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Dáil Éireann debate -
Wednesday, 9 Dec 1987

Vol. 376 No. 6

Private Members' Business. - Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987 [Seanad]: Committee Stage (Resumed).

Debate resumed on amendment No. 1:
In page 3, subsection (1), line 18, to delete "for the time being".
— (Deputy Noonan,Limerick East.)

Before the Adjournment for Private Members' time I asked the Minister to let us know how many customs officers at any one time were employed at the ports and airports of the State. I further asked the Minister to indicate whether the powers which this Bill was proposing to confer on customs officers, and any other persons who may at any time be given that job, were powers they would carry at all times similar to a Garda Síochána, who is a Garda Síochána at all times and has the right to exercise his authority at all times. Will a customs officer have these powers only when on duty or will he carry them at all times?

I wonder if the Minister of State actually heard the Deputy because there was quite a lot of commotion? The House was not as orderly as I would have wished.

To repeat very briefly, I ask the Minister the number of customs officers employed at any one time; in other words, the number of people on whom we are conferring powers under this Bill. I also wish to know whether the customs officers concerned will carry the powers at all times or whether they will only be entitled to exercise them while on duty? For example, if their period of duty is from 8 a.m. to 6 p.m., will their powers only be conferred on them for that period or will they have the powers 24 hours a day and have the right to exercise them at any time, even though they may not be in uniform or on duty specifically in the port at the particular time?

There are approximately 2,000 Customs and Excise staff, 700 of whom are field office staff in the front line daily throughout the year. We will be conferring the powers on the 2,000 staff in line with the Misuse of Drugs Act. In tandem with the legislation pertaining to drugs in the Misuse of Drugs Act, we will be conferring the same powers on the Garda Síochána, the Defence Forces who would be present on any given occasion on the front line assisting in the enforcement of Customs and Excise law, the Misuse of Drugs law or whatever other laws they would be operating under or for whatever reasons they would be there. We are conferring the powers on the Customs and Excise staff, comprising 2,000 in all, with 700 in the front line and on those who assist them, the Garda Síochána and the Defence Forces. The powers will be automatically conferred on them as officers of State.

Perhaps I may remind the Minister of Deputy De Rossa's other question, which is very important. Once conferred with the powers, will the principle apply of once a customs officer, always a customs officer, whether on duty or not? That principle applies to members of the Garda Síochána and whether on duty or not they are vested with all of the powers conferred on them by law, statute or otherwise. Perhaps the Minister might indicate if this is so before I make my further observations on the amendment as it stands.

(Limerick East): I am curious about the Minister of State's remark that the powers extend not only to members of the Garda Síochána but all members of the Defence Forces on the grounds they are officers of State. That is not what the definition section says. I wonder how members of the Defence Forces or the FCA from time to time involved in these activities could be empowered under this Act?

For a moment I thought Deputy McCartan was getting biblical, once a customs officer, always a customs officer.

Once a policeman, always a policeman.

Yes, and it would be the same situation. We would expect that customs officers, working as servants of the State — it would be the same with members of the Defence Forces — representing an organ of State in the execution of duties on behalf of the State and its people should be and would be vigilant and on observing at any given time suspicious happenings would take the necessary action to inform their colleagues who should then take appropriate action to deal with any given situation whether it be the customs officers or the Garda Síochána, depending who is closest to the vicinity at any given time.

(Limerick East): Instead of answering my anxiety the Minister is making me more anxious. The Minister appears to say that members of the Defence Forces and/or the FCA could be designated from time to time as members of the public service who in the course of their duty would be expected to prevent the illegal importation or exportation of goods. However, there is another principle by which we work and that is that the Defence Forces will only be involved in aid of the civil power. If the Minister is correct, he envisages a direct role for the Irish Army and for the FCA, not in the aid of the civil power but acting directly and exercising all the powers of the Bill on their own at any time anywhere in the State provided they are involved in the activity of preventing the illegal importation or exportation of goods.

I am quoting exactly the law as it stands, Deputy. I will quote it again: The Customs officer or any

"Officer" means an officer of Customs and Excise or any person acting under the orders of such officer, or any member of the Garda Síochána or Defence Forces assisting such officer;

For the purposes of this Bill an officer is a member of the Customs and Excise's 2,000 staff, is a member of the Garda Síochána or is a member of the Defence Forces assisting in any situation at that time, but it does not confer powers on the Defence Forces in an open manner. It does it in a confined manner when they are present actively supporting and assisting customs officers in the execution of their duties. It is only then that the powers are conferred on them.

(Limerick East): The definition section states that an officer of Customs and Excise includes a member of the Garda Síochána and then refers to any member of the public service etc. There is no mention of the Defence Forces. Is the Minister now saying that the definition should state that an officer of Customs and Excise includes a member of the Garda Síochána or any member of the Defence Forces and any person?

I am stating what the Customs and Excise Acts define an officer of Customs and Excise to be.

(Limerick East): That is all very well but this Bill is conferring new powers on Customs and Excise officers and I presume that the power is confined to officers of Customs and Excise as explained in lines 17 to 19. I cannot see how that includes members of the Defence Forces. I do not follow it. It adds greater anxiety to the point I made earlier. Is it the situation that any public servants who are instructed to prevent the illegal importation or exportation of any goods will be conferred with all the powers contained in this Bill, even if they are only acting as such for an hour, a day or a week?

I want to take up the Minister's earlier remarks. I accept his definition of customs officer for the purpose of the Acts of 1942 and 1956 and the fact that the definition there includes a person acting on the order of a customs official or a member of the Garda Síochána or the Defence Forces acting in support. I can fully appreciate in operations in certain locations, particularly along the land frontier, the importance of having the back-up assistance of members of the Defence Forces and the Garda Síochána. Am I not correct in thinking that in this new Bill, which is conferring wide-ranging new powers on Customs and Excise officers, a specific definition is being sought to be introduced exclusively for the working of this Bill?

