Dáil Éireann debate -
Tuesday, 14 Jun 2016

Vol. 913 No. 1

Offences against the State (Amendment) Act 1998: Motion

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I move:

That Dáil Éireann resolves that sections 2 to 4, 6 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 beginning on 30th June, 2016 and ending on 29th June, 2017.”

The House will recall that the Offences against the State (Amendment) Act 1998 was enacted following the Omagh bombing in which 29 innocent people lost their lives at the hands of terrorists. That appalling act of inhumanity lives in all our memories and our sympathies remain with the victims and their families.

The 1998 Act was a robust response by the Oireachtas that made a series of amendments to the Offences against the State Acts to enhance the fight against terrorism. Principally, the Act provided for: changes in the rules of evidence for certain offences under the Acts, including the drawing of inferences in certain circumstances; the creation of new offences, such as directing an unlawful organisation, the possession of certain articles and collecting information; and extending to 72 hours the maximum period of detention permitted under section 30 of the Offences against the State Act 1939. That atrocity demanded a clear and resolute response from the State in defence of the desire of the vast majority of law-abiding people on this island to live their lives in peace.

Section 18 of the 1998 Act, as amended by section 37 of the Criminal Justice Act 1999, provides that sections 2 to 4, 6 to 12, 14 and 17 must be renewed by the Oireachtas at specified intervals if they are to remain in force. By virtue of resolutions passed by both Houses of the Oireachtas in June 2015, these sections were continued in force for a period of 12 months.

Prior to moving any motion for renewal, the Act requires that I lay before the Oireachtas a report on the operation of the relevant provisions. The present report covers the period from 1 June 2015 to 31 May 2016 and was laid before the House on 10 June 2016.

The report, based on information provided by the Garda authorities, sets out the numbers of instances in which the various sections in question have been used over the period. The report also includes a table showing comparative usage for each of the years since the Act came into operation. The report indicates that two sections, namely, sections 6 and 12, were not used during the reporting period in question. However, it should not be inferred from this that these provisions are in some way redundant or unnecessary as the usage of the different sections varies from year to year.

It is the clear view of the Garda Commissioner that the Act continues to be a most important tool in ongoing efforts in the fight against terrorism. The Garda authorities have stated that the provisions of the Act are used regularly, which is evident from the report I have laid before the House. They are, in short, a necessary legislative support in the fight against terrorism.

The fact remains that there is a real and lethal threat on this island from so-called dissident paramilitary groups that are fundamentally opposed to peace. There has been and there will be no let-up in actions to tackle these groups. My decision to bring the second Special Criminal Court into operation was made in response to this threat. The court is now up and running. This underlines my determination and that of the Government to deal with serious crime affecting the security of the State.

The threat level in Northern Ireland is severe. The appalling murder of a Northern Ireland prison officer, Adrian Ismay, earlier this year highlights the morally vacant and nihilistic path followed by these groups in direct opposition to the democratic wishes and efforts of the majority on this island. The Garda authorities work tirelessly and in co-operation with their counterparts in the PSNI to counter the activities of these paramilitary organisations. They deserve credit for their ongoing work. A key priority for me is to combat the security threat. The additional funding I have secured for the Garda Vote this year will be partly used to support measures against terrorism. The Government and I are determined that these groups will not prevail. I know we have the support of right-thinking people in this House. It would be a happy day if legislative provisions such as these were no longer needed. The sad truth is that such a day has not yet arrived.

The second motion before the House proposes the continuation in force for another year of section 8 of the Criminal Justice (Amendment) Act 2009. Section 8 provides for a limited number of serious organised crime offences to be tried in the Special Criminal Court, thereby removing the possibility of jury-tampering or the intimidation of jurors or potential jurors. The offences in question are set out in Part 7 of the Criminal Justice Act 2006. Section 71A of the 2006 Act relates to directing the activities of a criminal organisation, section 72 relates to participating in or contributing to certain activities of a criminal organisation, section 73 relates to committing a serious offence for a criminal organisation and section 76 relates to liability for these offences committed by a body corporate. The 2009 Act deems that these offences are scheduled offences for the purposes of Part V of the Offences Against the State Act 1939. While this means the Special Criminal Court will hear trials for these offences, the Director of Public Prosecutions retains the power to direct that they should be tried in the ordinary courts.

As I said in my remarks on the previous motion, section 8(6) of the 2009 Act provides that in order to assist the Oireachtas in its consideration of these matters, I must prepare and lay before both Houses a report on the operation of the section in question. A report covering the period from 1 June 2015 to 31 May 2016 was laid before the House on 10 June last. Section 8 was not used during the period in question. It has not been used since 2009, but this neither invalidates the reasoning for having such a provision available to us for use in the appropriate circumstances nor diminishes its potential value in bringing organised criminals to justice. In fact, the operation of this provision to date highlights the considered approach of the DPP in using her discretion to direct that cases should be tried in the ordinary courts where it is possible to do so. Its critics might do well to bear in mind that this is positive proof of the balance that has been struck with this provision as a robust but proportionate power. In the period under report, there were 17 arrests under two of the four offences covered by section 8, comprising seven arrests under section 72 and ten arrests under section 73. Sections 71A and 76 were not used in the reporting period in question. Of course, a variety of other provisions of the criminal law have been and are used against gangs. My Department is examining whether other changes to the law might be made to tackle these gangs. I will bring forward changes to the law shortly to strengthen the powers of the Criminal Assets Bureau to seize the proceeds of crime.

