I move: "That the Bill be now read a Second Time."
The events of 11 September 2001 represented a defining moment for the world. We can all readily recall the horror with which we witnessed the barbaric attacks that day in New York, Washington and Pennsylvania. The close ties that exist between Ireland and the United States of America meant that those images were especially felt by the people of Ireland. A significant number of the more than 3,000 persons killed were Irish born and more, not least those brave and selfless members of the emergency services who lost their lives in the course of the rescue, had Irish connections.
Terrorism, of course, did not begin or end on 11 September. We continue to witness acts of terrorism around the globe on an all too frequent basis. Deputies will recall, in particular, in the period since 11 September, atrocities such as: the attempted suicide attack in December 2001 by the so-called "shoe bomber" on an American Airlines flight from Paris to Miami; the suicide attack in April last on the Tunisian island of Djerba in which 21 people died when a fuel tanker was detonated near a synagogue; the mass hostage taking at a Moscow theatre in October last which resulted in the death of more than 100 hostages; the bomb attacks in Bali, Indonesia, also in October last in which almost 200 persons lost their lives and many more were injured; the bomb attack in Kenya in November last in which 11 people died, as well as the failed missile attack the same day on an Israeli charter jet with over 260 passengers; and the suicide bombing on 5 January in Tel Aviv in which 23 people died and over 100 people were wounded in an explosion adjacent to the old central bus station, which was the latest in a series of such attacks.
Terrorism is not something unfamiliar to us in Ireland. We have long experienced domestic terrorism on this island and dissident republican and loyalist groups continue to pose a threat to the Good Friday Agreement and to peace. The events of 11 September were followed by a shared world-wide determination that the forces of terrorism should not prevail. There was also an early and widespread recognition that the response to the challenge of international terrorism represented by those atrocities would require concerted action and greater co-operation by the international community as well as action on the part of individual states. The determination to prevail over terrorism is reinforced by every subsequent act of terrorism as these attacks illustrate, in the most vivid manner, that international terrorism strikes at the heart of universal values such as peace, tolerance and freedom. Our response to these outrages must be to uphold and protect such values and to deny international terrorists the means and opportunities to launch attacks.
Moreover, the terrible images and heartbreaking stories born of such atrocities serve as a constant reminder that we, as members of this Legislature, have our own duty to ensure that terrorists will find no comfort in this jurisdiction. Such a solemn duty merits strong action, not merely fine words. This will allow Ireland to fully play its part in the fight against international terrorism in keeping with the response of the international community as a whole to the events of 11 September 2001 and subsequently.
The response demanded by the nature of the 11 September attacks quickly followed from the international community. The United Nations has been the focal point in framing that response at the level of the world community, while the European Union has played the key role at regional level. That response has provided an important part of the context in which this Bill has been framed.
The United Nations Security Council, of which Ireland was a member, adopted resolutions 1368 and 1373 with the intention of creating a framework for action by the world community. Resolution 1368 condemned the attacks of 11 September 2001 and called on states to work together to bring the perpetrators to justice and to redouble their efforts to prevent and suppress terrorist acts. Resolution 1373 specified a range of measures on which states are required to take action, especially in the area of combating the financing of terrorism. As part of those measures, the United Nations also called on states to become parties to the relevant international conventions on terrorism and to co-operate, through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts.
The European Union also responded quickly to the challenge. Meeting on 20 September 2001, the Justice and Home Affairs Council agreed on a range of measures to be taken to step up the fight against terrorism within the European Union. Meeting the following day, the European Council approved a plan of action to this end. The fight against terrorism has remained a key priority for the Union in the period since and action continues to be taken on a wide range of fronts.
Among the measures on which political agreement was achieved at the meeting of the Justice and Home Affairs Council in December 2001 was a framework decision on combating terrorism. This framework decision, which provides for a common definition of terrorist offences, including offences relating to terrorist groups, was subsequently formally adopted by the Council on 13 June 2002. Dáil Éireann and Seanad Éireann had earlier approved Ireland's participation in its adoption.
