Dáil Éireann debate -
Thursday, 16 Jun 2005

Vol. 604 No. 2

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

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

I move:

That Dáil Éireann resolves that sections 2 to 12, 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 2005.

The resolution under consideration 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. Were the House not to so resolve today, these sections would lapse.

In commencing the debate on behalf of my colleague, the Minister for Justice, Equality and Law Reform, Deputies will recall that the 1998 legislation was enacted after the Omagh bombing August 1998, which claimed the lives of 29 innocent persons and injured more than 200 others.

That appalling act of barbarism continues to reverberate down through the years, and I am pleased to note that charges have recently been brought against a person in Northern Ireland as regards these murders. The investigation into this atrocity continues on both sides of the Border, and there continues to be excellent co-operation between the Garda authorities and the PSNI in this regard.

In recognition of the exceptional circumstances surrounding the enactment of the 1998 Act, there was general agreement that the legislation should be regularly revisited by the Oireachtas. The purpose of the recurring Oireachtas scrutiny is to ascertain whether the circumstances then prevailing in 1998 justify the continuance in force of the legislation's provisions.

Accordingly, by virtue of resolutions passed by both Houses of the Oireachtas on 15-16 June 2004, sections 2 to 12, inclusive, 14 and 17 of the 1998 Act will cease to operate on and from 30 June next. That is, of course, unless a further resolution is passed by each House authorising the sections to continue to operate for a period not exceeding 12 months. In addition, there is a requirement in the 1998 Act 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 last Monday by the Minister for Justice, Equality and Law Reform. The report was submitted in accordance with the statutory requirements and the 21-day period referred to in the relevant statute is the timeframe after which the report must be completed.

Mr. Costello

It was not available to Members in the Library.

Mr. B. Lenihan

Indeed, because there is no obligation on us to do that, although I do appreciate——

Mr. Costello

Who is it for, basically, if Members do not get a copy?

Mr. B. Lenihan

The 1998 Act requires not that the report be laid 21 days before the moving of the resolution, but rather that the reporting period of the report ends not later than 21 days before the moving of the resolution. It is simply on that point of procedure that I wanted to make clear to the Deputy that the resolution is not——

Mr. Costello

Talk about a technicality.

Mr. B. Lenihan

The resolution is not in breach. I appreciate the Deputy's point about immediate adequate notice of the report and it is a fair one. However, in strict legislative terms, the statutory requirement is that the reporting period of the report ends not later than 21 days before the moving of the resolution. While the Deputy may have made the same point last year, at least this year the matter has been clarified for him to the effect that there is no strict legal obligation in that connection.

Mr. Costello

It appeared yesterday in the Library.

Mr. B. Lenihan

The report was laid before this House last Monday by the Minister for Justice, Equality and Law Reform. The conclusion of the report is that the relevant sections of the 1998 Act should remain in force for a further 12 months. In the first instance, this is the firm view of the Garda Síochána, which considers the Act to be a vital piece of legislation in the continuing fight against terrorism and insists that it is of paramount importance that the relevant provisions remain in operation. The harsh reality is that, despite the democratically expressed wishes of the people north and south of the Border, those responsible for the Omagh bombing continue to pursue, plan and promote a campaign of violence. In this regard, it must be remembered that there have been a number of near misses involving the Real IRA and the Continuity IRA since Omagh, and it is only through dint of excellent police work by the Garda and the PSNI that further tragedy on a massive scale has been averted.

The new and more sinister forms of international terrorism, and particularly Islamist terrorism, have been brought home to Europe with the Madrid bombings of 11 March 2004, involving the murder of 200 innocent commuters. The Criminal Justice (Terrorist Offences) Act 2005 was enacted last March to deal with this international terrorist threat by enabling the application of the Offences against the State Acts against international terrorist groups and individuals. Again, it is important that this legislation should be maintained in its efficacy.

I want to turn to the individual sections of the 1998 Act that this House is being invited to continue in force for a further 12 months. First, dealing with those sections of the 1998 Act that were used since the end of the last reporting period, that is, from 1 June 2004 to 31 May 2005, the following is the case.

Section 2 was used on 30 occasions. This section provides that where, in any proceedings for membership of an unlawful organisation, the accused failed to answer or gave false or misleading answers to any questions, then the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. However, a person cannot be convicted of the offence solely on an inference drawn from such a failure. That is an evidential principle and it was relied upon on 30 occasions.

Section 3 was used on one occasion. It provides that, in proceedings for membership of an unlawful organisation, the accused must give notification of an intention to call a person to give evidence on his behalf, unless the court permits otherwise. Section 4 was also used on one occasion. This section amends section 3 of the Offences against the State Act 1972 in such a way as to expand the definition of "conduct" that can be considered as evidence of membership of an unlawful organisation. Specifically, "conduct" can now include matters such as "movements, actions, activities, or associations on the part of the accused". This change 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 5 was used on 20 occasions. This section deals with 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 defence that he could reasonably have been expected to mention during questioning or on being charged but did not do so. As with section 2, however, a person cannot be convicted of the offence solely on an inference drawn from such a failure.

Section 7 was used twice. This section makes 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.

Section 9 was used on 69 occasions. This section makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission by another person of a serious offence or securing the apprehension, prosecution or conviction of another person for such an offence.

Section 10 was used on five occasions and extends the maximum period of detention permitted under section 30 of the Offences against the State Act 1939, as amended, from 48 hours to 72 hours, but only on the express authorisation of a judge of the District Court. In this regard, the judge must be satisfied, on the application of a Garda officer 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 have made submissions on his behalf.

In the reporting period in question an extension was applied for in five cases and all applications were granted. Charges resulted in four of these cases, with the fifth resulting in a file being sent to the Director of Public Prosecutions.