None of us can be under any illusions about the dangers to society from organised crime. Recent gang-related murders in Dublin and the Dublin region have placed in stark relief the utter disregard of organised criminals for human life and the rule of law. Counteracting this danger presents very real challenges for the State. I assure the House that the Government is fully committed to giving An Garda Síochána the necessary resources to confront these criminal thugs and bring them to justice. As I have said, to this end I have secured substantial additional funding of €55 million for An Garda Síochána for the remainder of 2016. These funds will, among other things, be used to support the necessary activities to target gang-related crime. The Garda Commissioner has made clear to me her view that this provision will be required for some time to come. As Tánaiste and Minister for Justice and Equality, I must have the utmost regard for her analysis. Trial by jury is the standard for our system. It should be preserved to the greatest extent possible. However, none of us can afford to ignore the threat to the rule of law from violent organised criminals who will stop at nothing to protect themselves and their profits. We are duty-bound as legislators to ensure we respond robustly but proportionately to that threat. I commend these motions to the House.

Deputy Jim O'Callaghan

The purpose of the two resolutions before Dáil Éireann this evening is to determine whether this House agrees to extend the operation of 12 sections of the Offences Against the State (Amendment) Act 1998 and section 8 of the Criminal Justice (Amendment) Act 2009 for another 12 months. I am conscious that many Members of the House have previously spoken and voted on the annual resolutions on these sections. However, I am one of many new Members who have not yet had an opportunity to speak or vote on this question. For that reason, it is important for all Members, particularly new Members, to inform themselves of the particular legislative sections we are being asked to consider extending over the next few days before we vote on this matter. I believe the relevant sections of the 1998 amending legislation are proportionate and necessary provisions to deal with the threat from dissident republicanism and from international terrorism, as evidenced in the most appalling circumstances in Orlando over the weekend.

It is important to set out some of the measures that are provided for in the Offences Against the State (Amendment) Act 1998. For example, the evidential provision in section 2 provides that an inference can be drawn against an accused person in any proceedings for membership of an unlawful organisation if he or she fails to answer or gives "false or misleading" answers to any question. Section 4 provides that evidence of membership of an unlawful organisation can be inferred from certain conduct. Another interesting section of the 1998 Act is section 9, which makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission of serious offences or securing the apprehension or conviction of another person. Section 10 extends the maximum period of detention from 48 hours to 72 hours. It is important to note this can happen on foot of the authorisation of a judge of the District Court only. Section 12 makes it an offence for a person to instruct or train another person in the making or use of firearms or explosives.

Section 14, which is a procedural section, is probably the most controversial aspect of what we are debating. It makes the offences created under the sections I have mentioned scheduled offences for the purposes of the 1939 Act. This means the offences in question can be heard by the Special Criminal Court unless the Director of Public Prosecutions directs otherwise. It is important to note as well that there is a protection mechanism in this legislation. Under section 18, these provisions have to come back before this House on an annual basis. We are also being asked to extend the provisions of section 8 of the Criminal Justice (Amendment) Act 2009, which establishes certain offences in respect of organised crime. The specific offences we have to renew on an annual basis are the section 71A offence of directing a criminal organisation, the section 72 offence of participating in or contributing to the activities of a criminal organisation and the section 73 offence of committing an offence for a criminal organisation.

I should say at the outset that Fianna Fáil will be supporting these resolutions because we believe the statutory provisions under the Offences Against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009 both continue to be necessary because this island still faces a threat from dissident republicans. Unfortunately, there are still people on this island who believe the objective of republicanism is to try to force one group of people to agree with them. That is not the objective of republicanism. The objective of republicanism is to unite Irish people, rather than to divide them. One cannot unite Catholics, Protestants and dissenters by trying to bomb one of those groups into agreeing with one's political assessment. Unfortunately, a minority on this island still believes this is the way forward.

As I have said, we cannot ignore the role of international terrorism in the world. We saw that over the weekend, tragically. The horrific attacks in Orlando reminded us that certain people believe they can attack innocent individuals as a legitimate form of political warfare.

I am a civil libertarian and value the civil liberties we have. However, as libertarians, we need to stand up and defend the liberty we all take for granted. Sometimes that stance requires us to put through legislation which may make us uncomfortable. Those who wish to protect and cherish the Good Friday Agreement and those of us who oppose political violence need to recognise that any regression into violence needs not simply to be opposed politically but also requires an immediate tough response from An Garda Síochána. That is why we have these measures on the Statute Book. Everyone hopes we do not have to use these provisions. However, as seen in the report presented by the Minister, they are being used and, consequently, are necessary.

The second resolution concerns the extension of section 8 of the Criminal Justice (Amendment) Act 2009. This provision allows for certain criminal offences involving organised crime to be tried by the Special Criminal Court. Article 38.5 of our Constitution provides that a person is entitled to be tried by jury but there are exceptions, such as in the case of minor offences. Article 38.3 provides for trial by non-jury when a special court is established when it is considered that the ordinary courts are inadequate to secure the administration of justice. The overwhelming number of criminal trials in this country are conducted before juries who perform their functions diligently and admirably, as was evident by the jury that concluded the longest criminal trial in the history of the State last week.

However, there are some offences which cannot be tried by juries. It would be unfair of this State to put juries in a position where they would be under threat because of the nature of the offences they would be trying. We have an obligation to ensure our criminal justice system operates fairly. That system will not operate fairly where a jury can be nobbled or intimidated. Such a statutory regime is not unique to Ireland. In Britain, section 44 of the Criminal Justice Act 2003 provides for the capacity for a trial of a serious criminal charge to be heard without a jury and before a judge alone in circumstances where there is a threat the jury will be interfered with. We should not countenance a situation where justice could be denied as a result of a jury being interfered with.

