Dáil Éireann díospóireacht -
Wednesday, 23 Feb 1994

Vol. 439 No. 3

Criminal Justice (Public Order) Bill, 1993: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

Minister for Justice (Mrs. Geoghegan-Quinn)

I move that the Committee agree with the Seanad in amendment No. 1:

SECTION 5

In page 5, subsection (3), line 16, after "or" where it firstly occurs, "serious" inserted.

In section 5 (3) offensive conduct is defined as meaning "any unreasonable behaviour which having regard to all the circumstances is likely to cause serious offence or annoyance to any person who is or might reasonably be expected to be aware of such behaviour". While I think the word "serious" would be interpreted as governing both "offence" and "annoyance", to avoid doubt I accepted an amendment in the Seanad to place the word "serious" before "annoyance". The effect of the amendment would be that the definition in section 5(3) would now refer to "any unreasonable behaviour which having regard to the circumstances is likely to cause serious offence or serious annoyance". The amendment does not affect the substance of the wording originally approved by the House and I hope it is acceptable.

Mr. G. Mitchell

The Minister was wise to accept this amendment which improves the section. It should be acknowledged that the Minister was prepared to accept amendments both here and in the Seanad. I am pleased to support the amendment.

Mr. Gilmore

I agree that this is an improvement. The original provision would have outlawed singing between midnight and 7 a.m. In the course of the debate the Minister agreed to amend "singing, shouting and boisterous conduct" to "offensive" conduct. What may constitute serious annoyance for one person may not for another. Consideration will be given to this point when it is tested in the courts. Will the Minister indicate her understanding of a serious offence or serious annoyance?

Mr. G. Mitchell

Would taking the hub cap off a Deputy's car qualify?

Mrs. Geoghegan-Quinn

Or even off a Minister's car.

Mr. Gilmore

In this case it would probably qualify as some kind of patriotic act and would be exempt under the political——

Mrs. Geoghegan-Quinn

In the case of the Minister's car or the Deputy's.

Mr. Gilmore

In the case of both.

Mr. G. Mitchell

Could one be extradited for that?

Ms O'Donnell

I agree that the section has been improved by the inclusion of the word "serious". There should be an objective test as to what constitutes reasonable behaviour and misbehaviour. What might be serious to me might not be serious to another. In law there is the eggshell rule concept. Some people have particularly sensitive feelings about what is serious and offensive. I hope the Garda will implement this legislation in a sensitive and responsible way. The proof will be how the Bill operates and how judges interpret the word "serious".

Mr. Costello

This is an improvement. It seems almost as if it were a typographical error to insert the word "serious" before "offence" and not before "annoyance". The Bill deals with disorderly conduct in a public place. One person's disorderly conduct might be another's high spirits. It is important that we have a yardstick to judge it by and so I welcome the amendment.

Mrs. Geoghegan-Quinn

Deputy Gilmore knew the answer to the question he posed. As Deputy O'Donnell rightly said, this matter will be tested in the courts. I might have more liberal views on what would cause serious offence or serious annoyance than someone else. It will depend on the evidence given by the gardaí and the complainant and the view the judge takes. This is a better way to deal with it rather than set down what decibels music would have to reach before it would cause serious annoyance.

Ms O'Donnell

A new set of offences is created under the Bill which will require the gardaí to make judgments based on "reasonable" and "serious". What training will be given to them? It may be useful for them to have uniform guidelines to help them implement the legislation.

I support the legislation with reservations. If we give the gardaí extra powers we owe it to them, and the general public in terms of human rights and civil liberties, that implementation of the provision be non-selective. In other words, that the offence of disorderly conduct in a public place would not have a different standard of application in disadvantaged areas as compared to Dalkey or Foxrock.

Mr. Gilmore

And some places in the Deputy's constituency.

Ms O'Donnell

The implementation of the law might be applied differently in one electoral area compared to another. We must think about that and also about training for gardaí.

Mr. Gilmore

I am concerned at the Minister's reluctance to tell us what is meant by serious annoyance or serious offence. One of the criticisms of this legislation is that it is subjective. New offences are being introduced and there is a lack of clarity in what they mean. Let us take the offence of conduct which may cause serious offence or serious annoyance. A number of possibilities arise. First the person who considers it a serious offence or serious annoyance—something which will vary from individual to individual — and second, the question of establishing that an offence has been committed if a garda is not present. I may report to the Garda that someone shouted abuse outside my house at 2 a.m. but if the person is not apprehended — or if somene walking near my house denies the offence — it would be very difficult to establish in court that an offence was committed. Even if a garda is present he may not view the offence seriously.

