It was a bit unfortunate yesterday that we ended just as all the arguments had been made and had been presented to the Minister and I do not think there is any great need to recap because I had noticed the Minister making notes and paying close attention to what was being said. Basically, at this stage it is a question of inviting the Minister to respond to the points which were made in good faith by those Senators who queried the absence of a very necessary provision in this section. They felt very strongly that there was a major gap in the legislation and in fact had arrived at a stage where they felt this section of the Bill was totally inadequate to achieve what it purports to achieve and was glaringly deficient. I look forward to the Minister's response on the section.
Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987: Committee Stage (Resumed).
Our main job is to try to find a balance between the rights of the individual and the necessity for the State to protect itself against the misuse of drugs. I want to try to clear the air in relation to the many points raised yesterday, especially by Senators Bulbulia and J. O'Toole.
The net effect of section 2 is to extend the customs order search to what are termed meeters and greeters. Customs officers have had powers of search of the person for more than a century. The Garda Síochána have had specific powers of search in relation to drugs since 1977 under the Misuse of Drugs Act. The powers now sought have, in fact, no direct bearing on the detection of stuffers and swallowers. It is for the existing powers of search assigned to the Garda and to the Customs service to deal with these. The Constitution is taken to guarantee the integrity of the person and so intrusive body searches or compulsory medical tests are contrary to a person's constitutional right to bodily intergrity.
In relation to swallowers and stuffers the Select Committee on Crime, Lawlessness and Vandalism stated in 1984 that the question of the extent and legality of strip search of such persons' bodies requires the fullest examination. After that had been done, we are satisfied with what we propose — to find the balance. There has been a thorough examination of the extent to which constitutionally existing or any proposed powers of search can go. The conclusion is that the rights of the individual to bodily integrity are paramount. Since what is at issue here is not merely section 2, the legal constraints existing in relation to all powers of search by Garda or Customs, whether existing or proposed I respectfully suggest that in the interests of assisting as best we can in the fight against drug smuggling we concentrate on what is now before the House rather than on the whole corpus of criminal law relating to personal searches, which covers a huge area right across the board and would only confuse the whole issue. Here we are really focusing on the difficulties and the problems we have with drugs being smuggled into our country.
I listened very carefully and with a very open mind to the discussion yesterday and it was I think, one of the better detailed discussions in this House. I had the impression at the end of the day that the Minister was somewhat on the ropes with the arguments coming from the Senators — I was not one of them — such as Senator J. O'Toole, Senator B. Ryan, Senator Bulbulia and Senator Ferris. The points raised in the arguments, in fact, had not been fully thought through in the Bill and to a certain extent they were raising new and very real difficulties. I had the impression that perhaps the Minister was somewhat saved by the bell yesterday at 6.30. Unfortunately, from what he said this morning there does not appear to be any fresh thinking on this matter. Clearly in a Bill like this, where the overall objective of everybody in this House is the same and the ends which we all seek to achieve are the same, it is important that an issue like this does not become contentious. Certainly I feel that this section and the points raised by my colleagues have not been taken on board by the Minister, certainly from the evidence of his remarks just now.
That is why specifically I asked this morning that Report Stage of this Bill not be taken today. At the very least, the Minister could give us an assurance that in the period between the Committee and Report Stages he will take a deeper look at the questions raised. It is ironic, and Senator Ferris made the point, that the people who were making the strongest case yesterday in what ostensibly is an anti-civil liberty case were the people best known in this House for their very jealous and consistent defence of civil rights and so forth. But these are the very people who are actually asking that the powers of the Bill be strengthened in a way which probably would have offended most people who were interested in civil rights five, ten or even 15 years ago. One only has to go back to the time of the first breathalyser legislation and to read the very spirited speeches made by people like the late James Dillon who saw this as an intrusion on civil rights; the people who felt that urine tests in those days were going to be an intrusion and that people over a certain age having to take driving tests was an infringement of civil rights.
In that context, look at the case that was made yesterday, and I believe in this case in regard to the reality of the drugs problem, the ravages and the destruction which all of us can see, unfortunately sometimes very close to ourselves. The enormity of it perhaps does have to tilt the balance away from a direction in which I normally would not like to see it going. I believe that in this case the Minister did in fact mention the balance that has to be struck, and the nature and scope of the problem. I believe this Bill has not got it right. I am not sure that we have the answer right either. This is a section which does warrant further reflection. I would like the Minister to say that he still has an open mind on it and perhaps on Report Stage we could consider some other form of wording for it. Obviously on a question like this, I certainly do not want to push matters to a vote but unless I have that type of commitment from the Minister this is a section we would have to oppose.
I listened very closely to what the Minister said this morning and I just want to raise one point at this stage, as the only way to get through it is to take things one at a time. I raised the question yesterday of the need for urine samples and urine testing. I raised this point in particular because I am taking on board what the Minister said about the constitutional right to bodily integrity. Under other legislation we have built in a requirement to give a urine sample. I want to hear from the Minister whether there is any reason why that could not be included in this Bill, considering that the most technologically advanced testing at the moment for the identification of foreign bodies or substances or carriers carried inside the intestines is through the EMIT test, a very sophisticated urine test. It seems that if we do not do that, we really are not responding to the needs and requirements of the people. I just ask that question at this point?
I have no desire, any more than my colleagues have, to get involved in confrontational politics. This issue is far too important for that. The Minister spoke about the constitutional right to bodily integrity. Is he actually saying that under no circumstances in our society can an intimate body search be conducted? I must say that is not my understanding of the position. If the Minister says it is the position I would like him to explain what authority there is for that. My understanding is that intimate body searches can be conducted where the Garda for instance have reasonable grounds for suspecting that prohibited substances are contained within the orifices of the body. If that is an absolute prohibition based on the Constitution, I have no option but to accept that. It is difficult and not particularly satisfactory. If there is not absolute constitutional prohibition on such searches we cannot use a constitutional argument to exclude it here. All we can do is ensure that the intent of the Constitution, which is an intent based on balances of rights rather than on absolute rights in all circumstances, is met here in a way the Garda are expected to meet it if they have such powers.
That is not to say that there is an absolute right. We cannot have an absolute right if people who are intent on doing devastation to young people in the city on a scale that so many people know so much about can abuse the position in such a way. There is no point in trying to avoid the issue because the requirements to be just, fair and balanced in such a very delicate area make the drafting of legislation more difficult and complex than one would like. That means that we have a duty to be more careful about what we are doing. Did the Minister say there is an absolute constitutional right to bodily integrity which prevents intimate body searches in all circumstances by all organs of the State? I did not understand that to be the case.
Like my colleague Senator Manning I do not wish to be contentious on an issue on which we all agree there should be agreement. I want to reiterate the reason I feel happy that the checks and balances which the Minister clearly and lucidly pointed out this morning exist within the constitutional framework. We are dealing with a new phenomenon — the international drug smuggler — and he or she is a sophisticated street-wise individual who is well aware of the steps being taken to detect international smuggling operations. Despite what some of my colleagues have said, Ireland is behind other European countries in updating its legislation in this area. That is my information.
Nobody has said otherwise.
Senator B. Ryan made the point — I stand to be corrected — that we were not building into our legislation checks and balances which were in existence in European legislation. Perhaps I am turning it around a little by saying that Ireland is behind our European colleagues in updating its legislation in this area. We are talking about the necessity to protect our external frontiers from illegal importation of one of the most evil drugs known to mankind. I do not think we should allow ourselves to equate the civil law and the wide area of law as it applies to all citizens, with the law to fight illegal drug importers.
The Customs and Excise service need to strengthen their hand and, as I pointed out yesterday in the context of this section, if you were to visit an airport or a seaport and stand at the green or the red customs sign as travellers are coming through, you would notice the way the customs officers operate when they suspect something. I am using the phrase in the Bill, "if they have reasonable cause". Perhaps the Minister could point out the present criteria operated by customs officers "if they have reasonable cause. They stop people they believe may be importing illegal substances or who may be importing dutiable goods without declaring them. That is already a fact of life.
I do not wish to be contentious on it. I am trying to give the other side as I see it. The statement the Minister made here this morning should go some way towards alleviating the difficulties some of my friends on the other side of the House might have on this section.
I am becoming a little bemused at this stage and one could be forgiven for that in the circumstances. I understood Senator Mooney to say yesterday that he had discussed this legislation with his brother-in-law who is a French customs officer, and the comment that his brother-in-law made was that he felt that this legislation did not go far enough. Is that what was said? Now we have a U-turn or an about turn and we have a completely different presentation this morning.
There is no question in this legislation in my view of talking about this side or the other side. As far as I am concerned we are all on the one side combating the evil importation of material and substances which wreak havoc on the population in our major cities and elsewhere. The tone of the debate should be entirely lacking in contention. It should be an attempt to have a meeting of minds as to what is the best balance in combating this problem.
The Minister referred to the fact that there have been shifts of emphasis and turns. He is right in the sense that many of us started off this debate on the offensive because we felt there was an over-reliance on draconian measures. When we examined the legislation we found it milk and watery and unequal to the problem it purports to attack. That is the present concern.
I should like the Minister when replying to reiterate what he meant by a search of the person. I understood him to say yesterday that he meant the removal of certain outer garments and that he did not envisage a removal of all clothing. I would like him to go over that again. I also understood him to say that urine sampling would be on a voluntary basis and he completely ruled out any internal search of the body, although the points were very forcibly made and well argued that the importation of hard drugs was done largely by ingestion or by stuffing and, as a consequence, that aspect of things had to be attended to.
It was felt that this legislation omitted to address that aspect of the importation of drugs which the Select Committee on Crime, Lawlessness and Vandalism had addressed in its report. This legislation did not appear to take cognisance of that at all. Perhaps the Minister would be good enough to recap in fine detail what he means by search of the detained person and to say in the area of detention why he does not feel it is necessary, as it is in the British legislation, to have a maximum period within which the detention can be made. In the British legislation one is detained for a maximum of 36 hours which is renewable every six hours. Biology was not my strongest point but I understood that for the elimination of substances which had been ingested there must be a period of time within which this can be done and the period of detention in the legislation should meet that bodily aspect.
I was amused to hear Senator Manning say I was on the ropes. I have never felt on the ropes in this House or in the other House. I hope I can maintain that.
It was only Senator Manning's turn of phrase.
I admire the vigilance of Senators in teasing out the legislation. It is very important for the House, the legislation and the country. I have taken into account all that was said both yesterday and today. The main thrust of section 2 is to extend the powers of Customs and Excise officers to meeters and greeters and to confer on the Customs and Excise officers the same powers of search that heretofore have been available to the Garda under the Misuse of Drugs Act, 1977.
Senator O'Toole talked about the fact that we are not giving to Customs and Excise officers power to request a urine test and he said that gardaí have that power. As far as I know, under the drunk driving laws the Garda can give a person the option to provide either urine or blood. In that situation they are absolutely certain——
It is an offence to refuse?
It is an offence not to opt for either.
You have a choice.
You have a choice. In that situation you have to acknowledge that the garda, as the officer in charge at that given time, is absolutely certain that this person has in his system a liquid and that, firstly, he has too much of that liquid and, secondly, he may be endangering the public by the fact that he has consumed so much of it.
He must have reasonable suspicion.
Yes. We must accept, as lay people, that a garda is not going to put this pressure on any citizen unless he is reasonably certain that this person is carrying an unacceptable amount of alcohol, or at least is not able to maintain his balance in a particular way. The garda provides the option when he is reasonably certain. The Customs and Excise officer is not absolutely certain that this person is carrying illegal items. We have to balance that situation against Article 40 of the Constitution. We have a great record in this country of respect for human rights and bodily integrity.
We have discussed illegal importation in detail with the Revenue Commissioners, the Department of Finance, the Customs and Excise people and the Department of Justice. We are all at one on this issue — that we must maintain the whole thrust of what is enshrined in Article 40. We must maintain bodily integrity. I want to assure the House — I think it was Senator Ryan who raised the matter — that the Garda have not the right, under any legislation, directive, or guidelines, to examine the orifices of the body and we do not propose to give that right to the customs officers either. There is no allowance of any kind for intimate body searches.
I want to go back to the point raised by Senator Bulbulia and to confirm what I said yesterday, that the customs officers may demand a person to remove his outer garments. If they are suspicious they may demand that a person remove all of his garments, but that is as far as they can go. The same applies to the Garda. As far as we know, the Garda have used this power over the years in a very traditional and responsible manner and I am confident the customs officers will do the same. We want to plug the loopholes and the gaps in our laws that allow people to import drugs. These gaps that technical difficulties are depriving the State from having the most vigilant line of defence against drugs coming into our country and we want to ensure that all these gaps are plugged.
I appreciate the sentiments the Senator has expressed. We have to balance those sentiments, the constitutional rights and the protection of the individual against the needs of the State and the protection and integrity of the human body. We have tried to do this in the best way possible.
I hope I have covered all the points. I want to assure the House, and in particular Senator Manning, that, while other people may have found reason to criticise this House and its Members, over the years I have heard the most enlightened, educational and vigilant contributions to excellent legislation. This House has played a major role in shaping our legislation over the years. I have an open mind regarding the many recommendations and expressions Senators have made. My mind will remain open until the Bill is passed through both Houses and if we find any opportunity to improve or change it in any way that would be for the betterment of the country, of course we will do so.
I take on board the Minister's final point, that he has an open mind on aspects of this Bill because I was feeling utterly frustrated. Before this Bill was framed there were four problem areas. There was the problem of the meeters and greeters, to whom the Minister has consistently referred. This, in a nutshell, is where people meet travellers at the airports and if the traveller passed something to the person who is meeting or greeting him and that person got as far as the airport car park the customs officials did not have the authority to act in those areas. There is no doubt in my mind that this Bill goes a long way, if not all the way, towards resolving that problem. I hope Senator Mooney is listening because I do not want to make the same points again. I accept that this matter has been addressed and there is certainly a solution to it here, a solution that is worth trying.
