On this section, amendment No. 1 is in the name of Deputy O'Hanlon.
Misuse of Drugs Bill, 1984: Committee and Final Stages.
Sections 1 and 2 agreed to.
NEW SECTION.
I move amendment No. 1:
In page 3, before section 3, to insert the following new section:
"3. —Section 12 of the Principal Act is hereby amended by the substitution of the following for subsection (1):—
"12. —(1) The Minister may, with the agreement of any registration authority concerned, make regulations in relation to the constitution and procedure of committees of inquiry, advisory committees or advisory panels established pursuant to section 8 or 9 of this Act.'.".
This section deals with investigation of irregular prescribing by medical, dental or veterinary practitioners. Under the Act at present, the registration authorities established a committee of inquiry to investigate such irregular prescribing. The Minister's proposal now is that in future the Minister will set up this committee of inquiry and the registration authorities will no longer be involved in this.
I do not object to this change because the present arrangement is cumbersome in that the number of stages through which the procedure must go take a long time. If there is a case of irregular prescribing, it should be investigated with a certain amount of speed in the interests of the public generally. What I am concerned about is that whereas formerly the registration authorities investigated the allegation against the person registered and so had an input into the investigation, now they will have no such input. I am proposing an amendment which would give such authority an input into the investigation.
Section 12 (1) of the existing Act states that the Minister may, after consultation with the registration authorities concerned, make regulations in relation to the constitution of procedure of committees of inquiry, advisory committees or advisory panels established pursuant to sections 8 or 9 of this Act. I am now asking the Minister to change that subsection to read that the Minister may, with the agreement of any registration authority concerned, make regulations, and so forth, giving the registration authorities an input into such committees of inquiry.
My main concern is to ensure that the committee of inquiry will have some input from the registration authorities or the representative grouping of the professional practitioner involved. I am aware that at present while the registration authorities do not appoint members of their own authority to these committees of inquiry or to the panel from which the Minister selects the committee of inquiry, they submit to the Minister nominees from the organisation to which the member who is alleged to have prescribed irregularly belongs. I would ask the Minister to consider that amendment.
I will make three points to the Deputy by way of response. First, I would suggest that it may not be necessary to enact this amendment because the existing provisions of section 12 of the 1977 Act are adequate. Section 12 provides that the Minister of the day may make regulations relating to the constitution and procedure of committees of inquiry following consultation — and I would stress that — with the appropriate registration authority. The existing regulations which come under the Misuse of Drugs (Committees of Inquiry, Advisory Committees and Advisory Panels) Regulations of 1979 were made pursuant to section 12, following consultation — and I would stress that — and with the agreement of the Medical Council, the Dental Board and the Veterinary Council. To that extent, the issue raised by the Deputy in respect of agreement is encompassed, in practice, under the regulations.
Secondly, all provisions under this Bill as circulated which relate to irresponsible prescribing were, in fact, drafted by my Department in consultation with the three registration authorities which I have just mentioned, namely the Medical Council, the Dental Board and the Veterinary Council. The provisions of the section were agreed to by them.
Thirdly, I assure the Deputy that when I bring in the new regulations, which will have to be made under section 12 of the 1977 Act, these will be drafted and implemented in the same way as the 1979 regulations, namely I shall consult with and seek the agreement of the registration authorities concerned. In that context, with the assurance given, perhaps the amendment may not be pressed at this stage.
While I accept that the Minister says he will consult with the registration authorities, there is no obligation on him to accept the recommendation or, indeed, to have agreement with them. The Minister said that himself. He said the 1979 regulations were agreed with the registration authorities. I have no doubt that the Minister will, in introducing regulations find agreement with the registration authorities, but we are legislating for a long time into the future and it is possible at some date in the future that a Minister would consult with the registration authorities but then go ahead on his own and introduce regulations which could exclude any input from such registration authorities. What guarantee is there in the future that there would be such agreement with the registration authorities?
There is one further difficulty to which I wish to allude. That is, that it has become apparent to us in our consultations with one registration authority, namely the Medical Council, that they are rather loath to be involved in a statutory way because it might, they feel, prejudice their own powers under the Medical Practitioners Act of 1978. There is a problem facing them in that if there is a prerequisite of seeking their agreement, then the legal proceedings relating to the manner in which their agreement was sought and all the evidence relating thereto might become part of consequential litigation in respect of the disciplinary power exercised by the Medical Council.
The council were anxious — I should put this on record — to maintain an arm's length from the Minister of the day in respect of their powers exercised as a self-regulating profession under the Medical Practitioners Act, 1978. That is another reason why it is important that we should not enshrine in the Bill a prerequisite for agreement as such.
