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Dáil Éireann debate -
Wednesday, 27 Apr 1988

Vol. 379 No. 10

Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987 [Seanad: ] Committee Stage (Resumed) and Final Stages.

SECTION 2
Debate resumed on 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".
—(Deputy Noonan,Limerick East.)

(Limerick East): When progress was reported we had pretty well exhausted the discussion on this matter. The Bill as drafted confines the new powers being conferred on officers of the Customs and Excise to officers carrying out their duties at or in the vicinity of any port or airport or the land frontier. There were two points which I made on this matter. First, seeing that there are now so many ports and quite a number of small airports in this island country of ours and since this Bill does not distinguish between coastal ports and river ports on a wide interpretation of this section it could be taken to apply anywhere in the country. For example, in the city of Dublin where one third of the population live, if one lives on the north side they are in the vicinity of Dublin airport, if they live in the centre city they are in the vicinity of Dublin port, if they live on the south side of the city they are in the vicinity of Dún Laoghaire and if they live on the west side of the city they are in the vicinity of Baldonnel. It is difficult not to be near water in this country and where there is water there are boats. Therefore, on a wide interpretation of this section it could be taken to apply to anywhere in the country. If that is the case why not say that the Customs and Excise officers can exercise their powers anywhere within the country and why insert a restriction if no restriction is intended? That is one interpretation.

I understand that Customs and Excise officers operate widely around the country. For example, Customs and Excise officers who are based at the land frontier on the Border do not confine their activities to the vicinity of the Border and quite frequently they become involved in activities far down the road to Dublin. What would happen if in the course of carrying out their duties they stopped a truck 30 miles from the border and, arising from a discovery of drugs, the defence subsequently argued that the Customs and Excise officers exceeded their powers because they were not operating in the vicinity of the land frontier or of a port or airport? This is the exact opposite of the first point I have raised.

I think it would be better to clear up this problem now rather than have it subsequently cleared up in court. We should delete the words "at or in the vicinity of any port or airport or the Land Frontier". This would mean that Customs and Excise officers would be able to exercise these powers anywhere in the country. I believe that that should be the position. I do not believe that we should put the pretence of a restriction on officers of the Customs and Excise as I do not believe there would be any restriction on them. They can and will legitimately operate anywhere in the country. The question as to whether they will be required to operate widely throughout the country on their normal daily activities does not arise as that is an internal matter. For reasons of clarity and to take any pretence out of the Bill I propose that we delete the words as indicated in amendment No. 3 and then there would be no doubt about the import of section 2 and the new powers being given to Customs and Excise officers could be validly exercised anywhere within the State.

May I receive the confirmation of the House that it is intended to discuss amendment No. 3 and amendment No. 4 together?

The last day the Minister and Deputy Noonan indicated that because the intent of the amendments is in fact opposite they would have to be taken separately. However, a Cheann Comhairle, I would go along with your feeling on the matter in that as they deal with the same issue it would be useful to discuss them together.

My office and I concur that these amendments are very closely related.

(Limerick East): As we have only a limited amount of time available I have no objection to the two amendments being discussed together.

I am glad that we are going to discuss the two of them together. It would be useful for the purposes of debate to do so.

Amendments Nos. 3 and 4 may be discussed together.

Our amendment which seeks to achieve the very opposite of Deputy Noonan's amendment reads as follows:

In page 3, on subsection (1), line 31, to delete "the vicinity of".

The net effect of this amendment would be to confine Customs and Excise officers to the specific geographical areas of their duties, namely, ports, airports or within the territorial frontier. The ambiguities of the definition make it an unworkable formula. Given the extraordinary powers we are conferring on Customs and Excise officers, given the fact that the Government do not propose a scheme of regulation similar to the one which applies to members of the Garda Síochána and given that we consider that their job is specific to the very definition contained in the name of Customs and Excise we believe they should be specifically confined rather than be given the broadest possible geographical scope, namely, the entire country. We are poles apart from the proposers of amendment No. 3. We say that we should be specific and clear in delineating the extent to which these powers can be operated.

It is important in the first intervention this morning on the amendments to express very deeply felt regret that the Minister of State has allowed the Government to agree to a guillotine on this debate. Very intense concern has been expressed at all stages of this Bill about the impact of the provisions of the Bill and I think the Minister is fully aware and appreciative of that fact. It is very regrettable that the 22 amendments still outstanding and to be decided upon are now being compressed into a two-hour or two-and-a-half hour debate this morning. I do not understand it. We had experience in the last week or two of debating similar pieces of legislation on under-age drinking. I wonder if the Minister would explain at some stage the necessity for this guillotine. Why is he running away——

The matter as to how the measure should be dealt with has been decided earlier by this House and the Deputy should apply his remarks to the amendments under discussion. The matter as to how we shall proceed has been determined.

I accept that entirely although I regret it. I wondered if the Minister could indicate the need for limiting the debate. I do not understand it. There are very important amendments to be discussed but I accept what you have said.

I have outlined in very general terms the reason we approached this section in the way we did. The basic principle is that no officer, peace officer, customs officer or otherwise, has a general power to operate. We bestow on them their powers and authority. In every legislation where we seek to give the Garda the teeth to deal with a problem, we must bestow on them the powers of arrest, of search and so on. The general principles of freedom of the citizen from interference, from stop, from search and ultimate arrest and detention apply. In considering the formula of powers sought to be introduced in the Bill we have had already a very wide-ranging debate on who will have these powers and it is not necessary to go back over them. It is agreed, certainly on the Opposition benches, and the Minister has not fully dealt with this problem, that the definition of "officer" and the person who can use these powers is exceptionally widely drafted. It has to be borne in mind how far geographically one allows those powers to be utilised.

We are concerned that realistic powers and policing authority should be given at ports and points of entry to the country to deal not only with drug traffickers but also with the meeter and greeter at the airport, the person who is used as the pass-over. The point has to be made that the fundamental arm of the authority of the State for dealing with drug dealing and trafficking is the Garda Síochána. It is the departure from that scenario which is incorporated and embodied in this Bill that is of concern. There must be major co-operation, consultation and on-going discussions between the Garda Síochána and Customs and Excise, leading to a situation where, whenever an operation of surveillance, policing or detection involves substantial departure from the port, airport, or the land frontier, it must be under the guidance and supervision of the Garda Síochána. They are the people with the expertise, the training, the discipline and the answerability to measure up to things that may go wrong, confrontations that may arise, or complaints that may emanate from these kinds of operations. That training, experience, resource or answerability does not currently exist within Customs and Excise and it is not envisaged that it will be introduced.

It is fundamentally important to state that, if an operation of surveillance of detection goes beyond the immediate area of work traditionally confined to Customs and Excise, there must be a very active involvement, to the level of supervision, by the Garda Síochána, particularly when one realises and appreciates the extent of the powers being afforded to these people in the broad definition of what a customs officer is. That is why we say there should not be writ at large. Using the term "in the vicinity of" in no way effectively contrains the operation of Customs and Excise officers within our territory, given the large number of airports, aerodromes and ports that now exist.

We do not agree with the point made by Deputy Noonan that virtually everywhere in the country is within the vicinity of one or other of those areas. We say that powers, exceptional and extraordinary, as they are being given to Customs and Excise should be given in very clearly defined terms and that the clarity, which is what we should be looking for, must lead towards restriction rather than towards a writ at large. Given the primacy of the Garda Síochána with all of their resources, that in no way could be seen to act as an undue restriction, an impediment or an interference with the effective workings of the Bill. For that reason I hope the House will support the amendment of The Workers' Party.

While we are taking both amendments together I think it is fair to say that both of them would have diametrically different effects. I will deal with amendment No. 3 first. As I have already indicated to the House, the net effect of section 2 on the existing powers of search of the customs service it to allow searches of meeters and greeters to take place in the vicinity of a port, airport, or land frontier. The customs service already have powers of search of travellers and of persons suspected of an exporting offence.

On 2 March last Deputy Michael Noonan advanced a hypothetical case in which drugs were found in a vehicle which had crossed the Border but which was 30 miles into the State. Existing powers of search would permit the search of such vehicle and its occupants for contraband, including drugs, since they would be, by definition, travellers. The Government's intention here is that the powers of search without warrant already assigned to the Garda should logically extend to the customs service in respect of drugs in the vicinity of ports, airports or the land frontier, which is their focus of activity. For these reasons, in addition to the question of the best application of the available resources, I ask the Deputy to take my point on this amendment.

As regards amendment No. 4 on which Deputy McCartan has spoken at length, it may appear that what I have to say is directly at variance with what I said on amendment No. 3 put down by Deputy Noonan but that is not the case. While Deputy Noonan's amendment is very expansive, The Workers' Party amendment is far too restrictive. The text of the Bill represents a via media between these two extremes.

Very careful consideration was given to the appropriate wording here. I want the House to bear in mind that the principal gap in the authority's powers of personal search lies precisely in the area of meeters and greeters. It is vital that this gap be plugged and that persons who are not themselves travellers can be searched as the section says "in the vicinity of a point of entry to the State". I recognise, of course, that one may state that this term is not absolutely precise but we can be certain that these powers would be used by the customs service with discretion and commonsense.

I hope the House will recognise that an artificial constraint on the power of the customs officer to search a suspected receiver of drugs only within the legal boundaries of a port or airport or at the land frontier will be exploited to the full by drug smugglers and the position of a customs officer at the Border will be particularly ludicrous. A meeter who wished to avoid search under this section as amended need only remove himself a short distance from the land frontier to be immune from search for drugs by a customs officer.

I want to restate that the Select Committee on Crime, Lawlessness and Vandalism recommended that these powers in relation to drugs be assigned to the customs service. That Select Committee of this House sat for a long time and spent many hours putting that report together. We are acting on their recommendations and it is imperative that we move on this very quickly.

I want to emphasise that fears of abuse of these powers are groundless. Deputies need have no fear that hordes of customs officers are going to descend on the farm hinterland of every point of entry into the State to search people for drugs willynilly on the strength of this section. That will not happen. As I have said, the present text of section 2 represents a good halfway house and balance. Accordingly, I regret I have to reject these amendments.

(Limerick East): I can appreciate the Minister's objections to Deputy McCartan's amendment. To frame the section conferring the powers at the airport, or port, or land frontier is too restrictive. The airport hotel would be an obvious example where drugs could be passed from one person to another, and within the terms of this amendment, customs officers could not function——

It is still in the airport.

