Select Committee on Finance and General Affairs debate -
Tuesday, 20 Jul 1993

SECTION 10.

Debate resumed on amendment No. 12:

In page 8, line 44, after "enter" to insert "without warrant".

—(Minister for the Environment.)

Mr. McGrath

This section seeks to empower the Garda Síochána to enter any place — even a family home — without a warrant to arrest a person suspected of a drink driving offence. At the last meeting I expressed my reservations about it. I asked the Minister if he would look at it very carefuly over the weekend and, perhaps, consider deleting it. It has very serious implications for civil rights and for our rights as individuals to privacy and protection within our homes. I suggested to the Minister that if this section became law we would very quickly have a court challenge going all the way to the Supreme Court. In the meantime many sections of this Bill would be unworkable and the legislation would be labelled as flawed. That would be a grave mistake and should be avoided at all costs.

It is very important that any legislation passed into law is seen to be reasonable and workable. This section smacks of a police state by allowing the Garda to enter family homes without a warrant on the mere suspicion that the occupant has committed a drink driving offence. That is going too far; it is going down a road we should not be proceeding along.

Deputy Keogh spoke about the possible abuse of this section by a vindictive garda conducting a vendetta against somebody. There are very few vindictive gardaí— we are lucky enough in that respect. However, this section could be abused not alone by somebody who is vindictive but by a garda who is over-diligent, over-enthusiastic in his efforts to get a conviction, who is determined to get his man. Such a garda may go to a person's home and ensure he gains entry to breathalyse the person on the spot. That is going far too far. There should be at least be a warrant issued before such an entry is effected. I have grave reservations about this section.

It could also lead to many difficulties. We all lend our cars at times and, as in my case, teenagers sometimes borrow them. There is the danger of mistaken identity. If a garda suspected me of committing an offence under the drink driving laws he could come into my house and find me watching the television or preparing for a debate like this and, perhaps, with a glass of whiskey beside me. Should the garda breathalyse me, how could I prove it was not I who had been driving the car? If gardaí can force entry into a house there is a danger of mistaking the identity of a person.

If I had a couple of drinks in town and a garda followed me home and I became aware of that surely the first thing I will do when I get into the house is go to the drinks cabinet, pull out a bottle of whiskey and a glass and be sitting at a table drinking by the time the garda arrives. The garda cannot then be sure how many drinks I have taken, if any, from the time I entered the House until he came in to arrest me. I suggest that it would not be possible to get a conviction on such evidence. The judge would not be in a position to know whether the alcohol consumed by me was consumed before I drove the car or when I got back into my home. Allowing the Garda access to the family home, which is the area I am most concerned about, will not serve any useful purpose and should be deleted.

It could also happen that somebody at home in bed when a garda arrives to interview him in connection with a drink driving offence will suspect that there is an intruder at the house. In such an instance there is a danger that a garda will be shot or at least assaulted by the occupants of the house. What will be the outcome of that? Who will be responsible in that case for the mistaken identity?

This section represents a breach of our civil liberties. It is a draconian measure that amounts almost to the introduction of a police state. I appeal to the Minister to delete it.

Mr. Connolly

On Wednesday last I dwelt for sometime on two issues raised in the explantory memorandum. We are now dealing with the powers of the Garda to arrest without warrant. This will have very serious consequences. The legal opinion is that it is unconstitutional. If another person who is insured to do so drives my car to my house and then walks home across a field or further down the road, and a garda is of the opinion that that person is under the influence of alcohol, and has seen which house he drove to, how is that garda to know that I was not out that night? However, it is possible that I have taken alcohol and am over the limit. What is my position in those circumstances? I stand in a very bad light if a garda can say that it is my car and that I am under the influence of alcohol. He can take me into custody. That is draconian and greatly impinges on the constitutional rights of the individual.

I am not against the tightening up of the road traffic laws. However, this is a very dangerous procedure. I am a long time in Parliament and neither I or any Member would want to pass a Bill that will cause problems. This will result in the legal profession having a field day all the way up to the Supreme Court. I would tear this asunder.

The Minister is a reasonable man and understands life quite well. I would, therefore, ask him to have a look at this again before Report Stage because it goes too far. Every Member believes that. Nobody in this country today has the powers contained in this section. If I am to be arrested on another charge, the Chief Superintendent has to issue a warrant. The Revenue Commissioners are the only people with similar powers but, generally speaking, they will serve a number of notices before taking such action. This will have far reaching consequences because powers under one Act can be availed of under another Act. Can we expect other legislation to give powers to the Garda to take the type of action that is proposed here?

This will lead to much confusion. There is not a family home today where another family member does not also drive the family car and it may be loaned to another person. Anybody who lends his car to a neighbour or a family member does so in good faith and one does not need to take much alcohol to have over 80 milligrammes of alcohol per 100 millilitres of blood. Some say half a glass of whiskey will put one over the limit. That could be right. My main point is that there could be a doubt that the person arrested by the Garda is the person who was in control of a car at a particular time. We have a duty to ensure that any legislation we introduce will stand up to scrutiny and that constitutional challenges to it will not succeed.

Is the legal opinion that this legislation is lawful? When similar legislation was challenged in the Supreme Court on two occasions it did not stand up. We will not know until it is challenged in the courts whether it is unconstitutional. This section should be reviewed before Report Stage.

Dr. Upton

Like other speakers, I am concerned about this section. On the last occasion the Minister was copious with his supply of statistics in relation to the number of deaths caused by people driving cars while under the influence of drink. Does the Minister know how many people have avoided prosecution for being drunk by using their homes as a refuge? We should be given that information before this section is passed because it infringes significantly on the rights of the citizen. In addition there is also much concern in relation to the possibility of mistaken identity. Deputies McGrath and Connolly alluded to the possibility of people drinking at home being mistaken for somebody similar in appearance who had been driving a car while under the influence of alcohol, such as a brother or sister.

A further question arises as to what will happen when gardaí seek admission to a person's house late at night for legitimate reasons? The garda may have made a mistake in relation to the location of the house or for some other reason. Under this section gardaí are permitted to use force go gain admittance to a house. Are we not setting up a dangerous set of circumstances whereby a garda, having identified himself, can force entry into the house of somebody who is frightened? People have been shot trying to get into other people's houses. There was a tragic case in north County Dublin of people being shot while breaking into a house. In the past people have masqueraded as gardaí in order to gain admittance to a house. They have gone so far as to steal Garda uniforms and become involved in robberies and other illegal activities. I agree with those who predict that this section will be challenged in the courts. With regard to the outcome, I am not a constitutional lawyer, I am not in a position to say but I have my doubts as to what the courts will decide ultimately.

This section indicates that we have become a little too enthusiastic about closing off loopholes and so on. If we put the emphasis on enforcing the existing law a greater progress would be made and it would be easier to prevent people driving their cars after consuming excessive levels of alcohol. Anyone who visits a public house at night will meet people who have a large amount of drink consumed and intend driving their cars home. If the existing laws were used many of the problems the Minister is trying to address would be eliminated.

Mr. Gilmore

As I understand it, the purpose of this provision is to deal with situations where people lock themselves in their cars or manage to make it to the front door of their home before the garda arrives to breathalyse them. I agree with the comments that this provision is a crude way of dealing with that problem. Two problems arise in this regard. First, the arrest and the entering without warrant and, second, the problem of the use of force. Where will this lead to? Will gardaí smash their way into cars if the person in the car decides not to allow them admission in order to do a breath test? Similarly, will a garda be entitled to smash down the door of a house in order to gain entry? That is what I understand by the use of force in order to gain entry to a premises or to a vehicle.

This provision will give rise to a number of problems. Apart from the problems mentioned it may lead to the gardaí, who currently enjoy a high level of public support, losing that support. Similar provisions are beginning to appear in other legislation. The public order Bill currently being debated has some similar provisions under which the gardaí are being given wide powers to deal with problems of criminality and, in this case, problems arising from drink driving. That sits uneasily with the position at present whereby people who commit a crime are being charged and released pending the completion of investigations by the gardaí. Subsequently, they are brought before the court by summons rather than held on remand from the time of charge. There is a contradiction in what is being done in this Bill and the practice of releasing people who commit crimes until all the evidence is assembled.

The provisions in this Bill give the Garda power to smash their way into somebody's home or car in order to apprehend an individual and administer a breath test. It should be possible to devise a more sophisticated method to deal with the problem of people locking themselves in their car or into their homes in order to avoid being breath tested. It should be an offence to lock oneself into a car. Evidence should be presented in court that people have done so to deliberately avoid being breath tested and the court can decide how to deal with that. The problem is being dealt with in the crudest possible way in the Bill in that the gardaí can smash their way into a car in order to apprehend the driver who has locked himself into it or they can smash their way into a house for the same purpose. This provision is not workable in practice, quite apart from the points raised regarding its constitutionality. It is a dangerous provision and the Minister should reconsider it.

Mr. M. Ahern

We are all aware that the reason for the introduction of this section goes back to the Supreme Court decision of March 1991 and the judgments of Supreme Court judges Hederman, Griffin and McCarthy. Gardaí should be given additional powers to deal with people involved in hit-and-run accidents who manage to get home before being tested for levels of alcohol. Concern has been expressed to me about the word "dwelling". What has been highlighted by most people are the powers given to gardaí to enter a persons's home at any time without a warrant. Will the Minister allay those fears? There is grave concern about giving gardaí power to enter a person's dwelling. In general people accept that the gardaí should have power to follow somebody onto their property, for example, a person's garden, driveway and so on, but the inclusion of the word "dwelling" is causing grave concern.

