Dáil Éireann debate -
Thursday, 21 Oct 1993

Vol. 434 No. 10

Criminal Justice (Public Order) Bill, 1993: Report Stage (Resumed).

Debate resumed on amendment No. 22:

In page 5, lines 7 and 8, to delete "a breach of the peace or whereby a breach of the peace may be occasioned" and substitute "the commission of a criminal offence".

—(Deputy G. Mitchell.)

Mr. G. Mitchell

I have already made the case for the acceptance of this amendment by the Minister. Section 6 (1) refers to "a breach of the peace or whereby a breach of the peace may be occasioned". My amendment proposes that this very vague provision should be substituted by the words "the commission of a criminal offence". The Minister's amendment No. 23 proposes to delete the word "whereby" in section 6 (1) and to insert the words "being reckless as to whether". I question the use of this language in a section which proposes to make the use of insulting words or behaviour, even in terms of the distribution of leaflets or posters, a criminal offence. Yesterday we voted on an amendment which proposed to replace the word "insulting" with the word "intimidating".

I do not see any reason for the inclusion of vague terms such as "or whereby a breach of the peace may be occasioned" in this section. If one carries a poster with an insulting slogan with intent to breach the peace I suppose some penalty should be applied. However, if a breach of the peace is occasioned by carrying a poster with an insulting slogan then we are getting very close to the situation where the right to free speech is criminalised. I object very strongly to the language used in this section. I have made the case for these reasonable amendments and I heard the Minister's reply.

In view of the fact that my amendments which proposed to substitute "intimidating" for "insulting" were not accepted by the Minister — I was very surprised that she did not accept them — I support Deputy Gilmore's amendment which proposes to delete the section. I am sorry that the co-operation extended by the Opposition to the Minister, and which has been made by her in many ways, is not being extended by her to these sections. We are digging our heels in, so to speak, on this provision which is not desirable, cannot be defended and will not deal in any way with the crime problem as we know it. I do not knw why this provision is included in the Bill if there is no demand for it. During all my years as a public representative I never once heard calls for the carrying of insulting posters or the issuing of insulting leaflets to be made a criminal offence. If they were intimidating or threatening, that is another matter but this is not a priority and since the Minister has not found it possible to accept my earlier amendment and has indicated she cannot accept these, Deputy Gilmore's amendment to delete the section should be supported by the House.

We have made much progress on this Bill and I am saddened that in these sections, which give rise to concern by the law abiding majority, the House has been unable to agree on these amendments. I do not understand why the Minister wants to equip the Garda and the Judiciary with this power when there is no demand for it. It is not needed, it will not in any way reduce the level of crime and yet we are inserting it here. It is being included for the optics and it is regrettable that it will be used in these very vague ways against law abiding people, particularly law abiding youths living in areas where people might not be as knowledgable about their rights.

I am sorry these amendments are not being accepted and I hope this is not an indication that as we proceed to other sections of the Bill there will be a hardening of attitudes because there are a number of items in the Bill which are of grave concern. These sections, as they are being passed here, give rise to grave concern for civil liberties and will put no obstacle in the way of the criminal fraternity. It is unnecessary to include them in the Bill and they are an intrusion on the rights of people who are not breaking the law. People have the right to speak their mind. We have seen this morning how people are being controlled in this House; now we are attempting to control people outside this House. Fortunately, outside this House we have the courts to defend people because I seriously suspect that these sections are unconstitutional and will be set aside at the first challenge.

Mr. M. McDowell

I would like the Minister to indicate at some stage why section 7 is needed separately from section 6. It seems to me that if one were to distribute or display the matters referred to in section 7 it would be engaging in behaviour which was——

Acting Chairman (Mr. Leonard)

I understand Deputy Mitchell was the final speaker and the Deputy cannot contribute at this stage.

Minister for Justice (Mrs. Geoghegan-Quinn)

That is right. It was agreed last night.

Acting Chairman

It was agreed last night that Deputy Mitchell would wind up the debate on this section.

Mr. Gilmore

Only on his amendment.

Acting Chairman

Yes, on his amendment.

Mr. Gilmore

I hope I will have the opportunity of concluding on my amendment.

Acting Chairman

The Deputy can speak only once on Report Stage.

Mr. Gilmore

I would like to reply on amendment No. 25.

Acting Chairman

The Deputy cannot do that. We are dealing with amendment No. 22.

Mr. Gilmore

When we come to amendment No. 25 I would like to conclude the discussion on it.

Mr. Costello

I have not had an opportunity to contribute on this amendment.

Acting Chairman

Deputy Mitchell was concluding the discussion.

Mr. Gilmore

I want to clarify that amendment No. 25 will be put separately to the House.

Mr. G. Mitchell

I will not press the matter to a vote beyond a voice vote but I want to put in on the record of the House that I opposed this section.

Amendment put and declared lost.

Mrs. Geoghegan-Quinn

I move amendment No. 23:

In page 5, line 7, to delete "whereby" and substitute "being reckless as to whether".

Mr. G. Mitchell

I want my dissent recorded. I do not agree to this amendment.

Amendment put and declared carried.

Mr. Costello

On a point of order, I thought it was agreed that Deputy Mitchell would sum up only on amendment No. 22 and that amendment No. 23 was still open for debate.

Acting Chairman

They were all discussed together.

Mr. Costello

They were all discussed together but we have only had a summing up on amendment No. 22.

Mr. G. Mitchell

Only the person who moves the amendment can conclude the discussion.

Mrs. Geoghegan-Quinn

That is right.

Mr. Costello

Has the debate on the section been completed or just on amendment No. 22?

Mrs. Geoghegan-Quinn

May I be of assistance? As of last night my understanding — and I am open to correction from the Deputies who were here — was that we concluded the discussion on all the amendments and when they were being put it was only the person in whose name the amendment appeared who could make a summation.

Mr. G. Mitchell

That is correct.

Mr. Costello

I hope there can be some leeway in regard to this matter because we are trying to be helpful——

Acting Chairman

If the Deputy's name is not affixed to the amendment there is little we can do at this stage.

