Dáil Éireann díospóireacht -
Wednesday, 9 Dec 1987

Vol. 376 No. 6

Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987 [Seanad]: Committee Stage.

SECTION 1.

Mr. Noonan

(Limerick East): I move amendment No. 1:

In page 3, subsection (1), line 18, to delete "for the time being".

Line 18 deals with the definition of an officer of the Customs and Excise and it includes a member of the Garda Síochána and any person in the public service who is for the time being employed in the prevention of the illegal importation or exportation of goods. That is cast too widely. It is totally appropriate that the Garda Síochána should have exactly the same powers in this area as officers of the Customs and Excise. I have no quibble with that.

Anybody who is serving to prevent the illegal importation of goods as a Customs and Excise officer is equally entitled to exercise these powers because that is the intention of the Bill. It has been the practice in the past but as the Government in a more major way are redeploying civil servants right across the public service it is conceivable that somebody from another Department could be assigned to Revenue; in fact a number of officers have been assigned already this year to the Revenue Commissioners and that is in order.

I am trying to ensure that somebody who exercises these wide powers should be a permanent member either of the Garda Síochána or of the Customs and Excise. I do not think the definition section as framed is appropriate. It seems that on a day-to-day basis anybody could be assigned to the work of preventing the illegal importation or exportation of goods and I do not think that is adequate. Very serious powers are being given in this Bill which I claim we would not dream of giving if it was not for the horrific reaction we feel towards the victims of drug abuse. If these powers were being sought even by the Garda Síochána or any other branch of the public service in relation to any other area of activity, we would not concede the powers without many safeguards attached.

The Garda Síochána are trained in the exercise of their duty. Permanent officers of the Customs and Excise have some training as well and have a great deal of experience in this area. The net is being cast far too widely when a person in the public service who is for the time being employed in the prevention of the illegal importation or exportation of goods is covered and is empowered to act under every section of the Bill.

I am not sure whether my amendment meets my concern. I am simply asking that the words "for the time being" be taken out; in effect, any member of the public service who is permanently employed in the job of preventing the illegal importation or exportation of goods should be covered by this measure. I agree that all members of the Garda Síochána should be covered by it. In my opinion the powers are stronger and wider than the powers we would confer in other areas of criminal law even on the Garda Síochána. I do not think they should be allocated to somebody who could be nominated as an acting officer of Revenue on a Monday morning at 9 o'clock and would have the powers until that evening or for the rest of the week.

Quite a lot of discretion would be required in carrying out searches, especially searches on persons, and intimate body searches which are now envisaged in the Bill in view of the amendments accepted in the Seanad. It is not appropriate to employ people on a casual or temporary basis and to give them the very wideranging powers in this Bill. I would ask the Minister to accept my amendment or, if he feels that the drafting of the amendment does not meet the case I am making, to come back with an appropriate amendment on Report Stage to meet the objections I have raised.

Mr. McCartan

The Workers' Party support this amendment as being a reasonable one and would ask the Minister to consider taking it on board. The Bill envisages granting very wide powers of search of the person and of property, of vehicle and vessel and of the home of anybody suspected with good cause to be in contravention of the provisions of the Misuse of Drugs Act. As the Bill stands, there are few additional regulatory provisions. The Garda Síochána who are fulltime law enforcement officers are subjected to far more rigorous supervision than anything envisaged in regard to customs officers.

It is important that there should be clarity as to who can exercise the powers conferred under this Bill and at what stage, it is hoped the Minister will tell the House that he will be directing his officials in the area of Customs and Excise to engage in very stringent training regarding the exercise of these powers. Anyone involved in the area of law enforcement and the exercise of powers of arrest, detention and search will say that training is essential in the exercise of these powers and in understanding the limits to which one can go. It is a worry that people who might be employed on a temporary basis would come within the definition of "officer of Customs and Excise" as given here.

I hope the Minister will outline the need for the expression "for the time being". In what circumstances are persons brought in and out of the service and for what purpose? From what Department or other duties are they brought? The Bill appears to be drafted to accommodate a standard or regular practice of persons moving in and out of the service at peak holiday times or when Customs and Excise staff are on annual leave. Auxiliary forces appear to be brought in on these occasions. There is concern about the granting of exceptional powers without the same regime that exists for members of the Garda Síochána in the exercise of similar powers. The amendment seeks to delimit clearly the persons who may exercise the powers conferred in the Bill and the circumstances in which they may do so.