Mr. Noonan (Limerick East)

This is an extraordinary provision. The power is excessive and I doubt if the gardaí would want it. One of the features of a police state is detention without trial and the power of a police force to break into people's homes and search them without warrant. Any member of the Garda Síochána who reasonably believes that an offence has been committed under the section can use force to break into a person's house. That is an unreasonable provision, especially in circumstances where the level of alcohol in the blood-stream is being reduced to 80 milligrammes per 100 millilitres of blood. If a garda believes somebody has driven after comsuming two bottles of beer or two glasses of wine he can follow that person to his or her home and if refused admittance can break in by using force and arrest that person. That is an extraordinary provision in any democracy and it should not be sought. I accept the difficulty the Minister's advisers are trying to meet. In the case of a fatal or a hit-and-run accident, it is reasonable that the gardaí should be in a position to pursue a suspect, especially if he or she is obviously drunk. However, the section does not need to be cast as widely as it is. It could be written into the section that if in the opinion of the gardaí a contributory factor to a road fatality was an offence under this section they should have this power. It could be confined to circumstances involving fatal accidents. As the section is drafted somebody who has consumed two bottles of beer and passes a garda on the road could be followed home and force used to enter the home. That is totally unreasonable.

The best way of expressing the inviolability of the family home is by quoting the phrase, "an Englishman's home is his castle". We have the same common law tradition and the Irishman's home is his castle also. There are no widespread provisions in our laws permitting gardaí to enter homes without a warrant for any purpose. That power is confined to serious crimes. The Minister has an extensive brief and I am sure he will tell us the position. For example, I do not think gardaí have a right to enter a house to search for stolen goods without a warrant. I do not believe, for example, that if a murder were committed they would have the right to enter a house to search for the murder weapon on reasonable suspicion that the gun or the kinife was in the house. I do not believe that they even have the power to enter a home in circumstances where there is a missing person and where there would be a suspicion of murder or kidnapping. The gardaí would have to go to court and obtain a warrant to search a home in those circumstances. There are certain powers under the special powers Act to search for firearms and so on without a warrant. However, in the normal run of criminal law — I am not as familiar with it as I was — I do not think amendments have been made to allow the gardaí enter family homes without a warrant, even in circumstances where they believe a serious crime has been committed and where evidence could be gleaned which would lead to the solving of a particular crime.

It is difficult to accept that it may be necessary for the gardaí to break into somebody's house after that person has drunk two bottles of beer and apprehend him or her in such circumstances. Will the Minister refresh our memories on the powers of arrest without warrant and the powers of entry into family homes without warrant? I accept that the section does not refer to a family home, it refers to a "dwelling". A similar situation would arise in regard to a hotel in that a person may be followed by a garda to the hotel. This section would give the gardaí the power to enter the hotel, go to the appropriate floor and break into the bedroom, which would be extreme. This could happen at any location, even a person who enters the gates of Leinster House would not have protection under this section, because it states "any place". This is an extraordinarily wide power for the Minister to seek and it is unnecessary. If a provision is necessary to meet circumstances where there is a hit-and-run accident involving either serious injury or a fatality and to permit the gardaí to follow a suspect immediately after the accident it would not require much drafting to amend the section in order to grant that power. The power granted by the section is extraordinarily wide and the Minister should reconsider it. This will put the gardaí in an impossible position and it is unconstitutional also. The first time a garda breaks into a house there will be a great constitutional case because the inviolability of the family home is such a strong concept in our law. This section will not overcome the constitutional difficulties.

The Minister should reconsider this and Members of all parties have asked him to do that. Members of the Minister's party are not putting it quite so strongly but they are adopting a similar approach. The section is not necessary and should be amended.

Mrs. Doyle

When I spoke on this issue last week I indicated clearly to the Minister how strongly we felt about the inclusion of this provision. It is included at two points in the Bill, in section 10 (8), to which we are now speaking, and also in section 11 (10). Our amendment only refers to section 11 (10) but it applies to both sections as they are identical. Hence, we will be opposing the provisions in this subsection.

I appeal to the Minister to delete these provisions. There would appear to be virtual unanimity in relation to this draconian power which the Minister is endeavouring to introduce. I suspect also that the Minister has received the message loud and clear in relation to the cross party views regarding this subsection. It cannot be accepted that the Garda Síochána should be given the power to enter any person's home by force and without a warrant.

It has been outlined already to the Minister that two pints of beer, or even a pint and a half of beer is within the legal limit today.

We have all at times driven home after consuming the equivalent amount of alcohol and, if we are honest, probably much more. We all accept the reality and the new social awareness regarding drink driving. However, as this Bill has yet to be enforced, one could drive home this evening quite legally, having taken a certain amount of alcohol, and in about three weeks time when this Bill is to be enacted, if a person drives home having had a couple of drinks that person may be followed and arrested by force within his or her home, perhaps in the bedroom. I have a feeling that is not what the Minister was trying to achieve.

As a Member who wholeheartedly supports the thrust of this Bill, with one or two exceptions, this being one of them and my major cause of concern, I ask the Minister to delete this section. I do not accept that it is necessary even in the case of a serious accident because the Garda already have the powers to deal with such cases. My concern is that the average citizen who is technically over the limit, with maybe 85 milligrammes of alcohol per 100 millilitres of blood — legal today — and who is totally compos mentis could be pursued up his driveway or have his home entered by force and arrested without a warrant.

I read the extensive briefing note we received from the Minister on this and the section which deals with the power to enter private property. I read also the judges' points which are used by the Minister to justify this provision and I am aware of the experiences in courts in recent years where the Garda have been frustrated in apprehending drunk drivers. Mr. Justice Hederman's statement is not that of a person who would favour the property rights of citizens, now recognised and protected in common law, being eroded to the extent the Minister now intends doing. Mr. Justice Hederman said that if it had been intended by the Oireachtas to confer on a member of the Garda the power to make inroads on the property rights of citizens which are recognised and protected by the common law and to enter on private property against the will of the owner and there arrest the owner, express provision should have been made for such a power in section 49. He is not saying that that provision should be made. My interpretation would be that the tone of that statement indicates that not many senior members of the Judiciary and of the legal profession today would approve of what the Minister is trying to do.

Having spoken to several gardaí over the weekend and bounced this proposal off them I found they were amazed at the extent to which their powers were being strengthened. The majority view was that they would not like to be given these powers. My colleague, Deputy Noonan, and others, including Deputy Connolly, pointed out that there is a particular relationship between the Garda Síochána and the Irish people. Yes, there are a number of very cynical people who have no respect for the institutions of State generally, but the vast majority of Irish people, and the vast majority of young people coming out of our schools and going into the workplace, have great respect for the Garda. Many go through a phase of being slightly cynical about a police force, but it is amazing how quickly they come to respect the role of the Garda in our society. As soon as they have a mortgage, get married, have children, have a job or start to drive a car, they realise the need for a strong and successful Garda Síochána which has the trust of the people. I would hate to see the very good relationship that exists between the average person and the Garda eroded in any way by the granting of this power which the Minister proposes today. It goes against the spirit of policing in our country and the spirit of cooperation which has always existed between the Garda and the people.

The Irish Council for Civil Liberties recently had much to say about the new public order Bill. That organisation would have a great deal to say about this section and I invite them to cast their mind over it and offer the Minister an opinion on it. One does not have to be an avowed civil libertarian to find one's hackles raised on reading these two subsections. No-one that I have spoken to is completely comfortable with the provisions. There are some, maybe to their credit, and party colleagues mostly — who have made valiant efforts to defend the Minister's move but I know from talking to them that they are not comfortable with the draconian step the Minister has decided to take, nor can they feel that it is justified in terms of the area it controls.

On reflection, I feel the Minister may be prepared to delete this subsection and also section 11 (10) which is identical. If the Minister will not accede to its deletion, perhap he will consider restructuring or rewording these subsections in such a way as to limit the number of occasions on which a garda can move against a person in his private dwelling or place of business with force and without a warrant. Given that there is up to three hours within which specimens can be taken and the electronic communications of today, there should be no need to move without a warrant. If a garda has reason to suspect that someone is over the limit and in driving home was a serious risk to the public and to himself, it should be easy, with electronic communication between a motorbike garda or patrol car and headquarters, to have a warrant brought within three hours to the place within which the garda suspects someone is hiding or evading the law in regard to submitting to a breath test.

We also need clarification as to what sort of specimen can be taken from the person locked up in his bedroom avoiding the law. There is provision for the garda to batter down the bedroom door and apprehend the person suspected of having driven a car home — the garda may be mistaken and it could be another member of the family — I made that point last week and several Members made it today — but the Minister is not providing for breathtesting. The Minister said the power to enter private property is not being applied to section 12, i.e. to take a preliminary breath specimen.

That gives rise to many questions. On what basis is a garda to assume that someone is over the limit? Is it only if the person has acted in a very erratic way? Is it only if the person has been involved in an accident or in some incident? Can a garda follow anybody who has taken two drinks, a limit which is legal today, but perhaps, illegal in three week's time when the Bill is enacted? On what grounds can the Garda under this draconian measure enter homes without a warrant and with force? If it is not to take a breath test to indicate that a person is or is not over the limit it is obviously to take a urine or blood sample.

Is a person to be dragged screaming to the local Garda station or hospital, having been forcibly arrested without a warrant or is the medical practitioner designated to take these tests to be brought onto the private property of an individual to take a blood test? Is a person to be forced to give a urine sample in their bedroom in their family home? Will that person be brought back to the Garda station? What exactly is the reason for this draconian measure if it is not to take a preliminary breath specimen?

With respect, the Minister should think this out further. I have a feeling that, having listened to contributions from all parties, the Minister will, at the very least, amend — I would hope delete it entirely — section 10 (8) and section 11 (10) which we are debating together. Will the Minister indicate as soon as possible what this intentions are because it may help to short-circuit the debate. It would help to allay the fears of many people and allow us to move on to other sections which may not be as contentious.