Another problem arose under the existing legislation — the Minister referred to the different Acts, the 1876 Act, the 1956 Act, the 1977 Act, the 1984 Act and the 1987 Act — which gave people different rights and authorities. One particular problem that arose was that under the 1984 Act the Garda had particular powers which were not extended to customs officers and this created a problem for the customs officers. For purely pragmatic reasons it meant that people were slipping through their hands until such time as a garda came to the scene. I accept this matter is being addressed in this Bill and there is an attempt to extend these powers. That is worth trying. I accept that this point has been taken on board by the Minister and by his advisers and that this gap is being closed. These are two areas which I query. I have some difficulty about parts of them but they are minor in the general context.
There are two other areas I am concerned about. Members of the Minister's party have discussed this matter with me and they accept that there are loopholes. If somebody arrives at the airport with drugs in his body, either heroin or cocaine, which he has swallowed or has stuffed up a back passage, the customs officers may have reasonable grounds for suspecting — again I do not want to make the close analogy of the drunk driver — by virtue of information given, that this person is carrying an illegal item. This must be considered in the context of the constitutional right of a person to bodily integrity.
We are conscious of the people who are bringing this stuff through the customs and are destroying a young generation and destroying families. We are putting this side by side with the rights of those people who have seen their young sons or daughters dying on the streets from drug abuse while the traffickers and the sellers are profiting by it, even after coming out of prison.
When one considers all these matters and at the same time knows that a person is carrying an illegal item, one wonders how far we can go towards finding a solution. My view is that we must be able to use whatever available technology exists and one form is the urine test. I appeal to the Minister to ensure that rather than let a suspect walk free, he will be required to take a urine test. This is a simple way of approaching the problem. Similarly, he should be required to undertake a body examination. I want to stress this point. Neither the customs officers nor the Garda want to get involved in close bodily searches of body orifices or cavities. They will not go beyond a clothes or an outer body search. Obviously that kind of an examination would have to be carried out by a medical person.
I ask the Minister to take on board those two points. If we are now closing loopholes we could also consider these matters. I am not asking the Minister to say he is taking this on board. I would like to hear him say that the arguments have been made and there definitely is a gap there. He should consider these points side by side with constitutional rights and with what is contained in other legislation. Perhaps the Minister might be prepared on Report Stage to add to this Bill the points that have been made.
I appeal to the Minister to ensure that a situation is not created where these criminals of the worst type can walk through our system. Neither do we want the civil rights of normal passengers infringed upon. We must find a balance, I accept that. I now ask the Minister to find that balance.
I do not know what words to use to express the deep feelings of people who have spoken to me on this issue, people who have suffered and people who do not have a voice in this forum but who have seen the results of illegal drug importation. These are people who have got into trouble for depriving people of their civil rights while trying to keep drugs out of their own community. They are dependent on us to enact legislation to cut out the loopholes and close the gaps these people are using at the moment. I appeal to the Minister to take on board these two main issues. The meeters and greeters and the rights of the Garda and customs officers have been addressed very clearly in this Bill and I am asking the Minister to extend the Bill to include these further two points.
I have followed the discussion on this section with great interest because it seems as though a very big gap exists in the kind of control which Senators on both sides of the House and the Minister would wish to see extended. The Minister is correct in highlighting the necessity for a balance between the constitutionally recognised right to bodily protection, one of the unenumerated rights under Article 40.3 of the Constitution, and the need to enforce this legislation. It is a rather vague term which the courts are refining through different cases relating to it, the first being the flouridation of the water case. There are a number of areas where the right to bodily integrity is curtailed, for example, if you are placed in prison, if you are required to give your fingerprints or if you have an option of either a blood test or a urine test under different legislation.
As I understood the Minister, it seems as though the balance has not been properly struck in the section as it now stands. The reason for that can be revealed by looking at the precise problem this section seeks to control and I think in the views of Members of the House does not do so. If an officer of the Customs and Excise has reasonable cause to suspect that a person is importing a hard drug either by having ingested it or having it concealed in his or her body, under the provisions of section 2 as it stands at the moment the officer of the Customs and Excise can search the person. The Minister has made it clear that, although there could be a requirement to remove clothing, that is the end of the search.
Under section 2 (1) (i) the only detention permitted is a detention of the person for such time as is reasonably necessary for carrying out the search. If the search is necessarily limited to, at most, the removal of clothing, the detention of a person could only reasonably relate to, at the very most, such time as would be required for the removal of clothing. It would debar the possibility of giving rise to the circumstances Senator Bulbulia referred to which would be possible under British legislation — that through the passage of time there would be passage of the concealed matter.
The issues raised in the discussion on this section are extremely important. It should be possible to create a balance with all due regard and respect for the constitutional right to bodily integrity but which ensures that where there is reasonable cause to suspect that a person has concealed items within his body, either by ingestion or by stuffing, the powers exist to ensure that that person could not simply go on his way and import into this country the hard drugs concerned. The debate has highlighted the gap that exists. It can be filled without any problem of conferring powers that would be of doubtful constitutionality and so on.
I hope the Minister will not only have an open mind but will introduce an amendment on Report Stage which will address the problem. For example, if a potentially greater power to detain were to be given by specifying a time under the section, it should also be possible to give the person an option of giving a urine sample within that period to clear himself, the option not to be further detained. It would be possible to give the person an option of voluntarily permitting a body search beyond what would be regarded as being a power that should be available to the officer of Customs and Excise to be carried out against the will of the individual.
There are further balances that could be brought into the section which would achieve the very important objective that Senators seek, which is that the section would not be deficient, as it is at the moment in not giving adequate powers where a person has concealed a hard drug internally. I share the deep concern of Senators because that appears to be the main way in which hard drugs are imported into the country.
First, the Minister in his last reply was extremely fair and open-minded and there is no question on any side of the House about his good faith or anybody else's good faith in this matter. He made the point that all the relevant authorities — the Garda, the customs and all the experts — are satisfied that this Bill seems to go as far as possible to get the proper balance between the constitutional rights and the need to enforce this legislation. We are grateful for the comments he made about the vigilance in this House. If this observation is to be more than just a polite and well meant noise, on foot of what has been said this morning and yesterday in the very detailed contributions from speakers in this House, the Minister has now proven to me conclusively — as I said I came into this with a very open mind — first, that there is a gap in the legislation between what it is intended to achieve and how this will be done and secondly, it is possible — and the last speaker in particular has highlighted some of these possibilities — without infringing civil liberties to actually meet the particular problem. We will never meet it fully — God knows that will not be possible — but at least the legislation can be improved to the extent that more people who are involved in these heinous activities can be apprehended and brought to justice and in consequence, a great many lives can be spared.
I would like recognition from the Minister, which I think he will give very easily, and there is a problem, that this problem has been highlighted here this morning, and that it is possible on Report Stage to bring in amendments which will go as far as possible towards meeting that problem. If I can have that assurance from the Minister this morning I, and I am sure all those who have spoken on this Bill, will be much happier about seeing its unimpeded passage through the House today.
The final recommendation of the Select Committee on Crime, Lawlessness and Vandalism was that urgent attention should be given to and guidelines issued in connection with procedures to be followed where there is suspected concealment on or in the body by persons generally known as stuffers or swallowers. The Minister said this Bill confers on the customs officers the same powers as the Garda have under the Misuse of Drugs Acts, 1977 and 1984. Yesterday I gave a very clear example to the Minister of the person who is seen by the customs officer to swallow something into the body and therefore the customs officer has reasonable grounds for suspecting that the person has concealed in his body some substance, possibly a drug. When I put that question to the Minister he said the person would be handed over to the Garda Síochána. If the customs officers have the same powers under the Misuse of Drugs Act as the Garda Síochána, why should not a person in the circumstances I referred to yesterday be dealt with by the customs officers?
Many interesting points have been raised. We are talking about the connotations of the powers of search. I want to re-emphasise that the purpose of this section is to cover the meeters and greeters and to transfer the powers. From all the information we have at our disposal and all the consultations we have had, we believe we have gone a long way down the road to ensuring that we can plug many of the loopholes that are allowing people to get through the net. I see much merit in some of the proposals put forward, particularly the one about the urine sample.
The only assurance I can give the House is that we will definitely reconsider the matter. We will seek the most expert advice available. I will talk to both the Minister for Health and the Minister for Justice and their staff and we will come back with an answer. Whether or not it will necessitate an amendment I cannot say at this stage but I have a totally open mind. I am prepared to reconsider this and we will do our utmost to find a balance in what Senators believe is necessary to have the law fully implemented to the satisfaction of all and sundry.
A number of points were made and I hope I can cover them all. Senator O'Toole made the point about mandatory urine samples and I hope I have covered that. Senator Robinson covered a wide number of points. She talked about the passage of time where somebody has ingested, concealed or stuffed articles in his or her body. We hope — and I think this will also cover Senator Doyle's point — if we have reasonable grounds of suspicion these people can be detained and observed for as long as is necessary and will admit, discharge or otherwise that which has been concealed or ingested. We would hope to be able to detain them for as long as is necessary in order to get a satisfactory conclusion to the difficulty encountered.
They can be checked, frisked and searched in the normal way by an ordinary customs officer and, if he has reasonable grounds for suspicion, he can take him to a senior customs officer. If the ordinary customs officer or the senior customs officer has reasonable grounds for suspicion they can call in the Garda Síochána. The customs officers can bring that person before a District Justice for a search warrant or otherwise. These are all connotations of the law which we propose. We have tried to get a balance between the needs, the demands and the rights of all individuals and of the State. I hope we have done our best to satisfy those needs, rights and demands. I have an open mind on the matter.
Senator Doyle asked a pertinent question, and he also asked it yesterday, that is, if a customs officer observes a person swallowing a drug, an article or a commodity, why does he have to call in the Garda Síochána? Basically he has the right to search and the right of detention. If he wants to detain the person and have him charged, with the hope of a successful prosecution emanating later he would have to call in the Garda Síochána to take custody of that person and to put him in detention. The Garda would then carry out their own investigations and checks, etc. The customs officer has the right to detain, to question and to search but in order to hold that person in detention he must call in the Garda Síochána. We are transferring the powers of search and detention the Garda have to the customs officers. The full rigours of the law will be carried out by the Garda after that. I hope that answers the question. I want to reassure the House that I have an open mind and that we will try to take on board the very important points made about the mandatory urine test.
What the Minister has said goes a very long way towards meeting our fears and concerns. I do not think anybody expected that we would resolve this problem here this morning and come up with a form of words which would meet all of the problems. I am very glad the Minister is going to consider this question again, that he recognises there is a real problem and that he will consult with other Departments. From our point of view, we will certainly be putting forward an amendment on Report Stage which will try to meet the problem. Other people may also put forward amendments so that out of that combined pooling of experience and resources we may come up with some ideas which will go at least part of the way towards solving this problem. I thank the Minister for the very open mind he has shown on the matter.
I would also like to thank the Minister. He has given a very generous response and I have no more queries at this point. We have made our arguments and I have no doubt the Minister will discuss them with the experts at his disposal. I look forward to hearing the results of that consultation. I thank the Minister for taking the arguments on board. I recognise that there has been a lot of to-ing and fro-ing and I look forward to the response.
I like to-ing and fro-ing.
I can assure the Minister that I will not delay section 2 of this Bill any further.
We have had, I would imagine, at least a two hour discussion if not more on this section of the Bill between last night and this morning. For me it has been exhilarating in that we have seen in this House the actual process of legislation work by the collective wisdom, experience and opinions of all those who made contributions on this section of the Bill and who voiced their own concerns. We have received a generous response from the Minister which has gone a long way towards allaying my fears. I am pleased that he is going to consult with experts in the Departments of Health and Justice. I also ask him to look at the legislation in France which Senator Mooney, through his contact, assures us is stronger and more forceful legislation than this. I ask him to look at other European and British legislation.
Senator Robinson reverted to the point I had made about the elimination of ingested matter and the time span required for this process to take place. Perhaps if the Minister sharpens up in the area of the period of time involved in detention we will be able to meet what we feel is a gap in this legislation, that is, the whole area of the stuffers and swallowers. I accept totally that the area of the meeters and greeters has been provided for adequately by the measures contained in this Bill, but the gap or loophole is in the area of the stuffers and swallowers.
I read recently that it is quite likely that strenuous efforts will be made to introduce more and more cocaine into this country. It is a drug which has not really become popular here but it is extremely widely used in the upper echelons of society in the main in other countries. We are in no doubt that this is a country where efforts will be made to import and to sell this other drug menace and the ways in which such a drug can be imported are many and varied. The stuffers and swallowers will, of course, use that particular method to ensure that it arrives in this country. We must be cognisant of that fact and vigilant in regard to it. When the Minister comes back on Report Stage perhaps he will indicate that he is taking that particular drug substance into consideration because with heroin it comes into the stuffers and swallowers area which we discussed in detail yesterday.
I very much appreciate the fact that the Minister appeared to recognise the very valid arguments made in good faith by those who queried minutely the detail of this legislation.
I will be very brief. I never envy a Minister who gets involved in a detailed discussion with the Members of this House. It is perhaps because we are frequently criticised that we are so jealous of our rights to go into great detail on aspects of legislation and hence the phenomenon that the Bill which it was presumed — I am not saying the Minister presumed it, but others presumed — would have been disposed of completely in an hour and a half yesterday has still not got beyond section 2. Having said that, I must say I found the Minister's response positive, receptive and forthcoming. Like all of us in the middle of a discussion he said things that some of us did not like but he also said things that we did like. Most of us are well used to saying things that other people do not like so we cannot object if the Minister does the same. Nevertheless, he was forthcoming. There was a considerable development in all our positions over the three or four hours of discussion. I am not used to being part of the law and order lobby but that is where I ended up because of the way the discussion developed.
