Vol. 314 No. 6
I welcome the Minister back to the House. He is our favourite Minister at the moment.
We are resuming on amendment No. 6. Senator Ruane was in possession when we reported progress. Amendments Nos. 6 to 13, inclusive, are related. Amendments Nos. 10 and 11 are physical alternatives to amendment No. 9. The House agreed previously that amendments Nos. 6 to 13, inclusive, would be discussed together. Does anyone else wish to speak on the amendment or the grouping?
I will speak to amendment No. 6. At the end of the last debate, Senator Ruane spoke about the impact of stop and search in relation to section 3 offences under the Misuse of Drugs Act 1977. Section 7(c) of the Garda Síochána (Powers) Bill includes controlled substances as defined by the Misuse of Drugs Act 1977 as a relevant article.
I am sorry to interrupt, Senator, but I want to remind the House that because the amendments were tabled by Senators Ruane and Black but they are not here, we must get written confirmation from them that somebody else can move their amendments. The Senator can continue speaking on amendment No. 6, which has already been moved, but that is the situation.
I understood that because they were part of a grouping, I could move amendments on their behalf. I will continue speaking on amendment No. 6 for now.
Senator Ruane spoke about the impact of stop and search in relation to section 3 offences under the Misuse of Drugs Act 1977. She highlighted the fact that the Bill included controlled substances defined by the Misuse of Drugs Act 1977 as a relevant article for the purposes of exercising stop and search powers. We are concerned about how this provision may be used to target people in possession of drugs for personal use, knowing the extent to which those powers are currently exercised to criminalise people who use drugs. Therefore, we are seeking to remove it through amendment No. 7. Criminalisation does not necessarily reduce drug use or stop the harmful use of drugs. It criminalises addiction and compounds the trauma and stigma of drug users. The people most likely to be caught in possession are often those who are struggling with addiction, mental illness, homelessness, chronic poverty, social discrimination, stigma and exclusion. Criminal records can have long-lasting impacts on their ability to enter education or employment and can create significant complications in the context of the custody of children, for example, and in relation to visas and immigration. Criminalisation acts as a barrier to people seeking help with their addiction and can be considered as a violation of their right to health. The interim report from the Oireachtas committee on drug use, on which Senator Ruane sits, and the citizens' assembly, in its findings, pointed to recommendations of decriminalisation in this context. The joint committee on drug uses is due to publish its final report shortly, which we hope will arrive at the same conclusion. It is not really possible to have a health-led approach to drug use without looking at these issues.
While the Government has a stated commitment to a health-led approach, the provisions of this Bill are moving in the opposite direction, expanding the scope for the continued, very large-scale prosecution of individual and minor drug users as a punitive model. Very often, they can be the easier target rather than dealing with more systemic and larger-scale offenders. Recent data released under freedom of information, FOI, requests demonstrates that violations of section 3 for simple possession can be one of the most common drugs-related offences in Ireland, making up 63% of controlled drug crime incidents. Around 4,000 convictions are handed down, with a cumulative figure of 20,000 since 2020. What this points to is a relatively low-level offence, about which there is some debate as to whether it is even appropriate to be treating it as an offence. In fact, there have been recommendations for decriminalisation coming from very significant levels and expert bodies and calls for a health-led approach. These offences are making up a huge bulk of the offences that are actually being investigated and prosecuted. There is a concern that we will see this being an excessively used component of new Garda powers.
Despite what has been asserted previously by An Garda Síochána, there has actually been extensive use of stop and search powers under section 3 to press charges against individuals in relation to simple drug possession. It is one of the easiest targets and evidence suggests that it happens most often. Data published by the Health Research Board, HRB, shows that drugs are consumed at the same rates in the top and bottom 20% of areas by wealth but the reality is that stop and search powers are presently exercised disproportionately in areas that are heavily policed and in socio-economically marginalised areas. This means that the burden of stop and search falls disproportionately on young, working class men because of stigma that surrounds them and their communities, not because there is a greater prevalence of drug use in their communities.
While it is welcome that a range of existing Garda powers will be codified into a single piece of legislation in this Bill, there is concern about the absence of proper guardrails and safeguards around how stop and search will be used, creating the potential for overuse, misuse, unequal use and, potentially, even abuse. The Irish Council for Civil Liberties, ICCL, has stated that the definition of "relevant article" as currently provided in the Bill risks creating a very wide legislative basis that could facilitate discriminatory enforcement by gardaí.
We have sought in this amendment to narrow the scope for these invasive powers through the removal of relevant articles in the amendments. There are a number of categories in that grouping in relation to amendment No. 6 in terms of suspected possession of stolen goods, controlled substances and a number of other aspects such as computer programmes and any other articles. I am apparently not empowered to move these amendments on behalf of Senators Ruane and Black so I am going to pass over to Senator Black to formally move them, but what Senator Ruane is pointing to is the concern that stop and search becomes disproportionately used and targeted towards certain areas for certain lower level offences and becomes a tool of potential misuse, abuse or offence rather than a thing that is used rarely and carefully in situations of very significant danger or threat.
I wish to briefly comment on the background of this. Senator Ruane is very strongly of the mind to decriminalise certain controlled drugs, and I just want to put on the record my views on this. When I occupied the position that the Minister occupies, there was quite a campaign in international magazines and the like to decriminalise, say, cannabis resin. There was a strong campaign that that should be done, and I had at that time misgivings about it. I wish to briefly put on the record what they were.
First, to decriminalise cannabis possession, for instance, when dealing with possession by a person over the age of 18 is all very well in theory, but the real question is, does it work out in practice? I do not believe that, if cannabis is available to persons over the age of 18 as a matter of choice, there is any practical way of keeping it away from kids aged 12 to 18. I do not think there is any practical way of doing that. Maybe people will disagree with me on that, but if you have a 19-year-old and a 16-year-old sitting on a bench in a park smoking a joint, there is no way that the Garda can effectively say it was criminal to allow the 16-year-old to have a pull on the joint but it was okay for a 19-year-old or 18-year-old to do it.
That was then, and what worries me is that, ever since then, there has been an accumulation of evidence to the effect that cannabis consumption is dangerous, particularly for young people. It produces psychosis in a considerable number of cases. It produces mental illness and has profound psychological effects on people who become regular users of it. I noted during my own college days that the chaps in my class in university who were regular, serious consumers did seem to be affected in their general day-to-day demeanour after a while. What has happened in the meantime is that the different types of cannabis have emerged. We cannot just say that cannabis resin is either harmless or non-harmless as a substance. There are very different types of cannabis with very different capacities to produce psychotropic effects and lasting side effects, one compared with another.
Senator Higgins has nobly raised the issue that Senator Ruane is anxious to have debated, but it seems to me that, first, I would like to see the report to which she refers to see whether I agree or disagree with it. I have not seen it. I have not seen how anybody proposes keeping adults, people aged 18 and upwards, free to use cannabis and yet keep it away from kids in their teens. We are now in the process of shifting the age for purchasing alcohol from 18 to 21 in a couple of years’ time in certain circumstances. Childhood does mean something and protecting children means something. It is all very well for people who like to smoke the odd joint to say they do not want a nanny state telling them what they should or should not do, but to decriminalise cannabis resin and its consumption is a step which is seriously potentially dangerous to young people. Cannabis can be consumed in various different ways but bearing in mind that a lot of it is done by smoking, it is also creating a circumstance in which kids are being encouraged to smoke at a time when the State's policy is to curtail smoking as a habit. There is the whole question of nicotine addiction added into it.
I wanted to put these views on the record. I do not agree that it would be sensible to remove paragraph (c) from the category of relevant articles, even though I accept the proposition put forward by Senator Higgins that it is quite possible that suspicion of being in possession of cannabis opens the door to searches, and that this is done more frequently to people from disadvantaged backgrounds. I accept that is not just a possibility but also in some cases a probability, but on the other hand, unless we are to walk away from the Misuse of Drugs Act regime in its entirety, even including the use of cannabis, it would make a nonsense of our State policy as it exists now and until it is changed to exclude controlled drugs from the definition of relevant article.
I was not here at the beginning of the conversation. I apologise for anything that is repeated. Whatever about the other removals, in relation to section 3, in terms of further cementing what is already a bad law in relation to section 3 stop and search powers, in Ireland, the section 3 stop and search power within the drugs Act is used and abused to profile, harass and have a very low bar for policing.
It is not necessary to have any sort of suspicion or evidence that somebody is in possession of a substance. In fact, it has been used, as admitted by An Garda Síochána in numerous committees, to find other crimes that are unrelated to drugs possession. They are effectively using the idea that a person may be in possession of drugs for personal use to stop and search people in the hope they find other crimes. For me, this is a really low expectation in terms of policing in Ireland and especially in relation to the fact that we know policing decisions impact certain communities more than others. I grew up being stopped and searched and it created a very negative precedent for the relationship between young people in our communities and An Garda Síochána.
Stop and search is used extensively. Each year, on average there are over 3,000 people before the District Court in relation to section 3 possession. That is a lot of people being stopped for possession, and they are the ones who have been prosecuted. If they are found to be in possession and receive a conviction, when it comes to Garda vetting and how that is logged, it is in the same category as rape and murder when a person's Garda vetting comes back. Imagine for a moment in the 1980s or 1990s, or whatever decade, when you were younger. If you or your friends or people you know were in possession of drugs even all the way back then, the section 3 conviction for possession is still on their record. It could have been £20 worth of what would have been cannabis at the time, before weed was really a thing in Ireland, in terms of possession. When they go for jobs, promotions, travel or anything else, that comes back under the section 3 category. Section 3 is so dangerous in relation to people's lives and how they can progress. It stays on their record. Having a stop and search power such as that has such a negative impact and consequence on people's lives. To remove section 3 as it relates to stop and search does not remove stop and search powers in the drugs Act. The rest of the drugs Act can remain intact. It is only in relation to possession for personal use, and it is not even the stop and search power; it is the possession piece that is named.
On section 15 and section 23, section 15 makes it an offence in relation to supply, in relation to trafficking and in relation to those bigger offences that the police say is what they are more focused on, so why are they not using section 15? The bar is higher when we take section 15 and section 23 in relation to stop and search. In the evidence that came before the drugs committee over the last while we had several contributions from people from the police forces of the UK, Canada and Portugal and they all said the same, especially the one from Porto. The commander in Porto basically said that he has a much higher level of trust in the ability of his police force to use their skills and training to detect supply and trafficking, which would be the equivalent of what we would use section 15 and section 23 for. Members of that police force are not using and abusing people who are struggling with addiction in the hope that they might find another crime.
When we think of section 3 we need to be very clear that we are not removing stop and search powers in relation to the supply, trafficking and intent around larger crimes. It is actually just that basic. Comparing our section 3 to the drugs Act in the UK, theirs is a bit more onerous but ours is actually a bit more harmful in terms of how it is laid out. While this may be more related to the drugs Act, I am apprehensive and conscious about bringing in further Bills around stop and search and not for us to have an honest discussion on section 3 and to solidify such stop and search powers in relation to possession. I do not think they do anything for any sort of trust-building or harmonious relationships between communities and the Garda. If anything, it de-skills the Garda skill set in relation to actually looking at that larger crime of supply in relation to communities and the sale and supply of drugs.
While I am under no illusion that the Minister will accept the amendment today, I do hope at least it will increase the understanding and awareness that section 3 is a needless mechanism to actually police. It does not water down stop and search powers, it just makes them more robust and makes it mean that the Garda at least have to have a reasonable level of evidence to stop and search someone for sale and supply instead of having such a low bar to use such damaging stop and search powers.
