warrant.

(2) Where with reasonable cause a member of the Garda Síochána,

(a) suspects that an offence under this Act, other than an offence under section 15, has been committed or attempted, and

(b) suspects a person of having committed the offence or having made the attempt,

then if the member,

(c) with reasonable cause suspects that the person unless he is arrested either will abscond for the purposes of evading justice or will obstruct the course of justice, or

(d) having inquired of the person, has reasonable doubts as to the person's identity or place of abode, or

(e) having inquired of the person, knows that the person does not ordinarily reside in the State, or has reasonable doubts as to whether the person so resides.

he may arrest the person without warrant."

If Members look at the original section 25 they will see that it is a very short and rather severe type of section. After discussion in the Special Committee I decided that it seemed to be too severe because it gave wide power of arrest without certain safeguards. A number of suggestions were made for modifying these powers and the consensus generally was that the section should be limited to serious offences or to circumstances in which there was an obvious and serious risk of an evasion of justice if the ordinary procedure of securing a warrant for arrest had to be followed.

In this amendment I have tried to meet the consensus of views expressed at the Special Committee. The original section 25 is being replaced by a new section. Subsection (1) provides for an unqualified right to arrest without warrant only in case of offences under section 15—in other words, arrest of persons suspected of being pushers. In such cases I do not think we would be justified in restricting the Garda in the enforcement of this particular section.

For other offences under the Bill the power of arrest without warrant would be restricted in a number of ways. These are set out in the amendment in paragraphs (c) to (e) of the proposed new subsection (2). The garda must have reasonable cause to think that the suspect might abscond or obstruct the course of justice. He must have reasonable doubts about the identity of his place of abode or must have doubts about whether the person resides in the State. In cases not covered by these considerations the ordinary procedure of obtaining a warrant for arrest would apply. In this amendment I have endeavoured to maintain the balance between the need for effective enforcement of the Act and the rights of the individual. I hope that this new section, the substitution for section 25 of the original Bill, will be accepted by the House.

Mr. Haughey

Once more I am glad to welcome this amendment and to agree to the change the Minister proposes to make. As he said, section 25, as originally put before us, was very draconian. It was a pretty simple straightforward provision that a garda only had to be of the opinion that a person had committed an offence under this Act. It is important to note that it dealt with any offence under the Act. If the garda was of the opinion that any offence under the Act was committed he could arrest without warrant. I believe, looking back on it now and reflecting on it, we all agree that was far too sweeping and far too loose in the wording.

A garda had only to be of opinion and the original section did not even state that he had to have any grounds for that opinion. He could, out of the air, as it were, form an opinion that an offence was committed. The Minister is very wise in making the change he now puts before us. A very important aspect of the change is that the new section 25 will be confined to offences under section 15. That is the real essence of the change.

Section 15, is, of course, the pushing section. It is the one which deals with people who are in the commercial business of selling or supplying controlled drugs. The section is directed at the heart of this problem. It tries to catch the people who are engaged in the nefarious trade of pushing controlled drugs. That is basically what section 15 is about.

I fully agree that section 25 will be confined to offences under section 15. The original section 25 would have enabled a garda to arrest a citizen who committed the simplest and most technical type of offence under the Bill. It is quite proper to confine the power of arrest without warrant to offences arising under section 15 because that is really the sort of offence all of us want to get at. That is the activity we want this Bill to bring to a complete stop. We are all quite prepared to give the Garda the maximum possible powers we can legitimately grant them to deal with that type of offence.

The new section 25 also introduces the concept of reasonable cause. A member of the Garda Síochána, before deciding to act under the new section 25, must have reasonable cause, as distinct from the old section 25, which just stated that he would have to be of opinion. That is a commendable change and it is an adequate safeguard. The new section 25 is very cleverly constructed. It is in two parts and it is a very sensible and intelligent approach to divide the matter into those two parts.

Section 25 now stipulates that where a garda has reasonable cause for suspecting that an offence under section 15 of the Act has been committed and so suspects the person of having committed the offence he may arrest without warrant. That is a simple straightforward situation. An offence must be committed before that particular part of the section comes into operation. If the garda has reasonable cause for suspecting that the offence has been committed and that this person has committed it he can arrest him without warrant. We all agree with that. There must be reasonable cause and there must be an actual offence. Then the garda can arrest the person without warrant.