I have no regrets in that matter because in the very specific area where we are talking about, the insult to our society, the threat to our children and the threat to families and, indeed, to communities, is so great that you cannot walk around with your simple, libertarian glasses on and pretend you do not see the reality that confronts you in many of our urban areas. Therefore, I am glad we have made some progress and I compliment the Minister for it. It may not have been the opposition he expected. He came in expecting a considerable amount of civil libertarian venom and instead he got a law and order lobby from a source he did not expect. He responded extremely well and he has been very constructive. I welcome it and I do not propose to delay the House any longer on section 2 anymore than Senator O'Toole does.
I thank the Minister as I think we have made great progress this morning in the debate. I want to go back on an aspect of what I was saying earlier in relation to the Minister's reply about the person who has been seen to swallow something and has been detained. The committee were informed that the case took five to seven days, and even longer, for a substance that was swallowed to pass through the body. If that person is handed over to the Garda Síochána for detention, what is a reasonable time for that detention? I have to act as the devil's advocate in this. If a person is detained for five to seven days before a substance can pass through the body, that person can feel aggrieved by this detention if he is found to be completely innocent. It might have been a sweet that the person swallowed.
Under the other Acts that we have for detention, we have the complaints procedure where people can make a complaint, for instance, under recent legislation, against the Garda Síochána. If a person is detained by customs officers and at some stage is handed over to the Garda Síochána for detention then if that person feels aggrieved to whom can he make his complaints? Is he covered by the complaints procedure in relation to the Garda Síochána. They did not make the detention in the first place. Is he covered by the complaints procedure in relation to the Garda Síochána. They did not make the detention in the first place. If they are not covered by the complaints procedure of the Garda Síochana is there any procedure by which they can take action against the customs officers for unlawful detention and so on?
I would like to thank Senators for their very positive response and for their acknowledgment of the situation. In response to Senator Doyle, as somebody who served on the Committee on Public Expenditure for about four or five years, I am well used to his very incessant, direct questioning.
We have no record of anybody swallowing anything in front of customs officers. We cannot recollect and we have no record of that situation so basically I would have to say it is a hypothetical situation. I accept the information the Senator got on the Committee on Crime, Lawlessness and Vandalism that substances may take five to seven days to pass through the body. I would acknowledge that situation in that the internal effects of the substance swallowed may not have gone through the entire body and have not have had their effect for five to seven days. I am not a medical person but I know anybody swallowing anything like that could not retain it for five or seven days, it would be physically impossible.
Even more than 15 days were involved
If a customs officer detects that a person is carrying something, or may be carrying something, he may require a search. That person, under the law we propose, would have the right to be brought before a senior customs officer, a Peace Commissioner or a district justice if he or she so wished to perform and co-operate. People have that right. If customs officers hand over a person to the Garda and the Garda proceed with their investigation, search and questioning then that person would have the same recourse to the Garda complaints procedure as any person detained by the Garda.
Could I invite the Minister to give a resumé of section 3?
The effects of section 3 provide for the issue of a search warrant to an officer of Customs and Excise authorising him to search premises or land for controlled drugs which were illegally imported or are intended to be illegally exported, or for documents relating to such drugs. It empowers the officer, who executes the warrants, to arrest any person from the place being searched and to search that person. It also defines "land" and "structure" for the purposes of the section. The provisions of the section follow closely on the provisions of section 26 of the Misuse of Drugs Act, 1977, as amended by section 13 of the Misuse of Drugs Act, 1984, dealing with the issue to and execution by the Garda of search warrants in relation to the control of drugs.
The extension of these powers to customs was recommended by the Select Committee on Crime, Lawlessness and Vandalism in their second report, paragraph 5, chapter 2, Part I. This provision will strengthen the hand of the customs service. Under existing law, a customs officer is entitled to search a traveller who is suspected of smuggling at an import or export point but is not empowered to search a suspect person found at a premises or place in the course of a forced importation search conducted under warrant for smuggled goods. The search of premises normally arises in cases where customs officers are acting on information received or are following detections already made. The provision also covers a list of drugs which are intended to be exported. This is essential in order to combat international drug traffickers who may try to use Ireland as a backdoor to other countries.
On the second stage of this Bill I was concerned about the extension of powers to apply for a search warrant and then exercise the implementing powers under that search warrant to enter by force, if necessary, and to search premises up to a month after the officers of Customs and Exercise may have suspected that matter was being contained in the premises. My concern was that, as subsection (3) in particular is drafted, it gives the powers exclusively, or potentially exclusively, to officers of Customs and Excise. As the Minister has explained, these are powers which the Garda would have under the Misuse of Drugs Acts, 1977. What I am concerned about is that the subsection would authorise a named officer of Customs and Excise, accompanied by such other officers of Customs and Excise and such other persons as may be necessary, and presumably that is a generalised reference to the possibility of members of the Garda Síochána——
Or the Army.
It does not seem to me to be desirable to be framing a subsection to authorise, and perhaps encourage, officers of Customs and Excise to exercise these powers without being accompanied by members of the Garda Síochána. The Minister is talking about entering forcibly if necessary, premises and searching those premises. The Minister is talking about arresting and detaining and these are very far-reaching powers which the Garda are trained to use and which they are responsible for under the complaints procedure to which Senator Doyle referred.
I am not against the extension of powers to officers of the Customs and Excise if it is necessary to avoid gaps arising. Why is there a gap here some time later? The section is framed in such a way that Customs and Excise officers can carry out these powers without any notification to the Garda or without working with the Garda in the matter. I would prefer if the powers to forcibly enter and search premises could be exercised by officers of Customs and Excise but that the officers of Customs and Excise were required to have members of the Garda Síochána with them when exercising those powers. I would like to know what the thinking of the Minister was in having the section so drafted.
Senator Robinson has raised a number of points. The powers to obtain a search warrant are already with Customs and Excise officers for many years. There are a number of reasons we want opportunities for Customs and Excise officers to be able to obtain a search warrant themselves. They have that already in particular situations pertaining to illicit drugs, seizure of goods and so on. We also want to extend these powers for a number of reasons, first, to ensure that all the resources of the State can be utilised in the first line of defence vis-à-vis prohibited goods, illegal drugs, and so on coming into or going out of our country.
We need flexibility in that because in any given situation, Customs and Excise officers operating at an airport or a seaport would need to be in a position to alert their colleagues in a remote part of the country, many miles from where they are operating at that given time. It would be necessary to have the flexibility so that they could obtain an immediate search warrant and do an immediate search. We would also visualise the co-operation of the Garda Síochána, and indeed the Army, in any given situation, not alone for the expert assistance that would be needed but also for the protection of customs officers in the exercise of their duty.
There has been tremendous co-operation between the Garda and customs officers over the years. The customs officers constantly alert the Garda Síochána vis-à-vis certain matters. The Garda Síochána constantly alert the customs officers vis-à-vis certain matters. I am satisfied that the powers we are delegating here will be operated honourably and judiciously, that the Garda Síochána, in so far as possible, will accompany customs officers in their search at any given time. If the House were to prevent a flexible use of these search warrants we would be impeding our first line of defence, the Garda Síochána and the Army and the customs officers in the discharge of their duties and preventing the resources of State from being fully available to the State in any given time, at any given place and at any given notice. This is the main purpose of this section.
Perhaps I could pursue the matter a little further. As I pointed out when raising the query, the powers under subsection (3) can be exercised at any time, or times, within one month of the date of issue of the warrant. It could well be within a fortnight or within a month that the powers are to be exercised. If as is quite open to the officers of Customs and Excise, Customs and Excise officers decide to go in themselves, forcibly to enter, forcibly to search, to arrest and detain and then, if at the end of the day nothing is found, what recourse does the citizen have in those circumstances? There has been no Garda presence so it would appear that the complaints procedure which has been set up cannot be invoked.
In response to the query I raised the Minister said the gardaí would be brought in, he is confident etc., and where possible the members of the Garda Síochána would accompany them. If the Minister is confident that that would be the case why do we not write it in? Would it not be preferable to have a provision in the section saying that, where possible, a member or members of the Garda Síochána should accompany.
These are powers that are normally associated with members of the Garda Síochána and we have built in protection for the citizen if there is abuse of those powers. That protection is gone if it is officers of the Customs and Excise who would not be so used to forcibly entering and searching, arresting and detaining people. If they made a mistake or if they abused their powers — I accept that that would be a rare occurrence and I am not in any way casting a criticism; I am merely trying to ensure that the legislation is drafted in such a way that it gives adequate powers but also built in adequate protections — it seems that by not making it clear that the intention is, wherever possible, that members of the Garda Síochána would be present when there was a forcible entry and search of premises, we may not be providing adequate protection and possible subsequent recourse for citizens where powers have been abused or where the citizen feels aggrieved.
I welcome this section. It is desirable that we give to our officers of Customs and Excise to search and to detain people especially in view of the fact that so much drugs are being imported into our country by sea and air, and land frontier. I am sure the Customs and Excise officers will not abuse the power being given to them.
I have taken into account what Senator Robinson has said and I appreciate the sentiments which she expresses. However, I feel it would be impractical to operate a situation whereby it would be mandatory on the customs officer to be accompanied by the Garda at all times. We are making the situation inflexible for the customs officer or his colleagues in the implementation of their duties. While we co-operate with the Garda — and we are quite confident that there will be constant co-operation with them — if we are to put in an amendment saying "where possible", it would be meaningless because we always co-operate with the Garda where possible. Customs officers are usually accompanied by the Garda Síochána, if at all possible, and customs officers already have extensive powers of search for goods, so we are only giving them an extension of this power.
I am confident that over the years they have discharged their duties in a very honourable fashion. The citizen will have recourse to making a complaint to the Revenue Commissioners, making a complaint to the Ombudsman, or taking a civil action. The basic thrust of Irish law and our whole Constitution and democracy is based on the rights of the individual. They always have recourse to the courts and if anyone feels victimised, he or she has options available. I am confident that in most situations it would be unnecessary for people to use the options available to them.
I have one final question on this matter. The powers given — apart from powers of search and the power to forcibly enter, if necessary, premises or land, to carry out that search — also include power to arrest, without warrant, any person or persons found on such premises and to keep him or them as may be appropriate, under arrest until such time as such of the powers of arrest or examination as he wishes to exercise pursuant to the warrant have been exercised by him. So there is power to arrest and keep under arrest and there is power to arrest without warrant. They were precisely the kinds of powers that gave rise to the perceived necessity for a complaints procedure which went beyond the Ombudsman or taking a civil action in the courts in relation to the Garda.
It would not be superfluous if there were to be included in this subsection, a provision, not that it was mandatory on every occasion that the Garda Síochána be present but that, where possible, that would express the legislative intent which, from what the Minister has said, goes with good practice anyway. That is what is done.
We are certainly extending the powers of Customs and Excise officers by this section. I think it would be desirable to include and express legislative intent. Perhaps it is something that could be considered by way of an amendment on Report Stage. I am concerned about a subsection that gives such wide powers to officers of Customs and Excise without putting in an express legislative intent that those powers would be exercised wherever possible in accompaniment with, and with the co-operation and responsibility of the Garda Síochána, if it became necessary for the citizen to seek protection or recourse afterwards.
I share the concern expressed by Senator Robinson under this section. It is important to recognise that we are giving Customs and Excise officers extremely wide powers. When the Criminal Justice Bill was going through this House, this whole area was widely discussed and at the end of the day there was the establishment of the Garda Complaints Tribunal, to safeguard the citizens' rights. It is illogical to give such an extension of powers to Customs and Excise people without similarly safeguarding the rights of citizens.
Senator McEllistrim assured us that the Customs and Excise people are above reproach and I understood him to say he did not envisage the possibility of abuse.
I was careful, and indeed I feel it necessary, to compliment the Customs and Excise people. I recognise that they have a very difficult task to perform and that they do it in a skilful, trained and intelligent manner. But we always have to guard against the vicissitudes of human nature and there will always be occasions when things go wrong and abuses will occur. If we found it necessary to put in place a Garda Complaints Tribunal, why do we not find it necessary, when we are extending powers in this Bill, to put something similar in place for Customs and Excise people or to ensure that the Garda accompany them so that any action of arrest can be covered by the Garda Complaints Tribunal? It is important to remember the citizens' rights in this area and also to remember that human nature has a tendancy to fall down on the job from time to time.
I join with Senator Robinson and Senator Bulbulia. But I would like to go a lot further than either of those Senators. What we are doing here is creating a second police force. The Constitution provides for one Army and one police force and we are giving the same powers and, in some cases, greater powers, to customs officers than we are giving to the Garda. Putting in a proviso is not enough. These powers are tantamount to setting up a second police force and I would certainly be against giving them such powers.
Perhaps the Minister would be able to give some assurances to the House regarding the powers which are being given under the section. I, too, share the concern expressed by the other Senators. As Senator Bulbulia said, the human element is something that cannot be written into legislation. I have spoken earlier and I do not wish to give the impression that I would, in any way, be impugning the integrity of customs officers, but this is an aspect of human nature. As a frequent traveller I have had experience of customs officers, under existing law, being questionable in their attitude towards me and towards some of my friends down through the years. Perhaps the Minister might be in a position to give us some assurances as to the type of redress a citizen would have if customs officers were to exceed the powers which we are intending to confer on them.
In giving customs officers powers to search, detain and arrest, my feeling is that if they had to get a warrant to search or to detain, a great deal of time would be wasted. If a garda had to accompany them, much time would be wasted as well. As I said at the start, I welcome the section and I feel that the powers given to customs officers will not be abused. In this day and age it is necessary to give those powers to customs officers.
