Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Tuesday, 27 Jun 2006

Vol. 622 No. 3

Criminal Justice Bill 2004: Report Stage.

I move amendment No. 1:

In page 13, line 5, to delete "POWERS" and substitute "FUNCTIONS".

This is an amendment to the longest Long Title of a Bill I have seen in my time in the House, which is an indication of the amalgam of legislation that this Bill has become. It has grown like Topsy. Unfortunately, a great deal of that growth occurred on Committee Stage and much of the meat of the Bill has not had a proper Second Stage debate. With that in mind, I tabled this amendment to change the Long Title in so far as it related to the powers of the Garda Síochána to instead seek to mention the Garda's functions. The word "FUNCTIONS" is a broader term and covers both powers, as envisaged in the Bill as published, and duties.

I tabled the amendment to provide me with a brief opportunity to make the point that we need a fundamental review of the structure of the Garda Síochána and how it operates. Recently, I published a policy document on behalf of my party, in which I stated that we could examine a number of the fundamental changes that have occurred in policing in Northern Ireland, particularly the re-emphasis on democratising the police service and reconnecting it with communities. Some of these issues are being dealt with in respect of police liaison committees, local policing committees and so on, but there has been a fundamental alteration of the structure of the Garda Síochána to deal with policing from the bottom up.

The expert groups and specific task forces need to be in the face of the dangerous drug criminals who are unfortunately all too rampant across the country. In parallel, there is a need for a bottom-up approach to policing to reconnect all communities, be they alienated or others in rural or urban Ireland, to the police force. A properly functioning community policing system is important in that respect and it is a pity that we are not taking that step. Due to the 413 amendments with which we must deal and the two days in which to do so, I will not labour this point beyond putting down a marker, that is, many criminal law changes are envisaged in this very large enactment, which grew like Topsy in the course of Committee Stage.

I commend the Minister on his engagement with the Bill. To some extent, he listened to the views of the Opposition parties and was not dogmatic in respect of many of the proposals that, by and large, brought about consensus across these benches. There is another day's work ahead of us concerning the structural changes in the Garda Síochána envisaged by the word my amendment would insert, which would act as a hook.

I also wish to make a preliminary comment. The Bill has been significantly improved after 12 days on Committee Stage and I commend all involved, including the Minister, because there was a joint effort to try to get as good a Bill as possible. It concerns me that we are facing 413 amendments on Report Stage together with three further amendments given out to Deputies on a white slip of paper just now.

I have not seen those amendments. Where are they?

They are on their way.

While I was talking.

It is worrying that the detailed efforts made on Committee Stage to considerably expand and improve the Bill may be damaged by not allowing sufficient time for Report Stage. It is unprecedented to have hundreds of amendments on Report Stage. I will put down a marker, that is, this is not the right way to pass such comprehensive legislation. That said and on behalf of Fine Gael, I will do everything I can to ensure that the Bill is as good as we can make it in the limited time available.

I share Deputy Jim O'Keeffe's concern about Report Stage. The Green Party has no representative on the committee dealing with justice legislation. My colleague, Deputy Cuffe, who is our party's spokesperson in this area and will contribute later, has tabled approximately 25 of the 400 amendments before the House. The Green Party continues to be concerned about the overall thrust of this legislation and the intent of our amendments is to ameliorate some of the worst aspects of what is being proposed.

That said, I also agree with the Deputy that not only are approximately one quarter of the amendments in the name of the Minister — he would probably accept that some of them are owed to his taking on views that were expressed by a number of Opposition spokespersons on Committee Stage — but he is also making further contributions by changing his mind between Stages.

That is true.

Before the House are three additional amendments, but I hope this situation does not set the tone for what remains of the consideration of this Bill.

I am fundamentally opposed to the Bill and have tabled quite a number of amendments to it, some of which are to delete sections that are abhorrent. Other amendments owe to my being realistic in that I am not a member of the House's majority and, therefore, am unlikely to change the Minister's mind at this late stage.

A number of my amendments try to row back on the additional powers the Minister will grant to the Garda Síochána, powers that are not currently warranted despite the considerable level of anti-social behaviour and crime. Much of what is contained within the Bill is disproportionate and unnecessary. The extension of Garda powers without the safeguards or measures to ensure transparency or accountability is a step too far.

The Garda Síochána should be properly resourced and have the equipment to deal with crime under existing legislation, much of which has never been properly used. There is a need for targeted resourcing of the Garda Síochána, a reform of that body — this has not gone far enough to date — and a restructuring. In particular, there should be proper investment in communities. This Bill and its Long Title do not address what is required. A number of my amendments are intended to try to row back from the extremes suggested by the Minister in the Bill.

This legislation comprises ten different Bills and we should have dealt with the issues in that way, namely, separately. Many of the issues have no relationship with one another. As stand-alone Bills, we would have been able to deal with them and give them the proper time and consideration required. Along with others, I asked that such be done. However, it was not and we are left with a large Bill of more than 160 pages and on which we spent a great deal of time on Committee Stage in our attempts to persuade the Minister of the wrongs of his Bill and the rights of our amendments. Now we will do so again but there are more than 400 amendments, with another three arriving today. The Minister will probably produce another few tomorrow morning just to confuse us further. He is asking us to deal with a huge Bill in one and a half days.

I will only ask one question. Will the Minister indicate at this early stage of the debate which of the Opposition amendments he will take on board, so that we can cross them off our lists and avoid the huge preparation involved in tabling them? We can then concentrate on the amendments that are to be debated or on which there is disagreement, so that we can try to reach agreement.