There is also the problem referred to by Deputy O'Donnell that the way in which a youngster may look at a garda in one part of the city will be interpreted differently from the way in which a youngster may look at a garda in another part of the city. There is also the element of class bias in the administration of justice which is palpable both from the policing and from what happens when people get to court. If you get through all those subjective hurdles you will end up in court at the mercy of the whims of the judge, whether he has been on the town the night before, whether it is early in the morning or late in the evening when he is in a hurry to get to the golf course. All these things play a part in determining what constitutes serious annoyance or serious offence.

There is an obligation on the Legislature to give guidance. Obviously, one cannot make a decision for each individual case which ultimately has to be tested and decided in court. The Minister's reluctance to become involved in that area is worrying because it means we are establishing offences, putting them in legislation and allowing lawyers to make huge sums of money arguing whether something is serious and then leaving it in the hands of the Garda and the Judiciary to make up their minds on the spot.

Mrs. Geoghegan-Quinn

For an offence to be committed under this section, not alone does it have to be a serious offence or cause serious offence or serious annoyance it also has to mean it is unreasonable behaviour. It is not stretching our imagination too far to expect that people living in a housing estate would know if unreasonable behaviour was causing annoyance or offence at 3 a.m. or 4 a.m. If we tie ourselves down to deciding what serious offence or serious annoyance will be then we will tie up the legislation so that it can never be interpreted in different ways in the courts. It is important to give the courts the leeway to make a decision based on the evidence before them. We do not have that evidence.

Deputy O'Donnell made a valid point in relation to how the Garda will interpret it. She is right in saying it can be a subjective matter. This Bill as it progressed through both Houses, was carefully scrutinised within the existing training facilities at Templemore. Obviously the Garda training officers would not know the eventual outcome of the Bill but they were very much involved in keeping abreast of the debate here and I am sure listened very carefully to concerns expressed by Members in relation to how individual members of the Garda would implement the legislation.

There is an inservice training facility in every Garda division. As each new item of criminal justice legislation is passed it is carefully evaluated and studied within an inservice training group. The way in which the Garda approach various offences, created by a particular Act, is examined carefully so that, as far as possible, there is uniform implementation. Both the Garda and I want to ensure that our laws are implemented in an equitable way regardless of where one lives or anything else.

Following its passage through the House, the timescale for the implementation of the Bill before it becomes law is reduced to one month. The reason for that gap is to ensure that the Garda have an opportunity to familiarise themselves with the Bill passed by this House.

Question put and agreed to.

Amendment No. 1a not moved.

Amendment No. 1b not moved.

Mrs. Geoghegan-Quinn

I move that the Committee agree with the Seanad in amendment No. 2:

SECTION 8:

In page 5, subsection (1), line 36, "6, or 7" deleted and "6, 7 or 9" substituted.

I should mention initially that this Seanad amendment and Seanad amendment No. 3 arise from discussions we had in this House on Report Stage. Section 8 allows a member of the Garda Síochána who suspects that a person is acting in a manner contrary to the provisions of sections 4, 5, 6 or 7 of the Bill to direct that person from acting in such a manner and to leave immediately the vicinity of the place concerned in a peaceable or orderly manner. The section provides that it shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with such a direction.

Section 24 provides for a power of arrest without warrant where a member of the Garda Síochána is of the opinion that an offence has been committed under any of a number of specified sections, including section 8. Accordingly, where a person fails to comply with a direction of a member of the Garda Síochána there will be a power of arrest without warrant.

On Report Stage there was an amendment in the name of Progressive Democrats Deputies, the effect of which would have been to include in section 24 a power of arrest without warrant in respect of offences under section 9 which deals with wilful obstruction. I indicated I saw merit in what was being proposed but Deputy Mitchell expressed concerns about this approach. In the circumstances, Deputy McDowell withdrew the amendment, having suggested a compromise which I undertook to consider while the Bill was before the Seanad. I subsequently considered the compromise which was made and I tabled an amendment in the Seanad to give effect to it which was accepted there and is now before this House.

The effect of the amendment will be to extend the power of the Garda to issue directions under section 8 to offences of wilful obstruction under section 9. In these circumstances, it is not proposed to include in section 24 a power of arrest without warrant in relation to offences under section 9. Where a person is suspected of committing an offence under section 9, and refuses to comply with the direction of a garda to desist, under the powers conferred by section 8, there will be a power of arrest without warrant because an offence will then have been committed under section 8.

