Criminal Justice (Public Order) Bill 2010: Second Stage

Tuesday, 25 May 2010

Dáil Éireann Debate
Vol. 710 No. 1

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Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): Information on Dermot Ahern  Zoom on Dermot Ahern  I move: “That the Bill be now read a Second Time.”

I am pleased to bring the Criminal Justice (Public Order) Bill 2010 to this House. The aim of the Bill is to replace the old begging regime which criminalised all begging at all times with a more humane and progressive approach where begging only will be an offence where accompanied by disruptive behaviour such as harassment or intimidation.

[59]In particular, the Bill takes full account of the judgment delivered in December 2007 by the High Court in Dillon v. DPP. Before we consider the Bill, it would be helpful to outline the main elements of that judgment. It resulted from an action by a person charged with begging who sought a declaration that the law under which he was charged, namely, section 3 of the Vagrancy (Ireland) Act 1847, was unconstitutional. The court found that section 3 was, in fact, unconstitutional on two counts. For the record, section 3 states that “every person wandering abroad and begging, or placing himself in any public place, street, highway, court or passage to beg or gather alms” is guilty of the offence of begging.

The court held that this specification of the offence was too vague and arbitrary and therefore in violation of Article 34.1, Article 40.1, Article 40.3 and Article 40.4.1° of the Constitution. Article 34 concerns the operation of the courts while Article 40 concerns personal rights.

Having just heard me quote the text of section 3, I am sure Deputies might understand why it was struck down. As can be seen, it is vague and generalised in the manner in which it defined the offence.

The court also held that the constitutional right to free expression and communication as provided for in Article 40.3 and Article 40.6.1° was being curtailed unreasonably by section 3. This merely confirms that, subject to the law, citizens are entitled to communicate with fellow citizens in the normal course of daily life.

The judgment went on to make very significant points that have been of great assistance in framing our response to the situation that we find ourselves in as a result of the decision. I can do no better than to quote directly from the judgment. The court stated that “an overall ban on all forms of begging is unconstitutional”, but added that “Nothing in this judgment should be construed as preventing the legislature making laws controlling the location, time date, duration and manner in which begging or the seeking of alms might take place and the age of any person involved in such activity”.

It is important I emphasise that in the case, which was not appealed to the Supreme Court because it was so clear and the legal advice from the Attorney General was that we would not win, the court stated that “an overall ban on all forms of begging is unconstitutional”. Obviously, we had to follow that in the framing of this legislation.

On the possibility that legislation may set limits on the right to communicate, the judgment stated that “it is undoubtedly so, that the right to communicate and the right to freedom of expression can be limited in the interests of the common good”.

A number of clear conclusions can be drawn from these remarks. First, begging can be controlled. Second, however, the law must be certain in its definition of the offending activity and it must be proportionate in any restrictions it places on what are, in other circumstances, constitutional rights. Third, begging, of itself, is not necessarily an offence — it becomes an offence only when accompanied by certain disruptive behaviour, for example, harassment or intimidation.

I welcome the judgment not only for the opportunity it gives us to update and express in modern terms the law as it applies to begging, but for the detail and guidance it contains. It gives an opportunity to move away from laws that have their origin in a dark and tragic period in our past — I refer, of course, to the Great Famine.

The Bill takes a radically different view of begging from the 1847 Act and pursues a more reasonable and rational approach. I want to make a few further points before addressing the Bill in detail. First, I emphasise that the legislation treats begging as a public order issue; that much is already clear from the Title. The year 1847 was a time of enormous social upheaval [60]and the Act may have had social control as part of its purpose, but circumstances have changed since then.

It is essential to note that this Bill does not present any threat or risk for the most needy and most vulnerable in society — all the social and other supports provided by State and voluntary agencies funded by the State will continue to be available. I also emphasise that the Bill has no impact on the conduct of, for example, public charity collections. These are already regulated by the Street and House to House Collections Act 1962 and by the Charities Act 2009.

The Bill contains five sections, the most important being sections 2 and 3. Section 1 contains the definitions of terms used in the Bill. In so far as possible, the definitions are aligned with the definitions in the Criminal Justice (Public Order) Act 1994. In that respect, I draw attention to, for example, the definitions of “dwelling” and “place”— they have the same meaning in this Bill as they have in the 1994 Act. For example, “public place” is given a wide definition and includes a highway, a churchyard or cemetery, a premises to which the public has access or a train or vessel. A “private place” is any place that is not a public place. This approach integrates the law on begging into the general body of public order law. It also promotes consistency, certainty and clarity in the understanding and application of the law on public or private places.

