I made a brief contribution on that amendment and I asked the Minister if he would care to explain and justify his use of the phrase "with reasonable cause". I asked for clarification on that. Is it possible that you could invite the Minister to reply?
Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987: Report Stage (Resumed).
Debate resumed on amendment No. 1:
In page 3, lines 30 and 31, to delete "with reasonable cause suspects" and substitute "has reasonable grounds to suspect".
—(Senator Ferris.)
I want to join with Senator Bulbulia. Is the Minister going to speak. Sorry.
I am delighted to be back in the Seanad.
The Minister will be here for a while.
I am prepared to stay as long as the Senator wishes and will cooperate to the maximum with the Seanad to bring about a conclusion to this very important Bill.
At the outset I want to re-echo commitments I gave here on the last occasion I was in this House that I would consider every submission, every statement and every proposal put forward by all the good Members of this House, that I would consult with my colleagues and the various Departments and State agencies. I want to assure the House that I have done this. The consensus we have arrived at is that we must ensure that the Bill before the House will not be in conflict with the powers already vested in the Garda Síochána or already vested in the Misuse of Drugs Act, 1977. We have had detailed discussions on this, dialogue and negotiations, including communication with international customs agencies.
On amendment No. 1, in relation to section 2 which merely extends the powers that customs officers already have in relation to search to cover meeters and greeters, these powers have been used in a responsible manner by customs officers to date and I am satisfied that sufficient safeguards exist to ensure that this continues to be the case. I want to emphasise that the language of this section is taken from the Misuse of Drugs Acts, 1977 to 1984, and unless we stay in tandem with that Act and transfer the powers already vested in the Garda Síochána by the Customs and Excise Act we will find ourselves in difficulty and in conflict with the law. We cannot allow that to happen in any facet of State activity or any work of any State agency. I will have more to say on this on amendment No. 13 but I regret that I have to oppose the amendment.
In replying to the amendment that I had put forward, I wanted to elicit from the Minister the reason he used the words he used and not the words as suggested in the amendment. The Minister has given a valid reason in his response. I said I wanted the legislation to be worded in the same way. The Minister has given the reason. The wording he has used has operated successfully in the two other Acts that the Minister mentioned. In my view the other wording is better but I am satisfied that the Minister's reason for leaving the words as they are is legitimate and for that reason I will not press the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 3, line 31, to delete "in the vicinity" and substitute "within three square miles".
In line 3 the words "in the vicinity" are used. In my speech on Second Stage I wondered what "in the vicinity" was because every part of Ireland is in the vicinity of some place — in the vicinity of an airport, a ferry, or port of entry. I thought the words "in the vicinity" were rather loose. I wanted to tie down what was in the Minister's mind, or in the mind of the Parliamentary draftsman and, for that reason, I put in what I considered a reasonable vicinity of any port of entry, that is, three square miles, not as an arbitrary figure but as a figure we could discuss and which would be considered to be reasonably "in the vicinity". One hundred miles is not in the vicinity of some place but it could be interpreted that way.
I want to ensure that the legislation deals with the problem we are trying to come to grips with and we must be as specific as possible in what we do in this House before the Bill goes elsewhere. For that reason, I formally propose the improvement of the Bill by being specific about the words "in the vicinity". I consider three square miles would be reasonably in the vicinity of an airport, or a ferry port, or any other port of entry where drugs might be smuggled into this country.
I formally support the amendment.
Bearing in mind that the thrust of the Bill indicates that it is to strengthen the existing law in relation to illegal importation and considering the size of this country, I would have thought it would be better for the customs officers to be given full access to the entire territory of the State rather than as might be suggested, not just by the amendment but by the actual wording "in the vicinity", operating with one hand tied behind their backs. I, too, will be interested to hear the Minister's clarification.
I do not think I can bring myself to support this amendment because it would circumscribe in a very definite way the limits and powers of the Customs and Excise people. In reference to what Senator Mooney said, as reported at column 636 of the Official Report of the Committee Stage on Wednesday 21 October, the Minister spoke about the use of common sense in this provision and I support the Minister in that point of view. He felt that "in the vicinity" was allowing a Customs and Excise officer a certain latitude in pursuit of somebody importing drugs and that it would extend to the airport carpark, somebody leaving the carpark and so on, and that the limits on this were common sense. Therefore, I am happy about the phrase "in the vicinity" and I am convinced that the Minister's thinking on the matter is correct. I would be unhappy about any amendment which would seek to circumscribe to a limited area the powers of pursuit of the Customs and Excise people.
Whilst I understand and appreciate the sentiments of Senator Ferris, in this case from a customs officer's point of view "in the vicinity" is preferable to nominating a particular area and I agree with the points made by Senator Bulbulia.
I certainly understand why the amendment was put down because, as I recall it, in the earlier debate the Minister stressed that he was talking about the carpark of an airport and places in very close proximity to the port or airport. The idea here was not to restrict it, but to make it quite clear that it went beyond the immediate vicinity of the port or airport.
It is my understanding, but I am not absolutely certain, that there is a statutory instrument or a ministerial order which covers the area of ports around the coast to such an extent that, even though there is not a port every couple of miles or every three miles around the Irish coastline, by virtue of a statutory instrument which extends the power of Customs and Excise around particular ports it covers every mile of coastline around the country and that the Customs and Excise have authority around the whole coastline.
Since we discussed this we have had a proposed change in the 12 mile limit. I wonder would "in the vicinity" cover the new 12 mile limit. I raise this for two reasons. I believe that it does not at the moment. I believe it needs a ministerial order or statutory instrument to make sure that Customs and Excise can work within the 12 mile limit area. It should be pointed out to the House that it is all very well for us to say "in the vicinity" of ports but our customs officers, unlike any other customs officers in Western Europe who have a coastline to patrol, do not have any boats or any sea vessels and, therefore, there is a blank area there that we might need to look at. It might be that the powers of Customs and Excise as we see them being extended under this Act, in order to cover the vicinity of three miles should be extended to people like the Navy, or the Garda, or whoever can cover that area. It seems that this is another gap that will be left after this Act goes through, just one of many.
The draftsmen were probably employing the safety of generalities when they use the term "vicinity". In industry, for example, if a driver is unloading or delivering stuff, on his sheet will probably be "Town and Vicinity" which can take in the suburbs. Perhaps in the case of Dublin, all of North County Dublin would be considered "vicinity". This is the real problem — to get some definition of what is meant by the Minister when he talks about "vicinity". This is where the confusion may be. As a person who grew up in industry, if I were being sent out to do a delivery I would consider "vicinity" to be out in the Naul or out in Balbriggan. This is the type of confusion it creates. If we could get a definition of what exactly is meant by "vicinity" it would be much easier to deal with it.
This is something I have said frequently in the past: there seem to be extraordinary variations in standards in the quality of drafting of our legislation. Some words seem to be acceptable and other words seem to be unacceptable. I am quite certain that something as vague as the term "in the vicinity" would be entirely unacceptable in something like the Finance Bill and would keep half the lawyers and half the wealthiest in this country busy for years to come. In an area where there is a possibility of extensive litigation and extensive analysis, such sloppy drafting is never acceptable.