We, on this island, have had to face the challenge of terrorism. Dissident republican and loyalist groups continue to operate and pose a threat. As a result, legislation already in place here is more comprehensive than that in many other countries. However, our legislation has been primarily framed with reference to the threat posed by groups indigenous to Ireland. In the changed environment created by the events of 11 September 2001, it is clear we need additional legislative provisions to counter the international terrorist threat.
I will devote some time to outlining the Bill, given its importance and provenance, and I ask for the indulgence of the House in this regard. Against that background and building on our existing legislation, the Bill is intended to enable this State to play its part in the fight against international terrorism. It will give effect to a number of international instruments directed to terrorism and will enable us to meet commitments which the State has undertaken as part of the European Union and the broader international community, including commitments arising from United Nations Security Council Resolution 1373.
The Bill also amends our law more generally to enhance the capacity of the State to address the problem of international terrorism and makes provision for a number of additional measures directed, in particular, to the financing of terrorism. More specifically, the Bill serves three essential purposes. First, it will give effect in our law to the European Union framework decision on combating terrorism by making provision for the first time for terrorist offences to be defined as a separate and distinct category of offence in our law and by making provision for the application of the relevant provisions of the Offences against the State Acts, 1939 to 1998, to terrorist groups who commit terrorist offences, whether based inside or outside the State.
Second, it will give effect to three United Nations conventions directed to specific manifestations of terrorism, namely, the Convention against the Taking of Hostages, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons and the Convention for the Suppression of Terrorist Bombings.
Third, it will give effect to the United Nations Convention for the Suppression of the Financing of Terrorism and will make ancillary provision for the purpose of combating the financing of terrorism by means of the creation of dedicated procedures allowing for the freezing of funds used or intended to be used for terrorist offences or terrorist groups.
I now propose to outline the Bill's main provisions by reference to these three essential purposes. Part 1 defines certain terms used in the Bill and provides for the bringing into force of the Bill when enacted. Part 2 will give effect to the framework decision on combating terrorism adopted by the Council of the European Union on 13 June 2002. This framework decision is directed to the approximation of the laws of the member states in relation to a common definition of terrorist offences, including offences relating to terrorist groups. This new common understanding of what terrorism means will be important not only in providing a co-ordinated European Union-wide response to terrorism, but also in facilitating cross-border co-operation in tackling it.
Framework decisions are binding on member states as to the result to be achieved, but leave to national authorities the choice of form and methods and do not entail direct effect. The Bill, therefore, proposes to make the necessary provision in our law to give effect to the framework decision and, accordingly, provides for terrorist offences as a separate and distinct category of offence in our law by reference to definitions of "terrorist activity" and "terrorist linked activity". It also makes provision for terrorist groups by way of the application of the relevant provisions of the Offences against the State Acts to such groups and for enhanced penalties to attach to terrorist offences in certain circumstances.
The definitions are outlined in section 4. "Terrorist activity" is defined by reference to offences under our law which are committed in or outside the State with the intent of seriously intimidating a population, unduly compelling a Government or international organisation to perform or abstain from performing any act or seriously destabilising or destroying the fundamental political, economic or social structures of a state or an international organisation.
The specified offences for the purpose of the definition of terrorist activity are set out in Part 1 of Schedule 2 and comprise those offences under Irish law which correspond to the specified categories of intentional acts set out in article 1 of the framework decision. These are serious offences, for which persons are liable to be tried on indictment, involving violence against persons or property and related firearms and explosives offences or offences involving chemical or nuclear weapons. Likewise, the required intent for the purpose of the definition follows closely the wording of the framework decision itself.
"Terrorist linked activity" is similarly defined by reference to certain other specified offences under our law committed in or outside the State for the purpose of engaging in terrorist activity or in connection with the activities of terrorist groups by reference to the relevant offences under the Offences against the State Acts. The specified offences for this purpose are set out in Parts 2 and 3 of the second Schedule and comprise those offences which correspond to specified categories of intentional acts set out in article 3 of the framework decision, that is, offences of aggravated burglary and robbery, blackmail, extortion and certain forgery offences. "Terrorist group" is defined by reference to the framework decision, that is, a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences.