(Limerick East): I do not think so. I think it is in the vicinity of the airport. Of course, it depends which airport we are talking about. I appreciate that customs officers will not abuse their powers. We never called that into question, but the powers in the Bill should correspond to the Minister's assurances. There is a divergence between what the Minister is saying when he explains how the section will operate and what is in the Bill. The hypothetical example I gave was of a vehicle being stopped by customs officers 30 miles from the Border. Of course, under existing legislation, customs officers have powers to search the vehicle but I was not talking about searching a vehicle. I was talking about searching the driver. This section confers powers on customs officers to search a person if they consider it necessary. They can detain the person for such time as is reasonably necessary for carrying out the search. There are restrictions on the methods by which the person can be searched. He will have to be told why he is being held. A person being detained shall not be searched by an officer or person of the opposite sex. Where the search of a person being detained involves the removal of clothing, other than headgear, a coat, jacket, gloves or similar article of clothing, no officer or person of the opposite sex shall be present. As I said, I am not concerned about the powers to search lorries, because the customs officers already have these powers. I am concerned about the power to search people under section 2 of this Bill. This is where I can see difficulties arising.

I am not making a political point because as far as I can see there is no level of public interest whatsoever in this Bill. Once drugs and drug dealing are the targets, civil liberties are not a major concern, but I am interested in improving the Bill. In my view this Bill is flawed. If customs officers search a person 30 miles from the Border and the case goes to court, and if it can be proved that they did not search the person within the vicinity of a port, airport or land frontier, that will be an adequate defence to get that person free. There may be egg on certain faces when these people walk out of court because of a technicality.

The Minister and his officials are being less than generous in their attitude to these amendments. The case being made from all sides of the House is sincere and is being made with conviction. Neutral observers would argue that the case being made on this side is more convincing than the defence being made on the other side. The points we are making are not being explained away or refuted. I cannot see why the Minister has to dig in his heels and insist that the draft put forward by his officials is the only one possible when a better draft is being advocated on this side of the House.

I want to respond very briefly to some of the remarks made. Deputy Noonan said that in the fight against drug abuse civil liberties are out. That is not the approach that should be taken to legislation like this.

(Limerick East): That is certainly not my view. It is the public view.

I appreciate that that could not be Deputy Noonan's view taking into account his comments on previous amendments, but there is public concern about the extent of the powers being given in this legislation. While it is often very difficult for us because the point can be made that we are going soft on the fight against drug traffickers, I am not happy about the record of the Customs and Excise service in the area of policing. I remember a series of articles run in The Irish Times a few years ago which raised substantial questions about the extensive powers and the apparent heavy-handed way those powers were implemented in the seizure of motor cars, for example, and other goods. I recall an eminent reporter in The Irish Times whose motor car had been held by the Customs and Excise service for many months and he did not, apparently, have any redress.

There are many complaints about goods seized and it is almost impossible to get redress or to find anyone to whom one can appeal or ask if a correct decision had been made. The powers of seizure and retention by the Customs and Excise service are so summary that it is often very difficult to come to terms with them and very difficult to seek redress ultimately. That has been my experience when I have had to deal with Customs and Excise cases. There is a very important dimension of civil liberties involved in this debate. It is not one we should run away from, and it is not one I would be prepared to run away from. Because of the very short time available to us, I will not dwell any longer on that aspect except to say there is concern about it. I believe that the imposition of a guillotine on the debate this morning is an effort to stem a growing tide of concern that has begun to develop.

That is not true; that was an irresponsible statement and the Deputy should know better than to make it.

The Minister has not told us why it is that out of the blue, and when we were engaged in a constructive debate on the Bill, he has introduced this peremptory strike.

The matter has been decided by the House and it is futile to continue to advert to it.

In legislation of this type the term "in the vicinity of" is incapable of precise definition. As Deputy Noonan said, it will provide an opportunity for an out in many criminal prosecutions which will emanate from the legislation. I have seen that happen in road traffic cases. In one case the point being decided was whether the forecourt of the International Hotel in Dublin was or was not within the curtilage of the airport. The prosecution and the defence produced mappers and engineers and there was a lot of argument about what was within and what was outside the public area. I have no doubt that will be exploited in regard to the legislation before us.

My approach is to restrict because of the extraordinary powers being given to officials. We have adequate powers and resources vested in the Garda Síochána. Is there an area in the country which the Minister can name that is not within the vicinity of the land frontier, airport or port? I do not believe there is.

(Limerick East): Maam Cross.

There are many people in Maam Cross who will say they are in the vicinity of the great airport at Knock and many a judge who, for the purposes of making this legislation work from the point of view of the prosecution, would have little difficulty in arguing that. I do not know how far Maam Cross is from the nearest slipway or pier on the coastline; I do not think it is too far.

It is a good distance away.

Such arguments will be trotted out when charges are brought before the courts under this legislation. Any legislative powers or authority introduced on the basis that they will be implemented with discretion and common sense must be called for what they are. I have never heard a debate in the House when draconian and widesweeping powers of authority were being introduced without the suggestion being made that the Garda Síochána, or the people who would be exercising the powers, would do so undoubtedly with discretion and common sense. That will be so in 99 per cent of cases but as legislators we have a duty to ensure that our legislation is fair, is balanced and respects the liberties of the individual and is not legislation that has to fall back on the discretion or common sense of the people implementing it. There will be those whose discretion will not be like that of the Minister or mine and whose common sense will be anything but common. It is those instances that we must take into consideration in our legislation. The Minister has refused to give a precise definition of "officer". He has refused to give a direction on supervision of the exercise of the powers used by the Garda Síochána and he has left us in the position that we must attempt to restrict as far as possible the exercise of those powers. Incidents will occur where discretion and common sense will not prevail and I am concerned about that.

I can accept a lot of what the Deputy has said about legislation but he did not qualify his views by saying that all legislation must have an overall interest in the common good. We have a function in that area. There is a conflict between what is proposed in the Bill and what is interpreted by many people. The section before us seeks to confer the same powers on Customs and Excise officers pertaining to the misuse of drugs as it does on the Garda Síochána. We are seeking to cover meeters and greeters, people who are aiding, abetting, assisting, receiving or directly involved with others.

(Limerick East): Which line of the Bill mentions meeters and greeters?

In my opening speech I said that the whole purpose of the section was to cover meeters and greeters.

(Limerick East): The words are not used in the Bill.

The Deputy has put a pertinent question to me. He said that we could not deal with a cross-Border traveller after he has driven 30 miles inside the Border but the existing Customs and Excise law covers such an eventuality. A vehicle or a person crossing the Border can be searched under existing law anywhere in the State.

(Limerick East): Do we need this section if people or vehicles can be searched once they have crossed the Border?

We are covering meeters and greeters, the third party involved.

(Limerick East): Does the Minister mean that this section cannot apply to an air hostess or an air steward? Is the Minister saying that it will not apply to them because they are not meeters or greeters?

It will, if necessary, apply to them.

(Limerick East): In that event, the provision covers more than meeters and greeters.

One could not say that an air hostess or an air steward is not a greeter. An air hostess and an air steward greet people as they come and go.

(Limerick East): So do we all. Any person who shakes hands or says “good morning” in that event can be described as a greeter.

The Deputy is being facetious.

While I appreciate that this is a Committee Stage debate I wish that Members would direct their questions through the Chair. If they do so, we might make more progress.

Air hostesses and air stewards could be described as professional meeters and greeters. They do a specific job but, if necessary, the law will cover them. In this section we are referring to a third party, the meeters and greeters. The existing law covers travellers and the search of their vehicles or goods. In the section we want to include third parties who are aiding, abetting, assisting or receiving. I should like to ask the House to accept that what is in the section is in the best interests of the common good.

I suggest to the Minister that he should accept that a meeter or greeter at an airport could turn on his or her heels and run with or without the drugs. Deputy Noonan's worries in those circumstances are valid because, if such a person hops into a car and drives off, what are the Customs and Excise officials to do? Are they to give up the chase at a certain point because they have no longer any powers of search once they catch him or her? If they catch such a person and carry out whatever searches they are authorised to do under the section, will they be valid searches?

I should like to suggest a way of arriving at a via media, to use the Minister's phrase. I suggest that section 2 (1) should read that an officer of Customs and Excise who with reasonable cause suspects that a person at or who recently has been in the vicinity of any port or airport and so on. That would give the right of hot pursuit. It would give Customs and Excise officers the right to chase. It would mean that they would not have to give up at some stage in the chase because they might feel that they were no longer in the vicinity of the place where they had seen the meeter or greeter receive and take into his or her possession and put about his or her person, the drugs.

Deputy Noonan's worry is a valid one and the Minister should allow for hot pursuit cases. The way to do it is to extend the right not only to those who are at or in the vicinity of a port or airport but to those who have recently been in that vicinity. In that event where a Customs and Excise officer sees a meeter or greeter driving away from the airport and knows what that person has been doing he can give chase, apprehend the individual and exercise his powers when he stops that person. In my view that reasonable compromise would deal with the worries of Deputy Noonan and, at the same time, deal with the concern expresed by Deputy McCartan that the Minister is giving a very extended power to search any person anywhere in the country.

I reiterate that the text of the Bill is based on the Misuse of Drugs Act. Its net effect is to extend powers of search to meeters and greeters of drug smugglers. This was a recommendation of the Select Committee of this House on Crime, Lawlessness and Vandalism.

I am not disputing that, I am just saying we should allow for hot pursuit.

All right, but the Deputy is talking about practical implementation.

I am endeavouring to help the Minister.

I appreciate that, the contributions being made and the advice being offered. We have taken into account everything that has been suggested. I would say to Deputy McCartan that this Bill has been much debated, much more than many others both in this and the other House, and we are continuing to debate its provision. We are not restricting that debate in any way. I would have to say that in this instance the best advice available is that we have found the best balance possible to deal with the position. I would respectfully suggest that it be accepted.

(Limerick East): Deputy McDowell's suggestion is a very good one and would meet the objections I have raised. I cannot see any reason — except a certain amount of stubbornness on the part of the Minister and his officials — for their not accepting this. Deputy McDowell's legal opinion — as does Deputy McCartan's — carries more weight than mine. They are the people who will be skilfully putting forward defences along the lines I have suggested when action is taken under the provisions of this section. I have made the case. If the Minister wants to continue being stubborn I am sure he will be without my help. On the other hand, if Deputy McDowell wants to indicate that he will move such an amendment on Report Stage, he will have my support and I will withdraw my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 3, subsection (1), line 31, to delete "the vicinity of".

Amendment Nos. 3 and 4 were taken together. Is amendment No. 4 withdrawn?

No, I am asking that the question be put.

Question put: "That the words proposed to be deleted stand".

Will the Members who claim the Division please rise in their places?

Deputies De Rossa, Mac Giolla, McCartan and Kemmy rose.

As fewer than ten Members have risen in their places I declare the question carried.

Question declared carried.
Amendment declared lost.

The names of those dissenting will be entered in the Journal of the Proceedings of the Dáil.

(Limerick East): I move amendment No. 5:

In page 4, subsection (1), between lines 24 and 25, to insert the following:

"(ii) Nothing in section 2 (1) (i) will prevent the use of X-ray equipment, in carrying out a search, if in the opinion of an officer of Customs and Excise there is reasonable cause for its use.".

