Dáil Éireann debate -
Wednesday, 25 Jun 2003

Vol. 569 No. 4

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

Minister for Justice, Equality and Law Reform (Mr. McDowell)

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 12 months beginning on 30 June 2003.

The resolution before the House today seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act 1998, which would otherwise cease to be in operation on 30 June 2003.

The recent Garda operation in County Louth and the PSNI discovery of a large van-bomb in Derry are clear indications of the continuing need for perseverance in the fight against terrorism on this island. Members of this House will need no reminder of the circumstances in which these provisions were enacted in 1998, namely, the Omagh bomb in August of that year. There was a determination that those responsible for that mass murder would not succeed in subverting the democratically expressed will of the people on this island and that the conflict should be resolved only by peaceful means and on the basis of consent. To date, one person has been convicted in this jurisdiction on a charge related to the Omagh bomb, and the investigation is continuing with excellent co-operation between the Garda Síochána and the Police Service of Northern Ireland. As has been stated before, a point worth reiterating, the Garda Síochána will never give up the search for those responsible for that mass murder.

Deputies will recall that in recognition of the particular circumstances surrounding the enactment of the provisions of the 1998 Act, there was general agreement that the Act should be regularly revisited by the Oireachtas to see if the circumstances then prevailing justified the continuance in force of its provisions, or whether there had been a change in circumstances sufficient to convince the Oireachtas that the provisions were no longer needed. Under section 18 of the Act, therefore, as amended by section 37 of the Criminal Justice Act 1999, and by virtue of resolutions passed by each House of the Oireachtas on 20 June 2000, 26 June 2001 and, more recently, on 18 April 2002, sections 2 to 12 and 14 and 17 will cease to operate on and from 30 June 2003 unless a further resolution is passed by each House authorising the sections to continue to operate for such period not exceeding 12 months as may be specified in the resolution.

Also included in the Act was a requirement on me to lay a report on the operation of the Act before each House of the Oireachtas prior to any consideration by the Houses of the renewal of the provisions. Such a report was laid before this House on 18 June. The conclusion of that report is that the renewal of the provisions for a further year is necessary. The sad reality is that, as already mentioned, those responsible for the Omagh bomb continue to pursue and plan a campaign of murder and violence and that there is no change of substance to the circumstances which led to the enactment of the 1998 Act.

Before turning to the individual sections of the Act, I should mention the current position regarding the report of the committee to review the Offences against the State Acts 1939 to 1998, which was published last August. The report is extensive and deals with complex issues of law and policy and involves important considerations concerning the balance to be struck between national and international security on the one hand and civil liberties and individual rights on the other. The report's recommendations of direct relevance to the purpose and scope of the Criminal Justice (Terrorist Offences) Bill 2002 were considered in the context of the preparation of that legislation, and the Bill, accordingly, will give effect to a limited number of recommendations to that end. A fuller consideration of the recommendations of the committee will be finalised once the Bill has been enacted and I will then bring further proposals to the Government.

I now turn to the individual sections which this House is asked to continue in force for a further 12 months, outline their purpose and indicate where they have been utilised in the past 12 months. First, the following sections have not been utilised since 23 March 2002: section 3, which provides that, in proceedings for an offence of membership of an unlawful organisation, the accused must give notification of an intention to call a person to give evidence on his or her behalf, unless the court permits otherwise.

Section 4, which amends section 3 of the Offences against the State (Amendment) Act 1972. The effect of the 1972 provision is that any statement or conduct by a person accused of membership of an unlawful organisation implying or leading to a reasonable inference that he was at a material time a member of such an organisation shall be evidence that he or she was then such a member. It originally defined 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 of the 1998 Act was to expand the definition of "conduct" to include movements, actions, activities or associations. This simply aligns the definition of conduct in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.

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. While this section was not utilised during the period under report, one person remains before the courts having been charged with such an offence prior to that period. 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. 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.

