Dáil Éireann debate -
Wednesday, 28 Jun 2006

Vol. 622 No. 4

Criminal Law (Home Defence) Bill 2006: Second Stage (Resumed).

The following motion was moved by Deputy Jim O'Keeffe on Tuesday, 27 June 2006:

That the Bill be now read a Second Time.

Debate resumed on amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann declines to give a second reading to the Bill in order that consideration be given to the issues raised in this Bill and another Private Members Bill recently introduced in the Seanad on the same issue, and to allow time for examination, reflection and debate of the matters therein with a view to drawing up proposals on the issues, if such be considered necessary, for inclusion in the proposed Criminal Justice (Miscellaneous Provisions) Bill."

—(Minister for Justice, Equality and Law Reform).

Minister of State at the Department of Finance (Mr. Parlon)

I intend to share time with Deputies O'Connor and Grealish.

There is considerable public concern as to whether current legislation is correctly balanced between the home owner and a person who trespasses into his or her home. This issue has generated considerable debate both in this jurisdiction and elsewhere. I understand that the public concern surrounding this issue provides the background to Deputy Jim O'Keeffe's Bill and the interventions of Deputies.

The Constitution imposes a duty on the State to protect by its laws, as best it may, its citizens from unjust attack and, in the case of injustice done, to vindicate the person of every citizen. The bedrock of our law in regard to assault and the issue of self defence in respect of a person who fears he or she may be the victim of an assault is the Non-Fatal Offences against the Person Act 1997. Sections 18 and 20 of the 1997 Act make statutory provision in regard to the justifiable use of force to protect a person or property or to prevent a crime.

Section 18 sets out the various purposes for which justifiable force may be lawfully used which does not constitute an offence. These purposes include the protection of the person or his or her family or another person from injury, assault or detention caused by a criminal act, protection of his or her property or property belonging to another from appropriation, destruction or damage caused by a criminal act or from trespass or infringement and prevention of crime or a breach of the peace. The force used must be reasonable by reference to the circumstances believed by the person to exist.

Section 20 defines the meaning of "use of force" for the purposes of section 18, and subsection (4) provides that the fact that a person had an opportunity to retreat before using force shall be taken into account in conjunction with other relevant evidence, in determining whether the use of force was reasonable.

Section 1(2) provides that for the purposes of section 18, it is immaterial whether a belief is justified or not, if it is honestly held. The presence or absence of reasonable grounds for the belief is a matter to which the court or jury is to have regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief.

The current law clearly states that use of force is justifiable in certain circumstances and also clearly states what constitutes reasonable "use of force". It also provides that a belief in the need to protect does not have to be justified if honestly held and leaves this as a matter for the courts to decide. Current legislation provides protection for the home owner who find himself or herself in the onerous position of discovering an intruder in his or her home. This legislation has served us well. It provides an appropriate balance between the need to be able to protect ourselves, our families and our property from potential danger and the need for us to be accountable for the actions we take in such a situation if we go too far.

The purpose of Deputy Jim O'Keeffe's Bill is to provide protection for home occupiers who confront intruders and-or trespassers in their homes. It proposes to create a rebuttable presumption that any force used by an occupier in such circumstances to protect his home or family is reasonable and comprises protection from civil liability for the actions of a home occupier in all circumstances.

The Bill would get rid of any obligation on occupiers to retreat from confronting intruders in their homes. Where an occupier uses force against an intruder the Bill would allow a jury to consider certain extraneous factors when coming to a decision on the reasonableness or otherwise of the occupier's actions. These factors include such matters as whether the occupier had family members in the dwelling, whether there was sufficient time to decide on a course of action and whether the options for defence against a trespasser were limited.

Section 3 creates the rebuttable presumption that the force used was reasonable, where the occupier uses force against a trespasser who has unlawfully gained entry to and remains within his or her home. Under section 4, no civil liability on the part of the occupier shall arise in respect of any harm, whether serious or not, caused by the actions referred to in section 3. While section 3 allows for the trespasser to rebut the presumption in favour of the actions of the occupier, section 4 appears to have the effect of nullifying the trespasser's right of rebuttal. Moreover, section 7 requires the court, in determining whether the occupier's actions were reasonable, to take into account the factors described in the section, but the section fails to make any reference to section 4.

Our primary legislation in the area of occupiers' liability is the Occupiers' Liability Act 1995. That Act reduces the extent of the occupier's obligations to trespassers. It provides that an occupier owes a duty not to injure a trespasser intentionally and not to act with reckless disregard. The Act also provides that where a person enters on to premises for the purpose of committing an offence or, while there, commits an offence, the occupier is not liable for a breach of the duty imposed generally on trespassers unless a court decides otherwise in the interests of justice. In addition, section 8(a) gives the occupier an entitlement to use proportionate force for his or her self defence, the defence of others or the defence of property.

The occupier is not required to discharge the standard of reasonable care which visitors can insist on under the 1995 Act. When considering whether an occupier has acted with reckless disregard for a trespasser on his or her property, a court must have regard to all the circumstances of the case. These include the behaviour of the person and the nature of any warning given by the occupier. It is also worth remembering that section 57(1) of the Civil Liability Act 1961 provides that it shall not be a defence in an action of tort to show that the plaintiff is in breach of the civil or criminal law.

Deputy Jim O'Keeffe's Bill assumes reasonableness in potentially dangerous situations on the part of the occupier and places the burden of disproving that presumption on the trespasser. In attempting this, there are drafting difficulties with the Bill and there are questions to be answered about the extent to which section 4 gives occupiers exemption from all civil liability. These matters will require careful consideration.

Mr. J. O’Keeffe

That consideration may be given on Committee Stage.

Mr. Parlon

Section 18(1) of the Non-Fatal Offences against the Person Act 1997 clearly states the purposes for which force can be lawfully used. Deputy Jim O'Keeffe's Bill fails to do this. Rather, it would significantly widen the circumstances in which force could be lawfully used. Moreover, it would also significantly reduce the ability of a court or jury to decide upon the reasonableness of the actions of the accused.

Section 5 confines the provisions of the Criminal Law (Home Defence) Bill 2006 to non-fatal offences. Section 6 seeks to amend the Non-Fatal Offences against the Person Act 1997 by adding new definitions and providing that no occupier has a duty to retreat before using force within his or her home. Section 20(4) of the Non-Fatal Offences against the Person Act 1997 provides that the fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable. This is again a matter to which a court or jury is to have regard and any proposal to change this provision must be cautiously examined.

My colleague, Senator Morrissey, published the Defence of Life and Property Bill 2006 in the Seanad on 8 June. This legislation broadly deals with one of the same issues dealt with in the Deputy's Bill. The objective of Senator Morrissey's Bill is to amend the civil and criminal law to allow for the use of justifiable force by home owners against those who trespass with the appearance of intending to commit a serious criminal offence, without obliging the person using such force to show that he or she did not avail of an opportunity to retreat. In other words, the householder would be allowed to stand his or her ground and use justifiable force.

Section 2 of Senator Morrissey's Bill provides for a defence in criminal proceedings where the use of force by an occupier took place in or in the area of a dwelling, in circumstances where a trespass was done for the purpose of committing a serious criminal offence and the action of the occupier entailed the justifiable use of force. The provisions of the Defence of Life and Property Bill 2006 would apply to murder, attempted murder, manslaughter and an offence under the Non-Fatal Offences against the Person Act 1997. Section 2(2) of the Defence of Life and Property Bill 2006 contains similar provisions to those in section 6 of the Criminal Law (Home Defence) Bill 2006.

The kernel of the issue of self-defence under the provisions of the 1997 Act is whether the force used was reasonable. There is no exact answer to this question. Under the present law, it is a matter for the court or jury to decide. This is as it should be. The 1997 Act ensures juries are given the option of rejecting a plea of legitimate defence where they are satisfied that there is an absence of reasonable grounds for the belief that the use of force was justified or it was unreasonable not to retreat. Any amendments to the law is this area require thoughtful consideration.

We must proceed with caution. Both Deputy Jim O'Keeffe's Bill and the Bill introduced by Senator Morrissey require considerable analysis and consideration before any fundamental change in the law in this area. The fraught situation in which an occupier confronts an intruder in the family home is a situation in which unexpected and serious actions might easily ensue. The level of reasonable force used to remove or disable the trespasser is naturally difficult to assess in such a situation. We must consider whether current legislation is sufficient to protect the occupier who applies force in such situations or whether a change along the lines suggested by Deputy Jim O'Keeffe and Senator Morrissey is required.