Section 24 provides for a power of arrest in relation to an offence under section 8. In practical terms the amendment will mean that a power of arrest without warrant will not arise for the offence of wilful obstruction unless the person committing the offence also refuses to comply with a direction from a member of the Garda Síochána to desist. This is a sensible approach to take as a result of the various views expressed on this matter on Report Stage. I am grateful for the suggestion Deputy McDowell made at that time and I hope that Deputy Mitchell can accept that the amendment goes a long way to meet the type of concerns he expressed.

An Leas-Cheann Comhairle

In relation to Seanad amendment No. 2 the words to be deleted from the Bill are "6 or 7" and not "6, or 7" as appears on the printed list.

Mr. G. Mitchell

These amendments are an improvement and I appreciate that the Minister has taken into account comments already made. However, I have very serious reservations about section 7 and section 8 as it applies to section 7. Section 7 (1) reads:

It shall be an offence for any person in a public place to distribute or display in writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.

It is going too far to include "abusive or insulting". The section as it relates to the distribution or display of material would make it a criminal offence for someone to stand outside Leinster House or an Ard Fheis with a placard on which insulting words were written. That goes very close to denying people their constitutional right to free speech. Section 6 deals with the use of threatening words in a similar way, where it says:

It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words.

The principle applies to both sections 6 and 7.

An Leas-Cheann Comhairle

I have allowed the Deputy to make his point with regard to those two sections. Perhaps the Deputy will now address amendment No. 2 to section 8.

Mr. G. Mitchell

The amendment proposes to amend the section as it relates to section 7.

An Leas-Cheann Comhairle

It does not affect sections 6 and 7. The Deputy has made his point.

Mr. G. Mitchell

The Minister is proposing to delete "6 or 7" and to substitute "6, 7 or 9". It is going too far to allow legislation to pass through this House which makes it a criminal offence to carry an insulting placard. We have overstepped the line in this and unless we are prepared to further amend this Bill there is a possibility that it will be referred to the Supreme Court and found to be unconstitutional. I have serious misgivings. I made this point on Committee and Report Stages and asked the Minister to look at it in the Seanad. The changes the Minister has made are appreciated as they improve the Bill, but section 7 as it stands is far too dangerous.

We are anxious not to delay this Bill. There are many problems and it is not just I who cannot park a car outside my house. Someone asked about the difference between serious annoyance and annoyance and it is suggested that annoyance is when somebody's hub caps are taken and serious annoyance is when one's own hub caps are taken. Without losing a sense of humour, we must be careful about this section. The Bill will be delayed if the President refers the Bill to the Supreme Court. This Bill goes into grey areas and I am prepared to go along with it because on balance it brings the scales of justice back into equilibrium. Because this Bill deals in grey areas it will be looked at closely as to whether or not it should be submitted to the Supreme Court. Making the carrying of an insulting poster a criminal offence could give rise to it being referred to the Supreme Court.

I want to see this Bill being implemented but I criticise it for not ensuring that criminals will feel the pain they are inflicting on others and for impinging on the rights of law-abiding people. The Bill will be laughed at by criminals. There is not one criminal who is shaking in his boots because we make the carrying of an insulting placard a criminal offence. The Minister should even now consider deleting that word from the Bill because otherwise it is likely to be referred to the Supreme Court, which will delay its implementation.

Ms O'Donnell

I too am concerned about constitutionality, and not only in relation to this section. I have qualms generally about many aspects of the Bill. Legislation is necessary but I want to express my doubts about some aspects of the Bill, particularly the aspect of free speech. For example, people who oppose abortion and who have placards showing pictures of a foetus might offend some people. I am not at the radical end of the pro-life movement, but I have always spoken out about the right to information and free speech and I would fight for the right of those people to use such placards because they are very much part of free speech as guaranteed in our Constitution. It is important not to go too far and I too have doubts about making the carrying of insulting placards a crime.

With regard to section 8, I am glad that the Minister has taken up Deputy McDowell's suggestion in a compromise way. With regard to loitering as detailed in section 8, many people were worried about loitering, but the Bill is clear in that it does not make loitering an offence per se but specifies that it must be loitering which gives rise to a reasonable apprehension for the safety of persons or property. There is an objectivity there which is desirable. One aspect of loitering is that there is a growing number of young homeless people in Dublin. The Eastern Health Board recently produced the first comprehensive report which gives a clear picture of the number involved. Sadly more and more young people are becoming homeless every day, some of whom are coming out of care and onto the streets and into insecure accommodation. Inevitably this means that young people are loitering.

Certain young people, by their dress, demeanour and by the fact that they are disadvantaged, homeless and poor and have no money to stand in from the rain and buy a cup of tea or coffee, could give the impression to a reasonable garda that they are about to cause a breach of the peace. A special direction should be given to the Garda on how to deal with homeless people under 18 years.