Sometimes critics ask for the evidence of juries being intimidated. Section 41 of the Criminal Justice Act 1999 makes it a criminal offence to intimidate jurors or witnesses. Between 2006 and 2011, there were 50 convictions under section 41. Unfortunately, the intimidation of jurors and witnesses is a fact of life. We also need to remember that people involved in serious organised crime have previously murdered journalists and innocent bystanders who were simply in the wrong place at the wrong time. Does anyone actually think that those responsible for the Regency Hotel shooting or gangland feuding around Dublin would not intimidate jurors if they thought it would stop them from going to jail? I have no doubt that if any of them faced an ordinary jury that they would seek to threaten and intimidate individual jurors. The advantage of intimidating a jury is that if one gets an acquittal, one cannot be tried for that offence again.

As a legislator, neither I nor my party are prepared to allow a situation develop where ordinary citizens on the electoral register are asked to try cases when there is a serious risk that either they or their families would be subjected to intimidation and death threats during the course of a trial. What we must recognise is that there are occasions - fortunately very few - where a trial by a non-jury court is necessary to protect the integrity and fairness of the criminal justice system. However, there is an obligation also on those who challenge and condemn the Special Criminal Court to identify miscarriages of justice which have occurred in that court since 1998 and the introduction of these new measures. Does anyone actually believe the four members of the Provisional IRA convicted by the Special Criminal Court for the killing Detective Garda Jerry McCabe were victims of a miscarriage of justice? Does anyone believe those convicted by the Special Criminal Court of the murder of Veronica Guerin were victims of a miscarriage of justice? Does anyone believe those convicted by the Special Criminal Court of the murder of Shane Geoghegan or Roy Collins were victims of a miscarriage of justice? Does anyone believe the prominent republican, who was last year convicted by the Special Criminal Court of tax evasion, was a victim of a miscarriage of justice?

It is not enough simply to state that democratic societies must have trial by jury. The reason trial by jury is provided for in our Constitution is because it ensures a fair criminal justice system. The reason our Constitution also provides for special courts in certain instances is because it similarly recognises that a fair criminal justice system can sometimes only be achieved through a non-jury court. Accordingly, those who condemn and criticise the Special Criminal Court should identify the miscarriages of justice they say have arisen since 1998 when the new regime was introduced. One cannot just say this system violates human rights without identifying some detrimental consequence to the human rights of an accused person which has occurred as a result of the use of the Special Criminal Court.

Unfortunately, we do not live in a perfect or utopian society. We have dissident republicans or people who may attack us on behalf of international terrorists, as well as serious gangland criminals. We need to mould our criminal justice system so we can adequately respond to them to defend our civil liberties.

Deputy Jonathan O'Brien

I am sharing time with Deputy Ó Caoláin.

Acting Chairman (Deputy John Lahart)

Is that agreed? Agreed.

Deputy Jonathan O'Brien

On Deputy Jim O’Callaghan’s point about those of us opposed to the motions before the House, we do not stand alone in our opposition. The United Nations Human Rights Committee has also expressed its opposition to the ongoing use of the Special Criminal Court, outlining many reasons it considers it is unnecessary, as well as many other civil liberties groups outside of the Chamber.

It must be made clear that those responsible for the recent killings in the ongoing feud in Dublin or anyone involved in organised criminality must be brought to justice and face the courts. If they are found guilty, then they must face the sentences handed down to them. Both the Minister and Deputy Jim O’Callaghan spoke about improved and increased resources to An Garda Síochána to help combat organised crime. It should be noted, however, that in recent years it was the Fianna Fáil Party which actually closed Templemore College and stopped recruitment of members to the force, a measure continued by the previous Government. While we welcome the recent announcements of increased investment in tackling crime, it has to go beyond investing in armed response units. If one wants long-term solutions to deal with organised criminality, we need to prevent our young people from going down that path in life. We need to invest in programmes with a proven track record of working, such as the youth and juvenile diversion programmes. These are areas where we need increased investment.

I know all too well the scourge of drugs in communities, as I come from one which, for many years, has had a drug problem like many others. One common element in all of these communities is that the legislation we are being asked to extend tonight for a further 12 months does not have the effect of ending criminality in our communities. It has not worked, although it has been in existence for the past 20 years. We must look at international best practice and what actually does work. As I have said previously, what does work is increased investment at grassroots level in programmes which divert young people from straying down the path of criminality. This legislation has failed and will continue to fail in this regard.

On the point about jury intimidation, several years ago, the Keane murder case in Limerick had to be abandoned because the authorities could not get people to serve on the jury. Rather than having the trial in a non-jury court, it was transferred to Dublin, where a jury was sworn in and those individuals who are involved in the murder in question were convicted. It has been proved that juries can convict people involved in the highest levels of criminality.

In regard to witness intimidation, there are many models used in other countries throughout the world to protect witnesses. The system we have in place to protect witnesses is not adequate and we need to improve it.

We are certainly opposed to criminality, and we will support any measures which we feel will work towards ending criminality. However, in our opinion, the motions we are being asked to extend today will not do that. As I said at the outset, we are not alone in our opinion, given that the UN Human Rights Committee, Amnesty International and many other groups have stated this issue needs to be dealt with by this State. There are also obligations under the Good Friday Agreement to address the issue of the Special Criminal Court. As a co-guarantor of that Agreement, we cannot allow the Minister to forget that.