Mr. Currie

How many Members are offering at this stage?

Chairman

There are six to follow the Deputy.

Mr. Currie

I attacked this provision in the most trenchant terms last week and today it has been attacked in the strongest possible terms not only by Deputies McGrath, Noonan, Doyle and Gilmore but also by Deputy Connolly. It has been described as "unconstitutional", "draconian", "a very dangerous procedure" and "a violation of civil rights". Those phrases were used, not only by Fine Gael and Democratic Left Members but by Deputy Connolly. In view of that, I cannot see how the Minister can possibly go ahead with these proposals. Nobody defended the Minister either today or on the last occasion.

Mrs. Doyle

Deputy Michael Ahern did.

Mr. Currie

Half-hearted attempts have been made by some Fianna Fáil and Labour Party Deputies to do so but there was no sincerity in what was said. The Labour Party has a long history of opposition to measures such as this. They have a long standing commitment to civil liberties and unless they have entirely given up on everything they believed in the past they will have no option but to oppose these provisions.

I honestly expect the Minister to announce, when he gets the opportunity to speak, that he is not proceeding with this proposal. If he intends otherwise, if he has a defence for these proposals, I want to hear it because nobody has so far defended them. I do not believe in needless repetition. The Minister should, at the earliest opportunity, state his case and tell us what he intends to do. I would welcome the opportunity of commenting later but I expect him to withdraw these provisions.

Mr. Finucane

When I spoke on this issue last week I voiced my total opposition to the provisions. The last few days gave us the opportunity to discuss with the Garda how they feel about them. The vast majority of those I spoke to would be extremely concerned about being given these powers. It is refreshing to think that this discussion has proved the efficiency of the committee system in that Members can hear all the concerns about this legislation. I doubt that, under the old system of a Bill going through Committee Stage in the Dáil Chamber, there would be so many Members in attendance on a Tuesday to contribute.

I was very impressed by Deputy Connolly's contribution. He has his finger on the pulse of what concerns all of us. It is refreshing to hear the Deputy express concerns similar to ours. It shows a sincere commitment.

Mr. M. Smith

To whom is the Deputy referring?

Mr. Finucane

It is all Opposition Members.

(Interruptions.)

Mr. Finucane

The Minister may be desperate but he should not introduce red herrings at this stage. I would love to hear Deputy Costello speak on this issue because he has been a long-time champion of civil liberties. I agree with Deputy Currie that the Labour Party members will be extremely concerned about this legislation. If this committee system is to work, the Minister should heed the meaningful contributions made and remove this far reaching power which is causing a great deal of concern.

Last week we had a wide ranging discussion on the reduction from 100 milligrammes to 80 milligrammes in the legal alcohol limit and what we are discussing today must be taken in that context. One would not have to drink very much to be over the limit. I spoke about the traumatic effect forcible entry into one's home by the gardaí would have on a person's family and the reaction of neighbours. There is another power within this. We are concentrating on dwellinghouses but this also applies to places of business. What will be the approach in regard to a place of business? Let us say a person had a few drinks over lunch and returned to his place of business. Under these provisions gardaí would have the right to visit the business premises for up to three hours afterwards. Would the visitation of the Garda be private or would there be great embarrassment caused by the businessman being arrested and hauled down to the local Garda station? What impact would that have on his colleagues? Under these subsections the Minister is taking on many extra powers.

In regard to the Garda, generally, we are all aware that the vast majority of the members of the force carry out their duties responsibly. I would be concerned about the rogue garda who is conducting a vendetta against an individual who is, perhaps, involved in petty pilfering. If such a garda felt that he wanted to put manners on an individual like that he might take the opportunity of doing so under the cloak of this legislation. I do not think we should leave the law open to such an interpretation. I hope the Minister will withdraw these provisions.

Mr. Sargent

Is maith liom Gaeilge a úsáid. An bhfuil comhrás aistreachán ar fáil?

Chairman

Níl.

Mr. Sargent

In the absence of that system I will await its introduction.

Chairman

Ar aghaidh leat.

Mr. Sargent

An bhfuil gach duine sásta le sin? Tá fhios agam go bhfuil daoine ann nach dtuigeann Gaeilge. From that point of view I would be happier to be understood by all Members.

(Interruptions.)

Mr. Sargent

First, I would like to ask the Minister about details of the justification of these measures including reasons as expressed previously by the Garda, the relevant facts and figures, how similar powers operate elsewhere and the type of legislature they operate under. I am very concerned about the infringement of civil liberties implicit in these provisions and also acutely aware of the difficulties which the Garda operate under which are largely due to reduced resources to deal effectively with the situations they face. However, I do not see any reference to the aftermath of a wrong use of such powers where the legislation might be challenged in the courts by a person who felt his property had been wrongly broken into. The compensation for that would relate not just to the cost of a broken window or door but to the perceived or genuine trauma and other issues that might result in large compensation claims. I do not see any reference to that in this section and I would be interested to know if any thought has been given to it.

The power is excessive in terms of its range. I trust it has emanated in response to situations, where people, when challenged in their driveway said, "this is my property, you cannot come here" or the door was locked and a suspect would not give a sample. Other measures, such as wheel clamps, should be borne in mind rather than breaking a window and so on. I worry that the Garda tactics of law enforcement will be altered by virtue of these provisions, if they are passed. A garda might be encouraged to stop a car or other vehicle before the driver gets home but in this case he or she can wait in stealth for the person to go home, which is very worrying. This may highlight the fact that there are not enough gardaí to carry out the job of law enforcement but, perhaps, that is a matter for the Minister for Justice who ought to be kept informed about this debate.

I am worried also about the effect of this measure on the section of the population who do not consume alcohol. Up to now, measures relating to drink driving have largely affected those who drink, but now a whole section of the population who normally stay at home or do not drink will be faced with the possibility of having their houses broken into, either wrongly or rightly, because a person there is suspected of committing an offence. The provisions will infringe civil liberties and for that reason I urge the Minister to reconsider them. They cast far too wide a net and bring us dangerously close to a serious infringement of civil liberties which we ought to be protecting.

Mr. Nealon

These provisions are a new departure alien to our demoracy. They represent a breach of one of the strongest, most cherished and most sacred traditions we have, one does not enter a person's house without a warrant, unless invited. That is held sacred by everyone. What we are witnessing here is a new style battering-ram, a battering-ram in uniform. Why are we about to embark on such a procedure on this occasion? It is because a person may be suspected of having consumed a large whiskey instead of a small one, to put it at its extreme. I wonder has the Minister considered the major problems he may create in families because of gardaí battering down a door. This can have a long term traumatic effect on families, causing long term dissension in a family. Can a guarantee be given that the gardaí would not use this cover to gain entry for other purposes? I do not want to be told that this cannot happen. If a garda finds some other illegal activities taken place in the house, perhaps a poteen still on the gas burner with a second round run coming out through the worm, or a very valuable stolen picture on the wall, what will he do about that? Is he entitled to use that knowledge subsequently or is he entitled to proceed to deal with those criminal activities as well as the alleged the drink driving offence? All of these are minor issues compared to the major one that would occur if we allow these provisions to be passed into law. Without a doubt they are not democratic, they are a severe infringement of civil liberties as we know them and have a police state overtone.

There are several solutions and Deputy Gilmore suggested one. I have no doubt that the Minister will be able to attain what he is seeking in some other fashion with equally good results. This represents a major departure from our accepted traditions, practices and law. Such provisions should not be introduced as an aside to a road traffic Bill. They represent as a major departure and have constitional implications.

Mr. Penrose

The Minister is taking his cue from the DPP v. McCreesh decision but I have to say bluntly that the intention of section 10 (8) and section 11 (10) go beyond what was contemplated by the judges in that case. The Minister has widespread powers already in the Bill in relation to other matters. Indeed, the Supreme Court decision only six weeks ago in relation to people who escaped on to other people’s properties confirmed his powers. We are talking about the inviolability of the family home.

The use of a warrant and the laying of information to obtain that warrant are certainly fundamental to the application of our criminal law system and underpin the correct use by the Garda of their powers in respect of that law as implemented. The information must be specific and relate to the investigation of a particular offence. In this case the absence of the requirement of a warrant means that it is quite conceivable that a garda looking for somebody in relation to a drink driving offence may stumble upon some other activity and, in the absence of a warrant, he would seem to have some legal validity under section 10 (8) and section 11 (10). I certainly could not agree with that. In 1965, in the case of the Attorney General v. O’Brien, the inviolability of the dwelling house was delineated, clearly set out and preserved in Mr. Justice Walshe’s decision. He found that this was clearly set out in Article 45 of the Constitution.

It would be a draconian step to move away from what has been clearly enunciated in a line of judicial decisions. A Supreme Court decision of March 1991 indicated that there might be some way that the Legislature could legislate in relation to people escaping from patrols or check points. What is happening here is that legislation introduced in Britain in 1981 is being aped. The major difference is that we have a written Constitution and we are bound in law by that Constitution. Those sections go too far. For example, a person with no drink taken can conceivably be followed to his home. A bee may have entered that persons car and as a result he may be frightened and driven in an erratic fashion on the way home. A garda may form an opinion on the driving and pursue the person to his home and, without the need of a warrant, enter that person's house or dwelling. The word "dwelling" is not defined. I am amazed it is not, because as other speakers said, it widens the concept incredibly. The powers would be so pervasive that I do not think they would stand up to the scrutiny of a legal challenge.

