James Browne (Wexford, Fianna Fail) | Oireachtas source

I am taking this Private Members' Bill on behalf of the Minister for Justice, Deputy Harris, who unfortunately cannot be here.

I would like to begin by strongly condemning a small minority of people whose intentions in recent weeks have been to create division and who are engaging in intimidation rather than protest. Over the past year, communities across Ireland have demonstrated great solidarity with those who are coming here seeking refuge. Ireland has a moral and legal responsibility to provide shelter to those who come to our country fleeing war and persecution. I strongly condemn any attempt to promote division and hostility towards those who come here seeking safety.

I thank Senators Malcolm Byrne and Fiona O’Loughlin for bringing this legislation before the House and facilitating a discussion of these important issues. The right to protest peacefully is one of many rights protected by the Constitution and by numerous international human rights instruments, including the European Convention on Human Rights. However, the right to protest is not an absolute right. While people have the right to protest and that right must be respected, this is subject to the rights of others in our community. The right to protest is subject to other important principles such as the right of people to be safe, particularly where they are residing. The right to protest does not extend to the right to do this in a way that causes others to fear for their safety or in a way that threatens public order.

As is set out in the countermotion, balancing the right to protest with protecting the public and upholding the law is a complex task for members of An Garda Síochána. It is through its human rights-led approach to policing that An Garda Síochána seeks to uphold and protect the right to freedom of assembly and the right to protest, while also upholding the law and protecting the public and businesses. If that line between protesting and threatening or intimidating behaviour is crossed there are a number of provisions in our laws that apply. I wish to take the opportunity to recognise the important service performed by An Garda Síochána in ensuring public safety, order and peace in our communities. The Garda Commissioner is responsible for operational policing matters, including public order operations. Neither the Minister for Justice nor I have a role in directing the Commissioner regarding operational matters. I am informed by Garda authorities, that as with any protest, the policing approach is predicated on keeping people safe, preventing any antisocial and criminal behaviour and traffic management, where appropriate. I commend An Garda Síochána for carrying out this role in a professional way that safeguards human rights and public safety.

There are a number of existing laws that have to be considered when dealing with this issue. As Senator McDowell has pointed out, section 5 of the Criminal Justice (Public Order) Act 1994 provides for the offence of disorderly conduct in a public place. I am happy to have that matter looked at again regarding An Garda Síochána requesting someone to desist. I do not think that is required between the hours of 7 a.m. and 12 noon, but it is at any other time during the day. Section 6 of the same Act provides that it is an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned. Section 7 provides for an offence of distribution or display in public place of material which is threatening, abusive, insulting or obscene. Other provisions of this Act deal with Garda powers to arrest in public order situations and the issue of fixed charge penalties where offences are committed.

In addition to public order legislation, there are also other penalties on the Statute Book which may be relevant. There is already an offence of harassment in section 10 of the Non–Fatal Offences Against the Person Act 1997, which includes the offence of persistently following, watching, pestering, besetting or communicating with a person. It is also an offence under existing road traffic legislation to block or interfere with traffic for any reason. These and other existing parts of the Statute Book are relevant to the issues outlined in the Senators’ Bill and of course it falls to An Garda Síochána to bring its professional policing judgment and discretion to bear in how these laws are enforced.Legal advice provided to my Department by the Attorney General has identified these and other existing provisions that are highly relevant to the subject matter of this Bill. That said, the spirit and intention behind the Bill is clear. It arises from concern regarding protests that are intimidating to people in our communities. The aim is to protect the rights of persons to live in peace and not be intimidated by protest at their place of residence.

I turn now to the main provisions of the Bill. Section 1 provides a standard interpretation provision and defines the key terms of "protest", "target" and "residential dwelling".

Section 2 provides for an "offence of targeted protest" where a person organises or engages in a targeted protest at a distance of 200 m or less from a residential dwelling.

Section 3 outlines the penalties under the Bill. Anyone found guilty of a summary offence under the proposed legislation shall, upon conviction, be subject to a class D fine of up to €1,000. A person guilty of a second or subsequent offence shall be liable, on summary conviction, to a class A fine, imprisonment for a term not exceeding 12 months or both.

Section 4 provides a power of regulation-making for the Minister under the Bill.

As noted in legal advice provided to my Department by the Attorney General, the existing legal provisions, as I mentioned, are highly relevant to the subject matter of this Bill and require further detailed consideration. The Attorney General has also noted there is an issue of practicality with regard to the offence provision of the Bill. It could be argued that given the larger number of residences in any particular urban area of the State, that provision may be very challenging to enforce in respect of any large-scale protest through a town or city. For example, an industrial dispute or other matter of public concern giving rise to protests in an urban area, such as a march through Dublin city centre, might unintentionally result in offences being committed under the Bill. It is undesirable in principle to bring in laws that cannot be enforced as this brings the law into disrepute.

As the House will appreciate, this is a complex area, given the need to reconcile the existing right to protest, the need for public safety and the efficacy of existing laws on the Statute Book that are relevant to the subject matter of the Bill. The Government considers that this issue would benefit from further detailed consideration and public debate. For that reason, on behalf of the Minister, I have proposed amendment No.1, which is a timed amendment.

I thank the proposing Senators once again for their continued work and interest in criminal justice matters. As I have outlined, there is already a body of legislation in place to deal with the types of issues addressed in the Bill. I would not like anybody outside the House to think there is not legislation in place to tackle those who may be targeting people. However, this Bill deals with a hugely important issue and I would like to see how we might take it further. It would be worthwhile for the joint Oireachtas committee to consider the principles underlying the Private Members' Bill and its provisions, particularly in regard to reconciling the right to protest and the right to public order and public safety. I will seek to work with the proposing Senators and the committee in that regard. I thank Senators for supporting our timed amendment. I note in conclusion that as the Bill creates a criminal offence, the issue of a money message will need to be addressed in due course.