Deputy Caoimhghín Ó Caoláin

I thank Deputy Jonathan O'Brien for sharing time. The elements of legislation proposed for renewal today come up every year. I and my party colleagues are of the very strong view that it is neither appropriate nor justified to continue to renew this legislation. It is important that we recognise that emergency legislation and the entire raft of so-called Offences Against the State Acts, dating from 1939 to 1972, and again since 1998, with this renewable series of sections, serve no good at this point and, arguably, as I have articulated on the floor of this House these past 19 years, have served no good at any time.

The Good Friday Agreement, to which Deputy Jonathan O'Brien referred, requires steps towards security normalisation, including the progressive elimination of the Acts' provisions. It is not appropriate or justifiable to continue with this legislation, with the Good Friday Agreement now in place for a full 18 years. No emergency exists that could possibly justify the continuation of the draconian measures contained in the sections that are up for renewal or, indeed, the rest of the Offences Against the State Acts as a compendium. This legislation has a highly corrosive effect on human rights, civil liberties and democratic life in this State.

I want to make it abundantly clear that Sinn Féin has no difficulty facilitating the introduction of good law to deal with any shortcomings that may exist. Adequately resourcing the Garda and maintaining a consistent, committed strategy to tackling gang crime is what is needed. I want to see gang crime and the fear it generates removed from our streets and from our midst. These Acts and measures are clearly not working in that regard. It is my firm belief that new thinking is required. I look forward, in my capacity as the new Chairperson of the Joint Oireachtas Committee on Justice and Equality, to an opportunity to discuss these important matters further in a calm and measured way.

Needless to say, and as has already been stated, we will not be supporting the renewal of these powers, which we have opposed year upon year. I ask Members to reflect on the real and growing consensus at home and abroad in regard to the Special Criminal Court and related unnecessary legislation which should be removed. As Deputy Jonathan O'Brien said, the Irish Council for Civil Liberties, the UN Human Rights Committee, some high-profile barristers - although clearly not all are of the same view - and other public commentators, as well as Sinn Féin, have all expressed concern in the past about its continuing existence.

Again, it is critically important that I not only emphasise, but that the Minister and others fully understand and accept, that we will not be and most definitely are not soft on crime. It is critical there is proper resourcing and legislation to provide for effective address of the abuses and abominable actions we have witnessed on our streets, not only in the recent past but going back over some considerable time. We will not be supporting the motion.

Deputy Alan Kelly

I am speaking on behalf of our justice spokesperson, Deputy Brendan Howlin, and on behalf of the Labour Party. While we intend to support these motions, I want to express serious reservations about the technical procedures we adopt. In doing so, I recognise I am open to the charge that precisely the same procedures were adopted when we were in government. That is true, and it is also true that Ministers tend to confine themselves to operating within their own departmental responsibilities rather than inquiring too closely into the business of their colleagues. In any event, it is clear to me, from this side of the House, that we need to better arrange the role of the Dáil in extending this legislation.

In regard to the Criminal Justice (Amendment) Act 2009, I would make a comparison with another set of legislative measures with which everyone in this House is familiar - the FEMPI legislation. Those Acts had a major impact on vested statutory and contractual rights. When the first Act was introduced, it was recognised that the provisions might be vulnerable to constitutional challenge. The swingeing measures could be justified only by reference to the emergency economic circumstances in which we found ourselves. Hence, unusually, a series of facts are set out at the start of the Act, where it is recited that a serious disturbance in the economy and a serious deterioration in the revenues of the State had occurred, threatening the well-being of the community. The purpose was to justify the measures taken in the Act as being necessary but also proportionate in order to address the economic crisis.

We were also advised in government that, as economic conditions improved, we would have to unwind FEMPI. We were told that this was not just sound policy but was constitutionally necessary. As the facts on the ground diverted from the facts asserted in the recitals to the Acts, the risk would increase that the courts would look behind those recitals and assess the real facts. If the facts on the ground no longer justified the measures taken, then the Acts were liable to be struck down as a disproportionate interference with constitutional rights.

It seems to me that the comparison with the legislation we are considering now is instructive. In both cases, the Oireachtas makes a factual judgment in order to justify what would otherwise be unconstitutional. In both cases, the factual judgment has to be evidence-based. In both cases, the risk is that the courts may be invited to look behind the facts as asserted by the Oireachtas. In both cases, if the courts discover that the Oireachtas arrived at its conclusion on no evidence, inadequate evidence or out-of-date evidence, then the Act may be challenged and it may fall.

What we are dealing with here is the fact that the Constitution entitles every citizen to trial by jury on a serious charge. An exception can be made where it is determined in accordance with law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. A person or body closer to the facts - such as the Minister for Justice and Equality or the Government - could have been chosen to make that determination. However, under the 2009 Act, the Oireachtas abrogated to the two Houses themselves the responsibility for determining that the ordinary courts are inadequate to administer justice effectively.

If the Houses are to perform this function properly, then the Houses must inform themselves as to the factual situation. That our ordinary courts cannot adequately administer criminal justice is a strong assertion to make, to put it mildly.

Critically, it has the effect of abolishing what would otherwise be a constitutionally-vested right. It is, therefore, it seems to me, a conclusion that can only be arrived at on foot of an examination of the evidence.