I understand Deputy Howlin's purpose in tabling this amendment. It would be more appropriate to extend the functions and the powers than substitute one for the other.

I appreciate why Deputy Howlin tabled the amendment. I take the point that the Bill is very large. If I produced ten Bills, as Deputy Ó Snodaigh suggested, they would not be passed by this Dáil but would be for a future Dáil to consider.

Some of them would have been passed because we would have got through them quickly.

Perhaps one or two might have been passed but not ten.

We might be lucky to get one passed.

Is the Legislature not tedious?

The Legislature is not tedious and I enjoy the legislative function very much. I thank the Deputies, whatever their views on the individual provisions of the Bill, for the very detailed consideration they gave to them on all Stages in this House. The Heads of the Bill were circulated in advance, as were all the amendments, which were discussed in advance of their tabling on Committee Stage. I do not believe any Bill in recent times has been discussed and considered to a greater degree than this.

I have some sympathy with Deputy Howlin's point about the length of the Long Title but if titles are to be long then they are to be long.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 3 are related and may, by agreement, be discussed together.

I move amendment No. 2:

In page 14, between lines 9 and 10, to insert the following:

"(3) The coming into operation of Part 13 shall require the approval of both houses of the Oireactas, Oireachtas approval shall be requested only after a review of the implementation of the Children Act 2001 has been completed and laid before both houses 5 years after all sections of the 2001 Act become fully operational.”.

This amendment tries to ensure the Children Act 2001 is implemented. The Act was progressive and was passed with all-party agreement. It was the culmination of a long debate in the sector, which resulted in agreement that its provisions represented the way forward. However, until recently many of its provisions were not delivered upon and most had not even been activated. Now anti-social behaviour orders, ASBOs, are to be introduced, despite the fact that we had already agreed a mechanism to deal with child and youth justice issues. It is not that the existing procedure does not work but that it has never been tried and tested by being made operational. If something is not broken there is no need to fix it but the Act in question has not been implemented, whereby we could judge whether it was capable of working on its own. If it had been operational for the five years since it was passed in 2001 we could make the determination that it was broken and that it was incapable of solving the problems of anti-social behaviour in our communities, which prevents our citizens from enjoying the quality of life they deserve. The Bill proposes a regressive measure on top of legislation which already exists.

This amendment requires a review of the implementation of the Children Act 2001 before Part 13 of the Bill comes into operation. On Committee Stage I suggested the review period should be ten years. That might be too long so I have rowed back and now suggest five years, which is a reasonable time in which to determine whether the operation of the Children Act is successful. Provided it is fully funded, ASBOs for children should only be considered after its operation for five years. While Sinn Féin is fundamentally opposed to ASBOs, our amendment would ensure they would only be introduced with Oireachtas approval, after the review referred to.

The ASBOs provisions allow for the serious and open-ended curtailment of some of the most fundamental rights of individuals. They are disproportionate and it is well documented that the principles that underlie them are inconsistent with the European Convention on Human Rights and the UN Convention on the Rights of the Child. They may also be unnecessary as we already have a raft of legislation to deal with crime, which needs to be implemented. If the Children Act 2001 were implemented perhaps ASBOs would not be necessary.

We do not need more legislation but more resourcing and the implementation of existing provisions. ASBOs have been proven to fail in their stated purpose, namely to reduce anti-social behaviour, in other jurisdictions. Studies in Liverpool demonstrate that ASBOs extend the discriminatory powers of police without improving accountability. They provide for the naming and shaming and the criminalisation of young people, the fast-tracking of young people into prison and the undermining of due process by allowing hearsay evidence. The Minister has not produced any evidence to show that ASBOs actually work. We were lobbied heavily by a number of organisations that work with children or have human rights viewpoints, such as the Irish Youth Justice Alliance, the Human Rights Committee and the ICCL, which all raised major concerns about these retrograde steps. The Irish Youth Justice Alliance, a coalition of organisations and individuals who work towards reforming the juvenile justice system, outlined key problems with anti-social behaviour orders and their adoption by our society. Those issues included the fact that ASBOs involved the imposition of penal sanctions for the breach of an order made in civil proceedings, in which regard they were inconsistent with the European Convention on Human Rights. The conditions imposed by ASBOs may involve disproportionate interference with personal and private rights and civil liberties. Breach of an ASBO is a criminal offence but because an ASBO is a civil order the rules of evidence are reduced and the burden of proof is on the balance of probabilities, rather than beyond reasonable doubt. This constitutes the denial of the right to a fair trial. As regards criminal proceedings against children in particular, the normal safeguards should be augmented, not diminished.

I have gone through many of the arguments and presentations that have been made at committee meetings by such groups. They hold firm even after the Minister mellowed somewhat concerning anti-social behaviour orders for children and introduced some amendments. I am still of the opinion that we should not proceed down this route. That is why I request that, at the very least, we should introduce this review mechanism for the Children Act after five years of operation. Obviously, it must be fully resourced and implemented.

My point of view is very different from that of Sinn Féin. I believe there is a serious need for many of the provisions of this Bill and my concern is that there should not be any delay in implementing its provisions. I see Part 13 and the reference to the Children Act 2001 as a separate issue. I am in favour of the full implementation of the Children Act but I am concerned by the delay involved. I want both measures to be implemented at the earliest possible date and, therefore, I speak from a different perspective to that of Deputy Ó Snodaigh. I want the House, the Minister and the Government to be clear that Fine Gael sees a great need for many of the Bill's provisions to be implemented as quickly as possible. That is one of the reasons we were prepared to devote so much time to getting it through before the summer recess. The basis for my proposal is that there should not be any undue delay in the implementation of the Bill.

