Seanad Éireann - Volume 117 - 14 October, 1987
Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
Mrs. Robinson Mrs. Robinson
Mrs. Robinson: I cannot but feel sympathy for the motivation which prompted Senator O'Toole to raise the matter which was discussed earlier on the Order of Business. I hope the Leader of the House will bear in mind that Senators want to discuss the more important issues affecting the country at the earliest possible opportunity.
I share the concern expressed in the House about the necessity for greater efficiency and greater strength in the legislation controlling the importation and dissemination or the pushing of drugs in this country. I have decided to contribute to the debate on this measure because I am particularly concerned about the nature of the Bill for reasons I will explain. The Bill, of course, as the Minister for Finance made clear when he introduced it, is identical to a Bill which had been tabled by the previous Government. Therefore, it is a measure which is supported, in effect, by the previous Administration and by this Administration. What concerns me is that it comes before this House as a Customs and Excise measure. Its precise title, as the House will see is the Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987. It is brought before this House and conducted through it by the Minister for Finance and his Ministers of State. If this Bill were to be entitled the Criminal Justice Bill and if it were the Minister for Justice who came into this House, there would be much closer attention to the small print of the Bill.
In my submission, it is necessary to look very closely at the small print of this measure because it proposes to broaden  very significantly the individuals, the personnel, who can exercise on behalf of the State very important powers: the power to arrest without warrant; the power to detain for a certain period in undisclosed places; the power to search; the power to apply for a search warrant; the power to enter premises forcibly, if necessary, to exercise those powers. These are powers which hitherto we have considered should be placed under the direct authority of the Garda Síochána and, indeed, in placing them in the hands of and under the authority of the Garda Síochána we have been concerned, and I think properly concerned, to ensure that there are very strict controls over the exercise of those powers.
Those controls are necessary both for the authority and responsibility of the gardaí concerned and for those against whom those powers will be exercised or directed. It is fundamental to a democracy that there are very serious checks and balances in the exercise of any such powers. This Bill comes before the Seanad without any public attention. I would say there are very few people indeed who are aware that this Bill is being discussed in the Seanad at the moment. There are very few people who are aware of the powers it is proposed to extend to public servants through this Bill. Very little attention has been paid to the implications for civil liberties in this country and for proper standards in relation to arrest without warrant, detention, applications for search warrants, forcible entry, if necessary, into premises for the purposes of search.
As I have made clear, I am not ambivalent or ambiguous on the need to control drugs. I support in the strongest way the necessity for controlling and having adequate powers. I am not satisfied about the need for this very broad extension of the kind of personnel who will be involved in exercising those powers. Perhaps the Minister in his reply to the debate can explain why he feels it necessary to broaden the net in this way, but I certainly would require an explanation. At the moment I do not see the necessity  for the kind of blanket extension proposed in this Bill.
Turning to the precise text of the Bill, it is clear that it bears out the description I have been giving. First, in section 1 there is a very broad definition of what will constitute an officer of Customs and Excise. That can include a member of the Garda Síochána but it also extends to, and I quote:
any person in the public service who is for the time being employed in the prevention of the illegal importation or exportation of goods.
It may be somebody who is a full time officer of the Customs and Excise or it may be somebody — and I think we will see this increasingly — diverted from some other Department, redeployed from one of the State boards that are being wiped out almost on a daily basis, or whatever. Any person in the public service could potentially be a person exercising the kind of powers we are talking about under this Bill.
Those powers are, as I say, very widespread. If we look at section 2 of the Bill we see that an officer of the Customs and Excise, as so defined, could be a Garda Síochána, an existing full time member of the Customs and Excise, or any other member of the public service for the time being employed in the prevention of the illegal importation or exportation of goods. Under section 2 that person has powers of search in relation to controlled drugs.
If we look at section 2 (1) (i) we see that that person can search an individual and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for carrying out the search. What is “reasonably necessary” in relation to detaining for the purpose of the search? I ask that question in all seriousness because the section itself talks about a number of different searches which can be carried out. There can be a search of the person which is the search referred to in that paragraph. There can be searching of vehicles, vessels or aircraft. There can also be the examination of other items. What is the  reasonable period in which a person can be searched in this manner? The real scope of it is that when members of the Garda under criminal justice legislation arrest and detain somebody, even under the most recent Criminal Justice Bill, there are very serious immediate consequences and very serious standards apply. It is not at all clear that any of these standards would apply to a person detained for the purposes of section 2 of the Bill. It is necessary for the Minister when responding to the Second Stage debate to give very full particulars of the way in which the power will be exercised.
Under section 3 of the Bill it is proposed that an officer of Customs and Excise, as so broadly defined, will have power to apply for a search warrant in relation to controlled drugs. Again it is necessary to ask why it is felt to be appropriate and apparently desirable that it should be an officer of Customs and Excise who would have this power? If the application for a search warrant is being made to a District Court or to a peace commissioner, time will have elapsed. This is not something that has to be done at the point of entry by an officer of Customs and Excise. It is something that requires a second stage or a follow-up stage. I am not against this second stage. Obviously, like any Member of the House I can envisage circumstances where it would be necessary to obtain a search warrant. Why is it considered to be appropriate to extend the power to apply for the search warrant to the broadly defined public servant? In section 3 (3) it is clear that the Garda may not be involved at all in this. There may be several public servants coming to act on the search warrant and if necessary forcibly enter a person's house without any involvement at all of the Garda Síochána. Section 3 (3) provides:
A search warrant issued under this section shall be expressed and operate to 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, at any time or times within  one month of the date of issue of the warrant, to enter (if need be by force) the premises or other land named or specified in the warrant...
I would like the Minister to tell the House why it is framed in such a way that it can exclude any involvement of the Garda. A month afterwards there might be a situation where officers of Customs and Excise are forcibly entering premises on foot of a search warrant without any involvement of the Garda. It brings home just how broadly we are casting the net of powers to be used and potentially, therefore, powers which can encroach upon the civil liberties of citizens. It is important that we understand the broad scope being given and that we ask questions as to why an officer of Customs and Excise would not at least have to have with him a member of the Garda Síochána. Why would he not be required to have with him a member of the Garda Síochána if he was intending a month later to forcibly enter the property of somebody? Surely that would be an appropriate and necessary safeguard.
Section 3 (4) provides:
Where any premises or land is entered pursuant to a warrant issued under this section, the officer of Customs and Excise named in the warrant may do either or both of the following—
(a) arrest without warrant any person or persons found on such premises or land for the purpose of searching him or them,
(b) 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.
Again without any necessary involvement of the Garda Síochána this officer of the Customs and Excise can arrest without warrant and can hold such a  person for an undefined time in the pursuit of that.
One might ask, for example, if we are taking about a sufficient lapse of time to go to a justice of the peace, or a peace commissioner, for a search warrant. Why not also require that a warrant be obtained for arrest? Why extend an arrest without warrant power in the circumstances if it is not necessary that the Garda themselves be involved in this. I particularise the kinds of powers that are envisaged here because I think it is extremely important that we are vigilant in this House, and hopefully in the other House and we do not allow legislation to slip through brought in by the Minister for Finance which would get a much more vigilant and strict scrutiny if it happened to be legislation introduced by the Minister for Justice. There is a completely different approach. It is not appropriate for Members of the Dáil or Seanad to say: “Oh, well, we did not really notice; we did not really perceive.” We must be just as strict and just as demanding of the Minister when he replies to this debate as to why he feels it necessary to have these powers, to extend the scope of these powers and to do it in a very open ended way with a lack of definition. Obviously that is something that can be looked at on Committee Stage.
I have two other relatively brief points to make on the Bill. The first is in relation to section 12 where the Minister proposes to both confirm and extend power to make regulations specifying Customs and Excise controls which would apply generally to Customs and Excise. This is not necessarily in any way related to the problem of drugs. It is a broad section applying across the board. I would like to ask the Minister when he is replying to the debate to confirm that the powers which are referred to here are compatible with our membership of the European Community? I say that because it does seem that section 12 (2) (b) and (c) are very broadly cast. Section 12 (2) (b) would allow the Minister by regulation to:
 Prohibit the importation into or exportation from the State by land of all goods or any classes of goods except by such routes within the State or at such places on the Land Frontiers, and on such days and during such hours, as may be prescribed,
That could be a quantitative measure, or measure having an equivalent effect. It could be a restriction which would not be empowered under Articles 30 to 34 of the European Economic Community Treaty. Why does the Minister want to have power by regulation to regulate the place of entry, time and the days for particular types of goods? It may be that there is every good reason for that but it seems to be very broadly cast as a power. On the face of it it seems to be a power that would infringe the principles of the free movement of goods which are part of our obligations under the European Community.