Section 11 which was used on two occasions empowers a judge of the District Court to permit the re-arrest and detention of a person in respect of an offence for which he was previously detained under section 30 of the 1939 Act, as amended, but released without charge. This further period must not exceed 24 hours and can only be authorised in circumstances in which the 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 the person in question's suspected participation in the offence.

Section 14 was used on 99 occasions. The effect of this section is to make the new offences created under sections 6 to 9, inclusive, and 12 of the 1998 Act scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing these offences are liable to arrest under section 30 of the 1939 Act.

I turn now to those sections of the 1998 Act which were not used in the period under report, namely, sections 6, 8, 12 and 17. Section 6 establishes 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. Section 8 makes it an offence to collect, record or possess information which is likely to be useful to members of an unlawful organisation in the commission of serious offences. Section 12 makes 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 providing 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. The information on the use made of the provisions of the 1998 Act is based on data received from the Garda authorities and is contained in the report on the Act laid before this House.

I turn to the report of the Hederman committee which was established to review the Offences against the State Acts 1939 to 1998. The purpose of its inquiry was so that the Government would implement its obligation under the Good Friday Agreement to have a review of the offences against the State legislation and the Government has discharged its obligations in that respect. Of those sections of the 1998 Act on which specific recommendations were made, it should be noted that the Hederman committee unanimously recommended retention of sections 6, 7 and 12. Moreover, a majority recommended the retention of sections 2, 5 and 9, while the committee was evenly divided in its opinion as to whether section 10 should be retained.

A majority recommended the repeal of section 8 of the 1998 Act. The committee unanimously recommended the repeal of section 3(1)(b)(ii) of the 1972 Act, as amended by section 4 of the 1998 Act, but the amendment in question was simply to the wording. The committee also made general recommendations relating to the scheduling of offences which would have implications for section 14 of the 1998 Act.

Accordingly, of the 13 sections of the 1998 Act being considered for renewal by the House, the Hederman committee expressed a substantive opinion on eight of them. Of these eight, the committee recommended the retention of seven, either unanimously, by majority or, in one case, on an even split. Accordingly, although a full consideration of the entire set of recommendations of the Hederman committee remains ongoing, it is clear that little or no change to the provisions of the 1998 Act would, in any case, be warranted. The analysis of the provisions proofed by the Hederman committee found that no changes of substance were required.

In any event, over the past year the House will be aware that the Minister for Justice, Equality and Law Reform, Deputy McDowell, has been busily engaged in bringing forward an extensive programme of legislative reform. In the counter-terrorism area, efforts in the past year were focused on enacting the Criminal Justice (Terrorist Offences) Act 2005, which occurred in March last. Now that the Act is out of the way, a fuller consideration of the entirety of the recommendations of the Hederman committee can proceed and the Minister intends to bring further proposals to Government in due course.

The implementation of the Good Friday Agreement remains an ongoing challenge. Recent events in Northern Ireland and this jurisdiction point to the fact that paramilitary organisations are involved in activities of a criminal nature. One cannot ignore the simple fact that there are paramilitary organisations committed to the destruction of the Agreement and all other initiatives designed to bring lasting peace to the people of the island. As long as there are organisations dedicated to frustrating the will of the people through violence and mayhem, robust counter-measures must be available to the State.

Although the efforts of paramilitary organisations to wreak death, destruction and destabilisation have often been thwarted, we cannot allow the proven successes of the two police services to lull us into a false sense of security about their intentions or capabilities. Given half a chance, both the Real IRA and the Continuity IRA would gladly bequeath to us any number of terrorist atrocities.

While the Offences against the State (Amendment) Act 1998 is only one element of the State's ongoing response to this threat, to do away with it now would be to weaken, in an irresponsible manner, the State's bulwark against terror. I commend the resolution to the House.

Mr. G. Murphy

The insertion of a built in review clause in all emergency legislation is good legislative practice. Thankfully, in 1998 our legislators were wise enough to include such a clause in the Offences against the State (Amendment) Act. The clause reminds us, on an annual basis, that we are not yet living in a truly democratic society in which civil liberties, human rights and the rule of law are respected in accordance with international standards.

We have introduced a plethora of emergency Bills over the years, all of which were intended at the time to be temporary. Unfortunately, the unwillingness of subversive organisations to recognise the democratic wishes of the overwhelming majority of people on this island has resulted in many laws intended to cater temporarily for an emergency becoming part and parcel of our corpus of legislation. Many emergency laws, including that covered by the resolution, are still necessary.

Most emergency provisions were originally introduced because of the murderous activities of the Provisional IRA over many years. The treacherous, treasonous members of this organisation still claim in their puny minds that the IRA is the real Government of the State. Despite the fact that the whole country, in a referendum, clearly and unequivocally sent it a message to disarm and go away, it persists in holding up the peace process and, like gangsters, holding the nation to ransom.

Although a ceasefire has been in place for seven years, the most recent report of the Independent Monitoring Commission states clearly that the IRA is still involved in criminal activity, controls terrorist-cum-criminal gangs and refuses to decommission its arms. Its political wing, Sinn Féin, continually blames everyone else for not fulfilling their commitments under the peace process, yet an organisation which should not have existed in a democratic society in the first place continues to refuse to disband and decommission its arms.

Before Christmas last year, it appeared Sinn Féin and the IRA had won the jackpot. Every conceivable concession was about to be made to them to try to achieve peace but, again, despite their significant successes at the negotiating table considering the tiny number of people in a largely democratic society who supported them at the ballot box, they could not resist continued involvement in all kinds of criminality, which once again pushed the peace process into crisis.

