I understood that the Minister took up an invitation which was made on the last day, to prepare a memorandum for those Deputies in the House concerned with the implications in the Bill of his interpretation of the definition of "officer" and that it would be circulated today.
Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987 [ Seanad ]: Committee Stage (Resumed).
I am always delighted to be able to assist the House, and the document is about to be circulated now.
I thank the Minister and hope his document meets the concerns we had raised.
This amendment under discussion was proposed to try to bring some form of equity or uniformity or regime between the conditions under which members of the Garda Síochána are obliged to operate and conditions under which officials of the Customs and Excise will be obliged to operate, in view of the fact that the powers afforded customs officials under the Bill are equal to those afforded to the Garda. If we are giving a range of powers to employees of the Department of Finance, powers to stop, search, question and detain members of the public those people should be made answerable to some form of independent public body of complaint. All of the reasons for that type of regime were advanced here in the House in the context of the Criminal Justice Bill, 1984, so there is no need to go over them again. I am interested in hearing the Minister's response. This type of amendment is needed particularly in view of the wide import of the Bill as was highlighted here by Deputy Noonan, Deputy De Rossa and myself when we were discussing who would be in a position to be designated an officer for the purposes of this Bill. For those reasons I commend this amendment to the House and I would be delighted to hear the Minister's response.
Amendment No. 2, as Deputy De Rossa said, might appear a bit heavy handed. The powers of search now sought in the Bill, as I said before, are marginal additions to the powers of search already exercised or capable of being exercised by the Customs and Excise service. It is a mistake to associate this Bill with the Criminal Justice Act 1984, in which extensive new powers of detention were assigned specifically to the Garda. Moreover, the Garda have to deal with a whole range of criminal law, whereas customs officers' powers are confined to the enforcement of Customs and Excise legislation alone. The Customs and Excise service has earned a reputation for courtesy and efficiency, a reputation which has not been impugned by the difficult task which they faced over the last 11 months in implementing the 48-hour rule on travellers' allowances at the Border frontier. No complaints were received in the last 12 months about personal searches per se by the Revenue Commissioners or the Department of Finance. The Revenue Commissioners are also unaware of any member of the public seeking to have the question of a personal search resolved by a senior customs officer or a district justice, as is the right of every member of the public. This is probably due to a number of factors including ignorance of the law.
Customs officers are in a position to explain a traveller's rights when the need arises. The system of red and green channels is extremely useful in that before contact is made in the normal course between customs officers and travellers, the traveller is obliged to determine his or her obligations and to proceed accordingly through the red or green channel. Basically, the situation is that the traveller has already made a conscious decision as to whether they have goods to declare. If a person has a doubt he can go through the red channel and have the doubt clarified or he can go through the red channel thereby automatically declaring the goods and indicating that he is prepared to pay the necessary customs duties. The law is very flexible. The structure is simple and reasonable. I have no doubt that discretion has always been well used. I regret that I cannot accept this amendment.
I was anxious to hear the Minister's reply before opening up a little more the purpose of the amendment. I am surprised that the Minister has tried to suggest that the powers being afforded the Customs and Excise officers under this Bill are marginal additions to what already exist. One could not describe the regime that will run from this Bill as anything like a marginal addition. Even if they are only marginal additions, that does not defeat the point of the amendment. What is already there is extremely extensive. It is important to get an appreciation of the general type of powers an officer of Customs and Excise will have. The argument will come up under later amendments about the definition of what is the vicinity of any port or airport and it has been argued in the Seanad on this point that, given the proliferation of regional airports around the country, that section and the power to stop, to search, to seize, would probably be exercisable almost throughout the Thirty-two Counties. In relation to search warrants, again an officer will be entitled to apply not only to a court but to a peace commissioner for a warrant to pursue an investigation, and there is no limit whatever geographically on the extent of that investigation. What is happening in this Bill is a very definite deterioration between the limit of the Customs and Excise officer's investigation and the beginning of the Garda Síochána investigation. That is a very worrying aspect of the Bill generally. This was highlighted on Second Stage.
Customs and Excise officers should be confined or should confine their activities to their traditional areas of operation about the airport, about the port and on usual points of crossing when it comes to talking about the Border. On Second Stage Members of the House gave an all-embracing welcome to the provision for Customs and Excise to move into general day-to-day detection of drugs about the country wherever, and that is the whole intent of section 3. Maybe the Minister will respond and say that that is not the intent, but nothing in the Bill will limit or delimit geographically or jurisdictionally limit or delimit the powers of customs officers in the exercise of these duties.
If anything, the clear intent of the Bill is to allow Customs and Excise officers to move out from their traditional points of duty and pursue the drug trafficker, the drug importer and the drug offender, to follow on information they may have gathered through their own intelligence gathering, their own initiative or their own process of gathering facts or whatever will come their way at their point of first contact, and pursue those by going to a peace commissioner or district justice, getting a warrant and heading off with their warrant to any house in any location or to any building around the country. That is a worrying development. There must be a point very close to the initiating of an inquiry where Customs and Excise would hand over to the very experienced, trained and equipped drug squad of the Garda Síochána the carrying on of that kind of work, getting the warrant and pursuing down the line, in co-operation with Customs and Excise people, any drugs inveigled into the country, spirited away from the point of contact and hidden in buildings.
If I am wrong about all this and the Government and the Minister are intent that Customs and Excise would have this expanded role, it becomes clear that there must be some form of independent policing and we are talking about a departure in policing far wider than any suggestion of marginal addition. We are getting a completely new dimension to the policing of drug trafficking that is not necessary in view of the resources, expertise and successes of the drugs squad to date in dealing with this problem. In fact, at this time there is a trend in an opposite direction. The chief superindendent of the north-east sector of the Garda Síochána in the city of Dublin is intending shortly to open up a Garda sub-office on the tarmac within the confines of the airport at Dublin. His belief is that the Garda Síochána should have a presence in close co-operation with the other policing agencies within the airport. That is the movement within the Garda Síochána. This Bill tends to suggest the opposite move.
Very wide powers are vested in these persons. I will not have an opportunity until later in the evening to consider the Minister's memorandum with regard to who those persons are, but the contribution the last day indicated it could be anyone within the Department of Finance called upon to act in support of the officers in the full employ of the Garda Síochána. The wide scope of the powers coupled with the wide catchment of the person who will be invested with these powers require some form of regulation, of independent control, so that persons out and abroad will be answerable if they overstep the mark.
Lest it be suggsted that I am engaged in some form of attack on the Customs and Excise officers, I make the point that that is not what I am about, just as I do not in any way seek to cast aspersions upon the Garda Síochána as a force in suggesting that modern day policing, as has been accepted by this House in the previous term, requires independent complaints investigations procedures, and this has been conceded this very week by the authorities in Northern Ireland. Where people are given powers that impinge upon our liberty, property and free movement, it is essential that they are subjected to regulations that require independent inquiry and independent access for those seeking to make a complaint about the abuse of those powers. Customs and Excise officers operate in plain clothes. Unlike the Garda Síochána in the city of Dublin and, I hope the Minister accepts, other parts of Dublin they are not obliged to carry on their clothing indentifying marks of their rank or number. The identifying marks are there for a purpose, that the Garda can be made answerable to complaint if and when it arises; they are identifiable for the purposes of being answerable for their activities in exercise of their powers.
The first principle says we are all entitled to our liberty, free of interference; then we legislate to give extraordinary powers to persons in positions of responsibility or policing. As a result of this Bill, Customs and Excise men will be in almost the same position in terms of power and authority as members of the Garda Síochána. They will not have the same period of time during which they can detain a person, but they have powers of detention, and it matters little to the ill-intentioned officer whether he has one hour or 12 hours if he is to abuse his power. It matters even less to the person who is detained if he or she is subjected to any abuse whether it is one hour or 12 hours. The power of detention is there, the power of search is there, the power of seizure is there, and the Customs and Excise use of power in the past of seizing property has been a matter of public comment.