I would like to ask Senator McEllistrim how he can give an assurance that the powers being given to Customs and Excise officers under this legislation will not, to use his phrase, be abused? If I could get such an assurance I would not be on my feet in this House. I would just like to know how he can be so categoric in his statement.
I rise again because the Minister has been asked — and I hope he will — to delineate the powers of a customs officer under the section. Specifically, in relation to the powers of arrest without warrant, under subsection (4) (b) the person may so arrest any such person or persons and keep him or them as may be appropriate, under arrest until such time as such of the powers of search or examination as he wishes to exercise pursuant to the warrant have been exercised by him. There could be a quite extensive period of time there. Is there any upper limit to how long a person could be arrested and kept under arrest? The word "detain" is not used; it is "arrest" and "keep under arrest". Does that mean the person would have to be kept on the premises or could he be kept under arrest somewhere else and, if so, where? What are the powers that an officer of the Customs and Excise would have? Where it says "to carry out the powers of search or examination as he wishes to exercise" seems to be a rather subjective test. It could be something that could be used to create a certain difficulty for the individual: "Look, we are here under a search warrant; this is quite a large house; it could take us a week to search it and I intend to make sure that the search is carried out in that manner because I believe you are in a position to tell us a great deal more than you are telling us about this matter."
All I am concerned about in drafting the legislation is that we do not get the balance wrong, to use the Ministers own expression. Like Senator Bulbulia, I am not happy to give assurances or to presume that things will be well done. I am much more concerned to ensure that the legislation is tightly drafted. It seems that is a relatively unusual type of phrasing. It may be that I am wrong, that it is taken verbatim from another section of another Act, but I am not sure about arresting a person and keeping him under arrest, and exercising his powers "as he wishes to exercise them". I would like to be assured by the Minister that there would be an upper limit to how long a person could be kept under arrest under that sub-section.
I would like to follow the points raised by Senator Bulbulia, McEllistrim and Mooney about abuses in the past. I have concrete evidence of abuses of the powers of customs officers, where abuses occurred and where they seized property they had no authority to seize and then left the people to go and collect the property at their own expense. I also pointed out on Second Stage that the customs officers, as a body, proved to be irresponsible in the past when they went on strike. Anybody is entitled to go on strike; it can be said that it is the workers' only weapon, but the customs officers put a notice in the papers as to the days they would go on strike and left the airports, the seaports and land frontiers open. The country could have been flooded with drugs as a result of their abuse of their position. I do not trust the Customs and Excise and I would not give them these powers.
This section is providing a search warrant to authorise legal officers of Customs and Excise, accompanied by other officers or persons to enter, as specified in the warrant, any person's home or property within one month of the date of the issue of the warrant. It also provides for the seizure and detention of controlled drugs in respect of which it is reasonably suspected that a customs offence is being or has been committed and of any documents which may be required as evidence in the proceedings. This is an extension. First, we are allowing them to take the drugs; secondly, we are allowing them to take the documents. They have had power to search heretofore under Irish law. They have power to arrest and detention under Irish law and we are only extending those powers to cover drug offences.
Search warrants under the Misuse of Drugs Act, 1984 and 1987, give the same powers to the Garda Síochána. Customs officers are already empowered under the Customs Act to search houses or other places under search warrant issued in relation to a proposed search for specific goods and to seize and move any such uncustomed or prohibited goods which they find in the course of the search. They are also entitled to search a traveller suspected of smuggling at an import or export point but they are not empowered to search a suspect person found on the premises or place in the course of a post-importation search conducted under warrant for smuggled goods. This is the gap we have to fill.
There is also provision — and it is necessary — to stop such persons in a house, in a building, in a property, or at a location from interfering with the search by the customs officers or the gardaí, from removing or destroying documents or other evidence relating to smuggled drugs as smuggled drugs are found to enable the customs officer to prefer charges against any suspected persons. This is the difficulty about the third party, the meeter or the greeter at the port. The third party in the location may not be the suspected person before the warrant is issued but, once the warrant is issued for search — people may be there aiding, and abetting and assisting, they may have very prime information on their person or at their control — this enables the customs officer to move in and take control of the entire situation and take control of the people there and the documents there. In order to prefer charges and prove a case those documents are vitally necessary. It is to get rid of all these anomalies that we have allowed this situation.
In replying to Senators Bulbulia, Robinson and Daly, the powers of arrest and search have been conferred on customs officers in this country since 1876. If we found that it was necessary, due to flagrant or constant violation of the powers conferred on customs officers, we would have put in a suitable section. There is no evidence to suggest that the powers of search and arrest which heretofore have been conferred on customs officers have been abused. There is no reason to suspect at this stage that they will be abused in the future. There is no section which envisages that the citizens or the people who would be victims of the search, or a party to a search, would have to have recourse to a situation similar to that which exists regarding the Garda Síochána complaints tribunal. Of course when the gardaí would be present, particularly if the search warrant is for a period within one, two, three or a maximum of four weeks after the search warrant has been issued — they will be working to guidelines. If the search is taking place after a period of time of course the guidelines will operate.
I want to assure the House that specific guidelines will be issued by the Revenue Commissioners for implementation by Customs and Excise officers after this Bill has been passed. They will be working to those guidelines. If there is sufficient time between the issue of the warrant and the execution of the warrant, of course the Garda Síochána will be involved in accompanying the officers. We must allow the flexibility whereby, if something is detected at Dublin Airport and a customs officer needs to get an investigation done perhaps in a remote part of Donegal, or Kerry, or Galway and perhaps the gardaí may not be available at the given time, the customs officer may get one or two colleagues to obtain a search warrant to investigate a particular house in a particular place at short notice. We must also accept that it could be conducive to a successful search by the customs officers that uniformed gardaí should not be present on all occasions — perhaps detective gardaí could be present — but on many occasions it would have to be plain clothes gardaí or civilians operating for the State.
It would be much more effective to arrive at a house and take that house unexpectedly and search it. If a uniformed person comes to the door or window it gives extra minutes or moments for people to take the actions that may deprive the State of the information it needs in order to prove a particular point or position and have a successful conviction in law. It is to alleviate those problems and get rid of the anomalies that this section is proposed.
There was also talk about a reasonable time. I think Senator Robinson spoke about that — a "reasonable time" would have to be interpreted for as long as is necessary to carry out a particular search, to make particular arrests, to detain people to get sufficient information but, of course, the customs officers in themselves would not be in a position to detain people for, say, seven days. I would not visualise that situation. It will be a matter for the Revenue Commissioners to draw up the guidelines. If these people are detained I am confident that the State will provide places for them. The record of the State over the years is that there are particular places of detention in the country, namely Garda barracks, for temporary detention and investigation, prisons for long periods of detention or, indeed, in the case of the customs there are rooms and offices available to which the customs officers will take people for investigation, questioning and detention. Given the gravity of the situation, the location, the resources that are needed, it would be obvious to me that the customs officers would be accompanied by gardaí and have gardaí at hand to arrest people and take them to places of detention, be it temporary or permanent bearing in mind the need to take specific action.
If I may quote from the report of the Ombudsman for 1986; he said that a total of 2,434 complaints against the Civil Service were fully dealt with in 1986. Only six related to the customs service. Of 2,500 only a mere handful related to the customs service. None of these complaints related to abuse of power. I think that coming from a most impartial and most senior officer of the State is proof positive of the vigilance and the responsible attitude of customs officers in the exercise of their duties. We must recognise and realise that — and many people here have acknowledged it — they are dealing with very difficult people, very professional criminal types who will go to all extremes to ensure that they can ply their trade with maximum success.
I think that this section gives the flexibility that is necessary to the State to ensure that the job can be done properly and I want to assure Senator Daly that there is no way that there is any extra power, or there is no way that all the powers of the Garda Síochána are being given to the Customs and Excise officers. The very job that they do is the first line of defence on imports and exports of controlled goods and watching for prohibited goods and illegal drugs and all that type of thing. They have a specific job to do. They have specific powers and they can only do that job and use those specific powers vis-à-vis their job. There is no danger in the world that they would be a second police force. They are a vital organ of State for the protection of our people and for the protection of our whole economic base.
I would like to be as happy and blasé about this as the Minister is. I am not. When I spoke about the powers of arrest given to these people he quoted an Act of 1876. Neither the Minister nor myself were around that time. He is talking about a British Act enacted in 1876. We are now in 1987 one hundred years later and that Act still stays. He said the Ombudsman had only six complaints about customs officers out of 2,500 complaints against the rest of the Civil Service.
Customs officers by comparison with the rest of the Civil Service are whiter than white. What about the complaints that people made about abuse of the customs officers' powers? I have made complaints and I got no satisfaction whatever, I had concrete evidence and no action was taken. I can only assume that hundreds of other people had made the complaints that I have made.
While we are all willing, and only too willing, to give any powers to the customs officers to deal with drugs, because we all despise drugs and the people dealing with drugs, it is another matter to cover the wider spectrum. The Minister spoke about travellers and all goods, export and import, with the customs given the same powers. I would question some of the behaviour I have seen and I travel a lot through airports and customs. The question I would like to ask the Minister is: do the customs officers get commission on the goods they seize? That is what I would like to know.
I think we all agree that every measure must be taken to eradicate the drug problem from our society. Powers must be given to the officers of State who have that responsibility. The Committee on Crime, Lawlessness and Vandalism did recommend this measure. I feel that the duties of Customs and Excise in relation to drugs and other matters should not be brought in at this stage. We are dealing specifically with drug-related matters. That is very important. I am glad to hear from the Ombudsman's report that only six per cent of the complaints were in relation to Customs and Excise.
Only six out of 2,500.
Unfortunately, Minister, I have to say that his examinations and reports next year will be much fewer, due to the reduction of staff in his Department.
I would like to assure the Senator that the Government are taking action to ensure that the load will not be as heavy on them. I hope the House will co-operate in that action.
Senator Robinson made the point — she has left now — that in the case of a search of a premises and the length of time that search might take, people might have to be under arrest while the search was taking place and it could take a long time. The Minister mentioned that guidelines will be issued by the Revenue Commissioners. It is regrettable that the guidelines were not with the Bill so that people who have responsibility for passing legislation could see the guidelines and rest assured that the guidelines were satisfactory.
The Minister referred to guidelines yesterday and I was appreciative of the fact that they would be brought into being. I wonder does he envisage that they would be along the lines of a code of conduct or an ethical code governing the actions of the Customs and Excise people. I think it is important in the context of an absence of any overseeing body, or any complaints tribunal, that such a code of conduct would be put in place and would form part and parcel of the guidelines which the Minister referred to. That is all really that I want to say on this section. It is an important point. People are becoming more and more litigation-conscious and more conscious of their rights as individuals and citizens and if these rights are wrongfully challenged or if the rights of citizens are eroded in any way, they can legitimately bring forward a complaint.
The Minister cited the statistics coming from the Ombudsman's office and drew comfort from the fact that of the 2,500 referred to the Ombudsman's office from the Civil Service section only six related to the Customs and Excise and not one related to the abuse of powers. That is in the past. This legislation is about giving powers in the future to Customs and Excise people. I think our legislation should, to some extent, reflect what has been the case in the past but it should also anticipate what may happen in the future. Perhaps there is a difficulty in relation to the absence of some tribunal or indeed the absence of a code of conduct in this section.
A number of points have been made by Senators Daly and Doyle and Senator Bulbulia. I would like to put Senator Daly's mind at ease because he is a man for whom I have great regard. I know him for a long time. While I have great regard for all the Senators here, Senator Daly and I have reason to know each other for a long time.
Is he a favourite?
No, no. I have no favourites. To begin with, the 1876 Act is a very old Act. Indeed, many of the Acts on which Irish law is based are very old. We have amended many of them over the years and we have changed them. In order to protect the country when the State was founded, in 1922 an Adaptation of Enactments Act was passed which enshrined all existing legislation at that time. That was the basic thrust of Irish law and since then the Legislature, the Seanad and the Dáil, have drafted new Bills and put forward new laws and amended them. The basic Customs and Excise Act which governs the country is the 1876 Act so Customs and Excise law is as old as that. In the course of time we found certain loopholes and the main thrust of this Bill is to plug those holes vis-à-vis prohibited goods with particular reference to drug smuggling.
I want to assure the House that guidelines will be drawn up. It would be unfair to the Oireachtas and to the Legislature if the Revenue Commissioners were to draw up guidelines prior to the legislation being passed because they would be presuming that the legislation would be passed without amendment or discussion and they would be putting us into a straitjacket in that we would have to accept the guidelines. The guidelines will be drawn up. They will include the code of conduct for the Customs and Excise officers. We have a training programme, a re-training programme, constant updating of technology and information services and data bases and we will continue with that.
In answer to Senator Daly, awards are paid for certain seizures. The same applies if a garda does something special. If a person in society does something special that is recognised and an award is conferred. Monetary awards for certain seizures are made by the Customs and Excise in certain cases but not in all cases. I hope that allays any fears Senators may have.
I am delighted the Minister said that the customs officers are getting commission and awards for certain goods because that is the first time——
I do not think it would be commission.
Bounty.
Bounty — whatever term you use, a rose by any other name smells just as sweet. You can talk about a cake. You can talk about a cake of soap or a current cake. It is a question of words, but the hard facts are that these people are getting commission, or bounty, or an award, or whatever words you like to use, but they are being rewarded. Human nature being what it is, that would lead to them going to a lot of trouble in excess of their ordinary duties to find things. That explains why people coming into this country are getting a certain amount of harassment from the customs officers. When I can be stopped at 12 o'clock at night coming on the main road from Dundalk to Dublin and have my car searched, and a colleague of the Minister, a Minister himself, coming from a funeral in Monaghan in broad daylight can be stopped it needs explanation. He told them who he was and where he was coming from but it did not mean a thing. He had to get out of the car and all the stuff was pulled out. In broad daylight nobody is going to come on the main road if they want to bring in anything illegally. That is under-estimating the intelligence of people. It must have been a smugglers' dream when they got the notices in the papers to say that the customs officers would not be on duty on a certain day at certain times. If that is not an abuse of their position, I do not know what is.