While I accept what the Minister has said about the registration authorities not wanting to be involved, the fact is that they are involved by virtue of section 12. The Minister must consult them. It could prejudice their responsibility under the Medical Practitioners Act if they were involved to any great extent. They are involved in consultation and by inseerting the word "agreement" instead of "consultation", this would ensure that in future there would be agreement with the registration authorities.
Amendment put and declared lost.
Section 3 agreed to.
Sections 4 and 5 agreed to.
SECTION 6.
Amendment No. 3 is an alternative to amendment No. 2. Amendments Nos. 2 and 3 may be taken together by agreement. If amendment No. 2 is accepted, amendment No. 3 may not be moved.
I move amendment No. 2:
In page 7, line 26, after "for life" to insert "or such lesser period as the court shall determine, or, at such discrection, to both such fine and such lesser period of imprisonment".
This is a substantial drafting change. It is necessary according to the advice of the legal advisers in my Department and the parliamentary draftsman. They advised me that subsection (3) (b), as drafted, does not provide for the court to impose on a person found guilty of an offence under section 15, namely, drug pushing under the 1977 Act, both a fine and a term of imprisonment, or a lesser prison sentence than life imprisonment. The amendment would allow the court the necessary discretion. This is the important point.
I am strongly advised that it would not be appropriate to provide for the imposition of both the fine and life imprisonment. There is no precedent for a measure of this nature. To use an unparliamentary phrase, the imposition of a penalty of that nature in relation to drug pushing would be a complete overkill. It is not usual for a fine and a term of imprisonment to be imposed at the same time. The greater penalty, imprisonment, is usually taken to cover more than adequately the lesser penalty of a fine.
Amendment No. 2 makes a change in section 27 of the Principal Act. It is fundamental to the whole question of penalties. We fully support the changes increasing the penalties for offences under the Misuse of Drugs Act. This section deals with penalties for drug pushers.
On Second Stage I spoke about the seriousness of pushing drugs. No mercy should be shown to those who push drugs for financial gain for themselves. One has to make a distinction between them and those who sell drugs because they are already drug addicts. We all recognise that they have a problem. We should be looking at rehabilitation rather than punishment for them. We must show people who make their livelihood by selling drugs to others and creating havoc and devastation amongst communities that we will not tolerate them in our society.
My concern about subsection (3) (b) is that it is changing the prison penalty to imprisonment for life rather than a maximum of 14 years which is the penalty for pushing drugs under the present legislation. The problem is that, over the past number of years, a life sentence in practical terms has been anything from eight to ten years which, in effect, is less than the existing penalty. We want to ensure that anyone who thinks of pushing drugs will see that the penalty we are imposing is much more severe than the present penalty which is a maximum of 14 years. While imprisonment for life is provided for, we should add in "not less than 14 years" so that people will see we are serious about dealing with this problem. Since life imprisonment is anything from eight to ten years, by changing to a maximum of 14 years to life imprisonment, it could appear that instead of introducing a much more severe penalty we are introducing a lesser penalty.
There is a real danger that if we ensure that a person convicted on indictment of drug pushing under section 15 and sentenced to a term of imprisonment has to spend a minimum of 14 years behind bars, the courts would be sending a convicted person to prison for a minimum of 14 years. That would have grave implications which Members of the House would be extremely reluctant to go along with. I want to draw an analogy which may not be entirely popular. To take a popular conception of drugs which may be mythology in some respects, if a student is at a party and he passes a reefer or two of cannibis to a fellow student, if we were to go down the road of minimum mandatory sentences, the judge would have no option other than to sentence him to 14 years. There is a difference under law in terms of severity of conviction between that student and the capture and convicting of a godfather selling heroin worth £500,000 to a network of pushers. Society would have no sympathy for the godfather and would wish the judge to impose the full sentence of the law on him. It is important that the courts should decide on the appropriate sentence. The question of a minimum mandatory sentence is a different matter and it is not usual in our judicial system because it impinges on the discretion to be exercised by the courts in handing out sentences. It is up to the courts to take account of all the circumstances in each case before passing sentence and, as I have pointed out, the circumstances can vary dramatically from case to case.
The penalties for drug offences should continue to be a matter for judicial discretion within the limits of the legislation. That is the best course and it is why I moved amendment No. 2 which provides that it shall be open to the court to determine a lesser period of imprisonment if it felt that is appropriate. Nevertheless we are providing for the prospect of life imprisonment. If a judge passes a sentence of life imprisonment the only way the person concerned can be released is at the discretion of the Minister for Justice. It is well established that after five or six years imprisonment most people become so institutionalised they are incapable of making any further contribution to themselves, their families or to society and that is a situation the Minister has to take into account. It will be possible under this Bill to give a life sentence which could be indeterminate depending on assessment. I would not favour a minimum mandatory sentence in that situation.
