Select Committee on Legislation and Security debate -
Thursday, 22 Jul 1993

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. G. Mitchell

I oppose this because certain sections in the Bill do not go any way towards solving the problem of the community which is that it is being oppressed. In many cases sections of the Bill are weak, for instance the area of the Bill dealing with loitering with intent, loitering in parks and loitering near vehicles, needs to be strengthened, not weakened.

Some sections of the Bill give rise to concern and this is one of them. It deals simply with a person who is intoxicated or considered to be intoxicated to such an extent that he might be a danger to himself or any other person in his vicinity. Under this section I believe that if somebody is sensible enough to leave his car behind and appears to be intoxicated, the best thing a garda could do is to see him home. Since I raised this question the Irish Commission for Justice and Peace, appointed by the Bishops, has also raised concerns about this section. That had not been made public when I raised this on the last occasion.

This is not sensible. Section 4 (3) says: "Where a member of the Garda Síochána suspects, with reasonable cause, that an offence under this section is being committed, the member concerned may seize, obtain or remove, without warrant, any bottle or container, together with its contents.". I am introducing a new section to make that applicable in general. The provision in section 4 (3) only applies to section 4 itself. Who decides if somebody is intoxicated? Is somebody taking medication, for instance, considered to be intoxicated? Why should the Garda have the right to make such a judgment?

People who are intoxicated, arrested and taken to a Garda station are very often simply thrown in a cell and can end up, in some cases, doing damage to themselves. I am really concerned about the section. I do not know why it is included in the Criminal Justice Bill, if somebody is a danger to himself or traffic then surely such a provision should come under the whole area of jaywalking or road legislation. I do not understand why this section and others similar to it are needed to deal with public order and the serious problems people face. I will be referring to these other sections later. One of them, section 20 (b) deals with the meaning of "peace officer". I do not know why a criminal offence could result from contact with members of the public by a soldier or a member of the FCA in uniform on his way home. This is one of the sections which I feel is wrong. Has a garda to breathalyse somebody to decide if he or she is intoxicated? I am opposed to this section and I will be calling for a vote on it. I will not go over all the arguments I made the other day but the section is unnecessary.

Chairman

At the beginning Deputy Mitchell asked me to comment because he was opposing this section. We had a full discussion on this at the last meeting and we decided that we were disposing of it. At the beginning of the meeting this morning I indicated that we had had a full discussion on it and for procedural reasons we had to go to amendments Nos. 5 and 6. That was a decision of the committee on the last occasion. People are now indicating that they want to speak on the section and I suggest that we do not have a full debate on section 4 again. The committee agreed at the last meeting that we would not do so.

Mrs. Geoghegan-Quinn

The Chairman is correct. We had a very lengthy, full and comprehensive discussion on this section at the last meeting. In fact it frustrated many people because various amendments were left aside and the section was discussed instead. I made all the points at that stage. I will repeat only one of them.

In all the years we have had criminal law legislation giving various powers to the Garda Síochána and we depended on their common sense in implementing those policies. I gave a number of concrete examples of what could be done and Deputy Mitchell raised one of them here. Where somebody is found, for example, wandering across O'Connell Street in a drunken state, liable to cause not just harm to himself or herself but also perhaps to an innocent bystander or motorist travelling along the way, the Garda have a number of options available to them. They can take such people to the Garda station until they sober up or put them in the patrol car and take them home — which they often do. If a person has a car nearby perhaps members of the Garda could drive the car home or take the keys so that at least he or she would not drive. All these things have been working very effectively over the years.

If a situation arises where people feel that a member of the Garda Síochána is overstepping his or her powers then there is a facility whereby a complaint can be made to the Garda Complaints Board. I ask people to accept that gardaí around the country operate on the basis of common sense. Ultimately whatever decision they make in relation to this or any other criminal legislation is open for judgment before the courts, that is very important.

The Irish Commission for Justice and Peace asked for safeguards for people taken into custody under this Bill. They asked that the safeguards regarding health should be written into the Bill itself. As Members of this committee know, the custody regulations of 1984 already set out very clearly the requirements the Garda have to follow in relation to this. I have not heard people saying that these custody regulations are not being implemented in a proper and fair way. I know we are giving extra powers to the Garda but I very much support this section and want it in the Bill. From the discussions we had in the Dáil Chamber the other day it seems the majority of the committee Members also want this section in the Bill. To save time I think perhaps we should put the question.

Mr. G. Mitchell

Fine Gael is opposing this section for the reasons I have stated both today and the last day.

Question put.

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 attend.

As eight minutes have elapsed, the division will now proceed.

The Select Committee divided: Tá, 19; Níl 7.

Tá
Ahern, Dermot.	Harney, Mary.
Ahern, Noel.	Kemmy, Jim.
Broughan, Tommy.	Lalor, Liam.
Byrne, Hugh.	Lenihan, Brian.
Costello, Joe.	McDowell, Derek.
Fitzgerald, Liam.	Mulvihill, John.
Foley, Denis.	O'Donoghue, John.
Gilmore, Eamon.	O'Keeffe, Ned.
Geoghegan-Quinn, Máire.	Wallace, Dan.
	Walsh, Eamon.