It includes a member of the Garda Síochána and any person in the public service who for the time being is employed in the prevention of the illegal importation or exportation of goods. Am I correct that we are talking about this definition in the context of this Bill only and that it is only on these people that the powers contained in the Bill will be conferred? I ask the Minister to clarify the point made by Deputy Noonan. It extends this Bill well beyond first observations to suggest that the powers it contains would be available to members of the Defence Forces.

The amendment is designed to delete from the group of persons to be considered entitled to these powers those who are working on an ad hoc or temporary basis. The Minister tells us that the core group of workers within the Customs and Excise amounts to about 2,000 people, 700 of whom are on active frontline duties. I understand that some of these 700 are out on the road at frontiers, actively involved in detecting smuggling, and other officers are confined to buildings at airports, ports and elsewhere, engaged in occasional spot checks. I also understand that these people are differently organised, work under vastly different conditions and consider themselves as carrying out very different duties.

I have had discussions with a number of staff members on an informal basis in the context of this Bill and I understand that those who are engaged in searching through baggage at airports and ports do not consider themselves concerned with the provisions of this Bill. If that view exists throughout the Customs and Excise there will be unbelievable chaos, especially if the typists, the clerks and the other 1,300 non-frontline workers are to be considered part of the back-up group entitled to use these powers. Many of these people will wake up tommorrow morning worried that they are now the conveyors of the remarkable powers given under this Bill. The Minister has told us that the definition could apply to all members of the staff in the Department of Finance and perhaps to any employee in any Department whenever the occasion would call for it.

(Limerick East): Even when they are off duty.

Yes. In law an off-duty member of the Garda Síochána has an active duty to prevent and detect crime whenever he or she observes it. Is the same onus to be visited upon members of the Department of Finance or of any Government Department who for the time being are considered to be engaged in the operations of this Bill?

The more the Minister talks the more I believe the amendment deserves support, for two fundamental reasons. We need to clarify exactly who are to be included and to emphasise that it is not the definition contained in the 1942 and 1956 Acts that will apply. Secondly, we need to clarify that it will not apply to people who are brought in for the time being to cover an emergency. It is regrettable that the Minister has sought to suggest to introduce the word "draconian" into the debate. I am happy to see that Deputy Noonan of Fine Gael has taken that one squarely and we will do so if asked to provide a definition. No one can say but that these powers are draconian though necessary. It must be emphasised throughout this debate that there is no amendment from any Member of the House seeking not to confer or to create these powers.

We all agree, because of the situation that exists, that the powers should be created and made available. I hope we are not to be distracted by any suggestions in regard to this or, indeed, any other amendment, that we are seeking to do down the work envisaged in the Bill. We are seeking to tidy up the Bill and introduce safeguards where we believe they are necessary. The previous Government spent upwards of a year or more debating the whole issue in the context of the Criminal Justice Act in regard to members of the Garda Síochána. In the debate on the conferring of powers it was accepted that there should be a balance or a counterbalance safeguard procedure built in. This amendment is in the same context.

If one looks at the history of the powers of arrest, search, detention, retention of property and invasion of the home one does not have to go too far back in time to a stage when very few people had the power; it was the king's prerogative and his lieutenants only who could ever invade or interfere with the right to freedom of property of the servants of the State. The development of police forces is a recent phenomenon. Generally the fundamental position is that every person is entitled to their liberty, their property and to freedom from unwarranted interference such as search; that is the first premise. It is with reluctance and only for exceptional reasons and concerns that society has ever given rights to individuals, such as the police or others, to interfere with these basic freedoms. Look at what we have done with regard to the Garda Síochána, the cornerstone of policing in civil society. We oblige the Garda to wear a uniform. We oblige them to carry numbers on their shoulders. We oblige them to carry cards of identity.

In one part of the country, I would remind the Deputy.

I am lost entirely on the significance of that but the Minister can explain it later.

I am surprised at the Deputy who is based in Dublin.

I take the Minister's correction now. My understanding was that members of the Garda Síochána, throughout the country, carried numbers on their shoulders. I am sure I have met gardaí outside Dublin who had numbers on their shoulders. The Minister says "no" while his officials, apparently, are saying "yes". The Minister had better consult before we get stuck on that.

The point is that we require every one of them to carry an identity card, with name and photograph. That is because every time a citizen is confronted by them they are entitled to be absolutely certain as to whom they are dealing with and that that person has the authority and power to do what he or she purports to do. The citizen is entitled to immediate recourse to name, number, rank or position if called on by a garda. Even in our most draconian legislation such as the Offences Against the State Act it is specifically and explicity laid down that a member of the Garda Síochána when requested, must produce identity. All these practical realities are built in as safeguards recognising that it is exceptional, in any circumstances, to allow a citizen — a member of the Garda Síochána — to stop, to question, to search, to detain or to retain property belonging to another citizen. For those reasons it must be accepted that giving powers to members of society, other than the Garda Síochána, is extraordinary and are draconian in measure. It is essential that we are absolutely clear as to whom we are giving these powers. This debate has opened up a huge area of concern in terms of who is immediately considered to be included. Deputy Noonan is probably correct, perhaps his amendment does not go far enough, but it is a useful one nonetheless. We might be well employed between now and Report Stage looking more closely at a proper definition.

One of the points the Minister has made is that he wants a flexible regime. I should like to say that in the area of extending powers of arrest, detention, search and retention of property belonging to a citizen a flexible regime is not desirable in the common good. It is not good that unidentifiable people can drift in and out of a situation where these powers can be exercised and where an innocent member of the public will be involved. It is not desirable that a member of Customs and Excise staff can make the decision that it is time to call in extra support by way of staff from wherever within the departments available to them.

In all our legislation in this area the Garda Síochána, the cornerstone of civil policing, are obliged to go to the armed forces. If you look at the Emergency Powers Act, 1976, they must do so through the office of a chief superintendent or one of the higher rank. It is considered in the context of emergency legislation a matter of such importance, and such a departure from the norm, that high ranking officers alone are entitled to take these steps and must prepare memoranda to that effect.