When this resolution was introduced in the House last year, Sinn Féin Members stated that the purpose of the offences against the State legislation is to dealing with an emergency, of which there was none at that time. I presume the House will hear more of the same today.

Aengus Ó Snodaigh

The Deputy is correct.

Mr. G. Murphy

There is an emergency. An active organisation, a so-called army whose objectives hit at the core of our democracy, which challenges our Constitution, breaks the laws legitimately enacted by a democratically elected Parliament and scornfully ignores the democratic will of the vast majority of people on this island, continues to operate in this State. In addition, dissident republican groups are prepared to bomb and kill innocent people to further their objectives. Against this background, we are told there is no emergency. This island has been in a state of emergency since the foundation of the State because a minority has refused to accept the will of the majority or democracy.

Aengus Ó Snodaigh

Like Fine Gael or Cumann na nGaedhael.

Mr. G. Murphy

The only reason people continue to support this repressive legislation, which undoubtedly infringes on our civil liberties and freedoms, is that the overwhelming majority want to uphold as much of their democracy and freedom as possible. They are prepared to sacrifice some of their rights and civil liberties so the State can use these laws to protect that democracy from those few who, with the bomb and the bullet, would take it away from them.

It is not repressive governments or those in opposition who support this legislation imposing these unwelcome and regressive laws on Irish citizens. No democratic government or party that legitimately faces the electorate every five years could or would justify the continuation of these laws without the knowledge that the vast majority of the people support the underlying objective of protecting democracy and the lives and well-being of citizens.

These laws are dangerous and there are risks involved, such as abuse by the gardaí, the Government may not repeal them at the appropriate time or the laws will be used for purposes other than those intended. Recent events and debates in this House about the Morris tribunal, the Garda Síochána Bill and the Criminal Justice Bill must be measured against this repressive legislation which we are forced to maintain and, from time to time, to add to because of the continuing activity of the Provisional IRA, the Real IRA, the Continuity IRA and any other jumped up terrorist organisation that tries to usurp the authority of the State.

The legislation we are dealing with today was introduced after the Omagh bombing that brutally took the lives of 29 innocent people and injured more than 200 others. It was a brutal and cowardly attack, a terrible atrocity that reverberated throughout the island and shocked people everywhere. We had become used to nightly news bulletins about bombings in Northern Ireland and England but Omagh seemed different, we seemed to be entering an even more brutal phase. One of the women killed was born less than four miles from my home town in north Cork. Her sister and her had married in Omagh and on that fateful day she and her daughter, who was pregnant with twins, were killed. Many of us travelled from Cork to the funeral in utter shock and dismay that this could happen to one of our own.

Recently at hearings of the sub-committee on the Barron report, we heard from victims and relatives of victims of the Dublin and Monaghan bombings. The pain and distress these people still feel is unimaginable. We are still told, however, that there is no emergency and no need for emergency legislation. This is despite the fact that five members of the Real IRA were sentenced to jail on Tuesday. The leader of the Real IRA in Munster was jailed for five years, his second-in-command for four years and three other members of an active service unit were given sentences of three and four years. One of these men is a former IRA man who was released from a ten-year jail sentence under the terms of the Good Friday Agreement, another was the officer commanding the Real IRA in Munster and another was in charge of operational matters in Cork and Limerick. The other two were part of an active service unit in Cork.

The one regret we should have at this stage is that this legislation has not worked more effectively. The Garda report on the legislation shows, however, that most sections that we are renewing had some effect in the last year. A total of 376 people were arrested and 61 convicted in court, with 102 people still awaiting trial. Considering the murder and mayhem caused by a small active service unit in Omagh, by any measure, these provisions will prevent more atrocities.

As a democratic society we still have a long way to go. Human rights and civil liberties are a fundamental building block in any real democracy. For years subversive organisations have prevented the establishment of a truly just society where the laws of the land comply with international standards and are implemented in a totally fair and transparent manner. This can only happen when citizens no longer fear that the authority of their elected Parliament and Constitution is no longer threatened by terrorist organisations portraying themselves as republicans. Fine Gael, in these circumstances, supports the motion.

Mr. Crawford

I listened to my constituency colleague, Deputy Ó Caoláin, this morning say that this legislation is unnecessary and I would agree with him only if the problem went away, but unfortunately it has not gone away.

I welcome the fact that we discuss this matter on a yearly basis. We introduced emergency agriculture legislation during the foot and mouth crisis and were given an absolute assurance that it would be discussed after 12 months, but we still have not had an opportunity to debate it in the House. At least this legislation is discussed on an annual basis.

I represent a constituency that has more to gain or lose from the peace process than any other in this country. County Monaghan has the longest border with Northern Ireland and we all want to see my area treated the same as any other part of the country as far as job creation and a normal society are concerned. Thankfully, since the ceasefire that has largely been the case.

Going back to the Omagh bombing, however, those of us who attended the funerals and deal with the families on an ongoing basis are aware of the trauma they are going through. I am glad at least one person is being investigated for that tragic affair. Many other people, however, know who took part in it. It concerns me that people at the highest level know who took part in the bombing but only one person is behind bars.

The recent murder of Robert McCartney raises many questions, as do the criminal and paramilitary activities we have seen around the country. As Deputy Gerard Murphy said, many people out there are still active and, thank God, some of them are being put behind bars, as is only right.

I welcome the opportunity to discuss this legislation but I wish it did not have to be there. Under the Good Friday Agreement that we all supported, some issues were contentious. To me, one of the most contentious issues was that all prisoners, from both sides, would be released within two years — it happened within a number of months. The other contentious issue was decommissioning. That has been made a mockery of and while some small effort was made to deal with it, the reality is that it has not happened. It is important those areas are dealt with.

