I welcome the Minister for Justice, Equality and Law Reform to the meeting, the purpose of which is to commence the debate on Committee Stage of the Criminal Justice Bill 2004. Amendments Nos. 1 and 2 are related and may be discussed together.
Criminal Justice Bill 2004: Committee Stage.
I move amendment No. 1:
In page 5, subsection (2), line 34, after "Act" to insert ", other than Parts 11 and 13,".
Amendment No. 1 seeks to exclude Parts 11 and 13 from the standard commencement provision in subsection (1) to allow special provision to be made for their commencement instead. Parts 11 and 13 deal with civil mechanisms which include anti-social behaviour orders in respect of adults and children, respectively. I propose to make special provision for their commencement by way of amendment No. 3. My amendment includes the provisions set out in Deputy Ó Snodaigh's amendment.
Amendments Nos. 2 and 5 in my name are related and I am surprised the grouping does not include both of them. While I am opposed to ASBOs for children, I am willing to consider the matter again after the Children Act has been implemented in full for a period of ten years. At the end of that period we will be in a position to establish whether there is a requirement for additional legislation. If the Act had been properly resourced and fully operational before now, we might be looking at a different level of anti-social behaviour which is destroying many fine communities. Groups of young thugs are terrorising entire communities, especially their elderly members, and there is a need for a response to the problem. The Minister's response in the Bill is disproportionate and unnecessary.
We have the Children Act, the provisions of which are proportional and were prepared over a long period. As the Minister of State with responsibility for children admitted, the Act was intended to establish a framework for a modern and progressive youth justice system reflecting best international practice. Those aspects of the Criminal Justice Bill 2004 which relate to children run contrary to that intention. While there are many flaws in the Bill the Minister has presented to us and we will go through it gradually, it should not become operational at least until the Children Act is reviewed. ASBOs — the Part in which I seek a restriction on its operation — allow for a serious and open-ended curtailment of some of the fundamental rights of individuals, in this case, children. The relevant provisions are disproportionate. ASBOs are inconsistent with the European Convention on Human Rights and the Convention on the Rights of the Child and, as I stated, might be unnecessary. If there was a fully functional Children Act, those provisions which are not fully operational might have the desired effect.
It has been proved ASBOs fail to address their stated purpose in reducing anti-social behaviour. Studies conducted in Liverpool have demonstrated that they extend the discretionary powers of the police without improving accountability. Children are named, shamed and criminalised. That is not supposed to be the intention. ASBOs fastrack young people into prison and undermine due process by allowing hearsay evidence to be heard. To my knowledge, the Minister has failed to produce any evidence which demonstrates that they work.
The points outlined by the Irish Youth Justice Alliance, other organisations and individuals working towards the reform of the juvenile justice system are correct. They raise a number of issues. They also believe this Part of the Bill is disproportionate and unnecessary, that ASBOs will involve the imposition of penal sanctions for a breach of an order made in civil proceedings and that, as I stated, they are inconsistent with the European Convention on Human Rights. They further believe the conditions imposed may involve disproportionate interference with personal and private rights and civil liberties, and that a breach of an ASBO will be a criminal offence. However, because ASBOs are civil orders, the rules of evidence are reduced such that the burden of proof lies on balance of probabilities rather than beyond reasonable doubt. This constitutes the denial of the right to a fair trial. In the case of criminal proceedings against children, the normal safeguards should be augmented, not diminished. ASBOs run contrary to the UN Convention on the Rights of the Child and other international standards and guidelines on youth justice. In particular, the Government's proposals run contrary to the logic of the Children Act which, as I stated, took 30 years to draft. The Minister should not reverse its central thrust, especially when it has not been properly resourced or fully operational for the past five years, despite being enacted in 2001.
While the definition of anti-social behaviour employed by the Minister is a marginal improvement on that which is being used by the British, it is still too vague and has core problems which have been outlined by others. Therefore, we should either strike it from the Bill or at least adopt my amendments, Nos. 2 and 5.
Before I comment on the amendments, let me clarify one issue. In them there is a reference to Part 13. With regard to the list of amendments circulated, the section that deals with anti-social behaviour by children is referred to as Part 12A on page 137. Is that the same?
It is Part 12A of the Children Act but it is Part 13 of the Bill. It is a little confusing.
This highlights the relationship between the Children Act and this legislation. Part 11 refers to anti-social behaviour generally.
No, it refers only to adults.
Part 13 refers to anti-social behaviour by children, which affects Part 12A of the Children Act.
The debate on anti-social behaviour has been confused by the focus on ASBOs. Such behaviour is one of the greatest and most insidious phenomena to emerge in our society in recent years. It has been clear for some time that anti-social behaviour must be tackled because those who are guilty of continuous minor criminal or quasi-criminal behaviour are totally destroying the lives of people in many communities. Such behaviour has evidenced itself in a variety of ways. It can involve late night drinking or drug taking in open spaces, intimidatory behaviour, boy racers putting the fear of God in people on estates and streets, and so on.
Anti-social behaviour is so prevalent that it must be confronted. The main difference between myself and the Minister on this issue is I believe it must be confronted in a range of ways. That is why the 30-point programme I produced on behalf of Fine Gael last year mentioned ASBOs as one part of the approach. A range of issues must be tackled and a range of approaches must be tried before we have a hope of tackling anti-social behaviour. The starting point is it must be tackled. We will have a much more detailed debate on the issue of anti-social behaviour when we debate later amendments.
While I will press for the early and complete implementation of the Children Act 2001, which is part of my approach to deal with anti-social behaviour, I find it perfectly outrageous to agree with a proposal that measures such as the introduction of ASBOs should be deferred for ten years when all sections of the Children Act will be fully operational. I reject that approach. All steps should be taken immediately to address anti-social behaviour and that includes the use of ASBOs. I have consistently called for their introduction since I took up this portfolio. They will have a role in dealing with anti-social behaviour, which I do not wish to overemphasise.
I reject the selective quotations from British reports on the alleged failure of anti-social behaviour orders. Mistakes have been made and we should ensure that we do not repeat them. However, we should not miss the wood for the trees. Anti-social behaviour orders have proved successful in many cases and we should try to emulate that success as part of a campaign against anti-social behaviour.
I wish the Children Act to be fully implemented as soon as possible. The delay in so doing since it was passed in 2001 is outrageous. Many of the Act's provisions have not been implemented or properly resourced. Amendment No. 4 addresses my concerns regarding undue delay in the implementation of the Criminal Justice Bill 2004, when enacted. I oppose any delay in implementing the provisions of the Bill following its passage through the Oireachtas. Many of these provisions, including those relating to anti-social behaviour, are badly needed. We should put them into place without delay. I do not support amendments Nos. 2 and 5.
I want the Bill to be passed in a sensible, reasonable and constructive fashion and its provisions implemented and enforced without delay.
I welcome the Minister to the debate on the Bill and also to the broader debate on crime. I hope for an intelligent and enlightened debate on this issue. We must take an objective and professional view of crime. We must balance the debate by listening to constructive ideas from members of different political persuasions. I support amendment No. 2 and I want to see the Children Act implemented in the broadest sense of the word.
Concerning crime and child misbehaviour, we must open our minds because we have not faced the broader issue of children in crisis and dysfunctional families. Helping these families must be part of any solution and early intervention is better for everyone because in many cases it may be too late when a child reaches the age of 12 or 13. There are streets in Ireland where 52% of children are not ready for primary school. In some estates on the north side of Dublin, 26% of children display significant behavioural problems before they start school at four years of age. On some streets, 31% of children aged four or five are constantly absent from school. We must intervene early if some children are showing signs of major problems at this young age. Quality pre-school support must be part of the solution to crime and is covered under the Children Acts.