If must be of concern that the definition which is opening up in this debate is far too wide. Central to the arguments which will come later in regard to some of the amendments the Workers Party will be pursuing is the point that the Bill tends to lose sight of the fact that in any area of policing the first line of recourse must be to the Garda. Recognising that Customs and Excise officers have a particular duty to do at the frontiers of our State — airports, ports and land frontiers—it is important that they are equipped with all the powers they need. If they are pushed back, either outside of their usual place of work or if they are put into a bigger operation than they would usually be expected to cope with, the recourse must be to the Garda and not to the assembly of some motley crew, of for the time being officers who will come to their aid and will head off in pursuit of the powers this Bill gives them.

What is being given to officers in sections 2 and 3 of this Bill must be briefly emphasised. In the Seanad, as the Minister is well aware, the point was made that in a country as small as ours we are virtually talking about the whole of the country so far as section 2 is concerned. In sections 2 and 3 we are providing powers to stop persons in the vicinity of a port, airport or land frontier, to search and to detain for an unspecified period for the purpose of searching, to arrest where non-compliance arises and to retain property taken from a person suspected of involvement in the commission of an offence.

In section 3 they are given the power by a district justice or a peace commissioner to enter the property of any person anywhere in the State and search, seize and detain the substance, article, document and so on. Those are the powers we are giving Customs and Excise officers under the provisions of this Bill. I will make the point yet again, lest I be misinterpreted. Nobody contends they should not have those powers; unfortunately they are necessary. It is essential to reiterate that not alone are the powers draconian and wide-ranging but the extent of the people on whom we are conferring them amplifies all of that. We are asking for a very small gesture on the part of the Minister in the balancing of powers and safeguards, which is, that he would specify much more carefully the persons on whom such powers would be conferred. If it comes down to numbers I would suggest that the staff of 700, backed up by a fully equipped, well learned, and active police force of almost 12,000 is numerically sufficient to deal with the problems it is envisaged the provisions of this Bill will have to deal with.

I hope the Minister will take on board the genuine concerns of Members pursuing this amendment and give it consideration at this stage.

Of course I take on board the genuine concerns of Deputies and thank them for their contributions. I should not like any confusion to arise. We do not propose to have a major overhaul or to implement a major change in the functions of Customs and Excise officers. We have 700 uniformed staff on the front line. We propose to confer these powers on them. We have a small number of staff in the investigations branch, ununiformed, and we propose to confer these powers on them. We are dependent on other agencies and organs of State for support and back-up services and for professional assistance and advice in particular circumstances. The provisions of the Bill confer on the Garda the same powers they have under the provisions of the Misuse of Drugs Act, 1977. The provisions of the Bill also confer on senior officers of Customs and Excise the right to be able to designate, at the land frontier, similar powers to members of the Defence Forces in a given situation.

There must be allowance for flexibility. In the case of agricultural or health matters specialist staff from the Departments of Agriculture and Food and Health— and here we are talking about perhaps one to four — may be called in on foot of certain information and come through to adjudicate on a particular circumstance pertaining to goods prohibited from entering the country. Therefore, we are talking only about the powers being conferred on a certain section.

I know Deputy Noonan understands this fully but I want to assure Deputy McCartan there is no danger in the world that we are conferring powers on, say, typists, clerical assistants, clerical officers and so on. We are not doing that. They are not in the front line of activity.

I was asked a question about the number of staff we have. I told the House the number we have. I have told the House the staff we have on the front line. We must synchronise the powers under this Bill with those contained in the Misuse of Drugs Act, 1977, taking into account the definition of officers of Customs and Excise and the various other ranks. It is a very clearly defined position. We are not talking about conferring of powers ad lib across a whole range of the public service which they never had before. It is very clearly defined — Customs and Excise officers on the front line with a right to senior Customs and Excise officers to designate certain key personnel at any given time, in the event of certain eventualities only.

(Limerick East): I accept everything the Minister says about his intention and that of his Department. We are not questioning the motives or intentions of the Government, the Cabinet, the Minister, the Department or of the Revenue Commissioners. All we are questioning is the manner in which the definitions section is drafted.

With respect, regardless of the Minister's intention and on whom he proposes to confer these powers, it will be this House and this Bill, when it becomes an Act, which will confer the powers. The Minister will have no control over the exclusion of anybody from the exercise of those powers if they are given those powers under the Act.

The Minister has just said one extraordinary thing, at least it sounded extraordinary to my ears. He said that he would envisage that senior officers of Customs and Excise working at the land frontier, would have the authority to confer such powers on members of the Defence Forces. That is an extraordinary statement. I do not accept for one moment that the provisions of this Bill do that. I cannot envisage circumstances, under this definitions section, in which a senior Customs and Excise officer on the Border can, one morning, say to 25 soldiers: "You are now, for the time being, involved in the prevention of illegal importation or exportation of goods and, consequently, you have all the powers under the 1987 Act, even the powers to search". I do not envisage circumstances in which a member of the Irish Army will have the power to search an individual person. I do not think the provisions of the Bill, as drafted, intend that. The Minister has just said what he has said which would bring about what to my mind would be an extraordinary situation. I am very unhappy about this. The matter has been very well aired. I ask the Minister to reflect on it again.

I will not press this amendment this evening but I will certainly put down an amendment on Report Stage, either this one or, on consideration one along these lines to meet the fears I have expressed. I hope the Minister with his officials, on consideration also, will come back and meet the points we have raised.

This is a tough Bill. One has to be tough with people who are smuggling drugs. One has to be tough with smugglers in general. There is no objection about that. But there is a duty on us to ensure that we know what we are doing. That is the minimum requirement of a legislator, to know what one is doing, to know precisely on whom one is conferring powers, and the exact nature of those powers. That was my intention in tabling this amendment. It has been well aired and I shall be returning to it.

May I take it that the amendment in the name of Deputy Noonan (Limerick East) is withdrawn? Is the Deputy withdrawing his amendment?

(Limerick East): With the leave of the House I ask permission to withdraw it.

