Bernard Durkan (Kildare North, Fine Gael)

I am glad to have the opportunity to speak on this Bill, the Criminal Justice (Public Order) Bill 2010. I am not so sure this is the title I would give to a Bill if the intention were to discourage people from begging in certain sensitive areas. They are to be discouraged for very good reasons in many cases. For example, it can be very intimidating to those at an ATM machine or at a facility on a public thoroughfare if they are surrounded by people who seem to be organised. One may be intimidating unwittingly. It is important that we have legislation to deal with that.

When people are begging, I always want to know whether they are in receipt of their due entitlements under the social welfare code. I am not so certain they are in all cases. We must be conscious, particularly at present, that some people may be driven to extremes to supplement their income, particularly if they have been the victim of an application on which a decision has been delayed for a considerable time. I had a call from a constituent in my office a few minutes ago about a person who had waited almost nine months for a decision on a social welfare claim. That should not be but, in certain vulnerable cases, people may be forced to beg on the street. It is humiliating and it is an awful drop down for the unfortunate person who finds himself or herself in that position. I do not wish to justify begging or those who upset or intimidate the public but it is important to ensure we balance the way we apply our laws and that we have a reasonable indication that social welfare entitlements are being made available to applicants.

In the past I have asked people who were begging what were their circumstances and, in some cases, they had given up on obtaining a social welfare payment because they were turned down for one reason or another, including failure to make an application from their normal address or to qualify under another heading. I am a little worried that we are being encouraged to introduce legislation of this nature, which is draconian, to deal with this issue.

In the current economic climate, more people find themselves being squeezed on a daily basis. They have fewer resources and they are desperate and find themselves having to resort to extraordinary means to generate an income. Before the terms of the legislation are enforced and a crime is determined by the authorities, it would be helpful if it were possible to ascertain from the individuals concerned whether, for example, they have an income, a social welfare entitlement, where they normally live and their history. In certain circumstances it may be possible to give further attention to the person's case. Members should not forget the justifiable furore over the past few days about children in care. Some people in care have been on the streets begging. That is a fact of life, regardless of whether we like it. There are implications for society if the only action we can take is to outlaw something that happens by virtue of circumstances outside the control of the individuals involved, many of whom are vulnerable and have had no opportunity to do anything other than the nearest thing to come to hand in trying to eke out an existence.

In those circumstances, we need to be compassionate in the application of the law and this has been echoed by previous speakers. It is extraordinary in the times in which we live that so much appears to be in need of rectification and there is a such a need for retribution by the State regarding people who failed to do their job or did it improperly. It is sad that in our society no retribution will be taken against them while, at the same time, the Government has quickly taken action against the weak and the vulnerable. There are circumstances that need to be investigated but the arbitrary tone of the legislation is a little worrying. I hope its remit is not extended beyond what is suggested but even what is suggested could be intimidatory in certain circumstances, given we cannot be expected to know, on the introduction of the legislation, what the circumstances are in individual cases of people who might be fined or subject to other sanction under it.

Section 1(2) states:

For the purposes of this Act, a person begs if—

(a) without lawful authority, he or she requests or solicits money or goods from another person or other persons, and does not offer any money, goods or services in consideration therefor, or

(b) while in a private place without the consent of the owner or occupier of the private place, he or she requests or solicits money or goods from another person or other persons, and does not offer any money, goods or services...

The person thereby commits an offence. I hope there are no circumstances - reference has been made to this - where a legitimate charity might fall foul of the legislation by not having a lawful authority. I presume a "lawful authority" means a permit from the Garda. One does not know what would be the likely interpretation of that but that is my presumption.

Section 2(a) states: "A person who, while begging in any place harasses, intimidates, assaults or threatens any other person or persons,". Intimidation, harassment and assault can take place for no reason at all near vending or ATM machines or other facilities, which have nothing to do with begging. We have all come across these incidents in our constituencies and it is not always determined that an offence was committed. I would like this provision to be applied in a way that has due regard not only for the incident, but also the circumstances surrounding it, which may be maliciously intended or may be the result of necessity.

Section 2(b) provides that a person who "obstructs the passage of persons or vehicles, is guilty of an offence and is liable, on summary conviction, to a fine not exceeding €400 or imprisonment for a term not exceeding one month or both". I am not sure what this means but it could have wide implications and it is a harsh sanction. Serious offences have been committed in this State with huge implications for large cohorts of the population but no action will be taken for one reason or another. The section is arbitrary and I am a little concerned. I would like the Minister to elaborate on this in his closing contribution, as that is a wide definition of an offence. Does "obstruction" mean hovering in the vicinity, deliberating walking in front of someone, intercepting or holding out a hat for coins? For example, does it mean a person playing a musical instrument on the footpath would be deemed to be obstructing the passage of persons or vehicles? I would again like to hear what the Minister of State has to say about this aspect.