The Non-Fatal Offences against the Person Act 1997 was drafted as a result of the recommendations of the Law Reform Commission and has generally worked well. There is a need for examination and reflection before any new legislative proposals are brought forward in this area. My colleague, the Minister for Justice, Equality and Law Reform, expressed the view in yesterday's debate that consideration could be given to this issue being addressed in the context of the Criminal Justice (Miscellaneous Provisions) Bill, which will come before the House later this year. However, careful consideration must be given to all aspects of the matter before this is decided.

Mr. O’Connor

I welcome the opportunity to contribute to the debate on this Bill. Before any other Member comments, I assure the House I am pleased to be part of the Progressive Democrats sandwich, positioned as I am between the Minister of State, Deputy Parlon, and my good friend, Deputy Grealish. I ask Deputy Jim O'Keeffe not to rise to that bait.

Mr. J. O’Keeffe

Deputy O'Connor should be careful that he is not bitten or eaten up.

Mr. O’Connor

I could take this opportunity to ambush the Minister of State but I will not do so. I will ask him about Garda stations in Tallaght on another occasion, if he will grant me the time.

I will preface my remarks by complimenting my friend and colleague, Deputy Jim O'Keeffe, on his work in this area. I am pleased to work with the Deputy on the busy Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. I always value his contributions at the meetings of that committee. I am aware he is having a tough time and I wish him well in the difficult 300 days that lie before him.

Mr. J. O’Keeffe

Deputy O'Connor is plamásing me. Why does he not simply support the Bill?

Mr. O’Connor

The Minister for Justice, Equality and Law Reform, Deputy McDowell, has acknowledged that Deputy O'Keeffe is making an important contribution in bringing forward this legislation.

I acknowledge the presence in the Chamber of my colleague, Senator Morrissey, a fellow erstwhile member of the former Dublin County Council. The Minister of State, Deputy Parlon, has made reference to Senator Morrissey's efforts in achieving publication in the Seanad of his Defence of Life and Property Bill 2006, which I understand broadly deals with some of the same issues as those covered in Deputy O'Keeffe's Bill.

Other Members spoke during yesterday's debate of their personal experiences in this area. Not only have I had such an experience but I have spoken to many people in my own community in south-west Dublin who have endured the same trauma. One night 12 years ago, I and my then 11 year old son were at home when I heard the front door banging. I went downstairs to investigate and discovered that intruders had already left with the television and a cassette tape of The Corrs. In recalling this incident afterward, I always wondered what I might have done if I had confronted those intruders. Members are aware I am a quiet individual who would not harm a fly.

Mr. J. O’Keeffe

That is not what the Minister of State, Deputy Conor Lenihan, would say.

Mr. O’Connor

I ask Deputy O'Keeffe not to bait me as this debate is going well. I hope what he said will be correctly recorded in the Official Report.

Many people are forced to deal with intruders in their home. I have made the point in several of my contributions in this House about the importance of appreciating the victim's perspective. I am supportive of the work of Victim Support, not only in my own constituency but nationally. It does a valuable job in arguing that the welfare of the victim is paramount. As several speakers on both sides of the House have observed, this legislation raises issues in respect of which we all have great sympathy for those affected. The Minister alluded last night to the several high-profile cases where people who have tried to tackle intruders have found that their actions fuelled a particular debate as to whether the law as it stands strikes the correct balance between the rights of the occupier and those of the trespasser.

There is a genuinely held belief on the part of most people in this House that the law sometimes does not provide sufficient protection to a person confronted by an intruder in his or her home. The Minister yesterday acknowledged the public concern in this regard. He made the point that Deputy O'Keeffe's motivation was laudable in the sense of appreciating that public concern. Within the criminal justice system it is important to strive to achieve a balance between the competing rights of all those involved. While we all wish to protect ourselves, families and property from potential danger, people must be accountable for the actions they take if they go further than is reasonable in the circumstances.

The legislation, as the Minister has pointed out on numerous occasions, clearly states that use of force is justifiable in certain circumstances as long as its use is reasonable. It also provides that the belief of the need to protect does not have to be justified if honestly held and leaves this as a matter for the courts to decide.

We must be careful not to send out a general message from this House that we condone situations where people take the law into their own hands or that people who trespass or commit crimes will not be subject to the law. While I do not want to offend the sensitivities of any political party, there have been occasions in recent years where people were knocking on doors, offering justice and offering to deal with people. That certainly happened in my community.

It is very important that we, as legislators, take every opportunity to support strongly the work of the Garda Síochána in this regard. I heard a debate on the radio this morning on this issue and some of the remarks were unfortunate. We must have confidence in members of the Garda Síochána and believe they will protect people. We must leave it to them to do their job. If we allow a situation to develop where justice is meted out on doorsteps, stairwells or in fields, where will it end? It is important to state that very clearly.

All Members of the House will have a lot of sympathy with aspects of the Bill before us. That is why I complimented Deputy Jim O'Keeffe earlier. He is touching a public nerve with this legislation. It is important, following this debate, that we go forward——

Mr. J. O’Keeffe

To a Committee Stage debate.

Mr. O’Connor

——and tighten up legislation to ensure we create a situation where what many Members want to achieve is done in a proper way and we do not give people carte blanche to kick the hell out of people who enter a property.

I have been the victim of crime and understand that emotions can be very frayed in that context. However, we must understand the need to be law-abiding and let the Garda do its job. I hope the Minister of State will convey that message to the Minister for Justice, Equality and Law Reform because it is very important. I listened carefully to the Minister and he makes a fair point when he argues that we must understand the concerns of the public and try to find a mechanism for dealing with them while not creating a situation where people can run amok and do all sorts of things in the name of justice. At the end of the day, that is why we have the Garda Síochána to protect us.

I am looking forward to the remainder of the debate. I appreciate the time I have been given to support the Government position on this issue. The debate will continue and Deputy Jim O'Keeffe's ideas——

Mr. J. O’Keeffe

It will continue if the Government does not pass this Bill.

Mr. O’Connor

Deputy Jim O'Keeffe is on the right track with his ideas and the Minister said as much. The Minister will work with the Deputy and has demonstrated that he wishes to do so. I hope Deputy Jim O'Keeffe will also continue to work with the Minister for the next 300 days.

Mr. J. O’Keeffe

I will work to get rid of him.

Mr. Grealish

I thank my party colleague, Deputy Parlon, and my good friend from Tallaght, Deputy O'Connor, for sharing their time with me. I appreciate the opportunity to contribute to this important debate and commend the Minister for Justice, Equality and Law Reform on his extensive contribution on the issue.

The public and media debate and the Bills proposed on defending property have come on foot of various cases, some of them high profile, where intruders and people who have tried to tackle them have been injured or, in some regrettable cases, killed. One such case, known as the Nally case, which happened in the west in 2004, was especially difficult and well publicised. The public discourse which followed it was characterised by strong feeling on both sides.

How far can one go to protect one's life and property? When is the action a person takes to defend his or her life and that of family members a step too far? What is reasonable? These are tough questions which do not have easy answers. I commend my party colleague, Senator Morrissey, on displaying the courage and initiative to try to deal with such questions in a reasonable way.

The word "reasonable" arises continually in the debate about using force to defend oneself. While Senator Morrissey produced a reasonable Bill, Fine Gael produced a truly poor effort at tackling the issue. So bad is it that it does not bode well for any sort of alternative Government should this be the standard of law making we are to be left with. Whatever about defence from intruders, the country certainly needs some way of defending itself from the ineptitude of the would-be legislators opposite.

Mr. O’Connor

Deputy Jim O'Keeffe would not accept my kindness.

Mr. J. O’Keeffe

Who wrote the speech for Deputy Grealish? It is terrible rubbish.

Mr. Grealish

A quick glance at the legislative response proposed by Senator Morrissey and the Fine Gael effort might lead one to think they are so similar as to make no difference, but one would be wrong. Closer examination of Deputy Jim O'Keeffe's effort, which was forensically cut to pieces by the Minister——

Mr. J. O’Keeffe

It was totally misrepresented by the Minister.

Mr. Grealish

A closer look shows that reasonableness is a trademark of Senator Morrissey's Bill but is shockingly absent from Fine Gael's sorry attempt. As the Minister said last night, the latter suffers from the ill effects of hasty drafting in contrast to Senator Morrissey's considered drafting.

Senator Morrissey's Bill would amend the civil and criminal law to allow the use of justifiable force by occupiers of a domestic dwelling against trespassers who have criminal intent. Compare that with Fine Gael's Bill. If a person is having a party in his or her home and requests a person to leave but the person refuses, the latter is then a trespasser. Under Fine Gael's Bill, he or she will have extreme force used against him or her without redress.

