Michael McDowell (Dublin South East, Progressive Democrats)

I agree with the points made by Senators Maurice Hayes and Walsh. The removal of subsection (6) would mean that a court could suggest it was deliberately removed by the Houses of the Oireachtas and that the protection afforded by it was expressly removed from the Garda Síochána. It would not simply be a drafting error. A court could suggest that the Minister on introducing the Bill proposed that the law should have the effect provided in section 7(6) but was later persuaded by the Houses of the Oireachtas to remove that provision. The court could then take as an interpretative guide the legislative history as to what exactly was meant by the remainder of the section. That would be a serious matter.

Section 7(6) states: "This section is not to be taken to confer on any person a right in law that he or she would not otherwise have...". That is a crucial point. If a garda smashes his or her way into a person's house and uses excessive force to arrest him or her, he or she then commits the tort of trespass to the property and to the person. If a member of the Garda Síochána commits a crime or a civil wrong in the exercise of his or her duty, there are, as a matter of criminal law, penalties and remedies available to deal with such wrongs.

Subsection (6) provides that section 7 does not confer on any person a right in law that he or she would not otherwise have to require gardaí to carry out a function or to provide a service referred to in the section or to desist from any such action. That, too, is important. If that provision were not included, a person could maintain his or her property is constantly being vandalised and could go to the Circuit Court or High Court to obtain an injunction requiring a garda to be stationed outside the property to protect him or her. Such a provision would be beloved of some but it would also mean the courts would decide everything and the Minister and Commissioner would be told by the courts how they are to conduct policing in Ireland.

The same applies to seeking damages. The limitation on damages applies only in cases where a person would not have a claim for damages but for this section. If a member of the Garda Síochána fails to perform his or her function as envisaged by this section, that does not of itself give rise to a separate claim for damages on behalf of an aggrieved or dissatisfied person who claims he or she has suffered loss as a consequence. The more I think about it, the more essential it is that this subsection be included and the more mistaken it would be to remove it. Its removal would turn the section into a charter for litigation against the Garda Síochána, both injunctive legislation requiring it to do things and compensatory litigation demanding money on the basis of things it had not done.