Under section 12 (2) (c) it is provided that the Minister can:
Prescribe the places where, and the form and manner in which, the entry of goods imported into or to be exported from the State by land should be made and the duties and taxes on such goods shall be paid,
If it was provided that goods could only be imported into the country through some obscure port where there was no good connection by land onwards, that would seem to be a quantitative restriction on imports such as would be challengeable under the European Community. It is a very broad power. It seems to empower the Minister to do that if he so chooses. I would like an explanation of why that section is drafted as broadly as it is.
The other section I wanted to comment on briefly is section 19 which is substituted for section 29 of the Finance Act, 1971. It relates to persons who enter the State and do not declare what they bring with them. Section 19 (3) states:
Any person failing to declare any thing or to produce any baggage or thing as required by this section shall be liable to a penalty of three times  the value, including any duty or tax chargeable thereon, of the thing not declared or of the baggage or thing not produced, as the case may be, or £100, whichever is the greater; and any thing chargeable with any duty or tax which is found concealed or is not declared and any thing which is being taken into or out of the State contrary to any prohibition or restriction for the time being in force with respect thereto shall be liable to forfeiture.
I want to query the wording of that because it seems to be a provision imposing a strict liability. The provisions as to what an individual can bring into the country changed quite substantially over the years. Whether it is an Irish person returning to the country or a visitor to the country, it is very often difficult to ascertain when coming into the country precisely what the personal allowance is. Sometimes at Dublin Airport there is quite good literature available but at other ports of entry it is not so easy to ascertain exactly what the personal allowance is. I simply ask whether it is intended that there should be a very strict liability — it seems to be implied by the wording — or whether the Minister accepts that the offence is committed where a person knowingly brings in goods of a value which exceeds the personal allowance. If not, and if it is intended to impose and to continue a strict liability in that matter, more steps need to be taken at the ports of entry to make it perfectly clear what personal allowance a person can bring in. However, that is a detail in comparison to the importance of the other provisions.
I propose to table amendments in relation to the sections on the powers to be exercised by officers of Customs and Excise but in the meantime I will await a fuller explanation from the Minister of why these powers are sought in the Bill.
Mr. Mullooly Mr. Mullooly
Mr. Mullooly: I welcome this Bill, the main purpose of which is to give additional powers to Customs and Excise officers which will enable them to tackle more effectively the problem of drug  smuggling. The additional powers which are proposed in the Bill were recommended by the Joint Committee on Crime, Lawlessness and Vandalism and they are basically similar to the powers which were conferred on the Garda under the Misuse of Drugs Act, 1984. Officers of the Customs and Excise must, as the Minister said, be regarded as forming part of the first line of defence against the illegal importation of drugs. Therefore, it is of the utmost importance that every possible way of strengthening the first line of defence should be considered. I was pleased to hear the Minister say that a five member full time drugs unit is already operating within the customs service. The establishment of such a unit was recommended by the committee and I welcome the fact that this recommendation has been implemented.
I was also pleased to hear the Minister say that all members of the Customs and Excise service who are engaged in the examination of passengers and goods at entry points to the State are given special training specifically in relation to the detection of drug smuggling. Together with other speakers I sincerely hope the the additional powers provided for in this Bill will result in an increased number of detections and seizures of illegally imported drugs. Until such time as we succeed in curtailing the supply and availability of these substances, the incidence of abuse and addiction will continue to grow. Apart from the tragedy of drug addiction for the individuals involved and for their families, I would be interested to know if any serious attempt has been made to quantify the cost to the State of drug related crime and the cost to the health service of dealing with the problem and the consequences of drug abuse in Ireland.
As well as providing additional powers for Customs and Excise officers in relation to drug smuggling, the Bill makes a number of other amendments to existing Customs and Excise legislation. Some of these amendments are of a very technical nature but some are of general interest. For instance, the Bill provides for an increase in a number of penalties,  including the penalties for illicit distillation, and it also provides for a strengthening of the law in relation to smuggling generally. As far as the increased penalties are concerned the only question to be asked is whether they have been increased to a level which will ensure they have an effective deterrent value. I gathered from the Minister's statement that he will be proposing increases in some of the penalties on Committee Stage. I welcome this.
The provisions in the Bill to provide for some strengthening of the law in relation to smuggling generally are also to be welcomed. As the Minister pointed out, smuggling damages local retailers, wholesalers and manufacturers and robs the Exchequer of vital revenue. In recent years many businesses have suffered very severely and some have been forced to close down as a result of the extent of cross-Border traffic in certain commodities. Businesses involved in the electrical goods area have been particularly hard hit. While the 48 hour restriction which was contained in the budget has had very beneficial effects for small businesses in the Border areas, the problem of commercial smuggling of certain goods is still widespread and is doing untold damage to the economy. Any positive steps which can be taken to deal with this problem are to be welcomed.
I conclude by echoing the reservation expressed by Senator Robinson on section 3 of the Bill. The Explanatory Memorandum states:
Section 3 provides for the issue to, and execution by, an officer of Customs and Excise of a search warrant authorising him to search premises or land for controlled drugs which were illegally imported or intended to be illegally exported, or for documents relating to such drugs. The section also empowers the officer who executes the search warrant to arrest any person found in the place being searched and to search that person.
I can see cases where it would be desirable that customs officers would have such powers but I believe that such  powers should be exercised only by Customs and Excise officers in exceptional circumstances and, wherever possible, such officers should be accompanied by members of the Garda. The powers laid down in that section should be exercised by members of the Garda. If at all possible we should avoid involving customs officers in cases which could be dealt with by members of the Garda. Those are the few points I wish to make on the Bill.
Mr. J. Daly Mr. J. Daly
Mr. J. Daly: First, I am opposed to the powers in this Bill. The views I am about to express are not necessarily the views of the Fine Gael Party. I was delighted when the Garda got extra powers because the Garda and the Garda Drug Squad are the most dedicated body of men. They work round the clock every day. They have done a great job and are to be highly commended for it. I am sorry I cannot say the same about the customs officers because the customs officers are an irresponsible body who should not get any more powers as they abuse the powers they have. A few years ago for the first time ever the customs officers went on strike. The Garda and the Army cannot go on strike but the customs officers went on strike. We are told that to strike is the workers only weapon and in certain circumstances I would not be against strikes. The Customs and Excise strike was so serious that they left the ports without any guard whatever.
The worst feature was that they notified the media a week in advance of what days they would be on strike telling all and sundry that there would be no customs officers on duty. Enough drugs could have been brought in while they were off duty to do this country for the rest of our lives. They could have been stored and we could have had the biggest supply in the world. I do not know whether or not they came in. Many customs officers must be family men and they must realise that the drugs brought in could be used by their own children. How a body could be so irresponsible as to go on strike, thus opening the floodgates, and to indicate by way of public  advertisement on radio and in the newspapers that they would not be on duty on certain days for certain hours is beyond me completely. To give those people any more powers would be ludicrous.
I may be told that a similar Bill was brought in by a Fine Gael Government but it did not get through in our time. If this Bill had been brought in while we were in power I would have had the same objections to it and I would have said the very same things. There are a few things I cannot understand about it. Under section 2 the customs officer is given the power to stop and search. Customs officers have this power already.