Will the Minister accept that in practical terms the average life sentence is ten years or less and that it might be seen we were going soft on penalties for drug pushers? Selling heroin for financial gain is having a disastrous effect on society and on communities, particularly in this city. When one considers the amount of crime committed because of heroin addiction one must give serious attention to this matter. It is important that we be seen to set out sentences that will deter anyone who may be inclined to sell drugs, particularly heroin.
I understand that if the Minister's amendment is passed my amendment may not be moved. I ask the Minister at this stage if there is some other way in which we can make it clear to drug sellers that it will not be tolerated and that we are increasing the penalty from the present maximum sentence of 14 years. For example, would the Minister consider introducing a penalty of 25 years or 30 years as a maximum penalty and then leave it to the discretion of the judge? Drug pushers know that a life sentence means ten years or less.
I stress the point that where a judge sentences a drug pusher to life imprisonment the sentence is indeterminate. At the moment a number of people are serving life sentences of an indeterminate nature. It is true that people have been released after six, seven or eight years but this is done on the basis of a careful assessment. Above all, it is done on the basis that the person concerned is not likely to commit a further crime similar to that for which he was sentenced and also that he is capable of reform. If a drug pusher gets a sentence of life imprisonment it is inconceivable that the Minister of the day would allow him out after six or seven years if that Minister was of the view that he would resume drug pushing. If a person commits a crime of passion or a murder and is sentenced to life imprisonment he may be released after six or seven years. That may be done on the basis that the person had no previous record of violence or he may be wholly reformed and unlikely to indulge in a further crime. In the case of drug pushing the law would take great care not to release a person if it was likely that he would revert to drug pushing.
The flexibility that is necessary is there in the section. A drug addict may, in order to feed his habit, become a proficient drug pusher and he may get a sentence of life imprisonment for the destruction he has wreaked on his fellow citizens. During the course of a lengthy term of imprisonment it may be possible for him to come off drugs and no longer be an addict and he may be released in five, six or eight years and become a reformed member of society. If one were to have a minimum mandatory sentence of not less than 14 years that person might finish up, as would anyone, in my view, after 14 years in prison, in a psychiatric hospital. It is well established that after ten or 12 years in prison a person becomes so institutionalised that he is not capable of being reformed or having any further involvement in society. To that extent, this Bill very carefully lays down the discretion which may be exercised by the court in handing out such sentences. I stress that the 1977 Act did not allow for life imprisonment. I am bringing in the option of life imprisonment for drug pushers. That is a very serious thing to do but, in bringing it in, I cannot put it in such a draconian setting that the deterrent of life imprisonment as a result of a conviction would have no social and penal reform prospect built into it.
Amendment put and declared carried.
Amendment No. 3 not moved.
Amendments Nos. 4 and 9 are consequential on amendment No. 10. Amendments Nos. 4, 9 and 10 may be taken together by agreement.
I move amendment No. 4:
In page 8, lines 29 to 36, to delete subsection (8) and substitute the following:
"(8) Every person guilty of an offence under paragraph (a) or (b) of subsection (ID) of section 23 of this Act, as amended by section 9 of the Misuse of Drugs Act, 1984, shall be liable on summary convictions to a fine not exceeding £200.”.
This amendment is consequential on amendment No. 10 being agreed. Amendment No. 10 deletes subsection (1G) from paragraph (c) of section 9 which provides for an offence in the event of a person obstructing a garda in exercising a power conferred on him by that section. Amendment No. 4 is necessary because we are deleting the appropriate penalty which had been provided in section 6 for the offence in subsection (1G) of paragraph (c) of section 9. I can only convey the intent of this section in a convoluted way.
Why is the Minister deleting lines 40 to 42 in section 9?
The legal adviser and the parliamentary draftsman have advised me that that subsection which makes it an offence to instruct or impede a member of the Garda Síochána in exercise of a power conferred on him by this section is not necessary because of the provision of section 21 (4) of the 1977 Act which reads:
Any person who by act or omission impedes or obstructs a member of the Garda Síochána or a person duly authorised under this Act in the lawful exercise of a power conferred by this Act shall be guilty of an offence and if, in the case of a continuing offence, the impediment or obstruction is continued after conviction, he shall be guilty of a further offence.
Therefore, the provisions in section 21 (4) of the 1977 Act are more comprehensive than was proposed in section (1G) of this Bill and render the inclusion of the latter in the Bill unnecessary.
