Oireachtas Joint and Select Committees
Wednesday, 18 January 2023
Joint Oireachtas Committee on Health
General Scheme of the Health (Termination of Pregnancy Services (Safe Access Zones)) Bill 2022: Department of Health (Resumed)
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
The purpose of today's meeting is for the committee to discuss further the general scheme of the health (termination of pregnancy services (safe access zones)) Bill 2022. The committee has already discussed this matter with the Department of Health and An Garda Síochána. The committee has also considered all of the written submissions received from interested groups to date. We will focus on issues raised at our earlier meetings. To enable the committee to consider this matter, I am pleased to welcome Mr. Muiris O'Connor, assistant secretary at the Department of Health with responsibility for research and development and health analytics, and Ms Bronwyn Conway and Ms Caitriona Mason from the bioethics unit.
All those present in the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19.
Witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if any of their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. Members are again reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against persons outside the Houses or an official either by name or in such a way as to make him or her identifiable.
I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I will not permit members to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask members partaking via MS Teams to confirm, prior to making their contributions, that they are on the grounds of the Leinster House campus.
To commence the discussion, I invite Mr. Muiris O'Connor to make his opening remarks on behalf of the Department of Health.
Mr. Muiris O'Connor:
I thank the committee for inviting us. I am an assistant secretary in the Department of Health. I am joined by my colleagues, Ms Caitriona Mason and Ms Bronwyn Conway from the bioethics unit in the Department.
I welcome the opportunity to address the issues raised by An Garda Síochána about general scheme of the health (termination of pregnancy services (safe access zones)) Bill 2022.
I would like to begin by expressing our appreciation to An Garda Síochána for its considered contribution to the drafting process. There is no doubt that this proposed legislation is complex, seeking, as it does, to balance a range of competing rights. The Minister is committed to developing a constitutionally robust and operationally feasible Bill capable of ensuring that termination of pregnancy services can be accessed and provided safely and privately without unwarranted interference or influence.
In its submission to this committee, An Garda Síochána raised a number of operational issues in respect of the general scheme, and with the forbearance of the committee, I intend to outline the Department’s position on these this morning. Fortunately, a number of these matters had already been identified and addressed by the Office of the Parliamentary Counsel, OPC. For ease of reference my presentation will follow the sequence of the summary table set out in the Garda submission. The first issue raised was the difficulties around the use of curtilage in the demarcation of the zones. This had previously been considered by the Office of the Attorney General as part of the drafting process and it was agreed that curtilage would no longer be used in the definition of safe access zones. The parameters of the zones would now be calculated as being 100 m from the entrance of the healthcare facility to a public road or street. It is hoped this will bring increased clarity to the delineation of the zones. The definition of "public place" had also been revised through the drafting process to mean any place to which the public have access, whether as of right or by permission and whether subject to or free of charge. From a policy perspective it is also intended to include private property in certain instances,and this is the subject of ongoing engagement with counsel.
It was a core tenet of Government policy to mainstream termination of pregnancy within existing healthcare services. This was done both to embed the provision of termination of pregnancy into primary, community and acute services, and to ensure that services could be provided to those needing them in relative anonymity. It would run contrary to this policy to highlight or expose individual providers. Consequently, it was considered necessary to extend the ambit of this proposed legislation to all providers that are eligible to provide the service, not just those that currently do so. It is also hoped that this would encourage additional practitioners to provide the service, and increase availability and access.
In the context of head 4, recklessness has been included as an alternative mens reato intention for prohibited conduct in safe access zones. The current draft also facilitates a greater alignment of Garda powers with prohibited conduct. The operation of the warning, along with its unlimited temporal and geographic effect, is one of the matters currently under consideration by advisory counsel and an opinion is awaited. The draft will be revised in accordance with the advice received. As outlined earlier, the Department would be reluctant to specifically identify individual providers, and would prefer to allow them to continue to operate in a manner that protects the privacy and confidentiality of the doctor-patient relationship. Unfortunately, the suggestion of creating a register would run counter to this policy intention.
On the issue of a global warning, the Department’s legal advice is that it is a significant departure from the previous concept set down in the general scheme which was intended to be an interaction between two individuals, to enhance legal certainty around the zones. Moreover, as the warning is intended to be an ingredient of the offence, counsel is of the view that a global warning could cause practical difficulties in relation to the proofs in a prosecution. However, this does not mean that gardaí, when tasked with policing, cannot use a global warning as a means of engagement and for the purposes of endeavouring to disperse a group of potential offenders. It is merely that a warning issued in such a way is unlikely to be capable of constituting an ingredient of criminal offending.
In respect of the comments relating to head 5, I confirm that it is our intention to allow what may otherwise be prohibited conduct, within 100 m of the Houses of the Oireachtas.
On head 6, following the advice of the OPC, it was agreed that the harassment of health service providers would be addressed by means of existing law, that is, section 10 of the Non-Fatal Offences Against the Person Act 1997. The use of section 10 would also provide the Garda with the necessary suite of powers to investigate and prosecute such offences, which addresses some of the Garda comments on head 8.
The majority of Garda powers are now included under one head. The Department will engage with the OPC with a view to consolidating further, if possible. There is ongoing discussion with the OPC on providing the Garda with the additional powers of search and arrest requested under head 7. Provided this is legally feasible, there are no policy objections.
We have sought the views of the Director of Public Prosecutions, DPP, in respect of including the requirement for a direction in the legislation, and will be guided by same. Again, there are no set policy objections to the inclusion of such a requirement.
I thank the committee for its patience and attention this morning. I and my colleagues are happy to take questions and inputs from committee members on the legislation.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I thank Mr. O'Connor. I now invite members to discuss the matter with the witnesses.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I thank Mr. O'Connor for his presentation. I will be brief. Is the Department satisfied that, if someone decided to challenge the constitutionality of the legislation, we have covered all angles as regards the issue of public areas and the constitutional right to protest and that the legislation would stand up to such a challenge?
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
Is there any previous legislation of a similar nature dealing with something else where we had to go through the constitutional angle carefully? I am wondering about the previous experience of the Department.
Ms Caitriona Mason:
We are working with the Office of the Parliamentary Counsel, OPC, and advisory counsel and they are alive to the possibility of challenges. The whole process of interaction and drafting is geared at protecting this legislation from possible challenges and sealing off the routes of different challenges. The OPC and advisory counsel are the ultimate experts on drafting legislation and ensuring it is sufficiently robust to survive challenges. It is a matter they are alive to and that we are alive to in the sense of revising and taking on board the advice they give.
Colm Burke (Cork North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source
If we are happy with the constitutional issue and that the legislation is effective, people will always look for alternatives. For example, they might protest outside the houses of staff members or where their children go to school or where a member of their family is working. Are we satisfied that protection against that can be incorporated into this legislation?