I do not think the Minister will have forgotten the series of articles carried in The Irish Times not many years ago complaining about the apparent excesses by Customs and Excise in seizing property, motor cars and so on and the great difficulty people had in getting redress. There is more to this then meets the eye. It seems that two things have to be suggested. The fact that this Bill does not emanate from the Department of Justice suggests that it is — if I may use the term — a little less sinister. The point has to be made that we would have a major——
Deputy McCartan is making many interesting points but I am not sure they are all entirely relevant to his amendment or to Committee Stage. On Committee Stage the Deputy is required to indicate with what precisely in the section he is taking issue or to sing the praises of his own amendment. I do not think I have heard Deputy McCartan do either.
I am at a loss to appreciate you ruling. Perhaps I should read the amendment again and explain what it is about. The amendment seeks the non-implementation of the powers under sections 2 and 3 of the Bill. The powers of search, detention and seizure should not come into effect until there is established a body that would investigate and receive complaints from members of the public against officers exercising those powers.
I have not yet heard the Deputy refer to the body in question.
I was very brief in my initial remarks because I wanted to hear the response of the Minister before I stated why I believe it is important to have such a body. I was attempting to in some way address the suggestion that what is being proposed in this Bill by way of additional power is a marginal addition to what was already there. I am trying to explain the importance, from the civil libertarian point of view, of having some form of independent complaints investigation. In short, I am saying that I believe that the code of powers contained in this Bill, in addition to what already exists, is such as to give to customs officers very similar, though perhaps not as extensive, powers as are invested at the moment in members of the Garda Síochána in dealing with suspects. For that reason and no other there should be uniformity of procedure in dealing with complaints if and when they arise. One would hope that complaints would never arise but I think the Minister and every Deputy in this House, as practical men and women, must realise that the inevitable happens, that complaints will arise and that members of the public should have the redress to pursue their complaints before an independent body who will investigate and adjudicate on them, a procedure that all members of the Garda Síochána are currently subjected to and which is perceived by the public to be an effective and fair way of dealing with such matters. I appreciate the constraints under which the Minister is pursuing this Bill and the amendments to it. I ask him to bring this amendment back to his colleagues in the Cabinet with the reasons I have advanced. I hope that we can revert to this matter again at a later stage if the Minister is not prepared to concede to it at present.
For the benefit of the House I will reiterate much of what I have said in the Seanad and here pertaining to the powers of search that are currently available, and were available before this Bill was comtemplated, to officers of Customs and Excise. Customs officers may search, without warrant, any person who has entered the State by land, sea or air, or any person suspected of an offence in relation to the exportation of goods. Customs officers may search aircraft and ships or vehicles within 20 miles of the land frontier and vehicles anywhere else in the State upon reasonable suspicion or probable cause. Customs officers may also search, under warrant, any house, shop, cellar, warehouse or other place. That is the law as it currently stands which empowers customs officers to search people and places, with or without warrant.
An all-party committee of this House, the Select Committee on Crime, Lawlessness and Vandalism, recommended the extension to customs officers of the powers of search already assigned to the Garda Síochána under the Misuse of Drugs Act, 1977. The Garda, who have the general job of implementing law and order and ensuring that all criminal activities are taken care of, have a specific function pertaining to drugs. In order to assist the Garda it is now proposed, as a result of an all-party committee of this House, that similar specialist powers be given to the customs officers in an effort to combat the drugs problem. There is absolute consistency in this. We are not proposing to give to customs officers the same powers as the Garda Síochána have. They have a totally different role to play, a very general role with clear specifics. The customs officers also have a specific role to play. Both the Garda Síochána and the customs officers have specific duties to perform in relation to drugs. Customs officers are constrained as of today vis-à-vis their facility to deal with the drugs problem and we are asking that this would be reconciled and synchronised and that the Garda and the customs officers, in their handling of the drugs problem, would have an absolutely consistent system under which to operate.
I appreciate what Deputy McCartan has said. I would like to remind the House that sections 2 and 3 — we are dealing with section 2 — plug a real gap in the powers of search of customs officers in relation to drugs. The Government are therefore anxious that these powers be assigned as expeditiously as possible. The amendment now before us can only add to the delay in the assignment of these powers and to no particular purpose because the customs service discharges its duties with efficiency and courtesy, as, I think, the vast majority of experienced international travellers would concede. Moreover, there are existing statutory channels of appeal and complaints may be laid with the Revenue Commissioners, the Minister for Finance or the Ombudsman who would fully investigate them.
I would like to correct one point made by Deputy McCartan, in that he inferred that I suggested that all staff of the Department of Finance would be given these powers. What I said was that the customs officers within the Revenue Commissioners, in co-operation with the Department of Finance, would be given these powers. We are talking about fewer than 700 people in the customs service who are actively involved in apprehending and enforcing the various customs Acts. The fact that the Garda consider that they would need to have a sub-station at Dublin Airport is, I hope, a clear indication of the role they play and the role of the Customs and Excise officers, and the two agencies of State doing a similar job in a specific area. It would be very good if we were to ensure that there would be automatic on-the-ground co-operation at any given time. I would welcome such a move.
I ask the House to accept what I say in good faith. We have given detailed consideration to the points raised on Second Stage in this House and in the debate in the Seanad. Accordingly, I cannot accept this amendment.
I believe this is fundamental to the whole issue and to our approach to the Bill. No view has been expressed that the powers should not be made available to the customs officers. However, as in all matters, I believe a balance must be struck. For that reason the need for an independent complaints tribunal is an essential prerequisite. Therefore I must press my amendment.
- Bell, Michael.
- Clohessy, Peadar.
- De Rossa, Proinsias.
- Desmond, Barry.
- Gibbons, Martin Patrick.
- Harney, Mary.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kennedy, Geraldine.
- McCartan, Pat.
- Colley, Anne.
- Cullen, Martin.
- McCoy, John S.
- McDowell, Michael.
- Mac Giolla, Tomás.
- Molloy, Robert.
- O'Malley, Desmond J.
- O'Sullivan, Toddy.
- Quill, Máirín.
- Quinn, Ruairí.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Abbott, Henry.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Burke, Ray.
- Byrne, Hugh.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
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- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
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- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
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- Hyland, Liam.
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- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- MacSharry, Ray.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
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- Wright, G.V.
We proceed now to deal with amendment No. 2a in the name of Deputy McDowell.
I move amendment No. 2a.
In page 3, before section (2), to insert the following new section:
"2.—(1) The Minister for Finance may, where he is of opinion that any officer of Customs and Excise is by his experience and training a suitable person to exercise the powers conferred on an officer of Customs and Excise by the Customs and Excise (Miscellaneous Provisions) Act, 1988, by written warrant authorise that officer to exercise such powers.
(2) In any proceedings before any Court it shall be presumed that any officer of Customs and Excise who purported to exercise any powers under this Act held a warrant authorising him to do so unless the contrary is proven.
(3) A warrant issued under th section shall be in the form prescribed by regulations to be made by the Minister for Finance, who shall have power to amend, vary or revoke any regulation made by him under this section.".
The purpose of this amendment is to limit the class of persons who can exercise the far-reaching and draconian powers which the provisions of the Bill propose to confer on everyone who is considered in law to be an officer of the Customs and Excise.
It is as well that the substance of what the Minister of State has told the House is his understanding of the law should be read on to the record of the House. The definition, in section 1, of "officer of Customs and Excise" reads:
"officer of Customs 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.
