Dáil Éireann debate -
Tuesday, 20 Jun 2000

Vol. 521 No. 4

Offences against the State (Amendment) Act, 1998: Motion.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I move:

That Dáil Éireann resolves that sections 2 to 12 and 14 and 17 of the Offences against the State (Amendment) Act, 1998 (No. 39 of 1998), shall continue in operation for the period of twelve months beginning on the 30th day of June, 2000.

The resolution before the House today seeks approval for the continuation in operation of those sections of the Offences against the State (Amendment) Act, 1998, which would cease to be in operation on 30 June 2000 unless they are continued for a further period.

Section 18 of the Act, as amended by section 37 of the Criminal Justice Act, 1999, provides that sections 2 to 12 and 14 and 17 will cease to operate on and from 30 June 2000 unless a resolution is passed by each House of the Oireachtas authorising the sections to continue to operate for such period not exceeding 12 months as may be specified in the resolution.

Members of the House will appreciate that although this legislation has been in force for a relatively short period, the Act itself, as amended by section 37 of the Criminal Justice Act, 1999, recognised the importance of revisiting the provisions at an early date. The intention was to afford Members of the House an opportunity to examine and debate the issues involved which go to the very core of our duty to protect fundamental rights and our responsibility as Members of this House to protect the security of the State.

The purpose of the Offences against the State (Amendment) Act, 1998, which was enacted in the aftermath of the Omagh bomb, was to provide the additional protections and powers needed to tackle the threat to the security of the State and the integrity of the peace process presented by certain malevolent dissident groups, by making amendments to the Offences against the State Acts, 1939 to 1972. Principally these amendments made changes in the rules of evidence in relation to the offence of membership of an unlawful organisation and, more generally, other offences under the Offences against the State Acts and scheduled offences. The Act also created new substantive offences and extended the maximum period of detention permitted under section 30 of the 1939 Act. It might be useful if I set out in some detail those legislative provisions – provisions the Government wishes to see continued.

The provisions of sections 2 to 12 and 14 and 17 of the Act can be divided into four categories with four essential purposes. First, the Act made changes to the rules of evidence that previously applied to both the offence of membership of an unlawful organisation and, more generally, for the purpose of other offences under the Offences against the State Acts and scheduled offences under those Acts. Second, the Act created certain new substantive offences of particular relevance to the activities of unlawful organisations and those who provide support for them. Third, the Act gave additional power to the courts in respect of those who provide support to the activities of unlawful organisations or engage in offences on their behalf; and, fourth, the Act extended the maximum period of detention permitted under section 30 of the Offences against the State Act.

The first category of sections under discussion, sections 2 to 5 of the Act, concern changes in rules of evidence. Section 2 has specific reference to the offence of membership of an unlawful organisation and is one of the key provisions of the Act. Its effect is to provide that where, in any proceedings against a person in relation to that charge, evidence is given that the accused failed to answer or gave false or misleading answers to any question material to the investigation of the offence while being questioned in relation to that offence, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. The section goes on to provide that references to any question material to the investigation of the offence include any references to any questions requesting the accused to give a full account of his or her movements, actions, activities or associations during any specified period. The section also provides that any such inference may be treated as, or as capable of, amounting to corroboration of any other evidence relating to the offence of membership of an unlawful organisation. The section contains two important safeguards: it provides that the section does not have effect unless the accused was told in ordinary language what the effect of a failure or a false or misleading answer might be, and provides that a person shall not be convicted solely on an inference drawn from a failure to answer a question or from the furnishing of a false or misleading reply.

Section 4, which amended section 3 of the Offences against the State (Amendment) Act, 1972, made a related and consequential change. The effect of the former section 3 of the 1972 Act, which provided that any statement or conduct by an accused implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, when pro ceeded against for membership, be evidence that he or she was then such a member, was also to define the expression "conduct" as including an omission by an accused person to deny published reports that he was a member of an unlawful organisation. The change made by section 4 was to align the definition of conduct with the expression used in section 2 of the Bill, that is, "conduct" was defined to include movements, actions, activities or associations in addition to the failure to deny such a report.

Section 3 of the Act, which made the second important change in the area of evidence, also has specific reference to the offence of membership of an unlawful organisation. It provided that in proceedings for such an offence the accused shall not, without leave of the court, call any other person to give evidence on his or her behalf unless notice has been given of his or her intention to do so. The procedures to be followed in this are set out in subsections (2) to (7), inclusive, of the section, which are closely modelled on the existing provisions of our criminal law on the requirement to give notice of an alibi on which an accused intends to rely for the purpose of his or her trial. The section also provides that the requirement on giving notice will not apply to a witness whose evidence is solely on the matter of sentence.