The statistics show that 280 young people under 18 years sought help from the Eastern Health Board between January and June of 1983. Many of them are in B & B accommodation; 139 of those youngsters were sleeping rough in Dublin and 156 were in insecure accommodation. As the housing authority concerned, Dublin City Council is aware of the problem. In fact the matter has been raised in this House on a number of occasions and is the responsibility of the Minister for Health. People have expressed their concerns to me as their representative on the city council that these young people might be at risk of being harassed by garda. I ask the Minister to accept my concerns about homeless young people, as they are truly disadvantaged victims. I would hate to think that they would be further disadvantaged by the Garda harassing them under the provisions of this Bill. Section 8 refers to the failure to comply with the directions of members of the Garda Síochána and I am concerned about the selective use of Garda powers. It is important that the Garda be properly trained to be sympathetic to people without interfering with their constitutional rights.

Mr. Gilmore

First, let me refer to Deputy Gay Mitchell's hub-caps.

Mr. G. Mitchell

Has the Deputy got them?

Mrs. Geoghegan-Quinn

They are the most famous hub-caps.

Mr. Gilmore

I am reminded of Jimmy Hoffa. Deputy Mitchell should remember it could be a lot worse — his hub-caps were only stolen but by all accounts Jimmy Hoffa became a hub-cap.

Amendment No. 2 to section 8 extends the powers of the garda and I share the concern that has been expressed about provisions of this Bill, especially the provisions of this section. There has been a public demand for public order legislation. As recently as last week I attended a meeting in my constituency where I was asked again what we in the Dáil were doing to deal with the problem of groups of people congregating in a menancing way, causing disturbance, annoyance and making life a misery for people in their community. I told them the story of the Criminal Justice (Public Order) Bill. There was a great deal of support for a Bill which would make it easier to deal with this problem on the ground. I subscribe to that and I support the need for this Bill but, as other Members have said, there is a very thin line between giving legislative effect to the measures in this area that are necessary to protect the interests of the public and preventing an abuse of police power.

I share the nervousness that other Members have expressed about certain aspects of the Bill. Not only am I nervous about the Bill, I am nervous about the quality of the legal advice the Government seem to be getting in recent times. I wonder if some of the concerns we have been expressing about the Bill go back to whether the legal advice available to the Government is sound. Many provisions in this Bill are written in language that is very general, subjective and could give rise to a field day when it comes to be tested in the court.

Section 8 deals with powers of the Garda. This is a section in which a garda can tell a person to move on and, if one does not do so, one can be arrested without warrant. When the Bill originally came before the House the powers of the Gartda to deal with people who did not respond to a request were confined to sections 4, 5 and 6. Section 4 makes perfect sense and is confined to intoxication in public places, it is prudent for our Garda to deal with someone who is drunk by trying to get them home.

Similarly, section 5 which in its original form banned singing and shouting between midnight and 7 a.m. has been amended to deal with offensive conduct between midnight and 7 a.m. Again, it is probably a prudent measure that the person is encouraged to go home and only in a situation where they refuse to do so would they be in trouble. I am very concerned about the use of this provision. Section 6 relates to the offence of threatening, abusive or insulting words and a garda can tell someone to refrain and if he does not do so he can be arrested without warrant. Section 7 is similar and concerns the display in a public place of a placard which conveys something that is said to be abusive, insulting or obscene — the anti-abortion campaign is a good example.

My home was picketed by anti-abortion campaigners at an early stage of the campaign. I did not particularly like it and some of the visual material displayed outside my home — and there were a great many young children on the street who saw it — was vulgar and obscene. The gardaí concerned handled the situation in a very tactful way but nonetheless I would be concerned about the use of section 8 as amended in that scentinise ario. I would not want a situation where if this were to happen outside my home again the Garda would come along and tell the people that they had to move along and if they did not do so they would start arresting them. I cannot see how that would contribute a great deal to public order yet that is precisely what we are legislating for in this Bill.

The specific amendment that the Minister is proposing is to extend the provision to section 9, the section that deals with wilful obstruction. I think I know from the debate on section 9 what was intended. If, on her way to a community centre, a neighbour's house or a shop, a woman was stopped by even one or two heavies this would constitute wilful obstruction. On one occasion when driving into a housing estate seven or eight youngsters jumped on my car. One has to make a decision——

Mr. G. Mitchell

Did they take the Deputy's hub cap?

Mr. Gilmore

No, I was much faster than the Deputy. I was not worried about the hub caps; I was afraid that they were going to take me. That would also constitute wilful obstruction.