Section 17 builds on the provision in the Criminal Justice Act 1994 for the forfeiture of property. Essentially, the 1994 provision empowers a court, in its discretion, whenever any person is convicted of an offence, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, to require the court 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.

Turning to those sections of the Act which have been used in the reporting period, section 2 provides that where, in any proceedings against a person for membership of an unlawful organisation, evidence is given that the accused, when questioned, failed to answer or gave false or misleading answers to any question material to the investigation of the offence, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. This provision has been utilised on many occasions in questioning persons arrested on suspicion of being members of an unlawful organisation. Charges do not, of course, result in every case in which the provision is used, but since 23 March 2002, the section was utilised on 43 occasions. In addition, six persons were convicted during the period under report, having been charged prior to that period in cases where this section was utilised.

Section 5 provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts and any offence arising out of the same set of facts as such an offence, provided that the offence carries a penalty of five years imprisonment or more. The effect of this section 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 was utilised on one occasion in the reporting period.

Section 7 made it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. This section was utilised on 18 occasions. Section 9 made it an offence to withhold information which a person knows or believes would 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. This section was utilised on 17 occasions.

Section 10 extends the maximum period of detention permitted under section 30 of the Offences against the State Act, which otherwise is 48 hours, to 72 hours on the authorisation of a District Court judge. The judge must be satisfied, on the application of an officer of the Garda Síochána not below the rank of superintendent, 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 or her behalf. In the reporting period, 32 persons have had their periods of detention extended under this provision and nine were subsequently charged with offences.

Section 11 allows a District Court judge to permit the rearrest and detention of a person in respect of an offence for which he or she was previously detained under section 30 of the Offences against the State Act but released without charge. This further period must not exceed 24 hours and can only be authorised 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 about that person's suspected participation in the offence and about which it wishes to question the suspect. This section was utilised on two occasions.

The effect of section 14 is to make these new offences scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing such offences are liable to arrest under section 30 of the 1939 Act. This section was utilised on 83 occasions.

The foregoing information on the use made of the provisions of the 1998 Act in the reporting period is based on information received from the Garda authorities and is contained in the report on the Act laid before the House. This report, together with the previous reports, shows that the key provisions of the Act are taking effect. We have seen the results of this legislation since its inception. Of course, the most significant result in the Garda's fight against subversive activity was the conviction of a person on a charge of conspiracy to cause an explosion in relation to the Omagh atrocity. The provisions of the 1998 Act were used appropriately by the Garda in this case and will continue to be used in its efforts to bring to justice all those responsible for that horrific act of mass murder.

At the same time it should be noted that the number of persons held under extended detention under section 10 in the reporting period was 32, as against 39 in the previous nine month period. This is a relatively modest number and one which, taken together with all the other information I have outlined, supports my view that the provisions of the Act are reasoned and proportionate and are being implemented by the Garda Síochána in a measured and restrained manner.

There are, of course, some provisions which did not take effect in the context of court proceedings during the period under report, but even here the Garda authorities have informed me that the provisions in question have been utilised, where appropriate, by the gardaí during the investigation of offences. Members of the House will appreciate, of course, that many of the investigations at issue are, of their nature, ongoing.

The Garda Síochána has had considerable success in the reporting period in combating those who would subvert, through the use of violence, the democratic wishes of the people on this island and I am sure that the House will join with me in congratulating the force on its achievements. However, the threat to life and our democratic values, which led to the enactment of the 1998 Act, remains. So too, I am sure, does the determination of this House to never give in to such a threat, but to provide the Garda and the criminal justice system with all legitimate means of combating it. The 1998 Act is an important part of those means and it is proving its worth.

Much has been achieved in the implementation of the peace process and much remains to be done, but there are still those who threaten to subvert it through violence. The 1998 Act is part of the democratic response to that threat and I ask this House to continue to enforce its relevant provisions for a further 12 months. It is my earnest hope that as soon as it is possible not to move a motion of this kind, such a motion will be moved. A massive bomb was discovered ready for use in Derry the other day in circumstances in which if it did not kill many, it would have been a minor miracle. Anybody who saw that must realise a threat of mass murder and subversion still exists. Only a clear message from this House as to where it stands on this issue will suffice on this occasion.

