I thank Members who contributed to the debate, many of whom made kind remarks about the Bill.
The Minister last week and the Minister of State tonight criticised it on a number of grounds, one of which was the fact that it excluded a reference to an offence under section 21 of the Misuse of Drugs Act, 1977. The Minister for Justice challenged me to explain how this Bill would pass the constitutionality test. She referred, in particular, to the right of access to a solicitor and stated that this was not referred to in the Bill. This was a deliberate omission based on sound legal argument and reason.
At the time of the passing of the Criminal Justice Act, 1984 the courts had not clarified the exact status of a right of access to a solicitor. At that time it was unclear whether it was a legal or a constitutional right. It does not give me pleasure to say that the Minister's comments demonstrate that she does not understand the difference between a legal and a constitutional right or the jurisprudential development of the right of access to a solicitor which was ambiguous for a long time. That ambiguity was resolved by the Supreme Court in the case of the Director of Public Prosecutions v. Healy, reported at page 73 of the 1992 Irish Reports, where the right of access to a solicitor was held to be a constitutional tright, not a legal right or a right conferred by statute. As it is a constitutional right it need not be included as a statutory right in this or any other legislation. To do so would be meaningless and superfluous to requirements.
The Minister's criticism demonstrates a lamentable lack of understanding of the criminal law. She might as well have criticised the Bill for failing to accord a detained person the right to bodily integrity or life, which is also absent from the Bill. That is a constitutional right and does not depend on any statute for legitimacy; it derives from the Constitution as interpreted by the Supreme Court. The Minister's suggestion that to exclude a constitutional right from a Bill would increase the risk of it being found unconstitutional is nonsense, even from the perspective of the most biased of observers. That suggestion does not have a legal basis and was made to the Minister by somebody who has as little understanding as she of the criminal law.
The Minister also demonstrated a comprehensive lack of knowledge of the case law that has arisen from the provisions of section 4 (5) of the Criminal Justice Act, 1984 which requires that a person be charged where there is enough evidence to do so. If the Minister had examined the law in detail she would know that decisions of the Court of Criminal Appeal in The People v. O'Toole and Others and in The People v. Hannon and Reddan permitted detention following sufficient evidence to charge, if it is necessary for a proper investigation of the offence for which the person is arrested. All detention under the Fianna Fáil Bill would be to enable proper investigation of the offence for which the person is arrested. To detain for any other reason would be unlawful and unconstitutional and would add nothing to the Bill.
I reserve my strongest criticism of the Minister's contribution for what she described as this Bill's "most serious flaw", the fact that any application to detain a person beyond 48 hours would be made ex parte. She objected to this and stated it was illegal and unconstitutional. From my perspective and from the perspective of anybody with a knowledge or interest in this area, it is obvious that the Minister envisages that for a period of detention to be lawful it must happen subsequent to the arrested person being afforded a right to be heard at a hearing. In other words, before a person could be detained there would have to be a hearing. If that is the criterion, why is the member in charge of a Garda station permitted to detain a person under the provisions of section 4 of the Criminal Justice Act, 1994?
Why is a superintendent entitled to extend that detention ex parte? Why is a member of the Garda entitled to arrest and detain a person under section 30 of the Offences Against the State Act, 1939 without giving the person the right to be heard? Why is a chief superintendent entitled to extend that period on an ex parte basis? The Minister for Justice, in asking questions of me in relation to ex parte detention, raised more questions about herself than about my Bill.
One of the reasons the Minister gave for this power of detention being necessary was that there is often an international dimension in these cases. That is true and one of the main reasons for the proposed detention is to ensure that the gardaí have time to ascertain the evidence available internationally in regard to a suspected drug trafficker. I can understand how gardaí could arrest and detain a person as part of an ongoing operation, but the Minister suggested that after a period of ex parte detention, which can be extended to 48 hours, the gardaí would have to go to court and divulge before the world all the information they have on the suspected drug trafficker. This is one of the most nonsensical suggestions ever made in this House. On what legal basis did the Minister make such a suggestion? She must be unaware that on every day of the week gardaí, in the proper exercise of their duty, obtain orders at ex parte hearings which affect the rights of others. Hundreds of search warrants are issued each year at ex parte hearings. Thousands of arrest warrants are obtained each year at ex parte hearings. What legal basis does the Minister have for determining that detention for up to 48 hours on an ex parte basis is lawful but that detention beyond that time on an ex parte basis is unconstitutional? That does not make any sense.
The criticism the Minister made of my Bill shows, unfortunately, how much she is at sea in relation to this problem. Has she contemplated the consequences of the type of hearing she suggests as being necessary? The detained person would have to be given adequate notice of the hearing and told of the intended Garda evidence. We are talking about a suspected drug trafficker peddling in death. He or she would have to be given an opportunity to consider the evidence and prepare a defence. He or she could call evidence and be legally represented. For cases with an international dimension, the Minister proposes disclosing the entirety of Garda information in relation to the alleged drug trafficker in open court. The Minister might as well have gone the whole way and require the Garda to publish the up-to-date state of confidential information in Iris Oifigiúil, the national newspapers or on the electronic media. That is nonsensical and nobody can deny that.