The decommissioning of mindsets is even more important. Coming up to an election, we heard the leader of Sinn Féin calling on the IRA to consider giving up arms. After 8 December we all understood that was part of the agreement but we are now told it will hopefully be decided before the end of the summer. This issue was part and parcel of the Good Friday Agreement. If we want peace to last, we must see real progress in this area. I know it is not easy. I know it is hard to change people who have adopted a mindset for years and believe theirs is the correct way. I did not realise how serious this was until I visited some European countries that recorded what happened in the two world wars. I saw at first hand what human beings did to each other. I saw how they can build railroads and furnaces to kill their fellow human beings. When one sees this, it helps one to understand the mindset with regard to this whole matter.

There is so much to be gained from a full peace process. Recently I visited Clones Town Council with Oireachtas colleagues where one of the main issues for discussion was the Ulster Canal, a true cross-Border project that unites everyone from both sides of the Border. They want the project to go ahead, yet, as part and parcel of the Good Friday Agreement, this matter must be dealt with under the Northern Ireland Assembly and the cross-Border bodies. As a result of the suspension, the matter cannot be resolved. I have asked the relevant Minister to see if there is a way around this but to no avail. It is proof of what is being held back because of the lack of finality from the Provisional IRA, the Real IRA and the loyalist organisations. I make no apologies for naming them in the House. We cannot have one without the other. We must have complete decommissioning if this is to work.

The last British general election threw up many problems for us. It has forced the electorate into two extreme camps. Unfortunately, the middle ground of those who led the way and fully supported the Good Friday Agreement, has lost out. We are now in a new situation. Time is limited and it is not good to see people going to the extremes. The only way it can be sorted is that those with authority use it to end the violence, the criminality and disband the IRA, the UVF and all the different groups that have led this country into trouble.

Mr. Costello

I welcome the opportunity to discuss the motion on the renewal of the sections of the Offences against the State (Amendment) Act 1998. We all remember the tragic circumstances under which this amending legislation was introduced in September 1998. We will recall how ironic it was that we had signed up to the Good Friday Agreement in Easter of the same year only for it to be shattered by the worst single atrocity of the 30 years of the Troubles. No one expected the shocking and horrific event at Omagh. In that context, there was unanimity when this legislation was presented to strengthen the powers of the Garda to deal with the perpetrators of the atrocity. It was an amendment to the Offences against the State Act. People believed that if there was anything necessary to bring those perpetrators to justice, every citizen would gladly provide the mechanism and support for it.

There were concerns about emergency legislation becoming permanent, a feature of such legislation in the past. It was for that reason the Houses agreed an annual review mechanism would be built into the legislation. It was hoped that once the perpetrators were brought to justice, this legislation would no longer be on the Statute Book. Last year, only one person was convicted of a related offence to the Omagh bombing, the first conviction since the legislation was passed in 1998. The Minister of State did not refer to it in his speech. I would like to know if anyone else has been put behind bars under the terms of the legislation since this time last year.

We want a full report on the operation of the legislation. On today's Order of Business, I raised the issue of whether Members are entitled to an earlier production of the report on the previous year's implementation of the legislation. I believe we are. As the Minister of State alluded, I raised this last year when it was impossible to get a copy of the report the night before the debate on the legislation. If I had not gone searching yesterday for the report I would not have it. I must make a correction to what I said on this morning's Order of Business. I misconstrued the date 15 June for 13 June. It was in the Library on 13 June. However, it took quite some time for the Library to find it for me.

Section 18 states:

Each of the following sections, namely sections 2 to 12 and 14 and 17 shall, subject to subsection (2), cease to be in operation on and from the 30th day of June, 2000, unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation.

The House will sit past 30 June and on 1 July. There is ample time over the next several weeks to give us an opportunity to digest the report. There is no reason we should rush this motion in the same week the legislation has been reported on. Section 18(3) states:

Before a resolution under this section in relation to a section specified in subsection (1) is passed by either House of the Oireachtas, the Minister for Justice, Equality and Law Reform shall prepare a report, and shall cause a copy of it to be laid before that House, of the operation of the section during the period beginning on the passing of this Act or, as may be appropriate, the date of the latest previous report under this subsection in relation to that section [typical legalese] and ending not later than 21 days before the date of the moving of the resolution in that House.

The Minister must prepare a report, then lay it before the House not later than 21 days before moving the resolution. The Minister of State is arguing on a technicality that once the report is prepared 21 days before its renewal, the functions have been fulfilled. It is clear from the legislation that the report must be prepared and laid before the House not later than 21 days before moving the resolution. This has not been adhered to either in the spirit or the technicality of the law. We built in this annual review mechanism for the purpose of scrutinising the operation of the legislation and to see whether it deserved be renewed.

That spirit of the law will be lost if Members receive the report and have the debate in the same week. Last year, we received the report the day before the debate at the very earliest. Unless the spirit of the legislation is upheld by providing the report for Members much earlier before the debate is held, it is impossible to scrutinise, conduct proper research and prepare for it. Once again, I ask the Minister to provide at least two weeks between the time in which the report is placed in the Library and the debate. That is the least we can expect.

The legislation came about because of the tragic events in Omagh in 1998. The amendments to the Offences against the State Acts 1939 to 1972 include changes regarding the rules of evidence, membership of an unlawful organisation, other offences under the Offences against the State Act and scheduled offences. Some new substantive offences have also been included as well as the extension of the maximum period of detention permitted under section 30 of the 1939 Act.

This is part of a schedule of emergency legislation tied up with special courts which has been in existence since 1939. Interestingly, one of the provisions of the Good Friday Agreement was to examine all emergency legislation to see if it could be stood down. The intention was that, given the ceasefire and the Good Friday Agreement, the legislation would be reviewed on both sides of the Border. Such a review of the terrorist legislation took place in Northern Ireland, where the Diplock courts and the provisions of the Prevention of Terrorism Act relating to Northern Ireland were stood down. The legislation there has been effectively normalised and regularised.

