Seanad Éireann - Volume 119 - 05 May, 1988
Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987: [Seanad Bill Amended by Dáil]: Report and Final Stages.
Mr. Lanigan Mr. Lanigan
Mr. Lanigan: I apologise to the House because of the fact that the Minister is not available. I can guarantee it is not my fault. If you would grant a few minutes perhaps I can contact him.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 82, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question that the Bill be received for final consideration, the Minister may explain the purpose of the amendments made by the Dáil and this is looked upon as the report of the Dáil amendments to the Seanad. The only matter, therefore, that may be discussed is the amendments made by the Dáil. For the convenience of Senators I have arranged for the printing and circulation to them of these amendments.
Question proposed: “That the Bill be received for Final Consideration.”
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: As Members are aware, they may only speak once on this question.
Minister of State at the Department of Finance (Mr. N. Treacy) Noel Treacy
 Minister of State at the Department of Finance (Mr. N. Treacy): I am pleased to be back in the Seanad again to add the final touches to this Bill which was very excellently debated here. We have four different amendments. I will go through them for Senators. Senators will recall our lengthy and detailed discussions about the powers in respect of drugs set out in section 2 of the Bill. If I might remind the House, section 2 assigns power of search without warrant for drugs to customs officers at or in the vicinity of any port, airport or land frontier.
Since the customs service already enjoys powers of search without warrant in respect of travellers, the net effect of this provision is to facilitate customs searches of — not travellers — but meeters and greeters who, as the law now stands, are immune from search by the customs service. This plugs a real gap in the existing law because, once a consignment of smuggled drugs has been passed, for example, at a port or airport reception area or, indeed, at a land frontier from the person who actually smuggles in the drugs to a meeter or greeter, the customs service cannot yet, under present law, search that meeter or greeter even where certainty exists that the meeter or greeter is in illegal possession of prohibited drugs.
The debate in the Seanad focused on two aspects of these proposed powers: first, the nature of the person searched, and secondly, the need for possible safeguards for persons searched. As I have made clear, compulsory, intrusive or internal body searches are regarded by the State as an invasion of personal rights, specifically of the right to bodily integrity which is held by the courts to be one of the rights implicitly guaranteed by Article 40 of the Constitution. I was very happy to accept the amendment of the Seanad to section 2 of the Bill which added provisos (a) to (d) in respect of personal searches. After a very full and detailed exchange of views across the floor of this House, proviso (d) as passed by this House stated that a search of the person carried out in  accordance with section 2 may be carried out by a medical practitioner.
Amendment No. 1 now before the House which emerged in Committee in the Dáil expands on the central idea behind the original Seanad proviso and makes explicit the right of the person being searched to request a search by a medical practitioner. The amendment also assigns the right of search by a medical practitioner to the customs service and makes explicit the proposition that a search may include an intimate body search. This will not mean that the customs service or a medical practitioner designated by them would be able to violate any individual's rights to bodily integrity but clarifies the matter in a way which I hope the Seanad will welcome.
This amendment is a very worthwhile step forward in our search for balance between the needs of the State, the rights of the community to protection and the personal rights of the individual traveller and or meeter or greeter. Amendment No. 2 raises the level of maximum penalty in relation to failure to comply with any specified requirement in respect of a search under section 2 from a penalty of £200 to a proposed new penalty, subject to the sanction of this House, of £500 something which, if I recall correctly, this House would welcome.
Amendment No. 3 clears up a possible ambiguity about what precisely constitutes an aircraft. The amendment makes it explicit that an aircraft for the purpose of a search for drugs under section 2 includes a glider, balloon or model aircraft.
Amendment No. 4 clears up an inconsistency between the powers of personal search without warrant as set out in section 2 as against those set out in section 3. The proviso or safeguards in respect of personal search added by Seanad Éireann to section 2 ought, all things being equal to be applied to personal searches carried out under section 3. I was happy, therefore, to propose in the Dáil a variant to an Opposition amendment giving effect to this. I consider these amendments to be a material improvement in one degree or another to the Bill.  After a long debate in both Houses, I therefore commend these amendments to this House for your approval.
Mrs. Bulbulia Mrs. Bulbulia
Mrs. Bulbulia: I welcome the Minister back into the House. I have very clear memory of the robust debate we had in the course of the passage of this Bill through the House. The debate in the other House was equally robust. I would like to compliment the Minister for the attitude he adopted in introducing this legislation and the open-minded approach to comment he exhibited at all times. This is the very essence of what parliamentary democracy is about. The net effect of it is the bringing forward of an effective, good piece of legislation into which input had been welcomed and allowed. The amendments before us this morning do materially strengthen the Bill although I have some questions to ask in relation to them. I hope the procedure will allow the Minister to respond in some way.