Before it is formally withdrawn may I seek clarification on two points from the Minister? What the Minister has told us needs clarification. The Minister says that the powers conferred under the provisions of the Bill will be available to 700 and a small number of un-uniformed officers. Then he went on to say that the powers would be available to senior Customs and Excise officers at the land frontier to call in members of the Defence Forces. Is that stated specifically anywhere in this Bill, or is the Minister stating how he would envisage the provisions being implemented? Is that in legislative form or is it an intention the Minister is indicating to us which will be the manner in which the provisions of the Bill will be implemented in the future?

(Limerick East): It seems to me that the Army would come in in aid of the civil power, whether it be the Garda or Customs and Excise officers, as they have done to date, that they would not have direct contact with the public and would not exercise the powers conferred under the provisions of this Bill. They would be there performing a protective role in aid of the civil power. But that is not what the Minister has said or anything like what he has said. It warrants the Minister's clarification being put on the record.

I will be only too delighted to clarify the matter. I regret if I created any confusion. In reply to a point made earlier by Deputy McCartan — when he talked about identification by the Garda, clear identity and so on — Customs and Excise officers have to have the same thing. They all carry their identification, the commission is conferred on them by the Revenue Commissioners in exactly the same way as the Garda. What I hope I said — but perhaps it was misinterpreted — is that Customs and Excise officers working at the land frontier would have the right to call on the Defence Forces to come to their aid, to assist them, not conferring powers of search or anything like that on them. These powers are specifically conferred on the Customs and Excise officers by this Bill.

The only reason I referred to the Defence Forces is that under the land frontier regulations, if they are called in to give assistance they would be regarded as officers in the exercise of Customs and Excise duties, but the Bill does not confer powers of search or anything like that on them. They are only coming in to aid the civil power. But in any given situation discretion——

(Limerick East): It confers the existing powers which Customs and Excise officers have but it does not confer the new powers under this Bill.

That is right. It allows the customs officers to call on them to give assistance.

This is not restricted to the land frontier but, in the event that members of the armed forces are called in, surely they become persons in the public service who are, for the time being, employed in the prevention of illegal importation or exportation of goods, and for that reason would have the powers that this Bill confers.

My interpretation of this matter is that this Bill confers certain powers on customs and excise officers; it also confers on senior officers of the customs and excise the right to get the assistance of the Garda or the Army if necessary.

(Limerick East): That is nowhere in the Bill.

We have alluded to the different Acts under which they have the powers. They have the powers of search since 1876. In any given case, where there is another officer of the State available, he would be there observing, to give evidence if necessary to create a successful prosecution. But this does not confer on him the powers that a customs and excise officer has, although he is doing similar duties to the customs and excise officer for a given time.

I was hoping that we could dispose of this section.

I appreciate that but we are engaged in a very important discussion on this Bill. It has opened up areas which I, not being legally inclined, was unaware of. It would be unfortunate if we did not tease out the issues that have emerged in the course of this discussion. The Minister said earlier in response to a question of mine that there were 2,000 customs staff. Can the Minister explain to me where the distinction is drawn between customs staff and customs officials? I take it the typist is customs staff and what the Minister refers to as frontline officers are customs officers. Could the Minister tell me where the distinction is drawn and whether or not that kind of distinction is defined in law either in previous legislation or in present legislation. It is not satisfactory that we should be conferring powers of this kind on people who, so far as I am aware, do not want it. I am not even sure who exactly will have these powers.

I have already clarified that. I cannot understand why it needs clarification again.

Perhaps I am a bit slow, so perhaps the Minister would clarify it. I am not happy that the Minister has clarified it.

I do not like clarifying the clarified.

(Limerick East): There is a lot of fog in the Chamber.

We are talking about fairly serious powers here and I am prepared to stay here until tomorrow night to clarify the clarifications and get further clarifications of the clarifications if necessary. We are dealing with a serious Bill. We owe it to the people outside to do our job correctly. I would appreciate it if the Minister would explain exactly on whom we are conferring these powers. I am not satisfied that customs officers or others, other than the Garda should have these powers conferred on them and retain them whether they are on duty or not.

For the third time I want to clarify the situation. First I did not decide the definition of customs and excise officers. It was decided in 1956 by other people and we are still acting on the same definition.

(Limerick East): We are not. There is a different definition in this Bill. That is the point.

It is exactly the same as in 1956. When we talk about customs and excise officers we are talking about frontline field staff who are commonly known as customs and excise officers. Typists and clerical assistants etc. are administrative staff. The customs and excise officers report to and work for the Revenue Commissioners.

I take it that under the Bill these clerical staff and typists can be designated to operate as customs officers at any time.

I presume there is nothing to prevent them from transferring into the frontline service. If they are acting and working, in any given situation, for frontline staff at any time, I would hope we would have enough commonsense to ensure, in the interest of the State that there will be some flexibility. Laws are passed and commonsense must prevail. We are only asking for the same powers for customs and excise officers as the Garda already have under the Misuse of Drugs Act, and we are talking about the 700 frontline staff and the investigation branch and the right of the customs and excise officers to have assistance from the other agencies of State.

(Limerick East): With respect to the definition section, it includes a member of the Garda Síochána and any person in the public service who is, for the time being, employed in the prevention of illegal importation or exportation of goods. According to the Minister for Finance, there are 187,000 public servants. Under the definition section of this Bill, it is possible for any one of 187,000 public servants to be designated as people who, for a particular day or for a particular weekend, are involved in the prevention of illegal importation or exportation of goods. That is the extent of the definition, and that definition is so wide as to add to the fog that is in the Chamber tonight.

The Minister may consider this to be a bit way out, but it has become the practice with the Garda to employ civilian staff in the Garda stations on secretarial duties. I do not think we would accept it as right that they would designate that staff to carry out functions of the Garda Síochána at any given time just because they happen to be shorthanded on a particular night or at weekends.

That is not what we are doing here.

The definition quite clearly says that anybody designated can do the job; any of the public servants of the State can do the job if they are so requested at any given time. We are talking about conferring these powers on them.

The Deputy is taking it totally out of context. The definition section of the Bill states that an officer of customs and excise includes a member of the Garda Síochána or any person in the public service who is for the time being employed in the prevention of the illegal exportation or importation of goods. How many staff in the public service are employed in that section?