One should remember that the Omagh attack took place in Northern Ireland. That horrific act was not perpetrated in this jurisdiction but in Northern Ireland, and the British Government did not see fit to reintroduce a series of emergency powers to deal with the situation, nor has it done since. It has accepted the provisions and thrust of the Good Friday Agreement to dismantle, in so far as possible, those emergency provisions.

We have done nothing of the sort. Our discussion should be broadened to examine how the emergency legislation came into existence. In 1939, the Emergency was declared and the rainbow Government lifted it in 1995. Despite that, the offences against the State legislation from 1939 still remains in existence. It was retained because of the supposed dangers of jury intimidation or jury bias. In my experience, we do not have a problem with jury intimidation but with witness intimidation and it does not pertain to special legislation or political offences alone. It also applies to normal criminal offences. That is why we must examine the paraphernalia of legislation which will determine our criminal justice system. Members must examine whether the arguments for the introduction of the original Offences Against the State Act and for Dessie O'Malley's establishment of the Special Criminal Courts in 1972 still hold good. Even in 1972, Mr. O'Malley stated that he envisaged that the Special Criminal Courts would be temporary. There was no acceptance that they would continue on a long-term basis.

Not only has the Minister for Justice, Equality and Law Reform accepted the Special Criminal Court, but this year he took a further step by introducing a second Special Criminal Court. He introduced it in the context of the terrorist legislation which was initially introduced in 2002 and was passed in 2005 as the Criminal Justice (Terrorist Offences) Act. I am still unsure what was his real justification. I asked him whether there was a backlog of cases to be dealt with, but he was unable to clarify that. He introduced a second Special Criminal Court for no apparent reason that he could justify. Perhaps he expected an outbreak of paramilitary activity on the part of the Continuity IRA or the Real IRA which would have to be dealt with. Is this second Special Criminal Court operational? What has been done about it? Was it established to deal with a backlog of cases that were not dealt with in a timely manner and are sitting there?

Mr. B. Lenihan

The Deputy is answering his own questions.

Mr. Costello

If that is the case, will the Minister give the House an indication of the breakdown between scheduled and non-scheduled offences before the Special Criminal Court? My information is that the Special Criminal Court has moved from its proper jurisdiction, away from scheduled political-type offences, towards normal, criminal offences that should normally be heard before jury courts. However, it is easier to use the Special Criminal Court, and because the Director of Public Prosecutions has sole discretion to refer non-scheduled offences to it, he takes the easy option. As Members are aware, the DPP is not obliged to explain his actions. It is strange.

I do not have time to make all my intended points. Almost seven years have passed since this legislation was introduced. Last year, the Minister indicated — I notice there is a reference to this point in the legislation this year — that once the Criminal Justice (Terrorist Offences) Act 2005 had been passed, he would be in a position to consider the legislation pertaining to the special courts. He intended to bring proposals before the Government last year. Will a proper review of the legislation take place as proposed under the Good Friday Agreement? Will proposals be brought to the Government now that the Criminal Justice (Terrorist Offences) Act is in place to deal with international terrorism? Next time around, can Members expect a different motion from the Government on this issue?

Mr. Cuffe

I wish to share time with Deputies Finian McGrath, Connolly, Ó Snodaigh and Ó Caoláin.

In many respects, this is as close as it gets to the dusty days of mid-summer in this Chamber. I am worried that a mere half dozen Deputies are present when, in effect, Members are nodding through such legislation for the sixth time in as many years. I am worried about the threat to human rights raised by continuing to permit this legislation to remain on the Statute Book. I am worried the debate is, at best, cursory. I am also worried about the Minister for Justice, Equality and Law Reform——

Mr. Costello

We are all worried about the Minister for Justice, Equality and Law Reform.

Mr. Cuffe

——being unable to be present for what is, in essence, powerful legislation.

Mr. B. Lenihan

He is attending——

Mr. Cuffe

I understand that but the Government has discretion in regard to ordering Dáil business. I would have thought business as weighty as this should not simply go through without the Minister being present.

As Deputy Costello pointed out, there are real concerns, including concerns that perhaps the remit of the Special Criminal Court is being extended — certainly the types of cases it is taking are extending into a much wider realm. There is a deep-seated concern, to which Deputy Costello also alluded, that we have brought in very powerful legislation in other areas. I point to the legislation on the retention of data introduced by the Minister last year, which I opposed. It is all powerful and has been used to great effect in several high profile cases. The type of legislation in place is very powerful, so why do we need both the belt and braces in this regard? Why do we need to simultaneously strengthen the terrorism legislation on the Statute Book and keep the Special Criminal Court?

I do not believe the case has been well made by the Minister of State or by the Minister for this plethora of legislation and regulation on the Statute Book seven years after the Omagh bombing. While I readily concede the Omagh bombing was an atrocity, there are far more pressing matters on which to bring in stronger legislation, whether to tackle the problem of the hundreds of people killed on our roads each year or other areas. I do not see the need to keep such strong powers in the remit of the Minister for Justice, Equality and Law Reform at this time, particularly when there are deep concerns about the conduct of gardaí in recent years not only as a result the Morris tribunal but also as a result of the false arrest of individuals going about their business and the violence of the gardaí at the May Day protest a couple of years ago. I am not convinced at this time, when confidence in the gardaí is at a relatively low ebb, that we should continue to give them enhanced powers. I oppose the proposal to renew the legislation at this point. Seven years have passed and it is time to move forward by dropping this draconian legislation.