I ask the Minister to clarify one matter. Concern has been expressed as to whether this legislation will apply to demonstrations, strikes, pickets and so on. My clear intention in placing a picket on a premises during an industrial dispute would be to stop in a peaceful way people from going to work. On the first day of the strike I may have a placard which simply states "Strike on here" but if people pass it I may have a placard carrying the word "Scab" on the second day.

If I find that goods are being delivered to the employer through the back gate and organise a picket involving a large number of people, not necessarily to climb up on the bonnet of the lorry or to touch the hub caps but rather to make it clear to the driver in a tactful way that we mean business and would not like the lorry to pass through the gate, will this constitute wilful obstruction and where will I stand if the employer decides to summon the forces of the law? If the Garda come to the conclusion that I am wilfully obstructing people from going to their place of work and a supplier from supplying blacked goods to the employer will they have the authority to say to people on the picket line that they have to move and, if they fail to move, to arrest them without warrant? Will we be then faced with the obscene situation which Britain faced in the early eighties where police on horseback waded through miners who were on strike under similar legislation?

I note that there is a saver, the reference "without lawful authority or reasonable excuse". Will the fact that people are on strike constitute lawful authority or reasonable excuse for displaying a sign or for shouting at scabs or attempting to block a lorry? Suppose it is not an industrial dispute but a protest of some kind. Suppose it is an anti-abortion protest. Suppose that at the protest the Peace Train organisation and New Consensus plan to organise outside the Sinn Féin Ard Fheis next week someone on the picket shouts "Murderer" at people going into the Ard Fheis and this is regarded as insulting or abusive by some member of Sinn Féin, could the Garda attempt to remove posters or arrest people or move them on?

I seek clarification on this issue because, when it was first proposed in the Bill to give the Garda the power to move people on, one could see where it fitted in and that it would apply in cases where the sensible thing to do would be to move people on. It is worrying that it is now being extended and will be able to be used in the way I have described. I would like to hear the Minister's comments on this matter.

Mr. Costello

We are going back over many of the arguments made when the Bill passed through the House originally. Extraordinary powers are being given to the authorities in sections 4 to 9, inclusive, to intrude into what would be described as normal run of the mill activities. The activities being covered include drunken behaviour, disorderly conduct, abusive and obscene language, threatening and insulting behaviour and loitering. In legislation in the past certain provisions relating to drunken behaviour and disorderly conduct were struck down as not being constitutionally sound. These sections have implications for the principle of free speech and freedom of assembly. It raises question marks as to whether they would withstand a constitutional challenge.

I await the Minister's response on these central issues, but we have to approach them in a delicate fashion. The Garda are being given extraordinary powers to control the conduct of various sections of the community as in the case of a protest or march organised by students or farmers. These groups may engage in robust behaviour to get their point of view across and may find themselves subjected to a range of penalties.

The Minister's amendment is desirable and marks an improvement, but it is unacceptable that drunken behaviour is to be criminalised under section 4. It will be an offence for any person to be present in a public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself. This could hardly be described as a criminal matter. It should not be a summary offence leading to conviction and a fine.

Under section 8 the first step is for the Garda to ask the person to desist or leave the scene. That is probably the best approach. Was there any suggestion in the Seanad that the word "or" should be substituted for the word "and" in section 8 (1) (b) (i)? It would seem that paragraphs (i) and (ii) are alternatives so that a person could be asked first, to desist and then, if necessary, to leave the scene.

Section 8 lays down the steps to be taken by the Garda, including asking a person to desist from undesirable activity, asking him to leave the scene, arresting the person, at which stage there is liability on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding six months or to both. Fines and sentences of imprisonment are already covered in sections 4, 5, 6, 7 and 9. Does that mean that the penalties specified in section 8 are in addition to those in the other sections and there could be a doubling of penalties? In one instance there is a fine of £100, in another a fine of £200 and in another a fine of £500 depending on the section. There is an instance of three months imprisonment and another of six months imprisonment. Finally, in section 8 there is provision for a fine of £500 or six months imprisonment or both. Are these separate sanctions to be added to what is contained already in the existing provisions? That question must be addressed.

Sections 6, 7 and 8 raise the issue of the right of people to assemble or to strongly express their views. Wilful obstruction seems open to almost any interpretation. Section 9 provides that any person who in any manner wilfully prevents or interrupts the free passage of any person or vehicle in a public place is liable to a fine. It is virtually impossible to take part in a public march in the streets of the city or anywhere else without in some way interrupting free passage of traffic and persons. The penalties and the manner in which they can be imposed are laid out in the Bill and if arrests can take place without warrant that means enormous power is being given to the Garda.