The third change in the area of evidence was made by section 5. This section is not restricted to the offence of membership but, provided that the offence carries a penalty of five years imprisonment or more, has application to any offence under the Offences against the State Acts, scheduled offences for the purpose of the 1939 Act and offences arising out of the same set of facts as an offence under the Acts or a scheduled offence. The effect of this section, which is closely based on a similar provision in the Criminal Justice (Drug Trafficking) Act, 1996, is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged but did not do so. This section, as with section 2, incorporated important safeguards whereby it will not have effect unless the accused was told in ordinary language what the effect of a failure to mention such a fact might be, and provides that a person shall not be convicted solely on an inference drawn from such a failure.

The second category of provision created five new substantive offences. These were provided for in sections 6 to 9, inclusive, and section 12 and include directing an unlawful organisation; possession of articles for purposes connected with certain offences; unlawful collection of information; withholding information and training persons in the making or use of firearms, etc.

Section 6 established the offence of directing, at any level of the organisation's structure, the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act, 1939. That offence attracts a penalty of up to life imprisonment.

Section 7 made it an offence to possess articles in circumstances giving rise to a reasonable opinion that the article is in his or her possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. The section also provided that it will be a defence to prove that the materials were not in the person's possession for such purposes. The offence attracts a penalty of a fine or imprisonment for up to ten years or both.

Section 8 made it an offence to collect, record or possess information, which is of such a nature that it is likely to be useful to members of an unlawful organisation in the commission of serious offences. A serious offence is defined for the purpose of the section as an offence punishable by imprisonment for a term of five years or more involving loss of human life, serious personal injury, false imprisonment or serious loss or damage, and includes an act or omission done or made outside the State which would be such an offence if done within the State. The section also provides that it will be a defence to prove that the information in question was not being collected and so on for the purpose of being used in the commission of a serious offence. The offence of unlawful collection of information attracts a penalty of a fine or imprisonment for up to ten years or both.

Section 9 made it an offence to withhold information which a person knows or believes might be of material assistance in preventing the commission by any other person of a serious offence or securing the apprehension, prosecution or conviction of any other person for such an offence and who fails without reasonable excuse to disclose such information to a member of the Garda Síochána. A serious offence has the same meaning as it has in section 8. This offence attracts a penalty of a fine or imprisonment for up to five years or both.

Section 12 made it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse. This offence attracts a penalty of a fine or imprisonment for up to ten years or both.

As I indicated during discussions in the Oireachtas leading to enactment of this Act, these offences have limited application, they are of a type that are likely to be committed by members of unlawful organisations arising from the activities of such groups. They are, therefore, targeted at specific activities, such as the collection of information which would be of assistance in planning terrorist attacks or the possession of material which can be used in making improvised explosive devices in which members or supporters of such groups can, and do, engage. Likewise, the offence of directing an unlawful organisation calls for evidence over and above that of membership of such an organisation. It was, nevertheless, considered prudent to provide for such an offence which is capable of attracting the higher penalty of life imprisonment, to deal with circumstances where such evidence may exist. The offence of withholding information has a wider potential application, but the message it is intended to underscore is that it is the duty of persons who have knowledge of planned offences involving death, serious injury or destruction, or information which would lead to the conviction of those responsible for such offences, to make that information available to the Garda.

An Ceann Comhairle

I draw the Minister's attention to the fact that under an Order of the House ten minutes are allocated for each contribution and he has exceeded the time allocated for his contribution.

Mr. O'Donoghue

With the permission of the House, I will finish my contribution within five minutes.

Mr. Howlin

Given that the 15 minutes allocated for the previous item was not taken and rather than encroach on the time of other Members who wish to contribute, we would like to hear the Minister's speech in full and that the time allocated for this matter be adjusted.

An Ceann Comhairle

It is the desire of the House to hear the Minister's speech in full?

Mr. Howlin

Yes, once it does not impact on the time of other Members who wish to contribute.

An Ceann Comhairle

The Order of the House provides that the overall time allocated for this discussion is one hour. I would like Members to be aware of that.

Mr. Howlin

Can the time allocated be adjusted?

An Ceann Comhairle

I will give as much latitude as possible bearing in mind the Order of the House.

Mr. O'Donoghue

Thank you, a Ceann Comhairle.

The effect of section 14 is to make these new offences scheduled offences for the purposes of Part V of the 1939 Act. That will mean persons suspected of committing such offences are liable to arrest under section 30 of the 1939 Act and can be charged in relation to such offences on the direction of the Director of Public Prosecutions.

Section 17 is the third category of provision and is intended to strengthen the powers of the courts in respect of those who provide support to the activities of unlawful organisations or engage in offences on their behalf. This section amended section 61 of the Criminal Justice Act, 1994, which deals with the forfeiture of property used for the purpose of committing or facilitating the commission of an offence or intended to be used for that purpose in circumstances where a person has been convicted of an offence. The effect of the change made by section 17 is to provide that, in the case of persons convicted of specified offences relating to the possession of firearms or explosives, a court will be required to order the forfeiture of such property unless it is satisfied that there would be a serious risk of injustice if it made such an order. The provisions of section 61 apply to real and personal property and, therefore, permit the seizure of lands on which arms are stored should such a course be warranted.