In the case of the FEMPI Acts, we in this House were able to make a judgment call, based on the information available to us. Members of the Dáil vote expenditure and authorise taxation. The Houses receive statutory monthly Exchequer reports and a wealth of other economic data. The Members of the Dáil and Seanad would, therefore, be better placed than most to determine if there had been a serious deterioration in the revenues of the State. We cannot say this about the adequacy of our criminal justice system. We cannot say the determination we are being asked to make today is based on information that is generally available to us. This is why the 2009 Act requires the Minister to prepare a report and lay it before the Houses prior to extending the legislation for yet another year. The report was filed electronically last Friday. It has a cover page and five other pages of double spaced typing. It runs to a little over 1,200 words, less than the length of my contribution this evening.

I am not being unfair to the report to summarise it as stating the Garda Commissioner believes the legislation has proved effective in tackling organised crime. The Minister has stated her position on the report, which I do not have time to quote. However, we are not being asked to decide whether this legislation is either important or effective. Neither the Minister nor the Commissioner addresses the issue which we are, in fact, being asked to determine. The net question before us is whether the ordinary criminal courts, sitting with juries, are inadequate to try these offences. This is what we are asked to determine, and to determine not just in accordance with the 2009 Act but also in accordance with Article 38 of the Constitution. If we rubber-stamp this process year after year, then I do not think it will be beyond the wit of defence counsel in the Special Criminal Court to argue that a valid extension of the Act is a prerequisite to the trial of these offences in that court; that a valid extension requires a determination in accordance with law that the ordinary courts cannot administer justice in these cases; that a valid determination in accordance with law as to the state of the justice system in the ordinary courts has to be an evidence-based determination; and that the two Houses have either no or inadequate evidence before them to enable them satisfactorily to arrive at any such determination. I do not second guess the Minister and nor do I want to. What I am arguing for is a realisation that if it is to fall to the two Houses to make this decision then it must be an informed decision. This is not just good policy but it is also, it seems to me, a necessary precondition to ensuring the continuing constitutional validity of this legislation.

Many of the provisions of the 1998 Act which we renew from year to year should no longer be renewed. I say this not because I believe we should let them lapse but for the opposite reason. Some of these provisions should long ago have become a permanent part of our criminal law. I do not know why it strikes anyone as sensible, 18 years later, that we still annually renew a section that makes it an offence to direct an unlawful organisation. It should have been dealt with. Neither do I think anyone seriously disagrees that withholding information about serious offences should be a crime. We need a serious look at what our permanent criminal code should say about offences against the State, public order and organised crime, and then disentangle anything that we consider exceptional and suited only to emergencies. We should do this because we can create serious confusion and allow for errors, omissions and, possibly, injustices if we cannot arrive at a holistic overview.

There are many other issues to do with the 1998 Act, which the Labour Party intends to put in writing to the Minister as we do not have time to discuss them. I do not believe that either of these Acts entitles or enables us to repose unquestioning confidence in the assertions of the Minister. The time has come for the House to schedule a proper debate on the issues, which I have outlined, involved in keeping this legislation in place. This would allow all Members to have a serious and properly informed discussion. On this occasion we will support the motion, but I ask the Minister to please take on board the points I have made. I have raised a number of issues and the Houses need to bring forward new legislation to deal with many of the anomalies I have outlined.

Deputy Clare Daly

It is a bit distressing to be here again for our annual ritual debate about whether to retain for another year the emergency powers in the Offences Against the State Act and section 8 of the Criminal Justice (Amendment) Act. It is deeply ironic they are supposed to be emergencies but they have become a norm in this country. Every year the Minister tells us the threat is unchanged and is the same as it was the last time and that these are exceptional powers and must be retained. Given what we have witnessed over the past year, with the rise in organised crime, is this failure of the legislation to in any way deal with this situation not even evidence enough on its own of how futile it is, not to mind the appalling trampling wholesale on the human rights of individuals for it? Has the penny not dropped, given what has happened here while the Government has been utilising this legislation, that a different approach will have to be necessary?

We have to start with the international human rights institutions, the United Nations and the Council of Europe, which have repeatedly raised serious questions about the proportionality of Irish emergency powers legislation in this regard, particularly the area of non-jury courts. Too often in Ireland, when we get international human rights reports, be they on crime, abortion or whatever, we feel we are an exception and they are things we can ignore. This is not good enough, because human rights are supposed to be universal and applied in all situations.

This year we are voting again on whether to renew these exceptional powers, on the heels of one of the most horrendous explosions of violence on the streets of Dublin. It has been a horrifying few months, but what is striking is how little effect the so-called emergency legislation has had in dealing with these issues. However, year upon year we are asked to retain this bad law. Put simply, law and order responses on their own do not work and us ratifying again these appalling human rights violations will not make a single person in Dublin, or in any other part of the country, safer in bed tonight.

As long as we are following a doomed war on drugs, which is essentially a licence for crime gangs to print money and facilitating the drugs trade on the one hand and perpetuating disadvantage in parts of our city on the other, then the problems of crime are inevitably going to be there. We only need to take a look at the north inner city, the area of the latest rounds of violence, where we see huge levels of male unemployment. In some areas it is at 70%. One third of the areas in question are disadvantaged and 10% are extremely disadvantaged. Rather than dealing with the issues, we cut funding to vital projects in these areas. If we really wanted to deal with crime and organised crime this is where we would start. Take the words of Johns Hopkins and the Lancet Commission, hardly a bunch of firebrand radicals, who had this to say in their report on public health in March this year:

Policies meant to prohibit or greatly suppress drugs ... are portrayed and defended vigorously by many policy makers as necessary to preserve public health and safety, and yet the evidence suggests that they have contributed directly and indirectly to lethal violence, communicable-disease transmission, discrimination, forced displacement, unnecessary physical pain, and the undermining of people's right to health.