Could the Minister please explain amendment No. 9?
It is consequential on amendment No. 10 being agreed and amendment No. 10 deletes subsection (1G) of paragraph (c) of section 9. Amendment No. 9, therefore, where we delete "practicable." and insert "practicable',". merely moves the quotation marks and the commas from the end of the deleted subsection (1G) to the end of subsection (1F). It is a tidying-up provision.
Amendment agreed to.
Section, as amended, agreed to.
NEW SECTION.
I move amendment No. 5:
In page 8, before section 7, to insert the following new section:
"7.—(1) Where a person is convicted of an offence to which this section applies, subject to section 8* of this Act, the person shall, in lieu of the penalties specified in the enactments relating to the customs which are for the time being in force, be liable to—
(a) Where the court is satisfied that the relevant controlled drug was imported by the person for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of the Principal Act which are for the time being in force—
(i) on summary conviction, the penalty specified in paragraph (a) of subsection (3) (inserted by section 6 of this Act) of section 27 of the Principal Act,
(ii) on conviction on indictment, the penalty specified in paragraph (b) of the said subsection (3),
(b) where the relevant controlled drug is cannabis or cannabis resin and the court is satisfied that the person imported such drug for his personal use:
(i) in the case of a first offence,
(I) on summary conviction, to a fine not exceeding £300, or
(II) on conviction on indictment, to a fine not exceeding £500,
(ii) in the case of a second offence,
(I) on summary conviction, to a fine not exceeding £400, or
(II) on conviction on indictment, to a fine not exceeding £1,000,
(iii) in the case of a third or subsequent offence,
(I) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or
(II) on conviction on indictment, to a fine of such amount as the court considers appropriate or, at the discretion of the court, to imprisonment for a term not exceeding three years, or to both the fine and the imprisonment,
(c) in any other case—
(i) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or
(ii) on conviction on indictment, to a fine of such amount as the court considers appropriate or, at the discretion of the court, to imprisonment for a term not exceeding seven years, or to both the fine and the imprisonment.
(2) This section applies to an offence against the Customs Acts in relation to the importation or exportation of a controlled drug."
I am introducing this amendment so that a person convicted of an offence under the Customs Acts in relation to the importation or exportation of a court controlled drug may be liable to the appropriate penalties provided for in section 27 of the 1977 Act as amended by section 6 of this Bill. The penalties provided for in section 27 (1) relate to possession of a controlled drug and section 27 (3) which relates to pushing drugs will apply, as appropriate, to offences under the Customs Acts in future. I acknowledge the valuable role which customs and excise personnel play in the fight against drug abuse. They are our first line of defence in that regard and it is essential that they are given adequate powers to tackle the problem at the point of entry. The need to have effective customs control in the fight against drug abuse has been highlighted by the special Government task force on drug abuse and by several Deputies, including Deputy O'Hanlon, who contributed to the Second Stage debate and stressed this point. I propose, in so far as it is possible by legislation in my own area of responsibility, to implement the measures recently recommended as being necessary for more effective customs control. Accordingly, I am introducing amendments Nos. 5, 6, 6 (a) and 11 to the Bill, all of which are designed to enable customs personnel to play a more effective part in the fight against drug abuse and drug smugglers.
A significant shortcoming in the Customs Acts which has been identified by the task force is the inadequacy of the penalties provided for dealing with persons convicted of smuggling drugs. While the powers available to the customs and excise officers are adequate, according to the Revenue Commissioners, the penalties provided for offences under the Acts in relation to the importation or exportation of controlled drugs are completely outdated. This has led to a situation where, instead of using their own powers which carry minimum penalties, the customs and excise personnel have had to call in the Garda in most situations involving illicit drugs because the suspects could then be charged under the Misuse of Drugs Act, 1977, which carried much stiffer penalties. My amendment will remedy that situation and will, in effect, also implement a recommendation of the task force which suggested that the penalties in the Customs Consolidation Act, 1876, and the Misuse of Drugs Act, 1977, should be aligned. This will be a major change for good.
I welcome this new section. As the Minister points out, I and a number of Deputies on both sides of the House highlighted the problem where customs and excise are concerned in relation to the illegal importation of drugs. I welcome this amendment because it goes a step towards improving the situation by introducing the same penalties for offences detected by customs and excise officers, but it does not go as far as I would like. As I have amendment No. 8 down, I will reserve my comments until we reach it.
Amendment agreed to.
NEW SECTION.