The fourth essential purpose of the Act is to extend the maximum period of detention permitted under section 30 of the Offences against the State Act – which was 48 hours – in two separate circumstances. First, section 10 will allow a District Court judge to authorise the detention of a person for a further period not exceeding 24 hours, on the application of an officer of the Garda Síochána not below the rank of superintendent, provided the District Court judge is satisfied that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his behalf. Second, section 11 allows a District Court judge to permit the re-arrest and detention of a person, in respect of an offence for which he or she was previously detained but released without charge, for a further period which again is not to exceed 24 hours, in circumstances where the District Court judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence and about which they wish to question the suspect.

The House will be aware that last Thursday, in accordance with the requirements of section 18(3) of the Act, I laid a report before this House on the operation of these sections during the period 3 September 1998 to 29 May 2000. That report contains information received from the Garda authorities and it shows that during the period covered by the report, no court proceedings utilising sections 2 to 9, inclusive, or section 12 of the Act have yet arisen. However, the Garda authorities have informed me that the provisions in question have been utilised where appropriate by the Garda during the investigation of offences. Members of the House will appreciate that many of the investigations at issue are, of their nature, ongoing.

I am informed that the number of occasions on which a period of detention was extended under section 10 was 29 and that each of those detentions was in respect of a single person. I am further informed that no persons in respect of whom extension orders were made have yet been charged or convicted of an offence, but a number of files have been submitted to the law officers for directions. Nobody has been re-arrested under section 11 of the Act, and no orders have yet been made utilising section 17 of the Act, although I understand it is possible the section will be invoked in relation to cases before the courts at present.

In considering these statistics, it is important to bear in mind that the provisions of the Act, which were acknowledged on all sides of the House to be strong, were intended to be used only in limited circumstances. It is not surprising, therefore, that the power of extended detention has been used in a relatively small number of cases, and that the trial related provisions have not yet been applied. This sparing use of the provisions of the Act does not indicate that they are no longer needed, but rather simply reflects the intention that exceptional measures should not be used routinely. The view of the Garda authorities, as outlined in the report I laid before the House, and in light of their current security threat assessment, is that these provisions should remain in force. I concur fully with that view.

In addition to immediate security concerns, which alone would justify the continuance in force of these provisions, there is another compelling reason for such a continuance in force. Deputies may recall that in 1998, on foot of a commitment made in the Good Friday Agreement, I appointed a committee under the chairmanship of former Supreme Court judge, Mr. Justice Anthony Hederman, to conduct a wide-ranging review of the Offences against the State Acts, 1939 to 1998. The review is currently under way and I expect that the committee will report towards the end of this year.

It clearly would make no sense to ask such a committee, under a distinguished chairman, to review the Offences against the State Acts, including the provisions we are discussing today, and then to allow the provisions to lapse before the committee reported its conclusions on these very provisions.

In light of the Garda assessment of the current threat to security that exists, notwithstanding the progress being made in implementing the peace process, and in order to allow enough time for the completion of the report by the committee that is reviewing the Offences against the State Acts, I ask the House to continue in force the relevant provisions for a further 12 months.

I commend the resolution to the House and thank the House for obliging me by allowing me to finish my statement.

Mr. Higgins

(Mayo): I have no problem with the Resolution before the House which is in accordance with section 18 of the Offences against the State (Amendment) Act, 1998. One is immediately forced to ask why the perpetrators of the Omagh atrocity are still at large. Why is it that the additional powers, willingly given by this House and the Seanad on 2 September 1998, have not been effective in bringing a single charge against anybody involved in the planning or execution of the Omagh bomb? Why is it that in spite of the extra powers given to the Garda and the courts the people responsible for Omagh are living out their lives at liberty in this State while the relatives of the 28 people killed continue to mourn the murdered members of their families and those mutilated and injured continue to suffer and bear the scars of the outrage? Why is it that the Real IRA still continue to ply its evil wares?

Does the Minister for Justice, Equality and Law Reform agree with the assessment of the Garda Commissioner that the likelihood is that those responsible for Omagh will never be caught? The Offences against the State (Amendment) Act, 1998, was the response to Omagh. In his presentation of the Bill to the House the Minister said in the Official Report, 2 September 1998, at vol. 494, col. 32:

Both the so-called Real IRA and the Continuity IRA must be left in no doubt about the consequences of any further vacillation on their part: they will continue to meet a determined response from the Government and the security forces and they will not be allowed to thwart the will of the people.

The reality is that they have continued to thwart the will of the people as expressed through this legislation. They are still in existence. They are still active and the members of the Real IRA, responsible for Omagh, are still at large.

The acid test of any legislation is its effectiveness and its degree of use. In his closing reply will the Minister tell the House why no court proceedings have been brought to date under sections 2, 3, 4, 5, 6, 7, 8, 9 or 12 of the Offences against the State (Amendment) Act, 1998? Why is it that no convictions have been obtained let alone charges brought? For example, the Bill created five new offences, directing an unlawful organisation, possession of article for purposes connected with certain offences, unlawful collection of information, withholding of information and training of persons in the use of firearms. Despite all the good intentions nobody has been charged let alone convicted of any or all of these offences.