Mr. Deasy

Fine Gael supports this motion as it always has. I agree with the Minister that if the last couple of months are anything to judge by, we are looking at an increased level of dissident republicanism. The threat of violence is certainly increasing. A bomb was planted on Merrion Square last month which the Garda says would have caused very serious injury to somebody had it exploded. The Garda seized a 1,000 lb bomb in Louth two weeks ago which was ready to be transported to the North and the Minister has already explained that a massive primed bomb was found in Derry. These incidents are indications of the increased level of dissident republicanism with which we are faced. Last January the PSNI headquarters was attacked as were other stations in the Belfast area. The Chief Constable, Hugh Orde, has warned that members of the district police boards could be in danger and stated that the threat against them is very real.

Some Deputies will surely have been reading the reports from the Central Criminal Court yesterday and today. If one reads the details of Mr. Rupert's evidence, one will quickly conclude that the evil which has existed on this island for 30 years is alive and well. All members of society must be vigilant against the growing threat of dissident republicanism. There was clear evidence that the recent serious gangland activity in Limerick was facilitated by weaponry supplied by the Continuity IRA to gangs in the Limerick area. There is also strong evidence to suggest that some universities are recruiting grounds for dissident republican movements whose aim is to put together a major bombing campaign in the UK and the British mainland.

The Minister mentioned the Omagh bombing a number of times as it was the reason this resolution was originally formulated. I could not help but remember during his speech comments made by Sinn Féin's Alex Maskey a few months ago when he called on dissident republicans to disband after numerous bomb attacks in the Belfast area. To this day, Sinn Féin has never advocated that individuals co-operate with the Garda or the PSNI to bring the perpetrators of the Omagh atrocity to justice. That appals most people. I could not help but remember something the Sinn Féin president, Gerry Adams, said recently. He said the Omagh bombing was a grievous blow to the families who lost loved ones and whose loved ones were injured and that it represented a set back for the broad republican struggle. This comment comes from the party which would not support the Garda Síochána (Police Co-Operation) Bill or the Criminal Justice (Joint Investigations Teams) Bill both of which were recently before this House. These Bills provide for better co-operation between the PSNI and the Garda to prevent atrocities such as the one which occurred at Omagh from happening again. Sinn Féin feels the pain of the victims, but when it comes to supporting the institutions of the State to ensure that an Omagh never happens again, the party is nowhere to be found.

Today we were informed of the success of the Criminal Assets Bureau which has taken €90 million from gangland bosses and drug traffickers. It is good news that the remit and jurisdiction of the CAB will be expanded to give it a wider role to combat terrorism and terrorist groups. The bureau recently served a tax bill on the Real IRA's second in command to the tune of €750,000, which is the first such move against the finances of dissident republicans. As mentioned yesterday by Senator Brian Hayes in the Upper House, there is good reason to believe the IRA now fronts legitimate businesses. If the remit of the Criminal Assets Bureau is being expanded to tackle terrorist groups, it should look immediately into the business activities of the IRA and confiscate its profits. As was said yesterday, we cannot allow groups, even those which are on ceasefire, to diversify their illegal activities.

Last year, my predecessor, Alan Shatter, concluded his contribution on this motion by expressing the hope that by 2003 we would be in a new environment and would not need to continue with this resolution. He was being optimistic, however. We will probably bring this motion before the House for a couple of more years, but we will not need it eventually. The vast majority of people on this island understand that there can be no return to the state of affairs which existed previously. The will of the people will ultimately prevail. I support this motion completely, as does my party.