I thank all Senators for their contributions. At the outset I wish to clarify that what we are talking about here is grouping C of amendments that are on the list in front of us. That is a group of eight amendments comprising Nos. 6 to 13, inclusive. My amendments are Nos. 8, 10 and 11. The other amendments have been tabled by Senators Ruane and Black.
At the outset I will indicate what all of these amendments relate to. They all concern section 7, as Senator Ruane has indicated. More specifically, however, they all relate to the definitions contained within it of the term "relevant article". As we are aware, section 9 sets out the power to stop and search for possession of a relevant article. What the statutory provision allows for is that a member of An Garda Síochána who is in a public place or in another place authorised by law and has reasonable grounds to suspect that a person is in possession of a relevant article may, without a warrant, stop and search the person, and it goes into the details of that in paragraphs (i) and (ii).
The definition of "relevant article" obviously is central to the functioning of section 9 and the power that is purported to be given to An Garda Síochána. If we look at all of the definitions contained within "relevant article" in section 7 at present we can see it contains eight different definitions of what is included within the term "relevant article". Amendment No. 6 seeks to remove the first definition in section 7, "(a) anything stolen or obtained unlawfully". Amendment No. 7 seeks to remove paragraph (c), which is the "controlled drug" reference the Senator just spoke about. Amendment No. 9 proposes the removal of all of paragraph (f). Amendment No. 13 is a proposal to remove all of paragraph (h). If all of these amendments were given effect, the definition of "relevant article" that we would probably be left with would be explosive material, firearms and, under paragraph (g), a computer programme. We need to recognise that the power of stop and search that gardaí have arises in respect of much broader alleged offences than those covered by explosives and firearms.
I will deal with the amendments individually and, if I can, I will then deal with them in the order in which they have been identified. Perhaps I will deal with my own ministerial amendments first, which are very brief and they are amendments Nos. 8, 10 and 11. Amendments Nos 8 and 10 are technical drafting amendments to remove the reference to "in a public place" in section 7(e) and 7(f). This is to remove the location requirement as this is already contained in the underlying offence. Amendment No. 11 is a minor drafting amendment to section 7(f) to address a grammatical issue after "container".
I will move on to deal with the amendments from Senators Ruane and Black. They are suggesting deletions on amendments to the definition of "relevant article". Amendment No. 6 proposes to delete in section 7(a) "anything stolen or obtained unlawfully". Items that are stolen or obtained unlawfully are inherently associated with criminal activity and therefore it is appropriate that if gardaí reasonably believe that somebody is in possession of something that was stolen or obtained unlawfully, they should be entitled to stop and search a person in respect of that. For this reason I am opposing amendment No. 6. Similarly, amendment No. 7 proposes to delete the reference to controlled drugs in section 7.
Senator Ruane is proposing that we remove paragraph (c) in its entirety. I cannot accept this amendment as this is a restating and reclarification of a power that is already provided for in section 23 of the Misuse of Drugs Act 1977. This enables a member of the Garda to search any person whom he has reasonable cause to suspect is in possession of a controlled drug in breach of the 1977 Act. Controlled drugs remain a central focus of criminal enforcement due to the social health and safety implications. Retaining this subsection allows gardaí to address illegal drug possession, efficiently disrupt distribution networks, and prevent harm to communities.
If Senator Ruane's amendment was passed, it would, in effect, mean that there were very limited powers available to An Garda Síochána for the purpose of stopping and searching individuals in order to check if they are in possession of a controlled drug. I heard the arguments that were made. In effect, Senator Ruane is trying to do something she has consistently advocated, which is the decriminalisation of drugs. That is an argument that may be had. I do not agree with it but it is an argument that can be considered and discussed. I do not think a decision of that magnitude should be made by the back door by trying to remove a power that the gardaí have at present, which I believe they should continue to have. If we want to discuss decriminalisation of certain drugs, that can be discussed and debated, and legislation can be brought forward, but if we are bringing forward legislation, let us do something that is intended for the purpose of the legislation. This is about Garda powers. I want to give the gardaí statutory powers to stop and search somebody if the garda has a reasonable suspicion that the person is in possession of a controlled drug. The reason I do it is not in any way to try to target certain communities or anything suggested. The purpose is to try to protect people from the devastation that is caused to lives through drugs.
I was interested to hear what Senator McDowell had to say in respect of the 16-year-old and the 19-year-old, and how it would be impossible to keep the drug away from the 16-year-old if it was decriminalised for anyone over 18 years of age. It is also important to recognise the extent to which, since Senator McDowell was in college, the strength of cannabis has grown. This is of significance, particularly with regard to young men, since what we are talking about with respect to decriminalisation is, to a large extent, cannabis. I cannot ignore the fact that the scientific evidence available states that cannabis use has a very significant detrimental impact on the development of young people and their brains. It is damaging to them. We only need to look at what has happened in the United States. In the past decade, 20 states in the United States have made the decision to legalise cannabis for recreational use, not for medicinal use, for people over 21. What we have seen is the incidence of adverse health consequences for users skyrocket-----
That is not true. The evidence does not support that. It is important that the record is set right.
Senator Ruane knows that she can come back in. Will she let the Minister speak?
If the Senator does not believe me, it is interesting to look at what happened in The New York Times recently. It had an editorial, about six weeks ago, where it stated it was reviewing the policy it had in respect of the legalisation of marijuana. The Senator can look at The New York Times.
I believe the UN global commission on drugs, not The New York-----
The New York Times said that you cannot ignore the very significant health damages caused to young people as a result of the use of marijuana.
That has nothing to do with the policy.
That is what The New York Times stated and I thought it was quite significant when I read that. It is worth people considering that. It is the case, if you look to see what has happened in the United States, that cannabis has a significant impact. It can generate psychosis in young people. I am not prepared to ignore that. Leaving aside that, and I appreciate and acknowledge the consistency of Senator Ruane on this issue, if we are going to have a debate on decriminalisation or legalisation, let us do that in an open way. I do not think a Garda powers Bill is the correct way to do it.
Amendment No. 9 proposes the deletion of the reference to "a syringe, or any blood in a container intended by the person concerned unlawfully to cause or to threaten to cause injury to or to intimidate another". This is the same wording utilised in section 7 of the Non-Fatal Offences Against the Person Act. It is important to note that in the context of the Bill, a syringe is lawful unless it is linked to an unlawful purpose, such as an intent to commit an offence. Its unlawfulness arises from the intention of the person in possession of it, not merely by the item itself, and on this basis, I cannot support this amendment.
Amendment No. 12 to section 7 proposes to delete the line "or intended by the person for use". "Intended for use" allows gardaí to act based on reasonable suspicion of future criminal use, not just illegal possession. Some tools are neutral in themselves, such as a computer programme, password list, or encryption key, but can be used for crime. By requiring that the item is intended for use in committing an offence, the Bill allows gardaí to intervene when cybercrime is suspected to occur, while ensuring that stop-and-search powers are targeted at actual or imminent criminal activity. This approach recognises the realities of modern crime and I cannot support this amendment.
Amendment No. 13 deletes section 7(h), which applies to any article, focusing on intent in this context. Some items are legal in general but become criminal only when used in a certain way. For instance, a hammer is legal to own but if someone carries one to assault someone, it obviously becomes a criminal act. These provisions are intended to provide gardaí with clear, modern and operationally effective powers to remove dangerous weapons from public spaces and support the investigation and prevention of serious offences.
I should have said at the outset that I miscommunicated with my office when submitting other amendments. I have no interest in moving those amendments when we get to them. On section 3, I understand and accept the way in which I am going about it, but it is so associated with Garda powers that it is hard to separate them sometimes. It is important that we say that decriminalisation around the world has not increased drug use, nor has it decreased it. That is not its intended purpose. We need to not confuse the differences between policy harms and harms related to the drugs themselves, because they are two different things. Nobody who looks to decriminalise the person, not even the drug, is going to call people a criminal because they have a substance misuse issue or because they were found in possession of a small amount of drugs going into a festival with no intent to supply. What we really intend to talk about is that person.
If a relation that the Minister loved came to him and said that they smoke weed and think they are experiencing psychosis, I guarantee with my whole heart that the Minister will not ring the police on him. He is not doing that. Why would he accept the Garda powers in relation to it? The Minister might say he knows a good health professional or, if the relative is young enough, that he knows a youth worker who works specifically on substance use, and looks at how we reduce that. He is not saying that he knows the best place for his relative is in front of a judge. When we accept that premise, it is not saying that some substance use is not harmful, but asking where the best place is to deal with that. It is not in handcuffs.
That is to be clear about the intention. The global commission and UN treaty are all trying to figure out how they row back on the implications of what they have done for us with regard to the drugs Act and Garda powers. I will finish the conversation because I accept the way in which I am having it is not the space, but I ask the Minister to acknowledge, in his own time, though not now, that he is not ringing the police if someone he loves and cares about is in possession. He is ringing somebody he knows can help them. That is what decriminalisation is. That is about how we meet somebody with compassion and care, and create opportunities for connection, compassion and health intervention, and do not leave them with the drugs. People will not ring the police on someone they love. If we can accept that is how we would approach it, we would realise that putting someone in front of a judge is not the answer, so when we talk about decriminalisation, we are sticking to evidence. Whatever about what The New York Times has said, all the evidence from all the experts is that drugs policy often does more harm in the end to the person than the substance itself. I will not press it any further. Obviously the conversation is ongoing in Ireland, and we will continue to have it.
Nobody is denying that, in some instances, substance use can be harmful. It is just acknowledging that the way in which we approach it is not in front of a judge.
Is the Senator withdrawing the amendment?
I am withdrawing the amendment.
I welcome Senator Nessa Cosgrove and a group from Sligo to the Gallery: Neil and Toby Devine and Alo, Peggy, Keith and Fergus Farragher. They are all most welcome to Seanad Éireann.
I move amendment No. 7:
In page 9, to delete lines 8 to 10.
The Minister might perhaps enlighten me a little bit on this. I note this section is part of Part 2 of the Bill, which is headed "STOP AND SEARCH". Section 8 itself does not actually require that the stop and search power be exercised in a public place as a precondition to a member of An Garda Síochána making the demand for information provided for under section 8. I am slightly worried, I have to say, that it would enable a member of An Garda Síochána on private property to start asking people for their names and addresses, and make it an offence under section 15(a) to either not give a name or address or, alternatively, give a misleading address or whatever. Would the Minister care to comment on whether this power to demand the name and address of someone who is suspected of having committed an offence should be somehow circumscribed to situations where that person is in a public place, and that it cannot happen in a private home or another place? The definition of "public place" in the Act is fairly generous because it would include most dancehalls, for example, Copper Face Jacks - you name it, it would cover them all. However, I am concerned with people who are not in a public place within the definition of this Act. It seems to give an unlimited power to members of An Garda Síochána to demand a person's name and address and age if a garda believes or suspects on reasonable grounds that he or she has committed an offence. I find that a worrying power. Is the term "offence" limited? Offences can mean a lot of things. Should the fact that a person might have in the past committed an offence make him or her liable, no matter where he or she is or in what circumstance, to a demand that he or she give his or her name, address and age to a member of An Garda Síochána on the hazard that if he or she does not do so or does so in a misleading way, he or she commits an offence under this Act? It seems to me that this power is located in a stop and search part of the Act but it is not located in its terms to being exercised in any particular place at all. I am not asking the Minister because I have not put an amendment down, but would he consider, at the very least, between now and Report Stage that the almost universal application of this section should be controlled to some extent rather than simply giving gardaí the right to demand the name, address and date of birth of anybody they have reasonable grounds to suspect has committed any offence, whatever the offence committed? It seems to me it is too broad.