Another point, is that illnesses, such as diabetes, or an epilepsy attack may have an impact and they have to be taken into account when the criminal law comes into play. This provision is far too wide, too pervasive and goes beyond what is required. We could have also cases of mistaken identity, which bring their own problems. We know of cases where mistaken identity has created problems, for example twins in a family, which I have, who look alike, one of whom drinks and the other does not. They are the type of practical problems one will meet as a lawyer. It is incumbent on each lawyer to present a case to the best effect for his client. These provisions will give rise to a great deal of litigation if enacted as drafted. I presume the Minister will take on board the points raised.

People under the influence of alcohol might not necessarily be drunk, which is another distinction. How many drivers would be convicted of drink driving if these provisions are introduced. The number of people involved in offences who are pursued to the gateway or on to private property is very small. Will the Minister tell us the number of such cases which have come to his attention? I recall that three or four went to the High Court and two or three went to the Supreme Court. We are dealing with that number. The measure is far too wide and too draconian in my view for the number of offences involved.

There are other remedies in law to deal with such offences. If one were to look at all the offences which come before the courts the absolute minimum requirement, which in my view is in the interests of natural justice, is the production of a warrant. That is the lowest common denominator in relation to the application of criminal law. There is a hierarchy of constitutional rights but the property rights of people, which can be summarised in the phrase "the home is the castle" should not be tampered with lightly. We should exercise great care in bringing about changes that mean property rights may be invaded at the whim of or on the opinion of somebody who feels an offence has been committed. We have no yardstick by which to measure that opinion. It is no use saying that it can be measured in court. Of course, it can be measured in court but that will be in three or six months time. We have nothing to measure it now.

It is the contemporaneous evaluation which is the greatest yardstick as to how those opinions are exercised. I would certainly be eager that the Minister would, at a minimum, redefine the powers in relation to sections 10 (8) and 11 (10). In my view they go way beyond what is required. At present a garda without a warrant is a trespasser once he is on private property. That is the common law position as perceived by the courts. The various categories of people in relation to occupiers liability has been somewhat changed and instead of the three categories we now have two at a maximum. That applies in the civil code but in criminal law we still must view as sacrosanct the way that people are invited on to property.

In my view a garda without a warrant would still be a trespasser. This section, in the absence of the requirement for a warrant, would be wide open to legal challenge and to judicial evaluation in the long term. The judges in the 1991 decision expounded a particular viewpoint but sections 10 and 11 in my view, and it is only one view — of course, lawyers differ — goes way beyond what is warranted and what can reasonably be interpreted from the decisions of the court.

Ms. Keogh

A number of points have been made since the debate started and I am sure the Minister has beeen listening very carefully to them. They are compelling, in particular the view that this provision would be wide open to challenge in the courts. If it were only from that point of view, the Minister should look very carefully at these provisions and either amend them or drop them. They are draconian measures. To a certain extent they represent a rather single-minded approach to what is perceived as a problem. Perhaps a problem has existed and, as others mentioned, we do not quite know to what extent but, unfortunately, there are far reaching consequences to this approach. Obviously, there has to be a better way, whether we insist that a garda must have a warrant, or use some other drafting mechanism to close off what is quite a small loophole.

I find it very difficult to come to terms with the provision which refers to that in the opinion of the Garda Síochána the person is committing or has committed an offence. It is possible for that provision to be abused. The Garda do a tremendous job and, in the main, they are very upstanding people. I, too, over the weekend took the opportunity to talk to a number of gardaí who were quite concerned about these provisions. They expressed the view that the way to implement the laws in existence is to give them the resources. The Minister earlier said he had received the commitment of the Minister for Justice that resources would be provided to implement the new laws. We would hardly need any of these provisions in the Garda were given the resources they seek at present. I am very concerned that innocent people may be unwittingly involved in particular circumstances.

I used the following example before and I make no apologies for using it again. Let us say somebody has transgressed, but escapes home, their family may become the innocent victims of a garda making a forcible entry into their home. That is very frightening. The Minister, I am sure, has listened very carefully to the debate and will recognise that there are compelling reasons for either amending the provisions or, better still, for dropping them completely.

Mr. Ferris

Last week I suggested that the sooner we heard the Minister's explanation of the legal advice available to him or the necessity for this section the better. Deputy Doyle quoted Mr. Justice Hederman but did not give the opinion of Mr. Justice Griffin that under the law as at present in force that power of arrest cannot be exercised if a driver succeeds in reaching his own premises be they his private residence or his business premises before the gardaí catch up with him, that there must have been very many instances in which this has occurred and the enforcement of the law has been frustrated and that although any change in the existing law is a matter exclusively for the Oireachtas, instances such as in the present case would appear clearly to warrant legislative intervention to prevent a repetition thereof.

According to Mr. Justice Griffin, we have the responsibility to legislate or to strengthen the existing legislation. That brings us to the concern expressed by Members of all parties, aside from the taunting of Fine Gael Members. The beautiful thing about this committee system is that all Members have an opportunity to contribute.

Mrs. Doyle

The Deputy is being very prickly.

Mr. Ferris

I am being prickly. All Members have an opportunity to contribute on Committee Stage, irrespective of political affiliation. The Labour Party will make its judgment on any section.

There can be and have been cases of mistaken identity. The Labour Party is concerned about such cases, and about cases where mistaken identity is based on a garda's evidence. We have talked to members of the Garda Síochána and are not worried about making our contributions here.

From the contributions I have heard, I do not think any Member would defend somebody who is guilty of a serious offence. We would not want to frustrate member of the Garda Síochána in arresting somebody who is guilty of an offence. A corollary to that, is that innocent people usually have no problem in facilitating members of the Garda Síochána in their home, their business premises or elsewhere. Likewise, people who are guilty would probably avail of any opportunity to hide away in the safety of their own home or elsewhere. That brings us to the question — of what are they guilty? I agree with many of the contributions made. If somebody drinks two pints or two half ones does that give the gardaí the power to break down the doorway, to arrest him? That is the kernel of the problem. If, in the opinion of the garda, somebody is guilty of causing a serious accident, which led to loss of life or serious injury, is that justification for entering private property?

Deputy Gilmore made a good point, that a section in any Act could be phrased in such a way that refusal to facilitate a garda in the exercise of his duty may become an offence. It is the same as somebody refusing to give a sample and that is an offence equivalent to giving a positive sample. It can result in the similar penalties being imposed. I am as anxious as anybody to hear the legal opinion given to the Minister and the officials who framed this legislation which, in principle, is probably correct.

The kernel of the problem is how to achieve that principle with respect of people's privacy and rights. Will the Minister gives us the wisdom of his opinion? He should between now and Report Stage, frame a provision which can achieve what all of us want to achieve, the apprehension of people who are guilty of serious offences related to drinking.

Mr. M. Smith

I thank my colleagues for attending and making their contributions. Clearly some contributions were a little over the top in that they accused me of being unreasonable. Those contributions did not deal with what is intended. The majority of contributors have difficulty with these provisions. Reservations were expressed as to the constitutionalty of these provisions. Concern was expressed about the danger of the power which is enshrined here being abused for instance by arresting the wrong person or a person for the wrong purpose.

I will respond to the points raised as well as I can and in as much detail as possible. I will deal with the question of constitutionality first. Article 40.5 of the Constitution provides that the dwelling of every citizen is inviolable and shall not be entered save in accordance with the law. The latter words are the key, "save in accordance with the law". The advice of the Attorney General was that a provision like this is necessary, that it is not disproportionate and that it would not be an unconstitutional invasion of the citizen's dwelling house. Deputies are quite entitled to make their contrary views known, that these provisions are unconstitutional. Ultimately, the High Court and the Supreme Court interpret the Constitution and decide whether a particular provision is in conflict with the Constitution.

Deputies are entitled to ask what the court's attitude to this provision might be. I will not detain Members by reading out the decisions of the judges of the Supreme Court. Deputy Ferris has given Mr. Justice Griffin's opinion. Deputy Doyle chose Mr. Justice Hederman's opinion. There is no question but that whatever interpretation one puts on it, the Supreme Court strongly suggests that powers like that would not be unconstitutional.

On the extent of the power and danger of abuse, the power to enter on private property to secure an arrest is solely for the purpose of making an arrest under section 49 or section 50 of the Road Traffic Act, 1961. It cannot be used for any other purpose. I want to make that absolutely clear. If it were to be abused the courts would deal with that matter. The courts will not accept evidence or convict a person for other offences if the evidence was gained or the arrest was effected by a way which was an abuse of power. In using the power for drink driving offences the gardaí will have to prove to the satisfaction of the court that the person arrested was the person who was driving or in charge of the vehicle. We are not talking here about the Garda using sledge hammers to knock down doors. The powers, of course, like all other powers have to be used in a reasonable manner. The bottom line is that the use of a power in every individual case will be subject to the scrutiny of the court where the case is being heard.

Why is the power needed? The power to enter on private property is necessary to overcome a well known anomaly which is capable of being exploited, an anomaly which can allow drunken drivers escape prosecution. I expect that power to be used very rarely and the very existence of the power should be enough to stop people resorting to escaping to private property. Last Thursday, Deputy Gilmore asked me to do something specifically with regard to hit and run crimes. In the case of a hit and run accident or near accident involving a drunken driver who escapes to his or her home, Deputies are asking that I do not provide power for that person to be arrested without a warrant, even though outside of his/her home that person can be arrested without a warrant for the same offence. Once the person gets across the line it becomes a different matter even though the crime is the same, even though the argument about civil liberties extends a right of civil liberty to the individual that has committed the crime, but no such civil liberty extends to the person against whom the crime was committed.