How can we expect any child to be normal when there are drugs and violence — for example, cocaine-fuelled fights — in the home? It is too much to expect a child to attend school and act normally on the day following such an occurrence. We must help dysfunctional children when they are young. These problems will not be solved by ASBOs; they will, however, be solved by early intervention, quality community policing and the implementation of existing legislation. Bad policing practices are not acceptable.
I am annoyed that there has been no discussion about crime prevention. Two or three good community gardaí in any one area can reduce anti-social behaviour by 50% to 60%. I received positive responses to the questions I put to the Minister on the issue. Gardaí in my constituency effected a dramatic reduction in petty anti-social behaviour through early interventions and by talking to the individuals and families concerned. We should support such common sense community policing methods. On our visit to England, we saw the positive work being carried out by police patrols in housing estates and by reserve police officers who assist drug addicts, teenagers and child prostitutes. These approaches should form part of any sensible strategy to deal with crime.
The issue of psychiatric problems among children and teenagers is not being addressed. Such problems require medical intervention, not criminal solutions. There is no option but to provide services to the hundreds of teenagers in this State who suffer with major psychiatric problems.
If we are serious about preventing crime among young children, we must realise that every young child requires stability. Children from poor families who do not get into trouble tend to live in stable homes. The Government must assist families in creating stable environments.
I urge people to open their minds to sensible ideas on crime and to emphasise crime prevention. I am sick and tired of the reactions to violent crimes such as the shooting of Donna Cleary in my constituency and I would like to hear sensible and constructive suggestions on crime prevention.
Drug crime has got out of control in terms of the level of violence used and the people involved. The Minister will have to crack down on this problem because it is unacceptable in any society. People are fuelling themselves on cocaine and getting involved in violent assaults, details relating to many of which do not even reach the newspapers. We hear from our constituents about the degree to which families are intimidated by drug gangs. Such families do not inform the Garda because they fear being attacked or burned out of their homes and, often, the only person they can approach in confidence is their local Deputy or councillor.
I would like my views to be acknowledged because we are not just debating amendments, we are dealing with the real world. I strongly support amendment No. 2.
Deputy Finian McGrath was allowed a great deal of leeway because it was his first contribution.
I welcome the Minister and his officials. This legislation touches on the core issue relating to the quality of Irish society in terms of how it has changed, where it stands and where it is going. Our society has been subjected to a huge amount of change, pressure and stress in recent years. The Celtic tiger has resulted in our young population no longer having to leave the country and the young populations of other countries coming here for work. Our society has been urbanised, it is pluralist and diverse and many changes will result.
Criminality is one of the areas the Minister seeks to address in the legislation. However, the Bill before us plays only a small part in that since the amendments tabled are the meat of the proposed legislation. There are amendments on the misuse of drugs, anti-social behaviour orders, fireworks and codification. As much of what is proposed is contained in the amendments rather than in the core of the Bill, the Minister would need to reconsider the Title which reads a "Bill entitled an Act to amend and extend the powers of the Garda Síochána..." and so on. The legislation as passed will be different from, and out of kilter with, the Title. Does the Minister intend to amend the Title to reflect what we propose to do with the plethora of amendments he has tabled? He should have given consideration to codifying them to enable us to deal with them in groups.
The issues raised in the first two amendments relate to the causes of crime. Anyone wishing to address the causes of crime should not start in the Department of Justice, Equality and Law Reform because one will not sort out the causes of crime there. The Department compounds the problem in many cases because of the bureaucracy it imposes in terms of law enforcement officers dealing with problems in a meaningful way, the public being able to report offences, the courts responding in a proper fashion to cases that come before them — a matter about which the Minister and the Taoiseach complained recently — and the prisons being an inadequate response to crime. We have not had an opportunity to have a debate on this issue or to look at Irish society in the 21st century and the agencies of State, including the Garda, involved in the criminal justice system for the past century. At least in Northern Ireland, they set up a policing commission which involved the police in examining the nuts and bolts of how policing structures operated. As a result of not involving the Garda here, there is a confrontation between the Minister and the Garda Representative Association and the Association of Garda Sergeants and Inspectors similar to the confrontation between him and the Prison Officers Association for the past three and a half years. That is not the way forward. We should move forward in an inclusive and open manner to identify problems with the structures and adopt a broad-brush approach to resolving them. Lack of an opportunity to do that is partly responsible for our failure.
The heads of the original modest Bill were published by the Minister with great fanfare in April 2004. We have since been going around in circles and making little progress. Now we are expected to deal with a vast body of amendments in a short space of time, which is totally wrong. We did not have an opportunity to place the proposals in their proper social context because we were never given the opportunity to debate them.
The Labour Party has made it clear that it only envisages anti-social behaviour orders operating as a last resort and only on implementation of the Children Act 2001. On the sections dealing with juvenile justice in the Act, only two of the ten sections have been activated for want of resources and personnel. There is no sense in talking about introducing anti-social behaviour orders, the provisions for which run parallel to and overlap with the Children Act 2001, unless there is a commitment to provide resources to implement the sections of the Act which have not yet been implemented. Who would have thought that the age of criminal responsibility would still be seven in 2006? Nobody in the country thought it but that is the case because the section dealing with the age of criminal responsibility was never activated. As a consequence, the Minister of State with responsibility for children is making merit out of raising the age from seven to ten years, in spite of the fact that it was raised from seven to 12 years in the Children Act 2001. He is, therefore, decreasing it by two years. This is partly responsible for the awkwardness that characterises the thinking behind anti-social behaviour orders. The Labour Party is committed to establishing 12 years as the age of criminal responsibility. We took it that it would be raised to 12 years under the Children Act 2001, irrespective of the exceptions for which the Minister is providing. He has made provision for major exceptions which coincide with the legislation establishing anti-social behaviour orders. This issue must certainly be addressed.
If one good thing occurs as a result of the Bill, it ought be that there will be a commitment that the Children Act 2001 will be resourced properly with funding and personnel. It would be wonderful if the Minister could tell us this will be done but I do not believe he is in a position to do so. Unless he can do so, we will be working with inadequate proposals, particularly as we discuss anti-social behaviour orders. Perhaps the Minister of State will try to address this issue when he is present but I cannot envisage us having a satisfactory discussion on the Bill unless there is a satisfactory commitment regarding the Children Act 2001.
Community policing is the subject of one of the great proposals included in the Garda Síochána legislation but so far we have not seen any proposals to make it work effectively. It ties in with all the provisions we are trying to address under this Bill, including preventive as well as good, accountable policing on the street. We do not have accountable policing. As a consequence, nobody knows who is responsible for what. Since nobody knows, nobody is responsible for anything. The same holds true regarding the manner in which we are dealing with the aspects of the legislation pertaining to children. Three Departments are responsible. Therefore, nobody deals with the matter effectively. We hope this issue will be teased out and addressed when we discuss the section dealing with the youth service. Community policing must be put in place and resourced, and recruitment must take place, before we deal with the criminal justice proposals before us.