It is quite clear that "officer of Customs and Excise" in that context does not mean any person who holds any particular office; the ambit of the definition is wider than that. It means that any person for the time being can be requested by the Revenue Commissioners or by the State — quite apart from the Revenue Commissioners — to carry out duties which relate to the prevention of the illegal importation or exportation of goods. Any person, no matter of what standing, quality or training who is in the public service, who is asked by the Revenue Commissioners, or indeed by the Government for the time being, to carry out those duties falls within the very wide definition of "officer of Customs and Excise" being offered here.
The Minister has said that this amendment is drawn from section 1 of the Customs (Amendment) Act, 1942 and section 1 of the Customs Act, 1956 which carry an identical definition. That is true. He also says that the 1942 Act made provision, among other things, for personal searches in respect of the illegal exportation of goods. The 1956 Act also deals with exportation offences. The Minister informs the House through this memorandum that both the 1942 and 1956 enactments apply the definition in the 1987 (No. 2) Bill to the entire body of Customs and Excise legislation. Accordingly the existing powers of search without warrant assigned to Customs and Excise officers apply to those persons covered by the definition, which this new Bill contains as well and which may be regarded as the standard definition of a Custom and Excise officer.
With respect, this calls into question the entire issue as to whether we are prepared to invest in certain people wide-ranging powers in relation to other people, powers which are, in effect, a right to curtail their civil liberties of movement, their right to liberty and the right not to be interfered with and searched. If we are going to give those powers to a wide group of people, the definition of which is unduly loose, I think we are making a fundamental mistake from the point of view of civil liberties. This is a fundamental civil liberties question.
Although I fully accept the Minister's reasoning that it is the definition of the officer of Customs and Excise that applies in other enactments, the powers which are now being given do, and this cannot be denied, extend the ambit of an officer of Customs and Excise's activities to cover the right to stop somebody, to detain him, to bring him some where to remove all his clothing if he is of the same sex as the officer, to search him personally and to use, if necessary, a medical practitioner to search him. I will return to that issue later. It is quite clear from the Act that this is a very substantial power and it is a power which is conferred on this very broad definition of officers which, as I said, could include a porter in a Civil Service office who is asked to help out by a Customs and Excise officer or somebody who, for the time being, the Revenue Commissioners have pressed into service regardless of whether that person had any training, qualification or necessary knowledge of the law. This is very far reaching. None of these temporary officers of Customs and Excise who could come into existence under this definition have to have any legal qualification or knowledge. I am not suggesting that they should be lawyers but I do suggest that they should have a knowledge of their powers and how precisely they are expected to carry out their powers. That involves a degree of training. It seems to be a fundamental error to give these wide powers to people who are untrained and who are not responsible to any particular group, disciplinary body or disciplinary or complaints system.
The Minister informed the House that at present only the Garda Síochána and certain officers of the Revenue Commissioners exercise the existing powers of search confered by Customs and Excise legislation and that it is not intended to change this practice. I do not care what the intentions of the Minister are. When the Offences Against the State Act was made part of the statute law of this country, the intentions of the Legislature were very different from the practice and operation of the Act as it now is. The courts have interpreted the Act literally and in accordance with its ordinary meaning. It is not good enough in the area of basic civil liberties to rely on statements of intent. The law is the law and the rule of law requires that it should be carefully tailored to meet the exact need for which it is being enacted and that it will go no further than is reasonably necessary to achieve its aims.
Therefore, anybody who has proposals to invest in a particular class of the community powers of an extensive kind which they can operate in respect of other persons has a relative duty to come before this House with a tailor-made and tight definition of the people to whom these powers are to be given and to exclude from the possible exercise of these powers — as a matter of law and not as a matter of ministerial intention, which is something that can come and go like the will-o-the wisp — people who ought not to exercise them. It is not good enough to say that the Revenue Commissioners are men who act in good faith and that they will employ only people who in their judgment are for the time being suitable to carry out these powers. The simple fact is that an inexperienced trainee on his very first day in his job as a public servant is given these powers, potentially, under this Act and there is no legal redress or remedy to somebody in respect of whom those powers are invoked and who suffers as a consequence. That is unacceptable.
The Minister tells the House in his memorandum that there are 675 such officers at present, all of whom carry identification which must be produced on request. As Deputy McCartan has pointed out, and so far as I can see, most of them operate in plain clothes. I appreciate fully that at some points of entry and exit a considerable number of Customs and Excise officers wear their uniform but those who are about the business of detecting abuses frequently wear plain clothes. I have seen them doing so and I know that they do so.
The Minister assures the House in the memorandum that it is intended that the new powers of search sought in this Bill will be exercised by the 675 officers only. If that is the Minister's intention why does he not bring in a law to that effect? If he is saying that these 675 people are the ones to whom these powers are intended to be given why not put down a statutory definition which restricts those powers to those 675 people and to members of the Garda? Why not do so?
It is automatic.
It is not automatic and I will tell you precisely why it is not automatic. On the last occasion the Minister conceded to Deputy Noonan that a public servant who was for the time being asked to assist the Revenue Commissioners or who was transferred temporarily to the Revenue Commissioners would fall within the definition of these officers of Customs and Excise. The Minister later indicated to the House a slightly more disturbing fact — that section 22 of the 1940 Finance Act, provides that every member of the Defence Forces who is authorised by the Revenue Commissioners to act as an officer of Customs and Excise shall have and possess and may use and exercise the powers and authority of an officer of Customs and Excise.
The inexorable consequence of these Acts and the whole customs code being read as one is that every private soldier and recruit in the Army is a potential exerciser of these powers if the Revenue Commissioners ask him to do so. Every recruit has the right in the vicinity — whatever that ridiculously vague phrase means — of an airport or port to arrest somebody, detain him, search him and physically strip him of his clothing provided the member of the Defence Forces is one authorised by the Revenue Commissioners to assist and is somebody who is of the same sex as the person he has reasonable grounds to suspect has controlled drugs on his person. That is too broad a definition. Of course, it is easy for the Minister to come to this House and say that he does not intend, and that it is highly unlikely, that members of the Defence Forces would be used in these circumstances but the fact is that the basic civil liberties are an issue — the liberty of not being arrested except by somebody who knows what he is about and is required by law to know what he is about.
The Minister is bringing in a Bill the second section of which as at present constituted allows members of the Defence Forces to have very extensive powers to search, detention and personal inspection, including body searches, of ordinary civilians just because the Revenue Commissioners authorise them to carry out those functions. This Bill could be drafted so as to exclude members of the Defence Forces from carrying out these functions and the Minister has said that that is his intention, but he will not put that into the law, for some reason. I submit that is wrong. If he wants these 675 people to be the only ones who exercise these powers, why does he not say that notwithstanding section 22 of the Finance Act of 1940, the members of the Defence Forces shall not exercise these powers? Why should he not say that people on temporary assignment to the Revenue Commissioners or under their temporary authority shall not exercise those functions?
The clear way of getting around this difficulty is to require that any person who is intended to exercise these specific new powers contained in sections 2 and 3 should be somebody specially authorised by the Minister for Finance so to do. There is no reason why this should not be done. It would not be the end of the world, or be a huge complication, or cost that much money if the Minister were to agree to an amendment, the gist of which would be to confine these powers to authorised officers as opposed to the generality of Customs and Excise officers which is an unconscionably wide definition in the context of a power of this kind.
Amendment No. 2a on the list of additional amendments states in its first part of the proposed new section 2 that the Minister for Finance where he is of opinion that any officer of Customs and Excise is by his experience and training a suitable person to exercise the powers conferred on an officer of Customs and Excise by this Bill — which would then be an Act — may then by written warrant authorise that officer to exercise such powers.