I might not have made it quite clear that subsection (1) of the new section 25 is restricted to section 15, the pushing section. I may have suggested that all of the new section is restricted to offences under section 15. As far as the offences under section 15 are concerned they are dealt with under subsection (1) and the situation is quite straightforward and quite specific.

The second part of the new section deals with offences under this Act other than offences under section 15 and what is proposed there is not quite so draconian as what is proposed in relation to offences under section 15. In subsection (2) of the new section we will be dealing with what I might call ordinary offences, those which are separate from the crime of pushing and selling. The Minister rightly makes an important distinction between those two types of offences.

In regard to the general body of offences which will arise under the other provisions of the Act, other than section 15, a different procedure is envisaged. Again, the Garda must have reasonable cause for suspecting that an offence has been committed or is attempted and that the person involved is the person who has committed or has attempted to commit the offence. Then, if the Garda suspects that unless the person is arrested that he will either abscond for the purpose of evading justice or will obstruct the course of justice or, having inquired of the person, has reasonable doubts as to the person's identity or place of abode, or having inquired of the person, knows that the person does not ordinarily reside in the State or has reasonable doubts as to whether the person so resides, he may arrest the person without warrant.

It is only in those circumstances in regard to offences other than offences under section 17 that the Garda can arrest without warrant. He must suspect that the person will abscond unless arrested or that he has given a wrong identity or wrong address or that he is not normally resident in the State or it is not clear where he resides. I think we would all have no hesitation in agreeing that in those circumstances the Garda concerned should have power to arrest the person without a warrant.

Again it is a difficult situation. It is hard to know where the line should be drawn. We do not want to have members of the Garda Síochána going around arresting without warrant at the drop of a hat, as it were. On the other hand, we do not want the Garda to be completely inhibited from dealing with the problem. The Minister has put forward this proposal which, as I say, is in two parts. It deals with offences under section 15, the pushing section, and then it deals with the rest of the offences which arise under the legislation. Two separate procedures are envisaged for these two separate categories of offences. For my part, I am quite satisfied to accept this proposal. It may not work. The Garda may have to go back to the Minister after a period of time and say. "We cannot deal with the problem under this provision. We would like a different sort of power, or extended power." In that case this Legislature will have to look at the position again and consider what should be done.

At the moment, after our discussion and consideration, this seems to be a reasonable way of proceeding. It certainly meets many of the objections which were put forward and, particularly, it makes this important distinction between the two categories of offences, the type of person who is, by and large, in the area of controlled drugs to make money and the other type of person who is involved in the world of drugs for some other less blameworthy, less culpable reason. Again I commend the Minister for his attempt here in this section to meet the situation and to meet the objections and worries which were expressed by different members of the Special Committee when we were considering the original section.

Amendment agreed to.

Mr. Corish

I move amendment No. 29:

In page 20, line 27, to delete ", 16 or 18" and substitute "or 16".

An Leas-Cheann Comhairle

Amendments Nos. 29 and 30 are related and, by agreement, may be taken together.

Mr. Corish

Section 28 relates to the option, in certain circumstances, for persons convicted of offences under the Act of being referred for treatment instead of being sent to prison. The section was introduced primarily in relation to persons who are themselves takers of drugs and who accordingly might need medical treatment, but as the section stands it relates also to persons convicted under section 18 of the Bill, that is, those convicted of forging prescriptions. This was included because a person so convicted is also likely to be a user and thereby have the problems for which section 28 was specifically put into the Bill.

In the debate on Committee, however, Deputy Haughey made the point that if the section were applied to these forgers then it was just as logical to apply it to those convicted under section 17 for illegal cultivation of, for example, cannabis. I accept the logic of Deputy Haughey's point and agree that offenders under section 17 and section 18 should be dealt with similarly in section 28. However, on considering this matter it seems to me wrong that the courts should be obliged to refer a person convicted under either of these sections to a treatment centre. Accordingly, what is proposed by the amendments under consideration is that the court will have the option, but not the obligation, of referring a convicted forger or cultivator to the treatment centre. I hope this modification in the section will be agreed by the House.