Mr. Muiris O'Connor:
Yes, we have progressed that. It was the intent under section 6 to protect service providers from harassment not only in and around their place of work but also in their homes and in their wider public lives. As I set out in the opening statement, with advices from the Attorney General and the OPC, we are satisfied that our intention to afford that protection to service providers is already provided for in existing law. The Non-Fatal Offences Against the Person Act 1997 deals with harassment and Part 4 of the Criminal Justice (Miscellaneous Provisions) Bill 2022 provides for a strengthening of Garda powers to protect people from harassment. Harassment and stalking provisions are being added to the 1997 Act in the Criminal Justice (Miscellaneous Provisions) Bill 2022.
The advice we received is that it is unnecessary for us to try to cover the issue of harassment outside the safe access zones in the safe access Bill and any attempt by us to re-describe the offence of harassment in the context of termination of pregnancy services might simply create complexity in prosecuting harassment under the Non-Fatal Offences Against the Person Act.
We are satisfied that the legislation in place, and particularly the strengthening of it through the criminal justice Bill on harassment and stalking, will be adequate to fulfil our policy intentions of protecting staff from harassment both inside and outside their place of work.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I welcome Mr. O'Connor and his team and thank them for their work on the Bill. It seems, on the face of it, to amount to a very simple proposition but it is more complex, as we have seen through our hearings with representatives of An Garda Síochána and others. I do not envy the Department in trying to craft a Bill that will both meet constitutional and legal requirements and strike that balance, as Mr. O'Connor said, involving the right to protest. Nevertheless, the protection of women and those who avail of services has to be our primary concern, and I appreciate that every effort is being made to ensure the Bill will do exactly that. Everything we are doing here is intended to improve the Bill and to ensure it will be fit for purpose. I commend everyone involved in that because I understand the complexities involved.
Mr. O'Connor made a very important point in his opening statement that one might argue is unrelated to the Bill, although I think it is related. It concerned mainstreaming termination of pregnancy services within the healthcare system. A review of termination of pregnancy services is ongoing and I look forward to it coming to a conclusion and making recommendations. Mr. O'Connor raised the issue of mainstreaming these services within the healthcare services. In the first instance, not enough hospitals provide services, which needs to be rectified as quickly as possible, while we know from our hearings that not enough general practitioners provide the service, which creates access problems. We have to widen access and ensure it will be as easy as possible to access the services and, obviously, that will mean more GPs and hospitals providing the services. Mr. O'Connor noted that in extending the ambit of the legislation to all potential providers as opposed to just actual providers, which I support, that might entice more general practitioners to provide the service. While there is conscientious objection from some, we know anecdotally that others have said a fear of protest might be holding them back. If that is the case, I hope this legislation, when enacted, will ensure that more GPs provide the service.
To follow on from Deputy Burke’s questions, the issue of curtilage arose frequently in our discussions. Is Mr. O'Connor saying it is the clear view of the Attorney General that such an approach would not be legally practical and that the best way to do this would be to have a zone located 100 m from the entrance of the facility? If so, does that mean all entrances? Is the Attorney General suggesting that the definition of "curtilage" was too difficult and would be too problematic?
Mr. Muiris O'Connor:
That is spot on. The delineation of the zones, when we were using the term "curtilage", was considered problematic, and it was decided that a distance of 100 m from the entire boundary of curtilage would be too difficult for the Garda to explain to a potential offender and for the public to understand. It is an important part of the proportionality of the legislation that it be clearly understood. The zone relates, as the Deputy suggested, to the entry points to the healthcare-providing facility and the entry points between the curtilage and the public road. We were down to examining which pillar of an entrance would mark the boundary. We will bottom all that out and we will be able to provide substantial detail. Other jurisdictions have supported this kind of legislation with precise maps that illustrate where the safe access zones are. Moving from the general term "curtilage" to the entry or exit points, of which there will certainly be many on hospital sites-----
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Practically, this will come down to an understanding on the ground of a member of An Garda Síochána whereby it will be clear to him or her where the zone is.
That is the important point.
Mr. Muiris O'Connor:
Exactly. It was an issue that ran into challenges operationally as well as from the OPC. The feedback from An Garda Síochána and the Attorney General's people was consistent that we needed a more precise point to determine the delineation of the zone so we are satisfied we are making progress.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I will move on to the issue of warnings because I raised it in previous hearings with the Department, the HSE and An Garda Síochána. One problem we have is that somebody at healthcare facility A is given a warning but a few hours later, he or she is at healthcare facility B and a fresh warning must be given. Mr. O'Connor has expressed an opinion and it is the Department's legal advice that global warnings are problematic. Can he explain in a bit more detail why that is the case regarding the scenario I offered up as an example? We know there are serial protesters. Thankfully, they are small in number but it does not matter how small they are. The impact on the service user is what this legislation needs to deal with. It needs to protect people using the service so regardless of whether it is one person, 50 people or 100 people, it is one too many if it creates a problem for the people providing and using a service. Regarding an example whereby person A is at facility A and gets a warning, then moves on to facility B and gets a fresh warning and then moves on to facilities C and D and so on, is that what will happen under this legislation? What is Mr. O'Connor's understanding of it?
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Enforcement.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
That is the meat of it. That is the important part of it.
Ms Caitriona Mason:
What the Garda envisages is a warning given over a loudspeaker telling people to move on and that they are in a safe access zone. The concern is that an individual would come to court and say "I was too far away from the loudspeaker. Your loudspeaker was crackly. I didn't hear it. I didn't get it. How do you know I heard it? Prove it." In criminal proceedings, the onus is on the prosecution to prove beyond reasonable doubt. The OPC saw difficulties with this from a prosecution point of view.
To move on to the Deputy's second point around relay protests, this was the Department's original concern, which was why no temporal or geographical limits were placed on the warning. We had a concern and advice from counsel advising on the scheme involved a concern about what the Deputy said, namely, that protester A comes along, is warned he or she is in a safe access zone, goes down to safe access zone B and is given a warning again. It is not only about the repetitive nature of the protests but also the drain on Garda resources. On foot of the concerns raised by the Garda around the need to include the possible need to include temporal and geographical limits, we have re-engaged with counsel and asked them to consider the interactions. The drafter had already asked counsel to consider the role of the warning vis-à-visthe criminal law. We have now asked counsel to consider whether it is necessary to include temporal and geographical warnings but as we set out from a policy perspective, we do have concerns about including-----
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I understand the issues relating to global warnings and the difficulty that may arise and people using some of the reasons given by Ms Mason in court. I accept that fully. As it stands, it is the case that you can move from one facility to the next.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
-----there has to be a separate warning.
Ms Caitriona Mason:
No. As it is currently drafted, you cannot. The Garda submission raised whether there should be temporal and geographical limits. As counsel was not certain that an indefinite warning would hold up, we have asked them to consider that and to revert. From a policy perspective, initially the intention was the warning would be indefinite and that there would be no temporal or geographical limits on it to cut off the scenario outlined by the Deputy at the start of his contribution.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
That is the hope when this proposed legislation is eventually passed. The expectation is that is where we will be.