The first civil right is the right to life and too many people are dying on our roads. Are the people responsible for it or for very serious injuries to be entitled to move to their homes and in the absolute security and safety of their home be out of the reach of the law? That is what Members are saying. I am a democrat, and have to bow to the majority wishes of this House, but I want Deputies to bear in mind that on Second Stage they asked me to try to close those loopholes. The loopholes have been identified by the court and by Deputies. Closing loopholes is not an easy business. I provided for this with the greatest reluctance and I sought by every means possible, including advice from the Attorney General and signals from the Supreme Court, a way to provide for the circumstances I have outlined. I know that Deputies are taking the extreme case and it is fair to analyse the provisions in their totality, but what is intended here, is to try to enable the gardaí to deal with serious abuses that arise. They are well known and have been documented by the courts. We have an obligation to do something about them.

I am satisfied that the provisions will withstand a constitutional challenge and that there has been a clear signal from the Supreme Court in this regard. The Oireachtas clearly has the right to make up its mind as to how it should go forward in these areas. The question to be asked is, how do we give the power to the Garda to deal with the type of problem I have outlined? There are no soft options. One can go to the extreme on the question of civil liberties infringements in the home and use unreasonable language about battering rams, but we should try to be fair and logical about this.

Most Deputies agree with me, and agreed very strongly on Second Stage, that I should try to close the loopholes. However, when I attempt to do so, the Deputies do not want to go down that road. I need votes and support before I can dictate what to do. I have no intention of backing down from putting in an effective provision to deal with hit and run cases, the kind of serious cases that have emerged and in which the suspects have, for one reason or another, gone scot free. Neither do I intend to go wilfully against the majority wishes of the Dáil. The greater fountain of wisdom that one party or political individual might claim to have is not something I would certainly claim.

While I am prepared to look at the situation between now and Report Stage I must repeat that there is no question of deleting the section. We must define what exactly we want to achieve by way of a provision, which will be rarely used, but which is essential to deal with particular cases. To the extent that I can get agreement from Deputies to proceed on that basis, I am quite happy, but this provision will not be meaningless, or a watered down provision which will be utterly useless to deal with the problems we face. I hope when I have finally completed my work on that, that I will be able to get overall acceptance.

When the argument is made that these are draconian, unacceptable and unusual, Deputies should know that they have been enshrined in the UK law since 1981 and I have not heard arguments about that. It is not necessary to always follow other countries but, of course, we have had arrest without warrant here for a long time. The argument the Deputies are making is that it is perfectly right and legitimate to arrest without a warrant when the opinion of the gardaí is that somebody is committing, is about to commit or has committed a crime under these laws, but once they cross the line of safety then there is something fundamentally wrong with making that charge stand. I cannot accept that as being a logical, fair position. I am prepared to try to take account of some of the strongly held views expressed here, not the exaggerated ones, those that are aimed at the media but the ones that are aimed at making sure that together we find the best answers to the problems we face.

Deputy Noonan endeavoured in his contribution to help, and talked about fatal accidents. I accept that there are many serious accidents which are not fatal. A whole range of issues arise about who caused them, whether the suspects can escape, and whether they are to be followed up in the way I suggest. A person involved in an accident is morally obliged to stand his or her ground and let the law take over, attend court and, perhaps go to prison or pay a heavy fine. No questions were asked as to how involvement in a crime affects the family of the suspect. There is no safety valve for the family, and it is not very logical to put up the point that a member of the family could be hurt. If one commits the crime that is that person's problem and we cannot protect everybody in those circumstances, and neither should we attempt to do so. I am making the point that the person who remains at the scene of the accident as we are obliged to do, will face the full rigours of the law. Are Members suggesting that the person who decides to leave and escape to his or her home should be treated differently? I do not accept that.

Mr. Noonan (Limerick East)

The Minister has defended the section on two grounds, first that it is constitutional and, second, that the power will not be abused. On its constitutionality, the only grounds he gave were that the Attorney General said it is constitutional, and, therefore, it is constitutional. Every Bill, before it goes through the Oireachtas is referred in the first instance to the Attorney General. Nothing is brought before the Dáil that the Attorney General does not deem to be constitutional. A Bill would not be introduced in the Dáil if he had a different view and yet the Supreme Court strikes down law with reasonable frequency. Every law struck down by the Supreme Court had the authorisation of the Attorney General of the day on its enactment. The present Attorney General is as good an Attorney General as any of his predecessors, but Attorneys General are fallible and their opinions have been struck down in the past and will be again. It does not strengthen the Minister's argument as to its constitutionality to say that the Attorney General said it was constitutional. If he said it was not we would not be here discussing these sections.

Mr. M. Smith

It does not strengthen the Deputy's argument to say it is not.

Mr. Noonan (Limerick East)

The Minister said the Supreme Court has given fairly heavy hints that such a provision would be constitutional, but that is not right. The Minister argued that in regard to people who escape from accidents, fatal or serious, and try to hide from the rigours of the law by going on to private property, particularly into their homes, there was a heavy hint from the Supreme Court that it might be deemed constitutional if a provision was made in law to deal with that, but the section does not do that.

The problem with the constitutionality of the section is that it is too pervasive. Under the section, if a garda knows a person takes a drink, he can call to his home three hours after he has seen the car parked outside a pub, and can make an arrest. The garda does not have to meet him on the road, he need only have the opinion that he is committing or has committed an offence. It is reasonable for a garda to be of the opinion, if he sees a person's car parked outside a pub for an hour and knows that that person often takes a drink that that person is over the limit. He can follow him home, or to some other person's house or to his place of work and arrest him. That is too pervasive and it is not at all what the Supreme Court decisions had in mind. The Minister argued very strongly that he needs provisions to close the loopholes on hit and run cases. That is necessary, but where are hit and run cases mentioned in subsection (8)?

The Minister talked about the right to life being the primary civil right, and that the rights of victims have to be protected, particularly the right to life and the right to prevent serious injury. That is true but where is that referred to in the section? The Minister is making a case that his section does not meet.

The requirements of the section are that a member of the Garda Síochána may think a person is over the limit and in that event he can enter the family home and make an arrest without a warrant. The only restraint on the member is that he must reasonably believe that the suspect is actually in his place of residence. It is not that the garda should reasonably believe that the person has committed the offence; he has to reasonably believe that the person is in the place he enters. That is the only restraint on the garda and it is far too wide. It will be struck down, because when the Supreme Court gives inclinations that changes in law might be necessary, it does so with a certain proviso and it will not support a catch-all provision like this. This is the ultimate in catch-all provisions.

Where a garda's opinion is mentioned in other provisions in the law usually a sergeant, an inspector or a superintendent is invoked. In such provisions there is a reference to somebody higher up in the ranking order being involved before the opinion is formed under some consultative process. That is quite usual. The Minister did not go down that road. The ordinary young man or woman just out of Templemore can invoke this on the basis of being of the opinion that a person is over the 80/100 relationship. That is my main objection to the provisions. The Minister referred to Members being over the top in their opposition, but he is over the top in his proposal. He said the proposal is to prevent people being killed in hit and run accidents and to still protect the people using our roads from dangerous drunks. The Minister is putting a spin on that in saying that Members will not give him that power. Members will give the Minister the power to deal with hit and run drivers, and power to try to curb fatalities on the road, but that is not what he is looking for. The Minister is looking for something that some people in Romania would have been proud of, and that is the problem with these provisions.

The gardaí are reasonable people and usually they do not abuse their powers, but there are rogue gardaí who have abused powers in the past. This wide-ranging provision should be re-drafted. It is not difficult to re-draft it and get precision into the power the Minister requests.

Mrs. Doyle

It has been said clearly and articulately that the real reason for concern in relation to these provisions is the wide-ranging, broad nature of them. Every Member would allow the Minister to extend whatever power was necessary to arrest a person who tried to avoid arrest by leaving the scene of a crime and to protect other would-be victims in this area, but that is not what these subsections state. If the Minister's only concern is to apprehend someone who has left the scene of an accident or crime, he has our support, but he needs to say that here and that is not what was said. If the Minister can be explicit and tie this section to deal with those involved in hit and run accidents, he will have virtually the unanimous support of Members.

I am not satisfied about the extent of the powers of the gardaí once they get into the home, the business place or the hotel bedroom of suspects. Why is the Minister excluding a breath test as evidence to establish whether or not someone is over the limit and allowing only the assumption of a garda that a person may be? I am not necessarily talking about someone who was involved in an accident. My understanding of the sections is that they cover much more than just accidents or hit and run cases; I may be wrong but that is my understanding of what the sections provide.

I will not quibble with whatever powers the Minister feels necessary to introduce to bring to book someone who has left the scene of an accident or crime. However, for the ordinary person going home from the pub after consuming two pints, why when the garda breaks into his bedroom without a warrant, is a breath test not requested to establish whether he has or has not over 35 microgrammes of alcohol or 100 millilitres of breath. What is the thinking? If the thinking is that the Minister is only concerned with the hit and run accident or with someone leaving the scene of the crime, I understand him, but he must say that again.

My colleague, Deputy Noonan, pointed out that there are rogue gardaí. There were 12 apostles and one of them was a wrong one. In any community or subsection of a community one gets a percentage of rogues. God knows, one does not have to go too far from Leinster House to discover there is a certain percentage of wrong ones. In every subsection of community life today there are wrong ones; that is human nature.

Dr. Upton

A few examples would help concentrate the mind.