After the Omagh bomb and before the 1998 legislation was introduced a senior Department of Justice, Equality and Law Reform source was quoted in the newspapers as saying, "The intelligence and evidence against these people is already there but there is no way convictions would have been secured under existing legislation". The same source is further quoted as saying, "There is enough actual evidence against those responsible for this heinous crime to make strong cases against them under this new legislation". The clear message, and we welcomed it at the time, was to entice this House and the Seanad to embrace the new legislation. The message was, "We know who those responsible are, we know where they are, we know how many there are and we must act quickly, therefore, give us the legislative tools and we will ensure that those responsible for Omagh are put behind bars". To date there nobody has been put behind bars.

If we know who they are, how many there are and where they are, why are they not behind bars? I recall that Deputy Flanagan during the debate on the 1998 Act put on the record the fact that the man who made the Omagh bomb was described in the media as a 32 year old unemployed electrician living in a well-known suburb of this city. Does the Garda believe this is the man responsible? If so, has he been arrested and questioned under this Act? Deputy Flanagan also referred to the fact that the security forces in Northern Ireland were prepared to provide the Garda authorities with detailed forensic reports on the Omagh bombing. Will the Minister indicate the level of co-operation there has been between the Garda and the RUC in the follow-up to this atrocity? For example, has there been an exchange of forensic data? Who exactly is in charge of the Garda investigation into the Omagh bombing? Has the investigation been scaled down in light of the Garda Commissioner's reported comments?

Legislation is only effective if it is applied effectively. We have seen in the past that legislation that was well-intentioned has not been applied effectively. For example, section 15 of the Criminal Justice Act, 1984, requires a person to give information in his possession as to how the person came into the possession of firearms and ammunition. Section 16 of the same Act creates an offence of withholding information about stolen property. Section 18 allows for inferences to be drawn from a person's refusal to account for the presence of his person or any mark or substance. Section 19 similarly allows for inferences to be drawn from a person's presence at a particular place where a crime is committed and where such a person fails or refuses to account for such presence. Legislation is only effective if it is applied effectively. The number of times that these particular sections of the 1984 Act have been applied is limited. Section 52 of the Offences against the State Act, 1939, which provides that a person detained in custody is advised to give an account of his movements, has largely fallen into disuse.

Despite the tough talk and all the aspirations for this legislation in the wake of Omagh the legislation has not delivered the goods. It has failed to deliver up the Omagh murderers. There is no room for complacency, as evidenced by the explosive device found at Hillsborough this morning. The ongoing sporadic attacks by republican paramilitaries should disabuse us of any notion of complacency. The ongoing paramilitary beatings and punishment shootings and the threat of an end to the ceasefire by loyalist paramilitaries are ominous reminders that the peace process is a fragile instrument.

One notes the contents of the Garda Síochána corporate strategy, particularly the acknowledgment that dissident republican terrorists remain a threat to the State with the "strong capability to attack chosen targets". We should never forget that. The Garda obviously believes that so long as those responsible for Omagh are still at large there is every possibility they will strike again and they must be brought to justice.

Mr. Howlin

The Offences against the State (Amendment) Act, 1998, was introduced in September 1998 in the aftermath of the horrific Omagh bomb that left so many dead, maimed and wounded and horribly scarred physically and mentally. The town of Omagh was devastated. The Omagh bomb, the worst single incident in more than 30 years of violence, was a particular shock given that it came with a few months of the signing of the Good Friday Agreement and its subsequent endorsement in referenda by an overwhelming majority of people, North and South, on this island.

The Omagh bomb was an act of indescribable evil. It was recognised at the time as not just designed to bring death and injury and destruction to the people of Omagh, but it was also a calculated attempt to destroy the entire peace process in Northern Ireland. The initial shock at the horrific carnage gave way to a sense of determination that those responsible should not be allowed to usurp the clearly expressed wish, hope and expectation of the Irish people for peace and for new political structures on this island that would make political violence, permanently, a thing of the past.

It was against this background that this House voted overwhelmingly to approve the Bill the Government brought forward, despite the strong reservations of many Members about the severe nature of many of its provisions. The Labour Party recognised the need for a strong and unequivocal response from the Oireachtas to the Omagh outrage and the need to demonstrate clearly that those responsible would be tracked down and not allowed to get away with that despicable act of mass murder. We also agreed to it because we were led to believe the law then operating would not be adequate to bring those responsible to justice and that new and further powers were required. Newspaper reports at the time quoted a senior Department of Justice, Equality and Law Reform spokesperson as saying, ".the intelligence and evidence against these people is already there.but there is no way convictions would have been secured under existing legislation.there is enough evidence against those responsible for this heinous crime to make strong cases against them under the new legislation".