Mr. Costello

It is an informal agreement. It is not written in stone. I have not made a contribution to date on this matter.

Acting Chairman

The Deputy cannot make a contribution now as it is not the Deputy's amendment. I am now proceeding to amendment No. 24 in the names of Deputies Harney, O'Donnell, O'Malley and McDowell.

Mr. M. McDowell

I move amendment No. 24:

In page 5, line 11, to delete "6 months" and substitute "3 months".

This amendment is fairly self-explanatory. We are suggesting that the penalty for contravention of the section should be three months imprisonment rather than six months imprisonment. I would make the point that I made yesterday in a different context, that three months is a long time for anybody to spend in prison for a minor summary offence. There is no particular reason why we would want to send people to prison for four, five or six months for what is in fact a relatively small breach of the peace. There is no violence involved in this offence. If there was violence involved they would be charged for that violence. This is a behavioural offence, it is a summary offence and I would ask the Minister to agree that with the present overcrowding in prisons nothing would be achieved by a court imposing a four, five or six month sentence which could not be achieved by imposing a one, two or three month sentence.

Mr. G. Mitchell

Unless there is very good reason for retaining the sentence at six months the case made by Deputy McDowell for a three month sentence is reasonable in the circumstances, particularly as I have reservations about how widely drawn the section is. A custodial sentence of three months would be sufficient for this particular offence.

Mr. Gilmore

I wish to support the amendment also which is calling for the reduction of the prison sentence although I must repeat the argument I made earlier that this section does not belong in this Bill. The provisions of this Bill were intended to deal with problems of criminality in our community. Problems have been raised and addressed about various forms of disorder occurring in local communities, on our streets, in public places and which were giving rise to considerable public concern. This was because the Garda did not have the legislative power to deal with them. They could not move people on; could not do anything about groups of people congregating, threatening people and stopping people on the street. They could only do something if they actually caught people in the act committing a specific offence. But what do we find being introduced by the Government? We find a section introduced which is not intended to address the problem of criminality at all but rather is intended to address various forms of political protest, rendering illegal the carrying of various types of placards and banners that may be produced by people in the course of a march or demonstration outside this House or elsewhere. Fair enough, some of them may be regarded as offensive and some may state things in a very exaggerated way. But that is in the nature of political protest.

We are muzzling opposition in this country. Opposition inside this House is muzzled by one set of rules; opposition outside the House will now be muzzled by a different set of rules under the provisions of this Bill. Soon we will be muzzling the Martyn Turners and the cartoonists, which will mean they will not be able to draw caricatures.

Mr. G. Mitchell

Under the provisions of this Bill it will be insulting and a criminal offence.

Mr. Gilmore

Indeed, yes. Under this section a Martyn Turner cartoon depicting a Minister over in Brussels making a hames of losing £600 million for this country, or one of the Tánaiste dropping a ball containing £600 million——

Mrs. Geoghegan-Quinn

The Deputy has lost his vocation.

Mr. Gilmore

——could be illegal because it would be an offence for any person in a public place to distribute or display any writings, sign, or visible representation which was threatening, abusive, insulting and so on.

It is ironic that on this day of all days, when the Opposition inside this House has been muzzled, we find that the very next business with which we deal is a section in a Bill which is intended to muzzle political opposition outside this House. Certainly, I intend opposing it. I have tabled amendment No. 25, which we will reach in due course, the purpose of which is to delete this section in its entirety. We have had enough muzzling today. We have had enough neutering of opposition——

Mr. M. McDowell

On a point of order, I might point out that our amendment addresses section 6, although I agree totally with Deputy Gilmore about section 7.

Mr. Gilmore

I stand corrected by the helpful comments of Deputy Michael McDowell. With the permission of the Chair, I will continue my contribution in relation to section 7 when we reach amendment No. 25 when, as you have indicated, Sir, you will give me an opportunity of responding to the Minister's comments on it yesterday.

Mr. Costello

I must admit that I was being carried away by the eloquence of the Deputy's remarks on section 7.

Mr. G. Mitchell

The provisions of this Bill are all about carrying people away.

Mr. Costello

That, too. Certainly the proceedings in the House this morning were very relevant to the issues being criminalised under the provisions of this Bill. I might point out that section 6 (1) reads:

It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.

I imagine that if those provisions were applied to the proceedings in the House this morning all of us would be subjected to a Garda investigation or at least could be the subject of such investigation.

Mr. Gilmore

Not Deputy Costello; he voted with the Government.

Mr. Costello

In the mad rush to find offenders I might just be picked up and find myself before the courts also. Thanks be to God there is a caveat so that this House is saved from the implications of this type of legislation, but anybody out on the street will be subject to its provisions.

I would remind the Minister that this type of activity could be very much part and parcel of normal political protest and/or demonstration on the streets. Therefore, we must be very careful about what we legislate for in terms of creating a criminal offence.

I hope the Minister will take on board the amendment seeking the deletion of a six months term of imprisonment and its substitution by a three months prison sentence on a number of grounds. Quite clearly the interpretation of what constitutes "threatening, abusive or insulting words or behaviour" is a matter which will be decided differently at the discretion of the authorities than might be interpreted by those who engaged in the particular incident, march or activity that may result in a charge being levelled at them. I contend this provision contains a very subjective element, particularly when one considers the protection afforded to the right to assemble, as enshrined in our Constitution, the right to protest and indeed freedom to protest. I might read into the record the relevant Article of the Constitution, that is Article 40.6.1.ii, which says:

The right of citizens to assemble peaceably and without arms.

Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace ...

"Calculated to cause a breach of the peace" is not the same as something that "occasioned a breach of the peace", that might provoke a breach of the peace, or indeed that might be reckless in relation to a breach of the peace. "Calculated" means something committed very coldly, ruthlessly and deliberately. The Constitution is carefully worded to allow a fairly wide berth in one's exercise of the democratic process. If we are to criminalise anything that may be construed as "threatening, abusive or insulting words or behaviour" then we are travelling a long way down the road which would appear to me to be in breach of specific constitutional provisions. The least we can do is ensure that any penalties to be imposed would not be of a very severe nature. Certainly, imprisonment may not be an appropriate penalty. An extended prison sentence for an offence such as this is probably not only unnecessary but wrong.