On the term “begging”, the Bill draws a distinction between the activity that constitutes begging and the circumstances where the offence of begging is committed. The activity is defined in section 1. Begging can arise in a public or private place. It entails seeking money or goods from others “without lawful authority”. In other words, the activity entails requesting money when in a public place and not having a licence or permit under any of the relevant statutes or by-laws and where nothing, either goods or services, is offered in return for the donation. When conducted in a private place, begging is defined as being done without the consent of the owner or occupier.

Section 2 provides for the offence of begging. It has general application — by that I mean it applies to persons of all ages and may occur in any place, either public or private. Bearing in mind that the court stated already, in Dillon v. DPP, that “an overall ban on all forms of begging is unconstitutional’, but noting also that it stated that this did not prevent the introduction of legislation that controlled the manner and circumstances in which begging can take place, the offence in section 2 is committed when begging is accompanied by harassment, intimidation, assault, threats to any person or the obstruction of passage by persons or vehicles. It is a summary offence with a maximum fine of €400 or a custodial sentence of up to one month, or both. I think an example will demonstrate the point I have been making. Anyone who asks another person at a bus stop late at night to help with the fare is, perhaps, engaged in the activity of begging but it is not an offence if done in an agreeable manner. It becomes an offence if the person threatens, assaults or intimidates his or her fellow passengers.

Section 3 is, to my mind, very significant. Deputies will recall from one of the extracts I quoted from the judgment that the Legislature may include appropriate restrictions in any laws on begging, and that the restrictions could relate to, for example, location, time and manner in which begging is carried on. Section 3 avails of the possibilities presented by the judgment in this respect. It bestows on members of the Garda Síochána a power to give directions to persons who are begging in particular locations or circumstances. Members of the Garda Síochána will be able to direct a person who is begging to desist from acting in that manner and to leave the vicinity of that place in a peaceful manner. Before dealing with each of the circumstances and [61]locations where this power may be exercised, I will note that subsection (6) requires the garda to use clear language when explaining the effect of a direction to any person.

Subsection (1) provides that the member may give a direction when he or she has reasonable grounds for believing that the person who is begging is acting in a manner that constitutes an offence under section 2 or gives rise to a reasonable apprehension for the safety of persons or property or for the maintenance of the public peace. As Deputies will recall, this can include begging on roadways or at busy junctions.

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Subsection (2) provides that a Garda may exercise the new power where the person is begging within 10 m of the entrance to a dwelling, an automated teller machine or a vending machine. These locations are chosen because they are ones where people are often distracted by the activity immediately at hand and often feel vulnerable in the presence of strangers. They may be fearful of having keys snatched as they enter or leave their home. In the case of ATMs, we know they are now an essential feature of our lives; many of us use them to transact much of our financial affairs. Having another unknown person in close proximity while operating an ATM can give rise to anxiety and apprehension. I had the reference to “vending machine” added so as to include machines in multi-storey car parks, for example. These are locations where people should be able to conduct their business with a sense of security and I believe this section of the Bill provides that security.

Subsection (3) provides that directions may be given where the person is begging within 10 m of the entrance to a business premises at any time when that premises is open to the public for business and the member has reasonable grounds for believing that the behaviour or number of persons begging is deterring the public from entering that premises. This subsection will prove very useful for traders whose businesses are blighted by the presence of persons who are begging. However, in line with the judgment, a person who is begging near a business premises but in a manner that is not interfering with customers, may not be subject to such a direction. The conditions in this subsection or in subsection (1) must be met before a direction may be issued. In other words, the begging must be causing obstruction or intimidating potential customers; it must be causing or likely to cause people to stay away.

Subsections (4) and (8) apply to a person who is begging in a private place or a private dwelling. Either a garda, under subsection (4), or the owner or occupier, under subsection (8), may direct the person to desist and leave the premises. Having regard to the special status under the Constitution of a private dwelling, subsection (7) provides that the garda may exercise the powers to give directions in a dwelling house when he or she is there with the consent of the owner or occupier.

A person who contravenes a direction from a member of the Garda Síochána is guilty of an offence and is liable, on summary conviction, to a fine of up to €300.

Before I leave section 3, I want to give a clear message about the enforcement powers under this Bill, especially those in section 3. It is my clear intention that the nuisance created by begging should not as a rule result in prosecutions and I am particularly keen to ensure imprisonment is not seen to be a solution. Section 3 enables the difficulty in any particular case to be resolved quickly and effectively without recourse to prosecutions. All that is required is goodwill and co-operation from those who are begging.

The powers in section 3 will save Garda Síochána and court time and will save costs generally. Each prosecution ties up a lot of personnel and resources that could be better used in other areas. Section 3 provides a means of avoiding many of those costs while also ensuring respect for the law. As regards reliance on imprisonment, I know it has to be available as a last resort but I am ensuring we have a means available to avoid prosecutions and as a result reduce the [62]possibility of sending people to prison for offences such as begging. The Dáil has recently passed the Fines Bill which will be signed by the President in the coming days and this will also have an added effect in that respect. On the overall scale of things, begging is a minor offence and prisons should not be used in such cases, except as a last resort.

