Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 9 Feb 1994

Vol. 139 No. 3

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

I welcome the Minister to the House.

Sections 1 and 2 agreed to.
SECTION 3.

I move amendment No. 1:

In page 4, line 4, after "building," to insert "mobile home,".

The Minister made an amendment in the other House to insert the word "includes" rather than "means". I accept that this could include mobile home and I will not press the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 4, paragraph (e), line 18, after “train”, to insert “bus, taxi,”.

I welcome the Minister to the House. The section refers to any train, vessel or vehicle used for the carriage of persons for reward. It is important that there is a particular emphasis on buses and taxis. Assaults on train drivers are rare but there are frequent and regular assaults on both taxi drivers and bus drivers in this city. A considerable number of bus drivers, mainly in Dublin but also across the country, are assaulted and robbed on a regular basis. We should endeavour in this House to reassure many of these bus drivers that we share their concern and fears about continual assaults and robberies.

I am sure the Minister is aware that in 1992 there were 81 assaults on bus drivers, while in 1993 there were 84 assaults. In 1992, there was 51 robberies of bus drivers while in 1993 there were over 80. There are approximately 1,750 bus drivers in Dublin, and of these, 50 are out of work through injury following assault. Mr. Bob Montgomery of Dublin Bus stated recently: "We would hope to have the continued support of our customers, the Gardaí and the courts in ensuring that our staff can carry out their jobs free from the threat of assault". I accept that, but we in this House should make every effort to protect bus drivers and taxi drivers who are in the frontline and are being continually assaulted.

Dublin Bus are introducing protective screens to help safeguard drivers, but the inclusion of this amendment in the Bill would be of benefit and would demonstrate that this House shares the concern of Dublin Bus and the bus and taxi drivers in this city.

I ask the Minster to give favourable consideration to the amendment.

I also share the concerns of workers in Bus Éireann and Bus Átha Cliath. When I had responsibility for both organisations in 1992, as Minister for Transport, there was close co-operation between them and the Garda Síochána to minimise the number of attacks as far as possible, especially late at night. Over a period of time, late night services to certain parts of Dublin were suspended. I was delighted that those services were resumed with the full co-operation of the gardaí when I was Minster for Transport.

Since I became Minister for Justice I have taken an interest in this area and I am aware that substantial progress and improvements have taken place regarding a lowering of the level and the number of assaults on drivers, and that Bus Éireann has taken, with the advice of the gardaí, the kind of measures to which the Senator referred. The officials and workers of Bus Éireann and Bus Átha Cliath can be assured that every support will be given to them by the Garda Síochána to try to minimise both the number and the level of assaults.

I do not believe that the proposed amendment is necessary. There is no doubt that both buses and taxis are covered by the phrase "vehicle used for the carriage of persons for reward". I am also advised that there could be technical difficulties with the proposed amendment and that it would be unlikely to be helpful to the courts in interpreting the section itself. For example, as worded, it might be taken to suggest that a bus or a train is not a vehicle used for the carriage of persons for reward and this would cause needless confusion.

There is also the point that because of the use of the word "includes", the list is not intended to be exhaustive. While I appreciate what the Senator is trying to do, I am unable to accept the proposed amendment.

In my discussions with Dublin Bus and the taxi drivers, they expressed their appreciation of the work of the Garda Síochána, which has been enhanced by the link between their radio controls and the Garda stations.

The Bill makes specific reference to trains. The offences covered by this amendment relate to public order, especially with regard to buses, bus drivers and taxi drivers, many of whom are in fear for their personal safety at times and, on occasion, for their lives.

The purpose of this amendment is to ensure that a clear message goes out from this House that any assaults on bus or taxi drivers will be viewed with the utmost gravity by this House, the courts and all other authorities. This type of vandalism and crime must be stamped out. People should be able to travel safely in this city and those who do not have private transport need buses. For the sake of those people, I ask the Minister to accept this amendment.

The Minister agrees it is necessary to ensure that those who drive and man buses in Dublin city and elsewhere are protected from those who would attack and rob them. I sympathise with the Minister's position in terms of the legislation before the House. If we refer directly to bus or taxi, we will face problems relating to definition, but the word "vehicle" covers that.

I agree with Senator Enright in regard to personnel, but I would deal with the protection of personnel by way of penalty and by ensuring the law is exercised to its fullest severity when people are attacked. Sometimes the exercise of the law in the protection of those who have been assaulted is not all that it might be. I appeal to the Minister to deal with this matter through penalty rather than by the insertion of the words proposed by Senator Enright. The Minister and Members on all sides of the House agree we must ensure that personnel and the public are not injured and property is not damaged.

In case anyone is in any doubt, this section does not deal with assaults, it deals with the definition of a public place. Senator Dardis made an important point when he said we have other laws which deal with assaults on taxi and bus drivers, etc. Furthermore, strong powers have been given to the Garda Síochána in section 18 and elsewhere in the Bill. Senator Dardis was correct when he said the way to deal with this type of assault is not by increasing powers or by introducing more legislation but rather by the level of penalty included in any Bill which deals with assaults.

The amendment is superfluous because the term "includes" is contained, so the list is not designed to be exhaustive. A vehicle used for the carriage of persons for rewards includes buses, taxis, hackneys, etc. If the section lists vehicles, one is bound to leave one out, thus creating difficulties of interpretation in the courts at a later stage.

I will not labour the point, although trains were included. I put down this amendment because those at the coalface who are being assaulted are Dublin Bus personnel. That is why I wanted to include buses.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 4, line 19, after "reward" to insert the following:

"and includes for the purpose of sections 5, 6 and 7 any place adjacent to, or in the vicinity of, a public place from which persons in that public place can see or hear the behaviour prohibited by those sections".

We accept that a law must be practical and must deal with realities which arise. The Minister gave a commitment in the other House that she would accept the intention of an amendment put down by my colleague, Deputy Michael McDowell, and that she would consider it between Report Stage in the Dáil and Committee Stage in the Seanad. She has made amendments to section 3, which deals with the interpretation of the Bill, but she has not gone far enough. It does not make sense that it is acceptable for somebody with a ghetto blaster to throw a cider party in their front garden and shout at neighbours as they go up and down the street but not acceptable, and seen as an interference with public order, if they do this outside their front gate. I ask the Minister to explain why she could not accept more fully the recommendations made by my colleague in the other House.

A similar amendment, as Senator Honan has said, was discussed at great length in the other House. She is correct in saying I undertook to look at this matter again during the course of the Bill's progress in the Seanad. The definition of a public place has already been amended to deal with the main practical difficulties about the definition as it was originally formulated.

Fears were expressed that it would be insufficient to cover gangs of youths gathering and misbehaving in public parks, whether those parks were open or closed. Paragraph (b) of the definition now covers this. Paragraph (c) also includes cemeteries and churchyards. These were very sensible amendments to deal with real problems in our communities.

There were very strong reservations expressed in the other House about an amendment similar to that tabled by Senator Honan. The basic problem is that if places adjacent to public places are included, in reality almost everywhere becomes a public place. I believe this would go too far. To take the example Senator Honan raised, in which a family dispute takes place in someone's front garden and the behaviour of those involved can be seen and heard from the roadway, under the terms of the amendment the sections of the Bill would apply to that behaviour. If that behaviour came within disorderly behaviour under section 5, an offence would have been committed and the Garda would have the power to direct the members of the family to leave. If this direction was not complied with, there would be an automatic power of arrest. While this may seem an extreme example, it well illustrates the need for caution in this area.

The argument was strongly made elsewhere that essentially the very nature of public order offences is that they occur in areas to which the public generally has access. They are not designed to regulate behaviour where a person is on his or her own property. In terms of civil liberties considerations, it seems reasonable to suggest that the standards of behaviour required from people, when they are in areas to which others also have access, involve different considerations from the type of behaviour in which people can indulge, say, in their own back gardens. This distinction would be particularly acute in relation to disorderly behaviour under section 5.

As a general principle, the criminal law should be more reluctant to intervene where behaviour of the kind covered in an early section of the Bill takes place other than in a public place. Otherwise, there would be a real danger that gardaí would be called on frequently to adjudicate on relatively trivial rows and disputes between neighbours who object to each other's behaviour when in their back gardens. I do not dispute that genuine difficulties can arise in this regard but I regard the intervention of the criminal law, as apparently envisaged by this amendment, as far too blunt an instrument and going beyond the purpose of the Bill.

I have to say, however, that despite extensive consultations with the draftsman, we have not been in a position to devise a formula to deal with all possible genuine difficulties in a way which would not leave the definition wide open to cover matters such as family disputes. This type of difficulty was largely recognised by the proposing of similar amendments elsewhere. We have devised a different approach in relation to one of the main difficulties mentioned in terms of the present definition. It was suggested that under the definition the Garda would remain powerless to deal with gangs of youths who trespassed on derelict sites and caused difficulties for the surrounding communities. This situation is already dealt with, to some extent, by section 13, which deals with trespass on any building or the curtilage thereof in such manner as causes, or is likely to cause, fear in another person. In amendment No. 18 I propose to give the Garda power to move on people acting in such a manner. This will represent a practical approach to the difficulties which have been raised.

I am particularly interested in this amendment and the Minister's reply, in which she goes some way to meet my anxieties. She is, of course, very sensitive to issues of civil liberties and so, on most occasions, am I. However, I am persuaded of the importance of this amendment by virtue of my own recent experience.

The Minister has more or less outlined some of the difficulties which can arise. We have a problem, for example, in two buildings in North Great George's Street which I managed to get placed on the derelict sites register. They were then taken over and an attempt was made to turn them into flats. This broke the building regulations and resulted in a court case. As a result, the buildings became derelict to a certain extent.

There are some surviving tenancies from the original illegal development. There has been a series of squatters including cider drinkers, drug addicts and so on. There have been attacks on the public, handbag snatchings and considerable nuisance occasioned by noise caused by ghetto blasters. There is also the sound of floor boards being ripped up, electrical appliances being destroyed and people in the neighbouring house have been exposed to the danger of fire and flooding because the lead has been taken off the roof.

The police have been extremely helpful and sympathetic. We had a meeting last week with the superintendent in Fitzgibbon Street station. I almost had to protect him because of the exasperation of some of my neighbours. I had to say to them that this man is doing his best but he is circumscribed by the law. Every instance raised by people who are living in great fear and trepidation next door to this nuisance was met by the superintendent saying that there are no powers under the criminal law. The Garda cannot enter the building except in hot pursuit. Noise, for example, is a civil matter. A civil case can be difficult and long drawn out and in a situation where the proprietor of the property is ill disposed can expose the complainant to danger and intimidation.