(Limerick East): Potentially all of them, for the time being.

That would not be possible.

(Limerick East): It is quite possible that the people who are redundant in the Land Commission or An Foras Forbartha or ACOT could be reassigned to revenue, as many people are, and they could exercise the powers; they could be put in there on a temporary basis and they could exercise the powers.

The 1956 definition of officer of Custom and Excise includes a member of the Garda Síochána and any person in the public service who is, for the time being, employed in the prevention of the illegal importation or exportation of goods. This is exactly the same definition as the 1956 definition. There is no change whatsoever.

(Limerick East): The powers they will be exercising will be changing.

In a particular situation.

(Limerick East): No, the two things hang together. What was acceptable in 1956 was acceptable because it empowered people to exercise the functions of that particular Act. The powers being conferred here are very strong powers. We are arguing that we should be clear on the exercise of those powers. It is not at all clear now. The wording is extremely wide.

In the Minister's earlier remarks about how the section would operate, he made the point that it would allow flexibility — I think that was the word he used.

In the event of a particular occurrence.

Yes. If a custom officer needed assistance he could draw from the staff, from anyone in the Department of Finance — the Minister's own words — or, indeed, any other Department of Government.

I said specialist staff, professional specialist staff.

No, the Minister never used the word "professional" and he never used the word "specialist". My point is that he now constantly seeks to use those words. The Minister has used the words "senior member of the Customs and Excise". There is no reference anywhere in the definition section to the word "senior". It can be any member of the Customs and Excise, any officer. There is no definition for use of the words "specialist" or "professional". That is exactly the point we are making, that the current drafted form of the definition, whether similar to 1956 legislation or otherwise, is capable of such a wide construction in its current drafted form so that it also includes any member of the Defence Forces, because all of them are persons in the public service. The definition says "any person in the public service". If you couple that with the wording "for the time being" and the Minister's own remarks about the need for flexibility, to draw assistance in from the Department of Finance or any other Department, it certainly conveys to us in the Chamber a very untidy definition basis for giving powers.

Certainly, the Minister makes the point that they are equivalent to the powers the Garda have been given under the Misuse of Drugs Act, but there can be absolutely no doubt about the precise definition of who is a member of the Garda Síochána and how many at any one time exist in this country. We know it down to the last man or woman. That must be so. Persons with powers to interfere with your liberty and mine must be clearly established and identified so that we all know. That is the point we are trying to make here today. In a definition giving powers to whatever extent but certainly to the extent involved here, it must be precise. I honestly think it needs to be tidied up.

If the Minister took out the words "for the time being" and left it as "any person in the public service employed in the prevention of illegal importation", he would have to concede there would be sufficient men and women to deal with any eventuality, coupled with the powers to call in the aid and support of the Garda Síochána, who have all the necessary powers under the Misuse of Drugs Act, and the further aid and support of members of the Defence Forces.

Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill."

In view of the fact that the amendment in the name of Deputy Noonan is withdrawn, can we proceed to deal with the next section?

No. The Minister owes it to the Deputies in the House to make some statement in relation to this section, to the effect that he is at least prepared to review the wording and to tighten it up to reflect the concerns which have been expressed by ourselves and the Fine Gael Party. Unless we get that assurance, we have no option but to oppose the section.

I have listened with great interest to the many definitions given and the many options put before us. I am satisfied it is pretty clearly defined, but in view of the anxieties expressed by the Deputies I shall have another look at the situation and if it can be amended I shall do so on Report Stage. I will have an open mind on it and do what I can.

I thank the Minister.

May I suggest to the Minister that perhaps one thing he might consider doing would be to circulate a memorandum on the view taken by him or his Department of the extent of this definition and the personnel they believe will be covered or affected by it so that when we come to Report Stage we shall have a clearer view. I know the Minister has tried many times to clarify the position, but there are doubts lurking. It would help if a memorandum of that kind were prepared to assist the Deputies on this matter.

I shall do my utmost to make that information available, but I could find many reasons to justify what I have said. I stuck rigidly to section 1. As we go through the Bill and consider the other sections it will help to clarify the situation. I hope to come back on Report Stage with all the information possible.

Question put and agreed to.
NEW SECTION.

Here we come to an amendment in the names of Deputy Mac Giolla and other Deputies that a new section be here inserted.

I move amendment No. 2:

In page 3, before section 2, to insert the following new section:

"2.—Sections 2 and 3 of this Act shall not come into operation until provisions relating to the investigation of complaints for the public against officers of Customs and Excise, and the adjudication by a body other than the Customs and Excise of such complaints have been enacted by the Oireachtas and have come into operation."

This amendment is simple in its terms and seeks to insert before section 2 a proviso that neither section 2 nor section 3 shall come into operation until a body is established outside of Customs and Excise, to deal with complaints that might arise from the exercise of the powers conferred in sections 2 and 3 on members of Customs and Excise.

This provision is exactly based upon the corresponding provision in the Criminal Justice Act of 1984, when the extensive powers introduced by that Act for members of the Garda Síochána of arrest, detention and questioning were being debated and considered by the House. The powers were prefaced under section 1 (2) of the Act with a provision similar to what we are proposing in this amendment.

To refer to it briefly, in that Act sections 4 to 6, 8 to 10, 15, 16, 18 and 19, all confer wide-ranging powers of stop, search, detention and questioning on the Garda. At that time the House agreed that these powers should be counterbalanced by the provision of an independent complaints body. This was a counterbalancing provision the Legislature felt should apply to a body of men and women whose organisation had been in existence since the foundation of the State who had as a force been trained, educated and experienced in the exercise of their powers through long years of service, who had as their frontline primary duty the prevention of crime, the maintenance of peace, the securing of public order and who were and have been the cornerstone of our civil ordered society since the foundation of the State. Despite the important job which they had to do and despite the fact that serious crime was increasing, the Legislature felt that even with all of their expertise and their own internal disciplinary procedures, in order to maintain the common good and confidence in the Garda Síochána it was important that an independent complaints body should be considered.