In an area like this people seem to feel that, because you leave it vague, it will never be defined. Sooner or later, that term will be defined in a court of law. It may not be defined in a way that suits the intent of this Bill. You cannot get away forever with vague meanings. Sooner or later a court of law will have to adjudicate on what "in the vicinity" means and a corpus of judgments will build up which will define the term anyway. I do not understand why we have to wait until — probably in the process some drug smugglers will get away because some court will rule that they were not "in the vicinity" in terms of what the court regards as a reasonable interpretation.
It would be far more sensible and it is far more sensible, both in terms of policy and in terms of drafting legislation, to say precisely what you mean when you write legislation. I do not think I could support the Labour Party amendment but I share fully the objective they have which is to insist that in legislation words should have a precise meaning which is understandable to the person who reads the Bill. We should not have to wait for a succession of judicial interpretations to get a precise meaning.
I appreciate very much the sincere and vigilant manner in which Senators are taking the different sections. I also appreciate that people want to be specific on the type of law proposed to be put through the House. Allowing powers of search, and I quote from the amendment "within three square miles" of any port, airport or the land frontier could not make geographical sense.
To give an example, Dublin Airport property contains approximately six square miles. If we are to talk about people coming into the actual airport terminal, they are three miles from the terminal and they are still three miles inside the frontier of the airport. If we take the land frontier to the south of the Border, it stretches officially for 20 miles southwards. If you could take a port on either the western seaboard or the eastern seaboard and a point 20 miles south from the frontier and 20 miles inland from the port, a person is still "in the vicinity" of both the port and the land frontier.
If we take another connotation a person is seen or observed by either a customs officer or a garda at a particular time in a particular place close to, or within reasonable distance of, an airport, or a seaport, or the land frontier, or whatever and maybe is not searched on that occasion but due to information which comes forward later, it may be necessary for the Garda and the customs officers collectively, or otherwise, with warrants to search him then. They must have the flexibility to be in a position to search those people irrespective of where they may be at that later date in view of the fact that those people were observed in a particular place "in the vicinity", if you so wish, of the airport, or the seaport, or the land frontier.
We must ensure that no constraints are placed on the officers in what they do. Powers going back to the 19th century already enable customs officers to carry out searches of travellers who have landed in the State and there is technically no geographical constraint on this power of search. This consideration has not led to abuse of the powers of the Customs Service because the spirit as well as the letter of the law has been observed over the decades by the customs officers.
Senator O'Toole raised a point regarding the territorial waters. The 1881 Act gives powers of search on ship, boat, on hovercraft — I think as a result of an amendment we passed on the last occasion — to the customs officers and the Department of Defence if they wish to board or the Garda if they wish to board. The Navy are under the control of the Department of Defence and they would be called upon to supply the necessary facilities to enable customs officers and gardaí to board any ship or boat, or whatever kind of vessel was within the territorial waters. We can also search persons if they jump off those vessels or disembark. They can also be searched. The 1881 Act gives that power. There are sufficient powers of search within the territorial waters. I regret that, in view of the points I have made, I must oppose the amendment on all these counts.
We have now at least by way of this amendment elicited from the Minister exactly what he wants in this area. It was because of the element of doubt in people's minds about what was required by the Minister that we wanted to give the fullest power within the whole jurisdiction. I take up the point Senator Mooney made. If the Bill had mentioned the words "within the jurisdiction" that would be another matter. I do not know what "the jurisdiction" means on the Minister's side of the House. Is it de facto jurisdiction or de jure jurisdiction? If that is the case——
We are always concerned with the constitutional power——
Right. Why not be specific in this section? We were talking about officers of the Customs and Excise. The Minister mentioned in part of the section the word "at," so we take it that at the point of entry officers of the Customs and Excise have powers. I felt that "in the vicinity" which as he mentioned, might be a car park or otherwise, was not definite enough. What you are actually saying is that if they are not caught at the point of entry, whichever way they enter, the Customs and Excise officer as in this section has the power to arrest or search them in any place at any time. If that is what we want to do then let us say it, but do not give the impression that it was confined——
The police would be involved of course at a later date.
Right. In another section members of the Customs and Excise and the Garda are being treated similarily for the purpose of this Act. This is fair enough, because you cannot have a Customs and Excise officer on duty in the central part of the country where there are no ports of entry; but under this definition that would still be "in the vicinity". This is fine as long as I know that you are talking about the jurisdiction. I deliberately made it three square miles so as to exclude parts of Dublin from Dublin Airport. If it was six square miles the Minister would not have been able to make the counter arguments which I wanted him to make. I welcome the fact that he has now clarified the position, that this section deals with the whole of Ireland. I am in no doubt about what I am talking about. I am talking about the whole of Ireland in accordance with the constitution of the Labour Party — not sections 2 and 3 of our own Constitution, which I respect, but the constitution of the Labour Party, which says that Ireland is an island surrounded by water. Any place we catch them now, under this section, we have the power to arrest and search them and so on, particularly in the control of drugs. I welcome that and I welcome the amendment.
Amendment, by leave, withdrawn.
May I ask——
An Leas-Chathaoirleach
No, the amendment is withdrawn.
In that case, may I draw attention to the fact that we do not have a quorum in the House.
Notice taken that 12 Senators were not present; House counted and 12 Senators being present,
An Leas-Chathaoirleach
Amendment No. 3 is next. Amendment No. 7 is consequential on amendment No. 3 and they may be discussed together.
I move amendment No. 3:
In page 4, lines 2 and 3, to delete "for such time as is reasonably necessary" and substitute "for such period as is authorised by this section".
I think the Minister knows what I am talking about.
I support the amendment.
I have always said that you cannot avoid precision in legislation. One may wish to avoid it and it might suit many people to have it. There can be huge arguments about what people call "mere technicalities" on which people often escape in court cases. "Mere technicalities" are what turn us into a society of laws — in other words, we regulate ourselves, with all the difficulties that implies, not by what we feel would be appropriate in a specific circumstance when it confronts us but by generally applicable legislation which is written down and which is understandable and which means precisely what we want it to mean. That makes it very difficult for us. Like everything else that is imprecise in legislation, these sections will sooner or later have to be interpreted. It would not necessarily be the fact that they will be interpreted in a way which suits the objectives in the legislation. Thankfully the Judiciary is independent, at least in the legislative sense if not in a class identity. Therefore it will interpret this legislation not according to what is said in this House — they may have reference to it — but according to what they believe to be correct. Therefore the more precise legislation is, the more we can be certain what we want is what will be achieved.
I presume we are taking both amendments together?
An Leas-Chathaoirleach
We are discussing both together.
I will be replying to both together. The purpose of the two amendments is to clearly define the period of time for which a person can be detained, which is placing a constraint on the Customs and Excise services and is not allowing the flexibility they would need. I have listened with interest to what the Senators have had to say. I have also noted the various difficulties which have been raised with the amendments and in regard to the drafting of these and other amendments.
The powers of search of travellers go back to 1876 and these powers have been exercised so as to detain the traveller only for so long as the search takes place. The chief purpose of section 2 is to assign to customs officers the identical powers of personal search assigned to the Garda in respect of the Misuse of Drugs Acts, 1977 to 1984. I am sure the Senators will have noticed that the language of section 2 mirrors the corresponding section of the Misuse of Drugs Act. We must be legislatively and constitutionally certain that these two Acts, which purport to do the same thing and which have been brought forward to do the same thing, will not be in conflict with each other in their language, verbiage or words that are used. The net effect of this section is not to alter the nature of the powers of search assigned customs officers since 1876 but rather to enable searches of meeters and greeters to be made. As the law now stands, only travellers or persons suspected of an exportation offence may be searched by the customs officers.