I am persuaded that there is a necessity to look further at this law so that the police have powers to do something where there is serious danger and threat. With regard to noise levels, for example, the superintendent explained that if there is an outrageous party going on late at night they can knock politely at the door——

Is that at the Senator's house?

Unfortunately, it is not. They can knock at the door and ask that the volume be reduced but they have no power to enforce it.

Behaviour in trains, vessels, vehicles and so on can cause a nuisance to the public, but so can the behaviour of people on private property. They appear to have rights even if their tenancy is illegal or if they are squatters. I am not sure that is really acceptable. I know that I may be going against my usual civil liberties stand in this but I do so simply because I am so aware of the problems for people living next door to such nuisance. I have also been made aware of the difficulties for the police who do everything they possibly can but often their hands are tied.

The Minister has gone some distance to bridging the gap, if I may use that term, but I still see a difficulty. To put a hypothetical case to her, let us assume that there is a farmland adjacent to a housing estate. People enter the land — as they have in the case of my farmland and had their cider party by the banks of the river — and in that way cause a nuisance, disturbance, criminal affray or whatever. Is section 13 adequate to deal with that situation? These people have entered private property and are trespassing. Does it then become the owner's responsibility to eject them? What powers do the Garda have to get rid of them and to stop their activity? In rural towns there can be a real problem where farmland or other private property runs right up to the edges of housing estates and buildings. The distinction between the individual who comes in and causes disturbance and the gang that comes in and causes disturbance was dealt with by Senator Norris and I do not need to go into that in great detail.

I acknowledge that there is a balance to be struck between civil liberties and the right to privacy of householders and people living in residential areas. If somebody has a neighbour who practises on his tenor sax for ten hours a day, does that get to a point where it comes within the ambit of this legislation or would it be up to the injured party to take an action for nuisance and deal with it in the courts over a lengthy period at their own expense? That should not be imposed on people. In certain circumstances it should be dealt with under criminal law rather than having the individual seek redress at their own expense through the courts.

I realise that there is a framing difficulty in terms of trying to cover every situation. Nevertheless, I would be interested to hear what the Minister has to say about how this legislation might deal with those situations.

The water has been muddied a little here and we are dealing with a number of different issues. It is most important to remember the constitutional guarantee that one's private property will not be interfered with. There are several Acts which support this guarantee by protecting private property from trespassers, criminal damage and trespassers with criminal intent.

I understand some of the points made but if an amendment similar to that suggested by Senator Honan is accepted, it could jeopardise the constitutionality of certain sections of the Bill. There is also the consideration that many of the problems raised by the Members opposite are already dealt with both in recent legislation and other statutes which have been in place since the 1850s. Inserting the suggested amendment would jeopardise the intent of the section and the Bill and it would be a bad move.

Senator Norris himself acknowledged that noise levels are very subjective. Three people may be living side by side and one could prefer classical music, another country music and the third heavy metal music. One could have Daniel O'Donnell versus Pavarotti versus Deep Purple.

No tenor sax.

And some might prefer no music.

We should ask Senator Cassidy if he knows anything about this.

Or Senator Mooney, who has a radio programme. We have to be careful not to complicate this legislation by trying to cover so many subjective matters. Senator Norris gave an example about floorboards being ripped up and electrical wiring being pulled down and the genuine fear caused to neighbours. When this Bill is passed, the gardaí will have the power to deal with that under section 13. That is the important point and we do not need to accept this amendment in order for that to happen. In discussions with the gardaí and others involved in the legal system it was clear that they were pushing very strongly for a power to deal with this sort of problem.

Senator Dardis spoke about cider parties on the banks of the river on his land. That is trespass and would automatically be covered under section 13 of the Bill. It is important in the context of civil liberties that we do not go too far. I have already been accused of going too far. However, I hope that Senator Norris will be satisfied that when the Bill is passed the type of behaviour he mentioned will be covered under section 13.

I have reservations about this amendment because I have seen cases where a young family has the radio on and a neighbour, who perhaps is ever so slightly cranky, complains. It can cause friction between neighbours. In that sort of situation where there is high spirits in a young family, I feel it could lead to more friction and problems in neighbourhoods. It would be far too strong an addition to the Bill.

I want to lay my cards on the table in response to what Senator Crowley said about private property. I am a property owner. I have an interest in property through various organisations around the city but there is far too much regard for the rights of property owners in this State. We are supposed to be a Republic. We are supposed to protect the interests of persons of no property, but we guarantee the rights of property owners ad nauseam. There should not just be respect for the rights of property owners, there should be an examination of the responsibility of those who own property to maintain those properties and to ensure that the conduct carried on in them is appropriate and civilised. It would not cost me a thought if the rights of property owners were mitigated to some extent in the public good. I wish to point out to my friend, Senator Crowley, with whom I agree on so many things but not on this, that there is a case to be argued under the Constitution that the public good carries at least as much weight as the rights of property.

One of the problems is that buildings are allowed or are encouraged to become derelict so that what are known as northside planning permissions can be obtained. Where planning permission is not granted, vandalism is encouraged and then it is possible to apply to the corporation for permission to demolish. The police cannot act even if certain activities which the public suspect to be criminal in one way or another are taking place unless the owner complains to the police. That is a problem because where the owner is seeking the dereliction of the property he or she will not be anxious to lay a complaint and a third party such as a neighbour or passer by is precluded from making that kind of complaint, as I understand it. Perhaps I am misinformed.

Music and ghetto blasters are not the only problems. I passed a series of houses during this week where men were ripping up the floorboards. They were doing considerable damage to an essential element of a building that is listed for preservation. When I reported it to the police I was told there was nothing they could do unless the owner complained. I am looking for the right of a third party to lay a complaint against that kind of vandalism and damage and I do not care if it mitigates the rights to private property.

We have far too much respect for the rights of property owners who very often, certainly in this city, are not scrupulous about the way in which their property is maintained. There was a situation where people were being mugged, handbags were being snatched and the young attackers were running into this particular house. The police went in eventually and they found 30 or 40 handbags on the roof. These people had access to the skylights. If one house in a Georgian terrace goes rotten it is like the proverbial rotten apple in the barrel. It exposes every house in that terrace to the danger of penetration, theft and fire. If one house goes on fire it can very rapidly spread to an entire block.

I thank the Minister for drawing my attention to section 13. This assists to a certain extent, but not entirely because it deals exclusively with people who are trespassing. What is the situation with regard to a person who maintains they have acquired by some means or other, perhaps with the connivance of the landlord in order to vandalise the premises, a legal or quasi-legal tenancy? They are not trespassing, but they may be a nuisance or causing damage. Section 13 as I understand it, and perhaps I am incorrect, only covers persons who are trespassing on the property.

We are not discussing section 13.

I am discussing the Minister's answer.

We have spent a long time on this section and I am anxious to move on. Perhaps Senator Crowley will conclude this discussion.

I will facilitate you, but the Minister was attempting to satisfy my argument by reference to section 13. I am trying to demonstrate that while section 13 has gone some way to assist, it does not satisfy me or meet the requirements.

The Minister is correct about the subjectivity of noise levels. I am well aware of that because we had to deal with this problem. We had to get special instruments to measure the number of decibels because we were dealing with commercial dance halls. It is not always possible to do that.

One of my neighbours was so annoyed about the noise coming from a concert band which was practising in the street that I attempted to do something about it. The moment I quelled that noise, he established a school where drumming lessons were given in a small shed in his back garden. This destroyed my enjoyment. He was acutely sensitive to the noise of Dublin concert bands practising, but yet for some unexplained reason he was deaf to the immensely irritating sound of someone practising jazz drumming in a back garden two doors away from me on a summer afternoon. I accept the Minister's point about subjectivity.

I want to respond briefly to what Senator Norris said. The Constitution protects private property rights and the inviolability of those rights. It does this with regard to the public good and it is contained in the Constitution. They are not mutually exclusive, but inclusive.

Amendment put and declared lost.
Section 3 agreed to.
SECTION 4.

I move amendment No. 4:

In page 4, subsection (2), line 25, to delete "to a fine not exceeding £100" and substitute "for a first offence to a fine not exceeding £100 and for any second or subsequent conviction to a fine not exceeding £500".

The Bill provides for a fine not exceeding £100. The courts should be empowered to impose a fine of up to £500 for a second or subsequent offence. This could be a serious matter. The sum of £100 is a reasonable amount to pay for a first offence. Different amounts, for example, £500 or £1,000, were mentioned in the Dáil when this matter was discussed. We should allow the courts to impose a fine of up to £500 for a second or subsequent offence.

The Minister will be aware that when she introduced this Bill I made some references to what could be loosely referred to as the town drunk or the chronic alcoholic. There is at least one of these in every town or village and if they do not reside there they come from outside and make a nuisance of themselves and endanger the citizens about their normal work. This section does not address this problem. Inserting an amendment to increase the fine will not minimise or help to eliminate such a public nuisance. I appreciate that the Minister has a difficulty in this regard but, rather than fining or imprisoning, there should be a form of community service for such people. I do not see the point in heavily fining someone who has not got the resources to pay. The sort of person I am talking about does not have money because they drink or gamble it all away. If they are put through the courts system and fined £10 or £20 the chances are that they will be in default. What happens then? A summons is served on them and they are locked up for a certain length time. They are probably put into rehabilitation or a low-security custodial environment. After the required number of months has been served they come out and do exactly the same again. I am suggesting that there should be some mechanism within the law that does not impinge on the independence of the Judiciary but would encourage judges faced with this type of individual to look at the long term effects of whatever penalty they impose. That long term effect should have a rehabilitation aspect rather than a custodial one.

We have inherited much of our legislation from the British. Senator Norris touched on this in his last contribution. There seems to be an over-emphasis on the rights of people of property and we seem to have inherited this culture. Rehabilitation was not a word that entered into the vocabulary of that time. We are a much more caring society, even — if I may use the word — a liberal society in that we no longer believe locking people up and throwing away the key will solve the problem. It does not. The problem comes back to haunt us again.

I would ask the Minister to consider introducing at some point under this section — if not in direct legislation — a climate of encouragement so that people transgressing the law would not just be fined or locked up but put into community service. That way they would be of some benefit to the community they have antagonised and intimidated. Perhaps she might consider this point.

I would like to support the thrust of what Senator Mooney said. I am extremely disappointed that a person drunk in charge is liable to have a criminal conviction against them. The Law Reform Commission suggested that this should not happen. When discussing the Road Traffic Bill a few weeks ago, I asked if pedestrians and cyclists — who may be the intoxicated parties involved in an accident — could be subjected to blood or urine tests in hospital. Apparently this is not going to be so, whereas a person who is a danger to themselves, let us say, can be arrested and brought before the courts. As far as I know, the courts are allowed to demand community service. That is what I hope would happen. It would be serious to make the fine higher because people in these conditions will not be able to pay. This applies not just to the village drunk.