I do not want to delay the House in the passage of the Bill but I can appreciate what the Senator has said. First, there are no awards for anything to do with drugs.
I am not talking about drugs.
There are no standard awards as such. There are awards for certain seizures that are made, not for all seizures. We must recognise the vigilance of these people. I appreciate the inconvenience caused. I have been held up by gardaí, customs people and by people in other parts of the country and when I was able to tell them what I was doing, where I was going and that it was very urgent, it did not matter. But I have the utmost respect for people employed in all organs of the State. We are all human beings and we react to different situations at any given time, for many different reasons. But the fact that a person was held up at 12 o'clock at night or 1 o'clock in the morning shows the vigilance of the customs officers. If we were to say they were not there and it was an open, carte blanche situation where people could move to and fro, do what they liked, bring in what they liked where they liked, we would be in a very serious position. I am confident that with the vigilance of the officers here, with the litigation-minded people nowadays, as Senator Bulbulia has said, we need not fear that there will be any excessive use of power. Every person working for the State and most citizens know their rights and the distance they can go and everybody has to protect himself. I am confident that the powers we are conferring are in no way excessive or unreasonable.
I was interested in the Minister's reply to that. It is a compliment to the Customs and Excise people that the fact that somebody was a Member of the Oireachtas would not disarm them in any way, that they would conduct the same search and be as thorough and as vigilant as they would be with Seán Citizen. That is terrific and long may it continue to be that way.
I am intrigued at the area of bounty which is a marvellous word. Thank you for that, Senator Mooney. I assume it arises from the 1876 Act. It has connotations of that era. The Minister referred to the fact that there were awards for certain seizures. Would the Minister refresh our memories and let us know what seizures have awards attached to them? It is interesting and I would like to know.
While I recognise that this is a narrow section it has been a very interesting debate. A few thoughts crossed my mind. I would like to see the very strongest powers possible being allocated to the customs officers. If we look at the development and the lack of control of drugs coming from some continents and the fact that the people involved in "the big time" have no regard for life or limb and seem to stop at nothing, then if a bounty system should operate anywhere it should operate in this section because those doing their duty are up against some of the most ruthless people on the periphery of civilised society. I hope that as far as this narrow section, the control of drugs and search warrants is concerned, the people who fly the flag here doing a job for the State will be given the full support of the law.
The points validly made by Senator Daly really deal with ordinary citizens like ourselves especially those of us who are not near the Border and who meet these officers while we are on a social or business trip. It is a bit of an inconvenience to be held up if one is rushing but we must respect the fact that these people are paid full time to do a difficult job in an area we do not encounter every day. I have always recognised that the Customs and Excise people have strong powers, but there is an area where I support Senator Daly. Sometimes one hears complaints that in the execution of this difficult task the patience of the Customs and Excise people seems to evaporate and they can be very sharp with people. That is inexcusable. They should be courteous but firm. I do not think the Minister can stand over people in responsible positions, which I hope are well paid, treating citizens as if they are criminals. A person is entitled to be looked upon as being innocent until such time as the court finishes with him. That is the main complaint. While it is true that many cross-Border stations are understaffed that is no excuse for the officers to be uncivil. I would be in favour of equipping the Customs and Excise officers in this modern and difficult age with the strongest possible powers to carry out their duties.
I would like to refer to what the Minister said in response to the complaints which I and another Member of the Oireachtas had. When I gave those two examples the Minister said that the Customs and Excise officers were great and that they were doing their duty. Senator McDonald spoke about the awards given to Customs and Excise officers and Gardaí in connection with the seizure of drugs. I would put no limit on that award. Article 15.13 of the Constitution states clearly and categorically that no Member of the Oireachtas going to or coming from the Houses of the Oireachtas can be arrested. Many people might not know that.
Detained.
No, it is not "detained". It is "arrested" provided he has not committed a felony, breach of the peace, or an act of treason. I am speaking from memory but I have studied this article often.
I know that what the Senator has said is broadly correct and I agree with him.
I want to know if the Minister is now changing the Constitution? Is he giving the Gardaí power to arrest a Member of the Oireachtas when there is no such power in the Constitution.
I want to clear this for myself. Is this relevant to section 3 of this Bill? It suits me fine to let this discussion go on, but I want to make sure it is relevant to section 3 of the Bill.
There is no doubt in my mind.
Thank you Senator Daly; that is fine.
Article 15.13 of the Constitution states:
The members of each House of the Oireachtas shall, except in case of treason as defined in this constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.
My memory is not too bad after all.
I know it is not.
On a point of information, in the recent past a Member of the Oireachtas was detained by the Gardaí in the city, was subsequently fined in the courts and was convicted on a charge of speeding. I am not anticipating the Minister's reply but does that not add confusion to the section to which Senator Daly has referred? It is a very technical point. The Gardaí in this instance did not seem constrained by that Article of the Constitution. Perhaps they did not physically detain the Member concerned, but they went ahead and subsequently prosecuted him.
That Article was introduced into the Constitution so that Members would be guaranteed freedom to come and vote in the House. That was the principle of that measure in the Constitution. If a member commits an offence on the way to the House of course he can be charged by the Garda Síochána but he cannot be detained there on the spot.
I hope we can conclude this section without confusing the situation. The Constitution supersedes all law and, of course, the rights of Members of the Oireachtas are acknowledged in every Bill without having them specifically entered. What Senator Doyle and Senator Mooney said is correct. Members of either House of the Oireachtas on their way here to attend a vote can be stopped but, on imparting that knowledge to the member of the garda, he is obliged to allow them to proceed. When I was stopped by Gardaí I told them I was on my way to this House and there was no difficulty. They just let me through.
Why did they stop, you Minister?
There were checkpoints.
The Minister had me worried for a moment.
We are moving into different areas and we may even bring the ire of the Cathaoirleach on us. I do not want to bring the ire of the Cathaoirleach on either myself or the House. The only thing I can say to Senator Daly is that if it was necessary for the Customs and Excise officers to obtain a search warrant for drugs, for the Houses of the Oireachtas the Members would be immune from the search. I hope that will never arise.
Will the Minister clear up this point about going to and from the House for a vote. It goes further than that and covers both going to and returning from the House.
Senator Daly is right. The Article covers Members going to, returning from or in the precincts of either House. We propose in the Bill to insert powers for Customs and Excise officers relating to drugs and prohibited goods. This supersedes all law.
On a point of information, no citizens of this State, irrespective of whether or not they are Members of this House, are ultimately above the law.
Section 5 provides for the issue of a search warrant to an officer of Customs and Excise to search premises or places where books or documents relating to smuggling transactions are suspected of being kept or concealed. It also provides for the seizure of any such documents as well as any smuggled goods which may be found in the course of the search. Under existing law there is no provision for the issue of a search warrant to a Customs and Excise officer authorising him to search for documents per se. Of course, such documents can be vital in the successful prosecution of a case against a smuggler. I accept all that, but my query is do the Garda have this power? I would welcome an answer from the Minister on that specific point. Do the Garda have the powers which are being conferred on the Customs and Excise officers under section 5 of this Bill?
I will go through the main thrust of the section and then I will answer the specific question. The section provides for the issue of a search warrant to an officer of the Customs and Excise authorising him to search any premises or place where books or documents suspected to relate to smuggling are kept or concealed and to seize any such documents as well as any smuggled goods which may be found in the course of the search.
There is provision in existing law for the issue of a search warrant to an officer of Customs and Excise authorising him to search for and to seize uncustomed or prohibited goods. There is also provision for the seizure of documents relating to smuggling which are found by an officer in the course of a search for goods under warrant. That means that an officer has the power to search for goods. If in the search for goods he comes on documents which would prove a point he is also empowered to take those documents. There is no provision under existing law, however, for the issue of a search warrant to an officer of Customs and Excise authorising him to search for documents. While searching for goods he may procure documents but he cannot obtain a search warrant to obtain documents alone. This is a loophole we must plug. Documents relating to smuggling transactions will not necessarily be kept in the same place as smuggled goods. This is a very important point. Both the Garda and Customs and Excise know from experience that this is a very relevant point.
This section will enable a Customs and Excise officer to apply for a search warrant to search independently for documents relating to smuggling transactions. The section will, therefore, remove any obstacle to customs investigations and, in particular, investigations into organised commercial smuggling. Of course an officer will obtain the search warrant from the district justice or a peace commissioner.
Senator Bulbulia asked if the Garda have the same powers. I do not have a direct answer for the Senator but as far as I am aware the Garda have power to search for any person, goods or documents in any case.
I am unsure about that. I accept that the Minister cannot always have an absolute categoric reply on every question that comes up in the course of a debate but I would be obliged if he could have that checked out and get back to me on Report Stage.
I certainly will.
This section deals with the seizure of vehicles. I would like to refer to the abuse by Customs and Excise officers of their powers in respect of vehicles. The Minister referred to the bounty or award Customs and Excise officers get. I think the bounty was cut in the 1876 Act.
A custom officer can stop a person who comes over the Border in a car. If there is a television set, say, or something that is liable for duty in the car and the person has not declared it the Customs and Excise officer can seize the vehicle because the car as the conveyance of the goods is regarded as part of the goods.
That is stated in the Act. If the Customs and Excise officer gets an offer from the person concerned he can settle there and then for a given figure. Does the Customs and Excise officer get that money or if there are two officers is it divided between them? I was a member of the Joint Committee on Small Businesses. When the Customs and Excise officers were before us we had a terrible job trying to get information from them. On a few occasions we had to get the chairman to get replies from them.
I know of a case where a car was seized by the Customs and Excise officers, a Mercedes 280 SE. It would be worth in the region of £20,000. The Customs and Excise kept that in the Custom House for over three years. Because the atmosphere in the Customs House was salty, the car rusted away. There was a tow hitch on the car and every time an auction was held this car was used to convey the goods to the auction. The Customs and Excise authorities are paying £3,000 a week for the storage of seized cars. I am all for Customs and Excise officers seizing cars when they are illegally imported but I am completely against the Customs and Excise officers seizing something when they have no authority to do so. When they find they have no authority they should at least return the goods to the people. There have been cases where Customs and Excise officers used cars they seized for their own private use. The Minister said that there had been only six complaints made to the Ombudsman, out of 2,500, regarding customs matters. I believe that hundreds of complaints have been made but that nobody is taking any notice of them. I would say the complaints went in at the rate of about 10,000 but they were not recorded and did not go through the Ombudsman. After I had raised this matter at the Joint Committee on Small Businesses an auction was held and the cars were sold.
This section relates to the seizure or detention of vehicles. That is fine, but I believe there is a lack of definition in this section. I live very near the Border and I know from experience that it is not unusual for people to hire a public transport vehicle or hire a haulier to smuggle goods across the Border. The haulier could be innocent. For instance, if a person wanted to smuggle into the country an engine for a boat he could get the driver who was bringing across a load of fish to put the engine in the bottom of the boat with the fish. In a case like that, the owner of the vehicle would be innocent.
It is important when legislation is being drafted that provision is made for hauliers and people who are involved in legitimate businesses so that when a vehicle is seized they should be able to resolve the difficulty without having to go through the procedures mentioned by Senator Daly.
I ask the Minister to clarify this point. I realise there is a pretty narrow line because things could swing the other way: if there was a loophole left in the legislation people could use hauliers to do smuggling all the time. That would eliminate any risk involved because people could say they did not own the vehicles. I realise that there has to be clarity and the dividing line has to be identified. I know of a case where the driver of a vehicle took a few pounds to smuggle some goods in and was caught. I would like some recognition to be given to the fact that innocent people can find themselves in serious situations and can have their vehicles impounded for days and possibly weeks, thus causing very big problems for the hauliers concerned.
I agree with everything Senator McGowan said. However, I would like some recognition to be given to the position of people like me, who are in the self-drive car business. If a person to whom a car is hired out goes to the North and he is caught bringing something out of the North that he should not bring out, should the person in the self-drive car business lose his car for a long period?
Many interesting points have been raised. I will cover the main thrust of the section and then I will try to answer the individual points. The section provides that where goods which are liable to seizure or, by virtue of section 7 of the Bill, detention by an officer of Customs and Excise are found in a vehicle or other conveyance, the vehicle or conveyance shall be deemed to have been made use of in the conveyance of the goods and will thus to liable to seizure or detention along with the goods.
Basically that means that if goods are found in the vehicle and it has been mobile at present the Customs and Excise officers have the authority to seize the dutiable goods that have been smuggled in. They can also seize the vehicle because the goods were being conveyed in the vehicle. A vehicle is parked in a car park. The Customs and Excise officers or the Garda — in this case the Customs and Excise officers — believe there are drugs or prohibited goods in it but because it is stationary they cannot touch it. They must observe the person driving that vehicle and they may be weeks or months watching and waiting for the vehicle to be moved. We want to get over that so that they can seize the vehicle if they suspect there are illegal articles, drugs or prohibited goods thereon.
The purpose of the section is to remedy a possible weakness governing the forfeiture of vehicles used to convey uncustomed, prohibited or restricted goods. Where goods are detected being smuggled, the goods together with any vehicle made use of in their importation, exportation or conveyance are liable to forfeiture and may be seized by an officer of the Customs and Excise. Basically that is the situation.