In regard to Deputy Gilmore's remarks about satirists and cartoonists, again their caricatures might very well be construed by a sensitive individual as abusive, insulting or likely to provoke a breach of the peace. We must remember that interpretation of "a breach of the peace" can be extremely wide. For example, its interpretation by a member of the Garda may not be the same as its interpretation by somebody who may be the subject of such investigation.

I can give the House a personal example of what I mean. On one occasion I was engaged in a demonstration with another Independent Deputy of this House when we were charged with a breach of the peace, arrested, taken to Store Street Garda Station, subsequently charged with having committed a breach of the peace, ended up in prison and had to be released on a habeas corpus writ. Our breach of the peace amounted to nothing more than standing side by side with others who were protesting on the streets of this city. So one person's interpretation of a breach of the peace may very well be another's interpretation of lawful protest and right of assembly, such as a trade unionist, activist or indeed an ordinary street trader.

I have grave reservations about the provisions of section 6. The very least we can do is ensure that any penalty to be imposed would not be as severe as that incorporated in the section as drafted.

Mr. Callely

Deputy Costello indicated that he had grave reservations about the provisions of this section and its implications for one's constitutional rights, pleading that they would be in breach of a citizen's constitutional rights. He contended that we should reduce the severity of the sentence. I would hope that if any Member felt we were drawing up provisions in breach of constitutional rights and if that fact were brought to the attention of the Minister and proved to be correct, nobody would agree to any sentence, reduced or otherwise.

My understanding is that the Minister is not stopping or preventing the general public who may wish to protest in a reasonable law abiding fashion fron doing so. The words used by all Members who have contributed are contained in the line of section 6 which refers to threatening, abusive or insulting words. That line must be read in conjunction with the following line which states: "or behaviour with intent to provoke a breach of the peace". Most people would agree that if somebody wants to have a demonstration they can do so but surely we cannot allow a person to have a demonstration with intent to provoke a breach of the peace. The general public would not welcome a suggestion that we should allow people to demonstrate in that fashion and with intent to provoke a breach of the peace.

In regard to the proposed reduction in the term of imprisonment from six months to three months, I do not know how the Minister or the parliamentary draftsman arrive at sentences of this nature. I am sure it is worked out on the basis of criminal legislation and that a balanced approach is arrived at. I await with interest the Minister's response. I do not see anything wrong with the amendment and I would be happy to support it if the Minister is supporting it and if there are reasonable grounds for doing so.

Mrs. Geoghegan-Quinn

On Committee State, as all Deputies will recall, the tendency was to increase rather than decrease penalties. I note that no similar amendment has been tabled in relation to section 7 which deals with the distribution of threatening material, etc. It would be inconsistent to provide a maximum penalty of only three months for actual behaviour which was threatening but to provide a six months penalty for the distribution of threatening material, etc. Having regard to the fact that we are tightening up on the threshold at which the offence would be committed a sentence of six months would be warranted for the more serious offences, under this heading. I have listened very carefully to what all Deputies have said and in the light of substantial agreement I am prepared to accept the amendment from Deputy Michael McDowell. Perhaps Deputy McDowell would be prepared to move a similar amendment on section 7.

Mr. M. McDowell

I thank the Minister for her response. With the consent of the Members of the House and you, Sir, I will move an amendment to section 7, if that is permissible.

Amendment agreed to.

Mr. Gilmore

I move amendment No. 25:

In page 5, to delete lines 12 to 19.

The whole purpose of this legislation is to address a problem that has been identified for us regarding public order, and people who are acting in a disorderly way generally in the community. The sections we are debating are not designed to address that issue but rather various forms of protest, street demonstrations and so on. Those sections are addressing a problem we do not have. We have a certain amount of trade union activity which involves picketing of industrial premises, political protests and mobilisation of people for political purposes, the distribution of posters and various forms of literature and so on but we do not have a problem of disorderly protests. Neither do we have a problem with the distribution and display of material which could be regarded as offensive or threatening. This section originated in the sixties when students occupied Georgian buildings, farmers camped on the streets and we witnessed the beginning of the civil rights movement, housing agitation in Dublin and so on. Due to its paranoia — which was confirmed here last night by Deputy O'Malley — the Department of Justice panicked and decided it would have to be dealt with in a legislative way.

Having regard to the experience here this morning it may well be that the prognosis for public demonstration may not be the best. People see on their television sets what is happening in this House and that critical issues of concern to the public, such as the loss of £600 million in assistance from the European Community, cannot be discussed here. They can hear it discussed on radio and television, in the pubs, across the garden wall and they can read it in the newspapers but no matter what procedural method is used by Members of this House to raise it on the floor of the House it cannot be debated or discussed here. In the teeth of one of the major disasters that has faced this country the House adjourns for virtually an entire week without an opportunity of debating the matter. That is a recipe for encouraging public protest and outrage by members of the public and I very much regret it.

Mr. Callely

The Deputy is twisting the facts.

Mr. Gilmore

I very much regret——

Mr. L. Fitzgerald

Is that relevant to the amendment?

Mr. Gilmore

It is relevant because the amendment——

Mr. G. Mitchell

I would ask Deputy Fitzgerald to sit down.

Mr. L. Fitzgerald

I will not sit down on the Deputy's instructions.

Acting Chairman

I would ask Deputy Fitzgerald not to interrupt and to resume his seat.

Mr. L. Fitzgerald

Do you think the Deputy is in order?

Acting Chairman

When I find that the Deputy is out of order I will convey that to him.

Mr. L. Fitzgerald

I will abide by your ruling.

Mr. M. McDowell

We can suspend the Deputy if you wish.

Mr. Gilmore

In this House one needs to duck very fast to avoid suspension.

Acting Chairman

I would ask the Deputy to relate his comments to the amendment?