The question of the alteration of the nature of existing powers of search of travellers was considered in the course of the preparation of this Bill and has been further considered at my direct request by the Revenue Commissioners, the Departments of Health, Justice and Finance, with the advice of the Attorney General's office, and also in consultation with international customs services as a result of the thoughtful and concerned contributions of a large number of Senators during the Committee Stage. I am advised that the Revenue Commissioners are satisfied with their present search procedures of travellers and that the Department of Health see no need to alter the nature of the powers of search provided under the Misuse of Drugs Acts, 1977 to 1984.
I am not at all suggesting that Senators may be overstating the risk of stuffers and swallowers. I would venture the opinion that stuffing and swallowing is inherently highly dangerous to the individual concerned, not to mention unpleasant, and a means which is naturally limited in terms of the volume of drugs which can be smuggled. Hence, having regard to the location of the major drug producing regions — Colombia, Bolivia, the Golden Triangle and the Far East, for example — and the cost of travel, particularly air travel, the profitability of stuffing and swallowing is constrained in a way which more straightforward smuggling is not. Furthermore, random detention of travellers who may — and I want to emphasise the word "may"— be swallowers is hugely wasteful of customs resources, is unproductive and is greatly offensive to the travelling public.
A crucial factor in successful drug detection is intelligence gathering, both domestically and internationally. I am happy that where there are strong grounds to suspect smuggling by individual travellers the procedures at present operated by the customs service and the Garda are adequate and appropriate to the perceived scale of the problem. In all the circumstances, I would not at present wish to take the powers of detention set out in the amendment, which are incidentally not assigned to the Garda under the Misuse of Drugs Act, 1977 to 1984. I want to assure the House that I do not underestimate the threat posed by the availability of drugs, particularly hard drugs, on our streets. Let me further assure the House that, if extraordinary powers of detention are required to deal with the situation in the future, the Government will bring forward legislative proposals which will be adequate to the task.
In the United Kingdom I understand that both the customs and the police can hold suspected stuffers and swallowers for 96 hours. It is generally accepted that the minimum period of detention for a swallower is 48 hours. In the present circumstances the Government do not wish to assign the powers of detention to customs officers until such time as the available evidence and professional advice considers such a draconian incursion into the rights of travellers is fully justified.
I want to re-echo what I said: that we must allow flexibility to the customs officers to detain people for as long as is necessary. We plead that we must give them the flexibility, that we should not be specific, that we understand the difficulties they encounter, that we must rely on their judgment to detain people, be they travellers or meeters and greeters, for as long as is necessary. As far as we are concerned to be specific would be curtailing or constraining our officers in the execution of their duty. We would say that in comparison to the British system, where people can be detained for up to 96 hours which is a huge period of time, it would be a terrible invasion of travellers' privacy and rights. For these reasons I am confident that the laws we propose will be properly administered by the customs officers and that we should not constrain them. We must allow them flexibility and I regret that I must oppose the amendment.
Senator Ferris has the right of reply.
The source of these amendments, Nos. 3 and 7, would be the Criminal Justice Act, 1984. We wanted to give the Minister the power that he is giving himself in the section. He had left the wording in regard to time a little bit vague. If he were designating specific times under the section, then the Bill should say so. It is just a matter, as Senator Brendan Ryan said, of being as specific as possible, to make sure that the Act is not called into question at some future date by some smart Alec. We want to ensure that the right powers are there. The source that I was using for that suggested power is in the Criminal Justice Act, 1984. I accept that the Minister is satisfied on the advice available to him. The only way I can solicit that advice is by way of amendments because the advice is not available to me until I hear the Minister. I take it that he has sought advice and got it. I was using another piece of legislation, which was a strong piece of legislation, and I thought it was sufficient to justify the amendment. I accept what the Minister says and I will have to wait and see and hope for the best.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 4 and 5 are alternatives. Is there a proposer for amendment No. 4?
I move amendment No. 4:
In page 4, line 3, after "search" to insert ": provided that
(A) the officer conducting a search of a person being detained shall ensure, so far as practicable, that the person understands the reason for the search and that it is conducted with due respect for the person being searched;
(B) a person being detained shall not be searched by an officer or person (other than a designated medical practitioner) of the opposite sex;
(C) where a search of a person being detained involves removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no officer or person of the opposite sex shall be present unless either that person is a designated medical practitioner or the officer considers that the presence of that person is necessary by reason of the violent conduct of the person to be searched;
(D) a search of a person in custoday involving removal of underclothing shall be carried out by a designated medical practitioner.".
I think the amendment is not unreasonable and I sincerely hope that the Minister will respond accordingly. I have been forthcoming on other amendments and the arguments the Minister made against them. I accepted his opinion and advice, and I hope that he will accept these particular amendments, those in the names of the Labour Party Senators and Senator Bulbulia and Senator Manning providing that, in conducting a search of a person being detained, the officer shall ensure that as far as is practicable the person understands the reason for the search and that it is conducted with due respect for the person being searched. At all times in legislation we must have regard for the rights of innocent people. We take it that they are innocent until we prove that they are guilty. In the area of searching people if the Customs and Excise officers are to be as diligent as this House wants them to be, we also want them to ensure that the vast majority of people coming in, apart from those that the officers have information on, are clean and innocent. If a Customs and Excise officer had any grounds to suspect otherwise, naturally we want to make sure that the person would be subjected to the proper search. I want the Minister by agreeing to this amendment to have regard to the fact that people have certain rights and rights of privacy as well as everything else. Subparagraph (A) of the amendment suggests that in the searching there would be due respect for the person. Subparagraph (B) provides that a person being detained shall not be searched by an officer or person, other than a designated medical practitioner, of the opposite sex. We are now talking about bringing in drugs concealed in private parts of the body. But people would be entitled to some common decency in the conduct of the search. It is hoped that the search would be successful but I have to have regard to the fact that in the area of common decency at least they would be entitled to examination by somebody not of the opposite sex and certainly by a medical practitioner.
Subparagraph (C) says:
Where a search of a person being detained involves removal of clothing, other than headgear or a coat, jacket, gloves or similar article of clothing, no officer or person of the opposite sex shall be present unless either that person is a designated medical practitioner or the officer considers that the presence of that person is necessary by reason to the violent conduct of the person to be searched.
I think that section speaks for itself.
Subparagraph (D) also refers to clothing, particularly underclothing, and provides that removal of underclothing be carried out by a designated medical practitioner. All these subsections I am suggesting here after the word "search" are designed to have some regard for the individual. I am particularly worried about innocent individuals who would be legitimately subjected to search in the course of the officer's duty but may not be guilty. I hope that the Minister in his reply to this amendment would understand the reason I put it forward. I would hope he would accept the reasonableness of the amendments and that it would be accepted that there would be common decency and courtesy shown by officers of the Customs and Excise at the points of entry whether port or airport. I am just asking for special facilities and specially designated people. I do not think that is unreasonable and I hope the House will agree.
Acting Chairman
Amendments Nos. 4 and 5 are being discussed together.
I was not aware that you were going to take amendments Nos. 4 and 5 together.
Acting Chairman
I announced that amendments Nos. 4 and 5 are alternatives and amendment No. 5 can only be pressed if amendment No. 4 is withdrawn. They are being discussed together.