Then there is the related amendment No. 7a which states that only authorised officers of Customs and Excise would be entitled to exercise these powers. Perhaps the Minister may have difficulty with my drafting and it may not be perfect — that I do not know. I cannot see any reason, if you are going to give these new powers of arrest, detention and strip-searching to individuals, why you should not put in place a reasonable safeguard which is that the Minister or somebody under his control has especially to authorise an officer to be a person who can exercise those powers and that he has to do so by reference to his view of his experience and training. Is there any legitimate reason why an untrained and inexperienced person should be given these powers? I submit there is none. It is wrong, on the face of it, to do so. If the Minister asked 100 people whether they thought that correct, he would be told they did not.
The Select Committee on Crime, Lawlessness and Vandalism asked for equality of rights for customs officers and members of An Garda Síochána but no recruit in Templemore is ever put into the front line to organise the fight against drugs. Any recruit in Templemore who misbehaves in the course of a search is subject to a very rigid and strict disciplinary code. I have no crow to pluck with the public service in general but I will say this, that in relation to the exercise of these powers there must be a very strong disciplinary regime which goes along with such a power.
The Minister, in his reply to Deputy McCartan, mentioned the green and red channels in Dublin Airport. I have seen what has happened at these channels. Most Members of this House have gone through the green channel on occasion and have been stopped and asked to open their baggage. That is a spot check and I am sure that everybody wonders from time to time on what basis a spot check is carried out. Is it that you look shifty, or that the official is stopping every fifth person, or that you look as if your pockets are bulging with excess duty-free goods or whatever? Nobody knows the mind of a customs official, which is probably just as well; otherwise they would simply tailor their appearance or behaviour to suit. This is fundamentally a matter of hunch. I have seen young people, in particular, coming from places like Amsterdam and London, who are not respectable-looking people in suits, being stopped. They have beards, wear anoraks and open-toed sandals and perhaps have a guitar over their shoulders. They are stopped with great regularity and subjected to a much greater degree of scrutiny on the grounds that they are, quite rationally, more likely to be involved — as the customs officer believes — in bringing in drugs for their own use, or are more likely to be of an age group where that type of thing would occur.
In the last analysis, to give somebody a right to stop somebody else, to require him or her to go to a room, to submit to being strip-searched, as this Bill as at present constituted clearly contemplates, requires that those powers must be exercised only by experienced people who have received training, people subject to a strong code of discipline. Just because a smart remark is passed in the green channel, or there is a little reluctance on the part of the examinee, these powers must not be invoked on an arbitrary basis. There must be this co-relative disciplinary code, the sanctions which apply to a member of An Garda Síochána. A member of An Garda Síochána who uses his powers improperly does so subject to the threat that he will be disciplined, fined and punished, in terms of his career and his promotional prospects, if he makes an error of this kind. There is an authority now to consider complaints against members of An Garda Síochána.
It is totally unacceptable that an untrained person without any experience should exercise the same powers without any of the same or co-relative disciplinary inhibitions on his behaviour. It is equally the case that somebody who attempts to exercise powers of this kind should be excluded until such time as somebody in responsibility, such as the Minister for Finance, decides that by reason of his training and experience he is a fit and proper person to carry out these duties. That should not be just a matter of grace and favour on the part of the Minister for Finance, it should be a matter of his legal obligation.
That is why these 675 people to whom the Minister says these powers are intended to apply should be the only persons to whom they apply and, even among them, that it is only those who receive training or who are sufficiently experienced should be entitled to exercise those powers. We as a House, irrespective of party or personal view on many ideological or economic issues, have a common duty as legislators to ensure that civil liberties are protected and that these wide-ranging powers are confined to a group of people who have the requisite training and experience to operate them.
I also put into the amendment, to make it workable and prevent anybody from attempting to avoid its consequences, a presumption that in court proceedings — a presumption which could be overturned, of course — a person who purported to exercise these powers had a warrant authorising him to do so. He could be asked to produce it by somebody who said he did not have it or he could be asked if he had such a warrant. Therefore, there is a concession to practicality, designed to make sure that I am not erecting an insuperable obstacle or a major operational impediment to the proper protection of this country from the importation or wrongful exportation of drugs. It is reasonable, in the circumstances, to cut down the ambit of this power. The right way to do it is to require the Minister, or some officer under the Minister, to exercise a particular faculty of judgment in respect of the capacity and suitability of that person to carry out these powers.
Nothing I am proposing would in any way delay the coming into operation of the Bill and, therefore, the reasons tendered by the Minister for rejecting Deputy McCartan's amendment — with which I disagree — do not apply in this case. It is not the case that by introducing an amendment to this effect the Bill will be delayed in its operation or made more difficult to operate. All it requires is that a warrant of the officer should exist in relation to these specific powers. I know the Minister of State will say that every officer of Customs and Excise has written identification and a warrant of appointment but that does not mean that he is trained and qualified to exercise these powers. I am suggesting that these powers require a degree of subtlety and training which, as the Bill concedes, are difficult and sensitive.
I wish to refer the House to section 2 (1) (i) (c) which says that where a search of a person being detained involves removal of clothing other than — and then there is a list of external clothing — no officer or person of the opposite sex shall be present unless that person is a designated medical practitioner or the officer considers that the presence of that person is necessary by reason of the violent conduct of the person to be searched. It is quite clear from that phraseology that strip searching is contemplated, that external clothing can be removed in the presence of an officer of the opposite sex but that when you come to non-external clothing, in other words, the ordinary clothes that a person wears which, I suggest, include underwear or overwear, it could only be done in the presence of a person of the same sex. That, by implication, clearly indicates that there can be strip searching of a person detained under this section.
A search of a person may be carried out by a designated medical practitioner. Does that include internal searching? I do not want to be excessively crude but if we are talking about vaginal or anal searches, why are we not told that that is what is being discussed? Can that be requested by an untrained and inexperienced 18 year old who just happens to come within the definition of a Customs and Excise officer? That is a a very draconian measure, that a young man or woman on their first day at the airport are give the right, because they are customs officers, to request a medical practitioner to assist in an internal search of another citizen's body. It is a very far-reaching power; we read about it in Armagh and say it is wrong — perhaps some of us say it is a necessary evil — but it is certainly something which will give rise to very considerable disquiet. Why should it be open to people without experience or qualifications to do that as a matter of law? Why should we have to depend on the good intentions of the Minister of State, which are his intentions now but which may not apply in some isolated Border post or airport on a bank holiday weekend when nobody will have access to the courts to put things right?
We should adopt an amendment which confines these powers to people who have been expressly authorised by virtue of their experience, age and suitability, to exercise those powers and to carry them out. It is not opposition for opposition's sake. This is the stuff of which civil liberties are made and the kind of legislation which chips away constantly at civil liberties. I would not mind the Minister taking an obdurate view of this amendment if I was suggesting something that would make the Bill more difficult to operate or more impractical. I am merely suggesting that the Minister for Finance should designate the officers by reference to their age and experience as suitable persons to exercise these powers. If any respect is paid to the concept of civil liberties and to the vindication of people's rights under the Constitution to which we are all subject, I cannot for the life of me see why the Minister cannot accept an amendment which requires him to select those officers who, by their age, experience and training, are suitable people to exercise such powers.
I welcome Deputy McDowell's amendment which affords us the opportunity to revert to the very first issue that was addressed by the Deputies in opposition to the Bill and some of the provisions of the first amendment dealing with the definition of officer of Customs and Excise. It is important that we revert to that issue because we now have the advantage of the helpful memorandum prepared by the Minister as promised in the last discussion. The intent of the memorandum is to identify and clarify the Government's interpreation of the various measures that bore upon the definition of officer within the ambit of Customs and Excise. There has been a great deal of confusion and the permutations and numbers of personnel who could be caught by the definition were becoming almost endless and gave rise to a great deal of concern.