Section 2 is the most significant in the Bill and we have been discussing it for the past half an hour. The powers being conferred are those to search persons and also the powers to search any vehicles consequent on the stopping of a person. Customs officers will be able to search persons if an individual customs officer considers it necessary for the purpose of preventing importation of drugs. He will be empowered to detain the person for such time as is reasonably necessary for carrying out the search under certain conditions. I understand that the Minister already amended this section in the Seanad and has imposed further restrictions in regard to people being detained not being searched by a person of the opposite sex.

The Minister also accepted amendment No. 2 (i) (C) which states:

Where a search of a person being detained involves removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no officer or person of the opposite sex shall be present unless either 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.

Amendment No. 2 (i) (D) states that a search of a person may be carried out by a designated medical practitioner. Different kinds of searches are possible under powers conferred on the Garda Síochána, customs officers and other sections of the security forces, for example, prison officers. It seems that when the Minister accepted these amendments in the Seanad he had in mind that, on occasions, a search would extend to intimate body searches. If removal of clothing was not involved we would take it to mean that a person was simply emptying his or her pockets or being frisked by hand over their clothing as in a film when a gun is being searched for. We are all familiar with the cinematic version of a person being searched up along the legs, down the back and round the front. That is one kind of search and the other is where the clothes are removed and searched individually by an officer. The person's underwear is also searched because small quantities of drugs, which could cause great problems in the country, can be secreted in a very small space.

Once the idea of a doctor being present is introduced and accepted by the Minister, we have gone beyond the removal of clothing, the search of clothing and the inspection of the naked body. When a doctor is present, it seems to be envisaged that intimate body searches will take place. Intimate body searches have been carried out in the prison system on occasions and they involve an examination of the orifices of the body. If the orifices of the body are to be examined, it is proper that a medical practitioner should be present. Indeed, the Minister goes so far as to say that the search may be carried out by a designated medical practitioner. For the life of me, I cannot see why a doctor needs to be brought in to search somebody's clothes or to see if somebody's clothing is removed with dignity — if it is possible to remove one's clothing with dignity and appear naked in front of strangers. The idea of a doctor being present must mean that there will be intimate body searches. It is self-evident from the section and other Members may wonder why I am pressing the point. I am doing so because the Minister said previously that there was no question of the Bill involving intimate body searches. He said it was a total misinterpretation of the Bill and that it only involved searches of clothing and so on.

My amendment might obviate the need for intimate body searching in many cases because I am asking that nothing in the section will prevent the use of X-ray equipment in carrying out a search if, in the opinion of an officer of Customs and Excise, there is reasonable cause for its use. Someone could be X-rayed in cases where drugs are swallowed and this is an appropriate power to confer on officers of Customs and Excise. It might, in practice, be a far more dignified method of search than the search of the orifices of the body as envisaged in the section as amended in the Seanad.

If we went to the trouble we could all remember occasions when people were arrested. We could all produce newspaper cuttings which show that such and such a person had swallowed cocaine in a plastic container and imported drugs into the country in that fashion. Such stories and incidents have had common currency among police forces and officers of Customs and Excise. Therefore, it seems one of the more obvious ways of bringing drugs into the country is to swallow the drug in some kind of sealed container which will not burst in one's stomach and kill one. This has been practised extensively in the importation of narcotics. Therefore, I am putting a saver into the section here where if in the opinion of a customs officer an X-ray is the appropriate way of searching a person, the designated medical practitioner may under section 2 (1) (b) (i) (D), X-ray the person.

I am not as familiar with the abuse of drugs in this country as I was when I was Minister for Justice. I am not sure how rampant the use of heroin is in inner city Dublin, for example, but certainly it was rampant in 1982 and into 1984. Very strong action was taken at that time and people reputed to be leading drug importers got very extensive prison sentences, but I do not think the traffic has been stopped. Nobody could say in this House or anywhere else that the actions I took as Minister and that the Garda took very effectively have prevented the importation of heroin, that there is not widespread abuse of heroine, for example, in the inner Dublin area and that that continues, although maybe in a less organised fashion. Statistics from drug treatment units such as Jervis Street Hospital bear that out.

Against that background it seems the answer I got from the Minister for Finance in reply to a question on Tuesday, 24 March, this year is surprising. I asked the Minister for Finance the number of drug seizures made by officers of the Revenue Commissioners at or in the vicinity of — we are very familiar with that phrase now — ports, airports and the land frontiers in the years 1985-88 inclusive, the quantity and type of illegal drug seized on each occasion and if he would make a statement on the matter. When I got the reply in tabulated form obviously that deprived me of the opportunity to comment or ask supplementary questions at Question Time because I did not know what was in it until after Question Time. It deals with cannabis, cannabis resin, cocaine, heroin and other drugs. There were a certain number of seizures of cannabis, as one would expect. Cocaine has never been a big problem in this country until recently. Maybe it is an emerging problem now. A combination of cocaine and its newer version, adulterated cocaine known as "crack", may become an increasing problem. Heroin is a problem and the drug problem here has always been heroin-related. In my experience it was heroin one had to beat, particularly in Dublin city, if one was to make any kind of attack on the drug problem.

Consider the number of seizures of heroin in 1985. There were two seizures at or in the vicinity of Dublin Airport, 50 grammes in one and five grammes in another, and 50 grammes of heroin is a significant seizure. At Cork Airport there were no seizures, Dublin Port no seizures, Cork Port no seizures, Rosslare Port no seizure. In 1986 — I am confining myself to heroin again — there was one seizure at Dublin Airport of 28.54 grammes, again reasonably significant. There was no seizure at Shannon Airport, no seizure at Cork Airport, no seizure at Dublin Port, no seizure at Cork Port, no seizure at Rosslare, Foynes or Kinsale. In 1987 at Dublin Airport there was one insignificant seizure, one gramme of heroin, at Shannon Airport, Dublin Port, Cork Port, Rosslare, Castletownbere, and Crosshaven no seizure. In 1988 up to 22 March for which period information was available when I put down the question, at Dublin Airport, Dublin Port, Cork Port, Rosslare and Killybegs there was no seizure of heroin. I am not too sure what the basis for the variation of the ports indicated in the table and whether that is where customs officers were active in drug prevention but there were no seizures.

I want to pose two questions. Is this an indication of a very low importation of heroin? I do not believe that is right. I think significant quantities of heroin are coming into the country and the evidence of that is on the streets. If I am right and importation of heroin is significant — there is a significant level of addiction — how is it getting in? Where is it coming from? If it is coming through the authorised ports and airports, is it a problem with the law, staffing levels, practice, training or efficacy of the customs officers on duty?

Where there is a problem on the ground, which problem I claim has diminished during the past three or four years, it is surprising, to say the least that the level of seizures is nugatory. I would like the Minister's comments on that. Should we look beyond the Bill? If I put down a question next year when this Bill will have been in operation for 12 months, will we have similar statistics and a reply to the effect that no matter what powers Customs and Excise officers have they are so busy, that they have so many other things to do, that their information is so poor and that there is a lack of co-operation with police forces abroad? Is that the explanation? In effect, are we codding ourselves here? Are we going through something of a charade? Are we giving extra powers to people who over the past four years seized nothing of consequence except for the two seizures at Dublin Airport?

I am asking the question in all sincerity. I am not making any kind of attack on customs officers who have a very difficult life. It is curious that when the problem was still very serious, especially on the streets of Dublin, nothing of significance was seized at the ports by customs officers. Could the Minister explain this? At the end of all our work and the time we have taken here, will nothing be seized either?

We have talked about the problems along the Border and I have posed a hypothetical case of the difficulties there. As far as I can see, from the reply I have referred to there have been no seizures at all on the land frontier. Is it reasonable to believe that no drugs are crossing the Border? Certainly there are no seizures there. Again, the Garda and the customs officers have problems along the Border other than drug smuggling, but it poses a bigger question and against that background I have doubts about the efficacy of what we are doing here. The powers being conferred are necessary but I doubt if they will be any more effective than the powers which existed over the past four or five years.

I am trying to strengthen this section. I think some drugs are imported as I suggested, by swallowing. If those involved in searching, especially medical practitioners, have the power to X-ray people it would somewhat strengthen this section of the Bill.

The question is that the amendment be made.

(Limerick East): I would like to hear the Minister's views on it.

I thank the Deputy again for his detailed contribution. I appreciate very well the objective of Deputy Noonan's amendment, to equip as fully as possible the Customs and Excise service in combating drug smuggling. The Deputy's amendment would have the effect of allowing an individual customs officer to X-ray individuals stopped for search in the vicinity of a port, airport or land frontier. This most certainly is not a power which the Government wish to seek. I believe the X-ray of a person should only be for the purpose of medical diagnosis. In such a case the danger of radiation damage is balanced by the higher good of the pursuit of the appropriate course of treatment for a particular illness. In my view it would not be warranted to permit the X-ray search of individuals for other purposes. Regular travellers could be exposed to a very unhealthy level of radiation over a period of time and there is obvious danger to them and to pregnant women in subjecting them to non-medical X-ray. A balance must be struck between the rights of the individual and the needs of society as a whole.

The Deputy referred to the amendment I accepted in the Seanad following an excellent debate. The State in any of its services or agencies has never used intimate body searches, nor does it contemplate it now.

(Limerick East): That is not correct. It was used in Portlaoise. What does the Minister think they do?

Where does the Minister think they found the explosives on Rita O'Hare?

The State does not engage in regular compulsory body searches except in isolated cases after due consideration. In the normal search of people going in or out of the country it is not standard practice. We accepted an amendment to the effect that a search may be carried out by a designated medical practitioner if the person wishes to subject himself or herself to that examination. We accepted the amendment in order to give that right to the individual.

(Limerick East): If there is no intention to search intimately, what is the necessity for a doctor to be present?

If customs officers were suspicious that a person might be carrying drugs in the orifices of the body and if that person was not prepared to co-operate, he or she could call for a doctor to do an examination.

(Limerick East): Now the Minister is saying there will be an intimate body search.

Voluntarily. It will not be mandatory.

(Limerick East): Who would volunteer for an intimate body search? It is not like volunteering to sing a song at a party.

We appreciate that but at least we are trying to find a balance in the implementation of a service in a dignified and humane fashion which respects the rights of the individual. We have been talking in the course of this debate about civil liberties and protecting the rights of the individual. We have to find a balance between the overall common good which must be protected by the State and the rights of the individual. This is the bottom line.

(Limerick East): Does this section, in the Minister's opinion, permit of intimate body searching?

Not compulsory body searching. It may be done voluntarily.

Where is the voluntary element?

A search may be carried out by a designated medical practitioner.

(Limerick East): Or may not.

At the discretion——

(Limerick East): Of whom?

——of all parties involved.

That is not in the section.

The amendment was inserted to ensure that the right of the individual would be protected. If a person wishes to have a medical practitioner present to do the body search, that option is available. The right is there for the customs officer to call a doctor.

(Limerick East): To do what? An intimate body search?

(Limerick East): An examination of the orifices of the body.

If the person subjects himself to that.

(Limerick East): Where is that stated in the section?

That is the purpose of it.