Section 6 makes provision for terrorist offences by reference to those definitions and in keeping with the requirements of the framework decision. Subsection (1) provides that a person who engages in terrorist activity or terrorist linked activity inside or, in certain circumstances, outside the State, is guilty of an offence. It also makes attempting to engage in terrorist activity or in terrorist linked activity and threatening to engage in terrorist activity inside or outside the State an offence. The effect of the definitions of terrorist activity and terrorist linked activity will be to require proof of the commission of the relevant underlying offence, together with proof of the special intent, for that to become a terrorist offence or terrorist linked offence as the case may be.
The circumstances in which terrorist offences committed outside the State will be offences in our law are governed by subsections (2) and (3) and correspond to those circumstances in which article 9 of the framework decision requires us to take extra-territorial jurisdiction. Extra-territorial jurisdiction will also be exercisable in circumstances where a request for extradition has been made and is refused.
Subsection (4) of section 6 provides that subsection (1) will not apply in respect of the activities of armed forces during an armed conflict in so far as those activities are governed by international humanitarian law, or the activities of military forces of a state in the exercise of their official duties in so far as those activities are governed by other rules of international law. Similar provisions are made in relation to the UN Convention offences dealt with in Part 3 of the Bill, in keeping with the relevant requirements of those conventions.
Subsections (5) and (6), recognising the special difficulties that can attach to proving offences of specific intent, also make provision for certain circumstances in which the existence of the intent required for the purposes of committing the offence of engaging in or attempting to engage in terrorist activity may be presumed to exist, subject to the right of the accused to rebut that presumption. Subsection (7) makes provision for co-operation in respect of prosecutions in relation to terrorist offences in circumstances where more than one member state may have jurisdiction.
The penalties which will apply to persons convicted of terrorist offences are set out in section 7. This provides, in keeping with article 5 of the framework decision, for enhanced penalties in certain circumstances by reference to the penalties imposable for the same offence when committed without the special intent required for terrorist offences. The penalty imposable will be the same where it is a sentence of imprisonment fixed by law or imprisonment for life, but enhanced maximum penalties will be available in all other circumstances.
Section 5 makes provision for terrorist groups, as defined in section 4, by way of the application of other relevant provisions of the Offences against the State Acts to such groups whether based inside or outside the State. This will allow the requirements imposed by Articles 2 and 9 of the framework decision to be met in keeping with our existing law directed to unlawful organisations. It is also in keeping with a recommendation of the Committee to Review the Offences against the State Acts which was that the Government should have power to make a suppression order in respect of foreign terrorist organisations. The section provides that terrorist groups will be unlawful organisations for the purposes of the Offences against the State Acts and that the relevant provisions – including, for example, provision for the offences of membership and directing an unlawful organisation – will attach equally to terrorist groups, as will the power of the Government to make suppression orders in relation to them.
Part 6 makes provision for certain amendments to the Offences against the State Acts which are directed principally to the requirements of the framework decision. These include provision for a new offence of providing assistance to an unlawful organisation in section 51. That offence will be committed where a person knowingly renders assistance to an unlawful organisation in the performance or furtherance of an unlawful object. A person found guilty of this new offence will be liable to the same penalties as those provided for in the case of membership. This provision flows in part from a recommendation in the report of the committee to which I have referred which recognised that there could be cases where persons are closely associated with unlawful organisations and actively further their ends but are not, or cannot be proven to be, members of the organisation. It is also in keeping with the concept of participation in a terrorist group used in Article 4 of the framework decision which would not necessarily be fully met by the existing offence of membership.
The second such amendment to which I refer is being made by section 50 of the Bill to increase the maximum penalty for membership of an unlawful organisation to €3,000 and/or imprisonment for up to 12 months in the case of a summary conviction, and an unlimited fine and/or imprisonment for up to eight years in the case of a person found guilty on conviction on indictment. This meets a requirement in Article 5 of the framework decision.