We had a lengthy debate here about the conflict between the right to bodily integrity which is part and parcel of the constitutional rights afforded to people in this country. I am interested to hear him say, in amendment No. 1, the expansion of the Seanad amendment, that the intimate body search is non-compulsory. The question I have to ask about this is: if it is non-compulsory how are we sure that it will ever take place because anybody guilty of importing forbidden substances such as drugs in bodily orifices is hardly going to ask for an intimate body search whereas I could imagine somebody who was innocent of that style of importation being happy to get themselves out of a difficult situation by asking for an intimate body search which would put an end to the feelings of suspicion and would probably release them from detention.
I see it as something that would assist the innocent in proving their innocence but which would not, since it is a voluntary exercise, ensure that the guilty would be caught or found out. I see a difficulty there in that, though at the same time I see the Minister's difficulty in  keeping the constitutional right to bodily integrity firmly in place. I am not too sure about the actual adequacy of the measure although it does go a long way towards admitting the reality of one of the ways in which drugs are imported into this country.
The use of the word “may” in the amendment — “a search of the person may at the request of the person to be searched” — begs a question of whether this is an option. Does the legal word “may” confirm — I feel it does — that it is an option and it does not say “must”? I am happy about that. The Customs and Excise officer can designate the general practitioner or the medical practitioner. Something I am a little unhappy about is the absence of the use of the word “registered” medical practitioner. The words “registered medical practitioner” occur in the Road Traffic Act. I fail to see why the wording in this legislation does not mirror wording in other legislation.
I would draw the Minister's attention to the fact that the medical council is the body which registers doctors and that doctors are governed by the Medical Practitioners Act of 1978. For any report of a medical practitioner to have legal validity the medical practitioner must be registered by the medical council. For the word “registered” to be omitted in this legislation could allow for a non-registered medical practitioner being involved in an intimate body search and in a situation where he or she had to give legal evidence in connection with the prosecution of somebody for a drug importation offence. I think we leave a loophole there in omitting the word “registered” medical practitioner. I do not understand why this is so. I think the Minister should address himself to that fact in the course of this debate.
There are charlatans in the medical profession as there are in all professions. The possibility does exist that somebody who is not registered could be called in in a situation like this and an intimate body search could be conducted. But the whole thing could have no legal validity  if the medical practitioner was not registered. I do not think in the context of legislation that it is good enough just to assume that the medical practitioner will be registered. I think the word “registered” should have been and should be at this stage if it is possible, included in the amendment to strengthen it and to give the activities of such a practitioner the legal validity which the situation warrants.
I approve of the increase of the fine in amendment No. 2. My party sought a maximum fine of £1,000 in the other House. This represents some haggling or bartering which occurred over the fine to be imposed. Most people in the country agree that levels of fines are very often derisory and do not reflect the seriousness of the crime involved. Everybody who participated in the debate on this Bill agreed that drug importation and drug offences were a heinous crime and that we must all combine our forces to combat drugs, drug dealing and drug importation. It was amusing to read in the Official Report of the Dáil debates on this measure that my colleague in Fine Gael, Deputy Michael Noonan, in the haggling situation when the Minister graciously accepted the mean of £500 said that perhaps they should spit and shake hands on this one. That, however, is an aside. The increase in the fine does underline the seriousness of the offence and is a welcome compromise from the Minister although I am afraid I take a fairly hard line on this and would have preferred to have seen a £1,000 fine. I think no sum of money is too big in order to act as an efficacious deterrent.
Amendment No. 3, the amplifying of what includes by definition an aircraft, seems a sensible measure and plugs a loophole that could have existed in the wording as originally drafted. The expansion of the definition to include glider, balloon and model aircraft is welcome. I am pleased about that. Given the size of this country, gliders, balloons and model aircraft could be used by people intent on moving drugs from one place to another and these devices have the added  advantage of being without any sound which makes them less amenable to detection.
In section 3, amendment No. 4 is one that clears up an ambiguity. It is quite intelligible and is welcomed by this side. To sum up, the one outstanding query I have is the absence of the word “registered” in relation to medical practitioner. I cannot see why it was omitted. I do not think it is good enough to take it as being meant. I think it admits the possibility, however slim, of a charlatan being involved in an intimate body search situation and the evidence as such being discounted and lacking legal validity and I hope the Minister can address himself to that and see even at this stage if he thinks fit to consider inserting “registered” into this amendment.