Events at the Morris tribunal are very much in the news. The Minister must make a commitment regarding mandatory videotaping of all interviews that take place in Garda stations. He has stated that he believes up to 94% of statements are recorded in Garda stations in which installation has taken place, which is in only half the Garda stations in the country. I pointed out that such facilities have yet to be installed in Dundalk Garda station, which is one of the biggest in the country. Why are they not installed in that station, as they should be?
I wrote to the Deputy yesterday.
I am pleased the Minister has done so.
I believe it has happened now.
If that is the case, it happened very recently.
Dundalk Garda station is one of the key stations and should have such facilities. I look forward to reading the Minister's letter. A report in this morning's edition of The Irish Times states: “Bugging in Garda stations of suspects and their solicitors was widespread and this was known by senior officers”. This is a very serious and substantial claim by a detective sergeant, who further claims that he informed assistant commissioner Kevin Carty, and chief superintendent Austin McNally, when carrying out the report into happenings in Donegal, which has never been published. If the Minister would publish the report it would be very useful for us all to have it.
If we are to give extra powers to the Garda and we are proposing to extend the period of detention not for arrest but just for questioning, which did not apply in law until 1984, to 24 hours with a rest period of 8 hours — 32 hours altogether — we must provide the safeguards. The only proper safeguard is that the interview is recorded on audio and video tape. It is high time we did so, in the interests of both the suspects and the Garda. We could eliminate all the trials within trials which take place every day in serious trials, where courts must first determine whether evidence is admissible because an allegation may be made that the interview took place under duress. Having the interview videotaped eliminates any such concerns. Many of the provisions of this Bill and of the Garda Síochána legislation before it emanated from recommendations of the first two reports of the Morris tribunal. The next report will make strong recommendations regarding other matters.
In 1979 Judge Barra Ó Briain recommended to the then Government, following the scandal of the activities of certain gardaí in the 1970s, that all Garda stations should have video and audio recording facilities. It is more than 25 years since that report was published. While the Minister has done more than any other Minister in providing such facilities, nevertheless, the law does not yet require interviews to take place in those circumstances. If the equipment is in place, let us make sure that it is used and let us make it a statutory obligation to do so, which would give direction. We sometimes hear that gardaí did not know that circumstances changed and understood that they were supposed to get a confession by any means. If it is put in a statutory fashion there is no excuse whatsoever.
There are many good things in the Bill although some other aspects of it are not so good. We would all like it to be passed as expeditiously as possible. There must be balance in respect of the Children Act 2001 and the mandatory interviewing of all suspects in custody.
Does Deputy Jim O'Keeffe wish to contribute at this stage?
Perhaps I will allow the Minister to speak. I had not realised that we were getting into such a broad range of issues.
That was not the intention, but I decided not to stop members from speaking broadly in their first contributions.
I agree with Deputy Jim O'Keeffe that anti-social behaviour orders are not the be-all and end-all of measures aimed at controlling anti-social behaviour. Most anti-social behaviour is criminal in some other context. Anti-social behaviour orders are being introduced to deal with sub-criminal behaviour that is extremely corrosive of society. If an elderly person is being jeered when he or she goes to the shops every day, those engaging in such behaviour cannot be charged with "jeering an old person" as there is no such offence. Such behaviour can make someone's life an absolute misery, however. Other examples of forms of anti-social behaviour which make some people's lives a misery include bullying, throwing one's weight around on an estate and staring at people in a way that is designed to intimidate them.
I agree with Deputy O'Keeffe in one respect. Deputy Ó Snodaigh spoke about studies in Liverpool and other places in Britain. The great majority of right-thinking people in Britain and in Northern Ireland are glad that anti-social behaviour orders have been introduced because they have worked very well. It has not been proposed by any significant section of the population of the United Kingdom that the legislation providing for the orders should be repealed or the orders should no longer be used. When we decided to introduce anti-social behaviour orders in Ireland, we were careful not to follow the British model slavishly. The preconditions for the deployment of such orders are significantly more protective in Ireland than they are in the UK.
The regulations we are putting in place will help to protect young people in particular. The Minister of State with responsibility for children, Deputy Brian Lenihan, will outline to the select committee the extent to which the use of anti-social behaviour orders will be restricted under the provisions he has crafted. Anyone who suggests that the orders will be used as a weapon of first resort, or to criminalise children on a gratuitous basis, is simply wrong. Anti-social behaviour orders will not criminalise anybody — they will simply tell people to refrain from making other people's lives a misery. They will have as much criminal content as a protection order in a family dispute, for example. If one consciously breaches an order, however, that will be a matter for the criminal law. That distinction has to be borne in mind.
Deputy Ó Snodaigh suggested that we should defer the introduction of anti-social behaviour orders for ten years. I remind the Deputy that it will be 2016 by then when, I am sure, we will be in a totally different situation, in line with his party's game plan.
That is my point exactly.
Perhaps the law in Northern Ireland will be extended to the whole of the State in those circumstances.
I doubt it.
I am being facetious, of course. If the introduction of anti-social behaviour orders is a good idea, we should make such orders available. I think it is a good idea, for the reasons outlined by Deputy Jim O'Keeffe. The orders do not represent the answer to all our problems. I take the point made by Deputies Finian McGrath, Ó Snodaigh and Jim O'Keeffe that pre-emptive community policing is far more valuable than remedies after things have gone off the rails. We have to develop community policing of a satisfactory standard. As Deputy Finian McGrath stated, where good community policing is in operation, people are diverted into good behaviour and matters are dealt with simply by infusing common sense and decency into situations which, if neglected, will get out of control. I accept those points.
I am not championing ASBOs as the answer to everything. From our constituency work, however, we are all aware that they will prove to be an advantage for some people. Vandalism, minor assaults, etc., are crimes and ASBOs will not really apply in respect of them. ASBOs relate to behaviour that is destructive of other people's sense of well-being and psychological integrity. Such behaviour is difficult to label as criminal and there must be some type of remedy available in respect of it. If they were the subject of harassment from their neighbours and so on, some people might have the wherewithal to employ a solicitor to obtain an injunction to put a stop to behaviour of that kind. However, most people cannot afford to bring injunctive proceedings against their neighbours.
The concept of ASBOs is not entirely new because the right to bind people over to keep the peace and be of good behaviour, in order to sustain and underpin the public peace, was always vested in magistrates under the common law system. That dates back into the mists of common law and was referred to as "the King's peace", under which the Judiciary had a right to bring people before the courts to warn them that they were obliged to behave appropriately towards their neighbours and not act in a manner destructive of their happiness.
I agree with much of what Deputy Costello said in respect of balancing the Bill with other legislation. However, I remind the committee that when I came into office I received the report submitted by the committee chaired by the late Mr. Eamon Leahy, SC. Mr. Leahy proposed that in addition to the preservation of crime scenes, that there should be a 48-hour period in respect of all crimes carrying over ten years imprisonment. To put it in context, this would involve every mugging, serious robbery, murder or crime involving manslaughter and almost every sexual offence one can imagine. In other words, the 48-hour period was to apply in respect of a large variety of offences.
I reflected on Mr. Leahy's argument and could see the force behind it. He was saying that under the Offences Against the State Act, many offences were, at that stage, the subject of 48-hour detention periods. He was asking how it was that a murder involving a firearm was dealt with in one way, while one involving a sledgehammer was treated in a totally different manner. We balanced matters out and put in place a 24-hour period, with the rest periods in addition to that, instead of the 12-hour period, plus rest periods, as provided for under the 1984 Act. In other words, a balance already exists and it is not as if I have gone to the extreme ends of the proposals available to me at the time. Having reflected on the position, however, we did what we thought fit to do.
