The Bill to make trespass a criminal offence is so severe that its progress is being closely monitored by groups across Europe. Caroline O'Doherty reports
The Government says it is "an effective mechanism for dealing with large-scale unauthorised encampments". Traveller organisations say it amounts to "using a cannon to kill a mosquito".
This evening the President, Mrs McAleese, convenes a meeting of the Council of State to see what they think of Section 24 of the Housing (Miscellaneous Provisions) Bill (No. 2) 2001.
The section, for the first time, makes trespassing on land a criminal offence. Travellers are not mentioned in the section, as to do so would breach the equality legislation so proudly introduced by the same Government.
But after the problems last summer when a convoy of Travellers moved onto parkland by the banks of the Dodder in the leafy Dublin suburb of Rathfarnham, no one doubts who it targets.
It is not just residents of Rathfarnham who would welcome the change. As the law stands, any landowner who finds an unwelcome Traveller encampment on their property must take civil action to secure an order to quit.
It can be a costly and lengthy process and, particularly where public land is involved, a difficult one as the local authority must show that it has fulfilled its duties to provide suitable alternative accommodation.
The new section would allow a garda to arrest anyone or any group found trespassing, on the spot and without a warrant and regardless of circumstances, and to impound their vehicles. An offender can be jailed for a month and fined €3,000.
In Britain there was similar debate when Section 61 of their Criminal Justice and Public Order Act was passed in 1994.
It too criminalised trespass, creating penalties of six months in prison and a fine of £2,500 sterling, but it applies only in cases where two or more people are involved and where they either have six or more vehicles with them or have behaved in a threatening or abusive manner.
It also requires that the landowner take reasonable steps to remove them first and, while it allows for arrest without warrant, it allows suspects present a "reasonable excuse" in their defence.
The Irish Traveller Movement (ITM) suspects Section 61 may have been the model for our own Section 24 - but without the redeeming features. Along with other Traveller support groups it sought legal opinion on Section 24 and has sent it to the President.
"One of the main points is that the law is disproportionate to the objective it is trying to achieve," says Ms Gráinne O'Toole, ITM national accommodation worker.
"It is supposed to prevent large- scale encampments but it may be used to hit the most vulnerable people, the 1,200 families on the roadside."
The same legal opinion finds the section a breach of equality legislation, in inhibiting nomadism, which is a direct attack on Traveller culture. If it discourages the voluntary nomadic way of life, it also causes enforced movements which disrupt a child's education, while the confiscation powers threaten the family home - both protected in the Constitution.
The ITM says it will go to Europe to oppose Section 24 if it passes into law. If it comes to that, the European Roma Rights Centre in Budapest, Hungary, which acts as a watchdog for gypsy cultures, including Irish Travellers, will take a strong interest.
Trespass law varies from country to country but the relative severity of Section 24 means its progress is closely monitored.
Even in Romania, with one of the largest Roma populations and where, arguably, the worst discrimination exists, trespass remains a matter for civil law.
"I handle cases for Romania and Italy about asylum, human rights, education, many issues," says staff attorney Ms Ioanu Banu, "but trespass does not cause much argument. The civil system seems to work quite well."
Staff at the Traveller Law Research Unit at Cardiff University in Wales are trying to repeal Britain's Section 61 but they accept that civil law is not always effective.
After four years consulting with Traveller organisations, police, local authorities and health and education bodies, they published the Traveller Law Reform Bill in January and are now trying to have it put as a private members' Bill.
The Bill seeks to apply the existing law only to groups of 12 or more. Mr Martin Collins, assistant director of Pavee Point, wants legislation here to do the same, "so let's call their bluff and insist they state in the law that it only applies to groups of 12 or more."
The Council of State cannot make such suggestions. It can only consider the law in terms of whether it is compatible with the Constitution. Then it will be up to the President to decide whether to sign the Bill into law, or refer it to the Supreme Court to test its constitutionality.