Vol. 482 No. 3
I move amendment No. 1:
In page 3, subsection (2), line 25, before "committed" to insert "alleged to have been".
I am concerned that the inaccuracy of the wording in this section will mean we will have to further amend this legislation in a few weeks or months. There is possible ambiguity in the timing of alleged offences. I suggest we insert "alleged to have been" in this section so that any potential loophole is closed off.
I thank Deputy Shortall for tabling this amendment. While I appreciate her intention, it must be opposed. I consulted the draftsman who informed me that it would not be in accordance with normal drafting practice to insert the words "alleged to have been" before the word "committed" in line 25. It would have been the same thing, for example, if the Deputy had suggested inserting the word "alleged" before the word "offence" in line 25.
Legislation commonly mentions proceedings in respect of an offence, not proceedings in respect of an alleged offence. For example, section 21 of the Interpretation Act, 1937, which was closely following in framing section 1 of this Bill, states that "any legal proceedings . in respect of any . offence against .. a statute so repealed may be instituted .". It does not state any alleged offence or offences alleged to be against the statute. I am satisfied the amendment should not be accepted as it would not be in accordance with good drafting practice.
I accept the Minister's point that there is no requirement to include the word "alleged" before the word "offence". However, we should insert "alleged to have been" before the word "committed" because it relates to the timing of the alleged offence. The Minister said it would not be normal to do this. However, it is not normal to introduce emergency legislation. This section could be open to challenge in that there could be a requirement to prove the offence was committed prior to the abolishment of common law offences. I am worried that we could be back here in a few months' time further amending this legislation. There is the potential to exploit the ambiguity in this section by challenging the legislation. I suggest inserting this phrase to ensure we are not exposed to such a challenge.
I understand the Minister must take expert advice from draftspeople who have a great deal of experience in drafting Bills. However, they are the same people who have caused us to have to rush through this Bill to put something right. I am unhappy that normal drafting practice has been given as the reason for refusing to accept this amendment. We must examine whether that is a sufficient explanation. Will the Minister explain further his problems with the amendment?
I have difficulties with this Bill which were articulated by Deputy Joe Higgins earlier. It is being rushed through unnecessarily without giving all Deputies an opportunity to debate it. There are more than three parties in the House and it is important to give space to different views. Rushing Bills through the House is likely to create further problems. I respect Deputy Shortall's attempts to improve the Bill.
The Minister alluded to the constitutional aspect of the Bill. I have concerns about whether the Bill is acceptable under the terms of the Constitution. Will the Minister comment on that in more detail? There is a retrospective approach in the Bill and there are dangers in that regard.
I understand the Minister has genuine concerns about delaying this matter. However, rushing this Bill, which none of us saw until midday today, without any chance for reflection or deliberation is not how this House should conduct its business. The Minister needs to clarify his position on this amendment, which I presume has been put forward in good faith, and the constitutional aspects of the Bill.
(Mayo): I do not want to be combative about the Bill, which I somewhat reluctantly support. As I said, it would have been better to test it in the courts if that process could have been expedited, notwithstanding the fact there are further cases on the courts' conveyor belt which could give rise to difficulties next week or the week after.
It is not a case of who did or said what. This Bill was enacted by the previous Government. It went through the normal legislative process of publication and Second Stage, was thoroughly vetted on Committee and Report Stages, went through Final Stage, was passed by the Seanad and was signed by the President without demur. Few pieces of legislation have received such public acclaim as it did, on the basis that it mainly set out to tackle the new and high profile crime of syringe attacks. The order was signed by the present Minister on 19 August 1997. That is not the point.
The net point in relation to this amendment is that if we are talking about the need for certainty, which the Minister heavily emphasised as the reason for rushing the Bill through the House, while nothing might be gained from inserting the word "alleged", it is certain that nothing would be lost by so doing. Why is the Minister being so dogged and intransigent in his refusal to accept the amendment?