Mr. Haughey

Yes, I think it is a useful piece of tidying up here. Section 28 will now be confined to persons who are convicted of an offence under section 3, other than a first or second offence, that is, the cannabis offence— the section which comes under the ambit of section 27—or an offence under section 15. Sections 16 and 18 are taken out of that part of the section and paragraph (b) will now read that "where a person is convicted of a first or second offence under section 3 of this Act in relation to which a penalty may be imposed under the said section 27 (1) (a)"—again that is the cannabis section—or an offence under section 17. Those latter words are brought in under amendment No. 30. This seems to me to be a sensible adjustment of these very useful provisions. Many people hope for a lot from this section and it is an important part of the approach of the legislation to the problem that the court can remand persons convicted to arrange for their medical treatment or care. It is one thing to bring in legislation to control by means of penalties for criminal offences the misuse of drugs, but it is an entirely separate area to try to ensure that some form of treatment is given to those unfortunate people who become involved with this problem.

Section 28 recognises that a person who might be convicted under certain provisions of the legislation might not necessarily be a criminal at all and would be far more in need of care and treatment than of punishment. That is a very important aspect of the general approach of the legislation. I hope it will work out satisfactorily. It is breaking new ground. It is an innovation. We can only hope that this provision will be used carefully by the courts and used fully when necessary to try to ensure that persons are just not convicted, punished and forgotten but if there is in the view of the courts a need to go a bit further and to arrange for medical treatment or care, the courts will be authorised to act accordingly. It is an important section and we all hope that it will have a beneficial effect and that it will work satisfactorily. It may not and may prove in practice inoperable or difficult to operate but we can only do our best, introduce this type of machinery and see how it works out. As far as these amendments Nos. 29 and 30 are concerned they are an improvement because they make the operation of section 28 more sensible.

Amendment agreed to.

Mr. Corish

I move amendment No. 30:

In page 20, line 50, to insert "or an offence under section 17 or 18 of this Act, or of attempting to commit any such offence," before "and".

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 32,33 and 34 are consequential on amendment No. 31 and, therefore, these amendments may be debated together.

Mr. Corish

I move amendment No. 31:

In page 21, line 13, to insert ", but subject to subsection (8) of this section," before "either".

Before the Committee Stage of the Bill I received representations from the medical profession to the effect that the consent of the medical practitioner in charge of the treatment centre should be obtained before he is obliged to accept a person referred to under section 28. I agreed that this would be a reasonable practice when I spoke on Committee Stage and I proposed an amendment which would require the court to satisfy itself that the medical practitioner in charge of the treatment centre agreed that it was appropriate for the person concerned to be received there. The Special Committee, however, thought that this might be going too far and I withdrew the amendment. The amendments I now move are a modified version which leaves the decision with the court as to whether a person should go to the treatment centre or not but which requires that the medical practitioner in charge would be consulted before the court makes up its mind. I think that this, arising out of the Committee discussions, is a reasonable compromise and I recommend it to the House.

Mr. Haughey

All these amendments are acceptable. The principal one is amendment No. 34. The rest are really consequential to enable the new subsection (8) to operate. Deputies who were on the Special Committee will recall the discussions we had on this matter. It was recognised that there was a problem in regard to the institutions to which persons might be committed for medical or custodial treatment. It is all very well for us to lay down that the courts could send persons for treatment to institutions but what will happen if the institution refuses to accept the person? As the Minister has pointed out, we discussed this at some length in Committee and it was very useful for us in that Committee to have as members of it doctors who had practical experience of this sort of thing. It is quite possible to visualise a contretemps arising from the courts committee people to institutions and the institutions either refusing to accept them—not being in a position to accept them—or making difficulties. The Minister had one proposal at the Special Committee and that did not seem to many of us to meet the situation. Now the Minister is bringing forward this proposal which I think is a fair compromise. It indicates that the court cannot operate these committal provisions unless after consulation with, or consideration of a report of, either the medical practitioner in charge of the hospital, clinic, custodial treatment centre or other place concerned or a medical practitioner nominated by that person, it is satisfied that the giving or making of the commission or order would be the appropriate course having regard to the needs of the person proposed to be committed and would not prejudicially affect the ability of such hospital, clinic, custodial centre or other place to provide for the treatment or care of persons.