Mr. J. O’Keeffe

That is utter rubbish.

Mr. Grealish

Gate-crashing a party certainly creates a nuisance, but it is not a crime. If Fine Gael has its way, a gate-crasher can technically be considered a trespasser on premises and anyone using force against him or her will be immune from prosecution. Senator Morrissey's Bill suggests that the use of force and immunity should only apply where people have entered premises for the purposes of committing a crime. I do not like asking questions to which the answer is obvious but which of these is the reasonable, appropriate and intelligent approach?

The flaws in Fine Gael's drafting do not end there, however. As I have said already, the public and media debate about defending property came on foot of cases where intruders and people who have tried to tackle them have been injured or killed. People express very strong views with regard to others coming onto their property intending to do harm, whether stealing or injuring them and their families, and who could blame them? What does property refer to and what does the term mean? Any commonsensical approach would determine that when it comes to defending one's property, this would include one's car and the contents of one's garage or shed. Most people would interpret property as meaning more than just the space within one's four walls. That is common sense. Fine Gael has shown itself bereft of common sense by proposing the Bill as it did.

Under Senator Morrissey's Bill, a householder would have the same rights in his or her garden if someone was threatening his or her house. The householder would also have the same rights when trying to prevent his or her car from being vandalised. Fine Gael wants to cover the physical house only and would have one sit in one's sitting room looking out at a criminal action.

If Fine Gael, by some cruel twist of fate, were to find itself in a policy-making position, could we rely on it? After all, none other than its leader, Deputy Kenny, has described as utterly ludicrous the very measures adopted by the Cabinet at which he sat, that is, the obligation to retreat within one's house——

Mr. J. O’Keeffe

That is not true. He was referring to an entirely different situation.

Mr. Grealish

As the Minister pointed out, removing the issue of retreat in the context of someone who commits an act of criminal trespass with the intent to commit a serious offence, as Senator Morrissey's Bill proposes, is one way of dealing with the matter. Fine Gael's Bill would simply create another problem with which we would have to deal. It is not reasonable for Fine Gael to create a situation where a trespasser, who may be a child, could be the victim of extreme violence without the right of redress against a group of people who happen to be present and gain consent from the house owner.

One cannot even give Fine Gael credit for political manoeuvring on this issue. The Minister for Justice, Equality and Law Reform said that rather than disregard Senator Morrissey's Bill, Fine Gael would have been wiser to adopt it, thereby creating some political embarrassment for the Minister——

Mr. J. O’Keeffe

The Minister is embarrassed enough as it is.

Mr. Grealish

Fine Gael could have taken the Senator's reasonable text and presented it to the Minister, instead of developing an unreasonable text. It could not even get that right.

Mr. J. O’Keeffe

He wants to kick it to touch.

Mr. Grealish

Fine Gael's sorry performance has been exposed enough. In light of the legislative issues that the Minister for Justice, Equality and Law Reform detailed last night, he has suggested a six-month period to allow the topic to be thought through more thoroughly. He has also assured the House that it is not an evasive action. The broad issues raised and addressed by Senator Morrissey certainly merit such consideration, which holds the key.

The sections of the 1997 Act that deal with this area were drafted on the basis of recommendations from the Law Reform Commission. This House must exercise great caution when it comes to amending that law. Senator Morrissey has demonstrated that reasonable and considered amendment is possible. Fine Gael wanted us to make new law in this area last night that would do a disservice to this House and, most importantly, to those whom it represents. Rushing through the flawed Fine Gael proposal would have been entirely wrong, and I echo the Minister's call for those who have brought forward Private Members' Bills to think through carefully the full implications of their suggestions.

The Government has committed itself to considering all the issues. The approach suggested by Senator Morrissey is right. I therefore oppose Fine Gael's Bill and support the Minister's proposal as outlined yesterday evening.

Mr. O’Connor

Deputy Jim O'Keeffe is on his own.

Mr. J. O’Keeffe

The Deputy should tell that to the people on the doorsteps.

Mr. O’Connor

He is on his own.

Mr. Healy

I wish to share time with Deputies Breen, Gregory, Finian McGrath and McHugh.

Acting Chairman (Dr. Cowley)

Is that agreed? Agreed.

Mr. O’Connor

Is Deputy Healy on Deputy Jim O'Keeffe's side?

Mr. Healy

I may have been mistaken. The Green Party and Sinn Féin may also wish to share time.

Acting Chairman

They are not present.

Mr. Healy

I welcome the opportunity to say a few words on this Bill. I will now probably have to say a few more than I had expected.

The Bill before us arises from circumstances of which we are all aware, high profile cases of recent years and one in particular that happened last year. We can all understand the background to the Bill, but I am not at all sure that it is the right response. I agree with a number of speakers on both sides of the House who have expressed concerns. I wish to address the issue from a different perspective, that of prevention rather than cure.

I would like to see more recreational facilities and resources made available to young people in particular. That is the best way to tackle crime, not only this one but any crime. We should start on the ground and make resources available to those working in local communities to ensure that youths, who are prone to involvement in anti-social behaviour and ultimately crime, have an opportunity to gain employment and participate in society. I ask the Minister to examine the lack of resources for youth work in Clonmel and a recent report by the RAPID programme in that regard.

Mr. J. Breen

The Bill proposed by Deputy Jim O'Keeffe does immediate good in that it forces the House to debate an issue of genuine concern throughout the country.

Every home owner should be allowed to defend his or her property from any intruder into the dwelling, which is what the Bill proposes, as long as it is done with reasonable force. In the past, I regret to say, the home owner was supposed to retreat, but who in today's world could do that, when the Garda is so under-resourced that any attempt to raise the alarm would meet with great delay, by which time the danger posed by the intruder would be even greater? Anyone should be allowed to defend his or her house from an intruder with reasonable force. That message should issue from this House loud and clear.

I do not accept the Minister's contention that this Bill is merely a headline-grabbing stunt. If that is so, it was equally the case when Senator Morrissey of the Progressive Democrats published his Bill early in June. Of course, the law should take into account the circumstances when such an intrusion occurred, whether children, elderly relatives or other family members were present and whether there was risk of injury or harm to them. In rural areas the Garda will not have an immediate effect on such incidents. I am concerned that the Bill does not go far enough in covering situations with plain-clothes gardaí. In such cases, the home owner has a get-out clause whereby he or she could assault a member of the force, pleading ignorance of the circumstances in the belief that the garda was an intruder.

Greater thought should be given to the definition of an intruder and reasonable force to prevent this Bill being used by a home owner as a recourse when he or she has become involved in a row with a visitor, afterwards stating that the person had not been invited and that his or her identity had not been known. High profile cases here and in the UK have fuelled debate on such matters in recent times.

I urge the Minister to act on citizens' genuine concerns and introduce legislation as soon as possible to protect home owners. I hope that he will withdraw his amendment and accept the Bill.

Mr. F. McGrath

I am pleased at the opportunity to speak on the Criminal Law (Home Defence) Bill 2006, whose purpose is to provide for the protection of home occupiers who confront intruders or trespassers within a dwelling. No one has the right to break into anyone's house or carry a weapon such as a knife, syringe or gun. Each family has a right to the full support and protection of the law. People are also entitled to use reasonable defensive force to protect their families and households.

However, that does not include shooting a retreating man, beating him with sticks and then shooting him again, neither does it mean kicking a person's head as he lies on the ground. Such brutality is not defensive force. In their hearts, people know exactly what reasonable force is, and I know that from first-hand experience. I remember having a very close shave when a knife was pulled on me. A friend standing nearby spotted it and threw a barrel to knock it from the bully's hand, thus allowing our escape. To me, that was reasonable defensive force.

I agree with section 4, but it must be tightened to ensure that innocent people do not suffer. That is why I am interested in some of the views expressed in Senator Morrissey's Bill. On the broader issue of crime, we must examine more closely the causes and our responses to ensure maximum support for the victim. Middle Ireland will have to waken up and do its bit on the drugs issue given that, by stoking demand for cocaine, it is part of the problem. We must all face that reality soon. The issue is one of supply and demand. It is simply not good enough for wealthy yuppies to have their cocaine on a Saturday night and throw their hands up in outrage when drug-related shootings become common in Dublin. There is a strong connection between violent crime and assault and hard drugs.

Overall, I welcome the debate but I have major concerns with the Bill. I urge a balanced debate, a sensible response and respect for people's rights, with the focus on victims, and stress the urgent need for proper crime prevention strategies. You cannot beat the good old-fashioned garda on the beat in the local community.