The proposed amendment is an improvement on the section and I am glad to see the extension of the provisions in sections 4, 5, 6 and 7 to section 9, because my interpretation of the Minister's intention is that instead of arresting a person there will be a process of asking a person to desist from undesirable behaviour and, if necessary, to leave the vicinity of the place concerned. That would allow members of the Garda to lower the level of emotion and avoid having to arrest somebody with the result that the full process of the law would have to be brought to bear. I would like some clarification from the Minister on those two points: the overlapping of penalties and how it is intended sections 4, 5, 6, 7 and 9, and now section 8, will operate. Will they operate in a phased way in terms of the level of seriousness of response by the Garda to incidents that might give rise to the type of behaviour mentioned in the sections?

Mr. M. McDowell

Deputy Costello's worry is reasonable in one sense; he is concerned that gardaí might be trigger happy and not go through a measured response to a situation in which they find themselves. However, in the last analysis, if 20 or 30 people are obstructing a road somebody must have the power to move them. The £200 penalty, provided for under section 9, would not be sufficient to keep the traffic running in the city if people decided to stage a sit down protest for any reason.

In order to invoke powers under section 8 a garda would have to specify that he is giving a direction under that section. It would not be sufficient for him to make the request in an informal way; he will have to make it clear that he is invoking his statutory power under the section before failing to comply could be deemed an offence. Under the Road Traffic Acts when a garda requires a specimen he must specify that he is invoking the law and relying on a statutory provision. An informal request will not be sufficient to ground a power of arrest. Once a garda invokes powers under section 8 people will realise that it is a formal request and that a refusal to comply can carry serious consequences.

Mrs. Geoghegan-Quinn

To answer Deputy McDowell's last point, the garda would give a warning under the relevant section of this Bill. I do not intend to refer to all the points raised because they were debated at great length here, at the Select Committee and on Committee and Report Stages in the Seanad. This debate began eight months ago and everyone in this House thought then that this Bill would become law by the autumn. Almost every elected representative who represents an urban area wrote to me in respect of this matter since I took up office as Minister for Justice. That highlights the pressure public representatives are under from the victims of public order disturbances to have this legislation enacted. Deputy Gilmore cited his experience in the past week. Of all the issues that have been raised with me in the past 12 months by members of residents associations, neighbourhood watch schemes, voluntary groups and delegations from various parts of the country, particularly urban areas, the main priority so far as my Department is concerned is public order legislation. I am sure all Members will agree that such legislation is a major priority for the public at large.

While people are naturally concerned about the powers given to members of the Garda, little recognition is given to the commonsense approach applied by the majority of gardaí in implementing our laws. No Minister or Garda Commissioner could guarantee that in a force of over 10,000 members there would not be an abuse of power at some stage during the lifetime of the force. The answer is not that we should not give powers to the Garda, but rather that an effective complaints procedure should be put in place. By and large, the Garda have not abused their power in the past. They have implemented the law by applying a commonsense approach. That is the road down which we must travel in regard to this legislation.

People have reservations about particular sections of the Bill. Both here and in the Seanad I have been open to suggestions and amendments. This amendment is the result of an amendment tabled by Deputy McDowell. The wording was not appropriate, but with his co-operation we came up with this solution. Members of both Houses have been responsible in their contributions to this legislation.

In relation to this amendment, none of us wants people who are legitimately on a picket or protesting about something to be subject to this law. However, citizens do not have an absolute right to prevent their fellow citizens from going about their business. I do not believe any of us would argue that that should be the case.

Section 9 deals with wilful obstruction, and some people have concerns in that regard. We are not creating any new offence in section 9. Section 13 (3) of the Summary Jurisdiction (Ireland) Act, 1851, deals with wilful obstruction. In section 9 of this Bill we are adding the words "without lawful authority or reasonable excuse", which Members agreed was necessary, and we are also increasing the penalty from 20 shillings to £200.

In relation to the displaying of placards and so on, subsection (1) states that one is committing an offence only when displaying a sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned. That inserts a valuable safeguard in the legislation and should answer many of the queries raised on that matter.

Deputy O'Donnell made a very valid point in relation to homeless young people. She was concerned that under this legislation gardaí might harass such young people who through no fault of their own have to live in such conditions. It is not intended that the powers given to gardaí under this legislation would cover such behaviour. In other words, the gardaí could not continually harass young homeless people. The legislation refers to unreasonable behaviour, signs and language, the intent of which is to provoke a breach of the peace. Our young homeless people are not on our streets with the intention of causing a breach of the peace.