The Oireachtas delivered the new powers sought by the Minister, the Government and the Garda Síochána, but they have failed to deliver the prosecutions and convictions we were given to believe would follow. As far as I am aware, only one prosecution has been taken arising from the Omagh investigation. It is still before the courts. Nobody has been charged with murder. Nobody has been charged with direct involvement in the bombing. The longer the time that passes, the less likely it is that anyone will be charged. The Garda Commissioner, Pat Byrne, admitted in an interview in March this year that it was now unlikely that those directly responsible would ever be brought to justice.

At the time the Bill was introduced, I called on the Minister to give an unequivocal commitment that the investigation into the Omagh bombing would continue until those responsible were brought to justice and that, if necessary, the Government should issue a directive to An Garda Síochána in that regard. The comments of the Garda Commissioner shocked the families of the dead. While they might have reflected a professional assessment of the situation, they gave the wrong message not only to those who were bereaved and wounded but also with regard to the absolute determination of the offices of the State to ensure that, regardless of how long it took and what resources were required, there would be a determined effort to bring the perpetrators to justice. I hope the Minister will reaffirm that however long it takes and whatever resources are required, those responsible will be held accountable and face justice.

It is disappointing that no convictions have been secured following the enactment of the legislation. What is even more surprising is that there has not been a single prosecution or conviction secured under this legislation which, we were told in September 1998, was so badly needed. There has not been a single prosecution under any of the sections, although the Minister told me in reply to a series of parliamentary questions last week that a number of files had been referred to the law officers. The only section of the Act which appears to have been used is the power to extend the existing period of detention of people in custody. A total of 29 people have had their period of detention extended but none of them was subsequently charged or convicted.

In my parliamentary questions last week I asked the Minister the number of proceedings where inferences were drawn as a result of a failure of an accused person to answer questions material to an investigation of an offence in respect of section 2 of the Act; the number of proceedings taken under section 4; the number of proceedings where inferences were drawn as a result of a failure of an accused person to mention particular facts in respect of section 5; the number of proceedings taken under section 6 relating to directing an unlawful organisation and the number of prosecutions secured; the number of proceedings taken under section 7 relating to possession of articles for purposes connected with certain offences and the number of convictions secured; the number of proceedings taken under section 8 relating to unlawful collection of information and the number of convictions secured; the number of proceedings taken under section 9 relating to the withholding of information and the number of convictions secured; the number of occasions on which a period of detention was extended under section 10; the number of persons in respect of whom extension orders were made and the number of persons in respect of whom extension orders resulted in a charge or conviction. In respect of section 11, I asked the number of occasions on which persons were re-arrested and in respect of section 12, I asked the number of proceedings taken relating to the training of persons in the making or use of firearms and explosives. Finally, I asked, in relation to section 17, the number of occasions on which property had been forfeited and the value of the property forfeited.

The Minister argues that these sections were vital and urgently needed to deal with the outrage of a new vicious and illegal organisation determined to undermine the peace process and to attack the State. The answer I received was that no proceedings were taken utilising sections 2, 4, 5, 6, 7, 8, 9 or 12 of the Act. The Minister must account for that. The failure to use the powers provided by the Oireachtas raises legitimate questions as to whether these powers were needed.

The Labour Party will not on this occasion oppose the motion to extend the operation of this Act for a further 12 months. It is aware there is still a threat to the peace process and to the State. We support the motion primarily because the review of the principal Act, the 1939 Offences Against the State Act, being undertaken by a committee chaired by the former Supreme Court Judge, Mr. Anthony Hederman, has not yet reported, but is expected to do so before the end of the year. However, I wish to put down a marker on behalf of the Labour Party. Its view today should not be taken as an indication that we believe this measure should become a permanent feature of the law.

The original Offences Against the State Act was introduced in 1939 to deal with the upsurge of IRA activity at that time and the outbreak of the Second World War. Sixty years later it is still on the Statute Book. A declaration of emergency was passed by the Oireachtas as a result of the Second World War—

An Ceann Comhairle

The Deputy should conclude now.

Mr. Howlin

If I could have the same minute of latitude accorded to the Minister, I will conclude.

An Ceann Comhairle

I have already given the Deputy that minute.

Mr. Howlin

Perhaps the Chair will allow me a couple of minutes to conclude. The declaration of emergency remained in effect, if not in use, until the rainbow Government moved a motion to have it lifted in 1995. The Special Criminal Court was re-introduced in 1972 and is still in use.

I look forward to the earliest possible publication of the Hederman report. It is surely now time to consider whether it is appropriate that an Act with such provisions as the Offences Against the State Act should be part of our permanent Statute Book. Clearly there are still threats to this State. We have looked for reform within the institutions of the British state and the Administration in Northern Ireland. We must apply that same rigour and scrutiny to our own affairs and I hope in the weeks and months to come we will be visiting the Offences Against the State Act and the other emergency provisions as peace is restored in this country.

It is now time for a fundamental review of all these provisions and I hope the Hederman report presented to this House will provide the opportunity to do so.

