Joe Costello (Dublin Central, Labour)

The amendment seeks to delete section 7(5) of the Bill, which states: "This section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law." The Bill at section 6 makes a statement as to duty and functions but this is effectively removed at section 7(5). Having made a positive statement, the Bill now negatives this and provides an opt-out or disregard.

The subsection states that the section "does not affect any powers" of "any other enactment or at common law". What does that mean? The powers of a garda or of the police force at common law are widespread. At common law a garda has powers of arrest and powers to act independently without reference to a commissioner or anybody else. The powers of common law do not come within the ambit of the statute. They are wider powers granted to the original constables. What is the meaning of this subsection? Can a member of the Garda Síochána operate independently under common law as a surrogate peace officer, with all powers of arrest, based on his or her opinion and without reference to anyone else?

I am not satisfied on two counts, first, that the Minister should take away from the proactive strength of what is being proposed and, second, I am not clear what is meant by "any other enactment" or "common law" in this context. I see the common law as having given a certain degree of independence to a member of the Garda Síochána that can be operated irrespective of other duties that might be conferred by statute.

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