I do not intend to repeat what I have already said on this section. People have been agitating for a long time for many of the provisions in this part of the legislation. Public order disturbance does not always take place in areas which people might regard as public places. For example, in urban areas it frequently takes place in large public green areas at the gable end of the last house in a housing estate. The gardaí who are called out to such disturbances on a regular basis have frequently been forced to explain to members of residents associations or concerned community people that they do not have powers to deal with such public order disturbances, that public order legislation is going through the Dáil and that as soon as it is enacted they will have such powers. I acknowledge that Members do not wish to delay the passage of this Bill because it will assist the Garda and, more importantly, will deal with the serious public disorder that takes place, particularly in urban areas. The victims of that type of public disorder are anxious to have this legislation enacted.

Mr. Gilmore

I detect a note of weariness in the Minister's response, but after eight months she is entitled to be weary. We are all anxious to see this legislation enacted, but it is not just a question of getting it through this House. We want legislation in place that will deal effectively with the problem of public disorder.

During the past week at least one newspaper report suggested that after the passage of this legislation the President may consult the Council of State and refer the legislation to the Supreme Court to test its constitutionality, as is her right. We were all anxious to have legislation in respect of the matrimonial home enacted. Legislation in that regard passed through the Houses of the Oireachtas but is not yet in place. We do not want provisions of this legislation to be found unconstitutional. Even if the President does not refer the Bill to the Supreme Court it is possible that a case may be taken privately to test its constitutionality given the concern expressed about this legislation and the sources of such concern. We are obliged to ensure that the measures we enact here stand up, otherwise the years of waiting for this legislation may be extended. The concern I raised in the context of the amendment was about the extension of the powers of the gardaí to public protests, industrial disputes, pickets, demonstrations and so on. The Minister stated in her reply that nobody would wish that people engaging in legitimate protests would be subject to the legislation, but that is not the position under the Bill. This amendment will allow the gardaí to order those engaged in a picket or a protest to move on. That goes too far. Having heard the Minister's reply I oppose her amendment. It will extend the Garda powers too far. The Bill was intended to deal with rowdiness, disturbances, intimidation and menancing behaviour so prevalent in urban areas which we all come across and have drawn to the Minister's attention. It is not, and should never have been, intended to deal with problems of public protest.

Another danger may arise in respect of this provision on which the Minister might reflect. It is not always the case that people who engage in public protest are quaking in their shoes in fear of arrest. In some cases people might like to be arrested. This country loves martyrs. The last industrial dispute which resulted in people being arrested was the famous ESB strike when the public outcry was so great that the protesters were sent home in taxis. If legislation provides that people who block a road can be asked by the gardaí to move on and if they do not they can be arrested, it could in some cases encourage a demonstration. I do not wish to labour a point that has been debated but I am concerned about the extension of the Garda powers in this area. I oppose the Minister's proposal to extend those powers.

Mr. Costello

I do not wish to labour the point. Nothing we say will alter the reservations we expressed earlier about intrusion into the behaviour of citizens. We agree with the purpose of the Bill but there is a question mark over the implementation of the proposed powers and their extent. Sections 4, 5, 6, 7 and 9 prescribe penalties which may include a fine and or a term of three to six months imprisonment. Section 8 sets out offences, namely, failure to desist and failure to leave the scene immediately which carry a £500 fine or a period of six months imprisonment. The other sections prescribe penalties, namely, the imposition of a fine of up to £500. Are the penalties prescribed replacement penalties or additional to those prescribed in the original provisions? That is important as the new penalties would add considerably to those listed in the Bill. Is a step-by-step procedure being introduced? I understood that was the case and that it would improve the legislation by providing that rather than arresting people without a warrant they would be requested to desist and leave the area. The Minister should clarify those points.

Mrs. Geoghegan-Quinn

This Bill does not differ from similar legislation, for example, if one is arrested for being in breach of a number of sections of the Road Traffic Act proceedings are taken against a person in relation to each section breached. Similarly, if one is arrested and charged with offences, under this Bill it will be a matter for the courts to decide whether the person is guilty under each of the sections and, if so, whether the full rigours of the law under each section should be applied. In that respect this Bill when enacted will not differ from existing Acts.

Ms O'Donnell

The Bill introduced a range of new offences and accompanying penalties. The Minister referred to applying the full rigours of the law by way of penalties. Are we only wasting our time introducing a range of new offences and penalties when the power the Minister has under section 23 of the Criminal Justice Act, 1951 remains and is over-used to reduce those fines? It is important to raise this matter when discussing fines and a new range of new offences.

Mr. G. Mitchell

We should discuss the stealing of my hubcaps, that would be more interesting.

Ms O'Donnell

Are we engaged in a futile exercise?

Acting Chairman

The Deputy's point is not relevant and we are anxious to make progress.