The other benefit of discussing and reverting to this issue by reason of the amendment is that we now realise that, on the defeat of the previous amendment in the name of The Workers' Party, we are dealing with a group of officers who would be exercising their authority without the benefit of supervision by an independent complaints body which was proposed. That being so, it is very important to consider afresh who, and in what circumstances, will people be allowed to exercise the powers to be conferred upon them under sections 2 and 3. The amendment proposed by Deputy McDowell is an eminently suitable one because it throws on the shoulders of the Minister for Finance a positive duty to form an opinion and to issue a warrant of authority to such members of his staff within the Customs and Excise who he feels are the appropriate persons to enforce the powers. That in itself is a useful device to ensure that proper standards apply and that where we invest wide powers of authority in members of the community, they are carried out by persons who have been scrutinised and found to be eminently suitable to carry out the particular duties.
The point was made by Deputy McDowell — and it is a very proper and correct one — that the definition within section 1 of officers of Customs and Excise is so wide as to be all-embracing. The definition of "officer" under that section 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.
If the Minister tells us, in response to Deputy McDowell's amendment, and on the strength of his memorandum, that on Report Stage he intends to introduce an amendment to reflect the intention or, in his view, the restricted definition of that term, I will be happy to sit down and accept that as an achievement. In that event perhaps Deputy McDowell, with grace, will acknowledge that his amendment served a useful purpose. If it is the Minister's intention to give the precise definition of "officer", as suggested in the memorandum, to be that of 675 identifiable persons we will have achieved a lot in this debate but I suspect that will not be so.
The Minister indicated in the memorandum that definitions in other pieces of legislation indicated that not only are we talking about those 675 officers immediately employed in Customs and Excise but about 1,115 officers involved in other work in the area, all the personnel in the public service, the members of the Army, the Naval Service and the Garda Síochána. It is hard to know where the definition will stop. It is because that is such a wide and all-embracing definition that the need for scrutiny at some level is essential. I accept that the memorandum was produced for our assistance but while it contains a stated intent it cannot have impact on our consideration unless it is backed up with a legislative amendment to give effect to it.
Deputy McDowell has recalled the debate on the Offences Against the State Act and what was said about it in the course of its passage through the House. He recalled it was said then that its provisions would be confined to unlawful organisations but we all know that that has not been the case. Some people may say that that is not a terribly bad thing but that was not what was stated when the Bill was going through the House. When the Forcible Entry and Occupation Act was going through the House in 1971 a Deputy, who is well known to Deputy McDowell, indicated to the House that it would never be used to deal with occupations or demonstrations by workers involved in disputes. That was a remark by Deputy O'Malley but, because the Bill was so widely drafted and did not have any specific restrictions, it was later used to deal with trade union members and workers involved in disputes with employers during which they occupied buildings.
Ministerial intent or declaration at the time legislation is presented is not law, is never part of and will never be law. It can never be relied on if a Bill that is widely drafted is used to its full potential. Will the Minister indicate if he intends to introduce a more specific amendment on Report Stage? If he does not I must press him, for all the reasons outlined by Deputy McDowell concerning the range and depth of powers contained in sections 2 and 3, to introduce some form of scrutiny, some form of policing within the Department so that this does not remain the ad hoc regime that seems to leap out from the definition section. I am referring to the number of persons who could be defined as officers within the meaning of the Bill and the use of the words, who is for the time being employed in the prevention of the illegal importation or exportation of goods.
On the last occasion we debated the Bill the Minister said that officers must be afforded the latitude of calling in from the Department, and Customs and Excise, other people to assist in operations that are wider than anticipated. This notion of calling in people for the time being to relieve officials, this ad hoc method, is not a satisfactory way to deal with legislative provisions that have wide-ranging implications in regard to civil liberties. It is important to emphasise that we are not talking about marginal additions to existing legislation. This represents a major departure in policing generally in regard to drugs and the relationship between Customs and Excise and the Garda Síochána in their investigation and detection of drug offences. We are not dealing with just another piece of legislation. Deputy McDowell's amendment is a small gesture to try to ensure that proper standards are applied and that abuses are not allowed to creep in for whatever reason. I commend the amendment to the Minister and I should like to ask him to give it serious consideration.
(Limerick East): I welcome the amendment in so far as it gives us an opportunity to debate some of the issues that arose when we were discussing section 1. I agree with the case made by Deputies McDowell and McCartan. The latter will recall that both of us recited similar arguments at an earlier stage in the debate. It is good that they are being presented again. On the last occasion the debate centred on an amendment in my name which sought to delete the words, “who is for the time being”, from the definition of “officer” in section 1. I withdrew my amendment on the understanding that I would resubmit it on Report Stage if I was still not satisfied about the scope of the application of that definition.
The Minister's explanation in the memorandum is helpful and is more precise than that given on the last occasion when we debated the Bill. If what the Minister says was written into the Bill in some form it would satisfy all of us. We are worried about the wide range of people who could exercise power under the Bill. I am not sure if the suggestion put forward by Deputy McDowell is the best way to confine the powers of the Bill. Legislation such as this that impinges so strongly on civil liberties, legislation that is so necessary to combat the awful ravages of drug abuse in our community and stretches the powers of police officers and customs officers into an area where if abused will impinge on civil liberties, should be examined very carefully. To vest the power in the Minister for Finance to decide who should exercise the powers of the Bill is not the way to proceed.
This is such a serious case it should be left to the House to decide who should exercise the powers. I would prefer an amendment that would change the definition section to the amendment before us which delegates the powers of the House to the Minister for Finance and allows him on warrant to decide who may, or may not, exercise this power. He will be constrained somewhat. He will have to take into account the experience and training of people exercising the power in order to decide if they would be suitable persons. That is very loose. If one has never exercised the power of strip searching previously, how can one's experience be used as a criterion? "Training" is also a loose term. Would it be in order for the Minister to hold a two-day seminar for appropriate officers and then authorise all of them to exercise the powers contained in this Bill?
It would be better than nothing.
(Limerick East): Yes, it would be better than nothing. I agree with the intention behind the amendment and the recital of the arguments made very effectively by Deputy McDowell. However, if the amendment is pressed we will not support it at this point of the proceedings. The appropriate amendment should be made in the definition section and I will be re-entering my amendment to confine the definitions to members of the Garda Síochána and any person in the public service employed in the prevention of the illegal importation or exportation of goods. My main concern is the phrase “who is for the time being”. That phrase makes the definition so elastic that it could extend to any of us in certain circumstances. In serious legislation like this which has the potential to impinge on all our rights the House should decide who has the new power and it should be clearly stated on the face of the Bill. We should not delegate, even to a distinguished member of the Cabinet such as the Minister for Finance.
I thank Deputies for their wide-ranging contributions on these amendments. I think we should deal together with amendments Nos. 2a, 2b, 5a, 5b and 7a. They stand or fall together since they are linked to the concept of an authorised officer as developed in amendment No. 2a.
I agree with that.
Does the House agree to that?
(Limerick East): I agree.
It is agreed.
Customs officers already discharge their functions under a warrant issued by the Revenue Commissioners and accordingly this amendment is unnecessary. I have previously made the point that the powers of search already assigned to customs officers are substantial. The powers here sought are a relatively marginal increment to the existing powers and so the operation of a separate warrant in respect of this Bill is not appropriate. Moreover the Revenue Commissioners are the employers of customs officers, not the Minister for Finance, which illustrates my earlier statement vis-á-vis staff of the Department of Finance.