I repeat my question to the Minister: what magic occurs after 48 hours that requires ex parte detention to become detention on foot of a contested hearing? If the Minister believes her objection to be valid, how does she contend that the existing detention provisions are valid? The answer is that these are spurious objections raised in an attempt to justify the Minister's failure to introduce this legislation to date.
The Minister, in as transparent an attempt at obfuscation as I have ever seen, suggests that a court would be unable to ascertain what a substantial offence is and that that is a valid reason for criticising the Bill. To my surprise, the Minister of State joined in that criticism tonight. Courts are presided over by experienced lawyers capable of understanding ordinary language. The canons of construction of statutes require words to be given their ordinary meaning. Can the Minister understand the concept of a substantial offence and, if so, and I am not suggesting she cannot, it would be fair for her to presume that the Judiciary can understand it as well. If she cannot understand it, she should abandon all hope of understanding criminal law and managing its reform.
In relation to the power to issue search warrants contained in the Bill, the Minister has again misunderstood the fundamental import of the section. The provisions of section 26 of the Misuse of Drugs Act, 1977 are law; they do not need to be re-enacted in this Bill. They form part of what the Minister described in her contribution as, "the huge corpus of criminal law".
I will avoid using the word "criticism" in relation to the Minister's comments but as she frankly admits she does not understand the effect of the section in relation to section 4, it is strong testimony to the fact that she has little grasp of what she is dealing with. Customs officers are persons in authority. They currently do not have any statutory power to question; if they do so, they must be governed by the judge's rules as are other figures in authority such as agricultural officers. This section gives them the necessary powers and sets the conditions so that what is said may be admissible in evidence. It is a necessary power and if the Minister examines the most fundamental aspects of the law of evidence, she will see that this section was necessary too.
In relation to Part II of the Bill, the Minister mentioned unspecified concerns about the way in which it was drafted. She seeks to justify the continued presence of this unconscionable provision of the 1977 Act by virtue of the fact that it is desirable that a decision be made at an early stage as to whether there is a case to answer. Has the Minister any idea as to the number of cases thrown out at preliminary examination stage? If she did, she would not have made this rash, irrational and ill-considered statement. This area of law is in need of reform and the Minister has no idea how it should be tackled.
The final failure by the Minister to understand the extent and scale of public dissatisfaction is the speed with which she pushes the revolving door. I am not surprised that once a measure intended to introduce transparency into the prison system is brought forward, the Minister voices her opposition. The legislation to be published tomorrow had to be dragged out of the Minister for Justice in the same way as reform of our bail laws will have to be dragged out of her.
Everybody will agree that no domestic cause in modern Ireland is deserving of greater support and encouragement than the fight against crime. No Government will have a better opportunity to confront crime and plan the future of its criminal justice strategy than this Government, confronted as it is with the opportunity of accepting one of the most enlightened measures ever to come before this House. I acknowledge the Government will not vote down the Fianna Fáil Bill but I urge the Minister for Justice and the Government not to bury it for eternity either beneath their own Bill or in some committee of the House but to have it discussed immediately by the Select Committee on Legislation and Security with a view to enactment into law.
In the light of yet another horrific murder last night, the time has come for the message to go out from this House that we are all united in bringing acceptable levels of criminality in our society to an end. We on this side of the House are open to all and any reasonable amendments from the Government but neither we nor the Irish people are prepared to accept indifference, indolence or incoherence which would be tantamount to political opportunism from this or any other Administration. The Government, through this Bill, has the unique opportunity of sending out a clear message to hardened criminals that the net is closing in and that it will not in future reject appropriate tough measures, irrespective of their source be it political or otherwise.
Recently we have witnessed horrific killings and other vicious criminal offences committed by unscrupulous and brutal criminals. For these and many other reasons, people are entitled to be satisfied that this House has grasped the fundamental fact that a coherent criminal justice strategy is a necessity and not a luxury. Any Government which rejects that glaring truth will do so at its peril. The matter has become far too serious for even a hint of political opportunism. The rainbow coalition Government must now answer the hard question: is it prepared to commence a unified fight against vicious, cruel and depraved criminals?
The Minister's proposals to be published tomorrow are contained in this Bill. Part I gives legal effect to the three statutory amendments of the criminal law which the Minister announced in her initiative last July. We improve upon those proposals in Part II of the Bill by providing for a fast track approach to certain drug offences by eliminating the preliminary examination phase. Furthermore, in Part III of the Bill we amend the law in relation to temporary release by prohibiting the release of prisoners convicted of certain drug offences and provide that certain information regarding prisoners on temporary release be published in Iris Oifigiúil.
We have been constructive in Opposition. When the Minister announced a referendum on bail we supported it when others, far closer to her, were less than forthcoming. When the Minister said she would proceed with Fianna Fáil's plans to build new prisons at Castlerea and Mountjoy, we endorsed her proposal but her partners in Government ignored her. When the Minister proposed tough legislation to help put away drug traffickers, we were the first to support her. Where we saw a need to voice the concerns of citizens, we did so. Where we saw deficiencies, we moved to rectify them. Where we saw a need to criticise in order to force the Government's hand, we were obliged to do so.
The vast majority of our legislative and practical proposals have been ignored by the rainbow coalition Government. Even this crucial legislation has been greeted with vague and begrudging interest. Such a response is no longer sufficient. Political expediency must be replaced by magnanimity. This is the very least the public expect and to which they are entitled.