(Limerick East): Where is it stated that the person must volunteer? On the face of it power is given to the customs officer to search a person. Now the Minister is defining “search” as intimate body searching and a doctor may do that rather than a customs officer under certain circumstances. Where is the voluntary element?

The definition of "search" does not include intimate body search.

(Limerick East): The Minister has said that it does.

The definition of "search" does not include compulsory body search.

Where is that definition?

We can go back to the section but we will not go along the same road again.

There is no definition of "search" in this section.

(Limerick East): It is stated that a customs officer may without warrant search a person. That is a compulsion. Now the Minister has defined “search” as an intimate body search.

The existing power of search does not include intimate body search.

(Limerick East): This is the new power of search.

We are extending the power of search to customs officers under the Misuse of Drugs Act. It is the same power which the Garda Síochána have. Existing powers of search do not include compulsory intimate body search. Deputy Noonan should be aware of that.

It is stated that a search of a person may be carried out by a designated medical practitioner.

Subsection 1 (b) (i) (D) states that a search of a person may be carried out by a designated medical practitioner. This gives flexibility to a customs officer, if the person being searched is non-co-operative and if the customs officer is suspicious, to call a medical practitioner to do the search. This protects the right of the individual. The doctor is substituted in place of the customs officer. Deputy McCartan has been clamoring about protecting the rights of the individual.

(Limerick East): That is not the issue.

We are not taking compulsory powers of intimate body search nor do we seek them.

(Limerick East): Then where is the need for a doctor to be present?

If a person is non-cooperative and the customs officer feels that he would be constrained in his job in doing this search, the right is there to call a doctor to do it. The involvement of a third party would protect the dignity and rights of the individual. I do not think we could go any further than that.

(Limerick East): Is the Minister seriously suggesting that a doctor be present to take somebody's clothes off?

If requested.

That is not in the Bill.

(Limerick East): It is not stated in the section.

That is not the information we have. Our colleagues in the Seanad would not accept that. The amendment under discussion relates to an X-ray. I have clearly stated that we are not looking for those powers because it would be dangerous to do so. I regret that we have to oppose this amendment. The Deputy has made some points regarding the success or otherwise of the Garda and the customs officers. He has asked whether this Bill is a charade. I submit it was because of his efforts that this Bill was initiated. It is before the House as a result of his efforts. If this is a charade then he created it. I do not believe we are taking part in a charade. We are here to do a job. We must update the law and synchronise the powers of customs officers with those of the Garda in the complex fight against drugs. There has been some success and the best this House can do is to ensure that the powers available to deal with drugs and drug trafficking are adequate.

We do not know what the volume of imports of illegal drugs is. There is no evidence at present which shows that drugs are coming in via stuffers and swallowers. A balance must be struck between the rights of the individual and the needs of society as a whole. That is what we are trying to do. We are trying to get that balance in the interests of civil liberty, in the interests of the rights of the individual and in the practical implementation of law which is passed in the best interest of the common good. Most emphatically, the Government would not wish to seek the powers inherent in Deputy Noonan's amendment and I regret that I must oppose it.

I understand why the Minister is reluctant to have X-ray examinations of people on a random basis but I understood that the purpose of Deputy Noonan's amendment was that, in the course of an examination of a person who has been detained for the purpose of search, it should be open to Customs and Excise officers to employ, with the assistance of a medical practitioner, X-ray equipment to detect whether or not there is somewhere on the person or in their body a secret cache of drugs. I understood that is what the amendment was designed to achieve.

(Limerick East): That is how it was drafted also.

It now transpires that the Minister's view on the effect of this section is different from the view of anybody on this side of the House who has been considering it up to now. When I spoke on the last occasion I made it clear that I thought body searches of an intimate kind were involved and that this might, in certain circumstances, involve the search of bodily orifices. From a layman's knowledge and some professional experience of what has and has not hapened in the drug scene in Dublin, I know there have been cases where drugs have been imported wrapped up in prophylactic condoms and sealed and swallowed or inserted into an orifice of whatever kind. Are we now being told that if the Garda or the Customs and Excise officers suspect that somebody has drugs in those circumstances they have no power whatsoever to investigate the matter and no power to invoke the assistance of a medical practitioner to find out if it is the case?

If they have top grade information that a man or a woman has inserted drugs into an orifice of his or her body, is it now being said that the Garda or Customs and Excise officers have no power to investigate the matter unless that person voluntarily submits to having that issue decided by a search? That is very remarkable and if it is being stated here by the Minister as the law and the intention of the Government in bringing in this law then, in so far as the intention of any legislature is relevant, apart from what is written in the Act, it seems that a huge loophole is going to be opened up. Are the Government now saying that there cannot be an intimate body search and that people who chose to be swallowers or stuffers, to use the Minister's phraseology, are to be given free entry into the country confident that they cannot be searched? That is a remarkable state of affairs.

The Minister says the purpose of the section and its effect is that the designated medical practitioner — and it is not stated who he is designated by, which is a curious omission since in the Road Traffic Act where that phrase is used the person is designated by the member of the Garda Síochána who is carrying out the examination — can only carry out the search where that is requested as an option by somebody who is about to be searched. That certainly does not leap out from this section. The section states that a search may be carried out by a designated medical practitioner and I can tell the Minister that a court would interpret the word "may"— and I think Deputy McCartan would agree with me — as equalling the word "must". If you say something "may" be done by a particular person it will be interpreted as "must". The word "may" does not simply mean it is an option to be exercised by somebody.

If there is an option, where is it stated in the section that it is the option of the individual? It is not stated once that the person being searched may request to be searched by a medical practitioner. Who will make the decision as to whom the medical practitioner shall be? That is not stated in the section and as it presently stands I can assure the House that a judge — in so far as one can presume what a judge will do — reading that section for the first time would certainly not take it as giving an option to the detained person to decide whether he or she wants to be examined by a medical practitioner or a Customs and Excise officer and that the choice of medical practitioner lies with the Customs and Excise officer or with the person in question.

The word "designated" in the Road Traffic Act means designated by the person conducting the compulsory process. The word "designated" in this section does not seem to suggest — unless I am wrong and I cannot see it in the definition section in this Bill — that it is a designation that is open to the person. The phrase "designated registered medical practitioner" is used in the Road Traffic Act and the word "designated" means designated by the member in charge of the police station. The word "designated" in this section does not have any meaning. Who is to designate the practitioner? I do not believe it would be accepted for one minute that it means designated by the person who is detained. If the medical practitioner is not designated by the person who is detained, is the Minister claiming that this section will allow the Customs and Excise officers to select a doctor and allow the person to make a choice between being searched by that doctor or being searched by a Customs and Excise officer? I do not believe that follows.

Taking subsections (1) (i) and clause (D) together, section 2 reads "An officer of Customs and Excise may without warrant search a person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for carrying out the search provided that a search of a person may be carried out by a designated medical practitioner." How does that imply a choice for the person being searched? I believe it does not and a court would certainly hold, ambiguous as it is, that if there is any ambiguity there is no right on the part of a Customs and Excise officer to search because it is clearly stated who can carry out the search of a person. Section 2 (1) (i) (C) states:

where a search of a person being detained involves removal of clothing, other than head-gear or a coat, jacket, gloves or similar article of clothing, no officer or person of the opposite sex shall be present unless either 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;

If the Minister is now saying that the effect of section 2 (1) (i) (D) is effectively that, at the option of the person being searched, he can request that if be done by a medical practitioner, All I can say is that he has not made that into law and it is not the ordinary commonsense interpretation of that section as it now appears. The Minister has to make it clear to the House, because he is bringing the legislation through and is responsible for amending it and making it workable, whether he is saying clearly to this House that under this section any person who secretes in any orifice on his body controlled drugs with a view to their importation and walks through an airport will be subjected to an intimate body search by anybody with a view to determining whether those drugs are on his person? If the Minister is saying he cannot be, is he standing over the proposition that our law, in this country, is to be that in future people are to be entitled to do that, immune from search, because we are afraid to give a right of search of an intimate kind in any circumstances to the officers of the Customs and Excise no matter how heavy the suspicion is?

Those are propositions which this House is entitled to know about. It is all very well for the Minister to come into this House on the section and say that he wants to amplify powers, but I would be very surprised and disappointed if the Minister is saying one cannot take any adequate step to detect the class he calls swallowers and stuffers and remove drugs from them when one knows as a matter of fact that they have drugs on them, when one may have a report of a person who has seen them swallowing or stuffing a drug into the various orifices. That seems a remarkable state of affairs. I ask the Minister to address the issue and to decide whether or not he is stating that under Irish law nobody is entitled to carry out such an intimate search. If that is the case it is a very radical change.

I do not believe the Garda, under the Misuse of Drugs Act, believe that they have no such power. I believe they have such a power and I believe that on occasions drugs have been found as a result of intimate searches, and those have been done under the Misuse of Drugs Act, 1977. Are we going to now discriminate between Customs and Excise searches and Garda searches? Are we to be told that there are different powers for the Garda and different powers for Customs and Excise officers? The Minister had really better clear up this one because if one cannot search intimately at all, the law is a total farce.

A few preliminary points must be made. Many references have been made to the debates in the Seanad. I have looked at these and I must say I am very envious of the time and facilities and the good productive work that came out of the debate in the Seanad. I find it an affront, as a Member of this House, that the same opportunity is not being afforded to us to tease out some of this Bill.

Even on the two sections that we have dealt with so far, we have teased out remarkable misconceptions of definitions in the sections of the Bill. In the first section on definition with regard to officers of the Customs and Excise, the Minister responded favourably to points made by circulating a memorandum. We now find that the Minister has an incredible view in respect of the powers of search with regard to drugs, and I will come back to this very briefly. What more lurks in this Bill that we are not now or are ever going to have the opportunity of exploring? This is very regrettable.

My second point in that context is that I wondered why the Order of Business was drawn up the way it was today. Reference was made to the fact that when the vote is taken in a little over an hour and a quarter, only amendments in the name of the Minister for Finance will stand, I looked at the 22 amendments outstanding to be discussed and not one of them is in his name. Now there has been circulated, in the last hour of our debate, an amendment from the Minister. That is no way to treat this House. The last time this Bill was discussed in this House was on 2 March. Why, therefore, in the last hour of our discussion are we expected to consider an amendment from the Government as we are on our feet considering the implications of other amendments? It is a disgrace that this House is being treated in this way in the context of this Bill. I presume the Order of Business was drawn up with the agreement of parties on the Opposition side and it is terribly sad that that is the way business in this House is dealt with.

The first point I want to make on this section is that I am not fully convinced that Deputy Noonan's amendment is a sensible one for some of the reasons the Minister has advanced. In regard to the use of X-ray as a means of detection, I understand that a drug secreted by swallowing is swallowed in such a way that it can be ultimately passed as waste. Consequently it is constructed to look physically like waste. An X-ray will not tell one way or another whether what one is looking at on the screen is excrement or a drug. For that reason there is a practical problem. If, on the other hand, the drug is not swallowed but stuffed, the application of digital pressure on exploration — and this is where the medical practitioner comes in — answers the question very quickly. I have to say to the Minister that this is going on on a daily basis in police stations.