I wish to make some comments on the recording of statements. Some 96% of statements are recorded. I am informed by the Commissioner that the remainder have been accounted for by occasions on which the recording equipment malfunctioned or, alternatively, where the detained person decided that he or she did not want the statement recorded. Some people, for good reason, do not want to make a statement on record of that type because they might be pressurised afterwards by people in their community to obtain a copy of what they said. A catch exists whereby if everything is recorded and made available as of right to people, this can subject some individuals to pressure to produce such material. Such people may, in turn, come under massive pressure to either retract a statement or disown it in some way.
Of course, there is the danger that a garda who is going to misbehave would say that the accused requested not to have the recording machine on. How one would deal with that exact issue is not that simple. I do not offer a clear way forward on that to the committee but I would say to Deputy Costello that there are some recent judicial diktats saying, effectively, that there would need to be a very good reason why audio-visual recording is not available for statements. It is now standard practice in almost every case.
The Commissioner has requested my Department to spend considerably more money on providing backup equipment in other rooms, even in stations where there is audio-visual equipment because sometimes the fact that one has to queue up to use a machine in a particular room in a station means that carrying out parallel inquiries is all the more difficult. In that context, as the committee is aware, we are going towards the point of making some statements provable, even though they may later be withdrawn or resiled from in court.
This may be a reason for providing extra recording facilities because it may be that witness statements will have to be recorded formally to avail of that right and to put them in a proper form where a jury would be content to say that it was an account on which they could rely even if it was later disowned. I hope that will be a tiny minority of cases.
Reference was made to the Children Act. The Minister of State, Deputy Brian Lenihan, will deal with these issues. On a broad brush basis, his appointment is as Minister of State in three Departments with overall responsibility for children. The integration of a single juvenile justice function located in the Department of Justice, Equality and Law Reform is part of a Government plan to make the treatment of young people who are at risk much more coherent. I believe the Minister of State is right to pursue the policies he is pursuing.
On the question of the age of responsibility, there is not a proposal to water down the age of criminal responsibility to ten. The age of criminal responsibility will remain at 12, but an exception will be made for rape-type cases, manslaughter and murder, on the basis that it simply is not acceptable for an 11-year old to commit one of those offences and, as I said at this committee last September, to be back at school the following Monday with everyone wondering what will happen in that case. There has to be some consequence for very serious offences. What the Minister of State, Deputy Brian Lenihan, is trying to do — I have to confess that my first attempts when I outlined the proposals to the committee were a bit crude — is to bring real reform in a way which would not end up in chaos at a later stage.
Children are maturing much earlier. I was at an under-12s rugby match the other day and it was noted that some of the children participating were much bigger than the referee, which was the cause of disquiet on one side. One team was a bit surprised by the size of the children on the other team.
No more than playing a minor or under-18 hurling match. In one case, a member on the other side had to wear a beret because he was going bald. I do not think premature baldness was the problem, I think there was some doubt about the birth certificate.
All I will say is that children are maturing earlier and we have to be realistic about what we do.
I am enthusiastic to proceed with amending this Bill and dealing with the issues involved. I am not proposing any amendment I do not think necessary. The select committee may find this hard to believe but many other suggestions were made to me which I decided to exclude. A criminal justice (miscellaneous provisions) Bill will be published to accommodate them.
We should be grateful for small mercies.
The Minister is getting soft in his old age.
This is already a miscellaneous Bill because it covers so many bits and pieces. By the time of Report Stage the Minister will have more to add to it.
No, I will not.
The Minister denies he will bring forward any further amendments.
I am rethinking that statement.
I will not go into the generalities of the Bill but the scrutiny of amendments involving, as Deputy Jim O'Keeffe highlighted, various disparate elements, is difficult. As we go into greater detail we will have to jump back and forth from Acts, Bills, amendments and amendments to amendments.
I refer to amendment No. 2, designed to give effect to my amendment No. 5 which, as I said, proposes delaying the implementation of the measure relating to ASBOs, particularly for children, on the basis that the Children Act 2001 has not been fully implemented. If it had been implemented and a subsequent review found there remained major problems which neither the criminal justice system nor the various sanctions contained in the Children Act had resolved, then I would be in favour of reconsidering how to more effectively deal with the issue.
The Minister proposes a period of ten years. If he were to accept five years then I would consider agreeing to it but it has already been five years since the passing of the Children Act 2001 and the community-related and parental sanctions for which it provided have not been put in place. If those provisions had been properly resourced it might have delivered a successful outcome on some of the problems.
The Minister is correct that much of what is covered by ASBOs is criminal behaviour, which raises the question of why the Garda does not deal with it as such. Much of the other activity covered by this measure is more in the nature of nuisance that would be regarded in other areas as the normal activity of children at play. One example concerns a child who stares at people but what if that child has a disability? That was highlighted in a case in Britain where an ASBO was issued to stop a child staring at a neighbour. I am not sure exactly what affliction causes a child to continuously stare blankly at another person but the child in this case had a disability which caused the behaviour. According to the provisions of the Bill such behaviour would be regarded as harassment and, as a result, a child might be criminalised. ASBOs would be popular with the public, which believes them to be a solution to gangs of thugs throwing bangers, burning out cars, joy-riding, assaulting people, bullying or robbing children, and destroying property, all of which is criminal behaviour. This is not the solution, which we would already have if we had properly resourced community policing and crime prevention and dealt with criminals through the justice system when an offence was committed.
Parts of my constituency suffer very high levels of anti-social behaviour, while in others what is considered anti-social behaviour, such as a gang hanging around a car and playing loud music late at night, would not be a major issue. A community garda could ask such a group to move on, and I saw community gardaí on the street when I was a child. If a gang were causing a nuisance, they would ask to move on, since that is part of their duty. If a gang is drinking on a street corner, there are powers for a garda to confiscate the drink and disperse the group. We need not rely on new laws, since there are existing ones, which must be used to their fullest extent.
We will probably return to the ASBOs themselves. There is an assumption in the Bill before us that gardaí are infallible. The written record of behaviour does not require that it be specified. I will return to that when we reach the relevant section of the Bill. While there is provision for a superintendent to convene a meeting between the child, its parents and others where satisfied that the child has behaved anti-socially, there is no provision for a behaviour order issued by the Garda Síochána to be revoked where he is satisfied that the child did not do so. There is no revocation.
There is no——
If the Garda Síochána decides that a child behaviour warrant should be issued orally and later in writing, there is no procedure for its revocation, even if a garda is found to have been picking on a child or mistaken. Gardaí are not infallible, as we know from events in Donegal and elsewhere. There has been abuse of power, and warnings might be issued on false grounds, something that we must bear in mind.
Despite the provision having been in gestation for some time, it has not been subject to the proper scrutiny or concentration necessary to deliver safeguards, and that is also a problem with the Bill as a whole. There are several Bills in one, and they should have been parcelled out and addressed individually. Parts with which we will deal later are quite welcome, since they have been needed for years. If they had been dealt with separately, we might have got through them much more quickly. I mentioned some of the organisations involved and there was an interesting exchange when ASBOs were first mooted. To be fair to the Minister, there has been a rowing back on the initial suggestion. However, we are still going too far and should revisit the Children Act to examine why it has not been implemented. As Deputy Costello mentioned, a change to the age of criminal responsibility was legislated for in the last Dáil but it has not yet come into effect. In this case we are legislating for something which also might not come into effect. Is there any point in passing some of these measures if they are like those in the Children Act? Preference should be given to implementation of the Children Act first.