I was at an evening race meeting in Dundalk. I went for a meal afterwards and stayed with some friends. I was on the main Dundalk-Dublin road at about 2 a.m. and it was by the grace of God that I did not kill two of those people. They were out on the middle of the road waving a flashlight. There was no sign saying: “Prepare to stop” and I could have killed them. If I had killed them I do not think I could blame myself because the only notice I had was a flashlight about 100 yards away from where I was. They told me they wanted to search my car. They asked me where I was coming from. I told them I was coming from Dundalk. They said they had stopped a number of other people coming from the races who told them they had not made any money. I told them I had not made any money either but that I had a few bookmakers' tickets as evidence. They then told me to open the boot of the car. I did so and there was nothing in there. They then told me to go on home. I know that a number of Members of the Oireachtas who were coming from a funeral in Monaghan were also stopped. They had to take their baggage out of the car so that it could be searched. This is going on constantly. I am not objecting to this because of the smuggling that is going on between the North and the South. I am, however, objecting to people looking for powers which they have already or else these people are carrying out these searches illegally. It is  one or the other. To give these people extra powers is crazy.
Like many other people I am against drugs in any shape or form. There are things in the world which I like and things I dislike, things I love and things I hate but I despise drug pushers and drug dealers. I do not think any penalty is hard enough for these people. I would not like to say anything that would be of any help or encouragement to such people. But I object to customs officers being given any extra powers or being put on a par with the Garda who are dedicated and devoted to their job. The Drug Squad and all other members of the Garda Síochána are trained to exercise these powers. As Senator Robinson said there could be deployment from other Departments in which case spare civil servants might be put in and given these powers. It is a shame and I do not think they are entitled to extra personnel because they are already doing things they should not be doing.
I know of a case in which a customs officer seized property without checking whether it was brought in through the ordinary channels or whether duty was paid on it. When the owner of this property discovered through a note from the customs officer that his property had been taken in his absence, he telephoned the higher customs officer in Limerick. He told him the date on which it was imported and gave him the numbers of the invoices and receipts. He was told they would not be accepted over the telephone. The customs officer could have lifted another telephone and found out whether these were in order but he did not do so. He had to get a photocopy of them. He then informed the owner of the goods that he would have to collect them himself within the next few weeks or they would be sold. If customs officers can engage in such activity without authority, if they do not check out what they are supposed to check and if they will not accept the evidence of the documents of their own Department over the telephone, I think we have too many customs officers. Therefore, I am opposed to these people being given extra powers  because I believe they have too many powers already which they are abusing.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Senator John Robb.
Mr. Harte Mr. Harte
Mr. Harte: I am not questioning the rulings or the behaviour of the Chair but I am at a loss to understand what is going on. The first speaker here was a Fine Gael speaker, Senator Doyle. It then went across the House. There will be a third Fianna Fáil speaker before I get in, when Senator McGowan speaks. I should have come in before Senator Daly. That is the procedure as I understand it, that it goes back and forward across the House. First of all Senator Doyle spoke. It then went across to Senator Fitzgerald. It came back to Senator Robinson, went across to Senator Mullooly and it should have come back to me. It came back to Senator Daly and now Senator Robb is being called.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: As the Senator knows, the Chair is the sole arbiter of order. I have tried to keep the debate going in accordance with the normal procedure across the House.
Mr. Harte Mr. Harte
Mr. Harte: It has gone outside the procedure.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: It has gone across to Senator Robb now because he is sitting on the other side of the House. It goes back to you next, according to the list I have — there is no change in the procedure. I assure the Senator of that. I am following the normal procedure and I am following the list as notified to me. I can only take Senator's names when they indicate that they wish to speak. I have to mix that with moving from one party to another. I shall certainly call you after Senator Robb.
Mr. Harte Mr. Harte
Mr. Harte: I want Senator Robb to speak. I do not want him to be distracted. I do not want Senator McGowan to be distracted. I want to know why I was not called on the basis of the fact that when  it came back across here we had already had a Fine Gael speaker and a Labour speaker has not been called yet. My name is down.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Yes, your name is down. Senator Robb.
Mr. Robb Mr. Robb
Mr. Robb: With all due deference to the Chair——
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: On the Bill.
Mr. Robb Mr. Robb
Mr. Robb: On the Bill. I suggest that if Senator Harte is pressed for time I will certainly defer my contribution until later.
Mr. Harte Mr. Harte
Mr. Harte: The Senator is very welcome to go ahead.
Mr. Robb Mr. Robb
Mr. Robb: I appreciate that very much. My contribution will be brief. I will start by taking this opportunity to relate the story of a trans-Border brush with the Customs and Excise. About three or four months ago I was telephoned by a very distressed schoolmaster in the town of Ballymoney, a very responsible citizen who has a part time hobby of making safes. You may very well think that the making of safes in Northern Ireland could be a risky business. It may be a risky business in Northern Ireland but it is an even more risky business to happen to have one of the safes in which you have an interest sitting in the back of your car when you try to penetrate the Republic of Ireland.
This unfortunate individual was telephoned on 24 August last year by the manager of a football side in Belfast and asked if he could obtain a special safe as the football club had been ransacked. He said he would do his best. He went to inspect the situation and found that an under floor safe would be suitable. He understood that it was possible to get one in the town of Cookstown. He set off with his wife intending to go to Cookstown and then go on to Monaghan to spend some time with an old friend who had recently suffered a stroke and with whom they spent a week nearly every year of the  summer holiday. He saw this safe in Cookstown. It did not have a lid but he said he would take the safe anyway and he paid £80 for it. He noticed that on the side of the safe there was a label which said the value was either £185 or £158 — he cannot remember which — plus VAT had it had the lid attached. Being a handy person and having spare lids he said he would put it in the back of the car and take it back to Ballymoney that night, fit it and take it to Belfast the following day. His wife asked him if he was wise to take it in the car going across the Border but he said there would be no problem because if he could not take it across he could leave it at the Border or, if they insisted, he could take it to a house nearby and leave it there. He eventually arrived at the Border post near Midleton and a young customs official came out and asked him if he had anything to declare. He said he did not wish to take anything into the Republic of Ireland which he was not permitted to take.
Senator Robinson alluded to the difficulty of knowing what is permissible and what is not permissible. I do not think it is reasonable to expect an ordinary member of the public to have in his head the list of what should or should not be directly declared. The safe was sitting in an open boot, painted blue which could be clearly seen from both sides of the car along with some tools he intended to use when he went back to install it the following day. He got out of the car and the young customs official asked what it was and he said it was a safe and told him the story. He said he would have to speak to the boss. My friend thought that was reasonable. He was then called in to see the boss. The boss got out some papers, started writing into them and said: “Your car and your safe have been seized”. Blunt. He thought this was a joke. He said he had explained his situation to the young customs official. He said he could leave it there and that he was prepared to put down a sum of money, if they wished, as a token of intent and he would collect it on the way back, that he could go back into the North and leave it in the house, or he could return to the North  straight away but that there was no question of it being smuggled.
To cut a long story short the key was taken out of his car, the safe was lifted and he was told he would have to pay £80. He produced his cheque book to pay the £80 as a good Northern citizen obeying the law although he felt fairly aggrieved, and he was told they would not accept his cheque as they wanted it in punts. He then had to walk to a shop — and I thought it was a very funny side to the story that in a sweetie shop the punts were readily available for a Northern cheque — and he returned with his punts which he handed over. That is the state of play at the minute. That man went back to Cliftonville football club in Belfast and installed the safe and I have a letter from the manager of the club to say that was done.
I had intended to raise this with the Customs and Excise. I tried to get an appointment some weeks ago but it was difficult. I am raising it now because I believe it exemplifies two things: one the importance of the discipline, training and approach of Customs and Excise officers but, more important at this very sensitive time, the way in which people travelling across the Border are going to be treated and understood. I believe if that man had taken the case to law it would have been a difficult one for Customs and Excise to have sustained. I say that to put it on the record.
I have travelled across the Border, or what is called the frontier by some Unionist politicians, as often as anybody in this House and the standard of performance there varies enormously. I do not think one can blame the individuals because the task is incredibly complex. If you come via Dundalk you will invariably find a large number of cars and sometimes almost an equal number of lorries, and you will see one foreign customs official doing his best but — and this reflects on the training — not always giving the impression of an efficient, alert, disciplined service. That is a personal impression and totally subjective. On the other hand, the task is so vast for the individual that it would be very surprising,  indeed, if it could be faced on a cold morning in the rain with any great degree of enthusiasm. Every now and then there is a sudden burst of enthusiasm and you are out of the car at the drop of a hat and the boot is being searched.