Section 4 establishes the powers of arrest under this legislation. The section provides that the Garda Síochána may arrest without warrant any person who is reasonably suspected of having committed an offence under sections 2 or 3. A garda may require a person arrested under this section to give his or her name and address. Any person who fails to comply with this request or who gives false or misleading information is guilty of an offence and is liable to a fine not exceeding €200 upon summary conviction. Members of the Garda Síochána may carry out their functions under this section when in a dwelling only if they are in the dwelling with the consent of the owner or occupier.

I draw the attention of the House to subsection (5) which provides that a person’s address may be a place which he regularly visits. This has been added to facilitate persons who are without a permanent address and it ensures they can comply with the request for details of their address from the arresting garda. Section 5 is a standard provision on the Short Title of the Bill and the collective citation of the Public Order Acts. The citation underlines my earlier remarks on how this Bill is linked in to the Public Order Acts.

I wish to inform the House that I am examining whether additional legislative provision is required to deal with what might be termed as “organised begging rings”. If additional measures are required, it is likely I will bring them forward on Committee Stage. On a related point, I wish to make clear that the Bill does not alter in any way section 247 of the Children Act 2001. That section makes it an offence to procure or to control a child for the purposes of begging. A number of Deputies have made the point over the years that organised begging rings are in operation in major urban areas. I am open to amendments in that respect and I will be examining such provisions.

This is a short Bill but it is a comprehensive response to the High Court judgment. It enables the law on begging to be updated in a manner that is not only consistent with the Constitution, but also ensures maximum effectiveness in enforcement with reduced emphasis on prosecutions and penalties. It targets those whose begging presents an unacceptable interference with the normal conduct of life in society. Unlike the 1847 Act, which it is replacing, this Bill implies no judgment on the persons who are begging. Its only concern is the maintenance of public order where that order is being challenged by persons who are begging. In other words, the focus is on dealing with the activity that represents an unacceptable interference with public order. I am pleased to commend the Bill to the House.

Deputy Joe Carey: Information on Joe Carey  Zoom on Joe Carey  I have no doubt the irony of this legislation at this specific time has crossed many people’s minds, including the Minister and those officials who have drafted this Criminal Justice (Public Order) Bill 2010. I know that the Minister will not want to hear this — I do not say it facetiously — but the people of Ireland have surely been the victims of the greatest act of begging, or indeed even mugging, over the past two years. With NAMA and bank recapitalisation, the Department of Finance on Upper Merrion Street could be regarded as the greatest ATM machine in the country. At this stage, it would be nice to see the potential powers enabled by this legislation applied retrospectively. It would be just reward for the people of Ireland if the new powers included in this Bill enabling the gardaí to direct persons begging within 10 m of an ATM to desist and to move on from the vicinity, could be handed down to those who arrived in Merrion Square, with their hands out in September 2008 who indeed have exhibited persistent tendencies ever since.

[63]I congratulate the Minister on the initiative he showed last weekend at the Law Society of Ireland dinner with regard to his proposed Corruption Bill dealing with white collar crime. The Minister has made amendments to the Bill since publication of the general scheme in November 2008 and the Bill is the better for it. However, he still has some adjustments to make.

The purpose of this Bill is the provision of a legal mechanism to control and deter begging. It is regrettable, in my view, that we are debating this issue; it is regrettable that we as legislators are enacting laws to prevent the act of begging on our streets, at a time when many families are living in poverty. Begging is inextricably linked to poverty, homelessness and access to social services. The real issue here is that the Government needs to address the reasons we have a begging issue.

Until the High Court decision in Dillon v. DPP in December 2007, the law on begging in this country had been governed by the Vagrancy (Ireland) Act 1847. This law was introduced in Ireland during a period right after the Great Famine. The purpose of the Act was to regulate the social effects of the Famine disaster.

In 1985, the Law Reform Commission published a report on vagrancy and related offences, in which it recommended that the Vagrancy Act be amended, consolidated, or replaced, but not entirely abolished. At that time, the Law Reform Commission suggested that a general offence of begging should be retained. Then came the Dillon judgment, where Mr. Niall Dillon had challenged the provisions of section 3 claiming that they were inconsistent with the Constitution in that they interfered with his constitutional right to freedom of expression and to communicate, contrary to Article 40.6.1°, and were disproportionate and interfered with his constitutional rights to a greater extent than that necessary, having regard to the offence and the circumstances of the applicant.

Mr. Justice de Valera struck down the 1847 provision for being too broad and not attempting to balance the rights of society against those of the beggar. While he struck down section 3 of the 1847 Act as unconstitutional, the judge clearly held that there was no necessary constitutional problem with anti-begging legislation. So here we are at this legal juncture, having to provide for the practice of begging on our streets.