Mr. Costello

Emergency amending legislation was introduced in September 1998 in the aftermath of the horrific Omagh bombing, the worst single incident in more than 30 years of violence. It came as a particular shock coming within months of the signing of the Good Friday Agreement and its subsequent endorsement in referenda by an overwhelming majority of people, North and South. Against this background, the Houses of the Oireachtas voted overwhelmingly to approve the Bill the Government brought forward in spite of the strong reservations many Members held about the severe nature of many of its provisions. The Labour Party agreed to enact the Bill as we were led to believe the law then operating would not be adequate to bring those responsible to justice. Further powers were needed. Newspaper reports at the time quoted a senior Department of Justice, Equality and Law Reform spokesman as saying that while intelligence and evidence against the people involved existed, there was no way to secure convictions under existing legislation. The spokesman said there was enough evidence against those responsible for the heinous crime to make strong cases against them under the new legislation.

The Oireachtas delivered the new powers sought by the Minister and the Garda, who have failed subsequently to deliver prosecutions and convictions to the extent we were given to believe they would. As the Minister said, one person has been convicted in the five years the special emergency legislation has been in operation. It is not a wonderful tally. The failure to make successful use of the powers provided by the Oireachtas raises legitimate questions of whether these powers were needed and whether, given their non-use, they should remain on the Statute Book. Wider issues arise regarding the offences against the State code in its entirety. We have a poor record of introducing emergency legislation to deal with specific circumstances which we subsequently leave on the Statute Book for decades. The declaration of emergency made during the Second World War was allowed to remain in effect, if not in use, until the rainbow Government moved a motion to lift it in 1995.

The Special Criminal Court had been reintroduced in 1972 and is still in use. It is surely time to consider whether it is appropriate that legislation with such extreme powers as the Offences against the State Act, as amended, should be a permanent fixture on the Statute Book. The original Act was a creation of its time. There are sections that could not conceivably be used now. It is, for instance, an offence to refer in writing to the illegal organisation known as the IRA. The newspapers commit an offence every time they refer in their columns to the IRA yet nobody would suggest that the newspapers should be prosecuted. There are many other provisions that have been used only rarely, if at all.

It is time for a fundamental review of the Offences against the State Act by the Oireachtas. The Hederman report should have provided the vehicle to enable us to do so. The Constitution states: no person shall be tried on any criminal charge save in due course of law; that minor offences may be tried by courts of summary jurisdiction; that special courts may be established in cases where it may be determined that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order; and that, save in regard to minor offences or offences tried by special courts or military tribunals, no person shall be tried on any criminal charge without a jury.

The Government made a proclamation on 26 May 1972, bringing Part V of the 1939 Act into operation and, four days later, an order was made establishing the Special Criminal Court. The court sits with three judges without a jury but the rules of law and evidence that apply in proceedings before the court are the same as those in other criminal courts. There is no concept in Irish law of special courts trying special cases according to special rules. That being so, the only basis for its establishment and maintenance is the fear that jury participation would render the administration of justice ineffective.

On 15 June 1972, replying to questions in this House, the Minister for Justice responsible for the re-introduction of special courts, former Deputy Des O'Malley, was asked to cite the cases on which the Government had based its opinion that the ordinary courts were inadequate to secure the effective administration of justice, leading to the decision to introduce special courts, and whether this would be a temporary measure. He replied, much as Ministers for Justice have done ever since, that he was precluded from referring to individual cases in which persons have been acquitted. However, he stated that when a jury verdict has to be unanimous, each member of the jury that brings in a guilty verdict is known to have supported the verdict and is thus a potential target for attack by associates of the convicted person.

He confirmed that the Act envisages Part V as a temporary measure and that the Government is obliged under the Act to revoke its proclamation as soon as it is satisfied that conditions are such as allow that to be done. No such conditions have occurred, it appears, in the last 30 years. Again, when asked had there been any evidence of intimidation of jurors over the last few months, he replied that he was not prepared to go into detail in regard to any individual case. The House and the general public have been hearing much the same ever since. When the paramilitary threat seemed to have abated, organised crime was given as the reason for maintaining these emergency provisions. We can only hope that the disastrous series of events surrounding the prosecutions arising from the murder of Veronica Guerin has led to a re-think of this approach.