One of the important features which was acknowledged in the debate in the context of assisting and enabling the Garda Síochána to do their duty was that they should enjoy the confidence and support of the community in whose midst they worked. One of the ways in which the Government of the day considered that this could be done—and they were supported by the Fianna Fáil Party who were in Opposition at that time — was through an independent complaints procedure. Exactly the same arguments must be applied to the Customs and Excise service in the job which they have to do in stopping, questioning, searching, both vehicles and persons, detaining for the purposes of searching, seizing goods which, as I have indicated previously, are powers not just given to them under this Bill but in Bills going as far back as the 1870s and beyond. If this is to work with the confidence, assistance and goodwill of the community, it must be done in a climate in which the community can be assured that, if there are excesses or abuses of the powers, they will have the right of redress and an opportunity to seek access to an independent lay tribunal.

The Minister in introducing this Bill on Second Stage indicated what he considered to be sufficient safeguards and stated in relation to safeguards that the 1876 Customs Consolidation Act provides that before any person is searched by a customs officer he or she can ask to be taken before a justice or before a senior official of the customs who must determine whether or not reasonable cause for the search exists. It was very good of the Minister to highlight that provision in his speech because many people who travel to and from our jurisdiction and who have been subjected to a search by officials of the Customs and Excise service are not aware of their entitlement to recourse to a senior official within the Customs and Excise service or, indeed, to a justice. I doubt that there ever has been one instance where a member of the public looked for a justice to adjudicate on whether or not the action being taken was reasonable and I wonder whether it still exists in law as a remedy. It is important that these safeguards are known to people and that they are available to them in a meaningful way. Does the Minister consider that is an important safeguard and how does he envisage a justice being summoned to either a port or an airport to adjudicate at short notice on an issue such as this?

The Minister went on to say that any person who has a complaint against an officer of the Customs and Excise service can complain to a superior officer or to the Revenue Commissioners and can also seek redress through the Ombudsman or the courts. That is the extent of the facilities which the Minister considers adequate to deal with excesses or complaints. We must accept that inevitably, and I use that word advisedly, causes of complaint will arise. When these powers are made available there is no doubt that, inadvertently or by design, there will be excesses perpetrated on innocent people or otherwise and complaints will arise. The Minister by adverting to it at all in his speech acknowledges this.

What we need to ask ourselves is whether the indicators of redress are sufficient. When we speak about a senior official in the Customs and Excise service or a member of the Revenue Commissioners we are effectively talking about the same notion of the Customs and Excise service or the Revenue Commissioners investigating themselves. That is not adequate and can never be considered to be adequate. In addition, it is suggested that there is recourse to the Ombudsman or the courts. In all instances of excesses by the Garda Síochána there is and always has been the right of access to the courts. In giving extended powers to the Garda Síochána in 1984 we considered that the Garda Síochána should be subject to an independent complaints procedure. Surely, the same must apply in this instance?

To suggest that the Ombudsman is a means of redress again does not deal with the matter adequately. We argue that if there is an independent complaints tribunal for dealing with complaints against members of the Garda Síochána, there should also be a similar forum or tribunal to deal with persons who exercise analogous powers. On the previous amendment the Minister underscored a number of times that what he was trying to do in this Bill was to give them exactly the same powers which the Garda Síochána have under the Misuse of Drugs Act, 1977, in this area. If they are to have the same powers, we argue that they should be subjected to the same regime of regulation, control and review whenever complaints or cause of complaint arise.

It was very brave of the Minister to suggest that the Ombudsman's office would be available as a means of recourse in this area. Only a few weeks ago we received a very worrying report from the Ombudsman's office which indicated that because of or lack of resources and staff, he is over 18 months behind in dealing with complaints. From memory, we are talking about almost 1,500 complaints outstanding. Even if they had nothing else to do it would take his office and staff a further 18 months to clear those alone. The suggestion that the Ombudsman is a source of recourse or redress is simply not on in the current circumstances. In any event we get away from the point of like for like. The Garda Síochána have a greater job of dealing with crime control and social order than Customs and Excise officers will ever require and if we say to them that they should be regulated by an independent tribunal, then it is only right and proper that it should apply to Customs and Excise officers also.

The Minister in his contribution in the Seanad indicated that there was no major extension of powers and today I think he suggested that these are not draconian. I hope that the point has been made forcibly enough that they are wide-ranging powers. They cannot be considered as simply commonsense rules being given to people with a job to do. That cannot be the yardstick upon which we should seek to apply an appreciation of this kind of powers. We must look at them and recognise their potential impact on the innocent in any debate on whether or not they are desirable or how far they should be allowed operate.

It has to be emphasised that none of us argue that the Customs and Excise officers should not have these powers but what we are concerned about is that they are exercised in a proper and reasoned fashion. If the Minister intends to stand by the very loose amendment of the category of persons who are entitled to use these powers, as we have somewhat exposed in our previous discussion as contained under the definition of the section, there is all the more need for a very useful regulatory power to control the operation and effect of these powers. We are hopeful that in this debate the House will remain consistent about checks and balances and of extending powers to the civil authority and protecting the right of persons affected by them to seek redress. I hope the House will accept this amendment as a useful way of dealing with the problem.

(Limerick East): I would like to comment briefly on this amendment. I was very interested in what Deputy McCartan has said. He spoke on the general principles of civil liberties and the checks and balances which we should have in our criminal law. I think most of us would agree with him. It is a matter of some surprise to me, as I remarked on Second Stage, that now that the House is discussing this Bill with its draconian powers which has emanated from the Department of Finance that there has been an empty press gallery since we started tonight; that those great guardians of law and order, the Progressive Democrats, have not thought it sufficiently worthwhile to be here; and those self-styled guardians of civil liberties, the Labour Party, are equally absent. As I commented on a previous occasion, I am convinced that if this Bill came out of the Department of Justice we would be here for six months debating it. We would want to reflect on that.

