Michael McDowell (Independent) | Oireachtas source

Section 1 is the definition section of the Bill. One might expect that care would have been taken to provide proper definitions in section 1, rather than ignore a real problem with the Bill.

I pointed out to the Minister that in the last Seanad we had a Bill that had left Dáil Éireann in a shambles and arrived up in the Seanad. It was called by a certain person a "dog's dinner" of a Bill. As a result of that it was debated at great length, as the Minister of State will recall, over a long period of time. The reason was, there was a flaw in the Bill at the beginning. I have no doubt that the then Minister, former Deputy Ross, would have pushed it through against the Seanad's wishes under the Constitution had he got away with it, but he could not because the Bill was flawed. It was a peculiar thing.

Senator Ward has identified the flaw that I have identified here. I want to put it on record that it is for want of a proper definition in section 1 of who an "occupier" is. I also want it on the record that we are being asked to proceed with a Bill that will not work. Gardaí are being given bogus, dud, so-called powers, which will not work for the reason I will outline. On page 6 of the Bill the term "occupier" is defined as meaning "a person who — (i) resides in the dwelling, and (ii) is the owner of the dwelling". This is one type of person and this includes a tenant of the welling because an owner is somebody who has an interest in it.

An occupier is also defined as "a person who resides in the dwelling pursuant to a licence". I guess this is a licensee: a member of the family, a grandfather, grandchild, son, daughter, husband, wife, cousin, lodger or whoever it may be. This person resides in the dwelling pursuant to a licence. However, then there is a ridiculous provision "except where the owner of the dwelling also resides therein". The result of this in the text means that where the owner resides in the premises his or her son, daughter, wife, grandfather, grandson, guest, lodger or anybody, is excluded from the term "occupier". Consider the consequence of that. The owner is not present on some occasion and a house party is going on. The gardaí arrive at the door and ask for the occupier's name and address but he or she is not there. To whom do they give a direction to vacate the premises and tell everyone to go home who has not an entitlement to be there? That direction is to be given to the "occupier".

The occupier, however, is not there. Under this section the gardaí have no power at all to direct the son, daughter or whoever to direct everyone to leave because the section is drafted to define "occupier" as meaning either the owner who resides in the premises, or somebody else who resides in the premises provided that the owner does not reside in the premises. This is like driving a car straight at a wall. It is insane to proceed with this Bill without a proper definition of "occupier". It defies belief that Dáil Éireann was convened this morning to rush this Bill through.The Bill has come here now, and a very serious flaw that drives the legislative car into the wall cannot be addressed because everybody in the convention centre has gone home for the next fortnight, or whatever it is. We are being told that we must pass this Bill in the next 50 minutes knowing that it has a massive hole in it and that the purported powers we are giving to members of An Garda Síochána will not work. They are a dud. They are a joke. They are a fraud as a power. If a grandmother owns the house and is not there and her son has 30 people in the house, he is not the occupier and cannot be told anything. The most ridiculous thing is that the poor owner of the house is presumed to be the occupier in any prosecution, which is even more ridiculous. The thing just does not stand up.

I appeal to the Minister of State, for whom I have great admiration because he is a reasonable man and has not been hoity-toity about this mistake in the legislation, to run up the white flag and to apologise because there is a problem here. The simple thing he could do is take an amendment now from the floor of the House. Perhaps Senator Ward's amendment would suffice to deal with this issue because he agrees with me that this is a significant problem with this Bill. The Minister of State should tell Dáil Éireann that it got it wrong this morning, that it sent us a dud and that we are not proceeding with it. Alternatively, he could tell the Dáil that we are proceeding with it by amending it to make sure it works and it does what it says on the tin. Instead of that, we get this autopilot business. The Minister of State has happily half-distanced himself from the use of the guillotine, as have other Ministers today. The number of apologies that have been made to the House today is phenomenal.

It is not the end of the world if Dáil Éireann has to be reconvened on Monday or Tuesday to deal with this Bill with an amendment from us. What is the end of the world is to deliberately pass a Bill we know is a dud. All that is required is the insertion of a proper definition in section 1, the definitions section, that is carefully drafted and would actually work. Instead, we have the diametric opposite. We have provisions that gardaí can give directions to the occupier of a house to send everybody home, but the occupier could be anywhere else but in the house and not present to receive this. Gardaí can demand of them the name and address of the occupier but, of course, the occupier is not a member of the family because the owner of the house resides in it.

There are other people with amendments but I plead with the Minister of State. It is grotesque to go on with a Bill when he knows there is a big hole in it, and to say his instructions from the Chief Whip are to bash on with this by driving the car into the wall and going to the panel beaters later. To say "I don't care, that's the way it is" is not the way to treat the Oireachtas in its entirety and it is certainly not the way to deal with a House that wanted to debate this. There is a whole stack of amendments down. Members are being told that they cannot amend anything and that the Government knows best. The Government wants to pass the Bill as it is, with this massive hole in it making it more or less useless. It is pretending to the public that when a Garda knocks on the door, he has a right to direct people to go home when he does not because the owner of the house is not present. That is ridiculous so I am opposing the section.