Níl
Barrett, Seán.	Harte, Paddy.
Browne, John.	Mitchell, Gay.
[Carlow-Kilkenny]	Nealon, Ted.
Carey, Donal.	Timmins, Godfrey.

Question declared carried.

NEW SECTION.

Mr. G. Mitchell

I move amendment No. 6 (a):

In page 4, before section 5, to insert the following new section:

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

In the last section a similar type of consideration applies to an offence under that section only. I am introducing this general section because parts of the Bill go too far, the last section being one of them and other sections to which I will be alluding later. In addition parts of the Bill do not go far enough, especially the area of loitering which is not addressed to a sufficient extent.

Large groups gather in urban areas, mainly in Dublin, in any open space they can find, for example, the end of street corners, open spaces, parks and sometimes outside people's gates. These groups drink publicly until all hours of the night and intimidate other people. The are imprisoning old and feeble people who are afraid to come out to them. Sometimes they are afraid to leave their houses because often when these people are assembled they are drinking and watching people as the come and go from their houses so that they can burgle the house to obtain money to buy more drink. These groups of people, sometimes gather in large numbers of perhaps up to 40, and often as few as eight or nine, cause terrible problems for people by drinking publicly in parks, open spaces and outside homes. The are imprisoning the old and feeble, often children cannot run to the shops for a message for their parents or go out and play without running the gauntlet of the people who are gathered there and women are offended and intimidated.

This is a big problem in urban Dublin. It is not simply a question of drinking in public, it is often a question of people urinating in public and worse, and then throwing their bottles or cans into gardens. It creates a general atmosphere of lawlessness in areas. If one lives adjacent to an open space or in a flat complex in Dublin where there are many flat complexes, for example there are approximately 10,000 local authority flats within the canals, or if one lives adjacent to a public park or a green this problem is widespread and is causing great difficulties. There is reason to suspect that many of those involved in this activity steal to feed their habit of nightly intoxicating themselves and assembling in such a way as to cause a nuisance and to upset the peaceful enjoyment of the environment by other people.

My understanding of the law at present is that the gardaí have power to seize where somebody is under the age of 18 years. The gardaí say that they have difficulty in determining age. It is not possible to walk up to somebody and request their birth certificate. I believe, therefore, that there is a reasonable case for including a section which makes it an offence to consume drink publicly in such a way to cause a nuisance to another person. If a nuisance is not being caused to another person that is acceptable. However, if a garda believes one is causing a nuisance and if somebody complains of it, then the garda should have the power to seize the cider or wine or whatever the person is drinking.

The situation is causing terrible problems in parts of the city. It is not an occasional problem, it is a widespread problem, and I ask the Minister and the committee to accept this amendment which is reasonable in all the circumstances, especially in relation to a public order Bill.

Chairman

Before I call the next speaker I would like to remind Members that 6 (a) is a new section and has no relevance to section 5, therefore when Members are contributing they should not refer to section 5 as it is a completely new section.

Mr. Shatter

I support this amendment.

Mr. D. McDowell

I can see merits in the general thrust of this amendment, but I have difficulties with some of the wording. I urge the Minister to give some thought to something of this nature in so far as it identifies a problem of which we are very conscious, namely people drinking and causing a nuisance in public places. The amendment also prescribes the most obvious solution to that problem, namely to remove the drink and to give the gardaí the power to do so. I am nervous about other sections of the Bill which prescribe penalties such as fines and custodial sentences for various new offences. However, this amendment is aimed at the cause of the problem, which is drinking in public places. For that reason it is appropriate to suggest to the Minister that she might consider something of this nature.

Mr. Shatter

I understand that Dublin Deputies have experienced problems in their own constituencies of cider parties within residential housing estates, of young people drinking excessively and of the gardaí on occasions not being able to deal with it adequately. This type of amendment is welcome and I hope the Minister, if she does not accept it will give an undertaking to bring a similar amendment before the Dáil in the context of Report Stage of the Bill.

This is a widespread problem in parts of the city and county of Dublin, and Deputy Mitchell described the extent of the problem very well. Some people fear stepping outside the door of their own home late at night because of groups of intoxicated young people congregating outside and making a nuisance of themselves. Other provisions in the Bill including section 4, address some aspects of this. It is most important that the gardaí, where they believe that someone is consuming an intoxicating substance that is causing a nuisance can fully intervene. In that context this amendment is welcome.

Mr. Harte

The amendment is reasonable and wise. Deputies will probably be conveying the feelings of their constituents to try to make a case in support of this, and listening to Deputy Mitchell, Deputy Shatter and Deputy McDowell make a strong case for Dublin I will try to convey to the committee what happens in my constituency. The greatest offenders in my constituency in relation to this complaint are the itinerant classes. It would be wise for the Minister to accept this amendment because too often people have no ambition in life other than to buy drink, consume it publicly and make a nuisance of themselves. Often the gardaí cannot do anything except when there is a brawl. The amendment is reasonable and well worded. It gives the gardaí powers which they should have. Deputy Derek McDowell said he is not happy with the wording. I am not a draftsperson but people drinking in public must be causing a nuisance before the gardaí can seize the alcohol. That provision gives the garda discretion as to when they seize drink.