David Cullinane (Waterford, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
That is positive.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I thank Mr. O'Connor and his team for their work on this complex matter. When we first started debating it, so many issues were highlighted. It is down to our guests' dedication that we have worked our way through most of them.
I will touch on the topic raised by Deputy Cullinane regarding the mainstreaming of services and the lack of availability of termination services throughout the country. We have heard from GPs that, among other reasons, the fear of protests outside their practices is one reason why they would not be tempted to provide abortion services in their practice. Has the Department undertaken any survey or investigation with GPs to see how many of them would sign up once this proposed legislation is passed?
Mr. Muiris O'Connor:
The review of the operation of the Act referred to by the Senator being led by Marie O'Shea is at a very advanced stage. Its methodology has involved engagement with service providers, GPs and other health professionals not providing the service and service users so we will get some insight from that review. The Department has not engaged directly. We would link up with the HSE regarding those matters.
Deputy Cullinane opened with the issue of general access. Embedding termination of pregnancy services within general health services at community and acute level is critical to protecting the very good policy of the 2018 Act. Three and a half years into the roll-out of the service, which was interrupted somewhat by Covid and the distraction in the health service, the review of the operation of the Act will show that it is still a service in its infancy. A minority of GPs provide it, and not all hospitals provide it. While this proposed Bill refers to safety in accessing services, the core issue of the provision of services in a way that is geographically distributed and available locally to people all over the country is still a key focus of the roll-out of termination of pregnancy services.
Ms Caitriona Mason:
To follow on, while we have not undertaken a survey, we are drawing on the experience of the My Options website operated by the HSE. Over half of providers have registered on My Options, which indicates that people are reluctant to come forward for fear of whatever, but I assume that protests would be one of the issues involved.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
I return to something Mr. O'Connor said about research as part of the review. Is he aware of the results of this research? Have they been shared with the Department?
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Is the Department able to share the aspect of the research relating to the estimated percentage of GPs who are not providing the service but who will offer it once this proposed legislation is passed?
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Ms Conway is unwilling to share that aspect of the research at the moment.
Mr. Muiris O'Connor:
To manage the Senator's expectations, it will not have a statistic on the numbers. That question was not asked of providers in that way. We regard the safe access legislation that is now being considered as only one element of a suite of proactive supports the Department and HSE will need to formulate to support further roll-out of the service.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Is that currently being undertaken by the Department?
Mr. Muiris O'Connor:
Yes. We are taken up by the finalisation of the Bill but we are also engaging with the HSE and Ms Marie O'Shea in trying to prepare and anticipate the most effective ways we can respond to the recommendations that will emerge.
Lorraine Clifford-Lee (Fianna Fail)
Link to this: Individually | In context | Oireachtas source
Perhaps the committee will have the witnesses back before it when the report is published and that plan has been put together. I thank the witnesses.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
I welcome the witnesses and the work that has been done. A fair deal of progress has been made. I would like to probe some of the Department's statement a little further. I think we are all at one in the aim of this whole exercise, which is to ensure there is robust legislation that will protect service users primarily and will act as an encouragement for more service providers to get involved by providing reassurance and a stronger legislative framework.
To dig into some of those issues a little further, how often has the Department of Health met the Garda Síochána or what kind of engagement has there been since the Garda Síochána we was before this committee?
Ms Caitriona Mason:
We have met the Garda. On 16 December we had a lengthy meeting with its representatives to go through their submissions and how they see these matters being fixed. We reverted to counsel. We are in ongoing contact with the Garda via email, not just regarding the submission but also small operational aspects of the Bill. The most recent contact we had with the Garda via email was earlier this week.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Some aspects do not seem to have been resolved at this point that are not necessarily small ones. I welcome the dropping of the term "curtilage"; it is a sensible thing. Perhaps the practical implications of vast hospital grounds were not realised.
Another issue the Garda Síochána raised regarding policing of the zones was the question of signage. Did the Department engage on that issue? How serious an issue does the Department think it is?
Ms Caitriona Mason:
The Garda representatives raised at the meeting on 16 December that their preference was for signage. As to how practical or otherwise it would be to put signs around nearly 3,500 GP practices remains to be seen. We have engaged with colleagues overseas with greater experience of implementing this type of legislation and looked at how they brought certainty to their law. We have been in touch with colleagues in the Isle of Man, where there is only one safe access zone, so it is relatively straightforward. They did a system of a surveyed map. Then we looked at the legislation that has been in force in British Columbia since 1995. Again, it is a case of detailed maps. On foot of receiving this information, we engaged with colleagues in the HSE around the feasibility of mapping our safe access zones. Engagement on that issue is ongoing. We will get back to the Garda Síochána-----
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Is it still an issue on the table?
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Mr. O'Connor spoke about alignment of Garda powers with prohibited conduct. Does that entail amendments to primary legislation in the justice area?
Ms Caitriona Mason:
No, not as we interpret it. We are taking that on board in relation to our Bill because that is the only Bill we are dealing with.
We interpreted it as it looking for a more streamlined approach - this power relates to this offending behaviour - and that it was more of a drafting style. We have engaged with the Office of the Parliamentary Counsel to the Government, OPC. Insofar as it is possible to do that, it will be done.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Another issue which came up for a lot of discussion and has been referred to already is the issue of a warning. If one were trying to tease that out from an operational point of view, how would that work? If somebody was protesting in County Kerry, from the point of view of a record, how would a garda implementing this legislation in County Galway know that person previously had a warning? The issue was from an operational point of view. I do not think anyone saw an easy way of dealing with that. That is still to be resolved, it would seem. How necessary is it to have a prior warning? Can it not be an offence dealt with in its own right?
Ms Caitriona Mason:
That is the question counsel is going to look at as part of its exploration or view of the warning. Regarding whether it should be recorded or not, this is unique in Irish law. The only analogous provision is in the Isle of Man legislation. We reached out to the Isle of Man to ascertain whether or not it has a requirement to record the warning, which it does.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
How does it do that? It is a much smaller country.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
It is probably not the best example. I am interested in seeing what the outcome will be.
Mr. Muiris O'Connor:
The warning, as the Garda Síochána will have gone through here, is not in current practice. Gardaí give warnings as part of graduated policing and inform people that they are in danger of breaching legislation, but there is no facility in Garda practice to record a warning. They do not do it and it raises issues around the presumption of innocence. The PULSE system, for instance, is specifically for convictions. There is a logic to that, that you do not just document things short of convictions and hold the records on those.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
One can think of lots of different offences that do not require a warning. That is a key issue.