We have spent a lot of time talking about anti-social behaviour and ASBOs when the amendments before us relate to commencement orders. We have strayed into substantive issues. I want to discuss in detail how we deal with anti-social behaviour and what we should do about ASBOs for both adults and children and will do so when we come to those sections in the Bill and the relevant amendments. I want to see a much tougher approach to anti-social behaviour, including greater parental responsibility. I want to see prevention measures similar to those I included in the 30 point programme on anti-social behaviour I issued on behalf of Fine Gael.
Although I want to see a tough approach on anti-social behaviour, I do not want a confined approach where I am considered to be to the right of Genghis Khan, or even Michael McDowell, on this issue. There must be a comprehensive approach to anti-social behaviour, with a different approach to policing. I agree with the point made by Deputy Costello on community policing and support its development. I am also in favour of changes to rostering in policing in order that policing takes place in the right place and at the right time. There is not enough emphasis on this. I talk a great deal about the lack of numbers but the management of those numbers is also very important.
Part of the problem is that there has been too much emphasis on anti-social behaviour orders and the role of the Minister for Justice, Equality and Law Reform when dealing with anti-social behaviour. It will not be tackled unless there is a much broader approach which involves the prevention measures we have discussed. I was glad to see the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, talking about hang out spots because I pushed them in the document I promoted last year. Moving beyond the justice area, education and the environment are also involved, with a need for proper design and planning to ensure there are no dark alleys or open spaces that are not overlooked, places that attract groups which then engage in anti-social behaviour. I will return to these issues when we deal with the substantive provisions in the Bill.
In our opening remarks on the Bill we have roved over a number of topics. That is understandable.
I want the Bill to be dealt with constructively, effectively and expeditiously and I want it to achieve the objectives that are shared by all members. How can we achieve that? I am concerned about a couple of matters. I read the proposal of the Clerk of the Dáil on changing the system for amendments. Included in the proposals is a reference by the CPP to the fact that under current Standing Orders, amendments may be submitted up to 11 a.m. on the day before a Bill is considered. We are now considering this Bill. I submitted a number of amendments to it, some of which are technical in nature and others which are substantive or reasonably so. However, I have not had the time to study the Bill in detail. I focused on the first few sections only. I have many other ideas to bring forward and I have even tabled amendments that are not included on the green list. As we work our way through the Bill, there may be difficulties in tabling amendments in respect of sections that we have already considered. However, we should be open to considering further amendments as we progress. The Bill will be the better for that. A week to debate a colossal Bill of this nature is not sufficient for the Opposition to do its job properly.
We may find that we are in conflict with the rule that issues must be raised on Committee Stage in order to allow amendments to be tabled on Report Stage. We should introduce, as a general principle, the idea that issues may emerge during the course of a debate on particular sections that may subsequently give rise to new amendments on Report Stage. The Chairman is furrowing his brow.
I do not know if Standing Orders allow for that.
We are in an unusual situation. The Bill is outweighed by amendments by a factor of ten to one. We will explore these amendments constructively. However, following the completion of sections, issues may arise which will suggest the retrospective tabling of further amendments. The only way to do that will be to table them on Report Stage. This may conflict with Standing Orders as amendments must be put down on Committee Stage before they are tabled on Report Stage.
The Minister would accept Report Stage amendments relevant to certain sections so long as they are mentioned at some point on Committee Stage.
I will be obliged to give a notice on every single section. I genuinely want to see a decent Bill result from all of this. I will table amendments on every Stage to ensure that the final product is the best in the circumstances. I agree with Deputy Ó Snodaigh on one issue. It would have been much better parliamentary procedure if we were dealing with separate Bills in respect of some of these sections. If we were dealing with a separate firearms Bill, then we could deal with all aspects relating to firearms. If we were dealing with an explosives Bill, we could update the Explosives Act 1875. We are not doing so and I accept that we have embarked on that course. We will try to end up with the best possible product.
There will be no delaying tactics of any kind on my part. However, this Bill should not be guillotined at any stage. Once we get stuck into it, we will make much progress. There should, however, be no question of a guillotine on Committee Stage or Report Stage. The only way to ensure, in partnership, that we will produce the best possible result is to reject the imposition of a guillotine.
I echo the remarks of Deputies Ó Snodaigh and Jim O'Keeffe in respect of the Bill. While there are a fair number of miscellaneous matters at issue, the approach we are taking is failing to permit us to address the Bill in sections as would be the case if the legislation were coherent. The amendments are coming from all directions. Our approach may well mean that on Report Stage outstanding issues will fall to be addressed which will require the recommital of the Bill. I am sure that can be managed, if necessary.
What is the Minister's thinking as regards section 1? Since I have been in attendance, the Minister has failed to set out the reasons that prompted him to table amendments Nos. 1 and 3.
We have not yet reached amendment No. 3. We are dealing with amendments Nos. 1 and 2.
They appear to be related, with one following on the other. The Bill, as drafted, provides that "the Act shall come into operation on such day as the Minister may appoint" and the amendments seek to except Parts 11 and 13, on which the Minister intends to consult the Garda Commissioner. Does the Minister need to consult the Garda Síochána to ensure that a superintendent and officers will be in place to deal with those parts of ASBOs with which they will be obliged to deal?
We should not simply link the Minister and the Garda Commissioner because the matter involves more than policing. Under the Minister of State, Deputy Brian Lenihan, a youth services body will be established which will combine the roles of the Departments of Education and Science, Justice, Equality and Law Reform and Health and Children and which will address juvenile justice. A third body should be consulted on the operation of the various sections of ASBOs. Part of the function of the proposed body will be to ensure that the various steps in an anti-social behaviour order are supported by the resources required to operate them. Anti-social behaviour orders here will be quite complex by comparison with those that operate in England.
If the Deputy is suggesting that I should consult the Minister of State, Deputy Brian Lenihan, to ensure that he is ready for the trigger mechanism, he should note that the Minister of State and I are regarded in law as single, indivisible and indistinguishable. We are seamlessly joined together.
They are Siamese Ministers.
If I was obliged to consult another Minister in Government, it would be appropriate to include a provision in the Bill. However, the Minister of State will hold the function and he and I are supposed to be in complete mental communion.
My point relates to the Minister's responsibility and that of the Garda Commissioner, the only other person to whom the Minister referred. The Commissioner is responsible for the deployment of Garda resources. If anti-social behaviour orders are to work, they must be taken step by step, which will require a great deal of involvement from parents, the courts and the probation and welfare service as well as require conferences and diversionary programmes.
The only reason for co-ordinating the provisions on the day they would come into operation would be if all of the services were available. I do not want to see a situation where we criminalise young people, unless we are certain we have taken every opportunity to ensure they are treated properly and have what we say will be provided in backup, mentoring, diversionary and conferencing services before we move to impose sanctions. That is why I want the Minister to look again at this section to see if there is something else that can be provided, not just in terms of consulting the enforcement agency of the Garda Síochána but of a wider consultation process for those delivering the services. The Minister might provide a wording which would reflect this that would satisfy us.
One of my major concerns is that the Government has been sitting on the Children Act 2001 for five years. Effectively, nothing has happened on the issue of juvenile justice. If the Government had implemented the Act, I am satisfied we would not be talking about anti-social behaviour orders. We have never brought parents and the community, in terms of the courts, into the equation. There are diversionary schemes in place which are extraordinarily effective and successful. One could almost say the only effective and valuable parts of the criminal justice system that produce good results are the diversionary programmes which keep out of trouble 87% of the youngsters who come in contact with them. They are not as widely available and resourced as they should be. The probation and welfare service is still the Cinderalla of the criminal justice system.