I thank Senator McDowell for raising the issue. My reading of section 8 is that it applies to, obviously, any place where a garda is in a public place or a place where a member of the force is lawfully present. Nonetheless, I will give consideration to what he said and see whether or not it needs to be tightened up. At present, it states;
A member who has reasonable grounds to suspect that a person—
(a) has committed, or is committing, an offence, or
(b) is in possession of a relevant article,
may require the person to provide his or her name, address and date of birth ...
My reading of that is that it is in a public place or, alternatively, in a place where a garda is lawfully present. The point that Senator McDowell raises is why the alternative locations identified in section 9 and, indeed, section 10 are not included in section 8. I will give it consideration, but my reading of it is that it applies to a public place or any place where a garda is lawfully present.
I am glad of that. It looked to me to be too broad.
Amendments Nos. 14 and 15 are related and form a composite proposal. Amendments Nos. 14 and 15 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 14:
In page 10, line 2, to delete “do either or both” and substitute “do any or all”.
The purpose of amendment No. 14 is to make textual space for amendment No. 15.
The purpose of amendment No. 15 is to widen the power to search a person to include to "search any container or wheeled carrier or luggage which the member suspects to be or have been in the control or possession of a person suspected under this section or to have been abandoned by any such person;”." It seems to me that it should not be narrowing the power of search to the person. A member of An Garda Síochána might say, "You seemed to drop a rucksack" or "Who owns that rucksack? I am going to look at that as well." That seems to me a sensible thing. Likewise, I have to say, unfortunately, prams are used and so are tow trolleys for goods going in and out of shops and the rest of it. If one of those is not actually in the physical possession of a person who is stopped, what I wanted in this amendment was to make it clear that a garda could search those things as well.
We are dealing here with amendment No. 14.
It is an amendment that is unnecessary because the power in section 9 already operates in a comprehensive manner across both persons and vehicles and necessarily extends to items in a person's possession or control at the time of a lawful stop and search. Luggage and similar containers encountered in that context are already capable of being searched under the existing stop and search framework depending on whether they are on the person on in a vehicle being searched. The insertion proposed by Senator McDowell risks introducing unnecessary specificity into the provision by enumerating particular items such as luggage and wheeled carriers. There is a risk of equivalent items that are not listed being interpreted as falling outside the scope of the power. The Bill is deliberated drafted in broad terms to ensure the search power is technology-neutral and adaptable to a wide range of real-world scenarios.
While section 9 governs the powers required to stop and search a person and items in their immediate possession or control, unattended property, luggage or containers found in a public place fall under a separate legal framework regarding the examination of property found in public places. Because of that I cannot accept this amendment.
Amendment No. 15 is a result of an amendment not being accepted. The existing wording already allows the exercise of one or both search powers and provides sufficient operational flexibility. As the proposed expansion of search powers is not necessary no change to the language is required so I cannot and will not accept amendments Nos. 14 and 15.
That is a somewhat unnecessarily absolutist approach to this. If a member of An Garda Síochána sees a number of people and comes to the conclusion that one of them may have dumped a rucksack, for example-----
I have to go to the Dáil for a Bill. The Minister of State, Deputy Ardagh, is going to take over. Is that okay?
I thank the Minister.
Before I ask Senator McDowell to continue I welcome the Minister of State to the State to the House. I think this is her first visit to the House since her appointment. Congratulations on her appointment. I am sure she is delighted to be back in Seanad Éireann. We are delighted to have her back for this Bill and I am sure all the Members of Seanad Éireann are delighted for her elevation to high office
Hear, hear.
Before I call back Senator McDowell, I welcome guests of Deputy Lahart from the Rathfarnham Historical Society. I thank them for coming in. I am sure we will see them in the House later.
I want to join the Cathaoirleach in welcoming the Minister of State, congratulating her on her very well-merited appointment and wishing her every success in that appointment.
The Minister indicated, in the Minister of State’s absence, that in his view that if somebody has a pram or trolley, for example, or has had it in their possession that that is covered by the power of search of the person. I was saying to him that it was a very absolute view. It does not necessarily follow that a search of the person involves a search of a trolley or pram or knapsack that someone suspects of their having had in their possession but which they no longer have in their possession. If the Minister is very happy with his interpretation of the law I will not press the matter any further but I do think that some day some smart solicitor or barrister will raise this point and say there was no power of search of the pram; the person was standing away from the pram at the time and the power of search was confined to a personal search or a search under this Part of a vehicle and the knapsack, luggage or whatever in question does not come in within the definition. However, if the Department and the Minister are of the view, and if the Minister of State shares that view, then I will not put the matter any further.
Amendments Nos. 16 to 18, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Amendment No. 16 is a technical amendment to section 10 to delete “in or” and substitute “in, on or” for precision in page 10, line 21.
Amendment No. 17 is an amendment to section 10 to delete lines 23 and 24 and align the language with other provisions of the Bill.
On amendment No. 18 in the name of Senator McDowell, this is not considered necessary as section 10 is not intended to establish a separate regime based on whether a vehicle is attended or unattended but instead operates where a member has reasonable grounds to suspect the commission of a Schedule 1 offence and permits the stopping of a vehicle and the search of that vehicle and any persons in or accompanying it. In practice, where a vehicle is stationary and no person appears to be in charge of it, the relevant search power will depend on the circumstances and on the nature of the suspected offence. Such situations are dealt with under existing offence-based search powers, for example under the Misuse of Drugs Act 1977 where drug-related suspicion arises or under other applicable enactments depending on the circumstances and not by reference to a separate category of abandoned vehicle. Therefore I cannot accept the amendment.
Again, this is an example of the Department officials taking a very absolute position. God bless them if they are right but if they are wrong that is a different matter.
If a vehicle is stationary in a public place and locked and a garda suspects there could be, say, stolen property or controlled drugs inside it, has a garda the right to take out a jemmy and open the boot or to break the windows to get in? The Minister of State is saying this is covered by other legislation but I wonder if she is right about that. There is a tendency sometimes to be protective of the drafting that is done by the draftsman but I would ask has a garda the right to break the fly window of a car to take a look inside? Has he or she the right to jemmy open the boot? I do not know; I do not think they do. This is not purely personal; it is giving the gardaí reasonable powers to search not only abandoned vehicles but also stationary vehicles for which there is no explanation for their presence in a place. Is it open to a garda to force his or her way into a car on the grounds that he or she suspects that it may contain cannabis, for example? I wonder.
Does the Minister of State wish to come back?
I have no further comment to make.
We will go to amendment No. 16-----
Can I put it this way? I will withdraw the amendment if the Department at least opens its mind to the possibility that it is a good idea to extend the powers of search to vehicles that are under the control of somebody. Under this provision, you can search. This is not a sort of specious thing. Section 10 reads:
10. (1) This section applies where a member who is in—
(a) a public place, or
(b) any other place under a power of entry authorised by law
[...]
has reasonable grounds to suspect that an offence specified in Schedule 1 has been, is being or is about to be committed.
In those circumstances, the member can instruct the person who is driving the car to stop it and they can then search it. What I would say is that if there is nobody in charge of it, it is not in motion and it is just standing on a street, why not give the Garda the right to look in that vehicle rather than in the restricted circumstances described in section 10? I ask the Department to take a look at it and ask if this is an unintended loophole in the law. Is it reasonable to say that, as long it is being driven and stopped, it can be searched, but if it is just stationary and there is no person apparently in charge of the car, it cannot be searched under this provision? Is that a sensible loophole to leave in the law?
I thank Senator McDowell. I think the point is well made and we will discuss it further with the Department.
I thank the Minister of State. Then I will withdraw it.
Amendments Nos. 19 and 20 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 19:
In page 10, between lines 32 and 33, to insert the following:
“(1) The following shall not be considered reasonable grounds to conduct a search of a person under section 9 or 10—
(a) the age of the person;
(b) the race or ethnicity of the person;
(c) the clothing the person is wearing;
(d) the type of vehicle the person is driving.”.
I welcome the new Minister of State to the Chamber. Amendments Nos. 19 and 20 are grouped together. Amendment No. 19 includes a new subsection to prevent the targeted misuse of stop and search powers by An Garda Síochána under the Bill. As noted in an earlier contribution on stop and search, we are hugely concerned that the Bill, as drafted, provides a vast legislative basis for the use of these invasive powers that risk facilitating discriminatory enforcement by the Garda.
Amendment No. 19 inserts a new subsection that would set out circumstances that would not provide grounds for a member of An Garda Síochána to undertake stop and search of an individual. This amendment would ensure an individual could not be subject to indiscriminate search by gardaí because of their age, race, ethnicity, the clothes they are wearing or the type of vehicle they are driving. The Garda Inspectorate has previously advised of the concern expressed by all ranks of An Garda Síochána regarding the widespread use of drug-related stop and search powers to search people for other suspected offences. Gardaí have also noted that these stops and searches can be a stain on a person's character, as they are recorded on the PULSE system even in circumstances where no drugs are found on the person. As already noted, it has been demonstrated in Ireland that the courts are usually quite deferential to the legal thresholds for police searches set out by the Oireachtas, meaning that the Garda currently has wide discretion to exercise its stop and search powers. We must ensure that with the expansion of its powers under this Bill, people are adequately safeguarded from invasive, targeted and discriminatory policing by the Garda.
Amendment No. 20 seeks to introduce four new subsections that would safeguard individuals who are subject to invasive searches where the removal of items of clothing is required by An Garda Síochána. The removal of clothing during a search by gardaí is currently primarily governed by a 1987 ministerial regulation under the criminal justice Act. We think it is imperative that these legislative safeguards are included in primary legislation, and this amendment would have this effect.
The Minister of State will recall, I hope, the vigil that took place outside the gates of Leinster House just over a year ago, organised by Mothers Against Genocide. There was a very heavy-handed response at the time to this peaceful protest, which saw a number of participants arrested and subjected to strip searches at Garda stations. We wrote to the Minister at the time expressing significant concern about the heavy-handed response to the vigil but, perhaps more importantly, the extent of the invasiveness of the subsequent searches the activists were subjected to.
Strip searches involve a profound intrusion into a person's right to privacy and dignity. International human rights frameworks generally require that such searches take place only where they are necessary and proportionate and where they are conducted with respect for the individual's bodily integrity. It is imperative that we provide protection in our primary legislation that will govern stop and search by gardaí, in addition to the treatment of persons in Garda custody, to uphold individual rights that are only ever compromised where necessity and proportionality are well established.
Our amendment provides that a search that requires the removal of clothing other than a person's outer garments can only be undertaken with the authorisation of a member of at least the rank of inspector, ensuring an additional layer of oversight in regard to intimate searches. Additionally, such a search could only be authorised where a suspected relevant article could not be located on the person without the removal of their clothing. Finally, we provide that where a search requiring the removal of clothing is required, a member of the opposite sex shall not be present while the search is being undertaken. The wording of this amendment closely mirrors the provisions of the relevant ministerial regulation governing the removal of clothing during searches by gardaí and, with this in mind, we hope the Minister of State will consider accepting this as we feel it is a sensible and prudent proposal that is in line with other ministerial regulations.
I thank the Senator. I do recall the coverage at the time in relation to that incident. I think it was a Muslim lady who was involved.
While I understand the concerns reflected in this amendment, sections 9 and 10 already establish a robust statutory threshold of reasonable grounds for suspicion. This threshold precludes treating personal traits like age, race or clothing style as independently constituting reasonable grounds, as such reliance would be discriminatory and unconstitutional. The amendment also poses operational risks. While a person's age or vehicle type can never be the sole basis for a search, there are scenarios where these factors must form part of an assessment, for example, if a Garda is searching for a specific stolen vehicle or seeking an abducted child matching a precise age profile. This amendment could restrict members from using these specific identifying factors to establish grounds. I cannot support the amendment.