Having listened to Deputy Ó Snodaigh, I wish to put the record straight. If one looks at Part 13 and section 159 in particular, it is not a draconian measure for children. I have discussed it with a number of groups and have gone thorough it in detail. People were wound up about its consequences but their fears were allayed when they were taken through the measure step by step. It is not draconian and, in fact, some of those who advocated ASBOs regarded it as too weak a measure regarding children. In my judgment, however, I think the balance is now right. I greatly welcome the separation of adult's and children's ASBOs. Like Deputy Jim O'Keeffe, I strongly support the full implementation of the Children Act 2001 as well as its full resourcing, which is equally important.

Looking at the details, it would be of great assistance to a child embarking on anti-social behaviour if the pathway to serious crime were forestalled through the implementation of the new section 257C of the Children Act. It requires a senior Garda to convene a meeting. It also requires those who have charge of the child, parents or guardians, to be apprised of the situation and for them to hold some responsibility for the child's behaviour. The reasonable procedure set out in that and subsequent sections in Part 13 can have a positive effect on behaviour if properly implemented.

There is always a debate about whether involving the Garda with children is a good thing. In some instances, however, it is required. I have listened at first hand to the testimony of vulnerable people who are under siege in communities. Deputy Ó Snodaigh in particular is aware of these communities. Such people's quality of life is miserable because of the mindless actions of a few thugs. We must provide relief for such vulnerable people. This model might work and I support it for that reason.

Various views have been expressed on the question of ASBOs. It must be accepted that the children's ASBO is a much different animal from what was proposed when the Bill was initiated.

There is still an argument to be made about the philosophy of the ASBO — whether it is a useful measure or whether, as some of us believe, it is likely to prove counterproductive. The idea has been borrowed from the United Kingdom, although the Minister argues that his application of the concept will be markedly different from what has occurred in the UK. We can learn wider lessons from the experience of the production and application of criminal legislation in the United Kingdom. Since the New Labour Government was elected there in 1997 — it has been in office for the same length of time as the Fianna Fáil-Progressive Democrats Government in this country — it has introduced 40 separate criminal justice Bills.

We have produced 47 in one.

We seem to be going down a similar road. When one comes to versions 38, 39 and 40, one is writing new versions of the law that contradict those introduced in previous Criminal Justice Bills. The Minister seems to want to do this in the one Bill during the three Stages we are having in this House. I caution, however, that we should take the UK's lessons on board and not go for novel concepts. We should learn from the real experience that ASBOs have not worked in the United Kingdom.

Deputy Ó Snodaigh's argument is self-evident. We have agreed legislation, the Children Act, that addresses juvenile justice issues in a much more effective manner, but the Government has chosen not to implement or resource it. Instead, it has chosen, through the vehicle of this Bill, to introduce measures that will be counterproductive. On these grounds, Deputy Ó Snodaigh's amendment is quite worthy and should be supported, although I do not believe the Minister is likely to share that view.

I will deal with Deputy Jim O'Keeffe's point first. As regards the implementation of this Bill, it is my intention to do what I did with the Garda Síochána Act last year, that is, set up some form of implementation monitoring group so that it does not gather dust. All steps must be taken as quickly as possible to ensure the legislation is brought into operation in its entirety. I am conscious that it is one thing to pass a Bill and enact it into law, but another matter to get all the provisions of that law up and running.

The suggestion was made that this is the only Criminal Justice Bill the Government has produced in ten years, but that is not so. Off the top of my head, I do not have a complete category but there have been plenty.

There have been Criminal Justice Bills concerning public order, insanity and many other issues. Therefore, it is not as if this was just a one-off, mammoth Bill which substitutes for the absence of any other legislation.

I wish to respond to remarks made earlier in the debate about the three amendments, which are entirely typographical and grammatical and have no substantive meaning. It is our duty, as we have been warned recently by the Chief Justice, to do our best and to ensure what we do is done to the highest standard. If my officials see grammatical or typographical mistakes, it would be strange if they would leave them in the Bill.

Deputy Ó Snodaigh has yet again repeated a proposition with which I do not agree, that is, that ASBOs somehow criminalise people on a civil standard of proof. That is not so. ASBOs will be made in very restricted circumstances on a civil standard of proof. If anybody is ever prosecuted for breaching them, they will be prosecuted on the criminal standard of proof. A person will not be convicted of breaching an ASBO or criminalised unless it has been proven beyond all reasonable doubt that the person has breached an ASBO made in regard to him or her. If there is any ambiguity in regard to the ASBO or to the facts of the matter, the benefit of the doubt will go to the accused person.

I pay tribute to the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan. The decision to separate ASBOs for adults and children was a good one and I am happy to acknowledge in the House that he was the author of that idea. The Minister of State has, first, put considerable work into getting the Children Act further implemented and taking all the necessary steps to ensure it can be implemented. Some amendment of the Act was required to facilitate its implementation. Second, he has crafted what I consider to be a child oriented, family oriented and parenting oriented approach to behaviour orders in regard to children, which my original proposals did not include. To be fair, the Minister of State has produced good legislation.

We should implement the Children Act. I attended a probation service re-launch yesterday. I have no doubt that all of the pieces are now falling into place for a rapid implementation of the entire Act. This provision will enhance that Act rather than detract from it. I genuinely believe the course we are taking is the correct one.

