David Cullinane (Waterford, Sinn Fein) | Oireachtas source

I want to come back in on a number of issues. I agree with Deputy Bríd Smith when she says that we should not overly complicate this and that there is existing legislation on public order offences that are quite similar. However, at the same time, we should accept that it is complex. There was a lot of discussion between the Department of Justice and the Attorney General. How I would see it is that any legislation is obviously subject to legal challenge. I think we can safely bet that there are organisations which will challenge this legislation in the courts. For that purpose, I think it is really important that all the i's are dotted and all the t's are crossed, and that it is robust. That is really important. We do not want a situation where it is challenged in court and a judge decides that it is unconstitutional. The more that we can be explicit and clear in terms of what the Bill does, and should do, the better. Ensuring the balance of rights in it and that it is primarily motivated towards helping people and women is the right approach. I accept that.

On the different submissions we have received, three issues have come up in over half of the submissions, which I think this committee should support. The first one that has been raised is to recommend the clause to exclude from the ambit of the Bill anything done in the course of industrial action, within the meaning of the Industrial Relations Act 1990. While I acknowledge that Mr. O'Connor has dealt with that, it is something we should do. The second is to place an obligation on members of An Garda Síochána to maintain a record of warnings, and the language used in the Bill should be "shall" and not "may". That is important from an enforcement perspective. When we see the submission from An Garda Síochána, we will see what it says but I think that is really important. I have some experience of this in local areas where there has been antisocial behaviour in communities. It can be quite difficult for local authorities to prosecute in such cases. The only way they have been able to do it is through proper recordkeeping, whereby a process is put in place where complaints are made and then registered. Where there are records of persistent complaints, the judge can look at the overall picture, as opposed to one individual case. That is important, and we should look at the same sort of process there. That is a second recommendation that is consistent across many of the submissions we have received. The third concerns inclusive language, which I think we would all agree on. Mr. O'Connor has outlined practical issues in relation to it but I think we need to come back to it. If those three areas could be accommodated within the Bill, it would go a long way towards helping us in our work.

I want to come back to the issue of enforcement and An Garda Síochána. If I were to make a recommendation, and I will, in terms of how we proceed in our work, I think we need to hear directly from An Garda Síochána. I think we should hold a hearing and invite representatives of the Garda in. We will have a private session later, in which we will discuss our next steps. For me, that seems to be the most logical approach because at the end of the day, there is broad consensus, as far as I can see, from all of the submissions in relation to the purpose of the Bill and its intent. I outlined some of the recommendations that have been made to strengthen it. The one area where we need to get it right is in enforcement, for all the reasons I outlined earlier as well. I think it is important that we hear directly from An Garda Síochána, and not simply receive a submission.

Looking at head 7, and the powers of An Garda Síochána, just so that people are clear on exactly what is being proposed, it states "A person who, without lawful authority or reasonable excuse, fails to comply with a direction under subsection (1) shall be guilty of an offence." It goes on to state "A member of the Garda Síochána may arrest without warrant a person whom the member has reasonable cause for believing is committing or has committed an offence under the Act." It also states that if it is felt that a person who is approached by An Garda Síochána is in contravention of the Act, if it becomes an Act, that person will be obliged to state his or her name and address. If the person does not, that is an offence. It seems to me to be quite clear what the powers are. It then depends on whether An Garda Síochána believes it can actually enforce the powers, which, from the Department's communications, seems to be the case. However, I believe it is important for us to talk it through.

There are issues in relation to the confiscation of electronic devices and other equipment or material. There are many explicit areas here where it makes clear what an offence is, which I am pleased about. However, the more explicit we can be, and the less subjective, the better. I have a concern about us trying to broaden out some of the terms, such as "harassment". I get why people would advocate for it but my concern is that if we are too broad, it would be problematic if there was a legal challenge. I am deeply conscious of that. We know that there are people who do not want this Bill to progress. They have their right to do that and are entitled to their own opinions; I am not taking that away from them. However, as someone who wants the Bill to pass, I want it to be legally sound.

That was not really a question as such, it was more to make the point that this has been a useful session. I believe we can help and support the Department in progressing this legislation as quickly as possible. However, I do not think we can do our work and conclude pre-legislative scrutiny until we hear directly from An Garda Síochána. That is my sense of it.