Mr. Gilmore

I am relating my comments to the amendment which concerns the distribution and display of writing, signs and visible representation. I am anticipating and trying to explain the reason this section should not be in this Bill and how it can be used to muzzle public protests and opinion, by drawing attention to the the fact that members of the public finding that a matter of such grave concern cannot be debated in the House, may decide to mount a demonstration about it. If they show on one side of a banner a picture of Jacques Delors with a bubble from his mouth stating "liar" to the Taoiseach, the Tánaiste and the Minister for Finance on the other side of the banner, will that be regarded, under this section, as a display of written material or a sign or a visible representation that is abusive insulting or obscene? Will the gardaí be called to have them taken away and their banner or poster seized? Will those displaying such banners or posters be subject to a term of imprisonment of three months? In terms of public disorder where will that lead us? We have few enough gardaí. The figures the Minister supplied us with in the House last week show that their number is significantly down on the number recommended as well as the number the Garda state is needed in their corporate strategy. Will their scarce resources be directed to seizing posters, leaflet material and banners from people engaged in legitimate political protest under the guise of public order? That is what this section suggests. This section should not be here at all. It is a hangover from the sixties when the then Fianna Fáil Government thought it could rule forever — just as this Government with its huge majority thinks it can go on forever, that it can make all the blunders it wants and can cost this country hundreds of millions of pounds with each passing day and anybody who objected to that was muzzled by the use of the Chair in this House or by using a section such as this.

Acting Chairman

I ask the Deputy not to make a reflection on the Chair.

Mr. Gilmore

I never made any reflection on the Chair.

Mr. L. Fitzgerald

Let the Deputy admit it.

Acting Chairman

The Deputy mentioned "by the Chair" and I ask him not to proceed along that line.

Mr. L. Fitzgerald

Tell the truth.

Mr. Gilmore

The truth? The Deputy opposite has the cheek to talk about the truth.

Acting Chairman

I ask the Deputies on my left to refrain from interrupting and I ask Deputy Gilmore to refrain from crosstalk and to refer his remarks through the Chair.

Mr. Gilmore

Sir, they are provoking me.

Mr. M. McDowell

Not with intent to provoke.

Acting Chairman

Deputies will have an opportunity to make a contribution.

Mr. Gilmore

I think they are trying to provoke a breach of the peace.

Mr. M. McDowell

They are being reckless.

Mr. L. Fitzgerald

Deputy, you have no objection to that as you have already said.

Mr. Gilmore

I have grave objection to it.

Acting Chairman

Let us come back to the amendment.

Mr. Gilmore

I am referring to a breach of the peace. I have very grave objection to a breach of the peace because I want to see a situation where we do not have breaches of the peace and public disorder. That is precisely why I do not want to see a provision in the Bill that will put the Garda against people engaged in public protest who demonstrate what they have to say in a visual manner.

Let me make it clear that if the Minister does not accept my amendment, I intend to call a vote and, if necessary, to call a division. I think this section of the Bill will undermine the legislation. A great deal of concern has been expressed about using a Bill that is ostensibly to deal with problems of crime to address what is essentially a degree of political discomfort. I object to that very strongly. I do not think it should be included in the legislation and I want to have it excised. I intend to put this amendment to the vote and to ask the House to divide on it.

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

The Dáil divided: Tá, 58; Níl, 38.

Tá

• Ahern, Noel.
• Andrews, David.
• Bree, Declan.
• Briscoe, Ben.
• Broughan, Tommy.
• Browne, John (Wexford).
• Byrne, Hugh.
• Callely, Ivor.
• Collins, Gerard.
• Costello, Joe.
• Coughlan, Mary.
• Cowen, Brian.
• Dempsey, Noel.
• Ellis, John.
• Ferris, Michael.
• Fitzgerald, Brian.
• Fitzgerald, Eithne.
• Martin, Micheál.
• McDaid, James.
• McDowell, Derek.
• Moffatt, Tom.
• Moynihan-Cronin, Breeda.
• Mulvihill, John.
• Nolan, M. J.
• Ó Cuív, Éamon.
• O'Dea, Willie.
• O'Hanlon, Rory.
• O'Rourke, Mary.
• O'Sullivan, Gerry.
• Fitzgerald, Liam.
• Flood, Chris.
• Gallagher, Pat.
• Geoghegan-Quinn, Máire.
• Haughey, Seán.
• Higgins, Michael D.
• Hilliard, Colm M.
• Hughes, Séamus.
• Jacob, Joe.
• Kavanagh, Liam.
• Kenneally, Brendan.
• Kenny, Seán.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Leonard, Jimmy.
• O'Sullivan, Toddy.
• Penrose, William.
• Power, Seán.
• Ryan, Eoin.
• Ryan, Seán.
• Shortall, Róisín.
• Spring, Dick.
• Stagg, Emmet.
• Upton, Pat.
• Wallace, Dan.
• Walsh, Eamon.
• Woods, Michael.

Níl

• Allen, Bernard.
• Barrett, Seán.
• Boylan, Andrew.
• Browne, John (Carlow-Kilkenny).
• Bruton, John.
• Carey, Donal.
• Clohessy, Peadar.
• Connaughton, Paul.
• Connor, John.
• Cox, Pat.
• Crawford, Seymour.
• Creed, Michael.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Durkan, Bernard J.
• Finucane, Michael.
• Fitzgerald, Frances.
• Flaherty, Mary.
• Fox, Johnny.
• Gilmore, Eamon.
• Harney, Mary.
• Harte, Paddy.
• Higgins, Jim.
• Hogan, Philip.
• Kenny, Enda.
• Keogh, Helen.
• Lowry, Michael.
• McDowell, Michael.
• McGrath, Paul.
• McManus, Liz.
• Mitchell, Gay.
• Molloy, Robert.
• Nealon, Ted.
• O'Donnell, Liz.
• O'Keeffe, Jim.
• Quill, Máirín.
• Sheehan, P. J.

Tellers: Tá, Deputies Dempsey and Ferris; Níl, Deputies McManus and J. Fox.

Question declared carried.

Amendment declared lost.

Amendments Nos. 26 to 28, inclusive, not moved.

Mrs. Geoghegan-Quinn

I move amendment No. 29:

In page 5, line 15, to delete, "whereby" and substitute "being reckless as to whether".