Mr. Muiris O'Connor:
We are actively looking at the proposal from the Garda Síochána to consider inserting an amendment to the Criminal Justice (Public Order) Act 1994 relating to safe access zones. We are really interested in it because it aligns more with Garda custom and practice. There is a graduated approach in the interaction between a garda and a potential offender in that, which does not require a warning. It is more attuned with current Garda practice. As Ms Mason said, we are awaiting a view from the Attorney General and drafters on that.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
Under head 6 in relation to harassment of healthcare providers, the witnesses said they were satisfied or their advice is that people are protected under existing law. I had a conversation with a Garda superintendent this week in the context of protestors outside refugee centres and the fact that is where people are living and whether there was a way of preventing that. The clear advice was that there is not, under existing law, just as gardaí do not have the power to stop people protesting outside politicians' homes. That is a very different view of the existing law from what the witnesses have been advised. They need to have a look at that again because it was said categorically to me. Clearly, if there were existing law that protected politicians there would not be the likes of what happened to Deputy Gino Kenny. The Garda would have dealt with it. That is a comparable situation.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
It is really important to get clarification on that. Those are the main issues I am concerned about. While progress has been made, it seems that there is still some way to go. The Department is awaiting further advice. What is the realistic timescale to which the Department is working? This has been going on for quite some time, and we are all keen to see the legislation published as quickly as possible.
Ms Caitriona Mason:
It will be, as soon as we get the advice. We are meeting with the OPC, practically weekly, in respect of this matter. We are pulling out all the stops with a view to closing off any outstanding issues. We hope to get it finalised as soon as possible. It has gone on longer than anticipated. Issues have arisen during the drafting process. We felt it was important to address these and ensure that the legislation will be as constitutionally robust as possible.
To follow up on the Deputy's point in respect of harassment, counsel's view was that new provision is coming in around harassment and stalking. I refer here to section 23 of the Criminal Justice (Miscellaneous Provisions) Bill 2022. Counsel is of the view that the section in question strengthens the offence of harassment, which gives it added force, and that by including it in this proposed Bill, all we would be doing would be including an additional proof. This is because you would have to prove that you are a service provider. We can take those comments back and re-engage with counsel on the matter.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
I know there is legislation in train. My understanding is that the legislation in question relates to harassment of individuals. What about a person's family home? I am not sure that the legislation would deal with that situation. There is a distinction in that regard.
Róisín Shortall (Dublin North West, Social Democrats)
Link to this: Individually | In context | Oireachtas source
I thank Ms Mason.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
Would Deputy Hourigan mind if I brought Senator Higgins in now? The Senator is under pressure because she has to attend another meeting.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
I am happy to facilitate that.
Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source
I thank the Deputy. I also thank the witnesses.
I will pick up Deputy Shortall's point about section 10 of the Non-Fatal Offences Against the Person Act. The Deputy gave very good and recent examples of where section 10 does not seem to be considered by the Garda to be an adequate basis for action in situations where what clearly looks to be harassment of people, be they recent migrants or others, in places where they live is taking place. Section 10 is not being used in respect providers of abortion services. Therefore, it is not proving to be adequate at present. In that context, I wonder why would we then have confidence that it would suddenly be used differently. There are a few specific reasons in this context as to why section 10, in its current form, is not adequate. I am very concerned about the apparent proposal to lose the explicit provisions in the general scheme and revert to those in section 10. I am of the view that we should link with section 10. For example, section 10(1) refers to one person persistently harassing another. In such circumstances, it must be a case of one individual consistently harassing another. Subsection (2) contains very useful descriptions of what might constitute harassment, but the requirements under subsection (1) mean that you could have these relay situations where, once again, multiple people who work in a hospital may be harassed on their way in. The latter does not come under section 10 unless a person is being harassed repeatedly by one individual. There could be a relay of different protestors in an organised way, each taking turns to harass people on their way in. That would fall outside the ambit of section 10. The relay issue that was discussed is especially relevant in the context of warnings.
I may agree with the gardaí about the global warning issue but maybe not that of the relay warning. If the prohibited conduct is the issue then there should be some recording of a warning for prohibited conduct or, as Deputy Shortall said, there maybe some aspects of prohibited conduct which should just directly be an offence.
Returning to section 10, first, it is not working now and, second, it includes requirements which could act as loopholes in relation to the matter where the same individual must harass the same individual. I am really concerned about that. While it is good to be consistent with section 10(2) in describing the kinds of action that are harassment, simply relying on the existing law will probably be inadequate. Does the Department have thoughts on that?
Mr. Muiris O'Connor:
We are very actively working through the proposal to lean into existing legislation on harassment. As we say, it has been strengthened with the Criminal Justice (Miscellaneous Provisions) Bill in the expansion of harassment and stalking. The matter of relay and how the existing law relates generally to a particular individual repeatedly harassing a particular individual and how people seeking to circumvent the intentions of the law might get around it is something we will bring back to the exercise. We will engage with An Garda Síochána, the Department of Justice and the Office of the Parliamentary Counsel, OPC, on that.
Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source
It would also be very useful to clarify why, if section 10 is adequate, it has not been used for the past years because it has not been used in that context. I do not agree that section 23 in the new legislation will address that.
My other issue relates to the concern by An Garda Síochána, which I think was valid, around the lack of clarity in the confiscation of phones or recording equipment. There needs to be clarity around why they are being confiscated and what the restrictions are because the summary conviction does not give as much investigative power in the confiscation of the phone. I note that the proposed prohibited conduct in subsections (l) to (m), inclusive, of head 4(3) directly relate to things that might involve a phone such as photographing or recording healthcare providers or persons who are accessing or providing services. Is consideration being given to providing clarity on whether, if a phone is confiscated in such circumstances, it is being confiscated in order to prevent it being used for further harmful conduct or in relation to investigation? If there is a requirement, then it should be ensured that there is an investigative power. Maybe it needs to be tied to particular specific prohibited conduct under head 4(3). What approach is the Department looking at in relation to the concerns raised by the Gardaí on that? I do see circumstances where it might be necessary to confiscate the phone but it is really important that there is clarity on the basis for that.
Ms Caitriona Mason:
This issue was raised by An Garda Síochána quite forcefully on 16 December when we met with them. We have no objection in principle to giving them the necessary powers of investigation. This matter is under active consideration by the OPC around giving An Garda Síochána powers of search and arrest. They pointed out that as it was a summary offence that they would not have the necessary follow-on offence and particularly the necessary follow-on powers, especially on these electronic devices. We have undertaken to explore the issue further with the Office of the Parliamentary Counsel. Insofar as possible, it will be tied to the prohibited conduct.
Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source
I was going to say that it might be that it only needs to be provided in part of it. It is important that there is a proper balance in the confiscation of phones and so forth.
Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source
It is clear which specific behaviours it might be related to.
Regarding the trade unions, the witness will be aware that I was, along with many others, one of the co-sponsors of the Private Members' Bill. One thing we had looked for was clarity in ensuring that trade union protests, as we have seen across the water recently, outside hospitals, would not be in danger of falling into or inadvertently being captured under the legislation. We had a specific carve-out for trade unions in our Private Members' Bill. I understand the witness believes that is not necessary but I would welcome that it is implicitly covered under the heads of Bill.