The distinction between begging and public nuisance is important in this legislation. In 2007, a Eurobarometer survey indicated that Irish people are relatively tolerant of the practice of begging on the streets. They are able to make the distinction that most people do not choose to beg, and that there are many underlying causes for begging in the first place.

According to the survey of 27 EU member states, on average, 36% of people give money to charitable organisations, while 74% of Irish people do so. Across the EU, 29% give money to people on the streets, while in Ireland we were again above the average with 32% of people doing so. Most interestingly, the EU average of those giving no help whatsoever is 18%, while the figure for Ireland is practically nil, at 2%. These figures indicate that Irish people are significantly more charitable in nature than our EU partners concerning street begging.

I would not like to see this legislation being imposed in a draconian manner. It must not be used as sledgehammer legislation to crack a problem which is a relatively small nut. Just across the road from my constituency office in Francis Street, Ennis, an elderly woman sits outside a parochial centre. She has been there for years, since before my time as a politician. I have never seen that woman intimidating or harassing anybody. At this stage, I would say that her presence seems acceptable to everyone. The terms of this legislation, however, would indicate that she could be fined or imprisoned for her actions. Given the data established on Irish attitudes to begging, I do not think anyone wants to see this legislation applied to cases such as the one I have just cited. That is why the distinction between begging and public nuisance [64]must be made clearer. The definitions of “harass” and “intimidate” as used in the Bill, are subjective in nature and somewhat undermine the High Court’s decision in the Dillon judgment, in which it was stated that “ overall ban on all forms of begging is unconstitutional”.

Section 1 attempts to recognise the judgment of the High Court in the Dillon case. It creates the balance or differentiation between what could be interpreted as a vindication of the rights, as recognised by the Constitution with regard to legal begging and begging accompanied by the aggravating factors of harassment, intimidation, assault, obstruction and threatening behaviour. I must re-emphasise that on Committee Stage the Minister needs to deal with the subjective nature of section 2.

Outside the subjectivity of section 2, the fact that this section does not refer in any way to the possibility of someone begging in a manner as described — whether by harassment, intimidation, assault, obstruction or threatening or, perhaps, by offering a token good or service in return for moneys offered — could render this section irrelevant, where the offence is thus defined. The Minister should re-examine section 2 of the Bill from those perspectives. I recognise that this needs a delicate approach, in that we do have a culture of quality street entertainment, including busking. However, it is a loophole that should be addressed at this early stage of its implementation.

The existing law on begging by children is covered by section 247(3) of the Children Act 2001. It is proposed that in this legislation no age distinction be made, but I am uncomfortable with this. The basic tenet in establishing our relatively new juvenile justice system was to create a distinction between children and adults. Raising the criminal age of intent to 12 years was a repeal of legislation dating from Victorian times, similar to what this legislation seeks to do by repealing the Vagrancy (Ireland) Act of 1847.

The fact that this legislation does not expressly make a distinction between an adult and a child is a regressive step. Notwithstanding the fact that children who are tried and convicted of an offence under this Bill will, as in most other cases affecting children, be dealt with in accordance with the child-focused provisions of the Children Act 2001, this element of the legislation is weak and not proofed vis-à-vis the Children Act 2001. Under section 247(1) of the Children Act 2001, a person is guilty of an offence if he or she procure a child, or allows a child in his or her care, to be in any street or public place for the purpose of begging. Section 247(3) provides that a person found guilty of an offence under this section is liable on summary conviction to a fine not exceeding €250, in the case of a first offence, or €500 for a second or subsequent offence.

Interestingly, under the Bill the offence of begging offers the liability on summary conviction of a fine not exceeding €400 or imprisonment for a term not exceeding one month, or both. One can conclude from this that the child convicted of begging can be fined up to €400 and imprisoned for a month, while the parent or person directing the activity can be only fined up to €250. The Minister should amend the legislation to correct this anomaly.

Under section 4 it will also be an offence to fail to give one’s name and address, or to give false details on arrest for begging, with a separate fine of up to €200 for committing this specific offence of failing to give one’s details. It is difficult to see how workable this particular section of the legislation will be. By its nature, begging is carried out by homeless people who have fallen on hard times and are often living rough on the streets. It will be difficult for some homeless people to comply with this requirement, in that an address at which they reside will not apply. I cannot see any provision in the Bill as published to mitigate the fact that a homeless person has a reasonable excuse for not being able to give an address to the Garda.

[65]The Housing Act 1988 defines a homeless person as somebody who has no reasonable accommodation to live in or who lives in a hospital, institution or night shelter because of the lack of a home. All of these categories can comply with the legislation. However, it is the visible homeless — those living on the streets and sleeping rough who also beg — who will potentially come into conflict with this aspect of the legislation.