It will come as no surprise that I do not agree with the Minister on this occasion. While his definition of anti-social behaviour orders is a marginal improvement on that used by the British, many core problems remain and it is still too vague. I welcome that the two aspects were separated, although I oppose the concept of ASBOs.

The section treats the alleged behaviour as if it were a proven fact rather than an allegation. While there are provisions for a meeting of the child and others with the Garda superintendent where the superintendent is satisfied that the child behaved in an anti-social manner, there is no stated provision dealing with a situation where the superintendent is not satisfied the child behaved in such a manner and that the behaviour order administered by the Garda would have to be revoked.

Many practical difficulties with this section have not been properly teased out. There are no provisions to monitor the gardaí administering these warnings or for steps to be taken against gardaí who abuse their power and administer the warnings on false grounds. This is necessary in the interests of the child as well as in the interests of the Garda Síochána and public confidence.

A question which has not been addressed and probably will not be is whether the new volunteers in the Garda reserve have the power to issue such warnings——

——and the implications of that. I will not delay the House because we will probably come back to this issue on discussion of later amendments when I will address some of the practical problems involved. This issue is one of my major objections to the Bill and why I specifically want this section struck from the Bill. Given that I do not have the support of the House, which is clear from the Labour Party and Fine Gael endorsement of the Minister's approach to child ASBOs, I table this amendment to try to delay it until such time as the Children Act becomes operational. If the Children Act is not fully operational and fully resourced, the ASBOs will come into effect rapidly.

The Minister has stated he is setting up a special task force to ensure that this Bill will be implemented in full. We did not see the same approach or urgency with regard to the delivery of the Children Act and all entailed in it. Even at this stage, I ask that the Minister reconsider and endorse amendment No. 2. It does not prevent his desire from coming to fruition. It simply prevents the section from being implemented without the full operation and review of the Children Act over a five-year period.

I am glad the Minister has announced he intends to set up an implementation group to help make the Bill operational as soon as possible, which is a wise course of action. On that basis, I will not press my amendment. I hope the implementation group will be put in place as quickly as possible and that it will be given a reasoned timeframe to complete its work so we can, in effect, see the provisions of this Bill in operation immediately.

Some provisions of the Bill are urgent, namely, those following from the Dylan Creaven decision in regard to search warrants and issues of that kind. The Minister might be selective in areas where there is a clear need for urgent action. He should be prepared to take that action without waiting for the views of the implementation group.

Is Deputy Ó Snodaigh pressing his amendment?

Has the Minister a reply to my question on the Garda reserve?

As is clear from the Garda Síochána Act, volunteer reserve members of the force will only have such powers as are conferred on them by the Commissioner. As I indicated to the committee last week, the powers conferred on the reservists at this point are those set out in the discussion document which was before that committee. They do not, at this stage, involve the issuance of warnings under the legislation.

Only a senior Garda officer can apply to a court for an ASBO. No volunteer reservist can be appointed to any rank other than reserve Garda rank.

The Government's proposals run counter to the central logic of the Children Act, which is regarded as setting a framework for a modern and progressive youth justice system reflecting best international practice. It took 30 years to produce that Act. This Bill is setting back the Act and undermining its central tenet. At this stage, we should not adopt any provisions which will undermine an Act which took so long to produce.

It would be popular in the community I represent and communities throughout the country to declare that we have the solution to anti-social behaviour and the problem of young thugs hanging around street corners. However, this is not the solution and it will not work. It runs counter to the direction we, as a society, wish to take.

I will be proven right in time, which is why I want a five-year period in which to prove that the Children Act, when fully resourced and implemented, will address the needs for which communities are crying out. These needs include fully resourced gardaí on the streets and responding to crimes in communities rather than providing a delayed response or signing passport forms, issuing dog licences and checking insurance details in Garda stations. Gardaí are fully trained and should be on the streets dealing with this issue and rebuilding community confidence. Communities that do not trust the Garda will have the proposed provisions, rather than the enlightened provisions of the Children Act, imposed on them, despite the fact that the latter would encourage greater co-operation from all sections of society with efforts to address social problems.

As we become more materialistic and both parents are forced into employment to try to create a quality of life for their families, children and the activities in which they engage are sometimes ignored, children's concerns are not addressed, people turn their backs on communities, and the spirit of volunteerism, which would allow society to address many of these issues, diminishes. The Government, in its approach, is failing communities, setting down a bad marker for the future of child justice and establishing a precedent which will exacerbate problems in this area and increase anti-social behaviour in communities. This provision will not improve the quality of life in the areas most affected by anti-social behaviour.

Amendment put.
The Dáil divided: Tá, 12; Níl, 111.

  • Boyle, Dan.
  • Cowley, Jerry.
  • Ferris, Martin.
  • Gormley, John.
  • Gregory, Tony.
  • Healy, Seamus.
  • Higgins, Joe.
  • McGrath, Finian.
  • Morgan, Arthur.
  • Murphy, Catherine.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.