Various points were raised by Senators Daly and McGowan. I want to assure Senator Daly that any moneys being received by Customs and Excise officers at customs posts must be paid into the State Exchequer through the Customs and Excise account. Any bounties or awards paid are based on performance of exceptional detection and successful seizure of dutiable goods coming into or going out of the State. There is a limit to what can be paid to these people. No officer can keep for himself or divide among his colleagues any moneys paid in excise or customs duties. That is totally outside the law and it does not happen. The Customs and Excise officers would not seize any vehicles, goods or otherwise unless they had the authority to do so. As the Senators said, if dutiable goods in a vehicle are smuggled illegally into the country both the goods and the vehicle can be seized.
There is a difficulty with hired cars. I sympathise with the difficulties of garage owners and people in the self drive business. Senator McGowan has proved the point very clearly. People could use hired cars constantly to cross the land frontier, in particular, or leave the country, go overseas, load up their cars with goods, come back and try to get through customs. If the Customs and Excise officers had not got the power to seize both the goods and the car there would be a constant to-ing and fro-ing across the frontier and out of the country. We cannot allow that to happen. Otherwise we would be opening the doors to untold smuggling and untold damage to our economic base.
The Senator alluded to cases where sincere business people had given their cars in good faith to other people to use for their own pleasure for a period of time and then had those cars seized coming across the Border. The normal practice is that these cars would be released on payment of a specific penalty. Usually that would be negotiated between senior Customs and Excise officers and the owner of the car and it would be based on the gravity of the offence, etc. If there was not some penalty — and we regret that it has to be there — the doors would be open for hired cars, vehicles, lorries and pick-up trucks to be used all the time. In order to protect that, the penalty must be there.
I am sorry I have to come back again to the Minister but he did not seem to understand my questions. When I spoke about the self drive cars I knew they had to be seized. What I was objecting to was the amount of time they hold the cars. They could hold them for months or years and there is nothing you can do about it.
The managing director of one of the biggest companies in this country went to the North on business. He won a portable television set in a raffle. He put it on the back seat of his car; he did not put it in the boot. He stopped at the customs to clear his chain of office. When the Customs and Excise officer came out he saw the portable television and asked what it was doing in the car. He told him he had won the television set in a raffle at a function. The Customs and Excise officer asked for the keys of his car. He handed him the keys. He did not know what that meant. When the Customs and Excise officer got the keys of the car he said: "I am seizing this car and the television set unless you pay a fine." The managing director told him to take the television set but not to take the car because it was a company car. It was a Granada worth £13,500.
There would not be much left over——
There would be if our taxes were not so high. However, that is another day's work. To make a long story short he had to pay £100 on the spot and he lost his television set and could not get it back. If that is not abuse of power I do not know what is.
The Minister misunderstood when I referred to the fines which are imposed on the road. I know that money has to be paid because a receipt has to be issued by the Customs and Excise officer. That was not the question I asked the Minister. The question I asked was: was that money divided up amongst the Customs and Excise officers?
I fully appreciate that this is a very difficult area to define and, without repeating myself or trying to hold up the Bill, I want to ask the Minister and his advisers to examine this area. A vehicle may be used to smuggle goods be it a car, lorry, boat or whatever. You would not need to be a scientist to realise that the tendency today is to use stolen or hired vehicles. The people in this business are not fools. The last thing they would do is to use their own vehicles. It is important that there are very clear definitions and safeguards for the innocent party. The Minister said it has be to clear-cut and definite and there can be no easy way out. The innocent party should have some redress without having to sit with chains on him for a long time. Maybe it is not possible to do this but I ask the Minister to at least examine it.
Having recharged the batteries and had some spirits, smuggled or otherwise, I am sure the Minister, together with the rest of us, is feeling a bit better. Before lunch I put a question to the Minister about the car which was seized by customs officers and was used in the Custom House for carting goods around the place. It was held for a period of at least three years and that car as a result of rust the car was worth nothing. Its value fell from £25,000 to zero. I raised this matter at a meeting of the Joint Committee on Small Businesses and action was taken. An auction was held about two or three weeks afterwards and they got rid of the bulk of cars they had kept there. What assurance can the Minister give that cars seized in the future by customs will be dealt with quickly. Customs should process seized cars quickly and return them as soon as possible. I would ask the Minister to expedite the return of seized cars as the cars are depreciating and are rotting away. I think this is scandalous and an abuse of the powers of the Customs and Excise.
I have listened with interest to what has been said, particularly by Senator Daly, who has a very infectious enthusiasm about this difficulty. I sympathise with what has happened and if he gives the details of the case we would definitely have it investigated. I have some good news for him. This year there has been some change in policy in that vehicles which are passing through customs and which are properly licensed, taxed and insured and are obviously conveying non-commercial goods are not being seized, but the goods are and they may be claimed on the payment of the necessary duty. That refers to the television case. Now customs would take the TV rather than the car, if the car were in order. That is the attitude that prevails at present.
Under the law customs officers are fully entitled to seize any vehicle that they are suspicious of, or any vehicle in which there are suspect goods. For example, if they think the goods are dutiable goods on which the duty has not been paid, or prohibited goods, or illegal, or whatever, they have that power. I would not like to see a situation where seized vehicles could be used by the State or any agent, staff, members, or servants of the State in any way to the detriment of the owner or to the supposed owner. We would hope that anything seized could be returned under the best condition possible, but under the law Customs and Excise officers have the power to seize, detain completely and eventually sell if they so wish and if they believe it the right thing to do.
I am confident that as legislation in this field evolves, and as the system improves as a result of the retaining process and the updating of information, that customs officers will find better ways and means to get around the difficulties they encounter. I hope that as a result of this debate on the Bill the customs officers themselves will be able to deal with situations in an easier and more humane manner.
Did I understand the Minister correctly when he said that heretofore in regard to any articles that were smuggled in in a vehicle or brought in without knowledge but were not declared, and the law was, up to what the Minister has said now, that the vehicle conveying the articles was liable to seizure just the same as the articles? Is the Minister telling me that the good news he has for me now is that that no longer applies, that once the vehicle is properly taxed and insured the goods may be seized but not the vehicle. I would be very glad to hear that.
I would not want to mislead the House or, indeed, any member of the public who may be interested in the debate. The position is that under the law as it stands Customs and Excise officers have the right to seize, maintain and detain any articles or vehicles which they suspect are being brought illegally through any customs post or land frontier. The present implementation of the law vis-á-vis customs staff is that where they believe an article in a vehicle is a non-commercial article, that is a gift, or, as was referred to, something won in a lottery or whatever, they are using their discretion to say they are seizing the article until they are satisfied with proof of evidence of sourcing and that they are allowing the vehicle through, but the law has not changed. Their powers of seizure and detention have not changed.
I am not grasping the point. The Minister said that up to the present when a person comes to the customs post with an article, perhaps a television which they had won, or have received as a present, the customs officer may seize the goods and the car, which they are entitled to do under the law and then if the customs officer so wishes he assesses the value of the car and says the person must give him so much and he can take the car away, but he keeps the television set. If I understood the Minister correctly, he said that if it is a non-commercial article, a gift or otherwise, which is in the car the customs no longer seize the car but will seize the article to verify whether it is a con trick or not.
I know that while you are entitled to gifts the customs are entitled to make sure they are genuine because otherwise people would be getting letters about presents every week. However, I am interested in the car. The Minister says that if this article is a gift of non-commercial value, the customs can seize it. I know they can seize it. I know all the things they can do and I know the powers they have and most of them are necessary, but the powers should be used and not abused, as has been done in many cases. In this case if the gift is taken, is the vehicle being allowed through or searched? That is all I want to know. On the one hand it is and on the other hand it is not. Which is it?
I will clarify the point. First of all, anybody crossing a frontier or coming to a customs posts must, under law, declare exactly what they have, their car, their goods or whatever. Whether it be goods they have, or the car they have is hired, is a gift, something they won, or something they got by other means, if they do not declare them they are violating the law. If after due investigation the customs officer is able to get bona fide information to satisfy them that the person driving the car is the owner, or is the person who is in charge or should be in charge of the car, and if the goods in the car are of non-commercial value, or are being brought in for personal and private use, the customs officer has the discretion to deal with the matter there and then, to seize the goods if the person taking them in is not prepared to pay the duty on them, and to allow the car through or seize the car. There is more flexibility in the implementation of the law this year than ever before. Basically, there is more flexibility. Heretofore, there was a strict rule of thumb that the law was applied rigidly, consistently and customs seized the car and the goods. There is more flexibility in the attitude now but the laws are still there to ensure that the customs officers are not the victims of any con trick or anything like that. They can implement the law to as full and as fine a point as they so wish, but they are exercising discretion when they feel they have satisfactory evidence to allow them to use their discretion.
Anybody who brings anything into this country by air must go through customs. If they go through the red light area and declare the article they either pay the duty or it is not allowed in. That is understandable; everyone knows that. But then the Customs and Excise have some tricks. You are allowed to bring in one litre of spirits. If you get a present of another litre you must go to the red light area and declare the spirits. I was told I could not bring in the spirits without paying duty. I said to the customs officer: "All right. I will leave that article there until I am going out on my next visit and I will collect it then". The customs officer came up with the bright idea that if the article was bought in a duty free shop they could not hold it for you and you lose the article there and then.
I had a very simple case. I went to Spain about three years ago. I have an Irish friend over there. On my way out I bought a litre of Irish whiskey to take out to him. When I arrived in Marbella I did not succeed in contacting my friend. I was there for two weeks, I thought I would see him before I went back and I bought a bottle of vodka to bring home. On my way back I did not succeed in contacting my friend and I went through the red light area and declared my bottle of vodka and bottle of whiskey and I explained the facts to the officer, who was not interested. He seized the whiskey and then wanted to take the other bottle as well. I said I had declared it and that my friend would collect it when he was going back to Spain. Customs were not interested. It was bought in a duty free shop and they were not entitled to that.
The Minister says the implementation of the law will be more flexible and that a new system will come into operation, where by people may bring a television set in the car, declare it at customs and pay the duty. There is nothing new about that. I am talking about innocent people who think they can bring in gifts and do not declare them, for example, the man who won the television set did not know he could not bring it in when it was a gift. He need not have stopped at the customs post. He went in and declared a gold chain of office worth a few thousand pounds, which he had declared going out. The customs officer looked out the window and saw a television set in the back seat of the car. If it was in the boot there would have been no problem. The customs officer asked about the television was told that he won it. He gave all the details. The customs officer seized it and asked for the key of the car, a saleman's car. That is what happened in that case. Eventually he paid them £100. They kept the television set and that was the end of the television set.
I think the best thing that can be done in the circumstances is to monitor the flexibility the Minister spoke about over the next 12 months and then you will have something to say after that if it is not being operated to your satisfaction. But the law has not changed.
There are adequate public notices at all customs points of exit or entry, airports, seaports, border fronters and all that. There are information leaflets and documents at all airports and seaports. Public notices are published in the newspapers from time to time. We would be delighted to investigate the television set which was won as a prize and was confiscated. I would be more than delighted to follow it up if the Senator gives the details.
Going into the green channel is an automatic declaration that you have no goods over the limit and that all duty has been paid. Going into the red channel is a declaration that you have goods in excess of the amount allowed. There are differences in the figures allowed. Under Irish law certain figures are allowed and under European law other figures are allowed. Under European law there are specific limits on the amount of spirits, tobacco, cigarettes or perfumes that you can purchase, and you can only have a certain amount of each. All those connotations have to be taken into account. I can assure Senators that if you go into the red channel, declare the exact position and are prepared to pay the duty thereon, the goods cannot and will not be seized. If you go into the red channel and have goods over the allowable limit, the goods will be held and be made available to you on your next trip away. You can re-export them when you are going again. That is the position there.
You can re-export goods?
If you are over the limit within European law the goods can be stored away at the red channel and you can make arrangements yourself to collect them on the way out on your next trip away.
Irrespective of where they were bought?
It would have to be within the Community.
My information from the customs — and they dealt with it that way — was that any article bought that was in excess of what was allowable was not stored. Instead of paying the duty on it you decide to leave the article and collect it on your way out. I was told by customs that those goods were bought in a duty free port they were not entitled to be stored and would not be kept for me. That is the position at Dublin customs.
The difficulty there would be that the customs officers must satisfy themselves as to the amount of duty paid on them originally and their destination, and whether the duty would satisfy the duty demands in another member state. Taking everything into account the Customs and Excise people can hold those goods for a reasonable period to allow them to be re-exported and taken away again provided they meet the duty criteria within each member state.
My goods met the criteria but I was told clearly and categorically by the higher customs officer that they did not. The junior kept me there for about an hour and a half but I was not too put out about time. I explained to the senior customs officer that both the person for whom I bought the spirits and I would be going back in about three weeks time. He said under no circumstances do we keep an article bought in a duty free airport. That was clear, distinct and unequivocal.
I assure the Senator that if he gives us the details of the case it will be followed up.
Section 7 relates to the detention of certain goods and it introduces a time span which is something new because I understand that in the past legal problems have arisen as a consequence of the premature seizure of goods. I would like the Minister to give some indication as to how this created legal obstacles in the past and how this particular section will remedy a problem which needs to be addressed.
This section provides for the detention by an officer of the Customs and Excise of goods suspected of having been smuggled or suspected of being irregularly dealt with for the purpose of exportation and of conveyances of such goods. The period of detention, which may not exceed one month, would enable investigations to be carried out to determine whether the goods and conveyances should be seized or whether they should be released. Where customs detect a clear case of smuggling, there is no problem about seizing goods on the spot. Cases arise, however, where customs may have to carry out an investigation before they can be satisfied whether suspect goods should be seized or, indeed, whether they should be released. At present there may be pressure on customs to seize suspect goods before investigations can be completed because if goods, which later turn out to have been smuggled, are not taken into custody when they are first encountered, it is most unlikely that customs would be given a further opportunity of seizing them. Legal problems can arise from premature seizures.