The framework decision is explicitly stated as not being intended to amend the obligation to respect the fundamental legal principles enshrined in Article 6 of the Treaty on European Union, which has reference, inter alia, to the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, which are common to member states, as well as to the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.
I hope it will be clear from what I have just said that the provision being made in the Bill for the purposes of giving effect to the framework decision on combating terrorism should not give rise to concern on the part of those who seek change in our society or who engage in legitimate protest.
The Bill does not, as has been suggested frequently and irresponsibly elsewhere, define terrorism as any activity which unduly compels a Government or international organisation to change course. Nor does it define terrorism as any activity which destabilises or destroys the fundamental political economic or social structures of a state. The Bill does not, therefore, and is not intended to, criminalise the anti-globalisation movement because that movement is seeking to reform world trade. Nor would the Bill have had any application to the anti-apartheid movement because it campaigned for the replacement of the apartheid regime in South Africa.
The Bill does not make it an offence to seek change, nor does it make it an offence to have a cause. We value the right to espouse causes in our society and the Government will continue to defend that right, including the right of persons to espouse causes and views with which the Government itself may disagree. The Bill will, in its own way, protect such persons from those who would threaten that right. What is not legitimate – and where the Bill draws the line – is where persons or organisations engage in concerted campaigns of violence in support of such causes.
The Bill does not criminalise conduct which would not already be an offence under our law, except to the extent that it provides for the taking of extraterritorial jurisdiction in the limited cir cumstances I have outlined. What the Bill does mean, however, is that people and organisations who have recourse to serious offences involving violence such as hijacking, explosives offences and murder – with the intention of intimidating a population, unduly compelling a government or international organisation, or seriously destabilising or destroying a state or international organisation – will, in keeping with that intention, be guilty of a terrorist offence instead of the offence which they would otherwise be guilty of under our criminal law.
The purpose of Part 3 is to enable Ireland to become party to three United Nations conventions which are relevant in the context of the international effort against terrorism. I have told the House already what they are.
Convention-specific offences are being created in this Bill for the purpose of each of the three conventions in order to ensure full compliance with the requirements under each convention, including the requirement to take extraterritorial jurisdiction. These offences will in certain cases supplement existing offences under our law directed to the same or similar conduct. They will at the same time ensure that any gaps as between existing offences, and the offences as defined in the convention, are bridged.
Sections 9 to 11 provide for the new offences. Section 9 provides for the new offence of hostage-taking. It provides that a person is guilty of the offence of hostage-taking if he or she, in or outside the State, seizes or detains another person and threatens to kill, injure or continue to detain the hostage in order to compel a state, an international intergovernmental organisation, a person or a group of persons to do, or abstain from doing, any act.
Section 10 provides for the offence of terrorist bombing. It provides that a person is guilty of an offence if he or she, in or outside the State, unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a state or Government facility, a public transportation system or an infrastructure facility with intent to cause death or serious bodily injury or with intent to cause destruction when destruction results in, or is likely to result in, major economic loss.
Section 11 makes provision in relation to internationally protected persons. It will be possible to rely on existing offences under our law for the purpose of meeting our obligations in relation to offences committed against internationally protected persons in this jurisdiction. Section 11, therefore, makes provision for the taking of jurisdiction in respect of those offences when committed outside the State in certain circumstances by reference to the relevant domestic offences set out in Schedule 6 to the Bill.
Sections 9 to 11 also make it an offence to attempt to commit the substantive offence while section 11 makes it an offence to threaten to commit an act which would be an offence under that section. Persons guilty of the offence of hostage-taking or terrorist bombing will be liable on conviction on indictment to imprisonment for life. Persons guilty of an offence in relation to internationally protected persons under section 11 will be liable to be punished by the same penalties which are applicable to the offences if committed in the State. The offence of threatening to commit an offence carries a sanction of imprisonment for a term not exceeding ten years.