If inserting the word "alleged" will in no way dilute the intent or content of the Bill, the Minister would be well advised to accept this reasonable amendment which does not in any way lessen the gravity of an offence. I cannot see why the Minister would not accept the amendment in the spirit in which it is offered. There does not seem to be very strong legal advice against accepting it.
I urge the Minister to accept the amendment because by so doing he would not in any way mitigate the wording of the Bill and would head off further possible challenges. As Deputy McManus said, the people who are advising on the Bill are presumably those who advised on the soundness of the original legislation. Why can the Minister not come down on the side of caution and accept the amendment?
(Dublin West): I wish to object again to the Government's proposal to enact this legislation in an emergency fashion. The minimum right which any elected Member of the Dáil should have is the democratic right to examine legislative proposals which will affect people's lives, whether it is the lives and rights of victims of crime or those who are accused of crimes but are presumed to be innocent until found guilty. Deputies have the right to be briefed on the legal aspects of a Bill by legal experts so that a proper debate can take place and any dangers can be rooted out.
It would have cost the Government nothing to give at least two weeks for a proper debate on this issue. If that might affect any cases before the courts they could easily be adjourned for some weeks. The Government should have learned from the fiasco of the referendum on Cabinet confidentiality——
This is a very limited debate in which only 25 minutes have been allocated for Committee and Report Stages. I ask the Deputy to address the Committee Stage.
(Dublin West): The Government is making it up as it goes along. Zero tolerance was clearly a fig leaf adopted by the Minister's party before the election to cover its lack of policy and solutions and has been completely abandoned. Taking action on the thousands of heroin addicts in my and other constituencies who cannot get places on programmes would do far more to reduce crime than——
I do not wish to interrupt the Deputy but this is a very limited debate.
(Dublin West): Will the Minister elaborate on section 1(4) which I find alarming? It refers to the constitutional rights which might be affected by this proposed legalisation. Which constitutional rights does the Minister envisage might be infringed by these proposals? What other rights might be infringed? Has this been thought out? Without having had the opportunity to properly debate and discuss this Bill I intend to vote against it in protest.
An offence is either committed or not. If an offence was not committed this legislation will not affect that; if an offence was committed and if the courts rule that the offences abolished by the 1997 Act cannot be proceeded with if they occurred before the coming into law of that Act, such an offence will be caught by this Bill. It would be irrelevant to insert the words "alleged to have been" before the word "committed" because if the offence was not committed it is not affected by this legislation.
Indictments usually charge the offence or offences as having been committed on a certain date or dates. If the offence was not committed before the appropriate date the section does not apply to it. In those circumstances to insert the words "alleged to have been committed" would be superfluous. There should be no difficulty in establishing whether or not an offence was or was not committed before a certain date. I hope this helps to clarify the situation regarding whether or not there is a need to have the words "alleged to have been committed" included.
Turning to the criticisms by Deputies McManus and Joe Higgins regarding the Bill being rushed through and the constitutionality of the legislation, section 1(4) is inserted to avoid any implication that the legislation might be an unconstitutional interference in ongoing proceedings. Subsection (4) provides that if section 1 would, but for subsection (4) as inserted, conflict with the constitutional rights of any person, the section will be subject to such limitations as are necessary to ensure that it does not so conflict but shall otherwise be of full force or effect. The subsection is inserted to ensure that an individual's constitutional rights are maintained and that there would be no misunderstanding or implication to the effect that the legislation might be an unconstitutional interference with ongoing proceedings.
Subsection (3) applies the section to common law offences abolished before the enactment of the Bill. It therefore applies to the common law offences abolished by section 28 of the Non-Fatal Offences Against the Person Act, 1997. The Bill cannot be criticised on the basis of its retrospectivity. It does not make acts or offences criminal which were not criminal at the time they were committed. That would be in breach of Article 15.5. of the Constitution. The actions to which this legislation relates were criminal acts at the time they were committed. The Bill merely enables prosecutions to be mounted in relation to purely criminal actions if that becomes necessary in the light of subsequent court decisions. For example, actions committed at this point in time are still criminal having regard to the provisions of the 1997 Act which put those offences on a statutory footing. I have no doubt that this course is the correct one and I am confident it will stand up anywhere. I am satisfied with regard to the constitutionality of the legislation in so far as anybody can be satisfied regarding the constitutionality of any legislation, given that interpretation is ultimately a matter for the Supreme Court.