  • Ahern, Bertie.
  • Ahern, Michael.
  • Ahern, Noel.
  • Allen, Bernard.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Broughan, Thomas P.
  • Browne, John.
  • Bruton, Richard.
  • Burton, Joan.
  • Callanan, Joe.
  • Callely, Ivor.
  • Carey, Pat.
  • Carty, John.
  • Collins, Michael.
  • Connolly, Paudge.
  • Cooper-Flynn, Beverley.
  • Costello, Joe.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Crawford, Seymour.
  • Cullen, Martin.
  • Curran, John.
  • de Valera, Síle.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Dennehy, John.
  • Devins, Jimmy.
  • Durkan, Bernard J.
  • Ellis, John.
  • English, Damien.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Grealish, Noel.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Kenny, Enda.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McCormack, Padraic.
  • McDowell, Michael.
  • McEllistrim, Thomas.
  • McGinley, Dinny.
  • McGuinness, John.
  • McHugh, Paddy.
  • Mitchell, Olivia.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Murphy, Gerard.
  • Naughten, Denis.
  • Neville, Dan.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Dowd, Fergus.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Keeffe, Jim.
  • O’Keeffe, Ned.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Parlon, Tom.
  • Pattison, Seamus.
  • Penrose, Willie.
  • Power, Peter.
  • Power, Seán.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Ryan, Seán.
  • Sexton, Mae.
  • Sherlock, Joe.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Smith, Michael.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Upton, Mary.
  • Wall, Jack.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
  • Woods, Michael.
Tellers: Tá, Deputies Ó Snodaigh and Boyle; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.
Amendment No. 3 not moved.

I move amendment No. 4:

In page 14, lines 11 and 12, to delete "the Garda Síochána" and substitute "An Garda Síochána".

Ba mhaith liom an leasú seo a chur chun cinn. Ar Chéim an Choiste, chuir an Teachta Ó Cuív an leasú seo chun cinn. Bhí sé i gceist agam féin déileáil le gach áit a bhfuil "the Garda Síochána" ainmnithe sa Bhille seo ionas go n-athrófar é go "An Garda Síochána", ach amháin nach raibh mórán ama agam.

Is pointe é seo a d'ardaigh mé agus muid ag déileáil le Bille an Gharda Síochána 2004, atá achtaithe anois. Is é teideal na heagraíochta ná "An Garda Síochána", agus níl aon ghá é sin a athrú. Tá an "the" mícheart. Níl mé chun am na Dála a úsáid chun é seo a phlé agus a athphlé. Tá sé pléite, agus tá tacaíocht agam an uair seo nach raibh agam ag amantaí eile nuair a d'ardaigh mé ceist na Gaeilge agus teidil eagras, eagrais Stáit ach go háirithe, maidir leis an traidisiún ó thaobh na teanga náisiúnta de gurb í an Ghaeilge a fhaigheann tús áite. Ba chóir go mbeadh an leagan Gaeilge de theidil na n-eagras in úsáid, mar sin an leagan agus an teideal dleathach.

Nuair a bhí an tAire ag caint ar na trí leasú breise a thug sé isteach inniu, luaigh sé gur leasuithe teicniúla iad. Tá an ceart aige, ach is leasú teicniúil é seo chomh maith. Ba chóir dúinn an deis a thapú an uair seo glacadh leis seo agus an t-ainm a leasú tríd síos nuair atáimid ag déileáil leis an Bhille sula rachaidh sé go dtí an Seanad. Amach anseo, aon áit a dtagann "the Garda Síochána" chun cinn, agus muid ag déileáil le haon Bhille eile nó á leasú, ba cheart an leagan ceart a úsáid.

Tá mé buíoch den Teachta as an méid atá ráite aige. Phléigh muid an t-ábhar seo anuraidh le linn na díospóireachta ar an Garda Síochána Bill. Ní aontaím leis an Teachta. Ar leathanach 14 den Bhille, "be it enacted by the Oireachtas as follows", ní bhainimid úsáid as an réamhfhocal "an" sa chomhthéacs sin. Ceist stíle atá ann ach tá mé sásta leis an téacs mar atá.

I proposed several amendments on Committee Stage in respect of the name and eventually came to the view that they would not be accepted and did not see much point in pushing it further. There is a case to be made but at this stage it will not be accepted and we should move on to more serious aspects of the Bill.

Tá ábhair níos tábhachtaí le teacht ach níl sé soiléir dom ón méid atá ráite ag an Aire conas nach mbeidh "An Garda Síochána", an teideal oifigiúil atá ar na gardaí, oiriúnach le dul isteach sa Bhille. Dúirt sé gur ceist stíle í. Stíl an Aire féin nó stíl na Ranna? Cén fáth nach bhfuil an teideal oifigiúil ar an fhórsa, "An Garda Síochána" úsáidte againne sa Bhille seo agus mar ghnáth-theideal ar An Gharda Síochána i rith na díospóireachta?

Níl stíl phearsanta i gceist. Sa Garda Síochána Act 1925, úsáidtear "the Garda Síochána" agus dúirt an Teachta O'Keeffe faoi sin that if it is alright for Kevin O'Higgins, it is alright for him.

Ní chaithfidh mé níos mó ama ar an ábhar seo ach toisc go ndearna botún i 1925 níor chóir dúinn leanúint ar aghaidh leis an bhotún céanna. Toisc nach bhfuil an tAire sásta glacadh leis seo, tarraingeoidh mé siar an leasú.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 14, between lines 20 and 21, to insert the following:

"(6) The collective citation "the Misuse of Drugs Acts 1977 to 2006" shall include Part II (other than section 7) of the Criminal Justice Act 1999 and Part 8(other than section 86) and those Acts and those Parts (other than the sections specified) shall be construed together as one.”.

This is a brief citation amendment to include "the Misuse of Drugs Acts 1977 to 2006" as a collective citation for the Misuse of Drugs Acts as they are now, together with the relevant portion of this Act for ease of reference and so that the terms in the various provisions should be construed in the same context.