Mr. O'Malley

I disagree with Deputy Howlin's concluding sentiments. The House should remind itself that for many years, while there was no obvious or overt threat to the security of the State, the legislation which was passed in 1939 remained in force. There was no threat, for example, from the end of the Second World War until the late sixties, apart from one brief interlude of a couple of years in the mid to late fifties. However, the legislation remained in force as it had to and as it should, because every State must have legislation of this kind to guard its security and the security of its institutions and citizens. I do not think we should be apologetic about that because I know more about the need for it than many people in this House.

I reread this morning what I said in this House on 2 September 1998 when this Act was introduced. Given the passage of almost two years I have no reason to disagree with what I then said, that is, that if I found any fault with the 1998 Act it was that its provisions were temporary rather than permanent and that they would expire on 30 June 2000 unless renewed by resolution of this House. At that time when the Act was passed it was envisaged that the renewal could be for a period of five, ten or 15 years if this House saw fit. Since then – I only became aware of this fact when reading the various Acts this morning – the Criminal Justice Act was passed in 1999 which had the effect of limiting the renewal of the 1998 Offences Against the State Act to a 12 month period. It does not limit it to one 12 month period only, but it means that if we are to continue in force these provisions, this House and the Seanad will have to pass resolutions of this kind every 12 months. This is a pity for the reasons I stated in 1998.

I will go through the offences created by the 1998 Act. Section 6 relates to the offence of directing an unlawful organisation. That is now a serious offence. Why should it not be an offence if this House decided in a year's time not to renew it? If directing an unlawful organisation is now a serious matter and a serious breach of the criminal law, it should always be that. Section 7 provides an offence for the possession of articles for purposes connected with certain offences. That relates to things such as fertiliser and detonators for the manufacture of bombs. If that is now an offence, and it is very properly one, why should there be the possibility that in a year's time it would not be an offence? It should always be part of our law. Section 8 relates to the unlawful collection of information for the purpose of murdering people or kidnapping. That is now an offence. Why should it become not an offence and a lawful activity in 12 months' time in the absence of a resolution of this House? These should all be permanent parts of our legislation.

Section 9 creates the offence of withholding information. This was directed particularly at farmers who find the IRA/Sinn Féin coming in to manufacture bombs on their property or holding firing sessions to train young men how to aim and fire guns in order to kill people. It was declared an offence to withhold information regarding that kind of activity from the Garda. Why should it not be an offence in 12 months' time and why should it not be part of our permanent law? Section 10 extended the period of detention under section 30 if one got a warrant from a district justice. What is wrong with that? Why should that not be permanently the position? Section 11 allowed a district justice to issue a warrant for the rearrest of someone under section 30 if new evidence came to light. Why should he not issue such a warrant? Section 12 created the offence of training persons in the making or the use of firearms. Why should it in 12 months' time, in the absence of a resolution from this House, become lawful to train people in the making or use of firearms? Why should that not be a permanent offence in the law of this country?

Section 17 allows for forfeiture of property used for these subversive and terrorist purposes. Why should it not be open to a court to forfeit such property? In 12 months' time, this will not be the case if this House does not renew this order.

Deputy Howlin was wrong when he said the 1939 Act was introduced after the outbreak of the Second World War to take account of the circumstances and threat to national security that then arose. The Offences Against the State Bill, 1939, was introduced in 1938, was passed through both Houses and signed by the President on 14 June 1939. This was approximately three months before the outbreak of the Second World War. It was envisaged by the Oireachtas at that time, and rightly so, that legislation of this kind should be permanently on the Statute Book of any country which is intent on protecting itself and its citizens.

I notice from the speeches made in 1998 that people thought there was no threat to anyone in this country from any subversive or terrorist organisation, except from what was then called the Real IRA. We have since had the birth of the Continuity IRA and various other organisations. I am not satisfied that the organisation which began life as the Provisional IRA no longer constitutes a threat to this country. Like the Garda, I think we would be very foolish if we were to lower our guard in this respect and not retain the necessary powers to deal with subversion and terrorism of the kind we have seen, particularly over the last 30 years and intermittently. I fully support this motion. I regret, however, that it is only a 12 month motion and that we cannot permanently enact these provisions, all of which seem reasonable. They should be part of our permanent law.

I read the Minister's report on the Act and it is not an impressive document. It is very flimsy and does not indicate that a great deal has happened. I fear that we may be living in a time of appeasement in which we are expected to be politically correct. People are regarded as politically correct only if they are prepared to appease terrorism and threats to the State or the population on any part of this island. I am not prepared to appease it. There is a different atmosphere in this debate from the debate which took place after the Omagh bombing two years ago. I wish people still had the same anxiety they expressed in the immediate aftermath of Omagh and that greater use had been made of the provisions in these Acts.

That there have not been any successful prosecutions does not mean that the provisions in the Act were not useful in terms of investigation. The number of prosecutions, however, is very disappointing. It is hard to understand why, with the powers granted by the 1998 Act, it was not possible to mount successful prosecutions, particularly against those who held themselves out publicly as major figures in these terrorist organisations and who did not deny consistent media reports to that effect. That is one of the provisions in the 1998 Act.