Ms Caitriona Mason:
We have no policy objection to including a specific exemption. We have engaged extensively with counsel on this issue. Following the last meeting of this committee we re-engaged with them on it. They are firmly of the view that they have not captured it under prohibited conduct but they have assured us that before the Bill is finalised they will do a final sweep just to ensure that any and all doubt is removed in relation to that issue. There is no policy intention to capture industrial action.
Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source
On the issue of signage, I was a little concerned about it. There are pluses and minuses to it. In one way it can send a signal. There are the maps. I refer to it creating an element of deniability. For GPs the idea of having to acquire signage outside what are, in some cases, their homes as well as their practices, may become an onerous thing. I can see a role for them in hospitals and clinics but was the concern related to the same principle mentioned in relation to the register? I agree with Senator Clifford Lee that the overall issue is ensuring that we have more provision, as well as protecting access to the provision that exists already. Will the witness add a little more clarity on that? I can see the concerns around the register. Unfortunately, currently the opt-in list is often used inappropriately for targeting. Was that the concern with signage as well?
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
The Senator is out of time. We will get the replies.
Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source
On the deniability, is there a danger of people saying, "I did not see the sign and therefore...", whereas the 100 m is pretty clear?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
I thank the witnesses for all their hard work on this. It is a really impressive level of engagement. It is a complex piece of legislation. Some of the questions around the timelines and so on which were a concern have been asked. I found the document we received in our briefings around the witnesses' response to the Garda Síochána really useful. I direct attention to page three, the second last item there, part 2, head 8. I guess this is from the Garda Síochána and it reads that due to the fact that offences arising under this Act are likely to give rise to unusual public interest it might be worth considering that the direction of the Director of Public Prosecutions is necessary in such cases. The answer is that the Department is engaging with the DPP in relation to this issue and will be guided by its advice and that there are no set objections from a policy perspective. Will the witness expand on that point?
Ms Caitriona Mason:
Yes, certainly. The Garda Síochána has suggested that it is likely this legislation will be contentious and consequently it would like to send files to the DPP and the DPP would decide whether or not to proceed with prosecutions.
We did not include this in the general scheme, but if it is considered necessary or legally desirable, we would not have an objection to it. We have already discussed it briefly with the Department of Justice, which suggested that, because it might be in some respects resource dependent and could lead to a backlog in people being prosecuted for the offence, if that makes sense, the most appropriate people to comment on it would be the DPP and that we engage with them, so we have sent a suggestion to the DPP. That is a very long-winded way of answering; I am sorry.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
No, that is a very comprehensive way of answering. I will outline my concern on involving the DPP. From our interaction with the Garda, we gathered that there is concern about the implementation of this law. I have a concern that, if it becomes an established standard within this legislation to involve the DPP where it is not really in the public interest actually to prosecute, and there is usually discretion around such issues and the DPP is reserved for specific types of cases, it will be used as a practical barrier to prosecution and it will not be a law that is used. Usually when things get sent to the DPP, it is to see whether something can be prosecuted, if it is worth doing and why we would do it. If that conversation is introduced into legislation, then the legislation is undermined before it has begun. We have to wait to see what the DPP says, but I would have a real concern that we would be introducing a level of questioning of the purpose of this law and whether we will actually prosecute where there does not need to be such.
Ms Caitriona Mason:
I take the point and that is probably why it was not in the original general scheme. From the Garda's perspective, it is anxious not to proceed with cases it would feel it would have a difficulty prosecuting, such as where a person is two centimetres over the 100 metres, for example, and whether it can proceed. We will wait and see what the DPP has to say about it.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
My response to that, if the Garda was here, would be that, until a case is prosecuted and tested, that cannot really be known. Sending it to the DPP just creates a kind of artificial barrier before the law even gets tested. If we continue to use the DPP as that barrier, we will never get to the point where it gets challenged and tested. It is very useful to do that. I have outlined my concerns about introducing that barrier, and if the witnesses get clarification from the DPP, the committee would be interested in knowing that, if it is possible to get our hands on it. I do not know if that is something the witnesses are able to do. Would that be something that would be possible to get, if and when the witnesses receive it?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
That would be very useful because there is significant interest in the legislation. One of the conversations we had at length with the Garda was the recording of offences as it stands now and whether it was possible for gardaí to gather data in a meaningful way as they relate to these kinds of events. At the time the Garda did not have that data. Has it provided any additional data to the witnesses on these offences? We know they are still happening now.
Ms Caitriona Mason:
Not from the Garda on the process, but we engaged with the HSE. It receives orally through the clinical advisory forum many reports of this type of process. In January 2022, there were protests outside the medical centre in Dodder Park. There were protests in Dún Laoghaire and Milltown in March and in Goatstown in July. I do not want to take up too much of the committee's time on this.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
No, it is useful. We could list out many more. I am aware of many. Is the way the clinical advisory forum is gathering that data formalised?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
So it is ad hoc?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
The Garda has not produced any further data or anything. Does Ms Mason know of any plans the Garda has from any of the discussions the Department has had with it?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Well, we did, to be clear, but it has not provided it.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
Perfect. Will that be ongoing? I know that it is ad hocand that they might not be very testable data, but they are still useful.
Mr. Muiris O'Connor:
I talked about the possibility of the safe access legislation being one element now of a wider, proactive roll-out of termination of pregnancy services. I would think we will engage with the HSE but with a view to formalising the intelligence-gathering around this. With the policy to provide protection and to protect the safety of all service users on all potential sites, it will be necessary, in implementation, to understand where the problems are arising and to direct the Garda resources to where the problems are arising. Even the maps which we may have to make available for all sites might then get down to street level and clarity might be provided to manage in a graduated way a site such as any of those where there is a persistent problem. There is just a bit of nuance there. We do want to think more broadly than this legislation, which is very important, but the proportion of GPs, for instance, providing this service is so low that there are other issues and we want to understand them and support GPs in doing this and-----
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
That is very heartening. That is exactly the right approach, that is, a climate in which this does not happen.
On that issue, the next section is about the advice of the OPC on the harassment of health service providers. I wish to clarify two items more for the record than anything else. We may see an unintended consequence, since these protests would not be possible within certain areas, that things move at a distance such that there might be harassing phone calls or things that happen digitally, focused more on service providers than service users. I wish to clarify whether those kinds of acts, that kind of harassment, would be covered under section 10 of the Non-Fatal Offences Against the Person Act or whether they would fall under the newer law.
Ms Caitriona Mason:
Section 23 of the Criminal Justice (Miscellaneous Offences) Bill, as we understand it, is to replace section 10 of the Non-Fatal Offences Against the Person Act, we understand quite soon. When we engaged with the OPC we went down through the type of conduct we were seeking to prohibit under head 8. On foot of the Deputy's comments this morning, we will definitely re-engage with the OPC, but it was certainly of the view that that type of conduct would be closed off under section 23.