Mrs. Doyle

Let me give an example. Even without going too far, a garda, perhaps through over-earnestness or having his mind set on a particular individual, can behave in ways we would all question. I had an example of this myself some years ago. After a previous example I gave at this Committee I hesitate to give examples too freely. Many years ago when I was a member of Wexford County Council a member of the public complained that there was an extension being built to a property without planning permission. I reported this to a planning officer. It transpired that this extension was being built by a local garda, without planning permission, that he was converting an extension into extra bedrooms for a "Bed and Breakfast" business when it was supposed to be a garage or something of that nature. I thought nothing more of it. I merely reported the matter to the planning section and said: "Sort it out, see what needs to be done". A couple of months later I was having a drink in a local hostelry and a garda whom I know well said to me: "By the way so-and-so is out to get you". I asked the garda what he meant. He said: "You got him into awful trouble about the planning permission, be careful you have your p's and q's right, your "i's" dotted and "t's" crossed. I said: "So be it". Quite legally he got me some months later for having no tail light. But he stuck at it until he got me and he was within his rights; I am not complaining.

Extend that to these new provisions, to somebody perhaps who has done something more serious and where are you? The gardaí are human beings. If one gave a garda a broad sweeping, catch-all provisions, as these have been described, there is no reason he could not have called to my home and said he suspected me of having one drink over the limit. With the limit at 80 milligrammes it is very easy to exceed it. Why could not he have barged into my house and decided to breathalyse me and say "I suspect you" and arrest me? Let us be fair about this.

Mr. Hilliard

That does not stand up.

Mrs. Doyle

Under these provisions such would be possible. The Minister's reply would appear to narrow his intent far more than the provision reads. I would like the Minister to explain whether it is only the hit and run suspect or the person who leaves the scene of an accident or crime that he is after. If he is, he has my support but if it is a broad catch-all to catch the Joe and Mary citizen coming home from the pub with two pints instead of the pint and a mouthful, which would constitute the legal limit henceforth, I do not support it.

Mr. Connolly

I thank the Minister for his contribution and understand his concern. None of us wants to tolerate or condone hit and run drivers or anybody who may cause serious injury. We are concerned about giving the Garda very special enforcement powers whenever they arrive at one's house or property. The Bill also states that one can be arrested only on that offence. A garda or gardaí may contend that a person who has not taken a drink is under the influence of drink to gain entry to the house and presumably take the person concerned to the station. If that person does not allow the garda to enter his or her property, the garda can force entry. The Bill states — if need by force. I have no problems with the general provisions of the Bill.

Will the Minister agree to take another look at these provisions to ascertain whether they could be tidied up? They are somewhat severe. I do not imagine the Minister would be anxious that they would be as draconian — if that is the word to use — in their implementation. Could they not be redrafted to include hit and run cases, those who have caused serious injury and so on? I have no problem with such cases. I am afraid that these provisions could be used by the Garda for a purpose not intended. As Deputy Doyle pointed out they could be used in a vindictive way. Generally speaking, the Garda in my constituency always have acted very fairly. I have no complaint to make about them. I must be frank and honest about that. I am merely asking the Minister to take another look at these provisions to ascertain whether they could be tidied up to the satisfaction of everyone concerned.

Mr. Gilmore

In his response the Minister referred to a case I made on the last day we met regarding hit and run accidents, the need to deal effectively with those who are involved in such accidents. It is somewhat ironic that the Minister should choose to throw that argument back in our faces today. I was arguing for something quite different from what the Minister is including in these sections. For example, I argued for giving the Garda the right to breathalyse somebody after a three hours time lapse; there is a three hour maximum on the period of time within which somebody may be breathalysed, or a blood or urine sample taken. The Minister made a very stout defence of my argument the last day. Therefore, I find it very ironic that we now have a legislative provision which says that at three hours and ten minutes, the Garda cannot breathalyse somebody who was involved in a hit and run accident but they can smash down one's front door or smash into the car in order to effect an arrest. That does not seem to be in proportion. Certainly, I did not argue for a proposal that would mean that the Garda could not deal with either hit and run accidents or somebody trying to evade the law either by slipping into their house or keeping the doors of their cars locked. I suggested — and I know Deputy Noonan and other Members suggested different possible approaches — how this problem could be dealt with. We are arguing about the very crude mechanism being used in the Bill.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Mr. Gilmore

Before the sos we were discussing hit and run accidents. Almost all Members agree this problem must be addressed but the question is how to do so. Deputy Noonan said the subsections we are dealing with do not refer specifically to hit and run accidents. Under the section if a garda thinks one has taken drink in excess of the limit he can break into a house or car to arrest the person if he wishes. The question was also asked, how the courts will interpret this in light of the possible unconstitutionality of the subsections.

We must also ask how the courts, in the course of time, will interpret the provision that force may be used to effect an arrest. A person involved in a hit and run accident may manage to get home. A garda believing this has happened may for whatever reason, decide not to use force to effect the arrest. Will the courts subsequently question the garda as to why he did not use the power given in this legislation?

These provisions which the Minister claims addresses the hit and run problem, may impede the investigation of such accidents and the conviction of the guilty drivers. If the gardaí are given power to arrest someone with the possible use of force and they do not use it, it will ultimately be an impediment and defeat the purpose of the exercise?

Even if one thought the Minister's revised intention was to address the problem of hit and run accidents, these provisions may not do that adequately. It may turn out to be not just a breach of civil liberties and an affront to this country's legal tradition but also counterproductive. The Minister's defence of those provisions cannot be sustained. If they were intended to address hit and run accidents that should have been stated. Clearly, they have much wider ramifications.

Mr. Currie

We know why the Minister is introducing these proposals and what he is trying to do. We sympathise with him and, indeed, support him in his intention. The provisions arose initially from the Supreme Court decision in March 1991 that a garda who entered a person's driveway and arrested that person under section 49 of the Road Traffic Act, 1961 was a trespasser on private property and the person was not lawfully arrested. Loopholes of that nature need to be closed. One can imagine a person being chased on reaching his driveway giving a pursuing garda the "two finger" sign or would imply it. Certainly, the Garda would feel that this was the case and, therefore, I want to do more about it and I sympathise with them in those circumstances. The Minister has also illustrated the need to close this loophole to cover the possibility of hit and run drivers, in particular, escaping due justice. We, of course, support that and I would not like anything said by me, or any Member, appear to give support to such drivers.

However, is this the right way to deal with that problem? Are there alternatives to what the Minister is suggesting? Is there another way of dealing with the problem and, at the same time, not violate the fundamental principle of the Irishman's home being his castle, like the Englishman's home being his castle?

Mr. Connolly

Deputy Currie does not sound too bad.

Chairman

Deputy Currie should be allowed to proceed without interruption.

Mr. Currie

The new Attorney General, if I may call him that, has obviously decided to shift positions. I am sorry about that because when he was sitting beside me earlier, he was talking a great deal of sense. I hope the fact that he has now moved places will not detract from the sense and conviction with which he spoke this morning. I will listen to him with even greater interest.

Mr. Connolly

Does Deputy Currie admire my intuition?

Mr. Currie

Deputy Connolly said this morning, "the opinion of the Attorney General is this, but my opinion is. . .". He was correct in saying that because in this Committee, our opinion is as worthy as that of the Attorney General. It is only when we go outside here that his opinion counts for more than ours. All of us, including the Deputy from south Tipperary, are potential Attorneys General at this stage.

Mr. M. Smith

It would require much more stability than that.

Mr. Currie

I do not intend to be distracted by these red herrings. Considering that we agree that a job needs to be done and the loopholes have to be plugged, is this the only way to do it; are there other alternatives? We have suggested that there must be alternatives without violating one of our dearly held principles, an Irishman's home being his castle, as well as the proverbial Englishman's home being his castle.

The Minister is going over the top in this regard. Some of the opposing observations made to the Minister might be similarly be described but the Minister has gone too far. This morning I said that I would listen to the Minister's reply because the strong objections from Fianna Fáil and Labour Party Members were important. I was also interested to hear how he would answer the points raised and to know whether it was his intention to look at the matter again. I understand he will consider this matter between now and Report Stage, but that is not good enough. The Minister strongly indicated to those who listened carefully that he has something in common with the emperor — he had no clothes on when he responded to the debate. Therefore, I hope he will assure us that he will withdraw the provisions now rather than waiting for Report Stage.

I am not a constitutional lawyer and I do not pretend to be but even a layman reading the judgments delivered by the Supreme Court would have to come to certain conclusions. Deputy Ferris quoted the following from Mr. Justice Griffin's judgment:

Under the law, as at present in force, that power of arrest cannot be exercised if a driver succeeds in reaching his own premises, be they his private residence or his business premises, before the gardaí catch up with him. There must have been many instances where this has occurred and the enforcement of the law had been frustrated. Although any change in the existing law is a matter exclusively for the Oireachtas, instances such as in the present case would appear clearly to warrant legislative intervention to prevent repetition thereof.

One can only agree with the learned Supreme Court judge on this, but are these proposed provisions the ones required? Would Mr. Justice Griffin have made that statement if it had been suggested to him that the legislation would include the right to enter a persons house by force without a warrant? That is an entirely different matter and is an additional factor which would make me doubtful about the Minister's assertion that the legislation will stand up to challenge. The Minister would have to feel confident to some extent, but to be fully satisfied is another matter.

The Minister also told us that he was not talking about using sledge hammers to gain entry to private homes and that those who referred to them were going over the top. The provisions refer to the use of force and whether it is hammering on a door with ones' fist or with a sledge hammer, it is a matter of degree as to the amount of force to be used and this would be up to the courts to decide. As we do not have the benefit of a decision on this issue from the Supreme Court, we have to consider what is meant by these words. The concept of using force to enter a private household without a warrant is repugnant to me and to a considerable number of Members.

I understand what the Minister is trying to do in dealing with those responsible for hit and run accidents, I resent the way the provisions are worded. The Minister seems to be putting the responsibility on those of us who oppose these provisions when he said, "are you going to vote against this legislation and be prepared to see a hit and run driver escaping the rigours of the law". No Member would for one moment tolerate that; we are all in favour of closing this loophole. The Minister said he had no intention of backing down from preventing hit and run drivers escaping the full rigours of the law. We are all in that category. We are trying to ensure that this is done in the right way so that if there is a challenge before the Supreme Court, the law will be upheld.