Mr. McHugh

This debate encapsulates the worst aspects of politics — shadow boxing, the "cute hoor" approach and blatant political opportunism. This issue being addressed tonight is very serious. Undoubtedly, the balance of protection must revert to law-abiding citizens who wish to protect their property and families from law breakers. The blatant political opportunism to which I have referred is not confined to one side of this House. It is a charge that has widespread utility.

In response to the Fine Gael Bill, the Government's amendment calls for a deferral of consideration of this issue while the proposed Criminal Justice (Miscellaneous Provisions) Bill is being prepared. This is the response of a Government whose Minister for Justice, Equality and Law Reform has assisted a Senator from his own party to produce a Bill similar to the Fine Gael Bill. That is playing politics with this issue.

On the other hand, Fine Gael has brought this Bill forward because it believes, in the words of Deputy Kenny, that it is "utterly ridiculous and ludicrous that, as it stands, if a person does not retreat but defends his or her home and family against an intruder, that intruder might sue that person". The utterly ridiculous and ludicrous situation referred to by Fine Gael was brought about by the introduction of a law in 1997 by none other than a Fine Gael Minister for Justice.

Mr. J. O’Keeffe

That is not true.

Mr. McHugh

This is also an example of playing politics with this issue.

Mr. Hayes

Has the Deputy become a card carrying member of Fianna Fáil?

Mr. McHugh

If the law is utterly ridiculous and ludicrous today, it was ridiculous and ludicrous in 1997. The sad part is that while this political jockeying goes on, people throughout the country, particularly the elderly, are afraid in their own homes and have no confidence in the political system.

Mr. J. O’Keeffe

Would the Deputy blame them for feeling this way, given the current Government?

Mr. McHugh

The Bill confines itself to activities within dwellings but what about incidents with the curtilege of a dwelling house? Why is the Bill so restrictive? In respect of intruders or trespassers, is it conceivable that a fairly aggressive child who trespasses could be badly beaten up by a property owner? I think it is.

Mr. Gregory

I listened to what the Minister had to say last night. Unlike some of my colleagues, on balance I must support the provisions of this Bill. The Bill addresses whether the force used by a householder is reasonable when he or she confronts an intruder and struggles to protect his or her home. The Bill affords protection from civil liability to the actions of a householder in such circumstances and removes any requirement that the householder should retreat rather than confront an intruder. The current law, as set out in the 1995 Act, is inadequate and the balance is not sufficiently on the side of the person defending his or her home. The law-abiding vulnerable person who is in fear and under serious threat of injury, assault or even death in his or her home requires greater legal protection.

I am not impressed by any of the Minister's arguments, least of all the argument that he must reject this Bill to give himself time to analyse its merits when it is clear that the Bill can be accepted on Second Stage and amended, where necessary, on Committee Stage. This issue is causing great public disquiet. We are told that 500 burglaries take place every week. According to the Minister's statistics, one Garda district in my constituency covering a large part of Dublin 7 experienced 658 recorded burglaries last year. Of those, a mere 65 were detected.

Breaking into any person's home is a despicable crime. It causes great fear, particularly among elderly people, and arouses understandable emotions. It is due to this Government's failure to provide sufficient gardaí for regular foot patrols in the community that there are so many house break-ins. Consequently, the number of detections is pathetic.

Dr. Cowley

Hear, hear.

Mr. Gregory

In these circumstances, the Minister is failing again in his duty to the public by his refusal to accept this Bill on Second Stage. If the law is to be a deterrent, the balance must be clearly on the side of the citizen and against the law breaker.

Dr. Cowley

Hear, hear.

Mr. Cuffe

The British Prime Minister, Tony Blair, once announced that he would be tough on crime and tough on the causes of crime, but we do not hear much talk from him about the causes of crime these days. We do not hear much talk about the causes of crime from Fine Gael either. In the advertisements for Fine Gael, Deputy Kenny states that he will make the criminals pay for their crimes. What about the causes of crime and what about the Fine Gael of a generation ago? What happened to the caring and compassionate ethos that characterised Fine Gael some 30 years ago? What about the renaissance in Fine Gael that took place under Garret Fitzgerald? Under his leadership, the party sold itself as a liberal, progressive and dynamic party. Back then, it reached out to all classes in Irish society. It reached out to the vulnerable, the dispossessed, the marginalised and those who had been affected by crime.

I worry that at the moment Fine Gael is more interested in being tough on crime than being tough on the causes of crime. The Daily Telegraph would be happy with this Bill but reasonable people will realise that we must also look at the other side of the coin and deal with the causes of social exclusion, drug use and crime in Irish society.

On Deputy Kenny's first day in the Dáil, when he was aged 24, he spoke to a huge crowd of supporters outside Leinster House. In his speech, he said that he believed in the greatest good for the greatest number. That is good enough but he must also deal with those who have been marginalised, not just the victims of crime but those who commit crime. It is a brave and courageous step to address this. Fianna Fáil and the Progressive Democrats have not gone far enough. The RAPID programme is well-intentioned but it has not received the attention and funding and produced the results that it should have. After nine years of unparalleled economic growth, we must also deal with the social issues.

I know that the Fine Gael leader has been portrayed by his handlers as the sheriff rolling into town to deal with the baddies. However, I suspect that he has a caring, gentler and more compassionate side so I will give him the benefit of the doubt. I suspect that if one scratches the surface, one will find a man who is truer to the Fine Gael ethos of the early 1980s than one might be led to believe.

I call on Fine Gael not simply to grab the headlines with the image of the sheriff rolling into town but to address the underlying causes of crime. I suspect we are all agreed on many issues. We agree that we want more gardaí on the beat and more community gardaí. We want these community gardaí to serve in neighbourhoods for longer and have greater continuity rather than be shifted off to a new area without anyone being informed. We want more drug rehabilitation, more education and a greater emphasis in our prison system on rehabilitating people so that they can play a constructive role in our society. We want more investment in RAPID areas, not just in training and education but also in the physical fabric, green spaces, sporting facilities and facilities for children and lone parents. We need all these things. I urge Fine Gael to spend more time emphasising these issues and ensure that we create a better society, rather than simply lock up criminals.

I worry about the thrust of this Bill and that, in the wrong hands, it would lead to violence and damage being perpetrated to an excessive degree. The Government's critique of the Bill last night is in many ways valid.

Aengus Ó Snodaigh

When he presented this Bill last night, Deputy Jim O'Keeffe argued that it is the victim, rather than the criminal, whose rights should be protected by law. However, the law must strike a balance between the rights of victims and those of alleged criminals. We should not forget that a fundamental premise on which our justice system is supposedly built is the presumption of innocence until proven guilty. This Bill fails to ensure that balance.

Deputy Jim O'Keeffe went on to state that the Bill's raison d’être is to provide clear protection to those who find themselves in the unfortunate situation of confronting a criminal in their home. Fine Gael’s ultra-regressive proposal throws out the crucial safeguard of a presumption of innocence and sends the message to householders that they should act as judge, jury and executioner whenever they find someone uninvited on their properties. The crime of trespass under statute is not punishable by a kicking.

In March 2002, Deputy Jim O'Keeffe cited Article 34.1 of the Constitution, which provides that: "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution". He went on to state: "Very obviously, any involvement in or support for vigilantism would run utterly counter to this particular provision of the Constitution." This Bill undeniably encourages vigilantism.

Mr. J. O’Keeffe

Utter codology.

Aengus Ó Snodaigh

By the Deputy's own admission, he is advocating measures that run counter to the Constitution. How does this lie with the Deputy's proposed coalition partners? The coalition of the confused does not know where it stands on neutrality, the privatisation of Aer Lingus and this right wing criminal justice agenda. The Labour Party should reject that agenda and form a progressive coalition with An Comhaontas Glas and Sinn Féin.

Legislation exists on this issue whereby a person can use reasonable force in the face of a perceived threat, but this Bill does not stipulate that force may only be used in the face of a threat to one's body or life. It sends a message that one can beat up anyone found in one's home without fear of being brought to justice. There are many scenarios wherein this legislation could result in people innocent of any crime getting the shit kicked out of them without any redress through the courts being available to them. Last night, the Minister, Deputy McDowell, outlined a number of incidents and we could imagine many other scenarios to disprove the Bill's intentions.

Deputy Jim O'Keeffe also argued that the protection in this Bill would have no effect where the householder kills an intruder in cold blood and that the Bill does not seek to justify over-the-top or premeditated actions in any way. What of the householder who brutally beats and perhaps permanently disables an alleged intruder? The Bill would justify that householder's actions.