It also states, "Drug policy that is dismissive of extensive evidence of its own negative impact and of approaches that could improve health outcomes is bad for all concerned". It states a far more serious approach is decriminalising drugs as a gradual move towards regulated drugs markets.

That is where we should be if we want to talk about really dealing with crime, not flexing our muscles in terms of law and order and the provisions before us today that are non-compliant with human rights.

The Special Criminal Court is in part at the heart of some of these emergency powers. It has been repeatedly criticised by the UN Human Rights Committee for its lack of democracy. The UN Human Rights Council's special rapporteur for human rights defenders has drawn particular attention to the court. He said that it needed to be carefully monitored and that the council was very concerned about the recent expansion of the Special Criminal Court to include organised crime. Bodies such as Amnesty International, the Irish Council for Civil Liberties and so on have repeatedly criticised this human rights violation. There are a number of very worrying aspects to it. The fact that the Special Criminal Court has jurisdiction over both scheduled and non-scheduled offences is a particular problem. It might be a little dramatic, but what we are proposing here is a provision whereby somebody could be scooped up, arrested, charged with anything at all and have the DPP decide on whether to send them to a non-jury trial with no obligation to explain why and where they can be tried and convicted by judges who are essentially unaccountable. That might be a bit exaggerated but it is the reality in the case of some of these courts.

The justification of jury intimidation is laughable because we know there are ways of dealing with this without the jury being present: having it watch the proceedings on closed-circuit television, anonymising juries and so on. Even if the Government were not willing to do that, however, why is the problem of the blanket ban on juries not even considered as it is, say, in the UK, where the possibility of jury tampering and the risk have to be evaluated first, rather than having a blanket ban and a presumption of intimidation in that regard. In those cases there can be that violation of human rights only if other reasonable, preventative steps such as police protection and so on cannot be taken. We should consider these systems. If the Government were really worried about protecting juries, that is what it would consider.

We cannot ignore the reality that tonight, for example, a young person, Donal Ó Coisdealbha, is spending another night in Portlaoise Prison, having been there now for over a year. Mr. Ó Coisdealbha was arrested on 13 May and charged with membership of an illegal organisation along with other offences which have never been made clear to him. He had never been charged with anything or involved in violent behaviour or anything like that. Before he was arrested he was working full time. He finished college the previous year. He had no convictions or anything like that. In view of the category under which he was charged, however, he will face trial in the Special Criminal Court. He cannot get bail and it is likely that he will spend two to three years in prison before he will even be brought to a non-jury trial. I do not want to live in a society that has that kind of repressive legislation because it does not work, apart from violating human rights.

I find it utterly reprehensible that not only is the Government doing this, but it does not need to do it, not only because it is ineffective, but because it has other alternatives. If the Minister is really serious about dealing with organised crime, I do not know why she has not, for example, dealt with and initiated the Criminal Justice (Joint Investigations Team) Act, which has been on the Statute Book since 2004. The Act gives the power to the Garda Commissioner to ask another EU country to establish a joint investigation team with another European jurisdiction, but the Government has never initiated it. Why is the Government not linking up with the Spanish authorities in this regard, given that crime is global, and initiating this joint investigations team, JIT, provision that is already published, rather than asking us to ignore human rights considerations and again nod through repressive legislation which violates human rights and, sickeningly, does not actually work. It is appalling that we are being asked to do this in the absence of other legislation on the Statute Book being invoked, but more particularly when we are discussing crime and the drugs industry being at the heart of that and we are failing to deal with issues surrounding the criminalisation of drugs, that whole market which is being left to people to profit from, which is one of the key motivators of crime and violence in this city.

Deputy Richard Boyd Barrett

I will be opposing this motion. Let us state it boldly as it is: the war on drugs has failed and the war on gangland criminality via the Special Criminal Court or other repressive legislation has failed. We are just as concerned as the Minister and, in many cases I suspect, more concerned in that some of the Deputies on the left represent some of the poorest and most disadvantaged areas where the problems of drugs and gangland crime are felt most acutely. We do not believe that increasing or retaining very repressive powers for the State - which include eliminating the use of jury trial or extraordinary powers in terms of the right to detain people, to infer guilt and so on, which go beyond the normal process of justice - are justified or effective. They have not been to date and there is no reason and no evidence to suggest they will be in the future.

Mark Kelly of the Irish Council for Civil Liberties rightly described how "some electioneering politicians" were using the Regency attack as a "political football", and that is what is going on. We are all appalled by the gangland killings that we have seen recently and we are all acutely concerned for the communities, the families, the areas and so on that are affected by these problems and terrified by them and by the deeper, underlying problems of drug addiction, disadvantage, deprivation and so on that fuel this kind of gangland activity. However, none of this will deal with the problem. It has not in the past and there has been no serious evidence provided by the Government, even though it supports the retention of these powers, that it has done so because no such evidence exists. If we are serious, therefore, and if we are going to move beyond political posturing or, as Mark Kelly said, "electioneering", then we need to recognise that a radical departure in policy is necessary.