In summary, Part V, which establishes the Special Criminal Court regime, is not part of the ordinary law of the land. However, the Government proclamation of 1972 bringing Part V into operation has never been rescinded and what was intended as an exceptional device in times of emergency has, in fact, become a permanent feature of the Irish legal landscape. Rights enshrined in the Constitution have been temporarily put to one side, on the grounds that the courts of this State were inadequate to administer justice and that special measures were needed, placing the apparatus of the State on a permanent emergency footing. In such an environment, allegations of miscarriage of justice, both real and opportunistic, were inevitable.

Under the Good Friday Agreement, this Government committed itself to a wide-ranging review of the 1939 Act, with a view to reform and to dispensing with those elements of the Act which were no longer required. It was not surprising, given its composition, that the Hederman committee failed to reach a unanimous position on whether the Special Criminal Court should be abolished. In August 2002, the committee issued an interim report dealing with the role of the Director of Public Prosecutions in certifying cases for trial by the Special Criminal Court. The interim report was prepared to assist the Government in making a response to the United Nations Human Rights Committee on the case of Joseph Kavanagh.

Mr. Kavanagh was tried by the Special Criminal Court in 1997 on foot of a certificate issued by the DPP to the effect that the ordinary courts were inadequate to secure the effective administration of justice. He unsuccessfully sought to challenge that certificate by way of judicial review. The Supreme Court effectively found that it was all but impossible to challenge the decisions of the DPP unless mala fides could be shown which, in turn, was impossible as there was no obligation on the DPP to give reasons for so certifying cases. Mr. Kavanagh made an application under the optional protocol to the International Covenant on Civil and Political Rights.

The UN Human Rights Committee found that Ireland was in breach of the covenant in that it failed to demonstrate that the decision to try Mr. Kavanagh before the Special Criminal Court was based upon reasonable and objective grounds. It said the State was obliged to provide Mr. Kavanagh with an effective remedy and to give wide publicity to the decision. A 90-day limitation period was imposed on the Government to inform the committee as to how it proposed to give effect to its views. The Government responded to the Kavanagh decision at the end of the 90-day limitation period. In its response, it referred to parts of the majority opinion contained in the interim report of the Hederman review committee. It made no reference to the views of a dissenting minority or to the existence of such a dissent. Those dissenting opinions called for an end to the Special Criminal Court and argued for a strengthening of measures to protect jury trial. Mr. Kavanagh was offered compensation of IR£1,000, which he rejected.

The remainder of the Hederman report was, among other things, to consider the issue of the right to silence, which has already led to adverse findings against Ireland before the European Court of Human Rights. The UN Human Rights Committee had previously, in 1993 and 2000, called for an end to the jurisdiction of the Special Criminal Court in its concluding observations on Ireland's two periodic reports under the ICCPR. There is concern in the international arena, therefore, about the special nature of this legislation. While it is commonplace to lament the shelving by Government of commissioned reports, no tears should be shed if the majority report of the Hederman committee ends up being ignored. I believe this Minister will shed no tears in that regard. As was pointed out by a leading academic commentator, the best way to read that report is to start with the final chapter. It deals with police powers and procedures to combat terrorism and organised crime, apart from those contained in the Offences against the State Acts. Reading this chapter first it becomes clear, to even the most security-driven observer, that the catalogue of such normal powers is so extensive as to defy any justification for the maintenance of the emergency type laws which are the core subject of the report. Mr. Justice Hederman's dissenting view was supported by Professors William Binchy and Dermot Walsh.

The majority of the committee, while favouring the retention of the court, recommended various changes in the way it operates. They considered that the threat from paramilitaries and organised crime was sufficient to justify its retention. However, even among those who supported retention, this was subject to two qualifications: that the necessity for the court be kept under constant review; and that steps be taken to ensure that judges sitting on the court enjoy the same traditional guarantees of independence relating to their tenure and salary, as other judges.