Amendment agreed to.

Amendments Nos. 6, 46 and 409 are related and will be taken together by agreement.

I move amendment No. 6:

In page 14, line 37, after "prescribed" to insert the following:

"in doing so the Minister shall have regard to the provisions contained in Schedule 1, human rights standards and international evidence indicating the likely effectiveness and social and economic costs of all potential regulations”.

The purpose of this amendment is to place a binding requirement on the Minister to ensure that any regulation he considers producing under this Act is based on the best available evidence and is human rights compliant. There has recently been a history of abuse of many of the powers of the Garda Síochána by certain elements within the force. It is therefore important that when dealing with legislation giving the Garda Síochána additional powers we ensure at the earliest stage of making regulations that they are based on proper evidence and standards rather than that they are produced and disappear. Regulations should comply with the principles of human rights.

The Minister produces many of the regulations and he is therefore not obliged to seek the opinion of the Human Rights Commission on the regulations. This is a way of bypassing proper scrutiny.

Amendments Nos. 46 and 409 relate to section 14 which allows for the taking of bodily samples, a topic to which we will return later. I want to ensure that proper safeguards are in place. I have listed these in amendment No. 409. They already exist, for example in the Criminal Justice (Forensic Evidence) Act 1990. The amendment brings this part of the Bill into line with existing legislation. This was in line with what the Human Rights Commission said when it raised concerns about the proposal.

The legislation allows the Minister to make regulations regarding the taking of samples along the lines recommended by the Human Rights Commission. It would be preferable to have any such safeguards written into primary legislation so that they would not be applied at ministerial discretion or changed without any legislative oversight. There should not be any major problems with this amendment, given that I propose a direct quotation. The inclusion of comprehensive guidelines is aimed at safeguarding the individual, who is subject to these forensic procedures and the members of the Garda Síochána who administer them to prevent wrongful accusations being made against them.

B'fhéidir go bhfuil an Teachta ag déanamh dearmaid. Tá sé mar dhualgas orm an Bunreacht agus an European Convention on Human Rights a leanúint má tá mé ag déanamh regulations faoin Acht seo. Dá bhrí sin, níl mé in ann na leasuithe a ghlacadh.

Tuigim cad atá an tAire a rá ach ní thuigim cén fáth nach féidir. Cuireann na leasuithe seo coinníollacha atá ann cheana féin in Achtanna eile i bhfeidhm sa chuid seo den Acht. Bheadh sé simplí agus ní bheadh air bheith buartha faoin convention nó faoin Bhunreacht mar bheadh sé san Acht agus bheadh sé bunreachtúil ach amháin dá mbuafadh duine éigin ar an Acht i gcás cúirte amach anseo. Níl i gceist ach go bhfuil mé ag lorg go mbeidh seasamh níos daingne maidir leis na cionníollacha ina dtarlaíonn sé seo. Ba chóir go mbeimid in ann a rá ar a laghad go bhfuil siad ann. Tá siúl agam nach mbeidh Aire ag teacht amach anseo chun leasuithe a dhéanamh ar na cionníollacha sin as a stuaim féin, chun dlíthe nó rialacháin a thógáil isteach nach mbeidh de réir an mhéid atá ráite agam anseo, nó chun teacht salach ar pé rialacháin a mbeidh an tAire tar éis teacht suas leo amach anseo.

Amendment put and declared lost.

As amendments Nos. 48, 56 and 206 are related to amendment No. 7, they may be discussed together, by agreement.

I move amendment No. 7:

In page 14, to delete lines 38 to 40 and in page 15, to delete lines 1 to 4 and substitute the following:

"(2) Every regulation under this section shall require the approval of both Houses of the Oireachtas.".

Tá mo thrí leasú beagáinín bainteach leis an rud a bhí á rá againn roimhe seo. Ba mhaith liom a dhéanamh cinnte nach mbeidh Aire ann amach anseo a bheidh ag mí-úsáid na cumhachta atáimid le bronnadh air sa mBille seo. Beidh air aon rialacháin nó a leithéid a thógaint os comhair Thithe an Oireachtais. Measaim go bhfuil sé seo réasúnta. Tá sé ceart go dtagann rudaí ón Aontas Eorpach os comhair an Tí seo gach lá. Measaim go bhfuil sé ceart, i gcás córas dlí ach go háirithe, go mbeidh na rialacháin seo ag teacht os comhair Thithe an Oireachtais. Níl mé ag lorg go mbeidh plé iomlán i gceist gach uair, ach go mbeidh an Teach ag déileáil leo i mbealach amháin nó bealach eile. Má tá siad foirfe, beidh an Teach sásta tacaíocht iomlán a thabhairt don Aire sna cásanna úd.

Ba chóir go mbeidh plé ann i gcónaí nuair atáimid ag cur coinníollacha no rialacháin i bhfeidhm, ar eagla go mbeidís ag teacht salach ar chearta daonna an phobail, nó ar chearta aonair. Mar sin, ba chóir go dtiocfadh rudaí den sórt sin os comhair an Tí chun gur féidir linn a rá go bhfuil an ceart ag an Aire a leithéid de rialacháin a dhéanamh. Tá rudaí eile a thagann os comhair an Tí ar bhonn rialta toisc go bhfuil siad ag teacht salach nó go bhfuil rud éigin ó thaobh cearta daonna de i gceist. Measaim, i gcás na rialachán atá luaite agam sna trí leasú seo, gur chóir go mbeimis ag teacht ar ais os comhair Thithe an Oireachtais chun a rá go bhfuilimid, mar Pharlaimint, sásta tacú leis an Aire, nó gan tacú leis. Má fheictear go bhfuil fadhb ann — is í seo an áit inar chóir go mbeimis ag aithint go bhfuil fadhbanna ann — ba cheart gur féidir linn iarraidh ar an Aire leasú a dhéanamh ar na rialacháin sin.