Ms O'Donnell

I accept that but this matter should be raised when we are discussing the imposition of fines. What is the point in introducing fines——

Acting Chairman

We are talking about a specific amendment.

Question put and declared carried.

Mrs. Geoghegan-Quinn

I move that the Committee agree with the Seanad in amendment No. 3:

SECTION 13.

In page 7, subsection (2), lines 3 to 5, deleted and the following subsections substituted:

"(2) (a) Where a member of the Garda Síochána finds a person in a place to which subsection (1) relates and suspects, with reasonable cause, that such person is or has been acting in a manner contrary to the provisions of that subsection, then the member may direct the person so suspected to do either or both of the following, that is to say:

(i) desist from acting in such a manner, and

(ii) leave immediately the vicinity of the place concerned in a peaceable or orderly manner.

(b) It shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by a member of the Garda Síochána under this section.

(3) (a) A person who is guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

(b) A person who is guilty of an offence under subsection (2) shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 6 months or to both.".

In our discussions on Report Stage the view was expressed that the definition of a "public place" was too narrow in the sense that it might not cover, for example, people entering a derelict building in a manner which causes difficulties for nearby residents. Deputies will recall that we had already substantially amended the definition of "public place" in the Bill to meet some of the concerns expressed. For example, Deputy Mitchell was concerned that the original definition might not be sufficient to cover public parks while closed and the amendment we made dealt with that and other areas, such as cemeteries.

Nevertheless, I undertook to look again at the definition while the Bill was before the Seanad. We have had lengthy discussions with the parliamentary draftsman and the Attorney General's office about this but we kept coming up against the difficulty that essentially any attempt to widen further the definition would carry with it the danger that virtually everywhere would become a public place. In the circumstances I directed that alternative approaches should be examined and it is in that context that I brought forward an amendment to section 13 in the Seanad.

As a practical matter the type of difficulty with derelict buildings, referred to at earlier Stages of the debate, should be met to a considerable extent by section 13 and the amendment I am now proposing to that section. Under section 13 it will be an offence for a person to trespass on any building or its surroundings in such a manner that causes or is likely to cause fear in others. The effect of amendment No. 3 will be to give the gardaí similar powers to those available in section 8 where they suspect a person is behaving contrary to section 13. In other words, where a gang of youths congregate in a derelict building in a manner which causes fear in local residents, the gardaí would have the power to direct the gang to leave. It would be an offence to fail to comply with such a direction and the gardaí in those circumstances would have a power of arrest without warrant. In many cases this would be a very practical approach to this type of problem and I hope the amendment is acceptable to the House.

Mr. G. Mitchell

The amendment improves the Bill. The Minister will recall that on Committee and Report Stages I raised the question of loitering with intent to steal vehicles. Leaving aside the rather light-hearted way in which I have outlined my own misfortune, which is only one of a series of misfortunes I have experienced, one of the big problems in the city is interference with other people's property. Considerable fear is instilled in people by criminals who gather on derelict sites. There is much observing and watching in a way that interferes with people's property. For example, in my constituency a lady in her eighties who lives on her own experiences great problems because outside her house is a Telecom Éireann box which is the assembly spot for characters in the area who sit there until all hours of the night playing loud music. On occasion it is the review stand for stolen cars which pass at all hours of the day and night. People should be respected and allowed to have a peaceful night's sleep. Telecom Éireann has not been particularly helpful in this matter, although having sent a letter to the chief executive some movement was made on it.

The Garda should be empowered to deal with people who interfere with other people's rights. People such as the lady I referred to are prisoners in their own homes. The legislation does not go far enough to deal with people who are loitering with intent to steal or interfere with vehicles — I raised this matter by way of amendment on Committee Stage. Some stolen vehicles are stored, sprayed and used in more serious crimes such as kidnapping or bank robberies. People are living behind shutters and alarms. People's property should be respected. The legislation does not go far enough to deal with vandalism, particularly of property such as cars. However, I support the amendment.

Mr. Costello

I, too, support the amendment. I am glad the Minister did not extend the provision in section 30 to cover vehicles — already covered under the legislation. The Bill extends the provision in regard to trespass on buildings to trespass on vehicles and the vicinity of vehicles. I am glad we are introducing the word "desist" from acting in such a manner. I would like to see that as a first step. The second optional step would be that the person would leave the vicinity and the third step would be to arrest and fine the person. It is too late to do anything about the options at this point.

Section 8 provides for an additional penalty. In this case the penalty for the offence is clearly stated whereas the previous amendment would create considerable confusion as there would be an overlap of penalties.

Question put and agreed to.

Amendments reported and agreed to.