Two weeks ago I was coming to Dublin with a little history of the north channel which connects Scotland and Northern Ireland to give to a few people or I had hoped even to sell to a few people. As I approached the Border I thought “Heavens, what is going to happen to my car, to the pamphlets in the boot and to my £80?” For once the man did stop me and asked if he could look in my boot and whether I had anything to declare. I said no. I opened the boot and I said: “There are some booklets which I have written and which I will certainly not be selling in the Republic”. Nor did I. I took them back to the North. I offered him one and he took it and I hope it was a good read for him. At present because of the way in which it is managed I do not think it is possible to have an efficient, sensitive service for the ordinary traveller.
Now I will come to the main issue of the Bill. Huge lorries come down that road. They park on the main street because there is not enough room for them in the parking allotted. How the people of Dundalk who live in those houses along the street where the customs offices are put up with those huge lorries daily, with all the noise associated with them, parked alongside their front gardens, I do not know. The whole area of Customs and Excise needs a very sharp fresh look at. It is in that context that you get a feeling that the task is almost beyond the capacity of the service. I stand to be corrected on that; it is just an impression.
Is it right that:
Where any premises or land is entered pursuant to a warrant issued under this section the office of the Customs and Excise named in the warrant may do either or both of the following—
(a) arrest without warrant any  person or persons found on such premises or land for the purpose of searching him or them...
I would ask what they mean by search because anybody smuggling drugs can have them in the most intimate part of their anatomy. The question arises as to whether we have started a debate about where the fine line is to be drawn between violation and detection. If you take violation as the penetration of one human being by another against his or her will I think you can understand the problem. It goes on to say that that person can:
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.
First of all, if we are dealing with a serious drug problem and it involves a drug smuggling ring, what support does this unfortunate Customs and Excise officer have? How fearful will that man be when he goes to knock on the door of a suspected drug running operation? Again this comes back to the question of the association of the customs officer and the gardaí.
I am approaching it now from a different angle — the actual support and protection of the officer. Senator Robinson and Senator Daly have already dealt with the need to protect the right of the individual but can one honestly believe in this day and age, when there has been so much organised crime associated with the drug problem, that customs officers in the context of this section will really feel confident about approaching people who are involved, perhaps, in international drug smuggling which brings me to my next point, the relationship between the Customs and Excise officer and the Garda. If I were a trained member of the Garda Drug Squad I would feel somewhat aggrieved if there was another section of Irish society dibbling in the same area because it is a very specialised  area involved in understanding the motivation, the networks, the effects and the distinction between those who are organising the drug rackets and those who are peddling the drugs and the unfortunate people who have become dependent as users.
Somebody paid tribute — and I would like to add to that tribute — to the Garda Drug Squad and the Drug Squad of the Royal Ulster Constabulary who have made enormous strides in understanding as well as in detection. In a sense is there not a little bit of meddlesome interference implied in this by another section of the State service, namely, Customs and Excise doing their own independent thing in relation to these very important matters?
Section 5 deals with the right to inspect under suspicion any books or documents found therein, that is, in someone's private dwelling, and to seize and carry away all or any such books or documents. Granted, it goes on to say “reasonably believed” but can I get an assurance from the Minister, when we use those terms in relation to the Customs and Excise, that the people are as well disciplined and as well informed and equipped, trained and educated in this matter as the Garda because, if not, it could be a monstrous intrusion into the freedom of the individual particularly in his own dwelling. It is a very difficult area.
On the one hand we are saying we are all committed to trying to detect drug smuggling and drug racketeering and to diminish the drug problem. We cannot, to use the term, pussyfoot about it or quibble about the semantics and find that the drug smugglers are having a grand time as a result of our quibbling. On the other hand we have to be very conscious of the rights of the individual and the freedom of the individual in a free society with all the risks that entails, the need to have our Customs and Excise officers highly trained, well equipped and doing a job which is appropriate to their training.
In conclusion I am not in a position to know whether this is, in effect, already the case and it may very well be so. I  stand to be corrected but I think these are important questions to ask if only to allay our fears by having them responded to and finding that we were wrong in our assumptions. It is necessary to hear from the Minister that we are wrong or, if we are not, what qualifications he makes in his response to the questions we posed.
Mr. Harte Mr. Harte
Mr. Harte: I welcome the Bill. It is a very good starting point on this whole question, which is a difficult and complex one, of dealing with the onerous task of finding an effective deterrent against smuggling. What worries me about the Bill, apart from some of the remarks made by Senator Robinson and Senator Robb, is the fact that we appear to be looking for a job to be done on the cheap. I say that having regard to the remark that there is no extra cost involved. I cannot imagine how you can extend or heighten your activity and broaden it and, at the same time, not get into a cost factor. I am a little bit worried about that. On the one hand, we are giving the Customs and Excise officers some stronger powers and greater support and, at the same time, we are not providing the most vital ingredient of the lot, the extra resource in the shape of extra manpower. I wonder how the provisions of the Bill can be satisfied and be done on the cheap, and I doubt that they can.
While the Bill deals with the question of smuggling and much more than just drugs, it is quite understandable that most people should come to the point when dealing with the question of drug smuggling because we are talking about a million dollar business and, not only that, but a business that leaves behind thousands of ruined lives, serious medical problems such as pulmonary disorders, heart damage, brain damage and countless deaths. Therefore, it is quite right that the widest possible scope must be given to those responsible for the detection and prevention of smuggling of all sorts but in particular of drug smuggling. Drug smuggling is aggravated in two ways, by the spin-off crime that arises out of the actual smuggling and the cost  factor on society as a result of that spin-off and it brings us into the area of whether we have sufficient regard to the question of AIDS.
I say that in the sense that we are giving more powers to prevent smuggling of all shapes and sizes and at the same time we are not giving the facilities. The whole concept should be prevention, or a deterrent to people smuggling drugs which lead to other crimes and which, in the ultimate, lead to an increase in AIDS etc. The position of Customs and Excise officers must be supported. I believe it would be rather difficult, as Senator Robinson pointed out, for people to go into certain areas to try to give effect to their warrant without a sufficient back-up service. On the other hand, if they are to get Garda support and back-up and if they cannot get it immediately when they want to serve the warrant they could be left naked for want of support.
The Bill is well intentioned and it is there to tackle the desperate task that the Customs and Excise people have in the prevention of smuggling. The question of the heightening of the activities cannot be emphasised enough, and I am seriously concerned about the fact that no more money will be spent on it. I know we are going through difficult times but there is a necessity for certain action. I appreciate the difficulty the Minister is in but, measured against the saving factor in the prevention of spin-off crimes, etc. the mathematics are not right. Consequently if the Bill is to be true to its word somebody will have to explain in a much more definite way how this extra activity can be undertaken on a wider scale. At the same time we expect less than 700 men to take on this added responsibility and duty, not alone at the Border but also at the ports of Cork, Dublin, Limerick, Waterford, Rosslare, etc, and at the airports. This is coupled with the other duties the Customs and Excise officers have to do, as was explained in the course of the debate. They have to deal with the question of public health. Senator Fitzgerald spoke about people bringing animals ashore, immigration and other  matters. They have a very onerous job and the Bill attempts to get it done cheaply.
I am also concerned about the civil rights of people with Customs and Excise officers taking on more of the role of the Garda. I am in a dilemma about where the individual right ends and the collective right begins. Consequently I am not too sure about that aspect of the Bill. I agree that there is a need for greater vigilance and that the powers of the Customs and Excise officers must be extended but because their powers are extended there should be a provision such as the one in the complaints against the Garda Bill where people can complain against the Customs and Excise officers. While we are protecting them and giving them more responsibilities, there is no provision in the Bill to ensure that their obligations to the individuals they deal with regarding search warrants, power of arrest, etc.; are carried out properly. There is a procedure to deal with gardaí who do not treat people correctly but there is no similar provision in this Bill to deal with Customs and Excise and this should be considered.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: I am sure that the voices from the Dáil that are breaking into the Chamber must be disturbing you but the matter is being dealt with.