What will happen in Slane next year if a group of well intentioned young people express themselves in bad language or cause a nuisance? If many of them do, will the gardaí need a truck to carry away the alcohol? It is a thought for the committee to consider.

Mr. Kemmy

It is a sad feature of modern life that areas and facilities provided for the public are not being used as widely as they should. They have become no go areas because of the activities of a relatively small number of usually young people, who congregate in these areas, drink alcohol, sometimes take solvents, such as glue and engage in other anti-social activities.

It is not just part of Irish culture but of the culture of the world; in other countries such as Holland, public parks have become no go areas because they have been taken over exclusively by drug-takers who use them to exchange drugs and needles and related activities. That is a great tragedy. There are lovely cities on the Continent with beautiful buildings and facilities like canals which people cannot go to admire because of the activities of these young people who are given the freedom to abuse themselves in this way by taking drugs.

During the week I read about the prosecution of a motorist who was intoxicated in charge of a vehicle. Because the vehicle was parked in a private laneway the case was thrown out of court. I can see some difficulty with the words "public place" in the amendment. People could be misbehaving in a private place but causing a great deal of nuisance to the public adjacent to the private property or field. This is an area that perhaps the Minister could examine.

We need to discourage this type of activity because, apart from the annoyance to our own citizens, there is also a great deal of intimidation of tourists coming to our country. Some young people under the influence of alcohol or who deal in drugs approach tourists and visitors to our shores demanding money. This is menancing and intimidating and should be discouraged. Deputy Derek McDowell has a legal interpretation of some of the words involved and he might make further comment because it is necessary to get the balance right.

The proof of the pudding will be in the eating. This law will only take effect if it is interpreted in a positive and intelligent way by the Garda. I would not want to see the legislation abused. A few youths playing music in a public place and having a few beers but not making a nuisance of themselves or interfering with anybody else's enjoyment, would not constitute dangerous behaviour. We need to get a balance and not to be too draconian when dealing with ordinary people enjoying themselves. Youth must have its fling, young people will be exuberant and have verve and enthusiasm which is to be encouraged as long as they behave sensibly and do not interfere with the rights of others.

Miss Harney

I support the thrust of this amendment but I have a number of questions with which perhaps the Minister could deal. Deputy Gay Mitchell's amendment seeks to broaden the powers being given to the Garda Síochána in section 4. That allows them to seize alcohol where the person is a danger to himself or likely to cause danger to another person in the vicinity. We need to go wider than that.

Mr. G. Mitchell

Is this in section 4?

Miss Harney

It is an additional power which is necessary because somebody can cause a great nuisance and disturbance in a public place and yet not be a danger to themselves or to somebody in the vicinity. I am pleased also that Deputy Gay Mitchell goes beyond alcohol and uses the definition in the Bill of intoxicating substances which would include solvents and drugs.

"Public place" is defined in the Bill and the point raised by Deputy Kemmy about Deputy Gay Mitchell's amendment also concerns me. I would like to ask the Minister for clarification. In addition to highways and what we all perceive to be public places the Bill includes a train or a vessel carrying people for reward. This would obviously include somebody coming from their holidays, a conference on the car ferry or a train. Four or five people might be having a drink enjoying themselves and that could cause a nuisance to another passenger.

I am worried about including such powers. The Minister may say it is unlikely a garda will be on the train to seize the substance, but that is not impossible. We are introducing legislation that has to be practical. An off-duty garda could be there, for example. I ask for clarification in relation to the vessel and the train because this aspect concerns me in the definition of "public place".

In relation to the comments made by Deputy Derek McDowell, the gardaí will not only be given powers to seize the substance, under section 9 which relates to section 4, they can ask the person to leave the vicinity or to desist from their behaviour. If they refuse, they can be arrested and imprisoned for up to six months even for the offences under section 4. I intend to deal with that under section 9.

Deputy Shatter made an important point about Dublin and which applies to urban areas generally. The powers given to the Garda Síochána to seize alcohol, in particular from under-age drinkers, are ineffective because at least one of the group will be over the age limit. Therefore the gang can say to the gardaí the alcohol belongs to X who got it from the supermarket or off-licence because he is over the age limit; therefore, the gardaí do not have the power to seize it under the existing legislation.

Secondly as Deputy Gay Mitchell said — it is particularly difficult in a country without identity cards for the Garda to ascertain the age of young people. If any of us saw ten young people lined up, I do not think we could put our hands on our hearts and say who is 16, 17, 18 or 19. Perhaps the Minister could comment on that in her reply.

I know section 4 applies to everyone, not just to under-age people. Deputy Gay Mitchell said in moving the amendment that it was a particular difficulty with under-age persons. It is a difficulty in relation to the consumption of alcohol generally. If it is causing a nuisance in a public place, regardless of the age a garda must have powers to seize the alcohol.