I am not objecting, Sir. The general thrust of both amendments is very vital to be included in the Bill for a number of reasons. We have discussed this time and time again. The objective of the Bill has been to put a stop to the importation of drugs, in particular, and how we go about this is important. One thing that has been forgotten is the position of the actual customs officer on the ground. The customs officer on the ground can only take a body search so far. They do not have the expertise to search beyond a certain level. It seems to me that one thing is absolutely certain: the question of somebody of the opposite sex not being present for close body searches is absolutely vital unless that person happens to be a medical practitioner.
The customs officers say to me that they do not have the expertise for close body search, particularly in trying to identify people who have stuffed contraband into their bodies. It seems to me that if that is the case, it is a job for a medical officer. If it is a job for a medical officer the Bill must contain some reference as how a medical officer would be designated, how a medical officer would be reached and how, indeed, the person would be detained until such time as the medical officer arrived.
From the point of view of the customs officers they would certainly prefer if this kind of search would be done and that it should not be done by themselves because they would not feel competent or ready to partake in such a form of search. It is all very well to make the point that when somebody is fairly closely suspected, when there is hard information, that they may well have stuff in their body, that they can be held for a certain period. But there is always the case where the customs officer might have a certain suspicion and would not feel that that suspicion would allow him to hold a person for a number of days but at the same time would feel that there was enough there to have the person searched. That searching is the general area talked about here. The search can only be conducted on certain very close conditions.
The conditions we are talking about here are very reasonable: that there should be a medical officer and that where the removal of clothing is involved there should not be present a person of the opposite sex — in other words that there should be a back-up and support for the customs officer, that life should be made more difficult for the criminal and that persons' rights and dignity would be maintained and protected.
In support of amendment No. 5, and indeed No. 4, I would like to say that for me this is a very contentious area and one that we spent a lot of time speaking about on Second Stage and, indeed, on Committee Stage we had an extended debate on it.
The Minister, in justifying his use of the phrase "with reasonable cause" in the first amendment we considered today, cited that he felt that the words used in the legislation should be, and his phrase was "in tandem with the language used in the Misuse of Drugs Act" At a later point in our discussions this morning he talked about language mirroring the use of language in other legislation, in the Misuse of Drugs Act. This insertion which is proposed in this amendment has as its source the regulations under the Criminal Justice Act, 1984 dealing with the treatment of persons in custody in Garda stations. The logic of what I am saying in the light of what the Minister said about language mirroring the language in the Misuse of Drugs Act, is the same as that used by the Minister in that this insertion has as its source the regulations under the Criminal Justice Act. Therefore, it is a perfectly reasonable and logical wish to see this measure inserted into the legislation to give protection to anybody challenged by customs officers and, indeed, to afford a framework of protection for the Customs and Excise people who are put into this situation by virtue of the powers we are giving them in this legislation.
Subparagraph (A) states:
The officer conducting a search of a person being detained shall ensure, so far as practicable, that the person understands the reason for the search...
It is not inconceivable that the person being detained would be, in fact, a drug addict and might indeed be under the influence of a particular substance. As such, his powers of understanding of what was happening to him would be limited. For that reason it is necessary to insert this provision to ensure that the person would understand, given the context of the legislation and the subject we are talking about and the difficulties which customs officers would have. That is a very valid reason for ensuring that that type of insertion was made as a consequence of this amendment. It also refers to the fact that the search should be conducted with due respect for the person being searched. I have the height of praise for customs officers and I have made my views on that very clear in the course of the debate on Second Stage and Committee Stage. Again, we are talking about human nature, we are talking about the weaknesses of human nature and we are talking about certain weaknesses which are worldwide and which crop up from time to time, particularly among uniformed people in authority. I have no reason to feel that Irish Customs and Excise officers are totally immune from such human weaknesses. Therefore, it is important to insert that the searches should be conducted with due respect for the person being searched.
That is a decent, humane and civilised attitude to adopt in the course of the search. Our legislation should reflect decent, humane and civilised attitudes of one human being to another in what is a very fraught, tense and difficult situation. We can only improve our legislation if we insert that type of provision. Again, I would repeat that the source of this insertion is the regulations under the Criminal Justice Act, 1984. As such, given the logic of that allied to what the Minister said in his justification for retaining his wording in the first amendment which we discussed on Report Stage, I am making a very strong argument in favour of the insertion of this particular provision.
Subparagraph (B) states:
A person being detained shall not be searched by an officer or person, other than a designated medical practitioner, of the opposite sex.
Again, that to me is civilised, decent, correct and proper. In an area of search it is appropriate that that type of provision should be in the legislation. For that reason I am pressing this amendment.
We talked very factually and openly about the way in which stuffers and swallowers bring in drugs. We also talked about the necessity to examine body orifices and that cannot be done without the presence of a medical practitioner and, indeed, any search of the person should not have an officer or person of the opposite sex to the person being detained involved. If this insertion is not accepted by the Minister, this legislation does not reflect the reality of the situation on the ground, as expanded on in the Committee on Crime, Lawlessness and Vandalism Report, and, indeed, by all search and observation which we brought to the Minister's attention which highlights this particular method of drug importation.
The Minister in reply to another amendment talked about the limited amount of drugs being brought in by such stuffers and swallowers and the fact that it was hardly worth the candle in that it was unpleasant and distasteful and that the quantities involved would not be great. Since I have not got the Minister's reply in front of me I am just going from memory. He seemed to minimise that aspect of drug importation and seemed to say that the scarce resources of the Customs and Excise people could not be deployed in a lengthy follow-up of that particular form of importation.
If the legislation is reflecting reality at all, it must take cognisance of that method of importation. We have got to remember that we are dealing with people who are prepared to put up with the distasteful, unaesthetic and unpleasant methods involved in stuffing and swalling and who do not give a damn, in fact. They must be gone after with the full rigours of the law within a framework such as is part of this subsection. I am really pressing that the Minister should take on board this amendment. I cannot understand how if he says, as he did state, that he had consultations with the Minister for Health, the Minister for Health did not see the absolute sanity and wholesomeness, decency and necessity of this amendment. To me it is incontrovertible. I cannot understand why it is not being accepted.
Subparagraph (C) talks about the search of the person being detained involving removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no officer or person of the opposite sex shall be present unless either that person is a doctor or the officer considers that the presence of that person is necessary by reason of the violent conduct of the person to be searched. I do not think there is need for me to dwell on that as it is self-explanatory.
Subparagraph (d) talks about the role of a designated medical practitioner. To my way of thinking you cannot have the kind of body search that is necessary without having a panel of designated medical practitioners on stand-by in order to implement this legislation effectively and within an ethical framework. Again, I cannot understand why the Minister, who seemed to take on board our arguments when we made them on Committee Stage and, indeed, on Second Stage, has not come forward himself with an amendment which reflects the legitimate concerns. He admits that they are legitimate and sincere and have been made in good faith by Senators.
I waited every day coming up to this legislation to see the Minister's amendment. I was sure and confident — indeed, that is why I supported the recommittal motion — that the Minister would bring forward an amendment similar to this one which has been brought in by the Labour Party and Fine Gael. I am quite honestly at a loss to understand why, if he has had the detailed consultations which he tells us he had, such an amendment was not brought in by the Minister. It would give the Bill teeth. It would reflect reality and it would deal with the very real practical arguments which Senators brought forward. Certainly on behalf of Fine Gael I will be pressing this amendment.
