Barry Ward (Fine Gael) | Oireachtas source

I just wanted to make one point in respect of Senator Higgins's comments. In the first instance, I recognise the intention behind the amendments because she identifies some important issues. Section 121 of the Bill inserts into the Act of 2015 three new sections, 51A, 51B and 51C. Section 51B refers to the power of an immigration officer or member of An Garda Síochána to arrest a person and bring a person to a place of detention. On the face of it, that sounds like a draconian power. I acknowledge what Senator Higgins has said but it is important to remember that the provisions of Article 40 of the Constitution will always apply in cases like this. If anybody is detained in contravention of his or her rights under the Constitution, it is always open as a matter of constitutional law and long-standing precedent for a person to bring an application before the High Court at any hour of the day or night. That happens routinely in respect of such detentions. That protection is there in the first instance.

Second, as regards detention without warrant, there will always be a committal warrant. There is a process in place there and in order to accept that person, a prison or a place of detention must have a process, which is already established. The Bill does not specifically refer to it because it does not need to. The provisions are already there to protect that person. I acknowledge entirely what Senator Higgins has said and her concerns about unlawful detention, or perhaps more accurately detention that is over the top, because she has correctly expressed a concern that these provisions are more than is required. I understand where she is coming from but we must remember that the provisions of this legislation are designed to cover the whole range and spectrum of persons and activities involved in this. Section 51B includes the proviso that there must be a reasonable concern on the part of the immigration official or the member of An Garda Síochána that there is a need in these circumstances. In respect of all the dealings of these officials with a person who is a subject of this section, they must always exercise restraint and good practice. Sometimes it will unfortunately be necessary to detain that person because there is a reasonable basis to do so. In the context of Senator Higgins's proposed amendment, it must also be remembered that fundamental constitutional protections endure in respect of every person. The person does not have to be a citizen or have any particular status in this State. Once the State is the actor, the provisions of Article 40, or the habeus corpusof the Magna Carta as it is colloquially known, exist to protect that person and those fundamental protections exist in addition to the ordinary procedural protections.