Mr. Gilmore

Although this amendment is tabled as a separate section, it relates greatly to section 4 of which we have disposed.

Mr. G. Mitchell

It does not relate to section 4 in any way. Section 4 deals with an individual who is a nuisance or danger to himself and others. This deals with people who are a nuisance to the community because of assembling in numbers.

Mr. Gilmore

I know Deputy Mitchell is at pains to draw that distinction but we are dealing with the drinking of alcohol in a public place. I am in favour of controlling that because, as other Members said there is clearly a problem when people consume drink in a public place — the standard examples are the cider party or the gang of youths with their bag of cans drinking in the corner of a park and creating a nuisance for the people in the area. However, we must be consistent about this, we cannot make it a crime to consume the drink and say it is not a crime to be drunk in similar circumstances. There is a need for consistency, the point to which I want to draw some attention.

I support the amendment and, unlike Deputy Harte, I do not think the problem is confined to travellers. The "Hooray Henrys" can equally cause a disturbance, albeit in more select surroundings; it needs to apply there as well. We need clarification as to the circumstances in which this provision will be used. Are we talking about the cider party in the corner of a park or about people who take their drink out onto the footpath outside a public house? Will the latter not be permitted under this arrangement or will grades of disturbance be taken into account under this amendment?

One of the problems we must recognise and address is that this cannot be dealt with solely by legislation and by making drinking in a public place a crime. Part of the problem in any community where youths congregate and drink in a public place is that there is little or nothing constructive for them to do. I am constantly coming across community groups, people involved in sports and youth clubs, and so on who tell me that their efforts to try to provide facilities for young people are constantly being frustrated, either by lack of co-operation on the part of statutory bodies or because of lack of finance. That has become a critical problem since the establishment of the national lottery. The kind of disposable income that was available in local communities for draws and other various forms of fund-raising available to sports clubs, community groups, youth clubs and so on is no longer there.

Many youth clubs and community organisations do tremendous work in trying to keep young people out of trouble and try to provide the facilities and the leisure activities to divert them from the cider party in the corner of a park, but they cannot do it because of lack of resources. There is a need, apart from providing legislation that says that the Garda can seize the drink from them, to provide resources for those community groups. It is time to recognise that some investment in community organisations who are trying to keep young people out of trouble would be money better spent than having to spend it later on providing places in detention centres for them. It costs £600 a week to keep someone in a place of detention and a couple of thousand pounds to a community group or to a sports club often means that the group can stay in existence and provide facilities to keep young people out of trouble.

I have no problem with the provision and I agree with it. Indeed, yesterday, I was talking to a constituent who lives in a corner house, close to a public park — physically, it is a lovely location — and she told me that she is selling it because of the trouble in the park and the frustration the Garda have in dealing with it. I support dealing with it lawfully and seizing the drink, but that in itself will not solve the problem unless leisure facilities, especially for young people, are provided in local communities.

Mr. Shatter

I disagree with one statement Deputy Harney made. She raised a query with the Minister in regard to the application of this amendment in the context of the definition of a "public place" and expressed concern that if this amendment was enacted, it might affect those on trains or ships who had to put up with people taking intoxicating substances or liquor and making a nuisance of themselves.

We should acknowledge that a group of people in a cider party — they may not necessarily be drinking cider, the cider industry is complaining that they are always picked out — drinking alcohol and making a nuisance of themselves adjacent to someone's house, which is the most common experience I have in my constituency, is one problem area. However, it is very unpleasant for anyone to be sitting on a train, surrounded by four or five people who are getting increasingly more intoxicated and making a nuisance of themselves or indeed, to be on a boat between Ireland and Britain surrounded by large numbers of people who are clearly drinking to excess — no control is exercised over the level of drinking. That can be an extremely unhappy and uncomfortable experience for adults and particularly frightening for children. Indeed, if one is sitting alone on the top of a bus in Dublin late at night and a group of intoxicated people get on carrying alcohol, it is a particularly terryifying experience to be taunted and made feel that you are under threat.

People who wish to drink to excess — this is not to be encouraged — should do it within their own homes and not interfere in the lives of others. Indeed, some of the people who do it within their own homes are destroying the lives of those living with them, but that is another problem. If we are generally addressing this issue in the Bill in a number of ways, that should be taken into account.

Like Deputy Mitchell, I welcome many aspects of this Bill, but I have serious reservations about others and we will come to those as we go through the Bill. I certainly would not like us to exclude from its application the type of locations to which I have just referred.

Mr. G. Mitchell

Briefly, I would like to respond to one or two comments on the amendment.

It is disingenuous and unfair to suggest that there is some inconsistency in my opposing section 4, about which I expressed genuine concerns. Section 4 deals with an individual who in the opinion of a garda, might endanger himself or others because he is intoxicated. That section should be dealt with in a road traffic Act — it may already be covered by jay walking or another offence — but it certainly has no place in a public order Act, whereas this section deals with the point which I have been making.