The three sections also make the relevant conduct an offence when committed outside the State in certain circumstances. The approach to extraterritorial jurisdiction in all three conventions is largely similar although there are some differences as between them.
The third key element of the Bill is the measures contained in Parts 4 and 6 intended to give effect to the United Nations Convention for the Suppression of the Financing of Terrorism and aimed at combating terrorist financing more generally in keeping with our obligations under UN Security Council Resolution 1373 and the financial action task force recommendations.
The key provision in the Bill for the purpose of giving effect to the convention is section 13, which makes provision for the new offence of financing terrorism and which gives effect to the definition of that offence in Article 2 of the convention. It also goes beyond the requirements of the convention to include the financing of terrorist groups as defined in section 4 and terrorist offences within the meaning of section 6 to the extent that these are not covered by the convention.
The jurisdiction provisions in section 13 correspond to both the mandatory and the discretionary jurisdiction requirements in Article 7 of the convention. The one exception is that they do not apply to the framework decision element of the offence; this element is covered by the jurisdiction provisions of sections 6(2) and 6(3). The definition of "funds" in Article 1 of the convention is reflected at section 12. It is a comprehensive definition covering assets of every kind with the emphasis very much on financial transactions.
Part 4 also provides for two distinct and dedicated procedures for the purpose of giving effect to Article 8 of the convention and to our wider obligations under Resolution 1373. Both procedures are court-based and build on existing provisions of our law. The key difference between them is that the first will enable an application to be made to freeze funds intended for use in committing terrorist offences independently of criminal proceedings, whereas the second will be available for use in conjunction with such proceedings in respect of the new offence of financing terrorism. The two procedures will therefore complement each other.
Provision for the first of these procedures is made in sections 14 to 20 and will enable funds which are being used, or which may be intended to be used, for the purpose of committing terrorist offences, including the offence of financing ter rorism, to be frozen and ultimately made subject to a disposal order in favour of the State. The procedure closely mirrors the existing provisions of the Proceeds of Crime Act 1996 under which the High Court can order the preservation, and where appropriate, the disposal of property which constitutes the proceeds of crime.
Section 14 will accordingly enable the High Court to make an interim order prohibiting a person from disposing of funds for a period of up to 40 days where it is satisfied, on foot of an ex parte application to the court by a chief superintendent of the Garda Síochána, that a person possesses funds that are being used or may be intended for use in the commission of a terrorist offence or a terrorist financing offence. Section 15 will enable the High Court to make an interlocutory order extending the period during which the funds are frozen unless satisfied, by any person claiming an interest in those funds, that they are not intended for such use or that there would be a serious risk of injustice. Section 16 will in similar circumstances enable the High Court to make a disposal order in favour of the State where an interlocutory order has been in force for a period of not less than seven years.
The Bill also makes provision for a statement by a chief superintendent that he or she believes funds are being used or are intended for use in committing or facilitating the commission of a terrorist offence to be evidence, provided that the High Court is satisfied that there are reasonable grounds for that belief. In addition, it provides for the payment of compensation, as the court considers just, to a person in respect of any loss incurred by a person in respect of orders made in accordance with the procedure.
The second procedure in Part 4 of the Bill to which I referred is contained in sections 21 to 43, inclusive. These provisions provide a statutory framework which will enable the confiscation, restraint and forfeiture provisions of the Criminal Justice Act 1994 to be applied for the purpose of the new offence of terrorist financing. It is necessary to legislate in this way as the existing relevant provisions of the 1994 Act only allow for the confiscation and restraint of the benefits derived from drug trafficking and the benefits from an offence other than drug trafficking. The Bill amends the 1994 Act to provide a dedicated procedure for the purpose of the offence of financing terrorism.
The effect of the amendments will be that where a person has been convicted of and sentenced for an offence of financing terrorism, the Director of Public Prosecutions can apply to the court to determine whether the person holds funds subject to confiscation. The expression "funds subject to confiscation" is defined in section 8A of the 1994 Act, which is being inserted into that Act by section 22 of the Bill, as funds used or allocated for use in connection with an offence of financing terrorism, or funds that are the proceeds of such an offence. Also, in line with the drug trafficking and other offences provisions of the 1994 Act, the standard of proof applicable in civil proceedings is the standard required to determine whether a person holds funds subject to confiscation and, if so, the amount to be recovered, in other words, on the balance of probability.