We have two aspects of it. On the one hand, the court is expected to satisfy itself after some reasonable process of consultation that the committment to the institution would be appropriate to that person. On the other hand, the new subsection (8) is alert to the danger that an institution clinic or centre might not be able to accept the person without interfering with its proper running and administration and without detriment to the existing patients. These are two important aspects of it and we are recognising here that it is not just a matter of the courts in a vacuum arbitrarily ordering that the particular convicted person be committed to a particular institution. There is need for some investigation and co-operation. Investigation, consultation and co-operation are necessary in the interests of the person about to be committed, the institution itself and the people already in that institution. Some institutions which might be thought by the court to be suitable might not, in fact, be suitable to receive a particular person and a person whom the courts would wish to commit to a particular centre or institution might totally disrupt that institution or centre to the detriment of the patients already in it. This is a very sensible provision, well drawn and carefully constructed and should operate satisfactorily. As far as I can see, it gets over the difficulty and meets the situation which we were all aware of when we were talking about this in the Special Committee.

Amendment agreed to.

Mr. Corish

I move amendment No. 32.

In page 22, line 4, to insert ", subject to subsection (8) of this section," before "either".

Amendment agreed to.

Mr. Corish

I move amendment No. 33:

In page 22, to add "subject to subsection (8) of this section," to line 31.

Amendment agreed to.

Mr. Corish

I move amendment No. 34:

In page 22, between lines 43 and 44, to insert the following:

"(8) The court shall not under this section either,

(a) permit a person to enter into a recognisance containing a condition requiring him for medical treatment to remain in a specified hospital, clinic or other place, or

(b) order a person to be detained in a custodial treatment centre,

unless, after consultation with, or consideration of a report of, either the medical practitioner in charge of the hospital, clinic, custodial treatment centre or other place concerned or a medical practitioner nominated by the medical practitioner so in charge, the court is satisfied that the giving or making of the permission or order would be an appropriate course having regard to the needs of the person and would not prejudicially affect the ability of such hospital, clinic, custodial treatment centre or other place to provide for the treatment or care of persons."

Amendment agreed to.

An Leas-Cheann Comhairle

Recommittal is necessary in relation to amendment No. 35 in the name of the Minister, because it involves new matter which does not arise out of Committee proceedings.

Mr. Haughey

Recommittal of the section?

An Leas-Cheann Comhairle

It involves new matter which does not effectively arise out of Committee proceedings. All that is involved in that, is that members may speak more than once.

Mr. Haughey

We will not abuse that. Which section are we recommitting?

Bill recommitted in respect of amendment No. 35.

Mr. Corish

I move amendment No. 35:

In page 24, line 36, to delete "pharmaceutical preparations" and substitute "preparations containing poisons".

This is a technical point and its effect is of no major consequence as far as the section or subsection is concerned. The effect of this change is to widen the scope of the existing section and will enable the Minister to appoint to the Poisons Council a person with a particular expertise in the manufacturing field. The word "pharmaceutical" in the present section has a restrictive effect and the amendment seeks to broaden this so that it will be possible to appoint a person with expertise in the manufacture of any preparation containing poison and not just pharmaceutical preparations. In other words, it will allow me to go further than what is regarded as the chemist.

Mr. Haughey

Does the Minister envisage a person who could have knowledge and experience in the manufacture of pharmaceutical preparations who will not have the same sort of knowledge of the preparations containing poison? We have not got the Poisons Act of 1961 with us here. Are we dealing with the nomination of persons to the Poisons Council?

Mr. Corish

Yes.

Mr. Haughey

The Minister just wants to have the capacity to appoint from a wider section?

Mr. Corish

Yes.

Mr. Haughey

Is there a preparation containing poison which is not a pharmaceutical preparation?

Mr. Corish

Yes.

Amendment agreed to.

Amendment reported and agreed to.

Mr. Corish

I move amendment No. 36:

In page 24, to delete lines 42 to 52 and in page 25, to delete lines 1 to 31 and substitute the following:

"(b) section 14 (3) is hereby amended by the substitution of the following paragraphs for paragraphs (j) to (1):

‘(j) provided for the enforcement and execution of the provisions of the regulations—

(i) by officers of the Minister,

(ii) with the consent of the Minister for Agriculture, by officers of that Minister,

(iii) by the pharmaceutical Society of Ireland and its officer, and

(iv) by health boards and their officers,

(k) enable any such officer (with, in the case of an officer of the Minister or the Minister for Agriculture, a written authorisation of whichever of those Ministers is appropriate, in the case of an officer of the Pharmaceutical Society of Ireland, a written authorisation of that Society, and in the case of an officer of a health board, a written authorisation of the board), at all reasonable times, for the purpose of ascertaining whether or not there is or has been a contravention of the regulations, to enter premises of a class or description specified in the regulations and to inspect any substance or article which is so specified and require the production of and inspect, and if he thinks fit take copies of any entry in, any book, record or other document which is of a class or description so specified,