One summer's night last year, going along St. Mary's Road I came across a very drunk young man of about 18 years who was rolling around in the road. All he could say was that if his mother could see him she would kill him, and so she would have. I could not get a name and address from him so, aided and abetted by the sacristan from the local church, we eventually alerted the gardaí who brought him to hospital. How enthusiastic would the sacristan and I have been if we thought the young man was going to have a huge fine slapped on him? I would suggest that community service is the obvious thing.

Rather than imposing big fines on people who are rambling on the roads, they could be dealt with in a much better way by giving the Garda some power to detain them instead of charging them. It would be much more satisfactory. I would be extremely slow to have any involvement with people who, while a danger to themselves, are not really doing any harm to anybody else, if I thought they were going to have an enormous fine imposed on them. As Senator Mooney said, they would obviously not be in a position to pay it and so they would be lodged in gaol.

I support what Senator Mooney said. It was a very careful and considered contribution. I am not entirely sure what benefit the community would get from the service of the kind of derelict he described, or how capable they would be of serving the community in any advanced way, but it certainly would be better than——

In the experience I outlined, the person was excellent. He was put on a FÁS scheme in the tidiest town we have in the country.

I am very happy to hear that and it strengthens the case. I would be happy if the Garda had the power to remove somebody from a scene where they were capable of causing a difficulty. In most police stations there used to be something called the drunk-tank where people were stuck, without conviction, to sober up. Then the friendly neighbourhood guard released them the next morning with a hangover. Driving here today, at about half past one, I saw a man as drunk as a boiled owl in Nassau Street. He was walking along the white line in the middle of the road and behind him was a procession of taxis, cars and buses. The language I used towards him when I came parallel to him was the reverse of parliamentary.

He was somebody who certainly could have been seriously injured or killed if someone had come around a corner. Alternatively he could have caused serious damage or injury to somebody else driving a car. I have frequently seen, particularly at night, people who are thrown out of pubs lie in a huddled heap until some degree of consciousness returns, and then stagger out into the middle of the road. Very often they are shabbily dressed in dark clothes which makes it virtually impossible to see them. I support what my colleague Senator Henry, said about the dangers created not just by drunken drivers but also by drunken pedestrians as a hazard to motorists.

I am persuaded by the argument of Senator Mooney that fining some of these people is not always the appropriate mechanism, but there are occasions on which members of the professional classes have been known to misconduct themselves at a late hour of the evening when under considerable strain. I would have no problem about them being restrained either, or perhaps even inserted in the drunk tank and given an asprin the next morning.

I would have them sweeping the streets as well.

Apart from my opposition to Senator Enright's amendment, it is lost at this stage even if it goes to a vote. I think I have everybody on my side. In the Bill as published the maximum penalty was £500. I reduced that to £100 because of a long discussion on Committee Stage in the Dáil. There was a lot of opposition to the offence itself first of all but, having decided that it was perhaps better to have it there than not, there was equal opposition to the level of the fine being imposed. Therefore I agreed to reduce it to £100. I feel strongly that the offence should be there. The Law Reform Commission recommended that an offence along the lines of the offence in section 4 should be included as part of the Bill. That refers to cases where the drunk person is a danger to himself or to others. That has to remain, and we have heard several examples today of the dangers that can be caused.

I feel equally strongly about Senator Mooney's point. We have, as Senator Mooney knows, a discussion document from the Law Reform Commission in relation to sentencing policy generally. A lot of changes need to be made. We do not need to lock up everybody, we need to provide a far greater range of community service orders. In fining people we also need to allow them to pay by instalment or to have an attachment of earnings facility. We do not have those facilities at present. A community service order currently is only imposed in lieu of a custodial sentence. The judge cannot impose a community service order instead of a fine. That creates its own difficulties. Senator Mooney is right that much good work has been done throughout the country through community service orders and that should be encouraged. It is often a greater humiliation, particularly for younger criminals, to be obliged to obey a community service order in their own community than it is to go to Mountjoy. Nowadays, in certain places it is a notch in one's belt to have spent time in Mountjoy. The discussion document from the Law Reform Commission is available. I impatiently await the final document because we will then introduce separate legislation dealing specifically with sentencing policy.

With regard to Senator Henry's point, we must ensure that the Garda Síochána continue to use their common sense even though they have substantial powers. They often encounter drunken people about to get into a car. They could let those people get into the car and drive it but often the gardaí will convince such people not to drive the car because they realise the probable consequences for the person's job and family. They use their common sense and take such people home or act in the same way as Senator Henry and her friend the sacristan. We should recommend that course of action and ensure that it remains available to them. Then we will not suddenly have gardaí on the streets of Drumshanbo or Carrick-on-Shannon running after the town drunks and detaining them. It is better to take the course of action I and other Senators have suggested. I believe Senator Enright's amendment is not supported by any side.

There are varying degrees of severity, which depend on who is hearing the case. A number of judges place people who come before them for an offence of this nature in the care of the court welfare officer. Unfortunately, that is the exception rather than the rule. So many cases come before the court that the judges do not have the opportunity to take an interest in an individual who may be an alcoholic. Much rehabilitation can be achieved through the court welfare officer working in conjunction with the District Court.

However, some individuals cause serious problems. It is when such serious problems of annoyance and upset are caused by individuals that the gardaí will charge them with the offence. The gardaí, confronted by the person lying asleep on the side of the street, will usually bring him home although that is not to be recommended when they have so much other work to do. I proposed the amendment to deal with people who continually misconduct themselves and endanger themselves or other people. I will not put it to a vote. It is a last resort to summon such people but in some cases it may be necessary.

The Minister has reassured me. The gardaí should be encouraged in their social worker role towards drunks. I have worked in casualty departments and it was a major problem when the gardaí unloaded such people at night. Some people may have been in a drunk cell, while the remainder were in the casualty department. It is somewhat irritating. I am sure that the gardaí and the medical profession would prefer to put up with such irritation rather than have people charged. A criminal conviction is very serious. I hope the gardaí will continue their excellent work with these people.

I am glad that the Minister referred to the good sense and discretion of the gardaí in handling these situations. One matter which has not been referred to and which I consider to be particularly tragic is the sight, which I have frequently witnessed, of a drunk adult in charge of a child or children. I have seen the gardaí intervene in such situations in order to protect not just the drunk but the child. We have spoken about property rights and we constantly hear about the rights of parents and the rights of the family. However those parents can often violate such rights. It is very frightening for a child and it is bad from the educational point of view that they are inured to such behaviour by adults. It can also expose children to real danger and I have seen the gardaí exercise their good judgment and discretion in this regard.

Senator Henry mentioned that the hospitals are filled with such people. I do not want to suggest that I live in a disreputable part of Dublin but I am well aware that every Friday night the same people collapse in a drunken stupor after instructing somebody to ring the hospital. They even have the number ready because they want to spend the weekend in hospital. In a way I do not criticise them for that. They are unfortunate people who are down and out. They may inflict themselves on Senator Henry and her medical colleagues, but they are unfortunate and cannot bear to be exposed to life on the pavements of the city at weekends. They get drunk and ensure they are sent to hospital or arrested because it is the only place they can go.

Amendment, by leave, withdrawn.
Section 4 agreed to.
NEW SECTION.

I move amendment No. 5:

In page 5, between lines 5 and 6, to insert the following new section:

"5.—Where a member of the Garda Síochána suspects, with reasonable cause, that a person is consuming intoxicating substance(s) in a public place, in such a way as to cause nuisance to another person, the member concerned may seize, obtain or remove, without warrant, any bottle or container, together with its contents.".

The main reference is to intoxicating liquor but I am anxious that the gardaí have the power to take action when drugs are involved. It is important that drugs be covered in that instance.

This amendment was proposed by Deputy Gay Mitchell on Report Stage in the Dáil. I believe my amendments on Report Stage adequately met the aim of this amendment. The Garda Síochána under section 4 of this Bill will have the power to seize intoxicating substances where an offence is suspected under sections 4, 5 or 6.

I am advised that there would be a difficulty in providing for a power of confiscation, as the amendment proposes, which is not linked to the commission of an offence. The amendment refers to a person consuming intoxicating substances "in such a way as to cause nuisance to another person". Senator Enright and others would accept that what is really at issue is not the manner in which substances are consumed but the attendant bad behaviour. I am confident that the amendments that have already been made will meet the points of concern in that regard.

I support the Minister. The concerns expressed by Senator Enright appear to be genuine. However, his concerns are met by the Bill as amended by the Minister in the Dáil. The only margin of difference between them is the manner of consumption. In a sense, it is almost down to table manners. The fact that somebody is a sloppy drinker and one is offended that he slurps his drink and audibly wipes his moustache — I am being facetious to an extent — appears to be the only difference. The concerns appropriately expressed by Senator Enright are covered by the Bill as amended in the Dáil.

I accept that the Minister's amendment went a considerable way to resolving our concerns. I am not referring to somebody who drinks beaujolais at lunch. I am deeply concerned about the drug problem, which was mentioned on the Order of Business. I put down this amendment to ensure there was no loophole whereby anybody could escape. I am sure the Minister's advisers and the Garda Síochána have brought this matter to the Minister's attention. I am aware of people who were arrested for drunken driving, but when they were breathalysed and samples were taken it was found that they had consumed only a small amount of drink. Drugs were responsible and the gardaí were not aware of it until afterwards. This might be an exception but I put down the amendment to deal with instances where drugs are being used.

I would like to be assured that the Minister is satisfied with this section. Despite the good sense of gardaí — we all have the attitude that all our policemen are wonderful — the reality is that this gives sweeping powers to the Garda Síochána. The section refers to a specific time and, in the context of the amendment, to specific items, but the Garda have the right at any other time to charge a person with an offence if they believe that they have been conducting themselves in a disorderly manner in a public place. I will leave the matter at that. The Minister has had many applications from those concerned about the erosion of civil liberties. I am satisfied if the Minister is content that this is a section that will be helpful and beneficial to the community rather than a further erosion of civil liberties.

Acting Chairman

Is amendment No. 5 being pressed?

Amendment, by leave, withdrawn.
SECTION 5.

I move amendment No. 6:

In page 5, subsection (1), between lines 11 and 12, to insert the following paragraph:

"(c) after having been warned by a member of the Garda Síochána that they are committing an offence.".

After Leaving Certificate examinations many young people go out for the night to celebrate the completion of their exams or the results. Everybody is in high spirits. They might be singing or shouting — which is not to be condoned — and they meet a garda who tells them to stop. However, they continue on their way and somebody starts again. I am not in favour of such conduct but we must recognise that it happens. It is not sufficient for a young person who is in high spirits after an exam that they be asked to desist. If this sweeping section is to be included they should also be warned.