Mr. Harte Mr. Harte
Mr. Harte: It is bouncing off the back of my neck. I noticed there was something coming in but I am not too concerned about it.
Even though we are not just concerned with drug smuggling it is the aspect that does the greatest damage in the final analysis and, therefore, it is right that greater emphasis should be put on it, particularly having regard to the situations that develop in many inner city areas. Drugs are destroying the lives of many young people from about the age of 15 to 24 years in the inner cities. Therefore, we must conclude that greater powers must be given to the Customs and Excise officers. Their role is preventive in the first instance. We should do nothing to impede them but, at the same  time, there should be some supervisory activity that would ensure that their powers are exercised properly and that people have redress. Customs and Excise Officers have an excellent record not just in the area of smuggling. They make a very good contribution to keeping down the crime rate overall and curtailing the drug problem. That is a major contribution. Having regard to cause and effect people will agree with that.
I do not know much about other types of smuggling. For example I am not sure how a milk lorry with four chambers in it can cross the Border to the North and come back with the four chambers full of petrol. Somebody spoke about television sets being sold by travelling people along the side of the road. What is the story there? Can further equipment be supplied to the Customs and Excise officers so that they can detect whether a JCB is hiding seven or eight television sets or whether milk lorries that bring milk into the North come back full of petrol? We are not only dealing with smuggling; we are also dealing with the loss of revenue due to the State through the evasion of VAT, and other taxation.
The problems that concern me are outweighed by the overall content of the Bill. It is a very good step in the right direction. I say so having regard to the number of indictable offences in 1983 as distinct from 1979. During that short period of time the number of offences grew from 64,000 to 102,303. We are not talking in small numbers. A major portion of indictable crime is connected to drug smuggling because drugs have to come in illegally.
I do not know what can be done about the smaller ports along our coastline. In wartime people were alert and awake. I do not want any blood to flow but I went into Italy when it was occupied by the Germans. I landed on an isolated part of the coast and left again within a few hours. If it is possible to do that in wartime it must be possible for people to land anywhere along the Irish coast where there are no search lights beaming out and where people are not on their  toes. We are not in a wartime situation. In fact, the only people who are at war nowadays are the politicans and, of course, the supermarkets.
We should not overlook the role played by the RUC and the customs people on the other side of the Border. They play a part in the prevention of smuggling and we have a spin-off effect from it. I do not know how this Bill ties in with the powers of the Customs and Excise officers on the Northern side of the Border but it would be nice to know if they have the same powers as Customs and Excise officers here and are in harmony.
We need these prevention barriers. The Bill presents me with some dilemmas but these are not in relation to tackling the problems of smuggling, evasion, etc., which will make a contribution towards the prevention of crime in general. There may be some outcry from civil rights people about the extension of powers to the Customs and Excise officers into the area of the Garda. So far the only people who seem to be kicking up a row are some Senators. I am trying to balance that against the unquantifiable social cost that occurs through lack of resources to deal with the problem of drug smuggling, etc.
I have no experience of dealing with swallowers and stuffers. I am just copying somebody else's terms because I never heard them used before. Could they be supervised correctly? Do the present staff have the expertise necessary to supervise these people or would they need extra training?
Another question comes into my mind in relation to the word “vicinity”. I am concerned about the use of the word “vicinity” in the Bill. What is the vicinity? For example, a lorry driver who works in Dublin might have some of his patch 20 miles away which could be described as the vicinity. What is meant by the term vicinity in that instance?
A worry which has been voiced in relation to the giving of extra powers to the Customs and Excise officers is that the Garda are a disciplined force and they know what reservations to exercise in certain situations but there is no way of  assessing whether or not the Customs and Excise officers would measure up to this task. I am in a dilemma about this. On the one hand I want the activities of smuggling curbed. I want the State to be well protected and I want the Customs and Excise officers to be given greater strength. However on the other hand I am concerned about the right of the individual. It is a question of where the individual right ends and the collective right begins. I hope I will be able to overcome this dilemma.
Mr. McGowan Mr. McGowan
Mr. McGowan: I join with other speakers in welcoming the Bill. I listened to the Minister for Finance when he referred to the Customs and Excise officers and the Garda as the first line of defence. This is an important area and one to which a public representative should give his total and maximum support. It is a very difficult area to legislate for and it is difficult for parliamentarians to draft legislation because it has to be based on experience and the scene is changing every day. It is a difficult area and one that is very important to the State.
There are two aspects to this Bill. It seeks to stop or cut down drug trafficking as far as possible. None of us should under-estimate the abilities of those who are hell bent on bringing drugs into the country. Whether they bring the drugs in by air, sea or land, it is a fairly remunerative business. People are prepared to take big risks and go to any lengths to import drugs. After making a cool and calm assessment of the type of people who are involved in drug trafficking you wonder how drug trafficking and dealing in drugs can change an individual. They become very hardened criminals. It is very hard to draft laws and regulations to prevent people from importing drugs. The Government are doing their best to improve the legislation and I am sure this improved Bill will contain measures and give more powers to the Customs and Excise officers on the ground and those who are involved in drug detection.
The general public have got to be aware of the dangers and the damage  which drugs can cause. We have to support the Garda and the Customs and Excise officers totally because, if we do not, then they will not succeed. I live near a customs post. I have to cross customs barriers on two occasions before I arrive at this House. Therefore I claim to have a good general knowledge of the present day methods of smuggling. I am in touch with and making representations on behalf of people who have been apprehended on smuggling charges. It is a vast area and if the general public do not support the Customs and Excise officers and the Garda, the success rate will be minimal. They are dealing with people who are highly sophisticated, highly organised and who use radios to keep in contact with each other so that they can import drugs and other goods that are profitable. If there is an announcement about restrictions or cutbacks on customs personnel many people know that Saturday or Sunday would be a good day to cross the Border. I heard it said locally that if you want to take something across the Border it is best to wait until it starts to rain because the customs officers might not come out to search a vehicle. All of these cunning measures have been tried out. I am sure the Customs and Excise officers are very well aware of how difficult their task is.
There are a few aspects of the new regulations which are important. As I have already emphasised, the general public must support totally the Garda, the Drug Squad and the Customs and Excise officers in their efforts against smuggling. This new Bill would give power to the Customs and Excise officers to use some discretion and make decisions on the ground. I have a good deal of experience in dealing with people who have been caught taking a piece of carpet, a second hand range for their kitchen, or some other small household goods across the Border. All too often I have found that if they had got a VAT receipt in the North, produced the VAT receipt and had it recorded, they could have reclaimed the VAT when they came into the South or else they could have paid the VAT here and reclaimed it  where they purchased the goods in Northern Ireland. A large mumber of people who were involved in cases of this kind did not want to get wound up in the difficulties and the red tape of filling out forms and going about things in a proper manner.
There are a number of these cases and I hope we can find the machinery to deal with them rather than going through the channel of submitting reports to the Revenue Commissioners, making representations and writing reports. This would take much time at senior personnel level and cost more than the financial amount involved. I suggest to the Minister that he should examine the possibility of setting up a structure to deal with the amateur, if I can term him as such. Perhaps it will be hard to get the message across that there are a number of amateurs these days. There should be a separate method for dealing with them. There should be machinery to settle genuine cases. For example, a farmer who brings in parts for his tractor, a tyre for his car, or something that can be seen should be dealt with on the spot. As far as possible the necessary machinery should be set up to have on-the-spot fines and to resolve those types of cases without having to resort to months of correspondence and a very substantial input by senior people in the Revenue Commission.
We have a reasonably good standard of personnel in Customs and Excise. I have travelled by car in most European countries, from Germany to Holland, and I believe the standard of detection here is reasonably good. The latest initiative by the Minister for Finance and the Government to restrict the wholesale importation of goods has been welcomed by those who are in business in the Border counties. This has been a very successful measure. I trust the Minister will encourage the Customs and Excise officers to continue to support those who are finding it difficult to stay in business in Border counties. I trust that the Minister will continue to encourage the Customs and Excise officers to be vigilant on the  ground because if they are they will save jobs and small businesses. If those measures had not been taken a large number of small businesses would have had to close down.