I will also speak to amendment No. 20, unless the Senator would like to come back in.
No, that is okay.
I appreciate the sensitivities of the situation the amendment seeks to address in relation to that particular incident. I think it was one lady at the time. Under sections 9 and 10, a Garda member must have reasonable grounds to search a person or vehicle. The Bill already provides that gardaí will require a person to attend a Garda custody facility for the purposes of a search of the nature that the amendment describes. Once a person enters a Garda station, the member in charge is responsible for their welfare and safety.
The Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 provide, under regulation 17, several of the protections sought. A person in custody shall not be searched by a person other than a doctor of the opposite sex. Where a search of a person in custody involves removal of clothing other than headgear or a coat, jacket, glove or similar article of clothing, no person of the opposite sex shall be present unless that person is either a doctor or the member in charge considers that the presence of that person is necessary by reason of the violent conduct of the person to be searched. A search of a person in custody involving removal of underclothing shall, where practical, be carried out by a doctor.
As an operational matter, it is more appropriate to regulations than primary legislation. I cannot accept the amendment.
In relation to amendment No. 20, maybe the Minister of State does not have access at the moment to the data on the number of strip-searches that happen and the number at which doctors are present. Over many years, there have been only rare occasions on which it has been communicated to me - whether when I am supporting people in court in relation to community work, addiction or whatever it may be, or even from my own experience as a young person encountering the criminal justice system - that a doctor has been present. I am not saying that is the experience across the country or outside certain urban spaces but it is important to hold that data. I do not want to misrepresent anything but I am pretty sure in the case of the strip-searches, one of which was reported to be more invasive, that happened in the wake of the Mothers Against Genocide protest that a doctor was not mentioned. I am open to correction on that.
It is extremely invasive and is used even without suspicion that somebody is holding or concealing a weapon. If you have been arrested off the street because of an altercation that has happened, it is extremely difficult when a strip-search is happening off the cuff for somebody to put something inside their cavity so quickly.
Stop and search has been used a lot during planned intakes when somebody is being moved from court to prison. I did work recently with men in St. Patrick's Institution and they spoke about how strip-searches and cavity searches were used as form of humiliation on them as boys housed in adult prisons. Aside from when there is reasonable suspicion that somebody has something in their cavity, especially at the level of indecency of a strip-search, some people have had a negative experience over the years, with strip-searches being used not because there was suspicion the person had something hidden in their cavity, but by someone with power as an oppressive tool with particular communities. I speak about this not to vilify the Garda, as such. I want to challenge historical cultures and figure out where restoration can happen. It is also because I do not want communities to spend the next ten, 20, 30 or 40 years mistrusting any authority figure because of a negative experience of something as intimate and degrading as a strip-search.
I remember being in a cell in the Garda station as an underage person and being threatened with strip-search. They were never going to strip-search me; they were just threatening it for fun. I do not know why we were taken. It was shoplifting in The Square or something. I speak about these things not only because I know how much they happen, but because that experience still lives inside me where somebody threatened to strip-search me and search my cavities, even though they did not intend to. As a practice, it needs to be minded carefully in terms of how we do that and how that happens.
Whether I push amendment No. 20 or not, we need to look at the culture in some spaces of using such practices in a degrading or invasive way. We also need data on the numbers of strip-searches or cavity searches. There is a difference, so we need to differentiate between the full cavity search and the strip-search. How often is a doctor present for those? What threshold has been met to warrant such a search? Is that recorded? Are we mapping that? Are there some communities where it is used more? Why is it used more? How is it used? Who is making that decision? Who has oversight on that? When is a doctor present? Those are questions I have more generally that probably cannot be answered on the spot. It is a sensitive subject for people and not many people speak publicly about their experience of being cavity searched because it is such a traumatising experience.
I would also love to know how many cavity searches happen where nothing at all has been found versus where something has been found, to see what is the benefit of actually doing cavity searches, especially if somebody has been arrested and brought to a station because of a situation that has unfolded sporadically on the street. By this I mean that rather than it being a case of gardaí following someone because they knew that person had something within them, there was an altercation, so X, Y and Z happened just because it had become part of normal practice.
The threat of a cavity search should never be used to intimidate or cause psychological harm. An Garda Síochána has strict guidelines and rules on how intimate searches are to be conducted. They can never be conducted in a public space; it always has to be done in a private setting. Depending on the particular power the Garda is using, searches should only be carried out where necessary and cannot be used for harassment. It they are ever used for harassment, that should be reported to the ombudsman.
On the figures for strip-searches where a doctor is not present, we will have to investigate that further. The Senator asked for mapping information. We do not have that available today but we will investigate further. We will also follow up on the facts in relation to Mothers Against Genocide in terms of what exactly was the outcome there in relation to that lady.
I move amendment No. 20:
In page 10, between lines 35 and 36, to insert the following:
“(2) Any search of a person under section 9 or 10 that involves the removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, shall be conducted only with the authorisation of a member of at least the rank of inspector.
(3) A member may not give authorisation under subsection (2) unless the member has reasonable grounds for believing that a relevant article cannot be found without the removal of clothing.
(4) A member may give an authorisation under subsection (2) orally or in writing but, if such authorisation is given orally, the member shall confirm it in writing as soon as is practicable and such authorisation shall include the reasonable grounds for the removal of clothing.
(5) Where a search of a person under section 9 or 10 involves removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no person of the opposite sex shall be present.”.
Amendments Nos. 21, 23, 29, 48, 50 and 52 are related and may be discussed together by agreement. Is that agreed? Agreed.
These are technical amendments. Amendment No. 21 is intended to correct a cross-reference in section 11(3). Amendment No. 23 will refine the wording in section 13 by deleting “, in accordance with this section,”. Amendment No. 29 makes a technical change to section 14: “Subject to this section, when” will be replaced by “When”. Amendment No. 48 amends section 25. It is a technical change to delete “made” and substitute “given” for consistency with section 25(2). Amendment No. 50 amends section 29 by deleting “to give to him or her” and substituting “to provide him or her with” to address the concept of biometric data, which we are retaining in this provision. Amendment No. 52 amends Schedule 2 by addressing an incorrect cross-reference; this will delete line 2 and substitute “Sections 17(1)(a) and 27(1)(a)”.
I move amendment No. 22:
In page 11, between lines 27 and 28, to insert the following:
“(c) the consequences of failing to comply with the search;
(d) the right to an interpreter to understand the reasons for the search, if the person so requires.”.
Section 12 sets out the right of a person to be informed of the reasons for a stop and search by a member of the Garda. It is welcome that the Bill includes provisions on that right but we are of the view that the section could be strengthened by the additions in amendment No. 22. The section as drafted provides that a member shall inform the person subject to a stop and search in simple, accessible language that: first, the person or their vehicle is about to be searched; second, the reason for the search; and, third, the legislation under which the search is being carried out.
Amendment No. 22 proposes two additions: that the member would advise the person subject to the search of the consequence if he or she fails to comply with the search, and that the person would be informed of his or her right to an interpreter if an interpreter is so required. This amendment would help to assert the rights of individuals subject to stop and search by An Garda Síochána. Regarding a person's understanding of the consequences of non-compliance, this provision would help to prevent the potential escalation of stop and search leading to unnecessary arrest for a potential public order offence.
Regarding access to interpretation, we must recognise that An Garda Síochána interacts with a broad spectrum of people who live and spend time in Ireland and that language difficulties could pose significant barriers to a person being informed of and understanding his or her rights under this Bill. We believe that where language barriers exist, An Garda Síochána should take every step to ensure that the person has access to a translator or translation service so that he or she can understand the context of his or her person or vehicle being searched. These are sensible additions that would serve to uphold and vindicate the rights of people who are subject to stop and search and we hope the Minister of State will consider them favourably.
On reducing the potential for an increased number of convictions in one instance, often somebody could be stopped and searched for one particular reason resulting in potentially one particular prosecution if he or she is found to be in breach of some sort of law. Where there is miscommunication, a lack of information or confusion about what is happening or a lack of understanding of the consequence of refusing the stop and search under whatever law is involved, it can increase the number of charges received in what would have been one single incident. As that number increases, whether that be failing to comply or other public order offences, all of a sudden, in one interaction, the number of potential charges can go up depending on how that interaction goes. We obviously know the consequence of that. If someone receives one conviction, it stays on his or her record for seven years but once he or she receives more than one, it stays on his or her record forever. When gardaí are interacting with the public or somebody they suspect of doing something, this amendment aims to bring about being able to do so in a way that reduces the harm that could be caused through that interaction.
I sympathise with the first paragraph concerning the consequences of failing to comply with a search because when one looks at section 15, if somebody obstructs a search, it is important that he or she should know that under section 15, he or she is liable on conviction on indictment to a fine not exceeding €30,000 or imprisonment for a term not exceeding five years year or both. These are serious consequences for acting the maggot on a street and resisting a search under whatever misapprehension be it assisted by alcohol or whatever else. What Senator Ruane is suggesting is that the consequences of not complying should be explained to people as they are in many other circumstances, for instance, for drunk driving.
I do not agree with her amendment with regard to the right to an interpreter. Gardaí cannot go up or down Camden Street equipped with interpreters to deal with everybody they might meet and want to search. I would ask the Minister of State to consider between now and Report Stage accepting an amendment along the lines of an explanation of the consequences of failing to comply.
Obviously there are serious consequences. Regarding subsection (c), the proposed requirement for a mandatory non-compliance warning is unnecessary because under section 12, the legal requirement for a notice is satisfied. When the Garda states the precise statute power authorising the search, this establishes its compulsory nature. Mandating an additional explicit warning regarding criminal prosecution serves no practical legal purpose. Instead it risks unnecessarily complicating a standard procedure that is already set out.
Regarding subsection (d), a roadside stop and search is intended as a brief, temporary and preventative check. In contrast, the right to a formal interpretation service is a custody safeguard, which we know works. We have translators for that. It is designed for formal detention, police interrogation and court proceedings. That is well funded by An Garda Síochána. Transplanting this into fast-paced street environments is logistically impractical. Waiting for a certified interpreter risks stretching brief stops into prolonged periods of involuntary street detention. The Bill already addresses communication barriers where a severe language barrier frustrates a street search. Section 11 permits a Garda member to transfer the interaction to a custody facility where established interpretation infrastructure ensures search integrity and individual rights.
I understand the point made by Senator Ruane regarding the extra charges and how when somebody has an extra charge, it stays on his or her record forever. In particular with youth offenders, it seems quite unfair and it is something I would like to look at in my role in the youth diversion space where we could get input from the Senator regarding her work with the Irish Penal Reform Trust.
The provision regarding interpreters can seem overly onerous. How long does that extend the interaction? When the Chamber was not meeting during Covid, I volunteered my time with homeless, addiction and health equity services concerning homeless people who needed to be isolated in certain hostels and language was obviously a big issue. Some of those systems had interpreters who were very quickly contacted over the phone and who then interpreted back and forth with that person concerning whether he or she was going to be hospitalised or transferred. Instead of seeing an interpretation service as something physical, there are other ways in which we can work in interpretation. I do not know how it would work. All I know is that I have seen it work in other areas so I saw it at first hand. When I worked in homeless services many years ago, there was nowhere one could go for interpretation so I have seen how far it had progressed in the intervening time since I was there. Even if it is not through this amendment, we should look at ways in which we integrate on-the-spot interpretation in all the different State institutions and arms of the State to ensure positive interactions and relationships and to reduce the impact of stop and search on minority or marginalised communities.
Translation technology is not as expensive as it used to be. Many gardaí by their own volition use their phones to reach out to people in that way but it is something we will consider.
Is the Senator pressing her amendment?
I will withdraw my amendment.