The section deals with offensive conduct or annoyance to any person. Annoyance is relative. I live within 50 yards of a night club and on occasion people come out of it in good spirits and make a little noise. However, on a Saturday night in the middle of the town one cannot expect everybody to walk home with their hands in their pockets and their mouths closed. One must expect high spirits from young people and it is living in a fool's paradise to think otherwise. We have to allow people to let off a little steam. One can meet people who get annoyed over simple matters. In the context of this section I would be careful to give people a little leeway irrespective of their age.

We have spoken about the common sense of the vast majority of the Garda Síochána and of our judges in all courts. However, let us admit there is an exception to every rule. It is human nature. A defendant might come before a particularly strict judge and be landed with a conviction. Since it is a criminal conviction they might find that their entry into other countries is prohibited. I feel strongly on this matter and I hope the Minister might see her way to accepting this amendment.

I read through the section several times when I saw this amendment. Perhaps I am being naive in my reading of section 5 (1) (b) but if a member of the Garda Síochána asks somebody to desist from doing something they inform them that if they continue they are committing a crime. There is an implication they would be informed that they would be in breach of the law or are likely to be in breach of the law.

Further leeway is given in subsection (3) in reference to "any person who is or might reasonably be expected to be, aware of such behaviour". A reasonable standard is to be applied. If a garda is being over officious, as Senator Enright pointed out, the standard is being applied reasonably so the court can interpret that in a broader sense than the officer who brought the charge. I am not certain that there is a necessity for the amendment.

I support Senator Enright. I would like the Minister to clarify what Senator Crowley said — that there would be the implication that people would be informed by the garda that they are committing an offence. This could be quite serious as people might not be aware that they are committing an offence. People are well aware that certain things they might do are against the law, but in this case, particularly with young people, they may not be aware of that. I would like the Minister to clarify that the Garda Síochána would inform the person that they are likely to be committing an offence if they continue.

I would be opposed to this amendment. It is reasonable that between certain hours, particularly the hours of midnight and 7 a.m., the gardaí would have powers to deal with certain forms of behaviour and that such behaviour would be subject to criminal law, irrespective of whether the gardaí happen to be present. As in many of the sections of this Bill there is a difficult balance to be drawn. On the one hand, we do not want to place needless constraints on boisterous young people, whether they are celebrating the Leaving Certificate results or celebrating after a football match. On the other hand, we have to protect people as best we can from the antisocial behaviour of others which impinges adversely on the quality of our lives. What we are proposing under section 5 — outlawing behaviour at set hours where, by definition, it is most likely to be objectionable — is a reasonable attempt to strike that balance. More serious forms of such behaviour are dealt with under section 6. I honestly think we have kept the right balance in this section. There are times when people, not always the young, get involved in certain behaviour between midnight and 7 a.m. Often they are not aware their behaviour is causing difficulties or causing fear to other people. Under this Bill if a garda approaches a group of young people and asks them to move on under section 8 we would expect the Garda to inform them that if they fail to move on they will be committing an offence. That is implicit in the Bill.

There was a long discussion on this Bill in the Select Committee on Security and Legislation of the other House. I know there are concerns about certain aspects of the Bill. Where such concerns were real I was prepared to amend the legislation accordingly. I feel strongly that within certain hours there is an obligation on people to behave in a particular way. I do not think gardaí will unduly interfere with young people if they are celebrating leaving certificate results or an Irish win in the World Cup. They will have the common sense we spoke of earlier. Those of us who walk late at night will have come across unacceptable behaviour. Often people go out with the intention of causing difficulties for others. Where the behaviour persists and people will not stop we have to have the power in the Bill to deal with it.

When I read the Dáil debates I noted the Minister was open to change and agreed to many of the amendments proposed. She is not continuing that approach in this House.

If the Senator had had the first bite at the cherry he would have received the same treatment.

If the Irish defence had been half as good last Saturday as the Minister's defence of the Bill today, the rugby team would probably have beaten Wales quite heavily.

I am concerned because this will affect young people. There were occasions when I was out for the night between the ages of 18 and 22 when I would have conducted myself in a far different manner from the way I would now. Given the seriousness of what we are discussing, there is no undue effort involved in accepting this amendment. It would mean that young people would be warned.

I have listened to Senator Crowley with great attention because his approach is reasonable. It is important to include this provision in the Bill. It is wrong not to do so. In court a garda will say that he told someone to stop doing something. He should also have to give evidence that he warned the person involved. There will be people to give evidence for and against; the State will outline its case and the defendant will outline his position to protect his good name. Without the warning many young people will fall foul of this section and we have a duty to protect them.

We are dealing with people out on a Saturday night. People from outlying areas will get a bus into large towns to go to discos. When leaving the disco a group will often go to a take away. There is bound to be noise and if one lives in the centre of a town one has to accept a certain amount of it. I live in a town, between two hotels with dancehalls attached. I see nothing wrong with good humoured people and I have no complaints. Even if some people find it annoying it is not fair that the stain of a conviction be put on someone's character, which he or she will have to carry till death. This is a serious matter. It is one of the few areas in the Bill about which I feel strongly enough to call a vote.

I have already established my credentials in this area in the context of the balance mentioned by the Minister. I am disappointed in one respect. I wonder if Senator Enright or his mentors who drafted the amendment are followers of American police shows. They seem to wish to apply the Miranda case to Irish citizens so that the Garda will have to read people their rights. The balance of my sympathy lies with the Minister.

Everyone from rural Ireland will recognise the scenario painted by Senator Enright but he has left out an important element. Much of this antisocial behaviour springs from an abuse of alcohol. The vast majority of young people who go our for a night go home quietly. I live in a town with a dancehall and the citizens there will welcome the extra power given to the Garda by this Bill. It will stop those louts who delight in driving their cars and motorbikes around the streets at 1 or 2 a.m. They deliberately shout abuse at each other or anyone who crosses their path in the firm knowledge that the Garda can do nothing about it. It is only a minority and I appreciate what the Senator says about the boisterousness of young people.

The thinking behind this legislation is to eliminate the acceptance of the abuse of drink in our society. Much of this antisocial behaviour springs from drink, especially among young people. We heard today about people celebrating the leaving certificate. Some people get extremely drunk. Not long ago when I was leaving school the extent of celebration was a bag of chips, an ice cream or a lemon soda. Perhaps the same was true for the Senator. That is no longer acceptable. Now people have cider parties, rampage around the streets, get drunk and claim that when the pressure is off they can do what they like.

I will not labour the point but I welcome the thinking behind the section. If this antisocial behaviour is brought to the attention of the Garda the subsequent blemish on the character of a citizen can result in being barred from other jurisdictions or prevent him or her finding gainful employment. I can understand the reasons behind the amendment, but the Senator has approached the issue from the wrong viewpoint.

Lest the Minister misunderstood me, I wholeheartedly agree with the spirit of this section. Antisocial behaviour is not acceptable. I agree with Senator Mooney that much of this behaviour occurs late at night after discos and pubs are closed. However, it cannot be taken from Senator Enright's amendment that he does not agree with the spirit of this section. He only seeks that the Garda inform people that they are committing an offence. I welcome the extra powers this Bill gives to the Garda Síochána and I accept that there is a need for the curtailment of this type of boisterous behaviour. It would not be unreasonable to ask that such people be informed that they are committing an offence.

I find it hard to understand the reasoning behind the amendments proposed by Senator Enright. The argument he used on section 4 dealt with alcohol-related offences and he wanted to increase fines for second and subsequent offences. However, he is trying to restrict the powers of the Garda to deal with situations which might not necessarily involve intoxication. People may be naturally boisterous and need no substance abuse or intoxication to take part in disorderly conduct. As the Minister said, the implication is already within the section that people would be aware when they are requested by a member of the Garda Síochána to desist from certain conduct that unless they do so they are liable to a fine under the criminal code.

I would be cautious about having an offence on the Statute Book of which the person involved is not aware. There must be some middle ground in this because what is reasonable conduct in one situation may not be reasonable in other circumstances. It is very much up to the individual garda to determine the level of acceptability. We must be wary of somebody committing an offence without knowing that they have done so.

I do not see any problem in what Senator Enright is seeking. The previous speaker summed it up. It is vitally important that people are warned. It is also important that the Garda Síochána, who implement legislation, are instructed that they have to warn people that they are breaking the law. I understand the work of the Garda Síochána and I do not carry a flag for anybody. I am aware of what happens on these occasions because I come from an area where there are similar problems.

The amendment is not asking for a great amount. There are times when one could be speaking to a person who is breaking the law and no matter what one says they are not likely to listen to common sense. The Garda Síochána are fair and I am not saying that they would not be so. Senator Enright is seeking to ensure that these people are informed, irrespective of who they are, that they are committing an offence. There is nothing in the section which covers this point.

We are prepared to accept that abusive or insulting words can be used which do not break the law. I have often attended hurling matches where insulting words were used. In this context the definition of breaking the law could be different because the words would be against another team. A question could arise as to whether we are defining one or the other. This matter is important and compromise can be reached. Senator Enright's amendment is fair. There is no danger in it and most importantly it covers the Garda Síochána if it goes before the courts.

We are supportive of much of the tenor of this section. From our approach, both in this House and in the other House, it can be seen that we support most of this Bill. However, we must be careful.

Senator Crowley mentioned section 4. There is a difference in that section 4 refers to "a reasonable apprehension that he might endanger himself or any other person in his vicinity". There is no danger to anybody here and that is the separate and distinct point. Senator Mooney made the point that many problems arise from the abuse of alcohol. I do not condone the abuse of alcohol. The vast majority of young people are reasonable and they do not over indulge in alcohol. They have a far better approach to alcohol than people in previous generations and many of them are health conscious. Very few of them overdo it.

What about those who do?

They suffer the consequences.

Senator Mooney also made a point about bikes and cars going up and down streets. If there is somebody speeding up and down a street and sounding a horn, they can be charged with dangerous driving. This is a much more serious offence than disorderly conduct because they could lose their licence.

Rewing up cars and blowing horns.

They can be charged with any of those offences. If people drive up and down a street at night at speed or sound their horn, they can be quite easily apprehended and separate action can be taken against them. In this amendment, I am seeking a warning by a garda so that a person realises that he or she has to be careful or they will find themselves charged under this or some other relevant Act and brought before the courts. It is simple. We are discussing a public order Bill and we must not lose our common sense. We must be reasonable and fair.

Senator Crowley should remember that decisions in the courts are based on what is in the Bill, not what we thought was in it. We are leaving out a fundamental point about warning somebody and that is a necessary step. Most gardaí will be fair but if somebody meets a garda who perhaps is over officious and is brought before the courts, the defendant should at least have the opportunity of stating that he or she was not warned. If somebody is told to desist and then warned, they should comply. It does not just involve celebrations on the day of a soccer match or after the leaving certificate. Many young people who are sober and have not consumed any drink will come out of a disco in good humour. They go down the street looking for lifts home and buses and start shouting at one another. That type of conduct is normal every day living. This legislation will hit young people unduly.

