Michael McDowell (Independent) | Oireachtas source

First, I must protest that this legislation has been rushed through without adequate debate. There is no excuse for a situation where Dáil Éireann is considering a Bill in the morning and it comes to us in the afternoon especially when this Bill is badly drafted. I draw the Minister of State, Deputy Feighan’s attention to one or two aspects of this Bill which he may regret not having spent slightly more time with his colleagues putting in place.

I draw his attention to the definition of "occupier" at the bottom of page 6 of the Bill. It states:

‘occupier’ means, in relation to a dwelling—

(a) a person who—

(i) resides in the dwelling, and

(ii) is the owner of the dwelling,

or

(b) a person who resides in the dwelling pursuant to a licence ( except where the owner of the dwelling also resides therein);

In other words, there are two categories of people. The occupier is a person who resides in the dwelling and is the owner of it and that includes a tenant by the way. Second, a person who resides in the dwelling pursuant to a licence, therefore, somebody who is there, permitted to be there by the owner, except where the owner of the dwelling also resides there. A person who is a wife, a husband, a partner, a son, a daughter or a guest living in a house is not an occupier if the owner of the house also resides in that dwelling. That is the first mistake that has been made here.

I also draw the Minister of State's attention to page 8 of the Bill which states: "where a member of the Garda Síochána suspects, with reasonable cause, that an event in contravention of a dwelling event provision is taking place, he or she may direct the occupier to require and cause all persons attending the event ... to leave immediately." Therefore, a garda cannot direct the son or the daughter of the person who owns the house because they are not a licensee under the badly drafted definition of "occupier" because the owner of the house actually lives there. If the owner is not there, a garda cannot direct those people to get people to leave the House. That is a big mistake.

Also subsection (3) near the bottom of page 8 states "require the occupier to provide the member with his or her name". Therefore, the son, wife or husband of the owner where the owner resides in the house, even if the owner is not there, cannot be asked to deliver his name, to clear the House or whatever. This is the kind of mistake that is made when legislation is rushed. The term "occupier" is defined in the Bill as someone who resides in the dwelling, and is the owner of the dwelling, or, alternatively, "a person who resides in the dwelling pursuant to a licence [that would be a family member] (except where the owner of the dwelling also resides therein)...". A garda cannot ask the wife, the son, the daughter or whoever else, or the guest or the cousin, who is there for her or his name and address and cannot ask her or him to get people to leave the house. This would not have happened if this Bill had been carefully thought through. It is a huge hole in the Bill. It means that a garda coming to a house, knocking on the door and demanding to see the occupier and asking who is the owner of the house, would be told that the owner of the house is away. On asking, "Who are you?" the garda would be told that he is speaking to the owner's son. If the garda said that he wanted the son's name and address and wanted him to clear the place out, he would be told that he had no power to do so under the section because the son is not deemed to be the occupier because the Bill was badly drafted in the first place.

I do not understand for the life of me why we could not have had another 48 hours to look at this legislation to see whether there were mistakes in it. There is a huge hole under the waterline of this legislation. If a member of An Garda Síochána arrives at the door of a house, the person who opens the door and says he is the son of the owner is not the occupier if the owner resides in the house even though the owner is not there. What a crass error to make, and it has been made here. The powers we are rushing through will be useless in the hands of the Garda because of the rush with which this legislation has been put through.

I need hardly point out to the Minister of State that the Bill, on page 5, states, "In proceedings for an offence under this section consisting of a contravention of a dwelling event provision, it shall be presumed, unless the contrary is proved, that the occupier of the dwelling in respect of which the offence is alleged to have been committed was the event organiser." The poor husband who was not there at all shall have a presumption against him. By the way, that presumption cuts the other way because the person who actually ran the drink party and invited in all his pals will be presumed not to be the event organiser until the contrary is proven.

This Bill is a joke. It is seriously defective. It is coming here in circumstances where it cannot even be amended now. It was rushed up here from the convention centre for us to look at. We were not given any opportunity to put amendments to it. It is thrown at us in a hurry. It is not workable. A garda will neither be able to ask somebody at a door who is a son, daughter or wife, for his or her name nor will the garda be entitled to ask him or her, because such persons are not occupiers, to get everybody in the house to leave. What a joke.