Mr. Fallon Mr. Fallon
Mr. Fallon: I, too, would like to congratulate the Minister for bringing forward the Bill again to the Seanad where it received a very positive airing at Second Stage and Committee Stage. Subsequently in the Dáil it was debated at length and, as the previous Senator said, with a lot of gusto. I am sure new ideas were brought forward from both Houses and have given us a better Bill. I certainly believe that to be the case. The amendments that are being discussed this morning are necessary. Senator Bulbulia referred to amendment No. 2 which increases the fine to £500. It is something all of us would welcome. Obviously, as the Senator indicated, her party might have wished for something higher but nonetheless it is a compromise that was agreed at Dáil level. There has been ambiguity about what constitutes an aircraft. That, too, has been cleared up in amendment No. 3.
Amendment No. 4 clears up any inconsistency in the powers of personal search without warrant previously referred to at length in this House. Amendment No. 1 caused most of the concern in this House and understandably so. I am sure it was the same in the Dáil. I can understand that there is a reason for Senator Bulbulia's concern regarding medical practitioner or “registered” medical  practitioner. I am sure that will be answered by the Minister. This amendment also must be seen as a very worthwhile movement forward. I think the amendments and the Bill are seen as a very important part of legislation. It is certainly, as I see it now, a better Bill as a result of the long debate in both Houses of the Oireachtas.
We have a role in combating drugs importation. We know that drugs are being smuggled through airports, ports or land frontiers. We have a real duty to effect legislation which will eliminate, as far as possible, the importation of these drugs. I believe that drugs in this country have been allowed to operate quite easily. Certainly I think it is necessary to make every effort to block the loopholes. This Bill will help in a big way in doing that. The Minister is correct in taking on board the concerns of this House and the Dáil and putting them in the form of these amendments. As a result, there has been a material improvement in the Bill as it was originally drafted and it is one that we all welcome.
Minister of State at the Department of Finance (Mr. N. Treacy) Noel Treacy
Minister of State at the Department of Finance (Mr. N. Treacy): At the outset, in response to the contributions this morning I want to pay particular tribute to both Senator Bulbulia and Senator Fallon for their very excellent individual contributions right throughout the debate since we brought the Bill into the House and to all the Members of the Seanad who made a very positive detailed and worthwhile contribution but in particular to Senators Bulbulia and Fallon as they are respective spokespersons for their parties and they made a very significant contribution and I want to thank them for it.
A number of points were raised this morning. I would like to respond to them as quickly as possible. An intimate body search which does not violate individual bodily integrity can be carried out and be required to be carried out. An internal or intrusive body search is, however, not contemplated. We can undertake an intimate search which does not involve an internal search. Intimate searches for  example, a patdown search at an airport, already take place and under this Bill intimate searches will take place which do not violate bodily integrity. A search involving the removal of clothing can take place, therefore, provided that the search is not internal or intrusive.
Senator Bulbulia and Senator Fallon also referred to the situation pertaining to the medical practitioner. As you know, this Bill has operated in tandem with and is based on similar provisions already existing in the Misuse of Drugs Act so the interpretation of this Bill would be in line with the bona fide interpretation of the misuse of Drugs Act and the similar situation would apply via-á-vis a medical practitioner. Therefore, we can take it that the medical practitioner is a person who is a bona fide medical practitioner. I want to assure the House on that. If a person to be searched seeks a medical practitioner to carry out the search he or she will be entitled to be assured that this doctor is a legitimate doctor. I would ask the House to accept these assurances that this situation will not be abused.
The inclusion of the word “registered” would not have the effect Senator Bulbulia presumes since this would be no definition of what “registered” means precisely. Does it mean a registered citizen of this country? Does it mean registered with a health board? Does it mean registered with the Irish Medical Council? Does it mean registered — for a foreign person — with the Department of Justice. It has various connotations.
I want to assure the House that a medical practitioner will be one designated by the customs officers, will be a bona fide medical doctor. Assurances on that will be given to the person concerned and I want to assure the House that if there were to be any confict in the situation vis-á-vis the medical person involved, of course the courts would have to interpret that in any case that may be taken to the courts for adjudication. I am quite satisfied and I am sure the House will accept the assurances that we give.
Finally, I thank the House for the very excellent contributions and for the  tremendous amount of time and interest shown. I am confident that, when we have passed these amendments, we will have put into position very important legislation which will help to protect the people of this country and, indeed, we hope also the people of other countries against the terrible ravages and scourge of drugs and drug peddling.
Question put and agreed to.
Question: “That the Bill do now pass” put and agreed to.
Seanad Éireann 119 Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987: [Seanad Bill Amended by Dáil]: Report and Final Stages.