I think I heard the Minister say that one of the reasons he did not feel it necessary to introduce an amendment similar to this was that those who are described as the stuffers and swallowers would not be in a position to import large quantities of drugs. He mentioned the cost of air fares and, therefore, implied that the risk involved relative to the expected gain would be so insignificant that it would not be worth people's while. I think he said the Revenue Commissioners and various other agencies confirmed that to him.
I left the House and checked from a source that for various reasons I shall not quote. The Minister can argue with me and if he wishes I will pass him a note and tell him who to ask. The officially accepted figure for the street sale of heroin is £300 per gramme. That works out at about £30,000 for 100 grammes. One hundred grammes is approximately three ounces. Is the Minister seriously suggesting that it is impossible to conceal three ounces of heroin in any of the orifices of the body? Is he seriously suggesting that the possibility of £30,000 worth of sales of heroin will be deterred by the cost of an air fare from either South America or the Golden Triangle? I know the Minister said there would not be large quantities but the precise truth about drugs is that you do not need large quantities to make large amounts of money when you can sell three ounces for £30,000. That is precisely why this most distasteful procedure, which flies in the face of all my own civil libertarian instincts and those of the Labour Party — I know Senator Bulbulia's record — must be confronted.
I find myself in an astonishing position that I have to ask again and again why a procedure cannot be accepted, which is quite clearly necessary, given as Senator O'Toole quite rightly said, that more people will die from the consequences of the inadequacies of legislation like this than died at Enniskillen on Sunday. This is a threat to the lives of innocent people, the fact that people use these methods. We tolerate searches of this kind where there are likely to be breaches of security. I find it astonishing that we will not tolerate it in this case and I find it astonishing that a Government Minister would be so poorly advised by his advisers — the Minister bears no culpability in this; it is those who advised him — that that scale of profit from stuffing and swallowing was insufficient to promote it on a large scale. Those who gave him that advice, whether it be his ministerial colleagues or who else I do not know, but the realities are that three ounces of heroin will sell on the street for £30,000 and that is big bucks. Therefore, because the profits are so high and because the human consequences are so horrific, it is our duty to confront the problem and not walk away from it simply because it is distasteful or difficult. That is why I support these amendments.
I have listened with great interest to the sincere contributions of the four Senators, Ferris, O'Toole, Bulbulia and Ryan. I recognise their very sincere passion to ensure that the maximum rigours of the law are applied and that the most effective wording possible is put into the Bill. The Minister and his advisers seem to be castigated for not bringing forward amendments. I personally feel, even though it is the prerogative of the Minister or the Government if they so wish to put forward amendments, it is the duty of the State or the duty of Government to bring forward a Bill and democracy should be allowed take over. I acknowledge that in this House we have people who are very committed, dedicated and sincere and they have brought forward amendments. I am prepared to debate and discuss them and accept them if I can and reject others if I have to. I think that is good, broad democracy, good, broad dialogue and debate in the interests of the people and I hope that in the end we can get the best consensus possible to deal with this terrible drug problem.
First, subparagraphs (B) and (C) of amendment No. 4 — I am taking amendments Nos. 4 and 5 together — are incorporated in existing customs guidelines and I would be the first to propose such legislation if I thought it was necessary. I have considered what Senators have said and I am giving it further thought as I speak to the House. The stipulation in subparagraph (B) is already satisfactorily covered by section 185 of the Customs (Consolidation) Act, 1976, and section 2 of the Customs (Amendment) Act, 1942, which provide that a female may only be searched by an officer of the same sex. As regards subparagraph (D), it is not either Garda or customs service practice to carry out intrusive body searches, so the question of a medical practitioner being present does not arise. We do not propose it at any time in this Bill and I will not be proposing it to the House. Searches involving the removal of underclothing already take place under the guidelines and legislation already referred to. I might mention that there was an additional safeguard contained in the 1876 Act which provides in section 185 that, before any person is searched, he or she can ask to be taken before a justice, or before a senior official of customs who must determine whether reasonable cause for the search exists. I want to emphasise again that we will not undertake intrusive body searches. Therefore, the necessity for a medical practitioner does not arise.
Senator Bulbulia, Senator Ferris, Senator O'Toole and Senator Ryan made the point that a person must be told clearly why the search is taking place. We respect that and we want to adhere to that. It will be adhered to. All people have to be told under law why they are being searched, arrested or whatever. That is always the case in all facets of law and in the implementation of law.
Senator Bulbulia talked about a person understanding the reasons for the search. She talked about persons who may have taken drugs or may be carrying drugs on their person, particularly in their body, and the effect that they would have. If Customs and Excise or the Garda found a person in any place, a port, inland, or whatever in that condition, medical treatment would be required preferably at a proper drug centre. If these people were in that condition they would not understand the reasons for the search.
I want to assure Senator Ryan that we are happy with the existing powers pertaining to detention. I have given this matter the utmost consideration. I compliment the people who put down these amendments. I am happy to say to the House that I am prepared to accept subparagraph (A) of amendment No. 4, subparagraph (B) of amendment No. 4 to exclude the words inside the brackets "other than a designated medical practitioner", subparagraph (C) of amendment No. 4 in its entirety. I cannot at all accept subparagraph (D). I hope I have gone a long way to meeting the wishes and demands of Senators and to enshrining in the Bill the constrictions and constraints they want placed and the adherence requested. I ask Senator Ferris to move that amendment again to exclude that subparagraph which I cannot accept. I presume that acceptance of those parts of amendment No. 4 by me would be sufficient.
I thank the Minister for his forthcoming response to what was a very considered amendment. As Senator Bulbulia said, this amendment arises from existing regulations under the Criminal Justice Act, 1984, and they are precisely the words used in the regulations or guidelines which the Minister laid down. I welcome the fact that the Minister has conceded to the principle of this amendment in subparagraphs (A), (B) and (C). In amendment No. 4 (D) the Minister is saying that subparagraph (D) would not come into play at all because it is not the Minister's intention to carry out body searches by the removal of underclothing. That is exactly how it came across to me. There would not be a need for a medical practitioner because the Minister did not intend to carry out this kind of searching. That would concern us because we want that kind of searching to take place if necessary under the actual proper regulation. If it happened, we would like it to come into play.
Because we are on Report Stage I want clarification on what the Minister said about subparagraph (D). My interpretation was that he would not be proceeding with that type of searching based on his original comments that a lot of drugs are not brought in by stuffers and swallowers. All the advice available to us is that it is believed by many people that a considerable amount of stuff can and could be brought in in that way. Because of that factor we want to ensure that that source of illicit importation is not used. If a search is required under this Act we want to ensure that it is not brought in in this way; then, and only then, would subparagraph (D) come into play. Please correct me if I am wrong — and I hope I am wrong in my interpretation of what the Minister said — because I want to ensure that every source of illicit importation will be tracked down by Customs and Excise, including this obnoxious way of doing it, which is used in a very widespread way by people in other countries and I am quite sure here as well.
I know it is a risky way to do it and the people who are using this method are running the risk of losing their life. The consequences for them, materially and financially, as outlined in graphic detail by Senator Ryan are an indication that we are worried that this method is used. We want to ensure that we can come to grips with it and do it properly. Please forgive me if I misrepresented what the Minister said but I am worried that he now feels he will not be doing these things at an airport or on a ship.