In 2008, the Homeless Agency conducted a survey of homelessness in Dublin. It counted 2,366 people who were homeless in the city, of whom 110 were sleeping rough. Through his various media releases on this Bill, the Minister has been at pains to point out that he considers there are many appropriate services in place and that we should not have this level of begging on our streets.

I accept the point the Minister is making. It is essentially an academic, bureaucratic or end-of-year report type comment. The fact remains that there are many who for various reasons cannot avail of the services that are on offer. Despite the Minister’s opinion, the State has shown itself to come up short on many occasions.

One would not have to travel very far from Dáil Éireann any night to witness at first hand the rate of homelessness. It is quite disturbing to see people of all ages, men and women, sleeping rough on cardboard boxes and sleeping bags in the doorways throughout Dublin city. In my constituency office in recent months I have noticed an increase in the number of people requiring help with social welfare payments and entitlements. In many cases, for whatever reason, the Department is using the habitual residency clause to delay payments. Many of the people in question have no money and are under extreme pressure. The emergency budgets administered by community welfare officers are stretched and people are just not getting their money. That is happening more and more each week. The particularly bureaucratic nature of our systems and the retrenchment of many of our social services will contribute in a negative way to begging on the streets in future. Poverty related issues are likely to surface now that we are two years into the recession. The effects of long-term unemployment, the relentless nature of personal debt and the breakdown of relationships will manifest themselves on our streets in the years to come.

It is interesting to note that the vagrancy Act, which this legislation proposes to replace, was introduced in 1847, a number of years after the Famine began. The statistics as presented in the Bills digest for this legislation make for interesting reading. Those available are from 2003 to 2007. The year 2007 itself can be disregarded in that the Dillon judgment came into effect during that year. There is a consistency in the rate of conviction of approximately 35%, however, the number of proceedings varies, from a high of 729 in 2003 to a low of 395 in 2006, with 416 in 2004 and 663 in 2005. That seems to indicate an issue that is not receiving a co-ordinated and systemic approach. I do not think that is purely because of the lack of legislation. The digest does not contain any specific statistics on the proceedings and convictions carried out as a result of section 247 of the Children Act 2001. That, in itself, is a figure that would be of interest.

Section 3 deals with the powers of the Garda to give direction. Subsection 3(6) states: “A member of the Garda Síochána shall, upon giving a direction under this section, inform the person to whom the direction is given, in clear language, that if he or she fails to comply with the direction he or she shall be guilty of an offence.” What about foreign nationals who beg? In that case what would constitute clear language? What if the individual in question does not understand English or Irish?

[66]There is a strong belief that legislation alone is not the universal answer to the complex social issues surrounding begging. Begging is inextricably linked to poverty, homelessness and proper access to social services. While the legislation is necessary because of the vacuum created by the Dillon judgment, the Government needs to continue to address the reasons people beg. Those that are most vulnerable in society tend to be the first to suffer from cutbacks implemented on their behalf so that the economy might recover. The incidence of begging associated with racketeering must be addressed with legislation such as this, but the fundamental causes that force the majority of people onto the streets to beg must be addressed. It is worth noting that the individual who initiated the original appeal on conviction, Mr. Niall Dillon, was described as a “college graduate who had fallen on hard times”.

We in Fine Gael reluctantly support the Bill. This legislation alone will not solve the problem of begging, which is closely associated with homelessness, extreme poverty and access to social services. We should be spending more time dealing with these root causes, rather than criminalising people who are forced to beg having fallen on hard times. I look forward to tabling amendments to the Bill on Committee Stage.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  One would not get 30 minutes to deal with the banking crisis, yet we can devote that much time per speaker to dealing with beggars. When the history of this time is written, people will see in the middle of the year 2010 that at the nadir of the worst recession that ever affected this country in living memory our preoccupation in this House is with a Bill to put beggars in prison.

I am uneasy about the Bill. I note that its purpose is to replace the Vagrancy (Ireland) Act 1847. I do not get much comfort from that either, in the sense that I hope the Minister for Justice, Equality and Law Reform does not know something the rest of us do not know and anticipates the return of famine conditions given that the Bill replaces one that was introduced at the height of the Famine. In 1847 the unfortunate beggars were usually people forced onto the streets to beg because of famine conditions. They could end up being incarcerated in the house of correction for a month. The mindset has not changed much since then because the penalty outlined in the Bill in cases where the unfortunate beggar is unable to discharge the fine is a month in prison. Not much has changed. One has to look at the Bill in the context of the Bill we enacted last week, namely, one to diminish the number of times that someone unable to discharge a fine ends up in Mountjoy or in another prison. In this case we are expressly providing that where a beggar is unable to discharge a fine that he — beggars are mostly men — can end up in Mountjoy for a month. On the one hand we are sponsoring and advocating legislation the purpose of which is to limit the number of people who go to prison for failure to pay a fine and in this Bill we are expressly providing that the ultimate sanction is imprisonment for someone in breach, as envisaged in this legislation. It seems to me a head-on contradiction between our purpose in one piece of legislation and in another.