Someone asked if a person standing outside a public house drinking a pint can have it confiscated by a garda? It can if the person is a nuisance to others but it is not meant to single out that sort of situation. What it is meant to single out are the groups of people, what I call the "knots" of people around this city, large numbers of them, gathered drinking cider, lager, whiskey, vodka and so on, some of whom take drugs and wine and cause a terrible nuisance to others and imprison people. If Members want to support the amendment, let them do so and not be, as it were, in a half-way house ungraciously supporting it. A woman in my constituency who used to live in a housing estate in either Deputy Gilmore's or Deputy Shatter's constituency had to sell her house. She could not continue to live there and is now living in Drimnagh where she is very happy. She was in what might have been considered a very ——

Mrs. Geoghegan-Quinn

That has nothing to do with TDs, I presume.

Mr. G. Mitchell

No, it has nothing to do with TDs. That woman was living in what one would consider a very fashionable housing estate but had no option in the end but to sell her house and move out. She was being tormented by large numbers of people drinking outside her house. Where this occurs at the corner of houses, outside the gates of houses, in open spaces, on greens, in parks and causes a nuisance to others the gardaí should have the power to seize the intoxicating liquor. As I understand it at present it only applies to people under 18 and gardaí claim that they cannot ascertain who is under or over 18. It is in this context that I propose my amendment. Large numbers of people in the community are affected by such activity and it is our job and our duty as legislators to address it. I hope the Minister will accept the amendment.

Mrs. Geoghegan-Quinn

First, I wish to respond to Deputy Gilmore. He has to recognise, as I do, that this amendment is about drinking in public and not about the national lottery or resources given to certain areas. While I appreciate that there are problems such as he outlined, I am not going to attempt to deal with those. I will confine myself to responding to the points made about the amendment to which I am opposed.

While I appreciate what Deputy Mitchell is attempting to achieve, I believe his amendment is drawn far too widely. I am mindful of the points made by Deputies last week, particularly by Deputy Mitchell, that we have to have proper regard for people's civil liberties. In this context I believe there are inherent difficulties with the notion of confiscating private property in circumstances where no offence is actually being committed. Under section 4 the power of confiscation only arises where a member of the Garda Síochána suspects, with reasonable cause, that an offence under the section is being committed, i.e. that a person is present in a public place while intoxicated to such an extent as would give rise to a reasonable apprehension that the person might endanger himself, herself or any other person in the vicinity.

As I mentioned to the committee last week, that power is similar to a provision contained in the Intoxicating Liquor Act, 1988 which applies to under-age drinkers but, again, the provision in section 37 of that Act only arises where a member of the Garda Síochána suspects with reasonable cause that an offence under specified sections of the Act is being or has been committed. Those specified sections relate to offences involving the supply of intoxicating liquor to those under 18. In Part III of the Bill which deals with crowd control, we provide for the seizure of intoxicating substances where an offence has not been committed. That arises in a very particular context and there is specific provision in that Part allowing gardaí to erect notices at barriers indicating that to proceed beyond the barriers while in possession of any intoxicating liquor will render such liquor liable to confiscation.

As well as the Deputy's proposal not being linked to the commission of an offence, I am not sure if it has much meaning to refer, as the amendment does, to intoxicating substances being consumed in such a way as to cause nuisance. I would have thought that if there are difficulties in this area, they arise because of bad behaviour attendant to the consumption of the intoxicating substances not because of the act of consumption itself. If one looks at the wording, what the amendment would do is that if anybody disliked the manner in which Deputy Mitchell sipped his Guinness or the chairman sipped his Murphy's in a public place, they could under this section be guilty of an offence, just because someone did not like the way the Deputy sipped his favourite tipple.

I would be reluctant to extend the power to confiscate intoxicating substances beyond the circumstances outlined in section 4 where, obviously, there is a direct link between the offence and the intoxicating substance. However, I can appreciate what Deputy Mitchell is trying to achieve and it is something that does not just arise in Dublin but in urban areas and built-up areas around the country. I would certainly like to have an opportunity between now and Report Stage to come up with a solution because there is a balance.

I cannot accept the amendment as it is drafted because it is too wide and at the same time there must be some meeting of the waves to which Deputy Mitchell and I can come. I would like time, if the committee is prepared to give me that, until Report Stage to bring forward an amendment or to incorporate what Deputy Mitchell wants into another section which would deal exactly with the points Members have made.

Mr. G. Mitchell

I will be happy not to press this amendment if the Minister gives the undertaking and on the understanding that I can reintroduce it on Report Stage. With regard to the note drawn up for the Minister by her civil servants, when they travel the records of the Dáil, they will see I certainly am concerned about civil liberties. Unfortunately, as the main Opposition Party spokesman on Justice, I do not have available to me civil servants to travel the records. If I had I would throw back some of these comments across the floor. I do not appreciate them being thrown at me.