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
On the previous page it is confirmed there is an intention to allow what may otherwise be prohibited conduct within 100 m of the Houses of the Oireachtas. For clarity, will people still be able to protest and still be able to come to the Houses of the Oireachtas?
Neasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source
That is fantastic. I thank the witnesses again for all their hard work. I had one other question but it has completely gone out of my head.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
You can maybe come back in later, Deputy. Deputy Bríd Smith, you are next.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
I am sorry - my voice is very compromised. Thankfully, most of the questions I wanted to ask the witnesses have been asked and answered very well. I thank them for their work.
The following is just a comment on the curtilage issue. There are some buildings where services are provided in respect of which the definition of 100 m from the entrance still does not satisfactorily address the question of protest. I think immediately of Holles Street Hospital. One could be 100 m away from the entrance to it and still be outside a window of a room where a woman might be receiving or a doctor might be providing care. I note that when the witnesses from the Garda were here they had a real problem with the definition, yet the definition in the Electoral Act is very clear. I have contested many elections, as every other member in this room has, and that is constantly implemented, and all gardaí are familiar with it. You cannot go within 100 m of a polling station to distribute literature or you will be warned, and if you do it again in another polling station up the road, you will be told: "You were doing that just down the road and I told you off." The Garda has experience of implementing legislation with that definition, with all gardaí understanding exactly what is required.
We see that actively at every election. I have had pensioners give out leaflets for me, innocently, who were repeatedly warned by gardaí not to do so. I therefore found the response of the witnesses from the Garda on safe access zones a little picky, but they are very well capable of implementing legislation that contains provisions relating to curtilage, the definition of 100 m etc. There are, as I said, venues that would still not benefit from the provision stipulating 100 m from the entrance, end of. I alert the witnesses to that.
I am also a bit confused about the reasons for warnings given, taking into account the argument Senator Higgins made about relay protesters, because that is what they do. They do it here all the time to us. Certain protesters are doing it at certain venues with refugees in them now. I am confused as to why warnings cannot be recorded or why Garda A cannot record, "I have just given Muiris O'Connor a warning", such that if Muiris O'Connor appears somewhere else, they are all able to say, "You have been warned already." I do not understand why that cannot be done and I am worried about that relay nature that would allow such protesters to circumvent the legislation. Will the Department look at that again, if possible?
Will the witnesses clarify for us the penalties involved? Are there immediate fines, or what penalties would people who breach safe access zones face? I know the witnesses have gone into the difficulty about the Garda wanting to go to the DPP and I totally get that they are correct in being concerned about that - we would all be concerned about that - but what are the penalties, just so the public and we ourselves are clear?
Ms Caitriona Mason:
The penalties are set out in head 8 of the general scheme. I do not think there has been any real deviation from that in terms of the drafting other than in respect of head 6. Another point the Garda made about the original head 6 was that, because we were treating it as a summary offence, the Garda would not have the necessary powers of investigation. The fact it would be covered now by section 10 of the Non-Fatal Offences Against the Person Act and, eventually, by section 23 of Criminal Justice (Miscellaneous Offences) Bill would increase the penalties for that offence up to, I think, seven years, potentially, on indictment for a first offence. That makes it an arrestable offence, which gives the Garda the necessary powers of search and arrest to investigate it. That was one of the other considerations in using the existing law for harassment. However, I do not think we have deviated from the penalties set out in the general scheme. They are contained in head 8 of the general scheme.
Mr. Muiris O'Connor:
On the issue of curtilage, we are getting down to the real street-level view of what the 100 m is. There are not too many instances of what the Deputy describes. Because the provision applies to all entrances, even Holles Street hospital, with one side on Merrion Square and the other down Holles Street itself, and we will be able to map this very closely, will see the full perimeter and the windows protected. However, it is an issue we will look at and pay attention to as we develop the mapping of the hospital sites in particular.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
At the moment Mr. O'Connor does not think it is a concern.
Mr. Muiris O'Connor:
I do not think so. Holles Street hospital is exceptional, being so on the street. With the two entrances, I do not think it will have an area where people could protest directly below the window of any of the rooms, but we will look at that, and I thank the Deputy for raising it.
The issue of warnings has been quite difficult. It is something that was advised to us by external counsel in the context of the proportionality and the implementability of the Act and the due fairness to any potential offender to clarify that he or she is in danger of breaking the law.
We are actively looking at the advice from the Garda to lean into the Criminal Justice (Public Order) Act 1994. If we were to go down that route - and we will be getting advices on it in the coming days - there is a warning on how the Garda engages with people. The Garda explains the law and the safe access zone, if this is what we were to do, and people are charged with failure to comply with a direction from a garda. There is an element of warning there but it is the recording or documenting of a warning and retention of that warning that is the difficulty. That is not currently done-----
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
Is it not done under the Criminal Justice (Public Order) Act 1994?
Mr. Muiris O'Connor:
It is not done under the Criminal Justice (Public Order) Act 1994. There is a lot of interaction and I would say that in a lot of cases a warning is delivered but it is verbal and it is not intended to be documented. The garda then can press and say to someone they have been warned and they are now being charged with failure to comply with direction from a garda. A person is basically busted in those circumstances.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
That would not cover protestors going down to the centres and-----
Mr. Muiris O'Connor:
It does not cover what Senator Higgins raised about a relay and eight or ten people who are organised and who sequentially harass someone. We will talk to the Department of Justice and the Garda again about whether the harassment legislation that exists at the moment is sufficient and about the number of convictions that are achieved under it and so forth. As has been said, there are wider issues about protests at people's residences and so forth.
Bríd Smith (Dublin South Central, People Before Profit Alliance)
Link to this: Individually | In context | Oireachtas source
I appreciate all those answers and I thank Mr. O'Connor. We would look for reassurance on the question of workers' protest outside these centres; we need that.
The last conversation was about data and the collation of same through the HSE. That is quite important and it is important that the HSE does it as well. Mr. O'Connor probably has a more comprehensive list but everything he listed was in the leafy suburbs of south Dublin and it is quite possible for the same people to be doing this. It more than likely is the same people moving around so the collection of data is important.
The witnesses were asked earlier, but I am not sure that we got an answer, if they have any idea when the process will be completed.
Ms Caitriona Mason:
I do not mean in any way to be evasive but we are working on this as fast as possible. There is ongoing engagement and we are anxious, as is the Minister, to see it completed as quickly as possible. There are a number of outstanding issues we need to bottom out with the OPC and it is aware of the urgency of this. As soon as that is done we would hope to finalise the Bill.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
I pay my compliments to all the people who have given of their time, energy and expertise and worked on this Bill. I should mention that I was reluctant and still would be reluctant to identify the locations where people are seeking access to a service that is legally provided for them in the country. The debate that arises is whether they should be able to access such services with full privacy, in the way they should be able to access medical services, as that is a vital service. I need to remind myself as well that this primary legislation sets out in great detail the extent to which the service was vital and readily available. I hope there does not begin to be a sense that having legal access to the service is one thing but that it cannot be accessed by dint of protest by a person or persons unknown. Other speakers have brought this up in relation to immigrants and other issues.