Minister of State at the Department of Finance (Mr. N. Treacy)

I thank Deputies for their contributions and I assure the House that there are no draconian measures proposed in this Bill. There will be no intimate body searches. That is not envisaged and I have given that categoric assurance to the Seanad. I have also given it on Second Stage in this House and I reiterate it now.

The definition of "officer of Customs and Excise" here is identical with that set out in existing legislation, in particular in the Customs Act, 1956 and the Customs (Amendment) Act, 1942. "Officer" means an officer of Customs and Excise or any person acting under the orders of such officer or any member of the Garda Síochána or Defence Forces assisting such officer.

If the State in the persons of the Customs and Excise officers is to fulfil its proper role in combating smuggling or curtailing the import of drugs they must be given some flexibility. The phrase "for the time being" is designed solely to allow a degree of potential flexibility in the deployment of public servants where, for example, circumstances might require the drafting of public servants with particular expertise to assist in the fight against smuggling, including drug smuggling. There is a permanent corps of Customs and Excise officers. If for any reason or acting on any information, evidence or observation, a senior officer or officers feel it is necessary to bring in members of the Garda Síochána or members of the Defence Forces or other personnel from the Department of Finance or the Revenue Commissioners or from any Government Department we must give them that flexibility in particular situations, otherwise we would fail to implement the provisions of this legislation. This would happen only in exceptional circumstances.

The normal day-to-day running of the system will involve the permanent staff of the Customs and Excise who act honourably and vigilantly week after week in the exercise of their duties. In order to implement the law in its entirety and to be able to respond to any particular eventuality we must allow flexibility to ensure that if people are apprehended the law governing those responsible for their apprehension is strong enough to bring these people to full conviction in the courts. There must be no loophole in the law to prevent officers of the State from assisting the permanent officers designated to implement these rules and regulations on a daily basis.

For that reason I regret that I cannot accept this amendment. I hope the House will agree.

Mr. Noonan

(Limerick East): The Minister of State says no draconian powers are being given to anybody under this Bill. If we think of Draco as the great dictator who spilled a lot of blood in his time, we accept that no blood is being spilled in this Bill but as the term is modernly construed the powers are very strong and the exercise of those powers could fall very severely on people. There are powers of search here of a very wide nature. There are powers of unlimited detention, which are not contained anywhere else in criminal law. The powers are draconian in the Bill in the accepted modern meaning of the word and I would justify the draconian powers because of the nature of the problem. We are all agreed on the nature of the problem. We know that Governments all over the world have taken to themselves the most draconian of powers to combat drug smuggling and drug abuse and the misery contingent on that.

The Minister of State has said that there will be no intimate body searches. The copy of the Bill I have is the one which was presented to the Seanad but I was reading the Bill as it emerged from the Seanad. The Minister accepted there a series of amendments after the powers of search where it is required that a designated medical officer would be present.

Mr. N. Treacy

Not would be present but may be present. It is not mandatory.

Mr. Noonan

(Limerick East): I agree. Surely the Minister would not accept the necessity, even in a minority of cases, for a qualified medical person to be present if all that was involved was searching somebody's pockets. The whole basis of accepting medical supervision, in a situation such as this, is because it envisages searches of the orifices of the body, and rightly so, because drugs have been brought into this country, and other countries concealed in that way. I cannot understand why the Minister is now saying in subparagraphs (D) and (B) that a search of a person may be carried out by a designated medical practitioner, and that a person detained shall not be searched by an officer or person of the opposite sex. Why do we need to have these subparagraphs in the Bill — they were amendments accepted in the Seanad — if there are not to be intimate searches? I do not think anybody would object to being searched by a member of the opposite sex unless the search was intimate. I do not think anybody would object to being searched without the presence of a qualified medical person unless the search involved an intimate search which would include an examination of the orifices of the body to see if an illegal drug was concealed. If the Bill means anything it means that and especially in light of what the Minister accepted——

An Leas-Cheann Comhairle

When I look at section 1 and the Deputy's amendment I think that the debate seems to be moving somewhat beyond the provisions of section 1.