The Minister said that a similar provision had been the law in the UK since 1981. What difference does that make? Many provisions have been part of UK law for a long time. In recent years we saw many examples of how unjust and unfair it can be. The British do not have a written constitution, nor do they have a Supreme Court to which one may appeal. The House of Lords is the final appeal court under the British system. That is the major difference between this country and the UK and long may it continue.

Nothing the Minister said has changed my mind in this regard. The proper approach to adopt is to vote against this proposal. I will do that not only in the interests of civil liberty and justice, but also in the interests of the Garda Síochána. At some point, a garda will have to make a decision on whether to gain entry to a house. That decision may be resisted, thus placing the garda, in particular, and those in the house in danger. This is most likely to happen in the early hours of the morning. For example, a garda pursuing a person involved in a hit and run accident who manages to get into his or her house, is unaware of the risks if he gains access. That is a dangerous situation to place a garda in. That is another reason to exercise care. We are in favour of the concept and committed to closing the loopholes, but the Minister is not going the right way about it.

Chairman

It may be of benefit to Members to note that the Minister has indicated his intention to technically withdraw this amendment.

Mr. Currie

I did not realise that. As a man of some political judgment, I assumed the Minister would withdraw the amendment, but I did not understand he had said that.

Mr. M. Smith

I said I was not prepared to water down the provision so as to leave it meaningless in dealing with problems we must face. In that context, I will resubmit my amendment on Report Stage.

Mrs. Doyle

Will the subsection be reworded?

Mr. M. Smith

There will be implications for the subsection. I will not make a commitment because, in the final analysis, I must deal with the problems facing me.

Mr. Connolly

Will the Minister review the sitution?

Mr. M. Smith

That is what I said this morning, but I do not want Deputies to be under any illusion in this regard. Deputy Currie misunderstood what I said, to some degree. I went to great lengths to explain the problems I faced and how they could be resolved. I could not put meaningless provisions before the select committee which would not deal with those problems. The closing of loopholes calls for some pain and change and there are no easy solutions. There is, however, considerable support for what I am trying to do. The argument is about how this is done.

Mr. Connolly

Will the Minister look at this before Report Stage to see what may be done to make it acceptable to Members?

Mr. M. Smith

Hit and run accidents are one example. Drink driving charges are serious and are, potentially, in the same category as charges that follow hit and run accidents. I want to reflect on the representations made this morning, but this will be difficult and nobody should be under any illusion in this regard.

Mr. Connolly

Do we agree to look at this matter on Report Stage after the Minister has reconsidered his position?

Mrs. Doyle

Will Report Stage be held in the Dáil Chamber?

Chairman

Yes.

Mr. Connolly

The Minister has agreed to reconsider this in a effort to meet the wishes of Members, including myself, who expressed reservations. We must take into account hit and run accidents and those who are responsible for them.

Mr. Hilliard

On a point of order, this is serious and it is wrong to give the public the impression that the Minister, or the Government, have weakened their position, as the Opposition Deputies are doing.

Chairman

That is not a point of order.

Mr. Hilliard

It may not be a point of order, but it is important that this is clarified.

Ms. Keogh

I am glad the Minister will re-examine this section before Report Stage. The emphasis of what the Minister said was the opposite to what we have been told. His argument was in two parts. One related to the unconstitutionality of these provisions and this was mentioned by many Deputies. The Minister said he was satisfied they would stand up to a constitutional challenge and that he had considered this with the Attorney General. As we have seen, the Attorney General is not infallible. I would like the Minister to re-examine the many arguments made by all sides in relation to this issue.

The Minister was vehement about hit and run accidents and we agree with him in this regard. Every Member spoke about that difficulty, not only when drink is involved. People consider this to be a serious crime and Members alluded to this on Second Stage. The Minister need not have difficulty in relation to that aspect.

We are concerned about the protection of people and the inviolability of the home in most circumstances. I am glad the Minister will re-examine these provisions.

I would like an undertaking from the Minister that he will redraft this section, because what we have before us in not acceptable. The Minister should accept that having listened to the arguments made on all sides of the House. I hope he will take our views on board. He may have considered some of the arguments to be extreme, but this is what happens in a debate. In the main we have had a reasoned debate on this issue.

Mr. Connaughton

When I raised the question of hit and run drivers last week my remarks were slightly out of context. Like other Members I regard hit and run drivers as moral bankrupts. They are guilty of a very serious crime and we should do what we can do to ensure that they are brought to justice. Having listened to the debate and studied the proposals I am satisfied that they probably will be too severe on persons who commit lesser offences. That is the biggest problem. Whatever mechanism the Minister finds, when he looks at this again, the offences should be categorised. All categories of hit and run drivers, whether they are drunk or not, should be prosecuted for this serious offence. This is a serious crime and it is a great slur on anyone to say that they did not have the moral courage to take their punishment when they caused an accident due to drink or bad judgment. I sympathise with the Minister in what he is trying to do and I make no secret of that, but the person who drafted that subsection went for overkill. If we over penalise innocent people in this regard we have done a bad day's work here.

Unlike Deputy Hilliard, I do not see it as a sign of weakness if the Minister or the Government re-examine these provisions. For a committee system in any parliament to work it should be possible to take another look at matters of this description, that is our function here. I accept the Minister's comments that a balance must be struck on this issue. Many people will say that the Minister has done well in trying to nail the hit and run drivers and those who could not be prosecuted before because of the loophole in the law, but other people who are just as law abiding as any Member are genuinely worried about the extent of the power the Minister is seeking. It is overkill.

I hope my comments are not excessive, they are not intended to be because I see some good in the section. The Minister will be doing everybody a good turn if he takes what he has heard in this debate into consideration. It should be possible to come up with a formula of words which will do what we want in everybody's best interests. I have no doubt the Minister will do that. Will the Minister, if possible, indicate exactly where he thinks the section might be changed; we are entitled to know.

Dr. Upton

A Bill seldom passes through the House without somebody suggesting that some part of it may be unconstitutional and Ministers reply by saying that he has had the best advice possible from the Attorney General. The constitutional argument will, ultimately, be resolved in court.

Both sides of the argument are concerned with extreme cases. Those on the Opposition benches have cited extreme hardship cases and totally undesirable circumstances which may arise from the implementation of this section. The Minister cited some extreme cases which could escape the due process of law if appropriate measures are not included in the Bill. Can the Minister include the specific sets of circumstances he is concerned about? He could include hit and run accidents, accidents generally, and other circumstances where it may be desirable to provide the type of power contemplated, but this section does not stop at that. That is where the difficulty arises.

The section is much broader than it needs to be and this gives rise to the concern of those on the other side of the argument. Is it not possible for the Minister to be specific on when he sees these powers being used? I welcome his flexible approach in relation to the debate and the fact that he is prepared to consider the arguments being made today because otherwise these debates would be a waste of time.

Mr. Ferris

I listened with interest to what the Minister said and I was pleased he recognised that this section creates a problem. The Minister, having listened to us, said he also found difficulty with this section. He said the only reason this section was included was to close off loopholes. It is obvious, as the Minister confirmed, that we only want to close off important loopholes. Some Members want some smaller loopholes to remain. That would be the worst of all worlds. The case made by Deputies Connaughton and Upton reflects a genuine concern that people will be prosecuted under this section whom none of us intended to have apprehended. Section 10 (2) states that a person with a level of 80 milligrammes of alcohol per 100 millilitres of blood shall not drive or attempt to drive. Subsection (8) states that for the purpose of arresting that person a garda may enter, by force if necessary, a premises in order to apprehend that person. That is why people are so concerned about this section.

If the Minister, between now and Report Stage considers all the reservations expressed, I have no doubt he will meet the case we are making. We do not want loopholes for people who are guilty of serious crimes such as hit and run accidents and accidents which result in hardship to families and serious injury to people. The Minister should categorise such offences in this section; we do not want a catch-all section.

I do not know of any Minister in any Government who gave a commitment on Committee Stage to look at something positively before Report Stage and followed through on that. A commitment was given to the select committee, it is not a pig in a poke. The issue will be debated on Report Stage before all the Members of the House and that is a useful process that will ensure that the Minister takes our reservations on board. He has given that commitment. That is how I interpret it, that is what I want and I am prepared to support the Minister if that is what he wants to do.

Mr. E. Walsh

I have sympathy for the Minister who is trying to deal with the issue we have all discussed. My concern is that the power being sought to deal with an unspecified type or nature of crime — it was not made clear on specific for what it is to be used — is dangerous. If, for example, a house is forcibly entered by seven gardaí investigating a serious crime, one can imagine the mayhem that that will cause in that house. If the occupants are old and infirm such an occurrence generates fear. That is serious. I know of occasions when the consequences of the Garda lawfully entering people's houses were serious. Property may be damaged in the process and there may be a confrontation which can lead to other charges. The situation can become serious when one is in such a confined area wiith a large force of gardaí faced with the difficulty of dealing with a problem, unless it is clearly specified what type of problem and what offence they are dealing with. The Minister, in considering the representations made, should consider using that section for a number of specific listed offences. It should be made clear to the Garda that the power is only vested in them in regard to those offences.

Mr. M. Smith

I am glad that since my contribution this morning the debate has moderated considerably. This is the second week in succession that this has happened. Last week I was under enormous pressure to go soft on drink driving offences in terms of alcohol levels.

Mrs. Doyle

Not from all of us.

Mr. M. Smith

In the afternoon I was under considerable pressure——

Mrs. Doyle

The Deputy is misrepresenting what was said.

Chairman

The Minister should be allowed continue without interruption.