Amendment No. 24 in the names of Senators Ruane and Black has been ruled out of order.
Amendments Nos. 25, 26a, 26b, 27 and 28a are related and may be discussed together by agreement. Is that agreed? Agreed. Amendment No. 28a is consequential on amendment No. 26a.
I wish to speak to my amendment No. 26a on the first additional list of amendments, which has been circulated. The purpose of this provision is to insert a new subsection (3) into section 13 to enable the Minister by regulations to provide for any record, which is required by section 13(1), to include such particulars as the Minister may prescribe in such regulation of the race, ethnicity, nationality or other social characteristic of the person searched or of the driver of the vehicle searched.
This proposal is simply to enable the Minister to add to the requirements under section 13(1), which are mandatory recordable matters, a variety of other particulars that I believe are necessary. To answer the point raised by Senator Ruane, section 13(2)(b) requires the time and date of the search to be recorded. It occurred to me when listening to Senator Ruane's argument about people being brought to custody suites for the purpose of searches, that if the time, place and date of searches were required to be recorded, that would meet that point. Recording whether it was a street search or a Garda station search would meet that point. Although I have not put down an amendment to section 13(2)(b), it occurs to me that Senator Ruane's worry about people being the subject of intimate searches and the places where searches take place would be covered if the record that is made includes not merely the time and date of the search but where the search actually took place. I ask the Minister to look at that point because it seems to me that it would be a simple point to deal with between now and Report Stage.
Moving on to amendment No. 26a, which is a substitute additional amendment in my name, I do not know how practical this will be in every particular circumstance. However, it provides that:
The Minister may [require] by regulation ... [that the records] required by subsection (1) ... [would] include such particulars as ... [the Minister might choose to prescribe] by such regulation ... [relating to] race, ethnicity, nationality, or other social characteristic of the person searched or of the driver of the vehicle searched.
The reason for this is that it is known that racial profiling does take place by members of police forces right across Europe. My research led me to believe that a person in the United Kingdom was eight times more likely to be stopped and searched under the UK's police and criminal evidence and stop and search procedures if the person's skin was darker than olive or if they were black. They were eight times more likely to be searched. There may be some good reasons sometimes for racial profiling. There may be some good reasons in certain circumstances where particular issues are arising of a policing kind. It may be that those kind of figures are not just the fruit of prejudice. I accept that. I am not going to say that statistics of that kind are conclusive that there is institutional racism or prejudice in the policing process. Sometimes it may be that some racial minorities are engaging socially in activities which are a cause of worry. They are carrying knives or fighting in the streets or something like that. Alternatively, some social groups may be more likely to engage in certain forms of activity than others. That may be the case. Not much is proved by saying the number of stop and searches in Temple Bar is radically different from that on the main street in Rathgar. It does not prove that policing is necessarily irrational, prejudiced or whatever. It may be explained by other circumstances. I am saying that because I do not want to sound like I am on a moral high horse and say that all policing is inevitably going to have the same consequences for every group in society no matter how it is deployed.
I am making that concession at the beginning to underline my conviction that there is a very serious danger that racial minorities will be subject to inordinate and unjustified deployment of police powers. There is a danger that will happen. They always say that sunlight is the best disinfectant. The best way for us to counter prejudice and unconscious prejudice in the deployment of police powers is, in my view, to collect figures and statistics about it so that the Garda Commissioner can press a button, if this is all done on PULSE, and see that non-nationals are 12 times more likely to be searched than Irish nationals or that members of the Travelling community are eight times more likely to be searched. At least those figures and statistics would be known so that corrective policing policy can be deployed to make it clear to members of the categories of citizen that is referred to here, and even non-citizen, that policing is not just directed at them, if there is any sense that if they look sideways at a garda they will be searched while white people seem to walk past without ever being bothered at all, or that if a group of young people are stopped the black kid gets searched and the white kids do not. People must have some degree of confidence that the figures are there to show society at large, the Minister in particular, Members of this Parliament, and the public generally, how these powers are actually being deployed in practical circumstances on a day-to-day basis. That is why I mentioned "the place". Senator Ruane talked about her experience in Tallaght. If stop and search is far more frequent in Tallaght than it is in Rathgar, we should know that. That is why the term "place" is important to stick in as one of the matters to be recorded. It also covers the question of search in a custody suite as opposed to search in public, so we know how many people were brought to custody suites to be searched rather than simply searched in public. It is in that spirit that this amendment is proposed.
I am not trying to make the work of gardaí more difficult. Under this amendment, the Minister is giving a wide latitude as to how, if it at all, the Minister prescribes recording of these particulars. It may be, for instance, that it is impractical to work out whether Italians or French people are or are not to be noted down separately. The UK authorities can do this and in Northern Ireland, religion comes into it as well. I do not think religion is all that important here. I cannot imagine Protestants being picked on more than Catholics or vice versa. If that was the case, maybe Muslim minorities might consider that they were being unfairly picked on. In Northern Ireland and Great Britain, these figures are collected and are available. It acts as a regime which runs counter to unconscious or conscious prejudice as to how police powers are deployed in respect of people from different backgrounds and people who belong to social minorities. It is in that spirit that I intend to move amendment No. 26a.
When we look at capturing ethnicity and, like Senator McDowell said, at how racial bias or unconscious bias comes into how we make decisions around policing, there is also something in relation to ensuring that we look at class. For a long time, class was at the forefront of how police made their decisions in terms of what community they policed the most. If a community is more policed, a person is more likely to encounter gardaí in their day at regular intervals and have more exposure. If somebody is over-policed and the use of stop and search is used more on them because police are present in that community more, we are going to find that the community is the most represented within the courts or prison system. I would argue that in all instances of types of crimes. All types of communities, for instance, use substance. We have discussed stop and search in relation to the possession of drugs earlier, but it is relevant here. If you go to any District Court, you are not seeing barristers up on stop and search for possession charges. We are not seeing members of An Garda Síochána, teachers, pilots or wherever else there is another concentration. As an addiction practitioner since the age of 17, I know they are carrying substances but they are not represented in the prison system and statistics. If all types of people use drugs but not all types of people end up convictions for them, that has to tell us that there is a use of stop and search on certain communities. We will see more and more of that applied in relation to ethnicity and nationality.
When looking at my amendments alongside Senator McDowell's that names ethnicity, I attempted to mirror some of the information that is already taken on the PULSE system for victims of crime. I am not creating a new category that does exist, which is what initially was said. They just have not been used for stop and search. While nationality does not necessarily capture ethnicity, nationality is currently on the PULSE system for victims of crime. Home circumstances are also included. That can mean whether a person is living with somebody or living on his or her own. There are a few options and there are drop-down categories within that. While it does not get to the heart of ethnicity and class specifically in what I am putting forward, I am saying that currently on the PULSE system there are mechanisms for other ways to record. Why would they not be applied here?
The police in Scotland pushed back quite heavily around the adding of ethnicity as a category. They said that they do not police that way and do not have discriminatory practices within their policing methods. Just because the police are not sitting around and deciding to search a person because he or she is black, from a particular community or for whatever reason does not mean it is not happening simply because it is not acknowledged out loud. When Scotland's police resisted some of the categories, they were adamant that there were not discriminatory practises. When the recording of that data happened, we saw very quickly what communities are policed and stopped and searched. That is why it is very important.
I do not know why I have mentioned Covid twice in this contribution but I recall statistics that came out in relation to Covid and who received fines. I cannot remember exactly if it was the 5 km rule. When I compared the statistics of the people who received fines in relation to Covid regulations, they were not received at the Forty Foot where there were hundreds of people out swimming, on the beaches or in other communities. The likes of Ballymun and other places were hugely represented in the number of fines in the surrounding areas there. The police acknowledged at that time in the justice committee that the statistics were accurate. What is behind that is a decision. Who makes a decision about where gardaí are placed in any particular moment? Where they are placed is where they are going find reasons to stop and search people. It is not always necessarily because they are the community that are breaking the rules alone and that everybody else is not. Covid regulations are an example of that where all different types of people for whatever reasons were breaking particular Covid rules, but the fines were very concentrated in particular communities. That shows that policing decisions are made. It is good for us to be able to have a full analysis of how those decisions are made, how they are impacting those communities and how we integrate that understanding into policing methods in Ireland.
I support the amendments by Senators McDowell, Ruane and Black. It not an onerous task that we are asking the Minister to accept in these amendments. I will put it very simply. It is giving gardaí the pen. They have the ink in the pen to use when they are recording this data. It is important that this data is collected. We want a fair and just society for everybody living in this country, including people of different colour, race, ethnicity and nationality. Sometimes, they can be targeted because of that. It is important that we record that, get the statistics in relation to that and that the Minister produces those statistics on a yearly basis. I 100% support these amendments today.
I wish to raise a query in relation to subsection (3), which provides that "The person or driver who is the subject of a search referred to in subsection (1) may, at any time, make a request in writing to a superintendent of An Garda Síochána in the Garda Síochána district in which the search was carried out for a copy of the record." In circumstances where that person's agent, representative or solicitor acting on their behalf makes that request, I assume that would be permitted. While the section does not refer to agents, representatives or solicitors, I assume that somebody acting on their behalf would be permitted to request that record. I note that when we are discussing searches, some of the searches that take place involve members of An Garda Síochána placing themselves in harm's way. In my own hometown of Enniscorthy this morning, a search was carried out of a vehicle, which involved that vehicle ramming the Garda car. That is going go before the courts. It is important to remember that when are discussing searches that it is the gardaí on the front lines who are carrying these out and they are at risk. When incidents like what we saw this morning in my hometown take place, there is always a risk to the members of An Garda Síochána.
On the amendments, the one question I have about the amendments is what will happen if you ask somebody their religion as part of the search and he or she responds that he or she is not answering that question? Will it just be written down that they did not answer? I am just working through it. It says in amendment No. 26b that we want to record their nationality, gender, place of birth, occupation and religion. If somebody says he or she is not telling us what religion he or she is, what would be the answer?
Those questions are already asked in terms of victims, crimes and other systems on the PULSE system.
But this is a search.
Yes but it is in relation to how information about stop and searches is recorded on the PULSE system. If somebody does not give the information, he or she does not give the information but it does not mean you cannot or do not attempt to collect data on it. With the way the PULSE system is set up, you could have a drop-down option that said the person refused to give his or her religion. It would not create an offence. It is more about creating the conditions under which data can be collected rather than it creating an offence for a person who decided he or she did not want to give his or her religion.
There is one Government amendment in this grouping, which is amendment No. 25. It intends to make the language in section 13(2)(e) more precise on the basis that something seized will not be evidence relating to the commission of an offence but suspected of being such evidence. I will speak on all four amendments together. It is fair to say that in every walk of life, whether we are medics, politicians or gardaí, a subconscious bias comes into play. If you do not measure it, we cannot fix it. That is part of the context of what we are looking at. As for the PULSE system alone, when it comes to measuring ethnicity and those targeted, whether it be for their race, where they are living, their communities, their gender or their age, it is not the only way to skin the cat and to collect the data.
The purpose of recording information under section 13 is to permit the person concerned to get a record of the incident. The individual may require that for a number of personal reasons - this is in relation to the point Senator Byrne discussed - but it is intended to provide clear, factual information on which the person may rely. It was never intended to be used as a basis for reporting on the activity of An Garda Síochána. An example might be if you were driving a company car, you were pulled in and you needed to get evidence for work from the Garda that the reason you were late was because you were pulled in. Certain information they have gathered would be made available to you on an individual basis. That is the rationale for that section. I agree with the Senator on the important work members of the Garda do at the coalface. Daily, they are putting themselves in harm's way. When we are having this debate, we have to remember that and I thank the Senator for putting that on the floor of the Seanad today. I appreciate that.