There is the Children Court, as well as detention centres. What is happening to the latter? The Minister is designating Mountjoy Prison as a custodial centre for those aged between 16 and 17 years, pending the provision of proper detention care facilities for persons of that age. What are we doing here? Are we putting on the long finger the good aspects and putting in place the negative ones? Anti-social behaviour orders will be put in place and result in young people being criminalised without any opportunity to expunge the criminal offence. We are providing for the sending of young people to detention centres, to which they cannot be sent as it is forbidden by law because it is regarded as a prison. The age of criminal responsibility should be raised rather than reduced on the basis that in the future serious crimes, including rape, will be committed by youngsters.
If we are to determine the implementation date of sections of this legislation, let us do so on the basis that we will put an effective structure in place. As we are dealing with children, let us ensure we will not be found wanting. It is, after all, the 90th anniversary of the 1916 Rising. Reference is made in the proclamation to "cherishing all of the children of the nation equally". Let us not provide for a situation, as happened in 2001, where nothing will be done. Will the Minister revisit the section, in the context of Parts 2 and 3, in order that it will come into operation on such day as he appoints, after consulting the Commissioner of the Garda Síochána and backup service providers? I would be much happier dealing with the legislation if the Minister could do that.
The community policing issue has been mentioned by everybody. When the ASBO mechanism kicks in and street warnings are issued, this should be done in the context of having a community policing service in place and community police being responsible for an area. In this way there would be proper accountability rather than numerous different people dealing with the matter and it would not become a haphazard affair. That would be a major preventative measure because one hopes that most of the youngsters would be diverted out of harm's way before the orders would have to be used. The only way to do that is to provide the resources and personnel.
Amendment No. 3 addresses that issue.
Amendment No. 1 is relevant in this regard.
Amendments Nos. 3 and 5 and the amendment to amendment No. 3 are related and all will be discussed together.
I move amendment No. 3:
In page 5, between lines 37 and 38, to insert the following subsections:
"(3) Parts 11 and 13 come into operation on such day or days as the Minister may, after consulting with the Commissioner of the Garda Síochána, appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
(4) The Firearms Acts 1925 to 2000, Part 5 and Schedule 1 may be cited together as the Firearms Acts 1925 to 2006 and shall be construed together as one.
(5) The Explosives Act 1875, Part 6 and Schedule 2 may be cited together as the Explosives Acts 1875 and 2006 and shall be construed together as one.”.
The purpose of the amendment is to provide a new section 1(3) such that Parts 11 and 13 for civil mechanisms which include anti-social behaviour orders to deal with anti-social behaviour by adults and children, respectively, can only be commenced by the Minister after he has consulted the Garda Commissioner. The purpose of this is to ensure the provisions will only be commenced after the Commissioner has had the opportunity to make the necessary internal arrangements to make sure members of the force are familiar with the new procedures and know what is entailed. We want proper training, instruction and circulars to issue so that these orders are not used in an unexpected and erratic way in different places. Subsections (4) and (5) are standard citation provisions to reflect my later amendments dealing with firearms and explosives.
Amendment No. 3 refers to an issue raised during the debate on the Garda Síochána Act, which I examined at the time. It has been long established practice going back to the Police Force Amalgamation Act 1925 to refer to the force as the Garda Síochána. Deputy Ó Snodaigh discussed this at considerable length during the debate on the Act and Deputy O'Keeffe may have forgotten that, when I pointed out that in 1925 it was referred to as the Garda Síochána, he replied "If it was good enough for Kevin O'Higgins, it is good enough for me". However, he has moved to Deputy Ó Snodaigh's position, whom I fully expect to say, "If it was good enough for Kevin O'Higgins, it is good enough for me".
I doubt it very much.
As Brian Lenihan used to say, that is the "tyranny of inconsistency".
If this change is made, therefore, it would have to be applied to the entire corpus of Garda enactments and I am not prepared to do that. I consulted the Parliamentary Counsel on the matter and I am satisfied, like Kevin O'Higgins and Deputy Jim O'Keeffe, that it does not make much difference and it is a matter of usage one way or the other.
I do not propose to accept amendment No. 5. Part 13 will provide for ASBOs in the case of children. The amendment seeks to delay their commencement until a motion has been passed by both Houses following the review of the Children Act 2001. I dealt with this issue. The amendment is at variance with my amendment and I do not propose to accept it. It seeks to provide that the two sections dealing with anti-social behaviour orders would commence once I was satisfied the Garda Síochána was in a position to implement them. That is what would be required in any case.
The Minister of State, Deputy Brian Lenihan, shares ministerial responsibility for children with me. I will not make this order until he is ready with his panoply, including case conferences, provisions on street warnings and mechanisms for meetings with parents. There is no need to provide in law for consultation with the Minister of State because we share one ministerial competence in that regard.
Many of the arguments on these amendments have been discussed. I ask members to be brief if they must refer to what they have stated previously.
I move amendment No. 1 to amendment No. 3:
1. In subsection (3), to delete "the Garda Síochána" and substitute "an Garda Síochána".
While I appreciate the approach of Kevin O'Higgins, we now have a new approach to the Irish language which we must examine afresh. The amendments demonstrate we are not prisoners of history. The annual Garda report which I have examined is entitled, The report of An Garda Síochána. The website refers to "Ireland's national police force, An Garda Síochána". I have also examined the mission statement which refers to achieving "the highest attainable level of personal protection, community commitment and State security" and to "An Garda Síochána". This matter is worth examining in the context of the new approach to the Irish language, as well as our approach to our police force. While I will not press the amendment, the matter is worth examining in the context of popular usage and other bodies with Irish names such as Bord Bia. It is understandable the term "The Garda Síochána" was used at the time of the foundation of the State. I would appreciate it if those with well developed views on how we deal with the Irish language contributed to the debate. The leader of the Fine Gael Party, Deputy Kenny, expresses a sensible view on how we should deal with it in the future. We should be open to examining such matters.
To some degree amendment No. 4 in my name is related to the Minister's amendment No. 3. Accepting that the Minister must have the ultimate power regarding the commencement date even if it is after consultation with the Garda Commissioner, I want to highlight the problems that can arise if the Minister is given untrammelled power. I wanted to put some smacht on the Minister from the point of view of ensuring he would not sit on that power forever. To those of us interested in the area, that is what seems to have happened regarding many provisions of the Children Act. The Minister has the power to introduce commencement orders which he chose not to exercise resulting in many provisions of the Act not having been brought into effect. In many ways following what occurred with the Children Act, I felt it appropriate, at least for the sake of discussion, to table amendment No. 4.
The Minister's amendment refers to construing the Firearms Acts as one and the same as applies to the Explosives Act 1875 with Part 6 and Schedule 2 to the Bill. We would be far better off having one firearms Act and one explosives Act.
Regarding amendment No. 5, it would be utterly unacceptable to delay the implementation of any legislation to address anti-social behaviour until ten years after all sections of the Children Act became fully operational. That would mean a minimum of ten years from now and perhaps considerably longer.
Before the other Deputies speak, I suggest we include amendment No. 4 in our discussion now. We are discussing amendments Nos. 3 to 5, inclusive, and amendment No. 1 to amendment No. 3.