I move amendment No. 6:
In page 8, before section 7, to insert the following new section:
"7.—(1) Where a person is convicted of an offence to which section 7 of this Act applies, if, having regard to the circumstances of the case, the court considers it appropriate so to do, the court may remand the person for such period as it considers necessary for the purposes of this section (being a period not exceeding eight days in the case of a remand in custody) and request a health board, probation and welfare officer employed in the probation and welfare service of the Department of Justice or such other person or body, considered by the court to be appropriate to furnish to the court—
(a) a medical report described in subparagraph (i), as amended by section 11 of this Act, of section 28 (1) (a) of the Principal Act, and
(b) a report described in subparagraph (ii), as so amended, of the said section 28 (1) (a).
(2) Where the court makes a request under subsection (1) of this section, subsections (2) to (9) of section 28, as amended by section 11 of this Act, of the Principal Act, shall with the necessary modifications apply as regards the relevant case, and without prejudice to the generality of the foregoing—
(a) each of the references in the said subsections (2) to (9) to section 27 of the Principal Act shall be construed as a reference to that section as applied by this subsection,
(b) the references to a report in subsections (3) and (4) of the said section 28 shall each be construed as including a reference to a report furnished under subsection (1) of this section,
(c) the reference in subsection (6) of the said section 28 to a person's being detained under the Principal Act shall be construed as a reference to detention imposed by virtue of this subsection,
(d) references in subsection (6) or (7) of the said section 28 to a decision or order under subsection (2) of that section shall be construed as including references to a decision or order under the said subsection (2) as applied by this subsection."
Under section 28 of the 1977 Act the court has power to remand persons convicted under section 3 of that Act — namely, for possession other than a first or second offence of cannabis for personal use — and those convicted under section 15 of the Act, namely, pushing, and to obtain a report and in certain cases to arrange for the medical or other treatment or for the care of such persons. As I propose, under amendment No. 5 to apply the appropriate penalties in section 27 of the 1977 Act, as amended by this Bill, to offences under the Customs Acts, it is necessary and desirable that the court may deal similarly with persons charged with such offences and liable now to these penalties.
Amendment agreed to.
NEW SECTION.
I move amendment No. 6a:
In page 8, between lines 42 and 43, to insert the following new section:
"(1) Subject to subsection (4) of this section, in any proceedings for an offence to which section 7 of this Act applies, where it is proved that a person imported a controlled drug and the court, having regard to the quantity of the controlled drug which the person imported and to such other matter as the court considers relevant, is satisfied that it is reasonable to assume that the controlled drug was not intended for the immediate personal use of the person, then for the purposes of section 7 (1) (a) of this Act, he shall be regarded by the court, until the court is satisfied to the contrary, as having imported the controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations referred to in that section.
(2) In any proceedings for an offence to which section 7 of this Act applies, the defendant shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance, product or preparation in question was the particular controlled drug alleged.
(3) In proceedings for an offence to which section 7 of this Act applies in which it is proved that the defendant imported or exported the relevant controlled drug in contravention of the Customs Acts, it shall be a defence to prove that:—
(a) he did not know and had no reasonable ground for suspecting that what he so imported or exported, as may be appropriate, was a controlled drug, or
(b) he believed the relevant substance, product or preparation to be a controlled drug, or a controlled drug of a particular class or description, and that, if the substance, product or preparation had in fact been that controlled drug or a controlled drug of that class or description, he would not at the material time have been committing an offence against the Customs Acts.
(4) In any proceedings for an offence to which section 7 of this Act applies a defendant may rebut the presumption raised by subsection (1) of this section by showing that at the time of the alleged offence he was by virtue of regulations made under section 4 of the Principal Act lawfully in possession of the controlled drug to which the proceedings relate.
(5) In any proceedings for an attempt to commit an offence to which section 7 of this Act applies the defences mentioned in subsection (3) of this section shall, with the necessary modifications, be open to the defendant.
(6) Subject to subsection (2) of this section, nothing in this section shall prevent a person raising a defence which, apart from this section, would be open to him to raise in proceedings for an offence to which section 7 of this Act applies."
I thank the House, the staff of the House and my colleague, Deputy O'Hanlon, for agreeing to amendment No. 6a. This is another amendment which has been sought by the Revenue Commissioners. Under the Misuse of Drugs Act, 1977, section 29, which relates to defence generally, applies to offences committed under section 3, possession, and section 15, pushing, of that Act. As I propose to apply the appropriate penalties in section 27 of the 1977 Act, as amended by section 6 of the Bill, to offences under the Customs Acts relating to the importation or exportation of a controlled drug, it is necessary and desirable that similar provisions as are in section 29 of the 1977 Act should also apply to customs offences. This is what I am providing for in this amendment.
