As government again removes asylum-seekers and their tents, the notion of ‘a criminal offence in principle’ remains unknown to law and the Canal Act expressly disapplies itself to persons using canal property for less than a week in one place.
By Michael Smith.
Ten days ago, on 11 May, I asked the Department of the Taoiseach to explain the legality of its removal of tents on the canal.
I suggested its statement (about previous similar removals) that it was a criminal offence “in principle” to pitch a tent on public or private land was misleading as the specific Canals Act expressly disapplies itself to “persons using canal property for a period of not more than one week at the same place”.
It is an established legal principle that a specific law or byelaw prevails over a more general law or byelaw.
It is also the case that trespass is not in principle a criminal offence.
As government again removes asylum-seekers and their tents, the notion of ‘a criminal offence in principle’ remains unknown to law and the Canal Act expressly disapplies itself to persons using canal property for less than a week in one place.
The Government Press Office reply, issued fully ten days later, is disingenuous and waffly. This is reprehensible in the case of some of the most vulnerable people in the country.
My question to the Department of the Taoiseach
I note your statement by way of Q and A yesterday https://www.gov.ie/en/press-release/b147d-questions-and-answers-on-mount-street/#:~:text=However%2C%20it%20is%20a%20criminal,refusal%20to%20remove%20the%20tent.:
‘Can International Protection Applicants be prosecuted if they did not take up the offer of IPAS accommodation in Crooksling or Citywest?
No. However, it is a criminal offence, in principle, for a person to pitch a tent on public land, or on private land without consent. Depending on the circumstances, for example, the person may be moved on, requested to remove their tent or the tent may be seized if there is a refusal to remove the tent. Each case would be considered on their own set of facts on the question of a prosecution’.
In fact the following section of bye-laws under the Canals Act is relevant and it expressly, in Section (3), the only section dealing with persons — like the asylum-seekers — “using canal property for a period of not more than one week at the same place” exempts pitching of a tent for less than a week https://www.irishstatutebook.ie/eli/1988/si/247/made/en/print#article30:
’30. (1) No person shall place or use any structure, tent, caravan or vehicle as a dwelling on canal property, except with the written permission of the Commissioners.
(2) Any such structure, tent, caravan or vehicle placed or used on canal property in contravention of this Bye-law may be removed and stored by, or on the authority of, the Commissioners.
(3) This Bye-law shall not apply to persons using canal property for a period of not more than one week at the same place’.
In view of the apparent illegality, described above, of the removal of vulnerable people and the tents in which they have been compelled to seek refuge along the Grand Canal, can your office please state precisely what Act or Bye-law justified the actions affecting asylum-seekers perpetrated by government agencies on 9 May described in the following article https://www.irishtimes.com/crime-law/2024/05/09/asylum-seekers-warned-by-government-of-possible-prosecutions-for-failure-to-move/ and mandated by a government information leaflet?”.
The Government Press Office reply, issued fully ten days later, is disingenuous and waffly. This is reprehensible in the case of some of the most vulnerable people in the country.
The government’s reply
The Government is working intensively to source additional accommodation, with the focus currently on sourcing State land where tented accommodation can be provided, or vacant State-owned buildings.
That work is ongoing within departments and agencies. Once viable sites are identified they will be operationalised as soon as possible.
There remains a serious concern for the health and safety of people staying in tents by the canal, and about the impact of the lack of sanitation facilities.
Whilst temporary barriers have been erected as a mitigation measure, access to the towpath and footpath adjacent to the canal is unimpeded.
It is a criminal offence, in principle, for a person to pitch a tent on public land, or on private land without consent under the Roads Act 1993 and the Criminal Justice (Public Order) Act 1994, taking into account the specific set of facts and circumstances that may be engaged.
All departments and agencies will continue to work in the best interests of all concerned.
It is a criminal offence, in principle, for a person to pitch a tent on public land, or on private land without consent under the Roads Act 1993 and the Criminal Justice (Public Order) Act 1994, taking into account the specific set of facts and circumstances that may be engaged.