There was a difference in the price of petrol between the North and the South. It was a source of encouragement for people within 25 miles of the Border to get into their cars, drive North and fill up with petrol because they could save £10. Many housewives went into the North to buy goods such as biscuits and washing powder because they were cheaper. However, they would finish up buying other goods such as school bags and hardware. When they came back home and added up the bill they found there was no substantial saving at all. This was brought home by the implementation of stricter laws by the Revenue Commissioners. I hope that vigilance will continue because it will help many people along the Border to stay in business. The encouragement that has been offered to these people by the implementation of these laws has had a very marked effect on their determination to compete with businesses in the North. I take this opportunity to welcome that initiative and the effort to protect those in business along the Border.
It is difficult these days to have machinery to control the Border. There is a very large land frontier and there are many mountainous areas along the Border. The authorities in the North blame the security forces here for not co-operating and taking an interest in apprehending or catching those who are responsible for acts of violence in the North. Those of us who know the terrain along the Border realise that the Border is an unnatural one and plays havoc with our security. It is very hard to police, whether against the paramilitaries or the importation of drugs or other goods. It is a very difficult area in which to implement the law.
I compliment the Minister on taking the initiative to introduce improvements. Our Customs and Excise officers will respond to these improvements. They are already doing a good job and this Bill will be an encouragement to them. If we are lacking in our support for the Customs  and Excise officers, the battle will be lost. The Bill is timely and I trust that the measures will be improved from time to time because circumstances can change. Every time you defeat a smuggler or drug trafficker he will take another route or change his method of smuggling. I hope this measure will help to stop and restrict the trafficking that is going on at present. However, it will have to be reviewed fairly often if we are to succeed.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: I want to apologise for not being here earlier for the debate. I was at a committee meeting.
Much can be contained in a fairly innocuous title. Nobody would disagree with the objective behind the powers being given to customs officers, particularly in the area of search and arrest. There can be few more repulsive things in a society than the supply of addictive and life threatening drugs to people and, in particular, the supply of addictive and life threatening drugs to young people. That has been said so often that it is almost a cliché.
A number of things need to be said. As one who has something of a reputation of being a critic of the Garda, I believe we should compliment them on their successes in this area. I think of the operations of the Drug Squad in Dublin because, in truth, I know more about that than I do about the Drug Squad in Cork which may be a compliment to their efficiency or may be a reflection of my lack of awareness of what they do. I know their extraordinary effectiveness in dealing with the purveyors of drugs on a large scale and I know — I hasten to add, not through direct personal experience, but through contacts I have had — their capacity to be sensitive and sensible in dealing with young people with whom they come in contact who may have been experimenting with the less harmful forms of drugs and their obvious willingness not to put a young person's entire life and career at risk by imposing the full rigours of the law on them. The combination of efficiency, severity and expertise where required with a good deal  of common sense in dealing with individual young people has developed a very good and successful record.
It was distressing in recent years to hear allegations that the capacity of the Drug Squad and of the special units associated with it to operate it was being restricted. This legislation and other legislation that has as its purpose the ending of the scourge of drugs and drug abuse can only be as effective as the resources that are available to enforce the law. Otherwise we end up with the law being made to look ridiculous, or, worse still, perhaps with over stretched personnel having to enforce the law in a very patchy way and perhaps being tempted, understandably, to cut corners because of the lack of support, resources and assistance.
On the other hand, if we are to deal with a problem such as the misuse of substances — we will call them drugs for the want of a better word — we also have an obligation to create a society and a culture in which the climate, attitudes, values and the life experiences of people do not leave them open to being misled in this way. There is not much in evidence in the consensus view about how Irish society will develop in the next two or three years that would lead one to be optimistic in that regard. There is ample evidence that we are going to create a youth sub-culture of idleness, poor educational opportunities, poor training opportunities, poor employment opportunities and poor income, whose view of their future, whose view of the worth-whileness of their existence, whose view of the role they might have to play in Irish society will be overwhelmingly negative. If people have no incentive and no belief in their value in society no amount of preventive legislation, however well intentioned, no amount of increased powers will prevent them doing things they want to do because of a sense of hopelessness and despair.
A problem such as drug abuse cannot be dealt with simply by dealing with the suppliers. I hasten to add that I fully support severe penalties for people who  are involved in the sale and supply of drugs. I have a view that the problem with prison in our society is that most of the people who go to prison for crimes come from a background where going to prison is no great disgrace. Most of the people who do not go to prison for crime are the people who should go to prison because they come from a background where going to prison would be a disgrace. Effectively we lock up the wrong kind of criminals and let the other kind of criminals go free. The drug barons who are wealthy and who enjoy extremely pleasant facilities and lifestyles are the sort of people for whom prison and the possibility of a long prison sentence will be a major deterrent because they have something to lose. Large numbers of the people we lock up in our prisons have nothing to lose in our society. The high rate of recidivism in Ireland suggests that they do not find prison any deterrent. The evidence is there if anyone wants to confront it.
I believe — and it was a recommendation of the Select Committee on Crime, Lawlessness and Vandalism in the other House — that, if the court can reasonably adduce that the assets of a person convicted of drug sales were accumulated largely or in great part through the sale of drugs, those assets should be forfeit. If our Constitution makes that difficult we should change the Constitution. Illegally acquired assets, whether they be acquired through tax fiddles or through drug sales, should not be able to be retained simply because we have developed a cocoon of constitutional protections around the right of and the right to private property.
Any law enforcement alone approach to the problem of misuse of drugs which is not linked into a programme of education, support and recreation for at risk groups will at best only reduce the incidence of abuse and at worst may be ineffectual. What we have got to do is create a society where the feeling and the perception of young people is that there are better things to do in our society, more worthwhile things to do and a more worthwhile future available to them than  that which is offered by the mindless use of drugs. In our fulminations, and quite rightly so, about drugs we fail to address the question of why otherwise very often people like ourselves, from backgrounds like our own, people who are literate, intelligent, very much aware of what happens in the world, take the risks involved in the misuse and, in particular, the serious misuse of drugs.
I do not think it is good enough simply to say there are those nasty drug barons out there, although that is part of it. I do not think it is good enough to condemn people as somehow depraved because they take drugs. I do not think it is good enough to end it simply in a kind of a judgmental way. One area of drug abuse with which we are all familiar is the abuse of alcohol. To call alcohol a drug creates a certain sense of misgiving amongst people because there is a feeling that somehow it is different. It is another chemical which people take to stimulate themselves and which is capable both of abuse and serious damage and even of inducing death. It is, therefore, a socially acceptable drug. We know there are very complex reasons why people become addicted to alcohol.
It is strange that we tend to understand perfectly well the problems of a person who is addicted to alcohol. We understand often as a society in a very generous way the misuse of cars by people who have too much alcohol taken. We understand and the Judiciary and the courts tend to understand fairly well this sort of thing. The minimum penalty is usually the one that is imposed. We do not understand the reasons somebody ends up taking heroin, for instance. When you know that heroin abuse is an almost certain route to decay and to death and is probably now also a certain route to AIDS, you have to ask yourself: what we are doing with our society that we are creating people who have such a sense of hopelessness? I do not think any of us has yet appreciated what sort of a society we are beginning to create. In terms of fundamental values — and many of those are now under threat; the fundamental values I am talking about, I hasten to add,  are not the fundamental values certain religious organisations have talked a lot about in recent time — the assumptions about what is worthwhile in our society are being challenged. I say that not because I disapprove of tightening up the law in the area of drugs but because I disapprove of pretences that the law on its own and the enforcement of the law can deal with a problem that is rooted more in the changes in attitudes, priorities and perceptions by people of their position in society.
On the question of drugs in our society and the law, there has been too much of a kind of illiberal fulmination about the concerned parents. I regret, in particular, the fact that the relatively small role that a particular not very nice political party had in the work of the concerned parents group has been too easy an excuse to be used by people to condemn the concerned parents group. The concerned parents group have achieved some of their own purposes in a remarkably restrained way. I could give no guarantee that I would be as restrained as they are if I knew who had supplied drugs to one of my children. I could give no guarantee on that. I am both publicly and privately a Christian and I would hope therefore that the response I would have would be that of a Christian. I know how I would feel. I think, therefore, that while they may have acted in ways that would not be entirely consistent with the law the Sinn Féin association has been too easy an excuse for many of us, particularly in politics, to condemn all of their activities.