I support the motion but I regret that it will be necessary for the House to pass another motion of this kind in 12 months time. If there is to be a review of the 1939, 1940, 1972 and 1998 Acts, they should be consolidated and any amendments necessary to bring them up to date made. All the provisions should then become and remain permanent. Any amendments made should not be by way of appeasement of terrorism but should reflect the advance in the situation since 1939.

Caoimhghín Ó Caoláin

I strongly refute the claims made by Deputies who link the Offences Against the State (Amendment) Act to the peace process. The peace process will not be protected by repressive legislation. Only political address and progress will lead to the necessary anchorage of the current absence of armed actions, an anchorage that my colleagues in Sinn Féin and I strive to achieve daily. Our task as politicians and legislators is to make politics work and to have the courage to repeal all repressive legislation.

I deplore the decision of the Government to renew the Offences Against the State (Amendment) Act, 1998. I opposed the Bill at the time of its introduction and I will continue to do so. This legislation has added significantly to the body of draconian legislation enacted since 1939. It represents a serious infringement of civil rights in this State.

The 1998 Bill was enacted in the heat of justified anger – anger which I shared – at the Omagh bombing in which 29 people died. It was presented at the time as essential to combat those responsible for the bombing. The impression was given – as it was with previous such Bills – that these were essentially emergency measures designed to deal with an immediate threat and without long-term consequences for the ordinary rights of citizens. The Act, however, placed on the Statute Book strong new powers for the Garda and the State and all experience shows that once such powers are given it is very difficult to withdraw them.

Section 2 attacks the right to silence and reinforces the provision for the conviction of a person for membership of an unlawful organisation on the basis of the opinion of a senior garda. The Minister is asking us today to renew the provision whereby the exercise of the right to silence can be used to corroborate the word of a garda. The exercise of the right to silence can mean that the court is empowered to draw inferences from failure to mention any fact later relied on by the defence. In effect the right to silence is removed.

This is perhaps the most draconian aspect of the Act. The Minister has signalled that he intends to further restrict the right to silence in the wider legal code. No doubt this Act will be the model for such new restrictions and once again we will have the widening of repressive legislation. Laws which were originally presented as an emergency response to politically motivated organisations are to be applied across the board.

On Second Stage of the Bill in 1998, I described Section 4 as one of the most drastic measures ever brought before the Dáil. It represents, in effect, guilt by association. A person's "association" with another or others can be used as evidence of membership of an illegal organisation.

We are being asked to renew the extension of the period of detention allowed under Section 30, to 72 hours. This power has been widely abused by the Garda and should be withdrawn.

The Act created the nebulous offence of "directing at any level" the activities of an unlawful organisation with life imprisonment as the penalty. It created the offence of possessing "any article" which would give rise to "reasonable suspicion" that the article is to be used for offences under the various Acts to do with explosives. These two provisions are clearly modelled on British legislation and are equally unacceptable, designed as they are to secure convictions on the flimsiest of evidence, or on no real evidence at all.

The British Government is due to introduce a new so-called "terrorism Bill" later this year, a Bill which will retain the powers of the notorious Prevention of Terrorism Act and add new ones. The decision by the Irish Government to renew this Act is therefore doubly damaging. It attacks civil rights in this State and it gives the British Government a perfect example to point to when it resists demands for the repeal of its own repressive legislation.

The Irish Government is asking us to renew an Act which runs contrary to the Good Friday Agreement, a key element of which is the commitment to human rights. I oppose this renewal and I call, as I did in 1998, for those parties which deem themselves the Opposition to do likewise.

Mr. Higgins

(Dublin West): The Offences against the State (Amendment) Act, 1998, was rushed through the Dáil in one day in the wake of the Omagh atrocity and there was no opportunity to hold a proper public debate on it. I strongly opposed the Act's introduction in 1998 and I am opposed to the renewal of certain sections of it today.

The Omagh bombing was an appalling atrocity. It was in the same league as the most notorious atrocities carried out on various occasions during the past 30 years by the British Army and republican and loyalist paramilitaries. Since 1998, there has not been an atrocity similar to that carried out at Omagh. Why is that the case? Is it due to the introduction in 1998 of this extremely oppressive legislation? The answer clearly is "no". It was the mass revulsion at and rejection of the brutal methods of the paramilitary organisations by the majority of people on this island which forced the members of the gang who carried out this atrocity to return to the hole from which they came and discouraged them from repeating their crime.

The mass opposition of the majority of ordinary people on this island has stayed the hands of other groups which might have contemplated the carrying out of atrocities similar to that which occurred at Omagh. These groups are answerable to no one and they do not speak for any significant proportion of the Irish people. It is the desire of the majority of people on this island that no actions of a paramilitary nature should be carried out in their name. That is what made the decisive difference in the aftermath of Omagh.