They also recommended the Government should no longer appoint particular High Court, Circuit Court or District Court judges to the court, but that all serving members of these courts be eligible to sit on it, with the President of the High Court acting as its president. The majority recommended further that any resolution establishing the Special Criminal Court should automatically lapse unless positively affirmed by resolutions passed by both Houses of the Oireachtas at three-yearly intervals. The interim report also dealt with the issue of the DPP referring specific cases to the Special Criminal Court on the basis of a certificate and recommended that the decision of the DPP to refer certain cases to the Special Criminal Court be reviewable.

On the other side, in their dissenting view, the minority of the court felt that the proposed safeguards were not sufficient. They said a fundamental principle was at stake, where one side of the adversarial process was able to decide that an accused forfeited his or her right to trial by jury. They proposed dispensing with the Special Criminal Court, stressing that the right to trial by jury was a cornerstone of the criminal law system and that the case for its suspension had not been made. Other countries with an organised crime problem had not resorted to the abolition of the right to jury trial, they said, and the problem of jury intimidation could be dealt with by anonymous juries or by keeping them in a secure, secret location as is done in some of the other countries. Referring to the threat from paramilitaries, they pointed out that in Northern Ireland, where there were non-jury courts, the British Government had undertaken to move as quickly as possible to jury trials.

Even regarding internment, which, unlike the position in the UK, is still legally permitted in Ireland, the committee was divided. The minority adopted a position of absolute opposition. The majority accepted that internment, "could, under appropriate conditions, constitute a legitimate, exceptional response to exceptional circumstances." That is a bit of a mouthful. The committee seemed to wish to preserve in a stable democracy measures that the Irish Government would strongly oppose in Northern Ireland which is part of the anomaly that exists there. Effectively we have retained a non-jury court whereas the British Government has moved away from it in Northern Ireland.

Mr. McDowell

It has not moved yet.

Mr. Costello

There are serious arguments for looking again at the special legislation that we have on our books. It is not intended by the tenor of the Constitution, it is against the spirit and the letter of the Constitution and there will always be a reason or excuse for us to have special measures to deal with what are going to be regarded as special circumstances. Unless at some stage we decide to grasp the nettle and deal with it, we will have special legislation on our books forever. One of the things we had agreed under the Good Friday Agreement was to seek to phase out the Special Criminal Court, and to phase out non-jury trials.

The Labour Party will be supporting this Bill because we buy into the argument that there is a need for it but we are seriously concerned that this substantial special powers legislation should be going on indefinitely. We hope that before we come to discuss it this time next year that we could have a full discussion of the Hederman report.

Aengus Ó Snodaigh

I wish to share my time with Deputy Finian McGrath.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Aengus Ó Snodaigh

Sinn Féin opposed the Offences against the State (Amendment) Act 1998 when it was originally introduced. When speaking against this law five years ago, my colleague Deputy Ó Caoláin observed that, "Repressive legislation has always helped to fuel the cycle of repression and resistance. . . and the political blunders and legal injustices of the past are now being repeated." This statement is just as true today.

Since 1939 the Offences against the State Acts have operated almost exclusively outside emergency situations, and have also been widely abused. The powers that the Acts give the Garda special branch have turned it into a political police force which has systematically harassed citizens engaged in open, legal and democratic political activity, and citizens with no political involvement of any kind. Section 18 of the Act requires the Minister to report on the operation, and this report is supposed to provide the House with the information on which to base a decision to renew this law.