Senator Enright should not get the impression that I am being personal with him on this. I deeply respect his views because of his great experience in this whole area of the law. We are probably dealing with semantics. However, I think I am right when I say it is normal practice, except in the case where somebody is being issued with a parking fine, that one is advised that under the relevant section of the relevant Act one is liable to be charged. Whether it is stated in legislation or not, if one is caught for speeding, the garda advises that whatever one may say, it can be used in evidence against one under the relevant section of the Road Traffic Act.

The implication in the section is that the standard to be used in deciding whether the behaviour was one of disorderly conduct or not is the reasonable standard stated in subsection (3). What is being sought by this amendment is a formula that could be employed by people to get off the charge by alleging that they were not read the full list of rights and warned.

It would appear that the Senator wishes to make watertight, and difficult to impose, a section of the criminal code where a certain degree of flexibility should be allowed in the way it is implemented. I agree that there must be protection to ensure that somebody is not wrongly made a target under this legislation. However, in the vast majority of cases this will not happen and what is being proposed in this amendment is uncalled for within the terms of the legislation in the context of the way the criminal justice system operates.

There is obvious concern regarding the erosion of civil liberty, and Senator Enright made a valid point, which I made earlier, regarding the common belief that all of the gardaí are wonderful. They are not all wonderful. I wish that they were, but that is not in the nature of the realities of human life.

The Bill refers to engaging in offensive conduct. Does that apply to, for example, a bunch of boisterous youngsters coming out of any place of entertainment, or even out of a pub, and engaging in laughter and the conviviality that would surround that type of event? Any garda who would use this section of the Bill to charge those people before a court would be laughed out of court. A good lawyer, such as Senator Enright, would drive a coach and horses, to employ a cliché, through such a case by such an over officious garda.

Common sense ensures that we know offensive conduct when we see it, although we may not be able to describe it in writing. Presumably a garda, who has received more training than the general public to identify areas of potential conflict in a social environment, would be able to readily identify offensive conduct. Admittedly it would be the garda's opinion, but that opinion would be subsequently tested by the court.

Where the gardaí identify offensive conduct, they do not then proceed to charge. They request those engaged in such behaviour to desist. There is not a quantum leap from the garda identifying the conduct as offensive to charging those involved and bringing them before a judge. There is a fail safe method set out in the Bill requiring the garda to request those involved to desist. Those charged in court can be asked if the gardaí requested them to desist and if they indicated that they found the behaviour offensive.

Surely there are enough safeguards built in to this section on the basis I have outlined. Even the most officious of gardaí, who would proceed with cases in order to increase their rate of detection or to impress their inspector or superintendent, would have such cases dismissed by the courts.

I appreciate that there is trauma involved in going through that process and I do not question the Senator's motives. I appreciate what he is seeking to achieve by this amendment.

The amendment adds to the Bill.

I remain to be convinced of the value of amending the Bill in this way, given the scenario I have outlined. The Senator may not agree with me but that is how I interpret the sequence of events that would flow from the identification of offensive conduct in a public place by a trained member of the Garda Síochána.

May I remind the House that there are 25 amendments proposed to this Bill and over 30 minutes has already been devoted to this amendment.

Senator Mooney has pointed out that under the Bill a person engaging in offensive behaviour must be advised to this effect and requested to desist, which I appreciate. However, the Bill does not make clear that even when people engaged in offensive behaviour are requested to desist they are aware that they are committing an offence. A reasonable garda will request them to leave, which is acceptable. However, under the Bill such persons have committed an offence, even although they may not aware of this.

Our concern is to ensure that the law provides that the person is made aware that an offence has been committed.

If the garda fails, the person can have the case dismissed.

We believe that those engaged in offensive behaviour should be warned that they are committing an offence. Regrettably, many of these cases will end up in court and no circumstance should arise where people can allege that they were not warned that they were engaging in offensive behaviour.

If one is caught speeding, one is warned that an offence has been committed and charges may follow under the Road Traffic Acts. This is only proper as the gardaí are working on behalf of us all. However, the correct approach has not been taken in this Bill. People could be guilty of an offence and may be under the impression that they are not breaking the law.

In view of this we are seeking an addition to section 6 of the Bill. This will also strengthen section 4 and section 5 and will enhance the Bill generally. Most importantly, it will protect the 98 per cent of the Garda Síochána who work fairly. Unfortunately a small minority of the gardaí do not behave in this way, for whatever reason. In such circumstance the innocent may suffer and, therefore, I ask the Minster to give favourable consideration to this amendment.

I spoke about prevention and that is what we are looking for. A situation could arise outside a chip shop on a Saturday night when a large crowd gathers——

Acting Chairman

That is repetition.

If a queue of people at a chip shop make noise and continue to do so after being told to desist by a garda, a warning should be given. I believe a warning would have an effect and the problem would cease. If the garda in this instance tried to arrest somebody without a warning, it could escalate the trouble rather than curtail it. The best laws are those which people fully understand. In this instance people would understand their position because they would have been given a warning. Going to court is traumatic, particularly for somebody charged with such an offence. A person may or may not get off, depending on the judge.

We are dealing with civil liberties and we must balance that with law and order. We must ensure the rights of the individual and of society are protected. By not inserting a warning in this section, we are weighting the Bill against a young person who may find himself in court for shouting. That is not what we want because it could lead to a serious situation in the future. We often speak about young people and how good they are. They are good and we should ensure they are treated fairly. Without the simple inclusion of a warning in this section, the Bill is weighted against young people.

We have gone off beam in discussing this section because we have gone into the realm of suggesting that every garda will go out of his or her way to find young people genuinely enjoying themselves after midnight, whether outside a chip shop or otherwise. We are suggesting gardaí have nothing better to do with their time than to follow people, arrest them and bring them in under the rigours of the law. That is not what the Bill is about.

Senator Mooney put the case well when he said we are talking about offensive conduct and unreasonable behaviour. Everyone knows what offensive conduct and unreasonable behaviour are. Why should we accept an amendment to this section which would mean people could only be dealt with if a garda had warned them in advance? I know a case where an elderly couple who live on the main street of a town are persistently disturbed each morning between 2 and 4 a.m. by a gang of young thugs who sit on their window ledge. They sing at the tops of their voices and play a ghettoblaster. When the elderly couple telephone the Garda Síochána they scarper. The gardaí are unable to find them and when they go, the thugs return. I do not believe Senator Enright is suggesting in that instance that the gardaí give these people a warning stating that they will dealt with under public order legislation.

Young people know what offensive conduct and unreasonable behaviour are. We are not referring to teenagers who want to go out to have a good time. Such teenagers behave in a reasonable manner and they do not cause difficulties for anybody because they are not involved in offensive conduct. They are involved in the same type of behaviour we were involved in when we were young. We are not trying to upset the normal social behaviour of anybody. We are talking about anti-social behaviour, offensive conduct and unreasonable behaviour which create difficulties for people. We must give the gardaí the power to deal with that. Amending this section so that a garda could only deal with that by giving a warning in advance, would place unreasonable constraints on gardaí.

Senator Enright is suggesting that gardaí will have nothing better to do with their time than to go around looking for these young people. I know the Senator does not want to suggest that, but that is how it may interpreted.

I was open in the other House and Senator Enright has been complimentary in that regard. I will be equally so here. Amendments I put down and those I accepted on Committee Stage and on Report Stage in the other House have gone a long way to deal with points made. If there are further instances in which the Bill needs to amended, I will be happy to do so.

I, like others, am aware of civil liberties, but it is a two way thing. Young people have civil liberties in that they may go about their social activities in an acceptable manner, but so too do elderly people living alone and those who are persistently upset by unreasonable behaviour and offensive conduct. We must achieve a balance and that is what we have done.

The Minister's point about the gardaí having nothing better to do than to annoy and arrest young people is a misinterpretation of what I said. I would like that to be understood. I said it was essential that a warning be given. Regarding the elderly couple mentioned by the Minister, it is amazing that no action has been taken against those thugs. The Minister should inform the gardaí in her area that they should take action against those people by binding them to the peace. They are entitled to do so. If the Minister gives me the name and address of these people, I will tell them what procedure to adopt. If what the Minister said is correct — I do not doubt that it——

How does one identify the people?

If they are there on a regular basis, surely the gardaí could keep an eye out for them. The gardaí are capable of catching these people; their crime detection rate is good. That type of behaviour should not be tolerated. Those singing outside the homes of elderly people playing ghettoblasters should be bound to the peace.

That is going on throughout the country.

There are laws and they should be used. Such people should be bound to the peace.

Senator Crowley asked if they had to receive a warning beforehand.

Those playing a ghettoblaster outside houses late at night could be bound to the peace without a change in the law. It is farcical that no action has been taken in that situation. It should have been taken long ago. In this instance a warning should be given. This would be in the interest of honest, respectable young people. The Garda would also welcome this amendment.

Amendment put.
The Committee divided: Tá, 11; Níl, 29.

  • Burke, Paddy.
  • Cotter, Bill.
  • Cregan Denis (Dino).
  • D'Arcy, Michael.
  • Doyle, Joe.
  • Enright, Thomas V.
  • Honan, Cathy.
  • Manning, Maurice.
  • Naughten, Liam.
  • Ross, Shane P.N.
  • Sherlock, Joe.

Níl

  • Byrne, Seán.
  • Calnan, Michael.
  • Cashin, Bill.
  • Cassidy, Donie.
  • Crowley, Brian.
  • Daly, Brendan.
  • Fahey, Frank.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Gallagher, Ann.
  • Henry, Mary.
  • Hillery, Brian.
  • Kelleher, Billy.
  • Kelly, Mary.
  • Kiely, Rory.
  • McGowan, Paddy.
  • Magner, Pat.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • Norris, David.
  • O'Brien, Francis.
  • O'Kennedy, Michael.
  • O'Sullivan, Jan.
  • O'Toole, Joe.
  • Ormonde, Ann.
  • Roche, Dick.
  • Wall, Jack.
  • Wright, G.V.
Tellers: Tá, Senators Burke and Doyle; Níl, Senators Mullooly and Magner.
Amendment declared lost.

I move amendment No. 7:

In page 5, subsection (3), line 16, after "or" where it firstly occurs, to insert "serious".

This is a small amendment which is quite subjective. The subsection states: "annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour". This is a serious offence and should be referred to as "serious annoyance". It is quite straightforward. There are many types of annoyance but it should be of a serious nature before a charge is brought.