Amendment agreed to.
Section 7, as amended, agreed to.
NEW SECTION.
I move amendment No. 7:
In page 9, before section 8, to insert the following new section:
"8.—Section 19 of the Principal Act is hereby amended by—
(a) the insertion in subsection (1) after `vessel' in each place in which it occurs of `or licensed premises'; and
(b) the insertion in subsection (2) after `vessel' in each place in which it occurs of `or licensed premises'.".
Section 19 (1) of the Principal Act states that "a person who is the occupier or in control or is concerned in the management of any land, vehicle or vessel and who knowingly commits or suffers any of the following to take place on the land, vehicle or vessel, namely", and it goes on to list a number of offences such as the preparation of opium, the manufacture of controlled drugs, the importation and the sale of controlled drugs and so on. That section relates to anyone who is in charge of land, vehicle or vessel. My amendment asked the Minister to include in that subsection and also in subsection 19 (2) the words: "or licensed premises" after "vessels" to ensure that a person who is in charge of a licensed premises used for any of these purposes, and particularly for the sale of controlled drugs, should also be guilty of an offence similar to those who are in control of land, vehicle or vessel.
I have every sympathy with Deputy O'Hanlon and agree with the general import of his observations. When the point was originally raised I wondered why specific reference had not been made to licensed premises. However, on checking the matter with my legal adviser and the parliamentary draftsman it was put to me that the phrase "licensed premises" was not necessary because the word "land" is specifically used in section 19 of the 1977 Act. "Land" is defined in the Schedule to the Interpretation Act, 1937, to include "houses and buildings of any tenure". On that basis licensed premises as such are included.
May I draw the attention of the House to the fact that the definition of "land" is being extended in section 10 of this Bill to ensure that structures such as tents and caravans are encompassed but the traditional and conventional definition of "land" which includes houses and buildings of any tenure, and as such the concept of a licensed premises is encompassed in the original 1977 Act.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
I move amendment No. 8:
In page 9, between lines 19 and 20, to insert the following:
"(a) the insertion in subsection (1) after `Garda Síochána' of `or an officer of Customs and Excise';
(b) the insertion in subsection (2) after `Garda Síochána' of `or an officer of Customs and Excise';".
This section deals with what we see as the most serious defect in the Bill because it does not give effective powers to the customs and excise officers to play their part in preventing the illegal importation of drugs. We all recognise that the vast majority of drugs sold on the streets are imported. I know cannabis is grown here but heroin, which is the most used drug in this country at present and is very harmful to addicts' health and to society in terms of crime and illness, is imported. We do not manufacture heroin here. The bulk may be imported in very minute amounts and it is obvious that if we have effective control at all points of entry to prevent the importation of heroin we would not have any problem.
I accept it is unrealistic that customs officers could detect all heroin imports but there is no doubt that if they had more powers they would be in a position to find more of the drugs being imported illegally. There is no doubt that there has been an increasing amount of illegal importation of all drugs. Whereas formerly the vast majority of drugs for illegal use here were stolen from chemists' shops there is now good security in that regard and in regard to hospital pharmacies and other places where drugs are stored.
The problem has escalated in the past seven years not only here but throughout the world. In 1977 here there was one seizure of heroin but in 1981 there were 170 seizures. The cannabis seizures have risen from 107 in 1977 to 430 in 1981. The traffic is increasing throughout the world. In 1982 as much as 560 tonnes of cannabis was seized throughout the world. That indicates the size of the problem.
Therefore, it is important that we should look at all ways in which we can give more powers to customs officers to ensure that as far as is practically possible the importation of drugs illegally will be stopped. For instance, the Minister for Finance has no responsibility in regard to the task force although it is an area in which there is a sharing of responsibility between various Ministers. The Minister for Finance has responsibility for the Revenue Commissioners and Customs and therefore should have a major role to play in the matter of drugs. If we are to deal effectively with illegal importation, most of which is through air and sea ports, we could make it much easier to have the problem dealt with if the Minister for Finance took a major role to ensure that Customs will have power and authority to deal with persons who import drugs illegally.
Amendment No. 8 in my name asks for the powers given to the Garda Síochána in section 9 be extended to customs officers.
I have considered the amendment carefully. We have consulted with the Revenue Commissioners and they are satisfied that the powers available to them now are adequate. The general view was that the penalties needed to be updated and in amendment No. 5 I specifically provided for this. I emphasise that customs officers already have powers of search and arrest. These powers exist under customs legislation but they have not been able to avail of these powers because of the inadequate penalties. This point was made very clear in a recent report of the Select Committee on Crime, Lawlessness and Vandalism.