On the question of the Bill, I have to say that giving anybody the power to arrest another person is a very risky area of law. Giving people that power who do not have the training the Garda Síochána have seems to me to be an additional risk. Giving people that power without the controls, without the regulations, without all of the things that are now stitched together in the case of the Garda Síochána seems to me to require both considerable justification and elaboration. I am unhappy with a definition of an officer of the Customs and Excise which includes  any person in the public service who is for the time being employed in the prevention of the illegal importation or exportation of goods. It seems to me to be an extraordinarily broad definition, a definition of convenience I would say, which does not require the sort of precision proper legislation ought to contain. I am unhappy in particular not just with the power of arrest and search but with section 3(4) (b) where it is stated:
That an officer of Customs and Excise named in the warrant 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.
Until such time as the powers have been exercised; not even until such reasonable time as the powers have been exercised, or until such time as it might be practicable to exercise the powers, but simply until such time as such of the powers as he wishes to exercise pursuant to the warrant have been exercised by him. We sat here and went through the Criminal Justice Bill, as it was then, now the Criminal Justice Act, 1984, line by line with a Minister who was both resolute and reasonable.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Senator Ryan, I am sure the Minister would like to attend that vote. If you would like to continue in the absence of the Minister you may.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: If the Minister is not missing too much I will continue.
Minister for Finance (Mr. MacSharry) Ray MacSharry
Minister for Finance (Mr. MacSharry): On a point of order, if he concludes before I get back to reply——
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: We will suspend the sitting until you return because we are continuing.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: The nub of the Criminal Justice Act, 1984, and the reason many  of us resisted it was not that there was any new power of arrest in that Act, because there is not, but that subsequent to arrest the gardaí under clearly described circumstances were to be allowed to detain people for questioning, among other things, in a particular place in what were meant to be controlled circumstances. So great was the concern and the controversy about the Gardaí being given those powers that the then Minister for Justice, at the instigation among others of the then major Opposition party, Fianna Fáil, agreed not to implement it and wrote into the legislation ultimately a proviso that the controversial sections of that Act could not be implemented until both a Garda Complaints body had been set up and regulations for the welfare of persons in custody had been brought before and approved by both Houses of the Oireachtas. That did not satisfy me because, as you know, I am not easily satisfied.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Do not be too hard on yourself.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: I am not. I am in the mood for being penitent.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Would you send for Senator O'Toole as well?
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: I cannot answer for Senator O'Toole, for his soul or his conscience. My own are quite enough to keep me busy.
We did all of that to circumscribe the powers of that agency of the State which we regard as traditionally having the power to arrest people, the Garda Síochána. They are trained. We talked at the time when you, amongst other people, a Chathaoirligh, said one of the problems was that the Garda were poorly trained. The Walsh commission accepted that the gardaí were inadequately trained for the job they had to do. We accepted that much of the accommodation was inadequate. We also accepted that many other things were wrong and needed to  be put right. Powers are now being given — and I particularly identified section 3 (4) (b) — which are almost of limitless latitude. I know the courts of this country will not allow that to be operated within this latitude. If an officer of Customs and Excise were seriously to abuse that power and the person were to pursue it through the courts, the courts would quickly circumscribe that by what they would regard as reasonable interpretations. Our courts, by and large, have a very good record in the area of draconian powers being given by the State to any of the agencies of the State.
This was evidenced during the famous state of emergency declarations in the seventies when the Supreme Court wrote in a series of conditions which would, incidentally, have made the British Prevention of Terrorism Act — if they were implemented in Britain — a far different piece of legislation because of the rights a detained suspect was supposed to have and which, I am quite certain, the Supreme Court would also find if that clause remains as it is. That is not the issue. The issue is not that perhaps the Supreme Court will interpret this but that a power like that should not be conveyed on somebody because it happens to be convenient.
No matter what the objective is — and the objective is admirable and right — to give somebody a power who is first untrained, who is secondly not necessarily a full time official of Customs and Excise — because the definition does not mean the person is a career grade person in Customs and Excise; it is any person who for the time being is employed in the prevention of the illegal importation or exportation of goods — could incidentally involve members of the armed forces. I do not know whether it could or could not but it seems to me as it stands that it could as it is so loosely worded. Part of the problem is that this Bill is being handled not by the Department of Justice but by another Department and perhaps the same critical scrutiny that provisions from the Department of Justice would be subjected to have not been applied in this case.
 I appeal to the Minister to think again about these powers. As to what should be done, the only power customs officers ought to have should be to detain a person until such time as it could be reasonably expected a member of the Garda could be brought to deal with the person. The principle ought to be that arrest and detention, where permissible in our society, ought to be a power of the Garda only. It is a fact that the armed forces are not allowed to arrest people. The power of arrest, in many areas, is reserved for the Garda.
Here we are talking about people in the vicinity of any port, airport or land frontier. One of the things that is true about a port, airport or land frontier is that for security reasons, at present, there will almost invariably be a Garda presence in the vicinity also. In any area where there is any major activity by the Customs and Excise there will be a Garda presence. Therefore, it seems to me that the maximum needed should be the right to detain a person and insist that that person remain in a position until such time as a member of the Garda Síochána can be called. He would then have to have reasonable suspicion as outlined here and then ought to have the power to arrest. Then, under the Criminal Justice Act as we understand it, the person would be liable to be detained for a period of six hours and for another period of six hours as required.
Mr. Robb Mr. Robb
Mr. Robb: Hear, hear.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: That seems to me to be reasonable, practical and consistent with the objectives of this legislation. I confidently suggest that if this legislation goes through as it stands it will have considerable difficulties in the Supreme Court. I cannot see our Supreme Court — given their history and their record — extending powers of arrest and detention to a body like the Customs and Excise without heavily circumscribing that power with a series of rights for the defendant which could well undermine the objectives of the Bill.
While it may be contained in some  previous legislation, there is no reference in this to the age of a person who could be arrested or detained. It may be contained somewhere else in customs legislation in which case I will be happy to be corrected but, as I see it here, there is no reference to age of any kind and I have no doubt that children could be used and perhaps have been used in the importation of drugs but because children are used does not necessarily mean that we have any right to pretend they are not children. If children are intended, special provision for children ought to be written into this Bill. If children are not intended, that should be written into it as well.
By children I do not just mean people under 16 years. It must be remembered that, under the criminal law of this land, anybody over the age of seven is liable to criminal prosecution. What we could have here is a well intentioned customs officer — I will add that presumption for the time being though we might talk about it in a second — suspecting that a parent was using a child to bring in drugs or to hide drugs and deciding to exercise these powers. I know people who have a stronger law and order bent than I would say: “Do you want kids to be used to import drugs?” I do not want kids to be used to import drugs but neither do I want kids to be abused by the State. Children are children and the fact that an adult misuses them will not justify another adult from the State side misusing them.
Children are children and they have rights. The first right they have is to be treated with the sensitivity a child deserves whether or not that child shows all the characteristics of a sensitive child. In this context some children can be tough, hard and experienced but they are still children. There is a duty on us as a society to recognise that fact. Children are children irrespective of what they do. If we give up on the prospect of liberating children from crime we have given up on the sort of values we have as a society. I find it very difficult, therefore, to understand why no reference to children is made unless there is provision elsewhere  to exclude children from this legislation. I very much doubt that there is.
The other reservation I have is that, having complimented the Garda Síochána in the past, there is not an unblemished record in the area of the use of powers of search, arrest and detention. There is a motion in my name and in the names of five other Independent Senators about the use—to be charitable about it— of the Offences Against the State Act. The numbers of persons arrested under that Act increased almost by a factor of ten in the past 15 years, but the proportion of the people arrested actually charged with an offence dropped quite dramatically from about 80 per cent to about 10 per cent in the same period. I do not understand how in 1972 “reasonable suspicion” meant an 80 per cent chance of prosecution and in 1987 “reasonable suspicion” means a 10 per cent chance of prosecution. That seems to be a very elastic definition of “reasonable suspicion”.