Regarding amendment No. 3, I shall return to the issue relating to Parts 11 and 13. What the Minister proposes regarding the Firearms Acts and the Explosives Act makes the case I was making earlier that we are dealing with several Bills in one and they should have been separated. At the least, the Bill before us should have been withdrawn and redrafted and resubmitted in a form that would allow for debate in individual parcels rather than dealing with a Bill in amendment form. I will not labour the point I made on Second Stage and during the motion on instruction to the committee when I stated that I believed this was the wrong approach. Nevertheless here we are.
Regarding amendment No. 1 to amendment No. 3, the Minister is correct that I made a similar point during discussion of the Garda Síochána Bill. Just because we can all appreciate what Kevin O'Higgins might have been doing, it does not mean we agree with what he was doing. We can take our own reading from history. If we are to be grammatically and textually correct, amendment No. 3 should read "An Garda Síochána", rather than "the Garda Síochána". We can all drift into the use of "the Garda Síochána" or "Garda Síochána", but the correct title of the organisation is "An Garda Síochána". I will not labour the point as I have made it clearly during discussions on other legislation. If the title of an organisation is in Irish, we should use the correct version of the title. I will not say any more about that amendment.
I have outlined the reasoning behind amendment No. 5 in my name. I do not want to get into the detail of it again, other than to say the Children Act 2001 which has not yet taken full effect is a good one. We await its full implementation. Although the Minister knew he intended to produce this Bill, he did not accelerate implementation of the outstanding parts of the 2001 Act. Members of the committee need to be given some hope that those parts of the 2001 Act will take effect in proper time. As all of its provisions have not yet taken effect, we do not know whether the Act is working or can work properly and can deliver what it was intended to achieve.
I have proposed a ten-year timeframe in amendment No. 5 in order that the 2001 Act can be fully implemented, resourced and brought into operation before we consider whether we continue to have a problem and need to take further steps. As I said, I could be persuaded that there is a need to reduce that timeframe to five years, if the Minister wishes. Before we proceed in the manner suggested in the Bill, we need to ensure the necessary legislation has been enacted and the necessary resources to tackle issues of juvenile justice have been provided. We may wish to delay implementation of the Bill while diversionary programmes are being put in place to prevent juvenile crime, for example. If the Minister wishes to implement this legislation after the relevant period of time has elapsed, he will be able to do so and society will live with the consequences.
I will not labour the point further as I have said what I wanted to say about the possibility of delaying the introduction of anti-social behaviour orders to which I am opposed in general. While there are flaws in the criminal justice system, we should continue to use it to deal with issues of criminal behaviour. Most of the behaviour that will be subject to anti-social behaviour orders is criminal. Rather than using the criminal code to address anti-social behaviour that is criminal, I predict that gardaí will use anti-social behaviour orders which will become "get out quick" clauses for them. By using such orders, they will not have to do the work they are supposed to do when presenting cases such as gathering evidence and ensuring beyond reasonable doubt that somebody is guilty of an offence. The experience in this country will be like that in Liverpool and other parts of Britain where anti-social behaviour orders are popular, even though they have not dealt with anti-social behaviour or had the effects they were supposed to have. Their introduction was welcomed by communities in Britain as the great white hope, but they have not addressed the problems they were meant to address. They have been abused by police forces which are using them to deal with nuisance problems rather than anti-social behaviour.
Deputy Ó Snodaigh argued that the Bill should refer to "An Garda Síochána", rather than "the Garda Síochána". I am not sure there is any value in that argument because we use the two terms interchangeably. Grammatically, "An Garda Síochána" is the more correct version. However, "the Garda Síochána" and "An Garda Síochána" are interchangeable. I am satisfied with either.
With regard to amendment No. 3 in the name of the Minister, the purpose of the phrase "come into operation on such day or days as the Minister may, after consulting with the Commissioner of the Garda Síochána, appoint" is to ensure gardaí are familiar with the procedures involved. If that is all that is intended, it may not be enough. What does it mean for gardaí to be familiar with the procedures involved? Will there be a training period and will gardaí undertake refresher courses in regard to the Bill? Will they return to Templemore to learn, in particular, the intricacies of how to implement anti-social behaviour orders and the steps towards implementation?
No reference is made to numbers. One cannot introduce new provisions of this nature without having more gardaí to deal with them or it will be necessary to cut corners. Is the aim simply to ensure familiarisation with procedures? It is a little like the introduction of the 31 new penalty point offences in that, whether there was a familiarisation process, the offences could not be introduced until the personnel were in place to deal with them. The worst circumstance is the introduction of legislation which is left dormant and inactive on the Statute Book.
The Minister offered some comfort that he will not activate sections of the Bill until such time as he has consulted the Minister of State, Deputy Brian Lenihan, as if he and Deputy Lenihan were one and the same. We are told the Minister of State has everything in order. This cannot be the case because it does not fall to the Minister of State to make provision for all of the personnel, resources and recruitment that will be necessary to provide for activating, say, the Children Act 2001. How will he achieve such provision without the agreement and support of the Minister for Finance or the Minister for Education and Science? Are talks ongoing in this regard?
Can the Minister give a guarantee that we will have the necessary resources, backing and personnel to implement the legislation in the way designed and that we will not fall back on the old system, whereby legislation is included in the Statute Book and, due to a shortage of resources, there is only cherry-picking in terms of what is implemented? The one positive result to be hoped for from these proposals is for the Children Act 2001 to be sufficiently resourced to allow it to be implemented in the way envisaged.
With regard to amendments Nos. 3 and 5, "An Garda Síochána" is the correct title and the one we should use. However, I admit I do not have many sleepless nights in regard to the distinction between "An Garda Síochána" and "the Garda Síochána", unlike the Minister and Deputy Bruton on a recent occasion. All of us, including the Garda, should revisit the ethos and philosophy underpinning the title "Garda Síochána", which means guardians of the peace, and implement them. What it basically boils down to in modern society is quality, professional policing, preventing crime and protecting our citizens.
In regard to amendment No. 5, I emphasise the importance of the Children Act 2001. To facilitate the debate, I will not go into the details of the legislation but will merely highlight the need to act on it.
Does the Minister intend to bring representatives of the GRA or the AGSI on a trip to some European countries to study the reserve policing forces that operate therein?
On the Deputy's final point, the GRA president was invited by Chief Constable Peter Fahey to observe his arrangements. I heard that offer being made on "Today with Pat Kenny". I indicated on a number of occasions to the representative associations that they should go and consider the experience of other similar forces rather than simply talk in a vacuum about what they fear might happen here.
I attended a conference in Chester with the Commissioner of the Garda Síochána and it was one of those few occasions when one goes to a conference and is genuinely uplifted. There were approximately 300 or 400 people in the room and they were there to deal with volunteer policing on the island of Britain. They were really committed people. Their debate was of an astonishingly high quality. They were collectively studying ways to ensure that their value to the community improved. The solidarity of regular police officers with them was astonishing. When one sees that happening at first hand, it is as if, to quote a phrase that was used by a member of my delegation, "we have seen the future and it works".
It is truly remarkable to talk to special constables, as some members of the committee did, and hear that these people have day jobs. I refer, for example, to the woman who works as an intensive care nurse and who feels that, at the end of a long day during which her full attention is required in terms of dealing with sick children to whom tubes are connected, she wants to have a different dimension to her life and work as special constable in Britain. When one talks to such people and hears what motivates them, one realises that they are not little Hitlers and do not pose a threat to anyone. Their colleagues in the regular police force honour and regard them as good people and do not feel threatened in the slightest by them.
