Dáil Éireann debate -
Thursday, 26 Feb 2004

Vol. 581 No. 1

Other Questions.

EU Directives.

John Gormley

Question:

6 Mr. Gormley asked the Minister for Justice, Equality and Law Reform his views on whether there will be an erosion of the requirement of EU directives that sanctions be effective in view of the fact that a single maximum award can now only be made under the Equal Status Act 2000, if section 55 of the Equality Bill 2004 proceeds as it stands, irrespective of the number of grounds of discrimination which have been proven; and if he will make a statement on the matter. [6375/04]

Mr. McDowell

The changes proposed in the Equality Bill are necessary and wholly compatible with the race directive. Section 55 of the Equality Bill 2004 adds a number of new provisions to section 27 of the Equal Status Act 2000, including a new provision at section 27(3) of the Act to provide that the maximum amount specified applies, notwithstanding that conduct, the subject of the investigation, constituted discrimination on more than one of the discriminatory grounds.

At present, if a complainant takes a single case alleging discrimination on more than one ground, for example, on gender and age, the maximum award in respect of the entire complaint would be €6,350. However, if the complainant was to take two cases, one alleging discrimination on the gender ground and another alleging discrimination on the age ground, in respect of the one incident, it would appear that two awards could be made, each up to the maximum of €6,350.

I regard it as unsatisfactory that the amount of redress should depend on the number of complaint forms lodged. This section, therefore, provides that where the conduct of a service provider amounts to discrimination on more than one ground of discrimination, on one occasion, the complaint in respect of all grounds should be referred to as a single case and the total amount of redress which may be awarded should be the maximum set out in the Act.

However, if a complainant is victimised by the respondent for taking action under the Act, I consider that an aggravating circumstance, and I would regard it as a separate incident of aggravation requiring a separate award. It has long been the practice of the Equality Tribunal to treat multiple grounds cases, other than those involving victimisation, as single cases when awarding redress and section 55 of the Equality Bill reinforces that. The amendment is also required to keep in line with a similar amendment under the Employment Equality Act 1998.

Mr. Cuffe

I accept that there is an exception on the victimisation ground. Nonetheless, it seems like a breach of fundamental justice that Directive 202/73/EC calls on member states to provide for effective, proportionate and dissuasive sanctions, although that does not apply here. For instance, if someone from another member state of the EU is discriminated against as a lone parent with a disability, surely there should be an adding up of the grounds of discrimination in the case. It appears to be a breach of equality measures to state that all the grounds will be bundled together with a maximum award of €6,350. The Minister should reconsider section 27 of the Equal Status Act 2000 with a view to providing for a judge to be able to total up the grounds on which discrimination has taken place, and adjust the award accordingly.

Mr. McDowell

That depends on one's philosophical outlook. If the purpose of this legislation is to prevent discrimination, then a single act of discrimination — for instance, the refusal of somebody to provide a service to an aged member of the Traveller community — is, nonetheless, a refusal to provide the service. The fact that he or she cited or relied on age and membership of the Traveller community, rather than if the discrimination arose from one count alone, should surely not be taken as a basis for doubling the amount of the award. If we applied that principle to court cases it would mean that where an offence could be committed in any one of five circumstances, if two such elements existed the penalties would be doubled. That would not necessarily have a dissuasive effect but it would have an artificial effect whereby people would look at the same incident from three different perspectives and claim they were discriminated against on grounds of nationality, membership of the Traveller community and age.

In certain cases, one could add a fourth ground of sexual orientation and, thus, quadruple the amount of damages arising from the fact that one was refused entry to a hotel. That is not a very defensible distinction to make. We want to prevent discrimination and have provided for dissuasive penalties against it. It really does not matter if the discrimination occurs on the basis of a simple, single ground or on multiple grounds because the person on the receiving end of it is not being granted access to the service. When it comes to assessing compensation, it does not matter if, in the mind of the perpetrator, there were two separate unlawful reasons for doing it.

Criminal Gangs.

Joe Costello

Question:

7 Mr. Costello asked the Minister for Justice, Equality and Law Reform the measures he intends to bring forward to deal with the activities of criminal gangs in regard to his address to the Oireachtas committee on justice on 9 December 2003; when he expects that the legislation will be published; and if he will make a statement on the matter. [6224/04]

Mr. McDowell

When I appeared before the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights on 9 December 2003, I addressed in some detail, with reference to the activities of criminal gangs, the measures I intended to bring forward to enhance the investigation and prosecution of criminal offences. My address in this respect is available on the website of the Houses of the Oireachtas but I will be happy to make a copy available to the Deputy.

