Criminal Justice (Drug Trafficking) Bill, 1996: Report and Remaining Stages.

Senators may speak only once on Report Stage, but the proposer of the amendment may reply to the discussion. Each amendment must be seconded.

I move amendment No. 1:

In page 6, to delete, lines 49 to 52 and substitute the following:

"(b) (i) The Minister may make regulations for the treatment of persons detained pursuant to this section, whether in a Garda station or in a place of detention.

(ii) Such regulations shall include provision for the assignment to a member of the Garda Síochána (not being a member who was involved in the arrest of the person) of responsibility for overseeing the application of the regulations in respect of that person, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.

(iii) Such regulations shall provide for the making of an audiovisual record of any interview between a person detained pursuant to this section and a member or members of the Garda Síochána, and of any physical examination of such person.

(iv) Such regulations shall provide for the provision, to a person detained pursuant to this subsection, of access to a solicitor.

(v) Such regulations shall provide for the provision of medical treatment for persons detained pursuant to this section who have, or who appear to have, a physical dependence on controlled substances.

(vi) A failure on the part of any member of an Garda Síochána to observe any provision of such regulations shall not of itself render that member liable to any civil or criminal proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him or her.

(vii) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to any disciplinany proceedings.".

On Committee Stage the Minister of State said that the Martin committee was established in 1990 and that the steering committee established in 1993 published an interim report in 1994 recommending that video recording should be carried out on a pilot basis at four Garda stations. He also stated that as only 10 per cent of accused persons in these cases volunteer to be the subject of video recordings it would be difficult for the committee to reach conclusions, but that its recommendations would be implemented as soon as they are published. As only a small number of accused persons are volunteering to use the audio-visual equipment, it will be some time before the committee can reach conclusions. It is unacceptable that the necessary safeguards are not inserted in the legislation.

I second the amendment and reserve the right to speak later.

The official phrase used when a committee reports is that it will be "acted upon". If the committee did not make a recommendation, there would not be anything to implement. The correct phraseology is "acted upon". The points raised by the Senator are similar to those raised on Committee Stage. Short cuts cannot be taken in this matter. The best way to proceed is to allow the expert committee to complete the pilot scheme and make recommendations on the introduction of a general scheme. Having set up the procedures to carry out a pilot scheme, it would be odd if the Minister decided not to-await the recommendations. It would also be a slight on those involved in the committee. Therefore, the position will not be changed.

I do not propose to rehash the arguments made on Committee Stage. Expert committee reports are usually a recipe for deferral. This provision should be incorporated in this fundamental legislation. Advances in technology must benefit all areas of State activity, including the criminal justice system. It would be of assistance in ensuring that justice is not only done but is seen to be done. It would remove any ambiguity as to what took place or was alleged to have taken place during interview. For those reasons it is important that the amendments be included in the Bill.

I am always concerned when I hear Ministers talk, as they frequently do, about the possibility of a measure being unconstitutional and saying that the Attorney General or another leading legal person has advised that an aspect of a Bill is unconstitutional and, therefore, amendments should not be made. I often wonder if that is a good basis for not pressing amendments. Sometimes it is no harm to test the constitutionality of a Bill. It is open to the President, if she sees fit, to refer a Bill to the Supreme Court even if we in our wisdom regard it as constitutional. I recommend to the Minister that he consider this amendment sympathetically. There is little difference in our views in terms of the principle involved; it is the exercise of the principle, that is, how we should proceed from here, that is at issue. The Minister wishes to refer the matter to the expert committee whereas we would prefer to proceed with it because it is the right thing to do.

I am surprised that only 10 per cent of those who were asked to volunteer did so. I do not know what the implications of that will be, but it is an interesting statistic. An expert committee has been set up to report on this matter. We are introducing a new system which is a departure from the usual procedure and we must get it right. There were good reasons for the setting up of the expert group.

On Senator Dardis's point about the constitutionality of Bills, I agree with him to an extent. Some very good Bills have been put through the House, often supported by all sides, but because a small part of the Bill was found unconstitutional the entire Bill went out the window. Pages of positive improvements have fallen because one section was found unconstitutional. The marital home Bill is one example. We laboured for many weeks on that legislation and our advice was that it might be unconstitutional — Deputy Shatter referred to that matter in the Dáil. One section was subsequently found to be unconstitutional and every other section also fell.

I had hoped the Minister would accept this amendment. It is unacceptable that a matter that was dealt with under a 1984 Act and 1987 regulations is still being considered by committees, with no anticipated time as to when they will report to Government. For that reason I intend to press the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Government amendment No. 2:
In page 9, to delete lines 22 to 28 and substitute the following:
(a) at any time before he or she was charged with the offence, on being questioned by—
(i) a member of the Garda Síochána, or
(ii) pursuant to regulations made under section 6, an officer of customs and excise within the meaning of that section,
endeavouring to ascertain whether an offence had been committed, or by whom, or
(b) when being charged with the offence or informed by—
(i) a member of the Garda Síochána, or
(ii) pursuant to the said regulations, a said officer of customs and excise,
that he or she might be prosecuted for it".