Caoimhghín Ó Caoláin

Every year Deputies have the opportunity to vote on whether to continue to use repressive legislation in this State. That opportunity presents again despite the past decade of the peace process, the IRA ceasefire and the Good Friday Agreement. Every year the Minister publishes a slim report at the last minute, which no one has a chance to read, as has been stated here. Despite this, every year this House rubber-stamps the continuing operation of these laws, which suspend not only the ordinary rules of evidence but fundamental rights, including the right to silence.

Every year my colleague, Deputy Ó Snodaigh or I argue the Government's obligations regarding progressive security normalisation under the Good Friday Agreement. Every year we ask what the Minister for Justice, Equality and Law Reform is planning to do with the Hederman recommendations on which he has been sitting since 2002. Every year only a few join the Sinn Féin Deputies in speaking out against this coercion of democracy and human rights, and I commend all those who do.

Those in what I view as the political establishment are still locked in denial about the fact that more than 60 years of emergency law has only helped perpetuate the conflict on and between these islands. It is a contributory factor. Equally, seven years of the 1998 amendment Act powers have not stopped dissident republicans. The only thing that can have this effect — I ask the Minister of State to note it — is to make democracy really and truly work. This means making the peace process work, demonstrating that the Good Friday Agreement is not dead, as the DUP leader claims, and proving that profound political and social change can be achieved by other means. That is the commitment we have made and the challenge Sinn Féin has embraced.

Every year when this law is renewed, those Deputies who support it take it on faith that the Garda will not abuse the powers it confers. They take it on faith that no garda will fabricate the evidence used to convict in the Special Criminal Court. I put it to Deputies that the findings of the Morris tribunal to date must force them to re-examine that blind faith on this occasion. This Government is asking Deputies, even in the wake of the Morris tribunal reports, to renew legislation that will continue to allow people to be convicted on the word of a garda. As supporters of this motion, they must ask themselves, what if they are complicit in perpetuating miscarriages of justice by the suspension of the ordinary rules of evidence in order to secure convictions, especially when there continues to be no effective oversight of the Garda and knowing this situation will continue even after the Minister for Justice, Equality and Law Reform's fundamentally flawed Garda legislation passes. I put it to Deputies and the Minister of State that the renewal of this Offences Against the State Act is not at all in the interests of democracy and justice.

Aengus Ó Snodaigh

History will judge this House harshly for failing to assert that the key to security is human rights and not human rights abuses. Year in, year out Deputies vote for the renewal of this legislation which is the envy of repressive regimes around the world. Only a few people in this House have the moral courage to speak out against it and fewer still have the guts to back that up when there is a vote. Surely the Morris tribunal report, which will be briefly discussed tomorrow, and particularly the revelations in the first report, the McGlinchey module, must give them pause for thought that people can be convicted in the Special Criminal Court under special laws on the word of the Garda special branch man.

History will judge harshly all those Deputies with their heads in the sand about the abuses perpetrated by the State against citizens on their watch. They are so consumed and blinded by anti-republicans, they are failing in their duty to protect the public interest. It is incumbent on them to consider their responsibility carefully and to consider what we now know. We know the gardaí fabricated evidence of arms finds in Donegal, that the Murphy conviction in the Omagh case was overturned because of Garda fabrication, that the gardaí planted a gun on James Sheehan in north Kerry and that the father of four, Niall Binead, had no presumption of innocence as he was tried by the media and convicted of membership of an illegal organisation on the basis of exercising his right to silence. Despite media misrepresentation, he was not convicted of spying allegations. He was not convicted of unlawful collection of information under section 8. In fact, according to the Minister, no one has been charged under section 8. Does this not raise questions for Deputies about the conviction? Earlier this week, five Limerick men faced up to five years in prison on the word of a senior garda. Most of the evidence against them seems to be that they laid a wreath.

Can Deputies be confident that the powers they are about to reconfirm have not been abused in nearly 700 arrests in the past year alone? Are they absolutely certain about the soundness of each of the 60 plus convictions? Do they firmly believe all the 102 awaiting trial will receive a fair one? If not, I ask them to vote against this motion.

Mr. F. McGrath

I am glad of the opportunity to discuss this very important motion and to put on record that I will strongly oppose it. It is a sad day for democracy, human rights and wider society that at this historic and important time when we are making an effort to come to the end of a long conflict on the island and conflict resolution is in process there are people who want to introduce draconian legislation. That is illogical and does not make sense. It is a disgrace.

For any citizen and democrat, repressive legislation is not the way forward. If we are serious about protecting human and civil rights and if we are lecturing other nations on this issue, everybody should stand up and be counted and vote against this motion and this legislation.

We have read in recent days the scandal of the Morris tribunal, corruption among senior gardaí, bad leadership, disastrous management and blatant scandal within the force. This is not acceptable. Yet the Government proposes to introduce more repressive legislation.

It might not be trendy or fashionable to do this and I accept there is a strong law and order element in this House, but I challenge the Government on this issue. It should always be vigilant in regard to civil liberties and human rights. There have been miscarriage of justice cases in the past because of repressive legislation. There were the Birmingham Six and the Guildford Four cases. In America there is the Miami Five case where five Cubans are in jail because they tried to stop violence being perpetrated against their country. I urge caution in introducing legislation such as this that will damage the integrity of our justice system.

There have also been many other cases such as the McBrearty case. I have also dealt with the Danny Doherty case and recently in my constituency the Peter Preston case. These issues are all very relevant to this debate. A number of Deputies referred to the case of James Sheehan from West Commons, Ardfert and the incident that happened on 17 August 1989. There are serious questions to be asked about the incident where it is alleged that a gun had been found in Mr. Sheehan's car and he was arrested under section 30 of the Offences against the State Act 1939. I understand this file was sent to the Director of Public Prosecutions but subsequently no prosecution ensued. There is also a major debate about the question of the missing gun. What happened to it and why and when was it destroyed? It would be fairly obvious to any objective person who read about this case that it is a disgrace that this person was set up in this way and that people got away with that.