I want to clear up a number of points. It is not and never has been the intention or the practice to recruit a person into the Customs and Excise section of the Revenue Commissioners and to put him immediately in the front line. Neither upon appointment have such persons been asked to do strip searches, body searches or frisking. Neither has it been the practice to appoint members of the Defence Forces to do this type of work, nor is it intended. We want to maintain the position whereby they would be available as a back-up to assist with, to observe, to maintain and to be of help to the Customs and Excise officers in the carrying out of their duties.
Customs officers receive extensive training. Initially there is a three-month period of preliminary training, followed by on-the-job training as an unattached officer moving from station to station doing different jobs. Inexperienced officers do not operate except under close supervision from senior officers and as part of an experienced team. There seems to be an attitude prevailing in the House that inexperienced customs officers are being asked to do very serious jobs. That has never happened and will not happen in the future. Only those who get a warrant of appointment exercise the powers and already these powers of personal search are available to Customs and Excise officers.
(Limerick East): The Minister referred to those who get a warrant.
Yes. Those authorised as fully trained customs officers receive a warrant of appointment.
It is the present practice.
Warrants of appointment are issued under two statutes, section 4 of the Excise Management Act, 1872, and section 3 of the Customs Consolidation Act, 1876. I will read for the information of Deputies a warrant of appointment. Let us assume, for example, that the chairman of the Revenue Commissioners, Mr. Philip Curran, is issuing a warrant to John Edward Farrell. The warrant will state:
I, Philip Curran one of the Revenue Commissioners, pursuant to the powers in that behalf vested in us, DO HEREBY appoint John Edward Farrell to be an Officer of Customs and Excise, and to be employed on any Duty or Service which we may from time to time direct and approve at any Port or Place, with full power and authority to do and perform all such matters and things as are by any Statute in force relating to the Revenues of Customs or Excise directed or authorised to be done and performed by an Officer of Customs and Excise, and to enforce all laws, regulations, penalties and forfeitures as directed by the Revenue Commissioners, in all which premises the Officer is to proceed in such manner as the law directs hereby praying and requiring all and every Officer of the Government and all others whom it may concern to be aiding and assisting to the Officer in all things as becometh. The said John Edward Farrell to observe and obey all such orders, instructions and directions which have been received, or which will be received from time to time, from the said Commissioners and to hold the appointment of Officer of Customs and Excise at the will and pleasure of the Government. The warrant is signed and dated by the Revenue Commissioner.
That warrant is issued to the corps of 675 Customs and Excise officers. Approximately 80 per cent of those people are uniformed officers, so they are easily identifiable. A new officer of Customs and Excise has the status of unattached officer, which means that he moves from job to job at different stations. He would never be allowed to take part in a strip search or anything of that nature in the early part of his career. He is always subject to disciplinary action if he goes further than he should or is allowed go.
Deputy McDowell who moved the amendment covered a fairly wide area of ground and we will have to accept that the whole range of Customs and Excise law has operated successfully for a century or more. In section 2 we are taking the powers of search for drugs in order to deal with meeters and greeters where a gap exists in the law. Deputy McDowell must be aware, as I am, that substantial powers of search already exist for customs officers and I am satisfied, and I think the House will be satisfied, that these powers have been exercised with restraint and with integrity over the years.
I want to reiterate that the Minister for Finance does not employ Customs and Excise officers, they are employed by the Revenue Commissioners, and that we are not talking about giving these powers out ad lib to anybody, only to the person who holds a warrant, who has extensive training and who is only appointed and given powers after a long period. I have taken into account all of what the Deputies have said and I would like to be as accommodating as I can. I regret that I cannot accept these amendments but I am prepared to accede to a request to have another look at the definition before Report Stage. As the Minister for Finance does not appoint Customs and Excise officers these amendments are irrelevant as such even though we can accept and debate, as we have done, the content and meaning embodied in them. For that reason I ask the House to accept my rejection of the amendments and to accept my undertaking that I will have another look at the definition before Report Stage.
(Limerick East): We have received a very interesting response from the Minister of State and I am glad that he has given a commitment to have another look at the definition. In doing so he might accept the following suggestion. I was interested in his reading of the facsimile warrant. If the Minister of State were to change the definition section so that officer of Customs and Excise would read, “includes a member of the Garda Síochána and any person in the public service employed under warrant of the Revenue Commissioners in the prevention of the illegal importation or exportation of goods”, that would confine it and would satisfy us, in other words, a phrase to include the idea of appointment under warrant of the Revenue Commissioners in the definition section. That would meet my objection and we could take it on from there.
I agree with what Deputy Noonan has said and I thank the Minister of State for demonstrating an openness of mind on this issue. It seems that he could define in the definition section an officer of the Customs and Excise by a qualification that the officer, for the purposes of this Act, must hold a warrant under the 1872 Excise Management Act or the Customs Consolidation Act and the two sections which the Minister of State has cited.
I am only worried about the powers under sections 2 and 3, I am not worried about the other powers. The definition section deals with the definition of an officer of Customs and Excise throughout the whole Act. There are other circumstances where they can do various things where I would be worried about them having special qualifications. This particular qualification is only in sections 2 and 3. I accept that my amendment may have drafting frailties and it may be that the best thing to do would be to provide in sections 2 and 3 that an officer of Customs and Excise should not exercise the power unless he holds a warrant. You are not excluding from the general extension in extreme emergency cases members of the Defence Forces but in relation to that power you do say that a soldier, for instance, can never stripsearch somebody unless he is assisting somebody physically present with him who has a warrant.
It seems that there is plenty of room for manoeuvre. As long as the Minister of State can give me an assurance that he is positively disposed towards the principle of what he stated in his memorandum, which is that the intention is that the power should be exercised by warranted officers under the 1872 Act and the Customs Consolidation Act, I am quite willing not to press the amendment. I do that without asking him to commit himself to the course I have just suggested or to the course Deputy Noonan has suggested. I am sure the principle can be happily accommodated in some way by a fairly short and tightened amendment to the Bill in the Minister's name on Report Stage when he could bring forward an amendment, the gist of which would be that sections 2 and 3 are ones which cannot be the subject matter of an extension or of a temporary appointment of a fellow who happens to normally check for bovine TB or foot-and-mouth disease at an airport to stand in while somebody else is out at lunch. That is the kind of thing that I want to prevent. I want to make sure that people have training. There is no problem about doing this if the Minister of State and his advisers set their minds to drafting a suitable amendment. If I get an indication from the Minister of State along those lines I will pull back amendments, 2a, 2b, 5a, 5b and 7a.
I would like to make a few brief remarks in regard to what the Minister of State has said. I was glad to see that his remarks were drafted cautiously and that the powers are not just being referred to as marginal additions but marginal increments to the powers which already exist. As we are all now looking again at matters I would like to re-emphasise that there is very curious phrasing in sections 2 and 3 which befuddles the mind when one talks about impreciseness. Let us look at section 3 (3) which deals with the power of search on warrant. I would like to quote part of it:
A search warrant issued under this section shall be expressed and operate to authorise a named officer of Customs and Excise, accompanied by such other officers of Customs and Excise and such other persons as may be necessary ...
That is the incredible definition that has not in any way been explained. I suppose we will come to it later when we discuss section 3. Section 3 contains a far more worrying regime than section 2. In the context of talking about marginal additions or increments I suggest that section 3 goes way beyond anything that ever existed in the range of powers of Customs and Excise officers to date.
What is envisaged is, that with the nod of a peace commissioner — we will come to talk about that creature later under section 3 and I will have some very hard words to say about him — or a district justice, Customs and Excise officers would be able to search any building or land anywhere in the State for drugs. This would not have to be in the pursuit of an investigation which necessarily originated from something which happened at an airport. Border crossing or port. There would be no necessity for it to be in the active pursuit of something which had occurred or originated at a point of crossing, port or airport when the officers would be in hot pursuit or in hot investigation of an incident which had occurred at their point of duty.