This amendment arises because of the need to put beyond doubt the position where an accused may have failed to answer any question put by an officer of Customs and Excise who was participating in the questioning under regulations made under section 6. As drafted, section 7 refers to inferences which may be drawn where a person failed to mention certain facts during questioning by a member of the Garda Síochána or failed to mention those facts at certain other times spelled out in the section. Since section 6 provides for participation, at the request of the Garda, of an officer of Customs and Excise in the questioning of a person detailed under the Bill, it is necessary to provide that the failure to answer questions put by that officer should carry the same potential consequences, without which the Bill would lose some of its intended effect.

I formally support the amendment.

Amendment agreed to.

Amendments Nos. 3 and 6 are cognate and amendments Nos. 5, 6 and 7, which are cognate, are related.

Government amendment No. 3:
In page 9, line 29, after "his" or insert "or her".

These are merely drafting amendments designed to ensure consistency in gender references between the sections.

I do not agree that is the reason for the amendments. Their purpose relates to being politically correct. We have had long arguments about this matter and I will not detain the House unduly. When debating legislation brought before the House last week by the Minister of State, Deputy Coveney, on semi-State bodies and the ACC Bank, the words "his" and "her" arose in the Bill, and while I agree it is desirable to have both genders equally represented under the legislation, it makes for cumbersome reading. Under the old system "his" was also deemed to mean "her". Perhaps this problem could be overcome by using "her", which could also be deemed to mean "his".

There is such an Act in place.

I suggest that "his" and "her" be included in legislation on an alternate basis.

Amendment agreed to.
Government amendment No. 4:
In page 9, line 31, after "he" to insert "or she".
Amendment agreed to.
Government amendment No. 5:
In page 9, line 36, after "he" to insert "or she".
Amendment agreed to.
Government amendment No. 6:
In page 9, line 48, after "his" to insert "or her".
Amendment agreed to.
Government amendment No. 7:
In page 9, line 49, after "he" to insert "or she".
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass".

I wish primarily to thank the Minister and the Minister of State who dealt with the Bill today. The Minister of State will agree that the House co-operated to the best of its ability in passing this legislation. Broadly speaking, there is consensus throughout the Oireachtas that whatever legislative weapons are required by the forces of law and order to deal with those involved in drug trafficking will be made available. I think the Minister will agree it is rare that such national consensus is arrived at. In building on that consensus, any legislation required to deal with what we on this side of the House regard as a crisis will be supported.

This Bill will send a clear signal to the drugs community that its behaviour is no longer tolerated or accepted in society. This is a short but strong Bill. It is a radical Bill in terms of powers of detention. The slight curtailing of the right to silence deals only with the corroboration aspect. New powers are given to the Customs and Excise in assisting the Garda Síochána and the Naval Service in the fight against drug trafficking which is a scourge and a menace. However, when the people unite against the common foe it is very hard to defeat them. I am very critical of the fact that in this debate there was nobody present from either the Labour Party or the Democratic Left.

I ask the Senator to refrain from mentioning people who are not present to defend themselves.

I did not mention them by name. It has been a central argument of the Fianna Fáil party during this Government that the Labour Party and the Democratic Left have been dragging their heels on all aspects of reform of law affecting the fight against crime. The actions of those parties in relation to bail, prison reform and the prison building programme are a matter of public record. I have been supportive of the Minister for Justice on every occasion on which she has come into this House but this is the first and only criminal justice legislation which this Minister has brought in since February 1995.

It is a sad reflection on the Government that it has managed to produce only one short Bill of some 12 sections on criminal justice legislation. That performance is not good enough; it smacks of complacency and lethargy. This Government must get its act together and put in place the necessary legislative changes. In regard to the related topic of Deputy O'Donoghue's Bill on the seizure and freezing of assets, I ask the Minister and the Government not to put down that Bill by arguing, in some cases spuriously, that the Bill might be unconstitutional or that certain sections of it might be improper. It will be a very good Bill and will aid in the fight against crime.

I welcome this Bill. Fianna Fáil is proud to have played a constructive part in its passing, but unfortunately this Government retains its lamentable record on the new legislation it has put in place in the fight against crime and in particular the fight against drug trafficking. Having said that, however, I commend this Bill to the House.

I am not opposing the Bill. Senator Mulcahy is right in one respect. There is a consensus throughout the country and within the Houses that this legislation is urgent and necessary. There will always be arguments as to the detail and that is where the consensus might not always be evident. It is in that spirit my party moved certain amendments. They would have improved and strengthened the Bill, but they have not been accepted and we accept that as the democratic process in which we participate willingly.

Legislation is only as good as the will to implement it. It is my wish that this Bill is implemented rigorously and that those who have escaped justice and inflicted misery on so many people and rewarding themselves in the process will be brought to justice, convicted and serve long terms of imprisonment. If the Bill achieves that objective it is to be welcomed. No Government of any complexion would ever defeat the will of the people. Our democratic process does not allow that. It might be allowed in the short term but in the long term, if something contrary to the will of the people was done it would be reversed. I hope the legislation will be effective.