Is cúis bhróin é dom arís nach bhfuil mé in ann aontú leis an Teachta.

I am sure it is a "cúis bhróin" for the Minister.

Níl am gan teorann ar fáil don Teach seo. Ní shílimse go mbeadh comhaltaí an choiste dlí agus cirt i bhfábhar dualgas a bheith orthu gach rialachán a phlé, mar atá molta ag an Teachta.

Ba mhaith liom focal nó dhó a rá ar an ábhar seo. Ní aontaím leis an méid deireanach atá ráite ag an Aire. A significant amount of legislation is now introduced by means of secondary legislation. When I first became a Member of the House many moons ago, there was an all-party committee on secondary legislation. I think the courts have examined this matter. Enabling legislation that has been debated and been the subject of great scrutiny in this House is often vastly outweighed by the authority divested by this House, which is the constitutional body for making law, to a Minister who makes secondary legislation by means of statutory instrument.

We are talking about the possibly vast extent of the regulations to be made under this legislation. As a member of the Houses of the Oireachtas Commission, I am very conscious of the generality of oversight and scrutiny. The Minister has rightly stated nach bhfuil go leor ama ná airgid ag na Teachtaí, ná na coistí atá ag obair sa Teach seo agus sa Seanad, chun an jab a dhéanamh go rí-mhaith. We have to consider the issue of resources if we are to provide the proper democratic scrutiny of secondary legislation. The Minister often rightly says that the Joint Committee on Justice, Equality, Defence and Women's Rights would not be too pleased to be given a certain job. A hugely voluminous and demanding amount of secondary legislation is coming from the EU by means of instrument and we have to organise this democratic House to cope with such legislation, rather than reduce the level of scrutiny we give to it.

While I support the argument that it would not be possible under the current structures to scrutinise properly all the regulations setting out secondary legislation — such regulations can have a basic effect on the actual legislation that is passed by the Dáil — I agree with Deputy Howlin that there should be some system whereby Deputies who are concerned about particular issues or the impact of certain regulations on the original legislation can bring such matters to the floor of the House so they can be teased out and debated properly.

I agree with the previous speakers that the amount of legislation that comes before the House on a regular basis is becoming more voluminous and that the precise mechanisms which have been mentioned are needed as a result. If it is not possible to provide for regular votes on such matters in both Houses of the Oireachtas, we should put in place mechanisms such as the use of the appropriate Oireachtas committee or the introduction, where necessary, of sunset clauses when various sets of regulations are being applied. Given that we are introducing a Bill of this size, which allows so many regulations to be brought into being, it is regrettable that we have not spoken until this late stage about the need for such mechanisms and about the probability that such mechanisms will not be brought into use for this Bill.

Ba mhaith liom críochnú air seo. Tá mé mar bhall den choiste Eorpach. Deineadh sórt cáineadh beag orm sa Teach seo toisc nár fhreastail mé ar an oiread sin cruinnithe den choiste, ach ní raibh mé in ann a bheith i láthair mar go raibh mé ag an choiste dlí agus cirt agus ag glacadh páirte i ngach rud eile a théann leis an gcoiste sin. Ní féidir an dá thrá a fhreastal. Aontaím leis an Aire nach mbíonn go leor ama againn go minic. Dhein an coiste eile ina bhfuil mé mar bhall déileáil le 400 píosa de dhlíthe na hEorpa cuíosach gasta. Chuaigh an coiste ar aghaidh, ceart go leor, ach bhí sé in ann déileáil leis an European scrutiny sub-committee, atá ina fho-choiste den choiste. Is féidir déileáil leis. Muna bhfuil aon fhadhb mhór leis na rialacháin, ní chuirfear aon mhoill orthu sa Teach. Níl sé i gceist go mbeidh díospóireacht ó thús i gcónaí, ach go mbeidh duine éigin in ann ceist a ardú agus go mbeidh an tAire in ann a rá "is é seo an fáth go bhfuil an chuid sin den rialachán ag seasamh" agus "is é seo an fáth go bhfuil sé sin ann". Ar a laghad, beidh ar an Aire teacht os comhair an Tí; beidh sé freagrach do Thithe an Oireachtais faoi na rialacháin. Níl sé freagrach faoi láthair, mar deir sé "a chinneadh féin", toisc go bhfuil muid ag cur i reachtaíocht go bhfuil an cead sin aige. Ba chóir go mbeadh deis againn i gcónaí féachaint cad é atá ar bun. Níl muid á rá go mbeadh díospóireacht mhór sa Teach seo faoi chulaith éadaigh na ngardaí agus an dath uirthi——

Nó balaclava dubh.

——ach thiocfadh sé os comhair an Tí agus bheadh daoine in ann a rá nach bhfuil fadhb acu leis sin ag dul tríd.