If the Minister wants to provide for a non-compulsory intimate search, he has to say so because it is not in the section, and he has to put in an amendment. This must be done under paragraph (d) because any court reading that section as it stands would come to the immediate conclusion that a search of a person under paragraph (d) includes intimate searching. The section provides first that the officer may conduct a search, that a person may be detained for the purpose of the search, that a person should not be searched by a member of the opposite sex in any circumstances. Then it provides that if there is a question of the removal of clothing it can be done, but a member of the medical profession, a doctor, can or should be present. Finally there is a search of the person. It goes from the general searching by the officer down to a partial clothing search involving an officer or a doctor, down to the search of the person and that will, inevitably, be defined by the court as meaning intimate searching.

If the Minister wishes to stand over his earlier statement that that is not the intention of the legislation, he must amend it and be clear about it, because what he is suggesting is not in the Bill. What is not in the Bill is non-compulsory intimate searching. What is not in the Bill is any right of a person detained to opt for a doctor. If the Minister wants that he must put it in the Bill because it is not there, and no amount of reading of it will put it there.

I have to suggest that under the current law search, by definition, does not exclude search of the intimate parts of the body. There is no judicial decision to that effect whatsoever. There are pronouncements which suggest that there are constitutional rights to bodily integrity. In the balance of the common good, no court would have the slightest hesitation in saying that, if there is substantial reason to suspect that a drug is secreted in an orifice that search, in those circumstances, would allow for digital exploration by a medical practitioner. There is no doubt about that whatsoever. There is no judicial decision that would exclude the intimate portions of a person's body. The point I am making is that paragraph (d) would be clearly defined by any court or judge as suggesting that that includes and allows for intimate exploration.

If there is suspicion that somebody has swallowed a drug the next step, as I understand it, is for the doctor to administer a laxative and everyone sits and waits. That happens and I have dealt with many cases where it has happened, and in instances where this procedure was unsuccessful within the confines of the police station, the person was followed afterwards, the business having to be dealt with, and the drug recovered elsewhere. That is what happens and that is where the doctor comes in in that context. The Bill allows for a person to be detained for a reasonable period for the purpose of the search.

If, on the other hand, the drug is not swallowed but stuffed, the doctor can initially, by simple digital pressure, fairly reasonably establish whether or not something is secreted, or digital penetration will very easily establish whether what is secreted or hidden away is of interest to the Garda. These are reasonable powers. I do not believe anyone on the Opposition benches would be arguing — and I would not be arguing — for that not to appertain. It has existed and is in practice at present. I believe that the Minister has got himself into a twist on this matter. None of us, as Deputy McDowell has indicated, has read the section to suggest otherwise.

Finally, if the Minister believes that the search should be much more restrictive he must be honest about it, put down his amendment and let us discuss it. In regard to the specific amendment I do not believe it is an entirely workable one. It is incongruous. There is the problem of where the X-ray would take place. Is it expected that X-ray rooms would be established at all the various ports and points or does it mean that the person can be detained for so long as he or she can be conveyed to a hospital where the X-ray can be carried out? I am not aware of a police force anywhere that uses or would have resort to the X-ray as a means of establishing or exploring the possibility of secreted drugs on the person — it does not work effectively. There are other very simple common day means of dealing with it such as the laxative and the finger.

(Limerick East): I interpret the section exactly as Deputy McCartan has interpreted it and as Deputy McDowell has indicated. I have no problem with the section. The powers being conferred by the section are appropriate. They are the powers which the Garda Síochána have at present under the Misuse of Drugs Act. I think that the customs officers should have that power also. I have a huge problem with the Minister's interpretation of the section. If the section is to be interpreted by the courts, as the Minister interprets it, it would be better in the interests of the prevention of drug abuse in this country if the Minister withdrew the Bill. If the Minister's interpretation of the powers of search are as he has stated, this is a serious backward step in the fight against drugs. I do not believe the Minister is correct in his interpretation. I believe that my two colleagues — and especially Deputy McCartan who has recited the section in great detail — are absolutely correct. I put down this amendment allowing X-rays to be used in search because I wanted a detailed discussion on the powers of search in the Bill. The Minister has expressed the views he expressed today at early stages of the debate. He has said on a number of occasions that the section did not confer the power of intimate body searching. I believe it does. I want to focus on that — and I think I have successfully focused on it — by introducing the concept of X-ray to be used in the search. I am not particularly wedded to the efficacy of X-ray or otherwise and if the Minister feels, and his advice suggests, that the use of X-rays would be inappropriate I have no problem with that and I am not pressing the amendment.

As far as I am concerned I want to clarify again that when this Bill was conceived and brought forward it did not confer nor include, nor was it proposed to include, compulsory intimate body searches. The situation has not changed. We must balance the needs of the common good and the rights of the individual. In practical terms if customs officers strongly suspect that they are dealing with a stuffer or a swallower then the Garda Drugs Squad would be involved. The wide ranging powers of the Garda pertaining to detainment and all that——

The Minister told us that this Bill is specifically to give to the Customs and Excise officers the powers which the Garda already have.

We are talking about——

(Limerick East): They are working very well.

We want to be quite clear. I do not need a lecture in law from Deputy McCartan.

I am not here to lecture.

The Deputy seems to be trying to lecture.

(Limerick East): The Deputy is trying to be fair.

Reasonably fair. I want to be fair, too. The position is that we are conferring powers on Customs and Excise officers. They have the right, if they wish, to call on the Garda to assist them in any matter. That right always has been there. If they are dealing with somebody whom they consider needs to be detained or observed for a certain period they can call on the Garda Síochána as they have always done in the past. Co-operation has always been forthcoming. In that way the Garda Drugs Squad would be involved and the legislation under which they operate, would be used to detect, observe and to prosecute or, at least, to get a final decision vis-á-vis any particular individual or any particular situation. I would not want any ambiguity or vagueness about the Bill; I would not want the Bill not to be clear but after due discussion in the Seanad I agreed that we would allow a designated medical practitioner to be involved. I will clarify that again, by an amendment, if the House is prepared to accept it. We will clarify section 2 (1) (i) (D) to read: “A search of the person may, at the request of the person to be searched, or on the direction of the officer or officers present, be carried out by a medical practitioner designated by the officer or officers.”

But not to include an intimate search.

If it does not say it includes an intimate search it is obvious that it does not include it.

I would not agree with that.

It would be my interpretation that unless it clearly says an intimate body search then it obviously does not include an intimate body search.

(Interruptions.)

I want to be helpful and I am allowing this point of clarity to be put forward. Under the Misuse of Drugs Act——

(Limerick East): I will accept the Minister's amendment.

Thank you Deputy.

If the Minister is pursuing his belief regarding non-compulsory intimate body searches, the amendment is helpful. The Misuse of Drugs Act, 1977, and subsequent amendment, give analagous powers, similarly drafted. The part dealing with medical practitioners is additional, it is not contained in the 1977 Act.

That is correct.

The 1977 Act does not say that search shall include intimate body searching.

(Limerick East): That is right.

Nonetheless the Garda carry out intimate body searches without the consent of the person detained. That has never been challenged and, I contend, in terms of the balances of it, could not be challenged. The same situation will develop here. A customs officer who comes into court and says: "I suspected a secreted cache of drugs, I brought in a doctor and I informed him of my suspicions. I asked the doctor to proceed with an examination and he did so." That would be a search within the permissible terms of the Bill as currently drafted. How do you percieve that it is not? I suggest that if you want to specifically exclude compulsory intimate body searches, you simply say so in your amendment to paragraph (D), by adding the words "to exclude". I do not believe the Minister should want that but if he does, he should include it in his amendment.

(Limerick East): I believe that the Minister's explanation — like many of his explanations — has given rise to a further difficulty. As I understand it the Minister's interpretation of how this would work in practice is as follows: the customs officers who had reasonable cause to suspect that a person at a port or airport was importing or exporting drugs could invoke the powers of this section and could search the person but they would have to stop short of intimate body searching. If they felt they were dealing with a swallower or a stuffer, to use the Minister's phrases, they would call in the Garda Drug Squad. The Garda Drug Squad under the 1977 Act would have the power of intimate body searching. That seems to be the implication of the explanation given by the Minister. That gives rise to further difficulty because the section is drafted as follows: “An officer of Customs and Excise who with reasonable cause suspects” and the trigger to the whole process is that the officer of Customs and Excise must “with reasonable cause suspect”. That is the way these powers are always conferred on members of the security forces. I do not think that if the officer of Customs and Excise told the garda of his suspicions on the basis of inviting him in, it would follow that the garda would necessarily have reasonable grounds to suspect and could subsequently invoke the appropriate section of the 1977 Act. I do not think the phrase “who with reasonable cause suspects” would extend to what in effect would be hearsay from the Customs and Excise officer to the garda. A garda exercising power on the say so of the customs officer could find himself in conflict with the 1977 Act. The Minister's explanation will cause another problem.

In response to both of the Deputy's points I sought to put forward an amendment, and I thank Deputy Noonan for accepting it, which clarifies the position vis-à-vis the designated medical practitioner or on the direction of the customs officer to seek a designated medical practitioner. If the customs officers suspect they are dealing with an unco-operative person who may, in their opinion, be carrying drugs in the body, they can call in the Garda to assist under the Misuse of Drugs Act and under the various other powers conferred on the Garda and in particular the extra powers of detention under the 1984 Act. As Deputy McCartan said, people detained or observed and followed will pass those drugs eventually and then it can be proven that they carried them. It is in order to ensure that continuity of the law exists, that co-operation will be available and that the rights of the individual are protected and also that the common good is protected that we have introduced these measures. The definition of search that we referred to is what is allowable as normal practice under the Constitution and under the law at present.

(Limerick East): With respect, the difficulty is that whether it is the 1977 Act, the 1984 Act or this Bill, the starting point is that the individual must have reasonable cause to suspect. I believe he must form that opinion on his own and I do not think that when a customs officer who has reasonable cause to suspect informs the garda of his reasonable suspicion that the power is then transferred to the garda. I do not think the garda can act on the reasonable suspicion of the customs officer. He has to have reasonable suspicion himself. Under the Minister's sequence of events when the customs officers reach a certain point and when they cannot get involved under the section in intimate searching they then call in the garda to do so. There is a gap and I do not think the gardaí will be able to carry out the function the Minister expects them to carry out. Deputy McCartan may have a view on that matter.

The Deputy just wants to hear from me.

While we accept that the thin bottom line may be close to what the Deputy is saying, I think it is true that one customs officer must form his own personal opinion on any given individual or on any given situation. If the customs officers were not able to do that, there would be no point in having them there at all. In addition, there is always a higher customs officer in charge who can be consulted. This allows for consultation with higher officers and other colleagues and they may form a consensus. Also they may be acting on information available from international customs services pertaining to a particular individual or individuals.