The introduction of the Offences against the State (Amendment) Act, 1998, was a cynical ploy by the Government which was designed to give the impression that it was taking significant measures to stop such atrocities and to capture those responsible for them. However, the facts indicate that this gesture was futile. No one from either the North or South has been prosecuted for or convicted of carrying out the bombing in Omagh, despite the fact that similar legislation was introduced in both Britain and Ireland.

The Act plays fast and loose with the fundamental civil rights of the Irish people. The Dáil legislates for approximately 4 million people, not for a few dozen isolated individuals who would carry out an atrocity such as that which occurred at Omagh. The legislation applies to all the people on the island and it can be used against the innocent. The sections we are renewing overturn many crucial aspects of Irish law, they criminalise innocent and lawful activities and place the onus on people to prove that they are not criminals. The activities to which I refer include hunting or having in one's possession information which might be deemed to be of use to a paramilitary organisation. The onus will be placed on people accused of being involved in such activities to prove their innocence. A similar situation obtains in respect of the right to silence.

Deputy O'Malley justified the introduction of the various Offences against the State Acts from 1939 to date. He pretended that the legislation under discussion is only to be used against a small violent group of people. The Offences against the State Acts are wide-ranging in nature and can be used not only against people engaged in violent activities, such as paramilitaries, but also against people engaged in peaceful civil disobedience or mass action against a Government or its decisions. For example, it is possible that any organisation which promotes, encourages or advocates the non-payment of moneys payable to the central fund or any other public fund or the non-payment of local taxation shall be an unlawful organisation within the meaning and for the purposes of section 18 of the 1939 Act. Under the legislation a campaign to oppose the introduction of water or refuse collection charges which people consider unjust and unfair can be rendered illegal and suppressed.

The provisions of the Offences against the State (Amendment) Act, are more wide-ranging than we are being led to believe and I oppose their renewal.

An Leas-Cheann Comhairle

As the 60 minutes for this debate have concluded, I must now put the question.

Mr. Howlin

Given that the 15 minutes allocated to the previous item of business were not used, would it be possible, with the agreement of the House, to allocate five minutes to the Minister to allow him to reply to the debate?

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank Members who spoke on this resolution to renew the relevant provisions of the Offences against the State Act, 1998, particularly those who spoke in favour of it. In bringing forward the resolution I am acting on the advice of the Garda authorities that the threat which gave rise to the need for these provisions in the aftermath of the Omagh bombing remains, despite the progress we have made in the peace progress. I am also conscious of not taking any action which would pre-empt the report of the committee chaired by former Justice Mr. Anthony Hederman, which is conducting a wide-ranging review of the Offences Against the State Acts in general.

The sparing application by the Garda of the provisions of the Offences against the State (Amendment) Act provides assurance that measures meant for exceptional cases have not been improperly used. That is not to say, however, that they will not feature in cases yet to be brought before the courts. Nor is it my intention to underplay the need to have in place exceptional powers in anticipation of specific needs which may arise for their use.

A number of Deputies referred to the possibility of people being convicted for the Omagh bombing. A thorough investigation of this matter, involving co-operation between the Garda and the RUC, is ongoing. Legislation on its own cannot uncover the necessary evidence needed to charge people. Everyone is aware that the evidence required must be put before a court, which must be satisfied beyond a reasonable doubt that the individual concerned is guilty. It was never claimed that legislation enacted after a particular offence would produce evidence which could be used against persons in respect of that offence. When the Act was passed it was stated that it was necessary to deal with the threat posed by subversive groups. However, the legislation has been used in investigating particular offences.

Deputies also referred to comments made by the Garda Commissioner in relation to bringing to justice those responsible for the Omagh atrocity. Following the commissioner's remarks, it was clarified that the Garda authorities were determined to do everything possible to bring to justice those responsible for the horrors of Omagh. The Garda Commissioner never indicated otherwise.

It is impossible to quantify the effect of this legislation as a preventative measure. However, I suggest that, as such a measure, the probability is high that it has been extremely successful. The legislation was meant to deal with people intent on subverting the wishes of the vast majority of the Irish people. When it was introduced, the Taoiseach correctly described it as draconian. However, the Garda authorities and I believe that it is necessary that the legislation should remain in force.

It must also be stated that the investigation of the Omagh bombing is ongoing. There is no question of the file being closed; this matter is being vigorously and actively pursued. I am of the view that, ultimately, this legislation will be of considerable benefit in the context of the threat posed by subversive elements in our society.

An Leas-Cheann Comhairle

I am now putting the question, "That the motion be agreed to." Is that agreed?

Mr. Howlin

Agreed.

An Leas-Cheann Comhairle

I think the question is carried.

Deputies

Vótáil.

An Ceann Comhairle

Will the Deputies who are claiming a division please rise?

Deputies Gregory, Joe Higgins and Ó Caoláin rose.

An Ceann Comhairle

As fewer than ten Members have risen, I declare the question carried. In accordance with Standing Order 68 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Question declared carried.