I would again like to hear what the Minister of State has to say about this aspect. All our towns have people who sit on street corners and who have traditionally done this for years. Buskers make a profession of it and I do not believe they do any damage. The definition here has serious implications and could be much more far-reaching than it would appear. It says "or" rather than "and" as regards a person who "harasses, intimidates, assaults or threatens". I would like to hear the Minister of State's evaluation of that proposal and the interpretation and definition of the offence. It would be a sorry day if we were to put people in prison for allegedly obstructing the footpath because of the introduction of this legislation.

In some cases there are people of no nationality, without a passport, even from within the European Union. I have had great difficulty in trying to find out what exactly the Minister intends to do in such cases. There are such people from within the European Union who do not qualify for a passport, and they may have lived here for several years. I wonder what the interpretation of the law will be in so far as they are concerned because there seems to be an undercurrent at present to the effect that such people have no right to exist anywhere and should be somewhere else. This is not a good side to society at any time, and is potentially very dangerous, particularly at present.

Section 3(1) states:

A member of the Garda Síochána may direct a person who is begging in any place and whom the member believes, upon reasonable grounds, to be acting or to have acted in a manner that-

(a) constitutes an offence under section 2, or

(b) gives rise to a reasonable apprehension for the safety of persons or property or for the maintenance of the public peace,

to desist from acting in such manner and to leave the vicinity of that place in a peaceable and orderly manner.

The section goes on to deal with begging within 10 m of the entrance to a business premises. Any obstruction in the vicinity of a business premises may cause problems in some cases but it all comes down to the degree to which the offence is determined and defined and the extent of the penalty being proposed. Again, I ask that this be borne in mind in these circumstances. That is as regards the power of a member of the Garda Síochána.

With regard to the power of arrest the Bill states in section 4(1): "A member of the Garda Síochána may arrest without warrant any person whom he or she suspects, upon reasonable ground, of having committed an offence under section 2 or 3." This is the section about which I have the most concern. There are many people in this country about whom it is well known they have committed offences, or who may be suspected of committing serious offences and nobody has the power to arrest them. Is that not an extraordinary contradiction in our modern society? There are such people, well-known organised criminals. I congratulate the Garda and the international police forces who combined in the recent sting to bring some of these people to justice, and I hope that continues, but it is extraordinary that we have to be very careful how we deal with such people who are well-versed in the law. They are well-versed in crime and make it their business. They go out on a daily basis to make money from crime and succeed in this, evading justice interminably it seems. They tend to know the law better than the law itself, the courts and the law enforcers. It appears we as a society are afraid to arrest them.

We have had several incidences, for example, where criminal legislation was introduced in this House in 2009, some elements of which were never written into law because of lack of direction and regulations for whatever reasons. I can never understand that because if the real intention was to come to grips with the hardened criminals that now roam the land in this country then there should have been no backing off.

At least the same resolution and force that is being proposed to apply to people begging should be applied to those involved in organised crime and criminal gangs who are responsible for murder, rape and pillage, often committing such crimes while on bail, sometimes more than once. We need to rearrange our sense of perspective. While on the one hand it is a nuisance to have people begging, obstructing the footpath or where someone steps in front of the car to wash the windscreen or whatever, it is a far greater nuisance if people can intimidate society and thumb their noses at the Garda and the courts, where they can walk in one door and out the other, coming back again and again, using and abusing the State's time, money and resources in a continuous maze focused on pursuing their own lucrative careers, showing contempt for the law and society and everything it stands for.

I and others have raised these issues, as the Ceann Comhairle is aware, over a number of years. When legislation of this nature is introduced into this House where there is a clear intention to, perhaps correctly, apply the law in particular circumstances, it is relatively easy to find groups to intimidate. However, when it comes to applying that law to those who are not so easily intimidated we are shallow in our response and how we go about our business. By saying "we", I mean whoever introduces the legislation and brings it before the House. It should be well known in advance that members of the public are aware of the way the law seems to apply to protect, or fail to protect them, as the case may be.

How many times have we seen blatant lawlessness, abuse, threatening behaviour, intimidation, violence, stabbing, shooting on a regular basis over the last ten years by people who are organised, almost an alternative army? They arm and suit themselves to achieve their ends at any given time and we are very slow to come to grips with that, notwithstanding the success achieved through the co-operation of the international police forces over the past number of days.

I would like to hear a response from the Minister of State to the points that I raised. I hope other Members will, as has previously been indicated, express some concerns as well.

See this speech in context