(Limerick East): That is perfect.

They have sufficient information to make a value judgment. After making the value judgment they may believe it is important to get a medical practitioner or they may consult with the Garda Síochána. Based on the information available to them the Garda Síochána will make up their own minds and use the powers available to them to deal with the individual situation. I think that is as fair as we can be, taking into account the rights of the individual, the integrity of the person, the Constitution, the law and normal practice.

To clarify matters, could the Minister again read out his amendment?

Are we taking that amendment now?

We had better have it then.

(Limerick East): I think there is an addition to section 2 (1) (i) (D), — search of a person may be carried out by a designated medical practitioner who has been designated by the officers of Customs and Excise.

To clarify the point further, a search of a person may at the request of the person to be searched on the direction of the customs officer or officers present be carried out by a medical practitioner designated by the customs officer or officers.

(Limerick East): I wonder could we circulate it?

Can we have that circulated?

Acting Chairman

Shall I read out the amendment? A search of the person may, at the request of the person to be searched, or on the direction of the officer or officers present, be carried out by a medical practitioner designated by the officer or officers.

(Limerick East): Could you refresh my memory on the Order of the House. Are we taking all stages at 1.30 p.m., or are we completing Committee Stage at 1.30 p.m.?

Acting Chairman

We are taking all stages by 1.30 p.m.

Amendment agreed to.
Amendment No. 5, by leave, withdrawn.

Acting Chairman

Amendment No. 5a in the name of Deputy McDowell has been discussed already.

I move amendment No. 5a.

In page 4, subsection 2 (a), line 41, after "an" to insert "authorised".

This amendment is part of a series of amendments which have been discussed already. The Minister——

Acting Chairman

I understand the amendment has been discussed already.

What I am worried about is that at the time it was discussed the Minister indicated that he would consider bringing something forward on Report Stage and there was an implicit promise in that that he would consider taking on board what I have said. Now we are in the position that all Stages are to be taken together and there has been no carry through, so to speak, on what I thought to be the Minister's undertaking to accommodate the amendment.

Acting Chairman

I am advising the Deputy that he cannot open the discussion again but he will be allowed to make some remarks.

The Minister indicated when these amendments were taken that he was going to bring forward his own proposals to meet the issue and I do not see them here.

I have given consideration to this matter.

Tell me the worst.

An officer of Customs and Excise is an official who holds a commission or warrant issued and signed by a Revenue Commissioner. The commission is issued under two statutes, section 4 of the Excise Management Act, 1872, and section 3 of the Customs Consolidation Act, 1876. The basic entry grade to the Customs and Excise preventative service is assistant officer of Customs and Excise. While such an officer is issued with a commission or warrant shortly after entry to the service this is done so that an officer can be legally covered while on the job training. As a trainee an officer is closely supervised and always works with experienced staff. A trainee or any officer abusing the powers granted to him would be subject to disciplinary action. A trainee is also on probation and any indication that he or she abused powers would result in the termination of his or her probationary appointment. Assistant officers are appointed initially in an unattached capacity and move from station to station and from job to job within stations to ensure that they get the maximum training and the maximum opportunity to gain experience in their careers. All the time he or she is formally monitored.

Sometimes after six months he or she attends a month long formal course in all aspects of Customs and Excise. Even after this course and for a number of years he or she would be regarded as a junior officer and is forbidden by instructions from engaging in strip searches or any other matter except under the control of a superior officer.

I hope that clarifies the position.

I had thought there would be a Report Stage debate and Deputy Noonan and I had discussed matters relative to Report Stage. The position now is that this will become law today. I am fortified because while the discussion was going on in this regard I took a look at the only textbook in Irish law on powers of search with relation to the control of drugs, which is Peter Charleton's book, Controlled Drugs and the Criminal Law. There is nothing in that to suggest that the Minister's interpretation of the powers he has given to Customs and Excise officers in this Bill is correct. There is nothing to suggest that the wording as chosen in this Bill confines it to outside the body searches.

The practice — Deputy McCartan knows this well and I also but from less experience than he of this kind of territory — is that garda carry out intimate searches and have not one extra shred of power under any law, as I understand it, to conduct a search of the inside of a person's body than the Minister is giving to custom officers under this Bill, not one extra shred of statutory authority to do this. The powers the Minister is giving are exactly coterminous with the powers of the Garda Síochána. They are not greater or smaller. If the Minister is saying on behalf of the Government that his customs officers will not, when this Bill comes into law, have power to direct a body search by a medical practitioner, I am telling him that it follows then that the Garda do not have such powers right now. There are no "stuffers and swallowers" provisions especially arranged so that the Garda can exercise additional powers to those that the Minister is now conferring.

The section with which we are dealing, clearly, closely corresponds to the exact powers given under the Misuse of Drugs Act, 1977, as amended. I am asking the Minister in those circumstances to withdraw the Bill now, not to proceed to enact it into law. He would be doing so under a misapprehension of law. I am not here to lecture the Minister on law and do not think that Deputy McCartan is attempting to do so either, but it seems that the advice which the Minister is receiving in relation to the legal consequences of this Bill becoming law is not correct. This is the last opportunity for either legislative Chamber of this House to look into the matter. It will become law if passed by the Dáil. We are being told by the Minister, on advice which I consider to be incorrect, that this precludes intimate body searches. If he is right on that, so do the 1977 and 1984 Misuse of Drugs Acts. If he is right on that, as Deputy Noonan has said, the law is taking a step backwards. I have no doubt that some inventive lawyer may persuade a judge to listen to this debate and to the Minister's arguments as to what the law actually means. If a judge listens to the Minister's interpretation and if that is put in the weighing scales in some court case, as Deputy Noonan says we are going backwards. We are giving a charter now to abuse the law by simple recourse to stuffing and swallowing.

Acting Chairman

I cannot allow further discussion. I know you have said that you were proceeding on the basis that there would be a Report Stage. Is the Deputy withdrawing his amendment? He will have an opportunity to vote at 1.30 p.m. according to the opinion he is expressing now.

I appreciate that. The Minister has told the House just now that an officer of Customs and Excise holds a warrant or commission. It is all very well and that may be the law now, but the day this Bill becomes law an officer of Customs and Excise will be extended for the purposes of this Bill to include a member of An Garda Síochána and any person in the public service who is, for the time being, employed in the prevention of the illegal importation of drugs.

We have debated all that before.

The Minister has again told the House, unfortunately, something which is not the case, that an officer of Customs and Excise is a person who holds a warrant or commission. This Bill proposes to extend that to any person who is for the time being employed by the State, either temporarily or permanently, to assist an officer of Customs and Excise. That is the unfortunate fact and there is no point in suggesting that the definition is not very wide; it is extremely wide. I have made all these points before and there is no point in pressing them again but I think that the Minister is mistaken in this.

I have a very brief observation to make on this. Looking back on the Official Report and my notes——

Acting Chairman

I cannot allow a debate. I can let you make an observation if you like.

I want to make an observation on this topic of an authorised officer. While we debated this before, we withdrew from the debate on the undertaking that the Minister would look at the matter before Report Stage. Deputy Noonan, for example, indicated at the beginning of March last that he would be bringing in an amendment specifically along lines to suggest that an officer who was warranted by the Revenue Commissioners be the term used. On all the amendments and the issues debated so far in this Bill, the Minister at one stage or other indicated that there would be clarity by Report Stage and we proceeded in our discussions on that basis and in that direction. The reason we are being denied the opportunity of debate on Report Stage is that the Minister does not have answers to some of the reasonable points that we have made. This is a very regrettable development.

I join with Deputy McDowell in saying that because the Minister has got himself into so many twists on the interpretation and understanding of some of this legislation, perhaps it should be withdrawn. If it is not to be withdrawn and we want to make progress, at least the Minister should before 1.30 p.m. consider a motion, that would be agreed to without difficulty, that this matter be extended beyond the 1.30 p.m. period to another day so that we could explore some of the amendments and issues spoken about, including this one on the notion of designating in some way, authorising or warranting customs officers by whatever mechanism or control. We have listened to the Minister on that and I think that he should listen to us. I am beginning to worry if every time I stand up I am considered to be lecturing; I am not. I am very concerned about this legislation which is falling asunder the more we debate it.

Acting Chairman

I have to tell the Deputy that the debate cannot be extended after 1.30 p.m. An order was made in the House this morning that the debate would be concluded at that time.

(Limerick East): On a point of order——

Is there not a mechanism available to the House that Standing Orders allow for an alteration, by agreement of the House, to the Order of Business already agreed?

Acting Chairman

I have to obey the order before me.

(Limerick East): On a point of order, is it not permissible that we agree here that all Stages not be taken by 1.30 p.m.?

Of course that can be done.

(Limerick East): Our difficulty is that we came in here under the impression that we were strengthening the legislation to prevent the importation of drugs into the country. If the Minister's interpretation of the powers of search is correct, it will, as Deputy McDowell has said, run from this Bill back to the 1977 measure. Not only will he not be giving the powers that we thought he was giving to Customs and Excise officers, but he will be taking away power from the Garda Síochána which they thought they had. That is a very serious retrograde step. It would be a pity that a debate which began with agreement that the most stringent powers compatible with civil liberties should be conferred on customs officers to prevent the scourge of drugs in the country should result in a situation in which the defences of the State are weakened. They certainly would be if the Minister's interpretation that the Garda have not the right to intimately search those who are suspected of importing drugs is accepted in court. If that interpretation is accepted we have a serious problem and this thing falls apart with the most extraordinarily serious consequences.

I am glad the Whip is here now. We have a very serious difficulty. The interpretation of the Bill now is not in line with our interpretation of the section. We are doing a serious disservice by insisting that the debate finishes at 1.30 p.m. We should proceed, with the agreement of the House, to consider amendments but we should have a Report Stage subsequently because there are now serious and frightening difficulties.

Acting Chairman

Would the Minister of State like to reply to the points made?

I would point out that there has already been agreement following meetings of all the Whips, that all Stages of the Bill should be completed today. I cannot see what has transpired since that should change that situation. Most legislation before the House is of a highly technical nature and this Bill is no exception. This Bill has been before the House for some considerable time. I am sure Deputy Noonan will agree that it is in the interests of everybody that this legislation should be finalised as quickly as possible. We have had an opportunity to go through the Bill on previous occasions and agreement has been reached to conclude all Stages. I cannot see any reason why that should be changed.

(Limerick East): The Whip does not appreciate the difficulties. This is not just an impulsive intervention. The Minister has now defined the section of the Bill in a manner which suggests that the powers which the Garda have been exercising for the last number of years will no longer be available to them. That will be a serious breach in the defences against the importation of drugs. We want this Bill to go through along these lines. It does not answer our position to vote against it at 1.30 p.m. but we require explanations. We would all agree a ready passage to the Bill. We do not even want a prime time debate on it. I will take it at any time, late into the night if that is what facilitates the House. I am not trying to hold this up but there is a serious issue now and I am sure our Whip will not have difficulty with it nor do I think will any other Whip.