In response to Senator Ferris's request subparagraph (C) of amendment No. 4 covers the fact that only an officer or a person of the opposite sex can search another person. We have taken everything into account. We do not propose to have intrusive body searches, that is, searches of the orifices of the body. At no stage in Irish legislation, at no stage in the implementation or the administration of law in this country by any arm of the State, the Garda, Army, customs officers or any other officers, has this type of search been carried out.
Under the Constitution we recognise we must protect the rights of individuals and that they are entitled to their integrity, the integrity of the human person. We do not want to be in conflict with this. We also want to be consistent with the main thrust of Irish law as it stands today and the implementation of the laws of the land by various agencies of Government.
We do not intend to have intrusive body searches. Therefore there will be no necessity for a designated medical practitioner. A simple example of an inspection and search by a female customs officer of a female person would be that the outer garments would be removed and, if necessary, all underclothing would be removed. Only by visual inspection would detection be done. There would be no more than that. That is the position as it pertains in Irish law today. We want to be consistent in that, both in the thrust of the law and in the recognition of the constitutional rights of the individual. Therefore I regret that I cannot accept subparagraph (D). I have outlined as clearly as I can the exact position as it pertains at present in Irish law and as we envisage after the implementation and passage of this Bill.
Do I take it that subparagraphs (B) and (D) will be put separately to the House?
Acting Chairman
The Minister has proposed an amendment to the amendment.
Government Amendment to Amendment No. 4:
In subparagraph B to delete "(other than a designated medical practitioner)"
and to delete subparagraph D and substitute:
(D) a search of a person may be carried out by a designated medical practitioner".
I understand what the Chair is saying. We discussed amendments Nos. 4 and 5 together and one excludes the other as was rightly pointed out at the beginning. May I take it that the Minister's amendment is now being put and that there are parts of amendment No. 5 which are not being put? Is amendment No. 5 still liable to be discussed further?
Acting Chairman
The question is that the amendment to amendment No. 4 be made.
May I ask for a ruling please? Since I am the proposer of amendment No. 5 I did not have an opportunity to reply. I take it that although the two amendments were discussed together I still have an opportunity to reply.
Acting Chairman
Sorry Senator, the position is that where two or more amendments are discussed together the right of reply rests with the mover of the first amendment. Is the amendment to amendment No. 4 agreed?
I want clarification that the Minister has now amended my amendment, if his amendment is carried. I welcome the fact that the Minister has agreed to the majority of my amendments and I thank him. Whichever way the vote goes, those amendments will be incorporated in the legislation because he is accepting them. The only thing that worries me is that he is excluding body searches from the duties of Customs and Excise officers. We are of the opinion that drugs are getting in that way. We welcome what the Minister is doing but he is not doing enough.
I want to re-emphasise and restate that intrusive body searches are not practised by any agency of the State. It has never been done and we do not propose to do it.
Acting Chairman
The question is that the amendment——
I understood that such body searches took place in prisons.
Acting Chairman
I must put the question——
We must base our decisions on the basis of fact and on the information that is available to us.
Acting Chairman
I am going by Standing Orders.
As far as I am concerned I am dealing with a customs and excise Bill. I have the most up to date and expert advice available to me from all sections of the State and, indeed, outside the State. We are not dealing with a Department of Justice Bill and if what Senator O'Toole alleges is not done I suggest that he should proceed to investigate it. I know nothing of it and I have been absolutely assured that our system does not do this and does not allow this. I want to stick by that system.
Acting Chairman
I must put the question.
On a point of order, I would like an explanation. I am happy that subparagraphs (A), (B) and (C) with minor modification have been accepted by the Minister but I oppose subparagraph (D). As I see it this legislation, without the bodily search aspect, is making this country a haven for stuffers and swallowers. How can I support subparagraphs (A), (B) and (C) and vote against subparagraph (D) if it is being taken as a whole?
We want subparagraph (D) included.
Yes.
Acting Chairman
The question is that the amendment to amendment No. 4 be made.
I have to say níl because it excludes subparagraph (D) and I feel it should be included. I accept the other amendments to my amendment.
Will we be able to vote on amendment No. 5? That is the point at issue.
Acting Chairman
No.
You made it quite clear to us at the beginning that amendments Nos. 4 and 5 were being discussed together and that one excluded the other.
That made perfect sense at the time but when one is now amended we must also be able to look at amendment No. 5 and dispose of this business quickly.
I understand that if the Minister's amendment to amendment No. 4 is carried, No. 5 will fall in total. For that reason subparagraph (D) would be excluded. That is the only reason I am opposing the Minister's methods of accepting my amendment because he has not accepted it in total. I want to thank the Minister for having come this far but I feel he should have gone the whole hog. Even if we do not use the system it would be a very important section to have. In order to use that section in the future the Minister will need to bring another Bill before the House if we are to be effective.
Acting Chairman
Just to clarify the position. If Amendment No. 4, as amended, is accepted amendment No. 5 cannot be moved. My advice is that amendment No. 5 cannot be moved as it is an alternative. The question before the House is: is the amendment to amendment No. 4 agreed?
With your indulgence, Sir, it is important that we are clear on this. The fact is that if the Minister's amendment to the amendment is defeated then the full section stands the way it is at present, unamended.
Acting Chairman
Amendment No. 4 as it is will then be put to the House.
I wish to reconsider what Senator Ferris said and I wish to respond if possible. Senator O'Toole was out at the time.
I was listening.
The Senator is very vigilant.
A Senator
That is our problem.
I enjoyed the contributions made. It shows the interest there is in this legislation and indeed in all legislation.
I thank the Minister.
As a result of what the Acting Chairman said and adhering to the rules of the House, the only offer I could make to amend any of the two amendments was on amendment No. 4 as that was the first amendment moved. I could not offer anything on amendment No. 5 until we disposed of amendment No. 4. But in view of what Senator Ferris has said and in deference to the commitment and sincerity of requests which were made consistently on Committee Stage, and again today on Report Stage, I am prepared to further consider subparagraph (D) provided the Senators accept a clear amendment which would read as follows:
A search of a person in custody may be carried out by a designated medical practitioner.
I want to be clear on this. The purpose of the amendment would be that if the customs officers feel it is necessary to have a search of the orifices of the body they have the flexibility to call a medical practitioner.
Exactly, then and only then.
We do not want a situation again where people can say: "My clothes were removed and there was no doctor present." I want to be quite clear that the discretion of the custom officer, or officers, shall be such that if after the removal of all garments they feel it is necessary to have an inspection of the orifices of the body they may call a medical doctor to do so. I am putting it to Senator Ferris to accept the amendment. I propose without voting if at all possible.
Acting Chairman
Could I clarify the situation?
There is a new amendment to the amendment.
Acting Chairman
There is a further amendment to amendment No. 4, sub-paragraph (D). Subparagraph (D) will then read:
A search of a person in custody may be carried out by a designated medical practitioner.
I am putting the amendment——
The other amendment is made as well.
Acting Chairman
The other amendment is made.
It is an amendment to the amendment.
Acting Chairman
I must——
If it was possible to applaud in the Seanad for a confession by a Minister I would applaud. I thank the Minister. He has met the wishes of this side of the House in total and in the way it should be done.
I want to be associated with that. He has been more than reasonable. He deserves our congratulations and he is welcome to them.