I intend to provide for those measures that require legislative provision in the criminal justice Bill, which I expect to publish during the current session. The measures, the heads of which I have already outlined to the joint Oireachtas committee, will include: a statutory power to preserve a crime scene; a general power in relation to the issue of search warrants; increased detention powers of up to 24 hours for arrestable offences; some amendments to the Criminal Justice (Forensic Evidence) Act 1990, in particular to reclassify saliva as a non-intimate sample; extending the power of the prosecution to appeal in limited circumstances, in particular concerning points of law; and general provisions, mostly of a technical nature, to improve efficiency in the prosecution of offences.

I informed the joint committee that I am considering a number of further proposals for inclusion in the Bill. These include a provision making it an offence to possess an article in circumstances where a reasonable suspicion may be drawn that the possession is for the purpose of committing a serious offence, and a provision on the admissibility of statements made by witnesses who subsequently refuse to testify or retract their original statements.

I also informed the joint committee that while I see serious practical evidential difficulties in creating an offence of membership of a criminal gang, I am examining the issue in conjunction with the European Union's instrument entitled Joint Action on Participation in a Criminal Organisation, adopted in December 1998, and the 2000 UN Convention on Transnational Organised Crime, in the context of giving effect to these instruments in Irish law. Each of these instruments contains provisions on contributing to or participating in the activities of a criminal organisation. I am also examining relevant legislative provisions in other jurisdictions aimed at the activities of criminal gangs. I will bring to Government any proposals I may have in this matter with a view to including them in the forthcoming criminal justice Bill.

It will not be a simple task, however, because I note that in Canada the provisions which were held up to me as models which I should follow, are the subject of considerable controversy as to whether they are effective at all. As Deputies have said, simply introducing sections in Bills to deal with the problem is not the real issue. Consequently, I want to make the law effective in order to counter the problem. I am enthusiastic to get on with that process.

The issues surrounding the establishment of a DNA databank are currently under consideration by the Law Reform Commission, following the referral of the matter to the commission by the Attorney General as a matter of urgent public interest. As soon as I receive the Law Reform Commission's report I will act upon it, if I am in agreement with its findings. I may be in a position to include a related matter in the Bill.

I understand that the joint Oireachtas committee is expected to publish its report on the administration of justice in the near future. I look forward to examining that report and will be prepared to take whatever action may be appropriate on foot of it, including bringing forward further proposals for legislative reform, if the report so recommends.

Mr. Costello

The thrust of my question concerns not so much the general measures the Minister is proposing to introduce in the criminal justice Bill, but the specific measures relating to criminal gangs. The Minister has indicated that he will introduce a new offence to deal with criminal organisations. I want to know whether or not that proposal is a runner because we have not heard about it since. It has not been included in the criminal justice Bill and I want to know if the Minister is serious about it. He has indicated that there are some problems concerning the Canadian model and, therefore, he may not be able to follow it.

Two more gangland killings have occurred in the past 24 hours. There were 21 last year but only a small number of prosecutions were brought and no conviction was secured. Gangland activity centred on drugs, firearms and assassinations is increasing. This must be addressed through effective legislation. The Minister promised the committee he would introduce an offence related to organised crime. There are certain no-go areas in Dublin and Limerick cities. Has progress been made on the recruitment of the 2,000 gardaí promised in the Government's manifesto?

Mr. McDowell

I will reply to a question later on the Garda recruitment issue. I will update the House on my plans in this regard.

Mr. Costello

Will we get to the question?

Mr. McDowell

I refer to gangs and organised crime. My Department is working hard on this subject and all the issues are being examined. It is easier to state in an international instrument that an activity should be criminalised but it is difficult to introduce a workable law that has an evidential underpinning, which will lead to convictions, and the Department is focusing its attention on that in a positive way. It is my intention to introduce an offence of this kind under the criminal justice Bill. The amendments to which I referred earlier are the subject of a memorandum that I have prepared for Government, which will be considered in the near future. The criminal organisation provisions will be the subject of a further memorandum to Government also in the near future.

There is not a lack of enthusiasm on my part. It is easy to provide that it shall be an offence to be a member of a criminal organisation and define it but there are questions relating to how that can be proved, how gardaí will arrest people for such an offence, what evidence will constitute proof beyond reasonable doubt and what presumptions and inferences and the like must be provided. That is the crucial and slightly more difficult aspect of this issue.