As the Minister indicated, the High Court struck down the Act in 2007 for the reasons he stated. It appears that it is the conventional wisdom, and certainly the wisdom of his departmental servants, that the visibility and extent of begging on the streets has increased.

Apparently, the Department of Justice, Equality and Law Reform is of the opinion that this phenomenon cannot be coped with within the existing legislation. It seems to believe that the public order law, for example, is not capable of dealing with it. Garda estimates of the extent of begging are questioned by those who work at the coal face. It was claimed in 2007, at the time of the Dillon case, that begging was an increasing criminal justice problem. The figures show that successful begging prosecutions fell dramatically in the years leading up to that action. Some 729 proceedings were initiated in 2003, but that number was just 395 in 2006 and [67]just 64 in 2007. There were 274 convictions in 2003, but just 14 in 2007. The statistics do not appear to be consistent with the claims that are made about a worsening phenomenon. A helpful table in the digest prepared by the library and research service sets out the proceedings initiated and convictions secured, etc., for the five years running up to 2007. I would like to hear more about the Minister’s expert advice in light of this apparent inconsistency. It is claimed that the phenomenon we are debating is worsening, but the statistics tend to show that the opposite is the case.

I do not seek to deny the anecdotal evidence that exists. There are concerns about this issue for a variety of reasons, some of which are quite complex. A number of people on the streets are begging for subsistence reasons. Some of them beg because they are suffering from the effects of the misuse of drugs, or from mental health problems. Others are immigrants who have fallen on hard times — members of the Roma community, for example. I accept that a distinction must be drawn between the phenomenon of begging, as we know it in this country, and the forms of begging that involve intimidation, harassment or serious activity that is likely to constitute a danger to drivers, for example. It should be possible to control this situation.

I have serious doubts about the merits of a law that threatens the incarceration of an ordinary beggar who is unable to discharge a fine. We passed the Fines Bill 2010, the underlying principle of which is to keep people who do not pay fines out of prison, last week. I appreciate these questions can be answered on Committee Stage. I wonder how deeply the Minister has probed this question. What sanctions are appropriate when the Garda feels it has to proceed with a prosecution in respect of a breach of this legislation? I am talking about the average person begging on the streets, rather than members of the criminal fraternity. How realistic is it to ask people who are down on their luck — the homeless, drug abusers or those who have been ejected from their homes — to pay fines of €200 or €400 in the knowledge that if they are unable to do so, they will be sentenced to months in Mountjoy Prison?

Deputy Dermot Ahern: Information on Dermot Ahern  Zoom on Dermot Ahern  That is the maximum punishment.

Deputy Pat Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  Some of these people are in such circumstances that they might welcome a month in the prison.

I apologise to the Minister for missing his opening remarks. I was surprised by the speed with which the amendments to the previous Bill were dispatched. The Minister seems to want to indicate that he does not intend imprisonment to be the normal consequence of the implementation of this Bill. I agree with that intention. I do not question the Minister’s bona fides, if that is what he is saying. Like me, he knows that what he intends is of little enough significance. It is what is written in the law that matters. That is how the court is going to consider it. It will not matter that the Minister of the day did not intend it to be used in such a manner. I am not sure what steps the Minister will take to ensure this legislation is implemented as he hopes.

I would like to ask the Minister about the definition of the kind of people who may find themselves in breach of this new legislation. Section 2(b) states that a person who, while begging in any place, “obstructs the passage of persons or vehicles, is guilty of an offence and is liable, on summary conviction, to a fine not exceeding €400 or imprisonment for a term not exceeding one month or both”. I wonder whether it is possible to engage in begging without obstructing someone. I was obstructed three times on Grafton Street today by representatives of worthy organisations who wanted me to sign up to support meritorious charities of one kind or another. I do not know how it is possible to be stopped on the sidewalk, and to be asked to [68]contribute alms to somebody who is begging, without that technically constituting an obstruction.

It does not matter whether one operates on the basis of the definition in section 2 of the Bill, or on the basis of the powers given to the Garda in terms of designated areas. Both of them are arbitrary and capable of arbitrary implementation. They are capable of being invoked at the caprice of the garda concerned. I find it difficult to reconcile that with the Minister’s hope that this will not lead to a number of additional people being incarcerated in Mountjoy. I suspect the Minister is acutely aware of why that is desirable. It is not for any great reason of compassion or humanity. I am not denying that he has either of those impulses. It is because of the acute and serious overcrowding in our prisons. I refer to the sheer pressure on our prisons as they try to cope with the number of people sent to them from the courts. We know from the most recent remarks of the retiring governor of Mountjoy Prison that the prison is horrifically overcrowded. The retiring governor of the women’s prison, Dóchas, specifically instanced overcrowding as the cause of her early retirement.