What civil liberty did the woman who had to move out of her house have? What civil liberty do people who are imprisoned in their homes, afraid to go out at night because of these large numbers of people have? That is the civil liberty I want. Whether the Chairman sips his Murphy in one way or another is his own business and how I sip my Guinness is mine but if people are interfering with the rights of other people to come and go, it is a very serious matter.

I put this serious matter to this committee not just in the flat context in the city or what might be considered the working class housing estates in the city but as a problem all over this city and county. It needs to be addressed because it seems to me very clearly and definitely that the civil liberties of individuals and of whole housing estates are being interfered with by youths and adults gathered together — often the adults being the ones who procure the drink and spend the night drinking with them — and behaving in a way which is not just a nuisance but in some cases criminal because they are stealing goods to feed their habit night after night. It is something which we as legislators need to address. Based on what the Minister said, I would be happy to withdraw my amendment on the understanding that I can reintroduce it on Report Stage. If the Minister introduces an amendment which deals with the matter I will be happy with that.

Mr. Browne (Carlow-Kilkenny)

Reference was made earlier to philosophers and academics, a comment that came a little ahead of time. I have to admit that like beauty, it is in the eye of the beholder. I cannot see the logic in a committee passing section 4 which decides that an honest citizen walking home at night can be arrested because someone thinks that he might be a danger to himself and that he might cause injury. We might cause injury to ourselves crossing back over the road to Leinster House and we are supposed to be sober. The Minister said that the last day that she was going to check out the wording as she felt it was quite loose and today she did not tell us anything about what she found. The good law-abiding citizen is being treated as a criminal. The Minister does not consider it fair to deal with a crowd of people out drinking and causing a nuisance.

Mrs. Geoghegan-Quinn

I thought I had clarified the position. I am not opposed to what Deputy Mitchell seeks to do in his amendment, or indeed what other Members want to do. I am stating the simple fact that according to the way the amendment is worded the manner in which the alcohol is consumed becomes an offence rather than where it is consumed or what nuisance is caused to anybody else. In fairness to Deputy Mitchell, he accepts that I cannot accept his wording. I want time to examine a way in which we can make an offence out of what Members have been suggesting in relation to this amendment.

Mr. Browne (Carlow-Kilkenny)

The same illogicality can hold about the reasonable apprehension of a fellow walking down the street. That is what we have been arguing about. The Minister would not accept that but now she portrays the extreme example that someone might object to the way the Chairman or our spokesman would drink their beer out of the side of a glass. It is a question of someone causing a nuisance. There is no logic in accepting section 4 and rejecting this amendment on the basis that it is too open to interpretation.

Mr. Gilmore

It comes down to the difference between being drunk and sober. As I understand it, section 4 will allow the gardaí to seize the drink where the person is drunk, that was the section which Deputy Mitchell was opposed to. Deputy Mitchell's amendment proposes to enable the Garda to seize drink when one is still sober. There are circumstances which we all are aware of where although the people concerned might not be drunk the Garda should be permitted to seize the alcohol. It is not desirable that it should be solely confined to cases where the people consuming the drink are drunk which is contained in section 4.

Mr. D. McDowell

I share many of the Minister's reservations. The point has been well made by Deputy Gilmore that drinking in certain public places in a certain way is offensive and, perhaps, should be an offence. However, it is an offence which should be punishable by directly addressing its cause which is the consumption of the alcohol rather than something which should be trawled through the courts and for which people should be put in gaol or fined. I assume that is what Deputy Mitchell is trying to address in his amendment.

I suggest to the Minister that when she is considering this that she might, for example, provide for the power to confiscate the drink under some of the offences in the Bill such as those in sections 5 or 9. Perhaps that would in some way get around the difficulties which she has with Deputy Mitchell's amendment.

Miss Harney

The Minister's response has been reasonable. She understands what Deputies are seeking to do, which is to deal with people being a danger to themselves and others and where a nuisance is being caused, particularly in residential areas. If a group of people returning from a rugby weekend, a sporting weekend, a party conference or a holiday have a few drinks taken and are a bit noisy but are not causing any real harm and are on a vessel then we will have to be reasonable. The Minister talks about civil liberties and this is important. We must to a large extent understand behaviour. We cannot deal with what are effectively social problems through criminal legislation.

Most people would wish to see that the problems that arise in residential areas and other public places dealt with where somebody is causing a constant nuisance by virtue of the consumption of alcohol and other subtances to families who, perhaps, have sick people in the house or young people whose sleep is disturbed by the general activities which result from the consumption of substances like this in a public place. The Minister's response was reasonable in all the circumstances.

Perhaps I could help. Offence was caused by the Minister saying that it was the way one sipped a drink but I do not think the Chairman sips Murphy's, I think he sips Ballygowan and Coke. Clarifying that might help people to understand the comment. The Minister is worried about the technical aspect and including a provision which will work. We should give her an opportunity to return on Report Stage with an amendment having considered the matter more fully. Then, perhaps, Deputy Mitchell could press his amendment if he is not satisfied.

Mr. Shatter

The Minister's response was reasonable but she somewhat unfairly had a go at my colleague, Deputy Mitchell, in the middle of being reasonable.

