I cannot but feel sympathy for the motivation which prompted Senator O'Toole to raise the matter which was discussed earlier on the Order of Business. I hope the Leader of the House will bear in mind that Senators want to discuss the more important issues affecting the country at the earliest possible opportunity.
I share the concern expressed in the House about the necessity for greater efficiency and greater strength in the legislation controlling the importation and dissemination or the pushing of drugs in this country. I have decided to contribute to the debate on this measure because I am particularly concerned about the nature of the Bill for reasons I will explain. The Bill, of course, as the Minister for Finance made clear when he introduced it, is identical to a Bill which had been tabled by the previous Government. Therefore, it is a measure which is supported, in effect, by the previous Administration and by this Administration. What concerns me is that it comes before this House as a Customs and Excise measure. Its precise title, as the House will see is the Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987. It is brought before this House and conducted through it by the Minister for Finance and his Ministers of State. If this Bill were to be entitled the Criminal Justice Bill and if it were the Minister for Justice who came into this House, there would be much closer attention to the small print of the Bill.
In my submission, it is necessary to look very closely at the small print of this measure because it proposes to broaden very significantly the individuals, the personnel, who can exercise on behalf of the State very important powers: the power to arrest without warrant; the power to detain for a certain period in undisclosed places; the power to search; the power to apply for a search warrant; the power to enter premises forcibly, if necessary, to exercise those powers. These are powers which hitherto we have considered should be placed under the direct authority of the Garda Síochána and, indeed, in placing them in the hands of and under the authority of the Garda Síochána we have been concerned, and I think properly concerned, to ensure that there are very strict controls over the exercise of those powers.
Those controls are necessary both for the authority and responsibility of the gardaí concerned and for those against whom those powers will be exercised or directed. It is fundamental to a democracy that there are very serious checks and balances in the exercise of any such powers. This Bill comes before the Seanad without any public attention. I would say there are very few people indeed who are aware that this Bill is being discussed in the Seanad at the moment. There are very few people who are aware of the powers it is proposed to extend to public servants through this Bill. Very little attention has been paid to the implications for civil liberties in this country and for proper standards in relation to arrest without warrant, detention, applications for search warrants, forcible entry, if necessary, into premises for the purposes of search.
As I have made clear, I am not ambivalent or ambiguous on the need to control drugs. I support in the strongest way the necessity for controlling and having adequate powers. I am not satisfied about the need for this very broad extension of the kind of personnel who will be involved in exercising those powers. Perhaps the Minister in his reply to the debate can explain why he feels it necessary to broaden the net in this way, but I certainly would require an explanation. At the moment I do not see the necessity for the kind of blanket extension proposed in this Bill.
Turning to the precise text of the Bill, it is clear that it bears out the description I have been giving. First, in section 1 there is a very broad definition of what will constitute an officer of Customs and Excise. That can include a member of the Garda Síochána but it also extends to, and I quote:
any person in the public service who is for the time being employed in the prevention of the illegal importation or exportation of goods.
It may be somebody who is a full time officer of the Customs and Excise or it may be somebody — and I think we will see this increasingly — diverted from some other Department, redeployed from one of the State boards that are being wiped out almost on a daily basis, or whatever. Any person in the public service could potentially be a person exercising the kind of powers we are talking about under this Bill.
Those powers are, as I say, very widespread. If we look at section 2 of the Bill we see that an officer of the Customs and Excise, as so defined, could be a Garda Síochána, an existing full time member of the Customs and Excise, or any other member of the public service for the time being employed in the prevention of the illegal importation or exportation of goods. Under section 2 that person has powers of search in relation to controlled drugs.
If we look at section 2 (1) (i) we see that that person can search an individual and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for carrying out the search. What is "reasonably necessary" in relation to detaining for the purpose of the search? I ask that question in all seriousness because the section itself talks about a number of different searches which can be carried out. There can be a search of the person which is the search referred to in that paragraph. There can be searching of vehicles, vessels or aircraft. There can also be the examination of other items. What is the reasonable period in which a person can be searched in this manner? The real scope of it is that when members of the Garda under criminal justice legislation arrest and detain somebody, even under the most recent Criminal Justice Bill, there are very serious immediate consequences and very serious standards apply. It is not at all clear that any of these standards would apply to a person detained for the purposes of section 2 of the Bill. It is necessary for the Minister when responding to the Second Stage debate to give very full particulars of the way in which the power will be exercised.
Under section 3 of the Bill it is proposed that an officer of Customs and Excise, as so broadly defined, will have power to apply for a search warrant in relation to controlled drugs. Again it is necessary to ask why it is felt to be appropriate and apparently desirable that it should be an officer of Customs and Excise who would have this power? If the application for a search warrant is being made to a District Court or to a peace commissioner, time will have elapsed. This is not something that has to be done at the point of entry by an officer of Customs and Excise. It is something that requires a second stage or a follow-up stage. I am not against this second stage. Obviously, like any Member of the House I can envisage circumstances where it would be necessary to obtain a search warrant. Why is it considered to be appropriate to extend the power to apply for the search warrant to the broadly defined public servant? In section 3 (3) it is clear that the Garda may not be involved at all in this. There may be several public servants coming to act on the search warrant and if necessary forcibly enter a person's house without any involvement at all of the Garda Síochána. Section 3 (3) provides:
A search warrant issued under this section shall be expressed and operate to authorise a named officer of Customs and Excise, accompanied by such other officers of Customs and Excise and such other persons as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other land named or specified in the warrant...