That is why I arranged to apply the penalties of the Misuse of Drugs Act, 1977 to offences under the Customs Acts. That will enable customs officers to avail of the updated penalty.
There is a further and more serious reason why I would be reluctant to amend the section as suggested. It would be a major policy change of an exceptional nature and possibly would create a doubt as to where ultimate authority exists. If we give parity of powers there would be a doubt as to which agency had precedence over another and which agency would be the most appropriate in regard to enforcement in a given case. So far, the Garda and the customs officers have been working in co-operation and we are not aware of any major problems between them. However, problems could arise if we give parity of operation as proposed in the amendment.
If a major drugs pusher was caught bringing in drugs and was arrested by a customs officer it could be part of his defence that the arrest should have been done by the Garda and a dispute could arise about who had authority to arrest the pusher in the first instance. There are many smart senior counsels knocking around who could raise major hares of that nature. This matter would come within the ambit of the Minister for Justice and would require a very special investigation in regard to law enforcement and constitutionality. That is not to say that when it comes to their precise function, namely customs and excise — the control of the import of drugs comes under that — they do not have powere of arrest and search. The powers of the Garda Síochána are much wider and to extend them to these officers would open up an area of considerable difficulty.
While I accept what the Minister has said, that this would mean a policy change, we should not be afraid of a policy change if it is necessary because we are dealing with an exceptional problem. If it is necessary to implement policy changes in relation to the enforcement of law and order that is what the legislation should be about. We must ensure that controlled drugs are not imported illegally. If we can do that effectively we will be dealing with the problem we face. The only way we can achieve anything near success is to give powers to the officers of customs and excise.
Yesterday the Select Committee on Crime, Lawlessness and Vandalism in the course of their report dealt with the role of officers of customs and excise and controlling the supply of illegal drugs. That report, which was adopted unanimously, recommended that sections 23, 26, 27 (1) and (3), 28 and 29 should be extended to officers of customs and excise. While I accept that the Minister tonight amended some of those sections, I do not think he went far enough to ensure that those officers have the power to deal with offenders.
The Select Committee recommended at 5.2.3:
Once the provisions of the Misuse of Drugs Act, 1977 are extended to officers of Customs and Excise, they should be free to immediately arrest and charge a person found to be smuggling drugs at a point of entry to the country. It will be necessary to ensure continued close co-operation and liaison with the Garda Drugs Squad as, in certain cases, it may be considered more appropriate not to detain and arrest a suspected smuggler so as to give the Garda the opportunity to catch other persons involved in the supply of drugs.
We all agree that there must be close co-operation between those charged with ensuring that this problem is eliminated from our society. The Select Committee went on to state at 6.1:
They [officers of Customs and Excise] should have similar powers to those of the Garda if they are to have a realistic chance of trying to deal with the problems of drug smuggling.
Referring to section 23 of the 1977 Act the Select Committee pointed out:
Under existing legislation officers of Customs and Excise do not have the necessary authority to search a person who has not landed from a ship or aircraft.
That is another area where those officers should have power if they are to deal with the problem under discussion. The Select Committee went on to make the point at 6.3:
A Customs Officer may not legally attend or assist, in his capacity as an officer of Customs and Excise, at a search under such a warrant.
That refers to a warrant given to a named member of the Garda Síochána under section 26. At 8.1 and 8.2 the Select Committee stated:
Section 186 of the Customs (Consolidation) Act, 1876 authorises officers of Customs and Excise to arrest and charge persons suspected of customs offences. The Revenue Commissioners have issued a direction prohibiting the exercise of this power without their prior consent.
If we want to deal realistically with this problem this is the best opportunity to improve the law to deal with the area of illegal importation of drugs. In this legislation we are not going far enough. My amendments suggest other ways and are in keeping with the report of the Select Committee who suggest that officers of customs and excise be given the necessary powers to deal with offenders found at the point of entry to the country.
If it is the wish of the House that the Bill be amended in the way suggested by Deputy O'Hanlon the way to do so is through the Customs (Consolidation) Act, 1876, the Act which details the powers of officers of customs and excise. Any change in that Act must be done within the framework of the Garda Síochána Acts because clearly there is an inter-relationship. As the person responsible on the Health side for drugs legislation — I am not shuffling off the point made or trying to evade any statutory responsibility on the issue — I have effectively updated the penalties. The Revenue Commissioners who were loath to see the officers exercising their full powers under their present statutory position are in a different position now because the Misuse of Drugs Act sets down a parity of penalty. For that reason this opens up a whole new can of worms as it were; it opens up a major area. I cannot accept the Deputy's amendment in spite of the excellent report produced by the Select Committee on Crime, Lawlessness and Vandalism. Their report should be directed more appropriately at the Minister for Justice or the Minister for Finance. I have very little function in that regard.