I would like to express my warm appreciation to the Minister for meeting us so fully on this measure and for taking on board so much of what was finally argued and presented to him. We have seen at work here the process of legislation, a meeting of minds and a reasonable and conciliatory and intelligent response from the Minister.
Very briefly, I would like to congratulate the Minister for meeting the wishes of this House. There are very sincere people on the other side who went out of their way obviously to study this Bill in great depth. I was impressed by the contributions by all Members but in particular by Senator Bulbulia who I felt was extremely sincere in expressing her case. The Minister, I know, had problems too. There were guidelines and other Acts which he felt were sufficient but he has now gone 99 per cent of the way to accommodate the wishes of all the Members of this House.
Acting Chairman
I must conclude.
It is now in the legislation and certainly I am glad of that. I thank the Minister again.
Perhaps the Acting Chairman would re-read sub-paragraph (D) so that is will be quite clear.
Acting Chairman
The full amendment to the amendment No. 4 is to delete "(other than a designated medical practitioner)" in subparagraph (B) and to amend subparagraph (D) to read: "a search of a person in custody may be carried out by a designated medical practitioner."
There are two words I do not want inserted. The words are "in custody".
I welcome that amendment and congratulate the Minister on bringing it in. It strengthens the Bill immeasurably; it makes a complete difference. In my discussions with the customs officers, they asked time and again to have included in the Bill that the person may be examined by a medical officer. The words struck are exactly right because none of us wants it to be a requirement; none of us wants it to be a an inhibition. I congratulate the Minister and I feel that this has been a good morning's work.
Acting Chairman
I must now put the question. Is the amendment to amendment No. 4 agreed?
Amendment to amendment No. 4 agreed to.
Amendment No. 4, as amended, agreed to.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 4, between lines 19 and 20, to insert a new subsection as follows:
"(2) In the case of a complaint by any person arising from the operation of this section the Garda Síochána (Complaints) Act, 1986 shall apply to an officer of Customs and Excise as if he were a member of the Garda Síochána within the meaning of that Act and the provisions of that Act shall be construed accordingly".
The Minister will remember that on Second Stage I wanted to ensure that the method of dealing with complaints against members of the security forces would be consistent. I did not want Garda officers to be disadvantaged in that members of Customs and Excise would not be subjected to the same critical analysis for all their actions. Recently, unfortunately, people have been quick to criticise members of the Garda Síochána and many of us have used every forum to defend them and compliment them on some of the acts they have been performing in very difficult circumstances. We must have regard to the fact that many members of the Garda Síochána feel constrained by the Garda Síochána (Complaints) Act. They are extremely careful not to do anything which could lead to either a frivilous complaint or any other type of complaint against them. In the performance of their duties they have this Act in the back of their minds. Many of us were involved in enacting that Act and passed various comments on it.
I want to make sure that the first line of defence at the port of entry is the Customs and Excise officer, they should also feel constrained by the complaints Act, not because I want a softly softly approach to anybody found guilty of the importation of drugs but because I do not want one section of our security forces at a disadvantage by being subject to different regulations. I hope there is no reason why the Minister cannot accept this amendment to remove any ambiguity there might be in the minds of the members of the Garda Síochána.
I support that.
I have a difficulty with this amendment. I certainly believe in accountability and that people should be answerable and responsible for their actions. I have not had time to study it but as far as I am aware gardaí had some input and were consulted about the setting up of the complaints board to investigate complaints against the Garda. The customs officers had no such contact and I would be slow to set up a structure like this, to which a group would be answerable, if they had not consulted in the first place.
State workers should be cleaner than clean and should be absolutely responsible and accountable for their actions. That is not my reason for objecting but in such circumstances there should be clear consultation with the group. We cannot superimpose the problems or the accountability of one group on another body just because it happens to be there. I do not feel I can support this amendment.
It seems to me that in many ways the Senator is equating customs officers with gardaí in some respects. That would obviously be incorrect. Perhaps the Minister, when replying, will comment on that. That would be my reading of the amendment.
I support this amendment and, indeed, my name is appended to it. It is in line with my thinking of civil liberties and protection of the individual when faced with the institutions and powers of the State. It is very important that a member of the public should have redress and should have a forum to direct his complaint or grievance to it he is apprehended under this legislation. If we found it necessary in the context of the criminal justice Bill to establish a Garda Síochána Complaints Tribunal, when we are giving the extended powers to the Customs and Excise people, and indeed they have elaborate and extensive powers as matters stand, it is only reasonable to put in a concomitant safeguard for the members of the general public so that they can feel they have an area, if they require redress against an action of the Customs and Excise people. I support this amendment.
Having listened to Senator O'Toole, I am quite clear in my own mind with regard to the question of the principle of redress. I also feel very strong about the idea of prior consultation and discussion, not necessarily agreement. In that context if the Minister could find it possible to provide either by ministerial order, or something else, that something could be done in the matter of the right of redress for people who might be detained by customs officers at any particular time, or, if he could indicate to us any section of the Bill that takes care of that, that would solve the problem; but I do not think there is any such section in the Bill. I have mixed feelings about it. I believe there should be the right of redress and, as I said earlier, I feel very strongly that people should be consulted before anything is implemented that would have an adverse effect on them. Could the Minister give some indication that he would make some arrangement, either by ministerial order or some other way, so that people who may be detained could have the right of redress?
I appreciate the concern and sincerity of Senators that there should be adequate redress afforded to the aggrieved traveller as well as the meeter and the greeter. The Garda have more extensive powers than customs officers. They perform a different job, which is much more complex and much more wide ranging. Customs officers have specific duties to perform in very specific areas of operation within our country. Therefore, the operation of those powers by the Garda is naturally subject to more checks. Customs officers have had powers of search and detention for over a century and they have used those powers responsibly. The effect of this legislation is to extend these powers to cover meeters and greeters and, as such, is not a significant departure from the present position.
People can make complaints to the Garda Complaints Board because the range of duties and powers vested in the Garda Síochána under several Acts is much more wide ranging and much broader than that envisaged or that given to the Customs and Excise section of the State over the years, or indeed than that we propose now. However, any person who has a complaint against an officer of the Customs and Excise can complain, first, to a superior officer; secondly, to the Revenue Commissioners; thirdly, to the Ombudsman and, fourthly, to the courts. I am satisfied that these safeguards are adequate and require no amendment at this stage. I want to assure the House that if this situation should change the Government will move quickly to tighten up and extend the safeguards as necessary.
The amendment as proposed is also technically deficient in that it would not be possible to simply treat a customs officer as a member of the Garda Síochána for the purposes of applying the Garda Síochána (Complaints) Act, 1986. It would require a much more complex and comprehensive amendment to the Garda Síochána (Complaints) Act, 1986, and possibly to other legislation if we were to extend the provisions of the 1986 Act to customs officers. Therefore, I regret I have to oppose this amendment.
The Minister has gone down some way of the road to met us. I take the point made by Senator O'Toole that there was no way we wanted to impose this section without discussion with the Customs and Excise officers, because that is what we did with the Garda Síochána. When we brought in the Bill we gave an assurancce that it would not come into operation until the Garda Complaints Board Act was also passed. Now that the Minister has defined the difference between the extended role of the Customs and Excise officer and the Garda Síochána, the Garda might be satisfied that there is a fundamental difference. They felt disadvantaged that in certain areas, there was a similarity about their role and their function, and while one area of the security forces was subjected to a critical analysis under the complaints legislation another area was not. The Minister might lay down a set of guidelines or regulations for officers in the Customs and Excise force under which they would act.