Amendment agreed to.

Mr. M. McDowell

I move amendment No. 29a:

In page 5, line 19, to delete "6 months" and substitute "3 months".

That amendment proposes that the penalty of imprisonment under section 7 be reduced from six months to three months.

Amendment agreed to.

Mr. M. McDowell

I move amendment No. 30:

In page 5, line 23, to delete "or 6" and substitute ", 6 or 7".

It appears that the powers under section 8 (1) (a) should extend to section 7 if section 7 is to stand part of the Bill. It is probably an oversight that those words were not included.

Mr. G. Mitchell

I have strong reservations about the wording of that amendment and indeed the wording of section 7. The Garda powers under that section are too great. That section empowers the Garda to move people taking part in a protest and carrying placards displaying insulting words. The wording in the amendment, while objectionable, proposes to extend the provisions to provide consistency, but that would not be in the interest of public order. To be consistent in respect of my earlier arguments I cannot support the amendment.

Mr. Costello

A penalty is prescribed in respect of Garda powers under sections 4, 5 and 6. A person who is guilty of an offence is punishable by a fine or a period of imprisonment. This section provides some further administrative procedures for the Garda which effectively are penalties. For example, a person may be told to desist from acting in a certain manner, to leave the premises immediately and so on. I suggest that the Minister should prescribe the penalties in a different order. The amendment proposes that section 8 (a) should take account of provisions of sections 4, 5, 6 or 7. There is a great deal of concern about interference with civil liberties in the areas covered by those sections. The first penalty under section 8 states that a person guilty of an offence is liable to punishment. The second penalty states that the Garda should first ask the person to desist from threatening, abusive and insulting words or behaviour and be asked to leave the vicinity. A penalty of a fine or imprisonment should be imposed on a person only as a last resort. Does the Minister consider the order of the penalties as listed in the section are correct? Should the prescribed penalties under existing legislation, which are severe, only be resorted to after the Garda direct people using insulting words or behaviour to act in an appropriate manner? It might be more appropriate if in section 8 (b), which refers to Garda powers in relation to protesters or people displaying in writing or on signs what might be interpreted as likely to provoke a breach of the peace, be asked to desist as a first step, and leave the vicinity as the second step. The order of penalties in the section are confusing and somewhat contradictory and perhaps the section might be reviewed before the Bill goes to the Seanad.

Mrs. Geoghegan-Quinn

Section 8 empowers the Garda to direct people who are acting contrary to section 4 in respect of intoxication in a public place, section 5, in respect of disorderly behaviour in a public place and section 6 threatening, abusive or insulting behaviour in a public place to desist or to move these people on. The proposed amendment would give similar powers in relation to section 7. I see merit in the suggestion that the powers of the Garda under section 8 should also apply to people acting in a manner contrary to section 7, particularly having regard to the tightening up of that section in regard to which there is agreement. Despite Deputy Mitchell's concerns I am prepared to accept the amendment moved by Deputy McDowell.

An Leas-Cheann Comhairle

Is amendment No. 30 agreed?

Mr. G. Mitchell

I want my objection to the amendment noted.

An Leas-Cheann Comhairle

The Deputy's objection will be noted.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 31 is in the name of Deputy Gay Mitchell, amendment No. 32, is an alternative and, therefore, the two amendments may be taken together. Is that agreed? Agreed.

Mr. G. Mitchell

I move amendment No. 31:

In page 5, to delete lines 41 to 43 and substitute the following:

"9.—(1) Any person who shall in any unlawful manner wilfully prevent or interrupt the free passage of any person or vehicle in a public place without lawful authority or reasonable excuse shall be liable on summary conviction to a fine not exceeding £500.

(2) Nothing contained in this section shall be construed so as to prevent the exercise of the legitimate rights of citizens to picket, protest, or assemble in a peaceful manner.".

I am somewhat concerned about the provisions of section 9. My amendment proposes an increased penalty. It states that if any person who in any unlawful manner wilfully prevents or interrupts the free passage of any person or vehicle that would be construed as committing an offence which should be punishable by law. However, I am fearful in regard to the wording of the section. Therefore, I propose a change of wording in section 8 (1) and the inclusion of a further subsection which states that nothing contained in this section shall be construed so as to prevent the exercise of the legitimate rights of citizens to picket, protest, or assemble in a peaceful manner. The section consists of only one sentence. It states that any person who shall in any manner wilfully prevent or interrupt the free passage of any person or vehicle in any public place shall be liable on summary conviction to a fine not exceeding £200.

People who wish to make a legitimate protest should not be regarded as committing a criminal offence. For example, if people decided to picket an Ard-Fheis being held in the RDS and delegates were asked to use a gate other that the main one, the protesters should not be regarded as criminals. However, under section 9 those protesters would be construed as wilfully preventing or interrupting the free passage of a person or vehicle in a public place and their protest action would be regarded as criminal. I consider the wording of the section too strong, particularly in respect of trade union pickets.

There are a few very dangerous sections in the Bill. This section does not address the real problem and it has serious implications for the trade union movement and the right to make a public protest in a lawful manner. If the Minister is not prepared to accept my amendment she should delete the section. My amendment reads:

"9.—(1) Any person who shall in any unlawful manner wilfully prevent or interrupt the free passage of any person or vehicle in a public place without lawful authority or reasnable excuse shall be liable on summary conviction to a fine not exceeding £500.

(2) Nothing contained in this section shall be construed so as to prevent the exercise of the legitimate rights of citizens to picket, protest, or assemble in a peaceful manner.".

It is a perfectly reasonable excuse to claim one is picketing because one is exercising one's democratic right to state one's view. To prohibit that right is unacceptable, something which the House should not pass. I do not believe that the Labour Party will support that section and I expect the Minister to delete the section or to accept my amendment. The section as it stands is dangerous and will not be used by the Garda as an instrument to fight criminals. If people protest in an unreasonable manner and block the traffic, it should be an offence; but I suggest that my wording meets that. Nobody should have the right to restrict the free passage of people in the course of their lawful business and that is why I used the words "in a public place without lawful authority or reasonable excuse". I would actually provide for an increased fine from £200 to £500 for such an offence.