The Minister has raised a fundamental issue, the kernel of the problem as to why we are not dealing effectively with the very serious drug problem. He has stated that it might be more appropriate for the Minister for Finance or the Minister for Justice to deal with this amendment under the Customs (Consolidation) Act and the Garda Síochána Acts. The reality is that when our spokesman on finance put down an amendment on the Finance Bill it was ruled out of order because, he was told, it was not appropriate to the Minister for Finance. The Government must find a way of ensuring that there are no loopholes in our legislation which will allow people to break the law in relation to the misuse of drugs. The question of importation is fundamental. Neither the Minister for Health nor the Minister for Finance accepts responsibility and, as far as I know, it has not come before the Minister for Justice. If each Minister is able to say that it would be better for another Minister to deal with it, then we will never come to grips with the problem. I would ask the Minister to see if there is some way under this legislation to give the powers to customs officers which the Select Committee on Crime, Lawlessness and Vandalism want them to have.
I will bring the views of the Deputy to the attention of both the Minister for Justice and the Minister for Finance. He might find an ally in that setting but not under this Bill.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 10, paragraph (c), line 39, to delete "practicable." and insert "practicable.',".
Amendment agreed to.
I move amendment No. 10:
In page 10, paragraph (c), to delete lines 40 to 42.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
I move amendment No. 11:
In page 11, paragraph (c), lines 13 to 15, to delete "together with such other persons (if any) named in the warrant, accompanied by such other members of the Garda Síochána" and substitute "accompanied by such other member of the Garda Síochána and such other persons".
This amendment is to take account of advice recently received from my legal advisers. I am advised that the paragraph as currently drafted is too inflexible. Section 26 (2) of the 1977 Act did not provide for anyone other than a member of the Garda Síochána to accompany the garda whose name was specified in the search warrant. However, the Garda have found that in many cases where search warrants have been executed it has been felt necessary or desirable to have a scientific expert accompany them, very often somebody from the forensic science laboratory or a customs and exise officer. When the garda applies for a warrant he may not know who the appropriate people are who will accompany him on a particular search. Under the 1977 Act there was no need to specify the names of the accompanying gardaí in the warrant. This amendment removes the need to specify in the warrant the names of the other persons accompanying the garda for these reasons.
This provision will certainly facilitate the involvement of customs and excise personnel in searches for illicit drugs and it is a provision which has been recently sought by customs officers.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
SECTION 12.
Amendments Nos. 12, 13 and 14 may be taken together.
I move amendment No. 12:
In page 14, paragraph (c), line 15, to delete "and".
These are drafting amendments which take account of an amendment which should have been in the Bill as circulated. The reference to advisory panels is being deleted from section 12 (1) of the 1977 Act by virtue of section 12 (d) of this Bill. As there is also a reference to an advisory panel in section 12 (2) of the 1977 Act, it is necessary to delete this also. The reference is being deleted as it is no longer appropriate. Advisory panels are not provided for under the new irresponsible prescribing provisions contained in sections 3 and 4 of this Bill. Amendments Nos. 12 and 13 are minor consequential drafting amendments because of amendment No. 14.
Amendment agreed to.
I move amendment No. 13:
In page 14, paragraph (d), line 17, to delete "section 12 (1)." and substitute "section 12 (1); and".
Amendment agreed to.
I move amendment No. 14:
In page 14, between lines 17 and 18, to insert the following new paragraph:
"(e) the words `or advisory panel' in section 12 (2)."
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
Has the Minister's attention been drawn to a recent case against four defendants which was dismissed by Judge Gleeson on the basis, I understand from the newspapers, that the regulations drawn up by the DPP were not in accordance with the 1977 Act? Would it be necessary to bring in any further amendment on Report Stage to regularise that situation?
It was not intended. It was hoped that we would have Report Stage this evening so that the Bill could be brought before the Seanad next week. We had not intended to draw up regulations in that regard.
Is there any facility whereby the Minister would be able to introduce an amendment in the Seanad if it was considered necessary to close this loophole? My understanding is that it concerns regulations but it should be looked at in the context of this Bill.
I will bear in mind what the Deputy has said and consider it between now and next week.
Question put and agreed to.
Title agreed to.
Bill reported with amendments and passed.
The Dáil adjourned at 12 midnight until 2.30 p.m. on Wednesday, 10 October 1984.