The proposed detention provision in section 7 should remedy this situation, the limit of one month. Under this section, the decision as to the seizure of goods or release of detained goods must be made as soon as the necessary inquiries are completed or, at the latest, after one month from the date of detention. The period of one month may be needed in many cases to enable customs officers to ascertain whether the goods in question were legally imported or whether they were subject to an attempt at illegal exportation. Any lesser period would be impractical in cases, for example, where inquiries have to be made overseas or elsewhere.
This seems a very sensible provision and one that gets over a particular difficulty. As such it is to be welcomed.
Would the Minister comment on section 8 and broadly outline the provisions which it contains?
Section 8 provides that goods which are imported without payment of duty in contravention of customs law shall be liable to forfeiture. The purpose of the section is to remedy a possible technical lacuna in the present law which might enable smuggled goods to escape forfeiture. The section also provides that any goods which shall be found packed with or used in concealing smuggled goods shall also be liable to forfeiture.
Section 1 (7) (7) of the Customs Consolidation Act, 1876, provides, inter alia, that dutiable goods which are unshipped from a ship or boat without duty being first paid or secured shall be forfeited. It also applies to goods which are imported over the land frontier from Northern Ireland subject to the adaptations which are provided in Article 19 of the Customs (Land Frontier) Regulations, 1968. References to a train or vehicle are substituted for references to a ship or boat and references to the unloading of goods are substituted for references to the unshipping or landing of the goods. There seems to be a lacuna in the present law notwithstanding the adaptations mentioned, in so far as goods smuggled over the land frontier are concerned. That is basically it. We are trying to ensure that every loophole, every gap, every opportunity that has made it easier and much smoother for people to get through the net, to breach the customs law — the first line of defence — undermine the whole economic base of the State, is closed and to make it much more difficult to take goods, drugs, etc., through.
I am not very clear on section 9. It deals with the onus of proof. Senator Mooney on Second Stage spoke about a reservation which he had in relation to the onus of proof element contained in this section. It seems to be a reversal of the onus of proof and since Senator Mooney is not here, and since it obviously raised queries in his mind, with your permission, a Leas-Chathaoirligh, I will just quote from the section of his Second Stage speech which addresses this issue. I quote from the Official Report, column 155, Volume 117, for Wednesday, 7 October 1987:
I was dealing with section 9 of the Bill in which the onus in relation to goods suspected of having been illegally exported and imported rests with the defendant and I was going to say the onus of providing where the goods originated or whether they were lawfully imported, exported or otherwise lawfully dealt with for exportation, is on the persons bringing the proceedings. This has been a bone of contention with me, and I know with many other people, not just as it relates to Customs and Excise but to the Revenue Commissioners and the area of finance gathering in this country. I accept the motives behind the premise, that if somebody is in breach of the law, particularly in revenue matters, it should not be up to the Revenue Commissioners or the Customs and Excise officials to have to prove the case, it should be up to the individual to disprove what the Revenue Commissioners and the Customs and Excise officials accuse them of. While I do not expect that anything I say will change it one iota, it seems to be somewhat draconian and unfair to the vast majority of people.
I had a similar reservation when I came to this section of the Bill. As I said on an earlier section, it is not a question of taking sides. This is a Bill the thrust of which, on all sides of the political divide we are agreed on. So this is why I quote my colleague from Fianna Fáil, Senator Mooney in relation to this matter. I would be very pleased if the Minister could clarify and explain to me the detail of this section and talk generally about the onus of proof and the reasons why it is so arranged.
I appreciate what the Senator has said and I take the sentiments expressed on board. We are not proposing here any new powers or laws that were not heretofore available. We are trying to strengthen existing law to ensure that, particularly for exportation, people will give evidence and co-operate with the Customs and Excise people in proving the source of origin, the legality or illegality of a certain situation. As we discussed on other sections of the Bill, in regard to the necessary documentary evidence, deeds, vouchers, documents, receipts, the onus would be on the person whose goods have been seized to produce the necessary evidence. The Customs and Excise authorities have been put in an invidious situation on many occasions in the past when they were satisfied they had seized goods in a proper manner but then they found, because of lacunas in the law vis-à-vis the documentary evidence, they had not been able to prove to the satisfaction of the courts that they were right in the discharge of their duties. We are now putting the onus on the person who had the goods originally to come up with the different evidence in the case of civil proceedings being brought against him.
This section provides that in proceedings brought by the Director of Public Prosecutions or an officer of Customs and Excise under the Customs Acts in respect of the illegal exportation or attempted exportation of goods, the onus of proof in relation to certain questions shall lie on the person against whom the proceedings are brought. If proceedings are brought against the State relating to goods seized under the Customs Acts, the onus of proof in relation to certain questions shall lie on the person bringing the proceedings.
Basically, it is two-way. If a person is detained when taking goods out of the country the onus of proof is on that person to satisfy the Customs and Excise officers if they are taking proceedings against him under the law of the land or under this or some other Act. Alternatively if a person is taking action against the State for unlawful seizure of goods the onus is on him to come up with the proof. Of course the State would have to co-operate in providing information it may have to enable that person to make his case. That information may be used in judgment against it or in his favour.
The section also provides for a similar onus on a person suspected of having exported goods illegally or intending to export illegally. I hope that clarifies the position.
I thank the Minister for fleshing out the measures contained in that section of the Bill. He has answered the question I raised adequately.
I wish the Minister to speak on this section. There is a provision relating to goods grown — I like that term — in certain areas of the Continental Shelf. I wonder if he or his Department considered the whole area of the recovery of wrecks. I know the broad thrust of the Bill relates to the smuggling of goods and illegal distillation but nevertheless in any Bill relating to goods grown in certain areas of the Continental Shelf we have to consider matters such as treasure trove and the recovery of wrecks. I have in mind things such as the Titanic. With increasing sophistication of research and recovery, it is an area that fits in, to some extent, to this section of the Bill and I am surprised there is no reference to it in this section. Perhaps the Minister can flesh out the section as he sees it and indicate what he thinks about the point I have raised.
I appreciate very much the interest the Senator has shown in preserving wrecks and ensuring that whatever is in our territorial waters is preserved. I am pleased, and I am sure the Senator is aware, that the National Monuments Act, 1987, as amended, has put major powers of control on historic wrecks. The definition of a historic wreck could be a wreck from yesterday or the day before or from 100 or 1,000 years ago. It is a matter of interpretation. That matter has not been considered under this section. We feel that is not the function of this area.
The section provides that goods won from areas of the Continental Shelf, over which Ireland has exclusive exploration and mineral rights, designated under the Continental Shelf Act, 1968, and which were brought directly ashore shall be deemed for Customs and Excise purposes to have been grown, produced or manufactured in the State and not to have been imported. This is to ensure that, for instance hydrocarbon oil brought ashore will not be subject to declaration on entry for customs purposes and will not be liable to customs duty.
Under European law all products which are found on or under the sea bed within member states territorial waters and which are brought ashore are regarded as Community goods and they are not, therefore, subject to customs duty. With the exception of petroleum products the position is generally the same for goods won from the sea bed outside territorial waters, that is, the Continental Shelf. The law states that these goods are considered to originate in the member state which, for exploitation purposes, has exclusive rights over the particular area of the Continental Shelf. However, the European law is silent on the customs status of petroleum products — oil and natural gas — brought ashore from the Continental Shelf. The question is one for individual member states. The present section will ensure that petroleum products won from areas of the Continental Shelf, over which Ireland has exclusive exploitation rights, will not be subject to customs duty or to the normal customs formalities applying to imports.
I thank the Minister for that lengthy response. I can see how the National Monuments Act, 1987, would cater for valuable artefacts recovered from a wreck and brought ashore and how that would not need to be covered by this section. If large quantities of vintage port — it would be very much vintage if it was recovered from a wreck that had been there for hundreds of years — and extensive amounts of whiskey, fine wine and the best of non-perishable produce were brought ashore from the Continental Shelf area or from the sea bed, what would be the attitude of Customs and Excise people and how would this be viewed? I would be interested and intrigued to hear the Minister's response to that.
We are dealing with Customs and Excise officers and Customs and Excise duties. The Senator speaks about artefacts or objects coming from a wreck. All wrecks are covered under the National Monuments Act and anything on the wreck, whether it be fine wine, rum, gin, ale, beer, hops, cider or whatever, would be covered under that Act. Under the National Monuments Act, the law would be such that it would control the removal of any of those items. Both the Office of Public Works, under the Department of Finance, and the Department of the Taoiseach who have responsibility for the National Museum would collectively adjudicate on what would be done in any given situation. In the case of valuable items recovered — it would be impossible to determine their value even though it is presumed that courts and valuers could put a value on them — they would be so rare, so important and so historical that it would be a matter for the law as it stands and the different agencies of State to ensure that all these items were procured for the people of the country because they were in our territorial waters, close to our shores or in the Continental Shelf which we control. They would not come under the normal Customs and Excise duty and therefore they are not covered in this section.
I thank the Minister for his reply. I was not aware that the National Monuments Act covered the fine wines we spoke about. One is tempted to ask if anyone would break open a bottle.
Perhaps the Minister will indicate why he found it necessary to introduce this amendment.
It is a technical adjustment in that there are three Revenue Commissioners. One of the commissioners has overall responsibility for Customs and Excise; there is the chairman of the Revenue Commissioners and another commissioner has responsibility for taxation and so on. In any given situation where there is a conflict — I think this system pertains right across the whole State structure — discretion is given to a particular commissioner to call in a colleague to make a decision. If the two people adjudicating on a matter cannot agree, they call in the third commissioner and the three people make adjudication, by majority or by consensus, after due dialogue and discussion, on a particular matter.
This amendment will facilitate this type of situation and will allow one commissioner to delegate responsibilities to another. If a person wants to go on holidays or if a person retires and there is an appointment to be made to fill the vacancy, it will allow delegation of functions. We want to ensure that the law will be solid and strong in its interpretation and that those functions can be delegated, that there will be flexibility in the transfer of responsibilities, that there will be an opportunity for discussion and dialogue and a consensus of opinion on any given matter. If a case was taken to court and a certain commissioner who had particular responsibility for the case had delegated his functions, we want to ensure that the law covers that.
We will not oppose this amendment. It seems a very sensible measure, perhaps not dissimilar from discussions on the Diplock Courts.
Acting Chairman
Amendments Nos. 2 to 10, inclusive, are related and may be discussed together.
All of these amendments deal with increases in fines. In my Second Stage speech I said it seemed like a good idea to increase the level of fines. They are being increased in all cases from £500 to £1,000. Fines in general should act as a deterrent, should be realistic and should reflect current money values to some extent. I would like to hear the Minister's comments on the matter and perhaps he would give us some indication as to the thinking behind the decision to increase fines for all these different penalties.
As a result of the contributions made by Senators in the Second Stage debate and as a result of the general discussion that has emanated from the publication of the Bill and realising and recognising that money values are much lower today than they were in the past, we feel it is important to update our laws to take into account the changes in money terms and to have an adequate deterrent against those who wish to flout the laws and those who wish to illegally import or export goods illegally. This amendment takes cognisance of those facts. If people do not comply with the regulations they will be prosecuted and will recognise thereafter that it would be foolhardy to persist in trying to flout the law and transgress our boundaries or customs posts with illegal goods.
This section empowers the Minister for Finance to make regulations governing the importation or exportation of goods over the Border with Northern Ireland. I understood the Minister to say we are talking about an area of 20 miles as being the vicinity of the Border and I take it that applies in this section. It also provides that the existing land frontier regulation shall have effect as if it had been made under the section. Perhaps the Minister would clarify precisely what that means.
Of course we have already spoken about the increase in the maximum penalties for contravention. The whole purpose of the section, as I understand it, is to remove any possible doubt about the validity of the existing regulations. It is another attempt to block off a possible loophole in the legislation and it is largely a technical measure. I would be interested to hear the Minister's comments on it.
There is nothing new in what we propose. It is an updating of the laws. I think it was Senator Daly who alluded to the fact that the Customs and Excise Act, 1876, is very old. This is an updating of the Customs and Excise and other laws and sections of laws that have been passed to co-ordinate the whole Customs and Excise laws and to ensure that they are relevant to modern times. The section repeals section 13 of the Adaptation of Enactments Act, 1922 — this was the Act which encompassed all the old existing British laws — and puts in its place a similar provision enabling the Minister for Finance to make regulations specifying Customs and Excise controls in relation to the importation into or exportation from the State of any goods by land.
The section provides that the customs land frontier regulations, 1968 and 1978, made by the Minister for Finance under section 13 of the Adaptation of Enactments Act, 1922, will continue to have effect as if they were made under this section. The section also provides for a maximum penalty of £1,000 for contravening or failing to comply with regulations made under this section. This penalty effectively upgrades the corresponding penalty of £100 provided for in section 13 of the Adaptation of Enactments Act, 1922. It also provides for liability to forfeiture of any goods in respect of which an offence is committed under the section. The customs land frontier regulations made by the Minister for Finance under section 13 of the Adaptation of Enactments Act, 1922, enables customs controls to be exercised over the importation and exportation, both by road and by rail, of goods over the land frontier with Northern Ireland.
The Attorney General considers that the section may not provide a sufficient legal basis for some of the provisions in the regulations and, consequently, it was deemed desirable to replace it with a similar provision which will remedy this possible defect and provide a firm legal basis for the regulations. Basically, it is the restrengthening of the law, a reemphasising of the importance of a co-ordinated approach to Customs and Excise and a co-ordinated effort to enshrine the different sections and the different laws in one clear fine piece of legislation.