Guidelines already exist, but we could update them.
If a code of conduct were laid down we would be satisfied. If the Government feel at any time that the Minister should act quicker and more strongly than is suggested in my amendment, I would accept that, and that will be on the record of the House. The Minister has said that regulations already exist, but if he could set out a code of conduct I would be satisfied and he would have met what I am trying to deal with in my amendment. I will give the Minister's assurance to the members of the Garda Síochána with whom I have already had discussions that there is a distinct difference between their role and function and that of the Customs and Excise officers.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
An Leas-Chathaoirleach
Amendments Nos. 8, 9 and 10 are related and may be discussed together.
I move amendment No. 8:
In page 4, lines 22 and 23, to delete "or to such other place as may be specified by the officer".
This amendment was tabled for obvious reasons, which can be seen from reading the full section as amended.
In amendment No. 9 we are trying to insert after the word "Office" the words "provided that a person shall be detained only in an Office which has facilities to enable him to be treated in accordance with the provisions of this section and with due and proper respect for his person and right to privacy". That would be consequential on our agreement to the Minister's amendment to our amendments. Now that the Minister has met us on the other amendments, it is not unreasonable to have a proper place set aside at the area of importation, or of the breaking of the law, where a proper examination in accordance with the Customs and Excise officer's opinion could be carried out. That is the substance of what I am trying to do. Now that the Minister has conceded the other amendments, he will have no problem conceding these. It is probably the intention to have proper facilities available, or perhaps they already exist, but this examination should not be carried out at the passport counter or in the area where baggage is claimed. I want that to be done properly I am sure the Customs and Excise officer will have a proper office in which to talk to people, to examine them and to carry out whatever he considers necessary in accordance with the Act.
I support this amendment. I am confident the Minister will yield on these amendments because they are about standards — standards of decency in a person to person situation. We know that at many of our ports and airports facilities are not necessarily all that we desire and there is a danger that in some very small out of the way areas where a person is apprehended, such a meeting between a customs officer and a suspect would take place in a sort of shack out the back which might be insanitary, draughty, miserable and totally inadequate. It is to bring about a proper standard that we propose amendment No. 9.
In relation to the Minister's reference to language in this legislation mirroring language in other legislation, in amendment No. 9 the source of the insertion is similar to the regulations under the Criminal Justice Act, 1984, dealing with the treatment of persons in custody in a Garda station. To my way of thinking, it is entirely logical that the treatment of persons by Customs and Excise officers should be identical to that meted out to people in custody in a Garda station. The standards and the facilities should be appropriate to the situation. That is why I support amendment No. 8, but to my way of thinking, it is a bit too loosely worded. The insertion in amendment No. 9 sets out the sort of standards and parameters within which such a meeting should take place. Accordingly, I support these three amendments which have been discussed together.
I listened to the two Senators and I agree with everything they said but I am not convinced that any of the amendments meets the point they make. The phrase "to such other place" is loose. If a traveller is detained at an airport on suspicion of carrying drugs or whatever, it might be in his best interests not to be taken as far as the customs office. I was looking very closely at this when I was researching the legislation. I have before me the British Police and Criminal Evidence Act, 1984, and the codes of practice which have also been applied to the customs officers in Britain. I will read two short sections. First, regarding the conduct of a search:
Every reasonable effort must be made to reduce to the minimum the embarrassment the person being searched may experience.
That is the first point being put by the proposer and seconder and I do not think the Minister or anybody else would disagree with that. The British Act goes on to say that searches in public must be restricted to a superficial examination and that if there is anything more than the taking off of a coat or a jacket or gloves, even if it is simply taking off head gear, that must take place in private. I would like that to be taken on board in the Bill. I think this amendment intends that a person's privacy will be respected and that any traveller, or any meeter or greeter, need not be embarrassed more than is absolutely necessary — it should not be necessary to embarrass them at all in public. I agree with that thinking. Could the Minister tell us what would happen in an airport, where the searches would take place — we are not talking about the full medical examination but a close body search — and how they would take place? The idea of a search in a public place, even if the public place is empty, would be totally unacceptable to me. I agree with the spirit of the amendment, but I do not think the amendment as phrased meets the point.
I will respond to the three amendments together. I appreciate the complex points which have been made by the various Senators. In the majority of cases, a suspect would be brought to a customs office, but in certain circumstances it may be deemed desirable to bring such a person to a Garda station, or perhaps to a hospital, or to some other location. In all cases, and at whatever location a person is being searched, he or she is treated with due care and with proper respect under strict guidelines laid down by the Revenue Commissioners for Customs and Excise officers. I am satisfied that the present procedures in relation to searches are operated in a careful and sympathetic manner by Customs and Excise officers. I listened with great interest to the many points that have been made but I feel that, if we were to accept any of these amendments, we would be constraining the customs officers in the execution of their duties.
I will take a number of examples. Let us consider a chartered plane coming into Dublin Airport. The normal daily work and routine of the airport go on and customs officers are doing their normal work. There could be five, ten, 15, 20 or 30 people on that plane carrying drugs, or maybe assisting with the carriage or distribution of drugs. Flexibility must be left to the customs officers so that, if they wish at any time, they can take those people to an Aer Rianta office, or an Aer Lingus office, or bring in a mobile office and so on. If a ship or boat is landing at a private location the customs officers must not be constrained from administrating the full rigours of the law. They must have flexibility to take these people to a Garda station, a Government office, a State agency office, or a State agency department, whatever is near to them. A yacht pulling into our shores would create an opportunity for people to get off quickly, take drugs on land, and drive off in a mechanically propelled vehicle — a bus, a motor car, a van, or whatever. We cannot constrain customs officers as to where they should search those people. There must be flexibility.
I want to assure the House, and reassure the House, that searches have always been carried out in strict privacy and always in the officially designated offices in the Customs and Excise premises at the various ports and airports. I suggest that it is in the best interests of our people and in the proper detection of drug smuggling into our country, that we must give the Customs and Excise officers this flexibility. Therefore, I sincerely regret that I have to oppose all these amendments.
I accept the Minister's assurance that there will always be an element of privacy when people are searched or interrogated. I was concerned that at least there would be an element of privacy if all the other sections came into play. The Minister has assured me that that will take place. Our amendment did not exclude the right to remove these people to a Garda station, where there would be an office with the proper facilities, or a hospital. I would not rule out moving them anywhere that was necessary, provided the facilities are there, that the suspects' rights to privacy are protected and that the Customs and Excise officer is assisted in the proper performance of his duty, not using some corner where there might be a curtain pulled across and the person involved could be seen by other people because of this lack of privacy. This procedure should apply to everyone who comes into this country whether they come by chartered plane or any other way.
As Senator Bulbulia mentioned, we should try to apply a certain standard in this area. If we have high standards we will have the full co-operation of the Customs and Excise officers but we also want to ensure that the rights and the privacy of individuals, who might eventually be found to be innocent, are protected. That is the only reason I wanted to define that an office should be clean and capable of providing the facilities we address in other sections. I do not want to constrain the Minister but I want his assurance that he will provide the facilities I am looking for.
They are already there.
I accept that.
Amendment, by leave, withdrawn.
Amendments Nos. 9 and 10 not moved.
Debate adjourned.