It might be worthwhile explaining to the Government Whip that this Bill started out on the basis of a fairly protracted debate on certain aspects of the powers to be given to certain officers. The Minister at that time informed the House that he intended meeting some of the objections raised, if possible on Report Stage. Today we have settled down to discussing one particular power of search, and it now transpires that the Minister has told the House that his advice is that people who import, secreted in orifices in their bodies, drugs into the State are not capable of being searched under this legislation. Looking to the Misuse of Drugs Acts, 1977 to 1984, if the Minister is right in this, then the Garda have no powers to do the same thing in relation to people walking the streets who are involved in the drugs trade. If the Minister's legal interpretation is correct, it follows that people, by secreting drugs into an orifice in their bodies, can become immune from any form of search. That is not the current practice. In the interests of this House and in the interests of democracy, since this is the last occasion on which either legislative Chamber will look at this Bill before it becomes law, we should get an extra couple of hours at any time, be it midnight tonight or whatever, to tease out the implications of this and to have a proper Report Stage.

I join with Deputies in that. Unnecessary confusion has arisen in respect of this legislation and the wider powers of search generally. That should be clarified in the Chamber so that the law is restored to what it should be. We are suggesting no more than perhaps finishing Committee Stage at 1.30 p.m. with a Report Stage to be fixed within whatever period would be reasonable to allow for that type of clarification to be achieved.

This Bill originally came from the previous Government and it has been through the Seanad. The Minister agreed to a number of amendments in the Seanad. It has come back to this House here and it has been debated in great depth. In the circumstances I must adhere to the order of the House this morning and complete all Stages.

The Deputy is doing a great disservice to the status of the law as it currently stands. Unfortunately, some of the things that have been said here may well be used to do down what has been until now a fairly effective piece of legislation since 1977. If anything, we are throwing the Deputy a line to avail of an adjournment of the Report Stage for a couple of hours, until the matter is clarified to the satisfaction of everyone. That is something that should be carefully considered before a decision is made.

Acting Chairman

I would remind the House again that an order was made here this morning and it was agreed on the Order of Business. If the Deputy likes, I will read the order out for him.

I am aware of the order.

Acting Chairman

I am obliged to abide by that order of the House. Is Deputy McDowell withdrawing amendment No. 5a?

I am withdrawing it.

Amendment, by leave, withdrawn.

(Limerick East): Will the Minister accept an amendment at the end of section 2 which would say “nothing in the section prevents the intimate body search of persons”? Will the Minister put that saver in at the end of the section? That saves the law here and the law of 1977.

By a medical practitioner.

(Limerick East): That is in the section anyway. I do not mind how it is drafted so long as we know the intent.

The subsection would need to say that the search of a person would be carried out by a designated medical practitioner and that it may include a body search——

(Limerick East):——and may include intimate body searching.

We are talking about amending the amendment which I brought forward, to include "nothing in this section will preclude an intimate body search of any individual by a designated medical practitioner". Is that right?

I would suggest that the Minister include the words "and may include an intimate body search" to paragraph (i) (D).

I will accept that.

(Limerick East): The search of a person may be carried out by a designated medical practitioner, a designated official of the Customs and Excise.

Designated really by the Revenue Commissioners from their panel——

(Limerick West):——and may include an intimate body search.

Can I have the amendment already put forward?

(Limerick East): Instead of being legislators, we are cobbling a Bill together.

I do not accept that.

(Limerick East): It was just an aside.

Acting Chairman

Will Deputy McCartan repeat the amendment he wants?

I suggest that under section 2 (1) (i) (D), on page 4 of the Bill as amended we put in the words "and may include an intimate body search".

I do not know whether "intimate" means anything in law. We have been using it as a politeness here. It should be an internal or an external body search.

As far as I am concerned "intimate" is sufficient. When we talk about a body search we mean an external body search but if we use the word "intimate" it means internal.

(Limerick East): If we were to conclude Committee Stage at 1.25 p.m. we could deal with this matter on Report Stage.

I am agreeable to that.

(Limerick East): The officials would then have a chance to look at the wording.

Acting Chairman

May I take it that what is to be added is "and may include an intimate body search"? Is that agreed? Agreed.

(Limerick East): The Minister of State has already added on another bit to section 2(1) (i) (D).

That was an addendum to the amendment.

Acting Chairman

Does the Deputy want me to read out the amendment?

(Limerick East): Yes, the amendment to the amendment.

Acting Chairman

The amendment as amended reads: "To delete section 2(1) (i) (D) and substitute "a search of a person may, at the request of the person to be searched, or on the direction of the officer or officers present, be carried out by a medical practitioner designated by the officer or officers and may include an intimate body search," Is that acceptable?

(Limerick East): It is acceptable to me.

I would much prefer the word "internal" but if you prefer the word "intimate" so be it.

Amendment to the amendment agreed to.
Amendment, as amended, agreed to.

(Limerick East): I move amendment No. 6: In page 5, subsection (4), line 23, to delete “£200”, and substitute “£1,000”.

The type of offence which arises here is the offence which would have met the maximum fine of £200 at the time the Bill was drafted. In legislation which has been introduced in the intervening period penalties have been increased. I think that a maximum penalty of £1,000 is more in line with present practice than a figure of £200.

I agree with that.

I also agree with it.

The principal penalties for drug possession and dealing are set out in the Misuse of Drugs Acts. These range from a small fine to life imprisonment. Subsection (4) of section 2 provides for a level of penalty where a person fails to comply with a requirement under the section. For example, a customs officer may require a person to move a vehicle to a place more suitable for a search of that vehicle. A similar provision exists in section 6 of the Misuse of Drugs Act, 1984 in relation to a similar requirement made by a member of the Garda Síochána in the course of a search for drugs. The level of penalty prescribed here is £200 and I therefore wish the same provision in section 2 to carry an identical penalty in the interests of equity. In addition, the level of penalty proposed by the Deputy is too high for the offence which amounts to no more than a failure to comply with a requirement of a customs officer in the course of a search for drugs. Therefore, I would be grateful if the Deputy would accept——

(Limerick East): The Minister of State should accept the amendment and then bring in an amendment which would apply the same level of penalty in legislation where the penalty is now a little dated, such as the 1977 and 1984 Acts.

One of the principles I have seen the Legislature follow in relation to cases of drunk driving is that if you do something with the intention of evading prosecution you should be liable to the same penalty. In other words, there should not be a bonus for a person who is brazen enough to drive his car off to makes it inaccessible or who fails to submit himself for a search and who is unco-operative in a search. Such a person should not know that he faces a lesser penalty than he might face if he was discovered to have drugs on his person. Summary offences are now attracting penalties in the region of £800 and £1,000 and I do not think this one should be an exception.

I accept the points the Deputies are making but the difficulty is that we want to be in line with the Misuse of Drugs Act which outlines a fine of £200. One commitment I can give is that when the Misuse of Drugs Act is being amended we will consider amending this fine also.

(Limerick East): One of the reasons the law in certain respects falls into ridicule is the level of penalties which were set historically and which have not been amended. If we are going to wait for an amendment of the Misuse of Drugs Act, 1977 we could be waiting for a long time. Why not increase the penalties when the issue is now before us and pick up the residual inequalities subsequently? They are not even inequalities, they are just anomalies.

I appreciate that the passage of legislation through the House provides an opportunity to regularise penalties. I am prepared to accept a figure of £500.

(Limerick East): Do we have to spit into our hands?

That is a matter for the Deputy. That practice is dying out.

Is the figure of £500 agreed?

(Limerick East): Would the Minister of State accept a figure of £500 in all of the other amendments where I have proposed that the figure be increased from £200 to £1,000 so that we can get those amendments out of the way?

(Limerick East): I thank the Minister of State.

It would be more appropriate to make reference to that when we reach those amendments. We will take things as they are listed.

I am prepared to consider a figure of £500 where the Deputy has proposed raising the figure from £200 to £1,000.

In respect of amendment No. 6 to section 2 the agreed figure is £500.

Amendment to amendment agreed to.
Amendment, as amended, agreed to.

We will now move on to amendment No. 7.

(Limerick East): I move amendment No. 7:

In page 5, between lines 30 and 31, to insert the following subsection:

"(8) In this section `aircraft' includes a glider, balloon and model aircraft.".

On the Mexican-USA border there is quite a significant traffic of drugs through the use of model aircraft. I would like to have more time to discuss this amendment but I think there is potential for the bringing in of drugs through the use of gliders, balloons and model aircraft. That is quite obvious. The only issue which arises is whether we should allow the courts to extend the definition of "aircraft" to include all flying objects or floating objects or whether we should decide to specify and, in specifying, exclude other types of aircraft which we had not the imagination to envisage. I would like to hear the Minister of State's views on this.

The phrase "vehicle, vessel or aircraft" is left unqualified in section 2 except in subsection (7) where a hovercraft is specifically mentioned. This is because there can be a dispute as to whether a hovercraft is an aircraft or a ship or a vessel. It might be argued that no such ambiguity arises in relation to balloons, gliders or model aircraft but as Deputy Noonan has raised some doubt I will accept the amendment.

Amendment agreed to.

I presume that amendment No. 7a is being withdrawn?

Amendment No. 7a not moved.
Section 2, as amended, agreed to.
SECTION 3.

We will now deal with amendment No. 8 in the name of Deputy Noonan. Amendments Nos 9, 14 and 15 are cognate and amendments Nos. 11 and 16 are related. With the agreement of the House it is proposed to take amendments Nos. 8, 9, 11, 14, 15 and 16 together.

(Limerick East): I move amendment No. 8:

In page 5, subsection (2), line 36, to delete "or a Peace Commissioner".

What is at issue here is who will authorise a search warrant. I am of the view that it would be more appropriate for a district justice to authorise a search warrant in each and every case rather than diminishing the power by extending it to peace commissioners. At one stage in my career I was involved in the appointment of peace commissioners. They are a very honourable body of men and are widely dispersed throughout the country, but I wonder whether they are the appropriate people to make a judgment on whether a search warrant should be issued which would trigger off procedures which could have serious consequences for those whose premises would be searched.

I would like at this stage to refer to the amendments in the name of The Workers Party relating to the parts of the section which refer to a peace commissioner as an enabling authority for the issue of a warrant. I support, as does Deputy Noonan, the view that we should not allow for the issuing of warrants by peace commissioners in these circumstances. I understand the general thrust of the legislation is to draw a close analogy between the powers conferred on Customs and Excise officers and those of the Garda Síochána under the Misuse of Drugs Acts codes. My understanding of the law, Deputy McDowell might help me in this, is that the enabling authority under those Acts is district justices alone——

And peace commissioners.

I stand corrected. The practice is that they invariably have recourse to the District Courts, certainly in Dublin, for the issue of warrants because of their availability and because of the considerable doubts that constitutionally have arisen in the past with regard to the authority of a peace commissioner to issue warrants of this nature. That is a matter that has been agitated before the courts and I believe it is not yet finally determined.