The 1994 Act also contains important provisions directed to the prevention and detection of money laundering. Section 32 of the Bill amends the relevant provisions of the 1994 Act to extend the obligation on financial institutions to adopt measures for the purpose of preventing and detecting money laundering to also cover the prevention and detection of the offence of financing terrorism. Likewise, under section 38, the obligation on financial institutions to report to the Garda Síochána any suspicion of money laundering is being extended to include an obligation to report any suspicion of an offence of financing terrorism being committed in connection with their business. These provisions will provide an important means by which the existence of terrorist funds may come to light and provide a basis for recourse to the procedures for the freezing of those funds which I have just outlined.
Another section in Part 4 I wish to mention is section 44 which empowers the Minister for Finance to make regulations directed to freezing terrorist funds in order that enabling Acts adopted by the institutions of the European Communities for this purpose can be given full effect. The real significance of section 44 is that it provides for an indictable offence for breach of the regulations. At present, breach of the regulations can only be tried summarily. This provision will have particular application to the measures adopted within the European Union for the purpose of giving effect to UN Resolution 1373.
Part 6 of the Bill will also make provision for another important element of the package directed at combating the financing of terrorism by way of an amendment of the Offences against the State Acts. The Bill will allow existing provisions of those Acts which have application to the property of unlawful organisations to be applied to terrorist groups. Certain additional measures are also being provided for in the Bill, including in section 53 provision for a procedure directed to the recovery of the property of unlawful organisations in respect of which a suppression order has been made which stands forfeited to the Minister. This procedure, which will be court based, draws on the provisions of the Offences against the State (Amendment) Act 1985 and the Proceeds of Crime Act 1996 for inspiration and is intended to complement the procedure under the 1985 Act which applies to the moneys of unlawful organisations held in a bank. It includes a provision allowing any interim order made by the court to be challenged by any person claiming ownership of the property and for the payment of compensation in appropriate circumstances.
Sections 52, 54 and 55 of the Bill make certain other amendments to the Offences against the State Acts for the purpose of combating the financing of terrorism. These include updating the definition of property in line with other provisions of the Bill and amendments to the 1985 Act to ensure it will be available for use as circumstances require.
These are the key elements of the Bill which contains certain other procedural provisions as well as consequential amendments to a number of other Acts to which I could also refer but I am conscious that I have already spoken at length. There will be an opportunity to deal with any queries Deputies may have in relation to those provisions in my reply or on Committee Stage.
My reasons for speaking at such length about the Bill are the circumstances and context in which it has been prepared, the complexity of some of its provisions and the manner in which they relate one to another. In addition, there has already been a tendency on the part of some to misrepresent the Bill and suggest it is directed at ordinary, peaceful, democratic activity, the free expression of convictions and free political association. I hope my comments will assist the House in its task of considering the Bill which is important, not least because it will equip the State more fully for the purpose of responding to the threat posed by international terrorism but also because it will enable the State to honour important international commitments and play our full part, as a member of the international community, in the fight against terrorism.
This country still faces terrorist threats from both within and without. I intend to ensure our law is such that Ireland harbours neither a terrorist threat from within directed at ourselves or others on the islands nor persons intent on abusing the hospitality they receive here to plan international terrorist offences of the kind we have witnessed and which I mentioned. I welcome the contributions of Members from all sides to this legislation, particularly any contribution which will make the Bill fairer, more effective, just and efficient. I will consider amendments and proposals from any quarter. I hope the House joins me in ensuring the Bill gets a speedy passage through the Legislature. Important though it is and extensive though its powers may be, it is directed towards ensuring Ireland is not a society within which those planning to kill other innocent people can find legal loopholes through which to carry out their cowardly plans. I commend it to the House.