I hope that this does not bring specific attention to protestors who want to make the legislation unworkable. I appreciate the work that is being done by the group that is before us this morning, on the basis of its anxiety to make the Bill work.
I have not received detailed information on the individual cases or on the number of cases where the reverse was the case and where people have been harassed. What are the numbers? Have people been interfered with in any way?
There is now a phrase in the protesting world, which is “effective protesting”. That means something more sinister than just having the right to protest. Is it envisaged that adequate provisions have been made, or are they in the process of being made, in order to identify such protests in a way that will protect the people who have a need for the services that are being provided? This may be a life-or-death issue, depending on the particular case. A person who is seeking such services has the right to do so without interference, notwithstanding the right to public protest. What is the general thinking on that?
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
It related to the risk posed by the public identification of the centres, hospitals, GP practices, etc., that are providing the services. For instance, as a citizen, I do not want to and should not be able to drive onto a street or a road and identify where services of a particular nature are being provided. This is provided that those services are legal and that they are being provided by the law of the land, which these are. I would not like to see a situation or a loophole whereby the intention to protect these people might also be a means of highlighting the service for the benefit of the protestor.
Mr. Muiris O'Connor:
That is a very important point. As we set out, the policy is therefore to provide for safe access zones to be available in the vicinity of all potential providers of these services. That makes it quite a challenging exercise. There are 3,500 GPs and 19 hospitals with maternity services. We remain committed to that. The Deputy is right that it would be counterproductive to restrict the provision of safe access zones to areas where the service was being provided, because that will inadvertently draw attention to the provision of these services in particular sites.
Having said that, in operational terms, we need a full reset of information-gathering mechanisms within the health service. These should feed across to An Garda Síochána as appropriate so that it can respond to particular sites where issues are arising or where the safety, dignity and privacy of service users are being compromised by inappropriate protests. That is a careful balancing act.
In the North of Ireland, they have a facility whereby a health service provider can apply for a safe access zone. In a sense, by doing that and by applying for such a thing, they are effectively declaring that they are providing the service. That is not consistent with the policy approach here. However, there is a real trade-off between the ability to manage and implement the policy and the need to protect the privacy and dignity of the service providers and the service users.
Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source
That is a positive measure. It is very useful because it does not select, identify or isolate anybody who intends to provide the service and who might be overawed or intimidated by those protesting against the provision of service. I reiterate the importance of the service and how it can be and has been a life or death issue for some patients seeking those services. We know from history all the situations that arose and how they arose. A woman seeking access to such services is fully entitled to privacy and anonymity for a service that is already available. Just because some people have a reason in their minds to protest, who are opposed to it in principle, that does not and should not prevent the availability of the service, which is provided for by law, with the huge efforts that went into that.
Finally, I want to mention the unfortunate tragedies in the past over long years. I will not mention the individuals now but everyone is aware of the issues. We need to keep in mind as time progresses the horrific nature of some of the issues that brought about the situation whereby this legislation was introduced, passed by the Houses of the Oireachtas and the service is now legally available.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
Mr. O'Connor and his team are very welcome. It is very complex. I have been critical in the past that this has not happened quicker. I still hold that position but like everyone else here I understand it is complex and difficult and that it will be challenged so it has to be got right. We can be sure there will be challenges to this legislation.
How hands-on is the Minister, Deputy Stephen Donnelly, in his engagement with the Department on this? Has the team briefed him lately? Is he in contact with the team on this specific issue? What is his level of engagement?
Mr. Muiris O'Connor:
The Minister is very engaged in this. He gets regular opportunities to input and get briefed on our progress. He frequently attends management board meetings of the Department where updates on this issue are available. We work very closely with the Minister right across the Department and with his advisers. He and his advisers have pushed it to the priority legislation repeatedly in the term before Christmas and it is on there again for the current Dáil term. The pressure is on us. The Minister is eager to deliver on this and I understand is supported right across the coalition Government on that.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
Has the team had engagement with other Members of the Oireachtas beyond the Minister on a private basis to update them or is it just through this committee?
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
The Department has not engaged otherwise. I know other colleagues have asked this question but for the record again, what is the time limit? When does Mr. Conway expect this legislation will be enacted?
Mr. Muiris O'Connor:
It is really hard to say. We await some very critical advices. We are meeting weekly with the OPC and the Attorney General. The OPC, our drafter, is awaiting legal guidance on key matters. We find the contribution of An Garda Síochána very helpful and we are actively exploring the advice that has come through from it.
In particular we are looking at the complexity around warnings which are hard to operationalise. That could be overcome with incorporating the protection of safe access zones within the Criminal Justice (Public Order) Act.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
I understand and that is important. I will put it this way - will we see the legislation enacted by the end of 2023?
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
Obviously, it has to be published and then it has to go through both Houses.
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
By the end of this year, would Ms Mason be confident that we would see that happen?
Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source
In a couple of weeks. I thank the officials. I appreciate that.
Paul Gavan (Sinn Fein)
Link to this: Individually | In context | Oireachtas source
It is good to be here this morning. I welcome our guests. The last time I attended this committee, which was over MS Teams, I was quite taken aback by the lack of answers I got on where the Bill was at. I want to put that in the context that the Minister had promised that a Bill would be introduced by March last year. It is very clear from the opening statement and the work of this committee that Mr. O'Connor and his team are very much engaged in this process and I want to acknowledge that. I welcome that. I really want to recognise the work of the committee because it is clear that the committee has engaged directly with the officials and asked key pertinent questions and the officials have provided us with some good, clear answers today on some of the matters around issues including curtilage. It is very welcome that they will revise the Bill to include all potential providers. The officials have given some answers in relation to warnings. However, like Senator Conway who just spoke and others, I have concerns around the timeline. I also understand that there is only so much the officials can say on that. What would be helpful to me, and I am a guest here, as we end the meeting, would be if the officials could clarify the outstanding issues which they say they need to bottom-out with the OPC. Can they give a simple list of what the outstanding legal issues are because that would help to clarify for us where the Department is at and what the timeline might be?
Ms Caitriona Mason:
The big issue that we need to bottom out with them is the warnings. That will include whether we can leave it as it is, essentially, or whether we need to include temporal and geographic limits on those warnings. Then there is the question around the interaction between the warnings and the criminal law in Ireland. This is a unique feature. It has never been used in the Irish criminal law, as far as we have been told. The OPC is looking at that. That is the big issue.