To me it is blindingly obvious. The Mafia in the United States was created by the prohibition of alcohol. The Mafia came from the misguided belief that prohibiting the sale and consumption of alcohol would eradicate it, and it did not. Instead it produced a massive criminal network which continues to dog the United States to the present day, and eventually in the United States they realised prohibition was not the way forward. That does not mean advocating excessive alcohol use or believing alcohol is a wonderful thing or not recognising that alcohol addiction and all the problems that come from it are a major problem. However, there was a final recognition that trying to ban it did not work and made the problem worse, and that is exactly the situation with drugs. There is no question about it. I am not even sure if hippies believe that drug use is a great thing. Nobody believes that. Trying to ban it, however, and driving it underground and into criminal networks has failed and has produced a worse problem in terms of the criminal networks that it has spawned and the gangland violence that is associated with it, so we need a bit of political courage and political honesty to say we need to move away from that failed policy.

Similarly, the only argument that is put forward for the Special Criminal Court is the intimidation of juries, and that is a serious issue.

Across the world, there are plenty of examples of how we can retain jury courts, which are a hallmark and benchmark of the most advanced form of justice we have. To disregard it is very dangerous while there are other ways to retain jury courts which can safeguard the safety of juries. This is the road we must take and it is why we oppose the motion.

Deputy Mick Barry

This annual motion to extend the draconian measures in the Offences Against the State Act (Amendment) 1998 have been consistently opposed through the years, first by Socialist Party Deputies and now by the Anti-Austerity Alliance. This year, we will oppose it again. The measures were introduced in the wake of the Omagh bombing, which saw widespread shock and revulsion on the part of people on both sides of the Border and in all communities. This public opposition pressurised the Real IRA and other paramilitaries and forced them back.

The shock of the Omagh bombing and people's desire for an end to attacks such as these and justice for the victims was cynically exploited by the political establishment to erode democratic rights. Although the legislation was significant, it was rushed through the Dáil in one day. Incredibly, the text of the Bill was made available to Deputies only hours before it was voted on. The measures represent a serious attack on some of the key basic democratic principles in a bourgeois democracy. The right to trial by jury, the right to silence and the right to call witnesses in a trial are impinged on. There is also a lengthening of the time for which a person can be detained after arrest, a shift in the burden of proof and the provision that the mere opinion of a garda is to be treated as evidence. These offences add to the already draconian offences against the State legislation.

When the legislation was rushed through Parliament, we were told it was a necessary evil that was needed in order to combat paramilitary organisations. On publication of the legislation, the then Taoiseach, Bertie Ahern, described the measures as draconian. The Minister who introduced the legislation, John O'Donoghue, described the Act as harsh during the debate. In 1998, the impression was given that this attack on civil liberties would be a temporary measure. However, each year we have been told that this harsh, draconian law is still needed due to threats posed by sectarian paramilitaries, criminal gangs or international terrorism.

The history of the Troubles is one in which the British State introduced measures such as internment and the Diplock courts, and repressive measures were also introduced in this State. We saw the deployment of troops and the militarisation of the Royal Ulster Constabulary, RUC. None of these measures ended the conflict. Neither were ceasefires by the paramilitaries brought about due to repressive legislation. As I alluded to earlier, regarding the pushing back of the Real IRA and others in 1998, it was the opposition to sectarian conflict by working class communities, both Roman Catholic and Protestant, that pushed back the paramilitaries and prevented escalation into all-out conflict.

Draconian legislation is not the answer. It is counterproductive. Terrorism and crime are fuelled by a number of factors. Poverty, injustice, anger against discrimination and racism, outrage against imperialist wars, and alienation from the political establishment can be exploited to recruit young people and direct them down the reactionary dead ends of terrorism and crime. People should not trust the capitalist establishment with these laws. Attacks on democratic rights brought in under the guise of combatting terrorism and serious crime have been continually used as a weapon to clamp down on people's right to protest and against social movements.

An example of this is graphically seen in the US, where the Patriot Act has been used to cut across dissent and protest. In France, following last November's attacks, the state of emergency imposed by President Hollande was used to forbid protests and gatherings, including those of striking workers and social movements, such as Nuit Debout. In Belgium, anti-fascist demonstrations were forbidden following the attacks there in March. These draconian laws occur in the context of the generalised attack on democratic rights. The imposition of austerity measures against the will of the vast majority has seen democratically elected governments overturned and economic blackmail being used to push mass poverty on millions. In Ireland, the Garda and the courts have been used against the movement against water charges, with nearly 200 arrested for peacefully protesting against metering. We are opposed to repressive measures of this kind and we also call for the repeal of all of these repressive laws.

Deputy Eamon Ryan

Professor Joe Lee was on "Sunday with Miriam", Miriam O'Callaghan's radio show on RTE, last Sunday. He is one of our best historians and I listened with interest to such an impartial and reasoned observer. He was superb. He said something one does not often hear. He said that for all our stupidity and failings, we were battered but we stood back up. We looked up and out and maintained that value of resilience and strength. Professor Lee said in the modern world we are a success. I agree, for all our failings and stupidity. At a recent meeting I was asked what I liked most about Ireland and what I thought was the reason for this success. I think it is because we have an unarmed police force and an independent judicial system.

Our system has flaws. There are instances when our gardaí are not straight and our courts get it wrong. However it is a strength. We do not stand up for our democratic institutions enough. Our political system is one of the other strengths, including this talking shop. Talking shops are not bad things. Those who give out most about talking shops are those in the media who make their money out of talking to people. We are part of the institutional fabric. I like the fact that this is a citizens' assembly, as Deputy Coppinger said earlier. We are a representative body.