I think where the Bill states "serious offence or annoyance" it includes serious annoyance. However, in case there is any doubt I am prepared to accept the amendment.

Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."

Section 5 states: "a fine not exceeding £500." What is the minimum fine?

There is no minimum. The fine can be anything less than £500.

It is at the discretion of the judge.

I think that is a more serious problem than the one we have just spent a great deal of time discussing. I have always said, and many have agreed, that it is important that people pay fines in order to prevent future crime, as Senator Enright said. There should be a minimum fine because a judge may impose a fine of £10, £15 or £20, which is a small amount to many young people. It is a lot more to their parents, who cannot afford it because they are trying to rear a family.

Are we prepared to consider saying that people must pay a certain amount? The law can fine people who annoy others on the street or have radios on outside. With all due respect, I do not think that this Bill will make the law any more effective. However, people will be affected if money is taken out of their pockets and has to be paid by a certain time.

A minimum amount should be specified in the Bill. However, it should be at the judge's discretion, for example when dealing with an unemployed person. There are many unemployed people, but there are also many people who have money for other things. They can cause a lot of trouble and walk out with a £10 fine. This contrasts with a section in another Bill where if a person goes outside the white line they will be banned from driving. Let us be realistic here. As many people, including the Minister, have said, it is important that these people are hurt in their pockets. In ensuring that this Bill is constructive and tight, can we not specify a minimum fine of at least £50?

I congratulate the Minister on introducing fines instead of custodial sentences in this area. As we all know, prison places are being taken up in cases where a fine seems to be a far better penalty and a more effective deterrent. On the question of a minimum fine, it is a fundamental part of our sentencing and penalising procedure that no minimum should be set on a sentence or fine. The discretion must be given to the Judiciary to decide and to take mitigating circumstances in individual cases into account. I would totally object to Senator Cregan's suggestion on this point because it does not allow flexibility to judges in the deserving cases which come before them who will not be able to afford to pay a minimum fine.

I agree with Senator Crowley. It would be dangerous for the Legislature to require any member of the Judiciary to impose a minimum fine and whether that would be £2, £10 or £50 would not make any difference. It is better to leave it to the discretion of the judge, who is the only person who will be in possession of all the facts in relation to any particular case.

I understand Senator Cregan's frustration when he talked about persistent offenders and people who do not mind paying £100 or £50 because it is paid by their parents. We discussed this earlier in the context of a proposal by Senator Mooney in relation to sentencing and community service orders. As I said then, a custodial sentence or a fine very often makes little difference to somebody of the type about whom the Senator is talking. Service in the community in which they have been offending may be a far greater humiliation and threat to them than any fine or custodial sentence. We are awaiting the final report of the Law Reform Commission on sentencing. At the moment we cannot impose a community service order in these circumstances as a community service order is only imposed instead of a custodial sentence. I would not be prepared to impose a minimum fine. It is better to leave it to the discretion of the Judiciary in all cases.

This section, which refers to threatening, abusive or insulting behaviour in a public place, seems very similar to section 4, which deals with intoxication in a public place. I appreciate that a person could indulge in threatening, abusive or insulting behaviour in a public place and be cold sober but I ask why it was decided to have two separate sections rather than incorporating the two situations in one section. The use of threatening, abusive or insulting words is open to a subjective interpretation. For example, politicians in a public place during an election campaign may, depending on the side of the House from which they come, interpret the comments of others as being threatening, abusive or insulting.

An Leas-Chathaoirleach

I would hope not.

The comments could relate to Government policy, party policy or other activities. I appreciate it may sound a little farfetched. I am sure Members on all sides of the House know of Speaker's Corner in Hyde Park, London. Senator Cregan would be particularly knowledgeable in this regard as I understand he visits it during his frequent visits to London. Perhaps that gives him the marvellous turn of phrase he can produce here in the House. Speaker's Corner is sometimes referred to as the biggest open air lunatic asylum in the world, because one can literally say and do what one likes. It was introduced because much of the law in England was directed towards keeping down the population. The law was intended to prevent the population from criticising——

An Leas-Chathaoirleach

I ask the Senator to confine himself to section 5 and making a Second Stage speech.

Senator Mooney is good on any stage.

Could I have some guidance, a Leas-Chathaoirleach?

An Leas-Chathaoirleach

We are dealing with section 5.

Forgive me. My thunder was about to be stolen but I will keep it for later.

Question put and agreed to.
SECTION 6.

An Leas-Chathaoirleach

Amendment No. 9 is an alternative to amendment No. 8 and both may be discussed together.

I move amendment No. 8:

In page 5, subsection (1), to delete all words from and including "abusive" in line 19 down to and including "occasioned" in line 21 and substitute "or intimidating conduct or conduct likely to incite violence with intent to provoke a breach of the peace".

Senator Mooney has taken some of my best lines on this section. It is difficult to define "abusive or insulting words." As Senator Mooney said, comments may be made about policies or individuals during political discussions which some people may regard as abusive or insulting. I would not like to see someone who used some abusive words in such circumstances fined £500 or sent to jail. One must maintain some element of commonsense. There are comments made about individuals on radio and television programmes such as ITV's "Spitting Image"——

And "The Late Late Show".

——which would certainly be insulting to the people concerned. Some of Dermot Morgan's comments have raised some hackles, but they are intended to be witty and humorous. Much of what Frank Hall said in his time from 1973 to 1977——

It helped you along.

It caused hardship.

One should ask Michael O'Leary about some of the things that were said about him at that time. They were near enough to being abusive and insulting. Similarly, Dermot Morgan hit people hard. But in a democracy there is an exchange of views, much of it humorous, and we must be careful to continue to allow that type of discussion. It is subjective and many caricatures may be regarded as being insulting to the people involved.

The section contains the phrase "in a public place...with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned." If Dermot Morgan were to say some of the things he has said on television and radio in a pub on a Saturday night, there is every likelihood that it would lead to an altercation. One has to be careful and the wording in my amendment —"threatening or intimidating conduct or conduct likely to incite violence with intent to provoke a breach of the peace"— is more reasonable. One has to take account of ordinary banter such as one hears at hurling matches all over the countries where referees are called things on occasion which certainly are not parliamentary or praiseworthy.

An Leas-Chathaoirleach

I hope you are not going to put them on record.

(Interruptions.)

People must be allowed an opportunity to give vent to their feelings, whether it is a sporting occasion, a political occasion or anything else. It is too harsh to impose a £500 fine or a three month prison sentence on somebody who used insulting words and I ask the Minister to reconsider.

I am very grateful to you, a Leas-Chathaoirleach for your guidance. I thought the section had been agreed when in fact just the amendment had been agreed. Forgive me for that. I thank the Minister for pointing out that I was ahead of myself. It is not the first time I have ended up with egg on my face and no doubt it will not be the last. I will encapsulate what I had said. The Minister might clarify the reasoning behind this section. I appreciate what Senator Enright is attempting to do — to water down what seems to be very stringent provisions in this section in relation to threatening, abusive or insulting behaviour in a public place. What I was attempting to do, by comparing the reality of Speakers Corner at Hyde Park, was to suggest that perhaps it might be an idea for some enterprising individual to set aside a designated park which could be an Irish Speakers' Corner. Then, in the event of this legislation being passed, if anybody felt upset at the implications of it, all they would need to do is travel to the designated place and insult anybody for as long as they liked.

It might be helpful if first I were to do as Senator Mooney asked and give some of the background to section 6. Section 14 (13) of the Dublin Police Act, 1842, makes it an offence to use "any threatening, abusive, or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned." The penalty is a maximum fine of £2 and the Law Reform Commission proposed that the offence be updated and that it subject to a term of imprisonment of up to six months. What has been done in this section of the Bill does not introduce a new concept to the law, but we are trying to make the law reflect modern realities and to impose appropriate penalties in cases of such behaviour. This provision is to be taken in conjunction with the power being given in section 8 to the Garda to move on people who are misbehaving in this way. We give the Garda Síochána effective powers to deal with the types of problems with which, unfortunately, we have become all to familiar. This provision will be of especial use in dealing with problems in O'Connell Street when gangs of youths congregate and act in a threatening and insulting way to passers-by.

An important point which I should emphasise is that we are not creating a new offence here. It is a matter for the courts to decide whether a particular form of behaviour or words is threatening, abusive or insulting. The behaviour must be with intent to provoke a breach of the peace, or be reckless as to whether a breach of the peace may be caused. The Bill as originally published included the words "or whereby a breach of the peace may be occasioned". To meet the concerns which were expressed this was amended to being "reckless as to whether a breach of the peace may be occasioned". Accordingly a person who engages in a protest who does not intend to provoke a breach of the peace, like Senator Enright, and is not reckless as to whether a breach of the peace may be occasioned, like Senator Mooney, has nothing to fear from this section. That is as far as I could reasonably go in moderating the threshold at which the offence would be committed and I would not be happy with amendment No. 9, which would delete the provision in relation to recklessness.

In relation to the breach of the peace, the Law Reform Commission, while acknowledging that historically the concept has lacked an authoritative definition, referred to a case in the Court of Criminal Appeal where it was said that in order to constitute a breach of the peace an act must be such as to cause reasonable alarm and apprehension to members of the public. The view of the Law Reform Commission was that the wording in the 1842 Act had stood the test of time well and that it should be retained. I believe that the words "abusive" and "insulting" should remain in the section. I do not accept that the word "intimidating" would add anything to the word "threatening" already included in the section. On a general point, I cannot accept that there is an absolute right for people to go around abusing and insulting others and indeed if there is a basic right involved it is to be free to be able to go about one's business without being abused or insulted. In the circumstances therefore I regret that I cannot accept either amendment.

In regard to this amendment, I am a little concerned in regard to political protest in this instance and again in section 7 in regard to the distribution of literature. There are occasions on which people in public life are caricatured. It is part and parcel of democracy. I am bringing this matter to the attention of the House in the hope of having these amendments agreed to. There are situations where people make comments which are abusive in ways, but to have a fine of £500 or three months in prison for such offences is very punitive. I am concerned about it. I see the point the Minister is making. There are occasions where there are gangs of youths and it is necessary to be able to tackle those people and make sure that they are not allowed to insult people and use foul language at passers-by. I feel that my amendment, which reads "or intimidating conduct or conduct likely to incite violence with intent to provoke a breach of the peace" is nearer to what is necessary in this instance.

The second amendment I put down reads "or being reckless as to whether a breach of the peace may be occasioned." In regard to the first part of the measure, the State has to prove that there was intent to cause a breach of the peace. The second part of the measure, "or being reckless," is very open and subjective. That is why I felt it might be deleted. I see the Minister's viewpoint, but I feel that this is essential because of the nature of the penalties imposed. The fine was £2 and it has been increased to £500 and three months in prison. It is certainly above the consumer price index, even though the Act was enacted in 1842.