Mr. Noonan

(Limerick East): With respect, a Leas-Cheann Comhairle, my amendment deals with the definition of a Customs and Excise officer. That is extended to include all members of the Garda Síochana and also include anybody who from time to time is involved in the work of preventing the illegal importation or exportation of goods. In order that the House might judge whether it is appropriate that somebody on a casual basis, or from time to time — to use the words of the Bill — is the appropriate person to be empowered with what is contained in the Bill, the Minister was quite right in pointing out the nature of those powers. If the power was to stop traffic and redirect it I would not be worried about the definition but since the powers are draconian, and rightly so, because they are combating the greatest scourge of the 20th century, it is necessary to talk about the nature of those powers before we can adequately judge the appropriateness of the personnel who will exercise them. The Minister, quite rightly, replied to me in that context. He gave a commitment on Second Stage, and he gave a commitment in the Seanad, that there would be no intimate body searches. The Minister's commitment, with all due respect, is not worth much in a court of law. The text of the debates of this House are not produced in the Central Criminal Court. What the Bill says is one thing and what the Minister says is different.

Mr. N. Treacy

And what the courts interpret is another thing.

Mr. Noonan

(Limerick East): What the courts interpret is what is in the face of the Bill.

An Leas-Cheann Comhairle

What the Bill says in section 1 is appropriate to our debate here. The Deputy will accept that there are sections which deal specifically with search and search warrants. While the point the Deputy is making is relevant to the Bill it might be more relevant to one of those specific sections rather than to section 1.

Mr. Carey

A Leas-Cheann Comhairle——

An Leas-Cheann Comhairle

Deputy Carey when you are making your contribution we will deal with that. I am making this point to Deputy Noonan.

Mr. Noonan

(Limerick East): I do not want to give the impression of stubbornness. If we were dealing with a definition section in isolation it could look very stubborn of me not to agree with the Minister but we are not dealing with it in isolation. We have a situation now which could be reminiscent of the classic western movie: a crime occurs, there is a lack of personnel, the sheriff swears in deputies on the street and then they are empowered to act. Under the definition section of this Bill the officers of the Revenue Commissioners, or people acting on their behalf, could, the day after this Bill becomes law, nominate half a village as people who, for the time being, would be involved in preventing the illegal importation of drugs. They could all be led by the local sergeant and could search every house and everybody in the village under the powers of this Bill. That is too wide.

I am quoting what is in previous legislation. The definition of Customs and Excise officers in previous legislation does not meet the case. I intend to come back again, on the advice of the Leas-Cheann Comhairle, to the whole question of body searches, to the powers of search and detention under the Bill and to the question of whether the powers are draconian or whether they are appropriate to the evil we are trying to combat. I believe they are but we would want to be absolutely certain about the nature of the powers and on whom we are conferring them. I am not happy with the Minister's explanation because, as far as I can see, the sheriff in the town can deputise anybody and while they are deputised they can exercise all the powers of this Bill. I do not think that is acceptable and I plead with the Minister accordingly.

I am not saying that my amendment is the best way to get around this difficulty. I would like the Minister to take on board and give a commitment that he will have a look at it and come back on Report Stage with the advice of his Department. Members of the Garda Síochána obviously must have the same powers as officers of the Revenue Commissioners. I have no problem with that. Whatever powers we decide to give here must apply to all officers of the Revenue Commissioners but I want an amendment from the Minister which confines it to that. I do not want a Bill to emerge from this House where it looks as if the cohort of people who could exercise the powers under the Bill could be indefinitely extended by administrative act. That is not the proper way to put legislation through this House. I ask the Minister most sincerely to look at this problem. I think most people in the House will concede the powers requested but we would like to know at this stage of the debate precisely who will be empowered to exercise those powers.

Proinsias De Rossa

This will be a very brief contribution. Obviously we are dealing with a Bill which concerns striking a balance between the need to tackle smuggling and particularly drug smuggling and the need to protect the rights of the vast majority of citizens and travellers who are not involved in any way in that kind of practice. As has been said already this Bill is conferring on customs officers very wide powers of search and arrest. I should like to know how many customs officers on average are employed at present so that we might know how many additional people we are conferring powers on. Might I also ask the Minister whether those powers conferred on a customs and excise officer are valid only while on duty — whatever may be their hours of work, say, between 8 o'clock in the morning and 8 o'clock in the evening — or whether they are equally valid while they sit at home watching television or whatever?

Progress reported; Committee to sit again.