It is also a disgrace that the Minister for Justice, Equality and Law Reform hides his head in the sand when it comes to dealing with these issues. It is all very well to go to parliamentary party meetings and have a major row about café bars but why is he not dealing with the serious issues of miscarriages of justice, injustice in our justice system and corruption among members of senior management of the Garda? These issues must be dealt with.

I challenge the Minister of State and the Government in this regard. If Members are serious about democracy, human rights and ensuring respect for the State and its citizens, they must come out strongly against the Offences against the State Act as there have been incidents where this legislation has been damning.

History has proved that repressive legislation does not work. Despite many who are cynical about this issue, it does not work. It makes the position worse. If we are serious about ending conflict and political violence, the way forward is political dialogue and inclusive negotiations. We should get on with that. That strengthens democracy. When we start using the law to back up a State and sections of it, it is repressive law and it does not work. Surely we have learnt from the history of what happened in the Six Counties over the past 30 years. Surely we have learnt from incidents of human rights abuses in Britain to which I referred. Members should be cautious of political parties and the political establishment supporting this legislation. I urge Members to reject it.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

I thank the various Members who contributed to this debate. In an ideal world we would not need offences against the State legislation but the experience of this State since 1937 has been that we need such legislation. Far from being a historical failure, it was a historical success in preserving our neutrality from 1939 to 1945 when some organisations were determined to ally themselves with the Axis powers and undermine it. It was a success in the 1950s when an ill-judged Border campaign was conducted. It also assisted this State throughout the terrible atrocities that took place in Northern Ireland from 1969 onwards. Therefore, to suggest the legislation is a historical failure is a mistake.

What we are discussing is the extension of legislation which was enacted by this House in 1998 on foot of the Omagh bombing. It is important to keep that perspective in mind in regard to the motion. Were we not to agree this motion today, as advocated by some Deputies, in any court proceedings that take place in the years ahead where an adjudication is to take place on persons complicity or involvement in the Omagh bombing, the legislation expressly providing for that could not be used against them. That is the practical reality facing us in this House today. Were we not to enact this resolution, we would be saying that the various inferences which the courts can draw in regard to suspects brought or persons charged before them in relation to that particular matter could not be drawn by them. In other words, we would be saying that the considered view of the Oireachtas in 1998 as to how persons should be brought to justice in regard to this episode should no longer apply to individual perpetrators of those terrible offences. I do not believe that as a proposition is stateable. Naturally, the debate has ranged far and wide over wider topics. That I understand and I will deal with many of the questions raised, but on that simple ground alone we must extend this resolution.

Aengus Ó Snodaigh

There are the normal rules of evidence.

Mr. B. Lenihan

There is nothing unusual in the rules of evidence prescribed in the 1998 legislation. Very free use of the adjectives "repressive" and "emergency" was made in the course of this debate.

Aengus Ó Snodaigh

The legislation is being changed.

Mr. B. Lenihan

The Offences against the State Act is not emergency legislation but an ordinary part of the legislation of the State.

Mr. Costello

Perhaps sections 1 to 4 of the Offences against the State Act are not emergency legislation but section 5 of that Act definitely is such.

Mr. B. Lenihan

Emergency legislation requires a proclamation under Article 28 of the Constitution. The legislation with which we are dealing is part of the ordinary legislation of the State.

Aengus Ó Snodaigh

It is not emergency but repressive legislation.

Mr. B. Lenihan

I want to go through the individual contributions. I thank Deputies Gerard Murphy and Crawford for their support. The Government, and I am sure all Deputies, share their concern that the Good Friday Agreement should be implemented in all its aspects.

Deputy Costello raised a technical issue of the review provision in this legislation.

Mr. Costello

I hope the Minister of State will not give me a technical answer.

Mr. B. Lenihan

The review provision is contained in section 18.

Mr. Costello

If the Minister of State cannot agree to a period of 21 days, he should agree at least to a period of 14 days.

Mr. B. Lenihan

I want to accommodate the Deputy but I disagree with his interpretation of the section. The relevant paper submitted by the Department of Justice, Equality and Law Reform should be prepared in reasonable time for the debate in the House. I accept the Deputy's point in that regard. I have asked the officers of the Department to ensure that reasonable notice of this document should be given in good time and in advance of any parliamentary discussion of it in future.

Mr. Costello

Can we get agreement on it being available two weeks before a debate?

Mr. B. Lenihan

I cannot give the assurance of 21 days.

Mr. Costello

In that case can the Minister of State give an assurance of two weeks?

Mr. B. Lenihan

I want to explain to the Deputy the reason for that. The reason I cannot give him a 21 day assurance is that the reference to 21 days in the third subsection of section 18 is a reference to the period to which the report should apply, not a reference to the period within which it should be submitted.

Mr. Costello

I accept that.

Mr. B. Lenihan

Therefore, it is impossible to do that. I agree with the Deputy that it is expressed in very legalese terms but that is the substance of it. I am prepared to say that a week's notice would be reasonable and I give the Deputy that assurance for the future.

Mr. Costello

What about ten days' notice?

Mr. B. Lenihan

In regard to the wider matters raised by Deputy Costello, he raised a fair point that the problem of witness intimidation is a serious problem as well as the danger of jury intimidation, and neither issues can be ignored in a consideration of all these matters. There is a body of legislation going back to 1939 and the then Government committed itself at the time of the Good Friday Agreement to a review of that legislation and Mr. Justice Hederman carried out that review. The Government has kept its obligations and kept faith with the Good Friday Agreement in that respect.