This is an entirely different order of things. It talks about officers at any stage getting a warrant on an unspecified basis and then within a month enforcing that warrant. In the pursuit of that enforcement they can bring this rather nebulous and curious person with them and such persons as may be necessary. Who decides who the persons are? Where do they come from? Will there be a swearing-in of posses in the high street to head off to invade the properties of persons? Where did this expression come from? Who decides who the persons are and on what basis they become necessary? That notion written into the Bill is worrying and it accentuates the worry about which Deputy Noonan spoke earlier.
To go further, in talking about increments and additions to what was originally there, section 2 allows for, as Deputy McDowell indicated, the body search, the penetration body search, but also it allows for an arrest and detention for the purpose of searches in places that are not terribly well specified. Where does an officer bring a person who is stopped on the road driving a vehicle he wants to search if he decides to take the driver off to a place to be searched? There is no definition in regard to that. This Bill allows for the arrest of a person for the purpose of charging that person if he does not comply with a requirement to be detained or to be searched.
Section 3 allows Customs and Excise persons, as a new departure, to arrest and to detain people until an examination is carried out. The periods of time involved will be far in excess of anything that a customs officer can employ at the moment. A person can be detained until a doctor is summoned and brought to whatever place, or to a point of encounter. What happens if the Customs and Excise officers decided to head off to some remote rural area? The customs officer has power under this Bill to detain and arrest persons until a doctor can be summoned or until some other arrangements are made to enable the examination to be carried out. We could well be talking about hours or even longer until an examination is carried out. We have to scotch this notion of marginal additions because we are talking about a whole new era of policing, a totally new departure, where this legislature envisages that our Customs and Excise officers will move out of their traditional role in the highway accompanied by other unspecified persons who might be necessary to carry out searches under these sections.
The Minister on Report Stage must address these points which are of major concern. They must be addressed in the context of my not accepting that we are dealing with marginalised changes or alterations. Even if I lose this argument and the Minister can convince me by quoting chapter and verse that these changes are marginal, the situation which will exist from the passing of this Bill requires us to address very seriously to whom we will give these powers and under what circumstances. The Garda Síochána are being rapidly overtaken by the Customs and Excise officers with regard to the powers under this section. Gardaí must have two years minimum training, formal in-house training and then on-the-beat training under supervision by an officer with the rank of sergeant or higher for the initial period. Under this Bill men and women will be afforded three months training before going out on the beat so to speak and there is no question of supervision or of the necessity to be accompanied by persons of higher rank. That is another feature of this Bill that must be addressed.
The reason Deputy McDowell's amendment is attractive is that it allows for accountability to this House. If we are not going to have the Complaints Bill, let us have someone who can answer to the Dáil for the appointments, for the misdeeds or the misprints in this thing if it is to be implemented. I can imagine Deputy Noonan, Deputy McDowell and myself putting down questions to the Minister, the present Minister being the man who saw the Bill through, and to the Minister for Finance as the person with overall control, asking about incidents that occur at various locations. We will be asking the Minister, for instance, about the appointment of someone who has overstepped the law or unfortunately misused the powers available. The answer will come back, not from the Minister, but from the Ceann Comhairle saying that the question has been disallowed because the Minister has no authority and no responsibility in this area and that the matter is a matter for the Revenue Commissioners.
I would much prefer the suggestion in Deputy McDowell's amendment which means that the Minister must make a positive decision, must evaluate that decision on general suitability criteria and will be in a position to come back here and answer the questions of Deputies when and if things go wrong. While we would regret things going wrong, it is inevitable that things will go wrong and that mistakes will be made. That is human nature. I am not at all happy that the Minister appreciates the level of concern on this side of the House on the issue, or that he appreciates the urgent need to look very carefully at this definition which, if properly defined, will specify precisely who has the powers and will address in some way the question of who can confer the authority provided for in these sections and will also include some element of training, education and accountability.
All these matters must be looked at on Report Stage if we are to abandon this argument at this point. These are far wider definition questions than relate to merely taking out a few words or the substitution of a formula. These questions are not being addressed at all in the context of this Bill and I regret that they have not been addressed by the Minister and his Department in drafting this Bill. Neither has the Minister addressed the implications of these powers in terms of the numbers, accountability and the training of the persons who will eventually be investigated with such powers.
This matter has been well teased out. While we are dealing with section 2 Deputy McCartan seems to be dealing with section 3 also. We appreciate fully the concern expressed by the House on all matters. In the Seanad we appreciated that and within reason we accepted amendments we thought suitable. We gave them consideration, we came back, maybe we amended them slightly and we accepted them. We improved the Bill in accordance with the wishes of the House, taking into consideration everything that was said and the effect it would have on existing legislation. Nobody in this House, no Minister, Government Department nor Government of any day want to impose extra measures on any officers of State that are unnecessary. If there was not a necessity for them the request would not be before this House to give legislative effect to conferring the necessary extended powers on any officer, in this case Customs and Excise officers.
As regards a recourse any person has, whatever the reason pertaining to any question put to any Minister of any day, at any time, he can complain to the Revenue Commissioners who appoint the customs officers. The Minister for Finance who lays down policy, the Ombudsman and, of course, the courts are options available to any individual pertaining to action taken on misuse of powers imposed or exercised by an officer of the State. I assure the House that we will give detailed further consideration to the definition section. We will try to come up with what we hope will be fairly clear if at all possible. We must take into account the constraints placed on us and on the Customs and Excise officers, the job they have to do and the reasonable flexibility needed, the existing powers they hold, the powers held by the Garda Síochána and other matters. We are taking everything into account. I will come back on Report Stage with what I think feasible and possible. I suggest to Deputy McDowell, in view of that, that he withdraw the amendments he has proposed.
We will withdraw the amendments on that understanding. I do not want to teach the draftsmen how to do their job but I suggest that if the definition of "officer of Customs and Excise" is cut back it would have carry through effects on the Bill which would not be necessary. I am worried about section 2. I am not sure I am worried about section 3 because the remarks I made about civil liberties presumably will be taken into account by the judicial or quasi-judicial control exercised by a district justice or peace commissioner. Really I am worried about section 2, therefore I ask the Minister of State not to worry about the implications in relation to other sections or changing the definition of "officer of Customs and Excise" if he can restrict its ambit to section 2 or perhaps section 3. There are all kinds of references later in the Bill to officers of Customs and Excise doing all sorts of strange, technical things, and it would be foolish to have the simple liberties issue cropping up by inference in relation to their other functions.
We move now to amendment No. 3.
I think it would be in order to ask that amendment No. 4 in the name of The Workers' Party be taken with amendment No. 3 as it is of a similar nature.
Is that agreed?
(Limerick East): The intent is the opposite.
The intent is the opposite, so we would have to take Deputy Noonan's amendment on its own.
(Limerick East): I move amendment No. 3:
In page 3, subsection (1), lines 31 and 32, to delete "at or in the vicinity of any port or airport or the Land Frontier.
We aired this very well on the last day we discussed the issue and I do not want to detain the House very much by going through it again. The inclusion of the phrase "in the vicinity of any port or airport" is going to create difficulties when this section is applied. The powers being given to officers of Customs and Excise under this section, as the Minister says, are intended to deal with meeters and greeters. Customs and Excise officers have extensive powers already to deal with other categories of people. If a Customs and Excise officer has reasonable cause to suspect that a person is in the possession of a controlled drug which has been imported or is intended to be exported he may act in certain ways, but the power of a customs officer is confined to a person who is in the vicinity of any port or airport or the land frontier. There are a number of airports in the country. The Minister gave a figure the last day of 50 or 60. The land frontier covers a great deal of ground and when we come to ports I presume the Minister is not confining it to seaports and that it will include river ports of all sorts, whether at Carrick-on-Shannon, Athlone or anywhere else. The definition is wide enough to include any pier or jetty where a boat comes in either under its own steam or otherwise, whether it is a row boat or anything.
