Noel Dempsey (Meath West, Fianna Fail)

As Deputy Broughan said, we had a long discussion on this in the Seanad. I thank Senator Ryan for bringing this to our attention and Deputy Broughan for making another attempt to try to make it as clear as we possibly can. The concern everybody has is the interest of the traveller rather than anything else. I hope Deputy Broughan will accept that amendment No. 5 fulfils the spirit and the letter of what he is concerned about, along with his colleague in the Seanad and the Fine Gael spokesperson in the Upper House.

This section refers to the functions of Irish law enforcement officers and, specifically, the range of search powers to be given to them under section 6. The specific powers arise where a person is reasonably suspected of making a false declaration of goods or being in possession of controlled or prohibited goods in this State, or is reasonably suspected of otherwise posing a threat to persons in the preclearance area. It is important we keep in mind that this will not involve random searches of people going through the area. It refers to a person who is "reasonably suspected". Those two words are very important. If this happened on a street or anywhere else, one would expect the law enforcement officer to be in a position to search a person without a warrant and detain the person for such a time as is reasonably necessary to carry out the search, again subject to certain conditions.

That power is generally available to gardaí. In fact, if my layman's knowledge of the law is anything to go by, I believe it is a power available to any citizen. One can detain a person in certain circumstances for a reasonable period of time.

Where a search of a person being detained involves the removal of clothing other than the outer garments about which we spoke and the kind of circumstances about which Deputy Broughan spoke, no officer or person of the opposite sex shall be present unless the person is either a medical practitioner, as the Deputy mentioned, or the officer considers that the presence of that person is necessary for the protection of the person carrying out the search or is otherwise expedient.

The Labour Party's concern in this regard was that the words "otherwise expedient" were a bit vague and that it could be expedient for the officer rather than the passenger. We sought to address that. The purpose of those words was to provide an appropriate level of protection for the individual in certain circumstances and to protect the interests of the person being searched. I gave an example in the Seanad which I will repeat. If the person being searched is a male minor, it would perhaps be appropriate for his mother to be present during the search.

The issue was the subject of a proposed amendment in the Seanad and we tried to come up with a reasonable amendment which would meet the concerns raised. I agreed to look at the issue again. I have reconsidered the position and have taken legal advice on the matter.

To avoid the doubt expressed in the Seanad, I propose amendment No. 5 which simply adds the words "in the interests of the person being searched" after the words "or as otherwise expedient". That meets adequately what the Deputy wants to achieve. It will make it very explicit that it is only the interests of the person being searched that are being provided for in this instance.

Again, the legal advice I have is that the wording of my amendment rather than Deputy Broughan's is the appropriate way to deal with the issue. I have a concern with the Deputy's wording that if one has to get the consent of a person who is reasonably suspected of making a false declaration or of being in possession of controlled or prohibited goods the State, or is reasonably suspected of otherwise posing a threat to the search, it might cause difficulties, delays and danger to other passenger, and I know that is not his intention. I ask him, therefore, to accept my amendment which is designed to meet the strong concerns expressed by the Labour Party in this House and in the other House.

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