I endorse Deputy Costello's comments completely. Gangs are not always the same as criminal organisations because, for international purposes, criminal organisations must be structured. However, at least 17 ruthless gangs are operating in the Dublin area. They are centred on the drug trade. Dealing in death inures their consciences so fundamentally that they then move to debt collection, patch protection and score settling by killing. We have seen in the past 24 hours how cruel, vicious and wrong is such activity.

I have always said nobody is above the law. The great and the good are not above the law, and the same applies even if people are engaged in some form of criminality. Their lives are protected by our Constitution and nobody, therefore, is below the law. There is not a class of outlaws to which the State is indifferent or in respect of whose deaths or serious injuries it turns a blind eye. I assure the House the Garda investigates all these cases as strongly as it can because it is aware of the implications of not doing so. The Garda investigated the great majority of what can be loosely termed "gangland offences" committed in 2003 and identified the persons against whom it sought to accumulate evidence.

Mr. Costello

Only four were charged.

Mr. McDowell

The Garda was completely stymied in a tiny number of cases, with no clues as to how to bring the investigation forward. It is one thing to know who has done something, it is a different thing to provide evidence that proves he or she did it. As a result, the Garda has a constant battle on its hands in regard to those who engage in the drug trade and the use of guns.

Mr. Costello

I presume the documents found across the Border had nothing to do with criminal gangs.

Mr. McDowell

I do not know what the score is in that regard. An investigation is ongoing and I have no idea what is the explanation for that.

Liquor Licensing Laws.

Róisín Shortall

Question:

8 Ms Shortall asked the Minister for Justice, Equality and Law Reform when he intends to use the powers available to him under the Intoxicating Liquor Act 2003 to introduce regulations providing for traceability of alcohol sold in off-licences; if the EU has been notified of the proposed regulations; if a response has been received from the EU or other member states; and if he will make a statement on the matter. [6257/04]

Mr. McDowell

The powers are contained in section 22 of the Intoxicating Liquor Act 2003. They provide for the making of regulations to specify particulars to be affixed to a container in which intoxicating liquor is sold for consumption off the premises, which would enable the licensee and the licensed premises concerned to be identified.

I am consulting interested parties prior to making regulations with a view to ensuring implementation of this measure is effective. Discussion of issues arising in this context is ongoing between officials in the Department of Justice, Equality and Law Reform and representatives of trade organisations and other interested parties, including the Garda. I intend to notify the European Commission of proposed regulations in accordance with the so-called technical standards or transparency directives to avoid a later challenge to regulations made under section 22.

These directives have been put in place at EU level to give the European Commission and member states an opportunity to examine, in advance, proposed national standards and rules in the interests of transparency and the smooth functioning of the internal market. The notification will take place when consultations with interested parties have concluded and details of draft regulations have been progressed.

This is not an easy question. It would be a great idea if every tin of cider, beer or whatever or every bottle of wine could be labelled in every off-licence, supermarket and so on so that its source could be identified. Nothing sounds easier. However, if a tray of beer needs to be disassembled so that bottles can be marked or bubble packs must be cut apart to mark each bottle with something that is identifiable with every off-licence, that presents significant difficulties for large supermarkets, in particular. Although one might think the common-sense approach to this would make for a simple solution, it is not that simple.

It would be twice as difficult to introduce a system that would require the incorporation of marking into the product because it would have to be considered whether a foreign manufacturer would have to incorporate such marking at the point of manufacture or whether it could be applied at a later stage in the retail distribution network. It is easy to discuss this issue but it is difficult to do something about it.

Mr. Costello

The question is about traceability provisions for off-licence sales which are provided for under the intoxicating liquor legislation and have not been introduced. The Minister has trotted out the same response as previously and I do not know whether he has conducted research into the issue other than to acknowledge there is a problem, which he does not know how to resolve. If so, he should consult technical experts. Every item purchased in a supermarket has a bar code and the price is identified as it is scanned. Modern technology can overcome the difficulties of disassembling trays of liquor and so on. The Minister should consult the technical experts. The Minister for the Environment, Heritage and Local Government did not deal with electronic voting successfully but an effort is being made to consult.