Turning to the race and ethnicity issue, I read the first debate in the Seanad about the amendments being ruled out of order. I went through it and the argument for recording ethnicity in stop and search encounters is recognised by the Department and is often presented to improve transparency, accountability and the identification of discriminatory patterns. There is also a desire to document who is stopped and searched, including age, gender, ethnicity and the justification for the stop. The fundamental issue is not the lack of data but how stop and search powers are used. What matters most is that these powers are intelligence led, proportionate and clearly justified. This Bill focuses on strengthening the requirement for objective justification, improving oversight and accountability and ensuring stop and search is targeted at preventing harm and reducing violence, rather than broad or indiscriminate use.
I note the point made that it is broad and indiscriminate but we need the data to back it up so we can gather that information in a very visible way. There are other ways to understand the broader patterns of offending and victimisation without requiring demographic information to be recorded during every stop and search encounter. In Ireland, the Garda and the Government are exploring the use of an anonymised demographic information system, such as ethnicity or place of birth and linked via a PPS number, for serious crimes. This approach is intended for research and policy planning, not operational stop and search, and demonstrates that demographic data can be used safely to identify trends without increasing profiling risks. The policy is evolving on legal advice from the Attorney General.
On the proposal for a PPSN-based unique identifier for the criminal justice system, it is very much under consideration by the Department. The Department has sought legal advice from the Attorney General on the proposal. Subject to consideration of the legal advice, once received, it is envisaged that the necessary and appropriate enabling basis would be provided for in a suitable legislative vehicle to take into account race, ethnicity and perhaps where you are living.
A programme for Government commitment to introduce a common identification number for individuals engaging with the criminal justice system is a priority. In turn, this will address the lacuna in the implementation of long-standing Government policy, as set out in the national data infrastructure, which seeks to establish the consistent use of unique, trusted identifiers in public service administrative data, focusing on citizens, business and address identification.
Turning to the specifics of the amendments as to what and how the information is to be recorded, section 13 already provides for the recording of key information about a person stopped under sections 9 and 10. The person's gender and geographic location of the stop are also collected and recorded on the PULSE system. The nationality is recorded, where known, but during a search, it may not be a question that is asked - especially if an arrest does not follow from the search. The amendments could be read as requiring a member to prolong a stop and search to further collect information as to the person's ethnicity, social characteristics, place of birth, occupation and religion. A person's place of birth, occupation and religion are already captured on the national census. The term "social characteristic" is not. There is a better way and that is the use of a common identification number for individuals engaging with the criminal justice system. As more data is captured on the national census, more information can be reported more frequently without the need to amend primary legislation.
On a broader note, the 2025 report entitled An Evidence Review on Ethnic Monitoring in the Criminal Justice System authored by Brandon, Bracken and Pillay, which was commissioned by the Department of justice, reported in one of its findings that concern was expressed by participants that publishing data on minority ethnic groups involved with the criminal justice system could be interpreted negatively by wider society and result in stigmatisation of these minorities. On that basis, I cannot accept the amendments today.
I have just a couple of points. I do not really understand the census comment. Are we saying we will put some categories on the census that ask whether people have been stopped and searched? The comparison feels irrelevant. We are obviously talking about capturing data as it relates to policing methods but also with the idea it would be framed negatively against some communities, we need to be very careful when we say that because that is not what we are trying to achieve at all. If that was the case, I would not be fighting for all of these years to capture data on how much some communities that have been extremely underserved and under-represented for generations are policed. I would be afraid that I might be stigmatised or the people I care about or work for being stigmatised but I am not. We do it because it is the only way you begin to improve policing practices in order that you have a fair, equal and just criminal justice system.
If we stand over any legislation or any law that is not applied equally to all people, what it does is it undermines and underserves the justice system and democracy as a whole. We are then bringing in legislation that, when it is implemented and becomes active, will only be used on certain communities. We are not acknowledging that in the legislation because that will never be said out loud unless we actually collect the data so we can better protect and keep people safe. I am confused by what the census has to do with stop and search. We are not looking to see how many people of a certain ethnicity exist in the country. We are looking to see how the police make their decisions in terms of how much they use stop and search, in what clusters do they use it and for what reason.
I know the Minister of State has been recently appointed and that this attitude of the Department probably predates her appointment. Nothing I am going to say now is intended personally but I am shocked by the attitude the Department exhibits in its briefing of the Minister of State, as represented in her contribution. In Britain, it is considered important that racial minorities be protected by the provision of statistics that draw to the attention of the British Parliament, the police force and the public who is at the receiving end of the deployment of policing powers. The Minister of State has just said that the purpose of the information and data collected under section 13 is not for the purpose that the amendments in my and Senator Ruane's names are being sought. I get that and that is the whole reason the amendments are being proposed. I know that the Garda does not want to collect this information. I know it wants to be left alone. I know it does not want anybody to say that black people are being stopped four times more often than white people. It is inconvenient information. It disappoints me that the Department of justice is proposing this Garda powers Bill on the one hand and, at the same time, not balancing it with mechanisms to ensure that it would be socially just in the way it was implemented. That is my point. I know full well that this particular measure is intended solely to make the PULSE system as comprehensive as possible for Garda purposes. It was precisely for that reason that this amendment was tendered. It is precisely because there is no intention whatsoever to balance the increased policing powers being conferred on gardaí with some kind of editorial control at some point of which portions of the community are on the receiving end where these powers are deployed. That is what this amendment and, I presume, Senator Ruane's are all about. It is to make it possible for us to know that if we give additional powers to An Garda Síochána, what the social effect is, who is likely to be stopped, who is likely not to be stopped, how these powers are working out and whether in those circumstances something should be done about the manner in which they are being deployed. How will anybody know that black people are more likely to be stopped and searched if this information is not collected? Are we to rely on the Garda Commissioner? He would say that he does not spend all day every day running through the names and addresses or the skin colour of people. He would say that it is not in PULSE and that he does not have the time or the inclination to waste time on doing research of this kind. That is why in Britain the policing and criminal evidence legislation and the equality legislation were specifically circumscribed by an obligation to accumulate this data so as to act as a check against either unconscious or institutional prejudice in the manner in which policing powers are exercised, as opposed to the entirely neutral manner in which they will appear on the Statute Book of this country.
I do not understand for one minute the Minister of State's reference to the census. Senator Ruane says she is confused by it. I am not confused by it. I think it is a complete smokescreen. What could the census tell us about who is or is not stopped to be frisked on Camden Street on a Friday evening? How could that data help us in the slightest? That is baloney. It is clever baloney to suggest that the Attorney General is studying this issue and looking at the possible use of census data to assist us in working out whether stop and search is or is not being fairly implemented. With respect, that is rubbish. The Attorney General is a very wise and clever man. I have the greatest admiration for him but God bless him, he is not going to be able to do anything with census data to assist us on that.
As to the statement that personal public service, PPS, numbers are going to be used and that somehow if that is done, we will be able to know all the things that this data might reveal to us, let us take a look at that. Supposing a PPS number does in fact work out whether somebody is or is not a member of the Traveller community. I do not know whether it does but I doubt it very much. I do not know if the McDonaghs and the McDowells get different numbers so that somebody can work out whether it is a McDonagh or a McDowell who is getting stopped and searched. I do not understand that. Even if the PPS number of everybody was put on PULSE and, God almighty, the poor fellow on Camden Street was required to come up with his PPS number, in addition to his name, address and everything else, while he is being searched, how ridiculous a proposition is that? It is suggesting that the records made of the names, addresses and dates of birth of people who are stopped and searched will be cross-referenced with PPS numbers, which will somehow yield up to somebody who has incredible powers under the general data protection regulation, GDPR, to go and find out how many of those people ended up being identified as members of the Traveller community, immigrants or as being of a particular religion.
I say to the Minister of State that I suspected that this would be the reaction of the Department. I suspected that the first day we discussed this here and I see it now laid bare. There is no desire whatsoever to put in place the kind of measures that exist in Great Britain and Northern Ireland. There is an antipathy towards collecting that kind of information because nobody wants to know the outcome. Nobody wants to be able to say that black people are stopped more often. Nobody wants to know. I made the point that there was not even a reference to the place where a search took place. If Tallaght is getting it rather than Rathgar, this data, when the button is pressed, will not tell us that. I thought it was just a minor oversight but it is not. All of the information that is being selected here for recording is comfortable for An Garda Síochána because it protects the force from any accusation of unconscious bias or overt prejudice in some areas where policing powers are deployed unfairly against different categories of the community.
Having said that, I am not surprised. I suspected this three weeks ago and now I am satisfied that what is really happening here is a desire. The amendment I put down after the episode here a couple of weeks ago was designed to just make it possible for the Minister to assemble this information - not to say to him or the Garda that it must be done, but that gardaí may be required to collect this information.
There is no desire even to empower the Minister to set out in a regulation any social data of this kind or ethnic data or minority data. The idea that if we were to prove, for instance, that, as in England, people with dark skin were stopped five times more than people with white skin, that would somehow reflect badly on social attitudes on black people, or that it might play into the hands of racists that the gardaí are stopping people with dark skin more often than those with fair skin, I just cannot accept at all. That is inverse logic.
As for the census data, flying that kite is ridiculous. Census data will not help us in working out next year whether these powers are being deployed fairly. That will not work.
I cannot imagine how PPS numbers could be integrated into collecting data of this kind. Does my PPS number say that I am a middle-class man from Ranelagh or that I do not live on a halting site or that my parents are not Nigerian? Does my PPS number say that about me? I do not think it does. It says nothing about the colour of my skin, I assume, except I am getting red now thinking about this. When I say I am shocked, I am shocked that that is the attitude of official Ireland: "We do not want to know this data and we do not want to be informed of it and we want to give more powers to the Garda, but we do not want to accumulate any data which would inform us as to whether these new powers are being fairly applied across the board."
I started by saying I was not on some moral high horse, and I am not. I believe that powers will be applied unequally in the nature of things. I also believe that a young black man in London going down Oxford Street is eight times more likely, or whatever it is, to be stopped and searched by a policeman than a white kid is. Young black men know that. That is the reality of their existence, and if nobody is going to protect them from that kind of unequal deployment of police powers, it is a sad thing. Are England - and this is the question - or Northern Ireland or Scotland promoting racism by collecting this data, or are they saying to everybody in society, "We are keeping an effective eye on how the powers that we in Parliament, in Westminster and the Assembly in Northern Ireland and the Scottish Parliament, gave to our police forces and which actually affect real people with real characteristics unequally in our society"?
When I said I was shocked at the beginning, I am shocked that that is the attitude. I am not shocked that the fundamental, underlying explanation given by the Minister of State is that this is all about assisting gardaí to police rather than us keeping an eye on whether these new powers are in fact going to be the subject of any accountability in terms of how they are used from day to day on the ground. The references to the Attorney General studying PPSNs and census data and the like are a smokescreen of the most obvious kind for saying, "We will not even allow the Minister, under this statute, to collect this data because we do not want the Minister to be in a position to collect this data." If the amendment I have put down were to say, "You must collect A, B, C, D and E forms of data and it is mandatory to do so", that would be one thing, but if you say to the Minister for justice, "You may, at your discretion, collect this kind of data", and the answer is, "No, we do not want to do that", I see a very different agenda at play, I am sorry to say.