When one examines this phrase in a Bill which on the face of it purports to confine the areas in which a particular power can be exercised by customs officers, it seems the power can be exercised anywhere in the country. It is possible to claim that any place in the country is in the vicinity of a port or airport. I am sure there are areas in the midst of the mountains which might be exempt, but persons in the midst of the mountains might not be involved in the activities anyway. A third of the population live in Dublin. On the north side you are certainly in the vicinity of Dublin Airport. If you are anywhere in Dublin city moving to the south side you are in the vicinity of the port of Dublin, or Dun Laoghaire, Dalkey or Bray if you move further south. If you move into west Dublin you are coming into the vicinity of Baldonnell. Certainly the whole city is covered by this definition. It would be difficult to find any area in the country where somebody would not claim either for reasons of geography or local pride that they were in the vicinity of a port.
That is right.
Ports of call.
(Limerick East): I do not think it extends to ports of call. I am not making a facetious point for the sake of tidying up the rationality of the Bill. If an officer of Customs and Excise were to proceed against a person in an area which was not within the precincts of an airport that would be challengeable under this section. We could have great debates, and I am sure my colleagues with legal qualifications would enjoy the experience in court of arguing that the officer had exceeded his powers because where he operated was not in the vicinity of a port or airport, and the prosecution would argue very strongly that of course it was and if it was not it was a land frontier. We should remove that uncertainty from the Bill. Persons who are believed to have imported drugs may move far south of the land frontier before the customs officers-get their hands on them. I would be very disturbed if somebody who, on the basis of the evidence, seemed to be involved in importing a significant amount of drugs or was in possession of drugs which were intended for export was to escape the rigours of the law because it was possible, because of this section, to make the case that the officer of Customs and Excise exercising the powers had acted ultra vires because he was not in the vicinity of a port, an airport or the land frontier when he exercised those powers. The phrase should be removed and the section would then read: “an officer of the Customs and Excise who, with reasonable cause, suspects that a person is in possession of a controlled drug ... ”. That should apply anywhere in the country. It seems the section will be applied in that manner anyway and it will apply throughout the country. The Bill should say what we intend it to say and that uncertainty should be removed.
I would tend to disagree with Deputy Noonan that the power should be made general, because it is so loose. It would be possible to tighten it up slightly to provide that an officer of Customs and Excise who, with reasonable cause, suspects that a person at, or in the vicinity of, any port, airport or the land frontier is in possession of a controlled drug which was imported or is being or is intended to be exported through that place, should have this power. Words should be inserted to suggest that you cannot simply arrest somebody because he happens to have marijuana in his pocket, because he happens to have taken a day trip to a port. The intention of the Bill, as I understand it, is to prevent an importation or exportation taking place through a land frontier, a port or an airport. The mere fact that a day tripper happens to come within the vicinity of a port means that he would then be amenable to arrest by the officers of Customs and Excise. That is not the intention of the Bill. It seems that some kind of an amendment could be put down which would relate the suspicion of the officer of Customs and Excise to importation or exportation at the port, airport or area of the land frontier in respect of which the power of arrest exists.
I appreciate what Deputy Noonan is saying, that this provision is very vague but I think it could be made more specific, not by saying what "vicinity" means but by saying that the suspicion must be that the importation or exportation has taken place through the port, airport or land frontier in respect of which the power is being exercised. That could easily be done by inserting the words "was there imported or is being or is intended to be there exported". That would make the position clear. The problem outlined by Deputy Noonan that Customs and Excise officers would have to go around the country looking at their maps to see where they have powers would be avoided and we would not be making the power a general one by giving customs officers a free rein throughout the country.
The effect of this amendment proposed by Deputy Noonan would be to extend the powers of search here sought from the vicinity of a port, airport or the land frontier to the whole State. Adequate powers of search in relation to drugs are assigned by the Misuse of Drugs Act to the Garda Síochána. These powers may be exercised anywhere in the State. The intention of section 2 is to assign similar powers to the customs service, but only in the vicinity of a port, airport or the land frontier. As regards the position alluded to by Deputy McDowell, what we are trying to trap are the meeters and greeters or day trippers who are receiving these controlled drugs, be they cocaine, marijuana or whatever. When these people are allowed to roam ad lib into a port area, an airport area or a land frontier area and receive drugs or have drugs in their possession, the powers must also be available to deal with them, and this is what the Bill is seeking to do.
The powers of search here sought for customs officers have already been assigned to the Garda Síochána by the Misuse of Drugs Acts, 1977 and 1984, with the important distinction that the Garda powers may be exercised anywhere in the State. The Government view the Misuse of Drugs Act and section 2 of the present Bill as complementary. Since Garda powers extend throughout the State, it is proposed to confine these new powers of search for customs officers to ports, airports, the land frontier or their vicinities. Basically, the warrant of appointment refers to these areas and states that the customs officers are appointed to work in a particular environment or area. This is in line with the spirit of the existing powers of search of the customs officers which extend to persons who have entered the State by land, sea or air or who may be suspected of an exporting offence. In the nature of things, these powers are exercised at the State's land frontier or at ports and airports. It would be anomalous and impractical to extend formal powers of search for drugs to customs officers throughout the State. Fewer than 700 officials of the Revenue Commissioners will exercise the powers of search contained in section 2 and, in practical terms, it does not make much sense to empower such officers who are, in the main, on duty at ports, airports or the Border to carry out searches for drugs throughout the State.
Finally, since the powers here sought are powers of search without warrant the Government are anxious that such powers be confined to the appropriate focus of the customs service, the various points of entry to the State. Accordingly, I regret I must reject the amendment.
(Limerick East): I expected that response. It is unwise. Identical powers are available to the Garda Síochána at present throughout the State. There is an attempt here, which is drafted very loosely, to confine the powers being extended to Customs and Excise officers to the areas where Customs and Excise officers normally work. I have a vague memory of reading that Customs and Excise officers operate quite deeply into the country, especially in regard to the land frontier and its vicinity. For example, do the Customs and Excise officers in mobile patrols not come far south, half way to Dublin? Have we not all heard stories of people being stopped 30 or 40 miles from the Border because the Customs and Excise officers were carrying out their duty very diligently and trying to prevent items being smuggled into the State?
Suppose a Customs and Excise patrol involved in searching vehicles 30 miles from the Border on the main Dublin road come across a consignment of drugs being imported into the country and they proceed under the terms of this Bill, would it not be a defence in court that the Customs and Excise officers who were operating without a Garda presence exceeded their powers because they were not in the vicinity of the land frontier. They were a long way from Dublin and therefore they were not near a port. The case would be thrown out of court and the importer of illegal drugs would walk away free because the Minister will not accept the reasonable arguments being put forward from this side of the House.
There is a case to be met but I am not saying that my amendment is the way to do it. I put down the amendment so that I could speak on the matter and highlight the problem. I accept the bona fides of the argument that the Minister simply wants the powers to be exercised where Customs and Excise officers normally work. He does not think it would be appropriate to have the powers vested in Customs and Excise officers extended throughout the State, similar to the powers which the Garda have. I accept the bona fides and the validity of that argument but in the manner in which the Minister has approached the matter he has created a possible gap in the law through which people involved in drug trafficking may walk away free. The Minister should close that gap between now and Report Stage.