I wish to support the Minister on this. I accept that she is talking about a serious matter in this instance. We were talking earlier on of giving powers to the Garda where they are powerless to act and she said that the Law Reform Commission recommended that fines imposed by the 1842 Act should be updated. They recommended six months. After this had been debated in the other House the Minister reduced the six months to three months and she was willing to go some of the way to allay people's concerns. I agree with her in this case. I oppose the amendment.

I would like an assurance from the Minister in regard to political protest. That is the point that I am concerned about. As long as that is safeguarded I am happy to go along with the Minister.

I hope I am not misunderstanding the Senator. I hope he is not suggesting that during the coming months there will be such intense political pressure from his side of the House that some of us might be occasioned to provoke a breach of the peace.

Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Section 6 agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

In regard to section 7, I am concerned about protest marches. At many of these protests humorous placards are displayed. People gave a lot of thought to them. Some of them convey messages which the party in Government would find insulting but which the Opposition would find humorous. I would not like to see people arriving with placards outside Leinster House or anywhere else and finding that they can be charged with an offence because some of the material they were using was abusive or insulting. Everyone in the House would support restrictions in relation to obscene material. I am against some of the placards used on occasions, but we need to ensure that legitimate political placards are excluded.

They are excluded. It will be a matter for the courts to identify and interpret what is abusive, threatening, insulting or obscene. One area we want to tackle and which got a lot of airing when we discussed it in the other House involves criminal gangs who operate in a certain area. They are identified to the gardaí by a family and they then decide to write graffiti, draw obscene posters, deliver anonymous leaflets and so on. We cannot allow this to continue without that family having some means of recourse, with the support of the gardaí. We are not talking about legitimate protesting or creative headlines on a placard, but about specific instances where the gardaí must be given the power to deal with it.

Question put and agreed to.
NEW SECTIONS.

I move amendment No. 10:

In page 5, between lines 32 and 33, to insert the following new section:

"8.—On conviction for an offence for the purposes of sections 5, 6 and 7, the Judge of the relevant court of jurisdiction shall be authorised to obtain or receive evidence or submissions concerning the effect of the offence on the injured party and whether such damage, injury or trauma will result in permanent damage to such injured party.".

A judge should be entitled to ascertain the type of damage the injury caused to the individual and whether it was of a temporary or permanent nature before he passes sentence on a person convicted of such an offence. This amendment would allow the judge full knowledge of the seriousness of the offence and he would be entitled to obtain or receive evidence or submissions from any relevant person.

I have examined the Senator's amendment and having given the matter detailed consideration, I regret I cannot see that the amendment would achieve anything of value beyond what is already in place. When we discussed this on Committee Stage in the other House I indicated that section 5 of the Criminal Justice Act, 1993, already provides that in determining the sentence to be imposed on a person for specified offences a court shall take into account and may, where necessary, receive evidence or submissions concerning any effect of the offence on a person in respect of whom the offence was committed. Among the offences to which section 5 of the 1993 Act applies are offences involving violence or the threat of violence to a person. This means that any of the offences dealt with in the present Bill which involve violence or a threat of violence to a person will be subject to the provisions of section 5 of the Criminal Justice Act, 1993.

While I appreciate the thinking behind the Senator's amendment, I do not believe there would be any advantage in providing in this Bill that a court may receive evidence regarding the effect of an offence under sections 5, 6 and 7 on the victim. This is the current position in relation to all offences and, as I have indicated, special measures have been adopted where an offence involves violence.

Furthermore, we would all be concerned that by adopting this amendment the Oireachtas would, in some way, give out a signal that only in cases which came within section 5 of the Criminal Justice Act, 1993, or within the terms of the Senator's amendment could a court seek evidence to establish the effect of an offence on the victim. What the Senator wants to achieve is already in existence and we do not want to give out a wrong signal during the course of the debate on this Bill.

I tabled this amendment because it is essential for judges to obtain evidence, properly documented and supported, when they are deciding what penalties should be imposed. Many people were anxious to include this in the Bill. However, I note what the Minister has said and I will not press the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 5, between lines 32 and 33, to insert the following new section:

"8.—Where a person or persons are convicted of an offence for the purposes of sections 5, 6 and 7, the court shall be empowered to make an order directing the convicted person or the parent or guardian or the person acting in loco parentis to pay compensation to the injured party either by lump sum payment, or by instalments, or if the court deems suitable by both methods so as to adequately recompense the injured party.”.

Many people who allow their children to become involved in crime manage to escape the responsibility. This amendment would make parents more careful about the conduct of their children. They would be responsible for looking after their children and if they committed an offence they would have to pay for it. In addition, the injured party should be entitled to receive full compensation for their injury. This method would make the parents of children liable for the expenses, costs and compensation. This amendment is desirable.

While I appreciate the Senator's concern, there is no need to include in the Bill a provision along the lines of his amendment. This is because section 6 of the Criminal Justice Act, 1993, allows a court on conviction of any person of any offence to make an order requiring the offender to pay compensation in respect of any personal injury or loss resulting from that offence to any person who has suffered such injury or loss. Section 6 of the 1993 Act will apply automatically to all offences under the present Bill. Section 6 also provides for the payment of compensation by parents and guardians in respect of offences committed by juvmonsense eniles and, in addition, allows compensation to be paid by instalments.

I would like to mention that although the Senator's amendment refers to the payment of compensation by parents and persons other than the offender, it does not require that the offence be committed by a juvenile. Thus under the terms of the Senator's amendment the parents of any offender of whatever age could be ordered to compensate a victim. I am sure that was not the Senator's intention. What he is trying to achieve is already covered under the Criminal Justice Act, 1993, in the same way as the previous amendment. For that reason, there is no necessity to include it in this Bill.

I have listened to what the Minister has said. I was aware of the relevant section in the Criminal Justice Act, 1993. However, I felt it might be important to include it for the purposes of this Bill. The Minister has confirmed it is covered by section 6 and I will accept that. I will withdraw the amendment.

Amendment, by leave, withdrawn.
SECTION 8.
Government amendment No. 12:
In page 5, subsection (1), line 36, to delete "6, or 7" and substitute "6, 7 or 9".

This is an amendment which I undertook to bring forward in response to suggestions made in the other House. Its effect would be that the powers of the gardaí to issue directions under section 8 would now also apply where they suspected that an offence was being committed under section 9, which deals with wilful obstruction. For example, if the gardaí were dealing with people who were blocking a road, it would be appropriate to have the option of directing them to desist, rather than having to charge them. In these circumstances, potentially difficult situations might be defused without the necessity to resort to the full rigours of the criminal law. I might also mention that we are not providing an automatic power of arrest under section 24 for offences of wilful obstruction, but that power of arrest would be there if a person continued to obstruct after a direction from the garda to desist.

Amendment agreed to.

I move amendment No. 13:

In page 5, subsection (1) (b), line 37, after "excuse" to insert "or for the purposes of a public protest or political demonstration".

I would be anxious that this would be allowed because you can have people who are waiting to have a protest. If a garda wishes to have somebody moved on in this instance, this amendment will provide a safeguard regarding public protest or political demonstration. As of now I do not see any problem with this matter and in our democracy we have no current problems of the kind. However, something of this nature going on the Statute Book could lead to a situation some years down the road where public protests or political demonstrations involving people congregating could be deemed unlawful. This amendment, therefore, would provide a necessary safeguard.

The problem which we are trying to address under section 8 is the difficulty for gardaí in relation to persons loitering with intent to commit a crime. As the Law Reform Commission pointed out in its report on vagrancy and related offences, the effect of the Supreme Court decision in the King case in 1981 was that all that portion of section 4 of the Vagrancy Act, 1824, which relates to the loitering with intent offence is no longer part of Irish law. The commission recognised the difficulty of framing a new type of loitering offence. This would be likely to be susceptible to the same kind of challenge which succeeded in the King case. In the circumstances they did not recommend a new loitering with intent offence.

While recognising the real difficulties which the Garda face in this area, the Government concluded that it would be unwise in all the circumstances to attempt to provide for a general loitering type offence. However, in an effort to address the problem the Garda are being given powers under section 8 to direct people loitering in a public place in circumstances which give rise to a reasonable apprehension for the safety of persons, or the safety of property, or the maintenance of the public peace.

The section is not aimed at public protests or demonstrations. However, I am not in a position to accept the Senator's amendment because I cannot accept the proposition that the Garda should not be in a position to intervene where people are gathered, for whatever purpose, if they do so in circumstances that give rise to a reasonable apprehension that the safety of other people, property, or the maintenance of the public peace is at risk. There are, of course, constitutionally protected rights of freedom of assembly and so on and, by definition, they will not be affected by this legislation; but I think it would be unreasonable to suggest that such rights extend, for example, to jeopardising the safety of others.

I am making the point that this legislation will be on our Statute Book. Section 8 (b) reads:

.......without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace,

There would be absolutely no danger in regard to a political protest or demonstration of one form or another. My amendment refers to "a public protest or political demonstration" and having that included would be a safeguard. How Governments act at a particular time varies. You could have people in the future who wish to prevent demonstrations and who may seek to use legislation of this type to do so. I go along fully with the section and am not opposed to it. I appreciate the situations with which the Garda are often confronted. I fully support what the Minister has outlined in her reply as well as what she has said in the Dáil. The amendment is just a safeguard to exempt protests from the Bill. We must be sure of what goes onto the Statue Book and so this amendment is a desirable safeguard.

May I ask the Senator if this amendment is being pressed?

I am not pressing it to a vote.

Amendment, by leave, withdrawn.
Section 8, as amended, agreed to.
NEW SECTION.

I move amendment No. 14:

In page 6, between lines 11 and 12, to insert the following new section:

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

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

I am anxious that legislation of this nature would not prevent the legitimate right of citizens to place pickets, protest or assemble in a peaceful manner. An amendment of this nature would be desirable. I see the point of what the Minister is trying to achieve. It is important that people should be allowed to go freely about their lawful business without restriction. We go along with the section, including the Minister's figure of £200, but this safeguard should be included because we have always had the right to picket in a peaceful and proper manner. That is exactly what this amendment is attempting to safeguard. Workers and others who feel they have genuine grievances should be entitled to display their objections through peaceful pickets and the amendment is necessary for that.

I would have had serious concerns about this section, such as outlined by Senator Enright, but for the amendment the Minister moved under section 8, where section 9 has now been included along with sections 4, 5, 6 and 7. In effect, it is a fail-safe mechanism that creates a breathing space for the Garda authorities if they are in a situation where there might be a possible abuse of the law or a conflict is developing. Then, rather than going straight for the jugular and charging people, they will now be required under the Government's amendment to request that the person or persons so suspected desist from acting in such a manner and leave the vicinity immediately in a peaceful and orderly manner. I am satisfied with that insertion because were it not there, I would have been concerned.