The last thing we need is for people on the streets, there for the complex reasons we have discussed, ending up being prosecuted and incarcerated. I look forward to hearing the Minister’s reconciliation of his aspirations in this regard with what is contained in the Bill. The opportunity will come to tease this out further on Committee Stage. The distinction between begging, causing a public nuisance or threatening someone can be difficult.

I accept the recent practice of the immigrant community, particularly but not exclusively by members of the Roma-Gypsy community, of turning up at cars waiting at traffic lights to beg or clean windows can be a traffic hazard. I accept the presence of some person, who can be intentionally intimidating or otherwise, in the immediate vicinity of an ATM can be a problem for some people and necessitates some control. I accept the Garda Síochána carefully implements sensitive measures such as those contained in the Bill.

Again, though, it will depend on circumstances like the wide variations seen when legislation on drinking in public places was introduced. Occasionally in this country we get a warm weekend like we just had and, accordingly, many people like to drink a pint outside of the pub in the open air on the footpath. One garda may simply note such an occasion and move on if there is no reason for him or her to do otherwise; another may be punctilious enough to cause the pathway to be cleared. Equally with this legislation, a great deal of arbitrary power is being left with the Garda Síochána to deal with begging.

In Strumpet City the character Rashers Tierney got around anti-begging laws by offering a trinket in return for a few bob. Similarly, this Bill’s provisions do not apply to cases where some trinket is offered. I would have thought some of our more enterprising beggars will latch on to the Rashers Tierney clause fairly quickly. What is the Minister’s view on this?

What is the Minister’s response to the comments made by Barnardos on the child-adult issue to this legislation? It has pointed out the Bill’s provisions will apply to a person of any age, including a child, who may be arrested without warrant. It claims the possibility of a child being detained under this legislation is in contravention of the UN Convention on the Rights of the Child. The charity stated:

This is a problem the Minister will have to address, as indeed are some of the comments in the observation paper from the Irish Human Rights Commission. It noted begging is frequently a direct result of being homeless and, in such circumstances, failing to provide an address should not be penalised. It recommended a defence of reasonable excuse be included in the Bill to cover such situations. As we well know in this House, homelessness is a complex phenomenon. Where there is no defence of reasonable excuse, the person is indeed vulnerable.

This is a minor single-issue Bill of which I do not want to make a meal. There is a necessity for a reasonable control of the phenomenon of begging. However, certain white collar persons in positions of responsibility have brought our economy to the edge of ruin for which ordinary people are paying the price. The latter demand some action be taken against those responsible for plunging our country into the depths of economic despair, yet, there is no evidence the former’s lifestyles have altered in the slightest. They still give us the two fingers in how they disport themselves. None of them has had his or her collar felt by the Garda Síochána or had any prosecutions taken against him or her. They have done more damage to this society than the entire beggar community could ever do. It seems the white collar individuals can do so with impunity.

Most ordinary taxpayers are immensely resentful of the hardships imposed on them by the Government when no action will likely be taken against those who have brought us to the stage at which we are, yet, this House can find time to bring in specific legislation to control beggars. If the only damage done to this country was that done by beggars, then we would be well able to afford to deal with it. It is far more serious than that. This House cannot find time to change the ineffectual legislation that means it will take forever to mount a prosecution against those white-collar persons, if ever there will be any, but it can to deal with begging.

The Labour Party will not oppose the legislation in principle. However, there are several matters which we must tease through with the Minister on Committee Stage. I would be pleased if, in his reply, the Minister would seek to address the belief in his Department that this is a worsening phenomenon, because statistics showed a fall-off in prosecutions before the Act was struck down by the High Court. On Committee Stage we will seek to advance three or four important amendments but, other than that, we will not oppose the legislation in principle on Second Stage.

Deputy Noel Grealish: Information on Noel Grealish  Zoom on Noel Grealish  I am pleased to have this opportunity to speak on the Bill. While welcoming the proposed legislation on begging, I am aware it is far from the mentality of any of us to come the heavy on people who may be, for whatever reason, on the streets begging for money. Many in the House come from a modest background but our sympathy for our fellow human beings must not blind us to the different aspects of the situation with which we are now dealing.

[70]Despite the recession, which has hit us and much of the world, we are a country that makes a decent effort to help our less well-off people. Those who beg on the streets must be directed to social services to get help and advice. There is a good deal of help for such people if only they would go and use it. Many of the people begging on our streets do not go near the social services. Services and money are available for those in trouble. It does people no long-term good to continue to beg on the streets.