There is a gulf of understanding on this matter. It is a pity the GRA in particular did not get its act together and take up Chief Constable Fahey's invitation at an earlier stage but it left it until it was too late.
It was an informal invitation.
The GRA left it until it was too late.
Not everybody listens to "Today with Pat Kenny".
Representatives of the GRA participated in the programme. It is a pity they did not act a little quicker in respect of the offer. That said, my door remains open. When one sees something that works and hears arguments against it that fall by the wayside when one observes the system in operation, it is perplexing to understand the reason we are in the position in which we find ourselves, with people making statements that bear no relation to reality or to what most people in Ireland think. I do not want to get into propaganda mode because that is not the purpose of this committee. However, since Deputy Finian McGrath raised this matter, I do not want to walk away from discussing it.
The Deputy is probably sorry he raised it now.
I love asking the Minister questions — he always gives me great answers.
As to the direction in which I see this matter going, I am an optimist and I believe people will inquire into this matter, learn about such forces as they operate elsewhere and realise that a mistake has been made. If I was to take a pessimistic view, I could only see massive damage done to the reputation of the Garda Síochána at the hands of those discussing its professionalism. If the public were to see people volunteering and being rejected, it would take a long hard look at those doing the rejecting. It would not be charitable and it would do the interests of the Garda immense and, probably, irreparable damage.
I do not want to go down the road of causing damage to anybody. I ask everybody to sit down, take a few breaths and return to discussion. That is the position taken by the Commissioner also.
On that issue, the committee has indicated to the GRA and the AGSI that it would like to engage in dialogue with them after Easter, on a date to be agreed with members. The groups have requested such dialogue.
I hope to put regulations which are at an advanced stage of drafting before the committee in order that it can discuss what is proposed rather than theories.
That would be helpful.
From the point of view of planning, I am amazed the GRA has not done this already. We went to England and saw a reserve force in operation first hand. I had the experience described by the Minister.
The Deputy started and finished.
I have been disorderly.
Amendment No. 4 is unusual, but I know what Deputy O'Keeffe is driving at. He is asking if these provisions will be left on the shelf. I hope not, although there may be exceptions. For example, the provision dealing with electronic tagging should not be commenced until the machines have been bought.
Not like electronic voting machines.
In general, powers of search, to ensure preservation of the scene, the arrest and detention of persons, as well as firearm provisions, must be acted on now. I do not see any Minister being in a position where he or she cannot commence them. I had a warm feeling when I saw Deputy O'Keeffe's amendment as he has often said he intends to be where I am sitting very soon. I was wondering why he was tabling the amendment on a pessimistic assumption that he would not be in a position to do all of this himself.
There is no point putting pressure on oneself for the future.
Is the Deputy pressing the amendment to the amendment?
I will withdraw it as I put it forward to show I was open to and sometimes even listened to comments from unusual sources.
As the Minister accepted some amendments of mine recently, I am having a good month.
There is joined-up thinking between Sinn Féin and Fine Gael.
A new coalition agreement.
Not so much a U-turn but an S-bend.
Before we proceed to section 2, I have raised a number of general issues about how the Bill is handled and how we might deal with it.
The select committee went into private session at 4.15 p.m. and resumed in public session at 4.20 p.m.
Amendments Nos. 6 and 7 are related and may be discussed together.
I move amendment No. 6:
In page 5, subsection (1), line 38, after "Act" to insert ", unless the context otherwise requires".
Amendment No. 7 in the name of Deputy O'Keeffe seeks to specify the Act of 1939 and include a definition. I am advised that there is only one reference to the Offences Against the State Act 1939 in the text and that it is not usual to include a definition section in such circumstances.
Where is it included?
I will find it for the Deputy.
Let me explain.
It is included in section 33.
It would be an opportunity to deal with an issue that arose recently in the High Court owing to the freeing of a person being investigated in connection with the murder of Donna Cleary.
That issue arose in the Seanad recently in the form of a Private Members' Bill. At the time I told Senator O'Toole that I would entertain it in the context of this legislation. However, I now feel I should not keep adding trains to the carriage. Perhaps the Deputy might table an amendment.
I intend to do so.
I would appreciate his showing me a draft. I would like to accept an amendment along those lines.
I had reached the stage of deciding that I needed to refer to the Act in section 2, but I had not finalised the appropriate amendment. The context is that, where an application to a District Court judge has been made within the relevant time period, it should not be deemed out of order because it has not been completed.
I agree with the Deputy; it would be a desirable amendment to the law. There are instances under drug trafficking legislation and one or two other Acts where the same point should be made 100% clear. If a judge is considering an application, the clock should stop. In rugby terms, it would provide time out for the other side on the issue.
Do we need to include in section 2 a reference to the Act of 1939 or any other Act?
If the Deputy assures me that he will tender such an amendment, I will accept it.
That is my intention.
Is the phrase ", unless the context otherwise requires" tautology?
No, it is to give a judge freedom to manoeuvre. If he or she sees a term used in an Act that is given an express meaning, he or she will have the freedom to say it would make a nonsense of that provision were he or she to interpret it strictly in accordance with the definition section. Perhaps that is the sort of matter that should be dealt with in an overall, global interpretation Bill. The phrase is to give judges a little leeway, not to give in to nonsense.
I do not understand. It states the "Act of 1967" means the Criminal Procedure Act 1967. It is mere interpretation.
It is the first Act. It is line 38, not line 39. It will provide that, unless the context otherwise requires, all of the definitions on that page and the next one have effect.
It refers to all of the definitions.
Yes. If Deputy O'Keeffe tables an amendment using the term "place" at some point——
Why is there a full stop after it?
It is outside the quotation marks.
I move amendment No. 7:
In page 5, subsection (1), between lines 38 and 39, to insert the following:
""Act of 1939" means the Offences Against the State Act 1939;".
I move amendment No. 8:
In page 6, subsection (1), to delete line 5 and substitute the following:
""place" means a physical location and includes—
(a) a dwelling, residence, building or abode,
(b) a vehicle, whether mechanically propelled or not,
(c) a vessel, whether sea-going or not,
(d) an aircraft, whether capable of operation or not,
(e) a hovercraft, or
(f) any other place whatsoever.”.
A criminal lawyer drew this matter to my attention. Is the definition of "place" too vague? The Bill might be more watertight if it was more extensively defined. In the original Bill the interpretation of "place" states it includes a dwelling. The lawyer mentioned to me that it could be argued that other places might not be covered under the interpretation. I suggest "place" should mean a physical location that includes a range of things such as a dwelling, a residence, an abode, a vehicle, a vessel, an aircraft, a hovercraft or any other place. It is a drafting point to avoid a technical argument being made. The Minister might have a look at this overnight and if it would make the Bill more watertight, we could include it. If not, I will withdraw it.
It is almost 4.30 p.m. and I would like to look at this overnight. We have defined "place" in the definition section as including a dwelling and I want to preserve, among other things, a vehicle, mobile home, bus, ship and boat. Therefore, I will examine the amendment overnight to see if it has merit. Once we start to make lists, it is easy to go down the wrong path. I take the point that the present form looks geographical but it can be argued that if a place is declared to be the scene of a crime, nothing in that place can be moved. I will consider the amendment overnight.
We will adjourn and resume consideration of amendment No. 8 tomorrow.