I am aware of an incident in my area involving a man who had suffered a break-down after the death of his mother. A number of years later, he returned to the house in which his mother died, but by that time it had been sold to someone else. The man had been drinking and was confused. He tried to gain entrance, but the new householder had changed the locks. Under this Bill, while the man had no criminal intent, the householder would have been entitled to beat him to within an inch of his life had he gained entrance. There are circumstances of people being in the wrong place at the wrong time, a factor that is not taken into account.

With this Bill, Fine Gael and anyone who votes in favour of it are encouraging an increased use of unnecessary violence. I urge people not to support the Bill, which Sinn Féin will oppose.

Mr. Hayes

We would be surprised if Sinn Féin supported it.

Mr. Neville

I wish to share time with Deputies Pat Breen, Hayes and Durkan.

I welcome the opportunity to congratulate Deputy Jim O'Keeffe on introducing this Bill, with Fine Gael's full support. It is necessary legislation as it not only ensures that a person has a right to defend his or her home and family, but also that the person can feel safe in that home. The Bill is also important as a deterrent in that it will send a clear message to the 500 burglars who break into homes each week that such crimes will no longer be tolerated and that the State will bring to bear all the forces at its disposal to ensure such does not happen.

The legislation is particularly important in rural areas. All Deputies who represent such areas know of elderly people, widows on their own or others, such as wives who are at home with their families because husbands are on shift duty, who are frightened due to the level of burglary and the sometimes associated violence. In all our parishes, there are elderly people who have had the remainder of their lives destroyed and shortened because of muggers or intruders who need money for drugs or whatever. Such intruders enter homes, beat up people and sometimes take their lives for €20, €30 or €40.

Crime levels have dramatically increased and society has a greater tolerance of crime than previously. Levels of murder, assault, street violence, anti-social behaviour and burglary are increasing, but detection rates are decreasing. This Bill returns some level of power to home occupiers to defend their homes. Currently, they are at risk of being prosecuted as law-breakers or sued by intruders if they defend their homes in certain circumstances.

The Bill does not advocate excessive violence, rather it advocates shifting responsibility from the home occupier to the intruder and puts the onus on the latter to prove whether excessive violence was used. Currently, the occupier must defend a situation in which he or she did not decide or intend to become involved. The criminal intent was on the part of the intruder, but the defender of the home becomes the criminal and can be charged. The victim should not be a criminal. While this Bill protects the rights of the criminal, it introduces a level of justice for the home occupier instead of applying a law to the occupier, as Deputy Jim O'Keeffe said.

We are sending a clear message on breaking into homes, stealing property, endangering people and committing violent acts. There is nothing more traumatic for someone than waking up in bed and finding an intruder holding a knife. People, in particular the elderly or those who are vulnerable, never fully recover from such an experience as it has a deep effect on the psyche. A person possessed of his or her full faculties, strengths and ability to protect himself or herself finds it easier to address that trauma, but it can be distressing for vulnerable people.

This approach is not unique to Ireland. Other jurisdictions have examined this issue, perceived the same problems that the Bill deals with and attempted to address them in the same way, and we are asking the Dáil to do likewise.

Mr. P. Breen

For some time, the reality of life is that the scales of justice have swung in favour of the criminal and away from the victim. That is particularly true in the case of burglaries where home owners may face the bizarre situation of being sued for damages if, in the defence of their homes and loved ones, they cause undue injuries to intruders or the intruders trip, slip or otherwise have accidents while being unlawfully on the property of the victims. Therefore, I welcome the opportunity to speak on this Bill on behalf of my party and I commend Deputy Jim O'Keeffe on bringing it before the House.

The Bill covers such circumstances as an intruder intent on burglary or worse entering the home of a private citizen. As some of my colleagues have pointed out, Article 40.5 of the Constitution sits uncomfortably with the law as it stands. How can the dwelling of every citizen be inviolable if criminals can act with such impunity? No one is saying that a home owner should have an absolute right to do what he or she wants upon finding an intruder. We must always guard against the use of excessive force but the law should not be weighted against a person who engages in reasonable behaviour. I hope the Government supports this Bill, which would act as a warning in light of a rising number of house break-ins.

In my constituency of Clare, there is a worrying trend of rising numbers of burglaries while other headline crimes are going down. There were 316 burglaries recorded in Clare last year, an increase of 15 on 2004. Only 51 of those were detected, which indicates that this type of crime is on the increase. In contrast, overall crime, at 1,530 recorded offences, is at a three-year low in Clare. Detection rates of burglaries remain low because of the nature of the crime. In many instances in recent times, isolated homes in rural areas have been targeted by roving gangs. While this points to the need for preventative measures, such as increased Garda patrols, the nature of the crime is such that, from time to time, people are confronted by burglars in their homes.

The change in the law which would occur if this Bill were enacted would strengthen the legal rights of ordinary people who attempted to protect themselves, their loved ones and their properties against burglars. Even if such intruders are not armed, it is surely, as Deputy Neville said, one of the most frightening experiences in anybody's life to confront somebody in this manner.

The use of proportionate force can be very difficult in such circumstances. The intruders themselves often behave very violently when panicked and in the dead of night it is impossible for a homeowner to know if such people are armed or, indeed, if they have accomplices. As I have already mentioned, this Bill proposes to do away with the current provision whereby an intruder can sue a house occupant for injuries to their person, despite the very clear illegality of the situation. The law as it stands is a charter for burglars, offering them a protection should their enterprise be rudely interrupted.

Section 3 of the Bill moves to redress this imbalance by creating the presumption in favour of the victim that any force he or she uses to protect themselves, their home or their family is reasonable. The Bill also removes the current anomaly that occupiers should retreat from confrontations with intruders, a ridiculous situation when, as often happens, a person wakes up in the middle of the night to find that there is an intruder in his room. It factors in extenuating circumstances for the victim that he may have been acting in defence of other house occupants, that he may not have had the time to consider an alternative form of action or that such options were not available to him. However, as has been noted, it does not provide an excuse for killing an intruder in cold blood or justify a situation where an intruder can be recklessly set upon.

This is a very carefully crafted Bill aimed at providing a just regulatory framework for a very specific, but very important, area. It is a reasonable Bill. It shifts the onus of proof away from the victim in the event of proportionate force being used, but it does not provide a protection against excessive force resulting in death or serious injury. It is part of Fine Gael's vision to create a better Ireland, to improve standards in our community, to put down a marker for burglars and to reinstate a person's home as his castle.

Mr. Hayes

I am pleased to have the opportunity to speak on this very important Bill. I commend Deputy Jim O'Keeffe for bringing it forward and for putting much thought and research into it. Members tonight have questioned Fine Gael's intent in introducing the Bill but it was discussed by the parliamentary party, by the membership and at the Ard-Fheis. It was inspired by the enthusiasm of the membership and of the public to do something to protect the most important thing we have in our lives, the family home. The debate has been dragged all over the place, with various people making different points, but we put forward this Bill simply to protect our family homes.

I will declare an interest in the subject. Some years ago I was in Leinster House on a Wednesday night. I left for Tipperary and went home to bed at 1 a.m. I rose at 6 a.m. to find that my home had been burgled, so I know at first hand the effect it had on me and my family that someone had been in our house, roaming around the rooms downstairs, and had taken some valuables. It could have been worse. If I had had to face the intruder I know I would have had to protect my family and my house.

There are thousands upon thousands like me whose homes have been burgled and whose families have been frightened. For anybody to say it is political opportunism for a political party to introduce such a Bill in this House is very unfair. We are not opportunistic but bring it forward because there is a huge demand for it, given the way Irish society has developed in recent years. It is important to protect people's homes. As a Parliament and a country we are not worth our salt if we do not protect the family home. Irish people borrowed heavily to build their homes and make them nice for their families. Everything about our lives and the rearing of our families centres on protecting our homes. That is what this party is doing tonight and I am very proud, as a member of Fine Gael, to support this Bill. Those who oppose it are disingenuous and politically motivated. We must face up to the fact that something needs to be done.

I commend the Fine Gael Party and Deputy Jim O'Keeffe for bringing the Bill before the House. He speaks not only for Members of this House but a huge section of the public that is affected by the issue. I know Senator Morrissey's family and the part of the country from which he comes and I appeal to him and his party to think very hard about it, because people in the part of Cashel in which he was born would support what we propose. There should be no division on this matter. The whole of the Oireachtas, if we are to represent the people and their interests, should row in behind this Bill and cut out the shenanigans. The details can all be dealt with on a later Stage but at this time I urge the House fully to support Deputy Jim O'Keeffe's proposals.