Unfortunately, sometimes conmen and women are involved in this activity. Last year, I visited San Francisco and I noticed the amount of people begging on the pier there, especially near restaurants and tourist areas. Through friends of mine, I met some people who worked for the US Secret Service. One night, I was out for dinner and I commented on the issue to these people. They informed me that some beggars make a sizeable living from the activity and that the FBI had arrested an individual some weeks beforehand who was living in a house worth in excess of $500,000 and who drove a high-powered, expensive car and made this money from begging on the streets. He was an individual with one leg and he used this to his advantage. Such activities go on in certain places and we must have legislation to deal with the issue.

The background to the legislation used to deal with begging up to 2007 is a sad reminder of tragic times in our country. The Vagrancy (Ireland) Act 1847 was not our legislation. It was an Act framed under British rule aimed at the poor and destitute suffering from the effects of the Great Famine. Thankfully, terms such as “vagabonds” and “ruffians” in that 160 year old legislation are gone from our language. Despite whatever arguments exist between people in the country, we have moved on from such terminology and we have it within our control in our Parliament to frame humane and fair legislation.

The result of the High Court case of Dillon v. DPP in 2007 set certain boundaries for what the Dáil and Seanad could attempt in this legislation. It is not proposed to make asking for help in public places an offence. It is clear that in practical terms this makes sense. Many individuals and organisations look for money from us on the streets every day of the week for worthy causes. Such requests constitute fund-raising and are authorised by the Garda Síochána. One must acknowledge the tremendous work done by volunteers on the streets, including the Society of St. Vincent de Paul, Croí and, especially in Galway, the Galway Hospice, which provides a great service. Much of its funding is received from people on the streets, especially on Saturdays by volunteers going around with a bucket outside matches. Such fund-raising is controlled and organised and is for a very good cause. Apart from fund-raising, other requests for money or help for individuals come under the umbrella of free speech and free association, which are kernels of our democracy.

However, we must apply ourselves to the practical issues. The public has a right to expect reasonable protection from undue pressure in their homes and public places. Sometimes, I see people openly begging in places on Shop Street in Galway city and this can create an uneasy atmosphere for shoppers and tourists. Galway city needs tourists and needs to provide them with a good experience and a ceád míle fáilte. The money that comes in from tourism helps the community and the public purse in general.

From the digest of the Bill, I note it is proposed to ensure certain places are off limits for those who beg, including begging door-to-door or in people’s private property. In recent years especially around Galway city, one has seen many people begging from door-to-door with young children. They have been seen pushing prams, begging for clothes and this is a major nuisance to people in their homes. I am pleased this will be addressed in the Bill. It will become [71]illegal, as will begging within 10 m of dwellings, ATMs and vending machines. I note that begging would be prohibited within 10 m of business premises as well if such activity is deterring people from going into such premises.

I agree with these measures but I suggest other locations should be included as well. The restrictions should apply to the surrounds of churches and places of worship, especially in the major towns and cities. People coming out after masses and services often see people begging outside. Begging should be prohibited in the vicinity of buses and train stations. While walking to the Dáil from where I stay, I pass one or two train stations. One always sees at least ten to 15 people on both sides of a railway station or bus station targeting tourists in particular. When tourists move from town to town, many use public transport, that is, our trains or bus services. As soon as they come to our towns the first thing they see is people begging. I trust this will be addressed in this Bill as well.

A key aspect of the new legislation is clarity. I understand clear regulations may be laid down, but I foresee difficulties in their implementation. After all, there is little difference between 10 m and 11 m from an ATM. Under the proposed legislation, there may be begging without breaking the law at an 11 m distance but not at a 10 m distance.

Another area open to interpretation relates to what constitutes aggressive begging in public places. I understand how this could be a matter of argument. It would be a matter of the judgment of the gardaí on the spot and, to be fair, one cannot legislate for all situations. Everyone in the House agrees that begging has to be controlled, especially in our major towns and cities. These people on our streets always target our tourists. Often one will see a tourist walking through a major town or village and a lady with two young children can be seen walking after that tourist trying to intimidate and put pressure on him or her. This is annoying for the tourists that come to our towns. I compliment and congratulate the Minister on introducing these proposals.

Deputy Paul Connaughton: Information on Paul Connaughton  Zoom on Paul Connaughton  Like most other speakers and parties, Fine Gael does not oppose the Bill. I will refer to several issues and speak a good deal more when I am afforded the opportunity on Committee Stage. Many people gathering around the water coolers in the morning in various places of work will not be speaking about this Bill. There are issues to be discussed. I am pleased the Minister is doing his best to try to help the public, which, to this day, has great sympathy for people who have fallen on bad times.

Debate adjourned.

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