I have the strongest reservations about the wording as it stands. I hope the Minster will accept my amendment or withdraw the section completely and perhaps introduce a wider provision in the Criminal Justice (Miscellaneous Provisions) Bill promised for later in the year. I would be surprised to hear that the Minister has not received representations from ICTU, the Irish Farmers' Association, the Association of Residents' Associations and the National Association of Tenants' Organisations as this is an improper intrusion into the democratic right of people to protest. I hope the Minister accepts the principle of what I am saying.

Mr. M. McDowell

I am always worried about creating a serious offence for behaviour which is reasonably tolerable in society. The fine to be imposed indicates that this is not considered to be a very serious offence. At a later stage I will propose that we give the power of arrest for this offence, chiefly because there is no point in having a law preventing sit down blockages of streets, if the Garda have not a right to arrest the people involved. It is futile if people keep moving on the street and the Garda have to allow that to happen without any remedy.

Deputy Mitchell's amendment mentions the preservation of the right of people to assemble peacefully. I sympathise with his concern, but the Constitution also guarantees that right. In so far as we pass any Bill, it is always subject to the constitutional right of people to peacefully assemble. Doubtless people who protest have legitimate grievances, but if one blocks a road in Dublin to make a point, inevitably there is somebody for whom that is an extremely serious matter. A person may be trying to keep an appointment in order to get a job or bring a person to hospital and so on. There is great selfishness involved in insisting on making a protest regardless of the trouble being caused to other people. People engaged in protests do not seem to think about the unfairness of what they are doing to people whose plight they cannot even imagine. I am very hostile to people who block roads. Even on a Saturday afternoon in a suburb a blocked road in order to protest about traffic conditions in the area can cause a calamity for somebody in the traffic jam and that person is not being treated fairly in that sort of protest.

In general terms I sympathise with the Minister's draft of the proposed offence and I do not sympathise with people who think they can make a point by inflicting inconvenience on others. I do not believe, as Deputy Mitchell suggests, that one has to have the right to inflict inconvenience on others to make a point. Sometimes the inconvenience is minimal, but sometimes it is significant and could ruin somebody's life in a way that would never be known or could cause severe annoyance in a way that cannot be imagined. It is right to criminalise the interruption of the free passage of people in public places because we all have a right to use a road uninterrupted or unimpeded, whatever anybody else thinks about his right to protest. The crucial word defining the offence is "wilfully". A march down Grafton Street might slow me up some day, but the people who are marching are not wilfully impeding other people. Where people block roads and refuse to allow other people to pass and wilfully interfere with other people's freedoms, I object. If the offence proposed by the Minister did not include the word "wilfully", I would be very worried about it. An unintended or accidential consequence is merely unfair. I now see that the Minister proposes to delete the word "wilfully".

Mr. G. Mitchell

The Deputy will have to backtrack fast.

Mr. M. McDowell

I will, because I assumed it was not her intention to do so. She now proposes to include the words "who, without lawful authority or reasonable excuse, prevents or interrupts". I would prefer the Minister to leave the word "wilfully" in the Bill, because someone may say "I do not care about you and I am going to stop you". This would be objectionable. I would prefer the Minister to leave the section as it stands and I am sorry that I had to backtrack.

Mr. Costello

I would like to outline the position under the law at present. If a march or protest takes place on O'Connell Street, traffic will be disrupted. Is it the intention to prevent any march or protest taking place in the public area?

Mrs. Geoghegan-Quinn

No.

Mr. Costello

The position is that the Garda will redirect traffic along one side of the street and allow the march to proceed on the opposite side. In other words, marchers are allowed to exercise their constitutional right to assemble and protest and the public to go about their business along the public highway. If protesters do not abide by the law then the Garda may arrest them for causing an obstruction.

The Minister now proposes to include the words "who, without lawful authority or reasonable excuse, prevents or interrupts" but the fact remains that a peaceful protest cannot take place in a public place without some disruption being caused. We cannot implement legislation of this kind. There is no point in passing this section as it stands. By including the word "wilfully" we would at least have to ensure that the action was premeditated and calculated. However, it should be said that it would be a matter for the garda concerned to decide if the intention was to provoke a breach of the peace. We should also bear in mind that residents of communities organise demonstrations and marches to protest against unsocial or undesirable behaviour, such as "rat running", to protect their communities. This may cause traffic disruption, but in doing so they are exercising their constitutional right. What we are now saying is that they will not be able to do this, otherwise they will be subject to the rigours of this new legislation. The Minister has gone too far in this amendment.

I have no doubt that in regard to the 1967 legislation there was a political agenda. It was mentioned at the time that there would be barricades on the streets and that because of that there was a need for legislation to prevent the matter getting out of hand. The last occasion on which the Garda had to intervene in a public gathering, protest march or demonstration to make arrests was the time Ronald Reagan visited the country. By and large, we exercise our constitutional rights in an orderly fashion. If we introduced legislation to deal with a non-existent problem it would be bad legislation.

I advise the Minister to reconsider the matter. My own view is that this section is not necessary and that the matter is covered under existing legislation. If the section is implemented we will interfere with the rights of trade unionists, teachers and farmers. Lawyers have yet to take to the streets, but we will never know when this may happen.

Mrs. Geoghegan-Quinn

Perhaps they will when the Solicitors Bill is introduced.

Mr. Costello

We may even see them with placards which may be considered offensive outside this House or in court. However, many community groups will take to the streets before they will. I therefore ask the Minister to review the matter before the Bill is taken in the Seanad.

Mr. D. Wallace

Deputy Mitchell consistently referred to political marches where people carry placards. Deputy Costello also adopted the same approach. I would remind the Deputies that this Bill deals with the issue of public order and covers far more than political marches. Rarely do we encounter difficulties with these marches even when they take place in Ballsbridge. The Garda never have problems dealing with the people concerned.

Mr. Browne

(Carlow-Kilkenny): Wait until Jacques Delors arrives.