Senator Ruane said she was becoming confused at this stage. I think it may be down to the lateness of the night. I am fairly confused myself at this stage because I am not too sure whether we are talking about targeting and recording ethnicity or religion. Then the census was raised as a bit of a hare. That was really peculiar because I think relying on the census for information would put the Garda into a very invidious position, down to the fact of how things are recorded on the census. A nephew of mine caused an absolute barney with a census enumerator when he insisted on recording his religion as Jedi. It reminded me of the political scene in the UK about 30 or 40 years ago, when we routinely had a chap called Screaming Lord Sutch contesting every by-election that came up under the guise of his party, which was known then as the Monster Raving Loony Party. I can see that Senator Robbie Gallagher enjoyed that one. The census thing just seems to be a complete hare, as far I am concerned, because I do not think it is applicable or workable for the Garda. We are talking fundamentally about Garda powers. We are supposed to be making the job of gardaí easier or more effective or more efficient as a policing force. Do I remember correctly that when the PPS cards were coming in about 20 years ago there was a frightful controversy about whether people would be putting social welfare records on them? Does anybody remember that? I seem to remember it anyway. Senator McDowell mentioned the GDPR provisions of that. We are into a bit of a farrago here, and it is certainly not alleviating my confusion. I am more confused. The Minister of State might be able to elucidate.
To add to my earlier points and Senator McDowell's, I think the Minister mentioned that not all stop-and-searches result in arrest. At the point at which you can collect the data, that is the problem: they are being used when nothing has happened. The point is that even if you are not arrested, stop-and-searches are recorded on the PULSE system. You can be stopped and searched 20 times in a year, never have been found in possession of a drug or an article or stolen goods, never have committed a crime, never have done anything, and it is recorded on the PULSE system. It is basically surveillance at that stage because no bar was even met to stop and search the person. That is what happens when certain communities are over-policed. The same people are profiled. As for the idea that the system is set up to assist gardaí to police, who they police is what we are asking. As for the idea that it would encourage racism, maybe the real fear is that it will expose racism within the practices, not encourage racism in terms of how people view those groups.
Senator Joe Conway mentioned religion and ethnicity. There are two separate sets of amendments that capture a few different things, but I did not pick up on the idea of the PPS the first time until Senator McDowell said it. Are we saying that we would ask somebody during a stop-and-search for their PPS and then a determination would be made later? Are we going to say, "We need your PPS", and then that will open us up to all this other data?
What if people say they do not know their PPS number or ask a garda to come to their house with them so they can get it? How does the PPS number relate to actual stop-and-search activities?
I remember a story from when I was younger. When I start to tell these stories, I sometimes realise how different my experiences are from other people's. The PPS scenario reminded me of an absolutely bonkers policing practice in our community when we were kids. People will remember the culture of bringing your radio or CD player out to a field to sit and listen. Police used to stop and search us and tell us they were taking our radio. When someone would say that it was their radio that their mam had bought for them for Christmas or their birthday, the garda would ask to be shown their receipt. Standing in the middle of an estate with their radio, 12-year-olds were being asked for their receipts. Were they expected to take out their wallets and find the receipt for a present their ma had bought them? That is the madness of policing practices in some of our communities. You would say that you could go and ask your ma. Most mas probably did not keep receipts for everything. You could have a radio, Walkman or scooter for years but a garda could just decide to take it off you. They would tell you that if you did not have a receipt to show them, they would take it.
That is the level of craziness with which people were stopped and searched throughout their lives growing up. That was the nineties and the early 2000s. It was not that long ago really. People had that experience. If we are now saying that PPS numbers are going to be included, it reminds me of that mad scenario where people were asked for receipts and had their goods taken from them. We have to remember the way in which gardaí have used stop-and-search powers. There is sometimes a fear of insulting gardaí, as if they are a protected species. That is not helpful in challenging and changing cultures. It is okay to call out bad practice. It benefits us all. Addressing bad practice benefits society and the police themselves.
I will not go on too much longer but, before I leave today, I really need to understand a bit more the conversation in respect of the census and the PPS and how it relates to stop and search because it sounds a little bit like being told to go home to ask your ma whether she has the receipt for the radio she bought you a few years ago to stop a garda taking it off you. It sounds as bonkers as that scenario.
I have listened with interest to the debate this evening. I have a certain sympathy for the position articulated by Senator Ruane, particularly in relation to a disproportionate number of searches being carried out in certain communities. She cited some numbers in relation to breaches of the Covid regulations and mentioned the communities that were most impacted by those searches and the penalties that followed. That predates my own time on the justice committee but it was very interesting to hear about it as part of the overall debate.
I also listened with interest to Senator McDowell. He articulated statistics from the United Kingdom showing that people from a black community or people with a darker skin colour are eight times more likely to be searched than members of a white community. In one of his more recent contributions, he mentioned that a young black person going down Oxford Street is eight times more likely to be searched than a young white person of an equivalent age. I would be interested to see whether that is true. He made reference to that in one of his earlier contributions, saying that we want to avoid it. Our job as legislators is ultimately to legislate in an effective way to make An Garda Síochána more effective but also to address systemic biases. Policing in this country can be improved as a result of what we do through legislation.
Senator McDowell also said that on certain occasions, it may be justified for certain minority groups to be searched disproportionately. I am concerned about the possible unintended consequences of accepting amendments such as this arising from the manner in which the information collected is disseminated. Amendment No. 28a calls on the Minister to "publish in each calendar year a report". In light of the sensitivity of the information it is suggested to collate, there is a possibility that we would be opening ourselves up to unintended consequences. That information might be used by reporters to create sensational articles because of certain areas being subject to more stop-and-search activities or other searches than other areas, possibly with justification, as Senator McDowell has outlined. If there is justification for that, as the Senator has shown there may be, that should be taken into consideration. It is ultimately about trying to strike a balance. We must give An Garda Síochána discretion to carry out its duties and to protect our communities as effectively as it possibly can while also addressing the possibility of systemic biases being overlooked as a result of the suggested information not being collated and used effectively. My concern is about the availability of that information, whether it would be published in a report and whether it would be made available to newspaper reporters. That is of concern, given the sensitivity of the information. How can we improve policing and Garda powers and ultimately arrive at better protection and better protection in the communities we represent? I am concerned about the possibility of unintended consequences arising from some of the amendments being proposed.
I take that last point, which was that the media can make what they want of information. People like Tommy Robinson and Elon Musk will put two and two together and get 22 if they want. I appreciate that. However, what I am saying is that in light of the ruling from the Chair on the last occasion, the amendment I have tabled has been specifically altered to make it entirely voluntary and discretionary. There is no compulsion on a Minister to do anything with it. If he does not make any regulations, that is the end of the matter. The annual report does not have to mention anything because there is nothing there to be reported on.
There is something here that really does get to me. A decision has been made that we do not want to know. Senator Ruane made a very good point. If people are stopped and searched and found to be in possession of stolen property or whatever, they are arrested and summonsed or whatever. Something happens to them. They are brought to a Garda station and something happens. That is one thing. What is much less known with regard to stop-and-search powers relates to people who are entirely innocent. A group of four may be told to wait and that they will be searched. None of them have a knife or anything else on them. They are just left to stand there when members of Garda Síochána have told them they are to wait because they are going to search them. It is the innocent people who feel the brunt of unfair policing. I am not arguing for the naive view that everybody is entitled to an equal chance not to be detected committing a crime. I am not making that point. I am making a different point, which is that if you give search powers to members of An Garda Síochána and these powers are deployed in a manner that discriminates against minorities, they know it.
They know it because their son is stopped and searched more often because he is a black kid than the neighbour who lives next door whose kids are not stopped and searched that often. That is what we are talking about. We do not have to go further than looking at those burned-out houses in Belfast last night, which had nothing to do with anything, to realise how deep the sense of fear and oppression of racial minorities actually is. If you are in a minority and the system seems to stop you more often on the street than anybody else, you have to ask why this is being done if it is not the colour of your skin. Why is it being done?
I am going to come back to the Minister of State on another issue. Why does the Department not want to know the information that the British and the Northern Irish collect with a view to working out if the powers given to police in the United Kingdom are being fairly used with regard to minorities? Why would a Department not want to know that? This is wilful ignorance. Nobody wants to know this information because it makes policing more accountable and it ensures that if, in fact, stop and search is being unfairly operated in respect of certain social groups and minorities, nobody can prove it. Nobody in this House can prove it now. Nobody here can say for a fact whether black kids are stopped more often than white kids - nobody can do it - but if you are a black kid in London, you can actually prove it. By the way, when I mentioned Oxford Street, perhaps I should not have done so. In reference to Senator Kelleher's point, it may well be that apparently statistically discriminatory figures would arise from the policing of the Notting Hill Carnival. If you want to find some explanations for anomalies, you will find them.
What we are facing here is the Department, in the interests of An Garda Síochána, saying that it does not want this degree of transparency, and that it does not want it to be known that people who have never been in court were stopped more often than was statistically likely because of their membership of an ethnic group or whatever.
There was waffle from the Department about the census. How could the census possibly help? We have just had 100 years of census material. How could it possibly help? Perhaps the Central Statistics Office could ask people every year whether they had been stopped. Maybe we could get some of this information that way because it does have an ongoing collection of census data dealing with issues such as how many people in the community have been criminally victimised. As far as I know, the CSO has never collected information on whether people have been stopped and searched by the gardaí in the past year. I do not believe it will ever happen. If it is not going to come from the CSO by means of some kind of survey of that kind - no matter how clever the CSO is in devising surveys and no matter how reliable its figures might be if it did conduct such a survey - we are going to be in the position of being in a submarine without a periscope. We will just not know. We do not know what is happening. We are being asked to take it on trust that gardaí are immune from the unconscious prejudices which have shown up in the United Kingdom, including Northern Ireland. I do not accept that we should accept that.
Senators Ruane and McDowell spoke about the situation where a car is stopped by a member of An Garda Síochána. Let us say that there are four occupants in the car and it is searched. With the way the Bill is currently drafted, the garda will request the occupants' names, addresses and dates of birth. If they fail to comply with that instruction, it will be an offence, under section 15 in Part 2, to fail "to comply with a requirement of a member acting under the powers conferred by this Part". Senator Ruane spoke about how the individuals in that car will now have their records kept on the PULSE system, and these are people on whom nothing was found in this instance. There were no drugs, knives, guns or anything consequential. In the ordinary course of action, they would be permitted to continue on their way. However, if we insert this amendment as it is currently constituted, we will place an onus on the member of An Garda Síochána to go out and record their nationality, gender, place of birth, occupation and religion. These are people who find themselves in a situation where they are getting searched, but they could now also find themselves being asked about their nationality, gender, place of birth, occupation and religion.
If we insert amendment No. 26b into the Bill, it will become a requirement for the garda who carries out the search to ask these questions. A failure to comply with the requirement of a garda will carry the maximum penalty of 12 months' imprisonment on summary conviction, or on conviction on indictment a maximum fine of €30,000 or imprisonment for a term not exceeding five years. I suggest that in such a situation, the garda should not take the people out of the car and start going through these requirements line by line. Instead, the garda should simply say, "Thanks for stopping, now go on your way", and they could move on. I have massive concerns that a member of An Garda Síochána, who carries out a search on people who will not be prosecuted or found guilty of carrying out any offence, will still be obliged to record their gender, nationality, place of birth, occupation and religion. In a Bill that is seeking to streamline, modernise and reform the powers of An Garda Síochána to make the jobs of individual gardaí out on our streets and out on the beat stopping people and vehicles easier, this will create a disproportionate real-world barrier to the very thing we are trying to achieve. It does not make sense that simply because an individual has been searched, they will be required to give over all this information to the gardaí in circumstances where they have not carried out any offences.
I appreciate and understand the rationale and points that Senators Ruane, McDowell and others are making. I am particularly conscious that people are innocent until proven guilty. It seems a disproportionate barrier to place on people who have not committed any offence that this information could be demanded from them simply because they are a passenger in a car that got stopped. This does not seem proportionate or practical either. The gardaí should not be doing that.