(l) provide for the taking (without payment) by such officers, with such authorisation, of samples of poisons or such substances for test, examination or analysis,

(m) prescribe the certificate or other evidence to be given of the result of any such test, examination or analysis and the classes of person by whom such certificate or evidence is to be given,

(n) provide that any certificate or other evidence specified under paragraph (m) of this subsection and given in respect of the test, examination or analysis of a sample shall with regard to that sample be evidence for all purposes of the result,

(o) provide for the prosecution of offences under section 17 of this Act in relation to the regulations by the Minister, the Pharmaceutical Society of Ireland or health boards, and

(p) provide for matters ancillary to the foregoing matters.' ".

This is a drafting amendment. The amendment may appear to be lengthy and substantial but the matter involved is only a minor technicality and concerns the numbering sequence of the various paragraphs being inserted in the Poisons Act. There is no change in the wording but only in the way the section is set out, the purpose being to ensure that the alphabetical sequence dovetails with the existing sequence in the Poisons Act.

Mr. Haughey

I cannot find it in my heart to oppose it.

Amendment agreed to.

Mr. Corish

I move amendment No. 37:

In page 27, lines 60 and 61, to delete "(other than regulations under section 32)".

This is also a drafting point consequential on a Committee Stage amendment. Section 32 of the original Bill made provision enabling the Minister to make regulations for the purpose of the Pharmacy Acts. This was amended on Committee Stage and the section as it now stands makes no such provision; consequently the reference to regulations under section 32 contained in section 38 subsection (2) which is a carry over from the original Bill is not now necessary.

Amendment agreed to.

Mr. Corish

Amendments No. 38 and 39 are consequential amendments following on some of the Committee Stage amendments. I move amendment No. 38:

In page 28, line 3, to delete "made under this Act".

Mr. Haughey

Amendment No. 38 seems to be removing unnecessary words.

Mr. Corish

Yes.

Amendment agreed to.

Mr. Corish

I move amendment No. 39:

In page 28, line 4, to delete "by the Minister".

Amendment agreed to.

Mr. Corish

I move amendment No. 40:

In page 28, line 4, to delete "section 3" and substitute "second 8 (8) or an order referred to in section 11 or section 28".

This is another consequential drafting amendment. On Committee Stage an amendment dropped the requirement that draft orders, for example, adding drugs to the Schedule, would have to be laid before the House of the Oireachtas for approval before the amendment could be made. The amendment also provides for the exclusion of certain orders other than statutory instruments from the requirement that they have to be laid before the Houses of the Oireachtas, for example, court orders, which are referred to in sections 11 and 18.

Amendments agreed to.

Mr. Corish

I move amendment No. 41:

In page 29, lines 30 and 31, to insert "and" before "section 33" and to delete ", and section 42 of this Act in so far as it amends that that Act,".

This is also a minor drafting consequential amendment.

Dr. Gibbons

Is the Minister satisfied that he has proper custodial care for all treatment or any treatment that may arise under this legislation?

Mr. Corish

Places exist to which offenders and so on can be referred. At this stage it is not intended to erect special places. There are places available at the drug treatment centre in Jervis Street or specialised psychiatric units in the country or the drug free environment at Coolmine in Blanchardstown. The treatment might be medical or physical in it origin. The treatment could also be educational. I presume these places will be available for the reception of those who would be committed by the court.

Dr. Gibbons

In view of the fact that the director of the institution seems to have some right to express a view as to whether he should take a patient or not, could a dangerous situation arise?

Mr. Corish

In the original section the director could refuse to take a patient but we have amended this so that he would consult the justice or judge.

Mr. Haughey

The judge would consult with him.

Mr. Corish

The judge or justice would consult with him and decide whether or not the patient should be admitted. It could be that the place would be full or the patient would be regarded as one who would disrupt the whole establishment. All of this would be discussed by the Judge and the practitioner in charge of the unit.

Mr. Haughey

The final decision rests with the judge.

Mr. Corish

Yes.

Dr. Gibbons

There is no danger of a situation arising as has arisen with some of the juvenile offenders where there are no places to send them.

Mr. Corish

I hope not.

Amendment agreed to.

Agreed to take remaining Stage today.