Mr. L. Fitzgerald

To judge from the behaviour of the Deputy's party today they will be shaking hands with him. They will welcome him with open arms.

Mr. D. Wallace

They are not disruptive and we can go about our business without any difficulty.

The point needs to be made that communities are encountering problems. It was mentioned yesterday that groups congregate persistently at certain locations and cause a disturbance. A number of areas come to mind in this regard. We need to ensure that the Garda have the power under legislation to deal with this matter. A man who wants to take his children to school or has to visit hospital at certain times to attend the dialysis unit should not be obstructed. While some protests can get out of hand, the majority of those who take part have nothing to fear. In this respect I have not been convinced by the arguments made by the Opposition and contend that we should support the people who have been affected.

Mr. G. Mitchell

They were also made on the Government side of the House.

Mr. L. Fitzgerald

He is independent; we have not muzzled him.

Mr. G. Mitchell

He is a Government Deputy.

Mr. M. McDowell

He is semidetached.

Mr. D. Wallace

I am glad therefore that the Minister is addressing the matter in this amendment.

Mr. Browne

(Carlow-Kilkenny): When I hear arguments about what is intended, I wonder if legislation is more of a problem than a help. The Minister withdrew the word “wilfully”. The proof of a person's guilt must be strengthened if he wilfully does something. A crowd coming from Croke Park, of its nature, may hold up traffic, but the people in the crowd are not doing it wilfully.

Mr. D. Wallace

In that case the cause is the large number of people. That would not be a good example.

Mr. Browne

(Carlow-Kilkenny): There must be a decision as to whether people are wilfully holding up traffic, disrupting the flow of traffic and preventing people going about their business. I cannot see how a case could be made otherwise. That is why I was amazed to discover that the word “wilfully” and been deleted. Deputy Mitchell has included the words “wilfully” and “unlawfully” both of which would at least justify charging somebody for breaking the law.

Mr. L. Fitzgerald

A very reasonable case was made by Deputy McDowell. I agree with almost everything he said, particularly in regard to the right of free passage of an individual. No matter what the nature of a protest, surely it should never interfere with the right of free passage. Examples were cited by Deputies McDowell and Wallace such as a person going for an interview for a job, parents bringing children to school or people going to a hospital. No matter what the purpose of the passage along a public way, there must be a right of free passage and I think Deputy Browne is accepting that point. However, I agree with their views on the deletion of the word "wilful". It is imperative that that word be included in the Minister's amendment. If a problem arises because of a wilful act, it should be deemed to be an offence. The Minister should include the word "wilful".

Mrs. Geoghegan-Quinn

I undertook on Committee Stage to look at this amendment which is the same amendment Deputy Mitchell tabled on Committee Stage. I know what the Deputy is trying to achieve. He made a very good case, and was supported by other Opposition Members, at the time. I undertook to look at it to see if certain elements of it could be incorporated into the wording of section 9. I said at that time that there were reasons of a technical, legal nature which presented difficulties in regard to subsection (2) of the amendment which refers to the legitimate rights of citizens. I will not repeat what Deputy McDowell said but he very effectively and eloquently put the reasons for the legal difficulties in regard to that.

Apart from the cases cited by Deputies McDowell, Wallace and Fitzgerald, there are other situations where people block streets, roads, driveways and so on. I have probably been the target of such blockages more often than any Member. I suppose, as a politician, one has to have a thick skin and put up with that kind of blockage outside one's dwelling which prevents one from either entering or exiting one's home. I am not sure that our partners in life or, indeed, our families should have to put up with that but we did, as a family, put up with it over six months. When it goes further than that and takes place in a public place where, for example, some of us might have our constituency clinics which may be located in a narrow street of a town or village and the blockage blocks not just the person it is aimed at but prevents business being conducted by people who have to earn their living in shops and business premises in these streets and towns, that is wilful obstruction.

In relation to Dublin, representatives of the City Centre Business Association made a very strong case to me in relation to businesses being stopped. They are not talking about the legitimate protests about tax or any political issue of the day when people march down the middle of O'Connell Street, because they feel it is the legitimate right of somebody to protest. They are talking about the wilful obstruction that takes place and where somebody going about their business or taking children to school or to a hospital is prevented from doing so.

We must ensure that there is a power for the Garda. We are not giving enough credit to the Garda. One would imagine, listening to some Members, that every garda in the country is anxious to use this power to take pickets or people who are protesting off the streets. Gardaí have as much common sense as the rest of us. They have considerable powers already and we have seen them operate and use those powers effectively and efficiently and with enormous common sense. I have no reason to think that that will not continue.

However, I gave you notice that I would like to amend the amendment before the House, and I think that will meet the concerns of a number of Deputies. I wish to insert between the words "excuse" and "prevents" the word which was there, the word "wilfully". I hope that will meet the concerns some Deputies have with my amendment.

Mr. G. Mitchell

I do not know why the Minister did not use that wording in the first place when it was in my original amendment. I presume she wanted her amendment to seem so much different from mine. She was very ungracious in commenting that people on this side of the House are not giving enough credit to the Garda. The Minister is not giving enough credit to the Opposition who have given her a very constructive run on this Bill. If that is the sort of insult she is going to throw across the House, she will find that we will not be so co-operative on committees in future.

I wish to make it clear that in an adversarial system it is my job to find out what is wrong with a Bill and not in the public interest. I make no apology to anybody for doing that. No garda or Minister is going to do that job, just as I will not do the job of a garda. It is my job, as a legislator, to ensure that what goes into a Bill is reasonable, and no Minister should in any way denigrate a Member for doing that in a positive and objective way which is how I moved my amendment. The inclusion of the word "wilful" is what I want and I am happy with that. Why it was not possible to do that generously without throwing insults, I do not understand.

I wish to reply to some of the points made about my amendment. Before he realised that the word "wilfully" had been dropped, Deputy McDowell spoke about people's constitutional rights. These cases will be heard in the District Court. Why should people have to go to the Supreme Court to uphold their constitutional rights? Do we not have a duty to uphold people's constitutional rights? For far too long we have relied on the Supreme Court, hidden behind their gowns——

Mr. M. McDowell

Do not forget their wigs.