Mr. Costello

The Minister did not do anything about them.

Mr. B. Lenihan

If one peruses the Good Friday Agreement carefully it will be clear we did not say we would do anything about the review, but the Minister has——

Mr. Costello

There is something implicit about supporting the review and not putting it on the shelf.

Mr. B. Lenihan

——undertaken to bring proposals to the Government on the entire set of recommendations contained in the Hederman report, and this he will do. In the past year the emphasis has been on ensuring the enactment of the Criminal Justice (Terrorist Offences) Act 2005 and that has cleared the way for a full examination of the Hederman recommendations.

Mr. Costello

There will be no proposals before us by the time this comes back.

Mr. B. Lenihan

I will not tie myself to a date this afternoon but I assure the Deputy the Minister has to the forefront of his ambitions implementation of the Hederman review. It should be noted that the majority view in the Hederman report supported the continuation——

Mr. Costello

It has shown nothing so far.

Mr. B. Lenihan

——of special courts under Article 38 of the Constitution, a matter that people expressly envisaged when they enacted the Constitution in 1937. Therefore, that is not an emergency court either.

Deputy Ó Caoláin raised concerns about legislation of this character and referred to the more than 60 years of emergency law which he maintained perpetuates the conflict. The legislation has been in force since 1939 as part of the ordinary legislation of the State. It is there to protect the State and the existence of the State against those who deny its legitimacy. That is something that any independent Irish State is entitled to do. Of course, we can look at the details of it — that is what the Hederman report has done — and proposals can be brought forward. I dispute the suggestion made by Deputy Ó Caoláin and Deputy Ó Snodaigh that it requires an act of faith to enact this resolution. The Oireachtas made a considered determination in 1998 on what was required. This resolution is purely for the purposes of extending that for a further year.

Aengus Ó Snodaigh

It is not necessary.

Mr. B. Lenihan

It is not necessary either to suggest that this legislation is motivated by anti-republicanism. This State is a Republic and has been valued as such since 1937 in the dictionary sense and since 1948 in a statutory sense. We do not need that kind of comment on this legislation. We are going back over old wounds and I appreciate that, but the important point is that in any jurisdiction nobody sees this type of legislation as ideal and in an ideal world there would not be a need for it. As long as there are groups and individuals who are bent on usurping the democratic institutions of this jurisdiction the State and its institutions must have the means at its disposal to protect itself. Of course we would all like to see unlawful organisations wither away and then, please God, this legislation would wither away with them. As I said in my opening remarks, we are confronted also by international terrorism. Europe learned a hard lesson on 11 March 2004 when 200 innocent commuters going about their daily business were murdered and many hundreds injured. The 2005 legislation deals with that international terrorist threat.

The ongoing threats from the Continuity IRA and the Real IRA are outlined in the Independent Monitoring Commission's reports and Members can see what is proposed. In regard to the Good Friday Agreement, following the elections in Northern Ireland and Britain renewed efforts are being made to overcome the well-known obstacles to progress. Both Governments are anxious to make headway with the ultimate goal of promoting full implementation of the Agreement.

Question put: "That the motion be agreed to."

The Dáil divided: Tá, 74; Níl, 15.

Tá

• Ahern, Noel.
• Andrews, Barry.
• Brady, Johnny.
• Brady, Martin.
• Bruton, Richard.
• Callanan, Joe.
• Carey, Pat.
• Carty, John.
• Cassidy, Donie.
• Coughlan, Mary.
• Cowen, Brian.
• Crawford, Seymour.
• Cregan, John.
• Cullen, Martin.
• Curran, John.
• Davern, Noel.
• Deasy, John.
• Deenihan, Jimmy.
• Dempsey, Tony.
• Devins, Jimmy.
• English, Damien.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Fox, Mildred.
• Glennon, Jim.
• Grealish, Noel.
• Harkin, Marian.
• Haughey, Seán.
• Hoctor, Máire.
• Keaveney, Cecilia.
• Kehoe, Paul.
• Kelleher, Billy.
• Kelly, Peter.
• Killeen, Tony.
• Kirk, Seamus.
• Kitt, Tom.
• Lenihan, Brian.
• Lenihan, Conor.
• McEllistrim, Thomas.
• McEntee, Shane.
• McGinley, Dinny.
• McGuinness, John.
• McHugh, Paddy.
• Mitchell, Olivia.
• Moloney, John.
• Moynihan, Donal.
• Moynihan, Michael.
• Mulcahy, Michael.
• Murphy, Gerard.
• Naughten, Denis.
• Neville, Dan.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Dea, Willie.
• O’Donnell, Liz.
• O’Donoghue, John.
• O’Donovan, Denis.
• O’Dowd, Fergus.
• O’Flynn, Noel.
• O’Malley, Fiona.
• Parlon, Tom.
• Perry, John.
• Power, Peter.
• Power, Seán.
• Ring, Michael.
• Roche, Dick.
• Sexton, Mae.
• Smith, Brendan.
• Smith, Michael.
• Timmins, Billy.
• Twomey, Liam.
• Wallace, Dan.
• Wilkinson, Ollie.
• Woods, Michael.

Níl

• Boyle, Dan.
• Cowley, Jerry.
• Crowe, Seán.
• Cuffe, Ciarán.
• Ferris, Martin.
• Gogarty, Paul.
• Gormley, John.
• Gregory, Tony.
• Higgins, Joe.
• Morgan, Arthur.
• Murphy, Catherine.
• Ó Caoláin, Caoimhghín.
• Ó Snodaigh, Aengus.
• Ryan, Eamon.
• Sargent, Trevor.

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Ó Snodaigh and Boyle.

Question declared carried.