Mrs. Geoghegan-Quinn

Never.

A Deputy

Deputy Shatter would never do that.

Mr. Shatter

I had to note with some amusement that she said to Deputy Mitchell that it would give offence if someone did not like the way one drank one's Murphy's or Guinness. The answer to that is contained in section 4, one could create an offence if someone did not like the way one walked, if one tottered slightly it would be an assumption that it was a reasonable apprehension and if one did not totter but managed to walk the straight line no apprehension should arise. Deputy Mitchell's amendment has been criticised on the basis that it creates an offence based on someone's perception of whether they approve of the manner in which one lowers one's pint. Section 4 can be based on creating a criminal offence if someone does not appreciate the manner in which one walks along the street.

It is important to know that there is a balance between protecting the public and protecting civil liberties. Of course, the irony is that under section 4 the Garda will now have the discretion to arrest large numbers of Fianna Fáil members tumbling out of the Fianna Fáil Ard Fheis each year if they think they have had one drink too many. Or, indeed, they could surround wedding parties as they leave the celebrations in hotels.

Mrs. Geoghegan-Quinn

We do not behave like that at the Ard Fheis.

Mr. Shatter

Well, I would not bet on that. I am not sure that section 4 achieves the balance. In the context of the amendment to section 5 proposed by Deputy Mitchell it might be of some help to the Minister to suggest that the technical issue which she raised is a legitimate technical problem. The section would work if it was phrased in the following way: where a member of the Garda Síochána suspects with reasonable cause that a person consuming intoxicating substances in a public place is behaving in such a manner as to cause nuisance to another person, the member concerned may seize, obtain or remove without warrant any bottle or container together with its contents. That would work and it would resolve the technical problem the Minister has.

The Minister said there were some constitutional difficulties in getting a garda to remove private property. Section 4 authorises the Garda to do that and so Deputy Mitchell's amendment is simply a mirror image of section 4, to address a problem which the Bill does not adequately address. There is no problem in that regard with section 4 if someone is making a nuisance of themselves. There may be a real problem with section 4 as it is worded because the nuisance element is not required but I do not think Deputy Mitchell's amendment will raise a constitutional difficulty.

The amendment I am suggesting to the Minister may work and she might examine it. In that context, I say to the Minister to beware constitutionally of section 4. I do not believe that Deputy Mitchell's proposal will have any constitutional difficulties or infirmities. I am convinced that at some future date section 4 will face a constitutional challenge on the basis of it impinging upon freedom of movement provisions in the Constitution.

Mr. Kemmy

If some of our comments and submissions to the debate today are taken out of context it might appear to a casual observer that we are a crowd of stuffed shirts, old fogies out of touch with reality and killjoys. We have not emphasised the benefits of alcohol in our society, the fact that it works as a social lubricant and has achieved much in our society. It is important to put it in context, as well as emphasising the negative aspects of alcohol abuse which has disgraced and often disfigured our society in the past.

Deputy Gilmore has got a good balance on the word intoxicated. That is a key word in the interpretation of this section because if one says that somebody is intoxicated, one can be sure that means that the person is not sober. The word intoxicated does not necessarily mean the person is drunk. A person is under the influence of alcohol if they are intoxicated but not necessarily drunk. It gives the Garda power and tolerance in that area to use their judgment to ensure that no breaches of the peace take place when persons are drinking. Deputy Gilmore was given a fair and balanced interpretation.

Some of the points made by Deputy Mitchell will be contested in the courts. We have devoted a great deal of time to this aspect of the Bill and use will only tell us how it works in practice. Much will depend on the intelligence, experience and goodwill of the gardaí. The points made by Deputy Mitchell will be borne out in practice. We should accept what the Minister has said.

Mr. L. Fitzgerald

The tone of the debate has been lowered by the remark made by Deputy Shatter. I am not too surprised at that, it was not his first time and I am sure it will not be his last. I would like to reassure him that he will not have this problem in his party because my view of their present plight is that even if people were offered a free drink they would not turn up at an ard-fheis.

I share the concerns of Deputies Gilmore and Harney. There are many examples in urban constituencies of young people consuming drink. They may not be drunk but slightly under the influence — it is difficult to come up with legal terms that would be accurate in this context — of drink. They can become a serious nuisance and can cause aggravation, disruption to community life and to the peace and quiet of communities. There is a case there to be answered. This problem is not confined to Dublin northeast or other constituencies outside the inner city; it applies also to other areas. We hear of many young people in the inner city who inhale substances causing a nuisance even though they are not stoned out of their minds, they are not extremely intoxicated.

I agree that a balance must be struck between the rights of the community to peace and quiet and, at the same time, to respect the civil liberty of the individual. I share the Minister's caution at the wording of the amendment. If it was to be implemented verbatim it could lead very easily to an abuse of power. I commend the Minister's approach. I ask her to look at the provision again as I think there is a need to examine it.