I gcásanna eile, ba chóir dúinn féachaint ar a leithéid. Sna cásanna seo, an rud atá i gceist ná go mbeadh na rialacháin i gceist tábhachtach maidir leo siúd atá ag teacht os comhair an chórais dlí. Ba chóir go mbeadh siad chomh foirfe agus is féidir sa tslí nach mbeadh seans go mbeadh daoine in ann teacht timpeall orthu toisc nár dhírigh muidne orthu i gceart sa Teach seo agus ag déanamh cinnte go raibh siad foirfe nó go raibh an Teach seo tar éis a thacaíocht iomlán a thabhairt do na rialacháin sin.

Tarraingeoidh mé siar na leasuithe mar níl cuma ar an scéal go bhfuil an tAire sásta glacadh leo.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 15, between lines 9 and 10, to insert the following:

5.—(1) Where a person is the subject of an unexecuted warrant for his or her arrest, it shall be lawful notwithstanding anything in the Data Protection Acts 1988 to 2003 for a member of the Garda Síochána to require any data processor (whether in the public or private sector) to communicate with the member any information relevant to the person for the purposes of apprehending the person, or to notify the member or another member when the person interacts with the data processor, or both.

(2) In this section "bench warrant" includes any instrument, warrant or order requiring a person to surrender to a court, prison or member of the Garda Síochána.".

This amendment arises from Committee Stage. I am conscious that, in the timeframe available between Committee and Report Stage, I did not have an opportunity to reshape the amendment. It is really the principle I want included in the Bill. It has been raised with me by several sources that an individual can escape arrest when a legitimate warrant has been issued for him or her, even though the individual is receiving a State benefit which in turn means his or her whereabouts are on a State computer system. For example, an individual could be signing on at the local dole office and be on the social welfare record. Anyone interacting with social welfare records could find his or her whereabouts. Despite this, that information is not automatically available to the Garda Síochána for the execution of a warrant.

I am aware from the Committee Stage debate of the downside and difficulties of such a provision. I detected from the Minister on Committee Stage that he accepted there was a kernel of an idea in the amendment. I had hoped he would have tabled his own Report Stage amendment on this matter.

It will be a cause of concern for people that individuals on the social welfare register for receiving State payments are not amenable to law enforcement when there are legitimate warrants for them for what can be sometimes serious offences. This week I was alerted to two such cases, one in which a serious offence had been committed. An outstanding warrant was not detected in that case. Better joined-up thinking is needed on this matter.

People concern themselves with a Big Brother scenario when computer systems are interrelated. I accept safeguards must be maintained in such matters. However, we can improve law enforcement and tip the balance more firmly on the side of the execution of warrants. The Minister would have strong public support for this provision without trampling on the individual's right to privacy or the intention that underscores the Data Protection Act — that people's private information is their own and information gathered can openly be used for the purpose for which it is gathered. In serious criminal offences, such as robbery, violence, sexual assault and murder, whatever is required to identify those individuals responsible should be at the disposal of the Garda Síochána.

The public would find it difficult to believe that all State resources are not at the disposal of the Garda Síochána when it issues a warrant, especially one relating to serious criminal offences. It would be inexcusable if these resources were not at the disposal of the force at that stage. Will the Minister decide on how serious a crime must be before such a situation would arise? Despite the problems experienced with departmental computers, many of them work and may be of assistance to the Garda Síochána.

A similar amendment was discussed on Committee Stage but several problems were attached to it. While I appreciate Deputy Howlin did not have the opportunity to refine his thinking on the matter, I accept his motivation in tabling this amendment. The Data Protection Act 1988 and Data Protection (Amendment) Act 2003 make specific provision on the sharing of information for the purposes of a criminal investigation. If an individual is wanted for an offence and a warrant has been issued, there is no problem with the Garda requesting a State agency on the whereabouts of that person.

Is that ever done?

I presume it is. If the Garda was attempting to find where I was, it would go through the usual channels.

I think it would know that.

It would have to consult one of its members. I do not believe there is a problem in the area of information sharing. I agree with the Deputy that a problem exists with unexecuted warrants. However, it is not related to whether people are signing on the dole. If the Garda wanted to know where a person was signing on, it could find it out. I will examine the principle in the context of the forthcoming criminal law miscellaneous provisions Bill and consider if it is necessary to provide for the sharing of information and qualifying the protections of the Data Protection Acts to achieve that end.

I am grateful to the Minister because that is a sensible way to proceed. I accept the amendment, as crafted, is too broad and crude an instrument and would have implications I do not want. I should have re-read the Data Protection Acts but I am not aware of those provisions being used, even for serious offences. It may be interesting for the Minister to inquire whether the Garda routinely requests information from the social welfare authorities, or other State agencies, to identify an individual who may pose a particular danger to the public and for whom an outstanding warrant exists.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 15, between lines 9 and 10, to insert the following:

"5.—Notwithstanding any enactment, provision may be made by rules of court that a warrant issued by a judge of any Court for the arrest of a person shall continue in force until executed or cancelled by the judge or another judge.".

This amendment was also discussed on Committee Stage. I re-tabled it because there is an issue about how to deal with unexecuted warrants. I understand a large number of them exist for trivial matters, which should be cancelled. The problem with them is that once they are issued, there is no mechanism for anyone to account for them thereafter. There is no process where a judge asks what happened to the X number of warrants he or she issued six months ago. No one stands up in court and says an individual named in a warrant was not found or the matter was resolved. There is a requirement for some finality in these matters. I suggest in the amendment that they would continue in force unless cancelled by a judge. In other words, that there would be some requirement for the matter to be brought back to the attention of either the issuing judge or another judge to deal with it.

Debate adjourned.