I am going to speak briefly on that point.
Currently, all stops and searches are recorded on the PULSE system. Am I to understand that Senator Byrne is suggesting that people who are stopped and searched do not get added to the PULSE system, because that would be a case of telling them to go on their way, where they do not show up at several different points if they are overpoliced, where it is not just a one-off? Obviously, it matters if it is happening to people more than once. In all the times I was stopped and searched, I would happily say I was female and Catholic and so on, but the stop and search is more invasive in front of one's community. If it is too much to ask for extra data and we are just telling people to go on their way and make it easier, why are they going on to the PULSE system at all? Is there a suggestion that we should not be recording name, date of birth or whatever, so stop and searches just become completely invisible unless people have been arrested or found to be committing a crime?
I agree completely with Senator Ruane. Senator Byrne's point would be marvellous if somebody was stopped and searched, found to be clean and walked away. Would it not be great if the whole thing was forgotten in some way and there was no record of that person being stopped and searched? It would be nowhere. It would not exist. Section 13 of what the Government is proposing states:
(1) A member who carries out a search under section 9 or 10 of a person or a vehicle shall, in accordance with this section, make a record of the search.
(2) A record made under subsection (1) shall contain the following information:
(a) where known, the name, address and date of birth of the person or, as the case may be, the driver of the vehicle concerned;
(b) the time and date of the search;
(c) the reason or reasons for the search;
(d) the provision of this Part under which the search was conducted;
(e) the outcome of the search including, where a search results in the seizure of a relevant article or evidence relating to the commission of an offence, the article or evidence concerned.
(3) The person or driver who is the subject of a search referred to in subsection (1) may, at any time, make a request in writing to a superintendent of An Garda Síochána in the Garda Síochána district in which the search was carried out for a copy of the record.
This is mandatory. There will be a permanent record. The fact that anybody was stopped will be there and there is no escaping it. It will be known for all time that Michael McDowell was stopped. He is on PULSE, he was stopped and searched, and nothing was found. That is fine. He was suspected of something but it turned out there was no evidence. That is on the Garda record, but my ethnicity is a secret. The gardaí are blind and do not want to know that. That is the one thing they do not want to know. I would have hoped that the Department would say that if the Minister could bring in regulations to collect ethnic minority information or whatever, he would do it in a sensible way that the Garda could manage and there would be no major problem, but I am now hearing that the Garda does not want that information. Why does it not want that information? It is because the Garda does not want to be accountable by reference to that information. That is the worry here.
I go back to the point of how a person's PPS number could possibly assist. What kid going down Camden Street at 10 o'clock tonight, tomorrow night or the night after that will be in a position to hand over a PPS number? That will not happen. Unless we introduce mandatory ID cards - we have been promised that will never happen and that PPS numbers will never be used for this all over big brother approach - then PPS numbers are utterly irrelevant to all of this. Unless the Government is secretly cooking up the notion that it will put PPS numbers onto PULSE, too, and make them a requirement in future legislation, I do not see that happening. Likewise, census data is of no use. The Central Statistics Office collects that data. Unless it is subject to the 100-year rule, which is very helpful for accountability, and is a CSO survey of a non-census kind, such as criminal victimisation studies, there will be no trace whatsoever of which communities and subsections of the community bear the brunt of policing. That seems to be the deliberate policy of the Government. It does not want to know. It will not even accept an amendment allowing a Minister of the day to say they would like to know this.
Senator Ruane's amendment is more prescriptive and mandatory. For the very purpose of getting this amendment accepted, it was made extremely non-mandatory and discretionary. We now hear that the Garda does not want the discretion to enable itself to know these things. I think there is a lot of explanation due about why it is right for police forces in England and Wales to be subject to this regime, why it is right that the PSNI or the Scottish police should be subject to this, but in the good old Republic of Ireland, where we have a written Constitution that says that everyone is equal before the law, we do not want to know if the law is being applied unequally to individuals. I think that is shameful.
I am not doubting that there is a lot of merit in what is being said by Senators Ruane and McDowell. I did not take the opportunity to congratulate the Minister of State on her appointment and to welcome her. Tá súil agam go n-éireoidh go geal léi sa ról nua atá aici. Guím gach rath uirthi mar Aire Stáit. In the spirit of what happened previously, the Minister of State might take on board the debate and see if some consideration can be given to the views that have been expressed here this evening, because ultimately what we are looking to do is to improve legislation to make our communities safer. On the point made by Senator McDowell in relation to unconscious prejudices and possible biases that might exist, if a way could be found to iron those out and meet Senators Ruane and McDowell somewhere along the road, that would be a helpful approach.
It was remiss of me. I did not congratulate the Minister of State. I wish her the best of luck in her new role.
Gabhaim buíochas leis an Seanadóir as ucht a chomhghairdeas. On the proposal of a unique identifier, we know from section 13 that those who are stopped and searched will have their dates of birth, names and addresses gathered. The proposal as it is at the moment is that that information would be matched not by An Garda Síochána, but via PPSNs by the CSO, to get anonymised data on ethnicity, race and nationality. We know that the CSO is a trusted research provider of criminal justice statistics and informs policy. In Ireland and Sweden, we are examining the use of anonymised data for research and policy purposes rather than just for operational stop and searches. Similarly, Sweden collects place of birth information for research, not operational policing, so it is not directly comparable to stop and search. Anonymised demographic data can help to identify trends in serious crime safely, but operational recording risks profiling and creating tensions during encounters. As such, the approach in this Bill prioritises effectiveness and fairness over additional demographic recording, which has not been shown to deliver meaningful change in operational policing and could contribute to inaccurate data and racial profiling.
The fundamental issue in this Bill is not the lack of data, but how stop and search powers are used. What matters most is that these powers are intelligence-led, proportionate and clearly justified. This Bill focuses on strengthening the requirement for objective justification, improving oversight and accountability, and ensuring that stop and search is targeted at preventing harm and reducing violence, rather than broad or indiscriminate use.
Evidence from the UK shows that simply collecting additional democratic data has not on its own reduced violence or improved trust between police and the communities they serve. Mandatory recording of ethnicity has not consistently delivered better outcomes and can produce unintended consequences. These include increasing the administrative burden on officers, reducing time available for effective policing and heightening tension during encounters where individuals feel categorised or profiled. I am not in a position to accept the amendments.
The Minister of State had suggested that the PPS identifiers could be of relevance in that the CSO would have access to PULSE data, try to match that to name, address and date of birth, and then produce some survey. I do not believe the CSO has the right to do that. I very much doubt that it would go through all of PULSE working out which people had been stopped and searched and then try to draw this data itself. The more obvious thing to do is for the Minister to say to the Garda that it would keep this data. The Garda has a computer and a system with a drop-down box, so it should do it and then we would find out the result. Instead, the suggestion has been made that somehow the CSO would be given access to PULSE records of every individual in the country who was stopped, searched and found to be clean and totally innocent, and from that some CSO report would come.
Just to be clear, the CSO will not be trawling through PULSE. The Garda will be sending this information to the CSO. That is just what is included in section 13 - date of birth, name and address-----
That is-----
Sorry, the Minister of State without interruption. Is the Minister of State finished?
That makes it worse. The Garda will not give the Minister this information but it will give it to the CSO. That is barmy.
For clarity, will the Minister of State outline what data at this moment in time is actually collected on the PULSE system when a garda stops and searches a person? On a stop and search, what data is currently collected on the PULSE system by An Garda Síochána at this moment in time?
The person's gender and the geographic location of the stop are collected on the PULSE system. The name, address, date of birth, geographic location and gender are noted on the PULSE system at this point.
Is colour at this moment in time on the PULSE system?
I believe it is. Can the Minister of State please check that? Ethnicity is at this moment in time on the PULSE system. Some gardaí do fill it in and others do not, but it is actually on the PULSE system.
Ethnicity-----
Can the Minister of State please check with her officials there if ethnicity or colour is currently on the PULSE system at this moment in time.
Or nationality.
Yes, nationality.
I will come back to the Senator.
I need to pick up on the end point there. First of all, the idea was spouted earlier that the census would help us capture data. This was responded to in terms of our amendments, but what will be shared has nothing to do with our amendments. It was said that some work was ongoing with the census, but all that is shared with the census is exactly what the Minister of State has read, and it does not actually solve anything in relation to ethnicity or any of those things because they are not part of the information that is suggested to be shared with the CSO.
There is another point I just cannot let the debate finish on. I do not know if the Minister of State is hearing it or if other people can hear it. It was said earlier - and I am paraphrasing - that if we collect this data it could be seen as supporting racism; rather than hiding it, exposing it. It was said earlier. We support it by not acknowledging it because the people who already feel racially profiled feel racially profiled. We are looking to expose where that racial profiling is potentially happening. To say that this is supporting racism means that we are allowing this idea that legitimate racism is okay or institutional racism is okay, but God forbid it might stir up some commentators. What we are actually saying there is that we stand over and will hide systemic oppression and racism, but if we name it, God forbid then it would be in public and other people may be enticed to speak about racism or to target a particular group. We are supporting institutional racism by saying that statement.
It was further backed up in the last couple of sentences in the Minister of State's contribution when she said that in collecting this data people may feel profiled. If we expose that a certain ethnicity or a certain type of person is profiled, they may feel profiled. They already feel profiled by the fact that they are being profiled. It is putting something out into the general world and society where everybody else now understands it when people say "I feel like I am stopped and search more than other people", "Do you think I was stopped and searched there because I am black?" or "Do you think I was stopped and searched there because I am wearing a tracksuit or a North Face jacket?" They carry that all day long. They already feel profiled because they are being profiled. To say that and to actually bring that out in the open that those people may feel profiled, make that make sense. Again, that is like the racism - we might support racism instead of actually exposing it - it is saying that we are okay to keep it hidden, that we are okay to not name it, and people can just go around feeling profiled, but God forbid that you may actually give them real recognition for why they feel like that.
The Department, or wherever that narrative is coming from, really needs to look at the philosophical underpinning of what that says: the semantics, the language, and the meaning in making those sentences. People may feel profiled if we finally acknowledge that they are profiled. We would rather they go around questioning in a hyper-vigilant way all day if they are being profiled or not. That argument is so problematic and it definitely should not go out there as something that is creating some sort of fear around us acknowledging the reality of people's experiences and lives, or stop and search, or police practices.
In the very beginning of my contribution I did lay out that the argument for recording ethnicity in stop and search encounters is very much recognised by the Department. The proposal that I outlined is at this point a proposal. It is something the Department would like to consider. I have listened and I have read back on the debates. It is something that will be thought out, with the advices of the Attorney General and with the input of the CSO. At this stage I have nothing further to add.
Amendment No. 26 has been ruled out of order.
I move amendment No. 26a:
In page 12, between lines 3 and 4, to insert the following:
“(3) The Minister may by regulation provide for any record required by subsection (1) to include such particulars as may be prescribed by such regulation of the race, ethnicity, nationality, or other social characteristic of the person searched or of the driver of the vehicle searched.”.
As it is now past 10 p.m., I am required to put the following question in accordance with the Order of the Seanad of this day: "That the Government amendments undisposed of are hereby made to the Bill; in respect of each of the sections undisposed of, the section or, as appropriate, the section as amended, is hereby agreed to in Committee; Schedule 1 is hereby agreed to in Committee; Schedule 2, as amended, is hereby agreed to in Committee; Schedule 3 is hereby agreed to in Committee; and the Title is agreed to in Committee."
When is it proposed to take the next Stage?
Next Tuesday.
Is that agreed? Agreed.
When is it proposed to sit again?
Tomorrow at 9.30 a.m.
Is that agreed? Agreed.