The third ground upon which I would press my amendment to the Minister is that from a practising point of view, in the area of the issuing of warrants, the signing of summonses and the authenticating or authorising of legal documents, I have found a number of disturbing facts I would like to refer to very briefly. While I have no doubt that peace commissioners are honourable and upright people within the community, a certain laxity and a certain deterioration of standards have existed to the extent that we must question whether their position as a quasi-judicial authority should be endorsed or allowed to continue.

The first fact that concerns me came to light in September 1984 when I visited a Garda station in Lucan to see two clients who were detained. I was conducted to a room where I noticed a rubber stamp on the desk. I took an impression of it and it turned out to be a peace commissioner's stamp. That worried me. I retained four impressions and I have them on file. That was a Sunday morning in September and the peace commissioner stamp was on a table in a Garda station.

The next incident I recall observing was in an hotel, a public place in the city. Members of the Garda Síochána were standing at the reception desk and the proprietor, who is the local peace commissioner, directed his assistant to sign on his behalf the sheaf of summonses that were being presented. It was inconvenient for him to sit down and sign the sheaf of summonses the Garda wanted signed. I watched this happen in public view.

The final fact relates to a practice that pertains at present in the city. A peace commissioner, who is constantly and invariably called upon by the Garda Síochána at ungodly hours to assist in the Garda stations in the city, is a registered medical doctor who is almost whole-time employed by the State as a doctor in the investigation of medical forensic examination and examination under the Road Traffic Acts. He is particularly wellequipped for dealing with the unsocial hours of both jobs when needed. In the city of Dublin a peace commissioner, whose function is supposed to be a quasi-judicial one, where the person is independent and is called on to adjudicate on objective facts and give judicial decisions, is virtually, if not almost exclusively, an employee with a medical practice as a forensic officer of the Garda Síochána. That is unsatisfactory. I am not in any way seeking to impeach the integrity of the person involved. I would not do that but the question certainly arises as to whether one could consider that person, moving from one function to another in a moment, as being objective and independent.

Any time I have had to deal with peace commissioners in Garda custody cases, where they currently have the powers of dealing with custody, granting of bail and sitting at informal courts in Garda stations, they were invariably consulted outside the room by the officer involved and they then came in to decide on the issues they had been advised on. There are no proper standards existing. It is in that context that we must review more carefully the extent to which we give authority to peace commissioners where we expect them to act in quasi-judicial areas.

Recently a piece of party political literature — not from my own party — was put through my door. It was introducing the local team, one of whom is a TD and the others are three non-elected persons, each of whom is a peace commissioner. That political party had been in Government for a period of time and used the opportunities open to them. We are all aware that peace commissioners are appointed through political patronage and no-one would suggest that that is wrong. However, I do not think we fully appreciate the role and function that these people are supposed to conduct on our behalf. They have very extensive powers. They can issue warrants to search houses and to summon people to court and they can be called to Garda stations to convene and preside over informal interim courts until a person can be brought before a sitting District Court. In that context they can decide on bail and if they grant bail the terms of the bail and the suitability of the sureties.

This Bill proposes to give peace commissioners authority to issue search warrants that can lead to the search of premises anywhere in the State, in the pursuit of a reasonable belief that drugs can be found. In the course of that search a person found with drugs can be arrested and detained. According to the Minister's amendment that was circulated this morning all the powers pertaining to section 2 in regard to search will, under section 3, apply there. It is an extensive code of enabling authority and power. For the reason I have advanced I do not believe it is desirable, in the balances the Minister has been talking about earlier, that we vest that authority in the office of peace commissioner. The powers are too extensive. It is the view of the Fine Gael Party and my party that the Minister should consider the amendment put forward.

I want to add my support to these amendments. The office of peace commissioner dates back to 1923 or 1924. As Deputy McCartan has said, the appointment of peace commissioners has become somewhat a matter of honour rather than a substantial office. Everyone will accept that the Government line might easily be that these commissioners are an honourable body of men and women who give of their time to the State in a voluntary capacity and work in the interests of the community. All those things are true, I do not want anything I say to reflect on any individual peace commissioner.

I must accept as correct what Deputy McCartan has said, that is, that the office of peace commissioner has very substantial powers, some of which are of doubtful constitutionality — to order people to be detained in custody, to order the destruction of property and so on. The purpose of having peace commissioners was to interpolate in the administration of justice and the deprivation of civil liberties a single independent voice which would investigate incidents and apply objective controls.

My experience has been that peace commissioners do not adequately investigate matters brought before them. Some of them are inclined to carry out their functions as a matter of automatic process on request. As I understand it, they are not given any formal training; nor are they given up to date documents showing them their powers at any given stage; nor are they brought together with a view to updating their information on how they should carry out their functions, such as, are they to give search warrants on the say so of a detective sergeant on a muttered oath and certain information put before them, and what questions should they ask when requests for warrants are made. None of these steps is taken.

I agree with Deputy McCartan that this Bill, when it becomes law, should mark the first occasion these powers are taken from these people and their office, because of its doubtful constitutionality, should be wound up in the near future. The office of Peace Commissioner has not proved to be an effective safeguard. It is a redundant office and, as far as controlling the interests of civil liberties is concerned, it is of very little effect.

The powers exercised by peace commissioners should be given to District Justices or alternatively, the qualifications, experience and knowledge needed by peace commissioners should be specified in a formal amending Bill to ensure that, when appointments are made, the people in question understand the issues on which they are asked to exercise their decisive powers. I agree with Deputy McCartan. Admittedly some people may think it would be better to keep quiet on subjects like this, but I believe peace commissioners as a group, are not functioning adequately. I would prefer to see the office abolished or proper law being brought into effect requiring them to meet, to apply judicial standards and to know the extent and the effect of the powers they are exercising.

Since these are extensive powers, this should mark the first occasion when this House says that the office of Peace Commissioner is a failed experiment. It may have had some function in the twenties but it does not work now. It is not a safeguard. On the contrary, it is undermining the safeguards which would be there if these powers were confined to District Justices.

(Limerick East): I am sticking with my amendments. I do not think that in these circumstances a peace commissioner is the appropriate person to be involved in the issue of search warrants. I do not agree with the more widespread criticism because peace commissioners still have a role to play but not in this legislation.

Deputy McCartan referred to the amendments in the name of the Minister. I take it the Minister is agreeing to amendment No. 12 in my name, but using a different form of words. In effect, it is an extension of the saver clauses agreed in the Seanad. I presume the question will be put at 1.30 p.m. and I just want to clarify that the Minister is accepting the principle of amendment No. 12, but not my wording.

We propose to accept amendment No. 12 (a).

(Limerick East): The Minister is accepting the principle of my amendment No. 12, but not my wording.

(Limerick East): We would like to hear what the Minister has to say about peace commissioners.

All these amendments have the same purpose — to confine the issue of warrants to customs officers to search premises for drugs to District Justices, whereas, as Deputies can see, the Bill provides for such warrants to be issued by a District Justice or a peace commissioner.

Peace commissioners are appointed by the Minister for Justice under section 88 of the Courts of Justice Act, 1924, to perform and exercise the duties and powers as outlined under the Act. These functions include the taking of affirmations, oaths, signing information in relation to passports, declarations in respect of land registry and registration of clubs, signing of summonses, and the signing of search and arrest warrants.

Certainly in the case of Customs and Excise officers, the legal availability of peace commissioners to sign warrants has been extremely useful in the past and there is no evidence whatsoever to suggest that peace commissioners were any less rigorous or more compliant than District Justices in their dealings with the Customs and Excise service.

In the circumstances envisaged in section 3 — the need to search a premises for drugs — speed may very well be everything and it is therefore essential that Customs and Excise officers should have reasonably quick access to duly authorised persons when a warrant is required. Furthermore, section 3 is practically identical to a corresponding provision in the Misuse of Drugs Act, 1984, which assigns similar powers of search under warrant to the Garda Síochána. In the 1984 Act the warrant is obtainable from a Justice or a peace commissioner. For obvious reasons it would not be wise to depart from an enactment already on the Statute Book which has not been the subject of complaint in this area.

Various statements have been made, particularly by Deputy McCartan who criticised three cases pertaining to the office of peace commissioner but he did not tell us what action he took. I do not think it is fair to condemn all peace commissioners because of three cases. Because a lawyer or a solicitor is found negligent and is struck off the register of the Incorporated Law Society is no reason for debarring solicitors from carrying out legal functions. Likewise, we cannot condemn the general body of peace commissioners because of the misdemeanours of three peace commissioners. There must be an officer authorised to sign a warrant available in the interests of combatting drug abuse. I regret that I have to oppose these amendments.

Is Deputy Noonan pressing the amendment? The Deputy will appreciate that I will be putting a global question at 1.30 p.m.

(Limerick East): If the Minister had spoken until 1.30 p.m. we would not have this difficulty.

I could have continued speaking but I gave a commitment, at the Deputy's request, that at 1.25 p.m. we would move to Report Stage. If Deputies do not want to do that I am happy to continue my contribution but the Deputy has an amendment down on Report Stage.

I am putting the question on amendment No. 8.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 71; Níl, 41.

  • Abbott, Henry.
  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Briscoe, Ben.
  • Browne, John.
  • Burke, Ray.
  • Byrne, Hugh.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Gallagher, Pat the Cope.
  • Haughey, Charles J.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • MacSharry, Ray.
  • Mooney, Mary.
  • Morley, P.J.
  • Moynihan, Donal.
  • Noonan, Michael J. (Limerick West).
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Walsh, Joe.
  • Walsh, Seán.
  • Woods, Michael.
  • Wright, G.V.

Níl

  • Barrett, Seán.
  • Barry, Peter.
  • Boylan, Andrew.
  • Bruton, John.
  • Bruton, Richard.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Connaughton, Paul.
  • Cosgrave, Michael Joe.
  • Creed, Donal.
  • Crotty, Kieran.
  • Harte, Paddy.
  • Higgins, Jim.
  • Kennedy, Geraldine.
  • McCartan, Pat.
  • McDowell, Michael.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Naughten, Liam.
  • Crowley, Frank.
  • Cullen, Martin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Avril.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas.
  • Farrelly, John V.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East).
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • O'Malley, Pat.
  • Quill, Máirín.
  • Wyse, Pearse.
  • Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Briscoe; Níl, Deputies O'Brien and Flanagan.
Question declared carried.

As it is now past 1.30 p.m. I am required to put the following question in accordance with the resolution of the Dáil: "That the amendment set down by the Minister for Finance and now disposed of is hereby made to the Bill and the Bill, as amended, is hereby agreed to in Committee, and, as amended, is reported to the House, and Fourth Stage is hereby completed and the Bill is hereby passed".

Question put and declared carried.
Sitting suspended at 1.45 p.m. and resumed at 2.30 p.m.
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