I would be interested to know how many Deputies actually read that report. Anybody who had read it would have seen that it is totally deficient, it provides no evidence that the emergency provisions are necessary, or that the ordinary law was not sufficient for sound convictions. It also provides no evidence that the emergency measures in question have been effective. There is nothing in the Minister's report that assures the House that these provisions have not been abused to trawl for information or intelligence to intimidate political activists engaged in lawful activity. Quite the opposite. For example, it indicates that of 32 occasions in the last year where extended detention was ordered, only nine people were charged with an offence. There is no indication in the report of the rate of conviction. Furthermore, and without any reason, the Minister wants to reactivate sections 3, 4, 6, 8, 12 and 17, even though these provisions were never used in the period since the last renewal. Thus the Minister has manifestly failed to prove the necessity for reactivating these measures.

I call on Members of this House to at the very least reject the Minister's report as inadequate for the purpose of deciding to continue to suspend ordinary rights and freedoms. I call on Members, and in particular the Labour Party considering the statements of the previous speaker, to vote against the Government motion. This is not just a request to back Sinn Féin's call for repeal of the Offences against the State Acts in total but is based on support for the Good Friday Agreement which was endorsed by 94% of people in this State.

Mr. F. McGrath

Hear, hear.

Aengus Ó Snodaigh

In the Good Friday Agreement the Irish Government states that it will, "further strengthen the protection of human rights in this jurisdiction," and, "initiate a widespread review of the Offences against the State Acts 1939-1985 with a view to both reform and dispensing with those elements no longer required as circumstances permit."

Circumstances permit the repeal of the Offences against the State (Amendment) Act of 1998 and for these measures before the House to be let lapse. Most importantly, I urge Deputies to oppose the continuation of the emergency laws because by so doing they can send a message to those who oppose the Good Friday Agreement in this State and who insist that the Agreement has changed nothing. If the Deputies fail to accept my position and that of my party and vote to reinstate emergency powers and the draconian laws five years on, it will send a message to the opponents of the Good Friday Agreement reinforcing their belief that politics will not work to change things. In their view the Good Friday Agreement will not deliver the restoration of full human and civil rights and that is not the message that this House should be sending. I urge the Minister to let these sections lapse and repeal the legislation as soon as possible.

Mr. Cuffe

It is easy for those of us who in some way occupy the middle ground on issues such as this to argue very cogently and strongly for the continuance of the existing legislation under the Offences against the State Act to allow the Special Criminal Court to continue. However, neither I nor my party takes that view, and we therefore oppose the resolution before the House this evening.

It reminded me of a decision that had to be made some eight or ten years ago when there was a very public and strong debate about whether Sinn Féin should be allowed the use of the public rooms of the Mansion House in Dublin for its Ard-Fheis. Several of the issues that we are discussing are analogous to the kind of debate and discussion that went on then. The view against allowing that party to use the round room of the Mansion House was that it was a very public space in this city and that it would send out the wrong signal, particularly to Unionists, to allow Sinn Féin to use those public rooms. The decision was made at that time not to allow Sinn Féin to use them. Looking back, my view is that the decision was wrong. It was easy for those of us living a relatively comfortable existence to deny that group access to the public rooms of the city.

Similarly, today it would be very easy to use the example of Omagh and other atrocities to argue strongly for this legislation to continue. However, times have moved on, and, as the ICCL points out, the state of emergency is over. This review obviously has to happen at least annually, but for the Good Friday Agreement to prosper and to bring in the extreme elements on both sides of the violence that has torn apart this island over the last 30 years, we should drop the use of the Offences against the State Act in this instance. It will send out a strong message to everyone who has an interest in the resolution of the conflict.

I certainly believe that there are – and, possibly, will continue to be – extreme situations where one can provide strong arguments for the continuation of this law. However, on balance, the perpetuation or continued use of the Special Criminal Court is not the correct message to send out to the various groups and parties and everyone on this island. I understand the harsh circumstances and examples that have been quoted this evening. However, in this instance, it is important to move on publicly and meaningfully, sending out the right message to those watching. I therefore oppose the resolution before the House and the Green Party wishes to state publicly that it does not want to see the use of the Special Criminal Court continue. We believe that there is a human rights violation in non-jury trials, and we will therefore be opposing the resolution before the House.