Mr. M. Smith

——to go further. It is clear that every contribution this afternoon supports me in my endeavour to close off certain loopholes so that people who have broken the law in a serious way can be apprehended.

Mr. Currie

Is the Minister making a case for rescheduling meetings for the afternoon?

Mr. M. Smith

I would have no problem with that but it seems it takes a contribution from me, at whatever time, to get the Deputy back on the rails.

Mr. Currie

The Minister has a fertile imagination.

Mr. M. Smith

The intention in granting this power is simple. We want to do what the Supreme Court suggested in terms of closing off a loophole which frustrated the enforcement of the law. It is not intended to adopt a heavy-handed approach, and any powers have to be used reasonably. As I said I am prepared to look at the text before Report Stage to see in what way I can improve it. However, it should be remembered that the bottom line is that a provision like this is essential. Members should be under no illusions about the fact that any changes in wording I propose are not going to make this provision such a watered down version that it will be meaningless. Who-ever else might be prepared to go soft on these issues, I certainly am not.

I have been asked to detail what I have in mind. The proposal before the select committee is to delete this section. Nobody has put any alternatives to me. I am prepared to listen to alternatives which would bring into effect what I intend but I have not heard any. What is the history of this issue? Time and again we have been told that the road traffic Acts are riddled with loopholes. We have heard of extraordinary court decisions where most people would say an accused person should not have been dealt with in a certain way. The courts in turn tell us that is because of loopholes which we should close off. Once we attempt to do that, there is a real problem. I am now proposing to withdraw this provision on the technical basis that I am resubmitting on Report Stage a provision that will take account of some of the fears that have been expressed but which in no way departs from the fundamental and primary aims of making our road traffic laws capable of strict enforcement and ensuring that people who commit a breach of those laws are apprehended.

Mr. Currie

No Member has asked the Minister to do that.

Mr. M. Smith

It is an inevitable consequence. Deputy Currie knows as well as I that it is not possible, and I do not want the public to be under any illusions about this, to put into the Statute Book a law which will deal with exceptional, serious accidents causing injury and death. A person commits a crime in terms of drink driving when he or she is over the limit.

What has happened up to now gives a strong indication to all that is a close link between drink driving and serious accidents. It is not possible to confine a law, as I have been asked to do, to accident cases. I am trying to change a general culture so that there will not be victims of accidents on our roads to the degree that we have experienced up to now, and which, as I said many times, is unacceptable. The room to manoeuvre is not great. The bottom line is to ensure that a provision of this type is put in place. Bearing those principles in mind, any way that I can meet the democratic wishes of the House I am, naturally, obliged to do so. However, so far, nobody has come up with a better alternative. There may well be one.

Mrs. Doyle

How does the Chair intend to structure the remainder of this debate. There is a serious risk of us going around in circles at this stage. We are dealing with the most important part of the Bill and, I suppose, the most controversial subsection. It deserves our close attention. The Minister has pulled back a little in that he is withdrawing his amendment, reserving the right to resubmit it on Report Stage. That indicates that he has accepted that there is some validity in the arguments put forward last week and this morning. I am not clear as yet to what extent he accepts the validity of our reservations. He asked us to offer alternatives. He has the back-up of his Department and the Civil Service as well as the Attorney General who has been much quoted to us here to help him produce a wording.

No Member suggested softening the line on the hit-and-run driver or the drunk driver who has been involved in some drink-related incident on our roads, but we all have major reservations about the broad, sweeping powers included in this subsection.

It is not just the Government's amendment, there is more to the subsection than the tightening up that this amendment would bring that causes me concern. I do not have legal training or the back-up of a Department of the public service to help me redraft this subsection but I suggest, with respect, that the Minister does. What expertise he does not have in the public service he can buy in terms of a consultant's or senior counsel opinion. With respect, I suggest the Minister might consider this again.

The Minister understands our concerns which are not to make life easy for hit-and-run drivers. I would support anything the Minister wants to do to nail hit-and-run drivers providing, as another Deputy said, he specifies the type and the nature of the crime to which these provisions are to apply. All we are asking of the Minister is to tighten up the nature and type of crime to which these provisions will apply. The subsection is far too broad ranging for us to accept but the Minister has our full support in dealing with hit-and-run drivers and anyone else involved in a serious drink-driving related incident. The Minister should not put any twist on our words.

Mr. M. Smith

Twist is an unfortunate word.

Mrs. Doyle

The Minister has pulled back a little and accepted our reservations but I cannot understand to what extent he has accepted them. If the Minister was more specific as to what he would hope to bring back to us on Report Stage it would help us to conclude this discussion.

Mr. Connolly

I thank the Minister for his commitment and, indeed, his great understanding and what we are endeavouring to do. It is up to me as a legislator to come up with a formula of words. I have back-up facilities at my disposal to do so before Report Stage so as to allay the fears of ordinary decent very law abiding people. I shall not be part of a situation where those who commit serious offences can evade prosecution.

Mrs. Doyle

They got to the Deputy over lunch.

Mr. Connolly

Nobody got me. Deputy Doyle has great intertest in another matter and I wish her every success because I know she will be a very colourful leader.

Chairman

Deputy Connolly should deal with the amendment.

Mr. Connolly

I was derailed and it was not my fault.

(Interruptions.)

Mr. Connolly

I know the Deputy would like me to take charge of public relations for her and I would do a very good job but she cannot have me. My party has had to contend with me but I am able to take all people's views on board and bring my party around to my way of thinking.

(Interruptions.)

Mr. Connolly

I am pleased the Minister has taken my earlier remarks on board and will look at the situation. I wish Deputy Doyle success in her forthcoming leadership campaign.

(Interruptions.)

Mrs. Doyle

I note the Deputy did not say that this morning when Deputy Noonan was present.

Mr. Connolly

He did not hear me; I am a Leinster man.

Mr. Currie

I am enjoying this but I have no intention of following either Deputy down that particular road. I am sorry the Deputy moved from this side of the House because he was under good influence when sitting between Deputy Doyle and myself. Who knows what the future holds.

If the Minister is as satisfied as he professes to be then why is he withdrawing this amendment? The point was made that a Bill rarely comes before the Dáil but someone questions its constitutionality. The Minister has to say he has satisfied himself as to its constitutionality. Did the Minister have to go as far as he did this morning in saying he was fully satisfied that it will stand up to such a challenge? Usually one hears that a Minister is advised by the Attorney General that proposals will stand up to a challenge but the Minister said he is fully satisfied that it will stand up to a constitutional challenge. Why then is he now withdrawing this amendment? We are prepared to allow the Minister his fig leaf but he does not have to make it into a song and dance act to disguise this withdrawal of the amendment. I wish the Minister would come clean in relation to this.

Ms. Keogh

I was somewhat disappointed with the Minister's response because it is wrong to try to give the impression that if reservations are expressed about the wide dimensions of this aspect of the Bill it means that one would wish to go soft on those guilty of charges arising out of hit-and-run accidents. The Minister should remember that all Members welcomed the broad thrust of this Bill. Obviously, in the nature of debate, reasonable people will sit and listen to each other and will, perhaps, accept a good, logical argument on a particular aspect of a Bill. That is the way it should be. From that point of view I was disappointed with the Minister's response. I will not labour this point because I am in danger of being guilty of repetition.

The Minister should look again at this section and give an undertaking that he will take on board the many arguments made by Deputies on all sides of the House about the wide-ranging powers he is proposing to give to the Garda Síochána in this section. He should close off the loopholes, particularly in relation to hit-and-run accidents regardless of whether they have to do with drink. We are all extremely concerned about this and we would certainly not welcome any loophole being left which would mean a hit-and-run driver would escape unpunished.

Mr. M. Smith

I have come clean on this issue and in no way have I, in withdrawing this amendment and agreeing to look at it again, done other than endeavour to explain that a power like this is required so that nobody will be under any illusions. Its technical withdrawal is in order to enable us re-examine it with a view to incorporating an essential provision. Members should bear in mind that some of the comments could be interpreted as other than coming absolutely clean. If I were, as Deputy Currie seems to suggest, to take on board all the views that were expressed this morning I would be watering down this provision and virtually making it meaningless. All Members know that.

I listened to the comments that were made and attempted to take the views of Members on board. I am perfectly happy to work between now and Report Stage to improve this provision taking into account some of the essential features of what was said this morning. It is on this basis alone that I agree to examine the provision and I do not want anybody to have a wrong view of what I have in mind. There should not be any misunderstanding that a provision of this kind, or one similar to it, is essential in view of the problems we face and the loopholes we wish to close.

Amendment, by leave, withdrawn.

Question proposed: "That section 10 stand part of the Bill".

Mrs. Doyle

In view of our dissatisfaction with subsection (8) we cannot agree to the section.

Chairman

As there are fewer than 31 Members present we are required to wait eight minutes prior to taking the vote to allow absent Members to attend.

Question put.

The Select committee divided: Tá, 18; Níl, 10.

Tá
Ahern, Michael.	Nolan, M. J.
Ahearn, Noel.	O'Keeffe, Ned.
Briscoe, Ben.	O'Leary, John.
Broughan, Tommy.	Penrose, Willie.
Connolly, Ger.	Ryan, Eoin.
Ellis, John.	Smith, Brendan.
Ferris, Michael.	Smith, Michael.
Hilliard, Colm.	Upton, Pat.
Kenny, Sean.	Walsh, Eamon.

Níl
Bruton, Richard.	Gilmore, Eamon.
Connaughton, Paul.	Keogh, Helen.
Currie, Austin.	McGrath, Paul.
Doyle, Avril.	Nealon, Ted.
Finucane, Michael.	Noonan, Michael (Limerick East).

Question declared carried.