I would like the Minister to tell the House why it is framed in such a way that it can exclude any involvement of the Garda. A month afterwards there might be a situation where officers of Customs and Excise are forcibly entering premises on foot of a search warrant without any involvement of the Garda. It brings home just how broadly we are casting the net of powers to be used and potentially, therefore, powers which can encroach upon the civil liberties of citizens. It is important that we understand the broad scope being given and that we ask questions as to why an officer of Customs and Excise would not at least have to have with him a member of the Garda Síochána. Why would he not be required to have with him a member of the Garda Síochána if he was intending a month later to forcibly enter the property of somebody? Surely that would be an appropriate and necessary safeguard.
Section 3 (4) provides:
Where any premises or land is entered pursuant to a warrant issued under this section, the officer of Customs and Excise named in the warrant may do either or both of the following—
(a) arrest without warrant any person or persons found on such premises or land for the purpose of searching him or them,
(b) so arrest any such person or persons and keep him or them as may be appropriate, under arrest until such time as such of the powers of search or examination as he wishes to exercise pursuant to the warrant have been exercised by him.
Again without any necessary involvement of the Garda Síochána this officer of the Customs and Excise can arrest without warrant and can hold such a person for an undefined time in the pursuit of that.
One might ask, for example, if we are taking about a sufficient lapse of time to go to a justice of the peace, or a peace commissioner, for a search warrant. Why not also require that a warrant be obtained for arrest? Why extend an arrest without warrant power in the circumstances if it is not necessary that the Garda themselves be involved in this. I particularise the kinds of powers that are envisaged here because I think it is extremely important that we are vigilant in this House, and hopefully in the other House and we do not allow legislation to slip through brought in by the Minister for Finance which would get a much more vigilant and strict scrutiny if it happened to be legislation introduced by the Minister for Justice. There is a completely different approach. It is not appropriate for Members of the Dáil or Seanad to say: "Oh, well, we did not really notice; we did not really perceive." We must be just as strict and just as demanding of the Minister when he replies to this debate as to why he feels it necessary to have these powers, to extend the scope of these powers and to do it in a very open ended way with a lack of definition. Obviously that is something that can be looked at on Committee Stage.
I have two other relatively brief points to make on the Bill. The first is in relation to section 12 where the Minister proposes to both confirm and extend power to make regulations specifying Customs and Excise controls which would apply generally to Customs and Excise. This is not necessarily in any way related to the problem of drugs. It is a broad section applying across the board. I would like to ask the Minister when he is replying to the debate to confirm that the powers which are referred to here are compatible with our membership of the European Community? I say that because it does seem that section 12 (2) (b) and (c) are very broadly cast. Section 12 (2) (b) would allow the Minister by regulation to:
Prohibit the importation into or exportation from the State by land of all goods or any classes of goods except by such routes within the State or at such places on the Land Frontiers, and on such days and during such hours, as may be prescribed,
That could be a quantitative measure, or measure having an equivalent effect. It could be a restriction which would not be empowered under Articles 30 to 34 of the European Economic Community Treaty. Why does the Minister want to have power by regulation to regulate the place of entry, time and the days for particular types of goods? It may be that there is every good reason for that but it seems to be very broadly cast as a power. On the face of it it seems to be a power that would infringe the principles of the free movement of goods which are part of our obligations under the European Community.
Under section 12 (2) (c) it is provided that the Minister can:
Prescribe the places where, and the form and manner in which, the entry of goods imported into or to be exported from the State by land should be made and the duties and taxes on such goods shall be paid,
If it was provided that goods could only be imported into the country through some obscure port where there was no good connection by land onwards, that would seem to be a quantitative restriction on imports such as would be challengeable under the European Community. It is a very broad power. It seems to empower the Minister to do that if he so chooses. I would like an explanation of why that section is drafted as broadly as it is.
The other section I wanted to comment on briefly is section 19 which is substituted for section 29 of the Finance Act, 1971. It relates to persons who enter the State and do not declare what they bring with them. Section 19 (3) states:
Any person failing to declare any thing or to produce any baggage or thing as required by this section shall be liable to a penalty of three times the value, including any duty or tax chargeable thereon, of the thing not declared or of the baggage or thing not produced, as the case may be, or £100, whichever is the greater; and any thing chargeable with any duty or tax which is found concealed or is not declared and any thing which is being taken into or out of the State contrary to any prohibition or restriction for the time being in force with respect thereto shall be liable to forfeiture.
I want to query the wording of that because it seems to be a provision imposing a strict liability. The provisions as to what an individual can bring into the country changed quite substantially over the years. Whether it is an Irish person returning to the country or a visitor to the country, it is very often difficult to ascertain when coming into the country precisely what the personal allowance is. Sometimes at Dublin Airport there is quite good literature available but at other ports of entry it is not so easy to ascertain exactly what the personal allowance is. I simply ask whether it is intended that there should be a very strict liability — it seems to be implied by the wording — or whether the Minister accepts that the offence is committed where a person knowingly brings in goods of a value which exceeds the personal allowance. If not, and if it is intended to impose and to continue a strict liability in that matter, more steps need to be taken at the ports of entry to make it perfectly clear what personal allowance a person can bring in. However, that is a detail in comparison to the importance of the other provisions.
I propose to table amendments in relation to the sections on the powers to be exercised by officers of Customs and Excise but in the meantime I will await a fuller explanation from the Minister of why these powers are sought in the Bill.