Mr. Durkan

Uncharacteristically, I strongly support the concept of what this Bill entails. I reject entirely the suggestion that there is any intent to undermine the constitutional rights of the accused. I congratulate Deputy Jim O'Keeffe and Fine Gael on introducing the Bill.

There is in this country a growing belief that the victim no longer counts, that the victim is no longer safe in his or her home. A criminal is entitled to a fair defence if they are caught for rape, robbery or assaulting a person and leaving them paralysed. As previous speakers have already said, a person's home is his castle. If people cannot feel safe in their own home they cannot feel safe anywhere, which is an internationally recognised principle.

I was present in this House in 1984 when the Criminal Justice Bill was introduced. It was deemed to be too severe so we waited and waited. Then Veronica Guerin was tragically murdered, which focused public attention on something that should have been addressed. I felt the action taken then would work to the disadvantage of innocent people but I was wrong.

I am surprised to see so few Members on the Government benches. It looks as if it does not matter any more. Decent, law-abiding, innocent people no longer feel safe in their own homes. If they take action against intruders in the middle of the night they can be sued in court. They could end up having to sell their home to defend their case in court. If that is the way society has gone, then we have reached a sad stage where innocent people minding their own business in their own homes are no longer safe and the laws of the land will not protect them. That is a stark message. I congratulate Deputy Jim O'Keeffe on bringing forward this Bill because it focuses on an issue in the minds and hearts of the people at this time.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Killeen)

I wish to make it clear the Government is also mindful of the concerns raised by Deputies in the debate on this Private Members' Bill in the name of Deputy Jim O'Keeffe. It is fair to say concern for the safety of law-abiding people in their own homes is not the sole preserve of any party or Deputy. My colleague, the Minister for Justice, Equality and Law Reform, is already on record stating it is his view that the Government may give sympathetic consideration over the coming months to some of the issues raised in Deputy O'Keeffe's Bill. That said, there would appear to be weaknesses in the Deputy's Bill which need to be addressed.

The House will know that another Private Members' Bill was recently introduced in the Seanad in the name of Senator Morrissey. This Bill also deals with the issue of the defence of the family home but there are clear distinctions between it and Deputy O'Keeffe's Bill. For example, Deputy O'Keeffe's Bill concerns itself with the provisions of the Non-Fatal Offences Against the Person Act 1997 whereas Senator Morrissey's Bill also considers the issue of fatal offences. We are all aware that fatalities can and have occurred in the past in the context of intruders entering a property uninvited.

The provisions of Deputy O'Keeffe's Bill are confined to the dwelling itself. There is no reference to the curtilage of the house, that is, the area surrounding the home, while Senator Morrissey's Bill provides for a defence in criminal proceedings where the use of force by an occupier took place in a dwelling or in the area of a dwelling in circumstances where the trespass in question was done for the purpose of committing a serious criminal offence and the action of the occupier entailed the justifiable use of force.

The question of the reasonable use of force is crucial. Force used in such circumstances must be reasonable by reference to the circumstances believed by the occupier to exist. The reasonableness of such force is a key element in any such incident. We all wish to protect ourselves, our families and our property from danger but we must all be accountable for our actions which should not go further than is reasonable in the circumstances.

The law must strike a balance between the competing rights of those involved in any incident of this kind. A situation in which an intruder enters a family home with some kind of criminal intent, perhaps where children or other vulnerable people are present, is bound to be fraught with emotional danger. The level of reasonable force used to remove or disable a trespasser may be difficult to assess in the heat of the moment. It is a situation in which unintended consequences of actions might easily occur.

The provisions of the Non-Fatal Offences against the Person Act 1997 have served us well. They were drafted following recommendations of the Law Reform Commission. Section 20(4) of that Act states the fact that a person had an opportunity to retreat before using force shall be taken into account in determining whether the use of force was reasonable. Deputy O'Keeffe's Bill proposes that this provision should not apply where force is used within a dwelling by an occupier.

My colleague, the Minister for Justice, Equality and Law Reform, said during the debate on this Bill that he has some sympathy with the view that the retreat provision should be revisited. The issues raised in this Bill and in Senator Morrissey's one are of importance and are regarded as such by the Government. However, they are issues about which we need to be careful. They are matters which require careful analysis and consideration before any fundamental change in the law in this area is proposed.

The Government will oppose the Bill which contains certain weaknesses. For example, there is no distinction in the Bill between various kinds of trespasser. There is no reference to criminal intent and no protection for accidental death. The property surrounding the house is not included. However, the Government is of the view that the subject matter of the Deputy's Bill is worthy of further consideration. A criminal justice miscellaneous provisions Bill will be introduced in the House in the autumn. My colleague, the Minister for Justice, Equality and Law Reform, said last night the Government will consider whether this issue should be addressed in that Bill. In that context, the Government will consider, among other matters, the proposals set out in Senator Morrissey's and Deputy Jim O'Keeffe's Bills.

Mr. Kehoe

I welcome this Bill introduced by Deputy Jim O'Keeffe. There can be no doubt that measures are urgently needed to allow people to rest easy in their own homes. In response to questions posed by Deputy Kenny during Leaders' Questions this morning, the Taoiseach told the House that any response should be proportionate. I agree with the Taoiseach that it should be proportionate and legal. However, we must be careful with the language we use so it does not give the rights of the intruder precedence. We need to put the rights of victims first. In fact, we need to ensure families do not become victims in their own homes as the measures in this Bill ensure.

This Bill would be welcomed by people the length and breadth of this country. Along with the obvious measures, there are ones which would protect the rights of homeowners. It is equally important that the measures contained in the Bill act as a deterrent to criminals. It would send a very strong message to criminals that the law is no longer on their side and that legislators are prepared to stand up to them and that legislation will give priority of to the rights home owners.

I was recently visited by a 73 year old man from a very rural village in County Wexford on whom a serious and violent assault was carried out at 3 a.m. Fortunately, this able-bodied man of 73 years of age succeeded in defending himself and his home. Unfortunately, he was left naked on the side of the street, something about which he will often ask questions. What is being done to protect him and his home? Why should his home be burgled at 3 a.m.? Why should he be afraid in his home at 3 a.m.? On a number of occasions this man was injured and brutally attacked by robbers, thugs and tramps — the people who carry out these crimes. There was also the case of the elderly man in County Offaly a number of years ago who was attacked and as a consequence died a number of months later.

As my colleagues said, those types of crime are being carried out on the elderly, who are vulnerable in their own homes. What would the Taoiseach consider a proportionate response to what the man about whom I spoke experienced? What is the Government's response to the escalation of this type of crime throughout the country?

This Bill goes far enough. The legal advice received by the party and by Deputy O'Keeffe is that it is constitutional. Furthermore, it seeks to redress the balance in favour of home owners rather than the thugs and criminals who break in to violate a person's property. The measures in this Bill will provide a framework under which the victims of crime will know where they stand. The current situation, where there is no legislation in place to protect home owners, is not only creating a sense of fear but also a belief whereby home owners feel compelled to take matters into their own hands. They believe the law is morally on their side but legally is not. If any person wakes to hear intruders entering his or her home in the middle of the night, they face the despicable scenario whereby the must retreat from the intruder. He or she faces the possibility of being sued by the criminal who has entered their house. Should he or she choose to defend their family, property and possessions, the onus will be on him or her to prove this defence was reasonable.

In reality victims of break-ins in their homes are left totally at the mercy of the criminals and the legislation is not in place to offer them support and back up which should be their entitlement. This Bill seeks to offer that protection to homeowners and the Government should accept it for the good of those people it seeks to protect. As I said, the enhancement of legislation in this regard would send a powerful message to criminals and thieves that they will not get away with terrorising people in their own homes. Fine Gael will do everything to ensure ordinary, decent people can rest in their homes at night safe in the knowledge that right is on their side when protecting their families and property.

I was very surprised to hear Deputy Ó Snodaigh state that anybody who supports this Bill is voting for unnecessary violence. Deputy Ó Snodaigh should go back to Sinn Féin and his republican army and talk about the unnecessary violence they have carried out over many years. How dare he come to this House to lecture Fine Gael about unnecessary violence.

Mr. J. O’Keeffe

They would probably call it necessary.

I thank all those who contributed to the debate, which excited much interest. I am not surprised it did so. Last November, when we debated the issue on Priority Questions, the Minister for Justice, Equality and Law Reform, Deputy McDowell, issued a challenge to me to produce this Bill. I thank all those who helped me in the preparation of the Bill — the legal experts, criminal lawyers, laymen and parliamentary colleagues.