It is also true that arrest and detention under the Offences Against the State Act can be a convenient way of finding out something about offences which are not covered by the Offences Against the State Act at all but which may be facilitated by arrest and detention under that Act. One would wonder, therefore, if customs officers who have a suspicion that contraband, other than illegal drugs, was being imported or an attempt being made to export it, might be tempted, being human beings, to use these provisions to enable them to be more efficient in other areas. After all, if you say you suspect somebody of importing drugs and then search them and find they have other items in their possession, nobody is going to quibble any more about it. Regrettably, in my view, in recent times the Supreme Court ruled that the Offences Against the State Act can be used in a fairly liberally interpreted way precisely to meet that objective.
I do not want to keep the House for an unnecessarily long time. The objective of restricting access to drugs is, of course,  one we all share. The facts are that, as we create what is becoming an increasingly unfair and unequal society, those at the bottom with despair and no hope are increasingly going to move beyond the sort of values the rest of us subscribe to. The evidence is there already and will continue to become visible to us. In that context extra powers are not necessarily a solution. Even if they were, there are so many uncertainties, so many risks and so many areas of abuse that the sections of this Bill dealing with powers of arrest and detention ought to be severely and seriously re-thought out and re-written. In particular I ask the Minister to make it clear whether children are excluded from this legislation and by children I mean people under the age of 16 years. I am interested in the age group between seven and 16. Children under seven cannot be prosecuted and, therefore, cannot be suspected of a criminal offence. But between seven and 16 is a large spectrum of ages and of children. I do not think we as a society can justify giving anybody the power to detain a child under the wording of that section until such time as such of the powers of search or examination as he wishes to exercise have been exercised by him. That is an unacceptable way to treat anybody. It is a particularly unacceptable way to treat children.
I will be introducing amendments to have that section of this Bill re-written in a way that protects the rights of the citizen adequately while, at the same time, continues to attempt to protect our society from drugs. I hope the Minister will also look at the powers that he as Minister for Finance needs to deal with people who have acquired large amounts of wealth because of their dealing in drugs. If it turns out that the Constitution is an obstacle to the seizure of those goods, the Constitution should be amended. This is a matter to which the Government might address themselves also.
The Bill is well intentioned but it needs extremely careful line by line scrutiny in this area. I look forward to doing that on Committee Stage.
Minister for Finance (Mr. MacSharry) Ray MacSharry
 Minister for Finance (Mr. MacSharry): I thank you, a Chathaoirligh, and Senators for your indulgence during my absence in the Dáil. First, I would like sincerely to express my thanks to those Senators who contributed to this Second Stage debate. I found all of the contributions helpful and I was gratified by the general welcome which was extended to the Bill. The criticism voiced by individual Senators was clearly offered in a constructive spirit and, while avoiding the level of detail which we will undoubtedly encounter on Committee Stage, I would like to take this opportunity to reply to a number of the points raised.
A number of Senators including Senator Loughrey, Senator O'Toole, Senator Bulbulia, Senator Robinson and others expressed concern about the possible abuse of the new powers of search by customs officers in relation to drugs as set out in section 2 of the Bill and the threat that these powers might constitute to civil liberties. In response I would like to make one point very clear. The availability of powers of arrest and search to the customs service will not be a new departure. The customs service have had powers to arrest and search travellers for more than a century. The chief purpose of this section is to deal with a gap in existing legislation whereby persons who are not themselves but are termed meeters or greeters cannot be searched by a customs officer. Such people are the first and often the weakest link in the chain of drug distribution and so it is vital that the customs service should be empowered to detain and search them. It is always necessary to ensure a proper balance between the freedom of the individual and the duty of the community to protect itself. This is done in section 2.
I believe the liability to search here provided for is one which any concerned citizen will be prepared to accept weighed against the havoc which drugs can wreak in the community. I do not think these powers will be abused by the customs service. On the contrary, I strongly believe that customs officers are viewed by the community as doing a difficult job with courtesy and efficiency. Of course,  a number of people will say they have been abused and unnecessarily delayed, checked and so on, and of course we get many complaints like that. I think that in general it has to be said that the Garda and customs officers do a very difficult job with courtesy and efficiency. In support of this view I cite in evidence the report of the Ombudsman for 1986 from which it is apparent that, from a total of 2,434 complaints against the Civil Service fully dealt with in 1986, only six related to the customs service. I am informed that none of these complaints related to abuse of powers.
In response to a number of queries from Senators I should like to offer further clarification on what the exercise of the powers proposed in section 2 will entail. First, normal life on the Border will not be affected. The powers of search here sought already exist in respect of travellers. Secondly, the nature of searches at present administered to travellers suspected of smuggling drugs or goods will not be altered in the application of section 2. It is not proposed to use X-ray machines to search a person and, indeed, I would not advocate the assignment of compulsory powers of X-ray search of the person to any enforcement agency of the State. In the normal course searches will be carried out by customs officers under the guidelines established by the Revenue Commissioners. On a point made by Senator Lanigan that the search of persons for drugs entering rather than leaving ports or airports should be provided for, I can confirm that section 2 provides such powers and it is intended that, upon enactment, they will be used in the manner envisaged by the Senator.
It is important that we are able to deny the use of our country as a staging post to international drug traffickers and so suspected exporters of controlled drugs or their associates will be liable to search. These are matters that can be dealt with more fully on Committee Stage. The issue of penalties for drug smuggling was raised and I would like to say that the penalties for drug smuggling per se are not set out in the present Bill. They are set out in the Misuse of Drugs Acts,  1977-84. Section 7 of the 1984 Act deals specifically with the importation for sale or use of controlled drugs and prescribes penalties in relation to such importation ranging from £300 to life imprisonment.
In more general terms I am grateful for the acceptance by the House of the terms of the Bill and my proposal to increase certain of the penalties set out in the present text. It is entirely understandable that the debate should have focused on the proposed new powers in relation to drug smuggling. Reference by Senators to other measures in the Bill were also helpful and constructive. These measures are designed in the main to strengthen the hand of the customs service in relation to smuggling generally, to clarify or remedy possible defects in existing customs and excise legislation, to apply customs and excise controls to oil found onshore or to goods generally produced on the Continental Shelf and to increase the level of penalties for certain offences under existing customs and excise law.
As the House has recognised, these are also worthwhile and necessary new measures. I do not expect that these new powers will place an undue or insupportable burden on the existing resources of the Revenue Commissioners. In the present financial climate all State agencies must face up to the need to become more cost-effective. The days are gone when fresh resources could be allocated without hesitation. The Government are confident that the powers contained in this Bill will be exercised by the Customs and Excise service with courtesy, efficiency and application and without any risk or threat to the civil liberties of the community.
Further points were raised on the clarification of section 12 by Senator Robinson. The purpose of this section is to put on a firm legal footing the existing land frontier regulations. These provisions are not in breach of our European Community Treaty obligation but merely serve to remedy a possible technical defect in the legal basis for the regulations. The Senator also raised questions on section 19. This section is intended  to lay an obligation on any traveller to declare to customs prohibited or restricted goods identical to the obligation which already exists in respect of dutiable or taxable goods in excess of the existing traveller's allowance, no more and no less than that.
There were references by a number of Senators to the question of the training and equipment of customs officers, particularly in relation to drugs. The drugs unit of the customs service receives intensive training, but every customs officer undergoes a period of training which includes training in respect of drugs. Periodic refresher courses are run for selected officers and customs officers already have a variety of equipment to enable them to discharge their functions. The quantity and quality of this equipment is under constant review and I am happy with the Revenue Commissioners' use of the available resources. I should like to conclude the Second Stage debate by thanking the Cathaoirleach and Senators for their concerned, informed and helpful contributions which I have listened to and read with great interest.
Question put and agreed to.
Acting Chairman (Mr. J. Daly) Acting Chairman (Mr. J. Daly)
Acting Chairman (Mr. J. Daly): When is it proposed to take Committee Stage?
Mr. W. Ryan Mr. W. Ryan
Mr. W. Ryan: Next Wednesday.
Committee Stage ordered for Wednesday, 21 October 1987.
Seanad Éireann 117 Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987: Second Stage (Resumed).