Other issues that have been raised this morning include things like industrial relations. That has already been extensively raised and discussed with the OPC. It has assured us that the answer is "no" but we will do a final sweep. Following on from some of the comments at this meeting we will re-engage with the OPC on what was the previous head 6. Was there anything else?
Ms Caitriona Mason:
Many of these matters will happen in parallel. It is not that we are waiting for the advice and warnings and then we will engage with the DPP on something else. They will all happen in parallel.
Is there anything else, apart from what was mentioned there? Please take time to answer. It gives us decent clarity as to what it is that is holding up getting this Bill finally published.
Ms Caitriona Mason:
There are some small outstanding issues about Garda powers. The question of additional powers for search and seizure, particularly of electronic equipment was raised by the committee earlier this morning. As part of the current draft, that has gone back to the OPC which is aware of the issue. I assume that the OPC is working on it.
Paul Gavan (Sinn Fein)
Link to this: Individually | In context | Oireachtas source
So far, what I have seen relates to the warnings and interaction with the warnings. The witness briefly referenced the industrial relations issue; delineation of the zone; and Garda powers in relation to search and seizure. Is there anything else?
Paul Gavan (Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I will ask a different question. Is the committee in a position to finalise a report after this meeting to help our colleagues progress this?
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
We have to get a composite of the discussions we have had. Then we will decide as a committee whether further meetings are needed or not. It is at that level at the moment. We were going to have a private meeting after this session. I do not know if that will happen now. Many of the members have left to attend to other matters. We will discuss the issue in private session at our next meeting and we already discussed it here in the private session prior to the meeting. We see it as still very much a work in hand. Part of my frustration as Chair is that first of all, we do not deal with a lot of legislation. Part of the difficulty has been that when we brought the witnesses in first, and even this morning, this is still under active consideration. It is very difficult for a committee to scrutinise legislation on the basis of the heads of Bill because the meat of a Bill is contained in the actual sub-headings. We have been dealing with headings. The meetings have been really useful. However, it has not been ideal.
We brought the witnesses present today in first, then we brought the Garda in. The Garda did not seem to be fully aware of the engagement with the Department of Health; they said there was not a huge amount of engagement. The witnesses today have stated that there was. Those are some of the challenges that the committee has faced so we may need to re-engage with the Garda again. Are the witnesses happy with the engagement from the Garda and the Department of Justice? I think it has been useful that the witnesses outlined some of the sites where there have been protests. There is a view, probably a minority one, that this is not really an issue, that legislation is possibly not needed and that we are being over the top in pressing the need for this legislation. That is a viewpoint that is out there so it is really useful to hear the fact that the Garda say there has not been a huge number of complaints but the HSE forum shows a number of complaints. The Garda might not necessarily be aware of that. The Attorney General's intervention has been useful but if we had had that intervention prior to the witnesses' first meeting it would have been better. We spent nearly an hour at the first meeting talking about curtilage and the boundaries. As committee Chair I would still have concerns about these. At a previous meeting, I raised the issue of the boundaries and I gave the example of St. James's Hospital
We talked about the entrance to St. James's Hospital and the huge boundary around the site. Someone might use electronic images or banners on houses that are overlooking the site. The same applies at St. Vincent's University Hospital which has a huge boundary area as well. Is it acceptable that people attending hospitals for services have to walk by protests and so on? Attending hospital can be upsetting enough for people as it is.
On the warnings, when we talked to the Garda I raised the issue of the fact that a garda may be monitoring a protest outside a hospital or a site, ensuring that people maintain the required distance but what happens when there is a shift change? There are practical considerations that need to be resolved. The fact that the members have been able to raise concerns has added to the potential of the legislation. I would like to think that it has been helpful to the witnesses in drafting it. The involvement and the submissions that have been made from many groups on both sides of the debate have been useful as well. We have taken on board all the views in the written submissions. The committee has yet to decide where it goes from here but I think the engagement has been very useful.
Paul Gavan (Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I think the work of the the Chair and the committee has been really crucial in clarifying many matters. I share the Chair's concern though about so many issues that still seem to be under active consideration. Ms Mason is correct. This is priority legislation. Unfortunately, it has been priority legislation since the beginning of this Government. I do not want to get into a back and forth on this but it is quite clear that not enough was done in that first year of the Government. I am clear that everyone is committed to doing it now but because this is priority legislation surely we should be able to see this Bill before the summer term.
Ms Caitriona Mason:
That is the hope, yes. We are working on it as quickly as we can. I apologise for the way that issues have arisen but that is part of the drafting process. Heads of Bill are the broad brush strokes, the policy intentions. They have remained consistent but as we have delved into giving the detail to those, issues have emerged. It is complicated to balance conflicting rights. We want to ensure that when we bring the Bill before the Houses that it is as constitutionally robust as possible. As a couple of members mentioned earlier, it is vulnerable to challenge.
Paul Gavan (Sinn Fein)
Link to this: Individually | In context | Oireachtas source
One last comment and I will finish. I thank the Chair for his indulgence. To reiterate the points that were made by others here, I think the idea of any kind of requirement that a file be sent to the DPP would be enormously damaging to this Bill. I am sure the witnesses got that message already from the committee.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
I thank the witnesses for appearing here today. I think the Bill is evolving.
Paul Gavan (Sinn Fein)
Link to this: Individually | In context | Oireachtas source
That is very kind of Mr. O'Connor to say. I can see there is real engagement by Mr. O'Connor's team and that is very welcome. Of course we have to get it right constitutionally in order to progress it. I can see from everything that Mr. O'Connor has said today that there is good engagement in that work. We are just anxious to see timelines.
Mr. Muiris O'Connor:
I want to echo Senator Gavan's praise for the committee. We have benefited greatly from our engagement here. It is one of the most complex pieces of legislation that we have been involved in and the deliberations and the examination that we have been subjected to here have been really beneficial.
The deliberations and examination we have been subjected to here have been beneficial.
A question was asked about the interactions with the Garda. In the Garda's follow-up it was able to clarify that there were quite a frequent and relevant set of meetings. The personnel who came before the committee might not have been the personnel we had linked with at earlier points. The Garda has been helpful to us.
Seán Crowe (Dublin South West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source
A question was asked on what we will do as a committee. We will monitor it and we will probably look for a view from the Garda again on how this is evolving and on what challenges it feels there are. We will bring the Department back before the committee before the final draft. This meeting has been useful and it is useful for people who are following this at home. There is a lot of interest in this and this helps people at home to understand some of the challenges that are facing the service unit and those who are providing the services. We would all like to see that people do not feel intimidated when going for supports and that those who are providing those supports should not be intimidated. Legislation has been agreed by the vast majority of Irish people that these services should go ahead and that there should be no impediment blocking people. As a committee we will try our utmost to follow through on this and to make the legislation as ideal as possible.
I thank the representatives of the Department of Health for their assistance on this important matter. The committee will further consider the matter with a view to completing its pre-legislative scrutiny as soon as possible.