The Bill, which I propose on behalf of Fine Gael, deals with three main issues. First, it proposes that no person should have to retreat from an intruder in his or her home. Second, it seeks to ensure that if people use force to defend their homes and families, they would not have to prove it was justified, and the prosecution would have to show it was not reasonable. If it was not reasonable and if the homeowner crossed the line, he or she would deserve the rigours of the law. However, Fine Gael feels strongly that the law must favour the victim and not the criminal. Third, the Bill seeks to prevent intruders from using a ridiculous loophole in the law to sue the innocent homeowner when the burglar had created the conditions himself.

Mr. McDowell

Who put the loophole in place? The Deputy voted for it.

Mr. J. O’Keeffe

That is not correct. These are simple, sensible, effective measures that are supported by right-thinking people. The Bill represents an honest and considered approach to this national and important issue. We expected, given the statements from the Government parties and the challenge issued to me in the House last November by the Minister, that the Bill would be favourably received and that the Government, which has passed so much incidental law on justice, would see the merits in our proposal and support the Bill. Is that how the Minister, Deputy McDowell, received the Bill? It was not. Instead of constructive acceptance, we were met with facetious assertions that had no basis in fact, fanciful scenarios that stretched the bounds of credibility, one-upmanship of the most deplorable kind and, as ever from this Government, the most selfish and self-serving stubbornness.

When given a set of sensible proposals, the Minister went about trying to dream up situations which he thought might introduce doubt into this debate. He invented circumstances that might challenge the Bill instead of looking at the strengths that he knew were in it. Earlier in the debate, one of the ludicrous settings with which the Minister sought to question the Bill was that of a gate-crasher at a party. He tried to insinuate that if someone tried to gate-crash a party, that person would be torn limb from limb and that no-one would bear responsibility.

Mr. McDowell

That is what the Deputy said would be the result of the Bill. It was an extraordinary admission on his part but that is exactly what he said.

Mr. J. O’Keeffe

He knew this was ridiculous, mischievous and also incorrect. The actions he described simply could not be viewed as reasonable and would not be protected by the Bill.

Mr. McDowell

That is what the Deputy said.

Mr. J. O’Keeffe

He knows perfectly well — it is clear in the Bill — that we are talking about intruders, burglars and housebreakers.

Mr. McDowell

The Deputy never referred to burglars.

Mr. Kehoe

The Minister should listen to some common sense.

Mr. J. O’Keeffe

Perhaps most laughable of all were the Taoiseach's comments this afternoon——

Mr. McDowell

The Deputy forgot to put the reference to burglars into his text, which is sad. He is intent on reading his script and ignoring any replies.

Mr. J. O’Keeffe

I am not surprised at the Minister's interruptions. He will not bully me. He had his chance.

Perhaps most laughable of all were the Taoiseach's comments this afternoon when he tried to tell us the Bill would allow someone to be shot in the garden of the house but not inside.

Mr. McDowell

A non-fatal solution.

Mr. J. O’Keeffe

This is so incredibly off the wall that I can only assume the Taoiseach had not studied the Bill because it bears no resemblance in any reality to what is contained in it. Then, not content with trying to devise preposterous situations for the House to consider, the Government pulled a predictable stroke by making an amendment to the Fine Gael motion in Private Members' time that would delay the Bill indefinitely. The Government does not even have the political conviction to oppose the Bill. It will not stand by its principles, not even when it clearly agrees with the proposal and when it has drafted a Bill that has the same thrust as the Fine Gael Bill.

Mr. McDowell

We do not agree with 90% of the Bill. It is nonsense, as the Deputy well knows.

Mr. J. O’Keeffe

The Government cannot oppose the Bill because it agrees with it. Everything we have seen in the House in the past two days has been nothing more than political shadow boxing.

The Taoiseach and the Minister for Justice, Equality and Law Reform agree with the thrust of this Bill. They know it makes sense. I accept they might have problems with the detail contained in it — one cannot please all of the people all of the time — but that is why we have committees of the House.

Mr. McDowell

Hear, hear.

Mr. J. O’Keeffe

That is why all legislation that goes through this House is debated on Second Stage and then sent to committee for fine tuning and amendment. If the Government has issues with the details of the Bill, let us pass Second Stage and debate the Bill in committee, where it can be amended, as was done earlier today with a Bill proposed by the Minister.

Mr. Hayes

It is that simple.

Mr. McDowell

Why do we not accept Senator Morrissey's Bill? It is more reasonable and better drafted than this rubbish.

Mr. J. O’Keeffe

Any Government with the power of its convictions and the interests of the country at heart would do that. That is what I am asking the Minister to do immediately. Let us not put any more legislation on the long finger, let us not defer action. Let us grab the bull by the horns and enact legislation that makes sense, has broad acceptance and will make a difference to Irish householders throughout the country.

Mr. McDowell

It is sad that a person who believes himself to be a lawyer is putting forward such rubbish on this occasion.

Mr. J. O’Keeffe

If the Government fails to allow the Bill to pass to Committee Stage, it means one of two things. It either agrees with the substance and general direction of the Bill——

Mr. McDowell

We do not.

Mr. Hayes

We know.

Mr. McDowell

Deputy Hayes should keep quiet, or it could get him a hand in the mouth fairly soon.

Mr. J. O’Keeffe

——but it refuses to put the interests of the country first, or, alternatively, it disagrees with the proposal and it feels that householders do not need protection, do not need their fears assuaged, and can make do with the law that is in place. Either way, the Government must make a choice. The least we expect of it is to stand by what it believes in.

I am accusing the Government of putting political expediency before the right of householders——

Mr. McDowell

Tabloid rubbish.

Mr. J. O’Keeffe

——to defend their homes by refusing to support the Criminal Law (Home Defence) Bill.

Mr. McDowell

The Deputy failed to get it right. He is engaging in the most ridiculous theatrics.

An Leas-Cheann Comhairle

Order, please.

Mr. J. O’Keeffe

For the past two days, the Government has engaged in political shadow boxing and has ignored the plight of householders, many of whom feel threatened by the prospect of a break-in. Fine Gael has drafted a sensible Bill which would tip the law back in favour of householders.

Mr. McDowell

Let us see it. This is not a sensible Bill. The Deputy must have kept it in the bottom drawer back at party headquarters.

Mr. J. O’Keeffe

This comes in the wake of a 12% rise in burglaries, according to the latest Garda figures.

The Government has no reason not to support the Bill. The Taoiseach and the Minister, Deputy McDowell, agree with the thrust of the Bill because it makes sense. Given recent statements from the Government parties, it was not unreasonable for me to expect the Bill would be favourably received. Instead, the Government has engaged in blatant stroke politics by deferring this issue for another six months for debate.

I stated last November I would rise to the challenge and produce a draft Bill.

Mr. McDowell

The Deputy did a bad job. He is ashamed of how badly he failed because, despite having a well-paid draftsman, he came up with a heap of legal rubbish.

Mr. J. O’Keeffe

The Government does not even have the political conviction to oppose the Bill because it essentially agrees with it, as does the Minister, Deputy McDowell.

Mr. McDowell

The Deputy should ask for his money back. He got a very bad draft.

Mr. J. O’Keeffe

I ask the Taoiseach and the Minister what sort of debate they expect will happen this summer, given that the Dáil goes into a three month recess next week. The truth is that the parties in Government cannot agree among themselves. They want to delay the Bill indefinitely.

Mr. McDowell

What about the Labour Party? It knows the Deputy is talking rubbish.

Mr. J. O’Keeffe

Worse, the Government parties have made facetious assertions about the Bill which have no basis in fact.

Mr. McDowell

The Labour Party is ashamed of Fine Gael's stance and will not vote for the Bill.

Mr. J. O’Keeffe

The Taoiseach's statement that the Bill would allow someone to be shot in the garden, but not inside a home, suggests he has not even read the Fine Gael proposals. This bears no resemblance to anything drafted by Fine Gael. I have already referred to the Minister, Deputy McDowell, dreaming up situations where the Bill might be challenged, such as with regard to gate-crashers.

Mr. McDowell

Deputy Lynch has just arrived in the House to vote against the Bill. So much for the Mullingar accord.

Mr. J. O’Keeffe

These comments are facetious. The Minister knows Fine Gael is referring to burglars, not party-goers.

Mr. Treacy

I would not want to be going to the Deputy's party.