I thank the Minister for his explanation. We have no problem in passing this section. An interesting observation is that originally the fine involved was £100. It went to £500 and now it is £1,000. That is some indication of money values, a point the Minister made in introducing his amendment.
This section provides for a general penalty of £1,000 for offences relating to illicit distillation under the Illicit Distillation (Ireland) Act, 1831 — in other words, the moonlighting or making of poitín. It provides that a district justice may mitigate the penalty for these offences to not less than one-half of the full penalty, so we are talking about a maximum fine of £500 in this case. A most common offence committed against the 1831 Act relates to the possession of equipment or materials used in illicit distillation and making, possessing, conveying or selling illicit spirits which currently attract a penalty of £200. District justices are currently empowered to mitigate these penalties to not less than £6.
This section introduces the idea of maximum fines and I am not happy about it. It is always important to bear in mind the fact that the person fined should be in a position to pay that fine. I do not know if the Minister feels the same way about it. What we are doing is increasing the fine considerably in this area. The current mitigation is £6 and we are now bringing in a mitigation of £500. I do not suppose that everybody who is involved in making poteen is barefooted and poverty stricken, but I wonder if this is an excessive provision. I would like to make it quite clear that I do not have a soft spot for anybody so engaged. We could put the whole thing to music and it is considered to be part of our endearing folksy nature. I would like the Minister to convince me that this provision is necessary.
This section provides that all fines or money penalties provided for under the Illicit Distillation (Ireland) Act, 1831, shall be increased to £1,000 under current levels in line with the Intoxicating Liquor (General) Act, 1924, which is a very old Act. It also provides that a justice in the District Court may at his discretion mitigate such a penalty to not less than half the full penalty. Section 39 of the Illicit Distillation (Ireland) Act, 1831, provided for a term of imprisonment of three months or more in default of payment of a fine imposed under the Act for a first offence. This section provides that the term of imprisonment in default of payment of such a fine will be amended to three months or less, which is considered the more appropriate term of imprisonment for non-payment of a fine for a first offence. We are easing the imprisonment demand and we are increasing the fine.
It also reflects the current legal drafting practice of providing for maximum rather than minimum terms of imprisonment. The modern thinking in law is that there would be a maximum limit in both the fine level and also the period of detention and that that gives flexibility to the courts to exercise their discretion in what they will impose as a result of evidence produced. This gives the defendant or the people involved in the court a fairer opportunity in law.
The 1831 Act is the basic legislation governing the question of illicit distillation of spirits. As well as conferring wide-ranging powers of seizure on the Garda and on officers of Customs and Excise it provides, inter alia, for a range of penalties for offences in relation to the unlawful possession of distilling equipment — that is stills and worms — for concealing, possession, conveying or selling illicit spirits and for a range of other similar offences. The penalties range from £60 to £200 and have not been revised since 1924. The most usual offences are possession of or having an interest in illicit spirits or illicit distilling equipment and conveying illicit spirits and illicit distilling equipment, all of which carry a penalty of £200 before mitigation. Under current legislation such fines may be mitigated by the District Court justices to not less than £6. We feel that if the State uses its resources to detect any type of illegal or illicit activities, has carried out a successful prosecution and fines which are imposed are then mitigated to the minimum of £6, it puts the agencies or the organs of the State in a very invidious position. On balancing the demands, the needs and the rights of the people against the resources of the State, we feel that in line with that those resources should be balanced against the fines that would be imposed. It updates the law and makes it a real deterrent rather than a sort of jovial type U-turn.
I, like the Minister, am a Pioneer. We have a common interest, but I wonder how far does that common interest extend. I would like to see the manufacture of poteen legalised as it would be very valuable. I do not want it legalised for drinking purposes because there are adequate distilled spirits available. As the Minister is well aware, poteen is very valuable for people suffering from arthritis and rheumatism, as it kills the pain. I am on the verge of getting arthritis and I may have a vested interest in this — I hope I do not — and if so, I will need some poteen. I would hate to think that a person who manufactures something that would relieve pain for me, or people like me, would suffer a large fine or would be sent to jail. They would be doing something very humane in relieving pain. I know the Minister would have to grant a licence to these people and I know it would have to be controlled but it can be done if the right criteria are used. When it is legalised it could become a great export commodity.
People laughed at a man who appeared on "The Late Late Show" and said he was exporting water. He has since been joined by some more people who supply Tipperary water, Ballygowan water and others.
Déise water from Waterford.
There are possibly many more counties involved. People laughed when this man produced a bottle of water and said he was going to sell it. They laughed at the idea that anybody could sell water. I know there are people in this country who, if they had their way, would bottle fresh air and if you wanted to live you would have to buy the bottle of fresh air, otherwise they would let you die. There is only a very tiny minority of such people.
I would like the Minister to formulate criteria so that a person or persons could manufacture poteen for medicinal purposes. It could also be one of our greatest exports when people in other countries realise its value as a treatment for pains. It would be very good for this country. I would like the Minister to draw the line between the manufacture of poteen for human consumption and for use as a pain killer. It is not going to be easy to find ways to keep it from leaking into the market for consumption. We already have difficulties with, for example, diesel oil. Diesel oil for heating purposes is coloured but for use in a vehicle it is clear and one can detect which type of oil is being used. I am sure the Department and the people who produce poteen would find a very simple way of distinguishing poteen for consumption from poteen for killing pain. It should not be very difficult.
I appeal to the Minister, as one Pioneer to another, to consider this matter. As he mentioned today, we did business many years ago when he was wearing another hat. I am thankful to him for his reception here today. While not wishing to say anything about the other House, this is a civilised House. It is an intimate House. There is always good spirit here and matters are conducted in a proper manner. I would like the Minister to consider the point I raised and perhaps comment on it.
An Leas-Chathaoirleach
Is the Senator speaking about the cottage industry?
Although I cannot speak from the virtuous position of being a Pioneer, like the last speaker and the Minister, I am intrigued at the idea of an application of poitin as a soothing embrocation for arthritis and rheumatism. It warms the cockles of the heart and it soothes the aching joints. Perhaps it is an area that should be passed over to your colleague, the Minister for Health, for his comments.
With regard to the matter of fines, a mitigation to £6 is derisory and certainly brings the law and the paraphernalia of the State into disrepute — particularly Customs and Excise people who may have been involved in tedious and difficult exercises in order to effect a seizure. It would seem to be scornful of their clever detection and hard work in tracking down and following the haze of blue smoke and scrambling up the mountainside and all the rest of it. It is important that fines should be a deterrent and should reflect current values of money.
In the past the maximum penalty was £200 and the mitigation was £6. Now we bring the penalty to £1,000 and the mitigation is increased to £500. Is that percentage increase not excessive? Does the Minister feel that by agreeing to ease the area of imprisonment and upping the fine and the mitigation level of the fine to such an extent that there is something almost contradictory in that?
I thank Senators for their contributions to this section. I sympathise with Senator Daly. I hope he is not the victim of a crisis.
Indeed.
I know a medical man with whom I will have a private chat and we might come up with an alternative to the poitin.
Is it the copper bracelet?
I must take on board what Senator Bulbulia said. It would be expected of me that I would consult with the Minister for Health. Even though poitin has its medicinal contribution to make it also has very serious health implications, as many people are well aware. The difficulty is that it competes with legal excise-controlled distilled liquids and, as such, is able to make massive amounts of profit which are not making any contribution to the State. There is no analytical or laboratory control so nobody can be certain what is in it or what are the levels of strength, so it presents a very serious health hazard. We have to take into account the fact that the law is old and that vast profits can be made in a very short period.
We updated the law because when the original law was passed the system operated in the distilling of illegal spirits was archaic, slow and cumbersome. That system, even though it is illegal, has moved with the times, is very sophisticated and modernised and has the capacity and ability to deliver a huge volume of illicit spirits in a very short period. Taking all the advances into account, the fact that the law is so old and that the fines are so low, the House should accept our proposal to increase that fine to £1,000 with a minimum of £500 mitigation fee. We think this is needed.
I hope I have answered all the points. Of course the State, the State agencies, and I can assure Senators the Government, would be only too delighted to consider any project put forward in a proper documented manner for legitimate production in this country. Anybody who wishes to put forward any proposal for any type of production at any time will get the utmost co-operation from the Government, the State agencies and the various Government Departments. If anybody has any ideas in that regard they can feel free to express them.
Finally, as far as I know the Oxford dictionary defines poitin as an illegal, illicit spirit. I know that recently a company in Northern Ireland were selling their product under the brand name New Poitin but I think the courts in Northern Ireland ruled against that and prevented the word "poitin" from being used.
Section 16 amends section 31 of the Finance Act, 1929. In the Table to section 16 there is a reference to giving Customs and Excise officers powers to demand the production of or to inspect or examine any book, account, letter, voucher or other document if such officer has reasonable grounds for suspecting fraud in connection with any entry, etc.
Have the Garda got these kinds of powers? It seems to me that the question of confidentiality arises here if there are documents, for example, from accountants and solicitors relating to a particular matter and such documents of a personal nature can be demanded by Customs and Excise officers. Is there a breach of confidentiality involved? Do the Garda have precisely the powers which we now intend to give under section 16 to Customs and Excise officers? If they have those powers I do not really have a quarrel with this section but, if they have not, I would be disturbed?
If I interpret what the Senator says correctly, the Garda would not have the specific powers we speak about here because they would have no function in the exportation or importation of goods unless they were called in by Customs and Excise officers to assist. What we want to do here is to provide the converse of the present situation vis-à-vis Customs and Excise. Regarding dutiable goods coming lawfully into the State, even though duty has been paid on them, Customs and Excise officers have power since 1876 to remove, detain and seize any books, deeds, documents or vouchers pertaining to those goods. The difficulty concerns prohibited goods, drugs or illegal goods as they have not the same power and we must balance the legal side of the coin against the illegal side. They have the power on one side and they have not got the power on the other. In order to be able to establish the source of these goods, who is responsible for taking them in, the communication, whether it be by letter, telephone, telex, or whatever, or any shred of evidence available to prove a case, the customs officers should be in a position to seize these books, documents and so on. It is in order to update the law and to ensure that the law is fully balanced, with the dutiable goods on one side and on the other the non-dutiable goods, illegal and prohibited goods, that we want to introduce this legislation. I am confident that the Garda have sufficient powers of search, arrest and seizure in other cases. But specifically it would not cover them in this matter unless they were called in by customs officers.
On a point of clarification, I understood — perhaps incorrectly — that this Bill was to give extra powers to customs officers and equally the same powers to the Garda.
The purpose of this Bill is to give the same powers to customs officers in specific situations as the Garda have. A garda can be asked to and may at the request of his superior officer or, indeed, at the request of Customs and Excise officers, act as a customs officer himself. That flexibility is there. The law covers the Garda in that situation.
In this instance, as I understand it, we are giving to Customs and Excise officers additional powers over and above what the Garda have. This is an additional power. In the case of somebody who subsequently is found to be innocent, for example, if there is close examination and a seizure of documents, letters, correspondence and data relating to goods which are allegedly smuggled, is there not a danger that there will be a breach of that person's right to privacy and to confidential dealings which that suspect person has with various professional people who are advising him or whom he employs, such as solicitors and accountants. I think there is a danger here of an over-intrusion which could in the long run turn out to be excessive and damaging and a breach of confidentiality.
I hope there will be no breach of confidentiality or invasion of privacy. The powers already exist for dutiable goods. What we want is to provide the same powers for illegal prohibited goods. The documents seized can only be used for Customs and Excise purposes and for no other purpose. Any person who finds his privacy invaded or if there was a breach of confidentiality would have recourse to the law through the Revenue Commissioners, the Ombudsman and ultimately the courts. I do not visualise that happening and I am confident that it will not happen. I hope it will never happen, but one never knows. I share that concern. It is a very minor change. It is a technical change transferring equal powers vis-à-vis dutiable goods to the officers for illegal prohibited goods, drugs, etc.
As in other areas of the Bill we must always remember that the possibility of abuse exists and must, of course, be guarded against particularly at this stage in legislation when we are examining minutely every facet of every section of the Bill. I am concerned about the possibility, no matter how faint it may be, of a certain abuse. We have no data protection legislation as yet in this country. It could be that, in the process of investigation, access could be had to confidential information. That is a breach of a person's right to that confidentiality and privacy and we have to guard against that.
May I ask the Minister before Report Stage to have a very close look at that section? He admitted the faint possibility that there might be a difficulty in this area. May I ask him please to look at it again with his advisers to see if the reservations which I expressed and the queries which I have are valid and if they can be met in any way?
I will be only too delighted to have another look at the queries raised although I would not want to create any doubt in anybody's mind and I hope I did not create that doubt. A vigilant customs officer on duty at a customs point may detect that prohibited goods or illegal objects are being brought into the country. He may be able to trace connections or alliances that abetted successful entry into the State. We must ensure that there is no loophole in the law that prevents customs officers, either in their own right or in co-operation with the other State agencies, the Garda or the Army if necessary, from investigating any information, data base, books, vouchers, or whatever, that would lead to a successful prosecution of the person who will be taking these to the first line of defence. Of course I will have another look at it but I want to assure the House that this is a very important technical adjustment and I ask Senators to pass it.
I thank the Minister for agreeing to have another look at this. We will take the opportunity to discuss it on Report Stage to see if he has got any further views or what the fruits of his close examination have revealed. In the interim we will be happy to pass this section.
I would like to know from the Minister when we will take Report Stage?
In view of the excellent contributions that have been made by many Senators and in view of the many questions that have been raised, I would be grateful if the House would give us approximately two weeks to research and come back with any solutions to the proposed suggestions that have been put forward.
We will be meeting in two weeks' time. We will meet on Tuesday, 3 November, and we will order it for that day. If the Minister is not ready that day we can take it on Wednesday.