Mr. G. Mitchell

We will deal with that on another day. Not one Member of this House, except possibly a barrister, could afford to take a constitutional challenge. What chance does the ordinary public——

Mr. M. McDowell

Eat your heart out.

Mr. G. Mitchell

If I had half a chance I would eat the Deputy's heart out. The fees that these people charge are outrageous. A recent High Court ruling states that barristers will be paid what the market will bear, not what is just, fair or reasonable, which is the basis of the pay of everybody else. The proposed amendment is more or less along the lines of my proposal. The Deputy made a mess of this matter——

Mr. M. McDowell

One cannot be perfect all the time.

Mr. G. Mitchell

No, but to get it right occasionally would do no harm. Deputy Costello made a valid point in regard to the interruptions caused by marches. I am glad the Labour Party is aware of this issue. I would have been very surprised if it did not speak against this provision. Deputy Wallace suggested that we never see people getting into trouble with the Garda, that is the point. If the amendment I proposed had been accepted in the beginning — it is now being accepted — all the points of concern would have been met. The problem of the City Centre Business Association referred to by the Minister is now being met by the Minister's proposed amendment to amendment no. 32, which is exactly along the lines of my amendment, that is "without lawful authority or reasonable cause". For people to give the impression they are not accepting the amendment is rubbish.

I am glad that common sense is prevailing and that the extreme right wing views of Deputy McDowell are not being accepted by the House. I am glad there is agreement between Fine Gael, Fianna Fáil and the Labour Party on this matter. Not only does Deputy McDowell want this section to go through unamended, he wants the Garda to have further rights of arrest. The amendment we have squeezed from the Minister meets the point I put forward and I will be happy to accept that amendment in place of amendment No. 31.

Mr. M. McDowell

On the Minister's proposal——

An Leas-Cheann Comhairle

I am sorry, the Deputy has already contributed on this matter.

Mr. M. McDowell

The Minister proposed an amendment and I am entitled to speak on it.

An Leas-Cheann Comhairle

On Report Stage a Member may contribute only once.

Mr. M. McDowell

How can the Minister propose an amendment after I have spoken, an amendment of which I had no notice?

An Leas-Cheann Comhairle

It is an amendment to amendment No. 32——

Mr. M. McDowell

Of which I had no notice.

An Leas-Cheann Comhairle

——and the ruling is that on Report Stage a Member may contribute only once.

Mr. M. McDowell

Will the Minister give me ten seconds?

Mrs. Geoghegan-Quinn

It is not for me to say.

An Leas-Cheann Comhairle

I am sorry, Deputy, it is not a matter for the Minister.

Mr. M. McDowell

On a point of order, the Minister proposed an amendment to an amendment without any notice whatsoever. Members of the House must be entitled to speak on a matter of which they had no notice.

An Leas-Cheann Comhairle

The Deputy's point of order is noted. It is at the Chair's discretion to accept——

Mr. M. McDowell

I am asking for ten seconds.

An Leas-Cheann Comhairle

I am sorry, Deputy, it is not within my brief to allow you to speak again.

Mr. M. McDowell

If it is at your discretion it is within your brief.

An Leas-Cheann Comhairle

I must follow very clear constraints, that is, Standing Orders. I ask the Deputy to allow the proceedings to continue. I do not have discretion in allowing a Deputy to contribute more than once on Report Stage, that is the end of the issue. Am I to take it that, in the context of the Minister's amendment to amendment No. 32, Deputy Mitchell is withdrawing his amendment?

Mr. G. Mitchell

Yes.

Amendment, by leave, withdrawn.

Mrs. Geoghegan-Quinn

I move amendment No. 32:

In page 5, lines 41 and 42, to delete "who shall in any manner wilfully prevent or interrupt" and subsitute "who, without lawful authority or reasonable excuse, prevents or interrupts".

I move also the following amendment to amendment No. 32.

After the word "excuse", to insert the word "wilfully".

Amendment to amendment No. 32 agreed to.

Amendment No. 32, as amended, agreed to.

An Leas-Cheann Comhairle

We now come to amendment No. 33. Will Deputy McDowell move the amendment?

Mr. M. McDowell

This House is not well served by orders from the Chair which are unreasonable.

An Leas-Cheann Comhairle

That remark is out of order. The Chair was strictly adhering, in a most polite manner, to Standing Orders, and that is all the Chair can do.

Mr. M. McDowell

I suggest that if the Chair considers the matter at length he will agree that any Member of the House is entitled to speak on a matter of which no notice has been given. Otherwise anybody could hop up after Members have expressed their views and change the meaning of an amendment.

An Leas-Cheann Comhairle

I take it the Deputy was going to move amendment No. 33.

Mr. M. McDowell

I move amendment No. 33:

In page 6, line 5, to delete "twelve months" and substitute "three months".

I suggest, as a result of the debate, the Minister will consider in the Seanad inserting a new paragraph in section 8 (1) to include the substance of section 9. In that way a garda would have the right to tell somebody wilfully obstructing a road to desist and the person would be under an obligation to comply with the order. Perhaps the Minister would consider that matter as it would improve the Bill?

The proposal in amendment No. 33 is to reduce the penalty for a common assault in the District Court from 12 to three months. I propose this amendment in the context of already overcrowded prisons. A common assault may consist of a gesture, a slap, a punch or any action which results in actual bodily harm. Assault occasioning actual bodily harm may consist of an action resulting in a bruise, cut, abrasion or something of that kind. A common assault is, by definition, a minor matter. To put somebody, in this day and age, into jail for 12 months for common assault is unthinkable. It is about time we considered the realities of what we allow District Court judges to do. An assault which does not inflict harm does not merit sending a person to jail for six, nine or 12 months. A prison sentence is a very serious penalty which ruins people's lives. As we are dealing here with the District Court, we are dealing with an offence which, by definition, is a minor matter. If a greater penalty is necessary in a case involving common assault, it may be dealt with in the Circuit Court. The penalty proposed should be reduced from 12 to three months.

Debate adjourned.