Mr. F. McGrath

I am thankful for the opportunity to speak on this motion regarding the Offences against the State (Amendment) Act 1998, which states that sections 2 to 12 and 14 and 17 of the Act shall continue in operation for the period of 12 months, beginning on 30 June 2003. I disagree, and I am disappointed that, in the middle of a peace process and a scenario of conflict resolution, we are not promoting the civil liberties agenda or, more importantly, the sentiments of the Good Friday Agreement. We must move forward, and repressive legislation is looking backwards and undermines our democratic rights. It is also an attack on the whole peace process, which promised radical change and equality. We need reforms, and expanding emergency legislation and powers under the Offences against the State (Amendment) Act 1998 is against the ethos and vision of the Good Friday Agreement. I would even go further and call on the Government to repeal all the Offences against the State Acts of 1939 to 1998 as soon as possible.

Human rights and civil liberties must always be part of our civic society, and any time that we erode them we travel a dangerous and undemocratic path. It is time for cool and calm heads, and past examples of rushing through legislation have shown that major mistakes were made. We should avoid such situations. Let us look at those countries which have turned their backs on human rights or turned a blind eye to civil liberties. They prove that it leads to worse situations, with more violence and more conflict.

If Deputies do not believe me, they can ask such people as Nelson Mandela or the people of Colombia – or even of north Belfast. I talked to trade Unionists and lawyers while on a recent visit to Colombia, and the sheer scale of fear, human rights violations and breaches of international law was frightening. That is the type of society in which I would not like to live. If the Minister lived in Colombia, he would be perceived as being left of centre and a target. That is how bad the situation is, for I know that he is definitely not that.

Those points are all relevant when we are talking about this motion on the Offences against the State (Amendment) Act 1998. We must listen to lawyers, and particularly human rights groups, which always make themselves available to this House and have appeared many times before the Committee on Justice, Equality, Defence and Women's Rights. I commend their great work, but we also have a duty and responsibility as legislators to listen to them. We can all learn and then move forward when discussing legislation. Let me also pay tribute to such great people as Rosemary Nelson and Pat Finucane. They paid the ultimate price for human rights and civil liberties. We should never forget their integrity or bravery.

When discussing this motion, we should also examine and include in the debate the question of policing, and particularly of who is policing the police. We urgently need new mechanisms for police accountability. We must tackle police corruption and root out collusion. Simply playing football matches will not solve the serious issue of open, fair and honest policing, for repressive legislation never worked and never will. It always fails, and we should face up to that reality. We should always learn from our history. That of course does not mean that we do nothing, and I accept that. I reject that charge, which is, incidentally, regularly levelled at human rights groups. We all support the rule of law, but as citizens we demand fair policing, and above all fair legislation. That is not happening in tonight's debate, and I will not be supporting the motion.

We have a duty to listen to the victims of miscarriages of justice. I will quote one of them, Johnny Walker of the Birmingham Six. He recently stated regarding his case, "They believed the police and believed we were liars, and it took sixteen and a half years to prove them wrong." We should always listen to the victims of miscarriages of justice, for we can all learn as legislators. I therefore urge, if one wants to end the threat, that we develop the peace process, tackle injustice and make politics work. That is what the vast majority of people want.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I thank the Deputies for their contributions. I have listened carefully to what has been said. I thank Deputy Deasy for his support on this matter and Fine Gael for its responsible view. I also thank the Labour Party spokesman, Deputy Costello, for the views that he expressed, many of which I agree with.

However, it is simply not good enough to expose the throat of the Irish State and our democratic institutions to those who would quite willingly slit it. I regret that, in the course of this debate, there has been not even one word of condemnation of what happened in Derry the other day from all those opposed to this motion. Their priorities are different. People who put together two bombs in one weekend and prepare to let loose on the innocent people of Northern Ireland a vicious and calculated effort at mass murder must be opposed.

Debate adjourned.