Mr. O'Donoghue

Deputy Kemmy raised a very interesting point on the difference between intoxication and a person being drunk. When does one consider a person is drunk? It has been suggested that a person is drunk when he is lying prostrate on the ground. We should have a balance.

Mr. Shatter

One has to introduce balance when one is drunk.

Mr. O'Donoghue

That is another matter. In order to bring balance into this, it has to be recognised that crimes committed are very often not drink-related. If one travelled from Mars or some other planet to the city of Dublin and parked one's car near St. Stephen's Green one could be forgiven for thinking that one had arrived in some kind of Utopia, such is the decency with which private individuals instruct one how to park a car. After parking a car one gives these people a few pounds. If one does not give them a few pounds the tyres will be slashed or the windscreen broken. I am more concerned about the hats that these gentlemen wear than I am about youngsters running around with a few cans of lager. I am saying that to introduce a certain amount of balance into this.

Mr. E. Walsh

The intention of this Bill is to enable the Garda to deal with a problem which we all known is serious. If we restrict it too much with precise statments we may find ourselves unable to deal with particular events. For example, a person could be absolutely intoxicated causing no offence to anybody and a person could have taken a small amount of acohol and be very aggressive. In those circumstances a decision must be made on the basis of what one finds, not as is described.

Mr. G. Mitchell

It is obvious from the support for the general thrust of my amendment that I found a major weakness in the Bill. That is my job and the committee's job. The Minister has given a reasonable response. I do not know why that should bring laughter. It is the reasonable and proper thing to say.

Mr. D. McDowell

Try to put it constructively.

Mr. G. Mitchell

In view of the comments by the Minister on the technical drafting of the Bill I ask that the Clerk be directed to report to the committee on precisely what assistance is available to Opposition spokesmen on drafting of technical amendments. If we are to do our job properly it is a matter which must be addressed. When there is some technical advice available to this side of the House we will put the Minister, and her civil servants, to the test and see just how good their drafting is because my opinon is that it is not always up to scratch. I will not press the amendment in view of the fact that the Minister has agreed to address the substance of it on Report Stage. If no amendment is circulated I reserve the right to re-introduce my amendment on Report Stage.

Mrs. Geoghegan-Quinn

I thank Deputy Mitchell for withdrawing his amendment. It is our duty to make whatever changes are necessary to produce good legislation. If there are areas in which the Bill is weak and needs to be strengthened then let us do that. If there are areas where Members feel that the civil liberties of ordinary people are being interfered with in an unnecessary way then let us make an amendment on that basis. What we are looking for is a balance between the two so as to deal with a very difficult situation in relation to public order disturbances up and down the country. I wish to express my thanks to those Deputies who have supported me in asking Deputy Mitchell to withdraw the amendment on the basis of a commitment given that I will produce an amendment which I hope will meet the concerns of those who contributed to the debate on the amendment.

Mr. G. Mitchell

I wish to thank those members of the committee who supported me in this amendment. There is cross-party support for this amendment which highlights a very serious problem in the community. I am very thankful for the support of the committee in pressing the general thrust of the amendment.

Chairman

The Minister has indicated that she is fully aware of the views of Members and I am sure she will take them into consideration. As agreed we will adjourn now and, with the committee's permission, we will meet again in mid-September.

Amendment, by leave, withdrawn.

Miss Harney

On a point of order I wish to raise something I raised in the House yesterday — Deputy Mitchell has just raised it——

Chairman

Is it in relation to a further meeting?

Miss Harney

It is in relation to remuneration for the Opposition on these committees. Is there any assistance available to the Opposition on this committee?

Chairman

That is a matter for the Whips. I suggest, it be taken up with the Whips.

Miss Harney

Is remuneration paid to any Member of the Opposition on this committee?

Chairman

No, not to my knowledge.

Mr. Shatter

In support of Deputy Harney, the Minister is dealing with a Bill of a technical nature. Some of us have legal training but most Members of the Committee do not have legal training. There is no reason why legal training should be necessary to be a functioning Member of the Oireachtas. The Minister has found it necessary to be here with four officials for this Bill. I am not criticising the Minister for that. Ministers, over the years, have always had their officials in the House for the taking of Bills. That is right. I do not want the Minister to misunderstand my remarks. If these committees are to function properly, and if they are to be truly committees in which we are seeking as legislators to improve legislation, it is essential that Opposition Members of this Committee are given the technical backup that at least to some extent mirrors the technical assistance available to the Minister. I am asking you as Chairman of the Committee to get that point across at meetings with the Government or the Taoiseach. It would facilitate the speedier workings of these committees because the technical discussions that have to take place about the workability of amendments would prove unnecessary if the technical backup was available to assist Members tabling amendments to Bills.

Chairman

Yes, this is a matter for the Dáil and the Whips, and I suggest to the Deputies to take it up with their respective Whips.

Mr. G. Mitchell

In relation to this Committee and drafting assistance I suggest that the Clerk reports to us precisely what is available to me as Justice spokesman for Fine Gael.

Progress reported; Committee to sit again.

The Select Committee adjourned at 1.33 p.m.