I do not accept that we should put this Bill through on the nod. The powers that are being requested by the Minister for customs and excise officers are along the lines of the powers that the House should grant. However, they should be adequately debated and I am not going to be harried by any suggestion that we are soft on drugs or drug pushers and that in case that tag is attached to us we should nod the Bill through. The drug problem is one of the severest problems facing this country or any other country. The powers being requested by the Minister for Customs and Excise officers are reasonable but we must look at the extent and scope of those powers, on whom they are conferred and at what checks and balances are in the Bill.

My view on this amendment is different from Deputy McCartan's. The precedent he referred to was the 1984 Criminal Justice Bill. The sections contingent on an amendment along these lines in the Criminal Justice Bill were sections which gave extensive powers to the Garda Síochána which they did not have previously. The Bill did not, contrary to the conventional wisdom, confer on the Garda Síochána the powers of arrest. They had those powers already and the Bill did not confer any new powers on them. However, it did give them the power to detain for extensive periods of time persons whom they arrested on reasonable suspicion. It also gave them power to search, fingerprint and photograph those persons and more than anything else it gave them power to question those persons over an extensive period of time. If the questions put resulted in a statement made and the powers were properly carried out, that statement was admissible as evidence in court.

This Bill does not go that far. I understand that it does not confer on Customs and Excise officers the right to stop people. They have that power already. It gives them power to detain people but only for such time as is reasonably necessary for carrying out a search. That seems to be a reasonably short period of time. If section 2 (1) (b) (i) of the Bill was abused in any circumstances, it is so closely drawn that the powers of redress available to an individual through the courts would be adequate. It is confining to write into the Bill that officers exercising the powers under this Bill, whoever those officers may be, have only the right to detain persons for such time as is reasonably necessary for carrying out a personal search. There is no suggestion that Customs and Excise officers have the power to detain people for questioning or to fingerprint or photograph people. The detention powers, in so far as they are conferred, are detention powers but I think it would be possible to search someone in a short period of time and I think the courts will construe that as a short period of time.

Another point worth making is that we should try to envisage a real situation where there is a reasonable suspicion that somebody coming through an airport is importing drugs into the country. This section is confined to searches in relation to the control of drugs. It does not relate to television sets coming in from the North or four bottles of whiskey in a suitcase. This section is confined to the detection of drugs. That person may be brought into a room by the Customs and Excise officers and his luggage and pockets may be searched. There may be a more extensive search, and if a substance is found which could be construed as a controlled drug or some other material which would give rise to suspicion that they are in the process of importing controlled drugs into the country, I think that the Garda Síochána would take over very quickly in that series of events. It is likely that the powers to detain, search, fingerprint, photograph and question a person could occur subsequent to the search initiated by the Customs and Excise officers. If that is the sequence of events envisaged, the requirements of the amendment that an outside body should adjudicate on any complaints against Customs and Excise officials in exercising their powers may be unnecessary because, if the complaint were to be made, it would be made against members of the Garda Síochána and the independent complaints board is in place to deal with such complaints.

There is no doubt that there will be complaints. A person as pure as the driven snow, totally innocent of any trafficking in drugs, going through customs may be searched by a customs officer exercising the powers under this Bill in a bona fide fashion because of a reasonable suspicion. A complaint may follow but, as the Minister pointed out, that complaint can be made in the first instance to superior officers or the Revenue Commissioners. I do not think that is adequate and recourse to the Ombudsman and the courts would be a strong safeguard in that instance.

If I were sure that these powers will be exercised by the 700 uniformed officials, as the Minister has put it, I would be more opposed to the amendment. If we got the definition section right there might be no need for the amendment. The independent complaints board applies to the Garda Síochána and if complaints against any of the other 700 people involved could be referred to the Ombudsman or to the courts that would meet the case. If the Minister could accommodate us on the definition section I would not be looking for this safeguard. It is not on all fours with the provision in the Criminal Law (Jurisdiction) Act. It is not a question of treating like as like; it is different and for that reason I will not support the amendment.

I appreciate the anxiety of Deputy McCartan. Deputy Noonan has summed up the position very well. There are already substantial powers of personal search available to officers of Customs and Excise. The net effect of section 2 is to permit personal searches of meeters and greeters, people at an airport who may be suspected of having received drugs or other illegal articles from travellers within the vicinity of the port, or airport, or the land frontier. Powers of search available to customs officers without warrant include permission to search any person who has entered the State by land, sea or air, any person suspected of an offence in relation to exportation of goods. They may search without warrant aircraft and ships, vehicles within 20 miles of the land frontier, vehicles anywhere else in the State upon reasonable suspicion or probable cause. They may search under warrant any house, shop, cellar, warehouse or other place. Those powers have been available to officers of the Customs and Excise for many years.

Deputy McCartan may be surprised to learn that officials have no recollection of any member of the public seeking to go before a district justice. A person may request to be brought before a justice for his or her case to be heard against a search being carried out. The public have requested to be brought before senior officers of Customs and Excise before a search was carried out. The public use the various structures available to them in the complaints procedure against staff of the State and Customs and Excise officers. I should like to point out that out of a total of 2,434 complaints against the Civil Service dealt with by the Ombudsman in 1986, only six related to the customs service. None of those complaints related to abuse of powers.

What is being sought in sections 2 and 3 is a relatively marginal extension of the existing powers of search enjoyed by the customs service. Those powers date back to 1876 and have been exercised with great care and discretion. As matters stand, an aggrieved person can complain to a senior customs officer, as they have done; to the Revenue Commissioners, as they have done; to the Ombudsman, as they have done; and ultimately, can have recourse to the courts. As Deputy Noonan pointed out, it would be a mistake to draw a comparison between the powers of the Garda Síochána and the Customs and Excise service. The powers of the Garda Síochána are very broad, covering as they do the whole range of criminal legislation. I am sure Deputy McCartan understands that. The powers of customs officers are more circumscribed. Based on the fact that for the first time since the foundation of the State a Garda complaints body came into operation this year and the wide range of powers the Garda have, it would be wrong of us at this stage to extend powers to an organ of State whose role, functions and powers are clearly defined and limited. I regret that, based on our performance to date and the information available to me, I cannot accept the amendment.