The Minister has made no effort. He said he will contact the European Commission and various interest groups, which comprise vintners and sales people, but they are not interested because it will involve expense. Has the Minister checked this provision since the legislation was passed? The provision was included in prior legislation and nothing was done then either. Will he not bring in technical expertise? He has already spent €30 million on various consultants since coming to office. He could check this out and try to have it implemented. It is the only way to determine the origin of liquor that has been consumed in the public arena, perhaps by minors, so that the Garda can achieve convictions. Unless we do this there is no sense in enacting legislation.

Mr. McDowell

First, I have not spent anything like €30 million on consultants.

Mr. Costello

Did the Minister give incorrect figures in an answer to a parliamentary question?

Mr. McDowell

I answered a question today from a member of Deputy Costello's party saying that the answer given to a written question was, unfortunately, misleading and wrong——

Mr. Costello

That is what we say all the time.

Mr. McDowell

——and that 90% of the sums in question had nothing to do with consultancy. Unfortunately, this miscategorisation took place and the Deputy has been making hay from it ever since. The fact is that 90% of that expenditure had nothing to do with consultancy.

Officials of my Department are engaging in a process of consultation with the licensed trade, both on and off. However, saying that bar coding is the answer to the problem does not answer the question of when the bar code is to be put onto the product. The answer to that question is by no means clear to me. If it is to be put on at the point of manufacture we have a serious European internal market issue. If it is to be put on by individual distributors in Ireland in their premises, other problems arise. If there were to be a bar coded label on every bottle of beer sold in an off-licence one would have to rip apart the six-packs and put labels referable to the particular trader on each bottle. This solution is not as easy as is being made out.

The Department of Justice, Equality and Law Reform has no aversion to making regulations when they are reasonably capable of being made. However, there is no point, as I am constantly reminded in this House, in making a futile regulation which could have no outcome.

Even if one could prove conclusively that a bottle of beer came from a particular outlet, the owner of that outlet would not be exposed to prosecution merely because the bottle or can of beer ended up in the hands of a 14 year old. One cannot have a law of that kind. One cannot punish people for having sold a product which later ended up in the hands of a child. One could — and I agree that the measure could have this beneficial effect — work out where the children in an area were generally obtaining their product——

Mr. Costello

And get a pattern of sales.

Mr. McDowell

——and investigate the issue. One could not simply say that, because a 14 year old had a tin which came from a certain off-licence, the owner should be prosecuted. That would not be a workable law and it will never be the law in Ireland, as far as I can see.

Prisons Building Programme.

Eamon Gilmore

Question:

9 Mr. Gilmore asked the Minister for Justice, Equality and Law Reform his plans for the construction of a new prison in a greenfield site close to Dublin to replace Mountjoy; if a location chosen for the new prison will be accessible, especially in terms of public transport, for families of prisoners; the plans he has for the Mountjoy complex; and if he will make a statement on the matter. [6217/04]

Mr. McDowell

An advertisement was placed in the national newspapers seeking a suitable replacement site for the Mountjoy complex within 25 km of Dublin city centre, convenient to and accessible from the main public transport and road networks and also available for immediate development, subject to the relevant planning requirements.

The closing date for expressions of interest was Monday of this week. I have received 23 proposals, the examination and rating of which is now underway. I expect to make a determination on the proposals by the end of next month.

As I have already indicated, it is my intention to close the Mountjoy complex as soon as a suitable replacement prison has been built and to use the capital generated by the sale of the complex for the acquisition of a site and towards the building of the new prison.

I note that Deputy Deasy has said that some aspects of the campus might be preserved. Some preliminary work has been done on the valuation of the site and I have seen proposals for the maintenance of some of the more significant architectural features. However, we do not need a second Kilmainham or a second prison museum in Mountjoy.

Mr. Costello

Is the Minister considering demolishing Mountjoy prison and is it his intention to leave the women's prison, which is a very new facility, intact?

Mr. McDowell

The answer to the Deputy's second question is, no. I will have to close the women's prison and rebuild because it is inadequate at the moment. With regard to demolition, I will sell the site and it will be up to a purchaser to make a decision as to what will be done with it.

Mr. Deasy

The Minister for Arts, Sport and Tourism has been in Mountjoy prison but I am sure there are members of the Cabinet who have not. Before a decision is made on this matter the Cabinet should visit the prison. Mountjoy prison has been part of the State's history since 1850 and is a national monument. The Cabinet needs to go to Mountjoy and to make a collective decision after its visit. If someone suggested knocking down a piece of Kilmainham Jail in the interest of financial expediency, people would be very angry. This decision needs to be carefully thought out.

Written Answers follow Adjournment Debate.