I welcome the passing of the Bill which is an important instrument in our fight against drug trafficking. The whole area of drugs is more complex than the area dealt with by this Bill and I welcome the proposals by the Minister for Justice to take care of this.

I disagree with the statement that the Minister for Justice has not been active. She has been more active than any other Minister for Justice in my time in this House and I commend her for that. For many years we discussed the removal of the right to silence to enable the Garda to bring to court information to the effect that people refused to answer reasonable questions and allow an inference to be taken from that. At no time did anybody suggest it should be sufficient to ensure a conviction. This Bill does not do that, it gives a signal to drug traffickers that their time is running out. This and other legislation will ensure that their regime comes to an end.

I concur with Senator Dardis when he says that the legislation is only as good as the will to implement it. It is important that the resources are there for the Garda to implement this legislation. The Minister's recent announcement will ensure that more resources are provided to implement this and other necessary measures, but we must always ensure that adequate resources are available. It will take some time for some of those resources to come on stream but we must ensure that everything is done as quickly as possible to ensure that these provisions to attack this cancer in society are implemented.

The Minister is here on behalf of the Government. My role is to represent all the parties of Government in this House. I take issue with any reference by Senator Mulcahy to Senators from this side of the House not being present, because he was the only Senator to contribute from his party whereas several Senators from other parties contributed.

The entire Progressive Democrats Party in this House contributed.

They did indeed.

Senator, please stick to the Bill.

I am entitled to refute what the Senator said. I thank the Minister for bringing the legislation forward, the Minister of State for being with us today, and the officials who advised the Minister and brought the Bill to conclusion.

On behalf of the Democratic Left I welcome the passage of this Bill. I was watching on the monitor the speeches made by other Senators. I was following the debate. I heard a pompous aristocrat in the person of Senator Mulcahy say that no member of Democratic Left contributed on this Bill——

I ask you to refer to the Senator correctly. He is a Member of this House.

——although I contributed on Second Stage. I listened to the diatribe emanating from this gentleman and the spurious allegations he made against the Minister for Justice on that occasion. He alleged that the Democratic Left was holding up legislation. I deny that. The lethargy on this question applied up to 1992 when everybody knew the crime rate was accelerating and that criminals got away with their crimes scot-free. It is now being tackled and we see the results.

I ask you to withdraw your reference to the Senator.

Quite right. He should not have referred to the Senator as an aristocrat.

Senator Sherlock, I ask you to withdraw your comment.

I have made my comment. We want this House to have a meaningful role. Whatever is put on the record here must be accurate. What the Senator has said is not in accordance with the facts.

I ask you to withdraw your reference to Senator Mulcahy, please.

What reference?

The word the Senator used was "aristocrat".

I am sure on reflection, Senator, you will withdraw it.

I will withdraw it.

I thank each Member who participated in discussing the Bill. On behalf of the Minister for Justice, I acknowledge the support from all sides for the Bill responding to this serious situation.

The necessity for this legislation is now obvious. I reject the suggestion that the Government or any of its constituent bodies has failed. All Government parties have clearly recognised the need to respond to the situation as it has arisen. It is easy to say that if such legislation had been put in place five or six years ago, it would not now be necessary to respond in such rapid fashion.

I spent a great deal of time in Opposition and recall pointing out the necessity for changes in the law to tackle organised crime. Criminal activity has developed to an unprecedented extent. Unless the Legislature takes account of this and acts accordingly, we will find ourselves at a disadvantage. The drug barons and the criminals, who are highly organised and efficient, have thrown down the gauntlet before the Houses of the Oireachtas and the people and have clearly indicated their total disregard for the law. It must be resolutely picked up by the Minister for Justice supported by all sides of the Houses of the Oireachtas. I am glad to see the Houses of the Oireachtas have made a unified response to the atrocities that have taken place over the past number of years. It is not in anybody's interest or to anyone's advantage to seek to gain from the recent tragic events for reasons of political expediency. It would not be advantageous for anybody to attempt to exploit the situation for political gain. I do not think anybody will do this.

In this situation, a clear message should emanate from the Houses of the Oireachtas on behalf of our law abiding people that no quarter will be given to those who blatantly trample on the rights of our people and who indulge in nefarious activities which have ended in loss of life and caused grief to many people.

Recent events have brought home to everybody the seriousness of ensuring we deal adequately with events as they arise. More importantly, we might in future observe the need to make these changes at an earlier stage and consequently avoid the kind of situation that has unfolded before us in recent times.

I thank every Member who contributed to the debate; their support is appreciated. On behalf of me and the Minister for Justice, I thank Members for ensuring the smooth and safe passage of the Bill through the House. I also thank the officials from the Department of Justice who kindly briefed me on this occasion.

Question put and agreed to.