In the course of his speech the Minister of State, referring to the right to detain and so on, said that more extensive powers of detention were not being sought but he assured the House that, if the need to increase the powers available to customs officers in relation to a period of detention arose, it would be given careful and detailed consideration. Clearly, it is envisaged that the powers being given to customs officers may not be adequate. What we are dealing with here is an attempt to balance the duties and responsibilities of the customs officers and the Garda and to safeguard the public from over zealous officers or breaches of the law by officers charged with applying the law. For instance, the Garda Síochána have their own internal system of discipline but I am not aware of the type of internal disciplinary procedures there are for customs officers, if there are any. I do not know if there are any sanctions for breaches of discipline, what rules and regulations there are, if they are covered by way of statutory regulation or if they are voluntary terms of employment applied by the Revenue Commissioners. It is important that the Minister clarifies this matter.

Our amendment may appear to be a bit heavy-handed because, obviously, the powers and responsibilities of the Garda are a lot wider than those of customs officers. I spent a long time in this House when the Criminal Justice Act was being debated. The argument about the complaints procedure then was that the powers were being extended. Subsequently the Minister agreed to introduce the complaints procedure, but that procedure now applies to and is available for breaches of regulations, mistreatment or complaints of all kinds not just relating to the Criminal Justice Act. For instance, presumably if the Garda were operating in a port area or an airport in pursuance of the powers conferred on them in this Bill and a member of the public had reason to complain — or no reason to complain but wanted to complain anyway — that person would have access to the Garda complaints procedure. It seems unreasonable, therefore, to say that because a customs officer rather than a member of the Garda Síochána is carrying out his duties under this Bill the member of the public has not the same access to the complaints procedure.

A point relating to the complaints procedure made very strongly during the debate on the Criminal Justice Act was that in many cases people do not want to go to court to get redress for their complaints, that an informal, non-legal-istic procedure is preferred in the vast majority of cases. The case was made also that where people had complaints concerning the activities of the Garda they were not necessarily happy to go and have their complaints investigated by the force against whom they were complaining, and that holds true in relation to this Bill. It is not satisfactory to expect that the only options open to the member of the public who wants to complain are to go to the senior officer of customs or else to court. The Minister may well argue that the person can also go to the Ombudsman, but the report of the Ombudsman makes it clear that that office is totally overstretched in terms of the resources it has. We sought recently to have a discussion on that report which we have yet not succeeded in achieving. It would be important to have a debate on that kind on the Ombudsman's report so that we can see precisely how that office is operating, what kind of resources it needs, and if this kind of amendment which we are seeking to insert into this Bill is not successful, what additional resources it would need in order to cope with whatever complaints might arise from the Bill which we are debating.

The customs officer will have the right to arrest a person who does not comply with a request for a search. What restrictions are there on the length of time for which a person may be detained while arrested by a customs officer? Can the Minister tell us whether a customs officer in the normal course of duties who has a suspicion of a person whom he sees coming through an airport or to an airport to meet someone, when he approaches that person can tell him or her what are his or her rights? The Minister of State said in response to a question raised by Deputy McCartan that there is no recollection of a person requesting to be brought before a justice with regard to that person's refusal to be searched. Is that simply because the person was never informed he had that right? Can the Minister indicate how often people who were approached to be searched refused and sought to have their case brought before a senior officer? The Minister pointed out that of the more than 2,000 cases before the Ombudsman relating to the Civil Service only six related to the customs service. How many complaints in total are received by the customs service with regard to searching or otherwise? We want to get a proper picture of the state of play with regard to the operation of existing powers by the customs officers.

The amendment we have down is a fairly strong one. We will be quite happy to see the Minister bring in an amendment of his own which would perhaps fit more neatly into this Bill, but we feel there is a need for some independent complaints procedure in view of the fact that these very wide-ranging powers are being given to what is basically a civilian service which in the normal course of events would not be expected to deal to any great extent with criminals of one kind or another. We are putting down these amendments because we are concerned to ensure that adequate safeguards are there, not for the criminal but for the innocent.

I have listened with interest to what the Deputies have said. Let me re-emphasise the fact that in relation to meeters and greeters, the law is not adequate and that is why we have sought to change it in that situation. Deputy De Rossa has asked many statistical questions on which I do not have information and to which it might not even be possible to get answers. Nobody has asked to be brought before a district justice. Regarding the relatively low number of body searches that have taken place, there have been no complaints.

Of course there is discipline in the public service in all areas and rigid discipline in the Customs and Excise area. An internal disciplinary system operates and appropriate penalties are applied across the board depending on the gravity of the offence or the mishandling of any situation by an officer of Customs and Excise. There is loss of increments, recording inefficiencies in personal files which would militate against the officer's future promotion, transfer to another area of similar work or of different work; depending again on the gravity of the offence it could be a direct transfer or a transfer to a different area of work. There could be reductions in grade to a lower grade, and in serious cases final and ultimate dismissal. There is a strict disciplinary code and that is applied in all Government Departments particularly in Customs and Excise.

I think the powers being sought are reasonable and vitally necessary. The Customs and Excise service has served us well for many years. We should judge them on their performance and give them an opportunity to serve fully and even better in their efforts with us to ensure that illegal drug trafficking does not occur and that goods and objects are not brought illegally into the State. I hope the House will accept that. I suggest, with respect to the Deputies, that they withdraw this amendment.

The Minister is offering to consider a provision that would, for example, allow for review of the provisions in the Bill. We have had this phenomenon of the 12 months review before in our legislation, The Workers' Party would welcome and consider that favourably. I do not know if that is what the Minister intended to convey in his concluding remarks — to give this Bill a chance and let the powers be invoked, put to use, and see how it runs — but we would consider that because it would not be a bad development.

(Limerick East): We would almost settle for the five investigators the Ombudsman has lost.

Is the amendment withdrawn?

The Order of the House does not allow the Minister to reply. It is now 10.30 p.m. and we must move on to the next Business.

Progress reported: Committee to sit again.
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