Fortunately, we in this country have avoided the worst excesses of industrial unrest, as witnessed in Britain when the vast powers of the State were brought to bear on the miners during the 1984 strike. The legacy of that is seen in British society today and it will be there for a long time to come. I believe that it probably created a cleavage between the public and members of the working class, who traditionally had a respect for law and order. That broke down as a result of bringing the vast panoply of State power to bear on the miners by using the police as agents of the State in that dispute.

Our culture is different. While I do not anticipate that we would face such excess, there was a fear that if the amendment was not made, it could occur at some future date. As Senator Enright pointed out, we are discussing the law as it will be interpreted until such time as it is repealed — and the Minister referred to legislation which appears to have been copied word for word from legislation in 1842. The Minister has recognised that there could be an area of potential conflict between the Garda and the public in the context of industrial unrest or protest. There is a fail-safe mechanism in the legislation which requires the Garda to take certain steps prior to charging people with offences in that context. In that respect I would not favour the amendment.

Section 9 states "without lawful authority or reasonable excuse". That covers the situation Senator Enright is attempting to deal with in his amendment. Let us not forget also that the difference between Ireland and England, where the State could introduce powers for use against the miners' strike, is our written Constitution. The Constitution allows for the right of association, the right to strike and the right of dissociation. Therefore, any laws enacted which would adversely interfere with that right would be invalid on a constitutional basis. There is no need for Senator Enright's amendment. The area is covered by the content of the section and by the overriding power of the Constitution.

I support subsection (2) of the amendment, which refers to the question of assembly and picket. I would have liked to have been here earlier, but unfortunately I was obliged to attend the Joint Committee on Foreign Affairs. On my way past my office I picked up about six letters which I have with me. They are from members of the public, of whom one is a retired Army officer. All express real concern — which may be misplaced but is genuine — on the part of a wide section of the public that the capacity to picket may be restricted under various sections of this Bill. One or two of the sentiments expressed refer to earlier sections of the Bill which I, unfortunately, will not have the opportunity to discuss until Report Stage.

There is widespread concern that sections of this Bill could operate against the right of ordinary citizens to picket. Subsection (2) of Senator Enright's amendment states:

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

If it reassures the public, it is a good amendment. The sense of that subsection is unarguable. I do not believe that the Minister wishes to curtail the right of the public to protest or picket and I am not sure that the wording in subsection (2) is offensive to the Bill. I notice that there is a note after the amendment which states: "Acceptance of this amendment involves the deletion of section 9 of the Bill". Would that be true if subsection (2) only of the amendment were accepted? The meaning of Senator Enright's amendment echoes a widespread public concern, which I share to a certain extent.

The wording of subsection (1) of the amendment is almost identical to the wording of section 1 of the Bill. Therefore, what is mainly at issue is the insertion of subsection (2). There would be technical, legal difficulties in accepting that part of the amendment. The only interpretation which a court could put on the phrase "legitimate right of citizens to picket" and so forth would arise in the context of constitutionally protected freedoms. It would be unprecedented. Clearly it is unnecessary to put in the legislation something which amounts to saying no more than that the legislation, or part of it, is subject to constitutional rights. As Senator Crowley said, all legislation is subject to constitutional rights. While I appreciate the thinking behind the amendment, I hope the Senator can accept that it would not be appropriate to include such a provision in the Bill.

On the more general point, I cannot accept that there is an absolute right for people to obstruct the free passage of persons and vehicles. If anything, the presumption should be in favour of the right of people to travel unobstructed.

It is impossible to take this matter in isolation. I accept the Minister's good intentions, but the letters I have received couple this section with section 6. If there is not an explicit protection of the right to picket and protest peacefully and there is a section which makes it an offence to use insulting or offensive language or engage in insulting behaviour, there appears to be a serious limitation on the right of the public to exercise its right to picket and protest. The Minister says that this is redundant because the right to picket and protest is already guaranteed. That may be so, but if something is redundant it is surely not damaging to the Bill. Therefore it could be accepted as a placebo, because the public is clearly concerned.

I regret that I was not here for the discussion on section 6 because there may be a concern that the interpretation of words such as "insulting" or "offensive" can be very wide. In my time I have carried placards which a large number of people would consider insulting and offensive. I hope that my right to continue to carry such placards will be sustained. Perhaps if for nothing more than a public relations exercise, there is a necessity for its inclusion. I do not often get so many letters on a subject of such a technical nature. They are not from cranks or from those who are dismissed as "do-gooders".

I thought the Senator said he did not know them. How does he know they are not cranks?

They are from former military gentlemen.

The Minister has correctly stated that the section as outlined in the Bill and the first subsection of my amendment are similar. In the course of a normal picket people walk up and down in front of the gates of, perhaps, a building. It can be stated that people walking in front of the gates are wilfully preventing or interrupting the free passage of people through the gate. In fact, cars and lorries are usually allowed to travel back and forth. Only on rare occasions have vehicles been prevented from going in and out of buildings. The history of industrial relations in Ireland has been excellent. It is important that this safeguard would be included.

It was stated that a constitutional action could be taken on this matter, but I do not think we are anxious to have a constitutional case taken. My amendment could not be fairer. It refers to the "exercise of the legitimate rights of citizens to picket, protest, or assemble in a peaceful manner." If one wanted to devise words to be fair and reasonable one would have to go a long way to get a better wording than I have used. Senator Crowley referred to constitutional rights. When one examines the number of cases which have been taken to safeguard constitutional rights, it clearly indicates the necessity for this amendment. If the Bill is passed without this amendment people may have to go the Supreme Court later to have this legislation tested. There will undoubtedly be quite an amount of litigation arising from this Bill.

This subject is Senator Neville's brief and, unfortunately, he is unable to be present today. Most of the correspondence has been addressed to Senator Neville. I have received only a few letters about this Bill and they were circulated to nearly all Senators. I have not received the same volume of correspondence as Senator Norris. There are many people who are supportive of this Bill. They feel it is time there was a Public Order Bill and that vandalism and blackguardism were properly stamped out. There are others, however; perhaps they are the do-gooders, but on occasion some of the do-gooders are right. In this instance, according to the comments I have received, there is genuine concern that in a few years' time an effort might be made to prevent the right of peaceful protest or assembly. This amendment does not ask a lot and Senator Norris made the point that it might only be taken as a goodwill gesture. While it may be that, its specific inclusion will make many people happier about having the right to assemble in a peaceful manner and the right to picket and protest.

I will be brief and harp back to the point I made earlier regarding the constitutional rights that are protected. The inclusion of subsection (2) of Senator Enright's amendment would narrow the ambit of the constitutional rights that already exist. The existing constitutional rights may be broadened by judicial interpretation and cannot be narrowed because of Supreme Court decisions in two cases which I can remember. One case involving CIE and the other involving the INTO have guaranteed the right to picket and the right to pass a picket. Therefore, it would be a retrograde step to have this subsection in the legislation.

I cannot understand Senator Crowley's remark that this could narrow somebody's constitutional rights. I cannot understand how legislation could do that. I would like to support Senator Enright's amendment because there are many people who are concerned about this matter. The Minister herself has talked about concerns for civil liberties. There is great support for this Bill in general but to allay the fears of those who are concerned the Minister should show goodwill by accepting this amendment.

In response to Senator Honan, the constitutional rights can be limited by legislation. The Constitution allows for that. It is only in the case where the Supreme Court decides what rights are contained in an Article of the Constitution that they cannot subsequently be limited.

I am only glancing through my correspondence but I would like to place on the record one of the letters, which quotes a wide range of sections. It says:

This Bill is too vague and so broad in nature (especially sections 5,6,7,12,14 and 15) that we are justifiably concerned for our future rights to campaign, lobby and peacefully demonstrate, within the system.

The letter is signed by Mr. Tim Crowley. Obviously, there are differences between the Crowleys.

He is from Portlaoise and is no relation.

A list of groups are mentioned in the letter — The Laois Peace and Justice Group, Irish National Congress (Laois Branch), Laois Resource Group, Environmental Action Alliance — Ireland, Laois Unemployed Alliance and the Hillview Drive Residents and Tenants Association.

I received another letter form the Irish Nicaragua Support Group that refers to the question of the right to peaceful picketing which many people appear to feel is threatened. In particular the Irish Nicaragua Support Group, of which I am glad to have been a member for many years, makes the point that it has a history of peaceful protest and——

I do not think it is in order to refer to individuals, whereas it is quite in order to refer to the fact that correspondence had been received. However, to refer to individuals is not in order.

I understand, but unfortunately, as the poet Omar Khayyam said, "The moving finger writes and, having writ, moves on." We cannot call it back and it is probably on the record now——

That is not good enough.

I doubt that the gentleman in question would be other than pleased, but I regret my momentary and unpremeditated lapse.

The Senator has been warned.

Yes, I have been warned. I hope I will not be fined £500 or even sentenced to community service.

We could think of many things for the Senator.

I wanted to place on the record that there are a number of groups and people who are concerned. Perhaps on Report Stage I will come back to some of the points made, which may be more relevant to an earlier section of the Bill, although the general sentiment applies here. A wide range of groups, some of which I would have little in sympathy with, feel concerned that the right of freedom of expression and peaceful protest is being limited by this in a number of ways.

May I say in passing that I am supporting a right of which I have been the victim? I have had my own house picketed by the Povisional movement. Unfortunately, I was not there to welcome them, as they would have been welcome. I was also picketed by the Relatives for Justice and Peace on the basis that I had refused to be interested in the Feargal Caraher case the day after I had agreed to take part in an independent inquiry. As far as I am concerned, they are welcome to picket and it is an important right we should all have.

I listened with interest to Senator Mooney. He spoke about the situation in Britain some years ago at the time of the coalminers' strike and the problems it caused in homes. I am friendly with one family whose father was a coalminer and they take their politics seriously in Britain. The family were solid Labour supporters, but prior to one election the son announced that he was going to vote for the Conservative Party. He did so and following that his father did not speak to him for two years, and that was compounded further by the coalminers' strike. This is an important point since we are speaking about pickets and peaceful protest.

We agree that a person should not be allowed to wilfully obstruct anybody, but this amendment seeks to allow people to assemble in a peaceful manner and to exercise the legitimate right to picket or protest. This will be law in a short space of time — one month after the passing of this Bill. A situation might arise in a few years' time when we have a strong Minister for Justice. He might decide——

He or she. Is the Senator suggesting a woman could not be strong?

Given the way the Minister's star is rising I would have thought she would have long since risen to a higher office.

There could be another woman.

Progress reported; Committee to sit again.
Top
Share