I disagree with the criticism that the Bill is being rushed through unnecessarily. If it were the case that, in the coming weeks and months, offences were thrown out by the courts pending, for example, the decision of the High Court in the Mullins case, Deputies on the Opposition benches would rightly round on me on the basis that I saw the risk and took the gamble. I have seen the risk and am not prepared to take the gamble. I wish to ensure that the criminal law is tightened in this important area and that any possible loophole which may exist is closed off.
It would be more prudent and perhaps easier if I had the luxury to await the judgment of the High Court and any appeal in the Mullins case. However, I have a duty to citizens to ensure that if offences were committed at common law prior to the coming into force of this Act and which were abolished, those who perpetrated them or were responsible for them will face the courts and, if convicted, be punished in accordance with the law.
This legislation should not be opposed by any Deputy. I agree that it is desirable and necessary where possible to ensure that Deputies are circulated with legislation in such a way that they have the opportunity to consider it and make worthwhile contributions. However, unfortunately I am not in a position to do that in this instance. It is not the first time this has happened, though I accept it is unusual and even undesirable that legislation should be passed in this fashion.
Alone of the Members in the House, I was present when the Non-Fatal Offences Against the Person Act, 1997, was rushed through because a general election was pending and the then Government wanted the legislation on the Statute Book. I could do little about that and I accept that I and the other Opposition spokespersons did not have the opportunity we would have liked to debate the legislation. I understand why Deputies consider it undesirable that legislation should be rushed through. However, this legislation is different. It is designed to close off a possible loophole and to ensure that there will be certainty in the criminal law regarding the offences concerned.
There is a question as to whether section 1(4) conflicts with a person's constitutional rights. Should that be the case, limitations will be applied. Will the Minister confirm that this is an unusual section to insert in a Bill? This seems to be either self evident or else an indication that he has concerns that there is a conflict with a person's constitutional rights. If that is the case perhaps he would elaborate on where it might arise. Would it mean the Bill would not have the desired effect? What are the limitations?
I am not satisfied there is a legal requirement to provide proof on the timing of the commission of an offence before proceedings are instituted. It is regrettable the Minister has not seen fit to accept the amendment.
That is not the reason I advanced for not accepting the amendment. I have dealt with the matter in some detail and there is nothing to gain by going further with it. I appreciate the Deputy's motivation in tabling the amendment, which is well-intentioned, but I must stand by the argument I made which is the correct one.
On the insertion of section 1 (4) and the constitutionality of the Bill, the Mullins case is awaiting judicial review in the High Court and there is also a pending case of habeas corpus. It will be for the courts to decide the extent to which this legislation will have a bearing on these cases. While I would not wish to offer an opinion, the courts may hold that, because proceedings were pending, this legislation cannot affect them. If the courts decide, on a proper interpretation of section 28 of the 1997 Non-Fatal Offences Against the Person Act, that it does not prevent prosecutions continuing in relation to the common law offences abolished that will be the end of the matter and this legislation was not required in the first instance. If the courts decide the other way this legislation will be in place and there will be certainty in the law.
In relation to the cases concerned, section 1 (4) seeks to demonstrate that the Bill does not seek to interfere with the constitutional rights of any person. It reads:
If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.
I sincerely hope this helps to resolve the dilemma in which Deputy McManus finds herself.
I am required to put the following question in accordance with the order of the Dáil of this day: "That sections 1 and 2 and the Title are hereby agreed to in Committee; that the Bill is accordingly reported to the House without amendment; that Fourth Stage is hereby completed, and that the Bill is hereby passed".