The legal system is similar. Without a detailed knowledge or understanding of it, I see from afar that a jury is a fundamental cornerstone of the strength of an independent system. The Oireachtas is similar, albeit we are elected while a jury is selected on a random basis. A jury is a cornerstone of a republican, democratic, constitutional system. We rely on juries in ways that sometimes surprise us. There have been recent cases in which everybody might have expected the politically correct thing would be a certain judgment, but in which juries have surprised us. Having heard the evidence over a long period, they have refused to convict someone, whereas if the trial had been judged by other means, the accused probably would have been convicted. I stand by the concept of jury trials and the independence and strength of our judicial system being based on our adhering to certain intrinsic values and qualities.

It is understandable, and when in government the Green Party was involved in passing a motion on the legislation. It is tricky. One is in government and is faced with gangland murders, evidence is presented that suggests jury trials are not possible due to intimidation of witnesses, and one responds in legislation. It is appropriate that both pieces of legislation have the safety clause that they must go back to the Oireachtas which considers whether we will continue with these unusual provisions, which are breaches of the basic principles around evidence, jury trial, being able to draw inference and being able to imprison people for a period of time. It is appropriate that we consider it.

I have listened to what some of the previous speakers have said and have come to a common understanding that the pieces of legislation do not necessarily guarantee us the security they were introduced with the very good intention of providing. I agree with the speakers who see that the cause of the gangland problems in our city is the ability of gangs to make huge amounts of money from trading in drugs and that a far more effective approach to undermining this undoubted threat to our security and peace would be to change the laws around how we criminalise the possession or use of certain drugs.

We must be careful with it because, as Deputy Richard Boyd Barrett said, no Member will argue that would not have consequences - not health reasons - which should be taken into account. However, it would fundamentally be a better approach to take at this time to tackle the gangs rather than relying so much on different judicial proceedings to prosecute them, an approach that does not seem to work.

Similarly, when it comes to offences against the State, it is more difficult because, in some ways, it goes to the cornerstone of the State. If there are people with a fundamentally different view from the one I articulated - the view Professor Joe Lee expressed in the programme I referenced - and they believe the State needs to be changed radically through a revolutionary process or that, in any way, terrorist attacks can be justified in the name of an alterative vision for the State, that is a more difficult issue. However, the ultimate way to police against this and to defeat such a mentality is to adhere to the values of the Constitution and the inherent freedoms we expect the legal system to provide for us. The ongoing existence of these provisions in the Act is not worth the undermining of these basic principles of the democratic constitutional structures within the State.

The original crime which resulted in the instigation of this legislation was the Omagh bombings, as well as the failure of the policing system, and, despite the introduction of the legislation and doing what we could to support a worthy approach to bringing the people who had been involved in that terrible heinous crime to justice, we have been unable to do so. I believe in the structures of good policing in our independent judicial system. The provisions set out in this legislation which the Minister is asking us to retain will not necessarily assist us and the Green Party will not support their continued use. We should see how we survive without them.

Minister for Transport, Tourism and Sport (Deputy Shane Ross)

I am grateful to have the opportunity to contribute to the debate which has been extremely worthwhile because this legislation, as Deputy Eamon Ryan and others said, strikes at the heart of the democratic values we all champion and hold dear. Being in government I suspect I now see it a little differently, although I have always been in favour of the Special Criminal Court. However, I recognise the threat as being somewhat more immediate and difficult to oppose without these measures than perhaps I did when I was on the other side of the House. I take Deputy Eamon Ryan's point about what Professor Lee said about how Ireland had achieved so much despite all of its flaws.

It is good that the Government has decided, for the first time, to allow the motion to be taken without the use of a guillotine. It has been passed every year following a 45-minute debate, which was not a debate. It has been rushed through at this time of year as an embarrassment - the Government parties wanted to get it out of the way because they were ashamed that it had to be passed annually and did not want it to be recognised as a big issue, which it is. It is a major issue when a democratic country decides to suspend one of the pillars of democracy to which we aspire and for which many people fought. We all have in common the need to support the right of people to a trial by their peers. Happily, this year the debate will continue until every Member has contributed and we have had a civilised discussion about what the legislation means.

The Government that introduced the original Bill in 2008 and those which used the suspension of human rights ever since did so reluctantly. No Member likes this on the Statute Book. Nobody has an ambition to lock people up at will or to send them to the Special Criminal Court, while suspending the normal democratic values and legal tenets over which we stand, but we do it. The only argument is whether it is right to do so and whether it works. Those who say it is not right say it does not work, while those who say it is say it does work. I am not sure whether it does work, but it is right. When I think of the Omagh bombings which formed the original basis for the Act, I think of something absolutely and utterly horrific. I think of people who have absolutely no respect whatsoever for the rights of others and who are prepared to intimidate witnesses and jurors. When that is the scenario which is not as relevant today as it was, thank God - it applies to organised crime also where people show the same oblivious disregard for the lives of others - we have to ask ourselves whether the people concerned are entitled to the privilege of enjoying democratic rights others have. While 99.9% of people in the country are imperfect and do things to each other, of which we do not approve, they do not go around killing others or intimidating witnesses and jurors at will and get away with it. If we donate that luxury to them, are we legally giving them the green light to do the same thing again? They are living in a world which is completely and utterly different from the one in which the rest of us live. It is a world of total and utter immorality. They have absolutely no respect for the lives or human rights of others, yet some say they should be given the privileges for which they so noticeably have contempt and should be let go for the sake of a sacred democratic principle in which they have no interest whatsoever. It is the kind of luxury we cannot afford. We then have to ask the next question. If we refuse to impose these new laws of evidence and witness protection, will we allow them as a result to walk free and commit more murders? That is a price which is too high to pay.

Debate adjourned.