Mr. J. O’Keeffe

Fine Gael has received strong support from the public for the Bill. We have been suggesting for at least two years that something must be done to ensure the rights of homeowners. Deputy Kenny made it one of the key justice proposals in his Ard-Fheis speech.

Mr. McDowell

Waffle.

Mr. J. O’Keeffe

We want to ensure that people are not forced to retreat from an intruder in their homes, that they can use reasonable force to protect their homes and that they will not sued for doing so.

Mr. McDowell

Why did Fine Gael enact the Bill in 1997 if it is so worried about it in 2006?

Mr. J. O’Keeffe

The Government should grab the bull by the horns and support the Bill. If the Government refuses to do so, it is playing politics with the right of householders to defend their homes. Fianna Fáil and the PDs should remember that householders have long memories.

Mr. McDowell

What about the Labour Party Deputies? Have they lost their voice?

An Leas-Cheann Comhairle

Order, please.

Mr. J. O’Keeffe

Despite the continuing interruptions by the Minister——

Mr. McDowell

They are embarrassed by the kind of shamateur, fascist theatricals.

Mr. Howlin

We are embarrassed by the Minister.

Mr. J. O’Keeffe

I received an e-mail from the United States this morning. It states:

I read with interest your plans to try to change the laws to protect homeowners from been sued while protecting there home and families from intruders. Having been born in Ireland and living most of my life there until I moved to the USA eight years ago, I have seen at first hand the changes in Ireland over the. . . years.

Mr. McDowell

Yours sincerely, John Wayne. Come on.

Mr. J. O’Keeffe

It continued:

Gone are the times when you could expect to be safe when you locked your door at night, or walk home at 2 a.m. . . . from the TV club in Harcourt St. to Artane where I lived. When I visit Ireland now I feel unsafe wherever I go day or night . . .

I see the Minister for Justice has shelved the idea put forward by your party. From my viewpoint this is another victory for the criminals.

That sums up the Government's attitude to this Bill.

Mr. McDowell

This is sad.

Mr. J. O’Keeffe

I make one final plea to the Government to do the honest, decent thing and allow the Bill through Second Stage. If there are details to be cleared up on Committee Stage, let us do so in the normal fashion. If the Government refuses to do so and does not accept the central thrust of the legislation, it will be answerable for the consequences as it will have sided with the criminals, intruders and burglars, and denied home owners the protections of the law to which they are fully entitled.

Mr. McDowell

What is the Labour Party's position on the Bill? Its Deputies have been struck dumb during this nonsense.

Mr. J. O’Keeffe

The Government, both the Fianna Fáil and Progressive Democrats parties, will be answerable to the electorate for the consequences. This is its final chance. I beg and appeal to it to put home owners first.

Mr. McDowell

Let the Labour Party come out.

Amendment put.

The Dáil divided: Tá, 80; Níl, 37.

Tá

• Ahern, Noel.
• Andrews, Barry.
• Ardagh, Seán.
• Blaney, Niall.
• Brady, Johnny.
• Brady, Martin.
• Breen, James.
• Brennan, Seamus.
• Callanan, Joe.
• Callely, Ivor.
• Carty, John.
• Cassidy, Donie.
• Connolly, Paudge.
• Cooper-Flynn, Beverley.
• Cowen, Brian.
• Curran, John.
• de Valera, Síle.
• Dempsey, Noel.
• Dempsey, Tony.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Fahey, Frank.
• Ferris, Martin.
• Finneran, Michael.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Gallagher, Pat The Cope.
• Glennon, Jim.
• Grealish, Noel.
• Harkin, Marian.
• Harney, Mary.
• Haughey, Seán.
• Healy-Rae, Jackie.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelleher, Billy.
• Kelly, Peter.
• Killeen, Tony.
• Kirk, Seamus.
• Kitt, Tom.
• Lenihan, Brian.
• Lenihan, Conor.
• McDowell, Michael.
• McEllistrim, Thomas.
• McGrath, Finian.
• McGuinness, John.
• McHugh, Paddy.
• Moloney, John.
• Morgan, Arthur.
• Moynihan, Donal.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M. J.
• Ó Caoláin, Caoimhghín.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• Ó Snodaigh, Aengus.
• O’Connor, Charlie.
• O’Dea, Willie.
• O’Donnell, Liz.
• O’Flynn, Noel.
• O’Keeffe, Batt.
• O’Keeffe, Ned.
• O’Malley, Fiona.
• O’Malley, Tim.
• Parlon, Tom.
• Power, Peter.
• Power, Seán.
• Roche, Dick.
• Sexton, Mae.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.

Níl

• Allen, Bernard.
• Boyle, Dan.
• Breen, Pat.
• Bruton, Richard.
• Coveney, Simon.
• Cowley, Jerry.
• Crawford, Seymour.
• Cuffe, Ciarán.
• Deasy, John.
• Deenihan, Jimmy.
• Durkan, Bernard J.
• English, Damien.
• Enright, Olwyn.
• Fox, Mildred.
• Gogarty, Paul.
• Gormley, John.
• Gregory, Tony.
• Hayes, Tom.
• Healy, Seamus.
• Hogan, Phil.
• Kehoe, Paul.
• Kenny, Enda.
• Lowry, Michael.
• McCormack, Pádraic.
• McEntee, Shane.
• McGinley, Dinny.
• McGrath, Paul.
• Mitchell, Olivia.
• Murphy, Gerard.
• Naughten, Denis.
• Neville, Dan.
• O’Keeffe, Jim.
• Perry, John.
• Ryan, Eamon.
• Sargent, Trevor.
• Stanton, David.
• Twomey, Liam.

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Kehoe and Neville.

Amendment declared carried.

Question put: "That the motion, as amended, be agreed to."

The Dáil divided: Tá, 79; Níl, 31.

Tá

• Ahern, Noel.
• Andrews, Barry.
• Ardagh, Seán.
• Blaney, Niall.
• Brady, Johnny.
• Brady, Martin.
• Breen, James.
• Brennan, Seamus.
• Callanan, Joe.
• Callely, Ivor.
• Carty, John.
• Cassidy, Donie.
• Connolly, Paudge.
• Cooper-Flynn, Beverley.
• Cowen, Brian.
• Curran, John.
• Dempsey, Noel.
• Dempsey, Tony.
• Dennehy, John.
• Devins, Jimmy.
• Ellis, John.
• Fahey, Frank.
• Ferris, Martin.
• Finneran, Michael.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Gallagher, Pat The Cope.
• Glennon, Jim.
• Grealish, Noel.
• Harkin, Marian.
• Harney, Mary.
• Haughey, Seán.
• Healy-Rae, Jackie.
• Hoctor, Máire.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kelleher, Billy.
• Kelly, Peter.
• Killeen, Tony.
• Kirk, Seamus.
• Kitt, Tom.
• Lenihan, Brian.
• Lenihan, Conor.
• McDowell, Michael.
• McEllistrim, Thomas.
• McGrath, Finian.
• McGuinness, John.
• McHugh, Paddy.
• Moloney, John.
• Morgan, Arthur.
• Moynihan, Donal.
• Moynihan, Michael.
• Mulcahy, Michael.
• Nolan, M. J.
• Ó Caoláin, Caoimhghín.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• Ó Snodaigh, Aengus.
• O’Connor, Charlie.
• O’Dea, Willie.
• O’Donnell, Liz.
• O’Flynn, Noel.
• O’Keeffe, Batt.
• O’Keeffe, Ned.
• O’Malley, Fiona.
• O’Malley, Tim.
• Parlon, Tom.
• Power, Peter.
• Power, Seán.
• Roche, Dick.
• Sexton, Mae.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Wilkinson, Ollie.
• Woods, Michael.

Níl

• Allen, Bernard.
• Breen, Pat.
• Bruton, Richard.
• Coveney, Simon.
• Cowley, Jerry.
• Crawford, Seymour.
• Deasy, John.
• Deenihan, Jimmy.
• Durkan, Bernard J.
• English, Damien.
• Enright, Olwyn.
• Fox, Mildred.
• Gregory, Tony.
• Hayes, Tom.
• Healy, Seamus.
• Hogan, Phil.
• Kehoe, Paul.
• Kenny, Enda.
• Lowry, Michael.
• McCormack, Pádraic.
• McEntee, Shane.
• McGinley, Dinny.
• McGrath, Paul.
• Mitchell, Olivia.
• Murphy, Gerard.
• Naughten, Denis.
• Neville, Dan.
• O’Keeffe, Jim.
• Perry, John.
• Stanton, David.
• Twomey, Liam.

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Kehoe and Neville.

Question declared carried.